author: Mr. Justice Riess

text:
    People of the State of Illinois, Plaintiff in Error, v. Thomas E. McArdle, Sr., Defendant in Error.
    Gen. No. 9,105.
    Opinion filed April 20, 1938.
    Otto Keener, Attorney General, for plaintiff in error; A. B. Dennis and W. S. Dolan, Assistants Attorney General, and William P. Roberts, State’s Attorney, of counsel.
    Green, Costigan & Wines, of Chicago, for defendant in error.
   Mr. Justice Riess

delivered the opinion of the court.

Defendant in error, Thomas E. MeArdle, Sr., was charged in an indictment containing two counts returned by a grand jury of Sangamon county, with violation of the provisions of sections 5 and 6 of the motor fuel tax law [Ill. Rev. Stat. 1937, ch. 120, §§ 421 and 422; Jones Ill. Stats. Ann. 85.102, 85.103], The first count charged failure and refusal to account for and report such tax to the department of finance of the State of Illinois in violation of said section 5, and the second count charged failure and refusal to make payment of such motor fuel tax money to said department in violation of section 6 of the act. A motion to quash the indictment was allowed, and the defendant was discharged, from which judgment writ of error was taken to the Supreme Court and the cause was transferred to this court upon the ground that the offense charged was a misdemeanor and not a felony.

It is contended by the plaintiff in error that the indictment properly charges an offense naming a corporate principal, who, under the provisions of the above statute, can be punished by fine only and against a natural person as accessory who is also subject to punishment upon conviction by fine only, to the same extent and manner that the corporate principal may be punished, and collectible only by issuance and levy of writs of execution and not by imprisonment. Defendant in error contends that under the Motor Fuel Tax Act, a natural person cannot be indicted nor convicted as an accessory to a corporate principal because of the alternative provisions of the act, which provides for fine or imprisonment or both fine and imprisonment.

The following principles of law have been recognized by the courts of review of this State: First — A corporation cannot be indicted or convicted of a felony or offense involving imprisonment or death because of its artificial nature. (People v. Strong, 363 Ill. 602, 2 N. E. (2d) 942.) Second — A corporation can be indicted and convicted of an offense punishable by fine only or by the infliction of a fine where the penalty provided for is either by fine or imprisonment or by fine and imprisonment. (People v. Strong, supra; People v. Duncan, 363 Ill. 495, 2 N. E. (2d) 705.) Third —-An accessory-before the fact can be indicted and convicted as a principal, but the penalty assessed against such accessory can in no event be greater than the punishment that could be inflicted upon the principal. (People v. Duncan, supra.)

A discussion of the construction and application of the provisions of certain sections of the Motor Fuel Tax Act upon which the indictment herein was predicated was had by the Supreme Court of this State in several cases.

The motor fuel tax law of 1929 (Ill. State Bar Stats. 1935, ch. 95a, ¶ 79 et seq. [Jones Ill. Stats. Ann. 85.099 et seq.]) imposes a tax upon the privilege of operating motor vehicles upon the public highways based upon the consumption of motor fuel. It provides that the tax shall be collected by a “distributor,” and that no person shall act as a distributor without first securing a license from the department of finance. According to the act, the term “person” includes “any natural individual . . . partnership . . . (or) corporation.” The distributor, upon making sale of motor fuel, is required to collect the tax, at the rate of three cents per gallon, at the time of making the sale, and shall between the first and twentieth days of each calendar month make return under oath to the department of finance of all motor fuel sold by him during the preceding month. “Any distributor who fails or refuses to make payment to the department as so provided shall be punished by fine not to exceed $5,000 or by imprisonment in the penitentiary not less than one year nor more than five years, or by both such fine and imprisonment. ’’

Section 15 of the act as amended by an act approved July 3, 1931, provides: “Whoever ... or refuses to malee payment to the Department of Finance as provided in either Section 6 or Section 7 shall be punished by a fine of not to exceed $5,000 or by imprisonment in the penitentiary for not less than one year or more than five years or by both such fine and imprisonment.”

In the case of People v. Kopman, 358 Ill. 479, 193 N. E. 516, it was held that although the Motor Fuel Tax Act provides a penalty for failure to pay the tax money to the State, a dealer who fraudulently converts the tax to his own use may be prosecuted for embezzlement under section 74 of the Criminal Code [Ill. Rev. Stat. 1937, ch. 38, § 207; Jones Ill. Stats. Ann. 37.167], since the statute makes the distributor an agent of the State as a collector of the tax and it comes into Ms hands while he is acting in a fiduciary capacity as such agent. It was therein contended by the defendant that the provisions of section 15 of the Motor Fuel Tax Act [Ill. Rev. Stat. 1937, ch. 120, § 431; Jones Ill. Stats. Ann. 85.116] provides exclusive penalties for the violation of the act, but the court held that such provision was not exclusive and that an indictment for embezzlement would lie.

In the subsequent ease of People v. Strong, supra, wherein the opinion was written by the same justice, it was held that an indictment for embezzlement against a defendant corporation under the above section would not lie; since the conversion of property exceeding $15 in value constituted a felony; that a corporation could not be prosecuted for a felony since it could not be imprisoned; and that since the principal could not be prosecuted for such felonious conversion, the officers and agents of the corporation could not be prosecuted as accessories, for “without a principal there are no accessories.” The court, at page 605, further held that “The facts set forth in this indictment would support a charge that the Greenwood Oil Company violated the provisions of the Motor Fuel law. Such violation is a misdemeanor, as it is punishable by a fine, imprisonment, or both. ... At common law a corporation was not indictable for a felony or a misdemeanor, but this rule has been modified, and the general rule now is that a corporation cannot be indicted for a crime where the penalty imposed by statute is death or imprisonment, but where a fine may be imposed upon a corporation it is subject to criminal prosecution. Even where the penalty provided is fine or imprisonment, or both, in the discretion of the court, a corporation is not immune from criminal prosecution and may suffer the penalty of fine.” (7 R. C. L. 768; State v. Seattle Nat. Bank, 33 A. L. R. 1206.)

In the case of People v. Duncan, supra, it was also held that a corporation, on account of its very nature, cannot commit nor be indicted for an alleged crime wherein the penalty prescribed is either death or imprisonment only, but where the penalty is both fine and imprisonment the corporate offender can be punished by imposing a fine, inasmuch as the two penalties are independent. It is further there held that an accessory before the fact cannot be punished more severely than his principal.

In that case the defendant Duncan was the president and acting manager of all the business of the Blue Rose Oil Company, a corporation. An indictment was returned in the criminal court of Cook county charging the defendant Charles E. Duncan as an accessory before the fact and so indicted under the statute as a principal with violation of the Motor Fuel Tax Act. After trial by jury, he was found and adjudged by the court to be guilty as charged. Under four of the counts, he was sentenced to five years imprisonment in the penitentiary, such sentences to run concurrently, and under each of the remaining 18 counts he was fined $2,000 and ordered to be committed to the house of correction of said county if such fines were not paid by the time he was released from prison.

It was there held that “The penalty provisions of the Motor Fuel Tax Act cannot be applied to imprison a natural person who is an accessory before the fact, where his principal is a corporation.” In the discussion of the principles applicable to the facts in that case, the court, at page 497, held that “The charge is based upon the accessory statute of the Criminal Code, (Smith’s Stat. 1933, chap. 38, par. 582; Cahill’s Stat. 1933, chap. 38, par. 611.) ” which provides in substance that the defendant as an accessory before the fact “shall be considered as principal, and punished accordingly”; that the penalty was imposed under the above provisions of the motor fuel tax laws; that the principal was a corporation; that while a corporation may be proceeded against criminally for the violation of a penal statute, an exception exists in cases wherein the punishment calls for imprisonment or death only, in which cases a corporation cannot commit the offense or be indicted, but that “where the statutory penalty is both fine and imprisonment, the corporate offender can be punished by imposing a fine, inasmuch as the two penalties are independent. (United States v. Union Supply Co., 215 U. S. 50; 54 L. Ed. 87; 7 R. C. L. sec. 784.) ” It was there further said that “The theory is that a court shall apply the appropriate penalty in such instances as far as possible, in order that the corporate defendant shall not escape all punishment. ’

The court then held that Duncan had received a penalty which his principal could not receive. At common law the punishment meted out to principals and to their accessories before the fact is generally the same. (People v. Jordan, 244 Ill. 386, 91 N. E. 482; 16 C. J., sec. 3217, p. 1365.) “Such type of an accessory and his principal were usually joined in the same indictment and tried together. The accessory before the fact could not be punished more severely than his principal, although it was proper for him to receive as much or less of the particular punishment meted out. ’’

In thus seeking to apply the penalties of the Motor Fuel Tax Act by meting out to an accessory a greater penalty than could be meted out to the principal, the trial court was held to have acted on an erroneous theory and to the extent that the accessory act would apply a greater penalty than could be applied against the principal under the provisions of the Motor Fuel Tax Act, it was held to be repugnant and inapplicable, since a natural person as an accessory could not be punished to a greater extent than the corporation, which was a principal.

A corporation can only be subjected to a fine, which fine cannot be enforced or collected by imprisonment; hence any judgment undertaking to collect a fine by commitment of the accessory would, of necessity, contravene the rule that no greater penalty could be meted out to an accessory than to a principal.

In the instant case, the indictment charges the president of the company, in his individual capacity, with being an accessory before the fact to a corporate principal, and under the above rule, the accessory, although a natural person, may be so indicted and become amenable to punishment to the extent that the corporate principal could be punished, which is by fine only, assessable and collectible to the extent and in the manner in which it may be enforceable ag*ainst the corporate principal.

The judgment of the circuit court is therefore reversed and the cause remanded with directions to the trial court to set aside the judgment quashing the indictment and discharging the defendant and for further proceedings in accordance with the holding of this court.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    People of the State of Illinois ex rel. Everett R. Brewer, Appellee, v. Edward J. Kelly et al., Appellants.
    Gen. No. 40,011.
    Opinion filed May 2, 1938.

      Barnet Hodes, Corporation Counsel, for appellants; Walter V. Schaefer, Assistant Corporation Counsel, of counsel.
    Fred I. Simon, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Everett R. Brewer applied to the proper city officials for a building permit for the construction of a residence with a garage in the rear, and submitted plans prepared by a duly licensed architect. The permit was refused on the sole ground that the top of certain of the windows was less than seven feet above the floor and therefore did not comply with the provisions of the city ordinance. Plaintiff then filed his petition praying for a writ of mandamus to compel the issuance of the permit. After the issue was made up the cause was heard by the court without a jury, a judgment entered awarding the writ, and the defendants, the city officials, appeal.

As presented to this court, the sole question for decision is the meaning of section 1241 (b) of the Revised Chicago Code of 1931, and whether it is applicable to the type of window described in plaintiff’s plans submitted to defendants. Section 1241 (b) provides : “In every building hereafter erected for or converted to the purpose of class III, every habitable room shall have a window or windows with a total glass area equal to at least one-tenth of its floor area, opening onto a street, alley or yard as defined in section 1406; provided, that there shall be a space of at least three feet between the building and the lot line on one side, and a space of at least one foot between the building and the lot on the other side. None of such required windows shall have a glass area of less than ten square feet; and each such window shall have its top not less than seven feet above the floor and shall be so constructed that at least its upper half may be opened its full width. No such habitable room shall have a floor area of less than eighty square feet, nor a clear height from floor to ceiling of less than eight feet and six inches; provided, that attic rooms need not be eight feet six inches high for more than one-half of their area; and provided, further, that such attic rooms shall have total cubic contents of not less than seven hundred and fifty cubic feet each.” And it seems to be conceded that the rooms of the residence proposed to be constructed and in which the windows objected to are to be placed are “habitable rooms” within the meaning* of the ordinance.

The undisputed evidence shows that the rooms in which the proposed windows are to be placed will meet every requirement of the ordinance except that the tops of the windows in question will be “less than seven feet above the floor, ’ ’ i. e., but six feet above the floor; in fact the proposed plan of the building shows that the “total glass area,” “floor area” and “height of ceiling from the floor” will be more than required by the ordinance.

The court in the judgment made the following finding: “The Court Further Finds, that the provisions of section 1241 of the Revised Chicago Code of 1931, with respect to the height of windows, are applicable to double hung* sash windows and are not applicable to steel casements of the type shown upon the plans which accompanied petitioner’s application for a build-' ing permit and identified in these proceedings as Exhibits ‘D,’ ‘D-l’ and ‘F,’ and that under that construction of said section 1241 of the Revised Chicago Code of 1931, the said section of the ordinance is valid.”

Counsel for defendants in their brief say the purpose of the ordinance “is to establish minimum standards with respect to light and ventilation in habitable rooms in residence dwellings to be constructed in the city. It does so by fixing minimum requirements for the area and for the position of windows. It first requires that there be a minimum glass area of not less than ten per cent of the floor area. This minimum glass area may be satisfied by one or more windows. Those windows whose glass area is included in determining the total required area of ten per cent of the floor area are denominated required windows. ’ Each required window is to be constructed so that at least its upper half is capable of being opened, and so that the top of that portion of each required window which opens is at least seven feet above the floor.” And that, “Nowhere in the ordinance is there any suggestion of a possible variation in these requirements depending . . . upon the manner in which the window is opened. ’ ’

Photostatic copies of the plans for the construction of some of the windows which were found by the health department to be in conflict with the provisions of the ordinance, are in the record. These windows are designated, “casement windows” and open the entire length of the window, each half being hing’ed to the side, while the “double hung sash windows” with which everyone is familiar, may be moved up or down so that at no time can more than one-half of the window be opened. And there is evidence in the record to the effect that prior to, and at the time of the enactment of the ordinance in question, which was back at least as far as 1911 (Chicago Code, 1911, p. 86, ¶ 274) the double hung sash window was the only type that was in general use and that the “casement” windows were at that time little known in this country. A witness also gave testimony which we think shows that casement windows, such as were described in plaintiff’s plans for the proposed residence, would furnish more light and air in rooms than double hung- sash windows. There is also evidence that a number of buildings of the better type have been constructed in Chicago in which windows were placed as plaintiff seeks to place them in the instant case. This evidence we think is proper to be considered in determining whether the ordinance applied to this type of window. While we think section 1241 (b) is clear and unambiguous, yet we are of opinion that the court was warranted in hearing’ evidence to determine whether the ordinance applied to windows of the steel casement type.

Upon a consideration of all the evidence in the record we are of opinion that the casement windows described in the plans submitted are superior, from a health point of view, to the old type of double hung sash window, and for the reasons stated the ordinance in question does not apply to the casement type of window in so far as the requirement that the top of such windows be at least seven feet above the floor is concerned.

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

Judgment affirmed.

McSurely and Matchett, JJ., concur.


author: Mr. Presiding Justice Friend

text:
    Arthur F. Gourley, Appellant, v. Chicago & Eastern Illinois Railway Company, Appellee.
    Gen. No. 39,098.

      Opinion filed May 3, 1938.
    Rehearing denied May 17, 1938.
    Ryan, Sinnott & Miller, of Chicago, for appellant.
    Edward W. Rawlins, of Chicago, and Craig Van Meter, for appellee; K. L. Richmond, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Arthur F. Gourley, plaintiff, brought suit to recover damages for personal injuries sustained in a collision between two railroad trains at Marion, Illinois. After the jury had returned a verdict in his favor for $80,000, the court rendered judgment in favor of the defendant, non obstante veredicto, from which plaintiff appeals.

The amended complaint, as subsequently amended, consisting of one count, alleges in substance that on and prior to August 3, 1933, the Chicago & Eastern Illinois Railway Company, defendant, was engaged in interstate transportation as a common carrier, and was on August 3,1933, operating a train in a northerly direction at or near a grade crossing of the Illinois Central Railroad in Marion, Williamson county, Illinois; that the Illinois Central Railroad was also a common carrier engaged in interstate commerce; that plaintifF was working for the latter company as an engineer and was operating a locomotive which was hauling a train in an easterly direction toward the grade crossing at Marion, and that plaintiff was not under the provisions of the Workmen’s Compensation Act; that there was in force at the time of the accident a statute which provides that all trains, when approaching a grade crossing with another railroad, shall be brought to a stop before reaching the same and within 800 feet therefrom, and shall not proceed until the engineer “shall positively ascertain that the way is clear and that the train can safely resume its course.” (Ch. 114, par. 91, sec. 12, p. 2246, Cahill’s Til. St. 1933.) It is averred that there were certain buildings, tanks and structures near the southwest corner of the intersection of the two railroads which restricted the view of the operators of the locomotives on both lines; that there was a stop sign on the C. & E. I. track, 220 feet south of the crossing, and a similar sign on the I. C. track, 310 feet west of the crossing; that there was a long established uniform custom and practice on each railroad for the engines approaching this crossing to stop at their respective stop boards or stop signs and to whistle before proceeding, and that the engine which first arrived at the sign, and stopped and whistled, was conceded the right of way over the crossing; that plaintiff knew of this custom and relied thereon; that he brought his train to a stop at the customary place, gave the customary whistle signal and used reasonable care to ascertain that the way was clear before proceeding; that plaintiff’s train had started away from the stop sign before defendant’s train arrived at its customary stopping place; and that at the time plaintiff started his train the way was clear and the' train could and would have proceeded safely over the crossing except for the failure of defendant to comply with the custom and statute. It is averred that plaintiff was in the exercise of ordinary care but that defendant was guilty of negligence, generally and specifically, in that it operated its locomotive toward the grade crossing at a high rate of speed where the view was restricted, that it failed to keep a reasonably careful lookout ahead and in the direction in which the locomotive was moving, that it failed to bring defendant’s train to a stop before passing the stop board or before reaching the grade crossing, and was also negligent in failing to bring the train to a stop before reaching the crossing and within 800 feet therefrom, in violation of the statute and of the practice and custom.

Defendant moved to dismiss the amended complaint, as amended, setting forth the following four specific reasons in support of the motion: (1) that the complaint shows no actionable negligence and alleges no breach of any legal duty owed by defendant to plaintiff; (2) that the complaint shows on its face that plaintiff has no cause of action, because par. 91, ch. 114 of the statutes set forth in the complaint makes it the personal duty of plaintiff, after bringing his train to a stop, to positively ascertain that the way was clear and that it could safely resume its course, and there being no allegations that plaintiff did so ascertain and the facts alleged show that the way was not clear, and that the train could not safely resume its course; (3) that the allegations relative to the custom of the trains to stop at their respective stop boards and whistle, and the custom of conceding the right of way to the train that first started from the stop board, set up a practice and custom in violation of the duty imposed upon plaintiff by par. 91, ch. 114 of the statute, and therefore these allegations should be stricken; and (4) that the paragraphs of the complaint which allege a violation of the practice and custom referred to are in contravention of the duty imposed on plaintiff by par. 91, ch. 114 of the statute, and therefore should be stricken.

The motion to strike was overruled and defendant filed its answer, wherein it admits that defendant was operating various lines of steam railroad, but denies that at the time of the accident it was engaged in interstate transportation; admits that it was operating its train in a northerly direction near the grade crossing at Marion, admits that the Illinois Central Railroad Company was a common carrier and that plaintiff was employed by it as an engineer, but denies that either the company or plaintiff was engaged in interstate transportation at the time, and that plaintiff was not subject to the Illinois Workmen’s Compensation Act, admits the allegations relative to the obstructions to view as the grade crossing was approached, and that par. 91, ch. 114 of the statute was in force at the time of the accident; admits the existence of the two stop boards, but denies the alleged custom and practice of coming to a stop at the boards, whistling and proceeding, and the custom and practice of conceding the right of way over the crossing to the train which first left the stop board, and avers that such practice and custom, if in fact they existed, were void because they were in violation of the statute referred to. The answer denies that plaintiff stopped his train and whistled, avers that plaintiff did not ascertain that the way was clear and that he could safely proceed, denies that plaintiff’s train had started up from the stop board before defendant’s train reached its stop board, and that plaintiff’s train could have proceeded in safety, had defendant not failed to observe the alleged practice and custom, and denies that there was any practice and custom, as alleged. The answer also denies that plaintiff was in the exercise of ordinary care, as alleged, and denies each of the specific acts of negligence charged in the amended complaint.

During the' trial plaintiff sought leave to file an additional count, charging wilful and wanton conduct, which was denied. After the jury returned its verdict defendant made its motion to enter judgment in its favor, notwithstanding the verdict. This motion, in addition to general grounds, was based on the theory that the court should have directed a verdict for the defendant as a matter of law, because of the alleged violation of the statute mentioned, and it was evidently upon this ground that the motion was granted and judgment against plaintiff was rendered by the court.

Plaintiff’s suit arises out of a right angle collision occurring between two railroad trains at a grade crossing in the city of Marion, Illinois. At the time of the accident plaintiff had had 38 years of railroad experience, 32 years of which were spent as an engineer on the Illinois Central Railroad. For approximately six years he had been assigned to this particular run. The accident occurred at 8:05 a. m. At the time of the accident he was operating a locomotive, hauling twenty-five freight and two passenger cars in an easterly direction between Carbondale, Illinois, and Paducah, Kentucky, over the right of way of the Illinois Central. The usual time of that train for arriving at the crossing in question was 7:12 a. m., but it had been delayed because of the unusually heavy load. Plaintiff says that he brought his train to a stop at the stop board along the right of way, which is about 15 or 20 feet west of Court street, a hard surface State highway running through Marion, whistled twice as a signal that he was going to proceed over the crossing, and started up slowly. The single track railroad operated by defendant extends in a northerly and southerly direction through Marion, and crosses the I. C. track practically at right angles. A stop board was also located along this track, 221 feet from the crossing. There was no tower, watchman or automatic signal in operation to regulate traffic over the crossing of these two railroads. View from the I. C. track of the C. & E. I. track south of the crossing was obscured by a number of buildings and tanks, located in the southwest quadrant of the intersection, and similarly the view to the west of the train crews on the north bound C. & E. I. trains was so obscured. These obstructions consisted of a building 25 feet in width, 90 feet east and about 64 feet south of the stop board on the Illinois Central, and two upright and then two horizontal oil tanks, with narrow spaces between them, just east of this building. The last of these tanks is located 90 feet west of the C. & E. I. track, and for all practical purposes the buildings, tanks and trees totally obstruct any vision to the south, or right, until the observer reaches a point 90 feet from the crossing. At a point 250 feet south of the crossing*, which is approximately at the stop board along the C. & E. I., the view of the I. C. track to the west of the crossing is limited to practically the east end of the oil tank, which is 90 feet from the C. & E. I. track, and anything to the west of .there would have been invisible to the crew of the C. & E. I. train.

While plaintiff was proceeding* eastward, a north bound train on the C. & E. I., consisting* of an engine and two passenger coaches, pulled into the station at Marion, approximately 1100 feet south of the crossing, where it stopped for 30 or 40 seconds, and then proceeded north. This train was being operated by an engineer and fireman. Plaintiff’s counsel refer to them as ‘ ‘ emergency men, ’ ’ and contend that the train which they were operating was driven up to the crossing blindly, without any lookout whatever being kept for trains approaching from the west. Hatfield, the fireman, had been in the employ of the C. & E. I. for 26 years, and although that was the first trip he had made for some time with the engineer, Deffenbaugh, he had made a trip on that particular run a day or two before, and on the night preceding he and the engineer had passed south along this track. He had also made two trips over the track in question about a week before, and understood the situation at this crossing*. Deffenbaugh, the engineer, had been in the employ of the C. & E. I. as an engineer for 29 years. It appears from the evidence that the fireman, who was on the left or west side of the train was the only member of the engine crew who could have seen the approaching* train. He made an observation when the engine was about 35 feet past the stop sign, reported, “all clear on my side, nobody in sight,” and g*ot down from his seat and commenced to shovel coal into the firebox. He did not see the approaching* train until the collision. The engineer claimed that he did not know the fireman’s view was so obstructed that he could not see more than 80' or 90 feet up the I. C. track to the west at the time he made his observation, and he himself could not see to the west of the crossing from his seat as engineer, because he was on the east or right side of the cab, and his view was obstructed by the boiler. The engineer likewise did not see plaintiff’s train before the crash.

Plaintiff testified that as he approached the crossing after observing that there was no train between the stop board and the crossing, he looked forward momentarily and then looked south again, at which time he first saw defendant’s engine about 10 or 20 feet north of the stop sign. He estimated that, at the time he first saw defendant’s engine, the cab of his engine was about 60 to 75 feet from the crossing ; his position in the cab was about 35 feet from the pilot, which would have placed the front of his engine about 25 to 40 feet from the crossing. He immediately shut off his throttle, applied the emergency brakes and caused the train to slow down. Plaintiff’s engine, which according to the evidence weighed approximately 140 tons, was struck on the right side at the cylinder head, about 10 feet back of the pilot, with such violence that it was derailed and thrown from the track to the north, a distance of from 15 to 18 feet. The right cylinder was caved in. The defendant’s engine was also derailed. The axle on one of the front trucks was broken, one wheel was lying on the ground, the engine truck was demolished, and the crossing was torn up. Plaintiff’s fireman jumped from the tender before the collision. When plaintiff saw the collision was imminent he attempted to get off his engine at the handrail on the left side of the cab, but before he could descend the engine was struck and buckled around, so that plaintiff’s hands or arms were caught between the engine and the tender, and he could not be extricated for over an hour and until the train crew procured an acetylene torch and burned through the draw bar to release him. Both his hands were crushed; his left arm was amputated about five inches above the wrist, and his right hand was operated on in a hospital at Paducah, Ky., so that part of the palm and almost all of the knuckles were removed, leaving only his thumb and little finger. He remained in the hospital for many weeks, the wounds became infected, and at the time of the trial, which was over 2% years after the accident, his wound had not completely healed.

Under the provisions of the Civil Practice Act, the two following issues are presented in the case: (1) whether or not the judgment notwithstanding the verdict is correct, and should be affirmed; and (2) in the event that we should hold that the trial court erred in entering judgment in favor of defendant notwithstanding the verdict, whether or not there was error in the record which would have entitled the defendant to a new trial had judgment not been entered in its favor by the trial court.

As to the first question, it is defendant’s theory of the case that the duty imposed upon plaintiff by the statute of bringing Ms train to a stop within 800 feet of the crossing, and not to proceed until he shall positively ascertain that the way is clear and the train can safely resume its course,” was positive and mandatory; that the provisions of the statute cannot be changed or abrogated by a practice or custom; that plaintiff was guilty of negligence in that he violated the statute by failing positively to ascertain, as he was required to do, that the way was clear and that he could safely proceed before going upon the crossing; and that his negligence in this regard proximately contributed to cause the injuries complained of, so as to preclude a recovery. It is argued that a statute commanding an act to be done creates an absolute duty to perform such act, and a violation of the statute resulting in injury constitutes negligence per se. Considerable space is devoted by counsel on both sides to the citation of authorities and argument relating to the question whether violation of a statute constitutes negligence per se. It would be impossible within the space limitations of tMs opinion to review all these cases, but from a careful reading and examination of the authorities we are satisfied that, under the rule enunciated in recent decisions in this State, violation of a law at the time of an accident merely constitutes evidence of negligence; there always remains the question of fact to be determined by the court or jury whether the" illegal act is the proximate cause of the injury; the mere fact, if it be a fact, that a party has violated the law at the time he was injured will not bar his recovery unless the unlawful act in some way proximately contributed to the accident in which he was injured. It was so held in Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 395. In that case an action was brought by the foreman of a switching crew of a steam railroad company against an electric railway company to recover damages for injuries sustained in a right angle collision between trains operated by the two companies. Jeneary, the plaintiff, was riding on the front end of the first car, and was directing the operation of the train. As the train approached the grade crossing he looked north and south, but did not stop his train. The contention was made by defendant that Jeneary could not recover because of his failure to comply with the very statute in question in this proceeding, in that he “did not cause his train to stop within 800 feet of the crossing,” etc., but the court held that there was evidence in the record which would have justified the jury in finding that the failure to stop was not the proximate cause of the accident and that the question was therefore properly submitted to the jury, citing Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154.

In Lerette v. Director Generali, 306 Ill. 348, a suit was brought to recover for injuries sustained when plaintiff attempted to crawl between the cars of a train which was blocking the public highway. In so doing he had violated the statute. The defendant had also violated the statute by blocking- the crossing- for more than 10 minutes and by starting* its train without ringing a bell. The contention was made that plaintiff’s violation of the statute constituted negligence per se, but the court said (pp. 352, 353): “The mere fact that plaintiff was violating* the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. (Star Brewery Co. v. Hauck, 222 Ill. 348; Graham v. Hagmann, 270 Ill. 252; Ensley Mercantile Co. v. Otwell, 142 Ala. 575; Munroe v. Hartford Street Railway Co., 76 Conn. 201.) In determining whether the unlawful conduct of plaintiff will bar his rig*ht to recover there must be kept in mind the distinctipn between that which directly and proximately produces or helps to produce the result as an efficient cause and that which is a necessary condition or attendant circumstance of it. If the illegal act is a mere condition which made it possible for the accident to occur but is in itself no part of the accident it will not bar recovery.”

In the recent case of Streeter v. Humrichouse, 357 Ill. 234, 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, his employer. In discussing the question under consideration, and after citing and quoting* from various decisions, the court said (p. 244): “In the case before us McG-ann’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.”

Plaintiff cites the following cases: Price v. Illinois Bell Tel. Co., 259 Ill. App. 581; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Commonwealth Electric Co. v. Rose, 214 Ill. 545; Kenyon v. Chicago C. Ry. Co., 235 Ill. 406; Hoobler v. Voelpel, 246 Ill. App. 69. From these and many others cited we take it to be the established rule in this State that violation of a statute is not negligence per se, but a question of fact for the jury.

The principal authority relied on by defendant is Frese v. Chicago, B. & Q. R. Co., 290 Mo. 501; 263 U. S. 1. That cause went to the United States Supreme Court by certiorari to the Supreme Court of Missouri, which had decided against plaintiff, and was an action founded upon the Federal Employers’ Liability Act. Recovery was denied because of the provisions of the Illinois statute in question. The court pointed out that the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course, and said that whatever may have been the practice, he could not escape his duty, and that “it would be a perversion of the Employers’ Liability act (. . .) to hold that he could recover for an injury primarily due to his failure to act as required, on the ground that possibly the injury might have been prevented if his subordinate had done more.” In the Frese case the Missouri court held that the custom relied on by plaintiff was not alleged in the pleadings, and that the evidence did not tend to show that the defendant had notice of the existence of the custom; also that the custom relied on was nothing more than a private arrangement between the fireman and the deceased engineer upon the particular engine involved. Moreover, it appears to be the rule in this State that in the construction of a statute, the final authority is the Supreme Court of Illinois, unless a federal question is raised, and none is involved in the case at bar. In Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, the court, in discussing the law to be invoked in the construction of a State statute, said (pp. 205-207): “The decisions of that court [U. S. Supreme Court] are always entitled to great consideration and this court has never grudgingly yielded to them the deference which is due to so distinguished a tribunal, still, when its decisions conflict with those of this court upon questions over which this court has complete and final jurisdiction, it is our plain duty, under the láw, to adhere to our own decisions. ... In respect to questions of general law the State courts are required to follow the decisions of the highest court of the State and are not bound by the authority of the Supreme Court of the United States, and particularly is this true where it would be necessary to overrule previous State decisions in order to conform to the views of the Federal court. (Black on Law of Judicial Precedents, 359, and cases there cited.)”

Under defendant’s theory of the case, which was concurred in by the trial court in entering judgment notwithstanding the verdict, a party might be deprived of all remedy even though he were in the exercise of the highest degree of care and the defendant were grossly negligent. The literal interpretation of the statute for which defendant contends would in this case render both engineers equally responsible for the collision, since they must necessarily be held to have violated the statute in failing to positively ascertain that the way was clear before proceeding over the crossing. This would lead to absurd consequences. It would mean that an engineer must, under any and all circumstances, operate his train over an intersecting railroad without accident or mishap, regardless of how reckless the engineer of another train approaching the crossing* might be, and the very fact that a collision occurred, apart from any question of negligence or proximate cause, would conclusively demonstrate a violation of the statute and bar plaintiff’s right to recover; it would render the operator of a train an insurer against all accidents, regardless of surrounding facts and circumstances, and would eliminate from the consideration of the jury all questions of fact as to whether he was free from negligence and whether the accident was due solely to the negligence of the operator of the other train involved in the collision. This is not the law, as we understand it, and the decisions hereinbefore cited and discussed, and others contained in plaintiff’s brief, are all to the effect that a violation of a statute is not negligence per se, but a question for the jury.

Defendant argues that a custom cannot be invoked to modify or abrogate a settled rule of law or statute, and that it was error to admit evidence of a custom at variance with or contrary to the statute in question. Plaintiff had pleaded that there was a custom and practice on both railroads for the crews of trains approaching the crossing to stop at the respective signs and whistle before proceeding, and to yield the right of way to the locomotive that first whistled at the stop board. In its motion to strike defendant directed two paragraphs specifically against this part of the complaint on the ground that the custom and practice alleged was “in absolute violation of the duty imposed upon the plaintiff by said par. 91, see. 12, chap. 114, Cahill’s 1933 Revised Statutes.” This motion was overruled, and defendant afterward filed its answer denying the existence of any such custom, alleging that if it existed the custom was in violation of the statute referred to. When the question of proving the custom arose upon the trial, the matter was discussed in chambers and later when interrogatories were propounded to a witness, defendant’s counsel objected on the ground that the custom was contrary to the statute. The court overruled the objection, but subsequently held that the custom could not be proved unless there was a meeting of the minds, that is, an understanding' between the various crews, and thereafter sustained objections to questions about custom for various other reasons, namely, that an engineer is not the person to prove the custom; that you cannot establish a custom by categorical yes or no answers; that the questions propounded allowed the witness to determine the practice and custom, without stating the physical facts; and that it was not shown that the engineer then testifying, who had had 35 years of experience, ever saw more than one C. & E. I. train come up to the crossing. When it became apparent that the court would not permit any further questioning along this line, plaintiff’s counsel made an offer of proof, which the court overruled. We find from the authorities that custom and usage is a fact to be proved as any other fact (17 Corpus Juris, § 88, p. 521.) It may be the proper subject for expert testimony. The witnesses tendered by plaintiff were all men skilled in their calling and peculiarly qualified by reason of their knowledge, skill and experience to prove the custom. The principal reason assigned by the court for overruling plaintiff’s offer, and for sustaining objections to the questions asked in attempting to prove the practice and custom, was that there must be a meeting of the minds or an understanding between the various crews. The law does not exact this requirement, however, for manifestly an understanding may be shown by what was done in pursuance of it.

In North Chicago St. R. Co. v. Irwin, 202 Ill. 345, decedent ivas struck by a street car using a track customarily used by cars traveling in the opposite direction. The court held that the proof of such custom was proper, and said (p. 347): “The existence of this custom entered into the consideration of the question whether the motorman was in the exercise of ordinary care in propelling the car northwards on the west track at such a rate of speed as twelve or fifteen miles per hour, and also bore upon the question of the carefulness or negligence of the deceased in leaving the space between the tracks and going upon the west track in order to he out of danger from a car moving northward.”

In Chicago City Ry. Co. v. Lowitz, 218 Ill. 24, it was held competent to prove a custom and practice of stopping' street cars at a certain point, the court saying (p. 28): “We think the rule was admissible to show a practice and custom of stopping the cars at the point of injury, and as tending, with the other evidence in the case, to show negligence in the management of the car. . . . Such a practice and custom, known and relied upon by appellant and its employes and by the public, would necessarily enter into and become a part of the res gestae of the injury complained of.”

In St. Louis National Stock Yards v. Godfrey, 198 Ill. 288, an engineer sought to recover for injuries sustained in a right angle collision between trains. The court approved evidence showing that it was customary to send a flagman out to protect the crossing, that it was not done in that case, and that the failure so to do tended to establish negligence.

In Chicago City Ry. Co. v. Sugar, 117 Ill. App. 578, a passenger brought action against the traction company to recover for injuries sustained in a right angle collision between two street cars at an intersection. Plaintiff offered a rule of the company relative to the right of way of cars over the crossing, and in discussing the admissibility of this evidence, the court said (pp. 581, 582):

“It seems to us clear that if a custom and practice existed regulating the handling of cars at the crossing, it would have a direct bearing upon the question of the negligence of appellant. While it could not be regarded that a rule or custom giving appellant a superior right of way over the crossing, as claimed by it, would have the effect of absolute exoneration from liability for negligence, it is a proper element for consideration by the jury in determining whether one or both of the defendants were exercising the care for appellee’s safety required of them respectively by law in the operations of the cars before and at the time of the collision. Such a practice and custom, known and relied upon by the defendants and their employees, would necessarily enter into and become a part of the res gestae of the collision and would form one of the circumstances surrounding the accident, just as any other fact or circumstance which existed then would be part of the transaction. . . . That was one of the questions to be passed upon by the jury, and appellant had the right to have the jury enlightened by all the facts and circumstances surrounding the accident which might in any legitimate way affect its judgment.”

In Doering v. Peoria & Pekin Union Ry. Co., 196 Ill. App. 129, a rule was proved requiring cars to be stopped at a certain point, but proof was also made that it was the custom to disregard the rule and stop the cars at another point instead. The court said (pp. 134, 135):

“The question what the rule was and what the custom was at that place bears both upon the allegation that appellant was guilty of negligence in the manner in which this car was pushed across Fulton street, and also on the question whether appellant was in the exercise of due care for his own safety. ... It has been frequently recognized by the courts of this State that the rule and custom prevailing is to be considered in determining whether an employee is negligent. [Citing cases.] These cases also show that it is a question of fact for the jury whether in view of the existing rule and custom, the injured servant was in the exercise of due care for his own safety.” To similar effect see North Chicago St. R. Co. v. Kaspers, 186 Ill. 246; Campbell v. Chicago R. I. & P. Ry. Co., 243 Ill. 620; Fowler v. Chicago Rys. Co., 285 Ill. 196.

We do not understand it to be plaintiff’s contention that a custom or practice can prevail against a positive rule of law or statute, but he contends that proof of a custom and practice regulating the handling of trains at a crossing has a direct bearing on the question of negligence and may be introduced for that purpose, and the cases so hold. Whether the court entered judgment notwithstanding the verdict under the impression that there was no evidence to establish the custom, does not appear in the record; nevertheless, there was enough evidence in the record from which the jury might have found that defendant negligently violated the custom, and that plaintiff had observed it in proceeding across the intersection. Holding as we do that the violation of a statute does not constitute negligence per se, and that evidence of a practice or custom may properly be shown as bearing upon the question of negligence, we think it was error for the trial court to enter judgment notwithstanding the verdict, unless it should appear, as defendant’s counsel contend, that wholly apart from the violation of the statute plaintiff was guilty of such contributory negligence as would preclude a recovery.

This leads to a consideration of the second question presented by this appeal, namely, whether there was such error in the case as would have entitled defendant to a new trial had judgment not been entered in its favor by the trial court. Sec. 68 of the Civil Practice Act (Ch. 110, ¶ 196, sec. 68, subsec. 3b, Cahill’s Ill. St. 1933) provides in effect that where the reviewing court shall be of the opinion that the trial court committed error in entering judgment notwithstanding the verdict, such court shall reverse the order unless it shall appear that there was error in the case that would have entitled a party, in whose favor the judgment notwithstanding the verdict had been entered, to a new trial if such judgment had not been entered by the trial court. In pursuance of this statute defendant urges various grounds for a retrial.

It is first contended that the court erred in refusing to permit defendant to cross-examine plaintiff and his witness, Beeves, for the purpose of impeachment, as to their testimony before the joint investigation by the two railroads involved in the accident, as to the cause of the collision in question. This- investigation was attended by two representatives of the Interstate Commerce Commission. The impeaching questions sought to be propounded to the witnesses related to the distance from the intersection at which plaintiff first learned of the approaching C. & E. I. train. Upon the trial of this cause he estimated the distance at about 60 to 75. feet from the crossing, and defendant sought to show that at the hearing of the interstate commerce investigation he had testified that he saw some smoke across the oil tanks at about 115 or 120 feet from the intersection. The record clearly discloses that plaintiff’s view to the south was cut off by the oil tanks and building until he reached a point approximately 90 feet from the crossing. Whether he saw smoke across the oil tanks before reaching a point where the C. & E. I. train was visible constitutes a different question, and would not afford the basis for impeachment. The interstate commerce statute (U. S. C. A., Title 45, §§ 40, 41) provides:

“40. Investigation by commission of accidents; cooperation with State commissions; reports of investigations. The Interstate Commerce Commission shall have authority to investigate all collisions, derail-meats, or other accidents resulting in serious injury to person or to the property of a railroad occurring on the line of any common carrier engaged in interstate or foreign commerce by railroad. The commission, or any impartial investigator thereunto authorized by said commission, shall have authority to investigate such collisions, derailments, or other accidents aforesaid, and all the attending facts, conditions, and circumstances, and for that purpose may subpoena witnesses, administer oaths, take testimony, and require the production of books, papers, orders, memoranda, exhibits, and other evidence, and shall be provided by said carriers with all reasonable facilities: Provided, That when such accident is investigated by a commission of the State in which it occurred, the Interstate Commerce Commission shall, if convenient, make any investigation it may have previously determined upon, at the same time as, and in connection with, the State commission investigation. Said commission shall, when it deems it to the public interest, make reports of such investigations, stating the cause of accident, together with such recommendations as it deems proper. Such reports shall be made public in such manner as the commission deems proper. (May 6, 1910, c. 208, § 3, 36 Stat. 351.)
“41. Reports not evidence in suits for damages. Neither said report nor any'report of said investigation nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said report or investigation. (May 6, 1910, c. 208, §4, 36 Stat. 351.)”

Plaintiff’s counsel argue that under this provision the testimony taken at the interstate commerce investigation was not admissible, and cite Louisville & N. R. Co. v. Grant, 234 Ky. 276, wherein the purpose of the act requiring a monthly report of accidents to be submitted to the Interstate Commerce Commission was said to be “to afford the Commission an opportunity to investigate such accidents, and no doubt the admission of the report as evidence was prohibited in order to encourage prompt and full reports of all accidents resulting in injury to persons,” and that the investigation authorized was not in behalf of the railroad or its employees, but solely in the interest of the public at large with a view to promoting safety in railroad operations.

It is next urged that the verdict of the jury is ag’ainst the manifest weight of the evidence. Although there are conflicts in the evidence as to whether the respective train crews stopped at their posts, and the respective speeds at which the two trains approached the crossing, there is abundant testimony from which the jury might well have found that plaintiff exercised due care and that defendant’s engineer and fireman were negligent in failing to maintain a proper lookout for trains approaching from the west. It was the function of the jury, under the instructions of the court, to determine from the evidence the facts in the case and the proximate cause of the injury, and after a careful examination of the record we think that the verdict is amply sustained by the evidence.

Defendant next complains of Instruction No. 2 tendered by plaintiff and given by the court as follows: “If you believe from a preponderance of the evidence under the instructions of the court that the plaintiff has proved the allegations of his complaint, as above set forth, set out herein, then you should find the defendant guilty.” This instruction is criticized because it refers the jury to the pleadings without telling it what the pleadings contain. We find, however, that defendant offered an instruction given by the court which is subject to substantially the same criticism, and the law is well settled that “a party has no right to complain of an error in an instruction, when, a like error appears in an instruction given at its own request.” (West Chicago St. R. Co. v. Buckley, 200 Ill. 260. Also to the same effect are Lerette v. Director General, 306 Ill. 348, 354; Kelly v. Chicago City Ry. Co., 283 Ill. 640, 649; Smith v. Kewanee Light & Power Co., 196 Ill. App. 118, 126, 127.)

Instructions Nos. 3 and 4, given at plaintiff’s request, are criticized because they charge the jury that plaintiff was required to exercise only ordinary care, whereas the statute in question imposed upon plaintiff the duty of positively ascertaining that the way was clear before he drove his engine over the crossing. We have already discussed this phase of the case, and in view of our conclusion it would follow that these instructions are not subject to the criticism for which defendant contends.

The remaining ground for reversal is that the verdict for $80,000 is excessive, and defendant argues that it was influenced by the conduct of plaintiff in weeping while on the stand, giving rise to prejudice and passion on the part of the jury. It is not contended that plaintiff feigned these manifestations of emotion; he broke down and wept when questioned regarding his injuries, the treatment that he had received at the hospital, and the pain and suffering that followed the accident. Our courts have held that emotional demonstrations do not necessarily call for the granting of a new trial, but that “it is for the trial judge to determine whether the witnesses were giving vent to their natural feelings or whether they were attempting to influence the jury.” (Kempinski v. Tuthill Bldg. Material Co., 255 Ill. App. 375, 388.) It seems quite apparent from an examination of the record that plaintiff was giving vent to his natural feelings, and that there was no attempt on his part to influence the jury.

We do feel, however, that the verdict is excessive. Plaintiff was 55 years of age when this accident occurred, and had a reasonable expectancy of 15 years of service. His average earnings prior to the accident were around $3,000 a year. He had two operations following the accident. Infection set in and he must have suffered exceedingly during’ the long period of time he was confined to the hospital and thereafter and even upon the trial, which was 2% years after the accident, the wounds had not entirely healed. In view of all the circumstances we think a verdict of $60,000 would more nearly represent plaintiff’s damages. Therefore, the judgment of the superior court is reversed and the cause is remanded with directions that judgment be entered against defendant for $60,000 (sec. 68, Civil Practice Act), providing plaintiff shall consent to, and file, a remittitur in the sum of $20,000 in this court within 30 days; otherwise, the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded with directions that judgment be entered against defendant for $60,000 providing plaintiff shall file a remittitur of $20,000 in this court within 30 days; otherwise reversed and remanded for a new trial.

Scanlan and Sullivan, JJ., concur.


text:
    Roman Frydrychowicz, Appellant, v. Peter L. Evans et al., Appellees.
    Gen. No. 39,596.

      Opinion filed May 3, 1938.
    G. A. Buresh, of Chicago, for appellant.
    Sidney W. Mandel and Albert Langeluttig, both of Chicago, for certain appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Roman Frydrychowicz, plaintiff, owner and holder of one bond in the sum of $500 secured by trust deed, had leave to file a bill of review in the superior court wherein he sought to reverse a decree of foreclosure entered July 5, 1934, in the consolidated foreclosure causes entitled Peter L. Evans, as successor trustee, et al. v. Philip Ram et al., General No. 565,559, and Morris Brooks v. Philip Ram et al., General No. 530,032, for error apparent upon the face of the decree. Certain defendants interposed a motion to dismiss the bill, setting forth thirteen specific grounds therefor. After considering the pleadings, the chancellor dismissed the bill of review for want of equity, and plaintiff has prosecuted this appeal to reverse the order thus entered.

It appears from the pleadings that February 5,1924, Philip Bam and Bose Bam became indebted in the sum of $26,000, and executed and delivered their 52 bonds of $500 each with interest, secured by trust deed due in five years. On October 31, 1924, they sold the property, and by mesne conveyances defendants, Marek Kraus and wife, and Isidore Brown and wife, became the owners thereof. On February 5, 1929, the owners and the trustee entered into an extension agreement in writing, whereby payment of these bonds was extended to February 5> 1934, the interest was reduced to 6 per cent, interest coupons were executed and delivered representing the interest for the extended period, and the owners promised to pay the principal of the bonds. The interest for the extended period was paid to and including February 5, 1931, when a default occurred in interest and in the payment of taxes for 1928. Thereupon various bondholders brought two separate suits to foreclose the trust deed, which were consolidated under General No. 565,559. Philip and Bose Bam, as the makers of the paper, filed an answer claiming that they had no knowledge of the extension and should be released from personal liability upon the bonds and the trust deed, and the Krauses and Browns in their answer alleged that the extension agreement was void and that they were not personally liable for the payment of the bonds or interest thereon. After the petition for leave to file the bill of review was presented to the court, but before the bill was filed, the property was sold under the decree, leaving a deficiency of approximately $30,000.

The bill of review challenges the decree for errors apparent upon the face of the decree in the following particulars: It is alleged that in one part of the decree the court found that Philip and Rose Ram were the mortgagors and were originally liable on the bonds and trust deed; that they sold the property by mesne conveyances to the Krauses and Browns, who became grantees thereof; that the grantees and bondholders executed a valid and binding extension of the mortgage indebtedness, supported by a good consideration, but that the mortgagors did not agree or consent thereto, and therefore the defendants, Philip and Rose Ram, were discharged from personal liability on the mortgage indebtedness; that the court in another part of the decree concluded that the extension agreement was not a valid or binding extension, that there was no consideration therefor, and that the grantees did not become bound and are not personally liable for the mortgage indebtedness or any part thereof. In other words, it is argued that the court, upon the same evidence and findings of fact, concludes that the extension agreement is valid and discharges the original mortgagors, and at the same time finds that the extension agreement is invalid and does not bind the makers thereof. Because of this inconsistency in the decree plaintiff contends that it should be reviewed and reversed for error apparent upon the face of the decree.

A considerable portion of the briefs for the respective parties is devoted to argument and discussion of authorities relating to the question whether the mortgagors were or were not released from personal liability for payment of the deficiency, depending upon the validity of the extension agreement; whether there was a valid consideration therefor; whether all the necessary pleadings in the consolidated causes in which the decree was entered are embodied in the bill of review; whether the master’s report should have been incorporated as part of the pleadings; whether all necessary parties were made defendants to the bill of review; and whether it was filed within apt time. As we view this proceeding, however, the salient question to be determined is whether or not a bill of review for error apparent upon the face of the record will lie to review and reverse a decree which is challenged solely because of the alleged foregoing inconsistencies appearing therein. This point is not considered by plaintiff in his brief but is argued rather fully in the brief filed by defendants, who contend that plaintiff seeks to make his bill of review take the place of an appeal or writ of error, which they say cannot be accomplished under the well established law of this State.

In his reply brief plaintiff’s counsel argues that upon a bill of review for errors apparent upon the face of the decree the court will reverse or revise its own decree for an erroneous application of the law to the facts as found in a decree whenever a court of appeals would do so for the same reason, and relies upon several cited decisions. The first of these is Evans v. Clement, 14 Ill. 206, wherein it was held that upon a bill of review for errors of law the court will not reconsider the evidence but will inquire whether the law was properly applied to the facts which the record shows were found by the court, and will revise or reverse its own decree for an erroneous application of the law to the facts found, whenever a court of appeals would do so for the same reason. However, the liberality indicated by the court, at that time does not appear in the later decisions in this State.

In Garrett v. Moss, 22 Ill. 363, cited by plaintiff, it was conceded by the court that an acknowledgment which had been held to be valid in a prior decree was actually invalid; nevertheless, the court held that this error could not be reached by a bill of review for error apparent upon the face of the record.

In another decision cited by plaintiff, Vyverberg v. Vyverberg, 310 Ill. 599, a bill of review had been sustained by the trial court but was reversed by the Supreme Court and remanded with directions to dismiss the bill. In that case a bill of review was based upon error apparent on the face of the record. Among other errors, it was alleged in the bill of review that the decree was erroneous because it found that one of the parties was adjudged insane December 15, 1905, which was less than a year before the filing of the petition; also because it provided that one Ludwig Schulz should not be required to see to the application of the purchase price paid for the sale of the property in question, because it provided for the approval of the bond by the clerk, and required the payment of the sum of $200 from time to time within five years, without providing definitely at what times and in what amounts the sums should be paid. The trial court found that the decree should be reversed for these alleged errors, and also for the reason that the homestead right of the wife in the estate of her husband was a vested right, valued at $1,000, and in the absence of her competency and consent to relinquish it, it could not be less than $1,000. In reversing and remanding the decree pursuant to the hearing* of the bill of review, the Supreme Court said (pp. 603, 604):

“The errors alleged and those found by the court are all merely questions of procedure and not jurisdictional questions. They do not affect the right of the court to hear and decide, but only go to the question of the correctness of the court’s decision. . . . The questions open for examination are such questions as arise on the pleadings, proceedings and decree. (Palenske v. Palenske, 281 Ill. 574.) The question is not whether the facts found in the decree under review are in accordance with the evidence, but whether the court correctly applied the law to the facts found by it. If the findings of the court upon matters of fact are not supported by the evidence, the remedy is by appeal or writ of error and not by bill of review. (Ebert v. Gerding, 116 Ill. 216.) An attack upon a decree by a bill of review is collateral so far as a purchaser who was not a party to the suit is concerned, and his title will be protected if the court had jurisdiction of the parties and the subject matter. (Hedges v. Mace, 72 Ill. 472; Teel v. Dunnihoo, 221 id. 471.) ”

In Regner v. Hoover, 318 Ill. 169, a decree dismissing a bill of review for error apparent on the face of the record was sustained by the Supreme Court under the following circumstances: A decree pro confesso had been entered against Viola M. Hoover-Regner, in a cause in which Merritt O. Hoover, her father, was complainant. The error alleged in the bill of review was that relief was granted in the decree which was not warranted by the allegations of the bill. The question presented was whether the original cause ought to be opened to trial on its merits, and in discussing this question the court said (pp. 170,171,174):

“A bill of review is in the nature of a writ of error and is brought for error of law apparent on the face of the decree and for the purpose of the review. It includes not only the decree but the pleadings and facts as found in the original cause. (Vyverberg v. Vyverberg, 310 Ill. 599; Palenske v. Palenske, 281 id. 574.) An attack on a decree by a bill of review is collateral. The question is not whether the facts found in the decree under review are in accordance with the pleading and evidence but is one of law. A bill of review cannot be made to function as an appeal or writ of error. (Harrigan v. County of Peoria, 262 Ill. 36.) Bemedy for error in the¡ final decree is by appeal or writ of error, and the error to be reviewed by a bill of review must be more than the result of a mistalcen judgment. The question whether there is an error apparent on the record is one of law, as where an infant has not had his day in court or where the decree provides relief against the provisions of statute law, as a decree directing a legacy to be distributed contrary to the statute of distribution. (Story’s Eq. Pl., sec. 405.) . . .
“Counsel contends that relief in this case should be granted because, it is argued, the pleadings did not justify the decree. It is evident that the court had jurisdiction of the parties and of the subject matter, and where this is so its decree will not be set aside in a proceeding of this character on the allegation that it is not sustained by the pleadings. That is a question which can be revieioed by appeal or writ of error. Errors %vhich present questions of procedure and not jurisdiction, and do not reach the matter of the right of the court to hear and decide a cause, go only to the question of the correctness of the court’s decision, and are not open on a bill of review. (Vyverberg v. Vyverberg, supra.)(Italics ours.)

In the recent case of Knaus v. Chicago Title & Trust Co., 365 Ill. 588, opinion filed February 12, 1937, and rehearing denied April 8, 1937, the court reiterated the rule that a bill of review cannot serve as a writ of error or as an appeal. The court said that although the complaint in that case was designated as one to “quiet title, cancel instruments and accounting,” it was apparent from the allegations of the bill that its sole object was to obtain a review of the earlier foreclosure proceedings between the same parties and involving the same subject matter, and that it was in fact a bill in the nature of a bill of review; that the complaint, if it were to be treated as one to impeach a decree for error apparent upon the face of the record, was nevertheless insufficient; and after citing Regner v. Hoover, 318 Ill. 169, said that a hill of review cannot be made to function as an appeal or writ of error. “The error to be reviewed by a bill of review must be more than a mistake in judgment.”

In Weinberg v. Larson, 275 Ill. App. 475, we held, upon the authority of Regner v. Hoover, 318 Ill. 169, that a bill of review cannot serve to function as a writ of error or appeal to a higher court.

In Scotten v. Littlefield, 235 U. S. 407, it was held that although the decision of the district court which determined the case sought to be reviewed is alleged to have been decided upon principles inconsistent with a subsequent decision by the Supreme Court of the United States, the subsequent decision will not lay the foundation for a bill of review for errors of law apparent.

The error alleged to be apparent on the record in the instant case involved legal principles. relating to the validity of the extension agreement and its effect upon the right of Frydrychowicz to collect on the bond which he holds from the signers of the agreement. Judging by the earnestness with which counsel on both sides argue the question of law affecting their respective contentions that the agreement was valid or invalid, it would seem at best to be a debatable question, going only to the correctness of the court’s decision as to whether the signers of the agreement are or are not liable. That question involves an application of the law to the provisions of the agreement, a determination as to its mutuality, whether it was supported by a valid consideration, and its legal effect on the rights and liabilities of the parties involved, but a bill of review cannot serve to function as a writ of error or an appeal for the purpose of reviewing the correctness of the court’s decision as to the legal principles involved.

We are of the opinion that the chancellor properly sustained defendants’ motion to strike plaintiff’s complaint and committed no error in entering the decree dismissing it for want of equity, and the judgment of the superior court in so doing is therefore affirmed.

Judgment affirmed.

Scanlan and Sullivan, JJ,, concur.