text:
    E. T. Guthrie, Receiver of the First State Bank of Mattoon, Appellant, v. State Trust & Savings Bank of Mattoon et al., Appellees.
    Gen. No. 8,355.

      Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    Raymond G. Real and A. C. & Ben F. Anderson, for appellant.
    Bryan H. Tivnen, for appellees; Thomas R. Figenbaum and Carus S. Icenogle, of counsel. James Vause, Jr., Carl D. Kiger, Clarence W. Hughes and C. H. Douglas, for certain appellees; J. I. Dilsaver, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

E. T. Guthrie, receiver of the First State Bank of Mattoon, Illinois, appellant, filed his bill in the circuit court of Coles county against the State Trust &' Savings Bank of Mattoon and the officers and stockholders thereof to require an assessment on the stockholders of the defendant bank for the purpose of paying an indebtedness alleged to be due the complainant as such receiver, and upon a hearing the circuit court dismissed the bill for want of equity.

The bill of complaint is founded upon the following contract:

“This agreement, made and entered into this 21st day of January, 1924, by and between the First State Bank of Mattoon, an Illinois corporation, of Mattoon, Illinois, party of the first part, and the State Trust and Savings Bank of Mattoon, Illinois, an Illinois corporation, party of the second part, Witnesseth That:
“1. Whereas, second party is in financial difficulty, and is desirous of liquidating its assets and paying its creditors in full, and,
“2. Whereas, first party is desirous of starting a new bank in the building formerly owned and occupied by second party and of .taking over the assets and business of second party, and assuming the liabilities thereof. Therefore,
“3. It is mutually agreed by and between the parties hereto, in consideration of the mutual promises and agreements herein made, and of the covenants to be performed on the part of each party hereto as hereafter set forth:
“4. That second party agrees to and does hereby sell, assign, set over and convey to party of the first part, all of its assets including* personal, real, chattel, and mixed property, cash, bonds, credits, bills receivable, choses in action, books, papers, etc., of every kind and character whatsoever and wherever situate, to have and to hold as the absolute property of first party forever, for the uses and purposes hereinafter set forth, except the following assets which are regarded as doubtful, to-wit:
(Here follows a complete list of all the assets of the State Trust & Savings Bank known as the ‘non-accepted assets’.)
“5. That as to the foregoing list of assets, second party hereby assigns, transfers and conveys the same to first party for the purpose of collection, liquidation and application upon the liabilities of second party first party to have and to hold the same as its absolute property forever in trust, however, for the purpose of collection, liquidation and application upon the liabilities of second party and for that purpose, second party hereby authorizes first party, together with committee of second party consisting of Fred A. Kinzel, W. N. McKamy, W. H. Simmons and W. Gr. Sawin, to proceed to collect, renew, release, sue for, in the name, place and stead of second party for any and all of said assets.
“6. By the terms of this contract, the first party has unconditionally taken over all assets of the second party, except those listed in Paragraph 4, and hereby agrees, as far as said assets taken over unconditionally, to look absolutely to said assets, and hereby releases the party of the second part, its stockholders, directors and officers from any and all liability as to said assets unconditionally taken over. The liabilities assumed by the party of the first part amount to $930,189.99, as shown by Exhibit No. One attached hereto. The assets accepted unconditionally amount to $728,614.92 as shown by Exhibit Two attached hereto. The difference is $201,575.07. The party of the second part is to cause W. N. McKamy, H. W. Clark, W. D. Jones, Fred A. Kinzel, F. T. Moloney, S. W. Phillips, James M. Reed, W. Gr. Sawin, H. F. Pressler, W. H. Simmons and Robert T. Holmes to execute a bond which is to run for the term of two (2) years, absolutely guaranteeing and protecting the party of the first part against loss as to this said sum of $201,-575.07. The Fifty Thousand Dollars ($50,000.00) paid to the party of the second part by the party of the first part in the manner hereinafter designated for the building of the party of the second part, is first to be applied in reduction of the indebtedness secured by this bond. Second, all sums realized from the collection of said doubtful assets listed in said Paragraph 4 are to be applied in reducing said indebtedness secured by said bond. Third, if said sum of Fifty Thousand Dollars ($50,000.00), and the amount collected on said doubtful assets within two (2) years from date are not sufficient to entirely make up said sum of $201,-575.07, then the party of the second part is to collect the statutory assessment against its stockholders to make up this deficiency. Fourth, if the moneys derived from the first, second and third clauses of this, paragraph are not sufficient to pay off said sum of $201,575.07, then the said persons signing said bond are to make up said deficiency.
“7. Second party further agrees to sell and does hereby sell, transfer and agree to convey by good and sufficient warranty deed with abstract showing merchantable title, its building at the corner of Seventeenth Street and Broadway, Mattoon, Illinois, where it has for some time conducted its banking business for the sum of Fifty Thousand Dollars ($50,000.00), the same to be paid in three (3) equal installments, one-third within six (6) months from this date, one-third within twelve (12) months from this date, one-third within eighteen (18) months from this date, said deferred payments to bear interest at the rate of four (4) per cent per annum from this date, same payable semi-annually; second party, however, to make and deliver the deed to said property to first party upon the signing of this contract; said three (3) payments aforesaid to be made by placing the respective sums to the credit of second party in the bank of the first party, to be applied on liabilities of second party as herein above set forth. It is further understood that the foregoing sum of Fifty Thousand Dollars ($50,-000.00) not only is consideration for the purchase of the said bank building and the property upon which it stands, but likewise includes all the furniture, fixtures and equipment located in said bank building.
“8. Second party further agrees to and does hereby name and appoint first party, in cooperation with said committee of second party named in Paragraph Five, as its duly authorized agent and attorney-in-fact, to endorse, assign, sell, convey, collect, renew, sue for, compromise, compound and do any and all things that in the judgment of the first party and said committee of second party may be deemed necessary or expedient in order to collect and realize on all the assets listed in Paragraph 4 turned over to them by these presents and in liquidating and paying the liabilities of second party, hereby authorizing first party, in cooperation with said committee, in its name, place and stead to do any and all things that in the judgment of said first party and said committee may be deemed best for the best interests of second party.
‘ ‘ 9. Second party further agrees to pay any and all taxes, charges, assessments, either special, general, State, Federal, corporation or income, or any other charges of any kind or character whatsoever, now due on all or any of the assets hereby turned over to first party. All deferred installments of special assessments payable after this date and especially the Broadway Avenue Pavement shall be paid by first party.
“10. Second party further agrees to pay all expenses necessarily incurred by first party in making the transfer of the property and assets herein conveyed of every kind and character whatsoever, and especially abstract fees, recording fees, protest fees and insurance pro rata, which may have been incurred in and about the financial difficulties or examination of the assets of second party by the State, and in the transfer of the same.
“11. It is also mutually agreed by and between the parties hereto that any and all accrued interest upon any of the assets hereby unconditionally accepted and delivered to first party up to this date, when collected, shall belong to and be credited to the account of the first party, and that from and including this date, hereafter, the interest upon all of said assets, except those listed in Paragraph 4 hereof, shall belong to and be retained by first party; and as to the assets listed in Paragraph 4, the accrued and accruing interest upon the same shall be the property of second party.
“12. Second party further agrees that its officers and directors shall, when requested by first party, assist first party in any way they possibly can to collect the assets of second party, and to apply the same upon the liabilities of second party, free of expense to first party, including their attendance in court as witnesses, if need be, and that they will sign and execute any and all releases, papers, deeds or mortgages, assignments or other documents that may be necessary in the judgment of first party and said committee of second party, to assist first party in collecting the assets of second party and distributing the same among its creditors; and that the Board of Directors of second party has heretofore appointed the committee heretofore referred to, consisting of Fred A. Kinzel, W. N. McKamy, and W. H. Simmons and W. G-. Sawin, who are hereby specially authorized to render any assistance that may be requested by first party, without charge therefor.
“13. First party further agrees that first party shall pay the depositors of party of second part in full according to law. Party of the first part agrees also to pay all other liabilities of the party of the second part, except those listed in Paragraph 10 of this contract, and any liability due to the First State Bank of Greenup, Illinois; the Neoga National Bank of Neoga, Illinois; or any liability arising out of the disposition of the sum of $2,446.90 of the funds of one S. W. Eamert credited to the account of the Neoga National Bank by second party.
“14. Second party further agrees that first party shall not be liable to any person or persons or assume any liability to any person, persons or corporations, for any assets, bonds, notes, mortgages or any other thing of value left for safe-keeping with second party while it was engaged in the banking business, that has not been turned over and delivered to first party by second party at this time.
“15. Second party does, by these presents, hereby set over, assign and transfer to first party, the lease which it now holds upon the Thode Building next to and adjoining the building now owned by second party on the west and south, and first party assumes and agrees to perform the covenants and conditions thereof in manner and form as therein set forth with the exceptions that the party of first part shall not be liable for the construction of any building upon said Thode property, but which shall give the right to first party to use said Thode Building and the right of repair and alteration of the inside thereof as it may see fit, during the unexpired term of said lease.
“16. Parties agree that at expiration date of bond herein provided for, should parties to this contract deem it necessary or circumstances then existing reasonably warrant it, a new bond may be given in lieu of present bond for a further period of two years.
“17. Parties further agree that if, after all liabilities secured by bond, and all liabilities existing by Paragraph 10 of this contract, are paid, any surplus on hand derived from doubtful assets or otherwise, shall be ratably repaid to the bondsmen of second party according to the amount they paid to first party upon said bond, until they are fully repaid. Any surplus then remaining shall be distributed to the stockholders of second party in accordance with the number of shares of stock owned by each.
“18. Second party further agrees that if first party should be compelled, or in its judgment, together with said committee of second party, deem it expedient to advance any funds to pay any of the liabilities of second party, including the expenses herein provided for, that first party shall be fully repaid out of the assets of second party hereby taken over when realized upon, or by the bondsmen of second party, with five and one-half per cent interest thereon from the date of said advancement.
“19. First party further agrees to and does hereby take over all the assets of second party of every kind, character and description, real, personal and mixed, except those listed herein, wherever situate, and hereby agrees to take the same in the manner provided by Paragraph 6 hereof at their face value, and accrued interest, and to give second party credit for the same at once, and to apply the same on the liabilities of second party, and as to the assets listed in Paragraph 4 herein, first party agrees that as the same are collected from time to time, to credit the account of second party to be kept by first party in its bank with second party, and to apply all of said assets as collected from time to time upon the liabilities of second party as in such manner as it may, in the judgment of its officers and agents and said committee of second party, determine.
“20. First party hereby agrees that the services of said first party and its officers and employees in carrying out the provisions of this contract, shall be rendered without charge to second party.
“In witness whereof, the parties to this contract have this, the 21st day of January, 1924, executed said contract in duplicate, each party signing by its duly authorized officers.”

To the contract are attached two exhibits showing the liabilities and the assets of the State Trust & Savings Bank respectively. Among the assets are listed the bank building, furniture and fixtures therein at the sum of $50,000.

In the bill the bond provided for in the contract is set out. The condition of the bond is as follows:

‘1 The condition of this obligation is such, that whereas, the State Trust and Savings Bank of Mattoon, Illinois, has this day entered into a contract and undertaking with the said First State Bank of Mattoon, Illinois, wherein and whereby the said First State Bank of Mattoon, Illinois, has taken certain specified assets and has assumed all the liabilities of the State Trust and Savings Bank aforesaid; and
“Whereas, there is a difference of Two Hundred Thousand Dollars ($200,000.00) between the accepted assets and the liabilities of the said State Trust and Savings Bank; and
“Whereas, by Paragraph Six (6) of said contract it was provided that the Fifty Thousand Dollars ($50,-000.00) paid to the party of the second part by the party of the first part for the building of the party of the second part was to be first applied in the reduction of said liabilities, that all sums realized within two (2) years from this date, from the collection of said doubtful assets listed in said Paragraph Four (4) were secondly to be applied in reducing said liabilities so secured by said bond, and that next, any sums realized by the party of the second part within two (2) years from this date, from the statutory liability of the stockholders should be used to pay any further deficiency in said sum of Two Hundred Thousand Dollars ($200,000.00), and that if the money derived from the sale of said building, the collection of said doubtful assets and the stockholders’ liability are not sufficient to pay off said sum of Two Hundred Thousand Dollars ($200,000.00) that then the persons signing this bond were to make up said deficiency.
“Now, if the said difference of Two Hundred Thousand Dollars ($200,000.00) between said assets accepted and said liabilities assumed shall be paid in the manner provided for by said contract, a copy of which is hereto attached and made a part hereof, and the said First State Bank shall be held free from all loss and damage on account of said deficiency in said sum of Two Hundred Thousand Dollars ($200,000.00), then and in that case this obligation shall be void; otherwise to remain in full force and effect.
W. N. McKamy (Seal)
H. W. Clark (Seal)
William D. Jones (Seal)
Fred A. Kinzel (Seal)
Frank T. Moloney (Seal)
Samuel W. Phillips (Seal)
James M. Reed (Seal)
W. Gk Sawin (Seal)
H. F. Pressler (Seal)
Wm. H. Simmons (Seal)
Robert T. Holmes (Seal)”

In the bill it is averred that upon the execution of the contract and bond the First State Bank took possession of all the accepted assets of the State Trust & Savings Bank and paid all the liabilities of the latter as contemplated by the contract and the liabilities so assumed and paid aggregated the sum of $930,189.99; that out of the nonaccepted assets the sum of $147,-230.59 was collected and applied upon the liabilities of the State Trust & Savings Bank and reduced the amount, “so owing from the State Trust & Savings Bank of Mattoon to the First State Bank of Mattoon from the original sum of Two Hundred One Thousand Five Hundred Seventy-five Dollars and Seven Cents ($201,575.07) to the sum of, to-wit: Fifty-four Thousand Three Hundred Forty-four Dollars and Forty-eight Cents ($54,344.48.) ” It is further averred that all the rejected or nonaccepted assets of the State Trust & Savings Bank which have any value have been collected; that there has been also collected from the stockholders of the State Trust & Savings Bank the further sum of $22,000, all of which sums so collected were applied upon the balance of said indebtedness due from the State Trust & Savings Bank to the First State Bank leaving the sum of $32,000 still due from the State Trust & Savings Bank to the First State Bank; that pursuant to the terms of the contract the First State Bank paid the debts of the State Trust & Savings Bank, and in so doing were not mere volunteers, but were entitled to all of the equitable rights of said creditors, in enforcing the constitutional and statutory rights of said creditors against the stockholders of the State Trust & Savings Bank; that the State Trust & Savings Bank notified all the stockholders of said bank that it would be necessary to levy an assessment of 50 per cent of the par value of the stock owned by each of said stockholders to pay the balance due the First State Bank and that in pursuance of said notice ■ a large number of said stockholders paid to the First State Bank an amount equivalent to 50 per cent of the par value of the stock owned by each of said stockholders and upon the payment of said sum by each of said stockholders the First State Bank issued to each, excepting, however, the stockholders of said bank who had signed the bond heretofore referred to, a release releasing said stockholders from any further liability to the First State Bank; that demand has been made for payment of the stockholders’ assessment upon all the stockholders of the State Trust & Savings Bank who have not paid any portion of the assessment and that many of said stockholders have failed and refused to pay the same to the First State Bank, “as a creditor of the State Trust & Savings Bank” any sum in discharge of their constitutional liability as such stockholders; that complainant has performed all the conditions of said contract and said bond; that after allowing all just credits, collections and set-offs paid to it and collected by it there is due it, “as a creditor,” including interest, the sum of, to-wit: $40,000; that the court may order an accounting for the purpose of ascertaining the balance due the complainant, “as a creditor,” of the State Trust & Savings Bank and that a decree may be entered against each and all of the stockholders of the latter bank except those who have paid an amount equivalent to 50 per cent of the par value of the stock owned by them, for the. balance found due upon said accounting, etc.

To this bill the defendants filed answers and cross-bills. The answers substantially set up three defenses to the bill, and the first is to the effect that the stockholders of the State Trust & Savings Bank never legally authorized the directors and officers of that bank to execute the contract in question. This contention we understand from the briefs and arguments of counsel has been practically abandoned. The second defense is to the effect that the contract is one of actual sale of the assets of the State Trust & Savings Bank to the First State Bank and the assumption of the latter of the debts of the former. The third defense is that under the terms of the contract if the same be construed not to be one of an actual sale yet the First State Bank has been fully paid and no amount remains due and owing to it from the State Trust & Savings Bank. Appellees, to sustain their contention that the contract is one of an absolute sale of the assets of the State Trust & Savings Bank to the First State Bank and of the assumption of the latter of the liabilities of the former and that there was no express undertaking by the former to pay any deficiency in the assets of the latter to pay the liabilities, rely upon the case of American Nat. Bank v. Holsen, 331 Ill. 622. In the case at bar as in the Holsen case there is no express provision that the State Trust & Savings Bank should pay any deficiency which might exist between the assets and the liabilities of the bank unless it can be implied from the sixth paragraph of the contract which provides that if the sum of $50,-000 and the amount collected on the doubtful assets within two years from date are not sufficient to entirely make up the sum of $201,575.07, then the State Trust & Savings Bank is to collect the statutory assessment against its stockholders to make up this deficiency. Paragraphs one and two of the contract express the intentions of the parties thereto, to wit: that the State Trust & Savings Bank is in financial difficulty and is desirous of liquidating its assets and paying its creditors in full and the First State Bank is desirous of starting a new bank in the building formerly owned and occupied by the State Trust & Savings Bank and of taking over the assets and business of the latter bank and assuming the liabilities thereof. In paragraph six it is provided: “The liabilities assumed by the party of the first part (First State Bank) amount to $930,189.99, as shown by Exhibit No. One attached hereto.” While the contract in the Holsen case is similar in many respects with the contract in this case yet there are several material differences. In the former case the contract contained a provision that the liquidator bank, “agrees to assume and does assume all of the liabilities of the State Bank, except its liabilities to its shareholders.” No such provision appears in the contract in this case. All the assets of the State Trust & Savings Bank were not taken over by the First State Bank, but certain assets which were regarded as doubtful, and called by the parties “non-accepted assets,” were specifically excluded but were assigned to the First State Bank in trust for the purpose of collection, liquidation and application upon the liabilities of the State Trust & Savings Bank. It also appeared in the Eolsen case that both banks involved therein considered the liquidating bank to be entirely solvent and that fact was taken into consideration by the court in construing the contract in that case. At a meeting of the stockholders of the State Trust & Savings Bank held on the 14th day of January, 1924, a resolution was passed authorizing the board of directors of said bank to enter into an agreement with the First State Bank “for the transferring and assigning to said bank of all the assets of the State Trust & Savings Bank including therein all its deposits of every nature, its building, lease, fixtures, etc., for the sum of $50,000, and, as a further consideration for said transfer and assignment, the First State Bank of Mattoon shall also assume and pay all the liabilities of the State Trust & Savings Bank, not, however, releasing the liability of the stockholders of the State Trust & Savings Bank, and that any and all assets which shall not be accepted by the First State Bank shall be held by said bank or some person designated by the directors of the State Trust & Savings Bank together with said $50,000 as security for the payment of all liabilities of the State Trust & Savings Bank and after the payment of all liabilities any remaining assets of said bank shall be distributed pro rata to its stockholders; it being understood that the First State Bank shall only accept such assets as it deems good, and provided further, that the First State Bank shall assist in and act as agent for the State Trust & Savings Bank in the collection of the assets of the latter bank which may not be taken over by the First State Bank, said services to be rendered free of charge to the State Trust & Savings Bank.” The resolution further provided that the board of directors be empowered to enter into any contract for the purpose of carrying out in substance the aforementioned things and to do any and all other things as they may deem necessary in the interest of the stockholders for transferring and assigning the assets of the bank to the First State Bank. At a meeting of the directors of the First State Bank held January 21, 1924, a resolution was passed which provided that whereas the First State Bank is desirous of taking aver certain of the assets and assuming the liabilities of the State Trust & Savings Bank and whereas a committee appointed by the board has examined all the assets and liabilities of the State Trust & Savings Bank and in conjunction with a committee of the board of the latter bank has agreed upon a plan whereby said bank can take over certain of the assets and assume the liabilities of the State Trust & Savings Bank, excepting liabilities of stockholders, and has prepared a contract and bond which has been executed by both banks and submitted to said bank for its approval; that said contract and bond are approved and E. T. Guthrie, president and J. P. Crane as secretary of the First State Bank are authorized to execute said contract in behalf of said bank and take over the assets and assume the liabilities of the State Trust and Savings Bank, etc. The words, “excepting liabilities of stockholders” used in both resolutions refer to the liabilities of the stockholders of the State Trust & Savings Bank to its creditors arising by virtue of section 6 of article 11 of the Constitution which provides that every stockholder in a banking corporation shall be individually responsible to its creditors over and above the amount of stock by bim or her held to an amount equal to his or her respective share so held for all liabilities accruing while he or she remains such stockholder. There was no such liability at common law and the appellant cannot obtain the relief prayed unless the contract imposes upon him the relation of creditor in so far as there may be a deficiency shown in the collection of the nonaccepted assets. It is argued by counsel for appellant, although not claimed in the bill itself, that the First State Bank is subrogated to all the rights of the creditors of the State Trust & Savings Bank. Legal subrogation is confined to the relation of principal and surety and to cases where a person is compelled to remove a title superior to that held by him in order to protect his own, and to cases of insurers. Conventional subrogation results from an express agreement with the debtor by which one advances money to pay a claim for the security of which there exists a lien, by which agreement he is to have an equal lien with that paid off. American Nat. Bank v. Holsen, supra. There can therefore be no application of the doctrine of subrogation in this case as the contract contains no such agreement. The First State Bank in order to sustain the bill must be a creditor and that relation must be established by the contract in question. Considering all the provisions of this contract and the construction placed thereon by the parties themselves, we are of the opinion that such a relationship did exist in so far as the nonaccepted assets áre involved, and that appellant would have a right to the relief prayed for in the bill if the proofs showed that snch a deficiency did in fact exist.

The proofs, however, conclusively show that no such deficiency did exist under the terms of the contract. The master in chancery and the chancellor each so found and their findings are clearly supported by the evidence. Paragraph 6 of the contract provides that the $50,000, the price agreed upon to be paid by the First State Bank for the bank building and fixtures therein, shall be first applied in reduction of the indebtedness secured by the bond; that there shall then be applied upon such indebtedness the amount collected from the doubtful assets listed in paragraph 4; that if there then shall still be a deficiency the State Trust & Savings Bank shall make the statutory assessment against its stockholders to make up this deficiency. It is urged by counsel for appellant that by the terms of this contract the State Trust & Savings Bank shall give credit for the $50,000 twice because this amount was listed among the accepted assets and goes to make up the total of $728,614.92 which was unconditionally accepted and that therefore this $50,000 should be excluded in determining the amount of the deficiency if any. This contention cannot be sustained. The contract must speak for itself. It was not hastily drawn but was executed after a series of discussions and consultations in regard to the terms of the contract by the parties and their counsel. More than one draft of the contract were drawn and rejected before the final contract was executed. Bach bank had the assistance of able counsel. The assets and liabilities of the State Trust & Savings Bank were fully examined and both parties were conversant with the actual conditions thereof. The bill does not pray for any reformation of the contract nor is it suggested therein that any error was committed in its preparation or any mistake of fact embodied in its terms. In the Holsen case, supra, the court held in regard to the contract there in question: “The parties have thus reduced their agreement to writing*, the written agreement is presumed to contain all the terms of the contract and no promise can be implied contrary to the written terms.” It is not possible from the wording* of section 6 that the provisions therein expressed could be other than what was intended by both parties. The indemnifying bond is conditioned in exactly the same words. The court cannot read into this contract provisions not contained therein nor amend it so as to make its terms more favorable to appellant than the plain language therein indicates. The terms in this paragraph are very plainly expressed and are reiterated in the indemnifying* bond. The proof conclusively shows that out of the nonaccepted assets there was collected the sum of $247,149.05. The stipulated amount of liabilities in the contract was $930,189.99. The stipulated amount of the assets conditionally accepted was $728,-614.92. The amount of the indebtedness remaining to be paid from the nonaccepted assets is stipulated at the sum of $201,575.07. It will thus be seen that there was actually collected out of the nonaccepted assets $45,-573.98 in excess of the stipulated deficiency. In order to overcome this amount counsel for appellant, ignoring the stipulated amount of liabilities, increased the same to $959,439.04 by adding thereto numerous other items concerning which no proof as to their correctness was made to the amount of $7,006.04 and then adding thereto $22,243.36 as interest on balances at 5 per cent. Counsel for appellant in regard to this item of interest admits that the contract does not provide for the payment of the same but contends that it is allowable under the law. ' The parties are bound by the terms of their contract and no such interest is allowable under this contract. Appellant then seeks to readjust the stipulated amount of the assets accepted unconditionally by deducting therefrom $6,-565.80 leaving a balance of accepted assets of $722,-049.12. These deductions are made for notes claimed not to have been received and for the auditor’s fee of $1,000 taken from the cash. Appellant then deducts the sum of $23,817.09, the amount collected from the stockholders by special assessment from the amount collected from the- nonaccepted assets. Appellant received this amount of money and should account for it. He then also deducts from the amount of uncollected assets $12,395.68 which he claims was interest on the rejected assets. These deductions reduce the amount of the nonaccepted assets to $210,936.28. From the latter amount he also claims a deduction of $19,-177.90 for increased loans and discounts. There is nothing in the contract which would authorize such a deduction. Among other deductions is one for $16,-870.29 charged to expenses for collecting the nonac-r cepted assets. The expenses for which appellant had a right to take credit for are specifically set out in paragraphs 9 and 10. Paragraph 20 of the contract provides that the First State Bank agrees that the services of it and its officers and employees in carrying out the provisions of the contract shall be rendered without charge to the State Trust & Savings Bank. Appellant seeks to charge appellees among other things attorney’s fees amounting to nearly $4,500 and clerical hire amounting to $3,000 and numerous other expenses unnecessary to mention, the whole totaling $16,870.29. It is unnecessary to go more into detail of the accounting and it would be impossible in the limits of an opinion to discuss all the items in controversy. Many of the items consisted simply of written statements and ledger sheets without any proof in regard to the items themselves. As to the nonaccepted assets the First State Bank was a trustee and the burden was on it to make affirmative proof in seeking credit for disbursements made from the trust funds and to show by affirmative proof that such disbursements were proper. Wylie v. Bushnell, 277 Ill. 484; Lehman v. Rothbarth, 159 Ill. 270. We have examined the account as stated to the best of our ability and are firmly convinced that no deficiency exists for which the stockholders can be made liable.

For the reasons stated the decree of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    Arthur Lamb et al., Appellees, v. Fidelity & Deposit Company of Maryland, Appellant.

      Gen. No. 8,365.

      Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    McMillen, McMillen & Garman, for appellants.
    McDavid, Monroe & Mann, W. T. Coleman and Herrick & Herrick, for certain appellees. Fred Ball and George Smith, for appellee Eliza B. Hughes.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

At the general election held in November, 1922, B. F. Coffman was elected county treasurer of Macon county and was required as a qualification for that office to execute an official bond as such treasurer in the sum of $400,000 and also a bond as county collector in the sum of $5,000,000. The Fidelity and Deposit Company of Maryland, appellant, executed these bonds as surety. The premium on the bonds to be paid appellant for its execution of the same as surety amounted to $6,000. Appellant as a further consideration for executing said bonds as such surety demanded that Coffman should procure from any bank in which he deposited funds as county treasurer or county collector an indemnifying bond conditioned that such bank should promptly pay to said Coffman, or his order, upon demand and presentation of proper and valid checks therefor, in the regular and ordinary course of business, all moneys which had been, or should thereafter be deposited with, delivered to, or placed in charge of said bank by or on behalf of said Coffman; and should keep and hold harmless said Coffman as well as appellant of and from all loss or damages which might arise or accrue to said Coffman or appellant by reason of the deposit or delivery of said funds, or any part thereof as aforesaid, etc.

One of the banks in which Coffman as county treasurer and collector deposited moneys of the county was the Farmers State Bank and Trust Company of Decatur, 111. This bank executed an indemnifying bond conditioned as above set forth together with ten personal sureties, among whom was Arthur Lamb, appellee. The Farmers State Bank and Trust Company failed on September 22, 1925, at which time Coffman had on deposit in the bank moneys of the county in the sum of $170,957.04. Appellant paid into the county treasury the amount of this deficiency and then instituted eight suits at law against the sureties severally on the indemnifying bond above mentioned. One of these suits was against Arthur Lamb, appellee, who filed numerous pleas therein. Before any of these suits at law came to trial Lamb filed a bill in chancery making appellant and eight of the sureties on the indemnifying bond and the executrices of the last wills and testaments of two of the sureties who had died, as parties defendant. The prayer of the bill is that the indemnifying bond be ordered surrendered up, canceled and held for naught and for a permanent injunction restraining the suits at law on the ground that the bond was a violation of the laws and constitution of the State of Illinois and against public policy. Appellant answered the bill and also filed a cross-bill praying for an accounting. On the hearing the chancellor entered a decree granting the relief prayed for in the original bill and dismissed the cross-bill for want of equity, from which decree appellant prosecutes this appeal.

In the original bill it is alleged in substance that after the election, Coffman requested the board of supervisors of Macon county to designate the bank or banks into which he should deposit the public moneys and to pay out of the interest from such deposits the premium on his official bond; that the board refused to do this but approved the bond of Coffman with proviso that the county did not assume any part of the premium thereof; that prior to November 22, 1922, Coffman after failing to secure the consent of the board of supervisors to the prayer above set forth and before entering on the duties of his office entered into a secret agreement whereby he, in consideration of appellant acting as surety on his official bonds and enabling him to qualify for office, agreed to permit it to choose and name the banks into which the public funds of" his office should be deposited; that the premium of $6,000 charged by appellant for becoming surety on the bonds should be paid to it from moneys collected by it from the various banks into which it should cause the public funds to be deposited; that the agreement was further to the effect that appellant after becoming surety on the official bonds should make such arrangement as it cared to make with the banks in which it would direct the funds to be deposited; that instead of the depositories paying the money to Coffman, appellant was to collect from the banks the amount of its premium; that after Coffman had qualified and received all the public funds of his office from his predecessor, appellant under its agreement and arrangement with him, entered into negotiations with the Farmers State Bank and Trust Company of Decatur, and represented to the said bank that it had secured from said Coffman the right to select where the public funds of his office should be deposited and that it had arranged to become surety on Coffman’s bonds and to charge $6,000 as premium therefor and that the premium was to be paid by the banks in which it permitted and directed the public funds to be deposited, and that the sum so paid to it by the depository banks was to be used in payment of the premium charged on the official bonds of Coffman, and was to be an interest bonus or paid by the depository banks for the benefits received by them from the deposits of said funds; that as a further consideration for the deposit of said funds, it would require said bank to furnish an indemnity bond guaranteeing the prompt repayment to Coffman or his order in the regular and ordinary course of business, all moneys deposited by him with the said bank, said bond to keep and hold harmless Coffman as well as appellant from any loss or damage by reason of the deposit in the said bank of any funds by said Coffman; that after such representations had been made to said bank it attempted to execute said bond of indemnity by causing it to be executed in its name by its president and cashier, but that the attempted execution of said bond was ultra vires and void; that the sureties who signed said bond did so at the request of said bank and did not know of the arrangement between Coffman and appellant.

The bill further charges that the bond of Coffman as county treasurer was void for reason that the consideration was illegal; that the contract was against public policy of the State which prohibits a public officer from trafficking or bargaining on matters touching the affairs of his office, and that by reason of the invalidity of the county treasurer’s bond, the indemnifying bond executed by the bank was also void. It is further charged that said bank received savings deposits and that section 4 of the provision of the Criminal Code as to banks, Cahill’s St. ch. 38, ]] 41, prohibits savings banks from assuming or becoming liable for or guaranteeing bonds, notes or other evidences of indebtedness for the account of any persons, firm or corporation and that the execution of said indemnifying bond was in violation of said statnte and did impair the deposits and trust funds of said bank; that the arrangement between Coffman and appellant in regard to the method of paying the premium on the bond violated section 81 of the provisions of the Criminal Code as to embezzlement, Cahill’s St. ch. 38, 1Í193, which provides that if any public official shall use public funds by way of investment of loan for his own use he will be subject to fine and imprisonment; that Coffman by agreeing with the surety to permit the latter to select the depositories of the county’s moneys violated said statute and that the indemnifying bond having been a part'of the original transaction was therefore also void; that said transaction also violated section 3 of the “Corrupt Practices Act,” Cahill’s St. ch. 102, 3; that it also violated section 10, article 10 of the constitution which prohibited the acceptance by Coffman of any fee or allowance under and above his compensation as fixed by law.

It is further charged in the bill that these defenses could not be made in a suit at law and that eight separate suits are pending which will cause a multiplicity of trials and that the question raised in each is identical; that if appellant succeeds in one or more of the suits at law, suits for contribution will be necessary and that the same defendants as are in said suits at law are involved and that an accounting will be necessary, all of which matters could be fully tried and determined in one suit.

The contention of the complainant in the bill is that the alleged agreements made between Coffman, appellant, and the Farmers State Bank and Trust Company in regard to the execution of the bond of Coffman as county treasurer rendered it void and that the execution of the indemnifying bond of said bank was so connected with the execution of the county treasurer’s bond that it became part of the same transaction and was therefore also void. To sustain this contention counsel for appellee state in their brief: “It is urged by complainant that, had not the Farmers State Bank and Trust Company agreed to, and actually did, execute and deliver said indemnifying bond, and also pay the $3,000 demanded of it, the surety company would not have executed the official bond of the treasurer. This, we believe, will be admitted. Therefore, the giving of the indemnifying bond is actually a part, and a very important part, of the original undertaking.” The facts do not sustain this contention. The bond of Coffman as county treasurer was executed November 22, 1922, and was approved by the board of supervisors on December 14, 1922, while the indemnifying bond was not executed until December 20, 1922, nearly a month after the execution of the treasurer’s bond. Complainant’s case is based upon two transactions in regard to the execution of the bond of Coffman as county treasurer. One involved an alleged agreement made between appellant, Coffman and the Farmers State Bank and Trust Company of Decatur and the other a substantially same agreement made by appellant, Coffman and the Lincoln National Bank of Lincoln. Each of these banks gave an indemnifying bond and each of them paid one-half of the premium on the treasurer’s bond. Both transactions with these banks took place in the latter part of December, 1922, and subsequent to the execution of the county treasurer’s bond and its approval by the board of supervisors. The indemnifying bond of the Farmers State Bank and Trust Company involved in this case bears the corporate seal of said bank and is executed by J. R. Pogue, president, and F. E. Harrold, cashier, also by the personal sureties of Pogue, Harrold, White, Kaiser, Lamb (appellee), Hughes, Barber, Flint, Paisley and Harvell, each signature being under seal.

The evidence of the alleged agreement with the. Farmers State Bank and Trust Company rests solely upon the testimony of Pogue, president of said bank. Appellant’s agent who acted for it in the procurement of the bond for Coffman was William E. Hodnett. Pogue testified that he never had had any other business transactions with Hodnett before the one in question and did not know him until a week or two before the indemnifying bond was executed. He relates the transaction in substance as follows: “The conversation was on the morning of December 21, 1922 in the bank. Hodnett and Coffman came in together and we discussed Coffman’s bond. Hodnett seemed to be trying to figure out some way the bond could be secured. This conversation occurred in the private office of the bank. Coffman was there part of’ the time and Hodnett and I were there during all of the conversations. Hodnett said he was trying to fix a bond for Coffman and that he might finance part of it with the banks in Lincoln and that the Farmers State Bank and Trust Company would be the chief depository here and asked me under these conditions how much of a premium my bank would pay. I told him we could pay $3,000 of it. Coffman came back ■ later and we discussed how much of a deposit should go to the other banks. The Farmers State Bank and Trust Company was to be the chief depository but it was necessary to give the other banks some of the deposit.” This testimony is wholly inconsistent with the actual facts as the bond of Coffman as county treasurer had already been executed by him and also by appellant as surety and had been approved by the board of supervisors as heretofore shown. Upon being asked what the witness did immediately following this conversation between himself and Hodnett he testified: “I issued to Mr. Hodnett a draft for $3,000. ... I took William E. Hodnett’s note for $3,000 dated December 20, 1922. This note seems to have been dated the day before the transaction in regard to the draft I have testified about. I had no other transaction with William E. Hodnett in December, 1922 other than the note for which I gave him a draft. ... I think he made the remark that the public funds would make me that much interest by the time that note was due or about so. The $3,000 note was paid from the interest fund of the bank. Prior to the conversation with Hodnett, Coffman had deposited county treasury funds in my bank. The account was opened on December 15 "with a deposit of $67,276.19. ... At the close of business on December 19, 1922, the balance of the account of Coffman as county treasurer in the bank was $88,-298.75. I made no reply to Hodnett’s statement that some of the banks were going to contribute to the expense of Coffman’s bond when he first made the remark. Later in the same conversation I did say the bank would be willing to pay $3,000 toward that expense. The interest account was the record the bank kept of the collections of interest on notes and other papers belonging to the bank. We had receipts from the rental of the safety deposit boxes and we had interest receipts from bonds and also from exchange and we had miscellaneous accounts, different items. Every six months there would be a balance struck in these different accounts and the balance credited up to undivided profits. The interest accounts represented simply the interest that was received by the bank on the notes representing money loaned by the bank. The only items that were charged to the account were items representing interest actually earned and collected on the notes of borrowers from the bank. All interest collected on notes was credited to the interest account and charged against the interest account was the interest on money borrowed by the bank. I do not remember just when the credit was made from the interest account to the $3,000 note. The amount of it was deducted from the interest earnings of the bank on its notes receivable. I first saw or heard of the indemnity bond the latter part of December, 1922. Probably a week before it was executed. I kept it for four or five days or a week securing signatures of the sureties, and then delivered it to Coffman. All the sureties signed in my presence. The interest collected on county moneys was credited to the interest fund and then transferred to the payment of the note. When Hodnett first came to see me he made the statement that he was arranging for the bond of Coffman and stated lie had made arrangements with some of the banks for the payment of part of the premium. He did not say he had the right to signify the depositories of the funds deposited by Coffman. 1 assumed that only from the conversation. The only transaction I had with Hodnett was in reference to the bond. I let him have the money to pay the premium. He gave his note as security. I investigated and found he was responsible. There-was nothing said about crediting interest on the county money. The only credit that was made was when the note was paid. The only way there was any interest earned on this county money was by the loan of it to our borrowers and the only items credited to the interest account were items representing interest collected on notes for money loaned. I didn’t make any distinction of where the loans came from. County deposits were mingled with other deposits of the bank and out of the total deposits the bank loans were made and interest collected. There was no distinction between loans made from the deposit of the county funds and loans made from the deposit of any other customer. There was no separation by anyone in the bank as to the source of the loans. ’ ’

The contention of appellee that the bond given by Coffman as county treasurer was void is wholly without merit. The bond was given for the benefit of the county which was not a party to any of these transactions. It was a valid and binding obligation between the county, Coffman and appellant. It could not be voided by any agreement which might have been made by the principal and his surety with third parties no matter how fraudulent such agreement might have been. As between the county and the obligors on the bond it was a perfectly valid obligation.

The testimony of Pogue does not disclose that the execution of the indemnifying bond was made a part of the consideration for the agreement between Hod-nett, agent for appellant, and the bank. Coffman as county treasurer deposited the county funds in a number of different banks and required an identical indemnifying bond from each bank in which he made such deposits. The execution of the indemnifying bond involved in this case was after the execution of Coffman’s bond as county treasurer and after said bond had been approved by the board of supervisors. Coffman never received any interest from the bank personally. The interest received by the loaning of the funds of the county was mingled with the interest received from all other loans and all other receipts and profits of the bank and the $3,000 was paid by the bank from the general profits of the bank.

A county treasurer in counties having a population of less than 150,000 inhabitants may deposit moneys of the county in any bank and may or may not make an agreement with such depository bank that the latter shall pay interest on such funds so deposited with it. If he does make such an agreement, then the interest earned from such deposits pursuant thereto becomes the property of the county. If the evidence can be construed to show that Coffman indirectly received the benefit of the $3,000 as interest from the deposit of the county funds in the bank, then he would be liable to the county for that amount, and the county could sue upon the treasurer’s bond to recover the same. A fair construction of the testimony of Pogue leads to the conclusion that the bank was willing to pay to appellant $3,000 out of the general profits of the bank or its assets on the premium of the bond of Coffman for the privilege of becoming a depository of the county funds. Alleged fraud must be clearly proven. Pogue testified, “He (Hodnett) did not say he had the right to signify the depositories of the funds deposited by Coffman. I assumed that only from the conversation,” and also, “I let him have the money to pay the premium. He gave his note as security. I investigated and found he was responsible. There was nothing said about crediting interest on the county money.” In our opinion the proofs do not disclose a fraudulent collusion between appellant, Coffman and the bank to defraud the county of interest earned on the county funds.

The evidence in regard to the transaction with the Lincoln National Bank of Lincoln is substantially the same except that in that case the note was executed by Coffman instead of Hodnett but the money was paid to Hodnett for the benefit of appellant. All the testimony in regard to the alleged agreement made between appellant and the Lincoln National Bank was incompetent for two reasons, (1) none of the transactions between appellant, Coffman and the Lincoln National Bank are set out in the bill; (2) it can be of no concern whatever to the appellees what arrangement was made between appellant and the Lincoln National Bank no matter how fraudulent the agreement with that bank might have been as it could not in any way have affected the interests of appellees.

Surety companies organized for the purpose of becoming sureties on official and commercial bonds have an established place in furnishing security for commercial and legal requirements and have become practically indispensable where large amounts of money are involved. They are regulated by law and operate under qualifications and restrictions provided by the legislature. The law implies a promise on the part of a bank to repay funds deposited with it and it is not unlawful for the bank to give security that it will perform this duty. In the case of Comstock v. Gage, 91 Ill. 328, Gage was the city treasurer of Chicago and deposited the city funds in the Manufacturers’ National Bank of Chicago. The bank gave an indemnifying bond to Gage as such treasurer conditioned that it should promptly upon demand or presentation pay all checks or drafts which may be made by said Gage as treasurer, etc. This bond was executed by the. bank and by a number of personal sureties. Suit was brought upon the bond by Gage for the use of the city, in which the sureties pleaded that by an arrangement between the bank and Gage the moneys deposited were to remain as security for Gage’s private indebtedness to the bank so that his power to withdraw the money depended upon his ability to pay such indebtedness and the fact of such arrangement not having been communicated to the sureties they were not bound. The court held: ‘ ‘ There may have been irregular and censurable conduct of Gage in mixing up public with private business, but we cannot think it should have the effect of vitiating this bond. Its condition requires nothing illegal, but guarantees that the bank shall simply perform its duty, which, in law, it was, in any event, bound to perform, viz., to pay over the city money thus being on deposit, to the city treasurer when demanded. It was not part of any scheme to violate the law, or to misappropriate the public moneys, but a guaranty that the money should be paid over to the party to whom it rightfully belonged.

. . . This .was just what the bank ought to do. There would arise an implied promise on its part to do it; and why might not an express engagement by another person, that the bank should perform this, its implied promise, be valid?” In McFerson v. National Surety Co., 72 Colo. 482, it is said: “The right of the treasurer to deposit money in the banks is not involved, and that right is of course undoubted. There is no question that a bank, in order to secure deposits, may give security for them. The giving of the indemnifying bonds was within the authority of the banks, and was a matter of ordinary business.” In the case of Interstate National Bank v. Ferguson, 48 Kan. 732, the court held: “And a bank may certainly, as a part of its legitimate banking business, receive deposits, pay interest thereon, secure its depositors by bond or any other lawful means, and loan the money which it receives as general deposits”; in Leonard Co-op. Creamery Ass’n v. First State Bank, 168 Minn. 28, in discussing the power of a bank to give an indemnifying bond to its depositor held: “We see no reason why this kind of transaction is not an incidental power. Inherently it is not detrimental to either the stockholders, depositors or to the public. It may be beneficial to all. In case of insolvency the transaction has not increased the liability to the detriment of others. . . . Banks may by giving such a bond be able to procure deposits which otherwise they would never have. The incidental power necessarily implies that a bank may give such a bond. It does not increase the bank’s liability beyond that which would result if the deposit was received without the bond. Whether the bank should in fact furnish it and pay the premium usually incident to a surety bond rest in the judgment of the management. The incidental expense is trivial. The incidental possibilities may be as important and valuable as they may be attractive.” It is not unlawful for a surety to require the principal on the bond to designate where the funds secured by the bond shall be deposited. In the case of McCollister v. Bishop, 78 Minn. 228, the court said: “It is customary, as well as entirely proper, for these fidelity companies, before executing bonds as surety, to insist on being advised, and having some understanding with their proposed principal, as to where the trust funds will be deposited. This is a matter which affects the risk which, they will assume if they execute a bond. It also enables them to keep track of the conduct of their principal with regard to the disposition of the fund.”

Although an obligation may be directly connected with an illegal transaction, it will not thereby be barred from enforcement if it is not necessary to require the aid of the illegal transaction to make out a case. Teich v. Chicago, 298 Ill. 498; Pitsch v. Continental & Commercial Nat. Bank, 305 Ill. 265. In the case of Illinois Surety Co. v. Munro, 209 Ill. App. 407, the court held: “Contracts of indemnity are distinguished from those of guaranty in that in indemnity contracts the. engagement is to make good and save another from loss upon some obligation which he has incurred or is about to incur to a third person, and is not, as in guaranty, a promise to one to whom another is answerable. The promise in an indemnity contract is an original and not a collateral undertaking. 22 Cyc. 79-80.” This bond of indemnity is an original and not a collateral contract and for its enforcement requires no aid of any other transaction legal or illegal.

By leave of court counsel for appellee, Eliza Hughes, administratrix of the last will and testament of George Hughes, deceased, have filed a brief in behalf of said appellee wherein is discussed the liability of the estate of the deceased but under the present condition of the record this question cannot be considered at this time on this appeal, as it must first be determined and adjudicated in the court below.

For the reasons set out in this opinion the decree of the circuit court is reversed and the cause remanded with directions to grant the relief prayed for in the cross-bill of appellant and to dismiss the original bill for want of equity.

Reversed and remanded with directions.

Shurtlepf, J., took no part in this case. ■


text:
    Hortense M. Robeson, Appellee, v. Greyhound Lines, Inc., Appellant.
    Gen. No. 8,366.

      Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    Bush & Harrington, for appellant; T. E. Lyons, of counsel.
    Boyer & Leonard and H. F. Simonson, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment in the circuit court of Champaign county for the sum of $3,000 for damages for injury to her person caused by an automobile collision. The first four counts of the declaration are based upon negligence and the fifth count upon wilfulness and wantonness on the part of appellant.

The first assignment of error submitted to this court is that the fifth count does not state a cause of action. In substance it is charged therein that the plaintiff on the first day of July, 1928, in the city of Champaign owned and drove a certain automobile in an easterly direction on Stoughton Street toward its intersection with Third Street; that defendant was then and there possessed of and by its servants was operating a certain motor bus in a southerly direction on Third Street toward this intersection; that plaintiff drove her automobile into the intersection aforesaid while said motor bus was approaching from the left on Third Street and while the automobile of the plaintiff was in full and plain view of the driver of the motor bus the driver thereof drove the motor bus at a high and dangerous rate of speed, to wit: 35 miles an hour, without slackening the same, and wilfully and wantonly drove and ran said motor bus against the plaintiff’s automobile, overturned the same causing the injury to plaintiff; that the intersection of Third and Stoughton Streets is in a closely built-up residence section of the City of Champaign. It is claimed that the facts alleged in this count do not show any wilful and wanton misconduct on the part of the servant of the defendant in driving said motor bus in a closely built-up section of a populous city for the reason that a violation of the statute in regard to the speed of motor vehicles in cities is not evidence of wilfulness and wantonness. If that was the only allegation as to the conduct of the servants of defendant.in the driving of the motor bus the objection would have been well taken but the count also charges that the plaintiff was in full view of the operator of the motor bus and had the right-of-way over the intersection and also that the operator of the motor bus wilfully and wantonly ran the same into her automobile causing the injuries complained of. The averments are sufficient to charge the acts of the operator of the motor bus to have been wilful and wanton.

It is next urged that the proofs do not sustain this count. The evidence is conflicting upon almost every material fact in the case. However, the operator of the motor bus testified that he saw the plaintiff approaching the intersection and driving thereon. The evidence for the plaintiff tended to prove that the motor bus was being driven south on Third Street at. a rate of speed between 30 and 40 miles per hour, that said speed was not slackened as it approached the intersection of the two streets and that no signal was given of the approach of the motor bus toward the intersection. Third Street between the curb lines thereof was 37 feet wide. Along this street were two street car tracks, one for northbound traffic and one for the southbound traffic. Third Street was closely built up with residences and was a street of much public travel. The motor bus weighed 14,000 pounds or 7 tons and was carrying at the time of the accident 25 passengers. Whether the driving of such a large motor bus and of such weight and capacity at a speed of from 35 to 40 miles an hour along a much used street in a populous city against an automobile which the operator of the motor bus saw approaching and entering the intersection and which had the right-of-way at the time was wilful and wanton conduct on the part of the operator of the motor bus was a question of fact for the jury to determine. Bernier v. Illinois Cent. R. Co., 296 Ill. 464. In this case it was also held: “Ill-will is not a necessary element of a wanton act. To constitute a wanton act the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. (20 R. C. L. 21.) It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a wilful or wanton act. Whether an act is wilful or wanton is greatly dependent upon the particular circumstances of each case. Where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of wilfulness or wantonness.” In the case of Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596, it is held that the running of a train at a high rate of speed in a crowded city, over street crossings, upon unguarded tracks so connected with a public street and so apparently the continuation of a public street as to be regarded by ordinary citizens as a public street along a portion of such tracks where persons were known to be passing and crossing every day, in violation of a city ordinance as to speed and without warning of the approach of the train by the ringing of a bell, was such gross want of care and regard for the rights of others as to justify the presumption of wilfulness. In the case of Bremer v. Lake Erie & Western R. Co., 318 Ill. 11, it is said: “The rule is equally well settled that for an injury occasioned by the wilful or wanton act of the defendant, or by such gross negligence as is equivalent to wantonness or wilfulness, the defendant is liable. ’ ’ It was stated in the case of Brown v. Illinois Terminal Co., 319 Ill. 326, “Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of. wilful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to establish the charge. ... A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. ’ ’ The facts as established by the evidence introduced on behalf of the plaintiff would sustain a charge of wilfulness or wantonness under the common law without the aid of the statute regarding the speed of motor vehicles in cities or the question of right-of-way at public crossings.

The eighth instruction given on behalf of the plaintiff is as follows: “The court instructs the jury that under the fifth count of the declaration, in order for the plaintiff to prove that the defendant was guilty of wilful and wanton conduct in the operation of its motor bus at the time and place in question, it is not necessary for the plaintiff to prove actual ill-will on the part of the defendant, or its agents, toward the plaintiff; but if the preponderance or greater weight of the evidence shows that the defendant, in the operation of its motor bus just prior to and at the time of the accident in question, operated the said bus at such high, dangerous and reckless rate of speed (if you find the same was so operated), and so as to evince on the part of the defendant a reckless disregard of the rights of others, and so as to evince a willingness on its part to do injury, then, if you so find from the preponderance of the evidence, the plaintiff would be entitled to recover upon the fifth count of her declaration, charging wilfulness and wantonness.” This instruction is criticized on the ground that it directs a verdict and does not require the jury to find that the defendant wilfully and wantonly struck the plaintiff’s automobile and that it wilfully and wantonly injured the plaintiff. That the motor bus in question struck the plaintiff’s automobile is conceded and there is no conflict in the evidence on this point nor as to the fact that by reason of such striking the plaintiff was injured. It is no ground for a reversal that an instruction assumes as proved a fact conclusively established by the evidence without contradiction. Brennan v. Streator, 256 Ill. 468; Petersen v. Elgin A. & S. Traction Co., 238 Ill. 403; Chicago City Ry. Co. v. Allen, 169 Ill. 287. The jury could not have been misled by the giving of this instruction.

The defendant filed a plea of not guilty and also a special plea denying the ownership of the bus in question and that the bus was operated by agents or servants of the defendant. On February 24, 1926, a charter was issued for the incorporation of the Purple Swan Safety Coach Lines, Inc., and it was authorized to carry passengers for hire by means of motor buses, etc., and all other power-propelled, drawn or driven vehicles and devices. On April 26, 1926, the Purple Swan Safety Coach Lines, Inc., was authorized by the Secretary of State to do business in this State. On December 6, 1927, this corporation amended its charter by changing its name to that of “Greyhound Lines, Inc.” A transcript of these proceedings in regard to the change of name was not filed with the Secretary of State of Illinois until July 18, 1928, 18 days after the accident in this case. The only change made in the organization was the change of name. To sustain the special plea Sparks, the operator of the motor bus, testified that he was employed by the Motor Transit Management Co. and had been so employed for 22 months and was driving “a bus for the Motor Transit Management Company on July 1, 1928, at the time of the accident.” The witness Bonn testified that he was an inspector for the Motor Transit Management Co., was such inspector on July 1, 1928, and was in Champaign on the bus in question. The bus in question had the words “Greyhound Lines” painted thereon. The evidence showed that a number of other buses of the same kind and character passed at different times through the City of Champaign. They were all painted blue, trimmed in white of the same size and marked with the words ‘‘Greyhound Lines” and were all Fegeol buses. The bus in question in this case bore the number 113. Proof was made of the licensing of other buses of the Greyhound Lines numbers 111 and 129 and that the application for such licenses was signed “Greyhound Lines, Inc.,” but no proof was made in regard to the licensing of this particular bus number 113. Immediately after the accident Sparks, the operator of the bus, handed to the plaintiff a written slip of paper with the words, “Joe D. Sparks,. No. 271. Greyhound bus No. 113.” Slight evidence of a substantial nature was sufficient to establish the ownership of the motor bus in question and the fact that it was marked “Greyhound Lines” was prima facie evidence that it was the property of and being operated by the servants of that company. East St. Louis C. R. Co. v. Altgen, 210 Ill. 213. In the case of Pittsburgh, C. & St. L. Ry. Co. v. Knutson, 69 Ill. 103, the court held: “In reference to such a fact we cannot expect full and undoubted proof. The ownership can only be proved or disproved positively by some of the officers of the road. It is no doubt true that the larger portion of the employees of the company, and all persons not connected with it, can have no certain knowledge of the ownership, or what company is using such property. . . . The evidence was prima facie sufficient to prove this fact, that the company owned the property, and if untrue appellants had it in their power to disprove it; but have failed to do so, and cannot complain that the jury have found that issue as they did.” The prima facie evidence that the defendant did own the motor bus which caused the injury is in no way disproved by the testimony of Sparks as he was not an officer of the Motor Transit Management Co. and his evidence amounts at the most that he was driving the motor bus for the Motor Transit Management Co. The testimony of Bonn does not tend to either prove the ownership of the bus nor that it was being operated by the Motor Transit Management Co. The evidence shows that the defendant had a license to operate a line of buses known as the Greyhound Lines for the purpose of carrying passengers for hire within the State of Illinois.. The prima facie evidence that the defendant owned the bus is uncontradicted and if in fact it was being operated by another company the defendant cannot escape liability for injuries caused by the negligence of the operator of said bus. It was held in the case of Pennsylvmia Co. v. Ellett, 132 Ill. 654, that the grant of a franchise, giving the right to operate a railway carries with it the duty to 'so use the property and manage and control the railroad as to do no unnecessary damage to the person or property of others; and where injury results from the negligent or unlawful operation of the railroad, whether by the corporation to which the franchise is granted, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise will be liable. This same rule of law applies to the operation of motor buses operating in this State as common carriers for hire under a franchise granted by the State. However, the defendant is precluded from raising this question by the giving of the first instruction to the jury requested by it. This instruction is as follows: ‘ ‘ The Court instructs the jury that as matter of law if they believe from the evidence that the automobile of the defendant on approaching the place in question was being operated in a reasonable, prudent and careful manner, and that defendant’s driver did everything that an ordinary, reasonable and prudent person would have done under the circumstances, to avoid colliding with the automobile of the plaintiff as soon as the driver saw, or by the exercise of due care, should have seen, the danger of the plaintiff:, then the jury should find the defendant not guilty.” This instruction assumes and in fact tells the jury that the motor bus was the property of the defendant and the driver thereof was a servant of the defendant.

We find no reversible error in the record and the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Grace L. Miller, Administratrix of the Estate of Claude E. Miller, Deceased and Grace L. Miller, Appellants, v. Margaret Miller, Appellee.
    Gen. No. 8,367.

      Opinion filed April 22, 1930.
    Williamson & Winklemann and Costigan & Wollrab, for appellants.
    Wilber H. Hickman, for appellee; C. H. Swick and F. T. Carson, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On December 14, 1926, Claude E. Miller, while employed as brakeman for the P. & E. R. R. Co. and the C. C. & St. L. R. R. Co., was killed in the discharge of his duties while engaged in interstate commerce. His widow, Grace L. Miller, was appointed administratrix of his estate by the county court of Champaign county and brought suit in the circuit court of Cook county against said railroad companies under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, H 321 et seq. A settlement of the case was consummated by the payment to her as such administratrix of the sum of $6,000. By leave of the county court she paid her attorney 25 per cent of this amount as attorney’s fees, leaving a net sum of $4,500 to be distributed to those entitled thereto under said act. The deceased left his widow, Grace L. Miller, and one daughter by a former wife, the appellee, Margaret Miller, though it appears from the record that her correct name is Lida Margaret Miller. The mother of appellee procured a divorce from the deceased November 12, 1914, at which time appellee was 5 years old. In 1916 appellee and her mother moved to the State of Ohio where they have since resided. At the time of the death of her father appellee was 18 years and 6 months old. On April 12, 1916, a supplemental decree was entered in the divorce proceedings whereby the deceased was ordered to pay to his first wife for the support of their daughter, appellee, $12 on April 1, 1916, and $12 on the first day of each and every month thereafter until further order of the court. At the time of the death of the deceased he was earning about $165 per month. On February 25, 1924, he paid $20 for the support of appellee under the decretal order entered in the divorce case, also $60 on April 30, 1924, and $60 about 6 months before his death. The appraisement bill filed in the estate shows that the same consisted of household goods of the value of about $81 and back pay from the railroad companies of $68. He left, however, life insurance of which appellee received $1,000 and appellant $1,800. Appellee’s birthday is May 31 and she became 18 years of age about 6% months prior to her father’s death. Appellant, his widow, had no financial means of any kind and depended entirely upon his earnings as brakeman. After the death of the deceased, his former wife was appointed guardian of appellee in order to collect the insurance due her daughter. At the time this cause was tried appellee was earning $97 a month and had received this amount for two months prior thereto and had received $90 a month for five months previous to that time. She was a high school graduate and had spent one year in college. She started to work as a stenographer at the rate of $12 per week and was earning this amount at the time of her father’s death. Her salary had gradually increased until it had reached the sum of $97 per month.

Appellant contends that under the provisions of the Federal Employers’ Liability Act she is entitled to the whole net amount of the settlement, while appellee, under cross errors assigned by her, contends that the distribution of the proceeds of settlement should be made in accordance with the laws of descent of this State. The county court ordered that the sum of $2,625 be paid to appellant and $1,875 be paid to appellee. On appeal to the circuit court that court ordered that $3,000 of the amount be paid to appellant and $1,500 to appellee. Section 1, Cahill’s St. eh. 64, fí 1, provides that males of the age of 21 and females of the age of 18 shall be considered of full age for all purposes ; and until these ages are attained, they shall be considered minors. It- is urged by appellant that appellee having attained the age of 18 years and being-self-supporting at the time of her father’s death she was not entitled to share in the damages recovered by virtue of said act. It is insisted by appellee that under the laws of Ohio a female does not become of age until she has reached 21 years and therefore she was still a minor child at the time of her father’s death, on the assumption that the law of Ohio where she resided should prevail. No laws of -the State of Ohio were offered in evidence on this question but in lieu thereof a letter from the Attorney General of that State was admitted subject to objection in which he stated that under the laws of Ohio 21 years was the legal age of a female person. This letter was incompetent and there being- no competent evidence as to what the laws of Ohio are or were at the time of the death of the deceased it will be presumed that the common law prevails in that State. Under the common law the full age of either male or female is 21 years (2 C. J. 402, also note 17 [d]). However, neither the law of Illinois nor that of Ohio is controlling upon this question as it is governed by the law of the United States. Our research has failed to find any federal statute defining the terms, “legal age,” “lawful age” or “full age,” these terms being used synonymously in different jurisdictions. Therefore we conclude that the common law prevails in situations arising under the federal laws, and, considering the questions arising on this appeal, appellee must be considered to have been a minor at the time of her father’s death. Southern Ry. Co. v. Gray, 241 U. S. 333; New Orleans & N. R. Co. v. Harris, 247 U. S. 367.

When congress assumed to take jurisdiction of the question of damages arising out of injuries received by employees engaged in interstate commerce, it took complete and exclusive jurisdiction of the subject matter. Congress may permit the different States to exercise jurisdiction over matters in which jurisdiction is inherent in the federal government, but when it assumes to act and take unto itself such jurisdiction all State laws in regard to such subject matter are abrogated and set aside. Until 1908 congress had not assumed any jurisdiction over the subject of master and servant in so far as it involved damages received by the servant while engaged in interstate commerce, and the different States were free to apply their respective laws in such cases, but since that time State laws no longer have any force or effect in regard to the subject matter embraced in said act. While the act gives concurrent jurisdiction to State and federal courts for the trial of causes of action arising thereunder, yet the State courts are bound to follow the construction thereof in accordance with that laid down by the Supreme Court of the United States. The Supreme Court of Illinois early recognized the principles hereinabove announced in the case of Staley v. Illinois Cent. R. Co., 268 Ill. 356. The plaintiff in error in that case sought to procure compensation for the death of her husband under the Workmen’s Compensation Act of this State, Cahill’s St. ch. 48,If 201 et seq., he having been killed by one of the switch engines of defendant in error while engaged in interstate commerce. The court held: “The Federal Employers’ Liability act has taken possession of — has occupied — that field for the purpose of calling into play therein this exclusive power of the Federal government. Necessarily, all common or statute law of this State on that subject has been superseded. The field' of liability as to employees injured while engaged in inter-State commerce on railroads is occupied exclusively by the Federal Employers’ Liability act, — and that, too, regardless of the negligence or lack of negligence of either party to the litigation. Beyond question the Federal Employers’ Liability act superseded, as to injuries of employees engaged on railroads in inter-State commerce, all statute or common law in force in the State of Illinois previous to the passage of the Workmen’s Compensation act.” The principles announced, in the Staley case, supra, have been confirmed and approved by the Supreme Court of the United States in many cases and particularly in the case of New York Cent. R. R. v. Winfield, 244 U. S. 147, wherein it is stated: “The State decisions upon the point are conflicting. The New York court in the present case and the New Jersey court in Winfield v. Erie R. Co., 88 N. J. L. 619, hold that the act relates only to injuries resulting from negligence, while the California court in Smith v. Industrial Accident Commission, 26 Cal. App. 560, and the Illinois court in Staley v. Illinois Cent. R. Co., 268 Ill. 356, hold that it has a broader scope and makes negligence a test, — not of the applicability of the act, but of the carrier’s duty or obligation to respond pecuniarily for the injury. In our opinion the latter view is right and the other wrong.”

Section 1 of the act, Cahill’s St. ch. 114, f 321, is as follows: “That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents, and if none, then of the next of kin dependent upon such employee, for such injury or death resulting, in whole or in part, from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.”

In the case of Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, it is held: “Prior to this act Congress had not deemed it expedient to legislate upon the subject, though its power was ample. . . . By this act Congress has undertaken to cover the subject of the liability of railroad companies to their employees injured while engaged in interstate commerce. This exertion of a power which is granted in express terms must supersede all legislation over the same subject by the States.” And again: “It therefore follows that in respect of State legislation prescribing the liability of such carriers for injuries to their employees while engaged in interstate commerce, this act is paramount and exclusive, and must remain so until Congress shall again remit the subject to the reserved police power of the States.” In regard to the rights of those who might benefit under the statute the court further held in this case: “It is a liability for the loss and damage sustained by relatives dependent upon the decedent. It is therefore a liability for the pecuniary damage resulting to them, and for that only. ’ ’

In the case of American Railroad Company of Porto Rico v. Didricksen, 227 U. S. 145, the court held: “The cause of action which was created in behalf of the injured employee did not survive his death, nor pass to his representatives. But the act, in case of the death of such an employee from his injury, creates a new and distinct right of action for the benefit of the dependent relatives named in the statute. The damages recoverable are limited to such loss as results to them because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss thus sustained. The court below went beyond this limitation by charging the jury that they might, in estimating the damages ‘take into consideration the fact that they are the father and mother of the deceased and the fact that they are deprived of his society and any care and consideration he might take of them, or have for them during his life. ’ The loss of the society or companionship of a son is a deprivation not to be measured by any money standard. It is not a pecuniary loss under such a statute as this. Laying out of consideration the indefiniteness of the term ‘care and consideration,’ as elements in addition to the loss and damage of such pecuniary assistance as the parents of the decedent might have reasonably anticipated from their son, it is enough for the purpose of this case to say that there was no allegation of any such loss, nor any evidence relating to the subject, or from which its pecuniary value might have been estimated.” It might be suggested that, as the above case was brought by the father and mother of the deceased, the rule therein announced that the damages must be limited strictly to such financial loss as results from a reasonable expectation of pecuniary benefits by the wrongful death of the employee has no application in a suit brought by the widow and the children of the deceased, but in the case of Gulf, C. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173, the same rule is applied in a suit by the widow and her children for such damages and the Didrichsen case, supra, is cited as an authority therefor. In the McGinnis case it appeared that one of the children was a married woman residing with and maintained by her husband, and the Court of Civil Appeals of the State of Texas held: “The Federal statute expressly authorized the suit to be brought by the personal representative for the benefit of the surviving wife and children of the deceased, irrespective of whether they were dependent upon him, or had the right to expect any pecuniary assistance from him.” The Supreme Court of the United States, however, held the above construction to be erroneous and said.: “This construction of the character of the statutory liability imposed by the act of Congress was erroneous. In a series of cases lately decided by this court, the act in this aspect has been construed as intended only to compensate the surviving relatives of such a deceased employee for the actual pecuniary loss resulting to the particular person or persons for whose benefit an action is given. The recovery must therefore be limited to compensating those relatives for whose benefit the administrator sues as are shown to have sustained some pecuniary loss. . . . The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is. brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. . . . This will, of course, exclude any recovery in behalf of such as show no pecuniary loss.”

In the eases of St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156 and Taylor v. Taylor, 232 U. S. 363, it is held that the Federal Employers’ Liability Act of 1908, as amended in 1910, supersedes all State statutes upon the subject covered by it, and the distribution of the amount recovered in an action for death of an employee is determined by the provisions of the act and not by the State law. In the case of Garrett v. Louisville & N. R. Co., 235 U. S. 308, the question of the sufficiency of the declaration was involved. The court in this case held: “It is now definitely settled that the act declared two distinct and independent liabilities resting upon the common foundation of a wrongful injury: (1) liability to the injured employee for which he alone can recover; and (2), in case of death, liability to his personal representative ‘for the benefit of the surviving widow or husband and children,’ and if none, then of the parents, which extends only to the pecuniary loss and damage resulting to them by reason of the death. . . . The plaintiff’s declaration contains no positive averment of pecuniary loss to the parents for whose benefit the suit was instituted. Nor does it set out facts or circumstances adequate to apprise the defendant with reasonable particularity that such loss in fact was suffered. Common experience teaches that financial damage to a parent by no means follows as a necessary consequence upon the death of an adult son.” The case of Norfolk & Western Ry. Co. v. Holbrook, 235 U. S. 625, holds: “Under the employers’ liability act, where death is instantaneous, the beneficiaries can recover their pecuniary loss and nothing more; but the relationship between them and the deceased is a proper circumstance for consideration in computing the same. The elements which make up the total damage resulting to a minor child from a parent’s death may be materially different from those demanding examination where the beneficiary is a spouse or collateral dependent relative; but in every instance 'the award must be based upon money values, the amount of which can be ascertained only upon a view of the peculiar facts presented.” In the case of Devine v. Chicago, R. I. & P. R. Co., 266 Ill. 248, a verdict was returned in favor of the plaintiff in the sum of $15,000 in a suit brought under the' Federal Employers’ Liability Act. • It was assigned as error that the amount of the verdict should not have been to exceed $10,000, the limit provided by the statutes of Illinois. The Supreme Court held that the cause of action was entirely controlled by the federal act and as that act placed no restriction on the amount of damages no limitation could be applied thereto. This case was affirmed by the Supreme Court of the United States, 239 U. S. 52. The liabilities of interstate railroad carriers to make compensation for personal injuries suffered by their employees while engaged in interstate commerce are regulated both inclusively and exclusively by the federal act, and no room exists for State regulation. New York Cent. R. Co. v. Winfield, 244 U. S. 147; Erie R. Co. v. Winfield, 244 U. S. 170.

. Damages under the Federal Employers’ Liability Act should be equivalent to the loss sustained by the beneficiaries resulting from the deprivation of the reasonable expectation of pecuniary benefits which would have resulted from the continued life of the deceased employee and the question of the proper measure of damages is inseparably connected with the right of action and must be settled according to general principles of law as administered in the federal courts. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485.

During the period the Federal Employers ’ Liability Act was undergoing construction by the Supreme Court of the United States a number of the State courts gave various constructions thereto and rendered decisions which were found to be at variance with the views later expressed by the Supreme Court of the United States. Some of these have been cited by appellee but such decisions can have no influence in determining the proper construction of the act where they are opposed to that expressed by the latter court. In our opinion it is clearly established: (1) that the jurisdiction of the federal government over injuries received by employees of interstate carriers while engaged in interstate commerce is exclusive and inclusive and State laws have no application to such cases; (2) in case of the death of such employee the beneficiaries shall, in the first instance, be the surviving widow and children, but to entitle such widow or child to damages, the proofs must show that such widow or child had a reasonable expectation of pecuniary benefit which would have resulted from the continued life of the deceased employee; (3) the measure of damages is a substantive part of the act and is not controlled by State laws of descent, distribution, or otherwise.

It is unnecessary to discuss the amount of damages allowable" to the widow as the evidence shows that she would be entitled to an amount equal to or in excess of the whole amount of the settlement if there had been no surviving child. In order to entitle appellee to share in this fund, the evidence must show that she had a reasonable expectation of receiving pecuniary benefits from the deceased had he lived, which benefits must be measured by a money standard. That the deceased intended to contribute money to some extent to the support of appellee cannot be doubted. He had made several payments for her benefit before his death, the last one about 6 months prior thereto. That he had in mind his paternal relations to appellee is also shown by the fact that he had provided life insurance payable to her at his death. The evidence fairly tends to show that he intended to help appellee financially during her minority as much as his limited means would permit. However, in our opinion, from the facts in this case, the most that appellee could have reasonably expected as financial benefits from her father had he lived would have been the sum of $12 per month from the time of his death until she reached the legal age of 21 years, which would cover a period of 2 years and 6 months. This would be the extreme limit of any financial benefit she could have reasonably expected. "While the deceased was in arrears on his payments of alimony there could be no reasonable expectation that he ever would or could have paid all the money decreed if he had lived and such financial benefits are not based upon legal obligations alone. Michigan Cent. R. Co. v. Vreeland, supra.

The apportionment of damages between beneficiaries in cases arising under the Federal Employers ’ Liability Act must necessarily depend upon the facts developed in each particular case and in case at bar we can find no justification in the evidence for the amount meted to appellee, which, in our opinion is excessive.

The judgment of the circuit court is reversed and cause remanded with directions to apportion the damages between appellant and appellee in accordance with the views herein expressed.

Reversed and remanded with directions.