author: Mr. Presiding Justice Boggs

text:
    James H. Scott, Trustee in Bankruptcy of the Estate of John A. Johnson, Appellant, v. Ray C. Judd et al., Appellees.
    Gen. No. 8,052.

      Opinion filed September 24, 1929.
    Rehearing denied February 4, 1930.
    Peffers & Wing, for appellant.
    Hempstead & Green, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

A bill was filed by appellant as trustee in bankruptcy of the estate of John A. Johnson, against appellees, to recover certain payments alleged to be illegal preferences under the Bankruptcy Act. No question is made by appellant as to the sufficiency of the pleadings, etc. While the record contains no certificate of evidence, the decree contains a full statement of the facts, and is treated by all parties as sufficient to present the questions sought to be raised.

The decree finds that on March 7, 1925, John A. Johnson was adjudged a bankrupt and that appellant was appointed trustee and qualified as such.

The decree further finds that, for some years prior to said adjudication, Johnson was engaged in the dairy business and was a tenant of appellee Vermilyer; that Johnson owned certain live stock, farm implements, tools, machinery, grain, hay, oats, etc.; that in 1924 Johnson became indebted on certain notes payable to appellee Judd, and to secure the payment thereof, executed two chattel mortgages dated June 25 and October 27, 1924, respectively. Both of said chattel mortgages. contained the covenants ordinarily in such instruments, were duly acknowledged and filed for record as provided by statute. The mortgage of June 25 was made to secure the sum of $5,475, and covered certain dairy cattle, certain horses, stock, machinery, growing crops, etc. The chattel mortgage of October 27 was given to secure $2,080, and covered 22 cows.

The court further found that J ohnson made the following cash payment to appellee Judd, to apply on said chattel mortgage indebtedness: On December 30, 1924, $100; on February 11,1925, $30; on February 19,1925, $70; that, some time prior to February 25, 1925, 17 of the cows covered by said mortgage of June 25 were condemned by the State and Federal governments as tubercular, and that said governments each paid to said bankrupt the sum of $307.24, as indemnity therefor; appellee Judd, upon the receipt of said vouchers, procured Johnson to indorse the same to him to be applied on said indebtedness.

The court further found that on December 10, 1924, Johnson was indebted to appellee Vermilyer in the sum of $240; that he executed a note for said amount, payable to Vermilyer; that appellee Judd indorsed the same; that thereafter Vermilyer assigned said note to appellee bank; that on January 19, 1925, Johnson paid to said bank the sum of $160 to apply on said note.

The court further found that Johnson, in his dairying business, had been selling milk to appellee Lubner; that on February 9,1925, Judd obtained from Johnson an order directing Lubner to pay him all balances due for milk delivered; that on March 13, 1925, pursuant to said order, Judd was paid $359.35, being the amount which was due Johnson for milk delivered to Lubner during the month of February, 1925.

The court found that the item of $100 was not recoverable; that .the payments of $30 and $70, under said Bankrupt Act constituted illegal preferences, and that appellant was entitled to recover the same; that, while each of the two chattel mortgages held by Judd contained no provision with reference to insurance or any indemnity that might be paid, etc., that said “proceeds stand in lieu of the seventeen (17) cattle which were destroyed by the State and Federal authorities as aforesaid, and that in law the lien of the chattel mortgages would attach to the indemnity money or proceeds,” and that no recovery could be had therefor.

The court further found that appellee Judd should not be charged with the payment of the $160 paid to appellee bank; that as to the $359.35 paid by Lubner to Judd, appellant was entitled to recover $59.35 as an illegal preference, being for the amount of milk delivered up to February 9, 1925.

The court dismissed said bill as to appellee bank and as to appellee Lubner, and decreed that appellant as such trustee recover from appellee Judd the aggregate amount of $159.35. To reverse said decree, appellant prosecutes this appeal.

In order to constitute an illegal preference: (1) The transfer must be from an insolvent debtor to a creditor. (2) The effect of the transfer must be to enable such creditor to obtain a greater percentage of his debt than other creditors of the same class. (3) The creditor must have had reasonable cause to believe that it would have such effect. (4) The transfer must have been made within four months of the adjudication. (Federal Bankruptcy Act, sec. 60.)

The court did not err in holding that appellant was not entitled to recover as to the item of $100; paid to Judd on December 20, 1924, and as to the payment to appellee bank of $160 on January 19, 1925, as the decree fails to find that at said times Johnson was insolvent, or, if insolvent, that his insolvency was known to either Judd or the officers of said bank. As to said bank, the finding is that it did not have notice of such insolvency. It might be further observed that the payment to said bank was not a payment on behalf of appellee Judd, but was on an indebtedness owing by Johnson, on which Judd was merely an indorser.

The ruling of the court on the two items of $307.24 presents a more serious question. Said payments were made to Johnson by the State and Federal governments on February 25, 1925. The court found that on February 11,1925, Johnson was insolvent and that his insolvency was known to appellee Judd. Said payments were within four months of said adjudication in bankruptcy, and unless the court was warranted in holding that the lien of said chattel mortgages attached to said indemnities, the finding and decree of the court thereon cannot be sustained.

A chattel mortgage is a form of lien unknown to the common law, and is a creature of the statute. Frank v. Miner, 50 Ill. 444-447; Kimball Co. v. Polakow, 268 Ill. 344-348. The statute in reference to chattel mortgages, being in derogation of the common law, must be strictly construed. Porter v. Dement, 35 Ill. 478-479; Hunt v. Bullock, 23 Ill, 320; Kimball Co. v. Polakow, supra, 348.

There being no provision in said chattel mortgages with reference to insurance or indemnity, etc., the question for determination is as to whether the lien of said chattel mortgages can be extended to cover said indemnities.

In Ely v. Ely, 80 Ill. 532, the court had before it a bill filed by a tenant to recover insurance received by the landlord for leased buildings, destroyed by fire, and which buildings the tenant rebuilt under a clause requiring that he should do so. The court at page 539 says:

“The further position which is taken, that, irrespective of any contract whatever, the insurance was for the benefit of the party who was bound to rebuild, we know no ground of principle upon which it is to be maintained. The erection of the new building by the lessee was not done at the instance or by the procurement of the lessor. It was the voluntary act of the lessee, done in the performance of his own covenants in the lease. He was not entitled to the contribution by the lessor of any money toward the rebuilding. Had there been no insurance, there could be no pretence of a legal claim against the lessor for any portion of the cost of rebuilding. Whence the claim to this insurance money? It belongs to the assured, the owner of the building. . . .

“The case is analagous to that of mortgagor and mortgagee, who have each an insurable interest. Where the mortgagee insures, the mortgagor, having-had no connection with the insurance, cannot claim its, benefit. The mortgagee may enjoy the insurance money received, and still collect the whole mortgage debt from the mortgagor. Honore v. Lamar Fire Ins. Co., 51 Ill. 409; King v. The State Mutual Fire Ins. Co., 7 Cush. 10.”

In Glemson v. Trammell, 34, Ill. App. 414, where a lease was executed with the provision that the buildings to be erected should become the property of the lessor and where, prior to the expiration of the lease, such buildings were destroyed by fire, it was held that “the money received for insurance was on the insurable interest of the Stonefort Stave and Heading Company (the lessor) and paid out on the debts of that corporation and cannot be held to have been received for the use of the plaintiff (tenant).” t

In Lindley v. Orr, 83 Ill. App. 70, one W. B. Cauble was in failing circumstances; judgments and executions had been obtained against him and, pending the enforcement of the same, he made an assignment of all his property to appellee Orr for the benefit of his creditors. The court at page 71 says:

“Previous to the assignment, the insolvent had insured the property, taken the policies payable to himself, with no mention or reference therein to any creditors or class of creditors, with the except on that one of the policies contained the clause that the loss should be payable to the building association as its interest might appear, it being a mortgagee. After the assignment all the property covered by the insurance, except a drug store located at the postoffice in the village of Sidell, was- destroyed by fire. . . . After paying the mortgage of the building association, $3,341.68 of the proceeds of the insurance policies remained in the-hands,of the assignee for distribution.”

The court, after quoting from Carter v. Rockett, 8 Paige Ch. 437; Columbia Ins. Co. v. Lawrence, 10 Pet. (U. S.) ,507; 2 May on Insurance (3d Ed.), sec. 456; and 1 May on Insurance (3d Ed.), sec. 6, at page 75 says :

“Neither the assured nor his assignee having agreed or disclosed any purpose or intention to insure the property for the benefit of appellants, they have no better claim to the proceeds of the policies than any other creditors of the insolvent.”

Griffin v. Pfeffer Lumber Co., 285 Ill. 19, was a suit instituted to recover certain moneys collected from insurance companies for the loss by fire of certain buildings on premises belonging to appellants and occupied by appellee. Appellants, as the owners of said premises, had leased the same to a partnership doing business as Barney & Hines for a term of ten years. The lease stipulated that the lessees should keep the buildings covered by said lease insured in the name of the lessor, and that “in the event of the loss or destruction of said buildings, . . . whereby loss is payable under said insurance, that then the lessor will repair or replace or erect and construct suitable buildings for said lumber yard . . ., not exceeding the amount received from said insurance, ’ ’ etc. The lease in question was assigned by the lessees, and was finally held by James G. McLean of Olney. McLean organized the McLean Lumber Company, which took over said business. Thereafter, said company was changed to W. L. Pfeffer Lumber Company. Buildings for use in the lumber trade were from time to time erected by said lessees and their assignees. On October 27, 1914, the buildings were destroyed by fire and the premises were surrendered to the lessors. At page 24 the court says:

“Appellee here paid the rent for the time it had possession. It never signed any agreement to pay rent until the term specified in the lease expired or to insure the buildings for the benefit of appellants. It had an insurable interest in the buildings, (Home Ins. Co. v. Mendenhall, 164 Ill. 458; Grand Pacific Hotel Co. v. Michigan Commercial Ins. Co., 243 id. 110;) which it was lawful to have insured for its own benefit. Whether that interest was insured for more than it was worth was a matter between it and the insurance company, and the collection of a greater sum than the value of appellee’s interest, under the facts here proved, would not authorize a recovery by appellants.”

In Ruling Case Law, vol. 14, sec. 536, p. 1367, the author says:

“It is, undoubtedly, the general rule that á mortgagee has no right to the benefit of a policy taken by the mortgagor, unless it is assigned to him. . . . Nor does a policy taken out by a creditor on his debtor’s property inure to the benefit of the debtor’s mortgagee as to the amount necessary to satisfy the claims of the creditor.”

It will be observed that, in passing on the rights of a mortgagee, courts are not inclined to so construe the same as to give the mortgagee any greater right in the property mortgaged, or in the proceeds of insurance thereon, than the language of the instrument shall require.

As stated, neither of said chattel mortgages provided anything with reference to insurance or indemnity. The proceeds here involved were by way of indemnity paid “to the owner” by the State and Federal governments, for' property condemned and destroyed. Cahill’s St. ch. 8, 75 (8); Barnes’ Fed. Code, 1919-1924, Cum. Supp., p. 845.

We therefore hold, in keeping with the principles laid down in the foregoing authorities, and under the provisions of said State and Federal statutes, that the court erred in denying a right of recovery to appellant for said amounts. Such payments to appellee constituted an illegal preference under the Bankruptcy Act.

In connection with the item of $359.35, the decree finds that appellee Judd took possession of the cows covered by said chattel mortgage on February 9, 1925, and that he thereafter fed said cattle out of his own feed. We think therefore that the court properly held, as to the $300 which accrued from the sale of milk after February 9, 1925, that appellee Judd was equitably entitled thereto, he being a mortgagee in possession and having the care and expense of feeding said mortgaged stock.

For the reasons above set forth, the decree is reversed in part and affirmed in part, and the cause is remanded to the trial court with directions to enter a decree in conformity with our holdings herein.

Reversed in part and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Jones

license: Public Domain

text:
    In the Matter of the Application of Emilie Glos, for Probate of the Will of Adam S. Glos, Deceased. Appeal of Jacob Glos.
    Gen. No. 8,069.

      Opinion filed October 8, 1929.
    Rehearing denied February 4, 1930.
    John R. O’Connor and Charles W. Hadley, for appellant.
    Charles S. Williston and Samuel J. Howe, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

On January 9, 1928, the will of Adam S. Grlos, deceased, was admitted to probate in the county court of DuPage county. The testator left no descendant surviving. Jacob Grlos, a brother, resisted the probate of the will in the county court, and took an appeal to the circuit court. After the appeal had been perfected, he died intestate. . On January 4,1929, Albert H. Glos, a son of Jacob G-los, filed a motion in the circuit court suggesting the death of his father, and asked to be substituted as party appellant. The motion was denied and the circuit court dismissed the appeal.

Sectons 13 and 14 of the Statute of Wills, Cahill’s St. ch. 148, tilf 15 and 16, provide:

“Section 13. When the probate of any will and testament shall have been allowed or refused by any county or probate court, and an appeal shall have been taken from the order or decision of such court, allowing or refusing to admit such will to probate, into the circuit court of the proper county, as provided by law, it shall be lawful for the party seeking probate of such will to support the same, on hearing in such circuit court, by any evidence competent to establish a will in chancery; and in case probate of such will shall be allowed on such appeal, it shall be admitted to probate, liable, however, to be subsequently contested, as provided in the case of wills admitted to probate in the first instance.

“Section 14. Appeals may be taken from the order of the county court, allowing or disallowing any will to probate, to the circuit court of the same county, by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace, except that the appeal bond and security may be approved by the clerk of the county court; and the trials of such appeals shall be de novo.”

The statute makes no other provision for an appeal from an order of the county or probate court allowing or refusing a will to probate. The probate of a will is a special statutory proceeding in which the character and quantity of proof required has been carefully prescribed and the effect of the judgment of the court precisely declared.

At common law, the death of either party at any stage of a proceeding abated the action. (Olson v. Scully, 296 Ill. 418; People v. Western Life Indemnity Co., 261 Ill. 513.) A cause of action created by statute does not survive, unless declared so to do by the statute itself or unless provision for its survival is made by some other statute. (Selden v. Illinois Trust & Savings Bank, 239 Ill. 67; People v. Western Life Indemnity Co., supra; Olson v. Scully, supra.) In this State there is no statute which provides that an appeal from an order allowing or refusing probate of a will may survive the death of the appellant.

But it is contended that the appeal to the circuit court was the beginning of a suit to contest the will of Adam S. Grlos within the meaning of the third proviso to section 7 of the Statute of Wills, Cahill’s St. ch. 148, If 7, and that by the terms of that proviso the suit did not abate by the death of Jacob Grlos. The whole subject relating to the execution, probate, and contest of wills, as well as the devolution of property by will, is statutory. The legislature has provided a prompt and summary proceeding for the probate of wills. No issue is required to be made between those who assert and those who deny the validity of the will, and the purpose of the proceeding, as has been stated in many cases, is merely to make a prima .facie case of the execution of the will and the capacity of the testator, so that the estate may be cared for and the administration, proceed, reserving, to any person interested, a distinct right to contest the validity of the will at any time within a year of its probate; and until the expiration of that time, the probate is not conclusive but is expressly declared liable to be contested; and every fact necessary to establish a will in chancery is open to inquiry. (Buerger v. Buerger, 317 Ill. 401.) It is thus apparent that the procedure for probating and the procedure for contesting wills are entirely different and are governed by different sections of the statute. The entire subject matter of section 7, Cahill’s St. ch. 148, ff 7, after the first paragraph, has to do with the right to contest a will by a bill in chancery, and it cannot be said by any process of reasoning that the provisos to that section were intended to embrace appeals under sections 13 and 14, Cahill’s St. ch. 148, fflf 15 and 16. The object of a contest proceeding is to set aside the probate of a will and not to establish it. (Havill v. Havill, 332 Ill. 11.)

The appeal from the order of the county court was not the beginning of a suit to contest decedent’s will within the provisions of section 7. An appeal is the continuation of a cause already pending and is not a new suit. (Steele v. Ruprecht, 147 Ill. App. 646; Hopkins v. Patent, 257 Ill. 346; Sinclair v. Sinclair, 224 Ill. App. 130 ; 3 C. J. Appeal and Error, 320.)

At the time the will in question was probated in the county court, Walter H. Glos was not an heir at law of Adam S. Glos, nor was he a legatee or devisee. He had no interest in the will and did not come within the term “person interested” prescribed by the statute. The appeal provided for by sections 13 and 14, Cahill’s St. ch. 148, ffff 15 and 16, is limited to persons interested in the will, and there is no other statutory pro-i vision permitting an appeal from the order of a county or probate court allowing or refusing probate of a will by anyone not interested in such will. Neither is there any provision of the statute permitting the substitution of any person for an appellant who perfected an appeal and subsequently died. The right of Jacob Glos to prosecute this appeal did not survive by virtue of any statute or by the common law. It abated upon his death. The circuit court of DuPage county correctly denied the motion of Albert H. Glos to be substituted as appellant and properly dismissed the appeal.

The order of the circuit court is accordingly affirmed.

Order affirmed.


author: Mr. Justice Jett

text:
    Reinert Berkland, Administrator of the Estate of Martha Berkland, Deceased, Appellee, v. Howard Watson and Thomas Watson, Appellants.
    Gen. No. 8,070.
    Opinion filed October 19, 1929.
    Rehearing denied February 4, 1930.
    Gardner & Gardner, for appellants; Fred E. Gardner, of counsel.
    Seyster & Fearer, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was instituted by Reinert Berkland, administrator of the estate of Martha Berkland, deceased, appellee, in the circuit court of Ogle county, to recover damages of Howard Watson and Thomas Watson, on account of the death of Martha Berkland, deceased. A jury trial was had resulting in favor of appellee in the sum of $1,650; judgment was rendered upon the verdict, and the appellants prosecute this appeal.

The declaration consists of two counts. In the first count, it is averred that the defendant Howard Watson, a minor, son, servant, agent and employee of the defendant Thomas Watson, was on the 31st day of May, 1927, driving an automobile on a certain public highway; that Martha Berkland, deceased, wife of Beinert Berkland, using due care and caution, drove an automobile across said public highway, and that the automobile driven by said Howard Watson was driven in such a negligent and careless manner that it struck the automobile driven by Martha Berkland, deceased, and that as a result thereof Martha Berk-land was injured and died, leaving her surviving Beinert Berkland, her husband, and 6 children, who, by reason of her death, have been deprived of their means of support.

The second count contains the same averments as found in the first, except that it avers that the car driven by the minor son, Howard Watson, was furnished by the defendant Thomas Watson, father of Howard Watson, for the use of said Howard Watson, in going to and returning from a public school.

To the declaration the defendants pleaded the general issue and two special pleas. The first special plea denied that Howard Watson, minor son of Thomas Watson, was the servant, agent and employee of the said Thomas Watson, as charged in the first count of the declaration.

By the second special plea, the defendants denied that the automobile driven by Howard Watson, on the day in question, was furnished by Thomas Watson, his father, a defendant, and denied that Thomas Watson was at any time the owner of said automobile, and avers that said automobile was owned by one Bobert Watson,

The evidence shows that in the fall of 1926, Howard Watson, one of the defendants, and of the age of 15 years, a son of Thomas Watson, the other defendant, started to school at the Community High School at Bochelle, Illinois, a distance of about 9 miles from where he lived with his father. During the fall and winter of 1926, and up to the time of the accident in question, which occurred on May 31, 1927, Howard Watson and a boy by the name of Fred Busse, who lived in the neighborhood, and was also attending the same school, drove to and from school each day; on alternating weeks each boy would drive his father’s car, taking the other boy as a passenger. Howard Watson lived at home and his father furnished him support, clothes, schoolbooks and such necessities as a parent would ordinarily furnish. Sometimes Howard took his lunch to school and when he did not, he obtained his lunch at the high school with the means provided by his father.

On May 31,1927, the defendant Howard Watson furnished the car in which he and Busse rode to school. He borrowed his brother Bobert Watson’s automobile and used the same in going to and returning from school, that day. The record discloses that the father, Thomas Watson, did not know that his son Howard drove the car of his brother Bobert, until later in the day and after the accident.

Bobert Watson had purchased his automobile several months prior, with his own money, and no one else in the Watson family had any financial interest in it. Bobert Watson, on the day of the accident, was 22 years of age, lived at home with his father, Thomas Watson, and worked for him for monthly wages, board, room and washing. On the day in question it was raining when school was out, and before starting for home the boys put on the side curtains. Howard Watson drove and Busse sat in the front seat beside him and they proceeded towards home by the most direct route. The first four miles was a concrete highway-known as the “Lincoln Highway” running east and west. At this point Howard Watson turned north off the Lincoln Highway on to a gravel highway. The Watson car was traveling north and the Berkland car, east; the view of the highway approaching the intersection was unobstructed. The automobiles collided in the intersection; the right front part of the Watson car struck the right rear part of the Berkland car. After the collision, the Berkland car proceeded northeast to a ditch at the edge of the intersection, where it turned over, and injured Martha Berkland, the deceased, from which injuries she died three days later.

Several reasons are assigned for a reversal of the judgment; two, only, are argued. First, that the deceased was guilty of negligence, and second, that the defendant Thomas Watson was not liable, as a matter of law, and the court erred in not directing a verdict in his favor.

Owing to the conclusion we have reached, we refrain from expressing any opinion on the question of the alleged negligence of the deceased, or of Howard Watson.

The important question, however, arising from the facts shown in this record, is whether or not the verdict and judgment can be sustained against Thomas Watson.

Appellee contends that the statute made it the duty of the parent to send his son to school, the latter being under 16 years of age; that because of the distance between his home and the school, the parent provided for the son an automobile in which he could make his trips; that both convenience and necessity made it imperative for the parent to provide means of conveyance for his son to and from school; that in the performance of the legal duty to educate the son, the relation of master and servant, or principal and agent, existed between the parent and child, and that the parent is liable for the torts of the child while the latter is employed about his parent’s business (compelling his attendance at school). It is also insisted that if the son had been driving a horse, or riding his own bicycle, or walking, and negligently caused injury while going • to or returning from school, his father would have been liable.

Appellee has cited authorities to the effect the law places a child under the dominion of the parent, and while the child is employed about the affairs of his parent, he is to be regarded as a servant. There is no doubt that this rule of law is well established and based upon sound principles. It is obvious that if a parent sends his child to town in an automobile for the purpose of buying groceries, the parent will be liable for the negligent driving of the child while on the way. In such a case the child is the agent of his father in transacting the father’s business, but in the case at bar there is no performance of any business transaction. The law compelling a parent to send his child to school is not grounded upon any business proposition; it proceeds from public policy to promote better citizenship, and is entirely separate and apart from the business . of the parent. It is plain that there is no relationship of master and servant, or principal and agent, between the parent and child in the matter of compulsory school attendance.

The theory of appellee is that the law makes it the business of the father to send his child, under 16 years of age, to school, and while the child is attending school he is carrying out his father’s business. The fallacy of this theory is apparent. It cannot be reasonably contended that the relation of master and servant exists, while a child under 16 years of age is attending school, to cease after he passes that age, since no legal ■ duty rests upon the parent to send him to school. If thy relation of master and servant exists between the parent and the school child, it will begin from the moment the child leaves home and continue throughout the day while the child is attending school, and in going to and returning from school. If this doctrine is to obtain, then the parent is liable for the torts of his son, who engages in a fist fight at school and injures another, or who recklessly throws an implement of some character which strikes and injures another.

In fact, it is impossible to conceive of any act which a boy might do during the day, and between the time he started to school, and the time when he returned from school, for which the parent will not be liable, which act results in injury to person or to property.

The facts in this case seem to indicate that the Busse boy was as much to blame for the collision as the Watson boy, although the latter was the driver. If the Busse boy had been joined in this suit, we see no reason why a judgment could not as well be sustained against him, as the Watson boy. The Busse boy’s father would, under the contention of appellee, be also liable as both boys were being sent to school, and both engaged in the transaction of their respective father’s business. Again, under that theory, if Howard Watson had carelessly driven Robert’s car and damaged it, Robert could sue his father for damages occasioned by Howard’s negligence.

The relation of master and servant does not arise out of the fact that the school boy goes to school in an automobile or any other kind of a vehicle; it must arise out of the fact that the child is performing a service for his father, regardless of the means of transportation.

Appellee insists it exists whether the child walked or drove to school. It would therefore appear that under the rule contended for, a parent would be liable for every tort which his child might commit, whether he was walking or driving to school.

The Illinois cases which hold a parent liable, are predicated upon proof that the child was engaged in the transaction of some of the father’s business, or upon the “family use” doctriné. None of them relate to the performance of a public duty. None of them have ever attempted to confuse public duty with private business. The decided cases in this state can have no bearing upon the decision to be made in this case.

In view of the facts as disclosed by this record, we are of the opinion that neither the relation of master and servant nor of principal and agent existed, as insisted by appellee.

We conclude therefore, that the court erred in refusing to direct a verdict as to the defendant Thomas Watson, and in rendering judgment on the verdict of the jury. The judgment is reversed and cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice

text:
    First National Bank of Kewanee, Illinois, Appellee, v. Dave Wine, Appellant.
    Gen. No. 8,101.

      Opinion filed February 3, 1930.
    Thomas J. Welch and Vera M. Binks, for appellant.
    Gregg A. Young and James H. Andrews, for appel lee.
   Mr. Presiding Justice

Boggs delivered the opinion of the court.

An action on the case was instituted by appellee against appellant in the circuit court of Henry county on a check for $950, drawn by appellant on the Ke-. wanee State Savings Bank and Trust Company, payment of which had been stopped.

The declaration set forth that the check for $950 was given by appellant in payment for two drafts in favor of Grossman Brothers and Company, one for $550 and the other for $400. To said declaration, appellant filed a plea of the general issue, with notice of special grounds of defense.

There is no controversy with reference to the draft of $550, the amount of which, with the interest thereon and the accrued costs, amounting in all to $585, was tendered in open court, and not being accepted, was deposited with the clerk.

The contention of appellant, as set forth in his notice and amended affidavit of merits is, that on the 15th day of September, 1927, at 9:30 o’clock a..m., he delivered to appellee a check for the sum of $400, drawn on the Savings Bank of Kewanee, in payment for a draft for said amount; that the officers of appellant bank were negligent in failing to present said check for payment on the day on which it was received; that if said check had been presented on the day it was received, it would have been paid; that said Savings Bank was located on the same street, about 175 feet from appellee bank; that it was customary for all banks in Kewanee to make clearance on each day at 11 o’clock a. m.; that said Savings Bank failed on September 16, 1927, and was taken charge of by the State Auditor; that on September 15th appellant had on deposit in said Savings Bank the sum of $1,465.08, and that said deposit remained in said bank at the time it closed; that all checks presented to said Savings Bank on September 15 were paid; that appellee bank had knowledge of the insolvency and precarious condition of said Savings Bank; “that Harry C. Dana, cashier and managing officer of the First National Bank of Kewanee, had attendee!, on September 13th' and 14th, two meetings with officers of the two other banks in said city, at which meetings ways and means were discussed, looking toward saving said Savings Bank from receivership,” etc.

A motion was made by appellee to strike said affidavit of merits from the files and for judgment. Said motion was allowed, and judgment was rendered against appellant for $1,021.25. To reverse said judgment, this appeal is prosecuted.

Two principal questions are raised by the assignment of errors: First, whether, conceding that notice to its cashier was notice to appellee of the insolvent condition of said Savings Bank on September 15, 1927, appellee bank was negligent in failing to present for payment said check, given to it on September 15. Second, whether notice to appellee’s cashier, as set forth in said affidavit and notice, was notice to appellee bank. We will take up for consideration the second proposition first.

The cashier of a bank is the executive officer of the bank, and his acts done in the ordinary course of business bind the bank, and notice to such officer of matters in connection with its banking business is notice to the bank. Magee on Banks and Banking, 3d Ed., chapter 10, sec. 143, p. 196. In Simmons v. Roseland Security Vault Co., 331 Ill. 563, the court at page 573 says:

“Frank A. Novak . . . owned ten shares of the stock of the Kimbark State Bank when it was organized and acted as secretary at the first meeting of its stockholders. He was a director and the cashier of the bank until October 1, 1918, and voted for the resolution to buy the real estate from Willis. Notice to a director of a corporation is notice to the corporation. (Butterick Publishing Co. v. Whitcomb, 225 Ill. 605; Koch v. Roth, 150 Ill. 212; Easter v. Farmers’ Nat. Bank, 57 Ill. 215.) Frank H. Novak as director of each of these three corporations and as the holder of other offices in each of them, and Frank A. Novak as director in two of them and the holder of other offices in each of them, knew every detail of the transaction relative to the transfer of this property. Whatever notice they had was notice to each of the corporations of which they were officers and directors, including the Kimbark State Bank.”

The receiving of checks on other banks for deposit, collection, payment of drafts, etc., is a part of the regular business of a bank. Whatever knowledge a cashier, as the executive officer, may have with reference to matters legitimately connected therewith, is notice to the bank. It would, therefore, follow as a logical conclusion that appellee bank had notice of the insolvent condition of said savings bank on the day it received said check. Having notice of the insolvent condition .of said savings bank, was appellee bank negligent in failing to present said check for payment on the day on which it was received? ■

. The authorities are practically all to the effect that, where a check is received, drawn on a bank in the same city, it is the duty of the payee of said check to present it for payment on the day on which it is received, or, at the latest, on the following day. Bickford v. First Nat. Bank of Chicago, 42 Ill. 238-244; Industrial Bank of Chicago v. Bowes, 165 Ill. 70-75; Brown v. Schintz, 202 Ill. 509-514; National Plumbing & Heating Supply Co. v. Stevenson, 213 Ill. App. 49-51; Travers v. Sinclair S Co. 122 Ill. App. 203-207; First Nat. Bank of Chadwick v. Mackey, 157 Ill. App. 408-412.

An examination of the briefs of appellee and appellant will disclose that there is no serious disagreement as to this general proposition. Appellant, however, contends that there is an exception to said rule where the payee of a check has knowledge that the drawee is in an insolvent condition; that in such case it is the duty of the payee to present the same for payment at the earliest practicable moment after receiving the same. On the other hand, counsel for appellee insist that, notwithstanding the payee of a check may have notice of the insolvent condition of the drawee, he still has the next day after the receipt of the check in which to present it for payment. This contention is supported by Northwestern Iron & Metal Co. v. National Bank of Illinois, 70 Ill. App. 245. Counsel for appellant concedes that that decision is against his position, but insists that it is the only case in this State so holding ; that the authorities cited in that case do not support it, and that the weight of authority is to the effect that there is a well-established exception to the above stated general rule.

In 5 R. C. L., p. 506, sec. 30, the author says:

“It is provided in the Negotiable Instruments Law that a check must be presented for payment within a reasonable time after it is issued. If, however, the holder has knowledge of the insolvent or precarious condition of the bank, he must present the check for payment at once, at the first opportunity, or the drawer will be relieved from liability.”

In 8 Corpus Juris, sec. 753, p. 540, it is said:

“It is well settled that, in the absence of special circumstances, when the person receiving the check and the banker on whom it is drawn are in the same place, it must be presented for payment the same day, or at least the next business day after it is received; . . . it is not necessary to present it on the day it is received, except, perhaps, where the holder knows that the bank is in a precarious condition.”

In Herider & Herider v. Phoenix Loan Ass’n, 82 Mo. App. 427, the court in discussing a question of this character says:

“In this connection, it may be of service at another trial to state that, while generally an agent receiving a check on a local bank for collection may delay presenting it until the next day, yet if he knew the bank upon which it was drawn was in failing condition and likely to close business at any time, it would be his duty to proceed-at once to present the check for payment, and not wait the time the law would ordinarily allow for presentation.”

In Morse on Banks & Banking, 6th ed. p. 941, the author says:

“Neglect of the holder to present a check on the very day of its drawing is no defense to the maker, unless the holder knew the bank was in a precarious condition. ’ ’

Weitzel, in his work on the Law of Deposits, says: “If the one who takes the check knows that the bank . on which it is drawn is in a failing condition, he should immediately make presentment to save any loss to the drawer, the endorser, and possibly to himself.”

In Blackwelder v. Fergus Motor Co., 80 Mont. 374, 260 Pac. 734, decided by the Montana Supreme Court in November, 1927, the court at page 740 says:

“The rule that the payee of a check is protected by the presentation thereof within a reasonable time through a bank as his agent and directly to the bank upon which it is drawn, is subject to the proviso that he acted in good faith, and, in the absence of circumstances known to him which would reasonably render such presentment imprudent, as stated in Lewis, Hubbard & Co. v. Montgomery Supply Co., above (First Nat. Bank v. Alexander, 84 N. C. 30, 39 Am. Rep. 702), and if the payee has knowledge of the insolvency or precarious condition of the bank, the general rule that, on receipt of a check drawn on a bank in a place other than that of the payee’s residence, he may, without the imputation of negligence, deposit it in his bank on- the following day, and the bank as his agent may forward it for collection the day following its deposit, does not apply. The check must be presented for payment ‘at once at the first opportunity.’ 5 R, C. L. 506,”

While we hesitate to disregard the holding of the Appellate Court in Northwestern Iron & Metal Co. v. National Bank of Illinois, supra, we feel constrained to do so. The clear weight of authority is to the effect that the exception to the general rule above stated is well established. It might be further observed that, since the decision of that case, the Negotiable Instruments Act of 1907 was passed. That act (Cahill’s St. ch. 98, U207) provides:

“A check must be presented for payment within a reasonable time after its issue, and notice of dishonor given to the drawer as provided for in the case of bills if exchange, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.”

Sixicl affidavit discloses that appellant had ample funds on deposit on the day the check was drawn, to pay the same; that those funds remained in the Savings Bank of Kewanee on September 16, when said bank passed to the control of the State Auditor. Appellant therefore would suffer a loss, if required to pay said amount of $400.

It is insisted by appellee that, by giving his check for $950 on September 16, 1927, to cover said check of $400 and for the draft of $550 which he purchased on said last mentioned date, appellant waived his right to insist that appellee had negligently failed to cash said check for $400.

It is only necessary to say that that question was not raised by the pleadings. In order to rely on a waiver, it must be specially pleaded. It might be further observed that, where a waiver is relied on in a case of this character, the burden is on the party relying on such waiver to prove that it was made with full knowledge of all the facts and circumstances in connection with the transaction. Strong v. King, 35 Ill. 9-21; Walker v. Rogers, 40 Ill. 278-280; Givens v. Merchants’ Nat. Bank of St. Louis, 85 Ill. 442-443 ;Forler v. Butts, 203 Ill. App. 257-259. The evidence in this case di not disclose that appellant had knowledge of the fac in connection with the presentation of said $400 chec. at the time the check for $950 was given. Under the above authorities, it is insufficient to prove a waiver.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be re- ■ manded.

Reversed and remanded.


text:
    Emma J. Miller, Appellant, v. Illinois Life Insurance Company, Appellee.
    Gen. No. 8,136.

      Opinion filed February 3, 1930.
    Harry E. Brown and Arthur G. Higgs, for appellant.
    Hugh T. Martin and Charles E. Sturtz, for appellee ; Sturtz & Ewan, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted by appellant against appellee in the circuit court of Henry county to recover the amount of insurance applied for in appellee company by one John Henry Miller.

The declaration sets forth that on April 8, 1927, appellee company, through its agent, “did solicit and induce” the said John Henry Miller to make an application in writing for a policy of insurance on his life, in favor of appellant, his wife, in the sum of $10,000; that Miller paid appellee the sum of $212.70 for the first year’s premium on the policy applied for, as evidenced by his promissory note; that “said John Henry Miller made all the statements and answers in said application contained and to every part thereof, truthfully, fully and completely, and that the said John Henry Miller did then and there pass a satisfactory medical examination, and was then and there recommended as a desirable risk to the said defendant by the examining physician for the said.defendant; that the said John Henry Miller was . . . then and there a young man of, to wit, the age of forty-two years, in good health and of good habits, and by occupation a farmer,” not engaged in any hazardous occupation “other than last above mentioned”; that on July 24, 1927, Miller died, “and that, although a reasonable time'had elapsed in which the said defendant should have accepted or rejected the said application for insurance, to wit, the period of 108 days, the said defendant did, without any fault or neglect on the part of him, the said John Henry Miller, fail and refuse to accept .or reject said application until after the death of the said John Henry Miller, although the said defendant during all of said time retained the payment for the first year’s premium for said policy of life insurance”; by means whereof appellee became liable, etc.

To said declaration appellee filed a general demurrer, which was sustained. Appellant electing to abide her declaration, judgment was rendered on the demurrer against appellant, in bar of action and for costs. To reverse said judgment, this appeal is prosecuted.

It is contended by appellant that “an insurance company, acting under a franchise from the State, which has solicited and obtained an application for insurance and received payment of the fees and premiums exacted, is bound to furnish the insurance or decline to do so, within a reasonable time, and if it fails to' do so it is liable for the damages resulting therefrom.”

The principal case relied on by appellant in support of her contention is Duffie v. Bankers’ Life Ass’n of DesMoines, Iowa, 139 N. W. 1087, 46 L. R. A., (N. S.) 25. In the Duffie case, the beneficiary in the policy applied for brought an action in tort against the insurance company, to recover damages for failure to either accept or reject the application for insurance within a reasonable time. While the court there held that a recovery might be had for failure to either accept or refuse an application for insurance within a reasonable time, it did not undertake to pass on the right of recovery in an action ex contractu.

Our Supreme Court, in Bradley v. Federal Life Ins. Co., 295 Ill. 381, in affirming the Appellate Court of the Fourth District (216 Ill. App. 602), goes into a discussion of the Duffle case and, while it sets forth that the facts there were somewhat similar to the facts in the Bartley case, refused to sustain an action by the administrator of the estate of the applicant, for failure to accept or reject an application for insurance within a reasonable time.

Plaintiff’s declaration avers a failure “to accept or reject said application until after the death of the said John Henry Miller,” etc.

An offer to enter into a contract, which is not accepted, creates no rights, but may be revoked or lapsed before acceptance. 13 C. J., p. 272; Esmay v. Gorton, 18 Ill. 483-486; McKinley v. Watkins, 13 Ill. 140-143; Cheboygan Paper Co. v. Swigart Paper Co., 140 Ill. App. 314-316; Van Vlissingen v. Manning, 105 Ill. App. 255-260; Cornwells & Elliott v. Krengel & Seiferd, 41 Ill. 394-396; Bladel v. Carroll, 336 Ill. 168-171; Travis v. Nederland Life Ins. Co., 104 Fed. 486-488.

Delay in passing upon an application for insurance cannot be construed into an acceptance by the insurer. Bradley v. Federal Life Ins. Co., supra, 386; More v. New York Bowery Fire Ins. Co., 130 N. Y. 537-545, 29 N. E. 757; Winchell v. Iowa State Ins. Co., 103 la. 189-193, 72 N. W. 503; Handlier v. Knights of Columbus, 106 Neb. 267-270, 183 N. W. 300.

In Bradley v. Federal Life Ins. Co., supra, the court at page 386 says:

“It is not and cannot be denied that the overwhelming weight of authority is that mere delay in passing upon an application for insurance cannot be construed into an acceptance by the insurer.”

In More v. New York Bowery Fire Ins. Co., supra, the court in discussing a question of this character, at page 545 says:

“It is contended, however, that a contract can be inferred from Sage’s silence and failure to notify the plaintiffs that the application was rejected. This, I think, would be a novel doctrine to introduce into the law of contracts. In discussing it, I assume Sage’s powers to have been those of a general agent and coextensive with that of the defendant.

“The courts have applied the principles of waiver and equitable estoppel in a most liberal manner to insurance contracts, but always to enforce good faith and to prevent injustice and fraud, where the insured has been misled by the acts of the company or its agents. But no case has yet decided that the mere failure to respond to an application raised an inference that the company accepted and insured the risk.

“A party cannot be held to contract where there is no assent.”

In Handlier v. Knights of Columbus, supra, the court at page 301 says:

“The rule has been followed in this state, with regard to insurance upon property, that, where an insurance company receives the application but delays the acceptance or rejection of it until after the loss occurs, acceptance will not be implied from the fact that such delay ensued; that there must be an actual acceptance or there is no contract. St. Paul Fire & Marine Ins. Co. v. Kelley, 2 Neb. (Unof.) 720; Lowe v. St. Paul Fire & Marine Ins. Co., 80 Neb. 499; Johnston v. Indiana & Ohio Live Stock Ins. Co., 94 Neb. 403.”

That there was no acceptance of the application is specifically pleaded. There would therefore be no contract on which a right of recovery could be based.

Appellant cannot recover for a further reason. Said declaration avers an offer of contract on the part of the applicant, which was not accepted. Had it been accepted and. a policy issued, then appellant, if named therein as beneficiary, on the death of her husband, would have a right of action, based on the contract of insurance set forth in the policy, but, under the averments of the declaration, appellant has no contractual relation with appellee. If there was anything in the application which, by delay in accepting or rejecting it, could be construed into a contract, it was the duty of appellant to bring that matter to the attention of the court by proper pleading.

While the declaration avers payment of the first year’s premium by the giving of a promissory note, it is not contended by appellant in her brief and argument that, by reason of the failure to return said note, a right of recovery accrued to her. Even though said note was not returned, no contractual relation would be established by that fact, in favor of appellee. The right to the return of said note was in the personal representatives of the deceased.

Practically the only other ground urged is that, being incorporated under the laws of the State of Illinois, and holding a franchise to do business thereunder, appellee was bound to either accept or reject applications for insurance within a reasonable time.

This point is not well taken, as no contractual relation existed between the applicant and appellee, nor between appellant, the proposed beneficiary, .and appellee company. In discussing a question of this character, the Supreme Court of Mississippi, in Savage v. Prudential Life Ins. Co. of America, 121 So. 487, at page 489, says:

“The fact that the insurance companies are granted a franchise to do business in this state does not and should not impose upon them the duty to consider promptly all who offer to them the risk of insuring their lives, no more than would be required of a bank to lend money promptly to all who should make application and suffer loss while the bank was negligent in determining whether or not it would accept the offer and enter into a contract.”

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Margaret Laurberg, by Peter Laurberg, her Father and Next Friend, Plaintiff in Error, v. David Goldman, Defendant in Error.
    Gen. No. 8,092.
    Opinion filed February 3, 1930.
    Hall & Dusher, for plaintiff in error.
    Welsh & Welsh, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.

Margaret Laurberg, by Peter Laurberg, her father and next friend, plaintiff in error, hereinafter referred to as plaintiff, instituted suit in the circuit court of Winnebago county against David Goldman, defendant in error, hereinafter referred to as defendant, to recover damages occasioned to her on account of the loss of an eye by reason of the explosion of a certain glass tube, which she was handling.

The declaration consists of two counts. In the first count the plaintiff avers that on to wit, April 18, 1925, the plaintiff was a child of 14 years, living with her parents and attending school; that the defendant was possessed of certain containers ■ or tubes, which contained certain explosive chemicals, which if left exposed and in the open and unprotected, so that children could play therewith, were liable to explode and cause injury to children who might be playing therewith; that on said date defendant negligently and carelessly dumped said containers containing chemicals as aforesaid, into one of the city dumps of the City of Rockford, located along Kishwaukee Street, in a populous part of the City of Rockford, in which community there were a number of children; that the defendant negligently and carelessly left said tubes or containers in said city dump, unguarded and unprotected; that prior to that time for a long space, of time the children in the neighborhood had been in the habit and accustomed to wandering into said dump and examining the articles dumped therein, and playing with such as were suitable with which to play; that said tubes were left in,said city dump so that they were readily accessible to said children; that certain children were then and there playing in and about said dump and began to play with certain of said tubes and containers; that upon throwing the same or otherwise playing therewith, the tubes exploded and caused loud noises; that the same were very attractive to children in their play; that the plaintiff went to said dump and picked up one of said containers or tubes and attempted to look at it and examine it, and as she did so the tube exploded, caught, fire and the fire therefrom shot quickly into her eye, and that by and on account of said explosion, certain pieces of glass and other material were forced against and into her eye and thereby the sight of one of her eyes was lost; that plaintiff was in the reasonable care for her own safety; that the defendant knew, or if he had exercised reasonable care, would have known that said containers or tubes were explosive, and that children were in the habit of and accustomed to playing in said city dump, or where said tubes and containers were dumped by the defendant, and that children would likely play therewith.

There was an averment of pain and suffering; the damages were laid at $10,000.

The second count of the declaration was substantially like the first except it charged that the conduct of the defendant was wilful and wanton, and because of said wilful and wanton conduct the plaintiff was injured.

To the declaration the defendant pleaded the general issue. A jury was impaneled and the evidence heard on the part of the plaintiff, and at-the close of the plaintiff’s case, the court, on motion of the defendant, instructed the jury to find the defendant not guilty. Motion for a new trial was made, argued and denied; judgment was rendered on the verdict against the plaintiff for costs and in bar of her action. From this judgment the plaintiff has prosecuted this writ of error.

The record discloses that David Goldman, the defendant, was at the time complained of, a junk dealer in the City of Rockford; that close to his place of business the municipality of Rockford operated and maintained,, in charge of an employee, for that purpose, a public dumping ground. The defendant acquired in his business a number of wooden boxes which contained a number of smaller paper boxes, which paper boxes contained chloride of lime, or ordinary bleaching powder in small glass tubes. The employees of the defendant dumped three truck loads of the wooden boxes, containing the pasteboard boxes, which contained glass tubes, into the public dump. Some children, including the younger brother of the plaintiff, came into the public dump, broke open the wooden boxes and possessed themselves of a number of the small glass tubes, and after playing with them discovered that if they were thrown upon or against hard objects they would break and make a noise. It appears from the evidence that the custodian of the city dump had told the children to stay out of the dump and had used his best efforts to keep them out.

On the day plaintiff received her injury, she went to the dump to call her younger brother who was playing there to come home. Some children when she arrived at the dump were throwing glass tubes on the sidewalk and other places and breaking them; plaintiff picked up some of the tubes and carried them home with her; when she got home she sat down on the front steps of the porch and one of the tubes broke, injuring her right eye.

Carl Bernard Olson was called as a witness by the plaintiff, and among other things testified that he had been in charge of the dump for over three years; that the dump belonged to the City of Bockford; that he was employed by the city; the dump was used by every one; the side of the dump was sloping; the place the boxes were dumped was about 30 feet from the top of the dump; children came from all directions into the dump; that he made an effort from time to time to keep them out; that the wooden boxes were four feet long and three feet wide; the boxes were bound with steel bands; that the children got the tubes that were in the boxes and banged them against the rocks and trees and they made a noise when they broke; the children who were playing there with these tubes were from less than 8 to 12 years old; that he did not learn what kind of chemical was in the tube; that the dump was about two blocks in size; that there was a drive into the dump from Kishwaukee Street, from Fifth Avenue, and from Fourteenth Avenue; that the defendant dumped the boxes at the top and they rolled down the embankment to the bottom; that the dump was open and children came into it from all directions.

Prof. E. Gr. Smith of Beloit College testified, that he as a chemist, made an examination of one of the tubes and contents thereof, and found that it contained chloride of lime; commonly known as bleaching powder ; that bleaching powder was an unstable compound, and standing over a long period of time from six months to a number of years, depending upon conditions, would break down and give off gases known as chlorine; that if the bleaching powder was confined the gas released would produce a stress in the tubes and in his opinion this condition was what caused the breaking of the tube in the hands of the plaintiff. He also testified that chloride of lime, common bleaching powder, is not an explosive compound or material; that it is a household article sold in grocery stores and elsewhere, and is not listed as an explosive compound, was never marked dangerous in packages in which it was sold, and packages were never marked with red paint. ■ .

It is insisted by plaintiff that the court erred in directing the jury to find a verdict of not guilty.

The case of the plaintiff is predicated upon the fact that the placing of the tubes containing the chloride of lime in the public dump, in the City of Rockford, was an act of negligence by the defendant, for which he is liable. The record fails to disclose that the defendant knew or in anywise had knowledge that the tubes containing chloride of lime,- which he placed in the city dump, would -break, as the evidence shows they did.

The evidence shows that the chemical in question was nothing but chloride of lime, or common bleaching powder, a household remedy, sold indiscriminately in grocery stores, and used very generally by housekeepers ; that it is not considered as dangerous anc that it is not an explosive compound.

The query is was the injury to the plaintiff the immediate consequence of the dumping of the boxes which contained the chloride of lime in glass tubes, or was it occasioned from her independent act in taking the glass tubes to her home, and in handling the same?

To sustain the position of the plaintiff the evidence must show that the injury to her could reasonably have been contemplated as a result of the act of the defendant in dumping the boxes containing the bleaching powder in the city dump.

In Carpenter v. Miller & Son, 232 Pa. 362, 81 Atl. 439 and 36 L. E. A. (N. S.) 932, suit was instituted by the plaintiff Carpenter against the defendant Miller to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The defendant Miller was a wholesale dealer in confections and in connection with his business dealt in fireworks. The refuse which accumulated at his place of business was put into barrels and taken to and deposited on the dumping ground, leased by a man named Ludlow, who charged for the privilege of dumping it upon his lot. The children residing in the neighborhood of the lot used it as a playground against the protest of the lessee, who testified that notwithstanding all he had done to keep them off, they were continually upon it. The defendant took a wagonload of refuse from his store to the dumping ground and deposited it there, after paying the man’s usual price for doing so. Carpenter, the injured party then 12 years of age, and two companions picked out of this deposit candy and fireworks. The plaintiff took therefrom a piece of fireworks known as a “flower pot” and carried it to his home some distance away, and later in the day and after it became dark, accompanied by a younger brother, took it to a stone wall and lighted it. An explosion followed which resulted in injury, for which compensation was sought. In its decision the court said:

“The material facts in this controversy are not in dispute. The appellee was a wholesale dealer in confections, and, in connection with that business,, dealt in fireworks. The refuse which accumulated at his place of business was put into barrels, and taken to and deposited on a dumping ground leased by a man named Ludlow, who charged for the privilege of depositing it upon his lot. Children in the neighborhood of the lot used it as a playground, against the protest of the lessee, who testified that, notwithstanding all he had done to keep them off, they were continually upon it. On July 24, 1902, an employee of the appellee took a wagonload of refuse from his store to this dumping ground, and deposited it there, after paying the usual price for doing so. Charles F. Carpenter, the injured appellant — then twelve years of age — and two companions picked out of this deposit candy and fireworks. Young Carpenter took from it a piece of fireworks known as a flower pot. He carried this, to his home some distance away, and later in the day, after he had eaten his supper and it had become dark, accompanied by a younger brother, took it to a stone wall and lighted it. An explosion followed, which resulted in the injuries for which compensation is sought in this action. A verdict was directed for the defendant, and from the judgment upon it there followed this appeal.

“The dumping by the appellee of refuse containing fireworks on a lot where boys gathered to play is the negligence of which the appellant complains. Whether his doing so was negligence is a question upon which we need not pass, as it clearly appeared that the direct, proximate cause of the injuries sustained was something else. Under the uncontradicted testimony, the refuse, as. soon as deposited upon the ground, became the property of Ludlow. In addition to receiving a stipulated sum for the privilege of depositing it, whatever was in it became his property as soon as it was deposited on the lot. Counsel for the appellee contends, and with reason, that, after the refuse was thus sold to Ludlow, he alone was responsible for what was done with it. But on this we need not dwell. In dumping the refuse on the lot, no injury was done to the boy. After it had been dumped on the lot, nothing in it injured him there, and nothing in it would have injured him elsewhere, if he had left it alone. Instead of doing so, he and his companions dug out of it candy and fireworks; but in digging these out no injury was done to any one of them. Nothing done or left undone by the appellee caused injury to the boy on the lot where the alleged negligent act was committed. After taking out the flower pot he carried it to his home, without informing his parents that he had it, and, without their knowledge, later in the day took it to a stone wall for the purpose of lighting or setting it off. This he did, and the very serious consequences complained of followed from his act.

“There was nothing unlawful or unusual in appellee’s dumping refuse upon the public dumping ground. He did what is and has been constantly done in all thickly settled communities. In all rubbish heaps on dumping grounds there are to be found rusty iron, broken knives, bottles, and glass, and innumerable other useless articles, always likely to cause injury to boys who may dig them out and handle them; but it has never yet been held that one who thus does what is usual and customary is guilty of any negligence. Though there were unexploded fireworks in the refuse deposited by the appellee, they could have caused no injury unless fire was applied to them, while all the other articles enumerated might have caused injury without any intervening agency. The appellant and his companion might have handled the flower pot on the premises without the slightest danger of any injury to them unless they lighted it. The injury to young Carpenter was not the immediate consequence of the deposit of the refuse on the dumping ground, but resulted from his independent, intervening act in taking the flower pot from his home, to which place he had safely carried it, and setting fire to it some time afterwards.- His injury could not reasonably have been contemplated as the result of the appellee’s act in placing the rubbish on the lot. The boy’s own act was the direct, proximate cause of his injuries. Marsh v. Giles, 211 Pa. 17, 60 Atl. 315.

“The assignments of error are overruled, and the judgment is affirmed.”

The case of Carpenter v. Miller, supra, is similar to the one presented by the record in this proceeding. In some respects it was a stronger case on the part of the plaintiff than the instant case, because fireworks which caused the injury in that case, are known to be more or less dangerous.

We are of the opinion from what is disclosed by the record that the defendant could not be charged constructively with knowledge of the action of chloride of lime, or common bleaching powder, and the evidence fails to show any actual knowledge on his part. The plaintiff has cited a number of cases and relies particularly on Hallenbeck v. Wander & Sons Chemical Co., 189 N. Y. S. 334, which was a chloride of lime case". There is a distinction however between that case and Carpenter v. Miller, supra. In the Hallenbeck case, the defendant was the manufacturer of the compound known as bleaching powder or chloride of lime. That is not true in the case we are called upon to decide; the . defendant Miller was an ordinary junk dealer and so far as the evidence discloses, had no information relative to the action of the lime, when placed in glass tubes or confined in a receptacle.

We are of the opinion that the injury to the plaintiff was not the immediate consequence of the dumping of the boxes containing the tubes in question, but resulted from her independent intervening act; that her injury could not reasonably have been contemplated as the result of the dumping of the boxes containing the tubes.

In. conclusion we are of the opinion that this case falls within the rule announced in' Carpenter v. Miller, supra.

The judgment therefore, of the circuit court of Winnebago county is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. Illinois Zinc Company et al., Appellants, v. William G. Lynch et al., Appellees.
    Gen. No. 8,109.

      Opinion filed February 5, 1930.

      Heth, Lister & Collins and Oscar W. Hoberg, for appellants.
    Duncan & O’Conor and John M. Zane, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On December 10, 1928, appellants filed a petition in the circuit court of LaSalle county, setting forth that four of them were owners of lands in Vermilion township and that the fifth, Edith A. Woolcox, was a life tenant of seven acres of land in Eden township, abutting upon a public road called “Bailey Falls road” in said county; that appellees, Walter Clark and Wil- • liam Gr. Lynch, commissioners of highways of said respective townships, sought to vacate said Bailey Falls road and to lay out a new road in lieu thereof; that the Bailey Falls road lies partly in Eden and partly in Vermilion townships, as does also the proposed new road; that in all there were three attempts before said commissioners to effect said purpose; that each attempt was pursuant to two separate petitions, one to vacate the Bailey Falls road and the other to establish the new road; that a common-law writ of certiorari had been issued out of said circuit court in cause no. 31,454, for the review of the first proceedings ; that a petition had also been filed in said court, in cause no. 31,518, to review said second proceedings; that the present proceedings to vacate said road, etc., were instituted before any action was had in said cause no. 31,518; that the petition to review the second proceedings was dismissed by appellants before the petition here involved was filed; that the lands of appellant Woolcox abutted or adjoined said Bailey Falls road; that the lands of the other appellants were in close proximity to said road and so situated that its vacation would injuriously affect them; that said commissioners, in both the second and the third proceedings, assumed to grant the prayers of the petitions, and ordered the vacation of the Bailey Falls road and the laying out of the proposed new road, without any proceedings for the determination of the damages to appellants, said commissioners “having determined that no damages would be sustained by the proposed change.”

To the present petition for a writ of certiorari, appellees entered a motion to dismiss, and to have an answer filed by them considered in connection therewith. Said answer sets forth in substance that the second proceeding is separate and distinct from the third proceeding, and that the present petition only involves the third proceeding. On the hearing, the court confined its consideration to the third proceeding, and dismissed said petition, at the costs of the relators. To reverse said judgment, this appeal is prosecuted..

Appellants insist that they had the right to have considered the record in the second proceedings, and cite in support thereof Southworth v. Board of Education, 238 Ill. 190. In that case, the board of education had three times located or attempted to locate a schoolhouse site on property of one Elvira A. Southworth in the City of Rochelle. Two condemnation suits had been begun, neither of which had been tried. At page 193 the court says:

“By each of the three proceedings here attacked, the board sought to locate a site for the same schoolhouse, and in each it attempted to take a part or the whole of the ground that it attempted to take in each of the others. We think it was proper to review the entire record pertaining to the matter in the same proceeding. If in one proceeding the board had attempted to take a piece of real estate, no part of which was a part of that which it attempted to take in another, or if it had sought by one proceeding to locate a site for one schoolhouse upon one parcel, and had by a different proceeding sought to locate a site for another schoolhouse upon another parcel, a different question would be presented. ... We think the record in each instance shows, not in apt words but in language that cannot be misunderstood, that the board of education located the schoolhouse site on the property of appellant. ’ ’

Without further quoting from said cause, it clearly appears that the question there involved was quite different from the one involved here. In that case, the appellant’s property was clouded by three records, made by the board of education, all of which she was insisting were invalid on the face thereof. To have held differently would have meant that, in order to clear her property, three proceedings must have been prosecuted. No such situation is involved here, and the court did not err in confining its consideration to the third proceeding.

It is next insisted that the court erred in placing on appellants the burden of showing a lack of jurisdiction on the part of the commissioners to vacate the one road and to lay out the other. Counsel for appellants contend that, upon the filing of a petition averring facts which, if true, show a lack of jurisdiction, it thereupon becomes the duty of the court to grant the writ; and, upon the return of the writ, the hearing must then be had on the! record.

The answer filed by appellees in connection with their motion to dismiss sets forth in substance the • record of the third proceedings. This is so conceded by appellants in their brief and argument. If, therefore, that record disclosed that said commissioners had jurisdiction and had not exceeded such jurisdiction, and had not otherwise proceeded illegally, the court did not err in denying said petition. Rue v. City of Chicago, 66 Ill. 256-257; Hyslop v. Finch, 99 Ill. 171 184; Commissioners of Drainage Dist. v. Griffin, 134 Ill. 330-340; Troxell v. Dick, 216 Ill. 98-100; McDonald v. Road District, 292 Ill. 386-391. The question, therefore, on whom the burden of proof rested, became unimportant as, the transcript of the record being before the court, both parties were bound thereby so far as the matter of jurisdiction was concerned. Rue v. City of Chicago, supra, 257.

While appellants in their brief and argument con- . cede that the regularity and sufficiency of said proceedings must be determined alone from the record, on the hearing they offered testimony tending to the effect that certain of the notices required to be posted were not signed by the commissioners. Certain of the cases cited by counsel for appellants disclose that evidence of this character is not admissible. While this evidence was not properly admissible, even conceding that it was, evidence was offered on the part of appellees which clearly disclosed that, at the time said notices were posted, they were properly signed.

Appellants apparently take the position that it was not proper for appellees to bring before the court a transcript of the third attempt or proceedings, to be considered in determining whether or not the writ should issue. In Sampson v. Commissioners of Highways, 115 Ill. App. 443, this court had before it a petition for a writ of certiorari in a road proceeding, as a part of which petition a copy of the record sought to be reviewed was incorporated. The court, in determining the question as to whether the writ should issue, considered the transcript of the record attached to the petition and, in effect, held it to be a proper practice that the record should be so examined in determining whether the writ should issue. It would therefore seem to follow that, if the petitioners failed to exhibit said record, it was proper for appellees to do so, in order that the court might be fully advised in reference thereto in determining whether the writ should issue,

It is next insisted that the record of the third proceedings fails to show that any damages were awarded to appellants, or that that question was considered by said commissioners. The record discloses that said commissioners fomid and determined that the relators were not, nor were any of the parties interested in said proceedings, in any way damaged by reason of the vacating of said Bailey Falls road or the laying out of the new road. In their brief and argument, appellants concede that said commissioners “found and determined that no damages would be sustained by the proposed change.”

Said transcript discloses that said road is used but little, and at various times of the year is practically impassable, while the proposed new road is to be in every way an efficient one, with a bridge across the Vermilion River and a viaduct over the Chicago, Burlington and Quincy Railroad, to be constructed at a cost of $50,000 by the Marquette Cement Company as a part of the inducement tendered by it.

Section 79, Cahill’s St. ch. 121, 87, provides among other things:

“Whenever the commissioners of highways of any town or road district . . . have entered a preliminary order as aforesaid for the establishment, vacation, widening or alteration of a road, and a survey therefor has been completed as hereinbefore provided, proceedings shall next be taken to fix the damages which will be sustained by the adjoining land owners by reason of such alteration, vacation, widening or laying out.”

The Marquette Cement Company owns the land over which the proposed new road is to be constructed, and has donated the right of way therefor, and is making no claim for damages. Under the provisions of the above-quoted statute, the damages which the commissioners were required to have determined were' the damages for lands taken by the proposed new road and the damages, if any, to the landowners adjoining either the proposed new road or the road to be vacated. Appellant Woolcox is the only person shown by the record who owns any lands adjoining the Bailey Falls road sought to be vacated, her interest therein being a life estate only, and only a small part of said tract abuts on said road. The record clearly discloses that she will not be damaged, but will be benefited by the vacating of the Bailey Falls road and by the laying out of the proposed new road. The record also discloses that 130 persons residing within two miles of the road sought to be vacated and the road to be laid out, petitioned that said work be done, and represented that there would be no damages to anyone in connection therewith. ,

In this connection, it may be observed that, under a former statute, the Supreme Court held that, where the lands of the persons objecting were not taken, and any damages they might suffer were consequential damages, the mere fact that the same were not ascertained in the proceeding to vacate an old road or to lay out a new road was not jurisdictional, as the damages, if any, suffered by the parties complaining could be recovered thereafter in an action at law. Hoag v. Switzer, 61 Ill. 294-296; Stetson v. Chicago & E. R. Co., 75 Ill. 74-77; Brown v. Robertson, 123 Ill. 631-634; Fesser v. Achenbach, 29 Ill. App. 373-376.

The writ of -certiorari is not a writ of right, but is addressed to the sound legal discretion of the court. Hyslop v. Finch, supra, 179; People v. Burdette, 285 Ill. 48-49; Sampson v. Commissioners of Highways, supra, 454; Board of Supervisors v. Magoon, 109 Ill. 142-146; Trustees v. School Directors, 88 Ill. 100-101 ; School Directors v. School Directors, 245 Ill. App. 447-451.

Taking into consideration the benefits to the public in connection with the vacation of the Bailey Falls road and the laying out of said proposed new road, as disclosed by the record, the trial court was amply warranted in exercising its discretion and in denying said petition.

It is also insisted by counsel for appellants that commissioner Clark signed the petition for the vacating of the Bailey Falls road and the laying out of the new road in the second proceeding, and that, while he did not sign said petition in the third proceeding, the signing of the second petition disclosed his interest and disqualified him to act as such commissioner as to said third proceeding. Eliminating the second proceeding, as we have held the court properly did, there is nothing in connection with commissioner Clark that in any way disqualified him.

It was also insisted that a brother and a sister of commissioner Clark signed the petitions in the third proceedings, and that, by reason thereof, Clark was disqualified. No authority was presented to support this contention, and it was practically abandoned in the argument.

It is also insisted that there is not a proper showing that the commissioners viewed or examined the routes of the roads involved, as required by the statute. The record discloses that said commissioners examined the routes involved, etc.; that appellant Woolcox was present in person at said meetings and the other appellants were there represented by their counsel; that the commissioners inquired if any of the parties present desired to go over said routes with the commissioners, and that none of them indicated a desire to do so. Appellants are therefore not in a position to urge this as a ground for the reversal of said judgment.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wilson

text:
    First District.
    Julius Salk et al., appellees, v. William D. Simmons, appellant.
    Gen. No. 33,354.
    Opinion filed November 6, 1929.
    John T. Murray, for appellant. Max Ward, for appellees; Al Martin Curtis, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Fred W. Neely, appellee, v. St. Paul Fire & Marine Insurance Company and Wm. T. Heinemann, defendants, on appeal of St. Paul Fire & Marine Insurance Company, appellant.
    Gen. No. 33,411.
    Opinion filed November 6, 1929.
    Rehearing denied November 22, 1929.
    J. B. Luse, for appellant. No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Charles Krauss, appellee, v. Paramount Construction Company, appellant.
    Gen. No. 33,428.
    Opinion filed November 6, 1929.
    Henry L. Phoenix, for appellant. Gerard M. Ungaro, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Mrs. William Zimmer, appellee, v. Bernard L. Voorhees, appellant.
    Gen. No. 33,437.

      Opinion filed November 6, 1929.
    Rehearing denied November 22, 1929.
    Culver, Andrews & King, for appellant. Henry J. Berman, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Steve Bolleck, appellee, v. Samuel Vig, appellant.
    Gen. No. 33,458.
    Opinion filed November 6, 1929.
    Rehearing denied November 22, 1929.
    Ringer, Wilhartz & Hirsch and Joseph D. Irose, for appellant; Ben A. Stewart, of counsel. Eugene V. .Taylor, for appellee; Charles H. Pease, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    P. J. Bassett, trading as P. J. Bassett & Company, appellant, v. Frank Ives, appellee.
    Gen. No. 33,351.
    Opinion filed November 6, 1929.
    Colan & Hall, for appellant. Varian B. Adams, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    B. C. Zernes, trading as B. C. Zernes & Company, appellant, v. Emanuel J. Goodman, appellee.
    Gen. No. 33,363.
    Opinion filed November 6, 1929.
    Harry C. Diamond and L. L. Smith, for appellant; Jacob Diamond, of counsel. No appearance for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Helen A. Russell, appellant, v. Bernard M. Snow, appellee.
    Gen. No. 33,425.
    Opinion filed November 6, 1929.
    Charles J. Russell, for appellant. No appearance for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    G. W. Cramer, appellee, v. William D. Murdock, appellant.
    Gen. No. 33,445.
    Opinion filed November 6, 1929.
    Rehearing denied November 22, 1929.
    John H. Hill, for appellant. Winston, Strawn & Shaw, for appellee; John C. Slade and Thomas A. Reynolds, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr, Justice Holdom

text:
    Rae Keim, petitioner and administratrix of the estate of Joseph Keim, deceased, appellant, v. J. D. Williams et al., appellees.
    Gen. No. 33,482.
    Opinion filed November 6, 1929.
    B. M. Shaffner, for appellant. Moses, Kennedy, Stein & Baehrach, for appellees; Seymour A. Greenblatt, of counsel.
   Mr, Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Ryner

text:
    Peter Peerbolte Company, Inc., defendant in error, v. Walter S. Schell, Inc., plaintiff in error.
    Gen. No. 33,254.
    Opinion filed November 6, 1929.
    McKinney, Lynde & Crear, for plaintiff in error; Hayes McKinney and William Edward Dever, of counsel. Cloyes & Klingler, for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Mignon Compart, by Florence Compart, her mother and next friend, plaintiff-appellee, v. F. E. Tarrant, defendant-appellant.
    Gen. No. 33,308.
    Opinion filed November 6, 1929.
    Francis F. Moran, for appellant; Thomas J. Young, of counsel. Rubenstein & Rubenstein, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Henry Brelie, appellee, v. David Saul Klafter and Amanda E. Klafter, appellants.
    Gen. No. 32,815.

      Opinion filed November 8, 1929.
    Perlman, Goodman & Seolnik, for appellants. Loueks, Eckert & Peterson, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Julius Friedman, administrator of the estate of Ben Manfield, deceased, appellee, v. Joseph Peckler, impleaded with Modern Woodmen of America, appellant.
    Gen. No. 33,738.
    Opinion filed November 27, 1929.
    William A. Rogan and Morton Jacobson, for appellant; William C. Burns and R. Hamlin Petty, of counsel. Campbell & Fischer. and Latham Castle, for appellee; John G. Campbell and Herman A. Fischer, Jr., of counsel.
   Mr. Presiding Justice

Wilson delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Morris Rosenbaum et al., appellees, v. Leza Sapoznik et al., appellants.
    Gen. No. 33,980.
    Opinion filed December 16, 1929.
    Aaron Soble, for appellants. Yale & Yale, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    Harry Barlos, appellee, v. John J. Therman, appellant.
    Gen. No. 33,541.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Loueks, Eckert & Peterson, for appellant; W. W. Patterson, of counsel. Morris K. Levinson, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Ahlbell Battery Container Corporation, appellant, v. Snyder & Hay, Inc. and Foreman Trust & Savings Bank, appellees.
    Gen. No. 33,551.
    Opinion filed December 31, 1929.

      George F. Barrett, Charles V. Barrett and William O. Wermuth, for appellant. Spencer, Barker, Bryan & Snell and Clinton Merrick, for certain appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Sam Rosenberg et al., appellees, v. Zurich General Accident & Liability Insurance Company, Ltd., appellant.
    Gen. No. 33,581.
    Opinion filed December 31, 1929.
    George A. Schneider, for appellant. Moses, Kennedy, Stein & Bachrach, for appellees; Hirseh E. Soble, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Benjamin M. Jacobson, appellee, v. City of Chicago, appellant.
    Gen. No. 33,590.
    Opinion filed December 31, 1929.
    Samuel A. Ettelson, Corporation Counsel, for appellant; Samuel L. Golan and Cora B. Hirtzel, Assistant Corporation Counsel, of counsel. No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Celle Becker, appellee, v. Alfon E. Bahr, appellant.
    Gen. No. 33,599.
    Opinion filed December 31, 1929.
    Harold O. Mulks, for appellant. No appearance for appellee. .
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    S. Baer, appellee, v. Metropolitan Petroleum Company and Nat Rue, appellants.
    Gen. No. 33,617.
    Opinion filed December 31, 1929.
    Myron E. Wisch, for appellants; Sidney R. Tarkoff and Nathan Einhorn, of counsel. Harry Z. and Bernard Perel, for appellee; Abraham H. Mailer, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Robert A. Uihlein, appellee, v. E. N. Ascherman, M. D., appellant.
    Gen. No. 33,626.

      Opinion filed December 31, 1929.
    Mandel Mendelson, for appellant. M. L. Carinody, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Hask Jacobs, appellee, v. Sadie Russell, appellant.
    Gen. No. 33,639.
    Opinion filed December 31, 1929.
    Frank F. Trunk, for appellant. Carlyle S. Guibor, for appellee.
   Mr. Presiding Justice Barnes

delivered the opiniok of the court.


text:
    Jacob Gidwitz, plaintiff in error, v. Western Machine Works, defendant in error.
    Gen. No. 33,655.
    Opinion filed December 31, 1929.
    Alfred Beck, for plaintiff in error. John R. Ong, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Marian B. Jackson, appellant, v. James P. Jackson, appellee.
    Gen. No. 33,674.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Rathje & Connor, for appellant; Emmet J. Cleary, of counsel. Hugh R. Porter, for appellee; Harry F. Brewer, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    H. M. Hardy, appellee, v. Mary Potter Smith, trading as The Peoples Garage, appellant.
    Gen. No. 33,695.
    Opinion filed December 31, 1929.
    Kelley & Murphy, for appellant. Arne B. Hummeland, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the cdurt.


text:
    Verna Mesunas, appellee, v. Anton Marshall, appellant.
    Gen. No. 33 740.

      Opinion filed December 31, 1929.
    Blaine Brooks Gernon, for appellant. No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    William E. Fox, appellee, v. Helen E. Fox, appellant.
    Gen. No. 33,750.
    Opinion filed December 31, 1929.
    Isidore Levin, for appellant; H. H. Christenholz, of counsel. M. D. Dolan, for appellee; B. A. Cummins, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Gunnar Anderson, by Sieverth Anderson, his next friend, appellee, v. Jacob Ludvigsen, appellant.
    Gen. No. 33,593.
    Opinion filed December 31, 1929.
    Miller, Gorham & Wales, for appellant; Edward B. Adams and Herbert C. DeYoung, of counsel. Tenney, Harding, Sherman & Rogers, for appellee; L. Dow Niehol, Jr., of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Charles L. Agne, appellant, v. Alvin Sabel and Ben Zivof, trading as Famous Garage, appellees.
    Gen. No. 33,602.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Golden & Kagan, for appellant. Julian J. Luster, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Morris Levinkind, appellee, v. Silas Ropp et al., defendants, on appeal of Sheridan Trust Safe Deposit Company, appellant.
    Gen. No. 33,620.
    Opinion filed December 31, 1929.
    Ernest A. Eklund and Frederick J. Bertram, for appellant. Peden, Kahn & Murphy, for appellee; Gerald Ryan, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Bridget Mooney, appellee, v. Yellow Cab Company, appellant.
    Gen. No. 33,633.
    Opinion filed December 31, 1929.
    Samuels, Costello & Greenberg and Bose & Symmes, for appellant. V. Bussell Bonaghy and Stuart B. Krohn, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Jack Brusk, defendant in error, v. Irving Royack et al., plaintiffs in error.
    Gen. No. 33,663.
    Opinion filed December 31, 1929.
    Gallagher, Shulman & Abrams, for plaintiffs in error. Haffenberg, Kopald & Burns, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


author: ' Mr. Justice Gridley

text:
    Frank Ott, appellee, v. L. F. Hammel and Idaline R. Hammel, appellants.
    Gen. No. 33,722.
    Opinion filed December 31, 1929.
    Isaac B. Lipson, for appellants; Randolph Thornton, of counsel. No appearance for appellee.
   ' Mr. Justice Gridley

delivered the opinion of the court.


text:
    United States Wicker Furniture Company, appellee, v. Lakeside Upholstering Company, appellant.
    Gen. No. 33,733.
    Opinion filed December 31, 1929.
    Mort D. & Frank Goldberg, for appellant; Frank Goldberg and ' Harry G. Hershenson, of counsel. Haffénberg, Kopald & Burns, for appellee; Harry E. Kopald and Joseph Rosenbaum, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    John Griffiths & Son Company, appellee, v. Fred Mann and Gustav Mann, appellants.
    Gen. No. 33,277.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.

      Pines, Morse & Stein, for appellants; Clarence T. Morse, of counsel. Campbell & Fischer, for appellee; Carlton L. Fiseher and Raymond P. Fischer, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Charles A Dawell, appellant, v. Union Trust Company, appellee.
    Gen. No. 33,410.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Norman A. Beck and Otto G. Ryden, for appellant. Gann, Secord & Stead, for appellee; Guy Van Sehaick, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Tehama Janice Writer, appellee, v. Bernard W. Snow, bailiff of the municipal court of Chicago and S. Rugendorf, defendants. S. Rugendorf, appellant.
    Gen. No. .33,548.
    Opinion filed December 31, 1929.
    Malkin & Malkin, for appellant. Joseph O. McKiernan and Cecil Smith, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William W. Witt, appellee, v. Security Trust & Deposit Company, appellant.
    Gen. No. 33,569.
    Opinion filed December 31, 1929.
    Pines, Morse & Stein, for appellant; Alvin B. Stein and Philip Appel, of counsel. K. B. Czarneeki, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The T. A. Snider Preserve Company for use of Hartford Accident & Indemnity Company, appellant, v. The Peoples Trust & Savings Bank of Chicago, appellee.
    Gen. 33,578.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Schuyler, Weinfeld & Parker, for appellant; Carl. J. Appell, Henry E. Jacobs and Howard D. Moses, of counsel. Dent, Dobyns & Freeman, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    W. C. Handley, appellee, v. E. H. Robinson, appellant.
    Gen. No. 33,587.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Cohen & Berke, for appellant; Harry F. Brewer, of counsel. Nuttall & Chism and Newby & Murphy, for appellee; Harry A. Newby, Arch. F. Nuttall and Geo. M. Burditt, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Samuel Bright, appellant, v. Sam Lipavsky et al., appellees.
    Gen. No. 33,605.
    Opinion filed December 31, 1929.
    Louis T. Herzon, for appellant; Rosenberg, Braude & Zimmerman and Blanksten, Freeman & Blanksten, for appellee; H. J. Rosenberg and Irving Berman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William J. Savage, appellee, v. Claude W. Morris and Nicholas M. Ellis, appellants.
    Gen. No. 33,614.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Austin L. Wyman, for appellants; Harold Engstrom, of counsel. Hubert E. Page, for appellee.
   Mr. Justice Scanlan

delivered the opinion of fhe court.


text:
    Harry M. Stern et al., appellants, v. Louis Fishman and Herman Fidler, appellees.
    Gen. No. 33,623.
    Opinion filed December 31, 1929.
    Woods, Bishop & Cohen, for appellants; John E. Foster, of counsel. Gallagher, Shulman & Abrams, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Otto B. Lawrenz, appellee, v. Waller E. Loeber, appellant.
    Gen. No. 33,636.

      Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Kamfner, Horwitz, Halligan & Daniels, for appellant. Frederick A. Bangs, for appellee; Martin Crane, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    May Cummings, appellee, v. Maggie C. Windham, appellant.
    Gen. No. 33,645.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Henry C. Ferguson, for appellant; A. G. Rosenbaum, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Edmund P. Tuohy et al., executors of the estate of Joseph A. Mclnerney, deceased, defendants in error, v. Henry Ullrich, plaintiff in error.
    Gen. No. 33,648.
    Opinion filed December 31, 1929.
    Harold O. Mulks, for plaintiff in error. Mclnerney & Power, pro se, for defendants in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Thomas J. Cooney, defendant in error, v. G. H. Scholz, plaintiff in error.
    Gen. No. 33,670.
    Opinion filed December 31, 1929.
    Edgar H. Deets and Henry J. Gibbs, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.