text:
    Mary T. Duffy, Appellant, v. Fort Dearborn Casualty Underwriters, Otherwise Known as Fort Dearborn Casualty Underwriters of Chicago, Appellee.
    Gen. No. 36,028.

      Opinion filed March 29, 1933.
    Newby, McDonald & Burditt, for appellant; George M. Burditt, of counsel.
    Murphy O. Tate, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action by the plaintiff to recover under the terms of a policy of insurance issued by the defendant to Harry J. Corbidge, insuring him against loss sustained on account of injuries to others by reason of ownership, maintenance, or use of a certain automobile, in an amount of $5,000. An action was instituted by the plaintiff against Corbidge to recover damages from the defendant for personal injuries growing out of an automobile accident. Upon a trial, the court entered a judgment for $5,000 against Corbidge. The trial in the instant case was before the court without a jury, and after a hearing, the court found for the defendant and entered judgment upon the finding. From this judgment the plaintiff appeals.

The declaration consists of four counts, to which the defendant filed a plea of the general issue, together with a special plea that Corbidge failed to co-operate with the defendant, and to aid in the preparation and trial of the original case filed by the plaintiff.

No point is made by the parties as to the sufficiency of the pleadings. It is stipulated by the parties that the defendant issued the policy of insurance; that the premium therefor was paid, and that the policy was in force at the time of the accident on November 26, 1928; that the plaintiff filed her suit in the superior court against Corbidge, the insured, as a defendant, and on November 19, 1930, recovered a judgment in the sum of $5,000; that the defendant company defended the action, and that Tate appeared as the attorney for the defendant in the present action, and also appeared for the defendant in the personal injury suit.

The policy provides, in substance, that the Fort Dearborn Casualty Underwriters agreed to indemnify Harry Corbidge, who resided at 9420 Throop street, Chicago, Illinois, from November 22, 1928, to November 22, 1929, subject to the provisions of the policy, against any loss sustained by him for damage on account of bodily injuries actually suffered by any person, by reason of the ownership, maintenance, or use of the Chevrolet Coach described therein, to the extent of $5,000 for the death of one person, and $10,000 for more than one person.

The insurer contracts to defend on behalf of the assured any action brought against the insured to enforce a claim, and the policy further provides that if an execution is issued upon a judgment against the insured and returned unsatisfied, an action may be instituted against the underwriters for the amount of the judgment.

One of the conditions of the policy is in part as follows :

“Assured shall aid said Underwriters in effecting settlements, securing information and evidence, the attendance of witnesses and the procurement of appeals or like proceeding; the Assured to furnish an acceptable appeal bond when in the opinion of the Underwriters an appeal is necessary or desirable, the Underwriters to pay the premium for securing said bond, and the Assured shall not voluntarily assume any liability or interfere in any negotiations for settlement, or in any legal proceeding, or incur any expense except at his own cost, without the written consent of said Underwriters.”

The following facts appear from the evidence offered by the plaintiff: The institution of the original action, the filing of the declaration, the verdict of the jury finding Corbidge guilty of wilful and wanton negligence, the entry of judgment, the issuance of an execution which was returned unsatisfied, and the schedule filed with the sheriff of Cook county by Corbidge, which does not show any property subject to levy.

It further appears from the testimony of Corbidge that he was living at 9420 Throop street when the policy was issued on" November 22, 1928; that he moved from there in August, 1929, to 7601 Evans avenue, where he lived until April, 1930, when he moved to 10829 Eggleston avenue, where he lived for six months before moving to 134 West 108th place, his present address in Chicago; that on November 26, 1928, he was driving a Chevrolet car at 79th and Vincennes avenue when the accident happened to the plaintiff; that he made a statement about the accident to the agent of the defendant in the instant case, and that he subsequently received a letter from the defendant dated February 5, 1929, addressed to him at 9420 Throop street, signed by J. W. Lamb, Fort Dearborn Insurance Company, requesting him to call at the office within five days “in order that we may discuss with yon the accident occurring November 26, 1928,” and that he went to the office of the company, saw J. W. Lamb, and in answer to his questions told him how the accident happened; that he did not have any witnesses ; that he could not get the names of any; that he had tried but they would not give their names; that he assisted the woman who was injured to the hospital-, to all of which Lamb replied, “That is pretty tough, but we can’t win all the time”; that Corbidge then told Lamb he no longer had the machine, and was advised by Lamb that he could turn in the policy, which he did, and took a receipt therefor. This receipt appears to bear the signature of Lamb.

It further appears from Corbidge’s testimony that a summons was served on him a few days before New Tear’s Day, 1930; that he took the summons to the insurance company’s office, receipt of which was admitted by the defendant; that he was at the same office he had been to before; that he saw a girl sitting at the desk and asked her what the summons was for, saying that he thought the case was settled, and she replied, “No, it is still pending,” and that she would give the summons to one of the lawyers; that one of the lawyers asked him why he did not bring the summons sooner, to which Corbidge replied that he had a couple of days’ work. He also testified that he told the lawyer he had moved, the lawyer saying, “Well, give your address to the girl”; that he then turned around and gave the address of 7601 Evans avenue; that he did not receive any further communication from the defendant ; that in March, 1930, he went back to the office of the company, again saw the young lady at the desk, asked how the case was progressing, whether it had been in court, to which she replied that it had not, that the lawyers were taking care of it, and that at that time he was still living at 7601 Evans avenue; that when the execution was served upon him he took it over to the insurance company and filed a schedule in the sheriff’s office; that at the insurance company he saw the same young lady he had seen before, and asked her, “How come I wasn’t notified?” to which she replied, “Maybe they didn’t need you.”

It also appears from the evidence that C. T. Driscoll, who appeared as the plaintiff’s attorney in the original action, testified that in order to comply with the terms of the policy it was necessary for him to locate Corbidge so that an execution could be served upon him personally; that he called at Throop street, and at that address he was informed upon ringing the bell that Corbidge had moved to 7601 Evans avenue. Upon an investigation he found that Corbidge had moved to Eggleston avenue and then to 134 West 108th place, where he was finally located. All this occurred within one month after the judgment was entered in the personal injury litigation.

It also appears as part of the evidence of the plaintiff that the claim had not been paid, and that the plaintiff received a letter dated February 21, 1929, addressed to her by the Fort Dearborn Insurance Company, stating in part: “Would advise you that we have now fully completed our investigation of the case and are therefore in a position to take the matter up with you for discussion at any time you can call at our office for that purpose.”

In contrast to this evidence offered by the plaintiff, it appears that Tate, an attorney, appeared on behalf ■of the defendant insurance company, and entered his appearance on behalf of the defendant Corbidge in the personal injury action, and that he filed pleas for the defendant Corbidge in the original action; that the personal injury litigation was upon the trial call on November 15 and 16, 1930; that N. A. Long, an investigator employed by Tate, the attorney, was to get in touch with the defendant so that Tate could prepare the case for trial. It further appears from the evidence offered by the defendant that on November 17, the day before the case was actually reached for trial, Long reported his inability to find Corbidge; that Long called at 9420 Throop street, which was the only address they had in the company’s file, and found that Corbidge no longer lived at that address, and made inquiry in the neighborhood, but could not find Corbidge. Just what investigation was made by Long is not clear from the record. It does not appear that he called at the address, 7601 Evans avenue, which was left by Corbidge with the girl in the office of the defendant after the accident. The attorney, upon receipt of the information from Long that he was unable to find Corbidge, sent a telegram notifying Corbidge that the Duffy case was on trial, and that it was necessary for Corbidge to report at the lawyer’s office at once if he expected protection under the policy in question. It is singular that this telegram should have been sent to an address where, upon investigation by the company’s investigator, Corbidge could no longer be found. There is no evidence that the telegram sent by the company was forwarded in an effort to locate Corbidge. It is the opinion of the court that this telegram was but an idle gesture, and that the investigation made by the investigator was not made in good faith; that, in fact, the good faith appears to have been altogether on the part of Corbidge, who endeavored to comply with the terms and provisions of the insurance policy. He notified the company of the accident, and of the lawsuit; he appeared and made a statement of the accident after receipt of a letter from the company, and even called several times to inquire what progress was being made in the litigation.

In cases of this kind where the question is one of fact, the rule is that the court must determine from the facts not only the good faith of the insured, but also that of the casualty company, and in the instant case it is apparent that Corbidge did all that was required of him under the provisions of the policy.

In considering the evidence, we believe that the trial court erred in finding the issues for the defendant upon what appears to be against the manifest weight of the evidence.

The judgment is reversed- and the cause remanded for a new trial.

Reversed and remanded.

Wilsou, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    Thomas B. Van Auken, Appellant, v. George A. Barr and Hartman Furniture and Carpet Company, Appellees.
    Gen. No. 8,586.
    Opinion filed February 23, 1933.
    Rehearing denied May 2, 1933.
    John Finney, for appellant; James W. Faulkner, of counsel.
    Donovan, Bray & Gray and Barr & Barr, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellant, Thomas-B. Van Auken, started suit against the appellees in the circuit court of Will county for injuries that he- alleges were caused by the negligence of the appellees.

The declaration consisted of two counts which are in substance as follows: “The first count of the declaration is a plea of trespass on the case, and avers that the defendant, George A. Barr, was on the first day of November, A. D. 1929, and for some time prior thereto, the owner of certain property described in the declaration, and that on the said date and for some time prior thereto was the owner of certain leasehold interests in other property described in the declaration ; that under the terms of said lease, the said defendant, George A. Barr, was given full power and authority to remove all buildings then upon the leased premises, and to erect other buildings thereon; that prior to the leasing of the above described property by the defendant, George A Barr, to the defendant, Hartman Furniture and Carpet Company, all of said premises were occupied by brick buildings three stories in height; that said buildings were located on Jefferson Street, one of the principal streets of the City of Joliet, which was on the date aforesaid and for many years prior thereto, extensively used by the traveling-public, thousands of persons passing said premises daily.

“Plaintiff further avers that after the leasing by the defendant, George A. Barr, to the Hartman Furniture and Carpet Company, and prior to the date aforesaid, the Hartman Furniture and Carpet Company through their contractor or contractors, with the knowledge and consent and permission of the defendant, George A. Barr, began to raze the building then occupying said premises, preparatory to the erection of the present three-story brick building now located on said' premises, all of which was done with the knowledge, permission and consent of the said George A. Barr; that it became the duty of the defendants, and each of them, to exercise reasonable care to pro-' tect persons from injuries from materials falling- from said building during- the process of the razing- or erection of the same while using said streets in the exercise of reasonable care for their own personal safety ; that the defendants, and each of them, failed to do so, and while, on to wit: the date aforesaid, the said plaintiff was walking along said public street in the exercise of reasonable care for his personal safety, a brick falling from said building struck the plaintiff upon the head with great force and violence and in consequence thereof, he suffered damages.

“The second count of the declaration is in trespass and is the same as the first count with the exception that in charging the duty of the defendants, it avers that it became the duty of the defendants, and each of them, to prevent material from falling from said building during the razing and erection of the same to and upon the public street, to the injury of persons using the same in the exercise of reasonable care for the persons’ safety, that the defendants failed in this duty, and the plaintiff, while lawfully walking along said street, in the exercise of reasonable care for his personal safety, a brick falling from said building, struck the plaintiff with great force and violence, in consequence of which he was injured, damaged to the extent of Ten Thousand ($10,000.00) Dollars.”

To this declaration the defendants filed a general and special demurrer, which the court sustained. The plaintiff elected to stand by his declaration, and the court dismissed the suit at plaintiff’s costs. From the ruling of the court and dismissal of the suit, the plaintiff brings the case to this court for review.

• The declaration alleges that George A. Barr was the owner of the premises and leased them to the Hartman Furniture and Carpet Co.; that they employed a contractor to raze the three-story brick building on the premises; that the building was situated on a street where thousands of people passed by daily; that while the plaintiff was passing the building, a brick fell off of the wall and injured the plaintiff; that the brick was caused to fall by the building being razed.

It is the contention of George A. Barr that the declaration shows on its face that the work was being done by an independent contractor over whom Barr had no control, and, therefore, Barr would not be responsible to the plaintiff for damages that he might have sustained by reason of the building being razed. The appellant concedes this to be the rule of law, but shows a well known and definite exception, viz.: ‘ ‘ That when work is dangerous of itself, or as it is often termed ‘inherently or intrinsically dangerous unless proper precautions are taken, ’ the owner of the property cannot evade the law by employing an independent contractor to do the work.” In the case of the Sherman House Hotel Co. v. Gallagher, 129 Ill. App. 557, the court in discussing the liability of the independent contractor said: “The general rule is stated to be that the principle of respondeat superior does not extend to cases of independent contractors where the party for whom the work is done is not the immediate superior of those guilty of the wrongful act and has no control over the manner of doing the work under the contract. This general rule, however, does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skilfully performed. In such cases the party authorizing the work is justly regarded as the author of the resulting mischief whether he does the work himself or lets it by contract.” In vol. 39 of Corpus Juris, page 1331, the rule is laid down as follows: “A very important exception to the general rule exempting the contractee from liability for injuries caused by the negligence of an independent contractor or his servants is that, where the work is dangerous of itself, or as often termed is ‘inherently’ or ‘intrinsically’ dangerous, unless proper precautions are taken, liability cannot be evaded by employing an independent contractor to do it.” In the case of City of Joliet v. Harwood, 86 Ill. 110, the City of Joliet had let a contract for the building of a sewer. In doing the excavating work it was necessary to blast out the rock. In blasting the rock the property of Harwood was damaged. He brought suit against the City of Joliet for the damage he had sustained. The City of Joliet defended on the ground that they had let the contract to a man named O’Riley, and that he was an independent contractor; therefore, the city was not liable. In their opinion the court say: “It is insisted that O’Riley, the contractor, is responsible for this injury, and not the city; and this upon the position that where public work is done by an independent contractor, with the city, the doctrine of respondeat superior does not apply. Dillon, in his excellent work on" Municipal Corporations (sec. 792), says: ‘Such is the general rule; but it is important to bear in mind that it 'does not apply where the contract directly requires the performance of work intrinsically dangerous, however skilfully performed. In such case a party authorizing the work is regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract. ’ In this case the work which the contractor was required by the city to do was intrinsically dangerous, however carefully or skilfully done. The right of recovery in this case does not rest-up on a charge of negligence on the part of the contractor; it rests upon the fact that the city caused work to be done which was intrinsically dangerous.”

Counsel for appellees have cited no authority that in our opinion controverts this exception to the general rule, and it is our opinion that the exception is so permanently established as to become the law in this State.

The question then arises: Is the razing of a brick building so intrinsically dangerous that this court can say that this declaration charges a state of facts that would bring the appellant within the exception above stated? We know of no way to tear down a brick wall that would not be dangerous to people walking along the same unless there was precaution taken to protect the public from the pieces of bricks falling during the operation. The only way to take down the walls of a brick building is in some way to loosen the bricks, and whatever way it is done there is danger that the brick may fall from the wall. If it is in a place where people are passing by, the falling bricks are extremely liable to hurt some one.

From an examination of this declaration it is our opinion that it states a good cause of action and the court erred in sustaining the demurrer to this declaration. The judgment of the circuit court of Will county is hereby reversed and the case remanded with directions to overrule the demurrer.

Judgment reversed and remanded with directions.


text:
    Harry A. Howard, Sr., Administrator of the Estate of Harry A. Howard, Jr., Deceased, Appellee, v. City of Rockford, Appellant.
    Gen. No. 8,593.

      Opinion filed February 23, 1933.
    Rehearing denied May 2, 1933.
    Wilbur E. Johnson and David D. Madden, for appellant.
    Frank E. Maynard, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Harry A. Howard, administrator of the estate of Harry A. Howard, Jr., deceased, started suit in the circuit court of Winnebago county against the City of Rockford to recover damages by reason of the death of the plaintiff’s intestate, a boy seven years of age, which occurred on September 23, 1929.

An amended declaration of the appellee was filed February 27, 1932, which averred that the City of Rockford is the owner of certain described premises in the City of Rockford lying between Horseman street and Kilburn avenue; that the same has been used as a stone quarry for many years, leaving a deep hole on the premises; that this quarry is filled with water from underground springs and surface water and underground streams, the pool being more than a half of a city block in diameter and from 10 to 25 feet deep over a greater portion of the land; that this pool of water is close by and adjacent to Kilburn avenue and Horseman street; that about and around said pool were dwelling houses and from such dwelling houses the pool can be plainly seen; that quarrying is carried on and blasting of the stone -is carried on causing loud noises, all of which is attractive to children; that there has been built on the property a small pump house which stands out and over the water where the water is very deep, and attached to this pump house is a plank walk over the water, and so existed at the time of the drowning of the plaintiff’s intestate; that the edge of the pool is of stone with steep banks and that boys of tender age used the banks of the pool and the walk around this pump house in playing; that it was an attractive place for children to stand and throw sticks and stones in the water and to watch the shadows upon the water, and to play with sticks and poles upon the water and fish logs and boards out of the water, and that older boys used the plank walk for diving off of while in swimming.

The declaration further alleges that the plaintiff’s intestate had on several occasions played in and about the stone quarry, and prior to the day of his death had been attracted to the pump house, plank walk blasting, etc. That on September 23, 1929, the plaintiff’s intestate, aged about seven years and one month, was attracted to the pump house and quarry; that the City of Rockford knew that children, especially the plaintiff’s intestate, had been playing around the pump house on the plank walk; that children on previous occasions had fallen into the water and police had been called to assist in rescuing them; that the City of Rockford knew of the hazardous condition of the pool as a place for children to play; that it was the duty of the City of Rockford to protect and guard the pump house, pool and equipment by providing the place with a watchman; that the City of Rockford failed to provide any adequate fence or protection to keep small children out of the quarry, or out of the pump house and from the platform, but on the contrary allowed the children in the neighborhood to play in the pump house, and use the pond to swim in, float rafts, and to play in and about the pump house and upon the plank walk; that the plaintiff’s intestate on the day of his death was attracted to the pump house by a desire to play in the pump house, upon the walk, and to fish in and upon the pond; that while so playing the plaintiff’s intestate fell into the water and was drowned.

To this amended declaration the City of Rockford pleaded the general issue and a special plea to the effect that the appellee ought not to maintain said action against the defendant for the reason that the amended declaration to which the plea was filed was filed more than one year after the death of the intestate. The plaintiff filed a demurrer to this special plea of the appellant which Was sustained. The issues were submitted to the jury for trial, which found in favor of the plaintiff and assessed his damages at $3,000. Judgment was rendered on the same and the case was brought to this court on appeal.

The record shows that this body of water in question was created by and upon the property of the City of Rockford, the appellant, by a rock quarry extending below the water level, causing a pit to be filled with water. The body of water so created covered about a half a block in area on appellant’s property. This pool was surrounded on three sides by dwelling houses where many small children lived. It was in the dwelling house portion of the corporate City of Rockford. The pool was in no way guarded or fenced so ‘as to be inaccessible to, or to keep small children of the age of the plaintiff’s intestate from freely and easily going upon the property. There was no fence on two sides of the property. The evidence clearly establishes that the appellants through its officers had for many years known that small children from the age of four years to eight years and upwards repeatedly went upon this property, attracted there by the quarry, pool, and boards upon the water, buildings and other attractions alluring to their childish curiosity, and as a place to play. Police officers had been sent there by the city on numerous occasions at the request of citizens to guard the property or watch the children playing there, and rescue them from danger, but no one was employed regularly to protect the children from drowning. Among other things that attracted children to this place was a small building built upon the appellant’s property on the very edge of an abrupt ledge of rock adjoining the pool which had a temporary ^scaffold or platform on the west side of the same and extended out over the water of the quarry pool where the water was from 20 to 30 feet deep. This' scaffolding or platform was easily accessible to children of the age of the intestate as one could step upon the scaffold or platform from the ground; and upon the scaffold or platform small children were accustomed to play and fish with sticks in the water below.

This case was brought upon the theory of what is commonly called “attractive nuisances” or “turntable” cases. Under the issues as joined it became a question of fact for the jury to decide whether the proofs sustained the allegations of the declaration and whether the City of Rockford was negligent in maintaining an attractive nuisance on its property. Stedwell v. City of Chicago, 297 Ill. 486; Wolczek v. Public Service Co., 342 Ill. 482, 489.

There is little, if any, dispute in regard to the conditions that existed around the old quarry. The plaintiff in his declaration charges matters in his declaration that- have not been proven, but it is not necessary that everything charged in the declaration be proven. If there is enough proof to support the allegations in the declaration so the jury can say that the City of Rockford maintained an attractive nuisance dangerous to children of the age of the intestate, then the verdict should stand.

From an examination of the record it is clearly established that the pump house was built on the edge of this pool, and that there, was a walk or platform on the west side of it, and that this platform extended out over the edge of the water; that children had been accustomed to play on this platform and the City of Rockford had knowledge of this fact; and that Harry A. Howard, Jr., was attracted to this place, and that while upon the platform fell into the pool and was drowned. The question then arises: Do such facts create what is commonly called an “attractive nuisance?” In the Wolczek case (supra) our Supreme Court in discussing’ this rule of law, say: “The rule recognized in this State as to implied invitation is, that where the owner of the premises maintain a dangerous condition or thing of such a character that he may reasonably anticipate that children, who by reason of tender years are incapable of exercising proper care for their own safety, are likely, because of their childish instincts, to be attracted to the dangerous thing and thereby exposed to dangers, he is required to use reasonable care to protect them from injury, provided it is shown that such dangerous condition or thing is so located as to attract children from the street, playground or place where they have a right to be. Where such an agency is so located it constitutes an implied invitation to such children to come upon the premises and they are not, in law, considered trespassers. The rule does not apply where the owner maintains something for his own use which, though dangerous, would be found by such children only by going upon the premises as trespassers. In other words, to impliedly invite children onto the premises it is necessary that the dangerous agency, with its alluring and attractive character, be so placed as to attract the children there. ... If there is such an implied invitation to go upon the premises the child is not considered, in law, a trespasser but an implied invitee. Stated in other language, if the owner maintains an agency of such a character and in such a place that he, by reason of his knowledge of those facts and the facts of knowledge common to all concerning the habits of children, naturally and reasonable knows, or should know or anticipate, that children will probably be attracted onto the premises by that agency and will probably come upon his premises unless he warns them not to do so, such facts bring the case within the rule adopted in this and other States and constitute an implied invitation to children to do the thing which he should reasonably anticipate they are likely to do. Under these circumstances the owner is required to use reasonable care to avoid injury to such children. That duty arises out of the invitation which the law implies and rests upon sound and just reason. Facts pertaining to the thing and its location from which such an invitation is to be implied are to be proved as other facts are proved. ’ ’

The case of the City of Pekin v. McMahon, 154 Ill. 141, is a case very similar to this case. In the Pekin case the city had dug gravel on their premises and left a large pit which had filled with water to a depth of 14 feet; that the banks of the pit were steep and that children were attracted to this pool by the water; that the young boys ha'd been in the habit of playing upon the banks, and the logs, etc., in the water in the pit; that the young* boy had fallen into the water and was drowned; that the father of the boy was a laboring man and had gone to his work early in the morning and that the mother had been busy working* around her home doing her household duties. In principle we can see no difference between the case before us and the Pekin case. In the Pekin case the boy was playing upon a log in the water; in the present case the boy was playing upon a board above the water and fell off into the water and was drowned; and it is our opinion that the appellee has proven such a case that comes within the rule of the attractive nuisance, or turntable cases.

We have examined all the cases cited by the appellant in its brief, but we find none of these cases that, in our opinion, comes so nearly to the facts in this ■ • case as the Pekin case. The appellant insists that the trial court erred in admitting evidence relative to the • fence and gate around the pool in question. We do not find anything* that would be prejudicial to the appellant in this testimony. In the case of City of Pekin v. McMahon, supra, the same question was raised on practically and technically the same facts as in this case, and the court there held that it was a question of fact for the jury to decide whether the parents of the intestate had been guilty of contributory negligence in allowing the child to go upon the premises on which he was drowned. The jury were properly instructed in regard to this matter and have found that the parents were not guilty of contributory negligence. We think their verdict should not be disturbed on account of their so finding.

The appellant complains of appellee’s given instruction No. 7, which relates to the measure of damages that the jury shall assess in case they find in favor of the plaintiff. This instruction is subject to criticism, but it is not a peremptory instruction. Any error the court may have committed in giving this instruction is overcome by defendant’s given instruction No. 11, which states the elements that can be taken into consideration and excludes all other matters not to be considered by the jury. The instructions of the court should be considered as a series and not as any particularly isolated instruction when it does not direct a verdict.

We find no reversible error in this case and the judgment of the circuit court of Winnebago county is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Baldwin

text:
    Nora Redington, Appellee, v. Charles C. Craig et al., Appellant.
    Gen. No. 8,545.

      Opinion filed February 23, 1933.
    Rehearing denied May 2, 1933.

      Alyah S. Green and I. N. Herreid, for appellant; C. C. Craig, pro se, of counsel.
    Woolsey, Stickney & Lucas, for appellee,
   Mr. Justice Baldwin

delivered the opinion of the court.

The bill of complaint herein was filed December 14, 1931, in the circuit court of Knox county, Illinois, to foreclose a mortgage securing a note for the principal sum of $25,000 in favor of the complainant (appellee) against the defendant (appellant), said mortgage bearing date January 3, 1930, payable two years after date, with six per cent interest payable semiannually.

This mortgage contained various covenants. Among others, it contained the following covenant: “Upon the filing of any bill, answer, cross bill or intervening petition to foreclose this mortgage or collect the indebtedness secured thereby, the court may appoint any proper person receiver with power to collect the rents, issues and profits arising out of the premises during the pendency of such suit or proceeding and until the time to redeem the same from any sale that may be made under any decree therein shall expire, such rents, issues and profits, when collected, to be applied on the indebtedness and costs herein mentioned and described. ’ ’

The cause was referred to the master in chancery of said court, who received the evidence and filed his report finding that default had been made in the payment of the said indebtedness so secured by the said mortgage and that there was due to the complainant from the defendant the sum of $27,554.75. Objections to said report were overruled and a decree entered thereon by the terms of which the defendant was ordered- to pay within 10 days the sum of $27,554.75, together with the sum of $1,150 for complainant’s solicitor’s fee and interest from March 15, 1932, together with the costs of suit.

It was further ordered that, in default of such payment, the real estate be sold by the master in chancery, upon the terms and conditions set forth in said decree.

Default having been made in the payment of such moneys, the master proceeded to sell the real estate in accordance with the terms of the decree for the total sum of $26,800. After the payment of the costs and expenses of such sale a deficiency in the sum of $2,443.47 remained and the court entered its deficiency decree therefor.

Thereafter, the complainant filed her petition for the appointment of a receiver to take charge and possession of the said premises and collect the rents thereof.

In the petition for such receiver the petitioner alleged the filing of her bill to foreclose her mortgage; the entry of the decree thereon; the amount found to be due to the complainant; the failure of the defendant to make payment; the sale of the premises by the master in chancery; the amount for which the sale was made and the amount of the deficiency which remained due to the petitioner.

The petitioner further alleged that the said defendant had no other property out of which the complainant could recover any of said deficiency and that there were, judgments of record in the circuit court of Knox county, Illinois, against the said defendant, Charles C. Craig, totaling the sum of $180,000, all of which were unsatisfied and unreleased of record; that execution issued to the sheriff on judgments totaling at least the sum of $113,000 had been returned unsatisfied, and prayed the appointment of a receiver to take possession of the premises and collect the rents, issues and profits thereof until the time to redeem the same from any sale should expire and prayed that the rents be applied upon the indebtedness and costs of this pro-. ceeding and set forth that the gross rents would probably amount to the sum of $165 per month.

This petition was signed by the complainant and supported by her affidavit in which she stated that she had read the petition and “that she knows and understands the contents thereof .and knows that the matters therein contained were wholly true. ’ ’

The defendant was notified of the filing of the petition for receiver and of the hearing thereon and upon such hearing both he and his solicitor were personally present in court.

On May 6, 1932, which was the last day of the February Term of such court, a decree was entered appointing a receiver for the premises and such receiver qualified by filing his bond and entered upon his duties. The defendant excepted to the ruling of the court appointing such receiver and prayed an appeal to this court.

By the order appointing the receiver the court made its finding that default had been made in the payment of the mortgage indebtedness and that the terms of the mortgage provided for the appointment of a receiver, as above set forth; that the sale of the premises had been made in accordance with the former decree of court and that there remained a deficiency of $2,443.47 due the complainant, with interest thereon from April 21, 1932; that the defendant, Charles C. Craig, had no other property out of which the complainant could recover the deficiency and found that a receiver should be appointed to take possession of the property and entered its order appointing such receiver, prescribing his duties and fixing his bond.

The appellant on the last day of the term, without complying with the rule of court concerning the submission of bills of exception and certificates of evidence to opposing counsel for examination, presented to the trial judge a bill of exceptions and certificate of evidence which was then signed by the trial judge. On July 5, 1932, during the June Term 1932 and within the period fixed for the filing of a bill of exceptions the complainant filed her motion in the trial court to amend the record and the certificate of evidence which had been so signed and filed on May 6, 1932, setting forth that such record and certificate of evidence did not fairly and accurately state the facts or truly represent what actually transpired at and in connection with the hearing in said court on the petition of the said complainant and petition for the appointment of a receiver in the said cause, and to insert in the original record the recital of such facts as • actually occurred in connection with such petition.

Notice of the filing of such motion was given defendant and his solicitors on July 5,1932, notifying each of them that on the 7th day of July, 1932, at 10 o’clock the complainant would appear before the trial judge in said circuit court in the circuit court room in the courthouse in Gfalesburg and move the court to amend the record and certificate of evidence as indicated.

On July 7, the defendant and his solicitors were present in court and by agreement of the parties the hearing on the motion was continued to July 11 when the matter was heard and again further taken up on July 13, 1932. On July 15, 1932, the trial court allowed the motion to amend the record and certificate of evidence and entered a corrected decree and certificate and this action is assigned as error by appellant, who filed his motion in this court to strike from the record such amended matter therein, not that the facts incorporated were incorrect, but because it is alleged that the court was without power to amend the decree after the term at which it was entered.

In the case of Church v. English, 81 Ill. 442, upon a similar question the court said: “That a court has power to amend its own records at a subsequent term upon notice to parties adversely interested is not doubted. ... As between the original parties, we are not aware of any limitation as to the time in which snch amendments may be allowed. No reason suggests itself why such amendments may not be made at any time, so long as anything definite and certain remains to amend by.” The amendment in that case took place some ten years after the order had been made.

In the case of Sinnock v. Marney, 250 Ill. App. 266, 271, the court held: “. . . The court may at any time thereafter (after judgment) by an order entered nunc pro tunc, cause the record to show in proper, technical form the judgment that was, in fact, rendered by the court.” Again, on page 275, following the case of Davenport v. Kirkland, 156 Ill. 169, it was said: “The first contention made on behalf of the appellant is, that the court had no power, after the term at which the decree was entered had elapsed, to amend the decree by correcting the name of one of the parties therein mentioned. The rule applicable to amendments or alterations of decrees in chancery after the lapse of the term is substantially the same as that prevailing in cases of judgments at law, and is confined to mere clerical errors or matters of form, or to matters which are quite of course. But this rule, as applied both to judgments at law and to decrees in chancery, does not deprive courts of the power, at a subsequent term, to correct matters of mere form in their judgments.” Continuing the court said: “In Cooley v. Scarlett, 38 Ill. 316, it was held that where a circuit judge had inadvertently signed a decree containing erroneous recitals of proof, he might correct it at a subsequent term, on his becoming satisfied that an error in that respect had been committed.” To like effect are the cases of Palmer v. Harris, 100 Ill. 276, and People v. Holmes, 312 Ill. 284.

It is thus apparent that the court possessed ample power to amend its record, certificate of evidence and decree in this case so that they and each of them should correctly set forth such facts and transactions as actually took place and, therefore, the contention of the appellant in this respect cannot be sustained and the motion to strike must be and is overruled.

The only controversy in this case relates to the appointment of the receiver. It is urged by appellant that the trial court erred in appointing a receiver because it is said (1) the receiver was appointed after final decree, of foreclosure without evidence to support the allegations of the petition; (2) the petition was not properly verified; (3) the complainant was not entitled to a receiver under the terms of the mortgage which had been foreclosed; (4) any rights the complainant had, had been merged in a final decree of foreclosure and sale without reserving by the decree the matter of rents for further consideration.

We assume that by his reference to a final decree of foreclosure appellant really means the deficiency decree. The decree of foreclosure is entered before any sale is made and such decree is the final decree of foreclosure. No other decree of foreclosure is entered. The only additional decree is a decree approving the sale and for a deficiency, if one exists, but such decree is in no sense a final decree of foreclosure. Hence, for the purpose of this case we have concluded that appellant has intended to refer to the deficiency decree when he used the term “final decree of foreclosure.”

A receiver has been defined to be “an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation.” High on Receivers, Section 1, chapter 1. (Nartzik v. Ehman, 191 Ill. App. 71.)

The power to appoint a receiver in any case, however, is a power possessed and exercised by courts of chancery as a part of the general ■ preventive jurisdiction. It is a remedy to be applied by such, court whenever in its judgment the exercise of such power is pecessary to prevent injury and to do complete justice,

In the case of Chicago Title & Trust Co. v. Mack, 347 Ill. 480, 483, the court said: “The appointment of a receiver is a branch of equity jurisdiction not dependent upon any statute and rests largely in the discretion of the appointing court. It had its origin in the English court of chancery at an early date, and it was incidental to and in aid of the jurisdiction of equity to enable it to accomplish, as far as practicable, complete justice among the parties before it, the object being to secure and preserve the property or thing in-controversy for the benefit of all concerned pending the litigation, so that it might be subjected to such order or decree as the court might make or render. In this State, as well as in most, if not all, the other States of the Union, the court may appoint a receiver in foreclosure proceedings, even when the mortgage does not by express words give a lien upon the income derived from the mortgaged property, to take charge of it and collect the rents, issues and profits arising from it, and if the mortgage expressly waives the right of possession of the mortgaged premises and consents to the appointment of a receiver during the pendency of a suit to obtain a decree of sale the effect is to pledge the rents as fully as the property itself, and a court of equity may appoint a receiver without regard to the solvency of the mortgagor. (Haas v. Chicago Building Society, 89 Ill. 498; Bagley v. Illinois Trust and Savings Bank, 199 Ill. 76.) ”

But appellant says such appointment was made without evidence to support the allegations of the petition. The term “evidence” as defined by Blackstone “signifies that which makes clear or ascertains the truth of the very fact or point in issue, either on the one side or the other. ” In this case not only the sworn undenied petition, but all the records, decrees, minutes and proceedings of the case, were before the court and we find that the appellant expressly stipulated (the necessity of which we do not pass upon) that all such records and files in the case should he considered by the court.

It is urged that the petition of the complainant was not properly verified. There is no merit to this contention. The affidavit attached to such petition not only recited that the affiant was the complainant but recited that she had read the petition, knew the contents thereof and that she knew they were true and such affidavit is sufficient. We know of no way it could be mad°e any stronger since we cannot conceive how any person could say certain facts were true unless such person knew the facts were in fact true and the mere fact that complainant in her affidavit said she knew they were true neither adds to nor detracts from the affidavit. The cases cited by appellant as supporting his objection are cases where affidavits are made upon information and belief and have no application here.

The power to appoint a receiver is, as has been above mentioned, a power inherent in the court of equity and is an appropriate remedy to be applied by such court whenever in the discretion of such court such remedy is necessary to promote justice between the parties.

The fact that litigants may take a different view from that adopted by the court as to the necessity of a receiver is not impressive since it is incumbent upon the court to make the ultimate decision and to act for the preservation of the rights of the respective parties.

In this case, however, the appellant is not in a position to make complaint that his views did not coincide with the court as to the appointment of a receiver, for the reason that prior to such appointment a decree of foreclosure had been entered and by the terms of such decree it was found that the appellant was in default in the payment of the obligation and interest thereon and in the payment of certain taxes and special assessments which by the terms of the mortgage he had agreed to pay. It was provided that “in case default be made in the payment of the principal indebtedness therein mentioned or any part thereof, with interest thereon, or a breach of any of the covenants or agreements therein contained, said mortgage might be foreclosed to pay the same . . . and that upon foreclosure of said mortgage to collect the indebtedness secured thereby, the court may appoint any proper person the receiver, with power to collect the rents, issues and profits arising out of the premises during the pendency of such suit or proceeding and until the time to redeem the same from any sale that might be made under any decree shall expire, such rents, issues and profits, when collected, to be applied upon the indebtedness and costs mentioned and described in said mortgage. ’ ’ Although the court is not bound to make the appointment of the receiver, yet when the circumstances are such as to appeal to the conscience of the court and to warrant the belief of the court that a receiver is necessary, the mortgagor cannot be permitted to repudiate the terms of his contract.

It is said by the appellant that the lien created by the mortgage is no longer effective after decree of foreclosure and in support of this proposition the appellant cited the cases of Davis v. Dale, 150 Ill. 239; Digby v. National Loan and Building Ass’n, 60 Ill. App. 644; Schaeppi v. Bartholomae, 217 Ill. 105. We have examined these cases, however, and we find that they do not support the position of the appellant.

In the Davis v. Dale case, the court said that the only question there involved was whether the circuit court had erred in requiring a receiver to pay taxes. In that case there had been a foreclosure but prior to the foreclosure proceeding a receiver had been appointed. Upon the sale„ under the foreclosure the premises produced the full amount of the debt, interest and costs. Sometime thereafter a motion was made to discharge the receiver but apparently no hearing was ever had upon such motion and no orders entered thereon. The receiver was ordered to pay certain taxes and this was alleged as error and it was from this order that the appeal was prosecuted. In passing upon the question the court used some of the language relied upon by the appellant, namely: “By virtue of the lien created the mortgagee or cestui que trust had the right to have the security foreclosed and the property sold and the proceeds applied in payment of the secured debt. But when this has been done and the lien enforced by a sale of the property and the proceeds applied, the mortgage or trust deed has expended its force. ’ ’ This language was perfectly correct in the case in which it was used, because the sale of the security had produced the full amount of the debt, interest and costs and nothing further remained due to the plaintiff. In the case at bar, however, there remained a deficiency judgment in excess of $2,400.

In the Digby v. Loan Ass’n case, a different situation was presented. Upon the foreclosure, the sale produced the full amount of the debt, interest and costs and the mortgagor demanded the return of certain other collateral (insurance policies) which had been given in addition to the mortgage and the court said: “The policies of insurance were collateral security to the debt. When the debt was paid in full, as it was by the sale of the mortgaged premises, for the full amount of the debt and costs, the collateral again belonged to the debtor and should have been returned to him.” It is to be noticed that the sale of the real estate produced the full amount of the debt, interest and costs, so that the case is no authority for the position taken by the appellant.

In the case of Schaeppi v. Bartholomae, 217 Ill. 105, there was a mortgage foreclosure and upon sale there was a deficiency. The court appointed a receiver to collect the rents during the redemption period and apply them, on the deficiency. The mortgage in that case, however, contained a provision that after sale the rents should belong to the purchaser and the court held, in passing upon the question, that the purchaser was not entitled to the rents notwithstanding such provision in the mortgage; that the only thing the purchaser could receive was such rights as were conferred upon him by statute.

Again, it is said by the appellant that the mortgagee could not claim the rents and profits and in support of this position he cites the case of Longley v. Wilk, 171 Ill. App. 419. We see no analogy whatever between such case and the case at bar. The court in that case held that the provisions of the particular trust deed did not pledge or create a lien upon the rents, issues and profits collected after foreclosure sale and before the expiration of the period of redemption. It is also to be noted that the mortgagor was not the owner of the equity of redemption, he having disposed of same at some time prior thereto and there was no deficiency against the person who did own the equity of redemption.

This question, however, is not new in this State. In the case of First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, page 151, the court, quoting with approval the language of Haas v. Chicago Building Society, 89 Ill. 498, said: “The necessity for the appropriation of the rents to the payment of the mortgage debt may frequently not appear until after both decree and sale. The amount due is often matter of dispute, and can only be determined by the decree, and what the property will sell for can only be ascertained with certainty from the result of the judicial sale. If an appropriation of the rents on the indebtedness is justified by the surrounding facts before sale, we see no good reason why the same and more weighty facts existing after sale may not warrant a similar procedure. The security, plainly, is not exhausted by the sale, for there is a fund included in it which is secondarily liable. It is true, the mortgagee has elected •to foreclose and sell; but then he has pursued that remedy to the end and without getting satisfaction of his debt, and he may-avail himself of any just and equitable means of collecting the residue, — not that he may have such extraordinary remedy in all cases of a deficit in the proceeds, but only where it is indispensably necessary for his protection, and just and equitable. We hold, then, both upon the principles of equity that lie at the foundation of the chancery court, and upon* authority, a receiver may sometimes be allowed after decree and sale, and that a mortgagee does not, in all cases, exhaust his security by a foreclosure and sale. It is, however,, a power that the chancellor will be slow to exercise except in an extreme ease, and to prevent palpable wrong and injustice.” And quoting further from page 153, the court said: “The question involved in this case, to-wit, where the property sold does not pay the mortgage debt, and where the mortgage has a provision that the rents and profits may be applied toward the payment of the indebtedness and costs, was not before the court. . . . Here the receiver was properly appointed after the foreclosure decree and sale, as the security of the steel company was not exhausted by the sale. Moreover, the necessity for the appointment of a receiver and the collection of the rents and profits, and their application to the payment of the deficiency, did not appear until after .the foreclosure decree and sale.”

In Bagley v. Illinois Trust and Savings Bank, 199 Ill. 76, on page 78, the court in passing upon a similar question said: “We are unable to discover any error in the decree appointing the receiver. By the express provisions of the deed of trust the mortgagors waived their right to retain possession after any default in payment or after breach of any of the covenants in the deed. It also provided that the legal holders of the notes might file a bill in any court having jurisdiction, to obtain a decree for the sale of the property, and that the court might appoint a receiver to collect the rents during the pendency of the suit. Nothing more has been done than the parties stipulated for in their deed. The effect of the deed was to pledge the rents for the payment of the debt as fully as the property itself, and to make the pledge effectual the appointment of a receiver to collect them was stipulated for. Such a provision in the mortgage created a valid lien on the rents, which equity will enforce without regard to the question of insolvency of the mortgagors. (First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; American Bridge Co. v. Heidlebach, 94 U. S. 798; Freedman’s Saving and Trust Co. v. Shepherd, 127 id. 494; 1 Jones on Mortgages [5th ed.] sec. 771.)

“It is not meant, however, to be said that a court of equity will appoint a receiver simply because such appointment is stipulated for in the mortgage. The court is not bound to enforce such a provision where it is not necessary to enforce the lien on the rents and profits for the payment of the mortgage debt. But it has been held that such an agreement in the mortgage is entitled to weight in determining whether the power of the court to make the appointment should be exercised or not. (Keogh Mfg. Co. v. Whiston, 14 N. Y. S. 344.)”

In paragraph 55 of chapter 22 of Cahill’s Illinois Revised Statutes (1931) it is provided: “That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damages, including reasonable attorneys’ fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.” It is urged that the appointment of the receiver herein cannot be sustained because it is said the specific reason of the court for appointing the receiver without bond is not recited in the order as required by this statute.

In Central Trust Co. v. McGurn, 257 Ill. App. 45, on page 48, the court said: “The defendant contends that the court was without power to appoint a receiver without first requiring the complainant to give a bond, unless the giving of such bond was dispensed with in the order of appointment as required by paragraph 55, chapter 22, Cahill’s Statutes, and that since the order appointing a receiver did not provide that no bond need be given by the complainant, the order is erroneous and should be reversed. . . .

“It is conceded by complainant, as indeed it must be, that an order appointing a receiver must comply with the provisions of the statute. The order entered on December 19, appointing a receiver, states that the matter for the appointment of a receiver was heard on the verified bill of complaint, and that due notice of the application for the appointment was given to the defendant, McG-urn, the owner of the mortgaged premises. . . . But no mention is made in the order that a bond need not be filed by the complainant as required by the statute. Obviously the order was erroneous in failing to comply with the statute, and there is no contention to the contrary. But counsel for complainant contend that the error in the order was remedied by the order entered December 31, which the court ordered entered nunc pro tunc as of December 19.

“The record discloses that on December 31, the court entered an order which recites that the matter came on for hearing on motion of solicitors for complainant for the entry of an order amending 'the order of December 19, appointing the receiver, and it was ordered and adjudged that the order of December 19 be amended by inserting in an appropriate place the following: ‘And upon notice and full hearing, the court being of the opinion that the filing by the complainant of a bond to the adverse party need not be required, for good cause shown, and that a receiver ought to be appointed without the filing of such bond. ’ And by inserting a further provision that the receiver be appointed without giving bond . . . , etc.

“What such an order should contain has been the subject of consideration in a great many cases, some of which are: Walker v. Kersten, 115 Ill. App. 130; Watson v. Cudney, 144 Ill. App. 624; Sherman Park State Bank v. Loop Office Bldg. Corp., 238 Ill. App. 450; Chicago Title & Trust Co. v. Bickley, 255 Ill. App. 45; Mason v. Hooper, 166 Ill. App. 537.

“In the Walker case, after the sale of the premises, under a foreclosure decree, there was a deficiency and a receiver was appointed. Upon appeal to this court one of the contentions urged for reversal was that the order appointing the receiver did not require the complainant to give bond and no cause was shown why bond should not be required and that this was contrary to section 1 of the statute in question. In passing on this question . . . the court said: ‘In this we think the court erred. But the error was not harmful. The statute provides that the complainant shall give a bond to the adverse party conditioned to pay all damages, etc., “in case the appointment of such receiver is revoked or set aside. ’ ’ The case was a proper one for the appointment of a receiver. The order appointing a receiver, therefore, will not be set aside or revoked, and there could be no recovery by appellant on the bond if one had been given. ’ In that case, it will be noted that, although the statute had not been complied with in any particular, yet the order appointing the receiver was affirmed because it affirmatively appeared that the case was a proper one for a receiver and therefore there could be no liability because the purpose of the statute, as expressly stated by the legislature, was to require the party making the application to give bond to the adverse party conditioned to pay the adverse party all damages, including reasonable attorney’s fees sustained by reason of the appointment, if it developed that the appointment should not have been made. It would have been an idle and useless ceremony to reverse the order because it was not in accordance with the statute where no purpose would be served by doing so. The law never requires the doing of a useless act. To the same effect is Bothman v. Lindstrom, 221 Ill. App. 262.”

In the same case, on page 54, it was said by the court: “Upon a careful consideration of all the authorities passing.on this statute, we have reached the conclusion that the whole record may be examined to determine whether a bond should be required of the complainant, and that it is not necessary that the order appointing the receiver contain the facts which, in the opinion of the court, excuse the giving of the bond. But we think the order appointing the receiver ought to show, as the statute requires, that for good cause shown upon notice and full hearing the court was of the opinion that a receiver ought to be appointed without complainant being required to give bond. ’ ’

We hold that the order appointing the receiver herein contained the necessary elements to comply with the statute mentioned and finding no error in the record the decree of the circuit court appointing such receiver should be sustained.

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

Affirmed.


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    Harry S. Streeter, Administrator of the Estate of Burry J. McGann, Deceased, Plaintiff in Error, v. Calista Humrichouse, Defendant in Error.
    Gen. No. 8,563.
    Opinion filed February 23, 1933.
    Rehearing denied May 2, 1933.
    Hunter & Minor and Miller & Shapiro, for plaintiff in error.
    John A. Mathew and Mann & Stifler, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

This is an action brought in the circuit court of Kankakee county to the May Term 1928 to recover damages for the alleged wrongful death of plaintiff’s intestate, sustained in a collision between a locomotive of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company and an automobile of the defendant.

Four trials of the cause have been had in the circuit court of such county. The first trial resulted in a verdict for the plaintiff. The defendant’s motion for a new trial was confessed by the plaintiff. A second trial was had at the October Term 1929 which resulted in a verdict for the plaintiff and upon motion for new trial being overruled an appeal was prosecuted to this court. Upon consideration this court reversed and remanded the cause. (Streeter v. Humrichouse, 261 Ill. App. 556.)

The defendant upon the cause being redocketed in the circuit court, by leave of court, filed two additional special pleas herein by which she pleaded certain rules of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company forbidding employees to ride upon the footboard of locomotives when the same were in motion.- Another trial was had upon the pleadings and such additional pleas, but the jury disagreed and was discharged. The cause was again heard at the January Term 1932 which resulted in a verdict for the defendant. Motion for a new trial was overruled and judgment against the plaintiff for costs entered on the verdict and this appeal is prosecuted to reverse such judgment.

The facts in this case are substantially that on September 23, 1927, plaintiff’s intestate was employed as a switchman by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company in the City of Kankakee. The crew of which he was a member consisted of himself, Joseph E. Tooper and M. L. Dufresne. This crew went to work on the day in question about 3:30 in the afternoon. They took the engine from the roundhouse of the said railway company in Kankakee to a point approximately one mile south and east of such roundhouse where the yard office of such railway company is located. About a quarter of a mile south and east of this yard office the railway tracks are crossed by an 18-foot concrete pavement running in an east and west direction and commonly known as State Route 17, and also known as Court street.

On the day in question this train crew had taken certain cars to other yards beyond this crossing and as the locomotive returned, backing in a northwesterly direction, that is to say, the locomotive was headed in a southeasterly direction with the coal tender at the rear, the plaintiff’s intestate was riding upon a foot-board at the end of the tender.

At the intersection of the railway tracks and the State Route 17 a collision occurred between the train and an automobile driven by or on behalf of the defendant, and plaintiff’s intestate, Burry J. McGrann, was injured and, as a result of such injury, died.

The declaration consisted of 15 counts, all charging negligence of various forms, except counts Nos. 1, 6, 9, 13 and 14, which alleged wilful and wanton injury.

At the conclusion of the evidence for the plaintiff the court gave an instruction to the jury withdrawing from the consideration of the jury counts Nos. 1, 6, 9, 13 and 14 so that the questions submitted to the jury were only the questions of negligence of the defendant and the question of contributory negligence of plaintiff’s intestate.

Substantially the same evidence as was introduced upon the former trial and which was considered by this court upon the former appeal was introduced at the last trial. Inasmuch as such evidence is detailed in our reported opinion thereof, it is unnecessary to repeat it here.

At that time, on substantially the saíne testimony, we held that the evidence failed to support the counts alleging wilful and wanton injury, and after careful examination of all the evidence presented on this occasion we see no reason for the adoption of a different conclusion upon this point. The evidence does not support such counts and the trial court'properly excluded from the consideration of the jury all of the counts alleging wilful and wanton injuries.

When the defendant filed her two special pleas, as above referred to, expressly pleading certain rules of the railroad company, prohibiting employees from riding upon footboards of locomotives, the plaintiff went to trial without controverting the sufficiency of such pleas in any particular. The trial court permitted the defendant to prove and to introduce into evidence, under the special pleas above mentioned, a copy of the rules and regulations of such railroad company so prohibiting employees from riding upon footboards of locomotives and this action on the part of the court is now assigned as error.

It is asserted that such rules were incompetent-and our attention is directed to the case of Chicago, R. I. & P. Ry. Co. v. Downey, 96 Ill. App. 398. Although at first impression some of the language of this case would seem to support such proposition, yet from an examination of the facts therein it is disclosed that the deceased was not an employee of the railroad company, and the court held that inasmuch as deceased was not an employee of the company, it could not be assumed that he had knowledge of the rules of the defendant company. Yet, in passing upon the question, the court expressly recognized the competency of the rules of the company in cases where (as in the case at bar) the deceased was an employee of the company as determined, in St. Louis, A. & T. H. R. Co. v. Bauer, 156 Ill. 106; Chicago & Alton R. Co. v. Kelly, 75 Ill. App. 490. The conclusion of the court in that case so cited was to the effect that although the rules of the company were competent in cases where the deceased was an employee, yet they were incompetent where the deceased was not an employee of the railroad company. It therefore follows that the authority does not support the contention of the appellant, but in reality is in support of the action of the trial court herein.

In Romani v. Shoal Creek Coal Co., 271 Ill. 360, on page 367 the court said: “Whether the death of plaintiff’s intestate resulted from the wilful failure of defendant to comply with the requirements of the statute, as alleged, and whether defendant was rightfully at the place where the injury occurred, was- properly submitted for determination by the jury. . . .”

In view of the fact that the question of contributory negligence was directly raised by the special pleas so filed by the defendant, it is our conclusion that the trial court did not err in admitting into evidence these rules for the reason that under the pleadings these rules were competent for the purpose of tending to show contributory negligence on the part of deceased.

Complaint is made that the court erred in the giving of instruction 15 in behalf of the defendant, which instruction in effect told the jury that “if you believe from the evidence that the death of the decedent was caused by accident purely, happening without the negligence of any person, then there could be no recovery and you should find the defendant not guilty. ’ ’ In support of the objection to this instruction the attention of the court is called to the case of Peters v. Madigan, 262 Ill. App. 417, in which a similar instruction was criticized by this court, but we believe that counsel has misconceived the holding in that case, in that we there held that the instruction so criticized by us should not have been given in that particular case, but we did not hold that the instruction was not proper in any case. The court could have with propriety refused the instruction but in view of tie state of the record we are not prepared to say that the judgment should be reversed on account of its having been given.

Complaint is also made to some other instructions herein but from a careful consideration of all the instructions and of the arguments presented, we are satisfied that, taken as a whole, the jury was fairly and properly instructed relative to the law applicable to this case and that there is no reversible error in the giving or refusing to give the instruction of which complaint is made.

Some other objections have been urged as to the admissibility of some of the evidence. From a careful consideration of all of the testimony in this case we are of the opinion that the parties litigant have had a fair trial and that the judgment of the circuit court of Kankakee county should be affirmed.

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

Affirmed.


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    The People of the State of Illinois ex rel. Oscar Nelson, Complainant, v. State Bank of Warren, Defendant. Appeal of Petitioner, City of Rockford, Appellant, v. Roy F. Pillmore, Receiver of the State Bank of Warren, Appellee.
    Gen. No. 8,595.

      Opinion filed February 23, 1933.
    Rehearing denied May 2, 1933.
    Wilbur E. Johnson and David D. Madden, for appellant.
    C. W. Middlekauff, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

One ft. F. Johnson, city treasurer of the City of Rockford, on July 8, 1930, sent a letter to the village treasurer of Warren, Illinois, inclosing therein paving bonds in the amount of $3,800 and coupons in the amount of $370, totaling $4,170 in which letter the city treasurer of Rockford stated: “Will you kindly favor us with a remittance on these bonds direct to the undersigned. City Treasurer of Rockford, Illinois.”

One Carson was at that time the treasurer of the Village of Warren and was also president of the State Bank of Warren. The assistant cashier of the bank was Mabel Paul, and she at that time was also special collector for the Village of Warren. The special collector carried an account with the State Bank of Warren under the name “Special Paving Fund.” On July 12, 1930, as such special collector, she drew a check against this account for $4,170 and as assistant cashier of the State Bank of Warren, upon receipt of this check, drew a draft on the State Bank of Warren, payable to the Rockford National Bank and'drawn on the Continental Illinois Bank & Trust Company of Chicago for $4,170 which was the exact amount due for paving bonds and coupons.

This draft was forwarded to the Rockford National Bank, together with the letter sent to the Village treasurer of Warren by the city treasurer of Rockford hereinabove referred to. The draft was indorsed by the Rockford National Bank to the Continental Illinois Bank & Trust Company and was deposited for collection. The auditor of public accounts closed the State Bank of Warren on July 14, 1930, before the draft aforesaid had been paid. The Continental Illinois Bank & Trust Company protested said draft and returned it to the Rockford National Bank, after which it was charged against the City of Rockford by the said Rockford National Bank. . It does not appear that the Rockford National Bank ever had any interest in the draft aforesaid. The City of Rockford, the petitioner herein, filed its claim with the receiver of the State Bank of Warren for the amount of said draft, asking that it be allowed as a preferred claim and also filed its intervening petition in the case of People of the State of Illinois ex rel. Oscar Nelson v. State Bank of Warren, which was pending in the circuit court of Jo Daviess county. The State Bank of Warren, at the time it was closed, had sufficient cash in its vaults and on deposit with correspondent banks to pay said draft. After .a hearing on the claim, the trial court entered an order denying the petition filed by the City of Rockford for the allowance of its claim as preferred, but did allow it as a common claim. The petitioner excepted to this order and brought this appeal to this court.

The question arises in this cause as to whether or not the relation of debtor and creditor existed between the State Bank of Warren and the City of Bock-ford, or whether the relation of trustee and cestui que trust existed between them.

There seems to be no dispute as to the facts in this case and upon a proper answer to the question raised herein depends the ultimate decision as to the law. This court in a very recent case decided October 18, 1932, entitled People ex rel. Nelson v. Peoples Bank & Trust Co., 268 Ill. App. 39, had before it a set of facts very similar to the instant case and is of the opinion that it, together with the decisions therein referred to, are decisive of the questions raised here.

Generally, it is true that the relationship of the debtor and creditor exists between a bank and its depositor, but we have no such relationship here. The City of Bockford was not a depositor in the State Bank of Warren; its deposit account was with the Bockford National Bank. When the State Bank of Warren, through its assistant cashier, cashed the check against the special paving fund and issued in lieu thereof the draft payable to the Bockford National Bank the State Bank of Warren became trustee for this fund until it was paid to the City of Bockford in accordance with the express directions contained in the letter of transmittal, accompanying the bonds sent for collection. The State Bank of Warren saw this letter sent to the village treasurer. This is evidenced by the fact that when it sent the draft to the Bockford National Bank, it returned with the draft the letter from the City of Bockford through its treasurer and therefore had notice of its contents and in our opinion accepted the trust to deliver the funds to the City of Bockford.

There was no intention, so far as this record discloses, on the part of petitioner, the City of Bockford, to extend credit to the State Bank of Warren. The bonds were sent to the village treasurer for “remittance direct to the City Treasurer” and the State Bank of Warren was charged with the trust of safely delivering the funds to the City of Rockford and the duty thus imposed was not discharged until such service was performed.

The bonds had been forwarded for the sole purpose of remittance direct to the city treasurer of Rockford and neither the village treasurer of Warren nor the State Bank of Warren, which had notice of these directions, could change the trust thus imposed to some other' relationship and the funds clearly became, a trust fund for the benefit of the petitioner in this.case.

It appears from the record that the State Bank of Warren had on hand at the time it was closed approximately $40,000 in cash, items in transit and credits from other banks and when the check on the special paving account was paid, the amount in funds thereof increased the assets of the bank in that amount and therefore became a trust fund held for the benefit of the petitioner herein. The court in People v. Auburn State Bank, 215 Ill. App. 133, page 137, quoting Story on Equity Jurisprudence, announced the rule to be “The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it or those who represent him any more valid claim in respect to it than they respectively had before such change.”

The City of Rockford did not authorize or consent to any disposition of the funds other than remittance. The proceeds of the bonds were to be remitted, as directed in the letter of transmittal and this liability could not be escaped by the issuance of a draft by the State Bank of Warren upon another Bank and it follows that the receiver of the State Bank of Wa-rren stands in the same position with reference to this matter as the Bank itself. (National Life Ins. Co. v. Mather, 118 Ill. App. 491.) Link Belt Machinery Co. v. Hughes, 174 Ill. 155; Union Trust Co. v. Trumbull, 137 Ill. 146.

We are of the opinion and so hold that the facts in this case established that the money in the amount of $4,170 was held in trust by the State Bank of Warren for the benefit of petitioner and that the receiver thereafter appointed for said bank held the trust fund for the benefit of petitioner as it passed into his hands as such receiver, and that he now holds such fund in trust for the use and benefit of petitioner.

The decree of the circuit court of Jo Daviess county is reversed and the cause remanded to the trial court with directions to enter a finding that petitioner is entitled to a preferred claim, together with others of like class, over the general creditors against the money of the State Bank of Warren as passed to the receiver, which was due it from other banks at the time of its failure. People v. Iuka State Bank, 229 Ill. App. 4; People ex rel. Nelson v. Peoples Bank & Trust Co. (supra).

Reversed and remanded with directions.


author: Mr. Justice Matchett

text:
    Page J. Thibodeaux, Appellee, v. Uptown Motors Corporation et al., Appellant.
    Gen. No. 36,493.

      Opinion filed February 9, 1933.
    Rehearing denied February 24, 1933.
    Bernard J. Brown, for appellant.
    Harris F. Williams and Sydney L. Blankstein, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant from an order for a preliminary injunction issued November 3, 1932, upon a verified and amended bill of complaint filed on the preceding day. The amended bill, as well as the order for injunction, shows an abuse of the English language which has been condemned without reservation repeatedly by the decisions of this court. Preble v. Architectural Iron Workers’ Union of Chicago, 260 Ill. App. 435, and Tarjan v. National Surety Co., 268 Ill. App. 232. The abuse referred to is the use of the symbol “and/or,” to which in this case has been added the further abomination “was/were.”

Purging the order from these abominations we translate it to mean that defendant is restrained and enjoined from occupying and using the premises commonly known as 4918-4920 Broadway, Chicago, Illinois, and from causing, permitting or allowing others to occupy and use these premises for any purpose other than that of the sale of automobiles, and particularly from permitting, allowing and encouraging various third persons to enter upon, occupy and use these premises for the purpose commonly known as “parking” of automobiles.

The facts as set forth in the amended bill in brief are that on March 24, 1932, complainant by an instrument which was partly printed and partly typewritten demised and leased to defendant corporation these particular premises described in the injunction order. The lease stated that the premises were “to be occupied for the sale of automobiles and for no other purpose whatever. ’ ’ The words ‘ ‘ the sale of automobiles ’ ’ were typewritten; the other words in the clause were in the printed form of the lease. Other provisions of the lease were that the term should commence on April 1, 1932, and expire on March 31, 1933.

The total rental reserved was $1,000, payable in monthly instalments of $100 each in advance for the first eight months and $50 in advance for the remaining four months of the term of the lease. By a typewritten rider attached it was provided that the lessee was entitled to keep all its property and equipment on the land and that the lessor should have the right to cancel and terminate the lease at any time thereafter upon giving to the lessee a notice in writing 90 days prior to such cancellation.

The amended bill alleges that Balaban & Katz, S. C. Meyer and Edward F. Maher, their agents, servants, etc., are allowed to come on the premises for the purpose of using the same as and for what is commonly known as “parking” of automobiles, which practice (again translating into the English language) the bill avers, consists in permitting owners and drivers of automobiles to temporarily place or store the same upon the premises for varying periods of time as a convenience and for safekeeping; that these third persons have entered upon the premises with the consent of defendant lessee and are thus diverting the use of the premises from the purpose named in the lease.

The controlling question in the case is whether these' allegations of fact as set forth in the amended bill were sufficient to authorize the granting* of the temporary injunction.

Defendant points out that for aught that is alleged in the bill, the premises in question are vacant and says that we may take judicial notice of the fact that the selling* of automobiles would properly include placing automobiles on the lot either with or without “For Sale” signs thereon. Defendant argues that there is no express covenant in the lease providing that the lot should not be used for parking purposes. Reliance is placed on the case of Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, in which the Supreme Court said that the cases were rare in which a court of equity has interfered to prevent the breach of a negative covenant implied from a positive stipulation. Defendant points out that a distinction between an express negative covenant and an implied negative covenant is in that in the latter class of cases equity proceeds to take jurisdiction only for the purpose of preventing irreparable injury, while in the case of an express negative covenant equity takes jurisdiction irrespective of whether complainant is injured or not. To this effect also are Postal Tel. Co. v. Western Union Tel. Co., 155 Ill. 335, and Schobert v. Pittsburgh Coal & Mining Co., 254 Ill. 474.

On the other hand, complainant relying on First Trust & Savings Bank v. Economical Drug Co., 250 Ill. App. 112; Steward v. Winters, 4 Sanford Ch. Rep. 628, and other cases, contends that the phrase “and for no other purpose whatever” is an express negative covenant. Complainant says that a construction such as that for which defendant contends would practically require a dictionary to be attached to every such covenant in a lease in order to make it effective. He says that the Economical Drug Co. case, above cited, is “the leading case in the United States on this subject.” An examination of that case discloses that the premises in question were demised to be used as a drugstore “with the right to sell candy, cigars and soft drinks, and for no other purpose whatsoever.” There were, however, other paragraphs in the lease giving further light upon the intention of the parties. In particular, the 17th clause of the lease recited that John R. Thompson Company had the exclusive right to maintain a restaurant in the building and that the “lessee herein further covenants and agrees that it will not sell anything in the way of edibles on said premises that will in any way conflict with said exclusive right, and that it will do no cooking on said premises. ” As a matter of fact, the negative clause just above quoted was the clause which the bill in that case alleged was breached and concerning which the injunction was prayed. Moreover in that case (unlike this) the cause was heard upon the merits. It was not a case, as here, where a preliminary injunction was granted upon the aver■ments of the bill.

There is, however, as we understand it, no controversy here that the lessor in demising his premises may by an express negative covenant which is unambiguous exclude the lessee from conducting on the premises any particular business other than that for which the premises are demised. That is a matter solely for the agreement of the parties, and equity will enforce such a clear, unequivocal and unambiguous express covenant, irrespective of whether damages are sustained, but any such covenant is construed strictly against the lessor. Where any particular use is excluded only by implication, damage must be averred and proved. Here the premises are demised for use in selling automobiles. Parking automobiles on the premises would not seem to be an inappropriate means to the purpose for which the premises are demised. A construction to the effect that parking is prohibited arises only by implication from the use of the phrase “and for no other purpose whatever.” The covenant does not expressly say that this means and includes parking, but complainant asks the court to imply it from the language of the lease and the trial court held that it was implied and therefore entered the injunction. Conceding that the language may be construed to have such meaning, complainant would not be entitled to this extraordinary remedy of an injunction without in fact alleging and proving damages. There is no such allegation or proof. Our decision does not turn on the construction of any particular clause of the lease but rather upon the fact that the amended bill fails to allege facts sufficient to show any general parking use of the premises. The amended bill alleges only that the named persons were permitted to have their automobiles on the premises.

Complainant appeals to the rule that an appellate court will not usually reverse where the only effect of the injunction is to preserve the status quo. McDougall Co. v. Woods, 247 Ill. App. 170; People v. Standidge, 333 Ill. 361; Levy v. Rosen, 258 Ill. App. 262, are cited. These cases are not applicable. The averments of the bill show that the effect of this preliminary injunction is to destroy, not preserve, the status.

•Irrespective of what a full hearing may determine as to the merits, this preliminary injunction should not have been issued, and the order will therefore be reversed.

Reversed.

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


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. William Begley, Plaintiff in Error.
    Gen. No. 36,463.

      Opinion filed April 10, 1933.
    Martin M. Ward, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant, a sergeant of police of the City of Chicago, was found guilty upon an indictment charging him with unlawfully demanding and receiving from one Gene Hasewer the sum of $1,000 by means of threats to arrest him; he was sentenced to pay a fine of $2,500 and to be expelled from the police department of the City of Chicago; he has paid the fine but by this writ of error questions the judgment of the trial court on the ground that the indictment is insufficient in law. No evidence is in the record before us.

A defendant, even after a plea of guilty and satisfaction of the sentence imposed, may question the judgment upon the ground that the indictment is insufficient to charge any offense. People v. Bandy, 239 Ill. App. 273; People v. Wallace, 316 Ill. 120.

The proceeding was brought under Cahill’s St. ch. 38, 1f 436 (paragraph 449, ch. 38, Criminal Code, Smith-Hurd’s Statutes). The provisions of this statute are that:

“Every person holding any public office . . . who shall be guilty of willful and corrupt oppression, malfeasance or partiality, where no special provision shall have been made for the punishment thereof, shall be fined not exceeding $10,000, and may be removed from his office, trust or employment.”

The indictment, after setting forth the creation of the police department of the City of Chicago and the duties of the members of the police force, recites that the defendant was a police officer acting as a sergeant of police, and “that then and there the said defendant, William Begley, as such Sergeant of Police of the City of Chicago as aforesaid did wilfully, wickedly, unlawfully, corruptly and oppressively and by means of threats to arrest one Gene Hasewer and by intimidating and putting in fear the said Gene Hasewer, wilfully, corruptly, oppressively, wickedly, and without •any legal right to do so, demand and wilfully, corruptly and wickedly receive from him, the said Gene Hasewer, a large sum of money, to-wit, the sum of One Thousand Dollars ($1,000.00) lawful money of the United States, contrary to the Statutes and against the peace and dignity of the same People of the State of Illinois.”

Defendant argues that the indictment is insufficient in failing to allege, in the language of the statute, that no special provision has been made for the punishment of such an offense, and that defendant might have been prosecuted under various other sections of the Criminal Code. In Gunning v. People, 86 Ill. App. 174, where Cunning, a county assessor, was indicted under this same statute, the court in reversing a conviction pointed out that the statute did not apply for the reason that the defendant might have been charged with the violation of certain sections of the Revenue Act, naming them, which provide for penalties to be imposed on assessors for violating the act. In the instant case, however, no other section of the Criminal Code has been pointed out which fits the facts set forth in the indictment. It is suggested that defendant might have been indicted under Cahill’s St. ch. 38, if 443 (paragraph 456 of the Criminal Code, Smith-Hurd). This provides that if any police officer or other officer shall corruptly receive any reward for doing his duty, or if he shall corruptly demand as a condition precedent to the performance of his duty as such officer any fee . or reward, every such officer so offending shall be fined not exceeding $200, and may be removed from office. The instant indictment does not describe any such transactions, and, therefore, that statute is not applicable. It is also suggested that he might have been proceeded against under Cahill’s St. ch. 38, If 215 (paragraph 240 of the Criminal Code, Smith-Hurd). That statute deals with anyone who verbally or by communications maliciously threatens to accuse another of a crime or to expose or publish any of his-failings with intent to extort money, or threatens to maim, wound, kill or murder, or to destroy his property, or to accuse another of a crime, shall be fined not exceeding $500, and imprisoned not exceeding six months. Manifestly, this statute is not applicable. Counsel for defendant does not point out any other sections of the statute which might be applicable. Therefore, we are impelled to the conclusion that the statute, Cahill’s St. eh. 38, if436 (paragraph 449, Smith-Hurd), applies, as no special provision has been made for the punishment of the offense therein described.

The indictment is said to be defective in that it does not allege that the $1,000 which defendant demanded and received from Gene Hasewer was the property of Hasewer or rightfully in his possession; that if the money was the proceeds of a robbery or belonged to the victim of a larceny the police officer had the right, by means of authority to arrest, to demand and receive the money. This might be true, but the indictment charges that the demand and receipt of the money by the police officer was without any legal right, which negatives any presumption that the money might have been the proceeds of a robbery or larceny. Furthermore, it is unnecessary in an indictment to negative all possibilities consistent with innocence; such matters are matters of defense and not of pleading.

It is said that the statute in question contains no description or definition of the offense and leaves it to the pleader to state facts upon which the court in its discretion shall determine whether the facts alleged come within its provisions. An indictment or information is sufficient which states the offense in the terms and language of the statute creating it, but where the statute itself does not define the nature of the offense sufficiently to notify the defendant of the crime with which he is charged, then the allegation in the words of the statute is insufficient. Gallagher v. People, 211 Ill. 158. Granting that the statute in question defines the crime in general terms, namely, as “willful and corrupt oppression, malfeasance or partiality” on the part of a police officer, the facts set forth in the indictment clearly come within this description. The indictment in substance charges that the defendant, as a police officer, unlawfully and by means of threats to arrest, and by thus intimidating Hasewer, demanded and received from him without any legal right to do so, the sum of $1,000. No motion to quash this indictment nor request for a bill of particulars nor in arrest of judgment was made. If the indictment was defec-' tive in failing to set out sufficient facts to apprise the defendant of the charge against him, apt motions should have been made. Technical objections to an indictment are waived by failing to move to quash or otherwise attack the sufficiency of the indictment before" trial and verdict. People v. Glassberg, 326 Ill. 379; Cahill’s St. ch. 38, ¶ 793 (par. 719, ch. 38, Ill. Stat., Smith-Hurd).

Other points presented do not persuade us to disturb the judgment. It is therefore affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.