text:
    Mrs. Emma Pabst, Appellant, v. Hillman’s, Appellee.
    Gen. No. 39,781.
    Opinion filed February 2, 1938.
    Krohn & MacDonald, of Chicago, for appellant; Stuart B. Krohn, of counsel.
    Robertson, Crowe & Spence, of Chicago, for appel-lee ; Burt A. Crowe, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from, a judgment non obstante veredicto entered by the trial judge after the jury had returned a verdict finding the defendant guilty and assessing plaintiff’s damages at $1,000 for personal injuries which plaintiff claims to have received while upon the premises of the defendant.

Plaintiff’s claim alleges in substance that on May 27, 1935, she was in the store operated by defendant, upon the implied invitation of defendant to plaintiff and other persons to enter said store and purchase merchandise offered therein for sale and while in the exercise of proper care for her own safety, she slipped and fell as she stepped on a string bean which was lying in one of the aisles of said store and plaintiff was severely injured.

Plaintiff’s theory of the case is and the evidence tends to show that on the day and date aforesaid she was present on the premises of defendant upon the invitation of defendant as a customer; that prior- to her entrance into defendant’s store, defendant had placed closely adjacent to the aisle where its patrons were forced to walk to go from one department to another, a large uncovered hamper of string beans so completely filled that the contents were piled above the rim of the hamper; that immediately adjacent to the hamper in question a quantity of the string beans were lying on the floor, apparently having fallen out of the hamper; that the string bean upon which plaintiff fell was on the floor in the vicinity of the hamper with other string beans on the floor; that as a direct result of plaintiff’s fall, she sustained serious injuries and incurred medical expenses amounting to $200; that she was incapacitated for almost a year because of her fractured leg and that there is a permanent partial disability.

No evidence was introduced by defendant excepting the deposition of plaintiff taken in defendant’s attorney’s office, and no contention is made as to the pleadings or as to the instructions given. The sole question before us for consideration is: Did the evidence of plaintiff sustain the verdict of the jury?

Dr. Seidler, a witness on behalf of plaintiff, testified that he lived at 443 Wrightwood avenue and his office address was 55 East Washington street; that he was a physician and surgeon and a graduate of Imperial University in Austria in 1914, where he had been a physician; that he treated plaintiff in the spring of 1935 at her home; that upon examining her leg he found a large swelling around the right ankle and blue discoloration, with what is called false motion and some crepitus,— the grating sound when two bony surfaces rub each other, with a very distinct tenderness over the area of crepitus; that the bone had to be set and immobilized; that plaintiff was taken to the hospital and the bones were brought in right position to each other and then a plaster of Paris cast applied to the leg from the toe up to above her knee; that it was in the first cast four weeks and then the cast was changed and another put on for two weeks and then the leg taped up for a few more weeks after which heat therapy treatment was given.

Dr. Seidler further testifying stated that the fibula was broken as well as the tibia of the leg and the attachments and ligaments to the bone were torn loose from the bone; that the injured bone was very close to the joint and the ankle bone itself was injured and filled with blood due to this condition and the joint itself was changed, some adhesions formed; that the smooth callus that should cover the joint was not smooth any more; that when you let the joint move there is some grinding in the bone; that this condition is called arthritis and it is a chronic permanent arthritis due to the injury to those joint structures; that it is a permanent disability; that he made a charge of $215 for Ms services, wMch is the customary charge for such services according to the “blue book of the medical society.”

At the conclusion of plaintiff’s evidence a motion was made by defendant to take the case from the jury and peremptorily instruct the jury to find defendant not guilty, which written motion was refused. Thereupon the defendant rested without introducing any evidence in its behalf except as before stated. A written motion was made by defendant at the conclusion of all the evidence to take the same from the jury and peremptorily instruct the jury to find the defendant not guilty with tendered instructions and with ruling of the court reserved. The instruction to find the defendant not guilty was denied.

The jury returned a verdict in favor of plaintiff for $1,000, and thereafter a motion was made by defendant notwithstanding the verdict for judgment against plaintiff for costs.

A deposition taken in the office of the attorney for the defendant, which had theretofore been offered in evidence, was also read to the jury. This deposition did not materially alter the evidence offered by the plaintiff at the trial.

Defendant cites the case of Darmody v. Kroger Grocery & Baking Co., 362 Ill. 554, as sustaimng its position that the defendant was not proven guilty. We do not think such authority applicable to the facts in this case as they are presented here.

In the case of Devine v. Delano, 272 Ill. 166, the Supreme Court said: “ ‘When a cause is shown which might produce an accident in a certain way and an accident happens in that manner, it is a warrantable presumption, in the absence of showing of other cause, that the one known was the operative agency in bringing about the result. ’ Brownfield v. Chicago Rock Island and Pacific Railway Co., 107 Iowa 254.”

In the case of Armour v. Golkowska, 202 Ill. 144, the Supreme Court stated the law as follows:

“It was not indispensable to the right of recovery that appellee should have shown the cause or force which put the barrel in motion or that the appellants were in that respect also negligent, or that the force was not that of nature, as a wind, etc., or of some person connected or not connected with the appellants.” In the case of Economy Light & Power Co. v. Sheridan, 200 Ill. 439, at page 441, it was said:

“There was no direct proof that the deceased came in contact with the electric light wire and that he received an electrical shock which threw him from the pole to the ground, but from the facts and circumstances proven it might fairly and reasonably be inferred that such was the cause of his death. That such was the fact was susceptible of being proven by circumstantial as well as by direct testimony.”

In the case of Rieck v. Great Atlantic & Pacific Tea Co., 268 Ill. App. 613, which was a case somewhat similar to the case at bar, the court in its opinion (Case No. 35,947, not reported in full) said:

“The record discloses that about eleven o’clock on the morning of October 11, 1930, plaintiff was buying some groceries in one of defendant’s Chicago stores. After making her purchases she was leaving the store when, plaintiff contends, she slipped on a green bean or pea which was on the floor, as a result of which she fell and was injured.

“The defendant contends that the evidence fails to show any negligence on its part because the evidence shows the floor was in a reasonably safe condition; that plaintiff was guilty of contributory negligence and that the verdict is excessive.

“ . . . Whether plaintiff was in the exercise of ordinary care for her own safety, and whether the defendant was guilty of negligence which proximately caused plaintiff to slip and fall, were questions of fact for the jury. We are further of the opinion that whether plaintiff was guilty of any negligence in failing to discover the pea or other substance on the floor which proximately contributed to her injury, considered most favorably to the defendant, was a question of fact for the jury. The law does not require that one going into a store to make purchases, such as disclosed by the evidence in the case at bar, should constantly keep one’s eyes on the floor to see whether it is in a reasonably safe condition.”

In the instant case the uncontradicted evidence shows that plaintiff, a woman past middle life, was a customer in the defendant’s store and was engaged in purchasing merchandise in various departments in pursuance of an implied invitation on the part of defendant to patrons of its store.

The evidence further shows that in defendant’s store there were departments for the sale of different commodities, one of which was for the sale of vegetables ; that in order to display the vegetables for sale, one of which was string beans, they had been placed in a hamper or basket which had been piled so full of string beans that they had fallen over the edge of the hamper and on to the floor; that plaintiff had made some other purchases in the store and while walking to another department of the store, she stepped upon one of the string beans, slipped and partially fell, when she was assisted by a clerk who was working in the store; that the accident resulted in a fracture of the bones of her leg, causing her much pain and suffering; that the doctor who treated her testified that the injury caused chronic arthritis and that it is a permanent disability.

A string bean, as everyone knows, is a vegetable which consists of a pod containing beans and has strings on the sides of said pod from which it derives its name and, like most vegetables, it has a water or juice content; that these beans when crushed become a slippery substance and if stepped upon could easily cause a person to slip and fall. That is what we believe happened in the instant case.

The defendant was obligated under the law to use reasonable care to have maintained the aisles of its store in a reasonably safe condition for the safety of its customers and patrons of its store, but this it failed to do, as the reasonable inference is that the string bean upon which plaintiff stepped, had through the negligence of defendant, fallen from an overfilled hamper or basket containing string beans and such negligence on the part of defendant was the proximate cause of the injury to plaintiff.

Counsel for defendant cites Jones v. Kroger Grocery & Baking Co., 273 Ill. App. 183, which is a case somewhat similar to the case at bar, wherein the plaintiff slipped on some leaves of spinach and was injured. The court at page 185, said: “Assuming that the evidence in this record justifies a finding that appellee fell by slipping on the leaves of spinach, and that she was in the exercise of due care for her own safety in so doing, there remains a fundamental question in this case. Does the presence of a small piece of spinach about three inches long with three or four leaves on it, lying on the clean and open floor of a grocery store, nearby where vegetables are kept for sale, in broad daylight, without the owner’s or manager’s knowledge, constitute an unsafe condition for persons in the exercise of reasonable care for their own safety? Is it a trap, pitfall, or other hidden defect such as has been denounced by our courts'? So to hold would be unwarranted by any authority which has come under our knowledge or observation.”

In this case the defendant had knowledge of the presence of the beans on the floor, as a fair inference from the evidence before us is that the beans were on the floor because of the negligence of defendant’s agent in having filled the hamper or basket until the beans fell over the edges and on to the floor. Therefore, the question of notice is lacking in the instant case as the dangerous situation was created by the defendant. Also the question as to the length of time said beans were on the floor unnoticed by defendant is eliminated by the fact aforesaid that the situation was created by the direct negligence of the defendant and was the cause of the accident.

At the conclusion of plaintiff’s evidence and again at the conclusion of all the evidence, defendant made a motion to instruct the jury to find the defendant not guilty, which was denied in each instance by the court.

We further believe that the jury was fully justified in finding by its verdict that the defendant was guilty of negligence as set forth, and that the court erred in setting aside the verdict and entering a judgment against plaintiff.

Inasmuch as the only question involved here is whether or not plaintiff’s evidence is sufficient to sustain the verdict of the jury, and we are of the opinion that it is, there will be no necessity to retry the cause.

For the reasons herein given the judgment of the circuit court entered non obstante veredicto is reversed and set aside and judgment is entered here for the amount set forth by the verdict of the jury, to wit, $1,000, plus interest at the rate of five per cent from July 16, 1937.

Judgment reversed and judgment here.

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


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Lillian A. Muller et al., Appellees, v. The Equitable Life Assurance Society of the United States, Appellant.
    Gen. No. 39,141.
    Opinion filed February 5, 1938.
    Mayer, Meyer, ' Austrian & ÍPlatt, of Chicago, for appellant; Frederic Burnham, Of Chicago, of counsel.

      Ratner, Miller & Ratner, of Chicago, for appéllee Lillian A. Muller. Charles F. Fitzgerald, of Chicago, for appellee Edith Medberry. Nelson Gf. Wbttling, of Chicago, for appellees Milton R. Muller and Edith M. Muller; Owen Ball, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiffs as beneficiaries in a policy issued by defendant upon the life of Harry Muller brought suit to recover $30,000 and interest by reason of the accidental death of the insured; upon trial the jury returned a verdict for defendant; on plaintiffs’ motion the court set this aside and ordered a new trial; defendant filed in this court a petition asldng leave to appeal from this order, which was allowed; additional briefs have been filed and the propriety of the order granting a new trial is now before us.

The sole reason moving the trial court to grant a new trial was apparently a feeling on his part that there had been some misunderstanding between counsel and court in a conference held in chambers where there was a discussion as to the instructions to be given.

The defense was that the insurance policy had lapsed. The defendant had sent to the insured a “lapse notice” suggesting that the insured request a reinstatement of the policy and that if the premium was forwarded with a signed request for reinstatement, the company would reinstate the policy, “provided the evidence of insurability is satisfactory to the Society; otherwise the remittance will be promptly returned.” A check accompanied by a request for reinstatement (not signed by the insured) was received by defendant, but subsequently, on learning that the insured had been seriously injured, it issued its check as a refund of the amount of the check enclosed in the request for reinstatement.

Plaintiffs’ counsel took the position in conference in chambers of the trial judge that the provision in the “lapse notice” that “the remittance will be promptly returned” meant the identical check sent to defendant, and that its check refunding this was not the remittance provided for in this lapse notice. The court indicated disagreement with this. Plaintiffs’ counsel then claimed that the meaning of the word “remittance” was for the jury to determine. Counsel for defendant opposed this, contending it was for the court to construe the meaning of the writing. The court agreed with this but apparently stated that it would permit plaintiffs ’ counsel to argue the point to the jury. Defendant’s counsel then said he would ask the court to instruct the jury that defendant was not required to return the identical check received by it. Plaintiffs’ counsel suggested that defendant’s counsel write out the instruction he wanted, “while we are arguing.” Defendant’s counsel thereupon wrote out in longhand the instruction he wanted and sent it to his office to be typewritten. Plaintiffs’ counsel proceeded then to make his opening argument to the jury and argued that by not returning the identical check it had received, defendant had accepted it in payment of the balance of premium due and therefore could not question any statements as to insurability of Muller. There is some dispute as to whether defendant’s counsel, when he received the typed instruction, handed a copy to plaintiffs’ counsel. The court gave defendant’s instruction telling the jury that defendant was not required to send back the identical check received by it.

Plaintiffs on their motion for a new trial argue that defendant’s counsel was guilty of misconduct in not handing a copy of the instruction to plaintiffs ’ counsel. The evidence as to this is about evenly balanced, but in any event there was no rule at the time this ease was tried requiring either counsel to submit its instructions to the other side. Plaintiffs’ counsel also assert that the court misled them by saying they might argue the meaning of the word “remittance” to the jury but subsequently instructed the jury contrary to the meaning argued by plaintiffs ’ counsel. Under section 67 of the Practice Act, Ill. Bev. Stat. 1937, ch. 110, § 191; Jones Ill. Stats. Ann. 104.067, as it is now it is not the duty of the trial judge to inform counsel on either side of the instructions he proposes to give. We can conceive of no circumstances that would prevent a trial judge from' giving a proper and necessary instruction to a jury. He was not required to discuss the instructions with counsel before he gave them, and his attitude at the time indicated some uncertainty in his mind although inclined to agree with defendant’s contention. A trial judge, even after he has read an instruction to the jury, may change his mind and withdraw it. Chicago & E. I. R. Co. v. Zapp, 110 Ill. App. 553, affirmed in 209 Ill. 339. We see no reason why a trial judge should be bound by a more or less informal and indefinite statement made in conference in chambers.

We are of the opinion the reasons stated by the trial judge for granting a new trial are inadequate and should not have prevailed. The court indicated that in his- opinion the verdict was right. Under such circumstances a new trial should be granted only for grave errors which, had they not occurred, would have resulted in a different verdict. The' triál court should not have set aside a proper verdict because of the unimportant matters of which plaintiffs complained. •

Moreover, we are of the opinion that the record shows there was no liability of defendant on the policy involved, and that defendant’s motion for a directed verdict in its favor should have been allowed.

There is virtually no dispute as to the facts. The policy sued upon was dated November 16, 1932, and quarterly premiums of $155.40 each were due on the 15th of February, May, August and November in each year, with 31 days grace; it contained a provision that after a lapse for nonpayment of premiums the policy might be reinstated upon payment of all overdue premiums, with interest, and production of evidence of in-surability satisfactory to defendant.

The premium falling due November 16, 1933, was not paid, and on or about December 21, 1933, the insured submitted to defendant an application for reinstatement which contained a declaration of his good health, and an application for an extension of time to January 16,1934, to pay the full premium due November 16,1933; at the same time the insured gave defendant $62.16, which was 40 per cent of the premium, which was to be retained as compensation for the extension if the balance of the premium due November 16,1933, was not paid on the extended date, namely, January 16,1934. Defendant reinstated the policy and granted the extension to January 16, 1934.

January 5, 1934, defendant sent the insured a reminder that January 16, 1934, was the last day for payment of the balance of premium due November 16, 1933, and that no further extension of time for payment of that premium could be granted. January 16th came and passed and the balance of the premium due November 16, 1933, was not paid.

A clerk in the office of the soliciting agent of defendant was instructed to call the insured, Muller, about the policy; the clerk, Boyell, called Muller in regard to the policy which had lapsed, to which Muller replied that he knew this but had no money then, although he might have some later.

January 23, 1934, Muller received from defendant a “lapse notice” reminding him that the premium on the policy had not been paid and that if Muller wished to have it reinstated he should fill out the form on the reverse side of the lapse notice and forward it with a remittance to cover the amount due to defendant. The notice also said that this insurance would be safeguarded, “provided the evidence of insurability is satisfactory to the Society.” January 24th Boyell again telephoned Muller, who said he had no money but expected some by the 27th, to which Boyell replied that if it was sent in it would be handled “in the usual way.” January 25th Muller was in Milwaukee and on the evening of that day was seriously injured in an automobile accident.

Muller’s secretary, Mrs. Olson, testified that she first heard of this accident at approximately 4 o ’clock in the morning of January 26th, although she says she did not then know how seriously Mr. Muller was hurt. Mrs. Olson then signed the application for reinstatement of the policy, which was on the reverse side of the lapse notice; this bore the date January 24th, 1934, and the signature, “H. M. Muller”; Mrs. Olson testified that she signed this name; this request for reinstatement contained the usual certificate that the applicant was in good health, had no illness, had not consulted any physician nor been a patient in any hospital or sanitarium; inclosed was a check signed, “Independent Outdoor Poster Adv. Co., By: Anne Quinn, Secy.” dated January 25, 1934, for $94.02. These enclosures were sent by mail to defendant January 26, 1934, in an envelope postmarked at 1 p. m. that day. At the time this declaration of good health was mailed with the check, Mrs. Olson knew that the insured, Muller, was lying injured in the hospital at Waukegan, Illinois.

Defendant mailed its receipt, dated January 27th, stating that it received from Harry Muller $94.02, “Offered for Prem due Nov. 16 — 1933 Pol. 8905717 Subject to Restoration by Society.” The receipt further recites — ‘ Said sum is received only for transmission to the Home Office of the Society in New York for the account of the depositor, and the Society is in no way committed thereby to the acceptance thereof for the purpose offered nor to any action in the premises, and nothing herein or connected with the receipt of said sum shall be held to waive any default in payment of any premium, interest or other sum due, or to extend the time for payment of any premiums, interest or other sum, or in any manner to affect the rights of the Society under any policy or contract of insurance or otherwise. If the said amount be not accepted by the Society for the purpose offered it will be returned to the depositor upon demand.” The check was deposited in defendant’s Chicago bank account and the proceeds were placed in a “Suspense Account.”

The application for reinstatement, with the health certificate, was forwarded to the New York office of defendant, arriving there January 29, 1934. The insured, Harry Muller, died the following day, January 30, as a result of injuries received by him on January 25th.

Defendant first learned of the insured’s death through a telegram sent on the day of his death by Mrs. Olson from Waukegan, Illinois, to defendant’s offices in New York, requesting that forms for proof of death be forwarded; a letter to the same effect was received the following day, January 31. To this, defendant’s New York office replied, after having had word from its Chicago office, that proofs of death would not be issued as the policy had lapsed at the time of insured’s death. It is not claimed that defendant knew, until the death of the insured, that the declaration of good health bearing insured’s signature was not signed by the insured and was not a true representation as to the insured’s condition.

February 8, 1934, defendant sent its check to the' order of Harry M. Muller for $94.02 as a refund of the amount inclosed with the application for restoration and certificate of good health mailed January 26, 1934. This check was returned by the attorneys who had been employed to represent the beneficiaries.

This recital conclusively shows that the policy had lapsed prior to the death of the insured. Muller admitted that it had lapsed in his application for reinstatement dated December 21, 1933, and admitted to defendant’s agent that he knew it had lapsed. Moreover, plaintiffs’ given instructions Nos. 20 and 23 were predicated upon the assumption, as a fact, that the policy sued on lapsed January 16, 1934.

Plaintiffs argue earnestly that defendant by its-acts and conduct waived this lapse and is now estopped to assert it. Before there can be a waiver of a right there must be full knowledge of the facts by the person against whom the waiver is sought and some act clearly indicating the intention to relinquish the right. Seaback v. Metropolitan Life Ins. Co., 274 Ill. 516, 521. Plaintiffs argue that prior to January 16, 1934, by its course of conduct, defendant led Muller to believe that it would not insist upon prompt payment, due January 16,1934. Without narrating the evidence in detail, we are of the opinion it fails to support plaintiffs’ contention. In any event, because defendant was lenient at times with insured, it does not follow that it could not at any time withdraw any privileges and insist upon compliance with the reinstatement provisions of the policy. Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252, is in point. There was abundant evidence that defendant notified the insured and that the insured knew that if the balance of the premium was not paid on January 16, 1934, the policy lapsed on that date. We do not consider the telephone messages by the clerk Boy ell, suggesting that' Muller reinstate the policy, as of any probative effect to the contrary.

Other points are made by plaintiffs, which we have examined but do not consider decisive. Upon the undisputed evidence the trial court could properly have held that the policy lapsed on January 16, 1934, and had not been reinstated at the time of the insured’s death, and that there was no conduct by defendant amounting to a waiver of the lapse of the policy.

In a case involving similar circumstances we held that no recovery by plaintiff could be had. Newton v. Metropolitan Life Ins. Co., 286 Ill. App. 616 (Abst.). We quoted from Miller v. Metropolitan Life Ins. Co., 286 N. Y. S. 126, where an action was brought upon a policy for double indemnity, based on the theory that an expired policy had been reinstated, and the court said: “The documentary evidence disclosed that the payment was made in connection with an application for reinstatement, signed by the deceased, which expressly provided that the policy was not to be deemed reinstated until the application had been favorably acted upon by the home office, and there was no proof of such favorable action.” It was there held that a summary judgment should have been entered in favor of the insurance company. That language fits this case, except that here the application for reinstatement was not, signed by the insured. The trial judge should have directed a verdict for defendant.

For the reasons indicated we hold that the order vacating the verdict and granting a new trial was erroneous. It is therefore reversed and the cause is remanded with direction to enter a judgment upon the verdict.

Reversed and remanded with directions.

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


author: Mr. Presiding Justice Friend

text:
    Chicago City Bank and Trust Company, Plaintiff, v. Elof W. Johnson et al., Defendants. Hannah M. Smith, Appellant, v. Chicago City Bank and Trust Company et al., Appellees.
    Gen. No. 39,607.

      Opinion filed February 15, 1938.
    Rehearing denied and additional opinion filed March 1, 1938.
    Joseph Z. Willner, of Chicago, for appellant.
    Hyman J. Rosenberg and Louis T. Herzon, both of Chicago, for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

■ Hannah M. Smith became the purchaser at a master’s sale held pursuant to the entry of a foreclosure decree. She paid the purchase price in full and procured an order of court approving the sale. The master’s certificate was issued and delivered to her and was recorded in the registrar’s office on the certificate of title. Thereafter, within the term, the chancellor set aside the sale, declared the master’s certificate to be null and void, ordered the master to refund the purchase price, accepted a higher bid made by the nominee of a bondholders’ committee, and confirmed the sale to him in pursuance of a plan for reorganization of the property involved. By this appeal Hannah M. Smith seeks to reverse the order setting aside the sale to her and confirming the sale to the nominee of the bondholders’ committee.

The circumstances of this controversy present an unusual situation. The original decree of foreclosure was entered August 27,1934, but no sale was held thereunder until about two years later, when, pursuant to the filing of a petition by Louis T. Herzon, attorney for a majority of the bondholders, he represented to the chancellor that a plan for reorganization of the property had been formulated by a bondholders ’ committee, which could not become effective until a sale of the premises was had under the decree, and asked for the entry of an order directing plaintiff in the foreclosure suit to institute the necessary proceedings for the sale of the property. Thereupon, July 31, 1936, the chancellor ordered plaintiff to immediately instruct the master in chancery to advertise the premises for sale and to proceed with the sale according to the terms of the decree. The master’s sale was accordingly held and the property was bid in by one Ethel Cooper, stenographer in the office of Herzon, attorney for the bondholders, but her bid was never made good and no portion of the purchase price was paid to the master. After notice to Ethel Cooper and Herzon this sale was set aside and the master was ordered to proceed to again advertise the premises for sale.

A second sale was held October 23,1936, at which the property was sold to Hannah M. Smith, the highest and best bidder, for $8,000. The motion of the purchaser to confirm and approve the sale, made November 9, 1936, was continued several times at the request of Herzon, upon his representation that the bondholders desired to make a better bido for the property. Finally, January 8, 1937, some three and one-half months after the sale was held, the court entered an order finding that the master had in every respect proceeded in due form of law and in accordance with the terms of the decree, that the sale was fairly and properly made, that an appraisement by the Chicago Beal Estate' Board waspresentedin open court showing the premises involved.to.have been appraised.as of November- 14fj 1936, 'for"'$89‘,01'l; that there was presented in open court a statement of the taxes upon the.premises showing $15,972.06 to be due, and ordering the sale approved and confirmed. At the same time the court also entered an order that the petition of certain bondholders, represented by Herzon, to vacate the sale held October 23, 1936, be denied.

Subsequently, January 12,1937, Herzon, as attorney for three individuals designated as a bondholders’ committee, filed a petition to vacate the order of January 8, 1937, approving and confirming the sale to Hannah M. Smith, and asking for approval of a bid made by Otto Koutesky, nominee of the bondholders’ committee, for $16,000. The petition set forth the interest of the petitioners as bondholders; that the fair market value of the premises was approximately $30,000; that the general taxes amounted to some $16,000; that Hannah M. Smith became the purchaser at the sale and had bid in the property at $8,000; that immediately after ascertaining the facts petitioners appeared before the court on November 9th and moved for the vacation of the sale; that petitioners, as a bondholders’ committee, had secured a deposit of bonds and certificates of deposit to the amount of approximately $42,000 out of a total outstanding issue of $54,000, and were authorized to make a bid for the property in the name of the nominee; that January 4, 1937, Otto Koutesky was designated as the nominee of the bondholders’ committee to appear before the chancellor and make a, bid of $20,000 and did in fact appear and make such a bid, but the chancellor refused to accept the bid until the bonds to be applied on the purchase and the cash necessary to take care of nondepositing bondholders was actually tendered in open court; that petitioners were taken by surprise, in having been required to produce the bonds and cash with their bid, and not having the bonds and cash in court, the sale to Hannah M. Smith was approved and confirmed. When this petition was presented to the chancellor January 12, 1937, an order was entered continuing the hearing until January 26th, and on that date the petition was overruled and denied.

February 2, 1937, Herzon again appeared in court as attorney for the bondholders’ committee and asked leave to file another petition to set aside the sale to Hannah M. Smith. Objection to the filing of the petition was sustained by the court and an order was entered again reciting the purchase of the property at the master’s sale by Hannah M. Smith, the confirmation thereof, the subsequent motion of petitioners to vacate the order approving the sale, and the refusal of the court so to do, and also finding that Hannah M. Smith, the holder of the- master’s certificate, had appeared in open court and represented to the chancellor that she had ordered tax bills from the county treasurer and would in 10 days pay the delinquent taxes on the property.

February 8, 1937, Herzon appeared before the chancellor for the third time with cocounsel, representing that he had served notice of the filing of another petition to vacate the order confirming’ the sale to Hannah M. Smith. This petition was similar in form to the other petitions filed by Herzon, except that it set forth that the bondholders’ committee then had on deposit $48,400 in bonds instead of $42,000, and that the property was worth $42,000 instead of $30,000, as set forth in the previous petition. Upon the hearing of this petition the court again found that the property had been appraised by the Chicago Real Estate Board at $29,011. and that the sale to Hannah M. Smith was conducted in good faith and that she had become the purchaser of the premises at the sale in good faith; that the bondholders ’ committee had bid $16,000 for the premises involved, and were ready to pay that sum by applying bonds in their possession in part payment of the bid and sufficient cash to cover costs and the pro rata share to nondepositing bondholders; that the bid of $16,000 was fair, reasonable and equitable, and that it would be to the best interests of all bondholders that the $16,-000 be accepted, approved and confirmed; and the court thereupon ordered, adjudged and decreed that the order of January 8, 1937, approving and confirming the master’s report of sale of October 23,1936, to Hannah M. Smith, be vacated, annulled and set aside; that any and all subsequent orders thereafter entered in connection with the approval and confirmation of the master’s sale be likewise vacated and set aside; that Herzon’s petition of February 8, 1937, should stand as objections to the master’s report of sale and be accordingly sustained; that the sale of the premises to Hannah M. Smith for $8,000 be set aside, vacated and annulled; that the master’s certificate of sale theretofore executed and delivered to Hannah M. Smith and recorded in the registrar’s office on the certificate of title, be declared null and void and of no effect, and all rights and interests acquired thereby be terminated and canceled; that the master in chancery be directed and authorized to forthwith restore to Hannah M. Smith $8,000, upon obtaining from her the necessary quitclaim deed or release or any other instrument evidencing her release of title and interest in the premises. The court thereupon accepted the bid of Otto Koutesky for $16,000, made in open court, and the premises were sold to him for that sum and the sale approved and confirmed.

In justification of the chancellor’s last order, setting aside the confirmation of the sale to Hannah M. Smith, counsel for the bondholders’ committee first argue that the record of an order, judgment or decree is under the control of the court during the term at which it was entered. This may be conceded to be the general rule of law, but it has certain limitations applicable to the circumstances of this case. The authorities are in ae-cord in holding that sales by masters are not sales in a legal sense until they are confirmed; that the accepted bidder acquires no independent right to have his purchase completed, but remains only a preferred proposer until a confirmation of the sale by the court; that confirmation is official consent, and the court being in fact the vendor may consent or not in its discretion. (Levy v. Broadway-Carmen Building Corp., 366 Ill. 279; Hart v. Burch, 130 Ill. 426; Jennings v. Dunphy, 174 Ill. 86.) The authorities are also in accord in holding that when a sale has been fairly made and confirmed, and all parties in interest had an opportunity to bid on the property at the sale, neither inadequacy of price nor offers of better prices, nor anything but fraud, accident, mistake or some other cause for which equity would void a like sale between private parties, will warrant a court in voiding a confirmation of the sale or in opening the latter and receiving subsequent bids. It was expressly so held in Morrison v. Burnette, 154 Fed. 617. In that case the court characterized this rule as being “so firmly established that it is no longer debatable,” and stated the cogent and all sufficient reason for it to be that “judicial sales would become farces, and rational men would shun them- and refuse to bid, if after the confirmation unsuccessful bidders or dissatisfied litigants could avoid them and secure new sales by offers of higher prices, when they thought the purchase a fortunate one, and thus secure the profits in that event, and leave the buyer to suffer the losses if the property depreciated in value or the purchase was unwise.”

Under the circumstances it is beside the question to argue that the court had jurisdiction within the term to set aside the sale. The question of jurisdiction may be conceded, but whether the-chancellor abused his discretion to set aside an executed sale, even though within the term,, presents an entirely different issue. A sale cannot arbitrarily be set aside except for good cause, and by good cause is meant some cogent reason, such as fraud, accident, mistake or collusion, generally recognized as an equitable ground for setting aside an order. The mere receipt of a higher bid by the bondholders, who had an opportunity to bid in the first instance, is not a sufficient reason for voiding a sale, especially where the court has repeatedly found that it was made in good faith and pursuant to an appraisal by the Chicago real estate board, which the court approved.

In Straus v. Anderson, 366 Ill. 426, the court discussed the two aspects of judicial sales and characterized the setting aside of an executed sale and the opposition to the approval of a purported sale, requiring confirmation of the court for its validity and finality, as falling into different classifications. With reference to the first character of proceeding, namely, an executed sale, it was said (p. 431): “In the first mentioned class the sales have been completed, generally, either by reason of the fact that no approval of the court is required, or where such approval, being requisite, has been obtained. Sales grouped within this category will ordinarily not be set aside because of inadequacy of price in the absence of proof of fraud or some irregularity in the sale. It is out of this division of sales from which the principle emerged that stability should be given judicial sales, and that courts would not void the same in the absence of fraud or some irregularity in the proceeding attendant upon the sale. In those cases the buyer has an interest or right in the property.” (Italics ours.)

With reference to the second category of cases discussed, namely, where opposition to the approval of the sale is made, the court discussed the matter as follows (p. 432): “In the second division the court, in legal contemplation, is the seller. The officer conducting the sale acts as the agent of the court in offering the property for sale. His declaration striking off the property to the highest bidder carries with it no interest or title to the property. The bid is only an offer to buy. Until, and unless, the court confirms the report of sale made by the officer conducting the sale, there is no sale. In the latter character of sales the chancellor has a broad power in his supervision made un-, der his direction and may, acting in his judicial discretion, confirm, or disapprove any such sale. (Miller v. Miller, 332 Ill. 177; Hart v. Burch, 130 id. 426.) - In the latter type of sales the court may refuse to confirm the sale merely because of the inadequate price for which the premises are struck off. These principles are recognized in Levy v. Broadway-Carmen Building Corp. (366 Ill. 279) where numerous authorities bearing upon the subject are reviewed.” We take this to mean that in the case of executed sales there is no discretion in the chancellor to set the sale aside except upon some well recognized equitable ground, such as fraud or irregularity, and the discretion which counsel for the bondholders’ committee say the chancellor had exists only in that class of cases where opposition is made to the approval of the sale, and cannot arbitrarily be exercised except for good cause in the ease of executed sales.

During the pendency of this appeal Hannah M. Smith’s counsel cited by way of additional authority the recent case of Gianz v. Takien, 293 Ill. App. 74, in which the third division of this court reversed an order of the chancellor setting* aside a master’s sale. That case is not applicable to the circumstances of this proceeding, however, because the master’s sale in that case had not previously been confirmed.

The sale to Hannah M. Smith was in every sense an executed sale. It had been approved. The court had subsequently reaffirmed that it was made in good faith. pursuant to an accepted appraisal of the property for $29,000. The purchase price of $8,000, when added to the delinquent taxes aggregating some $16,000, made the bid substantially $24,000. This as against an appraisal of $29,000 would not subject the bid to the criticism that it was so grossly inadequate as to constitute fraud. Moreover, the purchase price had been paid the master’s certificate had issued and been recorded and the purchaser said in open court that she had ordered the bills for delinquent taxes and would pay them within a week or 10 days. In all the petitions filed there is no charge of fraud, irregularity, mistake or collusion. The only reason urged for accepting the bondholders’ bid is that it would be to the interest of the bondholders to sell the property to their nominee because it was in pursuance of a plan for reorganization to which some 90 per cent of the bondholders had agreed. All these facts were well known to the bondholders when the sale was made, and they had full opportunity to bid. In fact Ethel Cooper did purchase the property in the first instance on behalf of Herzon, who represented the bondholders, but failed to make good her bid. These facts were all known to the court and we cannot find anything in the record to justify the exercise of a discretion by the chancellor, after twice denying the bondholders’ petitions to eventually set aside the sale.

The remaining contentions urged by the bondholders’ committee for sustaining the court’s order are based upon the erroneous premise that the chancellor “has refused to approve and confirm the sale, as in the case at bar.” These contentions do not conform with the facts of the case, because the chancellor not only approved and confirmed the sale but on two subsequent occasions fortified his action by finding that the sale was made in good faith and denying petitions to vacate the order of approval.

For the reasons set forth, we are of the opinion that the chancellor erred in entering the order of February 15,1937, vacating the order approving the sale to Hannah M. Smith, and that order is accordingly reversed.

Order reversed.

Scanlan and Sullivan, JJ., concur.

Additional.Opinion on Petition for Rehearing.■

Since the filing of the opinion in this cause petitioners, Julius Rutz, Michael A. Howard and Jack Delle-field, individually and as bondholders constituting the bondholders’ protective committee, have petitioned the court for a rehearing, and the principal ground urged therefor is.that neither petitioners nor their attorney of record nor any of the bondholders were present at the sale of October 23, 1936, and being parties in interest “have not had an opportunity to bid at said sale.” This question is raised for the first time on petition for rehearing. In their brief on appeal counsel for petitioners made and argued only the three following points:

1. It is a general rule that during the term at which an order, decree, or judgment is entered the court has control over the record and for cause appearing it may amend its judgments, orders or decrees or set them aside.

2. A chancellor has broad discretion in approving or disapproving a master’s sale,' and such discretion, unless abused, will not be interfered with by a court of review.

3. Where a sale is subject to the approval of the court, the officer conducting the sale, acting as agent of the court in offering the property for sale, the bidder acquires no interest or title to the property, and the court may refuse to confirm the sale merely because of the inadequate price for which the premises were struck off.

None of these propositions have any relation to the present contention. The law is well settled that the parties cannot for the first time on petition for rehearing raise questions which were not urged or argued on appeal. (Welch v. City of Chicago, 323 Ill. 498, 508.)

Moreover, if the question had been raised it would have been overruled because it clearly appears from the record that after the motion to approve the sale held on October 23,1936, was made, the court continued the matter to November 9, 1936, from November 9, 1936, to November 19, 1936, from November 19, 1936, to December 18, 1936, and from December 18, 1936, to January 8, 1937, for the specific purpose of giving the bondholders an opportunity of making a better bid on the property than the one made by Hannah M. Smith. During this period of over two months the bondholders did not see fit to make a better or higher bid, and the court ultimately approved the sale. Under the circumstances, it is idle for the petitioners to contend that neither they nor their attorneys nor any of the bondholders had an opportunity to bid at the sale. They were given ample opportunity to present a better bid and either failed or neglected to do so. The petition for rehearing is therefore denied.

Petition for rehearing denied.

Scancan and Sullivan, JJ., concur.


author: Mb. Justice Scanlan

text:
    City of Chicago, Appellee, v. Alfred O’Connor, Appellant.
    Gen. No. 39,288.

      Opinion filed February 15, 1938.
    Alfred O’Connor, pro se; Thomas F. Allman, of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellee; Michael L. Bosinia and Mark J. McNamara, Assistant Corporation Counsel, of counsel.
    Hiram T. Gilbert, of Chicago, amicus curiae.

   Mb. Justice Scanlan

delivered the opinion of the court.

An action brought by the City of Chicago, in the Municipal Court of Chicagu (hereinafter called Municipal Court), for the recovery of a penalty for a violation of section 7 of the Uniform Traffic Code of the City of Chicago. The trial court found defendant guilty and assessed a fine of three dollars. Defendant appeals.

The complaint charged that defendant, “whose address is 9207 Commercial Ave.,” Chicago, on January 21, 1936, violated said section 7 by failing to obey “traffic sign or signal.” Defendant, at the time of the violation, was handed a “summons slip” by the police officer, directing him to report at Room 810 City Hall within 48 hours, which room is called, by defendant, the “Cafeteria Branch.” Defendant disregarded the “summons slip,” and a summons, returnable to the First District of the Municipal Court, issued. On the return day defendant appeared in person in the Traffic-Court, located in the First District, where a complaint was filed against him, and the hearing of the cause was set for February 14,1936.

Defendant, on February 7, 1936, filed a petition, which states, in substance, that “the offense for which he was arrested and received the summons . . . was committed at 89th Street and South Chicago Avenue in the City of Chicago . . .; that defendant resides in the Second District of the Municipal Court . . . and was arrested ... in the Second District . . . and charged with the alleged offense” in that district; “that . . . there was then and is now, a judge of the Municipal Court . . . holding Court in the Second District, Branch 38 of the Municipal Court . . ., at 8855 Exchange Avenue, . . . and that the aforesaid cause should be tried in the Second District . . .; that said cause ought not to be had or maintained in the said First District for that the said Court is without jurisdiction . . .; that Section four of the Municipal Court Act reads . . . :” (Here follow the boundary limits of the Second District as fixed by section 4.) The petition further alleges that 89th street and South Chicago avenue, and Branch 38 are within that district. The stenographic report shows that the petition was overruled.

The common law record shows that defendant waived a trial by jury and the cause was submitted to the court. After judgment was entered defendant filed a written motion to vacate, which sets up, in substance, the averments contained in the petition, and states that after receiving the “summons slip” defendant wrote two letters to the Chief Justice of the Municipal Court demanding and requesting that the cause be set for trial in the Second District because the violation happened in that district and defendant resides there; that the Chief Justice notified defendant, in writing, that the case had been set for hearing in Boom 800,1121 South State street, at 9:30 a. m., February 7, 1936, “and a summons to that effect is enclosed herewith;” that the said summons was issued by the clerk of the Municipal Court and it notified defendant “to personally appear before the Traffic Branch of The Municipal Court of Chicago, located at Boom 800,1121 S. State St., at 9:30 A. M. on February 7, 1936;” that at the time of the trial one of the judges of said court was hearing cases in the Second District. Defendant also filed a “Motion for New Trial,” which contains, in substance, the averments set up in his petition and his written motion to vacate, and alleges that the Chief Justice lacked authority to order the cause tried in the First District. The court denied both motions.

After the City had concluded its evidence as to the alleged violation, defendant, a practicing lawyer, stated that he stood mute as to the charge, but that he denied the jurisdiction of the First District court to try the case. It appears from the stenographic report that defendant and certain other lawyers practicing in the Second District desired to have the “jurisdictional plea” interposed by defendant passed upon by this court, hence this appeal.

' Defendant contends that the establishment of the “Cafeteria Court” and the-practice followed in connection therewith is an unlawful delegation of judicial powers and an abuse of the rights of the citizen. The City contends that the practice followed was in accord with the provisions of Buie 10 of the court, and it argues that the rule was adopted to aid alleged violators of the traffic law; that it in no way prejudices their rights, but, on the contrary, is helpful to them; and facts and statistics are submitted to us in support of this argument. It is a sufficient answer to defendant’s contention to say that the sole question before us is, Had the trial court, sitting in the First District, jurisdiction to try defendant? Defendant ignored the so-called “summons slip” but appeared in the Traffic Court, located in the First District, after a formal summons, returnable to that court, had issued. In defendant’s original brief he states that “the ‘Cafeteria Court ’ and its procedure is not in any way pertinent to the issue before the Court.”

The instant case is a quasi-criminal action. The Municipal Court is given jurisdiction of such actions and they are designated in the act as cases of the fifth class. Section 29 of the Municipal Court Act provides: “Cases of the fourth class mentioned in section two (2) of this act shall be brought and prosecuted in the district in which the defendant, if there be but one defendant, or one of the defendants, if there be more than one defendant, resides or is found .... When, upon the complaint of any defendant, it shall be made to appear to the Municipal Court in any district that the suit has been improperly brought therein, the court shall not be required on that account to dismiss the suit, if the Municipal Court in any district could properly have jurisdiction thereof, but in such case the court may cause such suit to be transferred to the proper district and the court in the district to which the same is transferred shall proceed therewith as if the same had been originally commenced in said district. ...” Section 49 provides: ‘ ‘ The practice in the Municipal Court in cases of the fifth class shall be the same, as near as may be, as is herein prescribed for civil cases of the fourth class . . . .”

Defendant contends that his petition is “a plea in bar to the jurisdiction of the Court,” located in the First District; that “the question involved in this appeal is whether a person who resides in, is arrested and receives a summons in the Second District of the Municipal Court of Chicago, for a violation of a city ordinance committed within said district, is entitled to be tried in the said Second District, under the Municipal Court Act”; that “the question ... is not a mere matter of practice but is one of statutory regulation governing territorial boundary lines with relation to jurisdiction.” The City contends that a matter of practice, only, is involved in this appeal. It further contends that “by the terms of Section 49 the extent to which the practice in fourth class cases should be applicable in quasi-criminal actions was only ‘as near as may be,’ the meaning of which was to authorize the judges in such cases to disregard any provision of Section 29 which, in their opinion, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, and that accordingly they had the right to provide for the trial of the defendant’s case in the First District.”

Hiram T. Gilbert, the father of the Municipal Court Act, was permitted, as amicus curiae, to file a brief in this cause. He states that the phrase, “as near as may be,” in section 49 and other sections of the act, was taken from an Act of Congress passed in 1872, which provided that the practice in the Federal courts in common law cases should conform “as near as may' be” to the practice in the State courts, and he cites Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, where the court, in construing that phrase in the aforesaid act, said (pp. 300-301): “The conformity is required to be ‘as near as may be’ — not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose: it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals.” In support of the argument that the legislature and the legal voters of Chicago intended to vest in the judges of the Municipal Court a discretion which would enable them to vary from prescribed methods of procedure, our attention is called to a number of important sections of the Municipal Court Act in which the phrase in question is used, viz, section 50b, relating to proceedings to prevent the commission of crimes; section 50c, relating to preliminary examinations; section 50d, relating to search warrants; section 48, regulating the practice in the Municipal Court in relation to attachment, garnishment, replevin, distress for rent, and forcible detainer actions, and section 48a, regulating the practice in trials of right of property.

Defendant contends that the provision in section 29 “that suit shall be brought and prosecuted in the district in which defendant resides or is found, and that where a suit is not brought in the proper district, it shall be transferred to a district of the Municipal Court which could properly have jurisdiction thereof, upon the complaint of any defendant,” is a mandatory one, and that the phrase in question was not intended to permit the judges to adopt a rule which would, in effect, change that provision.

Section 49 provides that “the practice ... in cases of the fifth class shall be the same, as near as may be, as is herein prescribed for civil cases of the fourth class . . . .” A reference to certain other sections will show that the legislature and the legal voters of Chicago intended to vest in the judges of the Municipal Court a discretion which would enable them to vary from prescribed methods of practice.

Section 19 of the act provides that, with certain specified exceptions, the practice shall be as near as may be that which may from time to time be prescribed by law for similar suits or proceedings in the Circuit Courts, but it further provides that the Municipal Court shall be the sole judge of the applicability of the proceeding’s of the court and the rules of practice prescribed by law for similar cases in the Circuit Courts, and that the decisions of the Municipal Court in respect thereto shall not be subject to review upon an appeal or writ of error except when such review is necessary to prevent a failure of justice. No such claim can be made here. In Ptacek v. Coleman, 364 Ill. 618, the Supreme Court, in sustaining the validity of section 19 and the power of the judges of the Municipal Court to regulate its practice by rules, said_(pp. 625-626): “Manifestly, this provision of section 19 and all other practice provisions of the Municipal Court act are a part of the scheme for such local municipal government provided for by the constitutional amendment. It is equally obvious that this particular provision is embraced within the terms of the amendment authorizing the legislature to pass any law (local, special or general,) providing such a scheme. The provision was ratified by a referendum, ■ as provided by the amendment, and its validity cannot be doubted.” The court further held (p. 623) that “the Municipal Court act is a special law; the Civil Practice act is general,” and that the latter act does not apply to the practice provisions of the Municipal Court Act. Section 20 of the act, as amended in 1931, provides: That the judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. . . . Amendments and changes of said rules may be made from time to time by like orders.” At the time of the enactment of the Municipal Court Act, section 20 contained the following proviso: “Provided, however, that no such rule or rules so adopted shall be inconsistent with those expressly provided for by this act. . . . ” It is very significant that this proviso was eliminated by the amenda-tory act of 1931. As the Supreme Court states in the Ptacelc case (p. 625): “It is to be noticed that by the amendment of section 20 in 1931 the power to adopt rules in lieu of the practice provisions contained in the act is specifically delegated to the court. ’ ’ Section 8 of the act provides that the judges ‘ ‘ shall have power and it shall be their duty to adopt or cause to be adopted all such rules and regulations for the proper administration of justice in said court as to them may seem expedient.” Section 52 provides: “That if the method of procedure in any case within the jurisdiction of the Municipal Court is not sufficiently prescribed by this act, or by any rule of court adopted in pursuance hereof, the court may make such provision for the conducting and disposing of the same as may appear to the court proper for the just determination of the rights of the parties.”

Section 4 divided the court into five districts, the First, Second, Third, Fourth and Fifth, and specified the boundary lines of each district. It further provided: “The number and boundaries of the districts may be changed, from time to time, by orders signed by a majority of the judges of the Municipal Court, and spread upon the records thereof, which orders shall be published for three successive weeks, once in each week, in some newspaper of general circulation in the City of Chicago, and which shall take effect respectively within thirty days after the last publication thereof: Provided, however, no such change in the number or boundaries of districts shall become effective unless the order therefor shall have been, approved by the City Council of the City of Chicago. As many branch courts shall be held in each district as may be determined by the chief justice of said Municipal Court to be necessary for the prompt and proper disposition of the business of said court: Provided, however, that at least one branch court shall be held in each district. Such branch courts may be given such designation by number or otherwise as may be determined by the chief justice.” The first annual report of the Municipal Court of Chicago for the year December 3, 1906, to November 30, 1907, states: “The division of the city into so many districts soon proved to be an impractical arrangement, and, in accordance with a provision contained in the Municipal Court Act, the judges of the court, on June 10th, 1907, entered an order abolishing the Third, Fourth and Fifth Districts, and rearranging the boundary lines of the First and Second Districts, which order was approved by the City Council on June 17th, 1907, and became effective July 15th, 1907.” No change in the districts has since been made. Under section 4 the judges of the court, with the approval of the city council, have the power to abolish the Second District. There are many branch civil courts and criminal courts in the First District.

Section 1. of the act now provides that the court “shall be a court of record, . . . the jurisdiction of which shall be exercised in the manner hereinafter prescribed by branch courts, each of which shall exercise all the powers in this act declared to be vested in the Municipal Court.”

We find force in the following statement in the brief of the amicus curies: “The establishment of the Municipal court with an organization, jurisdiction and practice different from the organization, jurisdiction and practice of other courts was a new scheme, largely experimental. It could not be foreseen how the provisions of the Act would operate in practice. The necessity of providing for changes in the methods of procedure was apparent. As changes by legislative action required for their validity the consent not only of the legislature but also of the legal voters of the city at special or general elections, which might be a slow and expensive process, it was wisely concluded to vest in the judges a discretion which would enable them to vary from prescribed methods of procedure ‘which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice. ’ ”

In defendant’s reply to the brief filed by the amicus curiae it is suggested that the City has not presented to this court any rule or order of the Municipal Court prescribing that cases like the instant one shall be tried in the First District, and we should assume, therefore, that there is no such rule or order. It is a sufficient answer to this contention to state that defendant’s so-called plea in bar is based upon the theory that the act confers upon the Second District sole jurisdiction to try a case like the instant one, and that the only way in which the judges of the Municipal Court could give-jurisdiction to the First District to try such a case would be to abolish, with the concurrence of the city council, the Second District. Defendant’s position, in the lower court and here, is that the legislature did not vest in the judges of the Municipal Court authority to abrogate or modify, by rules or orders, the provisions of sections 4 and 5 of the act. The burden was upon defendant to sustain his plea of a want of jurisdiction in the court that tried him. We note in defendant’s brief the following: “The ‘rules’ of the Municipal Court or of its Chief Justice are forcing the people to come to some specialized court, no matter where the case should be tried under the Municipal Court Act. ’ ’ As the amicus curiae contends, this appeal involves a question of practice rather than of jurisdiction. Section 51 of the act provides: “That both in direct and collateral proceedings the same presumptions shall be indulged with respect to the jurisdiction of the Municipal Court over the subject-matter of suits and over the parties thereto, and with respect to the regularity of the proceedings of' said Municipal Court, as are indulged with respect to the jurisdiction and regularity of the proceedings of circuit courts in like cases.” (See Level v. Goosman, 285 Ill. 347, 350, 351.)

After a careful consideration of the question involved, we have reached the conclusion that the Traffic Court, located in the First District, had jurisdiction to try the instant cause.

The motion of the City to dismiss the appeal, reserved to hearing, will be denied.

The judgment of the Municipal Court of Chicag’o is affirmed.

Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice Soanlan

text:
    Mary Wolever, Appellant, v. Curtiss Candy Company et al., Appellees.
    Gen. No. 39,365.

      Opinion filed February 15, 1938.
    John E. Northup and Adler & Adler, both of Chicago, for appellant.
    Irwin N. Walker, of Chicago, for certain appellées ; Irwin N. Walker and John Porter, of Chicago, of counsel.
    Wilson & McIlvaine, of Chicago, for certain other appellees; J. F. Dammann and Kenneth Montgomery, both of Chicago, of counsel.
   Mr. Justice Soanlan

delivered the opinion of the court.

In an action of fraud and deceit, at the conclusion of plaintiff’s evidence, the trial court, on motion of defendants, instructed the jury to find all of the defendants not guilty. Plaintiff appeals from a judgment entered upon the verdict.

The first additional count of the complaint alleges that on and before March 20, 1934, Franklin H. Wol-ever, the husband of plaintiff, was in the employ of defendant Curtiss Candy Company as a consulting engineer; that while engaged in the performance of his duties, and in the scope of his employment, a truck, operated by defendant Torbiek, was backed against him, causing a fracture of the pelvic bones, the back bone, ribs, lacerations and rupture of the liver, and shock, all of which caused his instantaneous death; that Curtiss Candy Company was operating under the Workmen’s Compensation Law of Illinois and as a result of the accidental injury plaintiff was entitled to receive compensation under that law in the amount of $4,000; that defendant Karl Keefer was vice president of Curtiss Candy Company, defendant H. J. Krieger, general superintendent, and defendant Charles Hill-man, supervisor of traffic and in charge of trucks; that at the time of the death, immediately thereafter, and long before the cause of death was certified to the coroner as being due to heart disease alone, Keefer, Krieger and Hillman knew of the occurrence of the accident; that Hillman saw it, and Keefer and Krieger were informed that the truck had backed into Wolever at the loading platform and that the body had fallen to the ground when it was released by the forward movement of the truck; that defendant Torbiek knew of the accident whereby the decedent was killed, and was under duty, because of an ordinance of the City of Chicago, to report it to the police department; that defendant Maryland Casualty Company was an insurer of Curtiss Candy Company against losses under the compensation law and was primarily liable to plaintiff; that by contract and custom Maryland Casualty Company investigated all claims and caused to be filed with the Illinois Industrial Commission on behalf of Curtiss Candy Company reports of all accidents; that soon after the accident'Maryland Casualty Company, through its agent, was furnished with signed statements of several workmen of Curtiss Candy Company describing the accident as eyewitnesses; that Maryland Casualty Company, “well knowing that for the purpose of cheating and defrauding the plaintiff the true facts and circumstances surrounding the death of said Wolever had been wilfully, maliciously and intentionally concealed” from the coroner, the police department, the health department, and plaintiff; and nevertheless “contriving and wickedly designing to assist in cheating and defrauding plaintiff out of her right to recover under the Workmen’s Compensation Laws of Illinois, wilfully, maliciously, and fraudulently permitted "the plaintiff to continue in her ignorance of the true cause of hér husband’s death and to bury him believing that he had come to a natural death by heart trouble, and thus escape payment to the plaintiff for its liability”; that Curtiss Candy Company maintained a first aid room in its plant, in charge of defendant Marie Grill, who had been employed as such for about 10 years and whose duty it was to administer first aid to all employees of Curtiss Candy Company who might be injured, and to file a history including the causes of all cases of accidental injury or death sustained by employees of Curtiss Candy Company while in the course of their employment, ■ but that she was acting as a subordinate of Krieger; that it was the duty of Krieger and Marie Grill to ascertain the nature of the accident and the cause which resulted in the death of Wolever, and to truthfully report it in writing to the Industrial Board of the State of Illinois; that Wolever, immediately after the accident, was taken to the first aid room; that Gill, after a brief examination, found him dead, and summoned defendant Dr. Greene by telephone; that the latter appeared a few minutes later on behalf of Maryland Casualty Company and Curtiss Candy Company and pronounced Wolever dead; that Gill and Greene pretend-edly undertook to determine the actual cause of death and while so doing Keefer, Krieger, and an employee, Albert Lichardt, now deceased, came in and informed Gill and Greene that it had been reported that Wolever had met with an accident, another employee of Curtiss Candy Company informed them that he had seen a truck strike Wolever, and an employee of Lichardt informed them that an accident had been reported to Lichardt’s office; that Gill, knowing Wolever was dead, but contriving and wickedly designing to assist in cheating, defrauding and tricking plaintiff out of her right to recover compensation, and in order to conceal knowledge of the accident and cause of Wolever’s death, and to keep the police department and the coroner from being called in to investigate the cause of said death, knowingly, wilfully, corruptly, fraudulently and maliciously caused the police department to be notified that someone was merely sick and not dead; and Greene, contriving and wickedly designing to conceal and cover up the knowledge of the accident and the cause of death, “knowingly, wilfully, corruptly, fraudulently and maliciously failed to report” the death to the said authorities; that defendants caused and procured a certificate of the cause of death to be made out and reported by Abel Sandahl, “the family physician of Wolever,” in which the death was falsely ascribed to heart disease, with no reference to accidental causes; that defendants procured the certificate from Sandahl by knowingly, wilfully, fraudulently. corruptly, maliciously and falsely withholding from him, all the facts and circumstances of the accident, and informing him that Wolever had dropped dead from heart disease, far from the place where he was killed; that plaintiff was lulled into accepting Dr. Sandahl’s statement through her trust in him, and by the high regard expressed by Curtiss Candy Company and its officers for.her husband, and their sympathy and solicitude ; that believing the cause of the death of her husband to be heart disease, plaintiff caused the body to be interred, on March 23, 1934; that rumors and information came to plaintiff on April 2, 1934, and on April 4, 1934, the body was exhumed, the coroner performed an autopsy, and determined that Wolever came to his death by reason of violence; that plaintiff filed a compensation claim before the Industrial Board and was allowed $3,250, which covers only the amount allowed by statute for loss of support; that upon the death of Wolever, it was the duty of Curtiss Candy Company to notify the Industrial Board in writing, and of Curtiss Candy Company and the other defendants to notify the police department and the coroner in order that the coroner might act in accordance with the law; that it was the duty of Maryland Casualty Company to send, immediately, a truthful report of the accident to the Industrial Board; that (par. 15 of complaint) defendants, well knowing the foregoing facts and circumstances, but contriving and wickedly designing, nevertheless, to cheat, defraud and trick plaintiff out of her right to recover from Curtiss Candy Company and from its insurer, Maryland Casualty Company, under the Workmen’s Compensation Law of the State of Illinois, for the death of her husband, knowingly, wilfully, corruptly, fraudulently and maliciously failed to notify said police department of Chicago, said coroner' of Cook county, said Industrial Board, and plaintiff of the facts and circumstances relating to the cause of Wolever’s death, and knowingly, wilfully, corruptly, fraudulently and maliciously concealed the same from said police department, from said coroner, from said Industrial Board and from plaintiff; that by reason of the wrongs to which plaintiff was subjected, as aforesaid, it was necessary for her to expend divers sums of money for the disinterment of her husband’s body, for the performance of a post-mortem and the determination of the actual cause of his death, and for his reinterment; that the grief and shock which she had sustained by her belief, falsely induced, as aforesaid, that her husband had died from the inevitable effect of disease, were greatly intensified and aggravated by the disclosure that his life had been suddenly cut off, and he had come to an untimely end by accident and violence, and that the actual cause thereof had been so successfully concealed from her, as aforesaid, as to wholly deprive her of any right of recovery for her husband’s death under said Workmen’s Compensation Law; that in order to establish such right it was necessary to carry on an investigation to ascertain the cause of his death, and to establish her rights to recover therefor before said Industrial Board, which she did at great expense for legal and other assistance: that she was also greatly shocked by the fact that her husband’s employers, who had expressed their great appreciation for him and their solicitude for her own welfare and that of her family, had participated in a plot to defeat her right to recover for her husband’s death; that by reason of the wrongs to which she was subjected her health was greatly impaired and her nervous system shocked and exhausted, and she became so ill and disordered in mind and in body as to require-the services of a physician from thence hitherto, and that she will continue to require medical care and attention for a considerable time; that her nervous system has continued to be highly unstable and greatly disordered, resulting in great mental and physical pain and anguish; that her physical disabilities and impairment of health, caused as aforesaid, have prevented, and will prevent, her from enjoying the pleasure of good health and well being, and that she has been compelled to pay out, and to become liable to pay out, large sums of money in and about endeavoring to become healed of her said infirmities, caused and received as aforesaid; to the damage of the plaintiff in the sum of $15,000.

In the second additional count plaintiff adopts all of the paragraphs of the first additional count except paragraph 15, and in lieu thereof alleges that defendants, well knowing all of the facts and circumstances, but contriving and wickedly designing nevertheless to cheat, defraud and trick plaintiff out of her right to recover from the said Curtiss Candy Company and from its insurer, Maryland Casualty Company, under the Workmen’s Compensation Law of the State of Illinois, for the death of her husband, knowingly, wilfully, corruptly, fraudulently and maliciously combined, confederated and conspired among themselves to keep and prevent the police department of Chicago, the coroner of Cook county, the Industrial Board, and plaintiff, from investigating and learning the actual cause of Wolever’s death, and to conceal from the police department, the coroner, the Industrial Board, the health department of the City of Chicago, and plaintiff, the actual cause of Wolever’s death, and falsely, wilfully, corruptly, and maliciously to make it appear to the police department, the coroner, the Industrial Board, the health department of the City of Chicago, and plaintiff, that Wolever had died solely from heart disease, and not from any external force and violence whatever. To the damage of plaintiff, both actual and exemplary, in the sum of $15,000.

When the motion for a directed verdict was presented to the trial court, the latter made the following statement to the jury:

‘1 Gentlemen of the jury, the plaintiff has rested and the defendants have moved for a directed verdict, and in accordance with that motion the Court will instruct you to find the defendants not guilty. . . .

“While we are waiting I think it is fair that the Court should make a statement for the benefit of the jury, which has sat here now for a full week.

“This, gentlemen of the jury, is a case different in character from the average case involving injuries and death. This is not a lawsuit for the wrongful death of Mr. Wolever. There is no recovery for that sought or asked for here by the plaintiff for Mr. Wolever’s death.

“This lawsuit is based upon the allegations of the plaintiff that the defendants conspired together to keep from Mrs. Wolever information that her husband’s death occurred as a result of external violence and that as a result of the keeping of that information from her she suffered certain injuries.

“If I misstate this in any way please feel free to correct me.

“Mr. Northup [attorney for plaintiff]: Not only as conspirators but as joint feasors.

“The Court: Individually, jointly and as conspirators.

“Mr. Northup: Yes.

“The Court: That means, gentlemen of the jury, that there is a burden upon the plaintiff, as in every case. It is the law in the State of Illinois that a plaintiff must prove his case by a preponderance or a greater weight of the evidence before he has a right to any recovery against a defendant; so that the burden is upon the plaintiff in this case.

“First, she had to prove that Mr. Wolever did die as a result of external violence and not from heart disease. She had. to prove, secondly, that the defendants, and each of them or all of them, knew that he died as a result of external violence and not from heart disease. She had to prove, thirdly, that the defendants wilfully, intentionally and maliciously withheld that information from Mrs. Wolever; fourthly, that as a result of withholding that information from her that she suffered injury. Of course, they have not proven that he did not die from heart disease. They have not proven, if he did die from something other than heart disease, that the defendants, or any of them, wilfully withheld information, or that they ever knew it. And fifthly, they have not proven that she was injured by reason of their having withheld that information. There is, really, no occasion for the Court saying this, gentlemen, in the first place. I am not called upon to tell you nor to tell the lawyers anything after directing a verdict because, as a rule, that is all there is to it; but I feel that after twelve laymen have given their time here, sitting here for six days, they are entitled to know what has been going through our minds and why we feel we must arrive at the conclusion we have arrived at, and, further, because the lawyers who have been before me have conscientiously endeavored to bring before the Court and jury everything that was available to them. They have tried their level best and it is not their fault that the proof is lacking. It is not their fault that something impossible exists here.

“It is .my judgment, which is the missing proof, that Mr. Wolever did not die from anything but heart disease, for the réason that the only evidence that is available to them is something that developed two weeks or thereabouts after he was buried. Obviously then there was a difference in the condition of the body. He was embalmed and there was no blood in iiis system when these other examinations were made. There is not a single syllable of testimony of any hemorrhage. Not a bit. Of necessity, Dr. Moore, if he testified, would have to testify that he died of hemorrhage.

“Mr. Northup: Doctor who?

“The Court: Dr. Moore.

“Mr. Northup: No, he would not have testified he died of hemorrhage.

“The Court: I understand that the offer of proof was to that effect.

“Mr. Northup: No, that he died from broken bones and physical shock.

“The Court: Which produced the hemorrhage. Is that right?

“Mr. Adler [attorney for plaintiff] : Yes. -

“Mr. Northup: That would be Dr. Goodman’s testimony also.

‘ ‘ The Court: In other words, there is no evidence of his having bled a particle, and the evidence is conclusive there was not a mark on his body. It is pure argument, and it is behind and beyond the question entirely as to whether or not there would be bruises on his body if he were living and would not be bruises on his body if he were crushed, if he were dead, because circulation had ceased. If he had a heart attack before he was crushed it is beside the point. Even if they had been able to prove what appears to have been impossible, viz., that he died as a result of external violence and not of heart disease, then their measure of damages would have been the next thing for us to consider.

“What is the measure of damages in this case? The measure of damages is what she was deprived of, what loss she suffered by virtue of the withholding of this information. Under the law, if they had the right at common law to sue, there would be a limit of $10,000 for the death. However, this matter came under the Workmen’s Compensation Law and she was entitled to recover only what the Workmen’s Compensation Law allows for that kind of a death.

“The evidence is conclusive here, gentlemen of the jury, that after his death, after his burial, and after the autopsy she went before the Industrial Commission and she received and accepted a sum which the law allowed her, and she accepted it in full, so even if they could have proven a wrongful death and the withholding of information it is my understanding of the law there could be no measure of damages because she did receive and accept the amount which the law would have given her.

“That is the reason for my ruling. Have the jury signed the verdict ?”

Plaintiff strenuously contends that she made out a prima facie case against all of the defendants and that the trial court committed reversible error in directing a verdict for defendants; that the statement to the jury conclusively shows that the trial court passed upon the weight of the evidence and misconstrued the law applicable to the motion.

“ ‘ “A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant [plaintiff]. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’’ (Hunter v. Troup, 315 Ill. 293, 296-7.)’ (Mahan v. Richardson, 284 Ill. App. 493, 495.)” (Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104, 110.)

That the trial court, in passing upon the motion, weighed the evidence is clear, and his conclusion that plaintiff had not proven that her husband died “from anything but heart disease” cannot be justified under the evidence. He states: “Of course, they have not proven that he did not die from heart disease. ... It is my judgment, which is the missing proof, that Mr. Wolever did not die from anything but heart disease, . . . . ” Upon the oral argument in this court and in a supplemental brief filed by defendants, they concede that plaintiff introduced sufficient evidence to make out a prima facie case that the death of Wolever resulted from accidental injuries sustained in the course of his employment. They also now concede that “upon cutting open the body on the post-mortem, there was disclosed a broken back and many internal injuries.” Aside from certain evidence that tends to prove an accident and the manner in which it occurred, it appears, when Wolever’s body was exhumed two weeks after the accident, a post-mortem examination made by the coroner’s physician disclosed a number of fractured ribs, a fracture of the back bone, fractured pelvic bones, a number of lacerations on the liver, considerable laceration of the intercostal muscles on the right side, and hemorrhage; also ‘ ‘ a sort of greenish yellow discoloration of the left upper chest.” After the postmortem a claim for compensation was filed by plaintiff under the Workmen’s Compensation Act, for loss of support, and she was awarded the sum of $3,250, which Maryland Casualty Company, defendant, paid. Had Wolever died of heart disease, plaintiff would not have been entitled to the award, which was necessarily based upon proof that Wolever died as the result of an accident that occurred while he was in the employ of Cur-tiss Candy Company; Defendants are here contending that that award bars the instant claim for damages.

Plaintiff’s contention that the trial court, in the statement to the jury, misconstrued the law applicable to the motion, is also a meritorious one.

Defendants contend that in an action for fraud and deceit the evidence by which the essential elements of the action are established must constitute proof so clear and convincing in its nature as to leave the mind well satisfied that each and all of these elements of fraud have been established, and that the trial court in passing upon the motion in question had the right to consider plaintiff’s evidence in the light of that rule of law; and that the trial court was of the opinion that plaintiff’s proof was not clear and convincing in its nature and did not leave his mind well satisfied that each and all of the elements of fraud had been estab-» lished, and, therefore, he had the right to direct the verdict in question. Defendants cite, in support of this contention, Malewski v. Mackiewich, 282 Ill. App. 593. In that case plaintiffs brought an action for alleged fraud and deceit in the sale of a note secured by a trust deed, and upon a trial by jury, at the close of all the evidence, defendant made a motion for an instructed verdict in his favor, and the court reserved its decision on the motion and submitted the cause to the jury, which returned a verdict for plaintiff. Defendant then made a motion for a judgment in lfis favor notwithstanding the verdict, and the court granted the motion and entered judgment in favor of defendant. The first division of this court held (pp. 603-4) that the uncontradicted affirmative evidence showed that plaintiff did not rely upon the alleged false representation; that therefore there was no evidence tending to sustain an essential element of the cause, “and for that reason, as well as because the quality of the evidence considered as a tohole was insufficient to justify a reasonable verdict for plaintiffs, the trial court rightfully entered judgment in favor of defendant, notwithstanding the verdict of the jury.” (Italics ours.) The language we have italicized was not necessary to a determination of the case, and it may be considered as obiter. In any event, the trial court in the Malewski case had no right to weigh the evidence in passing upon the motion for a judgment in defendant’s favor notwithstanding the verdict.

“The court in passing upon the motion [one for judgment notwithstanding the verdict] must decide whether, as a matter of law, the party requesting the directed verdict is entitled thereto. This provision of the Civil Practice Act and rule 175 of the municipal court must be taken in connection with rule 22 of the rules of practice of the Supreme Court which provides: ‘The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict without submitting the case, to the jury.’ The statute and rules require the court to be governed by the same rules in passing upon a motion for a judgment notwithstanding the verdict.as govern it in passing upon a motion for a directed verdict. The trial court in passing upon this motion has no more authority to weigh and determine controverted questions of fact under the Civil Practice Act than under the Practice Act of 1907. Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471. If it were permissible for a trial judge on a motion non obstante veredicto to weigh the evidence and enter a judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by a jury would be done away with and the judgment of the court substituted therefor. It is only where there is no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict. In the instant case the evidence was conflicting and the court should not have substituted its judgment as to the weight of the evidence in place of the verdict of the jury.” (McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, 128-9.)

Illinois Tuberculosis Ass’n v. Springfield Marine Bank, supra, was decided by the third district of this court; Capelle v. Chicago & N. W. Ry. Co., supra, by the second district. We are entirely in accord with what is said in McNeill v. Harrison é Sons, Inc., supra. Had a verdict been returned for plaintiff in the instant case, the trial court, in passing upon a motion for a new trial, would have had the right to apply the general rule of law as to the character of the proof that is required in an action for fraud and deceit. As stated in Capelle v. Chicago & N. W. Ry. Co., supra (p. 480): “If the court is dissatisfied with the verdict under the evidence, he should grant a new trial.”

Plaintiff’s contention that she made out a prima facie case under the complaint against all of the defendants is. disputed by defendants. We are satisfied that plaintiff’s contention is a meritorious one. It would unduly lengthen this opinion to state the facts and circumstances that bear upon the instant contention. Moreover, as this cause may be tried again, we deem it advisable to refrain from commenting upon the evidence.

Defendants contend that to warrant a recovery in this case plaintiff would have to prove “that what the defendants did they did in concert and by agreement. There is absolutely no evidence in this record of any such agreement or conspiracy.” Even in a criminal ease it is not necessary to prove that the alleged conspirators came together and actually agreed, in terms, to a common design and to pursue it by common means, and in civil or criminal cases a conspiracy may be proved by facts and circumstances. Moreover, while the second count charges a conspiracy to defraud by joint tort feasors, the first count alleges fraud and deceit by individual tort feasors.

Defendants argue that “the facts are as consistent with an entirely innocent mistake or a case of poor judgment merely, as the contention of fraud and deceit. ’ ’ In passing upon a motion to direct a verdict the rule is that the evidence, “in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff.” (Thomason v. Chicago Motor Coach Co., supra.) Plaintiff made out a prima facie case, and it was for the jury to determine the facts from the evidence. Much of the argument of defendants, while irrelevant here, would be relevant on a motion for a new trial or upon an appeal from a judgment in favor of plaintiff.

Plaintiff strenuously contends that the trial court erred in holding that even if she proved her allegations as to fraud and deceit it would avail her nothing, because she was entitled to recover only what the Workmen’s Compensation Law allowed her. Defendants contend that the ruling was correct, and that the court properly rejected evidence as to physical injuries and financial losses claimed to have been sustained by reason of the fraud and deceit. The trial court’s ruling was, of course, erroneous. This is a common law action for fraud and deceit, and plaintiff could not recover under the compensation act for the damages she alleges she sustained by reason of the fraud and deceit. Should plaintiff, upon a new trial, be able to sustain the alleged charge of fraud and deceit against defendants, there are certain damages alleged in her complaint which she would be entitled to .recover if the proof showed that she sustained such damages. One of her claims is that she has a right to recover damages for mental worry, strain and nervousness, and bodily injuries she sustained as a result of the fraud and deceit, and defendants vigorously argue that no such damages could be allowed even if plaintiff proved her allegations as to fraud and deceit. That it would be difficult under the particular facts of this case for plaintiff to prove that such damages were proximately caused solely by the fraud and deceit may well be conceded. However, under the present state of the record we are not called upon to express an opinion as to whether or not plaintiff can, in another trial, sustain this particular claim.

The contention of defendants that the decision in Ivanhoe v. Buda Co., 251 Ill. App. 192, precludes plaintiff from recovering any damages in the instant case, is without merit. In that case the employee sued for damages arising out of alleged fraud perpetrated upon him by the Buda Company, which induced him to refrain from filing a claim before the Industrial Commission for accidental injuries sustained during the course of his employment. That case had previously been before the first division of this court (247 Ill. App. 336), and one phase of the controversy had been before the Supreme Court (306 Ill. 188). The plaintiff there claimed that because of the fraud and deceit of the defendant in representing to him that his claim had been filed in apt time he failed to file his claim within the time required by the statute and that as a result he lost his right of action under the Workmen’s Compensation Act. The only damages he claimed and in support of which he offered evidence, were such as he might have recovered under the said act, and from the two opinions of the Appellate Court it is clear that he made no attempt to show any other damages sustained because of the fraud and deceit. Under that state of the pleadings and the proof, the Appellate Court (251 Ill. App. 192, supra) held (p. 196) that the jury should be instructed that the basis of its verdict should be the award which plaintiff would be entitled to under the Workmen’s Compensation Act. The instant case presents a different situation.

We do not deem it necessary to specifically pass upon several just complaints of plaintiff that the trial court erred in excluding certain evidence offered by her, as we are satisfied that the errors are not likely to occur upon a new trial.

After a careful consideration of the instant appeal we conclude that plaintiff’s case should have been submitted to the jury.

The judgment of the circuit court of Cook county is reversed, and the cause is remanded for a new trial.

Judgment reversed,■ and cause remanded for a new trial.

Friend, P. J., and Sullivan, J., concur.