text:
    L. D. Webster, Appellee, v. Inland Supply Company and American Mutual Liability Insurance Company, Appellants.
    Gen. No. 38,648.
    Opinion filed December 30, 1936.
    Angerstein, Piggott & Angerstein and Charles Wolee, all of Chicago, for appellants.
    Frederick A. Garieey, of Chicago, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

By this appeal defendants, Inland Supply Company and American Mutual Liability Insurance Company, seek to reverse a judgment for $441.90, rendered against them in favor of plaintiff, L. D. Webster, in an action brought by the latter upon an automobile liability policy issued by the insurance company to the Inland Supply Company, plaintiff’s employer, to recover the amount of a judgment and costs rendered against plaintiff in a suit brought against him by one Doonan, for damages caused by plaintiff’s negligence in the operation of his automobile while engaged with said automobile in and about the business of his employer. The trial court denied defendants’ motion to dismiss plaintiff’s complaint and defendants electing to stand by their motion, the judgment in question here was entered.

Plaintiff’s complaint alleged, substantially, that he was in the employ of the Inland Supply Company since prior to May 11, 1934, up to the time he filed his complaint in this cause August 23, 1935; that “on May 11, 1934, the defendant American Mutual Liability Insurance Company, then and there issued its policy of insurance with the Inland Supply Company and the plaintiff herein and said policy remained in full force and effect from May 11, 1934, to May 11, 1935”; and that “a true copy of said policy of insurance, together with rider attached thereto is hereby made a part of this complaint and attached hereto and declared upon.”

The complaint further alleged that the policy provided as follows: [Only pertinent portions quoted.]

“I. To pay, within the policy limits applying thereto, each loss by reason of liability imposed upon him by law for damages, not only on account of bodily injury or death of a person or persons not hereinafter excepted, but also (if a property damage insurance premium charge has been included in the declarations) on account of damage to the property of others and the resulting loss of use thereof, caused by an accident, occurring within the policy period, by reason of the use, ownership, maintenance, or operation of the motor vehicle or trailer, or, if the motor vehicle is of the commercial type, by reason of the loading or unloading of merchandise, provided the insured has, as respects such loading or unloading operations,- no other collectible insurance.

“II. To serve the insured by such investigation of each alleged accident and such negotiation or settlement of each claim as the Company may deem expedient.

“III. To defend, in behalf of the insured, each suit, even though wholly groundless, brought against the insured to enforce a claim for such injury, death or damage, and, as respects each suit, to pay the entire premiums on attachment, removal, and appeal bonds, costs taxed against the insured, and interest accruing on the entire judgment up to the date of payment by the Company of its share of the judgment.

“IV. To pay all expenses incurred by the Company in the performance of its agreements, and, also, the expenses incurred by the insured for such necessary surgical relief of an injury covered by the policy as is rendered immediately following the accident.

“V. To extend this insurance, in the same manner and under the same conditions as it is available to the named insured, to any person, or persons, while riding in or using, operating, or maintaining the motor vehicle or trailer, and to any person, firm or corporation, legally responsible for the operation, use, or maintenance thereof, provided such use, maintenance, or operation is with the consent, express or implied, of the named insured, or, if the named insured is an individual, with the consent, express or implied, of an adult member of the named insured’s household other than a chauffeur or domestic servant; except that this insurance shall not be available to a public automobile garage, automobile repair shop, automobile sales agency, automobile service station, or any agent or employee thereof, nor shall it be available to any person, firm, or corporation having other collectible insurance as respects the accident; provided, further, insurance payable hereunder shall be applied first to the protection of the named insured, and the remainder, if any, to the protection of other persons entitled to insurance under the provisions and conditions of this clause, as the named insured shall in writing direct. If any motor vehicle or trailer specified in the application is sold, transferred, or assigned during the policy period, the protection herein provided shall not extend to the purchaser, transferee, or assignee thereof, except by the written consent of the Company endorsed hereon.

“The unqualified term ‘insured’ wherever used in this policy shall include, in each instance, not only the named insured, but also any other person, firm, or corporation, entitled to protection under this policy, but the qualified term ‘named insured’ shall apply only to the insured named and described as such in the declarations.”

The complaint then alleges that by reason of the terms of the policy and plaintiff’s inclusion in “class 1” of the rider or indorsement to said policy as an employee of the Inland Supply Company, “he was then and there insured against all loss by reason of damages sustained by him while in the course of the employ of the Inland Supply Company”; that March 12, 1935, while operating his automobile in the course of his employment for the Inland Supply Company “he sustained an automobile accident with one George Doonan on 31st street in the Village of Broadview, Cook county, Illinois, for which an action was brought by Mary Elizabeth Doonan, in which she recovered judgment against him for $441.90; that the insurance company was notified of the pendency of the Doonan action against plaintiff and refused to defend same; that plaintiff paid said judgment and in addition thereto $75. for his attorney’s fees in that suit; that the insurance company has refused to reimburse or indemnify plaintiff for the amounts so expended and therefore he brings this action as an assured under the policy to recover the above amounts from the insurance company; and that ‘ ‘ the Inland Supply Company, made defendant hereto, refuses and fails to institute suit for recovery of said money for the plaintiff herein and is, therefore, a party defendant hereto as is by statute provided.”

The printed rider or indorsement attached to the regular printed form of policy is as follows:

“It is agreed hereby, in consideration of the premiums specified herein, that the insurance, provided by the policy to which this endorsement is attached, is for the benefit of the insured only and applies only as respects an accident occurring in the business of the insured of any motor vehicle of the private passenger type, neither owned wholly or partly, registered, hired, nor leased, by the insured, nor by a partner if the insured is a partnership, but which is being-used at the time of the accident by an employee of the insured who comes within the description of class 1 below. . . .

“Class 1 — All outside employees, however compensated, whose usual duties involve the use in the business of the insured of any motor vehicles of the private passenger type.

“Class 2 — All other employees.

“The insured shall maintain a complete and accurate record of the names and locations of all employees subject to class 1 rating, with each deduction therefrom and addition thereto entered, in chronological order, immediately after each deduction or addition becomes effective, together with the date thereof and the date of entry on the record, a complete list of which additions and deductions shall be submitted to the company at the end of each calendar month and shall become a part of the schedule. The insured shall also keep an accurate record of the number of employees under class 2 if a specified rate for class 2 is indicated in the schedule.

“Upon delivery of the policy the insured shall pay to the Company an advance premium based on the number of employees in class 1, as indicated in the schedule at the time the policy is delivered and which the insured warrants to be accurate as to names and numbers, multiplied by the rate applicable to said class as indicated in the schedule, plus a premium based similarly on the number and rate applicable to class ,2, if a specified rate for class 2 is indicated in the schedule. The earned premium shall be computed as above, and if greater than the advance paid premium the insured shall pay the difference to the Company; if the advance paid premium is greater than the earned premium, the Company shall pay the difference.

“It is agreed hereby that the provisions of agreements V and F of the policy shall not apply as respects this insurance, and that if other collectible insurance exists in favor of the insured as respects any accident the insurance herein provided shall apply only to such amount as is in excess of such other insurance.”

Attached to said indorsement was a schedule of the employees of the Inland Supply Company specified as being in “Class 1,” a portion of which list is as follows:

“Name of Employee Location Rate P.L. Premium P.D.

G-. W. Tipple Chicago, Illinois 13.50 3.00

C. E. Johnson ” ” 13.50 3.00

F. C. Baulle ” ” 13.50 3.00

Otto Siellner ” ” 13.50 3.00

Ben Smith Joliet,» ” 6.75 2.00

Ray P. Krapp ” ” 6.75 2.00

S. J. Warnock Elgin, ” 6.75 2.00

L. D. Webster ” ” 6.75 2.00”

(The schedule also included a list of the number of employees within “class 2,” which is omitted as being immaterial here.)

Defendants contend that the “omnibus” clause, which is paragraph V of the printed form policy, has application only to cars owned by the assured, Inland Supply Company; that the indorsement to the policy by express provision in its first paragraph covers only the liability of the Inland Supply Company; that in the 6th paragraph of the indorsement express provision is made to exclude the coverage provided by paragraph V of the policy, the ‘1 omnibus ’ ’ clause having no application to the coverage provided by the indorsement; and that the inclusion of plaintiff’s name, L. D. Webster, in the “Class 1” schedule of employees was not for the purpose of extending the coverage of the policy to him, but to designate him as one of those specified employees through the use of whose cars liability might attach to the employer, the Inland Supply Company, for which it could demand protection under the policy.

Plaintiff’s theory as stated in his brief is as follows:

“1. That he was insured and was to be indemnified against loss on account of damages recovered against him and paid by him, and the expense of defending any action filed against him, under the terms of the printed provisions of the policy of insurance and the endorsement attached to the policy.

“2. That if there is any doubt as to the true intent, meaning and construction of this whole policy of insurance, it will be resolved against the defendants and in favor of the plaintiff.

“3. That the entire policy, when construed as one instrument and when effect is given to every part thereof to arrive at its true meaning and purpose, provides insurance coverage for plaintiff and plaintiff’s right to be indemnified.”

To clarify the issues, and afford a proper understanding of the precise question involved, it is pertinent to state that the Inland Supply Company took out a policy of insurance with the American Mutual Liability Insurance Company covering liability imposed by law by reason of damage to both person and property arising out of the use of motor vehicles owned by the Inland Supply Company. The policy was a standard form used in Illinois and contained the customary so-called “omnibus” clause, which extended the benefits of the insurance to any person using or operating motor vehicles belonging to the Inland Supply Company with its consent and permission. By agreement of the parties an indorsement was added to the policy. This indorsement was captioned “Non-Ownership Automobile Liability,” and covered any liability which might be imposed upon the Inland Supply Company for the use of cars not owned by that company, but owned and operated by certain designated employees of whom plaintiff was one.

Our attention has been directed to the recognized and familiar rule that an insurance contract includes the printed form policy, the declarations therein, and any indorsement thereto, and that the principles governing the interpretation of insurance contracts are those applicable to other contracts, all parts of the insurance contract to be considered together to ascertain the meaning, purpose and intent of the parties; and that where ambiguity exists a contract of insurance will be construed most strongly against the insurer. However, the rule that a contract is to be construed favorably to the insured, or to one claiming to be the insured, does not authorize a perversion of the language of the contract of insurance. (Fee v. Zurich General Accident & Liability Ins. Co., 257 Ill. App. 227.)

Plaintiff was not a party to the insurance contract in question, but claims that the benefit of its coverage was extended to him under paragraph V, the so-called “omnibus” clause of the original policy covering motor vehicles owned by the Inland Supply Oompany, which paragraph, in addition to extending’ protection to “any person or persons, while riding in or using, operating, or maintaining the motor vehicle or trailer, and to any person, firm or corporation, legally responsible for the operation, use, or maintenance thereof, provided such use, maintenance, or operation is with the consent, express or implied, of the named insured,” distinguished between the “named assured” and the “insured,” the latter term including not only the named assured but all others entitled to protection under paragraph V of the policy.

The original policy shows conclusively on its face that it was issued to cover the liability of the Inland Supply Company as to motor vehicles and trailers owned by it, and, it was, therefore, necessary in order to cover any liability of that company which might attach under the doctrine of respondeat superior, by reason of the negligent operation of motor vehicles owned by employees and used by them in the business of their employer, Inland Supply Company, to purchase insurance affording the additional protection evidenced by the indorsement captioned “Non-Ownership Automobile Liability. ’ ’ The so-called ‘ ‘ omnibus ’ ’ clause of the original policy is expressly excluded from the additional coverage of the non-ownership indorsement, the 6th paragraph of which, as heretofore set forth, declaring: “It is agreed hereby that the provisions of agreements V and F of the policy shall not apply as respects this insurance.”

The first paragraph of the indorsement, as heretofore shown, provides, in part, as follows:

“It is agreed hereby, in consideration of the premiums specified herein, that the insurance, provided by the policy to which this endorsement is attached, is for the benefit of the insured only and applies only as respects an accident occurring in the business of the insured of any motor vehicle of the private passenger type, neither owned wholly or partly, registered, hired nor leased, by the insured, nor by a partner if the insured is a partnership, but which is being used at the time of the accident by an employee of the insured who comes within the description of class 1 below or within the description of class 2, if the remuneration of the employees of class 2 is a subject of premium charge as indicated in the schedule.” (Italics ours.)

Plaintiff stresses the meaning of the word “insured” as defined in paragraph V of the original policy, and insists that by the use of the unqualified term “insured,” instead of “named assured,” in the indorsement, it was intended to extend the protection of the insurance contract to employee owners of cars used in the business of the Inland Supply Company. The very phraseology of the indorsement, wherever the term “insured” is used, defeats this contention. The term is used in the first, second, fourth and fifth paragraphs of the indorsement and, in each instance, its use is exclusive of application to an employee and inclusive of application only to the employer. In the first paragraph we observe the language “but which is being used at the time of the accident by an employee of the insured.” In paragraph 2 we find “all outside employees, however compensated, whose usual duties involve the use in the business of the insured of any motor vehicles of the private passenger type. ’ ’ In paragraph 4 is found this language: “The insured shall maintain a complete and accurate record of the names and locations of all employees subject to class 1 rating.” Paragraph 5 states that “upon delivery óf the policy the insured shall pay to the Company an advance premium based on the number of employees in class 1. . . .” It thus appears clearly that wherever the term “insured” is used in the indorsement it refers solely to the Inland Supply Company.

The inclusion of plaintiff’s name in the list of cars of employees of the Inland Supply Company in the schedule attached to the indorsement, and to which reference is made in said indorsement, lends no force to plaintiff’s contention that he was covered by the policy. The obvious purpose in attaching this list to the indorsement was to designate those employees from the use of whose cars the Inland Supply Company might incur liability to the public at large for which it could demand protection under the policy. The premium charged and paid on the policy was for the insurance of the employer only against the liability described therein.

In passing upon a somewhat similar policy in Loughran v. Employers Mut. Indemnity Corp., 212 Wis. 634, 250 N. W. 389, where a judgment was recovered in Pennsylvania against the principal defendant, Joseph Eea, for damages sustained by the plaintiff through the negligent operation by Eea of his automobile, which collided with and killed plaintiff’s wife, and where Eea not having paid anything on the judgment “plaintiff sued on this judgment in Wisconsin and ancillary to the main suit garnished the Employers Mutual Indemnity Corporation on the theory that an indemnity policy issued to Eea’s employer, the Masonite Corporation, rendered it indebted to the principal defendant to the amount of the judgment,” the court said at pp. 636, 638:

“Eea was in the employ of the Masonite Corporation as a traveling salesman. In performance of his duty to his employer he used his own automobile: This automobile with others owned or rented by other employees was covered by a policy issued by the garnishee to the Masonite Corporation. The policy was a ‘non-ownership’ as distinguished from an ‘ownership’ policy. ‘Non-ownership’ policies are procured by employers to protect themselves against liability for injuries sustained through negligence of their em-. plo'yees for which they would be liable under the doctrine of respondeat superior.

í i

“And as the policy by its express terms does not cover and shall not be construed to cover the liability of apy other person than the named insured, it follows that it does not cover the liability of Rea.”

The injured party, Doonan, had a right of action against both Webster and the Inland Supply Company. If the Inland Supply Company had been sued and judgment secured against it there would be no question of the insurer’s liability to that company under the policy. However, the action was brought against Webster, alone, who satisfied the judgment rendered against him and thus extinguished any right of action Doonan had against the Inland Supply Company. Webster was a joint tortfeasor and, as such, it must be conceded that he had no right of action against his employer, the Inland Supply Company. Doonan’s failure to join the latter as a defendant certainly created no right of action in Webster against his employer. Since the Inland Supply Company owes no duty or liability to the plaintiff, he can make no valid claim against the insurance company and the insurance contract providing, as it does, coverage only to the Inland Steel Company, plaintiff is precluded from claiming* protection under it.

In our opinion the provisions of the insurance contract were neither ambiguous nor inconsistent, but were expressed in clear, plain and understandable language, and were not intended to and did not furnish "plaintiff protection against his liability on the Doonan judgment.

For the reasons indicated herein the judgment of the superior court is reversed.

Judgment reversed.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice John J. Sullivan

license: Public Domain

text:
    Agata Leoni, Administratrix of the Estate of Salvatore Leoni, Deceased, Appellant, v. James H. McMillan, Appellee.
    Gen. No. 38,801.

      Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Guy C. Guerine, Paul W. Brust and A. H. D ’Anza, all of Melrose Park, for appellant; Guy C. Guerine, of counsel.
    Braun, Anderson & Nobby, of Chicago, for appellee; Joseph H. Braun, Joseph P. Brodie and Max H. Braun, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment entered December 5,1935, by the circuit court upon the verdict of a jury finding defendant, James H. McMillan, not guilty, in an action brought by plaintiff, Agata Leoni, administratrix of the estate of Salvatore Leoni, deceased, against defendant for damages for wrongfully causing the death of said Salvatore Leoni, her husband.

The first count of plaintiff’s declaration alleged that Salvatore Leoni was walking on and upon North avenue, near Maywood, Cook county, Illinois; that he was in the exercise of due care; that defendant was operating an automobile truck in a westerly direction on North avenue; that defendant negligently operated his truck and struck deceased, who died March 14, 1935; that defendant drove his truck at a speed greater than was reasonable and proper and thereby endangered persons rightfully on the highway; that defendant negligently operated and drove his truck without blowing his horn or giving any warning of his approach ; that defendant negligently failed to keep a proper lookout and watch for persons lawfully upon the highway; that defendant negligently failed to apply his brakes in time to avoid running into deceased; that defendant negligently failed to heed the warning-signs placed on the. highway; that defendant wantonly and maliciously drove and operated his truck so as to cause it to run into deceased; that, while-deceased was upon the highway, he became in danger of being run into by defendant, and, although defendant became aware of the danger to deceased, he thereafter negligently caused his truck to run into Leoni; and that plaintiff as the widow of deceased was appointed administratrix of his estate.

The second count of the complaint alleged that deceased “was then and there engaged in certain construction work then and there being performed upon and along said highway ’ ’; that defendant was operating’ a motor truck in a “westerly direction on the aforesaid North avenue, at and near the place above mentioned”; and that deceased was in the exercise of due care. This count then continued with the same allegations as the first count, heretofore set forth. Plaintiff filed his answer June 22, 1935, denying the material allegations of the complaint and at the same time an additional answer alleging that both deceased and defendant were under the provisions of the Workmen’s Compensation Act and that under the terms of said act “plaintiff is not entitled to maintain this cause of action.”

Plaintiff’s theory is that deceased being a workman engaged in and about the highway was not obliged to keep a constant lookout for passing* motor vehicles and that motorists driving where men are engaged in work in and about a public highway are bound to keep their motor vehicles under proper control so that they will not injure such workmen engrossed in their work ; and that the defendant, either having been warned by signs that men were worldng in and about the highway or having seen them so working in sufficient time to have brought his car to a stop or under proper control, was guilty of willful and wanton conduct in failing to heed the signs or his sight of the men themselves, which should have made it apparent to him that someone would be injured if he persisted in driving-in the manner that he did.

Plaintiff contends that the judgment appealed from should be reversed because the trial court erred in the following respects:

“1. The trial court erred in not setting aside the verdict of the jury finding the defendant ‘not guilty’ as the evidence shows the verdict to have been clearly against the manifest weight of the evidence.

“2. The trial court erred in striking from the consideration of the jury that portion of the complaint charging the defendant with willful and wanton conduct.

“3. The conduct of defendant’s counsel in stating to the jury that plaintiff had filed a claim for compensation and had received compensation under the Workmen’s Compensation Act was prejudicial.

“4. The trial court should have set aside the verdict and granted the plaintiff a new trial on her petition that she was taken by surprise by the testimony of the defendant, which testimony was contradicted by the affidavit of the witness, W. E. May, who was unavailable on account of illness.

“5. The court erred in permitting the use of the coroner’s transcript of evidence in the cross-examination of plaintiff’s witnesses, without the proper foundation having been first laid.

“6. The court erred in giving, on behalf of the defendant, instructions which suggested matters not shown by the evidence; also in giving instructions which defined the degree of care required of the deceased.”

The undisputed evidence shows that on March 14, 1935, workmen were employed constructing drainage ditches under North avenue, a short distance north of the Village of Maywood, Cook county, Illinois; that about 4 p. m. of that day, deceased, who was 43 years old and in good health, with four or five other men, was so employed; that North avenue, at the place of the occurrence, was a concrete highway, running in an easterly and westerly direction, divided into two lanes, each 18 or 20 feet wide, the north lane for westbound traffic and the south lane for eastbound -traffic, said lanes being separated by a dirt space or parkway eight or ten feet wide; that there was a wire fence about two or two and a half feet high north of the north edge of the north drive; that there was a dirt shoulder two or two and a half feet in width between the north edge of the north driveway and the fence; that a truck used in connection with the construction work was parked, partly on the south side of the north roadway and partly on the dirt strip that separated the north and south drives, about 15 or 20 feet west of the tunnel above which deceased was working when he was struck by defendant’s truck; and that the weather was clear and the pavement dry.

There is no serious conflict in the evidence except as to a few points. Defendant’s version of the occurrence, as testified to by him, is that he was driving-west on North avenue with four tons of coal on his truck; that he had frequently passed over the particular portion of the highway involved; that he was driving 26 miles an hour when he crossed Fisher avenue, about 1,000 feet to the east of the point where the accident occurred, and that when he saw “these men in a group at that point,” he “pulled down around 15 to 18 miles an hour”; that “the first time I noticed Mr. Leoni, he crossed the street, carrying a tile to the fence”; that “I was back all of 50 to 60 feet”; that continuously thereafter his view of deceased was unobstructed; that when Leoni reached the fence “he laid the tile down”; that “at that time I was within probably three or four feet of him”; that after he laid the tile down “without looking up or giving any signs, he immediately turned and started crossing the pavement”; that “as soon as I saw him, I swerved my truck to the south”; that “he hit the right front fender on the right side of the truck . . . right by the front wheel”; that “all I could see he turned. As he turned, I swung the truck over to avoid running over him and came to a stop”; and that he stopped his truck about 20 feet west of the point of impact.

On cross-examination defendant testified that, there was room for two cars to pass each other on the north section of the highway; that he was driving on the extreme north lane of that section; that he saw deceased “working there”; that his brakes were in good condition and under prevailing conditions he could have stopped his truck within 15 to 20 feet; that “the fence was two feet from the pavement”; that deceased “took two steps back to the pavement” and “he was struck”; that he did not blow a horn or give any other warning of his approach; that when deceased “had laid the tile down” over the fence to the north, his back was toward the witness “when I was away from him, before I had gotten to him”; and that he did not stop his truck at any time before deceased was struck.

Bernard Rubinstein, testifying in defendant’s behalf, stated that he was driving his car west on the north drive of North avenue, some distance to the east of defendant’s truck; that he was traveling at a speed of 40 to 45 miles an hour and that “the truck must have been going, say approximately half the speed”; and that when he stopped his car with its right rear door opposite the body of deceased “it was about two lengths from my car to Mr. McMillan’s truck” where it stopped after striking deceased, and that the construction truck was parked in the center dirt strip, about in between his car and defendant’s truck.

Louis Macro, Leoni’s foreman, testified in plaintiff’s behalf that just prior to the accident deceased had carried pipes across the north pavement; that he talked to deceased about a minute before he was struck; that at the time he spoke to him Leoni was handing a pipe down to the men who were working north of the fence; that that was the last pipe to be carried across the road; that he saw Leoni standing between the north edge of the pavement and the fence; that, after he had left Leoni and was walking toward the parked truck, he heard a commotion and went back; that he found the body of the deceased 20' feet west of the tunnel where he had been working; that he was lying with his feet on the dirt and his head on the pavement; that defendant’s track was then 25 feet west of the body of deceased; that he saw skid marks within a foot of the north edg’e of the pavement that were not there before the accident; that there were signs on dirt piles in the parkway between the two sections of the highway east of where the men were working which stated, “Slow Down, Men Working”; that these signs were two feet long; and that there was no horn blown or warning of any kind given by defendant.

Frank Monfeli, a fellow workmen of Leoni, testified in plaintiff’s behalf that he was employed with Leoni and four other men in the construction of a drainage sewer; that he was working north of the fence; that he was about 10 feet north of the north edge of the road and facing south; that Leoni was standing about one foot off the pavement, facing northwest at the time he was struck; that he saw the truck ‘ ‘ come from east going west” about 30 to 35 feet away from where Leoni was standing, and that the track was traveling at a speed of from 30 to 35 miles an hour, near the north edge of the pavement; that at the instant of the actual impact he was digging and did not see it; that after the accident defendant’s truck was standing on the north edge of the pavement, 25 to 35 feet west of Leoni’s body and from 40 to 45 feet west of the tunnel where Leoni and the other men were working.

Dominick Bibani, another fellow workman of Leoni, testified in plaintiff’s behalf that at the time of the accident he was working to the north of North avenue, digging a ditch; that there was a fence about two and a half feet high approximately two feet north of the north edge of the pavement; that he was working north of the fence and Leoni was south of the fence, on the shoulder between the north edge of the pave-, ment and the fence; that after Leoni had dropped the pipe over the fence he stood facing north, with one foot on the pavement and one foot on the dirt shoulder; that the witness saw the truck coming at a speed of about 30 or 35 miles an hour; that he saw the right front fender of the truck strike deceased and “I seen him turn like a somersault”; that after the accident Leoni’s body was lying about 15 feet west of the ditch where he had been working and defendant’s truck stopped about 60 feet west of said ditch; that no horn was sounded by defendant before the accident; that before defendant’s truck struck Leoni “it was about a foot away from the edge of the pavement”; and that “he made a swing about five feet after he hit him and came back on the same line again.”

The first question presented for our determination is whether the verdict was against the weight of the evidence. In our opinion it unquestionably was. The evidence shows clearly that defendant could have avoided striking deceased if he had blown his horn in sufficient time to have warned him of the approach of the truck, or if he had stopped his truck, or even reduced its speed or if he had turned his truck, even slightly, to the left or south, where the road was entirely clear at that immediate point. When defendant was 50 or 60 feet east of the point of impact, he, even according to his own version, had an unobstructed view of deceased carrying the concrete pipe from the center dirt strip north across the north drive to the fence. He stated that he kept on going at the same speed and that when the deceased, with his back toward defendant, dropped the pipe over the fence, his truck was within three or four feet of him. It developed that there were no more pipes to be carried, but there is nothing in the evidence to indicate that defendant was aware of that fact, and in the exercise of reasonable care he might well have assumed that when deceased delivered the pipe which defendant saw him carry, he would go back south across the road for

another. Deceased was doing heavy work as a laborer and, while his size does not appear from the evidence, it is fair to assume that he was a man of average size. The dirt shoulder between the north edge of the highway and the fence over which Leoni dropped the heavy pipe, did not afford him much more room, if any, than enough to straighten up after depositing the pipe and to turn around. The work of deceased gave him not only the right but-compelled him to be where he was at the time he was struck and immediately prior thereto. Even according to defendant’s uncorroborated testimony, deceased had not advanced any further than to the very edge of the road. Defendant stated that deceased, from his place at the fence, with his back toward defendant, “took two steps back to the pavement” and was struck. One of plaintiff’s witnesses piaced'deceased with one foot on the dirt shoulder and the other on the pavement near its north edge when he was struck. Although defendant stated that he swerved his truck to the south “to avoid running over him,” when he was almost upon deceased, this statement is refuted by all the other evidence in the record, as well as by the physical facts. After Leoni was struck skid marks were found on the road, which commenced about four or five feet east of the point of impact, and these marks of the right tires of the truck were about one foot south of the north edge of the highway. It is a matter of common knowledge that there is some overhang of the fenders of auto trucks beyond the wheels and tires and it necessarily follows that if Leoni was barely on the edge of the road or even without his being on the road at all, if his body protruded slightly over .the edge of the road, he would have been struck.

Although plaintiff’s witnesses testified that several men engaged in the construction of the drainage sewer • were working about eight or ten feet north of the point where deceased dropped the tile over the fence, that there were piles of dirt from the several tunnel excavations, both on the dirt strip south of the north drive and beyond the fence to the north of said drive, and that there were signs containing the warning “Slow Down, Men Working,” on dirt piles in the center parkway of North avenue, east of where deceased and his fellow employees were working, defendant denied seeing any piles of dirt, signs, or men working, other than deceased. In any event defendant did see Leoni working on the street when he was 50 or 60 feet to the east of him. He knew that the space between the north edge of the pavement and the fence was only about two feet in width. He should have realized that Leoni’s employment might require him to turn around and immediately recross the highway for another pipe. He should have known that the mere act of straightening up, after depositing the tile over the fence, and turning around in the two-foot space would in itself bring the deceased to the very edge of the roadway. Yet defendant continued to hug the north edge of the road with his right wheels within one foot of the edge thereof and with the overhang of the right fender at or near the very edge. Defendant did not blow his horn or give any other warning of his approach. He could have stopped his truck within 15 or 20 feet, but he not only did not stop it before striking Leoni but he did not even reduce its speed after he left Fisher avenue, which was about 1,000 feet east of the accident. The roadway was 18 or 20 feet wide, and although at the time it was entirely free of other traffic it is clear from the evidence that defendant did not change his course of travel one iota until after the impact, when, according to his own testimony, he swerved to the south to avoid “running over” deceased.

According to defendant, Leoni only “took two steps back to the pavement” from the fence when he was struck. This placed him at the edge of the pavement, whether he was just on the pavement near its edge or on the dirt shoulder near the edge of the pavement. Defendant testified that he was driving at a speed of only between 15 to 18 miles an hour at the time of the occurrence, but this evidence is refuted by the practically undisputed evidence that Leoni’s body was thrown at least 15 or 20 feet forward by the force of the impact and defendant’s own testimony that, when he stopped his truck, it was 20 feet west of the body of deceased.

Drivers of vehicles must take notice of men working on the highway and to exercise care not to injure them, and a workman has a right to assume that this will be done. (Nehring v. Monroe Stationery Co. (Mo. App.), 191 S. W. 1054.) It is clear that under the facts and circumstances of this case it was the duty of defendant to manage his truck with such a degree of care as not unnecessarily to endanger deceased while he was attending to his work and Leoni had a right to rely on the fact that the drivers of automobiles using the highway, who had knowledge of his presence and saw him at work, would exercise reasonable care in managing their automobiles, so as not to injure him. (Carneghi v. Gerlach, 208 Ill. App. 340.)

We regard it as a reasonable and just inference from all the evidence in this case that defendant, if not guilty of wilful and wanton conduct, was unquestionably negligent in the management of his truck, not only in running it at a greater rate of speed than was consistent with the safety of the workman, Leoni, whom he admits he saw, and in failing to blow his horn as a warning of the approach of his truck, but that he was negligent also in not turning to the left or south soon enoug-h to avoid striking the deceased when the entire roadway was clear on that point.

As to the question of Leoni’s exercise of care for his own safety, it must be remembered that he was rightfully in the place where he was struck. While it was for the jury to determine as to whether or not plaintiff’s intestate was guilty of negligence that contributed to the injury which resulted in his death, we are impelled to hold that an unprejudiced jury was bound under all the facts and circumstances appearing in the record before us to find that Leoni was in the exercise of due care, both at the time he was struck and immediately prior thereto.

Although the verdict of the jury is usually final and binding upon the court as to questions of fact, if it can be seen from an examination of the entire record that the verdict is clearly and manifestly against the weight of the evidence and should have been set aside by the trial court, this court will not hesitate to reverse the judgment on appeal. (Mississippi Lime & Material Co. v. Smith, 282 Ill. App. 361; Donelson v. East St. Louis & Suburban Ry. Co., 235 Ill. 625; Connors v. Winke, 200, Ill. App. 351; Williams v. Parmalee Transfer Co., 194 Ill. App. 468.)

The verdict in the instant case, in our opinion, could only have been reached as a result of prejudice engendered in the minds of the jury by reason of the injection into this case by defendant of the Workmen’s Compensation Act, which well might have caused the jury to believe that plaintiff had been fully compensated for the death of her husband or because the jury was prejudiced or misled by the instructions of the court, several of which were palpably erroneous. It is unnecessary to discuss these instructions in detail because they are so obviously erroneous that the faults therein will in all likelihood not recur upon a retrial of this cause.

Under all the facts and circumstances in evidence, as hereinbefore set forth, we are of the opinion that the trial court also erred in striking that portion of the complaint charging the defendant with wilful and wanton conduct.

It is impossible to determine from the record whether the provisions of the Workmen’s Compensation Act are applicable to the issues in this case. When the case is retried that question should be properly presented and determined by the trial court.

Other points are urged, but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons indicated herein the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Rudy Wiedoeft, Appellee, v. Frank Holton and Company, Appellant.
    Gen. No. 38,546.

      Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, and Frederick Kull, of Elkhorn, Wis., for appellant; Edward R. Johnston and Albert E. Jenner, Jr., of Chicago, of counsel.
    Benjamin H. Ehrlich, of Chicago, for appellee; Aaron H. Cohn, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

The subject matter of this controversy came up on a previous appeal from a decree of the superior court finding the issues for plaintiff and rereferring the cause to a master for the purpose of stating an account between the parties. (Wiedoeft v. Frank Holton & Co., Gen. No. 37,185, not reported in full, but abstracted in 277 Ill. App. 609.) A petition for certiorari was subsequently denied by the Supreme Court of this State. (277 Ill. App. XVIII.) By that decree, and the affirmance thereof, the validity of a 10-year written agreement between plaintiff and defendant company, made November 7, 1927, and the material rights of the parties thereunder, was fully adjudicated, and only the question of an accounting pursuant to the decree remained. No supersedeas was sought or had by defendant, and while the cause was pending here for determination the parties proceeded before the master' under the accounting reference. Defendant now seeks to reverse the supplemental decree stating the account between the parties, based upon the master’s supplemental report.

The original decree embodied the following* material finding's: That plaintiff had for many years been a musician of considerable training* and experience, proficient in playing* the saxophone; that he had long* been engaged in giving public exhibitions and had recorded his renditions on discs and records, and had attained great popularity by playing this instrument over the radio and thereby acquired a reputation through his performance, which created a great and popular demand for his services; that he had advised certain changes in the saxophone, resulting in the manufacture by defendant of an improved instrument, known as the “Rudy "Wiedoeft Model Saxophone,” had popularized the instrument by advertising* over the radio and otherwise, and created a demand therefor; that under the contract, then in controversy, defendant had agreed to engage plaintiff for a period of not less than six nor more than 10 weeks in each of the 10 years contracted for, to advertise and sell the model instrument, for which plaintiff was to receive $500 a week and traveling expenses, and, in addition thereto, certain royalties on the instruments manufactured which substantially embodied any of the changes made by him; that the contract was legal and enforceable and plaintiff had substantially carried out all the provisions thereof required by him to be performed; that defendant engaged him for only six weeks during the first year of the agreement, for which he was paid, but during the subsequent years he received no engagements or remuneration whatever, although he had at all times been ready, willing and able to render the services stipulated; that the Rudy Wiedoeft Model Saxophone was manufactured and sold by defendant until December 1, 1930, when plaintiff’s name was omitted therefrom, and thereafter defendant continued to manufacture and sell “practically the same model,” under the name “Revelation model”; and that the discontinuance was “a subterfuge in an attempt by defendant to defeat complainant’s right to recover the compensation as provided in said contract.”

Pursuant to the entry of the original decree, which by its affirmance ultimately established the validity of the agreement and the material rights of the parties thereunder, the cause was rereferred to a master (not the one to whom the original reference was had) to state the account, both as to the employment features of the contract and the claim of plaintiff for royalties due. In due course the master filed his report, defendant’s exceptions thereto were overruled by the chancellor, and the supplemental decree here in question was entered, finding that defendant owed plaintiff $23,063.40, some $16,000 of which was held to be due for salary under the agreement and the balance for royalties, interest and costs. Notwithstanding the fact that the first master’s report and the original decree found that the contract had not been breached, the second master, who stated the account, recommended recovery under the employment feature of the agreement on the theory of a breach of contract, and defendant assigns this as error.

The points urged as ground for reversal may be classified under two principal headings: (1) the employment feature of the supplemental decree, and (2) the findings relative to royalties due. As to the first of these it is urged that in this State an employee has an election of remedies, and may pursue one of three courses: (1) He may treat the contract as entirely rescinded and recover upon a quantum meruit so far as he has performed; (2) he may treat the breach as being an end to the contract for all purposes of performance and sue for a breach thereof, continuing the agreement in force only for the purposes of suit; (3) or he may elect to keep the contract alive for all purposes for the benefit of both . parties, hold himself at all times ready and able to perform, and at the end of the time specified for performance bring suit thereon for the sums due thereunder. It is argued that since this action is obviously not based on quantum meruit the remaining alternatives were a suit to recover damages for breach, or one on the contract itself on the theory that it had been kept alive; that since these remedies are inconsistent with each other, plaintiff was required to elect which one he chose to pursue; that his election clearly indicates that he sought recovery on the theory that his contract had been kept alive, the pleadings having so stated his position, the case having been tried on that theory, and the master having specifically found, prior to the entry of the original decree, that the contract sued on was not breached. It is urged as a matter of law that as a result of this election of remedies, the finding in the original decree that the contract was not breached, and the consistency with which plaintiff has all through these proceedings maintained that the agreement was alive and that he sought to recover upon that theory, made it incumbent on plaintiff to show performance under the contract in order to receive the stipulated salary, and that the performance shown must be actual and not constructive. Authorities are cited which defendant’s counsel say lead to the conclusion that in cases where an employee cannot prove performance his only recourse is to bring an action for breach of contract. To- support this position it is urged that the theory of constructive service, an early doctrine under which an employee, without having actually rendered any services, might hold himself ready, able and willing to perform, and then sue for wages, has been repudiated in most States, including Illinois, and Doherty v. Schipper & Block, 250 Ill. 128, 133, is cited as representing' the current rule in this State. In this connection it is argued that the second master “realizing the fundamental and inherent weakness of plaintiff’s theory of action [that the contract was alive] finds that the doctrine of constructive service is repudiated in this state, and then finds that plaintiff must have intended to exercise the option of suing upon the theory of breach of contract; and he permits a recovery of damages in the sum of $500 per week for six weeks in each year up to May 7,1934.”

There can be no doubt that plaintiff proceeded on the theory that the contract had been kept alive. His counsel not only concedes this to be true, but asserts it in his brief. Inasmuch as one of the masters specifically found that the agreement had not been breached and that finding was later incorporated in the decree, further discussion of the point is unnecessary. But the finding of the master in the last supplemental report that recovery should be had on the theory of a breach, cannot alter or affect the determination of this question in the original decree, and would not justify a reversal of the supplemental decree, for the following reasons: The cause was referred to the master for the sole purpose of stating an account. The original decree found the contract to be valid and in force and that plaintiff had fully performed. There remained nothing for the master to do but compute the sum due, and he properly adopted as a basis for his computation the minimum six-weeks period provided in the agreement, which, at $500 a week, amounted to $3,000 each year, and then simply multiplied that sum by the number of years the contract had been in force up to May 7, 1934, when plaintiff made arrangements with another concern. Whatever else the master found, or any theory adopted by him contrary to the provisions of the original decree, pursuant to which the accounting was had, was immaterial.

Authorities relied on by defendant on the question of constructive service are in the main cases where the employee had been discharged. In this cause plaintiff was never discharged, and no such contention can fairly be made; he was in the service of defendant all through the master’s hearing and until May 7,1934. Doherty v. Schipper & Block, 250 Ill. 128, was tried on the theory of a rescission of the contract, and is therefore not applicable to this proceeding. Kelly v. Galbraith, 186 Ill. 593, is also cited, but it does not help defendant. That was a bill in equity, brought to reform a written instrument, and in that proceeding complainant was allowed to recover certain instalments of rent due under a lease. In so far as the court held that “the relief administered in equity is such as the nature of the case, and the facts as they exist at the close of the litigation, demand,” that decision supports plaintiff’s rather than defendant’s position. After all, plaintiff herein sought to recover whatever was due him in one proceeding, and in view of the fact that no competent evidence was adduced to show a mitigation of damages, the amount recovered would have been identical whether assessed on the theory of a breach or on the theory that the contract had been kept alive. This was not a simple employment agreement. The consideration for plaintiff’s performance was more than the stipulated $500 a week; it included royalties to be paid plaintiff on the manufacture of instruments sold as a result of the demand created for the improved saxophone by reason of the contemplated advertising of plaintiff’s art and the improvements suggested by him in the manufacture of the instrument. These two features were so inter-related in the contract that one cannot well be separated from the other, and therefore the agreement cannot be treated solely as a separate contract of employment within the authorities cited.

As to the contention that it was incumbent on plaintiff to prove actual performance under the constructive service theory, we think the recital and finding in the original decree is conclusive. That decree found that “complainant has substantially performed all the provisions of the aforesaid agreement by him required to be performed.” This was based upon evidence and findings that he had at all times held himself ready, willing and able to comply with the contract, and these findings are conclusive on defendant and can no longer be questioned.

The other ground urged for reversal relates to royalties. Counsel for defendant characterize the consideration of the royalty claims as somewhat complicated, due to the multiplicity of saxophones involved, the multiplicity of their engravings, their various forms and changes, and the relation which plaintiff had with each of them, and they say that “threaded through this mass of names and instruments there runs the first decree and its findings, the allegations of the pleadings, the provisions of the contract, and the findings of the master.” Specifically, defendant seeks to make it appear that this court in making a change in the original decree effected a reversal of the trial court so as to reopen for consideration the question as to which models were to be taken into account, and it contends that the Rudy Wiedoeft “R” model, and the “Revelation” model, contain none of the suggestions of plaintiff and is, therefore, not liable to account. That portion of our opinion which modified the original decree follows:

“The evidence discloses that before either of the contracts was executed, and before Wiedoeft had any business relations with defendant, defendant manufactured and sold a saxophone known as ‘Revelation Model’ and continued to sell some saxophones of that model upon request of purchasers even after the ‘Rudy Wiedoeft Model’ began-to be manufactured and sold; and that this old ‘Revelation Model’ did not embody any of the changes as made in the ‘Rudy Wiedoeft Model,’ whilst the new or present ‘Revelation Model’ do embody said changes. The language of the portion of the decree mentioned makes no distinction between the old and the new ‘Revelation Models.’ It merely says ‘under the name Revelation Model.’ This lang^iag’e possibly renders said portion of the decree uncertain. It is, however, no ground for a reversal of the entire decree, as urged by defendant’s counsel. The language can be modified, and we think that it should be, by the addition of the following words: ‘which substantially embodies any of the changes made by Wiedoeft and contained in the Rudy Wiedoeft Model. ’ ” Except for the modification appearing at the end of this paragraph, namely, “which substantially embodies any of the changes made by Wiedoeft and contained in the Rudy Wiedoeft Model,” the decree was not in anywise altered, and certainly there was no reversal thereof. We think the accounting on the question of royalties was definitely ascertained in the original decree, and that the issue is not beset with all the complications urged. The chancellor found and we held that the new “Revelation Model” embodies the changes made in the Rudy Wiedoeft Model, and the modification made by our opinion was to avoid any uncertainty in the decree so as to eliminate from the accounting the old “Revelation Model,” on which plaintiff had never sought recovery and for which none was allowed. A careful reading of our former opinion, reciting in detail the findings of the master, and the provisions of the decree, justifies this conclusion.

The former adjudication of the rights of the parties under this contract eliminates from further consideration most of the questions raised by defendant. Counsel for defendant still argue, however, that the court ought not to countenance the recovery of royalties based upon a fraudulent contract. The fraud which they refer to was fully argued in the original proceeding, where the principal contention made was that the contract was invalid on grounds of public policy because of the deception practiced on the public by engraving Wiedoeft’s name on some of the instruments which he had no part in improving, and they say that this fraud so permeates the entire transaction as to void it “from end to end.” Inasmuch as the validity of the contract was the principal question in issue on the first appeal, we cannot understand why counsel again raise the point; it has been fully determined and merits no further consideration.

For the reasons stated herein the supplemental decree of the circuit court should be affirmed, and it is so ordered.

Decree affirmed.

John J. Sullivan, P. J., and Scanlan, J., concur.


text:
    Penelopi Spudeas, Appellee, v. National Life and Accident Insurance Company, Appellant.
    Gen. No. 38,753.
    Opinion filed December 30, 1936.
    Donahue & Hubka, of Chicago, for appellant; Frank E. Donahue and Vernon E. Hubka, of counsel.
    Milton H. & Edward W. Weiss, of Chicago, for appellee; Edward W. Weiss, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

National Life & Accident Insurance Company, Inc., defendant herein, appeals from a judgment of the municipal court for $500, entered pursuant to a directed verdict in favor of plaintiff as beneficiary under the terms of a policy insuring the life of her deceased husband, Louis Spudeas.

The policy was issued July 31, 1933, on application of deceased, without medical examination. Assured died July 20, 1934. Defense to the action was based on the ill health of insured at the time of the receipt of the policy, previous pulmonary diseases, rejections by other insurance companies and misrepresentations in the application for insurance. The policy provided for a weekly premium of 68 cents, and for payment of $500 in the event of death. It also contained accident and disability provisions.

Trial was had by jury. To sustain her claim plaintiff offered in evidence the original policy of insurance, and there being no question as to payment of premiums or the receipt of proper death claims she thereupon rested her case. A tender of the premiums paid was made by defendant and rejected by plaintiff. When defendant began to produce testimony in support of its affidavit of merits, plaintiff’s counsel moved to exclude all of defendant’s evidence and for a directed verdict. The court granted the motion, only one witness for defendant having been heard. Before the motion was made and granted, defendant offered to prove, in substance, that assured had been confined in bed with pleurisy and anemia for a period of 12 weeks three months prior to receiving the policy; that this was the diagnosis of assured’s own physician who attended him during that period; that he received disability benefits during the time he was confined in bed from an employees’ sick fund; that immediately prior to his death assured had been admitted to the Cook County Hospital, where he gave a case history of pneumonia in the year 1929, of pleurisy in 1933; that he had been spitting blood for a year and a month prior to his admission, and that Dr. Glugler, a physician, would testify that assured was in fact suffering from tuberculosis at the time the policy was issued; that proof would be made by deposition that an application for a life insurance policy to assured was rejected by the Prudential Life Insurance Company in May, 1933. The court excluded defendant’s offer of proof and directed a verdict upon the theory that he regarded the policy as an assessment life insurance policy, and the failure to attach the application to the policy under section 16 of the Assessment Life Insurance Act of July 14, 1927 (par. 432 (16), sec. 16, subsec. 3, ch. 73, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.458) rendered the policy incontestable from the date of its issuance. Section 16 of that act provides that “if the application therefor be not attached to and made a part of any contract, or referred to and made a part of the contract as aforesaid in any weekly premium payment contract, the contract shall be incontestable from date of issue.”

The principal question thus presented for determination is whether or not this policy comes within the assessment life insurance statute. We think it does not for the following reasons: In par. 411, sec. 7, ch. 73, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.420, assessment companies are defined as follows :

“Any corporation organized to insure lives which provides for the payment of policy claims, the accumulation of reserve or emergency funds and the expense of the management and prosecution of the business by payments to be made either at periods named in the contract or upon assessment as required, by persons holding similar contracts, and wherein the insured’s liability to contribute to the payment of policy ' claims accrued or to accnoe is not limited to a fixed sum shall be deemed to be engaged in the business of life insurance upon the assessment plan, and shall be subject only to the provisions of this Act; . . .” The policy in question in this case provides for the .payment of a fixed sum as a premium.

Par. 432 (2), ch. 73, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.443, designates the companies to which the assessment life insurance company act shall apply, as follows:

“This act shall apply to: (a) companies organized hereunder; . . . ” There is no showing* that defendant company was organized under the assessment plan.

Par. 341, sec. 18, ch. 73, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.339, being* part of the act regulating the business of life insurance, contains the following provision:

“. . . but policies of life, or endowment insurance or annuity policies which contain provisions operating, in the event that the insured or annuitant shall become totally and permanently disabled from any cause, to safeguard the insurance or annuity against lapse or to grant a special surrender value or an annuity payable for a limited period or during the life of the insured, or which contain provisions granting insurance against death by accident, shall nevertheless be deemed to be policies of life or endowment insurance or annuity policies within the intent of this section. ’ ’

It is clear, therefore, that inasmuch as there was no showing that defendant had been organized under the Assessment Act, that its policy provided for a fixed premium and was not on an assessment basis, that section 16 of the Assessment Act is not applicable to defendant company. Holding as we do that this was a stock insurance company policy and not one coming within the statute governing life and accident assessment companies, it follows that the failure to attach the application to the policy was not fatal to defendant’s case, and that the policy was contestable for a period of two years under the provisions of the policy, regardless of whether the application was attached or not. The court should have allowed defendant to submit proof in support of its affidavit of merits. To direct a verdict without allowing .defendant to introduce its defense constituted error.

It is urged on behalf of defendant that the motion for a directed verdict amounted to an abandonment of the issues of fact under the pleadings, and that the issues thereafter were confined entirely to the question of law as to whether or not defendant came within the statute governing life and accident assessment companies. We think, however, justice would be better served if defendant were allowed to interpose its defense and the issues submitted either to the court or to a jury. The cause is therefore reversed and remanded for a new trial.

Reversed and remanded.

John 'J. Sullivan, P. J., and Scanlan, J., concur.


text:
    Blanche Kessler, Appellant, v. Isaac Aller et al., Appellees.
    Gen. No. 38,823.

      Opinion filed December 30, 1936.
    Hershenson & Hershenson, of Chicago, for appellant.
    Pritzker & Pritzker, of Chicago, for appellee; Bichard'Weinberger, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff filed a statement of claim in the municipal court against defendants for money due on a promissory note in the sum of $20,000, together with interest thereon at the rate of six per cent per annum. The note was signed by Isaac Aller, a bachelor, Harry Aller, Jennie Aller, his wife, and was indorsed by Michael Grusin. By way of defense it was averred that (1) plaintiff was not a bona fide owner; (2) that Michael Grusin was merely an accommodation indorser, and (3) that there was a merger as a matter of law. Plaintiff made her case by introducing the note in question, showing the amount due thereon together with interest. Defendants thereupon put in their evidence, tending* to establish the defenses set forth in their affidavit of merits. Without allowing plaintiff an opportunity to introduce evidence in rebuttal of the affirmative defenses set forth, the court directed a verdict in favor of defendants and entered judgment accordingly. This appeal followed.

The principal controversy relates to the third defense. It is urged that where a person holds a mortgage upon real estate and then acquires the equity of redemption, a merger takes place, and the estate is discharged from the incumbrance and the mortgage debt becomes satisfied. Plaintiff concedes this to be the rule, but insists that she should have been permitted to introduce evidence, by way of rebuttal, tending to show that it was the intention of the parties that a merger should not take place. At the close of defendants’ case plaintiff’s counsel offered to make proof of the evidence available, but the court, of its own motion, denied plaintiff’s offer of proof and directed a verdict in favor of defendants.

Defendants argue that the court was justified in directing a verdict, because plaintiff sought to invoke the doctrine of prevention of merger, and since the municipal court is a court without general equity jurisdiction, that doctrine, being* purely equitable, could be considered only in a court of equity. In talcing this position we think defendants fail to distinguish the difference between the doctrine of general equity jurisdiction and the right to interpose equitable claims and defenses in accordance with modern procedure under the municipal court rules. Suits in assumpsit are equitable in their nature, even though they are filed as actions at law. 5 Corpus Juris 1390, sec. 27, states the rule as follows:

“Assumpsit, being* an equitable action, admits almost every defense to which ^defendant is entitled in equity and good conscience. ’ ’

It was held in Moran v. Union Bank of Chicago, 266 Ill. App. 315, that equitable defenses may be interposed in actions of assumpsit. That being the rule it is difficult to understand why plaintiff should not have been permitted to introduce evidence tending to show that the parties had agreed that a merger should not take place. It is conceded that although the municipal court is not a court of general equity jurisdiction under its rules equitable defenses may be interposed. (See Note 1 to Eule 1, Revised Civil Practice Rules of the Municipal Court of Chicago, in force November 1, 1935.) The doctrine of merger is an equitable defense, and it would follow that plaintiff ought to have been given the opportunity to show, by way of rebuttal, that agreements had been entered into between the parties to prevent merger. To hold otherwise would necessitate a trial of the issues in two courts, and the modern tendency is to liberalize the practice and simplify procedure. The rules of the municipal court permit and encourage the determination of such issues in a single proceeding.

The rule is well established that a verdict for defendant on an affirmative defense can be directed only after an opportunity is given plaintiff to contradict or explain. (Wallner v. Chicago Consol. Traction Co., 245 Ill. 148; Helm v. Illinois Commercial Men’s Ass’n, 279 Ill. 570.) The directed verdict was given on the court’s own motion and over the objection of plaintiff’s counsel, the court evidently having desired to shorten the proceeding, as indicated by its statement preceding the termination of the case: “We cannot waste the time of the court on the point,” and that “the very basis on which the case is handled is contrary to your [plaintiff’s] conception.”

The judgment of the municipal court is reversed and the cause remanded for a new trial.

Reversed and remanded.

John J. Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Matchett

text:
    First District.
    The People of the State of Illinois for use of Ida Slavik et al., appellants, v. United States Fidelity and Guaranty Company and John B. Dicus, appellees.
    Gen. No. 38,597.
    Opinion filed November 2, 1936.
    A. G. Dicus and Edwin Hamilton, for appellants. Francis M. Lowes, for certain appellee. Robertson, Crowe & Spence, for certain other appellee; Egbert Robertson and Eugene P. Kealy, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Emma Dicus et al., conservatrices of the estate of Louis Scherer, incompetent, appellees, v. John B. Dicus and United States Fidelity and Guaranty Company, appellants.
    Gen. No. 38,782.
    Opinion filed November 2, 1936.
    F. M. Lowes, for certain appellant. Robertson, Crowe & Spence, for certain other appellant; Egbert Robertson and Eugene P. Kealy, of counsel. A. G. Dicus and Edwin Hamilton, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Florence Uhlig, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 38,864.
    Opinion filed November 2, 1936.

      Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. H. Kay George and Martin Roth-man, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Sol Bernstein, appellant.
    Gen. No. 38,896.
    Opinion filed November 2, 1936.
    Hart E. Baker, for appellant; Irving ICrane and Ira Silbar, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Mark J. McNamara and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    In re Estate of Daniel Gawne, deceased. Appeal of Clara V. Gawne, executrix under the last will and testament of Daniel Gawne, deceased, appellant, v. In re Claim of William L. O’Connell, appellee.
    Gen. No. 38,938.
    Opinion filed November 2, 1936.
    Charles J. Trainor, for appellant. Altheimer, Mayer, Woods & Smith, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Cora Moen, appellee, v. Ruth’s Beauty Shoppes, Inc., appellant.
    Gen. No. 38,961.
    Opinion filed November 2, 1936.
    Rehearing denied November 16, 1936'.
    Samuel R. Rabinoff, for appellant; Elwyn E. Long, of counsel. Charles A. Bellows, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Harold R. Schradzki, appellant, v. Patrick Warren and Patrick Warren Construction Company, appellees.
    Gen. No. 39,055.
    Opinion filed November 2, 1936.
    Rehearing denied November 16, 1936.
    Willard R. Matheny, for appellant; Harold R. Schradzki, pro se, of counsel. Watkins & Ten Hoor, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Katherine B. Comstock et al., appellees, v. Morgan Park Trust and Savings Bank et al., defendants. Adeline Benjamin et al., appellants.
    Gen. No. 39,023.
    Opinion filed November 2, 1936.
    Rehearing denied and opinion modified November 20, 1936.
    Enoch J. Price and Owen N. Price, for appellants. Friedman, Schimberg & Alster and Aaron Soble, for appellees; Irving Goodman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Ben Siegel and Simon Gold, trading as S. & G. Auto Finance Company and Max Podolsky, appellees, v. Motor Vehicle Casualty Company, appellant.
    Gen. No. 38,705.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.
    Delmar J. Hill and James McKenzie, for appellant. Leon N. Miller and Joseph C. Rafilson, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the

court.


text:
    Robert D. Melick, appellee, v. Metropolitan Casualty Insurance Company of New York, appellant.
    Gen. No. 38,789.
    Opinion filed November 4, 1936.
    Pain & Hurd, for appellant. Robert D. Melick, pro se.

   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    The People of the State of Illinois, plaintiff in error, v. Frank Budasi, defendant in error.
    Gen. No. 38,816.
    Opinion filed November 4, 1936.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. Ungaro & Sherwood, for defendant in error.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Robert Pruitt, appellee, v. Adolph Staudenraus, appellant.
    Gen. No. 38,843.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.
    Arthur H. Jones, for appellant. James C. Byrne and Martin M. Gross, for appellee; James C. Byrne, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    The First National Bank of Chicago, appellee, v. Vito Marzano et al., on appeal of Peter Marzano, administrator de bonis non with the will annexed of the estate of Catherine Marzano, deceased, appellant.
    Gen. No. 38,513.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.
    Monahan & Monahan, for appellant. Tatge & Tatge, for appellee; Robert F. Kolb, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Karel Sup, appellee, v. Czech Ladies Benevolent Society, appellant.
    Gen. No. 38,526.
    Opinion filed November 4, 1936.
    Ring, Uhlir & Cuehna, for appellant; Otto E. Ring and Thomas M. Zasadil, of counsel Klayf & Sonnensehein, for appellee; Samuel G. Klayf, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Frank C. Rathje, appellant, v. Clarence Serb et al., appellee. Committee for the Protection of the Holders of the Foreman Trust and Savings Bank et al., appellant, v. Clarence Serb et al., appellees.
    Gen. No. 38,529.
    Opinion filed November 4, 1936.
    Levinson, Becker, Peebles & Swiren, Crowe, Gorman, Sheridan, Mulder & Wesselink and John C. Tucker, for appellants; Benjamin V. Becker and Don M. Peebles, of counsel: Melnerney, Epstein & Arvey, for certain appellee; John L. Mclnerney, Louis M. Mantynband and Sidney R. Zatz, of counsel. Shulman, Shulman & Abrams, for certain other appellee; Meyer Abrams, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Joseph P. Kornacke, administrator of the estate of Florence Kornatowski, deceased, appellant, v. Cornelius Blomseth and Arthur Anderson, appellees.
    Gen. No. 38,650.
    Opinion filed November 4, 1936.
    Royal W. Irwin, for appellant. Miller, Gorham, Wales & Adams, for appellees; Herbert C. DeYoung and Charles F. White, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Albert R. Brunker, substituted as plaintiff in lieu of Wrap-Rite Corporation, appellee, v. Greenlee Foundry Company, appellant.
    Gen. No. 38,575.
    Opinion filed November 4, 1936.
    MeNab, Holmes & Long, for appellant; Allan W. Cook and Joseph T. Scott, of counsel. Kelly & Pratt, for appellee; William M. Kelly and Will A. Kelly, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Oscar Albertine, appellee, v. Charles L. Osborn and Harry W. Osborn, trading as Osborn Bros., appellants.
    Gen. No. 38,588.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.
    Ogren & Cross, for appellants; Wesley P. Hanner, of counsel. Irving Holtzman and Samuel Ziv, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Leo Awotin, appellee, v. Michael Gabryel et al., defendants, on appeal of Adolf Dzialowy and Mary Dzialowy, appellants.
    Gen. No. 38,594.
    Opinion filed November 4, 1936.
    Harold 0. Mulks, for appellants. Ratner, Miller & Ratner, for appellee; David J. Ratner and George J. Miller, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Agnes Giesler, appellee, v. Chicago, Burlington and Quincy Railroad Company, appellant.
    Gen. No. 38,591.
    Opinion filed November 4, 1936.
    W. A. Morrow, J. C. James and C. W. Krohl, for appellant; Walter M. Fowler, of counsel. McKenna, Harris & Schneider, for appellee; James J. McKenna and Abraham W. Brussell, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Elsie Heide, appellee, v. Lincoln Furniture and Rug Company, Inc., and D. I. Eisenberg, appellant.
    Gen. No. 38,726.
    Opinion filed November 4, 1936.
    Alex M. Golman, for appellant; David F. Silverzweig, of counsel. Murphy O. Tate and Leo M. Tarpey, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Hartford Accident and Indemnity Company v. Federal Electric Company, James M. Gilchrist, agent. Federal Electric Company, James M. Gilchrist, agent, appellee, v. Harry Lang, appellant.
    Gen. No. 38,745.
    Opinion filed November 4, 1936.
    William Feldman, for appellant. Dana R. Simpson, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    J. P. Rogers, appellee, v. Maurice L. Cowen, appellant.
    Gen. No. 38,762.
    Opinion filed November 4, 1936.
    Erwin E. Cowen, for appellant. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Mariona Enzelis, appellee, v. Douisette Enzelis, since remarried and now known as Domicele Martisius, appellant.
    Gen. No. 38,776.
    Opinion filed November 4, 1936.
    William E. Rafferty, for appellant. M. J. Kossaek, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Harry Strom, plaintiff in error.
    Gen. No. 38,811.
    Opinion filed November 4, 1936.
    Frank A. McDonnell, for plaintiff in error; Elwyn E. Long, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Richard H. Devine, Melvin S. Rembe and E. I. Harrington, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Old Fort Dearborn Wine and Liquor Company, appellee, v. Old Dearborn Distributing Company, appellant.
    Gen. No. 38,978.
    Opinion filed November 4, 1936.
    Irving Breakstone and Irving Greenspahn, for appellant. Moses, Kennedy, Stein & Baehraeh, for appellee; Hamilton Moses, Stanley Morris and R. Weyand, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    George G. Cobean, appellant, v. Guy A. Richardson et al., appellees.
    Gen. No. 38,087.
    Opinion filed November 10, 1936.
    Allan J. Carter and Earl J. Walker, for appellant. Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for certain appellees; John R. Guilliams, of counsel. A. H. Brown, for certain other appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the

court.


text:
    Russell Firebaugh et al., appellees, v. Arthur F. Johnson et al., defendants, on appeal of Helge Erickson, appellant.
    Gen. No. 38,239.
    Opinion filed November 10, 1936.
    Ernest A. Eklund and Frederick J. Bertram, for appellant. Abrams, Sherman & Lewis, for appellee; Irving S. Abrams, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Matilda Yoelin, administratrix with the will annexed of the estate of Michael Gorskie, deceased, et al., appellees, v. John Kudla et al., defendants. Rozalia Kudla, appellant.
    Gen. No. 38,525.
    Opinion filed November 10, 1936.
    Rehearing denied November 24, 1936.
    Casimir R. Wachowski, for appellant. Estelle M. Wells, for appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Bernice Mottz, appellee, v. Paul Mottz, appellant.
    Gen. No. 38,571.

      Opinion filed November 10, 1936.
    Daniel S. Wentworth, for appellant. Teed, Kammermann & Johnson, for appellee; Hugh H. Johnson, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Rose Giannola, appellee, v. Great Northern Life Insurance Company, impleaded with Guarantee Trust Mutual Benefit Association, appellants.
    Gen. No. 38,593.
    Opinion filed November 10, 1936.
    Rehearing denied November 24, 1936.
    Helmer, Moulton, Whitman & Holton, for certain appellant; Charles R. Holton and Stuart C. Abbey, of counsel. Meyer A. Ginsburg, for certain other appellant. Harold J. Green and Irving Goodman, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, plaintiff, v. Equitable Trust Company of Chicago, defendant. First National Bank of Chicago and Garabed T. Pushman, appellants, v. William L. O’Connell, appellee.
    Gen. No. 38,651.
    Opinion filed November 10, 1936.
    Rehearing denied November 24, 1936.
    Sidney J. Wolf, for appellants. Roy D. Keehn and W. M. Keeley, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Walter Krolczyk, appellee, v. Heritage Coal Company, appellant.
    Gen. No. 38,681.
    Opinion filed November 10, 1936.
    Robertson, Chowe & Spence, for appellant; Burt A. Crowe, of counsel. Royal W. Irwin, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Biaggio Martino, appellee, v. City of Blue Island et al., appellants.
    Gen. No. 38,701.
    Opinion filed November 10, 1936.
    Rehearing denied November 24, 1936.
    W. Otto Wielgorecki, for appellants; Walter F. Briody, of counsel. Victor Frohlieh, for appellee; Julius H. Selinger, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Anthony Fortuna, administrator of the estate of Agnes Siwula, deceased, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 38,711.
    Opinion filed November 10, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Edmund J. Szumnarski, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Mary Teski, appellee, v. Continental Assurance Company, appellant.
    Gen. No. 38,725.
    Opinion filed November 10, 1936.
    George C. Bliss, for appellant. Milton H. and Edward W. Weiss, for appellee; Edward W. Weiss, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Palace Live Poultry Car Company, appellee, v. Alex Getz, appellant.
    Gen. No. 38,734.
    Opinion filed November 10, 1936.
    Parker, Block, Chisman & Hague, for appellant. Chapman & Cutler, for appellee; Dayton Ogden, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Xenophon Pavlos, appellant, v. Bert Carlson and Milton Adelman, appellees.
    Gen. No. 38,796.
    Opinion filed November 10, 1936.
    Sharp & Moyd, for appellant. No appearance for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Lithuanian Alliance of America, appellee, v. Home Bank and Trust Company et al., defendants. Theodore A. Poska, conservator of the estate of Felicia Poszka, insane, appellant.
    Gen. No. 38,834.
    Opinion filed November 10, 1936.
    Anthony A. Slakis, for appellant. Eugene D. Sullivan and George J. Menkas, for appellee; Kasimir P. Gugis and Abraham Miller, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    William M. Richards, appellee, v. Harry Kaplan, appellant.
    Gen. No. 38,520.
    Opinion filed November 10, 1936.
    H. J. Rosenberg and Henry A. Kalcheim, for appellant; Abraham Miller, of counsel. Sidney D. Komie and William G. Navid, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Jane Anne Slaughter, by E. M. Slaughter, her father and next friend, appellee, v. Exposition Gateway Parking Corporation et al., defendants. Exposition Gateway Parking Corporation, appellant.
    Gen. No. 38,611.

      Opinion filed November 10, 1936.
    Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. Packard, Barnes, MeCaughey & Schumacher, for appellee; Russell J. MeCaughey and Thomas H. Jolls, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Mary C. Brandl, appellant, v. Village of Winnetka, appellee.
    Gen. No. 38,792.
    Opinion filed November 10, 1936.
    Royal J. Schmidt and William N. Brady, for appellant. Tolman, Chandler & Dickinson, for appellee; Frederick Dickinson and Alex Bison, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Olga Shoukanoff, appellant, v. William C. Waldbauer et al., appellees.
    Gen. No. 38,861.
    Opinion filed November 30, 1936.
    James Percival Pio, for appellant. Pritzker & Pritzker, for appellees; Stanford Clinton, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Advance Heating Company, appellant, v. Catholic Bishop of Chicago, appellee.
    Gen. No. 38,986.
    Opinion filed November 30, 1936.
    Decker & Golden, for appellant. Charles J. Trainor, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Peter A. Meyer, appellant, v. Samuel A. Cohn, appellee.
    Gen. No. 39,020.

      Opinion filed November 30, 1936.
    Lederer, Livingston, Kahn, Adler & Adsit, for appellant; Harry H. Kahn and Archie H. Siegel, of counsel. Joseph J. Augustus, for appellee.
   Mr. Presiding Justice

Matehett delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    Richard L. Whitton, appellee, v. Outdoor Advertising Agency of America, Inc., appellant.
    Gen. No. 39,108.
    Opinion filed November 30, 1936.
    Deming, Jarrett & Mulfinger and H. S. Dunmire, for appellant. Patrick L. MeArdle and John E. Timm, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Otto W. Schlau, appellant, v. A. A. Mueller, appellee.
    Gen. No. 38,989.
    Opinion filed November 30, 1936.
    Siebel & Siebel, for appellant; A. E. W. Siebel and Arthur E. Siebel, of counsel. McCarthy & Toomey, for appellee; John E. Toomey and James C. O’Brien, Jr., of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: .Mr. Justice MeSurely

text:
    Alice Galter (Lighter), appellant, v. Louis Galter, appellee.
    Gen. No. 39,006.
    Opinion filed November 30, 1936.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Cohon & Goldstein, for appellee.
   .Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Ella Kolb, appellant, v. Gertrude Kolb, nee Gertrude Gabriel, appellee.
    Gen. No. 39,050.

      Opinion filed November 30, 1936.
    John 0. Wagner, for appellant. Turner & Turner, for appellee; Maurice Turner, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    George A. Giles, appellee, v. Grady and Neary Ink Company, appellant.
    Gen. No. 38,958.
    Opinion filed November 30, 1936.
    John J. Gorman, for appellant. George A. Bosomburg, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Peter G. DeMet, plaintiff in error.
    Gen. No. 39,040.
    Opinion filed November 30, 1936.
    W. G. Anderson, for plaintiff in error. Otto Kernel", Attorney General, for defendant in error; John H. Gately, Assistant Attorney General, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Harold F. Page, appellee, v. Charlotte C. Page, appellant.
    Gen. No. 39,053.
    Opinion filed November 30, 1936.
    Rehearing denied December 14, 1936.
    Cassels, Potter & Bentley, for appellant; Kenneth B. Hawkins, of counsel. Cohon & Goldstein, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The Mutual Life Insurance Company of New York v. Mary Kirby Bailey, as administratrix of the estate of William J. Bailey, deceased, and Margaret Ginley. Mary Kirby Bailey, appellant. Margaret Ginley, appellee.
    Gen. No. 39,090.

      Opinion filed November 30, 1936.
    Deming, Jarrett & Mulfinger, for appellant. Weinberg, Kjellander, 0 ’Farrell & Ames, for appellee; John J. Ames and Lewis Weinberg, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Anna Twohig et al., plaintiffs in error.
    Gen. No. 38,930.
    Opinion filed November 30, 1936.
    J. F. Tyrrell, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, and John F. Cashin, Jr., for defendant in error.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Per curiam.

text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Viola E. Wojcik and Mercedes S. Tuttle, plaintiffs in error.
    Gen. No. 38,945.
    Opinion filed December 2, 1936.
    Simon Herr, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, and Ditehburne & Lounsbury, for defendant in error.
   Per curiam.


text:
    Michael J. O’Malley, appellant, v. Charles J. O’Malley, appellee.
    Gen. No. 38,928.
    Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Caplow, Hallen & Caplow, for appellant; David H. Caplow and Julius Reznik, of counsel. Ben A. Stewart, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Ardashes Boroyan et al., appellees, v. Mamoog Monsesian et al., appellants.
    Gen. No. 38,618.
    Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Maurice R. Marehello, for appellants; Leo L. Donahoe, of counsel. Leflcow & Lefkow, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Jean S. Geary, appellee, v. The Great Atlantic and Pacific Tea Company, appellant.
    Gen. No. 38,632.
    Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Ashcraft & Ashcraft, for appellant; Russell F. Locke and Rufus D. Beach, of counsel. Milton Hart, for appellee; John F. Higgins, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Vasilios Demetropoulos, also known as William Demos, appellant, v. Albert J. Horan and William Ondreicka, appellee.
    Gen. No. 38,642.
    Opinion filed December 9, 1936.
    G. A. Buresh, for appellant. Vincent Magorien, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Ida E. McGrath, executrix of the last will and testament of John P. McGrath, deceased, appellee, v. Robt. Stevenson and Company, Inc., appellant.
    Gen. No. 38,628.
    Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Dent, Weichelt & Hampton, for appellant. Ryan, Condon & Livingston, for appellee; James G. Condon and John M. Tuohy, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Nicholas Tate for use of Regal Radio Manufacturing Company, Inc., appellant, v. Daniel Burkhartsmeier Cooperage Company, appellee.
    Gen. No. 38,702.
    Opinion filed December 9, 1936.
    Clarence A. Samuel, for appellant. Campbell, Clithero & Fischer, for appellee; R. D. Thomason and George W. Pierce, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellant, v. Gertrude Blanksten et al., appellees.
    Gen. No. 38,419.
    Opinion filed December 30, 1936.
    Rosenberg, Toomin & Stein and A. Edmund Peterson, for appellant; M. A. Gordon, of counsel. David Paley, for certain appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Samuel Skolnick, appellee, v. Eddie South, appellant.
    Gen. No. 38,755.
    Opinion filed December 30, 1936.
    Alva L. Bates, for appellant. Wilhartz, Hirsch & Sehanfarber, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    August A. Zavadil, appellee, v. Forrest H. Norris, executor of the estate of Albina P. Norris, deceased, appellant.
    Gen. No. 38,788.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Walter Hamilton, for appellant. J. H. Silver, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    John Wiedemeyer, appellee, v. Mrs. John Vivier and Municipal Employees’ Annuity and Benefit Fund of Chicago, defendants. Mrs. John Vivier, appellant.
    Gen. No. 38,826.
    Opinion filed December 30, 1936.
    Heile, Cavender, Milchrist & Kaiser and Charles Grossing Culver, for appellant; Charles Grossing Culver, of counsel. Marlunan, Dono van & Sullivan, for appellee; John A. O’Neil, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    George F. Barrett, appellee, v. Joseph Farina, Jr., and Yolanda Farina, appellants.
    Gen, No. 38,880.
    Opinion filed December 30, 1936.
    Abrams, Sherman & Lewis, for appellants; Irving S Abrams, of counsel. Barrett, Barrett, Costello & Barrett, for appellee; Chester D. Kern, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    International Filter Company, appellant, v. Allied Contractors, Inc., appellee.
    Gen. No. 38,911.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Mack, Wikoff & Ross, for appellant; Henry Glenn Ross and Paul E. Treuseh, of counsel. Socrates, Davis & Cohen, for appellee; Nicholas A. Socrates and Louis L. Cohen, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    P. Economakos for use of Amalgamated Trust and Savings Bank, appellant, v. The Live Stock National Bank of Chicago and Halsted Packing House, Inc., appellees.
    Gen. No. 38,919.

      Opinion filed December 30, 1936.
    Mandel Mendelson, for appellant. Ritsos, Solomon, Ritsos & Ritsos, for certain appellee; Zaek T. Ritsos, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    In re Petition of Katie Holub, appellee, v. Michael Paitl and Josephine Paitl, appellants.
    Gen. No. 38,956.
    Opinion filed December 30, 1936.
    William S. Kleinman, for appellants. No appearance for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Cora B. Spencer, appellant, v. City of Chicago, appellee.
    Gen. No. 38,984.
    Opinion filed December 30, 1936.
    Leopold Saltiel, for appellant. Barnet Hodes, Corporation Counsel, Alexander M. Smietanka and Joseph J. Sullivan, Assistant Corporation Counsel, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Peter L. Evans, plaintiff, v. Worthie W. Haynes et al., defendants. Peter L. Evans, appellant, v. Wilbur E. Howett et al., appellees.
    Gen. No. 38,993.
    Opinion filed December 30, 1936.
    Harry A. Carlson, for appellant. No appearance for appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Elsa Hookanson, appellee, v. Chicago City Bank and Trust Company, appellant.
    Gen. No. 39,211.
    Opinion filed December 30, 1936.
    Rathje, Hinckley, Barnard, Kulp & Tucker, for appellee; Francis E. Hinckley, of counsel. Clyde L. Todd, for appellee; Lee D. Mathias, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Polish Women’s Alliance of America, appellant, v. Stefan Machalski et al., appellees.
    Gen. No. 38,783.
    Opinion filed December 30, 1936.
    Edward E. Fleming, for appellant. Maximilian J. St. George, for certain appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Underwood Veneer Company, appellee, v. Fader Machinery Company, appellant.
    Gen. No. 38,809.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Benjamin S. Mesirow, for appellant; Julius M. Lorenz, of counsel. Alden, Latham & Young, for appellee; William Tracy Alden and Francis J. Naphin, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.