author: Mr. Presiding Justice

text:
    Enos Book, Appellee, v. E. H. Ewbank, Appellant. E. H. Ewbank to the use of Enos Book, Appellant, v. Thomas Ewbank, Executor, and Hannah Book, Executrix of Last Will and Testament of Levinus Ewbank, Deceased, Appellees.
    Gen. No. 9,687.

      Heard in this court at the May term, 1941.
    Opinion filed August 7, 1941.
    Rehearing denied August 30, 1941.
    Sheldon & Brown, of Sterling, for appellant.
    I. L. Weaver and Edward F. Mee, both of Sterling, for appellee.
   Mr. Presiding Justice

Wolfe delivered the opinion of the court.

On October 23, 1939, Enos Book filed a complaint and cognovit in the circuit court of Whiteside county, on a promissory note of $2,000 executed by E. H. Ewbank on February 26, 1920, in which Enos Book was named as payee. The note was due one year after date, and made payable at the Sterling National Bank in Sterling, Illinois, with 6 per cent interest from date until the note was paid. The note also contained a power of attorney which appoints any attorney to appear in any court of record, in any State, in term time or vacation, at any time after date of note, and waive service of process and confess a judgment in favor of the holder of the note for the amount thereof and interest, and costs. A judgment was entered in favor of plaintiff for $4,360.

An execution was issued on said judgment and delivered to the sheriff. The sheriff made his return, “No property found, no money made, and not satisfied.” On November 6, 1939, Enos Book instituted a garnishment proceeding against Thomas Ewbank, executor, and Hannah Ewbank, executrix, of the last will and testament of Levinus Ewbank, deceased. A summons was issued and the executor and executrix filed their answer. A hearing was had upon the complaint and answer, and the court entered an order finding that the executors had in their possession $1,133.33 due E. H. Ewbank, but which is subject to Ewbank’s share of the costs and expenses in the administration of the estate. On January 3, 1940, a judgment was entered upon the findings of the court.

On March 29, 1940, the defendant, E. H. Ewbank, filed his affidavit in said court, and asked leave to open up the judgment entered on October 23, 1939, and leave to plead in said case.

In his affidavit supporting his motion, he states that he is a resident of the State of Michigan; that he had not been a resident of the State of Illinois, since 1912; that the note on which judgment was entered was executed in the State of Indiana on or about February 16, 1920, and was due February 16, 1921; that the $2,000, the consideration for the note, was paid to him in the State of Indiana; that no part of the principal or interest has ever been paid; that the note was barred by the statute of limitations prior to October 23, 1939; that the circuit court of Whiteside count;. was without jurisdiction to enter judgment on said note; that the note shows on its face that it was due February 16, 1921; that the affidavit made a part of the complaint states, that the defendant is a resident of the State of Michigan, but neither the complaint nor the said affidavit sets forth any facts which toll the running of the statute of limitations, or bring it within any of the statutory exceptions to the bar of the statute of limitations, which became effective February 16, 1931. On a hearing on said motion and the answer of the plaintiff, the court sustained the motion to open up the judgment, and granted the defendant leave to plead. The judgment heretofore entered was ordered to stand as security for the debt. On June 5, 1940, the defendant filed his answer which states that he appears specially by his attorney to object to the court’s jurisdiction of the person of the defendant. The answer then states facts practically the same as set forth in his affidavit and motion for leave to open up the judgment, and for leave to plead. A hearing was had before the court on September 12, 1940, at which time the court found the issues in favor of the plaintiff, and ordered that the judgment in favor of the plaintiff and against the defendant, be confirmed.

E. H. Ewbank filed a motion and an amended motion on November 5, 1940, in the garnishment suit wherein he moved that the judgment entered on January 3, 1940, and the summons and return thereof, be quashed, and the affidavit for garnishment and summons be stricken from the files, because the garnishment was premature and could not reach the proceeds of a sale of land which was sold by the executors subsequent to the service of the garnishment writ, and that the garnishment proceeding, including the conditional judgment is unauthorized, illegal and void.

He states as additional grounds for said motion that the transcript sets forth that the request for summons in the garnishment proceeding is against Thomas Ewbank, executor, and Hannah Book, executrix, and pursuant to said request that the summons was so issued; that the affidavit and garnishment states that, “Affiant has just reason to believe that Thomas Ewbank, executor, and Hannah Ewbank, executrix, etc., of the last will and testament of Levinus Ewbank, deceased, are indebted to said defendant, and have effects and estate of said defendant in their possession, custody and charge”; that the affidavit prays that said parties may be summoned as garnishees, and that the affidavit names a different party than the request for summons. The affidavit and pleadings are quite lengthy, but these are the material parts of the pleading. A hearing was had upon the motion to dismiss and the same was overruled. The court then entered an order finding that Thomas Ewbank, executor, and Hannah Book, executrix, are justly indebted to E. H. Ewbank for the use of Enos Book $1,070, including costs, upon which this judgment was predicated, and judgment was entered in accordance with the finding. Said judgment to be paid in the due course of administration. It is from this order that the appeal is prosecuted.

It is first insisted that the court did not have jurisdiction to enter judgment against the defendant, E. H. Ewbank, on the promissory note because it showed on its face that the statute of limitations had run against the note, and therefore any judgment entered upon the note is void. The stipulation entered into between the parties shows that the note was signed, and the $2,000, the face of the note, was paid to E. H. Ewbank in the State of Indiana; that at the time the note was executed, Ewbank lived in the State of Indiana, and has lived in that State and the State of Michigan ever since the note was signed, and that at no time since the note was signed until the judgment was taken, did Ewbank live in the State of Illinois, or has been present in this State. It is also stipulated that the note was made payable at Sterling, Illinois. It is on these facts that the appellant relies that the statute of limitations had run against the note. The appellee claims that on account of the defendant being absent from the State ever since the note had been signed, and the fact that the note was made payable at Sterling, Illinois, the running of the statute was tolled, and he did not lose his cause of action. In the early case of Story v. Thompson, 36 Ill. App. 370, the same question was before this court. The makers of the notes were residents of the State of Wisconsin. They executed the notes on October 13, 1875. The payee of the note resided at Galena, Illinois, and had continued to reside there. The notes were made payable in Galena, Illinois, at the First National Bank. Judgment by confession was taken upon the notes at Galena, Illinois. The defendants filed several pleas, and claimed that the statute of limitations of the State of Wisconsin controlled the collection of the notes, and that by said statute, no action could be brought against them. They claimed that the notes were executed and delivered in the State of Wisconsin. They also claimed that the ten years statute of limitations of the State of Illinois was a bar to the action. The court discussing the law relative to the case, used this language: “We think, clearly, in accordance with the provisions of Section 18, the cause of action was not barred in this State. This section was enacted for the benefit of the residents of the State of Illinois, holding claims against persons residing outside the State, coming due while such persons are out of the State, no matter if such debtor had never been in the State, as well as to such debtors who resided in the State, and after the claim became due or the cause of action accrued going out of the State.

“We can scarcely imagine how the language of the statute could have been plainer to effect such purpose than it is. The object of the statute was to favor residents of this State as against residents of other states, territories and foreign nations, and to relieve them from the necessity of following their debtors all over the United States and its territories, and foreign countries, compelling them to sue in the forum where such debtor resides or may be found, if found at all, under pain of losing their debts by the running of the statute of limitations. Nearly if not every State in the Union has a similar statute and exception in favor of its own citizens. When we also consider the exception at the close of Section 18, providing that ‘the foregoing provisions . . . shall not apply to any case, when, at the time the cause of action accrued, or shall accrue, neither the party against or in favor of whom the same accrued or shall accrue, were or are residents of this State, ’ we are forced to the conclusion that the statute meant exactly what it said, and meant it to apply only to residents of this State, either debtor or creditor, having claims accruing to the creditor or against the debtor. The implication clearly is, if the section should apply to no others, it was intended to apply to them.”

This case was cited and quoted with approval in Orschel v. Rothschild, 238 Ill. App. 353, and in Thornton v. Nome & Sinook Co., 260 Ill. App. 76. It is our conclusion that the absence of Ewbank from the State tolled the statute of limitations, and this was not a bar to the action.

It is next insisted that the judgment is void because" the face of the note showed that the statute of limitations had run against it, and that before the court could have jurisdiction in the matter there must be facts and circumstances brought to the attention of the court by affidavit or otherwise, to show the reason why the statute of limitations did not run against the note, but had been tolled. Appellant as his authority for this position cites the case of Matzenbaugh v. Doyle, 156 Ill. 331. An examination of that case discloses that the court did say that in cases of judgment by confession where it appears on the face of the pleadings that the statute of limitations had run against the note, there should be something to show wherein the statute of limitations had been tolled, for without that, the judgment was void. An examination of the facts in this case discloses that the judgment was confessed before the clerk of the court who is purely a ministerial officer. We think a different rule applies to the confession of a judgment in open court, and one before the clerk of the court. In the case of Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502, the plaintiff started a suit against the bonding company on a bond, and in their declaration set forth facts to show why the statute of limitations had not run against the cause of action. The Supreme Court speaking through Mr. Justice Farmer, uses this language: “In actions at law it is not in accordance with the rules of pleading for the plaintiff to anticipate and attempt to answer or avoid a possible defense that might be interposed by plea. He is only required to state his cause of complaint, and anything beyond this is surplusage. That a cause of action is barred by limitation, whether the limitation is by contract or by act of the legislature, is a defense which may or may not be interposed. Although it may appear on the face of the declaration that the cause of action is barred if that defense is interposed, yet at law, if it is not relied upon as a defense by pleading it specially, it can not be taken advantage of by the defendant, the plaintiff not being required to negative the defense in his declaration, as is the rule in chancery.” This case has been cited frequently by our Appellate Courts, and has been universally followed. It is our conclusion that it was not necessary or proper for the plaintiff, at the time he took the judgment, to state any facts negativing the running of the statute of limitations.

The power of attorney attached, was a part of the note sued upon, and authorizes any attorney of any court of record to appear for the maker of the note in any court of record in any State, or territory in the United States in term time or vacation, or at any time after date thereof, and waives service of process and to confess a judgment against him in favor of the legal holder of the note for the amount due etc., and agrees therein that no writ of error or appeal shall be prosecuted upon the judgment entered etc., and to release all errors that may intervene in the entering up of said judgment etc. It was held in the case of Bush v. Hanson, 70 Ill. 480, that where it appears from the judgment order that a declaration, warrant of attorney and affidavit of its execution, the note and cognovit by the attorney authorized, were filed, the defendant in the judgment was before the court by appearance by his duly authorized attorney, and a case of jurisdiction was then presented and was enough to set the court in motion to hear and determine the issues in the case. When the appellant filed his motion to open up the judgment, and for leave to plead, he did not limit his appearance for that purpose. A special appearance must be for the purpose of urging jurisdictional objection only, and must be confined to a denial of jurisdiction. An appearance for any other purpose than to question the jurisdiction of the court is general and waives jurisdictional objections. The rule is, that if a party wishes to question anything but the jurisdiction of the court in such a proceeding, he must limit his appearance for that purpose only. The appellant in filing his motion, not only questioned the jurisdiction of the court, but asked leave to plead to the merits of the case, and by so doing entered his appearance in the suit.

A warrant of attorney to confess judgment is of common law origin. The entry of a judgment by a cognovit thereunder, is a proceeding according to the course of the common law which courts have entertained in the ordinary exercise of their authority as courts of general jurisdiction, Bush v. Hanson, supra. (Chitty’s Blackstone (1827) Vol. 2, Page 313.) The fact that the statute has regulated the mode of procedure, does not convert the proceeding into a special statutory character so that the same presumptions do not obtain, as in the case of ordinary judgments of superior courts of general jurisdiction. Where a judgment is confessed in open court, the presumptions are in favor of the regularity of all of the proceedings. There is no such presumption in a judgment confessed before a clerk of the court. In the latter case all facts must appear in the record, but in the former it will be presumed to have been done. (Iglehart v. Chicago Marine & Fire Ins. Co., 35 Ill. 514, page 515.)

It is also insisted that the court erred in rendering judgment in the garnishment proceeding, because there was a variance in the names of the executor and executrix mentioned in the affidavit for garnishment, and the summons in the suit from the parties that the judgment was rendered against. In the affidavit and request for summons, the names were stated to be “Thomas Ewbank and Hannah Ewbank, Executor and Executrix of the Last Will and Testament of Levinus Ewbank, Deceased, whereas the judgment which was rendered was against Thomas Ewbank, Executor, and Hannah Book, Executrix etc.” In support of this contention, the appellant cites Kunde v. Prentice, 329 Ill. 82. In that case the affidavit and garnishment writ recited that August Kunde obtained a judgment against Prentice and that affiant believes that Mrs. John Lainbert was indebted to the defendant. An order of default was entered against Mrs. John Lambert in favor of Augusta Kunde. Mrs. John Lambert defaulted, and the court entered a judgment against her for the amount the court found she owed Augusta Kunde. Later Mrs. John Lambert filed a motion to vacate said judgment, and an affidavit in which she stated she did not owe Augusta Kunde anything, and set forth reasons why she did not contest the case at the- time of the hearing before the court. The court held that the variance in the names, if properly raised before the court, was fatal to the plaintiff’s case. It will be observed in the Kunde case that the judgment was against Mrs. John Lambert, and she was the one who was questioning the regularity of the garnishment proceeding. In the present case a summons was issued against Thomas Ewbank and Hannah Ewbank as executor and executrix of the last will and testament of Levinus Ewbank, deceased. Thomas Ewbank and Hannah Book, the executor and executrix of said estate, filed their answer in which they stated that they had funds in their hands which were due and owing to E. H. Ewbank, the appellant. The executor and executrix are not claiming anything in this litigation. The purpose of the summons in the garnishment proceeding was to have Thomas Ewbank and Hannah Book, the executor and executrix of the estate of Levinus Ewbank, deceased, come into court, and if they cared to waive the defect in the summons and file their answer, they were at perfect liberty to do so. At the time of the hearing the proper parties were before the court. The appellant does not contend that the executor and executrix are not holding property that properly should be paid to him. We think the court properly held that it had jurisdiction of the parties and the subject matter of the suit.

The appellant also contends that the garnishment act provides for the commencement of the garnishment proceeding only on the affidavit of the plaintiff, or some other credible person, and there is no showing in the present case that the man who made the affidavit for the garnishment proceeding is a credible person. In the case of Kunde v. Prentice, supra, this contention was also raised and decided adversely to the contention of the appellant. We find no merit in his contention.

It also claimed that there was no property subject to garnishment in the hands of the executor at the time the garnishment proceedings were instituted. The executor and executrix filed their answer, and stated that they had certain sums in their possession which belonged to the appellant, Ewbank. We find no merit in this contention because the executor and executrix when they filed their answer, stated that they did have money in their possession, which belonged to the appellant, Ewbank.

We find no reversible error in the case, and the judgment of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    Mae Fugett, Individually and as Administratrix of Estate of Leslie Fugett, Deceased, Appellee and Cross Appellant, v. Gerard Murray, Appellant.
    Gen. No. 9,659.

      Heard in this court at the February term, 1941.
    Opinion filed August 14, 1941.
    Krusemark & Krusemark, of Joliet, for appellant.
    Donovan, Bray & Gray, of Joliet, for appellee and cross appellant.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Leslie Fugett was killed and his wife, Mae Fugett, injured when the motorcycle on which they were riding, on State Highway No. 45, collided with a horse which was loose on a highway, belonging to Gerard Murray, the defendant. Suit was brought against the defendant, Gerard Murray, by Mae Fugett as administratrix of the estate of Leslie Fugett under the Injuries Act, and by Mae Fugett, individually, for damages for personal injuries sustained by her.

In count one of the complaint the administratrix seeks damages for the death of her intestate and in count two, Mae Fugett, individually, asks for damages for personal injuries to herself. The charges of negligence in the two counts are identical. A jury trial resulted in a verdict finding the defendant not guilty under count one, but guilty under count two and awarded Mae Fugett damages of $2,500. Motions for a new trial made by the defendant and by the administratrix were overruled. Judgment was entered that the administratrix take nothing by virtue of the trial. Judgment was entered for Mae Fugett for $2,500. The defendant has appealed from the judgment against him, and the administratrix prosecutes a cross-appeal from the judgment that she take nothing as a result of the trial.

Several charges of negligence in the complaint predicate the action on section one of the Animal Act (sec. 1, ch. 8, Smith-Hurd’s Annotated Statutes [Jones Ill. Stats. Ann. 5.001]) which is as follows: “Hereafter, it shall be unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine or geese, to run at large in the State of Illinois: Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.” The suit was tried on the theory that a duty rested on the defendant to show he used reasonable care to prevent the horse from being on the highway. The liability of the defendant for the horse being loose on the highway, depends upon the construction of the above section of the statute.

The proviso in the statute was added in 1931. As a consequence of the enactment of section one as it now stands, without the proviso, the law of the State of Illinois required the owner or keeper of stock, named in the statute to keep them from running at large on the public highways. The owner or keeper was liable in a civil action for damages resulting from his stock being loose on the highway even though he did not know the stock was so at large. It was not necessary for the plaintiff in such an action to allege that the owner or keeper negligently and unlawfully permitted his stock to be at large on the public highway. (Farrell v. Crawford, 222 Ill. App. 499.) Every animal of the species named in the statute is running at large unlawfully if it is on the public highway unattended, unrestrained and uncontrolled. (Farrell v. Crawford, supra; Bulpit v. Matthews, 145 Ill. 345; Morgan v. People, 103 Ill. App. 257; Donaghue v. Fraikin, 200 Ill. App. 339.) It is our opinion that the proviso was passed by the legislature to relieve the owner of stock of the harshness of the law, as declared in the Farrell case. Under the proviso the owner or keeper of stock may show in a civil action against him for injury caused to a person or property resulting from his stock running at large on the highway, that without his knowledge the stock was so at large, and that he used reasonable care to restrain the stock from being at large.

In the case here the plaintiffs introduced evidence proving that the horse belonged to the defendant, that he had charge of it, and that it was at large on the highway; also, evidence tending to prove that the plaintiffs were in the exercise of reasonable care for their own safety, and that the horse running at large on the highway was the proximate cause of the accident. The plaintiffs then rested their case in chief.

The general rule is that where an accident occurs as a result of the violation of the statute making it unlawful for stock to run at large on the highway, there is a presumption of negligence on the part of the owner and keeper of the stock, which is sufficient to carry the case to the jury. (45 A. L. R. 507 and cases there cited.) The defendant claims the benefit of the proviso. The proof to be established under the proviso was within the knowledge of the defendant and not the plaintiffs. The burden of evidence, after the plaintiffs rested their case in chief, was on the defendant.

On the evening of Saturday, June 17, 1939, Leslie Fugett and Mae Fugett, his wife, left Joliet for Kankakee riding on a motorcycle. Leslie Fugett was operating the motorcycle and Mae Fugett was riding on a seat directly behind her husband, and sitting very close to his back, sometimes with her hands in the pockets of the jacket her husband was wearing. After leaving Joliet they rode on State highway 44 which extends in a southwesterly direction until it joins highway 45. From the junction of the two high- . ways, highway 45 ran south toward Kanakakee. There was a stop sign at the junction of the highways. Leslie Fugett stopped his motorcycle at the stop sign, then turned it to the right and drove the motorcycle south on highway 45, for approximately two miles. It was about 8:15 o’clock p.m., C.S.T. when the motorcycle collided with the horse of the defendant, which was running at large on highway 45.

It is contended by the appellant that the verdict awarding $2,500 to Mae Fugett, individually, is against the manifest weight of the evidence. The accident occurred near the corral on the defendant’s farm, which is on the west side of the highway No. 45. The pasture on defendant’s farm was north of the corral. The corral, pasture and field are connected by a series of lanes and gates, as described minutely by the various witnesses. The defendant and his witnesses testified that about seven p.m. on the evening of the accident, he together with his sons, placed the horse which was involved in the accident, in a pasture with three other horses; that the fences around his place were substantial and in a good state of repair, and that he had no knowledge that the horse was out of his pasture on the road, until after the accident had occurred. In respect to the location of the pasture, fields and lanes etc., and the state of repair of the fences, the defendant was corroborated by other witnesses. He was also corroborated by other witnesses that he placed the horse in question, in the pasture with the other horses at the time he states.

In rebuttal, Robert Lee Fugett, a brother of the deceased, testified that shortly after the accident, he and a man by the name of Emerson who represented a Furnace Company, had a conference with the defendant on his farm; that they went to the home of the defendant for the purpose of getting information with reference to the accident; that during their talk the defendant told about the death of the horse, and he was asked how the horse got out onto the highway; that the defendant stated he did not know how the horse got out, unless while putting the horses through the corral into the pasture, that one of them went around the gate instead of through it. The defendant denied having such conversation with these men. Robert Lee Fugett further testified that, as he left the farm, he noticed the defendant’s fence was down along highway 45 and north from the Peotone road; that in the fence there were broken wires; that some of the posts were good, and some were not good; that he returned to the place the next day, and took photographs of the fence, that on that day the fence had been repaired. The photographs were introduced in evidence for the purpose of tending to show that there had been repairs recently made on the fence. The defendant denied that there had been any repairs made on the fence. It is the contention of the plaintiff that the jury were warranted by the evidence in arriving at the conclusion that the horse was not placed in the pasture on the evening of June 17, as contended by the plaintiff. It was a question of fact for the jury to determine whether the evidence introduced by the defendant was sufficient to overcome the prima facie case made by the plaintiffs, and their rebuttal evidence. The credibility of the witnesses and the weight to be given to their testimony were questions to be determined by the jury. There is no evidence in the record tending to prove that the horse escaped from the pasture which was inclosed by a good fence. If the jury believed that the horse was not placed in the pasture on the evening of June 17, we cannot say that such a belief was unwarranted through the facts and circumstances appearing in evidence. The gate between the corral and the 40 acres of oats may have been open between the time the horse was taken from the barn and the time of the accident. There was also evidence that gates lead from the corral into the grounds surrounding the house on the farm. These grounds apparently opened on the 40 acres of oats. There was no testimony of fence being between the house and the 40 acres of oats. The inferences to be drawn from the evidence was a matter for the jury, and we cannot say that the minds of reasonable men would agree that the inference could not be drawn from the evidence that the horse went into the 40 acres of oats and from there onto the highway. There is a conflict in the evidence whether the fence along the east side of the oats field was broken after the accident. It was the peculiar province of the jury to determine the preponderance and credibility of the evidence. When this court is asked to set aside a verdict, the prevailing party is entitled to all the favorable inferences legitimately arising from the evidence. (Dick v. Zimmerman, 105 Ill. App. 615; Avey v. Medaris, 272 Ill. App. 207.)

As part of their case in chief, the plaintiffs proved by the witness, Murphy, that the motorcycle of Leslie Fugett was equipped with a speedometer having two hands. One hand indicated the rate of speed according to the movement of the motorcycle. The other hand, known as the stop hand, registered the maximum speed, at which point it remained stationary until it was released by a button, when it returned to the zero mark on the speedometer; that after the motorcycle was stopped, the stop hand would register the highest rate of speed of the motorcycle, at any time during the trip, after the stop hand had been returned to the zero mark.

Robert Lee Fugett, as a witness for plaintiffs testified that after the accident, he rode the motorcycle which was in the accident to Joliet, and that the speedometer was operating properly, and that the stop hand registered a rate of speed of 45 miles per hour when he took charge of the motorcycle that night. The plaintiff tried to prove by this witness that he was experienced in driving motorcycles equipped with speedometers as above described. The witness was asked if the rate of speed shown by a stop hand is affected when a motorcycle is thrown while being driven, and the wheels thus freed of friction. This question, upon objection of the defendant, was excluded. It is claimed by the plaintiff that the trial court erred in excluding the answer. The questions and answers of the witness on this point do not appear in the abstract of trial proceedings; neither does it appear in the record, nor what the answer to the question would have been. It does not appear in the case that the exclusion of the testimony was prejudicial error. (Curtis v. Baugh, 90 Ill. 184; 4 C. J. 74).

It is claimed by all parties to this suit that the court erred in giving and refusing instructions. All of the given instructions are not included in the abstract of record. Only part of the instructions given on behalf of the plaintiffs are in the abstract. None of the given instructions on behalf of the defendant appear in the abstract, but are simply referred to by number. In the case of Govekar v. Kweder., 296 Ill. App. 402, only one of the given instructions appeared in the abstract. In discussing the case, we use this language: “It has long been the established rule that errors assigned with reference to the giving or refusing of instructions, whether upon the part of the plaintiff or the defendant, will not be reviewed in a court of appeal, unless all the instructions are fully set out in the abstract.” Madison v. Wedron Silica Co., 352 Ill. 60; People v. Heywood, 321 Ill. 380. There is another reason why this court will not consider the argument of appellant that the court erred in giving instructions on behalf of the plaintiff. The instructions complained of are .referred to by number instead of setting out the objectionable instruction in the brief and argument. This is not in compliance with the rules of court. In the case of Jones v. Keilbach, 309 Ill. App. 233, we find this language: “Complaint is also made that there was error in the giving of some of the instructions for the appellee, and in modifying some of the instructions given for the appellant, but the instructions are not set out in the brief and argument, but merely referred to by designated numbers. The questions involved are therefore not properly before us for consideration.”

It is contended by the defendant that the verdict awarding Mae Fugett $2,500 is excessive. She testified that she was confined to her bed in a hospital for a week, and was then brought home in an ambulance; that her body was scratched and black and blue, “and I was hurt all through here (indicating) ”; that she had concussion and hemorrhage of the eyes; that she was shocked and could not keep her body still; that she remained in- bed at home for a week when she attempted to resume household work, but was unable to do so; that she then lived with her brother until fall; that she started to work in January; that in July she received a license as a beauty operator and that for about two weeks she has been operating her own shop; that she is very nervous and has pain in her right temple as a result of the shock received in the accident; that she was not able to state if the nervousness and pain interfered with her work, but that she lost eight pounds in weight the first week after she opened her shop; that her expenses for medical and hospital treatment totaled $114.

As we stated in the case of Bolle v. Chicago & N. W. Ry. Co., 258 Ill. App. 545: “In this character of cases the damages are for the determination of the jury, and unless we are able to say that the verdict is so excessive as to indicate that the jury were moved by prejudice or passion, we would not be warranted in reversing the judgment on the ground that the verdict is excessive.” We do not think in this case that the verdict is so excessive that it shows prejudice or passion on the part of the jury.

It is also contended by the defendant that the plaintiff, Mae Fugett, did not prove that she was in the exercise of due care for her own personal safety. The evidence shows that Mae Fugett was a passenger on the motorcycle at the time of the accident, and the negligence if any, of her husband, who was operating it, cannot be imputed to her. (Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38.) The general rule is that negligence and contributory negligence are questions of fact for the jury, and so long as the question remains whether either party has observed that degree of care and caution imposed upon bim by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as a question of fact to the jury. (Chicago, St. L. & P. R. Co. v. Hutchinson, 120 Ill. 587.) To authorize this court to say that the plaintiff, Mae Fugett, was not in the exercise of due care for her own safety, we must be able to say, that all reasonable and unbiased men, acting within the limits prescribed by the rules of law, would agree that she was not, at and for a reasonable time prior to the injuries sustained by her, in the exercise of due care and caution for her own safety, and that as a result thereof, she contributed to the injuries received by her. Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312. In an examination of the case she is entitled to the benefit of all the facts that the evidence tends to prove, and all just inferences that can be drawn therefrom, and the evidence most favorable to her must be taken as true, in determining if she was guilty of contributory negligence as a matter of law. (Pollard v. Broadway Cent. Hotel Cory., supra.)

There is evidence in the record that at the place of the accident the road ditches were about six feet deep; that the shoulder of the highway was about eight feet wide, and that there were weeds about five feet high against the fence. The impact of the collision broke both front legs of the horse, and it was found in the southbound lane of the highway. Whether or not Mae Fugett exercised due care for her own safety, was a question of fact for the jury. For some unexplained reason the horse was at large on the highway, and it was a question of fact for the jury to determine if a reasonably prudent person, under the same or similar circumstances, would have seen or anticipated that the horse was loose on the highway, in time for Mae Fugett to take some action to avoid personal injury.

The contention of the parties involves the question of the speed of the motorcycle at the time of the accident. The evidence on this phase of the case is in conflict, and when that is true in an action ex delicto this court will not set aside the verdict, reverse the judgment and remand the case for a new trial, unless it clearly appears that the verdict is manifestly against the weight of the evidence, and only under circumstances where the interests of justice demand it. (Corcoran v. City of Chicago, 373 Ill. 567.) As before stated, Mae Fugett testified the motorcycle was being driven at the time of the accident between 40 and 45 miles an hour. About 100 to 150 yards south of the junction of highways 44 and 45, the motorcycle passed the witness, Foster, who was driving his automobile south on highway 45. Approximately two miles south of the junction the motorcycle collided with thé horse. Foster testified that he was traveling between 35 and 40 miles an hour, and that the motorcycle was moving at a rate of speed of 10 miles faster than he was. Foster also testified that the stop hand of the speedometer on the motorcycle indicated between 70 and 75 miles an hour; the witness, Charles Smith, testified that the stop hand registered a speed of between 60 and 70 miles an hour. As before stated, Robert Lee Fugett testified that the stop hand indicated a speed of 45 miles per hour. The witness, Murphy, testified that when a motorcycle is thrown down, it loses traction, and the wheel connected with the speedometer is then running free, and it “kicks up,” the speed until the power is shut off by using the throttle. Under the circumstances appearing in evidence, we are of the opinion that the speed of the motorcycle at the time of the accident, was a question for the jury to solve.

It is contended by the administratrix that the court erred in excluding testimony that Leslie Fugett was a man of careful habits and prudence. It appears from the written argument on behalf of the administratrix that she was offered as a witness on her own behalf to testify as to habits of care and prudence of her deceased husband. An examination of the record discloses that while Mae Fugett was a witness in chief, she was offered as a witness to prove habits of care of of her intestate. The matter was argued before the court, in the absence of the jury. No further question on this phase of proof was asked of this .witness, and no ruling obtained as to the admissibility of this testimony. There was no ruling from the court upon which to predicate error. (Chicago City Ry. Co. v. Carroll, 206 Ill. 318; Ritholz v. Andert, 303 Ill. App. 61.)

Mae Fugett as administratrix of the estate of Leslie Fugett, deceased, assigned seven reasons on her cross-appeal wherein the court erred, and that the judgment should be reversed. In the brief only three of these assignments are argued, namely, the court erred in giving improper instructions on behalf of the defendant, and the court erred in refusing to permit the witnesses to testify, as to the careful habits of the deceased, and the court’s refusal to let Robert Lee Fugett testify as to his knowledge of the operation of the motorcycle. Questions assigned as error, and not argued, are waived in this court. We have heretofore stated the reasons why the argued questions cannot be considered by us.

We find no reversible error in the case, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Dove

text:
    Mary Fraser, Appellee, v. Algernon Glass et al., Appellants.
    Gen. No. 9,686.

      Heard in this court at the May term, 1941.
    Opinion filed August 14, 1941.
    Burke & Schenk, of Joliet, for appellants.
    Barr & Barr, of Joliet, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Will county setting aside a release, and an endorsement on a draft, signed by appellee, Mary Fraser, in settlement of all claims and rights of action against Algernon Glass on account of personal injuries in an automobile accident, on the ground of mistake of fact as to the nature and extent of the injuries. The cause was heard by the chancellor on the first count of the complaint only. The second count, for damages on account of the injuries appellee alleged she sustained, has not been tried and is not involved on this appeal.

From the pleadings and evidence, it appears that appellee was injured in an automobile accident on Saturday, November 24, 1934, while riding” in a car driven by her husband. There was a collision between it and a car driven by Algernon Glass (referred to in the record as Al Glass) who was insured in the Inter-Insurance Exchange of the Chicago Motor Club. Her injuries consisted of bruises about the lower extremities, scratches on the leg, a large bruise on the right hip, and a cut to the bone on the knee about an inch and a half long, requiring sutures. Whether Dr. Williams, who treated appellee for her injuries, was called by the implied authority of Glass is in dispute, but we regard that question as not being determinative of any issue presented. The complaint charges misrepresentation of appellants, or mutual mistake, as to the extent of her injuries. The proofs show a mutual mistake.

Two days after the accident a claim adjuster of the Inter-Insurance Exchange called at the Fraser home to determine its liability and the feasibility of a settlement, but nothing was accomplished. He testified that Mr. and Mrs. Fraser said they would not be ready to settle until near the end of the week. On the following Friday, six days after the accident, a Mr. Glenn (since deceased), another adjuster for the Inter-Insurance Exchange, called at the Fraser home. Appellee and her husband testified he said he had a lot of business and was in a hurry. Mr. Fraser told him his car repairs would cost $102. At Glenn’s suggestion, Fraser called Dr. Williams by telephone, and they both talked with the doctor about the extent of appellee’s injuries and the amount of his bill. Appellee’s leg began to swell immediately after the accident and gradually grew worse. At the time the release was signed, the cut on the knee had not healed, and appellee was experiencing pain. The leg was swollen to the ankle. In walking around the house she used a rope looped around her foot and held in her hand to prevent pulling on the cut. She had to be helped up and down stairs. Dr. Williams had treated her four or five times, and on or before the time of the settlement, told her her disabilities would be of a minor character. Dr. Williams testified that the adjuster informed him in the telephone conversation of the pending settlement and that they would like to know the amount of his bill. Dr. Williams told Fraser his wife was getting along all right; that he expected she would be around in a few days, and he did not think he would have to call again. Glenn then talked with the doctor, and thereafter told appellee and her husband the injuries would be superficial and would not trouble her very much, indicating he got the information from the doctor. The doctor fixed his fees at $15. A settlement of $150 was then agreed upon. Appellee and her husband testified it was agreed that $102 was allocated for car repairs; $15 for doctor bill, and $33 to appellee for loss of time from her business of soliciting hosiery orders. Their testimony is not controverted. They signed a general release and discharge of Glass from all claims and rights of action which they ever or then had against him, and specifically on account of the automobile accident. Glenn gave them a draft for $150 on the Inter-Insurance Exchange, payable to them jointly. The draft was cashed the next day, and bears their endorsement in full settlement of all claims and rights of action against Glass growing out of the automobile accident. Appellant and her husband both testified they relied upon the statements of Dr. Williams, and of Glenn as to what the doctor told him, and that if the doctor had not said her' injuries were slight and would readily heal, she would not have signed the release.

After the settlement appellee’s condition became worse. On the following Tuesday, Dr. Williams was again called, and came two or three times after that. An infrared light was used two or three times each day. Appellee’s condition continued to grow worse and Dr. Shreffler was called about the latter part of December or the first part of January. The knee cut had healed, but he found an extensive blood clot in the superficial vein of the right leg, which was quite swollen. The clot could be easily felt along the vein. The treatment prescribed was the elevation of the leg and ice packs along the area involved. This was continued about ten weeks, during which time appellee remained in bed. Dr. Shreffler testified the presence of an infection accounted for the clot; that the symptoms are the presence of the clot itself and the swelling of the leg he found at that time; that the clot or swelling could cause pain and suffering. Appellee testified there was another clot in her other leg and Dr. Shreffler testified it came from the accident. Dr. Williams testified he was honestly mistaken in his judgment as to the extent of her injuries on the date of the settlement, and corroborated appellee’s testimony that after the settlement he told her he had made a mistake in her case. He also testified he later learned she had developed a blood clot.

The claims of appellants are, that a court of equity will set aside a release only for a mistake of a past or present existing fact; that there is no showing that the blood clots were present when the settlement was made; that the clots developed later and that the mistake of fact was as to such subsequent results from the injuries; that it is not enough that appellee was mistaken as to an opinion or judgment of the doctor; that she was in a better position to know the facts than appellants, could have consulted another doctor, and by her neglect in that respect, in the absence of fraud by appellant, she assumed the risk and cannot maintain the action; that she was guilty of laches in bringing the suit, made no prior tender of the full amount of the settlement, and failed to prove her case by clear and convincing evidence.

Appellants cite and rely upon several cases from other jurisdictions holding that a mistake as to future developments from an injury is not sufficient to set aside a settlement agreement. Appellee agrees with those holdings, but claims, and we agree with her, that this is not a suit based upon a mistake of that kind. Neither is it a suit to set aside the release because blood clots developed, but it is definitely based upon a mistake in appellee’s physical condition at the time of the settlement from infection then present, and that her condition was then more serious than she or Dr. Williams knew.

Appellee testified she noticed the swelling and infection from the time she was injured, and Dr. Williams testified he administered standard antiseptics. Dr. Shreffler testified the infection accounted for the blood clots. They were, therefore, results or incidents of the infection. It cannot be doubted the infection was present when the settlement was made, as shown by the swelling and pain, the unhealed cut, and the testimony of Dr. Williams and Dr. Shreffler. The latter testified the clot or swelling could cause pain and suffering. There is no showing, and it is not claimed there was any condition other than the infection that would account for the swelling and pain.

It is to be noticed that in addition to the testimony as to the telephone conversations with Mr. Fraser and Mr. Glenn, Dr. Williams testified he also told appellee on or before the settlement that her disabilities would be of a minor character. In Scheer v. Rockne Motors Corp., 68 F. (2d) 942, the court said: “There is indeed no absolute line to be drawn between mistakes as to future, and as to present facts. To tell a layman who has been injured that he will be about again in a short time is to do more than prophesy about his recovery. No doubt it is a forecast, but it is ordinarily more than a forecast; it is an assurance as to his present condition, and so understood.”

It has been held that the statement that the releasor “would be all right within thirty days,” Atchison, T. & S. F. R. Co. v. Peterson, 34 Ariz. 292, 271 Pac. 406, and the statement that the releasor was “pretty well along toward being cured,” Granger v. Chicago, M. & St. P. R. Co., 194 Wis. 51, 215 N. W. 576, were statements of a past or present fact. Under the facts shown in this record the mistake was clearly as to an existing fact, i.e., appellee’s condition at the time of the settlement. The mistake was not as to whethér blood clots would develop, but was as to the seriousness of the infection then present. Appellee relied upon the statements of the doctor, and there is nothing to indicate she was not justified in so doing, or was negligent in not calling another doctor less than a week after the accident. She was in no better position to know the pathology connected with her condition than appellants. It is not enough to prevent relief in case of mutual mistake that the party might, had he done all within his power, have ascertained the truth but only reasonable diligence is required. (Winkelman v. Erwin, 333 Ill. 636; Hoops v. Fitzgerald, 204 Id. 325; Barker v. Fitzgerald, 105 Ill. App. 536.)

A court of equity may grant cancellation where the party requesting it has entered into a contract without negligence, through a material mistake of fact, when it can do so without injustice to the other party. The fact concerning which the mistake was made must be" material to the transaction and effect its substance, and must not result from the want of such care and diligence as would be exercised by persons of reasonable prudence under the same circumstances, and to warrant cancellation the evidence must be clear and positive. (Smuk v. Hryniewiecki, 369 Ill. 546, and cases there cited.) The rule puts the burden upon the person seeking cancellation to show the mistake by clear and positive evidence, but no more than that is required. (Winkelman v. Erwin, supra; Munnis v. Northern Hotel Co., 237 Ill. App. 50.)

The mutual mistake in the instant case is not only proved by clear and convincing evidence, but it is not questioned by appellants except by the untenable assertion that it was a mistake as to the future. As the suit is based upon a mistake as to appellee’s condition at the time the settlement was made, and not upon whether blood clots were then present, it makes no difference whether they were then present, either in an initial or an advanced stage.

The annotations in 48 A. L. R. 1462, and 117 A. L. R. 1022 lay down the doctrine that “It is well settled in the United States, according to the great weight of authority, that a general rélease for personal injuries may, under proper circumstances, be avoided on the ground of mutual mistake as to the nature and seriousness of the injury.” In support of the statement a large number of cases are cited, which need not be repeated here. In some of them the courts hold that inadequacy of consideration (as here) is one of the conditions tending to the conclusion the release was not binding because of mistake. “Proper circumstances” mentioned in the rule includes cases where a release can be set aside without injustice to the other party. (Smuk v. Hryniewiecki, supra; Munnis v. Northern Hotel Co., supra.) In the latter case cancellation of a release was awarded where the plaintiff and the doctor were mistaken as to the nature and extent of the injuries, and the mistake was mutual between the parties. It was there said: “But whether it was mutual or unilateral, the complainant is entitled to have the release rescinded because of the.material mistake of fact. 21 Corpus Juris, pp. 87, 88. The evidence does not show that any injustice will be done to the defendants by the rescission of the release. The conclusions we have expressed are amply supported by adjudicated cases in which the facts are similar to the facts in the case at bar.” (Citing cases.) Earlier in the opinion it is said: “We are of the opinion that the evidence in the case at bar clearly and convincingly shows that the complainant is entitled to have the release rescinded on the ground of an existing material mistake of fact as to the nature and extent of the actual injuries of the complainant; and that the complainant is entitled to that relief independently of the question whether the release was obtained by inequitable and unconscionable methods, and even though it should be assumed that he was in a normal state of mind' and fully capable of dealing on equal terms with the defendants.” This, in our opinion, is a correct statement of the law, and is in accord with the majority rule set out in the A. L. R. annotations above cited. Cases from other jurisdictions, not in harmony with the majority rule, relied upon by appellants, are not persuasive.

Appellants contend that under Beebe v. Swartwout, 8 Ill. 162, even though the evidence clearly shows a mistake of facts, a release executed in the absence of fraud or false representations on the part of the releasee will not be set aside. In that case Swartwout deeded Beebe some land with a covenant of quiet enjoyment, taking back a mortgage for part of the purchase price. Upon foreclosure, Beebe sought to rescind the transaction on the ground that the title was defective and others were in possession of portions of the premises. Such persons did not have a paramount title, and the court held their possession was not a breach of the covenant for quiet enjoyment. Beebe’s counsel sought to invoke the doctrine of mistake on the ground that he mistakenly paid money for nothing, and fraud, on the ground that Swartwout knew others were in possession and fraudulently represented he had good title. The court held that neither fraud nor mistake was present and denied rescission. In the course of the opinion, the court said: “There is a distinction between contracts of an executory character and those which are fully executed by deeds or conveyances. In the latter case, there can be no rescission of the contract, unless it has been tainted by actual fraud. ’ ’ The doctrine there enunciated has never been subsequently approved or cited by any of the courts of review of this State, but in the later cases of Schaefer v. Henze, 337 Ill. 41 and Winkelman v. Erwin, supra, executed conveyances were set aside on the sole ground of mistake. As demonstrated by those cases, the manifest policy of the Supreme Court makes no distinction between executed and executory contracts as a basis for relief, but relief is based upon whether the setting aside of a release for mistake of fact can be done without injustice to the other party. (Smuk v. Hryniewiecki, supra.) The logic of this basis as compared with a holding depending upon whether a contract is executed or executory, is obvious. In our opinion, the Supreme Court no longer adheres to the language quoted from the Beebe case, and it is not controlling here. The holdings in this State are in harmony with the general rule of the majority of other jurisdictions as pointed out in the annotations in A. L. R. above mentioned, and in the instant case, it is obvious that the release can be set aside without injustice to appellants.

The claim that appellee was guilty of laches in bringing the suit was not raised in the court below and will not be considered on appeal. Before bringing suit appellee tendered the $33 received by her to the Chicago Motor Club, one of the defendants. It was afterward kept good by a deposit of the amount in court for the benefit of all the defendants. No case is cited and we know of no authority which holds that she would be required to tender back the money allocated in the settlement to her husband and the doctor. No question as to the sufficiency of the tender was raised below and it is now too late to do so.

In our opinion, the decree is sustained by the law and the evidence and there is no merit in appellants’ several motions for a new trial, for a rehearing and in arrest of judgment and the chancellor did not err in its rulings upon these motions nor can it be said that cashing the draft, on the day after the settlement, under the conditions shown by the testimony, was a ratification of the settlement. The decree mil be affirmed.

Decree affirmed.


author: Mr. Justice Huffman

text:
    Mary V. Paulissen, Appellee, v. Franklyn A. Jonas, Appellant.
    Gen. No. 9,674.

      Heard in this court at the May term, 1941.
    Opinion filed August 14, 1941.
    Gower, Gray & Gower, of Kankakee, for appellant.
    DeSelm & Schneider and Richard A. Schneider, both of Kankakee, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an appeal by the defendant below from an order of the circuit court granting a new trial on motion of plaintiff below.

Appellant operated a retail grocery and meat store in the city of Kankakee. Appellee is 78 years old. She states that she had been a customer at this store for a number of years, trading there when appellant’s father operated it, before him. On the day in question, plaintiff fell upon the floor of the store, sustaining a broken hip. Trial resulted in a verdict for the defendant, appellant herein. Plaintiff filed her motion for new trial, which was granted. Leave to appeal from such order was granted appellant by this court.

The trial court assigned its reason in writing for granting new trial, same being based upon instruction given on behalf of the defendant below. The instruction reads as follows:

“The Court instructs the jury that before the plaintiff can recover, the burden is upon her to prove each and all of the following propositions by a preponderance or greater weight of the evidence:
“(1) That plaintiff immediately prior to and at the time of the accident in question was in the exercise of ordinary care for her own safety and was not guilty of any negligence which in any way contributed to her injury.
“(2) That the defendant or his agent or agents were guilty of negligence as charged.
“ (3) That such negligence was the proximate cause of plaintiff’s injury.
“And if after considering all of the evidence in the case you believe therefrom that the plaintiff has failed to prove each and every one of the foregoing propositions by a preponderance or greater weight of the evidence, or that she has failed to prove any one of said propositions, then she cannot recover and you should find the defendant not guilty.”

The reason assigned by the court for new trial is as follows: •

“In this case this motion for a new trial is allowed under the first objection which is to the second instruction which seems to assume that an accident occurred, which is what was to be proved, and had the instruction stated ‘accident if any’, it would have been good. I do not however believe that the other objections are well taken, but this allowance of the 1st objection gives the plaintiff a new trial, so that it is not necessary to dwell at length upon the other objections.”

Appellee contends the above instruction erroneous because it misled the jury in assuming that the injury was the result of, or due to, an accident, urging in this respect that, if the occurrence was an accident, there was no negligence, and if it was the result of negligence, it was no accident. In support of this position, appellee cites: Travelers’ Ins. Co. v. Ayers, 217 Ill. 390; Fidelity & Casualty Co. v. Morrison, 129 Ill. App. 360, and Hutton v. States Accident Ins. Co., 186 Ill. App. 499. These were insurance cases and had to do with the question whether the assured’s injuries arose by accidental means or causes. At page 392 of Travelers’ Ins. Co. v. Ayers, supra, we find the following language: “An accident is the happening of an event without the aid and the design of the person, and which is unforeseen.” In the other cases cited by appellee on this point, the word “accident” is defined in a similar manner as in Travelers’ Ins. Co. v. Ayers, supra.

Accident, in its popular and ordinary sense, may be used to signify an event or occurrence which happened unexpectedly, and without design or intent. It may result from human agencies alone, from the uncontrollable operations of nature, or from both such agencies. Dreyer v. People, 188 Ill. 40, 51. In a legal sense, the word is difficult to define, yet in its general and popular sense, no one misunderstands it. It is a word which has been the subject of an indefinite variety of definitions (Bystrom Bros. v. Jacobson, 162 Wis. 180, 155 N. W. 919, 920, L. R. A. 1916 D, 966, 967; Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, 642, L. R. A. 1916 A, 273) although the essential thought represented thereby is one of the most common and general character. With reference to this word, it has been said that, “No legal definition has been given, or can be given, which is both exact and comprehensive as applied to all circumstances.” Peru Plow & Wheel Co. v. Industrial Commission, 311 Ill. 216, 220, 142 N. E. 546.

The word is commonly employed as denoting an undesirable or unfortunate happening, or an unexpected personal injury resulting from any unlooked for mishap or occurrence. Ervin v. Industrial Commission, 364 Ill. 56, 60; Arquin v. Industrial Commission, 349 Ill. 220, 181 N. E. 613, 614; Peru Plow & Wheel Co. v. Industrial Commission, supra; Patrick v. J. B. Ham Co., 119 Me. 510, 111 Atl; 912, 13 A. L. R 427, 432; Chapin v. Ocean Accident & Guarantee Corp., 96 Neb. 213, 147 N. W. 465, 52 L. R. A. (N. S.) 227. And the word in its more general sense does not exclude human fault, termed as negligence (Watson v. Publix Rivera Theatre, 255 Mich. 115, 237 N. W. 541; Yellow Cab Co. v. Industrial Commission, 210 Wis. 460, 246 N. W. 689, 690) but is recognized as an occurrence arising from the carelessness of men, and the fact that the negligence of the person injured contributed to produce the result will not make it any less an accident. Standard Oil Co. of New Jersey v. United States, 264 Fed. 66, 69; Watson v. Publix Rivera Theatre, supra; Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S. W. (2d) 707, 713, 65 A. L. R. 129; Wiger v. Mutual Life Ins. Co. of New York, 205 Wis. 95, 236 N. W. 534, 538.

In an attempt to distinguish between accident as embodying the element of negligence from other unintended or unexpected events, the terms, “mere accident,” “pure accident,” or “unavoidable accident,” are often used when it is desired to repel the idea of negligence.

As stated in the case of Ullman v. Chicago & N. W. Ry. Co., 112 Wis. 150, 88 N. W. 41, 56 L. R. A. 246, 88 Am. St. Rep. 949, at page 958 thereof: “The poverty of language compels the use of words in different meanings, and this is notably true of the word ‘accident.’ Strictly speaking, an accident is an occurrence to which human fault does not contribute; but this is a restricted meaning, for accidents are recognized as occurrences arising from the carelessness of men.” To the same effect are the cases of Nelson v. Richardson, 108 Ill. App. 121, 126; Jassas v. Bankers Ins. Corp., 209 Ill. App. 147, 150.

An analogous instruction appears in the case of Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267, 277, which is substantially in the form used by the defendant herein, and in which instruction the word “accident” was used in the same connection as in this case.

A word used in an instruction, when taken by itself, might admit of more than one meaning, but when read with the entire instruction, there remains no reasonable doubt as to the purport of such word, and the sense in which it was used and understood. We are inclined to consider that the word “accident” as used in the instruction in this case, should be construed in the ordinary and usual understanding of its signification, and intended and understood to be such an occurrence or mishap as resulted in injury to plaintiff without any design or intention on the part of said plaintiff.

We do not consider the jury was in any way misled by the use of the word “accident” in the instruction complained of, or that the rights of the plaintiff were in any way prejudiced thereby.

The court by his written remarks clearly indicates that he was satisfied with the verdict in respect to the other objections contained in the motion for new trial. Therefore, the judgment is reversed and the cause remanded to the trial court with directions to overrule the motion for a new trial and render judgment on the verdict.

Reversed and remanded with directions.


author: Opinion by Justice Huffman.

text:
    Maurice Darner, Administrator of Estate of Dessie E. Darner, Deceased, and Edna Darner, Appellees, v. Nate Colby and Johnson Oil Refining Company (Johnson Oil Refining Company, Appellant).
    Gen. No. 9,528.
    Heard in this court at February term, 1940;
    opinion filed August 14, 1941.
    Hadley & Leren, for appellant Johnson Oil Refining Co.; Charles W. Hadley, of counsel; Alschuler, Putnam, Johnson & Ruddy and Sears, O’Brien & Streit, for appellees; Edward F. Streit, of counsel.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    Lucie Grise Palardis, Appellant, v. Eben B. Gower, Appellee.
    Gen. No. 9,666.
    Dove, J., dissents.
    Heard in this court at May term, 1941;
    opinion filed August 14, 1941.
    Eva L. Minor, for appellant; Donald Gray and W. H. Dyer, for appellee.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    Rollin Volkers and Mernice Volkers, Minor by Rollin Volkers, His Next Friend, Appellees, v. Charles H. Volkers et al., Appellants.
    Gen. No. 9,671.
    Dove, J., dissents.
    Heard in this court at May term, 1941;
    opinion filed August 14, 1941.
    A. J. Clarity, Philip L. Keister and Manus & Manus, for appellants; L. A. Jayne, for appellees.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    Nina O. Robertson, Appellant, v. Farmers State Bank of Danforth and Willis M. Robertson, Appellees.
    Gen. No. 9,680.
    Heard in this court at May term, 1941;
    opinion filed August 14, 1941.
    Milo J. Fleming, for appellant; A. Fred Kendall, for certain appellee; Pallissard & Smith, for certain other appellee.
   Opinion by Justice Huffman.

“Not to be published in full.” .


author: Mr. Presiding Justice Friend

text:
    Robert A. Helton, Administrator of Estate of Walter J. Probert, Deceased, Appellee, v. Charles M. Thomson, Trustee of Chicago and Northwestern Railway Company (Substituted Here for Charles P. Megan, Trustee, and Chicago and Northwestern Railway Company, Original Appellants), Appellant.
    Gen. No. 40,948.
    Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed July 1, 1941.
    Rehearing denied September 17, 1941.

      Nelson J. Wilcox and I. C. Belden, both of Chicago, for appellant.
    H. A. Barnhardt, of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Robert A. Helton, administrator of the estate of Walter J. Probert, deceased, brought suit under the Federal Employers’ Liability Act to recover damages for the death of his intestate. The jury returned a verdict in favor of plaintiff assessing his damages at $13,500. Defendant appeals from the judgment entered on the verdict.

There is substantially no dispute as to the salient facts. Defendant operates a railroad with two double track main lines between Chicago and Milwaukee. On the night of February 3, 1938, its freight train, consisting of an engine, cars and a caboose, proceeded south on the southbound main line track from Milwaukee, Wisconsin, to Waukegan, Illinois, where pursuant to some switching operations the conductor and rear brakeman discovered that there was a leak in the air brake pipe underneath the eighth car ahead of the caboose, which was also the 34th car back of the engine. It was decided to take that car out of the train and leave it at Waukegan, a car repair point along the right of way. The operation normally required to set this car out for repairs necessitated the uncoupling of the automatic couplers at the rear end of that car, closing the air line pipe at both ends of the car by turning the shutoff or angle cocks, closing the air line pipe at the rear end of the car ahead, and “bleeding” the air out of the air line and the auxiliary air tanks on the eighth car itself. Following these various steps the engine would then haul the forward 34 cars, including the defective one, to an appropriate switch track, where the bad car would be set out and left and the remainder of the then 33 forward cars would be backed against and coupled onto the rear 7 cars and caboose, permitting the train to proceed on its way south to Chicago, which was its final destination. The various steps necessary to setting out the defective car had been completed to the point of shutting off the air line and bleeding the car, but then upon information from decedent to the crew, the engine, with the 34 cars next behind it, including the “bad order car” at the end of the string, pulled out south, leaving the other seven cars and the caboose, as well as the conductor and the rear brakeman, at Waukegan. Walter J. Probert, plaintiff’s intestate, the head brakeman on the train, was at the front of the train, off and on the engine, while the various necessary steps heretofore described were followed, and it was he who was responsible for the movement out of Waukegan, leaving part of the train and crew behind. As the result of this situation, the yard clerk at Waukegan, near whose office the incident had taken place, telephoned to the chief dispatcher at Chicago reporting the circumstances, and as the engine and 34 cars were proceeding south, the train was intercepted by the towerman at Lake Bluff, the next interlocking plant and tower, some 5 or 6 miles south of Waukegan, and ordered to stop. The chief train dispatcher at Chicago, who had received a telephone call from the yard clerk at Waukegan, dictated a message to the towerman at Lake Bluff with directions that it be delivered to the engineer in charge of the train as it passed through Lake Bluff. The message read: “Chicago, Illinois, February 3, 1938. To Engineer: You left your rear part of train at Waukegan. Set out part of train you now have on east passing track at Lake Bluff and return at Waukegan on westward track for balance of your train. OAGr.” Ira M. Arquilla, towerman at Lake Bluff, stopped the engine at his tower as directed and delivered the original message to Probert, the deceased. Probert thereupon read it aloud to the enginemen, then handed it to the engineer, Albert Olsen, who read it aloud to the fireman, Henry Christiansen, and Probert. The engineer and Probert, in the presence of the fireman, then discussed the movements necessary to carry out the instructions of the chief dispatcher, and came to an understanding, which the engineer, who was in charge of the train in the absence of the conductor, formulated and which was as follows: The train was to proceed on in a southerly direction; Probert was to get off the engine at the pot, or dwarf, signal, at the south end of the interlocking plant, stay there until the rear car cleared that signal, and then with his lighted fusee (a bright red signal light), signal to the enginemen to stop. He was then to await the indication on the pot, or dwarf, signal, alternately operated as a part of the interlocking plant, that the train might be backed into and on the plant and into the east passing track and then signal the enginemen to so back up. This was described by several witnesses as the appropriate and only operation necessary to carry out the order of the train dispatcher.

The layout of the tracks at Lake Bluff is shown by a blueprint introduced in evidence. The main line between Chicago and Milwaukee runs directly north and south, and not far west of Lake Michigan. Although defendant operates two double track main lines between these points, the more easterly of the-two is the only one involved in this proceeding. In railroad parlance the more easterly track of this line is called the east track, which takes care of the southbound traffic from Milwaukee to Chicago. The so-called west track accommodates the traffic north from Chicago into Milwaukee. Except in emergency or other unusual circumstances, no northbound trains are operated on the easterly or southbound track. In double track territory the Northwestern operates its trains on the left-hand tracks, but the engineer is stationed on the right-hand side of the engine, as on other railroads, and the fireman on the left-hand side thereof. Owing to a slight curve in the track, and obstructions near the track south of the tower and the pot signal, and the location of the latter on the east or fireman side of the train, Probert’s signals had to be and were received by the fireman and orally transmitted to the engineer, who could not see Probert from the right side of the engine.

About 400 feet south of the south end of the interlocking plant and the pot signal there is at Lake Bluff leading at an acute angle north from its switch, a short siding, built to accommodate some ten or twelve cars, called the house track, the switch of which, connecting it with the easterly or southbound main track, is operated by hand. It has no switch light on it for night switching, and is not a part of and is incapable of being operated by the interlocking plant. This house track was built to serve the freight house built adjacent to it and was used for “spotting” merchandise cars there, usually one at a time, for loading or unloading at the freight house.

The so-called east passing track onto which the chief dispatcher ordered the engineer and Probert to put the 34 cars is a long track accommodating some 40 or 50 cars. It is connected with the easterly or southbound main track only at its south end, being in fact a stub track which was seldom used as a passing track, even though it was so-called, but was commonly used as a convenience by a station to station train or switch run to temporarily store a portion of its cars while working at other stations and then returning to take them up. This passing track was also used, as indicated by the evidence, for setting out bad order cars until the repair man could come and repair them, and for holding “bunk” cars, where trainmen live, eat and sleep while at work in that neighborhood.

After the message was received and read aloud to the enginemen, then handed to the engineer who read it aloud to the fireman and Probert, the crew proceeded to carry out the switching operation under the direction of the engineer, in pursuance of the instructions received and the plan agreed upon. The engine and cars proceeded south and Probert got off the engine at the pot signal. The accident occurred about 4:00 o’clock in the morning, and owing to the darkness, the weather conditions and the circumstances involved, signals had to be and were given by lighted fusees, which were in Probert’s possession. The 34 cars and engine constituted a rather lengthy train, so that the fireman and engineer were nearly one third of a mile from where Probert was stationed. Probert alighted from the engine on which he was riding at the signal as planned and he then undoubtedly knew that there were no cars on the east passing track and that the track was clear. The first signal from Probert’s fusee, after he alighted from the engine, was the car stop signal, which was given from either the side or top of a car at the end of the train. The fireman at once transmitted this signal to the engineer, who then brought the train to a stop. From the top of a car Probert next gave the car back-up signal, which the fireman again relayed to the engineer, who then acted upon it and started the train in a backward motion. The next was a slow signal, indicating desired retardation of speed, which was at once followed by the engineer by applying his independent brake, which acts upon the engine alone and has the effect of slowing the engine and the whole train. Probert, by means of his fusee, which was of course not visible to the engineer from the right side of his cab, kept repeating the slow signal, and the engineer obeyed this by keep-in his speed reduced accordingly. The next fusee signal given was a stop signal, then a fast stop signal, and finally an emergency signal (what they call a “washout,” which means stop at once). This signal was immediately relayed by the fireman to the engineer who applied the full emergency braking power, the emergency air brakes, and almost immediately after that, the enginemen testified, they felt a shock or jar from the rear end, and the train came to a stop within a distance of approximately 75 feet. Immediately after the emergency brakes were applied Probert’s fusee disappeared. He had been standing on the top of the rear car, and when the fireman observed the disappearance of the fusee he descended from the engine, walked to the rear end of the train, and then discovered for the first time that the rear cars of the train were on the little house track instead of on the east passing track, as the train dispatcher had directed and as the crew had planned. The rear car was tipped off the dirt-embankment, which constituted a part of a bumper that had been provided at the end of the little house track, and Probert was found lying dead on the ground. The engineer waited awhile and then he too went back and learned for the first time that Probert had thrown the hand switch and directed the train into the house track instead of into the east passing track. It is clear from the evidence that at no time before the derailment did Probert, the engineer or the fireman mention the house track or in anywise indicate that the cars should be put anywhere but on the east passing track, as ordered by the train dispatcher and the engineer in the conference of the crew upon receipt of the dispatch from Chicago.

The evidence affords no explanation why Probert, of his own accord, and without advising the engineer or the train dispatcher, went from the pot signal to the house track switch, unlocked it, lined it up by hand, and then by signal backed this train into the house track. Nevertheless, that is what he did. The administrator, a brother-in-law of the decedent, was engaged as a train dispatcher for the Chicago, Milwaukee & St. Paul Railroad, and he offered several theories as to possible reasons why Probert had directed the train onto the house track in violation of the train dispatcher’s orders, but none of these theories is supported by such evidence as would justify his violation of the dispatcher’s orders. Numerous witnesses, including plaintiff himself, testified that train dispatchers’ orders must be implicitly obeyed, and if an order is ambiguous or impossible of performance, or if after its receipt the trainmen discover a condition which would make it dangerous to carry it out, it then becomes their duty to telephone to the dispatcher, if a telephone is available, and ask for further or different instructions. In this instance a telephone was available in the tower man’s station at Lake Bluff.

From evidence adduced by Philip G. Campbell, defendant’s division superintendent, and Daniel O. Bubb, the station agent at Lake Bluff, it appears that the east passing track was rarely used as a passing track. It was used mostly for storage track purposes, and there is no evidence to the contrary. Likewise, the house track had its own definitely limited uses. It was not connected up with the interlocking plant, and access to it was by means of a hand thrown switch, on the switch stand of which there was no signal light for night switching. Cars placed on this track were usually spotted there at the freight house for loading or unloading purposes, and the evidence discloses that at least for ten years before this accident no cars on this track had rolled much beyond the freight house, and none as far as the improvised bumper at the dead end of this track. Since this house track accommodated only ten or twelve cars, Probert, who had been engaged as a brakeman on the road for some 16 years and was familiar with the track layout, must have known that it was dangerous to back a 34-car freight train thereon. On the other hand, it was not at all dangerous to back a train of this length into the east passing track, and the crew had been specifically ordered by the train dispatcher to use the east passing track in this switching operation. Under the circumstances, the only conclusion deducible from the evidence is that Probert, for reasons known only to himself, and without advising the engineer or fireman who were proceeding to place the cars on the east passing track in accordance with the dispatcher’s orders, directed the fireman and engineer to back the train onto a short and dangerous switch track in violation of specific instruction and an ironclad rule of the company that train dispatchers’ orders must be implicitly followed.

The administrator and his counsel argue that the fireman and engineer were negligent in not slowing the train down more when Probert gave the slow signal by means of the lighted fusee, and in not stopping the train immediately when the “washout” or emergency signal was . given immediately preceding the accident. While there may be some dispute as to the facts on this phase of the case decisions under the Federal Employers’ Liability Act, which are controlling in cases of this kind, are consistently to the effect that if the sole proximate cause of plaintiff’s injury or death resulted from his own conduct, it bars recovery. In Great Northern Ry. Co. v. Wiles, 240 U. S. 444, a drawbar on a freight train came apart, and the train, while stopped, was hit by a following passenger train. Wiles was the rear brakeman on the freight train, and it was his duty when it stopped to go back and flag, which he failed to do, staying in the caboose where he was killed by the collision. The court denied recovery, saying: “There is no justification for a comparison of negligences or the apportioning of their effect. . . . Wiles knew them (the rules) and he was prompted to the performance of the duty they enjoined . . . by signals. . . . He disregarded both. . . . He brought death to himself and to the conductor of his train.” In Davis v. Kennedy, 266 U. S. 147, an engineer was killed in a collision of Ms train with an'other, west of a point known as Shops. The other train had the right of way, and the crew of Kennedy’s train had instructions never to pass Shops unless they knew as a fact that the other train had passed it. Kennedy ran his train past and beyond Shops and the collision occúrred. Negligence of the other members of the crew was alleged but recovery was denied, and Mr. Justice Holmes, in commenting on the circumstances, said (pp. 148, 149): “It seems to us a perversion of the statute (the Employers’ Liability Act) to allow his representative to recover for an injury directly due to his failure to act as required on the ground tJiat possibly it might have been prevented if those in secondary relation to the movement had done more.” In Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139, a conductor who had printed orders that his train was to pass the other at Bridgeport, instead of waiting at Bridgeport, directed his train to proceed, resulting in a collision in which Caldine, the conductor, was killed. Certain facts showing unusual conduct on the part of other employees were adduced in evidence, but the court reversed judgment for plaintiff, saying (p. 142): “He cannot hold the company liable for a disaster that followed disobedience of a rule intended to prevent it, when the disobedience was brought about and intended to be brought about by his own acts.”

It is clear from the record that Probert’s negligence was the primary and in fact the sole and efficient cause of his death, and under the consistent rulings of the Federal courts, many of which are cited in defendant’s brief, recovery is barred under the act. (Atlantic Coast Line R. Co. v. Davis, 279 U. S. 34; Southern Ry. Co. v. Gray, 241 U: S. 333; Southern Ry. Co. v. Youngblood, 286 U. S. 313; Frese v. Chicago B. & Q. R. Co., 263 U. S. 1, 3.)

We have searched in vain for any evidence tending to show that the negligence of defendant or any of its employees was the proximate cause of the death of plaintiff’s intestate. The complaint alleges that defendant negligently failed to provide a safe and secure stop at the north end of the house track; that it negligently maintained there a pile of dirt that would cause a car which should run off the end of the track to tip over; and that it so negligently operated the train as to cause it to run violently off the track and onto said embankment. All these allegations are effectively answered by the circumstances that this train should not have been on the house track, that it was placed there by Probert without the knowledge of the engineer and fireman, and in violation of the dispatcher’s orders, and that Probert’s own conduct in disobeying the train dispatcher’s orders and violating the directions of the engineer in charge of the train, was the proximate cause of his death.

Plaintiff’s counsel argue that where there is negligence both of the injured party and some other employee of defendant which combined to cause the injury, contributory negligence of the injured party is no defense. This rule is not applicable under the undisputed record in this case that Probert violated the company’s orders, and that in so doing he created a dangerous situation for which he was solely responsible and for which there is no plausible explanation in the record.

Plaintiff argues that where a motion for a new trial, although filed in writing, is not argued by the moving party, the judgment should be affirmed. His counsel take the position that it is the right of every litigant, in so far as possible, to dispose of his case in the nisi prius courts, and that a mere perfunctory motion is not such a presentation thereof as will entitle the moving party to the judgment of an Appellate Court upon the question of whether the trial court did or did not err in overruling the motion for a new trial. The record discloses that defendant’s motion to set aside the verdict of the jury and for a new trial specifies 22 different supporting reasons for the motion which was made April 21, 1939. Subsequently, April 27, 1939, the court entered an order reciting that defendant by its counsel together with attorney for plaintiff appeared in court; that defendant’s attorney announced to the court that he had filed a motion for a new trial, “but he wished to submit it to the court without oral argument, and did then and there submit said motion to the court without oral argument, and the said court then and there denied the same.” The gravamen of plaintiff’s contention is that defendant’s counsel, having failed to argue the motion, tins court is precluded from reviewing the evidence, considering its weight, or the rulings of the court on its admission or exclusion, and that the judgment should therefore be affirmed. Plaintiff relies on several decisions, including Calumet Furniture Co. v. Reinhold, 51 Ill. App. 323, and Firemen’s Ins. Co. v. Horton, 68 Ill. App. 497. Both of these cases were considered in the more recent decision of Eckels v. Hawkinson, 138 Ill. App. 627. In that case the trial court certified that defendants being invited and called upon by it to argue the motion for new trial refused to do so, and refused to point out to him in more particularity than did the formal written motion before him, what they relied on to show the verdict erroneous, or the rulings of the court on the admission of evidence, mistaken. Upon that state of the record the question arose whether the conduct on the part of defendants amounted to a waiver of the motion for a new trial, and it was held that it must be considered as having been abandoned. In reviewing prior decisions in this State the court pointed out, however, that the earlier view, as expressed in Calumet Furniture v. Reinhold, and in Firemen’s Ins. Co. v. Horton, had later been modified by a less rigorous rule, and said (pp. 631, 632): “Thus, in Hartford Fire Ins. Co. v. The Northern Trust Co., 127 Ill. App. 355, the doctrine of Calumet Furniture Co. v. Reinhold, supra, is by this court expressly repudiated, if it is to be understood as tantamount to a general rule that every motion for a new trial which is not argued is to be considered abandoned. Similar disr sent from this extreme view has been expressed by the learned justices of the Appellate Court in the Second and Fourth Districts, respectively, in Modern Woodmen of America v. Graber, 128 Ill. App. 585, and in Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Sparks, 122 Ill. App. 400." The current rule undoubtedly is that a motion for a new trial, may be so waived by abandonment in the court below as properly to foreclose the Appellate Court from examining the propositions on which it is based, but each case rests upon the particular circumstances indicating whether or not a waiver may be presumed. The order entered by the trial court in the case at bar shows no such presumption; it rather indicates the contrary. Defendant’s counsel called the. court’s attention to the fact that his motion had been filed, that he wished to submit it to the court without oral argument, and “did‘then and there submit said motion . . . and the said court then and there denied the same.” If the trial judge had desired an oral argument, and so indicated, defendant’s counsel would undoubtedly have been called upon to comply with the court’s request, or if he had refused to do so the court might have construed the refusal as an abandonment of the motion. (Eckels v. Hawkinson, 138 Ill. App. 627; Hartford Fire Ins. Co. v. Northern Trust Co., 127 Ill. App. 355; City of Chicago. v. Sullivan, 139 Ill. App. 675.)

Although the accident was a deplorable one, we are satisfied, after careful examination of the record, that the trial court should have directed a verdict in favor of defendant as requested. Because of the failure of the court so to rule, the judgment of the superior court is reversed.

Judgment reversed.

Scanlan and Sullivan, JJ., concur.


author: Opinion by Justice Scanlan.

text:
    John B. Maypole and Mayme E. Maypole, Appellants, v. Joseph Spatafora et al., Appellees.
    Gen. No. 40,834.
    Heard in second division, first district, this court at October term, 1939;
    opinion filed July 1, 1941;
    rehearing denied September 17, 1941.
    Irving D. Levin and Jacob Brisgall, for appellants; John F. Tyrrell and Alexander W. Jamieson, for appellees; Paul J. Donovan, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.”


text:
    H. P. Ramming, Appellant, v. Belt Railway Company of Chicago and Atchison, Topeka & Santa Fe Railway Company, Appellees.
    Gen. No. 40,873.

      Heard in second division, first district, this court at October term, 1939;
    opinion filed July 1, 1941;
    rehearing denied September 17, 1941.
    Krohn & MacDonald, for appellants; Stuart B. Krohn and Ian P. MacDonald, of counsel; Emmet Trainer, Joseph S. Lafferty and William J. Milroy, for appellees; Charles H. Woods, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.’’


text:
    Joseph Solomon, Plaintiff, v. Moses I. Bayles et al., Defendants. Wingyle Corporation, Assignee of Rights of Joseph Solomon, Deceased, Appellant, v. Moses I. Bayles et al., Appellees.
    Gen. No. 41,002.
    Heard in second division, first district, this court at October term, 1939;
    opinion filed July 1, 1941;
    rehearing denied September 17, 1941.
    Henry G. Fernease, for appellant; Dent, Weichelt & Hampton, for appellees.
   Opinion by Justice Scanlan.

“Not to be published in full.’’


text:
    John Deir et al., Appellees, v. Retirement Board of Municipal Employees’ Annuity and Benefit Fund of Chicago and Catherine McDonnell Braun, Defendants. Catherine McDonnell Braun, Appellant.
    Gen. No. 41,800.
    Heard in second division, first district;
    opinion filed July 1, 1941;
    rehearing stricken September 17, 1941.
    David F. Matchett, Jr., for appellant; Joseph T. Harrington, for appellees; Charles G. Culver, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.”