text:
    John Garlinski, Administrator of the Estate of Joseph Garlinski, Deceased, Appellee, v. Chicago City Railway Company et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 33,832.

      Opinion filed May 14, 1930.
    Rehearing denied June 2, 1930.
    Brown, Fox & Blumberg, for appellants; Frank L. Kriete, John E. Kehoe and Charles LeRoy Brown, of counsel.
    Philip Rosenthal, Stuart B. Krohn and Jacobson, Merrick & Latter, for appellee; Philip Rosenthal and Stuart B. Krohn, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

The plaintiff, "John Gfarlinsld, administrator of the estate of Joseph Gfarlinsld, deceased, brought this action in the circuit court of Cook county against the defendants, Chicago City Railway Company, Calumet and South Chicago Railway Company, corporations, and Henry A. Blair and Frederick H. Rawson, as surviving receivers of Chicago Railways Company, a corporation, doing business as Chicago Surface Lines, to recover for the death of Joseph Gfarlinsld, on the ground that the death was caused by the negligence of the defendants. The trial resulted in a verdict and judgment in favor of the plaintiff for $6,000, from which judgment this appeal has been taken to this court.

The amended declaration originally consisted of six counts, of which the fourth, fifth and sixth were dismissed on motion of plaintiff at the close of plaintiff’s case.

The first count of the amended declaration charged that defendants were operating a city railways system along Milwaukee Avenue and that, on the day of the accident, they were running and operating a certain motor car and trailer in a southeasterly direction along said street,- that plaintiff’s intestate was about to become a passenger, but the defendants so negligently and carelessly operated said car that plaintiff’s intestate was thrown upon the ground and killed. The count further alleged that the deceased left him surviving a father, mother and two brothers.

The second count charged that plaintiff’s intestate was about to become a passenger on said car and it was the duty of the defendants to give him a reasonable opportunity to board said car in safety, but the defendants carelessly and negligently caused said car to be suddenly started and the door of said car to .be suddenly closed while plaintiff’s intestate was in the act of boarding said car, so that a portion of his clothing was caught, and fastened between the edge of said door and the body of said street car, and he was thrown to the ground and killed.

The third count alleged negligence on the part of the defendants in causing one of their cars to suddenly start forward while plaintiff’s intestate was in the act of boarding said car.

The street car in question consisted of a motor and a trailer, each of which was between 48 and 50 feet in length and joined by a coupler bumper. The motorman was stationed on the front of the motor car, which preceded the trailer and there was a conductor upon the front or motor car and another conductor upon the trailer. Both cars were pay-as-you-enter cars, with folding doors at the front and rear; they were known as “double end” cars; the doors at all four corners of the cars were the same. Bach entrance to the platform of the car had two separate doors, one for entering passengers and the other for dismounting passengers. The doors consisted of panels which folded against each other when the door was opened. When the doors were closed, the panels spread out and made a flat surface, and at the same time the step of the car was raised só that it became flush with the closed doors of the car. The doors and the step worked in conjunction by reason of some mechanical operation. This operation, in the case of the trailer, was controlled by the conductor while standing upon the front platform of the trailer, by means of air pressure regulated by a pedal or handle.

The accident to plaintiff’s intestate is charged to have occurred while he was in the act of boarding the front platform of the trailer. It appears that these cars were so constructed that, while any one of the doors was open, the electric circuit was disconnected and the cars could not be started. It was, however, possible to disconnect these switches so that the car could be run even though one or more of the doors of the car or trailer were open. There was also on the front platform of the front car occupied by the motorman, a light which indicated when the doors were open and when they were closed.

The accident happened at the intersection of Milwaukee Avenue, North Avenue and Bobey Street, three intersecting streets in the City of Chicago. Upon each of these streets was a car line. Stop and go lights were in operation at this point for the purpose of regulating traffic on the three streets. The car and trailer in question was bound in a southeasterly direction over Milwaukee Avenue and had reached this intersection just prior to the time of the accident. A stop was made at this point for the purpose of permitting passengers to alight from and board said two-car train and, while they were in the act of doing this, the red light came on and it was necessary for said train to remain at that point until it-got the signal to go.

The accident in question happened about 7:40 o’clock in the morning of January 22, 1927. There is evidence that there was ice on the street and it also appears that it was a busy street intersection. Many persons alighted from and boarded said train at this point. Those in charge of this two-car train- testified on behalf of the defendants, that they did not see plaintiff’s intestate, nor witness the accident. The conductor on the trailer said that he could from his position have seen, with the doors closed, any person close to the door at the time the car started, but that he saw no one. The only eye-witnesses to the accident were three men who testified on behalf of the plaintiff.

Eoarty, the first witness, testified that he saw Garlinski running along by the side of the car while it was standing still, that he, Eoarty, then turned and walked north and heard plaintiff’s intestate cry out and saw him in a falling position and that it appeared as if his overcoat was caught on some obstacle on the car.

The two other witnesses, Green and Simpson, were city firemen who were driving in a Dodge sedan in the same direction in which the two-car train was proceeding. They were on the southwest side of Milwaukee Avenue between the trailer and the curb, with the front end of their car about opposite the middle of the trailer. The automible was driven by Simpson and he stopped it at this point while the passengers were boarding and alighting from the street car. The red light was on at the street intersection.

Green testified that he saw the boy trying to get on the front car and that the door was closed; that he then went to the rear car; that at the time he went to the rear car there were eight or ten people boarding it and the next time he saw plaintiff’s intestate the doors were closed and plaintiff’s intestate was rolling along under the street car.

Simpson, the driver of the Dodge sedan, testified that at the- time of the accident there were quite a few people getting on the car and plaintiff’s intestate stepped off of the curb and went toward the rear entrance of the front car and, as he did so, the doors closed and he then went toward the trailer to get on the front entrance; when he got there he had his foot up and at the same time the doors closed and caught his coat in the door and the street car started.

It appears that those in charge of the two-car train were unaware of the accident and it proceeded down Milwaukee Avenue a considerable distance before those in charge of the two-car train were notified that an accident had happened.

Plaintiff’s intestate at the time of the accident was 16 years of age and working and there is evidence in the record to the effect that he contributed to the support of his family.

It is strongly urged that the judgment is not supported by any evidence legally tending to prove actionable negligence on the part of the defendants and that the trial court should have directed a verdict. In support of this contention it is insisted that plaintiff’s intestate was not a passenger and that, by the closing of the doors, the defendants denied him the right of becoming one, and were legally within their right in so doing.

On the other hand, counsel for the plaintiff insists that plaintiff’s intestate presented himself at the place in question for the purpose of becoming a passenger; that the defendants had stopped their cars at that point for the purpose of receiving passengers and, among others, the plaintiff; that it became the duty of the defendants to exercise reasonable care toward plaintiff’s intestate and not to start their car while plaintiff was in the act of boarding it for the purpose of becoming a passenger.

A number of authorities are cited by counsel for defendants to the effect that a carrier is not required to accept as passengers any and every one. We agree that this is a correct rule, but are also of. the opinion that, where a person under proper circumstances, presents himself for the purpose of becoming a passenger on a street car, it then becomes the duty of a carrier to give him a reasonable opportunity to safely board the conveyance. Bach case depends upon the particular circumstances involved. The rule is well expressed in the opinion of the Supreme Court in the case of Klinck v. Chicago City Ry. Co., 262 Ill. 280. The court in its opinion, said:

‘‘While it is necessary to prove either an express or implied contract of carriage between the carrier and the alleged passenger, yet the act of the carrier in stopping a street car, or in bringing it almost to a stop, at a place where it is accustomed to receive and discharge passengers, is an implied invitation to persons intending to take passage thereon at that place to board the car, and the act of any such person attempting to board the car is an acceptance of the implied invitation and creates the relation of carrier and passenger. It is the duty of those in charge of the car to know whether or not the implied invitation has been accepted, and the carrier cannot escape liability by showing that its employees in charge of the car did not know that the person who has accepted the implied invitation intended to board the car. ’ ’

Defendants rely upon the case of Lavander v. Chicago City Ry. Co. 296 Ill. 284, as distinguishing the rule announced in Klinck v. Chicago City Ry. Co., supra. We cannot say, however, but that the rule announced in the Klinch case is adhered to in the Lavan der case. In the latter case the court found that there was a sharp conflict in the evidence as to whether or not the plaintiff was at the time of the accident a passenger and held that, under such circumstances, it was improper for the trial court to instruct the jury to the effect that “it is the duty of a street car company t.o use the highest degree of care and caution consistent with the practical operation of its road and the mode of conveyance adopted, to provide for the safety and security of the plaintiff.” No such instruction is involved in the case at bar, nor does the plaintiff take the position that the defendants owed him the highest degree of care consistent with the practical operation of the road, but rather insists that the defendants owed him the duty of giving him a reasonable opportunity to board its train and become a passenger.

The only direct evidence in the case as to the manner in which the accident happened is that of the witness Simpson, to the effect that he saw other passengers boarding the trailer and that plaintiff’s intestate was standing by the door with his foot raised and that the doors closed and caught his overcoat. From these facts it could fairly be inferred that plaintiff’s intestate was in the act of boarding the car and that the conductor in charge, by the exercise of reasonable care, should have known that fact. Any other theory as to the manner of the accident would have been speculative and argumentative. We believe the evidence of Simpson, standing alone, was sufficient to raise a question of fact which properly presented a matter for consideration by the jury as to whether or not plaintiff’s intestate was, in fact, presenting himself in a reasonable manner to the street car company in order to become a passenger on its car. Rost v. Noble & Co., 316 Ill. 357.

If there is any evidence reasonably tending to prove tbe allegations in the declaration, the trial court should submit the cause to the jury for its determination. The rule is well stated in the case of McFarlane v. Chicago City Ry. Co., 288 Ill. 476, from which we quote:

“The first point to be considered is whether or not the court erred in refusing to give the peremptory instruction. This raises the question whether there was any evidence which fairly and reasonably tended to show that the injuries received caused the death of Alice McFarlane. Primarily, it is a question for the trial court whether the evidence, with all the legitimate and natural inferences to be drawn therefrom, is sufficient, if credited, to sustain a verdict. On consideration of such a motion the trial court has nothing to do with any question as to the preponderance of the evidence or the credibility of the witnesses or the force to be given to evidence having a tendency merely to impeach the veracity of the witnesses. The only question which the court has to determine is whether there is in the record any evidence which, if true, fairly tends to prove the allegations of the declaration. (Libby, McNeill & Libby v. Cook, 222 Ill. 206; Woodman v. Illinois Trust and Savings Bank, 211 id. 578.) The question of the weight to be given the testimony is a question for the jury.”

From our examination of the declaration in the cause, we are of the opinion that there is sufficient stated to support the verdict. Pleas of the general issue were filed to the declaration and issue joined. No objection was made to the declaration by demurrer or otherwise, nor an opportunity given plaintiff to correct such minor details in the pleading as might have been afforded him if such had been done. There was no such variance as caused defendants any surprise during the course of the trial, by reason of a difference or divergence in the proof from the three counts of the amended declaration, upon which the cause of action was tried. We are of the opinion that the trial court properly denied defendants’ motion for a directed verdict.

Objection is made to the giving of instruction number five on behalf of the plaintff. The instruction reads as follows:

“The Court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff and it is for him to prove his case by a preponderance of the evidence, still, if the jury find the evidence in the case, when considered all together, preponderates in his favor, it would be sufficient for the jury to find the issues in his favor.”

This instruction was approved in the case of Chicago City Ry Co. v. Bundy, 210 Ill. 39. It contained, however, the additional clause, “although but slightly.” This last clause which was eliminated from the instruction in this case, was condemned in the case of Molloy v. Chicago Rapid Transit Co., 335 Ill. 164. In the case at bar, this criticism cannot be made of the instruction.

It is insisted that the instruction is bad, in that it does not limit the right of recovery to the negligence charged in the declaration. This was held erroneous in the case of Molloy v. Chicago Rapid Transit Co., supra; but, in the case at bar, the jury was instructed on behalf of the defendants, instruction number 8 as follows:

“Before the plaintiff can recover in this case, he must prove by a preponderance of the evidence not only that deceased was injured, but that he was injured through some act or omission, which under the law would constitute negligence on the part of the defendants or their servants in some manner charged in one or more counts of plaintiff’s declaration, . . . ”

Again in instruction number 15, offered on behalf of defendants, the court instructed the jury as follows:

“The court instructs you that burden of proof is not upon the defendants to show that they are not guilty of the specific negligence charged in plaintiff’s declaration, but the burden is upon the plaintiff to prove that the defendants are guilty of such negligence as so charged in some count of the declaration; and this rule, as to the burden of proof is binding in law and must govern you in deciding this case.”

From these two instructions, it is apparent that the jury were told that their consideration of the question of negligence must be confined to such negligence as was charged in the declaration. Under the circumstances, we are of the opinion that the error, if any, in the giving of plaintiff’s instructions was cured by subsequent instructions given on behalf of the defendants.

Objection is made to the giving of instruction number three. This instruction has been approved in the case of U. S. Brewing Co. Stoltenberg, 211 Ill. 531, with the exception that, in the case cited, the words, “persons who saw the occurrence” are included and evidently by an oversight omitted from the given instruction in" the case at bar. The purpose of the instruction, however, was to advise the jury that they might consider circumstantial evidence, and we do not believe they were misled in this regard by the omission of the words quoted.

Instruction number 7, given on behalf of the plaintiff, was approved in the case of Deming v. City of Chicago, 321 Ill. 341.

The court gave 8 instructions on behalf of the plaintiff and 14 on behalf of the defendants. There was no error in the giving of instructions such as in our opinion would cause a reversal of the judgment. Neither do we believe" that there, was material error in the argument of counsel to the jury.

It is insisted that the court erred in its ruling upon certain questions asked by counsel for the defendants on cross-examination of one of plaintiff’s witnesses. It appears that the witness in question testified at the coroner’s inquest. Counsel for the defendants sought to interrogate him as to whether or not he made certain statements at that time and in his questions attempted to include only part of the questions and answers given. Upon objection the court required counsel to include the entire question and answer for the benefit of the witness. We can see no error in this. The witness was entitled to the previous question and answer in full. If there was any divergence between the original questions and answers, as given on this trial, it properly presented a matter for argument to the jury. The witness however, was entitled, in all fairness, to have his entire question and answer presented to him for denial or confirmation, rather than an isolated part or portion.

For the reasons stated, we are of the opinion that the judgment of the circuit court should be and it therefore is affirmed.

Judgment affirmed.

Ether and Holdom, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Wilson

license: Public Domain

text:
    Continental Illinois Bank & Trust Company, Trustee (formerly Illinois Merchants Trust Company, Trustee), Appellant, v. Standard Oil Company of Indiana, Appellee.
    Gen. No. 33,841.

      Opinion filed May 14, 1930.
    Rehearing denied June 2, 1930.

      Harris F. Williams, for appellant.
    Barrett, Barrett & Wermuth, for appellee; William C. Wermuth, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Complainant, Continental Illinois Bank & Trust Company, filed its bill in the circuit court of Cook county to restrain the defendant, Standard Oil Company of Indiana, from installing and operating certain gas tanks to be used as part of and in connection with a gasoline filling station on the premises at 406 Pratt Boulevard, Chicago.

The cause was heard upon the bill as amended, answer to the bill as amended and replication. The cause was referred to a master in chancery, on the sole question as to whether or not conplainants would be damaged by the acts complained of in the bill of complaint as amended.

From the facts it appears that the Standard Oil Company of Indiana was the owner of lot 18, in block 41 in Rogers Park. The complainant, as trustee, was possessed of the legal title to lot 17 in the same block and subdivision. Lot number 18, owned by the defendant, extended along a dedicated street known as Grlenwood Avenue. Opposite lot 18, and running parallel thereto, along the dedicated street known as Grlenwood Avenue, is the right-of-way of the Chicago, Milwaukee & St. Paul Railroad Company. The district in which both lots 17 and 18 are located has been zoned by the City of Chicago for commercial purposes. The master found, and it appears to be the fact, that there was no ordinance in the City of Chicago requiring frontage consents for the erection of a gasoline filling station. There appears, however, to have been in effect at the time a provision of the Chicago Code, Chapter 41, entitled “Inflammable Liquids,” which provides that it shall be unlawful to install any tank or tanks for the storage of any liquids (including gasoline) without first obtaining the written consent of the property owners representing a majority of the total frontage in feet of any lot or plot of ground lying wholly within lines 150 feet distant from and parellel to the boundaries of the lot or plot of ground upon which said tank or tanks are to be installed.

Lot 18, belonging to the defendant, while running along the dedicated street known as G-lenwood Avenue, in fact fronted on Pratt Boulevard. Lot 17, owned by the complainant, as trustee, also fronted on Pratt Boulevard. The dedicated street, known as Glenwood Avenue, runs north and south. Pratt Boulevard runs east and west.

The defendant procured from the city and the North Shore Park Commissioners, permits for the erection of the buildings necessary for its filling station and driveways into its property. None of these permits required frontage consents. Complainant’s lot was improved with a two-story frame residence which was 23 or 24 years old. Lot 18, after its purchase by the defendant, was divided into two lots, one fronting on Pratt Boulevard upon which the filling station was to be erected, and the other, the rear lot, extending along the dedicated street known as Glenwood Avenue, to a vacated alley. It was upon this second lot, created out of lot 18, owned by the defendant, that the tanks were to be placed and it was for the purpose of installing the tanks upon this second lot, created out of lot 18, that the permit was obtained from the city.

The frontage consents required by the city included the signature of the Chicago, Milwaukee & St. Paul Railroad Company and the Standard Oil Company’s consent as to the lot owned by it fronting on Pratt Boulevard and extending along the dedicated street. These consents, if within the meaning of the ordinance and valid, constituted over a majority of the requisite frontage consents.

It is urged as ground for reversal: first, that the defendant had not the right to divide its lot, as this was done solely for the purpose of obtaining the requisite frontage consent and that, without this arbitrary division, it would have been unable to comply with the ordinance requiring a majority of the frontage consents. Second, that the Chicago, Milwaukee & St. Paul Railroad Company is a foreign corporation and had no right to sign the frontage consent and, moreover, that even if it had such right, there is not sufficient evidence showing that the person signing for the railroad company had authority so to do. Third, the chancellor erred in finding that there was no special damage to the complainant by reason of the installation of the tanks and the use to which they were to be adapted.

In regard to the first proposition, there appears to be no reason preventing the owner of a lot from dividing it as he sees fit. If that part of lot 18, facing Pratt Boulevard, was to be used for any other purpose than a filling station, the question would not arise. It is insisted that this arbitrary division of the lot is made by the defendant for the sole purpose of permitting it to include the frontage consent of that part of its own lot lying along the dedicated street and fronting on Pratt Boulevard. None of the tanks are installed on the front part of lot 18, which originally was 179 feet long, but only on that part of lot 18, carved out and set apart by the defendant as a separate lot. If it had the legal right to do this, and by so doing strictly complied with the ordinance, we are not prepared to say that its conduct in so doing would be such a fraud as in law would nullify its right to make the division of lot-18, as has been done.

As to the second point advanced by counsel for complainant, namely, the right of the Chicag’o, Milwaukee & St. Paul Railroad Company to sign the consent, we are of the opinion that while the railroad company is a foreign corporation, still under Cahill’s Illinois Revised Statutes of 1929, chapter 32, section 84, f[ 84, it has the same rights and duties as a domestic corporation if admitted to do business in this State. The railroad appears to be the title owner to the property and, in the absence of any restrictions in the deed under which it holds, we are of the opinion that its rights under such deeds of conveyance would give it the right to grant a frontage consent. Its interest in adjacent property is the same as other owners of real estate. Spierling v. Ohl, 232 Ill. 581; Theurer v. People, 211 Ill. 296. The answer of the defendant denied the alegation of the bill of complaint as amended, namely, that the person signing the frontage consent was not, in fact, the agent of the railroad company. The burden was upon the complainant to prove this allegation of its bill. Tibbetts v. West & South Towns Street Ry. Co., 153 Ill. 147. It has not done so.

As to the third proposition advanced by complainant, the master’s report found that there was “practically no testimony offered showing any damage to lot 17, or to its present or future occupants by reason of the installation of the gasoline tanks alone and exclusive of the filling station.” This finding of the master was approved by the chancellor.

It is attempted to defeat the permit on the theory that the installation of the tanks is necessary to the operation of the filling station and that, therefore, the court should consider the question as to wdiether or not the filling station, by its erection, would cause special damage to complainant. Filling stations and gasoline tanks in connection therewith, have become necessary to city life and are not nuisances per se. Complainant conld not object to the erection of the filling station alone because of damage to its property, nor could it object to the installation of tanks alone, unless it could show special damage. The district in question was a commercially zoned district and the physical facts show a railroad embankment running along one entire side of the dedicated street known as Grlenwood Avenue, upon which the property of the defendant fronted. The tanks, when installed, were below ground and out of sight, and the only damage which might result to complainant would be by reason of an increased fire risk and, consequently, an increase in insurance rates. The master found in his report, which was affirmed by the chancellor, that there was no testimony that the complainant’s property would be unduly exposed to fire risk. There was testimony on behalf of the defendant that the insurance premiums would not be increased. The very purpose of the ordinance in question was to do away with the hazard in the installation of gasoline tanks similar to those involved in this proceeding.

The attempt to couple the filling station and the tank together, in our opinion, is unavailing to the complainant, as this action is not to restrain the erection of the filling station but only of the tanks. While it is true that they have to be run in conjunction with each other, nevertheless, we are not of the opinion that any special damage created by the erection of the filling station should be charged to the installation of the tanks. If this could be done, it would amount to saying that while no objection could be made to the erection of a filling station, nevertheless, it could not be operated because of the objection to the installation of the tanks necessary for its operation. The complainant could recover, if at all, only on the ground of special damage. Joseph v. Wieland Dairy Co., 297 Ill. 574.

The court in that case says:

“A court of equity will not at the suit of an individual restrain the threatened violation of an ordinance regulating the erection of buildings where the injunction is sought merely for the enforcement of the ordinance and not because of special damage to the individual, but where it is shown that in addition to the violation of the ordinance the erection will work special and irreparable injury to the property of the individual he may obtain relief by injunction.” See also Morrison v. Standard Oil Co. of New Jersey, 105 N. J. Eq. 104.

We are unable to say that complainant has shown any special damage which would result to it individually by reason of the installation of the tanks in question.

For the reasons stated in this opinion, the decree dismissing the bill for want of equity is affirmed.

Decree affirmed.

Byner, J., concurs.

Holdom, J., not participating.


text:
    Edward J. Hunt, Appellee, v. Monika Bell, Appellant.
    Gen. No. 33,880.

      Opinion filed May 14, 1930.
    Cattell & Waldron, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Wilson

delievered the opinion of the court.

Edward J. Hunt, plaintiff, filed his action in the-superior court of Cook county, in which Monika Bell was named as defendant. December 21,1928, this case was dismissed for want of prosecution. July 11, 1929, said order of dismissal was vacated and the cause reinstated. The order to reinstate was entered after the term at which the suit was dismissed, based on a motion under section 89 of the Practice Act, Cahill’s Revised Statutes, chapter 110, If 89. The motion was supported by a petition filed in said cause and service was had upon the defendant to the original action by mailing a copy of the petition, together with a copy of the notice of the motion to her address in the City of Chicago.

Counsel for defendant, in the original action, was also served with notice of the proceeding and appeared and stated that he was no longer acting as attorney for the defendant in the action. A special appearance was filed by him, on behalf of the defendant Monika Bell, asking that the motion be denied for want of proper service upon the defendant.

Chapter 110, section 89 of the Practice Act, provides that error which could have been corrected by a writ of error ‘coram nobis “may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. ”

It is urged as a ground for reversal that such a motion being in the nature of a writ of error coram nobis, is, in fact, a new suit and that service by summons should be had on the original defendant to the action. We are citied to some authorities holding that the motion is in the nature of an original suit and that the defendant should be served with process. The proceeding, however, is supplemental to the original proceeding and, while in the nature of a new suit, must be entertained before the court entering the original order or judgment in the cause, and is entitled in the same manner as the original proceeding. McGrath & Swanson Const. Co. v. Chicago Rys. Co. 252 Ill. App. 476.

The procedure required by chapter 110, section 89 of the Practice Act, in our opinion does not require the issuance of summons, but does require process by reasonable notice.

Bule 21 of the superior court provides the manner in which notice shall be served. Section (b) of Buie 21 provides that service should be had by delivering a copy of the motion to the opposite party, if such party is not represented by counsel.

The Supreme Court of this State in the case of Haj v. American Bottle Co., 261 Ill. 362, lays down the general rule that, whether notice is required by statute or rule of court and the method of serving the same is not laid down, it is understood that there shall be personal service.

The letter mailed to the defendant in this cause was registered, but not accepted by the defendant. . It is not clear who refused acceptance of the registered letter, but the rule remains that it was not such service as was contemplated by section 89 of the Practice Act.

In our opinion the actual issuance of a summons and service by the sheriff is not necessary, but personal service of the motion on the defendant in the original action was requisite in order to give the court jurisdiction to entertain the motion.

We have not been aided in arriving at our conclusion in this case by briefs on behalf of the appellee.

For the reasons stated in this opinion, the order of the superior court, vacating the judgment dismissing the cause for want of prosecution, is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded.

Ether, J., concurs.

Holdom, J., not participating.


text:
    State Bank & Trust Company and Kathryne M. Westreicher, Trustees under the Last Will and Testament of John Westreicher, Appellees, v. Anna Foss et al., Appellants.
    Gen. No. 33,891.

      Opinion filed May 14, 1930.
    Ashcraft & Ashcraft, for appellants; Carroll J. Lord, of counsel.
    Poppenhusen, Johnston, Thompson & Cole, for appellees; Frederick Mayer, of counsel. Donald R. Richberg and Leo J. Hassenauer, for certain appellee; Leo J. Hassenauer, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is a hill in equity filed by State Bank and Trust Company, a corporation, and Kathryne M. Westreicher, as trustees under the last will and testament of John Westreicher, deceased, asking for a construction of the said will. The bill sets out at length the probate of the will; the issuance of letters testamentary to the executors; the filing of the inventory of the estate; the filing of the final account and report of the executors showing the amount on hand, the real estate left by the deceased, together with the amount .of income derived therefrom; the payment of the amounts devised by said will; the creation of a trust and the names and amounts of those to be benefited by reason of the trust and its final termination.

A copy of the will is attached to the bill of complaint and it is with the construction of this will that we are particularly concerned. It directs the payment of debts and funeral expenses, gives and bequeaths certain personal property, including certain shares of the capital stock of the Evanston Trust and Savings Bank to Kathryne M. Westreicher, wife of the testator; directs the payment of taxes and gives and devises all the rest, residue and remainder of testator’s estate, real, personal and mixed, to the State Bank and Trust Company, a corporation, and Kathryne M. Westreicher, the wife of the testator, as trustees.

The trust thus created by the will gives to the trustees the usual powers to invest and reinvest the principal and proceeds thereof and to sell, assign, lease, incumber, improve and convey said property or any part thereof as the trustees shall deem proper, to collect rents and receive dividends and to have full and unlimited power and authority as if said trust property were their own; to settle and determine whether such property be principal or income, but that all dividends not in money shall be deemed principal; said trustees to have the power to pay the charges and expenses in the management of the trust estate and to pay taxes and to have reasonable compensation for their services.

The trust thus created by the will further provides that the sum of $300 per month shall be paid to the wife of the testator during the term of her life. Said sum to be paid at all times, and if there be any surplus, then the trustees are to pay out of the net income of said estate the sum of $60 per month to Katie Stemper Firzlaff so long as she shall live and to Christian Stark $60 per month so long as he shall live, and after his death to pay said last named sum to the daughter of said Christian Stark if she be then living, so long as she shall live.

Provided further that if the testator leave no lawful issue surviving, then the trust shall continue until the time of the death of the last survivor of those provided for in the will and then terminate.

It is this clause of the will, section (f), which, it is contended, makes no provision for the disposition of the remainder of the income of the estate. The testator died without issue. The previous provision which provided for the division of the remainder of the income between the wife and the children, in the event the testator should die leaving issue, takes care of the surplus or remainder of the income in the event of such a happening, but the will makes no provision for the remainder of the income in the event testator dies leaving no issue. Section (g) of the will provides as follows:

“If I leave no lawful issue surviving, or if I leave lawful issue surviving, and all such issue die before the time for the distribution to them of the principal or corpus of my trust estate, then after the death of my wife, said Trustees shall pay out of the net income of my trust estate the sum of One Hundred and Fifty Dollars ($150.00) per month to the heirs at law of said Kathryne M. Westreicher, until the time for the termination of this trust; and said Trustees shall apply all the remainder of the net income of my trust estate to the payment of my debts until all of my debts are fully paid, but not longer, in any event, than twenty years from the time of my death, and after the payment of my debts said Trustee shall pay out of the principal or corpus of my trust estate the sum of Two Thousand Dollars ($2,000.00) to St. Jacob’s Church, . . . and after the payment of my debts and the payment of said sum of Two Thousand Dollars ($2,000.00) to St. Jacob’s Church, said Trustees shall pay out of the net income of my trust estate, in monthly installments to the persons in this paragraph named, the amounts set after their respective names, until the time for the termination of this trust, viz.: To my niece, Anna Linster Foss, One Hundred Dollars ($100.00) per month, and after her death to her heirs at law One Hundred Dollars ($100.00) per month; to my nephew Nicholas Linster, Sixty Dollars ($60.00) per month; to my niece Amanda Scheibe Zacker, of Rensselaer, Indiana, Twenty-five Dollars ($25.00) per month; and if there be any net income of my trust estate remaining at the end of any year it shall be divided among the said Anna Linster Foss, Nicholas Linster and Amanda Scheibe Zacker, pro rata, in the proportions of their monthly payments hereinbefore provided for,” etc.

Provision is then made for the disposition of the entire estate remaining in the hands of the trustees at the termination of the trust.

Kathryne M. Westreicher, wife of the testator, insists that under a proper construction of the will, and particularly section (g), she is entitled to the remainder of the income of the trust estate after the payment of necessary operating expenses, during her lifetime.

Anna Linster Foss, Nicholas Linster and Amanda Scheibe Zacker contend that, the testator having died without issue and no provision being made in the will for the disposition of the balance of the income in such an event, they are entitled to the payments provided for them in section (g) of the will immediately, out of the balance of the income, after the payments specifically provided for, namely, payments of taxes and operating expenses and the further sums of $300 per month to Kathryne Westreicher; $60 to Katie Stemper Firzlaff and $60 to Christian Stark.

Those named in the will who were to receive the principal estate at the end of the trust, have failed to follow this appeal and have at no time contended that the remaining income should be left in the hands of the trustees and be considered as principal until the final disposition of the trust estate. The decree entered in the circuit court found that the remainder of the income was vested in Kathryne M. Westreicher and no objection was entered to this decree by those who would ultimately take at the end of the trust. Their position is evidently based on the fact that paragraph 145 of chapter 3, Cahill’s Illinois Revised Statutes of 1929, expressly provides that no person shall by will, deed or otherwise, dispose of any real or personal property in such manner as to cause in whole or in part an accumulation of income therefrom for a longer term than the life or lives of the grantor or settlor, or for a longer term than 21 years from the death of any grantor, settlor or testator.

It is the policy of this State, as expressed by the foregoing enactment, to prevent and provide against accumulations of income for a long period of time. The trust created by the will in this case, may, by its terms, extend over the period of limitation provided by law. Were it not for this provision and the policy of this State, we might have been inclined to hold that the remaining income vested in the trustees, to be held by them as principal, until the final settlement of the trust.

It is insisted on behalf of Anna Linster Foss, Nicholas Linster and Amanda Scheibe Zacker that, John Westreicher having died testate, it will be presumed that he intended to dispose of all his property and left no part of it intestate, and that this court should adopt any reasonable construction of the will which would dispose of this remaining income.

It is argued that the provision under section (g) that, “and if there be any net income of my trust estate remaining at the end of any year it shall be divided among the said Anna Linster Foss, Nicholas Linster and Amanda Scheibe Zacker, pro rata, in the proportions of their monthly payments hereinbefore provided for,” would indicate that they were to receive the amount provided for them in any event. It is also insisted that the semicolon at the end of the sentence, “until the time for the termination of this trust;” was an oversight, and that it was intended to have been a period, in which event it is said there would be no question as to the intention of the testator.

On the other hand, it is pointed out on behalf of the widow, Ivathryne Westreicher, that section (g) provides that the defendants named were to receive “after the death of my wife,” and that this provision was explicit and that the provision for the payments to the defendants, Foss, Linster and Zacker, were to be made only after such an event had happened.

Evidence was introduced showing that Anna Linster Foss and Amanda Zacker were about the same age as the widow of the deceased, and that the testator might well have known that there would be but little chance of their surviving her.

Keeping in mind the rules for the construction of wills, it appears to us that while no direct provision was made for the remainder of the income, nevertheless, the entire estate, including the income vested in the trustees and this remaining income, should be treated as intestate property which would require a construction of the will as to its disposition by the trustees. The Supreme Court of this State in the case of Minkler v. Simons, 172 Ill. 323, held that where no disposition was made of a share of the estate, it would descend as provided in the statute of descent. If this rule were followed in the case at bar, Kathryne Westreicher, as the widow of the deceased, there being no direct descendants nor issue of the deceased, would he entitled to all the remaining personal property undisposed of by the will. Provision was made in the will for the division of this remaining income in the event of surviving children of the deceased, by a division of one-half to the wife and one-half to the children, and it might well be argued that this provision showed an intention to provide for the wife out of the remaining income and, there being no children, she should receive it all.

Section (g), which provides for the payments to the defendants, Foss, Linster and Zacker, follows the express provision that such payments shall be made after the death of the wife. The argument to the effect that these defendants, or some of them, were about the same age as the wife and that there would be an improbability of their getting any benefit of the will, under a construction which gave the remainder of the income to the wife, is not so clear as to raise an implication that such was the intent of the testator. A gift by implication should be based upon some expression in the will. Bond v. Moore, 236 Ill. 576. The intention to be ascertained in construing a will is not that which by inference may be presumed to have existed in the mind of the testator, but such intention must be clearly expressed by words in the will or from an inference readily deducible therefrom. Pontius v. Conrad, 317 Ill. 241.

The provisions of section (g) are all contained in the same paragraph and following the express provision that these payments are to be made after the death of testator’s wife. The expression “if there be any net income remaining at the end of any year” in our opinion means at any year during the period when the payments to the defendants begin to run, and that would be after the death of the wife.

Under our construction of the will, as derived from the four corners of the instrument, together with the presumption that a testator intends to have his estate descend in accordance with the laws of descent and distribution in the event there should be any uncertainty in the will, we feel that the remaining income, after the payment of all proper operating expenses, should go to the widow, Kathryne Westreicher, during her lifetime, and then to be disposed of according to the terms of the trust. The trust itself is sufficiently broad to authorize the trustees to reserve out of such remaining income, such sums as are necessary to accomplish the purposes of the trust and to preserve it in a manner best fitting for its ultimate distribution.

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

Decree affirmed.

Ether, J., concurs.

Holdom, J., not participating.


author: Mr. Justice Holdom

text:
    Stephens-Adamson Manufacturing Company, Appellee, v. Fireman’s Fund Insurance Company, Appellant.
    Gen. No. 33,408.

      Opinion filed May 14, 1930.
    Lord, Wire & Cobb, for appellant; John S. Lord and Arthur C. Wetterstorm, of counsel.
    Winston, Strawn & Shaw, for appellee; John D. Black, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $7,788 with costs in favor of plaintiff and against the defendant insurance company, rendered in a trial before the court without a jury on a finding of the court that such amount was due plaintiff from defendant.

After overruling defendant’s motions for a new trial and in arrest of judgment, the judgment appealed from was entered.

The trial judge made the following findings of fact and marked the same and each of them “held,” as provided by statute :■ — •

“1. The Court finds that the defendant, Fireman’s Fund Insurance Company, issued to the plaintiff December 19, 1924, to be effective January 1, 1925, its policy No. T 262, called a transportation policy, to which was attached a rider in consideration of an additional premium of $750.00 which extended the policy to cover goods at various locations for the purpose of construction and/or erection until the completion of the work and acceptance of the plaintiff’s contract for construction and/or erection by the purchasers and to insure such goods against damage and loss by fire.
“2. The Court finds as a matter of fact that prior to the time of the issuance by the defendant of policy No. T 262 the plaintiff had sold Kanawha-Knox Coal Company, under two separate contracts, a coal tipple and coal tipple equipment for an aggregate sum of approximately $24,030.00, and that the Kanawha-Knox Coal Company had paid all of the purchase price due under said contracts except the sum of $18,116.19, which amount was unpaid March 14,1925.
“3. The Court finds as a matter of fact that the plaintiff delivered to the Kanawha-Knox Coal Company, at Elys, Kentucky, the machinery and equipment covered by two certain contracts between the plaintiff and Kanawha-Knox Coal Company, prior to February 25, 1925; that on February 25, 1925, certain of the machinery so delivered by the plaintiff to the Kanawha-Knox Coal Company, was damaged and destroyed by fire.
“4. The Court finds as a matter of fact that Kanawha-Knox Coal Company never paid plaintiff the balance of $8,116.19 remaining unpaid on the contracts in evidence in this ease, and that the defendant has never paid the plaintiff any amount under the insurance policy sued on in this case.”

A careful scrutiny of all the evidence, oral and documentary, found in the record, leads our minds to the conclusion that such evidence was of such effective, probative force as to justify the trial court in making the findings of fact above set out, and that such findings of fact are sustained by the proofs found in the record.

The defendant insurance company inter alia argues for reversal that the judgment in this appeal is on a policy of ‘‘transportation insurance.” This contention is not warranted by the terms of the insurance policy sued on and the rider attached thereto. Both the policy and the rider have this recitation: “The risks covered by this policy at the above described locations, are fire.” And the proofs show that the loss under the policy was occasioned by fire and was a fire loss. This provision is found in the rider of the policy:

“This policy is extended to cover goods insured hereunder, the property of the assured, while such goods are at the assured’s risk at various locations for purpose of or undergoing construction and/or erection, and shall continue to cover until completion of the work and acceptance of, the assured’s contract for construction and/or erection by the purchasers.”

We find as did the trial judge that at the time of such destruction the title to said property was in the plaintiff and covered by the insurance policy in suit as a fire loss; that the loss arising from the damage and destruction by fire of the insured property was $6,600.02, and that the judgment of $7,788.00 was arrived at by adding interest amounting to $1,188, on such, fire damage from the time of the fire to the date of the judgment.

Two contracts between plaintiff and the KanawhaKnox Coal Company, which were offered and read in evidence on the trial, contained the following provision:

“The title and ownership of the property called for and furnished under the terms of this contract shall remain in the contractor until the full and final payment therefor in cash shall have been made according to the terms agreed upon, and notes, if any, shall have matured and been paid in full in cash. . . . It is further agreed that no machinery, furnished under this contract shall become a fixture by reason of being attached to real estate and any part thereof may be separated from the real estate and may be repossessed by the contractor, or its agents, upon default in payment of the purchase money. ... No modification of this agreement shall be binding upon the parties hereto, or either of them, unless such modification shall be in writing, duly accepted by the purchaser, and approved by an executive officer of the contractor at Aurora, Illinois.”

The record fails to show any written modification of these contracts.

Defendant contends that the property destroyed by fire was delivered by the plaintiff to the KanawhaKnox Coal Company in April, 1923, as completely installed. Such statement, however, is not borne out by the evidence. The fire which destroyed the insured property occurred in February, 1925. On April 13, 1925, defendant resorted to a subterfuge in an attempt to escape liability for the loss under the policy by sending to plaintiff a check for $21.25, purporting to be returned premiums supposed to cover the loss in question. This check was returned by plaintiff to defendant. After the loss occurred it was too late to return premiums paid to cover such a loss. The attempt to return such premium after the fire was tantamount in law to an admission that the premium sought to be returned covered the property destroyed by fire.

We find no error committed by the court in the admission of evidence upon the part of the plaintiff; that there was no evidence introduced by plaintiff in an attempt to vary 'the terms of the policy and its riders, or any attempt made to prove a cause of action not covered by the pleadings. Furthermore, it is a rule of law that where a cause is tried by a court without the intervention of a jury, it will be assumed that the court in arriving at its findings and conclusions only took into consideration evidence legally admissible under the pleadings.

It is too late after finding and judgment to claim that the declaration does not state a cause of action. If the cause of action was defectively stated, such a declaration would be sufficient to sustain a judgment entered upon a trial before the court. There was no demurrer filed to the declaration and the defendant went to trial without making any contention that a cause of action was not stated in plaintiff’s pleading. The declaration does state a cause of action sufficient to sustain the judgment in this appeal.

As we have already pointed out, the probative force of the evidence is sufficient to sustain the court’s finding and judgment. We would have no right to reverse the judgment unless we could say from the record that the judgment is clearly contrary to. the preponderating force of the evidence. This cannot be said in view of the evidence found in the record. In Hovald v. Cunningham, 159 Ill. App. 134, it is said:

“The witnesses were before the trial judge, who had the benefit of observing the witnesses and their demeanor while testifying, and was, other things being equal, better qualified to pass upon their credibility than is a court of review from the mere reading of a statement of the substance of their testimony in the record. The findings of fact of the trial court, under such circumstances as appear in this record, will not be disturbed unless clearly and manifestly against the evidence.”

To a like effect is City of Quincy v. Kemper, 304 Ill. 303, in which it was inter alia said:

“Under the law and established rules of practice the conclusions of the trial judge should not be disturbed unless it clearly appears from the record that such conclusions are wrong.”

Finding no reversible error in the record before us, the judgment of the circuit court is affirmed.

Affirmed.

Wilsoh, P. J., and Ether, J., concur.


text:
    Irwin Ames, Appellee, v. Armour & Company, Appellant.
    Gen. No. 33,514.

      Opinion filed May 14, 1930.
    Rehearing denied June 2, 1930.
    Chas. J. Faulkner, Jr., Walter C. Kirk and George R. Herr, for appellant.
    Royal W. Irwin, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This case is here for the second time, and is reported with an extended statement of facts called from the evidence of the former trial, in 246 Ill. App. 118. We will not re-recite any of the facts appearing in that opinion, but adopt the same by reference as a part of this opinion. In other words, the opinion case supra should be read in connection with what is said in this opinion.

The cause went to trial in the first case on a declaration of two counts, charging general negligence. The pleadings upon the second trial were the same as those in the first, with this exception, that the plaintiff filed two additional counts charging that defendant recklessly and wantonly ran, managed, operated and propelled a certain motor vehicle, which forcibly and violently ran into and struck against plaintiff and one of the cars of the Chicago, Milwaukee & St. Paul Railway Company, upon which plaintiff was working, causing the injuries complained of. The second additional count likewise charged the conduct of defendant as reckless and wanton, which conduct was in effect the proximate cause of the accident.

At the close of plaintiff’s proofs, defendant moved for a directed verdict, which was sustained only as to the original negligence counts, and denied as to the two additional counts, under which two additional counts the trial proceeded to its termination.

The plaintiff was an employee of the Chicago, Milwaukee & St. Paul Railway Company at the date of the accident, November 19, 1924, as a switch foreman, and Frank W. Cooper was in the employ of the defendant, driving a motor truck of defendant, which came into collision with a car forming part of a freight train of plaintiff’s employer. Plaintiff in this suit, as this court held, as hereinafter stated, on the former appeal, was at the time of the accident engaged in interstate commerce. In the condition of the present record before us, this is a closed question by which the parties and this court are alike bound. Such finding of fact is to the present time the law of the case.

In defendant’s brief it says:

“After the reversal of the first judgment in this court, two additional counts were filed apparently based upon wilful and wanton negligence. At the close of the plaintiff’s testimony defendant moved for a directed verdict, which was sustained without objection as to the original counts, and the cause went to the jury only on the two additional counts. Because of this fact, we will refer only to such additional counts.” By this acquiesced in action of the court the original counts are out of the present case and the cause of action is now restricted to the two additional counts, in effect charging defendant with wilful and wanton conduct to which the accident in question is to be attributed.

The solution of the facts from the evidence was the province of the jury and if there is evidence in the record, which if undisputed, would be sufficient to sustain the verdict, we would hardly be warranted in disturbing such verdict, unless we were able to say from all the evidence that such verdict was contrary to its probative force. This we cannot do in the instant case. The evidence of the plaintiff and the driver of defendant’s colliding truck is in sharp conflict, making it the burden of the jury to find which evidence was most worthy of belief, and to give credence accordingly. If they believed the evidence of plaintiff and his witnesses in preference to that of defendant’s witnesses, they had that right and their verdict being the logical sequence of such condition of mind of the jurors should be sustained if it meets with our approval, which it does.

The evidence of the truck driver of defendant may have impressed the jury as being somewhat unreliable and unconvincing. The minds of reasonable men may have reached such a conclusion.

The accident to plaintiff happened while he was engaged upon a freight train composed of 19 cars when a truck of defendant being operated by its chauffeur collided with such freight train while traveling in a southerly direction on Kingsbury Street at the intersection of Rees Street, Chicago. The train was moving slowly at a rate of speed not exceeding four miles an hour. There was no obstruction between the train and the track to obscure the view of the chauffeur of defendant if he had proceeded with due care and circumspection. The engine was at the north end of the train pushing the freight cars in a southerly direction. South of Rees Street and beside the railroad tracks was a gas filling station at which on the occasion in question defendant’s truck stopped. The driver of defendant’s truck was familiar with that environment and had been so for more than six months prior to the date of the accident crossing the tracks as often as twice- daily, had knowledge of switching operations at that point and knew that engines and cars were liable to pass at any moment. When the truck driver was at the filling station he looked north for approaching cars as he had to cross over at that point. He then proceeded to back his truck north to Rees Street facing his truck to the east and stopping about 40 feet west of the tracks. As the train moved south plaintiff and his helper were standing on the southernmost car, saw the movements of the truck and realized that if the truck started ahead a collision might result. Thereupon they gave a signal to the engineer to stop, but the train failed to stop as quicldy as it might. Plaintiff and his helper then shouted loudly, waving vigorously to the driver of the truck. Another man standing on the street joined in the shouting. The driver apparently heard the man on the street as he looked at him but he did not heed their warnings.

Plaintiff, when the train did not stop, feared that defendant’s chauffeur might be injured or killed, and stood on the ladder at the north end of the car so that he might be in a position to reach the air cock in case the truck started. If the chauffeur had looked toward the car he could not have failed to see the plaintiff at the side of the car, notwithstanding he at one time testified that he did not see the cars until they were 6 feet away, and at another time he said he saw the string of cars to the north, but that he thought they were standing still. Still another time he stated that he neither looked to the north nor to the south as he proceeded across the track. After the cars started over the crossing the truck started forward striking the leading car and crushing the plaintiff. From any interpretation of the foregoing facts the jury might readily conclude that defendant by its chauffeur was guilty of the wilful and wanton conduct charged against it in the two counts of the declaration under which the cause proceeded to the jury.

In Heidenreich v. Bremner, 260 Ill. 439, it was held that:

“Whether a personal injury has been inflicted by gross or wanton negligence is a question of fact to be determined by the jury. Illinois Central Railroad Co. v. Leiner, 202 Ill. 624; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77. It is not always easy to state what degree of negligence the law considers equivalent to wanton or gross negligence. The character of an act as being, wanton or gross is greatly dependent upon the circumstances of each case. To constitute wilful and wanton negligence it is not always necessary to prove that the defendant was actuated by ill-will toward the plaintiff. An entire absence of care for the life, person or property of others, if such as exhibits indifference to consequences, makes a case of constructive or legal wilfulness, such as charges a person whose duty it was to exercise care with the consequences of the legal injury. ’ ’

We think this case peculiarly in point with the instant case when construed with the facts therein recited.

On the former appeal this court decided on the record then before it that plaintiff was guilty of contributory negligence and also found that “Inasmuch as it becomes necessary that the case be retried, we have examined the evidence on the question of whether or not the plaintiff at the time of the accident was engaged in interstate or intrastate commerce. In our judgment, the evidence sufficiently shows that at the time in question plaintiff was engaged in interstate commerce. ’ ’ The evidence in the record on that point is to the same purport and effect, and is consequently the law of the case and binding upon the parties, as well as this court, and therefore we hold to the same effect, that plaintiff at the time of the accident was engaged in interstate commerce.

The interjection of the two additional counts puts a different phase upon the whole case, as in the original counts no wilful or wanton conduct was charged. In the condition of the pleadings and the proofs, in which the conduct of defendant is charged to have been reckless and wanton, and where the jury finds that defendant was guilty of such reckless and wanton conduct, contributory negligence under these circumstances is not available as a defense in bar.

Two other questions remain to be disposed of, which are contended by defendant to be reversible error, viz., that the damages are excessive and that defendant was not guilty of wilful and wanton conduct, which was the proximate cause of the accident and damage to plaintiff. In both trials the jury found defendant guilty; the first jury assessed plaintiff’s damages at $6,000 and in the case at bar damages were assessed at $9,000. It was the province of the jury to determine the damages which plaintiff suffered as the result of the reckless and wanton conduct of defendant. The undisputed evidence is to the effect that plaintiff as the result of the accident practically lost the use of his right leg.

The driver of the offending* truck was an experienced driver and immediately after the accident, the evidence showed, he said, “I seen these cars coming down hut I thought you fellows was standing still, ’ ’ a statement de hors the statement of facts, and it was wilful and wanton conduct for him to proceed upon the theory that the cars were at a standstill. Furthermore, the driver proceeded in a reckless and wanton manner. It is in evidence, which the jury believed, that every effort was made to attract the attention of the driver in order to have him act so that the accident could not have happened. He drove recklessly on to Bees Street with nothing to obstruct his view, at which time plaintiff and others were shouting and warning him. He acted as if he was oblivious of the whole situation, and his conduct" in managing the truck, which caused the injury to the plaintiff was wilful and wanton, which the jury had the right to find from the evidence before them. He ignored all the warnings which were vociferously given, and knowing as he did, that a train or engine might pass over the tracks at any time, he put on the power and drove the truck without concern for the safety of plaintiff and others. In the situation in which he found himself, it was his duty in approaching the crossing to exercise due care for his own safety as well as that of others who might be crossing over Bees Street. The evidence abundantly justified the finding that defendant was guilty of wilful and wanton conduct, which was the proximate cause of the accident to plaintiff. The driver admitted that he heard shouts and warnings when he was 200 feet south of Bees Street, but in spite of these warnings he proceeded recklessly across. Such conduct was wilful and wanton. Even a trespasser is protected against wilful and wanton conduct. Ingram v. Jackson, 206 Ill. App. 466.

Defendant seeks to avoid liability upon the theory that the charge in the additional counts of reckless and wanton conduct was not a charge of wilful and wanton conduct. We think this is the refinement of distinction, and that the charge of reckless and wanton conduct was tantamount to a charge of wilful and wanton conduct.

Defendant further argues for reversal that it was error for the court to refuse to give instruction number seven which is as follows:

“The jury is instructed that the mere failure of defendant’s truck driver to look for approaching cars before proceeding across the tracks does not constitute wilful and wanton negligence.”

This was a peremptory instruction, bad upon its face. It would have been reversible error for the court to have given it. The court’s refusal to instruct a verdict in favor of defendant was without error.

We find no procedural errors in this record warranting a reversal of the judgment of the superior court, and its judgment is therefore affirmed.

Affirmed.

Wilsoh, P. J., and Ryner, J., concur.


author: Mr. Justice Ryner

text:
    Nellie Tierney, Appellee, v. Bruno Szumny et al., Appellants. Appeal of Bruno Szumny and Anton Szumny, Appellants.
    Gen. No. 33,570.

      Opinion filed May 14, 1930.
    Abraham Lepine and Pines, Morse & Stein, for appellants; Alvin E. Stein, of counsel.
    John E. Crahen and John J. Golden, for appellee; John E. Crahen, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

This appeal presents for our consideration the record of a trial court which is, to say the least, unique. There were entered, during the course of the proceeding, five so-called nunc pro tunc orders and there was returned what we, for the want of a better appellation, term a nunc pro tunc verdict as to the defendants who have appealed.

On February 23, 1927, the plaintiff filed her declaration in the circuit court of Cook county, charging that Bruno Szumny, Anton Szumny, Charles Smith and the Standard Cab Company, a corporation, were liable to her for damages on account of personal injuries sustained by her, through their negligence.

The Szumnys and the Standard Cab Company were served with summons. The latter filed pleas, but the Szumnys did not appear in the cause until after the verdict of the jury had been returned and then only a special appearance.

On March 9, 1928, when the case was at issue as to the defendant, Standard Cab Company, the cause was dismissed for want of prosecution. On March 22, 1928, which was at a subsequent term, the court, upon notice to the attorney for the Standard Cab Company, vacated the order of dismissal and reinstated the cause.

On January 21, 1929, the cause came on for trial. The plaintiff, by leave of court, amended her declaration upon its face. It appears from the record that the case was submitted upon the issues joined as to the defendant, Standard Cab Company, only. It further appears that, at adjournment time of court on the same day, the jurors were directed to retire and consider their verdict, which should be a sealed one, and the parties, in open court, waived the polling of the jury.

On January 22, 1929, the court entered a default order against the Szumnys, nunc pro tunc as of January 21, 1929. On the same day the jury returned a verdict in words as follows:

“We, the jury, find the defendants guilty and assess the plaintiff’s damages at the sum of $6,500.”

Charles Smith had been dismissed as party defendant prior to the trial of the case, so that the verdict evidently was against the Szumnys as well as the Standard Cab Company. It was so interpreted by the trial court when it entered judgment.

Their appearance not being on file, the Szumnys were not served with notice of the application for the order vacating the order of dismissal nor for the so-called rmnc pro tuno order of January 22, 1929. We have searched the record in vain to find any basis for the. entry of the alleged mmc pro timo order. Even though the Szumnys had not appeared in the cause they were entitled to some consideration. They were, at least, entitled to cross-examine the witnesses as to the extent of the plaintiff’s damage, yet the cause was tried before they were defaulted and, evidently, the jury was in some manner advised that they could or should return a verdict against them.

On January 25, 1929', the Szumnys entered their special appearance. On February 1, 1929, upon notice to the attorney for the Standard Cab Company, the court entered an order as follows :

“On motion of John E. Crahen and John J. Golden, attorneys for plaintiff in the above entitled cause, the court having jurisdiction of the subject matter herein and the parties hereto, and it further appearing to the court that on March 16, A. D. 1928, a motion was made by the plaintiff to vacate the order of dismissal entered in the above entitled cause on March 9,1928, and said motion was then and there continued to the next term of court, and the clerk of said court having failed to record the entry of said motion and the continuance thereof, it is hereby ordered that the following order be entered nunc pro tunc, as of March 16, A. D. 1928.
“ ‘On motion of John E. Crahen, attorney for plaintiff in the above entitled cause, it is hereby ordered that the motion to ,vacate the order of dismissal entered March 9,1928, be entered and continued to the next term of court.’ ”

On February 9, 1929, the court granted leave to the Szumnys to file notices, nunc pro tunc, as of February 22, and January 26, 1926. Both dates are a year prior to the date of bringing suit. These dates appear in the abstract. We have, however, examined the transcript of record, and find that leave was granted .to file the notices nunc pro tunc as of February 2 and January 26, 1929.

A discrepancy of 20 days in stating the day of the month and a further discrepancy of 3 years in stating the year in which an order was entered may not appear to counsel to be of any consequence but misstatements of this character do not expedite the work of a reviewing court.

On May 27, 1929, the Szumnys procured the entry of two nunc pro tunc orders. Both orders contain findings that the court, in entering them, considered the bill of exceptions and other documents of record, and the validity of the orders is not challenged by counsel for the plaintiff. The only comment they make is that, because the defendants found it necessary to have two nunc pro tunc orders entered, counsel for them “cannot very successfully contend that the records of the court are infallible.”

We think that the record before us indicates negligence of the attorneys in the case rather than misprisions of the clerk. It is hardly conceivable that the clerk should be at fault in so many instances in one case. Certainly the responsibility for the dismissal of the suit for want of prosecution cannot be charged to him. Even if the clerk was derelict in the discharge of his duties a little precaution on the part, of counsel would have obviated the results.

The bill of exceptions, in the record, does not contain the proceedings had upon the trial of the case. It shows only the motion, after the trial, of counsel for the Szumnys, to expunge from the record all orders entered subsequent to that of March 9,1928, and a colloquy between court and counsel in reference to the validity of the nunc pro tunc orders entered at the request of the plaintiff.

In the case of McKay v. People, 145 Ill. App. 277, this court said:

“The law does not permit the entering of orders in a cause or the signing of bills of exceptions after jurisdiction has been lost by lapse of time. It is true that after a term at which a cause has been disposed of has expired amendments of the record may be made by nunc pro tunc orders so as to make the record speak the truth. But in such cases the amendment must be based upon some official or quasi-official note or memorandum or memorial paper remaining in the files of the case or upon the records of the court, the judge’s minutes or some entry in some book required to be kept by law. A private memorandum of a witness is not sufficient; nor can the fact proposed to be incorporated into the record be based upon the recollection of the judge or other person, or upon affidavits or testimony taken after the event has transpired. And the basis upon which the amendment was made must be shown and preserved in the order or in the record. Hubbard v. People, 197 Ill. 15; Frew v. Danforth, 126 Ill. 242. The reason for the requirement that the basis of the amendment be shown and preserved is that the warrant for the exercise of the new jurisdiction may appear. The power of the court to exercise jurisdiction over the parties and the subject-matter expires with the termination of the term. Jurisdiction to exert power thereafter depends upon the existence of facts extrinsic to the record. Without such facts being shown in the record, upon review the record will show no jurisdiction.” See also Hubbard v. People, 197 Ill. 15; People v. Rosenwald, 266 Ill. 548, and People v. Leineche, 290 Ill. 560.

The order of March 9, 1928, was a final disposition of the cause. The order of March 22, 1928, vacating the order of March 9, 1928, was entered at a subsequent term and void upon its face. The so-called mine pro tuno order of February 1, 1929, fails to meet any of the requirements prescribed by the above-referred-to authorities and is likewise void, at least, as to the Szumnys. Neither the record nor the order shows any basis whatsoever for the entry of such an order.

The judgment of the circuit court of Cook county is reversed and the cause is remanded with directions to that court to dismiss the cause as to the defendants Bruno Szumny and Anton Szumny.

Judgment reversed and the cause remanded with directions.

Wilson, P. J., and Holdom, J., concur.


text:
    Benjamin Forster, Appellee, v. Sheridan Trust & Savings Bank, Executor of the Estate of George W. Walker, Deceased, Appellant.
    Gen. No. 33,588.

      Opinion filed May 14, 1930.
    Kirkland, Fleming, Green & Martin, for appellant; Weymouth Kirkland, Vernon M. Welsh and J. B. Cleaver, of counsel.
    Meier & Poorman and Simon T. Sutton, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

Two points are presented for our consideration by the brief of the defendant, who brings this appeal. One is whether the release of one party discharged the other parties, interested in a land syndicate, and the other is as to the competency of certain witnesses, interested in the syndicate.

The defendant is the executor of the estate of George W. Walker, deceased. The claimant presented a claim ■against the estate which was allowed by the probate court of Cook county in the sum of $5,000. Upon an appeal to the circuit court of Cook county the cause was tried de novo with a jury. The result was a verdict and judgment in favor of the claimant. The judgment was entered on March 30,1929.

William F. Behrens, called as a witness for the claimant, testified that he and Walker had been engaged in the real estate business. He identified a check made payable to his order for $5,000, which was signed by the claimant and delivered by the witness to Walker. He further testified, on cross-examination, that he and Walker were partners in all real estate deals; that the transaction, as a result of which the check was given, involved the purchase for a proposed syndicate of 400 acres of land, situated near Momence, Illinois, and that he had no interest in it except that of receiving a commission.

He also testified that he and Walker were both interested in the property; that he (Behrens) was doing the active work in connection with organizing the syndicate. It appears from the evidence that the object of the syndicate was to purchase the land and then sell it at a profit.

According to the testimony of Behrens the claimant gave him a check for $5,000, “because he was sold on the proposition”; that Walker retained the money but that the claimant did not become a member of the syndicate because the deal was never consummated. He also identified a document executed by the claimant, during the proceeding in the probate court, releasing him from liability on .account of the $5,000 check, and containing a covenant not to sue. He further stated that the claimant understood that he (Behrens) had no interest in the syndicate except to receive a commission.

Behrens was recalled to the witness stand and testified that he said to Walker, “I got five thousand dollars from Benjamin A. Forster (the claimant) to put into this syndicate at Momence at the original cost”; that Walker picked up the check and said, “indorse it, ’ ’ which the witness did; that he was present at a conference when the claimant said to Walker, “Where is my five thousand dollars” and that Walker replied, “Why, I have it Forster. I will either return it to you in ten days or give you a syndicate agreement. ’ ’

He also stated that the commission in which he was interested was to he paid by the owner of the land; that he gave Henry Schultz, who was interested in the transaction, $2,000 and made a deposit of $5,000 and that he was reimbursed for the deposit by Walker; that a Mr. Trankel was a partner with Walker and himself; that the plan of the partners was to form a purchasing syndicate and also a selling syndicate, and" to divide the commissions; that one McCarthy invested $10,000 in the second or selling syndicate, which sum the witness voluntarily refunded to McCarthy; that he had engaged in syndicate transactions with Walker involving lands of a total value of $18,000,000 and that he turned over all moneys coming into his hands to Walker.

Shirley A. Cowing was a witness for the claimant. On cross-examination he testified that he and his brother invested $5,000 in the proposed syndicate and .that they had a claim against the Walker estate for that amount. He, upon resumption of his direct testimony, testified to a conversation at which were present Trankel, Forster, the claimant, Behrens, Walker, himself and Walker’s secretary, that the claimant asked when he would get his syndicate papers, and that the conversation was as follows:

“Mr. Walker said, ‘We will have the papers in a day or a couple of days,’ and Mr. Forster (the claimant) asked him who was handling the money in the syndicate, Mr. Walker said he was, and that he had the money. He said, ‘Mr. Walker, I will either give you your money within ten days or I will give you your syndicate papers, one or the other.’ ”

The witness further said that the same statement and promise had been made to him by Walker and that the claimant had agreed to become a witness in his behalf when he (Cowing) prosecuted his claim against the Walker estate.

The mere fact that Cowing had a claim against the Walker estate, or that the claimant had indicated his willingness to be a witness for Cowing, did not render the latter incompetent to testify.

In the case of Ackman v. Potter, 239 Ill. 578, the Supreme Court of this State said: “To render a witness incompetent he must, in general, have a legal interest in the event of the suit, and such interest must be certain, direct and immediate, otherwise his interest goes to his credibility and not to his competency. (Illinois Mutual Fire Ins. Co. v. Marseilles Manf. Co., 1 Gilm. 236; Curtenius v. Wheeler, 5 id. 462.) A witness is not rendered incompetent by reason of the existence of an inchoate right of dower which depends upon the contingency that he survive his wife. Pain v. Farson, 179 Ill. 185.”

In the ease of Bellman v. Epstein, 279 Ill. 34, the administratrix of the estate of Henry J. Bellman, deceased, brought suit upon a note executed by Max Epstein. The only defense relied upon was that Epstein had paid the amount of the note to Elias Mayer, by authority of Bellman, in discharge of a debt of Bellman to Mayer. In holding that Mayer was a competent witness for the defendant, the court said: “The interest which disqualifies a witness must be some legal, certain and immediate interest, however minute, either in the event of the cause itself or in the record as an instrument of evidence in a subsequent action to which he is a party against him or in support of his own claims. The interest of the witness must be in the event of the cause itself and not in the question to be decided,” and again: “If the plaintiff succeeded and obtained judgment against Epstein the judgment would have no direct and immediate operation or effect regarding any claim of Epstein against Mayer for the money paid. In case of the defeat of Epstein in the suit any alleged claim he might have against Mayer could only be determined in a subsequent action. If the plaintiff: should be successful in overcoming the defense of payment and the defendant should sue Mayer and offer the record in evidence, it would be offered against a stranger to the suit in which it was rendered. . . . The judgment in the suit to which Mayer was not a party not being an adjudication of his liability in a possible subsequent action of the defendant against him, the record would not be legal evidence for or against him and he was a competent witness.”

Counsel for defendant contend that neither Cowing nor Behrens was a competent witness. They frankly admit that they have been unable to find any authority directly in point to support their contention. But grant that the question of Behrens competency is a doubtful one, we consider any objection to his competency was waived in the trial court. Counsel must have known, as a result of the trial in the probate court, the business relationship existing between the witness and Walker. If they did not know it, enough was disclosed upon the direct examination of the witness to apprise them that a question as to his competency might arise.

But counsel, instead of immediately asking permission of the court to examine the witness on his voir dire, proceeded to cross-examine him at length, in the presence of the jury. The law will not permit a party litigant to speculate as to whether the testimony of an incompetent witness may be favorable to him and then, when he discovers that it is unfavorable, raise the objection that the witness was incompetent.

In the case of Chicago Title & Trust Co. v. Sagola Lumber Co., 242 Ill. 468, the court stated the rule to be as follows:

“Where a party is aware of grounds that disqualify a witness, he cannot be permitted to sit by and speculate as to the character of the evidence and afterwards object to the competency of the witness if his evidence turns out to be unfavorable to him. A party against whom a disqualified witness is offered may object and bring the matter to the attention of the court before the evidence is given, or he may, if he sees proper, waive the disqualification and permit the witness to testify, and by failing to make his objection in apt time he is presumed to have waived his right. (1 Greenleaf on Evidence, sec. 421.) A party cannot after-wards raise the question of the incompetency of a witness by a motion to exclude his evidence if the grounds of exclusion were known to him at the time the evidence was given. (Hanford v. Obrecht, 49 Ill. 146; Chicago Union Traction Co. v. May, 221 id. 530.) Appellant knew that 0’Callaghan was dead, and when the witness Browne was asked with reference to the conversation the objection to his competency should then have been made. We do not think that appellant has properly waived this question for review.” See also Rosengren v. Manufacturers Nat. Bank, 220 Ill. App. 608, where the court quoted from Greenleaf on Evidence as follows:
“In regard to the time of taking the objection to the competency of a witness, on the ground of interest, it is obvious that, from the preliminary nature of the objection, it ought in general to be taken before the witness is examined in chief. If the party is aware of the existence of the interest, he will not be permitted to examine the witness, and afterwards to object to his competency, if he should dislike his testimony. He has his election, to admit an interested person to testify against him, or not; but in this, as in all other cases, the election must be made as soon as the opportunity to make it is presented; and failing to make it at that time, he is presumed to have waived it forever. ’ ’

In the instant case no specific objection as to the competency of either witness was made. During the cross-examination of Cowing, counsel said that they contended that both witnesses had such an interest as would disqualify them under the statute, but no motion was made to strike the testimony of either.

There is another reason why the defendant should not be heard to complain of the incompetency of witnesses. The principal ground urged for a reversal of the judgment of the trial court is that Behrens was a partner' of the deceased and that, therefore, the release given to Behrens had the legal effect of releasing the estate. The only basis tending to support the contention that there was a partnership rests upon facts and legal conclusions developed upon the cross-examination of Behrens and Cowing. Certainly counsel cannot use evidence to serve their purpose and, in the same breath, say that it ought not to be considered because of the incompetency of the witnesses furnishing it, and at their instance.

We come now to the consideration of the legal effect to be given to the so-called release. It is not set out literally or in substance in the abstract, and, under the rules of this court, we could wholly disregard it. An abstract is the pleading of the party who files it and a reviewing court is under no obligation to search the record for the purpose of discovering grounds for the reversal of a judgment or decree of a trial court. We have, however, examined the transcript of record and. find that instrument, in question, is as follows:

‘ ‘ For and in consideration of the sum of One Dollar ($1) this day in hand paid to the undersigned, the receipt., of which is acknowledged, and for other good and valuable considerations, likewise acknowledged, the undersigned does hereby release, discharge and forever acquit William F. Behrens of and from any account, claim and demand arising out of a certain check dated January 19, 1926, signed by the undersigned, made payable to the order of the said William F. Behrens, in the principal sum of $5,000; and for the same consideration, the undersigned does hereby covenant with the said William F. Behrens that the undersigned will not at any time hereafter bring any suit or action against the said William F. Behrens for the collection of the principal and the interest, because of the said check.
“Dated at Chicago Heights this 22nd day of November, A. D. 1927.
(Signed) Benjamin A. Forster.”

It will be noted that the document recites only a nominal consideration and is not under seal. The first part of it purports to be a release but it concludes with a covenant not to sue. Upon the trial in the circuit court counsel for the claimant offered to stipulate that the instrument was executed during the trial of the claim in the probate court and at the direction of Judge Horner for the purpose of removing any question as to the competency of Behrens. The response of counsel for the estate was, “We might also want to use it as a part of our defense. We cannot stipulate for the purpose it was given in Judge Horner’s courtroom.”

In their brief counsel for the estate say: “It appears that the release in question was executed and delivered while a hearing on this claim was in process in the probate court of Cook county. No explanation is given in the record as to why a release was given at this particular time.”

We think it is evident, from all the facts and circumstances, that the so-called release was executed and delivered for the sole purpose of attempting "to remove any doubt as to the competency of Behrens as a witness in the probate court. Behrens testified that he thought the document was executed in the anteroom of Judge Horner’s court room. He further said that, at the time, he had been sworn as a witness and was testifying in the probate court with reference to the claim involved on this appeal. Certainly it was not the intent of the claimant to release the estate at the very moment he was engaged in prosecuting his claim against it.

Many authorities are cited, by counsel for the estate, holding that a party executing a release is bound by the legal effect of the words used regardless of ignorance of their import or of an intention to accomplish a different result. To apply the strict rule to the instant case, would, in our opinion, result in an injustice. We think that the rule stated in Parmelee v. Lawrence, 44 Ill. 405, is applicable to the facts in this case. The court there said:

“On the question as to the effect of this release, counsel for appellants have cited the cases of Benjamin v. McCormick, 4 Gilm. 536, and Rice v. Webster, 18 Ill. 331. It will be observed from what we have already said that there are facts in this case which widely distinguish it from either of those. We would further add that the weight of the modern authorities is against these cases, and in favor of the more reasonable rule, that where the release of one of several obligors shows upon its face, and in connection with the surrounding circumstances, that it was the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, shall be carried out, and to that end the instrument shall be construed as a covenant not to sue. Parsons, in his work on contracts, volume 1, page 24, uses the following language: ‘But though the word “release” be used, even under seal, yet if the parties (the instrument being considered as a whole, and in connection with all the circumstances of the case and the relations of the parties) cannot reasonably be supposed to have intended a release, it will be construed as only an agreement not to charge the person or party to whom the release is given, and will not be permitted to have the effect of a technical release; for a general covenant not to sue is not of itself a release of the covenantee, but is so construed by the law to avoid circuity of action; and a covenant not to sue one of many who are jointly indebted does not discharge one who is a joint debtor to the covenantor, nor in any way affect Ms obligation.’ ”

The decedent, Walker, received $5,000 from the claimant, Forster, in his lifetime, acknowledged that he had the money and promised to return it or deliver to the claimant evidence of an interest in the proposed syndicate. The syndicate was never formed and the money was not returned. We perceive no justifiable reason why, under the facts and circumstances, the claimant should be mulcted of $5,000 and Walker or his estate unjustly enriched to that extent.

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

Judgment affirmed.

Wilsoh, P. J., concurs.

Holdom, J., not participating.