text:
    Ragwald Brandt, Appellant, v. St. Paul Mercury Indemnity Company, Appellee.
    Gen. No. 38,475.
    Opinion filed April 22, 1936.
    H. Kay George and Martin Rothman, both of Chicago, for appellant.

      Hamer & Campbell, of Chicago, for appellee; Chester D. Kern, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal by Eagwald Brandt, plaintiff, from a judgment and order entered in the circuit court of Cook county, dismissing the suit at plaintiff’s costs. The action as shown by the statement of claim was one in contract on a policy of automobile liability insurance to recover damages in the sum of $10,000, resulting from personal injuries sustained by plaintiff due to the negligence of W. 0. Helwig, the assured named in said policy.

Plaintiff further alleges that on or prior to November 15, 1931, the St. Paul Mercury Indemnity Company issued a policy of liability insurance to one W. O. Helwig, covering the automobile of said Helwig and at that time there was in force and effect in the State of Wisconsin the following statute:

“85.93 — Accident insurance, Liability of insurer. Any bond or policy of insurance covering liability to others by reason of the operation of a motor vehicle • shall be deemed and construed to contain the following conditions: That the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, irrespective whether such liability to be in praesenti or contingent and to become fixed or certain by final judgment against the insured, when caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein, such liability not to exceed the amount named in said bond or policy.” (Wisconsin Statutes, 1929.)

Plaintiff further alleges that on-November 15, 1931, the said Helwig negligently operated an automobile so that it ran into, upon and against the automobile of plaintiff, thereby injuring the said plaintiff and damaging plaintiff’s automobile. Plaintiff sustained injuries to his body, head and limbs, etc., wherefore he alleges that the defendant, as the insurer of W. 0. Helwig became liable and is indebted to him in the sum of $10,000. The accident occurred at or- near the town of Sturdevant, in the county of Racine and the State of Wisconsin.

Plaintiff’s theory of the case is that the cause of action is brought on a written contract; that the statute of limitations on a written contract does not bar the action and that by virtue of the above named statute of the State of Wisconsin, it is not necessary to have a determination between the injured party and the assured as to the liability of the assured before his action can be brought; that there is no evidence in the record that there has been a prior adjudication between the same parties and the same subject matter in a prior suit.

Defendant’s theory of the case is that the cause of action of the plaintiff is based upon a tort and therefore the statute of limitations affecting suits in torts has barred the action; that there is nothing in the complaint to predicate an action against the defendant company before there is a determination of liability against the assured and that the same subject matter upon which plaintiff’s cause of action is based has been adjudicated.

A special appearance and motion was entered by the defendant, St. Paul Mercury Indemnity Company, asking the court to dismiss the complaint for want of jurisdiction as to the person and the subject matter and giving several reasons therefor, among them being, that the cause of action had expired by virtue of the statute of limitations. With said motion there was filed the equivalent of a plea of res judicata, asking the court to exercise its general jurisdiction to pass upon the statute of limitations and plea of res judicata. This action by the defendant operated of itself to overrule the special appearance and to make the same the equivalent of a general appearance. Among the other things which it set up on its motion to dismiss was the fact that a suit had been commenced prior to that time for the same cause of action predicated on the same trespass and acts of negligence. This action had been commenced in the superior court between the same parties and on a hearing in that court on January 4, ■1935, the following order was entered:

“Ragwald Brandt v. W. O. Helwig and St. Paul Mercury Indemnity Co., a corporation.

Law

Superior Court op Cook County r

No. 551281 Jan. Term, 1935.

“On motion of attorneys for defendant, St. Paul Mercury Indemnity Co., a corporation, appearing by special and limited appearance for the sole and limited purpose of questioning the court’s jurisdiction of said defendant of the subject matter of said suit, the court after full argument and being fully advised in the premises, orders:

“It is hereby ordered that the said motion is hereby overruled as to all points raised by the said defendant except as to the bar of the statute of limitations and said motion is sustained on the ground that it appears that the cause of action set up in said amended complaint was barred solely as to said defendant at the time of the filing of said amended complaint, more than two years having elapsed since the happening of the matters set out in the original declaration filed in this cause. It is further ordered that said defendant is hereby dismissed out of said cause at plaintiff’s costs.

“Enter:

Frank H. Hates (Signed) Judge.

“Dated Jan. 4, 1935.”

This order as before stated was contained in the verified motion of defendant in this cause. Thereupon this cause came on for hearing on the motion in the circuit court where, after a hearing, the following order was entered :

“State of Illinois }

County of Cook j ss‘

Circuit Court of Cook County.

Ragwald Brandt v. St. Paul Mercury Indemnity Company, a corporation.

Gen. No. 35-C-3809

‘ ‘ On motion of............. solicitor for

“This cause coming on to be heard upon the defendant’s Special Appearance and Motion filed herein to dismiss this cause, after arguments of counsel and due deliberation by the Court, said motion is sustained and the cause dismissed at plaintiff’s costs.

“Therefore, it is considered by the Court that the plaintiff take nothing by his said suit and that defendant go hence without day and do have and recover of and from the plaintiff, Bagwald Brandt, its costs and charges in this behalf expended, and have execution therefor.

“Enter: D. J. Normoyle (Signed) Judge

Chicago,.............”

No appeal was taken from the order entered in the superior court and it remains in full force and effect and no objection was made to the order entered in the circuit court. In addition to this, however, the order entered in the superior court not having been appealed from would be binding on the parties thereto as to all issues therein involved and would be res judicata as to maintaining the same suit between the same parties on the same cause of action in the circuit court.

It is contended that the defendant did not maintain the burden of proving a prior adjudication under its defense of res judicata. Under the Practice Act, chapter 110, par. 176, sec. 48, Ill. State Bar Stats. 1935, where affidavits are made as to certain facts and filed and no contradiction is made thereto, this court will presume that the trial court had sufficient evidence before it to justify its entering the order. This is particularly true where the record shows no request by plaintiff to submit the facts alleged in said motion to a jury. No error was committed by the trial court in dismissing the said suit and entering the order which it did.

For the reasons herein given the order and judgment of the circuit court is affirmed.

Order and judgment affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Frank T. Jordan, Appellee, v. Heino F. Busch et al., Defendants. Appeal of Heino F. Busch, Appellant.
    Gen. No. 38,563.

      Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Fisher & Fisher, of Chicago, for appellant; George A. Gordon and Arthur S. Flank, both of Chicago, of counsel.
    Milford H. Olds, of Chicago, for appellee; Charles E. Lewis and Hugh J. McCarthy, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the superior court in the sum of $12,200 and costs in favor of the plaintiff Frank T. Jordan and against the defendants, Heino F. Busch and Charles Venn, as damages claimed by plaintiff because of a breach of contract. James J. Bedding was not served with process and did not appear. The case was tried by the court without a jury.

From the facts it appears that the plaintiff, a lawyer, together with defendants Busch, Venn and Bedding, promoted a brewery enterprise in the spring of 1933 and secured an option to purchase a brewery plant at Bock Island, Illinois. Busch denied that Jordan promoted or secured an option with the defendants.

On June 21,1933, the Bock Island Brewing Company was organized with 110,000 shares of preferred and 55,000 shares of common stock. Busch, Venn and Bedding conveyed their option to the corporation and they obtained therefor all of the common stock, or 18,333yj shares each which was later reduced to 14,066 shares each. Busch and Bedding were employed by the corporation as sales managers and Venn was employed as plant manager. Busch was elected a director and vice president. Venn and Bedding held no office.

On July 7,1933, plaintiff and the defendants entered into a contract, wherein Busch, Venn and Bedding, the defendants herein, are named as parties of the first part and Frank T. Jordan, plaintiff herein, is named as the party of the second part. The agreement further recites that the parties of the first part are the owners of a substantial interest in certain brewery property located at Bock Island, Illinois, and that the party of the second part claims an interest in said property and that the parties have reached this agreement relating to the extent of the interest of the party of the second part.

The contract further provides that the party of the second part agrees to and does assign, transfer, relinquish and release unto the parties of the first part all of his right, title and interest of every nature and description in and to said brewing property located in Bock Island, Illinois, and in consideration thereof, the parties of the first part jointly and severally agree to pay to the party of the second part the sum of $12,500 in 59 equal monthly instalments (without interest thereon) of $208.33 on the first day of each and every month commencing on the first day of September, 1933. Said payments to be subject to adjustment as hereinafter provided.

The contract further provided that the above payments to be made by the parties of the first part to the party of the second part, shall be made only from the salaries and dividends received by the parties of the first part on their interest in said brewery property in Bock Island, Illinois. It further provided that in the event the total monthly income of all the parties of the first part, received by them as salaries and dividends, shall be less than $3,000 then and in that event the current monthly instalment payment to be made to the party of the second part for that month shall be reduced in the same proportion as the total monthly income shall bear to said sum of $3,000. And, in the event the said total monthly income shall exceed the sum of $3,000, then and in that event the current monthly instalment payment to be made to the party of the second part for that month shall be increased in the same proportion as the total income for that month shall bear to said sum of $3,000; but in no event shall the total of the amounts paid to the party of the second part exceed the said sum of $12,500, nor shall any of said amounts bear any interest.

It was further provided in the contract that such compensation as the party of the second part may receive for legal services he may render to the parties of the first part, in connection with the said Rock Island Brewery property, or the corporation or other entity formed to conduct the business of said Rock Island brewery property aforesaid, during the five-year period commencing August 1, 1933, next ensuing, shall be credited to the parties of the first part as payments on account of the sum of $12,500.

The contract further provided for the payment in case of the death of the party of the second part. It was agreed that during the lifetime of the party of the second part his interest is personal, but in the event of his death prior to the payment in full of moneys hereinbefore provided to be paid by the parties of the first part, then and in that event, the moneys thereafter payable to the party of the second part shall be paid to his heirs at law and that neither he nor his heirs will assign, transfer, hypothecate or record this agreement without the written consent of the parties of the first part and that in the event he or his heirs assign, transfer, hypothecate or record said agreement without such written consent, this agreement and the rights of the party of the second part and his heirs herein shall become null and void.

The contract further provides that the agreement is predicated upon the consummation of the acquisition of said Bock Island brewery property by the parties of the first part or by the corporation which they shall proceed to have organized, and in the event the parties of the first part, or said corporation shall not acquire said brewery, this -agreement shall be null and void.

It appears that on March 13, 1934, at the annual meeting of the corporation, Busch and Bedding resigned as officers and as employees of the corporation; that they entered into contracts with certain investment bankers whereby they each traded 14,166 shares of common stock in the corporation for 3,000 shares of preferred stock and that the bankers agreed to repurchase from each of them their 3,000 shares of preferred stock for $18,750. Busch and Bedding each received $3,750 in cash on account thereof at the time of the agreement and thereafter they each received substantial payments on the unpaid balance of the purchase price. Busch denied that the stock sold by him and Bedding was all the stock they owned when sold. He further denied that he had an interest in the corporation which would entitle him to dividends, although the amount thereof, if any, does not appear.

Venn, one of the other defendants, sold his stock at the time of incorporation and had no interest in the corporation which would entitle him to dividends. In March, 1935, long after plaintiff brought his suit, Venn resigned as plant manager of the corporation.

It appears that plaintiff was, at all times, ready to perform legal services for the defendants in connection with the corporation, but he was not requested to render any services. Busch claims that under the contract sued upon, defendants are entitled to be credited with such compensation as plaintiff may receive for legal services he may render the corporation during the five-year period from August 1, 1933 to July 31, 1938, consequently, the amount of such credits cannot be ascertained until July 31,1938, and therefore plaintiff’s action is premature.

The three defendants received a total sum of $10,219.92 as salaries from the corporation from June 25, 1933 to March 13, 1934. They each received the total sum of $3,406.64, $2,606.64 in cash and $800 in preferred stock of the company. In February, 1934, they each paid plaintiff $100, or a total of $300 on account of the contract. According to the defendants the total amount due plaintiff was $709.70, less $300 paid on account, or $409.70, which amount was tendered by Busch in open court.

It is the claim of the plaintiff that the defendants, by their conduct, made impossible the performance of a condition precedent, upon which their liability, by the terms of the contract, was made to depend.

The defendants contend that the contract is not an absolute agreement to pay, but is an agreement to pay out of a special fund, to-wit, ‘ ‘ salaries and dividends ’ ’ and that therefore the defendants are only indebted to the plaintiff out of this fund in the sum of $409.70 and that the alleged impossibility of receiving further “salaries and dividends” is not attributable to their fault and that plaintiff’s action was prematurely brought.

There is little difference in the allegations of the parties as to the facts. Although it is contended by some of the defendants that Jordan had no interest, the contract recites that he did have, but that it was purchased by the defendants and the only point that is controverted is as to the method of payment and when.

The contract provides for the payment by the defendants to the plaintiff of a certain sum per month out of “salaries and dividends” received by the promisor “on their interest” in said brewery property in Rock Island, Illinois. There is no doubt that if the method of payment,, as provided in the contract, shall be from a certain fund which is specified in the contract, then the plaintiff cannot recover generally from the defendants, but is restricted to the payment from the specified fund.

Plaintiff takes the position that the defendants having sold their interest in the corporation, by the disposal of their stock, produced the effect of alienating the source of the funds from which the payments were to be made. There can be no denial that the defendants having sold their stock, which of course would alienate the possibilities of a dividend, and ceasing to be employed by the company which would eliminate the possibility of salary, did for all practical purposes prevent the carrying out of the contract by its terms. Under these circumstances the plaintiff could not hope to recover according to the terms of the contract.

The rule of law is that when a party agrees to pay out money from a fund which is derived only from a certain source, this condition is for the benefit of the promisor and, if he alienates the source of that fund, he cannot escape liability. It is a principle of fundamental justice that if a promisor himself is the cause of a failure of performance either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure. One who agrees to pay for goods on delivery, cannot set up the lack of delivery when caused by his own act. Williston on Contracts, Vol. II, section 677. In St. Louis Dressed Beef & Provision Co. v. Maryland Casualty Co., 201 U. S. 173, the court said: “In general, when one party by his fault prevents the other party to a contract from entitling himself to a benefit under it according to its terms, the former is liable for the value of that benefit less the value or cost of what the plaintiff would have had to do to get it.”

In City of Chicago v. People ex rel. Norton, 56 Ill. 327, the court at page 333, said:

“If a person promise to pay a sum of money when he shall collect his demands of another, then if it appear that he had no demands, or if he have and fail to use due diligence to collect them, in either case the promise may be enforced as absolute.”

It is further contended by defendants that although they have sold their stock and resigned as officers and directors of the company and have no further interest in the company, the agreement provides that any money plaintiff may receive for legal work performed for the company should be deducted from the sum named in the contract and plaintiff should wait for a period of five years to see if the company would give him any legal work to do. The company has not done so in the past and there is no evidence or even an intimation of their intention to do so in the future. There can be but little doubt that, regarding the appointment of plaintiff as legal counsel, the parties contemplated the control of the company would remain in the defendants. The record shows that other counsel represent the new owners of the corporation and doubtless they would have no occasion to employ the plaintiff. By selling the interest and control in the property, they voluntarily put it out of their power ever to realize any dividends from the brewery or to employ the,plaintiff. Consequently, the payments due under the contract became due and payable eo instanti. Wolf v. Marsh, 54 Cal. 228.

It seems clear that where a contract is made which is performable at the time of the occurrence of a future event, the law imputes to the promisor an agreement that he will put no obstacle in the way of the happening of that event and that he will hold himself in readiness to co-operate where his co-operation is a necessary element. If, in violation of this implied covenant on his part, he does something which prevents the happening of the event, the contract becomes absolute and must be performed as though the event had occurred. Marvin v. Rogers, 53 Tex. Civ. App. 423, 115 S. W. 863.

We are of the opinion that the payments under the contract became due upon the sale by the defendants of their stock in the company and the surrendering of their control of the same and we are further of the opinion that the amount of damages found to be due and owing to plaintiff was correctly decided by the trial court.

For the foregoing reasons the judgment of the superior court should be and the same hereby is affirmed.

Judgment affirmed.

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


text:
    Hazel Walsh, Administratrix of the Estate of Mary White, Deceased, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 38,585.

      Opinion filed April 22, 1936.
    Hoyne, O’Connor & Bubinkam, of Chicago, for appellant ; Nathaniel Bubinkam and William S. Allen, of Chicago, of counsel.
    Albert Brilliant, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment of the municipal court, entered on the verdict of a jury, in favor of the plaintiff in the sum of $334, being the principal and interest on three life insurance policies issued to Mary White, since deceased, by The Prudential Insurance Company of America, the defendant in this cause.

Hazel Walsh, administratrix of the estate of Mary White, the deceased, in her statement of claim alleges that three policies of insurance were issued to Mary White, one being for $90 and the other two being for $108, each making an aggregate amount of $306, and all three policies were dated April 18, 1932; that Mary White died on January 25, 1933, and that notice of death was furnished to the insurance company, but that it has failed to pay the amounts as set forth in the policies.

The defendant in its affidavit of merits states that the policies provide that “This policy shall not take effect . . . if on such date the insured be not in sound health”; that the policies did not take effect because Mary White was not in sound health on April 18,1932, the date of said policies.

Defendant’s affidavit further states that the applicant, at the time the said application was made for the said policies stated her age was, at the next birthday 60 years, but that as a matter of fact she was 62 years of age and that the premium that was paid by the said applicant at the age of 62 years would purchase from the said defendant company insurance in the amount of $255, but defendant denies it is indebted to plaintiff for any amount except for the return of the premiums paid, the same being $37.40, which premiums are again tendered in full satisfaction of all claims whatsoever against this defendant.

Plaintiff’s theory of the case is that the policies were issued; that the insured died while they were in force; that since the insured died while the policies were in force, the defendant is liable for the amount of the policies, plus interest.

Defendant’s theory of the case is that since the policies sued upon provide that they shall not take effect if the insured, on the date thereof, is not in sound health; that where the evidence shows the insured was, in fact, not in sound health on the date of the policies but that she was afflicted with cancer on and prior to the date of the policies, no liability is assumed by the defendant company under said policies. It is further contended that the evidence also shows that said policies were obtained by fraudulent misrepresentations of material facts and therefore the plaintiff cannot recover thereunder.

Mary White in making her application for the policies on April 14, 1932, stated that she had never been seriously ill; had no physical or mental defect or infirmity; that she had never suffered from gall stones, disease of the gall bladder, liver or kidneys, or cancer. Three policies were issued as we have already stated, one for $90 and two for $108 each; that each policy contained the following clause:

“This policy shall not take effect if the insured die before the date hereof or if on such date the insured be not in sound health but in either event the premiums paid hereon, if any, shall be returned.”

Mary White entered the Wesley Memorial Hospital on May 8,1932. Dr. McNealy was her attending physician and examined her on May 8,1932 and operated on her on May 9, 1932. He removed the left breast and the structures attached to the breast. The breast he removed was subsequently examined and found to be cancerous. Dr. McNealy said he thought it would take a month for the cancer to form.

Dr. Richardson, an expert witness on behalf of defendant, testified that in his opinion the cancer in Mrs. White’s breast would take eight months to a year or possibly more to form; that the length of time it takes to develop a cancer is very speculative; that the development of cancer depends upon its type and that there are several types; that swellings of the breast are a common occurrence among women; that some swellings are not cancers; that as a rule it is necessary in order to determine whether a certain swelling is a cancer to submit part of the tissue to a microscopic examination.

Dr. McNealy, a witness on behalf of defendant, testified further that he attended Mary White in 1929; that she went into the hospital about August 27, 1929, and was discharged about September 5th; that the sufferings complained of at that time had not to his knowledge any relation to the sickness that she had come to him about as of May 8, 1932; that he had an occasion to examine her in both instances.

Mrs. Daisy McCormick testified that she had known May White for about 15 years; that prior to April 14, 1932, she visited her home three or four times a week; that Mary White did her housework and went to the store every day; that she did her washing and ironing and cleaned her windows and worked very hard; that she saw her a few days before she went to the hospital, but that she never made any complaint to her about her physical condition.

Grace Stamm testified that she is the daughter of Mary White, the insured in this case; that prior to her mother’s death she was living with her; that her mother had insurance on other members of the family which had been in effect 27 years; that the agent for the company came to their house once a week and he was the same agent who collected on the three policies which her mother had taken out and that the same agent had come to their house about 6 or 8 years before the three policies on her mother’s life were issued and that he continued to come" and collect the premiums on these three policies after they were issued; that he received the payments from her mother once a week.

In the case of James v. National Life & Accident Ins. Co., 265 Ill. App. 436, it was held:

“A provision in a life insurance policy that ‘no obligation is assumed by the Company prior to the date hereof, nor unless on said date the insured is ... in sound health,’ merely means that the applicant must not have contracted a disease between the date of the application and the issuance of the policy, and the provision does not apply tó a condition that existed prior to and at the time of the making of the application.”

In Johnson v. Royal Neighbors of America, 253 Ill. 570, it was said:

‘ ‘ The purpose of a by-law of a benefit society requiring a member to be in sound health at the time the certificate was delivered is to protect the society from liability in consequence of a disease contracted by the member between the time of the application and the delivery of the certificate.”

In this case the applications were not attached to the policies and it has been held that in the absence of an express provision that they are warranties, the question in each case is whether the answers made by the applicant were knowingly false. Flenner v. Capital Live Stock Ins. Co., 217 Ill. App. 529, and cases cited.

In the case of Joseph, v. New York Life Ins. Co., 219 Ill. App. 452, at page 466, Mr. Justice O’Connor said:

“From a consideration of the authorities to which we have referred and of many others which we have examined, we think the law is that where it is sought to avoid a policy on the ground that the insured made false answers in his application, the question of the good faith of the applicant in making his answers (in the absence of an express provision that they are warranties) is always a material one. . . .

“While there is some apparent conflict in the language used in the reported opinions, yet we think upon a careful analysis of each case it will be found that there is no real conflict; that the question in each case is whether the answers made by the applicant were knowingly false.”

In the case of Diehl v. Mutual Life Ins. Co., 176 Ill. App. 462, at page 465, the court said:

“Representations in an application for insurance made in good faith, even though untrue will not prevent a recovery. To avail as a defense, the defense must aver and prove the representations in an application for insurance are false and that the applicant knew them to be false at the time he made them.”

In this case the deceased was suffering from an internal malady, a cancer of the breast. Science has not as yet discovered the means by which a lay person is able to diagnose the presence of cancer and, as may be seen from this record, the learned doctors were unable to ascertain whether or not such a condition existed until after they had operated and a portion of the issue was submitted to a microscopic test. No one knows what causes cancer; no one can give any cure, for certain types, except the removal of the affected tissue at the early stages of its growth. To say that a lay person was guilty of and should be held liable for misrepresentation because when answering the questions in the application she did not say that she had a cancer, when, as a matter of fact, it was several weeks later before the doctors discovered that cancer existed, would not be justifiable under the law or in harmony with the common experiences of mankind. After acquired knowledge should not be read into the application. One of the learned doctors while on the witness stand stated that a cancer can develop within a month, whilst the other doctor said it would take 10 months or longer to develop.

We do not believe that the statements of the deceased were such a knowing misrepresentation of the facts as would be sufficient to defeat the claim of the plaintiff.

For the reasons herein given the judgment of the municipal court is hereby affirmed.

Judgment affirmed.

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


author: Mr. Justice Denis E. Sullivan delivered

text:
    John J. Pinta and Anna Pinta, Appellants, v. Joseph Kral et al., Appellees.
    Gen. No. 38,592.

      Opinion filed April 22, 1936.
    Pelnar & Bernard, of Chicago, for appellants.
    Charles A. Churan, of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan delivered

the opinion of the court.

This is an appeal from a judgment of the circuit court entered in favor of the defendants, Joseph Krai, Antonette Krai and Anna Zitney, in a suit in assumpsit commenced by the plaintiffs, John J. Pinta and Anna Pinta. The suit alleged the making of a note by the defendants for the sum of $2,000. Judgment was first entered by confession and on defendants’ motion the judgment was opened with leave to appear and defend. The cause was tried before a jury who found for the defendants.

Plaintiff’s pleadings consisted of a narr and cognovit, alleging the making by the defendants of a note for $2,000, dated September' 4, 1931, payáble to the order of the plaintiffs on demand, with warrant of the attorney to confess judgment for the face of the note.

Plaintiff’s theory of the case is that the note sued upon was executed by the defendants in accordance with the terms of a real estate exchange contract. That the plaintiffs’ right of action to sue on said note was complete as soon as the defendants breached said contract, said breach having been committed by the defendants four days after the contract was signed, when the defendants notified the plaintiffs that they would not go through with the exchange contract. Said note being a part of the exchange contract, it was based upon a good and valuable consideration; that said note was given to fix and limit the amount of damages recoverable in the event of a breach of the contract, and is valid and enforceable.

The defendants’ theory of the case is that there were misrepresentations made as to values and therefore the contract and note were obtained by fraud; that the note was given (if the court should hold that it was properly executed) in the nature of a guarantee or penalty and only actual damages could be recovered; that there was never any delivery of the note and that there was no consideration for said note.

This case was before this court on a former appeal from a judgment entered by the trial court in the sum of $2,182.50 in favor of the plaintiffs and against the defendants. At that time this court reversed the judgment and remanded the cause to the circuit court for a new trial because of the error committed in denying the defendants a jury trial. Pinta v. Kral, 272 Ill. App. 611 (Abst.).

As we have already stated this controversy grows out of a real estate transfer, the contract for which concerning said note provides as follows:

‘‘Each party hereto have executed to each other judgment notes in the sum of $2,000.QQ, which; said notes are to be held as guarantee of faithful performance of this contract by the respective parties.”

It is the further contention of the defendants that the note and contract were obtained by the fraud of plaintiffs’ broker; that defendants did not know that they had signed a note and that the note was never delivered to plaintiffs.

It further appears that the defendants gave plaintiffs notice within three or four days after the contract was signed not to go to any expense in the deal, because they found that they were imposed upon, and that plaintiffs themselves canceled the contract shortly thereafter..

No evidence was offered by the plaintiffs to prove their damages, they relying upon their claim that the note fixed the amount of liquidated damages and it was not necessary for them to offer proof to show what damages they sustained. The trial court was of the opinion that the note was given as a penalty and left the question of damages to the jury. The instructions are not abstracted.

Much evidence was heard as to the circumstances regarding the obtaining of the signing of the contract for the transfer of the property and the value thereof which we think it quite unnecessary in this opinion in view of our construction of the clause providing for the execution of the notes between the purchaser and the seller. Was the sum named in the note the amount of liquidated damages to be paid for nonperformance, or was it a guarantee, which required proof as to the damages sustained? By the language of the contract pertaining to the note, it is not mentioned as liquidated damages but to guarantee performance. What did the parties intend by this section of the contract? Did they intend that if either made a default in the terms of the contract which, in the opinion of the other, was not a “faithful performance,” then without further ado judgment could be confessed on the note and the money paid to the nondefaulting party? Or, was it as it imports by its terms, a guarantee of performance and if either party defaulted causing damage to the other, the damage could be proven and the note guarantee the payment of such damage from one to the other?

In order to arrive at a fair interpretation of these two documents, the real estate contract and the note, they shall be considered together, from which we find the plaintiffs and the defendants engaged in a real estate deal for the transfer of their respective properties and in pursuance of said purpose executed a written contract for the exchange of real estate which was the major purpose of the entire transaction. Both plaintiffs and defendants executed their respective notes for $2,000 each and exchanged them with each other. The only purpose of this exchange of notes, which appears in writing, is that given in the clause of the contract heretofore quoted. After confession of judgment had been entered upon the note and the judgment opened up and defendants permitted to defend, it appears that said defendants had a defense to the real estate transaction, alleging fraud and misrepresentation in the procuring of the signatures to the contract and to the note.

In the case of Giesecke v. Cullerton, 280 Ill. 510, at page 513, the court said:

‘ ‘ This court has said more than once that no branch of the law is involved in more obscurity by contradictory decisions than whether a sum specified in an agreement to secure performance will be treated as liquidated damages or a penalty and that each case must depend upon its own peculiar and attendant circumstances, and that therefore general rules of law on this subject are often of very little practical utility. While the intention of the parties must be taken into consideration, the language of the contract is not conclusive. The courts of this State, as well as in other jurisdictions, lean toward a construction which excludes the idea of liquidated damages and permits the parties to recover only the damages actually sustained. (Advance Amusement Co. v. Franke, 268 Ill. 579; Gobble v. Linder, 76 id. 157; Scofield v. Tompkins, 95 id. 190.) The great weight of authority in this and other jurisdictions is based upon the principle that a stipulated sum will not be allowed as liquidated damages unless it may be fairly allowed as compensation for the breach.”

The general rule of law in this State is to allow compensation for the damages which have been sustained, to be proven by the injured party, rather than construing the sum named in the instrument as being the amount of liquidated and ascertained damages. And where, as in this case, the language of the contract refers to it as a guarantee of performance, leaving it in the mind of the complaining party to determine what is performance, any slight failure upon the part of the other parties would subject them to the penalty of the $2,000, and this could not have been in the minds of the parties at the time they executed these notes and contract. Even where the language of a contract refers to the sum named as liquidated damages, the same does not always control.

As was said in Scofield v. Tompkins, 95 Ill. 190:

“The fact that the parties fix a sum to be paid and call it liquidated damages, does not always control the question as to the measure of the recovery for the breach of the contract. Courts will look to see the nature and purpose of fixing the amount of damages to be paid. And if the clause fixing the amount of the damages appears to have been inserted to secure prompt performance of the agreement, it will be treated as a penalty, and no more than the actual damages proved can be recovered.”

In the instant case the language plainly discloses that it was given as a guarantee for performance and the sum named was a penalty and not a liquidated sum which the parties had determined should be paid regardless of the damages incurred by the breach.

We find that the trial court was correct in its interpretation of this contract and inasmuch as no evidence was offered by the plaintiff as to the amount of actual damages which it sustained, the jury was justified in finding for the defendants and the court was correct in sustaining the said verdict for the defendants and entering judgment for costs against the plaintiffs.

For the reasons heretofore given, we are of the opinion that the judgment of the circuit court should be and the same hereby is affirmed.

Judgment affirmed.

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


author: Mr. Justice Dove

text:
    A. A. Guarnera, Appellant, v. County of Lee et al., Appellees.
    Gen. No. 9,056.

      Opinion filed March 24, 1936.
    Rehearing denied April 28, 1936.
    Mark C. Keller, of Dixon, for appellant.
    Edward A. Jones, State’s Attorney, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On the 16th day of November, 1934, the plaintiff filed his complaint in the circuit court of Lee county, which sought to permanently enjoin the county of Lee and various cities and incorporated villages therein, together with the State’s attorney, sheriff and other law enforcing officers of both the county and the several municipalities from seizing, confiscating, interfering with or preventing the use and operation of certain machines described in the complaint. It was also sought to perpetually restrain the defendants from arresting or causing to be arrested any person who may keep, operate or use any such machine in any saloon, tavern, inn or room in any of the enumerated municipalities. The machines were described in the complaint and it is alleged therein that they were manufactured by the Mills Novelty Company of Chicago and that they were either owned by the plaintiff or leased by him from said company.

Upon the filing of the complaint, a temporary injunction was issued. Thereafter an answer was filed by the several defendants and the cause was referred to a special master in chancery, who took the evidence and found from it that the machines were operated as gambling devices and recommended that the preliminary injunction be dissolved and that the complaint be dismissed for want of equity. Upon a hearing before the chancellor, exceptions to the report of the special master were overruled and a decree was entered dissolving the temporary injunction and dismissing the, complaint for want of equity. It is to reverse this decree that the record is brought to this court for review.

Counsel for appellant insist that the evidence discloses that the machines described in the complaint are not gambling devices but are designed and intended solely for the vending of packages of mints and other confections and that the deposit of a nickel coin in the machine invariably yielded up to the purchaser a five-cent package of mints and that while at intervals the machine also yielded up from two to twenty metal tokens, still these metal tokens when used in the machine did not cause any mints to be released, and if these metal tokens had any redeemable or trade value, such use of them ivas clearly against the intent of the plaintiff and against his will.

We have read the evidence in this record. It discloses that these machines are manufactured by the Mills Novelty Company of Chicago and are identical Avith the machines considered by this court in the case of Harder v. County of Ogle, 281 Ill. App. 613. That case is unreported, but the opinion therein was filed in this court on July 6, 1935. We there held that these' machines were clearly gambling devices and quoted at length from the case of Almy Mfg. Co. v. The City of Chicago, 202 Ill. App. 240.

In the instant case the evidence discloses that the owners or operators of the restaurants, saloons, taverns and other places where these machines were placed redeemed the tokens thrown out by the machine and that the value of each token was five cents in trade. In some of the places where the machines were placed, the oAvners or operators of the places redeemed the tokens in cash. The evidence further discloses that the machines can be operated by depositing the tokens therein and when so operated the machine would not yield, mints but would,* at intervals, yield tokens. It would only yield mints when operated with a nickel coin. All of the evidence convinces us that these machines are wholly machines of chance. There is no skill essential to win when playing one of these machines. All that is necessary is to be able to deposit a coin and pull the lever. The result, is left to the mechanism of the machine and to chance. After the lever is pulled, the mechanism of the machine determines whether the player shall be rewarded with a package of one cent mints for his nickel or whether he shall receive numerous tokens which will be redeemed either in trade or in cash. It is apparent that the intention of the manufacturer was to evade the gambling laws of this State. The fact that the machines pay out tokens instead of cash does not make them less a gambling device. Wherever these machines are played, the evidence discloses that the earnings to the operator or lessee are substantial. This money, of course, comes from the pockets of those who are lured by the operation of the machine. As said in Almy Mfg. Co. v. City of Chicago, supra, the purpose of these machines was to stimulate the gambling propensity, the very propensity the legislature sought to repress. The element of chance is the soul of the transaction. The person who operates the machine hopes by chance to get something for nothing. The person in whose saloon or tavern the machine is placed hopes chance will save him from giving something for nothing. Each is pecuniarily interested adverse to the other in a result to be determined solely by chance. “It is a gamble” which will win, and we have no doubt the transaction is gambling in the statutory sense of the word.

The chancellor, upon the hearing, very properly dissolved the temporary injunction which had been improvidently granted and dismissed the bill for want of equity. The decree of the lower court is affirmed.

Decree affirmed.


text:
    Paul Thieme, Appellee, v. John D. MacArthur, Appellant.
    Gen. No. 9,035.

      Opinion filed April 3, 1936.
    Rehearing denied and opinion modified May 5, 1936.
    Arthur L. Paulson, of Elgin, for appellant.
    B. J. Knight and J. E. Goembel, both of Rockford, for appellee; Perley T. Lupton, of Decatur, of counsel.
   Mr. Justice Dove

delivered the opinion of the court. This is a suit brought against the Marquette Life Insurance Company, Harry Getzelman and John D. MaeArthur to recover damages for malicious prosecution. The complaint charged that on June 16, 1933, MaeArthur and the insurance company caused Getzelman to appear before a justice of the peace of Kane county and file a complaint charging the plaintiff with having obtained money from Getzelman by virtue of the confidence game by conspiracy; that Getzelman was aided, abetted and persuaded in so doing by the other defendants; that they all acted falsely, maliciously and without any reasonable or probable cause and that as a result thereof a warrant was issued and the plaintiff was arrested and imprisoned for 36 hours. The complaint then charged that he, the plaintiff, suffered anguish and pain in body and mind and injury to his credit and reputation and that he expended $500 in procuring his discharge from said imprisonment. It was then alleged that the cause in the justice court was continued from time to time and was finally terminated, having been dismissed on September 8, 1933, for lack of sufficient evidence.

The answer filed on behalf of all the defendants denied the allegations of the complaint and averred that Getzelman made a full and complete disclosure of all the facts to the State’s attorney of Kane county, and upon his advice and without the aid and persuasion of MacArthur and without malice, Getzelman made the complaint upon which the warrant for plaintiff’s arrest issued. A jury was waived and the issues made by the pleadings were submitted to the court for determination. During the progress of the trial the suit was dismissed by the plaintiff as to the insurance company and Getzelman and the cause proceeded against MacArthur, resulting in a judgment against him for $2,750 and the record is in this court for review.

In Glenn v. Lawrence, 280 Ill. 581, the law on the subject of malicious prosecution was summed up as follows:

‘ ‘ The facts which will sustain an action for malicious prosecution are (1) The commencement or continuance of an original, criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming* to legal standards resulting to the plaintiff.”

In the instant case it is insisted by appellant that the evidence discloses (1) that he was not responsible for the criminal proceeding, (2) that there was not a bona fide termination of that proceeding but that it was dismissed in the justice court as the result of an agreement between counsel for appellee and'the State’s attorney, (3) that appellant was not actuated by malice, (4) that there was probable cause for the commencement of the criminal action, (5) that the advice of the State’s attorney was followed after a complete disclosure of all the facts and finally (6) that the judgment is excessive.

The evidence discloses that appellant is the vice president of the Marquette Life Insurance Company and appellee and one John Perry are former agents and employees of said company. In August, 1932, Perry successfully solicited Getzelman, who is a farmer living in Kane county, to become a policyholder in said company and the company issued to him seven policies, one each upon the life of himself, his wife and their five children. The total initial premiums upon these five policies aggregated $204.90 and for this amount Getzelman executed his note dated August 2, 1932, to the company and gave it to Perry. This note became due, according to its terms, 60 days after date. At the same time the note was executed, Getzelman gave Perry his check for $30 and this amount was indorsed on the note. Appellee was not present and had nothing whatever to do with procuring Getzelman to become a policyholder in the company and knew nothing about the policies having been written until he was told about it at the Chicago office of the company by MaeArthur. Appellee at that time was in the employ of the company and had been since March, 1932. On September 16, 1932, Perry was discharged by the company but was re-employed by the company a short time later hut did not remain in the employ of the company very long, but was again discharged. Appellee was directed by appellant, acting for the company, to look into the business which Perry had written and Getzelman was one of the policyholders appellee was directed to see. Appellee called upon Getzelman at his home, and on January 12, 1933, went with him to' Chicago, their purpose being to obtain the return premium on a policy of Getzelman in another company, which had been canceled and apply that return premium upon the note of Getzelman to the Marquette Life Insurance Company. A call was made at the office of the other insurance company and Getzelman and appellee were informed that the money would be ready for payment by February 15, 1933. According to Getzelman’s testimony appellee told him, on January 12, 1933, that Perry was back working for the company and that it would be all right to pay his note, which the company held, to Perry. Getzelman further testified that Perry, accompanied by appellee, was at his, Getzelman’s, home in February, March and also in April, 1933. Appellee denied that he told Getzelman, in January, 1933, that Perry was again in the employ of the company and denied that he told Getzelman that it would be all right to pay him the note and stated that he did not remember whether he and Perry called at Getzelman’s home in February, March or April, 1933, but testified positively that he had no dealings with Perry after October 9, 1932. On May 31, 1933, Perry, not accompanied by appellee, drove to Getzelman’s home and requested Getzelman to pay the note. Getzelman had his wife draw a check upon his account for $179.40, making the same payable to the order of Perry, and this check was delivered to Perry by Getzelman. Perry promptly cashed the check, appropriated the proceeds and disappeared. On June 16, 1933, appellant called upon Getzelman and asked him about paying the company the note and was informed by Getzelman that it had been paid to Perry and Getzelman exhibited to appellant his check of May 31, 1933, which had been delivered to Perry. In reply to appellant’s request as to why he had paid Perry when the company had instructed him not to do so, Getzelman testified that he said it was because appellee had said it would be all right to do so and he, Getzelman, then told appellant of the visits of Perry and appellee to his home. Getzelman then asked appellant why the note was not returned to him and appellant advised him that the company had not received the money from Perry and that the company would have to look to Getzelman for the money due thereon. Getzelman further testified that he then inquired of appellant what he should do and appellant said he, Getzelman, would have to get a warrant out for appellee or pay the note and appellant suggested seeing Mr. Carbary, the State’s attorney, about procuring the warrant. Appellant then drove Getzelman to Elgin and accompanied him to the office of Mr. Carbary.

The evidence is conflicting as to what occurred at the office of the State’s attorney. All agree that appellant did practically all the talking; Getzelman said but little. Appellant testified that he told Mr. Carbary that his only source of information was Getzelman and that he, appellant, told the State’s attorney what Getzelman had told him and that he made no misrepresentations. Mr. Carbary, the State’s attorney, testified that he was told by appellant that Perry and appellee had been to Getzelman’s farm on different occasions and were together at the time Getzelman paid his note to the company by delivering to Perry his check on May 31, 1933; that this check for $179.40 was shown to him and he was told that Perry and appellee had conspired to obtain the money represented by that check from Getzelman by means of the confidence game; that he was also told that Perry and appellee had been employed by the company but that some time previous to that time they had both been discharged, were not agents of the company and had no authority to collect the money; that appellant said appellee had been discharged by the company three or four months before and that he was a rascal, Mr, Carbary further testified that had he known that appellee had nothing to do with Perry in securing the check from. Cetzelman, he would not have authorized the issuance of the warrant; that he, Carbary, knew none of the parties involved and knew nothing of the facts except what he learned from appellant and Cetzelman and that he didn’t think Cetzelman said “over a line” all the time they were in his office. Cetzelman testified that appellant told the State’s attorney that the statements he was making were those gotten from Cetzelman that morning and that all appellant knew was what Cetzelman had told him find that appellant did not say that appellee and Perry were both at Cetzelman’s farm when the check was given.

A. J. Strickman, the justice of the peace, testified that before issuing the warrant, appellant and Cetzelman came to his office directly from the office of the State’s attorney and that appellant told him, Strickman, that appellee and Perry had formerly been employed by the insurance company, but that both had been discharged; that although they were not authorized to make collections for the company, still they had gone to Cetzelman’s home and he, Cetzelman, had paid to appellee and Perry $179.40. He further testified that he issued the warrant for appellee’s arrest upon the recommendation of the State’s attorney. The evidence further discloses that upon the issuance of the warrant, it was given to the chief of police of Elgin to serve and he immediately wired the chief of police of Bockford advising him of the fact that he had the warrant and of the nature of the charge therein and requested him to arrest and hold appellee. This was done and appellee was placed in the city jail of Bock-ford and later removed to the jail at Elgin, where he was detained overnight and on the following day was released on his own recognizance. A reading of the foregoing, which is a fair résumé of the evidence in this record, is sufficient to disclose that there is no merit in appellant’s contention that he was not the legal causation of the criminal proceeding. It is true that Getzelman signed the complaint before the justice of the peace, but the evidence is that appellant suggested to Getzelman that they go to the State’s attorney’s office and procure a warrant for appellee’s arrest and it was appellant who drove Getzelman to Elgin and accompanied him to the office of the State’s attorney. It was appellant who did practically all of the talking when they got there. It was appellant who led the State’s attorney to believe that appellee and Perry were not in the employ of the insurance company when Getzelman delivered his check for the payment of his note, and it was appellant’s statements upon which the State’s attorney relied when he authorized the warrant to be issued. From all the evidence and all the facts and circumstances in evidence, it is clear that the trial court was justified in finding that appellant was the legal causation of the criminal proceeding. Nor is there any merit in appellant’s contention that the criminal proceeding was terminated by agreement of counsel for appellee and the State’s attorney. The record of the justice of the peace discloses that upon the hearing, after Getzelman had testified, the State’s attorney stated to the justice that in the absence of appellant he was afraid the People would not be able to make a showing of conspiracy between appellee and Perry, and that if counsel for appellee desired to make a motion to dismiss the conspiracy case, he would not oppose it. Thereupon counsel for appellee moved the court to dismiss the case for lack of sufficient evidence. The court allowed this motion and stated: “I will dismiss the case of People v. Paul Thieme and John Perry for lack of sufficient evidence” and entered in his docket the following order: “On motion of B. J. Knight, attorney for Paul Thieme and John Perry, defendants, cases dismissed for lack of sufficient evidence.”

It is next insisted that-there was probable cause for the commencement of the criminal action and that the evidence discloses appellant was not actuated by malice. Appellant testified that he had no knowledge concerning the matters which transpired between Getzelman and Perry except the information given him by Getzelman, and Getzelman denies telling appellant that appellee was present when he delivered to Perry his check. If appellant only knew what Getzelman testified he told him, then the only information appellant had when he went to the office of the State’s attorney and made to him the statements testified to by Mr. Carbary was that appellee and Perry had been to the Getzelman farm together on occasions and that appellee had said Perry was in the employ of the company and that it would be all right to pay him. These alone would not justify Getzelman or appellant in filing the criminal complaint against appellee. The trial court expressly found that appellant acted maliciously and inasmuch as the evidence tends to prove that appellant falsely told the State’s attorney that appellee was with Perry when Getzelman delivered to Perry the check, that appellant told the State’s attorney that appellee was not in the employ of the insurance company when as a matter of fact he was at that time in the employ of the company and that he told the State’s attorney that appellee was a rascal, we are, from a consideration of all the evidence in this record, unable to say that the trial court’s findings were not justified. The law is well settled that malice will not be inferred where probable cause exists; still, where there is an entire lack of probable cause, malice may be presumed to have been the motive actuating the prosecution. Most v. Case-Moody Pie Corp., 279 Ill. App. 628 (Abst.); Roy v. Goings, 112 Ill. 656; Cripe v. Pevely Dairy Co., 275 Ill. App. 231.

It is conceded that advice of counsel is always a good defense to a proceeding of this character when a full and complete disclosure of all the facts is made to a lawyer of good standing and such advice is acted upon in good faith. If the testimony of Mr. Carbary is true, a full and complete disclosure of all the facts were not made by appellant to him, and if he made to the State’s attorney the false statements herein referred to, it cannot be said that appellant acted in good faith. In Most v. Case-Moody Pie Corp., supra, the court said: “The courts of this State have always been vigilant in this class of cases in guarding against the danger that the jury may regard the acquittal of the plaintiff upon a criminal charge as justifying the inference that the prosecution was wrongfully begun. The record of acquittal is admissible only for the purpose of showing the determination of the proceeding. It has no bearing upon the question of want of probable cause or of evidence of malice. In a criminal case the burden of proof is upon the State to establish guilt beyond a reasonable doubt. In a suit for malicious prosecution the burden is upon plaintiff to prove by a preponderance of the evidence the absence of probable cause and the presence of malice. In Collins v. Hayte, 50 Ill. 353, Chief Justice Breese said: ‘Our experience teaches us there are few questions of law more difficult of comprehension, by a jury, than those which govern trials for malicious prosecutions. It seems difficult for them to appreciate, if the plaintiff was really innocent of the charge for which he was prosecuted, that he still ought not to recover. They do not readily comprehend why an innocent man may be prosecuted for a supposed crime or offence, and yet have no recourse against the prosecutor who caused his arrest and imprisonment, and yet the preservation of the peace and order of society require, that even innocent men may be compelled to submit to great inconvenience and hardship, rather than citizens should be deterred from instituting prosecutions where there is reasonable or probable grounds to believe in the existence of guilt.’ ... In Thomas v. Muehlmann, 92 Ill. App. 571, this court said: ‘The decisions of the courts incline toward an encouragement of criminal prosecutions when they are instituted in good faith, without malice, and for the purpose of punshing violators of the law, and for that "reason suits for malicious prosecution are not favored and have been critically examined. Reynolds v. Kennedy, 1 Wilson, 232; McBean v. Ritchie, 18 Ill. 114; Hurd v. Shaw, 20 Ill. 354; Israel case, supra; Barrett v. Spaids, 70 Ill. 408; Angelo v. Faul, 85 Ill. 106.’ ... In Chicago, R. I. & P. Ry. Co. v. Pierce, 98 Ill. App. 368, this court said: ‘The citizen who in good faith and" without malice, under circumstances strongly tending to show guilt, institutes a criminal prosecution, should not be cast in damages because afterward upon a full investigation the suspicious circumstances are explained, and the innocence of the party accused made apparent. (Jacks v. Stimpson, 13 Ill. 701; Collins v. Hayte, 50 Ill. 353; Angelo v. Faul, 85 Ill. 106.) The courts incline to the encouragement of criminal prosecutions, when instituted in good faith, without malice, and for the purpose of punishing violators of the law, and for that reason suits for malicious prosecution are not favored.’ ”

This court is in full accord with the principles of law enunciated in the several quotations taken from cases cited by the court in the opinion in the Most case, but in the instant case what was said in the Collins case about the difficulty a jury has in comprehending why an innocent man may be prosecuted for a supposed crime and yet have no recourse against the prosecutor is not applicable because here a jury was waived and the cause tried by a learned and experienced trial judge. There is evidence in the record which justified the finding that appellant’s motive in causing the criminal proceeding to be instituted was not entirely the protection of the interests of his company or the proper enforcement of the criminal law. If his motive was to collect Getzelman’s note from appellee, his conduct is inexcusable. Appellant knew that appellee was, at the time the warrant was issued, an employee of the same company of which appellant was vice president and if all the information he had came from Getzelman and if Getzelman told him what he testified he did, then when appellant advised Getzelman to go to the office of the State’s attorney and get a warrant for appellee’s arrest, he did so because, as we have said, Getzelman had told him that Perry and appellee had been to Getzelman’s home on occasions other than the one when Getzelman paid Perry the money and that appellee had, upon one of these occasions, said it would be all right for Getzelman to pay Perry. This information did not warrant appellant’s conduct and while the evidence is conflicting as to just what appellant did say to the State’s attorney, we are not prepared to hold that the findings of the trial court to the effect that a fair disclosure of the facts was not made by appellant to the State’s attorney and that there was not probable cause for the institution of the criminal action and that appellant was not prompted by proper motives but was actuated by malice, are manifestly against the weight of the evidence, but in our opinion these findings of the trial court, are supported by the testimony in this record.

In the absence of proof of malice, appellee would only be entitled to recover compensatory damages. Hanneman v. Minneapolis, St. P. & S. S. M. Ry. Co., 248 Ill. App. 196. These were shown to be $375 attorney fees expended by appellee in defense of the criminal proceeding and while there is also some evidence that following his arrest appellee was unable to procure work, the evidence does not show that this may not have been due to the prevalent economic condition of the country, rather than to the fact that appellee had been charged with the commission of a criminal offense by appellant. As stated, the evidence in this record, in our opinion, warranted the finding’ that the conduct complained of was maliciously done, and if so, under the authorities, appellee was entitled to recover a substantial sum as vindictive damag’e or smart money in addition to compensatory damages. The evidence is that appellee was 53 years of age at the time of the trial. He was born in Germany and came to America in 1910, well educated in insurance and banking’ law and he had been employed by various bardes, newspapers and insurance companies. For several years he was manager of the Foreign Exchange Department of the First National Bank of St. Louis, receiving for his services $350 per month. He had never committed any crime and had never been arrested before this unfortunate occurrence. From an examination of all the evidence and the facts and circumstances appearing in this record, we are not inclined to substitute our judgment upon the question of damages for that of the trial court.

We find the record free from reversible error and therefore the judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice

text:
    Walter R. Crowder, Executor of the Last Will and Testament of Joseph Dedman, Deceased, Appellee, v. Frank Nuttall et al., Appellants.
    Gen. No. 8,930.

      Opinion filed April 17, 1936.
    Ward & Pugh, of Shelbyville, for appellants; Philip L. Turner, of Shelbyville, of counsel.
    Thompson, White & Ingram, of Sullivan, for appellee.
   Mr. Presiding Justice

Davis delivered the opinion of the court.

Walter R. Crowder, executor of the last will and testament of Joseph Dedman, deceased, appellee, filed his bill in the circuit court of Moultrie county, Illinois, on September 16, 1932, making Frank Nuttall et al., appellants, parties defendant.

The bill was one in aid of an execution in which it was charged that appellee recovered a judgment in the circuit court of Moultrie county for the sum of $578.96 on September 16, 1932, against Frank Nuttall et al.; that previous to the time of the rendition of said judgment said defendant, Frank Nuttall, was the owner of certain described real estate; that on September 16, 1932, said judgment was in full force and effect and an execution was caused to be issued for the purpose of obtaining satisfaction thereof and was delivered to the sheriff of said county; that prior to the rendition of said judgment but after the indebtedness upon which the same was rendered had accrued, to wit, on February 12,1932, said Frank Nuttall and his wife, Clara, made a pretended conveyance of said real estate to said Clara B. Nuttall, his wife, for a pretended consideration of $800, and that, prior to the rendition of said judgment and after the indebtedness upon which the judgment was rendered, the defendants, Clara Nut-tall and Frank Nuttall, made a further pretended conveyance to Ralph A. Nuttall, a son of said Frank Nuttall.

That neither of said conveyances were real or bona fide, but both were mere shams and made with the intention of defrauding appellee and the other creditors of said Frank Nuttall; .that no consideration was paid and said deeds of conveyance were never legally delivered and said described premises are now held by said Ralph A. Nuttall in trust for the said Frank Nut-tall and for the purpose of preventing a levy and sale of the same by virtue of said execution.

The bill of complaint contains a prayer that said conveyance be set aside and that complainant may be authorized to proceed upon his writ of execution, and that the sheriff be authorized to proceed to levy upon, ádvertise and sell said premises for the satisfaction of complainant’s judgment, interest and costs.

After the filing of the bill it was suggested that Frank Nuttall had been adjudged a bankrupt by the United States District Court for the Eastern District of Illinois, and thereupon Max M. Adelman, trustee in bankruptcy, was permitted to file an intervening petition wherein it was alleged the judgment of appellee was obtained within four months prior to the adjudication in bankruptcy of said-Frank Nuttall, and at a time when he was insolvent, and that any money obtained by appellee through an order granting relief by virtue of said judgment would give to said appellee a preference over the general creditors of said bankrupt’s estate, and that any order finding that the deeds to any real estate formerly owned by Frank Nuttall should be transferred back to said Frank Nuttall should and ought to substitute for the said Frank Nuttall the name of petitioner who is trustee in bankruptcy for all assets of Frank Nuttall.

Said petitioner prayed judgment if said property of Frank Nuttall, Clara B. Nuttall and Ralph A. Nuttall ought to be decreed to the petitioner as trustee in bankruptcy of the said Frank Nuttall.

Defendants answered said complaint and denied that any pretended conveyance was made from Frank Nut-tall to Clara Nuttall, his wife; and denied that a further pretended conveyance was made by Clara B. Nut-tall and Frank Nuttall to Ralph A. Nuttall; and denied the charges contained in section 6 of the bill, wherein it is charged that neither of said conveyances were real and bona fide and that both were made to defraud appellee and the other creditors of Frank Nuttall, and denied that said deeds were never legally delivered and that said premises were held by Ralph A. Nuttall for the use and benefit of Frank Nuttall, and for the purpose of preventing a levy and sale of the same.

Defendants denied the allegations contained in section 7, wherein it is charged that Frank Nuttall has no personal property or other real estate liable to levy and sale.

The cause came on for trial before the court and a decree was entered declaring said conveyance to be null and void and of no effect and vacating and setting the same aside, and adjudging the property to be the property of appellee, Walter R. Crowder, executor.

The bill filed by appellee is a bill in aid of an execution and is not a creditor’s bill whereby the creditor seeks to satisfy his judgment out of some equitable estate of the defendant, which is not liable to levy and sale under an execution at law. Its only purpose was to remove an alleged fraudulent conveyance out of the way of an execution.

The relief afforded by a bill in aid of an execution is of a different character from that afforded by a creditor’s bill. Under the former the only relief granted is to set aside incumbrances or conveyances therein specified as fraudulent. Rice Co. v. McJohn, 244 Ill. 264. No facts are properly in issue unless charged in the bill, and no relief can be granted for matters not charged. The averments of a bill and the decree must correspond. It is fundamental that a party must stand or fall by the case made by his bill, and in order to recover he must not only" aver facts from which a recovery can be had but he must also prove such facts by a preponderance of the evidence. Rice Co. v. McJohn, supra.

It is alleged that on September 16, 1932, appellee recovered a judgment against Frank Nuttall; that previous to the time of the rendition of "the judgment but after the indebtedness upon which the same was rendered had accrued, to wit, on February 12, 1932, the defendant conveyed the premises in question.

On the trial of said cause the defendants, Frank Nuttall, Clara B. Nuttall and Ralph A. Nuttall, were called as witnesses by appellee, Walter R. Crowder, executor.

Prior to the adoption of the Civil Practice Act, if a plaintiff or defendant called a witness to the stand and examined him he vouched for his truthfulness and was bound by his testimony. Under the provisions of section 60 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, 188, the rule is somewhat different. Any party to the suit may be examined as if under cross-examination at the instance of the adverse party, but the party calling for such examination will not be concluded thereby but may rebut the testimony thus given by counter testimony.

The testimony of a party thus examined at the instance of the adverse party is not to be discredited by the fact that his testimony may be rebutted by the party calling him, but in considering his testimony the same test must be applied as is applied to the other witnesses in the case.

No attempt was made to rebut the testimony of either of these witnesses, except a Mr. Scott was called to testify as to a property statement that was made by Frank Nuttall on August 20,1931.

During the examination of appellee by his solicitor, plaintiff’s Exhibit A was offered and admitted in evidence and purported to be an assignment of the interest of the trustee in bankruptcy in the pending cause of action executed by said trustee, and ran to Walter It. Crowder, and which had been previously offered in evidence and excluded because the suit was pending in the name of Walter R. Crowder, executor; and when re-offered, on the same day, and admitted in evidence, an assignment from Walter R. Crowder to Walter R. Crowder, executor, appeared on said exhibit.

For the consideration of $50 Max M. Adelman, trustee in bankruptcy of the estate of Frank Nuttall, bankrupt, assigned all his interest as trustee in bankruptcy in said cause of action and authorized Walter R. Crowder to prosecute said suit and recover the money due for sale of lands or under execution issued out of the circuit court of Moultrie county.

Under section 70 of the Bankruptcy Act, the trustee upon his appointment and qualification is vested with all of the property of a bankrupt, except that which is exempt, and is given authority to avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred. For the purpose of such recovery any court of bankruptcy, as defined in the act, and any State court which would have jurisdiction if bankruptcy had not intervened has .concurrent jurisdiction.

When the trustee in bankruptcy intervened in said suit he stood in the same position as the complainant, and his right of recovery was limited by the scope of the bill filed by complainant and to the relief sought in said original bill, to wit: that the complainant be authorized to proceed upon his writ of execution, issued as aforesaid, or issue other writs thereon as it may be deemed necessary; that the sheriff of said county thereupon be directed to proceed to levy upon, advertise and sell said premises for the payment and satisfaction of said judgment, interest and costs.

The burden of proof was upon appellee; yet we are unable to find in the record any evidence of any such judgment or any evidence that the defendant, Frank Nuttall, was indebted to the appellee in any amount prior to the conveyances complained of, or any conveyance of date February 12, 1932, made by Frank Nut-tall and Clara B. Nuttall to Clara B. Nuttall. These were material allegations, and no recovery could be had unless such allegations were proven.

The decree entered by the court declared null and void the conveyances complained of and set the same aside; and also decreed that said real estate be and the same was adjudged to be the property of the plaintiff, Walter R. Crowder, executor.

The court was without authority, under the bill filed or the prayer thereof and. under the proof, to enter any decree vesting title to the property in question in the complainant. We have not passed upon the question as to whether the facts alleged and proven were sufficient to warrant the court in finding that the conveyances were made with the intent of defrauding the complainant and other creditors of said Frank Nuttall, and we deem it unnecessary to do so in view of the fact that the decree and judgment of the circuit court must be reversed and the cause remanded because of a lack of proof of the material allegations of the bill heretofore pointed out.

The decree of the circuit court of Moultrie county is therefore reversed and said cause remanded.

Reversed and remamded.


author: Mr. Presiding Justice Davis

text:
    George Fisher, Administrator of the Estate of Blanch Hopson Fisher, Deceased, Appellant, v. Russell Wittler, Appellee.
    Gen. No. 8,936.

      Opinion filed April 17, 1936.
    Wilson & Schmiedeskamp, of Quincy, for appellant.
    Lancaster & Nichols, of Quincy, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.

This suit was commenced in the circuit court of Adams county to recover damages occasioned by the death of Blanch Hopson Fisher, plaintiff’s intestate, alleged to have been caused by the negligent conduct of the defendant, Bussell Wittier.

Upon a trial of said cause the jury returned a verdict of not guilty, and the court after denying a motion for a new trial entered judgment upon the verdict in bar of the action. Appellant perfected an appeal to this court, and the cause was submitted at the October, 1935, term.

Owing to a misprision of the clerk of the circuit court in writing the record in said case, no final judgment was entered, and this court being without jurisdiction to hear and determine the matters involved in said appeal, on November 16, 1935, in vacation after said October term, entered an order dismissing said appeal.

On November 29, 1935, appellant filed his motion with suggestions in support thereof, praying this court to vacate and set aside its order dismissing the appeal entered on November 16, 1935, and to reinstate said cause, and to permit appellant to suggest a diminution of the record and to file in this court as of July 2,1935, the date of the filing of the original transcript of the record in this court, an amended and supplemental transcript of the record of the proceedings in said cause in the circuit court of Adams county, had on November 23, 1935, duly certified by the clerk of said court, including the order entered by said court on that day amending its judgment entered on January 21, 1935, nunc pro tunc as of said day, and the notice given and showing made for said amendment, and the said judgment of January 21,1935, as amended, and also an abstract of said amended and supplemental transcript of record and that this court hear said cause upon the merits.

Appellant also filed a petition for a rehearing of said cause on December 2, 1935, containing the same prayer for relief as prayed for in said motion. Said petition for rehearing and motion came on for hearing and no objections having been filed to the granting of said motion, and the court having found that a transcript of the record in said cause duly certified under the hand of the clerk and the seal of said court was filed in this court on July 2, 1935, that although an order of dismissal of said appeal was entered in said cause on November 16,1935, the court had jurisdiction of said cause, that the circuit court of Adams county, upon due notice to appellee, amended said judgment of said court entered on January 21, 1935, and that said petition for rehearing and motion should be granted, an order was entered granting said petition for rehearing and motion and reinstating said cause and permitting an amended and supplemental transcript of record to be filed nunc pro tunc as of date July 2, 1935, with an abstract thereof and ordering that said cause be taken for decision upon its merits in accordance with the order of submission entered at the October term, 1935, of this court.

Plaintiff in his complaint alleges that the defendant was driving an automobile in a northerly and northeasterly direction over a public highway in Adams county, Illinois, known as Route Number 36, on which was a hard or concrete road 18 feet in width, at a point about four miles northeast of the City of Hendon, in said county, and that plaintiff was driving an automobile in the same direction ahead of and in front of said automobile driven by defendant, and in said automobile, driven by plaintiff, Blanch Hopson Fisher was riding as a passenger.

That while plaintiff and his intestate, Blanch Hopson Fisher, were riding in plaintiff’s automobile with due care and caution for the safety of plaintiff’s intestate defendant drove his automobile violently against and collided with the rear of said automobile in which plaintiff and his said intestate were riding, and pláintiff’s automobile was thereby upset and turned over and caught fire, and injuries were inflicted upon 'plaintiff’s intestate from which she died on September 1, 1934, within one year from the commencement of this suit.

The negligent acts charged against defendant were:

(a) A charge of general negligence.

(b) That defendant negligently failed to keep or exercise a proper watch or lookout.

(c) That the defendant negligently and carelessly drove his said automobile at a speed greater than was then and there proper having regard to the traffic and the use of the way, and contrary to the statutes of the State of Illinois.

(d) That the defendant carelessly and negligently drove his said automobile upon said highway at a speed exceeding 45 miles per hour and at, to wit, 60 miles per hour, and contrary to the statutes of the State of Illinois.

It is further alleged in the complaint that the said Blanch Hopson Fisher left surviving* her, the plaintiff, her husband, and no child or children, or any descendant or descendants of any deceased child or children.

That at all times mentioned plaintiff and plaintiff’s intestate were free from any negligence contributing to her injury or death.

The defendant answered denying that the plaintiff exercised due care and caution for the safety of said Blanch Hopson Fisher, and denied that Blanch Hopson Fisher was in the exercise of due care and caution for her own safety; and charged that they were guilty of negligence which was the proximate cause of said accident ; that the automobile driven by plaintiff, in which intestate was riding, did not exhibit any light lamp so situated as to throw a red light visible in the reverse direction from which said automobile was proceeding; denied that defendant drove his automobile violently against and collided with the rear end of said Fisher automobile; denied each and all the allegations in paragraph 3, subsections “a,” “b,” “c” and “d” of the complaint.

The plaintiff replied denying that Blanch Hopson Fisher and the plaintiff were guilty of negligence which was the proximate cause of the accident, and denied that the automobile, which was driven by plaintiff and in which plaintiff’s intestate was riding, did not exhibit any lighted lamp so situate as to throw a red light visible in the reverse direction from which said automobile was proceeding.

At the close of plaintiff’s evidence the defendant made a motion ip "writing, as follows: “The defendant, Bussell Wittier, by Lancaster & Nichols, his attorneys, at the close of the plaintiff’s evidence moves court to instruct the jury to find the issues for the defendant.”

The court, after hearing said motion, ordered that said motion be sustained as to the third and fourth counts, counts “c” and “d” of the complaint, and overruled said motion as to the first and second, counts “a” and “b” of the complaint. The'record shows that the hearing on this motion and the ruling thereon by the court was out of the presence of the jury. No instruction was given the jurors at that time, either orally or in writing, informing them that no recovery could be had upon said counts 3 and 4 of the complaint.

At the close of all the evidence the defendant made the following motion in writing: “The defendant, Bussell Wittier, by Lancaster & Nichols, his attorneys, at the close of all the evidence moves the court to instruct the jury to find the issues for the' defendant,” which motion was refused by the court. <

Over the specific objection of the plaintiff the court gave to the jury the following instruction: ‘ ‘ The court instructs the jury that there is no legal evidence to support these two charges that the defendant drove his automobile at a greater rate of speed than was allowed by the Statutes of the State of Illinois, and in considering your verdict you will disregard any evidence in regard to those two charges in the declaration,” which was given to the jury with a series of other instructions submitting the case to the jury upon the facts.

The jury returned a verdict finding the defendant not guilty and, after overruling a motion for a new, trial, the court entered a judgment for defendant and in bar of the action.

Among the errors relied upon by plaintiff for a reversal of said judgment are: The court erred in sustaining defendant’s motion for-a directed vérdict as to charge “c” of negligence in the complaint. The court erred in giving to the jury the above instruction. --'

When a motion is made at the close of plaintiff’s evidence to exclude the evidence and to instruct the jury to return a verdict finding the issues for the defendant for the reason that said evidence is insufficient in law to support the cause of action set out in the complaint, and thus present the question of law to the court, whether or not there is any evidence in the record which, if accepted as true, fairly tends to support the plaintiff’s cause of action, it must be accompanied by a written instruction conforming to the motion, and if the court sustains the motion, the instruction should be given to the jury, and it is too late to submit an instruction to find for the defendant with a series of other instructions submitting the case to the jury upon the facts. Chicago Great Western Ry. Co. v. Mohan, 187 Ill. 281; Peirce v. Walters, 164 Ill. 560; Central Ry. Co. v. Knowles, 191 Ill. 241; Ewen v. Wilbor, 208 Ill. 492.

Section 68 of the Civil Practice Act, ch. 110, ff 196 (3) a, Ill. State Bar Stats. 1935, which authorizes the trial court to reserve its decision on a motion for a directed verdict at the close of the testimony until after verdict, in no way alters the rule of law which requires the court, on motion made at close of plaintiff’s evidence, to direct a verdict in favor of the defendant when the plaintiff has failed to prove the allegations of the complaint and not reserve its decision until after verdict. Herbst v. Levy, 279 Ill. App. 353.

If there is no evidence tending to support a particular count of the complaint, the defendant, if he wishes to be in a position to take advantage of that fact, should present to the court a written instruction that there can be no recovery upon such count, with a request that the same be given to the jury. Kennedy v. Aetna Life Ins. Co., 242 Ill. 396; Pittman v. Chicago & E. I. R. Co., 231 Ill. 581.

The record disclosed that at the close of the plaintiff’s evidence the defendant made a motion for a directeci. verdict in Ms favor, wMch was heard by the court out of the presence of the jury, and the court after hearing the motion sustained it as to two of the four counts or charges of negligence in the complaint, counts “c” and “d” and no instruction was given, either orally or in writing, directing the jury to return a verdict finding the issues for the defendant as to said counts “e” and “d” for the reason that the evidence was insufficient in law to support the causes of action alleged in said counts of the complaint, and that the defendant thereupon proceeded to introduce testimony and at the close of all the evidence the defendant submitted to the court the same motion for a directed verdict in his favor that was submitted at the close of plaintiff’s evidence, which motion was overruled by the court, and no instruction was tendered with said motion.

So far as the record discloses the case went to the jury upon the complaint as originally filed and not until the case was submitted to the jury upon the facts did the defendant tender an instruction informing the jury that there was no legal evidence to support the charges that the defendant drove his automobile at a greater rate of speed than allowed by statute of the State of Illinois, and instructing them in considering their verdict to disregard any evidence in regard to those two charges in the complaint.

The motion made at the close of plaintiff’s evidence did not specify any particular count or counts, but was directed against the entire complaint, and we are of opinion that the court erred in sustaining the motion as to counts “c” and “d” when the motion was not specifically directed against said counts, and that the court also erred in giving the instruction tendered with the series of instructions submitting the case to the jury upon the facts and informing the jury that there was no legal evidence to support the charges that the defendant drove his automobile at a greater speed than allowed by statute and instructing the jury to disregard any evidence in regard to said charges, and thus taking away from the jury all questions of fact and requiring them to determine, as a matter of law, that there was no evidence before them tending to support the causes of action alleged in said counts. Peirce v. Walters, supra.

At the time of the accident the plaintiff was driving a Model T 1924 Ford truck on State Route 36 and approaching the bridge over Bear Creek. It was about 10 o’clock at night. He and his wife, Blanch Hopson Fisher, had been in Quincy and were on their way to their home, which was about six miles southeast of Bowen. His wife sat on the seat beside him. The headlights of his truck were lighted from the magneto and were controlled by a switch. The tail light was an 011 burning lamp, which had been filled with oil and cleaned by -plaintiff when he left home that morning and had been lighted that evening about 8:30 o ’clock when they left Quincy. They stopped at Frasier’s filling station in Ursa for gas, and at that time the tail light was burning.

At the place of the accident the roadway was a paved concrete two-way highway, the bridge over Bear Creek forming a part of the highway, and being but a little wider than the pavement. The roadway extended on south from the bridge up a hill for a distance of about 425 feet to the top of the hill. On the east side of the highway extending from the top of the hill to the bridge was a guard fence made of cedar posts set four feet in the ground and extending three feet above the ground, with a two-foot wire netting with meshes an inch or more in size. On the west side of the highway was a similar guard fence.

At the time defendant came into view at the top of the hill the plaintiff was a short distance south of the bridge on the east side of the roadway and traveling north at from 20 to 25 miles per hour. Two automobiles with headlights burning were traveling south on the west side of the pavement, one about 25 to 50 feet from the south end of the bridge and the other about 50 feet south of that car.

The evidence discloses that the defendant was driving fast and that his car overtook the truck of plaintiff and collided with it and threw it, or appeared to throw it, against the fence and the hind end flopped around, turned over, and headed south and landed upside down, throwing the plaintiff over the east guard fence down into a ditch at the side of the road 12 feet deep and throwing plaintiff’s intestate onto the slope of highway, and then ran into the guard fence and broke off five of the cedar posts and pulled two up and the wire loose from two posts that were still standing; pulled nine or ten feet of slack wire from the south end of the fence; the wire was pulled and stretched and narrowed until there was about that much. There were skid marks on the pavement that appeared to be going northeast down the Mil. They appeared to come squarely toward the other car and then sheered off to the east side of the pavement. The skid marks were about 25 feet long from the time the wheel started to skid. The skid started about 50 feet south of the place where the Fisher car burned about the middle of the road.

A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the testimony so demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. ■ The only question which the trial court has to determine is whether there is in the record any evidence, if true, fairly tending to prove the allegations of the complaint. McFarlane v. Chicago City Ry. Co., 288 Ill. 476; Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343.

Even had the motion of the defendant, at thé close of the plaintiff’s evidence, been directed solely against the charge of negligence contained in count “c” of the complaint, we are of the opinion that the action of the court in sustaining the motion as to said count would be error.

It was charged in count “c” that the defendant negligently and carelessly drove his automobile at a speed greater than was then and there proper, having regard to the traffic and the use of the way, and contrary to the statute of the State of Illinois, and that by reason thereof the said automobile of the defendant ran into and collided with the plaintiff’s automobile.

The evidence discloses that it was nighttime and that plaintiff and his intestate were free from all negligence ; that he was driving his automobile on his side of the highway at a reasonable rate of speed; that the highway ran downgrade and the defendant was driving fast; that it was a two-lane highway; that about 400 feet from the top of the hill was a bridge wide enough to accommodate the travel over this two-lane highway; that on each side of the highway were guard fences; that there were two automobiles with lighted headlights going south towards the top of the hill, that were about opposite the plaintiff at the time the defendant was coming downhill.

Considering the evidence as to the traffic and the physical condition of the highway at that- time and place, we are of opinion that it was a question of fact to be determined by the jury whether the defendant negligently and carelessly drove his automobile at a speed greater than was then and there proper, having regard to the traffic and use of the way, and that it was error for the court to determine as.a matter of law that there was no evidence fairly tending to prove the allegations contained in said count “c” of the complaint, and in sustaining said motion as to said count.

The judgment of the circuit court of Adams county is therefore reversed and the cause remanded.

Reversed and remanded.