text:
    Lucia T. Waller, Appellant, v. Mildred Loring Wilson et al., Appellees. Mildred Loring Wilson, Appellee, v. Lucia T. Waller, Appellant, and Others, Appellees.
    Gen. No. 37,850.

      Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    William H. Dillon, of Chicago, for appellant.
    McCulloch, McCulloch & McLaren, of Chicago, for appellee Mildred Loring Wilson; Lewis C. Murtaugh, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

Lucia T. Waller, plaintiff, appeals from a decree entered by the court, in which it dismissed plaintiff’s bill for want of equity and ordered the Continental Illinois National Bank and Trust Company of Chicago, as trustee, to deliver certain securities to the defendant, Mildred Loring Wilson and to remove as a cloud on her title the lease and other instruments. The plaintiff appeals from said decree except such parts thereof as declare said lease terminated, the subject of the controversy, and to remove the clouds on the title of the defendant and establish and confirm title to said premises in the defendant, Mildred Loring Wilson.

The action was based upon the bill of complaint filed against Mildred Loring Wilson and others as defendants, to enjoin the Continental Illinois National Bank and Trust Company of Chicago, as trustee, from turning over to the defendant certain securities which had been deposited with the trustee under the provisions of a long term lease, which was subsequently amended, and which lease had been terminated by the defendant, Mildred Loring Wilson, the owner of the demised premises.

Answers were filed by the defendant and by the trustee and the bill was taken as confessed against certain other named defendants. Subsequently the defendant, Mildred Loring Wilson, filed her cross-bill, making the plaintiff and other parties defendants. By said cross-bill she prayed that the securities that were deposited with the trustee be delivered to her and that the lease and certain other instruments referred to in said cross-bill be removed as clouds on her title to said premises. Answers were filed to the cross-bill by the plaintiff and certain other cross defendants, and the cross-bill was taken as confessed against such defendants as defaulted in filing an answer.

The premises in question were situated at the northeast corner of Clark street and Haddock Place, about midway between Lake street and Wacker Drive, in the City of Chicago. The property has a frontage on Clark street of 37% feet and a depth on Haddock Place of 40 feet. On March 1, 1909, the trustees under a certain deed of trust, being the then owners of said premises, executed a lease demising said premises for a term of 99 years.

The lease provided for a rental of $3,000 a year, payable in quarterly instalments of $750 each on March 1st, June 1st, September 1st and December 1st of each year. It contained provisions requiring the lessee to pay all taxes, special assessments, water rates and other charges, and by the fourth article of the lease the lessee was required to keep upon the demised premises as security for the payment of the rent and the performance of the other covenants of the lease,, either the building standing thereon at the time of the execution of the lease, or in place thereof a good and substantial first-class fire-proof or semi-fireproof building of modern design and of the latest and most approved construction, suitable to the location, of at least four stories in height and to cost and be worth not less than $20,000. Under a paragraph of the eighth article of the lease, it is provided that no building situated on the demised premises should be removed or torn down until the lessee had furnished to the lessor a good and sufficient bond Avith surety conditioned that the lessee Avould erect and complete a new building in accordance Avith the proAdsions of the lease. Article 12 of the lease provided that in the eAunt of default by the lessee in the performance of any of the covenants of the lease, the-lease might be terminated and provided the manner of such termination. The lease also provided that in case any building on the premises was damaged, it should be repaired or rebuilt by the lessee within one year from the date of such damage.

In April, 1927, William Waller, Jr., acquired the lessee’s interest under the lease, and on May 15, 1928, the then owners of the premises and William Waller, Jr., as lessee, entered into a supplemental agreement, which provided that the building then situated on the premises might be torn down and removed by the lessee at his cost and expense, and further provided that as security for the rents and performance of the covenants of the lease, the lessee on or prior to April 1, 1938, would commence the erection of a new building of the type specified in the lease, such building to be completed within two years after construction was commenced. There was a further provision in the contract that upon delivery of the supplemental agreement, the lessee would deposit with the Illinois Merchants Trust Company, now Continental Illinois National Bank and Trust Co., as trustee, securities having a market value of not less than $25,000, and would deposit with the trustee on April 1, 1933, additional securities having a market value in the amount of $5,000, and also would deposit a like amount on the first day of April of each year thereafter until and including April 1, 1937, unless prior to any such date the lessee should have commenced work upon a new building.

The securities were to be held by the trustee under the terms of the contract for the following purpose:

“In the event of the termination of said lease in accordance with the terms thereof, on account of default by the lessee, while any money or securities shall remain on deposit with the Trustee, the Trustee shall pay, turn over and assign the same to the lessors as and for the liquidated damages accruing to the lessors on account of such default, and such money or securities shall thereupon become the property of the lessors free and clear of any interest therein on the part of the lessee.”

The contract also provides that the income from the securities was to be paid to the lessee, provided he was not in default in respect to any of the provisions of the lease or the supplemental agreement, and further, that upon full completion of a new building and full payment therefor, the securities were to be paid to the lessee provided he was not then in default in respect to any of the provisions of the lease or the supplemental agreement.

The then lessee, William Waller, Jr. deposited the securities with the trustee, in accordance with the provisions of said supplemental agreement, which securities are claimed by the plaintiff as her property, and to have been merely loaned by her to her husband, William Waller, Jr. for the purpose of depositing the same under the terms of the agreement herein mentioned. Thereafter, in November, 1928, he destroyed and removed the building then upon the premises. The building was built in 1877, and at the time was producing no income and was of no particular , value. The premises without any improvement thereon produce an annual income of $2,640.

It further appears from the record that the lessee never did commence the erection of the new building provided for by the lease and the supplemental agreement. It also appears that the supplemental agreement was prepared by the attorney for William Waller, Jr. and the negotiations which finally led to the agreement were had at the request of William Waller, Jr., and after agreement of the parties it was executed, and the securities were deposited as we have already indicated in- this opinion.

It further appears that the lessee failed to pay the rent due on December 1, 1932, and also the instalment of rent due on March 1, 1933, and was in default in payment of the 1930 general tax, which amounted to $2,235.66, upon which penalties were accumulating, and the taxes for 1932 and 1933, and that he failed to deposit with the trustee on April 1,1933, additional securities having a market value of $5,000,

As a result of the defaults, the defendant, Mildred Loring Wilson, who was at the time the owner of the fee simple title and the interest of the lessor in said premises, terminated said lease on May 1,1933, and on May 26, 1933, recovered a judgment for possession against the lessee and his subtenant, and subsequent thereto this defendant has been in possession of said premises.

It was agreed by the parties to this litigation that at the time of the termination of the lease there was and still is on deposit with the trustee, subject to the terms of said agreement, securities evidencing a par value of $25,500, and in cash an amount in excess of $2,100, representing principal realized from the sale of certain securities so deposited and interest collected thereon, and that the market value of said securities, exclusive of said cash, on May 9, 1934, was $22,950.

It was further agreed by the parties that the securities so deposited with the trustee at the time of the termination of said lease, including the securities converted into cash, were loaned by the plaintiff to William Waller, Jr., for the purpose of depositing the same under said agreement, and that said securities were and now are the property of the plaintiff subject to the terms of said agreement and to all rights which said defendant Mildred Loring Wilson, may have therein by virtue of said agreement to the same extent as if said securities were owned by William Waller, Jr., at the time of the deposit of the same and he had made no assignment thereof; and that the securities were negotiable instruments payable to bearer, and that at the time of the deposit thereof, neither the lessors nor the depositary trustee had any notice or knowledge that said securities were not the absolute property of William Waller, Jr. As a matter of fact, it appears that on December 5, 1932, after William Waller, Jr. had made default in the payments required under the terms of the lease and the supplemental agreement, he wrote the following letter to the lessors:

“I am sincerely disappointed at having to write the following letter. I know that this will be a blow to you personally and to your client Mrs. Wilson, but quite frankly, there is no way out. ... I might just as well be honest and state that while this (an opinion about taxes) is my opinion, it is not the cause of my advising you that it is physically impossible for me to pay the rent called for in the lease.”

And on the same day, he made this written statement :

“As stated in my other letter I will be very pleased to cooperate with the owner to facilitate the proper management of this property. . . .

“I really believe that some adjustment on these taxes will eventually be accomplished. As long as I am unable to continue my obligation on this lease I do not feel I should attempt to interfere with your own judgment in the matter. However I should be pleased to be advised as to what disposition you wish to make of this tax situation. ...”

The plaintiff contends that the agreement of May 15, 1928, provides for a penalty and not for liquidated damages, and suggests that by the agreement of May 15, 1928, it is expressly provided that the securities were deposited for the faithful performance of every provision of the lease by the lessee — the provisions wherein the amounts were fixed or easy of ascertainment as well as those wherein the amounts were indefinite or difficult of ascertainment. This provision of the agreement is for the payment of a penalty rather than for the payment of liquidated damages.

It is also necessary to consider in connection with the suggestion made by the plaintiff that when the provisions for a penalty are unjust, unconscionable, unreasonable or oppressive, and the amount of the penalty is out of proportion to the probable damages, the courts will not enforce them, and the circumstances under which the parties were induced to enter into this agreement will be of aid to the court in construing the provision to which complaint is made.

The language of the contract of May 15,1928, is clear that upon the termination of the lease by default of Mr. Waller, the securities on deposit shall be used to liquidate the damages sustained by the lessor, and such securities by such default shall become the property of the defendant, the lessor in this case. The parties to the contract entered into its terms, and it was prepared at the instance of the lessee Waller by his attorney. By the terms of the agreement the lessee was privileged to remove the structure upon the land, which while in his possession was not kept in repair and the lessee was relieved of the expense of rebuilding and repairing the structure, due to a change in the grade of the street, which raised the sidewalk level about three feet. This change in the grade was made necessary by the Wacker Drive improvement. By the terms of the supplemental contract the liability was limited to $25,000. In the instant case, failure to pay rent and taxes due upon the premises constituted default. The lessor, however, is now without a building and by reason of the failure of the lessee, Mr. Waller, to construct the type of building provided for by the supplemental agreement, has suffered damages. Failure to construct the new building is an item of damages for which the lessor is protected by the provision in the supplemental contract. It is difficult to calculate the amount of the damages suffered by the lessor by reason of lessee’s default. That he has suffered is not questioned, nor that the lessor is deprived of an improvement and is now in possession of vacant property.

The Supreme Court in the case of Weiss v. United States Fidelity & Guaranty Co., 300 Ill. 11, makes a pertinent statement upon the question of damages in saying:

“The question presented in this case for our determination is whether or not the contract by its terms, unaided by any extrinsic evidence, is to be held to provide liquidated damages or a penalty for the delay occasioned in completing the contract on time. Where the damages cannot be calculated in such a contract by market value nor by any precise pecuniary standard, or where, from the peculiar circumstances which the contract contemplates, there must be other uncertainties affecting the practical ascertainment of the amount of actual loss, the law favors any fair adjustment of damages by stipulation. If the contract does not afford any data from which the actual damages can be calculated this circumstance affords a reason for regarding the sum designated in it as liquidated damages.”

This court will now consider whether the lessee’s liability for a default in failing to comply with the terms of his contract is relieved by the termination of the lease and failure to pay rent. There can be no question that parties to a lease may agree that upon default by the lessee it will not relieve him from the payment of accruing sums provided for in the lease, notwithstanding the termination of the tenant’s possession by judgment for possession recovered by the landlord for default of the tenant. This question has been passed upon by the Supreme Court in the case of Central Investment Co. v. Melick, 267 Ill. 564, which said:

“The case of Grommes v. St. Paul Trust Co., 147 Ill. 634, is decisive of the second point raised. There was involved in that case a lease with practically the same provisions as those contained in the third clause of the lease here in question, and it was there said: ‘ There is nothing illegal or improper in an agreement that the obligation of the tenant to pay all the rent to the end of the term shall remain notwithstanding there has been a re-entry for default, and if the parties choose to make such an agreement we see no reason why it should not be held to be valid as against both the tenant and his sureties. ... It may not be strictly accurate or correct to call the money to be paid after re-entry rent, or to treat the lease as in force after a re-entry. But the parties have a right to fix the amount of the rent to accrue according to the terms of the lease as the amount of damages to be paid by the tenant in case of a breach of his covenants. It can make but little practical difference whether the sum agreed to be paid be called rent, or damages. It may be regarded as damages for the purposes of this suit. Hall v. Gould, 13 N. Y. 127; Underhill v. Collins, 132 id. 269.’ Whether, as the plaintiff in error contends, by bringing its action of forcible detainer under our statute the defendant in error elected to determine the lease is unimportant under the holding in that case, as the amounts accruing after the re-entry are more properly regarded as the damages agreed upon between the parties in case of a breach of the covenants of the lease.” See also Heims Brewing Co. v. Flannery, 137 Ill. 309.

In the instant case the parties agreed that the securities deposited by the lessee, Mr. Waller, should be assigned to the lessor in the event of the termination of the lease by the trustee for default of the lessee, in liquidation of the damages, and there is no legal obstacle to prevent an agreement being enforced.

As to the suggestion of the plaintiff that the lessee, Mr. Waller, by the supplemental agreement, a material part of the controversy, was not in default or obliged to commence the erection of a new building until April 1, 1938, and therefore no damages can be predicated upon this fact, the evident fact is that by the lessee’s default in payments and performance of the obligations incurred by the lease and the supplemental contract he, by legal procedure was dispossessed of the premises, and the plaintiff is not in a position to take advantage of this defense. Failure of the lessee to perform under the lease was not brought about by any act of the lessor, but solely because of lessee’s failure to perform when he agreed with the lessor that “in the event of, and after the termination of the lease on account of default by the lessee, the amount on deposit with the trustee, the trustee shall pay and turn over to the lessor for the liquidated damages accruing to the lessor on account of such default.

The plaintiff failed to meet this by any evidence which would justify the trial court in holding that the plaintiff in this action was entitled to the securities, and in this proceeding the plaintiff had not only the burden of proof to establish the facts alleged in her bill of complaint, but also to show that the contract provided for a penalty, and not for liquidated damages. This position is fully sustained by the case of Weiss v. United States Fidelity & Guaranty Co., 300 Ill. 11, and upon this question the court said:

“The burden of proof in such case is on the defendant to show that the contract provided for a penalty and not for liquidated damages, where there is nothing upon the face of the contract that requires the court to make the legal finding that the provision is for a penalty. Such a contract is prima facie evidence that the parties have stipulated and agreed on the actual amount of damages that ought to be recovered for a breach, and in the absence of evidence to the contrary the damages will be held to be liquidated damages.”

If the relief prayed for by the plaintiff were granted it would be a violation of the terms of the lease, as well as of the supplemental agreement. The parties having agreed, the court can do but one thing, and that is enforce the provision provided for in the lease and in the agreement of May 15, 1928.

The Supreme Court in the case of Heims Brewing Co. v. Flannery, 137 Ill. 309, which is pertinent upon the question now before this court, said:

“When all the provisions and circumstances of said contract are taken into consideration, there seems to be no reasonable doubt as to the intention of the parties that, the mere surrender of possession of the building leased, though made upon demand by the plaintiffs based upon a default in the payment of an installment of the rent, should not terminate said contract altogether, but only the defendant’s right to the possession of the building leased, thus leaving all the other provisions of the contract, as well as the defendant’s obligation to pay the stipulated consideration, in full force. The agreements on the part of the plaintiffs unaffected by the surrender, and which the defendant may still enforce constitute a substantial and material part of the consideration of the defendant’s covenant to pay the $3,000, and it is not for the defendant to insist that a forfeiture, by reason of its own default, of only its leasehold interest in said building, leaving all the other provisions of the contract valid and enforceable, shall be held to work, in its favor, a total rescission.”

The question of a lessee’s breach of contract providing for the making of alterations is commented upon in the case of Stogop Realty Co. v. National Surety Co., 207 N. Y. S. 785, 212 App. Div. 129, 154 N. E. 631, as follows:

“The lessee cannot avoid his contractual obligation to make alterations through breaching the contract. It is argued that the landlord should have sued for rent, and permitted the tenant to remain in possession and enjoyment of the premises, although no security for rent had been deposited. But the contention that the landlord could not dispossess the tenant for nonpayment of rent, without destroying the obligation to complete the alterations, is untenable. A judgment for rent would probably have been worthless. To require that the tenant be allowed to continue in possession without paying rent, unless he were to be relieved of his obligation to complete the alterations is not required by any rule of law. ’ ’

To the same effect is the case of In re Barton Co., 34 F. (2d) 517.

The trend of authorities upon this question seems to be that where the lessee made performance impossible because of a default, still damages may be recovered against him, notwithstanding the time for future performance is not at hand.

The admission of certain evidence is questioned by the plaintiff, and the contention is made that the court erred in admitting evidence regarding judgments against Mr. Waller and his liability on notes. Further, that the evidence admitted regarding the taxes for the years 1931, 1932 and 1933, was erroneous; and that letters written prior to the execution of the supplemental agreement were wholly immaterial upon the questions involved in this case.

Now, as to the evidence regarding judgments against the lessee and his liability on notes. It appears from the record that the plaintiff stipulated that there were certain unsatisfied judgments against William Waller, Jr., and that there were a number of trust deeds securing notes of his, most of which were given in part payment of the purchase price of real estate, and while admitting that such were the facts, the plaintiff suggested that they were immaterial to any issue before the court, and objected to their admission in evidence when offered.

Insolvency and liability to go on were relevant to the question of whether the lessee intended to or would perform, and this is certainly evident from the letters of Mr. Waller in the record showing Mr. Waller’s inability to perform, and his regret for the “blow” that he felt obliged to inflict upon Mrs. Wilson, and his desire to “assist” her, not only acknowledging that her contract was just and reasonable, hut also admitting his inability to pay.

The evidence on the taxes which had accrued and were due at the time of the institution of this proceeding, and for which Mr. Waller was liable, was competent not only for the purpose of showing the many defaults, but also for the purpose of indicating continued defaults in the payment of taxes until the entry of the decree in 1934. There was no error in the admissibility of facts tending to establish defaulted payments.

It is also contended that the admission of a number of letters marked Wilson Exhibits 10 to 37, was erroneous, and that the court erred in allowing same to appear in the record. In examining this record we find that the defendant Wilson did not offer these exhibits for the purpose of varying or altering any provision of the contract, hut for the purpose of showing that there was nothing oppressive or unreasonable about the contract of May 15, 1928, and that the amount of the deposit was not exorbitant or extravagantly large, and it would appear from these letters that Mr. Waller and his agents and attorneys suggested and proposed the contract and every item of the terms thereof and that the contract was written by Mr. Waller’s attorneys and changed in no particular by the lessor. The rule seems to be that the circumstances surrounding the making of a contract may he inquired into for the purpose of determining whether the contract was fairly made and reasonable by its terms, and entered into by the parties with full understanding of its provisions. '

Upon full consideration of the facts before us in this proceeding and the questions called to our attention, we are of, the opinion that the court did not err in dismissing plaintiff’s bill of complaint and in granting the relief prayed for by the defendant and cross plaintiff, Mildred Loring Wilson in her cross-bill.

For the reasons stated in this opinion, the decree is affirmed.

Decree affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. Kaspar American State Bank. Fred A. Gurdes, Appellee, v. Arthur Meyer, Receiver of Kaspar American State Bank, Appellant.
    Gen. No. 37,936.

      Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    McFarland, Morgan & McFarland and Lord, Lloyd & Bissell, all of Chicago, for appellant; A. C. Wetter-storm and Cordon R. Close, both of Chicago, of counsel.
    Hubbard, Baker & Rice, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

From the record it appears that the respondent as receiver of the Kaspar American State Bank, a corporation, appealed from an order which the court entered approving the master’s report, overruling the receiver’s exceptions thereto and allowing the intervening petitioner’s claim against Arthur Meyer, as receiver, and not personally, in the sum of $3,563.91, with legal interest thereon from October 18,1927 to July 12, 1932; that on December 12,1932, Fred A. Cardes, filed his intervening petition against the respondent. The petition alleges that thé intervening petitioner was the owner and payee of Berwyn City Warrant No. 38,054 for $3,563.91, that the intervening petitioner’s indorsement thereon as payee was forged, and that on October 18, 1927, the Kaspar American State Bank indorsed and cashed the warrant, and collected it from the City of Berwyn, and that thereby that bank converted the warrant, and the receiver of the bank, the respondent in this ease, is liable for the amount of the warrant with interest.

The petition of the intervening petitioner and the receiver’s answer thereto were referred to a master, who found in favor of the intervening petitioner, and on September 18, 1934, the court entered the order which was appealed from.

The first question presented to this court is that the receiver is not liable to the intervening petitioner for the conversion of the Berwyn City Warrant No. 38,054 for $3,563.91, or for the proceeds thereof, owing to the fact that the warrant was never delivered to the intervening petitioner, and therefore he did not own it.

The Supreme Court in the case of Independent Oil Men’s Ass’n v. Ft. Dearborn Nat. Bank, 311 Ill. 278, said:

“It seeks to recover (from the bank) the value of its property which came into the hands of plaintiff in error and for which plaintiff in error refuses to account. Defendant in error might have brought an action of trover against plaintiff in error for unlawful conversion of its property, hut it chose to waive the tort and to bring its action in assumpsit for money had and received for its use. That it had a right to do this is well established by the great weight of authority. Defendant in error ratifies the collection of the check for it, and by this act ratifies the assumed payment of the check. Both the drawer and the drawee of the check are released from paying it over again, because the payee, by ratifying the payment, is estopped from making a claim against either.”

This view of the law is held applicable to the facts in the instant case. There is no question but that the intervening petitioner’s name was forged by the indorsement appearing on the back of the Berwyn City warrant, and that by the filing of the petition the petitioner waived any further right of action as against the City of Berwyn, and by so doing ratified the assumed payment of the check, and the City of Berwyn was released from paying it over again because of the payee’s ratification of the payment. The intervener is, therefore, estopped from making a claim as against the City of Berwyn, and the question of the delivery of the check is not important.

The fact remains that the check did leave the possession of the City of Berwyn, and the intervening petitioner’s name was forged and the Kaspar State Bank received the amount due the intervening petitioner, and by that act converted the money to its own use.

The next contention made by the respondent is that the claim of the intervening petitioner is barred by the statute of limitations and by laches, and in support of this contention calls to our attention the case of White v. Meadowcroft, 91 Ill. App. 293. However, upon an examination of this authority it would seem that there is a distinction between cases at law and actions in chancery; that in a chancery action the receiver is regarded as a trustee for the parties in interest and that the statute will not run in favor of the trustee; that the action before us is a chancery proceeding for the purpose of winding up the affairs of the Kaspar State Bank, which had closed its doors and, upon a petition filed by the auditor of public accounts of the State of Illinois, the respondent was appointed as receiver for the bank.

In an interesting opinion of this court in the case of Fox v. Produce Cold Storage Exchange, 192 Ill. App. 301, the court quoted from Dunne v. Portland St. Ry. Co., 40 Ore. 295, as follows:

“ ‘. . . Every creditor has, after the filing of a bill, an inchoate interest in the suit to the extent of its being considered as a demand, and to prevent his being shut out because the plaintiff has not obtained a decree within the six years.’ . . . It is unimportant, therefore, so far as the statute of limitations is concerned, at what time the intervening creditors become parties, if the original suit was commenced in time; for, as each creditor appeared and proved his claim, he had a right, as said in Richmond v. Irons, supra, ‘to be considered as a party complainant from the beginning.’ ”

So it appears that the rights of the intervening petitioner were fixed as of the date of the filing of the bill to wind up the affairs of the bank, against which this claim is made, and that at that time the statute of limitations was not a defense and did not bar the action of the intervening petitioner.

Upon the question of whether the court erred in allowing the intervener interest at the rate of five per cent per annum from the 18th day of October, 1927, the date the bank collected the proceeds of the check, to the 12th day of July, 1932, the date the bill was filed to liquidate the bank, the case of Gillet v. Chicago Title & Trust Company, 230 Ill. 373, is cited as sustaining the order entered by the trial court that the petitioner should be entitled to interest down to the date of the filing of the bill, and the Supreme Court said, in effect, that the rights of all creditors, including claim for interest, are fixed when the court takes jurisdiction of the property. Hamlin’s Wizard Oil Co. v. United States Express Co., 265 Ill. 156; chap. 74, par. 2, Illinois State Bar Stats. 1935. See also Bentley, Murray & Co. v. La Salle St. Trust & Savings Bank, 197 Ill. App. 322. The respondent contends, however, that the intervening petitioner gave no notice of forgery and made no demand until he filed his petition on December 12, 1932. This would be inequitable. In this case the bank received the money by the forged indorsement, and retained it, thus depriving the intervening-petitioner of this money which the bank unjustly received.

Having considered the questions before us, we are of the opinion that the order appealed from must be affirmed.

Order affirmed.

Hall, P. J., concurs.

Sullivan, Denis E., J., took no part.


text:
    Katherine Schmidt, Appellant, v. The Equitable Life Assurance Society of the United States, Appellee.
    Gen. No. 38,001.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Bangs, Crane & Slater, of Chicago, for appellant; Drennan J. Slater, of counsel.

      Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Frederic Burnham: and Miles Gr. Seeley, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This appeal by the plaintiff is in this court for the purpose of a review of the record wherein a judgment was entered in favor of the defendant in plaintiff’s action in assumpsit on two life insurance policies executed by the defendant and issued upon the application of Edward C. Schmidt, the insured, wherein the plaintiff, his wife, was named as beneficiary in each of the policies. Upon the death of the insured, plaintiff was to receive from the defendant the sum of $5,271.60, being the amount due on each policy. The court sustained defendant’s demurrer to plaintiff’s second amended declaration, and upon plaintiff’s election to stand by her declaration, the court entered judgment for the defendant.

The material allegations of the second amended declaration are that the policies sued on were issued by the defendant on October 20,1925. They were applied for by the insured on September 17, 1925, and the initial premiums were paid on October 16, 1925. Each policy provided that the second and succeeding annual premiums were to become due on August 13, 1926, and each year thereafter.

It further appears from the allegations of the amended declaration that the consideration for the payment of the face value of the policies, upon the death of Edward C. Schmidt, was the annual payment in advance of premiums on each policy of $293.26. August 13th was the annual premium date. Seven annual payments on each policy were made by the insured to and including August 13, 1931.

Edward C. Schmidt died on September 16, 1932. The defendant was notified of his death the next day, but thereafter denied liability on the ground that the policies had lapsed because of a default three days prior to the date of death, being more than 30 days allowed under the terms of the policy within which to make payment of the premium due on August 13,1932.

The defendant concedes that the insured in the instant case received less than a full year of insurance coverage in return for his initial premium payment. It is obvious that the insured was not actually insured until the defendant issued the policies on October 20, 1925, and delivered them to Edward C. Schmidt, the insured. The time for payment is of course controlled by the contract of insurance. There must be a reason for this policy requirement that the premiums were to be paid and become due August 13th of each year.

Taking into consideration the entire contract, we find that in order to take advantage of a reduced insurance rate other than chargeable at the age of the insured, the insured stated in his application that he was born on February 13, 1874, and on the date of the application, September 17, 1925, would be rated for insurance premiums as of the age of 52 years, his nearest birthday. But the insured expressly requested in his application, “Date policy August 13, 1925 for age 51.” It is evident from this notation on his application that he wished to obtain a lower premium rate, and the contract of insurance bearing this notation, with the various provisions of the policy, fully appears from plaintiff’s amended declaration.

The theory of the plaintiff is that the parties intended that each annual premium should be due approximately two months before the first day of the policy year, and should purchase a full year’s insurance running from the effective date of the policy, October 16, 1925; that notwithstanding the requirement for premium payment in advance, the seven payments made by the insured gave him protection for seven full years, or until October 16, 1932, one month after date of death.

Plaintiff further contends that the provision in the policy, “Except as herein expressly provided, the payment of any premium, or instalment thereof shall not maintain this policy in force beyond the date when the succeeding premium or instalment thereof becomes payable,” is ambiguous, in that it does not specifically enumerate the exceptions where it has no application.

The defendant’s answer to plaintiff’s theory is that the law does not require, except in the absence of any agreement between the parties, that the initial premium paid upon a policy of life insurance shall purchase a full calendar year of insurance, but that when the parties agree that the second premium shall fall due in less than a year and that nonpayment thereof shall result in the expiration of the policy before it has been in effect for a full year, the law enforces such an agreement according to its terms.

The defendant contends that the failure of the insured to pay premiums due, as appears from the facts in the record, was a default, in fact, terminated the obligation of the defendant to pay the beneficiary the amount provided for by the policies. It is true that the insured was in default, but the policies themselves determine whether the beneficiary is without relief, based upon the fact of the death of the insured subsequent to a default. Certain options are provided for in the policies, which are, in substance, that after three full years’ premiums have been paid, on default of any subsequent premium and within three months after such default, the policy may be surrendered by the insured, who may elect one of the following options: (a) receive cash surrender value, (b) purchase paid-up insurance, (c) continue the insurance for the face amount as paid-up extended term insurance for the period shown by the table appearing in the policy. In the event of default in payment of premium after this policy has been in force three full years, if the insured does not select one of said options within three months after default, the insurance shall be continued as provided in option (c). If there is any indebtedness against the policy, the cash surrender value shall be reduced thereby, the paid-up insurance shall be reduced proportionately, and the extended term insurance shall be for the face of the policy, less indebtedness, and for such period as the reduced cash value will purchase.

It is not disputed that the insured paid more than three full years ’ premiums. It necessarily follows that the policies by the terms thereof, were still in force after nonpayment. Before the expiration of the time to exercise the option, the insured died. Action on the policies survived, and as a result the plaintiff is in a position as beneficiary to recover the amount due from the defendant, as provided for by the policies themselves. The contract provides for this, and the defendant is bound under the very terms of its contract. Otherwise, if the contract of insurance was at an end, all rights provided for in the contract would also terminate. To permit a forfeiture, however, under the circumstances, would be doing violence to the understanding of the parties in the instant case. This construction is reasonable and the rule is well established without the necessity of citation of authorities, that courts are inclined to construe a contract of insurance so that it will not impair the indemnity of the insured, and adopt one which is favorable to the insured in order that the beneficiary, as in the instant case, may recover. These policies were prepared by the company itself, and the language is its language, not the insured’s, and we believe that the interpretation of this court is in the sense in which the insured understood this provision. In construing this provision of the insurance contract, the language employed in these policies is controlling, and our conclusion that the policies were still in force is based upon the fact that after three full years’ payment of premiums where the insured defaulted, he was required to select one of three options within the fixed time, and upon failure to exercise the option selected, the policies automatically continued for the face amount of the policy as paid-up extended term insurance for the period shown by the table in the policy. But death interfered with the exercise of any of the options provided for in the contract, and by its terms, the contract was still in force and the right of action by the plaintiff survived, and she can maintain this suit to recover as beneficiary.

It is our opinion that the court erred in entering judgment for the defendant, and the same is reversed and the cause remanded with directions to the court to enter such other and further orders as may be consistent with the views herein expressed.

Reversed and remanded with directions.

Hall, P. J., concurs.

Denis E. Sullivan, J., took no part.


author: Mb. Justice Hebel

text:
    George F. Zorger, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 38,075.

      Opinion filed November 20, 1935.
    Hoyne, O’Connor & Bubinkam, of Chicago, for appellant ; Nathaniel Bubinkam and William S. Allen, of Chicago, of counsel.
    A. W. Martin and Edward H. S. Martin, both of Chicago, for appellee.
   Mb. Justice Hebel

delivered the opinion of the court.

This cause is in this court on appeal by the defendant from a judgment of $10,180 for the plaintiff entered by the court upon a verdict of the jury. The plaintiff brought suit upon two certificates under a group insurance policy, and seeks to recover for a total and permanent disability. The action is based upon the provisions of the policy, which provide that if an employee, while the insurance on his life under the group policy is in full force, shall become totally and permanently disabled or physically or mentally incapacitated to such an extent that by reason of such disability or incapacity he is rendered wholly, continuously and permanently unable to perform any work for any kind of compensation of financial value during the remainder of his lifetime, the amount of insurance will be paid to the employee either in one sum six months after the company has received due proof of such disability or incapacity, or in monthly instalments during five years, in accordance with the provisions of the group policy.

The life insurance policy, also sued upon, provides that if the insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he is rendered wholly, continuously and permanently unable to engage in any occupation or perform any kind of work for any kind of compensation of financial value during the remainder of his lifetime and such disability shall occur while said policy is in full force and effect and before any nonforfeiture provision shall become operative, the company, upon receipt of due proof of such disability, will waive premiums due after receipt by the company of said proof of such disability and will pay the insured a monthly income of $100 per month.

The facts as they appear from the evidence are that the plaintiff was insured as an employee of the defendant company under the terms of a group policy issued by the defendant. Two certificates for $4,000 each were issued by the defendant company and received by the plaintiff, together with a life insurance policy of $6,000, upon which premiums were paid to the defendant, and which were in force at the time of the instigation of this litigation.

The issues between the parties, from the facts as they appear in the record, are as to whether the plaintiff filed due proof of total and permanent disability, as required by the terms of the policies, and whether the evidence establishes that the company waived further and other proof of the disability suffered by the plaintiff by its action denying liability. Further, did the plaintiff establish by the evidence that he was totally and permanently disabled within the terms of the policies issued by the defendant?

The plaintiff filed his proof of claim alleging permanent and total disability, and upon receipt of plaintiff’s proof of loss the defendant investigated the plaintiff’s claim, and as a result of such investigation denied liability, upon the ground that the plaintiff was not totally or permanently disabled, and upon this ground alone denied liability under the provisions of the policies issued by the defendant.

The fact is that the plaintiff filed his proof of total and permanent disability upon the forms provided for by the defendant, and part of the proof of loss is the attending physician’s statement, which is signed by Dr. Joseph Mizock, and dated June 23,1931. The doctor answered the several questions, and in reply to the question to state, diagnose and describe fully the injury or illness causing the present disability, stated that the plaintiff was so disabled that he would for all time be prevented from engaging in any gainful work as the result of exophthalmic goiter, myocarditis and chronic nephritis. It also appears that the same doctor made a similar statement dated September 18,1931, the difference being* the date when the plaintiff’s health was first affected, March 3, 1931, instead of March 3, 1930, the date given in his former certificate. In the former certificate dated June 23, 1931, signed by the doctor and filed with the defendant company, it appears that he was first consulted on February 10,1931, and that he believes the insured has been continuously disabled from March 3, 1930. It is to be noted that both of these dates are prior to March 3, 1931. It is significant, however, that upon the filing of these certificates by the doctor, the defendant made an investigation and did not make any objection to the physician’s statements, other than to determine from defendant’s investigation that the plaintiff was not permanently disabled.

The defendant does not question that the proofs of loss were submitted by the plaintiff, but the contention is, as we understand from defendant’s brief, that the proofs submitted were not sufficient, and therefore the plaintiff cannot recover in this action. Among the cases cited, the defendant quotes a portion of the opinion of the court in the case of Garvis v. Northwestern Mut. Relief Ass’n, 102 Wis. 546, in which we believe the court stated a rule which is applicable to the case now before us, when it said:

“The contract required due proof of claim. That gave the assurer, necessarily, authority to require reasonable proof of the existence of the conditions upon which the claim against the company under the contract was based. The term ‘due proof’ did not require any particular form of proof which the assurer might arbitrarily demand, but such a statement of facts, reasonably verified, as, if established in court, would prima facie require payment of the claim.”

Applying this rule, the sole question to be determined is: If the evidence in support of the proof of loss establishes a prima facie case, which the defendant rejected, can the plaintiff, under the facts as they appear, recover under the terms of the policies of the defendant?

The question in this case is largely one of fact. From an examination of the record we find that a number of physicians were called as witnesses and testified as to the condition of the plaintiff, which testimony was based not only upon a physical examination, but also upon their answers to hypothetical questions. The evidence of the plaintiff clearly establishes the fact of his illness, and tends to show that he is suffering from exophthalmic goiter and a bad heart condition, and while there is some dispute as to plaintiff’s ability to engage in a gainful occupation, still it appears from all the evidence that the plaintiff is suffering from a physical disability. As to whether he is totally and permanently disabled was a question for the jury, and we are unable to say from this record that the verdict arrived at by the jury is against the manifest weight of the evidence.

In considering the objections, the defendant calls to our attention certain instructions alleged to be erroneous, but upon examination we are unable to find that the defendant for the purpose of the record made specific objection to the giving of the several instructions before the jury retired. The Civil Practice Act provides in sec. 67, ¶ 195, ch. 110, Cahill’s Ill. Rev. Stats. 1933, in part:

“. . . but all suggestions or objections to the instructions must be made before the jury retires from the bar, or within such further time as the trial court may by order allow before the jury retires from the bar, or they will be deemed to have been waived.”

As the record is silent as to the objections of the defendant, the question before us at this time cannot properly be considered in determining the question whether because of erroneous instructions a new trial should be granted. In the case of People v. Polak, 360 Ill. 440, the Supreme Court had occasion to consider this question, and upon consideration, the court said:

“The record fails to show any objections to these phases of the narrative instructions made before the jury retired, or any order made by the trial court before the jury retired from the bar allowing further time for the making of such objections, as required by rule 27 of this court, construed in conjunction with section 67 of the new Civil Practice Act. . . . The action of the trial court in giving instructions against which complaint is made is not properly preserved for review and this court is without authority to pass upon the correctness of such instructions.” See also People v. Mizzano, 360 Ill. 446. The defendant having failed to comply with the statutory provision, as well as the rules of court, for making an objection before the jury retires, this court will not consider the objections made, nor the error contended for in the giving of these instructions.

Our attention has been called to the question of admissibility of evidence of a witness produced by the defendant by which the defendant offered to prove that the witness had talked with Dr. Mizock on October 6, 1931, and that the doctor had made statements entirely contradictory to what he had certified in statements filed with the defendant company. This doctor was a witness upon the trial of the case, and during examination his attention was not called to any statements alleged to have been made by him which would tend to impeach his testimony. The general rule is that for the purpose of impeachment of a witness, the witness should be asked and given an opportunity to answer questions involving the supposed contradiction, and in this way the jury may determine from the attitude of the witness and his answers to the impeaching questions whether or not the evidence tends to impeach the witness.

In the case of Hirsch & Sons Iron & Rail Co. v. Coleman, 227 Ill. 149, the court held that before a witness can be impeached by showing that he has made oral statements out of court inconsistent with his testimony, he must be asked as to the time, place and persons involved in the alleged contradiction. This the defendant did not do in the instant case, and for this reason the trial court did not err in sustaining the plaintiff’s objection to the testimony of the witness called by the defendant for the purpose of contradicting that of Dr. Mizock.

Having considered the various objections made by the defendant, we believe the court did not enter erroneous rulings such as would deprive the defendant of a fair trial. On the contrary, we are of the opinion that the evidence sustains plaintiff’s theory and under the facts as they appear in the record he is entitled to recover the amount fixed in the policies.

For the reasons stated in this opinion, the trial court was fully justified in entering judgment on the verdict of the jury. The judgment is accordingly affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Louis Sevcik, Appellee, v. The County of Cook, Appellant.
    Gen. No. 38,201.

      Opinion filed November 20, 1935.
    Thomas J. Courtney, State’s Attorney, for appellant; Hayden N. Bell, Jacob Shamberg, William P. Kearney, William T. Chilly and Gerald E. Hornidge, Assistant State’s Attorneys, of counsel.
    Coburn, Kearney & Coburn, of Chicago, for appellee; John J. Coburn, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This appeal by the defendant is from a judgment of $2,000 in favor of the plaintiff and was entered by the trial court upon a verdict of the jury in an action of trespass instituted by the plaintiff against the defendant.

The purpose of this action is set forth in plaintiff’s declaration, in which it is alleged in substance that the plaintiff owned and was possessed of certain lands therein described, situated in the county of Cook, and that said land is improved with a certain dwelling and out buildings and is occupied by the plaintiff and his family, consisting of himself, his wife and children, and that part of said land is cultivated and used for growing crops and for garden purposes.

It is also alleged that Cook county, through its agents, had erected and maintained upon a large tract of land west of plaintiff’s premises a large public institution known as Oak Forest Infirmary or Poor Farm, where it furnished a home for about 6,000 inmates and certain attendants and employees of the defendant; that there were installed in the building so occupied modern plumbing and sanitary improvements, and defendant maintained there large laundries, kitchen, closets and water works and created a large volume of sewage of a noxious, stinking, poisonous and offensive character which the defendant disposed of by permitting the flow of such sewage in the direction of and upon the premises of the' plaintiff, and by so doing the defendant, with force and arms, on the day prior to the commencement of this action and continually for five years prior thereto, entered upon the plaintiff’s premises and permitted the sewage to flow and project thereon and dispose of the poisonous, stinking and offensive sewage, and has so continued to flow said sewage upon the premises, and that by doing so, the defendant appropriated plaintiff’s premises and damaged the same for a public purpose, without the consent of the plaintiff and without paying any compensation whatever therefor, and contrary to the rights of the plaintiff in the premises guaranteed by the Constitution of the State of Illinois, which provided that his property should not be taken or damaged for public purposes without just compensation.

It is further alleged that by means of such disposition of sewage upon the premises by the defendant, the premises became wholly unfit for residence purposes, and plaintiff and his family were greatly inconvenienced, annoyed and rendered sick and disordered by reason of certain stenches arising from such sewage.

To this declaration the defendant filed a plea of not guilty, together with a further plea that in the year 1915, the mesne grantors of the plaintiff sued the defendant for taking and using the same land, and that a judgment for $12,500 was rendered against the defendant, and further, that the close mentioned was the close, soil and freehold of the defendant.

The defendant contends that the county of Cook, being an involuntary corporation, is not liable at common law to respond in damages for tort. It is the generally accepted rule that counties may sue and be sued in Illinois, and while they cannot be held liable for damages in tort actions where the doctrine of respondeat superior must be invoked, they are nevertheless liable for property appropriated to their own use and for damages done to abutting property by reason of public improvements made in pursuance of corporate powers, and where the declaration contains all the necessary averments of fact for an action in assumpsit it is immaterial whether the declaration be considered as one in tort or in assumpsit. Roe v. County of Cook, 358 Ill. 568. The ground upon which this doctrine has been approved is that a county organization, such as the one in the instant case, is not voluntary but compulsory,- not for the benefit of individuals who have asked for such a corporation, but for the public generally. County of Cook v. City of Chicago, 311 Ill. 234.

In this case the facts are not seriously questioned by the defendant, but it is apparent from the record that the question of the flow of sewage from the county institution has been the subject of litigation, and the facts disclose that the sewage from defendant’s county institution flows into a ditch, and in doing so has caused odors such as have made it uncomfortable for the plaintiff and his family to reside in the home erected by them upon the land affected by the sewage flow.

The theory of the defendant is that the plaintiff having alleged that the land was taken without just compensation and in violation of the constitutional provision, it does not appear from the facts that there was a permanent taking or damaging as contemplated by the constitutional provision, or that it was taken by the defendant for public use without compensation.

In the discussion of liability of the defendant, it is clear from the argument that the position of the plaintiff is that the defendant is liable for damages, by reason of injury and disturbance of the quiet occupancy of plaintiff’s home, and that the question is one for the jury.

The general rule of law approved by the weight of authority in this and other States is that an employer is answerable in an action to recover damages for the negligence or want of skill of his agent or servant in the course or line of his employment, by which another is injured, but is held not to apply to counties, for the reason that counties are involuntary quasi corporations, being political or civil divisions of the State, created by general laws, to aid in the administration of the government.

In the case of Symonds v. Clay County, 71 Ill. 355, the court said:

“In the language of Chief Justice Marshall, in Fowle v. Common Council of Alexandria, 3 Pet. 398, a county may be termed a ‘legislative corporation, established as a part of the government of the country. ’

“The statutes prescribe all the duties which counties owe, and impose all the liabilities to which they are subject. Unless made so by express legislative enactment, they are not considered liable to persons injured by the wrongful neglect of duty or wrongful acts of their officers or ag*ents, done in the course of the performance of corporate powers or in the execution of corporate duties. The rule is the same with respect to such other organizations as townships, school districts, and road districts.” Citing many cases in support of the above state doctrine. And the court held that where the authorities of a county employed an agent to carry on its poor-farm, and clear up a portion of it, which was in brush, and the agent, in burning the brush, carelessly or negligently permitted the fire to communicate with an adjoining farm, whereby the owner thereof sustained damage, the county was not liable.

In applying this same rule the court in the case of Hollenbeck v. Winnebago County, 95 Ill. 148, held that at common law a private action will not lie against a county for injuries occasioned by the negligence of its servants or officers in respect to the performance or nonperformance of their duties. And there is no distinction, in the application of this rule, between the neglecting to do or perform an act which ought to have been performed, and the performance of the duty in a-negligent manner.

The Supreme Court in the case of White v. County of Bond, 58 Ill. 297, and Town of Waltham v. Kemper, 55 Ill. 346, in applying the same rule to actions against counties for negligence in the administration of the duties of the agents and officers of the county, held that the county was not liable for an injury to the defendant for the negligent conduct of its officers or agents.

An interesting case upon the question of the rights of a person claiming to have been injured because of a nuisance maintained by the county is that of Lefrois v. County of Monroe, 162 N. Y. 563, in which the court held that a county, which owns and maintains, for pub-lie purposes, a penitentiary, almshouse and farm, acts in a governmental capacity and is not liable for the acts of the officials controlling them, in permitting sewage and night soil from the buildings to be spread over the farm, and in allowing sewage and foul matter from the defendant’s building to run into a stream which ran along the land of the respondent owner, thereby polluting the air, and creating and continuing a nuisance to the damage of the land and stock of a neighboring owner, and he cannot maintain an action against the county for an injunction restraining such nuisance and for damages caused thereby. Other cases may be found sustaining this doctrine that the plaintiff cannot maintain an action against a county for damages of a nature such as we have in the case before us.

As a matter of fact, the plaintiff is not seeking to recover in this case upon the ground alleged in his declaration, namely, that the plaintiff’s land was appropriated and damaged for a public purpose without the consent of the plaintiff and without paying any compensation whatever, in violation of the provision of the Constitution of the State of Illinois, but seeks to recover for damages caused by the county- of Cook, the defendant herein, maintaining a public nuisance in the immediate neighborhood of the plaintiff’s land, which nuisance injures the health of the members of his family and disturbs the enjoyment of the plaintiff and his family in the possession of the premises described in the declaration.

The record is silent in that it does not show any evidence which would tend to guide the jury in reaching a conclusion as to the amount of damages sustained by the plaintiff. This of course is material if the plaintiff seeks to recover for the depreciation in value of the land and the improvements thereon. In this case the jury was not guided by any evidence of actual damage, but the plaintiff contends that in an action for damages to property occasioned by the defendant’s maintaining a nuisance in the vicinity, the general depreciation in the market or selling value of the property during the period of the nuisance is not the measure of damages, but plaintiff’s discomfort and the deprivation of the use of his home. This of course is the rule in a proper case. However, in this case we have reached the conclusion that the plaintiff cannot maintain an action for a nuisance against the county for the reasons stated in this opinion, and such being the fact and there being no evidence in the record on the theory of depreciation in the value of the land alleged to have been taken by the county without due compensation and in violation of the statute, there is not sufficient evidence to justify an affirmance of the judgment.

It has been suggested by the defendant, county of Cook, that the court erred in not permitting this defendant to show that a former owner had recovered $12,500 for "the taking and damaging of the same land for sewage purposes, and offered to show by certified copies of the record that Fred Holm, the former owner, recovered $12,500 for the appropriation of the land by the county of Cook for the taking and damaging of the land for sewage purposes, and the case of Holm v. County of Cook, 213 Ill. App. 1, is cited.

However, in view of the conclusions we have reached in this case it will not be necessary to pass upon the questions here contended for, and therefore the judgment for the plaintiff is reversed and the cause remanded.

Reversed and remanded.

Hall, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Denis E. Sullivan

text:
    Baker and Conrad, Inc., for Use of New Amsterdam Casualty Company, Appellant, v. Chicago Heights Construction Company, Appellee.
    Gen. No. 37,906.
    Opinion filed November 20, 1935.
    McKenna, Harris & Schneider, of Chicago, for appellant ; George T. Schneider and Abraham W. Brussell, of Chicago, of counsel.
    Kirkland, Fleming, Green & Martin, of Chicago, for appellee; David Jacker, John M. O’Connor, Jr., and William H. Symmes, all of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order of the superior court sustaining a demurrer of the defendant Chicago Heights Construction Company, a corporation, to a declaration filed by the plaintiff Baker & Conrad, Incorporated, a corporation, for use of New Amsterdam Casualty Company, a corporation, in an action to recover damages from the defendant because of its alleged negligence.

It appears from the record that after the jury had been impaneled to try the cause on the plea of not guilty, filed to the declaration, leave was granted to defendant to withdraw its plea and demur ore tenus. After argument the demurrer was sustained and an order of nil cepit was entered with costs versus plaintiff, from which this appeal has been taken.

The declaration consisted of three counts and from them we gather the following facts:

On March 12, 1929, Baker & Conrad, Incorporated, plaintiff, was engaged in the excavating business in Illinois and it came automatically under the provisions of section 3 of the Workmen’s Compensation Act, Ill. State Bar Stats. 1935, ch. 48, ¶ 202; that the defendant was engaged in the business of erecting and demolishing structures and as such was also automatically under the provisions of section 3 of the Workmen’s Compensation Act; that as part of its business the defendant, Chicago Heights Construction Co., by a contract with Montgomery Ward & Company, undertook to remodel and reconstruct a certain building’ erected in the City of Chicago Heights in Cook county, Illinois; that subsequent thereto the defendant entered into a verbal agreement with the plaintiff in regard to certain excavating work to be done by the plaintiff on such building premises and to pay the plaintiff the sum of $1,800 for such work. It was necessary to clear out certain excavated material from under the building and plaintiff sublet such work to one John Cor des who was the owner of certain teams and shovels and who employed men to do such excavating work» John Cordes entered into Ms work on the premises by virtue of his contract with the plaintiff, Baker & Conrad, Incorporated, and among the men employed was one Luther Storey. John Cordes was also operating under the provisions of the Workmen’s Compensation Act. That Chicago Heights Construction Company was at that time engaged in one of the businesses enumerated in section 3 of the Workmen’s Compensation Act and that the accidental death of said Luther Storey was caused under circumstances claimed to create legal liability for damages in said Chicago Heights Construction Company.

On February 27,1929, the New Amsterdam Casualty Company, one of the plaintiffs, had issued an insurance policy indemnifying and insuring Baker & Conrad, Incorporated, the plaintiff, against any loss which Baker & Conrad, Incorporated, might sustain under the Workmen’s Compensation Act. In said policy it was provided that the said New Amsterdam Casualty Company would be subrogated to any and all rights had by said Baker & Conrad, Incorporated, against any third party when any such third party caused losses by virtue of the Workmen’s Compensation Act, to fall on the New Amsterdam Casualty Company.

It is further alleged in the said counts of the declaration that while John Cordes was worMng on the premises with his men, including Luther Storey, the defendant negligently and carelessly engaged in the altering and removing of the said building and failed to use proper support beams, lumber and shoring to maintain and support the building, and as the result of such negligence of the defendant, the bmlding fell apart and toppled over, causing part of the building to fall into the excavation and kill Luther Storey, the employee of John Cordes; that such death of Luther Storey occurred without any negligence on his part or on the part of Baker & Conrad, Incorporated, or any of its employees, or on the part of John Cor des or any of his employees.

Luther Storey left a widow, who filed application for compensation under the Workmen’s Compensation Act, and after a hearing the arbitrator of the industrial commission found that the widow was entitled to compensation from Baker & Conrad, Incorporated, one of the plaintiffs, on the ground that on March 12, 1929, John Cordes was the direct employer of the deceased; that he was without insurance and that Baker & Conrad, Incorporated, plaintiff, was the contractor and was liable under section 31 of the Workmen’s Compensation Act.

The declaration further alleges that by virtue of the award the New Amsterdam Casualty Company, one of the plaintiffs, has made payment to the widow of the deceased and is further liable to the widow for a definite sum. It is further claimed by the plaintiff that the New Amsterdam Casualty Company by virtue of the provision of the policy of insurance, became the subrogee of the right of action which Baker & Conrad, Incorporated, has by virtue of section 29 of the Workmen’s Compensation Act of the State of Illinois.

It is further alleged in the declaration that by virtue of said policy it was agreed that the New Amsterdam Casualty Company, the plaintiff, should be subrogated to any and all rights that said Baker & Conrad, Incorporated, might have against any party by virtue of which the New Amsterdam Casualty Company, plaintiff, became liable for and did pay losses arising under the Workmen’s Compensation Act; that as a result of said policy the New Amsterdam Casualty Company became liable to pay, has paid and is continuing to pay the award described in the declaration and that by virtue of such the New Amsterdam Casualty Company is the subrogee of Baker & Conrad, Incorporated. We are asked to so construe the Workmen’s Compensation Law of Illinois as well as the common law so as to sustain the declarations under one theory or the other.

The demurrer ore tenus filed by the defendant was the equivalent of a general demurrer. People ex rel. McGraham v. Armstrong, 196 Ill. App. 199.

The two sections of the Workmen’s Compensation Act which counsel agree are pertinent to the controversy herein, are sections 29 and 31 of chapter 48, pars. 229 and 231, Cahill’s Ill. Rev. Statutes 1933, and read as follows:

“229. Rights of Employee and Employer Where Injury Occasioned by Third Person.] § 29. Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the. employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee. Where the injury or death for which compensation is payable under this Act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this Act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either- with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or his personal representative; Provided, that if the injured employee or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employee or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employee or personal representative or in his own name against such other person for the recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee or personal representative, all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, and all costs, attorneys’ fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability. ’ ’

“231. Liability of Employer — Compensation of Employees of Contractor or Sub-Contractor — Recovery Over From Contractor and Sub-Contractor— Limit to Injuries on Immediate Premises.] § 31. Any one engaging in any business or enterprise referred to in sub-sections 1 and 2 of section 3 of this Act who undertakes to do any work enumerated therein, shall be liable to pay compensation to his own immediate employees in accordance with the provisions of this Act, and in addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he shall be liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor shall have insured, in any company or association authorized under the laws of this State to insure the liability to pay compensation under this Act, or guaranteed his liability to pay such compensation.

“In the event any such person shall pay compensation, under this section he may recover the amount thereof from the contractor or sub-contractor, if any, and in the event the contractor shall pay compensation under this section he may recover the amount thereof from the sub-contractor, if any.

“This section shall not apply in any case where the accident occurs elsewhere than on, in or about the immediate premises on which the principal has contracted that the work shall be done. ’ ’

It is contended by the plaintiff that these two sections of the statute should be so construed as to create a liability against the defendant, Chicago Heights Construction Company, for the death of Luther Storey which right of action became vested in the plaintiff, Baker & Conrad, Incorporated, and by the terms of the insurance policy was assigned to the other plaintiff, New Amsterdam Casualty Company.

At the expense of repetition we will again state the relationship of the parties. Chicago Heights Construction Company was the original contractor. Baker & Conrad, Incorporated, one of the plaintiffs here, was the subcontractor who was insured by the New Amsterdam Casualty Company, who claims to be the subrogee. John Cordes was the sub-subcontractor and the deceased Luther Storey was the employee of John Cordes. Cordes was not insured.

It is admitted in the declaration that the liability for the death of Storey was adjudged by the industrial commission against the plaintiff, Baker & Conrad, Incorporated, and assumed by the coplaintiff New Amsterdam Casualty Company and paid by the latter. The plaintiff Baker & Conrad, Incorporated, had as the statute provides, insured itself against all claims' arising under the statute. It has paid out nothing; it has lost nothing and, consequently, has sustained no damage. But,’ for anything that appears in the declaration, plaintiff Baker & Conrad, Incorporated, may have recovered from John Cordes, the subcontractor, any claimed damages, as provided by statute. We are asked to so construe the statute by implication that damages to the employees of the sub-subcontractors shall become a liability of the original contractor. We do not see that we can read into the law anything which is not plainly there, as has been stated by our Supreme Court in the case of Morris & Co. v. Industrial Commission, 295 Ill. 49, wherein the court said:

“This court must be governed by the law and can only enforce liability under its terms and provisions. We have, in accordance with the objects and intent of the Workmen’s Compensation Act, construed it liberally in favor of the employee, but we cannot create a liability where the law creates none, ...”

The statute speaks of subcontractors, but in no place does it include the employees of sub-subcontractors. Cases involving the Workmen’s Compensation Act have been before the Supreme' Court many times, but in no instance has it held that a contractor is liable for the injury of the employees of sub-subcontractor.

In Halpin v. Industrial Commission, 319 Ill. 130, it appeared that Halpin was a contractor and at the time in question was erecting two buildings and had various materials for construction work hauled to the respective premises; that one Perry worked for Mrs. Van Kirk and Henry Van Kirk, her son, and that Henry Van Kirk applied to Halpin for work, and an arrangement was made whereby Van Kirk was to use his mother’s team and wagon for hauling building-materials, and on the day of the accident the deceased Perry was driving Henry Van Kirk’s wagon when the accident occurred. The court said in the course of the opinion in regard to section 31 of the Workmen’s Compensation Act:

“The chief purpose of this provision in the act is to protect employees of subcontractors in case the latter are not financially responsible, and the act makes the principal employer liable the same as if he had directly hired the employees for the work which such principal employer is carrying on.

“Counsel for defendant in error now say in their brief in this court that they are impressed with an entirely new light; that plaintiff in error was the employer of Perry and was directly liable as such, and that liability under section 31 is an alternative contention. . . . The claim was prosecuted under the liability imposed by section 31, and the arbitrator and-circuit court held plaintiff in error liable and based an award upon that section. At no time was it suggested that plaintiff in error was the employer of Perry and directly liable as such. The question now raised was never raised at any stage until the case reached this court, has never been passed upon by the lower court, and was not presented to or argued in that court by counsel on either side. It would seem unfair to plaintiff in error to affirm the award, under the circumstances, on the ground now urged. But even if defendant in error has the right to raise the question for the first time in this court it cannot avail, for under the undisputed facts plaintiff in error was not directly liable as the employer of Perry.”

As to the claim that the declaration states a cause of action at common law, it is quite apparent from a reading of it “that this contention cannot be sustained for the reason that, being- based on a personal injury causing death, an action sounding in tort is not recoverable at common law. Eight of recovery is wholly statutory. Secondly, the cause of action for tort is not assignable, as against public policy. Such cause of action is vested solely in the next of kin. North Chicago St. R. Co. v. Ackley, 171 Ill. 100; Cameron v. Illinois Steel Co., 162 Ill. App. 461. The Workmen’s Compensation Act specifically forbids bringing either common law or statutory actions. Section 6 of the Compensation Act, Cahill’s Ill. Rev. St. 1933, ch. 48, ¶ 206, reads as follows:

“ § 6. No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury; . . . ”

Having examined all the counts of this declaration and the law applicable thereto, we have failed to find sufficient allegations to state a cause of action under the statute or at common law. We think the demurrer was properly sustained and for the reasons stated in this opinon the order and judgment of the superior court are accordingly affirmed.

Order and judgment affirmed.

Hall, P. J., and Hebel, J., concur.


text:
    The Illinois National Casualty Company, Appellant, v. Frances H. Lemmon et al., Appellees.
    Gen. No. 37,940.
    Opinion filed November 20, 1935.
    Shearer, O ’Halley & Sears and Beverly & Klaskin, all of Chicago, for appellant; Barnabas F. Sears and Samuel T. Klaskin, of counsel.
    No appearance for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment of the superior court in favor of the defendant Frances H. Lemmon, the surety, in an assumpsit suit brought by the plaintiff.

In 1930 one Bay N. Lemmon, a son of the defendant, was in the employ of the plaintiff selling insurance and collecting therefor and, upon an accounting, it was found that there was due the plaintiff from the said Ray N. Lemmon the sum of $2,401.09. Thereafter negotiations proceeded between the plaintiff and the defendant Ray N. Lemmon, the result of which was the giving of a bond securing the payment of said amount with the defendant Frances H. Lemmon, as surety. Said agreement contained a recital that the said Ray N. Lemmon was. at that time indebted to the United States Underwriters Company in the sum of $2,401.09, and that in consideration of retaining in force by the United States Underwriters Company of all policies, of insurance procured by the said Ray N. Lemmon, upon which no premiums had been received by the company; it was further provided in and by said contract that from December 15, 1930, up to and including December 14, 1931, the said Ray N. Lemmon should receive $30 per week in advance as against commissions and that the said Ray N. Lemmon should turn over all moneys that he collected from persons insured on policies of insurance obtained by him daily, from day to day, and that the failure of the said Ray N. Lemmon to make the daily remittances would be considered an actual conversion of the moneys of the said United States Underwriters Company.

It further appears that the said Ray N. Lemmon failed and neglected and refused to pay over to the United States Underwriters Company all the moneys so collected by him as insurance premiums and which the said Ray N. Lemmon had collected for and on behalf of the plaintiff in excess of $3,000.

To this declaration was filed an unverified plea of the general issue and a. second plea.wlfich.was for want of consideration, and that the taking" of said bond constituted the compounding of a felony by the plaintiff.

• When the. case was reached for trial a jury was waived.

We are not aided in our consideration of this cause by the appearance or briefs of defendants.

The contention of the plaintiff is that it is a valid contract and that it should be permitted to recover on it. Defendant claimed in the court below that the making of the contract was done to avoid criminal prosecution and thereby compounding a felony. Nothing in the contents of the bond by its terms would indicate this was done, nor does it appear that it was signed by the surety with this purpose in mind. The court apparently held that the giving of such a bond was against the public policy of the State and was, therefore, void and no recovery could be had thereon. Chapter 38, par. 112, of the Criminal Code, Cahill’s Ill. Rev. Stat. 1933, provides:

“Whoever takes money, goods, chattels, lands or other reward, or promise thereof, to compound any criminal offense, shall be fined in double the sum or value of the thing agreed for or taken; but no person shall be debarred from taking his goods or property from the thief or felon, or receiving compensation for the private injury occasioned by the commission of any such criminal offense.”

In Oconto Nat. Bank v. Weber, 240 Ill. App. 222, at page 226, the court says: “But it is not illegal merely to compromise the civil injuries resulting from a criminal act where it is not expressly or impliedly agreed that the prosecution for the crime is to be prevented or suppressed and a note given in consideration of moneys embezzled is valid and enforceable, there being no agreement to conceal or suppress a prosecution for the offense. 3 R., C. L. 958. The .true rule seems to be that notwithstanding the pendency of criminal proceedings against.a 'wrongdoer one whose money or property has been fraudulently obtained may contract for repayment of the money or satisfaction for .the loss sustained and take security therefor, without invalidating the contract, unless there be included therein, as a part of the consideration therefor, some promise or agreement, express or implied, that such prosecution shall be suppressed, stifled or stayed. ’ ’

In the instant case no legal proceedings were pending, nor does the record disclose that any were contemplated. As previously stated we are not favored with a statement of the position of the defendants except as we may glean from a perusal of the abstract filed by plaintiff.

Inasmuch as this cause must be tried again we refrain from making* comment upon the evidence. As to the decision of the court, which seems to be based upon the validity of the bond or agreement, the judgment is reversed and the cause is remanded for a new trial in accordance with the views herein expressed.

Judgment reversed and cause remanded:

Hall, P. J., and Hebel, J., concur.


text:
    Shirley Heinsius, a Minor by Her Next Friend, Martin Heinsius, Appellant, v. August H. Poehlmann, Appellee.
    Gen. No. 37,958.

      Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Myer H. Gladstone, of Chicago, for appellant.
    Mort D. & Frank Goldberg, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order of the superior court vacating and setting aside a judgment for $30,000 entered by said court against the defendant on the verdict of a jury. There was also a finding that said injury was maliciously caused. This judgment was thereafter set aside upon motion in the nature of a writ of error coram nobis filed by the defendant.

It appears from the abstract that on December 22, 1932, defendant was sued in the superior court for injuries to plaintiff caused by the automobile of the defendant; that at that time defendant was insured by the Public Indemnity Company against all losses or damages he might sustain by reason of the operation of said automobile; that upon being served with the summons in said suit, he took the same to his said insurance company and they informed him that he need pay no further attention to said suit as they were protecting him; that on March 7, 1933, thereafter the insurance company caused a firm of attorneys to enter the appearance of the defendant and their appearance as his attorneys and filed a plea of not guilty on behalf of the said defendant to the said declaration; that thereafter upon notice to the attorney for plaintiff by said attorneys for the defendant that they would appear before his honor, Judge Marcus Kavanagh and ask for leave to withdraw their appearance as attorneys for defendant. On November 17, 1933, an order was entered giving said attorneys for the defendant leave to withdraw their appearance as attorneys for defendant. No notice was given to the defendant by his said lawyers of the withdrawal of their appearance. Thereafter on April 27,1934, a jury was called and a verdict returned finding the defendant guilty and assessing the plaintiff’s damages at the sum of $10,000. On the same day an order was entered as follows:

‘ ‘ This cause being called for trial ex parte comes the plaintiff to this suit by her attorney and issues being-joined it is ordered that a jury come, etc. . . . and a true verdict render according to the evidence., . . .
“Whereupon the said jury return their special finding upon the question as submitted to them by the Court. Question-: ‘Was the defendant August H. Poehlmann, at the time and place in question, guilty of wilful, wanton and malicious conduct in operation of the automobile in question? Ahswer: Yes.’
“It is therefore ordered that judgment be and the same is hereby rendered upon the verdict of the jury in favor of the plaintiff and against the defendant.
“It is therefore ordered that the plaintiff Shirley Heinsius a minor by her next friend Martin Heinsius do have and recover of and from the defendant August H. Poehlmann her said damages of Ten Thousand Dollars in form as aforesaid by the jury assessed together with her costs and charges in this behalf expended and have execution therefor.
“Judge Marcus Kavanagh.
“April 27th, A. D. 1934.”

It further appears that the defendant first learned of said judgment on September 17, 1934, when he was served with a capias ad satisfaciendum; that he then appeared by other counsel and filed a petition and made a motion asking relief in the nature of a writ of error coram nobis to vacate the said verdict and judgment. He states in said petition that he learned that the case was proven as a default matter and he had no knowledge of the same; that he has a good and meritorious defense and that he was not guilty of wilful and wanton negligence, and that the accident occurred only through the negligence of the driver of the automobile in which plaintiff was a passenger; that the said plaintiff Shirley Heinsius did not suffer any personal injuries whatsoever. He further states that a judgment against him in the sum of $10,000 is exorbitant and excessive. He prays that the judgment, verdict and special interrogatory propounded may be vacated and set aside and that he have leave to appear and defend and that said cause be set down for trial.

Thereupon plaintiff moved to dismiss the petition of defendant for several reasons. Thereafter, on October 9, 1934, on the said petition and motion to dismiss which came before Judge Kavanagh, it was ordered that the verdict and judgment heretofore rendered herein be vacated and set aside. Plaintiff prays that an order may be entered reversing the said order of October 9,1934.

We have not been aided with briefs on the part of the defendant in our consideration of this cause. •

The common law writ of error coram nobis has been abolished in this State and in lieu thereof par. 200, chapter 110, Ill. State Bar Stats. 1935, has been adopted. The deduction to be made from the statute and the cases applicable is that the purpose of the writ of error coram nobis, or the motion under our statutes is not to review the errors of the trial judge, but to grant relief where there is some fact in the record which, if known to the court at the time, would have prevented the entry of the judgment.

Rule 14 of the superior court provides:

“Rule 14. Withdrawal of Attorneys or Solicitors, Sec. 1. No attorney or solicitor shall be permitted to withdraw his appearance for any party unless the Court shall be satisfied, by affidavit or otherwise, that such party has had reasonable notice of the application for leave to do so.

“Sec. 2. Unless another attorney or solicitor is at the time of such withdrawal substituted for the one withdrawing, the party shall file in the case forthwith a supplementary appearance stating therein an address within the county at which service of notices or other papers may be had upon him. In case of his failure to file such supplementary appearance, notice, if by mail, may be directed to him at his last known business- or residence address. ’ ’ No notice of any kind was given to the defendant by his lawyers that they intended to withdraw their appearance; and in withdrawing the appearance of the lawyers, the fact remained that the appearance of the defendant still remained in court; and that no notice was given to him that the cause was to be placed on the trial calendar or called for trial. It could not be called ex parte, without notice to said defendant whose appearance was on file.

In the case of Sommer & Maca Glass Machinery Corp. v. Johnson, 278 Ill. App. 620 (not reported in full), Mr. Justice Hall speaking for this court said:

‘ ‘ There is nothing in the record to indicate that the cause was reached on a trial call on June 9th, 1933, or that defendant had any reason to believe that the cause was to be heard on that day. Even though the court might have been justified in striking defendants’ affidavit of merits, the record shows that a plea of defendants to the declaration still remained on file and our conclusion is that under the rule just quoted the court was not justified in hearing the case ex parte at that time and in entering judgment for the plaintiff. There is nothing in the record to indicate that defendant had notice that when the motion to strike the affidavit of merits was heard on June 9th, 1933, the court would do more than to pass upon that motion.” This decision was affirmed by the Supreme Court by the refusal of a writ of certiorari. As in the above case, we are of the opinion that the absence of notice was a question of fact which was not brought to the attention of the court, and did not involve a question of law.

In Risedorf v. Fyfe, 250 Ill. App. 122, this court said:

“In Straus v. Biesen, 242 Ill. App. 370, the court held that it was error to assess damages without notice to defendant whose appearance was on file, and for that reason reversed the judgment.

“Proceedings under section 89 of the Practice Act, Cahill’s St. ch. 110, ¶ 89, required the court to pass on the question as to whether there was an error in fact in the record before it. We will presume that if the court had known that the defendant had his appearance upon file, and that no notice had been given him of the application for default and judgment, the court would not have proceeded to assess the damages in the case. The absence of notice was a question of fact which was not brought to the attention of the court, and did not involve a question of law. The question of law must be based upon the fact, and the law was that without notice to the defendant, whose appearance was on file, there could be no valid judgment. That no notice was given, and that defendant’s appearance was on file, were matters of fact which were unknown to the court. ’ ’

It is contended by plaintiff that it is the duty of a defendant to personally watch his case and be ready when it is called for trial, citing Hahn v. Gates, 169 Ill. 299. That case is clearly distinguishable from the instant case in that there is no showing that this case was on a regular trial call when it was heard.

Plaintiff’s second contention is that the motion in the nature of a writ of error coram nobis is not to relieve a party from the consequences of his own negligence, citing McCord v. Briggs & Turvias, 338 Ill. 158. We cannot find that the defendant is chargeable in this cause as above stated. We do not think that the cases cited by counsel apply to the facts in this case.

The other point made by plaintiff’s counsel is that a writ of error coram nobis is used to obtain relief from errors of fact, citing Chapman v. North American Life Ins. Co., 292 Ill. 179; and other cases. We agree with counsel, but as stated in Straus v. Biesen, 242 Ill. App. 370, and as heretofore stated, the absence of notice was a question of fact which was- not called to the attention of the court and did not involve a question of law. The other contention raised under counsel’s third point is that a writ of error coram nobis cannot be used to question the extent of injuries or the amount of a judgment. That may be true, but such result is only incidental and not the basis of the decision of this court.

We are of the opinion that the order of the superior court setting aside said verdict and judgment should be and it hereby is affirmed.

Order affirmed.

Hall, P. J., and Hebel, J., concur.