author: Mr. Presiding Justice Stone

text:
    Ida Paoli, Appellee, v. Loyal Protection Insurance Company, Appellant.
    Opinion filed March 4, 1937.
    Leahy, Walther, Hecker & Ely, Lyon Anderson, all of St. Louis, Mo., Felsen & McMurdo and L. H. Degnan, all of East St. Louis, for appellant.
    Philip G. Listeman, of East St. Louis, for appellee; James K. Moran, of East St. Louis, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of $1,553.95 in a suit to recover on an accident insurance policy issued by defendant to Guido Paoli, in which policy the plaintiff Ida Paoli was named as beneficiary of the death benefit.

The policy was issued April 21, 1925. The principal sum provided as a death benefit was $1,000 plus an increase of 50 per cent, after the policy should be in force three years. At the time of insured’s death, April 18, 1935, the policy had been continuously in force since its issuance, so that by its terms $1,500 was payable in the event of death of insured through accidental means.

The material portions of the policy consisting of the first page and that part of the second page containing signatures of the officers of appellant were attached to the complaint as Exhibit A and were introduced in evidence by the appellee as plaintiff’s Exhibits A, A-l, and A-3. The first page of the policy is captioned with this language: “This policy provides indemnity for loss of life, limb, sight or time by accident, to the extent therein provided.” On the same page, under the title, “Loss of Life by Accident” the appellant agrees to pay to the beneficiary the principal sum “If the death of the insured occurs while this contract is in force, as a result of, and within ninety (90) days after an occurrence of, an injury causing total disability immediately and continuously until death. ’ ’

Those parts of the policy that were not introduced by appellee were introduced by appellant as defendant’s Exhibit 4. In paragraph 4 of appellant’s Exhibit 4 it is provided that in the event of accidental death, immediate notice thereof must be given to the company.

Section A of defendant’s Exhibit 4, under the heading “General Conditions and Provisions” provides “Indemnity shall not be payable for injury unless same be the result of external, violent and accidental means, leaving upon the body external marks of contusion or wound visible to the eye and unless same be independent of all other causes, and not wholly or partly, directly or indirectly, the result of disease.” It is this provision that appellant contends requires proof that the insured’s death was occasioned by accidental means before a recovery in favor of the plaintiff can be sustained. Appellee contends that it only applies to a bodily injury causing disability and does not apply to the loss of life by accident.

The uncontradicted proof shows that Guido Paoli, the insured, at the time of his death was 40 years of age; that he was married and had lived with his wife and family in the city of Collinsville, Illinois, for 14 years prior thereto. He was five feet tall, weighed 167 pounds, and was a strong, healthy, well-nourished and robust person, accustomed to performing hard labor. He began working at a coal mine at the age of 13 years. For many years prior to his death he earned his livelihood by means of hard, common, manual labor. He was not known to have been sick or ill at any time. During the war he served overseas in the United States Army. For some time prior to the 30th day of March, 1935, he had been building an addition to his home, and did all of the concrete work and manual labor thereon. On that day he arose about 5 o’clock a. m., went into his yard and worked until around 7 o ’clock; then he had breakfast with his wife. At the time he appeared to be in the same state of good health that he had always been. At breakfast he carried on a normal conversation. At about 7:30 o’clock that morning he took a wheelbarrow that weighed about 50 pounds and started to a lumber yard that was in the same block, immediately west of his residence. He pushed the wheelbarrow west along the sidewalk, and when he reached the house of Dan Gansner, a neighbor, he was called to the place where said Gansner was working, and they carried on a conversation. This neighbor had known the deceased for 12 years, and he said that he noticed nothing wrong with him physically, and that he carried on a normal conversation with him. After conversing with Mr. G-ansner for a few minutes deceased again started on his way toward the lumber yard, pushing his wheelbarrow until he came to a grocery store operated by Otto Schreiber. Here he stopped for a few minutes and talked with Mr. Schreiber, who had known bim for 14 or 15 years. Mr. Schreiber testified that the deceased appeared to be in good health and talked friendly as usual, and that when they concluded their chat the deceased proceeded to the lumber yard, which-was between 100 and 150 feet west of Mr. Schreiber’s. store; that he walked in the same manner as the witness had seen him walk for a number of years prior thereto. Upon reaching the lumber yard, the deceased went into the office and asked the manager for a sack of cement, and he was instructed to push his wheelbarrow to a loading dock which was approximately 100 feet south of the entrance of the yard.

The cement was kept at a loading dock in sacks about 30 inches long and weighing 95' pounds. The deceased placed his wheelbarrow parallel with the loading’ dock, facing the north, and about 18 inches from the west side of the dock. The floor of the dock was approximately three and one-half feet from the ground. He was facing the north and was standing between the dock and his wheelbarrow and he turned to the east, took hold of the sack of cement with both hands, and started to lift it from the loading’ dock to the wheelbarrow. When he had the sack of cement elevated above the wheelbarrow, he dropped it, fell or leaned against the west wall of :the dock, and took a few steps and fell down. He was unable to arise and an automobile, was driven to where he was lying’ and two men assisted him into the automobile. At that time he was unable to use his legs. He was seated on the floor of the automobile and taken to a doctor, who administered a hypodermic injection. From the doctor’s office he was taken to his home, arriving there about 8:30 a. m. Mr. Gransner, the neighbor with whom he had talked that morning, came to the automobile and assisted him into the house. He could not use his legs and was pale. He was placed in bed and became semiconscious and remained in that condition until he arrived at the Jefferson Barracks Hospital in St. Louis, between 2 and 3 o’clock that afternoon.

Upon being admitted to the hospital he stated that while attempting to lift a sack of cement, he fell to the ground and was unable to arise; that later he lost consciousness for approximately 15 minutes, and was told that he frothed at the mouth.

The evidence shows that while he was in the hospital he remained in bed, was conscious at times and was able to talk and walk at times. Tests made of his heart, lungs, eyes, ears, bladder, liver and nose showed that there were no defects in any of those organs. His temperature and pulse reading's were normal. On April 15, 1935, his temperature began to rise and his pulse increased. From a normal reading* of 20/20 on April 5, 1935, his temperature began to rise and his pulse increased. From a normal reading of 20/20 on April 5, 1935, the vision of both eyes was reduced to 20/200 on April 18, 1935, which the doctor said was approaching blindness. He gradually grew worse until he was unable to see at all, and fell into a coma and died on April 18, 1935.

A post mortem examination disclosed an abscess of the brain.. It was admitted that his death was occasioned by reason of that abscess.

Appellee produced Dr. Francis M. Barnes, Jr., who qualified as an expert in mental and nervous diseases and brain injuries. He testified that the insured died from an abscess of the brain; that this abscess, in his opinion, began about April 14th or 15th, when the hospital records showed that the deceased had a high temperature and his pulse was above normal, and his vision was greatly reduced. Dr. Barnes testified that, in his opinion, at the time the deceased lifted the sack of cement, there was an alteration or impairment in the circulation of the blood supply to the brain, caused either by a small hemorrhage or the break or rupture of a blood vessel in the brain, and that this condition resulted in a thrombosis; that the thrombosis comprised the seat for an infection which later developed, causing the abscess in the brain. He said that lifting the sack of cement in the manner described would or could have been sufficient to produce a hemorrhage or rupture of a blood vessel in the deceased’s brain. He said that from the evidence contained in the hospital reports the deceased had no other condition or infirmity which could be the cause of death.

Appellant offered no testimony, but at the close of all the evidence moved to instruct the jury to find the issues for the defendant, contending that there was no evidence that the death of the insured was caused through external, violent and accidental means; that, therefore, there was no liability. It also contended and contends here that in order for the jury to find that the alleged strain caused insured’s death it was necessary to pile inference upon inference; and that there is no substantial evidence that the alleged strain did cause the abscess from which the insured died.

It is claimed by appellee that each of these assignments of error is fully met by the evidence in the record and the law applying thereto.

In appellant’s claim that the evidence does not warrant a verdict that defendant came to his death by . accidental means and that under the evidence in the case the court should so have instructed the jury, many cases are cited, notably the case of United States Mut. Accident Ass’n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60.

In the Barry case the deceased with two other physicians was undertaking to take the short way around to reach a certain destination. This necessitated jumping from a small platform to the ground. The deceased was a doctor of the age of 30 years and was in company with two other physicians. The other two jumped from the platform safely and the deceased jumped and lit in some way to attract the attention of the other doctors. He stated he thought that he was not hurt, but serious injuries followed the incident, from which deceased died. It was there contended that there was no evidence of accidental means which brought about the injury and subsequent death of deceased. The Supreme Court of the United States in affirming the decision gave a definition to the words “accidental means” in approving the charge of the trial court, which has become almost universally the definition adopted by the courts of the land. The court used this language: “It is further urged that there was no evidence to support the verdict, because no accident was shown. We do not concur in this view. The two companions of the deceased jumped from the same platform at the same time and place and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were on all the evidence at liberty to say that it was an accident that he did not. ’ ’ That seems to us a perfect parallel for the case at bar. It must be presumed that the deceased in this case intended to lift the sack of cement without injury to himself and that he thought he would. If there was more evidence of an unforeseen event entering into the injury of the deceased in the Barry case than in the case at bar we are unable to discern it. The jump and the alighting was the cause of the injury in the Barry case, if there was an injury. It seems to us equally plain that the lifting of the sack of cement in the case at bar was the cause of the injury, if there was an injury. How could the deceased in the Barry case have injured himself in that jump? He did the thing he started out to do, and so far as the evidence shows, did it in the way he intended to do it, and some unforeseen thing entered into it. Perhaps he lit on his heels; maybe his legs were held unduly stiff. Nobody knows from the record just what happened. In the case at bar the man intended, of course, to lift and place in his wheelbarrow the sack of cement. Perhaps he was standing in a position a little different from what would have been safe; perhaps the sack of cement turned out to be heavier than he anticipated and, consequently, the lift larger. We have about the same amount of intelligence in one of these incidents as the other.

The court further held in the Barry case, supra, that “the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected in the act of jumping from the time the deceased left the platform until he alighted on the ground; that the term ‘accident’ was used in the policy in its ordinary popular sense as meaning happening by chance.” In the case at bar the court instructed the jury that in order for the plaintiff to recover he must prove by a preponderance of the evidence that his deceased, the insured, came to his death as the result of external, violent and accidental means independent of all other causes. The issue was thereby placed before the jury, it seems to us, just as definitely and with the same duty and responsibility as was true in the Barry case, supra.

The court further said in the Barry case, — and this appellant is relying upon, — “that if a result is such as follows from ordinary means voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means.” Adopting this definition as the standard, as the courts of the country have done, we are unable to accept appellant’s contention that a peremptory instruction was proper in this case, in view of the verdict and judgment that was upheld in the Barry case.

Illustrations might be multiplied, but we cannot divorce ourselves from the conclusion that the facts in the two cases are so similar that they must be controlled by the same principles. The deceased in this case was a strong, healthy man, accustomed to hard work and outdoor life. He was well and hearty on that particular day; he was at his usual work; he was in his usual mood. There was nothing to indicate anything but a sound, healthy physical body. He undertook to remove this sack of cement. When he lifted it, or attempted to lift it or slide it, he gave way; his legs went from under him; he became paralyzed.

The jury must decide, as they did decide, whether what happened there was the result of accidental means in view of the law as the court laid it down to the jury in its instructions, following the same principle as in the Barry case.

We are unable to distinguish any substantial difference in the two sets of facts and the two sets of instructions given to the respective juries, and certainly not to the extent that in the Barry case a verdict for accidental death should be upheld by the Supreme Court of the United States and in this case it should be held by us as a matter of law that the deceased did not receive his injuries through accidental means.

While the Barry case, supra, is perhaps the leading case in this country on this particular subject, it does not stand alone. There is a wealth of illustrations in the decisions of the courts of our own State in which recovery has been sustained on the character of policy here involved in harmony with the rule announced in the Barry case. Higgins v. Midland Casualty Co., 281 Ill. 431; Christ v. Pacific Mut. Life Ins. Co., 312 Ill. 525; Prehn v. Metropolitan Life Ins. Co., 267 Ill. App. 190; Hibbs v. United States Fidelity & Guaranty Co., 262 Ill. App. 279. Indeed what might seem at first blush to be disharmony in the decisions of our courts in cases of this character will be found to be differences in states of fact rather than in the application of principles of law.

It is next urged by appellant that in order for the jury to have arrived at its verdict it must do so by piling inference upon inference. We cannot agree with that contention, either by reason of the authorities cited or by the particular facts shown by the evidence in this case. In the case of Burns v. Prudential Ins. Co. of America, 283 Ill. App. 442, that question was raised under a state of facts which seems to us would be equally, if not more, susceptible of the application of that rule than in the case at bar. The court there said, “There is no such rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant’s gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. . . . In these and innumerable daily instances we build up inference upon inference and yet no court ever thought of forbidding' it. All departments of reasoning, all scientific work, every day’s life and every day’s trials, proceed upon such data. The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon.”

A similar rule was laid down in Devine v. Delano. 272 Ill. 166, and again in Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96.

But in this case it was not necessary for the jury to infer that the deceased sustained a strain by lifting a sack of cement, and that that strain caused the bursting of a blood vessel in his brain, which later produced a brain condition which subsequently caused an abscess in the brain, producing death. These matters are all shown by direct evidence in the record and by the legitimate inferences properly drawn from that evidence. It is shown without contradiction that the insured, who had always enjoyed good health and who was a strong and robust person, while attempting to lift a sack of cement suffered some impairment to the blood vessels of his brain. He suddenly fell and became paralyzed and unable to walk. He was immediately taken to a doctor, his paralysis persisted, and then within the course of a few hours he was conveyed from his home to a hospital, where he remained for 18 days in a state of almost constant, total disability. During the time that he was confined in the hospital, the evidence shows that his temperature gradually but constantly increased. The same condition was true with reference to his pulse. His sight was impaired from a normal vision on the 5th day of April to almost total blindness on the date of his death. An expert on diseases of the brain and nervous system testified, without contradiction, that the strain imposed upon the insured’s body was sufficient to cause a blood vessel in his brain to burst, and gave it as his opinion that that is what occurred in this case. He also testified, using the hospital records as a foundation, that this condition progressed from that day until the time of his death, and that about the 14th or 15th of April the brain abscess began to develop, as indicated by the changes in temperature and eye vision. The record is void of any evidence or any suggestion of any other cause or condition that might have caused his death. The evidence shows a complete chain of circumstances from the time insured left his home on that morning until the hour of his death. There is no intervention of time unaccounted for, and the jury was warranted in view of the facts proved and in the absence of any testimony as to any other cause of his death, to infer that the disability he sustained in attempting to lift the sack of cement in question was the proximate, sole and only cause of his death. Appellant has advanced no other theory. Appellee’s theory seems to be the reasonable and logical one.

. What has been said above, we think disposes of appellant’s final contention that the evidence, on the whole, did not warrant the court in submitting this case to the jury. To have taken this case from the jury would have been to ignore a chain of facts and circumstances which strongly tended to prove appellee’s case. In fact the facts and circumstances of the case tended so strongly to establish appellee’s case, that we do not feel that we would be justified in disturbing the jury’s verdict, much less to hold that the trial court erred in submitting the case to the jury.

We find no reversible error in this record. The judgment of the city court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gertrude Leahy et al., Appellants, v. Daniel W. Morris, Appellee.
    Opinion filed March 4, 1937.
    Ely & Derrick, of St. Louis, Mo., and J. D. Wilson, of Nokomis, for appellants.
    Farmer, Klingel & Baltz, of Belleville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

A short distance south of the government’s army field known as Scott Field in St. Clair county, Route No. 161 of the state system of durable hard surfaced roads, an east and west highway, intersects with another road of said system running north and south at that point. Owing to its proximity to Scott Field, this route is known as the Scott Field Road. As Route No. 161 approaches the Scott Field road at the point in question there is a “Y” formed, one branch going to the right, or northwest; the other branch going to the left, or southwest, — both running into the Scott Field Road.

About 4:30 o’clock in the afternoon of November 13, 1934, plaintiff Gertrude Leahy’s testate, Jeremiah J. Leahy, Gertrude Leahy his wife, and Helen Scarritt were driving from the east on route 161 in an automobile driven by the said Jeremiah J. Leahy and owned by Helen Scarritt. These are the three plaintiffs. As they approached the Scott Field Road and turned on the left wing of the “Y” to enter said road, Daniel W. Morris, defendant appellee, was traveling on the Scott Field Road in a northerly direction, coming from the south of where the Scarritt car was to enter the Scott Field Road. With Morris were his wife, his eight-year-old son and Leo Seyb, his wife’s brother.

Right of way has been given to the Scott Field Road over the south arm of Route No. 161, and the State, to give this notice, has placed the usual stop sign on the west side of this arm about 30 or 60 feet back or north from the point where it runs into. Scott Field Road. The State has also placed another sign on the north side of Route No. 161, about 400 feet east of Scott Field Road, which sign reads ‘1 Stop Sign Ahead. ’ ’

Both of these roads at this point are level, as is also the country around for more than a mile, and there is nothing to obstruct the view of a person traveling on either of these roads in any direction.

As the car driven by Jeremiah J. Leahy entered from the south wing of the “Y” in question, there was a collision between the car he was driving and the car driven by the defendant Morris. Jeremiah J. Leahy was killed, Gertrude Leahy was injured and Helen Scarritt’s car was damaged. Suits were brought for damages to the three plaintiffs growing out of this collision. The jury awarded damages as follows: $5,500 to Gertrude Leahy, executrix of the last will and testament of Jeremiah J. Leahy, deceased; $1,000 for plaintiff Gertrude Leahy, and $300 for plaintiff, Helen Scarritt.

At the close of plaintiffs’ evidence a motion was made by defendant to have the court direct a verdict in his favor. This motion was overruled. At the close of all the evidence a similar motion was made and overruled. After verdicts a motion was made for judgment non obstante veredicto and this was overruled by the court. Defendant filed a motion for new trial, and while other reasons were assigned, the one relied upon by the defendant was that the verdicts were each against the manifest weight of the evidence. The trial court allowed these motions and set aside and vacated the above verdict.

Appellants filed in this court their petition for leave to appeal from the order of the court granting a new trial in the cause under section 77 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 205; Jones Ill. Stats. Ann. 104.077. Petition was filed in this court during vacation and it was not acted upon immediately. By some error the usual briefs and arguments on appeal were filed in the case, and the case was noted for oral argument before the petition had been passed upon. That fact was called to our attention at the time of the oral argument, and we then decided that arguments might proceed and that we would hear the petition and the cause together. We have so considered this case.

The question before this court, as it was before the trial court, is whether the verdict is against the manifest weight of the evidence, so as to warrant the court in setting aside the verdicts. It is necessary to examine the evidence.

Plaintiff, Gertrude Leahy, testified she is the surviving widow and executrix of the estate of Jeremiah Leahy, deceased; that on November 17, 1934, she and her husband were traveling’ towards Belleville on highway 161; that they were driving along about 14 or 15 miles an hour; that there was a stop sign where highway 161 turns south to Scott Field Boad; that their car made a stop there; that after they pulled away from the stop sign she noticed a rumble and that is all she remembered. When she regained conscious ness she was in the hospital and her husband had been killed. She also testifies to her injuries and to the heirs of the estate. They were driving a 1932 Chevrolet owned by Helen Scarritt who was also riding with them. On cross-examination she testified that as she was approaching the intersection she was looking out of the window on the north side, taking in the scenery ; she had been looking out of the window as they were driving along and did not see the collision, nor did she see defendant’s machine until the collision. She had been looking out of the window for a distance of 600 or 800 feet. She was talking to her husband. Her husband was a careful driver. She did not see the machine stop, but she felt it. It was daylight at the time, about 4:20 in the afternoon; was a bright, sunshiny day, and countryside around there was perfectly level. There were no obstructions; there was no other traffic on the road except Mr. Willhelm’s truck back from the intersection. She did not know of her own knowledge whether her machine hit Morris’ car, or Morris’ machine hit theirs.

George Willhelm, witness for appellants, testified that he lives in Belleville; is a highway patrolman on section 24; that on the date in question, about four o’clock he delivered a check for wages to the Beaver boys at their home, which is about 1,200 feet from the intersection of Scott Field, east on 161. While he was there he saw a car pass, later learning it was the car in which plaintiffs were riding. It was going 15 or 20 miles an hour. He left after the car passed and went up the road towards Scott Field in the same direction the other car had gone. He followed the Leahy car and caught up with it. At the point of the accident he was from 200 to 250 feet behind the Leahy car. The Leahy car had crossed the black line of the Scott Field Road at the time of the collision, — all but the rear wheel, — that is, the center line. The witness testified that he saw another car going fast, — he doesn’t know how fast, but at least twice as fast as the Leahy car. The Morris car hit the Leahy car just in front of the driver’s seat, at the windshield column. The Morris car lifted up about two feet and struck the other, then dropped down and turned around. The Leahy car was forced off the road to the shoulder. The Morris car at the time of hitting this car was partly over the black line on a slant. It was on the west side of the black line of Scott Field Road. The Scott Field Road at that point is ,18 feet wide, and at the point of intersection there is additional road which comprises the curve of highway 161, making it four or five feet wider. The Leahy car after the accident was facing directly east, about 15 feet off the edge of the west side of the Scott Field Road. There was dirt that had fallen from the car on the west side of the black line. When he first saw the Morris car before the accident it was coming down the road about 40 feet from the scene of the accident. It was his judgment that the Leahy car was going five or ten miles an hour, coming away from the stop sign. He did not see it stop. After the accident both machines went over to the west side of the road; the Leahy machine was out in the field some distance, still on its wheels, and the Morris car about a foot off the concrete on the west side.

Clement Beaver testified that he arrived at the scene about five minutes after the accident; saw where the two cars collided. Leahy’s car was across the road in a field and the Morris car was on the slab with two wheels on and two wheels off the slab. Witness said he saw dirt from the Morris car below the Morris car, all on the west side of the black line. There was no dirt on the east side of the black line.

Irvin Beaver testified substantially as his brother Clement had testified.

Cyril Beaver testified to substantially the same.

Helen Scarritt, one of the plaintiffs, testified that she owned the Chevrolet involved in the accident.

George E. Smith, a State highway policeman, testified that he arrived at the scene about five o’clock; that there were parts of batteries and glass scattered over the highway there; also along the shoulder of the highway in front of Scott Field Road, which would be on the right hand shoulder on the west side of the black line, which is the center of Scott Field Road.

In the defendant’s evidence, Daniel W. Morris, called as a witness in the case of Gertrude Leahy and Helen Scarritt, testified that he is a sergeant of the radio section at Scott Field; that he was involved in the collision in question; was driving a 1934 Chevrolet coach; that his wife was in the front seat with him; that his brother-in-law, Leo Seyb, and his son were sitting in the rear; that he was driving on the east side of the road; was going north; that to the best of his knowledge the accident happened about 65 feet south of the stop sign at the intersection of route 161 and the Scott Field Road; that he was driving about 40 miles an hour; that he collided with the Leahy car, and first noticed it when it was just entering the south curve of route 161. When he first saw the Leahy car it was about 325 to 350 feet from the intersection, making a curve towards the south. The terrain was level and the day was clear; there were no obstructions to prevent anyone from seeing. He testified that the Leahy car was going from 50 to 55 miles an hour. As he was driving north he saw the Leahy car coming around the curve; he never paid any attention to it, thinking it would stop, or anything like that; just kept on g’oing about 40 miles an hour. As the witness approached the intersection he saw that it would be absolutely impossible for him to stop at the rate of speed he was going; that he was then about 45 or 50 feet from the point of contact; that he was on the right hand side of Scott Field Eoad, east of the black line; he applied his brakes, which were in good condition, and continued northwardly; that at the time he was 40 feet from the accident the Leahy car was passing the stop sign. The collision took place about 30 feet from where the concrete slabs join and north of the point where the black lines meet; he did not know what part of his car hit the Leahy car until he saw the picture; that he was watching the Leahy ear and also watching the road; that he saw the space out to the right of him and knew the road there was 38 or 40 feet wide; at the time he saw the Leahy car was not going to stop it was too late to make the curve; he didn’t know whether he slackened the speed of his car or not; thought he could have stopped his car under the conditions with the brakes in good conidtion in about 50 or 60 feet. He saw the Leahy car coming and got ready for the emergency after he was 40 feet from the point of contact. He saw the Leahy car 350 feet before it got to the stop sign and then they were 500 or 600 feet apart; that Leahy’s car was headed almost south at the time it came into the Scott Field Eoad and that both he and Leahy were in Scott Field Eoad when the accident happened. He did not think of following the curve around to avoid the accident and had no idea of an accident. He thought Leahy would obey the stop sign. He was under the impression that the Leahy car would stop and obey the stop sign and that was the reason he kept on going.

Mrs. Morris, wife of Daniel Morris, testified that she was sitting on the right of her husband; that her husband was driving north on Scott Field Eoad on the right hand side of the black line; that he was going 40 miles an hour; that the Leahy car came from the east, and she saw it as it was coming around the curve and estimated its speed at 50 miles an hour; that the Leahy car did not stop at the stop sign, nor did it slow down; there was an impact and she was rendered unconscious; she could feel her husband putting on his brakes; that the Leahy car came into Scott Field Eoad about 40 or 50 feet in front of the Morris car. She didn’t know whether her husband swerved to the right or left; didn’t know whether the Leahy car was on the west or east side of the black line, when the collision occurred.

Leo Seyb called for the defendant, testified that he was a brother of Mrs. Morris; that he was riding with them before the collision, sitting in the back seat; when he first saw the Leahy machine it was just beginning to round the curve from the stop sign; that he did not pay much attention to the Leahy car because he knew there was a stop sign. They proceeded further up the road when he noticed the Leahy car was not slowing down; that the Leahy car did not stop, nor did it slow down; that the Morris car was going about 40 miles an hour and the Leahy car was going faster.

Upon the above and foregoing facts the court on ruling on three separate motions held that the plaintiffs and plaintiff Gertrude Leahy’s testate were not guilty of negligence as a matter of law. We think the court rightly so held.

“Negligence does not become a question of law unless the evidence, which may be properly weighed upon the motion to direct a verdict, is such that all reasonable men would agree in their deductions from it, and if from the facts bearing upon the question of negligence reasonable men of fair understanding might draw different conclusions, the question is one of fact, not of law, and must be submitted to the jury. Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 632, 46 N. E. 1071; Hoehn v. Chicago, P. & St. L. Ry. Co., 152 Ill. 223, 38 N. E. 549; Petro v. Hines, 299 Ill. 236, at page 240, 132 N. E. 462; 18 A. L. R. 1106." Hicks v. Swift & Co., 285 Ill. App. 1.

This having been left as a question of fact for the jury the court must abide by the jury’s findings on that question.

This then leaves the question of defendant’s negligence to consider. The facts and circumstances above detailed seem to us to warrant the finding of the jury. There is direct testimony that plaintiff’s car was on the west side of the line of route 161 at the time of the collision. There are the circumstances of the mud and glass on the road which indicate that that is true. The position of the cars afterward lends support to that theory. The denials of fact made in this case are made by the people who were riding in defendant’s car, all of whom are interested in the outcome, and that testimony differs widely on other material facts. For example, the evidence fairly tends to show that the Leahy car was going from 5 to 15 miles an hour at the time of the collision, while those riding in defendant’s car place it as high as 55 miles.

There is no contention in this case except that the verdict was against the manifest weight of the evidence. Our courts have so often laid down the doctrine that verdicts will not be disturbed by courts unless they are in fact against the manifest weight of the evidence that it seems idle to cite those authorities again here. On this the case was submitted to the jury, properly instructed. The jury found the facts as juries must in all cases submitted to them, even though the line of demarkation between the conclusions which may be drawn from consideration of two sets of facts may be somewhat indefinite.

We are unable to agree with the trial court that this verdict is against the manifest weight of the evidence. It follows, therefore, that we are of the opinion that the trial court was in error in granting a new trial in this case.

The judgment of the circuit court is reversed and the cause remanded with instructions to that court to enter judgments on the verdicts.

jReversed and remanded with directions.


text:
    W. E. Knowles, Appellant, v. Ada S. Crow and Ada S. Crow, Administratrix of the Estate of George A. Crow, Deceased, Appellees.

      Opinion filed March 4, 1937.
    P. K. Johnson, of Belleville, for appellant, and W. E. Knowles, of East St. Louis, pro se.

    Kramer, Campbell, Costello & Wibohert, of East St. Louis, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of St. Clair county dismissing a creditor’s bill for want of equity. The bill was brought by W. E. Knowles, appellant, against Ada S. Crow, and Ada S. Crow, administratrix of the estate of George A. Crow, deceased, appellees.

The bill alleged that George A. Crow, deceased, was, in his lifetime, and at the date of his death, May 25, 1929, indebted to W. E. Knowles in the sum of $600, with interest at six per cent per annum from September 28, 1921, which indebtedness was evidenced by a promissory note dated June 30, 1921, payable 90 days after date; that Ada S. Crow was appointed administratrix of the estate of George A. Crow; that the claim of W. E. Knowles was allowed in the probate court of St. Clair county against the said estate in the sum of $913 on July 12, 1930; that no part of the award has been paid; and that the final report of the administratrix shows that there are no funds in the estate out of which to pay any part of the award.

The bill alleged that Ada S. Crow was the wife of Georg*e A. Crow, and that they resided together as husband and wife continuously for more than 15 years preceding the death of George A. Crow.-

It was alleged that on December 5, 1912, George A. Crow, being the owner of certain real estate of the value of $18,000 occupied by himself and his wife as a homestead, conveyed the real estate, his wife joining in the deed,: to a trustee for thé purpose of having the real estate reconveyed to George A. Crow and Ada S. Crow as joint tenants; that the trustee on the same day fulfilled the trust and reconveyed the real estate to George A. Crow and Ada S. Crow as joint tenants ; that both conveyances were made without any valuable consideration; and that after the conveyances George A. Crow and Ada S. Crow continued in possession of the premises as before.

It was further alleged that after the debt to complainant was incurred, George A. Crow, being insolvent except for his interest in the real estate as a joint tenant, made large payments for the upkeep of the premises and for taxes, insurance and improvements, the said expenditures for improvements amounting to $3,000.

It was further alleged that after the debt to complainant was incurred George A. Crow, being insolvent except for his interest in the real estate as a joint tenant, paid large sums of money for premiums on life insurance policies in which his wife, Ada S. Crow, was named beneficiary.

The bill further alleged that George A. Crow between the date the indebtedness was incurred and the date of his death occupied public office as a circuit judge, and for two years as a commissioner of the Supreme Court of Illinois; that during said time George A. Crow, being insolvent except for his interest in the real estate as a joint tenant, turned over to his' wife and without consideration, and as a gift, one-half of the salary received from both of the offices aforesaid ; and that during such time George A. Crow turned over to his wife “a large amount of other chattels and goods the exact nature and kinds of goods and chattels, being unknown.”

The bill also alleged that the transfers of property were not in writing and acknowledged and recorded in the same manner as chattel mortgages are required to be acknowledged and recorded under the statutes of the State of Illinois; and that the aforesaid transfers resulted in George A. Crow not retaining at the time of his death sufficient property to pay his debts and resulted in the enrichment of Ada S. Crow at the expense of complainant and the other creditors of George A. Crow.

The bill prayed for discovery of every transfer to and payment for the benefit of Ada S. Crow in respect to the matters alleged, and that a lien be decreed against the real estate for the amount due complainant.

The respondents, appellees, filed a general and special demurrer to the bill. The circuit court sustained the demurrer and dismissed the bill. Complainant, appellant, elected to stand by his pleading.

The law is well settled that no creditor has any right, in the absence of a lien, to complain that his debtor is giving away his property to his wife or children unless such creditor can establish the fact that the debtor has not retained sufficient property to satisfy existing debts. State Bank of Clinton v. Barnett, 250 Ill. 312. Where there is no actual fraud it is essential that the creditor allege and prove that the donor was insolvent at the time the conveyance was made. Ebers v. Reckenberg, 213 Ill. App. 454. An averment that George A. Crow’s estate was insolvent does not constitute an averment that George A. Crow was insolvent in the years preceding his death. Susman v. Susman, 251 Ill. App. 392. Insolvency signifies the financial condition of a, person whose entire estate if converted into money without unreasonable haste or sacrifice would not suffice to discharge his debts.

Applying these principles to the bill in this case we find no theory upon which it may be maintained that the transfer of real estate alleged in the bill constituted a fraud upon creditors. There is no allegation of the financial condition of the grantor at the time this transfer was made. There is not any indication of the indebtedness of George A. Crow in addition to that owed complainant. The allegation that George A. Crow was insolvent except for Ms interest in the real estate (which interest could of course be sold or levied upon) is simply an averment that George A. Crow was insolvent, except for $9,000.

The cases of National City Bank v. Cowdin, 257 Ill. App. 369; Wojtas v. Rachel, 267 Ill. App. 148, and McKey v. Cochran, 262 Ill. 376, cited by appellant, do not support appellant’s position. In the first case above the existence of debts previous to the conveyance, was shown. In the other two cases above a secret trust was shown to exist.

The summary' of the bill which we have set forth above clearly shows that the complete failure to allege insolvency permeated the bill and every transaction alleged in the bill.

The question is presented whether the payment of insurance premiums, and the payment of one-half of the salary earned by the decedent, the said payments not being set down in writing and recorded in the manner required in the case of chattel mortgages, constituted transfers which were void as to creditors, irrespective of the transferor’s solvency. "While it is the court’s view that the purpose of section 9, chapter 68, Illinois Revised Statutes (Ill. State Bar Stats. 1935, ch. 68, ¶ 9; Jones Ill. Stats. Ann. 64.09) is to prevent the defrauding of creditors throug'h reliance upon apparent ownership of tangible chattels, it is only necessary to decide here that the statute does not contemplate the impractical and unfair result here sought. The rule which appellant contends ought to be applied here would make the validity of every expenditure of a solvent man for the benefit of his wife wherever such expenditure resulted in financial benefit to her, contingent upon his leaving a solvent estate at his death.

There remains only the question of the sufficiency of the averment above set forth with respect to the transfer of “unknown” goods and chattels. The fact that a creditor’s bill entitles the complainant to the incidental relief of discovery, does not relieve complainant of the necessity of making definite allegations, of fact. That is a primary requirement of the rules of pleading. Babcock v. Chicago Rys. Co., 325 Ill. 16, on 35. Even gifts of necessary wearing apparel would be included in the averments of this bill.

The case of McCarthy v. Chicago Title and Trust Co., 264 Ill. App. 423, cited by appellant, is not similar to the one here presented. There the bill alleged the transfer to a particular person of a definite number of bonds of a definite issue. The amount and serial number of the bonds were given in the complaint in that case.

In our opinion the foregoing defects in the bill require us to sustain the action of the circuit court. It will not be necessary to consider the additional reasons given in support of the demurrer.

The decree of the circuit court of St. Clair county dismissing the bill for want of equity will be affirmed.

Affirmed.


author: Mr. Presiding Justice Store

text:
    Lelia Lewis et al., Appellants, v. The Continental Assurance Company et al., Appellees.

      Opinion filed March 4, 1937.
    Asa J. Wilboukr and C. S. Miller, of Mound City, for appellants.
    Store & Fowler, of Marion, for certain appellee; A. D. Stevers, of Springfield, of counsel.
    Floyd E. Harper, of Springfield, for certain other appellee.
   Mr. Presiding Justice Store

delivered the opinion of the court.

Appellants filed their complaint in chancery in the circuit court of Pulaski county, and afterwards, a first and second amended complaint. The cause came on to be heard upon motions to dismiss the second amended complaint.

The second amended complaint alleges the marriage of the assured Walker T. Lewis and Anna Lewis, one of the plaintiffs; the birth of this marriage of Lilia and Regina Lewis; that on the 23rd day of October, 1928, said Walker T. Lewis secured a divorce from Anna Lewis in the said county of Pulaski; that as a part of the settlement of property rights in connection with said divorce proceeding Walker T. Lewis and Anna Lewis agreed in writing that the said Walker T. Lewis “shall transfer of the insurance which he now carries the total amount of $4500.00 and make same payable to the above named daughters, share and share alike, and that the party of the first part shall transfer of the insurance which he is now carrying a total of $1500.00, which shall be made payable to his estate” and so forth.

The complaint further alleges that at the time of the execution of the foregoing agreement, Walker T. Lewis was an employee of the Central Illinois Public Service Company and had been for many years prior thereto and continued in such employ until the date of his death; that the said Central Illinois Public Service Company carried group insurance upon the said Lewis together with other employees; that in connection with such group insurance the life of said Walker T. Lewis was insured in the total sum of $6,000, which said amount of insurance had been carried and paid for by the said Walker T. Lewis prior to the execution of said agreement and was continued by him thereafter u}3 until the date of his death.

The complaint further alleges that in accordance with said agreement said Anna Lewis and Walker T. Lewis agreed that the beneficiaries in the said insurance to the amount of $4,500 should be transferred and changed to the name of each of the children substituted for the name of Anna Lewis therein, and that said Central Illinois Public Service Company was so notified and furnished a copy of said agreement.

That the said Central Illinois Public Service Company procured from the Continental Assurance Company a certain policy of insurance commonly called a group insurance policy, the exact terms and conditions of which group insurance policy are unknown to the plaintiffs, but that plaintiffs are informed and believe, and so state the fact to be, that such group insurance policy provides for the issuance of certain certificates by the said Central Illinois Public Service Company to its employees whereby, in accordance with the terms and conditions of such g*roup insurance policy and the certificates issued in conformity therewith, the lives of said employees of said Central Illinois Public Service Company were insured; that in connection with the said group insurance policy so carried by the Central Illinois Public Service Company with the defendant Continental Assurance Company, certain certificates of policies of insurance were issued by said Continental Assurance Company upon the request of said Central Illinois Public Service Company, upon the life of said Walker T. Lewis and delivered to him and at the time the said policies were issued both the Central Illinois Public Service Company and the Continental Assurance Company had full knowledge of the agreement above set forth, and that in accordance with the terms and conditions of such agreement, the plaintiffs Lilia Lewis and Regina Lewis should have been named in the said policies as the beneficiaries thereof.

That said policies were never turned over to plaintiffs ; that plaintiffs have been unable to get possession of them; that they affix Exhibit “A” as a form which they believe is the correct form of policies issued to the said Walker T. Lewis, except as to names and dates and so forth.

The complaint further alleges that Walker T. Lewis died in Missouri on the 18th day of March, 1934, while said policies were in full force and effect, leaving surviving him the defendant Edith Corzine Lewis, defendant, his wife, and the plaintiffs Lilia and Regina Lewis, his daughters.

That immediately after said death plaintiffs communicated with both the Central Illinois Public Service Company and the Continental Assurance Company and asked the said Continental Assurance Company for necessary blanks with which to make proofs of death on their behalf, and that said Continental Assurance Company replied that they had no record of insurance issued to the said Walker T. Lewis; that plaintiffs notified both defendants immediately after said death that they were claiming this insurance to the amount of $4,500; that both defendants had full knowledge of said contract; that notwithstanding said knowledge the said Continental Assurance Company did, under date of April 17, 1934, wrongfully and improperly pay over to the said Edith Corzine Lewis the amount of such insurance, $4,500, so due and payable to plaintiffs, without the knowledge or consent of the plaintiffs.

The complaint further alleges that Edith Corzine Lewis, the other defendant, had full knowledge of the existence of said contract, and that said insurance in equity and justice belonged to and was the property of these plaintiffs, and that she had no right to collect any part thereof', but conspiring- and conniving with certain officers and agents of the Central Illinois Public Service Company and the Continental Assurance Company, she unlawfully and wrongfully had her name substituted as beneficiary in said policies shortly before the death of said Walker T. Lewis, and unlawfully and wrongfully procured the payment of said insurance to her.

The complaint then prays that the Continental Assurance Company, its officers and agents, be required to make full disclosure as to what insurance policies had been issued by them on the life of the said Walker T. Lewis, what names were written in as beneficiaries thereof, together with complete form and condition of said policies; that in case any name appears therein except the names of plaintiffs Lilia Lewis and Regina Lewis, that .such insurance policies be reformed so as to show the correct name of said beneficiaries, and that the said defendant be required to pay to the said Lilia Lewis and Regina Lewis the sum of $4,500 in accordance with the terms, agreements and conditions of said insurance, and so forth.

To this second amended bill of complaint, defendants filed separate motions to dismiss on the ground that said amended complaint did not state a cause of action. Many other reasons are urged why this second amended complaint is insufficient. We shall examine this one which is common to all the motions.

The language of the contract between Walker T. Lewis and Anna Lewis is that Walker T. Lewis “shall transfer of the insurance which he now carries the total amount of $4500.00, and make same payable to the above named daughters, share and share alike.” There is no allegation anywhere in this complaint to the effect that the insurance there referred to is the same insurance which the said Walker T. Lewis carried at the time of his death. Even giving to said allegation in said complaint its reasonable intendments there is that specific allegation lacking. It is a well established rule, however, that the allegations in a pleading must be taken most strongly against the pleader, and by the application of that rule, instead of supplying the necessary needed allegations, the contrary is true, and the complaint with its exhibits shows upon its face that it is not the same insurance, and the dates of the exhibit bear that out. In a proceeding of this character courts may not assume, guess or take for granted an allegation without which a pleading cannot be maintained. It would have been easy to make this allegation. If the allegation is not true it would have been easy to say that the insurance was one and the same insurance and that by a system of procedure it was carried on from year to year by renewals, but was still the insurance which the said Walker T. Lewis carried at the time of his death. This allegation is not there, nor as said before is there anything which alleges that fact. It is true the complaint alleges that the defendant Central Illinois Public Service Company procured insurance on its employees from the other defendant, hut it does not say when, nor in what amount, nor what character of insurance was so procured.

We are of the opinion that this second amended complaint is lacking in substantial averments without which a cause of action cannot he based upon said complaint.

Having arrived at this judgment in the matter, it is unnecessary to discuss the other numerous objections to the complaint. If this is lacking, then the discovery asked for in the complaint could not avail plaintiffs, even were they such parties as were entitled to ask for discovery. This being true, the allegations of conspiracy, if they stated a ground of conspiracy, would still be an allegation in reference to insurance which the court cannot say was the insurance alluded to in the divorce contract.

As to the discovery, Ill. State Bar Stats. 1935, ch. 110, ¶ 186; Jones Ill. Stats. Ann. 104.058 (section 182, paragraph 2, Smith-Hurd Rev. Stat.), the Civil Practice Act provides for the listing of documents by the party in whose possession they may be, but that cannot be had based upon an allegation which is general and sweeping- and calls for something entirely indefinite in order that a party may see whether there is something upon which to base a cause of action. The cause of action must be stated first.

The record in this case shows that plaintiffs took ample time to amend the complaint again, but failed to do so. It is a fair assumption that they refused to amend knowingly and intentionally, with reasons which were sufficient to them. They elected to stand by the second amended complaint and brought this appeal.

The second amended complaint being in our judgment insufficient to state a cause of action, it follows that the trial court ruled correctly in dismissing it.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Columbus C. Van Horne, Appellee, v. Herbert L. Harford and George E. Wilkinson, Appellants.
    Opinion filed March 4, 1937.

      Green, Yerlie & Hoagland, of Alton, for certain appellant.
    O’Neill & O’Neill, of Alton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This case was before us before (280 Ill. App. 576), in which we reversed the judgment, holding that judgr ment taken in one court could not be revived in a court to which said judgment is transcripted.

The case comes here now on appeal from the city court of Alton, to which the cause was transferred after the aforesaid reversal. Judgment was had on a scire facias proceeding to revive a judgment of $980.41. When the case was filed, the defendants filed a plea of nul tiel record and insist here that that plea was good and is good as shown by this record, and the court erred in not sustaining the plea upon the record.

Plaintiffs offered in evidence plaintiffs’ Exhibit 1 and plaintiffs’ Exhibit 2, which are in substance as follows:

Plaintiff’s Exhibit 1.

“Judge’s Common Law Docket.

December Term 1913.

Columbus C. Yan Horne

vs.

Herbert L. Hareord and

George E. Wilkinson.

> Assumpsit.

“Dec. 10 Default; Dec. 12 Motion to set aside default; Dec. 15, Motion to set aside default denied; Dec. 18 damages assessed in favor of plaintiff and against defendant at Nine Hundred Eighty Dollars and Forty One Cents; judgment for plaintiff for that amount and costs; exceptions by defendants and appeal prayed to 4th District App. Ct. and allowed upon defts. filing bond in sum of $1,200.00 surety to be approved by clerk and bill of exceptions to be filed 40 days from date.”

Plaintiff’s Exhibit 2.

“Law Record B, Page 394.

Dec. Term, 1913.

Columbus C. Van Horne

vs.

Herbert L. Harford and

George E. Wilkinson.

> Assumpsit.

“Dec. 10th. Default; Dec. 12, motion to set aside default; Dec. 15, motion to set aside default denied; Dec. 18, Damages assessed in favor of plaintiff and against defendant at Nine Hundred Eighty Dollars and Forty One Cents, judgment for plaintiff for that amount and costs; exception by defendants and appeal prayed to 4th Dist. App. Court and allowed upon defendants filing bond in the sum of $1200.00 surety to be approved by clerk, bond and bill of exceptions to be filed 40 days from date.”

To sustain their position of nut tiel record defendants offered in evidence the judgment docket which had been kept by the city court of Alton for many years, but in lieu of the offer of this large record the parties stipulated as follows:

“Stipulation.

“It is stipulated and agreed, by and between the parties to this.cause, through their respective counsel, that the record identified as Defendant’s Exhibit A does not contain a record of any judgment in favor of Columbus C. Van Horne against Herbert L. Harford and George E. Wilkinson; that said exhibit does not disclose any record of a judgment such as is alleged to appear of record in the Writ of Scire Facias issued in this cause to revive a judgment.”

The trial court found the issues for the plaintiff and entered its judgment reviving the judgment as aforesaid. The defendants bring the record here on appeal.

On the authority of People v. Jarecki, 352 Ill. 207, we are of the opinion that there was a record of a judgment in the city court of Alton. Plaintiff’s Exhibits 1 and 2 show that. In the above case our Supreme Court said:

“A judgment at law becomes effective as soon as it is pronounced by the court. In the nature of things a judgment must be rendered before it can be entered. And not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor does its vitality remain in abeyance until it is put upon the record. The entry may be supplied, perhaps after the lapse of years, by an order nunc pro time. (Black on Judgments, sec. 106.) It dates from the time it was pronounced and not from the time it was entered upon the record by the clerk. (Chicago Great Western Railroad Co. v. Ashelford, 268 Ill. 87; Forest Preserve District v. Kean, 303 id. 293.) The rendition of the judgment is the act of the court and can ordinarily be proved only by the record. The judgment exists, however, from the time the court acts, even though it has not been formally written by the clerk. The statute contemplates that judgments, decrees and orders may not be immediately entered of record. (Smith’s Stat. 1931, chap. 25, secs. 14, 15.) Judicial notice is taken that the record is frequently not enrolled during the term at which an order is made or judgment rendered. (People v. Petit, 266 Ill. 628.)”

It would seem a harsh doctrine indeed for one to recover a judgment on a meritorious cause of action in a court which had authority to pronounce it and did so pronounce it, and then because of some clerical error or omission have the court’s action rendered void. The proper procedure is for the court to enter its minutes awarding judgment, for the clerk then to “write up” this judgment into expanded form in the permanent record, then place the statutory memoranda on the other book required to be kept, known as the “Judgment Docket.” The judgment docket, which is more or less of an index or memoranda, does not constitute the judgment. It is only abbreviations of the judgment. If one calls at the office of the clerk and asks for a certified copy of a certain judgment he does not get what is on the judgment and execution docket, but he gets what is on the permanent record. Under the evidence in this case we are of the opinion that the plea of nul tiel record cannot avail.

As to the “s” left off of the word “defendant,” it was held in West Chicago Street R. Co. v. Horne, 197 Ill. 250, and Zimmer v. Lyon & Healy, 190 Ill. App. 642, that such irregularity is wholly immaterial. If looking into the record the verdict can be seen to be responsive, it will be sustained.

We find no error in this record warranting its reversal. The judgment of the city court is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. F. Paul Baldwin, Plaintiff in Error.

      Opinion filed March 4, 1937.
    J. Boy Browning, of Chicago, and Lawrence A. Glenn, for plaintiff in error.
    C. Edgar White, State’s Attorney, and Orwin H. Pugh, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

The plaintiff in error, defendant below, F. Paul Baldwin, was convicted of violating the Illinois Securities Law, Ill. State Bar Stats. 1935, ch. 32, 254-296; Jones Ill. Stats. Ann. 13.01-13.54, on March 31, 1936, in a trial before the county court of Jackson county, trial by jury being waived, and sentenced to the Illinois State Farm at Vandalia, Illinois, for a period of six months and was sentenced to pay a fine of $1,000. The sentence provided that if the fine and costs be not paid at the expiration of the term of imprisonment, the defendant be confined at' the Illinois State Farm at Vandalia, Illinois, until such fine and costs be fully satisfied and discharged at the rate of $1.50 per day, or until the said defendant be otherwise discharged according to law. This writ of error is prosecuted to review that judgment and sentence.

This court reviewed a former judgment of conviction in this cause and reversed the judgment and remanded the cause. People v. Baldwin, 278 Ill. App. 327.

The information contained three counts. The first count charged that the defendant on January 22, 1930, in Jackson county, was the solicitor and agent for the Equitable Bond and Mortgage Company of Chicago, Illinois, and that the defendant unlawfully sold and offered for sale an interim certificate issued by the Equitable Bond and Mortgage Company for 80 shares of Class B and 20 shares of Class C of beneficial interest in the Old Colony Bealty Trust, to one Grace Perry, in violation of the Illinois Securities Law, in that the securities offered for sale and sold were defined as Class “D” securities, without the issuer of said securities having filed in the office of the Secretary of State the statement and documents required to be filed by the Illinois Securities Law.

The second count charged the same transaction and was in other respects the same except that the defendant was described as an agent, solicitor, and broker of the Equitable Bond and Mortgage Company instead of simply a solicitor and agent for the said company, as in the first count.

The third count charged the same transaction except that it charged a sale of the actual shares of beneficial interest in the Old Colony Bealty Trust instead of a sale of an interim certificate.

The evidence produced at the trial showed that the defendant had an office in Carbondale, Illinois, and was, among other things, engaged in selling securities for the Equitable Bond and Mortgage Company of Chicago, Illinois; and that one Carlos McKinney was employed by the defendant as a solicitor and agent in selling securities in December, 1929, and January, 1930. Carlos McKinney sold a first mortgage 6% per cent bond in the principal amount of $500 on property located at 180 West Washington street, Chicago, Illinois, to one Grace Perry. On January 22, 1930, about six weeks after she had purchased the above bond, Grace Perry, at the request of the defendant, traded the bond for an interim certificate for Old Colony Realty Trust shares. She testified that the defendant came to her house and told her that the bond had been called and gave her the interim certificate above referred to. She stated that the preliminary proof sheet describing the Old Colony Realty Trust shares had been shown to her by the defendant previous to the time he sold her the bond above described, but that it was not shown to her at the time of the exchange of the bond for the interim certificate aforesaid. The face of the interim certificate is as follows:

“United States of America Interim Certificate

No. 2766 ......Issued by...... 100 shares

Equitable Bond and Mortgage Co.

Safety

Conservation

Reliability.

Chicago, Ills., Jan. 22, 1930

“Upon the surrender of this certificate properly endorsed Equitable Bond & Mortgage Co. will deliver to Grace Perry or order 80 shares of Class B and 20 shares of Class C Beneficial Interest of Old Colony Realty Trust due optional with coupons attached representing all interest accruing thereon, from........... until maturity, when, if and as said securities are issued and delivered to Equitable Bond & Mortgage Co. When said securities have been received by Equitable Bond & Mortgage Co. and are ready for delivery, notice to that effect will be' transmitted to the above named holder hereof at his registered address.

“Equitable Bond & Mortgage Co.

(Signed) J. Marvin Austin, Treas.

Countersigned:

(Signed)

H. E. Christensen, Sec.”

The preliminary proof sheet describing the Old Colony Realty Trust shares (omitting* the financial statement), is as follows:

“Preliminary Proof No. 5 — Subject to Change.

“New Issue

“Securities in Class ‘D’ under the Illinois Securities Law. These are speculative securities.

Old Colony Realty Trust

(Not Inc.)

56,000 Class B Shares of Beneficial Interest.

31,100 Class C shares of Beneficial Interest.

“Mr. W. F. Roberts, Chairman of the Executive Committee of the Old Colony Realty Trust, has summarized his letter to us, as follows:

“History: Old Colony Realty Trust was organized on August 1,1929, for the purpose of acquiring the following nine properties: 73 East Elm Apartments, Richmond Apartments, Oxford Apartments, Tudor Manor Apartments, Beverly Crest Apartments, East-lawn Apartments, Union Court Apartments, Normal Villa Apartments, of Chicago, and the Southland Apartments of Louisville, Kentucky.

“Earnings: Old Colony Realty Trust has leased all of the above properties for a period of ten years to the Apartment Selection Service, Inc., an Illinois Corporation at an average annual net rental of $97,500 payable monthly in advance. Under the terms of this lease the Apartment Selection Service, Inc., is obligated to pay all operating expenses including Beal Estate Taxes and Interest on First Mortgage bonds.

“Capitalization: A consolidated Balance Sheet of the Old Colony Realty Trust after giving effect to the acquisition of above properties, the sale of $620,000 6% Refunding Convertible Mortgage Sinking Fund Cold Bonds, and the sale of 56,000 Class B shares of Beneficial Interest and 31,100 Class C shares of Beneficial Interest and the refunding of all First Mortgage Bonds maturing prior to December 31, 1933, may be summarized as follows:

(Here followed an assumed balance sheet.)

“In view of the high character of the properties acquired by the Trust, it is expected to derive large profits from the appreciation in the value of the properties, which appreciation would further enhance the value of these shares.

“Management: Old Colony Realty Trust will be managed by an Executive Committee of Mr. W. F. Roberts, Mr. F. M. Austin and Mr. H. W. Bye, attorney associated with Litsinger, Healy & Reid. All of the properties which have been acquired by the Old Colony Realty Trust with the exception of the Southland Apartments at Louisville, Kentucky, are located in the finest residential neighborhoods in Chicago. These buildings have enjoyed a splendid occupancy due to their expert management and the co-operative advertising campaigns which have been appearing in daily newspapers during the past two years.

“The Southland Apartments are located in one of the finest residential districts of Louisville, Ky. within a mile and a half from the center of the downtown business district.

“These apartment properties have attained the enviable reputation of being one of the best managed chain of Apartment Properties in- the United States.

2 Shares Class B

Price

$15.00 per Unit

1 Share Class C

When, as and if issued and received by us.

“All legal matters pertaining to this issue have been passed on by Litsinger, Healy & Reid, Attorneys for the Trust.

Equitable Bond & Mortgage Company

Equitable Building, Equitable Life & Casualty

180 West Washington Bldg.

Street, Fourth and Market

Chicago, Illinois. Streets,

Louisville, Kentucky. ’ ’

Carlos McKinney testified that the preliminary proof sheet was used by Mr. Baldwin, the defendant, and Mr. McKinney in the selling* of the securities in question. He stated that it was distributed and used for explaining the security behind the investment.

Other witnesses testified that they had purchased interim certificates for the same proposed issue as the one sold to Grace Perry.

The defendant did not testify.

On the former appeal above referred to, this court reversed the former judgment of conviction for the reason that the defendant was found guilty as to each of the three counts of the information and was separately sentenced as to each count of the information. The court found that the proof which would sustain the averment of the sale of an interim certificate would not support the averment of a sale of the actual shares of Old Colony Realty Trust. On the second trial, the judgment, from which this writ of error was prosecuted, was based upon the finding of the court that the defendant was guilty in the manner and form as charged in the information. The single sentence above referred to was imposed by the court.

The plaintiff in error contends that the finding of the court that the defendant was guilty in the manner and form as charged in the information amounts to a finding of guilt upon each of the counts of the information. Consequently, he takes the position that the. second judgment of conviction was equally erroneous .with the first under the holding of this court on the former appeal. We think this contention is unsound. Where the offenses charged are of the same grade and carry the same punishment or where the single transaction is averred in different forms in different counts charging the same crime, although the averments as to the manner in which the crime was committed are not consistent with one another, a general verdict of guilty will be supported by proof of the commission of the crime in the manner and form charged in any one of the counts. So in People v. Hein, 315 Ill. 76, where it was alleged in one count that a burglary had been committed forcibly and in the nighttime and in another count it was alleged to have been committed without force and no reference was made as to the time of day, the court held that a general verdict of guilty might be referred to either count of the indictment. Tobin v. People, 104 Ill. 565, cited by the plaintiff in error, is not in point for the reason that the separate counts there charged larceny, robbery, and receiving stolen property, which are offenses of different grades and carrying different punishment. The case of People v. Schuster, 339 Ill. 73, is inapplicable for the same reason. We find nothing in Armstrong v. People, 37 Ill. 459; People v. Fitzgerald, 297 Ill. 264; Townsend v. People, 4 Ill. 326; Holliday v. People, 9 Ill. 111; and Curtis v. People, 1 Ill. 256, to interfere with this result.

No different principles should be applied in the case of a trial before the court than that applied in the case of a trial by jury. Had the defendant presented a motion to the court requesting a separate finding as to each count, no doubt such a finding would have been obtained.

The defendant complains of the form of the sentence. It is contended that the court is without power to sentence the defendant as above recited. While the sentence did not follow the language of the statute, it appears that the error was in the defendant’s favor and that the defendant is not in a position to complain of the sentence. Berkenfield v. People, 191 Ill. 272, on pages 276-8. This court is obliged to follow that decision of the Supreme Court of Illinois rather than the decision of the Appellate Court for the Second District of Illinois in the similar case of People v. Herman, 245 Ill. App. 94.

The defendant contends that the proof fails to show that the securities sold are defined as Class D securities under the Illinois Securities Law. The burden is upon the People to prove beyond a reasonable doubt that the securities sold were Class D securities. People v. Johnson, 355 Ill. 380. This proof may be made either by a showing that the securities were Class D securities or by a showing that they were not in Class A, B, or C. The securities were obviously not Class A securities or Class B securities. Except for People’s Exhibit 3 (the preliminary proof sheet above referred to), and the testimony of Carlos McKinney with respect thereto, there might very well have been a doubt whether the securities could be defined as Class C securities. The question is a mixed question of law and fact. The determination of Class C securities involved a knowledge of the facts concerning the existence of the borrower, the earnings of the borrower, and the value of the property of the borrower. These are facts which it is reasonable to assume the agent and solieitor would know. While the evidence appears to show that the preliminary proof sheet was not shown to Grace Perry at the time the particular interim certificate in question was sold, the evidence clearly demonstrates that the defendant used this proof sheet in selling interim certificates for this issue of shares in this trust, and that this proof sheet was shown to Grace Perry previous to the time of the sale of this interim certificate. The court admitted this proof sheet in evidence for the purpose of characterizing the nature of the securities sold. It is clear that the use of this pamphlet in the sale of these securities amounted to a representation by the defendant that the facts contained in the pamphlet were true. Consequently, the court could well have found that the defendant admitted in making the sales of these securities, that they were in Class D securities. Since the statement that the securities were Class D securities under the Illinois Securities Law appears at the beginning of the pamphlet, there was evidence to support a finding that the securities were Class D securities, and that the defendant knew that they were Class D securities.

The defendant contends that there is a fatal variance between the allegations in the information and the proof in the record, in that the certificate of the secretary of state of noncompliance with section 9 of the Illinois Securities Law, Ill. State Bar Stats. 1935, ch. 32, ii 262; Jones Ill. Stats. Ann. 13.12, by Old Colony Realty Trust, or anyone for it, varies from the allegation of the information that the securities sold by the defendant were issued by the Equitable Bond and Mortgage Company of Chicago without compliance by the Equitable Mortgage. Company with the Illinois Securities Law. We think that the certificate to the effect that the required statements had not been filed “either by, for or on behalf of the Old Colony Realty Trust” sufficiently excludes any possibility that Old Colony Realty Trust shares had been qualified by anyone. We do not think that the certificates leave open the possibility that the Equitable Bond and Mortgage Company had qualified the shares.

Our view of the sufficiency of the finding of the court that the defendant is guilty in the manner and form as charg’ed in the information also disposes of the contention of the defendant that the defendant could not be both an “agent and solicitor” as charged in the first count, and a “broker” as charged in the second count of the information. In our opinion, the evidence fully supports a conviction upon the first count of the information. We find no substantial error in the record. The judgment of the county court of Jackson county will be affirmed.

Affirmed.


text:
    Hilda Rembke, Appellee, v. Henry Bieser, Appellant.

      Opinion filed March 4, 1937.
    Wheeler, Oehmke & Dunham, of East St. Louis, for appellant.
    Philip G-. Listeman and John M. Karns, both of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On Sunday, December 8, 1935, about one o’clock in the morning, plaintiff appellee, who will hereafter be referred to as plaintiff, and defendant appellant, who will hereafter be referred to as defendant, together with another couple, James Ardit and Vera O’Dell, started from Bast St. Louis, from a place known as the Egyptian Inn, to go to a resort known as the Villa Europa, which is south of East St. Louis and north of Dupo. It was a drizzly morning, the road was slippery, and as the parties proceeded southward they encountered dense banks of fog. This fog rendered progress very difficult. Plaintiff and defendant were sitting in, the front seat together, and Mr. Ardit and Miss 0 ’Dell were sitting in the rear seat. -It was defendant’s car, a V-8 Tudor sedan, which he himself was driving. The road runs almost straight south from East St. Louis and is known as No. 3 of the State system of durable hard-surfaced roads. It is an 18-foot slab. The farther south the parties traveled, the more dense the fog became and the more difficult the progress.

At a distance of something like a mile and a half from East St. Louis the car in which defendant was driving came into collision with a large Auburn car, which weighed about 1,800 pounds more than defendant’s car. Serious injuries followed. The driver of the Auburn was killed; others in the respective cars were injured, and plaintiff received serious and permanent injuries. She was taken to a hospital where she received treatment. The nature and extent of her injuries are not of great consequence so far as this case is concerned, for there is no complaint that the damages assessed and finally allowed by the court are excessive.

Plaintiff brought suit against defendant under what is known in our State as the “guest law.” In her amended complaint, upon which this case was tried, she alleged among other things as follows:

“The defendant in violation of his duties and obligations to the plaintiff, willfully and wantonly and with a conscious indifference and disregard to her safety and well being, drove and operated his automobile over said roadway between the hours of sunset and sunrise when said automobile was displaying no light on the front thereof, or was displaying lights that were not visible at least 500 feet in the direction in which the automobile was proceeding, and he drove his automobile at a high and dangerous rate of speed, to wit, 45 miles per hour, which was a greater rate of speed than was reasonable and proper having regard to the conditions immediately surrounding said roadway, and he caused his automobile to be driven upon the left half of said highway and at all times failed and omitted to keep a proper lookout ahead for automobiles that reasonably could have been expected to be and remain on said roadway, and continued to drive and operate his automobile when his vision ahead was • greatly obstructed and impaired and when he was not looking in the direction in which his automobile was traveling, and in all respects operated his automobile in a willful and wanton manner, showing an utter disregard for plaintiff’s safety, and under circumstances which he well knew, or by the exercise of any care should have known, would likely cause great bodily injuries and danger to the plaintiff. ’ ’

Defendant denied all allegations of the complaint and alleged as an affirmative defense that if defendant was guilty of wilful and wanton negligence in the premises that plaintiff was also guilty of wilful and wanton conduct which would prevent recovery upon her part.

The suit was brought in the city court of East St. Louis. A trial was had upon the foregoing pleadings and a verdict rendered in favor of plaintiff in the sum of $9,500. Seasonable motions were made for directed verdict, new trial, and for judgment notwithstanding the verdict. All of these were overruled by the trial court, and after ordering plaintiff to remit the sum of $2,000, the court entered judgment in the sum of $7,500.

From this judgment defendant has appealed to this court and alleges that the verdict and judgment are contrary to the law; that they are against the manifest weight of the evidence in the case; that the court erred in not allowing defendant’s motion to dismiss, or to transfer the case, and erred in not directing a verdict in favor of the defendant, and denying his motion for judgment notwithstanding the verdict and in refusing to award him a new trial.

We shall first take up the question of the jurisdiction of the court. Ill. State Bar Stats. 1935, ch. 110, If 135; Jones Ill. Stats. Ann. 104.007 (sec. 131 of ch. 110, Smith-Hurd Rev. Stat.) provides:

“Except as otherwise provided in this Act, every civil action shall be commenced in the county where one or more defendants reside or in which the transaction or some part thereof occurred out of which the cause of action arose.”

The collision in this case out of which the action arose occurred in St. Clair county, East St. Louis is in -St. Clair county, and necessarily the city court of East St. Louis is in St. Clair county. Service on defendant was had within the corporate limits of East St. Louis. We know of no rule which prevents service on a defendant in the county where some part of the transaction occurs, if defendant is found in said county. It cannot be said that it is necessary to send process to the county in which defendant resides, when the court has jurisdiction by virtue of the cause of action arising in the county which is the situs of such court. Bather, we think, the right given by the act is an expedient to insure service on the defendant in the county where he resides if such service cannot be had in the county in which the action arose. To argue otherwise would be to say that such defendant by coming into the county where the cause of action arose and remaining there could prevent service on him entirely. We are of the opinion that this act provides two places where a defendant may be sued and where he may be served. This being true, a defendant may be sued and served within and by any of the courts of the county which are given jurisdiction by reason of the accrual of the cause of action when he is found in such jurisdiction. Actions ex delicto for injuries to the person are transitory and may be brought within a jurisdiction other than that within which such injuries occurred. Bruggemann v. Young, 208 Ill. 181; Swanson v. Moline, Rock Island & Eastern Traction Co., 204 Ill. App. 144, and cases there cited. The trial court did not err in retaining jurisdiction of this cause.

The chief contention of the defendant is that the verdict in this case is against the manifest weight of the evidence. On this contention our attention is called to the case of Baumeister v. Bowers, 271 Ill. App. 332. A glance at that case will show that it clearly comes within the exception which warrants courts in setting aside verdicts because they are against the manifest weight of the evidence. In that case appellee had no corroboration; she was contradicted on all points by the appellant and the circumstances favored the story told by appellant. That case has nothing in common with the case at bar.

In this case plaintiff testified that she started out that evening with defendant; went to a place called English Inn in East St. Louis and stayed there, about an hour when she told him she wanted to go home. Instead he took her to Egyptian Inn, promising her thereafter to take her home. They stayed at this place for a while where they met Vera O’Dell and the boy who was with her. When they came out of this place she asked defendant to take her home. He dissuaded her. They all then got into the car, she sitting on the right hand side of defendant and the other couple in the back seat. She did not know where they were going, but found that they intended to go to Villa Europa. It was misting when they started out. The pavement was damp and slippery. As they proceeded defendant drove his automobile on and off the road and would swing and go over the black line. They ran into banks of fog. She cautioned defendant about turning around and going back. He said, “We are making it all rig’ht.” She told him two or three times to turn around and go back and not continue in the fog. About 300 to 500 feet from where the injury occurred he made an effort to turn around by turning in a driveway, but instead of going back home, started down the road the same way. Again she cautioned him. He didn’t always have lights burning on the automobile. She told him they would be killed. They passed an automobile 200 or 250 feet north of the place where the collision took place. The fog was light at the time; it got thicker as they drove on at the same speed. The fog got deeper until she could see only about 20 feet ahead. He still insisted that he would make it all right. They ran up to another car going in the same direction. She cautioned him to stay behind it, but he turned out anyhow. He got about 10 feet from the back of that car. He didn’t decrease his speed any from the time he passed the first car. At the place where this accident happened the fog was very dense. She asked him not to go around that car because another car might be coming. Ton could see nothing in the fog. “He told me he couldn’t see and I asked him leave to drive, but he said he would drive the car.”

Florence Pool who was riding in the Auburn car said that she saw defendant’s car when it was 18 to 20 feet away. “Almost all but the right back wheel was on our side of the street. When the cars came together our car was still on the east side. It was very foggy when we started and kept getting worse. I saw the Bieser car just before the impact and it looked like it was coming pretty fast. It was coming at a greater speed than our car.”

Boyd Schrader testified that as he was going south on the same road, there was a fog at times in which you couldn’t see a tiling. The fog got worse the further south he went. The Ford passed his car going south 200 or 300 feet from where the collision occurred. “We had just come out of a bank of fog and gone into a small patch of it when the Bieser car passed us. It must have been around 75 to 100 feet before the car got out of our sight.” As far as he could see it was still on the left side of the road, getting back over to the right side. It was not going straight; it was weaving. It was going around 35 to 40 miles an hour. He continued south and heard the sound of an impact after this car got out of sight. It couldn’t have been very long. “We were following right behind him. When we got to the wreck the Auburn was parallel with the black line and on the east side. Half of the front of the Ford was over on the black line on the east side. Brady Brockes (the driver of the Auburn) was lying with his feet on the running board of his machine. His head and shoulders were west of the black line.”

Ada Cannady testified that at the time of the collision the Auburn in which she was riding was on the east side of the road.

Theodore Kirk testified that he talked with defendant a couple of days after the accident happened at the hospital; that defendant told him it was a foggy, bad night. He was going down the highway towards Dupo and all at once he ran upon an automobile; he turned out to go around it and as he turned out is when the accident happened. He said it was his fault and he was sorry.

Ralph Lamont testified that when he observed the cars the Ford was headed south with its left front wheel about a foot east of the black line and the rest of the car west of the center.

Fred Rembke, the father of the plaintiff, testified that he talked to defendant about the accident three or four days after it happened; that defendant said “I am sorry, but it was all my fault.”

An examination of plaintiff’s Exhibit 1 shows clearly an impact effecting defendant’s car from the middle of the engine to the right front side. This is the side which would naturally be farthest west of the black line if it happened where defendant contends that it did.

This evidence is set out at length in pursuance of the contention of defendant that the court erred in not giving a peremptory instruction in the case. The court could not lawfully under any hypothesis known to us have given this instruction. Courts may not weigh the evidence on a motion for peremptory instruction. It was a question of fact for the jury whether the conduct of defendant was wanton or wilful.

In addition to the facts presented above it may be observed that the driving of an automobile in a fog such as the one described in this record is one of the most hazardous things that any driver can do. Anyone who has ever undertaken to drive a car in such a fog will not argue that question. For a driver of a car to turn out to pass another car at the rate of 35 or 40 miles an hour in such a fog under the protest of his guest might well show a reckless disregard for the safety, life and limb of his said guest. It is wanton and wilful in' our judgment within the definitions given by the courts. The court did not err in refusing the peremptory instruction at the close of plaintiff’s evidence, nor at the close of all the evidence.

It is true that there are sharp contradictions as to many of the facts testified to and there are different versions by the different witnesses, as to the positions of the cars and as to what happened and as to what was said by plaintiff during the time they were driving south. But are we to say after the jury has passed upon all the evidence that the witnesses for the defendant were telling the truth or were not mistaken and that the witnesses for the plaintiff were either telling untruths or were mistaken? We are at a loss to see how counsel can so contend. This record, in our judgment, was a case distinctly for a jury to decide.

It is argued at great length that plaintiff’s testimony is contradicted by previous statements she made at the coroner’s inquest and by a statement she made in the hospital. We said in Acquaviva v. Madison County Mut. Auto. Ins. Co., 285 Ill. App. 431 at 436, and we repeat here, that contradiction or impeachment does not go to the question of the competency of any witness, but only goes to his credibility. So that if the jury believed plaintiff’s testimony, corroborated as it is by the facts and circumstances above detailed, the jury was within its rights in doing so. Furthermore, the circumstances of obtaining the statement at the hospital might have much to do in influencing the jury to believe the testimony of the plaintiff.

In view of the evidence above detailed, notwithstanding the contradictions referred to, and the verdict of the jury, we are constrained to say that the propositions of law which defendant has argued, while proper when applied to a proper state of facts, do not apply here. A glance at the conduct of defendant under the circumstances detailed in this record immediately raises the impression that his conduct was wanton and wilfnl in the sense that he acted in ntter disregard of the safety of those for whom he was temporarily responsible. The conduct of plaintiff was, likewise, a question of fact for the jury.

It would be idle to write at any length again on the well established rule that Appellate Courts will not set aside verdicts on questions of fact unless said verdicts are against the manifest weight of the evidence. However, the rule is so definitely laid down in the case of People v. Hanisch, 361 Ill. 465, that we feel warranted in calling attention to it again. The Supreme Court there said:

“Whatever may be the rule in certain other jurisdictions, we firmly adhere to our often-asserted belief that it is the province of the jury, alone, to determine the weight of the evidence and the credibility of the witnesses. If it were not so there would be little use for the jury system. The jury as a fact finding body is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts, but by the reviewing courts to uphold the sanctity of the trial by jury.”

We find no error in this record. The judgment of the city court is affirmed.

Judgment affirmed.