author: Mr. Presiding Justice

text:
    Augusta Bush, Appellee, v. Frank Bush, Appellant.
    Gen. No. 9,350.

      Heard in this court at the October term, 1942.
    Opinion filed November 4, 1942.
    James S. Baldwin, of Decatur, for appellant.
    James E. Henson and Robert N. Patterson, both of Decatur, for appellee.
   Mr. Presiding Justice

Riess delivered the opinion of the court.

Defendant Frank Bush has appealed to this court from certain decretal orders of the circuit court of Macon co'unty, entering judgment against him for nonpayment of the amount found to be due under the terms of a decree for alimony pendente lite and granting prayer of complaint for separate maintenance, solicitor’s fees and costs to the plaintiff appellee, Augusta Bush, on final hearing of said cause.

Plaintiff appellee, Augusta Bush, had filed suit in equity in the circuit court of said county, against said defendant appellant, Frank Bush, her husband, seeking a decree for separate maintenance for herself and incompetent daughter, Esther Bush, aged 22 years, then residing with the plaintiff in the city of Decatur. The complaint in substance alleged the lawful marriage of the parties in 1908 and the subsequent birth of four children, all of whom are of age; that during the five years preceding the suit, defendant pursued a morose, hostile and wrongful course of conduct toward plaintiff; that on three specific occasions set forth in the complaint in April, May and July, 1939, the defendant struck, beat and bruised plaintiff with his fists, without reason or provocation, and on July 12, 1939, removed their household furnishings in a van without plaintiff’s previous knowledge or consent and against her will, from their home which was then located adjacent to a tavern operated by them near Decatur, to a certain dwelling house in Decatur, and thereafter lived separate and apart from plaintiff and said daughter without fault of plaintiff; that defendant paid one month’s rent of $22.50 for the newly rented dwelling house; that plaintiff’s sole income was the rental of $36 per month from property owned by her and that defendant was able-bodied and received income of $2,000 a year from the IT. S. Government for trucking mails to and from the post'office and railway stations in Decatur, and also received certain income from rentals and management of the above tavern and adjacent residence. The complaint prayed for a decree of separate maintenance for herself and incompetent daughter and for allowance of solicitor’s fees- and costs.

Defendant, in his answer, denied the acts of neglect and cruelty alleged; denied that plaintiff had done the family cooking and cared for their home or assisted in working.in the tavern as alleged and averred that she had failed and neglected so to do or perform other marital duties; that she was high-tempered and quarrelsome, had attacked and made threats to poison him and that their separation was due to her misconduct.

A verified petition for temporary alimony was also filed by plaintiff, and upon hearing of the latter on July 16, 1939, a decree was entered ordering the defendant to pay to the plaintiff until further order of court, the sum of $40 per month and $22.50 to cover rental of dwelling house to which they had been removed by defendant, together with $25 solicitor’s fees; the order reading for the support of plaintiff and “two” daughters — another daughter then living at home and of age was subsequently married. For default in making such payments, defendant was thereafter cited into court on two occasions to. show cause why he should not be punished for contempt of court for such failure. At the first hearing, he was found to be in arrears in the sum of $342.50 and paid same on March 13, 1940. Later, he was again found and decreed to be delinquent in the accrued sum of $320 due to November 7,1940, but was purged of wilful contempt for such failure, and on his petition therefor, the future payments of temporary alimony were reduced by the chancellor then presiding to whom the defendant had taken the cause by change of venue, to $20 per month plus amount of said rental payments of $22.50 per month, viz: $42.50. Judgment was entered for the $320 conceded to be in arrears, which defendant had asked to be remitted, this motion being denied. On December 31, 1941, the cause having been heard on its merits on December 10th and taken under advisement, a decree for separate maintenance was entered as prayed and defendant was ordered to pay $20 per month and said $22.50 dwelling house rentals being a total of $42.50 until further order of court and to pay $125 solicitor’s fees in $15 monthly instalments and costs of suit; the solicitor’s fees were to be paid to plaintiff’s counsel.

Upon appeal from said orders, defendant has assigned reversible error in entry of an order for temporary alimony, in finding lawfully due and unpaid thereunder the sum of $320 and entering judgment against defendant therefor, in the admission and exclusion of certain testimony, in overruling defendant’s motions to dismiss the suit for want of equity and in entering decree for separate maintenance and solicitor’s fees and costs.

Proof of the material allegations of plaintiff’s complaint concerning her treatment by defendant and of her own conduct prior to July 12, 1939 was offered by plaintiff and certain corroborating witnesses and was denied by defendant and his witnesses. On this sharp conflict in the testimony as to the conduct of the respective parties, as alleged or denied in the pleadings, the court found the issues in favor of the plaintiff and that the parties were living apart through no fault on the part of plaintiff; that the plaintiff had properly conducted herself as the wife of the defendant; that defendant is a strong, healthy man, well able and capable of supporting plaintiff and said daughter Esther, as prayed in petition and is now employed in gainful occupation, as recited in the evidence and decree of the lower court. The record clearly shows that the defendant moved the plaintiff to a separate house and continued to live apart from her thereafter.

Considerable testimony was heard as to the income of defendant, the several changes in title to the tavern property and the conduct, income and expenses of such business, and also concerning the $275 per month conceded to have been regularly paid to the defendant under his contract for carrying mail, and the incidental expense of procuring and operating mail trucks, which tended on behalf of defendant to show that the expenses thereof exceeded the income. There was some conflict in relation thereto by testimony of the former partner of defendant under the mail contract and some discrepancy as to certain expenditures. Among credits so claimed by the defendant was $10 per week and certain additional incidentals for his own support while maintaining himself separate and apart from his family, which exceeded in amount the $42.50 monthly allowance of the court toward the support of his family. The daughter Esther was shown to have previously been an inmate of the Lincoln State School for feeble-minded persons and was found by the chancellor to be unable to contribute to her own support and to be dependent on her parents for support and maintenance. The defendant testified concerning the removal of his family that (Abst. of Rec. 75) “I did not kick them out, I moved them out. I have not invited them back. I am not willing to move the Prells out and have my wife and daughter live with me. I do not want them around. I supported them up to now. I supported them because the court forced on me.” From the whole of the evidence, the chancellor below who heard the cause upon its merits was in a better position than the court of review to observe the witnesses, their demeanor on the stand, their bias or prejudices, if any, and the probative value, reasonableness and weight of their testimony in so far as the same was conflicting, and to pass upon their respective contentions in relation thereto. Johnson v. Johnson, 125 Ill. 510,16 N. E. 891. Whether temporary alimony should be allowed, and, if so, how much, are questions resting in the sound judicial discretion of the trial court in view of the conditions and circumstances of each case, and an abuse of the discretion is necessarily subject to review. Unless, however, there is clearly an abuse of the discretion, the decree will not ordinarily be disturbed on appeal. Cooper v. Cooper, 185 Ill. 163, 56 N. E. 1059; Harding v. Harding, 144 Ill. 588, 32 N. E. 206. In fixing the amount of the temporary alimony to be allowed pending the suit, it is aptly said in McAdams v. McAdams, 267 Ill. App. 124, at page 129, that “We think the cases establish that where the suit of the wife is prosecuted in good faith, the amount of alimony to be allowed pending the suit shall be controlled, first, by the necessities of the wife as shown by the circumstances, and second, by the financial ability of the husband to make the necessary contribution to the end that in the prosecution of her suit she shall be placed upon an equality with him. That the amount is not limited solely by the income, but that the amount of property possessed may be taken into consideration, see Low v. Low, 133 Ill. App. 613; and that this court upon review will refuse to set aside the order of the chancellor, except for abuse of discretion, see Harding v. Harding, 144 Ill. 588; Cooper v. Cooper, 185 Ill. 163; Low v. Low, supra; and Longhi v. Longhi, 193 Ill. App. 21.”

Both the complaint and the petition for temporary alimony prayed for an allowance for the separate maintenance of the plaintiff wife and for the support of the daughter Esther, whose incapacity to support herself was expressly set forth, and also asked for money and solicitor’s fees “according to the statute in such case made and provided.” No prayer was made for the support of the second daughter. In the examination of plaintiff, she was questioned by her counsel as to how much she deemed necessary for the support of herself and two children. She stated that her grocery bill ran $9 per week — and later — about $10 per week, which was exclusive of light, fuel, clothing and the other mentioned expenses necessary to conduct her separate household. It also appears that the second daughter, subsequently married, had prior thereto contributed toward expenses of the household. The plaintiff also used her $36 or $38 per month, rental income, less certain expenses incident thereto, toward the maintenance of the dwelling house to which defendant had removed his family. While the order for the allowance of temporary alimony referred to the plaintiff and their “two” daughters, and provided an allowance of $40 per month and for payment of the dwelling house rent, such house rent was in any event a fixed sum which had been arranged for in advance by the defendant. The additional allowance of $40 per month, when considered in the light of the facts and circumstances appearing in the testimony, the condition and necessities of the wife and feeble-minded child and the financial status and income of the respective parties, was in our opinion neither contrary to the manifest weight of the evidence nor an abuse of the chancellor’s discretionary powers under the terms and provisions of the cited statutes. Defendant, partly in compliance Avith said order, and partly after citation for alleged contempt, paid all of said amounts accruing from date of the order on July 16, 1939 to November 7,1940, except $320 which was found and adjudged to be in arrears at that time. We hold that the use of the word “two” in the decree in view of the pleadings, was a harmless error and did not adversely affect the substantial rights of the defendant under the eAddence heard by the chancellor. A court of review will not disturb a decree disposing of a matter of alimony unless it is manifest that injustice and injury have been done as between the parties. Craig v. Craig, 163 Ill. 176, 45 N. E. 153. The amount of $320 was1 conceded to remain unpaid under the provisions of the temporary decree which was binding on the parties until the same was modified and the right of the plaintiff to such accrued amount was a vested right, not affected by subsequent modification of the decree. The chancellor below properly held the same to be so due and payable to the plaintiff and properly entered judgment therefor. In so doing, no error was committed. Alimony past due under a decree is a vested debt, and cannot be set aside nor can payment of amount past due thereunder be changed by a subsequent order of court. Craig v. Craig, supra; Cooper v. Cooper, supra; McAdams v. McAdams, 267 Ill. App. 124; Herrick v. Herrick, 319 Ill. 146, 149 N. E. 820.

The purpose of the separate maintenance statute seems to have been to grant to married women living separate and apart from their husbands without fault an action in equity which would remedy the defects of the common law in that regard. McAdams v. McAdams, supra; Ross v. Ross, 177 Ill. App. 542. The present Illinois Statute also accords that legal right to the husband. Section 22 of chapter 68 of the Ill. Rev. Stat. [Jones Ill. Stats. Ann. 109.189], provides in part as follows: ‘ ‘ That married men or women, who without their fault, now live or hereafter may live separate and apart from their wives or husbands, may have their remedy in equity, in their own names, respectively, against their said wives or husbands in the circuit court of the county where the wife or husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition in life of the parties at the place of residence of the wife or husband, and the circumstances of the respective cases; and the court at any time after service of summons and proper notice to the wife or the husband may make such allowance of temporary alimony, attorney’s fees and suit money as may appear just and equitable, as in in cases of divorce,” — . The “fault” referred to in the statute does not necessarily require that the complaining party be “wholly blameless,” but consists either in a voluntary separation, or such failure of duty or misconduct as materially contributed to a disruption of the marital relation. Johnson v. Johnson, supra; McCarthy v. McCarthy, 219 Ill. App. 369; Decker v. Decker, 279 Ill. 300, 116 N. E. 688; Bielby v. Bielby, 333 Ill. 478, 165 N. E. 231; Amberson v. Amberson, 349 Ill. 249, 181 N. E. 825.

Finally, it is insisted that the decree is erroneous in that it orders payment of certain sums including solicitor’s fees to the plaintiff’s solicitor named in the decree. This contention is well taken. The law requires the decree to make such payments direct to the interested party and not to his or her counsel. Anderson v. Steger, 173 Ill. 112, 50 N. E. 665; Low v. Low, supra. In the latter case a decree for separate maintenance and solicitor’s fees was granted to plaintiff, which contained a clause ordering that the solicitor’s fees be paid to the plaintiff’s solicitors for the plaintiff. Such order was reversed as to said provision only and such words were stricken as surplusage by this court and the order with such words deleted, was affirmed. Here, as there, quoting “We have no doubt of our right to affirm this order except as to the objectionable provisions, and to reverse those provisions only. This we shall do.” The court concluded “The order is reversed as to the provisions contained in these words only. With these words stricken out, the order will stand affirmed.” Specific statutory authority for the correction of such orders by courts of review is contained in the provisions of section 92 of the Civil Practice Act (Smith-Hurd’s Ann. Stats., ch, 110, par. 216, subpar. (1) (f) and subpar. (1) (f) of sec. 216, ch. 110, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.092]) which reads as follows: “(1) In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, — (f) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, as the case may require. ’ ’

In the instant case, wherein the material issues of fact and the evidence was conflicting, the case was sharply contested. We have carefully considered the very able and earnest contentions and the analysis of law and facts presented by appellant’s counsel. We have not discussed all of such contentions and assignments of error but have fully considered the same and we hold that no prejudicial error appears in the record and that the decrees and orders of the trial court appealed from herein should be and are affirmed in all respects except as to the following surplus words and language contained in the provisions and paragraph of the final decree ordering payment of $42.50 per month by defendant to plaintiff until further order of court, which surplus words and language reads as follows: “James E. Henson for the use of” and also the further surplus words and the repetitious language appearing therein, vis: “for the period of six months, after which the defendant is ordered to pay direct to the plaintiff the sum of Forty-two 50/100 ($42.50) Dollars per month for each and every calender month thereafter” which said surplus words and provisions so above set forth are reversed and stricken from the provisions of said decree. It is further ordered that from the paragraph and provisions of said final decree ordering payment of $125 solicitor’s fees by defendant to plaintiff, the following words and provision, to-wit: “James E. Henson, attorney for” is so reversed and stricken from said decree. It is further ordered that said decree, except as to said words and provisions so reversed and stricken therefrom, shall stand and that the same, together with all other decretal orders appealed from, are affirmed by this court.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: Justice Dove.

license: Public Domain

text:
    Westmore Supply Company v. Eugene L. Frum et al. Chicago Title and Trust Company v. Westmore Supply Company et al. Walter R. Youngberg, County Treasurer, et al., Appellees, v. Kuenzel and Frye, Appellant.
    Gen. No. 9,798.
    Heard in this court at May term, 1942;
    opinion filed September 17, 1942;
    opinion modified and rehearing denied December 3, 1942.
    George F. Feather-stone, Jr. and Newhall & Givler, for appellant;
    Gordon Moffett, John W. Leedle and Lee E. Daniels, State’s Attorney, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Justice O’Connor.

text:
    Cummings-Landau Laundry Machinery Company, Appellee, v. Harry Koplin et al., Appellants.
    Gen. No. 42,384.
    Heard in first division, first district, this court at October term, 1942;
    opinion filed October 26, 1942;
    supplemental opinion filed and rehearing denied November 14, 1942.
    Levinson, Becker, Peebles & Swiren, for certain appellant; Don M. Peebles, Herbert Portes and Theodore R. Sherwin, of counsel;
    Gurman & Eberle, for appellee; Samuel P. Gurman, Marvin S. Penchel, Floyd E. Thompson and Herldon H. Bowen, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in fulL”


author: Per Curiam.

text:
    Drewrys Ltd., U. S. A., Inc., Appellee, v. Drewrys Beers, Inc. et al., Appellants.
    Gen. No. 42,426.
    Heard in third division, first district, this court;
    opinion filed October 29, 1942.
    Freeman & Freeman, for appellants; Earl Freeman, of counsel;
    Mulcahy, Murphy & Walsh, for appellee; Michael F. Mulcahy and Henry W. Dieringer, of counsel.
   Per Curiam.

“Not to be published, in full.’’


author: Presiding Justice Riess.

text:
    Town of Pawnee, Sangamon County, Illinois, Appellee, v. Walter H. Hagler et al., Appellants.
    Gen. No. 9,324.

      Heard in this court at October term, 1942;
    opinion filed October 29, 1942.
    Prank R. Eagleton, for appellants;
    Roscoe Bonjean, for appellee.
   Opinion by

Presiding Justice Riess.

“Not to be published in full.”


text:
    Mildred Sturgeon, Administratrix of Estate of John E. Sturgeon, Deceased, Appellee, v. Clifton Quarton, Minor, by Lester K. Vandever, Appellant.
    Gen. No. 9,346.
    Heard in this court at October term, 1942;
    opinion filed October 29, 1942.
    John T. Dickinson and Hill & Vandever, for appellant;
    Dennis J. Godfrey, for appellee.
   Opinion by

Presiding Justice Riess.

“Not to be published, in fuU.”


author: Justice Dady.

text:
    American Historical Company, Inc., Appellant, v. A. L. Clark, Conservator of Estate of Ella M. Rainey, Incompetent Person, Appellee.
    Gen. No. 9,339
    Heard in this court at October term, 1942;
    opinion filed October 29, 1942.
    Gilbert K. Hutchens, for appellant;
    Vogt & Vogt and A. B. Johnson, for appellee.
   Opinion by

Justice Dady.

“Hot to be published in full.”


author: Justice Hayes.

text:
    George Geisler, Appellee, v. Bank of Brussels, Appellant.
    Gen. No. 9,345.
    Heard in this court at October term, 1942;
    opinion filed October 29, 1942.
    William G. Vogt, for appellant;
    C. C. Worthy, for appellee.
   Opinion by

Justice Hayes.

“Hot to be published in full.”


author: Presiding Justice Culbertson.

text:
    Levi Davis, Appellee, v. Chas. P. Davis, Trading as Hannibal-Quincy Truck Line, Appellant.
    Heard in this court at May term, 1942;
    opinion filed November 2, 1942.
    Kramer, Campbell, Costello & Wiechert, for appellant;
    Green & Hoagland, for appellee; R. B. Maucker and J. J. Middleton, of counsel.
   Opinion by

Presiding Justice Culbertson.

“Not to be published in full.’’


text:
    Charles H. Theis, Appellant, v. Stolze Lumber Company, Appellee.
    Heard in this court at May term, 1942;
    opinion filed November 2, 1942.
    George H. Muelder, for appellant; John B. Harris, of counsel;
    Sullivan, Schuman & Moran, for appellee.
   Opinion by

Presiding Justice Culbertson.

“Not to be published in full.’’


author: Mr. Presiding Justice Sullivan

text:
    Patrick Walsh, Appellant, v. Charles Gazin, Appellee.
    Gen. No. 41,502.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed November 17, 1942.
    Rehearing denied December 8, 1942.
    Ryan, Sinnott & Miller, of Chicago, for appellant.
    Hinshaw & Culbertson, of Chicago, for appellee; Oswell G. Treadway, of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal by plaintiff, Patrick Walsh, seeks to reverse a judgment entered in favor .of defendant, Charles Gazin, in an action brought by plaintiff to recover damages for personal injuries sustained by him when he was struck by defendant’s automobile. In addition to the general verdict finding defendant not guilty the jury answered special interrogatories submitted by the court at defendant’s request as follows: “Q. Do you find the plaintiff was guilty of wilful or wanton misconduct which proximately contributed to his injury? A. Yes. Q. Do you find that the defendant wilfully or wantonly caused injury to the plaintiff? A. No.”

Plaintiff’s complaint consisted of two counts, the first of which alleged that he was lawfully crossing Devon avenue a short distance east of Kedzie avenue; that defendant was driving an automobile eastward in Devon avenue; that plaintiff was in the exercise of ordinary care; and that the defendant was negligent in one or more in the following respects: “a, carelessly and negligently drove his automobile; b, drove at a speed greater than was reasonable and proper; c, failed to keep a lookout ahead for pedestrians crossing the street; d, failed to give warning, or to stop to avoid injury, contrary to section 40, chap. 95a, Ill. Statutes (1933).” The second count was identical, except that it omitted the averment of due care on plaintiff’s part, and charged the defendant with wilful and wanton conduct.

Defendant’s answer denied the various charges of negligence and wilful and wanton conduct alleged in the complaint. This case was tried once before and the jury disagreed. During said first trial defendant filed an amended answer averring that plaintiff was guilty of wilful and wanton conduct which proximately caused the injury and that he was therefore not entitled to recover.

The following is plaintiff’s theory of fact. The accident in question happened in daylight (about 6 p. m., May 24, 1934), on a.clear, dry day, in Devon avenue at a point approximately 125 or 130 feet east of the east curb line of Kedzie avenue. The western terminus of the Devon avenue street car line was a short distance east of Kedzie avenue. There were 3 street cars standing at the end of the line, 2 of them on the west bound track west of the crossover switch. The third street car stood on the east bound track in the “pocket” between the switch and the end of the east bound street car track. The street car of which plaintiff was the motorman (hereinafter referred to as plaintiff’s car) was the easternmost of the 2 cars on the west bound track and its east end was just west of the switch in position to be driven over said switch onto the east bound track so that it might proceed in an easterly direction. The east end of the street car on the east bound track was approximately 25 feet west of the east end of plaintiff’s car. Plaintiff had 7 or 8 minutes before his scheduled time to start on his trip east. He stepped down from the south doorway at the east end of his car and started in a southerly direction across Devon avenue to go to a toilet provided by the street car company on the south side of Devon avenue. When he was about even with the south “edge” of the street car, which was standing on the east bound track, he looked to the west. When he saw that there was no east bound traffic between him and Kedzie avenue, he then proceeded to walk south toward the south sidewalk of Devon avenue. When he first looked to the west, he did not see defendant’s automobile because at that time it was west of Kedzie avenue and traveling east about the center of Devon avenue and because his view of the portion of Devon avenue in which said automobile was approaching was obstructed by the standing street cars. The distance between the south rail of the east bound street car track and the south curb of Devon avenue was 14 feet, 7 inches. When plaintiff had taken about 3 or 4 steps so'uth from the south rail he looked to the west again and at that time saw defendant’s automobile about 40 or 50 feet to the west of him. Plaintiff took a quick step to get out of the way of defendant’s automobile but before he could take a second step and when he was within 2 or 3 feet of the south curb, the right front fender of the automobile struck him. Defendant’s automobile was being driven at a speed of between 40 and 50 miles an hour. No horn was sounded or other warning given. Plaintiff was thrown through the air toward the east a distance of 20 to 25 feet and defendant’s automobile passed the point where plaintiff’s body landed a distance of 20 to 40 feet before being brought to a stop. As a result of the impact the right front fender of defendant’s automobile was bent and its right headlight was broken. Defendant knew that employees of the street car company and passengers customarily crossed the street at the point where he drove past the standing street cars.

Defendant’s theory of fact is that as he traveled toward the east across Kedzie avenue he was driving at a speed of about 25 miles an hour; that he saw the 3 street cars standing at the end of the Devon avenue line, 2 on the west bound track and 1 on the east bound track; that after he passed Kedzie avenue he continued to drive east along the south portion of Devon avenue about 2 feet from the south curb at a speed of about 25 miles an hour until he was about opposite or a little to the east of the center of the car standing in the “pocket” on the east bound track; that when he was at that point he first saw plaintiff; that the latter walked across the south rail of the east bound track without looking toward the west; that as plaintiff walked across said south rail he was at a distance variously estimated at from 4 to 10 feet east of the street car standing in the “pocket” on the east bound track; that as soon as he saw plaintiff defendant stepped on his brakes; that after plaintiff crossed the south rail he continued to walk toward the south curb ; that , after plaintiff had taken 3 or 4 steps toward the south curb he hesitated, looked to the west, saw defendant’s automobile and then started to run toward the south curb; that he came in contact with the right front portion of defendant’s automobile; and that defendant’s automobile was traveling with its right wheels about 2 feet from the south curb and was about 15 feet west of plaintiff when the latter got into its path.

Plaintiff’s principal contention is that the special verdict of the jury finding him guilty of wilful and wanton conduct is contrary to the law and the evidence.

A careful search of the record fails to reveal any facts or circumstances in evidence which support or tend to support defendant’s charge that plaintiff was guilty of wilful and wanton conduct. Plaintiff’s conduct at the time of the accident and immediately prior thereto was not such as to constitute wilful and wanton conduct within any of the generally accepted definitions of that term.

In discussing what constitutes wilful and wanton conduct in Brown v. Illinois Terminal Co., 319 Ill. 326, the court said at p. 331:

“A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596; Heidenreich v. Bremner, 260 id. 439; Illinois Central Railroad Co. v. Leiner, 202 id. 624.) ”

In Nosko v. O’Donnell, 260 Ill. App. 544, the court said at p. 552:

“. . . a consideration of the cases discloses that the conduct which in law will be held wilful and wanton must be either such conduct as intentionally inflicts an injury or conduct which ethically under the facts and circumstances appearing, is the equivalent thereof.”

In our opinion the most that plaintiff could have been guilty of, even under defendant’s version of his conduct, would be contributory negligence. The very term wilful and. wanton conduct ordinarily connotes conduct which is intentional or the equivalent thereof and is of such a nature as is likely to or does inflict injury to others or to their property. It can hardly be said that plaintiff, whose only purpose in walking across Devon avenue was to go to a toilet on the south side of said street, was guilty of conduct that manifested an intention to injure defendant or his automobile, or of conduct, whereby with knowledge of impending danger, he was willing to inflict injury generally or was indifferent as to whether injury was inflicted on any one, or of conduct which exhibited a reckless disregard for the safety of others.

Circumstances may be conceived under which a pedestrian would be barred from recovery for injuries resulting’ from his own wilful conduct. However, in so far as we have been able to ascertain it has never been held that a pedestrian was guilty of wilful and wanton conduct merely because of his failure to observe a rapidly approaching automobile until it was close upon him.

The law is well established that wilful and wanton conduct on the part of a plaintiff precludes recovery from a defendant who is also guilty of wilful and wanton conduct and a defendant has the right to raise an issue as to such conduct on the part of a plaintiff in a proper case. Defendant did raise such issue in this case but it became an entirely false issue herein since there was absolutely no evidence to support the charge made in defendant’s amended answer that plaintiff was guilty of wilful and wanton conduct.

We are impelled to hold that the submission by the court to the jury of the special interrogatory as to whether plaintiff was guilty of wilful and wanton conduct constituted reversible error inasmuch as there is no evidence in the record to support the special finding that he was guilty of such conduct. Necessarily such finding was against the manifest weight of the evidence.

Since this case must be reversed and the cause remanded for the reasons already stated it is unnecessary to consider plaintiff’s contention that the general verdict was against the manifest weight of the evidence.

Other points are urged but in the view we take of this case we deem further discussion unnecessary.

The judgment of the superior court of Cook county is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Friend and Scanlan, JJ., concur.


text:
    Evelyn L. Marks, Appellant, v. Thos. Cook & Sons-Wagon-Lits, Inc., Appellee.
    Gen. No. 41,730.
    Heard in the second division of this court for the first district at the June term, 1941.
    Opinion filed November 17, 1942.
    Julian C. Ryer, of Chicago, for appellant.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for appellee; Jesse H. Brown, of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment order of the municipal court of Chicago, which dismissed the instant action brought by plaintiff, Evelyn L. Marks, to recover damages from the defendant, Thos. Cook & Sons-Wagon-Lits, Inc., for the alleged breach of a contract of carriage entered into between the parties, which- contract covered a pleasure trip by plaintiff from Chicago to the Mediterranean sea and certain African ports and return to Chicago. The voyage included several side trips, one being to Rabat, French Morocco, Africa, where it was alleged plaintiff was injured in an automobile accident while being conducted on said trip.

Plaintiff originally brought suit against the defendant in the United States District Court for the same damages alleged to have resulted from the same accident and pursuant to the order of that court filed a bill of particulars. This was stricken on November 10, 1939 by agreement of the parties and an order was entered directing plaintiff to file an amended bill of particulars. Upon the failure of plaintiff to file the amended bill of particulars, the United States District Court by order entered February 19, 1940 dismissed the suit under rule 12(e) of the rules of civil procedure of the United States District Courts, which provides as follows:

“(e) Motion for More Definite Statement or For Bill of Particulars. Before responding to a pleading or, if no responsive pleading is permitted by these rules, within 20 days after the service of the pleading upon him, a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. A bill of particulars becomes a part of the pleading which it supplements.” (Italics ours.)

No appeal was taken from the foregoing order of dismissal entered by the United States District Court nor was a motion made to vacate such order.

On May 28, 1940 plaintiff, Evelyn L. Marks, filed the instant action in the municipal court of Chicago and defendant moved to strike the statement of claim on several grounds, one of which was that plaintiff’s action was barred by the statute of limitations. In opposing this motion plaintiff filed the affidavit of Maurice Kelner, her then attorney, which alleged inter alia that the, prior action in the United States District Court and the instant suit were identical as to the parties and subject matter. Attached as an exhibit to said affidavit was the order entered in the United States District Court case on February 19,1940 reciting the failure of plaintiff to file an amended bill of particulars therein as ordered by that court and dismissing that case under rule 12(e) of the rules of civil procedure of the United States District Courts. The motion of defendant to strike the statement of claim filed herein was denied and a defense was filed. Thereafter defendant obtained leave to withdraw its defense and to file a motion to dismiss upon the ground that under rule 41(b) of the United States District Courts’ rules of civil procedure, the dismissal of the federal court case constituted an adjudication upon the merits.

Rule 41(b) is as follows:

“ (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for improper venue, operates as an adjudication upon the merits.” (Italics ours.)

Defendant’s motion to dismiss, predicated upon the foregoing rule, was sustained and the case was dismissed by Judge Lambert K. Hates of the municipal court. As heretofore shown, it is from this judgment order of dismissal that this appeal is prosecuted.

Plaintiff contends that “the alleged adjudication is not properly pleaded, and the question is only raised by an affidavit setting forth a rule of the federal rules of civil procedure;” and that “when a party to a pending suit pleads former adjudication, as a bar, it must be made to appear that there is an identity of parties, identity of subject matter, identity of cause of action and that the record in the prior suit shows that the particular controversy was necessarily tried and determined.”

Defendant’s theory as stated in its brief is that “the record of the municipal court on the basis of which the court dismissed the case contained every element necessary for a complete consideration of defendant’s motion to dismiss, and that the order of dismissal was correctly entered and that the authority and effect of rule 41(b) of the rules of civil procedure of the district courts cannot be attacked in the municipal court, particularly when the plaintiff had ample opportunity to.assert her rights in the district court, but abandoned her suit; that plaintiff had her day in court but refused to file pleadings which were sufficient in law.”

The only question presented for determination is whether the United States District Court’s dismissal of the action filed therein involving the identical parties and subject matter as are involved in this case constituted such an adjudication as barred the maintenance of the instant action in the municipal court of Chicago.

In our opinion the adjudication by the United States District Court is a complete bar to the prosecution of the same cause of action in the municipal court. As heretofore shown plaintiff filed the affidavit of her attorney in opposition to defendant’s motion to dismiss the case at bar on the ground that the statute of limitations had run. This affidavit contained the positive averment that the case in the United States District Court and the instant case were identical as to parties and subject matter. The affidavit set forth the order entered by the United States District Court under its rule 12(e) dismissing the suit for plaintiff’s failure to file an amended bill of particulars. Defendant’s motion to dismiss was predicated upon rule 41(b) of the rules of civil procedure of the United States District Courts, heretofore set forth, which provides that a dismissal under the circumstances shown “operates as an adjudication upon the merits.” Thus the municipal court trial judge had before him every fact necessary to the determination of the rights of the parties.

It is strenuously urged in plaintiff’s behalf that she is being unjustly deprived of the right to a trial of the case on the merits. It is true that the prior adjudication in the United States District Court did not result from a trial on the merits but resulted from plaintiff’s failure to comply with Buie 12(e) of that court. Plaintiff selected that court in the first instance as the forum for the trial of the case. By so doing she voluntarily assumed the privileges and obligations of the rules of procedure of such court. She could have had a trial upon the merits in the United States District Court by complying with its order to file a proper and sufficient pleading. But this she refused to do and thereby abandoned her action. After such abandonment the federal court under its rules had no other course to pursue than to dismiss her case on defendant’s motion. As heretofore stated plaintiff neither appealed from said order of dismissal nor did she move to vacate same. If she had been sufficiently interested and diligent she could have asked that the order of dismissal be entered “without prejudice” to her refiling her suit at a later date either in that court or some other court of competent jurisdiction, or within six months she could have moved upon a proper showing to set aside the order of dismissal. (Rule 60(b) United States District Courts rules of civil procedure.) As has been seen plaintiff did none of the things necessary to preserve her right to a trial on the merits in the federal court but simply abandoned her right of action there.

It was not for the municipal court and it is not for this court to question either the propriety or the constitutionality of rule 41(b) of the rules of civil procedure of the United States District Courts which provides, as already shown, that the dismissal of a case in the federal court under the circumstances disclosed herein “operates as an adjudication upon the merits.”

We are impelled to hold that the trial court properly decided that the prior adjudication by the United States District Court constituted a bar to the maintenance of the instant action in the municipal court.

The-judgment order of the municipal court of Chicago is affirmed.

Judgment order affirmed.

Scanlan and Friend, JJ., concur.


text:
    Josephine Ward Cahill, Appellee, v. Mortimer L. Cahill et al. Appeal of Mortimer L. Cahill, Appellant.
    Gen. No. 42,275.
    Heard in the second division of this court for the first district at the June term, 1942.
    Opinion filed November 17, 1942.
    Rehearing denied December 8, 1942.

      Montgomery, Hart, Pritchard & Harriott, of Chicago, for appellant; Charles O. Parker, of Chicago, of counsel.
    Leo J. Bartoline, of Chicago, for appellee; James B. McKeon, of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

By this appeal defendant, Mortimer L. Cahill, seeks to reverse an order which denied his motion for a reduction in the amount of his alimony payments and which directed him to pay certain attorney’s and commissioner’s fees.

January 10,1935, a decree of divorce was entered in favor of plaintiff, Josephine Ward Cahill, and against her then husband, Mortimer L. Cahill. The parties entered into a settlement agreement on January 9, 1935, which was incorporated as part of the decree. Under this agreement defendant agreed to “pay as alimony and for the maintenance and care of the boy of the parties hereto, Jack Mortimer Cahill, the sum of not less than $200 . . . monthly.” The agreement also provided for the assignment by the defendant to the plaintiff of certain insurance policies on defendant’s life and for the payment of the premiums on such policies by the defendant.

On May 6,1941, plaintiff filed a petition in which she alleged inter alia that defendant had paid her only $150 for eaéh of the months of February, March and April, 1941, whereas the decree provided that he pay her $200 a month. Her petition prayed that defendant be held in contempt of court for his failure and refusal to comply with the terms of the decree. Defendant filed an answer to this petition and he also filed a petition praying for a reduction in the amount of alimony he was required to pay under the decree. Defendant’s answer to plaintiff’s petition and defendant’s petition for modification averred facts showing a change in circumstances since the decree was entered and alleged that he was not able to pay more than $150 a month as alimony. Plaintiff filed an answer to defendant’s petition for modification denying his right to a reduction. Both plaintiff’s and defendant’s petitions and the answers thereto were referred to a special commissioner for hearing. The commissioner’s report recommended the continuance of the alimony payments of $200 monthly as ordered by the decree. Defendant filed exceptions to the commissioner’s report. After hearing by the trial court on the commissioner’s report and the exceptions thereto, an order was entered which approved the commissioner’s report and continued in effect the alimony payments required to be made under the decree of divorce. As heretofore stated it is this order from which the appeal is taken. There is no substantial dispute as to the facts.

When the decree of divorce was entered in January 1935 defendant had an annual net income of $14,000. During the preceding year he had suffered a breakdown in health which resulted in his total disability. Under the terms of an insurance policy carried by him he was entitled to receive payments of $1,000 monthly as long as his total disability continued. In addition to such disability payments of $1,000 monthly he at that time received approximately $2,000 a year net income from an insurance business previously conducted by him. Defendant received the disability payments of $1,000 monthly under his insurance policy from January 1935 to March 1936 when these payments were reduced to $500 monthly, which amount he has continued to receive up to the present time. Defendant’s present income consists of $6,000 a year, received from his disability insurance plus a varying amount of insurance commissions for the renewal of policies sold by him when he was engaged in the insurance business. • These commissions averaged about $50 a month at the time of the hearing before the commissioner bnt are gradually decreasing because such renewals are going off the books. His total income for 1941 was about $6,600. Because of the condition of his health defendant is not engaged in any gainful occupation. He has endeavored to earn money by writing fiction but has not realized anything from this source. He has been advised by his physician to refrain from engaging in any active business and he has not been able during the past several years to earn any income. He is 59 years old and has no property other than his household furniture and a small amount of cash. Defendant remarried and is living with his present wife in Springfield, Missouri. He moved there because of his poor health and in order to take care of his mother. He is the sole support of his mother and pays $65 a month to maintain her in a sanitarium.

At the time of the entry of the decree of divorce Jack Mortimer Cahill, son of plaintiff and defendant, was a minor. He became of age January 8, 1941 and is now employed and earns $25 a week. At the time of the hearing he was living with plaintiff and contributed to the payment of their household expenses. Plaintiff has been employed part time by Marshall Field & Company, Chicago, since the entry of the decree and earns from $65 to $70 a month. It was after the son became of age that defendant reduced his monthly payments from $200 to $150 a month.

According to the evidence presented before the commissioner plaintiff and defendant entered into an agreement in October 1938 whereby Cahill was released by plaintiff from payment of the $100 monthly premiums on the insurance policies which he had assigned to her under the provisions of the decree. Pursuant to this agreement these policies were dropped and plaintiff received the net cash surrender value of same amounting to $2,155. As to said agreement plaintiff and her two sons testified that in consideration of plaintiff releasing defendant from the payment of the insurance premiums of $100 a month, he agreed to pay her $200 a month as long as he lived and as long as he was in receipt of the $500 monthly disability payments. Defendant did not deny that he made this agreement.

Defendant’s theory is that “since the decree was entered there has been a change in circumstances which, upon principles of equity, requires a reduction in the alimony payable under the decree. ’ ’ The changes of circumstances relied upon by the defendant consist of “(1) the drastic reduction in his income; (2) the coming of age of the minor son of the parties who had previously been supported by the plaintiff out of the alimony paid to her by the defendant; and (3) plaintiff’s émployment in a gainful occupation and her earnings of substantial monthly sums.”

Plaintiff’s theory is stated in her brief as follows: “(1) In October, 1938, upon full consideration the plaintiff and defendant, according to defendant’s circumstances at that time, adjusted the matter of payments. (2) The plaintiff accepted the offer of defendant to pay her $200 a month for the life of defendant, in consideration of plaintiff’s agreeing to the cancellation of life insurance policies given her under divorce decree, aggregating $23,122.04, thus relieving him from payments of premiums amounting to $100 a month. (3) That if said adjustment agreement had been submitted to this Court for approval it would be adopted as the decree of this Court, no fraud or unfairness being shown or now claimed by defendant. (4) That the parties in 1938 did not rely upon the equity powers of this Court for the adjustment of the matter, and that the question is not now open for consideration, in the absence of a change of circumstances between October, 1938, and the present time. (5) That there is no proof in this record of a change in the circumstances of the defendant between 1938 and the present time. (6) That the lower Court did not err in overruling defendant’s petition for a reduction in payments from $200 to $150 a month.”

Section 18 of the Divorce Act (ch. 40, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.186]) provides that “the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, ... as shall appear reasonable and proper.” Such application may be made even though the parties entered into an agreement for the payment of alimony and maintenance, which was incorporated in the decree. (Herrick v. Herrick, 319 Ill. 146; Maginnis v. Maginnis, 323 Ill. 113; Adler v. Adler, 373 Ill. 361.)

In the Herrick case where an alimony agreement between the parties was incorporated in the decree of divorce, the Supreme Court affirmed an order of the trial court which reduced the amount of alimony payable under said decree from $300' to $200 a month and also relieved the husband from making certain other payments amounting to $300 annually. There the court said at p. 153:

“The foundation of alimony being the obligation of the husband to support his wife, and the decree being merely the enforcement of that obligation in behalf of a wife legally permitted to live apart from her husband, our statute wisely recognizes that a change in circumstances may require a change in the decree. As the measure of the sum required is necessarily the need of the wife and the ability of the husband to pay, the amount decreed will logically be affected by change in either element. (Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580.) Where there is a change in circumstances which upon principles of equity requires a change in the order for alimony there is no doubt of the power of the court to make the modification. (Cole v. Cole, 142 Ill. 19.) In making the change the court should take into consideration, as it apparently did in the case at bar, the property and income' of the parties, their ages, health and social conditions, and whether there are children dependent upon one or both of them for support. (Gilbert v. Gilbert, 305 Ill. 216; Decker v. Decker, 279 id. 300.) It is undisputed that there has been considerable change in the circumstances of this family since the original decree was entered. When the order modifying the allowance for alimony was made the son was twenty-four years old and was soon to graduate from college, and appellee by reason of ill-health had been compelled to resign from his professorship and had suffered considerable reduction in his regular income.”

Plaintiff insists that the agreement of October 1938, heretofore referred to, “is the law of the parties as to the subject matter thereof” as of the date when made and that said agreement precludes consideration of any change of circumstances that occurred between the date of the entry of the decree and the time said agreement was entered into. No case has been cited and we have been unable to find one which enunciates any such rule of law. In Walter v. Walter, 189 Ill. App. 345, after the entry of a decree of divorce allowing alimony and after the entry of a subsequent order reducing such alimony to $6 a week, the parties entered into an agreement whereby the wife released the husband from all claims for future alimony in consideration of his assignment to her of a certain life insurance policy and his promise to pay the premiums thereon. Subsequent to the making of this agreement, the wife petitioned the court for and secured an order directing the husband to pay $5 a week as alimony. On appeal to this court from that order same was affirmed. In that case this court speaking through Justice McSurely said at pp. 348, 349:

“It does not appear that this agreement between the parties was ever brought to the attention of the court, but it seems to have been made without the knowledge or approval of the court, and there is no modification of the original order directing the payment of alimony. Is such a contract binding upon the complainant and on the court, so that the court may not on application grant whatever relief to complainant may seem equitable and just ? Wei think it is not. We hold that before such an agreement can be binding and conclusive its fairness and equity must be made manifest to the court having jurisdiction, and that its approval must appear of record. In Audubon v. Shufeldt, 181 U. S. 575, the court said: ‘Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. . . .’ This was quoted with approval in Welty v. Welty, 195 Ill. 335 (340). To the same effect also is Barclay v. Barclay, 184 Ill. 375, while in Silberschmidt v. Silberschmidt, 112 Ill. App. 58, where a contract was involved substantially the same as the one before us, the court held, in effect, that the approval of such a contract rests entirely in the discretion of the court upon review of all the circumstances and said that ‘the agreement executed by the parties, unsanctioned by the court, could not control the court . . . and that the court was as untrammeled in the premises as if said agreement had not been made. ’ And in Recht v. Kelly, 82 Ill. 147, quoted with approval in Zachmann v. Zachmann, 201 Ill. 380, the general principle is stated to be that ‘laws enacted from considerations of public con-' cern, and to subserve the general welfare, cannot be abrogated by mere private agreement. ’ ”

The court is not controlled by the private agreement of the parties respecting alimony and may adopt it or reject it, as seems consistent and proper from the situation of the parties as disclosed by the evidence. (Herrick v. Herrick, supra; Warren v. Warren, 116 Minn. 458.) In Hill v. Hill (Colo.), 107 P. (2d) 597, the parties entered into an agreement reducing the alimony as fixed by the decree. There the court in passing upon the conclusiveness of such private agreement said at p. 598:

“The question is: May the parties themselves agree to the payment of a lesser amount than that fixed by the decree? We know of no rule which precludes parties who are sui juris from entering into such a contract, and while the court is not necessarily bound by the agreement, if its terms are fair and no fraud attends its execution, it may be recognized by the court.”

Thus the agreement between the parties of October 1938, entered into without the approval of the court, is not the law of the case as of the date of said agreement and is not conclusive and binding upon the court or the defendant as plaintiff claims. This does riot mean that the agreement is not entitled to any consideration. It is merely one of the elements that should be considered with all the other facts and circumstances in determining whether there was such a change in the circumstances of the parties, between the date of the entry of the decree and the time of the hearing on defendant’s petition for reduction, as to warrant the modification requested by him. The agreement should be considered both as to its purpose and fairness and while plaintiff strenuously insists that defendant’s promise to pay her personally $200 a month alimony as long as he lived in,consideration of her agreement to relieve him of the payment of the $100 monthly insurance premiums was eminently fair, it must be remembered that when she relieved him of the payment of said insurance premiums she received the net cash surrender value of the policies, amounting to $2,155.

This is not a ease where a divorced husband attempted to evade his obligations under the decree at any time. In fact, as will be hereinafter shown, he paid his wife or in her behalf over a considerable period far more than his income warranted. Cahill faithfully complied with the decree of the court as to the payment of alimony and maintenance until his minor son became of age in January 1941. At that time defendant reduced his monthly payments to his wife from $200 to $150 a month. The trial court permitted him to pay at this rate until the order was entered approving the recommendation of the commissioner that defendant’s motion for reduction be not allowed. As already stated, defendant’s total net income was $14,000 a year when the decree was entered in January 1935 and pursuant to the agreement of the parties at that time it was ordered that he pay plaintiff or in her behalf $300 monthly, which included her alimony, the minor son’s maintenance and insurance premiums. This $300 monthly payment amounted to slightly more than 20 per cent of his then income. His wife was not employed at that time. He continued to receive approximately that same income until March 1936 and also continued to make the payments ordered by the decree. Notwithstanding that the monthly disability payments which defendant had been receiving under his insurance policy were reduced from $1,000 to $500 a month commencing March 1936 and that the income from renewals on insurance policies, which he sold while he was in the insurance business, had been gradually decreasing, he continued to pay plaintiff or in her behalf $300 a month until October 1938. During all this period and since the decree was entered plaintiff was employed and earning $65 or $70 a month. Defendant’s income from all sources in 1938 was about $6,400 a year, or $533 a month. So it will be seen that during the period from March 1936 until October 1938 defendant was paying plaintiff $200 a month for her alimony and maintenance of the minor son and insurance premiums of $100 monthly in her behalf, which payments amounted to more than 56 per cent of his then income of $533 a month. In addition plaintiff was earning $65 or $70 a month. At the same time defendant was paying $65 a month for the maintenance of his mother in a sanitarium, which latter payment he was both morally and legally bound to make. Thus defendant was left with but $168 a month out of his total income of $533 a month for the support of himself and his second wife, while plaintiff was receiving an income of $265 or $270 a month for the support of herself and minor son. Defendant’s financial situation as just depicted compelled him to seek relief from plaintiff in 1938 and their negotiations culminated in the agreement of October 1938.

Thus it clearly appears that for a considerable period prior to the time the agreement of October 1938 was entered into defendant was oppressively burdened with the payments he was required to make under the decree. In order to be relieved of at least some of that burden defendant sought to make some reasonable arrangement with his wife without resorting to the court to adjust their financial relations in accordance with the changed circumstances of the parties. What was plaintiff’s purpose in securing from defendant his agreement to pay her $200 a month by way of alimony for herself instead of having him continue his monthly payments of $200 covering both her alimony and the minor son’s maintenance ? She knew that her minor son would become of age in a little more than two years thereafter and that in all likelihood defendant would be allowed a reduction when the boy attained his majority. She desired to protect herself in advance against such probable reduction. There was really no consideration at all on her part for the agreement she secured from defendant since she made no concession to him that he was not entitled to as a matter of equity.

The evidence shows conclusively that defendant could not possibly pay more than $200 a month when the agreement of October 1938 was consummated. It was then a question as to whether plaintiff preferred to have defendant continue to pay the monthly insurance premiums of $100 and to pay her $100 monthly instead of $200 for her alimony and the maintenance of her son or to have him continue to pay her $200 monthly for her alimony and the maintenance of her son and surrender her insurance policies, thus releasing defendant from the payment of the premiums on same. She chose the latter alternative and as has been shown received the cash surrender value of the policies amounting to $2,155. Thus she elected to take the then value of the insurance policies and continued to receive $200 a month from defendant. It is difficult to perceive under the circumstances any consideration from her for defendant’s promise to pay her $200 a month as and for her own alimony as long as he lived.

We are convinced that if all the facts and circumstances existing at the time the agreement of October 1938 was entered into were submitted to a court of equity at that time, along with the evidence as to the change in the circumstances of the parties since the entry of the decree, that defendant would have been allowed a reduction of at least $100 a month in his aggregate payments without the imposition upon him of any other or further obligation.

We are impelled to hold that the private agreement of the parties of October 1938 was not only unfair but unconscionable and that it is not legally effective to preclude the consideration of the change in the circumstances of the parties since the entry of the original decree of divorce.

The change in the circumstances of the parties since the entry of the decree of divorce in our opinion entitles defendant to the relief sought by him. As already shown plaintiff has been continuously employed since the entry of the divorce decree at a salary of $65 or $70 a month. The minor son had attained his majority, was employed, earned $25 a week and lived with his mother at the time of the hearing. Defendant’s net income was $14,000 a year when the decree was entered and it was $6,600 a year at the time of the hearing. Deducting $65 a month, which defendant was both morally and legally obligated to pay for his mother’s maintenance in a sanitarium, from his monthly income of $550, left him with a monthly income of $485 for all other purposes. If compelled to continue to pay plaintiff $200 monthly solely for her own alimony, the minor son having become of age, this would give her an overall income of $265 or $270 a month while defendant would be left with $285 a month. The allowance to1 plaintiff of $200 monthly alimony out of defendant’s $485 available monthly income amounts to slightly more than 40 per cent of same. If plaintiff were allowed $150 a month- alimony that would amount to about 30 per cent of defendant’s $485 available monthly income, which together with the $65 or $70 monthly income from her employment, would give her an aggregate income of $215 or $220 a month. This would seem ample and fair in view of all the circumstances and particularly in view of the change in the circumstances of the parties since the decree of divorce was entered in January 1935. The reduction in defendant’s alimony payments from $200 to $150 a month would afford plaintiff a total"monthly income of $215 or $220, as has been shown, and would leave defendant with a net monthly income of $335. Thus her total income would amount to about two-thirds Of his.

The law is well established that where both the wife and husband are in receipt of income, the income of the wife as well as that of the husband must be taken into consideration in determining the amount of alimony the divorced husband must pay his former wife.

In Gilbert v. Gilbert, 305 Ill. 216, the court in enunciating this rule said at p. 221:

“Where both have an income, the method of computation of what is a proper allowance is to add the wife’s annual income to her husband’s, consider what, under all the circumstances, should be allowed her out of the aggregate, then from the sum so determined deduct her separate income, and-the remainder will be her proper allowance. ’ ’

To the same effect is Decker v. Decker, 279 Ill. 300.

For the reasons stated herein we are impelled to hold that the refusal of the trial court to grant defendant’s petition for a reduction in the amount of his alimony payments as required by the original decree of divorce constituted an abuse of discretion by said court.

The order of the superior court of January 26, 1942 which denied defendant’s petition for a reduction in his alimony payments and directed him to continue to pay $200 a month to plaintiff in accordance with the provisions of the divorce decree, is reversed and the cause is remanded with directions to sustain defendant’s exceptions to the commissioner’s report and to allow defendant a reduction from $200 to $150 monthly in his alimony payment's as prayed in his petition.

Order reversed and cause remanded with directions.

Scahlah, J., concurs.

Friehd, J., took no part.


author: Mr. Justice Friend

text:
    Edward A. Anderson, Appellant, v. John Hancock Mutual Life Insurance Company, Appellee.
    Gen. No. 41,995.
    Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed November 17, 1942.
    Rehearing denied December 8, 1942.
    William J. Condon, of Chicago, for appellant; Peter D. Giachini and Ode L. Rankin, both of Chicago, of counsel.
    Eckert & Peterson, of Chicago, for appellee; Tom Leeming and Richard V. Henry, Jr., both of Chicago, of counsel.
   Mr. Justice Friend

deliver,ed the opinion of the court.

Plaintiff sued as beneficiary under three industrial type life insurance policies written by defendant upon the life of Effie L. Anderson, aggregating $1,010. At the close of plaintiff’s case and again when all the evidence had been concluded, defendant moved for a directed verdict. The court reserved the motion and submitted the cause to the jury, who disagreed and were discharged. Thereafter defendant’s motion for a directed verdict was continued for hearing and upon further consideration was allowed, and judgment was entered for defendant and against plaintiff for costs, from which this appeal is taken.

At the time of Effie L. Anderson’s death June 14, 1939, the premiums on all three policies had been fully paid. Adequate proof of death and claim on the policies was made by- plaintiff, and the policies were attached and made a part of his statement of claim. Defendant admitted plaintiff’s prima facie right to recover under the policies, but averred as a matter of affirmative defense that the policies were void by reason of the breach of certain conditions enumerated therein, under which the policies would become void for any of the following reasons: (1) if, prior to issuance, the insured had cancer; (2) if, within two years prior to the issuance of the policies, the insured had been treated by a physician for a serious disease; (3) if, within two years of the issuance of the policies, the insured had had a surgical operation; (4) if, within two years of the issuance of the policies, the insured had attended a hopsital; and (5) if, upon the date of the issuance of the policies, the insured was not in good health.

The written applications for insurance made by deceased, which contained answers to various interrogatories pertaining to her health, hospitalization and medical treatment and included the physician’s and inspector’s reports, stating that she was in good health and a safely insurable- risk, were not attached to the policies, but were retained by defendant. The affirmative defenses interposed were not predicated upon any misrepresentation or false warranty as to the applicant’s health or safety as an insurable risk by reason of any statements made in the applications for insurance, but rested on an alleged breach of the conditions stated in the policies as hereinabove set forth and were supported by evidence adduced by defendant to show that she had been hospitalized within two years prior to the issuance of the policies, had undergone a surgical operation for removal of a breast cancer, and that she was not in good health on the date when the policies were issued.

There being substantially no dispute as to the salient facts with respect to the hospitalization, medical treatment and condition of Mrs. Anderson’s health (although it does not appear that she knew the nature of her disease), the court, adopting defendant’s construction of section 154 of the Insurance Code of 1937 (Ill. Rev. Stat. 1939, ch. 73, par. 766 [Jones Ill. Stats. Ann. 66.829]), allowed the motion for a directed verdict and entered judgment thereon, upon the theory that the right of the defendant to assert the defenses relating to the insured’s medical history as to sound health, surgery and hospitalization, as conditions precedent to the policies taking effect, was not barred by its failure to attach the applications to the policies. Section 154 of the Insurance Code is: “Misrepresentations and False Warranties.) No misrepresentation or false warranty made by the insured or in his behalf in the negotiation for a policy of insurance, or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or indorsement or rider attached thereto, or in the written application therefor, of which a copy is attached to or indorsed on the policy, and made a part thereof. No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company. This section shall not apply to policies of marine or transportation insurance.”

The question presented is whether the code is susceptible of the construction urged by plaintiff, that failure of the company to attach the applications to its policies precluded it from relying on the conditions in the policies to defeat or avoid them. Defendant takes the position that the provisions of the policies relating to insured’s medical history were conditions precedent to the policies’ taking’ effect, the failure to comply with which had to be alleged and proved by defendant as a matter of affirmative defense; that the conditions precedent, being part of the contract entered into by competent, freely contracting parties, were operative according to their terms, if they were not illegal or contrary to public policy; that defendant’s right to assert these defenses was not barred by its failure to attach applications to the policies, since neither section 154 of the Insurance Code nor any other existing rule of law requires applications for industrial life insurance to be attached to the policies, nor bars the assertion of a breach of conditions contained in the policies themselves when the applications are not so attached; that since the breach of conditions precedent in the policies had been alleged and proved, defendant was entitled to a directed verdict in its favor. No attempt was made in this case to avoid the policies because of false representations or warranties contained in the applications and no such defense was asserted in the pleadings. Upon trial defendant’s evidence was directed exclusively to the proving of the breach of five conditions contained in the policies relating to insured’s sound health, her freedom from cancer, her treatment by a physician for a serious disease and her attendance at a hospital for a surgical operation.

Considerable argument is presented as to the probable legislative intent in enacting section 154. However, the language employed is clear and unambiguous and is, in our opinion, not susceptible of the construction sought by plaintiff. The enactment of the code undoubtedly effected certain changes in the Illinois law with respect to representations and warranties. No statutory provision was theretofore in force in this State governing misrepresentations and warranties in insurance contracts, although statutes upon this subject had been enacted in practically every other State. Section 154 provides that no misrepresentations or false warranties may defeat a policy unless they be embodied in such policy or indorsement, rider or application attached thereto and made a part thereof. This was the rule effective before the enactment of the code as applicable to false warranties, but no such requirement existed as to misrepresentations. Before the enactment of the code Illinois courts had, to a large extent, observed the common law distinction between representations and warranties, but section 154 places representations and warranties in policies issued since the passage of the code upon the same footing. It restricted the rules theretofore applied to warranties and broadened those applied to representations. Under the common law rule with respect to false warranties, intent to deceive or materiality of the statements was not essential to avoid the policy. This rule was altered by section 154 in that a false warranty must either be made with actual intent to deceive or must materially affect the acceptance of the risk or the hazard assumed. (Illinois Insurance Code Annotated, prepared by the annotating committee of the section on insurance law of the Illinois State Bar Association, published by the Foundation Press, Inc., 1939, at p. 284 et seq.)

The enactment of section 154 requires the insurer to place the entire insurance contract upon which it intends to rely in the hands of the insured, whether that contract be in the form of the policy alone, or in the form of the policy plus such indorsements, riders or applications as are attached thereto and made a part thereof. In the case at bar defendant relied upon the policy alone and the conditions enumerated therein. That it had the right so to do seems justified from that sentence in section 154 which provides that no misrepresentation, false warranty or breach of a condition shall defeat the policy unless it “shall have been stated in the policy or indorsement or rider attached thereto, or in the written application therefor, of which a copy is attached to or indorsed on the policy, and made a part thereof.” We think there is considerable force to defendant’s contention that the repeated use of the word “or” is highly significant and tends to show the alternative scope of the insurance contract upon which insurer may rely. Since there is no requirement in the code or otherwise that applications be attached to policies of this character, we would not be justified in construing the code to include such a requirement.

In the able brief presented by plaintiff there are suggestions of the consequences that may ensue from holding that applications need not be attached to policies of industrial life insurance. The conditions contained in a policy are usually in printed' form and not readily observed by the average layman after the policy is issued. If the application were attached the questions propounded by the agent and the applicant’s answers thereto, touching upon the health, hospitalization and treatment of the applicant, would more readily be discerned when the policy issued and could be corrected if false or inaccurate. Such procedure would undoubtedly afford greater protection to insured and guard him against possible frauds of agents who usually prepare the applications and who, in some instances, have been known to falsely record the true answers given by the applicants respecting their health. Where the application is not attached to the policy, insured labors under the impression that he is protected by the policy issued to him, and if he dies before the period of incontestability has expired his beneficiary is deprived of the benefits which the insured thought he had. However, all these considerations rest with the legislature, and we think it likely that if its attention were called to the evils which may result from the failure of the code to require that applications be attached to the policies, amendments remedying these possible evils may result.

The circumstances of this case, as disclosed by the undisputed evidence, would not entitle plaintiff to recovery, since the evidence tended to show that the insured had been hospitalized within two years prior to the issuance of the policy, had undergone a surgical operation for removal of a breast cancer and was not in good health on the date the policies were issued. So far as the construction of section 154 of the code is concerned, we are of opinion that the court properly allowed the motion for directed verdict and entered judgment accordingly upon the theory that the right of the defendant to assert the defenses relating to insured’s medical history as conditions precedent to the policies’ taking effect was not barred by its failure to attach the applications to the policies.

The judgment of the municipal court is therefore affirmed.

Judgment affirmed.

Sullivan, P. J., and Scanlan, J., concur. '


author: Me. Justice Friend

text:
    Marie Zwierzycki, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 42,005.

      Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed November 17, 1942.
    McClanahan & McClanahan, of Chicago, for appellant; Alice M. McClanahan, of Chicago, of counsel.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellee; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
   Me. Justice Friend

delivered the opinion of the court.

Plaintiff, as beneficiary of two life insurance policies issued by the Metropolitan Life Insurance Company, brought suit to recover $1,000 under a double indemnity clause in the policies which provided that “Upon receipt of due proof that the death of the Insured resulted, independently of all other causes, from bodily injuries caused solely by external, violent, and accidental means, the Company will pay, as an additional death benefit, an amount equal to the amount payable under the Schedule, . . . The additional benefit shall not be payable if the Insured’s death . . . (e) is the result of participation in an assault or felony.” Defendant admitted the issuance of the policies and the death of the insured, denied that he came to his death from injuries sustained solely through external, violent and accidental means, averred that insured had met his death at the hands of a police officer in Chicago, which was held by the coroner’s jury to be justifiable homicide, averred that under the terms and provisions of the policies the accidental death benefit was not payable, and denied that it was indebted to plaintiff.

The case has been twice tried before juries and in both instances verdicts were returned in favor of plaintiff, assessing her damages at $1,000. On the first trial defendant’s motion for a new trial was allowed. At the conclusion of the second hearing and after the jury had returned its verdict, defendant moved for a new trial, but before the court passed on that motion defendant also moved for the entry of a judgment in its favor notwithstanding the verdict, which the trial court granted. The motion for a new trial was never disposed of and judgment was entered in favor of defendant, from which this appeal is taken.

The principal question involved is whether plaintiff was entitled to the accidental death benefit provided for in the policies. The case presents unusual circumstances. Harold J. Fuhry, who at the time of the incident had been an officer on the police force in Chicago for about four years, finished his official duties at four o’clock in the afternoon of May 24,1939, went home, changed to civilian clothes, called for a woman companion, and in the course of the evening parked his car among the weeds in a vacant lot near 45th street and Kildare avenue. The identity of the woman was undisclosed and the court sustained objections to interrogatories of plaintiff’s counsel as to whether Fuhry was married and whether the companion was Fuhry’s wife. Fuhry testified that he and his companion had been listening to a radio program, that shortly before midnight he had turned off the radio and while placing it in the back seat of his car he saw a man with a gun in his hand approach the car from out of the weeds on the right. The windows of Fuhry’s car were open only about two and one-half inches on each side. He says that the man came up to the car and said “stick them up,” at the same time projecting a pistol through the small opening in the window. He could not get his hand inside as the window was not sufficiently open for that purpose. Thereupon Fuhry grabbed his own pistol from the back seat cover and shot twice through the window, one shot hitting the insured in the left hand and the other shot striking him in the jaw and ricocheting down into his shoulder on the left side. The insured fell to the ground, and, according to Fuhry, he found the gun alongside the injured man, placed it in his (Fuhry’s) pocket, lifted insured from the ground and walked with him some two blocks through the vacant lots, to an A & P bakery at 47th street and Kildare avenue. There was a watchman at the bakery who, at Fuhry’s command, guarded insured while Fuhry called the police, who upon arrival removed insured to the Bride-well hospital, where he died five days later. A certified copy of the death certificate indicates that insured was shot by a police officer and contains a finding by the coroner’s jury that it was justifiable homicide.

Plaintiff’s counsel comment on the unusual circumstances under which Fuhry required insured, who was mortally wounded, to walk two blocks to the A & P bakery. It would have been far more humane, and probably in accordance with the usual police practice, to either call a police ambulance to the scene of the shooting or to have removed insured in Fuhry’s automobile to a hospital, where he could have been treated without undergoing unnecessary exertion and delay. It is a fair inference that Fuhry chose the means employed because he sought to protect the identity of his companion and also because he did not want to expose himself to the suspicion of fellow officers of having shot a man while parked at midnight in an empty lot under the circumstances disclosed by the evidence.

Plaintiff sought to show that while waiting for the police ambulance at the A & P bakery insured asked Fuhry, “Why did you do that, I wanted to ask you a question.” It is urged that this testimony tended to rebut Fuhry’s story and was admissible as part of the res gestae, but the court sustained defendant’s objection to the offer. However, later in the proceeding evidence of this conversation was elicited from the watchman and another employee who was also present when insured was brought into the bakery. Fuhry had previously testified that he had no conversation with insured that he recalled, notwithstanding the testimony of both disinterested witnesses that a conversation had taken place.

Insured was a middle-aged man, married for 20 years, and the father of four children. He had been employed by the Chicago Metal Manufacturing Company for about ten years. George F. Hauf, president and general manager of the corporation, testified that he had made frequent surveys of his employees affording him an opportunity to observe their habits and character. He said that insured was a capable workman employed as a welder, that he got along well with his fellow employees, worked steadily, and that his services were always satisfactory. William Gauweiler, secretary and treasurer of the corporation, said that he knew insured and testified from company records that he had been steadily employed for about ten years and up to the date of this occurrence, that he normally worked 46% hours a week and had worked 38 hours during the preceding week. Jack Novak, another witness, said that he was the factory superintendent, knew insured and had opportunity to observe him frequently, that he had worked directly under Novak’s supervision for eight or nine years, was an industrious employee and a very fine workman. While insured was lying critically ill at the Bridewell hospital, his wife and four children called there day and night but were never permitted to see or visit him.

Upon this state of facts the jury returned a verdict in favor of plaintiff for $1,000. Defendant’s principal contention is that the uncontradicted evidence shows that insured was shot while attempting a holdup and that his injuries and death were not the result of accidental means, and it is argued that there was no legal evidence to support the verdict and therefore no error was committed by the trial court in entering judgment for defendant notwithstanding the verdict. The gravamen of the argument is that, according to Fuhry’s testimony, insured was shot as the result of participating in an assault or felony, that this evidence was uncontradicted, and there was no competent evidence supporting the verdict of the jury finding the issues for plaintiff. Counsel rely on the rule that a jury cannot wilfully or from mere caprice disregard the testimony of an unimpeached witness, and they urge that Fuhry’s testimony was unimpeached, was substantiated by the certified copy of the death certificate showing “justifiable homicide,” and further supported by the testimony of the watchman and the other A & P employee that the 22 caliber revolver, which Fuhry said he found beside insured, was loaded.

Since the court sustained objections to questions tending to disclose the identity of Fuhry’s companion when the insured was shot, Fuhry was the only available eyewitness to the shooting and under the circumstances it was impossible for plaintiff to produce any evidence directly contradicting Fuhry’s testimony. However, his story must have sounded highly improbable to two juries who refused to believe him, and we know of no rule of law which requires a jury to believe the testimony of a witness whose evidence is tainted with suspicious circumstances, even though it is not susceptible of contradiction under the circumstances here shown, and especially when not corroborated by other concurring evidence. Fuhry undoubtedly found himself in an embarrassing situation, and by his evidence sought to protect and exculpate himself from guilt. It is not uncommon for police officers to carry more than one weapon, and it may well be that the jury disbelieved his story that he averted an attempted holdup and that insured was armed when he approached Fuhry’s automobile. When interrogated about the conversation with insured at the A & P bakery Fuhry testified that he had no conversation that he recalled, although both employees of the bakery said that some conversation took place. If insured had been engaged in the commission of a holdup, as Fuhry testified, it is extremely doubtful that he would have asked the officer, “Why did you do that, I wanted to ask you a question.” This alleged conversation purports to have taken place shortly after the shooting and was properly part of the res gestae.

The fact that the coroner’s jury exonerated the officer in an ex parte hearing does not establish the fact that insured was engaged in the commission of a felony, and if the jury disbelieved Fuhry’s testimony to this effect it was justified in concluding that the shooting was accidental and not the result of participation in an assault or felony. These circumstances constituted evidence which the jury had a right to consider, along with the evidence of two of the insured’s employers and an associate, all of whom testified that he had been a steady, industrious and efficient workman. It is not difficult to understand why a jury refused to believe that a man of middle age, married 20 years and the father of four children, who had been steadily employed for so many years, would suddenly emerge as the perpetrator of a serious felony.

It is fundamental in onr law that it is error for the trial court to enter judgment in favor of defendant non obstante veredicto where there is evidence tending to support the verdict. The trial judge is not justified in weighing, the evidence. In Gnat v. Richardson, 311 Ill. App. 242 (Abst.), the court, in reversing a judgment notwithstanding the verdict in favor of defendants, said “the court erred . . . for the reason that there was evidence in the record from which, standing alone, the jury might, without acting unreasonably in the eyes of the law, find the material averments of the complaint to be sustained. A motion for a directed verdict under such circumstances is properly denied. The court in passing upon the defendants’ motion for judgment notwithstanding the verdict is limited to facts appearing in evidence and must consider them in the light most favorable to the plaintiff.”

Plaintiff’s counsel seek reversal of the judgment herein and ask that the cause be remanded with directions that the trial court pass upon the motion for a new trial, which was undisposed of. The Supreme Court of Illinois has recently handed down two opinions where, under similar circumstances, judgment notwithstanding the verdict was entered, but a motion for a new trial was not disposed of. (Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59, and Goodrich v. Sprague, 376 Ill. 80.) It was held in those cases to be the duty of the court to pass upon both motions. If it were proper we would not hesitate to reverse the judgment notwithstanding the verdict and remand the case with directions that judgment be entered on the verdict returned by the jury, especially since the cause has been twice tried with the same verdicts. The circumstances and evidence in the case would warrant such an order, but in view of the foregoing decisions we have no recourse except to reverse the judgment notwithstanding the verdict and remand the cause with directions that the trial court pass upon the motion for a new trial, and for such other proceedings as may be appropriate and not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Sullivan, P. J., and Scanlan, J., concur.