author: Mr. Justice Dove

text:
    Hawley Products Company, Appellant, v. George S. May, Trading as George S. May Company and George S. May, Inc., Appellees.
    Gen. No. 9,755.

      Heard in this court at the February term, 1942.
    Opinion filed May 14, 1942.
    Sears, O’Brien & Streit, of Aurora, for appellant; Barnabas F. Sears and Edward F. Streit, both of Aurora, of counsel.
    McFarland, Morgan & Stearns, of Chicago, and Charles G. Seidel, of Elgin, for appellees; G. A. Buresh, of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Kane county purging appellees of contempt and discharging the rule to show cause, under. a prior order to produce, for inspection and to be copied or photographed by appellant, a certain written lease existing between appellees. The cause was transferred by the Supreme Court to this court because no constitutional question is involved, Hawley Products Co. v. May, 377. Ill. 506.

We consider first a motion by appellees to dismiss the appeal on the ground that the judgment is not a final, appealable order. In People v. Diedrich, 141 Ill. 665, the judgment of the circuit court adjudging the defendant guilty of contempt had been reversed by the Appellate Court and the cause remanded with directions to discharge the rule. In Hill v. Thomas B. Jeffery Co., 292 Ill. 490, .the same kind of a judgment was reversed by the Appellate Court without a remanding order. The Supreme Court entertained an appeal from the Appellate Court in each case. Appellees here urge that the judgment of the trial court in each case was final, and that a judgment of the Appellate Court reversing a final judgment without remanding the cause is also a final judgment, and that for these reasons the Supreme Court took jurisdiction. The hypothesis is not applicable to the Diedrich case, where there was a remanding order. "We observe no reason why a judgment of the Appellate Court remanding the cause with directions to discharge the rule is any more a final, appealable order than a judgment of the trial court discharging the rule in the first instance. In Hill v. Thomas B. Jeffery Co., supra, the court points out that a proceeding to show cause is an ancillary proceeding, brought to enforce an interlocutory order, and while its purpose is connected with and has its foundation in the main case, it is a separate case prosecuted independently to enforce compliance with the order of the court. It was held that “a judgment either that he was guilty or that he was not is a final judgment.” Appellees’ contention that the quoted words apply only to the judgment of the Appellate Court is refuted by the antecedent expressions of the opinion, which demonstrate the court was referring to the judgment of the trial court. Lester v. Berkowits, 125 Ill. 307, where it was held that the preliminary order to produce is interlocutory and not appealable is not in point. From a subsequent contempt order in the same case the court entertained an appeal. (Lester v. People, 150 Ill. 408.) Nothing said in any of those cases lends any support to the claim of appellees that it is only the imposition of an imprisonment or the assessment of a fine, and not the finding of guilty or not guilty, that gives the right of review. The motion to dismiss the appeal is denied.

The record discloses that appellant, a manufacturing corporation, sued George S. May, doing business as George S. May Company, and George S. May, Inc., a corporation, in an action to recover damages for an alleged breach of contract. The complaint alleges the defendants held themselves out to the public and to appellant as industrial engineers and efficiency experts; that relying thereon, appellant, on or about May 15, 1937, employed both defendants to furnish services in its business to effectuate savings and increase profits; and that the work was negligently, carelessly and unskillfully performed and brought about large losses.

The defendant corporation answered, denying holding itself out as alleged in the complaint, and denying it ever had any business dealings with or rendered any services to appellant. The answer of the individual defendant alleges the contract was made and the services were performed by him only, doing business as George S. May Company. It denies any breach of the contract or injury to appellant, and alleges an account stated and an accord and satisfaction. Subsequently both defendants filed amended answers under oath denying joint liability. For convenience George S. May, Inc., and George S. May, doing business as George S. May Company, will be called respectively the corporation and the Company.

By agreement of the parties George S. May was examined by appellant before a notary public as commissioner. He testified he operates the George S. May Company; that the business is international with a home office in the Chicago building owned by the corporation, and twenty other offices, including a downtown office in Chicago, leased from other parties that from February 1, 1925 to November 14, 1929, he operated the business as an individual; that on the latter date George S. May, Inc., was incorporated; that he is president and holds 99 per cent of the stock, the other stockholders being his wife and some forty-five of his employees; that upon its organization the corporation acquired the property and equipment and operated the business until February 1, 1934, when it went out of business and has ever since leased the property and equipment for a rental sum to the Company; that the corporation does nothing except collect the rent; that the business of the Company is solicited, contracted and performed in the name of the Company and by his men, and not by the corporation; that checks for the work are turned in to the Company ; that accounts receivable are not and never have been assigned to the corporation; that appellant’s job was solicited by one of his employees, the work was done by other employees and the money received was deposited in the name of the Company, and none of it went to the corporation; that the latter has no record of the job, but the Company has such a record in its job-file and bookkeeping records; that the corporation and the Company have a written agreement with reference to the relations existing between them, in the nature of a lease, the first one being dated February 1, 1934, a new one having been drawn later with minor changes; he refused to answer questions as to how much rent the corporation collects in the course of a year; the average annual earnings of the Company; whether the payment received by the corporation is a percentage or a definite, stated amount; the consideration for the transfer; whether there was any consideration except stock in the corporation; whether any percentage of the money from appellant’s job ultimately came to the corporation; and whether the lease provides for paying a percentage of the profits for the leasing.

The report of this testimony was filed in court, whereupon appellant filed .motions to require George S. May to answer the questions he refused to answer, and for the production of the lease for inspection and to be copied or photographed by appellant. The motions were supported by affidavit of appellant’s counsel that the lease was relevant to the issues, inasmuch as it was claimed by the defendants to set forth the business relationship between them. Appellees filed verified answers setting out the issues made by the pleadings as to the contract between appellant and the Company, the payments thereunder to the Company, and alleging the production of the lease would not show how much or to whom the money was paid; that it was not shown the lease was in any way material, pertinent or relevant; and that an order to produce it would violate their constitutional rights. A copy of the contract and of a settlement during performance were attached as exhibits to the answer of George S. May.

Appellant then filed an affidavit, and two amended affidavits by one of its counsel, alleging, on information and belief, that the production of the lease and further questioning of George S. May, if permitted, would establish that the corporation has an interest in the profits and operation of the Company; that, except for a bonus or commission to the Company, the corporation receives all the profits of the Company ; that the corporation owns all the property, equipment and furnishings used in the business of the Company and does all the financing for the operation of the business; that the officers and directors of the corporation are the same persons as the supervising executives of the Company; that the source of his information is a confidential report of a named reporting agency, containing information furnished by the Company, the corporation and its officers, and an investigation by the affiant, disclosing that all accounts of the Company are assigned to the corporation, which receives a percentage commission on all new orders of the Company; that George S. May, when previously examined testified that the lease sets forth the relation between the parties; that its production and the further examination of 'May will produce evidence tending to establish either that the Company is an agent of the corporation and that both the corporation and the Company are in fact operating the business, or that the method of operation is merely a subterfuge to place all assets of the Company beyond the reach of creditors, and that there is in fact no separate corporate entity.

The court entered an order in compliance with the motions. George S. May again testified before the commissioner. He refused to produce the lease, or to testify as to whether the rent was a percentage of the profits, and whether all the profits except a commission to him goes to the corporation. He testified the corporation never discounts notes and never has, but refused to answer whether it had been a party to a deal where its endorsement was required on discounted notes, and whether any such notes bore the endorsement of both the Company and the corporation ; and whether when such notes are discounted the money goes to the credit of the corporation; whether the witness receives a commission on new business done by him as the Company; whether the rent is $3,300 per month, plus all the profits of the Company after deducting 4 per cent of the total billings; whether the good will of the corporation redounded to his benefit; whether he notified customers the method of operations had been changed; whether the rent increases or decreases with corresponding increase or decrease of the Company’s business; Avhether the corporation has a direct financial interest in the volume of the Company’s business; whether, when new orders come in, the corporation immediately receives any kind of bonus or commission; whether the corporation has qualified to do business in other States; whether it was so qualified when engaged in business, and whether the lease provides for the rental of the building where the home office is located.

He testified the only interest the corporation has in the Company is to collect rent; that the accounts receivable are not and never have been assigned to the corporation; that it has no interest in the accounts, and money received from customers comes into the corporation’s hands only as it is paid in rent; that when the corporation was organized he paid in about $93,000 in assets of the business, and about $7,000 in cash to make up the remainder of the stock; that the consideration therefor was the issue of the stock; that when and after he commenced operating the business in 1934 the employees were his, and not those of the corporation; that the only assets of the business he owns are those daily consumed, such as gasoline used in the cars of the corporation; that the offices previously used by the corporation are used by the Company; that all branch offices aré leased by and in the name of the Company. At the close of his testimony appellees’ counsel stated the witness was prepared to correct his testimony as to his stock-holdings.

After the return into court of the last report of the commissioner, appellant filed a petition to require appellees to show cause why they should not be punished for contempt because of the failure to produce the lease. Appellees filed a joint and several answer denying any contumacy or disrespect for the court, and alleging they are advised by their counsel that the lease and its contents are not material to the issues, and that the order for its production is in violation of their constitutional rights. It.calls attention to the issues made by the pleadings, and that they do not embrace any question of principal and agent, employer and employee or master and servant; that the complaint alleges a contract with both defendants, and that therefore no issue arises as to the relationship between the defendants themselves. It sets out the testimony of George S. May, and the questions he refused to answer, and that the ground of refusal was that the information attempted to be elicited is not material to the issues, and was an attempt to pry into the private affairs of the defendants, contrary to their constitutional rights; that it is not shown by any pleading or document or any fact set forth therein that the lease is material, pertinent or relevant to the issues; and that it is not so material, pertinent or relevant. It alleges that the only interest of the corporation in the lease is the same as that of any other landlord; that the only time it would receive an amount equal to the profits of the Company would be when the profits would not exceed the amount provided in the lease to be paid as rent; that the corporation owns only such property and equipment used by the Company as is described in the lease; that the corporation does none of the financing of the Company, and the lease does not provide that it shall do so; that the officers of the corporation are not all the same persons as the supervisory executives of the Company; and the lease does not provide they shall be the same; that the lease was never shown to the reporting Company mentioned, or to any of its officers, agents or representatives; that the supposed facts alleged in the petition were not furnished to the reporting agency or any of its officers, agents, or representatives, by the defendants or either of them, or by anyone authorized by them; that none of the accounts receivable are or ever have been assigned to the corporation ; that the corporation does not and never has received a percentage commission or any commission upon new orders of the Company, and the lease does not provide for any such percentage; that at the time of the examination of George S. May he did not own 99 per cent of the stock in the corporation, but of the three classes outstanding, his wife owned 950 of 1000 shares preferred, the other 50 shares being owned by employees and others; that of the Class A common stock, George S. May owned 78 shares, his wife 64 shares, and employees and others 385 shares; that of the Class B common stock, George S. May owned 4000 shares, and his wife 2000 shares. It recites the effort to correct the testimony in this respect, and alleges the lease does not show the stock holdings; that the lease provides for the payment of rent, with the usual provisions for care, repairs, insurance and water rates; that it does not provide any relationship as principal and agent, employer and employee or master and servant, and the complaint of appellant makes no allegation that it so provides; that the allegation that the method of doing business is a subterfuge for the purpose of placing the assets of the Company beyond the reach of creditors indicates the purpose, not to prove the issues, but as a fishing expedition with a view of finding evidence to be used in other suits, in violation of the constitutional rights of the defendants; that the allegation that there is in fact no separate corporate entity is in effect an allegation that the averment of corporate existence in the complaint is false; that both defendants are not and never have been operating the business, but the Company alone operates it; that the production of the lease would not tend to show that both defendants are operating it, and the lease does not so provide, or that both defendants are guilty of the alleged wrongful acts, or that both or either is liable, and there is no provision in the lease for joint liability; that the contract was made with the Company alone, all checks in payment thereon were made to the Company and are in possession of appellant, so showing. The answer is positively verified by the affidavits of George S. May and by the treasurer of the corporation. As was pointed out in Garden v. Ensminger, 329 Ill. 612, it is to be noticed that the affidavits of appellant’s counsel in support of the petition are on information and belief only.

The parties agree that in a criminal contempt a defendant may be discharged upon his sworn answer, and that this is a civil and not a criminal contempt. Appellant claims that the trial court discharged the rule upon the answer, and that this was error, because, in order to purge themselves of contempt, it was necessary for appellees to produce evidence at the hearing and afford appellant the right of cross-examination; .and that in a civil contempt they were not entitled to be discharged upon their sworn answer. Several decisions of the Supreme Court in chancery cases, such as O’Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216 Ill. 354; Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196; Loven v. People, 158 Ill. 159; and People v. Buconich, 277 Ill. 290, where it was held the rule in criminal cases did not apply, are relied upon. Hake v. People, 230 Ill. 174; Dinsmoor v. Bressler, 164 Ill. 211; People v. Seymour, 272 Ill. 295; Buck v. Buck, 60 Ill. 105; Crook v. People, 16 Ill. 534, which in turn cites Underwood’s case, 2 Humph. R. 48, the case of Yates, 4 John. R. 372, and Lord Mansfield’s opinion in The King v. Vaughn, 2 Douglass E. 516, are authority for the doctrine that there is a distinction between the practice in contempt proceedings in a court of chancery and proceedings to punish contempt in a court of law; and that in cases of common-law jurisdiction for contempt the defendant is tried upon his answer and no other evidence is heard. If he purges himself of contempt by his sworn answer he is entitled to have the rule discharged. Appellant also cites Denison Cotton Mill Co. v. Schermerhorn, 257 Ill. 128, which was a civil contempt in an action of trover. In that case the affidavits in support of the motion to produce were positive, and not on information and belief. They showed goods had been stolen and purchased from the thief by the defendants, who had the only record of the purchases. No counter affidavit was filed, and the order was entered. A motion to vacate was supported by an affidavit setting out only legal reasons why the order should be vacated. The answer to the rule in the contempt proceeding stated the contentions in regard to the validity of the order. It does not appear that it denied any of the facts alleged in the declaration or in the affidavits in

support of the motion to produce, or that it was verified. In People v. White, 334 Ill. 465, another civil contempt in an election fraud case, the court held the defendants could not purge themselves by their sworn answers because of the provision of the special governing statute that the cause shall “be tried in open court on oral testimony in a summary way.” Clearly neither of those cases is applicable here. No holding in a civil contempt proceeding, ancillary to an action at law, contrary to the cases above cited has been brought to our attention. While section 31 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.031] provides there shall be no distinction between actions at law and suits in chancery respecting the manner of pleading, the legislature did not intend to abolish the substantive distinctions between the two forms of procedure. (Frank v. Salomon, 376 Ill. 439.)

However, even if the rule employed in chancery cases is to be applied in actions at law, we are not persuaded that appellant is entitled to invoke it here. While the judgment of the trial court seems to be based largely upon the sworn answer of appellees, the record shows the court carefully examined and considered the testimony taken at the two hearings before the commissioner. We do not think it was incumbent upon appellees to produce evidence in support of their sworn answer unless and until its truth was assailed. The true doctrine is that upon a sworn answer being filed, its allegations may be contradicted by testimony adduced by the petitioner. (People v. Buconich, supra; Rothschild & Co. v. Steger & Sons Piano Mfg. Co., supra; Crook v. People, supra.) No case is cited which holds that the defendant must first proceed to establish the truth of his sworn answer by testimony. In the case at bar, appellant made no attempt to produce any testimony on the hearing, but was content to rely upon its affidavits on information and belief and the testimony taken before the commissioner at its instance. No testimony was offered to substantiate the allegations as to the alleged information from the reporting agency, or as to the alleged investigation by appellant’s counsel. Without any proof as to the alleged information from the reporting agency, the allegation was as to hearsay only and without any probative force. In the absence of any testimony as to the alleged investigation by appellant’s counsel, showing what facts he learned as the basis of his charges on information and belief, the court was without any foundation of fact upon which to find the belief had any support. Appellant had the opportunity to prove, if it could, the allegations of its petition and affidavits, but being based only upon information and belief, without proof of any facts, we know of no rule of law which required appellees to first establish by testimony the truth of their sworn answer.

The information sought under the questions which May refused to answer would not tend to show that both of the defendants entered into the contract with appellant or to establish agency. Appellant was apparently of that opinion, for it did not seek his punishment for contempt in refusing to answer, but the contempt proceeding is based only on the refusal to produce the lease. There is no testimony which tends to show the lease contains any provision as to the relations between the defendants other than as brought out in the examination of May, and none of his testimony tends to establish appellant’s contentions.

The law in cases of this class is well settled. It is uniformly held that before an order can be properly entered for the production of books or writings there must be good and sufficient cause shown and that the evidence sought to be obtained is pertinent to the issues in the case. If .an order is entered compelling a party to produce papers which are not relevant to the issues he may refuse to obey it, and in a prosecution for contempt he may show in defense that the court had no authority to make the order. (Red Star Laboratories Co. v. Pabst, 359 Ill. 451; Carden v. Ensminger, supra.)

Appellant insists that the complaint here sounds in tort for the breach of an implied duty to exercise skill and care, citing Nevin v. Pullman Palace Car Co., 106 Ill. 222, and that under the holding in Skala v. Lehon, 343 Ill. 602, it was entitled to show agency notwithstanding the complaint alleges a contract with both defendants. The answer to this is that the petition to produce the lease charges agency only on information and belief, without any proof to sustain it, while the sworn answer of appellees and the testimony of George S. May, tend to refute that contention. For an injury arising from mere negligence, there must exist between the party injured and the party inflicting it, some privity, by contract or otherwise, by reason of which the latter owes the former some legal duty. (National Iron & Steel Co. v. Hunt, 312 Ill. 245; Aetna Ins. Co. v. Illinois Cent. R. Co., 365 Ill. 303.)

We think the fact that the testimony of May was taken prior to the hearing on the rule to show cause is of no importance. It was taken at the instance of appellant, filed in court by it and considered on the hearing by the court. Appellant introduced no further testimony. There is no proof in the record which shows the production of the lease would tend to establish an agency between appellees, privity between appellant and the corporation, or that both defendants entered into the contract.

The allegation that the method of operation is merely a subterfuge to place the assets of the Company beyond the reach of creditors, and that there is in fact no separate corporate entity is not within the issues. While the forms of pleading have been abolished by statute, it is still the law that a party is limited, in his evidence, to the claim he has made. He cannot make one claim in his complaint and recover upon proofs of another without amendment. The issue is made by the complaint and the evidence must be limited by it, and the issues cannot be enlarged by oral claims or affidavits filed in the case. (Walter Cabinet Co. v. Russell, 250 Ill. 416; Oetting v. Graham, 373 Ill. 247; In re Estate of Shanks, 282 Ill. App. 1.) While the law does not require the materiality of the evidence shall appear from an inspection of the pleadings alone (Denison Cotton Mill Co. v. Schermerhorn, supra.) appellant has made no showing that the production of the lease is material or relevant to the issues. The assignment that the court erred in refusing to reconstruct the issues so that the corporation would be debarred from asserting the defense of lack of agency is not argued. It follows, however, from what we have said above, that there was no error in the ruling. The judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Josephine Bartolucci, Appellee, v. Peter Falleti, Appellant.
    Gen. No. 9,757.

      Heard in this court at the February term, 1942. Judgment reversed.
    Opinion filed May 14, 1942.
    Duncan & O’Conor, of Ottawa, for appellant.
    Hollerich & Hurley, of La Salle, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Peter Falleti has appealed from a judgment of the circuit court of La Salle county for $12,500 against him in an action by Josephine Bartolucei for damages on account of personal injuries sustained by her in an automobile accident while riding as a guest in his car. The accident occurred at about 10:30 P.M. on the night of January 30,1937, on a winding gravel road south of Peru. The left rear wheel of the car came off while descending a hill. The car left the road, went over an embankment 15 or 20 feet into the bed of Cedar Creek, and turned over.

The guest statute of this State (Ill. Rev. Stat. 1941, ch. 95%, par. 58a [Jones Ill. Stats. Ann. 85.064 (1)]) as then in effect, provides:

“No person riding in a motor vehicle as a guest, without payment for such ride, . . . shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, ... or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, ... or loss for which the action is brought.”

The only question presented here is whether at the time of the accident appellant was guilty of wilful and wanton conduct under the guest statute. The complaint contains five wilful and wanton counts. Two negligence counts were stricken. The first count charges the road was approximately 15 feet wide, higher in the center than at either side, with a sharp down grade, covered with ice and slippery for 250 feet northeast of the bridge over Cedar Creek, where it curves abruptly to the right over the bridge; that the night was dark and rainy and the car lights penetrated only a few feet; that appellant, with knowledge of the conditions and with a conscious indifference thereto, and with wilful disregard of the consequences, wilfully, wantonly and recklessly drove his car along the highway at that point at a rate of speed greater than was reasonable and proper having regard to the traffic and use of the way and so as to endanger the life and limb of the passengers in the car.

The second count charges wilfully and wantonly driving down grade and around a curve at a high and dangerous rate of speed, in violation of section 48 of “An Act in relation to the regulation of traffic” (Ill. Rev. Stat. 1941, ch. 95%, par. 145 [Jones Ill. Stats. Ann. 85.177]) without slackening the speed.

The first additional count charges appellant’s car was driven in such unsafe and defective condition as to endanger any person riding therein, in violation of paragraph (a) of section 102 of the same act; that appellant had knowledge, or by the exercise of reasonable care might have had knowledge, of such condition, and wilfully and wantonly drove Ms car when approaching and going around the curve without decreasing speed, in violation of section 49 and paragraph (a) of section 102. The second additional count is substantially the same.

The third additional count charges that the nuts attached to the bolts in the left rear hub or brake drum for holding the wheel to the hub were permitted to become loose, and that thereby the wheel, while in motion, caused the bolts to become worn and eventually sheared the bolts off the hub; that appellant had knowledge, or by the exercise of ordinary care would have had knowledge of the defective and dangerous condition. The charge of wilful and wanton driving at a high and dangerous speed is repeated.

At the close of the testimony for appellee the court overruled appellant’s motion for a directed verdict. At the close of all the testimony a ruling on a like motion was reserved until after verdict, when it was overruled, as was appellant’s respective motions for judgment notwithstanding the verdict and for a new trial.

There is no conflict in the testimony as to the determinative facts. Appellee resides in Dalzell. Abopt 8:30 on the night of the accident she and her friend Lena Mariani went to- Morandi’s tavern in Dalzell about two blocks from her home. There they danced with appellant and his friend Orlando Falassi. They each had one small glass of beer. It was the night of the President’s birthday ball and the boys invited the girls to go with them to Cedar Point. They got into appellant’s 1931 Chevrolet car. Lena Mariani sat with appellant, who drove. Appellee and Orlando Falassi sat on the rear seat. She was on the left side back of appellant. She testified they were all perfectly sober. Just prior to the accident Lena Mariani and appellant were singing. They drove from Dalzell through Peru, where appellant drove down a steep hill in second gear, stopped before crossing some railroad tracks, and then drove south on the gravel road where the accident happened, about one mile south of Peru. The road at that point goes down grade for a distance of about 400 feet and then turns abruptly to the right across Cedar Creek bridge. As the car came down the grade the left rear wheel came off. Appellant attempted to keep it in the road, but was unable to do so. It drew over to the south side of the road and left the embankment about 50 to 75 feet from the bridge. It turned over and dropped 15 or 20 feet into the creek bed, where it landed pointed in the same direction it was going prior to leaving the embankment. It had rained about 7 o ’clock that evening, but had not rained for some time before the accident. Where the gravel was smooth there would be a small patch of ice, but there was no ice where the gravel was rough. Appellant testified there was some ice extending back from the bridge 50 feet. None of the witnesses testified to seeing any ice on the road before the wheel came off. The road is from 15 to 20 feet wide, narrowing at the bridge. A witness estimated the grade of the hill at 30 per cent. He also estimated the grade of a neighboring hill at 60 per cent, and that of the hill in Peru at 70 per cent. A photograph in evidence indicates the grade of the hill where the accident happened is not nearly so steep as his estimate. Appellant travelled the road frequently and was familiar with it.

Appellee testified the car did not lessen speed before it went over the embankment. Appellant testified he did decrease the speed “some”; that he “let up on the gas.” He testified he was going about 25 miles an hour, not to exceed 30. Appellee testified she did not know exactly how fast appellant was driving, but that she “judged” it was from 30 to 35 miles an hour.

All of the six bolts in the left rear wheel, except one, were sheared off at the hub. A State policeman testified he found two of the bolts on the hill about 100 feet back from the bridge; that they “looked to me like they were loose and wore off, and they broke.” The bolts were not introduced in evidence, and there is no testimony that they were actually worn to a dangerous condition.

About six weeks prior to the accident appellant had a puncture in the left rear tire. He took the wheel off and changed the tire in front of a house where he was visiting in Granville. He did not afterward have the wheel off at any time. There is no testimony that tends to show he did not put it back correctly, or that the bolts were worn at that time, or that appellant ever had any knowledge of any defective condition of the left rear wheel at any time before the accident.

The evidence shows that on the day of the accident a garage mechanic at La Salle took up the connecting rods in the motor, and did other mechanical work on the car, taking up the bearings. He testified he worked five or six hours on the car, delivered it to appellant at his home in Oglesby about 8 o’clock that evening, using the brakes from time to time, and appellant took him back to Peru; that the car did not shimmy or wobble and he heard no noise of any kind in any of its wheels.

Section 49 of the act above mentioned prohibits the driving of an automobile at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person. While it provides that the fact that the speed is lower than the prima facie limits therein mentioned shall not relieve the driver from reducing speed when approaching a hill crest, it is manifest that this provision relates only to such speed as is unreasonable and improper under the circumstances above mentioned. There is no evidence which tends to show that appellant was driving at a speed greater than was reasonable and proper under the terms of section 49, or that he was driving in a wilful and wanton manner. It is apparent that neither the speed of the car, the condition of the road, nor the manner in which the car was driven had anything to do with the accident. The evidence conclusively shows the accident was caused by the left rear wheel coming off when the bolts sheared.

The law applicable in such cases is found in 5 Am. Jur., “Automobiles,” sec. 235, where it is said:

“The cases are not entirely in accord regarding the liability of the owner or operator of a motor vehicle for injuries to guests by the defective condition and equipment of the automobile. It is held that a guest who comes upon the premises or enters a vehicle of another must take such premises or vehicle as he finds them and as it pleases the owner, in the exercise of his right of dominion over his own property, to maintain the same, provided, of course, such owner does not fail in the duty of informing or warning the guest of that which might be considered a trap or concealed defect, or does not, by any act of his, create a new danger. Gross negligence, within the meaning of the guest statutes, cannot be predicated upon defects in the car. It has been said that one who invites another to ride with him in his automobile does not guarantee to the guest a sound automobile; his duty extends only to refraining from increasing the danger which the guest assumes upon entering the automobile, or from adding a new danger. Reasonable care for the safety of a guest commences only when he enters the automobile; the operator owes him no duty of prior inspection, the guest taking the automobile and driver as he finds them. ... A line of authority, apparently at variance in spirit with the cases above discussed, exists. According to this view, an invitation carries with it the assurance of some measure of security which the driver must make good by the exercise of active care; he owes the duty of exercising reasonable care in the operation, and control of the car, in view of some known defective condition.”

The last mentioned doctrine has no application here, where it is not shown that appellant was not exercising reasonable care in operating the car, or that he knew of any defective condition or by the exercise of reasonable care he would have known thereof. Numerous cases upholding the text are to be found in the annotations in 20 A. L. R. 1014; 26 id. 1425; 40 id. 1338; 47 id. 327; 51 id. 581; 61 id. 1252; 65 id. 952; and 96 id. 1482. Among them are Pigeon v. Lane, 80 Conn. 237, 67 Atl. 886; O’Shea v. Lavoy, 175 Wis. 456, 185 N. W. 526, 20 A. L. R. 1008; Gifford v. Dice, 269 Mich. 293, 257 N. W. 830, 96 A. L. R. 1477; Marple v. Haddad, 103 W. Va. 508, 138 S. E. 113; Joyce v. Brockett, 205 App. Div. 770, 200 N. Y. S. 394, affirmed without opinion, 237 N. Y. 561, 143 N. E. 743; Landry v. Hubert, 100 Vt. 268, 137 Atl. 97; Cleary v. Eckhart, 191 Wis. 114, 210 N. W. 267.

The rule in this State is that to constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge, of the surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits indifference to consequences, makes a case of constructive or legal wilfulness. (Streeter v. Humrichouse, 357 Ill. 234; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392.) In order that one may be held guilty of wilful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. (Lamarre v. Cleveland C. C. & St. L. Ry. Co., 217 Ill. App. 296; 5 Am. Jur., “Automobiles,” sec. 241.)

Paragraph (a) of section 102 of the act mentioned makes it unlawful to drive on any highway an automobile which is in such unsafe condition as to endanger any person or property. Section 137 provides a penalty by fine, applicable to a violation of section 102. It is obvious there could be no conviction of a defendant charged with such a violation unless he had knowledge, or by the exercise of reasonable care would have had knowledge of such unsafe condition. It is equally plain that unless the driver of a car knew of its unsafe condition or by the exercise of reasonable care would have known of it, the driving of the car in such condition does not meet the definition of wilful and wanton misconduct. No such a showing is made here, and neither of the sections invoked by appellee is applicable. The occurrence was merely a deplorable accident, in no way attributable to any wilful or wanton misconduct of appellant, without which, by the express terms of the guest statute, there can be no recovery. Under this statute, the evidence, and the cases above cited, the trial court erred in refusing to direct a verdict for appellant. As there could be no recovery on another trial, there is no occasion to remand the cause. The judgment is reversed.

Judgment reversed.


text:
    In re Estate of Frank Marco, Deceased. Rose M. Kelly, Appellant, v. Rose McClary, Appellee.
    Gen. No. 9,762.
    Heard in this court at the February term, 1942. Order affirmed.
    Opinion filed May 14, 1942.
    Carr, Carr & Carr, of Ottawa, for appellant.
    John H. Armstrong, of Ottawa, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

The question in this case is whether appellant, as nominee of the only resident brother- of Frank Marco, deceased, is entitled to administer the estate in preference to appellee, the only resident sister of the decedent.

The facts are not in dispute. Frank Marco died intestate on April 24, 1941. He left surviving him as his only heirs-at-law, August Marco, his brother, and appellee, Bose McClary, his sister, both residing in this State; a sister, a nephew and two nieces, who are nonresidents; and two nieces living in Illinois. No question is involved as to any right of the nonresidents or the resident nieces to administer. On April 28,1941, a relinquishment by August Marco of his right to administer and his nomination of appellant, with her petition for letters -of administration, was filed in the probate court of La Salle county. The probate court set the hearing for May 22,1941, and directed the clerk to mail a copy of the petition to appellee. Appellee filed her petition for letters on May 6,1941. The hearing was set for the same day as the hearing on the other petition, and the court required 10 days’ notice by mail to all the heirs-at-law. On the hearing of both petitions the court denied the petition of appellant and appointed appellee administratrix of the estate. An appeal to the circuit court terminated with a like result, and appellant has further appealed to this court from the order of the circuit court.

Prior to the enactment of the Probate Act of 1939 (Ill. Rev. Stat. 1941, ch. 3, par. 151, et seq. [Jones Ill. Stats. Ann. 110.247 et seq.]) the pertinent provisions of section 18 of the Administration Act (Ill. Rev. Stat. 1939, ch. 3, par. 18), repealed by the Probate Act, provided :

‘ ‘ Administration of the estate of all persons dying intestate shall be granted to some one or more of the persons hereinafter mentioned and they are respectively entitled to preference thereto in the following order: . . . 5th. To the brothers or any competent person nominated by them. 6th. To the sisters or any competent person nominated by them. . . . 8th. To the next of kin or any competent person nominated by them. 9th. To the public administrator or to any creditor who shall apply for the same.

Provided, that only such persons as are entitled to administer under this act shall have the right to nominate. When several are claiming and are equally entitled to administration, the court may grant letters to one or more of them, preferring relatives of the whole to those of half blood. Preference and the right to nominate under this act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator. ’ ’

Comparable provisions of the 1939 Probate Act are sections 96, 97 and 101 [Jones Ill. Stats. Ann. 110.345, 110.346 and 110.350] thereof. The applicable provisions of section 96 (par. 248) are:

“The following persons are entitled to preference in the following order in obtaining the issuance of letters of administration of the various kinds; ... (4) The brothers and sisters or any person nominated by them. ... (6) The next of kin or any competent person nominated by them. (7) The public administrator. (8) A creditor of the estate. . . . Only persons qualified to administer under this Act shall have the right to nominate.”

Section 97 provides:

“When several persons are claiming and are equally entitled to administer or to nominate an administrator, the court may grant letters to one or more of them or to the nominee of one or more of them, preferring those of the whole blood or their nominee to those of the half blood or their nominee.”

Section 101 provides :

“Upon the hearing on the petition for letters of administration the court shall issue the letters to the petitioner or his nominee unless letters are sought by a person entitled either to administration or to nominate a person to administer in preference to the petitioner. ’ ’

While the prior act was in force the Supreme Court had occasion to interpret its preference provisions in Justice v. Wilkins, 251 Ill. 13. In that case the next of kin of a decedent comprised sixteen resident nephews and nieces, other nonresident nephews and nieces, and grandnephews and grandnieces residing in this and other States. One of the resident nieces waived her right to administer and nominated her son, whom the county court appointed as administrator. Subsequent petitions by a number of the other nephews and nieces to set aside the order and for the appointment of another person were denied. The appointment was sustained on appeals to the circuit court and the Appellate Court. In reversing those judgments, the Supreme Court held that any one of the resident nephews or nieces, otherwise qualified, was entitled to be appointed administrator, and that the court might have granted letters to any one or more of them, but that the statute was mandatory, and a stranger to the class, nominated by one of such nephews or nieces, could not be appointed unless the others who were equally entitled to administer waived their rights; that when any one heir of a class waives the right and nominates another, the one so nominated is not to stand in the place of the other, with equal rights to administer as against the others of the class, unless the person nominating is the only heir of that class; and that if all of those who appear of the class entitled to administer waive that right and another person is appointed at his, her or their request, if one of the others of the class who are equally entitled to administer appears “within sixty days from the death of the intestate” and insists upon his right to administer in person, it would be the duty of the court to appoint him if he was competent, providing, however, for proper protection of the estate and compensation for the person theretofore appointed.

Appellant insists that the provisions above mentioned of the Probate Act, and particularly section 101, render the decision in that case ineffective, and points out several instances in which legislative changes in statutes have superseded decisions of the courts under prior acts. The claim that the provisions of section 2 that words importing the masculine gender include the feminine, and words importing the singular number include the plural and vice versa, which were not in the prior Administration Act, change its effect and supersede the holding in Justice v. Wilhins, supra, is without merit. Like provisions, applicable to all statutes, have been in the chapter on statutes (ch. 131, sec. 1, pars. 3, 4) ever since the act of 1874, and were in effect when the opinion in Justice v. Wilhins was rendered.

If, as contended by appellant, it was the intention of the legislature by sections 96, 97 and 101, to put a nominee on a parity with the person or persons nominating him, that fact, if it be a fact, does not in any way indicate that a domination by one of a class deprives the other member or members of that class of his or their right to administer or to nominate. We do not agree with the claim that the provisions of section 101 require the appointment of the first petitioner or nominee who files, to the exclusion of all other member's of the same class, unless some person appears with a better right. There are several reasons why such an interpretation cannot be adopted. As suggested by appellee, it would result in a race from the death bed to the clerk’s office, and the first applicant from the eligible class would be entitled to be appointed, regardless of the number of persons in that class. It would thus nullify the provisions of section 96 providing for administration or nomination by class, and the provisions of section 97, which gives the court discretion in appointing the administrator when several who are equally entitled are claiming. The legislature manifestly intended no such an absurd result. Particular sections of any statute must be construed with the other provisions of the same statute, and under this familiar rule, section 101 must be construed as not requiring the appointment of the first petitioner when there is a contest by other members of the same eligible class. To hold otherwise would, do violence to the other provisions of the act and the established rules of statutory construction. This doctrine was followed in Dupee v. Follett, 304 Ill. 166, where a public administrator claimed the last sentence above quoted from section 18 of the Administration Act was mandatory. The court construed it with other provisions of the act and held the heirs-at-law or their nominee was entitled to be appointed administrator, although their petition was not filed within the prescribed 60 days.

It is apparent that even if the provisions of sections 96, 97 and 101 of the Probate Act change the rule announced in Justice v. Wilkins, supra, that a nominee who is a stranger to the class (as is the case here), does not stand in the place of the one nominating him, such a change is wholly immaterial in this case. The rule stated in Justice v. Wilkins, supra, that nominations must be by class is not abrogated by any of the mentioned sections of the Probate Act. Its provisions in that respect, applicable here, are substantially the same as those of the prior act and as stated in Justice v. Wilkins, supra. The Probate Act, like the prior Administration Act, still requires nominations by all the members of the eligible class. Section 97, like section 18 of the prior act, vests the court with authority to make the appointment when two equally entitled are claiming. That authority was correctly exercised in this case.

The claim that the probate court erred in requiring notice of the filing of appellant’s petition, and that if notice had not been given, appellant would have been appointed, doing away with all question of the rights of appellee, is so obviously without foundation as a ground for reversal as to require no comment. The order of the circuit court is affirmed.

Order affirmed.


author: Presiding Justice Scanlan.

text:
    Downey Coal Company, Appellant, v. Live Stock National Bank of Chicago, Trustee, et al., Appellees.
    Gen. No. 41,488.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed May 14, 1942.
    William C. Burns and John J. Enright, Jr., for appellant; Winston, Strawn & Shaw, Mayer Meyer, Austrian & Platt and Butz, Von Ammon & Marx, for appellees; James H. Cartwright, Albert W. Potts, Raymond J. Friend and Rodney C. Glover, of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Crown Automotive Sales and Manufacturing Company, Appellee, v. Lee M. Goldstein, Trading as Lee M. Goldstein and Company, Appellant.
    Gen. No. 41,660.
    Heard .in second division, first district, this court at April term, 1941;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    Henry S. Blum, for appellant; Cohen & Goldstein, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Addie Mourant, Appellant, v. The Pullman Trust and Savings Bank and Pullman Trust and Savings Bank, Appellees.
    Gen. No. 41,784.
    Heard in second division', first district, this court at June term, 1941;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    Hugh Moore Matehett, for appellant; Wellington G. Brown, for appellees.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in fuU.’’


text:
    Eugene Mourant, Appellee and Cross Appellant, v. Pullman Trust and Savings Bank, Appellant and Cross Appellee.
    Gen. No. 41,845.

      Heard in second division, first district, this court at October term 1941;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    Wellington G. Brown, for appellant; Hugh Moore Matchett, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in

full.’’


author: Justice Friend.

text:
    Anna Pietrolonardo, Appellee, v. Jay R. Houghteling et al., Appellants.
    Gen. No. 41,871.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    John A. Bloomington and Samuel Levin, for appellants; Harry B. Begley, of counsel; Byan, Sinnott & Miller, Louis G. Davidson and Sam Fink, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Edwin Hamilton, Appellee, v. Thomas J. Grady and Wiley W. Mills, Trustee, Appellants.
    Gen. No. 41,891.

      Heard in second division, first district, this court at October term, 1941;
    opinion filed May 14, 1942.
    Robert McCormick Adams and Max Murdock, for appellants; Einar C. Howard, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Robert L. Hassenauer, Minor, by Leo J. Hassenauer, His Father and Next Friend, Appellee, v. F. W. Woolworth Company, Appellant.
    Gen. No. 41,906.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    Ednyfed H. Williams and Edward Thomas O’Brien, for appellant; George E. White, for appellee.
   Opinion by

Justice Friend.

“Not to be pubUshed in full.’’


text:
    National Bank of Detroit, Appellant, v. David Sachs, Appellee.
    Gen. No. 42,023.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    Beckman, Healy, Reid & Hough, for appellant; Daniel M. Healy, of counsel; William Jaffe, for appellee; Harry Jaffe, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’


author: Justice Sullivan.

text:
    Frederick B. Thomas, Appellee, v. F. Thomas Morris et al., Defendants. Appeal of Frank D. Quin, Appellant.
    Gen. No. 40,999.
    Heard in second division, first district, this court at October term, 1939;
    opinion filed May 14, 1942;
    rehearing denied June 5, 1942.
    Cooke, Sullivan & Ricks and Daily, Dines, White & Fiedler, for appellant; George J. O’Grady and John F. Sullivan, of' counsel; Dunbar & Eieh, for appellee; David 0. Dunbar, Stanley Eieh and M. J. Atkinson, of counsel; Castle, Williams & McCarthy, for Northern Trust Co. et al., Trustees, Emmett J. McCarthy and George E. Lyon, of counsel.
   Opinion by

Justice Sullivan.

“Not

to be published in full.”


text:
    Shore Management Corporation, Appellee, v. Arthur Erickson and Anthony Erickson, Trading as C. A. Erickson Bros., Appellants.
    Gen. No. 42,136.
    Heard in second division, first district, this court at February term, 1942;
    opinion filed May 14, 1942.
    David I. Swanson and John E. Erickson, for appellants; George L. Pilkington, of counsel; Walter Hamilton, for appellee.
   Opinion by

Justice Sullivan.

“Not to be published in full.”


author: Presiding Justice Huffman.

text:
    In re Estate of Mary Elizabeth Murr, Deceased. Thelma Bowman Rodeseiler and Argyle Bowman, Appellants, v. John Cleveland Murr, Executor of Estate of Mary Elizabeth Murr, Deceased, Appellee.
    Gen. No. 9,745.

      Heard in this court at February term, 1942;
    opinion filed May 14, 1942.
    T. Fred Laramie, for appellants; William B. Friedrich, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in. full.”


author: Justice Dove.

text:
    Edward C. Dwyer and Pauline Rose Dwyer, Husband and Wife, et al., Appellees, v. Village of Glen Ellyn, Appellant.
    Gen. No. 9,744.
    Heard in this court at February term, 1942;
    opinion filed May 14, 1942.
    Robert J. Scott, for appellant; Richard M. White, of counsel; Wesley H. Westbrook, Richard F. Locke and Moses H. Kamerman, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Florence Hopper, Appellee, v. Edward Hopper, Appellant.
    Gen. No. 9,747.

      Heard in this court at February term, 1942;
    opinion filed May 14, 1942.
    Shapiro & Lauridsen, for appellant; Victor Lauridsen, of counsel; Victor N. Cardosi and Donald Gray, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.’’


text:
    Hiram E. Todd, Appellee, v. Charles P. Green, Appellant.
    Gen. No. 9,759.
    Heard in this court at February term, 1942;
    opinion filed May 14, 1942.
    Wallace J. Black and Kenneth W. Black, for appellant; Morgan & Morgan, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.’’


text:
    People of the State of Illinois ex rel. Witly Z. Mitchell, Appellant, v. Otto W. Armspach, President of Village of Villa Park, et al., Appellees.
    Gen. No. 9,770.

      Heard in this court at February term, 1942;
    opinion filed May 14, 1942.
    Joseph Sam Perry and McCarthy & Toomey, for appellant; Joseph Sam Perry, Frank A. McCarthy, John. E. Toomey and James John Cullen, of counsel; Thomas A. Matthews
    and Theodore F. Ashford, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Mr. Presiding Justice Burke

text:
    Mary Helen Knowles, Appellant, v. William A. Hastings and Aluminum Products Company, Appellees.
    Gen. No. 41,261.
    Heard in the third division of this court for the first district at the June term, 1940.
    Opinion filed May 27, 1942.
    Miller, Gorham, Westcott & Adams, of Chicago, for appellant; Sidney S. Gorham, Jr. and William Simon, both of Chicago, of counsel.

      Arthur W. Sprague, of Chicago, for appellees; Abraham Redmah, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a complaint filed in the circuit court of Cook county on April 10,1939, Mary Helen Knowles alleged that William A. Hastings, E. P. McClure and plaintiff each owned an undivided one-third interest in certain real estate in Oakland, California;.that on February 14, 1938' the property was sold and the proceeds divided among the three; that from January 1, 1936, until the date of sale, the net rents collected from the property amounted to $2,902.60, which were transmitted by agents in charge of the property to William A. Hastings; that plaintiff was entitled to be paid one third of said rents, or $967.53; that the net rents were deposited by- Hastings with the Aluminum Products Company, a corporation, and that although often requested, neither Aluminum Products Company nor Hastings had paid to plaintiff any part of said sum of $967.53. The complaint also contained allegations for money had and received. She prayed judgment against William A. Hastings and Aluminum Products Company for $967.53, plus interest at the rate of 5 per cent per annum from the date upon which they received the remittances. The defendants filed a general answer. Hastings admitted he received the money for the use of plaintiff, which he delivered to the corporate defendant for her use. Defendants further answered that plaintiff and the corporation contracted for the sale by plaintiff to the corporation of certain shares of its own stock, and that as a part of the contract of" sale, said indebtedness was to be extinguished. The corporation filed a counterclaim, praying for specific performance of the alleged contract for the sale of the stock. The case was heard by the court without a jury, which entered findings in favor of the defendants, and a decree that the contract of sale be specifically performed, to reverse which this appeal is prosecuted.

The counterclaim for specific performance involved 932 shares of the common stock of the Aluminum Products Company, which has its principal office at La Grange, Illinois. The 932 shares of stock were in the name of the City National Bank and Trust Company, as trustee. Plaintiff Mary Helen Knowles was the beneficiary under'the trust. The discussion as to "the settlement of the Oakland, California rent account, anc^ also as to the sale of the 932 shares of stock out of which this controversy arose, was between William A. Hastings, Chairman of the Board of Directors of the corporation, and Fred H. Knowles, husband of plaintiff. Prior to becoming Chairman of the Board of Directors, Mr. Hastings was President of the corporation. He is in active charge of its affairs. Mr. Knowles is in the insurance business. The Aluminum Products Company and Hastings were anxious to acquire the 932 shares of stock held in the name of the City National Bank and Trust Company, as trustee. Negotiations took place between Fred H. Knowles, acting’ for plaintiff, and William A. Hastings, acting for the corporation, as to the payment of the Oakland rent account. On March 3, 1938, the corporation sent a letter and a statement to Mr. Knowles showing that there was a total credit payable to the three tenants in common of $2,902.60, of which plaintiff’s share was $967.53. The letter stated that Mr. McClure and Mr. Hastings had accepted preferred stock in the corporation as payment for the rent account and proposed that plaintiff accept the same settlement. On April 12, 1938, Mr. Hastings wrote the following letter to Mr. Knowles:

“My son tells me you would like to get back all our insurance business. I assume that a 5 year contract would be of cumulative value to you. While I have not computed the actual value in terms of total commissions on all premiums, I assume from what Mr. Rogerson once told me that the amount would be quite sizable. I assume we have now more insurable property than we had when he had the account. You have something the company can use to advantage. When I purchased the Bogerson ‘interests’ in the A. P. Co., I had discussed with Trustees in First National Bank, not the purchase of part of their interests but 100% of their interests. That was the deal. The overlap of common stock was a surprise to me later. However, that water is over the mill now and perhaps we can consummate a deal for mutual interests.” On April 18, 1938, Hastings, in a letter to Mr. Knowles, suggested that “we pay you Oakland back rents in preferred stock with the agreement that we will retire same at the rate of $100.00, payable monthly, until paid. The common stock, the A. P. Co. will offer to buy all of it for $2.50 per share and pay you $200.00 per month for same. If things happen to put the A. P. Co. in possession of certain cash funds we will agree then to pay you all the balances in full and promptly.” This was followed by a postscript, stating that “If agreeable Judge Sprague [attorney for the corporation] will draw up a short agreement and the proper legal authority for the Board of Directors.” On April 28,1938, Knowles sent the following letter to Hastings: “I gather from your letter of April 18, that you are still interested in some kind of an agreement involving the purchase of Mary-Helen’s stock and my carrying your insurance. Altho when I spoke to you last I did not believe we would be able to come to an agreement, your fair attitude in this letter leads me to believe that we can come to terms. As I explained to you before, I do not feel that it is fair for me to accept for Mary-Helen, an amount for her stock less than it is actually worth, even tho you promised me your insurance for five years. The commission on this insurance, while I would be very happy to handle it for you, will still not make me weathy. I have felt that when, as and if the Aluminum Products stock reached a value of $4.00, a share, I would let you have it, but in view of the present conditions, I believe that $2.50 would be a fair price, if the transaction were for cash. Suppose we waive all interest and dividends on this stock and the balance from the Oakland property back rents and call the price $3. per share. Your suggested method of payment will be agreeable. I have negotiated with the Hartford Accident & Indemnity Company regarding your workmen’s compensation insurance and have finally persuaded them.to write it on the old basis of $1.40 per hundred dollars of payroll. This represents a discount of 28 per cent off the manual rate. Altho this may seem elementary to you, this has been difficult due to your recent unfortunate losses and due to the Bureau ruling which prohibits a discount of greater than 20 per cent on all new risks. If you are still amenable, I should like to see this transferred now. Regarding the fire insurance, I am sure that we can obtain this on a very favorable basis. I cannot feel that a written agreement is hardly the proper solution to the method of handling this negotiation. In my opinion there are too many angles involved including the fact that there are three interests involved on my side, namely, the Bank, Mary-Helen and myself. I am convinced that they will be agreeable, but I am sure the Bank would not sign an agreement. I would prefer simply to depend on your fairness and promises. Awaiting your advices, I am.” On May 2, 1938, the corporation, by W. A. Hastings, wrote Mr. Knowles: “Your letter of April 28th received. Your proposal, viz: $3.00 per share for 932 shares is agreeable. We to pay you $200.00 per month until you shall have received a total of $2796.00. All other accounts to be wiped out in accordance with your letter of April 28th, referred to above. Your suggestions on the insurance are acceptable.” On May 13, 1938, in a letter signed by Hastings, the corporation wrote:
“It may be more than 30 days before we can'send the C. P. A. statement to the Bank as per your request. To change capital structure set-up at Springfield it will be necessary to hold a special stockholders meeting or get waivers. In the meantime will you temporarily accept preferred stock to wipe out the Oakland rent arrears with the understanding that both this Preferred stock and the 932 shares of common stock will be liquidated promptly, as per your own written proposal under date of April 28th, and our written acceptance under date of May 2nd? Please advise.” Plaintiff maintains that she and the corporation did not enter into a contract for the sale of 932 shares of common stock. Defendants argue that plaintiff and the corporation entered into a contract for the sale of 932 shares of common stock and the liquidation of the Oakland rent credit. The position of defendants is that plaintiff contracted to sell to the corporation 932 shares of its common stock at $3.00 a share, which sum was to include the liquidation of the debt of $967.53 owing to plaintiff. Defendants insist that the letters exchanged between the parties, culminating in defendants’ letter of May 2, 1938, consituted a binding agreement which a court of chancery will enforce by a decree for specific performance. Plaintiff points out that she does not own any stock in the corporation, and that the stock is in fact owned by the City National Bank and Trust Company, as trustee, under a trust agreement, and urges that the letter written by Fred H. Knowles on April 28th was merely a preliminary negotiation with respect to a contemplated sale and does not purport to bind Mary Helen Knowles in the sale of the stock. She also insists that the letter of April 28th was signed by her husband and does not purport to have been written for or on her behalf. In our opinion the record discloses that Mr. Knowles had full authority to act in behalf of plaintiff.

We have also considered the testimony of Mary Hamilton, secretary for the corporation, in which she recited a telephone conversation with Mr. Knowles following the receipt by the corporation of Mr. Knowles’ letter of April 28th, and before the dispatch of the corporation’s letter of May 2nd. She testified that in this conversation she asked Mr. Knowles whether he meant what he said in his letter, namely, “that he was willing to cancel the Oakland rent by a transfer of the stock,” and that he answered, “Yes.” Mr. Knowles testified that he had no recollection of the conversation with Miss Hamilton, but that he would not deny it. He also testified that if he had such a conversation he probably said that he meant what he said in his letter. Our view is that the conversation with Miss Hamilton amounted to no more than an oral verification of what was said in the letter and does not enlarge the language of the letter.

The position of defendants is that the letter of May 2, 1938 constituted an acceptance of the alleged offer contained in Mr. Knowles’ letter of April 28th. Mr. Knowles’ letter of April 28th was in reply to Mr. Hastings’ letter of April 18th. It will be noted that Mr. Hastings’ letter of April 18th suggested payments totaling $300 a month. In his letter of April 28th, Mr. Knowles tells Mr. Hastings that “your suggested method of payment will be agreeable,” Yet, in defendants ’ letter of May 2nd, which they say constituted an acceptance of the offer contained in the letter of April 28th, defendants tell Mr. Knowles that they “will pay you $200 per month until you shall have received a total of $2,796.” Hence, in the letter of May 2nd, the corporation said it would pay $100 less than was contemplated in the letters of April 18th and April 28th. Despite the contention of defendants that the letter of May 2nd constituted an acceptance of the alleged offer contained in Mr. Knowles’ letter of April 28th, defendant corporation wrote a letter on May 13th, which clearly shows that the negotiations for the sale of the common stock and the payment of the Oakland rent account were still in progress. It is apparent from these letters, that the minds of the parties were not in agreement. It is well established that a contract may be created by the exchange of letters. We are satisfied that the exchange of letters between the parties was intended as preliminary negotiations, and that the parties did not intend such letters to be a binding contract. From a careful reading of all the letters, and particularly Mr. Knowles’ letter of April 28th, we are convinced that he did not intend that letter to be a binding offer, but merely a preliminary negotiation. The evidence does not establish the existence of a contract with the certainty required as a basis for specific performance. Hence, the chancellor was in error in finding that the parties entered into a binding contract to sell the stock and in decreeing specific performance.

At the trial it was stipulated that the plaintiffs, Mary Helen Knowles, William A. Hastings and E. P. McClure, were the owners of the real estate located in Oakland, California, and that plaintiff’s share in the net rentals from the property was $967.53. This money was actually received by the defendants prior to March 1, 1938. Both of the defendants are liable to plaintiff in the sum of $967.53. Plaintiff also claims interest at the rate of 5 per cent per annum from March 1, 1938. Section 2 of the Interest Act (sec. 2, ch. 74, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 67.02]) provides that creditors shall be allowed to receive interest at the rate of 5 per cent on money due on the settlement of accounts from the day of liquidating accounts between the parties and ascertaining the balance. The account in the instant case was liquidated and the balance ascertained on or about March 1,1938. Hence, plaintiff is entitled to recover interest.

As we have stated the affirmative reasons for our opinion, it is unnecessary to discuss many of the other points covered in the briefs.

For the reasons stated, the decree of the circuit court of Cook county is reversed and the cause remanded with directions to dismiss the counterclaim for want of equity and to enter judgment for plaintiff and against defendants for $967.53 plus interest at the rate of 5 per cent per annum from March 1, 1938, until the day judgment is entered.

Reversed and remanded with directions.

Hebel and Kilby, JJ., concur.


text:
    Lillian M. Shenk, Administratrix of Estate of Roy L. Shenk, Deceased, and Caroline Masimer, Administratrix of Estate of William C. Masimer, Deceased, Appellees, v. Henry A. Scandrett et al., Trustees, Appellants.
    Gen. No. 41,990.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed May 27, 1942.
    Carson L. Taylor and Edwin R. Eckersall, both of Chicago, for appellants; M. L. Bluhm, of Chicago, of counsel.
    Royal W. Irwin, of Chicago, for appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Lillian M. Shenk, administratrix of the estate of Roy L. Shenk, deceased, and Caroline Masimer, administratrix of the estate of William C. Masimer, deceased, filed their complaint in the circuit court of Cook county, alleging that the defendants, common carriers in interstate commerce, had possession and control of and maintained a bridge, or viaduct, in Route No. 45, otherwise known as Mannheim Road, over and across certain tracks of the defendants at the Village of Franklin Park; that on October 19, 1937, plaintiff’s intestate Roy L. Shenk was the owner of and driving an automobile in which plaintiff’s intestate William C. Masimer was a passenger; that said automobile skidded and plunged through the guard rail of said bridge and fell to the railroad tracks below, resulting in the death of both of said intestates. The charges of negligence are: (a) that defendants carelessly and negligently kept, furnished and provided the surface of the incline approaches to said viaduct in a wet, slippery and skiddy condition; (b) that defendants carelessly and negligently constructed and maintained the surface of said incline approaches of wooden planks laid diagonally in the surface of said roadway ; (c) that defendants carelessly and negligently failed to cause the surface of the planks in the roadway on said incline approaches to be covered with gravel, asphaltum, cinders or other substances to prevent the same from becoming skiddy and slippery when wet; (d) that defendants carelessly and negligently failed to prevent traffic from passing over said incline approaches when the same were wet, slippery, skiddy and dangerous; (e) that defendants carelessly and negligently failed to give suitable, sufficient and proper notice, signal and warning that the surfaces of said incline approaches were wet, slippery, skiddy and dangerous; and (f) that defendants failed to comply with a certain ordinance of the Village of Franklin Park, Illinois, whereby the defendants agreed to construct and maintain said incline approaches to said viaduct in suitable, safe and proper condition. Defendants answered and traversed .each allegation of negligence charged in the complaint. They also denied that the accident was the proximate result of any negligence on their part, denied that decedents were in the exercise of ordinary care for their own safety, and alleged that the sole cause of the accident was the negligence of Roy L. Shenk, with or without the contributory negligence of William C. Masimer. A trial before the court and a jury resulted in separate verdicts of $10,000 each in favor of plaintiffs. Separate judgments were entered on the verdicts, to be paid in due course of administration of defendants’ trusteeship proceedings in the Federal Court. Defendants’ motions for judgment non obstante veredicto, for a new trial and in arrest of judgment were overruled. This appeal followed.

Plaintiffs ’ theory is that the defendants maintained the surface of the viaduct in an extremely dangerous condition for a long period of time; that defendants, under their contract with the Village, agreed to construct and maintain the viaduct; that defendants’ duty to maintain the viaduct was the same duty that rested ' upon the Village; that a portion of the approach to the viaduct consisted of planks, which when wet were notoriously slippery; that it was an unusual situation; that planking is not commonly used in surfacing’ roadways in this part of the country; that in fact one would have difficulty in finding a roadway surfaced with planks on any road, bridge or viaduct in this locality; that the decedents were residents of Pennsylvania and at the time of the occurrence were passing through this locality on their way to Wisconsin; that they were wholly unfamiliar with the situation; that they were suddenly confronted with a danger of which they had no notice, and that as they were confronted with the dangerous situation, they were in the exercise of due care for their own safety. Defendants’ theory is that they exercised ordinary care in the construction and maintenance of the bridge; that the slippery condition of the bridge was due to rainy weather, over which defendants had no control; that there were adequate warning signs placed on the highway and bridge, advising of its slippery condition when wet; that plaintiffs ’ intestates were guilty of contributory negligence in driving their automobile at a high and dangerous rate of speed while approaching and while on the bridge.

There is no substantial dispute as to the facts of the case. The defendants and their predecessors constructed and maintained a bridge constituting a link in what is known as Mannheim Road, Route 45, this bridge passing over the tracks and yards of the defendants in Franklin Park, Illinois, one of the western suburbs of Chicago. Mannheim Road and the bridge extend in a northerly and southerly direction. Mannheim Road is a well-paved concrete highway and is 40 feet wide south of the point where it joins the bridge. At a point about 500 feet south of the approach to the bridge, the roadway narrowed down to a two lane highway. The roadway then proceeded almost directly north to the first approach of the viaduct. The elevation of the roadway at the south end of the approach was paved with concrete for a distance of 191 feet. The roadway of the approach to the top of the viaduct was paved with wooden planks, and it was on these planks that the accident occurred. The viaduct lies entirely within the Village. On July 17, 1913, the Village and the defendants’ predecessors entered into a contract ordinance to erect and maintain the viaduct in Mannheim Road across the tracks of the defendants. No question was raised as to the responsibility of the defendants for the maintenance of the viaduct. The bridge was constructed substantially in accordance with the terms of the ordinance. The bridge floor was renewed in January, 1937, at which time a new timber wearing surface was laid. The timbers in the roadway of the bridge were laid diagonally and measured 4 inches by 12 inches. The roadway of the bridge was 20 feet wide. Beginning at the point where it adjoins the concrete highway, the roadway ascended to the north at a 5 per cent grade for a distance of 427.7 feet, at which point it leveled off to cross the tracks and then descended to the north, returning to the concrete pavement of Mannheim Road. There was a sidewalk on the west side of the bridge. There was no sidewalk on the east side. The sidewalk from the face of the curb, or from the west edge of the roadway to the extreme west edge of the planking and sidewalk was 6 feet 3 inches wide. The level of the sidewalk proper was 10 inches higher than the roadway, and on top of the sidewalk was a 3 inch piece, which acted as a curb, thereby making the curb adjoining the roadway and the sidewalk 13 inches higher than the roadway. On the west side of the sidewalk was a three pipe horizontal railing, with stanchions or supports at 8 foot intervals. There was a curb on the east side, of the roadway similar to that on the west side. The curb on the east side was 12 inches high at some places and 13 inches high at others. To the east of the curb on the east side of the roadway was a handrail similar to that adjoining the sidewalk on the west side. The timbers constituting the curbs and. the handrail stanchoins were bolted to the surface of the bridge. Approaching the bridge from the south there was a “slow” sign on the east side of Mannheim Road at a point 1177.7 feet south of the juncture of the concrete highway and the plank roadway of the bridge. There was a “Narrow Pavement” sign on the east side of Mannheim Road at a point 894 feet south of the juncture of the concrete and the planking of the bridge. At a point 695.5 feet south of the juncture of the concrete highway and the plank roadway of the bridge, the concrete pavement begins to narrow, narrowing from 40 feet at that point to 20 feet at the point where the concrete joins the plank roadway of the bridge. There was a “Slippery When Wet” sign at the foot of the approach to the bridge. It rained during the night of Monday, October 18, 1937, and the early morning of Tuesday, October 19, 1937. The planks in the surface of the driveway of the bridge were thoroughly wetted, which made them very slippery. It had been raining continuously from 10 or 11 o’clock the evening of Monday, October 18th, and when the accident occurred it was still drizzling. It had also rained on the preceding Sunday.

Roy L. Shenk and William 0. Masimer lived in Hershey, Pennsylvania. They left Hershey in Shenk’s new autombile at about 3 o’clock on the morning of Monday, October 18th, with the intention of driving to Wisconsin to buy cattle. At about 6:40 on the morning of Tuesday, October 19th, Shenk, accompanied by Masimer, drove his automobile in a northerly direction on Mannheim Road at a speed of about 45 miles per hourt. Visibility was good for a distance of 400 feet, according to the testimony of one .of plaintiff’s witnesses, and for 500 feet according to the testimony of another of plaintiffs’ witnesses. The sky was overcast. When the car entered the bridge it had to make a turn of probably 10 or 15 feet to the left. The occupants of the car were observing the roadway because the car proceeded from the four lane highway into the two lane highway and went up the approach to the viaduct on the right hand side. When the car got on the wet, wooden planking, it started to skid, and at a point 200 feet north of the juncture of the concrete highway with the plank roadway of the bridge, it climbed the 13 inch curb on the west side of the roadway of the bridge. The car then drove upon the sidewalk at the west side of the roadway of the bridge for a distance of 97 feet, bumping against the handrail on the west side of the sidewalk as it proceeded. It then left the sidewalk proceeding in a northeasterly direction on a diagonal course across the roadway of the bridge a distance of 46 feet. The car then returned to the west side of the bridge and then again headed to the east side of the bridge. Upon reaching the east curb of the bridge at a point 362 feet north of the juncture of the concrete highway and the wooden roadway of the bridge, the automobile climbed the 12 or 13 inch curb adjoining the roadway, broke through the handrail and plunged to the railroad tracks below, coming to rest at a point estimated by one of plaintiffs ’ witnesses to be 20 to 30 feet east, and 40 feet north of the point where it left the bridge, and by another of plaintiffs’ witnesses at a point a few feet east and twenty feet north of the point where it left the bridge. Both Shenk and Masimer were instantly killed by the force of the fall from the bridge. -

Defendants maintain that the only requirement of the law in the construction and maintenance of bridges and their approaches is that they should be reasonably safe for the ordinary needs of travel, and insist that there was no negligence oni their part. They declare that failure to give warning of an existing condition does not constitute negligence where plaintiffs’ intestates had full knowledge of such condition. Plaintiffs answer defendants’ contentions by asserting that the evidence shows that defendants were guilty of negligence in the maintenance of the roadway, and support their contention by calling our attention to certain phases of the testimony. Edward H. Daily testified that the signs along Mannheim Road designate the speed at 45 miles per hour. E. H. Martin, a police officer who arrived on the scene of the accident shortly after the occurrence, testified: “I believe there had been about five accidents, four accidents prior to this particular one on Tuesday. . . . When it was wet the plank pavement was slippery. I observed that pavement in driving over it in an automobile. When it was wet I observed it was slippery due to the fact that several times when I drove over it with my squad car and in my own automobile I had experience myself in skidding on the bridge.” Helen G-ronewald testified: “I had an experience there on August 19, 1937. At that time I was in Mrs. Suter’s car. She is a friend of mine. She is a school teacher. On this day it was raining. We were going home from Mattoon, Illinois. We were going north on Mannheim Road. . . . Well, we started up the bridge and the car skidded from one side to the other and she was a very slow driver. Then it went over the railing on the right side and knocked those iron bars, or something, I don’t know what they are, knocked them off and she straightened the car, and the tire went underneath the bridge on a beam and one of the iron bars got caught on the fender, and that is what held the car up, and she turned off the ignition and pulled that thing on one side, whatever it is, and she jumped out of the car and pulled me out. ... As our ear went up the viaduct it was going about 20 miles an hour at the time it went into this skid. When it skidded it just seemed to go from side to side. You couldn’t straighten it at all. It just kept hitting from one side to the other, just going back and forth like this. [Illustrating] When I say it went from side to side, I mean that the car moved sidewise, it just skidded on the side this way and then it would skid this way.” Martin Majewski, a police officer who arrived on the scene shortly after the accident, testified: ‘ ‘ The surface of the planks was very smooth. They were very slippery, almost white, worn out from tires. These planks were always being replaced as they were worn down, and were in the same condition, very slick. I had ridden over these planks when they were wet and in a rainstorm. Sometimes five or six and seven times a night. We would always take it awfully easy across there. Sometimes the State would throw cinders on there when it was slippery, but at times before they would get there it was very slippery.” Mildred Krueger testified that she had occasion to ride over the viaduct many times in 1937 when it was raining. She testified: “The planking on the south approach was very slippery. It had rained all night and the surface of the viaduct was very damp and wet. It was very slippery. About two or three months before I know of another car that went through there at the same place. I was there and saw it.” Marie Klemmer testified: “When we went over these planks we skidded. Our car was not going very fast when we skidded. My friend, Mrs. Conker, was driving the car. This took place about a year before this other accident. I don’t know how many times that happened to me, but two times I know. The other time was quite a while before.” Henry Noble testified: “I traveled over that road on June 16,1937, going north. I had an accident on the south approach of the viaduct going north. I skidded from the right lane, the northbound lane, and came to a stop in the left or southbound lane and had a head-on collision, with the car coming south in that lane. To the best of my memory I was driving about 22 or 23 miles an hour when I skidded. I have never been sure why I skidded. My car seemed to simply jump sideways from right to left and it wound up on the southbound lane. It was not as much of a forward skid as it was a sidewise skid.” Edward H. Daily was driving an automobile behind that occupied by Shenk and Masimer. The automobile occupied by Shenk and Masimer passed that occupied by Daily a short distance south of the bridge at a speed of about 45 miles an hour. Daily testified that the automobile hit the west curb of the bridge, crossed over to the east curb, crossed back to the west curb again, crossed to the east curb to the point where it finally passed over the east curb and plunged through the railing out into the railroad yard. Defendants point out that although Daily drove over the bridge behind Shenk and Masimer within a matter of seconds after they had their accident, he did not skid on the bridge when he went over it. Defendants also call attention to the fact that E. H. Martin, called by plaintiffs, testified that he had served on the police force of the Village for four years; that he had owned a truck and automobiles before going on the police force ; that he had been driving automobiles for about ten years prior to the time of the accident; that while serving on the police force and carrying on his own business, Martin had occasion to drive over the bridge many times; that while he stated he had skidded on the south approach of the viaduct, he did not testify to having had any accident of his own, and only testified to having been called as an officer on two accidents other than that involved in this case. Defendants also point out that Officer Majewski of the Sheriff’s Highway Police testified that he drove over the bridge frequently; that he recalled the incident testified to by Helen G-ronewald; that he was called to the accident which is the subject matter of this suit, but did not testify to having been called on any other occasion, and that he personally had never had an accident on the viaduct. Defendants also call attention to the fact that Mildred Krueger testified that she drove over the bridge frequently in 1937; that she knew of the incident testified to by Helen Gronewald and of the accident involved in the case at bar, but stated that in all the years she had been driving an automobile, she had never had an accident on the viaduct herself. She had always lived in Franklin Park, just a block east of the viaduct along the railroad track, and had been driving for 15 or 18 years, and had been over the bridge many times. Defendants call attention to the fact that Marie Klemmer testified that she had lived in Franklin Park for over 40 years; that the bridge was slippery when wet, but that she did not testify to having been in any accident on the viaduct herself. Henry Noble testified that he had skidded in ascending the south approach of the viaduct. Thomas H. Strate, called by defendants, testified that he was division engineer for the railroad company; that he had worked for the railroad for 39 years; that the viaduct was constructed substantially in accordance with the terms of the contract ' ordinance; and that the entire south approach to the viaduct was renewed in January 1937. The photographs introuced by defendants, taken the day following the accident, showed clearly that the bridge floor was smooth, and contained no irregularities, bumps or depressions. Defendants point out that plaintiffs produced seven witnesses to prove the allegations of their complaint, and observe that Daily, who was driving closely behind the car in which the decedents were riding, passed over the bridge without the slightest difficulty and without skidding, within a matter of seconds after the accident; that although this was a 40 foot wide state highway and an exceedingly busy one, only two persons were produced who had ever had , accidents on the bridge, namely, Helen Gronewald and Henry Noble; that the two policemen, E. H. Martin and Martin Majewski, who, in the course of their duties, must have gone over the bridge thousands of times, in all kinds of weather, never had an accident there, and that the witnesses, Mildred Krueger and Marie Klemmer, who lived in Franklin Park practically all of their lives and who drove over the bridge frequently, never had an accident on the bridge. It is undisputed that the railroad stood in the position of the Village of Franklin Park, and that there was a duty on the defendants to maintain the roadway in a reasonably safe condition. Plaintiffs argue that the condition that existed on the approach to the viaduct was extremely dangerous and; hazardous, and was one that a motorist would not ordinarily expect, and that similar conditions are not to be found in this vicinity. They maintain that in the vicinity of Chicago the roads are either surfaced with concrete or nonskid asphaltum. Evidence of prior accidents occurring at the same place was admitted as tending to show that the common cause of such accidents was the dangerous and unsafe condition.

We agree with the defendants that the testimony fails to prove the allegations of the complaint. The defendants constructed and maintained the bridge in a condition reasonably safe for the ordinary needs of travel. It is true that the surface of the bridge, like the surface of a highway in general, is slippery when wet. That fact is not disputed. The sign at the bottom of the south approach to the bottom of the viaduct reading “Slippery When Wet” was erected and maintained by defendants and constituted a warning to all persons approaching the bridge that they must exercise care in driving upon it when wet. Such signs are frequently seen on State and county highways and on city boulevards. Their purpose is to warn people of a well-known fact, namely, that roadway surfaces are slippery when wet. This bridge was not slippery when dry. In Evans v. Muscatine Bridge Gorp., 228 Iowa 811, 293 N. W. 470, action was brought to recover damages for injuries sustained when plaintiff’s car skidded when descending defendant’s bridge. A judgment rendered for the plaintiff was reversed. The evidence showed that the bridge roadway was 17 feet wide, descended at a 4.7 per cent grade and had an 8 foot curb on either side. After stating the rule that a bridge company is answerable in damages only for' failure to exercise ordinary care, and that the bridge must be kept in a reasonably safe condition for travel, the court said at pages 473, 474:

“The substance of plaintiff’s evidence is that the roadway was slippery because it was wet. Plaintiff does not claim the surface was slippery because it was oily, that is, the alleged dangerous defect is that the bridge floor was wet. The uncontroverted evidence shows that the roadway was not oily, that wet asphalt plank is less slippery than wet asphalt because of the felt used in its composition and that an asphalt surface is less slippery than concrete pavement. So far as shown by the evidence, the roadway was as safe to travel on. as an asphalt or cement highway. The roadway was not slippery when dry and plaintiff was aware of the only condition that made it dangerous, that is, she knew it was wet. It was her duty to drive her car with the care commensurate with the inherent danger of a wet, hard-surfaced road and this, as hereinafter stated, she failed to do. The evidence discloses no defects in the construction or maintenance of the roadway and on this record we are compelled to hold the defendant performed its duty to keep the bridge in a reasonably safe condition for travel. Under the most favorable view of the evidence rule there was not sufficient evidence to warrant the submission of negligence of the defendant to the jury and the case must be reversed.” In our opinion, the reasoning in the latter case is applicable to the factual situation before us. There is no contention on the part of plaintiffs that defendants were guilty of any negligence in the construction and maintenance of the guard rails along the sides of the roadway.

Finally, defendants argue that plaintiffs’ intestates were guilty of such contributory negligence as precludes any recovery. Defendants point out that these men, knowing that it had been raining steadily for a long period of time, approached the viaduct from the south; that the automobile first passed a “Slow” sign posted on the east side of Mannheim Eoad at a point 1100 feet south of the plank roadway; that they passed a “Narrow Pavement” sign at a point 894 feet south of the plank roadway; that they observed that the concrete pavement began to narrow from a width of 40 feet to a width of 20 feet at about 695 feet south of the plank roadway; that théy passed the base of the bridge on which there was a “Slippery When Wet” sign; and argue that all of these signs should have given ample notice and warning to the occupants of the automobile that they were approaching a place where diligence should be exercised to avoid injury to their persons; that if they were in the exercise of ordinary care they should have observed the fact that the concrete road was narrowing to enter upon the bridge, and should have observed that the bridge was narrower than the concrete highway, that the flooring of the bridge was built of wood, and should have known by the common observation of reasonable persons that the wooden flooring of the bridge would be slippery because of the rainy weather. Notwithstanding the warning signs and the weather conditions the automobile was being driven at a speed of 45 miles an hour when it passed the witness Daily a short distance south of the bridge. We agree with the contention of defendants that the proximate cause of the accident was the negligence of the men driving and riding in the automobile. We find as a matter of law that plaintiffs failed in their attempt to prove that defendants were guilty of negligence, and also failed to prove that Boy L. Shenk and William C. Masimer were in the exercise of due care and caution for their own safety.

Because of the views expressed, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to enter judgment notwithstanding the verdict for defendants and against plaintiffs.

Reversed and remanded with directions.

Hebel and Kilet, JJ., concur.