text:
    Eugene Kavanaugh, Minor, by Maurice Kavanaugh, His Father and Next Friend, Appellee, v. Jeanne Parret, Appellant.
    Gen. No. 9,615.

      Opinion filed April 25, 1941.
    Rehearing denied June 24, 1941.
    Sears, O’Brien & Stkeit, of Aurora, and Snapp, Heise & Snapp, of Joliet, for appellant; Barnabas F. Sears, of Aurora, Charles F. Short, Jr., of Blooming-ton, and William M. Garvey, of Lockport, of counsel.
    Charles M. Robson and Ray F.- Faulkner, both of Joliet, for appellee; Ray F. Faulkner, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This suit is an action brought by the appellee, Eugene Kavanaugh, a minor, by Maurice Kavanaugh, his father and next friend, against the appellant, Jeanne Parret, to recover for personal injuries sustained by Eugene Kavanaugh as a result of a collision between the bicycle ridden by him, and a motor vehicle driven by the appellant, Jeanne Parret, on a highway in Will county. The case was tried before a jury who rendered a verdict in favor of the plaintiff for $4,500. Judgment was entered on the same, and it is from this judgment that the appeal has been perfected to this court. The complaint filed in the case consisted of one count. It averred that on August 2, 1937, Eugene Kavanaugh was possessed of a bicycle on which he was riding in a southerly direction on and along State highway, namely Route 59, about two miles south of the intersection of Route 59, and Route 69, and at said time and place aforesaid, he was in the exercise of due care and caution for his own safety; that at the said time and place, the appellant, Jeanne Parret, was operating an automobile in a southerly direction on said State Route 59, and that the appellant, Jeanne Parret, negligently caused the bicycle and the automobile to collide.

The petition alleges that the defendant, Jeanne Parret, was guilty of one or more of the following acts of negligence: “(a) Negligently and carelessly drove said automobile at a greater rate of speed than was reasonable and proper, having regard to the traffic and the use of the way, and at a speed contrary to Section 22 of the Motor Vehicle Law of the State of Illinois.

“ (b) Negligently and carelessly drove said automobile at a speed which endangered persons rightfully riding upon and along said public highway.
“(c) Negligently and carelessly drove said automobile with defective brakes and was unable to slacken the speed of said automobile, due to the condition of the brakes, before the said automobile, operated by the said Jeanne Parret, defendant, and the bicycle upon which Eugene Kavanaugh was riding collided.
“(d) Negligently and carelessly failed to give any warning signal of the approach of the said automobile operated by the defendant.
“(e) Otherwise so negligently managed, controlled and operated said automobile at the time and place aforesaid that the automobile operated by the defendant, Jeanne Parret, collided with the bicycle upon which the said Eugene Kavanaugh was riding.
“(f) Negligently and carelessly failed to keep a proper lookout for people rightfully riding along and upon said highway,”

It is then alleged that due to the collision between the automobile of the defendant, and the bicycle of the plaintiff, the plaintiff was severely injured, and claimed damages in the sum of $15,000.

The defendant filed her answer in which she admits that the appellee was possessed of a bicycle which he was riding in a southerly direction along said State highway at the time and place aforesaid, but denies that appellee was in the exercise of due care and caution for his own safety. Said answer further admits the appellant was operating her automobile south on said highway, but denies each and every allegation of negligence contained in the complaint, and specifically denies than any damage was sustained as a result of the negligence on the part of the defendant.

The evidence discloses that the plaintiff, Eugene Kavanaugh, at the time of the accident, was a boy 16 years of age; that he was riding in a southerly direction on State Route 59, in company with Robert Bagnell, a boy 17 years of age; that the defendant was driving in a southerly direction on said Route No. 59, accompanied by her brother, Edmund W. Parret; that as the car of the defendant approached the boys, the Bagnell boy who was riding on the right side of Eugene Kavanaugh, turned his bicycle off of the pavement on to the west side of the road; that Eugene Kavanaugh turned his bicycle to the east of where he was riding, and was struck by the automobile of the defendant, and severely injured.

It is claimed by the appellant that the verdict of the jury is against the manifest weight of the evidence, therefore, the verdict and judgment should not be allowed to stand. The evidence, as in every contested case, is conflicting. We do not see any advantage in quoting the evidence. The jury had an opportunity to hear the evidence and see the witnesses, as they gave their testimony. If they believe the evidence of the plaintiff’s witnesses to be more worthy of belief than the evidence of the defendant’s witnesses, it is their province to give credence to the ones they thought the more worthy of belief. They have seen fit to give more credence to the plaintiff’s witnesses than that of the defendant’s. We have read the evidence, as abstracted, and where there is some dispute in regard to the testimony, we have read it as it is set forth in the record. Unless this court can say that the finding of the jury is against the manifest weight of the evidence, we would not be justified in reversing the judgment on that ground. It is our conclusion that the verdict of the jury is not against the manifest weight of the evidence, but the same is sustained by the record.

It is next insisted that the case should be reversed ■because at the time the jury was being impaneled, the attorney for the plaintiff asked the jurors whether any of them were employees, agents, representatives, solicitors, or policyholders, or financially interested in the Union Auto Indemnity Association of Blooming-ton, Illinois. Before this question was propounded to the jurors, the court and the attorneys retired to the court’s chambers and the attorney for the plaintiff submitted a question that he proposed to ask the jurors. The attorney for the defendant appellant, asked leave to file an affidavit, which was granted. The affidavit stated that none of the jurors on the regular panel that were called to hear this case had any such interest in the insurance company. The chief counsel for the insurance company was present in court helping to defend the suit, and gave testimony to the same effect, that none of the jurors were interested in any way, in the insurance company. The court then granted permission to the plaintiff to ask the members of the jury the question. The question was propounded to all of the jurors at the same time. The same procedure was followed in the case of Smithers v. Henriques, 368 Ill. 588. The language used in that ease by the Supreme Court is decisive of the question in this case, and the court did not err in allowing the questions to be propounded to the jurors.

It is seriously contended by the appellee, that the court committed reversible error by giving plaintiff’s instruction No. 10, which is as follows: “The Court instructs the Jury as a matter of law that if a person without fault on his part is confronted with sudden danger or apparent sudden danger, the obligation resting upon him to exercise ordinary care for his own safety, does not require him to act with the same deliberation or foresight which might be required under ordinary circumstances.” This instruction has been before the Supreme and Appellate Courts numerous times, and has been criticized by them. We so criticized it in the case of DeMay v. Brew, 306 Ill. App. 505. We there held that owing to the facts as developed in that particular case as disclosed by the record, the instruction assumed that the deceased was' confronted with sudden danger. Other cases have been cited wherein, an instruction similar to this, has been criticized because the instruction calls particular attention to the want of due care on the part of the plaintiff. The instruction in this case does not call particular attention to the negligence, due care or want of due care on the part of the plaintiff, but it could be well reasoned that if the defendant was confronted with a sudden danger (that is, if her theory of the case is correct, that the boy turned over onto the left side of the road in front of her, and she could not avoid injuring him,) it 'would apply with equal effect both to the plaintiff and to the defendant. In the case of Roberts v. Chicago City Ry. Co., 262 Ill. 228, the instruction given in that case is not identical with the one in question, but nearly so. In substance, they are the same. The court, in that case held, that it was not reversible error to give the instruction, but the case was reversed for other reasons. However, the court does discuss the instruction, and says that it should not have been given. To understand whether a given instruction would mislead the jury, the facts of the case must be considered. In the case of Roberts v. Chicago City Ry. Co., supra, the plaintiff’s intestate was attempting to cross a street intersection where there were double street car tracks. As he was going to cross the northbound tracks, the motorman gave a signal, and the deceased, without lo.oking back to see whether the southbound track was clear, jumped back off of the northbound track into the path of the southbound car and was killed. The court, in that case held, that the vital question was not just whether the defendant at the time he jumped out of the way from the one car over into the path of the other, was confronted with sudden danger, and only then had to use such care and caution as a person under like circumstances would use, but the instruction failed to take into consideration and inform the jury whether the deceased was in the exercise of ordinary care just at, and prior to the time that he put himself in the position where he found himself at the time the emergency arose, and say that the instruction for that reason was misleading, and therefore, should not have been given. Some of the cases recognize that the instruction properly states the law, but in most cases it needs an explanation so as to give the jury a better understanding of just what they are to consider in arriving at their conclusion of whether or not the party was negligent under all the circumstances.

In the present case, the evidence is undisputed that the plaintiff and the other boy were riding down a hard road in their proper lane of traffic; that the car of the defendant was approaching them from the rear. There is a dispute in the evidence how many times the defendant blew her horn before the collision occurred. She says she blew it several times. The boys say they did not hear but one blast of the horn, and the car was then right upon them. Under such circumstances as developed by the evidence in this case, we do not see how the jury could be misled in regard to this instruction. Especially is this so when plaintiff’s given instruction is considered with the defendant’s given instruction No. 3, which states the same rule of law, but singles out the defendant, and states that if the defendant being confronted with a sudden emergency which she could not in the exercise of ordinary care, have reasonably foreseen, then the ordinary care of the defendant was only such care as a reasonably prudent person would exercise under such circumstances.

Complaint is also made that the court erred in giving the plaintiff’s instruction No. 12, which relates to the measure of damage that the plaintiff is entitled to recover if the jury found in favor of the plaintiff. Plaintiff’s given instruction No. 1, told the jury what he charged in his declaration. Other instructions told them that the plaintiff must prove his case by a preponderance of the evidence; that the plaintiff was injured; that he exercised reasonable care for his own safety, and that the defendant was negligent, as charged in his bill of complaint. This instruction was taken nearly verbatim from Illinois Cent. R. Co. v. Cole, 165 Ill. 334, in which the court there says that the instruction states a correct principle of law.

We find no reversible error in the case, and the judgment of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    Helen S. Nash, Executrix of Last Will and Testament of J. A. Nash, Deceased, Substituted for J. A. Nash, Deceased, as Party Plaintiff, Appellant, v. James H. Clark et al., Appellees.
    Gen. No. 9,644.
    Opinion filed April 25, 1941.
    Rehearing denied June 24, 1941.
    Latham Castle and Theodore L. Anderson, both of Sycamore, and Walter F. Dodd, of Chicago, for appellant.
    J. E. Matteson, H. E. Mann, John G-. Boyle, Jr., and H. W. McEwen, all of De Kalb, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On June 7, 1934, J. A. Nash, in the circuit court of DeKalb county, obtained a judgment by confession on a promissory note against James H. Clark, Lutie J. Stewart, Fred Hartman, W. E. Haish, J. L. Stewart and G-. S. Potter in the amount of $11,027.39.

On May 4, 1940, Craige C. Kennedy, individually and as administrator of the estate of Gr. S. Potter, deceased, and also each of the other defendants, filed motions in said court to vacate and set aside the judgment as rendered of June 7, 1934. The motions stated that the judgment is indefinite and fails to set forth the person or persons against whom the judgment was rendered; that the court was without jurisdiction to enter the purported judgment against James H. Clark, Lutie J. Stewart, Fred Hartman, W. E. Haish and Gr. S. Potter, because the defendant, J. L. Stewart, one of the signers of said note, and defendant in said judgment, was dead at the time the judgment was confessed; that he had died on January 21, A. D. 1930; that the warrant of attorney in the note on which judgment was entered by confession, is the joint undertaking of all of the signers, and does not authorize the taking of a several judgment against the makers, and that by reason of the death of J. L. Stewart, before the entering of the judgment, the said warrant of attorney was void and that the court had no power to render judgment upon said warrant.

The court sustained the motion to set aside and vacate the judgment, and entered an order accordingly. It is from this judgment that this appeal is prosecuted.

The note and warrant of attorney to confess judgment, is as follows:

“Hinckley, Ill., Sept. 20, 1927.
“$8000.00
‘ ‘ Six months after date, for value received, I, we, or either of us as principal, promise to pay to J.A. Nash, on order Eight Thousand Dollars at the Hinckley State Bank, Hinckley, Illinois, with interest after date at the rate of 6 per cent per annum until paid.
“In consideration thereof, I do hereby authorize any attorney of any Court of Eecord, in term time or vacation, to enter my appearance therein at any time after the date hereof, to waive all process, and to confess judgment or judgments in favor of the legal holder hereof, against me alone or jointly with any Other signers hereof, for amount then due and costs with ten dollars, and two and one-half per cent on the amount then due on this note in addition, as attorney’s fees, and consent to immediate execution on the judgment so confessed, and waive all errors in the rendition thereof. No extension of payment shall release any signer hereof, whether given with or without his consent. And I further authorize the said bank, in case of default in the payment of this note at maturity, to sell any collateral of mine in its possession at public or private sale, with or without advertising, and to apply the proceeds, after the payment of expenses of this sale, to the payment of this note.
“(Signed) Jas. H. Clark (Seal)
(Signed) Lutie J. Stewart (Seal)
(Signed) Fred Hartman (Seal)
(Signed) W. R. Haish . (Seal)
(Signed) J. L. Stewart (Signed) Gr. S. Potter.”

The appellees insist in this court, that the note and power of' attorney is not joint and several, and that appellant could not take judgment on the same against one, or more of the signers of the note, but must be against all of them. In the case of Holmes v. Partridge, 375 Ill. 521, the Supreme Court was considering whether the note and warrant of attorney was joint, or joint and several, and whether the judgment as taken in the trial court was valid. In the opinion, the court says: “We have held that a warrant of attorney does not authorize a judgment by confession on a note against only one of the signers if the warrant is joint and not joint and several. (Mayer v. Pick, 192 Ill. 561; Keen v. Bump, 286 id. II.) Appellant -contends the powers of attorney here involved are joint and several and that the judgment against appellee as one of the signers should not be vacated.

“The general rule of construction is that authority to confess judgment under a warrant of attorney must be strictly construed and must be strictly followed. (Mayer v. Pick, supra; Frye v. Jones, 78 Ill. 627; Tucker v. Gill, 61 id. 236; Kahn v. Lesser, 97 Wis. 217.) When we view the warrants of attorney in the notes appellee signed, it appears the pronoun ‘I’ and other singular pronouns are used throughout. The power reads: ‘I hereby irrevocably nominate, appoint and make any attorney at law . . . my true and lawful attorney ... to appear for me,’ etc. If there were only one signer to the notes, the pronouns would' refer clearly to him. In the case at bar, where four have signed, the pronouns ‘I,’ ‘me’ and ‘my’ can only refer to the signers severally. They cannot refer to the signers jointly under any interpretation which is reasonably in accord with the general rule of construction. Appellee has argued that the use of the singular pronouns can only be treated as mistake or oversight and that the parties really intended to insert the pronouns ‘we’ and ‘us.’ No marks appear on the note and nothing in the record permits the inference of such an intention. By the use of the singular personal pronouns in the warrants of attorney, they are necessarily joint and several.” We think that the note and warrant of attorney in question is joint and several and not joint.

The abstract, contains the decision of the trial court. An examination of this discloses the court thought that the power of attorney, was joint and several, but his decision in the case was based upon the fact, that one of the signers of the note, J. L. Stewart, having died prior to the time the judgment was taken, the judgment was void as to all of the defendants.

This precise question has not been passed upon either by our Supreme or Appellate Courts. It is the contention of the appellant, that under the new Practice Act, which was adopted in 1933, and became effective January 1, 1934, that this court can find that the judgment was void as to J. L. Stewart, but in full force and effect as to the other signers of the note. No doubt, under the law as declared by our courts, a judgment prior to the time of the adoption of the new Practice Act, was an entirety. If it was void as to one of the defendants, it was void as to all. Livak v. Chicago & Erie R. Co., 299 Ill. 218.

In the case of Minnis v. Friend, 360 Ill. 328, the plaintiff recovered a judgment for $15,000, against Friend and the city of Chicago. Each of the defendants perfected an appeal to the Supreme Court. In the discussion of the case by the court, we find this language: £ ‘ Counsel for Minnis contend that although heretofore we have held that tort judgments against more than one defendant are not divisible and that a reversal as to one such defendant works a reversal as to all, (Livak v. Chicago and Erie R. Co. 299 Ill. 218,) paragraph (/) of section 92 of the Civil Practice act permits a reviewing court to reverse a judgment as to one and to affirm' as to another defendant. The act provides:

“ ‘Sec. 92. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,—
“‘(f) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, as the case may require.’ ” The court then quotes certain sections of the statute and quotes at length from Livak v. Chicago & Erie R. Co., supra, then the opinion continues: “There is no substantial reason to impel us to adhere to the common law rule that a judgment is a unit where it is clear that no right of action existed, as a matter of law, against one defendant, the city of Chicago, but a cause of action is proved against the other defendant, Friend. In addition, section 4 of the Civil Practice act provides that the act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. Nor is there any merit in the contention of the appellant Friend that individual defendants might be permitted to pay a plaintiff and induce plaintiff to confess error as to them, nor in the contention that if a new trial were had a smaller verdict might be returned against Friend if the city, with its immense taxing power, were removed from the case. In support of this last contention counsel for Friend rely upon Washington Gas Light Co. v. Lansden, 172 U. S. 534. That was a libel suit involving a showing of the financial 'ability of the corporation impleaded with certain of its officers as defendants. In reversing the judgment against the gas company it was properly held that a new trial should be allowed as to the remaining defendants, for the reason that this evidence as to the corporation’s financial condition had been improperly admitted and tended to prejudice the individual defendants. No such testimony was given in this case. Such an injustice will not result to the defendant Friend if the judgment be affirmed as to him. We hold that under the Civil Practice act the judgment is not a unit but is divisible.” The judgment of the trial court was reversed as to the city of Chicago, but affirmed as to the defendant, Friend. In the case of Rhoden v. Peoria Creamery Co., 278 Ill. App. 452, we held the law to be as stated in Minnis v. Friend, supra. To the same effect is Adlcins v. Strathmore Co., 278 Ill. App. 183; Spelina v. Sporry, 279 Ill. App. 376.

It is therefore our conclusion that the judgment against J. L. Stewart was null and void, but the judgment as to the other signers of the note was a legal and valid judgment. The judgment of the trial court is reversed.

Judgment reversed.


text:
    Anna Muir, Appellee, v. Elmer F. Muir, Appellant.
    Gen. No. 9,650.
    Opinion filed April 25, 1941.
    Rehearing denied June 24, 1941.
    W. J. Parish and V. A. Parish, both of Momence, for appellant.
    E. P. Harney, of Momence, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On October 2, 1939, Anna Muir filed a suit for a divorce in the circuit court of Kankakee county alleging that her husband, Elmer F. Muir, was guilty of extreme and repeated cruelty. In her complaint she alleged, that she was married on the 16th day of May A. D. 1937; that she resided with her husband until about the 1st day of September 1939; that on the 15th day of January A. D. 1938, the defendant struck her violent blows and used towards her opprobrious epithets and threw a magazine stand and a lamp on the floor, breaking* each of them; that on the 23d day of June 1939, the said Elmer F. Muir again struck her with his fist ten violent blows on the mouth, nose and shoulder and broke her glasses and left her body black and blue. The bill ends with a prayer for a divorce. The defendant was served with summons on October 2, 1939. On the 21st day of December A. D. 1939, a default was entered against the defendant, and the court proceeded to hear evidence of the plaintiff to sustain her charges of cruelty as alleged in the complaint.

On December 21, 1939, the court entered its decree in which it finds that there was due service upon the defendant, Elmer F. Muir; that the court had jurisdiction of the subject matter and the parties to the action, and that Elmer F. Muir failed to answer the complaint, and having failed to do so, was in default. The court then, by its order, found and decreed that the complaint be and the same is hereby taken as true and confessed by the defendant, and that the equities in the case are with the plaintiff.

The decree then recites: ‘ ‘ The court further finds, that the defendant, Elmer F. Muir, not regarding his marriage vows and obligations, has since his marriage to the plaintiff been guilty of extreme and repeated cruelty toward the plaintiff, as charged in the complaint, in that he has used toward her on many occasions obscene and abusive language, and on numerous occasions has struck her and otherwise subjected her to personal violence; that on the 15th day of January, A. D. 1938, the said Elmer F. Muir struck the plaintiff a violent How on her chest and pushed her rudely and violently across the room and used toward her at the same time violent and opprobrious epithets and in a violent rage of temper threw a magazine stand and a lamp on to the floor breaking each of them; that again on the 23d day of June, A. D. 1939, in her residence at Momence, Illinois, the said Elmer F. Muir struck her with his fist about ten violent blows on the mouth and nose and about her shoulders, breaking her glasses and seriously injuring her, causing her nose to bleed and her body to be black and blue from the beating; that on numerous other occasions the said Elmer F. Muir struck, beat, bruised and scratched plaintiff, and that on all of said times hereinbefore mentioned, his conduct was without reason or provocation.

“It is therefore ordered, adjudged and decreed, by the Court, that the marriage between the plaintiff, Anna Muir, and the defendant, Elmer F. Muir, be dissolved and declared null and void, and the same is hereby dissolved accordingly, and that the parties are, and each of them is, freed from the obligations thereof.
“It is further ordered, adjudged and decreed, that the plaintiff be, and she is hereby allowed to resume her former name of Anna Brassard.
“It is further ordered by the Court that the defendant pay the costs of this suit.
“Enter: Luther B. Bratton Judge.”

On January 15, 1940, the defendant, by Parish & Parish, his attorneys, entered a motion in said cause to have the decree modified, or set aside and states the ground for said motion, “That the decree of divorce entered herein was granted on default and without the cause of divorce having- been fully proved by reliable witnesses and by statute provided.” On April 4, 1940, said motion was argued and taken by the court under advisement until the 15th day of July when the motion to modify the decree was denied by the court. It is from this order of the court that the appeal is prosecuted.

It is first insisted that the court erred in granting the plaintiff her divorce without any corroboration of the acts of cruelty of which she testified. The appellant contends that the witness, ITilma Kinney’s testimony is incompetent. A reading of Hilma Kinney’s testimony discloses that she testified that on two occasions Mrs. Muir came to her house and exhibited bruises and marks that Mrs. Muir told her had been inflicted by the defendant, Elmer F. Muir. In the case of Berdell v. Berdell, 80 Ill. 604 at 606, the Supreme Court, in discussing corroborative evidence in a suit for a divorce, uses this language: “The complainant, in her evidence, testifies to numerous acts of personal violence on the part of her husband, which were unjustifiable and without cause or provocation, and if her evidence be true, there can be no doubt that a clear case for divorce was established. But independent of her evidence, on several occasions the marks of violence were discovered on her person by her neighbors, after she claimed to have received blows from her husband. While this character of evidence is not as satisfactory as if witnesses had been produced who saw the blows given, yet the bruises and marks observed and sworn to were competent testimony in confirmation of the evidence given by the complainant.”.

Since the decision of the court in this case, this practice has been followed in divorce cases where the charge is cruelty, and we find no case where this practice has ever been overruled or criticized by a court of review.

It is next insisted that the. court erred in granting a divorce because the evidence shows that the last act of cruelty committed by the husband against the wife occurred on June 23, 1938, and she lived with her husband until some time until the 1st day of August 1939. The bill filed and the decree of the court finds that the second act of cruelty was on a different date ■than that shown by the record. The court, in its decree, finds that the last act of cruelty occurred on June 23,1939. A reading of the whole record discloses that the transcript is in error in showing that this last act of cruelty was in 1938, but should be 1939. The court, by its decree (signed the same date as the hearing), has found this to be the correct date, and this court will assume that it is the correct date.

In appellant’s assignment of error there are other causes shown why this decree should be reversed, but they are not argued, so are considered waived by this court. We find no reversible error in the case, and the judgment of the trial court is hereby affirmed.

Affirmed.


text:
    Kathryn Paul, Administratrix of Estate of Clarence Lee Paul, Deceased, Appellee, v. Leroy Garman and Bernice Garman, Appellants.
    Gen. No. 9,651.

      Opinion filed April 25, 1941.
    Rehearing denied June 23, 1941.
    Frank A. Kerr, of Mount Morris, and James A. Penny, of Rockford, for appellants; Hall & Ddsher, of Rockford, of counsel.
    Martin V. Peterman, of Oregon, B. Jay Knight, J. E. G-oembel and Frederick H. Haye, all of Rockford, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiff is the administratrix of the estate of Clarence Lee Paul. While engaged in repair work on a public road at a place about one and one-half miles north of the town of Mount Morris, Illinois, Paul was killed on October 2,1939, by being hit by the automobile of the defendant, LeBoy Garman, which was being driven by his wife, Bernice Garman, who is also a defendant to the suit. It is conceded by the defendants that Bernice Garman was acting- as the agent of her husband at the time of the accident.

The suit seeking damages for the death alleged to have been caused by the negligent operation of the automobile by Bernice Garman, was tried before a jury which rendered a verdict of $10,000 in favor of the plaintiff against both defendants. From a judgment entered in that amount, the defendants have appealed.

There are several counts in the complaint charging the defendant, Bernice Garman, with the negligent operation of the automobile. The second count of the complaint is a wilful and wanton count and attention is called to the charging part of that count, which in substance alleges, that on October 2, 1939, Clarence Lee Paul was employed by the Bock Boad Construction Company as a laborer on a certain road construction project which the said company had contracted to build; that said project consisted of the surfacing of a public road running north from the city of Mount Morris; that as part of his duties, Paul was assigned to checking loads of gravel as they were dumped by trucks upon the road; that on October 2, 1939, Paul was so engaged in checking loads of gravel dumped on the road at a point about one and one-half miles north of Mount Morris; that trucks were driven on the road from the north toward the place where gravel had been previously dumped, turned around in the road so that they were backed in a southerly direction, and headed in a northerly direction. That, as the gravel was dumped, it was the duty of Paul to take from the driver of each truck, a card and to mark the card with the amount of gravel dumped from the truck; that about 6:30 o’clock p.m., on October 2, 1939, Paul was standing at the westerly side of one of the trucks, as it was standing in the center of the road; that at said time the left door of the driver’s cab of the truck was open; that the door was hung from hinges at the front of the cab; that at that time, Paul was standing between the door and the side of the truck; that it was dark, and the truck had its lights burning; that at the same time, another truck was parked in the center of the road a few feet north of the truck near which Paul was standing, which latter truck had its lights burning; that the lights of both trucks were visible for a long distance to persons coming from the north; that Bernice Garman was at that time, driving a Ford panel truck in a southerly direction on the road; that as she drove along the roadway, she knew that the roadway was under construction; that she saw the lights of the two trucks parked in the center of the roadway; that there was, to the west of the trucks, approximately eight feet of level ground on which an automobile could be driven with safety.

It is further alleged that it was the duty of Bernice Garman, as she was driving there, to drive at a speed reasonable and proper, and it was her further duty to so drive, operate, manage and control the automobile she was driving so as to have it under control, so as not to injure Paul, as he was lawfully upon the highway there; that notwithstanding her duties, the defendant, Bernice Garman, did wilfully, wantonly and maliciously drive toward said trucks at a high and dangerous rate of speed, to-wit: 50 miles per hour; that as she approached the most northerly of said trucks, she took her foot off the accelerator of her automobile, but at no time did she apply the brakes of said automobile; that as she passed the most northerly truck, she increased the speed of her automobile and drove it upon and against Clarence Lee Paul, as he was standing* beside the most southerly of said trucks, and upon and against the open door of the most southerly truck.

The answer of the defendants denied every allegation of negligence, and of wilful and wanton misconduct, admitting, however, the allegation that the* accident happened in the night when it was dark. The answer was amended by charging the plaintiff’s intestate with wilful and wanton misconduct in stepping out directly into the path of defendant’s automobile, without warning, and without looking.

The jury answered in the affirmative, a special interrogatory of the plaintiff. Was Bernice G-arman guilty of wilful, wanton and malicious misconduct in the operation of the automobile of LeRoy Carman, just before and at the time of the accident? A special interrogatory of the defendants asking if Clarence Lee Paul, just before, and at the time of the accident, was guilty of wilful and wanton misconduct, which was the proximate cause of his own death, was answered by the jury in the negative. Instructions were given on behalf of the plaintiff defining wilful and wanton misconduct, and if the jury found Bernice Carman guilty of wilful and wanton misconduct in the operation of the automobile she was driving at the time of the accident, contributory negligence of the plaintiff’s intestate, if any, would not constitute a defense to count two of the complaint.

At the trial, timely motions were made by the defendants for a directed verdict, seriatim, as to each particular count of the complaint. Defendants’ motion for a new trial, among* other grounds, relied upon the failure of the court to direct a verdict for the defendants as to count two. Motions were made by the defendants to set aside the special findings of the jury; and the refusal of the court so to do ivas assigned as a reason for a new trial, on the ground that the findings, and each of them, are against the manifest weight of the evidence.

It is contended by the defendants that there is no evidence in the record to support the wilful and wanton charge of count two, and that the refusal of the court to "withdraw the count from the jury is error, as a matter of law, requiring a reversal of the judgment and a remandment of the case for a new trial. The rule of practice stated in this contention is found in the case of Greene v. Noonan, 372 Ill. 286, which is cited by them in their brief. We quote from that case where the complaint contained counts charging negligence, and also a wilful and wanton count. “A defendant in a case of this character, facing a charge of wilful and wanton conduct, is placed at a serious disadvantage as compared with one charged merely with negligence, and where there is no evidence to support such charge, it is the court’s duty, on motion, to withdraw such charge from the jury, and failure so to do is, by reason of the character of the charge, error requiring reversal of the judgment, for no one may know what influence the charge, though not proved, may have had upon the jury, particularly since it has not been informed that it was not to be considered by it. The distinction in law between wilful and wanton conduct and mere negligence is not a matter with which the average juror is familiar. We are of the opinion that the refusal to withdraw from the jury, on appellants’ motion, the consideration of the wilful and wanton charges, requires a retrial of the cause.” It is also true that if there was no evidence from which the jury could find Bernice Garman guilty under the charge of wilful and wanton misconduct of count two of the complaint, it was error to submit to the jury the special interrogatory of the plaintiff. (Nosko v. O’Donnell, 260 Ill. App. 544.)

October 2, 1939, Clarence Lee Paul, was in the employ of a firm of contractors which had a contract with the public authorities to haul and spread gravel on the road. The road extends north from the town of Mount Morris to the city of Eockford. On that day employees of the .road contractors began hauling and dumping gravel on the road. The gravel was loaded into automobile trucks about seven to eight miles north of Mount Morris, and then hauled over the road southward where it was deposited on the road at a point immediately north of the gravel, which had been placed on the road during the day. The work on the road was progressing from the south toward the north. "When a truck came near the place where gravel was to be dumped on the road, it was turned around by the driver and propelled backwards, stopped and emptied on the road in front of the newly placed gravel.

In designating the job of the plaintiff’s intestate during the road repair work, the witnesses referred to him as “a checker.” It was part of decedent’s work to check the loads when they arrived at the dumping place by taking a ticket from the driver, place it over a ticket which decedent had bearing the name of the driver, and then punch both tickets.

At evening on the day of the accident, the road had been thus improved to a place about one and one-half miles north of Mount Morris. At that time, it was nearly dark and the headlights on the trucks hauling gravel were lighted, as they were being driven from the base of supply to the dumping place on the road. Two of the loaded gravel trucks arrived there about 6:30 o’clock p. m. One of these trucks, a Diamond-T, was being driven by the witness, Anthony N". Black; the other, a smaller truck, was being driven by the witness, Dudley McDonald.

Black was the first one of these drivers to arrive at the place where the gravel was being spread on the road. Following the usual practice, Black some distance from the freshly placed gravel in the road, turned his truck around and backed it toward Paul who was standing in the middle of the road by the gravel to indicate where the truck was to be stopped and unloaded. During this operation, Black opened the door on the left side of his truck, and leaned out of the open door in order to see Paul, and guide the truck toward him. When Black had his truck stopped in place to unload it, or very shortly before, McDonald arrived there, turned his truck around and backed it about 18 to 20 feet just in front of the truck in charge of Black. Paul, at this time, walked from the road back of the Black truck to the door of this truck on its left side; Black with his left arm reached for a rope on his truck, which is used to start the operation of the hoist, which elevates the forepart of the truck bed. With his right hand, he gave Paul his load ticket. Paul took the ticket and then passed in front of Black’s truck to the headlight on the left side of the truck. Underneath the light cast by this headlight, Paul found the ticket in his possession bearing the name of Black, and placing this ticket over the one given to him by Black, punched both tickets.

After punching the tickets, Paul walked to the open door of the Black truck, on its west side, to hand Black his load ticket. Paul was then standing facing the south, and about to turn from the outer edge of the open door toward Black, who was seated in the truck with his hand extended to receive the ticket. At this moment the defendant, Bernice Garman, traveling on the road southward in her husband’s panel Ford truck to Mount Morris, drove the truck against the door of the gravel truck in charge of Black. The door was supported by hinges, which permitted it to be swung toward the front of the truck. The impact of the Ford truck against the door of the gravel truck forced the door violently against Black’s wrist. No one saw the movement of Paul after the door was hit. Paul was found on the road 18 to 20 feet from the door of Black’s truck in an unconscious condition. He was taken to Dr. DuMont’s office in Mount Morris where he was given first aid treatment. The doctor testified that upon examination of Paul, he found that his left leg and right arm were fractured, and that his face and scalp were badly cut. Paul was removed to a hospital in Rockford where he died four or five days after the accident as a result (it is conceded by the defendants) of the injuries he received in the accident.

It is stated in the case of Bernier v. Illinois Cent. R. Co., 296 Ill. 464, that, “It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a willful or wanton act. Whether an act is willful or wanton is greatly dependent upon the particular circumstances of each case.” If there is any evidence in the case supporting the charge of wilful and wanton misconduct, the question whether any injury has been inflicted by wilful and wanton misconduct, is a question of fact to be determined by the jury. (Bernier v. Illinois Cent. R. Co., supra.) The particular facts and circumstances of the accident in the present case must be ascertained from the testimony to determine if there is any evidence tending to prove the wilful and wanton charge of count two of the complaint, and consider whether or not there is any evidence which, with all reasonable inferences to be drawn therefrom, will support the verdict. We must assume the evidence favorable to the plaintiff to be true, and view it in a light most favorable to the plaintiff. (Darmody v. Kroger Grocery & Baking Co., 362 Ill. 554.)

Before stating the testimony bearing particularly on the alleged wilful and wanton misconduct of the defendant, Bernice Barman, it should be understood that we have two questions before us: First — Is there any evidence proving the wilful and wanton count, and second — -Is the verdict based on the wilful and wanton count contrary to the manifest weight of the evidence? (Greene v. Noonan, supra; Barthelman v. Braun, 278 Ill. App. 384; Rhoden v. Peoria Creamery Co., 278 Ill. App. 452.) There was contained in the special interrogatory submitted by the plaintiff, the query, whether the plaintiff proved by a preponderance of the evidence, that Bernice Barman was guilty of wilful and wanton misconduct, as charged in the second count of the complaint. The affirmative answer to the special interrogatory of the plaintiff is binding on the trial court (upon the defendants’ motion to set it aside,) unless it is not supported by any evidence, or unless it is against the manifest weight of the evidence. In view of the law of Illinois relative to the effect of a verdict finding the defendant guilty of wilful and wanton misconduct, and the decision in Greene v. Noonan, supra, the answer of the jury to the special interrogatory of the plaintiff should not be permitted to stand if it is against the manifest weight of the evidence.

The plaintiff’s case rests on the testimony of Mrs. Barman, Black and McDonald who were called as witnesses by the plaintiff. Mrs. Barman was called by the plaintiff under section 60 of the Practice Act. After her testimony tending to prove the charge of the complaint that she was acting as the agent of her husband at the time of the accident, the plaintiff cross-examined her relative to her driving the Ford truck when the collision occurred, and about other facts and circumstances of the accident. She had testified at the coroner’s inquest concerning th¿ cause of Paul’s death, and the plaintiff used her testimony before the coroner for the purpose of impeaching her. She also testified on her own behalf after the plaintiff rested her case.

When examined by counsel for the plaintiff as a witness called under section 60 of the Practice Act, Mrs. Gl-arman testified substantially as follows, so far as her evidence is material to the questions now being considered by the court. “For a good quarter of a mile I could see that there were two vehicles of some kind there in the road. I met • an automobile forty rods ahead of the first standing car, and after I passed this automobile the lights of the two cars were shining in my eyes to blind me. The headlights of the two cars seemed real bright to me; they blinded me from the first time I saw them. I was going about forty miles an hour when I met the automobile and slowed down to about thirty miles an hour as I passed it, and I was going about thirty miles an hour when I got to the first truck. Did not put on my brakes as I drove the forty rods toward the trucks. I noticed that the first vehicle was a truck as I went by it. Did not put on gas and speed up as I went by first truck. When I got to the last one, as I started to speed up, and moved my foot over, I heard the click. I saw the .second truck, and as I got opposite, the front end of it, I could see nothing in my pathway. I do not know how close I drove to the front end of that truck. There was room for one car to pass. I had not increased the speed of my car; I was going to do so. The second truck was about twenty feet south of the first truck; I could see the second truck after I got past the first one. The lights on thé second truck blinded me. I could see just the lights on the second truck, and the end of the front fender. I could not see that the door of the second truck was open.” During this examination it was brought out that at the coroner’s inquest that she testified that she dimmed her lights as she passed the automobile traveling north; that she saw • the other two cars and thought they were coming toward her. That she drove over on her side of the road.

Anthony N. Black testified that his truck was standing in the middle of the road. The headlights on his truck were burning. That there were three kinds of lights on his truck — the first turn of a switch bringing on the road lights, a second turn, bright lights, and pressure on a floor button turning on the real bright lights. That when his truck was stánding there at the time of the accident, the headlights were on “road lights, which shine dim.” That just before the door was slammed, Paul was standing even with the open door ready to hand his ticket to him. The door was of steel and in perfect condition before the collision; that afterwards, the door was sprung and its side bent in, about six or seven inches. That he did not see the Garman car before the accident. On cross-examination he testified that with the road lights on, a driver of his truck could see 15 to 20 feet ahead of the truck clearly.

McDonald testified that the lower beam of the headlights of his truck were on while it was standing in the highway in front of the truck in charge of Black: ■ That he did not see the Garman car coming from the north, but that he saw it as it passed him, as he sat in his truck; that he just got a glimpse of the car, as it passed him; that in his opinion the car, as it passed him, was going 40 to 50 miles an hour; that he had no difficulty seeing objects at the time without lights.

It cannot be fairly said from Mrs. Garman’s testimony that it was proved by the plaintiff that she saw the decedent, Paul, standing by, or behind the open door of the truck before she drove her car against the door. It is gathered from the evidence that at the time of accident, it was twilight; as expressed by one of the witnesses, “it was deep dusk.” Paul was five feet and ten inches in height, weight about 165 pounds. On that evening he was wearing overalls, a blue shirt and gray sweater. Mrs. Garman testified that she thought she had clipped the bumper of the second truck:, and did not think she had done any damage. She stopped her car two or three telephone poles from the standing trucks, returned to the place of the accident, and offered to take Paul to a hospital.

It appears from the evidence that Mrs. Garman saw the trucks in the middle of the road as she approached them in her car at a distance of a quarter of a mile. She retarded the speed of her car to 30 miles an hour, while passing an automobile, and she was going at that rate of speed, — as she came toward the trucks — for a distance of 40 rods. It was nob dark at that time. We do not think it unreasonable to draw the inference from the evidence, at the close of the plaintiff’s case, that the defendant, Bernice Garman, was aware that the two vehicles were standing in the middle of the highway, as she drove toward them from a distance of a quarter of a mile. She did not use the brakes on the car she was driving while traveling 40 rods toward the trucks, and passed them at the rate of 30 miles an hour, according to her own testimony. The speed of her car when she passed the first truck, as testified to by McDonald, was between 40 and 50 miles an hour. She drove toward and passed closely by the trucks while she was blinded by these headlights, and she could not see whether or not there was anyone by the side, or about the trucks. It seems to us she drove without taking any precautions to avoid injury to a person about the trucks.

It is the duty of an operator of an automobile to keep a lookout for vehicles standing in the highway (42 C. J. p. 1016; Collins v. McMullin, 225 Ill. App. 430; James v. Motor Transit Management Co., 260 Ill. App. 246; Hogrefe v. Johnson, 271 Ill. App. 469). And when approaching such vehicle it is the duty of the operator of an automobile to observe whether there are any persons about the vehicle, and use reasonable care to avoid injuring them. (42 C. J. p. 1017; 34 A. L. R. p. 1513, and cases there annotated.) Where the driver of an automobile is blinded by the lights of another car and continues in his course and strikes a person to whom he owes the duty of exercising reasonable care to avoid injuring him, it is a question for the jury to decide whether the driver of the car was guilty of negligence. (Wedig v. Kroger Grocery & Baking Co., 282 Ill. App. 370, and cases there cited.)

Assuming, as we must, that the evidence in the record, at the close of the plaintiff’s evidence, is true and viewing this evidence in a light most favorable to the plaintiff, with all inferences which may reasonably be drawn from that evidence, it cannot be said as a matter of law, that there is no evidence proving the wilful and wanton count of the complaint. (Darmody v. Kroger Grocery Co., supra.)

There was no evidence introduced by the defendants materially contradicting the testimony of the plaintiff’s witnesses. We are bound by definite rules governing the disturbing of a verdict. (Corcoran v. City of Chicago, 373 Ill. 567, 569.) The verdict is not against the manifest weight of the evidence. The answer of the jury to the special interrogatory of the plaintiff, is not against the manifest weight of the evidence.

At the request of the defendants the court submitted to the jury the special interrogatory whether the decedent, Paul, was guilty of wilful and wanton misconduct which proximately contributed to his death. The answer of the jury is in the negative. Whether an act is wilful and wanton is greatly dependent upon the particular circumstances of each case. It is the peculiar province of a jury to weigh and consider. (Bohrer v. Denton, 306 Ill. App. 317.) It is clear that it cannot be said that the answer of the jury to this interrogatory is against the manifest weight of the evidence.

In the case of Carneghi v. Gerlach, 208 Ill. App. 340, page 345 it is stated: “It must be remembered that the sweeper was rightfully in the street, at the place where he was at work, and as to whether or not he was guilty of any negligence because his attention was on his work and not on the approach of appellant’s car, . or because, at that time, he had his back to appellant’s car while performing his work on the street, were all questions for the jury to determine; but he had a right to rely on the fact that the drivers of the automobiles using the street, who had knowledge of his presence and saw him at work, would exercise reasonable care in managing their automobiles not to injure him.” (See also, Leoni v. McMillan, 287 Ill. App. 579.) This latter statement we may supplement by saying that plaintiff’s intestate had a right to rely on the fact that drivers of automobiles using the highway would use reasonable care in keeping a lookout for standing vehicles on the highway, and exercise reasonable care to avoid injury to persons about the vehicles.

It is contended by the defendants that plaintiff’s counsel made improper argument to the jury, and persisted in doing so over the objections of the defendants. It is urged that counsel for plaintiff attempted in his argument, “to have the jury place themselves in the position of one of the parties to the suit”; also, that plaintiff’s counsel persisted in seeking to bring before the jury assumed facts not proved by the evidence, with intent to influence the jury improperly. The entire argument of counsel for the plaintiff to which the objections are made, appears in the additional abstract of the record. We have examined the argument and considered the objections made thereto by counsel for the defendants. The objection that the plaintiff’s attorney attempted in his argument to have the jury place themselves in the place of a party to the suit is not well founded. We are of the opinion that no substantial error was committed by the court in refusing a new trial, on the ground that plaintiff’s attorney made improper argument to the jury.'' The matter is one which must be left largely to the sound discretion of the presiding judge, to decide, under all the circumstances of the case in view of the remarks preceding the argument objected to and the temper and character of the jury, whether or not a new trial should be. granted for the misconduct of counsel by way of improper argument to the jury.- — Chicago City Ry. Co. v. Creech, 207 Ill. 400.

It is contended that the court erred in refusing to give defendants’ instruction number 2, which defined contributory negligence. The substance of this instruction was given in other instructions. As the jury by its answer to plaintiff’s special interrogatory found the defendant, Bernice Barman, guilty of wilful and wanton misconduct, the court did not err in refusing to grant a new trial because of the denial of this instruction. Other objections are made by the defendants to instructions given for the plaintiff, but it is our opinion that viewing the instructions as a series, there is no reversible error in the instructions.

It is contended that the damages awarded by the jury are' excessive. At the time of his death Clarence Lee Paul was just past 31 years of age. He left surviving as his heirs, his wife and four children, the oldest of whom was 11, and the youngest 7 years old. He was strong and healthy, and was farming a large farm as a tenant; his wage as a checker when he was killed was 50 cents an hour. His expectancy of life was 29.83 years. There is evidence in the record from which it could be deduced, or estimated, that his gross annual income was between $1,500 and $2,000. As is stated in the case of Hartray v. Willett Co., 232 Ill. App. 193, 220: “In case of a husband’s death, through another’s negligence, such damages are allowed as are equivalent to the pecuniary loss thereby sustained by the decedent’s wife and children; the amount, in all probability he would have earned by his work during " the rest of his life, estimated as probable, and which would have gone to the benefit of his wife and children.” Considering the elements which are to be considered, and as they here appear in evidence, in awarding damages for wrongful death, we do not consider the amount of the verdict excessive.

It is also contended by the defendants that the plaintiff’s counsel unfairly and prejudicially used the testimony given by Bernice Garman before the coroner to impeach her evidence when she testified as a witness called by the plaintiff, under section 60 of the Practice Act. Defendants complain that plaintiff’s counsel did not read to her, while so attempting to impeach her evidence, the whole of each of her answers made at the coroner’s inquest, but only part of such answers. After counsel objected to this method of examination, plaintiff read again part of an answer of Mrs. Garman before the coroner. Upon objection being* again made by counsel for the defendants, plaintiff’s attorney read the whole of her answer made at the coroner’s inquest. We have examined the record in light of these objections made by the defendants, and there is not reversible error in the record as contended by them.

There being no reversible error in the record and finding, as we do, that the verdict of the jury is not against the manifest weight of the evidence, the judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Matchett

text:
    Lucya Gliwa, Appellee, v. Washington Polish Loan and Building Association, Appellant.
    Gen. No. 41,575.

      Opinion filed May 19, 1941.
    Supplemental opinion filed and rehearing denied June 17, 1941.
    Poppenhusen, Johnston, Thompson & Raymond and Kargman & Kargman, both of Chicago, for appellant; Albert E. Jenner, Jr., of Chicago, and Wallace I. Kargman, of counsel.
    Keener & Keener, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

I.

This appeal by defendant is from a summary judgment for $13,152.70, and an order denying' a motion to set it aside. The procedure was under section 57 of the Civil Practice Act (Smith-Hurd Ann. Stats., ch. 110, par. 181, p. 485 [Jones Ill. Stats. Ann. 104.057]); Bule 15 of the Supreme Court (Smith-Hurd Ann. Stats., ch. 110, § 259.15, p. 523 [Jones Ill. Stats. Ann. 105.15]).

Complaint was filed May 22, 1939. Motions to strike were denied but an amended complaint was filed. It is in two counts. The first consisting of seven paragraphs is in substance for money had and received and against the corporation alone. The second count charged several defendants with conspiracy to appropriate plaintiff’s money. The judgment order reserved for future trial the action stated in the second count.

The first count alleged (naming particular dates) the deposit by plaintiff with defendant, beginning June 15, 1920, and ending July 10, 1926, items amounting to $9,040. It also alleged a credit on that date of $960 interest, and delivery to plaintiff by defendant “Certificate of Paid-Up Stock,” etc., $10,000, par value $100 per share. It avers that until June 1935, defendant acknowledged this indebtedness and made pay- ' ments to plaintiff (stating items) but thereafter denied its relationship and debt to plaintiff. Another paragraph charged defendant had accumulated large sums of money since 1932, applicable to the retirement of this certificate.

Defendant answering admitted incorporation; denied plaintiff opened an account June 15, 1920; credit of interest; delivery of certificate; that plaintiff had $10,000 on deposit; was the owner of paid-np shares; that defendant acknowledged the indebtedness or made payments thereon, but admitted it denied any such debt in 1935. The answer further set up res adjudicata and the statute of limitations as defenses.

A motion to strike was denied. Plaintiff moved for summary judgment supported by an affidavit of twenty-three paragraphs with fifteen exhibits, a transcript of testimony of Martin Oleszkiewicz upon oral deposition, a like transcript of a part of a similar examination of plaintiff, and the affidavit of a handwriting expert with exhibits attached. In opposition defendant submitted its verified answer, amendment and motion to strike plaintiff’s motion, two counter-affidavits and a transcript of testimony of plaintiff.

II.

Defendant says the trial court should have held the summary judgment procedure inapplicable because of the complex nature of the case. From the first enactment of a summary judgment procedure statute in this State (Laws of Illinois, 1853, p. 172), in the adoption of this procedure in England (1855, See Bills of Exchange Act, 18 and 19, Vicxt. c. 67), in the Practice Act of 1872 (Rev. Stat. 1874, ch. 110, § 37), later in section 55 of the Practice Act of 1907, and now in section 57 of the Civil Practice Act, it is said the intention is manifested to limit summary procedure to cases simple in their nature. Workman & Clark & Co. v. Brazileno, 1 K. B. 968, 978; Lagos v. Grunwaldt, 1 K. B. 41; Fisher v. Sun Underwriters Ins. Co. of New York, 55 R. 1.175,179 Atl. 702, 705; Clark & Samenow, 38 Y. L. J. 423, 424; Berick v. Curran, 55 R. I. 193, 179 Atl. 708, 710. The authorities so hold but do not undertake to lay down any precise rule. Manifestly this is a matter which must be left largely to the discretion of the trial judge. He should be quick to sense the actual situation. The mere fact that defendant presents complicated defenses may prove he has astute, able and learned counsel. It does not necessarily prove the case is complex or complicated. To so hold would emasculate the statute. The statute limits the procedure to actions on contracts, express or implied. If further limitation was thought necessary or wise it would undoubtedly have been stated in the statute or rule. The case here is on an implied contract. It is in substance for money had and received. The complaint alleges deposits by plaintiff with defendant, and defendant’s refusal to repay. The evidence is largely in possession of the association. The case is not complicated except as defendant makes it so. The trial judge thought so. We do not disagree.

III.

Defendant points out the rules which guide the courts. The procedure may not be used to impair right of trial by jury. Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523. The purpose of the procedure is not to try an issue of fact as that term is used in law but rather to try whether there is an issue of fact between the parties within the legal meaning. The method is necessarily inquisitorial. The pleadings (important) are not controlling. If it appears from facts stated in affidavits or documents that the answer pleaded is sham or false or frivolous it will be disregarded. If there is a material issue of fact it must be submitted to a jury. In Berick v. Curran, 55 R. I. 193, 179 Atl. 708, 710, this procedure is well described as, “a two-edged weapon — useful if it precludes the interposition of defenses for delay, but dangerous if it deprives a defendant of the opportunity to have a trial of seriously contested questions of fact or law.”

The authorities say affidavits for plaintiff should be construed strictly, those for defendants liberally. Shientag, 4 Fordham L. R. 186; Gleason v. Hoeke, 5 App. Dist. of Col. 1, 4-5; Fidelity & Deposit Co. v. United States for use of Smoot, 187 U. S. 315, 320; Wells v. Alropa Construction Corp., 82 Fed. (2d) 887, 889, are cited.

Plaintiff’s right to judgment should he free from doubt. Lord Esher in Sheppards & Co. v. Wilkinson & Jarvis, 6 T. L. R. 13, and many other cases.

Even if defense papers are found insufficient, judgment should not be ordered unless plaintiff’s affidavit (strictly construed) leaves no question of defendant’s liability. People for use of Dyer v. Sanculius, 284 Ill. App. 463, 474-475; Weiss v. Goldberger, 209 App. Div. 615, 205 N. Y. S. 1, 3; 4 Fordham L. R. 186, 216; Wm. H. Frear & Co., Inc. v. Bailey, 127 Misc. 79, 214 N. Y. S. 675, 677.

If the defense is “arguable,” “apparent,” made in “good faith” it should be submitted to a jury. Fidelity & Deposit Co. v. United States for use of Smoot, 187 U. S. 315, 320. The court is bound to accept statement of facts as true when alleged in defendant’s affidavits. The whole record must be considered.

Conceding the rules to be as stated it remains to apply them in this case. As stated, plaintiff’s action in so far as this defendant is concerned is an action for money had and received. The Supreme Court has held this an appropriate kind of action in a case of this kind against a building and loan association. Prairie State Loan & Bldg. Ass’n v. Gorrie, 167 Ill. 414, 418.

IV.

The affidavit of plaintiff shows defendant is an Illinois corporation, she the widow of Jacob Gliwa with whom she jointly owned real estate in Cook county. He died December 9, 1919, and she received from the Industrial Commission an award of damages of $4,037. She afterward sold the real estate to Bronislaw Pisarek and Katarzyna Pisarek for $4,100 of which $100 was paid in cash. She had an account with defendant opened June 6,1922, when she deposited $300. It was No. 834. She had an account of $1,500 with another association. October 2,1926, she withdrew the $1,500 by check and deposited it with defendant. The Pisareks (to whom she sold her real estate) had an account with defendant, No. 665, which would mature for $2,000 in April 1927. Jozef Stachnik (Mrs. Pisarek’s father) had an account with the defendant, No. 582, for $2,100 which would mature in October 1926. These were transferred to plaintiff’s account in payment for real estate. This was done through Michael P. Nowaczyk, authorized secretary of defendant. Plaintiff then executed a deed conveying the real estate.

April 15, 1932, at the office of the association, Michael P. Nowaczyk, the secretary, took from plaintiff her pass book and certificate. In lieu thereof he gave to her a judgment note, a photo static copy of which is attached to the affidavit (exhibit 15). In the left-hand corner is a number. In a blank in the right-hand corner appears the figures $9,610. It is dated at Chicago, 4-15-1932, and in substance states that one year after date the makers promise to pay that sum with interest at 3 per cent to the order of Lucya Grliwa. The note is signed by Michael P. Nowaczyk and Stella Nowaczyk. In the lower left-hand corner is the impression of the large Notarial Seal of Michael P. Nowaczyk. Size, color and quality of the paper indicate it is an imitation of the stock certificates issued by defendant association, and well designed to appear to plaintiff to be such certificate. On the back of this “judgment note” 29 payments are indorsed, all but one in the handwriting of the secretary. The last payment indorsed is June 19, 1935. The affidavit of plaintiff shows this “judgment note” was delivered to her on the date it bears at the office of defendant by its secretary, and at that time defendant owed to her this sum of money. Judgment was entered for that amount with interest less payments.

The affidavits for plaintiff are based upon personal knowledge of those who made them as required by rule 15 and section 57 of the Civil Practice Act. The affidavits set forth with particularity the facts upon which plaintiff’s cause of action is based. Copies of papers upon which plaintiff relies are attached. These affidavits consist of facts admissible in evidence which affiants, if sworn as witnesses, could testify about. Section 57 of the statute provides that upon filing of such affidavits by plaintiff judgment “shall upon plaintiff’s motion” be entered in the plaintiff’s favor unless by affidavit of merits defendant shall show that he has a sufficiently good defense on the merits to all or some part of the plaintiff’s claim to entitle him to defend the action.

V.

The question comes to this, whether defendant’s affidavits present any defense. Section 2 of rule 15 provides: “Affidavits of merits to prevent the entry of a summary judgment shall be drawn in the same manner as the affidavits mentioned in the foregoing paragraph of this rule.”

We understand this means that just as plaintiff in supporting affidavits must recite facts to which the affiants could testify in open court, affidavits for defendants must recite facts to which the affiants could testify in open court.

The issue of fact is whether defendant owes plaintiff the amount of money stated in the note. We have gone through the counter-affidavit of fifteen paragraphs, covering pages 123 to 128 of the abstract. The counter-affidavit denies the defense is only for delay. It submits the affidavit of Martin J. Oleszkiewicz which says Account No. 834 “was liquidated and satisfied”; that plaintiff under the records in the account has no money due her. Answering paragraph 9 of plaintiff’s affidavit, the counter-affidavit states “as hereinabove set forth, account number 834 and the records of the Association disclose that there is no money due to the plaintiff under account number 834, and further that the aforesaid account number 834 represented transactions from June 6, 1922, to July 27, 1926, and that under the statute in such cases and under the answer all reference to such transactions during the years 1922 to 1926 is inadmissible as against defendant.” As to the judgment note paragraph 8 of the counter-affidavit says, “Defendant denies the allegations in such affidavit that it authorized its Secretary Michael P. Nowaczyk to give plaintiff a judgment note, being Exhibit 16 attached to the affidavit, and states that under no circumstances nor at any time did it ever authorize Michael P. Nowaczyk or any other officer or person to issue a judgment note to the aforesaid plaintiff.”

It would extend the opinion unduly to recite answers to other paragraphs similar in form and kind.

VI.

June 25,1940, the matter came on for hearing. The trial judge said defendant had filed rather “peculiar documents. ’ ’ That one was a motion to strike the motion for summary judgment, the gist of defendant’s motion being that because defendant had filed an answer denying liability and also raising the question of the statute of limitations, the motion of plaintiff for summary judgment should be stricken. The judge pointed out that defendant had failed to observe the rules and made no such denial of any of the facts set forth in plaintiff’s affidavit as would be permissible if the maker of the affidavit had been on the witness stand or attempted to testify. The judge said he would, therefore, entirely disregard the motion and the affidavits filed by defendant and examine the affidavit of plaintiff in support of the motion for summary judgment. He announced plaintiff’s motion would be sustained. The attorney for defendant and the court then engaged in a colloquy, in part as follows :

“The Court: How did the funds get in the hands of Michael P. Nowaczyk?
Mr. Kargman [Defendant’s attorney]: Because
Lucy a Grliwa was dealing personally, privately with Michael P. Nowaczyk.
The Court: Where does this appear from your affidavit?
Mr. Kargman: Well, your Honor, it does not appear in my affidavit for this reason. . . .
The Court: Yes, but that must appear. Your affidavit of merits states nothing..
Mr. Kargman: Well, if your Honor please, our affidavit of merits states that deposition hearings were had.
The Court: Your affidavit of merits states absolutely nothing, because it did not make even a remote attempt to follow the rules.
Mr. Kargman: I will file an affidavit within an hour showing clearly and sufficiently that the records of the Association do not show—
The Court: Not what your records show. I want the facts.
Mr. Kargman: Well, those are the facts. How else can you show facts? Is there a better fact than records ?.
The Court: Oh, yes, the facts are better than records.
Mr. Kargman: If you think I made a mistake—
The Court: I do not. If I thought you had a defense I would give you the opportunity to present it properly. I do not believe you have a defense.
Mr. Kargman: ... I am asking in the interests of my client and in the interests of justice that a full and complete hearing be given to my client. I will file such an affidavit.
The Court: That motion will be denied.
Mr. Kargman: Your Honor isn’t granting me that one right?
The Court: No. No. Because it is quite clear what the whole story is. This illiterate woman has gained an advantage in this proceeding. She should have the full benefit of it and I am going to give it to her.
Mr. Kargman: ... Is it because this is a corporation that it should be penalized?
The Court: Mr. Counsel—
Mr. Kargman: I am highly incensed at this proceeding, Your Honor.
The Court: I know you are.”

Summing up the facts as the same appeared from affidavits and documents of both parties, the court said: “There is not a word of denial that these moneys were brought to the office of the corporation. Judgment will be in favor of the plaintiff.”

The statement of the trial judge seems justified. There was no attempt on the part of defendant to comply with rule 15. Under the rule and the statute plaintiff was entitled to judgment unless her affidavits were insufficient.

VII.

Defendant argues plaintiff was not so entitled because (he says) there was a fatal variance between plaintiff’s pleadings and her summary judgment affidavit. The variance is said to be that the complaint was based on a $10,000 certificate of paid-up stock in defendant corporation, while the proof tended to show a case based on a judgment note for $9,610. The obvious answer is that count 1 of the complaint is not based upon either of those documents. Plaintiff’s action (as we have said) is in substance for money had and received, which is appropriate to this situation. Prairie State Loan & Bldg. Ass’n v. Gorrie, 64 Ill. App. 325, affirmed 167 Ill. 414. The allegations as to the stock certificate were mere surplusage and therefore immaterial in so far as the question of variance is concerned. Pennsylvania Co. v. Conlan, 101 Ill. 93; Chicago West. Div. R. Co. v. Mills, 105 Ill. 63; Devine v. Illinois Cent. R. Co., 156 Ill. App. 369; Ill. Rev. Stat., ch. 110, § 43, par. 167 [Jones Ill. Stats. Ann. 104.043].

It is next urged that the first count of the complaint was fatally defective and that substantial defects were not waived by answering because the complaint is insufficient to sustain a judgment, and for that reason the judgment should be reversed on review. Cottrell v. Gerson, 371 Ill. 174, 179, affirming 296 Ill. App. 412. Moreover, it is said the motion for summary judgment reopens the question of the sufficiency of the complaint. Defendant cites Shientag, 4 Fordham L. R., 186, 203; Fuller v. General Accident Fire & Life Ins. Co., 224 Wis. 603, 272 N. W. 839, 842. We do not question the rule as stated. We have already said the allegation of the first count as to the certificate was surplusage. It is objected the statements in the complaint as to money had and received are mere conclusions. If this is conceded it would not follow that the allegations were waived by answering or that the judgment when reviewed would be reversed.

It is further urged in this connection the court erred in failing to dismiss count 2. Defendant then proceeds to argue this count also is fatally defective. The count, is not before us. We will not discuss- it until it is. We do not decide moot questions.

VIII.

It is contended that since the answer set up the statute of limitations and plaintiff did not file a reply, the defense of the statute stands admitted on the record and the judgment should therefore be reversed. Watt v. Cecil, 368 Ill. 510; Lentz v. Miller Rubber Products Co., 296 Ill. App. 646; Northern Trust Co. v. Archbold, 303 Ill. App. 486, 494; Wiedoft v. Frank Holton & Co., 294 Ill. App. 118,126, are cited. That the rule applies as well on motion for summary judgment as on trial, defendant cites Gardenswartz v. Equitable Life Assurance Society, 23 Cal. App. 745, 68 Pac. (2d) 322. We do not question the general rule but the situation here is unusual in that the allegations of the complaint anticipated and negatived the defense of the statute of Limitations. In such case the general rule is not applicable. City of Flora for use of Liberty Mut. Ins. Co. v. Bryden, 300 Ill. App. 1.

IX.

Defendant after the entry of the judgment made a motion to vacate supported by the affidavit of its secretary, to which a number of exhibits were attached. Allowance of such motion is ordinarily within the discretion of the court. Treutler v. Halligan, 86 Ill. 39. Defendant had notice of the first hearing under rule 21, section 1 of the circuit court, and full opportunity to reply to plaintiff’s affidavits and documents. It does not undertake to excuse failure to present at the hearing information now first given on motion to vacate. It is not intended cases should be heard piecemeal under this procedure. The trial judge was of opinion the original affidavits of defendant were wilfully evasive. We agree. The affidavit in support of the motion to set aside tends to confirm that view. Reconsideration should rarely be necessary after a decision on a motion of this kind. Shientag, 4 Fordham L. R. 218. If further affidavits submit new matter, plaintiff should have an opportunity to reply to them. National Builders Bank v. Simons, 307 Ill. App. 562. The documents attached to this affidavit evidently had been in the possession of defendant at all times. There is nothing in them which would justify allowance of the motion. Attached to the affidavits were a series of checks payable to plaintiff issued in 1934, and disproving’ its defense of the statute of limitations. It seems to still hold out other checks issued in 1935. A motion to vacate a summary judgment is proper. The mover should, however, make full and frank disclosure of evidence in his possession.

X.

Plaintiff gave defendant money. That fact is established by all the evidence. Eeceiving the money a legal obligation was created. Defendant held the money deposited by plaintiff for plaintiff’s use. How was that obligation discharged if it was in fact discharged! Defendant undertakes to interpose merely technical defenses such as the statute of limitations (now disproved by the checks produced by it on the motion to set aside the judgment but withheld on the hearing). Defendant’s affidavits leave any meritorious defense it may have a matter of mystery. Did its secretary convert the funds paid in by plaintiff to his own use! If this is true defendant knows it and failed to frankly disclose. Manifestly the “judgment note” was either the obligation of defendant or the personal obligation of the signers. Defendant knows which. For some reason it fails to set forth the facts from which that ultimate question could be determined. Was the obligation that of the corporation or the private obligation of the secretary! The trial judge rightly said: “Not a single word in support of that defense is contained anywhere in the affidavits of defendant. ’ ’ The affidavits of plaintiff show the obligation is that .of the corporation. If it is not the obligation of defendant but another, defendant under the statute and Supreme Court rule should set forth the particular transactions by which the obligation of defendant was transferred into the personal obligation of its secretary. The facts should have been- set up. This was not done. Defendant’s affidavits (including those submitted on the motion to set aside the judgment) leave its defense a matter of mystery and conjecture. Defendant cannot successfully defend in this proceeding that way.

Judgment affirmed.

O’Connor, P. J., and McSurely, J., concur.

Supplemental Opinion.

The petition for rehearing says the court overlooked its argument that the sum of $3,803.96 allowed for statutory interest at 5 per cent from April 15, 1932, to date of judgment, was erroneous. Plaintiff admits there was an error of $261.26 in the computation of this item and has filed a motion for leave to file a remittitur which we have allowed. The point that statutory interest should not have been included in the amount found due was not made in defendant’s ‘ ‘Points Belied On” in its original brief. These points have been substituted for assignments of error. For the first time the point was made in defendant’s reply brief, and plaintiff had no opportunity to answer it. We hold, however, plaintiff is entitled to recover interest under section 2 of the Interest Act (Ill. Rev. Stat. 1939, ch. 74, p. 1905 [Jones Ill. Stats. Ann. 67.02]).

Defendant suggests we overlooked “admissions” contained in plaintiff’s prior pleadings, the transcript of examination of defendant’s books and records and of defendant’s oral examination. It also complains ' the opinion does not mention the fact of the death of Nowaczyk in 1935. The death of Nowaczyk was an admitted fact. While the opinion does not mention it, we were not unaware of it and assumed it to be true. Nor was the evidence which defendant again points out overlooked. The simple undisputed facts are that defendant, through its secretary and at its office, received plaintiff’s money to the amount stated in plaintiff’s affidavit, and the testimony submitted in defense fails to show that defendant has repaid it or in any legal way ever satisfied the obligations arising out of the receipt of it.

The opinion will be slightly modified and the petition for rehearing denied.

Petition for rehearing denied.


author: Mr. Justice Huffman Mr. Justice Dove

text:
    In re Estate of Harry M. Peirce, Deceased. August Wierich Peirce, Appellant, v. Richard K. Peirce et al., Appellees.
    Gen. No. 9,642.

      Opinion filed May 27, 1941.
    F. J. Campbell and James L. Coburn, both of Galena, for appellant.
    Louis A. Nack and Donald M. Baton, both of Galena, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This case involves the question of who is entitled to administer the estate of Harry M. Peirce, deceased. The said deceased was legally married in the State of Montana, on June 30, 1892, to Theresa Thompson. One child was born of that marriage, the appellant herein.

In 1905, while enroute by train to California, Mr. Peirce became acquainted with a young lady whose home was on a farm near Monmouth, Illinois. He later visited her at her home. In 1907, she went to Mexico where, according to a prearranged plan, she met Mr. Peirce, and there at a place named Gomez Pa Lacois, they contracted a marriage by a religious ceremony. She appears in this record as Era Peirce. From 1907 until 1915, four children were born to these parties, namely; Henry M., Patricia, Richard K., and George C. Peirce.

Harry M. Peirce died in 1939, a resident of the city of Galena, and a citizen of Illinois. Following his death, and upon petition of Richard K. Peirce, a son of the deceased and Era Peirce, letters of administration were issued by the county court of Jo Daviess county to the said Richard K. Peirce. Appellant filed his petition to have such letters revoked on the ground that the person to whom they had issued failed to make proof of heirship. Appellant claimed that he was the only heir of the deceased. Upon a hearing on appellant’s petition, the county court found that the deceased left surviving him Era Peirce as his widow, the appellant herein, and the four above named children which were born to the deceased and Era Peirce. Appellant appealed from that finding to the circuit court where the same finding was made as to the heir-ship together with judgment that letters of administration had properly issued to appellee as a child and heir of the said deceased.

The position of appellant with respect to the right of appellee to so act arises from the fact that the deceased and Era Peirce were never married, and that appellee was not a son of the deceased born in lawful wedlock.

It appears that after Era Peirce joined Mr. Peirce in Mexico, they lived there for some time; that upon leaving Mexico, they lived in Cuba; and later in New York State, which was followed by a residence in the State of Texas. In 1915, they returned from Texas to Mrs. Peirce’s home near Monmouth, to live. After this, Mr. Peirce made trips to various States looking for a new location. One of the States which he visited at that time was the State of Nevada. Mrs. Peirce remained at the home near Monmouth during this period of time. While in Nevada, he instituted suit for divorce against his wife, Theresa Thompson Peirce. She came there and contested the proceedings, which resulted in her securing a divorce from him together with decree for alimony of $25 per month. Sometime following the divorce proceedings, Era Peirce joined Mr. Peirce in Nevada, where she states they remained for three or four weeks, then returning to their home in Illinois. Following their return to Illinois, they settled in the city of Gralena. Here they resided until 1920, when they separated, and Mrs. Peirce and the four children returned to the old home near Monmouth, where they have since continued to live.

It is the position of appellee that upon the decree of divorce being granted in Nevada, the disability theretofore existing was removed, and that immediately and automatically Mr. Peirce and Era Peirce became husband and wife by common law marriage, which status is recognized in that State; and since it was a legal relationship in that State, it therefore became effective in Illinois upon their return here. In this respect, appellee refers to the cases of the State v. Zichfeld, 23 Nev. 304, 46 Pac. 802; 34 L. R. A. 784; Parker v. De Bernardi, 40 Nev. 361, 164 Pac. 645; and Clark v. Clark, 44 Nev. 44, 189 Pac. 676. These are all Nevada cases and announce the rule that, “If parties desire marriage and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation -thus matrimonially meant and continued after the disability is removed will, in law, make them husband and wife from the moment that such disability no longer exists, . . . .” Clark v. Clark, supra, page 678. However, in each of the above cases, the parties involved were citizens of the State of Nevada, and not merely sojourning there. Also, it will be observed that when Era Peirce joined Mr. Peirce in Nevada, there was nothing to prevent a legal marriage if they desired to render their union matrimonial. The disability had been removed prior " to the time she joined him.

The amendatory Act of 1905, to section 4, chapter 89, on marriages, added the latter part of section 4, as it now exists, which in substance, declares common law marriages null and void unless the contracting parties obtain a marriage license and have the marriage solemnized as required in other cases, and providing that children born to such parties shall be deemed legitimate upon the parents obtaining a license to marry and being married as provided by statute. This situation is referred to in the case of Wilson v. Cook, 256 Ill. 460, where the right of a State to prescribe its marriage laws is announced, and where it is stated on page 466, of the opinion, that there can be no presumption of a common law marriage even though the disability which existed had been removed.

Courts which hold common law marriages to be valid are of those jurisdictions where such marriages are not prohibited by positive law, and they only undertake to lay down a rule of law for citizens of the particular jurisdiction. We are not of the opinion that the law of Nevada, or the cases referred to by appellee, indicate any intent to raise the status of common law marriage in a manner inconsistent or conflicting with the law of marriage prevailing in the State of the actual domicile of the parties. Such a situation would fail to show any governmental interest that was superior to that of the sister State. Therefore we shall consider the sanction of common law marriages by Nevada to be intended to apply only to its own citizens.

Nothing appears here to indicate that during the three weeks Mrs. Peirce was with Mr. Peirce in Nevada, either of them had the intent requisite for the acquisition of a domicile in that State. Considering the station in life of these parties as disclosed by the record, there appears to have been but one State that was closely concerned with the family life following their return from Texas, and that was the State of Illinois. They were not living together in Nevada as citizens of that State at the time the disability was removed. Era Peirce was a citizen of Illinois, and was residing here at such time.

Each State has the right to determine and establish laws regulating and prescribing what shall constitute the marriage relation for its own citizens. Cohabitation meretricious in its origin, cannot be considered to have ripened into a common law marriage in a jurisdiction where the parties were not citizens, but only temporarily residing.

Sentiment and companionship go far in the sum of human lives. It is with sympathy, patience, and understanding that we view the disappointments and sorrows of life. They teach many things not found in books. However, an affirmance of this case, in our opinion, would violate the intent and purpose of the statute of this State.

The judgment is reversed and the cause remanded with directions to grant the petition of appellant to revoke letters of administration issued to appellee.

Reversed cmd remanded with directions.

Mr. Justice Dove

specially concurring: I concur in the judgment reversing and remanding this cause.'


author: Mr. Presiding Justice O’Connor

text:
    Lee Nathaniel for Use of Marks Credit Clothing, Inc., v. Wilson and Company. Landon L. Chapman, Appellant. Wilson and Company and Marks Credit Clothing, Inc., Appellees.
    Gen. No. 41,643.
    Opinion filed June 9, 1941.
    Rehearing denied June 23, 1941.
    Landon L. Chapman and .Karl M. Milgrom, both of Chicago, for appellant.

      David Sosson, of Chicago, for appellees; Morton J. Hauslinger and Edward Levett, both of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

December 13, 1939, Lee Nathaniel purchased merchandise from the Marks Credit Clothing, Inc., for which he agreed to pay $64.79 in weekly installments of $2.50 every Saturday. At the time the purchase was made Nathaniel executed an assignment of his wages, he then being employed by Wilson & Company, to the clothing company. March 5, 1940, the clothing company served notice on Wilson & Company of the assignment of wages and demanded payment of the $64.79 which was then due under the contract of purchase because Nathaniel had made default in the weekly payments. After the demand was made and within 30 days thereof, the instant suit was brought. During the pendency of the suit, Landon L. Chapman, by leave of court, filed his intervening petition in which he alleged that September 25, 1939, Nathaniel, who was then working for Wilson & Company, had made an assignment of his wages to him from which it appeared Nathaniel owed Chapman $125, which he agreed to pay in weekly installments of $5. That October 31,1939, Nathaniel being in default, Chapman served notice of the assignment of wages and made a demand on Wilson & Company under the Assignment of Wages Act, Ill. Rev. Stat. 1939, ch. 48, p. 1559 [Jones Ill. Stats. Ann. 45.013 et seq.], and within 30 days thereafter brought suit in the Municipal court of Chicago against Wilson & Company and had judgment for $34.47, which was satisfied; that January 30, 1940, Nathaniel being still in default, Chapman served another demand on Wilson & Company and February 7, 1940, brought an action in the Municipal court of Chicago against Wilson & Company and obtained a judgment for $36.71, which was satisfied. The prayer of the petition was that the amount clue Nathaniel, from Wilson & Company be paid to Chapman.

The answer filed by Wilson & Company in the instant case shows that 25 per cent of the wages earned by Nathaniel was $45.50, which was claimed by Chapman and by Marks Clothing Company. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor against Wilson & Company for $45.50. The prayer of the intervening petition was denied, and Chapman appeals.

Chapman filed his brief in this court as did Nathaniel for the use of Marks Clothing Company, Inc., plaintiff. No brief has been filed by Wilson & Company.

Chapman’s theory of the case, as stated by himself, is “the service of a demand on an employer for properly assigned wages, and the filing of a suit against the employer on the assignment within thirty days after demand, is sufficient, under the Wage Assignment Act, to establish the assignee’s claim to and right to receive 25% of the wages earned by the assignor until the assignee’s claim is paid in full. If the employer subsequently fails to pay the assigned wages to the assignee, the assignee need not serve a second demand on the employer for the assigned wages, before suing the employer on the assignment a second time for wages earned since the first suit.”

The question for decision must be determined by a construction of the Assignment of Wages Act passed in 1935. By § 1 it is provided: “No assignment of wages earned or to be earned shall be valid unless” (1) there is a written assignment by the wage earner giving the name of his employer, specifying the amount the wage earner owes to the assignee, (2) the assignment must be given to secure an existing debt, (3) an exact copy of the assignment shall be furnished to the wage earner at the time of its execution, (4) the document must be headed by the words, “Wage Assign-merit’ ’ to be printed in bold face type not less than one-quarter inch in height, and (5) the document must be complete in itself and not a part of any conditional sales contract or other instrument.

Section 2 provides no demand shall be made on the employer for the wages of a wage earner unless, (1) the latter is in default in payment of his indebtedness and (2) the demand must contain a correct statement, the amount the wage earner is in default and the original or photo static copy of the assignment shall be exhibited to the employer. Continuing the section provides: “Service of any such demand without complying with the above requirements shall have no legal effect, and in no case shall a demand have any legal effect after thirty days from the service of the demand, unless suit is instituted against the employer of the wage-earner on the assignment within snch thirty days.”

Section 4 of the act provides: “No more than twenty-five per centum of the wages of a wage-earner shall be subject to collection by the assignee. If there is more than one assignment demand received by the employer, the assignees shall collect in the order of priority of service of the demand upon the employer but the total of all collections shall not exceed twenty-five per centum of the wages of the wag’e-earner covering any period.”

And by § 5, it is provided that “. . . no assignment of wages shall be valid after three years from the date of its execution and shall be void after such period of three years.”

We think Chapman’s contention cannot be sustained. Part of § 2 of the act above quoted provides that where a demand is made on the employer for the wages of a wage earner by virtue of an assignment “in no case shall a demand have any legal effect after thirty days from the service of the demand, unless suit is instituted against the employer of the wage-earner ... within such thirty days.” We think the statute means that where a demand is made under the act, suit brought and judgment obtained and satisfied, the assignee before he can enforce any further claim against the employer must serve another demand on the employer. If this were not so, an assignee who had made a demand, brought suit and obtained judgment which the employer satisfied, the demand made would be good for the balance of three years, which we think is contrary to § 2 of the act.

The judgment of the Municipal court of Chicago is affirmed.

Judgment affirmed.

Matchett and McSurely, JJ., concur.