text:
    Ottawa Banking & Trust Company of Ottawa, Illinois, appellee, v. Anna N. Kendall, appellant.
    Gen. No. 7,565.
    Action upon promissory note. Judgment for plaintiff. Appeal from the Circuit Court of Bureau county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed July 24, 1926.
    Samuel B. Hill, James J. Conway and Josef Skinner, for appellant.
    C. A. Trimble and C. B. Chapman, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Jett

license: Public Domain

text:
    The People of the State of Illinois, defendant in error, v. Benjamin J. Barrett et al., plaintiffs in error.
    Gen. No. 7,608.
    Prosecution for conspiracy, to obtain money by false pretenses and the confidence game. Judgment of conviction. Error to the Circuit Court of Lake county; the Hon. C. C. Edwards, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 28, 1926.
    James G. Welch and James J. O’Toole, for plaintiffs in error.
    Ashbel V. Smith, State’s Attorney, for defendant in error; Sidney H. Block, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Frank Ewanicki, by Frank F. Follett, appellant, v. James C. Davis, appellee.
    Gen. No. 7,577.
    Action for personal injury. Judgment for defendant. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1925.
    Beversed and remanded.
    Opinion filed August 3, 1926.
    Behearing denied October 7, 1926.
    Butters & Butters and Howard H. Bayne, for appellant.
    Boys & Osborn, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Nora B. Prunk, appellant, v. George W. Prunk, appellee.
    Gen. No. 7,575.
    Bill for separate maintenance. Decree for complainant, who appeals from amount of award. Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1925.
    Beversed and remanded with directions.
    Opinion filed August 26, 1926.
    J. L. Spaulding, for appellant.
    Cairo A. Trimble and Perry D. Trimble, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Eugene O’Brien, appellant, v. R. P. Miner & Company, Inc., appellee.
    Gen. No. 7,586.
    Action to determine ownership of proceeds of sale of wheat. Judgment for defendant. Appeal from the Circuit Court of Knox county; the Hon. Willis E. Graham, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed August 26, 1926.
    L. E. O’Brien and Leo P. Baird, for appellant.
    L. H. Hanna, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Thomas Lammerts, plaintiff in error.
    Gen. No. 7,611.
    Prosecution for violation of Prohibition Act. Judgment of conviction. Error to the County Court of Warren county; the Hon. Clinton M. Huey, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed September 15, 1926
    Charles E. Lauder and Frederick H. Lauder, for plaintiff in error.
    Henry D. Lewis, State’s Attorney, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Henry National Bank, appellee, v. W. A. Rowe, appellant.
    Gen. No. 7,643.
    Action upon promissory note. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. George C. Hillyer, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed September 15, 1926.
    Wallace J. Black and Clyde M. West, for appellant.
    Daily, McCormick & Radley, for appellee; R. H. Radley and Emerson T. Anthony, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Charles Dickerson, appellant, v. Rachel Reed et al., appellees.
    Gen. No. 7,662.
    Bill to set aside release of mortgage and for foreclosure thereof. Decree for defendants. Appeal from the Circuit Court of Warren county; the Hon. George C. Hillyer, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed September 15, 1926.
    R. C. Hunt, for appellant.
    Erie P. Field, Charles E. Lauder and Frederick H. Lauder, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Isaac Thomason, appellee, v. Central Illinois Public Service Company, appellant.
    Gen. No. 7,645.
    Action for personal injuries. Judgment for plaintiff. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed September 18, 1926.
    Vause & Kiger, for appellant; A. F. Goodyear, of counsel.
    Dyer & Dyer and J. W. Kern, for appellee.
   Mr. Justice Jett

delivered the opinion of the- court.


text:
    Ambia School of Hickory Grove Township of Benton County, Indiana, appellant, v. Non-High School District of Iroquois County, Illinois, appellee.
    Gen. No. 7,606.
    Assumpsit for tuition of pupils living in nonhigh school district. Bill in equity to same effect. Decree for defendant. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the June term, 1925.
    Affirmed.
    Opinion filed September 25, 1926.
    A. F. Goodyear and Robert F. Goodyear, for appellant; Otto Gresham, of counsel.
    Free P. Morris, Roscoe C. South and Claude 3ST. Saum, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    School Directors of School District No. 103 in Mercer County, Illinois, et al., appellants, v. Board of Education of Community Consolidated School District No. 115 in Mercer County, Illinois, et al., appellees.
    Gen. No. 7,613.
    Bill for an accounting and for distribution of property between portions of former consolidated school district. Decree for defendant. Appeal from the Circuit Court of Mercer county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded with directions.
    Opinion filed September 25, 1926.
    Watson So Duvall, for appellants.
    Church So Mannon, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    C. A. Weigner, plaintiff in error, v. Twin City Company, defendant in error.
    Gen. No. 7,618.
    Action for damages for breach of contract. Judgment for defendant. Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April
    term, 1926.
    Affirmed.
    Opinion filed September 25, 1926.
    Clarence W. Heyl and Harry O. Heyl, for plaintiff in error.
    Jay T. Hunter, Gerald H. Page and Richard J. Kavanagh, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Willard Martin Jones, plaintiff in error, v. North America Benefit Corporation of Springfield, Illinois, defendant in error.
    Gen. No. 7,623.
    Action upon policy of life insurance. Judgment for plaintiff who sues out writ of error. Error to the Circuit Court of Lee county; the Hon. Harry Edwards, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed September 25, 1926.
    Rehearing denied January 13, 1927.
    H. A. Brooks, for plaintiff in error.
    E. H. Brewster and W. H. Winn, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Ruth E. Stattler, appellee, v. Wilbur P. Stattler, appellant. Ruth E. Stattler, defendant in error, v. Wilbur P. Stattler, plaintiff in error.
    Gen. No. 7,633.
    Gen. No. 7,628.
    Bill for divorce. Decree for complainant. Appeal from Circuit Court of Carroll county in Gen. No. 7,633; error to the Circuit Court of Garroll county in Gen. No. 7,628; the Hon. William J. Emmerson, Judge, presiding, in Gen. No. 7,633; the Hon. Harry E. Edwards, Judge, presiding, in Gen. No. 7,628. Heard in this court at the April term, 1926.
    Decree affirmed and order denying petition to vacate decree affirmed.
    Opinion filed September 25, 1926.
    Sims, Welch, Godman So Stransky, for appellant and plaintiff in error; F. J. Stransky, of counsel.
    Chas. E. Stuart, for appellee and defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Ernest F. Swab, appellee, v. Charles W. Gettle, appellant.
    Gen. No. 7,631.
    Bill for contribution and other relief. Decree for complainant. Appeal from the Circuit Court of Whiteside county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed September 25, 1926.
    Rehearing denied January 21, 1927.
    Ward, Ward & Ward, for appellant; A. J. Scheineman, of counsel.
    Van Sant & Besse and Jacob Cantlin, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Abraham S. Berg and David Ansin, copartners, trading as Royal Textile Company, appellants, v. J. D. Annenberg and M. R. Patterson, copartners, trading as Annipatt Garment Company, appellees.
    Gen. No. 7,654.
    Action for goods sold and delivered. Judgment for defendants. Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed October 5, 1926.
    Fred B. Shearer, for appellants; Charles B. Dickerson, of counsel.
    Samuel J. Stephens, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Mamie Fleet, administratrix of the estate of Moses Fleet, deceased, appellee, v. Illinois Central Railroad Company, appellant.
    Gen. No. 7,652.
    Action for personal injury. Judgment for plaintiff. Appeal from the Circuit Court of Kafikakee county; the Hon. Arthur W. DeSelm, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed October 5, 1926.
    Hunter & Minor, for appellant; John G. Drennan, of counsel.
    Frank J. Burns and James T. Burns, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Anna B. Alguire, appellee, v. Elliot Biester and Channing T. Biester, appellants.
    Gen. No. 7,599.
    Action upon promissory note. Judgment for plaintiff. Appeal from the Circuit Court of Boone county; the Hon. Edward D. Shurtleff, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed October 8, 1926.
    Rehearing denied December 20, 1926.
    Wm. Biester, for appellants.
    Alexander J. Strom, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Knights of the Ku Klux Klan, Inc., appellee, v. Godfrey C. Berg and Charles N. Wallace, appellants.
    Gen. No. 7,601.
    Assumpsit for money had and received and upon an account stated. Judgment for plaintiff. Appeal from the County Court of Grundy county; the Hon. William E. Viner, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed October 20, 1926.
    Warren E. Bull, for appellants.
    C. D. Fithian, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    James White, defendant in error, v. Roland R. Stafford and Edward C. Broehl, plaintiffs in error.
    Gen. No. 7,911.
    Action to recover commission for sale of real estate. Judgment for plaintiff. Error to the Circuit Court of Logan county; the Hon. Frank Lindley, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    Alonzo Hoff and Harold F. Trapp, for plaintiffs in error.
    Murphy &> Wright, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    In re petition of George G. Robertson to probate the will of O. B. Grant, deceased, and for appointment of George G. Robertson, executor. Bertha Yager, objector, appellee, v. George G. Robertson, petitioner, appellant.
    Gen. No. 7,933.
    Application for probate of will. Probate denied. Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    H. R. Suavely, for appellant.
    S. M. Seholfield and Parker & Cox, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Richard H. Johnson, appellee, v. Illinois Power Company, appellant.
    Gen. No. 7,938.
    Action for personal injuries and property damage due to negligence. Judgment for plaintiff. Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    Philip Barton Warren, Albert C. Schlipf, Walter MeC. Allen, Henry A. Converse and William L. Patton, for appellant; Albert C. Schlipf, of counsel.
    John G. Friedmeyer and A. M. Fitzgerald, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    A. F. Loehr et al., appellants, v. P. H. Shuttleworth, appellee.
    Gen. No. 7,942.
    Action for rent. Judgment for defendant. Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed April 15, 1926.
    Murphy & Hemphill, for appellants.
    Jesse Peebles and Don M. Peebles, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Crow

text:
    Thomas Morris, appellee, v. Fort Dearborn Casualty Underwriters, appellant.
    Gen. No. 7,939.
    Assumpsit upon policy insuring against loss by theft of automobile. Judgment for plaintiff. Appeal from the Circuit Court of Fulton county; the Hon. Willis F. Graham, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel.
    Burnett M. Chiperfield, Olaude E. Chiperfield and Robert B. Chiperfield, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    Mary Bryden, appellee, v. Robert H. Wolfley, appellant.
    Gen. No. 7,948.
    Bill to establish equitable lien upon certain premises. Lien decreed. Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    John P. Madden, for appellant.
    L. M. Harlan and Jesse Peebles, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    Michael E. Bates, appellee, v. A. B. Zybell and Cory H. Zybell, appellants.
    Gen. No. 7,940.
    Action for fraud and deceit. Judgment for plaintiff. Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Herrick & Herrick and Lynn S. Corbly, for appellants.
    Dobbins & Dobbins, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Elsie L. Bennett, appellant, v. Ralph S. Bennett et al., appellees.
    Gen. No. 7,957.
    Bill for divorce and to have conveyance set aside. Decree for defendants. Appeal from the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed July 1, 1926.
    Leslie J. Taylor, for appellant. H. B. Hershey and C. J. Vogelsang, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Jesse Myers, plaintiff in error.
    Gen. No. 7,958.
    Prosecution for illegally transporting intoxicating liquor and for driving motor vehicle while intoxicated. Judgment of conviction. Error to the County Court of Clark county; the Hon. H. M. Janney, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed July 1, 1926.
    Wilber H. Hickman, for plaintiff in error.
    Everett Connelly, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Benjamin F. Trimble et al., appellees, v. Spurgeon Marney et al., appellants.
    Gen. No. 7,858.
    Probate of will. Probate denied. Appeal from the Circuit Court of Adams county; the Hon. Fred G. Wolfe, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    Roy D. Johnson and Marks Alexander, for appellants.
    Wilson So iSehmiedeskamp, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    W. H. Rohrer, complainant, and George L. Kimber, receiver, appellants, v. Fred E. Deatherage et al., respondents. E. B. Coe, appellee.
    Gen. No. 7,917.
    Mortgage foreclosure. Decree for respondents. Appeal from the Circuit Court of Morgan county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    John J. Reeve and William T. Wilson, for appellants.
    Carl E. Robinson and Bellatti, Bellatti So Moriarty, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    W. E. Hilton, plaintiff in error, v. Henry A. Wright, defendant in error.
    Gen. No. 7,956.
    Action upon promissory note. Judgment for defendant. Error to the Circuit Court of Morgan county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    William E. Thomson, for plaintiff in error.
    William N. Hairgrove, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Minnie Johnson, appellee, v. J. W. Blakesmith, appellant.
    Gen. No. 7,975.
    Action for value of care, board and nurture of defendant’s minor child. Judgment for plaintiff. Appeal from the City Court of Canton; the Hon. Fred H. Snyder, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Taff So Putman, for appellant.
    Jos. R. Martin, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Faber-Musser Company, appellant, v. William E. Dee Company, appellee.
    Gen. No. 7,981.
    Action for breach of contract. Judgment for defendant. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Barnett, Wilson & Tichenor and Robert H. Patton, for appellant.
    William L. Patton and John M. Quinlan, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Peter Matvey et al., appellees, v. The City of Mt. Olive, appellant.
    Gen. No. 7,984.
    Action for pollution of waters. Judgment for plaintiffs. Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    L. M. Harlan and Jesse Peebles, for appellant. 0C. W. Burton and Vaughn & Kevins, for appellees.
    C. W. Burton and Vaughn & Kevins, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Laura Stubbs, appellee, v. School Directors of District No. 51, in County of Adams and State of Illinois, appellant.
    Gen. No. 7,992.
    Action for wrongful discharge of employee. Judgment for plaintiff. Appeal from the Circuit Court of Adams county; the Hon. Fred G. Wolfe, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    C. H. Wood and Hartzell, Cavanagh & Martin, for appellant.
    S. A. Hubbard and H. W. Lewis, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Edgar H. Buckley and Clara M. Buckley, appellants, v. Thomas M. Kilbride, Ridgely Farmers State Bank and O. E. Lemon, sheriff, appellees.
    Gen. No. 7,995.
    Bill to enjoin enforcement of judgment. Decree for respondents. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    William L. Patton, for appellants.
    Edward C. Knotts, for Ridgely Farmers State Bank, appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    The David Jones Company, appellant, v. F. F. Bates, appellee.
    Gen. No. 7,998.
    Action upon promissory notes. Judgment for defendant. Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed July 1, 1926.
    Murphy & Hemphill, for appellant.
    Vaughn & Kevins, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    John Cleland, by John F. Cleland, appellee, v. Robert B. Eagle, appellant.
    Gen. No. 8,007.
    Action for personal injury. Judgment for plaintiff. Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Part-low, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Roger E. Chapin and Graham & Dysert, for appellant; Walter V. Dysert, of counsel.
    Oliver D. Mann, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Presiding Justice Boggs

text:
    Fourth District.
    Joseph Kensche, appellee, v. J. B. Margolies Wholesale Grocery Company, appellant.
    Dismissal of appeal from judgment for plaintiff in action in justice court. Order overruling motion to set aside order of dismissal. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded.
    Opinion filed July 9, 1926.
    T. M. Webb, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Rhodes-Burford Furniture Company, appellant, v. Herman Hanson, appellee.
    Malicious prosecution. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded.
    Opinion filed July 9, 1926.
    Whitnel & Browning, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Sarah V. Grissom, appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, appellant.
    Assumpsit upon benefit certificate. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. Silas Cook and Hon. William E. Borders, Judges, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    MeGlynn & McGlynn, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Barry

text:
    Esther Sanders, administratrix of the estate of A. J. Sanders, deceased, appellee, v. United States Fuel Company, appellant.
    Death by wrongful act. Judgment for plaintiff. Appeal from the Circuit Court of Eranklin county; the Hon. J. O. Eagleton, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    Knapp & Campbell and Pulverman & Cantrell, for appellant; Joseph L. Earlywine, of counsel.
    Williams & Lewis, for appellee; Layman & Johnson, of counsel.
   Mr. Justice Barry

delivered the opinion of the court.


text:
    Nellie Sims, appellee, v. Hudson Insurance Company of New York, appellant.
    Action upon fire insurance policy. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    Maurice V. Joyce and Leahy, Saunders & Walther, for appellant.
    McCawley Baird, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


text:
    Bessie Gillett, appellee, v. Illinois Central Railroad Company, appellant.
    Action for personal injuries by negligence. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. William E. Borders, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    Kramer, Kramer & Campbell and E. E. Costello, for appellant; John G. Drennan, of counsel.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


author: Mr. Justice Higbee

text:
    The People of the State of Illinois for use of Esther S. Hanmann, appellee, v. Albert Sturman, appellant.
    Bastardy proceedings. Judgment of guilty. Appeal from the County Court of Clinton county; the Hon. Richard P. Farrell, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded.
    Opinion filed July 9, 1926.
    Wilson & Wilson, W. Murphey and C. A. McNeil, for appellant.
    Hugh Vincent Murray, State’s Attorney, for appellee; Andrew O. Niehoff and Maurice B. Johnston, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Walter Liese, trading as Liese Lumber Company et al., appellees, v. Barthel Hug, intervenor, appellant.
    Bill to foreclose mechanic’s lien. Lien denied. Appeal by intervening claimant. Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded with directions.
    Opinion filed July 9, 1926.
    A. B. Ogle and A. B. Davis, for appellant.
    L. N. Nick Perrin, Jr., for Walter Liese, appellee. Turner, Holder & Buffington, for John Howard Heiner and Elizabeth Heiner, appellees.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Thomas F. Jackson, appellee, v. Fidelity & Casualty Company of New York, appellant.
    Assumpsit upon policy insuring against loss by robbery. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    McGlynn & McGlynn, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    West Frankfort Bank and Trust Company, appellee, v. Lee Chapman and Elma Chapman, appellants.
    Action upon promissory note. Judgment for plaintiff. Appeal from the Circuit Court of Franklin county; the Hon. C. H. Miller, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded.
    Opinion filed July 9, 1926.
    J. E. Carr and George Sawyer, for appellants.
    Trobaugh & Church, for appellee; L. A. Cranston, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Pioneer Building & Loan Association, appellee, v. W. O. Hall et al., appellants.
    Action upon bond. Judgment for plaintiff. Appeal from the County Court of Williamson county; the Hon. A. D. Morgan, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded.
    Opinion filed July 9, 1926.
    J. E. Carr and George Sawyer, for appellants.
    J. H. Clayton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


author: Mr. President Justice Taylor

text:
    Thomas E. Freehill, by Bernard Freehill, Appellee, v. Consumers Company, Appellant.
    Gen. No. 30,935.
    1. Master and servant — when servant performing personal errand is within scope of employment. In an action against an ice company for injuries caused by its ice truck driver’s negligence, the ice truck delivery man while driving outside the route assigned by his employer to his home to change his wet and tight shoes for dry ones is still within the scope of his employment so as to make his employer liable for injuries caused by his negligence while so employed.
    2. Master and servant — profit from acts outside territory of servant as affecting scope of employment. In action against ice company for injuries caused by its ice truck driver’s negligence, a charge made by the company against its driver for ice delivered outside his assigned route prevents it from claiming that injuries inflicted by the driver’s negligence while so delivering were done outside the scope of Ms employment.
    3. Appeal and error — when verdict on conflicting evidence not disturbed. In action against an ice company for negligently injuring a child, conflicting evidence as to whether a boy near four years of age, found underneath the company's ice delivery truck after it was backed three feet, was injured while trespassing on the truck, does not warrant court in overriding jury’s verdict for plaintiff.
    4. Highways and streets — instructions in action for injury to child by baching truch. In an action against an ice company for negligently injuring a child an instruction based on a count of the eomplaint which alleged injuries to a child of near four years of age from the company’s truck driver backing his truck upon the child after leaving the truck unattended so that the child was attracted to it, is good even omitting the latter allegation of attractive nuisance.
    5. Negligence — when attractiveness of ice truck to children may he considered. In an action against an ice company for negligently injuring a child, proof that the company’s ice delivery truck, left standing unattended in the street, was so attractive to children of tender years that plaintiff, about four years of age, came close and was injured by driver’s negligent backing of the truck, may be considered by the jury to determine whether the driver was guilty of such negligence as to be the proximate cause of the child’s injury, even though the latter had gotten on the truck before his injury.
    6. Instructions — when not erroneous as ignoring defense. In an action against an ice company for negligently injuring a child, an instruction referring to the plaintiff, a child of near four years of age, as “engaged in play in the said highway around and about the wheels” of the company’s ice delivery truck, is not objectionable as ignoring the defense that plaintiff was a trespasser.
    7. Highways and streets — when instruction not erroneous as imposing too great care on truck driver. In an action against an ice company for negligently injuring a child, an instruction that “If you further believe that the said driver, by using his faculties with ordinary care,” could have seen the plaintiff, a child of near four years of age, in time to prevent backing an ice delivery truck against him, does not demand active effort of the driver to protect plaintiff.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Harry W. McEwen, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Oassels, Potter & Bentley and W. J. 0 ’Brien, for appellant; Ralph F. Potter, of counsel.
    Ryan & Rosenthal, for appellee; Joseph D. Ryan, of counsel.
   Mr. President Justice Taylor

delivered the opinion of the court.

This is an action on the case to recover damages for personal injuries. The plaintiff obtained a verdict and judgment for $7,500, and the defendant appeals,

The declaration contains two counts, in each of which it is alleged that on May 6, 1921, the defendant, the Consumers Company, was engaged in selling and delivering ice to its patrons in the City of Chicago, and operated a certain electric motor truck, which was being driven in the business of the defendant by its agent and servant on Evans Avenue, near its intersection with Forty-sixth Street, in Chicago, both of which highways were, on the day in question, much frequented and used by divers children of tender years.

The first count alleges, further, after stating the duty of the defendant, that the defendant through its agent and within the scope of his employment in the business of the defendant, so carelessly, negligently and improperly managed and operated the said electric motor truck, and so carelessly, negligently and improperly started and moved it from a standing position in Evans Avenue, near where Evans Avenue is intersected by Forty-sixth Street, that as a result of the negligence of the defendant, the motor truck struck the plaintiff, a child of the age of three years and eight months, while he was playing in the street in close proximity to the wheels of the truck, and seriously injured him.

The second count alleges further that the defendant, through its agent, acting within the scope of his employment in the business of the defendant, stopped the truck in Evans Avenue, near Forty-sixth Street ; that the truck at the time was partly loaded with ice, and while it remained standing in the street, it became and was an attraction to children of tender years, and did in fact attract the plaintiff and other small children ; that the children engaged in play about the wheels, and other parts of the truck standing there; that while the plaintiff was playing in the street around the truck and close to the rear wheels and in an obviously dangerous position, in the event that the truck should be started and moved, all of which facts and circumstances were known to the agent of the defendant, or would have been known by him had he exercised ordinary and reasonable care for the safety of the plaintiff, the agent of the defendant, notwithstanding his duty, so carelessly, negligently and improperly drove, managed and operated the truck, and so carelessly, negligently and improperly started and moved the truck both forward and backward from its standing position, that the truck struck the plaintiff, and by reason of the negligence of the defendant, he, the plaintiff, was seriously injured.

The defendant filed a plea of the general issue, and also a special plea. By the latter, the defendant alleges that it was not operating, controlling or managing the truck in question; that the driver of the truck at the time and place in question was not its agent or servant, and that the truck was not being driven for any of the uses or purposes of the defendant, or in the furtherance of or prosecution of any of its matters or business.

The plaintiff, Thomas E. Freehill, on June 6, 1921, the date of the accident, was three years and nine months old, and lived with his parents in an apartment at the northeast corner of Evans Avenue and Forty-sixth Street, Chicago. The truck by which the plaintiff was injured was an electric motor truck, used for the purpose of distributing ice, and belonged to the defendant. Just prior to the accident, it had been stopped with a small load of ice in it, in front of 4549 Evans Avenue, on the east side of the street, which was the number of the second building north of the apartment building in which the plaintiff lived. Evans A\renue is a north and south street, and Forty-sixth Street is an east and west street.

On the day in question, and for a long time prior thereto, the defendant company was engaged in the business of selling and delivering ice to its customers. For the purpose of delivering ice by its electric trucks, it assigned two employees to each truck. They were commonly known as driver and helper. In reality, their duties were interchangeable, and each one took turn about in driving the truck and delivering ice to customers.

For convenience in the transaction of its business, the defendant had divided that portion of the city which it supplied with ice into routes or districts. A route or district would he assigned to a driver and helper, with the restriction that they were not authorized, except in special cases and by special directions, to deliver or sell ice outside of their particular district. The truck which struck the plaintiff, on the day in question, was in charge of Monkus and Lundorf. The route, or territory, to which they were assigned, was bounded on the south by Fifty-first Street, on the north by Forty-ninth Street, on the east by Cottage Grove Avenue, and on the west by Grand Boulevard. No part of Evans Avenue, which runs north and south between Grand Boulevard and Cottage Grove Avenue, was in their territory. The next route to the north was bounded on the south by Forty-ninth Street, and on the north by Forty-seventh Street. Lundorf lived at 4549 Evans Avenue, between Forty-fifth and Forty-sixth Streets. Early in the afternoon of the day of the accident, in the course of making deliveries of ice, the truck in question was stopped near the gate of St. Xavier’s School, near the corner of Forty-ninth Street and Langley Avenue, the latter street being the next west of Evans Avenue. There, Monkus, who had been driving the truck, got down and went into the school to ascertain if any ice was needed. At that time Lundorf and Monkus were about at the end of their route, and their deliveries for the day were almost completed. While Monkus was in the premises at the corner of Forty-ninth Street and Langley Avenue, Lundorf, whose feet were wet, and whose shoes were wet and too tight and hurt him, drove the truck to 4549 Evans Avenue, whefe he lived, to change his shoes. Beaching there, he stopped his truck immediately behind the automobile of his landlord, which was parked in front. He went into the house, changed his shoes, and returned to the truck.

While Lundorf was in the house, the plaintiff, a boy three years and nine months old, with two other small children, began playing in the rear of the truck. Whether any of them got into the truck, or on the steps, or remained all together in the street, is in controversy. When Lundorf came out, he got on to the front end of the truck, and being too close to the automobile in front to permit driving ahead, he backed south three or four feet, and in doing so, the truck struck the plaintiff, crushing his pelvis between some portion of the truck and the street. When picked up, he was under, about, the middle of the truck.

The errors relied upon for reversal are as follows: (1) That a verdict should have been directed for the defendant at the close of all the evidence, because there was no evidence of defendant’s negligence, the undisputed evidence showing that the driver of the truck was not at the time acting in the course of his employment, and the truck was not then being used in the business of the defendant; (2) that the plaintiff was a trespasser on the truck, and neither wilful nor wanton negligence was alleged or proved, and (3) that the court erred in giving and refusing certain instructions.

(1) Was Lundorf acting within the scope of his employment at the time in question; that is, was Lundorf, when he drove over from a point near the corner of Forty-ninth Street and Langley Avenue, to 4549 Evans Avenue, where he lived, in order to change his shoes on account of his feet and shoes being wet, and his shoes too tight and hurting his feet, and to deliver some ice — if he did so — and then went out and backed the truck, which resulted in the injury complained of, acting within the scope of his employment?

The contention that Lundorf went beyond his authorized route, and was acting outside of his employment, and that the truck was not then being used in the business of the defendant, overlooks the fact that the scope of employment is a somewhat flexible phrase, and according to the decisions, embraces many acts and motions that in and of themselves seem to be purely personal, and not those of an agent. Illustrative of this point, are the words of the court in Steel Sales Corp. v. Industrial Commission, 293 Ill. 435: “An employee while at work for his employer may do those things which are necessary to his own health and comfort, even though they are personal to himself, and such acts will be considered incidental to his employment.” Citing Rainford v. Chicago City R. Co., 289 Ill. 427; Nelson R. Const. Co. v. Industrial Commission, 286 Ill. 632; 1 Honnold on Workmen’s Comp. sec. 111; Papinaw v. Grand Trunk Ry. Co., 12 Neg. & Comp. Cas. Ann. (Ill. Ed.) 243, and cases cited in note; Harper on Workmen’s Comp. sec. 39; Corpus Juris, Treaties on Workmen’s Comp. Acts, sec. 69.

There is now quite a volume of decisions in the courts dealing with the subject of deviation on the part of the servant. A great number of them are collated in Berry Automobiles, 5th Ed. sec. 1251 et seq. In section 1251, that author says: “A mere deviation by the servant from the direct route, or from the strict course of his duty, will not relieve the master from responsibility.” An examination of the cases discloses that the courts, with great unanimity, have decided that if there is any substantial evidence tending to prove that the deviation was within the scope of the servant’s employment, it must be submitted to the jury.

In Blaker v. Philadelphia Elec. Co., 60 Pa. Super. Ct. 56, where an employee, while returning the defendant’s" automobile to the garage, had to stop and change a tire in the rain, and, his clothing becoming wet, instead of returning to the garage immediately, he drove to his home, in another part of the city, had his supper, changed his clothes, and started to return to the garage, and then, further, while returning went out of his way several blocks to get some cigars, and while doing so negligently struck and injured some children, it was held that the question of whether the accident occurred while he was acting within the scope of his employment was for the jury. In affirming the judgment, the court said:

“His clothing became wet from the rain while engaged in his master’s business. To. enable the chauffeur to properly attend to the duties of his master he must be in fit physical condition to perform his services. This condition of the servant is of as much concern to the master and is as much related to the business of his employment as is the repair of the car. If, in the service of the master, the servant, from the happening of an unexpected event caused by the operation of the car, is injured or placed in a position that sickness may result, in order to further continue his master’s business, the use of the car in relief of that condition, that his master’s business may be facilitated, in such an act arising from emergency from which scope of employment might be presumed. * * * When he went to change his clothing it was as much for the master’s benefit as it was for the convenience of the servant.”

In Devine v. Ward Baking Co., 188 Ill. App. 588, where an employee was engaged to drive a bakery truck over a certain route, and, counter to the instruction of his employer, made a trip off his route to take a person home, and after finishing the side trip, and while returning to the bakery, ran over a boy in the street, it was held that at the time of the accident he was driving the truck in the regular line of his employment.

In Chicago Consolidated Bottling Co. v. McGinnis, 86 Ill. App. 38, where the driver of a wagon, who was engaged in delivering his master’s property, drove a few blocks out of his regular route in order to call upon his wife, and, after leaving the house and was again proceeding on his employer’s business, injured the plaintiff, a boy who was upon the step in front of the driver, the court said: “If the servant, in driving his master’s team on his master’s business, chooses an indirect route, or deviates from his direct route for purposes of his own, and is yet engaged in performing the master’s work in such indirect manner, the master may still be held liable. In order to make it the servant’s act alone there must be a turning away from the master’s service and an entering upon an affair which is the affair of the servant only.”

In the instant case there was evidence tending to show that prior to the day in question the defendant’s truck was seen a number of times at the place where the accident occurred, in charge of Lundorf; that on a number of occasions prior to the accident, Lundorf had delivered ice from the same truck, or one similar to it, not only to the house in front of which the accident took place, being the house where he lived, but to another house across the street; that just prior to the accident the truck had been standing in the street partly loaded with ice; that Lundorf was seen to leave his boarding house with an ice pad and tongs, and put them on the truck just before he got on the truck and started backing; that Lundorf and his associate, who had joint control of the truck on the day in question, had authority to determine when and where, in the course of their working time, they were to eat their lunch, and authority to drive the truck wherever they pleased for that purpose, and as a matter of practice usually drove outside of their prescribed territory to have their lunch; that Lundorf, his feet being wet and his shoes wet and tight and hurting his feet, drove to the place in question, where he lived, in order to relieve his feet by putting on another pair of shoes; and that he changed his shoes, and then went out and got on the truck and started and backed it up, preparatory to going back to where he had left his associate, in order to finish the day’s deliveries of ice. In our judgment, that evidence was properly submitted to the jury, and the motion, at the close of all the evidence, to direct a verdict for the defendant, was properly overruled.

Although when Lundorf started from the school and deviated from the jurisdiction prescribed by his employer, there was then, physically, a temporary abandonment of the direct purpose for which he was employed, that is, the delivery of ice, and the truck was then being driven, seemingly, entirely for his personal convenience and comfort, still, it must be borne in mind that Lundorf himself, not being a mere machine, but, instead, subject to the many infirmities and necessities common to man, must be considered entitled — it being implicit in the contract of employment — to go on the errand he did and still be legally acting within the scope of his work or employment. Further, deviation may be said to have taken place as much for the benefit of his employer as for himself.

There is also the evidence, that of Lundorf and others, that he had delivered ice at least two or three times to his boarding house; and that — as the defendant each day charged him and his associate with all the ice they started out with and credited them in the evening with what they had left, less shrinkage, and, when they came back, it was necessary for them to report all they had delivered — if they gave any away, it came out of their own pockets and the defendant profited by it. That, also, as wé have intimated, was proper evidence to be submitted to the jury. If the defendant profited by the delivery of ice to Lundorf’s boarding house, it is not entitled to claim that at the

time of such delivery he was acting beyond the scope of his employment; acceptance of profit is incompatible with repudiation of employment. Weis Paper Mill Co. v. Industrial Commission, 293 Ill. 284. Rainford v. Chicago City R. Co., 289 Ill. 427.

(2) Was the plaintiff a trespasser? As to the question whether or not the plaintiff was on the truck at the time it was backed up, we think there was ample evidence to. justify its submission to the jury. Krause said, “There were some children playing in the rear of it, say about one foot in the rear of it * * *. He started off in backing up on top of these children, and I yelled for him to stop.” On the other hand, two witnesses for the defendant, both of whom lived across the street, testified to the contrary. One, Mr. Norgaard, testified that the plaintiff and two other boys were all on the step, and that when driver started to back, up the truck, they jumped from the truck, and two of them got underneath. The other, Mrs. Murnane, testified that her son and the plaintiff were on the step, although she further testified that she did not see accident when it happened, but saw the situation immediately afterwards. Lundorf testified that he did not see the children. He also testified, and it is not contradicted, that he backed the truck to the south only three or four feet. The evidence also shows that when the boy was picked up and taken out from under the truck, he was at that time under about the middle of the truck. The latter evidence, of course, is somewhat inconsistent with the theory that the plaintiff was on the step of the truck, or inside the truck, when it started to back up. If it moved backwards only three or four feet, it would be highly improbable that the plaintiff’s body would be found under the middle of the truck. In any event, we think the evidence on the subject was properly submitted to the jury, and that we are not entitled to override their verdict in so far as it involves that subject.

(3) As to the instructions. It was objected by the defendant that the court erred in giving plaintiff’s instruction numbered 6, on the ground that there was no evidence in the record tending in the slightest degree to support the allegations of the second count that the truck, as it stood at the curb immediately before the accident, constituted an attractive nuisance.

Instruction numbered 6 undertook merely to inform the jury of the allegations which the plaintiff had made in the second count of his declaration. From an examination of the second count as hereinbefore set forth in this opinion, it is obvious that there were sufficient allegations in the count to sustain the plaintiff’s right to recover, even if the allegations that the truck was an attraction to children of tender years, and did in fact attract the plaintiff and other small children, were omitted or disregarded. Further, the allegations that the truck was an attraction to children, and did, in fact, attract them, were charges which, if proved, the jury had a right to consider in determining whether or not Lundorf was guilty of negligence in backing the truck, even though the plaintiff was on the step or in the truck; and the jury might reach the conclusion that he was guilty of negligence, which was the proximate cause of the injury, without considering him guilty of inflicting the injury wantonly and wilfully.

As to instruction numbered 1, offered by the defendant and refused, and which requested the court to instruct the jury that there was no evidence tending to support the charges of negligence made in the second count of plaintiff’s declaration, it was properly refused, as, in our judgment, there was evidence to that effect.

In support of the objection made for the defendant that the court erred in giving instruction numbered 7 for the plaintiff, it is claimed that it ignored the defense that the plaintiff at the time of, and immediately before, the accident was a trespasser upon its truck. We do not think that contention is tenable, as it specifically and only refers to the plaintiff as “engaged in play in the said highway around and about the wheels and other parts of the said truck,” and in no way refers to the plaintiff as engaging in play on or within the truck; in other words, it only covers play in the highway and not within the truck. The instruction is also criticised on the ground that it imposes upon the driver of the truck the duty of using his faculties in an active endeavor to protect the plaintiff in a position of danger at the rear of the truck. But the instruction uses this language: “If you further believe that the said driver, by using his faculties with ordinary care in looking out for danger, could have seen the plaintiff,” and as the driver was bound to exercise ordinary care, those words in the instruction were entirely proper. Liska v. Chicago Rys. Co., 318 Ill. 570; Chicago W. D. Ry. Co. v. Ryan, 131 Ill. 474.

It is claimed that error was committed in giving instruction numbered 8 for the plaintiff. Considering the evidence and the law as we have set them forth above, in our judgment it was properly given.

It is claimed for the defendant that it was error to give instruction numbered 9 for the plaintiff; that there was no testimony tending to support the contention that Lundorf was on an errand in any way pertaining to the business of the defendant at the time of the accident; but that he was driving1 the truck back to the route or territory where his duties lay. It is our opinion, as we have intimated above, that there was ample evidence for the jury that Lundorf was acting within the scope of his employment, not only when he went home to change his shoes, but when he started back, and at the time the accident occurred.

For the reasons set forth, the judgment will be affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.


author: Mr. Presiding Justice Taylor Mr. Justice Thomson

text:
    John B. Hittell, Appellee, v. City of Chicago, Appellant.
    Gen. No. 31,066.
    1. Officers and public employees — when, payment of salary to de facto holder not in good faith. In an action by a civil service employee to recover salary accruing during the period of his wrongful exclusion from office evidence held to show that payments of salary to the de facto incumbent were not made in good faith.
    2. Officers and public employees — right of wrongfully excluded civil service employee to hack salary. A civil service employee wrongfully excluded from his position is entitled to recover all of the salary accruing during the period of his illegal exclusion, notwithstanding the payment to the de facto incumbent of all of the salary appropriated for the position, where both the exclusion and such payment of salary were in bad faith.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Harry M. Fisher, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Francis X. Busch, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellant; W. Arnold Amberg and Boy S. Gasicill, Assistant Corporation Counsel, of counsel.
    Perlman, Goodman & Scolnik, for appellee; Avern B. Scolnik, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

March 8, 1923, John B. Hittell, plaintiff, began suit in the circuit court for back salary as chief street engineer for the City of Chicago. There was a trial before the court, without a jury, and a judgment for the plaintiff in the sum of $25,500. This appeal is therefrom.

The claim of the plaintiff is for salary alleged to be due him as chief street engineer of the board of local improvements — a position under the act regulating the civil service of cities — for the period beginning with September 19, 1916, and ending February 28, 1923. In his amended declaration, the plaintiff alleges, in substance, that he is, and has been continuously, since September 19,1916, the duly qualified and legally appointed chief street engineer of the board of local improvements of the City of Chicago; that during the period from September 19,1916, to February 28, 1923, he was wrongfully, and in bad faith, prevented from occupying the position and performing the duties thereof, although he was at all times ready, able and willing, and demanded of the board of local improvements the right to do so; that after he was wrongfully and illegally refused occupancy of the position and employment as chief street engineer, he instituted a proceeding in mandamus in the circuit court of Cook county against the City, the board of local improvements, the civil service commission, and one Julius G-ableman, who had been temporarily employed by the board of local improvements to perform the duties pertaining to the position of chief street engineer during the time the plaintiff was illegally and fraudulently deprived of his position, to compel them to permit him to occupy the position and receive the salary; and that, in that proceeding, it was ordered on October 1, 1921, that he be restored to his position. That order, it was further alleged, provided that he should be forthwith restored to his position, and placed upon the proper roster and pay roll with the same rights and duties, and receive salary therefor, as he would be entitled to receive had he not been denied reinstatement in his said position on and since September 19, 1916, subject to the laws, rules and ordinances pertaining to said position, and without prejudice to the right of said petitioner to seek in other appropriate legal action proper remedy for the recovery of all salary due him from said City of .Chicago or failure to reinstate and permit him to enter upon and perform the duties of said position from said September 19, 1916.

It was further alleged that the City and the other respondents appealed from that order for mandamus to the Appellate Court; that there the judgment of the circuit court was affirmed; that on February 20, 1923, a petition to the Supreme Court for a writ of certiorari was denied; and that on March 2, 1923, pursuant to a writ of mandamus issued on February 28, 1923, he was restored to his position as chief street engineer, and is now occupying that position, and securing the salary therefor.

It is further alleged that he has received no part of the salary, for the position, that accrued between September 19,1916, and March 2, 1923, although there was an appropriation by the City for the position of chief street engineer for each year within that period; and that there is due him the sum of $27,066.67, as principal, and $3,237.50 as interest, to March 2, 1923, making a total of $30,304.17.

On April 6, 1923, there was filed on behalf of the City, by its assistant corporation counsel, a pleading in the form of an affidavit of merits, in which was set up the defense of the City. That defense is as follows: “That for and during the entire period from September 19, 1916, to March 2, 1923, the duties of the said position of chief street engineer, also known as chief engineer of streets, were performed by an incumbent de facto of said position, and, that all moneys appropriated or provided by the City Council as salary for said position of Chief Street Engineer or Chief Engineer of Streets for the period of time in question, has been paid by the City in good faith to the incumbent de facto.” A general demurrer to the plea of the defendant was filed by the plaintiff and, subsequently, overruled. The cause was then tried before the court without a jury.

The evidence produced at the trial consists of the testimony of the plaintiff, that of two witnesses for the defendant, Snelling, assistant paymaster of the City, and Foehringer, secretary of the civil service commission, together with certain exhibits, and in the course of the trial, it was agreed that the facts set forth in the amended petition in the suit for mandamus, should be considered as having been testified to by the plaintiff.

From the evidence and certain special findings of fact requested by the City and marked “Held,” the following appears: The plaintiff since 1889 has been a civil service employee of the board of local improvements of the City of Chicago. He held different positions up to 1913, at which time he was promoted by the civil service commission to the position of chief engineer of the board of local improvements. That position he held continuously until January 19, 1916, at which time he was granted a leave of absence for one year. On September 19, 1916, he returned- from his leave of absence, and reported for duty to the board of local improvements, and to its president, and to the civil service commission, and demanded, on each occasion, in writing, that he should be reinstated in his position, and assigned to duty; and, afterwards, on numerous occasions, the plaintiff requested the board of local improvements that he be reinstated in his position and place of employment. On September 19,1916, he presented to M. J. Faherty, president of the board of local improvements, the following request in writing: “I hereby return from leave of absence granted me, and present myself for assignment to duty.” On the same day, he made a request of the board of local improvements in writing as follows: “I hereby return from leave of absence granted me, and request that my name be restored to the eligible list.” On September 23, 1916, in response to Ms written request to the board of local improvements, he received a written communication from Faherty as follows: “Tour communication of the 19th inst., has been referred to the Civil Service Commission for such action as they see fit to take.” All his requests for reinstatement and assignment to duty were refused. The plaintiff brought suit in mandamus, as set forth in his declaration, and as a result, on March 2,1923, he was restored and reinstated, and has since occupied the position of chief street engineer, and received the salary belonging thereto. Meanwhile, between May 22, Í916, and April 9, 1917, the position was occupied by one Julius Gableman, by reason of so-called temporary appointments, and between April 9, 1917, and March 2, 1923, as a regularly certified appointee, and as the result of a promotional examination held by the commission; and during all that time, between May 22, 1916, and March 2, 1923, all of the money appropriated by. the city council for salary for the position of chief street engineer, amounting to a total of $25,096.82, was paid to Julius Gableman.

At the request of counsel for the City, the court made the following finding of facts:

“That for the period beginning September 19, 1916, and ending April 9, 1917, one Julius Gableman was acting Chief Street Engineer of the Board of Local Improvements of the City of Chicago; that formal written requests were made from time to time by said Board of Local Improvements upon the Civil Service Commission of the City of Chicago for authority to make temporary appointment to said position of Chief Street Engineer, and that pursuant to written authority respectively granted upon such requests the said Julius Gableman was appointed to said position by said Board of Local Improvements, and he accepted the same and discharged the duties of the position; and that while he was .so in possession of said position during the said period of time he was paid by the defendant, City of Chicago all the salary or compensation appropriate for such position, and that this is the same salary and compensation which the plaintiff seeks to recover by this action.”

And further “that for the period beginning April 9, 1917, and ending February 28, 1923, one Julius Gable-man was acting Chief Street Engineer of the Board of Local Improvements of the City of Chicago; that formal written request for original appointment was made by said Board of Local Improvements upon the Civil Service Commission of the City of Chicago, and that pursuant thereto said Julius Gableman was certified by said Commission and appointed to said position by said Board of Local Improvements and he accepted the same and discharged the duties of the position.”

The principal errors relied upon for reversal by the defendant, the City of Chicago, are: (1) That all moneys appropriated for the payment of the salary for the position in question, from September 19, 1916, to February 28, 1923, were paid to a de facto incumbent, who actually occupied said position and performed the duties thereof, and (2) that all payments made to a de facto incumbent were made prior to the reinstatement of the de jure incumbent.

On the other hand, it is the contention of the plaintiff that the payment of salary to the de facto employee in order that it shall constitute a defense against a suit brought by the de jure employee, must be shown to have been made in good faith; and that the payment by the defendant of the salary appropriated for chief street engineer of the board of local improvements during the period in question was not made by the defendant in good faith.

Two questions arise: First, as a matter of fact, were the payments to Gableman, the de facto incumbent, made in good faith; second, as a matter of law, if not made in good faith, was the plaintiff entitled to recover?

First, we are bound to assume as the result of the opinion of this court in the mandamus proceedings— 227 Ill. App. 607 — that the plaintiff from September 19, 1916, to March 2, 1923, was legally entitled to occupy the position. Further, from certain language in that opinion, as, for example, “He ^as prevented from discovering the fraud perpetrated upon him through his confidence in the Civil Service Commission,” and “the Relator (being the plaintiff here) delayed filing his petition on account of the illusive assurance given by the Civil Service Commission as to his reinstatement,” we start with the adjudication that a fraud was perpetrated in preventing him from being reinstated. In answer to that, in the instant case, the City put in no evidence in explanation or con-donation, or in any way exculpatory. It offered no evidence in reference to keeping the plaintiff out of his position — although he testified to his being kept out— or any evidence whatever, which would in any way support the alleged defense of good faith.

On the other hand, the evidence for the plaintiff shows that up to January 19, 1916, the plaintiff occupied the position of chief street engineer; that on that day he was granted, in a legal and regular way, a year’s leave of absence; that he returned from his leave of absence on September 19,1916, and presented himself, and applied personally and in writing for reinstatement and restoration to his position; that that fact is shown by the minutes of the meeting of September 20, 1916, of the board of local improvements; that the minutes further show that the board confirmed plaintiff’s written demand to its president; that the president responded by writing to the plaintiff informing him that his letter had been referred to the civil service commission; that G-ableman was a temporary appointee on April 9, 1917, when an attempt was made to promote him as a regular appointee to the position; that the plaintiff after his return and demand on September 19, 1916, was told to wait and that he would be reinstated; that he waited and demanded a number of times that his request be acted upon, and for a time relied upon the assurance given him that he would be reinstated.

Further, on the trial of the case, counsel for the City, with commendable frankness, said: “The documentary evidence that your Honor admitted, showed that these demands were made, and this man (meaning the plaintiff) was lulled into a sense he might be reinstated. * * * I know the record here is condemning. It can’t be helped. It is an unfortunate thing for the City of Chicago, and simply shows that when these men in office will deliberately trample under foot the Civil Service Act, and ignore their duties with respect to civil service employee, they can bring judgment and damages and this sort of misfortune to the City.” To the question, therefore, why was the de jure incumbent refused reinstatement and the de facto incumbent given at first temporary appointments and then a spurious effort made to give him a permanent appointment, and all throughout paid the salary that pertained to the position, the answer is obvious. It was done in bad faith in order to keep the plaintiff out and put one in who was not legally entitled to the position, and to provide that all the salary should go illegally to the de facto incumbent, instead of to the one rightfully entitled to it. From the record in this case, therefore, we feel bound to hold that the action, of those who represented the City, was inspired and accomplished as the result of an improper purpose, and the desire to have the salary of the position paid to the de facto incumbent instead of the one who was legally entitled to both the position and the salary; in other words, that the evidence shows that the salary was not paid out in good faith to Gableman.

Second. Not being paid out in good faith, is it the law that he may now recover his salary from the City?

This court held in O’Connor v. City of Chicago, 242 Ill. App. 634, where the chief clerk in the city comptroller’s office — a position under the act [Cahill’s St. ch. 24, [685 et seq.] regulating the civil service of cities— brought suit in assumpsit for back salary, which it was claimed had been paid to a de facto occupant of the position, that if the salary was not paid out in good faith, the plaintiff could recover. In support of that principle, the cases of People v. Schmidt, 281 Ill. 211, and People v. Thompson, 316 Ill. 11, were cited.

Counsel for the City urge that the Thompson case only decided that the payment of salary to the de facto officer after judgment reinstating the de jure officer is no defense to a suit for salary by the de jure officer for the period of time subsequent to the entry of the judgment, and that in that case no question of payment in good faith arose; and that the Schmidt case is the only decision by our Supreme Court that in any way even suggests that the right of the de jure incumbent to recover for back salary may be dependent upon whether or not the de facto incumbent has been paid in good faith.

An examination of the Schmidt case, however, shows that even there the subject of “good faith” was not a matter of controversy. The court there said, on page 213, “the principal question to be decided here is whether the payment of a salary provided for an office or position to a de facto employee or officer in said position is a good defense to a claim against the public corporation making such payment in an action against such corporation by a de jure officer or employee to recover such salary.” In that case, where the issue was precipitated by a petition, answer and demurrer, it does not appear that the petition contained any allegations charging that payments of salary to the de facto incumbent were not made in good faith.

An examination of the Thompson case shows that all that was there involved, as regards salary, was that which became due after the date of the judgment of the circuit court in certiorari proceedings quashing the record of the civil service commission; and the Supreme Court held that the payment of the salary to the de facto officer after judgment reinstating the de jure officer, is no defense to a suit for salary by the de jure officer for the period of time subsequent to the entry of such judgment.

No case has been cited and we have found none in this State, in which it has been held that where, in making payments to a de facto incumbent, bad faith is shown, the de jure incumbent is entitled to recover. In the decisions in this State, outside of the O’Connor case, supra, decided by this court, all we find in the way of enlightenment are certain dicta appearing in the Thompson and Schmidt cases, supra. In the Schmidt case there is the following language: “The question has never been passed upon by this court, where the salary has been paid, whether it could be recovered again from the city by the de jure officer. If the salary or compensation has been paid in good faith to a de facto employee during the time the position was in his possession, it cannot, on principle and by the weight of authority, be recovered again from the city, county, State or other governmental subdivision by the de jure officer.”

In the Thompson case there is the following: “The rule of this State is, that the payment in good faith of the salary of an officer to a de facto officer, constitutes a bar to an action by the de jure officer for the salary paid to the de facto officer. The well defined exception to the above rule is that where the relator is illegally removed from his office and the salary has been paid to another person illegally appointed in his stead a writ of mandamus will be awarded requiring the reinstatement of the relator in office and the payment of his salary during his illegal removal.”

Although, therefore, there is no actual decision by the Supreme Court on the question here directly involved, we are of the opinion that the conclusion reached in the O’Connor case, supra, is sound; that is, if the evidence shows that the payments to the de facto incumbent were not made in good faith, the de jure incumbent can recover. If the law were otherwise, as the court said in Mattox v. Board of Education of Liberty County, 148 Ga. 577, 579, “a governmental board constituted for ministerial purposes might deprive the people themselves of their right to select their own public officers.”

For the reasons set forth, the judgment is affirmed.

Affirmed.

O’Connor, J., concurs.

Mr. Justice Thomson

specially concurring: I concur in the decision in this case, but do not agree with all that is said in the foregoing opinion. I believe the matter of “good faith” in the making of payments to the de facto officer was directly involved in the Schmidt case, the O’Connor case and the Thompson case, all referred to in the foregoing opinion, and therefore, that all those cases are entirely in point here and authority for our decision of this case.


author: Mr. Presiding Justice Taylor

text:
    John C. Trainor, Appellant, v. Charles L. Koskey, Appellee.
    Gen. No. 31,093.
    1. Limitations or actions — when cause of action for instalment of rent accrues. Cause of action based on a lease giving lessor right to judgment on default of any one month’s rent due on the first day of the month accrues on the second day of such month at latest and the 10-Year Statute of Limitations starts running from that date.
    2. Limitations or actions — what act governs in action for rent. Action on a written lease providing for judgment in default of one month’s rent is an action on a written contract barred in ten years from such nonpayment of rent.
    - 3. Limitations of actions — when action for rent "barred. Action for all unpaid rent, not begun until more than ten years after the last date for payment, under lease providing for judgment by confession on nonpayment of any instalment of rent, due on the first day of every month, is barred though begun three days before ten years after the final termination of the lease.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. George Fred Rush, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    John C. Trainor, Jr., for appellant.
    William J. Dillon, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On April 28, 1922, the plaintiff, John C. Trainor, a lessor, caused to be entered in the circuit court, upon a warrant of attorney in a lease, a judgment by confession in the sum of $3,154.14, against the defendant, Charles L. Koskey, a lessee.

On November 17, 1923, pursuant to an agreement of the parties, the judgment was opened and leave given the defendant to plead.

On November 21, 1923, the defendant filed a plea of the general issue, and, a special plea, alleging (1) that it had been agreed between the plaintiff and the defendant that the latter was released from all liability under the lease; (2) that he had paid all that was due on the lease as long as he had remained in the premises ; (3) that it was agreed between them that the defendant should vacate the premises and be released from further obligations to pay rent for them; and (4) that the premises were occupied by other tenants during the life of the lease, and that they paid rent therefor to the plaintiff.

On September 24, 1925, plaintiff filed a similiter to the defendant’s first plea, and replied to the special plea, denying all the affirmative allegations.

On September 30, 1925, pursuant to leave of court, the defendant filed a plea of the statute of limitations, alleging that the several supposed causes of action set forth in the declaration did not accrue to the plaintiff within ten years next before the commencement of the suit. To that plea, the plaintiff, on October 5, 1925, filed a replication.

On October 9, 1925, the cause came on for trial before the court, without a jury, and there was introduced the testimony of John C. Trainor, and the lease in question. No other evidence was put in.

On November 28,1925, on motion of the defendant’s attorney, an order was entered that the judgment theretofore entered be vacated and set aside. That order further recites that “thereupon this cause is submitted to the court for trial, without a jury, and the court having heard all the evidence produced, and being further advised in the premises, finds the issues for the defendant * * *, and that the plaintiff take nothing by his aforesaid action,” and that the defendant recover from the plaintiff his costs and charges.

From the order of November 28, 1925, the plaintiff appealed.

The only question argued in the briefs of counsel, is whether or not the plea of the statute of limitations was good, and the answer to that depends upon the time when the statute of limitations began to run.

The lease introduced in evidence is dated October 29, 1906, and is between John C. Trainor, the lessor, and Charle-*, L. Koskey, the lessee. The property leased is a store in the premises known as street No. 2442 One Hundred Fifteenth Street, Chicago. The term of the lease is from November 15, 1906, until April 30,1912. Provision as to payment of rent by the lessee is as follows: “To pay as rent for said demised premises the sum of Two Thousand Six Hundred and Twenty ($2,620.00) Dollars, payable in installments of Forty ($40.00) Dollars * * * each in advance, upon the first day of each and every month of said term, at the premises, said store.” There is a further provision in the lease as follows: ‘ ‘ Tenth. The sum of twenty dollars to be paid on the date hereof for the rent of said premises to the first day of December, A. D. 1906, then the installments of rent to be forty dollars per month payable on the first day of each and every month during the continuance of the term of this Lease which terminates April 30th, A. D. 1912 as above stated. ’ ’ The lease also contains a warrant of attorney providing “that if default be made in the payment of the rent above reserved or any part thereof, * * * it shall be lawful * * *” for the lessor, without notice, to declare the term ended, and to have judgment confessed “from time to time for any rent which may be due” to the lessor by the terms of the lease.

As said above, the only evidence introduced, outside of the lease above referred to, was the testimony of the plaintiff, John C. Trainor. He testified that the lease was signed by himself and the defendant, and ran for a little less than six years, from'November 15, 1906, until April 30,1912 ,• that the defendant occupied the premises from November 15, 1906, until and including the month of August, 1907, making about nine months; that the defendant paid $40 a month during the term that he was in possession, which included the rent for August, 1907; that no payments have been made by the defendant since he left the premises in August, 1907; that he, the plaintiff, collected $150 from a tenant who occupied the premises from October 10, 1907, to January 9, 1908, at the rate of $50 per month.

It is the contention of the plaintiff that there was due as principal, at the time of the trial, rent at the rate of $40 a month for 46 months — less $150 received from the intermediate tenant — being the sum of $2,090, and interest thereon at 5 per cent, from May 1,1912, to April 27, 1922, in the sum of $1,044.14, making in all, $3,134.14.

It will be seen that the first instalment of rent, for which the defendant was in default, was due and unpaid on September 1, 1907, and the last was due and unpaid on April 1, 1912; and that the suit was begun on April 22, 1922, more than ten years after the last instalment was due and payable. The statute of limitations — section 16, ch. 83 [Cahill’s St. ch. 83, [[17] —provides that ‘1 actions on * * * written contracts * * * shall be commenced within ten years next after the cause of action accrued.”

It is urged for the lessor: “The lease is an entire contract for certain purposes yet each instalment of rent, as it becomes due, creates a separate cause of action, at the option of the lessor, and each default also creates a new cause of action, but the lessor may forbear to institute suits thereon and wait for the lease to expire before doing so.” No case is cited, and we have found none that purports in any way to support the proposition that forbearance by the lessor, after a cause of action has accrued as to an instalment of rent provided for in a written lease, can toll the running of the statute.

In Clun’s Case, 10 Coke’s Reports 127, is the following: “If a rent is reserved on a lease for years at four usual feasts of the year, the lessor shall have an action of debt after the first day, and shall not stay till the whole is due, because it is accounted in law as a reservation of parcel of the issues and profits of the land, which is no debt before the day, as in the said case of a bond or contract.” So, here, it is reasonable to hold that as the lessee from month to month had the use and occupation of the premises, the contract to that extent, from month to month, was executed on the part of the lessor, and the lessee was bound to pay for it, and especially must that be true where the lessee, as here, expressly contracted to pay for each month in advance, and expressly contracted that he would be in default if he did not pay an instalment on the first day of each month. It follows, therefore, that there arose a cause of action, a right on the part of the lessor to sue or confess judgment, at the latest, upon the second day of any month when the lessee was in default. It is true that the lessor, before beginning suit, could wait, if he so desired, until after the expiration of the full term of the lease, but he would do so at his peril, and run the risk of facing a plea of the statute of limitations, and so losing his remedy. The statute is one of repose, and requires, what is admittedly exceptional, some diligence on the part of the creditor. But that is not fraught with any unnecessary hardship. The lessor here had taken pains to provide expressly for a right to sue whenever there was a default, <-and he knew, or is presumed to know, that if he. did not sue within ten years after a default, the statutory bar could be interposed and his remedy extinguished.

The principle of the statute is based, in part, at least on the presumption of payment or release, which naturally arises from the lapse of time, and the purpose of the statute is to compel settlement within a reasonable time and while the truth, presumably, may be more easily ascertainable. Parmelee v. Price, 105 Ill. App. 271. The action here is upon the written lease, and so is an action upon a contract in writing. Knight v. St. Louis, I. M. & S. Ry. Co., 141 Ill. 110,115; Phillips v. Pitcher, 80 Ill. App. 219.

It is stated in Wood on Limitations, p. 424: “The statute begins to run from the time when a cause of action arises thereon and the bar is complete at the expiration of the statutory period.” And further, at page 409, “Where money is payable by instalments, the statute begins to run upon each instalment from the time it becomes due.” Askew v. Springer, 111 Ill. 662; Shelburne v. Robinson, 3 Gilman (Ill.) 597; Thompson v. Reed, 48 Ill. 118; 25 Cyc. 1065; Bush v. Stowell, 71 Pa. St. 208.

In Castleman v. Du Val, 89 Md. 657, where a lease on a house provided “for a term of eleven months, beginning on the 20th of Oct. 1897, and ending on the 20th of September 1898, at $641.63, payable $58.23 on the 20th day of each and every month,” it was held that each instalment was due on the 20th of the month, and not on the first or the last of the month.

In Davis v. Munie, 235 Ill. 620, the court said that the expression, when a cause of action accrues, “means when facts exist which authorize one party to maintain an action against another.”

In Bush v. Stowell, supra, which was a suit on a note payable in four instalments, the time and amount of each payment being specified, it was held, that the statute began to run as each instalment became due. Citing Co. Litt. 292 b; Rudder v. Price, 1 H. Bl. 547, and Cooke v. Whorwood, 2 Saund. 337. Of course, if there are two remedies which accrue at different times, as stated in Parmelee v. Price, 105 Ill. App. 271, “the statute begins to run from the time when the right to pursue the earlier remedy accrues.” Conklin v. Furman, 8 Abb. Pr. (N. S.) 161.

In our judgment, the right of the landlord to sue was the same as if there had been a written lease for each instalment. As the evidence showed that the lessee was in default on every instalment from and including September 2, 1907, to and through April 1, 1912, and as this suit was not begun until April 27, 1922, the ten years, within which an action should have been commenced, had expired.

For the reasons set forth, the judgment will be affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.