author: Mr. Justice Denis E. Sullivan Mr. Presiding Justice Burke

text:
    Katrina Thornton, Administratrix of the Estate of William Pendley Thornton, Deceased, Appellee, v. Hoover Herman, Appellant.
    Gen. No. 41,515.

      Burke, P. J., dissenting.
    Heard in the third division of this court for the first district at the October term, 1940.
    Opinion filed June 25, 1941.
    Rehearing denied October 17, 1941.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for appellant; I. E. Ferguson and Jack I. Levy, both of Chicago, of counsel.
    J. Hayden Macdonald and Andrew J. Farrell, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Katrina Thornton, as administratrix of the estate of her deceased husband, William Pendley Thornton, brought this statutory action against the defendant to recover damages for the death of her husband by the alleged wrongful act of the defendant Hoover Herman.

A verdict for $10,000 was returned by the jury in favor of plaintiff and against defendant, plus costs, and judgment was entered thereon.

An agreed statement of facts was entered into between the parties and the cause comes before us in that form, which limits the appeal to the single question as to whether the plaintiff, after recovering compensation from her husband’s employer under the provisions of the Workmen’s Compensation Act, had the right to prosecute an action for damages against the defendant.

Plaintiff’s theory of the case is that she is not debarred by the Workmen’s Compensation Act from prosecuting this action against the defendant.

Defendant’s theory is that plaintiff is not entitled to maintain this action against him because:

(a) The death of plaintiff’s husband was caused by an injury sustained while he was engaged in the line of his duty as an employee covered by the provisions of the Workmen’s Compensation Act, so that plaintiff was entitled to recover and did in fact recover compensation from the decedent’s employer under the provisions of the Workmen’s Compensation Act;
(b) And because the defendant, at the time of the occurrence, was also a person bound by the Workmen’s Compensation Act;
(c) Wherefore the defendant (if legally liable to respond in damages) was subject only to an action by the decedent’s employer to recover damages in an amount not exceeding the aggregate amount of compensation payable by the decedent’s employer under the Workmen’s Compensation Act.

As heretofore stated, the parties hereto entered into an agreed statement of facts on July 19, 1940, which reads as follows:

“The plaintiff, Katrina Thornton, administratrix of the estate of William Pendley Thornton, deceased, by J. Hayden Macdonald and Andrew J. Farrell, her attorneys, and the defendant, Hoover Herman, by Sonnenschein, Berkson, Lautmann, Levinson & Morse, his attorneys, for the sole purpose of condensing the transcript of record in this case for the purposes of an appeal by the defendant from the judgment heretofore, to-wit, on June 21, 1940, entered herein in the sum of ten thousand dollars ($10,000.00) and costs in favor of the plaintiff and against the defendant and with the understanding that this stipulation shall be binding-on the parties hereto in any court which shall review, by appeal or otherwise, said judgment, but that in the event of a reversal of said judgment and a new trial of said cause this stipulation shall be of no force and effect and shall cease to be binding on all of the parties hereto, hereby stipulate and agree:
“1. William Pendley Thornton died October 23, 1938, and left him surviving Katrina Thornton, his widow, and four minor children as his sole heirs at law and next of kin. The plaintiff was duly appointed administratrix of the decedent’s estate and brought this suit within one year after the death of said decedent to recover damages under the Injuries Act alleged to have been suffered by the said next of kin of the decedent.
“2. The death of William Pendley Thornton resulted from injuries sustained October 20, 1938, while he was employed as a painter by Cassity-Richards, Inc., a corporation, and while engaged in the performance of his duties of said employment and under such circumstances that the jury found that his death resulted from the negligent act of the defendant, Hoover Herman, while the said decedent was himself in the exercise of due care and caution for his own safety. Solely for the purposes of a review of the judgment heretofore obtained herein it is agreed that the evidence was sufficient to sustain the verdict of the jury and the judgment rendered thereon.
“3. At the time of the said occurrence, on October 20, 1938, causing the death of the said decedent, the defendant, Hoover Herman, was employed as a driver of a truck by B. B. Donnelley So Sons Company, a corporation, and was at said time and place engaged in the performance of his duties as such truck driver.
“4. At the time and place of the occurrence causing the death of the said decedent and at all times since said date Cassity-Richards, Inc., the employer of the said decedent, was bound by the Workmen’s Compensation Act of Illinois, both automatically (i. e., by virtue of the nature of its business) and by its own election in the manner provided in said Act (i. e., by insuring its liability to pay compensation under said Act with an insurance carrier licensed to do such insurance business in Illinois).
“5. At the time and place of the occurrence causing the death of the said decedent and at all times since said date R. R. Donnelley & Sons Company, the employer of the said Hoover Herman, was bound by the Workmen’s Compensation Act of Illinois, both automatically (i. e., by virtue of the nature of its business) and by its own election in the manner provided in said Act (i. e., by insuring its liability to pay compensation under said Act with an insurance carrier licensed to do such insurance business in Illinois).
“6. On June 20, 1939, the Industrial Commission of the State of Illinois entered an award against Cassity-Richards, Inc., in favor of or for the benefit of the said widow and four minor children of the decedent (being the persons for whose benefit the plaintiff brought this suit and recovered the judgment herein) in the aggregate sum of $5,440.00, together with $185.90 for hospital, nursing and medical services rendered to or for the said decedent from October 20, 1938, the time of the occurrence causing his death, to October 23, 1938, the date of his death. The total amount that Cassity-Richards, Inc., has paid and is obligated by virtue of the award of the Industrial Commission of the State of Illinois to pay is $5,625.90.
“7. On July 13, 1939, pursuant to section 29 of the Workmen’s Compensation Act of Illinois, Cassity-Richards, Inc., filed suit against R. R. Donnelley & Sons Company and Hoover Herman in the Circuit court of Cook county, case No. 39-C-7490, to recover from the defendants the sums awarded by the Industrial Commission, as aforesaid, Exhibit ‘A’ attached to the amended motion filed by the defendant in this case to dismiss plaintiff’s complaint is a true and correct copy of the complaint filed by Cassity-Richards, Inc., in the said circuit court case No. 39-C-7490. Hoover Herman, named as a defendant in said complaint, is the same Hoover Herman who is the defendant in this case. Said circuit court case No. 39-C-7490 has never come to trial and is still pending and undisposed of.
“8. All notices required by section 29 of the Workmen’s Compensation Act of Illinois, particularly the fourth paragraph of said section, to be served by the personal representatives of the employee, said decedent, upon Cassity-Richards, Inc., a corporation, his employer, were duly served upon said employer and proof thereof filed in this cause, in accordance with the provisions of said section 29.
“9. On June 21, 1940, on the trial of the present case by the court and a jury, the jury returned a verdict in favor of the plaintiff and against the defendant and assessed the plaintiff’s damages at the sum of $10,000, and a judgment in favor of the plaintiff and against the defendant for said amount, plus costs of suit, was entered on the verdict.
“10. At the close of the plaintiff’s evidence the defendant presented to the court a written motion to gether with a written instruction for a directed verdict in favor of the defendant and the court denied said motion. At the close of all of the evidence the defendant again presented to the court a written motion together with a written instruction for a directed verdict in favor of the defendant and the court denied said motion.
“11. On June 24, 1940, the court entered an order denying the motion of the defendant to vacate the judgment and enter judgment in favor of the defendant notwithstanding the verdict.
“12. On June 25, 1940, the court entered an order denying the motion of the defendant for a new trial.
“13. By entering into this stipulation neither of the parties hereto admits the competency, materiality or relevancy of any fact or facts set forth herein.
“14. Subject only to the limitation contained in the introductory paragraph of this document, it is agreed that this stipulation or a copy thereof shall be inserted in the transcript of record of this case, on appeal from the judgment heretofore entered, in lieu of a report of proceedings at the trial and that the facts stated in this stipulation shall be treated as true and correct by the Appellate court of Illinois and the Supreme court of Illinois and either of them on the review by appeal or otherwise of the present judgment.
“Dated this 19th day of July, A. D. 1940.
J. Hayden Macdonald,
Andrew J. Farrell,
Attorneys for plaintiff.
Sonnenschein, Berkson, Lautmann,
Levinson & Morse,
Attorneys for defendant.”

Unfortunately, at the outset of this case, counsel disagree as to the meaning of the stipulation which they entered into in order to limit the questions to be considered by the court in deciding this case. Counsel for plaintiff: appellee makes the following statement:

“The stipulation of facts . . . entered into between the parties in order to obviate the necessity of a report of proceedings states that the evidence with respect to the occurrence itself was sufficient to sustain the verdict of the jury and the judgment thereon. As stated in defendant’s brief (p. 10):
‘" The defendant has elected to urge only the single contention that, under the provisions of the Workmen’s Compensation Act, he is subject only to a suit by Cassity-Richards, Inc., the decedent’s employer, pursuant to Sec. 29 (Par. 1) of the Act.’
‘ ‘ On page 9, defendant says that it is agreed that at the time of the occurrence resulting in the death of plaintiff’s husband both the decedent’s employer (Cassity-Richards, Inc.) and defendant’s employer (R. R. Donnelley & Sons Company) ‘ and all their employees were hound by the Workmen’s Compensation Act of Illinois. ’ No such agreement was made. In paragraph 4 of the stipulation of facts it was agreed that Cassity-Richards, Inc., the employer of the decedent, was bound by the Workmen’s Compensation Act of Illinois. (Abst. 15). In paragraph 5 it was agreed that R. R. Donnelley & Sons Company, the employer of Hoover Herman, was bound by the Workmen’s Compensation Act of Illinois (Abst. 18). It was not stipulated at any place or at any time that the defendant, Hoover Herman, was ‘hound’ hy the Workmen’s Compensation Act of Illinois.”

There being no evidence on this important point and as the stipulation does not cover it, we must proceed on the theory that Hoover Herman, the actual tort-feasor, was not bound by the Workmen’s Compensation Act of Illinois. We may, however, decide the question as to whether or not the legislature intended by the terms of the Workmen’s Compensation Act that an actual tort-feasor should be relieved from all liability by reason of the payment of an award under the Workmen’s Compensation Act to the injured party. Many statutes have been enacted and decisions rendered on the subject of the Workmen’s Compensation Act in the various States. We are inclined to the opinion that the legislature did not intend by sections 6 or 29, which are the pertinent sections of the Workmen’s Compensation Act, to abolish the right of an injured party to recover against a tort-feasor who is a third party.

The Workmen’s Compensation Act has been passed upon by our Supreme Court on many occasions, but we believe the language used in O’Brien v. Chicago City Ry. Co., 305 Ill. 244, is controlling in the instant case. The Supreme Court at page 251, said:

“Section 6 abolished the common law right to recover damages for an injury sustained by an employee in the line of his duty as such employee and the statutory right to recover damages for the death of an employee caused by negligence while engaged in the line of his duty as such employee. The language of the section is broad enough, if considered as an independent sentence separate from any context, to deprive a workman injured in the manner mentioned, or his legal representatives or dependents, or any person otherwise entitled, of any right to recover damages against any person, whether his own employer, a fellow-employee of his own employer whose negligence caused the injury, another employer in the same or a different kind of industry, an employee of another employer, or a total stranger to employment in any capacity who negligently or maliciously caused the injury. In any interpretation of the language, however, the subject matter in connection with which it is used must be taken into consideration, and that subject matter here is compensation for injuries suffered in the course of employment, — not injuries generally or negligence generally. Those two subjects do not come within the scope of the act except as they are incidentally affected by the relation of employment,— the respective rights and liabilities of the employer and employee because of that relation. If sections 11 and 29 had been omitted from the act there would be no justification for concluding that section 6 abolished the right of action for negligence causing injury or death. The provisions of the latter section apply only to the right of the employee against his employer and have no reference to the liability of third persons causing injury to the employee. (Goldsmith v. Payne, 300 Ill. 119.)”

In a comparatively recent case being that of Huntoon v. Pritchard, 371 Ill. 36, the Supreme Court at page 43, said:

“The other question involved here is: Was the appellee released from his liability for malpractice upon appellant by reason of the payment of compensation to her by her employer under the Workmen’s Compensation Act? Section 6 of that act (Ill. Rev. Stat. 1937, chap. 48, par. 143) provides: ‘No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.’
“The provisions of this section apply only to the right of the employee against his employer and have no reference to the liability of third persons causing injury to the employee. O’Brien v. Chicago Rys. Co., 305 Ill. 244; Goldsmith v. Payne, 300 id. 119.”

Pursuing this question further as to whether or not section 29 of the Workmen’s Compensation Act, denies to the personal representative of an employee coming under the Workmen’s Compensation Act, the right to sue an employee of another employer for injuries inflicted by that other employee resulting in death, is not taken away by the Workmen’s Compensation Act, is further exemplified by the case of O’Brien v. Chicago City Ry. Co., 305 Ill. 244. The Supreme Court in that case construed the legislative intent and clarified many questions which are raised in the instant case. We quote from page 258:

“The appellees also contend that the Workmen’s Compensation act is a statutory substitute of a new system of redress for accidental injuries to an employee arising out of and in the course of his employment and is intended to supersede the old system of personal actions at law, and that it was never designed that an employee should have recourse both to the old system of redress by personal action against one who inflicted a tort upon him and the new system of compensation from his employer whether a tort had been committed or not. We have already considered this contention to some extent in the particular discussion of sections 6 and 29. Omitting section 29, there is no basis for a claim that the act substitutes the compensation provided by it for a personal action against a person other than the employer negligently causing the injury. The intention of the legislature is to be found in the words used in the act, considered in the light of the evil sought to be remedied and the previous condition of the law. The evil sought to be remedied was the condition in the relation of employers and employees which made the accidents which frequently occur in the course of employment subject to long, expensive and uncertain litigation between em-ployers and those of their employees who suffered from such accidents. In considering this subject the legislature did not take into consideration the subject of injuries negligently caused by one person to another between whom the relation of employer and employee did not exist, except in the one case where the injured person was entitled to compensation, and in that case it expressly made the distinction that if the person causing the injury was subject to the provisions of the act the right of action of the injured employee was abolished, and if the person causing the injury was not subject to the provisions of the act the right of action should continue. There is no other provision of the act which indicates a contrary intention or is inconsistent with the express provision of section 29.”

The question presented in the instant case for our consideration was decided by this court in the case of Botthof v. Fenske, 280 Ill. App. 362. In that case the plaintiff brought an action against Fenske, a fellow employee, for injuries resulting from the negligent operation of an automobile. Both were employed by Fenske Bros. Inc., which company was operating under the Workmen’s Compensation Act of the State of Illinois. The defendant’s contention was that the plaintiff lost his common-law action against the defendant by reason of the provisions of section 6 and 29 of the Workmen’s Compensation Act since, plaintiff claimed, both the plaintiff and the defendant were “bound” by the provisions of that act. Mr. Justice John J. Sullivan of this court in deciding the Botthof case, made the following pertinent observations: (page 375)

“Does the Workmen’s Compensation Act of this State abolish an employee’s common law right of action against anyone for negligently injuring him in the course of his employment if the person so injuring him is not within the contemplation of the statute bound by the act? What is the legal significance of the language ‘bound by the act?’ If it merely means that defendant was ‘under the act’ in the sense that he had agreed to accept its provisions for the payment of compensation to him by his employer and for such other relief or remedy as the act might afford him, then plaintiff’s common law action against him must fail. But similar provisions in varying language to the same effect in the compensation acts of nearly all the jurisdictions where this question has been adjudicated have been construed to mean ‘subject to its terms ’, in the sense that one was liable to pay compensation to the injured employee. The defendant was clearly not so bound. Certainly the negligent employee is not liable for compensation; therefore he is a stranger to the act, as far as his liability to his fellow employee is concerned, being a person other than the employee entitled to receive compensation or the employer liable to pay it. The right of the injured employee to sue the third person depends upon whether the latter is subject to the act. Since the co-employee whose misfeasance produced the injury is not subject to the act, he must be regarded as a ‘third party’, and therefore amenable to an action at common law. (Sylcox v. National Lead Co., 225 Mo. App. 543, 38 S. W. (2d) 497.”

In Hoff v. Lindstrom, 284 Ill. App. 651 (Abst.), this court had occasion to pass upon a somewhat similar set of facts as are involved in the instant case. In that case Hoff brought a suit against Lindstrom and the Yellow Cab Company. Hoff was a chauffeur employed by the Krem-Ko Company, which was subject to the Workmen’s Compensation Act, and Lindstrom was employed by the Yellow Cab Company, which was also subject to the Workmen’s Compensation Act. Judgment was entered in the trial court against both defendants. This court reversed the judgment as to the Yellow Cab Company and affirmed it as to its employee, Lindstrom. This court in the Hoff case, cited the case of Botthof v. Fenske, 280 Ill. App. 362, with full approval, and said:

“The question as to defendant Lindstrom’s liability is entirely different. He was not immune from an action for personal injuries in the instant case. The Workmen’s Compensation Act is not applicable. Botthof v. Fenske, 280 Ill. App. 362. In that case it was held by another Division of this court that the Workmen’s Compensation Act did not abrogate the right of an employee to maintain an action for damages for negligence against a fellow employee of the same employer. Obviously Lindstrom, who was employed by the Yellow Cab Co. at the time in question, was not liable to pay plaintiff compensation under the Workmen’s Compensation Act.
“The Botthof case goes very thoroughly into the question now before us and we are entirely satisfied with what the court there said.”

In the case of Botthof v. Fenske, 280 Ill. App. 362, this court thoroughly investigated and analyzed the the law involved, and cited many authorities in this and other jurisdictions throughout the United States and England in which it has been held that the common-law right of an injured employee to sue his co-employee for negligence was not abrogated by the provisions of the Workmen’s Compensation Acts of those various jurisdictions. Citing: Lees v. Dunkerly Bros. (H. L.) 103 L. T. Rep. 467; 227 App. Div. 430, Judson v. Fielding, 237 N. Y. S. 348; Churchill v. Stephens, 91 N. J. L. 195, 102 Atl. 657; Zimmer v. Casey, 296 Pa. St. 529, 146 Atl. 130; Webster v. Stewart, 210 Mich. 13, 177 N. W. 230; McGonigle v. Gryphan, 201 Wis. 269, 229 N. W. 81; Sylcox v. National Lead Co., 225 Mo. App. 543, 38 S. W. (2d) 497; Wells v. Lavitt, 115 Conn. 117, 160 Atl. 617.

A perusal of the cases cited herein discloses that the right of an injured employee to sue a third person depends upon whether or not the latter is subject to the Workmen’s Compensation Act. In the instant case since the co-employee whose misfeasance or negligence was responsible for the injury to plaintiff’s intestate is not subject to the act, he must be considered as a “third party” and therefore is not relieved of his common-law responsibility.

Again referring to the stipulation, we have been unable to find in the stipulation or from the evidence that the defendant in this case was bound by the terms of the act as alleged by counsel. From the decisions which we have been able to find, this question of fact is one of the controlling factors and, inasmuch as we must find that Herman was not subject to the act or bound by the act, it necessarily follows that the right of action which, under the common law vested a cause of action in the plaintiff by reason of his wrongful act, is not protected by any provision of the Workmen’s Compensation Act and he cannot avail himself thereof. The right of the injured man’s employer to recover the amount paid by him as an award under the compensation statutes, is not involved in this case.

From a review of the law applicable to the question here involved, we are forced to the conclusion that the defendant here is a third party and not included under the terms and conditions of the Workmen’s Compensation Act of the State of Illinois, and is subject to the common-law right of the plaintiff to sue him for damages. The judgment of the superior court is, therefore, affirmed.

Judgment affirmed.

Hebel, J., concurs.

Mr. Presiding Justice Burke

dissenting: In Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413 (page 419) the Supreme Court, in speaking of the Workmen’s Compensation Act, said:

“The act divides employers and employees who have accepted the provisions of the act from employers and employees who have not accepted the provisions of the act, and it establishes a different rule in regard to the respective rights and liabilities of all employers and employees under the act from that which applies to employers and employees not under the act. ’ ’ The parties agree that both employers were bound by the Workmen’s Compensation Act. They were bound automatically. They were also bound by their own election. It follows that all employees of the respective parties, while engaged in the performance of the duties of their employment, were also bound by the act. The language of the first paragraph of section 29 of the act (par. 166, ch. 48, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 143.44]) is unambiguous. I agree with the defendant that to say that the words “other persons bound by this act” as used in section 29 should be read “other employers bound by this act,” is, in effect, to rewrite the statute upon the assumption that the legislature inadvertently used the word 1 ‘person” instead of the word ‘ ‘ employer. ’ ’ The court is asked to ignore the literal text of the statute on the ground that otherwise the defendant, although found guilty of negligence, would escape responsibility for his own tort. This argument ignores the fact that section 29 does not nullify the liability of another employer or employee to respond in damages for negligence or wilful misconduct, but (1) transfers the right of action from the injured employee or his personal representative to the employer of the injured employee, and (2) fixes the limit of damages at an amount not exceeding the aggregate compensation payable under the act, in this case, $5,625.90. It is clear that Hoover Herman, the defendant, was bound by the act. Should he be injured, his compensation would be limited by the provisions of the act. So also, the extent of his liability is controlled and limited by the act. In my opinion, the judgment should be reversed and a judgment for costs entered against plaintiff.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Urban Tracey, Receiver of the National City Bank of Ottawa, Illinois, Appellant, v. John Shanley and May Shanley, Appellees.
    Gen. No. 9,612.

      Heard in this court at the May term, 1941.
    Opinion filed September 23, 1941.
    George V. B. Weeks, of Ottawa, for appellant.
    Duncan & O’Conor, of Ottawa, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

The receiver of the National City Bank of Ottawa, Illinois on March 30,1933 recovered a judgment in the circuit court of LaSalle county against John Shanley and May G. Shanley for $9,313.95 and $5.25 costs. The suit was brought upon certain notes theretofore executed by the said John Shanley and May G. Shanley to the National City Bank of Ottawa. On the day the judgment was rendered, an execution was issued which was duly returned unsatisfied. On January 10, 1939, the judgment debtors paid $3,000 to the receiver upon this judgment, and on May 2, 1939 paid the further sum of $3,289.44 thereon. On February 28, 1940, the attorney for John Shanley and May G. Shanley, the judgment debtors, brought to the office of the receiver in Ottawa, the sum of $3,029.76 in currency and silver and tendered it to the receiver in full payment and satisfaction of the judgment obtained on March 30, 1933. The receiver refused to so accept the tender but the attorney stated that he was going to leave it and thereupon placed the money on the table and walked out of the receiver’s office. After the attorney had left, the deputy receiver then in charge placed the money in a safety-deposit box in the vault of the National City Bank where it has since remained. On the same morning, February 28, 1940, the clerk of the circuit court, at the request of the receiver and his attorney, issued an execution against the Shanleys for the sum of $3,024.51, being the balance remaining unpaid on the judgment, together with interest thereon amounting to $2,914.58 and for costs. The judgment debtors, on March 1, 1940, entered their motion to recall and quash this execution and praying for an order finding this judgment fully paid. This motion, upon a hearing, was sustained and in its order, the court found that on February 28,1940, the judgment debtors paid to the receiver the sum of $3,024.51 in full satisfaction of the balance due upon the judgment as of the date it was entered together with the further sum of $5.25 in full of all court costs, and that the receiver accepted the said payments and thereby said judgment was satisfied. The court further found that on February 28, 1940, interest had accrued upon said judgment, which figured at 5 per cent per annum, amounted to $2,914.58, that this amount of interest did not form or constitute any part of the judgment and that no part of this sum could be collected by execution as more than 5 years had lapsed between the date of the entry of said judgment and the date of this execution. The order directed the receiver to indorse upon the judgment docket containing the entry of the original judgment, the payment of $3,024.51 and $5.25 court costs in full satisfaction and discharge of said judgment, and in the event of his failure so to do within 30 days that' the clerk of the circuit court should make such entries. To reverse this order, the receiver prosecutes this appeal.

The record discloses that the receiver, upon the request of counsel for appellees, on May 11, 1939, furnisked counsel with the following statement of the . status of this judgment:

The record also discloses that the execution issued on February 28, 1940 followed this statement and recited that the balance remaining unpaid on the principal amount of the judgment was $3,024.51, and directed the collection of that amount together with interest to be computed at 5 per cent on the original amount of $9,313.95 from March 30, 1933 to January 10, 1939 (being the date of the payment of $3,000) also interest on $6,313.95 from January 10, 1939 to May 2, 1939 (being the date of the payment of $3,289.44) and also interest on $3,204.51 from May 2, 1939 until the same is paid.

It is insisted by counsel for appellees that inasmuch as the receiver did not credit any part of the $3,000 paid on January 10, 1939 or any part of the $3,289.44 payment made on May 2, 1939 to the interest that had accrued at these respective dates, that no interest can be collected by appellant on this judgment. Counsel argue that this judgment was rendered on March 30, 1933 and that more than 5 years had elapsed between that date and February 28, 1940 when the alias execution was issued which was quashed by the trial court. In support of this contention, the only case cited and relied upon by their counsel is Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480. It appeared in that case that on February 16, 1926 appellant’s intestate recovered, in a special assessment proceeding for land taken, a judgment, the net amount of which was $54,554. On October 28, 1926, this judgment was paid. On December 5,1934, being more than 8 years after the judgment was rendered and more than 8 years after it was paid, suit was brought in the circuit court of Cook county against the city to recover interest upon the judgment from February 16, 1926 (the date of its rendition) to October 28, 1926 (the date it was paid) and also to recover interest on such unpaid interest after October 28, 1926. The trial court rendered judgment for $1,909.24 being interest at the rate of 5 per cent from February 16, 1926 to October 23, 1926. The Appellate Court held that whatever claim for interest the plaintiff had was barred by the statute of limitations and the Supreme Court affirmed that judgment. In the course of its opinion, the Supreme Court said that the recovery of interest in this State, not contracted for, finds its only authority in the statute, that the right to interest on a condemnation judgment was well settled, that accruing interest recoverable by virtue of the statute was not a part of the judgment and that interest on a judgment should be distinguished from costs. The court quoted from section 15 of the statute of limitations and stated that the action was one to recover interest on a judgment and not upon the judgment itself as the judgment had been paid and that such an action fell within the 5 year statute and was barred thereby.

Section 4, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.154] provides that the person in whose favor any judgment of a court of record may be obtained, may have execution thereon in the usual form, directed to the proper officer of any county in the State to execute. Section 6 of the same chapter provides that no execution shall issue upon any judgment after the expiration of 7 years from the time the same becomes a lien, except upon a revival of the same by scire facias. Section 7 of the same chapter provides: “Every execution issued upon a judgment shall direct the collection of interest thereon, from the date of the recovery of the judgment until the same is paid, at the rate of 6 per centum per annum.” Section 3, ch. 74, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 67.03] provides in part: “Judgments recovered before any court or magistrate shall draw interest at the rate of five (5) per centum per annum from the date of the same until satisfied.”

Interest is recoverable in this State either by an independent suit or by way of execution as provided by statute. Blaine v. City of Chicago, 366 Ill. 341 and authorities there cited. A judgment bears interest from the date of its rendition, Paskewie v. East St. Louis & Suburban Ry. Co., 281 Ill. 385. Interest upon a judgment is not part of the judgment, but an incident thereto, and arises solely by virtue of the provisions of the statute. Feldman v. City of Chicago, 363 Ill. 247.

In People ex rel. Weiboldt Stores v. City of Chicago, 368 Ill. 421, a judgment awarding a writ of mandamus to compel a municipality to pay a judgment rendered in a condemnation proceeding on July 26, 1927, together with interest thereon to May 15, 1936 was sustained, the court stating that it was settled law in this State that a condemnation judgment was a final judgment, and drew interest under section 3 of the Interest Act from the date of the judgment, and that such interest accrued under the statute during the time the judgment creditor remained in possession of the condemned property and that the value of such possession could not be applied to reduce the amount of interest.

The judgment upon which the execution, which was recalled and quashed by the order of the trial court in the instant case, was rendered on March 30, 1933. On that same day, an execution was issued thereon. Less than 7 years thereafter, and on February 28, 1940, the execution involved in this proceeding was issued. Its issuance was authorized by the clear and unequivocal provisions of the statute, and unless the judgment upon which it issued had been satisfied, the trial court erred in recalling and quashing it. Appellees’ contention that the tender of the balance remaining unpaid upon the principal of the judgment, operated as a full and complete satisfaction of the judgment and accrued interest is not sustained by the authorities. In 34 C. J. 688 (sec. 1059) it is said: “There can be no complete satisfaction of a judgment by payment unless the payment covers interest, if any, and the costs chargeable against defendant.” To the same effect is Feldman v. City of Chicago, supra. The tender of appellees did not include any accrued interest. It was made to procure a complete satisfaction and discharge of the judgment. The receiver rightly declined to so accept it.

Interest is defined to be the compensation which is paid by a debtor to his creditor in recompense for his detention of a debt. Bouvier’s Law Dictionary 576. The statute of limitations begins to run against a judgment from the date of its rendition, 34 C. J. 1087, sec. 1534, and interest upon a judgment is generally held to commence to run from the date of the entry of the judgment, 17 C. J. 923, sec. 219, Healy v. Protection Mut. Fire Ins. Co., 107 Ill. App. 632, continues to run until the judgment debt is paid, 33 C. J. 238, sec. 133, and no demand is necessary to start the running of interest on judgments duly entered. 33 C. J. 235, sec. 126.

A creditor may recover for the interest which accrues before the principal becomes due, yet, if he forbears to bring his action for that purpose, as he may, the interest remains incident to the debt, and may be recovered with it, and that, too, although the interest fell due a longer time before the action was brought than the statute of limitations provided. 33 C. J. 255, sec. 178. For instance in Smolikowski v. Laibe, 170 Ill. App. 181, which was an action to recover upon a note dated December 23, 1889, due 5 years thereafter, without interest, for the principal sum of $800 it was held that under sec. 2, ch. 74, supra, the plaintiff was entitled to recover, in addition to the principal sum, interest thereon at 5 per cent for more than 10 years. Again in a suit to recover upon a note dated March 1, 1895, which matured February 22, 1910 and which provided for interest at the rate of 6 per cent payable annually, it was held that the accruing of interest from year to year was not separated from the principal demand, that it was a mere incident to the debt and followed the principal at the rate specified in the contract, and that the statute of limitations did not begin to run until the note became due and did not bar the recovery of principal and interest. Ade v. Ade, 181 Ill. App. 577.

In the instant case in less than 6 years after the judgment was rendered, the judgment debtors voluntarily paid the judgment creditor the sum of $3,000 and 4 months later, paid an additional $3,289.44. No directions were given the judgment creditor as to how these payments should be credited. Under the statute, the judgment creditor was entitled to recover interest at the statutory rate for the detention of the money which the court found, when it rendered judgment on March 30, 1933, to be due him. When the judgment debtors paid the $3,000 on January 10, 1939, that sum exceeded the amount of interest then due upon the judgment and as no directions were given by the judgment debtors to the judgment creditor as to the manner in which this credit should be applied, the judgment creditor had a right to compute the interest upon the judgment to that date, add it to the judgment and then apply the $3,000 to the payment thereof. After so doing, when the further payment of $3,289.44 was made by the judgment debtors to the judgment creditor on May 2, 1939, the judgment creditor might very properly compute the interest upon the sum remaining due on January 10, 1939, after crediting the judgment and interest with the $3,000, paid that day, from January 10, 1939 to May 2, 1939, add that amount of interest to the sum remaining due on January 10, 1939 after the $3,000 credit had been given, and credit that total with said sum of $3,289.44, so paid by the judgment debtors on May 2, 1939.

Hodgdon v. Hodgdon, a New Hampshire case reported in Richardson and Woodbury’s reports of the Supreme Court of Judicature at page 169, was an action of debt upon a judgment for $280 and costs amounting to $66.89. It appeared that after the judgment was rendered, the judgment debtor paid to the judgment creditor several sums aggregating $345.75, which had been accepted as part satisfaction of the judgment. It was contended by the defendant that the plaintiff was entitled to recover only the difference between the sums paid and the amount of the judgment, being $1.14 and interest only upon that difference. In its opinion, the court said that as a part of the principal remained unpaid, an action therefor could be maintained and as an incident to it, the plaintiff was entitled to recover as damages for the detention of his debt, interest upon the judgment to be computed in the same manner that interest is computed on a note upon which payments had been made and that a judgment creditor had a right to forbear to collect the whole amount of the judgment, in order to enable him by an action of debt upon the judgment, to recover the interest. “Nor,” continued the court, “can this right be defeated by a tender of the balance due upon the judgment and upon the interest on that balance. A judgment creditor is entitled to receive the amount of his judgment and interest upon it until paid, and a tender of anything short of this, is no bar to an action of debt upon the judgment.”

The Blakeslee Storage Warehouse case, supra, is clearly distinguishable from the instant proceeding. In that case whatever amount of interest was due the judgment creditor, became due when the judgment was paid, and in an independent suit the judgment creditor sought to collect interest which had accrued previous to the time the judgment had been paid. There the judgment had been paid in full and accepted by the judgment creditor more than 5 years before it instituted its suit solely to collect interest. The instant proceeding involves the issuance of an execution for the collection of the balance due on the principal amount of the judgment together with the interest which had accrued thereon from the date of the rendition of the judgment according to the applicable statutory provisions. Here the judgment has never been paid in full. The judgment debtors recognized the validity of the judgment, and made partial payments thereon in January and May 1939, and after the judgment creditor had accepted two such partial payments, the judgment debtors tendered a third sum in full payment of .the amount due the judgment creditor, ignoring entirely the statutory provisions which provided that a judgment should draw interest from the date of its rendition until satisfied. If appellees are permitted to prevail in this case, the several statutory provisions with reference to interest upon a judgment, the time when an execution upon a judgment may issue and the mandatory provision of the statute, that such an execution shall direct the collection of interest from the date of the recovery of the judgment until the same is paid, are all rendered nugatory. The Blakeslee Storage Warehouse case did not hold that interest was not recoverable at all, or that a judgment debtor could satisfy a judgment against him by the payment of the principal amount of the judgment without interest.

While interest is not a part of the judgment, as held in the Blakeslee case, it is an incident to the judgment and the right to collect it accrues only when it becomes due and is unpaid. No interest accrued until the day following the rendition of this judgment and payment on the day the judgment was rendered of the amount of the judgment and costs would have been a complete satisfaction. Interest on a judgment does not accrue at any one certain date but its accrual is from day to day, and the accruing interest is not separated from the judgment and the statute of limitations does not, run against it until the judgment itself is barred by the statute. Certainly the statute did not run against the accruing interest so long as none of the principal of the judgment was paid and the right to collect interest ran along with the right to collect the judgment during that time at least. The first payment on the judgment was made January 10, 1939 so that would be first date certain from which it could be said that the statute began to run as against the interest. On this theory the execution having been issued on February 28, 1940 was within the limitation period and properly directed the sheriff to collect interest as specified in said execution.

In Ferry v. Ferry, 2 Cush. (Mass.) 92 it appeared that by the terms of the note sued on interest was payable annually and that more than 20 years had elapsed since the first instalment of interest became due but the court held that the specified interest could be collected with the principal sum and that collection of the interest, so long past due, was not barred by the statute of limitations. In its opinion, the court said: “The interest stipulated to be paid is regarded as incident to the debt and recoverable with it; and although the creditor may recover for the interest which accrues before the principal becomes due, yet if he forbear to bring his action for that purpose, as he may, the interest remains incident to the debt and may be recovered with it.”

The trial court erred in sustaining appellees’ motion to recall the execution issued on February 28, 1940, and in quashing the same, and in entering the order appealed from. The judgment order will be reversed and the cause remanded to the circuit court of LaSalle county with directions to overrule appellees’ motion and enter an order in conformity with the views expressed in this opinion.

Reversed and remanded with directions.


author: Opinion filed by Justice Hates.

text:
    Robert Ball, by Charles Ball, His Father and Next Friend, Appellee, v. Smith Hainey, Defendant, and Reatha Hainey, Appellant. Smith Hainey, Appellant, v. Robert Ball, Appellee.
    Gen. No. 9,251.
    Heard in this court at October term, 1940;
    opinion filed June 23, 1941;
    rehearing denied October 17, 1941.
    Hawbaker & Sievers, for appellants; N. E. Hutson and B. E. Morgan, for appellee.
   Opinion filed by Justice Hates.

‘ ‘Not to be published in full.”


author: Opinion by Justice Hayes.

text:
    Lena Roberts, Appellant, v. Hiram A. Lane, Executor of Estate of Charles P. Mundy, Deceased, Appellee.
    Gen. No. 9,282.
    Heard in this court at April term, 1941;
    opinion filed June 23, 1941;
    rehearing denied October 17, 1941.
    David Allison and J. R. Dean, for appellant; Alfred A. Johson and Willard Ice, for appellee.
   Opinion by Justice Hayes.

“Not to be published in full.”


author: Opinion by Justice Dove.

text:
    Clarence Rosene, Appellant, v. Fredda Marie Rosene, Administratrix of Estate of Nels O. Rosene, Deceased, Appellee.
    Gen. No. 9,600.

      Heard in this court at October term, 1940;
    opinion filed September 23, 1941.
    Sheldon & Brown, for appellant; Jacob Cantlin, Samuel Rubin and Ward & Ward, for appellees.
   Opinion by Justice Dove.

“Not to be published in full.’’


text:
    Joanne Semrow, Appellant, v. John Grohar, Jr., Appellee.
    Gen. No. 9,627.

      Heard in this court at February term, 1941;
    opinion filed September 23, 1941.
    William H. Fields, for appellant; Francis J. Loughran, for appellee.
   Opinion by Justice Dove.

“Not to be published in full.”


author: Mr. Justice Culbertson

text:
    William T. Simpson et al., Appellees, v. E. S. Adkins et al., Defendants, Chicago, Wilmington and Franklin Coal Company and E. S. Adkins, Appellants.

      Heard in this court at the May term, 1941.
    Opinion filed October 21, 1941.
    Rehearing denied November 19, 1941.
    Adams, Hawxhurst, Hawley & White, of Chicago, Roy C. Martin and Carter Harrison, both of Benton, for certain appellant.

      J. G. Van Keuren, of Du Quoin, and Feirich & Feirich, of Carbondale, for certain other appellant.
    Kefner & Harris, of Evansville, Kern, Pearce & Pearce, of Carmi, and Allen K. Swann, of Evansville, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver, without notice and without bond, and authorizing him to take possession of and drill a certain oil well and develop a certain oil and gas lease of premises situated in Franklin county, Illinois. The complaint filed by the appellees (hereinafter called plaintiffs), charged that one Elizabeth Simpson (the owner of certain premises two rods in width) died intestate, leaving seven children as her heirs; that five of the seven surviving children made an oil and gas lease in favor of one Williams, which oil and gas lease was ratified by a sixth child. The complaint states that on February 24, 1941, the lessee, Williams, assigned the oil and gas lease to Gordon G. MacLean Crude Oil Purchasing Corporation, a Delaware corporation (one of the plaintiffs), and that on April 25, 1941 such corporation assigned said oil and gas lease to the plaintiff, Russell, which assignment is attached to the complaint. Five of the seven children of the deceased Elizabeth Simpson likewise joined as plaintiffs, one daughter was made a defendant, and the unknown heirs of the remaining son were made defendants. Lessee Williams was, likewise, made a defendant.

It is averred that defendants Adkins and Chicago, Wilmington & Franklin Coal Company claim all of the oil rights under the land. The complaint, likewise, avers that the conveyances in the chain of title to the defendant Coal Company constitute clouds upon the title of the plaintiffs and should be canceled. The complaint likewise avers that there are producing oil wells on either side of the tract, which will drain oil from under the tract involved. The complaint sets forth that defendant Adkins obtained an oil and gas lease from plaintiff Isaac M. Simpson, Jr., about six months before the lease was made to Williams, and it is, likewise, stated that at various dates thereafter, Adkins obtained oil and gas leases from other- grantors in the chain of title, and that on September 6, 1940, he obtained an oil and gas lease covering all of the premises (together with certain adjoining lands), from the defendant Coal Company. The lease from the Coal Company was dated about three months prior to the first oil and gas lease to Williams.

The complaint contains general charges of fraud or mistake as a basis for setting aside all of the leases and conveyances through which the Coal Company and Adkins claim. The complaint states that on April 12 and 14, 1941, Adkins obtained an oil and gas lease from six of the seven heirs of Elizabeth Simpson, which leases are attached as exhibits and contain provisions that the tract in controversy is used for such purposes that the lessors desire that no well be drilled, nor obstructions placed thereon, and that said tract is communitized with the eighty acres of which it is a part, and such lessors are to receive royalty payments in proportion that the acreage of the tract bears to the entire eighty acres. The complaint makes general charges of fraud as a basis for cancellation of such leases. There is a further averment in the complaint that plaintiff Bussell, the second assignee, cannot safely expend funds to drill an oil well and develop the tract; that such activity would involve an expenditure of approximately $65,000, and that because of the fact that there is an outstanding interest in the tract, which is not merged and included in his oil and gas lease, said Bussell avers that he cannot safely be required to develop the premises. It was further averred in the complaint that oil wells on either side of the tract are draining the oil and that unless a receiver was appointed to drill an oil well on the tract, there would be no off-set wells; that plaintiffs except not to expend the money to be derived from the oil, except so much as is necessary to drill the oil wells, develop the property, and carry on the oil well operation; and that no bond should be required of plaintiffs. The complaint concludes with a prayer that certain clouds on the title be canceled; that the court determine the ownership of the outstanding one-seventh interest; that plaintiffs, together with the owner of the outstanding one-seventh interest, be declared to be the owners of the tract, subject to the interests of plaintiffs Bus-sell and Gordon G. MacLean Crude Oil Purchasing Corporation, assignees of the lease, and also subject to the rights of Williams the original lessee; that certain royalty assignments be canceled; that a temporary receiver be appointed, with full power and authority to enter in and upon the tract for the purpose of immediately drilling for oil and gas, and that such receiver be appointed forthwith and without notice and without bond. The complaint, likewise, prays for certain injunctive relief against defendant Adkins.

The circuit court of Franklin county entered an order, which was issued without notice and without bond being required of plaintiffs, appointing a receiver, directing him to enter into and take possession of the premises, to drill and operate the premises for oil, to pay out of the seven-eights working interests of the oil produced, the expenses of the receiver, receiver’s bond premium, fees for receiver’s attorney, and the cost and expense of drilling, developing and operating the premises'.

Defendants thereafter gave notice of their motion to vacate the order, and accompanied said motion by an affidavit of defendant Adkins, setting forth that the tract is now and has been for many years, a public highway in Franklin county, Illinois; that the defendant Coal Company is the owner of an interest in and to the oil and gas underlying such premises, and to the oil and gas which may be recovered from all of the premises immediately adjoining the tract entirely surrounding what is termed the" roadway strip” for which a receiver was appointed. It is contended that the Coal Company and Adkins have the exclusive right to the oil which may be recovered from approximately 140 acres immediately adjoining the roadway (eighty acres on the west and sixty acres on the north side), and that if the so-called “roadway strip” is developed for oil and gas, it would be necessary to drill off-set wells, costing approximately $15,000 each, to prevent the adjoining premises from being drained of oil.

The motion to vacate set forth that the action of the court in appointing the receiver, without notice and without bond by plaintiffs, was invalid and contrary to the statute; that the complaint was insufficient to warrant the appointment of the receiver; that the court was without jurisdiction to appoint a receiver to drill an oil well on the property in question, and to authorize the receiver to expend $65,000 for such purpose; that the plaintiffs do not own or have a lease from all of the owners of the oil and gas underlying the premises; that if plaintiffs have the right to drill oil wells, the allegation that they cannot safely expend the money to do so is unsufficient to warrant the appointment of a receiver; that the appointment of a receiver will cause damages to the appellant Coal Company, requiring off-set wells as hereinabove stated; that the premises described in the complaint and for which the receiver was appointed constitute a public highway; that certain acts by the township officials conferred no rights to drill upon the public highway; and that the verification of the complaint was insufficient; that the order of the court appointing the receiver was insufficient and failed to make requisite and necessary findings; and that the Act of July 1, 1939 (1939 Ill. Rev. Stat., ch. 104, secs. 25-33 [Jones Ill. Stats. Ann. 93.50-93.58]) relating to oil and gas interest in land, furnishes a complete and adequate remedy for the alleged claims of the plaintiffs. The motion was presented to the court which had appointed the receiver, and, after being argued by attorneys for both plaintiffs and defendants, was overruled. In such order, the court required the plaintiffs to give bond in the sum of $5,000. Defendants (Coal Company and Adkins), on appeal to this court, contend that the court erred in entering the order appointing the receiver, without notice and without bond, and that the court, likewise, erred in entering the order overruling the motion to vacate, as herein set forth.

It also appears from the briefs submitted in this court that after the filing of notice of appeal, the circuit court of Franklin county has authorized the drilling of additional oil wells by the receiver. Defendant-appellants rely for reversal in this cause upon the contentions: (1) That the court below primarily violated the statute in appointing a receiver without notice and without bond (1939 Ill. Rev. Stat., ch. 22, sec. 54 [Jones Ill. Stats. Ann. 106.19]); (2) That the complaint did not justify the appointment of a receiver because its verification was insufficient under the doctrine of Palmer Grill, Inc. v. Nory, 268 Ill. App. 292; (3) That the interlocutory order appointing a receiver is insufficient in that it fails to make requisite and necessary findings which would excuse the giving of a bond by plaintiffs (by analogy to the case of Sherman Park State Bank v. Loop Office Bldg. Corp., 238 Ill. App. 450); (4) That, basically and fundamentally, the allegations of the complaint are wholly insufficient to justify the appointment of a receiver; (5) That the tract in controversy is a public highway and that the court was without jurisdiction to appoint a receiver to take possession and drill an oil well thereon; and (6) That the plaintiffs have a complete and adequate remedy under the provisions of sections 25 to 33 of chapter. 104 of the 1939 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 93.50-93.58] relating to drilling of oil wells by plaintiffs who own a majority in interest where lands are being drained by wells on adjoining lands. Plaintiffs denied the contentions of the defendant-appellants herein, and set forth, among other things, that the defendants had a hearing upon the motion to vacate, which served all the purposes of a notice in the first instance, and that defendants have waived objections by participating in proceedings thereafter.

It is not denied by either party that the power to appoint a receiver in any case is a power possessed and exercised by courts of chancery, as a part of their general preventative jurisdiction, and that receivership is a remedy to be applied by a court whenever, in its judgment and discretion, the exercise of such power is necessary to prevent injury and to do complete justice. (Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103; Taylorville Savings Loan & Building Ass’n v. Korenjack, 275 Ill. App. 616.)

It is likewise clear that a court should act to appoint a receiver, without bond, only when good cause is shown therefor, and upon notice and a full hearing (1939 Ill. Rev. Stat., ch. 22, sec. 54 [Jones Ill. Stats. Ann. 106.19]). The appointment of a receiver, without notice, is restricted to such cases of emergency as makes such appointment absolutely necessary (Schmidt v. Johnson, 166 Ill. App. 623). It is well established by many cases cited in this State that a receiver pendente lite should not be appointed unless it is apparent from the showing made in the complaint that there is danger of the subject of the litigation being dissipated, and grounds which induce a court to interfere must be very strong and there must be a clear case of fraud or immediate danger to the property. In the instant case the complaint contains only general allegations of fraud and sets forth no ultimate facts as to the nature of the alleged fraud.

The courts of this State have many times concluded that fraud can be alleged only by allegation of facts constituting the fraud and that the word “fraudulently” does not allege anything and is a mere expletive, or a word of abuse (Anderson v. Anderson, 339 Ill. 400, 411; Ashton v. Macqueen, 361 Ill. 132, 143; Felt v. United States Mortgage & Trust Co., 231 Ill. App. 110).

One section of the complaint sets forth that plaintiffs Isaac M. Simpson, Jr., and his wife, signed and acknowledged a certain oil and gas lease to Adkins, and that since so signing and acknowledging the same, have learned that the instrument was not identically as represented, and that the co-owners had not agreed to any such instrument, and that the signatures of such plaintiffs were obtained by fraud and misrepresentation, and without any consideration therefor. Even as to such allegations, the complaint fails to state facts which, as a matter of law, would entitle the complainant to the relief of receivership prayed for. A party in possession of his mental faculties, is not justified in relying on representations made when he has an opportunity to ascertain the truth of the representations before he acts. If he does not avail himself of the means of knowledge open to him, he cannot be heard to say that he was deceived by misrepresentations. If he has an opportunity to read the instrument and does not avail himself of the opportunity, he cannot after-wards complain (Dickinson v. Dickinson, 305 Ill. 521; Rugen v. Van Berschot, 274 Ill. App. 359, 371).

It is apparent that the averments of the complaint were insufficient to authorize the appointment of a receiver. Similarly, the allegation, in general terms, that the rights of the plaintiffs are in immediate danger of being lost is but a conclusion of the pleader. As a matter of fact, the coincidence of the assignment to plaintiff Bussell four days prior to the institution of the receivership action, and the nature of such assignment, suggests the possibility that the emergency upon which plaintiffs place such emphasis was largely within the control of the plaintiffs.

Beceivership is a high and extraordinary remedy and should be exercised with caution. Plaintiffs should show first that they have a clear right to the property (Bagdonas v. Liberty Land & Investment Co., supra), and a receiver should not be appointed unless the showing made establishes a reasonable probability that the party asking for such receiver will ultimately prevail in the cause (Ruprecht v. Henrici, 113 Ill. App. 398, 402). Plaintiffs have obviously failed to justify the basic requirements authorizing the appointment of a receiver, in the instant case. We must therefore conclude that a receivership cannot be justified under the facts as presented by the complaint.

We, likewise, see no reason why the Majority Interest Act referred to (1939 Ill. Rev. Stat., ch. 104, sec. 25-33 [Jones Ill. Stats. Ann. 93.50-93.58]) would not have provided an adequate remedy to plaintiffs, under the circumstances, but we are not passing upon such problem, nor on the other points raised by the defendant, including the purported public highway aspect of the tract, for the reason that we feel the order of the circuit court of Franklin county appointing the receiver, and the order denying the motion to vacate such order, were not justified, as a matter of law. Such orders will, therefore, be reversed and this cause will be remanded, to the circuit court of Franklin county, Illinois, with directions to vacate the order of receivership and to proceed in such cause in accordance with the views expressed in this opinion.

Reversed and remanded with directions.


author: Mr. Presiding Justice Stone

text:
    James G. Cooney et al., Appellants, v. City of Belleville, Illinois, Appellee.

      Heard in this court at the February term, 1941.
    Opinion filed October 27, 1941.
    Johnson & Johnson and Turner, Holder & Ackermann, all of Belleville, and Theodore A. Kolb, of Chicago, for appellants.
    L. N. Nick Perrin, Jr., City Attorney, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an action at law, commenced in the circuit court of St. Clair county by James Gr. Cooney, sanitary and civil engineer of Belleville, and the copartnership of Consoer, Townsend and Quinlan, consulting engineers of Chicago, appellants (hereinafter designated as plaintiffs) against the City of Belleville, appellee (hereinafter designated as defendant).

The complaint filed consisted of two counts. The first count is based upon an agreement between plaintiffs and the City, date of June 20, 1938 for engineering services to be rendered by plaintiffs, in the construction of a sewage disposal plant, for defendant municipal corporation. That count recites that there was due plaintiffs the sum of $20,511.89, less a credit of payments advanced of $13,583.08, leaving a balance claimed to be due plaintiffs of $6,928.81. It was stipulated at the trial that plaintiffs should allow a $3,000 credit provided in the contract.

The second count recites that James Gr. Cooney was a resident engineer during the months of September, October, November and December 1940, at the rate of $350 a month and that there was due him the sum of $1,400. This is based upon a resolution alleged to have been passed by the city council of Belleville. The defendant by its answers denied substantially all the charges. Trial was before the court, without a jury. The court, in a written opinion, found that plaintiffs had been overpaid by the City, and that the defendant was not indebted to plaintiffs or either of them, under either count of the complaint, and the judgment of the court was in favor of the defendant, from which judgment plaintiffs prosecute their appeal to this court.

Principal errors assigned are, failure of the trial court to find the issues for plaintiffs; the finding the issues for defendant; failure to find for plaintiff Cooney on count two; denying the motion to file an additional count, and in not ordering the issues of the trial limited in accordance with a resolution of the city council of Belleville.

The decision of this action insofar as the first count is concerned depends upon a construction of the contract between the parties litigant, paragraph “C” of the contract being decisive of the first count. Paragraph “C” of the contract provides as follows, “For and in consideration of the full and true performance of the engineering services involved in paragraphs “A” and “B,” the Municipality agrees to pay the Engineers a sum equal to four per cent (4%) of the final cost of actual construction, based upon work actually done and materials used, payable three per cent (3%) as soon as funds are available for the construction of the project and the remaining one per cent (1%) in monthly installments as construction work progresses. Provided, However, that the sum of Three Thousand Dollars ($3,000.00) which has been paid to the Engineers shall be deducted from the fees allowed.”

Plaintiffs contend that under the terms of the agreement they were entitled to 3 per cent of the estimated cost of the project as soon as the funds were available for the construction, regardless of services performed by them, and as matter of fact, if no services were performed by them at all, in and about the construction of the project. Defendant contends that 3 per cent of the cost was not due plaintiffs until actual construction, based upon work actually done and materials used. Paragraph “B” of the contract in question recited that the municipality had then procured funds to construct the plant. According to plaintiffs their fee of 3 per cent was then immediately due and payable.

Although the contract is clear and unambiguous as to the amount of compensation to be paid for engineering services, that is, 4 per cent of the final cost of actual construction based upon work actually done and materials used, it is ambiguous as to when or in what amounts payments are to be made. The language used by the parties provides that 3 per cent shall be payable as soon as funds are available for the construction of the project and 1 per cent in monthly instalments, as construction work progresses. The question immediately arises as to what the 3 per cent refers to. It is obviously impossible, before the plant has been completed to determine what the final cost of actual construction will be and award plaintiffs 3 per cent of that amount. Plaintiffs contend that the 3 per cent refers to 3 per cent of the contract price. However, the language used by the parties does not in any way carry out this construction.

It is urged in this court, as it was argued in the trial court, that the construction placed upon the contract by the parties should be accepted by the court. However, so far as the first count is concerned we find nothing in the record of this case which would assist the court in arriving at the construction relied upon by plaintiffs. In one instance at least (The East Creek project) plaintiffs were paid even before any work was started, on the basis of 3 per cent of the estimated cost of the project, and there is no instance that we have been able to discover in the record, where a 3 per cent payment was made solely upon the basis of the contract price. Counsel for plaintiffs in their argument say, that the payment provisions of paragraph (C) are in harmony with the well-established methods of payment followed in the construction industry. That therefore after engineers have made preliminary and then final plans, including shop drawings and detailed specifications, after all approvals of public bodies have been secured; after bids have been called for, proposals prepared and the contract has been let; if the money to pay them is in the treasury, the engineers should have three-fourths of their pay.

In the absence of specific agreement the law will presume that the parties contracted with reference to the general customs and usages of the business or profession involved. Carroll, Schendorf & Boenicke, Inc. v. Simons, 245 Ill. App. 586; El Reno Wholesale Grocery Co. v. Stocking, 293 Ill. 494, aff’g 215 Ill. App. 393; Gilbert & Co. v. McGinnis, 114 Ill. 28; Mobile Fruit & Trading Co. v. Judy, 91 Ill. App. 82; Leavitt v. Kennicott, 157 Ill. 235. A particular custom or general usage may be proved to vary the usual meaning of the language of the contract, or to import a term not expressed therein, but these are matters of which the courts are not required to take judicial notice. There is no evidence in this record of any such well-established usage or custom governing the structural engineering profession.

The fees of-the engineers, as provided by the contract are not based upon the preparation of the plans and specifications of the project nor upon the estimated costs of the work and materials. The contract reads, under paragraph “C” that “the Municipality agrees to pay the Engineers a sum equal to four per cent (4%) of the final cost of actual construction, based upon work actually done and materials used, payable three per cent (3%) as soon as the funds are available for the construction of the project and the remaining one per cent (1%) in monthly installments as construetion work progresses____” We certainly do not understand that language to mean that the plaintiffs were entitled to an immediate payment of 3 per cent of the estimated cost of the project, immediately upon the signing of the contract by the parties to the suit, nor upon completion of the plans and specifications, merely because funds were available for the construction of the work, particularly, as stated above where there is no evidence of any general usage or custom, which would vary the terms of the written contract.

It is the opinion of the court that plaintiffs are not entitled to 3 per cent of the estimated cost of the project, but they are entitled to 4 per cent of the cost of the actual construction based upon work actually done and materials used. The only way that can be absolutely determined is when the contractor finally finishes his work and the job is accepted by the engineers and the City. We do not believe the court erred in finding for the defendant on the first count.

In the second count of the complaint, James G. Cooney, is the sole plaintiff, and in that count seeks to recover the sum of $350 a month for a period of four months for services rendered as resident engineer, based upon the alleged passage of a resolution of the city council of Belleville, date of August 21, 1939. While the original contract, which is relied upon, in count one, is expressly made a part of count two, counsel for plaintiff in his brief says, "Consequently no recovery is sought under count two, based upon this Engineering contract, but only on the council proceedings of August 21, 1939 and the subsequent carrying out of that agreement.” The original contract provided that plaintiffs should furnish a resident engineer who should supervise the work during the construction at a salary of $350 a month. There seems to be some difference of opinion as to whether this meant that the resident engineer would be paid by the City or by those who were designated as engineers, but inasmuch as Cooney’s employment under this contract expired as of September 1, 1939, and the four months claimed are for September, October, November and December of 1939. and in light of the above statement of counsel, it would seem that it is not necessary to interpret this part of the contract.

However, the record does not disclose that this resolution of August 21, 1939 was ever formally passed by the city council. Exhibit B introduced by plaintiff, and admitted by the court which contains this alleged resolution, does show that the council did pass a motion to employ Cooney for the period not to exceed twelve months. The motion did not state for what purpose Cooney was to be employed or the amount of his compensation. After the hearing before the trial court, plaintiff Cooney made a motion to amend the complaint by the addition of an additional,count, basing his claim for compensation for his services in that court upon the action of the city council in passing the motion. This apparently was predicated upon paragraph 170, subpar. 3 of the Civil Practice Act, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.046] providing that a pleading may be amended at any time, before or after judgment to conform the pleadings to the proofs. The trial court denied such motion, and this is urged as error in this court.

As has been stated above there was no provision in the motion' passed by the city council for any specific sum, as the compensation to be paid plaintiff Cooney. There is no evidence in this record, as to whether or not $350 a month is a reasonable compensation for the work done by Cooney. It may well be that plaintiff Cooney has misconceived his remedy, and should have brought a suit based upon an implied contract, for the reasonable value of his services to the city as resident engineer for the four months in question. But the second count in the instant suit, is based upon the express hiring, and an express contract. If the work was in fact done under a special contract, the plaintiff cannot recover under a quantum meruit. The express promise excludes any implied promise raised by the law. Miller v. Duntley, 264 Ill. 268, 106 N. E. 198; Ford v. McVay, 55 Ill. 119; Walker v. Brown, 28 Ill. 378, 81 Am. Dec. 287; Cast v. Roff, 26 Ill. 452; Brougham v. Paul, 138 Ill. App. 455; Brenzel v. Kirschner, 128 Ill. App. 136; Schiml v. Edgeworth, 118 Ill. App. 332; Ramming v. Caldwell, 43 Ill. App. 175; Ginders v. Ginders, 21 Ill. App. 522; Rollins v. Duffy, 14 Ill. App. 69.

We do not feel constrained to hold that the court erred in not finding for the plaintiff on the second count, for as stated above, the resolution upon which it was predicated was not formally passed by the city council; nor are we prepared to say that there was error in overruling the motion to allow the filing of the third count. The court heard the evidence, it was for him to say whether that count conformed to the proofs.

It is contended in all seriousness by plaintiff’s counsel that the court erred in denying the motion of the plaintiffs for the entry of an order giving effect to plaintiff’s exhibit 2, and in not ordering the issues of the trial limited in accordance with the resolution adopted by the city council of Belleville. By that resolution the city attorney was directed to withdraw all pleading in the case, so that the only issue to be decided by the court (so the resolution recited) was whether the monthly payment to Mr. Cooney of $350 a month was to be paid out of the 4 per cent of the final cost of construction as provided in the contract between the City and Mr. Cooney and his associates, or if the City is indebted to Mr. Cooney at the rate of $350 a month in addition to the 4 per cent of the cost of actual construction.

Courts are ordinarily not concerned with private arrangements between attorney and client, nor with instructions given attorneys by their clients, whether the client is an individual or corporation. If upon the trial of this case the city attorney, representing the defendant municipal corporation had advised the court that his client the City of Belleville had instructed him to withdraw his answer and to permit a default judgment, we question not, but what that would have been permitted by the trial court. But it certainly is not the law, that the city council of a municipal corporation, involved in litigation in the courts of this State, can by resolution control the making up of the issues to be tried by the court, and direct or even suggest to the courts what questions are to be decided in contested litigation. The trial court did not err in totally disregarding this resolution.

It was the judgment of the trial court, that all of the plaintiffs were not entitled to recover under the first count and that plaintiff Cooney was not entitled to recover under the second count. We are not inclined under the evidence in this case, and the pleadings, to disturb that finding. Findings of the court, in trials without a jury are entitled to the same weight as a jury verdict and will not be set aside unless manifestly against the weight of the evidence. Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180, 27 N. E. (2d) 1012.

While we have not recited all the facts shown by the evidence we have carefully considered the same and are of the opinion that the finding and judgment of the trial court was not contrary to the manifest weight of the evidence, and that no reversible error appears in the record. We may not in this opinion entirely agree with some of the reasoning of the learned trial court, as expressed in his written opinion, in arriving at his conclusions, but we do believe that Ms ultimate conclusions were correct. The judgment of the circuit court of St. Clair county will therefore be affirmed.

Affirmed.


text:
    Phillip L. Reilley and Harvey H. Reilley, Copartners, Trading as Reilley Brothers, Appellants, v. Agricultural Insurance Company of Watertown, New York, Appellee.
    Heard in this court at the May term, 1941.
    Opinion filed October 27, 1941.

      William P. Boynton and Green & Hoagland, all of Alton, for appellants; J. J. Middleton, of Alton, of counsel.
    Samuel Levin, of Chicago, Walter J. Chapman, of Alton, and Harry R. Begley, of Chicago, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an action at law upon a policy of insurance to recover for a fire loss, brought by appellants (hereinafter designated as plaintiffs) against appellee (hereinafter designated as defendant). The trial court entered judgment against plaintiffs and in bar of their action, from which judgment this appeal is prosecuted. The suit in the lower court was instituted prior to the adoption of the present Civil Practice Act, and the former practice was followed with reference to the pleading and procedure in the trial court.

The declaration filed by plaintiffs alleges the making of a contract whereby defendant insured certain property of plaintiffs’ against loss by fire; that such loss did occur, and defendants have refused to pay; that plaintiffs have complied with certain specified conditions precedent entitling them to recovery. Said contract of insurance is set forth verbatim in the declaration, and provided among other things, that, in the event of a loss, the amount of which could not be agreed upon by the parties, each side should select a disinterested appraiser, and said appraisers so selected should within 15 days select an umpire. In case the appraisers were unable to agree upon an umpire then application could be made to a judge of a court of record in the county for the appointment of such umpire.

The declaration further avers that following the loss the. parties were unable to agree as to the amount and entered into an agreement for the selection of appraisers and an umpire, and to abide by the award of any two thereof; that said appraisers were so selected, and negotiations opened to select an umpire, but being unable to agree thereof within 15 days, as provided by the policy, the plaintiff made application to the city court of Alton for the appointment of an umpire; that said court appointed one Robert Davis, as said umpire, but that the appraiser selected by defendant refused to participate with plaintiffs’ appraiser and the umpire so selected; whereupon plaintiffs’ appraiser and the umpire made an award of $5,286.

The declaration then avers that immediately thereafter defendants filed a bill of complaint in equity in the Federal district court to enjoin plaintiffs from suing upon said award and from taking any steps in connection with the enforcement thereof or of the policy of insurance, and further prayed that the policy be declared void for fraud.

It next alleged that after a hearing on the merits before the master in chancery, it was found that the appointment of the umpire by the city court of Alton was a judicial act and defendant was entitled to notice of plaintiffs’ application thereof, and that consequently the appointment of the umpire without notice was void and the award made was set aside and plaintiffs enjoined from attempting to enforce the same; that the Federal district court declined to declare the policy void, and the master in chancery subsequently found that it was in full force and effect, and that plaintiffs were not guilty of such fraud as to vitiate the policy.

It is then alleged that after the entry of the decree in the Federal district court, plaintiffs advised defendant of their selection of a new and disinterested appraiser, but received no reply thereto; that subsequently they advised defendant again of their selection of a new and disinterested appraiser, but the defendant declined to participate in any appraisement. Damage was claimed in the amount of $2,999.

To the declaration of plaintiffs, defendant filed a plea of the general issue and various special pleas, of which only pleas 31, 32 and 33 are involved in this appeal. Each of these pleas sets forth the policy provision as to appraisal and the provision prohibiting suit unless the assured had complied with all the policy requirements. The pleas alleged that it was determined by an action brought on May 15, 1928, by defendant against plaintiffs, in the United States District Court; that following the alleged loss defendant requested an appraisal, but due to the acts and conduct of plaintiffs the appraisal failed and was rendered impossible; wherefore this action was not sustainable.

The case was submitted to the trial court upon three exhibits for the defendant, its bill of complaint filed in the district court, report and findings of the special master of said court and the order of the district court entered February 20, 1932, and the decree entered March 23, 1932.

In contending that the court erred in finding the issues in favor of defendant, plaintiffs argue that the appraisement did not fail except through the refusal of defendant to submit the issues to appraisement; that the chancellor in the Federal court never did formally approve the report of the master, which report found that plaintiffs’ appraiser was not a disinterested person, but merely overruled the exceptions of the parties filed thereto; that the decree merely found that the award was void for want of service upon defendant in applying to the judge of the city court of Alton for the appointment of the umpire; and because thereafter plaintiffs submitted the name of a new appraiser to defendant with the request that an appraisement be had and defendant after a second request declined to select an appraiser plaintiffs had complied with all requisite conditions precedent, and was entitled to sue upon the policy. We are not constrained so to hold.

The law is well settled in Illinois that where a fact material to the determination of a cause has been adjudicated in a former suit before a court of competent jurisdiction and the same question is again at issue between the parties, its adjudication in the first case will be conclusive. Hanna v. Read, 102 Ill. 596; In re Estate of Stahl, 227 Ill. 529; People ex rel. Carr v. Psi Upsilon Fraternity, 324 Ill. 540; Healea v. Verne, 343 Ill. 325; Little v. Blue Goose Motor Coach Co., 346 Ill. 266.

Regardless of whether the decree of the Federal court could be construed as finding that plaintiffs’ appraiser was not disinterested, there is sufficient finding in that decree that the appraisement failed because of the fault of plaintiffs. The decree recites: “. . . that the award so found and return by said Rubenstein and said Davis purporting to act as such appraiser and such umpire, respectively, and purporting to appraise and fix the sound value of said property in the sum of five thousand two hundred fifty-eight dollars ($5,258.00) and the loss and damage sustained by said Reilley Brothers thereto in the sum of five thousand and two hundred fifty-six dollars ($5,256.00) was illegally and unlawfully procured and the same is illegal and is hereby set aside and declared null and void and of no force and effect as not having been made in compliance with the terms, conditions and provisions of said insurance contract with respect to the appointment of appraisers and selection of an umpire and the ascertainment of such loss and damage.”

The language of the decree that the award “was illegally and unlawfully procured” was sufficient basis for the trial court to hold that the first appraisal had failed through the fault of the plaintiffs, and it so having failed through their fault, defendant did not have to submit to a second appraisal. Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9; Hanover Fire Ins. Co. v. Drake, 170 Va. 257, 196 S. E. 664; Norwich Union Fire Ins. Society v. Cohn, 68 F. (2d) 42 (C. C. A. 10th), cert, denied 291 U. S. 665, 78 L. Ed. 1056, 54 Sup. Ct. 440; Aetna Ins. Co. v. Hefferlin, 260 Fed. 695 (C. C. A. 9th). In Niagara Fire Ins. Co. v. Bishop, supra, the Supreme Court said, “It was said, in Davenport v. L. I. Ins. Co., 10 Daly 535 that, upon the failure of the appraisers to agree upon an umpire, it is the duty of the insured at least to propose to the company the selection of new appraisers. We are unable to subscribe to this doctrine, so far as the policy, upon which the present suit has been brought, is concerned. The contract here only requires the parties to choose appraisers once, and not twice.”

We do not think it was the duty of defendant in the instant case to submit to a second appraisement of the loss. Having once, in good faith undertaken to have an estimate of the amount of the loss made by appraisers appointed pursuant to the terms of the policy and the appraisement having been defective and invalid, through having been illegally and unlawfully procured, defendant was not obliged to join in an attempt to have another appraisement. The policy required it to perform its duty in that regard under the . condition, in the policy only once.

In addition thereto the request for the second appraisal was made four years and eleven months after the loss and more than eight months after the decree of the Federal court. Surely after the lapse of so long a period of time, the property, which was the subject matter of the loss, would be in such condition that an appraisal would be an idle ceremony. Neither party can be required to await indefinitely the pleasure of the other in the matter of demanding such appraisement. It is well established that the request for an appraisement must be made within a reasonable time. Langsner v. German Alliance Ins. Co., 67 Misc. Rep. 411, 123 N. Y. S. 144; Morley v. Liverpool & London & Globe Ins. Co., 85 Mich. 210, 48 N. W. 502; Dun v. Germainia Ins. Co., 8 Ohio N. P. 612, affirmed without decision 52 Ohio St. 639, 44 N. E. 1139; 29 Am. Jur., Ins., sec. 1245, p. 930; Chainless Cycle Mfg. Co. v. Security Ins. Co., 169 N. Y. 304.

The policy sued upon, provided: “No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements. . . .” The record shows that the plaintiffs had not complied with all the requirements of the policy, and we find no error in the action of the lower court in entering judgment in favor of defendant, and in bar of action against plaintiffs. The judgment of the trial court should and will be affirmed.

Affirmed.


text:
    Morris Goldfarb and Joseph Goldfarb, Trading as Worth’s Hollywood, Appellees, v. Maryland Casualty Company, Appellant.
    Appeal by defendant from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding.
    Heard in this court at the May term, 1941.
    Opinion filed October 27, 1941.

      Pope & Driemeyer, of East St. Louis, for appellant.
    Saul E. Cohn, of East St. Louis, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of the city court of the city of East St. Louis, in the sum of $580.80, against the Maryland Casualty Company, an insurance corporation, appellant (hereinafter designated as the defendant) and in favor of Morris Goldfarb and Joseph Goldfarb, doing business as Worth’s Hollywood, appellees (hereinafter designated as plaintiffs) in a suit brought upon a water damage insurance policy, to recover damages for a loss alleged to have been sustained by plaintiffs. The case was tried before the court without a jury.

The risk insured against, as provided in the policy, and alleged in the complaint, covered, . . . direct loss and damage caused solely by . . . rain . . . admitted directly to the interior of the building through . . . defective doors . . . except as herein provided . . . . Complaint further stated that on June 11, 1940 while the policy was in force, certain goods belonging to plaintiffs were damaged by rain water to the extent of $1,000; that plaintiffs had complied with all of the provisions of the policy, and that defendant had refused to pay for the damage.

Defendant answered, admitting the issuance and existence of the policy, and the quoted provision, but denying the remaining allegations of the complaint. The answer incorporated a copy of the policy and pleaded specifically the following provisions, “This company shall not be liable for loss or damage caused directly or indirectly, (a) by seepage, leakage or influx of water through building walls, foundations, lowest basement floors, sidewalks or sidewalk lights; or (b) by floods, inundation, backing up of sewers or drains, or the influx of tide, rising or surface waters; . . . , or (g) by neglect of the insured to use all reasonable means to save and preserve the property at and after a ‘Water Damage.’ Wherever in this policy the term ‘Water Damage’ occurs, it shall be held to mean the accidental discharge, leakage or overflow of water, steam, rain or snow from systems, tanks, appliances and parts of buildings, insured against as sources of loss, resulting in loss or damage to property described herein, whether the ‘Water Damage’ originates in the portion of the building occupied by the insured or not.”

The first paragraph of the above appears in the policy under the head of “Hazards not covered.” The answer alleged that the loss complained of resulted from causes specifically excluded under the quoted terms of the policy.

Plaintiffs operated a clothing store in East St. Louis. In addition to this store on the ground floor, they occupied the basement beneath it, and the adjoining basement. In this basement they had a quantity of merchandise, some of which was stored and some on display. There were no windows in the basement. One stairway led up to the store on the ground floor, and there was a door opening toward the alley in the rear. This door on June 11, 1940 had a crack of about one inch between the bottom of the door and the threshold. The store above this basement room extended some distance out beyond the foundation wall, so that the door would be sheltered from any rain. There is some evidence, however, to the effect that there was an open space, between the two buildings in the back, through a fire escape, where rain might fall more directly.

On June 11, 1940, there was a terrific rainstorm in East St. Louis, lasting about twenty-five minutes. The witnesses for the plaintiff were in this basement at the time and stated that the “water gushed in like a waterfall.” It was at this time, that certain goods and merchandise of plaintiffs were damaged by water. The theory of the plaintiffs is that the rain coming between the two buildings, and through the fire escape, fell directly before and through the defective door of plaintiffs’ premises, and thus the damage resulted. The contention of defendant is that rain was not admitted directly to the interior of the building through the defective door and that damage was caused by what they designate as surface water, which was an excepted risk under the policy.

There is no evidence that there was any water lying on the ground, in the areaway back of the defective door. It is difficult to say where the line of demarcation lies between rain and surface water, that is, when rain ceases to be such and becomes surface water. Where certain risks are excepted, the burden is upon the insurance 'company to show that the loss was within the exceptions. Jordan v. Iowa Mutual Tornado Ins. Co., 151 Iowa 73, 130 N. W. 177; Fidelity & Casualty Co. v. Sittig, 181 Ill. 111, 54 N. E. 903.

We are of the opinion that the question as to whether the damage was caused by rain or by surface water was a question of fact to be determined by the judge, sitting as a trier of fact, in the absence of a jury. In an action on an accident insurance policy, the question as to whether insured died from carbon monoxide gas poisoning or from a combination of the gas poisoning with heart disease, was held under conflicting evidence to be a question for the jury. Cantrall v. Great American Casualty Co., 256 Ill. App. 47. Where there was both a fire and an explosion, the question of which preceded was held to be a question of fact for the jury. German American Ins. Co. v. Hyman, 42 Colo. 156, 94 Pac. 27. Whether a fire in the insured building caused the explosion has been held to be a question of fact for the jury. New Hampshire Fire Ins. Co. v. Rupard, 187 Ky. 671, 220 S. W. 538.

Defendant contends that there is no liability and that the court erred in rendering judgment for the plaintiffs, because there was no evidence that any rain was “admitted directly” through the crack under the door. The witness, Ruth Bruner, testified for plaintiffs that the water gushed in like a waterfall, and filled the floor with water, that the water was coming in from the rain. Grace O. Mangum, on behalf of plaintiffs testified that there was a cloudburst, and that water came in from the rear door, through an opening between the door and the threshold. Joseph Goldfarb, one of the owners, testified that there was an open space in the area in the back, because of the ladder fire escape of about eight or ten inches and that if the water came down there, it would drop to the ground and run in the door.

The only evidence offered by'defendant, in addition to certain photographs admitted in evidence, was that of an adjuster, who examined the basement four days after the.rainstorm. The word “direct” as used in the insurance policy in the instant case, means merely “immediate” or “proximate” as distinguished from “remote.” Western Assur. Co. v. Hann, 201 Ala. 376, 78 So. 232. So that the question as to whether any rain was “admitted directly” was, in the final analysis, a question of proximate cause, and a question of fact for the court to determine. The finding of the trial court on the controverted facts is entitled to the same weight as the verdict of a jury. Moore v. David J. Molloy Co., 222 Ill. App. 295. The judgment of that court, which saw the witnesses and heard them testify is conclusive on all questions of fact, if not manifestly against the weight of the evidence. Paterson v. Whitney, 67 Ill. App. 290; Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180, 27 N. E. (2d) 1012. We do not believe that the finding of the court in this case was contrary to the manifest weight of the evidence. We find no reversible error in the matter of the amount of damages nor of the manner of ascertaining same.

For the reasons above set forth the judgment of the trial court will be affirmed.

Affirmed.