author: Presiding Justice Friend.

text:
    Helen G. Strickler and Roy S. Strickler, Appellants, v. William K. Yeats, Individually and as Administrator of Estate of Elizabeth Gemmill, Deceased, et al., Appellees.
    Gen. No. 41,128.
    opinion filed March 11, 1941.
    Earl J. Walker, for appellants; C. A. Pedderson and Stearns & Jones, for appellees.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


source: Caselaw Access Project

license: Public Domain

text:
    Raymond Grattan, Appellee, v. Ahlberg Bearing Company, Appellant.
    Gen. No. 41,282.

      opinion filed March 11, 1941.
    Max Murdock, for appellant; Max M. & Samuel Grossman, for appellee; Sid Mogul, of counsel.
   Opinion by

Presiding Justice Friend.

“Hot to be published in full. ’ ’


text:
    Delos Reed, Minor, by Harry E. Reed, His Father and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,293.
    opinion filed March 11, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Louis H. Geiman, and Sydney R. Drebin, Assistant Corporation Counsel, of counsel; Rothbart & Rosenfield, for appellee.
   Opinion by

Presiding Justice Friend.

“Hot to be published in full.”


text:
    Sophie Nowicki, Also Known as Zofia Nowicki, and Anna Zbylut, Appellees, v. Metropolitan State Bank and Sophie Kuczek Nowicki, Defendants. Sophie Kuczek Nowicki, Appellant.
    Gen. No. 41,305.
    opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Wachowski & Wachowski, for appellant; Casimir R. Wachowski, of counsel; Johnson, Pense & White, for appellees; Howard T. White, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    Frank Dusek and Barbera Dusek, Appellants, v. William H. Britigan, Trading as William H. Britigan Realty Association, Appellee.
    Gen. No. 41,351.

      opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Weber & Weber, for appellants; Alban Weber, of counsel; Bluford, Krinsley, Schultz & Voorheis, for appellee; Victor Hedberg, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    William H. Terrell, Appellee, v. George H. Wilson, Appellant.
    Gen. No. 41,457.
    opinion filed March 11, 1941.
    George S. Barnes, for appellant; Henry C. Ferguson, for appellee.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    3920 Lake Shore Drive Building Corporation, Appellee, v. William F. Potts, Appellant.
    Gen. No. 41,555.

      opinion filed March 11, 1941.
    Lord, Bissell & Kadyk, for appellant; Cushman B. Bissell and Bruce S. Park-hill, of counsel; Michael M. Phillips, "for appellee; William S. Kaplan, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Carroll Graham Glass Company, Appellee, v. Walter A. Stattman and Mary A. Stattman, Appellants.
    Gen. No. 41,025.
    opinion filed March 11, 1941.
    Hugh Moore Matchett, Louis Green-berg and Clarence W. Shaeffer, for appellants; no appearance for ap-pellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Johanna K. Salo-mon et al., Appellees, v. Edward J. Kelly, Mayor of the City of Chicago, et al., Appellants. People of the State of Illinois ex rel. Edna Clennon et al., Appellees, v. Edward J. Kelly, Mayor of the City of Chicago, et al., Appellants. People of the State of Illinois ex rel. Salavatore Gal-lachio et al., Appellees, v. Edward J. Kelly, Mayor of the City of Chicago, et al., Appellants. People of the State of Illinois ex rel. Carroll D. Keeler et al., Appellees, v. Edward J. Kelly et al., Appellants.
    Gen. No. 41,418.
    Gen. No. 41,419.
    Gen. No. 41,420.
    Gen. No. 41,480.
    Gen. Nos. 41,418, 41,419, 41,420, 41,480
    opinions filed March 11, 1941.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Assistant Corporation Counsel, of counsel; Mason & Mason, George A. Mason, Isaac B. Lipson, Medard A. Kunz and Aaron Soble, for appellees; George A. Mason, of counsel.
   Opinion by

Justice Scanlan.

‘ ‘Hot to be published in full.”


author: Justice Suanlan.

text:
    Julia Bissett, Appellee, v. Earl Bissett, Appellant.
    Gen. No. 41,464.
    opinion filed March 11, 1941.
    Freeman & Freeman, for appellant; Bari Freeman, of counsel; Joseph H. & Norman Becker and Ralph Rundell, for appellee; Ralph Rundell, of counsel.
   Opinion by

Justice Suanlan.

“Not to be published in full.’’


author: Justice S caul an.

text:
    Morris Axelrood, Trading as Ashland Lumber Company, Appellant, v. Nick Thanos, Appellee.
    Gen. No. 41,576.
    opinion filed March 11, 1941.
    George L. Shapiro, for appellant; George L. Shapiro, of counsel; Melnerney & Power, for appellees.
   Opinion by

Justice S caul an.

“Not to he published in full.”


author: Justice John J. Sullivan.

text:
    La Salle Mortgage and Discount Company, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, Trustee, et al. Vera De Sambad, Appellant.
    Gen. No. 40,475.
    opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Frederic Ullmann, for appellant; West & Eekhart, for certain appellee; Maurice L. Davis, for certain other appellee; John Neal Campbell and Maurice L. Davis, of counsel.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    La Salle Mortgage and Discount Company, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, Trustee, et al., Appellees. Vera De Sambad, Appellant.
    Gen. No. 40,476.
    opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Frederic Ullmann, for appellant; West & Eekhart, for certain appellee; Maurice L. Davis, for certain other ap-pellee; John Neal Campbell and Maurice L. Davis, of counsel.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    John E. Ryan, Appellant, v. David Saul Klafter, Appellee.
    Gen. No. 40,691.

      opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Rothbart & Rosen-field, for appellant; Nathan Einhorn, for appellee; Irving Goodman, of counsel.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    Lawrence Fodge and A. W. Baumgartner, Trading as Aball Wrecking Company, v. Board of Education of the Village of Oak Park, District 97 et al. Illinois Interior Finish Company, Appellant, v. Fidelity and Deposit Company of Maryland, Appellee.
    Gen. No. 40,870.
    opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    J. Amos Case, for appellant; Claude J. Dalenberg, of counsel; Dent, Weichelt & Hampton, for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    Lawrence Fodge and A. W. Baumgartner, Trading as Aball Wrecking Company, v. Board of Education of the Village of Oak Park, District 97 et al. L. J. Bullivant, Trading as Bullivant Plastering Company, Appellant, v. Fidelity and Deposit Company of Maryland, Appellee.
    Gen. No. 40,962.

      opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; David Levinson and Frank C. Bernard, of counsel; Dent, Weichelt & Hampton, for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    Chicago Title and Trust Company, Trustee, and Donald Munroe, Plaintiffs, v. Andrew D. Armstrong et al., Defendants. Thomas Hicks, Sr., Appellant, v. Donald Munroe, Appellee.
    Gen. No. 41,029.
    opinion filed March 11, 1941.
    William Gillespie, for appellant; Irving S. Berman, for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


author: Justice! John J. Sullivan.

text:
    William B. Bird, Appellee, v. Frank O. Lowden et al., Trustees of Chicago Rock Island and Pacific Railway Company, Appellants.
    Gen. No. 41,085.
    opinion filed March 11, 1941;
    rehearing denied March 27, 1941.
    Harry E. Boe and Daniel Taylor, for appellants; Milton Y. Thompson, of counsel; H. A. Earnhardt, for appellee.
   Opinion by

Justice! John J. Sullivan.

“Hot to be published in full.” .


author: Mr. Presiding Justice Eiess

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Appellant, v. Fon du Lac State Bank, Appellant. Federal Deposit Insurance Corporation, Appellee, v. Charles H. Albers, Receiver of Fon du Lac State Bank, Appellant.
    Gen. No. 9,240.

      Opinion filed February 25, 1941.
    Rehearing denied April 1, 1941.
    George Z. Babees and John E. Dougherty, both of Peoria, for appellant.
    Quinn, Quinn & O’Hern, of Peoria, for appellee; Jay J. Alloy, of Peoria, and Charles V. O’Hern, Jr., of counsel.
   Mr. Presiding Justice Eiess

delivered the opinion of the court.

On September 11, 1939, the circuit court of Tazewell county, Illinois, entered certain decretal orders in the case of People ex rel. Barrett v. Fon Bu Lac State Bank, a corporation, then in course of liquidation under provisions of the Illinois Banking Act through Charles H. Albers, the auditor’s receiver, which orders directed the receiver to pay the respective sums of $1,000 and $1,185.25 to the Federal Deposit Insurance Corporation to reimburse the latter for payments alleged to be due or to have been made for attorney and solicitor fees incurred in resisting the claims of certain other creditors to subrogation and preferential payment from the funds in the hands of said receiver, arising from the liquidation of the assets of said Fon Du Lac State Bank. The appellant receiver filed a motion to set aside the above orders on the ground that the court lacked jurisdiction to enter the same, which motion was denied and the appeal herein then followed.

It appears from the evidence that the Fon Du Lac State Bank had operated with capital stock of $50,000 and $5,000 surplus before it became insolvent and its assets were taken over for liquidation by the auditor’s receiver. In the course of such liquidation, one of the creditors, Margaret H. Arnold, a township school treasurer, who had deposited school funds in said bank in the amount of $74,778.59, had sought the recovery thereof out of the liquidated assets as a preferred claim. Warren Sutliff, the president, and other officials of said bank had executed a bond personally obligating themselves to assume payment of the amount of all liability on excess deposits over the statutory limit of 75 per cent of the capital stock and surplus of said bank. The school treasurer recovered and received from the bondsmen in a suit on said bond the sum of $30,200, and said bondsmen then filed claim for payment and recovery from the receiver, as alleged subrogees of said school treasurer, the amount of all dividends found payable to her as an alleged preferred creditor. The alleged claim of the school treasurer as a preferred creditor was successfully resisted in the circuit court by the auditor’s receiver, and the Federal Deposit Insurance Corporation, which latter corporation had first paid to the insured depositors the balances respectively due them and then intervened in the suit by leave of the trial court and thereby joined the auditor’s receiver in opposing said claim for preference by the school treasurer.

It further appears that the claim of Warren Sutliff and the sureties as subrogees for any dividends which might otherwise have been payable to the township school treasurer was likewise resisted by the auditor’s receiver and by the Federal Deposit Insurance Corporation, as a voluntary intervenor, and was defeated in the trial court, and upon appeal from that decree to this court, such decree was affirmed. This case was reported as People ex rel. Barrett v. Fon Du Lao State Bank, 295 Ill. App. 71, 14 N. E. (2d) 686, wherein a petition for leave to appeal to the Supreme Court was later denied.

Subsequently, the claims for the allowance of such solicitors’ fees were filed by the intervening Federal Deposit Insurance Corporation and allowed by the trial court for the services performed by its counsel in said litigation, which services were supplementary to those of counsel for the auditor’s receiver in successfully resisting said claims. Appellant receiver alleges error in entering the decretal orders allowing and directing payment by the, auditor’s receiver from the bank assets of said solicitors’ fees to the Federal Deposit Insurance Corporation and in denying the receiver’s motion to set the same aside.

It is conceded that the successful resistance to the allowance of said claims as subrogees or preferred creditors increased the funds available to the common creditors of the Fon Du Lac State Bank, so in course of liquidation by the auditor’s receiver, but that no contract of employment or for payment for any solicitors’ services was entered into by the intervening Federal Deposit Insurance. Corporation with the auditor or receiver, and no claim therefor was exhibited or filed with the auditor, but was allowed by the chancellor with costs in the pending equitable proceedings.

It is provided by sec. 11, ch. 16 ½, of the Banking Act, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 10.11], concerning the allowance of certain receivership expenses and attorney fees by the auditor of public accounts and payable out of the assets of the bank, as follows: “. . . All expenses of such receivership, including reasonable receiver’s, solicitor’s and Attorney’s fees, approved by the Auditor of Public Accounts, shall be paid out of the assets of such bank; and all expenses of any preliminary or other examinations into the condition of any such bank or receivership, and all expenses incident and in connection with the possession and control of any banking house, furniture and fixtures, books, records and assets of every description of such bank by the Auditor for the purpose of reorganization or liquidation through receivership, shall be paid out of the assets by such bank.”

Reimbursement sought by appellee herein was not for receiver’s attorneys’ fees or expenses, but for counsel fees incurred and expended by appellee, who had intervened and rendered such services and aid in successful preservation of the common fund in an equitable proceeding at issue before the court in which the chancellor was acting with full and undisputed jurisdiction of both the parties and the subject matter then in controversy and duly submitted to said court for its adjudication. We do not deem the above-quoted portion of section 11 of the Banking Act cited and relied upon by appellant to be controlling and conclusive as to the jurisdictional powers of a court of equity under the facts and circumstances involved in this case.

That a court of equity may in the exercise of its sound discretion reimburse a litigant for reasonable counsel fees expended in aiding to preserve a common fund has been frequently held by the courts of this and other States. Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 59 S. Ct. 777; First Nat. Bank v. LaSalle-Wacker Bldg. Gorp., 280 Ill. App. 188; People ex rel. Barrett v. Hoisted Street State Bank, 295 Ill. App. 193, 14 N. E. (2d) 872; Schwind v. Forester, 289 Ill. App. 172, 6 N. E. (2d) 898.

We deem the applicable rule to be that a court of equity in the exercise of its sound discretion may order an allowance of reasonable solicitors’ fees to a party who, at his expense, has maintained a successful suit for the preservation, protection or increase of the common fund or of common property or thereby aided in preserving or bringing into court at his expense a fund which others may share with him. We do not deem the case of Henke v. Gwnzenhauser, 195 Ill. 130, 62 N. E. 896, concerning the payment of attorney fees in a foreclosure proceeding based upon contracts to be applicable to the facts herein nor at variance with the well-established equitable rule which we have recognized. First Nat. Bank v. LaSalle-Wacker Bldg. Corp., supra. We find nothing in the provisions of section 11 of the Banking Act nor in the opinions in People ex rel. Palmer v. Niehaus, 356 Ill. 104, 190 N. E. 349; People ex rel. Barrett v. Shurtleff, 353 Ill. 248, 187 N. E. 271, and People ex rel. Barrett v. West Bide Trust & Savings Bank of Chicago, 362 Ill. 607,1 N. E. (2d) 81, cited by both parties to be in conflict with the above rule or its application under the facts herein.

This equitable power of allowing counsel fees incurred by the intervenor should always be exercised by the court with caution and with sound discretion in order that no unnecessary costs or expenses should be permitted to deplete the common fund from which the same is payable and should be exercised only when such services have materially aided in the protection of such common fund. In the instant case, it was expressly found and decreed by the trial court that the various services enumerated in its decree resulted in denying the respective claims for preference and for subrogation in the trial court and the latter claim upon appeal to this court and upon petition for leave to appeal in the Supreme Court. The chancellor further found that as a result of such decrees, the receivership trust and general creditors of said Fon Du Lac State Bank were substantially benefited; that the amount paid by the intervening Federal Deposit Insurance Corporation to its counsel was fair and reasonable compensation for the services rendered in such matter and should be borne and repaid by the receivership trust and ordered accordingly. Under these facts and circumstances, we hold that the chancellor below acted within his sound discretionary equitable powers concerning the payment of the costs and solicitors’ fees involved in the trial and disposition thereof and that he did not err in the entry of such decrees or in denying appellant’s motion to vacate the same.

The equitable orders and decrees herein appealed from will therefore be affirmed.

Affirmed.


author: Mr. Justice Riess

text:
    Earle J. Klopp, Appellee, v. Benevolent Protective Order of Elks, Lodge No. 281, Appellant.
    Gen. No. 9,255.

      Opinion filed February 25, 1941.
    Opinion modified and rehearing denied April 1, 1941.

      Lord, Bissell & Kadyk, of Chicago, and Branson Wright and Thomas S. Weldon, both of Bloomington, for appellant; Gordon R. Close and Herbert C. Brook, both of Chicago, of counsel.
    Stone & Taylor, of Bloomington, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

This appeal seeks to reverse a judgment in the sum of $2,500 entered by the circuit court of McLean county against the defendant appellant, Benevolent Protective Order of Elks, Lodge No. 281, a nonprofit corporation, in an action brought by the plaintiff, Earle J. Klopp, under the Dram Shop Act (sec. 135, ch. 43, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042]) for damages arising out of injuries sustained by him.

The case was tried upon its merits by the court without a jury. No evidence was offered by the defendant. At the conclusion of the evidence, defendant moved to dismiss the suit, which motion was denied and the judgment was entered.

The defendant contends that the selling or giving of intoxicating liquor by defendant was not the proximate cause of the injury and damages complained of and that the evidence failed to establish due care on the part of the plaintiff.

The evidence offered by the plaintiff disclosed in substance that the defendant maintained club rooms at Bloomington, Illinois, which consisted principally of 2 rooms, the front or west room, in which there were dining tables, chairs and a small dance floor, and the main club room containing card tables, lounging chairs, radio and a bar. Food and liquor were served members on the premises, and all of the receipts derived therefrom, remaining after payment of expenses, were turned over to the treasurer to be used for various purposes of the Lodge.

On the evening of February 26, 1938, plaintiff, a member of the defendant Lodge, accompanied by his wife and a friend, were at the club rooms. During the course of the evening, A. C. Bartlett, a member of the defendant Lodge, became intoxicated as a result of liquor served to him in the club rooms, and some time after two o’clock a.m. he engaged in an argument with the bartender. The bartender, steward and several members of the club forcibly put him out of the club rooms. He remained.in the vestibule with the steward for 10 or 15 minutes, and asked to be permitted to get his hat and coat to go home. As he returned to the club rooms, he made an offensive remark to one of the members who was standing near the door. The member resented the remark and started toward him. This caused a general struggle along the wall of the main club room toward the bar. Plaintiff’s wife, who was going towards the front room, was knocked down between the end of the bar and the entrance of the vestibule door. In the meantime, plaintiff came out of the washroom and was walking toward the front room. He saw his wife on the floor, and in attempting to go to her assistance, he was knocked or fell to the floor, and in some manner sustained a fracture of his leg. While they were lying on the floor, one Fred Callans ran from the front room and jumped on a pile of men, and the defendant claimed that the injuries suffered by the plaintiff were caused by the act of Fred Callans, although the plaintiff testified that he did not know for certain when he received the injuries. The statement that Callans was sober when he left his table in the adjoining room where he had been eating and drinking and joined in the general melee is a mere conclusion. Callans admitted that he had come from his place of employment as a barkeeper after one o’clock and drank three or four bottles of beer at the Elks’ Club within the hour after his arrival. The hour was very late and drinking had been general among the patrons present. There is no evidence that plaintiff’s injuries were inflicted by the person to whom Bartlett addressed insulting language. It happened after the plaintiff had returned from the washroom and saw his wife on the floor, during the course of a second general fight that the plaintiff was injured. Defendant’s barkeepers and attendants were then undertaking to quell and evict Bartlett for a second time, and it was during this fight which had become a common brawl, spoken of by one of the witnesses as “disgusting,” that Klopp, who was seeking to go to the aid of his wife, was injured. The defendant offered no evidence upon the trial of this cause, and the sole question presented by this record is whether or not the court erred in denying defendant’s motion to find it not guilty at the close of all the evidence, and in entering judgment against the defendant and in favor of the plaintiff.

Defendant’s theory is that the injuries suffered by the plaintiff “were not the result of the intoxication of any of the members of the Club, but of an independent intervening cause, which, according to defendant’s theory, was a malicious assault by a non-intoxicated person.” A fair reading of the abstract of testimony given by the various witnesses will not, however, bear out defendant’s conclusions.

Some confusion has arisen as to what constitutes proximate cause in cases of this character. In the case of Shugart v. Egan, 83 Ill. 56, cited by appellant, a judgment for the plaintiff widow for injuries resulting from the killing of her husband by a third person was reversed in a majority opinion with two dissents. There, the deceased, while intoxicated, had insulted a third party who later stabbed and killed him away from the premises where the liquor was sold. Other cases are cited which we have carefully read and considered, but believe it would serve no useful purpose to discuss them, since the facts in each distinguish them from the case at bar.

We deem the language of the Supreme Court in Triggs v. McIntyre, 215 Ill. 369, 372, 74 N. E. 400, to state the rule applicable to and controlling under the facts herein, and an answer to defendant’s contention as to proof of proximate cause, viz: “In Schroder v. Crawford, 94 Ill. 357, the facts showed that an intoxicated person, in going to his home in the night, had to cross a railroad, and next morning was found on the track, killed by being run over by a train of cars; and it was there held that the intoxication was the proximate cause of his death, and that the party, furnishing him the liquor, and the owner of the premises, where the liquor was furnished to him, were liable to his widow under the statute for injury to her means of support; and in that case we said (p. 361): ‘It was not the intention that the intoxicating liquor alone, of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning.’ In the Schroder case we also said: ‘It is said there was here an intervening agency which caused the death, to-wit: the train of cars; that that was the proximate cause, and the intoxication but the remote cause, and that the proximate cause only is to be looked to. So it might be said where one from intoxication lies down and becomes frozen to death, or falls into the fire and is burned to death, or is drowned by a freshet, as in Hachett v. Smelsley, 77 Ill. 109, that the intervening agency of frost, fire and the freshet occasioned the death and was the proximate cause, and thus no liability under this statute. This would be construing away the statute in defeat of its purpose.’ But it was a matter for the jury to determine from all the evidence in the case whether or not the death of McIntyre was due to intoxication as the proximate cause.” As is aptly said in Schroder v. Crawford, supra, at page 360, “The action is not a common law action, depending for its maintenance upon common law principles, but it is a statutory remedy and lies as given by the statute. The statute giving the action is very broad in its terms . . .

In the instant case, defendants seek to single out the incident of certain insolent language used by Bartlett and also their construction of the subsequent action of Callans, both as disconnected from and independent of the whole of the evidence of what transpired, and conclude therefrom that the same constituted intervening agencies which “broke any possible causal relation between defendant’s acts in selling liquor and plaintiff’s injuries.” We cannot thus entirely ignore the circumstances surrounding the first fight in which plaintiff’s wrist was broken due to no apparent fault of his own, followed by the eviction of Bartlett and his return and the subsequent occurrences immediately transpiring wherein he was again more seriously injured, as detailed by numerous witnesses. The question of proximate cause under the evidence herein became one of fact to be determined, not alone from isolated circumstances, but from a fair and impartial consideration of the whole of the evidence. The same arguments were made in Triggs v. McIntyre, supra, and Schroder v. Crawford, supra, it being contended that the intoxication merely created the condition followed by an intervening proximate cause, but the court did not so hold.

The defendant served liquor to its members and guests until two o ’clock in the morning on the occasion in question. One member was intoxicated. The un-controverted facts show that Bartlett had been drinking since early evening; that the liquor he drank was purchased from the defendant and served on the defendant’s premises; that he was intoxicated, noisy and quarrelsome; that he was abusive and profane and was ejected from the club rooms previous to the occurrence, and that the steward of the club remained with him for a short time in the vestibule. The natural and logical sequence of the events resulted entirely from the drunkenness of Bartlett caused by liquor furnished him by the defendant, and was the natural and probable consequence of selling and giving him intoxicating liquor. It is common knowledge that drunken brawls result in places where liquor is sold and drunk, and such brawls are frequently, if not usually, preceded by insolent and quarrelsome language on the part of intoxicated persons. It is a frequent occurrence in our nisi prius courts that suits seeking recovery of damages under the Dram Shop Act arise wherein altercations so begun have ended in fights and resultant injuries to the person, property or means of support of some other person or persons. To hold that a sober person who happened to be in a position to be injured in consequence of a condition caused by a dispenser of liquor could not recover would defeat the purpose of the statute. While statutes which are penal in character are generally to be strictly.construed, the prevailing view is that legislation supplying remedies for injuries or damages caused by intoxication is remedial in its character and should be so construed as to suppress the mischief involved and advance the remedy provided for in the statute. Hyba v. C. A. Horneman, Inc., 302 Ill. App. 143,146, 23 N. E. (2d) 564.

In the very recent case of Haw v. 1933 Grill, Inc., 297 Ill. App. 37, 17 N. E. (2d) 70, decided under the present Dram Shop Act, it was contended, as herein, that the injuries suffered by plaintiff’s husband were proximately caused by the intervening act of a third party, defendant’s floor manager, in attempting to eject the intoxicated person from the Grill where he had become intoxicated and noisy. There we held that the defendant might reasonably have anticipated such a consequence as a result of the intoxication. The question of the proximate cause of any injury is ordinarily a question of fact for the jury. Schulte v. Schleeper, 210 Ill. 357, 71 N. E. 325.

Findings of the court in trials without a jury are entitled to the same weight as a jury verdict, and will not be set aside unless manifestly against the weight of the evidence. Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180, 27 N. E. (2d) 1012. Whether or not the plaintiff was in the exercise of due care for his own safety under the evidence herein was also a question of fact upon which we deem the trial court to have acted in accord with and not contrary to the manifest weight of the evidence.

We deem the contention of the defendant that it was a purely charitable organization and not liable to respond in damages for torts to be of no force and not applicable to the facts appearing herein. The intoxicating liquor was dispensed under a dramshop license and the net profits went into defendant’s treasury. The statutory liability to respond in civil damages under section 135, supra, is incident to the business and is a risk that all persons must assume who engage therein. Hyba v. C. A. Horneman, Inc., supra. There is no inherent right to sell intoxicating liquors. It is a policy of the State to consider the right to such traffic as permissive only. Great Atlantic & Pacific Tea Co. v. Mayor & Com’rs of City of Danville, 367 Ill. 310, 11 N. E. (2d) 388. The regulation and control of the sale of intoxicating- liquor by legislative enactments is a proper exercise of police power of the State binding upon all who engage in the traffic, and the validity of such legislation has been frequently upheld by the courts of review of this and other States. People v. Smith, 368 Ill. 328, et seq., 14 N. E. (2d) 82. Under the facts in evidence, the defendant was bound by and subject to the provisions of the act.

The trial court, sitting as judge of the law and the facts, heard the evidence and deemed the material allegations of the complaint upon which issue was joined by the defendant to have been proven. While we have not recited all the facts shown by the evidence, we have carefully considered the same and are of the opinion that the finding and judgment of the court was not contrary to the manifest weight of the evidence and that on the law and the facts herein, no reversible error appears in the record.

The judgment of the circuit court of McLean county will therefore be affirmed.

Judgment affirmed.


text:
    Samuel Selman et al., Appellees, v. Midwest Haulers, Inc., et al., Appellants.
    Gen. No. 9,266.

      Opinion filed February 25, 1941.
    Rehearing denied April 1, 1941.
    Lord, Bissell & Kadyk, of Chicago, and Hollen-beck & Hollenbeck, of Marshall, for appellants; Bruce S. Parkhill and Herbert C. Brook, both of Chicago, of counsel.
    Acton, Acton, Baldwin & Bookwalter, of Danville, and Snavely & Miller, of Marshall, for appellees; William M. Acton and Robert E. L. Cook, of Chattanooga, Tenn., of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Defendants have appealed from judgments entered against them in the circuit court of Clark county in favor of the plaintiff appellees, in a joint action at law to recover damages for personal injuries alleged to have been sustained by the respective plaintiffs through the alleged negligence of the defendants in a collision between defendants’ tractor and trailer and plaintiffs’ automobile at a point on U. S. Highway Route No. 40 near a railway underpass located one and one-half miles east of Martinsville, Illinois.

Plaintiffs charged that the defendants were guilty of one or more of the following acts of negligence: (1) Operating their tractor and attached semitrailer on the public highway in question without good and sufficient braking equipment capable of stopping said vehicles within certain specified distances provided in sec. 211, ch. 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.243]; (2) in operating said combined vehicle at a speed greater than was reasonable and proper, having regard for the traffic and use of the highway, in violation of section 146 of said chapter and statute; (3) in operating said vehicle upon the left side of the roadway (which was an 18-foot concrete highway with black center line extending in an eastward and westward direction) and into that portion thereof reserved for traffic moving in the opposite direction, in violation of section 151 of said chapter and statute prescribing that vehicles shall be driven on the right half of the roadway; (4) general negligence in the operation of the vehicle and (5) negligence in failing to properly apply brakes on the vehicle upon meeting the car in which plaintiffs were riding.

The defendants filed answers denying that they were guilty of any of the acts of negligence charged in the complaint or in any respect liable to the plaintiffs for the injuries alleged to have been sustained by them.

The case was tried by a jury, which returned a verdict against the defendants in the respective sums of $25,000 for personal injuries sustained by plaintiff Samuel Selman and in the sum of $350 each for the respective plaintiffs, Donald Johnston and Nathan Price. The defendants had interposed motions for a directed verdict in their favor at the close of both the plaintiffs’ and defendants’ testimony and for judgments notwithstanding the verdict, all of which were denied by the court, together with defendants’ motion for a new trial, and judgment for the plaintiffs was entered by the trial court upon the verdict for said respective amounts, from which this appeal is taken.

Defendants assign alleged errors on the part of the court in denying motions for directed verdicts for the defendants; in denying motions for judgment non obstante veredicto and for a new trial. Error was also assigned in giving plaintiff’s instructions numbered 3, 5,10,12 and 13 and in refusing an instruction offered by the defendant; concerning the admission and exclusion of certain evidence, and that the verdict and judgment were contrary to the manifest weight of the evidence and contrary to law and to the evidence.

The facts, briefly recited, were substantially as follows : The three plaintiffs and two other persons, members of a concert troupe known as the Seagle Singers, were riding eastward along said TJ. S. Route No. 40 in a Lincoln Zephyr sedan owned by Seagle and driven by plaintiff Selman, on March 14, 1939, shortly after four o’clock p. m. when the collision took place. The collision occurred at a point about a mile and a half east of Martinsville on the south shoulder of said highway, approximately 100 feet west of an underpass beneath the tracks of the Pennsylvania Railroad which crosses said highway in a northeasterly and southwesterly direction. The highway takes the form of an S curve at a point between three and four hundred feet west of the railroad curving to the right and down a slight grade under the railroad tracks and thence upwards and to the left on the east side of the railroad before continuing in an easterly direction.

The defendant Leach was enroute from Toledo to St. Louis driving defendant Midwest Trailers, Inc., tractor with semitrailer attached, which combined vehicle was about 31 feet in length, 8 feet in width and 9 feet high, having single wheels on the front of the tractor and double wheels on the back of both the tractor and the trailer, of an unloaded weight of 11,000 pounds, but loaded with freight at the time of the collision. A third car, whose occupants were witnesses, was being driven westwardly about 150 feet to the rear of defendants’ tractor and trailer when the collision occurred.

The weight of the testimony indicated that the left-front tire of the defendants’ truck sustained a blowout at the approximate point of the underpass; that the tractor and trailer veered to the left diagonally across' the slab and almost entirely on to the shoulder with the rear portion of the trailer on the slab; that the Lincoln Zephyr coming eastward put on brakes and swung over to the shoulder on the south or right side of the concrete portion of the highway; that the cars came together in a head-on collision, leaving the front portion of the tractor elevated on top of the hood of the sedan, which was crushed beneath; that the point of impact was slightly off of the slab and on the south side thereof; that the soil beneath was torn up for several feet and that the plaintiff Selman sustained personal injuries of a serious and permanent nature. No claim that the amount of the verdict or judgments were excessive is made by the defendants and no error is assigned thereon.-

The occupants of both cars and the car in the rear of the tractor testified as occurrence witnesses, and the occupants of a third car coming from the rear shortly thereafter were also heard. Numerous witnesses who came upon the scene of the collision shortly thereafter testified what the conditions were as the result of the collision as they found them.

There is a conflict in the testimony as to the rate of speed at which both cars were traveling. Leach, the driver of the tractor, testified that after the blowout he had put on brakes and the left signal lights’ of his truck as it swung to the left across the pavement and had come to a full stop shortly before the collision occurred and was struck by the sedan coming at a high rate of speed. Some witnesses testified that the truck had been traveling from 35 to 40 miles per hour and had moved across the slab diagonally and was still going forward when the collision occurred. Selman and certain occupants of the sedan testified that they were advancing at all times on the right side or half of the slab and that when the truck came across, the brakes of the sedan were applied and that it left the slab to the right in order to avoid the collision which occurred when the two moving cars came together, and that at the time of the impact the sedan was almost stopped and the truck did not seem to slacken speed.

Leach testified that he could have stopped his truck by application of the brakes within 10 to 15 feet, but that he traveled the longer distance across the slab and to the left shoulder in order to get off of the slab and clear of oncoming traffic. He denied the statement of plaintiffs’ witness William Wright that he had stated to the latter on the day following the accident at the hospital that “I did put on my brakes when the tire blew out, but it headed me toward the concrete wall of the viaduct and I released my brakes and let the truck go on because if I had kept them on I would have run smack into that wall and smashed my truck and cargo. I was just hoping the other guy would turn out around me and miss me.”

It was contended by the defendants in support of their motion for a directed verdict that there was no evidence of due care on the part of the plaintiffs. In this, we cannot concur after having carefully read the abstract. The question was peculiarly one of fact to be passed upon by the jury in the light of all the surrounding facts and circumstances in evidence and reasonable inferences therefrom. We hold that in denying the defendants’ motion for directed verdict and judgments non obstante veredicto, the trial court committed no error. Without analyzing the various facts and circumstances in evidence that are discussed by counsel in regard to their various contentions that they tended to prove that the defendant was or was not negligent, we find that the evidence was in sharp conflict and that the verdict was not contrary to the manifest weight of the evidence. The jury were judges of the credibility and weight of the evidence, and from a consideration of the whole of the evidence, we find that the jury was fully justified in finding the issues of fact in favor of the plaintiffs herein and that the trial court committed no error in overruling defendants’ motion for a new trial and in entering judgments upon the verdict.

Defendants further assign, but do not stress, alleged errors in the admission and exclusion of certain evidence, which we have carefully examined, but can find no reversible or prejudicial error in the record in relation thereto.

Concerning the objections to certain numbered instructions that were given on behalf of the plaintiff and the instruction of the defendant which was refused, we find no prejudicial error.

Plaintiffs’ given instruction No. 3 informed the jury in the language of the statute of the regulations of the Motor Vehicle Act under the charges of negligence, followed by instructions making application thereof to the facts in the case was not erroneous. As is said in Deming v. City of Chicago, 321 Ill. 341, 151 N. E. 886, “Where an instruction is given in the language of a statute which is pertinent to the issues, it must be regarded as sufficient. Laying down the law in the words of the law itself ought not to be pronounced error.” It has frequently been held that where there is evidence which makes the statute applicable where the cause of action is based upon a statute, it is proper to instruct in the language of the statute. Fannon v. Morton, 228 Ill. App. 415, 428; Fisher v. Johnson, 238 Ill. App. 25, 34; Van Meter v. Gurney, 240 Ill. App. 165, 190; Corlett v. Illinois Cent. R. Co., 241 Ill. App. 124, 132.

Instruction No. 5 informed the jury in the language of the complaint on the charges of negligence therein. This instruction supplemented the one in which the language of the statute was given, and we cannot agree with defendants’ contention that there was no credible evidence to support each of the elements of this instruction. The charge of negligence was set forth in the complaint in the alternative, and it was only necessary that the plaintiffs sustain one or more of the several charges of negligence proximately causing the plaintiffs’ injuries. An instruction similar to the one given in the instant case by the court was approved in Murphy v. King, 284 Ill. App. 74, wherein a petition for leave to appeal was denied by the Supreme Court.

Instruction No. 12 was a stock instruction setting forth the degree of care required by one who is confronted with sudden danger. In view of the oncoming tractor and trailer as it came diagonally across the slab to the point of collision, it was proper to give an instruction to the jury as to the degree of care required of the plaintiffs at and immediately prior to the injuries and collision under the circumstances in evidence.

It is contended by appellants that instruction No. 13 is argumentative in form and is made to apply only to the plaintiffs. This instruction concerned the degree of care required by the plaintiffs and has been approved by courts of review in this State. Walsh v. Chicago Ry. Co., 303 Ill. 339, 135 N. E. 709. It was upon the question of care and caution required of the plaintiffs and properly did not apply to the defendants. The case of Engstrom v. Olson, 248 Ill. App. 480, discussed an instruction concerning the right of the plaintiff to testify in his own behalf and does not apply to the facts in this case.

The refused instruction of the defendant, for whom 10 instructions were marked “Given” and but one marked “Refused” concerned provisions of the statute prohibiting a vehicle being left upon the paved or improved part of a highway when it is practical to stop, park or leave the vehicle off of such part of said highway, followed by the excepting clause: ‘' This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such 'position,” to which the defendants added the following language: “The Court further instructs the jury that upon the said date, the defendant, Robert Leach, was under duty to obey the above Statute, and that duty is one of the elements that you may and should consider in determining whether or not the defendant, Robert Leach, was negligent at or immediately before the time of the accident in question.” The language of this statute has no application to the facts in the case at bar and was properly refused. It was argumentative, singled out certain facts and would have been confusing and misleading if given. Here, all the evidence shows that the truck had moved across from its lane on to and beyond the lane of opposite moving traffic. It was not an emergency stop in its line of traffic nor one to which the above statutory provision would apply.

The jury were fully instructed upon the issues, and we find no prejudicial error in the giving and refusing of instructions herein.

From an examination of the whole of the record, it is the opinion of this court that the case was fairly tried; that the verdict and judgment was responsive to the evidence and that substantial justice was done between the parties.

Finding no reversible error in the record, the judgment of the circuit court of Clark county will therefore be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Stone

text:
    Joseph Riddle, Administrator of Estate of Joseph Graber, Deceased, Appellee, v. General Union of International Brotherhood of Blacksmiths, Drop Forgers and Helpers, Appellant.
    Opinion filed March 1, 1941.
    C. C. Dreman and C. J. Anderson, both of Belleville, for appellant.
    T. S. Morgan, of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On January 10, 1938, Joseph Biddle was appointed administrator of the estate of Joseph Graber, deceased. Graber at the time of his death on January 5,1938, was a member of the Local Union of International Brotherhood of Blacksmiths, Drop Forgers .& Helpers. As such administrator, appellee made application to the appellant for the payment to him of the death benefits provided by appellant’s constitution for those members who are in good standing at the time of their death and who have been for at least 6 months last past. The application was refused by appellant on the ground that Graber was in arrears in dues for 2 months at the time of his death, and that upon refusal of appellant to pay that the plaintiff had not referred the question to the general executive board of said union for determination before instituting suit. Plaintiff afterwards instituted this suit to collect the sum of $300 on the theory that his intestate had been a member in good standing of said union for more than 5 years, and, therefore, was entitled to said sum of money, that being the amount provided by the constitution for said members in good standing who had been such for 5 years.

The complaint in the case set out article 15 of appellant’s constitution, the pertinent parts of which provide that $300' shall be paid to such members who have been in good standing for the period of 5 years and that all questions and disputes arising on account of payment of claims shall be referred to the general executive board, whose decision shall be final.

Trial had been on complaint and answer before the court without a jury and the court rendered judgment in favor of appellee for the sum of $300, from which judgment appellant appealed to this court.

The evidence shows that the deceased had been a member of the union since 1925, appellee produced receipts, and out-of-work receipts showing such membership since February 9, 1928. In 1936, the deceased’s dues for March were paid on April 14th of that year; the dues for April and May, 1936 were paid on June 22, 1936; the dues for June and July were paid on August 20, 1936; the dues for August and September, on October 19, 1936; the dues for October and November, 1936, on December 14,1936, and so on down to December 20, 1937, 16 days before his death, when deceased paid his dues for the months of October and November, 1937.

Appellant claims that the deceased at the time of his death was not in good standing because the December and January dues had not been paid in advance. The receipts showing payment show clearly and conclusively that appellant adopted a different system of payment from that which it claimed, — that is, in advance ; that it accepted the dues of the deceased almost as he wished to pay them, — never in advance, always in arrears, and when he paid 2 months at a time instead of 1 it still left him in arrears. Notwithstanding this the appellant accepted his money and kept him as a member in good standing of its union, and continued to accept the money time and time again under this different system, which apparently met the convenience of the deceased.

We have so often held that this course of conduct waives the payment prescribed in insurance policies and other like obligations that it seems futile to repeat it here. In Benoist v. Business Men’s Assur. Co. of America, 299 Ill. App. 571, we said: which would estop it from saying now that the policies were not in continuous forcé. This conclusion finds support in the case of Illinois Life Ass’n v. Wells, 200 Ill. 445, 65 N. E. 1072, 1075, in which it was said ‘If payment was actually made, even though not according to the terms of the policy, the company could certainly not thereafter insist upon a forfeiture for a failure to pay promptly. ’ ”

“These 12 quarterly payments which were paid by the insured and accepted by the defendant appellant would make a period of about 3 years. Running over that length of time, and accepting the payments when they were past due without any apparent objection and without any word to the insured looking towards forfeiture, or any steps in that direction, seems to us by consent and agreement and practice to establish a different system of payment than that provided in the policy. We are, therefore, of the opinion that the defendant waived the payments as provided in the policy and consented to a different system of payment

Practically this same thing was reiterated by us in Harris v. Sovereign Camp of Woodmen of the World, Inc., 302 Ill. App. 310, and Bayci v. Rango, 304 Ill. App. 203. In Harris v. Sovereign Camp of Woodmen of the World, 374 Ill. 47, our Supreme Court said:

“We approve of the judgment of the Appellate Court on the only question which we have power to review. In Dromgold v. Royal Neighbors of America, 261 Ill. 60, we held that a subordinate lodge or council is the agent of the supreme lodge, notwithstanding the declaration of any by-law to the contrary; that where a member is. required to pay dues to the local lodge, the local lodge, in that matter, is the agent of the supreme lodge, and is the authority with whom members must deal, and upon whose actions, within the scope of its authority, the members may rely; that if a benefit society permits a subordinate lodge and its officers to act in such a manner in receiving dues that the member is justified in believing that the reasons for forfeiture specified in the by-laws have been waived, the society cannot set up such a forfeiture nor rely thereon as a defense to a suit on the benefit certificate. This case is so close to that one on the facts that we might quote much of the opinion here, but deem it unnecessary.”

These decisions, together with many others that might be cited would seem to have settled once and for all the question of waiver of payment in such cases. The facts in this case show to our mind that if deceased had lived and sent in his payment at the date he died, instead of dying, the appellant would have willingly received it. It was only when “pay-day” came that it fell back upon its strict adherence to the rule that dues must be paid in advance.

The second defense set up has really less merit, if possible, than the first. All the correspondence between the parties to this suit was sent to the general secretary who was also the secretary of the general board, which the constitution provides should adjust claims. It seems to us that this amounts to submitting it to that board. The evidence further shows the fact that appellee applied to the appellant for a copy of the constitution in order that he might be guided by it, and it was refused to him.

In Friedman v. Knights of Modern Maccabees, 170 Ill. App. 33, it was held that in order that a failure by the beneficiary to exhaust the remedies provided to be pursued under the constitution and by-laws of the society may be availed of, the society must show that it did all that was required of it in order to require the beneficiary to resort to such remedies.

After a full consideration of all the issues in this case and the facts thereon, we are inclined to reiterate the language of the First District Appellate Court in Bayci v. Rango, supra, namely: “The defense interposed is so lacking in fairness to the deceased member and his widow that it shocks ones sense of justice.”

The distinguished and able trial judge who decided this case, in our judgment, decided it correctly. That judgment is affirmed.

Judgment affirmed.


text:
    George Edwards, Appellee, v. Hill-Thomas Lime and Cement Company, Appellant.

      Opinion filed March 1, 1941.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Geers & Goodman, of Collinsville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal prosecuted from a judgment secured by appellee, George Edwards, in the city court of the city of East St. Louis, against appellant, Hill-Thomas Lime and Cement Company, for personal injuries sustained by appellee on the 17th day of September, 1937, when a moving van which appellee was driving was involved in a collision with a truck belonging to appellant. For purposes of convenience, appellee will hereinafter be referred to as plaintiff, and appellant, as defendant.

State street, in the city of East St. Louis runs east and west, and intersects Sixty-first street, which runs north and south. It is 60 feet wide and at the time of the accident had an 18-foot concrete slab on either side, and a 24-foot cinder strip down the center. There is a jog in State street, at this intersection, Sixty-first street running north from State street being further east than Sixty-first street running south from State street.

On the 17th day of September, 1937, at about five o’clock in the afternoon, in the said city of East St. Louis, plaintiff was driving a moving van in an easterly direction, on State street. The truck of the defendant was being driven in a westerly direction on the north side of State street, following a Ford sedan, belonging to the witness, Goldie Wilson. As the plaintiff approached Sixty-first street, he attempted to make a left turn, when the collision occurred between the plaintiff’s van and defendant’s truck, which is the subject matter of this suit.

As a result of the collision, plaintiff was thrown to the pavement, suffering concussion of the brain; multiple contusions over his face and body, compound fractures of both bones of his left leg; fracture of his right humerus, and fracture of his right elbow; he was in the hospital 2 months. His physician testified that he had sustained injuries which were permanent in their character.

Upon a trial of the issues before a jury, a verdict was returned in favor of the plaintiff in the sum of five thousand dollars, motion for new trial was overruled, judgment was entered in the above amount, from which this appeal is taken.

It is argued on behalf of the defendant, that the court erred in permitting counsel for the plaintiff to ask the jurors on their voir dire whether or not any of them were employed by or financially interested in the Massachusetts Bonding and Insurance Company. Before interrogation of the jurors on their voir dire, some pretrial testimony was heard in the judge’s chambers, out of the presence and hearing of the prospective jurors. Mr. Goodman, one of plaintiff’s attorneys asked Mr. Costello, attorney representing defendant, whether the Massachusetts Bonding and Insurance Company was interested in the conduct of the case, and whether he was being paid for his service by that company and if they were interested in the final outcome of the judgment rendered. Mr. Costello answered that his firm represented the Massachusetts Bonding and Insurance Company and was handling the defense, but that he had not seen the policy and did not know whether said company would have to pay any judgment that might be rendered.

Mr. Goodman then stated under oath in substance, that he knew the Massachusetts Bonding and Insurance Company were conducting the defense, and were financially interested in the outcome of the case; that it had a policy covering defendant; that it was subject to payment of all or part of any judgment rendered in the case, that he had talked with Mr. Seeley, agent for said company, and that he desired to ask the question of the panel for the purpose of exercising his right of challenge on the voir dire, if any member of the panel or member of the jury had any financial interest, either themselves or their close relatives, in the said company.

Mr. Costello, then made the statement, under oath, in substance; that he was one of the attorneys representing the defendant, that the Massachusetts Bonding and Insurance Company, which he represented was not an Illinois corporation, and had no officers or stockholders in Bast St. Louis, or in St. Clair county; that its offices for the district were in St. Louis; that none of the agents of said company were on the jury panel; that said company carried the insurance on the truck in question, involved in the instant case; that said company might have policyholders in East St. Louis, but that a judgment could not affect them, as it was an old line company and the policyholders were not subject to assessment.

During the selection of the jury this question in substance, was propounded to each four of the prospective jurors, “Do you own any stock or are you employed, or have you been employed, or any close relative of yours employed, in the Massachusetts Bonding and Insurance Company” to which objection was made by defendant, and overruled by the court. The action of the trial court in permitting counsel for plaintiff to interrogate jurors in this manner is urged as error.

Substantially the same procedure, as to pretrial matters, was followed in the case of Smithers v. Henriquez, 368 Ill. 588, and substantially the same question was propounded to the prospective jurors in that case, as in the instant case, except that in the Smithers case an affidavit was filed, setting forth the facts with reference to the interest of the insurance company. In that case the court held that while the filing of an affidavit is commendable practice in such cases, it is unnecessary, as is the preliminary determination of the right to question the jurors as to their qualifications.

In that case there is a thorough and able review of the cases in this State and other States upon this question. There the court said, “It is manifest, in all the cases on the subject, that to require a reversal, the examination must be such as to show a prejudice to the rights of the defendant. It is to he remembered that plaintiff’s right to an impartial disinterested jury is equal to that of the defendant to have an examination of the jury free from prejudice to his interests. There can be no difference in a court of justice between the rights of litigants to a fair trial, and, if before a jury, that it be impartial and unbiased.” Smithers v. Hen-riquez, supra.

The record in the instant case does not show the employment of any subterfuge to inform the jury that an insurance company was defending the suit or any other improper motive or conduct on the part of plaintiffs counsel. Furthermore, it does not appear that the amount of the verdict considering the seriousness of plaintiff’s injuries, or the conflict in the testimony indicate the examination of the jurors had any prejudicial effect.

It is contended on the part of defendant that the plaintiff was guilty of contributory negligence in failing to give the right of way at the time and place in question to the defendant. This was a question of fact for the jury. Lauer v. Elgin, J. & E. Ry. Co., 303 Ill. App. 200, 27 N. E. (2d) 315; Thompson v. Riemer, 283 Ill. App. 371; Carroll v. Krause, 295 Ill. App. 552, 15 N. E. (2d) 323; Pagenkamp v. Devillez, 80 F. (2d) 485; Thomas v. Buchanan, 357 Ill. 270,192 N. E. 215; Layton v. Ogonoski (Fourth District), 256 Ill. App. 461; St. Clair Nat. Bank of Belleville v. Monaghan (Fourth District), 256 Ill. App. 471.

The reviewing court will not disturb the findings of the jury on the issues of negligence and contributory negligence, reached under proper instructions, unless manifestly against the weight of the evidence. Mugaviro v. Chicago B. & Q. R. Co., 239 Ill. App. 544; Waitrovich v. Black, 254 Ill. App. 49; Chicago & Alton R. Co. v. Harrington, 192 Ill. 9. There was ample evidence upon which the jury might well find affirmatively that plaintiff was free from contributory negligence, and that defendant was guilty of such negligence, as to be the proximate cause of the injuries complained of.

Plaintiff testified that he was driving east on State street at about 12 miles per hour and when within 150 feet of Sixty-first street pulled over to the center of the cinders; that he slowed down to 5 or 6 miles per hour to let a Ford car going west pass him, put his hand out to indicate that he was about to make a left turn (as to which proposition he is not contradicted by any witness) and that defendant’s truck was 200 feet east when he was making his left turn. He claims he further slowed down for a pedestrian to pass and that he was driving 3 or 4 miles an hour when he was hit. He is corroborated in the main by the witness Walter Eiskant, who was riding in the cab of the moving van with him. He is also corroborated by the witness, Louis McClintock, who so far as can be determined from the record was a disinterested witness and apparently a careful observer. He was working at a filling station on the southwest corner of the intersection where the collision occurred. When asked on cross-examination, why he watched the van of the plaintiff, he answered that he had a habit of watching’ cars. Working at a filling station, he apparently had a very normal interest in motor vehicles. It is very likely that the jury placed great credence in the testimony of this witness, because of his disinterestedness, his apparent powers of observation, and his point of vantage to properly scrutinize the movements of the cars involved in this collision.

The driver of defendant’s truck, George Cook, testified that he was driving in a westerly direction behind the Ford car, which he had been following for sometime, that he was driving about 20 or 25 miles per hour, that he saw plaintiff’s van and particularly noticed it on account of it being a large obstacle coming from the opposite direction when it was about 150 feet from the intersection of Sixty-first street and State. His theory was that as the Ford car 'went by, plaintiff’s van hit the Ford, and then collided with his truck. The driver of the Ford, Wilson, testified for the defendant, that he heard a crash and a short interval thereafter felt his car give, which is hardly corroborative of the driver’s testimony. Mrs. Wilson, who was with him in the Ford testified that there was a crash and she felt their car give, and that the crash she heard was the crash of the two other cars, not theirs. This is corroborative of the testimony of the witness McClintock, to the effect that after defendant’s truck struck the plaintiff’s moving van, it hit the Ford.

The first vehicle to reach the crossing in the exercise of ordinary care, should have the right of way, and others should approach with sufficient care to avoid danger of collision. Rupp v. Keebler, 175 Ill. App. 619; Roth v. Lundin, 237 Ill. App. 456. There was sufficient evidence in the record to justify the jury in believing that plaintiff’s van was first at the intersection. Plaintiff estimated the defendant’s truck at 150 to 200 feet east when plaintiff reached the intersection to make the left turn. Eiskart placed the distance of the defendant’s truck at 150 feet when plaintiff started across the north slab on State street. McClintock testified that at the time plaintiff was turning, defendant’s truck was 250 feet away. The statute giving a vehicle approaching from the right, at an intersection, the right of way does not confer such right, regardless of the distance the approaching cars may be from the intersection. Darling & Co. v. Yellow Cab. Co., 238 Ill. App. 326; Salmon v. Wilson, 227 Ill. App. 286.

Upon this state of the record, we feel that the jury were fairly justified in reaching the verdict that they did, and this court is not inclined to substitute its judgment, for the verdict of the jury.

Objection is made by defendant to plaintiff’s first given instruction, to the effect that it stressed the fact that there was an issue of contributory negligence, and that the instruction as given might mislead the jury into believing that the burden of proving such contributory negligence was upon the defendant. We do not believe this instruction is subject to this objection because of its own phraseology, and certainly not when considered in connection with defendant’s given instruction number three, which correctly states the law, with reference to the burden of proof being upon the plaintiff to prove that he was in the exercise of due care and caution, for his own safety. It is fundamental that instructions are read as a series and if the charge as a whole correctly states the law, it is sufficient. Smith v. Illinois Power & Light Corp., 297 Ill. App. 358; Jones v. Esenberg, 299 Ill. App. 551. We believe that the jury was correctly instructed as to the question of the burden of proving contributory negligence, and would not be misled by this instruction.

Complaint is made by defendant, that plaintiff’s given instruction number two is bad because it supposedly does not limit the amount of damages that plaintiff would be entitled to recover to those shown by the preponderance of the evidence on the question of damages. The part of the instruction objected to reads, “The Court instructs the jury that if under all the evidence and other instructions of the Court, you should find the issues in favor of the plaintiff, then you will assess his damages by allowing him a sum of money which you find and believe from the evidence will fairly and reasonably compensate him for the injuries sustained by him as a direct result of the collision in question. . . .” We do not believe this instruction is susceptible of the broad interpretation given it by defendant, and that by it the jury were properly limited in the scope of their findings as to the assessment of damages.

Defendant’s refused instruction was properly refused by the court for the reason that it assumed the guilt of the plaintiff of contributory negligence, which was a controverted-fact, and as such a question of fact, for the jury.

We find no reversible errors in the record and the judgment of the lower court will be affirmed.

Affirmed.


text:
    Stefhan Stranak, Appellee, v. Katerina Tomasovic, Appellant.

      Opinion filed March 1, 1941.
    Beasley & Zulley, of East St. Louis, for appellant.
    T. S. Morgan, of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from the order of the city court of the city of East St. Louis, denying’ appellant’s motion to open up a judgment theretofore rendered against her in favor of appellee. For purposes of convenience Katerina Tomasovie, appellant, will be designated as defendant and Stefhan Stranak, appellee, as plaintiff.

On January 23, 1935, judgment by confession was entered against defendant, predicated upon a promissory note alleged to have been executed by her, November 10,1931, for the payment to plaintiff of the principal sum of $3,000, at 5 per cent interest, after maturity. Judgment was confessed in the sum of $3,475, which included $175, interest and $300, attorney fee.

The record discloses an execution issued upon said judgment on January 23, 1935, but no record of any service of this execution. Upon the service of an alias execution upon her on January 23, 1940, defendant 3 days later on January 26, 1940, filed her motion supported by affidavit to open up the confession judgment, to permit her to plead to the merits, and to vacate and set aside said judgment. Said affidavit set forth in substance that she was a widow, 56 years of age, 'that her mental faculties, including her eyesight had been enfeebled by prolonged illness; that she was unable to read or write the American language to any extent whatever; that she never borrowed any money from the plaintiff and was not indebted to him; that her husband died in July 1932, and a short time after her husband’s death plaintiff appeared and forced himself into her dwelling house, that he accused her of having told her friends and relatives that plaintiff was indebted to her deceased husband in the sum of $3,000. That she denied this, whereupon plaintiff insisted that she sign a paper to the effect that she was making no claim against plaintiff; that plaintiff threatened her with physical violence if she refused to sign said paper, and that in fear of bodily harm she scrawled her name thereon, in her native language; that she was never informed of a judgment note, until the service of the execution upon her on January 23, 1940, and that she immediately consulted counsel and presented her motion to the court at the earliest opportunity.

Plaintiff then filed a motion to overrule defendant’s motion to vacate the judgment and filed his affidavit in support thereof. This affidavit set forth in substance, that plaintiff agreed to loan defendant and her husband the sum of $3,000 and did lend it to them; that no note was given as evidence of that loan until after the death of the husband, although interest thereon was paid in his lifetime; that after the death of her husband, defendant signed and delivered the note. He denied the matters set forth in defendant’s affidavit, with reference to the claim that he accused defendant of having told her friends and relatives that he, the plaintiff, was indebted to her husband, and denies any threats or intimidation in the procuring of the note. Nothing is set forth in said affidavit with reference to any claim of laches or lack of diligence on the part of the defendant.

Both motions were set for hearing and defendant’s motion to open up the judgment and for leave to plead was denied by the court and from such order defendant prosecutes this appeal.

It is contended by counsel for plaintiff that neither the record presented on appeal in this court, nor the abstract thereof show any judgment, and that the appeal should therefore be dismissed. It is true that the record and the abstract do not set forth the original judgment obtained on the note in question, but this appeal is not from that judgment. This is an appeal from the judgment of the court in overruling the defendant’s motion to open up the judgment and for leave to plead to the merits. This order does appear in the record and is abstracted. In such case the court has jurisdiction to entertain the appeal. Jefferson Trust & Savings Bank v. W. Heller & Son, Inc., 280 Ill. App. 399.

It is also contended that there was no showing of proper diligence on the part of the defendant. A proper showing may be made by affidavit to account for delay in making application to vacate or stay proceedings under a judgment entered by confession. Hannan v. Biggio, 189 Ill. App. 460.

Where it is made to appear that a note upon which a judgment has been taken by confession was executed in the belief that some other document, not a note, was being signed, leave to plead should be allowed upon due application. Funk v. Hossack, 115 Ill. App. 340. The defendant, by her 'affidavit made the claim that the paper that was presented to her for her signature, was represented not to be a note, but something far different in its legal aspect. She affirmatively showed due' diligence, when knowledge came to her that this was a note, and a judgment had been entered. Her affidavit states that she first knew of the existence of the judgment on January 24, 1940, when she was served with execution; that the following morning she consulted her attorney, and on the 26th day of January, 1940, filed her motion to vacate the judgment. Her claim of fraud and misrepresentation is contradicted by the plaintiff in his counter-affidavit, but there is nothing therein set forth to contradict or deny the showing of due diligence upon the part of the defendant, which is the proper office of a counter-affidavit in a case of this kind. Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510.

The general rule is that on motion to open a judgment entered by confession and for leave to defend, the question of -a meritorious defense is of much more importance than the question of defendant’s diligence or the lack of it. Automatic Oil Heating Co. v. Lee, 296 Ill. App. 628; Mason v. McNamara, 57 Ill. 274; Elaborated Ready Roofing Co. v. Hunter, 262 Ill. App. 380.

When, on the application of a defendant to open a judgment by confession and permit him to defend, the affidavits show that his defense, if sustained, would be a good one, and that a question is presented which should be submitted to a jury, the court should set aside the judgment and permit the defense to be made. Pitts v. Magie, 24 Ill. 610.

Counsel for plaintiff contend that there is no showing of want of consideration. The affidavit positively states that defendant never borrowed any money from plaintiff and received no property from him. We believe that the affidavit was sufficient to show a meritorious defense, and one that should be submitted to a jury for determination.

The affidavit filed by plaintiff was ostensibly in support of plaintiff’s motion to overrule the motion for defendant to vacate the judgment, but was obviously intended as a counter-affidavit to contradict the affidavit of the defendant, and present an issue of fact for the determination of the judge. The question of considering counter-affidavits on a motion to set aside a judgment taken by default has frequently been before the courts of this State, and said courts have uniformly held that counter-affidavits should not be considered on questions of fact raised on the merits of the case; that these were questions the parties had the right to have passed on by the jury. Mendell v. Kimball, 85 Ill. 582; Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510; Mutual Life of Illinois v. Little, 227 Ill. App. 436; Continental Construction Co. v. Henderson County Public Service Co., 227 Ill. App. 43; Walrus Mfg. Co. v. Wilcox, 303 Ill. App. 286.

We are of the opinion that the court should have allowed defendant’s motion. The judgment is therefore reversed and the cause remanded with directions to allow the motion to reopen the judgment, and for leave to plead to the merits.

Reversed and remanded with directions.


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    E. W. Dressor, Appellee, v. Charles Baldwin et al., Appellants.

      Opinion filed March 1, 1941.
    O. C. Smith, of Benton, for appellants.
    Curtis E. Smith, of Benton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Suit was commenced in 1935, in the circuit court of Franklin county to foreclose a mortgage, brought by E. W. Dressor, appellee, hereinafter designated as plaintiff, who was the mortgagee, against Charles Baldwin, appellant, hereinafter designated as defendant, and Emma L. Baldwin, his wife, mortgagors, and the receiver of the First National Bank of Christopher, Illinois, holder of a second mortgage upon the same lands and other lands. There was subsequently a decree and master’s sale of the property therein involved.

The holder of the title to the property after the foreclosure sale was Gr. J. McCune, as trustee; the plaintiff E. W. Dressor, having died after bidding in the property at the sale.

Emma L. Baldwin, the wife, seems to have died before service could be had upon her, leaving surviving her, her husband Charles Baldwin, and five adult children. Baldwin appears to have continued to live upon the property, paying rent to McCune.

In April, 1939, plaintiff demanded possession of the premises under the master’s deed; the defendant refused to surrender possession and plaintiff petitioned the circuit court for a writ of assistance under the master’s deed. The defendant resisted the petition for the writ of assistance and filed a motion, to vacate and set aside the decree and subsequent orders, setting forth therein among other things, that Emma L. Baldwin, was a mortgagor of the premises; that she never assigned or conveyed or abandoned her equity of redemption; that she died, intestate, leaving surviving her five adult children; that said children were not made parties defendant to the complaint filed for the purpose of foreclosing the mortgage.

Said motion was predicated upon the ground that the above errors in fact were committed in said proceeding which, by the common law, could have been corrected by the writ of error coram nobis. The only specific relief prayed for in said petition, was, “that on a final hearing hereof that said original decree and said proceedings in this cause be vacated and set aside as herein specified. ’ ’ Upon a hearing said motion was denied by the court and dismissed for want of equity.

The theory upon which said motion was filed, was that it came within the provisions of section 72 of the Civil Practice Act, which provides, ‘ ‘ The writ of error coram nobis is hereby abolished, and all errors in fact," committed in the proceeding of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. ...” It seems fundamental to us, that any motion to correct errors should not only point out the errors of fact committed, but affirmatively show in the prayer for relief in what way those errors could, as a matter of fact, be corrected. In the case of Frank v. Newburger, 298 Ill. App. 548, 19 N. E. (2d) 147, cited in defendant’s brief, several defendants therein filed their verified motion under section 72 of the Civil Practice Act, to vacate and set aside a decree of foreclosure, and all orders entered subsequently; and the prayer therein was that defendants be given leave to defend the amended bill of foreclosure.

In the instant case, the only prayer of the petition is that the decree and subsequent orders be vacated and set aside. We believe the petition insufficient, inasmuch as it did not specifically pray for the correction of errors previously pointed out. And nowhere in the presentation of defendant’s case in this court, is it pointed out, wherein the errors complained of in the original decree may be corrected.

Rule 9, of the rules of this court provides, ‘ The concluding subdivision of the statement of the case shall be a brief statement of the errors or cross-errors relief upon for reversal. ...” In the concluding subdivision of the statement of the case for the defendant, we find the following:

1. That errors of fact were committed on the hearing of said foreclosure suit that could have been corrected by the writ of error coram nobis and can be corrected by this motion under section 72 of the Civil Practice Act.

2. That if the fact that when mortgagor, Emma L. Baldwin died, she left surviving her five children all residing in Franklin county and three of them residing on the premises involved had been made known to the court said decree could not have been made.

3. That if the fact that all of the land described in the second mortgage had not been ordered sold or sold pursuant to said decree had been made known to the court the deficiency decree could not have been made.

4. That this motion was made within the time and manner provided by section 72, Civil Practice Act, and is the proper remedy by which to correct said errors of fact.

The original decree of foreclosure is not made a part of this record. The first three of the four supposed assignments of errors as set forth above, complain of errors in the original decree, which is not before this court. The fourth argues that the motion was made within the time and manner provided by section 72, Civil Practice Act, and is the proper remedy by which to correct said errors of fact. This appeal is not from the original decree of foreclosure of November 20,1935, but from the order of court of March 23, 1940, denying the petition to vacate the decree, and dismissing same. It does not appear from the above-alleged assignments of error wherein the trial court erred in passing upon this motion.

The assignment of errors on the record is not a mere form that will be considered waived, if not objected to, but is one of substance so that if the Appellate Court were to inadvertently reverse a judgment in a case where no error had been assigned, the judgment of reversal would be set aside upon motion. Rosin v. Wilde, 80 Ill. App. 58; Jesse French Piano & Organ Co. v. Meehan, 77 Ill. App. 577; Lang'v. Max, 50 Ill. App. 465; Ditch v. Sennott, 116 Ill. 288. "While under our rules it is not necessary, that the errors be assigned on the record, they should be alleged at the conclusion of the statement of the case. That assignment of errors performs the office of a complaint in this court. Cass v. Duncan, 260 Ill. 228. At the conclusion of this argument, counsel for defendant say that the court below erred in denying the motion. Our courts have held that assignments of error may not be based, merely upon argument of counsel. McNeil & Higgins Co. v. Neenah Cheese & Gold Storage Co., 290 Ill. 449; Odin Coal Co. v. Industrial Commission, 297 Ill. 392. We are of the opinion that there is no sufficient assignment of errors before us, upon which to determine this cause.

We are asked to reverse the order of the lower court, and that the defendant have all the relief prayed for by him in said motion. At no place in the motion, nor in this court is there any other relief prayed for, other than to vacate and set aside the foreclosure decree, which is not before us, and which would serve no useful purpose.

While it is true that the Civil Practice Act should be liberally construed, yet there are certain fundamental principles that have been established as landmarks for the guidance of litigants prosecuting appeals, that must be adhered to. This court should not be asked to guess at errors alleged to have been committed in the trial court, nor at the remedy sought either in the lower court or in the Appellate Court. For the reasons set forth.above, the order of the lower court will be affirmed.

Affirmed.


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    Asalee Jackson, Appellee, v. Scerial Thompson, Trustee in Estate of W. O. Brantley, Appellant.

      Opinion filed March 1, 1941.
    Wheatley & Combe, of Harrisburg, for appellant.-
    K. C. Ronalds, of Harrisburg, and D. L. Duty, of Marion, for appellee; Chas. D. Winters, of Marion, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Appellee, Asalee Jackson (hereinafter designated as plaintiff) brought an action for damages, in the sum of $6,000, in the circuit court of Saline county against appellant, W. O. Brantley, doing business as Checker Cab Company (hereinafter designated as defendant) for personal injuries which she claims to have sustained while riding as a passenger in a taxicab owned by the'defendant, and operated by a driver, on December 12, 1938. The one count of the complaint charged a negligent operation of the taxicab by the driver and a resultant injury to plaintiff.

The driver of the taxicab, operating in the city of Harrisburg, picked up the plaintiff as a passenger, for hire, at the Horning Hotel in that city, -to be conveyed to her home in the northeast part of that city. She seated herself in the back seat of the taxicab, and asked the driver to take her home. Whereupon, he asked her if she was in a hurry, as he wanted to deliver a book in the southwest part of the city, to which inquiry she replied that she was not in a hurry and that it was all right to deliver the book. After driving some blocks, the driver delivered the book and started to take the plaintiff to her home. As he turned a corner and came into Vine street which runs in a northerly and southerly direction, he was driving north. In front of a Kroger store, on the east side of Vine street, near the intersection of that street with Locust street, an automobile belonging to John Henninger was parked parallel with the street. As the driver drove his taxicab around this parked car, a Chevrolet automobile being driven south by Tony Drutis, whom the evidence showed to be intoxicated at the time and that he had been zigzagging from one side of the street to the other, collided with the taxicab and plaintiff sustained injuries. Her physician testified that, as a result of said accident plaintiff had sustained a depression in the region of the fifth, sixth and seventh costal sternal junctures, a lagging in the left side of the chest and rales in the left axillary region, and had subsequently developed tuberculosis. He further testified that she had sustained injuries which in his judgment would be permanent.

Upon a trial before a jury, verdict was returned in favor of plaintiff in the sum of $5,000. Motion for new trial was denied, and from the judgment of the trial court, defendant prosecutes this appeal.

The three principal errors assigned and argued by defendant are that certain evidence offered by plaintiff and admitted by the court, over defendant’s objection, was inadmissible and erroneous; that the negligence of the driver of the Chevrolet car, and not that of the defendant’s driver was the proximate cause of the injury, and that the court erred in the giving of certain instructions requested by plaintiff.

It is strenuously contended by defendant that what was said and done up to the time of the accident, as between the plaintiff and the taxicab driver, was not admissible as a part of the res gestae, for the reason that it did not characterize, explain or have a tendency to establish a breach of duty of the defendant. We are inclined to believe that both plaintiff and defendant in their presentation of this phase of the case, took this part of the evidence too seriously. We are not inclined to agree with the reasoning of the plaintiff’s argument in this court, that the driving around for the period of 30 minutes, as claimed, taking into consideration the weather, the relation of passengers and carrier, characterized the conduct of the driver as careless and negligent, which the jury would have a right to consider. There was no allegation of that in the complaint. The record does not disclose whether or not this position was taken by the plaintiff in the trial court in argument before the jury. When objection was made to the admission of this testimony, the court in passing upon it, said that probably the only object was to show the length of time in getting from the hotel to the place of the accident. With that theory we are inclined to agree. The plaintiff’s testimony was to the effect that she left the hotel at about 5 minutes after 9 o’clock, and that the distance from the hotel to her home was 7 blocks. Other witnesses to the accident placed the time of the collision at between 10 and 10:30. Plaintiff was entitled to show the occasion for the delay, so that her testimony be not discredited, as to other material matters.

If the act, declaration or exclamation is so intimately interwoven or connected with the principal fact or event which it characterizes as to be regarded as a part of the transaction itself, and if it clearly negatives any premeditation or purpose to manufacture testimony, it is properly admissible as a part of the res gestae. Charles E. Reed & Co. v. Industrial Commission, 328 Ill. 345, 352; George J. Cookie Co. v. Fred Miller Brewing Co., 316 Ill. 46, 51; Lander v. People, 104 Ill. 248.

The court is constrained to hold that the things said and done, after the relationship of passenger and carrier were assumed, and before the accident, were admissible, particularly as being explanatory of the delay and not for the purpose of showing some negligence not alleged in the complaint. Even assuming that it was improperly admitted in evidence, we cannot see how it could have prejudiced the cause of the defendant sufficiently to be reversible error.

It is argued at considerable length by defendant that the proximate cause of the injury to the plaintiff, was not the negligent act of defendant, but the negligence of the driver of the Chevrolet car. We are not inclined so to hold. Plaintiff testified that after the cab turned the corner to come into Vine street, it was being driven in the middle of the street. The testimony of Eichard Milligan, who was a passenger in the Chevrolet car and a witness for defendant was to the effect that when the cars came together, they were both out in the middle of the street and that the collision occurred when the defendant’s driver “whipped around” the parked car. Howard Dooley, another passenger in the Chevrolet car, also one of defendant’s witnesses, testified at the time of the collision, both cars “were near about the middle of the street,” and that the collision took place when the taxicab “cut around” the parked car.

Earl Smith, the driver of the defendant’s taxicab testified, on behalf of the defendant, that he first saw the other car, when it was somewhere near 50 or 60 feet from the intersection of Locust and Vine streets, and that the said car was taking all the road, zigzagging from one side of the street to the other. Certainly he was put upon notice that a dangerous situation existed, involving the safety of his passenger, but instead of staying close to the curbing, he attempted to pass around the Henninger parked car, which involved his getting out into what might be termed the danger zone of the street, where the Chevrolet was careening from one side to the other.

The proximate cause of the injury was a question of fact for the jury, and they, under the evidence could very well have reached the conclusion that the negligent conduct of the taxi driver was one of the proximate causes of the injury to the plaintiff concurring with the negligence of the driver of the Chevrolet car, which in combination caused the injury complained of. Votrian v. Quick, 271 Ill. App. 259; Thomas v. Chicago Embossing Co., 307 Ill. 134. We do not believe that the verdict of the jury was contrary to the manifest weight of the evidence.

Complaint is made by defendant, that instructions numbered 1, 2, 4 and 5 are erroneous, since they, so it is claimed, state abstract propositions of law, and since they allegedly declare a duty much broader than the breach of any duty alleged in the complaint. Instruction number 1 does not state any abstract proposition of law, inasmuch as there is a direct application made to the negligence charged. Objection is also made with reference to this instruction that the jury were therein informed as to the amount of the ad damnum, and cautioned them that they were not to award damages in excess of that amount, and is erroneous for that reason. It is only where a statement that the damages awarded must not exceed a certain amount is repeated in each of a series of instructions, or there is something in the instruction which tends to lead the jury to understand that they should, or may be allowed to award the full amount so claimed that such an instruction could be held to be reversible error. Lake Shore & M. S. Ry. Co. v. May, 33 Ill. App. 366; Calumet Elec. St. R. Co. v. Van Pelt, 173 Ill. 70. The instruction in the instant case does not offend in that regard. Instructions number 2 and 4 of plaintiffs given instructions states an abstract proposition of law, as to the duty of a common carrier, but by instruction number 3 requested by defendant and given by the court, the jury were instructed that before plaintiff could recover she must establish by the greater weight of the evidence that the defendant was guilty of the negligence charged by the plaintiff and that such act of negligence, if any was the direct and proximate cause of the injury to the plaintiff, if any.

It is fundamental that instructions should be considered as a series in determining if the jury has been correctly advised. Baker v. Baker, 202 Ill. 595; Mobile & O. R. Co v. Vallowe, 115 Ill. App. 621, aff’d 214 Ill. 124. Instruction number 5 of plaintiff’s instructions makes a direct application to the facts, and is not in the abstract.

We believe instructions 6 and 7, complained of by defendant fairly state the law of the case.

The court must therefore conclude that there is no prejudicial error in the record which justifies a reversal and the evidence fairly tends to sustain the judgment appealed from. The judgment of the lower court, will therefore be affirmed.

Affirmed.