text:
    Seither and Cherry Company, Appellee, v. Board of Education of District No. 15, Town of La Harpe, Illinois, Appellant.
    Gen. No. 8,957.

      Opinion filed January 17, 1936.
    Edward S. Martin, of Carthage, for appellant.
    John W. Williams, of Carthage, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.

Appellee commenced a suit in assumpsit in the circuit court of Hancock county on June 2, 1933, against the city of La Harpe and the board of education of District Number Fifteen (15), in the town of La Harpe, in Hancock county. A summons was issued and duly served upon said defendants on the 20th day of June, A. D. 1933. The declaration filed by plaintiff consisted of the common counts.

Afterwards said suit was dismissed as to the defendant, City of La Harpe. An affidavit of claim was filed by plaintiff in which it was stated that there was due plaintiff after allowing all just credits, deductions and set-offs the sum of $4,724.94 for plumbing, heating and ventilation for the new school at La Harpe, Illinois.

So far as it appears from the record the defendant, board of education of District Number Fifteen (15) in the Town of La Harpe, filed no plea and did not enter its appearance in said cause, although from affidavits filed it appears that Homer H. Williams, an attorney, represented it.

On October 16, 1934, the court entered judgment as follows: -

“And proof being now here made to the court that due personal service has been had on the defendant, Board of Education of District No. 15, as required by law, and said defendant not appearing in court, nor anyone appearing for said defendant, said defendant, Board of Education of District No. 15, is now here three times solemnly called in open court, but still comes not, nor comes anyone for said defendant, wherein said defendant makes default, which is, on motion of plaintiff’s attorney, ordered to be taken and the same is hereby entered herein of record. Whereby the plaintiff’s order to have and recover of and from the said defendant, Board of Education of District No. 15, its damages sustained herein by reason of the premises.

“Thereupon reference is had to the court to assess the plaintiff’s damages herein against the defendant, Board of Education of District No. 15, and the court now here, after hearing all the evidence adduced and being fully advised in the premises, finds the issues for the plaintiff and assesses the plaintiff’s damages to the sum of Four thousand seven hundred twenty-four dollars and ninety-four cents ($4724.94).

“Therefore it is considered by the court that the plaintiff, Seither & Cherry Co., a corporation, do have and recover of and from the defendant, Board of Education of District No. 15, its damages of Four thousand seven hundred twenty-four and ninety-four hundredths dollars ($4724.94), in form as aforesaid, by the court assessed, together with its costs and charges in this behalf expended.”

On March 7, 1935, the defendant moved the court to redocket said cause and for leave to file a motion and affidavit in support thereof for the purpose of setting aside the judgment rendered by default against it and to fix a time for the filing of said motion, and thereupon the court granted leave to defendant to file a motion and affidavit in support thereof, as prayed for, on or before the 12th day of March, 1935.

On March 12, 1935, said defendant filed its motion and moved the court that the order of default heretofore entered against it in said cause and the judgment rendered by the court against it be set aside, and declared to be void and of no force and effect; and further that, if said judgment is not set aside, the same be opened up and the defendant be permitted to defend against said action and to plead to the declaration.

In support of said motion it filed the affidavit of Ralph J. Widney, president of the board of education of School District Number 15, Hancock county, in which it is stated that Homer H. Williams, an attorney, originally represented defendant and that said Williams claims to have withdrawn his appearance for the board, but that said withdrawal does not appear of record.

That he believes that defendant has a meritorious defense to said cause of action; that the records of the defendant show that the property claimed to have been sold by the plaintiff to the defendant, and the purchase by the defendant from the plaintiff was purchased on or about the 29th of May, 1928, the total amount of said contract being for $15,208; that the value of the taxable property of said school district, as ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness, was $835,489; that at the time of the purchase of said property said school district was indebted to an amount exceeding five per cent of the value of the taxable property of said school district. Said indebtedness consisting of bonds of said school district, tax anticipation warrants arid current bills, and that he believes that because of said indebtedness of said school district that at the time of entering into said contract that any contract that they entered into was then and is void and of no force and effect.

John W. Williams, attorney for plaintiff, made an affidavit in which he stated that suit was commenced on June 2, 1933, to the October term, 1933, of the circuit court of Hancock county, and that the declaration was filed on October 2, 1933; that defendant was personally served with process on June 20, 1933, and that shortly thereafter Homer H. Williams, an attorney, purported to represent defendant; that on or about . October 16, 1934, he went to said Homer H. Williams, who appeared as attorney of record for defendant, and asked him if he desired to plead in behalf of defendant in said cause and that said Williams then informed him that said defendant did not intend to plead and that no plea would be filed or defense made, whereupon he, as attorney for plaintiff, asked and obtained a judgment by default against defendant on October 16,1934.

On June 12, 1935, the court after having heard said motion and after being fully advised in the premises overruled the same. Defendant thereupon, on September 5, 1935, filed its notice of appeal in which it prays that the order and judgment or decision of the circuit court entered on June 12, 1935, be reversed and set aside and for nought held, and that said judgment be opened up or vacated and said judgment declared null and of no force and effect, or that defendant be permitted to plead to the declaration filed in this cause and make defense.

By its motion appellant moved the court to set aside the default entered against it in said cause and the judgment rendered by the court against it and to declare said judgment to be void and of no force and effect, and further that if said judgment is not set aside, that the same be opened up and that it be permitted to defend against said action and to plead to the declaration.

From the language used it might be concluded that appellant combined a motion to set aside the default and open up the judgment and for leave to plead, with a motion under section 72 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ff 200, in the nature of a writ of error coram nobis. This, however, could not be the effect of the motion, as a motion to set aside a default and grant leave to plead must be made in the original suit, while a motion to correct errors in fact committed in the proceedings of any court of record provided for by said section 72, being in the nature of a writ of error coram nobis, is the commencement of a new suit at law to recall or reverse the judgment, and the motion is plaintiff’s declaration and new issues are made up and that suit is independent of the proceeding in which the judgment sought to be set aside was rendered and an entirely different suit at law and the judgment rendered is a final appealable judgment. Harris v. Chicago House Wrecking Co., 314 Ill. 500; Domitski v. American Linseed Co., 221 Ill. 161.

Appellant insists that the court erred in not declaring the judgment void, or in not opening up the judgment and permitting it to plead. It also insists that the Civil Practice Act in force January 1, 1934, has no application to its motion.

This suit was commenced on June 2, 1933, and summons was served upon appellant on June 20, 1933, but judgment was not rendered until October 16, 1934. Eule 1 of the Eules of Practice, adopted by the Supreme Court, not only provides that, “All provisions of the Civil Practice Act with respect to review in civil proceedings by the Supreme or Appellate Courts shall apply to orders, determinations, decisions, judgments or decrees entered by trial courts after January 1, 1934, ” but it also further provides that, “The provisions of the Civil Practice Act with respect to service of process issued on or after January 1, 1934 (sections 6, 10, 13, 19), appearance (section 20), and trial practice (sections 48-73), shall apply to proceedings instituted prior to January 1, 1934, and not on trial prior to that day.”

It will be seen that sec. 50 (6), (7), of the Civil Practice Act, par. 178 (6), (7), ch. 110, Ill. State Bar Stats. 1935, which apply to this case, by reason of the provisions of said Eule 1, provide that: “(6). Judgment by default or a decree pro confesso may be entered for want of an appearance, or for failure to plead, but the court may in either case, require the plaintiff to prove the allegations of his complaint.” (7) “The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof, set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable. ’ ’

The judgment in this case which appellant sought to have declared null and of. no effect, or to have opened up with leave to plead, under the provisions of Eule. 1, is subject to the provisions of the Civil Practice Act. It is also subject to the provisions of, “An Act in relation to final judgments, decrees and orders of courts of record in criminal and civil proceedings and the power to modify, vacate or set aside the same,” approved June 21, 1933, and in force January 1, 1934, L. 1933, p. 678, pars. 268-270, ch. 110, Ill. State Bar Stats. 1935.

Prior to January 1, 1934, the date upon which the Civil Practice Act became effective, a court retained jurisdiction of the parties and subject matter of the suit until the end of the term of court at which the judgment was entered. After the termination of the term the court lost jurisdiction and a motion to vacate a judgment and set aside a default could not be granted. Baldwin v. McClelland, 152 Ill. 42.

Since terms of court are no longer the basis for fixing the time for doing any act or the taking of any procedural step, the court is governed by the provisions of said act of the general assembly in relation to final judgments approved June 21,1933, in force January 1, 1934, supra, which provides among other things that every judgment, final in its nature, of any court of record in any civil or criminal proceeding shall have the same force and effect as a conclusive adjudication upon the expiration of 30 days from the date of its rendition as, under the law heretofore in force, it has had upon the expiration of the term of court at which it was rendered.

The judgment that appellant seeks to open up was entered on October 16,1934, and no steps were taken to have the same opened up until March 7, 1935, when a motion was made to redocket said cause and for leave to file a motion to open up the same, which motion was filed on March 12, 1935, more than 30 days after the rendition of said judgment, and the court having had jurisdiction to enter the judgment and no showing having been made that the judgment was obtained through fraud committed by any of the parties to the suit, we assume that appellant does not contend that its motion is one entered in the original suit to set aside the default and open up the judgment and for leave to plead, as no relief prayed for could be granted under said motion. People v. Drysch, 311 Ill. 342.

“Appellant says that it appeals this case on simply one proposition and that only, that the affidavit to set aside the judgment taken against appellant by the appellee is the only basis upon which the judgment (overruling the motion) was rendered. That the affidavit shows that appellant was at the time of the making of the contract upon which the judgment was secured indebted in excess of the constitutional limitation.

“That if appellant had raised that question prior to the time the judgment was taken, that would have been a good defense; that whether or not the members of the Board of Education were negligent or not, that under the law the school district, which is really the defendant, cannot be charged with negligence by the act of their officers; they cannot be estopped to raise the questions raised in the motion to set aside the judgment . filed herein, and that any contract of any kind whatsoever made by a municipal corporation which is in violation of the constitution of the State of Illinois, is void and being void no court can render a judgment by virtue of it and that it makes no difference when, where or how the question is raised, if that is a fact.

‘ ‘ That the question is, whether or not under the constitution, considering the affidavit of claim, considering the affidavit to set aside the judgment, considering all the facts to be true as set up in both affidavits, the judgment is void or voidable. ’ ’

It must be borne in mind that this is not a proceeding brought by a taxpayer of the school district, or the intervention of a taxpayer alleging negligence and fraud on the part of the members of the board of education and seeking to have the judgment vacated. It is a proceeding brought by the board of education and their standing is no different than that of any other defendant seeking like relief under like circumstances.

Appellant does not contend that the relief prayed for in its motion to set aside the order of default entered against it, and the judgment rendered by the court and declare the same to be void and of no force and effect, can be granted under the provisions.. of section 72 of the Civil Practice Act, par. 200, ch. 110, Ill. State Bar Stats. 1935, which provides a method for the correction of all errors of fact committed in the proceedings of any court of record, and which by the common law could have been corrected by the writ of error coram nobis, but if the relief prayed for can be granted it must be under the provisions of said section 72, as this proceeding is the only one applicable or available to appellant as more than 30 days had elapsed after the rendition of the judgment and before the filing of the motion.

This section 72 is section 89 of the Practice Act of 1907, without change, and therefore the same construction should be given said section 72 as was given said section 89. In addition to the fact that no change was made in the wording of said section 72, the general assembly by section 3 of said act in relation to final judgments approved J une 21,1933, in force J anuary 1, 1934, supra, provided:

“Sec. 3. Any such judgment, decree or order may hereafter be modified, set aside or vacated after the expiration of thirty days in the same cases, to the same extent and by the same modes of proceeding as, under the law heretofore in force, it might have been moditied, set aside or vacated after the expiration of the term of court at which it was rendere'd. ’ ’

Our Supreme Court has said:

The errors which may be corrected by the court upon a motion of this kind are such errors of fact as could have been corrected by a writ of error coram nobis at common law. The errors of fact which can now be made the basis of a motion are not errors upon such questions of fact as arise upon the pleadings in the original case, or questions of fact averred in the pleadings upon which issue might have been taken, or such questions of fact as constituted the basis of the cause of action or defense upon the merits of the case or might have been pleaded as a defense to the merits. They are questions of the character mentioned in the cases or by the textwriters where the writ has been discussed as a means of correcting errors in the same court, and referred to the disability of parties, the incapacity of the plaintiffs to sue or the disability of the defendants to defend, such as infancy, coverture, death of one or more of the parties, death of a joint party, insanity. Any of these facts, if known to the court, would prevent the entry of a judgment, and it is error arising out of lack of knowledge by the court of such facts that the writ of error coram nobis, or the motion which is its substitute, applies, and not to lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it. In many States the difference in forms of action and methods of procedure in law and equity has been abolished, and the decisions of such States with reference to the relief which may be obtained on motion and the method of procedure throw no light on the practice at common law. No cases have been cited to us which carry the right to relief upon a writ of error coram nobis at common law beyond the cases specified by Tidd and the other writers which have been cited. Marabia v. Thompson Hospital, 309 Ill. 147; Village of Downers Grove v. Glos, 316 Ill. 563.

Only such errors of fact, committed in the proceedings of any court of record, and which by the common law could have been corrected by the writ of error coram nobis, may be corrected by the court in which the error was committed upon motion in writing. Sec. 72, Civil Practice Act, par. 270, sec. 3, ch. 110, Ill. State Bar Stats. 1935; People ex rel. Courtney v. Green, 355 Ill. 468.

The judgment was not void as contended for by appellant. A judgment is not void even though it may be erroneous, if the court had jurisdiction of the person of the defendant and of the subject matter of the suit and had power to render the particular judgment entered, and such judgment is valid until reversed, all of which facts appear from the record in the case. People ex rel. Merrill v. Hazard, 361 Ill. 60.

Appellant was served with summons on June 20, 1933, and it was not defaulted or judgment rendered until October 16, 1934. During all that time it failed to plead or demur to the declaration and its only excuse is that Homer H. Williams, a practicing attorney, originally represented it and that said Homer H. Williams claims to have withdrawn his appearance as attorney for the board of education, and that his withdrawal does not appear of record in said cause.

The statute declares such service sufficient and the defendant was bound by it, and the excuse set up in the affidavit was not sufficient to excuse its default. Even though Homer H. Williams had been employed to represent it as its attorney and had through negligence failed to file a plea and interpose any defense available to appellant or had negligently failed to notify it of his withdrawal as such attorney, if that were the fact, and had negligently failed to be present when the case was called for trial, it would not excuse such default. Having failed to present its defense by a plea or demurrer, the only question which could be presented upon the default was the sufficiency of the canse of action stated in the declaration.

Lack of knowledge by the court of facts which constitute a defense is not the error of fact which can be corrected by motion. It was the duty of the defendant to bring those facts into the record, and if it failed to do so the plaintiff was under no obligation to- do it, and the court committed no error in disregarding such facts, in rendering judgment. The facts alleged in the declaration were admitted. If they constituted a cause of action the court could do no more or less than render judgment against defendant. If they did not constitute a cause of action, its error in rendering judgment against the defendant was an error of law which can be reviewed only by an appeal to an appellate court. The trial court had no power, on motion, to correct its errors of law after a period of thirty days from the rendition of the judgment. Even though the defendant was indebted beyond its constitutional limits at the date of the making of the contract and that fact if pleaded would have defeated a judgment, yet such fact cannot be taken into consideration on this motion, as it, like any other defense, should have been brought into the record by the defendant. Marabia v. Thompson Hospital, supra.

It is also contended that the court erred in including in the judgment a considerable amount of money as interest. The declaration consisted of the common counts which included a claim for interest on divers gums of money forborne by the plaintiff for the defendant at its request for divers spaces of time. The record discloses that upon the default being taken the court heard evidence and assessed the damages of the plaintiff, and even though a sum of money was included in the judgment as interest, which is claimed by appellant to be erroneous, that question could only be reviewed upon appeal to an appellate court.

Finding no reversible error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Justice Fulton •

license: Public Domain

text:
    John M. Bransfield Company, Appellee, v. Robert Kingery et al., Appellants.
    Gen. No. 8,919.

      Opinion filed January 17, 1936.
    Otto Keener, Attorney General, for appellants; T. J. Courtney, Truman A. Snell, Jacob Shamberg, William J. Tuohy and Gerald E. Hornidge, of counsel.
    Doyle, Sampson & Giffin, of Springfield, for appellee; C. Terry Lindner, A. F. Newkirk and Stanley Thomas, of Springfield, of counsel.
   Me. Justice Fulton •

delivered the opinion of the court.

This action was brought by the John M. Bransfield Company, a corporation, the appellee, for a. writ of mandamus to compel the appellants, officials of the department of public works and buildings of the State of Illinois, to approve certain highway paving contracts theretofore awarded to appellee by the board of county commissioners of Cook county. Judgment was entered in favor of the appellee and the respondents, now the appellants, appealed.

The amended petition set up that the appellee was engaged in the building of hard roads and was qualified to bid on construction work to be let by the State of Illinois and its political subdivisions; that theretofore it had been awarded and diligently performed such contracts; that it had submitted its qualifications to the department of public works and buildings of the State qf Illinois and had been advised that it was qualified to handle paving work up to $1,963,200; that it had been placed on the approved contractors ’ list of that department; that the appellants, as officials of said department, were by law authorized to approve contracts let by county boards for the construction of roads designated as State aid roads; that pursuant to Article 4 of the Roads and Bridges Act the county board of Cook county, having determined to improve portions of Irving Park Boulevard, Eighty-seventh street, and Kedzie avenue, all in the City of Chicago, and having secured the approval of the State department for the plans of, construction thereof, advertised for and received bids for such work; that the county board awarded the several contracts to the appellee as the “lowest responsible bidder” and authorized the proper county officials to execute written contracts; that this was done and the appellee executed and delivered bonds for the faithful performance of the contracts.

The petition further alleged that thereafter the three contracts were submitted to the State department and its approval requested; that it became the duty of the appellants to promptly consider said contracts and each of them upon their merits, and to approve the same if found to be in proper form; that the appellants failed, neglected and refused to consider the contracts on the merits or the qualifications of the appellee; that the appellants have never claimed that the contracts or bonds were unsatisfactory, or that the appellee is not in every respect fully responsible and qualified to do the work, but that the appellants unjustifiably refused to approve the contracts. The petition prayed for the issuance of a writ of mandamus directing the appellants to consider the contracts upon their merits and to approve the same.

The answer set forth that the capital stock of the appellee consisted of 50 shares and that John M. Bransfield owned 48 shares of said capital stock, It denied that the appellee was qualified to make bids on the construction of hard roads or that it was financially responsible or qualified to do paving work or that it was on the approved contractors ’ list. It further alleged that while it was admitted that the appellee was the “lowest bidder” in each instance the matter of the awarding of the contract in each instance was opposed by the executive and law enforcing department of the county of Cook; that the contracts were returned unapproved to the county superintendent of highways with the statement that the State department and its officers under the present circumstances did not feel that it could approve any contract awarded to the appellee ; that the refusal was due to the fact that John M. Bransfield, the owner of 24/25ths of the capital stock of appellee, disqualified himself, in that he, with others, had been indicted by the grand jury of Cook county for conspiring to hinder and prevent persons engaged in the business of trucking and hauling coal within the City of Chicago, from carrying on their business unless these persons would pay to the said John M. Bransfield and the other defendants named in said indictment and to a certain organization called the trucking and transportation exchange various sums of money; that because of the indictment for criminal conspiracy, the executive departments of the State of Illinois and county of Cook regarded him as unfit to receive any contracts for public improvements, any part of which was payable out of State funds, until such time as he was legally acquitted of the charges in the said indictment. The answer further averred the refusal was not unlawfully or wrongfully made.

The replication denied that John M. Bransfield owned 48 shares but admitted that he owned 44 shares of the appellee corporation; stated that the State’s attorney was the only official in Cook county who opposed the awarding of the contracts; admitted the return of the indictment but averred that John M. Bransfield had pleaded not guilty and was innocent and generally denied all material allegations of the answer.

At a trial of the cause, heard by three circuit judges, all of the facts were covered by a stipulation entered into by the parties and substantially as follows:

That appellee, by its charter, was authorized to perform work of the character involved in the contracts under controversy; that one John M. Bransfield owned 44 of the 50 shares of the capital stock of appellee; that from a financial statement, submitted to the State department, by the appellee, it had available assets of $294,487.33 for public contract work; that in response to the invitation of the State department, appellee submitted an experience questionnaire showing that during the years 1929 to 1933, both inclusive, appellee had performed in said county of Cook paving and similar contracts in the total amount of $2,294,930.36 and that all of said work was performed to the entire satisfaction of the public authorities; that on October 14,1933, said department of public works and buildings sent to appellee a letter, signed by the chief state highway engineer, stating that appellee was qualified to handle contracts to the amount of $1,963,000, and that appellee had been placed on the approved contractors’ list of said State department as eligible to receive contracts up to said amount; that the appellee is prepared to prove that it has all the qualifications, financial, by way of equipment, experience, organization, help and employees, to perform each and all of the three contracts involved herein and that appellants are not prepared to offer any evidence to the contrary; that appellee was the lowest responsible bidder for the three paving contracts involved herein unless the pendency of the indictment would operate to prevent it from being so regarded; that on December 29, 1933, the grand jury of Cook county returned an indictment against said John M. Bransfield, charging him and various other defendants with conspiring to hinder and prevent persons engaged in the business of trucking and hauling coal in the City of Chicago, from carrying on their business unless such persons would pay to said defendants and to a certain organization known as the trucking and transportation exchange various sums of money; that said indictment was then still pending and undisposed of in the criminal court of Cook county; that John M. Bransfield had entered a plea of not guilty to said indictment and would testify if called that he is not guilty of said charges. It was further stipulated that the court should take and determine the case upon the allegations and admissions of the pleadings and the stipulation.

The judgment of the court below was against the appellants and directed them to approve the three contracts described in the judgment order.

It is contended first by the appellants that the appellee has failed to allege or prove facts sufficient to entitle it to a writ of mandamus. They insist that the duties and responsibilities of the department of public works and buildings in the approval of contracts is entirely discretionary and that a rejected bidder has no remedy for refusal of State authorities to award a contract to him. In support of their position appellants cite the cases of Hallett v. City of Elgin, 254 Ill. 343; Stubbs v. Aurora, 160 Ill. App. 351; Johnson v. Sanitary District, 163 Ill. 285, and other similar authorities. An examination of these cases show that they were suits filed to enjoin the letting of contracts to bidders higher .than the lowest bidder. In none of these cases was there any abuse of discretion disclosed on the part of the authorities in letting the contract. In each case there was a perfectly good reason assigned why the contract was not let to the lowest bidder, such as insufficient financial responsibility, performance of other public work in an unsatisfactory manner or other reasons upon which the public officials based their conclusion that the lowest bidder was not properly qualified to do the work. We believe that mandamus will not lie to control the exercise of a discretion where there is room for an honest difference of opinion but that it will lie to prevent a clear, abuse of discretion or to control a discretion exercised contrary to an applicable rule of law. Where there has been an unlawful denial of a clear duty on the part of a public official, the citizens to whom such right or duty is owing may secure its performance by the writ of mandamus. In the case of Dental Examiners v. People, 123 Ill. 227, the court said:

“If a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise. They will interfere where it is clearly shown that the discretion is abused. Such abuse of discretion will be controlled by mandamus. A public officer or inferior tribunal may be guilty of so gross an abuse of discretion or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined, or to act at all-in contemplation of law; in such a case mandamus will afford a remedy. ’ ’

In People v. Potts, 264 Ill. 522, where a petition was filed for the writ of mandamus to require the state insurance superintendent to authorize relators to incorporate under the so-called Surety Act, and stating that said respondent had announced his willingness to permit petitioners to incorporate under another statute known as the Casualty Act, but not under said Surety Act, the Supreme Court held that as a matter of law relators were entitled to incorporate under said Surety Act and stated:

“The proper construction of a statute, however, does not come within the reasoning of that class of cases. When the legislature has provided a law applicable to a case, it is the duty of the Court, when called upon, to see that such law is enforced. The duty is imposed upon appellee to determine whether or not any persons applying for a charter come, by their statement, within the purview of the act. In determining that question he is compelled to decide according to legal principles and construe the law. If he makes a mistake in so construing the law, mandamus will lie. ’ ’

A court will always hesitate to interfere with the discretionary powers of a public official and can only do so when there has been a clear abuse of such discretion. In this case the main reason assigned by appellants for refusing to approve the contracts was that John M. Bransfield, the chief stockholder of appellee corporation, was under indictment for conspiracy. Indeed, the stipulation of facts expressly admits that appellee possesses all the qualifications of the lowest responsible bidder upon the contracts, unless the single fact of the pendency of an indictment against one of its stockholders should prevent appellee from being so regarded. Disregarding the information contained in the motion to dismiss, that upon the trial of the conspiracy indictment in the criminal court of Cook county, the jury, acting under the direction of the trial judge, returned its verdict of “not guilty,” and that judgment was accordingly entered thereon, we feel that with the presumption of law that the stockholder was presumed to be innocent until proved guilty beyond all reasonable doubt, the refusal of the State department to award the contracts to the corporation was not only unfair and unjust but was the arbitrary action of such department. Such powers are not granted to public officials and where such discretionary power is exercised, with plain injustice, the courts are empowered to command its due exercise by mandamus.

We are not impressed with the point urged by appellants that this is a suit against the State of Illinois and is therefore forbidden by section 26 of Article 4 of the Constitution. In this State an action to compel a public official to perform a clear and mandatory duty is not a suit against the State. People v. Stevenson, 272 Ill. 215; People v. Jenkins, 322 Ill. 33.

Appellee, in addition to its briefs and arguments on the points raised by appellants, has also filed a motion to dismiss this appeal on the ground that since the o rendition of the judgment appealed from, the case has become moot because of the happening of the following events: the return of the verdict of not guilty in favor of John M. Bransfield in the conspiracy case and a judgment entered thereon; the approval of the contracts on May 8,1935, by the director of the department of public works and buildings in obedience to the writ of mandamus issued out of the office of the clerk of the circuit court of Sangamon county; the performance and completion of the contract for the Irving Park Boulevard improvement by appellee and its proceeding to near completion of both the Kedzie avenue and Eighty-seventh street contracts. Under these circumstances it seems that the controversy between appellants and appellee has been pretty definitely disposed of; however, because of the possible public interest that might be aroused we have discussed the case on its merits.

We are of the opinion that the judgment of the Sangamon county circuit court should be affirmed.

Affirmed.


author: Mr. Justice Fulton

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, Complainant, v. Farmers State Bank of Warsaw, Defendant. Harry Hill et al., Defendants in Error, v. William L. O’Connell, Receiver of Farmers State Bank of Warsaw, Plaintiff in Error.
    Gen. No. 8,937.
    Opinion filed January 17, 1936.
    Homeb H. Williams, of Carthage, for plaintiff in error.

      O’Harra, O’Harra & Roeth, of Carthage, for certain defendants in error.
   Mr. Justice Fulton

delivered the opinion of the court.

A suit was brought in the circuit court of Hancock county by the auditor of public accounts of the State of Illinois against the Farmers State Bank of Warsaw for the confirmation of the appointment of a receiver in connection with the winding up of the affairs of said bank, which had closed. An intervening petition was filed on behalf of James H. Adair and Elizabeth Adelia Adair seeking to establish a preference for a deposit in the said bank made by Harry and W. A. Hill, as executors under the last will and testament of Henry D. Hill, deceased.

No serious question arises from the pleadings filed in said cause. The question involved is, whether the Farmers State Bank of Warsaw, at the time of its closing, held the funds in controversy as trustee for the intervening petitioners. All of the facts are stipulated and are substantially as follows: Henry D. Hill, who died about August 30, 1918, by his last will and testament gave one-sixth part of his estate, after payment of the debts and certain specific legacies, to the children of a deceased daughter, Bertha Adair. The intervening petitioners and Mary Louise Adair Kersinski constituted the children of Bertha Adair. On or about October 10, 1918, Harry and William A. Hill qualified as executors. The will provided that the executors should hold back the shares of the children of Bertha Adair until they respectively became of age, and until that time to be kept at interest. The shares which the executors, under the will, held for the children of Bertha Adair amounted to approximately $3,300, which amount the executors invested in United States Liberty Bonds and placed the same in the Farmers State Bank of Warsaw for safekeeping. The interest on these Liberty Bonds, as collected, was deposited in savings account No. 935,to the'credit of Harry and W. A. Hill. The cashier and assistant cashier of the bank knew that Harry and W. A. Hill held said bonds, by virtue of and in accordance with the provisions of said will, for the children of Bertha Adair.

In 1929, Mary Louise Adair, now Kersinski, became of age. Prior thereto the bonds were sold by the Farmers State Bank of Warsaw for Harry and W. A. Hill and proceeds placed to their credit in the same savings account, No. 935. The amount derived from the sale of the bonds amounted to $3,216.95. The interest on the bonds and the interest on the savings account, paid by the Bank and deposited in said account, was the sum of $1,277.38. On December 5, 1929, Harry Hill and W. A. Hill made their settlement with Mary Louise Adair Kersinski and paid her the one-third part of the amount on deposit to their credit in savings account No. 935, leaving the balance in said account at interest where it remained until the closing of the Bank on May 5, 1930. Walter C. Van Pappelendam, who was first appointed receiver by the auditor of public accounts was later succeeded by William L. O ’Connell, the plaintiff in error, herein.

The case was tried by the circuit court upon this stipulation of facts and an order entered wherein the court found that Harry and W. A. Hill, as trustees, had no power to deposit this fund in a savings account in the Farmers State Bank of Warsaw and that the knowledge of the bank officers of the character of the fund constituted the bank a trustee for the intervening petitioners, allowing their claim as a preference in the amount of $2,847.24 and as common claim in the amount of $395.55, to be paid in the due course of administration. A writ of error was sued out of this court by the receiver, now plaintiff in error, to review the said order of the circuit court of Plancock county.

The plaintiff in error contends that the stipulation does not disclose any facts which show that the deposits, made by the executors, were contrary to law or in violation of any statute, covenants or order of court. They insist that the money was deposited in the savings account to the credit of Harry and W. A. Hill and that it was not the intention of the parties to create any relationship other than that of debtor and creditor and that the deposit so made constituted a general deposit and not a special deposit. The theory upon which the defendants in error seek to sustain the decree of the trial court is that there is an unlawful deposit of trust funds made by a trustee, with the knowledge of the bank, and that therefore the bank becomes a trustee ex maleficio of the funds. In support of this contention they rely upon the case of People v. State Bank of Maywood, 354 Ill. 519. In that case the village of Maywood sought to have its claim to certain funds, deposited by it in a closed bank preferred over the claims of other creditors on the ground that the funds were trust funds. In said case the village of Maywood had passed a valid ordinance requiring a bank to execute an indemnity bond to qualify as a depository for certain classes of village funds. The court held that the acceptance of the deposits by the bank, without complying with the terms of that ordinance with reference to supplying the indemnity bond, created it a trustee ex maleficio and the funds so deposited became trust funds. It was held in that case that the receipt of deposits without compliance with the ordinance with respect to the bond was an unlawful act. The action of the bank in that case was a clear violation of the terms of the ordinance and therefore unlawful. In this case there is nothing appearing in the stipulation of facts which shows the deposits made by Harry and W. A. Hill in the savings bank account to be unlawful. There was no statute prohibiting such deposit; it was not a violation of any ordinance or the order of any court and if it was not unlawful then they constituted merely general deposits. The case of Gits v. Foreman, 360 Ill. 461, seems applicable to the facts in this case; indeed, it seems to cover all the questions argued by counsel in their briefs. In that case a deposit was made on February 16,1930, in the name of the estate of Paulina Grits, a minor, by Valentine Grits, guardian. On June 24, 1932, the bank was closed and Foreman was appointed receiver. The deposit was made without any order of the probate court wherein the estate of the minor was pending. So far as the records disclosed, the deposit was made by the guardian, on her own responsibility, as was done by the trustees or the executors in the instant case. Upon the question as to whether the deposit was made special, merely because of the fact that it was made by a guardian, known to be such by the bank, the court said: “There is no presumption that a deposit by a guardian of his ward’s funds is a special deposit or trust fund as distinguished from a general deposit. The presumption is that a deposit in a bank is a general deposit, in the absence of an agreement to the contrary.” Citing People v. Home State Bank, 338 Ill. 179. The court clearly stated in that case that the question is not what relation the depositor or the fund bears to some third party but rather whether a trust relation is created between the bank and the depositor in connection with the fund. The opinion further used the following language:

“There must be .some obligation on the part of the bank, arising at the time these deposits were made, to treat them as a trust fund before the claimant may. take preference over other creditors. There can, in the nature of the transaction, be no obligation on the bank to inquire whether a deposit made by a guardian is to be a temporary one or more or less permanent, though the question of diligence of the guardian in seeking investment of Ms ward’s funds, or whether the deposit was, in fact, temporary, is one which is always open for consideration in the settlement of his accounts. Such a question, however, is not here.”

Defendants in error seek to distinguish the above case on the ground that the guardian there temporarily deposited the money awaiting the proper investment of the same. As above recited the deposit was made in the Gits case on February 17,1930, and the bank closed on June 24, 1932. In this case the proceeds from the sale of Liberty Bonds were deposited in the bank on September 15,1928. Mary Louise Adair Kersinski became of age in 1929 and on December 5, 1929, the executors paid Mary Louise Adair Kersinski her distributive share of the entire deposit. James H. Adair was rapidly approaching his majority at which time he would be entitled to his distributive share of the amount on deposit' and under these circumstances there are no facts which distinguish this case in principle from the Gits case.

It is our opinion that Harry and W. A. Hill, as executors or trustees, were guilty of no wrongdoing at the time of making the deposits and no trust arising out of their actions is here involved. They had the right to make the deposits and every presumption is in favor of a general deposit. To make a deposit special the bank must be made an agent or trustee rather than a debtor. We believe the trial court was in error in finding a preference in favor of the intervening petitioners and its decree should be reversed and the cause remanded with directions to the court below to find that the intervening petitioners are common claimants only and not entitled to a preference.

Reversed and remanded with directions.


text:
    S. S. Bradshaw, Appellant, v. Earl Grigsby, Administrator of the Estate of George F. Cadwell, Deceased, Appellee.
    Gen. No. 8,953.
    Opinion filed January 17, 1936.
    L. T. Graham, of Pittsfield, for appellant.
    William and Barry Mumford, of Pittsfield, for appellee.
    A. W. Schimmel, of Pittsfield, for certain creditors of the estate of George F. Cadwell, deceased.
   Mr. Justice Fulton

delivered the opinion of the court.

The appellant S. S. Bradshaw filed a claim against the estate of George F. Cadwell, deceased, on a time certificate of deposit in the sum of $12,500, issued to George F. Cadwell in his lifetime by the' Griggsville State Bank on November 14, 1931, and indorsed by George P. Cadwell, under the style of G. P. Cadwell, at the time it was issued. The claim was tried in the county court of Pike county and there denied. An appeal was taken by appellant to the circuit court where a trial was had before the court without a jury. The only pleadings consisted of the verified claim of the appellant and the verified answer of the administrator, the appellee here, denying delivery of the time certificate in question to appellant, or to anyone, for the purpose of creating any liability against Mr. Cadwell. Upon the hearing, the circuit court denied the claim and entered judgment in favor of the estate, from which judgment the appellant prosecutes this appeal.

Just prior to and at the time of the transaction in question, there were two banks operating in Griggsville, one the Griggsville State Bank and the other the Griggsville National Bank. Business conditions were not good and it was desired to consolidate the two banking institutions as a New National Bank. The plan was to take over the assets of the two institutions, together with their liabilities. A national bank examiner reported that the liquid assets of the Griggsville State Bank were not sufficient to support its deposits in the sum of approximately $50,000 and suggested that the Griggsville State Bank would have to in some way supply at least $25,000 of its deposit liabilities to be turned into time certificates. The testimony is supplied chiefly by one C. R. Howerton, cashier of the Griggsville State Bank, and discloses that in attempting to make up the $25,000 required, one depositor, by the name of Harvey Doane, was secured who was willing to take a time certificate for the sum of $12,500 upon which a waiver of payment would be accepted for a period of something like three years. Officers of the bank approached George F. Cadwell, during his lifetime and he was induced, by Howerton, the appellant, and other officers of the bank, to sell bonds belonging to him in sufficient amount to make the deposit of $12,500 in order to'aid the officials and the bank in completing the proposed consolidation.

. When it was proposed to Mr. Cadwell, by-the cashier Howerton, that he accept the time certificate of deposit, he stated that three years was too long a time for him to wait for his money and agreed to take the note for $12,500 from the appellant, who was president of the bank, one Kennedy who was vice president of same bank and one L. E. Newman, a director, as a guarantee of the deposit made by Cadwell. Accordingly, Cadwell made the deposit of $12,500 in the Griggsville State-Bank and took the note of the three officials to guarantee him payment for the same. The time certificate, for the sum of $12,500, was then issued in the name of George F. Cadwell and indorsed by him and then left with the cashier Howerton for the purpose of affecting the consolidation of the two banks. This plan was devised by the officials of the bank for the purpose of guaranteeing and protecting* Cadwell in the repayment of the $12,500 deposited by him and without any idea of holding Cadwell liable on account of his indorsement of the time certificate. Cadwell particularly stated that he did not care to hold the time certificate or the notes delivered by the Griggsville State Bank as collateral for the $12,500 deposited. He stated that he had no interest in either the certificate or the collateral notes and would look only to the note of the three officials to secure his deposit. He indorsed the certificate and signed a receipt for the collateral notes with the express intention only of aiding in the consolidation of the two banks.

The Griggsville State Bank closed its doors on December 31, 1931, and the consolidation was never completed. In February, 1932, the appellant voluntarily delivered up the collateral notes to the receiver of the closed bank and kept in his own custody the time certificate for $12,500, indorsed by Cadwell.

On February 27, 1932, the three officials who had executed and delivered their note to Cadwell for $12,500 entered into a contract with Cadwell, which provided, among other things, that the three officials above named were to give a new note to Beulah Cadwell, daughter of George F. Cadwell, to take the place of the old note, which had been given Cadwell at the time he advanced the $12,500 for the deposit in November, 1931. George F. Cadwell died in December, 1932, and subsequent to his death his daughter Beulah entered judgment on the note against the appellant and the other two officials. This judgment was settled by the three directors paying to Beulah Cadwell the sum of $8,000'. On February 14, 1934, this claim was filed by appellant against the estate of George F. Cadwell, deceased.

Appellant raises several propositions of law but from the evidence it appears clear to us that the purpose of the issuance and indorsement of the time certificate by Cadwell was in order to aid the officials of the Griggsville State Bank in completing the proposed consolidation of the two banks and in compliance with the demands of the national bank examiner. When the effort to consolidate failed the purpose for which the time certificate was issued and indorsed no longer existed and the effort of appellant in this case to charge the estate of George F. Cadwell with liability, because of his indorsement, constituted a diversion from the original purpose for which the certificate was issued. The indorsement was wholly without consideration and no liability was created against George F. Cadwell as the indorser. In the case of Peabody v. Munson, 211 Ill. 324, the court said: “The rule is well settled that a valid consideration is necessary to support the liability of an endorser of a negotiable note, and it is also the rule that as between an endorsee and his immediate endorser the consideration for the endorsement is always open to oral inquiry. ’ ’

The parol proof of the witness Howerton, cashier of the Griggsville State Bank, called as a witness in behalf of appellant, clearly shows there was no consideration to support a promise to pay by Cadwell as an indorser. In fact, Howerton was permitted to testify that at the time Mr. Cadwell indorsed the time certificate it never entered the minds of the officials -to hold Mr. Cadwell responsible for his indorsement on the time certificate.

In our judgment the appellant had no just claim against George F. Cadwell during his lifetime nor against his estate after his death. The judgment of the circuit court is affirmed."

Affirmed.


author: Mr. Presiding Justice McSurely

text:
      J. B. Nathanson, Appellee, v. John Hancock Mutual Life Insurance Company and William M. Houze, Appellants.
    Gen. No. 38,370.

      Opinion filed February 3, 1936.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellants ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    F. A. Gtariepy and Owen Rall, both of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit claiming certain commissions from defendant insurance company on account of policies secured by him, and also an item of $38 alleged to have been wrongfully retained by defendant William M. Houze; upon trial by the court plaintiff had judgment on both claims and defendants appeal.

As to the item of $38 retained by defendant Houze, defendants seek to justify this by showing that a creditor of plaintiff garnisheed defendants and that they were put to an expense of $38 to defend this proceeding, hence this amount was charged to plaintiff’s account. We know of no justification either on precedent or principle for charging this item against plaintiff’s account. Under certain circumstances judgment may be entered against the garnishee (Ill. State Bar Stats. 1935, par. 7, ch. 62, Garnishment Act), and the expenses of defending the garnishment proceeding were as much for the benefit of defendants as for the plaintiff. The trial court properly found that plaintiff was entitled to recover this item of $38.

Plaintiff claims certain commissions on the premiums on two policies issued by defendant and procured by him, — one called the Demont policy and the other the Courtwright policy.

Plaintiff was employed under a written contract in the form of a letter from defendants authorizing plaintiff to procure applications for life insurance in defendant company, and on policies issued pursuant to such applications plaintiff “will be allowed first year and renewal commissions on premiums on such policies, if actually collected and paid over to said Company.” Then follows an itemized list of the various kinds of policies with the rates of commission to be paid. Plaintiff claims a half year’s commission of $361.50 on the Demont policy. Defendant asserts that the half yearly premium on this policy was not “actually collected and paid over to said Company” and therefore plaintiff is entitled to no commissions on this policy.

In August, 1930, plaintiff sold for defendants an ordinary life insurance policy to Carl Demont for $60,000, carrying on annual premium charge of $1,417.80; Demont paid the premium for the first six months and plaintiff was paid his commission on this amount; Demont died March 2, 1931; a dispute arose as to whether he had committed suicide; if he died by suicide nothing would be due; suit was commenced on the policy and a compromise settlement of $35,300 was made, which amount was paid to the beneficiary in the policy. Defendant argues that this transaction shows that no premiums were collected and paid over to the company for this second six months’ period in which Demont died. The Demont policy contains a provision that in event of death the company will pay “the sum insured, less any indebtedness to the Company hereon, and less any unpaid balance of premium for the uncompleted policy year.” It might be added that this provision is substantially the same as contained in the present statute, chap. 73, par. 432 (16), subpar. 2.

Defendant argues that because there was a compromise settlement for less than the face amount of the policy this provision was not enforced, and that there is no evidence that the company deducted the unpaid balance of premium for the uncompleted policy year. We are of the opinion that it is self-evident that this was done. By paying the beneficiary in the policy any sum, whether the full amount or by compromise, the company acknowledged liability under a live policy, which could be alive only by virtue of the payment of the premium for the current period during which the liability occurred. Otherwise it must be considered that the company paid out a substantial sum without receiving the premium to which it was entitled. This is unthinkable. Just by what manner of bookkeeping this was accomplished is unimportant. It is sufficient to say that the company must have, in some way, collected the insurance premium for the second six months’ period. It should be noted that the contract does not require that the premiums on which plaintiff is entitled to a commission must be paid directly by the insured. In substance it includes such premiums as are accounted for in such a way that the company receives the benefit of them. We hold that the transaction sufficiently shows that the defendant company received the second six months’ premium on the Demont policy, and plaintiff is entitled to the commission thereon.

The second item has to do with the Courtwright policy. Plaintiff sold a life insurance policy in the defendant company to Courtwright in May, 1927; the policy contained a provision that for an increased amount of premium the insured might receive disability benefits, in which case the company waived premiums; this increased premium was paid by the insured, but in September, 1932, these premiums were waived as of July, 1930, pursuant to the disability provisions of the policy. Plaintiff claims that he is still entitled to commissions on the amount of premiums, although their payment from the insured has been waived. Defendant invokes the provision of the contract of employment and says that these premiums which were waived were not collected and paid over to the company, therefore plaintiff is not entitled to any commission on these waived premiums. We have here a question somewhat similar to that in the Demont instance. When the insurance company pays disability benefits and waives all premiums, how does the company provide for such benefits and for the compensation to itself in lieu of premiums paid by the insured? We again say that it must be self-evident that the company in some manner provides for such a situation.

The court permitted witnesses to testify that there was a custom existing in the life insurance business with reference to commisions paid to agents on premiums waived pursuant to a disability provision in the policy; that it is customary for insurance companies to set up a disability reserve fund from the excess premium paid by the assured for the disability benefit, and that when any one of the policyholders becomes disabled the premiums due under that policy are paid from that fund, and thus the insurance companies themselves keep the policy in force. This would be a very reasonable custom, and the credibility of the witnesses in this respect commends itself.

Counsel for defendant earnestly argue that it was improper to introduce any evidence as to custom in view of the asserted unambiguous language of the contract of employment. But it is evident that in a situation like that which arose in the Courtwright case, the question would at once arise as to how the company received compensation for paying disability benefits after the premiums were waived. To explain this by parol evidence is not to contradict or vary the terms of a written document but to explain the situation in accordance with the uniform custom of the business. The admission of parol evidence for this purpose has been approved. Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281; DeStefano v. Associated Fruit Co., 318 Ill. 345.

In Pick v. State Mut. Life Assur. Co., 272 Ill. App. 602 (Abst.), a claim was made by plaintiff for commissions on premiums the payment of which had been waived under the provisions of the policy. The court there said that the provision in the contract of employment that commissions would be paid “as the premiums were paid” included premiums when paid out of the disability reserve fund of the company after it had waived premium payments, just as much as if the premiums were paid directly by the insured. It was also held that the evidence as to custom was not presented for the purpose of contradicting the terms of the written contract but was admissible to explain the practice in insurance circles with reference to commissions on waived premiums, upon which the contract was silent, citing G-reenleaf on Evidence, 16th Ed., vol. 1, sec. 292. The opinion also restated the well known rule that if the contract is in anywise ambiguous or uncertain, all doubt should be resolved most strongly against the party who prepared the form of the contract, which in this case was the defendant insurance company. The opinion also makes this pertinent comment:

“It is difficult to assume that plaintiff, as agent, would undertake, or that defendant would expect him to undertake, to sell life insurance, commending as an additional and attractive feature of the policy the provisions for disability benefits and waiver of premium payments, with full knowledge on his part that the additional attractive features of the policy which he urged on his client would, in the event of disability, deprive plaintiff of renewal commissions which he would have received if that provision were not included in the policy. ’ ’

We hold that the court properly allowed plaintiff commissions on the Courtwright policy.

Defendant refers to the contract between defendant insurance company and the codefendant Houze, but plaintiff was not a party to this contract and there is no evidence that he knew its contents. The trial court properly, ruled that plaintiff was not bound by the restrictions and limitations contained in this contract.

We see no reason to disagree with the conclusion of the trial court and the judgments are affirmed.

Affirmed.

Matohett and O’Connor, JJ., concur.


author: Mr. Justice Matohett

text:
    Robert P. Burns, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 38,482.
    Opinion filed February 3, 1936.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Cummings & Wyman, of Chicago, for appellee ; Cecil R. Smith and Elmer C. Crags, both of Chicago, of counsel.
   Mr. Justice Matohett

delivered the opinion of the court.

This is an appeal by defendant from a judgment in the sum of $515 entered upon the finding of the court. The action was based upon two life insurance policies issued by defendant on the life of plaintiff’s mother, Mary A. Burns. The policies provided for the payment of double indemnity in case of death by accidental means. The evidence shows that the insured died December 8, 1933, while the policy was in force, as a result of a fall to the sidewalk from the window of an apartment in which she lived. Defendant paid the life indemnity but resists payment of the- accidental death benefit upon the theory that under the terms of the policy and upon the evidence submitted it is not liable therefor. The question was preserved for review by a motion of defendant at the close of all the evidence for a finding* in its favor, which was denied.

Defendant did not offer any evidence. That submitted by plaintiff tended to show that the insured was 63 years of age and resided with plaintiff, her son, and his wife, at 3034 Leland avenue, Chicago. The apartment in which they lived was on the second floor. The window in the front extended over the sidewalk; the distance from the sill of the window to the sidewalk was about 16 feet. Mrs. Josephine Burns, the daughter-in-law of deceased, testified that about six o’clock in the evening of December 8th, while preparing dinner, she saw insured going toward the bathroom and heard her say she “thought she had to vomit.” A few minutes thereafter she was informed that the body of insured was lying on the sidewalk in front of the apartment. The insured was unconscious, - her head was bleeding, there was froth or foam on her mouth. She was taken to the Edgewater hospital where she died on the same day. She was attended by Dr. Howell, who-prior to her death was her physician and who testified that the bones of the skull of deceased were apparently crushed; that the injury was over the parietal occipital region of the head, and that the insured died from this crushing injury. There was no other medical testimony. Mrs. Burns testified that at times insured would lose control when she stooped over to pick up things. The witness had seen her fall over on several occasions.

Dr. Howell testified that he last saw insured prior to her death on October 13, 1933, when she visited his office; she then complained of paranesthesia of the left arm and leg, of headaches and of lightheadedness; he diagnosed the complaint as general arteriosclerosis and hypertension, the first of which means a general hardening of the arteries throughout the body, and the second an increase in blood pressure caused thereby. The doctor suggested that insured probably had a dizzy spell, might have raised the window for air, and in doing so pitched forward; he said high blood pressure increased the heart action, and when a patient was thus afflicted bending over would tend to send the blood to the head and that this might cause a fall.

The pertinent provision of the policies is as follows:

“Upon receipt of due proof that the insured . . . has sustained, after the date of this' policy, bodily injuries solely through external violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured within ninety days from the date of such bodily injuries . . . the company will pay in addition to any other sums due under this policy and subject to the provisions of this policy an accidental death benefit equal to the face amount of the insurance then payable at death. . . .

“No accidental death benefit will be paid if the death of the insured is the result of self-destruction, whether sane or insane, nor if death is caused by or contributed to, directly or indirectly, or wholly or partially, by disease or by bodily or mental infirmity . ...”

The contention of defendant is that plaintiff failed to maintain the burden of proof in that he failed to show, first, that the means by which plaintiff met her death was accidental in nature, and, second, that her death was not contributed to directly or indirectly by any disease or bodily infirmity. Defendant says that plaintiff alleged that the insured met her death by accidental means and not as a result of suicide; that it was necessary to allege this fact in order to bring the case within this provision of the policy sued upon— “No accidental death benefit will be paid if the death of the insured is the result of self-destruction . . . .” Defendant says that there is absolutely no proof whatever that the death of the insured did not result from suicide, and'the inferences which may be drawn from the evidence are that she either jumped or fell from, the window, and that in either case defendant is not liable. Defendant also says that its contention is that the death of the insured was contributed to by her disease; that is, that her high blood pressure caused her to fall out of the window, and that the fall resulted in her death. It is pointed out that plaintiff has the burden of proof; that it was incumbent upon him to prove that the death of the insured came within the provisions; that he failed to do this. Defendant says it was necessary for plaintiff to prove that insured sustained bodily injuries- solely through external, violent and accidental means, resulting in her death; that if her injuries were contributed to by disease, they were not caused solely through external, violent and accidental means; that as there was no eyewitness, what happened between the time insured walked to the front of the apartment and when she was found on the sidewalk unconscious, must be supplied by inference; that in order for plaintiff to recover, it is necessary to infer, first, that the insured fell out of the window solely through accidental means, and, second, that her fall was not contributed to in any way by her dizziness or high blood pressure; that such reasoning requires the basing of an inference on an inference, or a presumption on a presumption, which the courts have held in numerous decisions not to be permissible. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625; Rumbold v. Supreme Council Royal League, 206 Ill. 513; Brown v. Maryland Casualty Co., 55 F. (2d) 159, are cited and relied on. Those cases are, however, distinguishable. See Burns v. Prudential Ins. Co. of America, 283 Ill. App. 442; Wigmore on Evidence, 2nd Ed., sec. 41; Sturm v. Employers’ Liability Assur. Corp., 212 Ill. App. 354; Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96; 14 N. C. C. A. 224.

We think there was evidence from which the court could reasonably find that the means of death were accidental, not intentional. There is, in the first place, the presumption of law against self-destruction. This was pointed out in the Sturm case and has been mentioned in practically every case where the question of self-destruction has been in issue. The circumstantial evidence here, while not as full as it might have been, tends to show an absence of any will for self-destruction on the part of insured and, on the contrary, a will on her part to live. The mere fact that insured consulted a physician is a circumstance from which such inference may be fairly drawn. There is not a scintilla of evidence to the contrary. In Fidelity & Casualty Co. v. Weise, 182 Ill. 496, our Supreme Court said that while the presumption was only one of law, it might be sufficient prima facie to establish the fact that death occurred otherwise than by self-destruction and to require the production by defendant of evidence tending to show the contrary. In Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205, the court said that while the burden of proof was on plaintiff to show that the injuries were accidental and not self-inflicted, this could be proved by circumstantial evidence, and that in connection therewith plaintiff could invoke the presumption that men do not ordinarily desire to die, creating an issue for the jury.

In the quite recent case of Anderson v. Inter-State Business Men’s Accident Ass’n, 354 Ill. 538, the Supreme Court said:

“Where the insured suffers an injury which causes death and there is no proof in the record from which it can be determined whether the injury was accidental or self-inflicted, the presumption is that the injury was accidental and not self-inflicted.”

We hold that there was evidence from which the court could reasonably find that the fall of deceased from the window was not intentional, was not voluntary, and therefore was accidental within the meaning of this provision of the policy.

Defendant undertakes to distinguish between the accident itself and the means whereby it was brought about, citing Landress v. Phoenix Mut. Life Ins. Co., 291 U. S. 491, 78 L. Ed. 934. ' The issue in that case was whether the death of the insured as a result of sunstroke was under the circumstances brought- about by accidental means, and the court, undertaking to distinguish between the means and the accident, held that it was not. Cardozo, J., dissenting, warned: The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.” The prophecy seems well on the way toward fulfillment. Donohue v. Washington Nat. Ins. Co., 259 Ky. 611, 82 S. W. (2d) 780; Provident Life Accident Ins. Co. v. Green, 172 Okla. 591, 46 P. (2d) 372; Griswold v. Metropolitan Life Ins. Co., — Vt. —, 180 Atl. 649.

Under the law and the evidence, we think the court could reasonably find that insured met her death ‘ ‘ solely through external, violent and accidental means,” within the meaning of the insurance policy.

The second question arising on the record is whether the death of insured was caused by or contributed to directly or indirectly, or wholly or partially, by disease or by bodily or mental infirmity; in other words, whether within the meaning of the law, disease or bodily or mental infirmity can be said to have been a contributing cause to the death of insured. The cases, as we understand them, are to the effect that under similar circumstances it could not be reasonably found that any bodily disease or mental infirmity of the insured was a contributing cause. To that effect are Winspear v. Accident Ins. Co., 6 Q. B. D. 42, where the insured was seized with an apoplectic fit, fell into a stream and was drowned, and defendant was held liable; Lawrence v. Accidental Ins. Co., 7 Q. B. D. 216, where the insured while standing on the platform of a railway station was suddenly taken with a fit and fell in front of a moving locomotive and was killed, and the company held liable; Freeman v. Mercantile Mut. Accident Ass’n, 156 Mass. 351, 30 N. E. 1013, where the insured died from peritonitis brought about as the result of a fall; Bohaker v. Travelers’ Ins. Co., 215 Mass. 32, where the insured being delirious from typhoid fever was momentarily left alone by his nurse and in her absence fell from a window to the ground, receiving injuries from which he died, and the question as to whether the disease or accident caused his death was held to be for the jury; Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 Fed. 945, where the evidence tended to show that the insured while suffering from a defective heart and while fishing in a brook fell into it and was drowned, and the question of whether the disease contributed to his death was held to be for the jury.

These cases were all decided upon the theory that the maxim, Causa próxima non remota spectatur, was applicable. In Lawrence v. Accidental Ins. Co., 7 Q. B. D. 216, the opinion quotes with approval Lord Bacon’s maxim, “It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause.”

This court in Sturm v. Employers’ Liability Assurance Corp., 212 Ill. App. 354, a case which cannot be distinguished from this one, follows and approves the foregoing cases. In that case the policy defined injury to mean “bodily injuries sustained during the term of this policy, solely and independently of all other causes through external, violent and accidental means.” The evidence showed that insured died in the bathtub of his home in Chicago, and the issue of fact was whether his death was from accidental drowning or disease. There was no eyewitness. The evidence as to the manner of his death was wholly circumstantial. The insured was past 67 years of age, somewhat corpulent and full-blooded. In the 15 ■ months prior to his death he had suffered from two attacks of facial erysipelas but from no other illness. The morning of his death insured went to the bathroom, turned on the water, went out to the hall and got some towels; he then got into the bathtub. His wife went to the bathroom, saw him sitting in the tub, which was half full of water; while the water ran he lathered his face preparatory to shaving; she left, telling him she would get breakfast, which she then prepared, and insured not appearing as soon as expected, she went into the bathroom where she found him dead, the tub being full of water; the body was entirely under water, the knees up and the head leaned “forward on his chin”; the •water was a foot deep over his head; the face was unshaven; the safety razor was at the bottom of the bathtub; there was no hair or soap on the blade. A doctor summoned tried artificial respiration without result; a dark colored liquid came from the mouth and a latherlike sputum from the corners of the mouth. A post mortem disclosed arteriosclerosis of the brain, in the arch of the aorta and of the valves of the heart; there were fatty changes in the liver, the kidneys were diseased with chronic interstitial nephritis and with cystic degeneration. There was medical opinion to the effect that deceased did not come to his death by drowning, and that the cause of death was chronic myocarditis complicated by chronic nephritis. There was also some medical evidence tending to show that the death was by drowning. Instructions stating the law to be that if disease contributed to the death of the insured plaintiff could not recover were offered and refused. The court, affirming the judgment for plaintiff, said:

“In view of the facts in this case, such instructions were inapt. Even though the insured were diseased and his abnormal condition led to his falling into the water and being drowned — and so in a sense contributed to his death — it is not the law that that contribution of disease to his death would prevent the plaintiff from recovering. The law distinguishes between so-called successive causes as between successive physical conditions; and the proximate excludes the more remote. If the deceased came to his death by drowning then, legally, that was the sole cause of his death. Bohaker v. Travelers’ Ins. Co., 215 Mass. 32; Manufacturers’ Accident Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945; Lawrence v. Accidental Ins. Co., L. R. 7 Q. B. Div. 216; Winspear v. Accident Ins. Co., L. R. 6 Q. B. Div. 42.”

Defendant relies much on the cases of Moore v. Illinois Commercial Men’s Ass’n, 166 Ill. App. 38, and Illinois Commercial Men’s Ass’n v. Parks, 179 Fed. 794. In the Moore case the insured was found on the floor of his hotel room completely paralyzed and he died within an hour thereafter. An examination of the body externally did not disclose any injury. An autopsy disclosed a blood clot at the base of the brain, but the exact spot of the lesion which caused the hemorrhage was not found. In the trial court there was a verdict for defendant on which judgment was entered, which was affirmed on appeal. The uncontradicted evidence showed that insured came to his death as a result alone of the disease rather than any accidental cause.

In Illinois Commercial Men’s Ass’n v. Parks (as in the Moore case) the court was required to construe a by-law which provided for non-liability for any injury which should ‘ ‘ occur as the result, wholly or partially, directly or indirectly,” on account of disease or bodily or mental infirmity, etc. The opinion states that the burden of proof was upon plaintiff to show not only that the death which ensued was accidental but also that the accidental injury was the sole cause of death, independently of any pre-existing disease or bodily infirmity as a contributing cause, and the court said:

“We are of opinion, therefore, that the ultimate issue of liability under this contract, in the event of a finding of accidental injury, is not whether such injury was the proximate cause of death, but whether it was the efficient cause, without the intervention of pre-existing disease or bodily infirmity as a co-operative cause of death — within the extended line of authorities cited under analogous provisions, whereof the following are deemed sufficient examples: National Masonic Acc. Ass’n v. Shryock, 73 Fed. 774, 775, 20 C. C. A. 3; Commercial Trav. Mut. Acc. Ass’n v. Fulton, 79 Fed. 423, 426, 430, 24 C. C. A. 654; Sharpe v. Com. Trav. Mut. Acc. Ass’n, 139 Ind. 92, 93, 95, 37 N. E. 353; Binder v. National Masonic Acc. Ass’n, 127 Iowa, 25, 102 N. W. 190, 194; White v. Standard Life & Acc. Ins. Co., 95 Minn. 77, 103 N. W. 735, 736, 884.”

In that case the insured fell on the sidewalk, striking the corner of an iron hitching post, and death ensued in a few minutes; an autopsy disclosed a diseased condition of heart and kidneys, and there was conflicting medical testimony as to the cause of death. That question was, under the circumstances of the case, held to be a question for the jury, and because of an instruction inconsistent therewith the judgment was reversed and the cause remanded. Under either line of cases we think that here the question of ultimate liability was one of fact, and that the finding of the court must be regarded as conclusive. Indeed, we are inclined to the opinion that under the uncontradicted evidence here, it cannot be said that there is any proof from which the court could reasonably find that disease or bodily or mental infirmity was either an “immediate” or “cooperative” cause of the death of the insured. The means of death being accidental and the death being the immediate result of these accidental means, the accident was the legal cause of death and plaintiff is entitled to recover. The judgment is therefore af- x firmed.

Affirmed.

McSurely, P. J., concurs.

O’Connor, J., specially concurring: I agree with the result for the reasons stated in the Parks case.


author: Mr. Justice O’Connor

text:
    Robert P. Burns, Individually and Robert P. Burns as Administrator of the Estate of Mary A. Burns, Deceased, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 38,483.
    Opinion filed February 3, 1936.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Cummings & Wyman, of Chicago, for .appellee; Cecil R. Smith and Elmer C. Gtrage, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit on two life insurance policies issued by defendant on the life of Mary A. Burns, one for $265 and the other for $215. Each policy contained a provision known as the “Double Indemnity” provision. The face amount of each policy was paid but defendant denied that it was liable under the double indemnity provision, and this suit was brought. There was a trial before the court without a jury, and a finding and judgment in plaintiff’s favor for $480, the amount of his claim, and defendant appeals.

The record discloses that the insured, Mary A. Burns, 63 years of age, resided with her son and daughter-in-law in a second floor apartment in Chicago. The building abuts upon the sidewalk and there is a front window in the apartment, 16 feet from the sidewalk. About six o’clock in the evening of December 8, 1933, the daughter-in-law was preparing dinner and she saw the insured, who said she “thought she had to vomit,” go into the bathroom. Apparently shortly thereafter the daughter-in-law saw her leaving the bathroom, and after a short time someone rapped on the door of the apartment and told her that her mother-in-law had been found on the sidewalk in front of the apartment. Her head was bloody and there was froth or foam on her mouth; she was taken to the hospital where she died about an hour after the accident.

The evidence further shows that during the year prior to her death a doctor called several times to see the insured; that she had headaches and dizzy spells; that “if she stooped to pick up anything she would tip right over.” The doctor told her she should be careful and not overdo. The daughter-in-law testified she saw her bend over and fall on a number of occasions.

Dr. Howell, the family physician, testified that he had known Mrs. Burns for about seven or eight years; that the last time he treated her was on October 13, 1933, at his office and that she was complaining of “para-anesthesia of the left arm and leg and a feeling of lightheadedness and headache”; that at that time he gave her a general physical examination; that she complained of being lightheaded and dizzy; that he concluded she was suffering from arteriosclerosis and hypertension; that the former means hardening of the arteries and the latter an increase in blood pressure caused by hardening of the arteries; that he saw Mrs. Burns about 6:30 o’clock the evening of the accident and that she expired about a half hour afterward ; that a year before she died he treated her about three times; that Mrs. Burns may have had one of her dizzy spells and in getting air from the window she may have pitched forward, and that in his opinion she died from a crushing injury to her head.

The pertinent provisions of the policy are, “Upon receipt of due proof that the Insured . . . has sustained bodily injury, solely through external, violent and accidental means, . . • . resulting in the death of the Insured . . . [the Insurance company] will pay in addition to any other sums due under the Policy ... an Accidental Death Benefit equal to the face amount of insurance. . . .

“No Accidental Death Benefit will be paid if the death of the Insured resulted from suicide. ’ ’

The sole contention made by defendant as to why the judgment should be reversed, as stated by its counsel, is, “The plaintiff failed to prove that the death of the insured was the result of accidental means and not contributed to by her disease and therefore is not entitled to recover.” On the other hand, counsel for plaintiff says, “The plaintiff has proved that the death of the insured was the result of an accident , which was of such nature that it caused death, regardless of any diseased condition which may have been present,” and therefore the judgment should be affirmed.

Counsel for defendant, in support of their contention as above stated, say, ‘ ‘ The question is not whether a fall caused the injury which in turn was the cause of her death, but whether the fall was solely the result of accidental means and was not contributed to by disease. However, the plaintiff did not introduce any evidence as to the reason for the fall, except the evidence of her disease.” We are unable to agree with this argument. The provision of the policy above quoted does not provide that no recovery can be had if the assured’s death was “contributed to by disease. ’ ’ There is no such limitation in the policy.

The question for decision is whether the insured’s death resulted “solely through external, violent and accidental means.” That her death resulted “solely through external and violent” means is undisputed and under the evidence the presumption is that the insured did not commit suicide. Anderson v. Interstate Accident Ass’n, 354 Ill. 538. Therefore, it follows that the assured died as the result of an accident in falling to the sidewalk.

Counsel for defendant say that, “In order for the plaintiff to recover it is necessary to infer first, that the insured fell out of the window solely through external, violent and accidental means; and, second, that her fall was not contributed to in any way by her dizziness or high blood pressure. To claim that the evidence shows this is basing an inference on an inference, or a presumption upon a presumption, which has been repeatedly held by our courts to be inadmissible. ’ ’

There are cases that seem to sustain counsel’s contention that it is contrary to the law to base an inference on an inference; but we think that is not the law. Sec. 41, Wigmore on Evidence, 2nd Ed.; Sturm v. Employers’ Liability Assur. Corp., 212 Ill. App. 354.

In Wigmore on Evidence, the author in the section cited, says: “It was once suggested that ‘an inference upon an inference’ will not be permitted, i. e., that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by a few Courts, and sometimes actually enforced. There is no such rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant’s gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased.' Or, the defendant is shown to have been sharpening a knife; from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet no Court ever thought of forbidding it. All departments of reasoning, all scientific work, every day’s life and every day’s trials, proceed upon such data. The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon.”

In the Sturm case (212 Ill. App. 354) we said (p. 363): “If any one or more of those inferences is doubtful, the ultimate is doubtful. Of course, an inference from an inference, and then a third and fourth may, under certain circumstances, be admissible (Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96) [14 F. C. C. A. 224], bnt the more remote the inference the more enfeebled its probative force.”

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

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


text:
    Edwin C. Price Company, Appellee, v. Ruggles and Rademaker Salt Company, Appellant.
    Gen. No. 38,462.
    Opinion filed February 3, 1936.
    Rehearing denied February 17, 1936.
    Stearns & Jones, of Chicago, for appellant; Lloyd M. McBride, of Chicago, of counsel.
    Wetten, Pegler & Dale, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Edwin C. Price Company, a corporation, brought suit against the defendant, Ruggles & Rademaker Salt Company, a corporation, to recover commissions claimed to have been earned by plaintiff in procuring two contracts for the defendant for the sale of salt by defendant, one to Armour & Co., and the other to Swift & Co. Plaintiff’s claim seems to be based upon ■ an oral contract entered into by it and defendant whereby defendant agreed to pay plaintiff for procuring the two contracts. Defendant denied it had entered into any such contract with plaintiff and denied plaintiff had procured the two contracts. Defendant admitted it had entered into two contracts for the sale of salt, the one with Armour & Co. and the other with Swift & Co.; that it had paid plaintiff certain commissions on part of the salt delivered under these two contracts, but contended that such commissions were paid for services rendered by plaintiff to defendant from day to day as orders were received ' for delivery of salt from the Armour and Swift companies, but that such commissions were not paid for procuring the contracts because plaintiff had not, in fact, procured them. There was a trial before the ■ court without a jury, a finding and judgment in plaintiff’s favor for $8,562.43, and defendant appeals.

The record discloses that defendant was in business _ at Manistee, Michigan, in producing and selling salt; that plaintiff corporation was engaged in business in Chicago and represented defendant prior to the time in question in connection with defendant’s sale and delivery of salt to Armour & Co. and to Swift & Co., packers who conducted packing plants in Chicago and other cities. November 16, 1931, defendant entered into a contract with Swift & Co., whereby defendant agreed to sell and Swift & Co. to buy their entire requirements of salt, to be delivered as needed. The contract covered a period from January 1, 1932, to December 31, 1934. On December 28, 1931, defendant entered into another contract with Armour & Co., whereby defendant agreed to sell and Armour & Co. to buy certain quantities of salt covering a period from January 1, 1932, to December 31, 1934. Defendant delivered salt under the two contracts and about every two weeks for about 22 months, that is from about January 1, 1932, to October 31, 1933, paid plaintiff certain commissions, based on the quantity of salt delivered under the two contracts. October 27th defendant wrote plaintiff a letter stating that after October 31, 1933, “we will handle our stock yards business direct instead of through a broker,” and therefore would not need plaintiff’s services thereafter. The evidence further shows that for some of the salt delivered under the contracts plaintiff received no commission and does not claim any.

The evidence further shows that Edwin O. Price was president of plaintiff corporation; that he died in May, 1933; and it seems to be plaintiff’s position that plaintiff, through the efforts of its president, Mr. Price, succeeded in procuring the contracts with the Armour and Swift companies. There is evidence to the effect that Mr. Price negotiated with Swift and with Armour prior to the execution of the two contracts, and there is also evidence to the effect that other negotiations were carried on by a representative of defendant with representatives of Armour and Swift.

As we understand the record and the brief of plaintiff, plaintiff tried the case on the theory that what was said between Mr. Price, representing plaintiff, and the representatives of Armour and Swift, could not be shown on the trial because Mr. Price was dead at that time, and this view was somewhat the same as the view of counsel for defendant. Just why such conversations seem to have been thought inadmissible does not clearly appear, except- that when a question was asked of a witness, among- the objections made by counsel for plaintiff, one was that the question called for “a conversation with the deceased agent” and the court seemed to be of the opinion that this conversation would violate some statute. We know of no statute that would render such conversation inadmissible. Plaintiff’s position was that the two contracts had been obtained by it through the efforts of its president, Mr. Price. In these circumstances, obviously what was said and done by Mr. Price could be testified to by any witness who knew the facts.

Defendant’s position was that it had obtained the contracts through its own efforts and when it sought to show what a representative of it had said to a representative of Armour or Swift, the question was objected to because no representative of plaintiff was present. The objection was erroneously sustained. Since defendant’s position was that it had obtained the contracts through its own efforts, it would seem that some of these negotiations would take place when a representative of plaintiff was not present, and, of course, evidence of these conversations or transactions was entirely competent. Defendant’s counsel sought by questions to elicit some of these conversations, but upon objection he was not permitted to do so. He also offered proof of what he expected to show, but it was likewise excluded. "*

But counsel for plaintiff in their brief contend their objections were properly sustained because defendant’s questions were leading, suggestive, and called for conclusions of the witnesses. Some of the questions were subject to these technical objections; others were not. Most of thefe objections were highly technical and should have been brushed aside by the trial judge. The purpose of all trials is to bring out the facts so as to enable the court to determine the truth of the matter in controversy, and such objections ought not to be the means of preventing the court from ascertaining what was said and done by the parties; especially is this so where there was no jury, as in the instant case.

There was a sharp conflict between the parties as to whether plaintiff had procured the execution of the two contracts and whether defendant had orally agreed to pay plaintiff commissions for procuring them. And the defendant sought to show that under prior dealings between the parties, of a similar character to the transaction here involved, defendant had paid plaintiff commissions as it had done under the two contracts in question. This evidence was erroneously excluded by the court. As we stated in Standard Brewery v. Healy, 209 Ill. App. 272, 276: “The law is that whenever there is a conflict in the evidence relevant to the issue, evidence of collateral facts which have a direct tendency to show that the evidence of the one side is more reasonable and therefore more credible than that of the opposite side is admissible. Glassberg v. Olson, 89 Minn. 195; Barney v. Fuller, 133 N. Y. 605; Cochrane v. West Duluth Industrial Const. & Imp. Co., 64 Minn. 369; Dodge v. Weill, 158 N. Y. 346; Home Ins. Co. v. Weide, 78 U. S. 438; Chicago Gen. St. Ry. Co. v. Capek, 68 Ill. App. 500. It would be a narrow rule that would limit the evidence to an affirmation of the agreement on the one hand and a denial of it on the other.” See also par. 6, 16 Cyc. pp. 1118, 1119.

We think the evidence in the record is entirely too meager to enable the trial judge, and this court, to intelligently say what the facts of the matter in controversy are.

The judgment of the superior court of Cook county is reversed and the cause remanded, but since we are of opinion that defendant is not entirely without blame on account of the manner in which the case was tried, each party will be required to pay one-half of the costs in this court.

Reversed and remanded.-

McSurely, P. J., and Matchett, J., concur.