author: Mr. Presiding Justice Barry

text:
    Grace Votrian, Defendant in Error, v. L. W. Quick, Plaintiff in Error.

      Opinion filed May 29, 1933.

      John W. Freels, for plaintiff in error; Ropiequet & Freels, of counsel.
    McG-lynn & McG-lynn, A. M. Fitzgerald and H. 0. Moore, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Defendant in error will be referred to as the plaintiff and plaintiff in error as the defendant. On April 3, 1931, between 7:30 and eight o ’clock in the evening, plaintiff was riding east in a Ford car driven by her husband on State Route No. 12. J. L. Hughart was driving a Chevrolet and overtook the Votrian car at a point near the Hill Filling Station and attempted to pass it on the left. Defendant, at that time, was driving west and his car collided with the Hughart car. Defendant’s car also struck the Votrian car and plaintiff was injured. She sued defendant and Hughart but there was no service on the latter and the case proceeded to trial against defendant alone. The defendants were charged with concurrent negligence in driving their cars at too great a rate of speed and that defendant was driving his car about three feet over the black line and that by reason thereof there was not sufficient space for the Hughart car to pass between the other cars without a collision. Plaintiff recovered a verdict and judgment for $10,000.

Defendant insists that if he was guilty of any negligence it was not the proximate cause of the collision which caused plaintiff’s injuries. The evidence on the part of the plaintiff is to the effect that as the defendant approached and reached the point of collision he was driving his car about three feet south of the black line. Defendant testified that there is a curve in the road about 300 feet east of the filling station and that as he came around the curve he saw the other cars about 700 feet away. He says that he saw the lights of those cars when he came around the curve and when 50 feet away he saw the Hughart car turn out to go around the Votrian car. There is no evidence that the defendant then made any effort to pull over to the right so as to permit the Hughart car to pass between his car and the Votrian car. The result was that defendant’s car came in contact with the Hughart car thereby throwing defendant’s car around' so that it collided with the Votrian car.

In our opinion the evidence was sufficient to warrant the jury in finding that the defendant’s negligence in driving over the black line was a proximate cause of the plaintiff’s injury. Where an injury occurs through the concurrent negligence of two persons, and would not have happened in the absence of either, the negligence of both, is the proximate cause of the accident, and both are answerable; 22 R. C. L. 130. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes, and recovery may be had against either or all of the responsible persons; 45 C. J. 924. Where several causes combined to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, and that such other cause is not attributable to the person injured; 45 C. J. 920. Concurrent causes are causes acting contemporaneously and which together cause the injury, which injury would not have resulted in the absence of either; 45 C. J. 925. There may be more than one proximate cause of an accident, if each was an efficient one without which the injury resulting would not have occurred; Sweet v. Perkins, 196 N. Y. 482, 90 N. E. 50. The mere fact that the injury would not have happened but for the negligence of a third party is not sufficient to exonerate the defendant; Sullivan v. Ohlhaver Co., 291 Ill. 359. Where an injury proceeds from two causes, operating together, the party putting in motion one of them is liable as though it were the sole cause; Fisher v. Chicago, R. I. & P. Ry. Co., 290 Ill. 49.

If the occurrence of an intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury; 45 C. J. 934. If defendant was driving his car three feet over the black line as he approached and reached the point of collision, he was guilty of negligence. He saw the Hughart car turn out to pass the Votrian car and a reasonably prudent person would have anticipated a collision unless the defendant pulled over to the right to permit the Hughart car to pass between the other cars. Defendant’s negligence and Hughart’s negligence were acting contemporaneously and together caused the injury, which injury would not have resulted in the absence of either. Under the evidence in this record if defendant had turned his car but a few inches to the right it would not have come in contact with the Hughart car.

Defendant insists that the court erred in refusing instructions defining proximate cause. The abstract shows that some of the instructions given to the jury are not contained therein. Error cannot be predicated upon the rulings of the court in giving or refusal of instructions unless all of the instructions are set out in the abstract; Thompson v. People, 192 Ill. 79; Reavely v. Harris, 239 Ill. 526.

Complaint is made of remarks of the trial court, but we find nothing therein that would require a reversal. In our opinion defendant was not unduly restricted in the cross-examination of Mr. Hughart. While the first four jurors were being selected plaintiff wept and became hysterical and thereupon defendant moved for a continuance and the motion was denied. Plaintiff then left the court room and did not return until after the jury was selected. The evidence shows beyond question that she was very nervous as a result of her injuries. In our opinion we would not be warranted in reversing the judgment on the ground that the court should have continued the case.

When the defendant’s car and the Votrian car collided plaintiff’s head was driven through the windshield. In the opinion of the doctors she suffered a concussion of the brain but they found no broken bones and they testified they found no evidence of pressure on the brain. She sustained some cuts and other injuries and has been in a highly nervous state. The contention that the verdict is excessive, we think, is well taken. If plaintiff will file a remittitur of $5,000 in this court within 15 days from the date of the filing of this opinion, the judgment will be affirmed for $5,000, otherwise the judgment will be reversed and the cause remanded.

Affirmed on filing remittitur; othenvise reversed and remanded.


source: Caselaw Access Project

author: Mb. Presiding Justice Barry

license: Public Domain

text:
    G. H. Jacobs, Appellant, v. W. G. Frank et al., Appellees.

      Opinion, filed May 29, 1933.
    House & House, June C. Smith and Hugh V. Murray, Jr., for appellant.
    J. Paul Carter and Farmer & Klingel, for appellee W. Gr. Frank; Amos W. Tharp and Baker & Lesemann, for other appellees.
   Mb. Presiding Justice Barry

delivered the opinion of the court.

Appellant sued W. Gr. Frank, .Lee A. Friend, O. B. Hassler and Lee A. Friend and 0. B. Hassler, partners, doing business as Friend & Hassler, to recover on a written contract. By the terms of the contract appellant is the party of the first part and the parties of the second part are described as Friend & Hassler, representatives of W. Gr. Frank, and the contract was signed “Friend & Hassler, Representatives of W. Gr. Frank, per Lee A. Friend.” Demurrers were interposed to the declaration as amended and were sustained by the court. Appellant elected to stand by his declaration and there was a judgment in bar of the action.

It will be observed that W. Gr. Frank is not mentioned as a party to the contract, nor did he or any other person sign his name thereto. On the face of the contract it clearly appears that Friend & Hassler were .the contracting parties as agents or representatives of Mr. Frank. Parol evidence would not be admissible to show that it was intended by the contract •to'bind Mr. Frank; Vail v. Northwestern Life Ins. Co., 192 Ill. 567.

Even if parol evidence were admissible to show that it was in fact the contract of Mr. Frank, yet this suit could not be maintained. If Friend and Hasslér, or Lee A. Friend were the agents of Mr. Frank and had authority to bind him by this contract they would not be jointly liable with him. An agent having authority to execute a contract for his principal is not jointly liable with the principal thereon. In any view of the case the court did not err in sustaining the demurrers and the judgment is affirmed.

Affirmed.


text:
    Shelby Loan and Trust Company et al., Appellees, v. White Star Refining Company, Appellant.

      Opinion filed May 29, 1933.
    Warnock, Williamson & Burroughs, for appellant; Boss S. Campbell, of counsel.
    George B. Bhoads, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On July 22,1929, appellees filed their bill for injunction, averring that in November, 1920, they became the owners of a certain tract of 160 acres of land in Madison county; that Grassy Lake is located thereon and covers a large part of said land; that appellant is engaged in the business of refining oil, gasoline and other petroleum products and that its plant is in a northwesterly direction from appellees’ property; that the natural flow of surface water from the said plant is into Grassy Lake; that appellant has cast large quantities of refuse, oil, chemicals and pollution into the drains and water courses and the same were thereby carried into the said lake upon appellees’ property; that in conducting its said refinery appellant uses large quantities of water secured from wells and other artificial sources, in which water, during its use, appellant places large quantities of acids, alkalies, chemicals and other substances, which water, after being used and containing the substances aforesaid, is discharged by appellant into Grassy Lake.

Appellant admits, in its answer, that it is engaged in the business of refining oil, gasoline and other petroleum products; that it- uses large quantities of water from wells and other artificial source's and that the same is drained into the lake; that it maintains a purifying system and that before the water reaches the lake it is fully purified, and that it has not caused any refuse, oil, acids, alkalies, chemicals or other pollution to be discharged into the said lake. The trial resulted in a decree awarding an injunction as prayed.

Almost 1,700 pages of evidence were taken before the master and there are more than 500 pages of abstract. No useful purpose would be served by a detailed consideration of the testimony of the several witnesses.

Appellant insists that while the water of the lake was polluted, the pollution was caused by the Shell company and the tannery in the same vicinity. There is evidence that at least a part of the pollution was caused by appellant. That being true it would not be relieved from liability because of the fact that the Shell company and the tannery also caused a portion of the pollution.

The undisputed evidence is that appellant uses about 1,000 gallons of water a minute for every minute in the day of 24 hours and that appellant places in' that water acids, alkalies and chemicals and when the water has been used it is discharged into a drain which leads into Grassy Lake. Appellant says that the lake is a shallow body of water into and through which there is no current. It is a stagnant body of water. Appellant had no right or authority to pump such quantities of water from wells and other artificial sources and cast the same into the lake and thereby cause it to spread over the land of appellees.

. In its answer appellant relies upon the doctrine of laches. Appellees acquired their title in November, 1920, and the deed was then placed upon record. Since that ■ time appellant has improved and extended: its plant at great expense, but we 'find no evidence that would warrant us in folding '.that laches is a defense to the action.

Appellant insists that a permanent injunction would confer' rib substantial benefit on appellees and would work a great injury and damage upon appellant and for that reason the decree should be reversed. In our opinion that rule is not applicable to a case such as is here presented. No reversible error having been pointed out the decree is affirmed.

Affirmed.


text:
    P-H. Lumber Company, Incorporated, Appellant, v. Elizabeth Thielen, Appellee.
    Opinion filed May 29, 1933.
    Weihl & Weihl, Joseph W. Rickert and Beasley & Zulley, for appellant.
    A. D. Riess and A. 0. Bollinger, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee desired to have a summer house built and a well dug on her farm. Mr. Hill, appellant’s president, submitted a written unsigned bid, which, in so far as it applies to the well, is as follows: “It is suggested that the well be dug first before any portion of the building is erected. The price on the well dug and walled with limestone will be $4.60 a foot.” Appellant sunk a well to a depth of 44 feet, 18 feet through earth and 26 feet through rock. The total bill for the well was $1,183.19. Appellee paid $204.40 leaving a balance of $978.79.

Appellant sued to recover the balance and in the fourth count of its declaration it set out the bid and averred that after the bid was submitted the parties entered into an arrangement whereby appellee agreed that any blasting and rock work were to be extra. To that count appellee filed the general issue and a special plea denying any change in the original bid. The evidence on the part of appellant clearly showed that the alleged change was agreed upon before work was begun. A copy of the original bid was delivered to appellee but there was no evidence that she accepted the bid or authorized appellant to dig the well under that bid. On the contrary the undisputed evidence offered by appellant was to the effect that after the change was discussed and she was advised that blasting and rock work would be extra, she told Mr. Hill to go ahead and dig the well.

At the close of appellant’s evidence the court directed a verdict in favor of appellee. It clearly appears that the court was of the opinion that the unsigned bid was a contract in writing which could not be changed or modified by parole. The bid was not a contract in writing and under appellant’s evidence was not accepted by appellee as the contract under which the well was dug.

Where a party makes a proposition to another in regard to building a house for the latter, the mere fact that the former commenced the work with the assent of the latter, is not conclusive evidence of a special contract in respect thereto. The work may have been commenced under a quantum meruit. Waggeman v. Bracken, 52 Ill. 468. If the testimony offered by appellant is true, and we must assume that it is, the court erred in directing a verdict in favor of appellee. Appellant was entitled to aver and prove that before any work was done the original bid was changed by an agreément between the parties and that the well was dug in accordance therewith. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Phillip Ross et al., Appellees, v. St. Clair Foundry Corporation, Appellant.

      Opinion filed May 29, 1933.
    W. Gr. Murphy, for appellant.
    Wilson & Wilson and Kramer, Campbell, Costello & Wiechert, for appellees.-
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In 1923 Richard Wiechert was president and S. A. Ross, appellee, was secretary of the appellant. The corporation was in need of funds and the president requested Mr. Ross to secure $1,000 for its use. Mr. Ross and his father Phillip Ross went to the bank and borrowed that amount oh their own note and deposited $1,000 to the credit of appellant. That.note was renewed every 90 days until late in 1929. By mutual agreement between the parties appellant paid the interest directly to the bank instead of paying it to appellees. During all of that time Mr. Wiechert continued to be president of appellant. About every time the nóte, came due he admitted that the debt to appellees was due and that appellant would pay it when it was in a position to do so. Snch a promise was made as late as the winter of 1928. After Mr. Ross severed his connection with appellant, appellant paid no further interest. The last interest paid.by appellant was on September 28,1929. Appellees then paid the bank the amount of the note and sued appellant. A.jury was waived and appellees recovered a judgment for $1,185.26;

On the trial appellant offered no evidence. It filed a plea of the general issue and a plea of the five-year statute of limitations. An unqualified admission that a debt is due and unpaid, accompanied by nothing said or done to rebut the presumption of a promise to pay it, is sufficient to revive the debt against the Statute of Limitations; Sneed v. Parker, 262 Ill. App. 333; Carroll v. Forsyth, 69 Ill. 127. If the debtor clearly admits the debt to be due and unpaid, and uses language indicating an intention to pay it, a new promise to pay is implied; Walker v. Freeman, 209 Ill. 17.

Under the law and the evidence the statute of limitations presents no defense to the action. Some complaint is made in regard to the rulings of the court on the admission and exclusion of evidence but there is no reversible error and the judgment is affirmed.

Affirmed.


text:
    Grace Henderson et al., Appellants, v. Charles Leigh, Appellee.
    Opinion filed May 29, 1933.
    J. E. Carr, for appellants.

      No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On April 10, 1930, appellants’ agent delivered to appellee their deed for certain real estate in Marion, Illinois, and received from him his check for the purchase price, $434.90, drawn on the Marion Trust & Savings Bank and payable to appellant David Henderson. The deal was closed at Marion where the agent and appellee resided. Appellants are husband and wife and were then living at Cicero, Illinois. The agent received the check by noon and mailed it to Mr. Henderson on April 10 and it came to his hands about 5 p. m. on April 12. The bank closed and ceased to do business on that day. After it was closed appellee went to the agent and on inquiry was advised that he had sent the check to Mr. Henderson and that it was not presented for payment before the bank closed. Appellants recovered a judgment before a justice of the peace and appellee appealed to the circuit court. The parties waived a jury and the court rendered judgment in favor of Mr. Henderson for $186.

Appellee filed no brief and argument in this court. There is no evidence that Mr. Henderson agreed to accept the check as an absolute payment of the purchase price of the property conveyed. There is no evidence that the agent-had authority to make or that he made such an agreement. The check was received simply as a means of payment; In re Estate of Cunningham, 311 Ill. 311. It was presented for payment in due course but was returned unpaid. Under the evidence the court was not warranted in holding that the check was not presented for payment within a reasonable time, but even if Mr. Henderson were negligent in that regard, the great weight of the evidence is that appellee subsequently promised to pay the full amount of the check. Appellee filed a claim against the bank and received $186 in dividends. When he promised to pay the full amount of the check he had full knowledge of the facts and his promise to pay was sufficient to show a waiver of presentment and notice; Givens v. Merchants Nat. Bank, 85 Ill. 442; Simonoff v. Granite City Nat. Bank, 279 Ill. 248. In such a case it is not material whether he knew that under the law.he was discharged from liability; Morgan v. Peet, 41 Ill. 347. The judgment is reversed, and the cause remanded with directions to render a judgment in favor of David Henderson and against appellee for $434.90 with interest at the rate of five per cent per annum from April 10, 1930.

Reversed and remanded ivith directions.


author: Mr. Justice Edwards

text:
    O. E. George, Appellee, v. Citizens National Bank, Appellant.
    Opinion filed May 29, 1933.
    Green & Verlie, for appellant; Karl King Hoagland, of counsel.

      John F. McGinnis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellee, O. E. George, sued for and recovered a judgment in the sum of $290.50, against appellant, Citizens National Bank of Alton, for injuries claimed to have.been sustained to the thumb of his right hand, by the closing of a metallic door or gate in the grill-work in front of the door to the safety deposit vault of appellant.

The declaration consisted of two counts. The first charged that appellant, by its servant, so negligently operated the door, that the injury complained of, was occasioned. In the second count it was averred that the gate was not easily worked; that appellant did not provide a competent person to operate it; that appellee was obliged to open and close it himself, and that the gate or door, owing to its mechanical construction, did slam upon and crush the hand of appellee. To the declaration there was pleaded the general issue.

There were but two witnesses to the occurrence, appellee and Miss Lucille Young, an .employee of appellant. The latter testified, that as the former approached the grill door to leave, she opened the gate; that he passed through, turned about, faced the vault, placed his left hand upon the outside knob, his right hand half way up on the hinged side of the gate, between the door and the jamb, and that he remained in this position' for some five minutes, conversing with the witness; that he then pulled the gate to, mashing the thumb o.f his right hand, which in the meantime had remained in between the jamb and the hinged side of the door.

Appellee stated that as he was leaving, Miss Young opened the door for. him, and that as he passed through, the gate closed upon him, before he was clear of it, the bottom part striking his ankles; whereupon he .turned around to the left, with his right hand and arm extended, to stop the door; that his thumb slipped into the opening between the .door and jamb on the hinged side; that the door .continued to close, and his thumb was crushed.

A witness for appellant, S. M. Haw, testified that some time after the accident, he conversed with appellee, concerning same, and that the latter stated to him that after he got his lock box and put it back, he started to leave; that he stopped, after he had gone through the door, and talked to a young lady at the desk; after which he started to close the door, with his left hand on the knob, and that, as he pushed it, he put his hand to the sill of the door, and caught his thumb. In addition, there was undisputed testimony that the gate was perfectly hung and balanced, and would not close automatically; that when open, it could only be shut by the application of external force.

To sustain the first count of the declaration, it was necessary for appellee to prove that the closing of the door was due to its negligent operation, by the servant of appellant. The proof bearing upon the question is that Miss Young opened the gate. There is, however, no evidence that she thereafter touched it; even appellee does not so testify. In fact, he stated that he did not see anyone swing the door to, as he passed through. The only evidence of its being touched by anyone is the word of Miss Young that appellee, after passing through, then turned and conversed with her, took hold of the gate and closed it upon his thumb, together with the admission of appellee to Haw that he took hold of the door and shut it. It is thus apparent that the servant of appellant had no part in the closing of the gate, which was the act proximately causing the injury; hence it seems manifest that this material allegation of the first count was unproved, and being so, no recovery could be had under it. Ebsery v. Chicago City Ry. Co., 164 Ill. 518; Buckley v. Mandel Bros., 333 Ill. 368.

The charge in the second count was “that said gate or door, owing to its mechanical construction, did slam on and crush the hand of the said plaintiff, and a certain finger thereof. ’ ’

The proof is that the gate was perfectly balanced, and would only move through the application of external force. The record is devoid of any evidence that the construction of the door was such that it was dangerous to persons using same. Miss Young testified that the door could not swing by its own action, and appellee stated it was impossible for the gate to shut of its own accord; furthermore, that he knew of no mechanical device thereon that would cause it to slam, and that the only way for the gate to close was for some one to shut it.

This seems to establish beyond question that the door was closed by some agency independent of itself, and that it did not shut because of its mechanical construction, as alleged in the second count. There is no proof whatsoever to sustain the charge of such count, and the verdict cannot rest upon it. Chicago City Ry. Co. v. Bruley, 215 Ill. 464.

For which reasons the judgment is reversed.

Judgment reversed.

Finding of fact: We find that the appellant has not been proven guilty of the negligence charged in either count of the declaration.


text:
    Martin Reis and Beatrice Reis, Appellees, v. David Bixhorn and Rose Bixhorn, Appellants.
    Opinion filed May 29, 1933.
    Arthur R. Felseh, for appellants.
    McGlyhh & McGílynn, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

Upon the trial of this case in the court below, it was stipulated by the parties that on August 8, 1929, the Illinois State Trust Company, trustee, conveyed to Harry Novaclt, by special warranty deed, a lot in East St. Louis, which instrument contained the following covenant:

“It is agreed on behalf of the grantee that the premises herein described constitutes a portion of a strictly residential district, and that no buildings shall be constructed thereon except for residential purposes, other than garages and necessary outbuildings, and that such residence buildings, so constructed, shall not be used for any purpose whatever except as above mentioned. That no garages or other outbuildings shall be used or occupied for living quarters before the completion and occupancy of the main residence buildings located thereon. That all buildings erected on these premises shall be set back on the front of the lot at least twenty-five feet from the front street line, and that all such buildings must be made of brick, ór brick, stone and tile, and that the main residence buildings so constructed shall cost, at a fair, reasonable contract price, not less than $5,000, and that these restrictions shall extend to and be binding on the grantees, assigns, heirs and legal representatives forever.

“It is further understood that a violation, in whole or in part, of any of the above limitations and restrictions by the grantees, assigns or legal representatives, or any one claiming under them, shall cause the above described property to revert immediately' to the trustee herein mentioned, and shall entitle the trustee, or its lawful agent, "to take possession immediately as" herein provided, and that a portion of the consideration of this agreement is the covenants herein entered into.

“It is further agreed that this- property shall never be sold, rented or leased to a person of African descent, and that no sign or signboards of any kind or ■description shall be erected on the property herein described while unimproved.

And that subsequently, Novack transferred to appellants, David- Bixhorn and Bose Bixhorn, as joint tenants, the lot referred to. The instrument of" conveyance, however, did not contain, nor refer to, the restrictions previously mentioned; nor does it appear from the stipulation that either deed was ever recorded.

Appellees, Martin Reis and Rose Reis, are the owners of another residential lot, across the street from that of appellants. The former filed their bill for an injunction against the latter, alleging that they were violating the covenant of restriction, by using the garage upon the rear of the lot for commercial purposes; that is to say, that appellant David Bixhorn was in the newspaper business; that he caused large truck loads of St. Louis newspapers to be brought to the garage, at late hours of the night, where they were wrapped into bundles, and from there distributed to his customers; that such work was accompanied by much noise, causing appellees to be inconvenienced and disturbed in their sleep, and that as a consequence the market value of their residence property was diminished. They prayed for an injunction to restrain the use of the lot in question for business purposes.

The chancellor, after a hearing, ordered an injunction as prayed for, and appellants by this appeal seek to reverse such decree, alleging, among other grounds, that they at no time had any knowledge, either actual or constructive, of the. covenant of restriction in the deed from the Illinois State. Trust Company to Novack.

Restrictions of the character involved in this suit, are valid as matters of contract, and are binding upon subsequent purchasers of the premises, who, at the time they acquire title, have notice, either actual or constructive, of the limitation of the use of the property, contained in the former instrument of conveyance. It is essential that such later grantees, at the time of their purchase, know of the restrictive covenant in the former deed, or were charged by the situation or circumstances, with such knowledge, or put upon inquiry to ascertain such fact; otherwise they are not bound by its terms. McGovern v. Brown, 317 Ill. 73; Hays v. St. Paul M. E. Church, 196 Ill. 633. Moreover, the burden of proving such notice is upon the person who seeks relief under the restriction. McGovern v. Brown, supra.

In the instant case, there is no fact or circumstance shown by the evidence, that appellants had any actual knowledge of the covenant in the deed from the Illinois State Trust Company to Novack; nor is there anything in the testimony to show that they were charged with such knowledge, or put upon inquiry to ascertain whether such covenant in fact existed. There is no testimony that such deed was ever recorded, hence there is no evidence that the land records of the county were constructive notice to appellants of the restrictive covenant.

Appellees had the burden of proving that appellants, at the time they purchased the premises in question, had knowledge, either actual or constructive, of the restriction in the prior deed. The evidence fails to establish such facts. Without such proof, an essential element of appellees’ case was lacking, and they were not entitled to the relief sought.

The decree is reversed and the cause remanded, with directions to dismiss the bill for want of equity.

iReversed and remanded with directions.


text:
    Equitable Life Assurance Society of the United States v. E. W. Stilley, Appellee, and Mary Elizabeth Stilley, Appellant.
    Opinion filed May 29, 1933.
    J, Ii, Clayton and John A. Logan, for appellant.

      D. L. Duty, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On October 22, 1930, The Equitable Life Assurance Society of the United States, issued its policy in the sum of $1,000, upon the life of Owen H. Stilley, with double indemnity if death should be occasioned by accidental means. Mary Elizabeth Stilley, his wife, and appellant herein, was named as beneficiary.

On December 26, 1931, Stilley and his wife, having separated, entered into an agreement as to division and settlement of property rights, and the custody of their child. Stilley, on January 6, 1932, applied in writing to the insurance company to change the beneficiary in the policy to E. W. Stilley, his father; which application was mailed, and received at the home office of the company in New York City, on January 11,1932. Change of beneficiary, as requested, was indorsed upon the policy on January 12, 1932. It appears that Owen H. Stilley, the insured, was accidentally killed on January 10, 1932, or two days before the change of beneficiary was indorsed upon the policy.

Both Mary Elizabeth Stilley and E. W. Stilley claiming the beneficial interest in the policy, the insurance'company sued for and obtained a decree of inter-pleader, depositing with the circuit clerk the amount due under the policy, which is admitted to be $2,001.55. The two claimants to the fund were made parties defendant. After a hearing, the chancellor decreed that E. W. Stilley was the lawful beneficiary, and entitled to said sum of money; from this decree Mary Elizabeth Stilley has appealed.

One of the important questions in the case is whether the insurer was what is known as a regular life insurance company, or a mutual benefit association. The policy of insurance is but meagerly abstracted, and there is but little to guide the court shown therein, as to the character of the company. The only provision abstracted, which really throws any light upon-the subject, appears at the top of page 20 of the abstract: “Official receipt from the Company to Owen H. Stilley, showing payment of annual premium on policy bearing date October 22, 1931.” This tends to prove that the insurance was paid for in annual instalments, of fixed amounts, which is evidence that the insurer was a regular life insurance company, as distinguished from a mutual benefit association, where, instead of annual premiums, there usually are paid assessments of varying amounts, called for when occasions require. From such information as we are able to gather from the abstract, it appears that the insurer was an ordinary life insurance company.

The provisions as to change of beneficiary, are, that the insured might, from time to time, by written notice duly filed at the society’s home office, change' the beneficiary, “but such change shall take effect only upon- its indorsement on this policy by the Society.”

The rule governing in the case of old line insurance is, that the written application for change of beneficiary, is only a notice to the company as to the desired change, and as such, can only be accomplished by indorsement of the same on the policy at the home office of the insurer, in accordance with the terms of the policy. McEldowney v. Metropolitan Ins. Co., 347 Ill. 66.

The right of the insured to change the beneficiary was dependent upon the terms of the policy. Here the requirement was that “such change shall take effect only upon its indorsement on this policy by the' Society.” By the terms of the contract, the change could only be accomplished by compliance with such provision, and until the indorsement was actually made, there was no change. The insured died before the insurer made the final indorsement of change of beneficiary on the policy; hence there was no Change in the lifetime of the insured, and at his death the rights of Mary Elizabeth Stilley, the originally named beneficiary, became vested, and were not affected by the subsequent indorsement. Freund v. Freund, 218 Ill. 189; McEldowney v. Metropolitan Ins. Co., supra.

Appellee argues that the insured had done all in his power to accomplish the change, during his lifetime, hence a court of equity. should regard such change as effected. In the case of mutual benefit associations, such appears to be the rule; however, when the insurer is an ordinary life insurance company, and its contract requires an indorsement of the change to be noted upon the policy by the company, at its home office, before the change is effective, the principle, contended for does not.apply. Freund v. Freund, supra. We are of the opinion that there was no change of beneficiary in the policy, before the death of the insured.

Appellee further contends that the separation agreement between Stilley and his wife, bars appellant from claiming as beneficiary. But two paragraphs of . the agreement are abstracted, and from these it is disclosed that the appellant acknowledged the receipt of certain household goods, merchandise and money, in full settlement and satisfaction of all rights in and to the property of her husband, presently existing, or to be afterwards acquired; and also relinquishing all rights of inheritance, or to a widow’s award in his estate, or the right to administer upon same. It further provides for the execution of certain deeds in the future, if required, and for the delivery of a deed to the father of the husband, the custody of their child, and certain provisions relative to future divorce proceedings and alimony. It will be observed that so much of the agreement as is abstracted, does not refer, in terms, or by implication, to the policy of insurance in question.

Where a contract of insurance reserves to the insured the right to change the beneficiary, the latter has a mere expectancy, and no vested right or interest during the lifetime of the insured. 37 0. J. 579, § 345.

The policy in question being such a contract, the beneficiary had but an expectant interest in the proceeds of the policy, during the life of the insured. This was not property, nor a right of property, and same would not be included in a contract between the parties for the division of property rights, unless it be specifically included, or the text of the agreement showed that it was intended by the parties to be comprehended within its terms. No such intention is manifested by the language of the contract here, nor does it, in terms, refer to the policy of insurance.

In our opinion, the appellant is not barred as beneficiary by the separation contract.

For which reason the decree is reversed and the cause remanded, with directions to enter a decree in favor of appellant for the amount due upon the insurance policy.

Reversed and remanded with directions.


text:
    Florence Reinhardt, Administratrix, etc., Appellee, v. Louis Reinhardt, Appellant.

      Opinion filed May 29, 1933.
    Herbert F. Lill and P. K. Johnson, for appellant.
    Farmer & Klingel, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

This is a suit for a partnership accounting by Florence Reinhardt, administratrix of the estate of Arthur Reinhardt, deceased, appellee, against Louis Reinhardt, appellant.

In the year 1926, Arthur Reinhardt and appellant entered, by oral agreement, into an equal partnership in the meat business at Mascoutah, which continued until September, 1929, when Arthur Reinhardt claimed he was forced out of the business, and brought a suit for accounting. He shortly afterward died; appellee was appointed administratrix of his estate, and filed an amended and supplemental bill in the cause, following in general the allegations of the original bill, and in addition, averring that appellant possessed himself of all the partnership assets, running the business as his own, and using all the profits thereof. The bill prayed that an account be taken;' that there be ascertained the extent of the property and assets converted by appellant, and that he be decreed to pay the amount due appellee as such administratrix; that she have judgment against him for such amount, on account of such’ conversion of the partnership property, and for general relief.

Appellant answered the bill, denying the conversion; also, that he had refused an accounting; further averring that he was, and at all times had been, willing to sell and dispose of the assets, pay the firm debts, and divide the surplus equally between the parties hereto.

The cause was referred to the master in chancery, who rendered his report finding generally for appellee, and recommending a decree in her favor. Exceptions to the report were overruled by the chancellor, and a decree rendered, finding that appellant was guilty, as charged, of converting the partnership assets, and that he had never accounted for same; that at the time of the death of Arthur Reinhardt, the net value of his interest in the business, not including the good will, was the sum of $3,014.56; that appellant has paid, for the benefit of appellee, certain amounts aggregating $417.97, since the death of her husband, and that appellee is entitled to recover of appellant the difference between said amounts, or $2,596.59.

The decree, without making any finding whatsoever that there were any partnership debts or obligations, or the total thereof, proceeds to order that appellant assume all the debts of the firm, without stating the amount, and that he, within 30 days, pay to appellee said sum of $2,596.59; that in default thereof, execution issue. It further provides that upon payment by appellant of said amount, costs of suit, and the assumption by him of all the debts of the partnership, that appellee be divested of any and all claim which she may have to the property or assets of the firm.

From this decree appellant has appealed, contending, among other reasons for its reversal, that when a decree orders a dissolution of a partnership, there must be a provision for the payment of the firm debts, and for the distribution of the partnership property; that a personal judgment cannot be rendered in favor of one partner against another, until the firm assets have been converted into cash, and the liabilities paid therefrom.

The law appears to be well settled that in case a decree orders the dissolution of a partnership, it must, if there be debts, first order the conversion of the assets into money, and provide for the payment of the liabilities. Until this is done, there is no interest or equity in favor of either partner, in the firm property.

In Green v. Stacey, 90 Wis. 46, 62 N. W. 627, it was held that a personal judgment should not be rendered against one partner, for an amount supposed to be due him from the other, until the assets are reduced to cash, and the debts paid.

The case of Bagg v. Osborne, 169 Minn. 126, 210 N. W. 862, states the rule to be that the presence of debts will compel a sale of the assets, and a personal judgment may not be rendered against the individual partners until the assets have been converted into money, and that the best method of ascertaining the value of the property is to sell same. One partner cannot compel another to buy according to the valuation fixed by the court, nor should one have to submit to a sale on such basis. The fact that a sale cannot now be favorably made, does not modify the rule. No personal judgment is to be rendered against an individual partner until the assets have been converted into money.

The Supreme Court, in Trowbridge v. Cross, 117 Ill. 109, quoting with approval from an earlier case, stated, “it is the settled rule that no one partner has a right or share in the firm property, except the portion which remains after full payment of all debts and liabilities of the partnership; and it thence follows that each partner has a right to have the same applied to the due discharge and payment of all such debts and liabilities before any of the partners, or his personal representatives, or Ms individual creditors, can claim any right to the same.” The rule is similarly declared in Bopp v. Fox, 63 Ill. 540.

In the instant case, the decree does not find the amount of the firm debts, nor does it, in fact, find that there are any liabilities; yet, without such necessary findings, it proceeds to direct one partner to assume all the partnership obligations, when, so far as the chancellor’s findings are concerned, there were none; or, if there were, the amount thereof is not ascertained. It might well be that the firm obligations were more than its assets, in which event such an order would be highly inequitable.

In our opinion, within the rule as stated in the authorities cited, the decree should have found whether or not there were firm debts, and if so, the amount of same. It should then have directed a conversion of the assets into cash, and the application of same to the satisfaction of such liabilities; after which, if any overplus remained, it be divided between the partners according to their equities and interests, as the court, should find them.

For the reasons indicated, the decree is reversed and the cause remanded, with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Justice Fulton

text:
    William S. Wallace, Appellee, v. Commercial Life Insurance Company, Appellant.

      Opinion filed May 29, 1933.
    D. L. Duty, for appellant.
    Stone & Fowler and Hal G. Gallimore, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

William S. Wallace, appellee, brought an action of assumpsit against the Commercial Life Insurance Company, appellant, in the county court of Williamson county. The case went to trial on a declaration consisting of three special counts and the common counts. The first two special counts alleged the consolidation of the International Mutual Union with appellant and the third special count set up the contract between the two companies, averring that appellant thereby became liable on the contracts of International Mutual Union, including the contract sued upon. All special counts alleged the sale and transfer of all of the assets of International Mutual Union, together with all benefit certificates then in force, to appellant. Appellant pleaded the general issue. The cause was tried before the court without a jury. The court found the issues for appellee and entered judgment in his favor for the sum of $1,000. The appeal comes to this court from that judgment.

The International Mutual Union was a mutual benefit association, organized under the laws of Illinois, and on November 22, 1927, issued its certificate of membership No. 2,054 in the sum of $1,000 to Lena M. Wallace, with appellee, her husband, designated as beneficiary therein. All dues and assessments were paid to International Mutual Union up to and including the month of December, 1930. On December 31, 1930, appellant entered into what was termed a reinsurance agreement with International Mutual Union, whereby the said Commercial Life Insurance Company agreed to reinsure all certificates of membership of International Mutual Union that were in full force and good standing, subject however to the limitations, restrictions, conditions and provisions contained in the reinsurance agreement.

On January 2, 1931, appellant mailed a letter to Lena M. Wallace, in which was inclosed a “rider of assumption” and in this instrument it was stated that appellant “has assumed, as its own contracts, the certificates of membership of International Mutual Union, agreeing with the holders of said certificates that it will perform the obligation under said certificates in the place and stead of International Mutual Union, subject, however to all the limitations, restrictions, conditions and provisions stipulated by the terms of the reinsurance agreement.” In the letter accompanying the rider the appellant assumed all the obligations of the Wallace certificate of membership agreeing that it would perform such obligations in the place and stead of the International Mutual Union, subject to the same limitations of the reinsurance agreement. The letter further instructed the certificate members to make all payments to appellant and not to the old organization. It further stated “Through the reinsurance and consolidation of the International Mutual Union with the Commercial Life Insurance Company, each certificate is backed by the strength of the above combination.”

By the reinsurance contract all the books, records, papers, documents of every kind, good will, risks and assets of International Mutual Union were transferred to appellant. Following January 2, 1931, the appellant levied certain assessments on the Wallace certificate and these were all paid up to the death of Lena Wallace on March 3, 1931. Proper proofs of death were furnished appellant. Later appellee was notified that his claim had been allowed in the sum of $134.33, in accordance with the limitation contained in section six of the reinsurance contract.

It was urged that because of the age of Lena Wallace -and the amount of the assessments paid by her, she did not come within the class of International Mutual Union beneficiaries entitled to receive payment in full of the face of the policy, but did come within a class entitled to receive a limited amount; that having accepted the rider and having paid assessments to appellant she was held and bound to all the terms of the reinsurance agreement. • The certificate of membership issued to Lena Wallace by International Mutual Union was a contract or agreement to pay a certain sum of money at the time of her death, provided she paid the assessments as they became due. Neither the old company nor the new one could take any action which would impair the contract of the certificate holder unless such certificate holder consented to such change. Jones v. Loaleen Mutual Benefit Ass’n, 337 Ill. 431. The Commercial Life Insurance Company having contracted to take over the assets and assume the liabilities of the International Mutual Union, became primarily liable on the original certificate, and we do not believe the record in this case indicates that the certificate holder consented to a modification of her rights or the reduction of the amount due under the certificate of membership.

In the case of York v. Central Illinois Relief Ass’n, 340 Ill. 595, the court said, in a somewhat similar case, < < There js no doubt that the parties to a contract may by their mutual agreement accept the substitution of a new contract for the old one with- the intent to extinguish the obligation of the old contract, but one party to a contract cannot by his own acts release or alter its obligations. The intention must be mutual.” In all of the communications to the policyholder in this case there was no reference to any change in the terms of the certificate. To show an acceptance of a new and changed certificate as a substitute for the old, the burden was on the appellant to show that Lena Wallace, with actual knowledge of the terms of the new certificate, made her payments with the intention of accepting those terms and not in continuation of the original certificate. This in our opinion, was an affirmative defense and should have been pleaded by appellant. There has, however, been no proof of any intention to accept the terms of the new certificate and the judgment of the county court of Williamson county is affirmed.

Affirmed.


text:
    Pauline Branhorst, Plaintiff in Error, v. Harry F. Stamper et al., Defendants in Error.
    Opinion filed May 29, 1933.
    D. F. Moore and O. C. Smith, for plaintiff in error.
    Layman & Johnson, Carter Harrison and Moses Pulverman, for defendants in error.
   Mr. Justice Fulton

delivered the opinion of the court.

This was an action for fraud and deceit commenced in the circuit court of Franklin county by plaintiff in error, based upon alleged false representations made by defendants in error to her, whereby she was induced to become a stockholder and a depositor in the Illinois Bank and Trust Company of Benton, Illinois.

The declaration consisted of a single count which charged in substance that plaintiff in error was the owner of certain moneys of the value of $7,800; that the defendants in error and other persons conspired to injure her and deprive her of said moneys by false statements, for the purpose of inducing her to buy stock in the Illinois Bank and Trust Company then being organized at Benton; that the statements made to her were false in relation to the financial standing of the proposed stockholders in the new bank and in relation to the amount and value of the assets to be owned by the new bank; that plaintiff in error in reliance upon such statements purchased 30 shares of stock in the new bank and paid $4,500 for the "same and also deposited $3,300 in the new bank; that such statements made by defendants in error were untrue and made with the fraudulent purpose of obtaining her money without giving her any value for the same; that the new bank was insolvent from its inception; that by reason of the failure to collect the notes held by the new bank and the fraudulent conduct of the said bank and its officers and of the defendants in error in particular, the bank was closed by the state auditor and that thereby she was defrauded of her property in the sum of $7,800.

Defendants in error filed pleas of not guilty.

Trial was had before a jury and at the close of all the evidence for the plaintiff in error, the several defendants in error moved for a directed verdict of not guilty, which motions were granted, verdicts of not guilty returned by the jury pursuant to instructions of the court and judgment entered upon the verdicts, from which judgment this writ of error has been sued out.

The facts show that following the death of its president on October 19, 1929, the" Benton State Bank of Benton, Illinois, was closed for examination by the auditor of public accounts. The examination disclosed that the bank was in an insolvent condition, and an examiner from the auditor’s office was placed in charge pending a final disposition thereof, either through a receivership or by reorganization. At the time the bank closed plaintiff in error had on deposit $7,800. After examination the auditor approved a plan of reorganization which required the directors of the old bank to put in a certain amount of cash in place of specific assets which the auditor required to be taken out. That money having been raised, the auditor authorized the organization of a new bank to take over the assets and assume the liabilities of the old bank, the new bank to be known as the Illinois Bank and Trust Company of Benton, Illinois, with 1,000 shares of stock to be sold at $150 per share, thus giving the new bank a capital of $100,000 and a surplus of $50,000. All of the stock was sold and the new bank was opened March 21, 1930.

About six weeks before the new bank opened the defendants in error called on plaintiff in error at her home, her two sons and her daughter being present, and presented to her the plan of reorganization for the new bank, advising her of the requirements laid down by the auditor’s office, and discussed with her the question of her taking stock in the new bank, to be paid for out of her deposit in the old bank. Plaintiff in error and all three of her children testify as to the statements made by defendants in error at this conversation, which was the only talk that plaintiff in error or any of her family had with defendants in error about the sale of stock in the new bank. About a month later a meeting of prospective stockholders in the proposed new bank was held in Benton. About 100 or more were present and a representative of the auditor’s office was present to explain the proposed plan of reorganization. Edmund Branhorst, son of the plaintiff in error, attended the meeting as her agent. Following that meeting plaintiff in error through her son did take 30 shares of stock in the new bank and paid for the same the sum of $4,500 out of her deposit of $7,800 in the old bank, and left $3,300, the balance of said deposit, on deposit in the new bank, taking a certificate of deposit for same for one year at three per cent interest. The issuance of the stock and the arrangement about the deposit in the new bank was handled by her son with Mr. Barnett, the cashier of the new bank. The' new bank remained open for a period of six months, from March 21, 1930, to September 24, 1930, when it was closed by the auditor, a receiver appointed, and its affairs were in process of liquidation at the time this suit was started.

On the trial plaintiff in error sought to introduce oral evidence to show that several hundred thousand dollars worth of notes, mortgages and other securities taken over by the new bank from the old bank were worthless and of no value whatsoever. An objection to all of this testimony was sustained and plaintiff in error contends that it was improperly excluded. It is not entirely certain from the offers made as to whether this proof was to be made by opinion evidence or by facts and circumstances known to the witnesses concerning the solvency or insolvency of the makers of the notes or the value of the property securing the mortgages, but from the view we take of the entire testimony introduced by plaintiff in error, it would not be sufficient in any event. The evidence lacks one very essential element necessary to sustain an action for fraud and deceit when it fails to prove that plaintiff in error suffered loss, injury or damage. She had $7,800 on deposit at the time the Benton State Bank closed. She has entirely failed to prove the value of her claim against that bank. The testimony she sought to prove would have shown that more than a half a million of the notes and mortgages taken over from the old bank were worthless or nearly so. The liabilities of the old bank were well over $1,000,000. There was no attempt made to show the value of the remaining assets of the old bank, but the clear inference from the testimony offered would be that her deposit of $7,800 through a liquidation of the old bank was of little or no value. Under the new organization she secured 30 shares of stock paid for out of the deposit in the old bank and a new certificate of deposit for $3,300 in the new bank. The latter amount was at her disposal at any time during the six months the hank remained open. True it is that she incurred a $3,000 stock liability but the dubious value of her old deposit raises a serious question as to whether she gave up anything of value for her stock and new deposit. Without definite proof of this essential fact plaintiff in error could not recover. The elements of a cause of action for fraud and deceit are representation, falsity, scienter, deception and injury. Foster v. Oberreich, 230 Ill. 525. We are also inclined to tielieve that the record fails to show bad faith on the part of defendants in error. It is therefore the judgment of this court that the plaintiff has failed to sustain the material and essential elements of her declaration and that the action of the circuit court in granting the motion for a directed verdict was right and proper. The judgment of the lower court is, therefore, affirmed.

Affirmed.


text:
    Harry Baker, Administrator of the Estate of Donald Lee Baker, Deceased, Appellee, v. Fruin-Colnon Contracting Company and Terminal Railroad Association of St. Louis, Appellants.

      Opinion filed May 29, 1933.
    Josiah Whitnel, H. L. Browning and J. R. Mc-Murdo, for appellants.
    Beasley & Zulley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an action on the case brought by appellee, as administrator of the estate of his deceased son, Donald Lee Baker, against appellants, to recover damages for the death of appellee’s intestate, arising out of the accidental drowning of Donald Lee Baker, a boy 10 years old, in a pond of water made by appellants in the course of construction of a new union railroad passenger station in East St. Louis, Illinois. The verdict and judgment in the city court was for $2,000 in favor of appellee, and the present appeal is from that judgment.

The declaration consisted of one count and averred substantially that on August 30, 1932, the appellant railroad association of St. Louis was the owner of certain land in the City of East St. Louis, and employed the appellant contracting company to do certain excavating for the purpose of building levees and dikes around said land so that the space between said levees and dikes could be filled with sand, which was to be pumped from the Mississippi river; that the appellants, for the purpose of making such excavation, had in use divers large machines and employees, and on said date were engaged in digging and excavating, and had, shortly prior thereto, dug certain deep holes in the neighborhood of where the plaintiff lived; that said holes had become filled with water; that the dirt taken from said holes had been piled up so as to form high embankments and were open and easy of access to anyone, and that appellants permitted said deep holes, so filled with water, to remain open and exposed to the children in that neighborhood, which was thickly populated; that on said date, and for a considerable time prior thereto, children were permitted and allowed by the appellants to play upon said embankment and to wade in the water in said holes; that the water in some of the holes was from 12 to 15 feet in depth and that said embankments and holes so filled with water and pieces of boards, sticks and chunks floating on the water in said holes were unusually interesting and attractive to children in said neighborhood, including appellee’s intestate, and that while the children in the neighborhood, including appellee’s intestate, who was an infant 10 years of age, were wading in the water in said holes and playing with said boards, sticks and chunks floating on the water in said holes, and on account of the tender age of appellee’s intestate, he was unable to appreciate the danger, and did step into one of said holes where the water was 10 feet deep and was thereby drowned.

It was further averred that appellee’s intestate was in the exercise of due care and caution and the names and ages of the next of kin were set forth. General issue was filed by both the appellants and four special pleas were filed by each appellant upon which issues were joined.

While appellants have assigned numerous errors, it is our judgment that the main question is whether or not, as a matter of law, the pond of water in this case constituted an attractive nuisance. This question was raised by appellants on a motion to direct a verdict at the close of the appellee’s evidence and renewed again at the close of all the evidence, both of which were denied.

The evidence shows that the Terminal Railroad Association of St. Louis planned to build a new union station in East St. Louis, and for that purpose acquired property, bounded by Railroad avenue on the north, Main street on the east, Converse avenue on the south and Cahokia creek on the west, all in said city. In pursuance of this plan, the Terminal Railroad Association on May 12, 1932, entered into a contract with Fruin-Colnon Contracting Company for the construction of a sandfill, which would elevate the ground at the station site above the level of the surrounding ground. The site of the station is a short distance from the business district of East St. Louis. At the north of the bounded area is the plant of the International' Harvester Company, to the east is a residence section of the city, to the south is the plant of the Elliot Frog & Switch Company, and to the west is -Cahokia creek. On August 18, 1932, a dredging company began to throw up an embankment around the site where the fill was to be constructed according to the plan outlined in appellee’s declaration. A steam shovel scooped up the dirt and lifted it in place to form the embankment leaving deep holes or a trench in the ground. The embankment averaged about 15 feet in height above the level of the ground. Main street on the east was the only street that adjoined the site and the east embankment was about 400 feet distant from main street at its nearest point. On August 24, 1932, the dredging company began to pump sand and water in from the Mississippi river for the purpose of filling in with sand the space between the embankments. The water was ponded, so that the sand pumped in from the river would settle, and after the sand had settled the water was permitted to run off through Cahokia creek to the river. The distance between the embankments from éast to west in the vicinity of where the drowning occurred was about 150 feet. All the streets and alleys in the described area had been vacated and there were no buildings in said area except the factory of the International Harvester Company. The general topography of the land east of the east embankment was flat and it was impossible to see over the embankment from the vicinity of Main street. There was no fence or warning sign placed on or around the embankments. There was evidence that children were at different times seen playing on the embankment and also swimming or wading in the pond. .

Donald Lee Baker lived with his parents on an alley running east and west between Railroad and Brady avenues, and about 100 feet east of Main street. On the morning of August 30, 1932, the Baker boy and other children had been playing in the vicinity. Before dinner they talked about going swimming and decided to go to Jones park or Franklin park, where public pools were located. After dinner the boys met at Donald Baker’s house. Donald and some of the other boys wore bathing suits. The boys told Donald’s mother they were going to Franklin park. While leaving the home they learned from another boy that the Franklin park pool was closed, and so they all decided to go over to the pond hereinabove described. The boys proceeded westwardly across Main street aiid on to the easterly embankment. They climbed this embankment and walked along the top of it northerly and westerly and then southerly along the western embankment and then down to the water. The evidence shows that the water was deep near the easterly embankment and the reason the boys did not go in the water there was because they could not swim. Donald Lee Baker was not able to swim and only one boy, Walter Johnson, could swim. The deceased asked Walter Johnson to teach him to swim. The boys had been there about two hours before the drowning occurred. For about an hour Walter Johnson had been teaching Donald how to swim and then they got out into deep water and Donald was drowned.

There is seemingly a conflict in the decisions on the question as to when a nuisance is so attractive to children of tender years as to come within the doctrine requiring a private owner of land to respond in damages for the death of a child occurring upon his premises where he had left unguarded or exposed some dangerous attraction which causes the injury. In one of the late cases our Supreme Court said: “Without extending this opinion further by quoting from the many authorities on the subject, it is sufficient to say that the courts seem to be of one mind in holding that a canal, a pond, or other open body of water on private property, is not of itself an attractive nuisance, as that term is used in describing an instrumentality which will render the owner liable for injuries to a child attracted to and injured by it (citing cases from foreign jurisdictions). The case of City of Pekin v. McMahon, supra, is not in conflict with these authorities. In that casé this court did not hold that a pond of water was an attractive nuisance, but it held that a pond of water in which floating logs on which children were in the habit of playing were permitted to remain, when maintained near a driveway in a populous city, was under the circumstances such a dangerous instrumentality attractive to children as to render the owner liable for the drowning of a child playing there.” Mindeman v. Sanitary District, 317 Ill. 529.

It is the contention of appellee that appellants permitted children to play upon the embankments and to go swimming in the pond, and that in the water were boards, chunks and pieces of wood with which the children played, making the pond attractive to children, and that appellants were liable for the death of the boy in question under the principle established in City of Pekin v. McMahon, 154 Ill. 141. This case can be distinguished from, that holding in two essential particulars, first, because it did not adjoin a public thoroughfare and second because there is no evidence that appellee’s intestate was attracted to the pond because of any boards, sticks or other floating objects. In the Mindeman case the court further said: ‘ ‘ That a pond of water is attractive to boys for the purposes of play, swimming, and fishing no one will deny. But its being an attractive agency is not sufficient to subject the owner to liability. It must be an agency such as is likely, or will probably result in injury to those attracted to it. That many boys every year lose their lives by drowning is a matter of common knowledge. But the number of deaths in comparison to the total number of boys that visit ponds, lakes or streams for purposes of play, swimming, and fishing is comparatively small. It would be extending the doctrine too far to hold that a pond of water is an attractive nuisance.” That case cites many similar cases from foreign jurisdictions, with approval holding substantially the same doctrine.

This court was called upon to pass upon a similar case in Kelley v. First Bank & Trust Co., 256 Ill. App. 439, and affirmed the sustaining of a demurrer to a declaration which set up a somewhat similar state of facts to those disclosed by this record. Under the laws of Illinois we do not believe the pond of water in which the Baker boy was drowned, as shown by the evidence in this case, constituted an attractive nuisance and the court erred in not granting the motion to direct a verdict for the appellants at the close of appellee’s testimony. The judgment is therefore reversed with a finding of facts.

Reversed with a finding of facts.

The clerk will insert in the judgment the following: “The court'finds that the death of plaintiff’s intestate was not caused by any negligent act of appellants. ’ ’


text:
    Charles Mercer, Appellee, v. Alta Mercer, Appellant.
    Opinion filed May 29, 1933.
    Harry Faulkner and Henry B. Baton, for appellant.
    I. H. Streeper, III, and Roscos Forth, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from an order denying the motion of appellant to vacate decree, set aside default and for leave to file answer or plea.

Appellee filed a bill for divorce on May 10, 1932, the summons being made returnable to the May term of the Madison county circuit court, which convened on the fourth Monday of May.

Appellant was not served with summons but entered her appearance in writing on the day the bill was filed. On May 13, 1932, the court entered a rule upon the appellant to answer instanter. The appellant, nor anybne for her, was in court, and default was taken against her, the proofs heard and decree of divorce entered.

It is insisted in brief of counsel for appellant that, on the same date, May 13, 1932, just before the adjournment of the March term of said court, that an oral motion was made in behalf of the appellant to vacate said decree, but the record does not show any reference to such motion. On June 22, 1932, the written motion, supported by affidavit of appellant, was filed to vacate decree, set aside default and for leave to answer.

The merits of the bill for divorce are not in controversy here because no appeal was taken from the entry of the decree.

The entry of appearance signed by appellant was entitled to the March term, A. D. 1932, of the circuit court and reads as follows:

“I, Alta Mercer, defendant in the above-entitled cause, do hereby enter my appearance and waive service of process by the Sheriff ten days prior to the beginning of the present term of court; and consent to the entering of a default at this term of court; and to any and all orders that may be entered, the same as though I was personally present in court.

“Alta Mercer.

“Witness to Signature

“I. H. Streeper, III.”

Before any default was taken a rule was entered upon appellant to answer instanter. Since she was not in court and no one appeared for her, appellant under this rule had the entire day in which to answer and appellant could not be held in default until the expiration of a rule upon her to plead. A rule to .plead “instanter” requires a plea “before the rising of the court.” A. W. Stevens Co. v. Kehr, 93 Ill. App. 510; Northrop v. McGee, 20 Ill. App. 108; Risedorf v. Fyfe, 250 Ill. App. 122.

Appellant not being in court, and having no notice of the rule, had until the end of that judicial day in which to plead. The court was without power to order the default taken, to hear testimony and to enter the decree before such time expired.

It is the judgment of this court that the trial court prematurely entered default against appellant and should have granted the motion to vacate the decree of divorce.

The decree of the circuit court is therefore reversed and the cause remanded, with directions to set aside and vacate the decree of divorce entered in said cause..

Reversed and remanded with directions.


author: Mr. Presiding Justice McSurely

text:
    Martin Swanson, Administrator of the Estate of Margaret L. Swanson, Deceased, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 36,705.

      Opinion filed June 12, 1933.
    Hoyne, 0 ’Connor & Rubinkam, for appellant.
    Clyde L. Todd, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an action upon an insurance policy issued upon the life of Margaret L. Swanson, tried by the court, in which plaintiff had judgment for $533.44. Defendant appeals to this court, saying that the policy provides that it shall not take effect if on its date “the insured be not in sound health,” and that plaintiff failed to prove this condition.

The policy was dated March 23, 1931. The insured was a girl 13 years of age; she died August 13, 1931, of diabetes melitus and toxic goiter as a contributing cause. Defendant asserts that it was a condition precedent to recovery that plaintiff prove that the insured on March 23, 1931, was in sound health, citing certain supporting cases which seem to hold that the plaintiff has the burden "of proving that the insured was in good Jjealth at the date the policy was issued. Dashner v. Federal Life Ins. Co., 259 Ill. App. 632 (Abst.); Dumara v. The Western & Southern Life Ins. Co., 268 Ill. App. 626 (Abst.). Plaintiff asserts that this is a matter of defense, citing Johnson v. Royal Neighbors of America, 253 Ill. 570; Fahey v. Chicago National Life Ins. Co., 263 Ill. App. 637 (Abst.), and other cases. We think the better reasoning supports this latter view. Manifestly, when an insurance company accepts a risk it will be presumed that it is satisfied with the physical condition of the insured. If it has been misled in this respect, this can be presented in defense. However, in this case there was abundant evidence that the insured was in sound health at the date the policy was issued. Defendant’s agent and its assistant superintendent saw the insured March 18,1931, and certified that they were satisfied she was then in good health, a first-class risk, and recommended that the defendant company accept the risk. Foiir witnesses who saw the insured frequently during the winter, spring and early summer of 1931, testified that the insured did housework, played games, like jumping the rope, and acted like and appeared to be a normal child in good health. A doctor testifying as an expert said that diabetes melitus usually developed in a very short time in a child of the age of the insured; that the disease may develop within one to five months before death, and gave as his opinion that quite probably the insured was in good health on March 23, 1931.

Witnesses testified that the insured was ill only a few days before she died — two or three days. She was attended in her last illness by Dr. Pence. Defendant attempted to show that the death certificate made out by Dr. Pence contained some statements relative to the insured’s health prior to the time when he treated her. The certificate was competent only for the purpose of showing the cause and fact of death. Statements in the certificate not based upon facts within the doctor’s own knowledge were incompetent. Howard v. Illinois Trust & Sav. Bank, 189 Ill. 568; Henninger v. Inter-Ocean Casualty Co., 217 Ill. App. 542.

Dr. Pence did not testify, upon the trial, so that there is no competent evidence in the record tending to dispute the evidence on behalf of plaintiff that the insured was in sound health on the date of the policy.

Defendant seems to question the competency of the evidence of the lay witnesses. Such evidence, although given by non-expert witnesses, is competent. West Chicago St. Ry. Co. v. Fishman, 169 Ill. 196; Chicago City Ry. Co. v. Van Vleck, 143 Ill. 480.

The evidence showed that defendant waived the filing of formal proof of death. The policy provides that the defendant company will pay the amount of the policy “immediately upon receipt of the due proof of prior death of the insured. ’ ’ No particular form of proof is required. Defendant had two policies on insured’s life which were sent to it upon her death; it paid one policy and returned the other (the policy now in suit), denying liability. This was sufficient notice of the death of the insured.

There was no reversible error upon the trial and no substantial defense was presented. The judgment is, therefore, affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


text:
    Anna Corcoran, Appellant, v. Nellie Corcoran Williams et al., Appellees.
    Gen. No. 36,715.

      Opinion filed June 12, 1933.
    Rehearing denied June 26, 1933.
    Young, Pares & Peterson, for appellant.
    Anderson & Clarice, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Upon the ground of newly discovered evidence petitioner filed her petition in the circuit court asking leave to file a bill of review praying for review and reversal of a prior decree entered in a partition proceeding between the same parties. The chancellor denied leave to file the bill of review and the petitioner appeals from this order.

A statement of the prior proceedings and the conclusion of the Supreme Court are found in Williams v. Corcoran, 346 Ill. 105. It there appears that Nellie Corcoran Williams and Margaret S. Demling, sister and niece respectively of John Corcoran, who died intestate, filed a bill in the circuit court of Cook county praying partition of certain residence property in Oak Park owned by the intestate. Anna Corcoran, another sister, was made defendant and she filed an answer and a cross-bill, in both of which she claimed ownership of the property by virtue of an alleged agreement between herself and her brother John, whereby she was to receive it in return for keeping house for him and taking care of him until his death; by her cross-bill she prayed for specific enforcement of the agreement; the cause was referred to a master who, after hearing evidence, filed a report recommending a decree in partition and that the cross-bill be dismissed for want of equity. From the decree entered in accordance with this recommendation Anna Corcoran appealed to the Supreme Court, which affirmed the decree of the circuit court. In the opinion the evidence tending to support Anna Corcoran’s claim is set forth in some detail. Most favorably considered from her standpoint, there were occasional statements by John that when he died everything would go to his sister Anna. The opinion also shows that Anna filed a claim against her brother’s estate in the probate court, claiming some $23,000 for services rendered to him as housekeeper, cook, laundress, etc., and for damage to health. This claim was dismissed after hearing. The opinion concludes that the evidence adduced by Anna fell short of establishing a contract which a court of chancery could undertake to enforce.

The petition for leave to file a bill of review alleges that after the affirmance of the circuit court decree on July 28, 1932, there was found among some old newspapers in the basement of the house owned and occupied by John Corcoran at the time of his death a certain paper in his handwriting and signed by him, containing the following words:

“I hereby will and bequeath to my s,ister Annie all my property both personal and real this 8 of May 1928.

“John Corcoran.”

Petitioner argues in this court that this writing is strong corroborative evidence of the alleged oral agreement between herself and John whereby she was to receive the property; that the finding of the chancellor in the partition suit would probably have been otherwise had this writing been in evidence.

Bills of review on the ground of newly discovered evidence are not favored by the courts. Permission to file such a bill is not a matter of right but is in the sound discretion of the court, to be exercised cautiously and sparingly and only under such circumstances as demonstrate that it is indispensable to the merits of the cause that the bill be filed. Corbly v. Corbly, 304 Ill. 323. Newly discovered evidence upon which a review and reversal of a former decree is asked must not be cumulative but must be of an important and decisive character. Hogg v. Eckhardt, 267 Ill. App. 506; Walker v. Douglas, 89 Ill. 425. The decision of the chancellor in passing upon such a motion will not be lightly disturbed by an appellate tribunal. Karsten v. Winkelman, 126 Ill. App. 418; Elzas v. Elzas, 183 Ill. 132.

The newly discovered writing is not a will, and standing alone does not prove a contract of John to will his property to his sister. At best it tends to corroborate some of the rather loose oral statements attributed to John with reference to his sister Anna having his property when he died. If it had been in evidence it would have been considered by the court, and although it might be persuasive it is not necessarily controlling. The writing may be tangible evidence of a desire of the intestate to give his sister Anna his entire estate, but it cannot be said that it is so decisive and conclusive as to justify a decree for specific performance. As was said in Rodman v. Rodman, 112 Wis. 378, it is a matter of common knowledge and experience that while wills are frequently made, contracts to make a will in a certain way are very infrequent. In Monsen v. Monsen, 174 Cal. 97, it was held that the making of a will has no tendency to show that there is a contractual obligation to make such a will. See, also, Studer v. Seyer, 69 Ga. 125.

We cannot close our eyes to the fact that the Supreme Court has held that there was no contract between John Corcoran and his sister Anna to give her his property. The newly discovered writing might make the case for her a little stronger, but it would not be decisive. Petitioner’s counsel cite many cases in an able brief in which, under various circumstances, it was held that a will executed by a promisor is strong corroborative proof that the will was executed in compliance with a contract. But the essence of the argument based on these cases is that the filing of the instant bill of review should have been allowed on the ground that the court might possibly, by reason of the additional fact of the writing, reverse its former conclusion. This is in effect to say that the new evidence is merely cumulative and not decisive in character.

The original case should not be opened up solely upon the chance that the additional evidence might persuade the circuit court and the Supreme Court to change their views. The Supreme Court of the United States in United States v. Throckmorton, 98 U. S. 61, said in substance that the mischief of retrying every case in which a decree was rendered because of some subsequently ascertained fact “would be greater by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.” And in Boyden v. Reed, 55 Ill. 458, the court said of evidence to justify the filing of a bill of review, that it must be such as would show that a different result “would necessarily have been produced if it had been heard on the former hearing, ’ ’ and that, if it was the general rule to allow bills of review “it would lead to most disastrous results and many decrees much older than this could be set aside. ’ ’

The order of the circuit court denying leave to file the bill of review is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice O’Connor

text:
    Sam Caruso, a Minor, by Malia Caruso, Next Friend, v. Ray Pelling and B. A. Railton Company, Appellees. Charles G. Palmer, Intervening Petitioner, Appellant.
    Gen. No. 36,546.

      Opinion filed June 12, 1933.
    Charles Gr. Palmer, for intervening petitioner, pro se; Clyde C. Fisher, of counsel.
    H. H. Patterson, for appellees; Edmund C. Maurer, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Sam Caruso, a minor, by Malia Caruso, his mother and next friend, brought an action against Bay Pelling and B. A. Bailton Co., a corporation, to recover damages for personal injuries claimed to have been sustained by the minor, Sam Caruso. The case was settled by the payment of $1,500. Charles G-. Palmer, a practicing lawyer of Chicago, who had been retained to prosecute the personal injury claim and who was later supplanted by other counsel, filed his petition claiming a lien under the Attorney’s Lien Act, Cahill’s 1931 Statutes, page 157. There was a hearing on the petition and answer, the petition was dismissed and the petitioner, Palmer, appeals.

At the close of the evidence the court said: “I think the plaintiff has made out his case. Why should not the defendant be held for the loss 1 ’ ’ Then followed an argument, counsel for defendants contending that a notice of the lien as served by the petitioner on the defendants was not based upon the contract entered into by the petitioner and the minor’s mother. The court sustained this contention and dismissed the petition.

The record discloses that the petitioner, through a former client, came in contact with the minor, his mother and his 22-year-old sister, and the matter of retaining the petitioner to represent the minor on account of injuries received by him on February 3, 1930, was discussed, and on March 23, 1930, an agreement in the following words was entered into: “I hereby retain and employ Chas. G-. Palmer, of Chicago, Illinois, as attorney, to represent my son Sam in the prosecution and recovery of my claim for damages arising from personal injuries . . . received by my son Sam through the negligence of B. A. Railton Co. or Ray Pelling or person liable on the 3d day of Feb. 1930, and I agree to pay to said Chas. Gr. Palmer an amount equivalent to 33 1/3% of the amount received or recovered by settlement or by suit. No Settlement to Be Made Without My Consent. (Signed) Malia Caruso, mother of Sam Caruso, Claimant. Date Mch. 23, 1930. I hereby accept the above retainer and employment in said cause of action and agree to prosecute the same to settlement or judgment on the terms above set forth. (Signed) Chas. Gr. Palmer.”

On the next day, March 24, 1930, petitioner sent a notice to the two defendants by registered mail, which notice is as follows: “March 24, 1930. B. Railton Co., 465 W. Erie St., Chicago, Ill., Mr. Ray Pelling, $734 Winthrop ave., Chicago, Ill. Notice of Attorney’s Lien. Gentlemen: I represent Sam Caruso, fourteen-year-old boy, struck and run down by car driven by you on February 3, 1930, at or near Hill and Wells Streets, Chicago.

“He has agreed to pay the undersigned for professional services as a fee a sum equal to one-third of whatever amount may be recovered by settlement or suit and the undersigned therefore claims a lien upon such demand or cause of action for such fee as by statute in such case made and provided.

“If you desire to settle this matter without suit, kindly get in touch with me within the next five days or advise me the name of your insurance carrier or attorney so that the matter may be expeditiously handled. ’ ’ This was signed by the petitioner.

On the same day, March 24, petitioner wrote Mrs. Malia Caruso, Sam’s mother, acknowledging contract of employment for the prosecution of the claim of her son Sam, and advising her that he had served a notice of Attorney’s Lien on the defendants. March 29,1930, defendant B. A. Railton Co. wrote petitioner, stating that at the request of defendant Felling it acknowledged receipt of petitioner’s notice of Attorney’s Lien and had forwarded it to the Eagle Indemnity Co., which carried insurance on the automobile involved in the accident in which Sam was injured, and requesting petitioner to take the matter up with the Indemnity company. Thereafter negotiations were had between the petitioner and the Indemnity company looking toward the settlement of the claim. A. D. Weaver, an attorney, and claim superintendent of the Indemnity company, testified that petitioner stated settlement probably could be made for $1,500, that the witness had recommended payment of $1,000.

Thereafter petitioner continued to work on the preparation of the case, and other negotiations were carried on until April 17, 1930, when he received a letter written by Sam Caruso’s sister, aged 22 years, advising petitioner that they had retained other counsel as petitioner’s method in handling the matter was unsatisfactory.

July 2, 1930, Sam Caruso, the minor, by his mother and next friend, represented by other counsel, was given leave by the circuit court of Cook county to sue as a poor person. The suit was filed; pleas were filed by the defendants who were represented by Mr. Weaver, attorney for the Insurance company. Thereafter the claim was settled by defendants paying $1,500. The petitioner claims he is entitled to $500 ■ under his contract of employment and notice of Attorney’s Lien under the statute.

The position of defendants is that the statute authorizing an attorney’s lien must be strictly followed or the claim for lien will be disallowed, and they say (1) that the contract in question “is not a contract with the mother and next friend of Sam Caruso, a minor,” that it does not purport to be made on behalf of the minor and is therefore void; and (2) that the notice of lien served by the petitioner on defendants is not based on the contract for the reason that the notice states that the petitioner was employed by Sam Caruso, a 14-year-old boy, and that Sam had agreed to pay the petitioner a fee equal to one-third of any amount that might be recovered, while the contract was not with the boy.

We think neither of these contentions is of any substance. The uncontradicted evidence is that before petitioner was retained the matter was discussed by him with Sam’s mother and his sister and the contract signed by the mother, as disclosed by the contract quoted above. The notice of lien sent to the defendants gave them all the information the law required. They were advised that the petitioner had been retained to represent the boy, Sam, to settle or prosecute his claim for damages on account of personal injuries, advising them that petitioner was to receive one-third of the amount recovered. Obviously Sam, being but 14 years old, could not make a binding contract; it had to be made by someone in his behalf. It was signed by his mother, who afterward went into court as Sam’s next friend and obtained leave to bring suit, which was accordingly done. Both defendants were notified of the petitioner’s employment and of the amount of the fee that was to be paid, and they negotiated with the petitioner for nearly a month, so that if they are now required to pay $500, it is the result of their own doing-. In Case v. Emerson-Brantingham Co., 269 Ill. 94-97, which is similar to the case before us,, the defendants, after having been notified of a claim for attorney’s lien, settled the claim without notice to the attorney. The court said that the law required them in making the settlement to “retain sufficient funds from the amount of the settlement to satisfy the lien of the attorney for his fees. . . . The fact that appellee has paid to Case the entire amount is not controlling. It is simply compelled to pay one-half of the said amount over again because it did not withhold the portion due appellant under his contract after notice of such contract.”

In the instant case, whether the defendants paid the entire amount to plaintiff or whether they retained $500 to satisfy the petitioner’s claim is not clear, but in any event it is not of controlling importance. We think plaintiff is entitled to his lien for $500. Zazove v. M. St. P. & Ste. Marie Ry. Co., 218 Ill. App. 534; Tulka v. Chicago City Ry. Co., 259 Ill. App. 234; Baker v. Baker, 258 Ill. 418; Sutton v. Chicago Rys. Co., 258 Ill. 551.

Nor is there any merit in the contention of defendants that petitioner was bound by Rule 43 of the probate court of Cook county which provides that in any claims for personal injuries in case of settlement without suit, not more than 25 per cent of the amount recovered will be allowed for attorney’s fees. Nor is there any merit in the further contention that petitioner was entitled to receive only the reasonable value of the services which he rendered, and that there was no evidence on this question. Petitioner was not in the probate court and if the defendants were desirous of securing a settlement for a less amount by reducing petitioner’s fee, they should not have settled the matter behind petitioner’s back. They are in no position to invoke the rule of the probate court. Nor are the defendants in a position to contend that petitioner should receive only the reasonable value of the services rendered because the Attorney’s Lien Act provides that the attorney shall have a lien “for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered.” The amount of the fee having been agreed upon between the petitioner and his client, petitioner is entitled to the amount specified in his contract, of which the defendants were notified.

The judgment of the circuit court of Cook county is reversed but the cause will not be remanded because all of the facts are before us, and judgment will be entered herein in petitioner’s favor for $500 against Ray Pelling and B. A. Railton Co., a corporation.

Judgment reversed and judgment entered in this court.

McSurely, P. J., and Hatchett, J., concur.