text:
    Gladys M. Grubb, Appellee, v. Illinois Terminal Company, Appellant.
    Gen. No. 8,994.

      Opinion filed June 3, 1936.
    Rehearing denied October 6, 1936.
    Graham & Graham, of Springfield, for appellant,; Hugh J. Graham, Jr., of counsel.
    A. M. Fitzgerald and Lee W, Ensel, both of Springfield, for appellee.
   Mr. Presiding Justice

Davis delivered the opinion of the court.

This is an appeal taken by the Illinois Terminal Company, defendant appellant, from a judgment in favor of Gladys M. Grubb, plaintiff appellee, rendered by the circuit court of Sangamon county, in a suit in which plaintiff sought to recover damages alleged to have been sustained by her on account of the negligence of defendant.

The complaint charges in its several counts that defendant, on April 7, 1934, operated its electric cars over a crossing of U. S. ¡Route 66, south of the city of Springfield; that one of its cars was operated in an easterly direction while plaintiff was riding in an automobile driven by Dorothea Grubb over said crossing; that the plaintiff was at all times in the exercise of due care for her own safety; that the defendant negligently drove its electric cars so that said cars came into collision with the automobile, and plaintiff was injured; that the electric cars were driven at a dangerous rate of speed, 60 miles per hour, over said crossing; that the defendant failed to give any warning by bell, whistle, or otherwise, of the approach of the cars to said crossing; that by reason of such negligence the train of defendant collided with the automobile in which plaintiff was riding, and injured her.

Defendant answering denied each charge of negligence and denied due care by plaintiff, and alleged negligence in the approach of the automobile and denied that the negligence of defendant was the proximate cause of the collision.

The accident in question took place south of Springfield, Illinois, where U. S. Route 66 crosses the railroad of appellant at right angles and at grade. The railroad runs directly east and west and U. S. Route 66 north and south. The highway is level and the concrete slab is 20 feet in width; the railroad is level east of the crossing, but a short distance west of the crossing it rises at about a two per cent grade so that the top of a rail, at the top of a viaduct over another railroad, is about 27 feet higher than the pavement on U. S. Route 66 at the crossing. This is at a point about 1,400 feet west of the pavement. The defendant installed an electric flash signal at this crossing, one on the north side and one on the south side of the track. As one approached this crossing from the south, there are several buildings located on the west side of the highway, the east side being open and unobstructed for quite a distance. On the west side is a two-story house, located 46% feet south of the track and 74 feet from the eastern edge of the slab; on the north side of this house is an addition, the northeast corner of which is 38% feet from the track.

Defendant’s Exhibit 2 is a photograph, which the photographer testified showed correctly what would be seen by a person whose eye was in the position of the camera lens at that time. The camera was placed 44 feet south of the track, looking west, and was right at the edge of the right-hand side, — the east side of the road, — just off the slab, the east edge of the slab. This photograph shows the viaduct and a fill at the east end of the viaduct, which is about 750 feet west of the hard road, and is about 13 feet in height and gradually slopes toward the pavement, and a short distance west of which it is of the same elevation as the hard road.

On the west side of the highway, about 20 feet south of the house just mentioned, is a two-story house located back from the highway, about the distance of the first house mentioned, and 60 feet south of this house is a filling station located about 200 feet south of the railroad track. The train consisted of a motor and two trailers and was about 180 feet long and 13% feet high. The automobile in which plaintiff was riding was a Ford, 1932 coach, and was in first class operative condition.

Appellee and her sister, Dorothea who was driving, and Bonnie Lewis were going north to Springfield. All of them were riding in the front seat, Bonnie in the middle and appellee on the right-hand side. The driver was on the west side of the car. They were traveling at a speed of about 20 miles per hour, and just as they were about to cross the track of appellant a train, traveling in an easterly direction, crossed the, hard road and the car in which appellee was riding ran into the side of the train and the driver of the car, Dorothea, died as a result of the collision and appellee, Gladys, was severely injured.

The jury, upon the trial of said cause, returned a verdict for $10,000 and the court, after denying a motion for a new trial, entered judgment upon the verdict.

At the close of the evidence for plaintiff the defendant made a motion to instruct the jury to find the defendant not guilty, which was overruled by the court ; and at the close of all the evidence defendant made a motion asking the court to instruct the jury to find defendant not guilty, the court reserving its decision on said motion.

After the return of the verdict of the jury the court denied the motion of defendant, made at the close of all the evidence, to instruct the jury to find the defendant not guilty. The defendant, after the motion for new trial was overruled, moved the court in writing for a judgment, notwithstanding the verdict in favor of the plaintiff, alleging several reasons.

Appellant assigned errors and asks that this court reverse the judgment of the circuit court of Sangamon county; or, in case this court does not reverse the judgment, that the judgment of the circuit court be reversed and the cause remanded to that court.

The evidence is contradictory as to the speed of the automobile as it approached the crossing in question, and also as to the speed of the train as it approached the crossing. Several witnesses testified that the speed of the automobile was from 20 to 50 miles per hour, and the speed of the train was fixed at from 20 to 45 or 50 miles per hour.

Appellee and her sister testified that no horn or whistle was sounded from the train. A large number of persons testified that a horn or whistle was sounded as the train approached the crossing. At the time of the accident the automobile came in contact with the standard which supported the flash signal on the south side of the railroad, and which was located on the east side of the roadway about eight feet from the track and demolished the same. Several witnesses, including appellee and her sister, testified that, as the automobile approached the crossing, the flash signal did not operate on the south side of the railroad, and on behalf of appellant two witnesses testified that they observed the south side flasher operating when trains were passing in the morning. The accident occurred after 11:00 o ’clock a. m.

It is insisted by appellant that the court erred in refusing to direct a verdict and to enter judgment for defendant appellant because appellee wholly failed to show she exercised drfe care, whether she was a guest occupant of the automobile or a member of a joint enterprise with her sister, Dorothea Grubb, and wholly failed to show that any negligence of appellant was the cause of her injury.

On the part of the plaintiff the evidence tends to show, when they came to the crossing, appellee cautioned her sister, who was driving, to be careful as there might be trains coming, and she said she would, and slowed to 20 miles per hour; that appellee lowered the window on the east side of the car and she looked east and saw no train, and then all three of the occupants of the car looked to the west, and Bonnie said there isn’t anything coming* from this direction, and I said I don’t think there is either because the lights are not working. Appellee testified that there were no lights working on the south side as they approached the crossing. She was corroborated by her sister, Bonnie Lewis, in cautioning her sister, Dorothea, to slow down.

It is true that the rule is in this State that it is the duty of persons about to cross a railroad track to look about them and see if there is danger and not go recklessly upon the track. When a traveler on a public highway fails to use ordinary precaution in driving over a railroad crossing, such conduct is condemned as negligence, and one who has an unobstructed view of an approaching train is not justified in closing his eyes or failing* to look, or in crossing the track or in relying upon the assumption that a bell will be rung or a whistle sounded. Greenwald v. Baltimore & O. R. Co., 332 Ill. 631.

In this case it appears from the evidence that the view of plaintiff and the driver of the car was more or less obstructed by the buildings, on the west side of the street, from a point 38% feet south from the railroad to over 200 feet, and it was not possible to get a view of the track for any great distance to the west until one reached a point on the east side of the pavement 44 feet south of the track.

Appellant had established a system of flash signals at this crossing to warn persons using the same of the approach of trains. From the testimony it appeared that, after reaching the crossing, the driver was cautioned, and all of the occupants of the car looked in both directions and saw no train, and plaintiff came to the conclusion no train was coming because the flash signal on the south side of the railroad was not working, and they proceeded at the rate of 20 miles per hour when they came in collision with the train.

The testimony of the plaintiff tends to show that the occupants of the car relied upon the fact that the flash signal was not working and therefore there was no train coming.

In the case of Oswald v. Grand Trunk Western Ry. Co., 283 Ill. App. 86, it is said there are many cases throughout the courts of the country wherein the question, as to whether some failure on the part of the railroad company to furnish a warning of an approaching train, either by bell, gates, or flagman, which at other times had usually been employed, relieves the traveler on the road of the same degree of care for his safety as would otherwise be required. Those cases proceed on the theory that the traveler has the right to expect and be guided by the warning usually employed at the crossing, and that, although the warning was intended as a notice to the traveler, the absence of the warning justified the traveler, if he relaxed his usual caution, some of the cases going to the extent of saying that it is an invitation extended to the traveler to cross the tracks with an implied assur-anee that no train is approaching, which he may to some extent rely upon and lessening the otherwise imperative duty of the traveler to stop, look and listen.

The question of due care on the part of plaintiff is a question for the jury, when there is any evidence of the same given on the trial, from which any legitimate inference may be legally and justifiably drawn. Oswald v. Grand Trunk Western Ry. Co., supra.

It is insisted by appellant that appellee and the driver were engaged in a joint enterprise. The evidence of the plaintiff is that they were going to buy wall paper and paint for one of the rooms in their home. Appellee testified we, myself, Dorothea and Bonnie were going to pay for this. All three of us just went together and bought the gasoline, and whatever it cost, for us to come up here.

Upon this testimony it is insisted that they were engaged in a joint enterprise. And it is insisted that every element in the constitution of a joint enterprise between the sisters is clearly shown without a particle of contradiction.

In Fisher v. Johnson, 238 Ill. App. 25, it is said:

The parties cannot be said to be engaged in a joint enterprise unless there is a community of interests in the objects or purposes of the undertaking and an equal right to direct and govern the movements of each other.

The court in its opinion in that case further said, “And we might add, in the language of Nonn v. Chicago City Ry. Co., 232 Ill. 378, 'There has not been a scintilla of evidence pointed out which indicates that appellee could direct or control the movements of the wagon or the method of driving. The driver was in sole charge. This being the state of the record, we cannot agree with appellant’s contention that the negligence of the driver, if any, would be imputed to appellee.’ ”

In this same case it is said by the court:

“Referring to cases of joint enterprise it was said in Robison v. Oregon-Washington R. & Nav. Co., 90 Ore. 509:

“ ‘In all of them there runs a vein of common financial interest indicating a quasi partnership entailing the usual joint control. This would seem to furnish the ultimate distinguishing characteristic of joint venture in such cases, which is none other than the right, either express or implied, to direct the movement of the vehicle employed in the transportation connected with the venture. This must be so, because fault in the operation of the vehicle is charged as negligence. ’ If the control of the vehicle is outside of the scope of the joint scheme or is vested exclusively in one of the members of it, imputed negligence in operation will not arise.

“The right to direct or participate in the control of the vehicle claimed to be used in a joint enterprise has frequently been applied in testing whether the negligence of the driver could be imputed to his companion, and the rule, as above stated, is supported by the greater weight of authority.”

In Thomas v. Buchanan, 357 Ill. 270, it is said: While deceased was required to exercise due care and caution for his own safety while riding in the automobile of Anderson, yet, so far as the evidence discloses he had no authority over Anderson in the operation of the automobile, and no agency being shown the negligence of Anderson, if any, cannot be imputed to the driver in the suit brought by his legal representatives against the third person to recover damages for injuries sustained by him, which occasioned his death, citing the case of Nonn v. Chicago City Ry. Co., supra.

There is nothing in the testimony relied upon that in any way tends to indicate that appellee could direct or control the movements of the automobile, or the method of driving. Dorothea, the sister, was in sole charge. In this state of the record we cannot agree with appellant’s contention that the negligence of Dorothea, the driver of the car, if any, could be imputed to appellee so far as any joint enterprise, that the evidence showed appellee and the driver of the car might have been engaged in. Appellant contends that the court permitted the witness, Rodgers, to testify that after the accident a new flasher had been installed. It appears from the record that, on cross-examination, appellant asked the witness: '“You had never seen them flash until after the accident,” to which the witness answered, “I had never seen them flash until after the accident. They put in new ones and they worked. ’ ’ On motion of appellant the answer was excluded. Then, on redirect examination, counsel for appellee asked the witness, “You say they changed these signal lights after the accident.” Appellant objected, saying that was not brought out by me, and the court permitted the witness to answer; and on further questioning answered, Yes; and further testified, that they were working perfectly.

While the court should have sustained the objection to the question of appellant on redirect examination, as to a change in the signal lights after the accident, yet the undisputed evidence is that the standard supporting the signal lights on the south side of the railroad was broken, and we do not think permitting the witness to testify as to the putting in of new lights was reversible error.

Appellant also complains of the refusal of the court to give its instruction No. 4, and in the giving of ap-pellee’s instructions Nos. 6 and 7. In the giving of instructions Nos. 6 and 7 of appellee, we are of opinion that the court did not err. Instruction No. 4 of appellant which the court refused to give was as follows:

If you believe from the evidence that the plaintiff and the driver of the automobile in which she was injured were, at the time of the collision in question, engaged in a joint purpose to buy material in which each had an interest, and each were to bear part of the expense, and that the plaintiff and the driver of the automobile were each to share in the automobile expense of the trip, and each of them had an equal right to control the course of the trip, then the plaintiff would be chargeable under the law with any negligence of the driver of the automobile, which contributed in any degree to the collision which occurred and to the injury of plaintiff, and in such case, if the driver of the automobile failed to use due and reasonable care in approaching the crossing where the collision occurred and thereby contributed to the happening of the collision, you should find the defendant not guilty.

For the reasons heretofore given we are of opinion that the court did not err in refusing appellant’s instruction No. 4. While appellant assigned a large number of errors, the foregoing is all that was relied upon in its argument; and we are of opinion that no error was committed in submitting the case to the jury. As to the contention that the verdict was contrary to the manifest and overwhelming weight of the evidence. As before shown the evidence was conflicting as to material facts, and the jury, having seen the witnesses and heard them testify, were qualified to pass upon the facts. It is the province of the jury to pass upon the facts in the case, and judges are not permitted to weigh and set aside verdicts, because they might, if sitting as jurors, arrive at a different conclusion. We quote from the case of People v. Hanisch, 361 Ill. 465, 468: “Whatever may be the rule in certain other jurisdictions, we firmly adhere to our often-asserted belief that it is the province of the jury, alone, to determine the weight of the evidence and the credibility of witnesses. If it were not so there would be little use for the jury system. The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury.”

When appellant insists that to go upon a railroad in the path of a moving train, when an unobstructed view of the track is open for more than 40 feet from the track, is contributory negligence as a matter of law, it failed to take into consideration the speed of the train, and that the evidence discloses that the occupants of the car looked in both directions, and the fact that there was evidence in the record to the effect that the flash signal on the side from which the automobile was approaching was not working, and thus conveying to them the information that no train was coming and justifying them to relax the required caution and extending to them an invitation to cross the track, with an implied assurance that no train was approaching, which they to some extent could rely upon, and lessening the otherwise imperative duty to stop, look and listen.

We are of opinion that we would not be justified in disturbing the judgment of the circuit court, and the same is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Allaben

license: Public Domain

text:
    Harry Pearson and Ola F. Pearson, Defendants in Error, v. Wilson Reese and Nerve Reese, Plaintiffs in Error.
    Gen. No. 8,984.
    Opinion filed June 3, 1936.
    Rehearing denied October 6, 1936.
    S. H. Cummins, of Springfield, for plaintiffs in error.
    A. D. Sittler, of Taylorville, for defendants in error.
   Mr. Justice Allaben

delivered the opinion of the court.

The essential facts out of which the issues in this case arose are as follows: Harry Pearson and Ola F. Pearson, on January 27,1932, executed a written lease of a certain 60-acre tract of real estate to Wilson Reese and Nerve Reese, for the period from March 1, 1932, to February 28, 1933. By the provisions of the lease the lessees were to pay or to give to the lessors as rent two-fifths of all grain raised on the leased land, and to deliver same in market. It appears that defendants appellants delivered to plaintiffs appellees 81 bushels of oats raised on the leased premises; that corn raised on the premises was harvested and put into a crib; that plaintiffs appellees made a demand for rent and subsequently sued out a writ of replevin before one McMillan, a justice of the peace of Taylorville, Illinois, which writ was placed in the hands of one C. A. Williams, a constable, who served it by taking the corn in question. The affidavit for the writ of replevin sworn td by the Pearsons alleged that they were the owners of and lawfully entitled to 400 bushels of corn being in the crib located on the farm occupied by Reeses.

It does not appear from the testimony in the case that there was ever any division made of the corn, as between the lessors and the lessees. The only testimony tending to show any division was given by two witnesses who said they had a conversation with Reese relative to buying the farm, in which he asked them if they had to buy feed corn, and why they did not buy the rent corn in the crib and save him hauling it away.

Jury was waived and the case was tried by the court. At the conclusion of the trial the court overruled a motion on behalf of the defendants appellants for a finding on the issues in favor of the defendants appellants. The court found plaintiffs appellees entitled, as owners, to the possession of the corn described in the affidavit, and gave judgment in favor of plaintiffs appellees for recovery of the corn, assessing damages at one cent.

From this judgment this appeal is prosecuted, retying on the theory that the court erred in finding that the plaintiffs appellees were entitled to the possession of the corn, claiming that the court erred in overruling the motion for a finding in favor of the defendants appellants, and in not finding that at the time of the commencement of the replevin suit the right of possession to the corn ivas in the defendants appellants.

There is no question that in order to recover in replevin a plaintiff must be the owner of or have the right to the immediate possession of the property replevied. As our Supreme Court has said in Simmons v. Jenkins, 76 Ill. 479, “To sustain the action of replevin for wrongfully taking and detaining a personal chattel, it is necessary to show that the defendant Avrongfully took it from the actual or constructive possession of the plaintiff. This is elementary law.” We do not see from the evidence in this case that a division of the corn was made or set aside for the lessors so that it could be said that any describable portion of the corn belonged to them.

By chapter 80, section 31, Ill. State Bar Stats. 1935, a landlord is given a lien upon all of the crops groAvn by the tenant, Avhich lien may be enforced by distraint. As said in the case of Wright v. Wilson, 179 Ill. App. 630, at p. 635: “In the case of Finney v. Harding, 136 Ill. 573, referred to by counsel for defendants in error, page 580, the court says: ‘No better statement, perhaps, can be found in our Reports than that made in the separate opinion of Justices McAllister and Craig, in Watt v. Scofield (76 Ill. 261). It is there said: “It is true the plaintiff had a lien given by the statute, but it is a mere lien. The landlord had not, by virtue of the lien, alone, and without levy of a distress warrant, a right of possession.” ’ . . . And in the case of Travers v. Cook, 42 Ill. App. 582, it is said that: ‘The landlord has a mere lien on the “crops grown and growing,” which does not entitle him to possession until he has issued his warrant and executed it, as the laiv authorizes him to do. The title and right of possession is in the tenant, subject to be taken away by appropriate proceedings to enforce the lien of the landlord.’ ”

Where property is leased on share rent, to be divided after the crops are harvested, the title to the whole crop raised is in the tenant until divided and possession given to the landlord. (Sargent v. Courrier, 66 Ill. 245.) In that case the landlord tried to defeat a levy against the tenant’s share of crops by replevin, and the court in its opinion further says: “On the authority of Alwood v. Ruckman, 21 Ill. 200, where it was held, where the relation of landlord and tenant exists, although the rent is to be paid by a portion of the crop, the parties are not tenants in common of the crop, but the title to the whole is in the tenant until the stipulated rent is paid. . . . Two-fifths of the crop became his property when it was put in the cribs and measured, and not before. ’ ’

The lease in question provided that- lessees should pay or give the lessor at the store two-fifths of the corn raised. It appears that when the corn was replevied by the constable all of it was taken and that no attempt had been made at that time to measure off the portion belonging to the lessors or to the lessees, or that what was in the crib had all been set apart for the landlord. Therefore, since no division had been made, and since the rent was to be paid in kind, the corn remained the exclusive property of the tenant until it was set off to the landlord. (Dixon for use of Brodrick v. Niccolls, 39 Ill. 372; Grotefendt v. Schlaeppi-Siever, 213 Ill. App. 436.)

Therefore, the remedy of replevin is not proper or open for the landlord. He should have proceeded to reduce his portion of the crop to. possession by the statutory remedy of distress which allows him to enforce his statutory lien.

For the reasons given the judgment of the trial court is reversed.

Judgment reversed.


author: Mr. Justice Dove

text:
    H. R. Cox and A. B. Cox, Trading as Cox Jewelry Company, Appellants, v. The Aetna Casualty and Surety Company of Hartford, Connecticut, Appel-lee.
    Gen. No. 8,916.

      Opinion filed September 24, 1936.
    Connelly, Walker, Searle & Hubbard, Peter E. Ingelson and Chalmers K. Seymour, all of Moline, for appellants; Wm. M. Walker and Franklin P. Searle, of counsel.
    Cassidy & Knoblock and Stafford & Schoede, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

A robbery insurance policy, effective December 18, 1923, issued by the appellee to appellants forms the basis of this action. The declaration set forth the policy in haec verba and alleged that while it was in full force and effect the premises of the assured were entered by a person unknown to the plaintiffs who perpetrated a robbery of merchandise belonging to the insured. It was further alleged that the plaintiffs, upon suffering the loss, gave immediate notice thereof to the home office of the defendant in Hartford, Connecticut, and to the agent of the defendant who countersigned the policy, and that claim for loss arising under the policy was forthwith made in writing, duly subscribed by the assured and certified to in the manner required by the proof of loss form in use by the company and that said proof of loss was duly delivered to the company by the plaintiffs. The declaration further averred that books of account were kept prior and up to the date of the robbery, by means of which the loss could accurately be determined by the defendant. The declaration then averred full and complete performance of these several requirements by the plaintiffs and further alleged that the value of the merchandise which they lost by said robbery was $30,000.

To this declaration the defendant filed a plea of the general issue and four special pleas. The first special plea averred that the assured did not keep books of account from which the loss could be accurately determined by the defendant. The second special plea averred that the robbery was not established by reasonable evidence. The third special plea averred that the property claimed to have been stolen did not belong to the assured or was not held by the assured in a capacity that would render the assured legally liable to the owner in the event of loss. The fourth special plea, averred that there was not a partnership between H. It.- Cox and A. B. Cox, but that A. B. Cox traded alone. An additional plea was later filed which averred that the robbery was the result of a conspiracy between H. B. Cox, one of the plaintiffs, and James Hruska to defraud the defendant. Another additional plea averred that Ben Cox was an associate in interest and that he entered into a conspiracy with H. B. Cox and James Hruska to defraud the defendant company. After the issues were made up, a trial was had resulting in a judgment in favor of the plaintiffs for $22,383.71. This judgment was later reversed by this court and the cause remanded for a new trial. Cox v. Aetna Casualty & Surety Co., 248 Ill. App. 209. Upon the case being again tried in the circuit court, the plaintiffs recovered a judgment for $25,041.67, which this court again reversed and again remanded the cause. Cox v. Aetna Casualty & Surety Co., 261 Ill. App. 394. Upon the third trial, the court at the conclusion of the evidence on the part of the plaintiffs directed a verdict for the defendant and upon that verdict judgment was rendered and the record is again brought to this court for review by appeal.

Section D of the policy sued on required appellants, upon discovery of any loss for which claim is made, to give immediate notice thereof to the home office of the company in Hartford, Connecticut, or to the general agent or manager who countersigned the policy and to the company’s local authorized agent and to the public police officials and forward to the company full written, details of the nature of the loss. Section F of the policy provided that in the event of a claim for loss, the same shall be made forthwith in writing duly subscribed by the assured and certified to in manner required by the proof of loss form in use by the company. The policy further provided that the company should not be liable unless books and accounts are kept by the insured and the loss can be accurately determined therefrom by the company. The declaration averred that appellants complied with these several requirements and alleged that they gave immediate notice of their loss to the home office of appellee in Hartford, Connecticut and to the agent of the company who countersigned the policy* briefly stating particulars and probable amount of loss and also gave immediate notice thereof to appellee’s authorized agent and the public police authorities. The declaration further averred that claim for loss was forthwith made in writing, duly subscribed" by appellants and certified to in manner required by proof of loss form in nse by appellee and that said proof of loss ivas duly delivered to appellee by appellants. It was further averred in the declaration that books and accounts were kept prior and up to the date of the robbery by means of which the said loss can be accurately determined by the defendant.

The policy sued on was offered and admitted in evidence and by its terms it became effective on December 18, 1923, and insured appellants against loss by robbery for one year. The evidence tended to prove that on December 21, 1923, and at the time the policy was issued, appellants were conducting a retail jewelry business at 1530 Fifth avenue, Moline, Illinois, and on that evening, shortly after 11 o’clock, an unknown person entered appellants’ place of business and perpetrated a robbery of merchandise belonging to appellants. Jean A. Pope testified on behalf of appellants to the effect that he was the authorized agent of appel-lee and solicited H. R. Cox, one of appellants, to take out this policy of insurance; that he did so and on the morning following the robbery and between seven and eight o’clock, Pope was notified by H. R. Cox by telephone of the robbery; that Pope in that conversation told Cox that he would notify the company and he did so; that the general office of the appellee company was in the Insurance Exchange Building, 175 West Jackson boulevard, Chicago, and it was to this office that Pope telephoned and got in communication with Mr. Brodt, the chief adjuster. This witness identified B. F. Ama-to’s signature appearing on the policy sued on and testified that it was his office in the Insurance Exchange Building to which he telephoned on the morning following the reported robbery; that about 10:30 o’clock a. m. the same morning he called Mr. Cox on the phone and advised him that he had notified the company in Chicago and that a representative of the company would arrive by train about 2:30 o ’clock that afternoon and for Cox to be sure and be at the store; that in the afternoon Mr. Swan, an adjuster for appellee, came to Moline and lie and Mr. Pope went to appellants’ place of business and there had a conversation with Mr. Cox concerning the robbery and the methods employed'by Cox in. keeping books of account and records of sales and a list of the jewelry purported to have been stolen was given Swan by Cox. The following morning Mr. Pope and Mr. Swan, the adjuster of appellee, went to Mr. Cox’s residence and had a further conversation with him about the robbery. The evidence is further that on December 23, 1923, appellants employed H. H. Herbst, an adjuster, to represent them in adjusting this loss and Mr. Herbst testified that on the next day he called at the general offices of appellee in the Insurance Exchange Building in Chicago and that he there informed the girl in the waiting room that he was there to report appellants’ loss and was referred to a Mr. Anderson, whose office was in the general office of ap-pellee, and Herbst there had a conversation with Anderson and endeavored to arrange a meeting at Moline in order that appellee might check over and adjust this loss. The evidence further tended to prove that W. H. Holmes was a representative of appellee and that he called upon H. R. Cox in Moline and he was furnished the books and records of appellants and from them he estimated the loss at between $28,000 and $29,000 and so stated to Cox and also to Reynold M. Johnson who testified upon one of the former hearings and whose testimony was read by agreement of the parties at this trial. The evidence also tends to prove that B. F. Secat was' an investigator or adjuster for appellee and he called upon Cox and introduced him to one of appellee’s present counsel, who prepared a statement which set forth the details of the robbery and a list of the articles of jewelry lost and their values and this statement was signed and sworn to by Cox on January 17,1924. The evidence is further that the police officials of Moline were notified immediately after the robber left the jewelry store.

It will be observed that the pertinent provisions of the policy with reference to notice did not require such notice to be in writing but did make it incumbent upon appellants to give immediate notice to the home office of the company in Hartford, Connecticut or to the general agent or manager who countersigned the policy. It is conceded by counsel for appellants that there is in the record no evidence, which was admitted by the Court, tending to prove the giving of notice of the loss to appellee at its home office in Hartford or to Mr. Amato in person, who countersigned the policy, but their counsel insists that the law is that notice need not be given to the executive officer named in the policy but such notice is sufficient if given and received at the company’s place of business and is certainly adequate if such notice induces the insured to act. In support of

this contention, counsel cite Herron v. Peoria Marine & Fire Ins. Co., 28 Ill. 235, Insurance Co. of North America v. McDowell & Brown, 50 Ill. 120, and Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584. It does not appear from the opinion in the Herron case, supra, what the requirements of the policy were with reference to giving notice of loss but in the course of its opinion, the court said: “As to the objection that notice was not given to the secretary of the company of the loss, it is sufficient if it was given and received at the office of the company.” In Insurance Co. of North America v. McDowell & Brown, supra, the court in its opinion said: “There is no force in the objection that the companies did not have sufficient notice of the loss, as they had such notice as induced them to send their general agents to the place to investigate the loss; any notice that produces such a result is sufficient, without reference to its form or particulars. There is no question that the notice was promptly given to the local agents, and that must suffice. ” We will hereafter refer to the Weininger case, supra.

In the instant case the evidence discloses that the policy sued on was countersigned at Chicago, Illinois, by B. F. Amato, deputy superintendent; that the general office of appellee was in Chicago; that the local agent of appellee in Moline gave notice of the loss by long distance phone to this general office of the countersigning deputy superintendent. Counsel for appellee insist, however, that inasmuch as the local agent did not report this loss personally to Mr. Amato, the countersigning agent, that the requirement of the policy was not met although they concede the notice that was given was both immediate and effective. As a result of that notice a representative of appellee arrived from Chicago in Moline the same afternoon for the purpose of investigating the loss. Upon his arrival he got in touch with the local representative of appellee and together they went to see Cox at his jewelry store. Furthermore, appellants, by their agent Herbst, on December 24, 1923, called at the office of the countersigning agent and reported this loss to some man at the counter, who told Herbst that the loss had been referred to the adjusting department. He was shown to that department and an office girl there referred him to Mr. Anderson, and there in this general office of appellee he conversed with Mr. Anderson and endeavored to get him to come to Moline to adjust the claim. In Continental Life Ins. Co. v. Rogers, 119 Ill. 474, it was held-that where notice of loss has been given the company within the time provided by the terms of the policy and is received by.the company without objection, the .sufficiency of such notice cannot thereafter be questioned. Under the authorities, we think from all the evidence in this record that there was a substantial compliance with the requirement of the policy as to notice of loss.

It is next insisted by counsel for appellee that there is no evidence in the record sustaining the averments of the declaration with reference to furnishing appel-lee with the required proofs of loss. The evidence upon this question is that shortly after the robbery, appellants employed Mr. Herbst to represent them in adjusting their loss under the policy sued on; that Herbst called at the Chicago office of appellee and on or about February 6, 1924, received from appellee a form upon which to make a proper proof of loss; that he had previously made a half dozen applications for such form to Mr. Holmes and to Mr. Anderson but his requests were refused. He finally got to see Mr. Brodt and at Mr. Brodt’s suggestion he was given the blank form by Mr. Anderson. It further appears that Holmes, Anderson and Brodt were all employed by appellee as adjusters and had their offices in the general office of ap-pellee in the Insurance Exchange Building at 175 West Jackson boulevard, Chicago; that he, Herbst, immediately filled in the form and made up a list of articles purported to have been stolen. This proof of loss was executed as follows: “Cox Jewelry Co., assured by H. B. Cox of and for said firm.” The jurat was a printed form and recites that “the above named H. B. Cox Jewelry Company, by H. B. Cox of and for said firm, to me known, and who subscribed the same in my presence, and made oath that the foregoing statement and each and all of the schedules and papers hereunto annexed are full and true and without reservation.” Underneath the signature of H. B. Cox appears the following: “ (N. B. ‘Proofs of loss’ must be signed individually by all members of a firm, and by all parties insured in a dwelling who claim indemnity.) ” The objection made by appellee to this proof of loss is that the evidence discloses that the Cox Jewelry Company is a partnership composed of H. B. Cox and A. B. Cox; that the proof of loss form requires information respecting the robbery over the signature and under the oath of all members of the firm; that A. B. Cox is a member of the firm but did not execute the proof of loss. Furthermore, it is contended by counsel for ap-pellee that the proof of loss was not complete as it referred to documents not made a part thereof. It appears further that this proof of loss was sent by Herbst by registered mail to appellee and received by it on February 14, 1924. It was offered in evidence and covers almost 10 pages of the abstract. The evidence discloses further that one day between December 29, 1923, and January 5, 1923, Holmes, the adjuster for appellee, called at appellants ’ store about 9:00 o ’clock in the morning and at his request he was given the books and records of appellants and examined them and sought to make from them a record of the merchandise which appellants had on hand at the time of the robbery. Mr. Cox further testified that a week or two after the robbery Mr. Secat, representing appellee, came to his store and the affidavit hereinbefore referred to which was sworn to on January 17, 1924, was executed. Counsel for appellants state in their argument that this affidavit set forth full details of the robbery and listed the articles stolen and their values. It was admitted in evidence and covers 67 pages of the record, but counsel did not see fit to properly abstract it, simply reciting that “on pages 412 to 479 of the record is the affidavit of H. R. Cox, subscribed and sworn to on January 17, 1924 and delivered by him to the defendant company, said affidavit setting forth full details of the events of the robbery on December 21, 1923 and of the articles of jewelry lost in that robbery and their values.” The proof of loss requested that assured state “the manner in which the robbery was committed and the names of all persons known or suspected to have been implicated therein.” The proof of loss as submitted to appellee did not state how the robbery was committed or give the names of suspected persons but referred to this statement and affidavit and stated that it was taken by D. F. Secat, adjuster for the Aetna Casualty and Surety Company, which was executed in the presence of Elmore H. Stafford and Ben De Jaeger, chief of police of the city of Moline, Illinois.

In Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, it appeared that the adjuster for the insured sent a notice of the loss to each of the several defendant companies and proofs of loss were prepared on regular forms provided for that purpose and sent to the company within the time specified in the policy, and in its opinion the Supreme Court said: “By the weight of authority, if the insured attempted to comply with the requirements of the policies as to notice and proof of loss, the receipt and retention of the notice and proof without objection constitute a waiver of the insurers’ right later to object thereto as not satisfying the requirement of the policies.” In distinguishing the facts as they appeared in the Weininger case from the facts as they appeared in the case of Feder v. Midland Casualty Co., 316 Ill. 552, the court at page 595 said: “In the Feeler case no written notice of the fire nor proof of loss was given to the insurer. The complainants in that case alleged performance of those conditions and then introduced evidence which tended to show a waiver of the conditions on the part of the defendant. In that situation it is manifest that, since there was no attempt to comply with those requirements of the policy, the insurer could not be estopped from setting up such defense by reason of its failure to insist on a strict compliance with the condition. That case, in our opinion, is not authority for the defendants’ contention. In the case at bar the record presents not a waiver of performance of making proof of loss, but simply a waiver of the manner and form of proof of loss made. The defendants in receiving the proofs of loss, retaining them and failing to object to their form or sufficiency, accepted the proofs as a substantial compliance with the condition and thereby conceded that the complainants had performed this requirement of the policies. Such substantial compliance is sufficient to permit recovery (33 Corpus Juris 17) and may be proved under the allegations of the complainants’ bill.”

Counsel for appellants concede that in the instant case the evidence does not disclose that appellee accepted and retained these proofs of loss without objection. In their argument they say: “We had supposed this proof was in the record . . . after re-examining the record we can not find that this proof was made. It seems inadvertently to have escaped us on the trial.

... If when the case was tried this time the Weininger decision had been available, the matter would have been so focused in our minds that such proof would have been made.” Counsel for appellants then request that if this court deems this question of controlling importance, that they be permitted to make this additional proof in this court invoking as authority for so doing sec. 92 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 220. We do not believe that this provision of the Practice Act is applicable. Here we are reviewing* the action of the trial court in directing a verdict for the defendant at the close of the plaintiffs ’ case. It was certainly never intended that this section of the Practice Act should be so construed as to give counsel two opportunities to prove their cases, one in the trial court and another in an appellate court. While the testimony here does tend to show that there was an attempt by the insured to comply with the provisions of the policy with reference to making proof of loss, the record is silent as to whether appellee accepted the proofs of loss submitted and is silent as to whether appellee retained or rejected them and there is no evidence of a waiver by appellee of the manner and form of proof of loss made. Furthermore, the policy sued on gave the name of the insured as the Cox Jewelry Company. The declaration stated that H. B. Cox and A. B. Cox, doing business under the name and style of Cox Jewelry Company were the plaintiffs. The proof of loss form given appellants by appellee and which was sent to appellee required information over the signature and under the oath of all members of the firm. This was not done. H. R. Cox executed it but A. B. Cox did not. Furthermore, this proof of loss was not complete. It did not give the details of the robbery but referred to an affidavit of H. R. Cox. That portion of this affidavit claimed by reference to be an essential part of the proof of loss is not abstracted and this court should not be expected to examine the record for the purpose of reversing a judgment. People v. Southern Gem Co., 332 Ill. 370.

It is also insisted by counsel for appellee that the evidence offered by appellants failed to prove the averment of the declaration that books of accounts were kept by the assured as provided by the policy. In our former opinion reported in 248 Ill. App. 209, Mr. Justice Jones, in commenting at page 218 upon an erroneous instruction that the trial court had given upon the first trial of this cause, said: “The policy provided that there should be no liability unless books and accounts were kept by the assured and the- loss could be accurately determined therefrom by the company. The instruction contravenes that provision of the policy. Such provisions in insurance policies not only serve to determine the amount of a loss, but, if proper books are kept, they will assist the insurer in obtaining the description of the articles stolen and other information, which might materially aid in their recovery. Such recovery would reduce the. amount to be paid by thé insurer under its liability. This is a substantial right of pecuniary advantage to the insurer, and one which cannot lawfully be taken away from it without its consent. Such a provision in a policy of insurance is not unreasonable, and where the insured with full knowledge of the conditions of the policy enters into a contract of this character, it is one with which he must comply. Niagara Fire Ins. Co. v. Forehand, 169 Ill. 626. ’ ’ Upon the second appeal the opinion of this court was written by Mr. Justice Jett and with reference to this provision of the policy it was stated: “The policy declared upon provides that there should be no liability unless books and accounts were kept by the assured, and the loss could be accurately determined therefrom by the company. It was charged in the declaration that books and accounts were kept up to and prior to the date of the robbery, by means of which said loss could be accurately determined by the appellant. In our former opinion we held that insurance companies have the right to require the one it insures to keep books and accounts, correctly detailing purchases, and showing sales, ready to be produced in the event of loss.”

The evidence discloses that the last inventory of appellants’ stock of goods was taken on June 15, 1923, and every article of merchandise other than diamonds was enumerated upon this inventory which showed the' cost of the article and the selling price. At this time what is spoken of in the record as the perpetual diamond inventory was compiled and each diamond was tagged and given a number and its then market price was fixed by H. B. Cox and this price and also the sale price was noted upon this inventory. After these inventories were made, any diamond which came into the store was entered upon this diamond inventory and when any diamond was sold, a line was drawn through the line of this inventory upon which such diamond was listed. The evidence further discloses that these inventories were kept in a loose leaf ledger in which was also kept the charge and note accounts of appellants’ customers. This ledger and a cash sales register, together with a bank pass book and check book, were the only books kept by appellants except a book in which inventories for the preceding two years were found and also a file book in which all the original invoices showing purchases for two or three years were kept. On the cash register all moneys received from sales of merchandise were rung up and the total was shown on register slips and at the close of the day’s business these slips were filed in the safe and an entry made in the cash book each day of the total amount of the sales for that day, also the amount of cash paid out and the amount of money deposited in the bank. H. R. Cox testified that appellants’ average profit on diamonds was 25 per cent and upon other merchandise forty per cent and continued: 1 ‘ Our sales register was our only record of sales and it recorded the total in dollars and cents of each day’s business. It did not show the specific article sold or give a description of them or their number or their quality. The sales register was the only record of sales and the only thing we recorded in the cash or sales record was the total amount in dollars and cents of each day’s business. The strip merely showed dollars and cents but did not print descriptions and did not show the percentage of profit. All diamonds selling for $25.00 down were included in this percentage. As to other articles of the jewelry company there was no specific record kept of the particular percentage of profit. The strip from the cash register and the sales record about which I have testified were the only records concerning sales. When there was a single transaction respecting a number of different articles, there would be only one amount rung up in the cash register.”

At the time of the robbery then there were no books or records kept by appellants from which it would appear what articles of merchandise or jewelry, other than diamonds were in the store. It is true that the stock of goods on hand at that time would be those inventoried on June 15, 1923, plus those which the invoices showed had been purchased and received between June 15, 1923, and the time of the robbery, less those which had been sold during that period, but there was no book or record containing the description, kind or quality of any article that went out of the store from the date of the inventory until the robbery except the so-called perpetual diamond inventory, which did disclose a line drawn through several items, but there was nothing in the record itself that disclosed what that meant. Mr. Cox testified that this line was made when a diamond was sold but nothing appears upon the record as to when any diamond was sold.

It is therefore apparent from the testimony produced by appellants' that from all their books and records there was no record of articles taken out of the store by way of sales or otherwise from the time of the inventory to the time of the robbery, that an examination of the so-called invoices do not, in many instances, disclose the kind, quality or value of the merchandise which came into appellants’ store and that the perpetual diamond inventory did not, of itself, reveal the quality, quantity or value of the articles therein enumerated. The affidavit of H. E. Cox heretofore referred to and which was offered in evidence by appellants contained this sentence: “This affiant further states that he or assured kept no books or accounts from which- independently of other sources the loss could be accurately determined therefrom by the Aetna Casualty and Surety Co., but that in ascertaining the amount of the loss and the articles taken it will be necessary for this assured to obtain further information from those from whom he has from time to time during the past six months purchased diamonds, diamond jewelry and other like articles for sale by the Cox Jewelry Co.” This portion of this affidavit was not abstracted but is found in the record. From this affidavit and from the other evidence in the record it is apparent that appellants did not keep such books and accounts as the policy required. Such provisions have heen construed to require the insured to keep such records as will enable the insurer to determine its loss therefrom unaided by oral testimony except as to the manner or system of keeping such records. Home Ins. Co. v. Williams, 237 Fed. 171.

Counsel for appellants insist however that this provision of the policy is a condition subsequent and was so recognized by appellee as evidenced by its first special plea; that while their evidence disclosed the books kept by them and their bookkeeping methods and system, they did so only for the purpose of showing the amount of their loss and the manner in which it was arrived at. Under the pleadings, appellee set this provision up as an absolute defense and the burden of establishing such defense was on it, but appellants’ own evidence disclosed facts destructive of their case and with the record in that condition the trial court was justified in directing a verdict. 64 C. J. 474. Helm v. Illinois Commercial Men’s Ass’n, 279 Ill. 570.

We have not overlooked the several motions submitted by counsel for the respective parties herein and which were taken with the case. There was language indulged in by counsel in their respective briefs which should have been omitted. Such language was of no aid to the court in determining the questions presented by this record. Inasmuch, however, as counsel for both parties transgressed the proprieties of the profession in this respect, the motion and cross-motion to strike portions of the respective briefs of counsel will be denied. We have treated appellants’ brief as sufficient to require us to pass upon the merits of this case and therefore their motion for leave to amend their original brief is denied.

The judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Ray C. Carter, Appellee, v. Peoria and Pekin Union Railway Company, Appellant.
    Gen. No. 9,052.
    Opinion filed September 24, 1936.
    E. E. Horton and Joseph A. Weil, both of Peoria, for appellant.
    Mansfield & Cowan, of Peoria, and H. H. Patterson, of Chicago, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

The original declaration in this case was filed on August 6, 1930, and consisted of three counts. In the first and second counts it ivas alleged that on January 11, 1930, the defendant railway company was a common carrier engaged in interstate commerce and that plaintiff ivas employed by the defendant as a switchman engaged in interstate commerce. It was further averred that the defendant unlawfully hauled and permitted to be used a railroad car upon which the plaintiff was at work when said car was not equipped with an efficient hand brake and that by reason thereof, the plaintiff in the due course of his employment, while riding upon said car, attempted to set the hand brake in order to control the movements of said car, but that the hand brake was weak, worn, bent and inefficient and would not hold, but gave way, causing the brake wheel to fly backward and spin around, thus causing the plaintiff to be thrown from said car to the ground, whereby the plaintiff sustained the injuries to recover for which this suit was instituted. During the course of the trial the third count was dismissed. The defendant filed two pleas, first, the. general issue and second, a special plea alleging that the plaintiff was “not of right” an employee of the defendant at the time he received his injuries within the meaning of the Federal Employers’ Liability Act, Ill. State Bar Stats. 1935, ch. 114, ¶ 321 et seq., and the Safety Appliance Act, Ill. State Bar Stats. 1935, ch. 114, ¶ 140 et seq.; that the plaintiff when he applied for employment on December 9, 1929 represented that he had never before been injured and had not consulted any physician for physical disability or injury within a period of five years prior thereto, whereas the facts were that while previously employed he had been seriously and permanently injured and had consulted a physician within said five-year period for serious injuries; that plaintiff’s actual condition constituted adequate cause for the rejection of his application for employment but that the defendant confiding in the false and fraudulent representations of the plaintiff permitted him to occupy the position of switchman, which status was at all times wrongful and a fraud upon the defendant and a peril to its other employees. After the issues had been made up, a trial was had, resulting in a directed verdict in favor of the defendant, given by the trial court at the close of all the evidence. Upon an appeal to this court, we held that the evidence upon the issue raised by the special plea required the submission of that question to the jury and reversed the judgment and remanded the cause for a new trial. Carter v. Peoria & Pekin Union Ry. Co., 275 Ill. App. 298. Thereafter the cause was again tried, resulting in a verdict in favor of the plaintiff for $4,000, upon which judgment was rendered and the record is again before us for review.

It is insisted by appellant that the trial court erred in not directing a verdict in its favor at the close of all the evidence, that it erred in refusing proper instructions and finally that the verdict is manifestly against the weight of the evidence.

The evidence discloses that on December 9, 1929, appellee applied to appellant for work, submitted to a physical examination and on the same day went to work as a switchman in the East Peoria yards of appellant. This yard is a gravity yard consisting of two divisions designated as A and B and separated by lead tracks. In division B there were 41 tracks connected to the lead track by switches and all extending in a northerly direction on a down grade from the lead track and a loaded car, after leaving the lead track, would run of its own momentum through the yard into Washington street in East Peoria. On the evening of January 11, 1930, appellee went to work at 11 o’clock p. m., his regular time. Earlier in the evening the ear in question came into the switch yard upon an Illinois Central freight train and was en route from Taylor, Kentucky to Bock Island, Illinois. In this train there were 40 cars and about midnight 17 of these cars were on the B-yard lead track. The car in question was a steel, open top, battleship construction coal car loaded with coal. It was the fifteenth from the engine and the first movement of the crew was to cut off the last, or seventeenth, car from the engine into track B-36. Carter threw the switch for this car and got on the car and set the hand brake and the car stopped. Cecil Clark was foreman of the switching crew of which Charles Harness and appellee were members, and according to the testimony of Clark and Harness, the next movement after switching the seventeenth car into track B-36 was to switch'cars 15 and 16 into track B-37. Harness testified that he cut these two cars near No. 30 switch and they proceeded along the lead track and entered track B-37. Appellee testified that he got on the rear end of the car in question between 100 and 150 yards down the track after it had left the lead track; that there was no other car coupled to it; that it was his duty to set the brake so that it would stop and so that other cars which might come upon that track would stop when they came in contact with it. Appellee further testified that the hand brake upon this coal car was on the rear end and the brake wheel was of steel, 12 or 14 inches in diameter and about eight or ten inches above the top of the car; that the brake rod or shaft extended from the top of the car to the bottom and the bottom is connected with a chain which is attached to the brake shoes, so that when the chain is wound it tightens up and sets the brakes; that there was a platform at the end where appellee stood operating this brake and this platform was about eight inches or ten inches wide and between two and one-half and three feet in length. Upon the top of this platform was a dog and ratchet and the ratchet was attached to the brake shaft and the dog was attached to the footboard, the0 ratchet wheel being about six or eight inches in diameter. Appellee further testified that he had his lantern on his left arm and a wooden club about two and one-half feet long in his right hand, which was "furnished him by appellant, that he tightened the brake wheel as tight as he could, with his hands and then put the club in between the spokes of the brake wheel and pulled it from the left to the right about a three-quarter turn, in order to further tighten the brake and had his right foot set against the dog and shoved it in but the dog did not engage the teeth of the ratchet and the brake wheel was released and the club came around and hit him on the left arm, and the brake wheel hit him on the left shoulder and he was knocked off of the car, and landed in the middle of the track while the car proceeded down the track some distance. He further testified that he observed that the brake did not slacken the" speed of the car as he tightened it and although he was “knocked out” temporarily he recovered in a few minutes and then picked up his club and lantern, walked back some distance and met Mr. Clark, his foreman. He further testified that before he met Clark, he observed the car and noticed that it had a bent brake shaft and he reported this condition to Mr. Clark; that after he was thrown from the car, he realized that he was hurt in the left arm, in the left leg and in the back between his shoulders, but he continued working throughout the night and left at his regular quitting time, which was 7:00 a. m. the following morning. He further testified that about four o ’clock in the afternoon of that day, after having spent most of the day at his home and in bed, he went to the yard office of appellant and told them that he would be off that night and about 11:00 o ’clock that evening he was taken to the Methodist Hospital in Peoria.

On the following morning, Dr. Meloy, appellant’s physician, examined him and testified that appellee complained of pain in his shoulder, neck and back, but in locating his pain he was vacillating; that he had lost control of his emotions, would swing his arms, tall? incoherently and would not stay in bed; that he diagnosed his case as hysteria and prescribed a sedative, hot applications and a massage. Dr. Meloy further testified that his examination of appellee disclosed no Mack or blue spots, no marks, scratches or abrasions of any kind and no swelling of evidence of any bruise on his back, but there was a slight swelling on the elbow; that at the time he examined him in connection with his application for employment on December 9, 1929, he noticed a not abnormal deviation of his spine and observed the same condition on the morning following his arrival at the hospital. Dr. Meloy further testified that he saw appellee every day while he remained at the hospital, which was until January 28, 1930, and that for the first three days his condition remained the same, but thereafter he regained control of his emotions and after appellee left the hospital he reported to Dr. Meloy many times but at no time was the physician able to discover anything the matter with him other than that he was hysterical for the first few days while in the hospital. Appellee testified that when he left the hospital he could hardly use his left arm, shoulder or left leg and received no further attention from Dr. Meloy. He further testified that since the accident he had done no manual labor; that the condition of his back and shoulder was worse at the time he testified in 1935 than it ever had been; that previous to the time of the accident he had not had any trouble with his back, leg or shoulder, but since then he could not lift anything or walk any distance.

Charles Harness testified that after the two cars had been switched into track B-37, he did not again see appellee until all of the remaining cars had been switched out; that appellee came up near switch No. 30 and got on the footboard of the switch engine; that he then said that he was setting the brake on a car in track 37 and that the dog slipped from the ratchet, spraining his arm and shoulder; that he said nothing about being knocked off the car or about a bent brake shaft nor made any complaint of pain in his back, had no snow on his clothes, bore no evidence of any injury and continued to work in his usual manner the rest of the nig'ht.

Cecil Clark, the foreman of appellee’s switching crew, testified that he observed the fifteenth and sixteenth cars as they were cut and from the lig*hted lantern in appellee’s hand he knew he got on the rear car; that he saw the cars stop and later appellee came up to the lead track, got on the footboard of the engine and told this witness that in setting the brake the club slipped out of his hand and the dog slipped out of the ratchet and the club came around and hit him on the shoulder. He said nothing about being knocked off the car, did not complain of his back, worked the rest of the night — that is from about one o’clock a. m.-until seven a. m. — was. able to do his work, did do it, appeared to witness to be all right and the witness observed no snow on his clothes or anything unusual in his appearance.

The evidence further discloses that in the written application for employment and in an oral statement made at the same time to the chief clerk of appellant’s superintendent of employment, appellee stated that he had not consulted any physician or surgeon for sickness, injury or disability of any nature during the pre-ceeding five years and had not been sick within that period of time. In his written application, he listed the C. B. & Q. Railroad, the Terminal and the Frisco as roads with which he had been employed. He stated incorrectly the dates when he entered and left the service of these railroads and falsely stated in his application that he was born on September 15, 1900, while he admitted upon the trial that he was born in 1892. In his application he stated that he entered the service of the C. B. & Q. Railroad on August 4, 1924, and left its service on November 22,1927, but the facts are and he so testified that he entered the employment of this railroad in 1922 and continued until November, 1926, at which time he was injured. He stated, at the time he applied for employment with appellant, that he had not consulted a physician and had not been sick at any time during the preceding five years. This was not true. He had consulted a physician and had been sick during the preceding five-year period and on November 22, 1926, he was injured while in the employ of the C. B. & Q. Railroad and had a claim against that company, which he settled without an attorney for a substantial sum. He testified he was unable to state the amount the company paid him, although he said it was more than $6,000 but not as much as $8,000.

Appellee testified that in 1920 he suffered a heat stroke and the evidence is further that for 10 years prior to the occasion in question appellee suffered from a nervous affliction, referred to by the several physicians who testified as hysteria. The lay witnesses who testified that they had observed appellee at these times spoke of them as seizures, attacks or spells, and to these appellee would be subject at irregular periods. At these times appellee would complain of pain in the back of his head and neck, he would lose consciousness, talk incoherently and wave and throw his arms. Medical treatment consisted of a hypodermic of hyoscine, morphine and caffeine, which, when administered, relieved the patient, quieted him down and put him to sleep. Dr. Thompson was appellee’s home physician at Cypress, Illinois, and he was called by appellant as a witness and he testified that he had treated appellee on many occasions for this affliction and in between the attacks he prescribed for him'and gave him luminol and atrophine. The last attack which this witness recalled was in 1928, while appellee was working on a school building at Cypress. In April, 1925, four years before appellee went to work for appellant, and after one of these attacks, appellee was examined by Dr. Thompson and at the request of appellee’s father he was taken to Dr. Wolf of Cairo, Illinois, who gave him a complete physical examination and the examination of these physicians disclosed a slight deviation of the spine, but they found no dorsal dislocation. During the years 1924 and 1925 Dr. Thompson testified that he treated him on the average of five or six times each year and in 1926 Dr. Thompson treated appellee for an injury to a testicle. He further testified that between 1920 and 1925 he saw him very frequently.

Dr. August Heller of Centralia, Illinois, testified that on December 9, 1926, he was division surgeon for the C. B. and Q. Railroad and that appellee came to his office in Centralia and advised him he had been injured while switching cars on November 21, 1926, and complained of pain in the groin and pelvic regions. Dr. Heller examined appellee and found his right testicle badly swollen and a deviation in the alignment of the spinal processes and sent him to St. Mary’s hospital in Centralia, intending to take X-ray pictures, but ap-pellee walked out of the hospital the same evening before Dr. Heller arrived and Dr. Heller did not see him again until the trial of this cause.

Dr. John W. Connell, an experienced physician, surgeon and X-ray Roentgenologist who was connected with the Peoria hospital in 1930, took six X-ray pictures of appellee at the hospital at Dr. Meloy’s request on January 14, 1930. These pictures were admitted in evidence and with other X-ray pictures taken by Dr. Pease, whose testimony is hereinafter referred to were read to the jury by Dr. Connell. None of them, according to the testimony of Dr. Connell, disclosed any fracture or evidence of any fracture of appellee’s shoulders, chest, ribs, vertebrae or processes. All the pictures disclosed that the spine of appellee was not dislocated but did show a simple deviation from an absolutely straight spine. In the opinion of the several witnesses, this condition is present in about 50 per cent of the people and in the case of appellee was of long standing. Dr. Magee and Dr. Goodwin, both experienced in X-ray work, testified for appellant and after having examined the several X-ray pictures of appellee submitted in evidence by appellant and by appellee stated that they were unable to find, from an examination of any of the pictures, any evidence of any fracture or dislocation. Dr. Sutton and Dr. Bellas also testified on behalf of appellant and stated that on February 17, 1931, they had each given ap-pellee a thorough physical examination and they found nothing wrong with him and no evidence of any injury.

On behalf of appellee, Dr. L. W. Pease testified that appellee came to his office in Chicago and there, at the request of appellee’s counsel, he examined him and took some X-ray pictures of him on the 6th and 11th days of February, 1930,. According to the testimony of this witness, he found appellee normal except for some swelling over the fourth, fifth, sixth and seventh dorsal vertebrae and some swelling over the first lumbar vertebrae; that the pictures he took disclosed a fracture through the spinal end of the seventh rib. Dr. C. B. Farnum also testified for appellee to the effect that he examined appellee at his office in Peoria on April 15, 1933, and his examination disclosed a slight deviation in the middle portion of the chest region in the spine. He read Exhibit C, which was one of the X-ray pictures taken by Dr. Pease, and he stated that it disclosed a fracture of the seventh rib close to the spine.

Counsel for appellee argue that there was no testimony offered to contradict the testimony of appellee as to the manner in which the accident occurred and that the facts in the case of Anderson v. Chesapeake & Ohio Ry. Co., 352 Ill. 561, are identical with the facts in the instant case and under that authority this judgment should he affirmed. In the Anderson case it appeared that a car had been cut off from the locomotive and the plaintiff got on the brake step to set the hand brake and thereby control the car’s momentum. Because of the fact that the dog on the ratchet wheel was loose, he had to push it in to hold it in place and when he turned the brake wheel around to a certain point it would suddenly stop and thereby prevent the brake shoes from engaging the wheels of the car. Anderson was therefore unable to check its speed and it collided with other cars standing- on the switch and as a result he was thrown and received serious injuries. In the Anderson case there was proof to the effect that the brake did not work because the dog on the ratchet wheel was loose, that its failure to work was the proximate cause of the accident and injury and that therefore there was a violation of the Safety Appliance Act, Ill. State Bar Stats. 1935, ch. 114, ¶ 140 et. seq., which required the brake mechanism to be efficient and in good working order. In the instant case it is true that appellee testified that the top of the brake staff was bent so badly that the wheel would just clear the top of the car, but if this was true, there is no connecting up of this fact with any failure of the brake to work efficiently. Furthermore in the Anderson case the physical facts were that the brakes did not hold and as a result thereof there was a collision and this demonstrated their inefficiency, while in the instant case the physical facts disclosed that the brakes produced the expected results.

Collins v. Great Northern Ry. Co., 181 Minn. 125, 231 N. W. 797, was a case where the facts were similar to those in the instant case. There the plaintiff was a switchman, riding a loaded box car in the nighttime which was traveling by gravity to a particular track. He testified that as he started down the incline he tightened the hand brakes, but they did not take hold; that he used a club in the brake wheel and as he gave one last reef on the brake and on the club, something let go and he fell. The evidence in the Collins case disclosed that after the accident the brakes were found to be tightly set and then worked properly. In the course of its opinion the court said: “The claim that the brakes were inefficient must be proved. It cannot rest on theory alone. The record leaves the cause of the accident uncertain. The most favorable view for plaintiff is that it rests in conjecture as to whether it was inefficient brakes, the fault of the plaintiff, an unaccountable or unavoidable accident. The brake club may have slipped. The cause of the accident must be proved. Unless the cause is shown affirmatively, there can be no recovery.” So in the instant case appellee, under the provisions of the statute and under the allegations of his declaration, must prove that this car was not equipped with efficient hand brakes.

In the instant case the evidence discloses that the purpose of appellee’s action in operating the brake on this coal car was to set the brakes and thereby stop the car. The reason why the car should be stopped was to prevent it from running off the switch track into Washington street and also to have, on this switch track, a car with tightly set brakes so that other cars might be sent against it without the necessity of any switchman riding such additional cars. Appellee himself testified that the car stopped about one hundred yards down the track from the place where he was thrown off and that as soon as he recovered consciousness he walked down where it was and saw that it had a bent brake staff. The uncontradicted evidence is that other cars were kicked in on this switch that night and that it held them. Here the physical facts are that at a time when appellee insists that the brakes had released, they functioned. The prawl or dog did hold in the ratchet wheel and this heavily loaded coal car not only stopped on a down grade hut was so firmly braked that other cars coming in contact with it did not cause it to resume its journey down the switch track. The evidence in this record is further that an inspection was made of this car when it came into the Peoria yards a couple of hours prior to the time ap-pellee went to work on the evening in question and two witnesses who examined the car testified that there was no mechanical defect in the brake equipment, that neither the brake staff nor wheel was bent and that it operated efficiently. The records of appellant disclose that no repairs were made on this car while in Peoria upon this occasion and O. M. Pierson, who inspected this car at Galesburg when it arrived there from Peoria on the following day, testified that he set the brake on this particular car, examined the brake shoes and observed that there was nothing wrong with the brake equipment, but that it released properly and worked efficiently and there was no evidence of any recent repairs having been made.

In our former opinion we said that the fact that appellee gave appellant the correct name of the several railroads for which he had worked tended to refute the presumption that he had any deliberate intent to deceive appellant. Upon the second trial, the record of which we are now reviewing, there is evidence that in. addition to the written application made by ap-pellee, he made oral statements to the chief clerk of the superintendent’s office of appellant and to the examining physician that he had consulted no doctors and had had no illness of any kind during the preceding five years. Appellee in rebuttal denied that he had so told Mr. Keeler, the chief clerk, but did not contradict the testimony of the examining physician. In our former opinion we commented upon the fact that ap-pellee passed the physical examination and cited with approval Powers v. Michigan Cent. R. Co., 268 Ill. App. 493, and held that upon a motion to direct a verdict the trial court has no power to weigh and determine the preponderance of the evidence and that where there is legitimate evidence tending to prove a cause of action it is the duty of the trial court to submit the case to a jury. We adhere to what we there said and are of the opinion that in view of our former decision the trial court properly refused appellant’s peremptory instruction. We are of the opinion, however, that the verdict is manifestly against the weight of the evidence.

Under the provisions of the Safety Appliance Act, Ill. State Bar Stats. 1935, ch. 114, ¶ 140 et seq., if the brake mechanism upon this coal car was efficient and in good working order, appellee could not recover for a violation of that act. Anderson v. Chesapeake $ Ohio Ry. Co., supra. Appellee was the only one who testified how the accident occurred. When he reported it to Clark, his foreman, he said the brake club slipped out of his hand and this testimony of Clark is not denied by appellee. If what he said to Clark was true and if the brake club did slip out of his hand, the accident was not due to an inefficient brake as charged and there can be no recovery. We have read this record with care and have set forth enough of the evidence to show that the record is replete with instances which disclose appellee’s disregard for the truth. His testimony is also refuted by the physical facts as we have shown. The verdict of the jury is manifestly against the weight of the evidence and the trial court erred in not setting aside that verdict. The judgment appealed from will therefore be reversed and the cause remanded, and in view of this conclusion it will be unnecessary to consider the remaining contention of appellant.

Reversed and remanded.


text:
    The First National Bank of Ottawa, Appellee, and Smith Trust and Savings Bank, Appellant, v. Kay Bee Company et al., Defendants.
    Gen. No. 9,095.
    Opinion filed September 24, 1936.
    McCalmont, Ramsay & Bull, of Morrison, for appellant.
    Hibbs & Pool, of Ottawa, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On October 29, 1932, Kay Bee Company, a corporation, executed its trust deed by the provisions of which it conveyed to the First National Bank of Ottawa, as trustee, certain described premises in Whiteside connty. This trust deed was given to secure the payment of two bonds, numbered one and two respectively, each payable to bearer, each for the sum of $25,000, each due July 1,1938 and each bearing six per cent interest, interest payable semiannually and evidenced by coupons attached to said bonds. Bond No. 1 was made payable at the First National Bank of Ottawa and bond No. 2 was made payable at the Smith Trust and Savings Bank at Morrison, Illinois. At the time of the execution of the trust deed and bonds, the Kay Bee Company was indebted to the First National Bank of Ottawa and also to the Smith Trust and Savings Bank, and in order to secure such indebtedness and to secure any further or additional loans which said banks might make to said Kay Bee Company, the said Kay Bee Company delivered to the Ottawa Bank Bond No. 1 and to the Morrison Bank, bond No. 2, said bonds to be held by said respective banks as collateral security for any indebtedness of the Kay Bee Company which said banks might hold. At the time this foreclosure proceeding was instituted the Ottawa bank held said bond No. 1 as collateral security for the payment of $24,000 and interest evidenced by eight principal notes, each for the sum of $3,000. The Morrison bank held, at that time, bond No. 2 as collateral security for $16,500 and interest evidenced by six principal notes. Default having- been made in the provisions of the trust deed, the banks instituted this foreclosure proceeding. On March 20, 1936, a decree of foreclosure and sale was rendered which found that the amount due the Ottawa bank was $24,956.50 and that the amount due the Morrison bank was $17,117.25. The decree then directed the mortgagor to pay these sums, together with costs, within 90 days and provided that in default of so doing then the mortgaged premises should be sold by the master in chancery. The decree then provided that if the sum realized from the sale, after the payment of costs and solicitor’s fees, be insufficient to pay the respective amounts due the plaintiffs, then the master should divide the remainder, after the payment of costs, between the plaintiffs in the proportion that the amount due each bears to the aggregate amount due both plaintiffs. By agreement of the parties, the question of the correctness of this portion of the decree has been certified to this court, it being the contention of the Morrison bank that in the event of a deficiency, the proceeds of the sale should be distributed equally until the indebtedness due the Morrison bank should be paid in full. In other words, the Morrison bank insists that the distribution should be made on the basis of the proportion which the bond of each plaintiff bore to the total amount of the bonds. The Ottawa bank insists, and the chancellor held, that the proceeds of the sale should be distributed in the proportion that the amount due the respective banks bears to the total amount due both banks.

Counsel for the Morrison bank cite a number of cases from other jurisdictions, among them Georgetown Water Co. v. Fidelity Trust and Safety Vault Co., 117 Ky. 325, 78 S, W. 113. In that case it appeared that on April 15,1890, the Water Company executed a mortgage to the Fidelity Trust and Safety Vault Co., as. trustee, to secure 70 bonds of $500 each, due in 20 years. On November 6, 1891, the Water Company borrowed from the Fidelity Trust & Safety Vault Co. $10,000, executing its note due in six months with the owners of the stock of the company as sureties and also securing the note by pledging 54 of the mortgage bonds. The Water Company bought certain machinery from the Central Thomson-Houston Company and delivered to it 10 of the mortgage bonds, which were accepted by this company at their par value in full payment of the machinery. Thereafter in 1898 the Fidelity Trust & Safety Vault Co., as trustee, instituted foreclosure proceedings. It further appeared that after the original note of $10,000 to the Fidelity Trust & Safety Vault Co. matured, one of the sureties (Mitchell) paid it and the 54 bonds were turned over by the bank to him and he transferred them to other parties. The court held that in legal effect the bonds were promissory notes and each assignee took them subject to prior equities; that the 10 bonds delivered to the Thomson-Houston Co., and the 54 bonds delivered to the Trust Company as collateral to the note of $10,000 were the only bonds which constituted a lien on the property; that after the payment of certain prior claims about which there was no controversy, it was ordered that 10/64ths of the fund remaining should be applied to pay the 10 bonds sold to the Central Thomson-Houston Co., and that 54/64ths should be used to pay the 54 bonds pledged to the Trust Company to secure its note. In the course of its opinion the court said: “The trust company had the right to look to the entire proceeds of these bonds for the payment of its debt, and when Mitchell paid the debt as surety, he succeeded to all the rights of the trust company and had the right to look to the entire proceeds of the 54 bonds for the repayment of his money and interest. The remainder of the proceeds of these 54 bonds, after the payment of Mitchell’s debt, with interest, is, as between it and Mitchell, the property of the water company, for Mitchell has no claim on them except the lien for the repayment of his money with interest. If the 10 bonds held by the Central Thomson-Houston Company are not paid in full by 10/64ths of the net proceeds of the sale above directed to be paid upon them, the remainder of the principal and interest of these bonds should be paid in full out of the funds set apart to the water company after the payment of Mitchell’s debt out of the proceeds of the 54 bonds as above indicated. For the water company is the obligor in the bonds held by the Central Thomson-Houston Company, and must discharge its obligation out of the funds coming to it before it can be allowed to withdraw any part of the proceeds of the sale. The substance of the situation, as between the Central Thomson-Houston Company and the water company, is that the former company holds the promise of the latter to pay it $5,000, secured by a lien on the property in contest, and, as between the two, the water company’s right to the proceeds of the sale is subordinate to the lien of the Central Thomson-Houston Company. When all the bonds are thus paid off, so far as they are a valid lien on the property, the remainder of the fund, if nothing else appeared, would be the property of the water company.” What this decision held was that the holder and owner of 10 bonds of the par value of $5,000 and who had accepted them at par and a creditor who held 54 bonds of the par value of $27,000 as security for a $10,000 indebtedness were entitled, as between each other, to share in the proceeds upon foreclosure of the mortgage, in the proportion that the principal sum of the several bonds held by each creditor bore to the aggregate principal of all the outstanding bonds which constituted a lien upon the property covered by the trust deed executed to secure their payment. The facts in that case are distinguishable from the facts in the instant case. In that case the Thomson-Houston Company was a purchaser of 10 of the bonds of the Water Company for value, while here both creditors held the bonds as collateral security only and they were issued by the mortgagor Kay Bee Company only for the purpose of securing the payment of the respective amounts which the mortgagor then owed the Morrison and Ottawa banks, together with such sums as each bank might advance to the mortgagor in the future.

In Worth v. Marshall Field & Co., 240 Fed. 395, also cited by counsel for the Morrison bank, it appeared that in 1902 the Worth Mfg. Co. mortgaged its property to secure the payment of bonds aggregating $100,000, to which six per cent semiannual interest coupons were attached. It sold $26,000 of these bonds and pledged others to secure various sums borrowed by it. To one of its creditors it pledged, shortly after the execution of the mortgage, $15,000 of its bonds. To this creditor it owed exactly $15,000 and up until June 1, 1910, it paid the interest regularly upon its principal indebtedness. The controversy involved the interest coupons on these pledged bonds and it was held that so long as the debtor paid the interest on the $15,000 it owed, no interest on the bonds could accrue for the reason that the bonds represented no other principal debt than that upon which interest had been paid and that after the debtor had become a bankrupt, the holder of the bonds could not recover from the bankrupt estate the amount of the interest coupons attached to the bonds, since there was no consideration received by the corporation, except the debt on which the agreed interest had been paid.

Counsel for the Morrison bank also call our attention to a number of other authorities from other jurisdictions, but we have examined practically all of those cited in their brief, but none of them is decisive of the question here presented. For instance in Newport & Cincinnati Bridge Co. v. Douglass, 12 Bush (Ky.) 673, the court said that the sale by Masonic Savings Bank and the Western Bank of bonds to themselves which they held as collateral security vested title in them and they were entitled to enforce their rights as owners for value, and it was held that bonds which were held as collateral security should only be paid to the extent necessary to satisfy the debts for which they were held and no further. And in Equitable Trust Co. v. Great Shoshone & Twin Falls Water Power Co.. 228 Fed. 516, it was held, what is conceded to be the law in this State, that on the distribution of the proceeds of a sale upon the foreclosure of a corporate deed of trust, one holding secured bonds as collateral security cannot demand an amount in excess of the actual indebtedness due. Such is the law in this State. Peacock v. Phillips, 247 Ill. 467. In that case it appeared that Lillie M. Phillips was the owner of the premises known as 151 Astor street in Chicago and being* indebted to the Chicago Savings Bank and Trust Co. in the sum of $2,500, executed a note for that amount and she, with her husband, also executed a note for $4,000 payable to their own order and indorsed the same in blank. They also executed a second mortgage upon said premises to secure the payment of this $4,000 note and delivered this note and mortgage to the bank as collateral security for the payment of their $2,500 note. On April 29,1907, this note having matured and not being paid, the bank sold the collateral security to J. Arnold Scudder (who knew all the circumstances of the pledge) for $2,530.62, being the amount due the bank. Thereupon the bank canceled the $2,500 note and delivered it to Mrs. Phillips. In a proceeding by the owner of the first trust deed to foreclose the same, he, Scudder, filed his cross-bill, insisting that he was entitled to receive the full amount of his $4,000 note and interest thereon. In refusing to sustain this contention, the court held that the bank might have foreclosed the mortgage pledged to it, but the equities between the parties would have forbidden a decree for any more than the amount due on its $2,500 note, that while the contract between Mrs. Phillips and the bank conferred upon the bank the power of sale and enabled the bank to do an act to obtain payment which could not otherwise have been done, that such a grant of power to sell did not enable the bank to confer a greater right upon the purchaser with full notice of the facts and circumstances and the extent to which the bank could enforce the obligation, than the bank would have had in case of foreclosure.

It is argued, however, that when the Morrison bank received the bond of the Kay Bee Company in the principal sum of $25,000 and which it, the bank, accepted as collateral security, it did so knowing that this note was secured by a mortgage to secure the payment of $50,000 and that as its bond represented one-half of that amount, its lien attached to one-half of the property mortgaged and that upon a sale of that property it should be entitled to receive one-half of the proceeds in the event that one-half of such proceeds should be required to discharge the amount found to be due it upon its principal notes. The answer to this argument is that the lien of the Morrison bank did not, at any time, attach to one-half of the mortgaged property. The relationship between both the banks and the Kay Bee Company was, from the time the bonds were pledged, that of mortgagor and mortgagee. Each bank recognized this and foreclosed its lien as it had a right to do. Keither bank sold its collateral and the trust relationship which each bank bore to the property pledged as collateral never came to an end. What each bank held at the time this foreclosure suit was instituted was a lien upon the property mortgaged and that lien was measured by the amount due each bank respectively upon its principal notes. The facts, therefore, in the instant case are distinguishable from the facts in those cases which define the duties and obligations of the holders of collateral security after the collateral has been sold to satisfy the pledgors ’ debt as by such sale the collateral loses its character as collateral.

In Quindry on Bonds and Bondholders, Yol. I, section 333, at page 434, the author says: “Where bonds are hypothecated as security for a claim of a much smaller amount than the face of the bonds, a purchaser, who buys the claim at its face and takes with it the hypothecated bonds and represents his interest to be the amount of the claim, permitting others to proceed with that understanding, is estopped from claiming a greater amount in the proceeds of the foreclosure sale. The time to raise the question as to whether bondholders are the absolute owners or hold the bonds as collateral is during the litigation prior to the decree of foreclosure, although it may be reserved until distribution where the corporation is insolvent and makes no defense. One holding secured bonds issued and delivered by the maker as collateral, cannot demand an amount in excess of the actual indebtedness due him, out of the proceeds of a foreclosure sale. But, the rule is otherwise where bonds held as security are hypothe-cated, by purchasers, rather than by the maker of the bonds. In such cases, the holders of the bonds as collateral will share in the proceeds of the sale in proportion to the amount of the bonds held by them, and not in proportion to their claims.”

The rule laid down by this author is that where bonds are hypothecated by the maker, then the holders of such hypothecated bonds will share in the proceeds of a sale in proportion to the amount due them by virtue of their several respective claims. This is equitable and just and inasmuch as the decree in the instant case so provided, it should be affirmed.

Decree affirmed.