text:
    George C. Roberts, Appellee, v. Sauerman Brothers, Inc., Appellant.
    Gen. No. 40,694.

      Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Lucius, Buehler & Lucius and Young, Pares & Peterson, all of Chicago, for appellant; Albert E. Lucius and Thomas J. Young, of counsel.
    Howe, Rademacher & Kreamer and King, Taylor & King, all of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On April 22,' 1938, the circuit court of .Cook county-entered a summary judgment against defendant in the sum of $18,172.09. The action of the court was based upon a judgment of the circuit court of Fulton county, Kentucky, rendered on May 12, 1933. The Paige Engineering Company brought suit in the circuit court of Fulton county, Kentucky, against the Sweet-Price Dredging Company and therein levied an attachment against certain levee building machinery. Sauerman Brothers, defendant herein, brought suit against the sheriff and the Paige Engineering Company seeking to recover possession of the attached machinery, claiming a lien as conditional vendor. The two actions in Kentucky were consolidated by consent of the parties and transferred to the equity side of the court. The consolidated cause was twice tried in the circuit court in Kentucky and twice appealed to the court of appeals of Kentucky, which is the court of last resort of that State. The judgment on which the instant case is bottomed, was sustained by the court of appeals. In resisting the motion for summary judgment, defendant filed an affidavit of merits setting forth the proceedings in Kentucky and various provisions of the Constitutions of Kentucky and of the United States, and also various provisions of the statutes of Kentucky. The circuit court of Cook county ruled that the affidavit of merits did not state a defense and according^ entered judgment against defendant. The latter appealed to the Supreme Court, and in an opinion filed December 19, 1938 (370 Ill. 344) that court said:

‘ ‘ Of the affidavit it may be said, in general, that it seeks a relitigation of the matters determined in the circuit court of Fulton county. . . .

“It is apparent that none of these assignments of error raises any question requiring construction of the constitution of Illinois. All questions as to the constitution of Kentucky and the constitution of the United States were determined by the Kentucky courts and are not open for further inquiry here. We must give full faith and credit to the judgment of the circuit court of Fulton county, Kentucky, and while certain questions are raised in these briefs as to the manner of its certification, the sufficiency of its plácito, and as to the contents of the transcript, they are not such as raise any constitutional question for our consideration.” Consequently, our Supreme Court transferred the case.

Upon examination of the record, we find that the transcript of the judgment rendered in Kentucky is certified in conformity with the act of Congress. (See McMillan v. Lovejoy, 115 Ill. 498.) We have carefully examined the record and briefs and are convinced that the defense presented in the circuit court of Cook county and the points raised on appeal are a relitigation of the matters determined in the circuit court of Fulton county, Kentucky.

Paragraph (j) of the affidavit opposing the entry of the summary judgment states “that this affiant further says that he is informed and believes that the said Paige Engineering Company’s right of action in said proceedings in said Fulton County Circuit Court was based upon an indebtedness of the Sweet-Price Dredging Company to it, the said Paige Engineering Company, and that said defendant states upon information and belief that the said indebtedness of the Sweet-Price Dredging Company to the said Paige Engineering Company has been collected in full by said Paige Engineering Company and that therefore no right of action can be maintained upon the judgment sued on herein. ’ ’

Rule 15 of the rules adopted by the Supreme Court provides that affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiant, and that affidavits opposing the entry of such a judgment shall be drawn in the same manner. The rule further requires that the affidavit shall set forth with particularity the facts upon which the cause or defense is based, and shall have attached thereto sworn or certified copies of all papers upon which the parties rely; shall not consist of conclusions but of such facts as would be admissible in evidence, and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto, and that if the facts shown are not within the personal knowledge of one person, two or more affidavits shall be used. It is obvious that the portion of the affidavit above quoted is entirely inadequate. It is based on information and belief, contains conclusions and does not give the facts. Defendant criticizes the affidavit supporting the motion for summary judgment because it does not have attached thereto all of the exhibits on which it relies. The complaint does have attached thereto as exhibits the various documents upon which it relies, and the affidavit for summary judgment adopts the essential exhibits attached to the complaint. It would be a supererogation to require plaintiff to attach copies of the exhibits already in the files. Defendant urges that the trial court erred in granting the motion for summary judgment without regard to the pleadings previously filed, which raised substantial issues of law and fact to be tried by a jury. The fact that the pleadings joined issue does not prevent the entry of a summary judgment. The pleadings should be considered in -order that the court may know what the issues are. Ordinarily, a motion for summary judgment presupposes that the pleadings properly join issue. If the pleadings do not join issue, the usual practice is to dispose of them on motions to strike or to dismiss. A person may be able to state a good defense in a pleading, and yet when he is required to set up that defense in affidavits according to the requirements of Eule 15 of the Supreme Court, it may become apparent that he has no defense. If he has no defense, he is not entitled to a trial. The duty often devolves on the court during a trial to direct a verdict. Then the court decides that there is no issue of fact for the jury to pass on. Likewise, on a motion for summary judgment, when there is no triable issue of fact, the court is bound to enter judgment accordingly. Where the affidavits of merit raise an issue of fact, the motion for summary judgment must be denied. To try an issue of fact by affidavits would deprive a litigant of his right to a jury trial. (Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, 527.) In the instant case, however, there is no dispute as to the essential facts. Therefore, there was no issue of fact to be tried. We find that the affidavit for summary judgment was in substantial compliance with the Civil Practice Act and Rule 15 of the Supreme Court, and that the affidavit of merits filed by defendant does not set out a defense. Such affidavit of merits raised only issues of law and the court correctly ruled thereon.

As to the jurisdiction of the circuit court of Fulton county, Kentucky, we invite attention to sec. 48a, ch. 51, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.122], which required the circuit court of Cook county to take judicial notice of the constitution and laws of Kentucky. Under the laws of Kentucky the circuit court of Fulton county is a court of general jurisdiction. The court of appeals decided the questions of procedure in the Fulton county circuit court and we will give full faith and credit to the judgment rendered therein.

Because of the views expressed, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Mary Gaydos, Minor, by Michael Gaydos, Her Father and Next Friend, Appellee, v. George Peterson and Anna Peterson, Appellants.
    Gen. No. 40,408.
    Opinion filed April 26, 1939.
    Delmar J. Hill and Cedric C. Herrmann, both of Chicago, for appellants.
    Irving Stenn, Peter Fitzpatrick, and Marion J. Hannigan, all of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was instituted by the plaintiff by her next friend to recover damages for personal injuries alleged to have been sustained when the plaintiff, who was almost seven years of age, was struck at 49th street and Damen avenue, Chicago, Illinois, by an auto-' mobile driven by the defendant, Anna Peterson, and owned by her husband, the defendant, George Peterson.

The complaint alleges negligence and wilful and wanton misconduct. The case was submitted to a jury on the allegation of negligence alone. A judgment for $2,500 was entered on the verdict of the jury in favor of the plaintiff and against both defendants. It is from this judgment that the defendants appeal.

The accident, the subject of this controversy, occurred about 8:30 in the morning on March 2, 1937. The day was clear and the pavement dry. It appears from the evidence that the plaintiff was a minor, and that she was a pedestrian crossing from the west to the east side of 49th street on the north crosswalk of its intersection with Damen avenue. When the plaintiff stepped into the street the defendant Anna Peterson was approximately 55 to 65 feet north of the point where the plaintiff was then crossing. The plaintiff was walking east and arrived at a point in the middle of the southbound car tracks before she was struck.

The question as to the speed the car was going at the time of the accident is a controverted one. The plaintiff contends that the defendant was driving at a speed from 20 to 30 miles an hour at the time the plaintiff was struck. The plaintiff further controverts the defendants’ evidence that she sounded a horn and gave warning of the approach of the automobile being driven by the defendant, and being a question of fact it was the duty of the jury to return a verdict upon the evidence as presented by the plaintiff as well as by the defendants.

The evidence in support of the plaintiff’s case is that this minor at the time of the accident was a pedestrian —as we have already indicated — crossing from the west to the east side of 49th street on the north crosswalk of its intersection with Damen avenue. When the plaintiff stepped into the street it is claimed that the defendant was driving at a speed from 20 to 30 miles per hour, and at that time the defendant was approximately 55 to 65 feet north of the point where the plaintiff was crossing the street. At the time she was struck by the automobile she was struck by the front bumper and the left front headlight of the automobile. It is also suggested that the entire car passed over her; however, the wheels did not run over her. The car continued for a distance of about 10 feet after it passed over the plaintiff. There were no vehicles parked on the west side of Damen avenue north of 49th street. It is contended that the defendant did not sound a horn or give any warning of the approach of the aforesaid automobile. The distance from the west curb of Damen avenue to the west rail of the southbound car tracks was 13 feet, 3 inches, showing that the plaintiff walked the distance while within the vision of the defendant as she was driving the automobile. The brakes on the automobile were in good condition and moving at a speed of 20 miles an hour the car would stop in 19 feet, and at a speed of 25 miles an hour the car would stop in 22 feet, 9 inches. The plaintiff was picked up and taken into a store and was removed from there to the South Town Hospital, where she remained for a period of 10 days. It is alleged that the plaintiff sustained the following injuries : a “U” shaped laceration on the scalp which necessitated numerous sutures; severe bruise on the head in the area of the right eye which eye became entirely closed and remained so for a number of days. She was unconscious and remained in a semi-conscions state for several days. There were numerous bruises about her body. She continued to receive medical attention after leaving the hospital for a period of several months and at the time of trial there was a “IT” shaped sear which had become adhered to the skull; that she was suffering from excess lacrimation in the right eye and opacities in the vitreous and in the retina of the right eye.

The defendants, however, in opposition to the claim of the plaintiff, call attention to the following evidence : Mrs. Peterson testified that as she approached the intersection she saw the plaintiff standing on the sidewalk, and as a precaution she slowed down to 17 or 18 miles per hour; that she sounded the automobile horn not once but three times, and that she gave this warning when she was about 100 feet away from where the plaintiff was standing, and again about 40 feet and the last time when she was 3, 4, or 5 feet from the crosswalk. After each sounding of the horn the plaintiff was still standing in the same position. Then Mrs. Peterson looked to the left to see if there was anything coming out of 49th street from the east. Then looking to the front again she saw the plaintiff running to the southeast, around in front of the car, and she was then at a point a couple of feet from the right front fender. In the operation of the car Mrs. Peterson testified that she put on the brakes, including the emergency brake, and stopped within 4 or 5 feet. She testified that the car did not run over the child, but that the child immediately afterwards, starting from the left front fender, ran around the left side and to the rear of the stopped car.

It also appears from the evidence in the record that Mr. John Heller, called by the plaintiff, stated that he was driving north and as he approached the south edge of a viaduct near the place in question he saw the plaintiff in the act of stepping off the curb and into the street; that she was on the north sidewalk, which is about 175 feet north of the south edge .of the viaduct, and he testified he went 15 feet or so and then when the plaintiff was just 2 or 3 feet out into the street, he noticed the southbound car of Mrs. Peterson, and when he first saw the Peterson car it was north of the intersection, or about 50 feet north of the crosswalk where the plaintiff was. In Heller’s opinion Mrs. Peterson’s car was then going about 20 to 30 miles an hour. He testified he was driving his car 25 miles an hour, and as soon as he saw that the plaintiff was going to be struck he jammed on the brakes, and just about the moment of the impact he came to a stop with the front of his car even with the north edge of the viaduct; that at no time did he, Heller, see the plaintiff look to the north as she walked into the street; she was walking east, facing east, and was looking straight ahead. He could not recall whether the automobile slowed down before the impact or not. On cross-examination he changed his testimony and testified he knew that it did not slow down before the impact. Mrs. Peterson in her testimony said that she heard Heller after the police officer came, say to officer Collins : This lady was not to blame because the child ran out suddenly from the curb without giving her a chance to avoid the accident. The lady was driving "slow, or moderate and made a good stop.” Heller, however, denied making this statement, but the defendants were corroborated by the police officer Collins, who was produced by the defendants. While the questions are ones of fact, the defendants contend that the verdict of the jury was against the manifest weight of the evidence; that the evidence introduced was by Mr. Heller and the defendant Mrs. Peterson, together with that of the police officer Collins, who corroborated Mrs. Peterson’s testimony that the statement was made regarding what was said at the time Mr. Heller talked to the officer.

A vital question to be considered is what, if any, effect the evidence of the medical experts may have had upon the jury who returned a verdict for the plaintiff.

The first objection that is called to our attention by the defendants is that the court erred in permitting, over objection, the testimony as to what the plaintiff told the medical expert the night before the trial, and they point to the direct examination of Doctor Hoeltgen, who testified regarding the test he made in the course of the examination for the purpose of testifying in this case. He was asked what his test consisted of and his findings. He answered: “The first test was on a chart twenty feet from the patient. That is, I have a mirror ten feet away and we have an object over the patient’s head. We have letters and we ask them to tell us what letters she sees. We do this with one eye at a time. We cover one eye and test the opposite eye.” Objection was then made by the defendants upon the ground that the evidence would be subjective evidence. The court permitted the answer, and the doctor, after this ruling, described how he made the test. He used different charts or cards with letters and figures on them and asked the plaintiff what letters or numbers she saw. He admitted that the only way he could tell she was unable to see was from what she told him. On the basis of her statements of what she could and could not see, he determined- that her vision in the right eye was 16-200ths and in the left eye 16-50ths. This meant, he said, that the left eye, which was not injured in the accident, had refractive errors that gave plaintiff only one-third or perhaps one-half of normal vision in that eye, and that the right eye, the one bruised in the accident also had refractive errors that were apparently worse, although just how much of a defect iii vision the figure 16-200ths indicates was not explained.

The defendants contend that obviously the evidence that the plaintiff had refractive errors, based upon her statements the night before trial, was extremely damaging to the defendants, and it was made doubly prejudicial by .the doctor’s subsequent testimony that, while he could not account for the refractive errors in the left eye, the refractive errors in the right eye might and could be caused by the accident, and they call to our attention the case of Chicago & E. I. R. R. Co. v. Donworth, 203 Ill. 192, where the court said: “. . . the physician testified that he tested the hearing of appellee’s left ear by holding a watch at some distance from the ear and asking him whether he heard the ticking of the watch, and that the appellee said he did not; that he looked into appellee’s ear with a speculum ; that all he could tell from the examination made with the speculum was that the condition of the tympanum of the ear was such that it was his opinion the sense of hearing was somewhat affected, and that he knew his hearing was to some extent affected, and further testified that so far as it was possible to know, ‘it is my opinion that he has lost the hearing of his left ear, and that opinion is based upon what he told me and what I saw; what I saw did not tell me that he had lost the hearing, but merely that it might be affected. ’ ”

The defendant in that case moved to strike the testimony that the plaintiff had lost the power of hearing in his left ear, and the court on this question said: “. . . The opinion expressed by the physician that the appellee had lost the power of hearing in his left ear was,- it is clear, based upon the declarations of the appellee to the physician, and it was error to overrule the appellant companies ’ motion to strike such opinion from the evidence. The effect of these rulings of the court was to authorize the jury to regard as proven that the appellee had lost the sense of hearing in his left ear and to award appellee damages accordingly. Thus appellee was allowed to enhance his damages by proof of his own self-serving and incompetent assertions.”

This ruling has been approved by authorities from time to time, and it is the law that the physician who examines a party to litigation the night before trial is not qualified under the rule to consider the evidence of the plaintiff in determining the extent of the injuries she may have suffered. We, of course, understand that this physician was not the attending physician, but made an examination the night before for the purpose of testifying. This rule is supported by the case of Shaughnessy v. Holt, 236 Ill. 485; Chicago Union Traction Co. v. Giese, 229 Ill. 260; and Chicago City Ry. Co. v. Mauger, 128 Ill. App. 512.

The further question was presented that the court erred in denying the defendants’ motion to strike out testimony concerning the mere probability of future disability, and the defendants suggest that one of the consequences of the accident claimed by the plaintiff was the existence of opacities in the vitreous in her right eye. Those opacities and the unabsorbed hemorrhage on the retina were the only evidence of trauma that the plaintiff’s expert claimed to find objectively in the eyeball the night before the trial. The doctor testified that opacities in the vitreous make vision somewhat blurred and sometimes people with opacities will see spots in front of their eyes. The defendants therefore claimed that the opacities were a substantial item in the injury claimed by the plaintiff, and that' the question of what degree or prospect of future disability, if any, the plaintiff was entitled to show by evidence, and to have damages assessed for, was exceedingly important, and point to the questions that were presented to and answered by Dr. Hoeltgen. One of the questions is: “In your opinion to a reasonable medical certainty, is that a permanent condition — first of all, the vitreous, the opacities in the vitreous?” to which the doctor answered: “Yes. It is awfully hard to say that is permanent, but on the other hand it has been there a considerable time.” This was objected to and the objection sustained by the court, after which this question was asked by the plaintiff’s attorney: “Have you an opinion, Doctor, to a reasonable medical certainty about the opacities in the vitreous of the right eye?” to which the doctor answered: “I would say that they may be permanent, but there is a chance that they may absorb.” To this answer a motion was made by the defendants that it be stricken, which motion was denied. The defendants contend that their motion to strike was well-founded. When the doctor said the opacities may be permanent or may absorb, it was clear that he had, on the question of permanence, no opinion to a reasonable medical certainty, which was what he was asked and the only thing he could properly be asked. His answer showed that all he had in mind was a possibility, a conjecture, a mere speculation and the answer, if for no other reason, should have been stricken as unresponsive. The case of Lauth v. Chicago Union Traction Co., 244 Ill. 244, which .was cited by the defendants, seems to be in point upon this immediate question, wherein the Supreme Court said:

“In this class of cases, in estimating the pecuniary loss, all the consequences of the injury, future as well as past, which are shown by the evidence to be reasonably certain to result fr.om the injury, are to be taken into consideration. To form a proper basis for recovery, however, it is necessary that the consequences relied on must be reasonably certain to result. They cannot be purely speculative.” And the court in that case reached the conclusion that the fact that a remittitur was entered and agreed to did not cure the error caused by the admission of evidence of the character before us. So we believe the court should have stricken the answers made by-the doctor. At the same time it is difficult to determine just what effect this evidence would have had on the jury, and more especially since we have reached the conclusion that the evidence is rather close; that the record should be free from error, and that the jury must not be influenced by evidence that is improper to be considered. In view of that fact we believe the judgment should be reversed and the cause remanded.

Other questions have been called to our attention, but since there is to be a further trial it will not be necessary to consider them, as they are all before the parties who will present the litigation to the court and a jury.

Reversed and remanded.

Denis EL Sullivan, P. J., and Burke, J., concur.


text:
    The People of the State of Illinois ex rel. John J. Whalen, Appellant, v. Thomas Sheehan and Catherine Sheehan, Appellees.
    Gen. No. 40,420.

      Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Martin Piepenburg and Gilbert T. Graham, both of Chicago, for appellant.
    No appearance for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This cause is in this court upon an appeal by the petitioner from an order that was modified by the court upon petitioner’s motion, by vacating the portion thereof which provides that from 11 a. m. to 3 p. m. each Sunday the maternal grandparents, who are the defendants in said cause, shall have the right to the custody of the child for visitation purposes. This modification order was entered on June 13,1938, more than 30 days after the entry of the order, upon the verified petition of John J. Whalen, the father of the child, John Whalen, Jr., who was 2½ years of age at the time of the proceeding. The mother of this child died on January 25, 1938, and at the request of the defendants, the maternal grandparents of the child, the petitioner permitted the child on February 1, 1938, to remain with them upon their promise to return the child upon request of the petitioner, which was made on February 4, that year. On that day they refused to return the child to the father, and on February 10, he filed a petition for a writ of habeas corpus.

Upon consideration of the facts the court entered an order in part that the father be and is hereby given care and custody of the child, and that the defendants Thomas Sheehan and Catherine Sheehan deliver up this child to the petitioner, the father.

The theory upon which this appeal is taken by the petitioner is that the trial court had no jurisdiction to modify the order after the expiration of more than 30 days from the date of its entry, and the petitioner questions the right of the court to enter such order. The question of jurisdiction of the court to enter such order allowing the maternal grandparents to visit and have custody of the child for the period fixed by the order has been passed upon by courts of appeal wherein it has been held that immediate members of the family of a deceased mother may be entitled to the custody of the child under proper circumstances. This rule was followed in McKercher v. Green, 13 Colo. App. 270, 58 Pac. 406; Manning v. Crawford, 8 Ga. App. 835, 70 S. E. 959; Crawford v. Manning, 12 Ga. App. 54, 76 S. E. 771. While this question has not been passed upon by the court of this State, still it seems to be the rule applicable to the instant case that the court may permit the maternal grandparents of the child the right to visit and have custody of the child for the period fixed in the order. The authorities seem to indicate that if the court gives possession of the child to the maternal grandparents for reasons which would justify this order, the court could in the same order direct that the father be permitted to see the child on the occasions fixed by the order. So, if the court had jurisdiction to pass upon the order as originally entered, the petitioner in this case induced the court to enter this erroneous order, of which he cannot complain, and being an erroneous order, the decree is reversed with directions to the court to strike from the order the modification thereof entered on June 13, 1938.

Order reversed and remanded with directions.

Denis E. Sullivan, P. J., concurs, and Burke, J., takes no part.


text:
    Municipal Employes Insurance Association of Chicago, Appellant, v. Mary Udally Taylor, Formerly Known as Mary Udally, Appellee.
    Gen. No. 40,429.
    Opinion filed April 26, 1939.
    Robert M. Krone, of Chicago, for appellant.
    Cornelius R. Palmer, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order entered in the circuit court of Cook county, dismissing the plaintiff’s complaint for want of equity. The complaint is for the cancellation and rescission of a certificate of insurance held by the defendant as beneficiary.

The complaint is substantially as follows : That the plaintiff is a corporation duly licensed and existing under and by virtue of the laws of the State of Illinois, and that it brings its complaint against Mary Udally Taylor, defendant; that on or about the 2nd day of July, 1937, one Frank Udally, applied to the plaintiff for a $1,000 policy of insurance upon his life; that the wife of the insured, the defendant herein, was named the beneficiary in said insurance policy; that Frank Udally signed an application for insurance, and that the application contained the following agreement:

“It is agreed that the insurance hereby applied for shall not take effect until a policy is issued and delivered by the Association and the first premium paid thereon in full, during the lifetime and good health of the applicant whose life is proposed for -insurance.” In the application for insurance the following question was asked and the following answer given:

“Q. 17. Health record: Have you within the past five years received treatment or consulted any physician or practitioner?

“A. None.”

The further question was asked:

“Q. Have you ever had or consulted a physician for: Rheumatism, Influenza, Cancer, Tumor, Syphilis, Tuberculosis of any part of the Body, disease of Heart or blood vessels, any affection of the Chest or Throat, Stomach or Bowel trouble, Indigestion, Appendicitis, Painful Urination, Any Disease of Kidneys or Bladder, Dysentery, Brain or Nervous System, Fits, Paralysis, Nervous Breakdown, Insanity, Ear Trouble, or Surgical Operations ?

“A. No.”

And the further question:

‘ ‘ Q. Have you now, or have you ever had, any disease, deformity, accident or injury other than listed above?

“A. No.” That relying upon the answers of the insured to the questions, the plaintiff issued to him its certificate of insurance No. 1728 of group policy No. 1, for $1,000, and the insured having paid the premium due for the first quarter, in the sum of $3.75, the policy of insurance was delivered to him; that on September 30, 1937, the plaintiff accepted the premium of $3.75 for the succeeding quarter; that the answers in the application for insurance were made by the applicant, Frank Udally, and that all answers were false and fraudulent and made with the intent to defraud the plaintiff; that while the said Frank Udally answered he had not received treatment from a physician within the five years preceding the making of this application he had in fact been treated on numerous occasions during that period for cirrhosis of the liver and cystitis, as more fully set out in the complaint; that had the plaintiff been aware of the falsity of the answers it would not have issued the certificate of insurance to Frank Udally; that the certificate of insurance is void by reason of the concealment by Frank Udally of the true facts with reference to the state of his health; that by reason thereof the said application and certificate never became effective as a binding contract between the plaintiff and Frank Udally.

It further appears in this statement that Frank Udally died on October 4, 1937, at the Edward Hines Hospital, Hines, Illinois; that the caus.e of death was uremia, and the other contributing causes were cirrhosis of the liver, secondary anemia and cardiac enlargement ; that the diseases were and had been chronic and that Frank Udally knew that the answers set forth in the application were false and fraudulent; that on or about October 25,1937, proof of death was presented to the plaintiff by the defendant, as beneficiary, for the payment of the face value of the certificate, $1,000; that the plaintiff did not know at the time the certificate was issued or at any time thereafter until about February 10, 1938, that Frank Udally had been treated by a certain Dr. Scubczynski for cirrhosis of the liver; that it did not know, until March 4, 1938, that Frank Udally had been treated by a certain Dr. Lescher for a bladder disorder and for a cold; that the plaintiff, on or about February 24, 1938, made tender of $7.50 to the defendant, said sum being the total amount of premiums paid by or on behalf of Frank Udally, which tender was refused.

The complaint alleges that the plaintiff is without adequate remedy in the premises, except in a court of equity, and prays that the defendant be required to answer this complaint and show cause, if she has any, why the plaintiff may not have the relief prayed, and that the defendant Mary Udally Taylor be required to deliver the certificate of insurance to the plaintiff to be canceled, and further, that the insurance policy be declared by the court to be void and of no effect.

Thereafter the defendant made a motion to dismiss the complaint. From the record it appears that defendant’s motion to dismiss was denied and the defendant was directed to file an answer within 20 days from the date of the filing of the order. Subsequently, another motion to dismiss the bill of complaint was filed on May 13, 1938, upon the ground that the plaintiff had a complete and adequate opportunity at law to contest the policy and present its defense; and further, that the issue involved in this cause is an issue of fact and law and can properly be decided in a court of law, where the defendant will have the opportunity to have a trial by jury, and upon other grounds appearing in the motion.

After considering this motion the court entered an order that the plaintiff’s suit be dismissed for want of equity, which order the plaintiff contends was erroneous.

It appears from the record that a previous motion, which was presented by the defendant to dismiss the complaint upon the grounds specified, was denied by the court on May 10, 1938. The order is as follows:

“It is ordered that defendant’s motion to dismiss the complaint in Equity be and the same is hereby denied. It is further ordered that defendant answer said complaint within 20 days of this date.” Subsequently the defendant presented a like motion on May 12, 1938, to dismiss the plaintiff’s complaint, which was filed without leave having been granted, but the court later on June 21, 1938, considered this motion notwithstanding the defendant was not granted leave to file a like motion upon the questions involved, and the court after hearing both parties, who filed briefs on the questions involved, entered this motion:

“Be it, and it is hereby Ordered, Adjudged and Decreed that the Bill of Complaint in said cause be, and the same is hereby dismissed for want of equity, at the costs of said plaintiff.”

To this order the plaintiff takes exception and prays an appeal, and urges as a ground that the question involved here is whether or not the present Civil Practice Act limits the defendant as to the number of motions to dismiss which may be filed in the cause on the same or similar grounds after a denial by the court of the defendant’s first motion, and that under the Civil Practice Act Ill. Rev. Stat. 1937, ch. 110, sec. 169 [Jones Ill. Stats. Ann. 104.045], objections to the pleading are to be raised by motion, which is to be considered in the place of a demurrer as was formerly the practice in disposing of cases upon that point. Being a general demurrer, this motion admits the facts that are well pleaded.

It is to be noted that the order of the court disposing of the first motion, sustained the motion of the plaintiff and then directed that defendant file its answer within the time fixed in the order, which is interlocutory, and not final, as the second order is where the court sustained the defendant’s motion and dismissed the plaintiff’s bill for want of equity.

Counsel for the plaintiff in this action relies upon the case of Berry v. Turner, 279 Ill. 338. It appears in the Appellate Court case, which is a writ of error proceeding, the defendant in error did not join in error but instead filed three special pleas in bar of the action, based upon the bankruptcy proceedings, as constituting a bar to the writ of error in the Appellate Court. . The plaintiff in error demurred to each of the pleas, and the Appellate Court sustained the demurrer as to the first plea and overruled the demurrer as to the second and third pleas. Thereupon the plaintiff in error filed a replication to each of said pleas, to which the defendant in error demurred. The court sustained the demurrer to each of the replications, denied the plaintiff in error leave to plead further, and entered judgment dismissing the writ of error and taxing the costs to the plaintiff in error. The Supreme Court said:

“It is also urged that the court erred in denying leave to plead over after demurrer sustained to the replications. The courts are invested with broad discretion in matters of this character, and where, as in this case, it is apparent that no attempt was made to raise any questions of fact on the issue tendered by the pleas by the replications thereto, we see no abuse of discretion in denying the motion for leave to plead over. Especially is this true where no showing is made in support of the motion for leave to plead over.”

So that in the instant case it was a matter of discretion as to whether the trial court would consider the motion that was subsequently presented. The court considered the motion and entered an order dismissing the plaintiff’s bill for want of equity, from which order this appeal is taken. For the reason stated, the judgment of the court in dismissing the bill is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    Helena Reichwein, Trustee Under the Last Will and Testament of Christina Reichwein, Deceased, Appellant, v. Julia R. McCarthy, Appellee.
    Gen. No. 40,442.
    Opinion filed April 26, 1939.
    Randolph Bohrer, of Chicago, for appellant; Birchard P. Hayes, of Chicago, of counsel.
    John A. Zvetina and Clifford K. Rubin, both of Chicago, for appellee; Henry Pollenz, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

A verified complaint in chancery to foreclose a certain trust deed was filed in the circuit court of Cook county, Illinois. Answers and a counterclaim were filed by certain defendants, who made a motion to dismiss the complaint on the ground that Note (A) alleged in the complaint as the property of the plaintiff was in point of fact and law paid, canceled and extinguished. An order of special reference was entered by the court and the cause referred to a master in chancery to take testimony and make his report upon the facts and law as to whether or not Note A for $500 was paid and extinguished, subordinated or canceled and whether or not the plaintiff had a right to institute this foreclosure suit. After considering the report of the master in chancery and the objections thereto, the court entered the decree here appealed from, which found that Note A had not been paid or canceled or distinguished, but was subordinated to Note B and that the plaintiff had a right to institute this suit of foreclosure.

The complaint alleged that the plaintiff is the owner and holder of a principal promissory Note A, for the sum of $500 due three years after date and having attached thereto an extension agreement dated October 18, 1930 extending the due date for one year to October 18, 1931. Note A is one of two notes secured by a trust deed sought to be foreclosed herein dated October 18,1927. The other note, secured by this trust deed, Note B, is for the sum of $2,500 due five years after date. It is further alleged that there was a default in the payment of Notes A and B and that this suit is instituted for the benefit of all noteholders as provided under the terms of the trust deed. The answer of Robert B. Gunter berg and Amy Gunterberg, defendants hereto, admits all the allegations of the complaint filed herein except those allegations contained in paragraph 7 of the complaint, wherein the plaintiff alleges that the plaintiff is the owner and holder of Note A for $500, payable October 18, 1930. The defendants only deny that the plaintiff is the legal owner and holder of the principal Note A, but do not deny that Note A was outstanding and unpaid. Later, Robert B. Gunterberg filed an amended answer in which he again admitted all the allegations set forth in the complaint except those in paragraph 7 thereof and in addition denied the right of the plaintiff to bring this action, and affirmatively alleged: (1) That on or about October 25, 1927, he purchased Notes A and B secured by the trust deed in question, for a valuable consideration from John A. Schmidt & Company of Chicago, the house of issue; (2) that shortly after Note A became due and payable on October 18,1930, he presented Note A to John A. Schmidt & Company, the house of issue; (3) that the note was paid and became extinguished; (4) and that Helena Reichwein acquired the Note A on or about October 9,1932, after the entire indebtedness had matured and become due and payable. Robert B. Gunterberg filed an amendment to the amended answer, admitting all the allegations contained in the complaint except paragraph 7 thereof and except those allegations specifically denied in the amended answer as filed. A counterclaim, an amended counterclaim and an amendment to the counterclaim were filed by Robert B. Gunterberg as a part of the aforementioned answers, those counterclaims constituting a complaint in chancery similar to plaintiff’s complaint except that it is alleged there that Note A was paid and extinguished.

The Lawndale National Bank & Trust Company as trustee filed its verified answer under trust No. 1003, intervening defendant herein, by Robert B. Gunterberg, its duly authorized agent, filed by leave of court first duly had and obtained, and is in language similar to the answer filed by Robert B. Gunterberg. This answer admits all the allegations set forth in the complaint except as to paragraph 7 and contends that Note A was paid on or about October 18,1930, and became extinguished, and further alleges that Robert B. Gunterberg was the original owner of Note A and that when said Note A became due or shortly thereafter, Robert B. Gunterberg presented it to John A. Schmidt & Company for payment and that Helena Reiehwein acquired the same after maturity from John A. Schmidt & Company. Later the Lawndale National Bank as trustee under trust No. 1003 by Robert B. Gunterberg, filed its amendment to its answer, in which all the allegations set forth in the complaint filed therein are admitted except paragraph 7 and except those allegations specifically denied in the amended answer. The issue raised by the answer of the Lawndale National Bank & Trust Company as trustee under trust No. 1003 by Robert B. Gunterberg, its duly authorized agent, is similar and can be considered the same as the issue raised by Robert B. Gunterberg in his answer.

John A. Schmidt, deceased, was in 1927, both the head of John A. Schmidt & Company, investment and mortgage brokers, and co-trustee with Helena Reichwein of the estate of Christina Reiehwein; deceased. John A. Schmidt had funds of the Reiehwein estate, and was the active trustee in keeping the Reiehwein funds invested and reinvested. In October of 1927 the trust deed sought to be foreclosed was negotiated through John A. Schmidt & Company. Julia McCarthy executed two notes — Note A for $500 and Note B for $2,500, both payable to the order of herself and indorsed by her in blank. As security for the payment of these notes Julia McCarthy executed the said trust deed conveying certain real estate in Cook county to John A. Schmidt, trustee. The two notes were negotiated through the office of John A. Schmidt & Company and sold to Robert B. Gunterberg on or about November 25, 1927. By presenting the interest coupons to John A. Schmidt, Mr. G-unterberg received the semi-annual instalments of interest on both Notes A and B from time to time to and including the interest coupons series 6 due October 18, 1930. Prior to October 18, 1930, Robert B. G-unterberg delivered Note A to John A. Schmidt and a few days thereafter received $500 therefor.

An extension agreement dated October 18, 1930 was executed between John A. Schmidt & Company and Julia R. McCarthy extending the time of payment of Note A for one year to October 18,1931. Neither Julia R. McCarthy nor anyone in her behalf ever paid the principal amount due on Note A.

In a settlement of accounts with the estate of John A. Schmidt, deceased, Helena Reiehwein as trustee under the last will and testament of Christina Reichwein, deceased, plaintiff, received on October 29, 1932, Note A with the extension agreement attached thereto.

In this action the suit filed by the plaintiff was a foreclosure proceeding and upon special reference to a master the court entered a decretal order as to whether Note A for $500 was paid; approved the master’s report, and directed that the Note A in the principal sum of $500, being one of the notes described in a certain trust deed, made and executed by Julia R. McCarthy to John A. Schmidt, as trustee, dated October 18, 1927, be subordinated to Note B in the sum of $2,500, also executed by Julia R. McCarthy, and secured by the same trust deed, and further ordered that the plaintiff had the right to maintain the same pursuant to the provision of this decree.

It is to be noted that the decree is not final in that it does not dispose of the questions that are to be considered by the court in this foreclosure proceeding, so that from the record as we have it here, the decree entered is an interlocutory decree and not a final one.

In the case of Barber v. Tolman, 176 Ill. App. 123, the court said:

“If upon a reference to a master the things to be done, or the facts to be ascertained, are in execution of the decree, then the decree is final; but if the things to be done or the facts to be ascertained are preparatory to a decision and final decree, then the decree is interlocutory. The failure to observe this distinction sometimes causes confusion. On the other hand, with the distinction clearly in mind, it seems that the courts have disagreed in some instances whether the tilings to be done or ascertained on a reference were in execution of a final decree or preparatory thereto.” And then quote from the case of Gray v. Ames, 220 Ill. 251, where the court say: “Where the chancellor fails to fix the principles by which the accounts are to be stated and judicial action on his part is contemplated and necessary, or where some equity other than that involved in the accounting remains for further adjudication, then such decree is interlocutory, unless the status of the account or other matter to be thereafter determined is apart from the equities involved.” The court in this case also quoted from the case of Rosenthal v. Board of Education, 239 Ill. 29, where the court say: “A judgment or a decree is only final and appeal-able when it terminates the litigation between the parties on the merits of the case, so that when affirmed the court below has only to proceed with the execution of the judgment or decree. (Citing Chicago & N. W. R. Co. v. City of Chicago, 148 Ill. 141; Gray v. Ames, 220 Ill. 251; Brodhead v. Minges, 198 Ill. 513.) A decree which retains the cause for the future determination of matters of substantial controversy between the parties is not final and appealable.”

In the instant case the decree in the foreclosure proceeding was not entered, so that the questions involved as between the parties have not been settled, and such being the fact, the decree that was entered as an interlocutory one is not final, and therefore not appealable.

For the reasons stated the appeal is dismissed.

Appeal dismissed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    Joseph Aukopovicz et al., Appellants, v. L. H. Heymann, et al., Appellees.
    Gen. No. 40,477.

      Opinion filed April 26, 1939.
    Shulman, Shulman & Abrams and Morris Bromberg, all of Chicago, for appellants; Meyer Abrams, of counsel.
    William C. Bausch, of Chicago, for certain appellees.
    John M. Lee and Carl M. Loos, both of Chicago, for certain other appellees.
    Earl V. Brown, of Chicago, for certain other appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This was a bill in equity by a group of bondholders against the individual members of a bondholders’ protective committee of bonds sold by the West Side Trust & Savings Bank seeking relief to remove the members of the committee and their agents for malfeasance, misfeasance, accounting, and other relief. The several defendants filed their motions to strike and to dismiss which were sustained by the court, with leave to amend. An amended complaint was filed to which motions to dismiss were again filed and sustained. Plaintiffs elected to stand by the amended complaint which was then dismissed for want of equity. Thereupon the plaintiffs appealed.

The plaintiffs suggest to the court that the first 10 allegations of the complaint stated in general terms, without detail, the nature of the cause of action. The details as to each particular property were set forth in the eleventh paragraph. It was alleged: (1) That plaintiffs were investors in.“gold bonds” purchased from the West Side Trust & Savings Bank (the issuing house, and trustee of each of the issues), which bank was in business until August, 1933, when it was closed by the auditor of public accounts; (2) the principal defendants, Heymann, Morris and Isaacs, were financially interested as officers and directors of the bank and in charge of its management; (3) during the bank’s existence many defaults occurred, and in order to continue the sale of the bonds the bank concealed the defaults by advancing its funds on defaulted bonds and coupons until September 30, 1931; (4) that the principal defendants styled themselves as the protective committee under an agreement of September 30, 1931; (5) they urged the investors to deposit their bonds on representations that the committee was organized to protect their interests; that the bank, as trustee in possession, would collect the income for the benefit of the investors and would pay all of the expenses of the committee and cost of reorganization; (6) relying thereon the bonds were deposited by the plaintiffs and others; (7) from the date of the creation of the committee for a period of two years while the bank was open no reorganization was effected. During those years the committee permitted the diversion of the funds from the income for the personal benefit of their bank; (8) after the closing of the bank up to the early part of 1937 there was a controversy between the receiver and the committee for the right to appoint successor trustees and to control the properties. This was compromised in the middle of the year 1937 when the division of the spoil was agreed upon between the committee and the receiver; (9) no reorganization was effected of any property when the complaint was filed and not one cent was disbursed to depositing bondholders ; (10) plaintiffs discovered the real purpose of the committee was to protect the bank on its defaulted bonds and coupons in the amount of approximately $3,000,000 to enable the bank to place these bonds which should have been subordinated by law on equal parity with that of the investors and to enable it to apply the income on defaulted bonds and coupons.

It was further alleged (11) that since the creation of the committee many foreclosures were instituted resulting in decrees placing the defaulted bonds of the bank on equal parity and the use of the defaulted bonds in lieu of cash in purchasing the property. Non-depositors were frozen out and while the properties were acquired for the benefit of depositing bondholders no reorganizations were ever effected. The committee failed to take charge of the properties and permitted the application of the income for the benefit of the bank. In other instances sales were held, and the committee failed to bid and permitted the bondholders to be frozen out without giving them the opportunity to protect their interests.

The details as to each bond issue were set forth giving the name of each issue, the amount, the number of the defaulted bonds owned by the bank, the date of the acquisition thereof, the entry of the decree placing the bonds on a parity, the sale and its results.

It was further alleged that a bond issue in the amount of $105,000 was floated by the bank on the Cullom Apartments. A default was made in the payment of the first instalment of $4,000 on November 17, 1929. This default was concealed from the investors. Another default in the payment of $4,000 was also made in the following year and concealed from the investors. The .semiannual interest payments which were due in May and November of the year 1930 were likewise defaulted and concealed from the investors. In each instance the bank cashed the bonds and coupons on and after maturity and held them uncanceled. Additional bonds were likewise acquired, making a total of principal bonds in the aggregate sum of $22,-000 besides the interest coupons. These bonds and coupons acquired on and after maturity were declared to be on equal parity with the bonds of the investors in the decree of foreclosure, which foreclosure was instituted at the request of the committee by the bank, which was the owner of the defaulted bonds and coupons and which held out to the court that it was the qualified representative of the bondholders and its interest was not in conflict with theirs. The committee which promised to protect the interest of the investors used all these bonds in lieu of cash when it purchased the property at the master’s sale in the name of its nominee. A loss to all investors was thereby caused by the direct action of the committee to the extent of $22,000 in principal and of the interest coupons which were by law subordinated or paid and which was used as cash in the purchase of the property and in the distribution to the nondepositors.

In connection with the Cullom Apartments when the nondepositors presented their bonds for collection the 10 per cent was not available to them.

A similar state of facts identical in each feature, except as to the amount, was set forth in the bill pertaining to the Fantha Apartments and to the 'Minisbee Apartments.

It is charged that in regard to the Parkway Apartments the committee informed the bondholders on March 15, 1932, that the trustee entered into possession for their benefit and that the committee acquired title, having paid therefor $1,000. The bank had acquired many bonds and coupons on and after default and such bonds and coupons were commingled with the other bonds of the depositors. Of the total outstanding bonds of $48,000 the committee had on deposit $45,000. The committee permitted the application of the income collected by the trustee while in possession for reimbursement to the bank on its defaulted bonds and coupons of the January, 1932, maturity. The income of the property was also used to acquire the equity of redemption. The committee now entered into a deal to sell the deposited bonds, the equity of redemption, and further, the resignation of its appointed trustee and the plaintiff in the case to a purchaser, and the depositors were informed that they must accept the proceeds of the sale or execute a release for all torts and frauds if they desired to withdraw their bonds. This committee, which had $45,000 of the $48,000 outstanding bonds on deposit now claims to have in its possession only $4,500 of the bonds.

It is further charged that the committee permitted the Avithdrawal of the bonds and thereby it enabled the receiver of the bank to collect on equal parity with the other depositors on the basis of sale price. In stating the value of the property it figured all of the bonds and coupons on equal parity and deducted the item of $1,406.60 for reimbursements to the receiver for purchasing the equity of redemption.

On the Phylis-Ruth Apartments the bank entered into possession on November 7, 1931. The income was applied in reimbursement for defaulted bonds and coupons of July, 1931 maturity. This diversion of the funds was done while the property remained in default for the 1928, 1929 and 1930 taxes and penalties accrued thereon.

The complaint charged that similar deals were made by the committee and the receiver in comiection with many of the other properties involved, and unless the defendants will be restrained from carrying out their aforesaid scheme, the interest of the beneficiaries will be greatly and irreparably damaged, and they will suffer and sustain irreparable loss; The committee and the receiver who acquired the equity of redemption with the funds derived from the income of the premises and who placed the title in the name of the Liberty National Bank of Chicago were and are trustees for the beneficiaries, and the transfer of the title was a breach of trust for which they should be held liable.

The complaint further charged that this protective committee which undertook to protect the rights and interests of the bondholders was in duty bound to press every claim against the receiver of the bank to return the moneys illegally applied from the income of the property in payment of the defaulted bonds and coupons and to subordinate the bonds of the receiver to those of the depositors, but instead of protecting the interests of the investors it is coercing them to release the receiver of the bank and to enable the receiver to collect on all of the bonds owned by the bank on an equal parity with those of the depositors; that while it is the duty of E. R. Burnett, as successor trustee to protect the estate, he is merely acting as the tool of the committee and tenders resignations whenever requested by the committee in order to carry out the foregoing scheme, and it is unfair and inequitable to permit the said Burnett to remain as trustee and if a competent trustee would be appointed.he would equitably and fairly represent the interests of the investors and protect their rights and remedies.

One of the important features of this case is the execution on September 30, 1931, by the principal defendants of an agreement called ‘ ‘ Deposit Agreement, ’ ’ to the effect that on or about September 30, 1931 the principal defendants, three of the original members of the committee, namely, L. H. Heymann, Nelson Morris and Henry Isaacs, who were financially interested in the bank as stockholders, officers and directors, formed themselves into an alleged bondholders’ committee for the protection of the bondholders under an agreement called “Deposit Agreement” dated September 30, 1931.

It further appears that simultaneously with the formation of the committee, a letter was sent to the bondholders soliciting them to deposit their bonds in the bank as depositary, which letter was addressed to each of the bondholders and contained, among other things, the following:

“In order to protect the interest of the bondholders, the Trustee has taken possession of the property and will, if possible, purchase clear title for a nominal consideration, otherwise foreclosure proceedings will be necessary so that the building can be acquired and ultimate reorganization of this bond issue accomplished.

“To protect the interest of bondholders, this Committee has been formed. There will be no charge to the bondholders for services of the Committee, the fees of its attorneys or the services of the West Side Trust & Savings Bank of Chicago as Depositary.

“So that this Bondholders’ Committee may serve and protect your interest, it is imperative that bonds be deposited promptly, accompanied by the enclosed letter of transmittal filled out and signed. Each depositor will receive in exchange for his bond, a depositary certificate.”

When we come to examine the amended bill of complaint we find that this deposit agreement dated September 30, 1931, signed by the members of the committee named, is not attached, and therefore this court is unable to consider the terms of this agreement and whether it has any particular application to the amended bill of complaint of the plaintiff.

Various charges are made in this amended complaint, among which it is claimed that the bondholders ’ committee was guilty of violation of the terms of the agreement that was entered into for the benefit of the bondholders. It further appears from the prayer of the complaint that the court may find that the bondholders’ protective committee was created for the purpose of carrying out a fraudulent scheme, and that they were and are disqualified to act, and due to the fact that they have concealed information from the bondholders, and to the malfeasance and misfeasance in office, they should be removed from office and their successors appointed or the entire agreement be declared fraudulent and void. And it further appears from the relief prayed that in the event the court finds that the deposit agreement is binding, then the court may declare the present members of the committee, or some of them, disqualified and removed from office. Therefore, it is important that this agreement that we have referred to should have been made a part of the amended complaint. As we have already noted in this opinion the defendants filed their motion to strike and to dismiss the amended complaint based on motions permitted by sections 45 and 48 of the Civil Practice Act, and the ground for these motions is specifically set forth in the motions.

The defendants call our attention to the fact that the amended complaint attempts to state many causes of action in one suit, namely, a cause of action on each of 44 bond issues. The defendants having filed separate motions to dismiss under section 48 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 172; Jones Ill. Stats. Ann. 104.048] on specific grounds as required by that section, and also having filed a motion under section 45 of the Practice Act to strike the amended complaint in its entirety, or to strike various portions or divisions, alleging reasons therefor, the sustaining by the trial court of all aforesaid motions struck each portion or division of the amended complaint.

The plaintiffs assert, by way of conclusions, violation of various duties by the bank as trustee in possession and the committee, but nowhere do we find in the record the foundation instruments setting out what those duties were. The deposit agreement outlined the duties and obligations of the committee and of the depositors. The trust deed outlined the contract between the trustee and the bondholders and between the bondholders themselves. Therefore, it is contended that without the deposit agreement or trust deed being attached as exhibits and made a part of the amended complaint or pertinent provisions thereof set forth in the amended complaint, no court could determine whether the members of the committee or the bank as trustee had violated any of its duties, while the plaintiffs contend in reply to the suggestions regarding the failure to attach the deposit agreement to the amended bill, that it was attached to the original bill and made a part thereof and, therefore, it is still before the court notwithstanding the court sustained a motion to strike the bill of complaint. By failure of the plaintiffs to abstract the deposit agreement and the trust deeds that have been referred to in the agreement, the court does not have these instruments before it, and is therefore unable to properly consider them and what effect they would have on the questions involved in this litigation. The importance of these instruments being in the record is stated by the Supreme Court in the case of Chicago Title & Trust Co. v. Chief Wash Co., 368 Ill. 146, where the court said:

“The controlling issue presented for decision is whether plaintiff’s action in initiating the foreclosure proceeding warranted the findings quoted from the decree of June 5, 1936, and its removal as trustee. To determine this question a review of the pertinent provisions of the trust deed is essential since a trust itself constitutes the charter of the trustee’s powers and duties. From it he derives the rule of his conduct, and it not only prescribes the extent and limit of his anthority but also furnishes the measure of his obligations.” So from what was said by the Supreme Court, the only way in which this court could reach a conclusion as to the duties of the members of the bondholders’ protective committee would be by examining the deposit agreement and consulting the trust deed providing for the duties of the trustee appointed by this document. And further, it is provided by section 36 of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, par. 160 [Jones Ill. Stats. Ann. 104.036]) as follows:

‘‘(Exhibits.) Whenever an action, defense or counterclaim is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader shall attach to his pleading an affidavit stating facts showing that such instrument is not accessible to him. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit shall constitute a part of the pleading for all purposes. No profert shall be necessary. ’ ’

Now when we come to consider the questions that have been called to our attention by the plaintiffs in regard to the Cullom Apartments, the Fantha and the Minisbee Apartments, certain charges are made in regard to the duties of the committee, as well as whether the trustee acted improperly in the disbursement of the funds. This would have to be determined from the terms of the trust deed, and not having the instrument before us we are unable to consider these questions. The same applies to the charges made in regard to the Sarose Apartments, the Fairfield Apartments, the Parkway Apartments, and the Phylis-Ruth Apartments.

The plaintiffs contend that the amended complaint was well pleaded and stated a cause of action entitling the plaintiffs the relief sought, and that the court erred in dismissing the amended complaint for want of equity. While it is true that motions to dismiss admit the well-pleaded allegations to be true, still such allegations, of course, are to be considered by the court in the disposition of the points brought to the attention of the court.

The plaintiffs rely largely on the contention that the committee committed a fraud when it bid at the sales of the property involved in this litigation, under a foreclosure decree, at 10 cents on the dollar, and failed to pay the 10 cents.

When we come to consider the rights of nondepositors who have not joined with other depositors in the agreement entered into by these defendants for their benefit, of course nondepositors are not a party to this agreement, and therefore cannot complain of the bid that was made for the reason that the nondepositors would have had to be present at the sale and offer a bid, as would the nominee of the committee when the sale took place. This, according to the bill, the non-depositors failed to do, and further, it does not appear that they objected to the approval of the sale, or at any time took steps which would justify the suggestion made by them that this sale was a fraudulent one and therefore they were defrauded by the acts of this committee.

The plaintiffs criticize the motions that were made as being hypercritical and hypocritical and the sustaining of such pleadings nullified the effect of'the Civil Practice Act, and suggest that the motion to dismiss under section 48 did not set forth grounds for dismissal. From an examination of the motion it seems to the court that there were several items mentioned therein as being specific grounds upon which the court would be justified in entering the order of dismissal. The plaintiffs contend that they having filed a reply to the motion to dismiss under section 48 denying the allegations contained in the affidavit in support of the motion and in the absence of any evidence, the court was powerless to sustain this motion. Just what the objection to the procedure was does not appear to have been made by the plaintiffs at the time the court entered the motions.

It is argued that no evidence was heard by the court, and in the absence thereof the court could not predicate the dismissal on matters contained in the affidavit without evidence. Well, if the record on this point is not preserved by the plaintiffs they are not in a position to complain upon the grounds urged. We believe that the motion made as provided for by section 48 was specific, and that the court properly considered the motion when presented.

Then again, it is further urged by the plaintiffs that the motion to dismiss under section 45 was insufficient in law and should have been overruled, and if we consider the brief filed by the plaintiffs upon this point, it is said that a mere glance at the confusing and voluminous pleadings upon the motions to dismiss upon the 40 alleged grounds, motion to dismiss under section 48 and motion to dismiss under section 45 will be sufficient to convince the court that every effort was made to confuse and becloud the issues, and that the rules of practice and procedure were deliberately violated and grossly transgressed. It would appear to this court from this statement that the motions were sufficiently specific not to incite criticism of the plaintiffs.

The defendants contend that the amended complaint was insufficient in law and the defendants’ motions to strike it in its entirety or various portions or divisions thereof and dismiss it under section 45 were properly sustained, and rely on the opinion of the court in Hoff v. Heymann, 295 Ill. App. 622, 15 N. E. (2d) 347 (Abst.). They contend that the criticism of the court of the complaint in that case applies to the pending appeal since the allegation of the instant amended complaint are strikingly similar, and suggest that the amended complaint states that the plaintiffs are investors in gold bonds and subsequently state that certificates of deposit were issued to them. They do not state that they are present owners of certificates, nor do they state what bonds they invested in. The first 10 paragraphs and the first paragraph of paragraph 11 of the amended complaint are general and conclusions which might be applied to any bond issue. We agree with this statement.

When we examine the opinion in the case of Hoff v. Heymaim, 295 Ill. App. 622 (Abst.), it is clear that the allegations contained in the petition filed by the plaintiffs in the instant case are similar and that many of the statements of fact are vague, and what the court said in that case applies here. The court said: “If we eliminate the conclusions of the pleader there is practically nothing left to the complaint. We have read the complaint not only as it appears in the abstract but also in the record. Stripped of bare conclusions it fails to give any information which would justify a decree as prayed.” For the reasons stated we are of the opinion that the court was justified in striking the amended bill of complaint. To a like effect is the opinion in the case of Dolan v. Morensky; Burnett v. Carey, 294 Ill. App. 615 (Abst.).

Having considered the questions we regard as material we are of the opinion that the court did not err in striking the amended complaint, and, the plaintiffs having elected to stand by this amended complaint, that the court was justified in dismissing the action for want of equity. The judgment therefore is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    Charles E. Bay, Appellee, v. The Baltimore & Ohio Railroad Company, Appellant.
    Gen. No. 40,498.
    Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Edward W. Rawlins, H. D. Sheean and E. W. Lademann, all of Chicago, for appellant.
    Edward B. Henslee and Samuel Cohen, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This suit was instituted by the plaintiff, Charles E. Bay, to recover damages on account of personal injuries sustained by him October 15, 1936, at Shelby, Ohio. He was at the time employed by the defendant as a conductor and claims that he was injured while engaged in a switching movement by reason of his left hand being caught between the couplers of two freight cars. Trial was had before the court and a jury, and a verdict was returned by the jury in favor of the plaintiff, assessing his damages at $17,000. After the usual motions, judgment was entered by the court on the verdict, from which judgment the defendant appeals.

Plaintiff’s complaint alleges that on October 15, 1936, the defendant was a railroad corporation engaged in the business of handling and transporting commerce as a common carrier, and operated its line of railway through the States of Ohio, Illinois, and through Shelby in Richland county, Ohio, and that at that time plaintiff was in the employ of the defendant as a train conductor, and at the time of the accident plaintiff and defendant were engaged in transporting cars in interstate commerce.

It is further alleged that the plaintiff was in the performance of his duties as a conductor at Shelby, Ohio, and while adjusting the coupling between two cars of the train, through the careless, negligent and wrongful conduct of the defendant in violation of the act of Congress, the cars moved together and caught and crushed plaintiff’s hand and arm, and for the reasons alleged, this suit was instituted.

Plaintiff’s complaint is based upon the claim, and the sole claim relied upon by him upon the trial, that the defendant was guilty of a violation of the Safety Appliance Act with reference to couplers, 45 U. S. Code Ann. sec. 2, and at the request of the plaintiff the jury was so instructed.

At the close of plaintiff’s case and again at the close of all the evidence the defendant moved the court in writing for a peremptory instruction to find it not guilty. These motions were overruled, together with defendant’s motion for a new trial.

From the evidence it appears that the accident in question happened on October 15, 1936, at Shelby, Ohio, that at the time plaintiff was working as a freight conductor in the employ of the defendant, and was working on a run from Mansfield, Ohio to Willard, Ohio. He was an experienced trainman, having been a brakeman or conductor for the defendant for about 35 years. At the time of the accident he was 60 years of age.

Plaintiff and the crew, of which he was conductor, were at the time in question engaged in switching at what is referred to as the house track, and just prior to the time of the happening of the accident he had been riding a cut of two cars into that track for the purpose he said of coupling onto another car which was standing on said track, which car was later to be switched out. He was riding the lead car of the two which were moving. In describing the accident plaintiff testified on direct examination that they had cut off two cars and were putting them on the house track; that his head brakeman cut the cars off on the main track; that as he cut them the engine gave them a little start into the house track; that he, the plaintiff, rode the lead car onto the siding; that the knuckle on this car on which he was riding and the knuckle on the car standing on the house track were both open; that when they came together they both locked; they were so wide they locked; that they would not shut. He further said that the standing car bounced away five or eight feet; that he then stepped off and went in between the ends of the cars and pulled the drawbar over; that his foot slipped and he fell forward; that to pull the drawbar over he put one hand underneath and one on top and pulled it towards him; that his foot slipped and he fell forward; that he threw out his hands and his arm got caught in the drawbar; that the two cars, the íavo that were being shoved in on the house track, followed him up; that they were coming slowly and he had plenty of time and plenty of room if he had not fallen; that his arm dropped right on top of the coupler and was caught between the couplers of the standing car and the lead car. The plaintiff testified he was thoroughly familiar with the yard and the condition of the tracks, and was in there practically every day for some months prior to the accident and knew the condition of the track all the time, and that he was the man who was at the time directing the movement of the train and the placing of the cars. He further said that he got off the cars while they were moving slowly, ran ahead between the moving cars and pulled the drawbar over; that the car he was on had a cutting device, a pin lifter, for the purpose of opening or closing knuckles; that he did not try to use the pin lifter at all; that the cars coupled and came to a standstill and coupled his hand into them; that he had just let loose of the draw-bar when he slipped and that is what cut his arm.

There were no actual eyewitnesses to the accident other than the plaintiff.

Following the happening of the accident and on the same day, Irvin J. Bundschu, a witness for the defendant, who was assistant car foreman for the defendant in the vicinity of Shelby, inspected the cars involved in the accident. He said he made a complete inspection of the body, safety appliances, underframe, couplers, trucks, etc.; that he found the couplers to be in good condition. He said he had been inspecting cars since 1914, and was familiar with the various types of couplers; that the cars in question were equipped with A. R. A. couplers. The evidence tends to show that at the point where the coupling was made, the track was straight; that by defective couplers the witness meant broken or distorted or bent out of line which would give a side motion and let the coupler pass. He further said he did not find any such condition on the couplers in question.

The defendant called as a witness Joseph Merritt, who was the head brakeman of the crew with which the plaintiff was working at the time, and the man who cut the two cars in question off. He testified that he did not see the accident but learned about it immediately afterwards; that he was the first man to come up after the accident; that the cars involved in the accident were on the house track; that one had been standing there; that he did not make a personal examination of the couplers, but after the accident they separated the two cars and coupled them for inspection, at which time they were moved to a different track; they were coupled together and they separated them.

The defendant contends there is no evidence in the record tending to show that any supposed violation of the Safety Appliance Act was the proximate cause of the injuries complained of by the plaintiff. As we have already indicated, the plaintiff testified he had adjusted the couplers and that he then fell and threw his hand into them because of the fact that he slipped; that he pitched forward, let loose of the drawbar and as a result cut his arm. The defendant further contends it is clear that according to his own story he had adjusted the coupler and would not have been injured if he had not thereafter slipped and fallen; that under this situation, the supposed violation of the statute was not the proximate cause of the injury but at most did nothing more than furnish a condition which made the accident and injury possible, and calls to our attention the case of Streeter v. Humrichouse, 357 Ill. 234. The decedent was injured by an automobile while he was riding on the footboard of an engine in violation of a rule of the railroad company. In discussing the question under consideration and after citing and quoting from various decisions, the court said: “In the case before us McGann’s breach of the rule by riding on the foot-board at the end of the tender did nothing more than furnish a condition which made the injury he received possible. It did not directly and proximately produce or help to produce the result as an efficient cause of the collision and consequent injury.”

The defendant further cites in support of its position the case of Lerette v. Director General of Railroads, 306 Ill. 348.

The plaintiff’s reply is that he was riding down on one of the cars for the purpose of seeing that they were coupled with another car; that he did this in the usual, proper manner required in railroading; that the cars did not couple; one coupler went by the other. In railroad parlance it is termed “locked.” The plaintiff observed that one coupler was out of alignment and therefore did not couple, and he immediately, in performance of his duty, alighted while the cars were moving slowly, and pushed the coupler squarely in the center so it lined up perfectly, when the other ear came back and caught his arm. The plaintiff further calls our attention to the fact that the plaintiff and the defendant were engaged in interstate commerce; that Congress enacted these safety appliance requirements for the protection of employees, and the United States Supreme Court has consistently held that a mere failure of the safety device to operate, even though the appliance is in perfect condition, even though the defendant was in the exercise of care and caution in maintaining, operating and inspecting the device, liability fastens against the railroad if the employee, in a coupler operation, went between the cars when the coupling failed to make automatically, to adjust them with his hand.

One of the cases upon which the plaintiff relies is Brady v. Terminal R. Ass’n of St. Louis, 303 U. S. 10, 82 L. Ed. 614, 58 Sup. Ct. 426, wherein Chief Justice Hughes said:

‘ ‘ This final question must be determined in the light of the nature of the obligation resting upon the carrier iu relation to the use of a defective car. The statutory-liability is not based upon the carrier’s negligence. The duty imposed is an absolute one, and the carrier is not excused by any showing of care, however assiduous. ’ ’

The defendant contends that the trial court erred in refusing to instruct the jury to find the defendant not guilty at the close of all the evidence as requested by it for the reason that there is no substantial credible evidence in the record tending to show or from which it could properly be found that the defendant was guilty of a violation of the Safety Appliance Act as charged, and suggests that the plaintiff’s evidence is improbable; that he was a man who had had long experience in railroading. He said the cars were moving very slowly and a little upgrade; that they came together but the couplers did not couple; that the impact shoved the standing car on which the brakes had been set five or eight feet ahead; that he then got off and went between the ends of the cars to pull the couplers over and that the two cars, the head one of which he had been riding, continued moving slowly and bumped again, and that after he had the couplers pulled over, he slipped and fell, throwing his hand between the couplers. Not only that, but he said he did not try to use the pin lifter with which the cars were equipped; that it is wholly improbable that a man of plaintiff’s long experience would have attempted to adjust the couplers while the cars were still moving, for there was apparently no hurry, and such act was wholly needless. However, wholly apart from that, the fact is, according to the statement which the plaintiff made and signed following the accident, that he was not at the time the accident occurred attempting to adjust the couplers or make a coupling at all. It appears the accident occurred on Thursday and that Mr. Rogers, the train master, took the plaintiff’s statement. In the statement which was signed by the plaintiff he stated he did not know whether he slipped or fell off the step or how it was, but whatever it was it threw him between the cars; that it was done so quickly he did not know what happened; that he must have flung his arm in, as he had no occasion to open the knuckles because they were open. And in response to the question of whether or not he was adjusting the couplers with his hands, he said, “No, sir, I did not adjust the couplers, no the couplers were open.” He further stated he knew it was a violation of the rules to attempt to adjust couplers while cars were moving and that there was no occasion for him to touch the couplers at all. He also said what he intended to do when he got off was to put a chunk under the wheels to hold the car until he came back after it. Upon being asked if he were getting off the step how it came he did not fall under the car, he answered, “That is what I don’t know, whether it hit the other car and knocked me in there or not.” He further said in the statement that the couplers seemed to be in good working order.

It appears that the plaintiff admitted he signed the statement. The only thing he says is that he did not remember what was in it. He does not claim that he was not in a perfectly normal mental condition or did not know what he was talking about when Mr. Rogers called and took the statement. It also appears that one Bond, the station agent at Shelby, who had known the plaintiff for 20 years visited him at the hospital almost every day he was there and who was the man who took the statement back to the plaintiff for the purpose of having him read it over and sign it, testified that he and the plaintiff went over the statement together; that they went over it question by question, after which the plaintiff asked him what he, Bond, thought about it, and in response he told the plaintiff, “Well, Charlie, I don’t know a thing about it. Use your own judgment, and if you think it is all right, sign it, and if you don’t, don’t sign it.” Whereupon the plaintiff signed the statement, but the plaintiff upon cross-examination admitted he talked to Bond about some of the things in the statement when Bond brought it up to be signed. And then a witness named Neibargcr, who was an engineer and who had known the plaintiff for about 30 years, said he went to the hospital to see the plaintiff; that the plaintiff was feeling first rate, able to talk clearly and apparently understood what they were talking about; that he asked the plaintiff how it happened and he said, “Well, I don’t know”; that he went back to the hospital several days later, and said to the plaintiff, “Perhaps if I had not laid off this would not have happened,” and the plaintiff replied, “It was no fault of the engineer. I don’t know how it happened. ’ ’

Another railroad man named Vaneff called at the hospital to see the plaintiff, and some other men were waiting outside the plaintiff’s room while Mr. Bond and his wife were in the room, and he heard the plaintiff and Bond talking about the matter. Upon going into the room and talking with the plaintiff, he, the plaintiff, told them he did not know how it happened any more than they did. Dr. Dowds, the doctor who treated the plaintiff, also testified that the plaintiff told him he did not know how the accident happened. So that when we come to examine the plaintiff’s story and the statements he made there is an indication that they were contrary to the testimony given by the plaintiff when the cause came up for hearing.

The only explanation by the plaintiff and which appears in the record is that he did not give a different version, he always stated that he did not know what happened. He never described the accident as happening in any particular manner. His motive and reason must be clear and apparent. The company’s rule — all railroads have it in their rule book — is that “employees are prohibited from adjusting the coupler or knuckle with the hands or feet while the car or engine are about to be coupled — or to attempt to adjust couplers while cars are moving.” (Rule 20 on B. & O.) In the statement the defendant took from the plaintiff, his knowledge of this rule was emphasized. The poor, unfortunate fellow probably felt he would be reprimanded, punished, put out of service with all rights and be deprived of everything because he violated this apparently mandatory and absolute rule and went in between the moving cars to adjust the coupler. Then it is stated that one fact should appear outstanding: “It is impossible that the accident happened without the plaintiff knowing just how it did.” But it must be assumed that in spite of pain and opiates, the plaintiff knew the mission of these folks when his statement was being taken. Probably pressed and goaded by them, under the circumstances he gave them as little information as he possibly could as far as details are concerned, always affirmatively saying he did not know just what caused the accident which caught his arm in the couplers and crushed it off. There is no case of the plaintiff giving two versions of the accident or the occurrence; it is a case of the plaintiff purposely and wilfully concealing the facts for his own motive, to avoid chastisement in some form or other which he foolishly believed would have come to him had he told the truth. This statement by the attorney in plaintiff’s brief is rather startling. We are unable to understand the theory of these false statements. In pointing to the facts as they appear in the record, the plaintiff’s theory is that the plaintiff purposely and wilfully concealed the truth in the statement above referred to, and he likewise falsified in the numerous statements he made to his fellow workers that he did not know how the accident occurred, and this was the character of his story until he testified at the trial. The defendant states that to permit testimony of such character to form the basis of a judgment would, to say the least, be making a travesty of the law, and we quite agree with this suggestion made by the defendant. The testimony of witnesses must be true, not only for consideration by the court, but also by the jury, and after considering the statements of counsel for the plaintiff, and particularly the statement that “the plaintiff purposely and wilfully concealed the facts for his own motive, to avoid chastisement in some form or other which he foolishly believed would have come to him had he told the truth, ’ ’ the court is of the opinion that it is justified in reversing the judgment and remanding the cause for another trial.

Reversed and remanded.

Denis E. Sullivan, P. J., and Burice, J., concur.