text:
    Kate Fickerle, Administratrix of the Estate of Charles Bowles, Deceased, Appellee, v. Herman Seekamp, Inc., Appellant.
    Gen. No. 36,886.

      Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    McKenna, Harris & Schneider, for appellant ; James J. McKenna and Abraham W. Brussell, of counsel.
    Joseph D. Ryan and Louis P. Miller, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In an action on the case a jury found defendant guilty and assessed plaintiff’s damages at the sum of $5,000. Defendant has appealed from the judgment entered upon the verdict.

The first count of the declaration charges general negligence. The second, wilful and wanton conduct. The third, a violation of the statute of the State regulating the speed of automobiles in the business districts of municipalities. The fourth, a wilful and wanton violation of the State statute that regulates the speed of automobiles in said districts. The fifth, that defendant, by its agent and servant, negligently operated its motor truck northward in Crawford avenue at or near the intersection with 13th street without giving any reasonable warning of the approach of said motor truck, without having used every precaution to avoid injuring plaintiff’s intestate, and without stopping the said motor truck until it could safely proceed upon approaching a person walking upon or along a public highway, in violation of the provisions of the statute of the State. The first count alleges, in substance, that defendant, by its agent and servant, drove its motor truck in a northerly direction on Crawford avenue at or near its intersection with 13th street; that Crawford avenue was a much used and traveled public highway; that while the deceased was in the exercise of due care for his own safety and was proceeding easterly across Crawford avenue at or near the said intersection, defendant, by its agent and servant, carelessly and negligently drove, ran, managed and operated the truck at or near the said intersection ; that as a direct and proximate result of the negligence of defendant, by its agent and servant, the truck struck the deceased with great force and violence and knocked him to the ground, and he sustained and received physical injuries which caused his death on November 9, 1931; that he left him surviving two daughters, Helen Bowles and Kate Fickerle, who suffered pecuniary loss as a result of his death. The count alleges that suit was brought within one year from the date of death of plaintiff’s intestate, that letters of administration were issued to plaintiff by the probate court of Cook county and that plaintiff was damaged in the sum of $10,000. Bach of the other counts also contains certain of the aforesaid allegations. Defendant’s only plea at the time of trial was the general issue.

But two witnesses testified to the facts surrounding the accident, Carl Zitzer, for plaintiff, and Carl Rogers, the driver of the truck, for defendant. The following facts are not disputed: The accident occurred about 7 p. m. on November 6,1931. Rogers, just prior to the accident, was driving a light delivery truck northward in the north-bound car tracks on Crawford avenue across its intersection with 13th street. Crawford avenue runs north and south and 13th street east and west. He was alone in the truck. ' The intersection is in a closely built-up business district. 13th street is a street car stop for cars operating on Crawford avenue. Rogers knew that south-bound street cars on Crawford avenue stopped to discharge and receive passengers on the north side of 13th street and that as he crossed the intersection he was “passing through a business district in the evening when people were getting off street cars, with business buildings on both sides of the streets.” The intersection “was quite well lighted. The weather was clear that evening; the street was dry.”

Zitzer testified that he lived in the building on the northeast corner of Crawford avenue and 13th street; that at the time of the accident he stood just outside the Crawford avenue door of the building; that just prior to the accident a south-bound street car approached 13th street, made the usual stop on the north side of the street and then continued south; that as the truck approached the north side of 13th street the street car was then south of that street and that there were no obstructions on the crossing “during the time or when the street car was passing south of 13th street.” He further testified that it “seemed” to him that the deceased “came around the back of the street car”; that deceased, when he first saw him, was crossing the street and was then on the south-bound car track; that he was going from west to east, “inclining a little to the southeast, ’ ’ and was about 10 feet north of the north crosswalk of 13th street; that he (Zitzer) did not at that time see the truck nor was he aware of its approach until he heard the horn, at which time the deceased was in the north-bound track; that the truck was about 15 feet south of deceased at the instant the driver blew his horn; that the truck was then in the north-bound street car rails and was going northward “about thirty-five miles per hour”; that as the horn was blown the deceased took a quick step toward the east and then the truck swerved to the right and the fender and bumper on the left front side of the truck hit the man and “he was thrown back into the car tracks, about ten feet north”; that the rear end of the truck was three feet north of where the man was lying at the time it stopped; that the driver sounded his horn but once before the accident. The witness further testified that he had had experience in driving automobiles and that he is able to tell approximately how fast a vehicle is moving as it approaches and passes him on the street; that the deceased did not at any time run.

Rogers testified that the accident occurred about 30 feet north of 13th street and that at the time of the same he was driving about 15 miles an hour; that his brakes were in good condition and that under the existing conditions he could stop the truck in 15 to 18 feet when he was going 15 miles an hour; that “I first saw the man who was killed as I just crossed the intersection of 13th street, ... at that time he was about fifteen feet in front of my car”; that the truck was in the north-bound car tracks. “Q. From the time you first saw him, what did he do ? A. He stopped just a moment; I blew my horn and he most stopped for just a moment, and then he ran across into my truck. . . . Q. At the time he started to run, what did you do? A. I blew my horn and I took my foot off the accelerator and had it ready to apply the brakes which I did when I seen the man was going to run into me. Q. Now, when you applied your brakes, in what distance did you stop? A. In' about fifteen to eighteen feet. Q. Did you keep on going straight, or did you turn to one side? A. I swerved a little bit toward the curb.” He further testified that at the time of the accident the truck was on the east side of the north-bound car track “on an angle”; that when he first saw the man the latter was walking, “heading east — a little southeast.” Upon cross-examination the witness testified that the deceased ran into the rear part of the body of the truck. “Q. There was nothing as you approached 13th street, or as you crossed the street that would prevent your seeing what was in the street ahead of you, was there? A. No, sir. Q. You had a clear view of the crossing? A. Yes, sir. Q. And the street was quite well lighted, wasn’t it, Mr. Rogers? A, It was. . . . Q. How far south of him were you when you first saw him in the south bound track as you now state? A. About thirty feet. . . . Q. How far were you south of him when you first saw him? A. About fifteen feet.” He further testified that the truck was then about 15 feet north of the north curb of 13th street; that at that moment the man started to run directly into the body of the truck and that he was lying about four feet behind the truck when it came to a stop; that he did not swerve the truck to the right until the man ran into it; that when he saw the man start to run he slammed on his brakes and tried to stop the truck; that he saw nothing in the street but the deceased crossing; that he did not see the deceased until he saw him on the south-bound track; that “there were no automobiles passing, or street cars passing at the time at all”; that he did not “see the old man until he was over on the track.” At the end of his cross-examination Rogers stated: “I swerved it at the time to try to avoid him, yes, before he struck the truck,” but this answer appears to have been stricken out. He was then asked the following: “Did you swerve your truck to the right at any time before you struck him? A. No, sir. Q. Then it was after he ran into the rear part of your truck that you turned to the right, whatever swerving you did? A. I swerved, yes, then.” As the witness testified that he could not remember that certain questions were put to him before the coroner’s inquest, plaintiff, in rebuttal, was allowed to introduce evidence that before the coroner the witness testified as follows: “Q. What part of the street were you driving in when you first seen him? A. I was driving in the north-bound car tracks. Q. Where was the pedestrian? A. He was on the west side of Crawford Avenue, about thirty feet north of the crosswalk. Q. How far from the street car tracks ? A. Why, when I first saw him he was starting across the south-bound tracks, when I sounded the horn. Q. Were you driving in the rails ? A. I was driving in the rails by the time that I saw him, the time that I sounded my horn. Q. How is it you could not stop for this man, if you applied your brakes ? A. Well, I was practically stopped when the gentleman ran into the rear end of the truck. Q. How far did you swerve? Did you swerve to the right of him? A. I tried to go around, to get away from him. Q. Well, how far did you swerve, how close did you get to the east curb? A. Well, about one and a half or two foot. Q. From the east curb? A. From the east curb, yes.”

After a painstaking study of the entire evidence we have reached the conclusion that the jury were fully justified in believing plaintiff’s theory of fact.

In none of the contentions raised by defendant does it claim that the evidence would not warrant a finding that the driver was guilty of negligence. In fact, it states, in its brief, that it would not argue to this court “that Zitzer’s testimony would not justify the jury in finding the defendant was guilty of negligence. ’ ’

In support of a contention that “the trial court erred in denying the defendant’s motion for a directed verdict made at the close of all the evidence,” defendant argues: “A. The evidence as a matter of law shows that the defendant was not guilty of wilful and wanton misconduct toward the decedent. B. The record shows that the plaintiff cannot recover for negligence of the defendant because the record shows as a matter of law that the decedent was guilty of contributory negligence. 0. Even though we assume that the evidence supports and proves the negligence counts of the declaration, yet if the evidence does not support the wilful and wanton counts the ‘general’ verdict of guilty must be set aside.”

As to point A: Our Supreme Court has frequently stated that it is difficult, if not impossible, to lay down a rule of general application by which to determine what degree of negligence the law considers equivalent to a wilful and wanton act.

1 ‘ Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of wilful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences.” (Brown v. Illinois Terminal Co., 319 Ill. 326, 331.)

“Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury.” (Walldren Express Co. v. Krug, 291 Ill. 472, 476. See also Jeneary v. C. & I. Traction Co., 306 Ill. 392, 397.)

The driver was familiar with the intersection in question and knew that it is located in a business district and that the Crawford avenue street cars stop there to take on and let off passengers. He admits that there was nothing to obstruct his view as he approached and passed over the intersection. In fact, according to his testimony, there were no automobiles nor street cars upon the street and the only person that he appears to have seen was the deceased. Nevertheless, at the time of the accident, 7 p. m., many pedestrians might be expected to pass over such an intersection. As he approached 13th street, a southbound street car passed over the intersection and passed his truck, but he did not see it. He drove the truck across the intersection at a speed of 35 miles per hour. That he failed to keep a lookout in the direction in which he was proceeding is evident, for he testified that he was within 15 feet of the deceased before he saw him, although he admits that as he approached and passed over the intersection there was notMng to obstruct his view. Certain evidence would warrant the assumption that the deceased was entirely across the street car tracks when he was struck. Before the coroner’s inquest the driver testified that after he swerved to the right he got to within “one and a half or two feet from the east curb,” and upon the trial he testified that the deceased was lying “four feet in the rear of the truck” when they picked him up. There is force in the argument of plaintiff that in spite of the speed at which the truck was being driven, if the driver, when he finally saw the deceased, had exercised any care, he could have avoided the accident by turning slightly to the left. Instead, however, he swerved the car in the direction in which the deceased was walking and as a result ran him down. In his conduct, upon the occasion in question, he violated three statutes: One, which forbids the operation of a motor vehicle through a closely built-up business section of the city at a speed greater than 15 miles per hour; another, that required him to keep a reasonably careful lookout in the direction in which he was proceeding; and still another, that required him to give reasonable warning of his approach. It is clear that had he kept any lookout as he proceeded across the intersection he would have seen the deceased in ample time to have avoided the accident. It is undisputed that the only time he sounded his horn was when the truck was within 15 feet of the deceased. It would be idle to argue that sounding the horn at that time, in view of the speed at which the truck was being driven, was a reasonable warning of its approach. Such a warning, under the circumstances, would be more likely to frighten and confuse the deceased than to aid him, whereas, had the horn been sounded in reasonable time the deceased could have avoided the onrushing truck. As to the speed at which the truck was going at the time, Rogers testified that after he saw the deceased and applied the brakes the truck continued north for 15 feet, at which point it hit the deceased. Zitzer testified that the deceased was thrown north by the contact about 10 feet, and Rogers testified that when the truck came to a stop the deceased was lying four feet to the rear of it. The truck was 12 to 15 feet in length. It appears, therefore, even if we disregard the distance it ran toward the east, that the truck, after the brakes were applied, ran at least 44 feet. Considering the testimony of Zitzer that Rogers, as he proceeded across the intersection and approached the deceased, was driving the truck at the rate of 35 miles per hour, in the light of other facts and circumstances bearing upon the subject we are satisfied that the jury were fully justified in believing the testimony of Zitzer as to the speed. Defendant argues that the fact that the deceased was crossing the street at a point off the crosswalk relieves the defendant from the charge of wilful and wanton conduct. It is, at least, a fair inference from the evidence that the deceased had alighted from the street car, the back of which, as it stood still, would be more than 30 feet north of the curb on the north side of 13th street, and, therefore, in crossing the street to the east he would, in the exercise of due care, slant to the southeast, toward the crosswalk. Zitzer testified that when he first saw the deceased “he was about ten feet north of the north crosswalk,” still “inclining a little to the southeast.” That the care required of the driver was not lessened merely because the deceased was a few feet north of the crosswalk, see Chicago City R. Co. v. Tuohy, 196 Ill. 410, 414; Ryan v. Larson, 248 Ill. App. 651; Ludwigs v. Dumas, 72 Wash. 68; Yamase v. Seattle Taxicab & Transfer Co., 91 Wash. 415. As Rogers testified that he saw the deceased when the latter was 15 feet in front of the truck, and as Zitzer places the deceased 10 feet north of the crossing, it appears, therefore, that Rogers saw the deceased before the truck had cleared the crossing. He had wilfully and recklessly driven the truck over the intersection and the crosswalk at an excessive rate of speed, without keeping a reasonably careful lookout in the direction in which he was proceeding and without giving a reasonable warning of his approach, and to hold that his conduct must be treated as ordinary negligence merely because the deceased was slightly north of the crossing, would not be justified under the facts of this case nor the law governing it.

As to point B, that plaintiff cannot recover because the record shows that the deceased was guilty of contributory negligence: We are satisfied that the jury were justified in finding that Rogers was guilty of wilful and wanton conduct, and therefore the question as to whether or not plaintiff’s intestate was guilty of contributory negligence is of no moment. It is the established rule of law of this State that in cases of this kind the question as to whether or not a person was guilty of contributory negligence is generally one of fact for the jury, and becomes a question of law only when the evidence so clearly fails to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. After carefully considering the evidence that bears upon the question as to whether the deceased, at and just prior to the time of the accident, was in the exercise of ordinary care, we have reached the conclusion, that the jury would be justified in finding that he was not guilty of contributory negligence.

As to point C: The contention raised therein has been determined, and adversely to defendant, by the first division of this court and by this division. (See Price v. Bailey, 265 Ill. App. 358, 365; Hawkins v. McClun, 266 Ill. App. 601; Provenzano v. Illinois Cent. R. Co., 272 Ill. App. 475, 482.) We may add that both divisions have given serious consideration to the point involved. O’Neall v. Blair, 261 Ill. App. 470, cited by defendant, does sustain its contention, but see the later case decided in that district, Wargo v. Buske, 273 Ill. App. 28, 32.

In support of the further contention that “the court erred in denying defendant’s motions made at the close of all the evidence to instruct the jury to find the defendant ‘not guilty’ under counts two and four of the amended declaration,” defendant argues that there is no evidence to sustain the allegations of wilful and wanton conduct in those counts. We have already passed upon that point.

Defendant contends that the court erred in denying its motion in arrest of judgment because “counts two and four do not state a cause of action for wilful and wanton misconduct by the defendant,” and, therefore, “the presence of the good counts for negligence will not be a ground for denying the defendant’s motion in arrest of judgment. ’ ’ The contention as to the second and fourth counts is without merit. (See Provenzano v. Illinois Cent. R. Co., supra, pp. 479-A81; Williams v. Kaplan, 242 Ill. App. 166, 178-180.) But even if they were fatally defective, the presence of the good counts for negligence would be a sufficient ground for denying defendant’s motion in arrest of judgment. (See Provenzano v. Illinois Cent. R. Co., supra, p. 482; Price v. Bailey, supra, 365-8; Hawkins v. McClun, supra.)

Defendant contends that “the manifest weight of the evidence shows that the decedent was guilty of contributory negligence.” We have already passed upon a similar contention. Defendant’s argument is based largely upon the assumption that Rogers’ testimony should be believed. As we have heretofore stated, we are satisfied that the jury were fully justified in believing the theory of fact of plaintiff. In connection with the instant contention defendant argues that the court erred in permitting plaintiff to introduce in evidence several statements made by Rogers at the coroner’s request. Defendant insists that this evidence was improper for the reason that it was not contradictory of what Rogers testified to at the time of the trial. We find no merit in this contention.

Defendant next contends that the court erred in allowing plaintiff’s counsel to make an improper closing argument over the objection of defendant. Defendant’s counsel, in his argument to the jury, did not refer to the question of the amount of the verdict, and in plaintiff’s closing argument counsel briefly referred to the question of damages, to which defendant’s counsel objected upon the ground that he did not take up that subject in his argument. The trial court held that as plaintiff’s counsel, in his opening argument, referred to the question of damages that the fact that defendant’s counsel did not see fit to reply to it did not bar plaintiff’s counsel from further discussing it in his concluding argument. After an examination of the opening argument of plaintiff’s counsel we find that in the closing part of the same he referred, at some length, to the question of damages in case the jury found defendant guilty. While counsel for plaintiff argued for a verdict of $10,000, the jury allowed but $5,000. Moreover, defendant, in its brief, has not contended nor argued that the damages are excessive. There is not the slightest merit in the instant contention.

Defendant next contends that the wilful and wanton counts charge defendant with the commission of the crime of manslaughter, and, therefore, plaintiff was bound to prove the commission of the felony beyond a reasonable doubt, and that the trial court erred in refusing to give defendant’s instruction number 16, which reads as follows:

“It is charged in two of the counts of the plaintiff’s declaration that the accident in question happened as the result of wilful and wanton carelessness on the part of the defendants. You are instructed that before the plaintiff can recover under these counts of the declaration against the defendants, the plaintiff must prove his case beyond a reasonable doubt, and if you find that the plaintiff has not proved his case under these counts against the defendants beyond a reasonable doubt and the defendants were not guilty of wilful and wanton carelessness at and before the accident occurred, then you should find the defendants not guilty as to said counts of the plaintiff’s declaration.”

Without discussing the question as to whether or not the evidence would justify the jury in finding defendant guilty, under the wilful and wanton counts, beyond a reasonable doubt, it is sufficient to say that the rule invoked does not apply to the instant case. The driver is a stranger to the suit and is in no way bound by the judgment in this case. In Mclnturff v. Insurance Co. of North America, 248 Ill. 92, the principal case relied upon by defendant, plaintiff sued to recover for a loss by fire of his property covered by insurance written by defendant. Defendant filed the plea of the general issue, coupled with notice of defenses, as follows: “(1) That defendants in error willfully burned the insured property with intent to defraud plaintiff in error; . . . ” and it was held that as defendant charged that plaintiff “himself set fire to the building,” it was necessary for it to prove such defense beyond a reasonable doubt. But the Supreme Court, in Foster v. Graf, 287 Ill. 559, held that the aforesaid rule does not apply where the person accused of the crime in the pleadings and evidence is not a party to the suit but is a stranger to the record. (See also Wilson Grocery Co. v. National Surety Co., 218 Ill. App. 584, 593; Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Fekete v. Fekete, 323 Ill. 468, 477; Wag- goner v. Clark, 293 Ill. 256, 262; Sussman v. Massachusetts Bonding & Ins. Co., 230 Ill. App. 276, 280.) We may further say that defendant is in no position to raise the instant contention, for it appears that the court, at the request of defendant, gave instruction number-31, which states that “in order that the defendants may be held guilty of wilful and wanton conduct it must be shown by a preponderance of the evidence . . . .”

Defendant next contends that the court erred in giving to the jury pláintiff’s instruction number two, which reads as follows:

“The court instructs you relative to the first, third and fifth counts of plaintiff’s declaration that the rights of persons on foot and drivers of automobiles upon the public highways are equal. Both persons on foot and drivers of automobiles on the public streets are required by law to use such care as an ordinarily prudent person would use under like or similar circumstances. Persons are entitled to cross streets on foot and the law required that while doing so they use ordinary care for their own safety. Automobiles are permitted to be driven upon the streets and the law requires that the drivers thereof shall use ordinary care for the safety of pedestrians.”

Defendant contends that this instruction conflicts with section 1982 of the Chicago Municipal Code of 1931 and, therefore, it should not have been given. The said code was published June 25, 1931, but on July 30, 1931, the Uniform Traffic Code was passed, which expressly repealed all previous enactments on the subject. The same instruction was before us in Hathaway v. Shannon, 265 Ill. App. 600, where we said:

“Instruction No. 21 did not direct a verdict but told the jury that the rights of persons on foot and drivers of automobiles upon the public highways are equal, and both are required to use such care as an ordinarily prudent person would use under like or similar circumstances ; that persons are entitled to cross streets on foot and that while doing so they must use ordinary care for their own safety, and that drivers of automobiles must use ordinary care for the safety of pedestrians. In our opinion this instruction correctly stated the law (Kerchner v. Davis, 183 Ill. App. 600).”

As stated in Chicago City R. Co. v. Tuohy, supra, p. 415, and in many other cases that might be cited, pedestrians have the same right to the use of the public highways as the drivers of automobiles or other vehicles.

We have now considered the many contentions raised by defendant upon this appeal. In some of them defendant seeks to reopen settled questions of law.

This case was tried before an able and experienced judge and we are satisfied that defendant has had a fair and impartial trial. The judgment of the superior court of Cook county is affirmed.

Affirmed.

Sullivan, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    I. C. Bank and Trust Company, Defendant in Error, v. John R. Geary, Plaintiff in Error.
    Gen. No. 36,413.

      Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    Hart, Frank & Shomberg, for plaintiff in error; Victor P. Frank, of counsel.
    Chadwick, Johnson & Jayne, for defendant in error; Rudolph L. Johnson, of counsel.
   Mr. Presiding Justice

Hall delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook county entered by confession on a judgment note on January 22, 1932. The judgment is for $2,453.74, which includes $195 attorney’s fees.

On February 15, 1932, defendant filed a petition asking* that the judgment be opened up, that he be allowed to defend, and setting forth among* other things that in January, 1929, defendant borrowed from plaintiff the sum of $15,000, executed a note for that amount made payable to plaintiff four months after the date thereof, with interest at the rate of six per cent per annum from the date of the note until paid; that in making the loan plaintiff gave defendant the sum of $14,500, having deducted from the face of the note $200 as a commission for making the loan, and $300 as interest for the period of four months; that from time to time until December 30, 1931, the principal was reduced to $12,500; that during said period defendant paid plaintiff in interest and commissions the sum of $2,385.15, making a total of payments up to and including December 30, 1931, of $14,885.15, and that at the time of the last payment, plaintiff held two notes of defendant, one dated October 1, 1930, for $2,250, payable December 30, 1930, with interest at the rate of seven per cent after maturity, and one note dated November 30, 1931, for $300, payable on December 30, 1931. It is on the note dated October 1, 1930, that the judgment was taken.

Upon a hearing on defendant’s petition, defendant tendered to the plaintiff the sum of $114.85, the difference between the $15,000, the principal of the first note and the amount of payments made, $14,885.15, already paid, in full payment of the amount of the loan of $15,000.

Plaintiff thereupon moved the court to remit the sum of $865 paid by defendant as commissions, and to adjust the interest and attorney’s fees on the note, which motion was allowed, and the court entered an order reducing the judgment to the sum of $1,551.32, and denied the petition to vacate and set aside the judgment.

Defendant’s position is that under the Interest Act (section 6, ch. 74, Cahill’s Revised Statutes, ft 6, 1927) the contract between the parties is usurious, and that plaintiff is entitled to recover only the principal sum loaned which — including the tender of $114.85 made in open court — he insists, has been satisfied. There was no dispute as to the payments alleged in the petition to have been made. According to the record, the amounts paid, together with the tender, makes exactly $15,000. Section 6 of the Interest Act (Cahill’s Revised Statutes, 1931, ch. 74, 6, page 1729), in force at the time this loan was made, provides:

“If any person or corporation in this State shall contract to receive, except from a corporation and except with respect to advances of money repayable on demand, to an amount not less than five thousand (5,000) dollars, made and secured as provided in section 4 of this Act, a greater rate of interest or discount than seven (7) per cent upon any contract, verbal or written, such person or corporation shall forfeit the whole of said interest so contracted to be received, and shall be entitled only to recover the principal sum due to such person or corporation, and all contracts executed after this Act shall take effect, except contracts for advances of money repayable on demand, to an amount not less than five thousand (5,000) dollars, made and secured as provided in section 4 of this Act, and except contracts in which a corporation shall be the obligor, which shall provide for interest or compensation at a greater rate than herein specified, on account of nonpayment at maturity, shall be deemed usurious, and only the principal sum due thereon shall be recoverable.”

In Harris v. Bressler, 119 Ill. 467, suit was brought on three promissory notes, each for the sum of $241.67, with interest at 10 per cent per annum. The pleas filed to the declaration in that case alleged a defense to the entire cause of action, except as to the sum of $66.66, which last mentioned sum was tendered in open court. The defense there made was payment of the debt and usury in the original notes given for the indebtedness for which the suit was brought. On the trial, the court rendered judgment in favor of plaintiffs. On appeal of defendants to the Appellate Court, that judgment was reversed and a judgment rendered in favor of plaintiffs for the sum of $140.57, which judgment was appealed to the Supreme Court from the Appellate Court. Upon the hearing in the Supreme Court, that court adopted the statement of facts made by the Appellate Court as follows:

“That the only cause of action in this cause was a certain promissory note for the sum of $241.67, due in one year after date, payable to Joseph S. Martin, with interest at the rate of ten per cent per annum, signed by appellants, and indorsed by said Martin to the appellees, long after due. The above note was given to said Martin in only consideration of a note given by appellants to M. S. Henry & Co., for the sum of $427.18, of date July 1, 1858, due in sixty days after date, drawing ten per cent interest after due, and was in fact a renewal of said last mentioned note, which said last mentioned note, after it became due, was, for value, indorsed to one George W. Hoover, with full knowledge on his part, prior to and at the time of indorsement, that the makers, the appellants, claimed, and would insist on, the defense of usury in and to said note so given to said M. S. Henry & Co.; that the said Hoover retained the possession and ownership of said note from the time he obtained it till the giving of the first mentioned note sued on in this case, being some ten years, and was, at the time said new note was given to said Martin, the owner of the said old note and also of the note sued on herein, after it was given the said Martin, being only an accommodation holder of said note; that in taking the new note, no claim or allowance of usury was deducted from the amount of the old note, but the settlement was made as though no usury had existed; that during the time the old note of date of July 1, 1858, was in the hands of said Hoover, the appellants paid, in various payments on said note, all but $58 of the amount of the said note, after excluding the usury contained in the face of the note, and all interest called for by the note after due. It is further found that there was usury contained in the face of the said first note of July 1, 1858, as follows: The payees charge interest from the date of said note (July 1, 1858), to the time the note matured, being sixty days, at the rate of three per cent per month of the amount borrowed, or $25.63, and added it to the amount borrowed into the face of the note, and which made up a portion of the face value of the note, and that it was a greater rate of interest than ten per cent per annum on each $100, and more than the law allowed, and was in fact usurious. It is found that said Hoover, the person who purchased said note and was the indorser, had notice prior to his purchase and indorsement to him of said note, and at the time thereof had full notice of the said usurious contract in the making and obtaining the said note; that said Martin, the payee of the note sued on, is also chargeable with notice of the said usurious contract at the time the said note was executed to him; that the appellees, also, at and before the said note in suit was sold and indorsed to them, and all persons holding said note prior to the time they held the note, are chargeable with full notice of the existence of usury in the note sued on, as well as the original note, and the right of the defense of usury the appellants had to the note in suit; that the $58 of principal due on the said original note, after deducting the usury contained in the face of the said original note, and all interest after it became due, to the date of the note in suit, and adding ten per cent interest to the said $58 from the date of the said note in suit (January 22, 1872), the amount of interest called for in said last named note, to the date of the judgment rendered herein, is the amount of and comprises the amount of said judgment.” Because the facts in that case are very similar to the facts in the instant case we have recited them in full. After discussing the several interest and usury acts in force at various times in the State of Illinois, and the Act of 1874, on this question, which act is almost identical with the statute now in force, the Supreme Court further said in the same case:

“The meaning of this section of the statute would seem to be so obvious as to need no construction. It ought to be understood to mean exactly what it says,— that is, if any person or corporation in this State shall contract to receive a greater rate of interest than is lawful under the statute, such person or corporation shall forfeit the whole interest ‘so contracted to be received, and shall be entitled only to recover the principal sum.’ How the legislative intention could be expressed with more clearness it is difficult to comprehend.

“This statute has been in force since 1857 — now nearly thirty years, — and during that time this court has had frequent occasion to refer to it as applicable to cases being considered. In the early case of Stock-ham, v. Munson, 28 Ill. 51, it was said, the act of 1857 declares a forfeiture of the whole interest when a usurious rate has been contracted for, and accordingly it was held, only the principal sum was recoverable. The doctrine of that case has been followed in many cases since that time, and the same rule adhered to, invariably. So in Hamill v. Mason, 51 Ill. 488, where the contract was usurious, in referring to Stockham v. Munson, supra, it was said, it was held in that case the recovery could only be for the principal sum, without interest, as the statute has so provided. In Hefner v. Vandolah, 62 Ill. 483, it was said, as the note, upon its face, bore a greater rate of interest than ten per cent, the whole of the interest was forfeited, under the statute (act of 1857), and only the principal sum due was recoverable. In the case of Saylor v. Daniels, 37 Ill. 331, the question made as to usury arose under the act of 1857, and it was there said: ‘While it is the rule of this court that usurious interest, once paid voluntarily, cannot be recovered back, yet that rule does not apply when the transaction has not been settled, and the lender brings his action for the recovery of an alleged balance. In such case, the borrower may defend by claiming credit for whatever usurious interest he has paid in the transaction. This is not using the usury law as a sword, but strictly as a shield.’ This case has many features in common with the case being considered, and the principles stated are conclusive upon analogous questions here involved. The doctrine of this latter case was approved and re-stated in Mitchell v. Lyman, 77 Ill. 525, where it was said: ‘This court, while deciding that usurious interest, voluntarily paid carmot be recovered back, holds, still, that so long as any part of the debt remains unpaid, the debtor may insist upon a deduction of all usurious interest-paid therefrom.’” (Italics ours.) (See also Anna Loan & Investment Co. v. L. C. Dorris, 258 Ill. App. 285; McGuire v. Campbell, 58 Ill. App. 188.)

The rule here stated seems to have been followed by our Supreme and Appellate Courts. It is not disputed in the instant case that the amounts paid and tendered are all that plaintiff is entitled to have if the usury act prevails. We hold that it does and that plaintiff is not entitled to recover interest. The court was in error in refusing to set aside the judgment by confession and in refusing to allow defendant to make his defense on the merits. The judgment is, therefore, reversed and remanded for a new trial.

Reversed amd remanded.

Wilson and Hebel, JJ., concur.


author: Mr. Presiding Justice Hall

text:
    Chicago Title and Trust Company, Defendant in Error, v. La Porte Building Corporation for Use of Walter Boland, Plaintiff in Error, and The First National Bank of Chicago, Garnishee.
    Gen. No. 36,622.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Rehearing denied March 30, 1934.
    James Rosenthal, for plaintiff in error.
    Kirkland, Fleming, Green & Martin, for defendant in error Chicago Title & Trust Co.; Emil F. Meier, of counsel.
    Amberg, Ott, Dahlin & Livingston, for defendant in error First National Bank of Chicago; Frank L. Paul and Robert P. Perkaus, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

By this writ of error, plaintiff in error seeks the review of an order of the municipal court of Chicago, releasing and discharging a garnishee.

On July 9,1931, Walter Boland obtained a judgment in the municipal court of Chicago against the La Porte Building Corporation for $17,350. Execution issued thereon and was returned “no property found.” Thereafter garnishment summons issued and was served on the First National Bank of Chicago. On August 6, 1931, the bank filed an answer, in which it stated that it was indebted to the La Porte Building Corporation in an amount in excess of the sum claimed in the garnishment proceeding. On August 6, 1931, judgment was entered against the garnishee for $17,367.60, upon which judgment execution issued. After a motion had been made by the garnishee on August 7, 1931, to vacate the judgment, the Chicago Title & Trust Company, by leave of the court, filed an intervening petition in the cause, in which it asserted its right to the funds in the hands of the garnishee. A motion was made by Walter Boland, the judgment creditor, to strike the petition of the Chicago Title & Trust Company, and on October 7, 1931, the court entered an order denying this motion to strike, and after a hearing on the petition, the court found the issues for petitioner, the Chicago Title & Trust Company, and entered a further order that the garnishee be released and discharged. From this order, the plaintiff, Boland, prayed an appeal, which appeal was never perfected, and this writ of error was sued out of this court on February 5, 1933, more than a year after the entry of the order discharging the garnishee. On March 28, 1933, the garnishee entered a motion in this court to dismiss the writ of error on thé following grounds: (1) that the only method of review in garnishment cases provided by statute is through appeal. Review through writ of error is not authorized by law; (2) funds held by the garnishee were released in reliance upon the decision of the municipal court of Chicago, no appeal from that decision being perfected. No supersedeas issued. The motion was reserved to the hearing.

The Garnishment Act, Cahill’s Illinois Revised Statutes, 1931, ch. 62, Ti 28, provides that “an appeal may be taken from the judgment or any final order of the court or justice of the peace by any party to such proceeding in like manner as appeals are taken in other cases.”

In Capes v. Burgess, 135 Ill. 61, the Supreme Court said:

“The remedy by garnishment is statutory, and the question of its application to any given case or class of cases is therefore purely a matter of statutory regulation. ’ ’

See also Hall v. Thode, 75 Ill, 173, where the court said:

“This court has repeatedly held, that the writ of error is a writ of right, but it has never held the legislature was powerless to limit its issuance. The general principle is undoubtedly correct, that a final judgment of an inferior court of record is subject to review by this court on a writ of error, except in cases where the legislature has otherwise provided.
“The question then is, has the legislature otherwise provided in cases like this, to procure a review of the judgment of the county court.
“These proceedings are purely statutory, having no vigor outside of the statute, and it is an unvarying principle that the requirements of the statute must govern and control them. By section 123 of ch. 46, Title ‘Elections,’ R. S. 1874, it is provided, ‘in all cases of contested elections in the circuit courts or county courts, appeals may be taken to the Supreme Court in the same manner and upon like conditions as is provided by law for taking appeals in cases in chancery from the circuit courts.’
“Here is a specific remedy provided in a specific case, not one arising in the usual course of litigation, but exceptional. It is a familiar principle in such cases, where the organic or statute law has given a specific remedy, that remedy must be. pursued. In contested elections before a county court, the remedy, and the only one, to correct a supposed error in the judgment, is by appeal, and this remedy can alone be invoked. Had not this remedy by appeal been specially provided, there could be no doubt a writ of error would lie. In our opinion, this special provision has taken away, by a reasonable implication, the remedy by error. There is nothing shown in this case preventing the aggrieved party from taking an appeal.
“There is no want of authority on this question. Savage v. Gulliver, 4 Mass. 171; Jarvis v. Blanchard, 6 ib. 4, where in both cases it was held that the remedy of a party aggrieved by a judgment from which an appeal was given, must be pursued by appeal, unless when, without laches on his part, he had no opportunity of taking an appeal.”

In Hunley v. Panther Creek Mines, Inc., 223 Ill. App. 558, the court said:

“It is well settled law, that the right of garnishment is statutory, and must be pursued within the limits of the statutory requirements. La Salle Opera House Co. v. La Salle Amusement Co., 289 Ill. 196; Farnum v. North Chicago Safety Deposit Vault Co., 97 Ill. App. 441; Rogers v. Pierce, 214 Ill. App. 180; Dearborn Laundry Co. v. Chicago & A. R. Co., 55 Ill. App. 438; Boyne v. Vandalia R. Co., 128 Ill. App. 194.”

As noted, a further ground urged for the dismissal of this writ of error is that the garnishee in good faith had paid out the money held by it after the order of the municipal court was entered, discharging such garnishee, that an appeal was taken from such order, which was not perfected, and that this writ of error issued more than a year after the entry of such order.

In Cleveland v. Eichengreen, 205 Ill. App. 300 (Abst.), the following facts are shown: In the attachment suit brought by Lepman & Heggie against the Interstate Produce Company, Eichengreen was summoned as garnishee. He made a statement showing the amount in his hands due the Inter-State Produce Company, which was turned over, except the sum of $897.88, which the garnishee retained to cover the claim of Lepman & Heggie in the attachment suit. An order was entered quashing the attachment and discharging the garnishee. A certified copy of this order was served upon the garnishee and a demand made upon him for the balance of the fund, which he refused to turn over, whereupon suit was commenced against him, and plaintiff obtained judgment for $911.60, which is the original amount owing to plaintiff in the case referred to. From this judgment, defendant appealed to this court, and in its opinion this court said:

“After the defendant refused to turn over this money, the plaintiff in No. 22215 sued out a writ of error in that case and filed the same with the clerk of the municipal court and presented a stay bond, and an order approving the same and staying the proceedings in the municipal court was then entered. Several weeks thereafter, on application to this court, in No. 22215, the writ of error was made a supersedeas. The affidavit filed by Eichengreen in this case does not show that he was ever made a party to the writ of error or that he ever received formal notice of the supersedeas, or that the supersedeas was filed with the clerk of the municipal court.

“It is contended by the defendant that as this suit against Eichengreen was begun after the writ of error was sued out in the other case, and that such writ was made a supersedeas, the writ may be pleaded in abatement. In certain early decisions of our Supreme Court will be found statements seeming to support this as a general proposition. We hold, however, that they are not applicable to the present situation for the following-reasons: (1) We think it is not without importance that at the time demand was made upon the garnishee for the money belonging to the plaintiff the garnishee had been discharged, of which he had formal notice. There was no ground, legally or otherwise, at this time why he should refuse to turn over the money to the party entitled to it. We know of no rule which would permit a garnishee to retain funds in his hands, in the expectation that the defeated party in the original case may sue out a writ of error. Bigelow v. Andress, 31 Ill. 322; Shinn on Attachment, ed. 1896, secs. 395 and 355. (2) Even if this were not true, the present action against the defendant was commenced before the writ of error was made a supersedeas; this suit was commenced January 26, 1916, and the writ of error in the attachment suit was not made a supersedeas until March 13, 1916. We know of no rule which would permit him to retain the fund during the pendency of a writ of error where no supersedeas has been allowed; such a rule would seem unreasonable as permitting a garnishee to retain funds not belonging to him, without any security to the rightful owner pending the disposition of litigation to which he is not a party.

“We are disposed to be in accord with the rule as stated by Judge Marshall in Runyon v. Bennett, 4 Dana, 598, where he says: ‘A supersedeas suspends the efficacy of a judgment, but does not, like reversal, annul the judgment itself. . . . The judgment of one tribunal cannot he deprived of its force, or in any manner affected, by the order of another, until there be some evidence of the order among the records of the tribunal in which the judgment itself remains, or some notice of it given to the officers concerned in executing the judgment, or at least to the parties to be benefited by it. ’ The rule is applicable to the present situation. The defendant, Eichengreen, is not a party to the proceedings in this court in the writ of error case, and the supersedeas writ was never filed with the clerk of the municipal court, or any notice of its issuance served upon Eichengreen. ’ ’

The effect of the above holding is that after the garnishee had been discharged, it was his duty to pay the money in his hands to the person entitled thereto.

We hold in the instant case that the only remedy provided by law for the review of an order setting aside a judgment against and discharging a garnishee, is by appeal, as provided by statute, and that the writ of error will not lie. Moreover, in view of the fact that the appeal was not perfected after the discharge of the garnishee, we hold that the garnishee was not only justified in paying the money in it's hands to the person found to be entitled thereto, but that it was its duty to do so. The writ of error is dismissed.

Dismissed.

Wilson and Hebel, JJ., concur.


author: Mr. Justice Hebel

text:
    Transcontinental Insurance Company, Appellant, v. David Rosenbloom, Appellee.
    Gen. No. 36,685.

      Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Arthur W. Klein, for appellant.
    Aaron Soble, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendant entered in the circuit court of Cook county in an action in assumpsit filed by the plaintiff as subrogee and assignee of Mrs. Morris Eitholz against David Bosenbloom for breach of a contract of bailment. The case was tried by the court, without a jury.

No issue is made as to the sufficiency of the pleadings in this cause. An amended declaration was filed, which alleges in part that on May 1, 1931, the defendant was engaged in the jewelry business; that Mrs. Morris Eitholz was the owner of certain jewelry of the value of $6,415, which was delivered to the defendant to be cleaned and returned to her; that on May 2, 1931, the defendant failed and neglected to return any of the jewelry to Mrs. Morris Eitholz, whereby she sustained a loss of $6,415; that the plaintiff, for a consideration, had issued to Mrs. Morris Eitholz a policy of insurance, which was in effect on the date mentioned, and by the terms of which the plaintiff insured Mrs. Morris Bitholz against loss; that by reason of the loss, plaintiff became liable under the terms of the policy of insurance, and on July 31, 1931, paid to Mrs. Morris Bitholz the sum of $6,415, the amount of the loss caused by the negligence and failure of the defendant; that Mrs. Morris Bitholz, upon payment of this sum to her by the plaintiff, executed a subrogation receipt and assignment of claim to the plaintiff of all her rights and demands against the defendant arising out of said loss, and thereby the plaintiff was subrogated to the right's, claims and demands of said Mrs. Morris Bitholz against the defendant.

The second count is substantially the same, except that there is no allegation of consideration to be paid to defendant for the cleaning of the jewelry. To the amended declaration is attached an affidavit of merits.

The issue in this case is made up of the declaration and the defendant’s plea of the general issue, with notice of special defenses, which is to the effect that the relation of the defendant to Mrs. Morris Bitholz was that of a gratuitous bailee, and that without any fault of the defendant, larceny was committed upon the person of the defendant, whereby the jewelry was lost, and that the market value of the jewelry was far less than the amount claimed by the plaintiff.

There is evidence in the record that on May 1, 1931, Mrs. Morris Ritholz delivered to the defendant,' a jeweler located at 3431 West Boosevelt Boad, Chicago, Illinois, a diamond platinum bracelet, a solitaire diamond ring, and a dinner ring, for the purpose of having them cleaned. It also appears that the defendant is an uncle of Mrs. Bitholz’ husband, and that he had previously sold the bracelet to her for $4,865.

On May 2, 1931, the defendant delivered the jewelry to Jewel Craft, Inc., located at 55 East Washington street, Chicago, to be cleaned and polished. The Jewel Craft, Inc., returned the jewelry in an envelope to the defendant, and he obtained a second envelope containing a diamond ring which had been repaired for the defendant. Both of the envelopes were placed by the defendant in an inside pocket of his suit coat, at which time the defendant wore a topcoat. The defendant then proceeded to Feinstein & Company, located at Madison and Wabash avenue, where he received three watches. These he placed in the side pocket of his inside coat. From that place the defendant proceeded to Siegel & Co., located in the same building* and obtained an unset diamond on memorandum, which was contained in a diamond paper, and the defendant placed the diamond package in the pocket with the Bitholz jewels, making three packages in his inside coat pocket.

From Madison and Wabash avenue, the defendant walked north on Wabash avenue to Lake street, and from Lake street to La Salle street and Wacker Drive, where he stopped at B. Cooper, Jr., Inc., to inquire about a refrigerator for his home. From there, in order to return to the defendant’s jewelry store, he rode as a passenger on an elevated train, which he boarded at Wells and Bandolph streets, rode on this train to Kedzie avenue, and from Kedzie avenue became a passenger on a street car and rode south to Boosevelt Boad, transferred and boarded a street car on Boosevelt Boad and rode two blocks to where his place of business was located.

The defendant arrived at his store about 2 o’clock p. m., and proceeded to remove the packages of jewelry from his pockets. All of the packages of jewelry were found in his pockets, with the exception of the Bitholz jewels. The defendant then retraced his steps and inquired at the several places where the packages of jewelry were delivered to the defendant after being cleaned and polished, if a package had been found, but without avail.

The plaintiff contends that the court erred in that the finding of fact and the judgment entered for the defendant were repugnant to finding of fact No. 2 and the proposition of law No. 4, held by the court to be the law. The finding of fact is as follows:

“2. The Court finds as a fact from the evidence that Mrs. Morris Eitholz bailed or entrusted to the defendant certain jewels to be cleaned by the defendant and by him returned to said Mrs. Morris Eitholz and that said jewels by the failure of the defendant to take reasonable care of the same were not redelivered, but were lost to said Mrs. Morris Eitholz and not paid for by said defendant.”

The proposition of law which the court held as applicable to this case is in these words:

“4. The Court holds as a proposition of law a gratuitous bailee is bound to take reasonable care of property entrusted to him to protect it from loss or damage. As bailee the defendant is bound to exercise such care and diligence in the preservation of the property entrusted to him as every prudent man takes of his own goods of like character and value.”

It is apparent from the finding of fact by the court in this case that Mrs. Morris Eitholz bailed certain jewels to be cleaned by the defendant, and by him to be returned to her, and that the jewels, by failure of the defendant to take reasonable care of the same, were not returned but were lost to Mrs. Eitholz, and not paid for by the defendant, and applying the law held to be such by the court, the defendant was a gratuitous bailee and bound to take reasonable care of property intrusted to him, so as to protect it from loss or damage, and to exercise such care in the preservation of the property intrusted to the defendant as every prudent man would take in the care of his own property of like character and value.

The defendant has not expressed any views on the finding of fact and the proposition of law adopted by the court such as would justify the entry by the court of a judgment for the defendant.

The defense of loss by larceny, as alleged in the defendant’s affidavit of merits, is not supported by any evidence.

The explanation by the defendant of the loss of the jewelry is that the several packages of jewelry were removed from the pockets of his coat, except the one containing the jewelry that disappeared, and the evidence supports the finding of fact that the defendant failed to use reasonable care to protect the jewelry, but notwithstanding such finding of fact by the court, the court entered judgment for the defendant, which was clearly antagonistic to the law adopted and the finding of fact. The finding relates to an ultimate fact which was a material issue in the case, and the court found, from the evidence, that by reason of the failure of the defendant to exercise reasonable care, the jewelry in question was lost to Mrs. Morris Ritholz. This was an important fact to be determined by the court, and under the finding of the court, judgment should have been rendered for the plaintiff.

The question of a gratuitous bailee is not of importance in view of the court’s proposition of law, which we have set forth in this opinion and which is supported by the case of Miles v. International Hotel Co., 289 Ill. 320.

It is also urged by the defendant that the amended declaration does not comply with sec. 18 of the Practice Act (Cahill’s Ill. Rev. St. 1931, ch. 110, H18). The amended declaration is for recovery by the plaintiff of money paid to Mrs. Morris Ritholz for loss sustained by her and paid to her by the plaintiff under the terms of an insurance policy, and this action is for the collection of the money from the defendant. This right of action by Mrs. Ritholz was assigned to the plaintiff, and by such act the plaintiff was subrogated to whatever right Mrs. Ritholz had to recover for the loss of the jewelry. The amended declaration is not obnoxious to the provision of section 18.

It is not necessary for the losing party to move for a new trial in a case tried by the court, nor is it necessary for the plaintiff at the close of the evidence to move that the court find the issues for the plaintiff. Keith v. Arnold & Co., 254 Ill. App. 115; Miller v. Anderson, 269 Ill. 608; Trout v. City of Herrin, 245 Ill. App. 346.

The case will have to be retried and this court does not express an opinion on the facts other than is necessary to dispose of the case on appeal.

For the reasons indicated the judgment is reversed and the cause remanded for a new trial.

Judgment reversed amd cause remanded.

Hall, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Adelaide Kennedy, Guardian of William J. Kennedy, Appellee, v. Electrical Workers Benefit Association, Appellant.
    Gen. No. 36,755.

      Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the June term, 1933.
    Rehearing denied March 30, 1934.
    Hopkins, Starr & Godman, for appellant; Marcus Whiting, of counsel.
    George C. Bliss, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from a judgment of the superior court in favor of the plaintiff for $1,000, based on a policy of insurance issued by The Electrical Workers’ Benefit Association. The judgment was entered after the court had sustained general demurrers to certain affidavits of defense filed by the defendant and had struck the amended affidavit of defense from the record.

The action was based on a contract of insurance entered into in 1922, between the defendant and one G. A. Kennedy, father of William J. Kennedy, a minor, on whose behalf this action was brought by Adelaide Kennedy, his guardian.

The defendant is a fraternal benefit association incorporated under the laws of the District of Columbia. Its by-laws restrict the persons who may become beneficiaries to a limited class, among which is the wife of the insured. At the time the original policy was issued Adelaide Kennedy, who is bringing this action in behalf of her minor son, was the wife of G-. A. Kennedy, the insured, and was named as such in the policy. Subsequently, she and her husband Kennedy were divorced. After the divorce proceedings Kennedy requested the defendant to cancel the benefit certificate naming Adelaide beneficiary and to issue in lieu thereof a certificate in favor of Phyllis Kennedy, his wife. He claimed to have married after his divorce. G-. A. Kennedy died in August, 1931. Phyllis Kennedy, the alleged wife, submitted proof of death and the defendant paid her the $1,000, which was the face amount of the policy. Defendant claims that at the time of the payment of this policy it had no knowledge that anyone questioned the validity of the marriage of Kennedy to his alleged second wife Phyllis.

Plaintiff asserts that Phyllis Kennedy was not in fact the legal, lawful wife of Gr. A. Kennedy, and that the defendant should again pay the amount of the policy to the next of kin of the insured who is William J. Kennedy, his minor son, according to the by-laws of the defendant which requires that a policy of insurance taken out by a member of the defendant should be made payable to a member of his immediate family.

By-law 7, under which plaintiff seeks to recover, provides:

“. . . That said beneficiaries shall be confined to the families, heirs, blood relatives, affianced husband or affianced wife of the member or to persons dependent upon the member. Every member shall have the privilege of changing his beneficiary within the limitations'expressed in this By-Law VII. Upon the failure of any member to name an original beneficiary or to name a new beneficiary after the death or inability to take of one previously named, the said death benefit shall be payable to the person or persons who are entitled to take the personal property of the deceased member in accordance with the laws of .the domicile of such deceased member governing the distribution of personal property in case of intestacy. . . .”

Defendant relies upon the same by-law, namely, bylaw 7, which provides that in the event the deceased shall have named someone in a policy who in fact was not included within the limited class, nevertheless, in the event the defendant should pay the amount of said policy to such designated person before it discovers the falsity of the statement, the association shall not again be required to pay said benefit to any other person. That part of the by-law in question reads as follows:

“Section 1. . . . The relationship to the member of the beneficiary named by him shall be stated by him and set out in the benefit certificate. If any member shall name a beneficiary who does not bear to him the true relationship stated by him and appearing in his benefit certificate and who does not fall within the classes of persons permitted by this By-Law VII to be named as beneficiary, the Association, upon discovery and actual communication to the Supreme Lodge of the falsity of said statement of relationship before it has paid said benefit, shall pay the benefit to the person or persons who are entitled to take the personal property of the deceased member in accordance with the laws of the domicile of such member governing the distribution of personal property in case of intestacy ; and if said falsity of statement of relationship is not discovered and actually communicated to and received by the Supreme Lodge until after the payment by the Association to the beneficiary so named, the Association shall not be under any obligation again to pay said benefit to any other person. ’ ’

Plaintiff’s declaration consisted of one count. To this defendant filed seven amended pleas and an amended affidavit of defense. The first plea was the general issue. The second plea alleges payment under the policy to Phyllis Kennedy, the widow and beneficiary designated by him. The third plea sets forth the cancellation of the original benefit certificate in favor of Adelaide Kennedy; the issuance of the new certificate in favor of Phyllis Kennedy, upon the representation by the insured that she was his wife, and the payment to Phyllis. This plea further sets forth that portion of the by-laws providing that such payment to her should end the liability of the defendant together with an allegation that no one other than G-. A. Kennedy had any vested interest in the contract. The fourth plea is similar to the third but charges that where payment is made to an ineligible beneficiary, on reliance of the representations of the insured, it is a proper payment. The fifth plea charges that the plaintiff did not make proper proof of death. The sixth plea is similar to the third and fourth. Demurrers were filed to the second, third, fourth, fifth, sixth and seventh pleas, but no demurrer was filed to the first. In the amended affidavit of defense it was charged that the defendant was protected by the by-laws in paying the benefits of the policy of insurance to Phyllis Kennedy. This is the question for our determination.

We are of the opinion that the question was sufficiently presented to the trial court in the pleas and the affidavits of merits to raise this defense.

Plaintiff relies largely upon the case of Royal League v. Shields, 159 Ill. App. 54. A reading of that case, however, shows that the money had not been paid out by the insurance company, but The Eoyal League, a fraternal benevolent association, filed its bill of interpleader and brought the money into court for final disposition. If the defendant in this case had had notice of the claim prior to the payment, as provided by the by-laws, and had brought the money into court, we would have been confronted with an entirely different situation. In such a case the defendant would have been apprised of the alleged falsity of the statement of relationship and would have been warned of its liability in the event it proceeded thereafter to pay the claim as is charged it had done.

The case of Duenser v. Supreme Council Royal Arcanum, 262 Ill. 475, was a case where the. Benevolent Association did pay the claim, supposing it was paying it to one who was the lawful widow of the assured. The court in its opinion said: “. . . there is nothing in the record to show that any evidence of such dependency (naming the wife) was given or required, either at the time of the issuance of the benefit certificate or at the time of its payment, which under the rules of the society would be necessary in the case of issuing or paying benefit certificates to those who were dependent.” It does not appear from that case that there was a by-law similar to the one in the case at bar under which the policy was issued to the deceased Kennedy. At the time of making this contract, by which the policy was issued, none of the beneficiaries or next of kin had any vested interest in the policy.

At the time Kennedy took out the policy with The Electrical Workers’ Benefit Association, the defendant here, it was agreed that if the association paid out any money on the policy to a person named as beneficiary without knowledge of the fact that such beneficiary was not included in the class entitled to benefit it should, nevertheless, be protected. This, of course, was in accordance with the understanding that such money was paid by the defendant in reliance on the insured and his statements that the beneficiary came within the limited class. The defendant had no means of knowing of the relationship except by the proof of loss furnished which, in this case, was apparently done within the allotted time by Phyllis Kennedy, the person named in the policy and who it is claimed was not, in fact, the wife of Kennedy. By its contract with the insured it was guaranteed under the by-laws against loss in the event it paid the claim without knowledge of any facts which would vitiate the policy. This bylaw was adopted by all the members of the defendant for the mutual protection of their association.

We see no reason why this agreement would be void or in contravention of public policy. It is a protection against the fraud of its own members, and while the statutes, Cahill’s Illinois Revised Statutes, ch. 73, IT 488, provides that the beneficiary shall be a member of the family, etc., nevertheless, the benefit association had the right to protect itself by contract against loss by payment to those named as beneficiaries in the policy.

This court in the case of Barnett v. Brotherhood of Railroad Trainmen, 243 Ill. App. 219, held that where a policy such as in the case at bar was issued with a beneficiary named therein as wife, who was not so in fact, that such policy was void, as the person designated therein did not come within the class provided by the by-laws of the association. If this rule were followed in the case at bar it might be that the existing policy, there being no proper beneficiary named therein, would be void. No one could raise the question of the payment by the insurance company to Phyllis Kennedy, or any other person, under the then existing conditions. The case before us, however, is stronger in that this payment is further directed by the provisions of the by-laws already referred to, namely, that in the absence of notice to the contrary, the defendant had the right to rely upon the statements made in procuring the policy and make payment thereon in complete satisfaction of any claim against it by reason of the death of the insured. This precise question has not been before the courts of this State, as we can find, but we are of the opinion that the contract as entered into was governed by the by-laws in force and which were a part of the agreement.

We are, therefore, of the opinion that the court erred in sustaining the demurrer to the pleas and striking the amended affidavit and entering judgment for the plaintiff.

For the reasons stated in this opinion the judgment of the superior court is reversed and the cause remanded for a new trial with directions to proceed with the views expressed in this opinion.

Judgment reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


text:
    Henry Levine, Appellee, v. Emma Levine, Appellant.
    Gen. No. 36,783.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the June- term, 1933.

      Jambs F. Farley and Jesse Marcus, for appellant.
    Cohen & Berke, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from a decree of divorce entered in the superior court in favor of the complainant, Henry Levine, against the defendant Emma Levine.

The bill charges that the complainant is an actual resident of Cook county and was for over a year prior to the filing of the bill a resident of the State of Illinois ; that the parties were married October 14, 1919, and lived together until September 1, 1923, when the defendant wilfully and without reasonable cause deserted the complainant and has continued in such desertion. The defendant appeared and answered the bill and denied that the complainant was a resident of the State of Illinois; denied that she had deserted the complainant, but charged that the complainant has never conducted himself as a husband should, and in fact had deserted her, the defendant.

The amended answer further alleges that the question in issue in these proceedings was finally settled between the parties and fully adjudicated on October 26,1927, by the probate court of Suffolk county, Massachusetts, at which time the court entered a decree for support and maintenance in favor of Emma Levine and found that the complainant herein, Henry Levine, was guilty of desertion.

The complainant testified that he lived at 616 Bush street, Chicago, Illinois, for a little over two years ; that he was in the theatrical business; that in 1923 he had an apartment with two other men in the City of New York; that his wife visited him there in 1923, but returned to Boston; that in 1924, he attended her sister’s wedding in Boston and that at that time his relations with the defendant were friendly; that he was served with papers in the separate maintenance proceedings brought by Emma Levine but at that time he had no established home; that he was supposed to appear at the district attorney’s office in New York City in other proceedings brought to compel him to support the defendant and child; that he appeared in the probate court in Boston at the hearing of the separate maintenance proceedings brought by his wife and was represented by counsel and was ordered and directed to pay her $30 a week; that in 1931 he was in Chicago and that he owned a car, which he had registered from his address at 110 West 48th street, New York City; that he kept an account in a bank in New York City and the preceding summer sent a check to the defendant on that bank; that he had had an account in Chicago, opened the preceding August, and that he made a federal income tax return in 1931 and gave his address as New York City.

The bill of complaint in this cause was filed on December 19, 1931. Testimony of the complainant as to his residence is not convincing.

The defendant Emma Levine testified that she lived in Boston, Massachusetts, with her husband until 1921; that in May of that year she had a child by her husband who is still living; that he wrote to her from New York, continually stating that when he had an apartment he would send for her; that in 1922 she went to New York and found he was not living at the address he had given her; that she found where he lived and ’phoned him and he then came and took her to an apartment consisting of two rooms and a kitchenette where he was living with two other men; that after two weeks the complainant told her to go back to Boston and he would look around for an apartment; that he bought her a ticket and took her to the station; that she never refused to live with him and that in 1925 he told her he was not going to live with her any longer and advised her to get a lawyer; that they had a meeting at her lawyer’s office and complainant agreed to pay her $50 a week for the support of herself and the child; that she complained to the district attorney in New York and he brought in her husband who then promised to send her some money.

Defendant introduced in evidence a certified copy of the decree of the probate court of the county of Suffolk, Massachusetts, dated October 26, 1927, which was entered in an action for separate maintenance brought by the defendant Emma Levine v. Henry Levine, also known as Henry Dunn. The court found that it had jurisdiction of the parties and that due notice of the proceedings had been given the defendant and that petitioner therein, Emma Levine, for justifiable cause was living apart from her husband, “having been deserted by him.” It was further provided in said decree that the defendant should pay the sum of $30 per week until the further order of the court.

As we have already stated the defendant was served personally and appeared in court by his counsel. In 1929, the defendant in that proceeding appeared and asked to have the decree modified as he was unable to pay the amount awarded the petitioner in that proceeding.

The record in .this proceeding and the testimony on behalf of the defendant, Emma Levine, shows an almost continuous effort on her part to compel the complainant to support herself and child. From the record it would appear that the claim of the complainant, that the defendant had deserted him without cause, is without merit. In our opinion, however, the decree of the probate court in the commonwealth of Massachusetts is controlling. Full faith and credit should be given by the courts of Illinois to judgments and decrees of sister States. This is especially true where there has been personal service and an entry of appearance at the proceeding as was the fact in the case at bar. The probate court of Massachusetts had jurisdiction of the parties and the subject matter and it found in its decree for separate maintenance that the defendant, Henry Levine, did desert the petitioner in that proceeding, Emma Levine. This was a finding of fact. It is not necessary for the court to find the evidentiary facts in its decree, but it should find the ultimate fact as was done by the probate court of Massachusetts. No appeal was taken from that decree in order to test its validity and it cannot be attacked collaterally in the proceeding pending here. Merriam v. Merriam, 207 Ill. App. 474.

The parties to the proceeding in Massachusetts were the same as the parties here and the issue there tried was that of desertion which is the same issue as that presented to the court of this State and the act of desertion was found against the defendant there, Henry Levine, who is now complainant here. That decree was binding upon the superior court of this county and was conclusive on the question of desertion. Janssen v. Janssen, 269 Ill. App. 233.

Cases cited by complainant do not vary the rule. The cases requiring the decree to state the facts specifically where no evidence is prescribed were, in some instances, appeals to a reviewing court from decrees entered in this State. The case of Hoffman v. Hoffman, 330 Ill. 413, relied upon, shows that the decree was simply one dismissing the bill of complaint and contained no facts'whatsoever.

The decree of the Massachusetts case, set up as a bar to this proceeding, found the ultimate fact necessary to support the decree in that case and stated it therein. The chancellor of the superior court was precluded from entering the decree in favor of the complainant in this cause and for the reasons stated in this opinion, the decree is reversed and the cause is remanded to the superior court with directions to dismiss the bill.

Judgment reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.