text:
    The People of the State of Illinois ex rel. William T. McCoy, Appellant, v. James B. McCahey et al., Appellees.
    Gen. No. 39,879.

      Opinion filed June 29, 1938.
    Tolman, Chandler & Dickinson and Bell, Boyd & Marshall, both of Chicago, for appellant; Henry P. Chandler and Thomas L. Marshall, of counsel.
    Richard S. Folsom, of Chicago, for appellees; Frank S. Righeimer, Ralph W. Condee, Frank R. Schneberger and H. Meyer Simborg, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county, striking petitioner’s petition for writ of mandamus. The original petition was filed on June 2, 1937, an amended petition upon which the hearing was had, was filed on September 11, 1937, and the order dismissing the petition was entered October 4, 1937.

By the petition as amended, William T. McCoy seeks to be reinstated and restored to his position as principal of the Bowen High School in the city of Chicago, and to the salary of such position, and that he be paid certain amounts of salary as principal of the Bowen High School, alleged to be due him since March 9, 1937. He alleges that he was appointed principal of the Bowen High School on August 26, 1931, and acted in that capacity until March 9, 1937, upon which latter date he was removed from the position as principal of the Bowen High School without a hearing, and on that date made principal of the Beidler' Elementary School, and that since March 9, 1937, he has received the salary as principal of the Beidler Elementary School.

It is the claim of petitioner that as principal of the Bowen High School, he had acquired a permanent tenure in that position, from which he was subject to be removed only for cause and after a hearing; that the purported transfer to the Beidler Elementary School, which is a lower position, was in effect a removal from his position as high school principal, and being made without- stated cause and without a hearing, was contrary to the statute and illegal. Defendant’s theory is that there is no such position in the Chicago School system as a high school principal; that there is a position as principal, applicable without distinction to high schools and elementary schools, between which transfers of principals may be made by the superintendent of schools with the approval of the board of education at will; that the position held by the plaintiff was the position of principal only, and .consequently that his shift from principal of a high school to principal of an elementary school was not a removal. The defendants also urge that the plaintiff is barred from relief by laches.

On the question as to whether or not petitioner has been guilty of laches in not asserting his rights sooner, and in accepting his salary in the elementary school and apparently acquiescing in the transfer to that school, he cites the case of Funkhouser v. Coffin, 301 Ill. 257, as authority for the proposition that the Supreme Court has arbitrarily fixed a period of at least six months after removal of a civil service officer or employee within which action for reinstatement may be instituted. In that case, the petition was filed to review the finding of the civil service commission by certiorari. We do not agree with counsel that the Supreme Court has there, or anywhere asserted, or intended to assert, any such rule, and we are of the opinion that where the relief sought by a civil service employee is by writ of mandamus, as is the case here, the circumstances in each case must determine the question as to whether or not there has been delay in instituting the proceeding.

We will take judicial notice of the fact that at the time petitioner was transferred from the Bowen High School to the Beidler Elementary School, the Chicago public schools were in session, and the record indicates that upon the transfer of petitioner, another principal was appointed to the Bowen High School, and that such principal served and received the salary allotted to such position. Petitioner acquiesced in the transfer and received the salary as principal of the elementary school, from March 9, 1937, to May 22, 1937, before he made any protest. On the latter date, he notified the president of the board of education of the city of Chicago that he protested against his removal from the position he had held for more than five and one half years as principal of the Boiven High School, and against the reduction in his salary, but he made no effort to enforce any claimed rights until the original petition for mandamus was filed on June 2, 1937, which was apparently insufficient, and the amended petition was not filed, as hereinbefore stated, until September 11, 1937. The order dismissing his petition was entered October 4, 1937, about seven months after the transfer was made.

In Kenncally v. City of Chicago, 220 Ill. 485, a petition for mandamus was filed in the circuit court of Cook county against the city of Chicago by one James Kenneally, a civil service employee, seeking his reinstatement as policeman, upon the theory that he had been wrongfully omitted and excluded from the payroll of the police department of the city of Chicago, since March 14, 1898. Because of laches, the Supreme Court, on appeal, held that he was not entitled to the writ, and while in that case there was a longer delay before the petition for mandamus was filed, than in the instant case, the statement of the Supreme Court bears, directly upon the question of plaintiff’s right to relief here. The Supreme Court there said:

“In addition to what has been said, it is clear that the appellant has been guilty of laches in not sooner presenting his application for restoration to the position, which he claims. ‘The granting of the writ of mandamus is discretionary with the court in view of all the existing facts, and with due regard to the consequences which may result.’ (People v. Ketchum, 72 Ill. 212; People v. Board of Supervisors of Adams County, 185 id. 288). In People ex rel. v. Board of Supervisors, 185 Ill. 288, we said (p. 293): ‘Courts, in granting or refusing writs of mandamus, exercise judicial discretion, and are governed by what seems necessary and proper to be done in the particular instance for the attainment of justice. Courts, in the exercise of wise, judicial discretion, may, in view of the consequences attendant upon the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right for which mandamus is an appropriate remedy. ’ It has been said that ‘the writ is not granted as a matter of absolute right, and where it can be seen that it cannot accomplish any good purpose, or that it will fail to have a beneficial effect, it will be denied. ’ (Cristman v. Peck, 90 Ill. 150; People v. Lieb, 85 id. 484; Illinois Watch Case Co. v. Pearson, 140 id. 423). It has also been held that the writ of mandamus, being a discretionary writ, will only issue in a case where it appears by law that it ought to issue, and the court will not order it in doubtful cases. (Commissioners of Highways v. People, 4 Ill. App. 391.) In People ex rel. v. Davis, 93 Ill. 133, we said: ‘The court exercises a discretion in granting or refusing the writ, and, if the right be doubtful, it will be refused. ’ It has been held that the writ will be refused where the granting of it will disarrange the public service. (People. ex rel. v Palmer, 38 N. Y. Supp. 652). In People ex rel. v. Collis, 39 N. Y. Supp. 698, it was said: ‘Without considering or determining the other questions raised upon this appeal, it seems to us the order appealed from should not have been made by reason of the delay and laches on the part of the relator in demanding reinstatement in the office, from which he had been discharged, and in applying for a mandamus to compel such reinstatement. . . . It is manifestly unfair, where there is disagreement as to the propriety or legality of the discharge, that the relator should lie still, and allow another person to occupy the position from which he has been removed, and draw pay for his services therein, and, after more than four months has elapsed, that he should be allowed to have this remedy by mandamus to be reinstated in office, and recover compensation for services therein, which he has not performed, and which he has for a long time, without objection, permitted another person to perform, and be paid for. ’ This language is precisely applicable to the case at bar.” (Italics ours.) Under the rule as here stated by the Supreme Court, we conclude that petitioner was guilty of laches.

Section 186, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 100.661] provides that:

“No teacher or principal who has been or shall be appointed by said board of education shall (after serving the probationary period of three years specified in Section 138 of this act) be removed except for cause, and then only by a vote of not less than a majority of all members of the board, upon written charges presented by the superintendent of schools, to be heard by the board, or a duly authorized committee of the same, after thirty days’ notice, with copy of the charges, is served upon the person against whom they are preferred, who shall have the privilege of being present, together with counsel, offering evidence and making defense thereto.” (Italics ours.)

Section 161, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.180] entitled “Schools,” is as follows:

“A board of three examiners is hereby constituted, whose duty it shall be to examine all applicants who are required to hold°certificates to teach and the board of education shall issue gratuitously to those who pass a required test of character, scholarship and general fitness, such certificates to teach as they are found entitled to receive. Such board of examiners shall consist of the superintendent of schools together with two persons approved and appointed by the board of education upon the nomination of the superintendent of schools. The board of examiners shall hold such examinations as the board of education may prescribe, upon the recommendation of the superintendent of schools and shall prepare all necessary eligible lists, which shall be kept in the office of the superintendent of schools and be open to public inspection. Members of said board of examiners shall hold office for a term of two years. Appointments and promotions of teachers, principals and other educational employees shall be made for merit only, and after satisfactory service for a probationary period of three years, (during which period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the superintendent of schools), appointments of teachers and principals shall become permanent, subject to termination by compulsory retirement at the age of sixty-five years, and subject to the rules of the board concerning conduct and efficiency, and subject to removal for cause in the manner provided by section 161 of this Act: 1 Provided, however, that in determining the duration of the probationary period of employment in this section specified, there shall be included the time of past service of all teachers and principals and other educational employees who are in the schools at the time, or who have been therein within five years immediately preceding the time this Act goés into effect: And further provided, that when any teacher or principal, who has been promoted to the position of assistant, or district superintendent or a member of the board of examiners, is relieved of the duties of such position, such person shall be reinstated in the position from which he was promoted. The words ‘teachers and principals’ shall be construed to include all members of the teaching force except the superintendent of schools, assistant and district superintendents and members of the board of examiners. [As amended by Act filed July 11,1935. L. 1935, p. 1937.] ’ ’

On December 9, 1925, the board of education of the city of Chicago adopted certain rules, which, as stated in the case of Armstrong v. City of Chicago, 247 Ill. App. 584, were known as the “Emeritus” rules, wherein it was recited, among other things, that “hereafter no member of the teaching force shall be continued in class room or supervisory duties who shall be more than seventy years of age. ’ ’ By appropriate proceeding, two high school principals, together with certain other principals and teachers sought to enjoin the enforcement of these rules, and to cause the restoration of the complainants to positions from which they had been removed. The trial court denied the relief sought, and on appeal this court held that the board of education of the city of Chicago may pass reasonable rules as to the personal conduct and efficiency of principals, teachers, etc., and the permanency of the tenure of such employees would be subject to such rules and that they could be retired or removed for violation thereof after preferment of charges and hearing had, but that the board may not retire and in effect remove all the principals or other employees of a class solely on the ground that each individual in that class because of reaching a certain age would be presumed to be inefficient, without preferring* charges or affording a hearing*. In that case, cited by petitioner in the instant case, as sustaining* his contention here, the order of this court reversed and remanded the cause with the direction that the trial court enter a decree directing the board of education to restore complainants to their respective positions as principals and teachers in the Chicago public schools as of the date of their retirement or removal therefrom. It will be noted that there was no direction that the two high school principals be returned to any position other than “principal.”

As stated, defendant contends that there are no different grades of principals of schools, and that there is no such position in the public schools of Chicago as “Principal of Bowen High School or high school principals.” Section 130, ch. 122, par. 153, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.165], entitled “Schools,” provides that “Appointments, promotions and transfers of teachers, principals, assistant and district superintendents and all other employees in the teaching force, shall be made ... by the board of education, only upon the recommendation of the superintendent of schools, unless it be by a two-thirds vote of all the members of the board.” It is insisted by defendant that the word “principals” in this statute means principals of both elementary and high schools.

Attached to petitioner’s petition is an exhibit entitled, “Rules of the Board of Education of the City of Chicago.” Section 2 of article 1 of this document is as follows:

“Sec. 2 (Composition of Education Department.) The Education Department shall include the Assistant Superintendents, the Special Assistant to the Superintendent, the District Superintendents, Directors, Supervisors, Board of Examiners, Superintendent of Parental School, Superintendent of Chicago and Cook County School for Boys, Presidents of Colleges, principals of schools, special teachers, teachers, and employes working under the general direction of the Superintendent of Schools. All such persons shall be elected or appointed subject to the rules of the Board of Education, which are now or hereafter may be in force, and also subject to the provisions of the Statutes of the State of Illinois.”

Section 1 of article 3 of this document entitled, “Principals and Teachers,” is as follows:

“Sec. 1. Principals of schools are the responsible administrative heads of their .respective schools, and are charged with the organization, supervision and administration thereof. They shall establish and enforce such regulations, not contrary to the rules of the Board of Education or the regulations of the Superintendent as may in their judgment be necessary for the successful conduct of their schools.”

Section 2 of article 5 of this document is as follows:

“(Assignments). All assignments of teachers and principals shall be made by the Superintendent from the eligible lists.”

Sections 1 and 3 of article 8 of this document, entitled ‘1 Certificates, ’ ’ are as follows:

“Sec. 1. Certificates for various positions on the teaching force shall be issued to persons who may become entitled thereto as a result of examinations conducted with special reference to such positions, under the authority of the Board of Education. ...”
“Sec. 3. Ho person shall be appointed to any position in the teaching force without the appropriate certificate therefor, issued in accordance with Section 1 of this article, nor shall any person he advanced to a higher position than that specified in the certificate without additional examination and proper certificate for such advanced position.” (Italics ours.)

Section 7 of said article 8 is as follows:

“There shall be at least two groups for the classification of all teachers and elementary principals corresponding to their various salary schedules. Promotion from the lower to the upper group shall be by examination or college credits approved by the Board of Examiners, the requirements for which shall be uniform within each class of certificate.”

Petitioner, however, insists that “the position of high school principal is a distinct position in the Chicago school system, different from and superior to that of elementary school principal,” [italics ours] and cites as authority what is termed a “circular of information, ’ ’ issued by the board of education of the city of Chicago, dated August, 1936, which contains the following:

“Promotions affecting the salary rating. Grouping of principal and teachers. There shall be two groups of principals; of teachers in high schools; of teachers in elementary schools. The groups shall have different salary schedules. Promotion from lower to upper group, upon fulfilling the requirements, shall be by vote of the Board of Education, upon recommendation of the Superintendent.”

“Condensed salary schedule now in force. This salary schedule is subject to change during the school year 1936-37. (Promotion from lower to high group is obtained by examination or by five college credits).

“Substitutes are paid $6.00 per day in Elementary Schools and $7.50' per day in High Schools.

“Note — All figures quoted above are subject to approximately 25 per cent reduction for the year 1936-1937.”

“Superior” is defined by Standard Dictionary as, “belonging to a higher grade.”

We gather from petitioner’s brief that the principal ground given by the trial court for the dismissal of the petition was that, presuming that the contention of petitioner is correct, in that the position of high school principal is a higher position than elementary school principal, it then follows, as a matter of course, that under the rules of the board of education, before he could be advanced from the position of elementary to high school principal, an examination was required, which was not required of petitioner. Petitioner here strenuously insists that no such examination was required, and in this we believe he is inconsistent. If his transfer from elementary principal to high school principal was “to a higher position” without examination, then it Was in direct violation of sections 1 and 3 of article 8 of the rules of the board of education of the city of Chicago, hereinbefore set forth. Standard Dictionary defines “tenure” as “the fact, manner, or means of holding possession or control of that which is one’s own; a holding; as tenure of lands, tenure of office.” Petitioner could not acquire a permanent tenure to a position to which he was wrongfully appointed. However, we are of the opinion that the title “principal,” as used in the rules, applies equally to elementary and high schools, and that no examination was required for petitioner’s transfer, and we conclude that under and in conformity with its rules and the statute, the board of education may transfer a “principal” from the elementary schools to the high schools, or from the high schools to the elementary schools, as the best interest of the respective schools may require. We can arrive at no other conclusion than that the trial court was not in error in dismissing the petition. Therefore, the judgment of the superior court of Cook county is affirmed.

Affirmed.

Hebel, P. J., and Denis E. Stjiiivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hall

license: Public Domain

text:
    Celia Menard, Appellant, v. Bowman Dairy Company, Appellee.
    Gen. No. 39,886.

      Opinion filed June 29, 1938.
    Leopold Saltiel, of Chicago, for appellant; Irvin J. Moskal, of Chicago, of counsel.
    Montgomery, Hart, Pritchard & Herriott, of Chicago, for appellee; Louis E. Hart and L. Edward Hart, Jr., of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

Complainant filed a bill in the superior court of Cook county in which she charged that the defendant had maintained a nuisance near her home to the damage of her real estate, and prayed for an injunction.

On July 6, 1937, the court entered an order denying the petition of plaintiff to dismiss the cause “upon plaintiff’s costs,” and on July 8, 1937, on the motion of defendant, the court entered a decree dismissing the complaint for want of equity, “with costs to the defendant as taxed.” This is an appeal from both the order and the decree.

The bill was filed on August 11, 1931. The answer of defendant was filed on June 13, 1932, denying all of the allegations in the bill. On August 19, 1932, the matter was referred to a master in chancery, who, after hearing a great amount of testimony, made a report which included the testimony taken, together with his conclusions, wherein the master found that the material allegations of the bill had not been proven, and recommended that the bill be dismissed for want of equity. Thereafter, on October 17, 1934, the master served notice on the complainant to file objections to the report, and objections thereto were filed with the master on November 3, 1934. Thereafter, and after a hearing on the objections the master made a supplemental report. In this report, the master found that objections had been filed to the original report, and that after examining the same, they had been overruled. On July 2, 1935, an order was entered fixing the master’s fees at the sum of $616.50.

Chapter 110, par. 176, sec. 52 of the Practice Act, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.052], provides that:

“The plaintiff may, at any time before trial or hearing begins, upon notice to the defendant or his attorneys, and on the payment of costs, dismiss his action or any part thereof as to such defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, on the same terms, only (1) upon filing a stipulation to that effect signed by such defendant, or (2) on the order of the court or judge made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by consent of the defendant.” It will be noted that by this section of the act, it is provided that the plaintiff may, “at any time before trial or hearing begins,” dismiss an action “on payment of costs. ’ ’ Also, that after a hearing, the action may be dismissed only upon a proper showing.

Prior to the adoption of the present Civil Practice Act, the statute (ch. 110, par. 70, sec. 70, Cahill’s Ill. St. 1931) provided that:

“Every person desirous of suffering a nonsuit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.” None of the cases cited by plaintiff have any relation to the provisions of the Civil Practice Act.

In Words and Phrases, 2nd Ed., Vol. 2, page 832, under the title, “Hearing,” we find the following: “ ‘Hearing’ is technically applicable to chancery proceedings, and is used in contradiction to ‘trial, ’ which is properly applicable to law actions; but in modern usage the two words sometimes overlap in meaning. ‘Final hearing’ is sometimes used to describe' that stage of proceedings relating to the determination of a suit upon its merits, as distinguished from those of preliminary questions. However, ‘hearing’ is frequently used in a broader and more popular significance to describe whatever takes place before magistrates clothed with judicial functions and sitting without jury at any stage of the proceedings subsequent to its inception, and may include proceedings before an auditor. . . . McArthur Bros. Co. v. Commonwealth, 83 N. E. 334, 335, 197 Mass. 137.”

We are of the opinion that the word “hearing,” as used in the Civil Practice Act, and its bearing upon the • question of the right to dismiss a proceeding, applies to hearings before a master in chancery, and that plaintiff here had no right to have her bill dismissed without a stipulation or a proper showing, supported by affidavit.

In the instant case, it is also to be noted that the motion made by plaintiff to dismiss the bill and the order submitted, proposed that the bill be dismissed “upon plaintiff’s costs.” No offer was made, by plaintiff, to pay all the costs. Therefore, whether the case could be said to be on hearing or not, we are of the opinion that the court was correct in denying this motion. It is very evident from the language of the statute that it was never intended that the plaintiff should be allowed to dismiss her bill after a large bill of costs had accrued, through her doing, without paying them and for this reason alone, the court was right in denying her motion. The court was also right in entering the decree dismissing the bill for want of equity upon the master’s report, with costs to defendant.

The order and decree of the superior court of Cook county appealed from, are, therefore both affirmed.

Order and decree affirmed.

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


text:
    Joseph D. Teitelbaum, Appellee, v. St. Louis Fire and Marine Insurance Company, Appellant.
    Gen. No. 39,903.

      Opinion filed June 29, 1938.
    Thomas D. Huff, of Chicago, for appellant; Herbert A. Huff and Thomas M. Barger, Jr., of Chicago, of counsel.
    Joseph D. Teitelbaum, pro se.

   Mr. Justice Hall

delivered the opinion of the court.

After a trial in the municipal court of Chicago, the plaintiff was awarded damages in the sum of $169.75, for injuries caused to his automobile.

The automobile was parked in a vacant lot adjacent to a building, and the injury and damage to it was caused when a person either jumped or fell from the third story of this building and landed on the automobile. It is agreed that under the terms of the policy upon which the action is predicated, plaintiff is not entitled to recover if the “loss was caused by collision with any other object.” The only controversy between the parties then is whether or not the damage was caused “by collision with another object.” If the incident can be said to have been a collision, plaintiff cannot recover. If it was not a collision, he can recover. .

Standard Dictionary defines “collide” as follows: “To dash into each other, as two moving bodies; to meet and strike violently as trains or steamships.” “Collision” is defined as follows: “The act of colliding ; striking together; violent contact as trains or steamships.”

In Schussler v. Fort Dearborn Casualty Underwriters, 230 Ill. App. 581, this court held that insurance against loss by damage to an automobile by “collision” with any object, moving or stationary, includes loss sustained by damage to the automobile when it skidded while going down hill and struck a ridge of gravel, sand and clay about 12 inches high alongside the roadway but not in the beaten wheel path, thereby causing a wheel to collapse and overturn the car. In other words the plaintiff could recover for damage caused by “collision” under these circumstances. See also Orr v. Farmers Automobile Ins. Ass’n, 242 Ill. App. 135.

In Frieberger v. Globe Indemnity Co., 199 N. Y. S. 310, it was held that damage to an automobile from the fall of an elevator on which it was being lowered was covered by a policy indemnifying for damage to an automobile caused solely by accidental collision with another object, either moving or stationary, for “collision” means strictly the impact of objects, visible, tangible, concrete, and real entities, through anyone of such objects moving against the other, and the fact that the striking was mediate rather than direct, in that the floor of the elevator struck the pit and communicated the force to the automobile, was immaterial.

In National Fire Ins. Co. v. Elliott, 7 F. (2d) 522, the court held that where a fire and transportation automobile policy insured against perils of collision of the conveyance used to transport an automobile, and that when the automobile was being lowered from the second floor of a storage room to the ground floor, by elevator, and the elevator dropped and struck the bottom of the shaft, and the automobile was bent, broken and twisted, there was a “collision” of the elevator with the bottom of the shaft, within the meaning of the policy.

We are of the opinion that the injury to plaintiff’s automobile was caused by a collision as that term is defined, and that under the terms of the policy sued on, plaintiff cannot recover. Therefore, the judgment of the municipal court of Chicago is reversed and judgment is entered here against plaintiff for costs of suit.

Judgment reversed and judgment here against plaintiff for costs.

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


text:
    Nancy Gartin and Anna Mae Arnold, Appellees, v. Gladys Elta Gartin, Individually and as Executrix of Estate of Charles Newton Gartin, Deceased, Appellants.
    Gen. No. 39,947.
    Opinion filed June 29, 1938.
    Rehearing denied July 13, 1938.
    John B. Fruchtl, of Chicago, for appellants.

      Charles J. Trainor, of Chicago, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.

Gladys Elta Gartin, individually and as executrix of the estate of Charles Newton Gartin, deceased, appeals from a decree of the circuit court of Cook county, wherein the court ordered that the will of Charles Newton Gartin, deceased, executed on July 10, 1929, be revoked and held for naught, and that the order of the probate court admitting the will for probate, be vacated. The following stipulation entered into between the parties, was admitted in evidence by consent:

“That Charles Newton Gartin and the defendant herein, Gladys Elta Gartin, were married on the 8th day of August, 1915.

“That they lived together as husband and wife until on or about the 13th day of May, 1935. That no children were born in said marriage nor did said parties adopt any child or children.

“That on the 13th day of May, 1935, the said Gladys Elta Gartin filed her Bill for Divorce in the Circuit Court of Cook County against her said husband, Charles Newton Gartin, which case was numbered 35C 5795; that thereafter, to-wit, on May 14, 1936, said cause came on for trial in said Court, each side being represented by counsel; that said trial resulted in a Decree of Divorce entered on the said 14th day of May, 1936, which decree is still in full force and effect and has been in no manner modified, a copy of which decree is attached to this stipulation and made a part hereof and marked Exhibit ‘A.’ That following the entry of said decree, the plaintiff herein, Gladys Elta Gartin, entered into and upon possession of the personal property in the fourth paragraph of the decree specified.

“That no part of the alimony specified in the fifth and sixth paragraphs of said decree has been paid to the said Gladys Bita Gartin.

“That on June 14, 1936, the said Charles Newton Gartin died.

“That on the 10th day of July, 1929, the said Charles Newton Gartin executed a will, copy of which hereto attached and marked Exhibit ‘B.’

“That on the 18th day of June, 1936, the said Gladys Bita Gartin filed her petition in the Probate Court of Cook County for letters testamentary and produced the will so executed by the said Charles Newton Gar-tin on the 10th day of July, 1929, which was duly admitted to probate on the 10th day of August, 1936, and the said Gladys Bita Gartin was appointed executrix of said will and is still acting in that capacity.

“That at the time of his death, the said Charles Newton Gartin was possessed of three (3) insurance policies upon his life in each of which his estate was named beneficiary and subsequent to her appointment as executrix as hereinbefore agreed, she, the said Gladys Bita Gartin, collected upon said policies, the sum of $16,377.43, which she now holds as such executrix and which she now claims as her own under the terms and conditions of said will attached hereto as Exhibit ‘B’.” By the will, Gartin named defendant as the sole beneficiary.

It is insisted by plaintiffs that the will was revoked by implication. Defendant contends that in Illinois, a will cannot be so revoked.

By the decree of divorce referred to in the stipulation, the court found that the defendant in the divorce suit should pay and the plaintiff should receive and take a lump sum of $1,500, in full settlement for alimony and support, to be paid in instalments of $13 every week until that sum should be paid in full, or in the alternative that the defendant should pay plaintiff the sum of $1,200 within 30 days from the entry of the decree, together with solicitor’s fees, which sums the court ordered paid, and the order recited that plaintiff should accept the sum of $1,500 in instalments, as provided, or the sum of $1,200 to be paid as ordered, in full settlement and satisfaction of any claim she might have against defendant for support and alimony, either temporary or permanent, and of any interest she may have in the personal property of the defendant.

The reasons and arguments advanced by defendant as ground for reversal seem to have been considered and passed upon adversely to her contention, in the case of Phillippe v. Clevenger, 239 Ill. 117. In that case, the court held that a provision of a will devising land to a daughter of the testator, is revoked, by implication, by a subsequent conveyance of the land during the testator’s lifetime to the daughter, and is not revived when the testator, after such conveyance, reacquires the title to such land from the daughter, where the will was not republished in the manner provided by the statute for the execution of wills, and as a reason for its conclusion, the court said:

“The common law of England, so far as the same is applicable and of a general nature, is in force in this State with reference to the revocation and revival of wills, except in so far as it has been repealed by statute. (Rev. Stat. Chap. 28, sec. 1; Stetson v. Stetson, 200 Ill. 601.) It is, however, contended by Nettie F. Clevenger that the common law in regard to the revocation of wills by implication is repealed in this State by section 17 of the Wills act, (3 Starr & Cur. Stat. — 2d ed. — chap. 148, p. 4044,) which reads as follows: ‘No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law.’

“The section of the statute referred to has been in force in this State since the enactment of the Revised Statutes of 1845, and in a number of cases decided by this court since that time wills have been held to have been revoked, in whole or in part, by the acts of the maker of the will which do not fall within the provisions of said section 17, — that is, they have been held to have been revoked by implication. (Tyler v. Tyler, 19 Ill. 151; In re Tuller, 79 id. 99; Updike v. Tompkins, 100 id. 406; Duryea v. Duryea, 85 id. 41; American Board of Commissioners for Foreign Missions v. Nelson, 72 id. 465.) The ground upon which the courts hold a will to be revoked by implication is, that the acts of the testator subsequent to its execution show an intention inconsistent with the will, —in other words, his acts show an intention that his will is not to be carried out as originally drawn. In the Tyler case, where the marriage of the testator took place subsequent to the execution of his will and where there was no child or the descendant of a child, it was held, in the absence of facts arising subsequent to the marriage which showed an intention to die testate, that the will was presumed to be revoked by the marriage. To the same effect is Duryea v. Duryea, supra. We think it clear, therefore, that section 17 of the Wills act only applies to the revocation of a will where there is an express intention on the part of the testator to revoke a will, and that said section does not apply to the revocation of a will, or a part thereof, arising by implication of law from the acts of the testator which show such a change in the condition of his estate as to raise a presumption that he intended to revoke a part or the whole of his will. Section 6 of the English Statute of Frauds (8 Pickering’s Stat. at Large, p. 406,) which is, in substance, the same as section 17 of the Wills act in force in this State, was in force in England at the time the rule was established in that country, that a will, or a part thereof, could be revoked by implication. We are therefore forced to the conclusion that the doctrine of the revocation of a will, or a part thereof, by implication, is not abrogated by statute in this State.” It will thus be seen that the Supreme Court of this State has announced the doctrine that in Illinois, a will may be revoked by implication. Plowever, no case has been called to our attention by either counsel, wherein the Supreme Court of this State has passed directly upon the question as to whether or not a decree of divorce in which all of the property rights of the parties are attempted to be fixed and determined, acts as a revocation of the will of either of the parties, where the will was made prior to the divorce. The statute on wills of the State of Michigan is similar in every respect to the Illinois statute, except that the Michigan statute, as quoted in Lansing v. Haynes, 95 Mich. 16, provides, in terms, “for the revocation [of a will] implied by law from subsequent changes in the condition or circumstances of the testator. (Howard Statutes, page 5793).”

In Lansing v. Haynes, supra, the husband and wife were divorced and an agreement was entered into between them by which all their property rights were fixed and determined. In the agreement, no reference was made to a prior agreement to execute mutual wills made by the parties about 8 years before the divorce, by which each party agreed to devise to the other all of his or her property. In holding* that, under the circumstances, the decree of divorce acted as a revocation of the testator’s will, the Supreme Court of Michigan said:

“In Tyler v. Tyler, 19 Ill. 151, it is held that marriage, under a statute making the wife heir to the husband, and the husband heir to the wife, revoked the husband’s will made prior to the marriage, and disposing of his entire estate, without any provision for her; and this, too, though the marriage was without issue.

“By the decree of divorce in this case, the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter. There was, therefore, a complete change in these relations. . . . It is not, in my judgment, the natural presumption that, after the testator had settled with her, had conveyed to her a good share of his property, and they, by agreement, had terminated all their property, as well as their marital, relations, the will executed nearly 10 years before should remain in force, and operate upon his death as a conveyance of the remainder of his property to her, to the exclusion of his heirs. If this were so, then it would follow that, if he had children living, or a dependent mother or other dependent relatives, or a second wife without issue, his duties and obligations towards them must be set aside, in favor of a most harsh and unjust rule. The like result would follow where the husband had obtained a divorce from his wife on the ground of adultery, and she had become a common prostitute; or where the wife had obtained a divorce for a like reason, or because her husband had committed a felony, for which he was incarcerated in prison. To hold the will unrevoked under these circumstances would be repugnant to that common sense and reason upon which the law is based. I do not think the common law is so unbending as to lead to this result. ‘The reason of the law is the essence and soul of the law.’ ”

In the instant case, the will in question was executed more than six years prior to the divorce. The bill charges, and it is not denied, that after the divorce, Charles Grartin sought the will for the purpose of destroying it, but that he could not find it. How it came into defendant’s possession is not explained. Also, it is alleged in the bill, and admitted by defendant’s answer, that while the defendant here was originally named as sole beneficiary in the life insurance policies, that thereafter the beneficiary in these policies was changed by Grartin from defendant to his estate.

We are of the opinion that the court was not in error in holding that the will was revoked by implication of law, and in entering the decree from which this appeal is prosecuted. The decree of the circuit court of Cook county, is therefore, affirmed.

Decree affirmed.

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


author: Mr. Justice Denis E. Sullivan

text:
    People of the State of Illinois ex rel. Ernest Palmer, Plaintiff, v. State Life of Illinois, Defendant Below. In re Claim of Old Republic Credit Life Insurance Company, Appellant, v. H. B. Hershey, Appellee.
    Gen. No. 39,465.

      Opinion filed June 29, 1938.
    George Packard, Norman A. Nelson, Jr., Olson & Olson, and Thomas B. Gilmore, all of Chicago, for appellant; George Packard and Thomas B. Gilmore, of counsel.
    Benjamin S. Adamowski, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree entered in the superior court holding what the court believed to be the law applicable to said case and that the claim of $184,-065.28 allowed the claimant appellant was without priority and without preference as to any part of the assets of the State Life of Illinois. No order requiring payment in conformity with such decision was entered. We further note from the briefs and record that the suit originated through Ernest Palmer as director of insurance of the State of Illinois when he filed a bill to dissolve and liquidate the assets of the State Life of Illinois, a life insurance company organized and existing under an act entitled, “An Act to Organize and Regulate the Business of Life Insurance,” enacted March 26, 1869, and the subsequent amendments thereto.

By the terms of the complaint, it was alleged that the company was insolvent and the director of insurance asked that a receiver be appointed to liquidate the company and that its outstanding policies be reinsured in some solvent company. The company was found to be insolvent and H. B. Hershey was appointed receiver. Upon his appointment and pursuant to court order he solicited the reinsurance of the outstanding policies and, after appropriate hearings and further proceedings, the Old Republic Credit Life Insurance Company undertook the reinsurance of all of the outstanding policies of the State Life of Illinois pursuant to a contract of reinsurance duly entered into and approved by a decree of the court.

By the terms of the contract of reinsurance, a lien similar in character to a policy loan was placed against the policies so reinsured, representing in effect the impairment of the reserve of the policy. Also, by the terms of the reinsurance contract and under the decree of the court authorizing and approving it, the Old Republic Credit Life Insurance Company was assigned, from the assets of the State Life of Illinois, the reserve on each policy reinsured by it and became entitled to the rights, benefits, preferences and priorities of the policyholders of the State Life of Illinois in and to the assets of that Company. The Old Republic Credit Life Insurance Company was also authorized and instructed by the contract and the decree to file a claim with the receiver for and on behalf of the policyholders of the State Life against the assets of that Company in the receiver’s hands, and to claim for the benefit of those policyholders any priorities or preferences to which they might be entitled in and to those assets.

Among those assets were certain first mortgage loans, having a par value of slightly over $100,000, which had been deposited with the director of insuranee "by the State Life of Illinois in accordance with the provisions of “An Act to Organize and Regulate the Business of Life Insurance,” enacted March 26, 1869, as subsequently amended.

Pursuant to the decree of court and the reinsurance contract, the Old Republic Credit Life Insurance Company filed a claim with the receiver for and on behalf of the policyholders of the State Life of Illinois for the amounts due the policyholders from the State Life of Illinois and in and by that claim a right of preference and priority was asserted as to the assets of the State Life of Illinois which had been deposited with the director of insurance pursuant to the provisions of “An Act to Organize and Regulate the Business of Life Insurance” enacted March 26, 1869, as amended. It was claimed and asserted that the deposit of securities made pursuant to that act, and required thereby, constituted a fund for the special benefit and protection of the policyholders of the depositing life insurance company and that accordingly policyholders of the company had a right of priority and preference over other creditors as to those assets upon the insolvency of the company.

The receiver recommended allowance of the claim in the sum of $184,065.28, but recommended that the claim for preference and priority as to the deposited assets of State Life of Illinois be denied.

Objections were filed to the failure to allow the claim of preference and priority as to the deposited assets and the objections were referred to a master in chancery who ruled and a decree was entered that no preference or priority should be allowed. Exceptions to the master’s report were overruled and a decree was entered finding in substance that the law should be construed to mean there was no preference or priority in and to the deposited assets and that such assets were subject to the claims of all creditors alike. From that decree this appeal was taken.

The claimant appellant’s theory of the case is that the only question in this case is the construction of section 1 of the Act to Organize and Regulate the Business of Life Insurance enacted March 26, 1869, as amended, and the meaning, purpose and intention of the legislature in requiring a deposit of “guarantee capital” by corporations organized under that act, and further claiming:

“ (a) That the meaning and intent of the legislature in passing the Act of March 26, 1869, entitled “An Act to Organize and Regulate the Business of Life Insurance,” requires that securities deposited with the insurance authorities be held as a trust fund for the benefit of the policyholders and not as a fund for the general creditors.
“(b) That said Act must be interpreted in connection with all its subsequent amendments, and enactments in pari materia, as a comprehensive whole, in order to determine and apply the legislative intent, and that such intent, if disclosed, becomes a part of the Act. < 6
“(g) That the decree should have allowed the Old Republic Credit Life Insurance Company claim against the receiver as entitled to a preference out of the securities deposited with the insurance department as a trust fund for the benefit - of policyholders, as it was not a fund intended by the Act to be for the protection of creditors generally, but only for policyholders.”

Appellee contends that the sole issue precipitated by this appeal is whether or not a “Guarantee Capital” deposit made pursuant to section 1 of the Act to Organize and Regulate the Business of Life Insuranee, enacted March 26, 1869, as amended, constitutes a fund for the equal benefit of all creditors, including policyholders of the depositing company; that there is no languagte in the said act which establishes the “Guarantee Capital” deposit for the sole and exclusive benefit of policyholders, to the exclusion of the other creditors, of a depositing company; that subsequent amendments to this act over a period exceeding 68 years have not limited or qualified the purpose and meaning of this “Guarantee Capital” deposit, and have not made it an express or implied trust fund for the sole and exclusive benefit of policyholders of a depositing* company.

Counsel for appellee does not in his brief contradict the estimate placed by counsel for appellant upon the decree. Counsel for claimant appellant in their argument, state:

‘ ‘ This appeal from a decree that really is not a decree at all (for it orders nothing to be done, merely reciting the argumentative opinion set forth in a Master’s report), . . .” We shall say nothing more about this point, for if we held with appellant upon this point we would necessarily have to dismiss the appeal for want of jurisdiction, as we cannot review other than final decrees, unless authorized by statute.

Section 1 of “An Act to Organize and Regulate the Business of Life Insurance,” enacted March 26, 1869, on which this appeal is based, reads as follows:

“Be it enacted by the People of the State of Illinois, represented in the General Assembly, that before any life insurance company goes into operation under the laws of this State, a guarantee capital of at least $100,-000.00 shall be paid in money and invested in those securities of the United States, or of this State, or any county, city, town, or municipal corporation of this State which are direct obligations of the United States, this State, or county, city, town qx municipal corporation issuing the same, estimated at their market value or in mortgages which are first liens on real estate in this State, the said real estate being worth at least twice the amount of money loaned thereon with evidence satisfactory to the Director of Trade and Commerce respecting the title to the property, and accompanied by the certificate of two reputable landholders, under oath, certifying to the value of said property, or any tax anticipation warrants issued by the State of Illinois, or any county, city, town, village, sanitary district, board of education, board of park commissioners, or any other municipal corporation of this State, or the tax anticipation warrants of any other state, or any county, or political subdivision, or municipal corporation thereof, provided, such other state by its legislation, permits insurance companies chartered under its laws to invest in the tax anticipation warrants of the State of Illinois, or counties, cities, towns and other municipal corporations of this State.”

In referring to the above statute the Supreme Court in the case of Pierce v. People, 106 Ill. 11, the court at page 19, said: “In adopting our Insurance act the legislature evidently intended to protect the citizens of this State, and keep them out of the clutches of worthless and irresponsible companies, and to force all companies, good and bad alike, to keep an adequate fund within the jurisdiction of our own courts for the protection of policyholders

In 1887 the legislature added to the act above quoted, the following:

“Whenever the corporators shall have fully organized such company, and the said company shall have deposited with the auditor the required amount of capital, it shall become his duty to furnish the corporators with a certificate of deposit, which, with the certified copy of said declaration, previously received from the auditor, when filed for record in the office of the recorder of deeds in the county where such company is to be located shall be authority to commence business and issue policies, and the same, or a certified copy thereof, shall be evidence in all suits. ’ ’

In the case of People v. Fidelity & Casualty Co., 153 Ill. 25, while it concerns a foreign company doing business in Illinois, yet the interpretation by the court of the difference between the capital stock and the statutory deposits is clearly stated. The court on page 37, said:

“The capital stock of an insurance company, like that of any other incorporated company, is a trust fund. But it is a trust fund for the payment of all the debts and legal liabilities of the company, and not a trust fund simply, or even primarily, for the payment of obligations growing' out of contracts of insurance. It is otherwise in respect to the deposits demanded by our statutes. They are trust funds for the benefit of the policyholders of the insurance company, and for the benefit of all the policyholders alike, regardless of class lines.”

We think from a reading of these statutes and the interpretation of the Supreme Court as to the character and purpose of these deposits, that it was the intention of the legislature that the owners and beneficiaries of policies of insurance were the only persons they intended to protect, and inasmuch as it is stated in the statute that no policies could be issued until this deposit was placed with the auditor, it should be construed that it was intended to be placed there for use in paying off insurance policies in the event the company got into financial difficulties. In other words, the legislature intended to assure the policyholders that there was a fund available to meet any legal demand by them or their beneficiaries under their contract of insurance. We do not believe the legislature had in mind or intended that other debts or liabilities of the insurance companies such as rents, office supplies, salaries of employees, etc., should be similarly secured by this fund. The legislature apparently was concerned only with insurance for which they were authorizing the companies to issue policies, and also with the taking over and assuming of liabilities under the policies of other companies.

For the reasons herein given we think the trial court erred in holding that this fund was intended to apply to all creditors alike and that the claim of the policyholders should be a general'claim. Therefore, the decree of the superior court is reversed and the cause is remanded with directions to enter a decree final in its nature, finding that the claim of the policyholders is a preferred claim, and ordering and directing its payment in due course of administration.

Decree reversed and cause remanded with directions.

Hebel, P. J., and Hall, J., concur.


text:
    William McLaren, Administrator of Estate of William W. McLaren, Deceased, Appellant, v. F. Byrd, Incorporated et al., Defendants Below. F. Byrd, Incorporated, Appellee.
    Gen. No. 39,933.

      Opinion filed June 29, 1938.
    Ditchburne & Lounsbury, of Chicago, for appellant ; Harry S. Ditchburne and Nicholas J. Bohling, of Chicago, of counsel.
    McKenna & Harris, of Chicago, for appellee; James J. McKenna and Burrell J. Cramer, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

The plaintiff, William McLaren, as administrator of the estate of William W. McLaren, brings this appeal from a judgment entered in the circuit court on the verdict of a jury, finding the defendant F. Byrd Incorporated, not guilty, and assessing costs against plaintiff.

The suit was brought to recover alleged damages for injuries which resulted in the death of plaintiff’s intestate and which was caused by the negligence of the defendant in permitting its truck with trailer attached to stand on an open highway in the nighttime without lights, flares or similar devices.

Ho question is raised as to the sufficiency of the pleadings.

Motions for a new trial and in arrest of judgment were overruled and judgment was entered against plaintiff as aforesaid.

Plaintiff’s theory of the case is that the defendant is guilty of negligence as charged and that plaintiff’s intestate was not guilty of contributory negligence; that the question of negligence on the part of the defendant and that of contributory negligence on the part of the plaintiff’s intestate were properly subjects for impartial consideration by the jury; that the jury, however, was erroneously instructed as to the law in the case, at the request of the defendant, to the prejudice of the plaintiff, and that it is plaintiff’s contention that such erroneous instructions, and each of them, constituted reversible error.

Defendant’s theory is that plaintiff’s intestate was guilty of contributory negligence and the defendant was not guilty of the negligence charged in the complaint.

Walter Howe, who was driving defendant’s truck ór tractor on the night of the accident, testified in substance, as follows: That at the time of the trial he was 29 years old and on September 16, 1935, he was employed by F. Byrd, Incorporated, of White Pigeon, Michigan, to drive a semitrailer and that prior to that time he had driven a “semi” for three years and had driven other similar trucks for six years; that at that time he was a licensed chauffeur, with a license issued by the State of Michigan; that the truck or tractor was a 1934 Ford and a semitrailer; that there was no bed in the cab; that the outfit had the regular lighting system hookup and the trailer lights were cut in on the taillight. They would all work off the same fuse and switch and there were headlights and marker lights on the cab, and all of the lights on the trailer. The marker lights on the cab were on the front over the cowl or over the top of the windshield. On the rear of the trailer were three green lights and there were two corner lights and the corner lights were red. Those lights were located underneath. On the rear of the truck on each corner were red reflectors. They were just plain reflectors, but they worked on a swinging-hinge. Driving along they would swing and when a light hit them direct they would go on and off like a flasher. On the left hand there was another red light in addition to this reflector. In the middle of the rear of the truck were green lights. All of the lights operated on one switch which was located on top of the steering wheel. There was just one fuse. He testified that it was standard equipment, one fuse in connection with all the lights.

Howe further testifying stated that before starting-out he looked over the equipment and found the lighting system all right and that he got a box of five fuses from the mechanic at the garage; that they were in a small box, about the size of an aspirin box and he shoved the box of fuses into his shirt pocket; [the fuses were short glass tubes with metal ends] that he started about 3:00 o’clock Sunday afternoon, first going to Elkhart, Indiana, and from there he took route 20 on in to Whiting, reaching there about 8:00 o’clock and stayed there until midnight; that his truck was parked in the lot of the gas station, about 40 feet from the highway; that he went to a restaurant and had some coffee and came back to the trailer, took the blanket and threw it on top of the tarpaulin and went to sleep for about three hours; that when he awoke it was about a quarter of 12:00 and he resumed his journey to Rockford; that it was a dark night and he turned on his lights and walked around the truck and that every one of the lights was burning and the reflectors were clean.

Howe further testifying stated that he was wide awake and drove on the route there until he reached 95th street, thence west on 95th street to Western avenue and north to 79th street and then west to Harlem avenue and 79th street and that by that time it must have been between 1:00 and 1:30 a. m.; that he went north on Harlem avenue, intending to get to a street north of Madison street; that where 79th street and Harlem avenue intersect it is a four-lane highway; that there is a bridge just south of 63rd street and that from that point it is a four-lane highway; that he proceeded north across the bridge, which is a. viaduct over some railroad tracks; that after he got across the viaduct he was riding in the east lane, going north; that he stopped at 63rd street as there is a stop sign there; that he continued north and when he crossed 63rd street as he proceeded north, the front lights were functioning all right and he could see ahead; that he had a mirror extending out on to the left side of the cab so that he could see back.

Howe further testifying stated that it is between 90 to 100 miles from Chicago to Rockford from that point; that the traffic was light; that there were no street lights there at all; that he was not observing particularly the condition of the shoulder of the road on the east side of Hárlem avenue as he drove along; that when he reached 59th street all his lights went out, leaving him in complete darkness; that he was "traveling at approximately 20 miles an hour at that time; that he glanced into the mirror and at the same time drove over to the side of the road as far as he could without taking chances of going off; that when he glanced in his rear view mirror he did not see any headlights back of him; that he put on the brakes to stop the outfit, but did not put on any emergency, but did put the brakes on suddenly and stopped within 40 feet; that there were no cars coming toward him from the front at any time and he could see no cars approaching from the rear through his rear view mirror; that after he came to a stop he opened the left door and “grabbed” a fuse out of his shirt pocket and started changing the fuse; that in changing the fuse he did not sit in the cab; that he put one foot on the concrete and one foot on the running board and then leaned over under the steering wheel, facing the dashboard; that the fuse had blown out on the right hand side of the steering post.

Howe further testifying stated that at that time he had three flares; that they were on the floorboard of the truck and that he had never changed a fuse before in that truck; that it does not take over 30 seconds to change a fuse; that in order to light and put out flares it would take a minute and a half and that he had the old fuse out and was just ready to put the new one in when he felt a crash in the back of the truck; that he was facing under the dashboard and did not see the car that hit him.

On cross-examination Howe testified that he did not know how long he was stopped before the impact took place, “but that it was less than 45 seconds, if more than 30 seconds.”

The testimony on behalf of the defendant tended to show that while Howe was intent upon replacing the fuse, the trailer was struck by a 1927 Chevrolet sedan automobile driven by Albert Wandland. In that car were William McLaren, plaintiff’s intestate, who was 24 years of age and who was riding in the front seat at the right of the driver; that Clifford Hanley was riding at the right in the rear and Orvie Parker was riding at the left in the rear; that the occupants of the car who were sitting on the right side, McLaren and Hanley, were the most badly hurt; that Hanley died immediately and McLaren died two days later; that Parker was rendered unconscious and remained so until he was removed from the scene of the accident and that Wandland was not seriously hurt.

The testimony further shows that these four occupants of the Chevrolet had started out from 79th street and Kenwood avenue, Chicago, Wandland having-agreed to take Hanley home to his residence in Oak Park; that they had traveled west on 79th street from Kenwood avenue and then went north on Harlem avenue; that the speed at which they traveled was not higher than 30 miles per hour; that the only two available witnesses for plaintiff, Wandland and Parker, both testified that at 63rd street and Harlem avenue where they stopped for a through street, no red lights or flares were in sight to the north as far as they could see, their range of vision being at least one mile; that the scene of the collision was four blocks ahead.

Wandland, the driver of the Chevrolet, testified that his headlights were good and that the reflectors in them were shiny and clean; that the lights on his car were so focused that the beams struck the road about 15 feet ahead of the car, and that he could see the pavement in the beam of the light 15 feet in front of him.

Wandland further testified that about the time they arrived at 59th street, still driving north, the shape of defendant’s vehicle loomed up in the glare of the headlights ; that he, Wandland, swerved trying to avoid it, but it caught the right side of the body of the Chevrolet; that he attempted to avoid it by swerving to the left; that the dark object in front of him was standing still; that there were no lights on it at the time he struck it and that there were no lights or flares of any kind around it.

Wandland further testifying stated that after striking the trailer, he stopped 10 or 20 feet in front of the truck; that the top of his automobile was ripped off and the top part of the body of the Chevrolet was taken off on the right side, but there was a little left on the left hand side, but that practically the whole top of the body was ripped off; that he was able to drive his car carrying Hanley and Parker to a doctor’s office in Argo; that McLaren was taken to the same doctor’s office by a passing motorist and later McLaren was moved from there to a hospital in Chicago.

Wandland further testifying stated that at the time of the collision the truck was standing upon the east lane of the highway, which was a four lane highway, and he was driving his Chevrolet in the same lane.

The evidence shows that the occurrence complained of happened between 1:00 and 2:00 o’clock a. m., daylight saving time on September 16,1935; that the pavement was in good condition; that on September 15th there had been 100 per cent sunshine, the sun having set that day at 6:00 p. m., and on September 16th, the sun rose at 5 :31 a. m.; that there was no precipitation either September 15th or September 16th; that the moon rose September 15, 1935, at 9:44 p. m. and set after daylight on September 16th; that the weather report showed that up to 1:00 a. m. on September 16th, there was intermittent moonlight and after 1:00 a. m. September 16th, there was bright moonlight; that these references are to standard time.

• The evidence further shows that the moon was shining when the collision occurred, according to the testimony of the driver of the truck, Walter Howe. He also said when his lights went out it was completely dark.

Wandland and Parker testified as to a slight mist being present which was also characterized by Wand-land as being “a sort of dew falling.”

The negligence charged against the defendant was:

(1) General negligence in the operation and control of its motor vehicle;

(2) Negligently and carelessly permitting its motor vehicle to remain standing upon the traveled portion of the highway without lights, flares or similar devices;

(3) Violation of section 121b of “The Uniform Act Regulating Traffic on Highways” by permitting the vehicle to stand on the traveled portion of the highway without lighting equipment, flares, lanterns or other signals, contrary to the statute;

(4) Breach of defendant’s duty to remove the truck from the main traveled portion of the highway or to cause flares, lanterns or other signals to be lighted and placed upon the highway; in causing said truck to stand on the main traveled portion of the highway outside of the business or residence district, etc. between the hours of sunset and sunrise without lights, flares, lanterns or other signals whatsoever.

Referring again to the testimony of Walter Howe, on behalf of defendant, with regard to his conduct before the accident, he stated that when he came to a stop at the place indicated, after his lights went out, he opened the left door and took a fuse out of his shirt pocket and started to change the defective fuse; that at that time there were three flares on the floor board of the truck and that at the time of the collision he had one fuse in his hand, the dead one pulled out of the socket and was just ready to put the other one in; at that time he was facing under the dashboard. It is to be noted that Howe did not attempt to comply with the statute regarding flares, etc.

Chapter 95½, par. 218, sec. 121, subd. (b), Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.250], reads as follows :

“(b) Whenever any motor vehicle of the second division and its lighting equipment are disabled during the period when lighted lamps must be displayed on vehicles and such motor vehicle cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, lanterns or other signals to be lighted and placed upon the highway, one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet to the rear of the vehicle, and the third upon the roadway side of the vehicle, except that if the vehicle is transporting flammables three red reflectors may be so placed in lieu of such other signals and no open burning flare shall be placed adjacent to any such last mentioned vehicle.”

Howe further testified that he lighted his flares and set them out after the collision and that he did not save the defective fuse; that the blowing out of the fuse would not affect the operation of the car or disturb the rest of the ignition; that the flares on the floor of the car were the kerosene type and he also carried some matches and some fusees; that the fusees were carried against the front of the driver’s seat on a rack; that they were like Roman candles, like the railroad men use.

Referring again to Wandland’s testimony, he stated that just prior to the time his car struck the truck, his three companions were just holding the usual conversation ; that1 they were talking about when they all worked together and they were talking about the service station; that nothing particular happened between 79th and 63rd streets; that just before the accident everyone was wide awake and no one made any comments about bis driving.

Plaintiff’s witness Parker did not recall anything about striking the truck, due to the fact that he was thereby rendered unconscious. He testified that he had been looking ahead most of the time and did not observe what any of the other boys were doing; that there was no “foolery” going on in the automobile. He also testified to the casual conversation between “the three of us” and that McLaren was not asleep.

From the testimony of the police officers who visited the scene immediately after the collision, it appears that along the highway in that vicinity there was a curb or gutter not more than two inches higher than the highway; that 59th street did not continue east from Harlem avenue; that there was a dirt road going east which was quite a distance south from the sidewalk, and according to the sidewalk there would be quite a jog in the street if 59th street continued east; that the front end of the truck was approximately at the north sidewalk of 59th street and there was a shoulder upon which there had been scattered loose stone; that there was no curb between the north sidewalk and what would be the south sidewalk; that space was even with the highway and was filled in with stone. Inasmuch as the evidence was conflicting it was important that the jury be correctly instructed as to the law applicable thereto.

Criticism is made with reference to the instructions that were given on behalf of the defendant. About thirty-six instructions were given on both sides.

Instruction No. 4, given on behalf of defendant, reads as follows:

‘ ‘ The Court instructs you that if you believe from the evidence under these instructions of the Court that immediately prior to the accident in question Walter Howe was suddenly confronted with an emergency, and if you also believe from the evidence that said Walter Howe before and at said time was acting with reasonable care and caution on his part, then you are instructed that under such state of proof, if you believe from the evidence it existed, said Walter Howe was not required to use the same degree of self-possession, coolness and judgment as when there was no emergency; and if under such circumstances, if you believe from the evidence they existed, said Walter Howe acted as an ordinarily prudent person would have acted under the same circumstances, then you should find the defendant not guilty.”

The difficulty with this instruction is that it selects out the name of a particular witness and speaks of him as being suddenly confronted with an emergency. There is no evidence in the record that Howe, the witness, was confronted with any emergency, but on the contrary he stated that he did not know anything about the accident until after it had happened. He claimed that at the time of the accident he was under the steering wheel in his truck, endeavoring to change a fuse which controlled the lights on said truck and that he knew nothing of the approaching automobile until after the collision. In addition to that the so-called emergency which would relax the rule, and thereby relieve a person from the use of the same degree of self-possession, coolness and judgment, must be such imminent peril and perilous position which would be caused by an agency beyond his control. Chicago & E. I. R. Co. v. Storment, 190 Ill. 42; Bunch v. McAllister, 266 Ill. App. 248. One cannot create an untoward situation or emergency by his own action and then by reason of such situation so created be relieved from such responsibility as the law requires of a person acting under normal conditions. The giving of such instruction was erroneous.

The court also erred in giving Instruction No. 7. That instruction reads as follows: “The Court instructs you that the mere happening of the accident in question, in and of itself, raises no presumption of negligence on the part of the defendant. ’ ’

In Minnis v. Friend, 360 Ill. 328, on page 337, the court in discussing a similar instruction given, stated:

“ ‘No presumption that the defendant Arnold Friend was negligent arises from the fact that the accident happened.’ Similar language to this was condemned in West Chicago Street Railway Co. v. Petters, 196 Ill. 298, where we held that instructions which select one item of evidence or one fact disclosed and state that a certain conclusion does not follow therefrom as a matter of law are calculated to confuse and mislead a jury. (Drainage Commissioners v. Illinois Central Railroad Co., 158 Ill. 353.) If such instructions were to be held proper, a defendant could select each separate fact constituting the entire chain of evidence by which negligence was proved, and thus instructed the jury, through the court, that each link in the chain did not, standing alone, constitute negligence. While the separate links standing alone as ‘mere facts’ might not constitute negligence, the whole, taken together, would. Thus the consideration of these separate facts would be taken from the jury and its province would be invaded.” This instruction was prejudicial and should not have been given.

Other points are raised as to other instructions given, and also as to rulings on the admission and refusal to strike out evidence, but inasmuch as this case must be retried, and the errors which were committed at the former trial may then be cured, we refrain from discussing them further at this time.

For the reasons herein given the judgment of the circuit court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

IIebel, P. J., and Hall, J., concur.


text:
    Wyatt B. Starks, Ernest L. Starks and Jimmie L. Beach, Appellants, v. Lottie L. Fowler, Individually and as Executrix of Last Will and Testament of Amanda L. Starks, Deceased, Appellee.
    Gen. No. 39,950.
    Opinion filed June 29, 1938.
    Rehearing denied July 12, 1938.
    Albert G. Rosenbaum, of Chicago, for appellants ; Ferdinand J. Karasek, of Chicago, of counsel.
    Henry W. Kenoe, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiffs bring this appeal from an order entered in the circuit court, on motion of defendant to strike, dismissing their bill of complaint for want of equity.

It appears that a bill was filed by the plaintiffs appellants alleging that a will was made by one Amanda L. Starks, the mother of plaintiffs and the defendant .herein, which had been filed in the probate court and had been admitted to probate; that letters testamentary thereon were granted to Lottie L. Fowler, who was named in said instrument to act as executrix and trustee; that the said Lottie F. Fowler then and there took upon herself the burden of sole executrix and trusteeship of said Amanda L. Starks, deceased.

The bill further alleges that the said will provides that there are five children and that after the debts of the deceased and the debts upon the real estate are paid from the income to be derived therefrom, it is to be divided between her five children, share and share alike; that the deceased was the part owner of two pieces of real estate, namely, 5410 and 5412 Indiana avenue and 4634 Champlain avenue, located in Chicago, Illinois; that the property located at 5410 Indiana avenue is improved with a six flat building covering the entire lot and that the defendant herein is reputed to be the owner of the north half of said lot and that the six flat building located on these premises has one common entrance in the front and in the rear.

The bill further alleges that the property at 4634 Champlain avenue, Chicago, Illinois, is a two-story building consisting of two flats which is unincumbered and that all the property is income bearing; “that by reason of the defendant being the reputed owner of the south one-half of said lot and being in possession and collecting the rents, issues and profits”; that unless a receiver be appointed to collect said rents, issues and profits, plaintiffs herein fear that they will suffer irreparable damage and that the defendant should be enjoined by injunction from collecting any rents, issues and profits, or in any way interfering with the property.

The bill further alleges that the defendant Lottie L. Fowler caused a notice to be served upon the plaintiffs herein, demanding payment of rent for said apartment, and her agents and representatives advised these plaintiffs that they would have to pay rent, or further proceedings would be instituted against them, and plaintiffs herein fear that by reason of said written demand and the threats made, that the defendant Lottie L. Fowler, as executrix and trustee of the estate of Amanda L. Starks, deceased, under said purported last will and testament, will carry said threats into execution unless restrained by injunction.

The prayer of the bill asks that said instrument in writing and the probate thereof be set aside and declared null and void as not the last will and testament of the said Amanda L. Starks, deceased; that said instrument be declared a nullity because of its violation of the rule against perpetuities; that the estate of Amanda L. Starks, deceased, be distributed among her heirs according to the law; that the defendant Lottie L. Fowler, her agents and servants be enjoined and restrained by injunction from demanding, interfering, or in any way molesting the plaintiffs herein in the possession of the apartment now occupied by them at 4634 Champlain avenue, Chicago, Illinois, until the further order of the court.

The bill further prays for an injunction restraining the defendant from demanding, interfering or in any way molesting the plaintiffs herein in the possession of the apartment now occupied by them at 4634 Champlain avenue, Chicago, Illinois, until the further order of the court, and be further restrained from collecting the rents, issues and profits from the property located at 5410 Indiana avenue and at 4634 Champlain avenue, Chicago, Illinois, and making any disbursements of any kind until the further order of the court.

The bill further prays that a receiver be appointed to collect the rents, issues and profits from all of the properties located at 5410 Indiana avenue and 4634 Champlain avenue, Chicago, Illinois, with the exception of the apartment now occupied by the plaintiffs herein.

As near as we can gather from the bill of complaint, the clause to which plaintiffs object, is as follows:

“ (j) If the mortgage now existing on the property at 5410 and 5412 Indiana Avenue, Chicago, Illinois, shall not be retired and satisfied in the manner herein-above provided within ten years from my death, then the Executrix and Trustee is ordered and directed to sell and convert all of my property at the earliest opportunity thereafter provided that in the opinion of the Executrix and Trustee such a sale would not materially prejudice the value of my estate, and shall divide the proceeds realized from such a sale, first, to the payment of any balance then existing on the mortgage on the property located at 5410 and 5412 Indiana Avenue, Chicago, Illinois, and the balance if any, shall be divided equally, share and share alike, between my children named above, and should any of my said children be dead, their share shall be divided between their children, if there be any, if none, divided between their surviving brothers and sisters. ’ ’

It appears so far as we can gather that the claim is that the so-called will is invalid because of its violation of the rule against perpetuities. The prayer for relief is rather confusing, as plaintiffs first ask that the instrument in writing purporting to be the last will and testament of Amanda Starks, be declared to be not the last will and testament of the said Amanda Starks.

Plaintiffs do not allege any facts such as undue influence or incompetency by reason of mental or physical disability in mailing the said will.

It further appears as nearly as we can define from the bill that some of the heirs are in possession of some of the real estate and others are in possession of other parts of the real estate. We do not fully comprehend plaintiffs’ meaning. If the will is invalid, then the real estate belongs to the heirs and is vested in them as tenants in common. It is perfectly lawful and it may become the duty of any heir in possession to conserve the property and collect the rents, subject to an accounting therefor to the other heirs, so there is no reason why a court of chancery should interfere on this charge unless it is for the purpose of partitioning the property among the heirs. This relief, however, is not asked. Plaintiffs merely ask that one of the heirs be prevented from doing what plaintiffs themselves are also doing.

We do not think plaintiffs have set out such a cause of action in their complaint as calls for the intervention of a court of equity. There is no offer on the part of the plaintiffs to act equitably to the other heir, defendant herein, and offer payment of any sum which may be found due against plaintiffs. We think the trial court was justified in dismissing the bill of complaint.

Without discussing the legal problem, if any, involved, we think the judgment of the circuit court was correct and for that reason it is hereby affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.


text:
    Laura S. K. Slocum, Appellee, v. A. Harris et al. Appeal of M. Rothschild, Appellant.
    Gen. No. 39,960.

      Opinion filed June 29, 1938.
    Levinson, Becker, Peebles & Swiren, of Chicago for appellant; Max Swiren and Ben W. Heineman, of Chicago, of counsel.
    Lane & Jacobson, of Chicago, for appellee; William E. Lane and Harvey B. Jacobson, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered against the defendant M. Rothschild and in favor of plaintiff Laura S. K. Slocum for $684.42.

From the facts as set forth in the abstract it appears that the Ashland Industries Building Corporation issued bonds under a trust indenture dated January 1, 1926, in the sum of $1,500,000, secured by a trust deed covering certain real estate, and plaintiff claims to be the legal holder and owner of two of these bonds, together with unpaid interest coupons thereon from January 1, 1932 and thereafter, in the sum of $660, plus accrued interest. That part of the guarantee, upon which plaintiff relies, reads as follows:

“Now, therefore, in consideration of One Dollar ($1.00) and other good and valuable considerations to each of said guarantors in hand paid, the receipt whereof is hereby acknowledged, and in consideration also of the purchase from time to time by the several holders thereof of the bonds issued and to be issued under said Mortgage, A. Harris, D. C. Harris, S. H. Harris, M. Rothschild, and H. H. Baum (hereinafter referred to collectively as the ‘Guarantor’), agree and guarantee, absolutely and unconditionally that Ash- land Industries Building Corporation shall and will pay to The Foreman Trust and Savings Bank, as Trustee as aforesaid, and/or to the several other persons thereto entitled, as and when and in the manner provided in said Mortgage and in the bonds thereby secured,

“(1) all and every of the principal payable upon said bonds, as and when the same shall become due and payable, either pursuant to the terms of said several bonds or by declaration as provided in said Mortgage; and

(2) all and every cotipon for interest upon any of said bonds as and when said coupons shall severally become due and payable; and all interest of any kind due'and payable upon said bonds and/or coupons under the provisions of said Mortgage, whether evidenced by interest coupons or not; and

“(3) all and every sinking fund payment as and when the same shall become due and payable pursuant to the provisions of said Mortgage.”

By the terms of this guarantee it must at once be apparent from the language employed that it assured the owner of a bond and interest coupon that the guarantors would pay him this money when it became due. We do not see where any different construction could be deduced from such language other than the words themselves express. We have had occasion many times before to consider language somewhat similar.

It is urged that we should consider this guarantee in connection with the trust deed, but we fail to find anything in the trust deed (which is an entirely different instrument having an entirely different purpose), which in any way contradicts or is inconsistent with this written guarantee.

Of similar import are the cases of Chicago Title & Trust Co. v. Cohen, 284 Ill. App. 181: Schatzkis v. Rosenwald & Weil, 267 Ill. App. 169; Borker v. Bendix, 288 Ill. App. 260; Romberg v. Interstate Independent Telephone & Telegraph Co., 200 Ill. App. 509; Gauss v. Simon, 268 Ill. App. 196.

We think the conclusion reached by the trial court was correct and for that reason the judgment of the municipal court is affirmed.

Judgment affirmed.

Bebed, P. J., and Ball, J., concur.