text:
    Robert T. Mulholland et al., Appellees, v. Thomas H. Landise and Unknown Owners, Appellants.
    Gen. No. 38,598.

      Opinion filed March 23, 1936.
    Thomas H. Landise and Ode Rankin, both of Chicago, for appellants; Ode Rankin, of counsel.
    Brenner & McBride, of Chicago, for appellees; Thomas G. McBride, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs filed a bill to foreclose a trust deed and made defendants thereto Thomas H. Landise (a judgment creditor of the grantors named in the trust deed who had perfected the lien of his judgment against the premises) and unknown owners. Landise answered, admitting the material averments of the bill as to the execution of the notes, trust deed, etc., but setting up by way of defense that Thomas Mulholland, deceased, plaintiffs’ predecessor in title, had filed a prior bill to foreclose the same trust deed and in that proceeding obtained jurisdiction of the parties; that a decree of foreclosure and sale was entered, and that the master sold the premises to Thomas Mulholland for $11,488.30; that the sale was approved by the court on May 3, 1933; tliat the premises were not redeemed, and a deed thereto was duly issued to the purchaser; that defendant was not made a party to the proceeding, notwithstanding his lien against the premises, and that by reason of this prior proceeding, the notes, trust deed, etc., were merged in the decree entered in that case and lost their legal existence; that plaintiffs could not maintain a second foreclosure against the same property for the same indebtedness; that plaintiffs, upon the expiration of the period of redemption, became vested with the fee simple title and could not in this suit foreclose against themselves.

Plaintiffs filed a motion in the nature of a demurrer to strike the answer as substantially insufficient in law in certain specified respects: because the right of plaintiffs to foreclose the trust deed was not affected by a former suit, to which defendant Landise was not a party and which was as to him a nullity; the right of defendant was only to redeem from the mortgage the principal debt, interest, taxes paid, and the costs of the suit at bar; defendant was bound by the mortgage but not by the decree of sale, and Thomas Mulholland lost no equity as against Landise in the former suit; plaintiffs were entitled- to the mortgage and its incidents by descent from Thomas Mulholland and became the equitable assignees of the mortgage, but the right of Landise to redeem was not thereby affected; plaintiffs, whose rights of lien and equity under the mortgage were prior to the right of redemption of Landise, had a right to foreclose the mortgage by the usual and ordinary process as against him until the debt was paid in full.

March 28, 1935, the court sustained the motion to strike the answer, and on May 18th, for failure of Landise to file an amended answer, entered his default. A decree finding that the sum of $17,085.30 was due on the mortgage was thereafter entered,, and upon default in paymeilt the master to whom the cause; had been referred sold the, premises to plaintiffs. The report of sale of the master showed a deficiency of $2,488.96, for which plaintiffs were given a lien on the rents pending the period of redemption.

Defendant Landise appeals, contending that plaintiffs’ remedy was not by a bill to foreclose but by way of a bill to compel defendant to redeem from the sale under the first foreclosure; that the right of an omitted lienor to redeem and the right of a purchaser at the sale to compel redemption are reciprocal rights recognized in equity which may be waived or completed, and that property cannot be twice subjected to the same debt. Defendant cites a number of cases in which under the circumstances existing in each of them, a party was granted leave to redeem by a court of equity. These cases are all clearly distinguishable from the instant case, in that in every one of them the person entitled to redeem appeared and' obtained a decree upon his own initiative, allowing him to make redemption by paying the debt, interest and costs within the time fixed, in default of which his bill was dismissed and he forever barred from his equity of redemption. As plaintiffs point out none of these cases was a bill to compel redemption, nor in any one of them was the decree prayed by a complainant who was in the position in which these plaintiffs appear to be. Indeed, plaintiffs assert that a bill to compel redemption is not known to equity practice, and they say that no such case can be found in the books. Defendant replies that a bill to foreclose a mortgage is in the nature of a bill to compel redemption. There is, however, a clear distinction between a bill to foreclose a mortgage, or any other lien, and a bill to obtain or compel the exercise of the right of redemption, and this distinction is recognized in the cases cited by defendant, namely, Harper v. Ely, 70 Ill. 581; Decker v. Patton, 120 Ill. 464; Bremer v. Calumet & Chicago Canal & Dock Co., 127 Ill. 464; Chicago & Calumet Rolling Mill Co. v. Scully, 141 Ill. 408.

In Decker v. Patton, Decker, who had a subordinate interest in the premises, had not been made a party to the suit to foreclose. The property was sold, and complainant Patton purchased it. Decker then filed a bill to redeem. The decree found that Decker should be allowed to redeem upon paying a certain amount found due; that in default of such payment within the time specified, the bill would be dismissed and he barred from all equity of redemption. Decker sued out his writ and argued error in that the decree did not direct a sale of the premises. The Supreme Court' said that the time allowed was quite liberal, and that unless the law imperatively demanded a resale in case of default, no good reason existed for the insertion of such a provision in the decree. The opinion says:

“But it is said in the argument, that the property was worth more than the mortgage debt, and if there were judgment creditors, it was erroneous to decree a strict foreclosure. Had this been a bill to foreclose a mortgage, and had a decree been rendered cutting off the rights of parties in interest, without a sale of the mortgaged premises, and denying the redemption provided by the statute, there might be force in the argument. But such was not the case. . . . The decree which was rendered in this case may, and probably does, cut off all equities and rights of Decker in case he fails to redeem within the time prescribed by the decree, but that does not render it a strict foreclosure decree, as contended by counsel for plaintiff in error. On the other hand, it is an ordinary decree on bill to redeem.”

In support of his contention that plaintiffs could maintain a bill in this suit to compel redemption, defendant cites Rose v. Walk, 149 Ill. 60. In that case a bill was filed to foreclose a junior mortgage against purchasers at a foreclosure sale under a senior mortgage. Complainants did not offer to redeem; they averred that they had not been made defendants to the foreclosure of the senior mortgage. They claimed the right to foreclose their mortgage subject to the lien of the senior mortgage because they were not bound by that decree, not being parties to the proceedings, but the court drew a distinction between the foreclosure of a second mortgage before and after the foreclosure of the first, holding that after the foreclosure and sale under the first mortgage, “the interest theretofore existing under the senior mortgage and the equity of redemption are merged, and the grantee in such conveyance takes the fee subject only to an equitable right of redemption in junior incumbrancers who were not parties to the decree of foreclosure.” The court added: “Nothing remained in such junior mortgagees except a right in equity to redeem, and, upon redemption, to subject the land to the lien of their mortgage. ’ ’

Defendant reasons that as by such proceeding there the junior incumbrancers lost their right to foreclose against those whose rights had been merged with those of the purchaser at the senior lien sale, the purchaser here lost his right to foreclose against the junior lienor’s right of redemption. The situations are not analogous, in that in the first case as against the junior lienor, nothing was left in the owner of the equity of redemption which could be made the subject of levy or appropriation; while here, as against the person taking title through the senior mortgage sale, there is outstanding a statutory right of redemption which must be foreclosed in some appropriate way in order to vest a clear title in the owner.

There are a number of cases where the nature of the right of the inferior lienor as against the purchaser has been considered. In Bradley v. Snyder, 14 Ill. 263, the court held the secondary lienor in the exercise of his right to redeem was bound by the mortgage and not by the sale, and in Walker v. Warner, 179 Ill. 16, the court held that a purchaser from a mortgagor, which purchaser had not been made a party to the foreclosure of the mortgage, merely succeeded to the rights of the mortgagor, and that the failure to make him a party did not affect the validity of the decree but left his right of redemption unimpaired; and that this right was an equitable one which it was necessary to assert in a court of equity.

In Rodman v. Quick, 211 Ill. 546, Quick, holder of the first mortgage, foreclosed, failing to make the trustee of a second and inferior mortgage a party. There Avas a decree of sale, and the holder of the second mortgage filed a bill to redeem from the Quick mortgage. The court said:

“Where the foreclosure proceedings are irregular for the want of proper parties and the mortgagee purchases at the sale, it amounts to no more, so far as relates to the rights of persons not made parties, than an entry for condition broken, and if a stranger to the proceedings and mortgage becomes a purchaser, he will, as to those not made parties and having an equity of redemption, take an equitable assignment of the mortgage. Jackson v. Bowen, 7 Cow. 13; Robinson v. Ryan, 25 N. Y. 320; Ten Eyck v. Casad, 15 Iowa, 524.”

In Odell v. Levy, 224 Ill. App. 345, one Eussell became the purchaser at the foreclosure sale held June 25, 1917. April 22, 1918, by supplemental bill certain minors Avho had been omitted (inadvertently) as defendants Avere brought in, and July 26, 1918, complainants procured a supplemental decree, making the original decree binding upon the omitted defendants Avith the exception that they Avere given until October 31, 1918, to redeem from the sale, the decree providing that upon failure to redeem Avithin that time they should be barred and the bill dismissed. This decree was reversed in Odell v. Levy, 307 Ill. 277. The Supreme Court said in substance that it was a rule of chancery practice that by filing an amended or supplemental bill all previous decretal orders were vacated and defendants had a right to answer; that such a bill made a new case, and defendants had a right to answer both the original and the supplemental bill. The court added:

“The relief sought by the supplemental bill was to make the decree of foreclosure already rendered, and the sale already made, binding on the plaintiffs in error (defendants). This could not be done. The decree included costs and a solicitor’s fee of $1,200, and these charges were included in the amount which plaintiffs in error would have been required to pay to prevent a sale. The plaintiffs in error had a right to redeem from the mortgage even after the decree- and after the sale, which were both void as to them, without paying any of the costs incurred in the foreclosure proceeding and this would be so if they had come into court as complainants, asking to be allowed .to redeem in equity. (Rodman v. Quick, supra.) Clearly the plaintiffs in error were entitled to redeem the premises, without regard to the void decree, by payment of the notes, with the interest, and so prevent a foreclosure or sale. Their liability could not be increased by a proceeding to foreclose the mortgage to which they were not parties. (Moore v. Kirby, 76 Wis. 273.) The court had no jurisdiction of the plaintiffs in error in the original suit, and the purchase price at the sale under the original decree could not be the measure of the amount required to redeem. (Bradley v. Snyder, 14 Ill. 263.) The plaintiffs in error are bound by the mortgage but not by the decree or sale. The statute secures to the mortgagor the right to redeem from a decree of foreclosure within 12 months after a sale under the decree, but the decree under review cuts off the right to redeem without any decree of foreclosure. The defendants in error had a right to foreclose their mortgage against the plaintiffs in error, but they could not make the plaintiffs in error parties to a decree of fore closure rendered in their absence and without an opportunity for a hearing. Their supplemental bill, if properly amended, may be sustained as a bill seeking original relief by the foreclosure of their mortgage, but as against the plaintiffs in error the original decree can be given no effect ivhatever.”

In Culver v. Lincoln Sav. & Bldg. Ass’n, 271 Ill. App. 91, the Appellate Court for the Third District had before it a case in which complainant (purchaser at a foreclosure sale) filed a bill against the holder of a subordinate lien against the premises who had inadvertently been omitted as a party to the foreclosure proceeding. The bill prayed the entry of a decree providing that if there was no redemption by the mortgagor or his assigns within 12 months from the foreclosure sale, the junior creditor should be allowed to redeem by paying either the amount of the mortgage indebtedness or the amount bid at the foreclosure sale within the limited time, and that in default of such redemption he should be foreclosed of all interest in the realty. The decree was entered as prayed. Upon appeal defendant contended that the sale under the foreclosure discharged the lien of the first mortgage; that complainant had no interest under which she could maintain her suit. The Appellate Court reviewed all the authorities, and while holding that complainant could maintain her suit, further held that defendant lienor could not be bound by the former decree in the foreclosure case. The court said:

“The decree in this cause, entered December 23, 1931, bound appellant by the results of the sale in the former case and found it was a beneficial sale in the ' interest of appellant. This was error.
“The decree further found that appellant should have the right to redeem within three months after May 27, 1932. This was error. Appellant should be decreed its full statutory time to redeem following a sale in this canse of action, and appellant should not be held to pay any of the costs of the former suit and proceeding. ’ ’

. The above cases set forth the law as it exists in Illinois and are, we think, controlling. However, in Parker v. Child 25 N. J. Eq. 41, a case decided in 1874, the Court of Errors and Appeals of Hew Jersey held that the purchaser under foreclosure of a first mortgage could file a bill to compel a second mortgagee, who had been omitted as a defendant to redeem from the sale or be foreclosed. The question there seems to have been considered without regard to any statutory right of redemption such as now exists in Illinois, and the question as to whether the remedy of complainant by such a bill was exclusive does not seem to have been considered.

Whatever the rule may be in any other State, we hold that plaintiff in such case is not, in Illinois, compelled to rely upon such remedy exclusively. The Illinois decisions above reviewed show that so far as defendant was concerned, the mortgage notes, etc., were not merged in the original foreclosure decree or destroyed by it. As to defendant, that decree was null and void. His lien by reason of his judgment was a property right of which under our statute he could not be deprived without a proceeding which would preserve to him his right to have the mortgage and indebtedness proved by competent testimony and assure to him his right of redemption. The usual method of determining these matters is by a bill to foreclose the mortgage. This defendant had not been foreclosed by the former proceeding because as to him it was a nullity. The method adopted by plaintiffs seems to preserve every possible right of defendant and to place upon him no unjust burden. Defendant cannot be permitted to assume inconsistent positions. He cannot be heard to say that the former decree of foreclosure is void and at the same time assert that the mortgage and indebtedness were merged in it. We do not doubt that defendant Landise, prior to the beginning of plaintiffs’ suit, might have filed a bill to redeem, or possibly in this suit he might have filed a counterclaim asking such relief. Ill. State Bar Stats. 1935, ch. 110, sec. 38, ¶ 166. He did not avail himself of his right in this respect. His position seems to be that plaintiffs’ only and exclusive remedy was to file a bill against him to compel him to do that which on his own volition he was entitled but failed to do. In view of the position defendant assumed, plaintiffs are in equity deemed to be, so far as defendant is concerned, equitable assignees of the first mortgage. It follows that plaintiffs could, as such owners and assignees, foreclose that mortgage as against any person holding a valid subordinate lien which had not been foreclosed. The method adopted protects every equitable and legal right of defendant.

The decree is affirmed.

Affirmed.

McSurely, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Chicago Title and Trust Company, Complainant. Appeal of Helen M. Neuffer, Intervening Petitioner, Appellant, v. Chicago Trust Company et al., Defendants. William H. Hess, Appellee.
    Gen. No. 38,564.

      Opinion filed March 23, 1936.
    Rehearing denied April 6, 1936.
    Ernest A. Eklund, of Chicago, for appellant; John N. Thornburn, of Chicago, of counsel.
    Randolph Bohrer, of Chicago, for appellee; Norman H. Arons and Milton J. Fink, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Chicago Title & Trust Co., a corporation, as trustee, filed its hill to foreclose a trust deed on certain premises. Afterward a decree of foreclosure was entered, the property sold and purchased by Helen M. Neuffer. A receiver had been appointed; he filed his final report; Helen M. Neuffer filed an intervening petition and objected. The Chicago Title & Trust Co., complainant, also filed objections to the receiver’s final report arid the matter was referred to a master in chancery. Evidence was introduced before the master; he made up his report, to which Neuffer, the Chicago Title & Trust Co. and the receiver each filed separate objections. They were overruled and after the filing of the report objections were ordered to stand as exceptions. August 20, 1935, an order or decree was entered sustaining the master except as to a few items; the decree found that the receiver had incurred a deficit of $3,090.64; he was given a lien on the premises and rents for that amount, and the court ordered that another receiver be appointed to manage the premises and collect the rents until the deficit was paid. Helen M. Neuffer, the intervening petitioner who objected to the receiver’s reports, as stated, alone prosecutes this appeal.

February 4, 1932, the receiver filed his first current report and account covering the period from the date of his appointment, April 17, 1931, to December 31, 1931, and on February 20, 1933, he filed his second current report and account covering the period from January 1, 1932, to December 31, 1932. October 12, 1933, the master issued his deed to Helen M. Neuffer, who had purchased the property at the foreclosure sale, and January 8, 1934, the receiver filed his final report and account, covering the period from January 1, 1933, to October 31, 1933. The receiver’s first and second current reports and accounts were approved. After the filing of the final report and account Helen M. Neuffer filed her objections to the firm! report; objections were also filed by the complainant, Chicago Title & Trust Co., trustee, and on February 21, 1934, an order was entered which recites that the final account of the receiver came on for hearing and “upon the objections of Helen M. Neuffer and the Stover Co., Inc., thereto,” it was ordered that the receiver’s report and the objections thereto of Neuffer and the Stover Co. be referred to Master Pollack and that “all costs of the above reference and the fees of the said Master in Chancery be, and the same are hereby assessed against William H. Hess.” And it was further ordered that Hess file a bond in the sum of $1,000 to secure the payment of the costs of reference. After the matter was partially heard before the master, the receiver by leave of court filed an amendment to his final account and report.

The record discloses there were 47 one- and two-room apartments in the building and that the receiver had employed Catherine Baker to take care of the details of the work in renting the apartments, collecting the rents and .making disbursements under his direction. She had been in charge of the building prior to the appointment of the present receiver, Hess, and seems to have been a woman of considerable experience who understood how to operate such a building. The evidence further shows that there was a great deal of shifting of tenants in the apartments; some of them did not pay their rent and there were a number of vacancies.

The master found that upon the appointment of Hess as receiver he ‘ retained the services of . . . Catherine Baker who had been managing the property . . . for the North Town State Bank, while it was acting as receiver, and prior thereto managed said building for . . . J. W. Dowd, the former owner” of the property; that “she was thoroughly familiar with practically every detail of management. Dowd testified that while he was the owner of the building he intrusted Miss Baker with all rent collections and found her entirely trustworthy.”

The master further found that one of the objections to the receiver’s report was that he should be charged with $1,704.15, being the amount of delinquent and unpaid rents from January 1st to September 21st, 1933. A number of former tenants were called and one of them testified that he had paid a balance of $85 claimed by the receiver, and another that she had paid her rent in full where the receiver claimed $50, and the master recommended that the sum of these two items, aggregating $135, be charged to the receiver.

Other objections made by the intervenor, Neuffer, are: (1) that the receiver in his final report showed an income received of $9,263.55, and during the hearing before the master he filed an amendment to his final report and account showing that he had received but $7,180.05; (2) that the receiver was given credit for $1,675.72 for money expended as shown by canceled checks which were not supported by invoices, and that $1,260.20 had been credited to the receiver for cash expended, for which there were no receipted bills and which was only supported by the affidavit of Catherine Baker; that the receiver should not have been allowed $348 for second-hand carpet purchased, and that the $800 which had theretofore been allowed the receiver on account of his services should be charged against him because he had not properly handled the building.

November 29, 1933, Catherine Baker made an affidavit that she had entire charge of the books and records of the building, collected the money, made necessary expenditures and deposited the balance in the bank to the receiver’s account. Attached to the affidavit was what purported to be a detailed statement showing the amount of uncollected rents from several tenants who occupied the premises. This affidavit states it was made to be filed by the receiver in support of his final accounting in connection with the proposed examination by a firm of certified public accountants which was contemplated. Catherine Baker was called as a witness by the objector Neuffer, and also by the receiver. She testified as to the method used by her in managing the building, in making rent collections, keeping her records and depositing money in the bank. A certified public accountant testified that he had audited the records and submitted his written audit, which was introduced before the master and is before us; that he was furnished with the report of occupancy of the building, canceled checks, bank statements, receipts, court orders, invoices and schedules, and gave a summary of what the audit showed. The audit consists of several typewritten pages of figures showing numerous items.

From a careful consideration of all the evidence in the record, and taking into consideration the fact that witnesses appeared and testified before the master, who made up his report, which was substantially approved by the chancellor, we are of opinion we would not be warranted in disturbing the order appealed from. The evidence shows that it was necessary to make cash disbursements from time to time for which no vouchers or receipts were obtained, and we think that in a great many instances it would have been unreasonable to expect vouchers and receipts. Miss Baker, who made these disbursements, was before the master and testified. The matter was apparently fully gone into, and we are unable to say that the master and the chancellor were wrong. We think the result was as nearly accurate as could be expected considering the nature of the building and the character of the tenants, together with the fact that the time in question was one of great financial depression, of which we take judicial notice. Straus v. Chicago Title & Trust Co., 273 Ill. App. 63; Atchison, T. & S. F. Ry. Co. v. United States, 284 U. S. 248. We think there was no error in receiving the testimony of the certified public accountant as to the result shown by his audit. The written audit was before the master, and, as we said in Hochschild v. Goddard Tool Co., 233 Ill. App. 56 (p. 61): “Where the original evidence in a transaction consists of numerous documents, books, papers or records which cannot be conveniently examined in court and the fact to be proved is the general result of an examination of such books, papers and records, any competent person who has examined the documents may give evidence as to such result, provided the result is capable of being ascertained by calculation. ’ ’

Nor do we think there was any error in the chancellor taxing the costs of the reference against the intervenor, hi euffer, although the order of reference provided that the costs of the reference should be taxed against the receiver, for the reason that upon the hearing of the matter the evidence showed that the objections to the master’s report were not well founded. We are also of opinion that we would not be warranted in disturbing the order appealed from wherein the court awarded the receiver, Hess, $800 which had theretofore been allowed to him, and finding that he was entitled to no further fees because the court, on the whole, found the receiver was entitled to this sum for the services he had rendered. And we think the evidence sustains the finding and judgment of the chancellor in this respect.

The intervenor, Neuffer, contends the court erred in decreeing the amount due and unpaid, $3,090.64, to be a lien upon the premises and the rents thereof, for the reason that she was the purchaser of the premises at the master’s sale under the foreclosure decree and was entitled to the property clear of all incumbrances. In support of this, counsel for the intervenor say: “It is inequitable that under such circumstances the mere contract creditors of the Receiver should be given a lien prior to the innocent purchaser at the Master’s sale.” The difficulty with this contention is that the chancellor found in the decree appealed from that “Helen M. Neuffer is the nominee of John C. Bowers and Edward M. Warner, as the Fidelity Bondholders’ Protective Committee; that William H. Hess was appointed receiver at the instance of said Bondholders’ Committee; that William H. Hess incurred, in the administration and preservation of the estate” the several items mentioned in the decree, aggregating $3,090.64. From this decree it appears that the intervenor, Neuffer, was not an innocent purchaser of the premises at the master’s sale, but on the contrary she bought in the property for the bondholders ’ committee. But counsel for the intervenor say that there is no evidence in the record to sustain the finding of the decree appealed from, “that either the Bondholders’ committee or the intervening petitioner secured the appointment of the receiver.” We have not the complete record before us. The proceedings in the foreclosure suit only partially appear. We must therefore assume that the chancellor, who had the entire case before him, was warranted in finding, as was done in the decree (from which we have above quoted) that the expenditures were properly made by the receiver in the “administration and preservation” of the property. The intervenor not being an innocent purchaser, but having bid in the property for the benefit of the bondholders, it was proper to decree that the amount of unpaid bills incurred in the preservation of the property be a lien on the property. Knickerbocker v. McKindley Coal Co., 172 Ill. 535.

The decree and order of the superior court of Cook county appealed from is affirmed.

Affirmed.

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


text:
    Maximino Galarza, Appellee, v. A. A. Sprague et al., Appellants.
    Gen. No. 38,595.

      Opinion filed March 23, 1936.
    Gardner, Foote, Morrow & Merrick, of Chicago, for appellants; Walter M. Fowler, of Chicago, of counsel.
    Harold L. Levy and Lawrence S. Jacobson, both of Chicago, for appellee; Lawrence S. Jacobson, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants for false arrest and malicious prosecution. There was a verdict and judgment in plaintiff’s favor for $1,000 and defendants appeal.

The record discloses that defendants are receivers of the Chicago, North Shore and Milwaukee Railroad Company, a corporation which maintains a railway station at the northwest corner of Broadway and Wilson avenue, Chicago. The station is used by the railroad company in the customary manner; certain parts of it are leased for business purposes.

On the afternoon of January 17, 1933, Maximino Galarza, also known as Max Dumont, went to the station to keep an appointment with a person he was to meet at the station. While waiting for this person to appear he met a friend and they talked to a young lady who was conducting a popcorn stand in the station for her employer. The friend left in about five minutes and plaintiff testified that he continued to talk to the young lady for about 25 minutes, when one of defendants’ employees in the station, McArdle, said to him, ‘ ‘ Can you get this girl a better job than she has now?”; that plaintiff thought the man who addressed him was the employer of the young lady and he apologized; that thereupon McArdle “ordered me out in a sharp tone of voice and I told him I resented his tone of voice; that I was no bum, and then he says, ‘If you don’t like it I will throw you in the can. ’ I said, ‘If you are such a big shot, go ahead. ’ Then an officer was coming in the place of business . . . and he called him over and I was taken into custody” by a police officer who gave plaintiff permission to go to his bank to see if he could get money for bail; finding the bank closed plaintiff went to a barber shop to see if he could get assistance and was then taken to the station and locked up until some time during the forenoon of the following day when, the evidence shows, he made bail and the case was continued and set for hearing on January 21st. When defendant was taken to the station on the 17th, McArdle signed a g-itasi-criminal complaint charging defendant with disorderly conduct in violation of sec. 4210 of the Revised Chicago Code of 1931, in that Dumont was ‘ ‘ annoying a woman. ’ ’ When the case came up on January 21st for hearing, the complaint was amended by the city prosecutor so as to charge that defendant “then and there wilfully and unlawfully engaged in a quarrel with this affiant, ’ ’ and the amended complaint was then sworn to by McArdle. At that time defendant was represented by counsel; lie waived his right to trial by jury, and witnesses were. sworn, some called by the city and some by defendant. At the conclusion of the hearing the court found defendant guilty and assessed a fine of $25. Defendant prayed an appeal which was allowed and the appeal bond was fixed at $100, bill of exceptions in 30 days. Afterward, on February 15, 1933, counsel for defendant served a notice on the city attorney that he would, on February 17th, at 9:30 o’clock in the morning, appear before Judge Edelman of the municipal court (who had tried the case) at the branch of the municipal court of Chicago to be held in the Town Hall located on the northwest side of the city, and ask that the judgment be vacated; that in support of the motion he would present defendant’s affidavit and the affidavit of the young lady in charge of the popcorn stand in the railway station. On February 17th an order was entered by the municipal court continuing defendant’s motion to February 20th, and the record discloses that on that day the municipal court entered the following order: “This cause coming on for hearing upon the motion of the defendant heretofore entered herein to vacate judgment of January 21st, 1933, and the Court being fully advised in the premises sustains said motion.

“This cause coming on in regular course for trial, the plaintiff though called in open Court comes not, and fails to prosecute this suit. Wherefore, for want of prosecution of this suit, it is ordered that said plaintiff be nonsuited, and that this suit be and it hereby is dismissed out of this Court, and that said defendant be and hereby is discharged. ’ ’

About seven months afterward plaintiff brought the instant suit to recover damages for false arrest and malicious prosecution.

The evidence shows that on the trial of the quasi-criminal charge of disorderly conduct in the municipal court on January 21, 1933, McArdle (who was employed by the receivers in the instant case as master at the Wilson avenue station), and Iverson' (who was also employed by the receivers as chief special agent) testified for the city in the prosecution of Galarza, or Dumont, as he was named in the complaint. Dumont testified in his own behalf, and the young lady in charge of the popcorn stand who was subpoenaed by Galarza or Dumont, was called by both sides and testified. At the conclusion of this evidence the municipal court found Dumont guilty and imposed a fine of $25.

The evidence further shows that when defendant’s motion to vacate the judgment in that case came on for hearing on February 17th and again on February 20'tli, neither McArdle, Iverson nor the young lady appeared. The uncontradicted evidence also is that neither McArdle nor Iverson was "notified or had any knowledge that defendant was to make such motion. And we think it also appears from the order entered by the municipal court on February 20th (which we have above quoted) that no one appeared on behalf of the city on either of these two occasions. The only notice that was given was to the city attorney that a motion would be made to vacate the judgment. There was no notice that if the motion were allowed the case would be immediately put on trial.

We have heretofore given the substance of plaintiff’s testimony, except he further testified that after Mc-Ardle spoke to him, Iverson, who had come into the station, came over, and at about that time two police officers came into the station and were requested by McArdle to place Dumont under arrest, which was done. In the instant case McArdle and Iverson gave testimony to the effect that after McArdle asked Dumont to leave the station, the latter swore at Mc-Ardle, and about 75 people who were in the station gathered around to see what the trouble was; that thereupon the two police officers took Dumont into custody. These two witnesses further' testified that Dumont, or Galarza, had been talking to the young-lady at the popcorn stand for about two hours. Dumont denied that he swore at McArdle, and said he was talking to the young lady only about 25 minutes when accosted by McArdle. Plaintiff in the instant case also called a court reporter who had taken the testimony on the trial in the municipal court, from which it appeared that McArdle and Iverson there testified Dumont had been talking to her about one hour.

It is the law that when one in good faith submits facts fairly to an attorney of standing- or to a judge, obtains advice as to whether a person who is supposed to have committed an offense should be prosecuted and, acting* upon such advice, institutes proceedings of a criminal or gwsi-criminal nature against the party, such facts will constitute a complete defense to an action for false arrest and malicious prosecution, although the person charged is not, in fact, guilty. Hanneman v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 248 Ill. App. 196; Morrow v. Carnes, 108 Ill. App. 621; Neufeld v. Rodeminski, 144 Ill. 83.

Defendants contend that in the instant case the record discloses McArdle fairly explained the facts to the city prosecutor and to the judge of the municipal court who certified on the complaint that he had examined the complaint and the person presenting- it and was satisfied that there was probable cause for filing the complaint, and — as we understand the argument — that these facts constitute a complete defense to the instant case. The difficulty with this contention is that the evidence shows, we think, that the facts were not explained to the city attorney or to the judge of the municipal court until after Dumont was arrested.

Defendants further contend that in any event the judgment cannot stand because plaintiff in the instant case was tried and convicted in the municipal court, and although that conviction was later set aside by the municipal court, it is prima facie evidence that there was probable cause for arresting Dumont and filing the complaint against him. And since there is no evidence in the record that such conviction was obtained by fraud or unfair means, the judgment of the municipal court, finding the defendant guilty, is a bar to the instant case, citing McElroy v. Catholic Press Co., 254 Ill. 290, and other cases.

In reply to this contention counsel for plaintiff in the instant case say the rule contended for does not apply except where a judgment of conviction has been reversed by a court of review, and since the judgment of the municipal court was vacated by that court, the rule is not applicable. We think the contention cannot be sustained. If one explains fairly the facts to a prosecuting attorney or to a judge concerning an offense claimed to have been committed by the person he seeks to prosecute, and is advised that such a prosecution should be instituted, this is a complete defense to an action for malicious prosecution although the person charged was not guilty. Hanneman, Morrow and Neufeld cases, above mentioned. A fortiori should such a person be immune to a claim for damages in a suit for malicious prosecution where the criminal or qmsi-criminal case has been heard by the court and the defendant there found guilty.

Whether a person who has made such charges explained all the matters in good faith to the attorney or the judge, is often a question of fact. Hanneman v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 248 Ill. App. 196.

In the instant case counsel for plaintiff say that even if the rule contended for by defendants applies, “there is ample evidence in the record of false testimony, corrupt practices and unlawful and unjustifiable means on the part of the persons procuring the conviction to rebut successfully all evidence of probable cause.” The evidence shows plaintiff went to the station to keep an appointment he had theretofore made. He testified that while waiting he talked 20 or 25 minutes to a young lady employed at a popcorn stand in the station. McArdle and Iverson testified that he talked to her about two hours, while there is some evidence that these two witnesses testified in the municipal court that plaintiff talked to the young lady about one hour. We think this evidence shows that plaintiff was loitering-in the station and McArdle was entirely warranted in telling- him to move out of the station. Upon his refusal to do so a disturbance arose. Under these circumstances we see no evidence of maliciousness in having plaintiff placed under arrest by the police officers. We think the prima facie presumption of probable cause, in believing that plaintiff in the instant ease was guilty of disorderly conduct which resulted in finding- him guilty in the municipal court, was not overcome. The evidence adduced in the instant case does not tend to show the conviction was obtained by false testimony, corrupt practice or unjustifiable means. Little weight is to be given to the fact that the municipal court afterward set aside the judgment of conviction, the record showing that none of the parties interested in the prosecution of the case was notified that a motion was to be made to vacate the judgment of conviction. And no notice was given to anyone that in ease that court did vacate the judgment of conviction, the matter would be immediately disposed of. But even if the judgment of conviction was properly vacated and set aside by the municipal court, this would not show want of probable cause for the prosecution. Glenn v. Lawrence, 280 Ill. 581.

As said in Ames v. Snider, 69 Ill. 376, which was an action for malicious prosecution (p. 379): “A party ought not to be held guilty when he sets in motion a criminal prosecution, simply because lie fails to convict the person accused, or indeed in every case where he fails to show the party was guilty. . . . It is sufficient if there is probable cause, whether the accused is in fact guilty or not.”

To the same effect is Collins v. Hayte, 50 Ill. 353, where the court said (p. 354): “Our experience teaches us there are few questions of law more difficult of comprehension by a jury than those which govern trials for malicious prosecutions. It seems difficult for them to appreciate, if the plaintiff was really innocent of the charge for which he was prosecuted, that he still ought not to recover.”

For the reasons stated the court should have granted defendants’ motion for a judgment in their favor notwithstanding the verdict of the jury. Sec. 68, Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 196.

The judgment of the circuit court of Cook county is reversed.

Judgment reversed.

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


text:
    The People of the State of Illinois ex rel. George Rotchford, Appellant, v. Michael J. Rotchford, Administrator of the Estate of Lucille Rotchford, Deceased, and the Standard Accident Insurance Company, Appellees.
    Gen. No. 38,627.

      Opinion filed March 23, 1936.
    McDonald & Taylor and Nellie MacNamara, all of Chicago, for appellant.
    Dent, Weichelt & Hampton, of Chicago, for appellees ; G. M. Weichelt, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendants, principal and surety, on an administrator’s bond. The defendant surety company filed its motion to strike the complaint because it failed to state a cause of action. The motion was allowed, the complaint stricken as to the surety company, at plaintiff’s costs, and he appeals.

In the complaint it is alleged that plaintiff is an heir at law and next kin of Lucille Rotchford, his deceased sister, who died intestate November 4, 1924; that defendant Michael J. Rotchford was by the probate court of Cook county appointed administrator of the estate of Lucille Rotchford, deceased, and that he (as administrator) as principal, and the Standard Accident Insurance Company, a corporation, as surety, executed an administrator’s bond in the statutory form (sec. 23, ch. 3, Ill. State Bar Stats. 1935) which was approved by the probate court of Cook county; that Rotchford qualified as administrator and on September 28, 1925, the date he was appointed, filed his bond; that he employed a practicing attorney in Cook county to “conduct all legal business in connection with the administration of said estate”; that afterward proof of heirship was made; that the only property or asset of the estate of Lucille Rotchford, deceased, was the cause of action on behalf of her next of kin against a person and a corporation for wrongfully causing her death as a result of being struck by an automobile truck.

It was further alleged in the complaint that it was the duty of the administrator and his attorney to bring suit to recover for the wrongful death of Lucille Rotchford, but that they failed to do so and that more than a year had elapsed since the death of Lucille Rotchford, so that the right was wholly lost; that afterward Michael J. Rotchford, as administrator, filed suit against his attorney, in the circuit court of Cook county, to recover damages for the failure of the attorney to institute and prosecute the suit to recover for the wrongful death of Lucille Rotchford; that in that suit plaintiff alleged and proved that on November 4, 1924, Lucille Rotchford, a child of six years of age, was struck and killed in Cook county as the result of being run over by an automobile truck which was being operated by a person and a corporation through their negligence; that they were solvent and well able to pay all damages that might be recovered against them for causing the death of Lucille Rotchford; that the attorney defended that suit, but the administrator had a verdict and judgment against him for $3,000, no part of which had been paid, although an execution had been issued, demand made and returned no part satisfied; that the attorney was insolvent. It was further alleged that the defendant surety company, in the instant case, had “actual knowledge of the pendency and progress” of the suit against the attorney; that plaintiff is the next of kin of Lucille Rotchford “as more fully appears from the Table of Heirship” filed in the probate court, and that plaintiff was at that time 10 years of age and was 21 years of age on June 15, 1935; that plaintiff petitioned the probate court, praying that Michael J. Rotchford be ordered to file an inventory in the estate of Lucille Rotchford, deceased, and that an order was entered by the probate court accordingly but that no inventory has been filed.

Sec. 58, ch. 3, Ill. State Bar Stats. 1935, provides: “Executors and administrators shall be chargeable with so much of the estate of the decedent, personal or real, as they, after due and proper diligence, might or shall receive. ’ ’

In Whitney v. Peddicord, 63 Ill. 249, the court said that the administrator or executor would be held to that degree of diligence that an ordinarily prudent man would bestow upon his own affairs. The court there said (p. 251): “The law does not require any one to accept the office of executor, but if one does accept it, he must discharge his duties with as much fidelity and care as prudent men ordinarily bestow upon their own affairs. As we have had occasion to remark in another case at the present term, a degree of strictness is not to be applied in the construction of their acts, . . .

which would deter responsible men from the acceptance of such positions. When they have acted with reasonable diligence and an honest desire to do their duty faithfully, a mere error of judgment in what was fairly matter of judgment or opinion, should not make them liable merely because subsequent events have shown they did not pursue the wisest course. But, on the other hand, they must be held to that degree of diligence which men ordinarily use in the management of their own affairs, and if, through lack of that, the interests of the trust estate are damnified, they must make good the loss.”

This rule was announced in the early case of Christy v. McBride, 1 Scam. (2 Ill.) 74. And in Christy v. Christy, 225 Ill. 547, the same rule was again stated, the court there saying (pp. 552-3): “In the performance of his duties an administrator must act with the highest degree of fidelity and with the utmost good faith, but he is held to the exercise of only that degree of skill and diligence which an ordinarily prudent man bestows on his own similar private affairs. Nothing more can be required of him, and if his acts will stand the test of that rule he cannot be held liable for any loss that may be sustained by the estate of his intestate.”

Obviously it was the duty of Michael J. Rotchford, as administrator of the estate of Lucille Rotchford, the deceased, to bring suit if necessary against the person and the corporation claimed to have wrongfully caused the death of Lucille Rotchford and to collect and distribute whatever money he received to those entitled to it under the statute. But he could not do this himself; he must act through an attorney. He employed an attorney for this purpose. Through the neglect of the attorney the suit was not brought within the year after the death of the child, Lucille Rotehford, so that the claim was wholly lost. Afterward the administrator caused suit to be brought against the former attorney for his negligence and had a verdict and judgment. But this was ineffectual because of the attorney’s insolvency. We think that the administrator did meet the test of the law as laid down by our Supreme Court in the cases above cited. Christy v. McBride, 1 Scam. (2 Ill.) 74; Holeman v. Blue, 10 Ill. App. 130. The administrator not being liable, of course his surety cannot be held.

The fact that the administrator failed to file an inventory in the probate court, as the statute required him to do, does not require a reversal of the judgment in the instant case, because the record discloses there were no assets belonging to the estate of the deceased child except the cause of action as stated. People v. Petrie, 191 Ill. 497.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

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


text:
    Central Cleaners and Dyers, Inc., Appellant, v. Clarence Schild and Nola Schild, Appellees.
    Gen. No. 38,646.
    Opinion filed March 23, 1936.
    Benjamin & Friedlander and Follansbee, Shorey & Schupp, all of Chicago, for appellant; Clyde E. Shorey and Gerhardt S. Jersild, of Chicago, of counsel.

      Francis J. Gariepy and Charles E. Mallon, both of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiff seeks to reverse an order vacating a judgment entered in plaintiff’s favor and against the defendants, and giving defendants leave to defend the suit on its merits.

The record discloses that on August 29, 1933, there was a collision at a street intersection in Chicago, between a truck owned and operated by plaintiff, and an automobile driven by defendant, Nola Schild, who, plaintiff claimed, was the agent of her husband, the other defendant, Clarence Schild. Three days thereafter, September 1, 1933, plaintiff brought suit against the defendants in the municipal court of Chicago, to recover the damages to its truck claimed to have been occasioned through the negligent operation of the automobile. The summons was returnable at 9:30 a. m. September 13th. The bailiff served the writ on the defendant, Clarence Schild, and his return shows he was unable to find the other defendant, Nola Schild. On the return date of the summons there appears in the record a written appearance of both defendants, signed by William Moran, an attorney, and on that day, an order was entered giving defendants 10 days to file an affidavit of merits, and the case was postponed to September 27th. On September 27th, an order was entered giving defendants leave to file an affidavit of merits instanter, which was accordingly done. The affidavit of merits denied liability and averred that the collision between the truck and the automobile was caused by the negligence of the driver of plaintiff’s truck. This affidavit apparently was signed and sworn to by both defendants on September 23, 1933, before Leo C. Moran, a notary public. Thereafter orders were entered postponing the case. The last order set the cause for hearing on April 5, 1934. On that date the record discloses plaintiff: appeared but defendants were absent and were not represented by counsel. The case was heard by the court without a jury and there was a finding- and judgment in plaintiff’s favor for $128. On May 15, 1934, an execution was issued directed to the bailiff but it had not been returned to the files of the court.

August 19, 1935, defendant Nola Schild, who was represented by counsel other than the counsel who had filed defendants ’ appearance, served notice on counsel for plaintiff that on the next day she would ask leave to file a motion under section 21 of the Municipal Court Act, or section 72 of the Civil Practice Act, which motion is by statute substituted for the common law writ of error coram nobis, and on August 20th, the notice and motion were filed. The motion is verified by Nola Schild and is supported by affidavits of defendant Clarence Schild, and Dr. Walter F. Asche. On the same day, August 20th, the court entered the motion and" continued the matter to August 27th, and on the latter date the motion was heard, it was sustained, the judgment vacated as to both defendants, they were given leave to defend, and plaintiff appeals.

On December 15, 1933, which was about four months before the judgment was rendered, Nola Schild brought suit in the superior court of Cook county to recover damages for the injuries claimed to have been sustained by her as a result of the collision between the truck and the automobile, above mentioned. The defendant in that case (plaintiff here) filed the general issue and special pleas. And more than three months after it had obtained judgment in the municipal court against defendants it, by leave of court, filed an additional plea setting up the judgment, and alleging- that by reason thereof, the matters in controversy in the personal injury case had been adjudicated. As stated, more than a year-after this, defendant Nola Schild, filed her motion to vacate the judgment and for leave to defend.

We think it obvious that the contest on this appeal is in the nature of a “sham battle” in that either plaintiff or defendants will seek to use such judgment in the personal injury case. While the question is not before us, we might say that in Clancey v. McBride, 251 Ill. App. 157, where there was a collision between two automobiles which caused damages- to one of the machines and the owner and driver of it received personal injuries, we held that such person could maintain but one suit to recover for damages to the automobile and injuries to the person.

This judgment was reversed by the Supreme Court, 338 Ill. 35, where the court said (p. 41): “The recovery of a judgment, however, for damage to property is not a bar to a subsequent action to recover damages for injuries to the person.”

Plaintiff contends that Judge Dunne of the municipal court, who heard the motion involved in this appeal, was without jurisdiction because the case had been heard and judgment entered before Judge Greer sitting in the municipal court of Chicago, and that such a motion can be heard only by the judge who entered the judgment. No such contention was made on the hearing of the motion before Judge Dunne. It is raised for the first time in this court. But in any event, we think the cases cited by counsel for plaintiff are not in point. In McGrath & Swanson Const. Co. v. Chicago Rys. Co., 252 Ill. App. 476, where a motion was made under section 89 (now section 72) of, the Practice Act, we held that a petition for a change of venue from the judge who had entered the judgment and before whom the motion was pending, would not lie; that the judge who rendered the judgment was the judge before whom the motion should be made. All that we held in that, case was that a change of venue would not lie where a motion was made under section 72 of the Practice Act, where it was presented to the judge who rendered the judgment. In the instant case no motion was made for a change of venue, nor was any objection .urged that Judge Dunne did not have authority to entertain the motion. It is obvious if the only judge who could hear such motion was the judge who had rendered the judgment, this would result in a denial of justice where the judge, who had rendered the judgment, had died, was absent, or otherwise unable to hear the motion. Moreover, Eule 277 of the municipal court and the note to that rule provide that a motion to open up or vacate a judgment, unless the parties otherwise agree, shall be submitted to the judge by whom the order or decision has been made, excepting that in case of the death or absence of such judge, or his inability to act promptly upon the matter, the motion may be submitted to another judge to whom the same may be assigned by the chief justice for .that purpose. And in the note to that rule, it is said, “The propriety of submitting a motion of the character specified in the rule to the judge who has entered the order in question is apparent. But speed in according relief to the party complaining may render it necessary to otherwise provide and the Chief Justice should have the power to exercise the discretion thus given him, ’ ’ and that where a motion to open up or vacate a judgment does not involve a review of the decision of the judge who entered the judgment a motion “to vacate a judgment under Section 21 of the Municipal Court Act . . . may be submitted to any judge of the Court.”

The record discloses that Judge Greer, who entered the judgment, was a judge of the “County Court of Christian County, Illinois, holding a branch of the Municipal Court of Chicago, at the request of the Judges of said Municipal Court.” And we must assume in the absence of any-showing to the contrary, the motion was regularly assigned to Judge Dunne and that he was empowered to hear the motion.

When the motion came on for hearing', a counsel for plaintiff, who then appeared for the first time, moved that the matter be continued on the ground plaintiff was not ready; that the attorney who had entered the appearance of defendants in the municipal court was in California, and counsel had been unable to get in touch with him. This was objected to by counsel for defendants on the ground that plaintiff had neither demurred nor filed an answer to the petition, and after some argument, the motion for continuance was denied. The hearing proceeded and the motion, which was verified by defendant Nola Schild, and the affidavits of her husband and her attending physician which had theretofore been filed with the petition, were considered. The defendants then called two witnesses who testified.

The contention of defendants was that defendant Nola Schild had not employed counsel to represent her, nor had she authorized anyone to do so; that on account of the serious injuries she received in the collision of the truck and automobile, she was mentally incompetent to do so; and that she was mentally incompetent to understand the affidavit of merits which bore her signature.

The record discloses that defendant, Nola Schild, was severely injured in the collision and was immediately taken to the hospital. In the affidavit of her attending physician, in support of the motion, the physician swears that he attended her on August 29th, following the accident and he describes in detail the nature of her injuries; that from the time of the accident to October 1, 1933, he attended her day and night and for eight months thereafter he saw hef a number of times; that in his opinion, during the time in question, she was mentally incompetent and unable to transact business of any kind or nature; that she was unable to hold a rational conversation.

Plaintiff called as a witness an adjuster and investigator who testified he called on Mrs. Schild at her home about October 6, 1933, and in the presence of her husband he talked to her about the accident for about two hours; that he wrote down what was said at the time but Mrs. Schild refused to sign the statement on the advice of her attorney. Plaintiff also called Dr. Lamb, whose qualifications as a practicing physician and surgeon were admitted. He testified he made a physical examination of Mrs. Schild in the presence of her attending physician on September 21, 1933, which was two days before she signed the affidavit of merits before the notary public, which set up the defense of her husband and of herself to the case; that she was confined to her bed with bandages on her face and dressings on her neck, and he found an enlargement on both sides of her neck which was ordinarily known as “mumps.” He also testified to other matters which he found and that “She was perfectly rational”; that he talked to her about the accident and she told him how it occurred, and gave him some history of an abdominal operation which she had a few years before and that they joked about her having mumps.

The burden was on defendants to prove that she was mentally incompetent at the time. The court found in her favor, and upon a careful consideration of all the evidence, we are unable to say that the finding is against the manifest weight of the evidence. Nor can we say the court erred in refusing to grant plaintiff’s motion for a continuance because we think it appears that what plaintiff sought to prove by the testimony of the attorney who had entered defendants’ appearance, would throw no light on the question whether she ivas mentally incompetent at the time the appearance was filed and at the time she signed the affidaAdt of merits because there was no contention, as we understand it, that the attorney had ever seen Mrs. Schild. The court, having found Mrs. Schild mentally incompetent to authorize anyone to enter her appearance or to sign the affidavit of merits, was warranted in vacating the judgment and giving defendants leave to defend. Dyke v. Petty, 198 Ill. App. 414; Baird & Warner, Inc. v. Roble, 250 Ill. App. 255. Nor do we think there was error in the court vacating the judgment as to both defendants, although the motion was made only by one of them. The objection now made was not mentioned in the trial court and cannot be raised here for the first time.

Complaint is also made that the court erred in denying plaintiff leave to file an answer to the motion. The record is somewhat confused on this point. After the matter was on hearing for some time, counsel for plaintiff asked for leave to file an answer which he produced. This was after the court had indicated he would vacate the judgment. The court said the answer should have been filed before the hearing. The motion of counsel for plaintiff, for leave to file the answer, was overruled, the court stating: “Overruled, but I will allow you to file it.” The answer was not filed but is incorporated in the report of the proceedings. After the motion was denied, however, plaintiff called witnesses who testified as above stated, so that it had the benefit of a hearing on the matters that were set up in the answer. In these circumstances, plaintiff was not prejudiced.

Nor was the defendant, Mrs. Schild, barred by laches because section 72 of the Civil Practice Act provides that the motion under the statute may be made at any time within five years after the rendition of the final judgment.

The order of the municipal court appealed from is affirmed.

Order affirmed.

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


author: Mr. Presiding Justice Edwards

text:
    Floyd Roberts, Administrator of the Estate of William M. Roberts, Deceased, Appellee, v. Clara B. Hayes, Administratrix of the Estate of Thomas J. Hayes, Deceased, Appellant.
    Opinion filed March 6, 1936.

      Arthur Roe, Charles R. Myers, both of Vandalia, and Jesse R. Brown, of Edwardsville, for appellant.
    J. G. Burnside, of Vandalia, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

The complaint set forth that on May 26,1934, Thomas J. Hayes, intestate of appellant, brought about and encompassed the death of William M. Roberts, intestate of appellee, by a wrongful and wilful act, by firing a revolver bullet wilfully and intentionally into the body of said Roberts. Appellee answered, denying that said Hayes occasioned the death of Roberts by any wrongful or wilful act, denied that he intentionally fired the shot as alleged, and averred that Hayes, at the time of the shooting, was insane and incapable of forming an intent or acting wilfully.

The suit was brought under the Injuries Act, Ill. State Bar Stats. 1935, ch. 70, by appellee, as administrator of the estate of Roberts, in behalf of his next of kin, against the administratrix of Hayes’ estate, the latter having killed himself after shooting Roberts. Upon a trial there was a jury verdict for $5,000, upon which the court entered judgment, and from which appellant appeals.

The principal reasons urged as grounds for reversal are the refusal of the trial court to permit appellant to make proof that Hayes was insane at the time of the shooting, the striking of certain testimony, and the refusal to give certain instructions bearing upon the question of insanity as a defense to the action.

The law is well settled that where a lunatic wrongfully kills another, he or his estate, if he thereafter, and before the suit, shall die, is liable in a civil action for damages in behalf of the next of Idn of the person killed. McIntyre v. Sholty, 121 Ill. 660; Seals v. Snow, 123 Kan. 88, 254 Pac. 348; Young v. Young, 141 Ky. 76, 132 S. W. 155; Jewell v. Colby, 66 N. H. 399, 24 Atl. 902. And it is further held by such authorities that evidence of the insanity of the defendant at the time of the wrongful killing is not admissible when offered in defense of the action.

Appellant, however, contends that the complaint having charged that the shooting was wilfully and intentionally done, appellee was under the obligation of proving such intention, and that the way was thereby opened for the defense to plead and prove insanity; that such, if proven, was a complete defense to the action, whereby it became and was competent to offer evidence as to the mental condition of Hayes at the time of the killing, and that the ruling of the court rejecting such offers was to deny to appellant her defense.

An insane person has no will, and his acts necessarily lack the element of wilfulness or intention, hence obviously it is not essential to allege or prove his torts as having been done wilfully or with any evil intention. McIntyre v. Sholty, supra; Feld v. Borodofski, 87 Miss. 727, 40 So. 816; Buswell on Insanity, sec. 355; 32 Corpus Juris, 749.

The charge in the complaint that Hayes wrongfully brought about and encompassed the death of Roberts by shooting him was an adequate and complete statement of an unjustifiable killing. The further allegation that same was wilfully and intentionally done was wholly unnecessary and .added nothing to the sufficiency of the charge. Such matters of pleading, being beyond the circumstances necessary to constitute the cause of action, are surplusage. State v. Whitehouse, 95 Me. 179, 49 Atl. 869; Bradley v. Reynolds, 61 Conn. 271, 23 Atl. 928.

Averments of a complaint which are mere surplusage, as being immaterial and unnecessary, do not affect the sufficiency of the pleading nor require proof thereof. Jones v. Sanitary Dist., 265 Ill. 98; Barnes v. Northern Trust Co., 169 Ill. 112, 118; Feld v. Borodofski, supra; Cavanagh v. Tyson, Weare & Marshall Co., 227 Mass. 437, 116 N. E. 818; Neal v. Smith, 89 Me. 596, 36 Atl. 1058; DePaola v. National Ins. Co., 38 R. I. 126, 94 Atl. 700; and further, an immaterial allegation need not be proved even though issue is joined thereon. Feld v. Borodofski, supra; Billingham v. Bryan, 10 Iowa 317; 49 Corpus Juris, 788, sec. 1162.

Under the rule of the authorities cited, the allegation that the shooting was wilfully and intentionally done was wholly unnecessary as matter descriptive of the charge, was surplusage, and as such, appellee was not required to malee proof of same; nor did the fact that appellant set up in her answer insanity, which, under the authority of McIntyre v. Sholty, supra, was no bar to the action, constitute same a defense to the cause, it being admittedly set forth to meet the surplusage of the complaint and for no other purpose.

For which reasons we think the court correctly ruled against the proffered testimony as to the mental condition of Hayes at the time of the fatal occurrence, and properly struck from the record evidence previously admitted which bore upon the question.

The instructions offered by appellant and refused by the court were based upon the insanity of Hayes as a defense to the action, and hence were properly rejected.

We find no error in the record and the judgment will be affirmed.

Judgment affirmed.


text:
    Josephine M. Denton, Administratrix of the Estate of David U. Denton, Deceased, Appellee, v. Midwest Dairy Products Corporation, Appellant.

      Opinion filed March 6, 1936.
    Carl H. Preihs, of Pana, for appellant; M. C. Cook, Will P. Welker, of Vandalia, and John W. Preihs, of Pana, of counsel.
    Harry C. Miller and J. G. Burnside, of Vandalia, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee, as administratrix of the estate of David U. Denton, deceased, brought suit in behalf of herself as widow, and her infant son as next of kin, of the deceased, against appellant to recover damages for the death of decedent caused by the wilful and wanton misconduct of the driver of a truck belonging to appellant and in which her intestate was riding as a guest passenger. A jury awarded appellee $4,000 damages. At appropriate times appellant moved for directed verdicts, judgment non obstante veredicto, and for a new trial, all of which motions were overruled by the court and judgment entered upon the verdict. Appellant insists that the court erred in each of such rulings.

The trial court appears to have treated the suit as having been brought under Ill. State Bar Stats. 1935, oh. 95a, ¶ 47 (5) (section 58a, ch. 95½, Smith-Hurd R. S. 1935) providing: “No person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representatives in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”

In Reed v. Zellers, 273 Ill. App. 18, the court, in construing this section, held that it did not create a cause of action, but on the contrary was a limitation of the common law right of the guest to recover for damages. This being true, the action could not be predicated upon such section, but must be based upon sections 1 and 2 of the Injuries Act, Ill. State Bar Stats. 1935, ch. 70, ¶¶ 1, 2, which, in effect, provide that when the death of a person is caused by the wrongful act of another, and the act is such as would, if death had not resulted, entitle the party injured to maintain an action for the damages thereby sustained, the personal representatives of such deceased person may maintain the action for his next of kin.

In Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, the rule was declared to be that where a death results from injuries occasioned by the misconduct of another, the only action which lies is the one granted by the Injuries Act to the personal representatives for the benefit of the next of kin of the deceased; and likewise held in Young v. Ostrander, 270 Ill. App. 368. It is obvious that appellee was obliged to institute her action under sections 1 and 2 of the Injuries Act, and that such sections, as restricted by said section 58a, control the bringing of the suit and the right and extent of the recovery.

Appellant contends that the law, applicable to the cause, required appellee to aver and prove that her intestate’s decease was proximately caused by the misconduct of appellant’s employee, and that it was not sufficient that she allege and show merely that such misconduct contributed to his death.

That the law so requires, unless it be that the rule has been changed by said section 58a, is not open to dispute. It has for many years been the settled law not only in this State, but in most other jurisdictions, that to sustain an action for death, the wrongful act complained of must have been its proximate cause. Chicago & A. R. Co. v. Becker, 76 Ill. 25; Schmalfeld v. Peoria E. Ry. Co., 156 Ill. App. 1; Temple v. Alton, Granite & St. L. Traction Co., 197 Ill. App. 227; Ramberg v. Morgan, — Iowa —, 218 N. W. 492; Elliott v. Kraus, 92 Ind. App. 494,172 N. E. 783; Frye v. City of Detroit, 256 Mich. 466, 239 N. W. 886; Breed v. Philgas Co., 118 Conn. 128, 171 Atl. 14; Beach v. Patton, 208 N. C. 134,179 S. E. 446. Moreover, it has been held by our courts that in such case the plaintiff must aver, and the proof must establish, that the wrongful act of the defendant caused the death complained of; Holton v. Daly, 106 Ill. 131; Quincy Coal Co. v. Hood, 77 Ill. 68; Schmalfeld v. Peoria & E. Ry. Co., supra; and not merely that it contributed thereto.

“In. order to arrive at the proper construction to be placed upon a statute, it is proper to look at the law as it previously stood, the matter sought to be remedied, and the nature and spirit of the statute.” Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, 244 N. W. 721.

Applying the test thus laid down, we notice that the law in force previous to the enactment of said section 58a permitted a guest passenger to recover for injuries sustained through the wrongful act of another, whether such was mere negligence, or wilful and wanton misconduct; that the object to be attained was the elimination of such actions, when based solely upon ordinary negligence, and the limitation of the right of recovery to instances where the injury was resultant from wanton and wilful misconduct. With such a background of purpose, it is difficult to believe that the legislature could have intended to limit the bringing of such actions to instances of misconduct which in their nature border on crime, and at the same time permit a recovery upon proof that the wilful and wanton misconduct merely contributed to the death, without regard to the degree of contribution, no matter how slight or remote it might be.

We do not think that such was their purpose or intent, or that they designed to alter the long established and thoroughly understood rule, based upon logic and common sense, in the light of human understanding and experience, that before a recovery is warranted, it is incumbent upon the plaintiff to aver and prove that the wrongful act of the defendant was the proximate cause of the death.

Appellant claims that the complaint in each count fails to make such averment. In the first count it is charged, “that said injury to plaintiff’s intestate, from which injuries on the date he received the same he died, was then and there caused by the willful and wanton misconduct of the driver of such motor vehicle.” In count No. 2 the allegation is: “Which said wanton and willful conduct on the part of the defendant, by and through its agent and employe, contributed to and caused the injury to plaintiff’s intestate, from which injury he died on the day and date aforesaid”; while in the 3rd count the charge is: ‘ ‘-That said injury to plaintiff’s intestate, from which injuries on the date he received the same he died, was then and there caused by the willful and wanton misconduct of the driver of such motor vehicle. ’ ’

In all of the counts the averment is that the injury was caused by the wilful and wanton misconduct of appellant’s driver, and that such injury occasioned the death of appellee’s intestate. The gist of the charge is that the driver, by his misconduct, caused the injury, and thereby encompassed the death of decedent. This alleges that his misconduct alone was the cause of such death, and necessarily includes therein that it was proximately caused thereby. The additional averment in each count that the misconduct contributed to the death was wholly unnecessary and added nothing to the charge. Such may be disregarded as surplusage. Jones v. Sanitary Dist., 265 Ill. 98; Barnes v. Northern Trust Co., 169 Ill. 112, 118. We think, the complaint was good as against objections raised concerning it, and that the court rightly so held.

It is earnestly contended that the proof failed to make a case for appellee, and that the court should have directed a verdict for appellant. Without entering into a detailed discussion of the proof, we state it to be our opinion that there was sufficient evidence bearing upon appellee’s case to warrant the court in submitting the cause to the jury; Libby, McNeill & Libby v. Cook, 222 Ill. 206; and for the same reason we think the court properly overruled the motion for judgment non obstante veredicto.

Under its motion for a new trial, appellant urged that the trial court in its charge misdirected the jury as to the law of the case. Among other things the court charged the jury: “And in this case, if you find from a preponderance of the evidence that the driver of the truck was guilty of willful and wanton misconduct, as above defined, and that as a consequence thereof the accident occurred, and further, that such conduct contributed to the death of plaintiff’s intestate, that you should find the defendant guilty.”

As we have previously seen, the conduct of the truck driver which occasioned the injury must also have been the proximate cause of the death of the deceased, hence the portion of the charge which permitted a finding for appellee, upon proof that such conduct merely contributed to same, was not an accurate statement of the law, and should not have been given.

Appellant tendered as a suggestion for the charge, which was rejected, that the court did not by word uttered, nor remarks made, during the trial, nor by its charge, intimate or mean to give or be understood as giving an opinion upon the facts of the case; that it was solely for the jury to determine the facts from the evidence, and then apply to them the law as given in the instructions. This suggestion was a correct statément of law, as well as a helpful guide to the jury, and inasmuch as the principle it contained was not embodied in the charge, we think it should have been adopted by the court and given to the jury.

Upon the question of damages, the court incorporated into the charge a direction: “And the elements to be considered in computing such damages, are what they might reasonably have expected in the way of care, support and education by and through the husband and father, and the amount of estate they might have inherited from him, if any, and from a consideration of these elements, you should find the damages.” Appellant argues that the inclusion of “the amount of estate they might have inherited from him, ” as an element of damages, was erroneous and improper.

In Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330, the court stated, on page 336: ‘ The sole measure of damages is pecuniary loss, — that is, how much would the deceased, in all probability, have added to the estate had he lived.” Also, in Jury v. Ogden, 56 Ill. App. 100, 104, the court declared: “The amount to be recovered is what the. statute regards as the pecuniary value of the addition to such estate left as the deceased, in reasonable probability, would have made to it and left, if his death had not been so wrongfully caused.”

From these authorities it is apparent that the courts regard the statute as conferring a rig'ht of recovery for what in reasonable probability would have been added to, and left, by the deceased as a part of his estate. Hence it is proper to charge a jury in such case that they may consider, as damages, the amount which probably, in reason, the decedent would have added to his estate but for his wrongful death.

The charge in the instant case does not limit such fact, within the rule as stated; on the contrary, it told the jury they might consider as damages “the amount of estate they might have inherited from him.’’ This, in its broadly inclusive language, would mean not only the probable addition to his estate, but all other property which he might leave, without regard to the source of its acquisition, and is in direct contravention of the rule as stated in two decisions last cited; for which reason it was erroneous and should not have been given.

It is further urged that the court erred in refusing certain other suggestions offered by appellant. Upon an examination we find that they were largely reiterations of legal principles which were embodied in the charge, and were rightly rejected.

The trial court permitted appellee to prove, over objection by appellant, that its truck was being driven about 50 miles an hour at a point some six miles from the scene of the accident. It further appeared that the truck stopped at Coiling’s filling station, about two miles from the place of the collision, where its driver transacted some business, and thence proceeded to the point where the disaster occurred. It is contended that the speed of the truck six miles from the scene- of the accident is irrelevant. Had the proof further established that the rate of speed was maintained up to the time of the casualty, then such evidence would have been properly admissible; Wellman v. Mead, 93 Vt. 322, 107 Atl. 396; Taxicab Co. v. Hamburger, 146 Md. 122, 125 Atl. 914; it, however, did not so show. On the contrary, it is undisputed that the truck thereafter, and prior to the collision," stopped for an appreciable period of time, and again resumed its course. No continuity of the rate of speed having been shown, we think it was error to permit proof of same at a point six miles from the place of accident. Ramp v. Osborne, 115 Ore. 672, 239 Pac. 112.

For the reasons given, the judgment is reversed, and the cause is remanded.

Reversed and remanded.


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    The People of the State of Illinois, Appellee, v. Amos Pillman and Ted Zimmerman. Amos Pillman, Appellant.

      Opinion filed March 6, 1936.
    Milo D. Yelvington, of Newton, for appellant.
    Homer Kasserman, State’s Attorney, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

The State’s attorney of Jasper county, by leave of court, filed an information in quo warranto calling upon appellant to show by what authority he exercised the duties of supervisor of the Town of Smallwood in Jasper county. One Ted Zimmerman, who claimed to be the lawful incumbent of the office, was also made a party defendant and filed his plea to the information.

Appellant pleaded justification, alleging that he was duly elected supervisor of said township in April, 1930, for a term of three years and until his successor should be elected or appointed and qualified; that an effort was made at the annual town meeting in April, 1933, to elect his successor; that upon a contest of such election, the county court held that no one had been elected as supervisor; that thereafter he continued to hold such office, and that no successor to him had since such time been elected or appointed and qualified; that at the annual town meeting in April, 1935, candidates for supervisor were then voted for, and said Zimmerman declared elected to the office, but he denies that such election was valid, for the reason that no law of this State authorized the election of a supervisor to fill a vacancy except at a special town meeting called for such purpose, and that no such special town meeting was held in such township, for such purpose, since the election of appellant in April, 1930; and that by virtue of the statute which provided he should hold his office until his successor was elected and qualified, he has continued and still continues to hold such office; and that by reason of the premises, his title thereto is lawful.

To this plea a demurrer was filed, which the court sustained. Appellant refused to further plead, and judgment of ouster was entered against him, together with a fine of $1 and costs; from which judgment this appeal is prosecuted.

The only question argued by the parties is whether or not a vacancy in the office of supervisor can be filled at an annual town meeting*.

The statute in force at the times in question, being sec. 60 of the Township Organization Act, Cahill’s St. ch. 139, ¶ 60, provided that the supervisor elected in 1930 should hold his office for three years and until his successor is elected and qualified, and that his successors, elected in 1933 and every four years thereafter, should hold for a term of four years and until their successors are elected and qualified; hence appellant was not only entitled, but was as well obligated, to exercise the functions and duties of his office after April, 1933, when an attempt to elect a supervisor failed, until and when a successor should be lawfully chosen and qualified.

Where an officer, so elected, holds by virtue of the statute until his successor has been elected and qualified, his temporary occupation does not prevent the declaration that a vacancy in such office exists, and the filling of same by the authority empowered so to act in such situation. 46 Corpus Juris, 969, sec. 110.

It is thus evident that while appellant’s holding over after the expiration of his term was lawful, the tribunal constituted by law to determine whether such facts established a vacancy had the authority and were under the duty of so determining and declaring that a vacancy existed.

In Ill. State Bar Stats. 1935, ch. 46, ¶ 139 (sec. 129 of ch. 46, Smith-Hurd R. S. 1935), it is provided: “Whenever it is alleged that a vacancy in any office exists, the officer, court or county board whose duty it is to fill the vacancy by appointment, or to order an election to fill such vacancy, shall have power to determine whether or not the facts occasioning such vacancy exist.”

Par. 96 of the Township Organization Act, Ill. State Bar Stats. 1935, ch. 139, declares that whenever any town shall fail to elect the proper number of town officers, or when a vacancy shall happen in any town office, except justice of the peace or constable, it shall be lawful for the supervisor, town clerk and justices of the peace of the town to fill such vacancy by appointment, and the person so appointed shall hold office for the unexpired term and until others are elected or appointed in their places.

It is further provided by sec. 56 of the same act that a special town meeting may be held when the supervisor, town clerk, a justice of the peace, or any two of such officers, together with at least 15 voters of the town, shall file with the town clerk a request therefor, at which such special town meeting, as authorized by sec. 59 of the Act, “the electors at special town meetings, when convened, shall have power to fill vacancies in the offices of town officers when the same shall not have already been filled by appointment. ’ ’

We have been referred to no other statutory authorization, nor have we been able to find any, covering the subject of filling a vacancy in a town office. It is of course fundamental that where the statute provides or allows a manner in which vacancies may be filled, either by election or appointment, such mode is exclusive and the only lawful way in which such function may be exercised, and that an officer, otherwise selected, has no legal tenure to the office. 46 Corpus Juris, 976, sec. 125.

Appellees argue: “As stated in the various cases cited in the brief herein, the theory of annual town meetings is that all of the electors of the town are present and that they may transact any and all business of the town. They are not limited to the amount of taxes they may levy for town purposes. They may take cognizance of- vacancies existing in town offices; the only limitation on the authority of the town in such an event is that the officers shall be selected by ballot instead of in open meeting.”

We think this is a misapprehension of the law, as the electors present at the annual town meeting do not take notice of the existence of a vacancy in a town office. This seems but logical; a special tribunal of town officers is constituted to determine whether or not a vacancy is in effect, and until they have determined such fact, or the matter has been cared for by a special town meeting as the statute provides, it cannot be known that a vacancy in fact exists; and certainly, until a vacancy has been determined in the manner required by statute, there is no authority to fill it.

In People v. Czarnecki, 312 Ill. 271, 274, the rule is stated to be: “While the voters are bound to take notice of a general election day fixed by statute and of the offices that are to be filled at that time, they are not bound to take notice of the existence of a vacaney.” And to the same effect are Cook v. Mock, 40 Kan. 472, 20 Pac. 259; Secord v. Foutch, 44 Mich. 89, 6 N. W. 110.

We do not find any power conferred by statute, expressly or by implication, to fill vacancies in town offices at 'the annual town meeting. We are therefore of opinion that the election for supervisor of Small-wood Township, held at the annual town meeting of April, 1935, was without legal sanction, and was invalid.

The plea of appellant set forth a sufficient justification, and the court improperly sustained the demurrer thereto; for which reasons the judgment is reversed and the cause is remanded with directions to the trial court to overrule such demurrer.

Reversed and remanded with directions.


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    Jacob Harre, Jr., by Jacob Harre, His Father and Next Friend, and Gilbert Harre, Appellants, v. Fayette County Mutual Telephone Company, Appellee.

      Opinion filed March 6, 1936.
    Matheny & Welker, of Vandalia, for appellants.
    J. G. Burnside, of Vandalia, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On July 9, 1934, appellants, Jacob Harre, Jr., and Gilbert Harre, together with their father, brother and a brother-in-law, were returning home in the early evening, over a public highway, from their work of plowing corn and baling straw in a field some distance from their residence. They were all riding on a truck loaded with baled straw, the top of the load being 9 feet and 10 inches from the ground. Across the highway was a guy wire maintained by appellee to steady one of its telephone poles along the side of the road. Said appellants had climbed up onto the bales of straw and were riding near the top of the load, and as they passed along, the guy wire caught them, sweeping them from the loaded truck to the ground, whereby they sustained bodily injuries.

Appellant, Gilbert Harre, was an adult; his brother, Jacob Harre, Jr., was 16 years of age, and the suit in his behalf was brought by his father and next friend. A jury found the defendant not guilty; the court approved the verdict by overruling motions non obstante veredicto and for a new trial, and entered judgment on the verdict. Appellants prosecute this appeal, contending that the verdict is contrary to the manifest weight of the evidence.

It is shown by the proof that the wire in question had been maintained in its then position for three or four years; that during such period of time appellants had been accustomed to pass over this highway and under the wire almost daily during the farming season. The height of the wire is in dispute, six witnesses testifying for appellants that they measured same the day following* the accident, and that it was 11 feet and 3 inches from the ground. Two employees of appellee on the same day measured the distance from the wire to the roadbed, and stated that they did so with a tape measure and that the height of the wire was 13 feet and 4 inches above the roadway. This was practically the only conflict in the evidence. Appellants insist that the testimony thus clearly proves that the wire was 11 feet and 3 inches above the highway; .that it should have been strung from poles at least 25 feet high, and that thereby appellee was negligent in so erecting* and maintaining* such wire.

A witness for appellee was cross-examined by appellants, over appellee’s objection, and permitted to state that, to give proper clearance, the poles from which the guy wire was strung should have been 25 feet in height.

There was no proof on the part of appellants of any regulatory requirement, by any constituted legal authority, that such poles should be of a specified height, nor that the wire crossing the highway should be any specified number of feet above the traveled track. In the absence of such evidence of legal requirements in connection therewith, it appears to be the rule that while telephone vires crossing a highway must be sufficiently high for the safe passage of the usual and ordinary travel, they need not be high enough to safeguard travel of an extraordinary character; in which case the traveler is required to keep a lookout for his own safety. Wegener v. Kelley, 182 Iowa 259, 165 N. W. 449; Mayhew v. Yakima Power Co., 72 Wash. 431, 130 Pac. 485.

Whether the wire was 11 feet and 3 inches, or 13 feet and 4 inches, above the highway track, was a question of fact. The jury saw and heard the witnesses and were in better position than are we, to pass upon their credibility, and the mere fact that six swore to the lower height, and two testified to the greater, is not alone sufficient for us to determine which group told the truth. The weight of the testimony is determined, largely, by the credibility to be accorded to the evidence of the several witnesses, and not inferred, merely, from numbers.

If the wire was in fact 13 feet and 4 inches above the road then it was plainly a question of fact for the jury as to whether same was of a height sufficient to clear the usual and ordinary traffic of the highway. Mountain States Tel. & Tel. Co. v. Walker, 35 F. (2d) 465; Pacific Tel. & Tel. Co. v. Hoffman, 208 Fed. 221; Wegener v. Kelley, supra; Friesenhan v. Michigan Tel. Co., 134 Mich. 292, 96 N. W. 501; Phelps v. Board of Com’rs, 117 Md. 175, 82 Atl. 1058.

Appellee urges that even though it had been found negligent in its maintenance of the wire in question, still the burden was upon appellants to show that at the time of and prior to the accident they were not guilty of a want of ordinary care proximately contributing to the injury; and such is the law. LaFayette Tel. Co. v. Cunningham, 63 Ind. App. 136, 114 N. E. 227; Hovey v. Michigan Tel. Co., 124 Mich. 607, 83 N. W. 600; Friesenhan v. Michigan Tel. Co., supra; Bonjour v. Iowa Tel. Co., 176 Iowa 63, 155 N. W. 286; 62 Corpus Juris, p. 74, sec. 81.

The proof establishes that the wire had, for three or four years, been maintained at the place it was situated at the time of the accident, and that appellants had during such time passed the point almost daily during the season of farming operations. A wire strung above and across a public country highway is an object calculated to attract attention, and we think it was a fair inference, for the jury to deduce from the testimony, that appellants knew of its presence.

Whether it was the exercise of ordinary care for appellants to climb to the top of a truck loaded with baled straw, in the growing dusk of evening, and there ride at a height of nearly 10 feet from the ground, when they no doubt knew that they were approaching a wire strung across the highway with which they might collide, or whether such conduct was negligence on their part, and whether it proximately contributed to cause the accident and resultant injuries, were matters, within the rule of the cited authorities, peculiarly the province of the jury to determine.

We find nothing in the record to indicate that the jury were moved by prejudice, partiality or other improper consideration in arriving at their finding. Being charged with the duty of ascertaining the facts involved, and circumstances having been proven from which they might infer such facts as to justify their conclusion, we see no reason for disturbing the verdict and judgment, which will be affirmed.

Judgment affirmed.