author: Mr. Presiding Justice John J. Sullivan

text:
    Sarah J. Kingsley, Appellee, v. Montrose Cemetery Company, Appellant.
    Gen. No. 40,319.

      Heard in the second division of this court for the first district at the October term, 1938.
    Opinion filed April 2, 1940.
    Cecil C. Erickson, of Chicago, for appellant.
    Earl G. Bingham, of Chicago, for certain appellee.
    Max A. Kopstein, of Chicago, for certain other appel-lee.
   Mr. Presiding Justice John J. Sullivan

delivered, the opinion of the court.

Minnie V. Billings died February 3, 1936, leaving a will dated July 27, 1922. This will disposing of the decedent’s estate, which consists entirely of personal property, contains the following among other provisions :

“Fourth
“I give and bequeath to Montrose Cemetery Company, an Illinois corporation, the sum of Twenty-five Hundred Dollars ($2500.00) to be invested and reinvested according to the rules and regulations of said Cemetery Company for the perpetual care and maintenance of my said cemetery lot one hundred sixty in section fourteen in said Montrose Cemetery and to be held by said Montrose Cemetery Company in perpetual trust for the purpose of investing the same and devoting’ the net income thereof to the care, repair and beautifying and maintaining the monument thereon in good and sightly condition as well as the care and maintenance of my said cemetery lot including any additional lot or parcel of ground in said cemetery and adjoining said lot acquired by me or by my trustee under this my will. This bequest is made subject to the rules and regulations of said Montrose Cemetery Company and I direct that no interments or burials shall be made in my said cemetery lot or in any additional ground in said cemetery acquired by or for me or for my estate except only my own body and the body of my husband, Emmet E. Billings and that the care and maintenance of my cemetery lot shall be solely in charge of said Montrose Cemetery Company, without suggestion or interference by any person whomsoever.
“Fifth
“I nominate and appoint the Continental and Commercial Trust and Savings Bank, an Illinois corporation, trustee under this my Will and I give, devise and bequeath to said Continental and Commercial Trust and Savings Bank, all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate and of whatsoever name or nature that I now have, may have at my decease or be or become entitled to, but in trust, nevertheless, for the execution of this my Will concerning the same, that is to say:
“1 — To take and receive the estate hereby granted and to sell and dispose of all my property, real, personal and mixed, wheresoever situate, and to make, execute and deliver all such conveyances, assignments and assurances as may be necessary or convenient in the disposition thereof and I expressly direct that the purchaser at any sale, transfer or disposition of any part thereof shall not be required to see to or held responsible for the application of the proceeds arising from any such sale or transfer, and reduce the same to cash as my trustee shall see fit and from the proceeds thereof to erect a monument on my cemetery lot known as lot one hundred sixty in section fourteen of Mont-rose Cemetery in the City of Chicago, County of Cook and State of Illinois and upon such additional ground as may be acquired in compliance herewith, over the graves of my husband, myself and my father and mother. I direct that such monument shall be erected by my trustee as speedily as may be after the settlement of my estate and that, if expedient, it shall be what is known as a canopied stone monument and as nearly as may be of the style and design of the monument in Eose Hill Cemetery in Chicago, Cook" County, Illinois, heretofore erected and now standing over the graves of .John Mason Loomis, late Colonel of the Twenty-sixth Eegiment, Illinois Infantry Volunteers, and his wife and daughter and that the base and foundation thereof shall be, as nearly as may be, fifteen (15) feet by twenty (20) feet and that the material and workmanship used in the construction of said monument shall be as good as can be conveniently secured and that there shall be conspicuously inscribed on said monument in large raised letters on both ends and both sides thereof and near the top thereof the name ‘Myers’ and there shall also be inscribed on said monument the names, dates of birth and death of my father, DeWitt C. Myers, my mother, Triss H. Myers, my husband, Emmet E. Billings and myself, Minnie V. Billings, preferably in deep cut letters on the top of the base of said monument.
“In the event that my said cemetery lot shall not be large enough to accommodate the interments of myself and my husband, Emmet E. Billings, or not large enough to adequately accommodate the monument herein provided for then and in either such event I direct that my trustee shall acquire such additional adjoining ground in said Montrose Cemetery as may in its judgment be sufficient and proper therefor and in the event that there shall not be sufficient funds in the trust estate hereby provided for to carry out my wish as above expressed in regard to such monument, then and in that event it is my will and I direct that my trustee shall use its discretion and'carry out my wish in regard thereto as nearly as may be.
“2 — I give and grant to my trustee, said the Continental and Commercial Trust & Savings Bank full power and authority to use the entire amount of the trust fund hereby created, or such part thereof as it may deem necessary or convenient in carrying out my purpose to erect the monument referred to in paragraph one hereof, since I have conserved and saved my estate during the greater part of my lifetime for the express purpose of erecting and providing for such monument to my father and mother, my husband and myself and have been prevented from carrying this my fixed purpose into effect only by reason of my inability to erect such a monument and have sufficient property left to assure me of proper care during the remainder of my life.
‘ ‘ 3 — If any residue remains in said trust fund after my trustee shall have fully carried out my wishes in regard to said monument as herein expressed, and after the payment of the reasonable charges of said trustee, its agents and attorneys in that behalf, then and in that event I direct said The Continental and Commercial Trust and Savings Bank to pay and distribute such residue of said trust estate to my aunt, Mrs. Sarah Kingsley, of number 1134 Lincoln Street, Denver, Colorado, if she shall survive me and in the event that Mrs. Sarah Kingsley shall not be living at the time of my death, then and in that event I direct that my said trustee shall pay and distribute such residue of said trust estate to Improvement Association for Blind People, an Illinois corporation. ’ ’

The executor named in the will predeceased the testatrix and the public administrator was appointed administrator with the will annexed. A perpetual care agreement, entered into May 21, 1924, between the testatrix and Montrose Cemetery Company, which related to the cemetery lot described in the will and under which $204 had been paid by her to said cemetery company, was found among the effects of the decedent.

On February 4,1937, Sarah Jane Kingsley, residuary legatee under the will, filed a complaint, in which she alleged inter alia 1 ‘ that the question has arisen whether by means of said Perpetual Care Agreement entered into as aforesaid, the testatrix during her lifetime after the execution of her said will accomplished the purpose of the legacy given the Montrose Cemetery Company in trust by provision ‘Fourth’ of her said will and thereby rendered ineffectual the said provision of said will,” and prayed that the court “may construe the effect of the said Perpetual Care Agreement, by and between the testatrix, Minnie Y. Billings, and the defendant, Montrose Cemetery Company, upon said provision ‘Fourth’ of the Will and testament of said testatrix and that the Court may find and decree that said provision ‘Fourth’ was satisfied and its purpose accomplished by said Minnie V. Billings during- her lifetime after the execution by her of her will; that as to the property purported to have been bequeathed by said provision ‘ Fourth, ’ the Court may decree that the defendant, Montrose Cemetery Company, has no right, title or interest therein or thereto, and that said provision ‘Fourth’ is wholly ineffective with respect to the bequest therein mentioned; that the Court may find and decree that the said property is part of the residuary estate of said Minnie Y. Billings, Deceased, or that as to said property said Minnie Y. Billings died intestate. ’ ’

The complaint made the public administrator a party defendant and in his answer he assumed a neutral position in respect to the issue involved, merely requesting instructions from the court concerning the construction of the will.

Defendant Montrose Cemetery Company (hereafter for convenience sometimes referred to as defendant) filed an answer, in which it challenged the propriety of the construction of the fourth paragraph of the will sought by plaintiff. It also filed an amended counterclaim, which, after setting forth the fifth paragraph of the will, alleged that it is a beneficiary under the trust established by the testatrix in said paragraph of her will in that, .

“a. • The building of such a monument as described in said Will, will augment and increase the sale of burial lots in said cemetery.

“b. The building of such a monument will require additional ground, from the sale of which the Montrose Cemetery will receive material benefits.

“c. The building of such a monument will require a foundation to support same which will be layed by the Montrose Cemetery Company for which said Montrose Cemetery Company will receive material benefits.

‘ ‘ d. The building of such a monument will increase the value of unsold burial lots in said cemetery.

“e. Said Montrose Cemetery Company has other beneficial interests in the said trust estate and proceeds thereof. ’ ’

It further alleged that “the Continental & Commercial Trust & Savings Bank, one of the Defendants, named as Trustee in said Will, has refused and still refuses to accept its appointment as Trustee, and to act in that capacity; that said Will . . . makes no provision for the appointment of a successor Trustee thereunder; that by virtue of the foregoing, Martin J. O’Brien, as Administrator with Will annexed of the Estate of Minnie V. Billings, deceased, . . . cannot properly administer said Estate, nor execute the wishes of the Testatrix as expressed in and under said Will”; and prayed “that a successor trustee under the last will and testament of Minnie V. Billings, deceased, be appointed.”

The cause was referred to a master in chancery whose commission expired while the case was still pending before him and who concluded his hearings and made his report under an appointment as special commissioner. Defendant presented evidence before the special commissioner in support of the allegations of its amended counterclaim as to the benefits that would accrue to it if the trust sought to be created under the fifth paragraph of the will were carried into effect.

The decree ordered “that Martin J. O’Brien, as Administrator with the will annexed of the Estate of Minnie V. Billings, Deceased, treat the Fourth clause of said decedent’s will as authorizing payment to the Montrose Cemetery Company, in trust, a principal sum not exceeding $2,296, the income whereof calculated at 4 per cent annually, to produce annually such amount up to and including $91.84 as may be found necessary in payment for a contract with said Montrose Cemetery Company to provide perpetual and permanent care and repair of the monument on Lot No. 160 in Section 14 of said Montrose Cemetery Company, and for special work to be done to the graves in said lot. ’ ’ No appeal has been taken from the foregoing portion of the decree construing the fourth paragraph of the will.

As to the fifth paragraph of the will, the decree found “that the Continental Illinois National Bank and Trust Company of Chicago, successor by consolidation of the Continental and Commercial Trust and Savings Bank, has disclaimed all interest under said will and has refused to act under said will, that the Montrose Cemetery Company, a defendant, filed its counterclaim as amended, herein, asking the Court to appoint a successor trustee to said Continental Illinois National Bank and Trust Company of Chicago; and that the will itself shows no intent on the part of the testatrix to make the Montrose Cemetery Company a beneficiary, and that said Montrose Cemetery Company has not any interest in the subject matter of this litigation sufficient to entitle it to the relief prayed for in its counterclaim.” It then ordered “that the counterclaim, as amended, of the defendant, Montrose Cemetery Company, be and it is hereby dismissed. ’ ’ Defendant Mont-rose Cemetery Company appeals from this portion of the decree.

Defendant contends that the court erred in finding “that the trust contained in paragraph ‘Fifth’ of the will of Minnie V. Billings, deceased, is void”; in finding “that said Montrose Cemetery Company, defendant, was not a beneficiary under said trust”; in finding “that said Montrose Cemetery Company, defendant, had not any interest in the subject matter of the litigation sufficient to entitle it to the relief prayed for in its counterclaim for the appointment of a successor trustee”; and in finding “that the ‘Fifth’ paragraph of said will does not create a valid trust in that it fails to designate a beneficiary capable of demanding the enforcement of the terms thereof. ’ ’

Plaintiff’s theory as stated in her brief is as follows :

“Regarding provision ‘Fifth’ of the will, wherein it relates to the erection of a monument on the cemetery lot óf the testatrix, plaintiff’s theory is that under said provision the Montrose Cemetery Company is not given any direct, actual, present interest therein, nor is it designated as a beneficiary thereunder; that the subject matter of said provision pertains to an expenditure for funeral expenses and ordinarily the duties of an executor or administrator and as such a provision, it is valid, but, although it names a trustee, said provision ‘Fifth’ fails to establish a valid trust. That therefore said defendant’s counterclaim asking for the appointment of a successor trustee to administer said provision ‘Fifth’ must fail either for lack of showing sufficient interest in its subject matter on counterclaim-ant’s part, or because no trust requiring the appointment exists, or for both said reasons.”

The relief sought by defendant in its counterclaim— the appointment of a successor trustee — necessarily involved the construction of the fifth paragraph of the will. Two questions are raised by plaintiff’s reply to defendant’s counterclaim. Has counterclaimant such an interest in the subject matter of the fifth paragraph of the will as to give it the right to ask for the appointment of a successor trustee ? Since the fifth paragraph of the will failed to designate a certain beneficiary, did that paragraph, which provided for the erection of a new monument on decedent’s lot in Montrose Cemetery, create a valid trust 1 It is readily apparent that the alleged interest of counterclaimant in the subject matter of the fifth paragraph is based on future benefits that would or might accrue to it from the erection of the monument. Such future benefits are in their very nature conjectural, contingent and incidental and are insufficient to entitle defendant Montrose Cemetery Company to the relief sought in its counterclaim. The claimant in a proceeding in equity to enforce a trust must show an actual existing interest in the subject matter of the trust. (McGovern v. McGovern, 268 Ill. 135.) “If we keep in mind the distinction between a mere conditional future interest in a trust estate generally and a present title or interest in the estate, the case is free from difficulty.” (Green v. Grant, 143 Ill. 61.)

We are in accord with the following findings of the special commissioner:

“That the will shows a clear intent on the part of the testatrix to have a monument erected on her lot in the Montrose Cemetery as described in the fifth paragraph of said will; that the evidence introduced indicates that the Montrose Cemetery would receive certain benefits in the event that the monument described in the fifth paragraph of said will should be erected; that the will itself shows no intent on the part of the testatrix to make the Montrose Cemetery Company a beneficiary. That your Special Commissioner is unable to find from all the evidence that the Montrose Cemetery Company has any interest in the subject matter of this litigation sufficient to entitle it to the relief prayed for in its counterclaim.
“Your Special Commissioner finds that the testatrix has failed in the fifth paragraph of her will to establish a valid trust in that she has failed to create a beneficiary capable of enforcing the terms of the trust which she sought to create by said fifth paragraph of her will. ’ ’

We are also in accord with the finding of the decree “that said Fifth paragraph of said will does not create a valid trust in that it fails to designate a beneficiary capable of demanding the enforcement of the terms thereof. ’ ’

It is urged that, notwithstanding the fact that the Montrose Cemetery Company was not specifically named as a beneficiary under the provisions of the fifth paragraph of the will, a valid trust may be created even though no certain beneficiary is named and that parol evidence may be introduced to determine who is the, or a, beneficiary. The evidence upon which defendant relies in this regard is the evidence heretofore referred to that it would reap certain incidental benefits if the monument were erected. In determining whether a valid trust was created under said paragraph it is of no importance as to who would or might benefit incidentally if the provisions of such paragraphs were carried into effect. The fatal defect in the attempt of the testatrix to establish a trust for the erection of the monument was her failure to name a beneficiary capable of enforcing the provisions of the fifth paragraph of the will. As was said in In re Johnson’s Will, 5 N. Y. S. 922, “there is no beneficiary in existence who is interested in or can demand the execution of the trust.” While it was clearly the intention of the decedent that the assets composing the residue of her estate of the approximate value of between $8,000 and $10,000 should be used to erect a monument on her cemetery lot, it certainly does not appear that it was her intention to make defendant Montrose Cemetery Company the beneficiary in any legal or equitable sense of the trust she sought to create for the erection of the monument. The discussion of the effect on a trust of the failure to name a certain beneficiary who can compel its enforcement in Levy v. Levy, 33 N. Y. 97, is particularly applicable. In that case the court said at pp. 101, 107, 121:

“The residue of the testator’s estate is donated, in trust, to establish and maintain perpetually in a foreign State, a school for agricultural instruction, of half-orphan children of warrant officers of the United States navy. This disposition, it must be conceded, according to the ordinary rules of law, and the general rule in chancery as to trusts, is void. It cannot be claimed that, at common law there can be a valid devise or bequest to an indefinite object, or a valid use without an ascertained cestui que trust or beneficiary. In legal limitations, there must be a definite grantee, devisee, or donee; and in'the limitation of equitable estates the rule is the same. There must be a beneficiary or certain equitable donee, grantee, or devisee. If a trust be well declared, and there be a certain beneficiary capable of coming into court and claiming the benefit of the bequest, it is good. On the contrary, if there be no ascertained beneficiary, no definiteness of purpose will raise a trust. As was said by Tucker, J., in the case of Galigo Ex’rs v. Attorney-General, 3 Leigh, 457: ‘In the eye of the law, the intervention of a trustee does not remove a single difficulty. There is no more necessity for a properly defined grantee in a deed, than for a cestui que trust capable of taking, and so defined and pointed out, that the trust will not be void for uncertainty. In short there cannot be a trustee, without a cestui que trust; and if it cannot be ascertained, who the cestui que trust is, it is the same thing as if there was none. ’ There being a sufficient declaration of the use, and a certain beneficiary ascertained, the presence or absence of a trustee in the limitation will make no difference, for equity will not allow a gift to fail, for want of a trustee.
“. . .If there is a single postulate of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise or unwise.
“. . . A trustee is not necessary to the validity of a trust, for a use being well declared, the law will find a trustee wherever it finds the legal estate; and the definiteness of the purpose of the trust does not make a good use, if there is no definite object or beneficiary.” (This decision was rendered prior to the enactment in New York State of the statute excepting trusts for charitable purposes or uses from the general rule applicable to trusts.)

The rule that a trust without a certain beneficiary who can claim its enforcement, is void, has been uniformly followed in this State. In Randolph v. Wilkinson, 294 Ill. 508, the court said at pp. 515, 516:

“It is essential in the provision and constitution of testamentary trusts that the testator adequately indicate by the terms of his will his intention to create such a trust by using language sufficient to-sever the legal from the equitable estate, and he must with certainty identify the beneficiaries and the property out of which the trust is to take effect. . . . The use of the word ‘trust’ in a will is not conclusive on the question whether or not a trust is created. ’ ’

In Marble v. Estate of Marble, 304 Ill. 229, it was said at pp. 239, 240: “Even though the intention to create a trust in a party clearly appear, if the terms by which it is created are so vague and indefinite that the court cannot ascertain clearly either its object or the persons who are to take, then the trust will be held entirely to fail. (2 Story’s Eq. Jur. sec. 979a.) . . . It is always necessary to a trust that there should be a particular piece of property or a certain fund to be held or dealt with in a particular manner for the benefit of another.”

In Illinois State Trust Co. v. Jones, 351 Ill. 498, the court said at p. 506: “It is essential to the creation of a trust that the declaration must make reasonably certain its terms. These terms include the subject matter, the beneficiaries, the nature and quantity of the interests which they are to have and the manner in which the trust is to be performed. If any of these elements are not described with certainty no trust is created. (Marble v. Marble, 304 Ill. 229; Snyder v. Snyder, 280 id. 467.)”

We have carefully examined the authorities cited by defendant and with one exception find that they have no application to the situation here presented. Defendant cites and particularly relies upon Detwiller v. Hartman, 37 N. J. Eq. 347. There the testator by his will “devised and bequeathed all his property, real and personal, to his executor, John J. Detwiller, the complainant, on the following trusts: To pay certain relatives named in the will certain specified sums of money . . . to purchase a burial plot of ground one hundred feet square in the Easton cemetery, and cause to be erected thereon a granite monument, the cost not to exceed $50,000, nor less than $40,000; the plan and style of the monument to be in accordance with directions which he intended to leave or deposit with his executor if his life and health should permit; but if he should leave none, he directed the executor to call to his aid some competent architect to act in connection with the executor, and a friend of the testator’s whom he names, and who is still living, and to whom he says he has made known his wishes and plans; the monument to be built according to the plan and in the style they three may adopt. And he orders the executor to cause to be erected a substantial iron fence around the plot — sufficient to protect it and the monument. . . . He further orders that, in case his estate at his death shall not be sufficient to pay in full the legatees and the money for the cemetery plot and monument, . . . the legacies and the monument and cemetery fund shall abate proportionately.” In that case the court said at pp. 351, 352, 353:

‘ ‘ The executor asks for a construction of the will on various points: whether the trusts for the purchase of the burial plot, the erection of a monument and the erection of the fence . . . are valid. . . . He also asks that he be directed as to what sum he shall expend upon the monument and fence. . . .
“The estate of the testator, it is said, falls very short of being sufficient for the purposes which he contemplated. . . . According to the bill, the estate will not exceed $35,000. The legacies and trust funds, all together, amount to $73,100, reckoning the cost of the burial plot, monument and fence at the minimum sum fixed therefor in the will, $40,000. At the maximum sum $50,000, the legacies and trust funds amount to $83,100.
The trust to buy a burial plot and erect a monument thereon to the memory óf the testator, and to provide a fence for the plot to protect it and the monument, is valid. To hold otherwise would be to deny the right of the testator to dispose of his estate. It is conceded that a testator may make provision by his will for the erection of a memorial to himself at his grave, but his right to provide for one so expensive as that which this testator contemplated, and for which he has provided in the will under consideration, is denied. It is obvious that if the right to dispose of any part of his estate for the purpose exists, as it undoubtedly does, this court cannot limit its exercise except as the necessities of the administration may require.
“The suggestion that a much less expensive and ostentatious memorial would be more appropriate than that for which the testator has seen fit to provide, cannot enter into the consideration of the matter. The testator was the sole judge on that subject, and his judgment is not liable to be reviewed in any court. As this court manifestly cannot deal with the provision as a violation of good taste, neither can it deal with it on the ground that it is a wasteful expenditure. As to that, too, the testator was the sole judge. In Mellick v: President and Guardians of the Asylum, 1 Jac. 180, where the testator (the will was made in 1784), after giving various minute directions as to his funeral, and bequeathing several pecuniary legacies, devised his freehold estates to trustees, upon trust, to sell and apply to produce as follows: £2,000 in erecting a monument to perpetuate his memory in the parish church of St. John, Southwark; £100 to Dr. Samuel Johnson on condition of his writing an epitaph for it, and twenty guineas to the rector of the parish on his consenting to the placing up of the monument, the master of the rolls, Sir Thomas Plumer said: ‘Now, what are charitable uses have been numerated in the statute of Elizabeth and in Duke. They are when the donor appropriates a gift, either to charity or to some public purpose, such as the repair of bridges, ports and havens etc., not operating in any manner to the benefit of himself. But the statute of mortmain does not bear resemblance to anything like a sumptuary law, and does not apply to property expended like this — by the party oh himself, for the gratification of his own vanity, or an object which, instead of having any similitude to charity, is the very reverse of it. The builder of the monument is to be paid for his labor only. It stands on the same footing as an expensive funeral, and it has never been argued that the expenses of a funeral cannot be defrayed out of real estate. There is nothing to control the general right, incident to property, of disposing of it, either in the party’s lifetime or after his death, as he may think proper; and though the sum which this testator has devoted to the erection of his monument may be disproportioned to his station in life, the court cannot on any such grounds extend the construction of the statute.’ Masters v. Masters, 1 P. Wms. 421; Adnam v. Cole, 6 Beav. 353; Mitford v. Reynolds, 16 Sim. 105 and Bainbridge’s Appeal, 97 Pa. St. 482, are also cases in which such bequests have been held valid. The testator in this case has fixed (by limitation), as he had a right to do, the amount to be expended on the burial plot, monument and fence, and his will is law on the subject. He also has provided that in case his estate should not prove sufficient to pay the legacies and raise the trust funds in full, they shall abate proportionately. The amount to be expended on the plot, monument and fence will, in the existing situation of the estate, be fixed by a very simple calculation in proportion.”

We have quoted from this case at length because it is the only case cited and the only case which, after diligent search, we have been able to find in any report of any jurisdiction in this country which deals with a similar factual situation. While in the Detwiller case the court did hold that.“the trust to buy a burial plot and erect a monument thereon to the memory of the testator, and to provide a fence for the plot to protect it and the monument, is valid” and while at first blush that case might appear to sustain defendant cemetery company’s position in the case at bar, it may be readily distinguished from the situation presented here. There the executor asked for a construction of the will to aid him in the administration of the estate. The question was not presented to or considered by the court in that case as to the essential elements necessary to constitute a valid trust and it is apparent from a careful examination of that decision that the question of the validity of the so-called “trusts” was never even considered. In reciting the purpose or object of the so-called trusts in that case, the court uses the language, “he orders the executor” and he “further orders him” to “purchase a burial plot,” and “to cause to be erected thereon a granite monument,” and “to cause to be erected a suitable iron fence.” It is clear from this and other language contained in the opinion in that case that the court treated the provisions of the will as to the “trusts” merely, as directions from the testator to the executor. In the Detwiller case the court quoted from Mellick v. President and Guardians of the Asylum, 1 Jac. 180. In the Mellick case the testator’s freehold estates were devised “to trustees, upon trust, to sell and apply the produce” in erecting a monument to his memory and for the other purposes enumerated. There the court, after holding that there was no merit in the contention that a trust was established for a charitable use, stated that “the builder of the monument is to be paid for his labor only ... it stands on the same footing as an expensive funeral.” It is also clear from this language that the provision of the will there involved, purporting to create a trust, was treated as a direction to the executor to be carried out in his administration of that estate.

It is not contended by plaintiff that the provisions of the fifth paragraph of the will of the testatrix directing the erection of a monument on her cemetery lot, are invalid if the cost of such monument is considered as part of her funeral expenses. In Bogert on Trusts, it is said at p. 482 of vol. 81: “It has been rather easy to hold that a trust to provide for the construction of a monument for the settlor or for his family is a provision for the payment of the funeral expenses of the settlor and is thus valid.”

Plaintiff insists that, inasmuch as the fifth paragraph of the will failed to create a valid trust, the direction of the testatrix therein contained for the erection of the monument is a matter for administration by the administrator with the will annexed under the guidance of the probate court. Expressive of her attitude in this regard the following statements appear in plaintiff’s brief: “All agree that the testatrix by said provision of her will provided for the erection of a private monument on her cemetery lot, and all further agree that she had the right to make such provision.

“Clearly, the dismissal of the Cemetery Company’s counterclaim has not deprived it of any of the benefits it claims will accrue to it. The effect of the decree in that respect is merely to leave administration of the decedent’s estate in the Probate Court, where the plaintiff contends it properly belongs. In no sense whatever, does the decree permit an unlawful distribution of the assets of the estate. . . .
“A provision in a will, directing the erection of a monument on the testator’s cemetery lot, is valid as a provision for part of the decedent’s funeral expenses, and the duties are those of an ordinary executor. . . .
“There is not one thing in the record, or anywhere else, to show that the ‘plaintiff insists that the wishes of the testatrix be not carried out, that the monument be not built and that plaintiff get all,’ but she does maintain that the appointment of a successor trustee is unnecessary in this case, either- as a matter of law or of fact.”

We are impelled to hold that since defendant had no direct, actual or present interest in the subject matter of the fifth paragraph of the will and was not designated a beneficiary of the trust sought to be created thereunder, it was precluded from demanding the appointment of a successor trustee, and that the trial court properly dismissed the counterclaim. Inasmuch as the testatrix failed to establish a valid trust by the fifth paragraph of her will, the directions contained therein are properly cognizable by the probate court in its administration of her estate.

As heretofore stated, the original complaint in this cause was filed by Sarah J. Kingsley, the residuary legatee under the will of the testatrix. After said original complaint and the original answer and counterclaim had been filed, Sarah J. Kingsley died April 8, 1937. The following order was entered April 12, 1937, without any objection from defendant, Montrose Cemetery Company:

“On motion of solicitor for Maude McCahan, suggesting upon the record the death of Sarah J. Kings-ley, plaintiff herein, intestate and leaving her surviving, her daughter, Maude McCahan, her only heir and next of kin; counsel for the defendant, Montrose Cemetery Company being present in open court,
“It is ordered that cause herein proceed in the name of said Maude McCahan as plaintiff.”

After participating in various proceedings before the court and hearings before the master, some of which were initiated by it, defendant on October 1, 1937, in its answer to plaintiff’s amended complaint, questioned for the first time the right and capacity of Maude McCahan, the substituted plaintiff, to maintain this action by alleging that “it admits that Maude Mc-Cahan has been substituted as Plaintiff by order of court and states the facts to be that said substitution was made upon verbal information furnished by attorney for original Plaintiff, Sarah Kingsley, that it has no knowledge that Maude McCahan is the daughter of Sarah Kingsley or that she is the only heir of Sarah Kingsley and asks for strict proof as to the right of the said Maude McCahan to prosecute this suit.”

As to the question of the right of Maude McCahan, the substituted plaintiff, to carry on this proceeding, the special commissioner in his report found,

“That subsequent to the filing óf said cause Sarah J. Kingsley died; that thereafter on motion made by counsel for plaintiff, Maude McCahan was substituted as plaintiff; that it is alleged in all subsequent pleadings that said Maude McCahan is the daughter and only legal heir of Sarah J. Kingsley, deceased; that no evidence was introduced with reference to the heirship of said Sarah J. Kingsley and your special commissioner therefore does not find that Maude McCahan is or is not the only heir-at-law of Sarah J. Kingsley, deceased.” Except for the finding therein that the court had jurisdiction of all the parties, the decree is silent on the question of the right of the substituted plaintiff to proceed with this suit.

Inasmuch as the only relief sought by plaintiff was the proper construction of the will for the guidance of the administrator with the will annexed in his administration and distribution of the assets of the estate of Minnie V. Billings, deceased, and, inasmuch as the said administrator is a party to this cause, we deem it unnecessary to determine the question of the right and capacity of Maude McCahan to proceed with this action. The substituted plaintiff neither asked for nor received any direct relief by the decree of the trial court and it is safe to assume that in his administration and distribution of the assets of the Billings estate the public administrator under the direction of the probate court will recognize no one who is not legally entitled to share in said distribution.

The decree allowed as attorney fees, $650 to defendant and counterclaimant Montrose Cemetery Company, $100 to defendant Martin J. O ’Brien, as administrator with the will annexed of the estate of Minnie V. Billings, deceased, and $500 to Maude McCahan, the substituted plaintiff, and ordered “that Martin J. O ’Brien as Administrator with the will annexed of the estate of Minnie V. Billings, deceased, be and he is hereby authorized to pay such sums to the said parties, respectively, out of the residuary assets of said estate and to take credit therefor in his account as suck administrator.” Plaintiff filed a cross appeal from that portion of the decree which allowed attorney fees to the parties and which authorized the payment thereof out of the residuary assets of the estate.

Plaintiff contends that the court erred in allowing “attorneys’ fees to defendant, Montrose Cemetery Company for service in connection with any matter other than construing the effect of the perpetual care agreement on provision ‘Fourth’ of the will”; in allowing “any attorneys’ fees in connection with that part of the case relating to the counterclaim for the appointment of a successor trustee”; in ordering “allowance for attorneys’ fees paid out of the residuary assets of the estate ’ ’; and in not ordering ‘ ‘ allowance for attorneys ’ fees paid out of the fund provided for in provision ‘Fourth’ of the will.”

When the matter of the allowance of attorney fees to defendant Montrose Cemetery Company was before the chancellor and he allowed $650 as such, payable out of the residuary assets of the estate, plaintiffs attorney did interpose the objection “that the counterclaim is filed by the defendant solely for its own purpose . . . and was not in any way for the benefit of the administrator of the estate or for the administration of the estate.” However, immediately thereafter plaintiff’s attorney stated that he had no objection to the allowance of attorney fees to the administrator payable out of the residuary assets, and he also stated, “I would like to ask, if we are allowing fees, that the attorney for the plaintiff be allowed a fee under the decree on that basis.” Inasmuch as plaintiff’s attorney specifically requested an allowance of $500 attorney fees for himself out of the residuary assets and stated that he had no objection to the allowance of attorney fees to the administrator out of the same fund, in our opinion plaintiff must be held to have waived her objection to the payment of the attorneys ’ fees out of the residuary assets. No question is raised as to the reasonableness of the fees allowed. There can be no question that the attorney for the Montrose Cemetery Company devoted a great amount of time and effort in resisting plaintiff’s claim that the trust provided for in the fourth paragraph of the will was “wholly ineffective” and in attempting to show under its amended counterclaim that a valid trust was created by the fifth paragraph of the will. It is idle for plaintiff to argue that the cemetery company was not entitled to the allowance of any attorney’s fee under its counterclaim because it did not specifically ask for a construction of the fifth paragraph of the will but merely for the appointment of a successor trustee. The construction of the fifth paragraph of the will was directly involved inasmuch as the court could not appoint a successor trustee unless a valid trust was established by the provisions of said paragraph. Not only did the provisions of the fifth paragraph of the will create a difficulty that necessitated a construction of that paragraph, but the precise question of construction under a similar set of facts has not previously, in so far as we have been able to ascertain, been presented for determination to any court of review in this State. “Asa general rule, if a testator has expressed his intention so ambiguously as to create a difficulty, which makes it necessary to come into the court of chancery to give a construction of the will or to remove the difficulty, the cost of the litigation must be borne by the estate. ’ ’ Woman’s Union Missionary Soc. of America v. Mead, 131 Ill. 338. In Ingraham v. Ingraham, 169 Ill. 432, the court said at pp. 471, 472:

“The court below in its decree allowed one of the counsel of the appellant a fee of $1000 and the other counsel a fee of $500.. Counsel for the appellees objects to the allowance of those fees. In view of the ruling of this court in Woman’s Union Missionary Society v. Mead, 131 Ill. 338, we do not regard the allowance of the fee as erroneous. The will as amended asked for a construction of the fourteenth clause. There is sufficient ambiguity about the language of the testator to justify an application to a court of equity for a construction of the clause in question. It is a general rule that, when the testator has expressed his intention so ambiguously as to create a difficulty, which makes it necessary to go into a court of.chancery to get a construction of the will, and to remove the difficulty, the costs of litigation must be borne by the estate; and the general residue is the primary fund for the payment of such costs. The amount to be allowed is so far in the discretion of the chancellor, that, in the absence of proof of the abuse of that discretion, we cannot interfere.”

We think the attorneys’ fees allowed were reasonable and that the court properly ordered them paid out of the residuary assets of the estate.

For the reasons stated herein that portion of the decree of the superior court from which the appeal was taken is affirmed arid that portion of the decree from which the cross appeal was taken is also affirmed.

Those portions of decree from which appeal and cross-appeal were taken affirmed.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Berea College, Appellee, v. Victor J. Killian et al., Appellants.
    Gen. No. 40,487.
    Heard in the second division of this court for the first district at the December term, 1938.
    Opinion filed April 2, 1940.

      William N. Brady and J. V. Schaffenegger, both of Chicago, for appellants.
    Packard, Barnes, McCaughey & Schumacher, of Chicago, for appellee; George Packard, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal by defendants, Victor J. Killian, William L. Wente, Walter S. Murray and Roger Sinclair, seeks to reverse a summary judgment entered against them in an action at law brought by plaintiff to recover the balance due on certain notes, the payment of which they guarantied. This balance was shown by the amount of a deficiency judgment rendered in favor of the plaintiff in a prior foreclosure proceeding.

The facts briefly stated are that on March 20, 1932, the Chicago Title & Trust Company, as trustee, executed certain promissory notes payable only out of the funds of its trust No. 20444 and secured the payment of same by its trust deed conveying the real estate in said trust. The defendants here were the equitable owners of the property and as such the beneficiaries of trust No. 20444. By their indorsement in writing* on the reverse side thereof, the defendants guarantied the payment of the notes. Default having been made in the payment of the two notes, one for $3,000 and the other for $41,000, a foreclosure proceeding was instituted in the superior court by Oliver A. Bestel, nominee of the planitiff herein, Berea College. Among the defendants named in the foreclosure action were two of the guarantors, William L. Wente and Walter S. Murray, who were served with summons, appeared and answered and remained parties defendant throughout that proceeding* until the final decree was entered therein. The other- two defendants in the case at bar, V. J. Killian and Roger S. Sinclair, were not named defendants in the complaint to foreclose. Kiniap, however, filed Ms appearance in that action and joined in the answer of Wente and Murray. Sinclair never appeared personally in that cause but service was had as to him by publication as an unknown owner. A decree of foreclosure and sale was entered and a sale had pursuant thereto. The master reported a deficiency and while no personal judgment as to such deficiency was asked or granted against any of the defendants in the foreclosure case, the court in confirming the sale did decree that there was $14,274.01 still due the plaintiff therein after applying the proceeds of the sale on the mortgage indebtedness. Ñet rentals from the property amounting to $4,891.90, collected by the receiver during the period of redemption, were applied to the deficiency, reducing same to $9,382.11. Bestel, plaintiff in the foreclosure case, by an appropriate instrument in writing, assigned his right and interest in the deficiency judgment rendered in his favor therein to the plaintiff here, Berea College. As heretofore stated, this action was brought by plaintiff to recover from the defendants as guarantors the balance due on the aforesaid notes as shown by the amount of said deficiency judgment. The judgment for $10,828.51 entered herein on April 22, 1938, from which defendants prosecute this appeal, represents the net deficiency of $9,382.11, with interest thereon from March 23, 1935.

Plaintiff’s motion for summary judgment was supported by an affidavit which set forth the deficiency judgment entered in the prior foreclosure suit, the assignment in writing of same by Oliver A. Bestel to the plaintiff, Berea College, the ownership by plaintiff of the notes evidencing the mortgage indebtedness, the guaranty of payment of said notes indorsed thereon by the defendants, and a statement of the balance due on the notes based on said deficiency judgment as reduced by the receipts of the receiver after the master’s sale.

Defendants’ principal contention, as stated in their brief, is “that certain of these defendants having been made parties to the foreclosure action and such defendants having been served with summons, appeared and answered and continued in the foreclosure case throughout, a deficiency judgment should have been taken against such defendants in that case and that not having been done the present action is barred and the deficiency decree is res judicata as to them.”

Plaintiff’s theory is that it is entitled to the summary judgment rendered, because it is the holder of the notes in question, the payment of which was absolutely guarantied by the four defendants, “by their separate contract of guaranty, upon which notes, as a result of a proceeding in rem to foreclose the land securing the payment of the notes, a certain amount represented by the judgment appealed from, was due”; and that “there was no deficiency decree in personam against anyone, nor was such a step obligatory under the Statute.”

The same contention made by defendants here was urged by the defendant in Skolnik v. Petella, 304 Ill. App. 331, the opinion in which case is filed concurrently with this opinion. Notwithstanding that there was a somewhat different factual situation in the Skolnik case, many of the principles and rules of law involved and discussed in our opinion in that case are equally applicable to the question presented on this appeal.

Since it was not obligatory upon the plaintiff in the foreclosure proceeding involved in the instant case to ask for or secure a personal judgment against any defendant therein for the deficiency shown after the sale of the mortgaged premises and since plaintiff in that proceeding did not request or procure a personal judgment for the deficiency against any defendant therein, for the reasons stated in the Skolnik case the plaintiff in this case clearly had the right to bring this action at law to recover the balance due on the notes in question as shown by the amount of the said deficiency. The separate and independent liability of the defendants as guarantors remains unaffected by such action as was taken in the foreclosure suit except in so far as that action resulted in a diminution of the debt for which the guarantors are liable and of this they are of course in no position to complain.

It is also contended “that defendants are entitled to credit for a part of the value of the premises and the income from such part after the Master’s deed inasmuch as the plaintiff never acquired the equity of redemption vested in Roger Sinclair. He was not made a party to the foreclosure action by name but the plaintiff contends he was brought in, as an ‘unknown owner. ’ The position of the defense is that plaintiff’s agents knew of Sinclair’s interest and could not give the court jurisdiction over him by an affidavit and publication and that consequently the decree and sale were wholly ineffective to pass his interest.” There is no merit in this contention.

In resisting plaintiff’s motion for summary judgment defendants filed an affidavit which set forth that “the plaintiff knew and had notice by reason of such indorsement (contract of guaranty) and the signatures of the defendants thereon that said defendants were such beneficial and equitable owners” and that from the date of the execution of said contract of guaranty and “at all times since said date continuously, the said defendants, Victor J. Killian, William L. Wente, Walter S. Murray and Roger S. Sinclair, .were and have been and now are residents of the County of Cook, State of Illinois and that process could have been served upon them and each of them.” An attempt is thus made to collaterally attack the validity of the foreclosure decree in so far as it affected the rights of Sinclair in the mortgaged premises by suggesting that, since he was served only by publication in the foreclosure suit as an unknown owner or as one having some interest in the property, such notice was improper and insufficient to confer upon the court jurisdiction of .Sinclair’s person when the plaintiff in said proceeding knew his status as an equitable owner of the property and that he had continuously resided within the jurisdiction of the court and could have been personally served with process.

Sinclair was not even a necessary party to the foreclosure suit (Hirsh v. Arnold, 318 Ill. 28; Witting v. Claras, 274 Ill. App. 449) and the foregoing allegations of defendants’ affidavit are not sufficient in themselves to warrant the conclusion that he was not properly before the court in that case. In any event the defendants as guarantors are not concerned legally with the steps taken to foreclose the mortgage. Plaintiff could have sued defendants for the entire balance due on the notes before the foreclosure if it had seen fit to do so and the guarantors were liable to a judgment for the full amount due on said notes. Surely they cannot be heard to complain in this cause about the foreclosure proceeding which materially decreased the amount of the indebtedness they were liable for as guarantors. The only issue before us on this appeal is the propriety of the summary judgment rendered on the affidavits submitted. Regardless of what transpired in the foreclosure proceeding, the independent liability of Sinclair, as well as that of his codefendant guarantors, remains unaffected in so far as the proceeds of the sale of the property in the foreclosure suit failed to satisfy the mortgage indebtedness.

Since no defense was presented by defendants ’ answer to plaintiff’s claim against the defendant guarantors for the balance due on the notes in question and since the affidavits filed by them show no good reason why the summary judgment in favor of plaintiff should not have been entered, said summary judgment of the superior court should be and it is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.


text:
    Mrs. F. Y. Cooper and Florence Cooper, Appellants, v. Safeway Lines, Inc., et al., Appellees.
    Gen. No. 40,497.

      Heard in the second division of this court for the first district at the December term, 1938.
    Opinion filed April 2, 1940.
    Henry Mitgang, of Chicago, for appellants; Joseph Gr. Robinson, of Chicago, of counsel.
    Anson H. Brown, of Chicago, for certain appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

Plaintiffs, Mrs. F. Y. Cooper and her daughter, Florence Cooper, brought this action against Santa Fe Trails of Illinois, Inc., and Blue Motor Coach Lines (hereinafter for convenience referred to as defendants), and Emma Bonell (hereinafter designated as the codefendant), to recover damages for personal injuries sustained in a collision between a bus operated by defendants and an automobile operated by codefend-ant, while plaintiffs were riding as passengers in defendants’ bus. Upon the trial the jury returned a verdict finding* defendants guilty as to plaintiff Mrs. F. Y. Cooper and assessed her damages at $12,000. The jury also returned a verdict finding defendants guilty as to plaintiff Florence Cooper and assessed her damages at $1,000. The jury returned a verdict finding codefendant Emma Bonell not guilty. The trial court denied defendants ’ motions for a directed verdict, both at the close of plaintiffs’ evidence and at the close of all the evidence, but after the verdicts had been returned in favor of plaintiffs and against defendants, the court entered judgment non obstante veredicto in favor of defendants and against plaintiffs. This appeal by plaintiffs followed. No question is raised- on the pleadings. The cause was dismissed as to certain other defendants.

Plaintiffs ’ contentions as stated in their brief are: 11 That on the 30th day of June, 1935, in the night time, they were riding as passengers for hire in a passenger bus, owned and operated by the defendants, Santa Fe Trails of Illinois, Inc., a corp., and Blue Motor Coach Lines, a corp., as common carriers. They were on their way from New York City to Los Angeles, California. The bus was proceeding in a southerly direction on U. S. Highway No. 66, about six miles from Dwight, Illinois, at the hour of about 11:30 P. M. when a violent collision occurred between the bus and an automobile proceeding in a northerly direction on said highway. That the impact between the two vehicles was caused through the negligence of the driver of the bus or through the negligence of the driver of the automobile, or both. That the plaintiffs were innocent victims of said negligence. That said plaintiffs were at all times in the exercise of due care and caution for their own personal safety. That said defendants, as common carriers, failed in their duty to exercise the highest degree of care and caution to avoid injuring said plaintiffs who were passengers on their bus. That as a consequence of this accident, the plaintiffs suffered serious permanent injuries.”

Defendants contend that they were not guilty of negligence at the time and place of the accident and that the collision occurred through the sole negligence of the codefendant. The codefendant contended in the trial court that she was not guilty of negligence at the time and place of the accident and that the collision occurred through the sole negligence of the driver of defendants’ bus.

For a proper understanding and consideration of the questions presented it is necessary to set forth the testimony of the witnesses somewhat fully. Plaintiff Florence Cooper testified that she and her mother were being transported as passengers for hire upon a bus operated by defendants as common carriers; that they were en route from New York city to Los Angeles, California; that the bus was being operated by a servant of defendants; that plaintiffs occupied seats in said bus provided by the defendants for passengers; that the bus was proceeding south on TI. S. Highway No. 66 at a speed of about 50 miles an hour; that it was traveling over the center line, with “most” of its body on the left side of the highway, and had been proceeding in this manner for about three-quarters of an hour before the accident; that prior to the collision an automobile traveling south on the highway had overtaken the bus and passed it on its right; that the bus continued with its left front and rear wheels over the center line, on the east side of the highway without diminishing its speed; that it collided in a violent impact with the northbound automobile of the codefend-ant ; that just before the impact the bus swerved to the left; that the north bound automobile of the codefend-ant was at all times in its proper lane of travel on the east side of the road; and that both vehicles came to rest after the collision on the east side of the highway.

Eoscoe Cable, the driver of defendants’ bus, who was called as a witness for plaintiffs, ostensibly for the purpose of making out a prima facie case of negligence against the codefendant, testified on direct examination that he was the driver of the bus involved in the accident; that he saw the northbound automobile with which he collided “about one hundred and fifty feet ahead of me” before the collision occurred; that he continued to watch that automobile; that “when I first seen the automobile coming down the road it seemed to swerve to the right side of the highway into the ditch and then back across in front of the path of the bus”; and that the automobile went “about two-thirds across” the west side of the pavement and collided with the bus on the west side of the road.

Cable testified, on cross-examination by defendants’ counsel, that he had been driving a bus for 10 years; that his run on the night in question was from Chicago to Quincy, a distance of 293 miles; that he left Chicago about 8 p. m.; that the highway at the point where the accident occurred ran north and south and was about 20 feet wide; that the collision occurred about two and a half miles south of the town of Gardner; that from the time he left said town until the accident occurred he drove along the right or west side of the highway; that after he saw the northbound automobile run into the ditch on the east side of the highway and then come up out of the ditch onto the highway and head toward him, he “threw the bus off of the highway, that is, half of it onto the shoulder . . . the right shoulder on the west side ’ ’; that at the time of the collision “the right wheels of the bus was off the pavement entirely . . . three feet”; that the automobile struck the left front fender of the bus; that just before the automobile struck the bus he imagined that it was traveling “around sixty or sixty-five miles an hour”; that at the time of the impact “I was knocked loose from the controls of the bus and the bus weaved from one side to the other for about fifty feet before I regained control of it”; that when the bus stopped “its front end . . . was about three feet off the pavement cross-ways of the highway”; and that after the collision the northbound automobile stopped in the “east ditch . . . about sixty or seventy feet behind the bus”; and that “it was pretty badly damaged . . . all of it. ’ ’

Cable testified, on cross-examination by the attorney for the codefendant, that he drove through Gardner at around 10:15 p. m. and that the accident happened about 10:20 p. m.; that Gardner was about two and a half miles from the scene of the accident and that the city of Dwight was about eight miles south of the scene of the accident; that1 ‘ 150 feet prior to the time of the accident” the bus was traveling “around forty-five or forty-six, or forty-one miles an hour”; that he imagined “the other car was going sixty or sixtv-five miles an hour . . . the way it was traveling”; that when the north bound automobile was about 100 feet to the south of the bus “it seemed to go into the ditch and take a circle and into the ditch and back on the shoulder . . . the ditch wasn’t very deep . . . very shallow ... it made a quite quick turn on the pavement when it came back on the road”; that it was then about 40 feet away from the bus; and that at that time he imagined the bus was traveling about 35 miles an hour.

On redirect examination Cable testified that the bus was equipped with air brakes, which were in good mechanical condition; that traveling at a speed of 35 miles an hour he could have stopped the bus in about 40 feet; tPat traveling at a speed of 45 miles an hour he could stop the bus in about 70 or 75 feet; that after the accident both vehicles were on the east side of the highway; that he had been “driving at different times before this accident occurred . . . around fifty or fifty-five miles an hour”; that the bus was about eight feet wide; that when he first “noticed the automobile swerve on the road ... it could possibly have been' 200 feet to the south of the bus . . . it is pretty hard to judge the distance at night that way. ’ ’

Harold Jordon testified on behalf of defendants that he was the steward on the bus involved in the accident; that he “was standing in the front of the coach by the door”; that “the first I saw of this car that was meeting us, the first I noticed it, it swerved off the road, got onto the shoulder, it was I imagine about one hundred, about around one hundred and fifty feet from us . . . that was around a hundred and fifty feet from us this car swerved out on the shoulder, I imagine . . . She cut back then onto the pavement . . . came up on the pavement about fifty feet ahead of us, and at that our driver chauffered his bus out on the shoulder, this lady came across the road and hit the coach head on”; that he was standing “in what is known as the door well” directly at the windshield; that his attention was directed to the northbound automobile when it was one hundred and fifty feet to the south because it swerved off onto the east shoulder and then swerved back onto the roadway proper; that “it came back onto the pavement . . . she crossed the pavement and hit the bus . . . the bus was or the two wheels was out on the west shoulder”; that “the car struck the bus on the left headlight which would be my left”; that immediately after the impact the bus ‘ ‘ swerved to the east”; that when it came to a stop it was “setting east and west across the road facing east. ’ ’

Jordon testified on cross-examination by the attorney for the codefendant, that when the automobile swerved back from the ditch to the right of the highway onto the pavement, it was about 50 feet away from the bus; that at that time the front wheels of the automobile were “across the center line ... to the west”; that the front left side of the automobile came in contact with the bus; that when the automobile went off the highway into the ditch to the east of said highway about 150 feet away from the bus, the latter was traveling between 45 and 50 miles an hour.

On cross-examination by counsel for plaintiffs Jor-don testified that the driver of the bus was not thrown out of his seat but that he “scooted forward in his seat ... he was scooted out in his seat forward”; that the left front bumper of the bus, which was made of very heavy iron was broken off; that ‘ ‘ a headlight was smashed up a little bit but it was still lit” and the left front fender was damaged; that the bus was equipped to carry 30 passengers and that it carried 29 that night; that from the time he first saw the northbound automobile “hit the shoulder of the road until the collision with the bus ... it apparently was going the same speed”; that “from the time the automobile started into the shoulder of the road until the time of the impact, a distance of around one hundred feet,” he thought the driver of the bus tried to “slow it down immediately as soon as the automobile turned onto the shoulder of the road” and at the time of the impact the bus was going “around thirty-five or thirty”; that “the bus was traveling on its own side of the road”; that as he looked out the windshield he saw “a black line through the center of the highway”; that he imagined the bus “was about two feet,on the west side of it”; that the bus “swerved out on the west shoulder . . . about half the coach, three wheels . . . the bus was going south ... a little southwest”; that at and immediately prior to the time of the collision he was looking straight ahead through the windshield with nothing to obstruct his vision; and that at the time of the impact the right side of the bus was “still out on the shoulder” headed “mostly south ... it may have been a little west.”

Harry J. Hathaway testified in substance that he was an investigator and adjuster for the Continental Casualty Company of Chicago; that he was “traveling north on U. S. Highway No. 66 in his automobile” at about 10:30 p. m.; that he “was traveling about between forty-five and fifty-five miles an hour . . . and an automobile passed me on the left at a much greater speed than I was traveling then ... it cut in front of me rather sharply and then it veered back to the center of the street astraddle the center line of the highway, then it veered to the right or the east side of the highway, and in coming back to the center, it made another veer . . . the right side wheels appeared to go off the east shoulder of the highway . . . that was a distance of about four hundred, possibly five hundred feet from my car, ahead of my car . . . and the automobile suddenly veered toward the left or toward the west side of the highway, the south traffic line, and the moment that the car veered from the east edge of the highway toward the west edge, at that moment the bus veered toward the west shoulder, running off on the west shoulder ... a matter of a minute or a couple of seconds, the bus swerved and came right across the highway . . . between me and the car . . . that was the last I seen of the car until I stopped”; that when he reached the scene of the accident and got out of his car codefendant’s automobile “was turned over on its right side . . . the top was toward the highway fence on the east side of the highway and the four wheels were toward the highway . . . the automobile was about forty or fifty feet north of the bus”; that he “saw a young man when he was taken out of the automobile; that he looked at the bus and saw that there was a little scuffing or denting of the left front fender right over the wheel, but very pronounced and very deep on the body of the bus ahead of the left rear wheel; that he saw a mark on the pavement made by the right wheels of the bus that had'gone off on the west shoulder, a distance of possibly three or four feet”; and that “those marks from the tires were indistinct from the shoulder, extended a distance of about forty or fifty feet north of the point where the bus made the abrupt turn directly across the highway and made a turn to the east, and were right in line with the right-hand side wheels of the bus . . . there was a considerable amount of glass strewn about the pavement, all of which was on the west side of the pavement, of the center line.”

On cross-examination, by counsel for the codefend-ant, Hathaway testified that at the time the automobile passed his car it was traveling at a speed of between 60 and 68 miles an hour; that he was 300 or 400 feet to the south of the accident when it happened; that he had noticed the bus shortly “before this automobile passed me on the left”; that “the car cut in front of me rather sharply and veered to the right of the road and then back to the center of the road and traveled some distance, approximately one-third over the center of the road, and then came back to the right side of the road, and off the edge of the shoulder or close to the edge of the shoulder . . . my right shoulder, on the right side of the road, on my right side, and just abruptly went toward the left, the south lane . . . and then the car veered in sort of a tail-spin, which was only visualized by me by the tail light, and at that moment the bus veered to his right, and the bus came directly across in front of me”; and that after the accident “the front of the bus was down over the slope of the shoulder on the right or east side of the highway . . . was extended down beyond the right side of the highway about four, five or possibly six feet, but I think it was closer to five feet.”

Alice Hathaway, the wife of Harry Hathaway, testified to substantially the same effect as her husband as to the speed of the codefendant’s automobile as it passed and cut in front of them and its course on the highway until it collided with defendants’ bus. Two other witnesses, Ruth Judge and Mrs. Edward Rue, who were passengers on the bus, gave testimony which tended to support defendants’ theory that the automobile ran into the bus while the latter was traveling south in its proper lane on the highway.

Emma Ronell, the codefendant, testified that prior to the time of the accident she was driving her car north on highway No. 66 with her son in the back seat thereof “resting and sleeping”; that she did not pass any other northbound car prior to the accident; that she was driving along at a speed of not over 45 miles an hour; that when she was 200 feet from the bus she dimmed her headlights; that when she was 100 feet south of the bus she saw that it was approaching with its left wheels two feet over to the east of the black line marking the center of the highway; that she thereupon kept as far over to the right side of the highway as possible; that at no time did she leave the highway or cross to the west of the center line thereof; that the bus did not change its position on the highway; that the left front portion of the bus struck the left front portion of her automobile with a loud and violent impact; and that she was rendered unconscious.

The first question presented is whether the trial court erred in entering judgment in favor of defendants notwithstanding the verdicts of the jury in favor of plaintiffs. Rule 22 of the Supreme Court provides: “The power of the Court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the Court to direct a verdict without submitting the case to the jury.” A motion to direct a verdict for a defendant preserves for review only the questio.n of law whether from the evidence in favor of plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, a jury might reasonably have found for plaintiff. (Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104; Brophy v. Illinois Steel Co., 242 Ill. 55; City of Chicago v. Jarvis, 226 Ill. 614.) It is only where there is no evidence to sustain a plaintiff’s claim that a judgment may be rendered notwithstanding the verdict. (McCarthy v. Rorrison, 283 Ill. App. 129.)

It is not claimed that plaintiffs or either of them were guilty of contributory negligence and the evidence shows that they were not. The error of the trial court in allowing defendants’ motion for judgment notwithstanding the verdicts and entering such a judgment becomes readily apparent when the evidence in favor of plaintiffs in this cause, together with the reasonable inferences to be drawn therefrom, is considered in the light most favorable to them. In the evidence heretofore set forth there was testimony that clearly tended to prove that defendants were negligent in the operation of their bus. In considering defendants’ motion for judgment notwithstanding the verdicts, the established rule, as already stated, is that the court was bound to take the evidence in favor of plaintiffs as true and under that rule the trial court should have accepted as true the testimony that the collision took place while the bus was traveling in the center of the highway with its left wheels and body partially blocking the right of way of the northbound automobile of the codefendant; that said codefendant was driving her car on the extreme right side of the east lane of the highway; that the left front portion of the bus struck the left front of the approaching automobile; and that the impact caused the automobile to be thrown to its right and overturned in the ditch on its right side with its wheels facing the highway and caused the bus to cut sharply across the road and come to a stop with its front wheels in the east ditch and its rear wheels on the highway. In view of this evidence as to defendants’ negligence, it is difficult to understand on what theory the trial court rendered the judgment in favor of defendants notwithstanding the verdicts of the jury, and since there was no justification for the entry of such a judgment, it will necessarily have to be reversed.

Defendants having filed a written motion for a new trial in the trial court, it now becomes necessary under section 68 (3)c of the Civil Practice Act to determine whether because of errors claimed to have occurred during the trial of this cause they are entitled to a new trial. As grounds for the allowance of a new trial, defendants contend in their brief that (1) “the verdict is against the manifest weight of the evidence”; that (2) “the motion of these defendants to withdraw a juror should have been granted because of the theatrical conduct of Mrs. F. Y. Cooper and also because of the interjection of the question of insurance into the case by counsel for the plaintiffs ’ ’; that (3) “the trial court erred in refusing to give one of the instructions tendered by these defendants”; and that (4) “the trial court erred in giving one of the instructions tendered by the defendant Emma Ronell. ’ ’ Defendants ’ third and fourth contentions may be disregarded since in their written motion for a new trial no complaint was made as to the conduct of the trial court either in giving or refusing to give any of the instructions.

Were the verdicts against the manifest weight of the evidence? There was a sharp conflict in the evidence. Two distinct and well-defined theories of fact were presented to the jury. The verdicts indicate that the jury accepted as true the theory that defendants’ southbound bus was traveling in the center of the highway at a high rate of speed, with its left wheels and part of its body extending over the center line into the east lane of such highway and partially blocking same, and that the left front portion of the bus struck the left front of the northbound automobile while the latter was being driven in its proper lane and as far over to the right side thereof as possible. The jury rejected defendants’ theory that, while their bus was being driven south on the highway entirely within the west traffic lane, the codefendant, commencing at a point 40 or 50 feet to the south of where the bus then was, drove her automobile in a northwesterly direction toward the bus and that the driver of the latter, when he saw that a collision was imminent, turned and drove the bus to the right so that its right wheels were three feet off the road onto the west shoulder thereof when i the left front of the automobile struck the left front of the bus.

By its verdicts the jury stamped the conduct of defendants’ driver in the operation of the bus as negligent and not only was there ample justification in the evidence for such finding by the jury but it was supported by the probabilities and physical facts as well. There was nothing inherently improbable in the testimony of plaintiff Florence Cooper and codefendant Emma Ronell, as to the manner in which the collision occurred. On the other hand it is highly improbable that Emma Ronell, a middle-aged married woman, with her son asleep in the back of her car, would drive her automobile on a 20-foot highway on a dark night, with a bus approaching from the opposite direction, as several of defendants’ witnesses testified she did. In so far as the record discloses, this woman was both sane and sober. Yet defendants’ witnesses would have the jury believe that she drove her car as a drunken cowboy might drive a wild bucking broncho, careening from side to side of the highway and even bucking in and out of the east ditch. They have her passing at 65 miles an hour another northbound automobile traveling at 45 or 50 miles an hour and cutting sharply across the path thereof when only from two to five feet in front of same. The witness Hathaway stated that after the automobile had cut sharply in front of him “then it veered back to the center on the street astraddle the center line of the highway.” It was apparently not until the northbound automobile had gone back to the east side of the highway after so being “astraddle the center line of the highway” that the driver of the bus first saw it when it was from 100 to 150 feet away. He said that when “it seemed to go into the ditch and take a circle and into the ditch and back on the shoulder ... it made quite a quick turn on the pavement when it came back on the road”; that at that time it was about 40 feet away from the bus; and that it headed directly toward the bus and struck same, on the west side of the road. As common carriers defendants knew that they were bound to do all that human care, vigilance and foresignt could reasonably to, consistent with the mode of conveyance they employed to protect their passengers. The driver in charge of defendants ’ bus could not negligently calculate on his ability to avoid danger to its passengers, nor so calculate and speculate as to the. safety of the passengers in any respect. (Rowan v. Bartonville Bus Line, 242 Ill. App. 451.) If, as the driver of the bus states, in effect, the northbound automobile commenced to veer from one side of the highway to the other, when it was from 100 to 150 feet south of the bus, and continued to so veer until the time of the impact, surely the bus driver, with the lives of 29 passengers in his care and charge, was confronted with a dangerous situation. He said he did nothing until the automobile was about 40 feet away and headed toward the bus. He stated that he then slowed down to 35 miles an hour and turned the bus to the west so that it was partly on the right shoulder of the road when it was struck. This is all the bus driver claims to have done to avert the collision, and assuming his testimony in this regard to be true what he did came too late. There is evidence in the record that from the time he first saw the approaching automobile commence its zigzag course across the highway and for a considerable time thereafter he could have brought the. bus to a stop, and it was his duty to do so if necessary to avert the accident. In discussing the law applicable to a somewhat similar factual situation in Hicks v. Swift & Co., 285 Ill. App. 1, the court said at pp. 4, 5:

“That defendant, at the time of and immediately before the collision, was bound to0use the care and caution to avoid collision that an ordinarily prudent person would have then and there exercised, is clear. The rule is well stated in Kessler v. Washburn, 157 Ill. App. 532, where the court, on page 537, said: ‘No owner or operator of an automobile is necessarily exempt from liability for collision in a public street by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by the law or the ordinances. On the contrary, he still remains bound to anticipate that he may meet persons at any point in the public street, and he must keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person, using proper care and caution; and if necessary he must slow up and even stop. . . . The true test is that he must use all the care and caution which an ordinarily careful and prudent driver would have exercised under the same circumstances. ’ The rule is similarly stated in 42 Corpus Juris, 928, sec. 638.
“It is obvious that as the coupe skidded across the pavement, two courses were open to the driver of the truck in order to avert a collision. One was to pursue the course which he adopted of slackening his speed and turning to the left, or to apply his brakes and bring his car to a stop, which he testified he could have done within a distance of 15 feet. . . . It is therefore manifest that if he, upon seeing the danger, had at once used the means at his command to stop his machine, which, as he stated, he could have accomplished in 15 feet or one-half of the distance he then was from the coupe, the truck, would have halted before it reached the other car and the collision would not have occurred.
“Whether in so acting he used the care and caution which an ordinarily prudent and careful person would have exercised in the, same situation or whether such a person would have stopped the car, as he said he might have done, and that the failure to do so was negligence which proximately caused the accident, were questions of fact. Petro v. Hines, 299 Ill. 236.”

It is very significant that after the collision both the automobile and the bus landed on the east side of the highway, the former overturned in the ditch east of the highway and the latter with its front wheels in said ditch and its body across the highway to the west. The jury may well have considered it improbable that the vehicles would have come to rest as they did after the accident if the collision took place on the west lane of the highway. If the automobile had struck the left front end of the heavy bus, loaded as it was with 31 persons and the baggage of the 29 passengers, when the right wheels of said bus were on the west shoulder of the road and the front wheels thereof were headed somewhat to the southwest, it is difficult to understand how the impact could have caused the bus to veer almost completely to the east and to proceed across the highway in such a manner that its front wheels were in the east ditch after it came to a stop. If the driver lost control of the bus as a result of the impact, as he says he did, when its right wheels were on the west shoulder of the road and its front wheels were facing somewhat to the southwest, it is hard to conceive why the bus traveling at a speed of at least 30 or 35 miles an hour did not continue on in the direction it was headed over said shoulder into the west ditch. It may well have appeared to the jurors as much more probable that, while the automobile was proceeding north near the extreme right side of the highway, it was struck by the bus and turned over into the east ditch and that the bus proceeded in a southeasterly direction, finally landing with its front wheels in the east ditch about 40 or 50 feet south of the automobile. The driver of the bus testified that after the impact the bus traveled about" 50 feet before he could regain control of it.

We think the reasoning in Avey v. Medaris, 272 Ill. App. 207, is particularly applicable to the situation presented here. There the court said at pp. 209, 210: “It is not possible to reconcile the testimony of the defendant with that of the plaintiff. It was the function of the jury to pass upon the facts in the case, and unless it can be said that the verdict is against the manifest weight of the evidence, the verdict should stand, providing errors of law have not been committed sufficient to cause reversal. Shearer v. Aurora, E. & C. R. Co., 200 Ill. App. 225. The testimony offered by appellee, when considered alone, fairly authorized the verdict. In such cases, courts will not reverse a judgment, when it is not manifestly against the weight of the evidence. Blackhurst v. James, 304 Ill. 586.

“The court of review has no right to substitute its opinion for that of the jury in cases of this nature, so long as the verdict of the jury is supported by sufficient evidence. Where the testimony is hopelessly in conflict, the jury must believe one side of the case and disregard the other, in order to arrive at a verdict. Under such circumstances, the prevailing party is entitled to all the favorable inferences legitimately arising from the evidence and the verdict should remain undisturbed, unless it clearly appears that it was the result of passion or prejudice, or is contrary to the clear weight of the evidence. Dick v. Zimmerman, 105 Ill. App. 615.”

As heretofore shown the jury found the codefendant not guilty. However, even though she was also guilty of negligence that proximately contributed to plaintiffs’ injuries, “It is well settled that, when the negligence of two is, in combination, the proximate cause of the injury, either or both may be held responsible for the consequences resulting from their combined negligence.” Chicago & Alton Ry. Co. v. Harrington, 192 Ill. 9.

Defendants claim that what they see fit to characterize as the “theatrical conduct” of plaintiff Mrs. F. T. Cooper, constituted prejudicial error and that the trial court erred in refusing to allow their motion to withdraw a juror because of said conduct. Mrs. Cooper did not testify and appeared in the court room only" once during the course of the trial. She entered with her daughter during her counsel’s opening statement to the jury. At that time counsel for defendants 'stated:

“I want to make a motion at this time, if Your Honor please, to withdraw.a juror and continue this case, and the ground for that motion is the fact that while counsel was making his opening, statement, apparently the situation was so timed that the plaintiff, Mrs. F. Y. Cooper . . . came shuffling into the court room. She got into the court room about ten feet without any shuffling at all, and when she got about ten feet inside of the court room she began to shuffle her feet upon the floor and looking over at the jury with a smile.
“And it was noticeable by many people that when she turned around to go out of the court room, as she was walking out of the court room she did not shuffle her feet at all.
“And that the action of the plaintiff was of snch a prejudicial nature that these defendants can not get a fair trial at the hands of this jury, and the plaintiff should have been in the court room while the jury was being examined.”

Plaintiffs’ counsel in disclaiming any intention of making a display that was calculated to prejudice the jury stated:

“In answer to that statement of counsel, I will say to the Court that Mrs. Cooper walked in her natural manner that she walks now.
“She has a paralysis of the right side, she does shuffle and drag that foot and there was nothing about this action that was premeditated in any manner.
“Mrs. Cooper was left in her hotel at the Sherman House because I didn’t want her present when the opening statement was made to the jury with any reference to her mentality, and the daughter brought her in . . . when the opening statement was being made without any premeditation of any kind, and the testimony in this case is going to show that her smiling and giggling is one of her ailments at this time.
“And to show my good faith, I would be glad to have Mrs. Cooper come in here now and walk into the Judge’s chambers or in the court room outside the presence of the jury, without saying anything to her, and I think the Court will observe the same, that that is her mental reaction and it wouldn’t make any difference.”

We think the court properly denied the motion to withdraw a juror. Mrs. Cooper was one of the plaintiffs in the case and had a right to be present at all the sessions of her trial. The manner in which she entered the court room and conducted herself therein could in any event' only have affected the question of the damages that might be allowed her and the defendants on this appeal have not questioned either the extent of Mrs. Cooper’s injuries or the amount of damages awarded her. That she was neither shamming nor exaggerating her physical injuries is indicated by the testimony of Dr. Sigmund Krumholz, who stated: ‘ ‘ On examination of the facial muscles I found that the lower, the facial muscles of the lower part of the face on the right side were weaker than those on the left side ... on raising the muscles such as by expression and spreading the lips, the left side rose to a higher level than on the right side”; that “on examination of the oral cavities the tongue protruded fair, well, not well enough, but on protrusion or opening of the mouth there was a drooling of saliva . . . the soft palate in the mouth rose evenly, but defectively . . . the speech of the patient was indistinct . . . she could be understood only with great difficulty when she spoke”; that “the patient had a tendency every on and off in answering questions to giggle . . . and her power of mental concentration was very poor”; that “on examination of the extremities I found that the power in the extremities on the right side was not as strong as that on the left side . . . the right arm was in a semi-flexed position and on request to raise the arms, the left arm went up about the level of the right one ... on walking there was a dragging, a slight dragging of the right limb, and the right limb wasn’t raised the same height as that of the left side”; that “on passive movement, that is on movement by myself of the right upper extremity, there wasn’t a give . . . there was spasticity on the right side which wasn’t present on the left side.”

Defendants next contend that the court erred in refusing to grant their motion for the withdrawal of a juror “because of the injection of the question of insurance into the case by counsel for plaintiffs.” There is no merit in this contention. A careful examination of the record discloses that, while the matter of insurance did appear in the case, plaintiffs’ counsel was not responsible therefor. The first mention of insurance in the trial was made at the instance of defendants’ counsel. Following is a portion of the direct examination of defendants ’ witness Whitney Ferris: “Q. What is your business. A. Insurance. Q. By whom are you employed? A. I am employed by myself. Q. I see; on June 30, 1935, what was your business? A. I was in the insurance business. Q. Now, just elaborate a little. What do you mean, as investigator? A. Well, I was doing investigating, yes, for Gower, Grey and Gower, a firm of attorneys in Kan-kakee. Independent work.”

The following testimony was given on cross-examination by plaintiffs’ counsel: “Q. The night this accident occurred, who were you working for? Did you say. A. Gower, Grey and Gower. Q. Gower, Grey and Gower? A. Yes, sir. Q. And who are they? A. They are a firm of attorneys. Q. Who are they representing in this particular matter? A. You mean the companies they represent? Q. Yes. A. Chicago Lloyds Insurance Company.”

On redirect examination by defendants’ counsel Ferris testified as follows: “Q. Do you know what has become of the Chicago Lloyds Insurance Company? A. I understand it is in process of liquidation. Q. Do you know when it went into liquidation? Mr. Mitgang: I object to that. Mr. Brown: You brought it out. Mr. Mitgang: Oh, no. The Court: You "certainly did bring it out. It was brought out here. Mr. Brown: Q. Do you know when it went into liquidation? A. I don’t recall exactly when. It was some time last year, but I can’t recall exactly. Mr. Brown: That is all.” Dr. P. J. Reynolds was called as a witness in defendants’ behalf. After it had been developed on cross-examination that certain testimony given by Dr. Reynolds was not based upon a record which he had made himself, plaintiffs’ counsel moved that such testimony be stricken from the record. Thereafter the trial judge interrogated the witness as follows: “The Court: Wait. You stated that this document you used to refresh your recollection is a copy? The Witness: A. Yes, a copy of the record shown me that I had sent— The Court: Q. You made the record that this purports to be a copy of? The Witness: A. Yes, sir. The Court: Q. I say you made the record that this purports to be a copy of? The Witness: A. Yes, I made it out. The Court: Q. You made it out. The Witness: A. Yes, sir. The Court: Q. When did you make it. The Witness: A. Sometime after the accident. The Court: Q. When did you make it? The Witness: A. I got a report from an insurance company. The Court: Q. No, no. No, when did you make the record this purports to be a copy of? The Witness: A. (No response.) The Court: Q. That night or a week after, or when? The Witness: A. No, about a month after. The Court: Q. And who made that? The Witness: A. We had a temporary — •. The Court: Q. We are not talking about ‘we.’ We are talking about you. The Witness: A. Mostly from my memory and some notes I had in the office. The Court: Q. Who made the notes? The Witness: A. I made them the night of the accident. The Court: Motion overruled.” Plaintiffs’ counsel then resumed his cross-examination as follows: “Q. Have you still got those notes in your office that you made? A. No, sir. Q. How long has it been since you saw the original record that you made in this case? A. Probably two weeks ago, and I think the record, made for the insurance company— . . . Q. Where did you see that record? A. It was brought up to my office by, I presume, a representative of the insurance company.”

. It clearly appears that the matter of insurance was first injected into the case on the direct examination of the witness Perris by defendants’ counsel. It is true that on cross-examination of Perris plaintiffs’ counsel was permitted without objection to elicit from the witness the answer that the firm of lawyers which employed him as an investigator represented “Chicago Lloyds Insurance Company” and then on redirect examination defendants’ counsel was permitted to interrogate the witness in such a manner as to apprise the jury that Chicago Lloyds Insurance Company was in liquidation and was also permitted "to show, over the objection of plaintiffs ’ counsel, that said insurance company “went into liquidation . . . sometime last year. ” The next mention of insurance in the case was when the court asked the witness Dr. P. J. Reynolds, “When did you make it?” and he answered, “I got a report from an insurance company.” It is true that, thereafter, Dr. Reynolds again mentioned insurance twice during his cross-examination by plaintiffs ’ counsel, but in both instances the answers of the witnesses were not responsive to the questions asked. The witness was asked, “How long has it been since you saw the original record that you made in this case?” and he answered, “Probably two weeks ago, and I think the record made for the insurance company — ” “Q. You hadn’t seen this record you say you made a month after this accident happened, you didn’t see that until two weeks ago? A. Yes, sir. Q. Where did you see that record? A. It was brought up to my office by, I presume, a representative of the insurance company.”

Where, as here, the question of insurance was brought out in the first instance by defendants’ counsel and in the second instance by an unresponsive answer of one of defendants’ witnesses to a question asked by the court, the injection of the matter of insurance into the case surely cannot be held to be such prejudicial error as requires a reversal.

As already stated there is no claim that the damages awarded plaintiffs are excessive. They were innocent victims of the collision between the two vehicles. Either the driver of the bus or the driver of the northbound automobile or both were guilty of negligence that resulted in plaintiffs’ injuries. The question of negli-genee was purely one of fact for the jury to determine. The jurors saw and heard the witnesses and had an opportunity' to observe their demeanor while testifying. There was sufficient evidence to support the verdicts and no convincing reason has been shown why they should be disturbed. In our opinion the verdicts of the jury were not actuated by passion or prejudice and a fair trial was had which resulted in substantial justice being done between the parties.

For the reasons stated herein the judgment rendered by the superior court in favor of defendants notwithstanding the verdicts of the jury is reversed and judgment is entered here on the verdicts of the jury against defendants and in favor of plaintiffs Mrs. F. Y. Cooper and Florence Cooper for $12,000 and $1,000, respectively.

Judgment notwithstanding the verdicts reversed.

Judgment here on verdicts against defendants and in favor of plaintiffs Mrs. F. Y. Cooper and Florence Cooper for $12,000 and $1,000 respectively.

Friend and Scanlan, JJ., concur.