author: Mr. Presiding Justice Hebel

text:
    Gertrude A. McGuire, Appellee, v. Herbert McGannon, Appellant.
    Gen. No. 37,669.

      Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    McKenna, Harris & Schneider, of Chicago, for appellant.
    Arthur Gr. Baumann, John C. Laux and Donald P. Vail, all of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for the plaintiff entered by the court on the verdict of a jury in the sum of $2,500, recovered for personal injuries sustained by the plaintiff in an automobile accident which occurred on August 13, 1932. The plaintiff’s action is based upon the provision of the statute known as Cahill’s St. 1933, ch. 95a, 43 (ch. 121, sec. 243, Smith-Hurd 1933 Ill. Stat.). The material part of the statute which applies is as follows:

“Provided, however, that no person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative, in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”

The plaintiff’s declaration consists of three counts. The first count alleges that on August 13, 1932, the defendant by one Angeline Antonucci, the agent of the defendant, was driving defendant’s automobile in which plaintiff was riding at defendant’s invitation and request; that the automobile was being driven along Crawford avenue at a point where Crawford avenue intersects 135th street, Cook county, Illinois. The breach of duty alleged is as follows:

“Angeline Antonucci, the servant and agent of the defendant, Herbert McGannon, then and there failed to keep a lookout ahead and in the direction of travel or of danger reasonably to be apprehended, and to observe and heed the warning signs and stop sign on the right side of Crawford Avenue at and near the intersection aforesaid, then and there intentionally, purposely, wilfully and wantonly, in reckless disregard for the safety of plaintiff, drove, managed and operated the said automobile in which plaintiff was riding as a guest and passenger so as to cause it to run into a ditch and embankment at the end of the pavement of said Crawford Avenue, where it is intercepted by 135th St. in the County of Cook and State of Illinois. ’ ’

Count 2 is, in part, as follows:

“That Angeline Antonucci failed to observe the warning signs and stop sign on the right side- of Crawford Avenue, at and near the intersection aforesaid, and then and there drove, managed and operated the said automobile in which plaintiff was riding as a guest and passenger so as to cause it to run into a ditch and embankment at the end of the pavement of the said Crawford Avenue, where it is intercepted at 135th St.”

Count three is exactly the same as count one, except that it contains an additional paragraph setting out the guest law section of the Motor Vehicle Act, which appears hereinabove.

To the declaration, the defendant filed a plea of the general issue and a special plea denying the operation, management and control of the automobile.

From the facts in evidence in support of the pleadings it. appears substantially that the plaintiff on the evening of August 13, 1932, was one of a party of four that was going to attend a dance at a golf club near Chicag’o; that about nine o ’clock that evening the defendant and one Collins called at plaintiff’s home in defendant’s Oldsmobile coupe; that they then called for Miss Antonucci at her home and started to' the country club; that in driving to this country club the defendant drove with Miss Antonucci sitting next to him, Collins sitting next to her on the outside, and the plaintiff sitting on Collins’ lap in the front seat of the automobile. The party reached the country club about ten o’clock. They sat at a table with four or five other couples in a room adjoining the dance floor. All four of them drank gin highballs. Three pint bottles of gin were produced by Collins on the night in question, and from the record, each of the women had three gin highballs and the men had about six. They left the country club about one o’clock in the morning for home. When they left, the four of them were seated in the front seat, Collins driving. He backed the car in leaving the club house grounds, and in doing so collided with another car and knocked off the tail light on defendant’s car.

There is a conflict in the evidence as to the point where Miss Antonucci started to operate the car. The facts are, however, that after a discussion by Miss Antonucci and the plaintiff, it was decided by the women that Miss Antonucci had better drive the car, and the defendant was asked by Miss McGuire whether it would be all right for the defendant to permit Miss Antonucci to drive, and upon request, the defendant made no objection and turned the car over to Miss Antonucci. From the time she took over the car for the purpose of driving it, she was in control of the machine until the accident happened. After the car had proceeded north on Crawford avenue for a mile or so, Collins, who was seated with the plaintiff in the rumble seat, became ill and knocked on the partition of the car and asked Miss Antonucci to stop, that he was nauseated. The car was stopped and remained there for five minutes. Thereafter the car continued north on Crawford avenue until it approached 135th street. It was slightly cold on that night and clear for the middle of August, and the pavement on Crawford avenue was dry.

Both Collins and the plaintiff testified that as they approached 135th street, they felt the car bumping or vibrating, and that was the last thing they knew until they awoke in the hospital.

Miss Antonucci, the driver, testified that she had driven a car about 10 years, and had driven this car before; that she was not familiar with the country road, and was not driving as fast as she would have driven if she had been familiar with the road; that her eyesight was normal, and that she was watching the road as she drove; that she could see to the right and to the left, and that there was nothing to obstruct her view of any signs on the side of the road; that the headlights were on and that she could see 10 or 15 feet ahead; that when she was about one-half block away from the intersection, as she approached the intersection of Crawford avenue and 135th street, she saw a car coming on 135th street, with a spotlight turned on. She slowed down for the intersection as she saw the other car coming. She knew she could make the intersection before the other car came to the corner, which car was 50 yards away at the time she was 25 yards distant. She kept on going through the intersection, she did not speed up. The spotlight on the other car was pointed diagonally across so as to indicate to the driver the edge of the road. The reflection of the spotlight was so great she could not see that the pavement ended there, and she kept going straight ahead. She crossed the intersection before the other car did. The spotlight was so bright she did not see the end of the pavement and did not realize that the pavement on Crawford avenue ended there until the car went into a ditch and she was rendered unconscious.

The defendant’s testimony is that as they came to the intersection of 135th street there was a car coming from the west with a bright spotlight. They were going 30 or 35 miles an hour. They came into the intersection first, passing in front of the car coming from the west about 25 yards. He did not see any stop sign along the road, and he had never been over this particular road before. He was looking at the other car and was not looking for signs. His car did not slacken speed, but went straight ahead. They could not see the end of the road as they approached it because of this spotlight.

At Crawford avenue the following’' signs are placed: South of 135th street was an “End of the pavement” sign. North of this sign, at a point 300 feet from Crawford avenue, was a warning sign entitled, “Stop sign 300 feet. ” At Crawford avenue, there was a stop sign of plain black and yellow. Crawford avenue is a concrete pavement. These signs were located at the right side of the pavement going north, being approximately eight feet east of the edge of the pavement, and are about three and one-half or four feet high. As a result of the accident the plaintiff was injured.

The court at the request of the plaintiff instructed the jury, in effect, that for acts to become wilful and wanton it must be shown by the weight of the evidence that there was a particular intention to injure, or a degree of wilful and wanton recklessness which would authorize a presumption of an intention to injure generally on the part of the person guilty of such action; otherwise there is no authority in law to conclude that an injury was intended or that such an act on the part of the person complained against was either wilful or wanton.

In applying this instruction to the facts, the jury no doubt disregarded that part of the instruction, because not applicable, that the driver was guilty of a deliberate intention to injure the plaintiff. No other conclusion could have been reached by the jury from the facts that appear in this record. Therefore, was there such evidence in the record as would justify the verdict of the jury upon the evidence that there appeared a degree of wilful and wanton recklessness from which the presumption would arise of an intention to injure generally on the part of the operator of the automobile in question? Of course, as stated by the court in the instruction, if from the evidence there was a failure to establish the acts of the driver as intentional, or that such acts on the part of the person complained against were either wilful or wanton, it then follows that the plaintiff could not recover in this case.

The facts are that the plaintiff and Miss Antonucci, who drove the automobile at the time of the accident, considered the condition of the defendant, the owner of the machine, and Collins, one of the party, after leaving the club house at one o’clock in the morning, and it was determined by both the plaintiff and Miss Antonucci that she, Miss Antonucci, was to drive the automobile, and this was consented to by the defendant.

As a part of this journey, the car was driven on Crawford avenue in a northerly direction. There is no evidence which would indicate that Miss Antonucci drove at an unusual rate of speed, or did anything, as a matter of fact, unwise in such operation of the automobile. However, it appears that Miss Antonucci was requested by Collins to stop the car after it had proceeded on Crawford avenue, as he was sick and nauseated. She stopped the car and after five minutes started the automobile and again proceeded in the same northerly direction.

The record is silent as to any complaint by any of the parties of the manner in which the driver was operating the car. When the car reached 135th street, the driver noticed an oncoming car from the west. From that car a spotlight was directed in a diagonal direction across the road, and, in passing this intersection, the driver of defendant’s car was blinded by the rays of this spotlight on the automobile coming in an opposite direction. The driving* of the automobile over the intersection was not a reckless interference with the right of way of the oncoming* automobile from the west. Up to that point there had been no act which could be charged against the driver as being wilful or wanton.

This unfortunate accident in which the plaintiff was injured occurred while crossing the end of the Crawford avenue pavement and running* into a ditch, causing* damage to the car and injury to the occupants, of which the plaintiff was one.

There is lack of evidence as to the condition of the roadway at the end of the concrete pavement on Crawford avenue. The only sign displayed was the one that the pavement ended at the intersection. As far as we can determine from the record, the roadway was not barricaded so as to prevent persons from driving* automobiles or vehicles north on the road from the end of the concrete pavement. The inference may be drawn that the roadway beyond the concrete pavement was to be used, for the reason that there were ho signs which would indicate that the roadway was blocked.

The driver of the car was selected and consented to by the parties and had had 10 years’ experience in driving, but from the record it appears that she was not familiar with the road in question. This, of course, without any other circumstance in evidence, would not indicate a wilful and wanton act in driving upon a road with which she was not familiar.

The fact that the driver of the automobile was blinded for a moment by the spotlight so that she could not see the signs on the side of the road was not of itself wilful. As a matter of fact, the operation of this spotlight on the oncoming car from the west cannot be chargeable as a negligent act of the defendant, but rather the act of the driver of this oncoming automobile, of which the defendant had no control.

In a somewhat analogous case wherein a guest instituted an action for injuries alleged to have been sustained as the result of gross negligence, the California Court of Appeals in the case of Binns v. Standen, 118 Cal. App. 625, 5 Pac. 637, held that the defendant in this action, being temporarily blinded by the sun, was not grossly negligent in running into an embankment while rounding a curve at 35 miles per hour.

The driver of the automobile for the defendant is charged with wilful and wanton conduct in the operation of the automobile as his agent. Apparently, from the record, the operation of the car by her was careful, and was questioned by the plaintiff only as to the intersection in question. It seems rather strange that this driver would operate the car in so wilful and wanton a manner as to be chargeable with a desire to injure the occupants of the very car of which she was the driver. This would seem to be contrary to the law of self-preservation. The mishap occurred not because of acts which were wilful- or wanton, but for the reason that the spotlight interfered with her vision, and the further fact that the end of the road was not so protected that drivers of oncoming cars would be warned as to the condition of the road beyond the end of the concrete pavement.

The courts of last resort have indicated generally that the subject of wilful acts is to be considered from the standpoint of the evidence in each particular case, but analogous cases may be applied to shed some light and to be helpful in determining whether the defendant’s agent acted wilfully and with wanton recklessness at the time of the accident.

In the case of Franzoni v. Ravenna, 105 Vt. 64, 163 Atl. 564, the Supreme Court of Vermont said:

‘ ‘ Counsel agree that there can be no recovery against Ravenna unless his handling of his car amounted to gross negligence. They agree that the term ‘gross negligence’ is correctly defined in Sorrell v. White, 103 Vt. 277, 153 A. 359, and Shaw v. Moore (Vt.), 162 A. 373. So the rule that we are to apply is that gross negligence is higher in degree and more culpable in character than ordinary negligence — that it amounts to a failure to exercise a slight degree of care.

“Tested by this rule, the record before us fails to justify a recovery against Ravenna. That he was careless, either in getting into the two ruts he appears to have chosen, or in his persistent attempts to force his car out of them, or both, may be admitted. That he should have stopped his car long enough before he hit the truck to have avoided a collision is quite apparent. But he was all the time trying to avoid an accident. He was doing his best to accomplish that result. He made a mistake, to be sure, perhaps a series of them; but he was not so far wrong as to evoke a protest from any of his passengers, and there is nothing in the record to indicate an indifference to his duty to his guests or an utter forgetfulness of their safety.”

In the case of Jones v. Massie, 158 Va. 121,163 S. E. 63, in quoting the language of this case, the court said:

“The law is well settled that a person using a street or public way in the ordinary manner has the right, in the absence of knowledge to the contrary, to act on the assumption that the street or way, throughout its entire width, or so much of it as is intended for travel, is in a reasonably safe condition, and he is not required as a matter of law to be on the lookout for defects or obstructions therein. City of Richmond v. Courtney, 32 Grat. (73 Va.) 792; 43 C. J. 1078; Bedford City v. Sitwell, 110 Va. 296, 65 S. E. 471; City of Richmond v. Rose, 127 Va. 772, 102 S. E. 561, 105 S. E. 554.

“Viewing the facts and circumstances in the light of the established rules of law on the subject, we feel compelled to hold that, as a matter of law, Mr. Jones cannot be held guilty of that degree of negligence which renders him pecuniarily liable for the unfortunate accident sustained by Mr. Massie on the occasion in question. There is no evidence to indicate that, in failing to see the conditions at the crossing in time to avoid the injury, he ‘knowingly or wantonly’ added to the risks which Mr. Massie, as his guest, had assumed.” See also Biersach v. Wechselberg, 206 Wis. 113; Giddings v. Honan, 114 Conn. 473.

Upon the question of agency involved in this litigation, it is apparent from the facts that at the time Miss Antonucci assumed control of the wheel to drive the car, it was with the consent of the defendant; that he made no objection, and she continued until the accident happened. The question of agency was passed upon by the jury under the instructions of the court, and we are not disposed to disturb the verdict upon that ground.

Other questions are raised in the record, but from the conclusions we have reached, as stated in our opinion, the acts of the defendant by his agent were not such wilful and wanton acts as would justify the verdict of the jury and the judgment entered by the court. Accordingly, the judgment will be reversed.

Judgment reversed.

Wilson and Hall, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Ruby Collins, Administratrix of the Estate of Robert Edward Collins, Deceased, Appellee, v. John Hastings, Sr. and Donald Hastings, Appellants.
    Gen. No. 9,024.
    Opinion filed January 17, 1936.
    Barnes & Magoon, of Lacón, for appellants.
    Hamilton, Black & Klatt, of Peoria, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal by John Hastings, Sr. and Donald Hastings, from a judgment rendered against them upon the verdict of a jury for $6,000 and costs in favor of Ruby Collins, administratrix of the estate of her deceased son, Robert Edward Collins.

It appears from the record in this case that the appellant, Donald Hastings, and the deceased, Robert Edward Collins, on November 21,1934, were attending high school in Sparland, Marshall county, Illinois. At about 12:20 p. m. on that day the said Hastings and the said Collins, the deceased, were riding in an automobile which was being driven by Donald Hastings on State Route 29 between Sparland and Chillicothe. It was raining and misting and the pavement was wet. At a point just south of the Peoria-Marshall county line, Hastings, while driving up the slope of a hill, attempted to pass a car immediately in front of him, and the car in which Hastings and Collins were riding collided with a truck coming from the opposite direction, and as a result thereof Collins was so seriously injured that on November 26,1934, he died. It appears from the evidence that Collins was 18 years of age the day he was injured and that Donald Hastings was 16 years of age on August 15,1934; that they were seniors attending high school and the car Donald was driving belonged to Donald’s father and that at the time of the collision Donald was on his way to a garage in Chillicothe for the purpose of having the brakes, which were defective, adjusted and repaired.

The record further discloses that no guardian ad litem was ever appointed by the trial court for the minor defendant Donald Hastings, and it is insisted by appellants in this court that it was error for the trial court to proceed with the trial of this cause without first appointing a guardian ad litem for this minor defendant. Counsel for appellee insist that inasmuch as this omission was not called to the attention of the trial court and was not raised in appellants’ motion for a new trial, it has not been properly preserved by appellants, but has been waived and cannot be raised for the first time in this court. In support of this contention our attention is called to the case of Martin v. Starr, 255 Ill. App. 189. Such is the holding of that case, but the only authority cited in the Martin case as sustaining its conclusion is Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589. An examination of the Yarber case discloses that the rights of a minor were not involved therein and that case is authority only for the proposition that if certain points in writing, particularly specifying the grounds of the motion for a new trial, have been filed, the party will be deemed to have waived all causes for a new trial not set forth in his written motion and in an appellate court he will be confined to the reasons specified in the written motion.

In 31 C. J. 1121, it is said that while in some jurisdictions it has been held that a judgment against a minor not represented by a guardian ad litem is void and subject to collateral attack, without resort to an appeal, still the weight of authority is to the effect that where the court has otherwise jurisdiction, a judgment or decree rendered against an infant without the appointment of a guardian ad litem, while it may be erroneous and subject to be reversed, is at most only voidable and remains in full force and effect until reversed on appeal or error or set aside by direct proceedings and is not subject to collateral attack and that this rule applies to decrees in equity as well as judgments at law. 22 Cyc. 641 is to the same effect and in 22 Cyc. 636, it is said: ‘ ‘ The record should affirmatively show that a guardian ad litem was appointed to appear and answer for infant parties, otherwise the judgment or decree will be reversed on error or appeal. ’ ’

The early case of Peak v. Shasted, 21 Ill. 137, was an action of assumpsit on a note executed by Peak, a minor. In that case it appeared that a judgment by default was rendered against Peak at the July term, 1858, of the circuit court of Macon county and at the November term following he made a motion to set aside the judgment on the ground that he was a minor at the time the judgment was rendered and no guardian appeared or was appointed to defend the action. In reversing the judgment of the trial court, which denied his motion, the Supreme Court said that at the time the judgment was rendered the defendant was a minor and the record failed to show that there was any appearance entered for him by a guardian and that for this error the judgment should be set aside. It was further stated that a minor can only appear to defend by a guardian and not in person or by attorney and a judgment rendered without any guardian is not void, but merely voidable on error brought. “It would then follow,” concluded the court in its opinion, “that if the appellant was at the time of the rendition of the judgment a minor, there was error in fact in its rendition, for the want of appearance by a guardian. The plaintiff should have applied to the court, if the defendant was a minor, and had a guardian ad litem appointed, and having failed to do so, he cannot object if the judgment is set aside, on its appearing that the defendant was a minor. ’ ’

In McCarthy v. Cain, 301 Ill. 534, the court, quoting from Simpson v. Simpson, 273 Ill. 90, said: “A judgment or decree against a minor without the appointment of a guardian ad litem to represent him in the suit is voidable and may be set aside by a proper motion made in the court where the judgment or decree was rendered and the minor allowed to make his defense, and this may be done at a term subsequent to that in which the judgment or decree was rendered.” See also Hall v. Davis, 44 Ill. 494.

In White v. Kilmartin, 205 Ill. 525, the court, in reversing a decree in a proceeding to contest a will, where it appeared no guardian ad litem was appointed for minor defendants, said: “We have repeatedly held that it is reversible error to neglect to appoint a guardian ad litem for infants. Counsel for defendants in error cites authorities to support his contention that the error does not render the judgment void, but only voidable, and that a motion to set aside the decree in the trial court was the proper method of procedure in this case: but all the authorities cited are where the attack on the decree of the trial court was collateral. ’ ’

In Thurston v. Tubbs, 250 Ill. 540, the court declined to determine the merits of the controversy stating that it would be improper to do so until a minor defendant, who claimed to be the owner in fee of the premises involved in the proceeding, had an opportunity to be heard by a guardian ad litem appointed by the court to properly protect his interests. In reversing the decree of the lower court, the Supreme Court said: “The record should affirmatively show that a guardian ad litem was appointed to appear and answer for in-. fant parties, otherwise the judgment or decree will be reversed on error or appeal.”

From these authorities and many others, it is apparent that the failure to appoint a guardian ad litem is an error which the minor could not waive in the trial court. It is therefore difficult to understand why he could be deemed to have waived it by failing to specify it as a ground in his motion for a new trial. Judgment against a defendant is not rendered by the court until after a ruling has been made on a motion for a new trial. To say that the judgment, which is rendered after the motion for a new trial is denied, is voidable in the trial court because a guardian ad litem was not appointed for a minor defendant, still is valid in an appellate court when the record of the trial court is being reviewed upon a direct appeal would create an anomaly in the law, if in such appellate court, upon a direct appeal, the objection to the judgment could not be raised and the avoidable judgment avoided. It is our opinion that the objection is one that can be taken for the first time on direct appeal and therefore the judgment in this case against the minor defendant Donald Hastings must be reversed.

Under the present Practice Act it would not be improper for this court to reverse the judgment against Donald Hastings and affirm it as to the defendant John Hastings, Sr. Minnis v. Friend, 360 Ill. 328; Rhoden v. Peoria Creamery Co., 278 Ill. App. 452. In our opinion, however, this case, as to both defendants, should be passed upon by another jury. Certain remarks made by one of the counsel for appellee in his argument to the jury were highly prejudicial and served only to inflame the minds of the jurors against appellants and their attorney. There is nothing in the record which justified counsel for appellee stating to the jury that counsel for appellants had lied to the jury, and although the trial court properly sustained objections to such argument and disapproved of such language, still counsel for appellee repeated the substance of the charge and again said that counsel for appellants had lied to the jury. The use of such language was unethical and reflects upon counsel who resorts to such argument in order to win lawsuits. Such conduct should not be tolerated, and this court will not hesitate to reverse judgments obtained by such practices.

In the present state of the record, we decline to pass upon the question whether the evidence justified the verdict returned in the trial court, but for the errors pointed out in this opinion, the judgment of the circuit court of Marshall county is reversed and this cause is remanded.

Reversed and remanded.


author: Mr. Justice Wolfe

text:
    Milton W. Paul and Anna Paul, Appellees, v. City of Rockford, Appellant.
    Gen. No. 8,970.
    Opinion filed January 17, 1936.
    Charles S. Thomas, Corporation Counsel, and Ale O. Ahlstrand, City Attorney, for appellant.
    Smith & Menzimer, of Rockford, for appellees; Lisle W. Menzimer, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

On November 26, 1927, the county court of Winnebago county entered an order confirming a special assessment against a parcel of land described as the west 150 feet of the tract for the construction of a public sewer in Bockton avenue. The proceeding was prosecuted by the city of Bockford under the Local Improvement Act. The assessment is payable ■ in 10 annual instalments some of which are past due and unpaid and some of which have not yet matured. When the assessment was made, the tract was not platted into lots. The tract is irregular in shape and extends eastward from Bockton avenue for some distance, but it is to be noted that only the west 150 feet of the tract was assessed for the sewer. On June 26, 1929, the said county court signed an order confirming a supplemental assessment against the parcel of land.

After the first assessment was made the tract of land, including the parcel assessed, was platted by H. D. Thomas, the owner, into 13 lots. The plat which shows that the tract had been divided into lots was recorded in the .office of the recorder of deeds of Winnebago county on May 18, 1928. This plat is designated thereon as “H. D. Thomas Subdivision.” We assume that the recorder of deeds did not record the plat unless it was approved by the authority of the city of Bockford or by some city officer designated for that purpose by resolution or ordinance of the legislative authority of the city. Ill. State Bar Stats. 1935, ch. 115, i[ 14. (Sec. 13, ch. 115, Smith-Hurd Bev. St.; sec. 134, ch. 24, ib.) Also that the plat complied with chapter 109 of the Bevised Statutes and the ordinances of the city of Bockford. (People v. Massieon, 279 Ill. 312, 316.)

Examining the plat, which was introduced in evidence, and confining our attention to the parcel of land assessed, we see that lots numbered 1, 2, 3, 4, and 5 are contiguous on their west sides to Bockton avenue which runs north and south. Lot 1 is the north lot and the other lots lie south thereof in position, in numerical order as stated, and these five lots form the western tier of lots of the subdivision. Lot 1 abuts 50.12 feet on Bockton avenue; lot 2 abuts 50 feet on Rockton avenue. South of lot 2 is designated Knight avenue 43 feet and running east and west through the subdivision. Lot 3, which adjoins Knight avenue on the south, abuts on Rockton avenue 50 feet. Lot 4 abuts on Rockton avenue 50 feet. Lot 6 abuts on Rockton avenue 63.67 feet. We have stated the widths of these lots, and the total of their widths in feet, added to the width of Knight avenue, is the entire distance which the parcel of land assessed abuts on Rockton avenue, namely 305.79 feet.

The parcel of land assessed is described in the assessment roll as follows: “The West 150 ft. of the following described tract: Part of the S. % of the NW% of Sec. 14-44-1, bounded as follows, to wit— Beginning at a point on the W. L. of said Sec., 153 feet 1ST. of the intersection of said W. L. with the Northerly L. of the right of way of the C. M. & St. P. Ry. Co., thence northerly along said Westerly L. of said Sec. to a point 664.95 feet S. of the N. W. corner of the S. y% of the N. % of the NW % of said Sec. 14, thence E. at right angles with said W. L. of said Sec. 14, 435.009 ft. to the Westerly line of said railway right of way, thence Southwesterly along said railway right of way to the intersection of a line drawn from place of beginning at right angles with the Westerly line of said Sec., thence Westerly along said last mentioned line, 144.2 ft. to the place of beginning.” The wést line of said section 14 is 33 feet west of, and runs parallel with, the west lines of lots 1, 2, 3, 4 and 5 and this 33-foot strip of land which lies between these lots and the west line of section 14 is a part of Rockton avenue. The recording of the plat of the tract of land described in the assessment roll was a dedication, and the construction of the sewer an acceptance thereof, of a strip of land 33 feet wide and 305.79 feet long as a part of Rockton avenue. (People v. Massieon, supra.) Lots 1 and 2 extend eastward from the eastern boundary line of Rockton avenue for a distance of 124 feet; lots 3, 4, and 5 each extend so eastward a distance of 11Q feet.

These five lots, together with the width of Knight avenue and the strip of land dedicated a part of Bock- . ton avenue by the plat, comprise approximately the parcel of land assessed, namely, the west 150 feet of the said tract of land.

It is not contended that the tract of land was platted to evade the special assessment against the parcel of land in question and we have no reason to believe that the laying out of the lots in the tract was made in bad faith.

Lots as platted in the subdivision have been sold, and the dedication of Knight avenue as a way for travel, or for street purposes, is irrevocable by the former owner of the land. ' (Saunders v. City of Chicago, 212 Ill. 206; People v. Ricketts, 248 Ill. 428; Stevenson v. Lewis, 244 Ill. 147; Swedish Evangelist Lutheran Church v. Jackson, 229 Ill. 506.) Lots 6 to 13 of the subdivision front on Knight avenue as the same is marked on the plat. These last named lots are not included in the parcel assessed for the sewer. The owners of these lots have the right to the use of Knight avenue as a street (although it is not accepted by the city of Bockford as a public street), unless deprived of that right by the process mentioned in the next paragraph.

There is no assessment for the construction of the sewer against lots 1, 2, 3, 4 and 5 of the H. D. Thomas subdivision, nor any of them, and no judgment for unpaid instalments of the assessment can be taken against the lots, or any of them, as such. A judgment for delinquent instalments would have to be taken against the parcel of land which is the west 150 feet of the tract of land described in the assessment roll. (Murphy v. People, 120 Ill. 234.) A tax sale of this parcel of land would result in selling the east 33 feet of a part of Bockton avenue. If the city has accepted the irrevocable offer of Thomas to dedicate to public use as a public street, that part of Knight avenue shown on the plat of the subdivision, then the west 150 feet of Knight avenue which lies immediately east of Rockton avenue would be disposed of if sold at tax sale. If Knight avenue, as shown on the plat, has not been accepted as a public street by the city and a sale of the parcel assessed would be for delinquent assessment instalments, then such 150 feet of Knight avenue would come under the control of the tax sale purchaser who would have the right to close said 150 feet of the highway designated on the plat as Knight avenue. Upon the happening of the above contingency (the tax sale of the property assessed), the owners of lots in the subdivision would sustain serious injury to their properties.

After the plat was recorded, Thomas, not having complied with Ill. State Bar Stats. 1935, ch. 120, If 371 (section 371, chapter 120, Smith-Hurd Rev. Stats. [1935]), sold lots 1, 2, 3, 4, 5 and 6 to different persons who are now the respective owners of the lots. Due to the unpaid assessment on the parcel of land assessed, the situation has become burdensome and oppressive on the owners of these lots.

The injury which would result to the' owners of lots in the subdivision in case Knight avenue were closed, is of such a serious nature that fair-minded men must agree that the assessment against the parcel of land should be apportioned to lots 1 to 6 inclusive so far as these lots are benefited by the construction of the sewer in Rockton avenue, if it can legally and equitably be done. The assessment is apportionable equitably among the six lots so far as the rights of the owners of these lots are concerned.

The parcel of land assessed, touching 305.79 feet on Rockton avenue and having a depth of 150 feet, was assessed about $1,000 for the construction of the sewer, no doubt on the theory that the parcel could be platted into lots fronting on Bockton avenue. If the parcel is sold for unpaid assessment instalments, it will, no doubt, be used and sold as lots as platted with the improvements on the lots. The situation has become ironical and intolerable.

We are of the opinion, under the particular facts in the case, that any owner of a lot in the subdivision should be afforded a remedy by the courts to correct the situation which confronts him,if it is legally possible to do so. Having arrived at this conclusion, this appeal will be further considered.

The several instalments of the assessment maturing prior to January 1, 1932, were paid as they matured. On December 14,1934, Milton W. Paul and Anna Paul, the owners of lot 5 of the H. D. Thomas subdivision, filed their petition in the circuit court of Winnebago county to apportion the special assessment. The 4th, 5th and 6th instalments were then due and owing and they totaled,, with interest $424.21. The 7th, 8th, 9th and 10th instalments, the petition alleges, become due on the first day of January 1935, 1936, 1937 and 1938, respectively, each such instalment being in the amount of $99.78. After the petition was filed it was amended by alleging that the west seven feet of lot 6 was benefited by the construction of the sewer; also, that that assessment should be apportioned to each of lots 1 to 6 in proportion to the benefits received by each lot from the construction of the sewer, and no more.

The petitioners allege they are ready and willing to pay that part of the instalments which are now due and owing, including that of January 1, 1935, which the court should find is properly due and owing from them as owners of lot 5; that unless the court apportions the assessment, proceedings can be taken against said lot 5 for the sale thereof on account of nonpayment of past due instalments of the assessment; that the petitioners do not have money or property sufficient to pay, or means of obtaining sufficient money to pay all of said unpaid instalments; that unless an apportionment is made by the court, petitioners will be forced to permit lot 5 to be sold for tax delinquencies and will, in the event thereof, be forced to lose said lot 5 which is improved with a dwelling and now occupied by them as a homestead.

The petition prays that the assessment may be apportioned among the six lots according to the benefits accruing to each lot from the construction of the sewer, and that the proper authorities may be directed to spread upon their records the apportionment as ordered by the court.

The owners of lots 1, 2, 3, 4, 5 and 6 entered their appearances and expressly consented to the entry of an order apportioning the assessment as prayed for in the petition. The city of Rockford was made a party defendant and filed its answer denying that the assessment should be apportioned.

The parties have filed a written stipulation to the effect that the true facts are set forth in the petition and amendment thereto, and that if testimony were taken, those facts would be duly proven.

A hearing was had before the chancellor and the petitioners introduced as a witness, Raymond Orput, the city engineer of the city of Rockford, who testified that he had an opinion as to what would be the fair and equitable portion of the assessment to be borne by lots 1, 2, 3, 4, 5 and the west seven feet of lot 6. He stated that each of such lots should bear the same proportion of the assessment as the area of each lot bears to the total area of the parcel assessed. That lot 1 should bear 19.6 per cent of the total assessment; lot 2, 19.4 per cent; lot 3, 17.8 per cent; lot 4, 17.8 per cent; lot 5, 22.4 per cent; lot 6, 3 per cent. These percentages were the same as stated in the petition. Orput was not cross-examined and no other evidence was introduced.

The court rendered a decree.finding that the assessment was levied against the parcel of land in question according to the benefit it would derive from the improvement; that said lots 1, 2, 3* 4, 5 and west seven feet of lot 6 are benefited by said improvement in direct proportion that the area of each lot, or part thereof, bears to the total area of the parcel assessed. The court ordered that instalments 4 to 10 inclusive be apportioned according to the percentages as testified to by the city engineer and that upon payment to the proper authority of that portion of any instalment, 4 to 6, inclusive, which became due January 1, 1932, 1933, 1934, apportioned to any one of said lots, said lot shall be discharged of any lien arising 'out of or by reason of default in the payment of that particular instalment; that upon payment of that portion of any instalment, 7 to 10, inclusive, payable January 1, 1935, 1936,1937, and 1938 as apportioned by the decree, such lot shall be discharged from the assessment. The decree further orders: “That the defendant, City of Rockford, shall, upon the entry of this decree, authorize and direct any and all officers of the City of Rockford and officers of the County of Winnebago and State of Illinois having to do with the assessment of said premises and having to do with the collection of said assessments for the City of Rockford to make such change or changes upon their record or records as necessary to give effect to the terms of this decree. ’ ’ The city of Rockford has appealed from the decree.

It is not contended that the apportionment is not just and equitable among the six lots or that the lots would sell at tax sale for less than the parcel of land assessed. The decree finds that each of the six lots is benefited by the construction of the sewer to the amount designated. The city does not contend otherwise.

It is the contention of counsel for the city that Ill. State Bar Stats. 1935, eh. 120, If 371 (section 371, chapter 120, Smith-Hurd Rev. St. [1935]) provides an exclusive statutory method of apportioning the assessment to the lots as platted when the parcel assessed, was at the time the assessment was made, a part of the unplatted, or undivided tract of land described in the assessment roll; that the petitioners must follow the statutory procedure and a court of equity is without jurisdiction, in the first instance, to apportion the assessment to the lots as platted. The city also calls attention to the proviso of the above section.

It is provided by section 371, supra, as follows: That in all cases where any special assessment, payable in instalments, has been, or hereafter shall be made by any corporate authority, for supplying water, or other corporate purpose, and the owner or owners of any block or parcel of land so assessed, or some of them shall desire to subdivide the same, and to apportion such assessment and the several instalments thereof in such manner that each parcel of such subdivision shall bear its just and equitable proportion thereof, the same may be done in the following manner, to wit: The owner or owners of such lot, block or parcel of land shall present to such corporate authority a petition, setting forth: 1. The descriptive character of assessment and the date of the confirmation of the same. 2. The names of the owners. 3. A description of the land proposed to be subdivided, together with the amount of each instalment thereon, the year or years for which the same are due. 4. A plat showing the proposed subdivision. 5. The proposed apportionment of the amount of each instalment on each lot or parcel according to such proposed subdivision.

The section further provides that the petition shall be acknowledged and if the corporate authority is satisfied it shall be approved, and the assessment as apportioned shall stand in place of the original assessment.

The proviso is as follows: “Provided, this act shall not apply to any lot, block or parcel of land on which there shall remain due and unpaid any installment.”

The application of the rule that equity jurisdiction cannot be invoked where there is an adequate remedy at law depends upon the circumstances of each case. The purpose of the statute, as appears from the proviso, is to protect purchasers of lots after a parcel of land assessed has been platted into lots; to secure uniformity and simplicity in taxation; and to encourage sale of real estate. The statute is remedial and relates to the collection of taxes and not to the reduction or abatement of taxes. It should be fairly and reasonably construed. Where the rights of third persons have intervened or become involved, the statute does not provide a remedy which is coextensive with that afforded by a court of equity. The petitioners do not propose to subdivide a block, lot or parcel of land; they do not have the right to compel Thomas to file a petition with the corporate authority of the city of Rockford in compliance with the statute, and without such a petition the city has no power to act in the premises. We are of the opinion that the statutory remedy, administrative in character, is not exclusive in the sense that it ousts the jurisdiction of a court of equity when the rights of third persons have intervened.

The decree of the circuit court of Winnebago county is affirmed.

Affirmed.


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    Joseph C. Atkinson, Administrator of the Estate of Christine McCune, Deceased, Appellant, v. Hunter Associates, Inc., and John Johnson, Appellees.
    Gen. No. 8,981.
    Opinion filed January 17, 1936.
    Clyde Smith, of Dixon, for appellant.
    Dixon, Devine, Bracken & Dixon, of Dixon, for appellees ; Robert L. Bracken and J. C. Ryan, of Dixon, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case was begun by the plaintiff by filing a complaint at law in the circuit court of Lee county, against Hunter Associates Inc., and John Johnson to recover for the death of the plaintiff’s intestate, Christine McCune. On the hearing before a jury the verdict was for the defendants. A motion for a new trial was interposed by the plaintiff which was overruled and a judgment rendered on the verdict of the jury in favor of the defendants.

The amended complaint consisted of three counts. The first count alleged that the Hunter Associates Inc., was conducting a retail coal business in the city of Dixon, Illinois, and that John Johnson was employed by them to drive their truck and deliver coal; that plaintiff’s intestate, Christine McCune, while in the exercise of due care and caution for her own safety, was walking on walk through the First Street viaduct on northern side under the tracks of the Illinois Central R. R. Company; that the defendant Johnson, while going in the same direction approaching from the east with his truck at an excessive rate of speed, and carelessly managing it, without any warning collided with her and killed her. The second count avers that the Hunter Associates, Inc., negligently employed Johnson knowing at the time he was a negligent and unsafe driver. The third count alleges that the viaduct was an extra hazardous place, and that Johnson wilfully and wantonly collided with Christine McCune and killed her.

The defendants filed their answer and denied that either of them was guilty of negligence, or that Christine McCune, just prior to and at the time she was killed, was in the exercise of due care and caution for her own safety, or that the Hunter Associates Inc., was guilty of negligence in hiring Johnson, or the wanton and wilful conduct of Johnson while driving the truck in question.

The appellant insists that the court erred in sustaining the motions of the defendant and in directing the jury to find for the defendants on the counts of the complaint which charged wilful and wanton conduct on the part of the defendants. The only witness to the accident was the defendant, John Johnson and one Ed Wicherts who at the time of the accident and also at the time of the trial was employed by John Johnson and was riding with him in the truck when the accident occurred which caused the death of the plaintiff intestate. Mr. Wicherts was the only witness called by the defendants. After Wicherts had testified where he lived, for whom he worked, the description of the street, the width and description of the truck, the abstract shows he further testified as follows: “As I approached the arch I saw someone walking along the sidewalk on the north side of the street, the side I was coming on. I saw her before I reached the arch, it was a lady. When I first saw her she was in the arch going in the arch on the sidewalk. Mr. Johnson drove into the arch about three feet south of the sidewalk. The lady had a heavy coat on with a collar on. The collar was up to about the top of her ears; as we drove into the arch the lady was about through. I own a car and drive it and have for about eight years. Mr. Johnson, as he drove through the arch, was going about twenty miles an hour, maybe not that fast. The front wheels of his truck did not strike the woman. As we approached her or passed her I seen the woman step off the sidewalk into the truck. The front wheels had got by her, the cab had almost got past. When the lady stepped off the sidewalk Mr. Johnson turned to the left, which would be to the south. He then stopped about three lengths of the truck, he stopped on the north side. After pulling to the left which would be to the south, then he pulled back to the right-hand side and then he stopped. ’ ’

Over the objection of the defendants the plaintiff introduced in evidence the testimony which had previously been given at coroner’s inquest by John Johnson, one of the defendants. The abstract shows said evidence to be as follows: “John Johnson being duly sworn, said, my residence is Dixon, Illinois. My occupation is coal hauler. Did not know deceased. When I first seen her she was starting through arch on First Street. She was going west on First Street and I was going same direction about 10:30 A. M. today. She was alone. I seen her walking along curb and thought she was going ahead on walk. About four or five feet she started across. I dodged over and passed. I saw her lying on walk after I passed arch. I stopped and man with me got out and went back. I did not see her when she was struck. She must have been hit by the side of the truck. I did not sound horn, as I was trying to turn out away from her. She was lying in the street when I saw her in rear vision mirror of my truck. I had met a truck about forty feet east of the arch. She was almost through the arch when struck. I was driving about twenty miles an hour. I did not notice her look around as she passed under arch. I traveled about sixty feet before I saw body and stopped. The body was about five or six feet from sidewalk in street. She was still living. She was taken in another car to hospital. I picked up her purse and went to the office and reported accident, and Mr. Hoffman went to the hospital. Truck weighs about two ton. I reported accident. Metal coal chute on truck slid off back end of truck when her body struck truck.

John W. Johnson.’-’

The admissibility of this evidence is not questioned in this court, and for that reason we do not decide whether the court erred in admitting it.

Johnson and Wichert were the only eyewitnesses to the accident and with the exception of some inferences and conclusions drawn from other testimony, their evidence is uncontradicted. As the evidence now stands it is not disputed that Mrs. MeCune was walking on the walk under the viaduct with her coat collar turned up about her ears, and as the truck approached she deliberately stepped off the walk into the side of the truck and some part of the truck struck her and killed her. From a review of the entire evidence we do not think that it shows that the driver of the truck was guilty of any wilful and wanton conduct which caused the injury to the plaintiff intestate, and the court did not err in giving the instruction to the jury to disregard the second and third counts of the plaintiff’s petition.

For the reason above stated it is not necessary to pass upon the refusal of the court to give plaintiff’s instruction Nos. 7 and 12, as they were based on the second and third counts of said petition.

Plaintiff’s instruction No. 8, which was refused by the court, is as follows: “It is the law that upon approaching á person upon a street, the operator of any motor vehicle shall give reasonable warning of his approach and to use every reasonable precaution to avoid injury to said persons, and if necessary, to stop his motor vehicle until he can safely proceed.” No doubt, under certain circumstances this instruction may be applicable. The declaration in this case charges and the evidence shows that Christine McCune just before the accident occurred was walking on the walk which was four feet wide and several inches higher than the paving. The blueprint introduced in evidence discloses that this walk was a continuation of the sidewalk on either side of the viaduct. The law does not require that the driver of a motor vehicle give warning of his approach on either passing or approaching a pedestrian walking on the sidewalk, but only applies to a person walking on a street or road that is used for vehicle traffic. The court did not err in refusing to give plaintiff’s instruction number eight.

We find no reversible error in the case and the judgment of the circuit court of Lee county is hereby affirmed.

Affirmed.


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    Scott Ford, Appellee, v. The Mutual Life Insurance Company of New York, Appellant.
    Gen. No. 8,996.
    Opinion filed January 17, 1936.
    Frederick L. Allen, Winston, Strawn & Shaw, of Chicago, and Miller, Elliott & Westervblt, of Peoria, for appellant; George T. Evans, of Chicago, and Eugene R. Johnson, of Peoria, of counsel.
    R. D. Robinson, of Galesburg, for appellee; Phillip Benjamin Robinson, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

In an action of assumpsit the plaintiff secured a verdict and judgment against the defendant for $2,149.33 which the evidence shows was the cash surrender value of a policy of insurance issued by the defendant on the life of the plaintiff, in which the plaintiff’s wife is named the beneficiary. The declaration of one count is based on the surrender clause of the policy. As one of its defenses, the defendant interposed the plea of the statute of limitations. The other pleas of the defendant raise the issue as to whether the plaintiff had the legal right to surrender the policy and collect its cash surrender value without the consent of the beneficiary. It is conceded that the beneficiary has not consented to the surrender of the policy to the defendant. If the plaintiff did not have the right to surrender the policy and collect the cash surrender value, without the consent of the beneficiary, no right of action has ever accrued in favor of the plaintiff for the surrender value of the policy. If this court holds that the statute of limitations has run against the action of the plaintiff, it must have necessarily decided that his right of action accrued without the consent of the beneficiary to so surrender the policy. Whether the statute of limitations is applicable depends in any event upon a determination of the question presented by the pleas going to the merits of the plaintiff’s claim. This was a question of law, dependent upon the construction of the policy, which was presented to the trial court by appropriate motions at the close of all the evidence.

The application for the policy was signed by the plaintiff on August 24, 1896, at Galesburg, Illinois, where the plaintiff lived. The policy is dated September 3, 1896, and it was delivered by the defendant to the plaintiff at Galesburg. The defendant is incorporated under the laws of the State of New York where applications for life insurance policies are passed upon and issued by the defendant. The application for the policy contains the following provision: “This application made to the Mutual Life Insurance Company of New York is the basis and a part of a proposed Contract of Insurance, subject to the Charter of the Company and the laws of the State of New York.” By this stipulation, the proposed contract of insurance became consummated and completed upon the issuance of the policy, and the plaintiff: and the defendant mutually agreed that the contract should be a New York contract and construed according to the laws of that State. Subject to limitations hereafter stated, the statutory provisions of the State of New York and the decisions of the highest court of that State as to the construction of such a contract and of the statutes of New York must therefore be accepted as conclusive upon the parties. Banholzer v. New York Life Ins. Co., 178 U. S. 402, 44 L. Ed. 1124, and Hayward v. Sencenbaugh, 141 Ill. App. 395. The above stipulation is subject to limitations or conditions among which may be mentioned, that the laws of the State of New York must give way if they are in conflict with express and valid terms of the policy; further, the stipulation does not avoid statutory provisions of the State of Illinois, governing life insurance contracts, enacted for the protection of its citizens. (Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 48 L. Ed. 788; Albro v. Manhattan L. Ins. Co., 119 Fed. 629, certiorari denied 194 U. S. 633; State Life Ins. Co. v. Westcott, 166 Ala. 192, 52 So. 344; Mutual Life Ins. Co. v. Mullan, 107 Md. 457, 69 Atl. 385; Cravens v. New York Life Ins. Co., 178 U. S. 389, 44 L. Ed. 1116, affirming 148 Mo. 583, 50 S. W. 519, 71 Am. St. Rep. 628.)

The policy on its face recites as follows: Annual ■ Premium for 20 years, $71.60. In consideration on the application for this policy, which is hereby made a part of this contract, The Mutual Life Insurance Company of New York promises to pay at its Home Office in the City of New York, unto Caroline Ford wife of Scott Ford of Galesburg in the County of Knox, State of Illinois, her executors, administrators or assigns, Two Thousand Dollars, upon acceptance of satisfactory proofs at its Home Office of the death of the said Scott Ford during the continuance of this policy, upon the following condition; and subject to the provisions, requirements and benefits stated on the back of this policy, which are hereby referred to and made a part hereof.” The condition mentioned is that, “The annual premium of Seventy-one Dollars and Sixty Cents, shall be paid in advance on the delivery of this policy, and thereafter to the Company, at its Home Office in the City of New York, on the Third day of September in every year during the continuance of this contract, until premiums for Twenty full years shall have been duly paid to said Company.”

The benefits referred to on the face of the policy and stated on the back thereof, which are material for consideration, are as follows: “Surrender — This policy may be surrendered to the Company at the end of the first period of twenty years, and the full reserve computed by the American Table of Mortality, and four per cent interest, and the surplus as defined above, will be paid therefor in cash.” As before stated, the full reserve of the policy computed by the American Table of Mortality, and four per cent interest, and the surplus as defined by the policy, is the amount of the verdict, $2,149.33.

Premiums called for by the policy for 20 years after the date it was issued have been duly paid by the plaintiff to the defendant. The plaintiff has had possession of the policy from the time it was issued to him by the defendant. The contract of insurance does not contain any provisions either permitting or prohibiting the plaintiff from changing the beneficiary named in the policy, or surrendering the policy, either with or without the consent of the beneficiary. It is silent on those subjects. No statutory provision of the State of New York was introduced in evidence which permitted the insured in a life insurance policy to change the beneficiary thereof without the consent of the beneficiary, or to surrender the policy without the consent of the beneficiary. There are no statutory provisions in this State either permitting, or prohibiting, the insured of a life insurance policy to change the beneficiary thereof, or surrender the policy, without the consent of the beneficiary.

The evidence shows that on June 7, 1924, the beneficiary of the policy, Caroline Ford, assigned all her right, title and interest in the policy to “ Caroline Ford, wife of insured, if living, if not, to Eloise Ford, birth November 12, 1897, and Pauline Ford, birth May 8, 1902 daughters of Caroline Ford, or the survivor, or the estate of the last survivor.” The legality of the assignment is not involved in this case. The beneficiary and her two said daughters are living and none of them has consented to a change of beneficiary or surrender of the policy. They are not parties to this action, and do not reside in this State.

The beneficiary, the wife of the insured, had a vested right in the policy when the contract of insurance took effect. There are no terms or provisions of the policy inconsistent with this rule of law. Whitehead v. New York Life Ins. Co., 102 N. Y. 143, 6 N. E. 267; Glanz v. Gloeckler, 104 Ill. 573; Mutual Life Ins. Co. v. Allen, 212 Ill. 125; Garner v. Germania Life Ins. Co., 110 N. Y. 266, 18 N. E. 130, 1 L. R. A. 256, 37 C. J. 577; Couch’s Cyc. of Ins. Law 821. Since the beneficiary had a vested interest in the policy, the plaintiff did not have the right to surrender the policy and collect its surrender- value, although the policy was in the possession of the plaintiff and he had paid the premiums thereon. Fuchs v. Mutual Life Ins. Co. of New York, 164 N. Y. S. 105; New York Life Ins. Co. v. Ireland (Tex.), 17 S. W. 617, 14 L. R. A. 278; Joyce on Insurance (1897) Vol. 11, sec. 1651; Condon v. New York Ins. Co., 183 Iowa 658, 166 N. W. 452, 19 L. R. A. 649, 654.

The motion of the defendant for a directed verdict made at the close of all the evidence in the case should have been sustained by the trial court.

The judgment of the circuit court is reversed and judgment rendered in this court for the defendant.

Reversed and judgment entered here.


text:
    Ella M. Stout, Administratrix of the Estate of Henry W. Stout, Deceased, Appellant, v. Robert Skinner, Appellee.
    Gen. No. 9,000.

      Opinion filed January 17, 1936.
    Smith & Menzimer, of Bockford, for appellant; Lisle W. Menzimer, of counsel.
    Knight & Lupton and J. E. Goembel, all of Bock-ford, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Ella M. Stout as administratrix of the estate of Henry W. Stout, deceased, filed a complaint at law in the circuit court of Winnebago county, against Bohert Skinner, to recover damages for the alleged and wrongful death of Henry W. Stout who was the husband of the plaintiff.

The declaration consists of four counts. The first count charges the defendant with the careless and negligent operation of an automobile because of which the deceased was struck by said automobile and died as a result of the injuries so received. The second count is similar to the first, and differs only in that it alleges the operation of the automobile by the defendant, at an excessive rate of speed. Both of these counts aver that the deceased at the time of the accident was in the exercise of ordinary care for his own safety. The third count charges wilful, wanton and reckless conduct on the part of the defendant in the operation of the automobile. The fourth count charges that the wilful and wanton conduct of the defendant consisted of driving the automobile at an excessive rate of speed. The defendant filed an answer denying any negligence or that he was guilty of wilful and wanton conduct.

At the close of the plaintiff’s case the defendant entered a motion that the court instruct the jury to find the defendant not guilty and submitted and the court gave an instruction to that effect. The jury found for the defendant as instructed by the court and upon this verdict the court entered a judgment. A motion for a new trial and for arrest of judgment was overruled and the case is brought to this court on appeal.

The evidence tends to show that on April 6, 1934, Henry W. Stout was employed at the Atwood Vacuum Machine Company at Rockford, Illinois. Shortly after midnight and soon after he had finished his work he went to a tavern located about one and one-half blocks south of the place of his employment, on North Main street in Rockford, Illinois. He was there a. short time, then went outside but very soon returned. Three of his fellow workmen were also at the tavern and he told them that he could not start his car. He stated to them that if they were ready to go home he would take them if they would help him start his car, which was parked outside. The four men went outside and attempted to start the car. The battery was down and they were unsuccessful in getting it started. They decided to push it south on North Main street to a garage six or seven blocks away. Henry W. Stout, the deceased, was guiding the automobile and the other three men were pushing it from the rear. They proceeded along Main street in a southerly direction close to the right-hand curb of the street. After they had traveled some distance Henry W. Stout requested one of the other men to take the wheel, and guide the car stating that he would push awhile. While Stout was helping push the car and was walking at, or just back of the left-hand rear fender, another car driven by the defendant crashed into them from the rear. The force of the impact severed one of the legs of Mr. Stout just below the knee. He died a half hour later from loss of blood and shock. He also received other contusions and lacerations on his face. Mr. Ted. Latham who was pushing in the center at the rear also received injuries which resulted in his death.

There is evidence tending to show the condition which existed at the time of the collision, the width of the street, the height of the curb, whether there was a curve in the road and the number and type of the houses which were on either side of the street. It is not necessary to make a statement of these facts in this opinion.

In overruling the motion for a new trial, the court said as follows: “In the argument on the motion for new trial it is contended by counsel for plaintiff that the deceased had the same right to push his car along the right-hand side of the paved street that a driver of an automobile had. This may be true, but each case is governed by its own circumstances — there being at least, and I don’t know, but four in the party — the deceased being the owner of the car — knowing that there were no lights being shown, there was upon the deceased a greater demand for the exercise of ordinary care than would be under other circumstances. If he saw fit to assume the danger of someone coming behind, without any lights to give any warning, there were additional responsibilities thrown upon bim to meet the circumstances. My opinion is that he should have been on the other side of the pavement — the deceased should. The statute which provides that a pedestrian shall walk on the left side of the paved highway is evidently calculated to require that for the purpose of notice and he would be facing the oncoming automobile, and unless there was something unforeseen he would see it, and then the statute says it is his duty to step off and let the automobile pass. In this case the deceased was walking on the cement, along with others, pushing an automobile that had no lights upon it, on a dark night, about 2:00 o ’clock in the morning, and evidently was hit without his seeing the oncoming automobile or the oncoming automobile seeing him.

“Mr. Menzimer: The Court is of the opinion that he should have been pushing his automobile on the left side of the highway — that is, the deceased should have been?

“Court: Yes; I am. As I see it, the purpose of that statute, which is of recent enactment, evidently was so that the pedestrian would see. He would be facing the oncoming traffic and he would see. If there had been no dead automobile mixed up in this case I don’t think there would have been any question but what he should have been walking on the other side. Why does the pedestrian walk over there? Because the pedestrian moves so much slower than the automobile; therefore he must walk facing the traffic. The same reason would apply to a person walking and pushing an automobile. I think that is clear. Further than'that, there isn’t any direct evidence of any negligence on the part of the defendant. Whether or not he was going at a greater rate of speed than twenty miles an hour is not definitely shown. That argument has got to be from an inference drawn from the distance that the hit automobile ran. I don’t think I’ll change the ruling. Motion for new trial overruled.”

From reading the above statement it is clear that the learned trial judge assumed that Mr. Stout, while pushing his automobile southward on the right side of a paved highway, was a pedestrian, and that the statute required him to walk on the other side of the streét. It is our opinion that the trial court erred in this assumption and that Stout at the time he was pushing the car was not a pedestrian as contemplated in the statute requiring pedestrians to walk on the left side of the street, approaching the oncoming traffic. If Mr. Stout and his friends had attempted to push this car in a southerly direction on the left-hand side of the street and someone approaching from the south had collided with their car it would be a serious question as to whether they would not be guilty of criminal negligence. Supposing a farmer living on the hard road should drive a team of horses from his field towards his house on the road after he had finished his work. It would be conceded by everyone that in driving his team on the hard road that he should keep on the right-hand side the same as other traffic. Instead of being a pedestrian he would be a driver, the same as though he was driving an automobile or a wagon and the statute would not require him to walk over on the left-hand side of the road. In the case of Dickerson v. Mutual Grocery Co., 100 N. J. L. 118, 124 Atl. 785, the court’s statement of the case is as follows: “Parker, J. (1) Plaintiff, while driving his own automobile, ran out of gasoline, and, having passed a gasoline station, decided to push the car back to it. So he gave the wheel to his wife, got out of the car and began to push it. The car had made the turn to the rear, and plaintiff was slowly pushing it toward the source of supply, when a servant of defendant, driving its car, came up behind, failed to see plaintiff’s car until too late to avoid it, made an unsuccessful effort to swerve out to the left, and caught plaintiff between the front of defendant’s car and the left rear mudguard of plaintiff’s car. The suit was for personal injury, as the collision had caused a comminuted fracture of one leg resulting in a shortening of it and other physical injury. Plaintiff had a verdict and judgment for $5,000. It is claimed for appellant that the trial court should have nonsuited or directed a verdict for defendant. ’ ’

The court after stating the facts, in discussing the law applicable thereto, use this language: “But the credibility of all this was for the jury, and there.remained for solution the indubitable situation that plaintiff, on foot, pushing a dead car, had his leg crushed against it by a following car going at a speed as testified of seven miles an hour. The view taken by our courts of this class of cases is well illustrated by three very recent decisions. . . . We see nothing in the present case to take it out of the usual rule that the finding of the facts and of the inferences of negligence to be drawn therefrom is for the jury. ’ ’

It is our opinion that the trial court erred in directing the jury to find the defendant not guilty. It was a question of fact for the jury to decide whether plaintiff’s intestate was guilty of such contributory negligence as would bar the plaintiff’s action. It was also a question of fact for the jury to decide whether the defendant was guilty of such wanton and wilful conduct as to cause the injury which resulted in the plaintiff’s intestate’s death, and should therefore be made to respond in damages for such conduct.

The judgment of the circuit court of Winnebago county is hereby reversed and the case remanded.

Reversed and remanded.


text:
    State Bank of St. Charles, Appellee, v. James H. Burr, Appellant.
    Gen. No. 9,004.
    Opinion filed January 17, 1936.
    James H. Burr, pro se; Francis M. Lowes, of Chicago, of counsel.
    Hempstead & Green, of St. Charles, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The State Bank of St. Charles started a forcible entry and detainer suit in the justice of the peace court in Kane county, against the defendant James H. Burr for the possession of certain property in said county. It was tried before a justice who held in favor of the plaintiff. The defendant appealed the case to the circuit court of Kane county. On motion of the plaintiff the appeal was dismissed and the case brought ' to this court for review. We held that the appeal was properly brought and we reversed and remanded the case. The mandate of the Appellate Court was filed in the circuit court and by agreement it was tried before the court without a jury.

The plaintiff introduced in evidence a lease for the premises signed by the defendant, a written demand for payment of rent claimed under the lease which was then due and unpaid, and the complaint of forcible detainer filed in the justice peace court. He also introduced evidence tending to show that there was rent due and that a demand had been made for the same on several different occasions which had not been paid. The defendant introduced in evidence a quitclaim deed signed by himself and wife, conveying the premises in question to the plaintiff. This deed was dated September 14, and acknowledged on September 15, 1931. He also introduced in evidence an option to repurchase the land in question upon payment of certain sums of money. This option was also dated September 15,1931, and filed for record in the recorder’s office of the county of Kane, on the same date.

The plaintiff’s Exhibit 3 is a statement of account rendered to the defendant by the plaintiff for the premises in question. Defendant’s Exhibit 4, is a notice from the defendant Burr to the plaintiff denying that the lease in question was a good and valid one, but was a mortgage, and that the plaintiff had no right to the possession of the property. There was other evidence introduced by each of the parties which will not be discussed at this time. The court found the issues in favor of the plaintiff and entered judgment for its possession of the property. From this judgment the defendant has perfected an appeal to this court.

It is the contention of the appellee that the lease in question is a valid and existing lease; that the relation ' of landlord and tenant existed between the parties; that the proof shows that the defendant had not paid the stipulated rent, therefore under the Forcible Entry and Detainer Act they could maintain this action. The appellants insist that the lease, deed and option to repurchase the property should all he construed together, and when this is done it shows that the lease and deed were not in reality a lease and deed but a mortgage, and the only way that the appellee could gain possession of the property would be for the defendant to default in the payment of the mortgage indebtedness, or some part thereof, followed by a suit in a court of record to foreclose the mortgage. It is conceded by the parties to this litigation that if this instrument is to be construed as a valid lease, and the evidence shows that there is unpaid rent due on the premises, and that a proper demand has been made for the same, then the plaintiff can maintain this action. The only difference between the parties appears to be the construction to be given these instruments.

In the case of Keithley v. Wood, 151 Ill. 566, the Supreme Court of this State had the same question before them. After reviewing many cases, they announced two rules that they have followed in the later decisions. The first is as follows: “Where there is a conveyance by deed and a defeasance in a collateral paper, or a contract for a resale, and the evidence leaves it in doubt whether the transaction was intended as a conditional sale or a mortgage, it will, as a general rule, be treated as a mortgage.”

In the latter part of the opinion the court uses this language: “The Supreme Court of Virginia, in Snavely v. Pickle, 29 Gratt. 27, in discussing the question, said: ‘There is a well defined distinction between a mortgage and a conditional sale, but it is often very difficult to determine whether a particular transaction amounts to one or the other; and, after all, each case must be determined on its own circumstances, and in doubtful cases the courts incline to construe the transaction to be a mortgage rather than a conditional sale. ’

“In Pomeroy’s Equity Jurisprudence, sec. 1194, the author lays down the rule, where there is a conveyance with an agreement to repurchase, the two papers taken together may be what on their face they purport to be — a mere sale with a contract to repurchase — or they may constitute a mortgage.

“In sec. 1195 it is said: ‘A general criterion, however, has been established by an overwhelming consensus of authorities, which furnishes a sufficient test in the great majority of cases; and whenever the application of this test still leaves a doubt, the American courts, from obvious motives of policy, have generally leaned in favor of the mortgage. This criterion is the continued existence of a debt or liability between the parties, so that the conveyance is in reality intended as a security for the debt, or indemnity against the liability. If there is an indebtedness or liability between the parties, either a debt existing prior to the conveyance, or a debt arising from a loan made at the time of the conveyance, or from any other cause, and this debt is still left subsisting, not being discharged or satisfied by the conveyance, but the grantor is regarded as still owing, and bound to pay it at some future time, so that the payment stipulated for in the agreement to reconvey is in reality the payment of this existing debt, then the whole transaction amounts to a mortgage, whatever language the parties may have ■used, and whatever stipulations they may have inserted in the instruments. ’ ’ ’ The same quotation may be found in the case of Illinois Trust Co. v. Bibo, 328 Ill. 252.

An examination of the option, introduced in evidence, discloses that the consideration to be paid for the re-conveyance of the land from the defendant to the plaintiff is a mortgage indebtedness which is payable from the defendant to the bank and secured by two trust deeds. The officer of the bank who was called by the plaintiff to establish its ease testified that they did not have the notes but they had been delivered he thought to the attorney. He does not say that the trust deeds or notes had been canceled or delivered to the defendant. The defendant testified positively that he never had received the notes nor the trust deed.

Part of the option is as follows: “That the said party of the second part, or. his assigns, shall pay to the party of the first part upon the exercise of this option, First: All monies which may then be due to the party of the first part upon five notes executed by the said party of the second part and his wife, aggregating Eighteen Thousand Dollars ($18,000.00) dated May 5th, 1927, and secured by trust deed to John W. Chaffee, Trustee, of the same date, and recorded May 18th, 1927, in Recorder’s office of Kane County, Illinois, in Book 844, page 453. Second: All monies which may then be due to the first party upon the note of said party of the second part and his said wife, dated January 30th, 1929, and secured by trust deed to J. W. Chaffee, Trustee, recorded in the Recorder’s office of said county January 31, 1929, in Book 899, Page 113.”

It seems to us that there can be no question from the wording of this option, but that at the time it was executed the plaintiff held possession of these notes and trust deed, and intended to hold them until they were paid, and that the indebtedness that originally existed from the appellant to the appellee had not been canceled.

There is some difference in the evidence of the officer of the bank and the defendant as to whether these papers were all executed at the same time. The papers bear the same date. It is true that the deed on its face shows that it was signed on September 14, and was acknowledged on September 15, the same day that the lease was executed. It is our conclusion that the lease, the deed and the option should all be construed together to ascertain the intention of the parties at the time these instruments were executed, and it is our opinion, that construing them together, this lease should be held to be a mortgage and the action of forcible entry and detainer cannot be maintained.

The judgment of the circuit court of Kane county is reversed.

Reversed.