author: Mr. Justice Matchett

text:
    George W. Ledford et al., Appellants, v. Chicago, Milwaukee, St. Paul and Pacific Railroad Company et al., Appellees.
    Gen. No. 40,128.

      Opinion filed January 16, 1939.
    Rehearing denied January 30, 1939.
    Soelke, Koehn & Loewy, of Chicago, for appellants.
    M. L. Bluhm and Bruce S. Parki-iill, both of Chicago, for.certain appellee; C. S. Jefferson, of Chicago, of counsel.
    Adams, Nelson & Williamson, for certain other appellee; Robert McCormick Adams and E. Douglas Sohwantes, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs, on August 19, 1937, filed a complaint which was stricken on motion of defendants. By leave of court an amended complaint was filed. Defendants again moved to strike. Their motions were granted and the suit dismissed for want of equity.

From the amended complaint it appears plaintiffs (9 in number) were at times between August 5, 1925, and October 14, 1926, employed by the defendant railroad, or its predecessor (common carriers engaged in intra- and interstate commerce), to serve as switch-men at its terminal yards in Chicago and at Benson-ville, Illinois. Plaintiffs are skilled in such service, have devoted their lives thereto and are without other trade or calling. Continuously for years prior to and up to the time they entered upon this service there was in force and effect as to switchmen a general custom, usage and practice known as a system of seniority rights. This system became a part of plaintiffs’ contracts of employment, was relied on, and established in the plaintiffs’ vested property rights. The railroad maintained a “Seniority Roster” showing the names of switchmen employed and the date of employment in the order of seniority. Switchmen who had served longest were entitled to appear thereon prior to employees whose hiring was subsequent. Under this system, after lay-offs by reason of slackness of work, upon resumption of work assignments were made from this roster and employees shown to be longest in service enjoyed a prior claim to be called to resume work superior to employees of the same class who were junior in service. At the time plaintiffs entered the service they had knowledge of this system, relied on it, were thereby induced to enter the employment and upon the dates entering into service, by mutual agreement the rights and benefits accruing to them under the system became an integral part and condition of the terms of their contracts. By this system plaintiffs were assured by the employer of the right to work as switchmen until they should attain the age of retirement under the Federal Pension Laws so long as they were available, ready, willing, capable and competent, subject only to possible lay-offs. Their employer further assured plaintiffs they would not be discharged except for cause.

The amended complaint avers that as their time of service lengthened the seniority rights of plaintiffs became more valuable in that opportunities for promotion were improved, the amount of pension to which plaintiffs would become entitled under the statutes of the United States was increased, and in consequence the seniority rights of plaintiffs became vested, valuable and continuing property rights of inestimable value.

The amended complaint specifically avers these seniority rights were not dependent upon membership in a labor union and that no working* rule, express or implied, existed which required them to be or become or continue to be members of any labor organization. These seniority rights were recognized by the defendant railroad up to July 19,1935. Plaintiffs have never quit their employment, have not been discharged or dismissed, but on that date were laid off only because of slackness of work. They have never been recalled although at all times available, ready, willing and competent, and although such work has since become available.

The amended complaint describes the seniority roster in detail, effective as of the dates of original employment, avers that the roster is in the possession of the employer and not available to plaintiffs. The amended complaint makes defendants the railroad, certain named members and officers of the Brotherhood of Railroad Trainmen, being* officers and members of Majority Lodge No. 119 of the union, and avers on information and belief that because plaintiffs are not members of the Brotherhood they are subjects of its ill will and disfavor, and that these particular defendants, intending to deprive ,the plaintiffs of their right to work and with the intention to cause the employer to unfairly discriminate against them and in favor of members of their union who are junior to plaintiffs in point of service and in the matter of seniority rights, “by divers unfair arts, devices, threats and arguments, in divers meetings with said employer, in the absence of plaintiffs, unlawfully coerced and persuaded said employer, and wilfully and unlawfully combined, conspired and confederated together with said employer, its officers and agents, at divers times and places, unknown to plaintiffs, but since July 19, 1935, to deprive and defraud plaintiffs of their employment con-, tract and their seniority rights, and to totally destroy plaintiffs’ right to work and to their said seniority rights, to the great pecuniary loss and injury and prejudice of the plaintiffs.”

The amended complaint avers that soon after July 19,1935, it became expedient for the defendant railroad to employ more switchmen at the Chicago terminal; that an opportunity for such work existed and still exists there, but that pursuant to the conspiracy described and in furtherance of it, the employer has ever since July 19, 1935, failed to recall any of the plaintiffs to work although they were entitled to be called under the system of seniority rights and were and still are available, ready, able and willing, etc.; that the employer,'yielding to coercion, breached its contract of employment with plaintiffs and filled the positions formerly occupied by plaintiffs with switchmen who are junior in point of service, and defendants threaten and will continue this unfair discrimination unless restrained. In furtherance of the conspiracy, after plaintiffs Avere last laid off, the employer published a pretended roster affecting its switchmen and falsely and unfairly omitted any mention of plaintiffs’ seniority rights. This roster is in the possession of the employer and therefore cannot be further described.

There are also recited at length unavailing efforts of plaintiffs to obtain redress, stating they have exhausted all reasonable efforts at conciliation and that equitable relief is the only adequate remedy; that plaintiffs have been deprived of continuous employment since October 17, 1935-, which they would have had but for this unlawful discrimination and have lost average earnings of $176.76 per month, and have been compelled to seek and subsist on relief.

The prayer is that all switchmen employed at the Chicago terminal since July 19, 1935, may be made parties; that their seniority rights may be determined and proper administration thereof provided; that the court will assume jurisdiction and construe plaintiffs’ rights and agreements; that an account may be taken and a decree rendered for the amounts due to each of plaintiffs and that the writ of injunction issue against the defendant railroad commanding it to recognize the seniority standing of plaintiffs; that pending a final hearing a temporary injunction issue; that the members of the union and its officers, Hogan, Murphy and Michel, individually and as officers, may be enjoined from preventing the restoration of plaintiffs to their proper places on the roster, and that other and further relief may be granted.

In their motions to dismiss, defendants specify as reasons therefor that the alleged seniority rights are not property rights such as will be enforced by a court of equity; that the plaintiffs seek to enforce a contract for personal service which cannot be done because of want of mutuality of remedy in the parties, because plaintiffs have an adequate and complete remedy at law, and because the cause of action is predicated upon an agreement for collective bargaining between the defendant railroad company and the Brotherhood of Bailroad Trainmen, which provides for a method of settling disputes, which plaintiffs did not follow prior to bringing suit.

The Civil Practice Act has modified the practice in courts of equity. Section 33 (3) (Ill. Rev. Stat. 1937, ch. 110, p. 2389 [Jones Ill. Stats. Ann. 104.033]) provides that pleadings shall be liberally construed with a view to substantial justice; section 45 (1) (Ill. Bev. Stat. 1937, p. 2395 [Jones Ill. Stats. Ann. 104.045]) that all objections to pleadings heretofore raised by demurrer shall be raised by motion, and such motions shall point out specifically the defects complained of and shall ask for such relief as the nature of the defects may make appropriate, such as the dismissal of the action or the entry of the judgment where a pleading is substantially insufficient in law, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter may be stricken out, or that necessary parties may be added, or that designated misjoined parties be dismissed, etc.; section 45 (2), that where a pleading or division thereof is objected to by motion to dismiss, or for judgment, or to strike out the pleading because it is substantially insufficient in law, the motion must specify wherein such pleading or division thereof is insufficient; section 42 (1), that if any pleading is insufficient in substance or form the court may order a more particular statement, and if the pleading does not sufficiently define the issues the court may order other pleadings prepared; section 42 (2), that no pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet; section 42 (3), that all defects in pleadings, either in form or substance, not objected to in the trial court shall be deemed to be waived; section 44 (1), that the court in its discretion may try legal and equitable issues together where no jury is employed, and section 44 (2) that any cause of action or counterclaim may be transferred at any time, by order of the court, from law to equity or vice versa.

The motion of the railroad to dismiss states “the plaintiffs have a clear, expeditious and adequate remedy at law. ’ ’ The motion of the other defendants states “the plaintiffs have an adequate remedy at law.” Neither motion specifies such legal defense or defenses available with particularity. The briefs of defendant, however, suggest that plaintiffs had an adequate remedy through suit for damages. It is apparent this would have been only a partial and not a complete remedy. Defendants suggest plaintiffs had a remedy at law through the national railroad adjustment board. The amended complaint alleges in detail demands made by plaintiffs on the defendant railroad under the “Railway Labor Act” of May 20, 1926, as amended June 21, 1934. It also avers that “on or about June 1937 plaintiffs caused to be prepared and presented in their behalf to the National Railroad Adjustment Board” created by that act, a written petition requesting the board to take jurisdiction over their grievances and adjust them, but that they were advised by the board said petition could receive no recognition and would not be docketed or heard. They also aver that they have exhausted all reasonable efforts at conciliation. Defendants suggest that the nature and form of the petition of plaintiffs to the board is not set up nor facts from which the reason or reasons of the board for refusing to receive the petition may be determined. The motions of defendants make no request that this petition should be set up nor a more specific statement made in this respect by plaintiff. The parties seem to agree that the provisions of the Railway Labor Act are not exclusive so as to oust the jurisdiction of a court of chancery. We therefore assume this, to- be true. We hold the averments of the complaint were prima facie sufficient under section 42 (2) of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 166; Jones Ill. Stats. Ann. 104.042], and that the suggestion of defendants cannot prevail.

The points argued to the effect that the contracts upon which plaintiffs rely are without consideration and that the allegations of fraud and conspiracy are vague and indefinite are also matters which cannot be successfully urged since they were not specifically pointed out in defendants’ motions.

The contention that the agreement set up in the amended complaint is based on a contract for collective bargaining between the railroad and the Brotherhood of Railroad Trainmen is directly contrary to the averments of the amended complaint. However, defendants have presented an amended abstract showing the original complaint which was verified and they urge that this original complaint shows that the action is in fact upon such a collective agreement between the Brotherhood and the railroad. They cite Fowler v. Fowler, 204 Ill. 82, to the effect that the original complaint notwithstanding the filing of the amended complaint, remains a part of the record; and Klein v. Chicago Title & Trust Co., 295 Ill. App. 208, to the effect that even under the Civil Practice Act, upon a motion to dismiss a pleading will be construed most strongly against the pleader. So construed, it is urged the amended complaint is in fact based upon a collective agreement made between the Brotherhood and the railroad company and that the alleged seniority rights are not enforceable at the suit of plaintiffs. They cite Hartley v. Brotherhood of Railway and Steamship Clerks, 283 Mich. 201, 277 N. W. 885; McMurray v. Brotherhood of Railroad Trainmen, 50 F. (2d) 968; Shaup v. Grand International Brotherhood of L. E., 223 Ala. 202, 135 So. 327; Burger v. McCarthy, 84 W. Va. 697, 100 S. E. 492; Chambers v. Davis, 128 Miss. 613, 91 So. 346. Section 46 (1) of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, p. 2396 [Jones Ill. Stats. Ann. 104.046]) provides the court may allow amendments which will change the cause of action. The original complaint no doubt remains a part of the record. The motions of defendants are to strike the amended complaint. These motions are equivalent to demurrers and perform the same function. In the Fowler case the Supreme Court said that by demurring to an amended bill defendant “admitted all the statements therein to be true,” and that by demurring defendants also waived the fact that the amendments were not verified. We hold the motions cannot prevail upon the theory that the amended complaint is inconsistent with the original. Nor would we be understood to hold plaintiffs cannot under any circumstance sue on a collective contract made for their benefit by a Brotherhood of which they are members with an employer. That question is not before us.

Defendants further suggest that even if the complaint had alleged that defendants procured the dismissal of the plaintiffs it would have stated no cause of action for the reason that the law is that a union may combine, strike or threaten to strike in order to persuade an employer to hire its members to the exclusion of others. They cite Kemp v. Amalgamated Ass’n, Division No. 241, 255 Ill. 213. The question there was whether a labor organization had a right to call a strike in order to compel an employer to employ union help only. That is not the issue in the case stated by the amended complaint. Whether it may prove to be an effective defense when raised by answer is a question not now before us.

The contention of defendants that equity will not enforce a contract for personal services by injunction or by decree for specific performance to the extent that it will not compel an employer to hire nor an employee to work against his will is, of course, well settled by the decisions of the courts of this and of other States. Rath v. Degener, 352 Ill. 135; Preble v. Architectural Iron Workers’ Union, 260 Ill. App. 435. This doctrine is not, however, without limitations, as was pointed.out by Judge Taft in Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730. However, the point as made here disregards the allegations of the amended complaint, to the effect that the plaintiffs have not been discharged and that the relationships of employer and employee between the railroad and the plaintiffs were not terminated on July 19, 1935. The wrong alleged is not that of the disregard of their legal rights by a wrongful discharge but a conspiracy to disregard seniority contractual obligations of defendant railroad to plaintiffs, as established by their contracts while they remain employees. It is apparent the motions to dismiss disregard these averments of the amended complaint.

There remains the controlling question, whether seniority rights such as are set up in the amended complaint are property rights enforceable in a court of equity. This question has never been decided by the courts of review in this State. The courts of other States are not in accord on this question.

In Gregg v. Starks, 188 Ky. 834, the court held in the affirmative, saying the facts were so extraordinary as to require injunctive relief “if plaintiff is to have any protection whatever in his contractual rights.” In that case a conductor about to be displaced from a run to which he was entitled was granted an injunction although under his contract he was entitled to have another run paying the same wages.

In Chambers v. Davis, 128 Miss. 613, a railroad had contracted with its employees to assign trains in accordance with seniority rights, giving preferment to the employee longest in its service. Certain employees who had been displaced brought their suit in equity and obtained an injunction against the other employees Avho had been put in their places. On appeal the Supreme Court of Mississippi disapproved Gregg v. Starks and said the suit was in substance to have a contract for personal services specifically performed; that it had been urged the general rule against this would not apply because the company had not discharged plaintiffs and did not intend to do so but was willing to accord to them their seniority rights. This, the court said, amounted to a request that the court relieve the railroad of an embarrassing situation by acting as arbitrators which was not the function of a court as the court saw it. The decree was reversed with directions to dismiss the bill. Two judges dissented, saying: “Since under modern conditions employers and employees (especially large employers of labor and their employees) are dealing with each other collectively as to many of the important terms of employment, why should not the courts deal with them in the -same manner? Sooner or later it will be done. Gregg v. Stark, 188 Ky. 834, 224 S. W. 459, is directly in point, and I know of no authority to the contrary; and, although that was not a decision of the court of appeals of Kentucky, as stated in the majority opinion, it was concurred in by a majority of the members of the court, and is entitled to such weight as its reasoning carries. ’ ’

In the later case of Louisville & N. R. Co. v. Bryant, 263 Ky. 578, 92 S. W. (2d) 749, the highest court of Kentucky approved the majority opinion of the Supreme Court of Mississippi, saying: “We have not overlooked the case of Gregg v. Starks, 188 Ky. 834, .224 S. W. 459, cited by, and which supports the contention of, the appellees, but that case is not in accord with the rule governing controversies of the character of the one here in question, and, moreover, was not decided by a court of last resort, but by one of the judg’es of such a court on a motion for a temporary injunction.”

In other jurisdictions views seem to' have been adopted in conformity with the prediction made by the dissenters in the Supreme Court of Mississippi. In Griffin v. Chicago Union Station, 13 Fed. Supp. 722, it appeared that Griffin held seniority rights as a switch tender but was transferred to other work, and for 10 years his name did not appear on the seniority list. At the end of the 10-year period his position was abolished and he was restored to the seniority list as a switch tender and put to work at once, displacing others. The displaced switch tenders complained to the National Railroad Adjustment Board, First Division, which noticed the employer to appear and upon the hearing entered an order depriving plaintiff of his seniority rights and restoring the displaced switch-men. Plaintiff sued the station company, the National Railroad Adjustment Board and other switch tenders affected by the order. Plaintiff had not been notified of the hearing. The district court held that the seniority rights of plaintiff which he held prior to the decision of the board were property within the meaning of the fifth amendment to the federal constitution, quoting the statement of the Supreme Court of the United States in Truax v. Raich, 239 U. S. 33, 6 L. Ed. 131, L. R. A. 1916D 545; Annotated Cases 1917B 283. The enforcement of the order was perpetually enjoined. The board took the case to the Circuit Court of Appeals for the 7th District, where the order was affirmed. Nord v. Griffin, 86 F. (2d) 481, the court holding that in depriving the plaintiff of his seniority rights without notice the board acted in violation of the fifth amendment to the constitution of the United States and deprived plaintiff of his property without due process of law.

In Rentschler v. Missouri Pac. R. Co., 126 Neb. 493, 253 N. W. 694, plaintiff, member of a Brotherhood, sued at law to recover wages lost through being* laid off in disregard of his seniority rights. He recovered judgment. The defense was interposed that he resorted to the courts before exhausting arbitration as provided by the contract for the adjustment of his grievances. The contract was made between the Brotherhood (of which plaintiff was a member) and the railroad. It was claimed this contract did not vest in plaintiff a right to sue on it. The Supreme Court of Nebraska reviewed the authorities and affirmed the judgment. The case is annotated in 95 A. L. E. 10, and other cases construing contracts of this nature are there collected and analyzed. While the particular case was an action at law, these collected cases show that contracts of this nature have been construed by many courts as vesting in the employee property rights which will be protected at law and also in equity in conformity with equitable principles. Where the contract is entered into by the union in behalf of the employee and the controversy concerns some internal rule of the union (as the cases cited by defendants indicate) the action usually should be brought in the name of the union alone. As we have pointed out, the amended pleading eliminates questions of this character. We hold that seniority rights such as are set up in the amended complaint are property rights, and that the complaint states facts sufficient to give jurisdiction to a court of equity and to require an answer. The decree will be reversed and the cause remanded with directions for a rule on defendants to answer.

Reversed and remanded with directions.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Estate of Joseph J. Reiter, Deceased. Mary Nels, Executrix of the Estate of Catherine Helfgen, Deceased, Appellee, v. Marie A. Reiter and Agnes A. Reiter, Administratrices of the Estate of Joseph J. Reiter, Deceased, Appellants.
    Gen. No. 40,292.

      Opinion filed January 16, 1939.
    Rehearing denied January 30, 1939.
    Joseph A. Bicker, of Chicago, for appellants.
    Joseph J. Simon, of Chicago, for appellee; Edward McTiernan, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

By petition filed in the probate court, Mary Neis, executrix of the Helfgen estate, prayed that the administratrices of the estate of Joseph J. Eeiter, deceased, should be directed to pay to her forthwith her claim in the amount of $3,090, being the proceeds of a mortgage collected by the deceased a few days prior to his death. The administratrices answered admitting that the collection had been made but denying that the claimant was entitled to preference over other creditors. The probate court allowed the claim and directed that it should be paid forthwith.

Aii appeal was taken to the circuit court where the matter was heard on a stipulation of facts. The circuit court entered an order that the sum of $1,682.23 of the amount claimed being money belonging to the estate of Catherine Helfgen and found to be in the possession of Joseph J. Reiter, deceased, at the date of his death on August 7, 1936, and on deposit in the Live Stock National Bank of Chicago, and which came into the possession of the administratrices after his death, should be paid to the Helfg*en estate forthwith; that the sum of $1,324.77, being the balance of said claim less an off-set of $83, represented by the note of Mary Neis, as executrix, given for money advanced for the funeral expenses of her deceased, should be allowed as a preferred claim of the fifth class as provided in paragraph 71 of chapter 3 of the Statutes. From this order the administratrices appealed to this court.

The material facts as stipulated upon the hearing in the circuit court were as follows: Mary Neis, the claimant, is the acting executrix of the estate of Catherine Helfgen, who died testate at Chicago, April 8, 1936. Joseph J. Reiter, against whose estate the claim is made, departed this life on August 7, 1936. For more than 25 years prior to his death he conducted a real estate, mortgage and insurance business at 1543 West 51st street in Chicago, Illinois.

Included in the assets of the estate of Catherine Helfgen was a principal promissory note executed by John J. Wilkins and Annie Wilkins for the sum of $3,000. This note was dated August 2, 1921, and was secured by a trust deed to the Chicago Title & Trust Company on real estate at 5759 South Sacramento avenue, Chicago, Illinois. The note by its terms was due 5 years after date, became payable August 2,1926, at which time the entire balance of $3,000 was extended for 5 years until August 2,1931, and on August 2,1931, was again extended for 5 years until August 2, 1936, through an extension agreement made by the Marquette State Bank, as agent for the holder of the note, and George Zagorski and Elizabeth Zagorski, his wife, as owners of the premises, interest for the extension period being evidenced by 10 interest notes of $90 each.

On April 10, 1936, the claimant executrix deposited the principal note and the last unpaid interest note of George and Elizabeth Zagorski, the trust deed, extension agreement and mortgage policy, with Joseph J. Reiter for collection. She received this receipt:

“2265 Chicago, Ill., April 10, 1936.
Received of Mary Neis, Executrix of Estate of Catherine Helfgen, deceased, for collection, the WilkinsZagorski first mortgage loan papers, in the amount of $3,000 due August 2, 1936.
“Said loan is secured by trust deed as document No. 7225561 on real estate known as 5759 S. Sacramento Ave., Chicago, Cook County, 111.
$3000.00 Joseph J. Reiter, Klein.”

At the same time Joseph J. Reiter advanced to the claimant $83 to be used for the purchase of a cemetery lot for the claimant’s estate and took back a collateral receipt signed by claimant of the same date, which recites that 6 weeks after date for value received the executrix promises to pay to the order of Joseph J. Reiter, the sum of $83, at his office in Chicago, Illinois, with interest at 6 per cent per annum. The receipt also recites that Mary Neis, executrix, has deposited as collateral security for this note the first mortgage above described, and that the executrix (signer of the note), gives to Joseph J. Reiter the authority to sell the same or any part of it on the maturity of the note, etc., being a collateral clause with the usual provisions.

On August 3, 1936, Joseph J. Reiter collected the amount due on this mortgage and deposited it in his general bank account with the Live Stock National Bank of Chicago. On August 3, 1936, claimant talked with the business manager of the intestate’s office, and was informed by him that Joseph J. Reiter was not ready to pay out the money as yet as the check would first have to clear the bank. On August 7, 1936, the time of deceased’s death, the $3,090 had not been paid to the claimant and her note for $83 had not been paid.

On August 7,1936, Joseph J. Reiter had a cash balance in the Live Stock National Bank of Chicago of $2,017.06. An itemized statement of his account for the period from August 1 to August 7, 1936, is as follows:

Date Checks in Detail Date Deposits
Aug. 1,36 1,371.38 Balance brought fonvcl Jul. 31,36 10,787.76
Aug. 3, 36 651.51
Aug. 3,36 4,000.00
Aug. 3,36 3,000.00 Aug. 3,36 3,484.60
Aug. 4,36 117.25 2,500.00
Aug. 5,36 500.00 Aug. 5,36 334.83
Aug. 7,36 350.00 100.00
Aug. 10, 36 2,017.06

The deposit item of $3,484.60 on August 3, 1936, included the $3,090 collected on the mortgage. The inventory filed and approved in the estate of Joseph J. Reiter on November 9, 1936, shows among other assets cash on hand of $99,062.07, which includes the sum of $97,000 life insurance, which was payable to his estate. The estate of Joseph J. Reiter is insolvent and the creditors whose claims have been allowed as of the sixth class aggregating in excess of $200,000, will receive not to exceed 50 per cent of the amount allowed. The questions for decision are whether the circuit court erred in directing a forthwith payment to the claimant in the sum of $1,682.23, and whether it erred in allowing the further sum of $1,324.77 as a preferred claim of the fifth class.

Section 70 of the Administration Act (Ill. Rev. Stat. 1937, ch. 3, p. 78 [Jones Ill. Stats. Ann. 110.071]) provides :

“All demands against the estate of any testator or intestate shall be divided into classes in manner following, to-wit:

“First. Funeral expenses and necessary cost of administration.

‘ ‘ Second. The widow’s award, if there be a widow; or children, if there are children and no widow.

“Third. Expenses attending last illness, including physician’s bill, and demands due common laborers or household servants of deceased for labor.

“Fourth. Debts due the common school fund or township.

“Fifth. Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for.

“Sixth. All other debts and demands of whatever kind without regard to quality or dignity, which shall be exhibited to the court within one year from granting of letters as aforesaid. . . .”

The briefs by citation and argument present the questions arising on the record as requiring an interpretation of sections 5 and 6. In so far as the item for $1,682.23 is concerned, it is apparent the circuit court did not proceed under either section 5 or 6 of the statute. The order is not for the payment of this item in course of administration but a direction for the payment thereof “forthwith.” It is apparent, therefore, that the obligation is recognized as one to be satisfied irrespective of funeral expenses, costs of administration, widow’s or children’s award, expenses of last illness and debts due. the common school fund or township. It is apparent the order could have been made only on the theory that this item was found in the hands of the administratrices of Reiter’s estate but that it did not belong to their estate but on the contrary was the property of the estate of Catherine Helfgen. Manifestly, the order would not be justifiable if (as respondents contend) the relationship between the claimant and Joseph J. Reiter by means of the transaction set up in the stipulation was simply that of creditor and debtor nor if it constituted a trust within the meaning of section 5 of the Administration Act. Under the first hypothesis the claim would be allowed under classification No. 6 and under the second as a preferred claim, but in either case it would be paid not “forthwith” but in due course of administration. The question requires careful consideration of the facts to the end that the relationship which existed between Joseph J. Reiter at the time of his death and the claimant may be determined. The receipt shows that when the mortgage papers were delivered to Joseph J. Reiter, he was constituted an agent to collect and remit the proceeds to the claimant. It has been well said that the germ of agency is hard to distinguish from the germ of trust. Bogert, Trusts and Trustees, Vol. I, sec. 15, p. 45.

The property in the mortgage, at the time it was delivered to Reiter, was in the estate of which the claimant was the executrix. She did not convey it to Reiter and she had no power to convey it to him. The claimant stood in a fiduciary relationship to the estate of which she was the executrix, of which relationship the stipulation shows Reiter had knowledge. Joseph J. Reiter by that transaction became no more than the agent of claimant. She was his principal. He was given possession of the securities but no title was- conveyed to him. He was authorized to collect for his principal. He collected it. The money (when collected) did not belong to him. It was the property of the estate of his principal. His sole duty was to turn these proceeds over to her. He did not do this, but on the contrary put the money in his own bank account. He used a part of it for his own purposes. This was unauthorized and amounted to a conversion. The estate of the claimant could not as between claimant and Joseph J. Reiter, or his estate, be deprived thus of her property without her consent. She could follow the property of which she was a fiduciary so long as she could identify it. As our Supreme Court said in Svanoe v. Jurgens, 144 Ill. 507, at 515, 33 N. E. 955: “An agent, who receives the money of his principal, holds the same in trust, and must be held strictly to the liability of a trustee as between himself and the man for whom he acts.”

The claimant could elect to hold him to that liability or at her election she could follow and take the property which belonged to her estate so long as she could identify it. The facts of Reiter’s death would not change the right of property vested in the estate of which she was the executrix. A mere ag’ent ordinarily does not take title to the property of his principal. He might, of course, by special contract take title, but in the absence of such contract he does not, as Prof. Bogert points out in the above citation. When the form of property was changed from that of a mortgage security to cash, the cash in the hands of Reiter became at once the property of the estate of Catherine Helfgen. Silsbury v. McCoon, 3 N. Y. 379, 53 Am. Dec. 307; Bogert, Trusts and Trustees, Vol. IV, ch. 44, sec. 921, p. 2653. This is the theory upon which the decision in People ex rel. Nelson v. Bates, 351 Ill. 439, 442, 443, as well as People ex rel. Barrett v. Cairo-Alexander County Bank, 282 Ill. App. 343, 353, are based, as appears from the later decisions of People ex rel. Nelson v. People’s State Bank of Maywood, 354 Ill. 519; People ex rel. Nelson v. Stony Island State Sav. Bank, 358 Ill. 118; Baiar v. O’Connell, 365 Ill. 208. The opinion in the last named case points ont that the question had arisen and been considered in connection with two kinds of bank deposits, special and general. These later cases follow the law as announced in People ex rel. Russell v. Farmer’s State & Sav. Bank, 338 Ill. 134. The opinion cites Blakey v. Brinson, 286 U. S. 254, 76 L. Ed. 1089, 52 Sup. Ct. 516, 82 A. L. R. 1288; Norling & Bloom Co. v. Exchange Trust Co., 288 Mass. 444, 193 N. E. 1; Fulton v. Escanaba Paper Co.; Fulton v. University of Dayton, 129 Ohio St. 90, 193 N. E. 758, as following the same rule, which it states to be: “ That when a preference of this particular sort is claimed it must be founded upon a claim of title to the funds and not based upon the relationship of debtor and creditor. ’ ’

The above cases did not involve claims against estates in the probate court. However, we see no reason why the rule of law as there applied should not also be applied in the case of an estate where its executor or administrator has in his possession property which can be identified and the title to which is found to be in another. In Adams Express Co. v. Oglesby, 215 Ill. App. 94, 97, this court considered questions with reference to claims of what was then known as the sixth but now as the fifth class under the Administration Act. In that case the deceased, who conducted a drug store, had been appointed by the express company its agent to sell money orders for which he was to receive compensation and to remit the proceeds to his principal. After his death it was found that he had sold and failed to remit to the express company money orders aggregating $2,510.59, and that hi,s estate was insolvent. The money unlawfully retained had been commingled with his own funds. The opinion of this court pointed out that if the claim were allowed only as of the then sixth class, the claimant might receive nothing in case the entire estate was required to pay claims of other classes. In the opinion in that case this court said: “There is no reason why the Probate Court may not order a fund kept separate and distinct turned over to the claimant absolutely, for in such circumstances the fund was not a part of the estate at all, but the property of the claimant and should be delivered to him upon order of the court and not allowed as of any class. If it should be allowed only as of the sixth class and the estate insolvent,' the claimant might receive nothing in case all the estate was required to pay claims of the first, second, third, fourth and fifth classes.”

In re Estate of Melone, 247 Ill. App. 226, this court had before it a case in which money in the hands of the deceased was converted and embezzled by him, and concerning which the court said:

“ ‘Money of the principal in the hands of the agent is still the money of the principal, and the agent has no right to use it or pay it out for his own private purposes. "While he has this money, he is not, technically, the creditor of his principal, but simply his trustee. (Mechem on Agency, sec. 780.) It is, in such case, therefore, always the legal presumption that the money in the hands of the agent is the identical money that he received, and he will not be heard to allege his embezzlement or breach of trust to escape a liability arising from that presumption. Mechem on Agency, sec. 785; Story on Agency, secs. 229, 230; Trustees v. McCormick, 41 Ill. 323; Cotton v. Holliday, 59 id. 176.’ ”

New York courts reached the same conclusion in In re Gaul’s Estate, 160 N. Y. Misc. 123, 289 N. Y. S. 644. For the reasons indicated we think irrespective of the sections of the administration statute providing for the classification of claims against the estate, the circuit court was justified under the facts here in directing that the item of $1,682.23 be turned over to the executrix of the estate of Catherine Helfgen forthwith. The probate court had jurisdiction under sections 81 and 82 of the Administration Act as amended. Ill. Rev. Stat. 1937, ch. 3, pp. 80 and 81 [Jones Ill. Stats. Ann. 110.082, 110.083]; Johnson v. Nelson, 341 Ill. 119.

As to the second item, the problem before the court was different. This portion of the fund collected from the mortgage deposited with Reiter in his lifetime had been dissipated so that it was impossible to trace or identify it. It could not, therefore, be turned over in specie and the question for decision is as to whether under paragraph 5 of section 70 of the Administration" Act this could be said to be money received by the deceased “in trust for any purpose.” It is not disputed that upon the conversion of this money by the intestate the law would impress a trust upon it for the benefit of the owner, and the language of paragraph 5 would at first blush, seem broad enough to permit a preference by reason of that trust. The courts have, however, given a much narrower construction to this section. As the Supreme Court said in Wilson v. Kirby, 88 Ill. 566: “It is certain that the legislature, by the phrase ‘in trust for any purpose, ’ intended to extend the class of preferred claims, but how far, admits of question.”

In Merchants’ Loan & Trust Co. v. Hulette, 187 Ill. App. 161 (Abst.), this court said:

“It has been repeatedly held by the courts of this state that the word ‘trust’ as used in the 6th clause (now 5th clause) applies only to technical or express trusts, and that it has no application to trusts which the law implies as growing out of contracts. Felsenthal v. Kline, 214 Ill. 121; Svanoe v. Jurgens, 144 Ill. 507; Ford v. First National Bank, 100 Ill. App. 70; Shipherd v. Furness, 153 Ill. 590; Wilson v. Kirby, 88 Ill. 536; Jarrett v. Johnson, 216 Ill. 212. "We are clearly of the opinion that the facts in this case do not establish an express or technical trust. The trial court therefore properly placed the claim in the seventh class.” (now sixth class.)

In Felsenthal v. Kline, 214 Ill. 121, the Supreme Court said: “We have uniformly held that the word ‘trust,’ as used in the sixth (now fifth) clause, is not to be taken in its general sense as embracing every case in which a confidence has been reposed, but must be-understood in the restrictive sense, and applies only to technical trusts, having no application to trusts which the law implies as growing out of contracts. (Wilson v. Kirby, 88 Ill. 566; Svanoe v. Jurgens, 144 id. 507; Shipherd v. Furness, 153 id. 590.) There is no construction of the facts in this case which can bring it within the definition of a trust as defined by these decisions, and the courts below have each properly placed it in the seventh (now sixth) class.”

The cases might be multiplied but it will be sufficient to say that the courts have uniformly construed this phrase of paragraph 5 of the Administration Act as being limited to express as distinguished from constructive trusts created by law. It follows that in so far as the order directed the allowance of $1,324.77 as a preferred claim of the fifth class the court erred, and the claim as to said amount should have been classified as of the sixth class. For the reasons indicated the order of the circuit court in so far as it directs the payment forthwith of the sum of $1,682.23 to the executrix of the estate of Catherine Ilelfgen by the administratrices of the estate of Joseph J. Reiter, deceased, will be affirmed, but that portion of the judgment directing the payment of the sum of $1,324.77 to the executrix of the estate of Catherine Helfgen, deceased, as a claim of the fifth class will be reversed and the cause remanded with directions to allow the same as a claim of the sixth class.

Affirmed in part; reversed in part; and remanded with directions.

McSurely, P. J., and 0 ’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Doris Denny, Appellant, v. Goldblatt Brothers, Inc., Appellee.
    Gen. No. 40,267.

      Opinion filed January 16, 1939.
    C. J. Morgan, of Chicago, for appellant.
    Philip A. Weinstein, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for personal injuries claimed to have been sustained by her in slipping and falling on some fresh vomitus that some unknown person ejected, or milk that was spilled, in the revolving- door which was located inside defendant’s large retail store on State, Jackson and Van Burén streets, CMcago. She claimed defendant was negligent in failing to remove the vomitus or milk. At the close of all the evidence defendant moved for a directed verdict which the court reserved. Afterward the jury rendered their verdict in plaintiff’s favor for $2,000; judgment was entered on the verdict and within 10 days thereafter defendant filed its motions for a new trial and for a judgment notwithstanding the verdict. Afterward the court sustained the latter motion, entered judgment against plaintiff for costs and she prosecutes this appeal.

The record discloses that on March 12, 1937, which was shortly after defendant had purchased the large retail store located on State street as above stated, defendant had what is designated as its formal opening of the store. The front of the store was gaily decorated, there was a parade, and many guests were entertained, including members of various civic organizations. A great many people came to the store and counsel for plaintiff says it was perhaps the biggest day in the history of the store.

After plaintiff had finished her day’s work at Field’s at 5:30, she met her husband, they took a walk and arrived at defendant’s store about 6 o’clock, entering the store on the Jackson street side. After making a purchase on the first floor they walked through the store which was crowded and made another purchase. They then walked down the stairs into the basement where another purchase was made; they started to leave the store about 6:30, walked up the steps to the mezzanine floor which was about half way between the basement and first floors and started through a revolving door which led into a restaurant on the mezzanine floor. As plaintiff was passing through the revolving door she slipped on some vomitus or milk, fell and was injured. She did not look at the floor until after she slipped and fell, when she discovered the vomitus. Some men came to her assistance and she was taken to the medical bureau in the store and examined by a doctor. A nurse was also in attendance. The doctor found an “area of redness and tenderness about the size of a silver dollar piece located over the posterior or back portion of the left hip joint”; she stayed there about 5 minutes and then left with her husband. Afterward she was treated by her family physician who testified that he found a contusion of the “upper outer aspect of the left hip — a fracture separation of the upper rim of the left hip socket — left sacro-iliac sprain and traumatic sciatica,” that the “disability is the injury to the lower end of the spine ’ ’; that in his opinion plaintiff has some permanent disability. His charge was $32.

Edward J. Duffy, called by plaintiff, testified that he was a millwright and carpenter by trade; that he visited defendant’s store on the opening day and went to the various floors; that he ate in the cafeteria located on the mezzanine floor near the north end of the store; that from 3 to 5 minutes before he saw plaintiff slip and fall he went through the same revolving door and that he slipped and almost fell “on some stuff that looked like an emulsion — it looked like a bottle of cream or milk” that was spilled there. That after passing-through the door he was cleaning his clothes of the emulsion or milk and while doing so saw plaintiff slip and fall coming through the door.

Plaintiff contends that since judgment was entered on the verdict when it was returned by the jury, the court was without authority to sustain defendant’s motion which was not filed until a few days afterward — that such motion can only properly be made before the judgment is entered. In support of this, counsel quote par. (3)a, sec. 68 of the Civil Practice Act (ch. 110, [Il. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.068]), while defendant’s counsel quote par. 1 of the same section.

We think the court by virtue of par. 1 was authorized to pass on defendant’s motion for a judgment notwithstanding the verdict although a judgment had theretofore been entered on the verdict. That paragraph provides that where a general verdict is returned, the court shall order the same entered of record “and if either party may wish to move for a new trial or in arrest of judgment, or for a judgment notwithstanding the verdict, he shall, before final judgment be entered, or within ten days thereafter, or within such time as the court may allow on motion made within such ten days, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion, and final judgment and execution thereon shall thereupon be stayed until such motion can be heard by the court. The time for appeal from such judgment shall not begin to run until the court shall rule upon the motion. ’ ’

Paragraph 3 of sec. 68 provides that in all civil actions if either party shall, at the close of the testimony and before the case is submitted to the jury, request the court for a directed verdict, the court may reserve his decision and submit the case to the jury under proper instructions. That after the case is thus submitted to the jury “or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request. ’ ’ But in all cases shall receive and record the verdict of the jury as rendered. If the court shall then decide as a matter of law that the party requesting the verdict was entitled thereto, the court shall enter its decision on the record notwithstanding the verdict. We think under the provisions of the two paragraphs quoted from, the court is authorized to enter judgment notwithstanding the verdict whether made before or after judgment has been entered on the verdict provided the requirements of the section are complied with. The practice followed in the instant case was the same as that followed in Hill v. Richardson, 281 Ill. App. 75.

Counsel for plaintiff further contends that even if the trial court had jurisdiction to sustain defendant’s motion for a judgment notwithstanding the verdict, the action of the court in allowing* the motion was unwarranted because the questions whether plaintiff was in the exercise of due care for her own safety and whether defendant was guilty of negligence which proximately contributed to the injuries complained of were properly questions for the jury.

In discussing this question, counsel for defendant says “There is no evidence tending* to show that the defendant had any actual or constructive notice of the presence of the vomitus’’; that “Ordinarily questions of negligence and notice are exclusively for the jury, yet when there is no competent evidence in the case that fairly tends to prove the charges laid in the complaint or when the evidence is considered with all reasonable inference drawn from it in its aspects most favorable to the plaintiff against whom the motion is directed and there is a total failure to prove one or more necessary elements of the case, then the questions of negligence and notice are no longer for the jury.” In support of this proposition it is argued that the undisputed evidence shows that some person had vomited inside the space of the revolving door and that defendant had nothing* to do with the creation of the condition that caused the accident; that the door was properly constructed and the entry-way well lighted; that the only evidence as to the length of time the entry was in the condition complained of is that of the witness Duffy who testified that he walked through the revolving door from 3 to 5 minutes before • plaintiff slipped and fell; that he saw “some stuff that looked like an emulsion — it looked like a bottle of cream or milk” that had been spilled and that there is no evideuce that defendant had knowledge of the existence of the vomitus or milk on the floor.

Edward Zelenka, called by defendant, testified that he was the porter assigned to that part of the store where the accident occurred; that he had worked at the store for more than 3 years; that his duties were to pick up papers, wipe up and look after the hallways and stairs to see that everything was cleaned up; that he went to work at 8:30 in the morning and worked until sometime after the accident; that “During the day I went through about every hour, it was my business to go through there. . . . Around the hours of six and seven o’clock I was not through this door. I was more to the south side of the basement.”

Plaintiff testified that the vomitus in the doorway “had all been swept in the corner but it had not been swept clean,” and her husband gave testimony to the same effect which would tend to show that some employee of defendant had attempted to clean the doorway but had not done a good job.

Under the law defendant was required to use reasonable care to see that its premises were reasonably safe for its patrons. Whether the vomitus or milk was in the doorway such a period of time that defendant, in the exercise of ordinary care would have discovered and removed it, (having in mind the great throngs that were at the store on the day in question) we think was a question for the jury. We think it cannot be said that all reasonable minds would reach the conclusion that defendant had exercised ordinary care under the circumstances. Riech v. Great A. & P. Co., 268 Ill. App. 613 (not reported in full); Frost v. McCarthy, 200 Mass 445; Reichman v. Robertson’s, Inc., 264 Ill. App. 537; The Washington Market Co. v. Claggett, 19 App. D. C. 12; Williamson v. Hardy, 190 Pac. 646. On this phase of the case defendant further contends that “Plaintiff’s attempt to use one presumption as the basis of another presumption falls within the prohibition of a well established doctrine, ’ ’ and in support of this says that where the evidence is reasonably consistent with two hypotheses, one of which imposes a liability and the other does not, the plaintiff has failed to prove her case; that there was no evidence from which the jury could reasonably infer that defendant knew of the presence of the vomitus or milk on the premises and failed to remove it; that plaintiff must prove that the injuries she complains of were in fact, or within reasonable probability caused by defendant’s negligence. The contention of defendant that one presumption cannot be based upon another is not the law, although there are some cases to the contrary. Sec. 41, Wigmore on Evidence, 2nd ed.; Burns v. Prudential Ins. Co. of America, 283 Ill. App. 442; Sturm v. Emp. Liability Assurance Corp., 212 Ill. App. 354; Paoli v. Loyal Protective Ins. Co., 289 Ill. App. 87; Welsch v. Frusch L. & P. Co., 197 Iowa, 1012.

In the Burns case we quoted from sec. 41 of Wig-more, the following: “It was once suggested that ‘an inference upon an inference ’ will not be permitted, i. e., that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by a few Courts, and sometimes actually enforced. There is no such rule, nor can be. If there were, hardly a single trial could be adequately prosecuted.” We there quoted further from the section but we do not repeat it here. We there also quoted from the Sturm case, “If any one or more of those inferences is doubtful, the ultimate is doubtful. Of course, an inference from an inference, and then a third and fourth may, under certain circumstances, be admissible (Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96) . . . but the more remote the inference the more enfeebled its probative force.”

We are.also unable to agree with the contention made by defendant that where the evidence is reasonably consistent with two hypotheses one of which imposes liability and the other does not, that plaintiff has failed to prove her case. Even where the facts are admitted but where a difference of opinion as to the inference that may legitimately be drawn from them exists, the question of negligence ought to be submitted to the jury. It was for the jury to draw the inference. Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Moore v. Rosemond, 238 N. Y. 356, opinion by Judge Pound; Kavale v. Morton Salt Co., 242 Ill. App. 205; Norris v. Illinois C. R. Co., 88 Ill. App. 614; Richmond & D. R. R. Co. v. Powers, 149 U. S. 43; Gunning v. Cooley, 281 U. S. 90. In a negligence case demonstration is not required. Union Pacific R. R. Co. v. Huxall, 245 U. S. 535.

Defendant further contends that its motion for a new trial which it filed, at the time it filed its motion for a judgment notwithstanding the verdict should have been allowed, (1) for the admission of incompetent evidence that was prejudicial to the defendant, (2) that the verdict was the result of prejudice, passion and sympathy in utter disregard of the evidence, or against the manifest weight of the evidence, and (3) that the amount awarded is grossly excessive. Counsel for plaintiff in his reply brief contends that the question is not open for review because the trial court did not pass upon defendant’s motion for a new trial and therefore it has been waived. We think this contention cannot be sustained. Sub-section c, of sec. 68, of' the Civil Practice Act, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.068], provides: “c. If the party in whose favor the verdict of the jury was rendered shall assign error in tlie Appellate or Supreme Court upon the order of the trial court entering judgment notwithstanding the verdict, and the Appellate or Supreme Court shall be of opinion that the trial court committed error in ordering or entering judgment notwithstanding the verdict, such court shall reverse such order and judgment and shall order or enter judgment in accordance with the verdict of the jury, unless it shall appear that there was error in the case that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court, in which case a new trial shall be ordered. ’ ’ In Hill v. Richardson, 281 Ill. App. 75, where the trial court entered judgment notwithstanding the verdict but failed to pass upon defendant’s motion for a new trial, it was held that the motion for a new trial should be passed upon by this court. The opinion was by Mr. Justice Wilson, now of our Supreme Court. There may be cases where the reviewing court should remand the case to the trial court to pass on the motion for a new trial where judgment, notwithstanding the verdict, has been erroneously entered, but we think we can properly pass upon the motion under the facts disclosed by the record in the instant case.

(1) The incompetent evidence claimed to have been erroneously admitted by counsel for defendant was that plaintiff and her husband were permitted to testify that the vomitus in the doorway had been ‘ ‘ swept, ’ ’ which was a mere conclusion. We think the jury would understand without difficulty that the testimony was that the vomitus appeared to have been swept.

(2) In support of defendant’s contention that the verdict was the result of passion, prejudice and sympathy, etc., it is said that plaintiff, while testifying, sobbed and shed tears bending every effort to sway the jury. The record shows that plaintiff did this while she was testifying but in view of the fact that the case was simple and easily understood we think defendant was not entitled to a new trial on this g*round. It is also contended in this connection that plaintiff’s husband testified that the vomitus swept from the door “was the size of a pumpkin” and that this testimony was incredible and unworthy of belief. We agree with this latter contention but are of opinion the jury gave no credence to such incredible testimony.

(3) The contention that the verdict was grossly excessive we think cannot be sustained. The argument in support of this contention in substance is that plaintiff was suffering from ailments prior to the time of the accident and that after the accident these were the cause of some of her troubles. We do not stop to analyze the evidence on this question but are of opinion, (in view of the testimony of plaintiff and the doctor, taken in connection with the evidence offered by defendant, indicating that she had sustained but trivial injuries as a result of the fall), that the verdict is not so excessive as to warrant interference on our part.

For the reasons stated, the judgment of the circuit court of Cook county is reversed, and since there would be no good purpose served to remand the cause for a new trial, judgment will be entered in this court in accordance with the verdict rendered. Hill v. Richardson, 281 Ill. App. 75.

Judgment reversed and judgment entered in this court for plaintiff.

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


text:
    Metropolitan Life Insurance Company, Appellee, v. Irene Shattas et al., Appellants.
    Gen. No. 40,318.
    Hatchett, J., dissenting.
    Opinion filed January 16, 1939.
    Sinon A. Murray and S. D. Tannenbaum, both of Chicago, for appellants; Louis A. Rosenthal, of Chicago, of counsel.

      Hoyne, O’Connor & Rubinkam, of Chicago, for appellee; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 20, 1934, Kazimeraz Shattas was solicited by an agent of plaintiff, Metropolitan Life Insurance Company, and on that day signed a written application for insurance. On the same day Dr. Max E. Fisch for the company called on plaintiff at his home to examine him physically to ascertain whether he was a fit subject for insurance. The doctor testified he examined Shattas, asked him the 26 printed questions in the application and wrote down the answers given by Shattas. This document was signed by Shattas and on June 1, 1934, the insurance company issued its policy of insurance to Shattas for $1,000, Irene Shattas, the insured’s minor daughter being named as beneficiary. It is stated in the policy that “This policy is issued in consideration of the Application therefor, copy of which Application is attached hereto and made part hereof,” etc. The premium was paid. Shattas died October 10, 1934. The insurance company claimed Shattas had obtained the policy through fraud in giving false answers to questions put to him by the examining physician, particularly that he answered a question that he had never had a disease of the liver, and another question, that he had not been attended by a physician during the past five years; that both of these answers were false because shortly before Shattas signed his application for insurance he had been treated a number of times by Dr. Zalatoris, his family physician, for cirrhosis of the liver, an incurable disease, and that his health at that time was very bad.

The policy issued is designated on the face of it, “Special Class,” and counsel for the insurance company say that such policy was issued because Shattas was dealing in alcoholic liquors and was required to pay a high rate of premium.

The policy was incontestable after 2 years and on May 5, 1936, the insurance company filed its complaint in the instant case in chancery claiming the policy was fraudulently obtained, as above stated, and praying that it be declared null and void, and the beneficiary enjoined from prosecuting any suit or action on the policy. Defendants answered denying any allegations of fraud made against Shattas in obtaining the policy. The case was referred to a master in chancery who heard the evidence offered by plaintiff, defendants offered none; he made up his report and recommended a decree in accordance with the prayer of the complaint. Objections to the report were overruled and afterward a decree was entered in accordance with the recommendation of the master, and the defendants prosecute this appeal.

We have examined the evidence in this case and are clearly of opinion it shows that for some time and up until a short time before Shattas signed his application his health was bad; that he consulted his physician and that he knew his health was bad and that he knowingly made false answers to the questions put to him in his application. In these circumstances the policy cannot be enforced. Janelunas v. Chicago Frat. Life Assn., 286 Ill. App. 219. The master found, and his finding was approved by the chancellor, that Shattas had knowingly made false answers to questions put to him, as to the state of his health. In such case, we are not warranted under the law in disturbing such finding unless we are of opinion that it was against the manifest weight of the evidence. Stasch v. Stasch, 355 Ill. 581; Pasedach v. Auw, 364 Ill. 491; we think the evidence clearly sustains the decree.

All of the briefs were filed before the case was taken under consideration and the first point made in plaintiff’s brief is that the appeal should be dismissed “because the record was filed after the time prescribed by the rules of this court.” Counsel for both parties agree that the notice of appeal was filed May 4, 1938; that the record was filed in this court July 5, 1938, which is 62 days after the notice of appeal was filed. Counsel also agree that Eule 1, of this court and Eule 36 of the Supreme Court required the record to be filed in this court not more than 60 days after the notice of appeal has been filed. But counsel for defendant say that July 3, the 60th day, was Sunday and that the next day, July 4, was a holiday and therefore it was impossible to file the record in the clerk’s office of this court on either of these 2 days; that in computing the number of days within which the record must be filed, the rule is, to exclude the first day and include the last day, and that if the last day falls on a Sunday, that day is also to be excluded. Counsel also point out that the Negotiable Instrument Act, (sec. 17, ch. 98, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 89.018]) provides that the 4th of July is a legal holiday; and that excluding the 60th day, which was Sunday, and the following day which was a holiday, the record was filed in apt time.

We are unable to agree with counsel’s contention. It has been held that when the last day for filing’ a record is a holiday, such day will not be excluded from computation of time unless it falls on Sunday. Richter v. Chicago & Erie R. R. Co., 273 Ill. 625; Connell v. North Town Motor Co., 297 Ill. App. 247. It was also held in those cases that sec. 17, of the Negotiable Instrument Act, which designated certain days, including the 4th of July as legal holidays for certain purposes in regard to negotiable instruments, did not make such day a legal holiday for the performance of judicial functions. The record not having been filed in this court within the 60 days from the filing of the notice of appeal the filing thereafter was too late and the appeal is dismissed.

Appeal dismissed.

McSurely, P. J., concurs.

Hatchett, J. dissenting.

I concur in what is said as to the lack of merit in the appeal, but I think the appeal should not be dismissed but decided. The order of dismissal seems to me to be contrary to the spirit of the Civil Practice Act.