author: Mr. Justice Edwards

text:
    Goldie Greenfield, Appellee, v. Terminal Railroad Association of St. Louis, Appellant.

      Opinion filed March 4, 1937.
    Kramer, Campbell, Costello & Wiechert, of Bast St. Louis, for appellant; J. L. Howell, of counsel.
    Philip G-. Listeman and Beasley & Zulley, all of Bast St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

By this appeal defendant below seeks to reverse a judgment for $2,500 which plaintiff recovered against it in the city court of East St. Louis. The action was to recover damages which plaintiff claims to have sustained when a Chevrolet coupe, in which she was riding as a guest with three other persons, collided with an engine of defendant on the tracks of the latter where they cross Missouri avenue in the city of East St. Louis; the accident occurring shortly after midnight on November 7, 1935.

The complaint charged that the crossing in question was a dangerous and hazardous place; that defendant, in recognition of such fact, had installed a system of gates at the crossing several years before the accident, and had maintained same from the date of installation to the time of the occurrence; that the aforesaid facts were known to the plaintiff and the public generally, and that while crossing such tracks, with all due care on her part, she was struck by the engine of defendant, due to the fact, as alleged, that defendant at the time had negligently, and in disregard of its duty, failed to lower the gates at such crossing as its engine approached, in consequence of which plaintiff sustained divers hurts and injuries.

Defendant answered, admitting ownership of the tracks, and that it from time to time operated trains thereon, but denied all other allegations of the complaint. The defense claims that the gates were down at the time of the accident, and that plaintiff was guilty of contributory negligence.

It appears from the evidence that the gates were the usual appliances installed at such places, on each side of the tracks there being two flexible wooden bars which extended from the sidewalk toward the center of the street, with a gap of about 18 inches between the ends of the bars when they were lowered. At night, on each, was hung a lighted lantern with a red light burning. The bars when down were about the height of the top of the radiator of a Chevrolet coupe.

Three of the occupants of the car testified that the gates were up when they entered the crossing, and not lowered at any time. Three other and disinterested persons deposed that the gates were up either at the time of the accident or immediately thereafter. As opposed to this the crossing watchman stated that he lowered the gates and that they remained down until after the collision, and that the car ran between the gates and struck the engine. The fireman testified that he saw the coupe run through the gates, and that they were down after the collision. He further stated that he examined the gates about 10 minutes after the accident and that no part of them was broken, nor did he find any mark upon them. The watchman’s testimony was that the machine went throug’h the two gates, without breaking either, and that it did not knock off the lighted lantern attached to the gate. The witness stated that he could not see any paint gone from the bars, and that if anything had been wrong with the arms of the gates he guessed he would have noticed it. He further testified that there were some black spots back from the tips of the gates.

Whether the gates were up or down at the time was a question of fact; six witnesses testifying that they were up, and two that they were down.

In addition, the circumstances seem to dispute the testimony of the watchman and fireman. That a car, speeding against the gates at the rate of 40 miles an hour, even though at the ends of the bars where, conceivably, owing to the flexible character of the wood of which they were made, it might have passed through without breaking the arms, should not scrape off any of the white paint on same, the car being probably four or five feet wide and the aperture between the ends of the gates 18 inches, seems improbable, and that the lighted lanterns hanging on the arms should not have been knocked off or broken, seems almost unbelievable. Common sense dictates that under such circumstances there would have been some damage done to the bars. The fact 'that defendant’s witnesses agree that no injury was thereby done to the gates is strong proof that they were not down and not struck by the coupe. Upon this record of proof we think the jury were warranted in finding that the gates were not lowered at the time of and just prior to the collision.

It appears undisputed that such gates had been maintained for a period of years prior to the accident, and that such fact was known to the plaintiff and to the public generally. When a railroad assumes the duty of maintaining gates or a flagman at the crossing of its tracks with a public street or highway, it is bound to discharge the duty with due care, whether or not it was obligated so to do by statute or ordinance, and for a failure to perform such duty, which proximately causes injury to a person, is liable in damages. Chicago & A. Ry. Co. v. Wright, 120 Ill. App. 218; Wolcott v. New York & L. B. R. Co., 68 N. J. L. 421, 53 Atl. 297; State v. Boston & M. R. Co., 80 Me. 430, 15 Atl. 36; 52 Corpus Juris, p. 205, sec. 1793. We think the proof tended to establish the fact that defendant assumed this duty, that it failed to perform it with due care, and that such failure was the proximate cause of plaintiff’s injury.

It is also contended that plaintiff has not, as required by law, shown herself to have been free from negligence which proximately contributed to her injury, and that ordinary care required that she look and listen, before crossing* the track, for the purpose of ascertaining whether or not a train was approaching, and not to advance upon the track without so looking and listening.

The law is well established that a person who is familiar with the custom of a railroad company to close gates maintained at its crossing with a public street or highway, when a train is about to pass, and who is acquainted with the location and surroundings, has a right to rely upon the open gates as a notice to him that no train is close at hand, and as an invitation to him to "make the crossing in safety, so far as an approaching train is concerned. Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446; Carlin v. Michigan Cent. R. Co., 189 Ill. App. 23; Wabash Ry. Co. v. Walczak, 49 F. (2d) 763; Lockridge v. Minneapolis & St. L. Ry. Co., 161 Iowa 74, 140 N. W. 834; Flygen v. Chicago, M. & St. P. Ry. Co., 115 Minn. 197, 132 N. W. 10; Rademacher v. Detroit, G. H. & M. Ry. Co., 158 Mich. 552, 123 N. W. 45; Hendrickson v. West Jersey & S. S. R. Co., 102 N. J. L. 310, 131 Atl. 875; Johnson v. Director General of Railroads, 278 Pa. 491, 123 Atl. 484; Palmer v. New York Cent. R. Co., 112 N. Y. 234, 19 N. E. 678; Cleveland, C., C. & St. L. Ry. Co. v. Schneider, 45 Ohio 678, 17 N. E. 321. Such person cannot be charged with negligence in so doing, if, in crossing, he exercises ordinary care for his own safety. Evansville & T. H. R. Co. v. Berndt, 172 Ind. 697, 88 N. E. 612.

Whether or not plaintiff looked and listened is not alone decisive of the question, in situations where there are facts which excuse the performance of that duty, and it is a question of fact for a jury’s determination whether in view of all the surrounding, circumstances a failure to look and listen renders the injured person guilty of negligence, or whether such party is relieved by the circumstances from the obligation to look and listen. Chicago & E. I. R. Co. v. Schmitz, supra; Chicago & A. R. Co. v. Pearson, 184 Ill. 386. Hence it was for the jury to find, from all the attendant circumstances, whether the failure of defendant to lower its gates at the approach of the train was a fact excusing plaintiff from looking and listening before she entered the defendant’s right of way, if she, in fact, so failed to look and listen. Nor would the negligence of the driver in that respect be imputed to the plaintiff as his guest, who was only held to exercise due care for her own safety. Thomas v. Buchanan, 357 Ill. 270.

It is also claimed that the fact, as' the evidence shows, that four persons were riding upon the single seat of the automobile, in violation of Ill. State Bar Stats. 1935, ch. 121, If 368; Jones Ill. Stats. Ann. 85.222 (sec. 190, ch. 95%, Smith-Hurd R. S. 1935), was negligence upon plaintiff’s part. Where a person, in such situation, violates a provision of a statute or ordinance, such fact is only prima facie evidence of negligence ; that is, only one of the facts and circumstances to be considered in order to determine whether such person is in fact guilty of negligence. Miller v. Burch, 254 Ill. App. 387; Commonwealth Elec. Co. v. Rose, 214 Ill. 545. We think the question of whether plaintiff was guilty of negligence which proximately contributed to the injury was fairly submitted to the jury, as one of fact, and that we would not be justified in interfering with their finding.

Defendant tendered an instruction which was refused by the court. This would have told the jury that where a locomotive and an automobile are each approaching a railway crossing at the same time, and those in charge of the train and the occupants of the automobile are each aware of the approach of the other, it is not the duty of the operators of the train to stop the same, but it is the obligation of the traveler in the automobile to stop his vehicle and not attempt to pass in front of the advancing train; and that in this case even though those in control of the train saw the automobile approaching the crossing in question, yet they had the right to assume that the motor vehicle would stop and allow the train to pass.

• The engineer testified that he was on the opposite side of the engine from the one with which the car collided, and that he did not see the auto until the crash. The fireman stated that as they got into the crossing intersection he looked to the left and saw the on-coming car. On cross-examination he said, “the first thing I saw of the automobile was the machine going through the crossing gates.”

It is thus seen that the fireman did not see the automobile until the train was at or in Missouri avenue, or, as he says, “when the machine was going through the crossing gates,” at the rate, as he testified, of 40 miles per hour. If his first glimpse of the auto was when it was crashing the gates it was when the car, instead of approaching the crossing, was in fact at or in it. We do not think there is any evidence that the train crew saw the automobile before it reached the crossing or was approaching it, and there is no evidence that any one of the occupants of the car saw the approaching engine. True, it would have satisfied the rule if they “by reasonable care could have ascertained that fact.” Grinestaff v. New York Cent. R. Co., 257 Ill. App. 301. However, the instruction, as tendered, limited the jury’s consideration to actual knowledge, of which there was no evidence. It was therefore rightfully refused as not being based upon the evidence. Bailey v. Babcock, 352 Ill. 231, 236.

For which reasons we think the court properly overruled defendant’s motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial, and that the judgment, upon the record, is right.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    City of Belleville, Appellant, v. R. E. Hoffman, Appellee.
    Opinion filed March 4, 1937.
    L. F. Fiok Perrin, Jr., City Attorney, for appellant.
    Felsen & MoMurdo, of East St. Louis, and Dunbar & Dub ail, of St. Louis, Mo., for appellee; Charles R. Judge, of St. Louis, Mo., and L. H. Degnan, of East St. Louis, of counsel. , -
   Mr. Justice Edwards

delivered the opinion of the court.

This appeal involves the construction of an ordinance of the city of Belleville which provides that every person who shall desire to carry on the business of hawker or peddler in the city, shall, before so doing, obtain a license therefor, and that the same shall cost the sum of $35 per annum for each wagon, cart or vehicle used in such occupation.

Defendant was arrested for a violation of such ordinance and tried before a justice of the peace, where he was found guilty and a fine imposed. He thereupon appealed to the circuit court, trial by jury was waived, and the cause submitted to the court who discharged the defendant as not guilty. From this decision the plaintiff, city of Belleville, has appealed.

The cause was submitted in the circuit court upon a stipulation of facts, that defendant operates a bakery in the city of Centralia in which he manufactures bakery goods; that in the usual course of his business he sells and delivers bread solely to 60 retail grocers in Belleville; that he has not taken out any license so to do; and that for such delivery he owns and maintains a bakery truck which he keeps in Centralia except when same is being used for delivery purposes. Further, that he has paid license fees exacted by the State and the city of Centralia with respect to the operation of such truck.

The principal question at issue is whether under such stipulation defendant is a hawker or peddler within the meaning of the ordinance.

We have not been cited to any Illinois decision upon the question whether a person who only sells directly to retailers, for resale' to consumers, and does not himself make sales to the consumer, is a peddler. The matter has been before the courts of other States in numerous instances, and so far as we are advised, the uniform holding has been that when the wholesaler confines his sales to retail dealers who are his .regular customers,, and does not himself sell directly to the consumer, he is not a peddler; the latter being defined as one who travels from house to house, selling directly to the user, and that sales at wholesale are not within the common and generally accepted meaning of the term. City of Aurora v. Stafford, 227 Mo. App. 322, 51 S. W. (2d) 547; City of St. Paul v. Briggs, 85 Minn. 290, 88 N. W. 984; Huband v. Evans, 114 N. J. L. 586, 177 Atl. 871; Petersen Baking Co. v. City of Fremont, 119 Neb. 212, 228 N. W. 256; State v. Fetterer, 65 Conn. 287, 32 Atl. 394; Graffty v. City of Rushville, 107 Ind. 502, 8 N. E. 609; United Baking Co. v. City of Saratoga Springs, 267 N. Y. 316; 29 Corpus Juris, 219-222; 21 R. C. L., 184.

Based upon the foregoing authorities, which appear to establish the law bearing upon the proposition, it would appear that within the facts set forth in the stipulation, defendant sold only to retail dealers, hence was not a peddler, and not amenable to the ordinance in question.

Plaintiff cites the case of City of Chicago v. Bartee, 100 Ill. 57, as announcing a contrary doctrine. It appears that the ordinance in the Bartee case is very similar to the one herein involved. However, in that suit the facts were different, the sales having been made directly to the consumer. Such is not true here, where defendant made no sales to the user but only dealt with retail grocers. We do not regard such decision as applicable to the facts in the instant case.

The decision of the foregoing question disposes of the case and it is not necessary to consider other questions which have been argued. We think the judgment of the circuit court was right, and it will be affirmed.

Judgment affirmed.


text:
    Mary Kobzina et al., Administratrix of the Estate of Charles Kobzina, Deceased, Appellees, v. Empire State Insurance Company, Appellant.

      Opinion filed March 4, 1937.
    H. Grady Vien, of East St. Louis, for appellant.
    T. A. O’Connor, of East St. Louis, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On April 7, 1932, Charles Kobzina and Mary Kobzina, his wife, became, by deed, the owners, as joint tenants, of a business building and lot in East St. Louis, and so remained until December 1, 1935, when Charles Kobzina died. At the time of acquiring title said grantees executed a mortgage upon the property to Katherine Temme, trustee, in the sum of $1,500, both signing the instrument, and took out a policy of fire insurance thereon in the sum of $1,500, payable to both Charles Kobzina and Mary Kobzina; which policy, however, is not involved in this suit.

On December 15, 1933, another mortgage, in the sum of $1,000, was placed on the property, executed by Charles Kobzina alone, to Benjamin Newman, trustee, and on the same day he took out another fire insurance policy in the company of defendant, in the amount of $1,000, payable solely to himself; also, on December 28, 1933, the same company issued to the said Charles Kobzina, alone, its further policy of fire insurance in the sum of $1,000.

On January 14, 1934, the building so insured was totally destroyed by fire. Defendant refused payment on the ground, among others, that there had been a misrepresentation of ownership of the property, which avoided the last two policies according to one of the clauses of such contracts.

Charles Kobzina, after the fire, filed on two occasions proofs of loss upon each of the policies, or four documents in all, in every one of which he stated under oath that he was the owner of the premises, and that no other person had any interest therein except the trustees in the two mortgages referred to, and completely ignored the fact that his wife, as a joint tenant, had an interest equal to his own.

Charles Kobzina and Mary Kobzina brought suit, alleging that when the insurance was applied for, information was given to the agent of defendant that both Kobzina and his wife owned the property as joint tenants, and asking a reformation of the policies and a decree directing defendant to pay thereon.

Pending the suit Charles Kobzina died, and his wife having been appointed administratrix of his estate, on her petition was substituted as a plaintiff in place of her husband, in her capacity as such administratrix. The cause was referred to a master who reported in favor of plaintiff; the court approved the report and entered a decree granting plaintiff the relief sought, and tins appeal is based upon suchMecree.

Plaintiff, to maintain her contention, claims that the applications were taken by one John Skarha, who was a subagent of Vernon & Company, the regular agents of defendant, and that Skarha handed to J. P. Drury, a member of such agency, on December 15, 1933, a written memorandum containing the address of the property, the amount of the policy desired, and the names of Charles Kobzina and Mary Kobzina as the owners of the property. Further, that Drury wrote the policy, which was handed to Skarha, and that the latter, without reading or looking at it, delivered same to Charles Kobzina and collected from him the premium, which Drury then divided with Skarha.

Defendant denies that Skarha was its subagent, or that he delivered to Drury the memorandum referred to; and as these are the controlling questions in the case it is necessary to consider the evidence bearing thereon.

Skarha testified that he had been soliciting insuranee for defendant; that when policies were written as a result of his efforts, the commissions were divided with him by Drury, and that same was done in this case.

C. H. Vernon, the head of the agency, stated that it had no subagents and that Skarha, to his knowledge, had no authority, either directly or indirectly, to solicit insurance for defendant. J. P. Drury testified that Skarha was not an agent for defendant, nor did the witness ever employ him as such; that Skarha brought him all of the premiums for these policies, and that he did not think he paid the latter any commission on the policies. Drury’s wife, Bernice, who was employed at the time in his office, and who alone wrote the policy dated December 28, 1933, stated that the agency had no subagents, and that no commissions were paid to Skarha.

Much is made of,the fact that Drury said he did not think he paid Skarha a part of the commission as collected. Whether he did or not, is not decisive of the matter. The mere fact that the agent of defendant may have divided his commission with another for procuring the application, does not alone and of itself prove the subagency of the latter. United Firemen’s Ins. Co. v. Thomas, 92 Fed. 127.

It further appears that Skarha had been for sometime the general representative of Charles Kobzina in his transactions relative to the property; that he proposed the taking out of the additional insurance; made the deal whereby the Kobzinas acquired the property, and engineered the placing of the mortgages thereon.

Plaintiff had the burden of proving the subagency of Skarha, and upon the record we do not think such burden has been sustained. On the contrary we are of opinion that the testimony shows that Skarha, in the procuring of the policies of insurance in question, was the agent of Charles Kobzina and not of the defendant. i '

This brings us to a consideration of whether the proof establishes that Skarha, on December 15, 1933, delivered to Drury the memorandum referred to, and upon which proposition the burden of proving same rests upon plaintiff. Both Drury and his wife positively deny that Skarha delivered any such memorandum to them, but state that what he did bring in was the mortgage dated December 15, 1933, which was executed by Charles Kobzina alone, and in which no reference was made to his wife as having any interest in the property, and that he did not in any way refer to Mrs. Kobzina as a part owner of the premises.

Skarha states with equal positiveness that he delivered the memorandum in question. He admits however that Drury called for the description of the property, and claims that he furnished another memorandum as to same. He also admits that he drew the mortgage of the same date, signed and acknowledged as of that day, and in which he omitted the name of Mary Kobzina as a mortgagor, although, as he further admits, he was aware at that time that she was a joint owner of the premises. When pressed for an explanation as to why he failed to insert her name in the mortgage, he was unable to assign a valid reason therefor.

To corroborate his testimony he called as witnesses the attorney for plaintiff, who testified without withdrawing from the case, — a practice often criticised by the Supreme Court (Wright v. Buchanan, 287 Ill. 468; Judy v. Judy, 261 Ill. 470), and the attorney’s stenographer; both of whom stated that Skarha came into the attorney’s office, showed the memorandum in question, and said he was going to deliver it to Drury, and that he then started for the latter’s office. Skarha also testified to the same facts.

As between the testimony of Harriet Morris, the stenographer, and Skarha, there are some discrepancies ; among others, as to what was written upon the memorandum, and noticeably as to when and where the memorandum was prepared. Mrs. Morris stated that Skarha came into the office, walked to the waste paper basket, took from it an old envelope, and then upon her desk wrote upon the paper which he then exhibited to her and the attorney; while Skarha testified, in response to a question during his examination by plaintiff’s attorney, I went to your office, had the ticket in my hand, and told the girl where I was going. I spoke to the girl about going to Drury’s, and I went to Drury’s with the memorandum.” Skarha did not state that he wrote the memorandum in the attorney’s office, and the plain purport of his testimony is that he had it in his hand when he entered the office; in other words, that he had previously prepared it; yet the stenographer says that he wrote it in her presence after entering the office. It is difficult to understand what motive would prompt Skarha to exhibit the memorandum to the attorney and his stenographer, a matter in which neither was interested and with which they were not concerned.

Skarha testified that he was a real estate and insurance broker. As such it would be expected that a business matter which he was negotiating would be held secret and not proclaimed from the housetops or hillsides. It seems improbable that he would have, for no apparent reason, exhibited it to those who were in nowise interested, and it seems equally unlikely that the others would, with nothing to impress its contents upon their memory, be able a year and a half later to testify in detail as to what was written thereon. We are not impressed with this testimony and do not think plaintiff has, by the greater weight of the evidence, proven that the memorandum was delivered to Drury.

It thus appears that whatever representation as to ownership was made to Drury or his wife, was that Charles Kobzina was the sole owner of the premises.

The title being in the husband and wife jointly, the husband could not insure as the sole owner. 26 Corpus Juris, 180, sec. 219;. Joyce on Insurance, 2nd Ed., Yol. 2, p. 2135, par 1049-B. There was an untrue representation as to ownership, which, by the terms of the policy, rendered it void from its inception. Such provisions are valid and a breach thereof will preclude recovery on the policy unless there was a waiver or estoppel which precludes the insurance company from setting up the provision as a defense. Pollock v. Connecticut Fire Ins. Co., 362 Ill. 313; Capps v. National Union Fire Ins. Co., 318 Ill. 350; Hebner v. Palatine Ins Co., 157 Ill. 144.

Upon a consideration of the record we do not find any such conduct on the part of defendant as would amount to an estoppel or waiver of the clause referred to. The decree is reversed and the cause is remanded, with directions to dismiss the complaint for want of equity.

Reversed and remanded with directions.


text:
    Flora Ulbricht, Appellee, v. Western Coach Lines, Appellant.
    Opinion filed March 4, 1937.
    Wm. P. Boynton, of Alton, for appellant; Bert E. Strubinger, of St. Louis, Mo., of counsel.
    Harry G. Erbs, of St. Louis, Mo., and Chester H. Farthing, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellee, plaintiff below, recovered a judgment for $7,500 in the circuit court of Madison county against defendant, who is appellant here, which the latter by this appeal seeks to reverse. The cause of action grew out of an injury sustained by plaintiff on May 27,1934, at a point some seven miles east of Alton, at the junction of State Highways Nos. 112 and 140, caused by a collision of the automobile driven by her husband, and in which she was riding, with the bus of defendant.

Numerous grounds are assigned for reversal, one of which is the refusal of the trial court to give to the jury an instruction tendered by defendant.

We find that the written motion for a new trial, specifying grounds therefor, did not assign the giving or refusal of instructions as a reason why a new trial should be awarded. By filing such motion in writing, setting forth certain causes therefor, the party thereby waives all grounds not specified therein. Erikson v. Ward, 266 Ill. 259; Martin v. Starr, 255 Ill. App. 189. This being the rule, defendant’s contention in this behalf is without validity.

It is also urged by defendant that the court erred in refusing to direct a verdict, in overruling motion for judgment non obstante veredicto, and in refusing to grant a new trial, for the reason that plaintiff failed to prove due care on her part, and that negligence of the defendant was the proximate cause of the injury.

The proof bearing upon both propositions was conflicting. There was evidence tending to support the affirmative of each, and also testimony to the contrary. We think the proof upon these matters raised a fair question for the jury, and where such is true it is not the province of the trial court to direct a verdict or enter judgment non obstante. St. Clair Nat. Bank v. Monaghan, 256 Ill. App. 471; Greenwald v. Baltimore & O. R. Co., 332 Ill. 627. This also disposes of the question of the court’s refusal to award a new trial. Where a fair question of fact is raised by the proof the court will not set aside the jury’s finding as against the weight of the evidence. Summers v. Stark, 76 Ill. 208.

Lastly it is claimed that the damages awarded are excessive. It appears that plaintiff, as a result of the accident, received divers bruises and contusions, suffered a punctured lung, and sustained a lacerated wound running across the extensor tendons of the thumb, index finger and middle finger of the hand; that at the time of trial, two years after the injury, she was unable to bring the fingers into full grip into the palm of the hand; that she could not get the thumb closer than one and one-half inches to the palm of her hand, and that she was unable to do any housework which required the use of the hand. Also, that she sustained a fracture of the left knee, which required treatment for the two years after its infliction, and which was accompanied by pain and which made necessary the wearing of an elastic bandage on the knee for support; furthermore, that whenever she was obliged to do much walking or standing upon the feet, pain and swelling of the knee would ensue. Her attending physician expressed the opinion that the injury to the knee had reached its maximum recovery, and that the injury would probably remain permanent. Plaintiff spent several weeks in the hospital, contracted physicians’ bills in excess of $500, and at the time of trial was unable to sleep without the aid of sedatives and experienced inability to concentrate when reading. In addition to her duties as a housewife she had been an agent for a corset company, calling upon customers, taking their measurements and fitting them with corsets; her annual earnings for the two years prior to the accident having been $300.

With this showing as to permanent disability, pain and suffering endured, loss of earnings, and expense of medical treatment, we do not think the judgment is excessive.

Judgment affirmed.


text:
    Lena Anderson, Administratrix of the Estate of Druie Anderson, Deceased, and Roscoe Boyd, Appellees, v. Frank J. Steinle, Trading as Dr. Pepper Bottling Company, Appellant.

      Opinion filed March 4, 1937.
    Ferrell & Hay, of Marion, and Pope & Driemeyer, of East St. Louis, for appellant.
    D. L. Duty and L. A. Colp, both of Marion, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

This action is a suit brought by Lena Anderson, administratrix of the estate of Druie Anderson, deceased, and Eoscoe Boyd, against Frank J. Steinle, to recover damages for the death of Anderson, and for injuries to Boyd, arising out of a collision when Boyd in company with Anderson drove their car into the rear of a truck belonging to defendant while such truck was standing upon the cement highway near the city of Marion.

Plaintiffs’ case is based upon the contention that defendant’s driver stopped the truck partly on and partly off of the cement slab, without maintaining tail or other lights, or putting out flares, as required by Ill. State Bar Stats. 1935, ch. 95a, fí 42(4); Jones Ill. Stats. Ann. 85.055(2) (sec. 57b, ch. 95%, Smith-Hurd B. S. 1935), and that such failure in regard to lights and flares was the sole proximate cause of the collision. Defendant denies such contention, and claims that Boyd and Anderson were guilty of negligence which proximately contributed to cause the accident.

Anderson left him surviving his widow and three children, one of whom was a daughter 14 years of age. A jury found for the plaintiffs, assessing Boyd’s damages at $350, and those of the administratrix of the deceased at $5,000. Judgment was entered upon the verdict, after overruling motions for judgment non obstante and for a new trial, and defendant prosecutes this appeal.

As to the argument that the verdict was contrary to the weight of the evidence, we think the jury were warranted under the proof in finding for the plaintiffs.

It is alleged that the trial court erred in permitting the administratrix to prove that her intestate, at the time of and prior to the accident, had a general good moral character. So far as the administratrix was concerned, the action was brought under the Injuries Act to recover for the pecuniary loss which she and her children sustained as a consequence of his death. The law is well settled in this State that in such class of suits, where there is a minor child, it is competent for the plaintiff to prove that the deceased father was a person proper and competent to give to the minor child moral training, and where such proof is made the jury may consider the loss of same, which the child sustained by reason of the parent’s death, as an element of the damage. Goddard v. Enzler, 222 Ill. 462; Illinois Cent. R. Co. v. Weldon, 52 Ill. 290, 294, 295. It was therefore proper for plaintiff administratrix to prove that her intestate was one suited and fitted to give moral training to the minor daughter, and it was a proper method, in establishing such fact, to show that he was a person of good moral character and reputed as such. We think the court’s ruling was correct.

It is further asserted that plaintiffs’ instruction No. 10 was erroneous in two regards: first, that it was peremptory in its character and as such should have contained every element necessary to a recovery, and that it was lacking in failing to require the jury to find that defendant was guilty of negligence, and that plaintiffs were free from same. The instruction, however, did contain at its close the requirement: “And if you further believe from the greater weight of the evidence that the failure of defendant to so set out said warning signals, if there was such a failure, was the direct cause of the injuries involved in this case to the plaintiffs, then you should find the defendant guilty.”

It will be noted that the instruction required the jury to find that defendant’s failure to give the statutory warning was the “direct cause” of the injuries to plaintiffs. The phrase “direct cause” has been held to mean, “the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source”; Lynn Gas & Electric Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 33 N. E. 690; and in Tuff v. Waman, 5 C. B. (N. S.) 573, it is said: “The direct cause of an injury is one without which the injury would not have happened.” We think the jury must have understood they were to find that defendant’s failure to give the warnings complained of was the sole cause of the accident, which of course would necessarily include the negligence of defendant, as proximately causing the injury, and exclude the negligence of plaintiffs, as proximately contributing to the injury.

It is also argued that the instruction is erroneous in that it told the jury that if defendant, when he stopped the truck, failed to “immediately give warning to the public” by displaying flares in the immediate vicinity of the truck, and that such failure was the direct cause of the injuries, then defendant was liable. This is in the language of the statute. However, we think the instruction should not have been so worded. It is fundamental that statutes must be given a reasonable construction and the intent of the law makers ascertained if possible.

It has been repeatedly held that where the doing of an act is required to be done immediately, whether the obligation is imposed by law or by contract, it means that the performance shall be with due and reasonable diligence in view of the circumstances of the case, and without unnecessary or unreasonable delay. Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644; State v. Bonsfield, 24 Neb. 517, 39 N. W. 427; Remington v. Fidelity & Deposit Co. of Maryland, 27 Wash. 429, 67 Pac. 989; Park County v. Big Horn County, 25 Wyo. 172, 166 Pac. 674; Fairly v. Albritton, 121 Miss. 714, 83 So. 801.

It does not seem reasonable that the legislature should intend that the driver of a motor vehicle, who stops upon the highway, should be held to place out flares immediately according to the literal meaning of the word, which, in supposable instances, might require same to be done before it was physically possible. It seems more logical that the statutory requirement was designed to obligate such person to do so with reasonable diligence and without unnecessary delay.

This part of the instruction, standing by itself, was erroneous. However, the court, in instructions Nos. 6 and 8 for the defendant, correctly enunciated the rule with clarity and emphasis, hence we do not think defendant was prejudiced by the giving of plaintiffs’ instruction No. 10. Pridmore v. Chicago, R. I. & P. Ry. Co., 275 Ill. 386.

Objections are also made to certain other of plaintiffs’ given instructions. Same are technical in character, however, and upon this record we do not think they could have worked any injury to the defendant.

For which reasons the judgment is affirmed.

Judgment affirmed.


text:
    J. W. Schwind, Administrator of the Estate of Clara A. Kuhn, Deceased, Respondent, v. Walter J. Forester, Petitioner.

      Opinion filed March 4, 1937.
    L. W. Wiley, of Du Quoin, for appellant; L. A. Cranston, of Du Quoin, of counsel.
    Charles E. Feirioh and John K. Feirich, both of Carbondale, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On December 27, 1935, in the circuit court of Perry county, a decree was rendered in favor of respondent (plaintiff below) in a certain chancery proceeding to declare as a preference a claim which plaintiff had filed in the receivership of the First National Bank of Tamaroa, of which petitioner herein is receiver.

On January 4, 1936, the defendant, who is now petitioning for leave to appeal, filed a motion in the cause, which he styles a motion for a new trial. The motion assigns a number of reasons, chief among which are newly discovered evidence; that the findings of the court are against the manifest weight of the evidence, and “that substantial injustice Will be done if the judgment is allowed to stand. ’ ’

On March 30, 1936, the chancellor overruled the motion, after which, on April 30, 1936, defendant filed in the trial court a notice of appeal from the order entered on said March 30, 1936, and gave notice that he would ask for the fixation of the amount of appeal bond. The court thereafter, on May 6, 1936, fixed the amount of such bond and ordered that upon same being filed, and the security thereon approved, that the notice of appeal be made a supersedeas. On May 9,1936, defendant filed a praecipe for record and transcript of proceedings, and on July 3, 1936, he filed his motion to strike from the files his own appeal, being of the opinion that he should have appealed from the decree of December 27, 1935, rather than the order of March 30, 1936. The court, on July 6, 1936, denied such motion to strike the notice of appeal.

Plaintiff, on July 22,1936, filed his motion to dismiss the appeal, for the reasons that defendant had not filed appeal bond within 10 days as required by the order of court entered oh May 6, 1936; that he did not file transcript of proceeding's within 60 days after April 30, 1936, the date upon which notice of appeal was filed, and that no order of court extending the time for filing such report of proceedings was entered; that no such report of proceedings was on file at the time of filing the motion to dismiss the appeal; and that no such report of proceedings was transmitted to the office of the clerk of the Appellate Court as required by law.

The court, on July 23, 1936, heard such motion, sustained same, and dismissed the appeal, after which defendant filed this, his petition, asking that he be allowed to appeal from the decree entered December 27, 1935; alleging that his attorney had only been a practitioner in this State for two and one-half years; that not being familiar with the mode of appeal in Illinois, he filed his said motion for a new trial from the order last mentioned; that after such motion was overruled he consulted a lawyer of 40 years practice in this State, and became convinced that he had improperly sought to appeal from the order of March 30,1936, when in truth he should have appealed from the decree of December 27, 1935; and that he had not been guilty of any culpable negligence in the premises.

Defendant moved to strike the abstract of additional record, and the answer to petition for leave to appeal filed by plaintiff. Upon consideration of the motion we are of opinion that the documents were properly filed, and the motion is overruled.

The proceeding brought by plaintiff to have the claim allowed as a preference was equitable in its nature ; was treated by the court and the parties as such; was heard after the manner of chancery cases, and a decree was rendered therein. We think it was a chancery proceeding and to be considered in the light of the rules of law which pertain to such suits.

The motion filed January 4, 1936, while called a motion for a new trial, was in truth and effect a motion to set aside the decree and for a rehearing of the cause; the last ground assigned therein reciting “that substantial injustice will be done if the judgment is allowed to stand.” Taken in conjunction with other grounds assigned, this amounts to a prayer to vacate and set aside the decree and award a rehearing. It is the substance and effect of the motion, rather than its form, which determines its character.

It has long been the rule in this State that the losing party in a chancery suit may move for a rehearing, and when the motion is filed during the term at which the decree was entered, its effect is to stay or suspend the operation of the decretal order until the court passes upon the motion, when, if it be overruled, the decree becomes final and at once operative. Watson v. LeGrand Roller Skating Rink Co., 177 Ill. 203; Hibbard v. Mueller, 86 Ill. 256.

The decree in this cause was made final and operative by the overruling of defendant’s motion to vacate the decree and grant a rehearing on March 30, 1936. As such it was the final and appealable order in the case, and defendant properly gave notice of appeal therefrom. As before remarked, defendant failed to perfect such appeal; in fact abandoned it by his motion of July 3, 1936, to strike his own appeal. This motion was denied by the court; however, the counter-motion of plaintiff to dismiss the appeal was sustained on July 23, 1936. When this was done there was no appeal pending.

It appears that the appeal was not taken in the regular course, due to a misconception by defendant of the law governing in such matters. If an appeal can be allowed in all instances where a party is mistaken as to his legal rights, with which he is charged with knowledge, then section 76 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, 204; Jones Ill. Stats. Ann. 104.076, governing the right of appeal by leave of the reviewing court, upon a showing that the delay was not due to culpable negligence of appellant, is meaningless. Defendant’s attorney had practiced within the State practically all of the time the Civil Practice Act has been in effect, and has had equal opportunity with other Illinois attorneys to become familiar with its provisions, including those relative to appeal.

Upon this record we do not think that defendant has shown that diligence in his own behalf necessary to comply with said section 76, and within the rule declared in Roy v. City of Springfield, 282 Ill. App. 238.

For which reason the leave to appeal is denied.

Petition denied.


author: Mr. Justice Murphy

text:
    Alton Banking and Trust Company, Appellee, v. Alton Building and Loan Association, Appellant.

      Opinion filed March 4, 1937.
    Supplemental opinion filed March 17, 1937.
    O’Neill & O’Neill, Chapman & Motz, all of Alton, and Leigh M. Kagy, of Springfield, for appellant; I. W. Gtberson and W. J. Chapman, both of Alton, of'counsel.
    J. P. Streuber, of Alton, and Warnock, Williamson & Burroughs, of Edwardsville, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

The Alton Banking and Trust Company obtained a judgment by confession in the city court of Alton against the Alton Building and Loan Association based upon a promissory note. By agreement of parties the judgment was set aside with leave to defendant to plead. The complaint was in the usual form for an action upon a judgment note. The note was for $20,000, dated July 1, 1933, due on demand with interest at six per cent payable to plaintiff. Attached to the note was a power of attorney authorizing a confession of judgment, including an attorney fee of 10 per cent. The name appearing on the note as the maker was Alton Building and Loan Association, Wm. Feldwisch, pres., W. F.„ Loellke, sec’y. This note was a renewal of a note dated January 4, 1932, similar in form for the same amount and is claimed to have been signed in the same way as the note in controversy. The defendant answered, under oath, denying the execution of the note, alleging that it was a forgery and that the signature, Wm. Feldwisch, was not Feldwisch’s genuine signature, that it had been attached without his authorization, that the name of the defendant had been attached without authorization, that the loan was not made to it and that it had not received any of the consideration.

Plaintiff’s reply, also under oath, alleged that the defendant by reason of its conduct was estopped to deny the signature. Defendant made a motion to strike plaintiff’s reply, which motion was overruled. Defendant assigns that ruling as error. The facts alleged and those proved are practically the same and for the reasons stated in our discussion of the evidence, we consider the plea insufficient and that the court erred in not sustaining the motion.

The case was tried before the court without a jury and resulted in a judgment for plaintiff for $22,726, which included principal,' interest and attorney fees. This appeal is to reverse that judgment.

The name Alton Building and Loan Association as it appeared on the note was placed there by a typewriter. Plaintiff contends the name, Wm. Feldwisch, was his genuine signature or if it was not his genuine signature that it was placed there by Wm. F. Loellke, the secretary of the defendant association, under such circumstances that defendant was estopped to deny it. The signature Wm. F. Loelllce, sec’y, is admitted to bé his genuine signature.

There is not much conflict in the evidence as to the main facts. The plaintiff is engaged in a general banicing business in Alton. The defendant is a building and loan association with its offices across the street from plaintiff.

Wm. C. Gschwend was cashier and vice president of the plaintiff and had served in that capacity since 1927. He was a stockholder in the defendant association and in the early part of 1931 was elected treasurer and served in that capacity during the transactions surrounding the giving of the note in question. During his term of office he attended but one meeting of the board of directors, that on January 8, 1932. At that time he designated the plaintiff bank as the depository for the defendant. For many years prior to December, 1933, defendant carried a checldng account with the plaintiff and had a safety deposit box in the bank. Gschwend, as treasurer, took no active part in the business affairs of the defendant. He took no part in depositing money, writing checks, making financial reports or in the malting of the investments. He received $12 per year as compensation and was treasurer in name only.

Wm. F. Loellke started in plaintiff bank as a messenger 25 years ago, held various positions with bank,' becoming cashier in 1921 which position he held until January, 1926. In January, 1926, he was elected secretary and trust officer. He held the position of secretary from that date until his death in October, 1933. He was a stockholder and served as a director from January 4, 1929, to the date of his death. In January, .1931, and while holding the office of secretary in plaintiff bank, he was elected secretary of defendant association, and continued as such to the date of his death. As secretary and director of the plaintiff bank he attended directors’ meetings and signed papers, where an attestation by a secretary was necessary. He devoted all his time to his official duties as secretary of the defendant loan association. He had general charge of all the business transactions of the defendant, supervision over the office and all employees. All the office records were made by him or under his supervision. He had charge and direction over the deposit of defendant’s money in plaintiff bank, had exclusive access to the safety deposit box in plaintiff bank where defendant kept its securities and valuable papers. He was the contact between the defendant and any one transacting business with it.

Wm. Feldwisch, Sr., was for more than 10 years president of the defendant but did not devote a great deal of his time to its business affairs. For many years he was a depositor in plaintiff bank but held no official connection with it. '

Wm. H. Feldwisch, Jr., was assistant secretary, gave a part of his time to the defendant’s business and conducted a private insurance business using one of defendant’s rooms as an office. Wm. F. Loellke was a son-in-law of Wm. Feldwisch, Sr., and a brother-in-law of Wm. H. Feldwisch, Jr.

For several years, practically all, if not all, of defendant’s banking business was conducted with the plaintiff. The checking account was carried on the bank books and in the deposit pass book in the name 1 ‘ Alton Building and Loan Association. ’ ’ Checks payable to defendant were indorsed by a rubber stamp as follows, “Pay W. C. Grsckwend, Treasurer, W. F. Loellke, Secretary, pay Alton Banking and Trust Company, Alton Building and Loan Association, W. C. Cschwend, Treasurer.” The name of W. C. G-schwend as treasurer did not appear on the deposit records in the bank, or on the pass books. The deposit slips were made in defendant’s office and bore a rubber stamp which read “Wm. F. Loellke, Sec’y, for credit of W. C. Grschwend, treasurer, Alton Building and Loan Association.” These rubber stamps were kept in the office and used by Loellke and Lenore Koch, who was an office employee with general duties including that of bookkeeper. The deposit slips and checks were presented to plaintiff for deposit by Loellke or some of the office employees. Checks issued by defendant and drawn on plaintiff were signed by Loellke with Wm. Feldwisch’s name attached by Loellke by means of a rubber stamp. The practice in all of these matters had been followed for a number of years prior to January 4,1932.

From 1919 to January 4, 1932, defendant did, as often as two or three times a year, borrow money from the plaintiff. February, 1930, the board of directors passed a resolution authorizing the president and secretary to borrow $50,000 from plaintiff during the current year. A similar resolution was passed January 8, 1932, only the amount was fixed at $30,000. It does not appear that any resolution was passed covering the period between said dates.

The notes were given to plaintiff to evidence loans prior to January 4, 1932, and they were, with the exception of one, destroyed by Loellke prior to his death but the evidence shows that they were signed “Alton Building and Loan Association. Wm. Feldwisch, Pres., W. F. Loellke, Sec’y,” the names of the president and secretary being their genuine signatures. It also appears that preparatory to such loans being made the president and secretary or the secretary alone would tell the bank officials they wanted the loan and as soon as the necessary arrangements and approval had been made the note was given. In all cases except once the money received on such loans was deposited in the checking account of the defendant association. The exception was January 15,1930; that loan was for $30,000 and a draft was drawn by plaintiff on the Mercantile Trust Company, St. Louis. This was indorsed to J. G. Boggs, trustee, and was signed in the defendant’s name with the genuine signatures of Wm. Feldwisch, pres., and John P. Bauer who was secretary at that time.

The evidence tends to show that practically all, if not all, the previous notes were due at a fixed time. It appears that in all the previous loans, Loellke took an active part in the arrangements for the loan and in the deposit of the proceeds to defendant’s account.

The circumstances surrounding the making of the original note, January 4,1932, of which the note in controversy is a renewal, is given by G. S. Gschwend, the cashier, and Mrs. Meeden, an employee of the bank and assistant to the cashier. The original note was not produced, it presumably having disappeared the same time the other notes were destroyed.

The note is described as being on a blank furnished by the bank. It was received by Gschwend and he and Mrs. Meeden made the entries and notations such as were made on notes in the regular course of business. The entries made and the procedure following its receipt is set forth in detail in the evidence but it will suffice to say that it was handled in the regular way including the presentation of it to the board of directors and exhibiting it to the bank examiner for regular inspection. At the request of Loellke, the plaintiff issued and delivered to him four cashier’s checks covering the $20,000 loan as follows: First National Bank of St. Louis $8,250; First National Bank of St. Louis $2,950; Mercantile Commerce Bank and Trust Company $6,000; First National Bank and Trust Company in Alton $2,800.

Immediately thereafter Loellke delivered these cashier’s cheeks to the payees named and the proceeds were used in the payment of his personal obligations to the respective banks named as payees or in establishing a personal credit in the bank which was withdrawn before his defalcations were discovered. Some of his personal indebtedness to these various banks was secured by collateral in the form of State highway bonds. These were returned to Loellke at the time of the payment of his debt and subsequently they were sold by plaintiff at Loellke’s request and the proceeds credited to defendant’s account in the bank. These bonds were the property of the loan association and plaintiff’s theory is that the securities were taken by Loellke from the safety deposit box of the defendant in the bank and used by him as collateral to his personal indebtedness. It is a reasonable inference but it also appears that neither the defendant nor any of its officers knew that Loellke had taken the bonds from the safety deposit box and used them as collateral and did not know it until long after Loellke’s death.

On three occasions plaintiff gave notice by mail of interest due and each time it was addressed to Alton Building and Loan Association. All mail coming to the defendant was handled by Loellke and the evidence shows that none of the other officers or employees ever saw any of the notices.

Loellke paid interest three times. The first two were by the check of the defendant payable to plaintiff with the name of Wm. Feldwisch attached by rubber stamp which was the usual practice followed in the issuance of checks. Each of these items was entered by Loellke on the miscellaneous expenditure record and charged against accounts difficult to trace. To balance the account against which they were charged false entries were made in Loellke’s handwriting. In one instance the charge being against a particular property owned by the defendant and to balance the account Loellke made an entry increasing the value of the property the amount of the charge. These entries were not discovered by defendant until after Loellke’s death. The third and last payment of interest made in July, 1933, was from Loellke’s personal funds.

A few days prior to July 1,1933, the date of the note in controversy, plaintiff, through one of its employees, told Loellke it should be renewed. After a lapse of a few days one of plaintiff’s employees, Mayme Oetken, called at defendant’s office and asked Loellke if the note was ready to which Loellke replied it had not been signed but would be in a few days. In a short time thereafter Loellke appeared at the bank with the note and the evidence shows that the entries and notations were made on the records of the bank the same as on the previous note and according to its usual practice.

Mr. Gfschwend called Wm. Feldwisch’s and Wm. H. Feldwisch, Jr.’s attention to the note sued on in the latter part of December, 1933, and they testified that this was the first information they had of the existence of the note. It also appears that the first that plaintiff or any of the officers or agents knew that the signature was questioned was the first interview they had with the Feldwisches in December, 1933. Upon investigation which then followed the fraudulent schemes.and plans of Loellke were revealed. It also appears that the plaintiff made a loan to the defendant February 5, 1932, for $10,000. The proceeds of this loan were deposited to defendant’s account and were paid by defendant April 5 following. On February 10, defendant’s checking account was overdrawn and Gfschwend called Loellke’s attention to it. Loellke said they would borrow $10,000 but Gfschwend told him they had borrowed to the extent of their allowance which was $30,000, being the $20,000 borrowed January á and $10,000 February 5. Loellke said he would see Wm. Feldwisch about it. He returned with a note which he said was signed by Feldwisch, personally. The plaintiff accepted it as a loan to Wm. Feldwisch, personally, and credited the proceeds to defendant’s account. Plaintiff did not talk to Feldwisch about it and no notice of maturity or interest was sent to him. The note was paid the following May by defendant. Feldwisch denies that he signed such a note and testified that he did not have any knowledge of it until the investigation following Loellke’s death.

Plaintiff’s officers and employees who were acquainted with the signature of Wm. Feldwisch gave it as their opinion that the name William Feldwisch on the note was his genuine signature. Wm. Feldwisch denied that it was his signature and several witnesses including officers and employees of the defendant testified that it was not his signature. The original note and several admitted signatures introduced for comparison have been certified to this court for our examination. The trial court filed a written opinion which appears in the record and in it he expressly finds that the signature of Wm. Feldwisch was a forgery. From an examination of the exhibits and the evidence, we are satisfied that the finding of the trial court upon that issue is supported by the evidence.

In an action at law where the case is tried before the court without a jury and the court has had an opportunity to hear the witnesses and to observe their demeanor while testifying, it is not within the province of the court of review to substitute its findings of fact for that of the trial court unless the findings of the trial court are manifestly against the weight of evidence. Wear Proof Mat Co. v. Bastian-Morley Co., 268 Ill. App. 455, 464; Siegel v. Dickinson, 163 Ill. App. 26; Kelly v. Chicago City Ry. Co., 202 Ill. App. 239.

Since the case is to be treated as a forgery we must look to the rights and liabilities of the parties as they arise out of such a transaction,

Section 23 of the Negotiable Instruments Act, chapter 98, Ill. State Bar Stats. 1935, if 43; Jones Ill. Stats. Ann. 89.043, provides that where a signature is forged or made without authority it is wholly inoperative and cannot be enforced “unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.” It is under this latter sentence that plaintiff seeks to hold defendant liable, contending that defendant’s conduct in reference to Loellke’s employment and the authority it had conferred upon him covering a long period of time now estops it from denying liability on the note.

Before a party can assert an estoppel against another, two things must be proved: first, that he acted and relied upon the conduct or representation of the party sought to be estopped, and second, that he was without knowledge of such facts and had no ready means by which he could have acquired it. In Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567, it is stated “A party claiming the benefit of an estoppel cannot shut its eyes to obvious facts or neglect to seek information that is easily accessible, and then charge his ignorance to others.” Gallagher v. Northrup, 215 Ill. 563; Payne v. Hutson, 264 Ill. App. 508.

The plaintiff, being a banking institution, was under obligation to the defendant, its depositor and customer, to use due and reasonable care to detect fraud and forgery in a case where it was going to advance money on the credit of the defendant.

It does not appear that they made any investigation or asked a single question to determine the genuineness of the signature. It appears that the note was taken and handled in the same way that it would have been had Feldwisch appeared in the bank and in the presence of the cashier or other officers signed his name. Plaintiff knew they were dealing with a corporation that could only act through its officers and agents and that the source of their authority was through the action of the board of directors and yet no effort was made to trace that authority to its source.

The evidence does not show that defendant through its officers or agents had any knowledge of Loellke’s misconduct. Notice to Loellke was not notice to the defendant under that well defined exception, that notice will not be imputed to the principal where the facts authorize the inference that the agent will conceal the information. That is the presumption where it would be detrimental to the agent’s interests to disclose the facts. Merchants Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41, 53.

Plaintiff seeks justification for such failure to ascertain the facts by saying that defendant’s long established custom of doing business with it was such that no inquiry on its part was necessary.

The custom upon which plaintiff relies must be in reference to transactions like the one in question. A practice of permitting Loellke to have charge of the books, to receive money, to indorse checks, to deposit funds in its account in the bank would not be sufficient to establish an implied authority in Loellke to borrow money on the credit of the defendant.

Merchants Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41, was an action by a bank to recover an overdraft which had been caused by the wrongful issuance of checks by defendant’s agent. The court held that the overdraft was to be treated as a loan and on page 49 said, “The source of authority is the principal, and the power of the agent can only be proved by tracing it to that source in some word or act of the alleged principal. In this case there was no evidence tending to prove that the power to borrow money was an incident of the agency. For such an act as that, an agent must have express authority, or some power must be expressly conferred upon him which cannot be otherwise executed. The fact that the defendant carried on the sale of its products through the medium of agencies distributed over the country would be no ground for a conclusion that the various agents for making sales of machinery and collecting the proceeds were clothed with authority to borrow money.” In the same case commenting on Jackson Paper Co. v. Commercial Nat. Bank, 199 Ill. 155, the court said, “The proof that an agent was the superintendent and manager of a mill, having charge of buying material, hiring men and manufacturing and selling paper, did not justify an inference that he had authority to indorse checks, and surely the same facts or the facts in this case would not justify an inference that Harte (agent) had the more unusual power to borrow money and pledge the credit of the defendant.” No inference that Loellke had power to borrow money could arise from the fact that he was secretary of the defendant association. Independent Oil Men’s Ass’n v. Ft. Dearborn Nat. Bank, 311 Ill. 278, 282.

Looking to those facts disclosed by the evidence which plaintiff contends establishes a custom, we find that the loans were always for a definite time and for large amounts; the notes were on blanks furnished by the bank; they were recorded and identified on the books of the bank in the same way. Loellke usually arranged for the loan and appeared at the bank with the note when executed and directed the application of the proceeds.

On the other hand the facts shown which distinguish this transaction from the others are that this note was a demand note, that the proceeds were not directed by Loellke to be paid into defendant’s account but were under his direction to be paid to other banks.

These differences are in our opinion sufficient to show that the note was not handled in accordance with a long established custom as contended for by plaintiff. After plaintiff accepted the note from Loellke and the credit of defendant was pledged to the bank for the amount of . the note, the duty then rested upon the plaintiff to see that the $20,000 which it held as the money of the defendant was applied to the uses of the defendant.

The law of this State is that the power of an agent of a corporation to borrow money will not be inferred from a power given to collect, to deposit, to write checks, indorse checks and act as general manager of its business. Nor can it be inferred from the fact that he is authorized to make investments with the corporation’s funds or that he was permitted to have sole access to the contents of its safety deposit box.

The plaintiff’s officers knew Loellke before he became secretary for the defendant. He had held a trusted and honored position with that institution and apparently fulfilled his duties in that capacity in an honorable and commendable way, so much so that after the termination of his active duties plaintiff continued him as its secretary. Plaintiff made the loan relying more upon what it knew of his past and the services he had performed for it and the confidence and trust they had in him than upon any authority or inferences of power given him by the defendant. Such being the case, the loss arises by reason of its misplaced confidence and its lack of diligence in endeavoring to ascertain the extent of his authority.

Plaintiff contends that the bank was an innocent party and that where one of two innocent parties must suffer by reason of a wrongful act of another the one should bear it who made it possible for it to occur. The trial court adopted that view. The basis of the rule is that there must be two innocent parties. The one who seeks the application of the rule must have used due diligence in the matter and exercised reasonable care to avoid the conditions which gave rise to the injury.

We hold that the evidence does not show that plaintiff exercised due diligence in detecting Loellke’s fraud and trickery and that the “two innocent parties” rule has no application. Paine v. Sheridan Trust & Savings Bank, 255 Ill. App. 250; St. Charles Savings Bank v. Edwards, 243 Mo. 553, 570; Quincy Mut. Fire Ins. Co. v. International Trust Co., 217 Mass. 370, 374.

Defendant urges other grounds for reversal but in view of our holding it is not necessary to consider them.

Under the views expressed we are of the opinion that the defendant was not precluded from defending on the ground that Wm. Feldwisch’s name was a forgery and that the court erred in so holding.

Judgment reversed and cause remanded.

Reversed and remanded.

Supplemental Opinion.

Since the filing of the foregoing opinion the parties have filed a stipulation which provides that this court may consider the record as containing all the pleadings and evidence which either party could present on a further hearing, and that a final judgment may be entered in this court. Pursuant to said stipulation, the judgment of the lower court is reversed.

Judgment reversed.


text:
    Mollie D. Hall et al., Appellees, v. Marshall F. Hutton, Appellant.
    Opinion filed March 4, 1937.
    Charles T. Flota, of Harrisburg, for appellant.
    Milo D. Yelvtngton, of Newton, for certain appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Mollie D. Hall as executrix of the will of John W. Hutton, deceased, filed a petition to sell real estate to pay debts. The petition contained an allegation that certain premises therein described were subject to a mortgage lien of $4,000, which mortgage was held by Marshall F. Hutton. Mae Hutton, the widow, Marshall F. Hutton and others were made parties defendant. Answers were filed and on the issue raised the trial court held that the $4,000 mortgage lien held by Marshall F. Hutton was void and of no force and effect as against the widow and the creditors of J ohn W. Hntton, deceased, and ordered it canceled and held for naught as against the widow and creditors of said estate. Marshall F. Hutton appealed from that decree. Mae Hutton is the only appellee who has filed a brief.

The evidence shows that John W. Hutton and his wife, Mae Hutton, executed the mortgage in question in 1923. It was given to secure the payment of a $4,000 note payable on the amortization plan extending over a period of 33 years. The note and mortgage were to the Central Illinois Joint Stock Land Bank of Green-ville ; this bank assigned the note and mortgage to the St. Louis Joint Stock Land Bank and when this bank went into a receivership, the note and mortgage passed to the receiver as assets of the receivership estate. Certain buildings located on the premises, and which were insured against loss by fire, were burned and the insurance company carrying the risk adjusted the loss and in February, 1935, mailed to the receiver a draft payable to John W. Hutton and the receiver. The receiver placed the proceeds in a John W. Hutton trust account and on March 22, John W. Hutton went from his home in Newton to St. Louis and the receiver drew two checks both payable to John W. Hutton, one for the total balance unpaid on the mortgage and the other for the remainder of the insurance settlement. Hutton indorsed the check for the amount of the unpaid balance of the mortgage debt and delivered it to the receiver. The receiver, at the request of Hutton, executed a written instrument assigning the note and mortgage without recourse to the appellant. Appellant was not present and the note, mortgage and assignment were delivered to John W. Hutton. He took them to his office in Newton and gave them to his secretary with directions to mail to appellant at Hartsburg, Illinois. On March 25, she mailed the instruments as directed. On March 26, J ohn W. Hutton was accidentally killed.

The evidence tends to show that John W. Hntton was indebted to appellant for about $4,000 and that he had the note and mortgage assigned to him with the intent of securing such indebtedness.

It is conceded that appellee, Mae Hutton, had executed the mortgage and released her homestead rights in the premises. She now claims .that the note and mortgage were paid by John W. Hutton and that it could not as against her rights as a widow holding a homestead interest be reissued to secure a new and different debt.

It is clear that the money used to pay the debt to the receiver was the money of John W. Hutton. The instruments were assigned by the receiver to appellant at John Hutton’s request. It does not appear that appellant knew of the proposed assignment to him nor that he ever negotiated with the receiver in reference to the same. Such a transaction has all the characteristics of a settlement or payment by the one who was under obligation to pay and there is nothing to denote a purchase of the note and mortgage by appellant. It was an attempt by the mortgagor, John W. Hutton, to reissue the note and mortgage which had been paid and have the lien of the mortgage stand as security to a new and different debt.

In Spencer v. Fredendall, 15 Wis. 666, the court held that a husband could not keep alive for the purpose of securing a new debt, as against the wife, a mortgage on the homestead which had been paid, because it was in effect making a new mortgage and could not be valid under the statute regarding homestead without the signature of the wife.

In Binford v. Adams, 104 Ind. 41, 3 N. E. 753, the court said, "There is an important difference between the payment of a note and the purchase of it from the owner. Payment is the discharge of a debt. The purchase of a note is a contract of sale. The sale of a note, in order to be valid, must be made by a buyer to a seller; there must be mutual assent, and there must also be a consideration.” Daniel says: “Payment is not a contract. It is the discharge of a contract in which the party of the first part has a right to demand payment, and the party of the second part has a right to make payment. A sale is altogether different. It is a contract which does not extinguish a bill or note, but continues it in circulation as a valid security against all parties. And it is necessary, to constitute a transaction a sale, that both parties should then expressly or impliedly agree; the one to sell, and the other to purchase the paper.”

In Porter v. Title Guaranty & Surety Co., 17 Idaho 364, 106 Pac. 299, the court held that payment is the discharge of a debt and is not a contract. The purchase of a note and mortgage is a contract of sale requiring the mutual assent, either express or implied, of a buyer and seller and a consideration and there held that inasmuch as the money used to pay the debt was the money of the mortgagor it was a payment which extinguished the mortgage lien.

In Peiffer v. Bates, 45 N. J. Eq. 311, the mortgage was paid with the proceeds of a check given to settle a fire loss on buildings located on the premises and it was held that this was a payment of the mortgage and as against subsequent lien holders the mortgage was void.

In Lanphier v. Desmond, 187 Ill. 370, it was held that where the grantor in the trust deed paid the indebtedness and the note and trust deed were returned to him that the lien' of such trust deed was extinguished as against one to whom he had, prior to such payment, conveyed the premises by a deed of warranty.

The rule is stated in 41 C. J. 826 thus: “Although a mortgage may be kept alive, even when the indebtedness which it was given to secure has been paid, by one whose duty it was to do so, if it is evident that it is so intended, it is generally held that, when the indebtedness is in fact paid and there is no equitable reason for keeping the mortgage afoot, it cannot be subsequently resuscitated and reissued as security for a new or different debt between the original parties or reissued to a different creditor. Certainly no such arrangement can be made to the prejudice of the intervening rights of subsequent purchasers or encumbrancers or creditors of the mortgagor.”

Under the issues presented we are only required to rule upon the validity of appellant’s mortgage lien and we are not passing upon the validity of any indebtedness that appellant may claim to hold against the estate of John W. Hutton. The lien of the mortgage in question was extinguished by the payment of the debt which it secured and is void as against appellees’ right of homestead and the claims of the creditors of John W. Hutton, deceased.

The decree of the trial court is affirmed.

Decree affirmed.


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    Virginia Barmann, Appellee, v. Ralph McConachie, Appellant.

      Opinion filed March 4, 1937.
    L. E. Stewart and P. K. Johnson, of Belleville, for appellant.
    William H. Schuweric, of Chester, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Plaintiff brought this action to recover damages for personal injuries alleged to have been caused by-defendant’s wilful and wanton negligence in the operation of his automobile at a time when plaintiff was riding with him as his guest.

The first three paragraphs of count one, all of which are adopted as similar numbered paragraphs in the other four counts, allege in substance that on the night of October 4, 1935, at about 12:30 o’clock defendant was driving his automobile on the paved highway north of Sparta and that plaintiff riding as his guest was sitting in the front seat and went to sleep and that defendant knew she was asleep. The first count alleges that the defendant being tired, exhausted and sleepy knew and was conscious of the fact that he was about to fall asleep and being conscious that if he did fall asleep while he was operating his automobile it would probably result in injury to others, particularly the plaintiff, and with an entire absence of care for the life, person or property of others, and with a conscious indifference to the surrounding circumstances and conditions and with wilful disregard of the consequences wilfully and wantonly drove his automobile at a speed of approximately 40 miles per hour and that while so operating the automobile the defendant fell asleep, thereby losing control of his automobile and injuring plaintiff. The second count alleges that it was the duty of defendant not to wantonly and wilfully injure the plaintiff, yet in disregard of the duty he wilfully and wantonly drove his automobile at a speed of 40 miles per hour at a time he knew he was drowsy, sleepy and about to fall asleep and did fall asleep and lost control of his automobile resulting in injury to plaintiff. The third and fourth counts are similar in substance to the first two counts and the fifth count charges general wilful and wanton negligence in the operation of the automobile. Defendant answered denying all charges of wilful and wanton negligence.

The case was tried with a jury resulting in a verdict for plaintiff for $6,500. After a remittitur of $1,500 was filed, judgment was entered for $5,000.

The court’s rulings on the defendant’s motion for a directed verdict and new trial present the question whether or not the defendant was guilty of wilful and wanton misconduct within the meaning of the “Guest” section of the Motor Vehicle Law, Ill. State Bar Stats. 1935, ch. 95a, j[ 47(5); Jones Ill. Stats. Ann. 85.064(1).

The facts are not in dispute. Plaintiff called defendant for cross-examination under the provisions of section 60 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, II188; Jones Ill. Stats. Ann. 104.060. His testimony is the only evidence bearing upon the cause of the accident and the alleged negligence.

Defendant, a young man age 24, and plaintiff, a young lady age 20, both resided in Sparta and on the evening of the accident he invited her to accompany him to a dance to be held at a tavern in Chester, a distance of about 20 miles from Sparta. They arrived at Chester about eight o’clock, each had two drinks of whisky soon after they arrived but did not drink any more that evening. They danced until about 12 o’clock and started towards Sparta. On the way from Chester to Sparta they concluded to go to Moffat’s restaurant which was six or seven miles on the other side, that is, north, of Sparta. Soon after this arrangement was made plaintiff told defendant she was sleepy and defendant told her to go to sleep and he would drive. Plaintiff awakened at Sparta but soon fell asleep and remained asleep until the accident which occurred about four miles north of Sparta and two and one-half miles from Moffat’s. Defendant testified as follows: “It was about a quarter to one when we left Sparta going to Moffat’s. I was sober and had all my mental faculties. I drove to Sparta. Had not driven off the highway and was able to control my car to Sparta. I realized I was sleepy. First realized this about four miles out of Sparta. I did not inform Miss Barmann that I was sleepy. At that time I was driving about forty miles an hour and continued to operate at that speed. I felt at that time as I ordinarily feel when I am about to go to. sleep. At that time I would say I was between two and two and a half miles from this restaurant, and I continued driving toward the restaurant. Then the first thing I knew was the crash. After the crash my car was out in the field along side of a telephone post. ’ ’ When called in his own behalf he testified substantially as above and added, “When I became sleepy I judged we were about four miles north of town and between a half a mile and a mile from the place of the accident. I kept driving because I thought I could make the rest of the way. I did not intend to go to sleep. I intended to go to Moffat’s.” On cross-examination he testified that he thought he could make it to Moffat’s before he went to sleep, that he knew he could have a wreck but that he thought he could get to Moffat’s where he could get coffee and something to eat.

Plaintiff testified that she went to sleep after they left Chester, awakened at a stop sign in Sparta, asked defendant where they were and he told her and she again fell asleep and knew nothing until the accident.

The evidence discloses that the road was level for some distance south of the scene of the accident, that defendant’s automobile crossed the pavement to the driver’s left, crashed through a wire fence breaking down two or three posts and coming to a stop against a telephone pole. It had traveled 138 feet from where it left the pavement to the place where it stopped.

Sec. 42-1, par. 47(5), ch. 95a, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 85.064(1) (par. b, sec. 58, ch. 95%, Smith Hurd) provides that no person riding as a guest shall have a cause of action for damages against the driver of an automobile unless such accident shall have been caused by the wilful and wanton misconduct of the driver and unless such conduct contributed to the injury.

In Walldren Express & Van Co. v. Krug, 291 Ill. 472, 478, it was said, “The words ‘wanton,’ ‘wantonly’ and ‘wantonness,’ ‘willful,’ ‘willfully’ and ‘willfulness’ have been used to express the same thing. ’ ’

In Chicago City Ry. Co. v. Jordan, 215 Ill. 390, it was said, “Where there is a particular intention to injure, or a degree of willful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes willful or wanton. In such a case there may be an actual intent to injure, or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended.”

In Bernier v. Illinois Cent. R. Co., 296 Ill. 464, the court said, “Ill-will is not a necessary element of a wanton act. To constitute a wanton act the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a willful or wanton act. Whether an act is willful or wanton is greatly dependent upon the particular circumstances of each case. Where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of willfulness or wantonness.”

In Murphy v. King, 284 Ill. App. 74, it was said, “We do not believe that in cases of this kind, that, to be guilty of willful and wanton negligence as defined in the law, one must necessarily be in the state of mind of a person who has a feeling of ill will against the injured party and who intends to commit the injury complained of. A conscious indifference to consequences which is shown by an intentional disregard of a known duty necessary to the safety of the person or property of another would come within the definition of willful and wanton negligence.”

Defendant says he knew that plaintiff was asleep and that he was aware of the possibilities of an accident if he went to sleep while driving. With a knowledge of these things he becomes conscious of the fact that he is sleepy. He is then driving at 40 miles per hour. He undertakes the struggle with himself of keeping awake until he can reach Moffat’s, a distance of two or three miles. Of course in so doing he did not intend that plaintiff should be injured by reason of his act but his conduct showed such an intentional disregard of the duty that rested upon him to exercise care and such a conscious indifference to the consequences that might follow from his act that the jury could readily find him guilty of wilful and wanton misconduct.

Defendant cites and relies upon Armstrong v. Cook, 250 Mich. 180, where the driver fainted while driving his car, and Kaplan v. Kaplan, 213 Iowa 646, where a man driving a car on a country road facing the sun on a warm day, fell asleep but did not know that he was about to go to sleep, In those cases it was held that the driver was not guilty of wilful and wanton negligence. Those cases are distinguishable from the case at bar in that the defendant in this case was conscious of the fact that he was sleepy and yet continued to drive some distance before he went to sleep and the accident occurred.

In Manser v. Eder, 263 Mich. 107, 248 N. W. 563, where the guest had aroused defendant after he had fallen asleep and driven into a safety zone and then went back to sleep and drove into another safety zone, it was held that he was guilty of wilful and wanton misconduct.

In Potz v. Williams, 113 Conn. 278, 155 Atl. 211, a defendant was held to be guilty of reckless misconduct as defined by statute where he had been driving alone most of the day, was tired and yawned a good deal and then about midnight went to sleep and let his car swerve from the road.

In Hardgrove v. Bade, 190 Minn. 523, where the driver after driving all night for over 300 miles and after refusing several times to permit his lady guest to drive, it was held to be a question for the jury to say whether defendant was guilty of gross negligence.

Defendant seriously contends that defendant’s failure to judge correctly of his ability to resist sleep was an error of judgment and that it will not support a finding of wilful and wanton negligence. Defendant’s act did not arise from an error of judgment. It came about by reason of his failure to exercise judgment. He permitted himself to go to sleep while driving and an act of omission may be made the basis of wilful and wanton negligence, the same as an act of commission.

The finding of the jury that the defendant was guilty of wilful and wanton negligence is supported by the law and evidence.

Defendant contends that plaintiff’s act in willingly going with the defendant past her home in Sparta to Moffat’s and in going to sleep was the proximate cause of her injury. Under the evidence in this case that question was for the jury. Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.

In defendant’s brief and argument he says that it was error to give any of plaintiff’s instructions without pointing out which ones and in what respect they were wrong. Under the heading Defendant’s Instruction, he states that it was error to refuse any of his instructions. There were four refused but he does not point out in what particular they are applicable.

Under these conditions, instructions need not be reviewed. Pollock v. Pollock, 328 Ill. 179; Duggan v. Ryan, 211 Ill. 133.

Finding no reversible error, the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Gus Bombal et al., Appellants, v. Peoples State Bank of Ramsey et al., Appellees.
    Opinion filed March 4, 1937.

      Arthur Bob and Charles B. Myers, both .of Vandalia, for appellants.
    J. Gr. Burnside, of Vandalia, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.

Plaintiffs were creditors of the Peoples State Bank of Bamsey and for themselves and on behalf of the other creditors of the bank instituted this suit to enforce the stockholders’ superadded liability. Bose Hunt Taylor was one of the defendants. The sole question is as to the extent of her liability.

The bank was incorporated in 1911 was a capital stock of $30,000 with 300 shares each with a par value of $100. The auditor of public accounts closed the bank February 2, 1931. August 28, 1922, defendant became the owner of six shares of stock evidenced by certificate No. 187. She owned this stock continuously from date of issuance to January 21, 1930. On this latter date she indorsed the certificate to Fred Taylor, her husband, who surrendered the certificate and a new certificate No. 214 for six shares was issued in his name. It was alleged and proven that the purpose of transferring defendant’s shares to her husband was so that he would have at least 10 shares and could then qualify as a director of the bank. It was also proven that the agreement between the defendant and her husband was that the six shares were-transferred to tiim as an accommodation and would be retransferred to defendant as soon as he could procure other shares. March 7, following, Fred Taylor purchased six shares from one Effie Whitten and certificate No. 220 was issued to defendant for that number of shares. She owned these shares until the bank closed. In June and December of 1930, she received dividends of $18 on certificate No. 220.

By an audit it was found that the ownership of the stock was divided into 73 transfer periods, defendant’s ownership of certificate No. 187, from August 28,1922, to January 21, 1930, covered periods 48 to 64 inclusive. Of the amount deposited in the bank during that period there remained unpaid on date of closing $16,217.57. Of the deposit liability created after March 7, 1930, there remained on date of closing the bank over $120,000. Defendant has paid $600 as her assessment on certificate No. 220 but plaintiff contends that she owed an additional $600 for the liability accruing on the stock evidenced by certificate No. 187. The trial court adopted defendant’s theory and plaintiff appealed from that decree.

Section 6 of Article 11 of the Constitution provides, “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.”

The sixth section of the Banking Act of 1919 (Laws of 1919, p. 226) contains substantially the same language and in addition requires that the names of the shareholders and the amount of stock they own shall be made a matter of public record.

In Golden v. Cervenka, 278 Ill. 409, 439, the court in discussing the purpose of this statutory enactment and the method of transfer of stock said, “The object of this record is to give information as to the names of the stockholders and persons dealing with the bank have a right to rely upon the list of stockholders shown by the record. The stock can be transferred only on the books of the association and only those persons have the rights and liabilities of stockholders who appear to be such on the books of the association. The stockholder registered as such on the books of the bank can be relieved from liability only by a transfer of Ms stock on the books.”

In the Golden case the court construed the constitutional provision and the statute in reference to the liability of the stockholders and on page 420 said, “Under the constitution and the statute the stockholder is responsible to the amount of Ms stock for all the liabilities of the bank which are incurred during Ms ownership of stock and no more, and such responsibility continues until the liability is paid or otherwise discharged.”

In Sanders v. Merchants State Bank, 349 Ill. 547, the Supreme Court was again considering the constitutional provisions and followed Golden v. Cervenka, supra, and on page 556 said, “If the owner of one share of stock has been such owner since the orgamzation of the bank until its failure twenty years later, Ms liability for its debts is limited to $100. If he is the owner of another share which was transferred to him witMn a week of the bank’s failure, Ms liability on account of this share is also limited to $100. This share may, however, have been transferred a dozen times, and while the liability of each one of the other eleven owners of the share is limited to $100, the several liabilities _ on the one share may aggregate $1200. The constitution suggests no method of terminating the successive personal liability of each holder to the amount of his stock except the payment of the debts for which he is bound, unless there is some statute of limitations applicable to the case.”

Under the holdings in these cases and the reasons adopted it is apparent that if the defendant owned six shares of stock continuously from Aug. 1923, to the date the bank closed, then her liability would be but $600. The cases quoted hold that there may be a liability to the successive owners of a share of stock for the debts accruing- during their respective periods of ownersMp.

Defendant contends that the transfer of the stock to her husband was but for a temporary purpose and made with the agreement that it was to be returned to her and that when certificate No. 220 was issued to her it was a return of her original stock and that therefore she has never owned but six shares of stock. In view of that contention it becomes necessary to consider the legal effect of that transfer. Every requirement of the statute to effect a legal transfer of the stock was taken. It appeared on the records of the bank that the six shares defendant owned had been transferred to Fred Taylor. Defendant’s contention requires consideration of the legal effect upon the record of the agreement between defendant and her husband. As stated the purpose of the transfer was to place in his name in the books' of the bank a sufficient number of shares of stock to meet the statutory requirement so that he could qualify as a director.

Ill. State Bar Stats. 1935, ch. 16a, fí4; Jones Ill. Stats. Ann. 10.04 (section 4, chapter 16%, SmithHurd) provides that every director “must own in his own right, free of any lien or encumbrance, shares of the capital stock of the bank or association of which he is a director, the aggregate par value of which shall not be less than $1,000 and stock certificates evidencing the capital stock of such bank or association of which he is a director, the aggregate par value of which shall not be less than $1,000 issued in his name, shall be filed unendorsed and unassigned by him with the cashier of such bank or association during his term as director.” To comply with these statutory provisions it was necessary that Fred Taylor own the stock in his own right, free of any lien or incumbrance, and since defendant elected to clothe him-with such ownership so that he could qualify as a director, we will now hold that the effect of the transfer- of the stock to Fred Taylor on Jan. 21, 1930, was complete and absolute and that defendant’s ownership of that partieular stock was terminated. For the purposes here she did not own any stock from Jan. 21,1930, to Mar. 7. When stock was issued to her on Mar. 7, it was a new transaction and started a new period for which she would be liable for debts accruing during that period. It has been held in the cases cited that there is a liability against successive owners of a single share of stock and we can perceive of no reason why a person who held stock at various intervals would not be liable for the debts that accrued during the several periods of ownership of stock.

Defendant contends that the Supreme Court in Heine v. Degen, 362 Ill. 357, changed the rule as to liability to successive owners as announced in the Sanders case. In the Heine case the court was not considering the liability of stockholders but was considering what was meant by the word, creditors, as used in the constitutional provision. On page 366 the court said, “The word ‘creditors’ has not been construed in any of the representative suits against stockholders called to our attention. Whether it means creditors generally or individual creditors must be ascertained. Its meaning was not in issue in Golden v. Cervenka, supra, or in Sanders v. Merchants State Bank” and on page 371 the court said, “The respective stockholders are in no way affected by this holding. The maximum amount for which they are liable is fixed by the face value of their shares of stock and this is further limited to the liabilities which accrued during the time the individual stockholder owned his shares. ’ ’

For the reasons assigned the decree of the trial court is reversed and cause remanded with directions, to enter a decree in accordance with the views herein expressed.

Reversed and remanded with directions.