text:
    Robert Caruso, Minor, by Michael Caruso, His Father and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,944.
    Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed May 28, 1940.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Adam E. Patterson, Sydney R. Drebin and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Ryan, Sinnott & Miller, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Eobert Caruso, a minor, by his father and next friend, brought suit against the City of Chicago and South Shore Sheet Metal Works to recover damages for injuries sustained through a fall on the sidewalk in front of the McLaren School, in Chicago, upon which certain construction work was then in progress. During the trial of the cause South Shore Sheet Metal Works paid plaintiff $4,500, took a covenant not to sue and was dismissed from the case, which then proceeded against the City of Chicago as sole defendant and resulted in a verdict and judgment for $5,500, from which the city appeals.

The accident occurred at about 3:30 o’clock in the afternoon of October 6, 1937. Plaintiff was then just under 10 years of age. He was a student at the John McLaren grade school on the day of the accident. The school is located at the northwest corner of Laflin and Flournoy streets, Chicago. For several days prior to the accident the city, through a contractor, had been repairing the roof of the school. In the course of the repair work, asphalt shingles, slate and rubbish of various kinds accumulated on the grounds around the school and on the sidewalk in front of where the work was in progress. To guard against accidents due to the accumulation of rubbish a triangular area on the sidewalk in front of the school was roped off, the rope running from the fence to a “No Parking” sign about 18 inches from the curb, and then back again to the fence. Within this triangular area there was a considerable accumulation of debris from the roof, and some of the material had been permitted to accumulate on the outside of the rope, so that at the time of the accident shingles and other material were scattered-over the sidewalk indiscriminately beyond the protected area. This pile of rubbish had been accumulating for several days.

After adjournment of school on the day of the accident plaintiff and four other boys were proceeding to the Y.M.C.A., which was in a northwesterly direction from the school. They first went to the home of another boy on the east side of Laflin street, then crossed over to the northwest corner of Laflin and Flournoy and started running west along Flournoy street, with plaintiff in the lead. He was proceeding on the outside of the sidewalk near the curb, with the intention of passing around the rope between the “No Parking” sign and the curb. Just before reaching the sign he tripped over one of the shingles lying scattered on the sidewalk outside the roped-off area, fell against the rope and was thrown down upon the iron base of the sign. This base was fastened to the sidewalk by a number of large bolts, one of which had been left projecting upward for a considerable distance. Plaintiff’s head struck this bolt, and his skull was fractured, the end of the bolt being driven through both tables of the skull and into the brain substance. He was picked up, taken to his home, and after the wound was externally cleansed removed to the Cook county hospital, where the wound was sutured and antitetanus serum administered. He was thereafter removed to his home. His condition having failed to improve a physician was called and he was taken to the Garfield Park hospital the following day. X-rays showed a depressed skull fracture and an operation was decided upon. The surgeon who opened the skull removed the dirt, debris and bone fragments which extended through the dura mater into the brain tissue. The wound was sutured and a drain inserted. After about five months of discharge the wound healed. However, the bone substance did not grow again where it had been removed in the operation, leaving an area the size of a quarter where the brain is covered only by skin fascia. The pulsations of the brain can be readily seen through the opening and felt with the hand. Plaintiff wears a brace continuously to protect the brain. When he was finally able to return to school he was sent to the Spaulding school for crippled children and is transported to and from school in a bus. Physicians testified that the process of healing had gone as far as it ever can, and that no further bone growth may be expected. Since the accident plaintiff has exhibited many of the symptoms which physicians describe as being characteristic of a brain injury, namely, nervousness, headaches, difficulties with his eyes, restlessness in sleep, dizziness and inability to walk steadily. His doctor bill was $941, and his hospital expense $85.

It is urged, but not argued extensively, that plaintiff failed to prove negligence on the part of the city, and also that he should not be permitted to recover because he was guilty of negligence contributing to his own injury. Numerous witnesses testified pro and con to the circumstances under which the accident occurred, and these questions of fact were submitted to the jury under instructions which are not questioned. It was thus incumbent upon the jury to determine the city’s liability, and we think the verdict is amply sustained by the evidence.

It is further urged that the verdict was grossly excessive, and that the amount of $4,500 which plaintiff received from the South Shore Sheet Metal Works for a covenant not to further prosecute his suit against it should be deducted from the amount awarded. We have already indicated the nature and extent of plaintiff’s injury. It is reasonable to suppose that he will be required to travel through life with an opening in his skull, with the brain protected only by a skin fascia grown over the opening, and there is abundant evidence to show that although the wound healed, the usual complications from brain injuries were present up to the time of the trial and have seriously and perhaps permanently impaired plaintiff’s health.

The principal ground urged for reversal is that the sum received by plaintiff from defendant who was dismissed under a covenant not to sue should have been deducted from the amount awarded by the jury. The record shows that after South Shore Sheet Metal Works had paid plaintiff $4,500 during the course of the trial and taken a covenant not to sue, the jury was advised of the circumstances by the court, under a stipulation which appears of record, as follows: ‘ ‘ The Court: It is agreed by the counsel that the reason of the dismissal of the suit was that on that morning the South Shore Sheet Metal Company in consideration given to it by the plaintiff of a covenant not to sue paid the plaintiff the sum of $4500. Now, then, the reason of that covenant not to sue rather than a plain dismissal or a plain release in that consideration is that under the law of this state there being two claimed joint tortfeasors or two wrongdoers, a release of one releases all, but a covenant not to sue does not release the other joint tortfeasor. The jury should be acquainted with the fact that during this trial a consideration of $4500 was paid by that defendant to the plaintiff.” Defendant offered no instruction in connection with this settlement and none was given. Upon argument, however, defendant’s counsel again called the jury’s attention to the amount paid plaintiff by South Shore Sheet Metal Works, and advised them that defendant had been dismissed from the case, and argued as follows: “When you take into consideration all of this evidence here in this case, and carefully consider it, take into consideration the payment of forty-five hundred dollars, dismissal of the suit against the other defendant, the contractor in this case who was repairing the roof of the school building, take all the facts and circumstances into consideration here, all that has occurred, ...”

It thus appears that the subject of payment by the joint tort-feasor was brought into the case by defendant, was fully explained by the court and argued to the jury by defendant, who urged it to give credit for the payment and suggested that the $4,500 paid was all that the injury was worth.

In regard to the liability of joint tort-feasors, the rule is well settled that each wrongdoer is responsible for the whole amount of damages, ‘ ‘ and that there is no such thing as apportioning the damages among joint wrongdoers.” (Devaney v. Otis Elevator Co., 251 Ill. 28.)' In conformity with this rule the city is liable for the entire amount of damages sustained by plaintiff, and there can be no apportionment of these damages between the city and the joint tort-feasor who is no longer a party to the case. The procedure followed in this case was precisely the same as in the case of Onyschuk v. A. Vincent Sons Co., 277 Ill. App. 414. That case was decided by this division of the Appellate Court, and the opinion was written by Mr. Justice Gridley, who later presided at the trial of the case at bar. In that proceeding the evidence disclosed that plaintiff had received $1,200 on account of the suit from A. Vincent Sons Company, one of the defendants. The jury was advised of the payment and an instruction was offered charging the jury that the amount paid should be deducted from the verdict. This instruction was refused and we approved the ruling of the court. In affirming the judgment we pointed out that “there is nothing in the present record to suggest that the jury, in rendering its small verdict in plaintiff’s favor . . . did not take into consideration said sum so received by plaintiff.” In view of the stipulation of the parties in the case at bar, whereby the court informed the jury fully of the settlement made by South Shore Sheet Metal Works to plaintiff, the delivery of a covenant not to sue, with full explanation of its legal import, and the subsequent argument of defendant’s counsel, wherein he requested the jury to take into consideration the amount paid plaintiff in arriving at its verdict, it would be idle to arg’ue that the jury was not fully apprised of the settlement or that it did not take into consideration the sum of $4,500 received by plaintiff. It is reasonable to suppose that the jury in awarding plaintiff the further sum of $5,500 intended this amount to be in addition to the $4,500 already received, and that it considered the injury sufficiently serious to warrant the additional amount.

The case was fairly tried, there is no complaint as to any instructions or the admission or refusal of evidence, and we find no convincing reason for reversal. The judgment of the superior court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Katie Stella, Appellant, v. Paolo Mosele et al., Appellees.
    Gen. No. 40,984.
    Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed May 28, 1940.
    Taylor, Cuttone, Partridge & Parker, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    Defrees, Buckingham, Jones & Hoffman, of Chicago, for appellee; Vincent O ’Brien and John Merrill Baker, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

By this appeal plaintiff challenges the jurisdiction of the superior court, sitting in equity in a foreclosure proceeding, to assess as damages the costs, expenses and attorneys ’ fees of a mortgagor who succeeded in having reversed on appeal to this court an order appointing a receiver for property under foreclosure.

Plaintiff had obtained an order appointing a receiver upon the face of the complaint. On appeal of Dominick Varraveto, one of the defendants, the order was reversed by this court in Stella v. Mosele, 299 Ill. App. 53. On mandate filed Varraveto had the,order vacated and filed a petition in the foreclosure proceeding asking that his expenses, including attorneys’ fees incurred in prosecuting his appeal, be assessed as costs of the foreclosure proceeding. The petition was allowed, Varraveto.’s damages were assessed at $247.35, and taxed as costs against plaintiff, and it was ordered that execution issue thereon.

The order appointing the receiver required plaintiff to file bond in the sum of $200. The principal ground urged for reversal is that the statute requiring the giving of bond to pay damages for the wrongful appointment of a receiver does not vest equity with jurisdiction to assess those damages, and that a court of equity may not assume such jurisdiction but will require the parties to resort to an action at law where trial may be had by jury.

Plaintiff takes the position that, under the general rule, costs may not be taxed by the court or the clerk except as provided in ch. 33, § 18 (Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.055]), and it is argued that, in the absence of statutory provision, damages, including attorney’s fees and the necessary expenses incurred in procuring the reversal of the receivership order, cannot be assessed as costs in, the foreclosure proceeding.

Ch. 22, sec. 1, par. 54 (Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 106.19]), provides “That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge conditioned to pay all damages including reasonable attorneys fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; ...” There is apparently no dispute as to the liability of plaintiff for the items taxed as costs, nor the amount thereof; nor is it contended on plaintiff’s part that the items for which the chancellor found plaintiff liable are not damages within the meaning of the act. It was held in Strum v. Blair, 182 Ill. App. 413, that the statute requiring plaintiff to give bond for damages sustained by the wrongful appointment of a receiver, does not limit the recovery of damages to cases where a bond is given, since the bond merely secures the payment of damages, and that it is the wrongful procurement of the appointment that creates the liability. From this it would appear that plaintiff became personally liable for all the items of damages which were taxed against her, and the principal question for consideration is whether the court of equity has the right and power to determine the amount of damages suffered by defendant and to compel payment thereof, in the foreclosure proceeding.

None of the cases cited by plaintiff tends to sustain her contention. She cites Link Belt Machinery Co. v. Hughes, 195 Ill. 413, which was decided prior to the enactment of ch. 22, § 54 [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 106.19], in 1903. In that case a creditor’s bill was filed to collect a judgment against the debtor corporation and a receiver was appointed to operate the debtor’s business, with directions that he assume the lease of the debtor company and attorn to the lessor for the rent provided in the lease. After the assets of the company were sold and distributed and the receiver discharged, there remained an unpaid balance of rent due the lessor from the receiver. The lessor thereupon filed a petition in the pending equity proceeding, asking that the petitioning creditor pay this balance due to the lessor. One of the questions arising was whether a court of equity has jurisdiction to enforce the legal claim for rent, and it was held that if a receiver, who had been improvidently appointed and ordered to take possession of property and pay rent therefor, is discharged upon his showing that he has paid all the funds in his hands to the owner in payment of rent, leaving a balance for rent still due, the court may, upon petition by the owner of the property in the same suit, enter an order requiring the payment of such balance by the petitioning creditor who wrongfully procured the receivership, without vacating prior proceedings or compelling the owner to resort to his remedy at law. It seems to us that this decision does not aid plaintiff, but rather sustains the position taken by defendant, because, in the absence of any statutory question, it was held that the equity court was empowered to enforce, as an incident to its jurisdiction, a claim which was purely legal in its nature, without compelling the lessor to resort to his remedy at law.

In Brauer v. Laughlin, 235 Ill. 265, another case cited by plaintiff, for which her counsel on oral argument asked us to substitute McAnrow v. Martin, 183 Ill. 467, a bill was filed for specific performance and an accounting. Plaintiff’s bill was predicated upon an alleged trust, but the evidence disclosed that the transaction between the parties created only a debtor and creditor relationship; nevertheless, the court decreed that defendant pay plaintiff some $31,000 due on the loan. The decree was reversed because the whole basis for equitable relief had failed and the court was therefore without jurisdiction to pass upon plaintiff’s legal claim.

In Hogg v. Hohmann, 330 Ill. 589, the bill alleged equitable ground for relief but the proof failed to sustain the pleadings. Although the trial court found that there was no conspiracy, it entered judgment for the amount due on the note in question. The decree was reversed on the ground that complainant had a complete remedy at law.

In McAnrow v. Martin, 183 Ill. 467, which plaintiff’s counsel submitted on oral argument, the appointment of a receiver was reversed as having been improvidently made, and one of the questions that arose was whether the receiver was entitled to retain from the funds in his hands any amounts for services for himself as receiver or of his solicitor in the matter of the receivership. The court held that the order of appointment having been vacated the receiver was obliged to look for his fees and compensation to the complainant in the suit upon whose application he was appointed. Under this ruling it would seem idle to argue that although the complainant could be charged with fees due the receiver and his solicitor, where the appointment was improvidently made, the chancellor would nevertheless be without jurisdiction to charge the complainant with costs, including solicitors’ fees, for procuring a reversal of an order appointing a receiver. The decision cited merely holds that after the receivership order is reversed the receiver is required to restore the money to the person entitled thereto, and that he “cannot claim compensation out of the funds in his hands, but must look therefor to the party who secured his appointment. ’ ’ The case does not hold that the receiver is committed to an action at law in another proceeding to collect his fees, and in fact we find no authority cited in the briefs of either counsel which approves such a procedure.

Some of the foregoing decisions are in line with the general doctrine that where the complaint fails to allege ground for equitable jurisdiction, or, having alleged such ground, fails to make out a case in equity, the chancellor will not be justified in awarding a complainant relief for which there is a remedy at law. The corollary of this proposition, however, is equally well established; where equitable grounds are alleged and proved, the chancellor may at the same time, in order to do complete justice between the parties, determine matters which, if raised in an independent suit, would be cognizable only in a court of law. (Roach & Co. v. Harding, 348 Ill. 454, 474; McIntyre v. McIntyre, 287 Ill. 544, 550.)

Plaintiff calls attention to ch. 69, § § 9 and 12 (Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.357, 109.360]) which specifically vests courts of equity with jurisdiction to determine the damages caused by the wrongful issuance of an injunction when claimed upon dissolution thereof, and it is argued by analogy that the absence of a corresponding provision in ch. 22, sec. 1, par. 54 (Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 106.19]), dealing with damages resulting from the wrongful appointment of a receiver, shows that equity never acquired jurisdiction by statute, to determine and award the amount of damages upon revoking an order appointing a receiver. The reason for this difference in the provisions of the statutes probably lies in the fact that in the majority of injunction proceedings the main relief asked is the restraining order, and if the grounds therefor fail to be proved, equity would completely lose jurisdiction of the cause, in the absence of statute, and the question of damages would have to be decided in a court of law. On the other hand, receivers are usually appointed as incidental to the main relief sought, and where the order appointing the receiver is held to have been improvidently entered, equity still has jurisdiction of the case generally, and ought to be empowered to award damages for the wrongful appointment of the receiver as an incident to its jurisdiction, although the question of damages would ordinarily be cognizable only in a court of law.

The contention of plaintiff that as a general rule costs may not be taxed by the clerk of the court except as specified by the statute, is, of course, subject to exception, as shown by plaintiff’s own cases. (Schmidt v. Johnson, 224 Ill. App. 291; Burrows v. Merrifield, 243 Ill. 362.)

In the absence of any direct authority on the question, it seems to us that, under the broad powers which courts of equity are generally held to possess, where a receiver was improvidently appointed on plaintiff’s petition, thereby having caused defendant to incur expenses in obtaining a reversal of the order, the power to assess and tax the damages incurred, as costs, is incidental to the powers of the equity court, especially where the pending suit is clearly cognizable in equity and the assessment of costs, even though legal in character and not specifically authorized by statute, becomes incidental to the settlement of the parties ’ rights. In view of the fact that plaintiff does not question the amount of the damages assessed against her, it would seem a useless act to commit defendant to an independent suit for the recovery of damages which are admittedly proper and may readily be determined in the pending equity proceeding.

The order of the superior court is therefore affirmed.

Order affirmed.

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


author: Mr. Justice Scanlan

text:
    Louis S. Ehrenreich, Appellee, v. Massachusetts Mutual Life Insurance Company, Appellant.
    Gen. No. 40,521.
    Heard in the second division of this court for the first district at the December term, 1938.
    Opinion filed May 28, 1940.
    Eckert & Peterson, of Chicago, for appellant; Tom Leeming, of Chicago, of counsel.
    Alfred Newton, of Chicago, for appellee; Eugene Cohen, of Los Angeles, Calif., and Raymond H. High, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendant to recover certain benefits alleged to be due under a life insurance contract. The case was tried by the court without a jury, and at the conclusion of plaintiff’s evidence defendant moved the court to find the issues in its favor, which motion was denied. Defendant offered no evidence, rested, and renewed the aforesaid motion, which was denied. The trial court found the issues in favor of plaintiff and assessed plaintiff's damages at the sum of $593.25. Defendant made an oral motion for a new trial, which motion was denied. Judgment was entered upon the finding, and defendant appeals.

The following are the material provisions of the insurance contract in question, policy No. 888,723:

“Benefits
“Provision for Waiver of Premium and Annuity
Payment in the Event of Permanent Total Disability
“If the insured, before default in the payment of any premium under this policy and before the anniversary of the policy on which Ms age at nearest birthday is 65 years, shall furnish due proof to the Company at its Home Office that he has become wholly and permanently disabled so that he is and will be permanently, continuously and wholly prevented thereby from performing any work or engaging in any occupation for compensation or profit, the Company will
“(1) waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year; and
“ (2) pay to the insured one per cent, of the face of this policy, exclusive of any paid-up additions, and a like amount each month thereafter during the continuance of said total disability of the insured.
<<
“Provided that, notwithstanding proof of disability may have been accepted by the Company as satisfactory, the insured shall at any time, on demand, furnish due proof to the Company of the continuance of such disability, and if the insured shall fail to furnish such proof all premiums thereafter falling due must be paid in conformity with the conditions of this policy, and the annuity payments shall cease. ...” There is no question as to default in the payment of premiums nor the age of the insured.

Plaintiff had another insurance contract with defendant, policy No. 956,414, which provided that total disability existing continuously for a period of four months shall be deemed permanent. That provision is not contained in the policy in question, No. 888,723.

In November, 1936, plaintiff submitted to defendant, on its form, a “Claim for Disability Benefits.” He also submitted to defendant the “Attending Physician’s Statement.” His claim reads:

“Massachusetts Mutual Lies Insurance Company
“Springfield, Massachusetts (Part I)
“Claim for Disability Benefits
“Statement of Insured
“I hereby authorize the Massachusetts Mutual Life Insurance Company to obtain from any physician or other person who has attended or examined me, any and all information so acquired.
“Sign here Louis S. Ehrenreich
[Here follows jurat.]
“By furnishing this blank and making an investigation, the Company shall not be held to admit the validity of any claim.”
The “Attending Physician’s Statement” reads:
“Massachusetts Mutual Life Insurance Company
“Springfield, Massachusetts (Part II)
“Attending Physician’s Statement “Disability Claim
“Dated at Chicago this 3rd day of November, 1936.
“Sign here Samuel L. Goldberg M.D.
“Address 310 So. Michigan Blvd. “Chicago, Ill.”
On November 23, 1936, defendant sent the following letter to plaintiff:
“Chicago, Ill.
“Nov. 23,1936
“Mr. Louis S. Ehrenreich,
“5491 Hyde Park Blvd.,
“Chicago, Illinois.
“Re: Pols.# 888,723
956,414
“Dear Mr. Ehrenreich:
“We referred the completed disability claim blank under your above mentioned policies to our Home Office for their consideration.
“We wish to advise that the Company have allowed your claim under Pol. #956,414, which policy contains the four-months clause, accepting May 30, 1936 as the date of beginning of continuous total disability, which, after taking into consideration the four-months waiting period, will make the annuity payments begin as of September 30,1936. We are enclosing check to your order for $20.00, representing the first two monthly installments of disability annuity of $10.00 each, due September 30th and October 30, 1936. The first waiver of premium under this policy will begin as of the next premium date, April 10, 1937, based, of course, on the continuance of total disability.
“The disability clause in your Pol. #888,723 provides for the specified benefits only in the event of total and permanent disability, without any designated period of continuous total disability as presumptive evidence of permanency. The evidence presented does not justify a presumption of permanency of total disability and your claim under said policy has, therefore, been disallowed.
“Yours very truly,
“Bokum & Dingle, General Agents
“By: E. B. Cassidy
“EJ”

So far as the record shows nothing further was done as to policy No. 888,723 until April 5, 1937, when Attorney Newton, representing plaintiff, addressed a letter to defendant. We do not find this letter in the record, but on April 14,1937, defendant sent the following letter to Newton:

“April 14,1937.
“Be Policies Nos. 888723
956414 — Louis S. Ehrenreich
“Mr. Alfred Newton, Attorney at Law,
“Suite 742, Otis Building,
“10 South LaSalle Street,
“Chicago, Illinois.
“Dear Sir:
“Tour letter of the 5th inst., addressed to our Chicago agency, has been referred to this office for attention, same having reference to claim for disability benefits filed with us in November 1936 under the above described policies.
“The last mentioned policy provides that total disability existing continuously for a period of four months shall be deemed to be permanent, and we allowed the insured’s claim under this policy, benefits having been continued up to the present time.
“Policy No. 888723 contains no presumption clause such as I have referred to above, but, on the other hand, provides for allowance of the specified benefits only in the event of total and permanent disability. Inasmuch as the evidence submitted last November did not indicate total and permanent disability, we were necessarily obliged to disallow the insured’s claim under this particular policy.
“If the insured cares to submit additional evidence at this time, Part No. I of the inclosed claim blank may be completed and executed by him, and Part No. II by his attending physician — the completed blank to be forwarded direct to this office, when the matter will have our further consideration.
“Tours truly,
“J. T. Wells,
“Assistant Secretary.
“JTW:RS
“1 Inc.”

Plaintiff then submitted to defendant a second “Claim for Disability Benefits,” and a second “Attending Physician’s Statement,” which read:

“Massachusetts Mutual Life Insurance Company
“Springfield, Massachusetts (Part I)
‘ ‘ Claim for Disability Benefits “Statement of Insured
“I hereby authorize the Massachusetts Mutual Life Insurance Company to obtain from any physician or other person who has attended or examined me, any and all information so acquired.
“Sign here Louis S. Ehrenreieh
“Sworn to before me at Chicago, Illinois this 17th day of April 1937
‘ ‘Alfred Newton,
“Notary Public
“By furnishing this blank and making an investigation, the Company shall not be held to admit the validity of any claim.”
“Massachusetts Mutual Life Insurance Company
“Springfield, Massachusetts (Part II)
“Attending Physician’s Statement “Disability Claim
“Dated at...............this 20th day of April 1937
“Sign here Samuel L. Goldberg M.D.
“Address 310 S. Michigan Blvd., “Chicago, HI.
‘ ‘ 3. — -The patient was thrown from a horse May 30,1936, sustaining a comminuted fracture of the lower end of his left humerus, with several fracture lines extending into the elbow joint completely shattering the articular surface. The left arm was two inches shortened. There was paralysis of the muscles supplied by the radial and median nerves as well as loss of sensation of the skin in the areas supplied by these nerves. There was very obvious deformity of the arm and skin traction was applied after the patient was hospitalized. Several attempts at manipulation and molding the fragments together were unsuccessful and on June 5th a hole was drilled through the olecranon and skeletal traction was set up on a Kirschner wire which was placed through this hole. The patient remained in bed until the 2nd of July at which time the traction was removed and he was placed in a large cast extending from his neck to his fingers. After six weeks in this cast, non-union of the fragments necessitated open reduction. The radial nerve was caught in the callous and was removed and transplanted. The arm was again placed in a body cast until October 5th, when a part of the cast was removed; the arm has been in a cast all the time until the 1st of March, 1937. The patient was confined to the hospital from the 30th of May to the 7th of July and from August 7th to August 14th, 1936. Since March 1st physiotherapy treatments of three hours duration have been given three times a week, necessitating his being in the hospital during these periods.”

Defendant contends: “I. Where the provision of a life insurance policy provides for the payment of benefits upon due proof of the total and permanent disability of the insured and the provision raises no presumption of permanency resulting from total disability of a specified duration, the great weight of authority holds that no recovery can be had where the insured has recovered from the disability at the time of the institution of suit. A. There is a distinction to be observed in the meaning attached to the term ‘permanent’ in the cases where the insurance contract contained a presumption clause and in those cases where no such clause is included for the reason that in the former class of cases permanency is assumed because of the contract provisions while in the latter a showing must be made either by the proofs filed or by the evidence received in court that the disability at the time the showing is made is, so far as it is possible to ascertain, permanent. B. Even where the contract contains a presumption clause, the presumption is rebut-table and is rebutted by a showing that the insured had recovered from his total disability prior to the institution of suit. II. Where any disability benefits are payable under the terms of an insurance policy the period of such benefits begins when proof of disability is made.”

Plaintiff contends: “Whenever it should appear that the plaintiff was totally disabled and that such disability would, so far as it was possible to ascertain at the time, continue for an indefinite and uncertain period of time, the plaintiff is deemed to be totally and permanently disabled, (a) The fact that plaintiff’s total permanent disability ends before suit is instituted is of no import. And if what was once regarded as a total permanent disability proves to be a total temporary disability, the provision of the policy should be construed to render the company liable for the period of total disability only, (b) Where the disability provisions provide that the insurer will pay benefits during the continuance of total disability, and provide that on demand the insured must furnish proof of the continuance of such disability, the policy is construed to mean that it contemplates the accrual of liability for benefit payments under conditions which may eventually prove temporary only. (c) The word ‘permanent’ is given the same meaning placed upon it in ordinary usage, and as in case of a ‘permanent location’ or ‘permanent job’ or ‘permanent structure’ or ‘permanent wave’ the word does not mean everlasting, (d) Although some courts have defined ‘permanent’ as used in connection with a disability strictly and literally, and give the word the restricted construction urged by defendant, the majority view, the weight of authority, and particularly the courts of Illinois support the more liberal interpretation. II. A provision in an insurance policy requiring due proof as a condition to the payment of disability benefits is complied with if notice is given the insurer either in person, by mail or telephone. III. Doubtful construction must be resolved against the insurer who writes the policy and who thoroughly understands the nature of its contractual obligations. IV. Where any disability benefits are payable under the terms of an insurance- policy containing the provisions as in the policy at bar, the period of such benefits begins when the disability begins. V. Whether the insured was totally and permanently disabled within the meaning of the policy is a question of fact to be decided by the trial judge, who heard the evidence.”

On May 30,1936, while the policy was in force, plaintiff was thrown from a horse and suffered a com-minuted fracture of his left arm. The fracture was a serious one and caused injury to the radial and median nerves in the fractured area. Several operations were performed during the course of the treatments. Defendant concedes, for the purpose of “the argument, alone,” that the injuries sustained were “of such a nature as to totally disable .plaintiff from performing the substantial duties of his occupation until April, 1937.”

Plaintiff’s father owned a boys’ camp in Wisconsin. The camp opened each year on July 2 and closed August 26. Approximately ninety-four boys were enrolled yearly and it was part of plaintiff’s duties, after the camp closed and until the commencement of the next season, to call on parents and interest them in sending their boys to the camp. These duties required him to go to Ohio, Missouri, Alabama, Texas, G-eorgia and Mississippi, and he traveled from place to place in an automobile, which he drove. He was in charge of the camp while it was open and he also took an active part in supervising the physical activities. During the summer of 1936 he was at the camp a part of the time and was consulted by the head counsellor about routine matters, but he did not participate in the physical activities. About April 1,1937, he commenced calling on camp prospects and was driving his automobile. During his direct examination the following occurred: “Q. And you proceeded to 'start to work? A. . . . in April I commenced driving the car. Q. What did you actually commence to do in connection with your duties at this time in the first of April? A. Making calls on camp prospects. Q. Prior to that day, during-the course of this injury and the treatment, had you made any other calls on prospective customers? A. I made no calls. Q. . . . When you did commence to perform some of the functions and duties required of you in your job around the first of April, 1937, did you proceed to work full time and function in full blast? I mean all day or all evening or whatever time you usually worked? A. I would say yes; I was at least seventy-five per cent going. Q. In other words, starting around the first of April, you were actually discharging the substantial duties required of you on your job. A. That is right.” From April 1, 1937, until the trial of the cause plaintiff performed his usual duties. The instant suit was commenced July 28, 1937. The trial commenced June 13,1938. It will be noted that the second ‘ ‘ Claim for Disability Benefits ’ ’ was .signed by plaintiff April 17,1937. The second statement of the attending physician was signed April 20, 1937. Defendant emphasizes the fact that the attending doctor, in his first statement, in answer to the question, “How soon, in your opinion, will claimant be able to resume an occupation?” stated, “Probably not until Spring, 1937.”

Plaintiff and defendant have devoted much time to the law bearing on the question of the meaning of the word “permanent” when used in an insurance contract like the one involved in the present law suit. As we view this appeal it is unnecessary for us to consider the many cases cited by each party in support of its position. The question is, What interpretation shall be given the word “permanent ’ ’ in the instant insurance contract? We are satisfied that the interpretation given that word in the case of Johnson v. Mutual Trust Life Ins. Co., 269 Ill. App. 471, is a reasonable one and just to both parties to the contract. There the court had before it a policy containing provisions similar to those now before this court. The court states that the real question in the case was whether the plaintiff was totally and permanently disabled within the meaning of the policy, cites the several provisions of the policy bearing upon the question, and after considering the effect of the several provisions, holds (p. 475): “It clearly indicates that the parties intended by this contract that whenever it should appear that the plaintiff was totally disabled and that such disability would, so far as it was possible to ascertain at the time, be permanent, the insured should receive the income and have the premiums waived as provided in his policy, from the time such fact is determined until the insured recovered or died. No other reasonable construction can be given the provisions of the policy in this case. . . .” We approve of this interpretation. To give the word “permanent” a more liberal interpretation would be unfair to the insurance company and would defeat the purpose of the instant type of insurance. In this case it must be borne in mind that the instant insurance contract is not a straight disability contract, nor is it one like the insurance contract that defendant issued to plaintiff (policy No. 956,414), which contains a provision that after total disability has existed for four months the total disability shall be presumed to be permanent.

It would be idle to argue that the claim filed by plaintiff in November, 1936, and the statement of the attending physician in connection with the claim made a prima facie showing that plaintiff was totally and permanently disabled within the meaning of the insurance contract. Plaintiff, in his claim, in answer to the question, “Will your disability be permanent,” stated, “Can’t say.” Plaintiff’s opinion would have little, if any, force, but his attending physician, in response to the question, “Do you consider that the claimant, by reason of present disability, will be permanently, continuously, and wholly prevented from pursuing any and all gainful occupations,” answered, “No.” And in response to the question, “How soon, in your opinion, will claimant be able to resume an occupation? Approximate date,” the physician answered, “Probably not until Spring, 1937.” When the second claim was filed, on April 17, 1937, plaintiff had been discharging the substantial duties required of him on his “job” for 17 days. At the time of the trial of this cause he had been performing the duties of his position for approximately 14 months. Upon the trial plaintiff, in an effort to make out a case, was allowed great latitude, but the patent outstanding-facts made it impossible for him or his physician to prove ‘ ‘ that he is and will be permanently, continuously and wholly prevented thereby from performing any work or engaging in any occupation for compensation or profit,” within the meaning of the contract of insurance in question. It is only fair to defendant to note that defendant allowed plaintiff’s claim for benefits under policy No. 956,414. We are constrained to hold that the trial court erred in finding for plaintiff.

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

Judgment reversed.

Sullivan, P. J., and Friend, J., concur.


text:
    Edward Wolf, Minor, by Samuel Wolf, His Father and Next Friend, Appellant, v. Adam Budzyn, Appellee.
    Gen. No. 40,597.

      Heard in the second division of this court for the first district at the February term, 1939.
    Opinion filed May 28, 1940.
    Rehearing denied and opinion slightly modified June 12, 1940.
    John A. Bloomingston, of Chicago, for appellant.
    Cassels, Potter & Bentley, of Chicago, for appellee; Ralph F. Potter, L. H. Vogel and Anthony S. Ras, all of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action on the case for personal injuries sustained by Edward Wolf, a minor, who was seriously injured in the accident in question. A jury returned a verdict of not guilty, upon which the court entered judgment. Plaintiff appeals.

The complaint consisted of five counts. Counts three, four and five were withdrawn. The first count charges that on August 16, 1932, defendant was driving his motor vehicle north on Damen avenue and plaintiff was driving south on Damen avenue; that plaintiff was exercising due care; that defendant carelessly, negligently and unskilfully drove and operated his said motor vehicle so that it collided with the motor vehicle driven by plaintiff, and the latter was injured. The second count charges that at the time and place in question defendant, wholly disregarding his duty, carelessly, negligently and unskilfully drove and operated his said motor vehicle so that the same was thereby driven upon the wrong side of the public highway, that is, the left side of the center of the public highway, and that he thereby collided with the motor vehicle driven by plaintiff, while the latter was in the exercise of due care. The complaint was amended at the trial so as to change the directions in which the motor vehicles were going at the time of the accident. Defendant filed the plea of the general issue and also a plea of nonoperation and control. The latter plea was withdrawn.

Plaintiff strenuously contends that the manifest weight of the evidence is in his favor. While this contention is not without some force, we do not deem it necessary to pass upon the same, in view of our ruling as to plaintiff’s second contention. There was, to say the least, a sharp conflict in the evidence.

Plaintiff contends that the court erred in refusing to give the following instruction offered by plaintiff: “The jury are instructed that if you find from the evidence in this ease that the plaintiff at the time of his injury, if any, was under the age of twenty-one years, then and in such an event you are instructed that the degree of care required of him was such care as a boy of his age, intelligence, capacity and experience would exercise under the same or similar circumstances.” Plaintiff complains of the following instructions given at the instance of defendant: Defendant’s seventh instruction instructed the jury that the burden was upon plaintiff to prove by a preponderance of the evidence “that he, the plaintiff, was in the exercise of ordinary care for his own safety at the time of and just before the accident in question.” Defendant’s ninth instruction reads as follows: “Before the plaintiff can recover in this case it must appear by a preponderance of all of the evidence that he was in the exercise of ordinary care for his own safety at the time of and immediately preceding the collision here in question; and if you believe from the evidence that the plaintiff was in any way negligent and that such negligence contributed in any degree to the accident which caused his injuries, the plaintiff cannot recover in this case.” The tenth instruction directs a verdict unless plaintiff has proven by a preponderance of the evidence each and all of three propositions: “1. . . . 2. That immediately before and at the time of the accident the plaintiff was in the exercise of ordinary care for his own safety. 3.

Plaintiff, at the time of the accident, was under eighteen years of age. He was going to school, and sometimes helped his father by driving a truck. The trial court, in acting upon the foregoing instructions, adopted the theory of law advanced by defendant that when a child has attained the age of fourteen years he is required to exercise the same degree of care for his own safety as is required of an adult. This theory of law runs counter to the settled law of this State, which is that a minor over the age of seven years is required to exercise that degree of care that a boy of his age, intelligence, capacity and experience would exercise under the same or similar circumstances. Defendant admits that it can cite no Illinois case that passed upon any similar instructions to those in question and sustained defendant’s position. The records of the Supreme Court and this court contain many cases in which instructions bearing upon the care required of minors were before the courts. Many distinguished lawyers, have represented defendants in personal injury cases in which minors were involved, but never until very recently has the contention now raised by defendant been urged or suggested. Defendant cites Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, in support of his contention, and it is apparent that certain language in that case inspired defendant’s theory of the law. In the Mashaliunas case the minor was seven years and ten months old at the time of the accident. The court held (p. 150) that between the ages of seven and fourteen “the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. ’ ’

In its opinion the court states (pp. 149, 150): “We have also held that when a child has attained the age of fourteen years there is no reason to excuse him from the same degree of care for his own safety which is required of an adult . . . and that in the case of a child above the age of fourteen years the same rule shall be applied to him in that regard as is applied to adults, his intelligence and experience being considered.” As the child in that ease was under eight years of age the statement as to the degree of care that is required of a child over fourteen years of age was pure dictum, and it will be noted that the last part of the dictum is inconsistent with the first part. The court, in the Maskaliunas case, was not called upon to pass upon an instruction bearing upon the care that should be exercised by a minor. However, the contention raised by defendant was also raised in the recent case of Cicero State Bank v. Dolese & Shepard Co., 298 Ill. App. 290 (not cited by either counsel). There the minor, over fourteen years of age, was drowned on the premises of defendant. The trial court, at the instance of plaintiff, gave to the jury the following instruction: ‘The Court instructs the jury that wherever it is said by these instructions that the deceased herself must have been exercising ordinary care for her own safety before she can recover, the Court means that the plaintiff must have been exercising such degree of care that an ordinarily prudent girl of plaintiff’s age, experience, intelligence and capacity would have exercised under the same or similar circumstances.” There was a verdict for plaintiff, and upon appeal to this court the defendant complained of the giving of this instruction and argued that the Maskaliunas case “lays down the doctrine that when a child is fourteen years or over, the principle of contributory negligence applies the same as it does in the case of an adult.” In its opinion the First Division of the court stated (pp. 297, 298): “Defendant says that the factors of ‘experience, intelligence and capacity’ should not be considered in connection with a person over the age of 14. In Hughes v. Medendorp, 294 Ill. App. 424, it was held that the absence of these factors in an instruction was erroneous. In Peterson v. Chicago Consol. Traction Co., 231 Ill. 324, the plaintiff was between 14 and 15 years t'of age; he was injured by defendant, and the court gave the jury an instruction substantially the same as the one under consideration. The Supreme Court affirmed the judgment of the lower court. The court committed no reversible error in regard to the instruction. ’ ’ The Supreme Court refused an appeal in the case (see ib. xiv). We find no merit in defendant’s position, and we hold that the trial court committed reversible error in refusing to give plaintiff’s instruction and in giving defendant’s instructions seven, nine and ten.

Defendant contends that the instruction tendered by plaintiff was not proper under the pleadings, and that the instructions tendered by defendant were proper under the pleadings. The point made is that the allegation of due care on plaintiff’s part was that “he was in the exercise of all due care and caution for his own safety,” and that the complaint contained no allegation that plaintiff was a minor at the time of the occurrence; that the complaint “did not tender the issue of incapacity, want of intelligence or experience on the part of the plaintiff and the plaintiff could not inject this element into the case for the first time by instruction to the jury. ’ ’ This contention is in the nature of a claim of variance, and the question of variance was not raised by defendant. The suit was brought by “Edward Wolf, a minor, by Samuel Wolf, his father and next friend,” and the evidence showed that the minor, a school boy, was under 18 years of age at the time of the accident. The record shows that both parties tried the case as a suit by a minor. Defendant understood the nature of the claim he was called upon to meet. The point now made was not raised at anytime during the trial. Had it been raised, plaintiff could have readily amended the complaint if his counsel deemed it necessary to do so. From an examination of the proceedings we are inclined to believe that defendant’s instant contention is a mere afterthought.

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

Judgment reversed and cause remanded for a new trial.

Sullivan, P. J., and Friend, J., concur.


text:
    Goldie Buehler, Appellant, v. Albert C. Buehler, Appellee.
    Gen. No. 39,956.

      Heard in the second division of this court for the first district at the February term, 1939.
    Opinion filed May 2, 1939.
    Jacob G. Grossberg and Harry May, both of Chicago, for appellant.
    Vernon E. Loucks and A. J. Hennings, both of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Goldie Buehler filed a complaint against her husband, Albert C. Buehler, in July, 1935, which, as amended, prayed in the alternative for divorce or separate maintenance. After an extensive hearing as to the merits of the controversy by the court and a separate hearing before a master in chancery, to whom a reference was had as to the property rights of the parties, a decree of divorce was entered in favor of plaintiff October 20, 1937, on the ground of cruelty. The decree allowed plaintiff as permanent alimony for herself $175 a month, and the further sum of $75 for each of two minor children, whose custody was awarded to her; she was awarded the household goods, an equal interest with defendant in the equity to the real estate held by the parties jointly, which has been occupied as their home, and a total of $4,500 solicitors’ fees, including $500 paid during the trial; and defendant was required to pay-reporters’ fees and other costs in the case. Defendant is apparently satisfied with the provisions of the decree, but plaintiff has prosecuted an appeal therefrom in so far as it awarded custody of the youngest child, Rose Marie, to defendant and not to her; in refusing to permit her to withdraw her prayer for divorce and in not granting separate maintenance; in awarding her what she considers an inadequate allowance for herself and the children, in the light of defendant’s annual average income, as well as the amount of solicitors ’ fees, which plaintiff says should have been at least $10,000.

The record brought up on appeal consists of more than 1,500 pages. There are two transcripts, one of the evidence taken before the master and the other embracing the hearing before the court. The essential facts disclose that the Buehlers were married in 1919 and had four children whose ages when this proceeding was instituted were: Carl, 14; Barbara, 13; Albert C., Jr., 12; and Rose Marie, 8. After their marriage the material home surroundings were progressively improved. They first occupied a small apartment, then a larger one, and ultimately purchased a home in Kenilworth for $45,000. Until 1930 the parties were happily married. During that year Mrs. Buehler had to undergo two operations, one in April and another in September. The attending physician advised that for a year at least she was not to undergo any emotional strain and during that period the parties did not cohabit as husband and wife. Plaintiff testified that at the end of that year she was prepared to resume normal married life but that defendant repulsed her on one pretext or another, and much evidence was adduced suggesting that during the period of enforced abstinence on the part of plaintiff, defendant had formed a liaison with a young woman in his employ. Mrs. Buehler asserts that from that point on defendant’s attitude toward her changed completely; that he reduced her allowance for expenses, frequently stayed away from home, provoked arguments of various kinds, and seemingly pursued a course of conduct for the attainment of his desire to “get rid of her”; and all this is attributed to the liaison she says he contracted during the year of enforced abstinence brought about by plaintiff’s illness. Defendant, on the other hand, attributes the rift in their domestic relationship to the depression and the refusal of plaintiff to adjust herself to the financial curtailment necessitated by conditions subsequent to 1930. The fact remains, however, that they finally separated, after increasingly aggravating and offensive circumstances at home and never resumed their conjugal relations after 1930. Inasmuch as the complaint is predicated upon charges of cruelty and the decree was awarded plaintiff on that ground, we consider it unnecessary to discuss the evidence relating to the merits of the case, except in so far as the facts may have some bearing upon those portions of the decree from which plaintiff has prosecuted this appeal.

It is first urged that the court erred in entering a decree for divorce rather than one for separate maintenance. The original complaint prayed for divorce, but before trial an amendment to the complaint prayed in the alternative for divorce or separate maintenance. Evidence on the general merits was then heard by the court, but the questions as to the amount of alimony and the property rights of the parties were referred to a master. The master made certain recommendations as to the payment of alimony, support for the children, and the adjustment of the property rights. At the conclusion of the hearing before the court and after the court had announced his decision including the amount of alimony to be awarded plaintiff, and also in respect to the custody of the children, plaintiff asked leave to amend her complaint so as to make the cause solely one of separate maintenance. This motion was overruled. Plaintiff argues that although technically the court could exercise discretion in allowing or refusing to allow her to withdraw her prayer for divorce, leaving only the alternative prayer for separate maintenance, it was nevertheless “against the spirit of equity and public policy to have denied her that request, as applied to the facts in this case”; and she asserts that she was divorced against her will. The record indicates, however, that plaintiff had in the first instance filed a complaint for divorce, and that although she had amended the prayer thereof by seeking divorce or separate maintenance in the alternative, it was only after the parties had gone to great expense in a hearing before the master on the question of alimony and the property rights of the parties, and after the chancellor had announced his decision, that she definitely indicated her desire for separate maintenance rather than divorce. If plaintiff had indicated at the outset that she desired a decree for separate maintenance, it would not have been necessary for the master to have taken voluminous proof on the question of the property rights of the parties and the consequent expense of such a hearing would have been avoided. The amount to be awarded to her under a separate maintenance decree could readily have been determined by the court without a reference. Her motion for a decree at the conclusion of the hearing was made after the court had announced his decision, not only on the merits of the case, but also as to the amount to be awarded her and the various provisions of the decree, and her dissatisfaction with the court’s decision undoubtedly influenced her in making the motion. Under the circumstances, plaintiff is not in any position to complain, and we think the court did not abuse its discretion in entering a decree for divorce. (Soltysik v. Soltysik, 317 Ill. 247.)

The awarding of the custody of Bose Marie, the youngest child, to defendant, is assigned as another ground for reversal. This child was 10 years of age at the time the decree was entered, and although there is evidence tending to show that she was quite fond of her father and spent considerable time with him, the law is well settled that the best interests of the child must be primarily consulted. (Miner v. Miner, 11 Ill. 43, 49, 51; Gillett v. Bryant, 203 Ill. App. 322, 324; People v. Schaedel, 340 Ill. 560, 563, 565, 566; Draper v. Draper, 68 Ill. 17, 20.) This is especially true where the father is found at fault and a decree is entered in favor of the mother, against whom no improper conduct is charged and who on the record appears to be a perfectly fit and proper person. At the age of 10 or 12, Bose Marie for many years to come will be in need of the constant watchfulness, guidance and affection of the mother. The father, who is required to attend to his business during the day is often absent from the city on business during periods of time, cannot bestow the care on an infant daughter that is ordinarily required. During his absence from the city she will have to be left in the care either of strangers or an aged paternal grandmother, and as between either of these alternatives there is no question but that the mother is entitled to the custody. We are therefore impelled to hold that in the interest of the child’s welfare her custody should have been awarded to the mother instead of to the father, with the same rights of visitation as provided in the decree with reference to the other children.

This leads to a consideration of the principal controversy in the case, namely, the allowance of alimony and support for the children. Shortly after the complaint was filed a motion for temporary alimony was made and at Mr. Buehler’s suggestion the sum of $300 was allowed. After an extensive hearing the master increased this amount by recommending $175 a month to Mrs. Buehler and $75 for the support of each of the two children whose custody was awarded to her, aggregating $325 a month, and the decree so provided. Out of the sum awarded her plaintiff is required to pay one-half of the taxes on the Kenilworth property and also one-half of the interest on a $14,000 mortgage on this property. From the evidence adduced before the master, it appears that defendant was the oldest son of Carl Buehler, Sr., the founder of two extensive businesses, that of Buehler Brothers, Inc., a packing concern operating a chain of retail meat market units in the United States and Canada, and the Victor Adding Machine Company, a manufacturing concern. When defendant purchased the home in Kenilworth in 1925 his income from these two sources had reached a substantial amount. By agreement of counsel for the parties, qualified auditors were allowed to examine the books and records of the two foregoing concerns, as well as defendant’s personal accounts, and considerable evidence was introduced before the master, including the auditors’ reports, showing defendant’s progressive earnings and income from 1925 to 1935, when the parties finally separated. It appears from this evidence that from 1925 to 1930 defendant’s income ranged from $23,000 to $37,000 a year, and during these years he accustomed his family to a mode of living which called for an expenditure of about $18,000 a year.

The auditors’ report as to defendant’s personal assets and liabilities as of December 31, 1935, indicates total net assets of $213,454.07. This includes some cash, his interest in the Kenilworth property, which is fixed at $5,000, stock of the Victor Adding Machine Company amounting to $54,345, stock of Buehler Brothers, Inc., valued at $126,900, and an undivided interest in Personal Property Trust, valued at $37,976.20. Defendant’s liabilities aggregated $25,365.47. One of the auditors testified that it would be difficult to establish a value for the common stock held in the Victor Adding Machine Company and Buehler Brothers, Inc., because of the negligible common stock earnings during the past 10 years, and also because the stock of neither of these concerns was listed on any exchange, and for the further reason that it would be difficult to dispose of his minority holding. The auditors placed a book value on this stock, however, and said that the stock has a definite value to its present owner, because by virtue of his ownership of the stock, combined with family affiliations of the majority stockholders, defendant would undoubtedly be able to retain an official position with the company, thereby maintaining his personal salary.

It appears also from the auditors’ reports that defendant’s estimated salary from the Victor Adding Machine Company from 1925 to 1936 was in excess of $12,000 for every year except 1933 and 1934, and during most of these years it approximated $18,000. In addition to these earnings, he received annual dividends varying from $2,300 to $18,000 from the two business ventures, and his total income from 1925 to 1936 varied from $12,000 to $34,000 annually. In 1934 and 1935, which were the two years during which defendant claims to have suffered the most serious effects of the depression, his total incomes, were respectively, $13,-636.08 and $13,637.82. Against these incomes there weré, of course, deductions for interest, taxes, contributions and unusual and nonrecurring losses. It is significant, however, that during the greatest period of depression, as defendant claims, he was able to contribute $1,500 to one philanthropic enterprise alone, and also made other charitable contributions. When the marital relations of these parties became progressively worse in 1933 and 1934, ,the Buehler family created a real estate trust and some of defendant’s earnings were placed into that trust. It is argued that he then began to “cover up,” and that his claim of poverty is not borne out by the record. Without a further extended discussion of Mr. Buehler’s circumstances we are convinced, from a careful examination of the records and of the auditors’ reports and accounts, that he was a man of considerable means in 1935, and that his income even during the two years of 1933 and 1934 was sufficient to have justified a larger award to plaintiff. The auditors’ reports show that defendant kept no books and records of his own and they were required to rely almost entirely on information which they derived from sources made available by defendant. It was discovered, for instance, that one item which defendant kept from the auditors made a difference of more than $3,000 in the amount of the indebtedness he claimed to have borrowed from the Victor Adding Machine Company to pay the costs of detective services. These services amounted to approximately $5,000, money expended by defendant for tapping Mrs. Buehler’s telephone and keeping one or two operatives in constant attendance, with a view to procuring some evidence against her, which, however, never materialized.

Under all the circumstances of record we think the amount awarded plaintiff was inadequate. With the additional custody of Rose Marie, she will have to maintain herself and rear and educate three children now at the age where educational and other expenses will increase rather than decrease. We believe therefore that an allowance of $300 a month for Mrs. Buehler and $75 a month for each of the three children, aggregating $525 a month, or $6,300 a year, would be more in keeping with the circumstances of the parties and with Mr. Buehler’s earnings.

The remaining objection to the decree relates to the amount awarded to plaintiff for her solicitors. She was awarded an aggregate of $4,500 for that purpose. One of plaintiff’s counsel testified that he had necessarily spent 700 hours up to the time of the conclusion of the evidence, but not including the proceedings thereafter, which required services pertaining to the entry of the decree and this appeal. The record, as herein-before stated, is quite voluminous, the printed abstract alone running to over 400 pages. The attorneys ’ fees, based on the amount of time spent, amount to approximately $6 an hour. We think an additional $1,500 should be allowed plaintiff for her counsel for the services terminating with the conclusion of the proceedings before the trial court, and another $1,000 for services entailed in the entry of the decree and the prosecution of this appeal.

It is therefore ordered that the decree of the superior court be reversed in the following respects: (1) That the custody of Rose Marie be awarded to plaintiff; (2) that the permanent alimony of plaintiff be increased to $300 a month; (3) that she be allowed an additional $75 a month for each of the three children placed in her care; and (4) that she be allowed an additional $1,500 for services rendered by her solicitors up to the conclusion of the proceedings before the trial court, and $1,000 for services rendered thereafter, including this appeal, and that the cause be remanded with directions to amend the decree so as to conform with the views herein expressed, and that it be affirmed in all other respects.

Decree of superior court reversed and cause remanded with directions to amend decree so as to conform with views herein expressed; affirmed in all other respects.

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


author: Opinion by Justice Fulton.

text:
    People of the State of Illinois, Plaintiff in Error, v. James D. Flynn, Defendant in Error.
    Gen. No. 9,222.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed April 15, 1940;
    rehearing denied June 13, 1940.
    John E. Cassidy, Attorney General, for plaintiff in error; A. B. Dennis, Assistant Attorney General, Fred B. Hamill, State’s Attorney, and C. H. Swick, Assistant State’s Attorney of counsel; Albert Tuxhorn and James L. Capel, for defendant in error.
   Opinion by Justice Fulton.

‘ ‘Not to be published in full.”


author: Opinion by Presiding Justice Wolfe.

text:
    Laura M. Russell, Appellee, v. New York Life Insurance Company, Appellant.
    Gen. No. 9,509.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 26, 1940;
    rehearing denied June 5, 1940.
    Scott, Macleish & Falk and Miller, Elliott & Westervelt, for appellant; John D. Thomason, of counsel; Knoblock & Sloan, for appellee; John F. Sloan, Jr., of counsel.
   Opinion by Presiding Justice Wolfe.

‘ ‘Not to he published in full.”


author: Opinion by Justice Huffman.

text:
    John Hohner et al., Appellants, v. American Silica Corporation et al., Appellees.
    Gen. No. 9,535.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed May 15, 1940.
    John H. Armstrong, Butters & Berry, Robb J. Purcell and R. A. Green, for appellants; Edward G. Woods and Hibbs & Pool, for certain appellee.
   Opinion by Justice Huffman.

“Not to be published in full. ’ ’


text:
    Hattie Gabl v. Frank Gabl and Anna Funk, Intervening Petitioners. Anna Funk, Appellee, v. Hattie Gabl, Appellant.
    Gen. No. 40,422.
    (Abstract of Decision.)
    Heard in second division, first district, this court at October term, 1938;
    opinion filed May 28, 1940;
    rehearing denied June 12, 1940.
    Charles J. Russell, for appellant; J. Willis Dix, for appellee; George C. Otto, of counsel.
   Opinion by Presiding Justice John J. Sullivan.

‘ ‘Not to be published in full.’ ’


text:
    Allen Industries, Inc., Appellant, v. American Hair and Felt Company, Appellee.
    Gen. No. 40,517.
    (Abstract of Decision.)
    Heard in second division, first district, this court at December term, 1938;
    opinion filed May 28, 1940.
    Chapman & Cutler, for appellant; Dayton Ogden, of counsel; Hopkins, Sutter, Halls & DeWolfe, for appellee; Lines, Spooner & Quarles, Donald J. DeWolfe and William G. Blood, of counsel.
   Opinion by Presiding Justice John J. Sullivan.

“Not to be published in full.”


text:
    Henning E. Johnson, Appellee, v. Chicago City Bank and Trust Company et al., Defendants. Appeal of Chicago City Bank and Trust Company, Appellant.
    Gen. No. 40,912.
    (Abstract of Decision.)

      Heard in second division, first district, this court at October term, 1939;
    opinion filed May 28, 1940.
    Rathje, Hinckley, Barnard & Kulp, for appellant; Joseph J. Sullivan, Jr., of counsel; Victor Neumark and C. A. Caplow, for appellee.
   Opinion by Presiding Justice John J. Sullivan.

“Not to be published in full."


author: Opinion by Justice Friend.

text:
    Arlouine Price, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 40,712.
    (Abstract of Decision.)
    Heard in second division, first district, this court at June term, 1939;
    opinion filed May 28, 1940;
    rehearing denied and opinion modified June 13, 1940.
    John A. Bloomingston and Benjamin Samuels, for appellant; Ryan, Sinnott & Miller, for appellee.
   Opinion by Justice Friend.

“Not to be published in full."


text:
    Fannie G. Anderson, Appellee, v. Trust Company of Chicago, Appellant.
    Gen. No. 40,736.
    (Abstract of Decision.)
    Heard in second division, first district, this court at June term, 1939;
    opinion filed May 28, 1940;
    rehearing denied June 12, 1940.
    March & Rossiter, for appellant; Edward S. Coath, for appellee; John J. Lyons, of counsel.
   Opinion by Justice Friend.

‘‘Not to be published in full.”


text:
    Alfred Johnson, Appellee, v. Edward Balmes, Appellant.
    Gen. No. 40,965.
    (Abstract of Decision.)
    Heard in second division, first district, this court at October term, 1939;
    opinion filed May 28, 1940.
    Arthur R. Wolfe, for appellant; James G. Barber, for appellee.
   Opinion by Justice Friend.

‘‘Not to be published in full.”


text:
    Frederick L. Regnery, Appellant, v. Chris-Craft Boat Sales, Inc. and John P. Rodi, Appellees.
    Gen. No. 40,996.
    (Abstract of Decision.)
    Heard in second division, first district, this court at October term, 1939;
    opinion filed May 28, 1940.
    John H. S. Lee, for appellant; Cameron F. Woods, of counsel; Bippus, Rose., Burt & Pierce, for appellees; Lester K. Olin, of counsel.
   Opinion by Justice Friend.

‘‘Not to be published in full.”


text:
    Lessing Rosenthal et al., as Surviving Partners of the Firm and Copartnership of Rosenthal, Hamill and Wormser, Appellees, v. Paul C. Loeber, Appellant.
    Gen. No. 41,026.
    (Abstract of Decision.)
    Heard in second division, first district, this court at October term, 1939;
    opinion filed May 28, 1940.
    Harold O. Mulks, for appellant; Herman L. Ellsworth, for appellees.
   Opinion by Justice Friend.

“Not to be published in full.”


author: Opinion by Justice Scanlan.

text:
    Isora McNulty, Appellee, v. Lewis A. Reinert and Robert Clarke, Trading as the Alexandria Hotel, Appellants.
    Gen. No. 40,501.
    (Abstract of Decision.)
    Heard in second division, first district, this court at December term, 1938 ;
    opinion filed May 28, 1940.
    Andrew J. Farrell, for appellants; Henry Both, Charles O. Spencer and Richard M. Spencer, for appellee.
   Opinion by Justice Scanlan.

“Not to be published in full.”


text:
    G. S. Ellithorpe, Appellant, v. Glenn E. Holmes, Appellee.
    Gen. No. 40,511.
    (Abstract of Decision.)
    Heard in second division, first district, this court at December term, 1938;
    opinion filed May 28, 1940;
    rehearing denied June 12, 1940.
    Laurence M. Fine, for appellant; Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellee; Herbert M. Lautmann and Henry L. Kohn, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.”


text:
    People ex rel. Charles De Leuw and Company, Plaintiff, v. Village of Midlothian, Appellant. Charles De Leuw and Company, Appellee.
    Gen. No. 40,616.
    (Abstract of Decision.)
    Heard in second division, first district, this court at October term, 1938;
    opinion filed May 28, 1940.
    Paul T. Klenk, for appellant; Franklin W. Klein, of counsel; Langworthy, Stevens & Bartlit, for.appellee; B. F. Langworthy, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.”


text:
    Frieda Rosinski, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,633.
    (Abstract of Decision.)
    Heard in second division, first district, this court at April term, 1939;
    opinion filed May 28, 1940.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and Ira W. Hurley, of counsel; Ewart Harris, for appellee.
   Opinion by Justice Scanlan.

“Not to be published in full.”


author: Mr. Presiding Justice Dove

text:
    Joseph Kessie and Mary F. Wheeler, Appellees, v. Mancel Talcott et al., Appellants.
    Gen. No. 9,495.

      Heard in this court at the October term, 1939.
    Opinion filed February 9, 1940.
    Rehearing denied June 19, 1940.
    George S. McGaughey, of Waukegan, for appellants.
    J. A. Miller, of Waukegan, and Cassels, Potter & Bentley, of Chicago, for appellees; J. A. Miller and Leslie H. Vogel, Robert B. Johnstone and Richard H. Merrick, all of Chicago, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On July 20, 1939, the plaintiffs filed in the circuit court of Lake county their sworn complaint alleging that they were residents of the city of Waukegan and persons of good reputation and character to whom, on May 1, 1939, licenses for the sale of intoxicating liquors were issued by the proper officers of the city and that said licenses have not expired. The complaint then alleged that the plaintiffs have for a long time operated their businesses under previous licenses and that the plaintiff Kessie had invested $10,000 in his business and plaintiff Wheeler $8,000 in her business, that they have always operated their business in strict accordance with the statutes of this State and the ordinances of the city of Waukegan and at no time ever violated any law of the State or the city; that on July 19, 1939 the defendant Mancel Talcott, as liquor control commissioner and as mayor of the city issued written orders revoking said licenses and directing the plaintiffs to immediately discontinue their business; that these orders were delivered to the plaintiffs by the police officers of the city who forcibly removed the licenses from the premises of the plaintiffs. It was further alleged that no written complaint was filed with the local liquor control commission or commissioner in the form prescribed by law, signed and sworn to by five residents of the city and that no hearing was had and no notice was ever given the plaintiffs, and they were not given an opportunity to be heard upon the question of revocation or ever given an opportunity to present any defense. The complaint then charged that said businesses of the plaintiffs have been developed by careful, diligent and painstaking efforts, that their business has steadily increased and the total volume is large and that by reason of the peculiar nature of their business if their respective places of business are closed and remain closed for more than 48 hours, their customers will be lost and the good will of the business destroyed.

The complaint then alleged that the plaintiffs, on July 20,1939, filed their appeals from the order revoking their licenses with the Illinois liquor control commission in Chicago, and that copies of their petitions are attached to the complant; that said appeals will not be heard until late in the month of August, 1939, that one of the prayers of each appeal was that the liquor control commission issue orders staying the effect of the orders issued by the defendant Talcott revoking their licenses until the determination of the appeals; that the liquor control commission refused to'issue such stay orders upon the sole ground that the commission was without jurisdiction and power to issue such orders; that said appeals are now pending, and each of plaintiffs intend to prosecute the appeals diligently and as expeditiously as the business of the Illinois liquor control commission will permit; that the defendants, their agents and employees and the police officers of the city of Waukegan, under the direction of the defendant William B. Blaylock, chief of police of the city, threaten to prevent plaintiffs from continuing their businesses by prosecutions under the statutes of the State of Illinois and the ordinances of the said city and by arresting the persons of the plaintiffs and their employees, that up to and including the 19th day of July, 1939, the places of business of both plaintiffs have been operated with strictest attention to all laws of the United States and of the State of Illinois and ordinances of the city of Waukegan, and that at no time have said places been operated in a disorderly or improper manner. The complaint then alleges that the plaintiffs have no adequate remedy at law for the following reasons: 1. The loss and damage they will sustain is such that adequate damage in a suit at law may not be recovered; 2. Numerous suits for damages would be required to be instituted separately by plaintiffs against the individual defendants and others whose names are to plaintiffs unknown; 3. That loss of business, custom and good will is incapable of estimation in money damage; 4. That any such suits at law would necessarily be delayed for long periods of time, during which time defendants and others would be free to enforce the wrongful and illegal orders and cause' further damage and injury to plaintiffs. The prayer of the complaint was that a temporary injunction issue immediately upon the filing of the complaint without notice and without bond, enjoining and restraining the said defendants, and each of them, and all" of their officers, agents or employees from in any manner enforcing the orders of the liquor control commissioner or commission of the city of Waukegan, and from in any manner interfering with, hindering, obstructing or stopping the businesses of the plaintiffs and that said preliminary injunction may be continued in force and effect until such time as the liquor control commission shall have heard, considered and finally adjudged plaintiffs’ appeals.

Upon the presentation of the foregoing sworn complaint to one of the judges of the circuit court, an order was entered restraining the defendant Talcott as local liquor control commissioner and mayor, the chief of police and others from in any manner enforcing or attempting to enforce the orders of the local liquor control commissioner or commission purporting to revoke the licenses of the plaintiffs and from in any manner interfering with, hindering or obstructing the plaintiffs or their employees in the operation of their businesses. Thereafter the defendants filed their motion to dissolve this preliminary injunction, setting forth seven reasons therefor, the sixth being that the preliminary injunction was issued contrary to law without notice and without bond. Upon notice to the plaintiffs, a hearing was had on July 25, 1939 and thereafter on July 31,1939 the motion was denied and an order entered directing that the preliminary injunction continue until the final determination of this litigation. The order provided, however, that “the plaintiffs file bonds in the penal sum of $300.00 within five days from the entry of this order and notice thereof to them, with surety to be approved by the Clerk, said bonds to operate retrospectively and to be filed nunc pro tunc as of the 20th day of July, 1939, and in the event of failure to file such bonds within the time specified, the injunction heretofore issued on the 20th day of July, 1939, be dissolved.” From this order the defendants have appealed.

Section 3, ch. 69, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.351], expressly provides that no court shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby unless it shall appear that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice. Section eight of the same chapter provides that before an injunction shall issue to enjoin a judgment, a bond in double the amount of the judgment must be given and section nine of the same act provides that in all other cases before an injunction shall issue, the plaintiff shall give bond in such penalty and upon such condition and with such security as may be required by the court or judge, provided, bond need not be required when for good cause shown the court or judge is of opinion that the injunction ought to be granted without bond. Section 10 provides that the bond may be entered into before the clerk of the court from which the writ is to be issued or before the court or judge but the security must be approved by the court or judge granting the injunction. Section 11 provides that all bonds shall be filed with the clerk before the writ issues.

Counsel for appellees insist that the question that this injunction was issued without notice and without bond can only be preserved for review by the entry of a special appearance by the defendants and the filing of a notice to dissolve limited solely to the want of notice and the failure to give bond. We do not think so. Bule 31 of the Supreme Court and rule 2 of this court provide that where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree to the trial court entering such order or decree. Appeal may be taken if the motion is denied, or if the court does not act thereon within seven days after its presentation. In Balaban & Katz Corp. v. Rose, 283 Ill. App. 615, relied upon by appellees to sustain their contention, it does appear that a special appearance was entered and the motion to dissolve was limited solely to the ground of want of notice but that case does not hold that a general appearance and a motion to dissolve for lack of notice along with other grounds is not appropriate. In Lange v. Massachusetts Mut. Life Ins. Co., 273 Ill. App. 356, the defendant entered a general appearance and moved to dissolve for want of notice and this practice was approved. Nor do we flunk that because other grounds were set forth in appellants’ motion to dissolve preclude appellants from urging, upon the hearing in the court below or upon appeal, in this court, their contention in this respect. In the instant case the only motion appellants filed was to dissolve the preliminary injunction. One of the grounds therefor set forth in their motion was that the preliminary injunction was issued without notice and without bond. Under our present practice a defendant filing a motion to dissolve a preliminary injunction should set up all available grounds therefor and it cannot be said that because he sets forth other grounds in addition to those that the preliminary injunction was issued without notice and without bond, that he thereby waives urging those reasons.

Counsel for appellees argue that the allegations of the complaint are sufficient to warrant the issuance of a preliminary injunction without notice and without bond and insist that if the injunction had not been granted appellees would have run the risk of being prosecuted for operating their businesses without a b'cense or if they closed that then their investment, which was substantial, would have been destroyed and their customers would have been lost. These allegations, in our opinion, would not authorize the issuance of the preliminary injunction without notice and certainly not without bond. Evidently the chancellor, upon the motion to dissolve, came to the conclusion that he erred at the time the preliminary injunction was issued in not requiring a bond because he then made a continuance of the preliminary injunction conditional upon appellees filing a $200 bond. If the preliminary injunction should not have issued without a bond, then this subsequent order in no way cures the defect. The order of July 20, 1939 directing the issuance of an injunction and the denial of the motion to dissolve the same are the matters reviewed by this court upon this appeal. As stated in Balaban & Katz Corp. v. Rose, supra, any order that was entered by the court on July 31,1939 to cure any error in its order of July 20, 1939 would be of no avail. Whether appellees were or were not operating their businesses at the time the complaint was filed and the injunction applied for does not appear from the allegations of the complaint, nor are there any allegations of fact showing why notice to appellants that the preliminary injunction was to be applied for would have in- any way prejudiced the rights of appellees, nor does it appear how the rights of appellees would have been prejudiced had the court required a bond to be given by them as provided by the statute.

Where it appears that a preliminary injunction is issued without notice, in a case where notice should have been given, or where the statute requires a bond to be given as a condition precedent to issuing a preliminary injunction and none is required, then it is the duty of this court, aside from any other question and without reference to the merits of the cause as made by the averments of the complaint, to reverse the order denying the motion to dissolve the injunction upon that ground. Koelling v. Foster, 150 Ill. App. 130.

In the instant case the injunction is too broad as it restrains appellants from in any manner interfering with, hindering or obstructing appellees or their employees in the operation of their businesses. It was alleged in the complaint that the appeals of appellees to the Illinois liquor control commission would not be heard until late in the month of August, 1939. This writ is binding on appellants until its dissolution or until the order granting it is reversed. Christian Hospital v. People ex rel. Murphy, 223 Ill. 244. This writ forbids appellants from in any way interfering with appellees in the operation of their businesses no matter what transpired .after the preliminary injunction was issued.

The order denying appellants’ motion to dissolve the preliminary injunction is reversed and the cause is remanded to the circuit court of Lake county, with directions to sustain appellants’ motion and dissolve the preliminary injunction.

Reversed and remanded with directions.