text:
    Herbert J. C. Henderson, Appellant, v. Hattie Distel Henderson, Appellee.
    Gen. No. 39,052.
    Opinion filed May 19, 1937.

      Newby & Burditt, of Chicago, for appellant.
    Taylor, Miller, Busch & Boyden, of Chicago, for appellee; Orville J. Taylor and Bernard K. Shapiro, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff appeals from a decree entered by the court dismissing the bill of complaint for want of equity upon motion of the defendant.

This action arose upon a contract entered into between the plaintiff and the defendant, which is in words as follows:

“Memorandum of Separation and Property Settlement Agreement made and entered into this 21st day of September, A. D. 1935, in the City of Chicago, County of Cook, State of Illinois, by and between Hattie Distel Henderson, party of the first part, hereinafter referred to as Wife, and Herbert J. C. Henderson, party of the second part, hereinafter referred to as Husband, both being residents of the city and state aforesaid, in manner following:
“Statement of Facts Agreed Upon by and Between the Parties.
“The parties to this agreement were married in the City of Windsor, Province of Ontario, in the year 1911, and have lived and cohabited together as husband and wife continuously since the date of said marriage until, to-wit: the month of August, 1935. That for a number of years after said marriage said parties cohabited together as husband and wife in the city of Detroit, Wayne County, state of Michigan; subsequently in Milwaukee, Wisconsin; thereafter again in Detroit, Michigan, for a period of years; that said parties have lived and cohabited together in the city of Chicago as husband and wife since March, 1934.
“That no children have been born of said marriage.
“That for several years immediately prior to March, 1934, said husband was a vice president of Fisher Body Corporation of Detroit in charge of advertising. That prior thereto said husband was sales manager of the _ Lincoln division of Ford Motor Company. That since March, 1934, and at the present said husband has been and is vice president of The American Weekly, a Hearst publication, and is employed at a salary of Fifty Thousand Dollars ($50,000.00) per year, less two cuts of ten per cent (10%) each which were made because of depressed business conditions.
“That since, to-wit: the fall of 1934 the marital relations between the parties have become gradually more and more strained and incompatible, said wife claiming that said husband’s relations with another woman have been in violation of said husband’s marriage vows and that said husband has been guilty of cruelty within the meaning of the Illinois statutes de-. fining the same. That said husband, claiming that said wife, by the manner in which she conducts herself with reference to gossiping about said husband and with reference to her indisposition to cooperate with said husband in a social way to further the interests of said husband, has made a continuation of said marital relation impossible.
“That the aforesaid claims by the wife are denied by the said husband and the aforesaid claims made by said husband are denied by said wife.
“That since, to-wit: March, 1934, the parties have been residing at 1420 Lake Shore Drive in the city of Chicago. That the cost of the furniture provided by the husband for the apartment occupied by the parties at said address amounts to approximately Thirty Five Thousand Dollars ($35,000.00) and that the rent of said apartment amounts to the sum of Three Hundred Dollars ($300.00) per month.
1 That said husband packed his personal belongings toward the end of August, 1935, and departed permanently from said apartment and took up an apartment of his own at another address in the city of Chicago. That said husband notified said wife upon said departure that he was then leaving said wife permanently.
“That said wife consulted with attorneys and was advised that she had good and sufficient grounds for divorce under the laws of the State of Illinois; that said wife was about to commence a divorce suit against said husband, having given directions to attorneys to institute the same, but before said suit was commenced a property settlement and separation was agreed upon between the parties as hereinafter set forth.
“That said wife, at her own election, without consideration of any kind, and of her own volition, has postponed the institution of said divorce action for such time as she sees fit, without restriction, and without waiving any of the grounds for divorce claimed by her, which she now hereby expressly reserves.
“That said husband in entering into this agreement has not waived any claimed grounds of divorce asserted by him and expressly reserves the same without restriction or limitation.
“That the irreconcilable differences which have arisen between the parties render it impossible for them to hereafter live together as husband and wife.
“The parties agree that it shall be lawful for the wife at all times hereafter to live separate and apart from the said husband, free from his marital control and authority as if she were sole and unmarried, and to reside from time to time at such place or places as she may elect without any interference, domination, or restriction whatever on the part of the said husband.
“It is agreed that neither of said parties shall molest the other in their daily living in their respective spheres of life, nor compel or endeavor to compel the other to cohabit or dwell with him or her by any legal proceedings for restitution of conjugal rights.
“The husband makes the following provisions for the support of the wife: the husband gives, grants, bargains, sells and assigns all of his right, title, and interest in and to the personal property of every name and nature located in the. apartment heretofore occupied by the parties at 1420 Lake Shore Drive, in said city, which property includes all furniture and furnishings in said apartment.
“On or before September 30,1935, said husband will deliver to said wife the sum of One Thousand Dollars ($1,000.00) for her personal bank account. Said husband will pay said wife the sum of Six Hundred Dollars ($600) per month for the months of September, October, November and December, 1935. The September payment of six Hundred Dollars ($600) will be made upon the execution of this instrument and like payments of Six Hundred Dollars ($600.00) each month will be made upon the fifteenth day of the months of October, November, and December. Commencing January 1,1936, and for the life of this instrument, which will remain permanently in force and effect, the said husband will pay the said wife the sum of Seven Hundred Fifty Dollars ($750.00) per month on the first day of each and every month from and after and commencing with January 1, 1936.
“In addition to the foregoing provisions the said husband is to deliver to said wife upon the execution of this instrument a life insurance policy in the principal sum of Fifty Thousand Dollars ($50,000.00) upon the life of said husband, with protection in the event of accident or sickness, in which said policy said wife shall be the irrevocable beneficiary; and said husband agrees to pay the premiums on said policy during the life of this agreement, so that in the event of death or disability of said husband, said wife will receive the benefits of said insurance policy. All reserves in said policy shall belong to and accrue to said wife. The premiums to be paid on said policy shall not be deducted from any of the sums above set forth that said husband agrees to pay said wife for her support.
“Said wife agrees to the foregoing provisions for her support and protection.
“The aforesaid arrangement shall become effective as of the date of this instrument.
“Now, therefore, in consideration of the foregoing statement of facts agreed upon by and between the parties, their agreement to live permanently separate and apart from each other, and the provisions for the support and protection of the wife as hereinabove set forth.
“It Is Mutually Agreed by and between the parties that the foregoing statement of facts is hereby declared binding on each and both of them.
“That the parties hereto, having permanently separated, now agree that for the rest of their lives they will live separate and apart from each other, each free from the marital control and authority of the other as if each of the parties were single and unmarried and the parties agree that each of them may reside from time to time in such place or places as they may respectively select without any interference, domination, or restriction whatever on the part of each of the parties with respect to the other.
“It is agreed that neither of said parties shall molest the other in their daily living in their respective spheres of life, nor compel or endeavor to compel the other to cohabit or dwell with him or her by any legal proceedings for restitution of conjugal rights.
“Said husband promises to regularly and faithfully make the payments hereinabove proved to said wife for her support; to procure and deliver said insurance policy as above provided and to pay the premiums therefor regularly; and said husband relinquishes all claims of every name and nature to the personal property in the said apartment heretofore occupied by the parties.
“Said wife accepts the foregoing promises and provisions made by said husband for her support and protection.
“In Witness Whereof the parties hereto have hereunto affixed their hands and seals in the city of Chicago, Cook County, state of Illinois, the day and year first above written.
“Hattie Distel Henderson (L. S.)
“Herbert J. C. Henderson (L. S.) ”

The bill of complaint alleged that there was no consideration for the execution of said instrument for the reason that there was nothing of value passing from the defendant to the plaintiff, and that said instrument is therefore null and void.

It is further alleged that said instrument purports to be an agreement between the plaintiff and the defendant, whereby the plaintiff and the defendant agree that for the rest of their lives they will live separate and apart each from the other, each free from the marital control and authority of the other.

It is also alleged that said instrument purports to be an agreement between the plaintiff and defendant that neither shall molest the other in their daily lives in their respective spheres of life, or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal proceedings for the restitution of conjugal rights; that said purported agreement is contrary to public policy and good morals, and that therefore said purported contract is wholly null and void.

That the defendant is in possession of the apartment formerly occupied by the plaintiff and defendant at 1420 Lake Shore Drive, Chicago, Cook county, Illinois, and of all of the personal property, effects, furniture, and equipment therein situated, purchased originally at a cost in excess of $35,000; that the defendant declined and refused to deliver to the plaintiff or to permit the plaintiff to take therefrom personal effects of the plaintiff consisting, among other things, of a diamond stud, 14-Karat gold pencil, portraits, books and other personal articles, notwithstanding that the plaintiff has paid to or for the account of the defendant, for her separate support and maintenance, since September 21,1935, the sum of $5,594.93.

Count two of plaintiff’s complaint alleges that heretofore, and on or about the 11th day of April, 1936, the defendant herein commenced a personal action, arising upon express contract in the circuit court of the county of Wayne, in the State of Michigan against this plaintiff, and filed in the office of the clerk of said court the affidavit of her agent and attorney, stating in said affidavit, among other things, that he has good reasons to believe and does believe that the parties named have property, money, goods, chattels, credits, and effects in their hands and under their custody and control, belonging to this plaintiff, and that the parties named are indebted to the plaintiff, and that the plaintiff is justly indebted to this defendant upon such contract in the sum of $2,400 over and above all legal set-offs; that she is justly apprehensive of the loss of the same unless a writ of garnishment issue to the aforesaid named parties to make disclosures in writing under oath to be filed with the clerk of the court, touching the liability of these named parties as garnishee of this plaintiff, the principal defendant in said action.

It is further alleged in the complaint that the plaintiff and the defendant are residents of the city of Chicago, county of Cook and State of Illinois, and that said suit was brought by the defendant against the plaintiff in the State of Michigan, for the purpose of harassing and annoying the defendant; that in equity and good conscience the plaintiff should not be compelled to go into the State of Michigan to defend said suit.

Plaintiff prays that a decree may be entered by the court decreeing that the instrument dated September 21, 1935, executed by the plaintiff and the defendant be declared null and void and of no effect, and that the same be canceled, vacated and set aside; and further, that the defendant and her agents be enjoined and restrained from prosecuting the action brought by her against the plaintiff in the circuit court of Wayne county, in the State of Michigan.

It is urged by the plaintiff that the contract is contrary to public policy and therefore is void, and in support of this contention calls the attention of the court to what the Supreme Court said in the case of VanKoten v. VanKoten, 323 Ill. 323, where the court said: “Marriage is a civil contract to which there are three parties, — the husband, the wife and the State, — and it is regarded as a status based upon public necessity and controlled by law for the benefit of society at large. ’ ’

A married woman may initiate an action under the provisions of section 1, ch. 68, IT 22, Cahill’s Ill. Rev. Stats., 1933, which provides:

‘ ‘ That married women who, without their fault, now live or hereafter may live separate and apart from their husbands, may have their remedy in equity, in their own names respectively, against their said husbands in the Circuit Court of the county where the husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart; and in determining the amount to be allowed the court shall have reference to the condition in life of the parties at the place of residence of the husband, and the circumstances of the respective cases; and the court at any time, after service of summons and proper notice to the husband, may make such allowance of temporary alimony, attorney’s fees, and suit money as may appear just and equitable, as in cases of divorce; the court may, however, in its discretion, reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case, and may then" make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case.”

The plaintiff concedes that the foregoing section has been in conformity with the legal obligation imposed upon a husband by his marriage vows, to provide support for his wife during her natural life, and was in addition to the power of the court to grant alimony in a divorce action, as provided for in sections 15 and 18 of the Divorce Act, ch. 40, flf 16 and 19, Cahill’s Ill. Rev. Stats. 1933.

The plaintiff further suggests that under the above mentioned sections, when a husband and wife find themselves unable to live together by reason of the fault of one or the other, they may enter into separation and property settlement agreements.

We agree with what was said by this court in an opinion filed in the case of Boyd v. Boyd, 188 Ill. App. 136, that is:

“Postnuptial contracts between husband and wife adjusting their interests in the property of each other, not made in contemplation of living separate and apart, when understandingly and voluntarily entered into are not contrary to public policy and are valid. But such contracts made in contemplation of the parties living separate and apart from each other, or where the element of separation enters into them, or where the separation is an accomplished fact when the contract is made, and without it in all probability the contract would not have been made, are not looked upon with indulgence by the law, and while in some cases they will be enforced while the parties live in separation, yet in our opinion when the parties effect a reconciliation and resume their marital relations fully and completely, such contract is abrogated by the action of the parties themselves and ceases to have any force or effect, at least in so far as it attempts to relieve the husband from the maintenance and support of his wife and children. ’ ’

And then, again, upon this subject the Supreme Court in the case of Shankland v. Shankland, 301 Ill. 524, said:

“Where it is apparent that such a contract is entered into for the purpose of stimulating or inducing one party or the other to institute divorce proceedings, or that the same is for the purpose of purchasing a decree of separation, or amounts to collusion between the parties to secure a decree of divorce, such a contract ought to be, and is, deemed contrary to public policy and void. ’ ’

The contract in the instant case is material evidence of the intention and aims of the parties, containing as it does the provisions of the separation agreement, and the question arises whether from its contents it can be deemed contrary to public policy. _ '

It appears from the contract signed by the parties that the husband, in August, 1934, removed his personal belongings and departed from the apartment occupied by the plaintiff and the defendant as husband and wife, and at that time the plaintiff informed his wife that he was then leaving her permanently; that by reason of plaintiff’s leaving his wife the contract was entered into to provide for the support of his wife, the defendant.

The plaintiff states that the contract provided for a permanent separation and maintenance, and that the document stripped of all verbiage plainly undermines and destroys the basic principles of marital relationship. Marriage, the union and cohabitation of one man and one woman, so long as they shall both live, is a sacred obligation which, during that time, the parties cannot of their own volition and act dissolve, but which can be dissolved only by authority of the State.

From an examination of this contract, the plaintiff when he declared that he was permanently leaving his wife was guilty by his own words over his signature of a violation of his marriage vows.

The agreement provides for the payment of money for the support of plaintiff’s wife during the life of the agreement, to which provision, and others, the plaintiff points as vicious and contrary to public policy. With this view we cannot agree. The words used in the contract would indicate that by its terms it is limited, and this is further demonstrated by the words providing for the support of the wife and that the same is to be permanent, that is the amount to be paid is fixed for the life of the instrument. These very words were again used in the provision where the plaintiff is to deliver to the defendant wife a $50,000 life insurance policy, naming her as an irrevocable beneficiary, the plaintiff to pay the premiums during the life of this agreement so that in event of plaintiff’s death the wife will receive the benefits of this policy. The statement “life of the agreement” surely does not indicate that it is to endure for the life of the parties, notwithstanding plaintiff’s claim that the document provides for permanent separation. It is indicated that the contract may be at an end either by a reconciliation of the parties, or by such acts of the parties themselves as will terminate this agreement. This means that the door is still open to the parties to resume their marital ties.

The agreement does recite that the parties thereto “agree that for the rest of their lives they will live separate and apart from each other.” We reiterate that it was but the will of the plaintiff which moved the parties to use this language when plaintiff left his wife and stated “that he was leaving (his wife), permanently. ’ ’

In the case of VanKoten v. VanKoten, 323 Ill. 323, the court upon agreements of this character said: “Agreements between husband and wife for a separation are not per se illegal or invalid, but where a husband and wife are living separate and apart, or where the circumstances are such that they can no longer congenially live together with the mutual confidence and implicit faith in each other which the sanctity of the marriage relation demands, or where the relations between them are such as to render the separation necessary for the health or happiness of one or the other of them, an agreement between them, fairly and understandingly entered into, adjusting and settling their mutual rights in each other’s property, may be lawfully made. (Lyons v. Schanbacher, 316 Ill. 569), and a provision in such contract under such circumstances that the husband will pay to the wife a certain sum each month for her support is not void as against public policy. French v. French, 302 Ill. 152.”

In Lyman v. Lyman, 268 Ill. App. 274, the facts are somewhat like the facts in the case at bar. In the Lyman case a separation agreement was entered into on July 14, 1925. At the time of the agreement the husband and wife were living separate and apart. The agreement provided: “ . . . that upon the signing of the agreement neither shall molest or disturb the other, and their manner of living shall not be ground for legal action on the part of either. . . . The separation agreement itself was valid and not contrary to public policy. It was entered into according to its terms after the parties had separated and were living apart. It contained a provision under which the husband was obligated to support the wife and the courts have recognized the right of a husband and wife to enter into an agreement to live separate and apart, provided provision is made for the wife’s support in the agreement. Galusha v. Galusha, 116 N. Y. 635; Hirschthal v. Hirschthal, 134 N. Y. Misc. 479; French v. French, 302 Ill. 152; Patterson v. Patterson, 111 Ill. App. 342; VanKoten v. VanKoten, 323 Ill. 323.”

Then again in the case of Shankland v. Shankland, 301 Ill. 524, we quote from the opinion of the Supreme Court as follows: “In Bishop on Marriage, Divorce and Separation (vol. 1, sec. 1278) it is stated as the law that where a separation has already taken place between husband and wife, or it is in agitation and immediately follows, a provision for the wife’s support, (separate maintenance,) if on an adequate consideration, will be enforceable, but will not if made during cohabitation and no separation ensues. It was held by this court in Ross v. Ross, 69 Ill. 569, that where a husband is living separate and apart from his wife by consent, or if. he acquiesces in her leaving him, he is liable for her necessary support. In Phillips v. Meyers, 82 Ill. 67, it was held that where a husband is under legal obligation to support his wife, an agreement on his part to pay money to a trustee for her use, without any promise or agreement on her part, is founded on a sufficient consideration and binding on him and enforceable at law. ’ ’

Counsel for the plaintiff contends that there was no consideration which moved the parties to execute the instrument in question. Thé courts have held that, in agreements of the kind in this case which provide for the payment of money by the husband in support of his wife, the duty of the husband to support his wife forms sufficient consideration for the execution of a separation agreement. Phillips v. Meyers, 82 Ill. 67; Patterson v. Patterson, 111 Ill. App. 342; Shankland v. Shankland, 301 Ill. 524.

It has been called to the attention of this court by the plaintiff that no relief will be granted to either party to an illegal contract; that the contract entered into to live permanently separate and apart is against public policy. The recent case of Vock v. Vock, 365 Ill. 432, is cited, wherein the Supreme Court in its opinion said: “The contract shows that the parties separated by mutual consent, which implies they were equally at fault. The law is that where the parties are in pari delicto no affirmative relief of any kind will be given to one against the other. The only equitable remedy which they can. obtain is such as is purely defensive. If a contract is illegal affirmative relief against it will not be granted unless the contract remains executory, or unless the parties are considered not in equal fault, as where the law violated is intended for the coercion of the one party and the protection of the other, or where there has been fraud or oppression on the part of the defendant.”

In the instant case we find from the statement of facts contained in the agreement that the plaintiff removed his belongings and departed permanently from the apartment and took an apartment of his own at another address in the city of Chicago, and, as we have stated in this opinion, as a result of that act this agreement was entered into. When plaintiff made the statement he was leaving permanently, he did so for the purpose of bringing about the contract of which he now complains.

It would seem from the facts contained in the contract that the court did not err when it entered its decree dismissing the hill of complaint upon defendant’s motion for want of equity.

It is further contended that the agreement is in violation of the statutes of the State of Illinois (ch. 68, 1J22, Cahill’s Ill. Rev. St. 1935; Jones Ill. Stats. Ann. 109.189) for the reason that prior to July, 1935, there was an obligation upon a husband to support his wife during marriage whether with or without children and whether they lived together or separate and apart without fault on her part. This act was amended by adding the following clauses:

“Provided that there are no living children born of such marriage no person having once received separate maintenance or temporary alimony for a period of two (2) years or a fraction thereof shall be entitled to further separate maintenance or temporary alimony against the same spouse, except for such portion of the ■ two (2) years as remains unexpired. Provided also, that there are no living children born of such marriage the time during which the husband or wife is living separate and apart from the other spouse, under a decree of separate maintenance, shall be, for the purpose of divorce, regarded as desertion by the husband or wife. ’ ’

It will not be necessary to consider the contention of the plaintiff that in the instant case this statute is controlling, for the reason that in the case of DeMotte v. DeMotte, 364 Ill. 421, the Supreme Court has held that the amendment of 1935 to the Separate Maintenance Act is invalid.

The question of the right of the defendant to maintain an action in the circuit court of Wayne county, Michigan, against the plaintiff has not been considered by this court, as in this case the argument of the plaintiff was based on the contention that the contrabt is contrary to public policy and therefore null and void and in violation of the statutes of this State, and for the further reason that no doubt the Michigan court will pass upon the merits of the controversy when the matter is properly presented.

For the reasons stated we are of the opinion that the court was justified in entering a decree dismissing the plaintiff’s bill for want of equity. Therefore, the decree is affirmed.

Decree affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    The Trust Company of Chicago, Administrator of the Estate of Martin Keane, Deceased, Appellee, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 39,060.

      Hall, J., dissenting.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellants; John R. Guilliams, of Chicago, of counsel.
    McKenna, Harris & Schneider, of Chicago, for appellee ; James J. McKenna and Burrell J. Cramer, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action which is here on appeal by the defendants, was brought under the Injuries Act by the administrator of the estate of Martin Keane, to recover pecuniary loss on behalf of his next of kin occasioned by his death, which occurred on January 1, 1935, by reason of his being struck by a southbound street car on Clark street just south of its intersection with Carmen avenue in Chicago. The case was tried before a jury, who returned a verdict in the sum of $8,500 for the plaintiff, upon which the court entered judgment on May 8,1936.

The case was tried upon four charges of negligence alleged in the complaint, which are as follows:

(1) That defendants negligently and carelessly drove, operated and managed said street car;
(2) That defendants negligently and carelessly drove said street car at a speed that was greater than proper, having regard to the traffic and the use of the way;
(3) That defendants negligently and carelessly drove said street car at a dangerous rate of speed; and
(4) That defendants carelessly and negligently failed to bring said street car to a stop until plaintiff’s intestate could safely proceed although said plaintiff’s intestate was in full view of the driver of the defendants’ street car and it was apparent to said driver that the plaintiff’s intestate was in a position of peril and would be injured unless the street car was brought to a stop.

The plea of the defendants denied the charges and alleged as a defense that the plaintiff’s intestate ran into a street car on the occasion in question, and the defendants further deny that he was in a position of peril at any time on the occasion in question until or immediately before he came in contact with said street car.

From the evidence it appears that the defendants, Guy A. Richardson and Walter J. Cummings, as receivers of the Chicago Surface Lines, are operating electric cars on North Clark street in the city of Chicago, one set of tracks for northbound cars, and one set of tracks for southbound cars, and at the point where the accident occurred, it appears from the evidence that the deceased walked from the west curb on Clark street to about one or two feet from the west rail of the southbound street car track, which was at a point about five feet south of the south crosswalk of Carmen avenue, an intersecting street which runs east and west, where he stopped and looked both ways; that there was a northbound automobile going north in the southbound track because of an obstruction in the northbound track, which obstruction was in the south half of the block; that the automobile approached to a point about 75 feet from plaintiff’s intestate; that there was a southbound street car fully lighted and in plain view about half way across Carmen avenue and coming at a speed of 25 or 35 miles an hour; that plaintiff’s intestate was facing sideways toward the street car and that he raised one hand and was struck by the street car, and as a result he, Martin Keane, was injured and died.

It appears that Martin Keane was a young man 27 years of age, in perfect health, vigorous, with good eyesight and hearing and with no deformity. He was not working on New Tear’s Day, 1935, and left home at about 1:30 in the afternoon “to go out with the boys.” He lived in the neighborhood of Clark street and Carmen avenue for some time and was familiar with that street intersection.

Two doors south of Carmen avenue on the west side of Clark street is located what is known as the Moonlight Tavern. The door of the tavern is at the south side of the front end so that it was approximately 50 feet from the south building line of Carmen avenue.

Keane went to this tavern on New Tear’s afternoon and, according to one of plaintiff’s witnesses, was in the tavern for five hours, during which time he did not take a drink. Another of plaintiff’s witnesses did not see Keane in the tavern until around six o’clock in the afternoon. This witness said that Keane sat on a stool at the bar during all of the time that he was there greeting his friends this New Tear’s Day, but did not take a drink. On cross-examination this witness said: “I would not say he did not have a glass of beer during the time. ’ ’

At approximately seven o’clock in the evening, Keane and the witness Gaither, who had been in the tavern with him for five hours, started to leave the tavern. At the door of the tavern Keane turned back to speak to someone while Gaither proceeded north on the west side of Clark street and was some distance north of Carmen avenue when the accident happened. Gaither did not see Keane after he left him at the door of the tavern and did not see the accident.

A witness named Jones, who had a newsstand at the northeast corner of Clark street and Carmen avenue, went to the Moonlight Tavern about seven o’clock to sell papers, and remained a couple of minutes. He did not know Keane but he saw him walk out of the door of the tavern. The witness came out of the tavern and turned north and saw Keane walking ahead of him diagonally across the sidewalk. Later, he said that when he came out of the tavern he first saw Keane standing near the curb in front of the fruit store. The fruit store was between the tavern and Carmen avenue. The witness said that at the time he did not see the street car but that he could hear it. He heard the rumble and knew that the street car was coming; that Clark street is perfectly straight and that if he had looked down the street he could have seen the street car coming from a distance of about two blocks. The witness saw the street car when it was about a car length north of Carmen avenue, and it appears that the car was well lighted; also that there was an arc light at the southwest corner of the intersection of Clark street and Carmen avenue; that no automobiles were parked along the- west side of Clark street south of Carmen avenue, nor was there any other obstruction to the view from the curb. All of the witnesses testified that the street car was lighted and Gaither said: “When I saw the street car it was lighted up. I had no trouble in seeing it.” When Gaither was half a block north of Carmen avenue and the street car had stopped after the accident, he said, “When I looked at it, I could see the car perfectly plain, it was all lighted up.” The testimony of the other witnesses is to the same effect.

There was some snow and ice on the street between the curb and the street car track, but it was not such as to interfere with Keane’s walking or running from the curb to the street car track and consequently was not such as would have prevented him from stepping back from the track.

There was some evidence, as appears from the record, that there was an obstruction and that the street was blocked on the east side below Carmen avenue; that the street car company had men working on the tracks; that there were no cars going north; that the blockade was about 150 feet south of Carmen avenue, and that automobiles had to go around this on the west side to get by the street car.

It also appears from the evidence that the street was not blocked in front of the tavern; that it was not blocked up to a point within 75 feet of the tavern; that no men were working on the street that night except a watchman at the south end; that the street car track was torn up on the east side; that is between the two rails of the northbound track; that there were lights there.

The witness Jones, who had the newsstand on the corner of Clark street and Carmen avenue, further testified there was a northbound automobile in the block while Keane was standing near the track with his hand up; that at the time of this accident, when Keane went across, there was an automobile coming from the south on the west side of the street about 75 feet from Keane; that Keane looked in the direction of that automobile and had just gotten out next to the car tracks just a little before he raised his left hand. This witness also testified that the automobile was in the west tracks for southbound cars; that it had to turn over to get back into the tracks for northbound street cars; that this automobile did not turn as quickly as it could have turned, and he did not see it pass the tavern because the street car stopped there; that the last time he saw the automobile it was about 40 feet south of the tavern traveling north in the southbound track, and that the door of the tavern was about 50 feet south of the corner.

There is some evidence in the record as to the speed of the car at the time it was coming south on Clark street and before it reached Carmen avenue.

When Keane was struck by the corner of the street car he was thrown into the space between the southbound track and the west curb, and when the street car came to a stop he was lying to the west of the ear somewhere between the center door and the rear end of the car. No one testified that a northbound automobile ran over his body or that a northbound automobile passed between the street car and the west curb before or after Keane was struck or that a northbound automobile stopped on the south bound track or between the southbound track and the west curb.

The evidence in this case is somewhat contradictory in that the witnesses testified to what they saw from different positions, that is, each from his respective position at the time the accident occurred, and they do not all agree as to the circumstances surrounding the death of plaintiff’s intestate, or just what caused the accident.

There is the testimony of the men operating the car at the time in question that the street car stopped on the north side of Carmen avenue and that persons boarded it there; that the car was lighted and the headlight was burning; that after starting, the car attained a speed of approximately 15 miles an hour, which was indicated from the fact that the power was on nine notches, and that when the car was about 15 feet from the entrance to the tavern, a man came running from the west curb toward the east side of the street, and that the man did not look in either direction and had his head down; that he at no time reached the west rail of the southbound track, because his body came in contact with the right hand corner of the car.

The question here is whether the defendants are legally liable under the evidence for the accident which caused the death of Martin Keane. While the facts are largely in dispute, there is no evidence that the deceased at the time of the accident was under the influence of intoxicants. He was 27 years of age, healthy and vigorous, and had good eyesight. The disputed facts hinge upon the acts of plaintiff’s intestate, as well as upon the operation of the street car by defendants’ employee. Mr. Keane crossed from the west to the east side of Clark street at a distance of about five feet south of Carmen avenue, and as he approached the car tracks he raised his hand. At that time the street was well lighted, also the interior of the street car, so that Keane’s position on the street could be seen by the motorman, and the street car could be seen by Keane as it approached.

There is a dispute as to the speed of the car at the time of the accident. There is evidence that it was traveling from 15 to 35 miles per hour. There is also evidence that as the car approached Carmen avenue, which is a 30-foot street, it stopped to take on passengers. Upon a signal the car started, and as it neared the point of the accident, plaintiff’s intestate was in full view of witnesses who so testified. The dispute is as to whether plaintiff’s intestate was at the point testified to by witnesses, and whether he ran into the side of the street car while it was in motion. In any event, the motorman was charged with the duty of so operating the car as to have it under control when he saw the position of Keane on the street. It was his duty to comply with the rules governing his operation of the car, which required that he exercise a greater degree of care and watchfulness at a street intersection than he would at other places along the route, and to notice whether the track was clear as the car approached, and to sound the gong as a warning to the people on the street. These were all questions of fact for the jury.

In the case of Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, which is similar to the case before this court, the Supreme Court said:

“It is incumbent upon those in control of a street caito exercise a greater degree of care or watchfulness at street intersections than at other places along the route. (Booth on Street Railways, sec. 306; West Chicago Street Railroad Co. v. McCallum, 169 Ill. 240; Chicago City Railway Co. v. Robinson, 127 id. 9.) Drivers, gripmen and motormen of street cars are obliged at all times to exercise reasonable care in the conduct of their cars, but the requirement of reasonable care imposes upon them a more exacting attention when they approach street crossings in a crowded city where vehicles and pedestrians may always be expected in front of them. ‘The failure under such circumstances to ring the bell, sound, the gong, or give other proper warning ... is undoubtedly evidence of negligence to be submitted to a jury under all the circumstances, ’ whether there is an ordinance requiring such precautions or not. The increase of danger to the public at such crossings demands a corresponding increase of vigilance and energy on the part of such drivers, gripmen and motormen. They ought to notice whether or not the track is clear when they approach such public crossings, and sound the gong as warning. (2 Thompson on the Law of Negligence, secs. 1399-1401.) ” This rule was further approved by the Supreme Court in the case of Heidenreich v. Bremner, 260 Ill. 439. See also Chicago City Ry. Co. v. Fennimore, 199 Ill. 9. Upon the question of contributory negligence, the Supreme Court in its opinion in the case of Ziraldo v. Lynch Co., 365 Ill. 197, said:

“Whether a plaintiff -was guilty of contributory negligence is ordinarily a question of fact for the jury to decide under proper instructions. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. (Thomas v. Buchanan, 357 Ill. 270; Mueller v. Phelps, 252 id. 630; O’Rourke v. Sproul, 241 id. 576.) A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. (Brophy v. Illinois Steel Co., 242 Ill. 55; City of Chicago v. Jarvis, 226 id. 614.) We cannot weigh the evidence to determine, as a matter of fact, whether the plaintiff was guilty of contributory negligence, (Dukeman v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co., 237 Ill. 104), and we cannot reject testimony as improbable unless it is contrary to some natural law. Zetsche v. Chicago, Peoria and St. Louis Railway Co., 238 Ill. 240.”

Therefore, considering the evidence offered by the plaintiff, it tends to establish that while plaintiff’s intestate was near the car tracks in question and near the intersection of Clark street and Carmen avenue on the west side of Clark street, he made a motion with his hand towards the car, and that while his hand was still in the air he was struck by the approaching car, which had stopped at Carmen avenue to take on passengers. At the time of the accident plaintiff’s intestate was in plain view of the motorman, and there is evidence in the record that no warning was given, by the sounding of a gong, or otherwise. As we view this evidence, together with that offered by the defense, plaintiff’s intestate was not guilty of contributory negligence, as a matter of law. However, these facts were properly before the jury to pass upon.

The further contention is made by the defendants that the jury was prejudiced by inflammatory and improper argument of counsel for the plaintiff. From an examination of this argument it is apparent that the court sustained the objection to what the defendants contend was an improper argument, and overruled other objections and taking the record as it appears, together with the instruction of the court which advised the jury that “the case should be decided upon the evidence admitted and not in the slightest degree upon evidence which has been excluded by the court; and any statements or arguments made by counsel based upon evidence excluded by the court, if any such statements or arguments have been made, should be disregarded by the jury and should have no weight whatever with you,” we are of the opinion that the court properly controlled the action of counsel in his argument, and that there were no prejudicial remarks such as would influence the jury.

The defendants also contend that the damages awarded are excessive. It was for the jury to determine the amount of the verdict, and we do not believe under the facts that we would be justified in disturbing the verdict upon the ground that the damages are excessive. The judgment is accordingly affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., concurs.

Hall, J., dissents.


text:
    Howard K. Hurwith, Appellant, v. Edward B. Carson et al., Appellees.
    Gen. No. 39,081.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.
    A. Henry Goldstein, of Chicago, for appellant; Aaron Soble and Max Chill, both of Chicago, of counsel.
    Chadwick & Johnson, of Chicago, for appellees; Rudolph L. Johnson and Cecil L. Cass, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff named in the title of the case from that part of the decree of foreclosure entered May 28, 1936, in the circuit court of Cook county, Illinois, as follows:

(a) Ordering that the objections to the said report of the master in chancery, filed by counsel for the Chicago Bond and Securities Company, which were disallowed and overruled by the said master, be sustained, and that the report of the said master in chancery is overruled in so far as the objections of the Chicago Bond and Securities Company are concerned;
(b) And that the report of the master is in all other respects approved and confirmed by the court, in so far as the conclusions of law of the master that the contract was the contract of Chicago Bond and Securities Company, a corporation, and the funds used were the funds of the Chicago Bond and Securities Company, and that the money used was not the money of Edward B. Carson, because to hold otherwise would be an injustice to the other shareholders of the Chicago Bond and Securities Company, a corporation.

The proceeding in which the decree appealed from was entered is based on a bill of complaint to foreclose a trust deed, upon the real estate therein described, executed by Nick Mannos, a bachelor, to the Greenebaum Sons Bank and Trust Company, as trustee, given to secure a bond issue of $125,000, bearing interest at 6% per cent per annum, until date of maturity, and 7 per cent after date of maturity, all payable at the office of Greenebaum Sons Investment Company; that prior to the filing of the foreclosure proceeding there remained unpaid bonds in the principal amount of $87,000, which matured on January 1, 1931, and interest amounting to $2,827.50, which also matured on January 1, 1931.

It is further stated in the bill of complaint that some $40,000 worth of bonds were acquired by Edward B. Carson and Frances L. Carson, his wife, and that the said bonds are subordinate to the outstanding bonds issued under this trust deed; that A. B. Cross and Milford F. Henkel are the owner or owners, holder or holders of bonds issued under this trust deed, but that the bonds so owmed by Milford F. Henkel and A. B. Cross are in truth held for Edward B. Carson and Frances L. Carson, his wife.

That title to the premises in question was held by Edward B. Carson and Frances L. Carson, his wife, and under and by virtue of the deed by which they held title, said Edward B. Carson and Frances L. Carson, assumed and agreed to pay the indebtedness secured by the trust deed herein sought to be foreclosed; that by mesne conveyances, title to the premises was conveyed to Eddy C. Powell, who, it is claimed, is acting for Edward B. Carson and Frances L. Carson, his wife.

The prayer, among other things, asks that the court may find the respective priorities as between the various owners and holders of bonds, and coupons secured by the trust deed sought to be foreclosed herein; that in default of payment of the amount found to be due, that the premises described in said trust deed be sold to pay the amount so found to be due and owing the complainants, and that all persons and defendants herein may be forever barred.

Subsequently the bill was amended as follows:

“Your orator further respectfully represents that it is advised and informed, and therefore, states the fact to be that Chicago Bond and Securities Company has or claims to have some right, title, interest or lien in and to the premises described in the bill of complaint, or some part or portion thereof, but your orator avers that the right, title, interest or lien of the said Chicago Bond and Securities Company, if any it has, is subject, junior and inferior to the lien of your orator.”

An answer was filed containing the joint answers of William C. Larson, trustee, under the trust deed from Eddy C. Powell and Mary Powell, his wife, upon the property in question and the Chicago Bond and Securities Company. The answer states that these defendants deny all manner of unlawful combination and conspiracy wherewith they are charged in said bill of complaint.

Subsequently evidence was heard by the master in chancery, to whom the cause was referred by the court, and who filed his report.

Following the filing of the report of the master in chancery, the court sustained objections filed by counsel for the Bond and Securities Company, and overruled the report of the master in so far as objections of the Chicago Bond and Securities Company were concerned, and the amounts allowed as solicitors’ fees, and in all other respects approved and confirmed the report.

The errors relied upon for reversal by the plaintiff are:

“ (1) That part of the Master’s report, approved by the court, finding that the contract between Greenebaum Sons Investment Company and A. B. Cross was the contract of the Chicago Bond and Securities Company, but instead said Master should have found that said contract was the contract of Edward B. Carson and Frances L. Carson, his wife.
“ (2) That part of the Master’s report, approved by the Court, finding that the funds used for the purchase of the bonds were the funds of the Chicago Bond and Securities Company, but instead should have found that these funds were supplied by Edward B. Carson.
“(5) That part of the decree of the Circuit Court which overruled the Master’s report finding that the bonds held by the Chicago Bond and Securities Company are subordinated to the other bonds outstanding and allows the bonds of the Chicago Bond and Securities Company to share on a parity in the security with the other bondholders who had no knowledge of the contract entered into, but instead should have found that the bonds held by the Chicago Bond and Securities Company have been paid and the security released from the lien of said bonds, or else that said bonds are subordinated and inferior to other outstanding bonds in so far as any rights against the security are concerned. ’ ’

From the facts in the record, it appears that the Greenebaum Sons Investment Company and Greenebaum Sons Bank and Trust Company floated the bond issue involved in this litigation. They were also the paying agents. The bondholders, at interest dates and maturity of the prepayment bonds and final maturity, were directed to present them to Greenebaum Sons Investment Company for payment, Greenebaum Sons Investment Company paid the bondholders, after first having received money for payment of the bonds from the mortgagor or the person having an interest in the property.

The bonds here in litigation were taken for collection by Greenebaum Sons Investment Company, from the holders thereof, sent to the First Union Trust and Savings Bank, and when they, Greenebaum Sons Investment Company, received the money therefor, they paid these holders with checks of Greenebaum Sons Investment Company, all this purporting to have been in the regular channels of payment, save that instead of receiving par and accrued interest, the holder received 80 per cent of par, or another bond of Greenebaum Sons Investment Company in exchange.

The bonds were sold to the Chicago Bond and Securities Company by Greenebaum Sons Investment Company. They were delivered to Milford F. Henkel, an attorney, nominally for A. B. Cross. An agreement was entered into between the parties, and it was by this agreement that the Greenebaum Sons Investment Company was to act for itself as principal, and not as agent of any party, and further that the existence of this agreement was not to be disclosed to any of the bondholders. That in pursuance and under the agreement $49,500 in principal amount of these bonds were acquired by Grreenebaum Sons Investment Company from the various bondholders, and subsequent thereto were sent to First Union Trust and Savings Bank who delivered them to Milford F. Henkel, attorney for A. B. Cross, who in turn turned them over to the Chicago Bond and Securities Company, who are now the holders thereof.

That the money to pay for the purported purchase of bonds at 80 cents on the dollar, came from the Chicago Bond and Securities Company, by checks signed by Edward B. Carson, its president, amounting in all to $45,800; that at the time of the acquisition of the bonds, more than 60 days had elapsed from their final maturity date; that Grreenebaum Sons Investment Company did not purport to act under section 2 of Article III of the trust deed, and did not follow the provisions therein; and failed to give written notice to the trustee within 90 days after default of its election to consider the bonds acquired by it on a parity with all other bonds.

The decree finds there is due the complainant, Howard K. Hurwith, as successor trustee, the total sum of $120,638.29, being the principal amount of the bonds plus interest coupons for the benefit of the bondholders, including the bonds of the Chicago Bond and Securities Company.

An important question in this case is whether these bonds acquired by the Chicago Bond and Securities Company can be considered on a parity with the bonds which are affected by the foreclosure now here on appeal. As we have indicated, section 2 of Article III of the trust deed applies in considering the questions here on appeal. It is provided in the trust deed that:

“In consideration of the purchase for investment or resale by Greenebaum Sons Investment Company of bonds hereby secured, . . . ”
“ . . .in case default be made in the payment of any one of the installments of interest upon any of the said bonds, at the time and place aforesaid, . . . or if default be made in the payment of the principal of any one or more of said bonds, at the time and place aforesaid, when and where the same become due and payable, as aforesaid, . . . .”
“. . . Greenebaum Sons Investment Company may at maturity, or at any time within sixty (60) days after such default, pay to the holder or holders of such defaulted bonds or interest coupons the amount due thereon, and such bonds or interest coupons shall thereupon be deemed to have been purchased by said Greenebaum Sons Investment Company, and such bonds or interest coupons shall be delivered uncancelled to said Greenebaum Sons Investment Company, and shall become and be the property of said Greenebaum Sons Investment Company. The payment for such defaulted bonds or interest coupons as aforesaid by said Greenebaum Sons Investment Company shall not be considered a voluntary payment by it for the benefit of the mortgagor hereunder, or for the benefit of any of the other holders of bonds or interest coupons, secured hereby, and shall not have the effect to pay or retire the said bonds or interest coupons so purchased by it, . . .”

It is further provided that “In the event of such purchase, as aforesaid, by said Greenebaum Sons Investment Company of such defaulted bonds or interest coupons, said Greenebaum Sons Investment Company, may, at any time within ninety (90) days after such default, exercise the option whether (1) to assert, on a parity and equality with the holders of all of the other bonds and interest coupons, secured hereby, all or any of the rights given by this deed of trust to the former holders of such defaulted bonds or interest coupons, including the right, at any time after such default has continued for thirty (30) days, to declare immediately due and payable the principal of all of the bonds then outstanding and unpaid and to foreclose this deed of trust in accordance with its provisions.”

The question here is whether Greenebaum Sons Investment Company has complied with the provisions of the trust deed. To exercise its rights under this trust deed it should have given written notice within 90 days after default to the Greenebaum Sons Bank and Trust Company, trustee, that these bonds were to be considered on a parity and equality with the holders of all of the other bonds and interest coupons secured by the trust deed.

The appellant contends, however, that the bonds were not acquired in the manner provided for in the trust agreement, and that they were acquired after the time provided for in said trust deed, and there was a marked failure to give notice to the trustee under the terms of the trust deed.

We quite agree with appellant that it does not appear from the evidence in the record that notice was ever given by Greenebaum Sons Investment Company of its intention, within 90 days after default, to exercise its option to assert on a parity with the holder of all of the other bonds and interest coupons secured by the trust deed, all or any of the rights given to the other defaulted bonds.

The appellant then points out that the evidence on this question discloses that the agreement above mentioned was entered into on the 28th day of February, 1931, between Greenebaum Sons Investment Company and A. B. Cross, which was almost 60 days after the final maturity date, and that not until March 4, 1931, were any of the bonds presented by Greenebaum Sons Investment Company to the First Union Trust and Savings Bank for collection, being more than 60 days after the maturity thereof, and that subsequent purchases were made- by Greenebaum Sons Investment Company, but none of them was made under and in pursuance of the trust deed, wherein it was provided that where the provisions of the trust deed were followed, bonds acquired by Greenebaum Sons Investment Company could be deemed on a parity with all other bonds.

The general rule is that purchasers of bonds, either before or after maturity, take them subject to the provisions of the trust deed, and are bound thereby where they seek in an equitable proceeding to foreclose by reason of a default in the payment of amounts that may be due under the provisions of this deed, and the bondholder is properly chargeable with notice of these provisions. In passing upon this question the Supreme Court in the case of King v. Harpster, 306 Ill. 202, said: “He (referring to the assignor) could transfer no better title than he had. His grantee could acquire no rights which Bice, the holder of the mortgage, did not possess, not because the bank had actual notice of the transaction, but because in equity it was affected with notice. Its rights were only those of its grantor. Since its grantor could not foreclose in equity, the grantee had no power to do so. The doctrine of an innocent purchaser for value, which applies to commercial paper, has no application to a mortgage. The assignee of a mortgage takes it subject to the same equities it was subject to in the hands of the assignor. The assignee of a mortgage knows that it is not assignable at common law, but only in equity, and that he takes it subject to all equities existing in favor of the mortgagor. . . . (Olds v. Cummings, 31 Ill. 188; Silverman v. Bullock, 98 id. 11; Himrod v. Gilman, 147 id. 293; Buehler v. McCormick, 169 id. 269; Peacock v. Phillips, 247 id. 467.) The right to recover on the note against its makers in a court of law is not involved in this case, which is concerned only with the lien of the trust deed on the land. The bank expressly declined to become a purchaser of the note and trust deed from Mrs. Miller but with her approval lent Bice the money with which to pay her, upon his taking the trust deed and pledging it as collateral security for his note to the bank. As between King, the mortgagor, and Bice, the debt was extinguished, and could not have been enforced by Bice against King, and the bank being only Bice’s equitable assignee cannot enforce it.” See also Kratzmeyer v. Weissman, 235 Ill. App. 305.

It is further pointed out by the appellant that if the bonds were purchased by the Chicago Bond and Securities Company at the request of Edward B. Carson, the security is kept alive for the benefit of the Chicago Bond and Securities Company, but the enforcement of such security is junior, inferior and subject to the prior lien of the other bondholders against this security. In support of the theory which he seeks to advance, he calls to the attention of the court the case of Central Trust Co. v. Calumet Co., 260 Ill. App. 410, wherein the court upon the question of subrogation of the rights of the bondholders in and to the security, said:

“The rule that subrogation can be enforced only when the whole debt is paid is for the protection of the holder of that part of the debt not paid, and we cannot see that defendants are interested. Inasmuch as the decree subordinates the rights of complainants to the lien of the subsequently maturing bonds, complainants have, in effect, a second mortgage and can enforce it in any way which the law allows, provided that such enforcement does not affect the rights of the holders of the remaining outstanding bonds and coupons.” See also Thompson v. Davis, 297 Ill. 11.

There seems to be no question that the Chicago Bond and Securities Company purchased the bonds through the Gfreenebaum Sons Investment Company under a contract between these parties; that the bonds were subject to the terms and provisions of the trust deed, and that there was a failure of compliance with the terms thereof for the purpose of maintaining these bonds on a parity with the bonds of the other bondholders. Therefore, it is our opinion that these bondholders should be protected to the extent that whatever recovery may be had, their bonds should be subrogated to the rights these bondholders had at the time they were purchased by the Chicago Bond and Securities Company. The bonds were purchased after maturity and no notice was given within the time fixed by the trust deed, and therefore they are subject to the rights of the bonds purchased before maturity by the bondholders who have complied with the provisions of the trust deed.

Upon the question of subrogation, the Supreme Court in the case of Home Savings Bank v. Bierstadt, 168 Ill. 618, said: “But in addition to this principle of legal subrogation there exists another principle, which is termed conventional subrogation, which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for the security of which there exists a lien, by which agreement he is to have an equal lien to that paid off, whereupon he is entitled to the benefit of the security which he has satisfied with the expectation of receiving an equal lien.”

From the facts, as well as the law applicable to the instant case, it would seem but equitable that the Chicago Bond and Securities Company could claim rights under the doctrine of conventional subrogation to that part of the debt which was purchased by the Securities Company, but its claim, under the facts and terms of the trust deed and the condition under which the purchase was made, is junior and inferior to the other outstanding bonds not paid, and this principle is recognized in part by eh. 95, H 22 (1) of the Ill. State Bar Stats. 1935; Jones Ill. Stats. 83.23, which provides:

“Any person who has a mortgage lien upon any land against which there exists a prior mortgage may pay any interest or any installment of the principal or interest which may be in default upon any such prior mortgage and all such sums so paid shall become a part of the debt secured by such junior mortgage, shall bear interest from date of payment at the same rate as the indebtedness secured by such prior mortgage and shall be collectible with, as a part of and in the same manner as the amount secured by such junior mortgage. ’ ’

It would be inequitable to approve the suggestion of the plaintiff that the bonds in question were acquired by Edward B. Carson and Frances L. Carson, his wife, acting through the Chicago Bond and Securities Company, and hence have been paid. Assuming for the purpose of this argument that the plaintiff was correct in his theory that Carson acted through the Chicago Bond and Securities Company when these bonds were purchased, still there is nothing in the trust deed which would prevent a mortgagor, or one assuming and agreeing to pay the amount of the mortgage, from acquiring title by purchase of the bonds secured by the trust deed, and either applying them in payment of the mortgage indebtedness, or, where the trust deed is being foreclosed, from acquiring* rights on a parity with the other bondholders.

Under the circumstances, however, we are of the opinion that the Chicag’o Bond and Securities Company did advance money in the purchase of these bonds, but having- failed to comply with the provisions of the trust deed, the bonds so purchased are not on a parity with the bonds secured by the trust deed now in the process of foreclosure.

In view of our conclusions we are of the opinion that the court erred in the entry of its decree wherein it finds that the bonds of the Chicago Bond and Securities Company are on a parity with the bonds of the other bondholders which are a part of the foreclosure proceedings provided for by the terms of the trust deed.

For the reasons stated the decree is reversed and the cause remanded.

Reversed and remanded.

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


text:
    The Club Aluminum Company, for the use of Donald P. Frazier, Appellee, v. The American Indemnity Company, Appellant.
    Gen. No. 39,094.
    Opinion filed May 19, 1936.
    Rehearing denied June 2, 1937.

      Jones, Key & Chapman, of Chicago, for appellant.
    Shearer, O’Malley & Sears, of Aurora, for appellee ; Barnabas F. Sears and Richard E. Keogh, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant garnishee from a judgment entered in favor of the plaintiff for the use of Donald P. Frazier in the sum of $10,666.66.

From the facts it appears that sometime prior to May 5, 193Í, the American Indemnity Company, a corporation, having its principal place of business in Galveston, Texas, issued a special form of insurance policy to The Club Aluminum Company, also a corporation. About August 1, 1930, the firm of Marsh & McLennan requested an insurance policy issued to The Club Aluminum Company, with a special indorsement which they themselves had prepared, from Hodgkinson & Durfee, who were brokers for several insurance companies, including the defendant, which request was accepted by Hodgkinson & Durfee on behalf of the defendant company. The policy was to protect The Club Aluminum Company from liability and damages caused by any of its salesmen while operating an automobile in pursuit of the company’s business. Because the salesmen were supposed to spend nearly all of their time demonstrating the company’s products in the homes of prospective customers, a very low premium was agreed upon, viz., $3 per salesman per year to cover property damage and public liability. The ordinary rate at the time this policy was issued on a small car was $16 to $18 a year per salesman. It was the only policy ever issued by the American Indemnity Company at that low rate and in that form. Among the provisions contained in the policy is the following:

“In the event of any accident ... it shall be the duty of the assured to report all circumstances surrounding such accident to the Company at its Head Office as soon as the assured has any knowledge or reason to believe that the assured is involved or likely to become involved in any claim made by any third party or interest. ’ ’

The accident to the plaintiff occurred on May 5,1931, by the operation of a car driven by W. L. Clark, who was manager of the Aurora office of The Club Aluminum Company. Clark was driving* his car to Chicago to attend a sales meeting.

Donald P. Frazier in seeking* to recover damages filed a suit first in Cook county and later in Will county, against The Club Aluminum Company, and W. L. Clark. The suit instituted in Will county was dismissed.

It appears from the evidence that a Mr. Corbett, an employee of The Club Aluminum Company, knew the plaintiff had been seriously injured and that he called up Marsh & McLennan, who handled the insurance for The Club Aluminum Company, the morning after the accident, and also wrote to them.

As we view the record, the issue is as to whether the defendant garnishee was properly given notice of the accident at the time of its occurrence, and in order to establish that such notice was given, Edward Seeber, an employee of Marsh & McLennan, was called as a witness, and testified that he had received a written notice of the accident from The Club Aluminum Company on May 7, 1931; that he thereupon dictated a letter addressed to Hodgkinson & Durfee, who were the general agents of the defendant, the American Indemnity Company, and put this letter on the mailing desk for signature, but never saw the letter thereafter. A carbon copy of this letter dated May 7, 1931, from Marsh & McLennan, the insurance brokers for the plaintiff, to Hodgkinson & Durfee, who were the insurance brokers at that time for the defendant garnishee, was admitted in evidence.

It also appears from the record that the files of Hodgkinson & Durfee, the agents, had been destroyed, and to show the sending of said letter, the plaintiff offered in evidence Marsh & McLennan’s office copy thereof; that the custom prevailing at this time of delivering letters to persons in the Insurance Exchange Building, Chicago, and used by Marsh & McLennan and the agent of the defendant, was what was known as the Clearing House System. This system was used by Marsh & McLennan, and mail for anyone in the Insurance Exchange Building was taken over to a receiving box in its office. The time it was received at the box was marked, and from there it was delivered by the messengers of the Clearing House System to the various parties in the Insurance Exchange Building. Marsh & McLennan, in turn, picked up deliveries for their office from this receiving box. Mr. Seeber, who wrote the letter, testified he did not type the letter, he dictated it to a stenographer. She brought it back to him, he read it and passed it to the mailing desk for signature. This mailing desk is in the center of the room and the mail in Seeber’s department is signed by one party. Seeber stated he put that letter on this table for delivery, and never saw it any more and does not know what happened to it after that. The letter in question was addressed, attention of “Mr. Durfee” and when he was called as a witness he testified that he could not recall whether he had ever seen the original of that letter or not. When he was called as a witness for appellant, he stated he had never seen the original of that letter, and denied that he had stated he did not recall whether he had seen it before.

The record also shows that all mail coming into the office of Hodgkinson & Durfee was first opened by a Mr. Walker. If it came to the attention of Mr. Durfee, Mr. Walker would take it to his, Mr. Durfee’s, desk. Mr. Walker was not produced as a witness for appellant and no effort was made to account for his absence. Only Mr. Durfee and Miss Goodman testified as to the receipt of this letter by Hodgkinson & Durfee. Mr. Durfee testified as above indicated. Miss Goodman stated that she could not tell whether the letter ever came into the office of Hodgkinson & Durfee or not.

It also appears from the evidence that at this time a claim department of the American Indemnity Company was maintained and in charge of Jones & Key, the attorneys who now represent the insurance company on this appeal, and the practice of Hodgkinson & Durfee when receiving accident reports of this nature was to call Mr. J ones of that firm on the telephone.

The injury suit of Mr. Frazier against The Club Aluminum Company arising out of the accident of May 5, 1931, was filed in the superior court of Cook county in February, 1933, returnable on March 6,1933. Prior to March 2,1933, summons in said suit had been delivered to Mr. Jones of J ones & Key by Mr. Bowles of Marsh & McLennan.

It further appears that on March 2, 1933, Mr. Jones wrote a letter to Marsh & McLennan, inclosing1 a non-waiver agreement advising Marsh & McLennan that he had the summons which was returnable March 6, 1933, and stating that their home office advises them that the assured has never made a report of this accident, and that before they can enter the appearance of the assured and give the suit the proper attention at this time, it will be necessary for the assured and Wm. L. Clark, the other defendant and an employee of the assured, to sign the inclosed nonwaiver agreement. Of this non-waiver agreement Mr. Jones said in a letter:

“You will note that this nonwaiver agreement does not change the status of the relationship between the company and the assured at all but the company by entering the appearances of the defendants and giving the suit the necessary attention at this time, does not waive any of its rights to disclaim liability, because of the failure of the assureds to make a report of this accident, if, after investigation they decide to do so.”

The nonwaiver agreement, which was inclosed in the letter addressed to Marsh & McLennan was a printed form furnished by Jones & Key with the blanks filled in to suit this case and consisted of two paragraphs, the first of which is set out for the attention of this court by appellant. The second paragraph reads as follows:

“It is the intention of this agreement to preserve all of the rights of the parties hereto and to provide for an investigation of the loss and the amount thereof without in any way affecting, impairing or adding to the liability of the Company under said policy, or waiving any of its rights thereunder, and no act of the Company shall be construed as an admission of its liability. ’ ’

This nonwaiver, which was inclosed in a letter from Mr. Jones, was received on March 3, 1933, by Marsh & McLennan; was signed on that date by Mr. Corbett for The Club Aluminum Company, witnessed by Mr. Leyden of Marsh & McLennan, and returned to Mr. Jones, who signed it on behalf of the Insurance Company.

It also appears from the facts that Mr. Jones thereafter entered his firm’s appearance in the injury suit as attorney for the assured, The Club Aluminum Company, filed pleas in its behalf, and began an investigation of the facts concerning the injury. A trial was had, and, upon the verdict of the jury, judgment was entered for $10,000 and costs. On March 7,1933, apparently at the request of Mr. Jones, Marsh & McLennan wrote a letter to Mr. Jones enclosing Plaintiff’s Exhibits 12, 13, 14 and 15, from which it appears that it was the contention of the assured that notice had been given to Hodgkinson & Durfee on May 7, 1931.

It further appears that the defendant garnishee, through its agents, made an investigation of the facts surrounding the accident, and the investigator examined the files of the Zurich Insurance Company, which company was interested in the litigation, and also examined the files of the coroner’s record of the inquest.

The plaintiff contends that at no time did the insurance company deny liability under the policy of insurance for failure to give notice, but assumed the defense of said injury suit and insisted that its assured co-operate with it in the defense of said suit.

The defendant garnishee answers, however, that no notice of the accident was given to it, as required by the terms of the policy; that the notice of this accident given to defendant, was, in fact, received almost two years after the accident occurred, when Frazier filed suit against The Club Aluminum Company. The plaintiff in this action did offer evidence that The Club Aluminum Company notified Messrs. Marsh & McLennan, its insurance agent, of the accident which occurred on May 5,1931, by which Frazier was injured through the negligent operation of an automobile by this company. The insurance agent, in turn, prepared a letter to that effect, and the evidence tends to establish that the letter was deposited for the purpose of delivery through the Clearing House System, which was operated for the delivery of letters to the Insurance Company and agents, tenants of the Insurance Exchange, a large office building located in Chicago.

The unfortunate feature of this case is that the defendant’s agent, tenants in the same building, ceased business, and as admitted by the agent, the files of all claims pending during the time it is claimed this defendant was notified, were destroyed. Under the circumstances, the only proof existing is a carbon copy of the letter prepared by Marsh & McLennan, agents for The Club Aluminum Company. It will not be necessary to repeat the facts above stated in the opinion.

It is to be noted that the defendant does not make the point that the letters delivered under the system in vogue was not binding. If the practice was followed by the agents of both parties, then we will assume that the court had before it sufficient evidence to warrant the assumption that the notice was delivered. During a period of several years, the defendant in this action did not, in fact, disclaim liability for want of notice until the trial to recover by the original plaintiff was instituted. The defendant contends that by agreement between The Club Aluminum Company and the defendant insurance company, the defendant did not waive any of its rights under the insurance policy by having its attorney appear and defend in the original action for damages. It is rather unusual that during this period of time the defendant failed to deny liability for want of notice, even when in the original action the attorney for the defendant appeared and acted for The Club Aluminum Company. However, as we have indicated, the evidence before the court was sufficient to establish that the defendant had received notice.

It is contended that when the defendant’s attorney was called by the plaintiff in this action, under ch. 37, H 421, § 33, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 108.056 the court erred in allowing examination of the witness as if under cross-examination. An attorney appearing for parties may be called as a witness for the adverse party for the purpose of proving facts that are not of a confidential disclosure between an attorney and a client. The only time bur courts have criticized an attorney appearing in a case has been when the attorney' takes the witness stand to testify for and on behalf of his client.

. The fact that the plaintiff was seeking to establish by this witness was receipt of notice by him for his client in order to qualify certain copies of notice offered in evidence. This examination while not strictly admissible under this section was not such error as would justify a reversal of the judgment. There is sufficient evidence in the record, however, to justify the court in admitting the notice. Kreiling v. Nortrup, 215 Ill. 195.

We have considered the questions properly before the court. Plaintiff’s contention that the record was not properly before the court we have disregarded, since the portion of the record regarded as material was subsequently furnished by the plaintiff for the benefit of the court.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Harry Pearson, Appellant, v. City of Chicago, Appellee.
    Gen. No. 39,120.
    Opinion filed May 19, 1937.
    Ben W. Goldman and Nathan Allen, both of Chicago, for appellant; Daniel V. Gallery, of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel, Quin O’Breen, Adam E. Patterson, A. M. Smietanka and Patrick T. Harrington, Assistant Corporation Counsel, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

Plaintiff appeals from a judgment in the superior court entered upon instruction to the jury by the court to return a verdict for the defendant of not guilty.

This was an action at law brought by the plaintiff to recover damages for injuries sustained on December 25, 1934, by reason of a fall resulting from an accumulation of ice and snow in a public alley in the city of Chicago. Notice of this action, as required by statute, was given to and received by the city of Chicago.

The alley has a cement pavement and runs in a northerly and southerly direction, and is bound on the west by Paulina street and on the east by Clark street, and on the north by Thorndale avenue, thus forming an ell, and was in the possession and control of the city of Chicago for the use of the public.

On December 25,1934, the plaintiff was in the tailoring and repairing business, and on that date delivered clothing to a customer living on the west side of Chicago. In making delivery he used an automobile owned by him for that purpose, which he stored in a public garage located at 5906 North Clark street, in Chicago. Upon his return the plaintiff drove the automobile into the alley from Paulina street into the garage, through the rear door, at the above number — 5906 N. Clark street. After leaving his automobile he went through the rear door of the garage to the alley and started south to his own rear entrance of the building that he occupied as a tailor and resident, which was about 60 feet from the rear door of the garage, and known as No. 5904 Clark street, Chicago. Near the west wall of the garage was a level path. Ten feet south of the garage door was erected a telephone pole from 12 to 14 inches in diameter and about a foot from the wall, so that the pole extended from 24 to 26 inches into the alley. In walking south in the alley plaintiff was obliged to turn at this point toward the center of the alley. On December 25, 1934, there was 7.1 inches of snow on the level. Traffic in the alley was heavy, and was made up of milk trucks, delivery wagons and motor cars. These vehicles passing through the snow and slush caused ruts, ridges and hillocks of a depth of from 4 to 7 inches. The plaintiff tried to avoid the ruts for the reason — as he testified — that it would be hard to release his foot if he slipped into one of the ruts, and that he was careful, but his foot slipped into a rut and he was thrown down. The plaintiff was unable to arise, and crawled to the rear entrance of his home. His cries brought his wife and daughter and they carried him into his home.

Plaintiff was injured, and it appears from the doctor’s testimony that the left femur was fractured at the hip, that the fracture did not respond to surgical treatment, and did not knit, so that the neck of the femur is gone. For the remainder of his life the plaintiff is obliged to wear a splint, consisting of two rods running from his body to the ground. At the top of the splint is a seat on which his buttock rests when walking.

The defendant contends that the city of Chicago is only bound to use reasonable care to keep its alleys reasonably safe for the amount and kind of travel which may fairly be expected in them, and that the degree of care to be exercised by the city in the matter of keeping its alleys free from snow and ice for the benefit of pedestrians is not as great as that- to be exercised by the city of Chicago in the matter of keeping its streets and sidewalks free from obstructions to pedestrians caused by the accumulation of snow and ice, and cite in support of its position the case of Boender v. City of Harvey, 251 Ill. 228, in which the court says:

“No arbitrary rule can be laid down as to defects in highways or streets for which municipalities will be liable or as to the degree of care required of the person injured. Municipal corporations are not insurers against accidents. The object to be secured is reasonable safety for travel, considering the amount and kind of travel which may fairly be expected upon the particular road or street. A highway in the country need not be of the same character as a street in a large city.”

The rule of law governing’ in actions of this kind is stated by the court in the case of Graham v. City of Chicago, 346 Ill. 638, wherein the court in its opinion considered the decisions of various jurisdictions upon the question of liability of the city for injuries caused by snow and ice such as we have in the instant case. We believe it is illuminating to quote from this decision the statement of the court regarding the various authorities which were considered in reaching a conclusion in that case. The court said:

“It is claimed that the defendant city was not guilty of any negligence under the law in permitting the ice to remain on the sidewalk; that a city is under no obligation to remove ice from sidewalks in the winter time unless it had formed in ridges and hillocks, so as to be in the nature of an obstruction to pedestrians, and that it is immaterial whether the slipperiness was caused by natural or artificial means. What, if any, duty devolves upon a city to remove ice from its sidewalks is a subject of a great variety of opinions, and because of this divergence of views a number of different and contradictory statements of the law have been laid down in the various jurisdictions. However, there is one rule which is almost universal. That is, a city is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes. (13 R. C. L. ‘Highways,’ 408; Spillane v. Fitchburg, 177 Mass. 87; Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523, 53 L. R. A. 805.) A municipality is bound only to use reasonable care to keep its sidewalks reasonably safe for the amount and kind of travel which may fairly be expected upon them. (Boender v. City of Harvey, 251 Ill. 228.) In view of the generality of ice and snow in the winter time,, the doctrine has become quite prevalent that it would be an unreasonable requirement to compel a municipality to remove them from walks and streets. In Chase v. Cleveland, 44 Ohio St. 505, the court said: ‘It is not unreasonable to assume that there were hundreds of similar dangerous places in the city of Cleveland at the time of the accident to plaintiff. To effectually provide against danger from this source would require a large special force, involving enormous expense. ’ While this rule has assumed approximate universality, it has nevertheless been made subject to various exceptions. For example, it is sometimes said that it is immaterial whether the slipperiness was caused by natural or artificial means. (43 Corpus Juris, 1022; Nason v. Boston, 14 Allen, (Mass.) 508; Henkes v. Minneapolis, 42 Minn. 530.) In other jurisdictions the exemption exists only where it was caused by natural means. (13 R. C. L. ‘Highways,’ 413; Evans v. Concordia, 74 Kan. 70; Reedy v. St. Louis Brewing Ass’n, supra; Huston v. Council Bluffs, 101 Iowa, 33, 36 L. R. A. 211.) Likewise, it has been held that a city is not liable if the ice was merely smooth and slippery (Evans v. Concordia, supra; Anthony v. Glens Falls, 88 N. Y. Sup. 536; Cook v. Milwaukee, 24 Wis. 270); yet liability may attach if it were in ridges or hillocks. Evans v. Concordia, supra; Luther v. City of Wor cester, 97 Mass. 268; Jones v. City of Troy, 127 N. Y. 671.
“The decisions in the various jurisdictions upon this question of liability are so varied and numerous that it would be impracticable for us to attempt to analyze them or to harmonize them, but we have reached the conclusion that the reason which underlies the rule exempting cities from liability because of damages from slippery ice is that of necessity. It is grounded on the fact that it is unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months. Especially is it true in this latitude. But the rule must be predicated on the formation of ice from natural causes, for it would be neither unreasonable, impracticable nor expensive, as a general proposition, to compel the removal of ice from sidewalks which was produced by artificial causes. It is the generality of a situation resulting from natural causes that gives rise to the rule.”

The facts are not clear as to how long the condition complained of existed in the alley, so that from the point of time the court could not consider that the city had notice of this condition. This of itself is not conclusive as to the liability of the city. It must appear from the evidence that plaintiff was in the exercise of due care for his own safety. The facts clearly indicate that at the time this accident happened he was familiar with and had notice before that time of the condition of the alley; that he operated his automobile through this alley when using it for the purposes of his business ; that after using the car he would drive through the alley to the entrance of the garage in which he stored his car.

While the defendant by making a motion at the close of plaintiff’s case admitted all the facts and such reasonable inference as might be drawn therefrom, it urges that from the evidence it does not appear that the plaintiff was in the exercise of due care, and that the plaintiff in using the alley after knowledge of its condition, which it is alleged contributed to the accident to plaintiff, was chargeable with such want of care as to bar recovery.

In the case of the City of Quincy v. Barker, 81 Ill. 300, which was an action against the city of Quincy for injuries sustained by an alleged defect in a sidewalk where the accident occurred, the court in referring to the rule applicable to actions of this character, said:

“In The City of Aurora v. Pulfer, 56 Ill. 270, it was held that the obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person exercising ordinary prudence can not avoid danger or injury in passing them; in general, such defects as can not be readily detected. . . .
“If it be conceded that the ice upon the sidewalk was an obstruction, it was a defect in the walk that could be readily detected; it was in the center of the walk and in plain view, and could not escape the attention of a pedestrian, unless he was walking in a hasty and reckless manner. Can it be said that the ice upon the walk was such a defect that the plaintiff, by the exercise of ordinary care, could not have avoided the danger? We apprehend not. If he had given that attention to the walk that is required of a prudent man, he, no doubt, would have seen the ice, and then he could have passed on either side of it in safety, as the walk was sufficiently wide and safe for that purpose.
“Had the plaintiff been unacquainted with the walk, and been passing over it in the night time, when the obstruction could not have been seen, then a different question would arise; . . .
“It is utterly impracticable for a city or incorporated town at all seasons of the year to keep streets and sidewalks free and clear from ice; and should the incorporation be held liable for every accident that might occur from an obstruction of this character, the result might be to bankrupt every incorporated town in the State.”

From this decision, however, Mr. Chief Justice Scott of the Supreme Court dissented.

The fact that the plaintiff was familiar with the condition of the alley and used it as he did, would, in our opinion, be such want of care as to preclude a recovery.

The judgment of the trial court is affirmed.

Judgment affirmed.

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