author: Mr. Justice O’Connor

text:
    Lawrence J. Kelly and Lawrence J. Kelly, Jr., by Lawrence J. Kelly, His Father and Next Friend, Plaintiffs. Lawrence J. Kelly, Appellee, v. Thomas Powers et al., Defendants. Thomas Powers, Appellant.
    Gen. No. 40,713.
    Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Geoffrey Fleming, of Chicago, for appellant.
    Loesch, Scofield, Loesch & Burke, of Chicago, for appellee; H. Don Reynolds, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Lawrence J. Kelly, Jr., brought an action to recover damages sustained by him through the claimed negligence of defendants in driving a truck. His father, Lawrence J. Kelly, also joined in the suit with the son, claiming he had sustained damages for moneys paid doctors, nurses, etc., growing out of the injury of his son. At the close of plaintiffs’ case there was a directed verdict in favor of defendant, The Great Atlantic & Pacific Tea Company. The jury returned four other verdicts. By two of them they found defendant, Lawrence Powers, not guilty as to each of the plaintiffs; by another, defendant, Thomas Powers, was found not guilty as to plaintiff, Kelly, Jr., and the fourth verdict found defendant Thomas Powers guilty as to the father, Lawrence J. Kelly, and assessed the damages at $500. The verdicts were' returned December 9,1938, and judgment entered on them on the same day. Afterward defendant, Thomas Powers, filed three motions, (1) for a new trial, (2) in arrest of judgment, and (3) for a judgment notwithstanding the verdict. January 5 following, the court entered an order overruling the three motions. And January 17, 1939, defendant, Thomas Powers, filed his notice of appeal from the order overruling his three motions.

In this court counsel for Thomas Powers says, “The only question before this Court is whether or not the trial Court erred in overruling or denying this defendant’s motion for judgment non obstante veredicto and whether the judgment entered on the verdict against Thomas Powers and in favor of Lawrence J. Kelly for $500 should stand. We do not seek a new trial.” Lawrence J. Kelly, Jr., in his complaint, alleges that he was 12 years of age and defendant, Lawrence Powers, 13 years old; that The Great Atlantic & Pacific Tea Company owned a Plymouth coupe and employed defendant, Thomas Powers; that they permitted defendant, Lawrence Powers, the son of Thomas Powers, to drive the automobile; that it was unlawful for one under 15 years of age to drive a motor vehicle unless accompanied by an adult; that any person violating the statute not otherwise declared to have committed a felony, was guilty of a misdemeanor and that anyone who aids or abets in the commission of any act declared by the statute to be a crime, shall be guilty of such offense; and further that the statute made it unlawful for the owner or any other person knowingly to permit a motor vehicle upon the highway contrary to the statute. The complaint then alleges that certain ordinances of Chicago concerning parking and operation of automobiles, were in force and effect at the time in question; that it became the duty of defendants, Thomas Powers and The Great Atlantic & Pacific Tea Company “not to have Lawrence Powers as their agent and servant in the possession, maintenance and operation” of the automobile, without being accompanied by an adult; that it was the duty of defendant, Lawrence Powers, not to operate the automobile unless accompanied by an adult; that defendants, Thomas Powers and the Tea Company, disregarded their duties and permitted defendant, Lawrence Powers, to drive the automobile, and that plaintiff, Kelly, Jr., at the invitation of defendant, Lawrence Powers, stepped on the running board of the automobile which was being driven by Lawrence who suddenly stopped it, as a result of which Kelly, Jr., was thrown and injured.

Count 2 of the complaint set up that plaintiff, Lawrence J. Kelly, the father, sustained damages by incurring doctors’, nurses’ and hospital bills, etc., on account of his son’s injuries.

We have but the common law record before us and counsel for plaintiffs contend that since defendant’s motion for a judgment notwithstanding the verdict is only shown in the common law record the point made by defendant cannot be considered for the reason that the proper place for such a motion is in the report of the proceedings of the trial. This is no longer the law. Section 74, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.074], provides:

“All distinctions between the common law record, the bill of exceptions and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are hereby abolished. The trial court record shall include every writ, pleading, motion, order, affidavit and other document filed or entered in the cause and all matters before the trial court which shall be certified as a part of such record by the judge thereof. All matters in the trial court record actually before the court on appeal may be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable.” And Rule 36 of the Supreme Court [Rule 1, of this court], provides : “ (4) A claim that any matter in the trial court record actually before the court on appeal is not properly authenticated may be raised only by motion filed . . . before or at the time of filing his brief. Such motions shall be subject to the provisions of Rule 49, and each motion shall be supported by affidavit showing, not only that the matter complained of is not properly authenticated, but that it is in fact incorrect, and that injury will result to the objecting party because of its inclusion. Unless a motion is made in the manner required by this rule, the record shall be deemed to be correct.”

Counsel for plaintiffs, before "filing their brief, made a motion to strike certain matters from the record because they were not properly authenticated. The motion was denied and although the same matters are urged in the brief, they would not be referred to in this opinion' had not counsel contended that this court in Janelunas v. Chicago Fraternal Life Ass’n, 286 Ill. App. 219, and Burns v. Kims, 290 Ill. App. 278, had held that section 74 of the Civil Practice Act had not changed the law. There is no such holding in either of these cases. In the Janelunas case we said that the orderly and proper way to prepare a record was to include the instructions in the report of the proceedings of the trial and not in the common law record. And this was again stated in the Burns case, but we did not hold or say that if the instructions or any other matter that properly belonged in the report of the proceedings of the trial was in the common law record, that we would not consider them as being before us. Before the enactment of section 74 of the Civil Practice Act, many cases were disposed of oh a technicality because certain matters did not appear on the right page of the record and often worked a miscarriage of justice. It was to remedy this evil that section 74 was enacted. And the rule of court above quoted from further provides that unless the record was in fact incorrect, and the party objécting injured, further authentication of the record would not be required. In the instant case there is no contention that the record is incorrect, in which case it is, and ought to be our duty to pass upon the record before us.

Defendant contends that the jury, having found Thomas Powers not guilty as to Lawrence J. Kelly, Jr., therefore Thomas Powers is not liable to Lawrence J. Kelly, the injured boy’s father, for the expenses he sought to recover under count 2 of the complaint and on which the judgment appealed from was entered. We think this contention must be sustained. Greenberg v. Chicago Cab Co., 274 Ill. App. 666 (Abst.); Billstrom v. Triple Tread Tire Co., 220 Ill. App. 550; Larson v. Hines, 220 Ill. App. 594.

In the Greenberg case, suit was brought against the cab company and the driver of the cab to recover for personal injuries claimed to have resulted from the negligence of the driver. The jury returned a verdict finding the cab company guilty and assessing plaintiff’s damages at $21,250 and finding the driver not guilty. On appeal to this court by the cab company, we reversed the judgment and said that plaintiff’s case was based on the negligence of the driver of the cab and that it was claimed that the cab company was liable under the doctrine of respondeat superior. We there said: “since the jury by its verdict found the driver of the cab not guilty and judgment having been entered on the verdict and no appeal having been taken, the judgment is conclusive? in favor of the defendant cab company. It is obvious that if the driver of the cab was not guilty of negligence in driving the cab at the time in question, the defendant cab company could not be held liable on the doctrine of respondeat superior. Chicago Tel. Co. v. Hayes, 121 Ill. App. 313 [affirmed 218 Ill. 414]; Anderson v. West Chicago St. R. R. Co., 200 Ill. 329; Billstrom v. The Triple Tread Tire Co., 220 Ill. App. 550.”

In the instant case the jury found that neither Thomas Powers nor his son, Lawrence, was guilty of any negligence which proximately caused the injury to Kelly, Jr., and since judgment was entered on the verdict we think it follows that Lawrence J. Kelly is not entitled to recover against Thomas Powers for the expenses he incurred on account of his son’s injuries. The verdicts are clearly inconsistent. But plaintiffs further contend that the complaint alleges the violation of the statute by Powers, Sr., in that he “permitted his minor son t„o operate an automobile as his agent, contrary to law,” and that the verdict and judgment against Powers, Sr., indicates that the jury found the proximate cause of the occurrence was that Powers, Sr., permitted his son to drive the automobile contrary to law. In support of this Graham v. Page, 300 Ill. 40; Union Bank of Chicago v. Kalkhurst, 265 Ill. App. 254; Partridge v. Eberstein, 225 Ill. App. 209; Browne v. Siegel, Cooper & Co., 90 Ill. App. 49, are cited.

In the Graham case it was held that the owner of an automobile was liable for the injury caused by the negligent driving of the car by his minor son where the car is kept for family use but the liability rests upon the principle of agency. To the same effect was the holding in the Kalkhurst case. In those two cases the liability was based on the negligence of the drivers, but in the instant case, the jury found that the son driving the car was not guilty of negligence. The Partridge case involved the question of the right of way at street intersections and is not in point here. In the Browne case, a person was killed through the claimed negligence of the defendant in failing to lock an elevator door. We think that case is not in point.

By the verdicts of the jury and the judgment of the court Lawrence Powers, who was driving the car in question, was adjudicated to be not guilty of negligence which brought about the injuries to plaintiff and the consequent expenses. The judgment in the instant case cannot stand.

For the reasons stated, the judgment of the superior court of Cook county is reversed.

Judgment reversed.

Matchett, P. J., and McSurely, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Toman, Successor to Joseph L. Gill, Appellant, v. Park Castles Apartment Building Corporation, Appellee. Metropolitan Life Insurance Company, Cross Appellant and Appellee.
    Gen. No. 40,732.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed January 22, 1940.
    Rehearing denied February 5, 1940.
    Thomas J. Courtney, State’s Attorney, for appellant ; Marshall V. Kearney, Jacob Shamberg and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel.
    Follansbee, Shorey & Schupp, of Chicago, for appellee Metropolitan Life Insurance Company; Mitchell D. Follansbee and Frederic Barth, both of Chicago, of counsel.

      Marshall & Marshall, of Chicago, for appellee Park Castles Apartment Building Corporation; Maurice Gr. Shan berg, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

July 10, 1933, the County Collector of Cook county filed a complaint in the county court of Cook county, praying that he be appointed receiver of certain improved real estate in Chicago to collect the rents and apply them to the unpaid taxes levied against the property. An order was entered 13 days thereafter as prayed for. The County Treasurer entered upon the discharge of his duties as receiver and collected the rents from the date of his appointment, July 23, 1933 to July 23, 1934, during which period he collected $38,-885.47, out of which he disbursed “$17,513.87 for miscellaneous expenses” and applied $9,564.24 to the payment of delinquent taxes and penalties, leaving remaining in his hands $11,807.36.

The proceeding was brought under the Skarda Act passed by the legislature in 1933 (Laws of 1933, p. 873), and on June 20, 1934, the Supreme Court held that county courts did not have jurisdiction of such proceedings because they were not specifically mentioned in the act but jurisdiction was in courts of chancery. McDonough v. Gage, 357 Ill. 466.

June 27, 1934, seven days after the Supreme Court handed down its opinion, the cause was transferred to the circuit court of Cook county where a petition was filed by the County Collector, by which court the County Collector was appointed under the provisions of the Skarda Act and continued until April 14, 1935. In 1935 the legislature passed an act in lieu of the Skarda Act which, among# other things, authorized the county court to appoint the County Collector receiver for delinquent property to collect the rents, etc., and apply them in payment of the taxes levied against such property. (Laws of 1935, p. 1166.) Pursuant to this act the County Collector, on December 3,1935, filed his petition in the county court setting up the necessary facts and he was appointed receiver of the property. February 10, 1936, the Park Castles Apartment Building Corporation, the owner of the property which was made a defendant, filed its answer which, among other things, averred that the County Collector or his agent had on hand, from rents collected as receiver, more than sufficient to pay the taxes in default. More than a year afterward, February 15, 1937, an order was entered by the county court granting leave to the Metropolitan Life Insurance Company to file its “special and limited” appearance which was accordingly done the same day in which it questioned the jurisdiction of the county court to make any order as to the disposition of the rents derived from the property and averred that it was the owner of a note made by the Building Corporation June 15, 1929, for $500,000 which was secured by a trust deed on the property and that the rents were pledged as security for the indebtedness as well as the property; that on February 28,1934, it had filed its bill in the superior court of Cook county to foreclose the lien of the trust deed which suit was still pending, where it made a motion for the appointment of a receiver and that court on April 12, 1934, entered an order which recited that the premises were in charge of the County Collector who had theretofore been appointed receiver by the county court of Cook county; that the insurance company intended to pay the balance of the delinquent taxes and to have the tax receiver discharged; that the building corporation desired to again take possession of the property after the delinquent taxes were paid and the tax receiver surrendered possession, and was willing to furnish a bond in lieu of the appointment of a receiver and when the building corporation had collected the rents and after deducting necessary expenses it would turn over a sum sufficient to reimburse the insurance company for moneys it had advanced toward the payment of the delinquent taxes and the balance to the insurance company to be applied on the indebtedness. The order further recited how the property was to be managed by the building corporation, etc. Other matters were set up in the special and limited appearance tending to show the history of what had taken place in the management of the property, including correspondence passing between counsel for the parties.

April 6, 1937, the insurance company filed its verified petition in the county court proceeding stating that in view of the facts set up in its special and limited appearance, that the superior court having first acquired jurisdiction, the matter should there remain in accordance with the order of that court, which it was alleged fixed the rights of the parties to the funds collected by the County Collector; and further that the building corporation was a party to the foreclosure suit and had elected to take the benefits of the order of April 12, 1934. The petition further set up that if the county court made any disposition of the funds in the hands of the tax receiver, the order should provide that they be paid to the insurance company to be applied on account of the indebtedness due it from the building corporation.

April 21, 1937, the county court entered the order from which this appeal is prosecuted. It recites that the cause came on to be heard upon motion of attorneys for the building corporation, due notice having been given to all parties in interest; that the court had “read and considered the various petitions and reports filed by the County Treasurer . . . and the objection of . . . the Building Corporation to the various reports filed by the County Treasurer . . . and the court having heard evidence in open court, . . . and after full and complete hearing, . . . and the parties, by their respective attorneys having stipulated in open court, that this court shall take jurisdiction of the entire receivership cause . . . from July 10, 1933 to the date of the entry of this order, and having jurisdiction of the parties and the subject matter, Finds.” The order then continues and takes up about 15 pages of the abstract. It sets forth all that had taken place in the various steps, some of which we have mentioned. Some of the findings are that after the tax receiver was appointed July 10, 1933, he employed an agent to collect the rents and manage the property; that the receiver filed monthly reports of the receipts and disbursements for 10 consecutive months in each of which there was a deduction from the rent collected to pay the renting agent for services rendered, after which the court finds that the disbursements made by the receiver, including what was paid to the renting agents, were made without receiving-authority from the court, and objections were sustained to all of the disbursements. The court continuing- finds that on September 27, 1934, the receiver filed his report showing that he had on hand $10,425.72, which he wrongfully retained in the meantime permitting penalties to accrue.

The order then finds that a number of similar proceedings brought under the Skarda Act were transferred to the circuit court where the County Treasurer was again appointed receiver of the property; that he also appointed the same managing agent of the property but no order authorizing such appointment was made. The court then finds the filing of the petition in the instant case in the county court and the stipulation of all the parties to reinvest that court with jurisdiction of the entire matter.

The court further finds that on August 31, 1934, the receiver had enough money on hand to pay the taxes in full including penalties and at that time the receiver should have been discharged but that he failed to make report to the court and therefore he was not entitled to have any compensation for acting as receiver after that time; that from July 27, 1933, to July 3, 1934, the receiver had collected $38,885.47 in rents “and during said period disbursed (exclusive of taxes) ” $17,-513.81; that he still had in his hands $11,807.36 although all taxes and penalties had been paid in full. (It does not appear from what source the money came that was used to pay the taxes.)

The order then finds the several amounts that the receiver is ordered to pay to the building corporation. No mention is made in the order of any claim made by the insurance company nor is it referred to in any way except that at the time the order, signed by the judge, was entered the insurance company and the receiver’s renting agent objected and excepted.

Afterward the County Treasurer moved to vacate the order or judgment of the county court and the matter was continued from time to time and finally overruled December 6, 1938. Seventeen days thereafter, the County Treasurer served notice of appeal and filed a praecipe for record. February 14, 1939, the insurance company filed notice of a cross appeal.

The evidence heard by the trial court is not in the record.

The County Treasurer, as receiver, contends that the “judgment exceeds the statutory authority vested in the County Court in tax receivership matters; . . . that the trial court had no jurisdiction in this cause to inquire into the proceedings had in two prior receiverships, one in this court and the other in the Circuit Court.”

■ So far as we are able to find, no argument is made in the opening brief of the County Collector in support of the contention that the county court did exceed the statutory authority except that counsel say the order appealed from (awarding’ the money in the tax receiver’s hands and penalizing the receiver for not obtaining authority to employ a renting agent and for not paying the taxes more promptly) is not within the pleadings in the case. But in his reply brief it is argued that the county court had no jurisdiction to inquire into the two prior proceedings. There is no complaint made as to any of the items charged against the tax receiver. We think there is no merit in the first contention for the reason that, so far as the record discloses, no suggestion was made by counsel that what the court did was not within the pleadings. In these circumstances, no such contention can now be made. (Ill. Rev. Stat. 1939, sec. 42, ch. 110 [Jones Ill. Stats. Ann. 104.042].) That section provides:

“ (3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived. ’ ’

Nor is there any merit in the contention that the court had no jurisdiction to inquire into the two prior proceedings. The order of the county court appealed from expressly states that “the parties, by their respective attorneys have stipulated in open court, that this court shall take jurisdiction of the entire receivership cause and the subject matter from July 10, 1933, to the date of the entry of this order.” In these circumstances, counsel will not now be permitted to stultify themselves and say the court was not warranted in disposing of the two prior matters. Moreover, we think, neither contention can be sustained. The money was in the hands of the receiver of the court and it was the court’s duty to dispose of it and wind up the receivership. The Act of 1935 authorized the county court to appoint a tax receiver in the instant case.

The insurance company contends that the moneys in the hands of the receiver should have been awarded to it to apply on the mortgage indebtedness and not to the building corporation. We think there is merit in this contention as to the rents collected by the receiver after the order of April, 12, 1934 was entered in the proceeding in the superior court. In that case the insurance company applied for a receiver, as above stated, and the order in effect sequestered the rents from that time and should be applied in payment of the mortgage indebtedness. Goodman v. Heinen, 291 Ill. App. 19. From the record we are unable to determine the amount of the rents collected after the entry of the order by the superior court and for that reason that part of the order awarding the rents to the building corporation is reversed and the matter remanded to the county court with directions to determine the amount of the rents collected since the entry of the order by the superior court. In all other respects the decree will be affirmed.

Reversed in part, affirmed in part and remanded with directions.

Hatchett, P. J., and HcSurely, J., concur.


text:
    Hermann A. F. Grau, Appellant, v. Travelers Insurance Company of Hartford, Connecticut, Appellee.
    Gen. No. 40,741.
    Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Rehearing denied February 5, 1940.

      Hermann P. Haase, of Chicago, for appellant.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; David Jacker and William H. Symmes, Jr., both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 24, 1937, plaintiff brought an action against defendant to recover $2,700 claimed to be due under a policy issued to him by defendant. At the close of plaintiff’s case there was a directed verdict in favor of defendant, and plaintiff appeals.

The record discloses that on the 7th of September, 1918, defendant issued its policy insuring plaintiff “against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means.” The policy also contained the following provision: “If such injuries, independently and exclusively of all other causes, shall wholly and continuously disable the Insured from the date of accident from performing any and every kind of duty pertaining to his occupation, The Company will pay, so long as the Insured lives and suffers such total disability, a weekly indemnity of $25.”

It was alleged in the complaint that plaintiff on December 3, 1935, while the policy was in effect, met with an accident and the injuries he received “did wholly and continuously, and permanently disable the Plaintiff from performing any and every kind of duty pertaining to his occupation”; that defendant paid plaintiff $37.50 on account of the injuries he sustained and that there was a balance due of $2,700.

Among other things, defendant in its answer denied on information and belief that plaintiff was wholly and continuously and permanently disabled from the injuries he received, denied it paid the $37.50 on account but averred that it paid that sum in full payment and obtained a release from plaintiff.

Defendant contends that the court properly directed a verdict in its favor at the close of plaintiff’s case because the evidence showed that plaintiff was .not “wholly and continuously disabled from the date of the accident from performing any and every kind of duty pertaining to his occupation”; and that the injuries plaintiff received did not independently and exclusively of all other causes, disable him because the evidence shows the accident merely aggravated a preexisting disease.

Plaintiff testified that December 3, 1935, he was employed at the McCormick works of the International Harvester Company, as a draftsman and in doing his work was sitting on a high stool, which broke and he was severely injured, the end of his spine coming in contact with the chair when he fell; that the accident happened about two o’clock in the afternoon and shortly thereafter he continued his work for the rest of the day; that he did not go to work the next morning but did so in the afternoon of that day in response to a call from the chief draftsman; that he went to his own doctor who gave him some pills which he took and some time in December had X-ray pictures taken. Plaintiff further testified that after the 4th of December, the day after the accident, he stayed home two days of the next week and returned to work on Wednesday the 11th, and worked the balance of that week and that the next week he was away from his work for two days, and then worked the balance of that week; that he was next away from work on December 30 and 31, and January 1 and 2, after which he went to work and worked until January 20. He was off that day and the next day, and from that time he worked until February 14, when he caught a cold; that he had pains every day from the time he was hurt and from February 14, he stayed home 10 days and stayed in bed; that he could not stand the pain; that he went back to work on Monday when it was 20 degrees below zero; that he was called to the office of the master mechanic; “he gave me a big spiel, and asked me what was wrong,” and said that if I lost any more time he would put somebody else in my place, and plaintiff replied: “If you feel about it that way, Mr. Potts, you may just as well look after another man right now”; and that he had not worked since; that he had trouble with his back, hips and swelling of the leg.

Dr. Perry testified that he made an examination of plaintiff in March, 1938, and had X-ray pictures taken. He further testified that he found plaintiff was suffer-' ing from arthritis, etc. Dr. Fahlstrom also testified that plaintiff had a latent arthritis prior to the accident and that the accident inflamed the dormant arthritis.

Plaintiff cites authorities under the Workmen’s Compensation Act to the effect that latent diseases which are excited or accelerated by reason of some bodily injury constitute a personal injury which arose out of his employment, within the meaning of that act. We think it clear those authorities are not applicable here. Counsel for plaintiff, in his brief, also says: “We believe that . . . Defendant . . . will agree that the only issue involved in this case is whether or not the injuries caused by the accident which plaintiff sustained on December 3, 1935, independently and exclusively of all other causes, wholly and continuously disabled the Plaintiff from the date of the accident from performing any and every kind of duty pertaining to his occupation.” Counsel then discusses the pleadings but we think no question arises on the pleadings because no such question was raised in the trial court. (v. Rev. Stat. 1939, ch. 110, sec. 42 [Jones Ill. Stats. Ann. 104.042].)

We think the statement of counsel for plaintiff, which we have quoted, states the controlling question in the case. Plaintiff’s own testimony shows that after plaintiff was injured he worked approximately 41 days out of 55 over a period of 11 weeks. In this state of the record, we think it obvious that plaintiff was not “wholly and continuously disabled from the date of the accident” and therefore the court did not err in directing a verdict. Coburn v. Maryland Casualty Co., 224 Ky. 377; Irwin v. Travelers’ Ins. Co., 277 N. Y. S. 724. In the latter case, plaintiff sued to recover under an accident policy which contained a provision similar to the one in the case at bar. The court said: “Do these policies cover a recurrent period of disability . .

“The above-quoted clause provides for indemnity for disability, ... It requires that the disability, independently of all other causes, 'shall wholly and continuously disable the Insured from the date of accident from performing . . . duty pertaining to his occupation. . . . ’ This language excludes indemnity for disability suffered in a second period (following one in which there has been no disability) . . . This is the plain effect of language [of the policy] obviously designed to limit indemnity to a continuous period of disability so as to avoid litigation with respect to the cause of a disability claimed to have recurred.” The court continuing said that the language of the policy was clear and unambiguous and would be enforced as written.

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

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Justice Huffman

text:
    Lottie A. Mack, Appellee, v. Woman’s Club of Aurora, Appellant.
    Gen. No. 9,425.
    Heard in this court at the February term, 1939.
    Opinion filed January 8, 1940.
    Rehearing denied February 6, 1940.
    Beamish, Edwards & Brunnemeyer, of Aurora, for appellant.
    Lord & Parker, of Aurora, for appellee; Maurice F. Lord and Gilbert L. Wood, both of Aurora, and Zalmon S. Goldsmith, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This was an action by appellee against appellant for personal injuries sustained in a fall on the clubroom floor of appellant’s building. Appellee was a woman of advanced years. While attending a meeting at appellant’s clubroom in the city of Aurora, she slipped and fell on the waxed floor, thereby sustaining a broken hip. She instituted this action for damages, claiming that appellant was negligent in having the floor waxed, which thus rendered it, “slippery, dangerous, and unsafe.” The case was tried by jury, which returned a verdict in favor of appellee for $3,500. Appellant prosecutes this appeal from judgment rendered on the verdict.

This case was first submitted to this court at its February term, 1939. The appeal was dismissed because the abstract of the record failed to show any entry of judgment.' On petition for rehearing, it appeared that entry of judgment had been made. The petition for rehearing was therefore granted.

The clubroom floor of appellant’s building is what is commonly called a hardwood floor, being constructed of hard maple. In extent, it was about 65 by 70 feet. It was kept cleaned and waxed in a manner common to such floors. The clubroom was in general use by the members of the Woman’s Club of Aurora, and in addition to this, it was rented to other organizations, one of which was the Woman’s Alliance, to which appellee belonged. Some of the organizations to which the clubroom was rented were social in character and used the same for dancing and other social functions.

Appellee states that she had been a member of the Woman’s Alliance, and president thereof, for 40 years; that the society had been holding its meetings twice a month in appellant’s clubrooms, for a period of more than two years; that she came to the meeting on May 28, 1936, at about 11 o ’clock in the morning, carrying a basket which contained dishes and her luncheon; that upon reaching the clubroom floor, she started to walk toward the kitchen; and that she had not gone very far before she slipped and fell. She says that she was gtunned by the fall but did not feel any pain at the time; that a doctor was called and advised that she be taken to the hospital. Her experience at the hospital was usual to that of a person with a broken hip. She says she had been accustomed to attending the meetings at this clubroom and that she saw nothing unusual or different about the floor on this morning. She says she does not think she was looking at the floor as she was walking toward the kitchen, but that she thinks she felt a patch of wax as she slipped and fell. She further says she did not know of the slippery condition of the floor and that no signs or warnings were posted to advise her that the floor was waxed.

Three club members, who were present and saw the accident, testified for appellee. Their testimony is to the effect that appellee fell about the center of the clubroom floor; that as she was walking across the floor, “her feet went out from under her, and she fell like a flash.” None of these witnesses noticed anything unusual in the condition of the floor that morning. Their testimony is to the effect that the floor was clean and waxed. One of the witness stated that there were marks on the floor where appellee’s feet had slipped; that they looked like marks made by the heels of her shoes, and that the wax was scraped at the places of such marks. Another of her witnesses states, that her movements were “quick and she walked briskly.’ ’ The testimony of appellee’s witnesses is to the effect that they did not observe anything different about the floor on that morning from other times; that they knew it was waxed and slippery; that the room was well lighted; and that appellee was in the habit of attending the meetings of the organization at this place.

The janitor of the building testified for appellee. His evidence discloses that he kept the floor clean and suitable for use; that.it was free from obstructions; that he saw nothing different in the condition of the floor where appellee fell, than in other places thereon; and that he was present at the time of the accident and assisted in taking care of appellee.

The waxing of floors of this character is a common practice, and too well-known to be considered negligent in the absence of evidence tending to prove some positive negligent act or omission on the part of the owner of the premises, which contributed to the injury. Ap-pellee was acquainted with the clubroom. She had been accustomed to meeting there twice a month for over two years. Whatever risks were involved with her use of the floor were obvious ones and such as were incident to each of her former visits to the clubroom, and common to every other member of the club. Under such circumstances, she must be held to have assumed any risks involved in her walking upon the floor, which were within themselves an incident to such act. There appears to have been no hidden danger.

Appellant was under the continuing duty to see that the clubroom was reasonably safe for the uses and purposes to which it was to be put, such duty arising from the rule requiring it to exercise reasonable care to the end that the clubroom should be safe for the benefit of those using same;

We do not consider it was negligent per se for appellant to have the clubroom floor cleaned and waxed, nor that such act served to charge appellant with the duty of anticipating that one in the exercise of ordinary care, would be exposed to danger when using the floor in a manner for which it was intended. Under the circumstances existing herein, we do not consider appellant’s keeping the floor cleaned and waxed to be a condition sufficient to warrant a finding that appellee’s fall was caused by its negligence.

Since the evidence in this case does not appear to be in dispute, the judgment is reversed.

Judgment reversed.


author: Mr. Justice Hufeman

text:
    Wallace Grain and Supply Company, Appellee, v. C. C. Cary, Appellant.
    Gen. No. 9,490.
    Heard in this court at the October term, 1939.
    Opinion filed January 8, 1940.
    Rehearing denied February 6, 1940.
    C. B. Chapman, of Ottawa, for appellant.
    R. A. Green and H. L. Rioholson, both of Ottawa, for appellee.
   Mr. Justice Hufeman

delivered the opinion of the court.

Appellee filed this suit in assumpsit against appellant, to the October term, 1932, of the circuit court of LaSalle county. The declaration consisted of the common counts to which appellant filed the general issue. A trial by jury was had resulting in a verdict for appel-lee in the sum of $817.33. The verdict was returned at the January term, 1934, of said court. No motions were filed by the defendant. No rendition of judgment was made by the court upon the verdict, and consequently no entry of a judgment by the clerk upon the records of the court. This situation continued until the January term, 1939, when upon motion by appellee for rendition of judgment on the verdict, the court then for the first time rendered judgment. Appellant, by special and limited appearance, made motion that the judgment thus rendered be vacated, on the ground that the court had lost jurisdiction. Appellant’s motion was denied and this appeal follows.

Rendition and entry of a judgment are separate acts and different in their nature. The rendition of a judgment is a judicial act, and must be first in the order of time. Its entry upon the record is merely a ministerial act performed by the clerk. Blatchford v. Newberry, 100 Ill. 484, 489, 490; Hunter v. Empire State Surety Co., 191 Ill. App. 634; Phelps v. Hunter, 195 Ill. App. 181.

Since the rendition of a judgment is a strictly judicial act, it can be performed only at a time at which such judicial action is proper under the law. An attempt to render "a judgment at any other time would be an act done without jurisdiction and therefore void.

The rule is well established that a court loses jurisdiction of a judgment after expiration of the term at which such judgment was rendered. People v. Petit, 266 Ill. 628, 632, 633; Rathje v. Waterlohn, 270 Ill. 640, 645; People v. Windes, 275 Ill. 108, 112, 113.

It is also a well established rule that a judgment nunc pro tunc cannot be entered at a subsequent term unless, in fact, the judgment was rendered at a previous term and not entered of record through some neglect or oversight. In such cases, the fact' that the court did render judgment at the previous term, must appear by some memorial paper or minute of record made at such former term. Stein v. Meyers, 253 Ill. 199, 205; Brown v. Hamsmith, 247 Ill. App. 358, 363, 364.

In view of these two rules, and the circumstances existing in this case, it appears obvious that the court was powerless at the January term, 1939, to render judgment at the January term, 1934. As stated by the second of the above rules, even though a judgment at a previous term has been rendered, it is necessary that a memorial paper or court minute thereof, appear of record, to enable the court, at a subsequent term, to order entry of such judgment.

In this case a general verdict of the jury was returned in favor of appellee and against appellant, in the assumpsit suit tried in 1934. No motions or steps of any kind were taken by the defendant (appellant) following the return of the verdict. The court made no rendition of judgment. The term of court was permitted to lapse. A period of five years has intervened since the return of the verdict. Such lapse of time is unreasonably great. The purpose of rules of this character is not merely to place judgments within the same effective period, upon an equality, but it is of importance otherwise. The interest of society demands that there should be a termination to a controversy, otherwise, rights of innocent third persons may arise which would be adversely affected.

The interruption of judicial proceedings for a period of time such as exists in this case, when the action was ready for the rendition of a final judgment, serves to divest the court of jurisdiction.

Theréfore, the judgment rendered is void and should be reversed.

Judgment reversed.


author: Presiding Justice Dove.

text:
    Alice Fleming, Appellee, v. City of Rockford, Appellant.
    Gen. No. 9,452.
    Heard in this court at May term, 1939;
    opinion filed November 8, 1939;
    rehearing denied February fi, 1940.
    A. Y. Essington and Carroll H. Nelson, for appellant; William H. Barriek, of counsel; William D. Knight, for appellee.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.’’


author: Justice Dady.

text:
    Ed Ridgway, Administrator of Estate of William Ridgway, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.

      Heard in this court at May term, 1939;
    original opinion filed November 8, 1939;
    modified opinion filed and rehearing denied January 22, 1940.
    Kramer, Campbell, Costello & Wiechert, for appellant; E. C. Craig, V. W. Foster and Charles A. Helsell, of counsel; A. D. Morgan and Baker, Lesemann, Kagy & Wagner, for appellee.
   Opinion by

Justice Dady.

“Not to be published in full.”


author: Justice Dove.

text:
    Emma Adolphson, Appellee, v. Richard Russell, Appellant.
    Gen. No. 9,365.
    Heard in this court at October term, 1938;
    opinion filed December 15, 1939;
    rehearing denied February 6, 1940.
    Thomas J. Welch, Ralph Dempsey and P. A. D’Arcy, for appellant; Baird V. Helfrich, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Justice Huffman.

text:
    Frank O. Lowden et al., Trustees of Estate of the Chicago, Rock Island and Pacific Railway Company, Appellees, v. E. L. Mead et al., Appellees. First National Bank of Geneseo, Illinois and Liberty Trust and Savings Bank of Durant, Iowa, Appellants.
    Gen. No. 9,465.
    Heard in this court at October term, 1939;
    opinion filed December 15, 1939;
    rehearing denied February 6, 1940.
    John H. Armstrong, W. G. Peacock and Joseph J. Shaw, for appellants; Daniel Taylor, H. B. Smith and William Hynds, for appellees.
   Opinion by

Justice Huffman.

“Not to be published in full.’’


text:
    Elmer J. Ellefson, Administrator of Estate of Sophia Ellefson, Deceased, Appellee, v. Warren M. Miller, Appellant.
    Gen. No. 9,364.

      Heard in this court at October term, 1938;
    opinion filed January 8, 1940.
    Early, Carpenter & Early, for appellant; B. Jay Knight, J. E. Goembel and Frederick H. Haye, for appellee.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.’’


author: Presiding Justice Wolfe.

text:
    People of the State of Illinois, for use of Gary-Wheaton Bank, Conservator of Estate of Simon Blazek, Insane, Appellee, v. Amos B. Shepard et al., Defendants, and United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 9,462.
    Heard in this court at October term, 1939;
    opinion filed January 8, 1940;
    rehearing denied February 6, 1940.
    Eugene P. Kealy, for' appellant; Fay Warren Johnson, of counsel; Palmer Leren and John £>. Woodward, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in fuU.’’


author: Presiding Justice Wolf®.

text:
    James Connett, Appellee, v. Winfield S. Winget, Appellant.
    Gen. No. 9,466.

      Heard in this court at October term, 1939;
    opinion filed January 8, 1940;
    rehearing denied February 6, 1940.
    Clarence W. Heyl and Walter W. Winget, for appellant; Knoblock & Sloan, for appellee; John F. Sloan, Jr., of counsel.
   Opinion by

Presiding Justice Wolf®.

“Not to be published in full.”


text:
    L. N. Taylor, Appellant, v. Charles P. Megan, Trustee of Chicago and Northwestern Railway Company, Appellee.
    Gen. No. 9,484.
    Heard in this court at October term, 1939;
    opinion filed January 8, 1940;
    rehearing denied February 6, 1940.
    Sim T. Mee and Gerald Jones, for appellant; Nelson J. Wilcox, I. O. Belden and Robert L. Bracken, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


text:
    Alice Orme Smith et al., Appellees, v. Village of Villa Park, Appellant.
    Gen. No. 9,501.
    Heard in this court at October term, 1939;
    opinion filed January 8, 1940;
    rehearing denied February 6, 1940.
    Matthews, Kaleth & Shapiro, for appellant; Thomas A. Matthews and Theodore F. Ashford, of counsel. Leonard C. Mead, Gordon Moffett, Markman, Donovan & Sullivan and Tolman & Chandler, for appellees; Henry O. Nickel and Howard B. Bryant, of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


author: Fresiding Justice Matchett.

text:
    Lawrence E. Hill, Appellee, v. A. A. Sprague, Receiver for Chicago North Shore and Milwaukee Railroad Company, Appellant.
    Gen. No. 40,719.
    O'Connor, J., dissenting.
    Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940;
    rehearing denied February 5, 1940.
    Gardner, Foote, Morrow & Merrick, for appellant; Walter M. Fowler and Robert L. Elliott, Jr., of counsel; Rohde, Epstein & Steinberg, for appel-lee; Abraham Miller, of counsel.
   Opinion by

Fresiding Justice Matchett.

“Not to be published in fuU.”


author: Presiding Justice Matchett.

text:
    William N. Brady, Appellant, v. The Fidelity and Casualty Company of New York, Appellee.
    Gen. No. 40,726.
    Heard in first district, first division, at June term, 1939;
    opinion filed January 22, 1940;
    rehearing denied February 5, 1940.
    J. V. Schaffenegger, for appellant; Leonard & Leonard and White & White, for appellee; George Edward Leonard, Quintín Johnstone and Stuart B. White, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


author: Presiding Justice Hatchett.

text:
    Rose Kimen, Appellant, v. Amy B. Ettelson and Leonard B. Ettelson, Executrix and Executor of Last Will and Testament of Samuel A. Ettelson, Deceased, and Leonard B. Ettelson, Appellees.
    Gen. No. 40,796.

      Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940.
    H. J. Thai, for appellant; Boy S. Gaskill, of counsel; Edward C. Higgins and Levinson, Becker, Peebles & Swiren, for appellees.
   Opinion by

Presiding Justice Hatchett.

“Not to be published in full.”


author: Justice McSurely.

text:
    Porter D. Winans, Appellee, v. Baltimore and Ohio Railroad Company, Appellant.
    Gen. No. 40,738.
    Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940;
    rehearing denied February 8, 1940.
    Edward W. Bawlins and H. D. Sheean, for appellant; Edward B. Henslee and Samuel Cohen, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Willie Betts, Plaintiff in Error.
    Gen. No. 40,758.
    Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940.
    Thomas . J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Bembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel; Joseph Stanley Sullivan and John Benedek, for plaintiff in error.
   OpiMon by

Justice McSurely.

“Not to be published in full.”


text:
    William M. Pindell, Appellant, v. Conlon Corporation, Appellee.
    Gen. No. 40,792.
    Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940.
    Philip H. Newman and Dent, Weiehelt & Hampton, for appellant; Litsinger, Healy, Beid & Bye, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice O’Connor.

text:
    People of the State of Illinois, Defendant in Error, v. Harold Jackson, Plaintiff in Error.
    Gen. No. 40,617.
    Heard in first division, first district, at April term, 1939;
    opinion filed January 22, 1940.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Blair L. Varnes and Melvin S. Rembe, Assistant State’s Attorneys, of counsel; Cameron Latter, for plaintiff in error.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    David B. Maloney, Appellee, v. City of Des Plaines, Appellant.
    Gen. No. 40,723.
    Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940;
    rehearing denied February 5, 1940.
    Kenneth G. Meyer, for appellant; George P. Foster, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


author: Justice O ’Con-nor.

text:
    C. V. Mosby Company, Appellee, v. Horry M. Jones and Middlewest Instrument Company, Appellants.
    Gen. No. 40,750.
    Heard in first division, first district, at June term, 1939;
    opinion filed January 22, 1940;
    rehearing denied February 5, 1940.
    Beckman & Hough, for appellants; Walter S. Vose and Irving B. Campbell, for appellee.
   Opinion by

Justice O ’Con-nor.

“Not to be published in full.”


text:
    Fred George, Appellee, v. International Printing Ink Corporation et al., Appellants.
    Gen. No. 41,105.
    Heard in first division, first district, at December term, 1939;
    opinion filed January 23, 1940.
    Hopkins, Sutter, Halls & DeWolfe, for appellants; Harry B. Sutter and William G. Blood, of counsel; Cassels, Potter & Bentley, for appellee; William S. Warfield III and Robert B. Johnstone, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


author: Mr. Presiding Justice Riess

text:
    In re Estate of Michael T. Burke, Deceased. Frances Burke, Appellee, v. Estate of Michael T. Burke, Deceased, H. S. Capron, Executor, and William F. Burke and Margaret Burke, Appellants.
    Gen. No. 9,198.

      Heard in this court at the October term, 1939. Affirmed.
    Opinion filed January 15, 1940.
    Green & Palmee, of Urbana, and Schaefer & Dolan, of Champaign, for certain appellants.
    Walter B. Riley and Charles E. Keller, both of Champaign, for certain other appellant; Henry I. Green and Oris Barth, both of Urbana, of counsel.
    Dobbins, Dobbins & Thomas, of Champaign, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Champaign county, Illinois, allowing a claim of Frances Bnrke against the estate of Michael T. Burke, deceased, in the sum of $11,037.15 and costs of suit, rendered on the verdict of a jury.

The claim, as originally filed on August 7, 1936, sought damages for an alleged failure to discharge a mortgage lien and indebtedness on certain real estate owned by the claimant and originally deeded to her by direction of Michael T. Burke, her deceased uncle, in accordance with the terms of an alleged oral contract entered into between said parties on or about September 1, 1931, and in the alternative, claimant sought the allowance of the same amount alleged to be due for services rendered and moneys expended for management of the farms and property and upkeep of the decedent’s household at his request during the five years preceding his death.

The claimant, Frances Burke, who was employed in a music store in Champaign, Illinois, left her employment and went to live with her uncle on his 200 acre farm near Savoy, Illinois. His mother, who had lived with him, had departed this life and he was then a bachelor aged 70 years. Frances Burke remained with and kept house for him, did his cooking, general housework, laundry and much of the work on the farm until the time of his death on July 18, 1935, including care and services of an unpleasant and onerous nature.

Michael T. Burke had executed a will in 1928, which was duly admitted to probate in the county court of Champaign county after his death in 1935. In this will, he had devised his lands as follows: The above-mentioned 200 acres to his brother, William F. Burke and Margaret Burke, his wife, for life and thereafter in fee simple to their bodily heirs per stirpes. He so devised another 160 acre farm to his brother, Harry W. Burke, and Molly Burke, his wife, for life and thereafter in fee simple to their bodily heirs per stirpes. The residue of his estate was devised and bequeathed to his said brothers as their absolute property. The 200 acre farm was held subject to a $10,000 mortgage lien and the 160 acre farm to a mortgage lien of $1,500. Oral testimony indicated the market value of the 200 acre farm to be about $150 per acre and of the 160 acre farm to be about $140 per acre. Personal estate was listed in the inventory and appraisement bills at a gross value of $6,459.28, in which was included a real estate mortgage due from William to Michael in the amount of $3,883. Claims, including funeral expenses, were filed against the estate aggregating approximately $900 aside from the costs of administration and appellee’s claim in suit herein.

After his niece Frances had gone to live with him, Michael T. Burke and his brother, William Burke, her father, made an adjustment and settlement of a prior indebtedness somewhat in excess of $17,000 owing from William to Michael. In this settlement, by direction of Michael, William and .his wife executed a deed, which was duly recorded, conveying to said Frances Burke 93.42 acres of farm land in Champaign county, subject to a pre-existing mortgage lien against the same of $10,777.59, which had been given by William and Ms wife to the Dighton-Dilatush' Loan Company and by them assigned to the Equitable Life Assurance Society. In this settlement the above land was valued at $14,013, and the inventoried mortgage of $3,883 was given by William to Michael on other land to settle the balance of his said indebtedness.

The original verified claim filed by Frances Burke purported to be for “amount due claimant because of failure of decedent to discharge the mortgage indebtedness against claimant’s land, in accordance with an agreement of decedent and claimant, in consideration of which agreement claimant paid out moneys and rendered the services mentioned below . . . $11,037.15.” Then followed items of $5,000 alleged to have been expended and of $6,000 for personal services rendered. Subsequently, on motion for a bill of particulars by the executor and those of the heirs and devisees who opposed the claim, a bill of particulars was filed on February 15, 1938, and later amended concerning said alleged agreement to discharge the mortgage indebtedness, by adding and including in said statement that the agreement of decedent and claimant was “made orally on or about the 1st day of September, A. D. 1931, whereby the said Michael T. Burke undertook and agreed with the claimant that if she, the said claimant, would remain or stay with him, he, the said Michael T. Burke, would pay off the mortgage indebtedness against certain premises then lately conveyed at his instance to the claimant subject to a certain mortgage indebtedness, which agreement was fully kept and performed by the claimant, but in the performance of which agreement the decedent made default by failing to pay a large portion of the amount agreed by him to be so paid, namely, the sum of $11,037.15.” Therewith there was added the claim of $6,000 for personal services rendered, which latter demand for $6,000 was thereafter withdrawn by the claimant.

The cause was tried by a jury in the county court and judgment was entered for the claimant in the amount of $10,572.80, and upon appeal therefrom to the circuit court of said county by the executor and certain of the devisees, the cause was retried by a jury and the judgment on the verdict for $11,037.15 and costs was entered. Motion for new trial was denied' and William F. Burke and Margaret Burke, parents of Frances Burke, have appealed to this court.

Appellants insist that the judgment is contrary to the manifest weight of the evidence; that no contract was proven; that the court erred in giving and refusing certain instructions offered to the jury by the respective parties, and that the amended claim stated a new cause of action and was barred by the statute of limitations.

The claimant appellee contends, on the contrary, that the judgment and verdict were in accord with the greater weight of the evidence; that the oral contract was clearly and conclusively proven by direct and circumstantial evidence, and that the claim, as amended and set forth in the bill of particulars, merely amplified and clarified the statement of the agreement of the deceased to pay the mortgage indebtedness in consideration of her remaining with him on the farm and performing such care and services, to which she had assented and so continued to do until his death, in full compliance with the terms of said oral contract.

A number of witnesses testified on behalf of the claimant, who were disinterested in the result of her suit, the substance of whose testimony concerning the alleged oral contract between Frances Burke and Michael T. Burke was as follows: Mrs. James Doyle testified that in September or October, 1931, she was present when a conversation occurred between Michael T. Burke, the decedent, and the claimant; that in this conversation, Michael stated that he had bought Frances Burke a farm and she stated that there was a bigger mortgage than the place was worth, and that the decedent then stated that he would pay it off, as he had always paid his debts, if the claimant would stay, and she stated that she would stay with him. Witness L. T. Brownfield, a farm machine dealer in Cham-paign, testified that he had known Michael Burke for about 35 years, and knew that the deed in question had been made; that Michael told him that he intended to pay off the mortgage on the farm that belonged to Frances and in this conversation also stated that he had agreed to pay the loan and she had agreed to stay with him during his lifetime for the farm. W. L. Groldsby, engaged in the farm insurance business in Champaign, had known the decedent for 20 years and wrote his insurance during all of that time and was called by Mr. Burke to his place in 1931 for the purpose of insuring the buildings on the farm deeded to the claimant. In his conversation with the decedent, he was told that the insurance was to be written in the claimant’s name and he then inquired of Mr. Burke as to whether or not there was any mortgage on the farm. He was told by the decedent that there was a mortgage, but that he expected to pay it off soon. He remembered this particular conversation because it was the only instance in his experience where information was volunteered that a mortgage was to be paid by someone other than the owner of the property. J. B. Hanley testified that the decedent told him in the presence of the claimant that he agreed to pay off her mortgage and that he did not know whether or not she had made any reply. A similar statement was testified to by witness John Busey. He had remarked to the decedent that he was fortunate to have such a girl to keep house for him, to which the decedent replied that she was making him a good home; that he had bought some ground which he was going to give her, or had given her, and that there was a mortgage on the place which he expected to pay. Evidence was also offered of the fact, and it is conceded, that decedent had made some payments on this mortgage.

The appellant offered the testimony of a number of witnesses tending to prove that the decedent was a conservative, honest and industrious person whose word could be thoroughly depended upon and who met all of his obligations.

Further testimony was offered by the appellant with reference to conversations and statements which the claimant had made to various persons and the testimony of J. W. Watson, who had charge of the farm loan business of the Equitable Life Assurance Society, is particularly stressed. The mortgage on the premises was to run 35% years, maturing September 1,1961. Semiannual payments amounting to $359.38 are due annually. It appears from his testimony that these payments were in default in March, 1932, and at later dates. He testified all of the instalments were paid by the claimant. When the mortgage went into default, the claimant was notified by mail. She would then call on Mr. Watson and discuss the mortgage. He stated that he had no personal recollection of the conversations, but had made memorandums at the time as to what the conversations were; that he could refer to the memorandum and after refreshing his recollection, could recall the substance of what was said. The witness testified as to various conversations which he had as to the manner by which the claimant expected to obtain money with which to pay the instalments due on the mortgage. His testimony was to the effect that on February 3, 1936, claimant said she expected to obtain a settlement from her uncle’s estate. At that time he made a memorandum to the effect that the claimant stated she thought she could get $5,000 from the settlement on the date of that conversation. Claimant had an entirely different version' of this conversation with Mr. Watson. She stated that she then told him that her attorneys had advised her that they thought the estate would be willing to settle for $5,000, and that her uncle had promised to pay off the mortgage on the farm if she stayed during his life. Mr. Watson stated that his purpose in making a memorandum was to preserve a record as to when and how payments would be made on the mortgage in question. He repeatedly stated that he had no independent recollection of what was said in the conversation without referring to his memorandum. Josephine Mayer and Sadie Jordan, daughters of the appellants and sisters of the claimant, together with Grant Jordan, the latter’s husband,, testified to a conversation in the presence of her mother, in which the claimant stated that she did not expect her Uncle Mike to pay off the mortgage and that if she had the right kind of crops and proper management, the place would finance itself. Claimant denied that she had made these statements.

Two juries have passed on this matter and found in favor of the claimant. The law is well settled that an express contract may be proved, not only by direct evidence of an actual agreement and the express words used by the parties, but also by circumstantial evidence. Heffron v. Brown, 155 Ill. 322, 40 N. E. 583; Aldrich v. Aldrich, 287 Ill. 213, 122 N. E. 472; Mayo v. Mayo, 302 Ill. 584, 135 N. E. 90. Whether there was or was not a contract was a question for the jury to determine, and in our opinion there was sufficient evidence for the jury to determine that there was an express contract between the claimant and the decedent, which was the basis for this action as set forth in the claimant’s amended claim. WTiere the facts, including the acts of the parties, raise a convincing implication that the contract was actually made, and satisfies the court that its terms and provisions are sufficient to justify its enforcement, it should be upheld. Aldrich v. Aid-rich, supra. Here there was direct and positive testimony of disinterested witnesses that the decedent had stated to the claimant that the mortgage in question would be paid by him as he had agreed; of her assent in express words, as stated by Mrs. James Doyle, and evidenced by the declarations, acts and conduct of the parties to the contract. Johnson v. Devine, 192 Ill. App. 453.

Appellants’ counsel, in support of their position, rely strongly upon the case of Moreen v. Estate of Carlson, 365 Ill. 482, 6 N. E. (2d) 871, wherein the verdicts of two juries and the finding of the Appellate Court were against the claimant on issues of fact and to the effect that no contract was proven and that the oral contract declared upon had not been established by the evidence. Here in direct contrast thereto, the verdicts and judgments in both trial courts and the finding of this court is in favor of the claimant on the issues of fact. Without commenting thereon, a reading of that case will readily disclose the controlling distinctions between the facts and principles therein announced and in the case at bar.

' Appellants’ counsel question the right of the claimant to amend her claim after the expiration of one year from the date of filing the same, contending that said amendment set forth a new cause of action which was thereby barred by the limiting provisions of the statute. No such point was raised in the pleadings, motion for new trial nor in the assignment of errors in the appellants’ brief herein, and the same is deemed to have been waived and cannot now be raised for the first time in this court. Holmes v. City of Chicago, 203 Ill. App. 445; Palmer v. Frank, 169 Ill. 90, 93, 48 N. E. 426. Moreover, the claim recovered upon, as originally filed and amended, is based upon the same transaction and agreement of the parties. The amended claim sets out more completely and specifically the terms of the alleged contract, but is the same transaction that is set out in the original claim. We hold that it does not state a different cause of action.

Certain other alleged errors are assigned in the admission of evidence and the rulings of the court thereon, which we deem in most instances to be without force, and we find no harmful or prejudicial error therein.

Appellants complain of the refusal of the trial court to give defendants’ refused Instructions Nos. 1 and 2. Instruction No. 1 was not based on the pleadings in this case. The sole question for the jury to determine was whether or not there was a contract between the parties; if there was, the amount due under the contract. This instruction is not based on the pleadings or the evidence. Refused Instruction No. 2 is subject to the same criticism as Instruction No. 1. This instruction told the jury “that if the evidence regarding the alleged contract between Michael T. Burke and Frances Burke was so conflicting or uncertain that they were unable to arrive at the exact terms of the alleged contract, then they were entitled to consider the fact that the claimant had rendered service to Michael T. Burke and the value of said services, if any, was shown by the evidence, and that they were further entitled to consider the fact that Michael T. Burke had the farm in question deeded to Frances Burke and that he furnished her a home, and any other compensation or remuneration the evidence showed he allowed.” Prior to the examination of any witnesses, the second portion of the claimant’s claim for services on a quantum meruit basis was waived and the claimant rested her claim upon the first portion of the claim, being for the amount due for failure to pay off the mortgage indebtedness in accordance with the agreement set forth in the claim. Consequently, refused Instruction No. 2 attempted to instruct the jury on an issue not raised by the pleading or the evidence and was properly refused.

It is further contended that error was committed by the trial court in giving Instructions Nos. 6, 10 and 13 on behalf of claimant. It is argued that Instruction No. 6 permits a recovery regardless of what the obligations were to be and whether or not they were performed by the claimant and regardless of the terms of the contract. This is not a fair construction of the meaning of this instruction. Instruction No. 6 told the jury that if they believed from a preponderance of the evidence that the claimant and the decedent made an oral agreement whereby the claimant agreed that she would remain and stay with him, and that in such agreement the decedent promised that he would pay off the mortgage indebtedness against certain premises then lately conveyed at his instance to the claimant, and that if such agreement was fairly and understandingly entered into by the parties, then the claimant and the estate of the decedent were each bound thereby. The court did not intimate by this instruction that either of the parties had fulfilled his or her part of the agreement, and it is not subject to criticism that it permitted a recovery regardless of what obligations were performed by the claimant and regardless of the terms of the contract. The jury was repeatedly told by instructions given by the appellant that the claimant could not recover unless she proved that a contract was entered into between the claimant and Michael T. Burke and unless she performed her part of the contract.

All elements necessary for a recovery on the part of the claimant are incorporated in Instruction No. 10 and there was no error in giving this instruction. By claimant’s Instruction No. 13, the jury was told that if they found from a preponderance of the evidence and under the instructions of the court that if the claimant stayed with the decedent until his death, in performance of an agreement between the claimant and decedent that if she did so the decedent would pay a certain mortgage, then upon the death of the decedent without having fully paid such mortgage, the claimant was entitled to recover the entire amount remaining unpaid thereon, whether the same was then due by the terms of the mortgage or not. The instruction was based upon the claimant’s theory of the case and was proper under the pleadings and the evidence.

As stated therein, the instructions should be considered in a series, and when so considered, we hold that the jury has been fully and fairly instructed upon the issues herein.

While we have not discussed all of the errors assigned, we have examined and considered them, and from a review of the entire record, we find that substantial justice has been done between the parties and that no reversible error appears in the record.

The judgment of the circuit court of Champaign county will therefore be affirmed.

Judgment affirmed.


text:
    John Beddow and Edward Beddow, Appellees, v. Robert F. Hicks, Defendant. Appeal of Continental Insurance Company of the City of New York, Appellant.
    Gen. No. 9,202.

      Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.
    Paul B. Willard, of Rushville, and Schuyler & Hennessy, of Chicago, for appellant; Paul H. Heineke, of Chicago, of counsel.
    T. E. Bottenberg, of Rushville, for appellees.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Appellees John and Edward Beddow, father and son, filed suit in equity to reform certain provisions of a fire insurance policy issued by defendant appellant, the Continental Insurance Company of the city of New York, by correcting an alleged mutual mistake of fact in the issuance thereof in the name of defendant Robert F. Hicks, instead of “John Beddow, Edward Beddow and Robert F. Hicks, as their interests may appear” and praying judgment thereon in the sum of $1,000 and accrued interest.

The cause was referred to the master in chancery and upon evidence heard and objections to the master’s report, findings and conclusions, standing as exceptions, which were overruled by the court, a decree was entered granting the relief prayed, from which decree an appeal was taken by the defendant insurance company to this court.

It appears from the evidence that appellees John and Edward Beddow entered into a written contract with Robert F. Hicks on February 14, 1938, for the purchase of certain real estate upon which an insured two-story dwelling house, then occupied as tenants by said Beddow family was situated, for a purchase price of $800, $100 of which was paid in cash and the remainder was payable in monthly instalments of $15 during the continuance of the contract, with interest at 6 per cent per annum on the unpaid remainder. This contract, together with a warranty deed executed by the party of the first part to the party of the second part was deposited in escrow with the cashier of the First State Bank of Browning, Illinois, Roy H. Fleming, who was also agent of the defendant insurance company, to be delivered to said plaintiff appellees by said cashier upon completion of such payments; said agent Fleming having previously issued a fire insurance policy in the defendant company in the sum of $1,000 on the above building in which said Hicks was named as the insured, the date of expiration thereof being February 9, 1928, and upon the expiration of which policy the said appellee vendees were to pay the costs of renewing and continuing such insurance during the period of said contract of purchase and to pay all taxes and assessments against said property dne after the year 1927.

It further appears from the evidence that at the time of entering into said contract the same was written by Fleming at the bank in Browning, at which time Hicks and the two Beddows and their respective wives were present; that Fleming, as agent of the insurance company, was directed to draw said policy so as to protect the interest of said vendor Hicks and appellee vendees; that at the time of making said transaction he assured the said parties that this would be done; that the defendant insurance company, through its said agent, Boy H. Fleming, thereupon issued their policy insuring the above dwelling house against fire for a term of one year in the name of Bobert F. Hicks; that thereafter the defendant insurance company, through its said agent, so regularly renewed said policy of insurance at the request of the plaintiff appel-lees in each and every year thereafter, including the policy now in question issued on February 9, 1932, upon payment by appellees of the annual premium of $6.30 to its said agent, and that all of said renewals were issued in the name of Bobert F. Hicks.

It further so appears that at the time of execution of said contract, the warranty deed was written by Fleming, in which the names of the said vendees, together with their respective wives, appeared as grantees, the latter being so included without the knowledge of the vendees named in the contract; that the original contract, deed in escrow and insurance policy were left with Fleming at the bank and were never seen thereafter by any of the appellee vendees until after the dwelling house insured in said policy and renewals was destroyed by fire on August 23, 1932.

It further so appears that said insurance agent Fleming, at the time of each of said several renewals knew and understood the desire of the appellee vend-ees, who regularly paid said renewal premiums, that the same be so drawn and kept in force as to protect said vendor Hicks and the appellee vendees against loss as their respective interests might appear; that said policy was so renewed with the intention on the part of all said parties that the same be so drawn and kept in force, but that by mistake of said agent the same was not drawn according to such understanding and direction, but was so drawn in the sole name of Hicks as the assured, and the names of the appellees were omitted therefrom.

While there is some conflict in the evidence, it clearly appears that at the time of entering into the contract of purchase of said real estate and the above arrangement for continuing the insurance by said agent Fleming, the question of whether or not a good title in fee simple to the premises could be given by said vendor Hicks was discussed with and in the presence of said agent Fleming, who was fully conversant with the status of said title and of the fact that an undivided one-fourth interest as tenant in common was vested in a minor heir, who lived outside of the State of Illinois and whose interest had not been conveyed to Hicks; that two of the witnesses present in the bank at that time testified that Fleming told them that the warranty deed would protect them and that they would be protected under the fire insurance policy that he was arranging and that the said vendees believed that said policy upon which they continued to pay annual premiums thereafter was so drawn as to protect them in case of loss thereunder; that the policy as written was renewed by said agent from year to year with full knowledge of the fact that the outstanding interest of said minor heir had not vested in said vendor Hicks or appellee vendees and that Hicks, at the time of such transaction held only an undivided three-fourths interest in fee simple in and to the premises on which the building was located and for the sale and conveyance of which said contract providing also for reinsurance of the property was entered into, and that notwithstanding said actual knowledge of the condition of said title and the nature and extent of their respective . insurable interests therein by said Fleming, he continued at all times to collect instalment payments under said contract and made annual renewals of the insurance policy on said premises and continued in possession of all said papers until after the time of said fire loss.

It further so appears from the evidence that at the time of said fire loss there remained due and unpaid to said vendor from the vendees the sum of $213.85, principal and interest on the purchase price of said premises, and that the vendees had made valuable improvements thereon.

It was further found by the master and decreed by the court below that the value of the building insured in said policy at the time of the loss was $2,267.28 and that the value of the insurable interest of the appellees therein was in excess of $1,200.

The policy contained the following provision concerning the ownership of the property, viz: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on the ground not owned by the insured in fee simple.”

Subsequent to the contract for the sale of the premises, vendor Hicks had moved from the State of Illinois and at the time of the fire loss his address or place of residence could not be ascertained by the Beddows upon diligent inquiry, until several months thereafter. Within the 60 days required by the policy, appellees John and Edward Beddow filed proofs of loss claiming that there was due them under the terms of said policy the sum of $1,000. The defendant .company, through its agent Fleming, through whom the proofs of loss had been submitted, refused payment of the amount of the policy, contending that the policy was not drawn in the name of said appellee vendees but in the name of Hicks and that said vendees had no insurable interest therein and were not the sole owners of the fee simple title thereto as required by the terms of said policy and further claimed that Hicks, who was named as the assured in the policy, could not recover because he was not the sole owner in fee simple of the premises and that he had filed no claim nor proof of loss within the time specified in the policy.

The suit' in equity was thereupon filed by the ap-pellees against the company seeking to reform the contract and correct the mistakes to conform with the alleged understanding of the parties, to which complaint the defendant insurance company filed answer setting up the above defenses. Subsequent thereto, Hicks, a nonresident, entered his appearance and filed answer admitting the material allegations of the complaint but claiming an interest in and lien against said funds for the unpaid balance due him under the contract of purchase, which right to a lien or interest in any amount was denied by the defendant company, but not by the plaintiffs herein.

A careful review of the briefs, abstracts and record herein impels this court to find that the evidence clearly sustained the findings of the master and the decree of the court below as to the facts herein, and on the facts, so found, that the material allegations of the complaint were sustained and that the decree granting the relief prayed by the appellees is clearly in accord with the law and the evidence.

The rule has been frequently announced in a long fine of decisions in this State that in order to justify the correction or reformation of a deed or insurance policy in equity, the evidence that there was a mutual mistake by the parties in the terms alleged must be of a very strong and convincing character. It is also undoubtedly true that where a mutual mistake is made in the terms of a contract of insurance, a court of equity will in a proper case between the proper parties rectify the mistake under the same rules and circumstances as under the rules by which any other contract would be rectified, and when it is so corrected, such court will retain jurisdiction to enforce it as between the parties thereto and their privies according to its terms as so corrected and as mutually intended and agreed upon by the parties thereto.

Conditions in a policy of fire insurance rendering the policy void if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the insured in fee simple are reasonable and valid, and a breach of such conditions, or either of them, is a bar to a recovery under the policy in the absence' of a waiver of the condition or an estoppel which precludes the company from making such defense. Pollock v. Connecticut Fire Ins. Co. of Hartford, 362 Ill. 313, 320, 199 N. E. 816; Capps v. National Union Fire Ins. Co., 318 Ill. 350, 149 N. E. 247; Kobzina v. Empire State Ins. Co., 289 Ill. App. 157, 6 N. E. (2d) 895.

It devolves upon the party seeking recovery to prove knowledge of facts that would constitute a waiver or estoppel in equity, and unless such grounds clearly appear from the evidence, equitable relief and recovery should be denied. However, where such grounds and such knowledge clearly and convincingly appear from the evidence, as was found and held by the trial court and by this court in the instant case, it has been uniformly held by the courts of review of Hlinois that equitable relief will be granted.

An insurance company may waive any conditions or provisions inserted in the policy for its benefit and such waiver may be expressed or implied, which may arise from acts, words, conduct, notice or knowledge on the part of the insurer. Phenix Ins. Co. v. Hart, 149 Ill. 513, 36 N. E. 990; Cox v. American Ins. Co., 184 Ill. App. 419, 424.

In the cases of Pollock v. Connecticut Fire Ins. Co. and Capps v. National Union Fire Ins. Co., supra, wherein the facts proven were not sufficient to justify a decree reforming the.insurance policies therein referred to, the distinction between those cases wherein the evidence establishes or fails to establish knowledge of facts constituting a waiver of the condition concerning ownership is recognized and the court holds that where an insurance company issues a policy with actual knowledge of the true state of the title, it is bound by such title.

Here, Fleming kept in his possession all papers, including the policies; was familiar with, had discussed, advised and made statements concerning the interests of the respective parties in and to the property and made renewals of the policy as agent of the insurance company with full knowledge of all surrounding facts and circumstances, in all of which transactions the appellees relied upon him and his statements and actions in relation thereto.

Where the insured was induced to act upon the superior judgment of an insurance agent, equity may correct mistakes in policies. Snell v. Atlantic Fire & Marine Ins. Co., 98 U. S. 85 ; Sias v. Roger William Ins. Co., 8 Fed. 183; Abraham v. North German Ins. Co., 40 Fed. 717; Keith v. Globe Ins. Co., 52 Ill. 518; Mercantile Ins. Co. v. Jaynes, 87 Ill. 199.

It is also true that where the facts are fully disclosed to and known by the agent and the policy is written and countersigned by the agent who represents the company in the transaction, the latter will be deemed to have waived the provision of the policy concerning sole ownership in fee simple of the premises by the assured. If, from all the facts of the case, they erroneously determine that the insured has one kind of interest in the premises when he has another. and thereafter continue with full knowledge of the facts to receive the premiums, they thereby waive that provision and are estopped from defending against liability on that ground. Germania Fire Ins. Co. v. Hick, 125 Ill. 361, 364, 17 N. E. 792; Phenix Ins. Co. v. Stocks, 149 Ill. 319, 329, 36 N. E. 408; Downs v. Michigan Commercial Ins. Co., 157 Ill. App. 32, 36.

An insurance company that knowingly takes a premium for a policy under conditions that would render it invalid, will not be permitted to say that it is not a binding' contract for that reason. In all such cases the company will be regarded as having the same knowledge of the conditions and situation of the property as is possessed by the agent transacting the business for it. Keith v. Globe Ins. Co., supra; Germania Fire Ins. Co. v. Hick, supra; Niagara Fire Ins. Co. v. Brown, 123 Ill. 356, 359, 15 N. E. 166; Reaper City Ins. Co. v. Jones, 62 Ill. 458, 460; Kingston Mut. County Fire & Lightning Ins. Co. v. Olmstead, 68 Ill. App. 111, 114; Downs v. Michigan Commercial Ins. Co., supra; Home Ins. Co. v. Mendenhall, 164 Ill. 458, 45 N. E. 1078.

The term ‘ ‘ agent or agents ’ ’ of insurance companies foreign to the State of Illinois, as used in section 150 of the Insurance Act (ch. 73, Cahill’s Ill. Rev. Stat. 1933) in force at the time of making and renewing the policy is not used in the limited sense of an agent for the procuring or soliciting of policies, but includes anyone who in any manner aids the company in the transaction of its business. Continental Ins. Co. v. Ruckman, 127 Ill. 364, 376, 20 N. E. 77.

Where an agent is authorized to act, and through his mistake or fraud, the policy fails to express the real contract between the parties, or, if by inadvertence, negligence or mistake of the agent, provisions other than those intended are inserted, or stipulated provisions are omitted, there is no doubt as to the power of the court of equity to grant relief by reformation of the contract. German Fire Ins. Co. v. Gueck, 130 Ill. 345, 350, 23 N. E. 112; Gray v. Merchants’ Ins. Co. of Newark, 113 Ill. App. 537, 542; Vial v. Norwich Union Fire Ins. Soc. of Norwich, Eng., 172 Ill. App. 134, 139.

It has long been the settled law in this State that a party has an insurable interest in property from the existence of which he receives a benefit or from the destruction of which he will suffer a pecuniary loss, although he has no title to or possession of the premises. The insured is entitled to recover, when he has an insurable interest for losses under the terms of a policy not exceeding the amount for which he is insured. Home Ins. Co. v. Mendenhall, supra; Andes Ins. Co. v. Fish, 71 Ill. 620; Phenix Ins. Co. v. Stocks, supra; Welch v. Northern Assur. Co., Ltd., 223 Ill. App. 77; Griffin v. W. L. Pfeffer Lumber Co., 285 Ill. 19,120 N. E. 583. Here, the appellees had an insurable interest in excess of the amount recovered in the property destroyed by fire.

The minor heir, Norman Allumbaugh, hereinabove referred to, having been of age at the time of the policy loss, became a party to the proceeding by an intervening petition wherein he prayed for payment to him of a distributive share of the insurance payable under the above policy, but the trial court properly held that his interest had not been insured and that he was not a party to the insurance contract and could not recover thereunder. From that decision, no appeal was taken and no errors assigned.

It appearing from the evidence and finding of the trial court that the value of the insurable interest of plaintiff appellees, John Beddow and Edward Bed-dow, was in excess of $1,200, which amount exceeded the sum of $1,000 insurance provided for in the policy, said plaintiffs were entitled to recover the full amount of said insurance with interest thereon at the legal rate of 5 per cent until paid, together with costs of suit.

It is further urged by the appellant that it was error to decree a lien in favor of the defendant Hicks payable out of the judgment recovered for the unpaid balance of the purchase price of the premises. His right to set up a claim for payment of the amount of said balance in his answer was not questioned by the plaintiffs, John Beddow and Edward Beddow, in whose favor the decree was so entered, nor have they filed any cross errors in this court. The insurance company has no interest in the final disposition of the funds recovered and collected under the decree.

While we have not herein discussed, we have fully considered all other assignments of error set forth and argued in the appellant’s brief, and we find no reversible error in the record. The decree of the circuit court of Schuyler county will therefore be affirmed.

Decree affirmed.