text:
    J. F. Brennan et al., Trading as Stein, Alstrin & Company, Appellees, v. J. R. Persselli, Defendant. The National Bank of the Republic of Chicago, Garnishee. M. N. Elsenau Company and Harris Trust and Savings Bank, Appellants.
    Gen. No. 35,577.

      Opinion filed May 17, 1932.

      Lord, Lloyd & Bissell, for appellant Harris Trust and Savings Bank; John S. Lord and A. C. Wetter-storm, of counsel.
    C. L. Blankenship, for appellant M. N. Elsenau.
    Moses, Kennedy, Stein & Bachrach, for appellees; Walter Baohraoh, Seymour A. Greenblatt and Philip M. Gliqk, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.

February 14, 1931, in an action in assumpsit, appellees recovered a judgment for $24,850 against the defendant, J. B. Persselli. The action was commenced December 24, 1930, on which day an attachment in aid was issued in which the National Bank of the Bepublic of Chicago was made garnishee; it answered admitting an indebtedness to the defendant of $12,000 in the nature of a checking savings account, and set up that 'M. N. Elsenau Company and Harris Trust and Savings Bank, the appellants, both claimed some interest in the fund. The appellants filed intervening petitions, each claiming it was entitled to $11,000 of the fund. After a hearing the court dismissed the petitions of the appellants and entered judgment against the garnishee for $12,000. To reverse this judgment, M. N. Elsenau Company and Harris Trust and Savings Bank have perfected separate appeals, which were consolidated for a hearing.

The question for determination is whether $11,000 of the $12,000 admitted by the garnishee, the National Bank of the Bepublic of Chicago, to be owing to the defendant, J. B. Persselli, should be awarded to the appellees or to the Harris Trust and Savings Bank or to the M. N. Elsenau Company. The Harris Trust and Savings Bank claims that it is entitled to the $11,000 on the ground that the money came from the proceeds of a loan obtained from it by the use of counterfeit stock certificates and seeks to have Persselli held as a constructive trustee of his claim against The National Bank of the Republic of Chicago, while the M. N. Elsenau Company claims that because of misrepresentations made to it as to the genuineness of said stock certificates, or because of mutual mistake as to their genuineness, it is entitled to rescind the transaction and to recover the proceeds of the $11,000 check which was deposited to the account of Persselli with the garnishee bank.

The plaintiffs will be referred to as the appellees, the Harris Trust and Savings Bank as the bank, the M. N. Elsenau Company as the Elsenau Company, and the National Bank of the Republic as the garnishee.

The undisputed material facts are that in December, 1930, the Elsenau Company was engaged in selling stocks and securities in the building in which the bank is located and was a customer of the bank, and the appellees were stockbrokers of high standing and reputation among brokers and business men in the City of Chicago; that for more than a year prior to December 16, 1930, one Gus Anders had been a customer of Elsenau Company and had purchased from it upward of three-quarters of a million dollars worth of securities; he was also a customer of appellees and had bought and sold through them as his brokers, shares of stock of many different corporations, and had always met his commitments. December 16, 1930, Anders, at the request of Persselli, agreed to purchase from Persselli 1,000 shares of Fox Film Corporation class “A” common stock, represented by 20 certificates for 50 shares each, for $24,000, minus a discount of $1,000; that day Anders asked Elsenau Company if it would borrow from the bank $19,000 if he delivered to the Elsenau Company the stock certificates for said stock to be deposited with the bank as collateral; Elsenau Company agreed to make the loan from the bank if Anders delivered to it the certificates properly indorsed. December 18, 1930, without the knowledge of the appellees, Persselli delivered to Anders the 20 certificates and told him that they were certificates for 1,000 shares of Fox Film Corporation class “A” common stock and Anders paid Persselli $12,000; thereupon Anders indorsed each of the certificates and requested appellees to and they did guarantee his signature, believing the certificates were genuine; that Anders also believing them to be gen-nine delivered them to Elsenau Company, who believing them to be genuine, took them to the bank stating they were certificates for 1,000 shares of Fox Film Corporation class “A” common stock, and inquired if the bank would lend it $19,000 for a few days if it deposited with the bank these certificates as collateral; the bank accepted said certificates as collateral, lent Elsenau Company upon its note due January 8, 1931, $19,000, which said sum was credited to the checking account of Elsenau Company, and as a result the balance in that account then amounted to $19,572.65. This was the last deposit made by Elsenau Company in that account.

December 20, 1930, at the request of Anders, Elsenau Company issued its check for $11,000 payable to J. R. Persselli, drawn on its checking account with the bank, and gave it to Anders, who delivered it to Persselli as payment on account of his purchase of said stock certificates. December 22, 1930, Persselli indorsed this check and deposited it in his checking savings account with the garnishee, as a result of which the total deposits in his account with the garnishee amounted to $12,000. At no time thereafter did Persselli withdraw any of said $12,000. December 23,1930, the garnishee delivered the check for $11,000 to the bank and it was on that date paid to the garnishee and charged to the bank to the checking account of Elsenau Company.

December 24, 1930, the attachment writ was served on the garnishee. December 26, 1930, the bank learned for the first time that the certificates were forged and it made a demand on Elsenau Company to return the $19,000, and Elsenau Company, demanded that Anders return the funds he had received from it. Thereupon Anders told Persselli the certificates were forged and demanded that Persselli return the $23,000 he had received from the Elsenau Company; Anders also made demands on the garnishee for the proceeds of the $11,000 check on deposit in the account of Persselli on the ground that the same had been obtained by fraud.

It was stipulated that the 20 certificates were counterfeit and wholly worthless and that the bank would not have made the loan had it known that the certificates were forged, and had they been genuine they would have had a market value of $28,000.

The claim of an attaching creditor to protection is not of equal strength with that of a bona fide purchaser for a valuable consideration. (Schweizer v. Tracy, 76 Ill. 345, 352.) He only obtains the rights which the debtor has in the property at the time of the levy of the writ. He does not acquire or gain any greater rights than the latter himself had. (Welsh, Boyle & Co. v. First Nat. Bank, 228 Ill. 446, 449; Mattoon Grocery Co. v. Stuckemeyer & Olson, 326 Ill. 602, 605.) He parts with nothing in exchange for the property, nor does he take it in satisfaction of any precedent debt. The property is merely seized for the purpose of having it afterward so appropriated. He obtains but a lien (Schweizer v. Tracy, 76 Ill. 345, 351), and his lien does not exceed the actual interest the debtor had in the property at the time of the levy. It does not displace prior equities or rights to which the property was liable in the debtor’s hands. (Wilson v. Kruse, 270 Ill. 298, 301.) An attaching creditor is clothed with no greater rights than the debtor himself ; he stands in the shoes of the debtor. (Marble Co. v. Merchants’ Nat. Bank, 15 Cal. App. 347, 350.) Under paragraph 29, ch. 11, Cahill’s Ill. Rev. St. 1931, page 148, any person, other than the defendant, claiming the property attached, may interplead, and such inter-pleader is entitled to all the relief he could have obtained had he filed a bill in equity, and his equitable rights will be fully protected in such proceeding. (Paragraph 24, ch. 62, Cahill’s Ill. Rev. St., 1931, page 1545; Newman v. Commercial Nat. Bank, 156 Ill. 530, 539; LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194, 199; Inderrieden Co. v. United States Nat. Bank of Newberg, 176 Ill. App. 301, 304.)

In arguing for a reversal the bank contends that because Persselli, Anders and Elsenau Company all unequivocally stated the certificates were for 1,000 shares of Fox Film Corporation class “A” common stock, they thereby represented they knew this to be true, and since the certificates were counterfeit, the representation is false, and constitutes actual fraud. Counsel for appellees, however, contend that the representations as made by the Elsenau Company .do not constitute any species of fraud and cannot serve to construct any equity in favor of the bank, and in their argument state that where one makes a statement and honestly believes it to be true, under circumstances where he has no intent to deceive, and was himself warranted as a reasonable man in believing the statement to be true, he has not perpetrated a fraud on his auditor. We cannot agree with them in this contention as it has been repeatedly held that it is immaterial whether the parties making an untrue representation knew it to be false, for the reason that the affirmation of what one does not know to be true is unjustifiable, and if another act upon the faith of it he who induced the action must suffer, and not the other. (Borders v. Kattleman, 142 Ill. 96, 103; Noll v. Peterson, 338 Ill. 552, 556; Owens v. Union Bank of Chicago, 260 Ill. App. 595, 600.) And a party selling property is presumed to know whether the representations he affirmatively makes in respect to it are true or false. If he knows them to be false it is a positive fraud, and if he makes them without knowing them to be true for the purpose of inducing another to act upon them, it in equity amounts to fraud. (Cooper v. Empire Security Co., 227 Ill. App. 161,175; Rowe v. Phillips, 214 Ill. App. 582, 598.) Good faith is no defense where the fraud and deceit practiced consist of making false statements of fact as of the knowledge of the one speaking, for if one asserts a thing to be true of his own knowledge when it is not true, or when he does not in fact know whether it is true or not, his statement that he knows it to be true of his own knowledge is false whether the fact asserted is true or not. And if a person makes a positive statement that a thing that is susceptible of knowledge is true it is implied that he knows it to be true of his own knowledge, and if he has no such knowledge, he is guilty of actual fraud. (National Bank of Pawnee v. Hamilton, 202 Ill. App. 516, 526. Certiorari denied by the Supreme Court.) In a bill for rescission the question whether the vendee intentionally falsified is immaterial. It is enough that the representation was contrary to fact, was material, was made to induce the vendee to act, and was actually relied and acted upon by the vendee to his injury. (Independent Harvester Co. v. Tinsman, 253 Fed. 935, 937), and equity will, in a proper case, avoid and set aside a transaction induced or procured through material misrepresentations although the statements and representations were honestly made with no intent to deceive. (Leary v. Geller, 224 N. Y. 56, 58.)

The appellees also argue that no representation of genuineness was made or reliance placed on any one’s representation as to the genuineness of the certificates, and that the statement made by the Elsenau Company to the bank was not a representation from which any equity arises. The argument is not based on the facts as we understand them. The undisputed evidence discloses that when the Elsenau Company delivered the 20 certificates to the bank it stated they were certificates for 1,000 shares of Fox Film Corporation class “A” common stock, and the bank relying on said statement accepted the certificates, believing the statement to be true and not knowing to the contrary, and the bank would not have made the loan had it known the certificates were forged.

The appellees further argue that the representations were made honestly, upon a reasonable belief in their truth; in other words Elsenau Company was mistaken in representing the certificates were genuine. Even so, relief will be granted from the consequence of a mistake of fact which is material to the transaction, affecting its substance, which, in itself, is so important that it determines the conduct of the parties. (Hoops v. Fitzgerald, 204 Ill. 325.) It is undisputed in the instant case that the bank believed and relied on the statement of Elsenau Company that the certificates were certificates for 1,000 shares of Fox Film Corporation class “A” common stock, and that the bank would not have made the loan had it known the certificates were spurious. The statement was material to the transaction, affected its substance, and was so important that it determined the conduct of the bank, and it would be inequitable and unconscientious for a party to insist on holding the benefit of a contract which he had obtained through misrepresentations, however innocently made. (Hammond v. Pennock, 61 N. Y. 145, 152.)

The appellant bank also contends that it is entitled to rescind the loan and impose a constructive trust or equitable lien on the proceeds of the loan which was deposited with the garnishee. We think there is merit in this contention. Property obtained by one through the fraudulent practice of a third person will be held under a constructive trust for the person defrauded. (Ruhe v. Ruhe, 113 Md. 595; Evans v. Moore, 247 Ill. 60.) As before stated the loan was obtained by fraud. Under such circumstances the bank had the right to rescind the contract as soon as it discovered the fraud practiced upon it, and reclaim the money from anyone not an innocent purchaser for value. (Doane v. Lockwood, 115 Ill. 490; Schweiser v. Tracy, 76 Ill. 345.) It is an established principle of equity that one will not be permitted to derive any benefit from his own fraud (Miller v. Miller, 266 Ill. 522, 531), and equity will raise a constructive trust, even where there is no fraud, whenever the circumstances of the transaction are such that the person who takes the legal estate may not enjoy the beneficial interest therein, as against the other party to the transaction, without violating some established principle of equity (Englestein v. Mints, 345 Ill. 48, 56; Harrison v. Tierney, 254 Ill. 271), and no change in the state or form of the trust property can divest it of the trust, so long as it can be identified, either as the original property of the cestui que trust or as the product of it. (Woodhouse v. Crandall, 197 Ill. 104, 111; Farmers’ and Mechanics’ Nat. Bank v. King, 57 Pa. St. 202.) Even in case of money, which is said to have no earmark, its identity will not be lost, though it is mingled with other money of the wrongdoer, if it can be shown that it forms a part of the general mass (American Sugar Refining Co. v. Fanchor, 145 N. Y. 552, 557; Third Nat. Bank of St. Paul v. Stillwater Gas Co., 36 Minn. 75; Lewis v. Equitable Mortgage Co., 94 Gra. 572), and the cestui que trust may pursue the proceeds of trust property and charge with the original trust any property in which the proceeds of the trust property have been invested. (Worrell v. Torrance, 242 Ill. 64, 68.) The undisputed evidence shows that $11,000 of the fund in the possession of the garnishee is the same fund obtained by Persselli from the bank, by means of the check to his order dated December 20,1930, drawn by Elsenau Company. The deposit of the $11,000 check by Persselli in his account with the garnishee is equivalent to the deposit of that amount of money. (Montgomery County v. Cochran, 121 Fed. 17, 21; Peterson v. Smith, 211 Ill. App. 431, 435.)

Our examination of the record and the authorities leads us to the conclusion that the Harris Trust and Savings Bank had the right to rescind the loan made to M. 1ST. Elsenau Company, and is entitled to recover $11,000 of the funds in the hands of The National Bank of the Republic of Chicago, garnishee, and appellees have no right to so much of said fund and M. N. Elsenau Company has no right to any part of said funds. Accordingly the judgment appealed from is reversed and a judgment will be entered in this court against The National Bank of the Republic of Chicago, a corporation, as garnishee, for $11,000 in favor of the Harris Trust and Savings Bank, and for $1,000 in favor of appellees. Appellees to pay all costs in this court.

Reversed and judgment here against the National Bank of the Republic of Chicago, a corporation, for $11,000 in favor of Harris Trust and Savings Bank, and $1,000 in favor of J. F. Brennan, F. E. Alstrin, C. Groverman Ellis, L. M. Spitsglass, S. B. Ullman, C. C.'Taylor, Henry Stef any, L. M. Stem, B. F. Stein, co-partners doing business as Stein, Alstrin <& Co. M. N. Elsenau Company to take no part of the funds.

G-ridley, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Keener

license: Public Domain

text:
    Pauline Carabelli, Complainant, v. Louis Carabelli et al., Defendants. Louis Carabelli and Pia Carabelli, Cross Complainants, v. Anton Presern et al., Defendants. Anton Presern, Cross Complainant and Appellee, v. Louis Carabelli et al., Defendants. Appeal of Louis Carabelli and Pia Carabelli, Appellants.
    Gen. No. 35,646.

      Opinion filed May 17, 1932.
    Charles J. Trainor, for appellants.
    Isadore S. Blumenthal, for appellee; Lewis Bennett and B. M. Steiner, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

April 12, 1929, Pauline Carabelli filed her bill for partition against Louis Carabelli, Pia Carabelli, his wife, Anton Presern and others, alleging that she was the owner of an undivided three acres of certain lands in Cook county, Illinois, and that Louis Carabelli and Pia Carabelli were the owners of the balance of said tract of land, and praying for partition thereof. • Louis Carabelli and Pia Carabelli filed their answers, admitting ■ the allegations of the bill. Anton Presern filed a cross-bill in which he claimed to be the owner of an undivided one-half of said real estate free of all liens and incumbrances. Louis Carabelli and Pia Carabelli also filed their cross-bill in which they alleged that they were the owners of an undivided one-half of said premises, less the three acres owned by Pauline Carabelli; that Anton Presern was the owner of the other undivided one-half, but that they were entitled, as against Anton Presern, to equitable contribution for the amount which had been paid, first, upon a common obligation in which Presern was legally and equitably bound to pay one-half, and second, the amount of a judgment for $1,241.70, which one Buchheister had recovered against Presern. After issues joined the cause was referred to a master who reported that Louis Carabelli and Pia Carabelli were the owners of the undivided one-half of the real estate, less the three acres owned by Pauline Carabelli, and that Presern was the owner of the other undivided one-half, but that Louis Carabelli and Pia Carabelli were equitably entitled to recover from Presern $4,943.88, and recommended a decree of partition in which provision be made for the payment of said $4,943.88. Objections to the report were ordered to stand as exceptions. There was a hearing on the exceptions, which were sustained, and October 14, 1931, the chancellor entered the decree appealed from, to reverse which Louis Carabelli and Pia Carabelli have appealed.

The undisputed facts as found by the chancellor are that September 27, 1923, one Thomas W. McFarland acquired title to the premises in question from Thomas Coburn and wife, and to secure the payment of the balance of the purchase price executed his note for $6,000 and secured the note by a trust deed upon the premises in question. April 7, 1926, McFarland sold the property to Anton Presernj Louis Carabelli and Pia Carabelli, as tenants in common, Presern taking an undivided one-half thereof and Carabelli and his wife the other undivided one-half and these tenants in common assumed and agreed to pay the said $6,000 note secured by said trust deed; they failed to pay the note and Thomas Coburn, the owner of the note and trust deed, filed a bill to foreclose the trust deed in the circuit court of Cook county, in which the said tenants in common were made defendants. A decree of foreclosure was entered and March 30, 1927, the real estate was sold en masse to Thomas Coburn. Neither of the tenants in common redeemed the premises within the 12-month period provided by law in which to make redemption.

June 18, 1928, one Herman Carl Buchheister recovered a judgment against Anton Presern in the circuit court of Cook county of Illinois for $1,241.70; June 28, 1928, one Salvatore Iannone recovered a judgment against Louis Carabelli in the circuit court of Cook county of Illinois; that after the expiration of the 12-month period of redemption and within three months thereafter Buchheister redeemed the entire premises in question through the sheriff of Cook county by paying sufficient to satisfy the amount for which the premises were sold at the foreclosure sale and interest and costs; and thereafter within said 15-month period Ian-none redeemed all of said premises through the sheriff’s office, by paying an amount sufficient to satisfy the judgment of Buchheister against Presern, together with costs and interest, and also an amount which said Buchheister had paid the sheriff when he made his redemption, aggregating $8,646.06. July 24, 1928, the sheriff made a levy upon the premises in question under the execution issued on the Iannone judgment against Louis Carabelli, and the entire premises were sold to Iannone upon the sale under said execution, and the sheriff issued a deed conveying the entire premises in question to said Iannone. Thereafter Iannone by quitclaim deed conveyed the entire premises to Louis Carabelli and Pia Carabelli, his wife, as joint tenants and later, by written assignment, assigned all his right, title and interest in and to said premises and in and to the right of contribution from Presern by reason of his redemption of said premises under Ms execution against Louis Carabelli. March 23,1929, Louis Carabelli and his wife executed a warranty deed conveying an undivided three acres in said premises to Pauline Carabelli.

In the decree the chancellor after making the above findings adjudged that Buchheister by his redemption of the entire premises acquired the interest of Presern and thereby the entire premises were released from the lien of the Coburn trust deed, and that by Iannone’s redemption of the whole of the said premises the interest of Presern was released and Iannone acquired only the interest of Louis Carabelli; that the sheriff’s deed to Iannone of the entire premises conveyed only the interest of Louis Carabelli and that pursuant to said redemptions and conveyances Anton Presern, Louis Carabelli, Pia Carabelli and Pauline Carabelli are the owners of the premises as tenants in common; Anton Presern being the owner of an undivided one-half, and Louis Carabelli and Pia Carabelli being the owners of the other one-half, less the undivided three acres of the premises conveyed to Pauline Carabelli.

The principal contention of the appellants is that when Iannone made redemption upon his judgment against Carabelli and paid the entire amount for which the real estate had been sold at the foreclosure sale, including the judgment against Presern, he was entitled to contribution against Presern for the proportion of that obligation which Presern legally and equitably should have paid. On the other hand, appellee claims that he is now the owner of one-half of the real estate free of the Coburn trust deed and of the Buchheister judgment because Iannone was a mere volunteer and was not entitled in equity to be subrogated to any rights which Buchheister or Coburn had against him, and urges that before it can be held that appellants are entitled to contribution it is necessary to determine whether Iannone was compelled by law to redeem the entire property, or whether or not he could have redeemed only the interest of Louis Carabelli, his judgment debtor.

The right of redemption is purely statutory and the right must be exercised in the manner required by the statute or it will be invalid. (Durley v. Davis, 69 Ill. 133.) Section 20, ch. 77, Cahill’s Rev. St. 1931, 20, declares that after the expiration of 12 months, and at any time before the expiration of 15 months, from the sale, any judgment creditor may redeem the premises in the following manner: Such creditor may sue out an execution upon his judgment and place the same in the hands of the sheriff to execute the same, who shall indorse upon the back thereof a levy of the premises to be redeemed; and the judgment creditor shall pay to the sheriff the amount of money for which the premises were sold, with interest at six per cent per annum from the date of the sale, for the use of the purchaser thereof, upon payment of which, the sheriff shall file in the recorder’s office of the county in which the premises are situated a certificate of redemption, and shall advertise and offer the premises for sale under said redemption. By section 21 of the same chapter the judgment creditor, having so redeemed, shall be considered as having bid at such sale the amount of the redemption money so paid by him, with interest -thereon, etc., and if no greater amount is paid at such sale the premises shall be struck off to the judgment creditor making such redemption. By section 22 successive redemptions may be made of the premises at any time within 60 days of the last sale at which they were sold for more than the amount of the redemption money, interest and costs, and the premises again sold in the same manner and upon the same terms and conditions, etc. By section 25, any person entitled to redeem may redeem the whole or any part of the premises sold, in like distinct parcels or quantities in which they were sold; and by section 26 any judgment creditor of a joint owner may redeem the interest of such joint owner in the premises sold on execution or decree, in the manner and upon the conditions hereinbefore provided, upon the payment of his proportion of the amount which would be necessary to redeem the whole.

It is appellee’s contention that section 26 grants to any judgment creditor of a joint owner the right to redeem only the interest of such owner upon the payment of his proportion of the amount which would be necessary to redeem the whole, notwithstanding section 25 under which any person entitled to redeem may redeem the whole of the premises sold. In other words, appellee would have us consider only section 26 and entirely disregard section 25.

The statutes nowhere provide that a judgment creditor may redeem by paying any less sum than the full amount for which the land is sold, and we have been unable to discover any good reason why we should hold that section 26 is controlling in the instant case and not section 25. The various sections of chapter 77 must be construed as to give effect to the legislative will, bearing in mind that redemptions are looked upon with favor, and where no injury is to follow, a liberal construction will be given to redemption laws, and it has been held that where two or more lots or tracts of land have been sold en masse, the redemption can only be en masse — there can be no redemption of a part; when sold en masse they can be redeemed only in a like manner; a sheriff would have no right to divide up a bid and apportion it among several tracts of land where the same have been sold en masse, (Oldfield v. Eulert, 148 Ill. 614, 619; Bozarth v. Largent, 128 Ill. 95; Owens v. Commonwealth Trust Co., 183 Ill. App. 605.) The redemption of Iannone did not obliterate the Coburn foreclosure sale, but substituted Ian-none for Coburn, the original purchaser. (Herdman v. Cooper, 138 Ill. 583.) Iannone, as a judgment creditor of Carabelli, was forced to redeem from the Co-burn foreclosure and Buchheister sales en masse, as the premises were sold in that manner (Schroeder v. Bozarth, 224 Ill. 310, 318), and the effect of his redemption was to transfer to him all the rights belonging to Coburn, the original purchaser. (Sutherland v. Long, 273 Ill. 309, 315.)

We now come to the claim of the appellants that the chancellor erred in not providing in the decree that they were entitled to contribution against appellee for the proportion of the obligations which appellee legally and equitably should have paid, appellee contending Iannone was a mere volunteer and was not entitled to be subrogated to any rights which Coburn and Buchheister had against him, and that by redeeming his title is freed of the Coburn indebtedness and the Buchheister judgment, and he retains his original status in the real estate. We think there is no merit in appellee’s contention. The obligation to discharge the Co-burn indebtedness was mutual, the appellee as well as the appellants being equally bound to pay that indebtedness, and the Buchheister judgment was the sole obligation of the appellee, and a redeeming creditor who redeems in conformity with the statute is not a mere volunteer. The right of contribution rests upon the principle that where all. are equally liable for the payment of a debt all are bound equally to contribute to that purpose. (Sledge v. Dobbs, 254 Ill. 130, 133); and where one tenant in common had removed an incumbrance from the common estate the other tenants must contribute to the extent of their respective interests, and to secure such contribution an equitable lien upon their interests of the same character with that which has been removed will be enforced by a court of chancery. The redeeming tenant in common, in order to secure contribution, is substituted to the same lien which he has redeemed (Titsworth v. Stout, 49 Ill. 78, 80), and the principle is equally applicable to the judgment creditor of a tenant in common. (Fischer v. Eslaman, 68 Ill. 78, 83.)

The master’s report was correct in finding that the appellants were entitled to recover from the appellee $4,943.88. By the decree the chancellor has absolved appellee from paying his obligations. To uphold that decree would give the appellee an unconscionable advantage and work great injustice to the appellants. We cannot concur in the action of the chancellor.

The decree of the circuit court will be reversed and the cause remanded with directions to enter a decree that the appellants are equitably entitled to recover from appellee $4,943.88, together with interest from October 23, 1930, as recommended by the master.

Reversed and remanded with directions.

G-ridley, P. J., and Scaylay, J., concur.


author: Mr. Justice Scanlan

text:
    Helen King, Appellee, v. Bernard W. Snow, Bailiff of the Municipal Court of Chicago, Appellant.
    Gen. No. 35,516.
    Opinion filed May 17, 1932.
    Frank H. Eepetto, for appellant.
    No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the municipal court of Chicago, Helen King sued Bernard W. Snow, bailiff of the municipal court of Chicago. The defendant was summoned as “Bernard W. Snow (formerly) Bailiff of Municipal Court.” The case was tried by the court and there was a finding against the defendant and the damages of the plaintiff were assessed at $851.73. Judgment was entered upon the finding on March 10,1931. On April 21,1931, more than 30 days after the entry of the judgment, the defendant moved the court “to quash execution, vacate judgment heretofore entered and dismiss the above entitled cause for want of jurisdiction, appearing upon the face of the said proceeding.” From the order entered denying the motion the defendant has appealed.

When the motion came on to be heard the plaintiff objected to the granting of the same upon two grounds, (a) that 30 days had expired since the entry of the judgment and the trial court had therefore no jurisdicto vacate the judgment, and (b) that the defendant waived the question of jurisdiction by appearing in the cause and not raising that question. To this the defendant answered that “jurisdiction may be raised at any time and is not controlled by the question of term of Court.” There is not the slightest merit in the contention that the trial court lacked jurisdiction to enter the judgment. In substance, the statement of claim of the plaintiff alleged, inter alia, that about May 31, 1929, Jerome M. Clark sued out a writ of replevin in the municipal court of Chicago in a certain case and that the writ was thereafter served upon the plaintiff and an automobile belonging to the plaintiff was seized by the defendant under the writ, and that thereafter, on March 13, 1930, the cause came on for trial, at which time the court found the right of property in the defendant (plaintiff in this cause) and judgment was entered upon the finding and a retorno ha bendo ordered; that Clark prayed an appeal but abandoned the same, and on March 20, 1930, “the said Helen King had issued out of said court in said case a writ of Retorno Habendo and Fi Fa, and that said writ was returned August 5, 1930 no part satisfied,” and that the said Bernard W. Snow, bailiff of the municipal court, has not made return of the property to her, to the damage of the plaintiff in the sum of $900, etc. In the praecipe order to the clerk of the municipal court the defendant saw fit to omit the pleas he filed in the cause, and from the state of the record and from the position taken by him on the motion to vacate we must assume that he did not raise the question of jurisdiction by apt plea. It is the settled law that want of jurisdiction of the person may be waived, but jurisdiction of the subject matter cannot be conferred on the court by consent of the parties, and the want of it may be raised at any time. That the trial court had jurisdiction of the subject matter of the suit is, of course, undisputed, and the contention raised by the defendant relates to the jurisdiction of the court over the person of the defendant. It is sufficient to say, in answer to the contention, that the defendant should have raised that question by proper plea or motion during the trial of the cause, and he cannot plead to the merits of the action, go to trial, and then raise the question for the first time after verdict and judgment against him. (See Iles v. Heidenreich, 271 Ill. 480, 485, 486.)

The defendant, as we read his brief, has attempted to shift his position in this court. He argues that section 16 of the Municipal Court Act, Cahill’s St. ch. 37, 404, provides that the powers, duties and liabilities of the bailiff of the municipal court shall be the same, as near as may be, as those prescribed by law for a sheriff; that by reason of section 6, chapter 125, Cahill’s Ill. St., ft 6, relating to sheriffs, the plaintiff in the instant suit was compelled to join with the defendant his bondsman, and that because the plaintiff failed to follow this procedure the judgment in question is unenforceable and therefore void. If there was a nonjoinder of a necessary party the defendant should have pleaded such fact in abatement. He did not do so, and he would have no right to raise that question upon his motion to vacate. Nor does he correctly interpret section 6. That section gives a party the right to prosecute the bond of a sheriff in the name of the People of the State of Illinois for his use, but it does not take away from that party the right to sue the sheriff, the wrongdoer, alone. In the instant case the plaintiff had the undoubted right to sue the defendant, the wrongdoer, in his individual capacity, and this procedure was followed by her. A former sheriff or bailiff of the municipal court may be sued in his individual capacity after he has gone out of office. In the instant case the words in the praecipe, “Bailiff of the Municipal Court,” are merely deseriptio personae. It also appears from the record that when the defendant was summoned his term of office had expired and that Albert J. Horan was then bailiff of the municipal court, and the defendant was summoned as “Bernard W. Snow (formerly) Bailiff of Municipal Court.” Had the defendant raised the question of jurisdiction during the trial of the cause it would have availed him nothing.

There is not the slightest merit in the instant appeal, and the judgment order of April 27, 1931, denying the motion of the defendant to vacate and set aside the judgment entered March 10, 1931, is affirmed.

Affirmed.

Gridley, P. J., and Kerner, J., concur.


text:
    Lilian Meier, by Her Next Friend, Gustave Meier, Appellee, v. John Hartman and Ida Hartman, His Wife, Defendants. Ida Hartman, Appellant.
    Gen. No. 35,733.

      Opinion filed May 17, 1932.
    Olds, Stolle & Bellair, for appellant; Erwin F. Stolle and John F. Bellair, of counsel.
    Bayley, Merrick, Webster & Gregory, for appellee; Robert Hunter, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

From a verdict and judgment for $3,500 against both defendants in an action in case, the defendant Ida Hartman appeals.

No points are raised as to the pleadings. The plaintiff sued to recover damages for injuries sustained by Lilian Meier, a child of five years of age, as the result of an attack upon her by a pack of collie dogs which the plaintiff alleged were owned and harbored by the defendants when they, the defendants, knew that the dogs were vicious and accustomed to attack and bite mankind. The defendants filed a plea of the general issue and each filed a special plea denying ownership of the dogs which caused the injuries. The child, as a result of the attack, was seriously injured. Dr. Todd, one of the attending doctors, who saw her shortly after the attack, testified: “Most of her clothing was already torn from her or removed some way. It was all torn and just a small piece of her underwear was left around her waist. One shoe, I think the right, was on, and part of the stocking. She was covered with blood and numerous lacerations over the body. The scalp, her head, and ears were slashed and her throat had several deep lacerations and blood was coming from them. She had been chewed or torn severely under the arm pits and about the left hip and across the back. . . . Both legs and hips were torn, some of them rather severely. ... We put her in the operating room, gave her an anesthetic and proceeded to sew up the wounds. Some were so deep we inserted drains so that the infection could drain out. Dr. Hagen and myself both were operating on her. There were between 250 and 300 lacerations and injuries to be taken care of. It took us between an hour and forty-five minutes and two hours to complete sewing up and draining the injuries. Some of them extended to the bone in the left hip and were the most severe. ... In my opinion, not all of these scars will entirely disappear. In my opinion about one-third of the scars will be permanent. More than one-third of the lacerations left scars. About seventy-five of these scars will be permanent. . . . The nervousness, to some extent, is permanent, and the impaired circulation in the lower extremity is permanent, in my opinion. In the later life of the plaintiff the scars will affect appearance. The nervousness will probably be manifest by fear of dogs especially; fear of being alone and fear of the dark. . . . The scars on her throat were above the clavicle. ... In my opinion they are permanent. ’ ’ The child was in a hospital for three weeks, and for a number of months thereafter was in a wheel chair.

The appellant contends that the plaintiff failed to make out a prima facie case against the defendant Ida Hartman. The appellant’s argument in support of this contention is that the plaintiff “offered no testimony as to the ownership of the dogs nor even any direct evidence that they were harbored by this defendant’s husband, much less as to their being owned or harbored by this defendant. Even if proof had been offered that they were owned or harbored by this defendant’s husband, that fact would not have attached any liability to this defendant,” and that there is no evidence that the appellant had any knowledge or notice that any of the dogs were in the habit of biting mankind or had vicious propensities or had ever attacked anyone.

The plaintiff had the right to prove his case by direct or circumstantial evidence.

The defendants lived near the Village of Morton Grove, in Cook county. The defendant John Hartman testified that for 20 years he had been raising collie dogs for the market; that at the time in question he owned the pack of collie dogs, “eight full grown dogs” and a number of puppies; that his wife sometimes sold the dogs; that “the dogs belong to the family” ; that he always kept the dogs fenced in. Mr. and Mrs. Hartman were the sole members of the family. The witness further testified that at the time in question Mr. Meier, Mrs. Hartman and the witness were at the Hartman place and they heard the barking of the dogs and that Mrs. Hartman wanted to go to the place where the dogs were; that she said to Mr. Meier that ilshe had a female in heat”; that Mrs. Hartman and Meier ran to the place where the dogs were; that he (the witness) “wanted to go but I could not go so fast.” Mr. Meier, the father of Lilian, testified that at the time in question he was standing in front of the defendants’ house talking to both defendants, “when their dogs rushed out of the front gate and run down the road and set up quite a bit of commotion. Q. What kind of dogs were they? Can you describe them? A. A peculiar strain of collie. They’re darker than the ordinary collie. They have a short stubby nose and flat head. . . . They were a darker brown than a real pedigreed collie. Q. Had you ever seen those dogs before? A. I had many times. Q. Where had you seen them? A. In the Hartman house and in the yard. Q. After the dogs ran past the house, did you have any conversation with Mrs. Hartman? A. I didn’t but Mrs. Hartman spoke to Mr. Hartman when she heard the dogs making the disturbance on the road and said he better go down and see what the dogs were doing, that they had something down the road, and Mr. Hartman is old not very fast on his feet, so Mrs. Hartman and I started down the road and I heard the dogs getting louder, whatever they were doing, running, and they were — they had' something in the meadow. Q. What were the dogs doing? What did you see the dogs doing? A. They were jumping back and forth, nipping at something laying in the hayfield. Q. Could you tell what it was? A. I could not see what they had down on the ground. Q. What did you do? A. I ran. As I got closer, I saw they had a child. Q. What did you do then— A. Why, I hollered — ■ Q. —if anything? A. —-at the dogs and at the same time Mrs. Hartman called to the dogs and the dogs left. I got up closer and I found Lillian pretty badly chewed up”; when “I picked Lillian np she had been lying face down and her body, back, legs, and all but her right foot, were literally scratched and chewed, and she was lying between the grass and hayseed.” The witness further testified that in the pack that ran from the defendants’ home was a dog that the Hartmans called Charlie and which he had seen before that time in the defendants’ place; that later that day “Mrs. Hartman said they thought a whole lot of Mrs. Meier, the children and myself and they were going to take care of Lillian and help us. I do not know whether she said pay the doctor bills and hospital bill but they were going to help us. . . . She said she was willing to put on paper that Lillian was to have everything that they had after their death.” Upon cross-examination the witness stated the pack of collies “had the run of the house and the yard”; that at times they kept them “in a sort of enclosure in the yard”; that on the day in question “they were out in the front yard”; that as he was standing at the front gate by the roadway with Mr. and Mrs. Hartman the dogs came out of another gate, “the large gate,” about 15 feet from the gate where they were standing; that Mr. Hartman yelled at the dogs as they dashed out of the gate but they did not come back; that the Hartman place is inclosed with a big, high fence which in some places had fallen down. The witness further testified that his attention was attracted to dogs “barking, growling,” about 300 feet east of the defendants’ place; that the dogs that attacked the child were “all full grown dogs”; that he had often seen the pack of dogs, nine or ten in number, running in the defendants’ house and yard, and also in the fields. Frieda Schroeder testified that she was present at the Meier’s home immediately after the attack and while the child’s wounds were being dressed, and that the following occurred: “I asked Mrs. Hartman whether she let the dogs loose and she said no, the dogs broke out and if the Charlie dog would not have been with them, it would not have been so bad. The others were playful”; that a little later, when the doctor took the little girl away, “Mrs. Meier carried on so and Mrs. Hartman put her arms around her and said she shouldn’t cry. She would pay the expense if she had to steal the money.”» On cross-examination this witness testified that Mrs. Hartman also said “the dogs broke out and she would .pay the expenses.” Arthur Schroeder testified that he was at the Hartman home on the Sunday following the day of the attack and that both defendants and the father of the child were present; that “Mr. Hartman said he had been talking with his wife they did not have any cash money on hand but they always did like the little child and they would will her some money when they died because they had no friends and no relations here whatever and . . . Mrs. Hartman came in then and they went through the same conversation about — she asked about the child and he told her the same story. She was very bad. She said she felt very sorry for her and Mr. Hartman said to her he had been telling Mr. Meier about willing the child some money and she said yes, they thought that’s what they would do. Will their property over to the child and asked Mr. Meier what he thought of it. . . . She said the fence was broke and the dogs got out and she said she thought it was a dog that was going to have puppies, she said, that started it. That’s what she thought. And on account of the fence being broke and getting old she asked Mr. Meier if he would come over and help them fix the fence and he said he would. ’ ’ On cross-examination the witness testified that Mrs. Hartman said the fence was very -old ‘‘ and the dogs got out through the broken part of the fence.”

While the defendant Mrs. Hartman, in response to a direct question, stated that the collies belonged to her husband, nevertheless, she made many statements that tend to support the claim of the plaintiff that the dogs belonged to her and Mr. Hartman. In testifying as to the attack, she said: “At that time I hear dogs barking and you know we have a dog kennel and the dogs were barking and I say to Mr. Meier, ‘Have you got your dogs along? Strange dogs in there. We have got a dog what is in heat, ’ and he said, ‘ Och, G-ott, ’ and I run behind him. ’ ’ Repeatedly the witness spoke of the dogs as “their dogs.” During her direct examination the following occurred: “Q. A pedigree does not determine whether a dog is Collie or not? A. Yes; they are straight Collies. I have got full bred Collies.” On cross-examination she further testified: “Q. Was that a thoroughbred collie, too? A. No. Before that we had blood hounds. That’s long ago. Q. How long have you had collies? A. Anyway 15 years. . . . Q. Did you buy the first dog or did Mr. Hartman buy it? A. I cannot remember that. That’s too long. Q. Are your dogs registered? A. No sir. . . . Q. You don’t sell registered collie dogs? A. No sir. We sell full blood collies. Q. You sell full blood collies? A. Yes sir. . . . Q. Are your dogs good watch dogs? A. Sure. They are good watch dogs. Q. Are your dogs well trained? A. They are trained. Q. When you say, ‘ Come here, King, ’ does King come over to you? A. Yes, sure. . . . Q. This Charlie dog is a dark color dog. He is darker than King? A. He is a little darker. Q. King, is he the head? A. Yes sir. Q. Of your kennel? A. Yes.” The witness testified that in addition to raising dogs they also raised rabbits, chickens, pheasants, ducks, ‘ ‘ everything, ’ ’ and that they all belonged to her but the dogs. The witness denied in toto all of the statements that the various witnesses testified she made. She denied that any of the dogs escaped from the Hartman place at the time of the attack and she stated that she did not see any clogs at the time her attention was called to the barking or when she ran to the place in the prairie where the child was lying. She further testified that she examined the child right after the accident; that she “washed her face and hands and all of her body” and that “she was more scratched than bit”; that she had “no bites on her body”; that she saw only one bite, “just a little one.” “Q. A bite behind her ear? A. I did not say bite. . . . Q. What lacerations or bites or scratches did you see on the child’s body? A. She had nothing on her body. Q. She had none on her body? A. No sir.” We entirely agree with the contention of the plaintiff that testing the testimony of Mrs. Hartman in the light of all the other facts and circumstances in the case, the jury were justified in giving it little, if any, weight. As we read the record Hartman was old, slow, and not over bright, and Mrs. Hartman was the dominant and controlling force in the Hartman establishment and undoubtedly had an interest in the dogs in question. We have not deemed it necessary to consider the question as to whether Mrs. Hartman, even if she had no ownership in the dogs, could be held liable upon the theory that she harbored or kept them.

Dale Kittelson testified that the Hartman dogs had attacked him in the presence of the defendant John Hartman, and Walter Vogt testified to another occurrence when the Hartman dogs attacked him,- also in Mr. Hartman’s presence. It is undisputed that the Hartmans had a sign in front of their house reading, “Beware of the dogs.” In Domm v. Hollenbeck, 259 Ill. 382, the court held that the knowledge of vicious propensities of dogs “may be made by evidence of facts and circumstances from which an inference of knowledge arises.” There is testimony to the effect that the defendant Mrs. Hartman made certain admissions which indicated a knowledge that the “Charlie dog” was vicious enough to attack the child and her belief that the other dogs would not have joined in the attack had it not been for him. This is not a case where a single dog is charged with attacking an individual, and it is a matter of common knowledge that a pack of dogs is more likely to manifest vicious propensities than a single dog. “The call of the wild” is very much more likely to develop in a pack than in a single dog. In the instant case the defendants claimed that they kept the pack in a place surrounded by a high fence and never allowed them out of this inclosure. The testimony shows that when Mrs. Hartman heard the dogs barking she did not then see them and did not know what they were doing, nevertheless, she immediately called them and ran to the place of the occurrence. Her actions in this regard tend strongly to show that she knew that it meant danger to human beings for the pack to be at large. The savage character of the attack made by the entire pack upon the little child indicated clearly the real nature of the dogs, and the jury were fully justified in finding-that the defendants had knowledge that if the pack of dogs escaped from the inclosure and ran at large they were very likely to manifest vicious propensities.

The appellant contends that the motion made at the close of the plaintiff’s case should have been allowed; that at that point in the case the plaintiff had not shown who owned or harbored the dogs and that “there was no evidence to show knowledge on the part of Mrs. Hartman, of any of the dogs having vicious propensities.” It is a sufficient answer to this contention to say that the defendants did not stand by their motion for a directed verdict at the close of the plaintiff’s case and that they thereafter offered evidence in their own behalf, and, therefore, the instant contention is without merit.

The appellant contends that “the verdict was excessive, was the result of passion and prejudice and based on speculation. ’ ’ This contention is without the slightest merit.

The appellant contends that the trial court erred in not directing a verdict of not guilty for the defendants as to plaintiff’s third count. The defendants, after verdict, filed a written motion for a new trial, in which nine grounds are specified. None of the grounds has any reference to the instant contention, and therefore it cannot now be considered by us. (See Anderson v. Karstens, 297 Ill. 76.) Many other authorities to the same effect might be cited, if it were necessary.

The appellant contends that the court erred in giving to the jury, at the instance of the plaintiff, instruction number eight. As none of the grounds assigned in the written motion for a new trial has any reference to instructions the instant contention cannot be considered.

The appellant, Ida Hartman, has had a fair trial and the judgment of the circuit court of Cook county should be and it is affirmed.

Affirmed.

G-ridley, P. J., and Keener, J., concur.


author: Mr. Presiding Justice Hebel

text:
    Chas. Kronauer & Company, Appellant, v. The Mechanics Insurance Company of Philadelphia, Appellee.
    Gen. No. 35,229.

      Opinion filed May 21, 1932.
    Dailey & Schbadzki, for appellant.
    Silber, Isaacs, Silber & Woley, for appellee; Samuel Levin and Herbert W. Hirsh, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This cause is now before us on rehearing granted, and is an appeal by the plaintiff from a judgment entered on a verdict directed by the court finding the defendant not guilty.

The first count of the declaration alleges that on February 20, 1928, the defendant for a good and valuable consideration, paid by the plaintiff to the defendant, executed and delivered to the plaintiff a policy of fire insurance, insuring the plaintiff against loss and damage by fire, to the amount of $1,500, on the contents of the premises occupied by the plaintiff, in the brick building located at 844-856 Fulton street, in Chicago, Cook county, Illinois. The declaration then sets out in haec vert a the policy of insurance sued on. The declaration further alleges, in part, that on February 14, 1928, the plaintiff executed and delivered to Alfred Frieder and Edward Frieder, copartners, doing business as Frieder Finance Association, a chattel mortgage covering the property in question, and that the defendant did, more than 10 days prior to the fire, consent to the execution and delivery of said chattel mortgage. The declaration then alleges compliance, by the plaintiff, with all the terms and conditions of the policy.

The defendant filed plea of general issue, and 10 special pleas; and subsequently filed three additional pleas. The eighth special plea and the first additional plea are alone involved in the determination of this appeal. The eighth special plea sets up the following provision of the policy of insurance sued on: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage ’ ’; that the property insured was incumbered by a chattel mortgage executed to Alfred Frieder and Edward Frieder, copartners, doing business as Frieder Finance Association; that there was no agreement indorsed on the policy or added thereto, permitting said chattel mortgage, by reason whereof it had become void. To this special plea plaintiff filed its replication setting forth that more than 10 days prior to the fire, the plaintiff delivered the policy sued on to the agents of the defendant in Chicago, Illinois, and requested said agents to procure the consent of the defendant to the execution and delivery by the plaintiff of the chattel mortgage in question; that said agents agreed to obtain such consent immediately, and retained the policy for more than three weeks, during which time the agents notified the plaintiff that they were obtaining such consent of the defendant.

The first additional plea of the defendant set up the following provision of this policy: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto shall be void ... if the interest of the insured be other than unconditional and sole ownership”; that while the policy was in effect, personal property insured thereunder was secured by a chattel mortgage, executed and delivered to Alfred Frieder and Edward Frieder, copartners, doing-business as Frieder Finance Association; that there was no agreement indorsed on the policy or added thereto, permitting said chattel mortgage, and that thereby the policy became void. Plaintiff filed a replication to this plea, setting up the same matter averred in the replication to the eighth plea.

The facts are, substantially, that Chas. Kronauer & Company, plaintiff, was in the harness manufacturing-business located at 856 Fulton street, Chicago, Illinois, occupying the northwest side of the third floor of a three-story building; that Frank N. Walker, former employee of Kronauer & Company, took charge of the business as president; that on March 6, 1928, a fire occurred on the premises of the plaintiff, destroying its stock of merchandise and equipment and damaging its machinery and fixtures. The loss was $13,539.44, and because of coinsurance, the amount of loss in the present case is $1,246.28.

On F'ebruary 17, 1928, the defendant, Mechanics Insurance Company of Philadelphia, issued to the plaintiff a one-year term fire insurance policy in the amount of $1,500 on the contents of the premises occupied by the plaintiff. This policy contained a coinsurance clause, heretofore referred to. It also contained a provision that the policy would be void, unless otherwise provided by agreement indorsed thereon or added thereto, if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage. F. D. Keller, of Keller-Anderson Agency, agents of the defendant, who issued the policy, testified that he paid the premium to defendant company, and there is also evidence in the record that Walker, president. of the plaintiff company, paid the premium on this insurance policy in thejmiddle of March, after the loss:

Plaintiff placed a chattel mortgage on part of its property on February 14, 1928, which was filed for record February 20,1928. This mortgage covered certain machines of plaintiff, but not the stock of merchandise.

Upon executing this mortgage and after securing the policy of insurance from the defendant, the plaintiff, pursuant to the terms of the policy, sent the policies to the Keller-Anderson Agency, general agents of the defendant company, for indorsement of a consent mortgage clause thereon. The policies came into the office of this concern about 10 days before the fire, with a request for such indorsement; and a few days before the fire another insurance agency called the Beard Agency, asked for the policies, and F. D. Keller advised the Beard Agency that the indorsements were being made but that the Keller-Anderson Agency was getting behind in its work. Thereafter the fire occurred, and the indorsements at the time of the fire had not been made upon the policies.

Plaintiff’s proof of loss was furnished the defendant, and such proof was offered and admitted in evidence upon the trial of the case; also a letter of the defendant acknowledging receipt of the proof of loss. This proof of loss was afterwards returned by the defendant to the plaintiff on the ground that the loss claimed was excessive; that the cause of the fire was stated as unknown to the insured, and that the proof of loss showed that the property involved was incumbered by a chattel mortgage.

There is a conflict in the evidence as to when the premium for the insurance policy was paid, but it is clear that the premium was received by the defendant from the fact that the policy was not canceled for want of payment. The defendant relies upon the contention that the entire policy is void because the plaintiff did not have indorsed on the policy, or added thereto, the consent of the defendant to the incumbrance of the property by a chattel mortgage, as required by the insurance contract. The rule of law applicable to the instant case is that if the insurer, knowing of a change or violation of the terms of an insurance policy which might be subject to objection and for which the insurer might exercise its reserved right of cancellation, remains silent and retains the premium, the insurer should not be heard to object when called upon to make good the loss. North British and Mercantile Ins. Co. v. Steiger, 26 Ill. App. 228, affirmed by the Supreme Court in 124 Ill. 81.

The defendant knew that the plaintiff in the instant case had incumbered the insured property by the execution and delivery of the chattel mortgage to Alfred Frieder and Edward Frieder in ample time to have declared a forfeiture and canceled the policy before the happening of the loss. However, this the defendant did not do, but chose to retain the premium money and carry the risk, notwithstanding the insured property was incumbered without the consent of the defendant. By its acts the defendant ought to be bound by its election. Phenix Ins. Co. v. Johnston, 42 Ill. App. 66, affirmed by the Supreme Court in 143 Ill. 106.

The failure of the general agent of the defendant company to indorse on the policy the consent of the defendant to the incumbrance of personal property after a request by the plaintiff, and having possession óf the policy for a period of 10 days for that purpose such non-action by the defendant will not prejudice the right of the plaintiff to maintain this action. Citing Illinois Mut. Fire Ins. Co. v. Malloy, 50 Ill. 419, and Firemen’s Ins. Co. v. Horton, 170 Ill. 258.

In Phenix Ins. Co. v. Johnston, supra, the court commented upon the non-action of the insurance company in failing to indorse its consent, as required by the policy, to the taking out of additional insurance by the insured, which comment applies with equal force to the question before us in the instant case, and is in these words: “We regard it as the settled law in this State that the insurer, when applied to for the purpose of choosing his course in a matter like this, is bound to make his selection and give notice of it to the • insured, otherwise the insured may assume that the permission is granted. Fair dealing and good faith would seem to require it. Whatever may have been the decisions of the courts in other States in regard to this question, our own Supreme Court seems to have fully settled the law against the contention of appellant’s counsel.”

The defendant relies upon the case of Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354, which we have examined, and find the plaintiff admitted that the defendant, the Insurance Company, had a complete defense to the action on the policy at the time suit was commenced; and it is not claimed by the plaintiff that there was any waiver of the breach of the policy until after the commencement of the suit. The payment of the note given for a part of the premium a month and a half after the suit was commenced, is, in legal effect, an admission that there was no right of recovery when this suit was commenced. This case is not in point, for it does not appear in the record that there was any admission by the plaintiff at any time that the defendant in this case had a complete defense to the plaintiff’s action on the policy of insurance. As we have already indicated, the whole question hinges upon the application by the plaintiff to the defendant for the indorsement of its consent to the incumbrance of a chattel mortgage that covered the personal property. The record shows that the defendant had the policy for the purpose of indorsement for a period of 10 days before the fire happened, and such facts aré for the jury, which is to be guided by proper instructions given by the trial court.

The defendant contends that the plaintiff alleged that it had performed all the terms and conditions of the policy sued upon. Therefore, the plaintiff cannot recover by attempting to prove a waiver of the conditions of the policy. In the case at bar, the plaintiff alleged that he performed all the terms of the policy of insurance, and further averred, both in the declaration and the replication to the eighth special and first additional plea of the defendant, that the defendant had consented to the execution and delivery of the chattel mortgage by the plaintiff to the Frieder Finance Association.

The defendant’s only suggestion of a violation by the plaintiff of the terms of the policy is this consent clause. The facts in the record would seem to indicate that the plaintiff, in leaving the policy with the Keller-Anderson Agency, agents of the defendant, for the indorsement of the consent of the defendant to the incumbrance on the chattels, did what the policy required that the plaintiff should do, and the allegations in plaintiff’s pleadings are an averment of performanee and compliance with the terms and conditions of * this policy.

It is urged by the defendant that where evidence of an affirmative defense is offered, and such defense is not contradicted or explained, it is proper for the trial court to direct a verdict for the defendant* even/if all the averments of the declaration are proved. That contention may be well founded under a state of facts that would disclose evidence consistent with every fact which the evidence of the plaintiff tended to prove, but showing affirmatively a complete defense. However, under the facts in the instant case, that rule does not apply when we consider that plaintiff appealed to the defendant to indorse on the policy its consent to the incumbrance on the chattels, and when we consider further that there is evidence that F. D. Keller of Keller-Anders on Agency, agents of the defendant, advised the Beard Agency, when asked for the policy, that the indorsements were being made, but that the Keller-Anderson Agency was getting behind.

It was contended by the defendant in its petition for a rehearing that the attachment of a loss payable clause does not constitute the recognition of an existing chattel mortgage, and it suggests that the opinion of the court be modified to make it plain that what the plaintiff sought was the attachment of a loss payable clause, which suggestion made by the defendant clearly indicates that this court should pass upon the weight of the evidence in the record.

We held in our former opinion that there is a conflict in the evidence upon the question of the indorsement of the consent clause by the defendant consenting to the incumbrance on the chattels, and for the'reasons indicated we believe that the trial court was in error in instructing the jury to find the issues for the defendant. The rule that applies and which needs no citation of authorities is in effect that if there is any evidence in the record from which, if it stood alone, the jury could, without acting unreasonably in the eyes of the law, find that all the material averments of the declaration have been proved, the case should go to the jury. There is evidence in this record which tends to show that the Keller-Anderson Company, general agents for the defendant insurance company, had the insurance policies of the plaintiff upon which to indorse the consent of the defendant to the chattel mortgage incumbrance on the chattels, and such evidence should have been submitted to the jury. The weight of the evidence cannot be considered by the court on a motion to direct a verdict. That is also for the jury to determine, and we adhere to what we said in our former opinion.

Other questions are called to the attention of the court but it will not be necessary for the court to pass upon them at this time.

For the reasons indicated, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Friend and Wilson, JJ., concur.


author: Me. Justice Baldwin

text:
    Eunice Truitt Butler, Administratrix of the Estate of Owen Isom Truitt, Deceased, Appellee, v. Illinois Highway Transportation Company, Appellant.
    Gen. No. 8,501.

      Opinion filed May 21, 1932.
    Barnabas F. Sears and Michel & Barnes, for appellant.
    E. Y. Champion, for appellee.
   Me. Justice Baldwin

delivered the opinion of the court.

On July 13,1929, Owen Truitt, a Methodist preacher of Roseville, Illinois, was riding with his wife in his automobile, which he was driving, on Route Ho. 9 of a hard road system south and east of Peoria. As Route Ho. 9 intersects with Route Ho. 24 there is what is commonly called a “Y,” one branch turns to.the right and travels over Ho. 24 to Peoria, the other branch turns to the left and travels over Ho. 24 to Pekin.

As Truitt was driving his car, he turned to the left into the intersection with Route 24 and as he was in the intersection with his car across the black line in the center of Route 24, he was struck by one of the defendant’s busses which weighed about 15,000 pounds.

The evidence shows that Truitt’s car was struck in the center of the side and carried diagonally northwest on the hard road for a distance of about 50 feet and then into the railing on the west side of Route 24 and broke off four or five posts of this railing. Truitt and his wife were both killed by this collision.

There is some dispute in the evidence relative to the speed at which the deceased was driving, and also as to the speed the bus was being driven. Some witnesses put the speed of Truitt’s car at 40 miles per hour, others at 20 to 25 miles per hour. Some witnesses fix the speed of the bus at 45 to 50 miles per hour, and others at 25 to 30 miles per hour. The evidence in this case on this point is the same as in all automobile accidents, the witnesses varying in their opinions relative to the speed.

There is some discrepancy as to where Truitt drove his car as he started to drive into the intersection of Route 9 with Route 24, but we think it is a fair inference from all of the evidence that up until the time that he saw his imminent danger of colliding with the bus, he was driving his car at an ordinary and reasonable rate of speed and the place where cars ordinarily travel at such an intersection as this.

The main contention in this case is whether the left branch of Route 9 as it turned to the left to go towards Pekin, is a part of Route 9 and a part of the hard road system as designated by the statutes as Routes 1 to 47. If we say that this is a part of Route 9 and the State had not put up signs designating which traffic should have the right of way at. this intersection, then a car coming from the east over this branch of No. 9 would have the right of way over one coming from the south going towards the City of Peoria, and in this particular case Reverend Truitt would have the right of way over the bus of the defendant.

Appellant earnestly insists that the road to the north'has been designated by the State Highway Department as Route 9 and, therefore, the branch to the left is no part of Route 9. The photograph introduced in evidence, defendant’s Exhibit 4, shows a sign erected by the State Highway Department directing traffic over Route 9 to Canton as indicating that the right-hand branch of this road would be termed Route 9. However, defendant’s Exhibit 3, which is taken from the south and shows the view of Route 24 as it extends north and also where the road turns to the east, shows a sign indicating that the branch turning to the right is designated twice as Route 9. . The witness Farrer, an engineer connected with the Highway Department with headquarters at Peoria, Illinois, testified that this “Y,” including the branch to the left, was built as a part of the hard road system of Route 9. (Abst. p. 31.)

Plaintiff, being a daughter of the deceased, as administratrix of the estate of Owen Truitt, brought a suit under the Injuries Act, Cahill’s St. ch. 70, 1 et seq., in the circuit court of Peoria county for damages, alleging that by the negligent operation of the bus of the defendant company through its agent, Truitt was killed. A trial was had and the jury found a verdict in favor of the plaintiff, assessed the damages at $10,000 and at the request of defendant brought in a special finding of fact that the plaintiff’s intestate, at the time of and prior to the collision, was in the exercise of dne care and caution for his own safety. A motion for a new trial was made which was overruled and judgment was rendered on the verdict and an appeal was taken to this court.

It is the contention of appellant, as noted in its brief: first, that the court erred in refusing to instruct the jury to find the defendant “not guilty”; second, that the court erred in giving to the jury the plaintiff’s third given instruction; third, that the special finding of fact and verdict are against the manifest weight of the evidence.

The declaration consists of three counts known as the first, third and fourth. The first count charges general negligence, the third charges a statutory breach in that the bus was operated at a high and dangerous rate of speed and the fourth count charges statutory negligence on the part of defendant in that defendant did not yield the right of way to appellee’s intestate as appellee’s intestate drove over Route No. 9 and as he approached and came to and upon the intersection of Routes 9 and 24, etc.

Proper proof of the age of the deceased, his condition of health, the nature and extent of his family and dependents and of the yearly income of the deceased, were made and no question was raised in the record with reference to these facts.

The main question as we take it for our decision is, whether the place where the accident occurred, being the place where the south arm or “Y” of Route 9 joins or cuts into Route 24, is within the meaning of the Illinois statutes which refer to intersecting highways and the rights of people using it at such intersections.

The Illinois statutes effective (although amended since), at the time of this accident being Cahill’s St. ch. 95a, ][ 34; chapter 121, Smith-Hurd Revised Statlites, 1931, paragraph 234, applies, and upon its interpretation as applied to the facts the decision rests. The first paragraph of the statute provides that motor vehicles traveling upon the public highway shall give the right of way to vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left. Paragraph 2 provides that motor vehicles entering upon or crossing a highway designated as Routes 1 to 46 upon which latter road has been constructed a durable, hard surfaced road, shall come to a full stop before driving on the paved portions of said road and shall give the right of way to vehicles upon said hard road, regardless of direction. This section further provides that the last above portion does not apply to the intersection of two of said hard, durable surfaced roads known as 1 to 46 inclusive and further provides that at the intersection of two hard, durable surfaced roads, being routes 1 to 46, as mentioned in the statute, the Department of Public Works and Buildings may prescribe such traffic regulations relating to the right of way and prescribe stops as traffic conditions, as in the discretion of the department, warrant, and that if the Highway Department does prescribe traffic regulations at the intersection of two such hard surfaced, durable roads, appropriate signs or warning lights shall be erected to give notice of any such traffic regulations.

Routes 9 and 24, respectively, at this point, were hard surfaced State aid roads and a part of the routes designated as 1 to 46 inclusive, in Cahill’s St. ch. 95a, 1Í 34; paragraph 234 of chapter 121, Smith-Hurd Revised Statutes.

It was also proven on the trial and no objection made thereto, that the State Highway Department at or before the time of the accident in question, had not prescribed traffic regulations relating to the right of way nor established any boulevard stops or signs or designated either highway as a stop or through highway at the place where Routes 9 and 24 join at this point.

It is contended by appellee that where two such hard surfaced roads join, being any of the roads designated as Routes 1 to 46 inclusive, the Highway Department may assume jurisdiction in reference to traffic regulations and in the event that they, fail to do so, then the first section of the statute, Cahill’s St. ch. 95a, tí 34, which provides that motor vehicles shall give the right of way to vehicles approaching such intersecting highways from the right and shall have the right of way over those approaching from the left, shall control, and with this contention we agree.

Appellee’s intestate, with his wife, was driving in a generally westerly direction on Route 9 which is a hard surfaced State aid road, toward and upon the joining of said Route 9 with another hard surfaced State aid road known as Route 24. Route 24 ran in a north and south direction from Pekin to Peoria, Route, 9, running in a westerly direction, approaclied Route 24 from the east and at a distance of approximately 200 feet from Route 24-, Route 9 divides into two branches or “Y’s,” one arm of the “Y” going to the right and joining Route 24 in the form of a gradual curve, the other arm of the “Y” going to the left and in a gradual curve joining Route 24. It should be observed that Route 9 also leaves Route 24 at a point further north and continues on in a westerly direction to the west side of the State.

It is common knowledge that in the early days of hard road building in Illinois, where two such roads as these came together in the general plan, the joining of them was usually at right angles but experience gathered from the use of the roads taught those intrusted with the duty of planning further construction that the convenience and safety of persons using the road would be greatly subserved at such places by constructing “Y” connections such as obtained at this point instead of continuing constructing said roads where they intersect, at right angles. This has greatly facilitated, from a safety standpoint, the use of the hard roads at such points and is now the accepted form of intersecting highways in this State.

Appellee’s intestate, as he traveled over Route 9 in a westerly direction and approached Route 24, took the left or south arm of the “Y” at the point where it joins with Route 24 and had just entered into and upon the intersection of the south arm of the “Y” of Route 9 and Route 24, when his car was struck by the defendant’s bus which was approaching from the south and on the left of appellee’s intestate.

The evidence shows that the car driven by the deceased was struck in the center of its left side and was pushed over to the northwest. Defendant’s bus was about 27 to 30 feet long with a gross weight of 15,250 pounds; was coming on its right side of the road on Route 24 and going in a northerly direction. The evidence shows that neither the car driven by the deceased nor the bus driven by defendant’s driver stopped prior to the time of the collision and the collision occurred on Route 24 where the south arm of the “Y” of Route 9 comes into and joins Route 24. The evidence further shows that the cars came together at a time when decedent’s car was crossing the black line or the center of Route 24. There is evidence in the record to the effect that the driver of the bus, before the cars came together, swerved the bus to the left. Under these circumstances each of the contending parties claim that each had the right of way respectively over the other. If deceased had the right of way, then defendant was at fault and if defendant had the right of way, the deceased was guilty of con-tributary negligence and barred in this action, for it is conceded by all that the failure to stop was the proximate cause of the accident.

There is considerable dispute in the record as has already been noted, as to the speed of the respective vehicles and also more or less contention as to exactly where deceased’s car came onto Route 24, but in the view we take of this record, both cars being within the legal prima facie speed limit, it does not make very much difference at what speed the respective cars were proceeding on their way. A fair review of the testimony upon that point would indicate that the bus was going about 40 miles per hour and the other car about 30 miles per hour. Some witnesses testified that the decedent’s car left the south curve of the “Y” and proceeded over onto Route 24 by crossing over some sand or gravel which was located in the unpaved portion of the “Y” as it approached Route 24, forming a small triangle, but that too, in our judgment, is unimportant. The engineer of the State Highway Department, who was called as a witness by appellee, testified (Abst. 31), that the south arm of the “Y” of Route 9 up to the point where it comes into Route 24, was built as a part of Route 9.

Appellant takes the position that the south arm of the “Y” of Route 9 is not in fact a part of Route 9 for the reason that if you are traveling on Route 9 up to a point about 200 feet east of Route 24 where Route 9 divides into two branches or a “Y” and you proceed on the right arm of the “Y,” then and then only are you on Route 9, .because the statute says that Route 9 begins with a public highway at the Indiana State line and runs along in a general westerly direction to Route 24 on the east side of the Illinois river between Pekin and East Peoria, and then goes over Route 24 to Peoria. Appellant further contends that if you proceed on the south arm of the “Y” over Route 9 towards Route 24, that such south arm of the “Y” between the point where Route 9 divides into two arms up to the point where the south arm intersects Route 24, is not in fact a part of Route 9. If this latter contention of appellant be true, then the south arm of this “Y” would neither be a part of Route 9' or of Route 24.

We cannot agree with this contention. This arm of the “Y” was built by the State Highway Department as a part of Route 9 and is just as much a part of it as that portion of the route 200 feet east is a part of Route 9. The hard roads of this State were built for the convenience of travelers who use the same and it is just as important to the traveling public that it may use Route 9 to go to Pekin as it is for the public to use it to go to Peoria. Of course, when the act was passed it provided for the construction of these roads and it was necessary to provide terminals of these respective highways at principal cities through which they should be built, but details of selecting what particular roads should be used or how the respective roads should intersect each with the other were properly left to those intrusted with the duty of constructing them. The matter of joining Route 9 with Route 24 at this point was one of those details and, being left to the discretion and judgment of the Highway Department as to how that joining should be, it, in its wisdom, designed the plan whereby at this point as Route 9 approached Route 24, there should be a “Y” connection made, thus affording travelers an easy and much safer way to use these respective roads in going from points east of Route 24 over Route 9, to points south on Route 24, as well as to points north on Route 24, and likewise for persons using the highway coming from the south on Route 24 and desiring to go east on Route 9 or coming from the north on Route 24 to go east on Route 9. Such a plan is much more convenient for the safety of the' traveling public than if Boute 9 had joined Boute 24 at right angles.

We therefore hold that the south arm of the “Y” of Boute 9 at this point where it intersects Boute 24 is just as much a part of Boute 9 as the north arm of the “Y,” although it is true that Boute' 9 proceeds for a distance over Boute 24 to the north of Peoria from that point.

It is conceded in this record that Boute 9 does not cross and extend beyond Boute 24 at this point. The question is then presented, What are intersecting highways ? To he an intersecting road,, must the road cross the second road and proceed beyond the second road to be an intersecting highway? It therefore becomes material to ascertain what the Legislature meant when the words “intersecting highways” or “roads” were used in the act. In Berry on Automobiles, 4th Edition, page 290, paragraph 299, under the paragraph of intersecting highways, the author uses the following language: “The term ‘intersecting highways, ’ . . . includes all space made by the junction of the streets and space where one street comes into another, although they do not cross.”

“We are clearly of the opinion that the Legislature intended to use the word ‘intersect’ in the sense of joining or touching, or coming in contact with, or entering into, . . . although such public street where another street comes into it does not cross it.” At page 291 of said work the following language appears:

“A street which extends to, hut not beyond, another street intersects the same, and is an intersecting highway and comes within the meaning' of a statute regulating the operation of automobiles when approaching the place where streets cross or intersect.”

In Manly v. Abernethy, 167 N. C. 220, 83 S. E. 343, at page 344, the court uses the following language: “We are clearly of the opinion that the Legislature intended to use the word in the sense of joining or touching, or coming in contact with, or entering into, and did not intend that the word1 ‘intersect’ should be so restricted in its meaning as not to protect pedestrians and other persons using a public street at a point or space where another street comes into it, although it does not cross it. We should, therefore, give the word its broader meaning, which will include all space made by the junction of streets where accidents are just as likely to occur as where the two streets cross each other. . . . We have seen that the word ‘intersect’ is defined by Dr. Webster as ‘to cut into one another,’ and also to ‘meet and cross each other.’ . . . To cut into does not necessarily mean to divide by crossing between two objects, but may rightly be constructed as entering into, but not passing beyond.” In the case of Bettilyon v. C. E. Smith & Son, Inc., 96 Conn. 16, 112 Atl. 649, at pp. 650 and 651, the Supreme Court of Errors of Connecticut uses the following language: “The driver of any vehicle is approaching an intersecting highway when he is coming near to the line where one highway joins another. That is where the intersection begins, and approaching there it had become his duty to grant the right of way at such intersection to any vehicle approaching from his right. The words ‘such intersection,’ reasonably construed, mean all the space included within the lines of both highways where ‘any highway joins another at an angle,’ if it crosses the other; or, if one highway joins, but does not cross, the other, all the space that would be included within the lines of both extended to cross each other.”

In the case of Buckey v. White, 137 Md. 124, 111 Atl. 777, at page 778, it is said:

“The theory upon which this objection rests is that a lateral road connecting with, but not crossing, another road does not intersect the latter within the meaning of the statute, and that the driver of an automobile while driving it along a main or trunk road is not required to yield the right of way to a machine approaching from his right along such a lateral road. Such a construction of the statutes is in our opinion too narrow and is opposed to its true meaning and intent. The purpose and design of the statute is to protect the traveling public against collisions at points where roads, running at an angle to each other, join, and to accomplish this end it provides a simple rule of universal application which so clearly defines the respective and relative rights of the drivers of automobiles approaching each other over such connecting roads that it eliminates the confusion and uncertainty which formerly prevailed under such circumstances as to which car was entitled to the right of way. The mischief for which the act was enacted as a remedy was this: That in the case of automobiles approaching each other along connecting roads running at an angle to each other in such a manner that, unless one of them gave way to the other, a collision would result. . . . The danger of such accidents, which the Legislature intended by this statute to remove, was the same at all points where two roads joined, and whether the roads so connecting actually crossed each other, or merely connected, could not possibly lessen or increase that danger.”

In the case of Hayes v. State, 11 Ga. App. 371, 75 S. E. 523, at 527, the court uses this language:

“In reference to construction of the word ‘intersecting’ where one street ended at a point where it touched the other, on the contrary, we think that the two streets did intersect each other. . . . There would be just as much reason for holding that one of the streets ended at the farther margin of the other street as there would be in saying that it ended when it touched the first margin of the street. . . . The latter highway extended across the margin of the former highway, and the case is plainly within the spirit and reason of the law.”

In onr own State the question arose in the case of Geschwinder v. Comer, 222 Ill. App. 417, and the court said: “Where a street runs into and ends at another street at right angles with it, they intersect within the meaning of statutes or ordinances governing the right of way of vehicles at intersecting streets.”

In the light of these authorities we are of the opinion that at the place where this accident happened, Routes 9 and 24 respectively were intersecting highways within the meaning of the statute. As we have already pointed out, the Highway Department not having erected any guides or posted any notices or signs at this point, then the first paragraph of the statute applicable to cases of this character applies.

It was therefore the duty of the bus driver of defendant to stop and yield the right of way to the car of appellee’s intestate as the latter car approached and came onto the intersection of Routes 24 and 9.

It is our view that our holding in this regard disposes of appellant’s contention that it was error for the court to give to the jury the third plaintiff’s given instruction, for it was given in conformity with the theory upon which this case is decided by us and accordingly we hold that it was not error to give that instruction.

The remaining question in the record is as to whether or not the general verdict and the special finding of the jury were manifestly against the weight of the evidence. It is true that defendant below had some 10 or 12 witnesses, most of whom were eyewitnesses to the accident, while the plaintiff below had but two or three witnesses, but there was substantially no contention between the parties as to the material facts in this ease. As we have already pointed out, to our minds it is immaterial whether intestate’s car was going" 25 or 35 miles per hour or whether defendant’s bus was going 30 or 40 miles per hour, or just where in the intersection was the exact spot where the cars came together, so long as it was in the intersection. The main fact was, who had the right of way at this point and was it yielded to him, by the one whose duty it was to yield. Under the facts in this case that was a question of law and we have decided that and approved the instruction the court gave on that point.

The jury, at the request of the defendant, found particularly that the intestate was not guilty of contributory negligence and in so doing it followed the instruction of the court as to the law upon that question. The verdict and special finding were in accordance with the weight of the testimony and should not be disturbed.

For the reasons hereinbefore indicated we are of the opinion that the action of the trial court in this case should be and the same is hereby approved.

Judgment affirmed.