author: Mr. Justice Scanlan

text:
    John M. Princell, Appellee, v. Pickwick Greyhound Lines, Inc., Appellant.
    Gen. No. 34,598.

      Opinion filed June 26, 1931.
    Moses, Kennedy, Stein & Bachrach, for appellant; Walter Bachrach and Herbert H. Kennedy, of counsel.
    Joseph D. Kyan, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

John M. Princell, plaintiff, sued Pickwick Greyhound Lines, Inc., a Corporation, et al., in an action on the case. In a trial before the court, with a jury, there was a verdict returned finding the defendant Pickwick Greyhound Lines, Inc., a corporation, guilty and assessing the plaintiff’s damages at the sum of $100,000. At the conclusion of the arguments for a new trial, the trial court “ruled that in event the plaintiff would agree to remit the sum of $25,000.00 upon said verdict the court would overrule said motion for a new trial, but that upon the refusal of said plaintiff to agree to remit said $25,000.00 upon said verdict the court would grant a new trial in said cause.” Thereupon the plaintiff remitted the sum of $25,000 and judgment was entered against the Pickwick Greyhound Lines, Inc., a corporation, in the sum of $75,000. This appeal followed.

The action was commenced against six defendants: (1) Motor Transit Management Company, a corporation; (2) Greyhound Lines, Inc., a corporation; (3) The Greyhound Corporation, a corporation; (4) Motor Transit Corporation, a corporation; (5) Pickwick Greyhound Lines, Inc. of Illinois, a corporation, and (6) Pickwick Greyhound Lines, Inc., a corporation, doing business as Pickwick Greyhound Lines and Greyhound Lines. At the conclusion of the ■plaintiff’s evidence all of the defendants save Pickwick Greyhound Lines, Inc., a corporation, doing business as Pickwick Greyhound Lines and Greyhound Lines, and Greyhound Lines, Inc., a corporation, were, on plaintiff’s motion, dismissed from the case. Following the reading of the court’s instructions to the jury, but before the jury retired from the bar, the plaintiff dismissed from the case Greyhound Lines, Inc., a corporation. The six defendants named in the declaration were represented by the- same counsel.

The plaintiff’s declaration consists of three counts. Each alleges that on August 10, 1929, the defendants and each of them owned, possessed, operated and maintained a motor bus transportation system which extended through and between divers states of the United States, and in and between the city of Omaha, Nebraska, and the city of Kansas. City, Missouri, and owned, managed, operated and maintained as part of said transportation system, as common carriers of passengers for hire and reward, divers motor vehicles known as motor busses; that that date the plaintiff was received and accepted by the said' defendants and each of them as a passenger for hire and reward. The first count charges negligence generally in the management and operation of the motor bus in which the plaintiff was riding as a passenger. The second count charges that the bus was operated at a high, dangerous and excessive speed, at the rate of, to wit, 60 miles an hour. The third count charges that in, upon and along the highway over which the bus was being operated were divers ruts, holes and depressions, which were likely and liable to cause the said bus to jar, jolt and sway with unusual and unnecessary force and violence in the event the bus was driven and operated upon and along the highway at a high or excessive rate of speed, all of which facts the defendants and each of them knew, or would have known had they exercised the highest degree of care consistent with the practical prosecution of their business to carry the plaintiff safely; that the bus was carelessly and negligently operated and driven over the said defective highway at a high, dangerous and excessive speed, at the rate of, to wit, 60 miles an hour. Bach count alleges that the plaintiff was at all times in the exercise of ordinary care for his own safety. The defendant Pickwick Greyhound Lines, Inc., a corporation, appellant, filed the plea of general issue and a special plea of non-ownership and operation; also a special plea,-which states that “before the 19th day of July, 1928, this defendant was known and doing business under the name of the Greyhound Lines, Inc., a corporation; that on the 19th day of July, 1928, the name of said corporation was changed to the Pickwick Greyhound Lines, Inc., a corporation.”

The plaintiff’s evidence tends to prove (inter alia) the following: On August 10, 1929, the plaintiff, then 46 years of age, entered the appellant’s bus depot in Omaha, Nebraska, purchased a ticket to Kansas City, Missouri, boarded a bus and presented his ticket to the bus driver. The driver tore a coupon from the ticket and gave the coupon to the plaintiff as a receipt. After the accident the driver also returned the ticket to the plaintiff. When the plaintiff entered the bus he' was smoking, and the driver informed him that if he wished to smoke he should take a rear seat, which the plaintiff did. It was the first time the plaintiff had used this bus line and he was not familiar with the highways between Omaha and Kansas City. At the time of the accident and shortly before it, the bus was descending a grade and traveling at an estimated speed of 50 miles an hour. Plaintiff was the sole passenger on the rear seat, which extended across the entire back of the bus. There were other passengers, men, women and children, seated ahead of him. There were rough spots in the roadway and when the wheels of the bus struck them the bus jolted and “bounced” in such a manner as to cause the plaintiff to “bounce” off the seat about six inches. Other passengers were “bounced” and the plaintiff and one other passenger shouted loudly to the driver to stop, but he did not check or diminish the speed of the bus. The bus then hit a “big bump” and the plaintiff was thrown from the seat. His head hit the ceiling of the bus and he fell, or was thrown, back on the seat against something hard, the cushions of the seat having been dislodged by the violent jolting of the bus. The passengers then shouted to the driver to stop, and after the bus had proceeded about a quarter of a mile from the place of the accident it came to a stop. That the plaintiff was very seriously injured in the accident is not questioned, but we shall later refer to this branch of the case. In his closing argument to the jury, counsel for the appellant made the following statement: “Now, there isn’t any real conflict in the evidence. I agree with my distinguished adversary. The only place where there is a conflict is on the speed of that bus. He swears it was, fifty miles an hour. "Why? To get a verdict, of course; but the overwhelming weight of the evidence is that it was not over thirty-five miles an hour. There isn’t any other substantial conflict in the evidence.”

The appellant contends that the burden of proving that it owned, operated or controlled the motor bus, rested upon the plaintiff; that the liability of the appellant, if any, should have been determined upon the evidence as it stood at the close of the plaintiff’s case and that the plaintiff, at the conclusion of his evidence, had not established the material averment in his declaration “that this defendant (appellant) ‘owned, possessed, operated and maintained’ the motor bus in question”; that the appellant, when its motion for a peremptory instruction was overruled by the court, at the conclusion of the plaintiff’s evidence, “then elected to stand by its motion, notifying the court that it would take no further part in this case. . . . The liability, if any, of the defendant should then be determined upon the evidence as it stood at the close of the plaintiff’s case”; and “that by allowing the jury, in arriving at their verdict, to consider all the evidence given by these witnesses for the Greyhound Lines, Inc., a corporation, the jury were permitted to assume that the defendant Pickwick Greyhound Lines, Inc., a corporation, was responsible for their testimony and vouched for their credibility.” In considering this contention it is necessary to keep in mind the fact that the same counsel represented all of the defendants named in the declaration. The defendant Greyhound Lines, Inc., called as a witness Clifford Leabo, the driver of the bus. Counsel for the defendants, upon the direct examination, carefully avoided asking this witness any questions that would tend to bring out the name of the company for which he was working on the day in question, but on cross-examination the witness testified that he was working for the Pickwick Greyhound Lines at the time of the accident. Appellant seeks to avoid the effect of this evidence by the instant contention. At the conclusion of the plaintiff’s evidence the' appellant made a motion for a directed verdict in its favor and when the court overruled this motion its counsel then stated that it would stand upon its motion for a directed verdict and that it would talce no further part in the trial of the cause, and assumin'g that this position was taken in good faith, nevertheless, it is clear that it was afterwards abandoned, or, at least, not maintained. Counsel for the defendants had the record show that he called certain witnesses on behalf of the Greyhound Lines, Inc., but it is plain that the testimony of these witnesses tended to rebut that offered by the plaintiff which applied directly to the appellant. While the record shows that the closing argument was made “for defendant,” nevertheless, it plainly appears from a reading of the same that it was intended to aid the appellant. Nowhere in it was the name of either defendant mentioned. Counsel refers to “the bus” and “the common carrier.” At one place in the argument counsel did state: “If they are liable at all they are liable because he (referring to the driver) was liable.” At the time the instructions offered by the counsel for the defendants were tendered to the court there were two defendants still in the case, the appellant and Greyhound Lines, Inc., and all of the offered instructions were carefully drafted, by able counsel, to apply to both of these defendants, and many of them directed the jury to consider all of the evidence introduced upon the trial of the cause in determining the liability of the defendants. As bearing upon this point we will cite a few of the defendants’ given instructions:

.“22. The court further instructs you that if the accident in question was unavoidable, so far as the defendants were concerned, then no liability is incurred by them, whether as a result of it said John M. Princell was injured; and if in this case the jury believe from all of the evidence and under the instructions of the court that, so far as the defendants were concerned, the injury to said John M. Prineell was unavoidable, then the jury should find the defendants not guilty.

“15. The jury are instructed that the plaintiff cannot recover at all in this case against the defendants unless the jury believe the plaintiff has proved by a preponderance of the evidence the following propositions :

“First: That the plaintiff was exercising ordinary care for his own safety at and just prior to the time of the accident in question.

“Second: That the defendants were guilty of negligence in the manner charged.

“Third: That such negligence, if any, was the proximate, direct cause of said accident and the plaintiff’s injuries, if any, and if you find from the evidence that the plaintiff has failed so to prove these propositions as stated or if he has failed to prove any one of them, or if you find from the evidence that the evidence is evenly balanced so that you are in doubt and unable to say on which side is the preponderance as to any one of these propositions, or if the evidence preponderates in favor of the defendants as to any one of these propositions, then the plaintiff cannot recover against the defendants and you should find the defendants not guilty.

“10. The Court instructs you that the defendants were not insurers of the absolute safety of their passengers ; and in this case if the jury believe from the evidence that the injuries to the plaintiff, if any, were caused by running into a defect in the road which, under the facts and circumstances surrounding said accident, could not have been guarded against by the exercise of sound judgment and by the most vigilant foresight and care on the part of said defendants, then you are instructed that you should find the defendants herein not guilty.

“9. The Court instructs the jury that one of the defenses relied upon in this case is that of contributory negligence. ... If the jury believe from the evidence under the law as stated under the instructions of the court, that said John M. Princell was guilty of contributory negligence, as herein defined, immediately prior to and at the time of the accident in question, then the verdict of the jury must be for the defendants.

“16. The jury are instructed that the plaintiff is required by law to establish his case by a preponderance of the evidence before he can recover. If the plaintiff in this suit has not so established his case, or if the evidence is evenly balanced so that the jury are in doubt or unable to say on which side is the preponderance, or if the preponderance of the evidence is in favor of the defendants, then, in either of these cases the verdict should be not guilty.

“20. If the jury believe from the evidence that without any fault or negligence of the defendants the plaintiff accidentally fell from the rear seat of said motor bus to the floor thereof, even though such accident occurred without any negligence on the part of the plaintiff, then you should find the defendants not guilty.

“21. The court instructs you that a carrier of passengers is not an insurer of their safety and for a mere accident unmixed with negligence on the part of the carrier directly contributing thereto, no action, will lie, even though injury has been done, and if the jury shall find from the evidence that there was no negligence on the part of-the defendants, its agents and employees, directly contributing to cause the plaintiff’s injuries, if any, then you should find the defendants not guilty.”

In view of the record it is idle for the appellant to argue that it took no part in the trial after the court overruled its motion for a directed verdict at the close of the plaintiff’s case. As the appellant did not stand upon its motion, it is precluded from asserting that the jury were not warranted in considering, as to it, all of the evidence in the case. (See Jennings v. Baltimore & Ohio R. Co., 195 Ill. App. 543; Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249, 264.) However, the plaintiff, before resting his case, proved that the motor bus in question was operated and controlled by the appellant, and the trial court properly refused to then direct a verdict in its favor. The accident happened August 10, 1929. The appellant pleaded, specially, that prior to July 19, 1928, it was known and doing business under the name and style “Greyhound Lines, Inc., a corporation,” but that on said date it changed its name to “Pickwick Greyhound Lines, Inc., a corporation.” It was not necessary for the plaintiff to prove the facts admitted by this plea. The plaintiff proved that he purchased the ticket at the bus station in Omaha; that the ticket bore upon its face, in large letters, the words “Issued by Pickwick Greyhound Lines, ’ ’ and that the ticket was accepted by the driver of the bus. It seems clear from this evidence, especially in view of the special plea, that the plaintiff proved, prima facie, the appellant’s ownership and operation of the bus in question. The appellant, in this court, contends that a close examination of the ticket will reveal that it was issued by “Motor Transit Management Company,” and not by the appellant, and argues that “the proper defendant to bear the burden of the claim was the Motor Transit Management Company, a corporation and that a judgment has been rendered against the wrong defendant.” The words “Motor Transit Management Company” on the ticket are not discernible to anyone possessing only normal vision. After looking at the ticket carefully, one could only read that it was “Issued by Pickwick Greyhound Lines.” These last quoted words are printed in large, plain type that stands out prominently upon the face of the ticket. The word “Pickwick” appears at the top of the ticket. Just below this word appears the word ‘ ‘ Greyhoqnd, ’ ’ and just below that word appears the word “Lines.” Acting upon the suggestion of counsel for the appellant, we find that by the aid of a powerful magnifying glass we are able to read between the word “Greyhound” and the word “Lines,” the words “Motor Transit Management Company.” The smallest regular size of printing type is brilliant. This size can be read by one possessing excellent vision. The letters in the words “Motor Transit Management Company” appear to be about one-third the size of brilliant type. The words in question are printed in such exceedingly small type and are so artfully placed that they appear to the eye, without the aid of a magnifying glass, as a mere black line. Counsel for the plaintiff asserts that the record shows that these words were never called to the attention of the trial court, the jury or the counsel for the plaintiff. After a careful reading of the record we find that this assertion is fully warranted. The same counsel represented all of the defendants, and if he knew of the hidden words, he did not in any way call attention to them during the trial. The plaintiff is fully warranted in the argument that “the obvious purpose of the defendant in printing the unreadable name of the other company on the ticket, and in concealing it between the words comprising defendant’s corporate name, was to deceive the public and to enable it to shift responsibility in the event of injury to its passengers.” A common carrier must be honest and fair in its dealings with the public. If the Motor Transit Management Company operated and controlled the bus, why was its name concealed upon the ticket? If the appellant, in the trial court, intended to rely upon the defense it now seeks to interpose in this court by the instant contention, why was it not made in the trial court? The appellant offered no evidence as to the ownership and control of the bus and it made no request for instructions bearing upon that subject, and the point was not even argued to the jury by its counsel. This counsel stated to the jury: “Therefore I say to you gentlemen, there is only one thing for you to do, consider this from the standpoint of the practical operation of the bus, and in the practical operation of that bus was that man carried with the proper degree of care?” Moreover, certain instructions given on behalf of the two defendants, appellant and Greyhound Lines, Inc., are based upon the assumption that these defendants were in charge and control of the bus and that the plaintiff was a passenger. A passenger, when he purchases a ticket from a common carrier, is not bound by words upon it that cannot be read without the aid of a powerful magnifying glass. We must assume from the record in this case that during the trial of the cause counsel for the appellant had no knowledge of the presence upon the ticket of the words in question. To assume otherwise would amount to charging the counsel for appellant with practicing bad faith towards the court, the jury and plaintiff during the trial of the case. The appellant, therefore, having tried the case upon the theory of fact that there were no such words upon the ticket, should not be allowed to assume a different attitude in this court. But even if the words “Motor Transit Management Company” must be considered, in the instant case, as a part of the ticket in question and binding upon the plaintiff, nevertheless, the ticket would still constitute prima facie proof that the “Pickwick Greyhound Lines” and the “Motor Transit Management Company” issued and sold the ticket and had charge and control of the bus. In its brief the appellant asserts that it is a Delaware corporation, and it makes a rather strained argument to the effect that if the words “Pickwick Greyhound Lines” are referable to any of the defendants sued, they are at least as equally referable to the Pickwick Greyhound Lines, Inc., of Illinois, a corporation, as to the appellant, and that as the plaintiff dismissed, at the conclusion of its case, Pickwick Greyhound Lines, Inc., of Illinois, a corporation, it would be mere guesswork to draw the inference that the words “Pickwick Greyhound Lines” that appear on the ticket are referable to the appellant, instead of Pickwick Greyhound Lines, Inc., of Illinois, a corporation. In response to the instant contention the plaintiff, in his brief, called attention to the fact that there was no evidence in the record to sustain the assertion of the appellant that it is a Delaware corporation. After the brief of the appellee was filed, the appellant then saw fit to file in this court a photostatic copy of the appeal bond in the case, and in its reply brief it calls our attention to the seal affixed to the signature of the appellant upon the bond. The seal purports to be that of a Delaware corporation, and appellant argues that because of this seal we must hold, as a matter of fact, that the appellant is a Delaware corporation. This argument is, of course, without merit and it is but another indication of the determination of the appellant to inject into the record alleged facts that were not brought out in the trial court. The Pickwick Greyhound Lines, Inc., of Illinois, was voluntarily dismissed from the case by the plaintiff at the conclusion of his evidence, and the Pickwick Greyhound Lines, Inc., a corporation, described in plaintiff’s declaration as doing business as the Pickwick Greyhound Lines and Greyhound Lines, pleaded specially that it had been sued herein as Greyhound Lines, Inc. The plea further admits that the Greyhound Lines, Inc., had changed its name to Pickwick Greyhound Lines, Inc., a corporation, which is the name of appellant. It would appear, therefore, that the instant contention of appellant is answered by its own plea. As bearing upon the question of the proof offered by the plaintiff, we may add that it appears further from his evidence that after .the accident and upon the arrival of the bus at Auburn, Nebraska, the bus driver called a doctor, who took charge of the plaintiff and had him removed to the Auburn Hospital ; that after the plaintiff had remained in this hospital a week the doctor directed him to go to Kansas City, Missouri, to the headquarters of the bus company; that the plaintiff went there and while there certain representatives of the “Pickwick Greyhound Lines” called on him and its doctor examined him and took X-ray pictures of him; that lawyers of the “Pickwick Greyhound Lines ’ ’ called on him; that Dr. Swift, representing the “Pickwick Greyhound Lines,” was present at the Wesley hospital, in Chicago, when Dr. Magnuson operated upon the plaintiff. Appellant offered no evidence upon the question of the control or ownership of the bus. Such evidence, of course, was in its' possession and control. The same counsel represented all of the defendants and it was within his power to prove definitely the company or companies that owned and controlled the bus. He saw fit to offer no evidence upon the subject. It has been frequently held that where one party has evidence upon a point as to which the other party has made a prima facie case, but fails to present it, such failure may be taken as an admission that such evidence, if presented, would not aid the party who has it.

The appellant did not ask for a directed verdict at the close of all the evidence, and if we are correct in our holding that it did not stand upon its motion for a directed verdict at the close of plaintiff’s case and that it did take part in the further trial of the cause, then, of course, the statement of the witness Clifford Leabo that he was working for the “Pickwick Greyhound Lines” at the time of the accident was competent evidence tending to show that the appellant owned and operated the bus at the time of the accident.

The appellant contends: (1) “The trial court erred in admitting in evidence over the objection and exception of the defendant, Pickwick Greyhound Lines, Inc., a corporation, Plaintiff’s Exhibit Number 10, being the February, 1930 issue of ‘The Greyhound Traveler’ (2) “The trial court erred in admitting in evidence over the objection and exception of the defendant, Pickwick Greyhound Lines, Inc., a corporation, Plaintiff’s Exhibit Number 11 purporting to be a time-table corrected to January 15, 1930 and necessarily issued subsequent to that date”; and (3) “The trial court erred in admitting in evidence over the objection and exception of the defendant, Pickwick Greyhound Lines, Inc., a corporation, Plaintiff’s Exhibit Number 12, being a photostatic copy of a ticket alleged to have been purchased by the witness, Vernon Thompson in the spring of 1930.” We have carefully considered the argument of the appellant in support of these three contentions and we find no merit in it.

The appellant contends that the trial court erred in giving to the jury plaintiff’s instruction number 23. This instruction reads as follows:

“23. You are instructed that it is the duty of a common carrier to do all that human care, vigilance and foresight can reasonably do, under the circumstances and in view of the character and the mode of conveyance adopted, consistent with the practical prosecution of its business, reasonably to guard against accidents and consequential injuries, and if it neglects so to do it is to be held strictly responsible for all consequences which directly flow from such neglect, (provided such neglect and consequences is alleged in the declaration and is established by a preponderance or greater weight of. the evidence); that while the carrier is not an insurer of the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passenger and is responsible for the slightest neglect resulting in injury to the passenger (provided such neglect and injury is alleged in the declaration and is established by a preponderance or greater weight of the evidence), if the passenger is at the time of the injury exercising ordinary care for his own safety.”

The appellant argues that the instruction 1 ‘ stated to the jury two inconsistent rules of law defining the duty of a common carrier of passengers. The first half of the instruction defined that duty correctly. The second half of the instruction defined the same duty erroneously.” The appellant cites in support of this contention certain cases which announce the rule that an erroneous instruction cannot be said to be cured by a proper instruction on the other side when from the evidence it is impossible to say that the jury did not follow the erroneous one. It will be noted that the instruction in question is contained in a single paragraph. The argument of the appellant amounts to no more than this, that the words, “in view of the character and the mode of conveyance adopted, consistent with the practical prosecution of its business,” used in the first part of the paragraph, should have been repeated in the second part of the paragraph. In his argument to the jury counsel for the plaintiff stated that it “was the duty of the defendant to exercise the highest degree of care consistent with the practical prosecution of the business to carry him safely.” Counsel for the appellant, in his argument, stated to the jury: “Now, there cannot be any recovery in this case, gentlemen, as the Court will instruct you, unless there is a failure on the part of the bus line to exercise a degree of care, a high degree of care, too, consistent with the practical operation of its business. A common carrier is not an insurer of its passengers ’ safety. It does not give a guaranty policy to everybody that buys a ticket that they won’t be hurt. A common carrier has to operate its bus and has to give service to the public as the law requires it to do; it has to operate its busses so as to keep up according to the schedules or times fixed by the laws and regulations of the states, and has to go from place to place as required by schedule.” Counsel for the appellant further stated in his argument: “Therefore I say to you gentlemen, there is only one thing for you to do, consider this from the standpoint of the practical operation of that bus, and in the practical operation of that bus was that man carried with the proper degree of care ? ’ ’ The instant contention, in our judgment, is without substantial merit, as the jury could not have been misled by the instruction. Moreover, the defendants’ given instruction number 10 imposed upon the defendants the duty of exercising a higher degree of care than does the instruction in question. Instruction number 10 contains no qualification respecting the character and the mode of conveyance adopted and the practical operation of the defendants’ business, and by it the jury were authorized to find the defendants guilty unless the accident “could not have been guarded against by the exercise of sound judgment and by the most vigilant foresight and care on the part of said defendants.” In its reply brief the appellant seeks to evade the effect of this instruction by claiming that it was offered by the defendant Greyhound Lines, Inc., and not by the appellant, and that therefore, under the rule laid down in Garvey v. Chicago Rys. Co., 339 Ill. 276, the appellant may assign error on an instruction offered by a codefendant. It is a sufficient answer to this contention to say that instruction number 10 clearly applies to both defendants and by it the jury were instructed to find both defendants not guilty if they found from the evidence certain facts!

During the cross-examination, by the attorney for the plaintiff, of Eimer Castberg, a witness called by the defendant Greyhound Lines, Inc., the following occurred: “Mr. Eyan (counsel for the plaintiff): Q. You never told counsel about this jerk, or you never talked to anybody about your testimony? A. No. Q. Don’t you know you aren’t telling the truth? Mr. Bachrach: I object to that. The Court: Oh yes. Mr. Eyan: I withdraw that. The Court: Not only that but you apologize. Mr. Eyan: All right, I apologize.” The appellant contends that “notwithstanding the apology of counsel and the ruling of the trial court, the jury had heard what was in effect the unsworn testimony of counsel for plaintiff. The reflection upon the witness and the party producing him was irretrievably cast. The damage had been done and the ruling of the court could not eradicate from the minds of the jury its prejudicial effect.” The appellant has strenuously insisted that it stood upon its motion for a directed verdict at the conclusion of the plaintiff’s case. We will quote one of its statements in its brief upon this subject: “The trial court then overruled the motion of the defendant Pickwick Greyhound Lines, Inc., a corporation, for an instructed verdict in its favor; and the Pickwick Greyhound Lines, Inc., a corporation, thereupon elected to stand upon its motion for an instructed verdict and notified the court that it would take no further part in the trial of the case. Thereafter it neither introduced evidence nor tendered instructions. The defense of the case was undertaken solely by the Greyhound Lines, Inc., a corporation, and all of the evidence introduced by way of defense was in behalf of this corporation.” The appellant, to be consistent, should therefore concede that the objection of Mr. Bachrach to the question complained of was made on behalf of Greyhound Lines, Inc., alone, and it would then follow that the appellant is in no position to raise the instant contention. However, in order to make the instant contention, the appellant is forced to take the position that it produced the witness Castberg. It cannot take one position in the trial court and an entirely different one in this court, nor can it take contradictory positions in this court. Even if the appellant had the right to raise the instant contention, we would hold that it possesses no substantial merit, as the trial court by his stern attitude towards the plaintiff’s counsel prevented any possible harm to the appellant.

The appellant contends that the counsel for the plaintiff made a number of prejudicial statements to the jury in his opening and closing arguments to the jury. We have read both arguments and we find but one objection made during the two arguments. During the closing argument of counsel for the appellant he stated to the jury that the appellant had not wasted a minute’s time in the examination of the doctors called by the plaintiff because it was not' contesting the claim that the man was hurt. During the closing argument of Mr. Ryan the following occurred: "Yet Mr. Bachrach says, 'We let you show that without objection.-’ But did he? Did you hear the struggle we had to get in the x-ray films that the Roentgenologist Doctor Blaine, at Wesley Hospital took, on some technical objection that he did not pull the switch. Mr. Bachrach: I object to that. The Court: He may make the argument.” As the appellant contends that it took no part in the proceedings after its motion for a directed verdict had been denied, it must be presumed that the objection made to the statement of Mr. Ryan was made solely on behalf of the defendant Greyhound Lines, Inc., and therefore the appellant is in no position to raise the instant contention. However, we are not disposed to hold that the statement was an improper one. Counsel for the appellant, by his argument, sought to convey the impression that the appellant had not contested in any way the claim of the plaintiff as to his injuries, and the counsel for the plaintiff had a right to show that this argument was not warranted by the record.

The appellant contends that “the verdict is so flagrantly excessive that it can be accounted for only on the grounds of passion and prejudice. A remittitur will not remove this passion and prejudice.” The plaintiff’s evidence as to his injuries, pain and suffering was not rebutted in any way by the appellant. After the accident the bus proceeded to Auburn, Nebraska, and there the driver called Dr. Andrews, who took charge of the plaintiff and had him removed to the Auburn Hospital. While there his back was “plastered” with adhesive tape and he was given narcotics. He was suffering such severe pain that the doctor advised him to go to Kansas City, Missouri, the headquarters of the bus company. When the plaintiff arrived at the latter place “representatives of the Pickwick Greyhound Lines” talked with him. One of these representatives, Dr. Nesselrode, examined him and took X-ray pictures of his back. Although the plaintiff was constantly kept under the influence of narcotics he suffered intense pain and his condition was steadily becoming worse. The muscles of his legs twitched and he could barely walk. Dr. Nesselrode told him he “had a broken back, or fracture of the first lumbar vertebrae,” and that he was in a dangerous condition, and he advised the plaintiff to go to Chicago and see Dr. Magnus on. An ambulance was then called and the plaintiff was taken to the railroad station. He entered Wesley Hospital, in Chicago, on August 20, 1928, at which time he was having spasms and convulsions and was unable to walk. A number of doctors, including Dr. Magnuson, examined him. X-ray pictures were taken and he was put to bed and placed on a stiff canvas stretcher, in a Buck’s extension, with toe weights on his feet. He remained in this position for three weeks, during all of which time he suffered intense pain and was given morphine, codeine, luminol and allonal. He lost control of his bowels, due to “an irritation to the nerve supply of the bowel which caused a spasm of the bowel and it was extremely difficult to cause the bowels to empty themselves because of their irritated condition, their rigid condition.” On September 10 he was given a general anesthetic and operated upon by Dr. Magnuson. X-ray pictures disclosed that the plaintiff had sustained “a compression fracture of the first lumbar vertebra”; that “the top of the sacrum which normally is at an angle of approximately from thirty to forty-five degrees, here is practically vertical, it is facing forward, showing that there is an accentuation of the normal curve of the back, much exaggerated and on that account the fifth lumbar, which should have a resting place on it, is literally suspended in air because this surface which now is vertical should be this way, so that the bone above it could rest on it. This sacrum is turned this way so that this bone is almost as though it had nothing to rest on, but of course there are ligaments and other supporting structures that do keep it from sliding entirely out of position.” X-ray pictures taken on November 11 showed that in the operation by Dr. Magnuson an inlay of bone had been fastened to the spinous processes of six vertebrae for the purpose of splinting or supporting the collapsed vertebra. In the operation Dr. Magnuson made an incision in the spine between the mid-dorsal region and the lower lumbar region, separated the muscles from their attachment to the spine, cut seven inches of bone out of the tibia, the large bone between the knee and the anide, and fitted it into the spine and then fastened it there. This bone from the tibia, three-fourths inch in width and three-eighths inch in depth, was grafted to the spine to prevent further deformity and to immobilize and fix the spine so that the constant strain of the forward bending would not produce pain and further atrophy of the bone. The bone graft, which was described as like welding several links of a chain together, resulted in a stiffening of the vertebrae. The plaintiff’s condition, following the operation, was so serious that the physicians were obliged to give him a blood transfusion. Since the operation he has been obliged to wear a Taylor brace, which is a steel brace going around the hips, up the back and around the shoulders and chest, and he cannot walk without this brace. When he was able to get up after the operation, he suffered “tremendous pain” in the lower part of his back when he stood up. X-ray pictures of his back were then taken and several doctors, including Dr. Magnus on and Dr. Swift, the latter representing the Pickwick Greyhound Lines, held a conference to determine the advisability of another operation. While the plaintiff agreed to submit to another operation, the doctors concluded that he would in all probability not survive such an- operation; that even if it were possible to perform a second operation successfully it would be necessary, in order to correct the condition that existed in the lumbo-sacral joint, to fasten these two bones together in a way that would not permit any strain to fall on the ligaments; that as a result of the first operation the plaintiff has six vertebrae immobilized, and that even if a second operation could be performed successfully it would result in a stiffening of his entire back. After the operation of September 10, the plaintiff was in a state of profound unconsciousness for a period of five days, and was semi-conscious for five days thereafter. He was required to lie on his back, without moving, for four weeks. He was in constant pain and it was necessary to give him morphine and other narcotics to produce sleep. Since he left the hospital he has been taking electrical treatments, massage and rest in bed, and he cannot walk across the room without the aid of a cane, as he is unable to control his legs and he loses his balance.- He cannot walk at all without using the metal brace. At times he has muscle spasms which shoot down into his legs. When he walks or stands for any length of time he has great pain in the lower part of his back. After he remains seated a while he must then change his position to obtain relief. He is able to sleep only when he takes Paralgia tablets. A physician testified that the deformity in the lower part of the plaintiff’s spine could not • be corrected by an operation; that the deformity is such that it would require a separation of these vertebrae in order to place them in a normal position, but that this operation would entail such a degree of surgical shock and cause such damage to the tissues and spinal nerves that the plaintiff would not be able to survive it; that even if the operation were successful and the plaintiff survived, his back would then be as “rigid as a poker” from his hips to his shoulders, and the function of his legs would not be restored. For seven or eight years prior to the accident the plaintiff was employed by a realty company and earned $800 per month. Three months prior to the accident he entered the services of a finance corporation, because he believed there were better prospects for him in this new employment. He was selected to fill this position from a group of 15 or 20 competitors. In this employment he earned $110 per week. At the time of the trial his hospital, nurses’ and doctors’ hills were approximately $3,800. In his closing argument to the jury counsel for the appellant stated that “the man is hurt. His need is great,” hut he further stated that he would not discuss the question of the injuries nor the amount that should he allowed the plaintiff in case the jury found for the latter. The record shows plainly that the appellant had it in its power to introduce evidence as to the plaintiff’s injuries, hut it did not see fit to do so. The undisputed evidence shows that the plaintiff is a physical wreck and that he will always remain such; that he will never be able to engage in any occupation and that he will suffer severe pains as long as he lives. We find nothing in this record to warrant us in holding that the verdict of the jury was grossly excessive or that it was the result of passion and prejudice. The trial court was of the opinion that the amount of the verdict, $100,000, was excessive and he compelled the plaintiff to enter a remittitur, and we would not be justified in holding that the amount of the judgment, $75,000, is excessive.

The appellant has had a fair trial and the judgment of the superior court of Cook county is a just one and it should be and it is affirmed.

Affirmed.

Gridley, P. J., and Keener, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    The People of the State of Illinois ex rel. Fae Cullison, Appellee, v. Gove Dile, Appellant.
    Opinion filed January 19, 1931.
    Rehearing denied, opinion modified and refiled March 11, 1931.
    Geo. W. Lackey, for appellant.
    Guy E. McGaughey, State’s Attorney, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On February 19, 1930, Mrs. Fae Cullison filed a complaint before a justice of the peace, alleging that she is a married woman, and that while living separate and apart from her husband, she became pregnant, and was delivered of a child, which is now living and by law would be deemed a bastard, and that the appellant Gove Dile is the father of said child. A warrant was issued by said justice of the peace for the said Gove Dile. He was brought before the said justice of the peace and admitted to bail. At the June Term of the county court of Lawrence county, Illinois, a hearing was had on the merits of the case. Before the commencement of the trial the appellant made a motion to dismiss the case, assigning numerous reasons. The motion was overruled by the trial judge. Permission to amend the complaint was given and the case went to trial before a jury, which found that the defendant was the father of said bastard child. Judgment was entered on the verdict for $200, and $100 yearly for nine years, and the case is brought to this court on appeal.

The first assignment of error is that the trial court allowed the motion to amend the complaint, and the said amended complaint was not sworn to and refiled in said court. In order to present this question to this court for review the abstract should contain the complaint so that this court could examine it and see whether it was amended and filed. The abstract in this case does not contain any part of the complaint, or the amended complaint, and the appellant is not in a position at this time to raise this question.

It is immaterial in the state of the record in this case whether the complaint was amended and refiled, as the defendant went to trial on the issues of the case, cross examined the complainant’s witnesses, and put in evidence in proof of his defense. This is a civil case and not a criminal case, and any error that might arise in the preliminary steps in the proceedings are waived by the defendant going to trial upon the merits of the case. (People v. Humbracht, 215 Ill. App. 29; Rose v. People, 81 Ill. App. 128; Rawlings v. People, 102 Ill. 475.)

It is insisted by the appellant that the court erred by giving instructions on behalf of the complainant and refusing his instructions, numbers one and two. Rule 14 of our court provides that “the abstract must be sufficient, and present fully every error relied upon.” The abstract in this case does not contain the instructions given by the court, in behalf of the defendant, and only part of those given in behalf of the complainant. It is. the contention of the appellee that the instructions given for the defendant fully covered the points of law contained in the refused instructions. In the absence of the given instructions we cannot pass upon this assignment of error.

At the trial, Lester Cullison, the husband of Fae Cullison, was allowed to testify that he had not had access to his wife from March 22, 1927, until October, 1927. The proof shows that the complainant became pregnant during the month of June, 1927. Lester Cullison, the husband, was permitted to give this evidence over the objection of the defendant. This being a civil action we are of the opinion that it was error for the court to permit the husband of the complainant to testify in her behalf. However, we are of the opinion that it was not reversible error to permit the husband of the complainant to so testify.

Fae Cullison, the complainant, without objection, testified to numerous occasions upon which she had had sexual intercourse with the defendant, and names the times and places. She is corroborated in a great many respects by other witnesses. The defendant was frequeiitly at the home of Fae Cullison, during the month of June, 1927, and on numerous occasions they were seen together away from home. The evidence clearly establishes the fact that Lester Cullison was living separate and apart from his wife from March, 1927 to September, 1927, and the child was conceived in June, 1927. Pearl Watts testified that the defendant told her that the child was his and that he intended to ‘1 see her through. ’ ’ He admits being with her many times but denies having sexual intercourse with her. In this examination when asked the question: “Tell the jury if this is your child,” his answer was, “No, sir; I don’t think it is.”

From a review of the evidence we are of the opinion that the jury could have come to no other reasonable conclusion than that the defendant was the father of the child. So the admission of the testimony of Lester Cullison was not reversible error. We find no reversible error in the case and the judgment of the county court of Lawrence county is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Barry

text:
    Peter Makarewicz, Plaintiff in Error, v. Hoyt Metal Company, Defendant in Error.

      Opinion filed June 4, 1931.
    Harold J. Bandy and Philip Gr. Listeman, for plaintiff in error.
    Pope & Driemeyer, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In an action of assumpsit plaintiff averred, in the first count of his declaration, that on July 24, 1928, he was employed by defendant in its factory; that they were both subject to the provisions of the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq.; that on the day aforesaid he sustained an accidental injury which arose out of and in the course of his employment; that while in the discharge of his duties an iron door became unfastened and fell upon him, causing several of his ribs to be fractured, etc.; that shortly thereafter he applied to defendant’s superintendent for compensation for his injuries and was told that if he would not file a petition for compensation under the statute the defendant would pay him the total amount he would be entitled to recover under the Act; that he relied upon the said promise and filed no petition, etc.

The averments of that count, if true, were sufficient to show that plaintiff would have been entitled to compensation had he filed his petition in time. One of the essential averments in that regard is that the plaintiff sustained an accidental injury which arose out of and in the course of his employment. Without proof of that averment plaintiff would not have been entitled to compensation under the statute. The words “out of” point to the origin of the cause of the accident, and the words “in the course of” point to the time, place and circumstances under which the accident occurred. There could be no recovery under the statute unless the injury occurred in the course of the employment and also arose out of the employment. Board of Education v. Industrial Commission, 321 Ill. 23. While plaintiff .averred the origin of the cause of the accident, he offered no evidence that even tended to prove the averment. Without such proof it cannot be said that he would have been entitled to any sum whatever under the Workmen’s Compensation Act.

The second and third counts contain similar averments except they do not charge that the accident arose out of the employment. Instead of so averring they charge that plaintiff believed or had good reason to believe that he was entitled to recover compensation under the statute. The promise alleged to have been made by the defendant is the same promise averred in the first count. The second and third counts are not framed on the theory that plaintiff had a claim about which there was a controversy and that the parties had made a compromise agreement for its settlement. It seems to us that it was incumbent upon the plaintiff to aver and prove that if he had filed a petition for compensation he would have been entitled to an award. That must be true because the alleged promise was to pay him what he would have been entitled to if he had filed a petition. He utterly failed to prove that the accident arose out of his employment —the origin of the cause of the accident.

Plaintiff testified that soon after his injury he asked defendant’s superintendent for compensation and that he was told they were not going to pay him; that a little later he again spoke to the superintendent about the matter and was told to see the defendant’s lawyer, Mr. Chapman. He did not testify that the superintendent made any promise to pay him. Thereafter plaintiff and his attorney called upon Mr. Chapman and plaintiff testified that on that occasion Mr. Chapman made the promise relied upon, but that Mr. Chapman also told them that he would have to take the matter up with headquarters, the main office. He says that- he later called Mr. Chapman on the phone and that Mr. Chapman told him he hadn’t heard from the authorities. As we understand his evidence the time for filing a petition had not then expired. He had no further talk with Mr. Chapman or the superintendent and let the matter rest until he filed his petition with the industrial commission in September, 1929, more than a year after the accident. Plaintiff offered no evidence to show that Mr. Chapman had authority to make the alleged promise. Without authority so to do the promise of the attorney, if made, would not be binding on the defendant. McClintock v. Helberg, 168 Ill. 384.

In the state of the proof the court did not err in directing a verdict for the defendant and the judgment is affirmed.

Affirmed,.


text:
    W. D. Pemberton et al., Appellees, v. Charles V. Parker, Appellant.
    Opinion filed June 4, 1931.
    Miley & Combe, John W. Browning and K. C. Ronalds, for appellant.
    Kane, Scott & Kane, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On August 2, 1920, appellees gave appellant a written lease on 280 acres of land by the terms of which appellant was given the right to mine for coal, etc. Until coal was reached appellant agreed to pay appellees $2 per acre each year. No coal was ever reached. On September 19, 1920, appellant paid appellees $560, the first year’s rent. He assigned the lease to a coal company of which he was the president. The assignee paid the annual rent until September, 1925, but has failed to pay the rent from that date until September, 1927. This suit was brought in November, 1927, to recover two years’ rent. Before the case was reached for trial appellant and the assignee, on May 17, 1929, elected to terminate the lease in accordance, with the provisions thereof. The parties waived a jury and the trial resulted in a judgment for $1,148.

Appellees never released appellant from his liability for the rent. The mere fact that appellant assigned the lease to the coal company did not operate as a release of appellant. Sexton v. Chicago Storage Co., 129 Ill. 318; Barnes v. Northern Trust Co., 169 Ill. 112. The fact that appellant and the coal company gave appellees written notice of their election to terminate the lease, in accordance with the terms thereof, did not relieve appellant from his liability for the rent that had already accrued at that time. Bettman v. Shadle, 22 Ind. App. 542, 53 N. E. 662.

The lease contains a provision to the effect that appellees represented and warranted that they were the owners in fee simple of the premises described in the lease at the time of its execution. On January 15, 1909, appellees executed to the Aetna Life Insurance Company a mortgage on a portion of the premises described in the lease and that mortgage had not been paid in full at the time the lease was made. The undisputed evidence, however, shows that appellant was fully informed in regard to the existence of that mortgage and he stated to appellees that it was all right and could be taken care of in case he elected to purchase the land. The mortgage was later released and appellant is in no position to complain in that regard. The lease was filed for record in the recorder’s office on September 27, 1920. On January 2, 1924, appellees executed another mortgage to the Federal Land Bank. That mortgage was subject to the lease and appellant’s rights thereunder and was no defense in this case.

Appellant is in error in Ms contention that there is no proof that appellees owned the real estate. He stipulated on the trial that appellees were the owners in fee subject to the question of that fee being affected by the mortgages aforesaid. We find no reversible error in the record and the judgment is affirmed.

Affirmed.


text:
    George Sneed, Appellee, v. Charles V. Parker, Appellant.
    Opinion filed June 4, 1931.
    Miley & Combe and Scerial Thompson, for appellant.
    D. F. Rumsey, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In 1921, appellee was a tenant in possession of 20 or 25 acres of land upon which he had raised a crop of corn. In September of that year, appellant purchased the land and procured a deed from the landlord. There can be no question but that appellee was entitled to his share of the crop of corn. When he started to gather the corn appellant procured an injunction, gathered the corn and converted it to his own use. Some time later, and long before the statute of limitations had run; appellant told his employee, Robert Gross, to go to the courthouse and see appellee and see if he could not settle with appellee for the corn, pay him for it, get it out of the way, or words to that effect. It is quite evident that Mr. Gross would have paid appellee for the corn at that time if he had then had the weights. It was then agreed that Mr. Gross would get the weights and take them to the office of the attorney for appellee so that the matter could be settled the next morning. In the meantime appellant talked to Mr. Gross and suggested that there was a line dispute between him and appellee and that Mr. Gross should also try to settle that matter at the same time. No settlement was reached but we think the evidence shows that there was no controversy then existing between the parties as to appellant’s liability for the corn.

Appellee testified that on several occasions he spoke to appellant about the matter and that appellant promised to pay him for the corn. After the statute had run appellee asked appellant when he was going to settle and pay him for that corn and appellant said that he would be ready to settle any day after Monday. An unqualified admission that the debt was due and unpaid, accompanied by nothing said or done to rebut the presumption of a promise to pay it, is sufficient to revive the debt against the statute of limitations. West Publishing Co. v. Lasley, 165 Ill. App. 256; Herdien v. Jones, 202 Ill. App. 172.

In our opinion the evidence was sufficient to show an unqualified admission that the debt was. due and unpaid, and there was nothing said or done to repute the presumption of a promise to pay it. There was no error in the giving or refusing of instructions and the judgment is affirmed.

Affirmed.


text:
    Motor Acceptance, Inc., Appellant, v. James E. Newton and L. Hughes, Appellees.
    Opinion filed June 4, 1931.
    Frank E. Doyle, for appellant.
    Ben M. Creamer, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On December 14, 1929, appellee, James E. Newton, purchased an automobile from the Harding Motor Co., under a conditional sale contract. On the same day appellant purchased the contract and note. On February 1, 1930, the first instalment became due and the purchaser failed to pay the same. Under' the terms of the contract appellant then became entitled to the immediate possession of the car. On February 14, 1930, Newton delivered the car to appellee L. Hughes, and requested Hughes to make repairs, which he did, to the amount of $50. Appellant didn’t know that the car had been delivered to Hughes for repairs and did not authorize Hughes to make repairs.

By reason of the premises Hughes claimed he was entitled to a lien on the car under section 1 of the Garage Keeper’s Lien Act, Cahill’s St. ch. 82, ¶ 45, and that he had the right to retain possession thereof until his lien was paid. Appellant sued out a writ of replevin and procured the possession of the car. A jury was waived and the court found that Hughes had a lien upon the car for $50 which was prior to the fights of appellant under its conditional sale contract. The court entered an order giving appellant 10 days within which to pay Hughes the $50 or to return the car, and if it failed to make such payment it was ordered that a writ of retorno habendo should issue.

The writer of this opinion, as circuit judge, decided this identical question in favor of the holder of the conditional sale contract, and the judgment was affirmed. Standard Motors Securities Corp. v. Yates Co., 257 Ill. App. 394. We are of the opinion that if section 1 of the Garage Keeper’s Lien Act, Cahill’s St. ch. 82, ¶ 45, should be construed as contended for by appellees, the Act would be unconstitutional.'

The rights of a vendor under a conditional sale contract are no longer subject to claims of a judgment creditor or purchaser without notice unless the vendor is barred by his conduct. The mere fact that the vendor permits the vendee to have possession of the property does not estop him from recovering the same. Sherer-Gillett Co. v. Long, 318 Ill. 432. Hughes has a lien upon the car for $50 but that lien is subsequent to the rights of appellant. At the time this suit was begun and at the time of the trial appellant was entitled to the possession of the car. If Hughes desires to protect his lien he must pay appellant’s claim against the car. Ehrlich v. Chappie, 311 Ill. 467.

The judgment is reversed and cause remanded with directions to enter judgment in favor,,of appellant in accordance with the views herein expressed.

Reversed and remanded with directions.


text:
    John Hurzon, Administrator of the Estate of John Hurzon, Jr., Deceased, Appellant, v. Alex Schmitz, Appellee.

      Opinion filed June 4, 1931.
    Geers & Geers, for appellant.
    Wesley Lueders, E. W. Griffith and Frank C. Smith, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On August 2, 1930, appellee .was driving his automobile upon the State Hard Road Route 4 and at Benld, Illinois, his car struck and killed John Hurzon, Jr., a boy about seven and a half years of age. This suit was brought to recover for the death of the child. The declaration contained two counts charging ordinary negligence and a third count charging wanton and wilful negligence. The trial resulted in a verdict and judgment in favor of appellee.

Appellant insists that the court erred in giving appellee’s third, fifth, seventh and ninth given instructions. The third instruction informed the jury that in order for appellant to recover damages he must establish by the preponderance, or greater weight of the evidence, that the deceased just prior to and at the time of the collision was in the exercise of due care and caution for his own safety, and that appellee carelessly and negligently drove and managed his automobile and that such negligence was the proximate cause of the death of the child. In view of the third count of the declaration which charged wilful and wanton negligence this instruction was clearly erroneous. Under that count negligence would be no defense.

The instruction is erroneous for another reason. It informed the jury that the plaintiff in order to recover must establish certain facts. In a civil case a plaintiff is entitled to recover if the evidence creates probabilities in his favor, — that is, that the weight of the evidence inclines to his side. Crabtree v. Reed, 50 Ill. 206. A plaintiff is not required to establish any elements essential to a recovery. McMasters v. Grand Trunk Ry. Co., 155 Ill. App. 648.

The word “establish” ordinarily means to settle finally, to fix unalterably. It is not necessary in a civil action that any fact should be established — that is, settled certainly, or fixed permanently — which may have been uncertain, doubtful or disputed before. Eberhardt v. Sanger, 51 Wis. 72, 79, 8 N. W. 111; Endowment Rank v. Steele, 107 Tenn. 1, 63 S. W. 1126; International & G. N. R. Co. v. Duncan, 55 Tex. Civ. App. 440, 121 S. W. 362; Van Geem v. Cisco Oil Mill (Tex. Civ. App.), 152 S. W. 1108.

The instruction placed a higher burden upon appellant than the law required. It was very much like telling the jury that appellant was required to prove the facts stated to the satisfaction of the jury or beyond a reasonable doubt. Instructions requiring a plaintiff: to prove his case by a clear preponderance of the evidence, to produce evidence to satisfy the jury, or to prove certain facts to the satisfaction of the jury, have been frequently condemned. Crabtree v. Reed, 50 Ill. 206; Rolfe v. Rich, 149 Ill. 436; Sonnemann v. Mertz, 221 Ill. 362; Teter v. Spooner, 305 Ill. 198. Appellee’s second instruction was erroneous for the same reason but no complaint has been made in regard thereto.

Appellee’s fifth instruction is erroneous as it directed a verdict and required appellant to prove that the deceased was in the exercise of due care and caution for his own safety. The instruction was not applicable to the third count of the declaration. The seventh instruction informed the jury that when it is said in the instructions that the deceased must be in the exercise of due care and caution for his own safety, it is meant that he will be expected to exercise that discretion and intelligence in protecting himself that would be expected of an average child of his age under like or similar circumstances, etc. The instruction is erroneous because it leaves out of consideration the child’s experience. Lake Erie & W. R. Co. v. Klinkrath, 227 Ill. 439; Fowler v. Chicago & E. I. R. Co., 234 Ill. 619. The law is clearly established by the great weight of authority thát between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must'be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142-150. The instruction also’informed the jury that if the deceased was not in the exercise of due care and caution it would be the duty of the jury to find the defendant not guilty, thus ignoring the third count of the declaration. The ninth instruction is erroneous for the same reason.

Appellee insists that his instructions were proper and that if appellant desired instructions relative to the third count of the declaration it was his duty to present them. If a proper instruction had been given on behalf of appellant it would not cure the error in appellee’s instructions. The jury in such a case would have conflicting instructions and they would have to decide for themselves as to the law applicable to the case.

The evidence on behalf of appellant was to the effect that appellee approached the intersection and passed over the same at a speed of not less than 50 miles an hour. There were filling stations on three corners of the intersection and appellee did not see the child until after the collision. There is some evidence on behalf of appellee to the effect that his car was hot going more than 25 or 30 miles an hour. A much larger number of witnesses testified on behalf of appellant that the speed was 50 miles an hour or more.

Where the driver of a motor vehicle is obeying all the requirements of the law and all the regulations for operating his machine, he is not, as a rule, liable for injuries received by a child who darts in front of the machine so suddenly that the driver cannot stop or otherwise avoid injuring the child; but if one is running his automobile at a speed in excess of the statutory limit or at an unreasonable or dangerous speed, he cannot escape liability because the child who is injured ran in front of the automobile so suddenly that the accident was unavoidable. Morrison v. Flowers, 308 Ill. 189.

Because of error in the instructions given on behalf of appellee, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    L. B. Maxwell, Appellee, v. The Eureka Mutual Benefit Corporation, Appellant.
    Opinion filed June 4, 1931.
    John J. Baker and Wheeler & Oehmke, for appellant.
    Jonas & Branson, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The Eureka Mutual Benefit Corporation issued a certificate of insurance to James Maxwell on September 11, 1925, in which appellee, a son of the insured, was named as beneficiary. The insurer was incorporated on May 25, 1925, under section 29 of the Corporation Act of 1872, Cahill’s St. 1925, ch. 32, ¶ 159. In 1927 that statute was so amended that the insurer could only retain its corporate existence for six months after July 1, 1927, for the sole purpose of winding up its business or reincorporating under some Act, the enforcement of which would come within the jurisdiction of the department of trade and commerce. In 1927, the legislature passed another Act for the incorporation of Mutual Benefit Associations, Cahill’s St. ch. 73, ¶ 435 (1) et seq., under which the insurer was authorized to reincorporate. It did reincorporate, under the same name, on August 29, 1927.

On May 8, 1928, the officers of the reincorporated association procured a charter for a new corporation under the name “The Eureka Mutual Benefit Corporation # 2. ” On May 24, 1928, the insured made application to The Eureka Mutual Benefit Corporation for a certificate of insurance and on the same day a certificate was issued to him for the sum of $800. We think it fair to assume that the officers of the association, in the organization of the new corporation, were seeking to reduce the liability and to procure contracts of insurance more favorable to the association.

The insured died April 25,1929, and appellee sued to recover on the thousand-dollar certificate of insurance. The suit was brought against appellant and not against The Eureka Mutual Benefit Corporation # 2. Appellant filed the general issue with notice of special matters of defense. The case was tried before the court, without a jury, and appellee recovered a judgment for $800.

Appellant tried the case' as if it were sued as The Eureka Mutual Benefit Corporation # 2 and contends that as it was not organized until May 8, 1928, it could not be held liable for the amount of the policy issued on September 11, 1925. Appellant claims that as a new certificate was issued to the insured on May 24, 1928, on his application, there was no other contract of insurance; that the insured in that application made false answers as to the condition of his health and that by reason thereof appellee was not entitled to recover more than $160. No claim was made that the insured made false answers in his application for the thousand-dollar certificate.

The reincorporated association became liable upon all outstanding certificates of insurance. Jones v. Loaleen Mut. Benefit Ass’n, 255 Ill. App. 170. Appellant argues that the declaration is so defective that it will not support the judgment. That question could have been presented to this court by a proper assignment of error even though a demurrer to the declaration was overruled and appellant had pleaded to the merits. Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164; People v. Wallace, 316 Ill. 120-122. No such error has been assigned and the question as to the sufficiency of the declaration to support the judgment is not open for our consideration.

Appellant contends that the reincorporated association went out of business on May 1, 1928, and that it had no members after that date. It is contended that the said association was abandoned at that time. The undisputed evidence shows that while new forms of applications and certificates were prepared, at or about that time, the name of the association printed therein was that of The Eureka Mutual Benefit Corporation, and not the name of the alleged new corporation formed May 8, 1928. There is really no evidence, worthy of mention, to the effect that the name of the new corporation was ever used in the transaction, of any business. A corporation has no right or power of itself to change or alter the name originally selected by it without recourse to such formal proceedings as are prescribed by law. And it has been held that the unauthorized change of name is an abandonment, not only of the corporate name, but of the corporation itself. The identity of the creature authorized by the statute to do business is destroyed. 7 R. C. L. 128.

After the new charter was granted death and expense calls were made in the name of the reincorporated association and not in the name of the new corporation. In our opinion the new corporation was abandoned and never really existed otherwise than as an unaccepted charter. It was simply a paper existence. Appellant insists that to be consistent the trial court should have rendered judgment for $1,000 instead of $800. We agree with this contention and the judgment will be reversed and a judgment will be rendered in this court in favor of appellee and against appellant in the sum of $1,100, which includes interest. Appellant will also pay the costs in this court and in the trial court.

Judgment reversed and judgment entered here.


author: Mr. Justice Fulton

text:
    Mary Arnold, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.

      Opinion filed June 4, 1931.
    R. Y. G-ustin, for plaintiff in error.
    H. C. Lindauer, State’s Attorney, and John T. Thomas, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.

On the 6th day of December, 1930, an information was filed in the county court of St. Clair county, charging the plaintiff in error, Mary Arnold, with operating a house of ill fame. She was arrested on December 12. On December 15 she called at the office of the State’s attorney and inquired about the terms and conditions under which he would be willing to dispose of her case.

He informed the defendant that if she would enter a plea of guilty he would recommend to the court that she be fined $100 and costs. On the following day she again called upon the State’s attorney and informed him that she was ready to plead guilty and dispose of the case. They immediately appeared in the county court and upon inquiry by the court, the defendant stated that she desired to enter a plea of guilty. The court then asked the State’s attorney what the statutory penalty was and in the presence of the defendant was told that the statute provided for a fine or imprisonment in the county jail, or both, and further stated to the court that he would recommend a fine of $100 and costs. The defendant was advised by the court as to what the consequences of her plea might be, but she again stated that she desired to plead guilty, whereupon the court announced that the punishment would be $100 and 30 days in the county jail.

The defendant then employed counsel and the following morning, December 17, filed a motion to vacate the judgment and sentence and for permission to withdraw her plea of guilty. The motion was verified by the affidavit of defendant and set out in substance the agreement with the State’s attorney; that if she had not believed that the agreement would be accepted and followed by the court, she would not have entered such a plea; that the court prior to the announcement of the sentence had not fully explained to her the consequences of entering a plea of guilty, and that neither the State’s attorney, nor the court, ever mentioned a possible jail sentence to her before sentence was imposed, nor did the court inform her that she was entitled to be represented by counsel.

The motion was denied and overruled by the court, a motion to suspend the issuance of mittimus was granted and this writ of error follows.

It is the contention of plaintiff in error that the action of the trial court in denying her motion for leave to withdraw the plea of guilty was an abuse of discretion, relying upon the rule of law which states: “Where it clearly appears that a defendant pleaded guilty under a well founded misapprehension of the consequences of such plea, the trial court should set aside the judgment and sentence and allow the defendant to withdraw such plea and to enter a plea of not guilty.”- In support of her contention, plaintiff in error relies chiefly on the case of People v. Lavendowski, 326 Ill. 173, and the case of People v. Byzon, 267 Ill. 498. The facts in those cases set up quite a different situation from the instant case. In the Lavendowshi case the defendant was arrested on the same day an information was filed charging him with possessing and also manufacturing intoxicating liquor.' He was unable to speak English, was heard through an interpreter and plead guilty. The case was continued until the next day and before judgment was entered on the plea of guilty, counsel appeared for the defendant and filed a written motion asking for leave to withdraw the plea of guilty, setting up reasons in behalf of the motion and offering to introduce evidence in further support of the same. The court held that under all the circumstances the evidence offered in support of the motion should have been heard by the court below before denying the motion.

In the Byzon case the motion was made to vacate sentence and for leave to withdraw the plea of guilty, not only because he had entered pleas of guilty under a mistake or misapprehension of the consequences thereof, because a police officer had told him if he would plead guilty he would be placed on probation, but also setting up facts which he insisted would prove him not guilty of the crime charged.

In the present case the plaintiff in error sought out the State’s attorney and attempted to settle her case outside of court. When the court imposed heavier sentence than the amount recommended by the State’s attorney, she was dissatisfied. In her motion she does not set up any facts that would show her to be innocent of the crime charged, and we do not think there was any abuse of discretion by the trial court in denying the motion.

The Supreme Court of our State has passed upon the questions raised by plaintiff in error adversely to her contention.

The rule that “the withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be subserved by permitting the plea of not guilty in its stead ’ ’ has no application to cases where the defendant, fully understanding the nature of the proceedings before him, seeks to withdraw his plea of guilty because the punishment meted out is heavier then he had supposed it would be. People v. Lavendowski, 326 Ill. 173, 177.

A recital that the defendant was fully advised of the effect of his plea is sufficient unless it is made to appear from the record that the court erroneously or insufficiently informed the defendant of the effect of his plea. People v. Blumberg, 314 Ill. 567.

The defendant cannot contradict the record by affidavit. People v. Fulimon, 308 Ill. 235.

For the reasons assigned the judgment of the lower court will be affirmed.

Affirmed.


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    In re Estate of Daniel Aldag, Sr., Deceased.

      Opinion filed June 4, 1931.
    Rehearing denied July 16, 1931.
    Johnston & Murphy, for appellants.
    House & House, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court. ,

Ernest Aldag, Louis Aldag and Daniel Aldag were named as executors of the will of their father, Daniel Aldag’, Sr., deceased, and duly qualified as such in the county court of Washington county, Illinois. They are the appellees and for the purposes of this appeal will be designated executors. They were sons of the decedent and proceeded to administer upon the estate of their father. On December 4, 1929, they filed a report of their acts and doings as such executors from the date of appointment.

On December 13, 1929, Henry Aldag, Mary Hasten, Emma Poeggenmoeller and Anna Brandhorst, the other children of decedent, filed written objections to the confirmation of said report. They are the appellants, but following the suggestion made by their connsel, are designated as objectors in this appeal. On April 22, 1930, the county court of Washington county sustained certain objections and overruled the others. Both parties prosecuted appeals to the circuit court and on November 8, 1930, the cause was tried de novo before the presiding judge of that court, who overruled all of the objections to the report, except that he reduced the amount of commissions to be allowed executors from $2,072.12 to $1,500. From that order this appeal was taken and three objections relied upon as grounds for reversing the decree of the circuit court, viz.:

(1) Failure of executors to account for certain rents. (2) Improper sale of bank stock. (3) Allowance of executors’ commissions.

The record discloses that prior to his death, Daniel Aldag, Sr.,- conveyed certain farm lands to each of the three executors, and to his son Henry Aldag, reserving, however, the use, income and control of the lands during the lifetime of the decedent and of his wife, Louise Aldag. Daniel Aldag, Sr., died on August 10, 1928, and his wife, Louise, died 10 days later. There is some dispute as to whether the rental year began on March first of each year or June first, the date of the deeds. While the date and delivery of the deeds gave the grantees the right of immediate possession, it did not necessarily control the rental periods and we believe the evidence fairly shows the rental year ran from March first to March first. The executors admit they did not pay rent for the year beginning March 1, 1927 to March 1, 1928, but introduce proof that the rental was offered to the father and he waived the payment and told the boys he would not take any rent from them for that year, because the crops were so poor. The trial court had the opportunity of seeing and hearing the witnesses of both parties on this branch of the controversy, and his finding that the father had given the rental for that year to his sons, is fully supported by competent testimony. The intention of the father to give the rent of one year to the sons was definitely expressed to other witnesses and the acceptance by the boys can be clearly determined from the proofs and the conduct of the parties towards the transaction.

The sale of 13 shares of stock of the Irvington State Bank at $150 per share is the subject of further objection. Emma Poeggenmoeller and .Mary Kasten, two of the objectors, were bequeathed the sum of $5,000 each, under the will. Emma wanted her legacy paid and filed a petition for the payment of same in the county court of Washington county, which was later heard and dismissed. While at the courthouse on this hearing the two daughters offered to pay $170 per share for the bank stock, provided their legacies were paid in full at that time. The executors refused the offer because they did not have enough cash on hand to pay off the bequests. Later on they secured an order of the county court authorizing them to sell the.personal property of the estate at private sale.

Objectors contend that the order so obtained was void and of no effect, because the language of the tenth clause of testator’s will demanded that the bank stock be delivered in kind. We believe that section 91 of the Administration Act, Cahill’s Rev. St. ch. 3, ¶ 92, fully authorizes the sale of the stock at private sale, and that the order was not in direct violation of the terms of the will. The offer to buy the stock on the part of the two sisters was conditional and one that the executors had the right to refuse. The order of the county court approving the sale of the bank stock was fully warranted.

The question of'the allowance of executors’ commissions was considered by the court and the amount reduced to the sum of $1,500. The report shows the collection of nearly $35,000 in assets by the executors, and while some of the items were for the real estate devised at a certain figure to the sons, and other items were perhaps collected in without any great effort, the" record shows the executors to have performed various duties, in connection with the collection, preservation and management of the assets, and the sum allowed for commissions does not appear to be exorbitant or excessive. At least, this court could not say that there was any manifest abuse of discretion on the part of the trial court in fixing the fees, and therefore the amount allowed will not be disturbed on this appeal. In re Estate of Mertz, 246 Ill. App. 283.

Finding no substantial error in the findings of the trial court, the order and decree of the circuit court of Washington county will-be affirmed.

Affirmed.


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    Continental Life Insurance Company, Appellant, v. Martha L. Connole, Administratrix of the Estate of Patrick Garrity, Deceased, Appellee.
    Opinion filed June 4, 1931.

      Charles G. Revelle and Thomas P. Moore, for appellant.
    Philip G. Listeman, for appellee; Keeps & Listeman, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

Appellee, as the administratrix of the estate of Patrick Garrity, deceased, brought suit upon an accident insurance policy to recover for the accidental death of Patrick Garrity.

The declaration consisted of one count and set forth the insurance policy in haec verba. The policy undertook to insure the deceased against “death or disability” resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means and sustained by the insured in the following manner:

“Part One (c). By the wrecking or disabling of any private horse-drawn vehicle or motor-driven car in which the insured is riding or driving, or by being accidentally thrown from such vehicle or car. ’ ’ ■

The declaration further charged that the “said Patrick Garrity, insured, came to his death directly, independently and exclusively of all other causes as a result of bodily injuries effected solely through external, violent and accidental means, to wit, that while ■he was riding on a private horse-drawn vehicle his head came in contact with a beam or other solid structure under which the said wagon was being driven, and he was jerked, pulled and thrown from said wagon in such a manner that he received injuries causing his death.”

It was stipulated by the parties that the policy was in full force and effect at the time of the accident; that proof of death was made by the plaintiff within the time fixed by the policy and that decedent came to his death as the result of an external, bodily injury effected solely through external violence and external means.

The testimony was short and simple and there is no dispute as to the facts. The evidence of two eyewitnesses shows that the. deceased, Patrick Garrity, met his death while driving a wagon belonging to the National Stockyards Company of East St. Louis down a driveway or alley, over which there were rafters or beams supporting a dock or runway for the use of stock. ' Garrity was riding on the foot rest of the wagon, because in passing under the runway the top of the wagon came very close to the rafters or beams, and it was customary for the drivers of these wagons to duck their heads in avoiding the beam as they passed under. As the deceased drove under the dock, his head in some manner struck the beam and he was caught between the beam and the top of the wagon, thereby crushing his skull and inflicting other injuries from which he died in a very short time. The horses almost immediately stopped and the two witnesses who saw the accident rushed to the spot and while one of them backed up the horses so as to release the body of the insured, the other climbed upon the wagon and helped to lift the body down. Insured was either dead or dying at that time. The witness nearest the wagon states that decedent when caught between the beam and the top of the wagon was lifted 10 or 12 inches off from the seat and was hanging in a reclining position, with his legs dangling against the front of the footboard. When the horses were backed up the body slid back onto the foot rest in a sitting position.

At the conclusion of the plaintiff’s evidence, and again at the conclusion of all the evidence, the defendant offered written motions for a directed verdict, which motions were denied by the trial court.

The trial resulted in a verdict and judgment in favor of the plaintiff for $2,800, and interest, from which judgment this appeal has been taken to this court.

It is urged by appellant that the judgment is not supported by any evidence legally tending to show that the insured met his death from “being accidentally thrown from” the wagon in which he was riding. On the other hand plaintiff contends that the uncontradicted proof shows that the body of insured was pulled, jerked and removed from the place on which it was resting prior to the accident.”

The language of the witness Dickhaus was that when insured’s.head, struck the beam “he was raised off the'seat, to a certain extent, pulled off.” When asked how high he was pulled off the seat the witness said, “Not far,” and later “10 or 12 inches, I guess he was raised.”

It seems clear to us that the deceased did not come to his death from being accidentally thrown from the wagon, but because his head came in contact with the beam which caught and crushed his head between the beam and the top of the wagon. While plaintiff makes light of the cases of Lavender v. Continental Life Ins. Co., 143 Wash. 201, 253 Pac. 595, and Wright v. Continental Life Ins. Co., 146 Wash. 665, 264 Pac. 410, we believe the facts and the law contained in those cases are applicable to facts and the law of this case.

For the reasons above stated, it is the judgment of this court that the trial court should have directed a verdict for the defendant at the close of the plaintiff’s evidence, and the judgment of that court will be reversed, with instructions to the clerk to include the following finding of fact in the judgment, viz.: The court finds that the insured was not killed by any cause for which be was insured.

Reversed with finding of fact.


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    George W. Rinck, Appellant, v. United States Rubber Company, Inc., Appellee.
    Opinion filed June 4, 1931.
    Preston K. Johnson, for appellant.
    Farmer & Klingel, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

On June 6, 1929, George A. Dunn, an individual doing business under the trade name of West End Tire Shop, being indebted to William A. Schmisseur in the amount of $13,000, executed and delivered to Schmisseur, six notes covering said indebtedness as follows: notes nos. 1 to 5, inclusive, each for the sum of $1,000, due in two, four, six, eight and ten months after date; and note no. 6 for the sum of $8,000 due one year after date. To secure these notes Dunn executed to Schmisseur his chattel mortgage for said amount of $13,000 upon the furniture, fixtures, equipment, tools and stock of tires, tubes and other merchandise located in his tire shop at Belleville, Illinois.

James Dunn, brother of George A. Dunn, signed the notes as surety and also executed the chattel mortgage, although he claims no interest in the business or the property. The mortgage provided that the mortgagors should retain possession of the property until default in the payment of the notes and for foreclosure by talcing possession and sale. No payments were made on the notes, and on May 20, 1930, Schmisseur attempted to take possession of the mortgaged goods, and commenced foreclosure by posting notice of sale on the front window of the shop and placed James W. Dunn, who signed the notes and was one of the mortgagors, in possession as custodian.

The sale was advertised for May 26, 1930, at two o’clock, but at that time announcement was made that the sale was postponed until May 31, and on that day the goods and chattels were sold to appellant. On May 21, 1930, the day after Schmisseur posted his notice of sale, a judgment was entered by the circuit court of St. Clair county in favor of the appellee and against George E. Dunn, doing business as the West End Tire Shop. On the same day an execution was issued on the judgment and delivered to the sheriff who made a levy upon the goods and chattels in question, took possession of, and placed a custodian in charge. After sale was had under the chattel mortgage on May 31, 1930, the appellant as purchaser at said sale, on the same day, filed his written claim with the sheriff, upon which this action is based. A trial of the right of property was had before the court, a jury having been • waived, and the court found the issues in favor of the appellee and that the property was subject to the execution and did not belong to the appellant. The appeal comes to this court on questions of law only, there being no dispute as to the facts.

The controlling question in the case is whether or not under the circumstances shown by the record, the purchaser at the mortgage sale can hold the mortgaged property as against the levy of an execution in behalf of a judgment creditor.

Counsel for appellant cites authorities showing conclusively that a chattel mortgage upon merchandise which is subject to sale in the course of business is valid, where possession is taken thereunder prior to the intervention of the rights of third parties, but the possession obtained by the mortgagee in this case, is of an entirely different character from the change of possession outlined in the cases cited.

We do not believe that the posting of the sale notice on the front window of the shop and the placing of the mortgaged goods and chattels in the custody of one of the mortgagors is such taking and retaining possession of the mortgaged property as is required by law to preserve the lien of the chattel mortgage against an execution such as was issued in this case in behalf of appellee, as a judgment creditor. Watkins v. Dunbar, 232 Ill. App. 1; Williams v. Head, 219 Ill. App. 5, and the cases therein cited.

The judgment of the county court of St. Clair county will be affirmed.

Affirmed.


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    Fred Buhrer, Plaintiff in Error, v. Anton Range et al., Defendants in Error.

      Opinion filed June 4, 1931.
    Louis Beasley and' Edward C. Zulley, for plaintiff in error.
    Walter E. Ackermann, for defendant in error Edward Swoboda; Turner & Holder, for other defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

Pursuant to a decree of the circuit court of St. Clair county, the master in chancery sold at public auction certain premises in said county. At the sale one lot was struck off and sold to one Narcise La Croix; the other lot or tract of land was struck off to Edward Swoboda upon his bid of $13,000. This was the highest and best bid received for this tract or parcel of land. At the time of the sale of the property Edward Swoboda stated that he was bidding for one Fred Buhrer. The terms of the sale were to be one-third cash and the balance of the purchase price in two equal instalments in six and twelve months respectively, after the date of sale.

The master in chancery filed his report in the circuit court of St. Clair county stating that Narcise La Croix had fully complied with the terms of his sale and paid the master in chancery for the premises struck off to him. The master further reported that Edward Swoboda and Fred Buhrer each refused to comply with the terms of the sale, or to pay any part of the purchase price for the property that had been struck off to the said Edward Swoboda. The court approved that part of the report confirming the sale of the lot to La Croix and ordered that a citation be issued for Edward Swoboda and Fred Buhrer, commanding them to appear before the court on May 6, 1929, and show cause, if any they have, why they did not comply with the terms of the sale of the property that had been sold to them by the master in chancery. On May 6, 1929, Swoboda and Buhrer appeared in court and asked to have the case continued until May 9, 1929. On May 9, 1929, the court entered an order and decree, a part of which is as follows: “It is therefore ordered, adjudged and decreed by the court that Edward Swoboda and Fred Buhrer, or either of them, comply with the terms of sale instanter; but Swoboda and Buhrer, being in court, refused to comply with the terms of said sale.” The court in the same decree then ordered a resale of said property upon the same terms and conditions as the former sale. The decree further provided that the resale of said property be at the' cost of Edward Swoboda and Fred Buhrer, and each of them; that if a deficiency resulted from said resale, between the prior sale price and the sale price appearing hereinafter reported by the master, together with the cost of such resale, etc., shall be paid by Edward Swoboda and Fred Buhrer, etc.

Pursuant to said decree and order of sale the master readvertised the property for sale and on the 29th day of June sold the premises to Alex S. Vien for the sum of $12,250. The master made his report to the court showing the sale price; also the cost of making the sale, resulting in a total deficiency of $1,105.74. The court approved the report and found that both Edward Swoboda and Fred Buhrer were liable for said deficiency. Judgment was entered against each of them for this amount. Later an execution was issued on said judgment. The defendant Fred Buhrer brings this case to this court on a writ of error to review the proceedings so far as they relate to him.

Our courts have repeatedly held that before a party can be held liable in a case of this kind it must be. shown that he made the bid for the property, or by someone authorized to do so for him, and the property was struck off to him according to such bid. It must also be shown that the bidder failed or refused to comply with the terms of the sale. This must be reported to the court and the order approved by the court.

In this case the defendant Buhrer and Swoboda were cited into court to show cause why they should not be held liable for the cost of the resale of the property. The' decree recites that the defendants appeared and evidence was heard, and that each of the defendants refused to comply with said bid. The only record of any hearing at the time of this citation is what is contained in the decree. The record does not show where there was any rule entered against either Swoboda or Buhrer to comply with the terms of the sale. The only record in regard to any rule at all is in the decree itself, which was filed on the same day of the hearing, in which it states that the court required Swoboda and Buhrer to comply with the terms of the sale instanter. In our opinion this is not in compliance with the law, that before the court can hold a defendant liable for a deficiency in a resale of property such as this, a rule of court must be entered against the defendants to show cause why they did not comply with the terms of the sale. Even treating the recital in the decree as a rule on the defendants to comply with the terms of the sale, we do not think that such a rule should be entered to have defendants comply instanter in a case of this kind. This rule is stated in the cases of Hill v. Hill, 58 Ill. 239; Thrifts v. Fritz, 101 Ill. 457; Sarpisian v. Mardirosian, 239 Ill. App. 487.

For the reason above stated the judgment is hereby reversed.

Reversed.