text:
    Farmers and Merchants Bank of Vandalia, Appellee, v. L. B. Holland, Appellant. Rachel Harner et al., Appellees.

      Opinion filed March 1, 1941.
    F. R. Wiley, of Decatur, for appellant.
    Matheny & Welker, of Vandalia, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

The Farmers and Merchants Bank of Vandalia, Illinois, hereinafter referred to as the complainant, filed a hill of interpleader to determine whether $1,200, held by it in escrow, should be returned to the depositors thereof, Mr. L. B. Holland, hereinafter referred to as the appellant or whether it should he paid to Rachel Harner, Joseph Pershing Harner, and Ida Mae Durbin, hereinafter referred to as the appellees.

It appears from the record that the appellant entered into a contract with the appellees to lease from them the northwest quarter of the southeast quarter of section thirty-six (36) township seven (7) N., R. 3 east of the third principal meridian, which real property the appellees stated they owned in fee simple. The terms of the lease, which was a usual oil and gas lease provided that the appellant deposit $1,200 with the complainant as escrow holder, which $1,200 was to become the property of the appellees when the ap-pellees’ attorney had approved the title to the aforesaid realty. The other provisions of the lease need not now concern ns.

Appellant’s attorney withheld approval of title to the realty aforesaid for reasons which are amply described in the record and which, as will be cited hereafter need not be dealt with in this opinion. The ap-' pellees contend that they have complied with the terms and conditions of the contract and seek release of the $1,200 held in escrow by the complainant. The appellant contends that the appellees have not complied with the provisions of the contract and refuses to release the money.

Therefore, the sole question to be decided by this court is, whether or not the terms of the contract have been complied with.

The contract provides that the appellant is “to begin drilling a well within thirty days after approval of title by any attorney of the second party’s choice.” The attorney for the second party’s choice never approved the title. That point is not in dispute but is admitted by both parties to the litigation. The question then, is whether the attorney of the appellant withheld approval because of the doubt which would come to the mind of “a reasonable-minded attorney who was acting in entire impartiality between the parties” (Kincaid v. Dobrinsky, 225 Ill. App. 85, 89), or whether his approval was withheld because of his client who had changed his mind about the advisability of the transaction into which he had entered.

The record indicates that a prior similar lease had been made between the appellees and one Essex and that the physical evidence of this lease had been destroyed by one of the appellees. It is not clear from the evidence whether or not this lease had been fully executed but it does seem clear from the evidence that the possibility of its exigency was such that action by some court might have been necessary in order that the appellant receive a clear title to the property in question. It is well settled at law and is not disputed in the brief of the appellees that the destruction of the physical evidence of a lease (as such in this case existed) in no way impairs its validity. Havice v. Havice, 257 Ill. 393; Metropolitan Trust & Savings Bank v. Perry, 259 Ill. 183; Standard Trust £ Savings Bank v. Fernow, 317 Ill

It is a well-settled law in Illinois that a title to be marketable must not be subject to a reasonable probability of litigation. 66 Corpus Juris, sec. 536, p. 867; Brelie v. Klafter, 342 Ill. 622; Hayne v. Fenton, 321 Ill. 442; Cobb v. Willrett, 313 Ill. 92. It appears from the record and from the testimony of Essex that in all probability subsequent litigation would ensue if the appellant consents to the transaction. (Abstract of record, page 29.)

The contract further provided that the appellant was bound to fulfill his part of the bargain only after an attorney of his choice had approved the title. Ap-pellees seek to overthrow by evidence that such approval was withheld because of appellant’s misfortune in another oil venture. This court will not assume, upon such meager evidence that a member of this Bar in good standing would under circumstances similar to those here shown by the evidence withhold his approval of a title upon such mala fide instructions of his client.

In Kincaid v. Dobrinsky, supra, a case cited with approval by both appellant and appellees, this court held that an attorney is justified in withholding his approval of an abstract of title where he is acting in entire impartiality between the parties and where he was a “reasonably good lawyer.” The burden is, therefore, upon the appellees to show that the attorney of the appellant was not a reasonably good lawyer and did not act in entire impartiality between the parties, but that in the withholding of his approval of the title he was acting partially and unreasonably. There is no evidence in the record to support such conclusion. Furthermore, if the attorney in question failed to approve a title upon which even this court entertains no doubt this is not of itself sufficient reason to indicate such disapproval is unreasonable or capricious. For “although the court has a favorable opinion of it (the title), yet it may reasonably and fairly be questioned in the opinion of other competent persons.” Street v. French, 147 Ill. 342; Bauman v. Stoller, 139 Ill. App. 393. Nothing appears in the record to show that approval was withheld by appellant’s attorney for any reasons other than those which might occur to a reasonable and careful man versed in the law. This being true the appellees have not fulfilled their contract which calls for a title of such a nature as to be approved by the attorney of the appellant. It therefore follows that the $1,200 on deposit with the complainant still belonged to the appellant and that the lower court was in error in saying that this sum be paid to the appellees.

This case is reversed and remanded to the circuit court of Fayette county, in order that a decree may be entered consistent with the opinions expressed herein.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    Louise Lamprecht, Appellant, v. James Gedda and Neinda Gedda, Appellees.

      Opinion filed March 1, 1941.
    Turner, Holder & Ackermann, of Belleville, for appellant.
    F. E. Merrills, of Belleville, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Appellant brought her suit in chancery for specific performance of the following memorandum, called in the pleadings, a contract:

“E. St. Louis, Ill.
May 10, 1938.
“Received of V. C. Leo, $10.00 as deposit for the sale of a piece of property being a part of lot No. 11, containing one acre more or less with the improvements thereon as shown on plat . . .. for the consideration of $1500.00 in cash and other consideration being a lot located at 75 N. State St. 50 ft. by ... in E. St. Louis, Ill. Being Lot No. and Block . . . Said lot to be clear and free including taxes paid up to date. I further agree to furnish a certificate of title to show my property clear and free including taxes paid up to date. In case I am not able to furnish a clear title then I am to return the deposit back.
“Expenses for the certificate of title to be paid by the buyer.
“In case there should be trouble by the present railroad crossing either by the railroad people or any one else having control I agree to return deposit.”
“James Gedda
Neinda Gedda.”

She sought by means of specific performance to compel appellees to convey to her by warranty deed the lands described in the complaint. Appellees moved to dismiss the complaint for the following reasons: First, that no privity of contract exists between appellant and appellees; second, that the contract is wholly unen-forcible in that it fails to describe the premises that are to be conveyed; third, that the lots sought to be exchanged with the defendants are not described; fourth, that the contract does not show that appellant is the owner of any premises on State street in East St. Louis; fifth, that appellees cannot enforce a specific performance of any premises to them by appellant; also, that there is a failure of consideration.

The books are literally teeming with cases which hold that a contract for the sale of land must definitely point out the land to be conveyed, or furnish the means of identifying it with certainty before a court of equity will decree specific performance; that such contract cannot rest partly in parole and partly in writing; that where a description of the property contains an ambiguity appearing on the face of the writing itself the uncertainty of the description cannot be curéd by extrinsic evidence. Many of these cases are collected and their conclusions reiterated in Crocker v. Smith, 366 Ill. 535.

This so-called contract in our judgment is subject to all of the objections leveled against it. It does not name the parties; nobody is bound by it, unless by a strained construction the appellees might be, — certainly the appellant is not; it does not at all describe the property to be conveyed either by the defendants or the property to be exchanged therefor, so that anybody can find either piece. Standing alone it comes within the long list of cases referred to and is nnen-forcible.

Appellant, without any reference to such a thing in his complaint, claims in this court the right to title by reason of a parole contract. The complaint is silent on that subject. She also claims the right to performance and to warranty deed by reason of the fact that she took possession and tendered payment. The offer to make the deed to the lot she owned, if such offer were in fact made, might under the so-called agreement, be any lot that she wished to offer which came anywhere near the partially described premises in the memorandum. Certainly, if the matter were the other way round, appellees could not enforce specific performance against the plaintiff.

We hold that this so-called contract is entirely unen-forcible, notwithstanding that plaintiff is now in possession of the property described in the complaint.

The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr.. Presiding Justice Stone

text:
    J. A. Barnett, Appellant, v. Norman B. Pitcairn and Frank Nicodemus, Jr., Receivers of Wabash Railway Company, Appellees.
    Opinion filed March 1, 1941.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis for appellees.
   Mr.. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal taken by J. A. Barnett, appellant (hereinafter designated as plaintiff), from a decree of the circuit court of St. Clair county, dismissing, for want of equity, his amended complaint for a mandatory injunction against Norman B. Pitcairn and Frank Nicodemus, Jr., receivers of the Wabash Railway Company appellees (hereinafter designated as defendants). Other parties were made defendants in the lower court but appeal was perfected by appellees only.

By this complaint plaintiff sought a mandatory injunction compelling the defendant railroad receivers, by whom he was formerly employed, to restore him to his place on the railroad seniority roster, from which it was alleged his name had been wrongfully removed; to recognize an employee-employer relationship, and to certify such recognition to the Railroad Retirement Board at Washington, D. C.

The case was tried upon plaintiff’s amended complaint, defendant’s answer, plaintiff’s reply, and defendant’s answer to such reply. The amended complaint alleged in substance, that plaintiff was an employee, a car inspector, for defendant company. That he was furloughed or laid off from work on February 28, 1932, by reason of economic conditions causing a reduction of force; that by reason of plaintiff’s union’s employment contract, the customs, usages and understanding existing between an employee and a railroad, on being employed he became vested with seniority rights, which rights continued during the furloughed period. The amended complaint further alleges that during such furloughed period, plaintiff, without being-discharged, was wrongfully and improperly removed by defendants from the seniority roster of car inspectors at their Brooklyn Yards, and as a consequence thereof lost his seniority rights and that his employee status was severed, that by reason of such wrongful cessation of the employer-employee status, plaintiff who was otherwise qualified to receive the pension benefits under the Railroad Retirement Act was deprived thereof because of defendant’s failure to certify him, as an employee on the effective date of the Railroad Retirement Act. Plaintiff prayed that by order of court defendants be compelled to restore to plaintiff, his seniority standing and rights and certify his employee status to the Railroad Retirement Board.

Defendant’s answer averred, with reference to reemployment of furloughed men, that the senior furloughed men would be given preference for only 10 days. That it was the custom and practice up to the time that the Brotherhood of Railway Carmen of America, one of the defendants in the lower court, became the bargaining agent for the shop employees of defendant at the Brooklyn Yards, after a reduction in the force, to inform the members of the Shop Crafts Committee of the Shop Employees Association, Wabash Railway Company, another defendant in the trial court, of any contemplated increase in force, and that the members of the committee would then endeavor to notify the man who was last furloughed and who was the oldest or senior in service, and whose name appeared first on the seniority roster of the increase in force, so that such employee might be given first opportunity to return to service.

To this answer, plaintiff replied that it was the primary duty of defendants to -notify a furloughed employee of any increase in force; that it was the custom and practice of defendants either to have such employee notified personally or to send to the last-known address of such furloughed employee, a letter or telegram notifying him of a contemplated increase in force, and that such employee was thereby called for duty. Issue was joined on these allegations by defendant’s answer to said reply.

An issue of fact was also joined on the proposition alleged in defendant’s answer and denied in plaintiff’s reply thereto, that early in 1934, there was a position open as car inspector; that plaintiff had not left his address so that he could be notified through the proper channels; that defendants were informed in substance that plaintiff did not desire any position with them, and that he had not applied to them for re-employment, because of which fact plaintiff’s name was taken off the seniority roster.

After a hearing on the merits, the trial court dismissed plaintiff’s amended complaint, for want of equity.

It is admitted by plaintiff, that no serious question of law is presented in the appeal, and the principal errors relied upon for reversal are that the evidence justified a finding that the equities were with the plaintiff and entitled him to the relief prayed for and that the decree of the trial court is against the manifest weight of the evidence.

There was offered in evidence by plaintiff and admitted by the court, rule 14 and rule 21B governing the working conditions at the place in question.

Bule 14, provided in substance, that when new jobs are created, or permanent vacancies occur, in the respective crafts the immediate supervising officer or foreman should notify the committee to that effect before the position is filled and that the committee should have a reasonable time to give verbal notice to' employees who wish to make- application for the vacancy, and that in filling such position the oldest qualified employee in point of seniority should be given the preference.

Buie 21B provided that in the restoration of forces, senior laid-off men would be given preference, if available within a reasonable time (10 days to be considered a reasonable time), and will be restored to their former positions when such positions are permanently restored, according to their seniority. Until such positions are restored they may be used on any work pertaining to their craft.

Defendants offered in evidence section J of rule 25, which was admitted in evidence by the court. This provided that an employee who has been furloughed for a continuous period of 18 months will be considered as out of service permanently and his name will be dropped from the seniority roster.

Plaintiff Barnett testified that when he was furloughed in February, 1932, he was unable to secure employment of any kind in or near Granite City, and went to live on his brother’s farm at Decatur, Indiana. Before he moved -his family to Indiana, Barnett told Mr. Marx, car foreman, for defendants, that if work ever picked up he wanted him to let him know and claims that Marx said he would. He testified to other conversations with Marx about wanting work, and with other members of the union committee, telling them where he would be, in the event of work being available. Plaintiff also testified that he corresponded regularly with Mr. Cant, a fellow car inspector, who was regularly employed by defendants. Barnett’s testimony was further to the effect that he refused to take a job as an extra car inspector after being advised by Cant, so plaintiff claimed, that it was a temporary job, of about 2 days a month duration.

On behalf of defendants, Cant testified that in 1932 he was requested by the Shop Crafts Committee to inform plaintiff to report at once for car inspector’s job at Brooklyn Yards, that he did so inform him, and in reply plaintiff wrote him that he did not care to come back to work, unless he be guarantied a permanent job. Witnesses testified that he subsequently visited plaintiff and that he told witnesses that he would not work for the Wabash any more.

Horace Creen, H. G. Pierce, and Don Keiser, members of the Shop Crafts Committee, all testified in substance that there was a job open as car inspector, and that word came back from plaintiff, through Cant, after Cant had notified him at the request of the committee that plaintiff would not take the job and at that time his name was taken from the seniority roster.

The question as to whether or not plaintiff’s name was wrongfully stricken from the seniority roster; whether the job offered him in 1934 was permanent, or temporary, whether or not the 18 months’ furlough rule was waived by defendants, as claimed by plaintiff, were all questions of fact raised by the pleading and submitted to the court, and decided contrary to plaintiff’s contention.

In a case where the question of whether or not plaintiff sustained his claim depends upon the credibility of the witnesses, and the chancellor hears the testimony in open court, and finds against the claim of plaintiff, the plaintiff is not entitled to a reversal unless this court can say that the finding was palpably contrary to the weight of the testimony. Mackie v. Schoenstadt, 307 Ill. 398. We are not inclined so to hold, and the judgment of the lower court will be affirmed.

Affirmed.


text:
    Alvin C. Bohm, State’s Attorney of Madison County, Illinois et al., Appellants. James A. Giberson, Plaintiff, v. Fred F. Gerdes et al., Appellees.

      Opinion filed March 1, 1941.
    Wm. P. Boynton and Verlie, Eastman & Schlafly, both of Alton, for appellants.
    O’Neill & O’Neill, of Alton, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This cause was begun on November 26, 1930 by the filing of a bill for injunction by Alvin C. Bohm, State’s Attorney of Madison county, upon the relation of the Mississippi Lime and Material Company, a corporation, Eugene H. Milner, and James A. Giberson, against Fred F. Gerdes, M. C. Gabriel and Ed Jackson. For convenience, the bill will herein be referred to as the complaint and the relators as the plaintiffs. Appellees will be designated as defendants.

The complaint alleged that there was established in 1850 as part of the city of Alton an area known as “William Bussell’s Addition to Alton.” A portion of the area, fronting on the Mississippi Biver was dedicated as a public common, for the use of the public generally “never to be owned as individual or private property.”

The complaint further alleged that the defendants were making a wrongful use of the commons and encroaching upon it, by driving over the common with teams and trucks, excavating sand therefrom, hauling said sand and selling it. The complaint in substance prayed the issuance of an injunction restraining the defendants from using, occupying, holding or enjoying the common, for the purpose of going upon, over and across it with teams, trucks or other conveyances for the purpose of hauling any sand therefrom and from excavating therefrom any sand or other materials. Temporary injunction was issued in the language of the complaint. That part of the answer filed by defendants, which is material to the issues herein involved denied that the defendants were digging and excavating sand for sale, and averred that they were merely using a public highway to transport sand taken from sand bars in the Mississippi River.

Thereafter the cause was referred to the master in chancery to take testimony and report the findings of fact and conclusions of law.

The master, in his report filed with the court, found (1) that the land the defendants were enjoined from using was designed and dedicated as a public city common (2) that at the time the injunction was issued the common consisted of low-lying land on the north bank of the Mississippi River, covered with a. growth of willows, traversed by a wagon road, and contained a public city dump (3) that the defendant Gerdes and his employees drove wagons across the common and to a sand bar in the river, took from the bar a great amount of sand, and piled the sand on the common (4) that at the time of the injunction the pile of sand aggregated 3,000 cubic yards (5) that there was a stream of water between the bar from which the sand was obtained and “the bank of the river, or the southern boundary of the . . . Public City Common” (6) that the sand was not dug from the common, and that the common was merely used for temporarily storing it, which was not a violation of the legal or prescribed use of the common (7) that the.common was used generally by the public in the same manner that the defendants used it, and that Gerdes ’ use of it did "not obstruct others’ use of it and in no way interfered with the right of the public to enjoy it (8) that after Gerdes was enjoined from taking sand from the pile others came and took it, causing Grerdes to sustain a loss and (9) that at the time Grerdes was piling sand on the common it was selling at about $1 a ton.

He recommended the dissolution of the injunction and the dismissal of the defendants.

The plaintiffs objected to all the adverse findings and recommendations of the master, which objections were overruled. They were also overruled by the court, which had ordered them to stand as exceptions.

On the same day the plaintiffs sought to amend their complaint and have the matter re-referred to the master. In substance, the amendments sought would have (1) described the common specifically as extending, on the south, to the middle line of the main channel of the Mississippi River (2) charged the defendants with taking sand from the river at a point north of the middle line of the main channel, and thus from the common, and (3) alleged that the defendants took sand from a navigable stream (the Mississippi River) without permission from the Secretary of War, in violation of 30 U. S. Statutes at Large, page 1151 (U. S. C. A., tit. 33, sec. 403), and thus the defendants had no title to the sand.

The trial court refused to permit the amendments.

Thereafter, the defendant Grerdes filed his amended suggestion of damages, founded principally on the loss of 3,000 cubic yards of sand valued at $3,000. The plaintiffs answered the suggestion by alleging, inter alia, that the south boundary of the common extended to the middle line of the main channel of the river, and that the sand was taken from within that boundary and the defendant Gerdes therefore had no title to it; and that no permission of the Secretary of War had been obtained by Gerdes to take the sand from the river, in violation of 30 U. S. Statutes at Large, page 1151 (U. S. O. A., tit. 33, sec. 403).

The trial court sustained the suggestion of damages (except as to a portion seeking counsel fees) and found that Gerdes was entitled to damages in .the sum of $3,000. Thereafter, upon minor corrections in the record, it entered its decree substantially in accordance with the master’s recommendations and its finding, dissolving the injunction and awarding judgment in favor of Gerdes against the plaintiffs appellants for $3,000. The instant appeal was thereupon taken.

The error assigned, that the trial court erred in dissolving the injunction granted to plaintiff, is not argued by plaintiffs in their brief and will be presumed to be waived. By the lapse of time, that question has become more or less one of abstract right and we do not deem it necessary to discuss it.

It is assigned as error and argued by plaintiffs that the title of Illinois proprietors to land on a river extends to the thread of the current or main channel, that the defendant dug sand from within such thread and therefore the sand taken by him was taken from the public city common and that he obtained no title thereto, and therefore would not be entitled to damages in the sum of $3,000 assessed by the lower court.

We do not deem it necessary to pass upon the proposition as to whether or not the boundary of the commons was the thread or middle of the channel of the river, as contended by plaintiffs, or merely the bank of the river, as earnestly contended by defendants. The only question necessary for this court to pass upon, is the action of the lower court in allowing the defendant Gerdes the sum of $3,000 damages on the suggestion of damages, after dissolution of the temporary injunction. The material question to be determined is whether or not the defendant Gerdes was the owner of the sand piled admittedly upon the common by said defendant, which it is claimed was taken away by third persons and by the action of the waters of the Mississippi River. We believe that question can be determined upon defendant Gerdes’ theory as to how he allegedly took possession of the sand.

There are according to Blackstone, twelve principal modes of acquiring title to personal property, namely by occupancy, by prerogative, by forefeiture, by custom, by succession, by marriage, by judgment, by gift or grant, by contract, by bankruptcy, and lastly by testament and administration. 2 Blackstone Comm., p. 400.

Schouler says, with reference to acquiring title to personal property by occupancy, which would be the only one of the above classifications that defendant could possibly claim under, “On the whole . . . the means of acquiring title to chattels by occupancy are strictly confined under modern practice. Not only has the primitive right itself disappeared far into the early domains of history, but occupancy even- as applied to perfected chattels which are casually thrown open to ownership has been greatly hedged in by soverign command and public legislation. The tendency of our modern jurisprudence is clearly to take from the individual all title to valuable goods abandoned lost or stolen — to all chattels in fact which have no known owner — and to vest the privileges, present and prospective, of a finder, in the State.” Schouler, Pers. Prop., vol. 2, p. 30.

In the instant case the sand was not procured from some wilderness, or unclaimed domain, but from the bed of a navigable river, on the water front of a city of thirty thousand people.

We cannot conceive that under the record in this case, defendant Gerdes established his ownership of the sand in question, under any of the nomenclature laid down by Blackstone. He says, “We got sand out of the river bed in the fall of 1930 and 1931, when the river was low. We put it on the bank of the river.” (Abst. 26.) What he did was to move a portion of a sand bar, which was part of the bed of a navigable river, to the bank of that river, upon a public common. There is considerable controversy about whether or not defendant Gerdes secured the sand in question from what constituted the common, and much contrariety of opinion as to the boundary of that common, but there is no question but what he placed this sand upon the common. The following questions were asked and the following answers given by him.

Q. What would you say when the river is low?

A. That was river land.

Q. Who does that belong to?

A. The government.

Q. This sand you piled on the “'City Common?”

A. Yes sir. (Becord 105.)

So according to his own testimony he merely moved this sand from a bar in the Mississippi Biver to land established as a public ground of the city of Alton, never to be owned as individual or private property.

It is provided by 30 U. S. Statutes at Large, page 1151 (U. S. C. A., tit. 33, sec. 403) of which court will take judicial notice, that, “It shall not be lawful to excavate or fill, or in any manner to alter, or modify, the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or enclosure within the limits of any backwater, or of the channel of any navigable river of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.”

It is contended by defendants that no reference to violation of federal requirements was made by plaintiffs either in their complaint or in the injunction. That was not necessary. It was vital that the defendant Gerdes, before he was entitled to damages, show that he was the owner of the sand, which he claimed others took away and was washed away by the river, at the time the injunction was in full force and effect. He should have affirmatively shown that he had the authorization of the Secretary of War, if that was the fact, under this statute, in order to establish his title to the sand that he moved from the bar in the Mississippi Biver, which we take judicial notice is a navigable river.

For the purposes of this decision, we hold it immaterial whether the common in question ended at the river bank or extended to the middle of the main channel of the river. There was no question, under his own testimony that he excavated in the channel of a navigable river, for the purpose of taking this sand therefrom.

■ In Archer v. Greenville Sand S Gravel Co., 233 U. S. 60, 58 L. Ed. 850, the owner of property fronting on the Mississippi River brought suit to enjoin the defendant from dredging and taking sand out of that river. There the court, holding that the plaintiff was entitled to an injunction said, “We cannot help observing that the Gravel Company by its conduct has given an interpretation of the act (Federal Statute, supra) against its contention, unless indeed it wishes to confess itself a violater of public law in order to escape responsibility for a private injury. The Gravel Company tried to avoid this situation, saying, that a violation of the law camiot be imputed to it because it cannot be assumed that the ‘ extensive and continued dredging as alleged in the bill affecting necessarily the channel of the river, would be undertaken without proper authorization and authority, or that the proper officers of the government would have allowed these operations to continue. ’ The supposition is easily answered. There is no scheme of improvement of navigation suggested by the bill and it cannot be supposed that the Secretary of War would authorize the Gravel Company to take the material from the river for commercial purposes, and the bill alleges such to be the purpose. Besides, if the Gravel Company had authority from the Secretary of War, it is a matter of a defense to be pleaded.”

In the instant case, the answer of the defendants does not set up any scheme of improvement of navigation of the river, rather it alleges, “that they have been, until the temporary injunction in this cause by the complainant prayed and Tby this Honorable Court ordered, going upon, over and across a certain public roadway, . . . to the Mississippi River, and removing said sand from certain sand bars in the said Mississippi River, and hauling said sand away to sell for profit to divers persons having use for the same.” Defendant Gerdes testimony is to the same effect.

Certainly it cannot be supposed that the Secretary of War would consent to the taking out of the bed of a navigable river, 3,000 cubic yards of sand for the personal gain of some individual. If he did so consent it was a matter peculiarly within the knowledge of the defendants and should have been pleaded by them.

The case of Kessinger v. Standard Oil Company of Indiana, 245 Ill. App. 376, seems to us to be decisive of the issue involved in the instant case. In that case, the plaintiff had been engaged in excavating and removing sand from the Mississippi River near Wood River, Illinois about 5 miles from the commons involved in the instant case. The Standard Oil Company, the defendant, operated a refinery upstream from plaintiff’s plant. Wood River, a tributary of the Mississippi, ran through its property, and defendant dredged Wood River and caught great quantities of mud, silt and rock, to be discharged into the Mississippi, obstructing plaintiff’s operations in the removal of sand. There the Appellate Court said, ‘ ‘ The record discloses that appellee (plaintiff) did not limit the taking of sand to that part of the river adjoining the land covered by his lease, but took the same from various points in the river, both on the Illinois and the Missouri side. The Mississippi River, being a navigable stream, appellee (plaintiff) had no right to excavate or take sand therefrom without first having obtained the consent of the Secretary of War, so to do . . . Appellee cannot recover substantial damages against appellant (defendant) when as a part of his case he makes proof that he was taking sand from the bed of the Mississippi River without the consent of the Secretary of War, thereby violating a Federal statute. Ap-pellee had no property right in the taking of sand from the Mississippi River, and it therefore follows that the trial court erred in sustaining the demurrer to appellant’s . . . pleas.”

Inasmuch as defendant Gerdes did not establish title to the sand in question, the court erred in entering judgment in its decree, for the wrongful issuance of the injunction, in the sum of $3,000.

The decree of the circuit court will be reversed and the cause remanded, with directions to modify said decree in conformity with the views herein expressed.

Reversed and remanded with directions.


text:
    Lena Fitzpatrick, Appellee, v. California and Hawaiian Sugar Refining Corporation, Ltd., and Edward C. Gaskill, Appellants.

      Opinion filed March 1, 1941.
    Leahy, Walther & Hecker, of St. Louis, Mo., and Warnock, Williamson & Burroughs, of Edwardsville, for appellants.
    Frank E. Doyle, of St. Louis, Mo., and Ben M. Creamer, of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Plaintiff, who is the appellee, obtained a verdict of a jury in the sum of $7,500, afterwards reduced by re-mittitur to $5,000, against defendants who are the appellants, in the circuit court of Madison county in an action brought to recover for personal injuries suffered when the automobile in which plaintiff was riding collided with the rear end of the automobile of defendants on highway 66, about 2 miles north of Edwards-ville, Illinois.

The defendant, Edward G-askill, at the time of the collision, was employed by the defendant, California and Hawaiian Sugar Refining Corporation, Ltd. It is admitted that at the time of the accident, the defendant G-askill was employed by the defendant corporation, and was acting within the scope of his employment. Plaintiff’s husband, James L. Fitzpatrick was employed by Seavey and Flarsheim Brokerage Company, brokers for the aforesaid sugar refining company.

On April 15, 1939, Fitzpatrick and his wife, the plaintiff, drove from their home in St. Louis, to Witt, Illinois, where G-askill and Fitzpatrick showed a motion picture, concerning the manufacture of sugar. After the show, Mr. and Mrs. Fitzpatrick and G-askill, started home in their respective cars, stopping at Litchfield, on the way. Leaving Litchfield, they drove south on highway 66, G-askill’s car leading. It was raining and the pavement was wet. At one o ’clock in the morning, the two automobiles reached a point about 2 miles north of Edwardsville, where the pavement runs north and south. Both plaintiff and her husband testify that Fitzpatrick was here driving about 45 miles an hour, and defendant G-askill testified that he was driving about 40. Here Graskill’s car was about a hundred feet ahead of the car in which plaintiff was riding.

About 2 miles north of Edwardsville, a county road intersects highway 66 from the west at a right angle. As defendant G-askill’s car approached this intersection his attention was attracted to a car turned upside down in a ditch on the west side of the paved highway, about 10 feet south of the county road. G-aslrill slowed his ear down, eventually applying’ his brakes, and stopped on the pavement. The Fitzpatrick car collided with the back of the defendant’s car, in spite of the application of brakes and an attempt to turn to the left on the part of plaintiff’s husband. The plaintiff was thrown to the floor of the car and sustained injuries.

It is maintained by defendants that they are not guilty of the negligence charged against them, in that they did not make a stop upon the paved part of the highway, as is within the meaning of or is prohibited by the statute.

Chapter 9 1/2, sec. 185, Ill. Rev. Stat. 1939 (Jones Ill. Stats. Ann. 85.217) provides: (a) Upon any highway outside of a business, residence or suburban district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle he available from a distance of 200 feet in each direction upon such highway. ...(c) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.” Defendants contend that this statute has no application where an emergency or the exigencies of a situation compel a car to stop on the pavement, and cite cases from courts of other States in support of their contention. In all of these cases therg existed some emergency, some exigency, beyond the control of the driver. In all of those States, the prohibition was against the “parking or leaving” of the car on the highway, and not the stopping. In the instant case there was no emergency, beyond the control of the driver of the car which stopped on the paved highway. Defendant Graskill testified that his purpose in making this stop was to see if he could give some assistance to anybody that might have been hurt in the previous accident. It is argued on his behalf that it was not practical to drive off of the paved highway onto the shoulder, but there is no evidence in support of that, Graskill’s testimony in that regard being to the effect that there was enough space between the ditch and the paved portion of the highway for him to pull out there on the dirt. However, the question as to whether it was practical for him to have done so is more or less academic, in the light of his reason for stopping. If the humanitarian urge to aid some one in apparent distress was strong enough in the defendant, he could have taken the chance of injury to himself, or damage to his car, and have driven off on the shoulder regardless of its condition. He chose rather to stop suddenly, when it was dark and raining, without indicating by hand signal or otherwise, his intention so to stop, and by so doing take the chance of injuring anyone driving behind him. This was not the case of it being anyone in general, who might be properly upon that road, for the two cars left Litch-field together and Graskill knew that the other car was close behind him.

There was no evidence that there was anything mechanically wrong with his car, or that there was any obstruction on the highway. Our courts have held that the only excuse for stopping on the pavement is an emergency or exigency which leaves no other choice. Hand v. Greathouse, 294 Ill. App. 383, 13 N. E. (2d) 1010; Frochter v. Arenholz, 242 Ill. App. 93; Sugru v. Highland Park Yellow Cab Co., 251 Ill App. 99; Craw ford v. Cabalan, 259 Ill. App. 14; McLaren v. Byrd, Inc., 296 Ill. App. 345, 15 N. E. (2d) 993; Mayhak v. Edward J. Meyers Co., 306 Ill. App. 284, 28 N. E. (2d) 343. (Abst).

In the case of Crawford v. Cabalan, supra, the driver of an automobile stopped on the paved portion of the highway, near a car which had skidded into the ditch, and there the court said: “Sec. 145f of the Revised Statutes, Cahill’s St, ch. 121,¶ 161 (2), prohibits any driver of a motor vehicle from stopping it on any durable hard surfaced State highway and from allowing it to stand in such a position that there is not ample room for two vehicles to pass upon the road. It has been held that this inhibition does not apply where the exigencies of the situation compel a car to stop on the pavement. (Frochter v. Arenholz, 242 Ill. App. 93; Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99.) The exigencies which will excuse a person from leaving a car on the public highway in violation of the statute are those which give no choice to the driver about leaving his car in that position. Instances of such exigencies are an accidental break in machinery,' a failure in the mechanism or parts peculiar to the car, a sudden blocking of the highway, etc. In this case no such exigency was present. Plaintiff’s driver stopped his car in the lane assigned to other cars going in his direction. ’ ’

Complaint is made that the court erred in refusing to give instructions 1, 2 and 3 requested by the defendant which read as follows:

1.
“The Court instructs the jury that if you find and believe from the evidence that at the time of the collision in question the defendant, Gfaskill, had stopped his automobile upon the paved part of the highway, still, if the jury further find and believe from the evidence that defendant, Gfaskill, did so, preparatory to driving his automobile to the shoulder of the highway and that from all the facts, surroundings and conditions as shown by the evidence it was not practical for the said G-askill to drive upon the shoulder of the highway without first stopping his automobile upon the pavement, if you so find he did, then the defendant, G-askill, was not negligent in stopping his automobile at said time on said paved part of the highway.”
‘ 2.
“The Court further instructs the jury that even though you may believe from the evidence that at the time of the collision in question, the defendant G-askill had stopped his automobile upon the paved part of the highway, still, if the jury further believe from all the facts, conditions and surroundings as shown by the evidence it was not practical for the said Gaskill at said time to have stopped his automobile off such part of the highway, then the defendant was not negligent in stopping his automobile at said time on said paved part of the highway.”
3.
“The Court instructs the jury that if you believe from the evidence that both before and at the time of the occurrences complained of in this case the defendant G-askill, having regard to the traffic and the use of the highway in the nighttime, as shown by the evidence, operated and managed his automobile along and upon the highway and at and about the place of the collision in a way and in a manner that a reasonably prudent person would have operated and managed said automobile at such time and place, under all the facts, conditions and surroundings as shown by the evidence; and if you further believe from all the facts, conditions and surroundings as shown by the evidence, that before the time of the collision it was not practical for the defendant G-askill to have driven his automobile off the paved part of the highway, then yon should find the defendants not guilty, regardless of any other question in the case.” These instructions were properly refused by the court, because they were all predicated upon the proposition that defendant would be held not to be negligent in stopping on the paved highway, if it was not practical for him to drive off of said highway, and there was no evidence in support of that theory. These instructions fail to take into consideration whether defendants had any right whatever to stop on the pavement, and are based upon the premise that they had an absolute right to stop, which is contrary to the fact.

It is next contended by defendants that the plaintiff was guilty of such contributory negligence as to bar her right to recovery. She was not the driver of the car that collided with defendant’s car. The negligence of the. driver of an automobile will not be imputed to plaintiff if she was not in any way the cause of such negligence and omitted no ordinary care for her own safety and this is true even though the driver of the car is her husband. Thompson v. Atchison, T. & S. F. Ry. Co., 258 Ill. App. 123. Without going into detail, with reference to this proposition, it appears to the court from the evidence that there was nothing that she could have done to have prevented the collision. Whether or not she was guilty of contributory negligence was a question of fact for the jury. Lauer v. Elgin, J. & E. Ry Co., 303 Ill. App. 200, 27 N. E. (2d) 315; Thompson v. Riemer, 283 Ill. Anp. 371; Carroll v. Krause, 295 Ill. App. 552, 15 N. E. (2d) 323; Pagenkamp v. Devilles, 80 F. (2d) 485; Thomas v. Buchanan, 357 Ill. 270, 192 N. E. 215; Layton v. Ogonoski (Fourth District), 256 Ill. App. 461; St. Clair Nat. Bank of Belleville v. Monaghan (Fourth District), 256 Ill. App. 471; Rutowicz v. United Motor Coach Co., 261 Ill. App. 377; Wever v. Staggs, 264 Ill. App. 556; Starr v. Rossin, 302 Ill. App. 325, 23 N. E. (2d) 740; Habenstreit v. City of Belleville, 302 Ill. App. 383, 23 N. E. (2d) 808; Thompson v. Atchison, T. & S. F. Ry. Co., 258 Ill. App. 123. By their verdict the jury found that she was not guilty of such negligence, as contributed to her injury.

It is claimed by defendants that the damages awarded plaintiff are excessive. She sustained injuries to her back, her ankle, and her knee, from which she was still suffering at the time of the trial. She still suffers from female disorders and abnormal bleeding caused by the shock of the collision. She was confined to her bed for 5 weeks and was on crutches for 3 months. It was necessary for her to employ someone to do her housework for her during her disability. Unless the verdict is of such magnitude as to show passion and prejudice on the part of the jury the Appellate Court has no right to disturb it, as the amount to be fixed is largely in the discretion of the jury. Grannon v. Donk Bros. Coal & Coke Co., 173 Ill. App. 395, aff’d 259 Ill. 350, 102 N. E. 769. The fact that there was a remittitur of $2,500 did not establish the fact that the verdict was the result of passion and prejudice. The practice of filing a remittitur is well established in this State and such a remittitur is not to be taken as a concession that the jury was actuated by passion or prejudice. Stumer v. Pitchman, 22 Ill. App. 399, aff’d 124 Ill. 250, 15 N. E. 757. We do not believe that the amount of the judgment is excessive. There being no reversible error in the record, the .judgment will be affirmed.

Affirmed. ■


author: Mr. Justice Culbertson

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    Anthony Mousette, Appellee, v. Monarch Life Insurance Company, Appellant.

      Opinion filed March 1, 1941.
    Pope & Driemeyer, of East St. Louis, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a final decree of the city court of the city of East St. Louis, Illinois, entered March 13, 1940, against the defendant appellant, Monarch Life Insurance Company (hereinafter called the defendant), in the sum of $2,217.26, and costs for the principal, with interest, on a policy of life insurance upon the life of Peter A. Mousette. The suit was transferred from the law to the equity side of the court, in accordance with the provisions of section 44 of the Civil Practice Act.

The complaint was filed on November 17, 1939, by the plaintiff appellee, Anthony Mousette (hereinafter called the plaintiff), alleging that more than two and a half years prior thereto, namely: On April 13, 1937, his son Peter had died, and that a policy of insurance issued by the defendant was then in force upon his life. The complaint states that the policy was dated March 3, 1937, and provided for the payment of $1,000 upon the death of Peter, plus an additional $1,000 should death be caused by accidental means. Plaintiff asserted that only $50 had been paid under the policy and that $1,950 remained due, and asked judgment for that sum, plus interest at 5 per cent.

The answer of the defendant denied the existence of the policy; denied liability; and affirmatively alleged: (1) The release of the plaintiff’s claim; and (2) That Peter, the alleged insured, was of unsound health at the time the policy was delivered and the first premium thereon paid, contrary to a condition of the policy that no liability would exist thereunder “unless and until the policy be delivered, and the first premium thereon paid, during the lifetime and sound health of the applicant.” The provision of the policy and the release were set out in full.

The plaintiff filed a reply and an additional reply denying that the assured was of unsound health at the time of delivery of the policy and payment of the initial premium, and asserting that even if he were, this fact was known to defendant at that time, and that defendant was estopped to make that defense; and further set up in said reply the charge of fraud in the execution and procurement of the releases, .and asked that they be set aside and declared of no effect.

The facts in this case, in the main, are not in dispute. The evidence disclosed that Peter Mousette, the insured, who was referred to in the evidence as “Tony,” was 23 years of age; that he lived at home with his father, the plaintiff in this case, and was employed at a manufacturing plant near Bast St. Louis. The evidence further disclosed that on February 24, 1937, H. H. Hoffman, an agent of the defendant, operating out of its Bast St. Louis office, employed by the defendant to take applications for insurance, collect premiums therefor, mail such applications to the defendant, and receive and deliver the policies issued pursuant thereto, took Tony’s application for the policy of insurance here involved. The defendant, a Massachusetts corporation, issued the policy, but it was not delivered to the insured until April 8, 1937.

On April 2,1937, Tony was involved in an automobile accident, as a result of which he received a cut about 3 inches long between the wrist and the elbow of his left arm. He was taken to Christian Welfare Hospital where the wound was sutured and his arm bandaged. The next day he consulted Doctor T. Van Boyd, who found that the arm was so badly swollen that he cut the stitches to permit a draining of the wound. The doctor bandaged the arm from the elbow to the hand, and Tony visited the doctor’s office on the 5th, 7th, 9th, and 10th of April for treatment. The evidence disclosed there was redness about the wound and the swelling persisted, and pus continued to drain from the wound. This, the doctor testified, was evidence that the arm was infected. The doctor testified, however, that he did not think' the patient’s condition was serious and so advised him, and was of the opinion that Tony could return to his work in a short time. On April 8, Tony went to the place of his employment to obtain his pay check, and shortly after he had returned home, at about 1:30 in the afternoon, the defendant’s agent, Hoffman, and a Mr. Wes sell came to the home. The evidence disclosed that Mr. Hoffman, seeing Tony’s bandaged arm, at once inquired as to the cause thereof and he was told about the automobile accident, the visit to the hospital, and the treatment there, and that Tony was receiving daily treatments from Doctor Boyd. Tony told Mr. Hoffman that the doctor did not consider the injury as serious and had expressed the hope that he would soon be able to resume his employment. It appears from the evidence that the accident, injury, and the treatment thereof, were extensively discussed for approximately 20 minutes. Mr. Hoffman finally told Tony that he had a policy of insurance for him, and was advised by Tony that he had not as yet cashed his pay check, but would do so immediately. Tony then put his right arm into his coat sleeve, and threw the coat over his left shoulder because of the bandage on that arm, and accompanied by Mr. Hoffman and Mr. Wessell he went to a neighborhood grocery store, in Mr. Hoffman’s automobile, where the pay check was cashed. They then returned to the Mousette home where Mr. Hoffman delivered the policy to Tony and received the premium. The policy bears date of March 3, 1937, and the premium paid at the time of the delivery was for insurance coverage for a period of 3 months, beginning at the date of the policy.

The evidence further shows that on April 9, Doctor Boyd put a drain in the wound on Tony’s arm, and on the next day Tony’s condition became worse and a Doctor Molden was called into the case. Tony was removed to the hospital and his arm amputated. The amputation and a blood transfusion were futile, and on April 13 Tony died as a result of a pyogenic infection caused by the accident.

The plaintiff testified that he was 51 years of age at the time of the trial, and had been employed as a laborer since he was 16 years of age, and that his education was confined to a few years attendance at a country school, and that he had had no previous experience with insurance policies or insurance company adjusters. Plaintiff further testified that shortly after Tony’s death, he took the policy in question to the defendant’s East St. Louis office and made claim thereon, and within a few days a Mr. E. E. Post, defendant’s adjuster, came to the Mousette home. The evidence disclosed Mr. Post to be a university graduate, who had 9 years’ experience in investigating and adjusting claims for insurance companies.

Mr. Post inquired of plaintiff concerning the accident and plaintiff told him that he was not in the car at the time and had no personal knowledge thereof. Mr. Post then took a complete written statement of facts concerning the accident and the circumstances relative to the delivery of the policy, from Tony’s sister who was present when the policy was delivered. He visited the store where the pay check had been cashed and was apprised of all the facts relative thereto. He called upon Doctor Boyd and inquired of Trim as to the injury and treatment, and took a statement from Mr. Hoffman. He testified that Mr. Hoffman did not tell him that at the time the policy was delivered that Tony had made any representation that he was in good health. It appears that after Mr. Post conferred with officials of the defendant Company, he returned to plaintiff’s home on the evening of May 11, and at that time had with him a prepared release, and that he talked to plaintiff and his son-in-law Albin Sauerbrunn. The evidence disclosed that Mr. Post told the plaintiff that he was sorry but that he had “bad news” for him, and that, namely, the policy was no good because Tony had had an accident before the policy was delivered and the Company did not know about it. The evidence discloses that Mr. Mousette said at the time, “It is awfully funny they didn’t know anything about it— the agent gave us the policy.” Mr. Post said that even if that was true, the company was not responsible for what its agent did, and that after the matter had been discussed at some length, Mr. Post said that because of plaintiff’s bad luck in the recent death of his wife and son, the Company, to show its appreciation, would give him $50 or $75, and that plaintiff said, in reply thereto, “If the policy is no good, I will keep it,” but Mr. Post assured him that while it was of no value and would be of no use to him, the Company desired the policy for its records. Mr. Post told plaintiff that the $50 was a gift, and the plaintiff testified that he considered it as such.

It appears that the releases in question were not read or discussed at plaintiff’s home, and that plaintiff’s sight was bad, and he had no glasses to enable him to read, and, at plaintiff’s suggestion, he, Mr. Post, and Mr. Sauerbrunn, went to see Mr. Button, a friend of the plaintiff, and that upon arrival there Mr. Post explained that the policy was void because the Company did not know of Tony’s injury at the time it was delivered, and he pointed out the provision in the application that he claimed contained the language invalidating the policy. The type used in that clause was so small that Mr. Button testified he had to use a magnifying glass to read it. Mr. Post further stated that the policy was of no value because Tony had met with an accident before it was delivered, and that the Company had no knowledge thereof, but that the Company was willing to pay plaintiff $50 and return the premium. This representation was made after statements had been taken from plaintiff’s daughter, Mr. Hoffman, and Doctor Boyd. Mr. Post and Mr. Button testified that the releases were read aloud at Mr. Button’s home, but the plaintiff and Mr. Sauer hr unn testified that they were neither read nor discussed, and plaintiff further testified that he did not at any time read or hear the releases read. After some discussion the parties went to a nearby notary public. Plaintiff testified that he was bewildered and that the recent death of his wife and son had so effected him that he lost interest in things and that it seemed that he was constantly beset with trouble. He further testified that he asked Mr. Post to give him a few days so that he might ask advice on the matter, but Mr. Post told him that in that event he would withdraw his offer and that plaintiff would get nothing.

Mr. Post and Mr. Button further testified that the releases were discussed and reread at the notary’s home; and the notary testified that the releases were read, but not discussed; and the plaintiff and his son-in-law testified that they were neither read nor discussed. The releases, which appear in evidence as plaintiff’s exhibits 3, 4, and 5> were signed by plaintiff and witnessed by the parties present, and Mr. Post handed the plaintiff a check for $57.17. The plaintiff testified that he accepted the payment as a gift, in accordance with Mr. Post’s representations, and that he thought he had merely executed a receipt.

The court found that the policy was binding on the defendant, and that the defendant was estopped from asserting the contrary; that the releases were not a bar to plaintiff’s suit; that they were the product of defendant’s false and fraudulent misrepresentations and conduct; that the defendant did not discharge its fixed obligation to the plaintiff of $2,000 by the payment of $50. The defendant was given credit for such payment and was ordered to pay plaintiff the balance, and interest thereon. This appeal follows.

It is very earnestly urged by the defendant herein that it should prevail in this case for the reason that the policy in question contained a provision that, “No liability shall exist unless and until the policy hereby applied for shall be delivered and the first premium paid, during the lifetime and sound health of the applicant. ’ ’ This is a valid contention and constitutes a good defense to an action predicated on the policy where the facts warrant (Union Bank of Chicago v. Metropolitan Life Ins. Co., 266 Ill. App. 345).

We find ourselves entirely in harmony with the law announced in the above-cited case, but we believe that that is not such a rule as but may be departed from in the proper case. An examination of the evidence in this case persuades us that the defendant’s agent, Hoffman, had authority to take applications for insurance, and to take this application in question; and that he had authority to and did cause the application in question to be delivered to the defendant herein; and that he did have a right to and did receive and deliver the policy issued pursuant to such application; and that he collected the premium therefor; and that he was a general agent of the defendant herein and his knowledge of the injury in question was the knowledge of the defendant Company (John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284; Nieman v. Security Benefit Ass’n, 350 Ill. 308).

We believe, and so hold that, there was a further liability on the defendant Company that if any length of time intervened between the date of the application and the delivery of the policy in question, that it was incumbent upon the defendant Company to make inquiry when the policy was delivered as to the condition of the health of the assured, and that if it failed so to do and made delivery of the policy in question that, that delivery is conclusive against the defendant as to the completion of the contract (Hungate v. New York Life Ins. Co., 267 Ill. App. 257; Crawford v. Abraham Lincoln Life Ins. Co., 278 Ill. App. 576).

And we further find that the evidence in this case fairly proves that the defendant Company, through its agent, with knowledge of assured’s prior injury, delivered the policy and accepted the premium, and we hold that it cannot be heard to say that the policy is not a binding contract (Beddow v. Hicks, 303 Ill. App. 247).

There was a full and complete disclosure made by the assured of every fact within his knowledge concerning his injury and the treatment thereof, and in full possession of that knowledge the defendant Company expressed its desire to enter into the contract of insurance, and delivered its policy. We cannot believe that the law will now permit the defendant Company to escape the liability it contracted to assume (Froehler v. North American Life Ins. Co. of Chicago, 374 Ill. 17).

The defendant herein, after full and complete knowledge had been given to its agent by the assured, and after the Company’s agent had stood in the presence of the assured, where it was plainly visible to everyone that the assured had an injury of some kind, character, or description, made delivery of the policy and collected the premium therefor, and we must conclude that the liability of the defendant herein on said policy is absolute, unless the contention advanced by the defendant herein that the release secured by another agent of the defendant herein, operates as a bar to plaintiff’s suit. We now direct our attention to a consideration of that release.

It seems to us from a fair consideration of the facts and circumstances in evidence in connection with the procuring of said releases, that said facts and circumstances were such that a court of equity could, with perfect propriety, withhold giving approval thereto, and we do not feel that any further recital of the evidence than has already been set forth earlier in this opinion, is necessary to fully and completely sustain the action of the trial court in withholding approval of said releases.

This case was tried before the court, without a jury, and as a court of review, we will not substitute our findings of fact for the findings of fact of the trial court, unless the judgment is clearly against the manifest weight of the evidence (Chamblin v. New York Life Ins. Co., 292 Ill. App. 532); and as a reviewing court, we will accept the findings of the chancellor upon questions of fact, based upon the statements of witnesses whom he saw and heard testify, unless such findings are clearly and palpably erroneous (Kinnah v. Kinnah, 184 Ill. 284).

We find that the judgment of the court is not against the manifest weight of the evidence, and that his findings are not clearly and palpably erroneous, but that such findings of fact are in harmony with the weight of the evidence, and not in any way erroneous.

The judgment of the trial court, being correct, is hereby affirmed.

Judgment affirmed.


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    Carolyn Shipley Jones, Appellee, v. Ed Keilbach, Appellant.

      Opinion filed March 1, 1941.
    Kramer, Campbell, Costello & Weichert, of East St. Louis, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court..

This is an appeal from a judgment in the sum of $1,000 against appellant, Ed Keilbaeh (hereinafter called defendant), a tavern proprietor, in favor of appellee, Carolyn Shipley Jones (hereinafter called plaintiff).

The action was instituted under the provisions of the Dram Shop Act (Ill. Rev. Stat. 1939, ch. 43, sec. 135 [Jones Ill. Stats. Ann. 68.042]). On trial of the case in the court below the jury, returned a verdict of $1,000, upon which the judgment was entered.

This case was previously before this court on an appeal from an order of the trial court allowing plaintiff’s motion for a new trial when the case was first tried in the city court (Jones v. Keilbach, 295 Ill. App. 598). In that case we concluded that the order granting the new trial was proper. The judgment now appealed from was the result of such retrial.

As we have previously indicated, the evidence in this case shows that the deceased, Joe Shipley, who was 25 years of age, had gone to defendant’s tavern in East St. Louis at about 9 p.m. on the evening of September 5, 1936, and that he was last seen there about 2:30 a.m. the following morning, during all of which time he was seen to consume a considerable quantity of intoxicating drinks, particularly beer. While there is some conflict in the evidence as to whether or not he was intoxicated, some of the testimony for plaintiff was definitely to such effect. His activities and whereabouts between the time he was last seen in the tavern at about 2:30 a.m., until 4:20 of the same morning, are not shown by the record. At about 4:20 a.m., two police officers, in response to a call from unknown outsiders, found the deceased lying helpless in a vacant lot adjacent to the sidewalk about 2% blocks from the tavern. The street or sidewalk level at such point alongside the vacant lot was about 8 or 9 feet higher than the level of the vacant lot. A board fence about 3% feet higher than the sidewalk, supported by posts and the adjacent building, served as a pedestrian’s guard rail. The top rail was down directly above where deceased was lying and the nails in the railing were bent upward and were bright and shiny. Deceased was alive when found by the police officers, but was paralyzed. He died the same day he received the injury and death was shown to have resulted from a fracture of his fifth cervical vertebra. Additional evidence presented on part of the plaintiff on the retrial consisted of the testimony of the police officers to the effect that the deceased told them that he did not know if he had fallen or if someone had pushed him, and that he had been drinking beer.

Defendant, on appeal to this court, assigns a number of errors as ground for reversal, but such contentions fall into substantially two categories: (First) That the plaintiff has failed to establish a right to recover under the facts under the Dram Shop Act; and (Secondly) That the court erred in the giving of certain instructions on behalf of plaintiff, and in the refusal to give certain instructions on behalf of defendant.

As we have indicated previously in Jones v. Keil-bach, supra, it was our conclusion under the evidence that plaintiff was entitled to have her case submitted to a jury. The additional evidence of the police officers, referred to in this opinion, operated to strengthen plaintiff’s case. As was stated in the previous opinion dealing with the facts involved herein, if the injury to the deceased was directly attributable to his intoxicated condition and no other agency intervened, sufficient of itself to stand as the cause of the injury, then the intoxicated condition could be considered the proximate cause of the injury; or, if he received the injury while intoxicated through the agency of an outside force which could not or would not have reasonably been brought into action except by reason of the intoxicated condition, then in such case the intoxication would be a contributing factor and would be within the provision of the- statute. As we have stated before, there would have been no liability if the intervening cause had broken the causal connection between the intoxication and the injury, even though there had been a sale of alcoholic liquors which caused an intoxication. Under the facts as presented in the record in this cause, however, it was the province of the jury to determine whether or not the plaintiff in the action was entitled to recover. The evidence introduced on behalf of plaintiff sufficiently established plaintiff’s case so that submission to the jury was required. It was not indispensable that evidence of eyewitnesses be presented, or that direct testimony of the manner in which the deceased fell from the sidewalk be shown, in view of the apparent unavailability of such evidence.

We have considered all of the objections of the defendant to instructions which were given on behalf of plaintiff and as to two instructions which were refused upon being tendered by defendant, and have concluded that there was no reversible error in the giving or refusal of such instructions. We believe, however, that this case furnishes an appropriate opportunity to restate a ruling which has long been established in our Appellate Courts, and which should be adhered to by litigants in the presentation of objections with reference to instructions in this court. As was stated by the court in Cory v. Woodmen Accident Co., 253 Ill. App. 20, at page 35, “Complaint is also made that there was error in the giving of some of the instructions for the appellee, and in modifying some of the instructions given for the appellant, but the instructions are not set out in the brief and argument, but merely referred to by designated numbers. The questions involved are therefore not properly before us for consideration.” (General Platers Supply Co. v. Charles F. L’Hommedieu & Sons Co., 228 Ill. App. 201; Sterling-Midland Coal Co. v. Beady & Callaghan Coal Co., 236 Ill. App. 403.) In the instant case none of the instructions as to which objections are raised by appellant are set forth in the brief and argument, but all of such instructions are simply referred to by number. This court will not, therefore, give detailed consideration to such objections in this opinion.

There being no reversible error in the trial of this cause the judgment of the city court of the city of East St. Louis appealed from, is, accordingly, affirmed.

Judgment affirmed.


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    Arthur Foeller for use of Town of Shiloh Valley, Appellant, v. Laclede Griffin, Appellee.

      Opinion filed March 1, 1941.
    Rehearing denied April 3, 1941.
    John E. Sprague and James 0. Miller, both of Belleville, for appellant.
    Johnson & Johnson, of Belleville, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of St. Clair county, which resulted from a finding of such court of not guilty on the trial of the case, before the court, without a jury.

The action was originally instituted by appellant Arthur Foeller (hereinafter called plaintiff), before a justice of the peace, and was tried in the circuit court on an appeal thereto by the appellee Laclede Griffin (hereinafter called defendant). A complaint was made that such defendant was obstructing a public highway and that the obstruction consisted of a gate placed across the alleged public road. The defendant is a tenant on the farm upon which the roadway is located. In 1939 he erected a gate across the roadway and placed a sign on the gate reading, “private road; keep gate closed.” The issue before the court, on trial, was whether or not the road in question was a public road. It was an issue of fact which the court determined in favor of the defendant.

Both plaintiff and defendant produced a number of witnesses who testified concerning the road. The testimony was conflicting. The testimony on behalf of the defendant, however, was to the effect that there was no public user of the driveway, and a very limited use in reaching farms in the neighborhood.

As indicated by the Supreme Court of this State, in the case of Stengl v. Starr Bros., 370 Ill. 118, the courts of this State have frequently held that to establish a public highway by prescription there must be a user by the public for the statutory period, and such user must be adverse, under claim of rig'ht, continuous and uninterrupted, with knowledge of the owner of the estate, and yet without his consent. The burden of proof of the existence of such facts rests upon the party asserting the right by prescription (Bontz v. Stear, 285 Ill. 599).

The finding of a trial court is entitled, on review, to the same weight as the verdict of a jury, and if the evidence is conflicting, such finding will not be reversed on appeal unless it is contrary to the manifest weight of the evidence (Keefer Coal Co. v. United Elec. Coal Cos., 291 Ill. App. 477; People v. Chicago & E. I. Ry. Co., 258 Ill. App. 535). The only question in such case is whether the finding's of fact made by the court below are clearly and palpably against the weight of the evidence (Van Amburg v. Reynolds, 372 Ill. 317). A reversal is not justified unless such is the case.

In the instant case, where the evidence was conflicting in many respects, and in view of the facts and circumstances testified to by witnesses for the defendant, we cannot say that the findings of the trial court are contrary to the manifest weight of the evidence.

"While neither appellant nor appellee raised the question, but simply hint at some doubt as to whether or not they are in the proper court, we deem it advisable to review briefly the status of the decisions with reference to the jurisdiction of the Appellate and Supreme Courts of this State in a case such as is here" before this court. In Stengl v. Starr Bros., supra, the Supreme Court of this State has stated that, a freehold is involved where, as in that case, the issue is whether there is or is not a highway over the land in controversy. That case originated through a com- . plaint filed in the circuit court. If the action in the instant case had originated in the circuit court, we would conclude that this court had no jurisdiction, and we would have transferred the present case to the Supreme Court.

The line of distinction on the question of jurisdiction of the Appellate and Supreme Courts in the road obstruction cases, is indicated in the case of Village of Dolton v. Dolton, 201 Ill. 155, in which the Supreme Court stated, at page 163, “In a number of cases coming directly to this court, which originated before a justice of the peace, ... we have decided and passed upon questions of freehold alleged to be involved in such cases, hut the attention of the court was not drawn specifically to the fact that such' cases originated before a justice of the peace, and that the appeal should have been to the Appellate Court, and the question of his lack of jurisdiction to determine questions of freehold was not raised by the parties nor considered by the court. ’ ’

The basis of jurisdiction in such cases seems to he predicated entirely on the principle that the court to which the cause is appealed has no wider latitude of jurisdiction than the court in which the case was instituted. A justice of the peace clearly has no jurisdiction to adjudicate the question of a freehold. An action which is originally instituted before the justice, presumably does not involve a freehold and the appeal should be to the Appellate, and not to the Supreme Court (Town of Audubon v. Hand, 223 Ill. 367; Cold Spring Tp. Highway Com’rs v. Bruner, 248 Ill. 545; Lange v. Busse, 275 Ill. 198).

We must, therefore, conclude that we have power to review the instant case, which originated in the court of a justice of the peace.

There being no reversible error in the record, the judgment of the circuit court of St. Clair county is, therefore, affirmed.

Judgment affirmed.


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    People of the State of Illinois ex rel. Bradford National Bank of Greenville, Appellant, v. School Directors of District No. 62, County of Franklin, State of Illinois, Appellee.

      Opinion filed March 1, 1941.
    Meyer & Meyer, of Greenville, and Frank E. Tro-baugh, of West Frankfort, for appellant; S. E. Brondos, of West Frankfort, of counsel.
    Roy C. Martin, of Benton, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Franklin county, Illinois, denying the petition for mandamus filed on behalf of the Bradford National Bank of Greenville.

Petitioner filed its petition for writ of mandamus based on a judgment obtained on December 14, 1936, in the sum of $1,207.37, in the circuit court of Franklin county, against the respondent, School Directors of District No. 62, Franklin county, Illinois.

The defendant, a municipal corporation, in answer • to the petition, set up as its only defense that there were, at the time the petition was filed, outstanding “mandamus judgments” in the circuit court of Franklin county, Illinois, on judgments against the respondent, payable over a period of years, in the aggregate sum of $22,500, and setting forth that respondent had not paid the judgment obtained by the petitioner (which was made the basis of this proceeding in the circuit court) for the reason that 50 per cent of its revenue was being used for operating expenses of the school district, and the other 50 per cent was being prorated among those creditors who had already taken action by mandamus, and in which proceedings, orders directing payment had been entered.

A motion for judgment in favor of petitioner on the pleadings, on the ground that the answer set up no valid defense to the petition, was overruled by the court. A reply was then filed denying the allegations of the answer.

At the trial of the cause it was stipulated that the school district was being operated on 50 per cent of its annual income, and that the remaining 50 per cent of the annual income was being used by the school district in paying on judgments which had previously been rendered against the school district, and upon which “mandamus judgments” had previously been entered by consent of the same circuit court. The circuit court, in such proceedings, to prevent interference with the operation of the school district, had directed payment of such judgments over a period of years. Following a hearing in the instant ease, the court below denied the petition for mandamus and dismissed the petition at petitioner’s cost. Petitioner appeals to this court, contending that the trial court erred in not granting the prayer of the petition, and in not entering judgment in such mandamus proceeding in favor of petitioner.

It is not denied by respondent that mandamus is the proper remedy to enforce the payment of a judgment entered against a school district, but respondent contends that the court below properly exercised its discretion in denying the writ of mandamus in view of the facts in the instant case. It is pointed out by respondent that while petitioner’s judgment was obtained in December of 1936, the petition for writ of mandamus was not filed until November, 1939. Respondent also directs the attention of the court to the fact that respondent will be required to apply all of its anticipated revenue from taxes, and from all other sources, obtained during each year from the present year to and including the year, 1947, on what it terms its existing “mandamus indebtedness,” and that the granting of the prayer of the petition in this action would conflict with many other mandamus orders heretofore entered by the circuit court of Franklin county against the respondent. The contention is, in brief, that the entry of previous mandamus orders directing payment in instalments over a period of years (to other judgment creditors who had taken action, while the petitioner in the instant case had not), now precludes the granting of a writ of mandamus to petitioner in this cause, and deprives petitioner of the opportunity to participate in the distribution of the revenues of the school district until the year, 1948, when it is anticipated the instalment payments on the mandamus orders referred to will have been completed.

While mandamus was a common-law writ, courts have exercised equitable principles in determining whether or not the writ should issue and the manner of its application. It has long been recognized that courts have some measure of discretion in awarding mandamus in requiring levies of taxes, and that the writ should not be so employed as to impose an unnecessarily oppressive burden at one time. Illustrative of the application of equitable principles to the problem has been the fact that the direction of payments in successive levies over a number of years has been sanctioned (City of Cleveland v. United States, 166 Fed. 677).

The courts of this State have previously stated that the discretion of the court in granting or refusing a writ of mandamus is exercised with a view to all existing facts and with due regard to the consequences which may result (Kenneally v. Chicago, 220 Ill. 485; People v. Board of Review of Cook County, 351 Ill. 301).

The discretion of the court in such case may not, however, be exercised arbitrarily in refusing the writ where a plaintiff shows a clear legal right to its issuance (People v. Western Cold Storage Co., 287 Ill. 612; Illinois Cent. R. Co. v. People, 143 Ill. 434; People ex rel. Blome v. Nudelman, 373 Ill. 220).

Courts inquire in such cases whether the writ will operate impartially, create confusion and disorder, and whether it will or will not promote substantial justice (People v. Olsen, 215 Ill. 620; Kenneally v. Chicago, supra).

Where there is no right of priority in favor of one creditor over the other (as is apparently true in the instant case), the line of distinction adopted by the courts in determining whether a diligent creditor who endeavors to collect his claim before others, should be entitled to a full recovery before the remaining’ creditors may participate, is based on whether or not the fund out of which payment is to be made will be sufficient to pay in full all creditors among whom there is no priority. The basic distinction seems to be that where the fund out of which the obligations of the public body are to be paid, is collected under an inexhaustible power of taxation, payment in full of one creditor, though it may exhaust the fund, does not effect a preferance in favor of such creditor to the prejudice of unpaid creditors (Snower v. Hope Drainage Dist., 2 F. Supp. 931; cf. Rothschild v. Village of Calumet Park, 350 Ill. 330; State ex rel. Gillespie v. Carlton, 103 Fla. 810, 138 So. 612) since, under the inexhaustible power of taxation the fund can be replenished until there is sufficient to pay all creditors in full. The courts have apparently taken the view that there would be no reason for denying a full recovery to the diligent creditor before the other creditors were paid, for the reason that the maxim “equality is equity” is to be considered in connection with the maxim “equity aids the vigilant.” Such distinction appears to be sound and if the only issue in the instant case were whether or not a direction in a certain mandamus order to pay 50 per cent of the revenues of the school district for the year in which the application was made was under attack, we would conclude that the petition of the creditor to participate in the distribution of such fund (if such creditor had failed to take action as promptly as the originally petitioning creditor) would justify the court, in its discretion, in denying the petition for mandamus filed by the judgment creditor who had delayed until after the previous order had been entered.

The extension of the operation of the mandamus orders under equitable'principles, as set forth in the case of City of Cleveland v. United States, supra, so that the direction to the school district operates as to levies to be made in future years, has created a somewhat different problem which (in the circumstances present in the instant case) has apparently not been considered before in the courts. It should be recognized that a direction to pay over a period of many years, which will effectively tie up all of the future funds of the school district, may, under some circumstances, amount to a virtual denial of all rights to a judgment creditor who has failed to take prompt action. Such result would not be in accord with the equitable principles which are and should be exercised by the court in directing payment of mandamus orders over a period of years.

The rights of the judgment creditors which have been referred to in the instant case, arose by virtue of the entry of judgments. The obligations of the school district were then fixed. The institution of a mandamus action was simply the means provided for the enforcement of such rights and obligations. Such mandamus order, where it operates “in futuro” as in the instant case, through the direction of instalment payments, should always be subject to modification. The orders created no perpetual or vested rights. Courts of equity have always retained power to modify the terms of injunctions and other orders which at the time of entry were intended to be permanent or' perpetual, when circumstances and the situation of the parties make it just and equitable to do so (Vulcan Detinning Co. v. St. Clair, 315 Ill. 40; Ladner v. Siegel, 298 Pa. 487, 148 Atl. 699, 68 A. L. R. 1172), and this is so even though the decree is final as it relates to appeal. In the instant case the nature of the mandamus orders contemplates the levy and collection of taxes in future years. All that petitioner in the instant action requests is that it be entitled to participate on a prorata basis with other judgment creditors ' in the 50 per cent of the revenues of the school district authorized to be distributed by the circuit court. It is only a logical application of the court’s equitable powers to require that, if a seasonable application for a writ is made which is to apply to taxes to be levied and collected in the future and where no priority exists between judgment creditors, that such judgment creditor so applying should be permitted to participate equitably and on a prorata basis with other judgment creditors who have previously taken action by mandamus and as to whom orders for payment in instal-ments have been rendered.

It is contended by petitioner that it be accorded a more substantial amount during the succeeding years so that it may quickly reach an equality of distribution with other so-called “mandamus creditors.” We are of the opinion that such an acceleration of payments should not be sanctioned for the reason that the petitioner failed to take action during previous years. That was a matter which was within the control of the petitioner and the court should not now permit petitioner to obtain a temporary advantage even though the result would be to equalize proportionately the payments obtained by various judgment creditors. If we were to authorize such payments, then a judgment creditor could, by inaction during years of poor revenues, require that the substantial portion of the revenues of a municipal corporation during a year of good revenues be almost entirely allocated to such petitioner. We believe that it would be an adequate exercise of the court’s discretion to require the respondent school district in the instant case, to pay a prorata portion of the revenues to petitioner for the years following the application of petitioner.

What we say herein, however, is subject to a very important proviso. The so-called mandamus creditors who have a legal interest which will be collaterally determined by a judgment which would be rendered pursuant to the prayer of the petition, should be made parties defendant. As the Supreme Court of this State has said in the case of Powell v. People ex rel. Hedrick, 214 Ill. 475, jurisdiction in a mandamus suit should be acquired over all parties who have a right to be heard before judgment is pronounced in this case. It is the duty of this court, on its own motion, to decline to proceed to a determination of the cause in absence of such parties who are directly and materially interested in the litigation. Jurisdiction should, therefore, be acquired on reversal and remandment of this cause, of all such parties, and the petition should be appropriately amended to specify the interests of such defendants.

This cause will, therefore, be reversed and remanded with directions to the lower court (in the event petitioner properly makes defendants the mandamus creditors shown by the record to have an interest in the order which would be entered in this cause) to proceed in accordance with the views which are expressed in this opinion and, if the facts disclosed in such prbceed-ing are of the character heretofore shown and outlined in this opinion, to work out a basis of distribution of the revenues of the respondent school district which will, as to future levies of taxes, give to petitioner in this cause equality of treatment with other judgment creditors to whom payments have previously been directed to be made.

This cause will, therefore, be reversed and remanded to the circuit court of Franklin county, with directions to proceed in accordance with the views as herein expressed.

Reversed and remanded with directions.