text:
    Jack Russell Calvert, Appellant, v. Illinois Power and Light Corporation, Appellee.
    Gen. No. 39,196.

      Heard in the third division of tills court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Crahen, Sullivan, O’Toole & Sullivan and George E. Billett, all of Chicago, for appellant.
    E. Bentley Hamilton, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This cause is in this court upon the petition of the plaintiff for leave to appeal from an order of the superior court of Cook county granting a new trial, which was allowed.

On April 29, 1936, after a hearing of the cause before the court and a jury, a verdict was returned in open court finding the issues for the plaintiff and assessing his damages in the sum of $21,250.

Thereafter the defendant filed a motion for judgment non obstante veredicto, and also a motion for a new trial ; and subsequent thereto on July 31, 1936, the trial judge granted defendant’s motion for a new trial.

The action upon which this case was brought is one at common law for alleged negligence, and was instituted by the plaintiff against the- defendant company, as the result of an accident which happened on September 14, 1930,jwhereby the plaintiff was injured. At the tihle of the-accident and. pripr thereto, plaintiff was a student at the University ofilllinois, located at Champaign, Illinois. •

To the declaration thé.defendant filed a plea of the general issue, and'subsequent thereto several specific pleas were filed by the defendant company in which it is alleged that the plaintiff was barred from recovery in Ms common law action, due to the fact that the University of Illinois was operating under and subject to the provisions of the Workmen’s Compensation Act of Illinois.

Replications were filed by the plaintiff to these several pleas.

The evidence offered on behalf of the plaintiff shows that on the day in question he was driving a milk wagon owned by the University of Illinois, in a northerly direction upon a certain thoroughfare known as Sixth street, at the intersection of John street, in Champaign, Illinois, about 6:00 a. m., when his truck came in contact with a certain trolley wire, which had become loosened and was looped down over the street at a height of about six feet from the street level, and of which the plaintiff had no knowledge until it came in contact with the windsMeld of his truck; that the defendant company had notice of the condition of the hanging trolley wire over the street at the point hereinabove indicated, but that after receiving notice of this condition about 5:00 a. m., an hour before the accident occurred, the company made no effort to guard the intersection or to remove the wire hanging in the manner described until at least an hour after receiving notice. There is evidence, however, that a police officer of Champaign, Illinois, was present at the intersection directing traffic prior to the time of the occurrence of the accident, but that he had left the intersection and was at' least fifty feet away when the accident took place'.

The evidence shows that plaintiff’s injuries were of a permanent character ;''that he was obliged to expend $5,000 for medical and hospital care, and that at the present time his nose is deformed and his eyesight impaired.

The defendant' offered evidence by the testimony of certain employees of the University of Illinois that the University of Illinois in certain of its departments kept, maintained and operated certain machinery, sharp edged tools, electric motors, motor trucks, etc. for the purpose of showing that the University of Illinois automatically was bound by the Workmen’s Compensation Act. The plaintiff urges that the order granting a new trial was erroneous for the following reasons:

1. That the question as to whether or not a person or corporation is operatingunder the Workmen’s Compensation Act is a question of fact.

2. That the University of Illinois was not operating under the Compensation Act either automatically or by election.

3. That upon a motion for a new trial the trial court, when passing on said motion, has no right to weigh the evidence, and the verdict in this case was warranted by the record and justified by the evidence.

The important issue in this case is whether the defendant was controlled by the provisions of the Workmen’s Compensation Act in force at the time of the accident. Par. 201 (a) of section 1 of ch. 48, Ill. State Bar. Stats. 1935; Jones Ill. Stats. Ann. 143.17, is as follows:

“Election by any employer to provide and pay compensation according to the provisions of this Act shall be made by the employer filing notice of such election with the industrial commission, or by insuring this liability to pay compensation under this Act in some insurance carrier authorized, licensed or permitted to do such insurance business in this State.”

Par. 202, section 3, which applies not alone to individuals, but also to municipal corporations, is in the following words:

“The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:
“3. Carriage by land, water or aerial service and loading or unloading in connection therewith, including the distribution of any commodity by horse-drawn or motor driven vehicle where the employer employs more than two employees in the enterprise or business, except as provided in sub-paragraph 8 of this section.”

The plaintiff during September of 1930, and also during the year previous had worked for the University as a driver of one of its milk trucks used for delivering milk to private consumers, which was sold both at retail and wholesale to persons and corporations in the cities of Champaign and Urbana, Illinois, at rates somewhat higher than regular rates for milk in that vicinity, and plaintiff had also worked in the Bottling Works of the University, for which work he received 35c per hour in 1929 and 1930.

The defendant calls our attention to the evidence that the University maintained three retail trucks and one wholesale truck for the delivery of milk to retail and wholesale customers, all of which were motor driven. This employment of the plaintiff in delivering milk was from 4:30 a. m. to 7:30 a. m., for which he was paid and received compensation of $40 per month. On the morning in question he was not only taking care of his own route but also the route of another driver who was absent on vacation. This work was done with the knowledge and acquiescence of the University, and was performed as one of the conditions laid down by the University, namely, that one driver should take over the route of another if it became necessary for any reason to do so.

There seems to be no dispute in the evidence that the University employed more than two trucks and more than two employees in the delivery of a commodity for hire, and that altogether the University had between 200 and 300 men working as employees who were not students or connected in any way with the instruction or courses offered by the University. The men so employed operated wood-working machinery, electric drills, maintained the various sharp edged tools, saws and various implements which were kept by the University, and worked in the machine shop, the power plant and on band saws, planers, drills, joiners and lathes.

On April 2, 1930, the United States Fidelity & Guaranty Company issued its certificate of insurance, insuring the Board of Trustees of the University of Illinois for accidents to chemists, clerical office, drivers and chauffeurs under Policy No. Z-539607. The Indemnity Company of North America also issued a certificate of insurance for a policy effective February 4, 1929', which continued in force until the policy of the United States Fidelity & Guaranty Company became effective on April 2, 1930. The records of the Industrial Commission show that the insurance remained in full force and effect until March 21, 1931.

The University of Illinois was a “body corporate and politic” of the State of Illinois. It was incorporated under the Act entitled, “An Act to Provide for the Organization and Maintenance of the Illinois Industrial University, approved February 28, 1867, and the Act, which is set forth in Smith-Hurd Illinois Bevised Statutes, 1933, ch. 144, par. 22, sec. 1, provides that it “shall be a body corporate and politic, to be styled ‘The Board of Trustees of the Illinois Industrial University’ ”, and by Amendment approved June 19, 1885, the name was changed to University of Illinois. The Act further provided that it should have pow.er to contract and be contracted with, to sue and be sued, to plead and be impleaded, etc.

The defendant contends that plaintiff was a student only in landscape gardening and had nothing whatever to dó, so far as his instruction was concerned, with the Dairy Department or the Agricultural Department, both of which were under the School of Agriculture;

Defendant’ also contends that the University used' explosive gases or vapors or corrosive acids, and. sharp edged cutting tools, grinders or implements and is an enterprise, in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances for the protection and safeguarding of' the employees or the public therein, so that the Workmen’s Compensation Act, section 3, applied automatically to the University."

Plaintiff’s answer to this contention is that whether or not an employer elects to operate under the Compensation Act is a question of fact, and cites in support of his position the case of Paul v. Industrial Commission, 288 Ill. 532, in which the court says: “Election by an employer to provide and pay compensation according to the provisions of this act shall be made by the employer filing notice of such election with the Industrial Board.”

On the question of whether or not the employer ■ elects to operate, being a question of fact, the court said in the case of Gross v. Cuneo Press, Inc., 251 Ill. App. 560.

“ Such ¡evídeneé, therefore, tended to show that plaintiff when injured was not acting within the scope of any duty he was bound to perform to protect the interest .of his employer, and hence presented as a question of fact for the jury to determine and not for the trial judge,, whether or not; the accident in question arose out of and in the course of plaintiff’s employment.” And in order to establish from the proof that the employer is governed by the provisions of the Act, the burden is upon the employer making the election.

The facts upon which the contention arose as to the nature of plaintiff’s employment by the University are not in dispute. The question is as to whether the plaintiff’s employment by the University on the day of the accident was such as would bar him from maintaining his action. It is hardly necessary to repeat the facts disclosed by the record on this question. The plaintiff worked as a driver of a motor driven car, delivering milk and kindred products for his employer, the University of Illinois. His employment was not a casual one; he was employed regularly and engaged in the usual course'of his employer’s business at the time of the accident. Kelly v. Industrial Commission, 326 Ill. 320.

The injuries suffered by the plaintiff by reason of the accident were the result of the risk arising out of the nature of the plaintiff’s employment, Sure Pure Ice Co. v. Industrial Commission, 320 Ill. 332; Board of Education v. Industrial Commission, 321 Ill. 23; Mueller Const. Co. v. Industrial Board, 283 Ill. 148, or kindred thereto, Union Starch Co. v. Industrial Commission, 344 Ill. 77.

Mr. Justice Farthing, speaking for the Supreme Court in the case of Forest Preserve District v. Industrial Commission, 357 Ill. 389, where a relief worker was employed to work for a forest preserve district, said:

“Where a municipal corporation does not engage in any enterprise or business or carry on any endeavors which include those activities declared by section 3 of the act to be extra-hazardous the corporation does not come automatically under the provisions of the act. (Village of Chapin v. Industrial Com., 336 Ill. 461.) The record must show affirmatively that the municipality was engaged in some one of the extra-hazardous enterprises or businesses enumerated. (Board of Education v. Industrial Com., 346 Ill. 505.) But the specific work engaged in by the employee need not be a part of such extra-hazardous undertaking or bring him in contact with it. (Illinois Publishing Co. v. Industrial Com., 299 Ill. 189.) The business or enterprise in which plaintiff in error was embarked was the maintenance of a forest preserve district for the public. The record shows that its main work was maintenance — removing debris, transplanting trees and shrubs, etc. Putkonen’s foreman testified that the truck was equipped with axes, picks and other tools. Such sharp-edged tools are required and were used in the work of plaintiff in error, and clearly their use brings the district within the provisions of subsection 7% of section 3 of the act above quoted.”

In the instant case it is contended that due to the fact that certain machinery was operated, sharp edged tools were used and motor trucks driven for the uses of the University of Illinois, the University was automatically bound by the Workmen’s Compensation Act. Under section 3 it is specifically provided that carriage by land, water or aerial service and loading or unloading in connection therewith, including the distribution of any commodity by horsedrawn or motor driven vehicle, where the employer employs more than two employees in the enterprise or business, subjects the employer to the provisions of the Workmen’s Compensation Act.

There seems to be no dispute that motor driven vehicles were used by the University, in which use it employed drivers to operate the cars, one of the drivers being the plaintiff in this case, and apparently the University is subject to the Workmen’s Compensation law because of its maintenance of machinery, electric drills and tools, band saws, planers, joiners and lathes. And this is clearly within the reasoning of the Supreme Court in the case of Forest Preserve District, v. Industrial Commission, 357 Ill. 389.

The plaintiff cites a number of cases, but the one which this court has considered as being more nearly in point, is North v. Board of Trustees, University of Illinois, 201 Ill. App. 449, and calls our attention to the holding of the court that neither the general nature and character of the work of educational instruction, nor the method adopted in giving it can properly be denominated an “enterprise” as that term implies under the Workmen’s Compensation Act. The court in that opinion did say:

‘ ‘ The question is, whether by the use or handling of such explosives, inflammable fluids and. molten metal as aforesaid, appellant is engaged in an ‘enterprise’ as designated in said quoted paragraphs 6 and 7. The record does not disclose the extent of their use. But whether ‘in dangerous quantities’ or not, we do not construe the term ‘enterprise’ as used in said act to apply to such a state of facts. The University was chartered to furnish instruction to students in various branches of learning. Neither the general nature .and character of the work of educational instruction, nor the methods adopted in giving, it, can properly be denominated an ‘ enterprise ’ as that term is usually defined.. Nor would they be brought within the definition of that term as employed- in the, statute, merely by the, incidental use „ and • handling ..qf «-the materials mentioned in the statute.” -.v-¡ ■

Subsequently, the Supreme Court of Illinois, in the case of Board of Education of High School Dist. 502 v. Industrial Commission, 301 Ill. 611, said this as-to the application, of the Workmen’s. Compensation law on the question of an injury which happened to William A. Hemmer, a manual training teacher employed by the Board of Education of a high school who was injured while instructing a pupil in the use of a circular saw in making a drawer:

“Under sections 4 and 5 of the Workmen’s Compensation Act the school district was an employer and the plaintiff in error was an employee. The only question in dispute is whether the district was subject to the provisions of the Workmen’s Compensation Act. On the part of the plaintiff in error it is contended that the provisions of the act apply automatically to the school district because it is engaged in an enterprise in which statutory regulations are imposed for the regulating, guarding, use or placing of machinery or appliances for the protection and safeguarding of the employees or the public therein, under subdivision 8 of section 3 of the Workmen’s Compensation Act.
‘ ‘ The manual training room in which these machines and tools were used and operated was a workshop within the ordinary meaning of the term, which is a building or room where any work is carried on, especially a handicraft. The defendant in error contends that the conducting of a manual training school is not an enterprise within the meaning of subdivision 8 of section 3 of the Workmen’s Compensation Act, and it quotes from Uphoff v. Industrial Board, 271 Ill. 312, that ‘it is plain from the use of the word “enterprise” in other subdivisions of said paragraph (b) that it was intended to mean a work of some importance that might properly be considered arduous or hazardous.’ It argues that it would be contrary to common knowledge of the kind of instruction given in such an institution to regard a manual training school as an enterprise of this character.
“The business in which the school district was engaged was the conducting of a high school, including, among others, a manual training department. It is not unreasonable to regard such an enterprise as a work of some importance, which might even be regarded as arduous. When in the conduct of that enterprise the employees are required to engage in the handling and operation of machinery so dangerous that the statute requires for the protection of employees that it shall be so guarded and located as not to injure them, it may also be regarded as attended with some degree of hazard. It is a matter of common knowledge and general remark that a buzz-saw is a dangerous thing to deal with.” And the court in conclusion directed the circuit court to set aside the decision of the industrial commission and remand the cause to the commission, with directions to hear it on its merits.

From the conclusion of the Supreme Court it would seem that the manual training department of the high school was an enterprise which brought it within the terms of the Workmen’s Compensation Act, and this would apply with equal importance to the provisions of the statute under the terms of which employment of the plaintiff was had, namely that the enterprise conducted by the University brought it automatically within the terms of the provisions of the Workmen’s Compensation Act, and by employing more than two employees in the enterprise or business it was conducting in the distribution of a commodity by the motor driven vehicle used to deliver its milk products, we are of the opinion that the plaintiff was an employee and subject to the provisions of the Workmen’s Compensation Act.

The University of Illinois filed with the Illinois Industrial Commission an Employer’s written acceptance of the Illinois Compensation Act, wherein it accepts the provisions of the Workmen’s Compensation Act of Illinois to provide and pay compensation for accidental injuries to employees in accordance with the terms thereof. This written acceptance is signed by the Board of Directors of the University of Illinois, but is not further identified or signed by .any member of the Board. This so-called acceptance is dated at Urbana, Illinois, February 11, 1929, and at the time the insurance was taken out by the University it was insured against damages to its employees for injuries sustained in the course of their employment, as provided by the Act. The policies for this purpose were issued by the United States Fidelity & Guaranty Company and the Indemnity Insurance Company of North America. These policies were in force from February 11, 1929, until sometime after September, 1930, and were issued by the companies after the election to be bound by the Workmen’s Compensation Act was filed by the University of Illinois.

This action of the University of Illinois was in compliance with ch. 48, par. 201 of sec. 1, which is:

“That an employer in this State, who does not come within the classes enumerated by section three (3) of this Act, may elect to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and thereby relieve himself from any liability for the recovery of damages, except as herein provided.
“ (a) Election by any employer to provide and pay compensation according to the provisions of this Act shall be made by the employer filing notice of such election with the industrial commission, or by insuring this liability to pay compensation under this Act in some insurance carrier authorized, licensed or permitted to do such insurance business in this State.” And so from the facts as they are stated above, the University of Illinois had elected to come within the provisions of this Act by the filing of such election with the Industrial Commission and by having issued to it the policies of insurance, the effect of which would be that the employee of such employer, as a part of his contract of hiring, shall be deemed to have accepted all the provisions of the act, unless the employee shall file a notice to the contrary with the Industrial Board. This is covered by (c) of the same section, wherein it is provided:
“(c) In the event any employer mentioned in this section, elects to provide and pay the compensation provided in this Act, then every employee of such employer, as a part of his contract of hiring or who may be employed at the time of the taking effect of this Act and the acceptance of its provisions by such employer, shall be deemed to have accepted all the provisions of this Act and shall be bound thereby unless within thirty (30) days after such hiring or after the taking effect of this Act, and its acceptance by such employee, he shall file a notice to the contrary with the industrial board, ...”

It would follow from the provisions of the Workmen’s Compensation Act that the University of Illinois having accepted and elected to come within the provisions of this Act, the employee, Jack Calvert shall also be deemed to have accepted the provisions of the Act and be bound thereby, not having filed a notice to the contrary with the Industrial Commission within the time limited by the provisions of this section.

The Supreme Court in the case of Edmonds v. Industrial Commission, 350 Ill. 197, in passing upon the question of an employer’s liability to pay compensation, though not engaged in an enterprise subject to the provisions of the Workmen’s Compensation Act, said:

“While the maintenance of a home or residence occupied by its owner is under ordinary conditions not such an enterprise or business as brings its owner under the provisions of the Workmen’s Compensation Act, yet in this case the parties are under the act because Edmonds had insured his liability to pay compensation with a company authorized to do such insurance business in this State. Under the provisions of section 1 of the act (Smith’s Stat. 1931, chap. 48, par. 138) this insuring of his liability to pay compensation under the act was tantamount to an election to be bound under the..act as an employer.”

Therefore, if' we apply the reasoning of the Supreme Court to the instant case, we find that the University of Illinois, and also the-plaintiff, who was an employee of the University, are subject to the Workmen’s Compensation Act.

The provision of the act relied upon by the plaintiff that the statute does not apply is part of subparagraph 8 of sec. 3, par. 202 of the chapter above cited, where this language appears: '

“. . . Provided, nothing contained herein shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil, or stock raising, or to those who rent, demise or lease land for any such purposes, or to any one in their employ or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered. ’ ’

However, as indicated by our Supreme Court in the case above cited, even if the University was not subject to the Act because of the reason stated by the plaintiff, still by electing to accept the provisions of the act and by having insurance policies issued to protect the University from damages, the plaintiff would also be within the provisions of the act.

The University of Illinois is an institution of learning .and, therefore, is not an enterprise engaged in farming solely, and in the opinion of this court it is subject to the provisions of the Workmen’s Compensation Act,

The order granting a new trial is vacated and set aside and judgment is entered here for the defendant.

Order granting a neio trial is vacated and set aside and judgment here for defendant.

Denis E. Sullivan, P. J., and Hall, J., concur.

On Rehearing.

In the consideration of the rehearing granted to the plaintiff upon his petition there are two suggestions which we will consider, namely, whether the plaintiff was employed by the University of Illinois at the time of the accident in which he was injured, or was he carrying on the work for one of the drivers who failed to appear for the purpose of delivering milk.

When we considered the case, we said this is our opinion upon this question:

‘' The facts upon which the contention arose as to the nature of plaintiff’s employment by the University are not in dispute. The question is as to whether the plaintiff’s employment by the University on the day of the accident was such as would bar him from maintaining his action. It is hardly necessary to repeat the facts disclosed by the record on this question. The plaintiff worked as a driver of a motor driven car, delivering milk and kindred products for his employer, the University of Illinois. His employment was not a casual one; he was employed regularly and engaged in the usual course of his employer’s business at the time of the accident. Kelly v. Industrial Commission, 326 Ill. 320.”

The conclusion which we reached in the opinion was that by par. 202, sec. 3 of ch. 48, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 143.18, the University of Illinois was controlled by the Workmen’s Compensation Act, wherein under subsec. 3, the Legislature defined acts which would bring the employer automatically under the act. It is provided by section 3 as follows:

“The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:
“3. Carriage by land, water or aerial service and loading or unloading in connection therewith, including the distribution of any commodity by horse-drawn or motor driven vehicle where the employer employs more than two employees in the enterprise or business, except as provided in sub-paragraph 8 of this section.”

The plaintiff strenuously contends that at the time of the accident he was not employed in the service of the University of Illinois, but that he was carrying on an independent service for a driver who failed to appear on the morning in question to deliver the milk to the customers on this driver’s route, and that the plaintiff performed this service, but not at the direction of the University.

We are inclined to adhere to what we said in our opinion upon this question, but the defendant adds this quotation from the record, where the plaintiff testified as follows:

‘ ‘ It was customary among drivers there occasionally to take someone else’s route or relieve somebody else, to take it on. That was done with the knowledge and approval of the Dairy Department of the University. I don’t happen to remember the name of the boy. I made arrangements to take this boy’s route.”
“Q. Who was there at the time at the University that knew about it?
“A. Any of the proper authorities that had charge of the Dairy. Dr. Swerington, Dr. Ruehe or Dr. Tracy. They knew I was taking his route that morning and they didn’t object to that. It was customary for drivers to help each other and the University knew of it.”

So it appears from the facts in this cáse that the plaintiff was doing this work, and from his,, evidence the officials in charge of the dairy where .he. was employed knew he ivas talcing this route and did not object; that it was customary for the drivers' to help each other. The plaintiff contends that the facts as to how and where he was employed were facts for a jury. The facts as we view them are so clear, and the eyidence so uncontradictory, that there was nothing for the jury to decide. It became a question of law whether the plaintiff was engaged in service at the time, which under the provisions of the Workmen’s Compensation Act brought the University of Illinois automatically under its provisions, and we believe from a re-examination, what we stated in the opinion will be adhered to on this question.

The remaining question we wish to discuss is as to the written acceptance filed by the University of the provisions of the Workmen’s Compensation Act, together with the filed insurance policies, as outlined in the opinion. " ' ; '.

The defendant contends that the court did not admit the written acceptance by the University and the two insurance policies filed in evidence, but insists that the court would have the right to consider these .documents under ch. 110, par. 220, sec. 92 of the Practice Act; Jones Ill. Stats. Ann. 104.092, where it is provided by subsec. (c): “Order or permit the record to be amended by correcting errors or by' adding matters which should have been included”; and further by subsec. (d): “Permit such further testimony to be taken in or presented to the reviewing court as it may deem necessary, where evidence has been erroneously excluded or where there has been an omission of proof at the trial of some fact which, under the circumstances of the case, may subsequently be proved without involving any question for a jury and without substantial injustice to either party.” And counsel points to these subsections as providing for the court to consider the evidence which it contends was erroneously excluded.

The written acceptance of the terms of the Workmen’s Compensation Act was signed by printing thereon the name of the University of Illinois. Two insurance policies were filed, one of which was the Indemnity Company of North America, which expired by its terms; and the other, United States Fidelity & Guaranty Company, still in force at the time of the accident.

There is a serious question as to whether the court was justified in excluding these documents, but we are not prepared to say that where evidence has been excluded by the trial court, that the Appellate Court, by this provision of the Practice Act, would have jurisdiction to consider the evidence as if it had been admitted. From what we have said upon the question of the University being automatically under the Act, it will not be necessary to further consider the question of whether the court erred in refusing to admit in evidence the written acceptance by the University of Illinois; nor the filed insurance policies.

For the reasons stated upon the rehearing, we adhere to what we said in our original opinion, except as modified upon the question of whether the court erred in refusing to admit the written acceptance by the University of Illinois, wherein it elects to provide and pay compensation according to the provisions of the Workmen’s Compensation Act, and the refusal to admit in evidence the two insurance policies that were filed.

Opinion adhered to except as modified.

Denis E. Sullivan, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Irving Glassman, Appellee, v. George F. Keller, Appellant.
    Gen. No. 39,238.

      Heard in the third division of this court for the first district at the December term, 1936.
    Opinion filed June 30, 1937.
    Lederer, Livingston, Kahn, Adler & Adsit, of Chicago, for appellant; Harry H. Kahn and Sigmund Livingston, of counsel.
    Ryan, Sinnott & Miller and Max Krauss, all of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment in the sum of $35,000 entered by the court for the plaintiff in an action to recover damages for personal injuries sustained by Irving Classman, a minor.

The complaint consists of two counts. Count one avers that the defendant was guilty of the following-acts of negligence:

(a) So carelessly and negligently operated his motor truck that the bicycle of the plaintiff was caused to come in contact and collision with the same;

(b) Negligently drove said truck from an alley onto and across a sidewalk without sounding a horn or giving any other warning;

(c) Negligently operated the truck toward, up to and across the sidewalk line without keeping a reasonably careful lookout ahead;

(d) Negligently operated the said motor truck toward, up to and across'the sidewalk line at a high, dangerous and excessive speed, contrary to and in violation of sec. 22, ch. 95a, Cahill’s Ill. Rev. Stats. 1933.

Count two was withdrawn by the plaintiff.

The defendant denies each and every allegation of negligence and avers that the injuries which the plaintiff received as a result of the collision between his bicycle and the defendant’s truck were the result of the plaintiff’s own negligence and want of care on his part.

It appears from the facts upon which this action was based that Irving Classman at the time of the accident was nine years, three months and thirteen days old. He lived with his parents at 237 North Lacrosse avenue in a building on the southeast corner. He was in the fourth grade at the Spencer School located on Maypole and La Vergne avenues, about three blocks distant from his home. He was a bright boy for his age and possessed mental capacities, and had experiences in advanee of the average boy of his age. His marks in school were excellent before the accident, as well as at the time of the accident.

In going to and from school it was necessary for him to cross an alley and four streets. Plaintiff had had a bicycle for a period of a year or a year and a half, and was riding it at the time of the accident. He was familiar with the neighborhood where he lived, and had ridden the bicycle around the block almost every day, Avhen the weather would permit. He would usually •travel east on Fulton to Cicero, south on Cicero to Maypole, and west on Maypole to Lacrosse. Then he would go north again on Lacrosse back to the place from which he had started. In making this trip he Avould have to cross the alley where the accident occurred, and on April 14, 1935, the day of the accident, plaintiff left his home with his bicycle around 9:30 or 9:45 a. m. He took the usual route, went east on Fulton to Cicero and then traveled a block south on Cicero to Maypole. People were using the sidewalks, and Avhen he arrived at Cicero and before he turned south he slowed down, and when he came to the corner of Maypole and Cicero, before he turned to go Avest on Maypole, he slowed down to see if there were any people there, so that he would not run into them. In riding his bicycle he went around the block and did not get off the sidewalk. When he left Cicero and was going west on Maypole, he was riding close to the building, and knew that there was an alley between Cicero and Lacrosse which intersects the sidewalk on the north side of Maypole. The bicycle plaintiff was riding is known as a junior bicycle, and on the day in question when this accident occurred, the pavement on Cicero avenue was undergoing repairs. The west side of the street Avas being broken up, although the movement of traffic on Cicero avenue was not interrupted. A trench had been dug part way across the intersection of Maypole and Cicero avenues, so that it was not practicable for automobiles to turn from Cicero into Maypole. Plaintiff testified that at the time he approached the alley where the accident occurred, he listened for the warning of any vehicle that might be coming out of the alley; that he did not hear any noises or receive any warning of the approach of an automobile.

The truck in question was a large 10-wheel chain drive Sterling dump truck, weighing eight and one-quarter tons empty, and at the time of the accident was carrying a load of limestone screenings weighing 11% tons, a total weight of 40,000 pounds.

The controverted question seems to be whether this truck made considerable noise while it was being operated. Several witnesses testified that they could hear the noise made by the operation of the truck from a distance of 30 or 40 feet to 150 feet. The truck being operated at the time of the accident was owned by the defendant, who was in the trucking business and engaged in hauling* limestone screenings. The screenings being hauled were to be dumped at the corner of Maypole and Cicero avenues. The truck was driven north on Cicero avenue to the intersection of Maypole avenue, where the. driver stopped to ascertain where his load should be dumped. It appears that one of the men working there motioned to him to go north on Cicero and around the block to the west, to get to Maypole avenue, where the load was to be dumped. The truck driver proceeded up to Fulton street, turned west, but instead of going to the next street started back south down the alley, half a block west of Cicero avenue. This alley was 16 feet in width, and was paved. The load of screenings was to be dumped in Maypole avenue just east of the alley. As we have stated before, this street was in the process of construction.

As plaintiff came to the alley, he slowed down a little, and just as he arrived at the edge of the alley, the truck came out. No horn was blown. Defendant’s driver of this motor truck testified that he operated the horn at the time, which testimony is contradicted by the plaintiff, who testified that he started to listen as he approached within five or ten feet of the alley; that he could see nothing and heard nothing until he was two or three feet from the alley. At that instant the truck shot out of the alley, directly in front of him, and about a foot from the wall of the building on the east side of the alley. The plaintiff, in order to avoid colliding with the truck, turned towards the left about a foot or so, but was unable to avoid the collision and turned into the center or rear of the left front fender of the motor truck. Plaintiff was thrown to the ground and the truck ran on until his leg was pinched under the rear wheel. The driver threw on his brakes, which squeaked loudly. The truck was equipped with two rear wheel mechanical brakes. After the accident, and while the truck was still standing there, an examination was made by witnesses, which disclosed skid marks, the east one being 4% feet long, starting at the building line and extending south in the alley, the west one, 2% feet in length, starting two feet south of the building line, but ending parallel with the one first described. The motor truck driver immediately after the accident looked out, but did not get off the seat, reversed and backed the truck, three to five feet. The plaintiff, who had been knocked off his bicycle by the force of the collision, was lying with his left hand on the chain drive of the truck. His thumb had already been cut off before the truck came to a stop, and when the truck was backed, plaintiff’s hand was drawn into the sprocket, and the rest of it was cut off.

Eyewitnesses produced by the plaintiff testified that at the time of the accident the truck as it emerged from the alley was traveling at a rate of speed from 10 to 15 miles an hour.

The questions before us are solely ones of fact for a jury. However, in reviewing the case we shall consider the errors called to our attention, by the defendant and relied upon by him as justification for a reversal of the judgment.

Defendant contends that the truck did not run into the plaintiff, but the plaintiff ran with his bicycle into the side of the truck and collided approximately at the center of this motor truck.

From the evidence, the length of the truck appears to have been 20 feet, and at the time of the collision, the truck had passed approximately 10 feet of its length before the collision.

Counsel for the defendant cites a number of cases on the question of the rate of speed the motor truck was going at the time it passed over the sidewalk intersection at the place of the accident. This question is usually one of fact for a jury, and from an examination of the facts as they appear in the record, it was for the jury in this case to determine whether the truck was being operated at a rate of speed which would constitute negligent operation of the truck. The jury did so and found against the defendant, and we are of the opinion that there was sufficient evidence to justify the verdict of the jury. Ziraldo v. Lynch Co., 365 Ill. 197.

As to defendant’s contention that if there was failure to sound a horn and there was sufficient noise from this truck as it was being operated in the alley to warn the plaintiff of its approach, this too was a question of fact for the jury. While it is true that there was no evidence that plaintiff heard the noise or was given sufficient warning of the approach of the truck and' failed to heed the warning as given and thus was guilty of negligence, this of itself would not justify the court in weighing the evidence for the purpose of determining whether or not the plaintiff heard the horn or warning of the approaching truck,

Whether or not the driver of the motor truck, in reversing the motion and backing the truck after the accident, was negligent, was also a question of fact for the jury. However, that this truck by reversing was backed, and as a result of this collision the boy was injured, is not disputed, and we are unable to say that plaintiff was guilty of contributory negligence such as would warrant this court in holding that he could not recover. In this court it is a question of whether the verdict of the jury upon which the judgment was entered is against the manifest weight of the evidence.

The defendant contends that the plaintiff was not in the exercise of due care for his own safety. This boy at the time of the accident was nine years and three months old, and he attended school. In attending school he had to cross street crossings. At the time of the accident he was in the fourth grade. He had been riding this bicycle for some time. He attended the Spencer School, where he had been one of the pupils for a period of a year and a half, and accompanied his younger brother, 6% years of age, who attended the kindergarten in the same school. Sometimes he attended this school with a cousin who lived in the same building and attended the same school, and in coming and going to school, as we have before stated, he was obliged to pass over street intersections, as well as over this sidewalk intersection with the alley.

The rule of law applicable to boys and girls between the ages of 7 and 14 on the question of negligence is left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. Mashaliunas v. Chicago & W. I. R. Co., 318 Ill. 142. As a general proposition, the question of contributory negligence, in other words, want of due care, is one of fact for the jury, taking into consideration all the facts and circumstances shown by the evidence. The court will act on a question of fact as a matter of law only where no rational person would have acted as the injured person did, and the court would generally render a judgment for the defendant. Kelly v. Chicago City Ry. Co., 283 Ill. 640.

While it is true the plaintiff was required to exercise the care required of one of his age, capacity, intelligence and experience, still there was a duty imposed upon the driver of the motor truck in question, which was to exercise care in operating his truck through the alley, especially when passing over the intersecting sidewalk at the place where this accident occurred.

The defendant in this case contends that the plaintiff was guilty of negligence as a matter of law, because of the violation of a sidewalk ordinance, or, in the alternative, that the jury should have been instructed to consider the alleged violation as a question of fact. The trial court held that the ordinance had no application. The instruction which was offered, and refused by the court, is as follows:

“2. The court instructs the jury that at the time and place of the accident in question, there was in full force and effect in the City of Chicago the following ordinance:
“ ‘No person shall drive, push or draw any horse, wagon, cart, bicycle or other vehicle over any public sidewalk, or use, ride or drive any horse, wagon, sled or sleigh thereon, unless it be in crossing the same to go into a yard or lot where no other suitable crossing or means of access is provided, under a penalty of not less than One Dollar nor more than Ten Dollars for each offense. ’
“You are further instructed that if you believe from the evidence that at the time and place in question the plaintiff was riding a bicycle on a sidewalk in the City of Chicago in violation of said ordinance, and if you further believe from the evidence that such violation of the ordinance proximately contributed to plaintiff’s injuries, then the plaintiff would not be entitled to recover in this case and you should find the defendant not guilty.”

The purpose of this refused instruction was to advise the jury that if it found that the plaintiff, a minor in this case, was riding a bicycle on the sidewalk in the City of Chicago in violation of said ordinance, and if the jury further believed from the evidence that such violation of the ordinance proximately contributed to the injuries of the plaintiff then the plaintiff would not be entitled to recover.

The rule of law by which the jury is guided, in passing upon the facts submitted and in determining whether a boy or girl between the ages of 7 and 14 is guilty of negligence, is that it shall take into consideration the age, capacity, intelligence and experience of the child. This direction was omitted from the offered instruction. The Supreme Court in the case of Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482, states:

“In Maskaliunas v. Chicago and Western Illinois R. Co., 318 Ill. 142, it was held that the statute making it a misdemeanor to climb upon a railroad car without permission does not apply to a child under the age of ten years unless the presumption of the common law rule Avas overcome by proof as to the physical and mental capacity of the child.” Such being the rule, the instruction should have directed the attention of the jury to the fact that the ordinance — the subject of this controversy — did not apply to the plaintiff, who was of the age of 9 years and 3 months, unless the presumption of the common law rule was overcome by proof as to the physical and mental capacity of the child. The instruction as offered and refused did not comply with the rule we have outlined in this opinion, and therefore the court properly refused to give the instruction to the jury as presented by the defendant.

Counsel for the plaintiff argue and call our attention to the fact that the plaintiff was an infant of the age of nine years and three months, and not bound by the provisions of the ordinance in question, since penal statutes have no application to a child under the age of ten years. Par. 620, ch. 38, Illinois State Bar Statutes 1935; Jones Ill. Stats. Ann. 37.552, provides:

“An infant under the age of ten years shall not be found guilty of any crime or misdemeanor.” And the Supreme Court in Mashaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, heretofore referred to in this opinion, said:
“One of the principal contentions of appellant is that there is no evidence in the record tending to show that the absence of a fence along the right of way at the place in question contributed to or proximately caused the injury to appellee but that the evidence shows that the proximate cause of the injury was appellee’s own act in climbing onto the moving train. Appellee being-under ten years of age, the statute making it a misdemeanor to climb upon a railroad car without permission has no application to him. Notwithstanding this statute is general in its terms, it must be construed in connection with the statute declaring a child under the age of ten years doli incapax. (McDonald v. City of Spring Valley, 285 Ill. 52.) ”

We believe that the rule announced by the court is a proper one to follow, and the trial court not having included in the instruction that the jury should take into consideration the age, capacity, intelligence and experiences of the plaintiff, the instruction was erroneous and the court was fully justified in refusing to give the same as presented by the defendant.

The defendant contends that plaintiff having failed to establish his case, the court erred in refusing the peremptory instruction to find the defendant not guilty. We must bear in mind that upon the question of whether the plaintiff was guilty of contributory negligence the court must consider the age of the plaintiff. Upon this question we again quote from the case of Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, where the Supreme Court said:

“The law is clearly established by great weight of authority, that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. (Chicago and Alton Railroad Co. v. Becker, supra (76 Ill. 25); Lake Erie and Western Railroad Co. v. Klinkrath, 227 Ill. 439; City of Pekin v. McMahon, 154 id. 141; Rockford, Rock Island and St. Louis Railroad Co. v. Delaney, 82 id. 198; McEldon v. Drew, supra (138 la. 390); Lake Erie and Western Railroad Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980; City of Shownee v. Cheek, 40 Okla. 227, 137 Pac. 724; Hepfel v. St. Paul, Minneapolis and Manitoba Railway Co., 49 Minn. 263, 51 N. W. 1049.) The question whether appellee was, under the circumstances, in the exercise of ordinary care for his own safety at and immediately prior to the time of the happening of the accident in question was properly submitted to the jury. Union Pacific Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592; Lorance v. City of Ellensburgh, 13 Wash. 341, 43 Pac. 20.”

The defendant further contends that the argument of counsel for plaintiff was improper and prejudicial, and therefore erroneous. We have examined the quoted portions of the argument in the brief and are satisfied that the defendant’s rights were not prejudiced by the ruling of the court upon the objections offered to the argument of plaintiff’s counsel. We have considered the instructions elsewhere in this opinion and further comment is unnecessary.

The remaining question called to our attention is that the damages of $35,000 allowed by the jury and upon which allowance the court entered judgment is excessive. We must consider the age of the boy and the nature of the injuries sustained by him. The principal injury was the crushing of the left hand, resulting in the loss of all the fingers of the hand. There were also injuries to the right leg. There was a puncture at the right great toe, a crushing wound over the front of the right ankle an inch and a half in diameter, a similar crushing injury over the outer surface of the right leg, about one by two inches in size, another injury over the right lower portion of the right thigh, about three by four inches in diameter, a marked swelling of the right ankle and foot, together with a fracture of the lower end of the right tibia, about one and one-half inches above the. ankle joint. These wounds became gangrenous and sloughed away, and required frequent treatment and dressings for several months.

Plaintiff was in the hospital from April 14, 1934, until May 25,1934. He suffered pain, both from his hand and leg, and still suffered pain and tenderness in the hand as well as in the foot. The circulation in the leg was impaired. However, the doctor was of the opinion the leg would eventually return to normal, but stated that there was absolutely no way to tell when that would happen; that it depended on the recovery of the circulation.

Plaintiff’s doctor bill was $350; his hospital and nurse’s bill was $356.50.

What would be a proper amount of damages in a case of this character is of course for the jury to determine, and this court will not - consider the amount excessive unless it is not supported by the facts in the record, but from the facts as they appear in this case, we are of the opinion, that the amount allowed is not such as would convince this court that there was lack of facts of the nature of the injuries to sustain the. judgment for the amount. The judgment is accordingly affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hall, J., concur.


text:
    Chicago Title and Trust Company, Appellant, v. Chief Wash Company et al., Appellees.
    Gen. No. 39,248.
    Heard in the third division of this court for the first district at the December term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Defrees, Buckingham, Jones & Hoffman, Castle, Williams & McCarthy and Norbert B. Tyrrell, all of Chicago, for appellant; Vincent O’Brien, John Merrill Baker and Norbert B. Tyrrell, all of Chicago, of counsel.
    John A. Brown, of Chicago, for appellees.
   Mr. Justice Hebel

delivered the opinion óf the court.

The Chicago Title and Trust Company, successor trustee to Cody Trust Company, filed its complaint against the Chief Wash Company and others, as defendants, for the purpose of foreclosing a trust deed given to secure an issue of $65,000 of bonds which were executed and delivered by the Chief Wash Company, one of the defendants, the trust deed to secure the payment of the amount conveyed to the trustee, the real estate described and the building thereon constructed for the defendant’s business of doing laundry work. The Chief Wash Company answered and filed a counterclaim for the removal of the trustee and for damages against it on account of an alleged wrongful bringing of the coinplaint in this case.

The First National Bank of Ottawa, and many others claiming to hold all of the unpaid bonds of the issue, months after the filing of the complaint, filed their joint intervening petition, seeking the removal of the trustee, the appointment by the court of a successor, and an accounting. The plaintiff answered the counterclaim and the intervening petition.

The issues raised by the petition and answer were set for trial but those raised by the bill to foreclose, the counterclaim and the respective answers thereto were not set for hearing and are still pending.

The trial was had before the court, and resulted in a decree removing the plaintiff trustee and appointing a successor to whom the plaintiff was directed to surrender the trust property and to account.

Thereafter the plaintiff filed its two successive petitions, offering to resign the trusteeship and praying that the decree so entered be set aside, which petitions were denied by the court.

The appeal now pending in this court is from the decree of removal and appointment of a successor to the plaintiff, and direction to surrender the trust property to said successor trustee, and to account.

The defendant, Chief Wash Company, executed its $65,000 of bonds, which were sold by Cody Trust Company. These bonds were secured by a first mortgage trust deed upon the property therein described to the Cody Trust Company, as trustee. The property de-scribed in the trust deed was improved and was used solely by the defendant in the operation of its laundry business. The laundry equipment and machinery which had been purchased by the Chief Wash Company for $128,000, was separate and apart and not pledged to secure the payment of the bonds, but was subject to a chattel mortgage held by a finance company, to secure the unpaid balance of the purchase price, amounting to $59,000.

In December, 1933, Charles Albers was appointed receiver of Cody Trust Company, and later, on its behalf, resigned the trusteeship under said trust deed. The Chicago Title and Trust Company, which the trust deed named successor trustee, accepted the successor trusteeship, upon due investigation.

At the time of the acceptance by the plaintiff herein, defaults existed in the payment of three principal maturities of $1,500 each, which came due on June 1, 1933, December 1, 1933, and June 1, 1934. There was also a default in the payment of the interest instalments due on the same dates, respectively, in the sums of $1,680, $1,635 and $1,590, excepting as to $560, which had been paid on account of the interest coupons due June 1, 1933.

In February, 1934, the Chief Wash Company, upon a court order, obtained from the receiver of the Cody Trust Company its list of bondholders, and on February 16,1934, March 22,1934, and April 7,1934, communicated by letter with the bondholders in an effort to procure their assents to a plan of extension. A copy of the plan was submitted to the bondholders with the letter of April 7,1934.

On June 18,1934, the Chief Wash Company had procured a deposit of 80 per cent in amount of the outstanding bonds, at which time its attorneys wrote the Chicago Title and Trust Company, as trustee, and advised it of its extension proposal, of the appointment of The Trust Company of Chicago as depositary and of the assent to the plan as outlined in the letter of April 7, 1934, by the holders of 80 per cent of- the unpaid bonds, and called to the attention of the trustee the fact that under the terms of the trust deed, it was not required to foreclose unless 25 per cent of the bondholders demanded such action and pointed out that, under the circumstances, no such demand could be made, and therefore any foreclosure would be brought solely on the initiative of the trustee and at its peril.

On July 7, 1934, there being bnt 80 per cent of assents of the bondholders to the plan, the trustee, having obtained advice of its counsel as to its duty to act, without prior notice to the mortgagor and without any request from the bondholders, filed its complaint for foreclosure and for receiver, the said defaults still continuing. It does not appear from the record that at any time prior to the filing of the bill to foreclose did any bondholders or combination of bondholders request the trustee to refrain from acting for any reason.

The trust deed provides that in case of default in the payment of principal or interest, the trustee may (and upon the written request of the holders of 25 per cent in amount of the bonds outstanding shall) declare the principal of all of said bonds of whatsoever maturity at the time of such declaration outstanding and unpaid to be due immediately and may, without any action on the part of any bondholder and without the necessity of the possession of any of said bonds or interest coupons, institute proceedings to foreclose the trust deed in any manner provided by law.

The trustee, after the filing of the bill, promptly applied for a receiver, but its motion was continued to September 15, 1934, on condition that the mortgagor pay it $100 per month to be applied on taxes. This without prejudice to either party. Aside from filing a brief amendment to the bill, the trustee took no further action to prosecute the foreclosure but stood by to see whether the plan of extension would be consummated.

By September 15,1934, the date to which the motion for receiver had been continued, the owner had procured the deposit of all of the bonds except $800 par value thereof, and the motion for receiver was denied. Certain of the bonds had been purchased by the secretary and treasurer of the mortgagor corporation. It was ordered that the trustee pay on account of taxes the funds theretofore deposited with it under order of court pending disposition of the motion for receiver.

On October 6, 1934, all of the unpaid bonds having been deposited for the purposes of the plan, the Trust Company of Chicago caused appropriate indorsements to be made upon the bonds evidencing the extension of the time of payment thereof and attached appropriate extension interest coupons and to further evidence the extension joined in a supplemental trust indenture.

On October 18, 1934, Chicago Title and Trust Company furnished the attorneys for the Chief Wash Company a statement of the costs, expenses and charges incurred in connection with the trust and with the proceeding, which included the service charge for executing the proposed extension agreement and for certifying the extended bonds should it perform that service.

On February 18, 1935, the attorneys for the Chief Wash Company wrote the Chicago Title and Trust Company and stated that the charges so requested were unreasonable and exorbitant; that in view of the completed extension, the pending foreclosure case was now one for fees, which their client, the Chief Wash Company, was unwilling to .pay. They suggested that a great deal of time and expense could be eliminated if the Chicago Title and Trust Company resigned as trustee and dismissed the suit. They did not, however, offer to dismiss their counterclaim.

On February 21, 1935, the Chicago Title and Trust Company, in reply to the foregoing letter, concluded that its action as trustee in filing the complaint was in accordance with its duties and that in its opinion the court should pass upon the questions raised by the Chief Wash Company.

On July 12, 1935, the Chief Wash Company filed its amended and supplemental answer and counterclaim, setting up in substance the foregoing facts, including the consummation of the extension agreement subsequent to the filing of the complaint and alleging that Chief Wash Company has “heretofore demanded of the plaintiff that it dismiss and discontinue its said action of foreclosure but that said plaintiff has refused and still refuses to so dismiss and has demanded from the defendant that it pay the plaintiff certain fees, expenses of audit and other charges claimed to be due it in this action before it will dismiss the complaint.”

The amended and supplemental counterclaim shows substantially the same facts and alleges that by reason of the wrongful bringing of the complaint, defendant has been damaged in the sum of $200,000, for which it prays judgment and it also prays that the plaintiff be required to renounce and resign the successor trusteeship and that a successor be appointed; that the counterclaim and the answer of the plaintiff thereto is still pending and undisposed of.

On the same day, July 12, 1935, the First National Bank of Ottawa and others filed their intervening petition setting forth the fact that the extension plan was completed subsequent to the filing of the bill of complaint, and setting forth the acts of the trustee as above narrated, and praying for the removal of the trustee and the appointment of a successor.

In the discussion of the questions called to the attention of this court, it seems from the facts in the record that the controversy is altogether upon the question of the payment of fees and charges to the Chicago Title and Trust Company by the Chief Wash Company, one of the defendants, The amount in controversy consists of several items for which a bill was rendered by the Chicago Title and Trust Company as follows:

‘ ‘ October 18, 1934.
“Mr. Bichard A. Bierdemann,
33 North La Salle St.,
Chicago, Illinois
“Be: Chicago Title and Trust Co. vs. Chief
Wash Co.
“Dear Sir:
“Our fees in the above matter to date, including moneys advanced by the trustee, total $514.63, itemized as follows:
Paid for auditing the account of Cody Trust Co.................$ 89.00
Acceptance fee................... 100.00
Insurance fee.................... 25.00
Paid for recording resignation of Cody Trust.....................63
For services rendered in the foreclosure suit, including the execution of the proposed extension agreement and certification of extended bonds................... 300.00
$514.63
“I have discussed with Frank Madden the question of his fees and advancements in this proceedings, and he gives me a total of $774.75 itemized as follows:
Court costs advanced.............$ 70.75
Advanced for examinations of title. 54.00
Attorneys fees to date..'.......... 650.00
$774.75
“I am sorry this matter has been delayed.
“Yours very truly,
“Hal Gr. Gallimore,
Attorney
“Chicago Title & Trust Company.”

The total amount claimed is $1,289.38. This bill the principal defendant refused to pay.

The plaintiff insists that its action in filing* the foreclosure bill was proper and justified, and that the situation must be viewed as of the date the bill was filed, and suggests that the duty of the trustee to its cestuis que trustents is several, and the trustee is not at liberty to follow the wishes of a majority, and in the filing of this bill to foreclose, the trustee was bound to exercise reasonable care and prudence in doing so, and that it is not for the court to substitute its judgment for that of the trustee. Therefore, the refusal of the trustee to execute the extension agreement or to dismiss the bill was not ground for its removal.

The trustee, however, had knowledge that there was a movement on foot to extend the time of payment of the loan, which was secured by a trust deed under which the Chicago Title and Trust Company, as successor trustee, acted, and it had further knowledge that 80 per cent of the bondholders at the timé the bill was filed had consented to the plan of extension suggested by the defendant Chief Wash Company, a copy of which was inclosed in the letter of April 7, 1934.

■ There was no pressing need for the trust company to file its bill to foreclose. While it is true that the courts will not substitute their judgment for that of the trustee, still they will interfere where, from all the facts, it would appear that the trustee in filing the bill to foreclose did not act for the best interest of the estate but, in fact, was arbitrary. The question of good faith of the trustee is always before the court. The trustee should act for the best interests of. all the parties.

The situation before us is one which merits the consideration of the court in determining whether the trustee properly exercised its discretion in filing the bill to foreclose after it had received notice that 80 per cent of the bondholders had agreed to an extension of time of maturity of the loan, and during the pendency of the proceeding all of the bondholders joined in this plan of extension. It is our opinion that there is no evidence which would warrant the trustee in filing the bill to foreclose.

The trustee should always act for all the parties interested, and endeavor to bring about a situation which will preserve the estate. The trustee is never interested in the estate to the extent that it is necessary to take such drastic action as was taken in this case, wherein there does not seem to have, been any complaint by any of the parties — bondholders or otherwise — such as would warrant the filing of the foreclosure bill.

The trustee has called our attention to the fact that it had been advised that if the bondholders were unable to reach an agreement, it may be liable for failure to file the bill to foreclose, but it surely could not be said that the 80 per cent who agreed could complain because the trustee refrained from action awaiting the outcome of negotiations for the purpose of adjusting the matter between the parties in interest.

From an examination of the record we are unable to find any item or fact which would justify the filing of this bill to foreclose at the time it was filed. The fact that the trustee was advised by an attorney to file the bill may go to the good faith of the trustee, and although there was a default which might properly be considered in filing such bill, still this trustee had knowledge of the efforts of the parties through negotiations to extend the maturity of the loan, which fact would indicate that there was no extreme necessity of filing the bill to foreclose for the purpose it was filed.

The plaintiff calls our attention to the case of Sturges v. Knapp, 31 Vt. 1. The court, in discussing the duty of the trustee to act over the objection of a majority in number and amount of the bondholders in that particular case, said:

“They (the trustees) could not consult the entire body of eestuis que trust, and their duty being due to the body severally they were not at liberty to follow the advice or wishes of a majority, as they were still liable to the minority for faithful administration. . . . Having assumed the duty of faithful administration of the trust in behalf of the several owners of the bonds, they were not at liberty to shield themselves by anything short of showing the fact of such administration, or that they were excused by the owners’ unanimous consent from the performance of their duty under the trust. ’ ’

We quite agree with this general statement of the law. The trustee is to act for all of the bondholders, but it should act with discretion in so doing so as to refrain from causing any damage to the parties in interest. The plaintiff contends that not a single bondholder had requested the trustee not to bring foreclosure proceedings; on the other hand, it might be said that not a single bondholder had requested the trustee to act in instituting foreclosure proceedings.

The plaintiff further states that in its opinion the entire controversy has been caused by the vindictive feeling the Chief Wash Company had towards the trustee because it would not cooperate in forcing the bondholders into agreement on an extension proposal which was manifestly inequitable and unjust.

We are unable to find anything in the record which would justify this statement. It cannot be said that the bondholders in desiring to enter into an agreement for an extension were controlled by any act of the trustee. It is not the duty of the trustee to determine whether the plan accepted by the bondholders is inequitable and unjust.

The plaintiff finally concludes its argument by mak- • ing this statement:

“We wish the court to bear in mind that the Chicago Title and Trust Company is not taking this appeal merely to obtain an allowance of its fees and expenses. It was at all times willing to accept whatever the court would allow and upon payment thereof to resign the trust providing the whole proceedings, including the counterclaim for damages were dismissed. It objects to a finding that it has been guilty of officious conduct and a breach of trust, but even that standing alone might not have resulted in appeal.”

However, an appeal was taken, therefore it is the duty of the court to pass upon the questions called to its attention, and from all we have stated in this opinion, we believe the trial court was fully justified in entering the decree of June 5, 1936, removing the trustee. The decree is therefore affirmed.

Decree affirm-ed.

Denis E. Sullivan, P. J., and Hall, J., concur.


text:
    Henry Moehling et al., Appellants, v. Heirs or Devisees of Fred Vogt, Jr., Deceased, Defendants. Emma Vogt, Appellee.
    Gen. No. 39,256.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.

      Aribert F. Wild and Samuel L. Jacobson, both of Chicago, for appellants.
    Booth & Booth, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This cause is in this court upon the direction of the Supreme Court that it was without jurisdiction to consider the cause on appeal of the appellants (plaintiffs).

From the record, which was transferred to this court, it appears that the plaintiffs (appellants) Henry Moehling, George Wilson, and Charles Langhoff, as trustees of schools of Township 42, Range 10, Cook county, Illinois, are prosecuting an appeal from a decree entered in the circuit court of Cook county in the above entitled cause on February 6, 1936, by which decree a former decree entered in the same cause on October 8, 1935, was amended.

The plaintiffs in their official capacity, on May 21, 1935, filed their bill of complaint for the foreclosure of a mortgage. The complaint averred in substance that on May 10, 1929, Fred Vogt, fir., and Emma Vogt, his wife, executed and delivered their principal note in the sum of $2,500 and 10 interest notes; that they were the owners of the premises on which this mortgage was a lien and that on the same day, to secure the indebtedness, they executed, acknowledged and delivered their trust deed, which was filed for record on June 17, 1929, and by the trust deed conveyed the premises in question to secure the payment of the notes above described; that Fred Vogt, Jr., departed this life and no estate was probated; that default had been made in payment of interest, principal and taxes, and upon such default this suit of foreclosure was instituted; that the heirs and devisees of Fred Vogt, Jr., were made parties defendant to this bill, as were other persons interested, who were made parties defendant as “Unknown Owners.”

Defendant Emma Vogt and certain other defendants were personally served with summons, and the “Unknown Heirs and Devisees of Fred Vogt, Jr.,” and “Unknown Owners” were served by publication, as provided by law. On July 12, 1935, the defendants were defaulted for want of an appearance. Thereafter, on August 23, 1935, by stipulation, the default against Emma Vogt was set aside, and leave granted to her to file her answer without prejudice to a reference to a master theretofore made on July 12,1935.

On August 29, 1935, Emma Vogt filed her answer to the complaint, by which, under oath, she admitted the allegations of the complaint as to the execution of the notes and trust deed, and the waiver of homestead, and denied certain other allegations not material to the question before this court.

The master’s report filed on October 8, 1935, contained certain findings of fact and conclusions of law, including a finding that the trust deed was, on May 10, 1929, duly acknowledged by Fred Vogt, Jr., and Emma Vogt, his wife, including release and waiver of the right of homestead, and recommendation that a decree of foreclosure be entered by the court; that on October 8,1935, the court entered a decree directing that a sale of the property described in the decree be had in the event the indebtedness found to be due was not satisfied.

It also appears from the record that Emma Vogt, after a period of 29 days, was granted leave to file á petition to vacate and modify the decree of October 8, 1935, that the petition sets up the fact that from the face of the trust deed it appears it was acknowledged by Emma Vogt and her husband before a notary public, and states as a fact that such trust deed had never been acknowledged by either herself or her husband before a notary public, and that her attention was first called to this fact and disclosed from an examination of the record.

It further appears from her petition that she alleges she never released or waived her right of homestead in the premises, and that she intends to maintain and claim the same as her homestead for the maintenance of herself and her children; that in presenting this petition she and her attorney have acted with all possible expedition in presenting the facts, and that they have not been guilty of laches in presenting this matter for consideration of the court, and therefore petitioner prays that the court enter an order that the homestead rights of the petitioner be preserved by the court in whatever proceedings or decrees should be entered herein, and that the petitioner have such other relief as to equity should seem meet. To this petition is attached the affidavit of Emma Vogt, which was sworn to by her, as appears from the petition itself.

To the petition the plaintiffs filed an answer on December 5, 1936, denying the allegations of the petition and charging that the petitioner was not informed that the deed was not acknowledged until October 24, 1935. The answer further averred that the execution and acknowledgment of the trust deed was admitted by the sworn answer of Emma Vogt, and that the trust deed was admitted in evidence without objection after it was submitted to counsel for Emma Vogt. The answer also avers that the defendants, Fred Vogt, Jr., and Emma Vogt, did execute and acknowledge the said trust deed when the loan was made, and that Emma Vogt was not entitled to the relief prayed for in her petition.

The petition of Emma Vogt was amended on January 16 and January 17, 1936, from which it appears that the premises were owned by Fred Vogt, Jr., and occupied as a homestead; that he acquired title by inheritance through his father, and that upon the death of Fred Vogt, Jr., title passed to his wife and children, and that said wife and children continued to occupy the premises as a homestead.

The trial court entered the following findings in the amendment entered February 6, 1936, to the decree of October 8,1935:

“3. That the son of * Emma Vogt’s attorney on October 24, 1935, accidentally discovered that the trust deed being foreclosed herein as filed of record in the Recorder’s office of Cook County, Illinois, and as shown by the photostatic recording thereof in said office, bore no certificate of acknowledgment by the grantors therein; that prior thereto said attorney was not aware of said lack of acknowledgment; that he immediately informed said Emma Vogt thereof, and that she then informed him that neither she nor her deceased husband had ever acknowledged said trust deed or released or waived their homestead rights, and that she had never seen said trust deed from the time it was executed up to said 24th day of October, 1935; that said Emma Vogt thereupon with due expedition, filed her petition herein to vacate said decree; that at the original hearing before the Master, the attorney for plaintiffs was the only witness; that he testified under oath that said trust deed was duly acknowledged by the grantors before a Notary Public who duly attached his certificate of acknowledgment thereto, and was recorded in the office of the Recorder of Deeds; that said trust deed was by him introduced in evidence, bearing a certificate of recordation and of acknowledgment in due form and appearing on its face to be genuine and true.
“4. That the trust deed being foreclosed herein was dated and executed May 10, 1929, but was not recorded until June 17, 1929, up to which latter date the photostatic recordation establishes that it had not been acknowledged and that the owners of the property, Fred Vogt, Jr., and Emma Vogt, his wife, who had signed the trust deed, had not in fact acknowledged or released or waived the right of homestead as provided by statute. That it is clear from all the evidence that said deed was never in fact acknowledged before any person authorized to take acknowledgments and that the grantors never acknowledged that they released or waived said right of homestehd; that no genuine, valid or legal certificate of acknowledgment was ever attached to said trust deed; that the alleged certificate of acknowledgment purporting to have been taken by one Fred A. Sobering as a notary public, now appearing on said trust deed as introduced in evidence by plaintiffs’ attorney, was placed thereon after said trust deed was recorded and without the presence of the grantors, and without in fact taking their acknowledgment, and the Court finds that the same is without effect and was placed upon said trust deed after its execution and delivery and without right or authority, and that the statements contained in said purported certificate of acknowledgment are false and fraudulent and do not constitute in law a waiver or release of the right of homestead of said grantors.
“5. That at the time said trust deed was executed, said Fred Vogt, Jr., owned and occupied as a householder the land and buildings involved herein as a homestead and residence with his wife, the said Emma ■ Vogt, and their minor children, as his family, and so continued until his death January 7,1935; that prior to the execution of said trust deed he owned an undivided one-fourth interest therein and so occupied same; that by the death of said Fred Vogt, Jr., the title thereto passed to said Emma Vogt and their said four minor children, as his widow and heirs, and that they have so continued to occupy said land and buildings as a householder, as a homestead and residence from his death until the present time, during which time the said defendant, Emma Vogt, has been and now is the head of her family and a householder; that said Emma Vogt is maintaining and claiming the same as a householder as her homestead and residence for the maintenance and benefit of herself and her said minor children,”

The defendants ’ motion is to strike a part of the record filed on appeal which was filed and furnished by the trial court in compliance with an amended praecipe. A like motion was pending in the Supreme Court. This record contained a report of the proceedings had before the trial court, and the defendants contend that said report of the proceedings was not filed within the time limited by the statute and rules of the court, that is, Rule 1 of the Rules of the Appellate Court of the First District of Illinois, and Rule 36 of the Rules of the Supreme Court of Illinois.

The counter suggestions of the plaintiffs disclose that on February 6,1936, the decree from which the appeal was prosecuted was rendered. On February 25, 1936, the plaintiffs filed their notice of appeal. On March 3, 1936, the plaintiffs filed their original praecipe for record, specifying for inclusion therein certain designated portions of the record. The original praecipe failed, however, to specify for such inclusion the report of the proceedings at the trial. On May 1,1936, the plaintiffs filed an amended praecipe, specifying for inclusion the report of the proceedings at the trial, as well as certain other orders not entered at the time the original praecipe was filed. On May 9, 1936, 91 days after the rendition of the decree appealed from, and one day too late for the plaintiffs to comply with the rules of the court, the defendants moved to dismiss the appeal and to strike the amended praecipe from the record.

Paragraph 1 (a) of Rule 1 of the Rules of the Appellate Court of the First District, provides in part:

“In appeals taken directly to this court, the appellant shall within 10 days after the notice of appeal has been filed, prepare and file a praecipe with the clerk of the trial court, ... in which appellant shall designate what parts of the trial court record are to be incorporated in the record on appeal. And the appellee, . . . shall, within 5 days after being so served, file a praecipe for such additional parts of the record as he may desire to have incorporated in the record on appeal. . . .”

Buie 36 of the Supreme Court is identical with the rule of this court.

Notice of the appeal was filed in the trial court February 6, 1936. The original praecipe of the plaintiffs was filed March 3, 1936, and the controversy arises from the fact that the original praecipe did not specify any report of the proceedings had in the trial court. It appears that the record as prepared in compliance with the amended praecipe, was filed without leave of court. By that admission it appears that the record was filed after the time fixed for the filing of such documents.

Beferring again to the rules of the court, Buie 36, subdivision (2), paragraph (a) of the Supreme Court Buies, provides as follows:

“(a) When the praecipes do not specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court not more than 30 days after the notice of appeal has been filed.
“(b) When the praecipes specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court not more than 30 days after the report of the proceedings or agreed statement of facts has been filed.
“(c) Further time within which to file the record on appeal may be granted by the reviewing court, or by any justice thereof in vacation upon motion and affidavit showing good cause, and due diligence. Such motion and affidavit must be accompanied by enough of the record on appeal to show a final judgment or decree, a notice of appeal filed within the time limited by the Civil Practice Act, and proof of service of the notice of appeal, and the filing and serving of appellant’s praecipe for record, all within the time limited by the Civil Practice Act, and by these rules.
‘ ‘ Such motion shall be made before the expiration of the time fixed in this rule for filing the record on appeal.” A like rule governs the practice of this court, which is Rule 1, subdivision (2), paragraph (a).

From the record before us it appears that when the report of the proceedings was filed in compliance with the amended praecipe, the rules of the court were not complied with by the allowance of time within which to file said record in the court, and, for the reasons stated, that portion of the record showing the report of the proceedings of the trial court will be stricken.

In considering the questions so far as they are before this court upon the record filed within the time limited by the statute, the decree of the court indicates from its findings entered February 6, 1936, to the decree of October 8, 1935, that when the trust deed was filed of record in the recorder’s office of Cook county, there was not included in the deed a certificate of acknowledgment before any person authorized to take am knowledgments, that the grantors named in the trust deed released or waived any right of homestead, and that subsequently the trust deed as introduced in evidence contained a certificate from which it appeared that Fred A. Schering, as a notary public, after the deed was recorded, prepared the certificate of acknowledgment attached to the instrument in which the grantors waived their right of homestead.

The trial court had before it the facts upon which it based its findings entered of record as an amendment to the decree entered on October 8,1935, and we will assume that the evidence heard by the trial court warranted the amendment of the decree as it was amended by the findings of the court on February 6, 1936. For the reasons heretofore stated in this opinion, we have nothing before us which would aid in determining whether the court in. so finding had sufficient evidence before it to justify its action. The decree of the court as amended is accordingly affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., and Hall, J., concur.


author: Mb. Presiding Justice Denis E. Sullivan

text:
    James E. MacMurray, Appellee, v. Mortimer B. Flynn et al., Defendants. Appeal of Mortimer B. Flynn and Grace E. Flynn, Appellants.
    Gen. No. 39,197.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Frank H. Repetto and Charles J. Tressler, of Chicago, for appellants.
    Litsinger, Healy, Reid & Bye, of Chicago, for appellee; W. T. McNeill, of Chicago, of counsel.
   Mb. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree of foreclosure entered in the circuit court for the sum of $182,282.61 in favor of plaintiff, James E. MacMurray, and against defendants Mortimer B. Flynn and Grace E. Flynn, his wife.

The evidence discloses that on December 1, 1927, Mortimer B. Flynn and Grace E. Flynn, his wife, deeded the premises since foreclosed, known as 7200-7210 South Shore Drive, Chicago, Illinois, to secure their indebtedness of $140,000, and on that date they signed their note for $140,000, payable to the order of themselves and by them indorsed in blank, said note being secured by said trust deed. The trust deed and note were turned over to the Union Trust Company. Said note was due 7 years after date, with interest at 5% per cent per annum, payable on the first day of June and December of each year. The note became due December 1, 1934. As the interest became due on said note it was paid at the Union Trust Company’s offices in Chicago and taxes on the property were either paid or protested as they became due.

The evidence on behalf of defendants further discloses that on September 21,1933, more than 14 months before the principal note became due, James E. Mac-Murray, plaintiff, then the owner of said trust deed and note, entered into an agreement with Mortimer B. Flynn and Grace E. Flynn, defendants herein, whereby payment of the said note was extended as follows: $2,000 payable on the first day of December, 1934, and a like sum on the first day of June and December of the years 1935 to the first day of June, 1938, inclusive, and the sum of $124,000 on the first day of December, 1938.

The evidence on behalf of defendant further discloses that the agreement for extension provided for 10 interest coupon notes, securing the interest on said principal note at the rate of six per cent per annum and payable semiannually on the first day of December and June with interest at the rate of seven per cent per annum, after maturity; that the first of these interest notes was for $4,200 due June 1,1934; that the last one was for $3,720 due December 1, 1938, the amounts varying in accordance with the amount of the principal note then outstanding; that the extension agreement also provided that the other terms of the original trust deed were to remain in full force and effect.

The evidence for defendants further discloses that throughout the year 1934, payments in the amount of $6,697.74 were made by the defendants to the plaintiff under this extension agreement. In January, 1935, the plaintiff by his representative, Kenneth Gr. Anderson, agreed with the defendants that payments made in 1934 would be considered as a return of principal, and all interest be waived, provided the defendants would pay $1,000 a month to the plaintiff. In accordance with the first agreement, these monthly payments of $1,000 each were to be made on the 10th day of each month; that if said payments were made monthly, up to the close of 1935, the 1935 payments were to be credited as a return of principal and all interest waived. Subsequently, the date for the payment of these monthly payments of $1,000 each was extended to the 15th of the month and later until the 20th; that early in March, 1935, the defendants, through their attorney, inquired of the plaintiff’s representative for definite statements as to how the plaintiff had treated the 1934 payments in his income tax return for 1934, as the defendants would of necessity, have to treat their federal return in the same manner and defendants were assured that the plaintiff had treated the 1934 payments as a return of principal in his income tax return; that this was not altogether “altruistic” on the part of plaintiff, as his income necessitated his paying income tax in the 48 per cent bracket and that plaintiff was convinced that, ultimately, lie would have a substantial loss on the principal of this mortgage and that it would be better for him, so far as his federal income tax was concerned, to take the loss each year, rather than take the entire loss to be deducted, in any one year; that payments were made by defendants to plaintiff of $1,000 monthly in 1935 to June 30, 1935; that plaintiff had repeatedly talked with defendants about the real estate taxes on this building which had not been paid; that defendants were, with plaintiff’s consent and approval, working on these tax matters with the Cook county officials to get the taxes adjusted and have the penalties removed and get the property placed under the so-called six-year extension plan; that plaintiff repeatedly told defendants to get the taxes reduced and adjusted as soon as possible.

From the evidence before us it is quite apparent that agreements regarding the method and times of payment were more in the nature of forbearances by the plaintiff in an endeavor to permit the defendants to have more time in which to make their payments. There is no claim that any consideration moved from the plaintiff to the defendants for the verbal extensions of dates of payment.

It is further contended by defendants that the claimed failure of the plaintiff to make a proper return of his federal income tax and also his personal property tax to the Assessor of Cook county, would preclude the plaintiff from recovery in this case as plaintiff was not coming into court with clean hands. In order to invoke the “clean hands” doctrine in a court of equity, the wrongful conduct complained of must relate to the transaction and be directly connected with the matter in litigation, and that it has to some degree affected the equitable relations between the two parties, arising out of the transaction concerning which the litigation is being had.

In the case of Fagan v. Rootberg, 320 Ill. 586, the court at page 594, said: “While it is a maxim in equity that he who comes into a court of equity must come with clean hands and one who does inequity cannot have equity, this maxim is limited in its application to cases where the substance of the thing is inequitable and the inequity applies to the particular subject matter. The maxim does not apply to every unconscientious or inequitable conduct on the part of the plaintiff but is confined to misconduct in regard to and connected with the matter in litigation, so that it has in some measure affected the equitable relation subsisting between the two parties and arising out of the transaction. ’ ’

We do not believe that the defendants were concerned in such a way that the alleged failure of the plaintiff to make a proper return of his federal income tax, or a proper return of his personal property tax schedule, as would justify them in setting same forth as a defense in this case. Such alleged misconduct did not grow out of nor could it be a proper matter for litigation in this action. The cases cited by counsel for defendants are not in harmony with the rule laid down by the courts of this State. Messenger Pub. Co. v. Mokstad, 257 Ill. App. 161; Carpenters’ Union v. Citizens’ Committee, 333 Ill. 225; Anisfield Co. v. Crossman & Co., 98 Ill. App. 180; Cohn v. Pitzele, 117 Ill. App. 342, affirmed in 217 Ill. 30; Consumers Co. v. Parker, 227 Ill. App. 552.

In Carpenters’ Union v. Citizens’ Committee, 333 Ill. 225, the court at page 250, said:

‘ ‘ The rule that a complainant must come into equity with clean hands means that he must do equity as respects the defendant’s rights in the particular matter of the suit. (1 Pomeroy’s Bq. Jur. sec. 307.) The rule does not go so far as to prohibit a court of equity from giving its aid to a bad or a faithless man or a criminal. The dirt upon his hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction his hands are as clean as the court can require. ’ ’ So, in this case, whatever may have been plaintiff’s conduct in their transactions, we do not see that they are involved in the particular matters of this suit. In the particular matter at hand, we cannot find any real defense to the foreclosure of the mortgage. The money was borrowed and the agreement, as provided in the trust deed.and the extension thereof, to pay the taxes, interest and insurance was not observed. The money is still due and owing and the defendants are in default. We think the contention and argument of counsel for defendants is quite beside the point. The terms of the trust deed and extensions, as we have already stated, were not observed and the plaintiff had a right to the return of his money according to the terms of the note and trust deed. Defendants had a full opportunity to present any matters of real substance as a defense to this law suit but have not done so. We think the report of the master and the decree of the trial court were fully supported by the evidence produced and the defendants have offered no reason in law why the money due the plaintiff should not be paid.

For the reasons herein given the decree of the circuit court is hereby affirmed.

Decree affirmed.

Hebel and Hall, JJ., concur.