text:
    Adolf Koban, Plaintiff-Appellee, v. Gordon Supply Company, Defendant-Appellant.
    Gen. No. 33,065.
    Opinion filed June 26, 1929.
    Lee W. Carrier, for appellant.

      No appearance for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff instituted suit in the city court of Chicago Heights to recover the price of goods, wares and merchandise sold and delivered to the defendant. A jury trial was waived. The court found in favor of the plaintiff and gave him a judgment for $774.05. The defendant appealed.

Upon the trial of the case, the parties stipulated that, if the plaintiff assumed and became liable for the accounts of the Great Lakes Iron & Metal Company, he was indebted to the defendant in the sum of $273.29 but that, if he was not liable for these accounts, the defendant was indebted to him in the sum of $774.05.

It appeared from the evidence that in July, 1926, the plaintiff and the Great Lakes Iron & Metal Company moved into an office which they occupied in common. About this time, or shortly before, the company ceased doing business, leaving outstanding unpaid obligations considerable in amount. Morris Getz was the controlling factor in the company. Just what his official position was is not disclosed. He entered the employment of the plaintiff as did also the bookkeeper and another employee of the company. All of the files of the company were taken over by the plaintiff.

The plaintiff testified that the Great Lakes Iron & Metal Company owed him $4,000 and that Getz had a collateral note for $50,000 in the Public State Bank. He also said that he had discharged all of the obligations of the Great Lakes Iron & Metal Company except the debt due to the defendant and that he expected to be paid the $4,000 due him and to be reimbursed for all moneys paid out on account of the company out of “this $50,000.00 note that was held by the Public State Bank which note was secured by collateral put up by the Goldsmith people, payable monthly.” It is not clear from the evidence whether the note was the property of Getz or the Great Lakes Iron & Metal Company.

On cross-examination counsel for the defendant asked the plaintiff if he ever told Ben Gordon, vice-president of the. defendant company, that he (the plaintiff) would assume all of the obligations of the Great Lakes Iron & Metal Company. A general objection was made and sustained. Counsel then put Gordon on the witness stand and offered to prove by his testimony that the plaintiff, some time in the month of July, 1926, said he would pay the debt of the Great Lakes Iron & Metal Company to the defendant and that he further said, “charge the Great Lakes account to me.” The court again sustained a general objection, and indicated that his ruling was based upon the fact that the alleged agreement was not in writing. Counsel then, having laid the foundation for the introduction of secondary evidence, offered in evidence a copy of a letter from the defendant to the plaintiff dated July 31, 1926, which reads as follows:

“Mr. Adolf Koban, .
440 S. Dearborn St.,
Chicago, Ill.
Gentlemen:
This letter is to confirm a personal conversation our Mr. Ben Gordon had with your Mr. Adolf Koban and Mr. M. A. Getz when you were at our yard a few days ago, which was that your Mr. Adolf Koban said to our Mr. Benj. Gordon that any money or account the Great Lakes Iron & Metal Co. owes the Gordon Supply Co. is to be charged to Adolf Koban and he will pay for same. Any scrap iron now on hand belonging to the Great Lakes Iron & Metal Co. is to be invoiced to Adolf Koban in the usual way and as was told and instructed by Mr. Adolf Koban that our future transactions should continue on the same ledger account of the Great Lakes Iron & Metal Co. with the exception that we should change the name to Adolf Koban and continue the same as before. We shall also immediately mail you a statement of the account (of the Great Lakes Iron & Metal Co.) as of July 1, 1926. If the above is not accordance with our conversation we shall expect an answer by return mail, otherwise we shall consider this above confirmed.
Tour very truly,
Gordon Supply Co.
Benj. Gordon”

Objection was made that the letter was of a self-serving character. The trial judge sustained the objection without stating the basis of his ruling.

Proof was also offered to show that about September 20, 1926, Gordon presented to the plaintiff a statement showing a balance due from the plaintiff to the defendant of $273.29, and that the statement was checked over and approved by the plaintiff’s bookkeeper. The court sustained an objection to the offer.

The plaintiff has filed no brief and we therefore assume that the brief and abstract of the defendant fully and correctly state the facts.

• The trial court was apparently under the impression that the alleged conversation between Gordon and the plaintiff, if proved, would establish a transaction violative of the statute of frauds. We think otherwise and that the court erred in excluding evidence of the conversation. If it was as counsel for the defendant offered to prove it to be, it showed, not a promise to answer for the debt of another, but an assumption of the debt and an original agreement to pay it. The test in determining whether a promise is original or collateral is whether the party sought to be charged was to be liable at all events or only in case the other party failed to pay. Illinois Surety Co. v. Munro, 209 Ill. App. 407.

The trial court properly executed the testimony offered for the purpose of showing that the plaintiff’s bookkeeper had approved a statement showing a balance due from the plaintiff of $273.29. There was no proof, or offer to prove, that he had authority to bind the plaintiff.

The letter of July 31, 1926, was, likewise, properly excluded. It was clearly of a self-serving nature and therefore inadmissible.

In the case of Clarkson v. Kerber, 84 Ill. App. 658, one of the parties wrote a letter to the other reciting a conversation between them at a previous date. As in the instant case, there was no reply to the letter. The reviewing court reversed the trial court solely on account of the error in admitting the letter in evidence. The court, among other things, said:

“A party can not make evidence for himself in that way. It amounts simply to this: Defendants in error reduced to writing their statement of what had occurred and sent it to plaintiff in error, and then upon the trial offered that statement in evidence to sustain their contention. It can not be urged that there was any necessity for admitting the letter in evidence. The writer was still living. Indeed, he was upon the witness stand when the letter was offered in evidence.”

This case was cited with approval by the Supreme Court of this State in the case of City of Chicago v. McKechney, 205 Ill. 372. The latter case was cited and the rule announced followed in the case of Cooke Co. v. Miller Brewing Co., 316 Ill. 46, the court saying:

“The general rule is that a party cannot by self-serving declarations make evidence for himself concerning his dealings with the other party or the liability of such other party, and such self-serving declarations are incompetent. They may become competent to rebut evidence of a contrary attitude of the writer where such is offered by the adversary. Letters such as complained of here are simply self-serving statements and are generally inadmissible. City of Chicago v. McKechney, 205 Ill. 372; Bank v. Delafield, 126 N. Y. 410; Fearing v. Kimball, 4 Allen, 125; Hammond v. Beeson, 112 Mo. 190.”

The court also held- that a self-serving letter was not admissible as a part of the res gestae where it constituted but a narrative of a past transaction.

Because of the error of the trial court in refusing to admit evidence of the alleged conversation in question, the judgment of the city court of Chicago Heights is reversed and the cause remanded.

Reversed and remanded.

Wilson, P. J., and Holdom, J., concur.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    Loop Office Building Corporation, Appellee, v. Robert E. Hogan and Charles H. Gorman, trading as Hogan & Gorman, Appellants.
    Gen. No. 33,126.

      Opinion filed June 26, 1929.
    Rehearing denied July 8, 1929.
    M. L. Carmody, for appellants.
    Levisohh & Levisohh, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

On December 6, 1922, the plaintiff recovered a judgment by confession against the defendants in the municipal court of Chicago for the sum of $2,100 for rent due and attorney’s fees. The suit was based upon a lease for a term of five years, commencing July 1, 1922 and ending April 30, 1927, with rent payable monthly in advance at the rate of $440 per month. The judgment was for rent for one-half of the month of August and all of the months of September, October, November and December of the year 1922. The judgment was opened and a trial without a jury had, resulting in a confirmation of the judgment by confession. The defendants appealed.

Whether the judgment of the trial court should be affirmed or reversed depends upon the proper construction to be placed upon the written lease executed by the parties. The material portions of the lease are clause four, which reads as follows:

“That no representations, except such as are contained herein or endorsed hereon, have been made to the lessee respecting the condition of said premises. The taking possession of said premises by the lessee shall be conclusive evidence as against the lessee that said premises were in good and satisfactory condition when possession of the same was so taken; and the lessee will at the termination of this lease, by lapse of time or otherwise, return said premises to the lessor in as good condition as when received, loss by fire and ordinary wear excepted.” And the so-called addendum attached to the lease, reading as follows:
“Addendum
“To lease entered into this twenty-seventh day of June, 1922, between the Loop Office Building Corporation, Lessor, and Hogan & Gorman, Lessee, for Booms 1000, 1002, 1004, 1006 and 1008 on the tenth floor of the building known as the Putnam Building, situate at 10 North Clark Street; lease commencing the first day of July, 1922 and expiring the thirtieth day of April, 1927.
“It is understood and agreed between the Loop Office Building Corporation, herein described as Lessor, and Hogan & Gorman, herein described as Lessee, that should the partitions which are to be installed hot be completed by July 1st, 1922, plat for which has been submitted to and approved by Lessee, the first month’s rent of Four Hundred Forty and no/100 ($440.00) Dollars, which has been applied for the month of July, 1922, shall be applied from the date the partitions are completed and offices hereby leased are ready for occupancy.
“In the event said space is completed and ready for occupancy, and the Lessee does not take possession thereof, the rent shall commence from the time the partitions are completed and the said space is ready for occupancy.” Clause four was in print and the addendum in typewriting.

The defendants offered to prove statements and representations made by agents of the plaintiff which induced them (the defendants) to enter and remain upon the premises in question until in the month of December when they surrendered possession. The court properly excluded this evidence upon the ground that it constituted an attempt to vary, by parol, the terms of a written instrument under seal.

The defendants then offered to prove by the testimony of Robert E. Hogan that he and Charles H. Gorman were, at the times in question, copartners, engaged in the practice of the law and were the lessees under the lease in question; that about May 1, 1922, they moved into the building mentioned in the lease pursuant to certain promises and representations made to them by agents of the plaintiff; that their furniture was placed on the eighth floor of the building then under construction; that about June 27, 1922, Hogan stated to a representative of the plaintiff that it was impossible to remain in the premises and that the defendants would move to other quarters; that on the same date the agents of the plaintiff presented to the defendants a lease in form the same as the one of June 27, 1922, except that it did not contain the addendum, which the defendants refused to execute, giving as a reason for their refusal that they did not know when the building would be completed; that in the early part of August, 1922, the agents of the plaintiff presented to the defendants the lease in question, containing the addendum, and that they executed the instrument; that they then moved to the tenth floor, in the space specified in the lease, but that the partitions were not in, the floors were not laid or the electric wiring installed; that this condition continued until about December 1, 1922, when the defendants moved out, having paid no rent except the $440 mentioned in the addendum to the lease.

There appears to have been no objection to the form of the offer of proof. But the court sustained an objection to the offer and evidently upon the theory that the agreement to pay rent and the agreement to install partitions and make the offices ready for occupancy constituted independent covenants and that the only recourse open to the defendants was to recover damages by way of set-off or recoupment.

The rule applicable to the present case is well stated in the case of Davis v. Wiley, 3 Scam. 234, where the Supreme Court of the State said:

“In the classification of covenants, some of the old cases proceeded upon distinctions extremely nice and technical, but the governing rule to be deduced from modern authorities, is, that ‘covenants are to be construed to be dependent or independent, according to the intention of the parties, and the good sense of the case; and that technical words should give way to such intention.’ According, then, to this rule, the covenants of the parties in this case must be understood as mutual and dependent. Although the time for the payment of the money is fixed by the article of agreement, yet it is evident from the general tenor of that instrument, as well as some of its special stipulations, that the time of payment was fixed in anticipation of the prior performance of the labor.”

Counsel for the plaintiff seek to support the ruling and judgment of the trial court by the case of Rubens v. Hill, 213 Ill. 523. The facts in that case, however, clearly disclose that the agreement to pay rent was an •independent covenant. But not so in the case at bar. The addendum unequivocally provided that no rent should be due or payable until the partitions were completed and the offices ready for occupancy. In other words, the term of the lease, so far as the obligation to pay rent was concerned, did not commence until the premises were made suitable for occupancy.

The trial court erred in excluding evidence of the condition of the premises described in the lease during the period they were occupied by the defendants.

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

Reversed cmd remanded.

Wilson, P. J., and Holdom, J., concur.


text:
    J. W. Sixeas, Appellant, v. Myer Fogel, Lessee, and Vogue Smart Shop, Assignee, Appellees.
    Gen. No. 33,230.
    Opinion filed June 26, 1929.
    Paul A. Neuffer, for appellant; Otto Ade Arnston, of counsel.
    Bosenberg, Braude & Zimmerman, for appellees; Max Daniels, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff was the lessor and the defendant, Vogue Smart Shop, was the assignee of the lessee of certain premises located at 4017 West Madison Street in the City of Chicago. The lease between the parties contained two paragraphs pertinent to the issue raised on this appeal. They read: •

“It is expressly agreed between the parties hereto, that in case the lessee shall make any default in respect to- any of the foregoing covenants, . . . then, and in any of said cases the lessors may at their option at once, without notice to the lessee or to any other person, terminate this lease; and upon the termination of said lease at the option of the lessors as aforesaid, . . . the lessee will at once surrender possession of said premises to the lessors and remove all effects therefrom, and if such possession be not immediately surrendered, the lessors may forthwith reenter said premises and repossess himself thereof as of their former estate and remove all persons and effects therefrom, using such force as may be necessary, without being deemed guilty of any manner of trespass or forcible entry or detainer.
“The lessee expressly waives the service of any notice of intention to terminate this lease or to reenter said premises, and waives the service of any demand for payment of rent or for possession, and waives the service of any and every other notice or demand prescribed by any statute or other law, and agrees that the simple breach of any of the said covenants shall, of itself without the service of any demand whatever, constitute a forcible detainer by the lessee of said premises within the meaning of the statutes of the State of Illinois.”

The lease bore date of October 24,1921, and was for a term of ten years. Bent was made payable at the rate of $300 per month, to be paid in advance on the first day of each calendar month. Neither of the defendants having paid the .rent which fell due on August 1, 1928, the plaintiff on the 23rd day of that month served upon the defendant, Vogue Smart Shop, a notice as follows:

“To Myer Fogel, Lessee, and Assignee, as per Indenture of Lease, dated the 24th day of October, 1921.
“You are hereby Notified, That your tenancy of the following premises, to-wit: the Store on the first floor of the three story brick building known as number 4017 West Madison Street,....................situate in the City of Chicago, in the County of Cook and State of Illinois, will terminate on the thirty-first day of August, A. D. 1928, and you are now hereby required to surrender possession of said preimses to me on that day.
“Dated at Chicago, Illinois, this (22) day of August, A. D. 1928.
J. W. Sixeas.”

On September 24, 1928, the plaintiff brought an action of forcible entry and detainer against the defendants in the municipal court of Chicago. The case was tried before the court, without a jury. The court found in favor of the defendants and entered judgment upon the finding. The plaintiff was granted this appeal.

There is not much conflict about the facts. Bent for the months of May, June and July was paid and payment' accepted by the plaintiff about the middle of each month. After receiving the notice above set out the defendant, Vogue Smart Shop, on August 28, 1928, tendered to the plaintiff the rent due on the first of that month. No objection was made to the form of the tender but it was refused. The plaintiff testified that it was made by proposed purchasers of the business of the Vogue Smart Shop. But there was competent testimony to the contrary which the trial court evidently found to be in accord with the facts and we find nothing in the record which would warrant us in disturbing that finding.

Under this state of facts the law obligated the plaintiff, before declaring a forfeiture, to give notice of Ms intention to insist upon a strict compliance with the terms of the lease with reference to the time the rent should be paid. This he did not do. The law applicable to these circumstances is well expounded in the case of Donovan v. Murphy, 217 Ill. App. 31. In that case the Appellate Court reversed a judgment of the trial court in favor of the plaintiff in a forcible entry and detainer case, saying:

“In the case of Jacobs v. Jurgensen, 191 Ill. App. 67, it was held that where a lease provided that the landlord might declare a forfeiture of the lease because of failure on the part of the lessee to pay rent when due, such landlord had the right to waive the forfeiture and the waiver would be presumed until the landlord did some act manifesting an intention to declare a forfeiture.
“Construing the lease as modified by the admitted conduct of the parties, the plaintiffs had no legal right, as a matter of law, to bring the action on August 9, 1919. Under the circumstances, notwithstanding the provisions of the lease with respect to notice, it was-the duty of the plaintiffs to notify the defendant of the intention to insist upon a strict compliance with the terms of the lease as written,' and the plaintiffs were not justified by a mere secret mental operation in declaring forfeited the rights of the defendant under the lease. Hamer v. Butterly, 189 Ill. App. 79.
“The courts are quite ready to take hold of any reasonable circumstances which show an intent to waive a forfeiture. Jakes v. North American Union, 186 Ill. App. 7. The rule which is to be' applied in the present case is founded upon reason and justice. "Where a lessee has been led by the conduct of the lessor to believe that a strict compliance with the terms of the lease will not be insisted upon, it would be manifestly unfair to permit a forfeiture of the lessee’s right under the lease because of the lessee’s failure to strictly comply with such terms.”

Furthermore, the plaintiff did not elect to terminate the lease without notice and regain possession, by virtue of the provisions of the lease. Instead he served the notice above set forth. Having proceeded in this manner he was bound to comply with the statute relating to landlord and tenant, Cahill’s St. ch. 80, ¶ et seq. McKinney v. James A. Brady Foundry Co., 175 Ill. App. 569. Under the statute the defendants had ten days after the service of the notice in which to pay the rent. Foster v. Rudis, 196 Ill. App. 174. The tender having been made within apt time, the plaintiff was without right to oust the defendant.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Wilson, P. J., and Holdom, J., concur.


author: Per Curiam.

text:
    Elmer C. Dreher, Appellee, v. F. P. Baker et al., Appellants.
    Gen. No. 33,209.

      Opinion filed June 26, 1929.
    Rehearing denied July 8, 1929.
    Frank M. Ely, for appellants.
    Gallagher, Shulman & Abrams and Ward, Huebesch & Farrell, for appellee.
   Per Curiam.

Elmer O. Dreher, trustee, filed his petition July 13, 1928, in the superior court of Cook county, praying for a writ of certiorari against F. P. Baker, J. P. Aylesworth, John J. Dreher, A. C. Stuenkel and J. Klima, members of and comprising the Board of Zoning Appeals of the village of Brook-field, F. A. Schultz, village collector of the village of Brookfield, Thomas Alway, building commissioner of the village of Brookfield, E. B. Graham, president, and John F. Tichy, H. F. Ostrander, John Henning, George Miller, A. F. Harder and Alexander F. Horn, members of the Board of Trustees of the village of Brookfield, to review and revise a decision of the Board of Zoning Appeals of said village filed June 27, 1928.

The petition charged that a certain ordinance was passed by the Board of Trustees of the village of Brookfield November 19, 1924, under an act of the General Assembly in force July 1, 1921, Cahill’s St. ch. 23, ¶ 521 et seq., creating a zoning commission. The petition further charges that, under the zoning ordinance enacted, there was provision for two classes of residential districts, one restricted to single family dwellings and the other restricted to apartment and multiple dwellings, designated respectively as section 3 “A” and section 4 £<B.”

The petition further charged that the petitioner was the owner of a certain lot in the district described as section 4 ££B” and that he applied to the collector and members of the Board of Trustees for permits to erect, use and occupy apartment buildings for residence purposes and deposited with the village collector the sum of $636, which was the requisite amount to cover the fees required for permits; charges further that on June 4, 1928, the Board of Trustees of said village denied his' application and refused to grant him his permits and that thereafter on June 18, 1928, petitioner filed an appeal with the Board of Zoning Appeals and, on June 27 of that year, the Board of Zoning Appeals held a meeting and considered the application and at such meeting the action of the trustees of the village was upheld and charged that the action of the village authorities and the Board of Zoning Appeals was unjust, unfair and unlawful.

On the hearing in the superior court it developed that after the application for permits had been made by petitioner and the money paid to the village collector, an amendment was passed by the Board of Trustees of the village of Brookfield amending the zoning ordinance, as a result of which the lots of the petitioner were thrown into that district covered by the zoning ordinance, which was limited to single dwellings only.

After the passage of the amendment the trustees of the village of Brookfield" denied the application for permits and, on appeal to the zoning board, three of the members of said zoning board voted in favor and one against the issuance of the permits. The statutory requirement, Cahill’s St. ch. 23, ¶ 523, provides that the votes of four members of the .zoning board are necessary on questions coming up on appeal from the Board of Trustees and consequently the appeal was lost.

Upon a hearing in the superior court a motion was made to quash the writ of certiorari and it was ordered that the defendants issue to the petitioner permits to erect the six apartments on the lots in question. An appeal was prayed and allowed to this court and after said appeal had been perfected, the petitioner, Elmer C. Dreher, trustee, filed certain pleas, leave of court being first obtained, charging release of errors. To these pleas defendants filed their replications and the matter was referred to a special commissioner to take-proof and report the testimony back "to this court without his conclusions. The merits of the cause are not now before us and we have considered only the question on the issues made by the pleas and replications on the proof reported back by the commissioner. Scott v. Scott, 304 Ill. 267.

The pleas in effect charged that after the appeal had been perfected, the Board of Trustees of the village of Brookfield on August 20, 1928, passed the following resolution:

“It is regularly moved and seconded, that the building commissioner be instructed to issue a permit for the erection of an apartment building on the North West corner of Arden and G-roveland Avenues in conformity with the request of the builders, the court having handed down a decision allowing the petitioner the right to erect buildings as proposed on that site. ’ ’

Further charges that the place stated in said resolution referred to the lots of petitioner and that, by arrangements with the trustees, petitioner agreed to erect four buildings instead of six and that thereupon the village paid back to petitioner the difference between the cost of the application for four buildings instead of six as originally applied for, and retained $424, the cost of permits; charged further that, thereupon, petitioner began excavating and entered into contracts for cement work, masonry, cut stone work, plastering, millwork, carpenter work, etc., to the aggregate of $46,000, and also entered into contracts for the sale of three of said buildings "and became liable in damages for a large sum of money. To these pleas the trustees of the village of Brookfield filed replications charging that on September 4, 1928, the Board of Trustees of the village of Brookfield did, by motion duly made and carried, rescind the order of August 20, 1928, referred to in the pleas, and did not consent to nor ratify the judgment of the superior court of August 20, 1928, or release the errors. Charges further the collector of the village of Brookfield delivered back to petitioner the total sum that petitioner had delivered to the collector as fees for the building permits.

We find, as a matter of fact, that the Board of Trustees of the village of Brookfield did, on the 20th of August, 1928, pass the resolution hereinbefore set forth and pleaded ás a release of error, and that it did not on September 24, nor at any time thereafter, rescind said action and that it did not pay back to petitioner all of the money deposited by him with the village collector for the purpose of obtaining the permits in question.

The replications filed by the members of the zoning board charged that that board did not consent to the waiver of the appeal, but an examination of the record shows that that board never, at any time, authorized any appeal to be taken on its behalf from the judgment order of the superior court.' From the testimony we are of the opinion that the attorney perfected the appeal on behalf of said board without authority and was unauthorized so to do. The action of the Board of Trustees of the village in ratifying the action of the trial court was a sufficient indication that the board had not authorized the appeal ánd its records are silent as to the authorization of the proceedings in this court, with the exception of the resolution hereinbefore referred to.

The case of Sackett v. City of Morris, 149 Ill. App. 152, held that a city attorney had no authority to interfere with the action of a city council and to control proceedings contrary to the right of the city council to order their discontinuance.

In the case of Bell v. Farwell, 189 Ill. 414, it was held that it was the duty of a court to dismiss a proceeding where it had been commenced by an attorney without authority. It is urged on behalf of the defendants, by their counsel, that in order to constitute a release of error, it must appear that the defendants procured some advantage by reason of the action done. We have considered this cause, however, only upon the testimony submitted by the special commissioner and upon the pleas and replications and the issue therein made, and are of the opinion that the village of Brook-field, under the issues as formed by the pleas and replications, is estopped from interfering with the erection of the four apartment buildings in question. The end of the litigation, in itself, constitutes some advantage to the village, which, coupled with the obligation incurred by the defendant, is a sufficient ground for sustaining the pleas. Donahoe v. Owens, 277 Ill. 318; Scott v. Scott, 304 Ill. 267.

For the reasons stated in this opinion, the issues are found in favor of the petitioner and against the defendants on the pleas and replications under the testimony submitted by the special commissioner and the judgment of the superior court is affirmed.

Judgment affirmed.


author: Mr. Justice Shurtleff

text:
    W. I. Grinestaff, Appellee, v. New York Central Railroad, Appellant.
    Gen. No. 8,264.

      Original opinion filed January 24, 1929.
    Opinion modified and refiled April 17, 1929.
    Reariok & Meeks, for appellant; S. O. Mitelvy, of counsel.
    Hutton & Clark, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action brought by appellee to recover damages for injuries resulting from an automobile collision which occurred at a railroad crossing in Hammond, Indiana, on November 26, 1927. There were various counts in the declaration charging negligence, and the fifth count charged defectively a wanton and wilful injury in that appellant was in the possession of and operating a line of railroad; that one of said tracks, at grade, intersected and crossed at right angles a paved public street called Kennedy avenue, which ran north and south, and from which crossing the tracks of appellant extended west for a distance of 200 feet and from thence turned and extended to the southwest for a distance of 1,500 feet, where it connected with other railroad tracks. Also, that at a place 400 feet south of said crossing, on said avenue, said highway was crossed at right angles by four other railroad tracks; that Kennedy avenue for three years next preceding the accident, was traveled in the nighttime by an average of one hundred vehicles per hour; that at said crossing there were stationed no gates, bells or like means of warning, and that in the nighttime, and for three years preceding, to the westward from said avenue there were, at distances ranging from one-fourth mile to two miles, one thousand lights upon moving and standing engines and cars, buildings and posts, ranging in height from 9 feet to 15 feet from the ground, which lights were likely to deceive the traveling public using said highway and crossing, not knowing or determining whether any trains were traveling upon appellant’s tracks over said crossing. And the count proceeds: that said conditions created and constituted an extrahazardous condition, well known to appellant; that on said date and in the nighttime and in the dark, appellee was traveling upon said Kennedy avenue from the south and riding in his said automobile in a northerly direction toward and at said crossing; that appellant, by its servants, then operated an engine and tender from a point 1,500 feet southwest from said crossing, running backwards with the tender in front thereof, upon and across said Kennedy avenue crossing; that upon said engine so approaching said crossing, there was on the easterly end only a small light 6 inches in diameter, not of sufficient size and intensity to be a sufficient warning of the approach of the engine and tender, which insufficiency of said small light and facts aforesaid were well known by the servants of appellant, or would have been known to them by the exercise of due care on their part; that appellant, by its servants, from a point 500 feet westerly of said Kennedy avenue wilfully, wantonly and negligently, at a high and dangerous rate of speed of 30 miles per hour, without sufficient warning by whistle (or bell or other warning sound) from said engine, or a sufficient light from the easterly end of the tender and engine, backed and propelled said engine over said crossing, and in consequence thereof, said engine collided with said automobile and appellee was not apprised of the approach of said engine, and thereby he was injured in person and property. In other words, the fifth count charged:

“The defendant, by its servants, . . . wilfully, wantonly and negligently, . . . backed and propelled said engine over said crossing, and in consequence thereof, said engine collided with said automobile . . . and thereby he (the plaintiff) was injured,” etc.

The accompanying circumstances were that the speed being 30 miles per hour, oñ a dark night, over a crossing where one hundred vehicles passed every hour, with a small light not over 6 inches in diameter at the front end of the tender,, and with an electric light facing southwest from the front end of the engine, with a thousand lights upon moving and standing engines and posts from 9 to 15 feet in height to the west and northwest, and giving no warning by whistle or bell, the servants of defendant ran this engine backward and injured the plaintiff. The fifth count alleges no care or caution on the part of plaintiff.

The cause was presented to a jury and at the close of appellee’s case and at the close of all the evidence appellant moved the court to exclude the fifth count from consideration of the jury and for an instructed verdict upon said fifth count, which was refused, and there was a verdict in favor of appellee in the sum of $5,000. Motion for new trial was made and overruled and judgment entered upon the verdict, from which appellant has appealed.

One of the chief contentions upon this appeal is, whether the proofs submitted were sufficient to establish a wanton and wilful injury. Other errors are pointed out and it is strongly contended that appellee was guilty of gross negligence in attempting to cross the tracks in advance of a moving engine, and that the verdict and judgment can only be sustained under the fifth count. We shall, therefore, give attention to the fifth count and the proofs thereunder.

Hammond is a city of sixty to seventy thousand population and the crossing in question within 150 or 175 feet from the railroad switch yards and in an open territory free from buildings and obstructions, but covered by a network of railroad tracks. The territory between the tracks of the Michigan Central and appellant are triangular in form and all is level ground and free from any obstructions, except about 300 feet west and south from the crossing on appellant’s tracks there is a signal shop about 16 by 20 feet (one story) high, and further west some small buildings. There were some lights on tanks to the northwest of the crossing and other lights to the west and northwest one-fourth to one-half mile away. The concrete on Kennedy avenue at the Michigan Central crossing was 48 feet wide and at appellant’s tracks 28 feet in width at the north side.

On the night in question appellant’s freight train from the east had stopped about eighteen car lengths east of the crossing in question, cut off sixty cars and gone forward over this crossing; hauled the sixty cars into the Gibson yards, detached the engine and tender, which then ran backwards to the northeast, over the curve, past the signal shop, thence nearly east towards Kennedy avenue crossing to connect with appellant’s train left standing east of the crossing. There is no testimony in the record offered by appellee tending to show in any respect the speed of the engine and tender in its backward course. There is no testimony in the record tending to show the amount of road traffic over this highway, except that appellee had crossed at this same place earlier in the week and in the preceding week, and had lived at Hammond and worked upon the roads and was then working at Hammond and driving a team upon the roads, although his home was at Hoopston.

The witness Linton also testified that he had been over the road one hundred times; that it had been paved ten or twelve years and leads from Indiana Harbor to Ridge Road, was a main thoroughfare and used constantly, and the witness stated: “I can safely say there are a thousand cars go across there in a day’s time.” Only two cars were seen upon the street on the night in question and there are no proofs as to what the traffic is in the night.

That the territory was much congested by railroad tracks was shown by appellee’s testimony that while he was driving from where he lived in Hammond to where he worked that he crossed seventy-five railroad tracks. He did not know whether these tracks were main line or side tracks. North of the crossing in question another railroad crossed Kennedy avenue on a viaduct 1,500 feet north of the place of the accident. Between these points another railroad also crossed the avenue. Appellant had another main line of railroad entering the Gibson yards from the northeast, which went northeasterly and southwesterly aboiit 1,500 feet to the northwest of the place of the accident. The oil tanks and lights were all to the west and north of the latter railroad. There were no oil tanks, lights or obstructions between it, Kennedy avenue, and the tracks upon which the engine ,and tender engaged in the accident were running. The Gibson Railroad yards extended southwesterly and westerly for about a mile and a half from a point about 200 feet west from the point of injury.

Appellee, with his Ford tudor sedan, was driving north on Kennedy avenue at 1:00 or 1:30 at night. Mary Burnett sat behind appellee on the rear seat and Matt Burnett beside her to the right. Matt Burnett and Mary Burnett had been married in Gary, Indiana, about ten miles from the place of the accident, at 8:30 the preceding evening and the party had left Gary in the car at 9 p. m. and had been riding continually since leaving Gary. They had not been out of the car and were on their way back to Gary. While going over the crossing in question, the engine and tender backed into appellee’s car, demolishing it, causing the death of Ida Cobb and inflicting serious injuries upon appellee. Appellee contends that he places reliance upon each count in the declaration and that he fully established each count. The cause went to the jury on all the counts in the declaration and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wilfully or wantonly and negligently at the same time. (Chicago City Ry. Co. v. Jordan, 215 Ill. 390; Walldren Express & Van Co. v. Krug, 291 Ill. 472; 45 Corpus Juris, 674, 1090 and 1091; Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 541; Kalinski v. Williamson County Coal Co., 263 Ill. 265; Goodman v. Chicago & E. I. Ry. Co., 248 Ill. App. 128, 137; Stoike v. Bonasera, 243 Ill. App. 281, 286; Burns v. Chicago & A. R. Co., 229 Ill. App. 170, 186.)

In Stoike v. Bonasera, supra, the court say on page 286:

“ ‘Negligence and wilfulness are as unmixable as oil and water. “Willful negligence” is as self-contradictory as “guilty innocence.” ’ Salmond says, ‘No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.’ Salmond on Jurisprudence, p. 409 (7th Ed.)”

In Burns v. Chicago & A. R. Co., supra, the court say on page 184:

“In Chicago & E. I. R. Co. v. Hedges, 105 Ind. 398, 7 N. E. 801, the declaration, after mentioning certain obstructions to the view of one approaching said crossing from the north, and further alleging the conduct and due care of the plaintiff, charged that the defendant, by its servants and agents, carelessly, negligently, purposely, wilfully and recklessly caused said train of cars to approach said crossing, and negligently, carelessly, purposely, wilfully and recklessly omitted, by reason of their having detached and driven away the said locomotive engine, as aforesaid, while so approaching said crossing, to give any signal by ringing the bell or sounding the steam whistle, or otherwise, and that by reason of said careless, negligent, wilful and reckless management of said train of cars, they were thereby driven and run against and upon said Daniel T. Hedges and thereby caused his instant death. The court says that: ‘Notwithstanding the frequent use of the words “purposely” and “wilfully,” the pleading does not charge that the defendant purposely or wilfully killed the intestate, or purposely or wilfully ran the train upon him, or purposely or wilfully caused it to be run upon him. The allegations amount to no more than a charge of killing through negligence.’ Ohio & M. Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Cincinnati & M. Ry. Co. v. Eaton, 53 Ind. 307; Pennsylvania Co. v. Sinclair, 62 Ind. 301; Indianapolis & V. Ry. Co. v. McClaren, 62 Ind. 566.”

It is apparent in the Hedges case that under the law of Indiana, where the injury occurred, the fifth count, as charged, would not be held to have charged a wilful and wanton injury. However, the count was not demurred to and under the authority of Walldren Express & Van Co. v. Krug, supra, and 45 Corpus Juris, page 1091, supra, together with the attending circumstances charged, the fifth count was sufficient to charge a wilful and wanton act.

It has been held specifically that on a count for wilful and wanton injury the pleader may waive the wilfulness of the charge and recover as for negligence, on the ground that the greater includes the less and in Marquette Third Vein Coal Co. v. Dielie, 208 Ill. 116, 119, the court held: “It is the practice in this State to try personal injury cases under declarations the separate counts of which charge negligence and wilful and wanton misconduct; (Chicago Terminal Transfer Railroad Co. v. Gruss, 200 Ill. 195); and although the rules of law as applied to the separate counts of such a declaration are not the same, it has never been thought for that reason such counts could not be joined in the same declaration.”

The rule is the same as in Reed v. Peoria & O. R. R. Co., 18 Ill. 403, 404, where it is held: “The plaintiff, in actions of trespass, may join counts for trespass to land and trespass to person and to personal property, and in such ease, each count being an independent cause of action, he may recover upon such counts as are sustained by proof, although he fail as to others.” Since that ease was decided the Legislature has abolished the distinction between trespass and case as to the form of the action, but the act does not abolish the substantive law relating to either. In Blalock v. Randall, 76 Ill. 224, 228, it is held:

“We do not see that the statute abolishing the .distinction between the actions of trespass and trespass on the case changes the rule, as is contended by appellee. The statute does away with the technical distinction between the two forms of action, but does not effect the substantial rights and liabilities of parties, so as to operate to give any other remedy for. acts done under legal process issuing from a court or off; • cer of competent jurisdiction than before existed, an action on the- ground of malice .and want of probable cause.” And in Chicago Title & Trust Co. v. Core, 223 Ill. 58, 63, the court holds: “The statute does away with the technical distinction between the two forms of action but does not affect the substantial rights or liabilities of the parties, and the averments and proof necessary to sustain either cause of action are the same as at common law.”

Appellee, Matt Burnett and Mary Burnett each testified that it was a dark, cold night; that when they approached the Michigan Central tracks, 350 feet to the south there is a large red sign in the center of the road and the car was stopped; that they drove on the right-hand side of the road and were watching all along for trains after crossing the Michigan Central tracks and proceeding north; that the lights on the Ford car were working perfectly and the car proceeded at a rate of ten to twelve miles per hour. Appellee and each of the Burnetts testify that after crossing the Michigan Central tracks each looked both east and west continually for signs of a train upon appellant’s railroad. Matt Burnett testified it was so dark one could see nothing. All of them knew they were coming to railroad tracks because the lights on their automobile showed the rails plainly, one states 150 feet away and another 75 feet away, and all could see the signboard with a light on it marked “Railroad Crossing, Danger.” The car was slowed down to eight to ten miles per hour and appellee testifies that all along between the two crossings he was looking from east to west and saw nothing and just a few feet before his car came to the south rail he again looked in both directions and saw nothing. Just as his front wheels got over the rail he looked west and a big black object, like a building, loomed up and struck them. In most particulars appellee is corroborated by the witnesses Matt Burnett and his wife, Mary. All saw the rails on the track, the danger sign and knew they were coming to a railroad and knew of the existence of the railroad as they had traveled the road before. All of them testify to the same facts with a remarkable corroboration in detail and with successive reiterations. All testify that they heard no bell rung or whistle blown until after the accident, and that there was no light of any kind at the rear end of the tender.

Appellee presented a witness, Russell Linton, who, accompanied by Roberta E. Gardner, at the time of the accident was driving a Studebaker car south on Kennedy avenue, and who saw the engine and tender just as Linton came under the subway, 1,500 feet north of the place of the accident. Linton testified that he saw the headlight plainly and the engine just before it backed to the crossing, when he was 1,500 feet away. He also upon approaching the crossing saw a railroad cross-arm with a light on it on the right-hand side of the road, similar to the one on the south side of the intersection on the east side of the road. He further testified that he did not see a small white bull’s eye or blizzard light burning on the east end of the tender; and testified that when he first came under the viaduct he was conscious that an engine was moving upon the tracks from the fact that its movement was shutting off the lights. Linton had testified that no whistle was blown or bell sounded. Later he modified his testimony by identifying a written instrument he had made to the effect that if a whistle was blown or bell rung he did not hear either. Linton was 23 years of age, a student at Purdue University studying electrical engineering, and in his vacations employed by the Inland Steel Company of Gary.

Eoberta E. Gardner testified she was riding with the witness Linton, sitting at his right. When they came out of the viaduct she saw the tender of the engine. She states she did not see the headlight of the engine and heard no whistle blow or bell ring. She did see the headlights of appellee’s automobile and saw the tender of the engine come upon the highway 1,500 feet away.

The declaration charged and the testimony confirmed that on the east end of the tender, facing the highway, there was a bull’s eye light and that it was burning, but it is charged that it was not of sufficient size and intensity to be a sufficient warning of the approach of the engine and tender. This substantially covers the testimony of appellee upon which the count for a wilful or wanton injury is based and upon which the court must determine whether the fifth count should have beén withdrawn from, the consideration of the jury.

There was the further testimony of the railroad employees, the engineer, fireman and brakeman, who testified that the light to the rear of the tender was burning, and that it could be seen on the night in question for a distance of 50 feet, and on a clear night for a distance of half a mile. This testimony further showed that the whistle was blown at a point 350 feet west from the crossing, two long and two short blasts; that the automatic bell was being rung continually as the engine approached the crossing and until the accident, when the engineer shut it off. The engineer testified that the first knowledge he had that there was an automobile anywhere near him was when the fireman stated that a car was coming fast and he shut off his engine and drifted and as they came near to the crossing the fireman said, “He is going across.” The engineer states that he immediately put on the brakes and about that time the crash occurred. The conductor went down to the yards with the sixty cars, but did not return to the train. He testifies that when he left the engine the light at the rear of the tender was burning. There is no testimony in the record as to the speed of the engine and tender. It is peculiar in this case that appellee should charge in his declaration that a light was burning at the rear of the tender, but not of sufficient intensity, and then furnish testimony that there was no light on the tender at all. In the end, even the testimony of appellee’s witnesses is modified to show the presence of the light. It appears to this court impossible that Linton, when he was 1,500 feet away, could see and sense the presence of an engine and tender before it arrived at the crossing, or just as it was coming up to the avenue, and appellee could know nothing about it when' the tender was not over 10 feet distant from him with a light burning at its rear. No statute or ordinance of the State of Indiana is cited or pleaded attaching any duty or obligation upon the part of appellant to safeguard this crossing. It -is contended by appellee, that the injury having occurred in another State, that the courts of Illinois will assume that the law of the foreign State is the common law, citing: Opp v. Pryor, 294 Ill. 538, 541; Woodbury v. U. S. Casualty Co., 284 Ill. 227; Schlee v. Guckenheimer, 179 Ill. 593, 596, and Noyes v. Hines, 220 Ill. App. 409, 415. This is a correct statement of the rule, but it is also the rule that one State will not enforce the laws of a sister State to recover a penalty for an act committed in a sister State. (Sherman v. Gassett, 9 Ill. 521; Raisor v. Chicago & A. R. Co., 215 Ill. 47; Missouri River Tel. Co. v. First Nat. Bank of Sioux City, 74 Ill. 217; Shedd v. Moran, 10 Ill. App. 618.)

It is in accordance with the public policy of this State, in civil suits for injuries caused in Illinois by wilful and wanton acts, to permit plaintiffs to recover punitive damages that others may be warned to avoid such transgressions. It is not in accord with the public policy of this State to allow such damages where the wilful and wanton acts were committed in another State. In the Sherman case, supra, the defendants in a civil suit sought the advantage of a forfeiture for usury under the laws of Massachusetts. In Missouri River Tel. Co. v. First Nat. Bank of Sioux City, supra, plaintiff sought to recover from an Iowa Bank, sued in this State, double the sum as a penalty of the amount of usurious interest collected by defendant from plaintiff in the State of Iowa, under a penalty clause in the laws of the United States. The court says: ' “There can be no pretense that any law of this State has been violated, as it is averred that the transaction occurred beyond the limits of the jurisdiction of the courts in this State. And it is equally true that both the governments of the United States and Iowa are wholly independent of this State. They severally have all of the attributes .of sovereignty essential to the enactment and enforcement of laws for the government of their citizens within the limits of their constitutions. And in accordance with long settled rules of law, this State cannot enforce their criminal or penal laws. See Sherman v. Gassett, 4 Gilm. 521.”

In Raisor v. Chicago & A. R. Co., supra, the court held:

“ ‘Appellant’s counsel rely on Huntington v. Attrill, 146 U. S. 657, and quote the following from the opinion in that case: “The rule that courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes.” Minor, in his work on Conflict of Laws, (p. 22, note 3,) criticises much that is said in the opinion, and on page 24 says: “So far as private international law is concerned it matters not whether that punishment is inflicted through the instrumentality of an ordinary prosecution by the State’s officers for a fine, or through the medium of a civil action by the party injured for penal damages. In substance it is an act of punishment. It is punitive in either case.” Such -seems to be the view of the court in Missouri River Tel. Co. v. National Bank, 74 Ill. 218.’”

There is no rule of common law determining the conflict of laws between the states or permitting a citizen of Indiana to recover in this State punitive damages for a wilful and wanton injury committed in another State. The declaration charges that the engine was running at the rate of thirty miles per hour. This is not proven. It is charged that one hundred vehicles per hour pass over this crossing in the nighttime. There was no proof to this effect. Only two vehicles were on this highway on the night in question during an interim of fifteen to twenty minutes. The statutes of this State would have required appellant to have blown the whistle or to have rung the bell upon approaching the crossing in question. Whether appellant was derelict in this respect or even was running its engine at too high a rate of speed would not have been sufficient, standing alone, to convict appellant of a wilful or wanton'injury. (Browne v. Siegel, Cooper & Co., 191 Ill. 226; Powell v. Kempton, 231 Ill. App. 380, 384; Lamarre v. Cleveland, C., C. & St. L. Ry. Co., 217 Ill. App. 296, 305.)

It was held in Morgan v. New York Central R. Co., 327 Ill. 339, 343, that the negative testimony-.of witnesses who did not hear the whistle sounded “did not tend to raise an issue of fact as to whether the whistle was blown or not, with the positive testimony tlq.at the whistle was sounded.” It must be concluded as a fact, from the record in this case from the testimony of the engineer, fireman and brakeman, that the whistle was blown two long blasts and two short blasts, and that the bell was ringing continuously, on the approach to the crossing, sufficiently to show that appellant’s employees were attempting to warn appellee and others of danger. Further, the testimony was that the blizzard light at the rear of the tender was an electric light, four inches in diameter, with a reflector larger than the headlight on an automobile. In any event, it is not shown that any such statutory duty rested upon appellant in the State of Indiana. The most that appellee could have charged and upon which he could have maintained a recovery, would have been negligence at common law, unless appellee had pleaded some rule or statute of the State of Indiana.

But appellee complains in his declaration that “there were stationed there no gates, watchmen, bells or like means of warning to appraise any such members of such public, so traveling along said avenue,” etc., and thereupon appellee contends that it was an extrahazardous crossing and appellant wilfully or wantonly injured appellee. That result does not follow. It may be that negligence might result from some such inactivity, but a wilful and wanton injury comprehends a different state of facts. As Mr. Justice Hurd said in Lamarre v. Cleveland, C., C. & St. L. Ry. Co., supra:

“ ‘In order that one may be held guilty of wilful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. In order to establish wantonness it is not necessary to show an entire want of care. The violation of a statute does not constitute a wilful wrong. A wilful injury will not be inferred when the result may be reasonably attributed to negligence or inattention.’ 29 Cyc. 510.”

Appellee stopped his car at the' Michigan Central crossing 350 feet to the south. He knew that it was a dark night and if it was as dark as the witnesses contend, it was appellee’s duty, when he saw the danger sign and knew he was approaching a railway crossing, to stop and listen. Many of the facts in this case are subject to the rules laid down in De Bow v. Cleveland, C., C. & St. L. Ry. Co., 245 Ill. App. 158, 164:

“If a person looks he is supposed to look for the purpose of seeing, and if the object is in plain sight and he apparently looks but does not see it, it is manifest he does not do what he appears to do. The law will not tolerate the absurdity of allowing a person to testify that he looked and did not see the train when the view was unobstructed and where, if he had properly exercised his sight, he must have seen it. Such is the language of the courts in variant form in the following cases: Chicago, P. & St. L. Ry. Co. v. DeFreitas, 109 Ill. App. 104-106; Chicago & A. R. Co. v. Vremeister, 112 Ill. App. 346-351; Chicago, R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380-384; Toledo, St. L. & W. R. Co. v. Gallagher, 109 Ill. App. 67; Kennedy v. Alton, G. & St. L. Traction Co., 180 Ill. App. 146-149. There may be such inherent improbability1 in the testimony of a witness as to authorize a court or jury to disregard it, even though there is no contradictory evidence by other witnesses. Kuehne v. Malach, 286 Ill. 120; Stephens v. Hoffman, 275 Ill. 497; Kennedy v. Modern Woodmen of America, 243 Ill. 560.”

The conditions on the night in question must be determined by the proofs submitted by appellee’s witness, Linton. The case then stated is, without the proofs on the part of appellant, that appellant’s employees were moving an engine and tender along a known railway toward a crossing at a very slow and moderate rate of speed. They were moving backward and in view of the public highway. There was a bull’s eye light at the back end of the tender that could be seen for 50 feet. The engine and tender made a grinding and rumbling noise that one at the crossing could not avoid hearing if he had stopped and listened, at any time when the engine was within 50 or 100 feet away from the crossing. Appellant’s employees, it may be presumed, saw appellee with his car approaching and relied and depended upon the fact that appellee would stop at the crossing as the lights and danger signal gave him warning. It was the duty of appellee to stop at the danger signal at the crossing until he could see and know that the crossing was clear. As the court said in Bartlett v. Wabash R. Co., 220 Ill. 163, 166: “Daily was not required to stop the train so soon as he saw Stampfer upon the track, but had the right to assume at that time he would act as a reasonably prudent man and leave the track to avoid being run over by the moving train, and so soon as Daily recovered Stampfer did not intend to leave the track and was in a perilous situation, he was only required to use reasonable care to avoid injuring him. ’ ’

It is elementary in this State that it is the duty of one approaching a railroad crossing, a known place of danger, to use due care and caution — to stop, look and listen to see that the track is clear, and that it is not the duty of railroads to stop their trains at crossings except to avoid a known or probable accident. If darkness entirely obliterates view, the traveler on the highway should stop and listen. To contend that failure to ring a bell or blow a whistle, even under the conditions stated with no other attending circumstances, argues a wilful and wanton injury, is no more forceful than the contention that appellee’s failure to stop, look and listen at the crossing arañes a wilful and wanton purpose' on the part of appellee to derail the train.

This case differs from Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, 21, in which the engineer, running a train in a heavy fog, knowingly disobeyed a plain signal of the road, upon which signal all traffic on the road had the right to rely, and wantonly precipitated a collision and caused injury. This case differs materially from Neice v. Chicago & Alton R. Co., 254 Ill. 595, 603, and kindred cases, in that the crossing in question in the case at bar was not a place provided by the railroad for the use of the public in the transaction of its business, where persons have a right to be for legitimate purposes. The crossing in question was a place provided for the mutual accommodation of appellant and those using the public highway, in which each have mutual rights and in which, each was bound by mutual obligations.

In Brown v. Illinois Terminal Co., 319 Ill. 326, 331, the rule is stated: “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness of ordinary care. (Lake Shore & Michigan Southern Ry. Co. v. Bodemer, 139 Ill. 596; Heidenreich v. Bremer, 260 id. 439; Illinois Central Railroad Co. v. Leiner, 202 id. 624.)”

It will not do to say that the State should have required a watchman, gates or bells at this crossing, as under the laws of this State the administration had a right to do. That is an administrative function with which courts have nothing to do. What is the evidence or facts and circumstances proven in this case that brings appellant within the rule of having committed a wilful or wanton injury? No proofs of any kind are offered by appellee tending to show how or in what manner appellant’s employees operated the engine, its speed or other directions, except witnesses testify that the whistle was not blown or the bell rang and the night was dark. The whole situation presents a case, regardless of the specific acts of negligence charged, upon which we do not pass, where appellant’s employees relied and depended upon appellee stopping at the crossing for which he, evidently, slowed down the speed of his car and when they found that appellee was not going to stop at the crossing appellant’s employees did everything in their power to avert the injury ; they stopped the engine before it had run its length. We find no proofs in this record which warrant the court in sustaining the verdict and judgment, based upon a wilful or wanton injury. The judgment is based upon the fifth count charging a wilful and wanton injury, as well as upon the other counts. That constitutes error. The court should have withdrawn the fifth count from the consideration of the jury. We hold under the proofs submitted that appellee did not establish a cause of action on the fifth count.

But it is contended that “the rule has long been established that common law and wilful counts may be joined and that if the evidence supports one count which is good, the fact that the evidence did not support the other counts is not a ground for reversal,” citing Corpus Juris, vol. 45, page 1090, sec. 663; Scott v. Parlin & Orendorff Co., 245 Ill. 460; Olson v. Kelly Coal Co., 236 Ill. 502, and Colesar v. Star Coal Co., 255 Ill. 532. In the citation from Corpus Juris no references are made to any of the cases in this State, and the most that can be gleaned from that authority is that plaintiff is entitled to have both theories submitted to the jury. In Scott v. Parlin & Orendorff Co., supra, the declaration consisted in counts for negligence only; and in Olson v. Kelly Coal Co., supra, and Colesar v. Star Coal Co., supra, the declaration in each case consisted of counts charging a statutory violation of the Mining Act, joined with counts of negligence. In the violation of the Mining Act, under the terms of the act the counts constructively term the charge a wilful violation of the act, but a wilful and wanton injury was not charged in either case cited and all of the counts in each declaration were of equal standing and import and proven by the same set of facts. It would seem to be elementary that in a declaration charging negligence, and containing a wilful and wanton count, mere proof of negligence would not warrant a verdict including punitive and exemplary damages. The rule for which appellee contends does not apply in a case where the declaration alleges separate and independent offenses in the different counts. In Cotter v. Boston, R. B. & L. R. Co., 237 Mass. 68, 129 N. E. 426, 427, the court held: “It is argued by the plaintiff that wantonness and recklessness include negligence. Under our decisions, however, the difference between negligence, whether ordinary or gross, and conduct which is wilful, wanton in reckless disregard of the rights of others, is a difference in kind and not merely one of degree.” In Cleveland, C., C. & St. L. Ry. Co. v. Miller, 149 Ind. 490, 49 N. E. 445, 451, the court said: “There can be no middle ground between wilfulness and negligence, for, as we have seen, the authorities affirm that each of these elements is the opposite of the .other. Consequently, when the facts in a given case show that the injury of which the plaintiff complains is the result of the negligent act or conduct of the defendant, then the fact that such negligence may be said to be of such a degree as to be considered ‘gross negligence’ cannot support a charge that the injury was wilfully or intentionally inflicted by the party accused. This rule seems to be firmly settled in this jurisdiction.” The court citing numérous cases. A verdict finding the defendant guilty of negligence in effect is a verdict finding the defendant not guilty of wilfulness and wantonness. Jeneary v Chicago & I. Traction Co., 306 Ill. 392, 398. The verdict is not responsive to the issues in the case. The red light at the Michigan Central crossing, requiring cars to stop, indicates there was some public supervision over the crossings upon this highway. If there were one thousand lights from 9 to 15 feet high from the ground, on moving and standing cars, building and posts to the westward and northwestward of appellant’s moving engine, and the ground was level, it is not made plain why appellee, by the engine passing the lights, did not have the same opportunity to discover the engine moving that made Linton aware of its movement 1,500 feet away. Some of these lights were not over 1,300 feet, one-fourth of a mile distant. If there were but a part of one hundred engines in motion that night in the vicinity of appellee in the yards in question, it is not strange that appellee did not hear a particular whistle blown or bell rung. There must have been a continuous hum of bells and whistles from which appellee, over the numerous track crossings, should have felt a greater sense of danger. The verdict being general and finding the defendant guilty, as charged in the declaration, which contains the separate and independent charge of a wilful and wanton act, we hold that it was reversible error for the court to deny appellant’s motion to withdraw the fifth count from the cnasideration of the jury.

Such other errors as appellant assigns which have merit doubtless will be corrected upon another trial. For the reasons stated, the judgment of the circuit court of Vermilion county is reversed and the cause remanded for another trial.

Reversed and remanded.

On an opinion heretofore filed - [ante, p. 162] and a petition for rehearing presented, the court modifies the opinion and adheres to the conclusion there reached, and the petition for a rehearing is denied,


author: Mr. Presiding Justice Holdom

text:
    First District.
    Rasmussen & Company, appellee, v. Martin Matheson, trading as Matheson Realty Company, appellant.
    Gen. No. 33,138.
    Opinion filed May 29, 1929.
    Isaac B. Lipson and Randolph Thornton, for appellant; Randolph Thornton, of counsel. L. A. Sherwin, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Joseph F. Hasman, appellant, v. John F. Zidlicky and Henry Calek, appellees.
    Gen. No. 33,175.
    Opinion filed May 29, 1929.
    Charles J. Michal, for appellant; William Ritchie, of counsel. Charles Vlaeh, for appellees; Andrew J. O’Donnell, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Charles W. Spahr, Jr., appellee, v. Louis E. Nelson, appellant.
    Gen. No. 33,187.
    Opinion filed May 29, 1929.
    Anderson & Anderson, for appellant. No appearance for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Elenora Peyton (plaintiff), appellee, v. Metropolitan Life Insurance Company (defendant), appellant.
    Gen. No. 33,293.

      Opinion filed May 29, 1929.
    Hoyne, O’Connor & Rubinkam, for appellant. Packard, Barnes & MeCaughey, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    William B. Austin v. Grace Dorothy Ehrenstrom et al., on appeal of William B. Austin, respondent-appellant, v. John A. Hoglund, appellee.
    Gen. No. 32,996.
    Opinion filed May 29, 1929.
    Deming, Jarrett & Mulfinger, for appellant; Edwin K. Walker, of counsel. Henry P. Heizer, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    The Engineering Agency, Inc. (plaintiff) appellee, v. Robert H. Ford, Jr., defendant, on appeal of The Pacific Mutual Life Insurance Company of California, appellant.
    Gen. No. 33,083.
    Opinion filed May 29, 1929.
    McKinley & Killinger, for appellant; Henry A. Steinberg, of counsel. Clarence A. Samuel, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Audrey Lane, appellee, v. Peter Tutules and William Kaplan, appellants.
    Gen. No. 33,092.
    Opinion filed May 29, 1929.
    Morris K. Levinson, for appellants. Marx Loehwing and John T. Murray, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    The People of the State of Illinois, defendant in error, v. Christ Lambos, plaintiff in error.
    Gen. NO. 33,179.
    Opinion filed May 29, 1929.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Nicholas Pappas, plaintiff in error.
    Gen. No. 33,180.
    Opinion filed May 29, 1929.
    Prank C. Hill, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson, Assistant State’s Attorney, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Aranell Brown, plaintiff in error.
    Gen. No. 33,181.
    Opinion filed May 29, 1929.
    Prank C. Hill, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in,error; Edw. E. Wilson, Assistant State’s Attorney, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Fred G. Schweizer, appellee, v. W. F. Seidel and L. A. Seidel, trading as Ad. Seidel & Sons, appellants.
    Gen. No. 33,193.
    Opinion filed May 29, 1929.
    Henry S. Blum, for appellants; Reuben S. Placks, of counsel. J. Lester Williams, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Hollander Express & Van Co., appellee, v. Sam Simon, impleaded with Edward Simon, appellant.
    Gen. No. 33,218.
    Opinion filed May 29, 1929.
    Lambert K. Hayes, for appellant. James M. Devaney, for appellee; Willis E. Thorne, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Price Realty Securities Company, plaintiff-appellant, v. Julius Benke, defendant-appellee.
    Gen. No. 33,287.

      Opinion filed May 29, 1929.
    Julius L. Kabalcer, for appellant. Adams & Adams, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Blue Island First Securities Company et al., complainants and appellees, v. Edward J. Patterson et al., defendants, on appeal of Francis J. Sullivan, appellant.
    Gen. No. 33,195.
    Opinion filed May 31, 1929.
    Henry P. Heizer, for appellant. Deneen, Healy & Lee, for appellees; Roy Massena, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Eva E. Wood, appellee, v. Mike Dragash, appellant.
    Gen. No. 33,220.
    Opinion filed May 31, 1929.
    Cohen & Berke, for appellant. Estelle M.. Wells, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Harris B. Greenberg, appellant, v. Martin A. Howell, appellee.
    Gen. No. 33,232.
    Opinion filed May 31, 1929.
    Isidore Fried, for appellant; Bernard A. Stol, of counsel. Hutson & Traeger, for appellee; John Donald Bolger, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Theodore Kirchen and Grover F. Kirchen, trading as Kirchen Brothers, defendants in error, v. Kathryn Gleason, administratrix of the estate of T. C. Gleason, deceased, plaintiff in error.
    Gen. No. 33,241.
    Opinion filed May 31, 1929.
    P. F. Murray, for plaintiff in error. Daniel Webster, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    William DeSent, appellee, v. Sam Berkowitz, appellant.
    Gen. No. 33,264.
    Opinion filed May 31, 1929.
    Isadore M. Leavitt, for appellant. Harry X. Cole, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Edwin Seipp et al., appellees, v. C. E. McNeill & Company, appellant.
    Gen. No. 33,274.
    Opinion filed May 31, 1929.
    Benjamin I. Morris and Morris A. Mills, for appellant; Morris A. Mills, of counsel. Poppenhusen, Johnston, Thompson & Cole, for appellees; John B. Schmidt and Albert K. Orsehel, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    A. B. C. Pattern & Foundry Company, appellant, v. B. U. Hills, appellee.
    Gen. No. 33,283.
    Opinion filed May 31, 1929.
    Meyer Shapiro, for appellant. Schwartz & Cooper, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Joseph Kunickas, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 33,292.
    Opinion filed May 31, 1929.
    Hoyne, O’Connor & Rubinkam, for appellant. Victor Frohlieh and Charles Frohlieh, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr, Presiding Justice Gridley

text:
    Helen Gudinas and Albina Manstavich, appellees, v. Globe Mutual Life Insurance Company of Chicago, appellant.
    Gen. No. 33,313.
    Opinion filed May 31, 1929.
    A. W. Fulton and S. J. Fulton, for appellant. Pines, Morse & Stein and John B. Borden, for appellees; Clarence T. Morse, of counsel.
   Mr, Presiding Justice Gridley

delivered the opinion of the court.


text:
    Gladys Mary Reardon, appellee, v. Austin John Reardon, appellant.
    Gen. No. 33,335.
    Opinion filed May 31, 1929.
    Rehearing denied June 11, 1929.
    William J. Grace, for appellant. Mason S. Sullivan and Andrew Donovan, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    William C. Hartray, administrator of the estate of Ralph Optie, deceased, appellee, v. Bowman Dairy Company, appellant.
    Gen. No. 33,344.
    Opinion filed May 31, 1929.
    Montgomery, Hart & Smith, for appellant. C. Helmer Johnson, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Martin Howe, appellee, v. George W. Griffen, appellant.
    Gen. No. 33,365.
    Opinion filed May 31, 1929.
    Davis & Napier, by W. C. Napier, for appellant. No appearance for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Northern Trust Company, complainant, v. A. A. Allen (defendant), appellee. Sam Lichtenstein (defendant), appellant.
    Gen. No. 33,091.
    Opinion filed May 31, 1929.
    Rehearing denied June 11, 1929.
    Morris Sider and Morris K. Levinson, for appellant. Carl F. Lund, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Harry W. Standidge, plaintiff in error, v. City Hall Square Company, defendant in error.
    Gen. No. 33,173.

      Opinion filed May 31, 1929.
    Rehearing denied and opinion modified June 11, 1929.
    James F. Bishop and A. A. Worsley, for plaintiS in error. Mayer, Meyer, Austrian & Flatt, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    J. T. Fleming, appellee, v. Charles A. Steinmann and Rosa M. Steinmann, appellants.
    Gen. No. 33,271.
    Opinion filed May 31, 1929.
    Ossian Cameron and Edward H. S. Martin, for appellants. W. Scott Hodges and Cavender, Milchrist & Kaiser, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Glader, Incorporated, appellant, v. C. J. Kennedy, appellee.
    Gen. No. 33,289.
    Opinion filed May 31, 1929.
    Clarence A. Samuel, for appellant. Royal W. Irwin, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Automobile Supply Company, appellee, v. Scene-In-Action Corporation, appellant.
    Gen. No. 33,298.
    Opinion filed May 31, 1929.
    Rehearing denied June 11, 1929.
    Albert Sabath, for appellant; Charles Hudson, of counsel. Burry, Johnstone, Peters & Dixon, for appellee; John W. Kearns, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    In the matter of the estate of Kaspar G. Schmidt, deceased et al., executors of the last will and testament of Barbara E. Kellmer, deceased, appellants, v. George K. Schmidt, individually and as executor of the last will and testament of Kaspar G. Schmidt, deceased, appellee.
    Gen. No. 33,315.

      Opinion filed May 31, 1929.
    Rehearing denied June 11, 1929.
    Austin L. Wyman, for appellants. Miller, Gorham & Wales, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Charles Forman and Eli Metcoff, appellees, v. Fred Becklenberg et al., defendants, on appeal of Sol Rubin, appellant.
    Gen. No. 33,319.
    Opinion filed May 31, 1929.
    Clark & Clark and Edward M. Keating, for appellant. Gallagher, Shulman & Abrams, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Max L. Satt, appellee, v. Burke’s Storage Company, appellant.
    Gen. No. 33,331.
    Opinion filed May 31, 1929.
    Frederick C. Harbour, for appellant; Harvey T. Fletcher, of .counsel. Perlman, Goodman & Scolnik, for appellee; Bernard T. Heeht, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    E. B. Zoomaya, appellee, v. E. Yohanna, appellant.
    Gen. No. 33,341.
    Opinion filed May 31, 1929.
    Harry G. Hershenson, for appellant; Edward Hershenson, of counsel. Earl J. Walker, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Horwitz & Dorfman, appellees, v. Myron E. Wisch, appellant.
    Gen. No. 33,350.
    Opinion filed May 31, 1929.
    Nathan Einhorn, for appellant; Sidney R. Tarkoff, of counsel. Samuels, Costello & Greenberg and Elmer M. Leesman, for appellees,
   Mr. Justice Barnes

delivered the opinion of the cpuN,


author: Mr. Justice Scanlan

text:
    The People of the State of Illinois ex rel. George Gary, appellee, v. William Hale Thompson et al., appellants.
    Gen. No. 33,109.
    Opinion filed May 31, 1929.
    Samuel A. Ettelson, Corporation Counsel, for appellants; Michael L. Rosinia, E. Marshall Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. John M. Lowery, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Samuel M. McDonald, appellee, v. Employers’ Liability Assurance Corporation, Limited, appellant.
    Gen. No. 33,208.
    Opinion filed May 31, 1929.
    Rehearing denied June 11, 1929.
    John Clark Baker, for appellant. C. Helmer Johnson, for appellee; Arthur H. Chetlain, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    M. Beck et al., appellants, v. Carrie J. Hines, appellee.
    Gen. No. 33,268.
    Opinion filed May 31, 1929.
    Lazar H. Gladstone, for appellants. No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Clara F. Bass, appellant, v. Charles A. Allen, Jr., appellee.
    Gen. No. 33,286.
    Opinion filed May 31, 1929.
    Gordon, Adams & Pierce, for appellant; Robert McCormick Adams and Thomas S. Edmonds, of counsel. Miller, Gorham & Wales, for appellee; Edward R. Adams, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Neanie W. Armbrecht, appellant, v. Clayton C. Pickett and Edward Olsen, appellees.
    Gen. No. 33,295.

      Opinion filed May 31, 1929.
    Albert S. Louer, for appellant; Arthur Abraham, of counsel. Lowenthal & Munns, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Southgate Brokerage Company, trading as Southgate Produce Company, appellant, v. Carl and W. J. Piowaty, a corporation, appellee.
    Gen. No. 33,304.
    Opinion filed May 31, 1929.
    Winter, Stevens, Risk & Griffith, for appellant; George M. Stevens, Julian C. Risk and Melvin L. Griffith, of counsel. Hall, Spitz & Rooks, for appellee; Irvin Rooks and Edward Blackman, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Oscar Rubin, appellee, v. Louis Kaplan and Jacob Kaplan, appellants.
    Gen. No. 33,338.
    Opinion filed May 31, 1929.
    Morris K. Levinson, for appellants. Clark & Clark, for appellee; Russell S. Clark, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    William F. Connery, appellee, v. J. W. McCormack Company, Inc., appellant.
    Gen. No. 33,368.
    Opinion filed May 31, 1929.
    S. G. Lee, for appellant; Edgar Bernhard, of counsel. Joseph M. Connery and J. J. Cooke, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Florence C. Ferguson, appellee, v. Joseph Stulgisski and Stanley Doviat, defendants, on appeal of Stanley Doviat, appellant.
    Gen. No. 33,324.
    Opinion filed June 24, 1929.
    Daniel Riley McMaster, for appellant. A. B. Litow and Matthew J. O’Brien, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Anne Raymond, appellee, v. Central Metallic Casket Company, appellant.
    Gen. No. 33,441.
    Opinion filed June 24, 1929.
    Rehearing denied July 8, 1929.
    Walter L. Wenger and Walter' J. Miller, for appellant. Wolfsohn & Fireman, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Joseph Fisher, appellee, v. Joseph Neuberg, appellant.
    Gen. No. 33,459.
    Opinion filed June 24, 1929.
    Charles V. Falkenberg, for appellant. No appearance for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    E. Berg, appellee, v. Charles M. Field, appellant.
    Gen. No. 33,468.
    Opinion filed June 24, 1929.
    Sherman & Lewis, for appellant; Preston Clark, of counsel. William R. Wiley, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Mrs. W. R. McCullough, appellee, v. Charles A. White, appellant.
    Gen. No. 33,492.
    Opinion filed June 24, 1929.
    William L. Dawson, for appellant. No appearance for appellee.
   Mr. Presiding Justice MeSurely

delivered -the opinion of the court.


author: Mr. Justice Matehett

text:
    Martin Langguth, appellee, v. Paul Schulte, appellant.
    Gen. No. 33,318.
    Opinion filed June 24, 1929.
    Rehearing denied July 8, 1929.
    Robert D. Melick, for appellant. .Samuel L. Cohen and M. K. Levinson, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court,


author: Mr. Justice Matchett

text:
    Charles A. Anderson, appellant, v. Lake Michigan Building Corporation et al., appellees.
    Gen. No. 33,346.
    Opinion filed June 24, 1929.
    Kirkland, Fleming, Green & Martin, for appellant; Jay Fred Reeve, David Jaeker and William H. Symmes, of counsel. Cassels, Potter & Bentley, for appellees; Ralph F. Potter and George C. Bunge, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    William P. Meyers, plaintiff in error, v. Chicago City Railway Company et al., defendants in error.
    Gen. No. 33,385.
    Opinion filed June 24, 1929.
    J. Kent Greene, for plaintiff in error, George W. Miller and Arthur J. Donovan, for defendants in error: Frank L. Kriete and John E. Kehoe, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    George Vogel, appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellant.
    Gen. No. 33,403.
    Opinion filed June 24, 1929.
    Glennon, Cary, Walker & Murray, for appellant; Sidney C.°Murray and F. W. Flott, of counsel, J. V. Delaney, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John J. Collins, appellant, v. Minnie Freer, appellee.
    Gen. No. 33,435.
    Opinion filed June 24, 1929.
    Marx Loehwing, for appellant: John T. Murray, of counsel. James C. McGloon, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Henry H. Smith, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 33,291.

      Opinion filed June 24, 1929.
    Rehearing denied July 8, 1929.
    Hoyne, O’Connor & Rubinkam, for appellant. John Gutkneeht, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    William Taylor, appellee, v. Mary F. Tothill, appellant.
    Gen. No. 33,300.
    Opinion filed June 24, 1929.
    K. B. Czarneeki, for appellant. Enright & Enright, for appellee; Charles S. Harvey, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Andrew J. Thoma, a minor, by Charles F. Thoma, his father and next friend, plaintiff in error, v. N. J. Druecker Company, defendant in error.
    Gen. No. 33,361.
    Opinion filed June 24, 1929.
    John A. Bloomingston, for plaintiff in error. Eugene P. Kealy and Murphy O.- Tate, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    W. C. Handley, appellee, v. Theodor Klopp and Bertha Klopp, appellants.
    Gen. No. 33,296.
    Opinion filed June 26, 1929.
    William G. Thon, for appellants. John B. King, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Louis Feinglass, appellant, v. Maurice Alschuler et al., appellees.
    Gen. No. 33,323.
    Opinion filed June 26, 1929.
    Aaron Soble, William Feldman and Abraham Feldman, for appellant. Maurice Alschuler and Julius H. Miner, for certain appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Cecilia Kendziora, appellee, v. Morris Albin, appellant.
    Gen. No. 33,332.
    Opinion filed June 26, 1929.
    Max C. Liss and H. A. Kaufman, for appellant. ShaefEer & Foster, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Peter E. Murphy and Margaret A. Murphy for use of William W. Murphy, appellees, v. Marquette Park State Bank, appellant.
    Gen. No. 33,224.
    Opinion filed June 26, 1929.
    Litsinger, Healy & Reid, for appellant Marquette Park State Bank. No appearance for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Alex Nory, plaintiff in error, v. Peter Nickias et al., defendants in error.
    Gen. No. 33,260.
    Opinion filed June 26, 1929.
    Mort D. & Frank Goldberg, for plaintiff in error; Mort D. Goldberg, of counsel. Kamfner, Horwitz, Halligan & Daniels, for defendants in error; Edwin A. Halligan, of counsel.
   Mr. Justice Holdom

delivered the. opinion of the court.


text:
    Mayme Hildebrandt, formerly Mayme Saurin, appellee, v. City of Chicago, appellant.
    Gen. No. 33,302.
    Opinion filed June 26, 1929.
    Samuel A. Ettelson, Corporation Counsel and William D. Saltiel, City Attorney, for appellant; Abraham E. Golan, Wilbert M. Foley, Assistant City Attorneys, E. Marshall Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. William Gillespie, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Ryner

text:
    Benjamin E. Langguth, appellee, v. Edward Breither, appellant.
    Gen. No. 33,144.

      Opinion filed June 26, 1929.
    Perry B. Brelin, for appellant; Floyd E. Britton, of counsel. No appearance for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Samuel Moreell, Jr., appellee, v. G. Frank Croissant, appellant.
    Gen. No. 33,212.
    Opinion filed June 26, 1929.
    Robert E. Owens and John A. Brown, for appellant. Stone, McLaughlin & Adams, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Second District.
    Illinois Refining Company, appellee, v. Frank P. Welch et al., appellants.
    Gen. No. 7,983.
    Opinion filed May 23, 1929.
    R. W. Olmsted, for appellants. Connelly, Weld, Walker, Searle & Crampton and A. B. Honnold, for appellee Illinois Refining Company.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Jones

text:
    Olga McNeil Smeker, appellee, v. Joe Smeker, appellant.
    Gen. No. 8,017.
    Opinion filed June 24, 1929.
    C. W. Middlekauff and Louis F. Reinhold, for appellant. Louis H. Burrell and Harold D. James, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    George Roberts, appellee, v. Ora A. Barnewolt et al., appellants.
    Gen. No. 8,026.

      Opinion filed June 24, 1929.
    C. E. McNemar and Clarence D. Murphy, for appellants. Chester F. Barnett and Henry E. Pratt, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Peoria Motor Club, appellee, v. Motorists Association of Illinois, appellant.
    Gen. No. 8,028.
    Opinion filed June 26, 1929.
    H. A. Blair and Roseoe Herget, for appellant. Clarence W. Heyl, for appellee; Heyl & Heyl, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    Third District.
    Dick & Brothers Quincy Brewing Company, appellee, v. City of Quincy, appellant.
    Gen. No. 8,174.
    Opinion filed January 25, 1928.
    Rehearing denied April 12, 1928.
    William Sehlagenhauf, for appellants. Rolla Babcock, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Per curiam.

text:
    J. E. Hogan and L. W. Reese, trading as Hogan & Reese, appellees, v. Henry Ermovick, appellant.
    Gen. No. 8,237.
    Opinion filed July 2, 1928.
    Rehearing denied October 11, 1928.
    Leslie J. Taylor, Edward E. Adams and C. E. Flesher, for appellant. Hogan & Reese, pro se, and J. W. Coale, for appellees.
   Per curiam.


author: Mr. Presiding Justice Niehaus

text:
    Lunetta L. Danford, administratrix of the estate of M. L. Danford, deceased, for the use of D. L. Dunbar, appellee, v. W. H. Watkins et al., appellants.
    Gen. No. 8,235.

      Opinion filed October 15, 1928.
    Rehearing denied January 4, 1929.
    Leslie J. Taylor, Edward E. Adams and C. E. Elesher, for appellant. & Reese and John W. Coale, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Southern Surety Company, appellant, v. The Peoples State Bank of Astoria, appellee.
    Gen. No. 7,945.
    Opinion filed December 19, 1928.
    Original opinion reported in full in 243 Ill. App. 195.
    Gillespie & Gillespie, for appellant; Hugh J. Dobbs and Louis F. Gillespie, of counsel. Glenn Ratcliff and Robert E. White, for appellee.
   Per curiam.


text:
    Stella Lawrence, appellee, v. Charles J. Swift and Carrie F. Swift, appellants.
    Gen. No. 8,238.
    Opinion filed January 24, 1929.
    John G. Eriedmeyer and R. G. Hill, for appellants. Graham & Graham, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Jesse R. Smith, appellee, v. Village of Ripley, appellant.
    Gen. No. 8,251.
    Opinion filed January 24, 1929.
    D. L. Mourning, for appellant. Walter I. Manny and S. A. Hubbard, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Baptist Hardy, executor of the last will and testament of Zuleika Hardy, deceased et al., appellants, v. Clement v. Hardy et al., appellees.
    Gen. No. 8,255.
    Opinion filed January 24, 1929.
    O’Harra, O’Harra & O’Harra, for appellants. Charles J. Scofield, pro se, and Earl N. Bell, for certain appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    W. A. Sutton, administrator of the estate of Curtis Sutton, deceased, appellee, v. Village of Rankin, appellant.
    Gen. No. 8,269.
    Opinion filed January 24, 1929.
    Hall & Holaday and Acton, Acton & Snyder, for appellant; William M. Acton, of counsel. Bewman & Carter, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    William E. Harris, defendant in error, v. Catherine Bell, plaintiff in error.
    Gen. No. 8,273.
    Opinion filed January 24, 1929.
    W. St. J. Wines and J. A. Bloomingston, for plaintiff in error. George C. Dixon and Murphy & Hemphill; for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Wade C. Hise and Edna Hise, appellees, v. Omar L. Simpson and Violet B. Simpson, appellants.
    Gen. No. 8,274.
    Opinion filed January 24, 1929.
    McDavid, Monroe & Mann, for appellants. F. R. Wiley, for appellees; Howard Buallen, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Paul Farley, appellant, v. W. H. Diller and The Hurlbut Farmers Grain Company, appellees.
    Gen. No. 8,290.
    Opinion filed January 24, 1929.
    John G. Friedmeyer and John W. Sheehan, for appellant. Frank B. Trutter, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    American Slicing Machine Company, appellant, v. Jesse S. Bennett, appellee.
    Gen. No. 8,215.
    Opinion filed January 24, 1929.
    Mann & Coleman, for appellant. Graham & Dysert, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Oscar Seegar, defendant in error, v. Luther A. Perrine, plaintiff in error.
    Gen. No. 8,242.
    Opinion filed January 24, 1929.
    J. W. Templeman, for plaintiff in error. Jesse Peebles and Don M. Peebles, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Jerry T. Ring, appellant, v. Trumbull U. Smirl, appellee.
    Gen. No. 8,257.
    Opinion filed January 24, 1928.
    William T. Wilson, for appellant. H. P. Samuell and Walter W. Wright, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    P. J. Breen, appellant, v. Fred Rhoads, appellee.
    Gen. No. 8,263.
    Opinion filed January 24, 1929.
    James Vause, Jr. and Carl D. Niger, for appellant; J. I. Dilsaver, of counsel. R. S. Dyas, and Ben H. Redman, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    T. J. Sullivan, appellee, v. John J. Nicholson and Celea Nicholson, appellants.
    Gen. No. 8,267.
    Opinion filed January 24, 1929.
    Robert W. Martin and Donovan, Bray & Gray, for appellants. Gillespie, Burke & Gillespie, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Aloysius McLean and Hiram L. Deal, appellees, v. W. W. Bradford et al., appellants.
    Gen. No. 8,280.
    Opinion filed January 24, 1929.
    Hogan & Reese and John W. Coale, for appellants. Leslie J. Taylor, for appellees; C. E. Flesher, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    First National Bank of Ava, Illinois, appellee, v. S. E. Roley et al. A. C. Mautz, appellant.
    Gen. No. 8,286.
    Opinion filed January 24, 1929.
    John J. Baker, for appellant. W. F. Ellis and Geo. B. Rhoads, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.