author: Mr. Presiding Justice O’Connor

text:
    Trustees of Schools of Township No. 38 North, Range 13, East of the Third Principal Meridian, in Cook County, Illinois, et al., Appellants, v. City of Chicago and Board of Education of the City of Chicago, Appellees.
    Gen. No. 41,321.

      Opinion filed February 17, 1941.
    Rehearing denied March 3, 1941.
    Holland M. Cassidy, Walter E. Beebe and George M. Sundheim, all of Chicago, for appellants; Hamilton K. Beebe, of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for certain appellee ; Alexander J. Resa, Alfred Kamin and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
    Richard S. Folsom, of Chicago, for certain other appellee; Frank S. Righeimer and Frank R. Schneberger, both of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

January 26, 1916, the Trustees of Schools of Township 38 North, Bange 13, East of the Third Principal Meridian in Cook county, Illinois, filed its petition designated by it “Summary Proceeding under the Statute” against the city of Chicago involving section 16 on account of that section being annexed to the city of Chicago. More than fourteen years afterward the Board of Education of the City of Chicago was made an additional party defendant. Nearly nine years after this, by leave of court, School Districts 103, 104, and 110, in Cook county, intervened as additional complainants. October 17, 1939, the city’s demurrer to the motion of the board of education to strike the second-amended and supplemental complaint was sustained, the suit dismissed and plaintiffs appealed to the Supreme Court where, upon consideration, the cause was transferred to this court. Trustees of Schools v. City of Chicago, 373 Ill. 508.

The record discloses that in April, 1915, the Village of Clearing in Cook county, which included all of section 16 and some additional territory in Township 38, was annexed to the city of Chicago, as stated by our Supreme Court, “under the provisions of the Annexation act of 1889. (Ill. Rev. Stats. 1939, chap. 24, par. 386, et seq.) In January, 1916, the trustees of schools filed a petition in the circuit court against the city of Chicago seeking to recover, under section 8 of the Annexation act, the just and proportionate value of section 16, less credit for the proportionate share of money of the school township on hand.” The city was served with process, entered its appearance and filed a general demurrer. Nothing further appears to have been done for nearly fourteen years thereafter when on December 20, 1929, the case was reached for trial and no one appearing to prosecute the suit was dismissed. June 5, 1930, an order was entered by agreement of the parties setting aside the order of dismissal and reinstating the cause.

Six months thereafter, December 5, 1930, plaintiff filed an amended and supplemental petition which was substantially the same as the original petition except it alleges that after the annexation of the Village of Clearing in 1915, as above stated, other and further territory located in School Township 38 was annexed to the city of Chicago on four different occasions: the first, July 12,1915, describing certain property with an assessed valuation of $222,174; the second, February 4, 1918, describing certain property with an assessed valuation of $52,079; the third, July 8, 1921, property with an assessed valuation of $82,077; and the fourth on June 30, 1923, property with an assessed valuation of $231,673. The board of education was made an additional defendant and entered its appearance. Nothing further appears to have been done until more than eight years had elapsed when on January 4, 1939, the suit was again reached for trial and again dismissed for want of prosecution. Two days thereafter, the dismissal was vacated and the cause reinstated. March 22, 1939, leave was given to file a second-amended and supplemental petition, to which the city excepted. The petition was then filed. It alleged, among other things, the annexation of the Village of Clearing in 1915 in which section 16 was located and that “immediately upon the alleged annexation of said Village of Clearing to the City of Chicago, said City of Chicago then and there and without the consent or approval of your petitioner and without the consent and approval of the inhabitants of said School Township outside of the limits of said Village of Clearing,” took over possession and control of section 16 for its exclusive benefit, disregarding the rights of the petitioner and its inhabitants. The allegations of the first-amended and supplemental petition (setting up the four subsequent annexations hereinbefore mentioned) were eliminated and it was further alleged that since the annexation in 1915 of section 16, the city had failed and refused to account to or pay petitioner “said rents, issues, incomes and profits and the proceeds of said sales, or any part thereof”; that the City had permitted portions of the land to remain idle and had rented other portions for the use of a municipal airport from which the city had received large profits but had made no accounting to the petitioner; that section 16 had a .value of $1,000,000; that the common schools of School Township 38 were poor, and inadequately furnished and as a result the children of the township do not receive suitable education; that the city is indebted in excess of 5 per cent of the value of its taxable property; that because of the failure of the city “to pay your petitioner the value of said Section 16, or otherwise make suitable and proper provisions for the administration of said property for the benefit of the inhabitants of said School Township not allegedly annexed to or a part of the City of Chicago, the said City of Chicago has acquired no right, title, or interest in or control over said Section 16 and the control and administration of the same should be returned to your petitioner to be administered in accordance with the Act of Congress and the statutes of the State of Illinois . . . and said City of Chicago should be required to account for the use of said property and any moneys or things of value received by reason of the sale of any right, title, or interest thereto ”; that the board of education of Chicago claimed to have some interest and it was made an additional party defendant.

The prayer was that the court summarily hear the matter and ‘ pronounce judgment as the right and equity of the matter may demand, and particularly” that the city and board of education be required “to pay to your petitioner the value of said Section 16 and account to your petitioner for the use of said Section 16 since April 26,1915, and the proceeds of the sale of any right, title or interest thereto”; that for failure or default of the city or board of education to pay to the petitioner “the value of said Section 16” the city be required to “surrender to your petitioner the management and control of said Section 16 and account to your petitioner for the use of the same since April 26, 1915, and the proceeds of the sale of any right, title or interest thereto.”

By the order of March 22,1939, permitting the filing of the second-amended and supplemental petition, it was ordered that the demurrer of the city theretofore filed stand to the second-amended and supplemental petition. The hearing of the demurrer was set for April 26, 1939.

April 20, the board of education filed its motion to strike the second-amended and supplemental petition and to dismiss the suit specifying fourteen reasons, among which were that since the supplemental petition sought to recover the lands it was barred by the twenty-year statute of limitations — the supplemental petition not having been filed until after twenty years from the annexation of section 16 in 1915; that the cause of action claimed in the petition for an accounting was barred by the five-year statute of limitations and that petitioner was guilty of laches. Other specific grounds are set up which we think it unnecessary to specify here.

Thereafter, May 11, 1939, School Districts 103, 104, and 110, in Cook county, filed their motion for leave to intervene as additional parties plaintiff. Nothing further appears to have been done until October 17, 1939, when an order was entered “nunc pro tunc as of 13th day of October, 1939,” permitting the three school districts to intervene as additional petitioners and to adopt the allegations of the last mentioned supplemental petition.

October 16, 1939, the appearance of the three school districts was entered by counsel and on that day filed their intervening petition. They joined in the prayer for relief sought by the supplemental petition. The next day the court entered an order sustaining the demurrer of the city and the motion of the board of education, and dismissed the suit from which the petitioners prosecute this appeal.

In transferring the case to this court the Supreme Court in its opinion said (373 Ill. 508): “By section 4 of the Annexation act, title to annexed school lands is held in the name of the annexing city for the same purposes and to the same uses and objects as theretofore, i.e., in trust for the use of schools. All real estate held by a city for the use and benefit of schools is held in the name of the city in trust for the use of schools. (Ill. Rev. Stats. 1939, chap. 122, par. 155.) . . .

“It is apparent that no freehold is involved. The controversy relates solely to the rights of appellants and appellees. The question is whether appellees shall pay appellants the value of section 16 or surrender its custody to the school trustees. This matter does not concern the State or the public. The State will neither gain nor lose by the result of the suit and is not an interested party. (People v. Town of Oran, 121 Ill. 650.)”

Defendants contend that the second-amended and supplemental petition filed March 22,1939, was demur-rable and the ruling of the court in so holding was proper. In support of this it is said the original petition filed in 1916 sought to recover from the city the just and proportionate share of the value of section 16, etc., and that this was also the allegation of the first-amended and supplemental petition filed in 1930, but that the supplemental petition now before the court is in effect a bill in chancery to compel the city to pay petitioners the full value of section 16 and all of the proceeds derived from the sales or rents thereof, or if defendants fail or refuse to do so they be compelled to transfer the entire section back to petitioners, and that the allegations are insufficient.

Counsel for petitioners in their brief say they have never taken the position that petitioners were entitled to the value of section 16 and all of the income or proceeds derived therefrom. But we think this is not borne out by the allegations of the supplemental petition filed in 1939, as appears from what we have heretofore said in stating the allegations of the bill. This view is also sustained by the Supreme Court in its opinion when it said “The question is whether appellees shall pay appellants the value of section 16 or surrender its custody to the school trustees.” The petition was certainly demurrable when it asked that in case defendants did not pay the amount found due that section 16 be returned to petitioners. The law does not require this. But we do not place our decision on that ground. The proceedings here are brought under the provisions of sections 4, 8, and 13 of the Annexation Act of 1889. (Ill. Rev. Stat. 1939, ch. 24, pars. 389, 393, 398 [Jones Ill. Stats. Ann. 21.407, 21.411, 21.416].) Section 4 provides that where property is annexed to the city, such as is involved in the instant case, the city ‘ ‘ shall become vested with title and ownership of all property belonging to said city, village or incorporated town so annexed, to be held for the same purposes and for the same uses, subject to the same conditions as theretofore, and if the public schools of such enlarged city, . . : are all in charge and under the control of one board of education, the said enlarged city, . . . shall assume and pay the indebtedness of each school district or township lying wholly therein, and shall become vested with the title and ownership of all property belonging to any school district or township lying wholly therein, . . . And if there be a portion of a school district or township lying within and a portion lying without such annexed territory, the debts of such school district or township shall be paid and the property divided in the same manner as is provided for paying debts and dividing property in section eight (8) of this act, where parts of cities, villages or incorporated towns are annexed to other cities, villages or incorporated towns.”

Section 8 provides that where property is taken from one municipality and annexed to another “the proportionate share of any indebtedness, contract or liability of such city, village or incorporated town from which such territory is taken shall be assumed and paid by such enlarged city, . . . and if the public schools of such enlarged city, . . . shall be in charge and control of one board of education, then the proportionate share of any indebtedness of any school district or township shall be assumed and paid by such enlarged city,” and that the amount to be paid by the enlarged city shall be determined and agreed by the proper city and village officials; that if the officials are not able to agree then the matter shall be determined by the Circuit court of the county and “The court shall hear and determine the matter in a summary manner, without pleadings, and shall pronounce judgment as the' right and equity of the matter may demand.”

And by section 13 it is provided that in case of such annexation and the municipal authorities are unable to “agree as to the division of the property or the settlement of their respective rights and all matters arising out of said annexation within sixty days thereafter,” then the circuit court may hear and determine and give judgment or decree as the rights of the parties may appear.

Under the provisions of the three sections we think the above was sufficient to warrant the court in hearing and determining the rights of the parties.

But counsel for defendants say that on account of the great delay in prosecuting the proceeding petitioners’ rights are barred by the five and twenty-year statute of limitations and by laches. We think this contention must be sustained. Brown v. Trustees of Schools, 224 Ill. 184; School Directors v. School Directors, 105 Ill. 653; People ex rel. Town of Atlanta v. Town of Oran, 121 Ill. 650; 21 C. J. 210-219.

The Village of Clearing which included all of section 16 was annexed to the city of Chicago in 1915. The original petition was brought in apt time, January 26, 1916, but nothing was done under this petition (except it was dismissed for want of prosecution and the matter reinstated) until more than fourteen years thereafter when an amended and supplemental petition was filed which was substantially the same as the original petition except it set up four separate and distinct other annexation proceedings by which property on each occasion was taken from Township 38 and annexed to the city of Chicago. After this second petition was filed substantially nothing was done (and the suit was again dismissed for want of prosecution) until nearly nine years had elapsed when the petition before us was filed in March, 1939. Although the three school districts, numbers 103, 104, and 110 filed their written motion May 11, 1939 for leave to intervene, no action was taken on that until the following October 17 when an order was entered permitting them to do so. The petition of 1939 alleges on information and belief that the city has permitted portions of the land annexed in 1915 to remain idle and made no effort to rent or otherwise obtain any income, and other portions of the annexed property were rented by the city for the use of a municipal airport from which large profits have been received.

Counsel for defendants in their brief point out that in 1934 the Board of Education of the City of Chicago, pursuant to an act of the legislature of February 28, 1934, executed a mortgage on its school lands including the property annexed to secure the payment of a loan from the Reconstruction Finance Corporation of $22,500,000; that its action was approved by the Supreme Court in Board of Education v. Upham, 357 Ill. 263, and that the courts will take judicial notice of this fact.

In Brown v. Trustees of Schools, 224 Ill. 184, an action of ejectment was brought by the school trustees to recover the possession of part of a schoolhouse lot. The twenty-year statute of limitations was interposed as a defense. The Supreme Court held the defense was good holding that no public rights were involved but only private or local rights- — -that the rights of the State were not involved. So, in the instant case, the Supreme Court in transferring the case said: “The State will neither gain nor lose by the result of the suit and is not an interested party. (People v. Town of Oran, 121 Ill. 650.) ”

“Negligence in the prosecution of a suit after its commencement may bar relief. The mere institution of a suit does not of itself relieve a person from the operation of the rule of laches; if he fails to prosecute his suit diligently the consequences are the same as though no suit had been begun.” (21 C. J. 215-216; Thomas v. Van Meter, 164 Ill. 304.) “the question of laches is addressed to the sound discretion of the chancellor, and his decision will not be disturbed on appeal unless it is so clearly wrong as to amount to an abuse of discretion.” (21 C. J. 217-219; Woodall v. Peden, 274 Ill. 301.) There is no contention that any of the property involved or the proceeds thereof have not all been used for school purposes.

In the instant case the annexation of section 16 to the city of Chicago was in 1915, and twenty-four years thereafter the second-amended and supplemental petition was filed. We ought to say, however, that the delay was not occasioned by present counsel for petitioners who did not come into the case until 1939. We think what the Supreme Court of the United States said in Stoll v. Gottlieb, 305 U. S. 165, is apt here. ‘ ‘It is just as important that there should be a place to end as that there should be a place to begin litigation.”

The order and decree of the circuit court of Cook county dismissing the proceeding is affirmed.

Affirmed.

Matchett and McSurely, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Eleanor B. Stevenson, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 41,359.

      Opinion filed February 17, 1941.
    Hoyne, O’Connor & Rubinkam, of Chicago, and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, Mo., for appellant.
    Wilson & McIlvaine, of Chicago, for appellee; J. F. Dammann, Sheldon Lee and George Fiedler, all of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff, the beneficiary of a life insurance policy for $10,000 issued by defendant to her former husband, Joseph Husband, brought suit to recover the face of the policy less what had been borrowed against it. There was a trial before the court without a jury, a finding and judgment in plaintiff’s favor for $7,438.30, the amount of her claim, and defendant appeals.

The record discloses that March 16, 1917, defendant issued its policy of insurance to Joseph Husband for $10,000; Ms wife, the plaintiff, who has subsequently remarried was the beneficiary. The insured died September 21, 1938, and for some time prior to his death the premium of $53 was payable quarterly in advance. The quarterly premium which fell due March 16, 1938 was not paid on that date but some time prior to the expiration of the grace period of 31 days. There was a loan on the policy of $3,001.87 and the cash surrender value was $3,015, so that on June 16, 1938, when the quarterly premium was due the net cash surrender value was $13.13.

It is admitted that this equity was sufficient to purchase extended insurance for 43 days from that date, that is, to July 29, 1938, and defendant’s position is that the policy lapsed at that time. No part of the June premium was paid. There is no dispute as to the facts, most of which were stipulated. •

The pertinent provisions of the policy are as follows:

“Non Forfeiture Provisions.
“Policy Non-Forfeitable After First Year’s Premium Has Been Paid.
“Non-forfeiture Values at End of First and Second Policy Years. — If this Policy after being in force one full year or two-full years shall lapse for non-payment of premium, the Company will continue in force the insurance under the Policy for a period of sixty days or of one hundred and twenty days, respectively, from the due date of such premium, as specified on the first page hereof, as indicated in the following table: . . .
“Paid-up Life Policy. — If tMs Policy, after being in force three full years, shall lapse or become forfeited for the non-payment of any premium on the date when due, as specified on the first page hereof, . . . the Company will issue a non-participating Paid-up Life Policy as specified in the following table: . . .
“Automatic Extended Insurance. — If this Policy, having lapsed or become forfeited as specified in the clause, ‘Paid-up Life Policy,’ above, be not surrendered for its Cash Value or for a Paid-up Life Policy, the Company will put in force in lieu of this Policy, without any action on the part of the Insured, a nonparticipating Paid-up Term Policy for the full amount insured by this Policy, such Paid-up Term Policy to be dated on the day to which premiums have been duly paid, and to continue in force for the term indicated by the following table; provided, however, . . . that if there be any indebtedness to the Company on account of this Policy the amount of such Paid-up Term Policy shall be the face amount of this Policy less the amount of such indebtedness, and the term for which such Paid-up Term Policy shall run shall be changed to that term for which the Cash Surrender Value of this Policy herein specified, after deducting such indebtedness, will carry the modified amount at Single Premium Term Bates. The Paid-up Term Policy will be delivered on the legal surrender of this Policy.”

The applicable part of the table referred to in the above provisions of the policy is:

“Table of Loan and Non-Forfeiture Values.
“(3)
“At the End of Automatic Extended Insurance
For Face Amount of Policy (See first paragraph of ‘Non-forfeiture Provisions,’ above.)

[Table continues up to 20 years]

It is stipulated that “On or about August 30, 1938, the defendant, The Prudential Insurance Company of America, mailed from its Home Office at Newark, New Jersey, to the plaintiff, and the plaintiff received at Room 596-208 South La Salle Street, Chicago, Illinois, a certain notice in writing” (which is in evidence) that “On or about August 31, 1938, a clerk in the Home Office of the defendant, . . . made a certain affidavit with reference to the mailing of” the notice. The pertinent part of the notice is as follows :

“Home Office, The Prudential Insurance Company op America
Newark, N. J. Edward D. Duffield, President.
“Hereby gives notice that the premium on this policy will be due as stated below, and unless said premium is paid when due such policy will be forfeited as specified on the reverse side hereof.
“Please Remit the Premium
With This Notice To W. S. Fuller, Mgr.
“Policy Number Date Due
2346360 Sep 16 % Annual Premium $53 1938
“. . . Read Notice on Other Side, regarding the Forfeiture of policy if premiums are not paid by or before due date. (Over)
“Notice. — Effect of Failure to Pay Premiums
“The Premium Due on This Policy as specified on the reverse side hereof may be paid to the representative named hereon in exchange for the Company’s receipt properly countersigned, or paid to the Company at its Home Office, in Newarh, N. J. Unless the premium then due shall be paid to the Company or to a duly appointed agent or person authorised to collect said 'premium by or before the day it falls due (or within a grace period of 31 days thereafter), said policy and all payments thereon will become forfeited and void, except as to the right to a surrender value, extended insurance or paid-up policy, as may be provided in said policy or by statute.
“Notice to'Policyholders as to Powers op Agents.
—No Agent has power on behalf of the Company to make or modify any contract of insurance or waive any provision thereof, to extend the time for paying a premium, to waive any forfeiture, or to bind the Company by making any promise, or making or receiving any representation or information.
William W. Van Nalts, Secretary.”

The pertinent portion of the affidavit of the mailing of this notice is:

“J. E. Dyson, being duly sworn, doth depose and ' say that he is a clerk in the office of The Prudential Insurance Company op America, at Newark, New Jersey, that being the home or principal office of said Company. Deponent further says that on the 30 day of Aug. 1938 he mailed ... to each of the persons severally named in the schedule on this page the . . . notice required by the law of the State of Illinois, which notice stated the amount of premium, instalment, interest or portion thereof to become due on his or her policy, the place where it shall be paid and the person to whom the same is payable, and the time when said premium . . . shall fall due ; . . . Each notice also stated that unless such premium or other sums due shall be paid to the Company or its Agents, the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value, extended insurance or paid-up policy as provided for by the policy.”

This was subscribed and sworn to by J. E. Dyson before a notary public of New Jersey and in the schedule, referred to in the affidavit, is:

“Schedule
“Each Premium Referred to in This Schedule Falls Due and Is Payable 9-16-38

Counsel for plaintiff contend, (1) that “by the terms of the policy, upon the non-payment of the premium due June 16, 1938, the first non-forfeiture provision kept the policy in full force and effect for a-period of one hundred and twenty days from that date until October 14,1938, which was after the occurrence of the death of the assured, Joseph Husband.” We think this contention cannot be sustained.

From the provisions of the policy above quoted we think it clear that if the policy is in force for one full year the company will continue in force the face of the policy less any indebtedness for a period of sixty days; and if it is in effect two full years, for 120 days. If it is in effect three full years and there is no indebtedness to the company on account of the policy, the automatic extended insurance will be for three years and sixteen days; but “if there be any indebtedness to the Company on account of this Policy . . . the term for which such Paid-up Term Policy shall run shall be charged to that term for which the Cash Surrender Value of this Policy herein "specified, after deducting such indebtedness, will carry the modified amount at Single Premium Term Rates.” In the instant case it is agreed that after deducting the indebtedness to the company there was an equity of $13.13 which would automatically extend the policy for 43 days or until July 29, 1938. We think the 120 days does not apply except where the policy has been in effect two full years.

The second proposition advanced by counsel for plaintiff is “that the act of The Prudential Insurance Company in formally notifying the beneficiary of the policy, on August 30,1938, that the quarterly premium was due on September 16th and that ‘unless the premium then due shall be paid ... by or before’ 31 days thereafter, (October 17,1938) ‘said policy and all payments thereon will become forfeited and void, ’ operated to keep the insurance alive until October 17, 1938 and that, therefore, the policy was in full force and effect at the time of the death of the assured on September 21, 1938.” We think this contention must be sustained. Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369; Adam v. Columbian Nat. Life Ins. Co., 218 Ill. App. 54; Waerness v. Independent Order of Foresters, 244 Ill. App. 211; Union Trust Co. v. Chicago Nat. Life Ins. Co., 267 Ill. App. 470; Fisher for use of Kiniry v. Associated Underwriters, Inc., 294 Ill. App. 315.

The notice was sent by defendant to plaintiff August 30, 1938. It was not sent by a mere clerk without authority, as counsel for defendant contend, but was sent by the defendant company, as stipulated on the trial. Such notice was required by the statute of this State. Ill. Rev. Stat. 1939, ch. 73, par. 846 [Jones Ill. Stats. Ann. 66.909]. That paragraph provides: “No life company doing business in this State shall declare any policy forfeited or lapsed within six months after default in payment of any premium . . . nor shall any such policy be forfeited or lapsed by reason of non-payment when due of any premium, ... required by the terms of the policy to be paid, within six months from the default . . . unless a written or printed notice stating the amount of such premium, . . . due on such policy, the place where it shall be paid and the person to whom the same is payable, shall have been duly addressed and mailed with the required postage affixed, to the person whose life is insured, ... at his last known post office address, at least fifteen days and not more than forty-five days prior to the day when the same is due and payable, before the beginning of the period of grace. Such notice shall also state that unless such premium or other sums due shall be paid to the company or its agents the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value or paid-up policy as provided for by the policy. The affidavit of any officer, clerk or agent of the company or of any one authorized to mail such notice . . . shall be presumptive evidence that such notice has been duly given.”

The notice is from the defendant insurance company addressed to plaintiff. By it she is told the quarterly premium of $53 is due September 16, 1938, and that unless it is paid at that time or within thirty-one days thereafter, the policy and all payments will be forfeited and the policy void except as to its surrender value as may be provided in the policy or the statute. The name of the president of the company is on the notice and it purports to come from Mr. William W. Van Malts, secretary of the company. In the affidavit of the person mailing it, it is stated that the notice sent plaintiff is required by the laws of the State of Illinois ; that it gives the amount of the premium and the due date, and that unless the premium is paid when due the policy will be forfeited and void except as to the surrender value of the policy or extended insurance.

Plaintiff had no way of knowing that the policy would be forfeited before September 16, as the notice stated, nor could she know that the company would contend the policy was forfeited and void for nonpayment of the June premium, and that the value of it carried extended insurance to July 29, 1938. The policy would give no person such information, in fact, we think it appears that the company did not know when the policy expired as it now contends, until the trial of the case.

The Baxter case (318 Ill 369), was a suit on a life insurance policy where the right of the insurance company to insist on the lapse of the policy for failure to pay the premium within the time required had been waived by its conduct. The court there said: “Waiver by an insurer results when it by an act, statement or course of conduct toward the assured recognizes the policy as existing though the time for payment of the premium has expired. Forfeiture of life insurance policies is not favored, and unless the circumstances show a clear intention to claim a forfeiture for nonpayment of the premium such forfeiture will not be enforced. If the conduct of the insurer is such as to induce the assured to believe that a forfeiture will not be insisted upon, the insurer will be held to be estopped from taking advantage of such forfeiture,” citing a number of Illinois cases.

Moreover, we are further of opinion that under the provisions of the statute above quoted, the policy could not be declared forfeited by the company unless and until the notice required by the statute was given, and the insured having died before the time specified in the notice had expired, the policy was in full force and effect.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Matchett and McSurely, JJ., concur.


text:
    People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts, v. Union Bank of Chicago et al. Anton J. Johnson, Appellant, v. Harry R. Spellbrink, Receiver of Union Bank of Chicago, Appellee.
    Gen. No. 41,459.
    Opinion filed February 17, 1941.
    John M. Treveiler and J. Lawrence Holleran, both of Chicago, for appellant; George J. Ditchie, of Chicago, of counsel.
    Schuyler & Hennessy, of Chicago, for appellee; Theodore E. Zahler and Daniel M. Schuyler, both of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

In 1932 the Union Bank of Chicago, a corporation, was being liquidated by the Auditor of Public Accounts and a receiver was appointed. About the same time the Chicago Bank of Commerce was also being-liquidated in a similar proceeding- and a receiver named. February 6, 1940, Anton J. Johnson, by leave of court, filed his verified intervening petition in which he prayed that his claim against the Union bank be allowed and that a summons issue against the receiver of the Bank of Commerce to appear and answer the petition. Whether the summons issued and whether the receiver of the Bank of Commerce came into court does not appear. The receiver of the Union Bank of Chicago filed his motion to dismiss the petition specifying a number of grounds. The motion was allowed, the petition dismissed and this appeal followed.

The substance of the allegations of the intervening-petition, so far as it is necessary to state is that petitioner, Anton J. Johnson, from 1906 had been a customer of the Union Bank of Chicago and about the month of February, 1927, he purchased from the bank 230 bonds having an aggregate face value of $150,000, for which he paid the face value in cash to the bank; that the bonds were made by A. J. Johnson & Sons Furniture Company, a corporation, secured by a trust deed dated January 1'8, 1927 and recorded February 9, 1927 in the Recorder’s office of Cook county; that the Union bank, in order to induce Anton J. Johnson to purchase the bonds, represented that they were secured by a first mortgage on the buildings, building-equipment described in a trust deed, and all manufacturing machinery of the furniture company but it is alleged that the payment of the bonds, in fact, was secured only by the real estate described in the trust deed and not by the machinery of the furniture company; that the machinery was worth $200,000 and the real estate described in the trust deed was known to the petitioner Johnson to be insufficient security for the payment of the bonds and he relied upon the representations made by the Union bank that the payment of the bonds was also secured by the machinery of the furniture company; that to induce petitioner to purchase the bonds from the Union bank, the bank said it would loan Johnson money and take the $150,000 bonds as collateral security. That shortly after the purchase of the bonds in February, 1927, the bank loaned Johnson $50,000 for which he gave his collateral note pledging the bonds; that the note has been renewed from time to time and is now held by the Chicago Bank of Commerce under an agreement entered into between it and the Union Bank of Chicago; that the bonds of the face value of $70,000 were paid by the furniture company; that afterward it went into bankruptcy and the machinery of the furniture company was sold but that it was not subject to the lien of the trust deed; that there is still $80,000 of the bonds due and unpaid and petitioner’s note for $50,000 is due and unpaid; that the machinery of the furniture company was sold in September, 1936, in the bankruptcy proceeding of that company and upon receiving notice of the sale petitioner took it to the receiver of the Union bank (and deputy receiver of the bank of Commerce) who informed petitioner that the machinery had never been pledged as security for the payment of the $150,000 bonds; that the receiver said he would buy the machinery at the sale; that he made bids at that time but did not purchase the machinery, and thereupon the receiver requested petitioner not to take any legal action against either of the banks on his claim for fraud but promised that “the receivership estates would work the matter out somehow to the satisfaction of this petitioner”; that the receiver further stated that if petitioner were to file a claim against either of the two banks he would immediately reduce petitioner’s collateral note to judgment and forfeit all of the collateral deposited as security for the note “and harass this petitioner with the balance of said judgment”; that the petitioner believed what the receiver said and relied upon it “and was not advised as to his legal rights in this connection and in connection with said fraud until, to wit, the 20th day of November, 1939, when he first consulted a lawyer for this purpose; that the petitioner did not have any prior knowledge of the fact that the manufacturing machinery of the A. J. Johnson & Sons Furniture Company, a corporation, was not at any time security for the said bond issue.”

It is further alleged in the petition that on account of the fraud of the Union bank in selling the bonds as above stated, petitioner rescinded the sale of the bonds and the prayer was that his claim be allowed against the Union bank for $80,000, the amount of the furniture company’s bond issue remaining unpaid; that his claim be set off against his collateral note held by the receiver of the Bank of Commerce, as above stated, and the balance due of the $80,000 after deducting the $50,000 collateral note be held to be secured by the trust deed given by the furniture company, and the two receivers be required to account for all collateral deposited by the petitioner as security for the payment of his $50,000 collateral note.

A copy of one of the furniture company’s bonds and the trust deed were attached to and made a part of the petition. While the point is not made, we think it is not clear that the machinery was not covered by the trust deed.

One of the defenses interposed was the five-year statute of limitations; that the bonds were purchased in February, 1927, and the petition in the instant case not filed until February 6, 1940. But counsel for petitioner say that while the statute of limitations does not strictly apply to cases in equity that equity generally follows the law and denominates the period the statutes required to bar an action of laches that renders a demand - stale. Laches will not apply in equity until the discovery of the fraud or until the fraud could have been discovered by the exercise of reasonable diligence.

We think the statute of limitations was a good defense. Skrodzki v. Sherman State Bank, 261 Ill. App. 16, affirmed 348 Ill. 403; Jackson v. Anderson, 355 Ill. 550; Keithley v. Mutual Life Ins. Co., 271 Ill. 584.

In the Sherman State Bank case, an action was brought against it based on its fraud and deceit in selling plaintiff bonds fraudulently representing that the payment of the bonds was secured by a first mortgage on real estate when, as a matter of fact, the mortgage securing the bonds was a second lien on the property. There was a verdict and judgment in plaintiff’s favor for the amount of its claim but on appeal the judgment was reversed by this court and remanded. (261 Ill. App. 16.) Afterward the remanding order was stricken out and the case went to the Supreme Court where the judgment of this court was affirmed. In that case the bank filed a plea of the five-year statute of limitations to which plaintiff filed a replication averring that defendant fraudulently concealed the facts which constituted the fraud until less than five years before the suit was brought. Defendant’s demurrer to the replication was overruled and it filed a rejoinder denying fraudulent concealment. There was a verdict and judgment in plaintiff’s favor. We held the five-year statute of limitations was a bar and the court should have directed a verdict. We there referred to and discussed the Keithley case, 271 Ill. 584, and quoted from the opinion in that case, “mere silence of the defendant is not sufficient” to amount to concealment, and further, “The doctrine announced in these decisions is, that the fraudulent concealment of a cause of action which will prevent the running of the Statute of Limitations must be some affirmative act or representation intended to prevent the discovery of the cause of action, which does actually prevent such discovery; that a replication setting up such fraudulent concealment must set out the facts constituting the concealment; that the fraudulent misrepresentations which form the basis of the cause of action do not constitute a fraudulent concealment in the absence of allegations of acts or representations tending fraudulently to conceal the cause of action.” In affirming the judgment of this court the Supreme Court, in passing on the question when concealment of the claimed fraud would toll the statute said: (348 Ill. 403) “In Lancaster v. Springer, 239 Ill. 472, this section [22 of the Limitations act] was construed as follows: ‘The concealment of a cause of action which will prevent the operation of the Statute of Limitations must be something of an affirmative character designed to prevent, and which does prevent, the discovery of the cause of action. . . . Such concealment must consist of affirmative acts or representations.’ ” The court then cites cases, including the Keithleg case which it discusses.

The Supreme Court, however, did not base its decision on the point just discussed but went further and held it was the duty of plaintiff to have examined the records in the recorder’s office where the mortgage was recorded and to have ascertained that the mortgage securing his bonds was a second lien. The court there also said: “The records of the recorder’s office are public records and open alike to all parties. Appellant therefore had constructive notice of what those records contained. "Whether such notice prevents the concealment of a cause of action has not been considered by this court but has by courts of other jurisdictions. In Norris v. Haggin, supra, [136 U. S. 386] where it was alleged that the original transaction which formed the basis of the cause of action was a fraud, the court, in considering the effect of the statutory provision of the State of California concerning •concealment of a cause of action, makes this observation: ‘It is a part of this general doctrine that to avoid the lapse of time or Statute of Limitations the fraud must have been one which was concealed from the plaintiff by the defendant or which was of such a character as necessarily implied concealment. Neither of these principles can apply to the defendants in this case. The acts which constitute the fraud as alleged in the bill were open and public acts. The note and mortgage were recorded in the proper public office of the proper county. The possession of defendants was obtained by judicial proceedings which were open to everybody’s examination and which were probably well known in the entire community. ’ ” The court also quotes from Teall v. Schroder, 158 U. S. 172, to the same effect and continuing said: “And in this case, [Sherman State Bank case] though it is argued with force that the payment of interest constituted specific acts of fraudulent concealment of the existence of action, yet, the public records being open to appellant, he must be held charged with the knowledge of what they contained, and it could not be said, therefore, that acts on the part of the appellee, though attempts to conceal the cause of action, could accomplish that purpose.”

In the instant case petitioner Johnson was apparently a man of business affairs. In February, 1927, he purchased $150,000 worth of bonds from the Union bank paying for them in cash. About that time he borrowed $50,000 and put up his collateral notes secured by these bonds. The Union bank was placed in liquidation by the Auditor of Public Accounts June 24, 1932. Afterward the furniture company went into bankruptcy and in September, 1936, petitioner was notified that the trustee in bankruptcy would offer the machinery of the furniture company for sale. At that time the records were checked and petitioner was informed that the machinery was not pledged as security for the payment of his bonds. Petitioner says when he learned of this fact he was told by the receiver of the bank that if he pressed his claim judgment would be taken against him on his collateral note and for that reason he refrained from doing anything until he was told by his attorney November 20, 1939 what his legal rights were. Just what they were is not alleged. We think the allegations of the petition show that Johnson was guilty of laches and that his claim was barred by the- statute of limitations.

But in any view of the case, if we assume that petitioner states a good cause of action he could recover if he had instituted proceedings within five years from the date he purchased the bonds, in February, 1927. But not having done so, his claim is barred, Ill. Rev. Stat. 1939, ch. 83, par. 16 [Jones Ill. Stats. Ann. 107.275], unless the cause of action was fraudulently concealed within the meaning of Ill. Rev. Stat. 1939, ch. 83, par. 23 [Jones Ill. Stats. Ann. 107.282]. Under the rule announced in the Sherman Bank case, above discussed, petitioner’s cause of action was not concealed within the meaning of par. 23 of the statute, one of the reasons being that he was required to take notice of the fact that the trust deed had been recorded.

But counsel for petitioner say petitioner was under no duty to examine the public records to ascertain the nature and extent of the security of the bonds, “where he relied in this respect on the statements made to him by the seller at the time of sale, inasmuch as a trust and fiduciary relationship exists between such parties,” and Sampson v. Glanz, 302 Ill. App. 624, is cited. That case is not in point. There plaintiff purchased a bond in November, 1928 from defendant who represented to plaintiff that the bond was secured by a mortgage on two pieces of real estate when, as a matter of fact, one of the pieces had been released of record. But in that case suit was filed within five years from the date of the purchase so that the action was not barred. The court there said: “The cause of action came into being when the plaintiff purchased the bond, that is, on February 3, 1930, and the suit was filed on January 15, 1935, well within the five-year period. Ill. Rev. Stat. 1939, ch. 83, par. 16.”

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Matchett and McSurely, JJ., concur.


author: Mr. Presiding Justice. O’Connor

text:
    People of the State of Illinois ex rel. Belle Gertz, Appel-lee, v. Edward J. Kelly, Mayor of City of Chicago, et al., Appellants.
    Gen. No. 41,479.
    Opinion filed February 17, 1941.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    Max Chill, of Chicago, for appellee.
   Mr. Presiding Justice. O’Connor

delivered the opinion of the court.

A petition praying that a writ of mandamus issue to compel the city of Chicago to pay a judgment for $1,500 and costs of $23.70 entered by the circuit court of Chicago May 18,1939, was filed May 8,1940. After the issue was made up a trial was had, judgment awarding the writ was entered, and defendants appeal.

It was alleged that the city council “has appropriated and levied sufficient moneys to pay the judgment” ; that the city had collected ample moneys to pay the judgment; that it had collected since the rendition of the judgment from “miscellaneous revenue” and the proceeds of the sale of tax anticipation warrants sufficient moneys; that it was well able and had ample moneys on hand “in its various funds” to pay the judgment but disregarded its duty and refused to do so.

The city and certain of its officials were made parties defendant and May 23,1940, a joint and several answer was filed in which it is admitted that the city council and appropriated sufficient moneys to pay the judgment" but denied it had levied any moneys for the payment of the judgment, and averred that the appropriation for the payment of judgments in the annual appropriation bill for 1940 “was against uncollected current assets” and that the city had not collected sufficient of such assets to pay all of its liabilities which were appropriated against such assets.

The answer further denied that the city had collected ample moneys to pay the judgment and averred that it had not collected sufficient moneys “from miscellaneous revenues and the proceeds of the sale of tax anticipation warrants” to pay the judgment; denied it was in financial condition to make such payment. And it was averred that May 8, 1940, the date of the filing of the petition, there was on hand in the “corporation purposes fund of the City of Chicago the sum of $1,119,863.67. On May 16, 1940 there was on hand in said fund $1,853,170.12. That all of said moneys was and is necessary for the current essential and ordinary running expenses of the City of Chicago.” The answer then set up that there was in effect an ordinance of the city (§§ 7-29 of the Municipal Code of Chicago) which provides: “All judgments shall be paid in the order of the date of entry upon the records of.the court; provided, that if after the comptroller has sent notice by registered mail to the judgment creditor or his attorney of record that such claim is ready for payment and such judgment creditor fails to present such judgment, with satisfaction piece, for payment within fifteen days, then judgments next in the order of entry shall be paid.”

It was further alleged in the answer that there were unpaid judgments against the city amounting to $4,-207,938.08 which had been entered prior to plaintiff’s judgment (May 18, 1939) and pursuant to the provisions of the ordinance above quoted, these judgments must be paid before plaintiff’s and the city did not have sufficient moneys with which to pay the prior judgments.

The petitioner filed a reply to the answer and denied that “all of the money in the corporate purposes fund” of the city was necessary for the minimum essential governmental functions of the city but on the contrary, avers the moneys in the corporate purposes fund are ample. The replication alleged the city council had no power to pass the ordinance; that it was unconstitutional being in violation of Article 2, § 2 of the Constitution of Illinois, and further averred that no other parties were before the court making any claim to the $1,853,170.12.

May 29, 1940, the case was heard, some of the facts being stipulated, and the Chief Clerk of the city Comptroller’s office was called as a witness by both parties. The court found in favor of petitioner and entered a judgment awarding the writ.

The position of the relator is that there are sufficient moneys in the corporate purposes fund with which to pay the judgment, while the position of the city is that it has done everything within its power to provide money with which to pay the judgment; that the city council made an appropriation for the payment of petitioner’s judgment “out of uncollected assets” prior to January, 1940, and that sufficient of such assets had not been collected; and further that judgments entered before petitioner’s must be first paid and there was not sufficient money.

A portion of the annual appropriation ordinance for the “corporate purposes fund” is in the record. It shows estimated total assets appropriable for such fund of $17,850,323.42. As against these assets $3,600,-000 was appropriated to pay judgments which were entered against the city after January 1, 1935.

Mr. Doyle, Chief Clerk of the Comptroller’s office testified the city had disbursed the $1,119,863.67, and other funds which subsequently'came into the corporate purposes fund May 8, 1940 (the date of the filing of the petition), in payment of vouchers representing the city’s obligations which were outstanding prior to January 1, 1940, and that none of such moneys was applied to the payment of judgments which had been entered prior to January 1, 1940. He testified the Comptroller’s office uses the moneys available to pay the oldest bills owed by the city so as to maintain the city’s credit and there was then unpaid $11,000,000 of such bills due from the city other than judgments against it; that unpaid judgments entered against the city prior to petitioner’s judgment, which was entered May 18, 1939, amounted to $4,207,938.08.

We think the evidence was insufficient to show that the moneys available were required to enable the city to proceed with the function of essential government. City of Chicago v. People, 215 Ill. 235. The burden was on the city to make such proof (People v. Rice, 356 Ill. 373), and not having done so we hold the city’s contention that there was not sufficient money available on May 8, 1940 to pay petitioner’s judgment cannot be sustained.

In People ex rel. Krajci v. Kelly, 279 Ill. App. 22, held that an ordinance of the city of Chicago substantially the same as the ordinance above quoted, was sufficient to defeat a petition for a writ of mandamus brought to compel the payment of a judgment against the city. In considering the ordinance in that case we said: “As the instant judgment is for $10,000 the comptroller is given no discretion as to when it must be paid but it must be paid in the order of the date of entry upon the records of the court.

“We do not construe this ordinance to mean, as relator says, that a judgment shall not be paid and that the ordinance nullifies the judgment. It merely means that the judgment shall be paid in the order of its entry. This is reasonable and in line with the statute as amended May 4, 1934, which provides that ‘Judgments against such city shall be paid out of said fund in the order in which same were obtained. ’ Special Session Laws 1933-1934, p. 122.” And in the supplemental opinion we said: “The ordinance in question does not affect the judgment in any way. It only controls the order in which it shall be paid. It simply governs the administration of the business in the office of the city comptroller. . . .

“Without such an ordinance the payments of such judgments might go by favor or chance, with resulting injustice and confusion. The statute [ch. 24, sec. 1032 (1) Cahill] as amended May 4,1934, has a similar provision. We hold that the ordinance is valid.”

In People ex rel. Cohn v. City of Chicago, 308 Ill. App. 50, opinion filed January 20, 1941, we upheld the rule announced in the Krajci case giving effect to the provisions of the ordinance, and distinguished the cases of People ex rel. Farwell v. Kelly, 361 Ill. 54; People ex rel. Farwell v. Kelly, 367 Ill. 616; People ex rel. Farwell v. Kelly, 367 Ill. 631; and People ex rel. Mercantile Nat. Bank v. City of Chicago, 307 Ill. App. 667 (Abst.), opinion filed by the second division of this court November 26, 1940, which need not be repeated here.

The judgment of the circuit court of Cook county •awarding the writ is reversed.

Judgment reversed.

Matchett and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Mary Mrdalj, Administratrix of Estate of Marko Mrdalj, Deceased, Appellee, v. Public Service Company of Northern Illinois, Appellant.
    Gen. No. 41,416.

      Opinion filed February 17, 1941.
    Gardner, Foote, Morrow & Merrick, of Chicago, for appellant; Walter M. Fowler, of Chicago, of counsel.
    Chris D. Gregory, of Chicago, and Silvio Piacenti, of Chicago Heights, for appellee; Leslie H. Vogel and John D. De Feo, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff alleged that her father Marko Mrdalj, a widower, came to his death because of the explosion of gas in a cistern located on his property in Chicago Heights; that this explosion was because of leaking gas from the gas service pipes of defendant which supplied gas to the building on the premises; upon trial plaintiff had a verdict for $5,000, and defendant appeals from the judgment entered on the verdict.

The crucial question is the origin of the gas which exploded. Plaintiff attempted to prove it came from a leak in the underground service pipes of defendant, while defendant attempted to prove it came from methane, or sewer gas, coming from organic matter which was in the cistern.

The accident happened March 3,1936. The decedent lived with his family of children in a two-story building, fronting south, on east Main street in Chicago Heights; the first floor was used for business purposes and the second floor for living quarters; commercial gas was supplied to the building by defendant from a main in the alley at the rear, and an underground service pipe connected this main with a system of pipes in the house; this service pipe was installed over 11 years before the explosion occurred; north of the main building was a brick garage with a concrete floor on the west side of the lot; the service pipe ran under this concrete floor; to the east of this was a concrete pavement; at the rear of the house was located a cistern, built 3 years before the accident; the service gas pipe was approximately 5 or 6 feet from the wall of the cistern; the cistern was about 12 feet deep and 8 feet in diameter and was circular in form; the wall was made of common brick and cement about 4 inches thick; the floor was bisected by a brick wall — “sort of filter,” starting from the bottom of the cistern and running to about 2 inches from the top and all the way to the sides; rain water ran into the cistern by gutters and downspouts from the roof of the building and the water was drawn by an electric motor from the cistern through a pipe into a storage tank in the basement of the building; the top of the cistern was covered with cement, except for an opening 18 to 20 inches in diameter, which was covered by a solid metal manhole cover.

Two or three months before the accident some of the members of decedent’s family noticed the odor of gas in the rain water taken from the cistern. The daughter Mary testified that she was familiar with the odor of cooking gas and the odor that came from the water smelled like cooking gas. A daughter Ann testified to the same effect — that the water had the same smell as cooking gas. Other members of the family testified to the same effect. This odor was observed when the water faucets were opened. Also, the odor was noticeable in the basement in the vicinity of the pipe leading from the cistern to the storage tank. There was abundance of evidence that a strong odor came from the cistern water.

About a month or so before the accident one of the daughters told the meter reader from defendant’s office of the odor and that it was the odor of illuminating gas; he stated the odor probably came from something dead in the cistern. The odor of gas from the cistern water finally became so strong that the use of rain water in the house was discontinued.

About 10 days before the accident George, a son of decedent, went to defendant’s office to pay the monthly bill for gas; after paying the bill as directed by his father he complained to defendant’s cashier about the odor of gas in the water and was referred to the ‘‘Service Department,” where he reported the odor in the water to a man in charge; he was told that someone would be sent out to investigate but the company made no investigation nor attempted to make any repairs. This testimony is not contradicted.

On the morning of March 3, 1936, Katie, a daughter of the decedent, and the decedent were washing the family automobile in front of the premises; they observed the odor of gas from the water drawn from the cistern; after the noon meal decedent suggested that his daughter, with a helper, should finish the work on the car and he would go back in the cistern to investigate the smell; the meter reader’s statement that the odor probably came from something dead in the cistern had been told to decedent; he went back to the cistern, throwing away a cigar he had been smoking, and carried a flashlight; about a minute or two later the explosion occurred.

The entire concrete covering of the cistern was blown away and debris and large pieces of concrete were blown about; a blue flame and smoke were seen coming from the cistern; a ladder was standing on the bottom of the cistern and extending out of the opening; debris and dirt were blown into the cistern. Decedent was found lying in the next yard to the east of his property; he was blown over a fence 7 feet high which separated the two lots; he was badly burned but alive when found, and an ambulance was called but before he was removed he died.

There was evidence that after the explosion, on the afternoon and evening of the same day, defendant sent a crew of men to decedent’s building; they dug a ditch exposing the main in the alley and the service pipe; the service pipe was disconnected from the main; it was 9 or 10 feet long and when removed was found covered with layers of rust and the end of the pipe was, as a witness described it, “jagged looking like it was broken off.” It was taken away by the men and subsequently a new service pipe was laid by defendant’s workmen.

A chemical engineer, testifying as an expert for plaintiff, said that commercial gas of the kind distributed by defendant, when mixed with air, is explosive and can go through porous substances very easily; could pass through soil and substances composed of brick, mortar and cement. From the facts shown in the record he gave it as his opinion that the explosion was the result of the accumulation of commercial gas in the cistern which reached the cistern by permeating or seeping through the intervening soil and porous walls of the cistern. He also testified that it would be impossible under the circumstances to produce a combustible gas in the cistern by the decomposition of organic matter. The expert called by defendant gave a contrary opinion but also testified that sewer gas created by the decomposition of organic matter cannot live in the presence of oxygen; that rain water would be saturated with oxygen and that the decomposition of organic matter in the presence of oxygen results in a nonexplosive gas.

Defendant argues that the bottom of the cistern contained decaying organic matter which would generate sewer gas in quantities sufficient to cause an explosion. The evidence, however, shows that all the time the odor of commercial gas was detected in the cistern water the water was clear and not dirty. Defendant’s employees who observed the condition of the water were testifying as to its condition after the explosion when dirt and debris of all kinds had been blown into the cistern by the explosion. The case presented an issue of fact to be determined by the jury and it was not error for the court to deny defendant’s motion to direct a verdict of not guilty.

We are also of the opinion the jury could reasonably find that the explosion was caused by commercial gas furnished by defendant. All of the witnesses who testified as to the odor for some months before the explosion, agreed it smelled like illuminating or cooking gas. When the service pipe was removed, almost immediately after the explosion, it was shown to be rusted through and defective. There also was evidence that the surface ground was frozen, and the garage floor over the supply pipe and the surrounding area, covered by concrete, would form an impediment to the ready escape of gas to the surface.

St. Marys Gas Co. v. Brodbeck, 114 Ohio St. 423, is not in point. In that case there was evidence of a sewer opening into a garage from which sewer gas might escape; there was also in the garage a tank containing gasoline; the evidence showed that the meter and pipes from which it was claimed gas escaped were in good condition and there was no evidence of any notice to the gas company of any defect.

Defendant seeks to make some point out of the fact that the notice to the gas company was not given by the decedent in person. It was not important as to who gave the notice. The fact that defendant received notice of the leaking gas pipes is all that was necessary to charge defendant with the duty of investigating and making repairs.

Defendant further argues that under the Public Utilities Act (ch. 111⅔, § 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.057]) it was not permitted to shut off the gas for the purpose of making an inspection. This argument is entirely without merit. It has been held in a number of cases that where a gas company has knowledge that gas is escaping in a building occupied by one of its consumers, it is the duty of the gas company to shut off the gas supply until the necessary repairs have been made. Clare v. Bond County Gas Co., 356 Ill. 241, Kelley v. Public Service Co. of Northern Illinois, 300 Ill. App. 354, 362, 363. See also Edwards v. North Shore Gas Co., 289 Ill. App. 32.

It is next said that decedent was guilty of contributory negligence. It is a reasonable presumption that he had in mind to investigate the statement of defendant’s employee that the odor came from something dead in the cistern. He first obtained a ladder and put it in the opening; he .took a flashlight and threw away the cigar which he was smoking. These facts would indicate that decedent was in the exercise of ordinary care.

Defendant argues there was no evidence that decedent was a person who habitually exercised care for his own safety, and cases are cited tending to support this point. Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505, and Casey v. Chicago Rys. Co., 269 Ill. 386. In the first of these cases there was evidence tending to show that the deceased, some time prior to the accident, was intoxicated, and in the second case there was no evidence of the actions of the deceased for two and a half hours before he met his death. We are of the opinion there was sufficient evidence in this case that deceased was in the exercise of due care for his own safety. Devine v. Delano, 272 Ill. 166; Chicago & E. I. R. Co. v. Beaver, 199 Ill. 34.

There were no errors in the rulings on the evidence, nor were there any reversible errors in the argument to the jury. As was well said in Devine v. Chicago City Ry. Co., 167 Ill. App. 361, 364: 11. . . it is assumed in these cases that at the first warm and unjustified word thrown out by counsel, in the heat and enthusiasm of the argument, that the jurors will forget the evidence, the instructions of the court and the obligations of their oaths, and follow instead the unguarded and perhaps unjustified statement. However it should be borne in mind that it is the presumption of law that jurors are intelligent, honest, fearless and just. Courts are not justified in assuming that the mind of the jury is of such plastic and unreliable material as to at any unjustified word of debate neglect the instructions, abandon the evidence and disregard their oaths.”

Complaint is made of an instruction given at the instance of plaintiff. It in substance told the jury that if it found from the preponderance of the evidence that defendant was guilty of negligence as charged in the complaint and that such negligence proximately caused the explosion and the death of Marko Mrdalj, and if he was at the time in the exercise of ordinary care for his own safety, they should find defendant guilty. It was said it was erroneous to refer to the negligence “as charged in the complaint.” The complaint in this case was not taken by the jury, and the giving of such an instruction has been held not to constitute reversible error. Belskis v. Dering Coal Co., 246 Ill. 62, 69; Krieger v. Aurora E. & C. R. Co., 242 Ill. 544.

The real issue was one of fact. Was the accumulation of gas distributed by defendant, in decedent’s cistern, the cause of the explosion? The jury answered this question in the affirmative and we cannot say the verdict is manifestly contrary to the weight of the evidence.

The judgment is affirmed.

Judgment affirmed.

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


author: Mr. Justice Matchett

text:
    Scottish American Company, Appellant, v. Mantle Lamp Company of America, Appellee.
    Gen. No. 41,373.

      Opinion filed February 17, 1941.
    J. A. Cobbey and Earl K. Schiek, both of Chicago, for appellant.
    W. H. F. Millar, of Waynesville, N. C., and Nicholas J. Madgey, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff, the assignee of six accounts receivable from defendant to the Cartons & Specialties, Inc., sued to recover the amount of $2,521.42, said to be due on the accounts. Defendant pleaded payment, accord and satisfaction, adopted and ratified by plaintiff.' The issues were submitted to a jury which returned a verdict for defendant. The court overruling motions for a new trial and for judgment notwithstanding the verdict entered judgment from which plaintiff appeals.

There is practically no dispute as to the facts. Plaintiff argues the judgment for defendant should be reversed and judgment entered here in its favor.

Plaintiff was factor for Cartons & Specialties, Inc., which did business in Chicago. The defendant was a customer of that company, also doing business in Chicago. The contract by which plaintiff agreed to act as factor was made March 4, 1937. From April 29, 1937, to July 23, 1937, plaintiff purchased a considerable number of the accounts. In each account the assignor sent an invoice to the defendant on which was a printed notice that plaintiff - was acting as factor for Cartons & Specialties, Inc.; that the account had been assigned to plaintiff, and that payment should be made to the plaintiff at its office. Plaintiff also wrote defendant to the same effect. Notwithstanding, the business was not carried on in that way. On the contrary, the defendant made checks for the amount due' to the order of Cartons & Specialties, Inc., and delivered these checks to it, which in turn indorsed and delivered the checks to plaintiff who accepted the same. Seventeen such checks are in evidence, representing other transactions between the same parties. Plaintiff made no particular objection to this way of doing business until August 13,1937, when having learned that checks for the accounts now sued on had been sent by defendant to Cartons & Specialties, Inc., but not forwarded to plaintiff a statement was sent to defendant and a letter written which said: “We desire to call your attention that these invoices are assigned and payable only to Scottish American Company, to whom all checks are to be sent.” In fact, defendant had sent to Cartons & Specialties, Inc., 5 checks payable to its order, covering the amounts of these accounts. Cartons & Specialties, Inc., did not forward these checks to plaintiff or indorse the same to it, but on the contrary deposited the same in its own account.

This fact was called to the attention of Mr. Boyle of Cartons & Specialties, Inc., by a public accountant who was auditing the books of the corporation. Mr. Boyle at once called on Mr. Badger and Mr. Suyr of plaintiff company and explained what had happened. Mr. Boyle told them he had some other accounts and some merchandise which he offered to assign in settlement of the matfer. They indicated willingness to accept the settlement and told Mr. Boyle to write a letter outlining the same. He did so on August 20, 1937. The new accounts with the certificate for the merchandise, which had been stored in a bonded warehouse, were assigned, delivered to and accepted by plaintiff, and on August 20, the accounts were credited on its books as paid in full.

In early October, Cartons & Specialties, Inc., filed a petition in bankruptcy, and March 23, 1938, Fred E. Hummel, .who had been appointed trustee, filed a petition in the bankruptcy court which in substance averred that the transaction of August 20, 1937, was made while the bankrupt was insolvent and that it amounted to an unlawful preference. The petition stated the trustee had been offered $1,750 by plaintiff to settle his claim and asked the advice of the court. An order was entered giving the trustee leave to settle for that amount, and plaintiff gave to the trustee its check for that sum. Both these settlements so far as the record shows were made without the knowledge or. consent of defendant.

The court by an instruction given at the request of defendant submitted to the jury the question of whether plaintiff by acquiescence and approval and by failure to protest constituted Cartons & Specialties, Inc., its agent to accept payment of these accounts and forward the same to it. By its verdict the jury gave an affirmative answer.

There is no doubt as a general rule that payment to a nominal creditor after notice of assignment is no defense to a suit brought by the assignee. Chicago Title & Trust Co. v. Smith, 158 Ill. 417, 424; State Street Furniture Co. v. Armour & Co., 259 Ill. App. 589, 594.

Plaintiff contends on the authority of City Bank of New Haven v. Wilson, 193 Mass. 164, 79 N. E. 246, that the facts here were not sufficient to constitute Cartons & Specialties, Inc., the agent of plaintiff to receive payment of these accounts and forward the same to it. The cases are distinguishable in that there the trial court had found there was no agency while in this case the verdict of the jury, approved by the trial court, is in effect that an agency existed. We agree with plaintiff that an agency is not to be lightly inferred, and that the burden is on defendant paying to a third party under such circumstances, to prove the authority of the third party. 1 Mechem on Agency (2d Ed.) p. 667; Schomaker v. Petersen, 103 Cal. App. 558, 285 Pac. 342.

The controlling facts here are, however, uncontra-dicted. Whether we regard the payment made to Cartons & Specialties, Inc., as authorized or unauthorized and whether the act was contractual or tortious, plaintiff with full knowledge and without consulting defendant made a full settlement with Cartons & Specialties, Inc., in satisfaction of its acts in appropriating these accounts. It may not now be heard to assert that the act was wrongful and without authority. It received and appropriated the benefits. It ratified both in whole and in part. 1 Mechem on Agency (2d Ed.) p. 264. In the Restatement of the Law of Agency, vol. 1, ch. 4, par. 82, p. 197, the rule as to ratification is stated to be: “Ratification is the af-firmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.” We hold that by the settlement made with Cartons & Specialties, Inc., on the 20th of August, 1937, plaintiff ratified payment of these accounts to the assignor corporation.

Plaintiff contends this ratification was rendered void as constituting a payment by way of preference contrary to sec. 60 of the Bankruptcy Act (11 U. S. C. A., sec. 96). This section has been construed in numerous cases and it has been uniformly held that in order to constitute such a preference the bankrupt must have been insolvent at the time of the transaction, the transaction must have taken place within 4 months of the bankruptcy,. the transaction must have resulted in the creditor receiving a larger percentage of his debt than other creditors of the same class, the transaction must have diminished the estate of the bankrupt and the person receiving the preference must have had reasonable cause to believe at the time that the payment would effect such a preference. Abeken v. United States, 26 F. Supp. 170; Haas v. Sachs, 68 F. (2d) 623. The authorities also agree that to the determination of the question of preference as against an adverse party in possession a plenary suit is necessary. In Re Graessler & Reichwald, 154 Fed. 478; Consani v. Brandon, Id.; Remington on Bankruptcy (4th Ed.) vol. 5, sec. 2134.

Defendant was not a party to the first settlement of August 20, 1937, between the assignor and plaintiff nor the subsequent settlement made between plaintiff and the trustee in bankruptcy. There is not a scintilla of evidence tending to show that on August 20, 1937, this defendant had any reason to believe that the assignor was bankrupt. Plaintiff made that settlement voluntarily and without any adjudication of which defendant had notice or to which it was a party. It would be most unfair to make these settlements without any notice to defendant or opportunity on its part to contest and afterward hold defendant to be bound thereby. We hold, as a matter of law, defendant was entitled to judgment in its favor, and the judgment will be affirmed.

Judgment affirmed.

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


author: Presiding Justice Wolfe.

text:
    Royal Ager, Appellee, v. Travelers Casualty Insurance Company, Appellant.
    Gen. No. 9,597.
    opinion filed February 7, 1941.
    Gower, Gray & Gower, for appellant; LaMarre & Diamond, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Patrick D. Fahey, Plaintiff in Error.
    Gen. No. 9,605.

      opinion filed February 7, 1941.
    William C. Mooney, Thomas D. Nash and Michael J. Ahern, for plaintiff in error; Daniel J. Lamont and John J. Kennelly, of counsel; James E. Burke, State’s Attorney, for defendant in error.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


text:
    Ignatius Leitner, Administrator of Estate of Raphael Leitner, Deceased, Appellee, v. Decatur Cartage Co. and Cecil Roberts, Appellants.
    Gen. No. 9,610.
    opinion filed February 7, 1941.
    Clarence W. Heyl, for appellants; W. J. Reardon and Knoblock & Sloan, for appellee; John F. Sloan, Jr., of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Chicago Title and Trust Company et al., Appellees, v. William Shiner et al., Appellants.
    Gen. No. 41,637.
    opinion filed February 13, 1941.
    Shaffer & Freedman, for appellants; Michael B. Roderick, of counsel; - Mayer, Meyer, Austrian & Platt, for appellees; David F. Rosenthal, Thomas H. Alcock and Edwin A. Rothschild, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.’’


text:
    Otto Pohl, Administrator of Estate of Evelyn Pohl, Deceased, Appellee, v. Adam Fazzi, Appellant.
    Gen. No. 9,575.

      opinion filed February 14, 1941.
    Frank E. Maynard, for appellant; Walker F. Hull, B. Jay Knight and John E. Goembel, for appellee; Frederick H. Haye, of counsel.
   Opinion by

Presiding Justice Wolfe.

“Hot to be published in full.’’


author: Justice Huffman.

text:
    Margaret Tarvin, Administratrix of Estate of Murel Tarvin, Deceased, Appellee, v. George Ennen, Appellant.
    Gen. No. 9,604.
    opinion filed February 14, 1941.
    Milo J. Fleming, for appellant; Edward F. Braden, for appellee.
   Opinion by

Justice Huffman.

“Hot to be published, in full.’ ’


text:
    Gerald Grant and Robert L. Grant, Trading as Grant’s Art Galleries, Appellees, v. Chicago Hair Goods Company (Morris L. Goldstein), Appellant.
    Gen. No. 41,427.

      opinion filed February 17, 1941;
    rehearing denied March 3, 1941.
    Sinon A. Murray, for appellant; Louis A. Rosen-thal and Raymond I. Suekoff, of counsel; V. D. McConnell, for ap-pellees.
   Opinion by

Presiding Justice O’Connor.

“Not to be published. in full.’’


author: Justice McSurely.

text:
    Thomas A. Sheridan, Appellant, v. Dr. Louis L. Fiorito, Appellee.
    Gen. No. 41,467.
    opinion filed February 17, 1941.
    Harold L. Nimz and Goodman & Golosinec, for appellant; Irving Goodman, Ben W. Goldman and Harold L. Nimz, of counsel; Ross & Berchem, for appellee; Harold W. Huff and James R. Mills, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


author: Justice Matchett.

text:
    Thomas T. North, Appellee, v. John D. Wiese, Appellant.
    Gen. No. 41,232.

      opinion filed February 17, 1941;
    rehearing denied March 4, 1941.
    Ashcraft & Ashcraft, for appellant; Russell F. Locke and Rufus D. Beach, of counsel; Lord, Bissell & Kadyk, for appellee; David J. Kadyk and Herbert C. Brook, of counsel.
   Opinion by

Justice Matchett.

“Hot to be published in full.”


text:
    R. Gillies, Appellee, v. E. B. Marshall, Appellant. Brady’s Stamp Shop, Inc., Appellant.
    Gen. Nos. 41,317, 41,334.
    opinion filed February 17, 1941.
    Seymour S. Cunningham, for appellants; Randolph Bohrer, for appellee; Milton J. Fink, of counsel.
   Opinion by

Justice Matchett.

“Hot to be published in full.”


author: Mr. Presiding Justice Wolfe

text:
    Jessie O. Cooney, Administratrix of Estate of Earl T. Cooney, Deceased, Appellee, v. F. Landon Cartage Company, Appellant.
    Gen. No. 9,537.
    Opinion filed February 7, 1941.
    Rehearing denied March 17, 1941.
    Lord, Bissell & Kadyk, of Chicago, and Weaver & Weaver, of Wheaton, for appellant; C. H. G. Heinfelden and Bruce S. Parkhill, both of Chicago, and Harry G. Weaver, of Wheaton, of counsel.
    Sidney F. Blanc and Thomas J. Lawless, both of Chicago, and Alschuler, Putnam & Johnson and Sears, O’Brien & Streit, both of Aurora, for appellee; Edward F. Streit, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an action for damages for the death of Earl T. Cooney, plaintiff’s intestate, who was killed in an automobile collision on March 6, 1936, when the automobile which he was driving collided with the truck of the defendant, which was parked on the outer lane of traffic of a four-lane highway. Cooney was killed instantly, and the car he was driving was demolished.

The case has been tried twice. The original complaint consists of four counts. The first trial resulted in a verdict and judgment for $7,000 for the plaintiff upon the claim for the wrongful death of plaintiff’s intestate. The case was appealed to this court and reversed without passing upon the merits, and the cause was remanded. After the cause was remanded, the case was again tried before a jury who rendered a verdict in favor of the plaintiff for $7,500. The defendant entered a motion for judgment notwithstanding the verdict and for a new trial, and in arrest of judgment. All of these motions were overruled and judgment entered on the verdict, and the appeal from this judgment is prosecuted to this court.

The first count of the original complaint filed in the case charged that the defendant, F. Landon Cartage Company, was a corporation organized under the laws of the State of Illinois, and was a common carrier engaged in transporting property by motor truck for hire; that on March 6, 1936, it was operating a motor truck in an easterly direction along a public highway known as State Eoute 64, in DuPage county north of the city of "Wheaton, Illinois; that on the same day the plaintiff’s intestate, Earl T. Cooney, was driving an automobile owned by the plaintiff, Jessie O. Cooney, in an easterly direction on the same highway and at all times was in the exercise of due care and caution for his own safety; that while the said Earl T. Cooney was driving the automobile of the plaintiff along said highway, the defendant at said place, during* the night, caused and permitted its motor truck to stop and stand on said highway without leaving any person in charge thereof, or with, or about the same, and then and there carelessly and negligently and in violation of section 41D of the Motor Vehicle Act of Illinois, failed and neglected to give warning thereof, by displaying' burning flares or portable lights in the immediate vicinity of said motor truck; that said motor truck was not stopped, as aforesaid, for the purpose of taking on passengers or complying with traffic regulations; that by reason of said carelessness and negligence in failing to place flares as aforesaid, the collision occurred and Earl T. Cooney sustained injuries, which resulted in his death. Before the second trial started, the defendant made a motion to strike the first count, because the law requiring flares to be displayed when a truck was stopped upon a paved road had been repealed, and there is no saving clause in the repealing act, therefore the case must be decided upon the law as existing at the time of the second trial. The court sustained this motion and the first count of plaintiff’s complaint was stricken. The plaintiff, now appellee, has assigned cross error on the ruling of the court in sustaining the motion to strike. Numerous cases have been cited by the appellee as sustaining their contention that it was error for the court to strike this count. The case of People ex rel. Eitel v. Lindheimer, 371 Ill. 367, we think is decisive of the question raised. The court in the opinion in the above-cited case on page 373 use this language: “That the legislature cannot pass a retrospective law impairing the obligation of a contract, nor deprive a citizen of a vested right, is a principle of general jurisprudence, but a right, to be within its protection, must be a vested right. It must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another. If, before rights become vested in particular individuals, the convenience of the State induces amendment or repeal of the laws, these individuals have no cause to complain. (People v. Clark, supra; Dodge v. Board of Education, 364 Ill. 547; I Lewis’ Sutherland on Stat. Const. (2d ed.) sec. 284; 6 R. C. L. 308, 309.) A retrospective statute affecting vested rights is very generally considered in this country as founded on unconstitutional principles and consequently inoperative and void; but this doctrine is not understood to apply to remedial statutes of a retrospective nature not impairing contracts or disturbing absolute vested rights. (People v. Clark, supra; Fairfield v. People, 94 Ill. 244.) The legislature has the undoubted right to repeal all legislative acts which are not in the nature of a private grant. (Wall v. Chesapeake and Ohio Railway Co. 290 Ill. 227; Smolen v. Industrial Com. 324. id. 32; Sharp v. Sharp, 213 id. 332.) The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered. (Merlo v. Johnston City and Big Muddy Coal Co. 258 Ill. 328; People v. Clark, supra; South Carolina v. Gaillard, 101 U. S. 433; Cooley’s Const. Lim. (2d ed.) 381.) We have had several occasions to consider cases involving those principles.”

The appellees insist that section 4 of chapter 131, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 27.16], operates as a saving clause in this case, and therefore they had a right to go to trial on count one. The same question was before this court in the case of People v. Sper- oni, 273 Ill. App. 572. In that case the law relative to the repeal of statutes, is thoroughly discussed and what was said there, is applicable here. The right for plaintiff to recover damages for the death of Earl T. Cooney was purely statutory. The act repealing the former statute had no saving clause, and it is our conclusion that the court properly held that the first count of plaintiff’s complaint should be stricken.

The evidence shows that the defendant, by its servant, Joe Fink, was driving the truck in question along a hard-surfaced highway; that he noticed the engine began to sputter and he “jiggled” the carburetor, and the truck rolled ahead a short distance and stopped; that he made no effort to drive off of the pavement, but stopped with all of the wheels on the pavement. The road was a four-lane paved highway, 40 feet wide with a right of way of 30 feet on either side of the pavement and with 10 to 12 foot shoulder on each side of the pavement; that this shoulder had been frozen for at least 30 hours, as the thermometer had been below the freezing point steadily for that length of time.

The case went to trial upon the second and fifth counts of the declaration. Count two charges general negligence of the defendant and the injury of the plaintiff’s intestate. Additional count five alleged the duty of the defendant to exercise care on its behalf in the management of the truck which they failed to do, and especially charged that they were operating their truck on State Eoute No. 64, outside of a business or residence district, and failed and neglected to stop, or park its motor vehicle truck, contrary to section 185 of Ill. Rev. Stat., ch. 95½ [Jones Ill. Stats. Ann. 85.217], which states that it was the duty of the defendant to carry on the said truck and semitrailer at least three flares or electric lanterns capable of producing warning lights, etc.; and that the defendant failed to carry such flares or signals and as a result thereof, the plaintiff was injured. The defendant filed its answer denying all the material allegations of the complaint except the facts that they were the owner of the truck in question, and the driver thereof, was their agent.

The collision occurred between six and seven p.m. central standard time. There is no question but that it was getting dark. A short time before the collision, seven men in a Buick car left St. Charles, Illinois, and drove east on route 64 for the Golden Glove Fight at the Stadium in Chicago. Four of these men were called as witness at the trial. When the Buick car was near St. Charles, a Plymouth Sedan passed it on the left. It was the car that Earl T. Cooney was driving at the time he met his death. Both cars had their lights burning at the time. The Buick followed the Plymouth until the time of the accident. For 5 or 6 miles before the accident occurred, the driver of the Buick had his car in the north, or second lane of the traffic going east. Earl T. Cooney was driving the Plymouth car in the right-hand or southern lane of traffic. After the Plymouth passed the Buick, both cars drove approximately at the same speed, and the Buick followed at approximately 300 feet behind the Plymouth. The speed was estimated all the way from 45 to 70 miles per hour. The driver of the Buick car first saw the red lights of the truck when he was about 3 to 4 blocks away. When he was about two blocks away, or approximately 500 feet, he said he was able to determine that the truck was not moving, and at that time, the Plymouth car was about 200 feet from the truck. Just before the crash of the Plymouth car with the truck, the driver of the Buick turned his car into the westbound lane of traffic, as he said, to give the Plymouth a chance to slow down and turn into the second or next lane to the one on which the truck was stopped. The Plymouth drove head on into the back end of the truck, apparently without swerving to the right or to the left. Afterwards there were skid marks on the pavement estimated to be at least 100 feet in length that was caused by the Plymouth. The Plymouth struck the right-hand rear corner of the trailer near the right edge of the pavement. Part of the lights on the back of the truck were broken off. The Plymouth car was driven underneath the trailer and badly damaged. The right wheel of the trailer was torn from the frame. At the time of the crash, there was no other traffic in the immediate vicinity of the truck. By the force of the collision, Earl T. Cooney was killed.

After the truck stalled on the pavement, the driver had ascertained that he was out of gasoline. He states that he looked at the back of the truck to see if the lights were all on and that they were. He looked at the headlights to see if they were on and the lights at the top of the front were all on. He then tried to flag a ride to get t’o a filling* station and could not do so. He started to walk west, but decided there was a closer station to the east. He went to the one to the east and was getting gasoline when he heard the crash. Someone took him down to the place where he had his truck, and he found that there had been a collision. The evidence clearly establishes the fact that there was at least four red lights burning* on the back of the truck at the time of the collision.

Under the evidence, as given at the trial, the defendant seriously contends that plaintiff’s intestate was guilty of contributory negligence, and even conceding, which they do not, that the driver of the truck was negligent in the way he left his truck on the highway, the plaintiff is barred from a recovery in this case.

The parties were called as witnesses that were riding-in the Buick car at least 300 feet back of Earl T. Cooney, as he approached the truck in question. The majority of these people saw the lights on this truck at least four or five hundred feet from it. When they could see these lights, what was there to prevent Earl T. Cooney from seeing them in time to avoid a collision? There was no one approaching* from the east and no one near him in the second eastbonnd lane of traffic, but from the evidence, it appears that he did not see the truck at all until within about 100 feet from it. This is indicated by the skid marks of his car. This court is reluctant to set aside a verdict of a .jury for the reason that the evidence shows that the plaintiff’s intestate was guilty of negligence which was the contributing cause to the injuries, but in this case it seems to us, that if plaintiff’s intestate had been observing the road ahead, he certainly should have seen the lights of the truck in the road in time to avoid a collision. Under the evidence in this case, the judgment cannot stand.

There are numerous other questions raised, both by appellant and appellee, but since we have arrived at the conclusion that the evidence shows that the plaintiff’s intestate was guilty of contributory negligence which caused his death, we do not deem it advisable to discuss the other questions. The judgment of the trial court is reversed and the cause remanded.

Reversed and cause remanded.