author: Mr. Justice Matchett

text:
    Ruth Will (Mueller), Appellee, v. 1527-31 Wicker Park Avenue Building Corporation et al., Defendants. Elm Park Hotel Company, Appellant.
    Gen. No. 43,056.

      Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Hinshaw & Culbertson, of Chicago, for appellant; Oswell G. Treadway, of Chicago, of counsel.
    Hy Smoller and Marion J. Hannigan, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by defendant Elm Park Hotel Company from a judgment in the sum of $17,500 entered upon the verdict of a jury after defendants’ motions for a new trial and for judgment notwithstanding the verdict had been denied. The suit was for personal injuries. The defendants were the 1527-31 Wicker Park Avenue Building Corporation, the Elm Park Hotel Company and the American Fork & Hoe Company.

The suit grew out of an occurrence which took place on May 5,1941. Suit was begun October 7,1941. The gist of the complaint was that plaintiff was at that time in a coffee shop, comprising a portion of the hotel premises, as an invited guest of Elm Park Hotel corporation and that, it through its agents and servants, was in the act of repairing the floor in and about the premises (the servant using a hatchet manufactured and sold by the defendant American Fork So Hoe Company) when a portion of the hatchet chipped off, striking plaintiff and causing serious and permanent injury. The negligence of the defendant hotel company was alleged to be in the improper use of the hatchet and particularly in doing the repair work in a negligent way, in that it failed to properly guard the place in which the work was done; that it carelessly and negligently failed to provide sufficient safeguards for persons rightfully on the premises. As to the defendant American Fork & Hoe Company the charge was that it negligently manufactured the hatchet and sold it negligently in the course of its business to be used by the public; that it carelessly and negligently failed to properly inspect or test the hatchet or properly temper the steel while manufacturing it, and" carelessly and negligently allowed and permitted the hatchet to be sold in a dangerous and defective condition; that while the plaintiff was upon the premises, as a result ofl this negligence she was struck by a piece of steel.

The Wicker Park corporation answered it did not own the building or the hotel, and it and the hotel company denied plaintiff was a resident guest in the hotel at the time of the alleged occurrence but averred that she was in the course of her employment in a portion of the premises leased to her employer, Julia Orszulak; that she was not in the exercise of due care; that the defendants were not negligent. For a special defense they averred the accident and occurrence narrated in the complaint arose out of and in the course of the employment of the plaintiff by Julia Orszulak, who at that time was working under and bound by the Workmen’s Compensation Act of the State of Illinois; that the defendants were also working under and bound by the terms of the Workmen’s Compensation Act, and that by virtue of section 29 of that Act, all rights, if any, in the plaintiff on account of the occurrence were subrogated to her employer, and that plaintiff therefore had no right of action against the defendants.

At the close of the evidence the cause was dismissed as to the defendant Building company and was submitted to the jury as to the American Fork & Hoe Company and the Elm Park Hotel Company. There was a verdict for defendant American Fork & Hoe Company and a verdict of guilty against the hotel company with damages assessed at $25,000. Judgment was entered on the verdict in favor of the American Fork & Hoe Company. There was a motion of the hotel company for a new trial and for judgment notwithstanding the verdict. These were overruled upon plaintiff remitting $7,500, and judgment was entered in favor of plaintiff against that defendant for $17,500. From that judgment this appeal is taken.

The first contention is that plaintiff and defendant were at the time of the injury subject to the .terms and provisions of the Workmen’s Compensation Act, and that the only remedy of plaintiff is for compensation under it rather than in an action at law for damages. Ill. Rev. Stat. 1943, ch. 48, pars. 143, 166, §§ 6, 29 [Jones Ill. Stats. Ann. 143.21, 143.44].

The hotel building was four stories high and contained about 115 rooms. It was on the north side of Wicker Park avenue and faced south. The avenue extended southeast and northwest. In the southeast corner of the building on the first floor was a restaurant operated by Julia Orszulak. It was about 24 feet wide and 27 feet long. Back of this was a washroom and to the rear of that a kitchen, separated by swinging doors. A lunch counter ran along the west side of the lunchroom, its north end extending to within 24 inches of the washroom wall. The space provided a passageway to and from behind the counter. Four small tables for the use of patrons stood along the east wall. Back of these was a larger service table.

Plaintiff resided in the hotel. She was employed by Miss Orszulak, who owned and operated the restaurant. Her compensation was $8 per week, including meals and tips such as she might receive. The floor of the kitchen had become out of repair and the hotel company, lessor of Miss Orszulak’s restaurant, undertook the repair. Its maintenance man, Mr. Starlin, was directed to do this work. He undertook to do so on Monday, May 5, 1941. Starlin says he went to the restaurant at about 8:30 or 9:30 o ’clock of the morning of that day and Miss Orszulak was ready for him to start. A little later he returned with his tools and began work in the kitchen, which he soon finished, then began work on the floor back of the counter at the north end of the room. At that time he saw the plaintiff sitting at the service table, drinking a cup of coffee and smoking a cigarette. She was seated about 12 or 15 feet from where he was to work. He intended to take up a part of the floor, about 12 inches wide and 4 feet long. As he worked, Miss Orszulak and Mrs. Starlin, the wife of the worker, stood by watching the work and engaging in conversation. The manner of doing the work was by placing the sharp edge of a hatchet on the floor and striking the hatchet with a hammer. When the hammer hit the hatchet a spark flew up. Plaintiff felt a pain in the instep of her right foot, near the ankle joint, and noticed blood coming from the wound. Mercurochrome was applied. She went to her room, later saw a doctor, had an X-ray made of the injury and was afterwards taken to the hospital, where a chip of steel was removed from the wound. The incision healed without evidence of infection, although other trouble developed later. A few days afterwards plaintiff felt a numbness on the outside of her right heel and a pink spot appeared on it. This spot did not yield to treatment and gradually grew worse.

Dr. Smith examined plaintiff May 14, 1941, and on May 23 she was sent to the Walther Memorial Hospital where she was under his care until June 3 of that year. The condition of the heel was diagnosed' by Dr. Smith as a skin infection, ringworm dermatitis. She left the hospital and returned to her own physician for further treatment. He called a dermatologist. Several different types of treatment were administered without bringing relief. The area became a large open sore about 4 inches long and 2 inches wide. In August she went to the Cook County Hospital. Her limb became swollen from the ankle to the thigh. She remained there until October 1, 1942. A cast was placed on her limb and was removed some two weeks later. At the time of the trial she had a large open ulcer on the side of her injured foot.

The' above facts are practically uncontroverted. The controlling question, as it appears to this court, is whether the remedy of plaintiff is by action at law or under the Compensation Act. We have concluded that it is under the statute by which the action at law is precluded.

To avoid that result plaintiff undertook to show that she was not working at the time she was injured and that her injury did not arise out of and in the course of her employment. The evidence in our opinion does not sustain this contention. TJnquestynably she was employed by Miss Orszulak to work in the restaurant. Her wages were $8 per week with meals provided for her, and she was allowed to retain tips given to her by patrons. On; the morning of the day she was injured she went to the restaurant at about 6:30 and opened up the place for business. She served breakfast to the patrons. Her employer arrived later, went to the kitchen to work while plaintiff waited on the trade, typed the menu and got things ready for the day. On the trial plaintiff said she was taking a cup of coffee and smoking a cigarette when she was injured. When her deposition was taken prior to the trial she said she was “eating” at the time of the occurrence. By the terms of her employment she had the right to eat her meals on the employer’s premises. This was a part of her compensation. The evidence indicates that was what she was doing. When one works under such a contract and under such circumstances is injured there is a wealth of authority holding that the employee is in the course of his employment and that where the injury comes about by reason of the business in which the claimant is employed it arises therefrom within the' meaning of the Compensation Act. Humphrey v. Industrial Commission, 285 Ill. 372; H. W. Nelson R. Const. Co. v. Industrial Commission, 286 Ill. 632; Rainford v. Chicago City Ry. Co., 289 Ill. 427; Mt. Olive & Staunton Coal Co. v. Industrial Commission, 355 Ill. 222.

Plaintiff testified and gave other evidence tending to show she typed a sign “Closed for repairs” and placed it on the front door of the restaurant before she went to her room, prior to the occurrence. The time when she-went to her room is quite uncertain from her testimony. When cross-examined she said that she went to her room at about 10 o’clock and stayed there about 20 minutes. She afterwards thought it was nearer 12 o’clock when she went to her room. She also fixed the time when Starlin got into the restaurant at about 11:30. Starlin also says the restaurant was closed; that he saw a small piece of paper on the front door hut did not see what was on it, in this respect contradicting the testimony given in his deposition before the case came on for trial. Miss Orszulak gave similar testimony, but it appeared she stated at other times that the restaurant was closed after plaintiff’s injury. It has, however, been held in similar cases that whether the place of business is temporarily closed is immaterial. Humphrey v. Industrial Commission, 285 Ill. 372.

It was also contended by plaintiff on the trial that she was not paid for her work on the day she was injured. In view of the fact she opened the restaurant in the morning of that day and served customers and did other necessary work, it is clear if she did not collect her employer owes her wages. The rights of an employee under the Compensation Act cannot be destroyed by the employer failing to pay for work done.

Plaintiff attempted to show that the Act was not applicable because she was not actually working at the time or had supposedly finished her work for the day. The proof does not show that she had completed her duties or even that she was not on duty at the time she was injured. Her hours were irregular and it does not appear there was any definite time when she was off work during the day. Her testimony is that she usually left at noon, but if her employer was busy at that time she would go at 1:00 o’clock or 2 o’clock, or even stay until 5:00 o’clock. Even then she went down to see if her employer was busy. We agree with the statement of the attorney for defendant. “The most that can be said from her proof is that at the time of the occurrence she was not actually at work, but was seated at a table having a cup of coffee.” It is well-settled law that in order to be subject to the provisions of the Workmen’s Compensation Act it is not necessary the employee shall be actually at work at the time of his injury. In Wabash Ry. Co. v. Industrial Commission, 360 Ill. 92, the Supreme Court said:

“If an employee is injured at a place where he reasonably may be while he is engaged, in doing something-incidental to his employment, the injury occurs in the course of his employment, even though he may not be actually at work.”

To the same effect are Indian Hill Club v. Industrial Commission, 309 Ill. 271; Crane Co. v. Industrial Commission, 306 Ill. 56; Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53; Porter v. Industrial Commission, 352 Ill. 392; Pressed Steel Car Co. v. Industrial Commission, 340 Ill. 68; Ervin v. Industrial Commission, 364 Ill. 56; Steel Sales Corp. v. Industrial Commission, 293 Ill. 435; J. E. Porter Co. v. Industrial Commission, 301 Ill. 76. It must therefore be held plaintiff did not sustain the allegation of her complaint that she was in the restaurant at the time of her injury “as an invited guest,” but on the contrary that she was working under and bound by the terms of the Workmen’s Compensation Act and that her injury arose in the course of her employment. This is the provision of the statute. Ill. Rev. Stat. 1943, ch. 48, pars. 143,166 [Jones Ill. Stats. Ann. 143.21,143.44], and the result of cases construing the same: Thornton v. Herman, 380 Ill. 341, 344; O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 255; Wilson Garment Mfg. Co., Inc. v. Edmonds, 312 Ill. App. 317, 322; Craig v. Boudouris, 241 Ill. App. 392, 396.

Plaintiff says at any rate there was an issue of fact for the jury on this point; that the jury found in her favor and the trial judge approved the verdict in this respect. Here, the facts are not in dispute and their legal effect becomes a matter of law. Kensington Steel Corp. v. Industrial Commission, 385 Ill. 504, 509.

The trial judge, at the time of overruling the motion for a new trial, gave a written opinion giving reasons and citing authorities which, he claimed, held that even if plaintiff’s injury was sustained in the course of her employment it was not a hazard of the employment. The trial judge cited Klug v. Industrial Commission, 381 Ill. 608; Sure Pure Ice Co. v. Industrial Commission, 320 Ill. 332; W. A. Jones Foundry & Machine Co. v. Industrial Commission, 312 Ill. 27. It would unduly extend this opinion to distinguish these and others from the instant case.

In Gross v. Cuneo Press, Inc., 251 Ill. App. 560, plaintiff volunteered to perform an act not incidental to her employment. In Rehula v. Bessert, 322 Ill. App. 146, it was held plaintiff did not release a common-law right of action by making an application for compensation for the same injury. In Kensington Steel Corp. v. Industrial Commission, 385 Ill. 504, 509, it was held the claimant could not recover for an injury received while repairing a machine it was not any part of his duties to repair. In Olson Drilling Co. v. Industrial Commission, 386 Ill. 402, 410, an employee, who, after completing his day’s work, was driving the auto of his son home, delivering reports to the employer’s office, colliding with another auto driven by a different person was injured, and held to be entitled to recover compensation. In Mazursky v. Industrial Commission, 364 Ill. 445, an employee was injured while repairing one of his own tires in his employer’s garage and was held not entitled to recover. The right to repair the tire was not any part of the employee’s compensation. In Boorde v. Industrial Commission, 310 Ill. 62, an employee, during the rest period, left the employer’s premises, entered the elevator, ran it up to the fifth floor, seated herself on a window and fell down the elevator shaft. It was held thé she could not recover. In Weis Paper Mill Co. v. Industrial Commission, 293 Ill. 284, an employee, during the rest period, laid down on the railroad tracks in the shade of a boxcar, went to sleep and while sleeping the car was moved and cut off his legs. It was held he could not recover. In the Weis case the Supreme Court said:

“It is not the rule that all accidents which happen during the leisure period of an employee in attendance on personal comforts or necessities are held not to arise out of the employment, for if an accident happens at such time there would be no break in the employment even though the employee is paid for the time he is actually at work, especially when the accident occurs on the employer’s premises or about his property, unless the workman is doing something wholly foreign to his employment. Acts of ministration to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, the performance of which while at work are reasonably necessary to his health and comfort, are incidental to his employment.”

The burden of proof on this issue was on the plaintiff. Stevens v. Illinois Cent. R. Co., 306 Ill. 370. She did not in our opinion sustain it by competent evidence. We hold that the motion for a directed verdict should have been granted. Our conclusion on this point is controlling, and for that reason the judgment in favor of plaintiff will be reversed without remanding.

Reversed.

Niemeyer, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Justice Matohett

license: Public Domain

text:
    Bessie Fine, Appellee, v. Henry Unschuld, Appellant.
    Gen. No. 43,104.

      Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Milton K. Joseph, of Chicago, for appellant.
    Samuel G. Rautbord, of Chicago, for appellee; Irwin S. Baskes, of Chicago, of counsel.
   Mr. Justice Matohett

delivered the opinion of the court.

The defendant appeals from a judgment in the sum of $2,500, entered on the verdict of a jury. Plaintiff’s action was begun April 30, 1942, by filing a statement of claim of fourteen paragraphs, unverified. The substance of the averments made was that defendant had cheated and defrauded plaintiff through misrepresentations upon which she relied, by which $2,500 was wrongfully obtained from her. The statement says defendant falsely alleged that he owned the Paquette Mine situated at Shullsburg, Wisconsin; that he had full knowledge of the operation of the mining project; that he expected tremendous profits to be made from it; that he wished to permit plaintiff to participate in these profits, and if she would invest $2,500 therein he would have a corporation organized and cause to be issued to her 2500 shares of stock of the par value of $2,500; that these representations were false and untrue ; that she, relying on the same, on April 17, 1940, at defendant’s request paid to the Denver Equipment Company $1,000 to be applied in payment of a previous purchase of mining equipment to be used in the operation of the mine; that on May 1, 1940, at defendant’s request she turned over to him her check for $1,500, payable to him, as trustee; that defendant cashed the check and used the proceeds for his own personal use without regard to her rights; that on May 4, 1940, he organized a corporation known as the Universal Mining and Milling Corporation and delivered to plaintiff a certificate for 25 shares of stock therein; that this corporation was a sham and without title to the mining property.

Paragraph 9 of the statement says: ‘ ‘ That the defendant, Henry Unsehuld, falsely and fraudulently and for the purpose of deceiving and cheating the plaintiff, represented to the plaintiff that he was the owner of said mine, whereas, in fact, he was not, either at the time of his agreement with the plaintiff, nor at any other time whatsoever, the owner of said Paquette Mine; that the defendant, Henry Unsehuld, knew full well, at the time he entered into the agreement with the plaintiff wherein she advanced to the defendant for and on behalf of said proposed mine, that he was not the owner of said mine and that he fraudulently and falsely misrepresented the facts to the plaintiff, in order to induce said plaintiff to advance the money to him for the purpose of carrying on and conducting his fraudulent and dishonest schemes.”

The 12th paragraph alleges: “That the defendant, Henry Unsehuld, wilfully and maliciously and with the intent and purpose of cheating, deceiving and defrauding the plaintiff herein, made the statements, allegations and representations as hereinabove set forth, and the plaintiff, relying on said statements and representations thereby was defrauded by the defendant of the sum of $2500.00.”

The 14th paragraph avers: “That the defendant, Henry Unsehuld, deceitfully, wrongfully and fraudulently and by reason of his cunning, scheming and artifice, wrongfully deprived the plaintiff of the sum of $2500.00, to the damage of said plaintiff in said sum of $2500.00, with interest thereon at the rate of 5% per annum from April 17,1940 on the sum of $1,000.00, and from May 1, 1940, on the sum of $1500.00.”

The defendant answered denying all fraud and each paragraph.

The cause was tried by a jury. At the close of the evidence the trial judge, at the request of plaintiff, submitted to the jury this special interrogatory: “Was the defendant, Henry Hnschuld, guilty of wilful, malicious and fraudulent conduct in this case and was malice the gist of the action?” The jury answered, “Yes.” The jury also returned a verdict that defendant was “guilty as charged in statement of claim” and assessed plaintiff’s damages at $2,500.

On motion of plaintiff the verdict and judgment was amended to read as follows:

“Jury returns verdict and verdict read in open Court. Verdict was that defendant, Henry Hnschuld, was guilty of willful, malicious and fraudulent conduct as charged in Statement of Claim. The Jury also reported that in answer to the interrogatory, ‘Was malice the gist of the action? Answer — Yes.’ Judgment on finding and verdict defendant Henry Hnschuld guilty as charged in Statement of Claim, and assessed damages in sum of $2500.00 in tort. Judgment on verdict against defendant, Henry Hnschuld, for $2500.00 and costs and finding especially that malice was the gist of the action, and it is further ordered that body execution issue against the defendant, Henry Hnschuld.”

There were motions for a new trial and in arrest of judgment, both of which were denied. From that judgment the defendant brings this appeal.

It is contended for reversal that the municipal court of Chicago was wholly without jurisdiction to hear the cause; that the verdict and judgment are against the greater weight of the evidence; that in the municipal court of Chicago a judgment directing a body execution issue must be supported by an allegation in the statement of claim that malice is the gist of the action and that a body execution is sought, of which the record here is barren; that the answer of the jurors to the special interrogatory was not signed by them; that evidence received over defendant’s objection was inadmissible, and that the jury was improperly instructed as to the law applicable. It will be necessary to discuss only the first point.

The statement of claim, which we have set forth, and the judgment entered show that this action was essentially one for fraud and deceit, in which damages of $2,500 were claimed.

Section 2 of the Municipal Court Act, which defines the jurisdiction of that court in first class cases, is as follows:

Sec. 2. That said municipal court shall have jurisdiction in the following cases:

“First. Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all actions on contracts, express or implied, whether implied in law or implied in fact, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000); (b) all actions for the recovery of personal property and all proceedings for the trial of the right of property when the value of the property sought to be recovered or the right to which is disputed, as claimed by the plaintiff, exceeds one thousand dollars ($1,000).”

This section of the statute was construed by the Supreme Court in the case of Malina v. Oplatka, 304 Ill. 381, and the Supreme Court said:

“There is no express or implied power given to the Municipal Court to try actions in tort . . . where the damages claimed exceed $1000.00, and it is a well settled rule that where the court does not have jurisdiction of the subject matter of a lawsuit the same cannot be conferred upon it by agreement or action of the parties. . . . The form of action is to be determined by the pleadings. In this case as we have seen, the praecipe was for a summons in trespass on the case. In the statement of claim defendant in error sets out damages to his real estate and the building thereon. At the trial of the case counsel for plaintiffs in error requested the attorney for defendant in error to state whether or not the action was in contract or trespass. Counsel for the defendant in error replied that the action was trespass on the case. The decision of the Court was that there was no contractual obligation on the part of the plaintiffs in error that had been violated and that if there was any liability such must be based on some violation or disregard of some duty which defendants owed the plaintiff or upon some negligence or carelessness on the part of the defendants.
“Counsel for-the defendant in error contends, and cites numerous authorities in support of the argument, that the particular injuries in this case are such as might be sued for either in contract or in tort. Conceding that this be true but not deciding the question, defendant in error sued in tort, and having elected to pursue his remedy in a court that had no jurisdiction of the subject matter he is not aided by the fact that he might have started some other cause of action. The affidavit of claim states a cause of áction in tort. The case was tried and the judgment was entered on the theory that the matters involved were ex delicto. . . . We are of the opinion that the municipal court had no jurisdiction of the subject matter and that its judgment was therefore void.”

It is quite true that this objection was not made by defendant in the trial court, but the law is that notwithstanding the objection that the court is without jurisdiction of the subject matter may be raised at any time and in any court. Roby v. South Park Commissioners, 215 Ill. 200; Rice v. Bogart, 272 Ill. App. 292; People v. Industrial Savings Bank, 275 Ill. 139. The plaintiff, however, says that this cause of action arose out of an agreement between the parties and that it, therefore, comes within the provision of section 2. In support of her contention plaintiff cites Arnold v. Dodson, 193 Ill. App. 62, affirmed in 272 Ill. 377; Chudnovski v. Eckels, 232 Ill. 312, and Thomason v. Chicago Motor Coach Co., 284 Ill. App. 593. The cases cited do not sustain the proposition. In Arnold v. Dodson the plaintiff purchased corporate stock from the defendant and paid him for the same $3,150. Suit was begun on the theory that she was induced to make the purchase by false representations of defendant. She sued to recover the money she had paid and the court held, as the opinion states, that a person thus defrauded might “rescind the contract, return the consideration, waive the tort and sue in assumpsit.” This the plaintiff there did; this the plaintiff here did not. The distinction is vital and controlling. The Chudnovski and Thomason cases are also unlike this case in that both were suits by passengers against a public carrier for breach of contract arising out of personal injuries, and the suit was based upon the implied contract of the carrier to carry the passenger safely. It was alleged that it negligently failed to do so and that as a result of its negligence the plaintiffs were injured.

We hold the court was wholly without jurisdiction of the subject matter, and for that reason the judgment will be reversed without discussing the facts in detail, since possibly plaintiff may wish to secure redress in a court which" has jurisdiction to give her a remedy. For the reason stated the judgment will be reversed.

Reversed.

Niemeyer, P. J., and O’Connor, J., concur.


author: Mr. Justice Matchett Niemeyer, P. J.

text:
    Emmett A. Bentley, Appellee, v. Camp H. Olson, Appellant.
    Gen. No. 43,128.
    Opinion filed December 11, 1944.
    Released for publication December 27, 1944.

      Hinshaw & Culbertson, of Chicago, for appellant; Oswell G. Treadway, of Chicago, of counsel.
    H. H. Patterson, of Chicago, for appellee; Edmund C. Maurer, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Defendant seeks to reverse á judgment for $7,500, entered on the verdict of a jury in an action for personal injuries. At the close of all the evidence defendant moved for an instructed verdict in his favor, which was denied. When the verdict was returned defendant did not move for a new trial but made a motion for judgment notwithstanding the verdict, which was denied and judgment entered, from which he appeals.

The action grew out of a collision between the Plym- • outh automobile of plaintiff, driven by him, and a delivery truck of defendant, driven by defendant’s employee. The collision occurred at the intersection of Fairview and Granville avenues in Park Eidge in Cook county on Saturday, August 29, 1942, at about 6:00 p. m. The only questions presented are whether the trial court erred in failing to hold as a matter of law plaintiff was guilty of contributory negligence or defendant free from negligence proximately causing the accident.

Negligence and contributory negligence are generally questions of fact for the jury and become questions of law only when the evidence considered most favorable to the party against. whom the ruling is sought and when all reasonable inferences therefrom are such that reasonable minds will agree that .the injury was the result of plaintiff’s own negligence or that the defendant was not negligent. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112, 117; Petro v. Hines, 299 Ill. 236, 240; Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312, 322, 323; Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 199.

The evidence here tends to show that Fairview avenue is a public highway extending north and south; that Granville avenue is a public highway extending east and west, and that these streets intersect at right angles. The day of the accident was clear, the pavement of the streets in good condition, and the visibility good, there being no obstructions to vision — no buildings near the intersection.

Plaintiff was driving his Plymouth automobile north on the east side of Fairview avenue at a speed of about 15 miles per hour. His thirteen-year-old daughter and his wife sat with him in the front seat, he on the left side, Mrs. Bentley on the right side and the daughter between them. When plaintiff was about 30 feet south of the south curb of Granville he looked east and saw defendant’s truck coming west on the north side of Granville, about 200 or 250 feet east of Fairview. Pie next saw the truck when it was about 100 or 150 feet from the east curb of Fairview. He was then almost to the south curb of Granville. He looked west and saw no traffic coming from that direction. The roadway of each street was 24 feet wide. Plaintiff’s brakes were in good condition. He could have stopped his auto in 2 or 3 feet. He stepped on the accelerator, increasing his speed about 20 miles an hour and went across the intersection. When the front of his car was at the center of the north crosswalk of Granville, the rear of it was right along the north curb of the same street, about a foot or two south of the north curb. At that time the truck coming from the east hit the rear fender of the automobile. The automobile went up in the air, swinging, then turned over on its left side. Plaintiff says he was across the street before the collision occurred.

Mrs. Bentley testified that she saw the truck when their automobile was south of Granville, about two car lengths, and she saw it again just, before it struck; that the Plymouth was almost acrosp Granville at that time. Plaintiff says the last time he looked at the truck it was running straight west about two feet from the north curb of Granville. He did not blow a horn at any time.

The driver of the truck was Novak, a boy sixteen years of age, who had been driving it about three days. At the time of the trial he was absent in military service. The truck was a Chevrolet panel, used to deliver groceries. An affidavit of Mr. Kinderman was received as to what Novak would testify to if present. It was to the effect that he was driving at a speed of 20 miles an hour as he approached the intersection. In many other matters it contradicted plaintiff’s testimony.

The uncontradi'cted evidence shows that there were no signal lights or traffic control of any kind on either street and there were no buildings on or near any corner of the intersection.

The defendant argues the proof does not disclose any negligence on the part of his driver. We are agreed the jury might reasonably find him negligent. With plaintiff’s automobile in plain view, he drove right into it, when a slight deviation by him of a few inches would have prevented the collision. The jury found bim negligent. The trial court approved. We also approve.

An automobile or truck is a dangerous instrumentality and a street intersection is an unusually dangerous place in which to drive. The law requires from both parties care commensurate with the danger. With the evident purpose of making travel in these places as safe as possible the legislature has enacted a statute (Ill. Rev. Stat. 1943, ch. 95½, par. 165 [Jones Ill. Stats. Ann. 85.197]) which provides that except as therein stated:

“ . . . Motor vehicles travelling upon public highways shall give the right of way to vehicles approaching along intersecting highways from the right, and shall have the right of way over those approaching from the left.”

Defendant contends that under the facts his vehicle had the right of way under this statute, and this, as we view it, is the crucial question in this case. This court has interpreted the statute in a number of cases.

In Partridge v. Eberstein, 225 Ill. App. 209, we were asked to define when a vehicle was approaching an intersection within the meaning of this statute. We said:

“It would be very difficult, if not impossible, to lay down a rule in precise terms of measurement applicable to all cases. However, we suggest this: That a vehicle is approaching an intersection from the right, within the meaning of the statute, and entitled to the right of way when, on its left, on an intersecting street, another vehicle is approaching whose driver, in the exercise of due care would or should see that unless he yielded the right of way the vehicles might or would collide. ’ ’

In Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89, the court reversed a judgment entered upon a verdict directed in favor of the defendant. It there appeared plaintiff’s driver was going east at about 8 miles an hour. As he approached the intersection he saw the defendant’s truck approaching from the south on an intersecting street about 150 feet from the intersection. The opinion states that the trial court had evidently relied on McCarthy v. Fadin, 236 Ill. App. 300, and that both the McCarthy and Partridge cases had relied upon the case of Brillinger v. Ozias, 186 N. Y. App. Div. 221, where a similar statute was construed, but stated that a more recent decision of the court of appeals of that state in Ward v. Clark, 232 N. Y. 195, had given a preferable construction of the law. In that case plaintiff drove east, defendant north, on two intersecting streets. When about 75 feet from the point of collision plaintiff saw defendant’s car which was then distant from that point about 150 feet. He cut off his power for an instant, reduced speed and measured with his eye the rapidity of the approach. The cars seemed to be going at about the same speed. Plaintiff looked again 40 feet from the point of collision and defendant was 80 feet away. The street that had to be crossed was only 30 feet wide. He pressed forward, thinking he had ample time, looking at the samé moment in the other direction to assure safety there. As in this case, plaintiff almost made the crossing when the rear of his car was struck by the bumper of defendant’s car. The jury returned a verdict for plaintiff, which was reversed by the Appellate Division and the complaint dismissed on the ground of contributory negligence. Cardozo, J., in an opinion of. the court of appeals reversing the Appellate Court and affirming the trial court, said:

“We think the case was for the jury. With the plaintiff’s car forty feet away, and the defendant’s eighty, there appeared to be sufficient clearance. So, at least, a reasonable man might not unreasonably believe. Sudden acceleration of the defendant’s speed was not to be foreseen. Even with added speed, the defendant, if he had looked, could have avoided collision by a trifling bend to the left upon an unobstructed street. The plaintiff in shaping his own course might act on the assumption that common skill and prudence would shape the defendant’s also. He was not required to foresee the defendant’s blind and uncompromising adherence to an undeviating line. The supreme rule of the road is the rule of mutual forbearance.”

After pointing out that defendant relied on the statute the court of appeals said:

“The privilege thus .conferred is not inflexible and absolute. A right of way, like a burden of proof, will establish precedence when rights might otherwise be balanced. It helps us little when without it the balance would be unequal. A right of way might turn the scales if, when the plaintiff started to cross, the cars had been equidistant, or nearly so, from the point of collision, due regard being had also for the speed of their approach. Even with the distances what they were, it was an element which the triers of the facts were to consider in their estimate of conduct. That, in the circumstances of this case, is, we think, the extent of its significance. The plaintiff was not to wait until there was no other car in sight. Such a rule would be unworkable in crowded cities. He was to wait until it was reasonably safe to start. Whether he started when there was danger, was a question for the jury.”

In Schoenbacher v. Kadetsky, 290 Ill. App. 28, plaintiffs’ car was being driven north on Vincennes avenue in the City of Chicago, defendant’s east on 42nd street. There was a collision at the intersection, with damage to the Schoenbacher car. There was a trial of the issues and a verdict of the jury for Schoenbacher, with judgment for plaintiff. It was argued on appeal that the court erred in instructing the jury that if they found plaintiffs’ vehicle approached the intersection from the right before the defendant’s approached it, and defendant failed or refused to give the right of way and this was the cause of the accident, the verdict should be for the plaintiff. Our opinion affirming the judgment said: think this is a correct statement of the law. Salmon v. Wilson, 227 Ill. App. 286; Heidler Co. v. Wilson & Bennett, 243 Ill. App. 89; Ward v. Clark, 232 N. Y. 195; Fitts v. Marquis, 127 Me. 75, 140 Atl. 909.”

“Defendant’s contention is that this instruction-■ is wrong because the statute gives the party approaching from the right in such a situation the right of way over the person approaching from the left only when they reach the intersection at about the same time. We

In Lawson v. Jorjorian, 293 Ill. App. 431, plaintiff was driving west on Greenwood avenue, running east and west, intersecting 16th street, which ran north and south. The evidence showed that the cars were moving at about the same rate of speed and practically equidistant from the points of collision. We held the plaintiff guilty of contributory negligence, as a matter of law, and that she could not recover.

In Krawitz v. Levinstein, 320 Ill. App. 618, there was a collision between plaintiff’s automobile and defendant’s truck at an intersection. The automobile was going west on 58th street and the truck south in Albany avenue, which intersected it. There was a verdict of not guilty by a jury and plaintiffs appealed. An instruction was given in the language of the statute and the jury told that it was the duty of “Joseph Krawitz to yield the right of way to said truck operated by said Cleveland Cook.” We reversed and remanded the judgment, saying:

“This instruction was wrong for the reason that it failed to tell the jury that they must also take into consideration the distance the vehicles were from the point of collision and the speed of their approach. Heidler Co. v. Wilson & Bennett Co., 243 Ill. App. 89.”

The opinion says:

“In that case, in an opinion written by Mr. Justice Thomson, we reviewed the authorities on this right-of-way statute and pointed out that the true construction of such a statute was laid down in Ward v. Clark, 232 N. Y. 195, in an opinion by Judge Cardozo. Other cases holding to the same effect are Rupp v. Keebler, 175 Ill. App. 619; Salmon v. Wilson, 227 Ill. App. 286; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326; Schwartz v. Lindquist, 251 Ill. App. 320: Coleman v. Hait, 293 Ill. App. 615; Edwards v. Hill-Thomas Lime & Cement Co., 309 Ill. App. 168.”

In Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21, the Kraivitz case is cited by the Third Division of this court with approval, and the judgment there was reversed because of an instruction laying down a different rule.

Serletic v. Jeromell, 324 Ill. App. 233, is to the same effect.

Courts of many other jurisdictions, construing similar right of way statutes, have held likewise. A few of these cases are Print v. Amato, 131 Ore. 631, 284 Pac. 183; McCartney v. Westbrook, 132 Ore. 488, 286 Pac. 525; Gendron v. Glidden, 84 N. H. 162, 148 Atl. 461; New York Telephone Co. v. Beckers, 30 F. 2d (C. C. A.) 578. Each of these cases cites several authorities, all approving the rule as above stated in Ward v. Clark, 232 N. Y. 195. In conformity with these cases we hold the question of whether plaintiff was guilty of contributory negligence, barring recovery, was for the jury.

The judgment will be affirmed.

Affirmed.

O’Connor, J., concurs.

Niemeyer, P. J.

dissents: Plaintiff’s contributory negligence is determined by his' knowledge express or implied of the situation confronting him when he was required to act or refrain from acting. 38 Am. Juris. Negligence, § 184. He testified that when about 25 or 30 feet south of Granville avenue he saw defendant’s truck approaching from the east, about 200 to 250 feet from the intersection; that when the front of his automobile had almost reached the south curb of Granville he saw the truck 100 to 150 feet to the east; he did not see the truck again until after the collision; there was nothing to obstruct his view. Although he says that he did not estimate the speed of the truck, it was evident that in the interim between his first and second view of the truck it had traveled more than three times the distance he had gone. There was no indication that its speed would be reduced. As Granville avenue was 24 feet wide and plaintiff’s car 16 feet long, plaintiff would be obliged to travel about 40 feet before his car would clear the intersection — a greater distance than he had traversed between his first and second look at the truck. Unless the truck was stopped or its speed reduced a collision was reasonably certain, if not inevitable, if plaintiff proceeded across Granville. In this situation plaintiff stepped on the accelerator and, closing his eyes, if not his mind, to the lessening distance of the truck contesting the right of way, plunged ahead across the intersection. This, in my opinion, is contributory negligence as a matter of law. This question is independent of defendant’s negligence. Russell v. Richardson, 308 Ill. App. 11. I concur in the holding that defendant’s negligence was a question for the jury.

The right of way at the intersection is not controlling. If we assume that plaintiff had the right of way, he was, nevertheless, obliged to exercise due care (Thomas v. Buchanan, 357 Ill. 270, 277.) Conceding the general rule that one has the right to assume that others will obey the law, and that plaintiff under normal circumstances would have the right to assume the driver of the truck would stop or have his car under control so as to avoid a collision, yet, as said in Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154,159: ‘ ‘ The presumption does not absolve one from exercising such care and prudence as a reasonably prudent person would under the same circumstances, . . . One who has an unobstructed view of an approaching train would not be justified in closing his eyes and crossing a railroad track in reliance upon the presumption that a bell would be rung or a whistle sounded. No one can assume that there will not be violations of the law or negligence of others and offer the presumption as an excuse of fáilure to exercise care.” Any presumption that defendant would obey the law vanished entirely when evidence contrary to the presumption was presented. Coal Creek Drainage & Levee Dist. v. Sanitary Dist. of Chicago, 336 Ill. 11. Here plaintiff was put on notice that the driver of the truck might not or could not control it and respect plaintiff’s claim to the right of way. From the two views which plaintiff had of the truck he knew that it had approached to within 100 or 150 feet of the intersection at a speed more than three times the speed of his car, without any diminution of speed or indication of the driver’s awareness of plaintiff’s presence. Only a few more turns of the wheels of this fast-moving truck and the most alert and energetic action of the driver might be unavailing in avoiding a collision. There was no longer any presumption that the truck would yield the right of way. Plaintiff was then in a position of safety, where he could stop his car within a few feet, and could not lawfully insist on the right of precedence across the intersection. Thrapp v. Meyers, 114 Neb. 689; Hooper v. Corliss, 146 Wash. 50, 54; Russell v. Richardson, 308 Ill. App. 11, where the court stresses the lack of evidence that deceased saw the street car slacken its speed, and held that he was guilty of contributory negligence as a matter of law in walking across a street without looking after he left the curb. Plaintiff is not helped by defendant’s evidence which is to the effect that the truck was traveling at all times at a speed less than plaintiff’s testimony indicates and that it was nearer the intersection than plaintiff claims when he saw the truck the last time before the collision. The uncontradicted evidence shows that after seeing the approaching truck, plaintiff attempted to beat it across the intersection, and did not look again toward the truck. The driver of an automobile cannot exercise less care for his safety than a pedestrian. This court has recently held that a pedestrian, entering an intersection and having the right of way, must as a matter of law look for approaching automobiles after leaving the curb. Good v. Behrendt, 321 Ill. App. 303 (abst.); Moran v. Gatz, 324 Ill. App. 45. Like holdings as to drivers of automobiles are found in Kirchoff v. Van Scoy, 301 Ill. App. 366, and Walker v. Illinois Commercial Telephone Co., 315 Ill. App. 553.


author: ■ Mr. Justice O’Cohnob

text:
    Wallace Edmonds Conkling, as Bishop of Protestant Episcopal Church in Diocese of Chicago, Appellant, v. Arthur T. McIntosh, Appellee.
    Gen. No. 43,094.
    Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Mason & Mason, of Chicago, for appellant; George A. Mason, of Chicago, of counsel.

      Bluford, Krinsley, Schultz & Voorheis, of Chicago, for appellee; Victor Hedberg, of Chicago, of counsel.
   ■ Mr. Justice O’Cohnob

delivered the opinion of the court.

April 30, 1943, plaintiff filed his complaint in chancery against Arthur T. McIntosh and other parties to foreclose the lien of a trust deed dated May 1, 1928, on certain real estate in Chicago made and executed by the Chicago Title & Trust Company, as trustee and not personally, under a trust agreement dated February 27, 1926, and known as trust No. 16289, conveying the premises to the State Bank of Chicago, a corporation. The trust deed was executed to secure the payment of a $30,000 note dated May, 1928, due 5 years after date, made by the Chicago Title & Trust Company, “as trustee as aforesaid and not personally.” The note recites that it is executed pursuant to trust No. 16289 and “is payable only out of the property” described in the trust deed. “No personal liability shall be asserted or be enforcible against the promissor or any person interested beneficially or otherwise in said property . . . the sole remedy of the holder hereof . . . shall be by foreclosure of the said Trust Deed given to secure the indebtedness evidenced by this principal note.” The prayer of the complaint was for a foreclosure of the mortgage in the usual form and that a decree be entered that McIntosh was personally liable.

McIntosh filed a disclaimer of interest in the property and a motion to strike certain parts of the complaint. Plaintiff filed a motion to strike the disclaimer. Afterward on November 16,1943, on motion of counsel for complainant defendants, except McIntosh, were defaulted for want of appearance or answer. December 1, 1943, an order was entered which sustained defendant’s motion to strike certain paragraphs of the complaint, overruled plaintiff’s motion to strike the disclaimer, sustained the disclaimer, dismissed the suit as to defendant McIntosh and overruled plaintiff’s motion to file an amended complaint. The suit is still pending. Plaintiff appeals.

This is the third time this controversy has been before this court. In the first case, Bishop Stewart, who was the predecessor of Bishop Conkling, the present plaintiff, brought an action in the Superior court of Cook county against McIntosh and others, to recover on account of their irregular endorsement of the $30,000 note in suit. There was a finding and judgment in defendant’s favor and plaintiff appealed to this court where the judgment was affirmed, 291 Ill. App. 65. Leave to appeal to the Supreme court was denied, 291 Ill. App. XLI. Afterward Bishop Stewart brought a second suit in the Circuit court of Cook county to recover payment of the $30,000 on a different theory from that presented in his first suit. That suit was predicated on the application for a loan for $30,000 presented by McIntosh and Hannah to the State Bank of Chicago and that the Bishop held the $30,000 note and trust deed as collateral to secure the payment of the $30,000. Bishop Stewart died and Bishop Conkling ivas substituted as plaintiff. The case was tried before the court without a jury, there was a finding and judgment in defendant’s favor and plaintiff appealed to this court where, upon consideration, the judgment was affirmed, Stewart v. McIntosh, 316 Ill. App. 212, and leave to appeal to the Supreme court Avas denied, 316 Ill. App. XV.

The facts are stated in our two former opinions and need not be repeated here. In the instant case the facts as alleged in the complaint and exhibits attached, are substantially the same as on the first and second trials except that in the instant case it is alleged that by reason of the failure to pay the tax from 1927 to 1941, the property was sold; and it is further alleged that “by reason of the waste committed or permitted by the defendants Arthur T. McIntosh and Alexander W. Hannah” and the other covenants and agreements of the trust deed, the principal indebtedness and interest “has become and now is due and payable.” In the first appeal to this court we pointed out that the Chicago Title & Trust Company, as trustee, at the request of McIntosh and Hannah, executed the $30,000 note and trust deed “not personally but as trustee” and the note “by its terms expressly provided in substance that neither the trustee nor any beneficiary of the trust should be personally liable . . . , but that the principal amount named should be payable only out of the real estate conveyed by a trust deed;” that the obligations created by the note and trust deed “were secured only by the premises conveyed, every other liability being negatived in express terms.” That the note expressly provided, “In case of default in the payment of this note or of any installment of interest the sole remedy of the holder hereof or of any of the interest coupons hereto attached shall be by foreclosure of the said trust deed.” On the appeal of the second case we said: ‘ The evidence on this trial was the same as that on the prior trial.”

In the instant case, counsel for plaintiff in stating plaintiff’s theory of the case say: “Plaintiff’s theory is that Arthur T. McIntosh and Alexander W. Hannah were partners in certain real estate speculations and as such partners under Land Trust No. 16289 directed the Chicago Title and Trust Company, as trustee thereunder, to execute a note for $30,000 and to secure it by a trust deed conveying the property in question. ... i

“Plaintiff says that McIntosh and Hannah, or either of them, are personally liable for the debt and for any deficiency arising after foreclosure sale, on the theory that they assumed and promised to pay the mortgage debt and that the note is their distinct and separate promise to pay the said indebtedness.

“Plaintiff also says that McIntosh and Hannah as mortgagors in possession of the premises so wasted the premises described in the mortgage as to destroy the security for the debt, and thereby waived and abandoned their alleged right to exemption for personal liability for the payment of said debt.” And further say: “Plaintiff does not seek to hold McIntosh and Hannah as endorsers and guarantors but as partners and makers of the mortgage papers. ’ ’ That ‘ ‘ The mortgage papers were the personal obligations of McIntosh and Hannah. The exemptions cited in the notes and Trust Deed were not authorized by the Land Trust nor by either McIntosh or Hannah.”

The note, trust deed and trust agreement are attached to and made a part of the complaint and the language of the documents must prevail in case there is any inconsistency between the allegations of the complaint and them. Fetherston v. National Republic Bancorp., 280 Ill. App. 151. We think the exemptions recited in the notes and trust deed were authorized by the land trust agreement when the Chicago Title & Trust Co., as trustee under trust No. 16289 executed the note and trust deed at the request of McIntosh and Hannah. That trust agreement No. 16289 was executed by the Title & Trust Co. and the beneficiaries, Hannah and McIntosh, signed the declaration of trust to signify their assent to the terms of it. The document provides: “It is understood and agreed between the parties hereto, . . . that the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said property and to manage and control said property as hereinafter provided;” that the rights of the beneficiaries shall be deemed to be personal property. The document further provides that it is agreed by the parties and by any person who may hereafter become a party to the agreement that the trustee “will deal with said real estate only when authorized to do so in writing and that it will ... oil the written direction of Alexander W. Hannah or Arthur T. McIntosh” or any subsequent beneficiary “make deeds for, or otherwise deal with the title to said real estate, provided, however, that the trustee shall not be required to enter into any personal obligation or liability” etc.

On May 1,1928, McIntosh, in writing, requested the Trust Company to execute the note for $30,000, and the trust deed, to the State Bank of Chicago, securing the payment of it which constituted a lien on the real estate involved. The note is dated May 1, 1928, for $30,000, and recites that it is secured by trust deed of even date and that they were both executed by the trustee in the exercise of power and authority con-, ferred upon the trustee under trust No. 16289. The trust deed of the same date is executed by the trustee to the State Bank of Chicago, in which it is agreed there is to be no personal liability of any one but that the real estate is the only security. That the trust deed is executed in accordance with the trust agreement; that in case of default in payment of the note, “the sole remedy of the holder hereof . . . shall be by foreclosure of the said Trust Deed.” Under the provisions of the trust agreement, the note and the trust deed, we think it clear that the mortgage papers were not the personal obligations of McIntosh and Hannah and that they were not partners or makers of them.

Plaintiff further contends that “The beneficiaries wasted the security for the debt and are liable in damages to the extent of its diminution.” And in support of this counsel say it is alleged in the complaint that McIntosh and Hannah “as partners and as beneficiaries of said land trust indenture and as mortgagors in possession of said real estate, wasted the property and impaired the security for said indebtedness, thereby changing their limited liability to a general liability and making themselves generally and individually liable to plaintiff.” That the value of the property is not more than $7,000; that at the time the trust deed and notes were executed the premises “were improved with two buildings containing two apartments and two stores but because of the waste committed or permitted by” McIntosh and Hannah, and “their gross, wilful and wanton negligence” in disregard of their duty to preserve the improvements for the benefit of the holder of the notes and trust deed, “said improvements deteriorated very rapidly in the several years subsequent to the execution of said trust deed and notes and to such qn extent” that they were eventually razed and the premises are now vacant and of uncertain value. We think these allegations are insufficient to charge McIntosh or anyone else with waste within the legal meaning of that term. McIntosh was not obligated under the trust deed to keep the premises in good repair. He was not a party to the note or trust deed. The trust deed provided that in case the premises became in a bad state of repair so as to impair the security the payment of the debt might be accelerated and foreclosure had. The application for the loan of the $30,000 made to the State Bank specifically stated that the premises were improved with a two-story, very old, building of no value (291 Ill. App. 65) and it appears in a number of places in the former briefs and records that the improvements were of no value. But counsel for plaintiff say: “The failure to pay taxes and allowing the premises to be forfeited or sold for nonpayment of taxes constitutes waste,” citing Thayer v. Shorey, 287 Mass. 76. In that case a deed conveying certain real estate with a reservation of a life estate to the grantor was executed. The life tenant under the deed failed to pay taxes assessed on the land, the property was sold for taxes and a redemption made by the remainderman who thereupon brought suit against the life tenant. It was held that he could recover against the life tenant under a statute of Massachusetts. The court there said:

“Apart from any question of damages, the plaintiffs in this action are entitled to recover possession of the premises. It is provided by Gr. L. (Ter. Ed.) c. 242, § 1, that ‘If a tenant in dower, by the curtesy, for life or for years commits or suffers waste on the land so held, the person having the next immediate estate of inheritance may have an action of waste against such tenant to recover the place wasted and the amount of the damage, and such action shall be subject to the provisions of law relative to trial by jury. . . .’ ” We think it obvious that the case is not in point.

The decree of the Superior court of Cook county is affirmed.

Decree affirmed.

Niemeyer, P. J., and Hatchett, J., concur.


author: Mr. Justice O’Connor

text:
    Robert Smith, by Marion Barrett, Next Friend, Appellant, v. Gail Saum, Also Known as Gail Smith, Appellee.
    Gen. No. 43,117.

      Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Harry G. Johnson, of Chicago, for appellant.
    Walter B. Prendergast and Charles P. R. Macaulay, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 26,1943, plaintiff, by his next friend, filed his complaint in chancery praying that an alleged marriage entered into between him and defendant be declared null and void. Defendant filed a motion to dismiss the complaint and on February 15, 1944, an order was entered sustaining the motion, the complaint was stricken, plaintiff elected to stand by his complaint, the suit was dismissed for want of equity and on March 10, he filed his notice of appeal.

March 14, defendant filed her verified petition in which she set up that plaintiff was prosecuting an appeal to this court having filed his notice of appeal; that she had no funds to defend the appeal, was wholly destitute and dependent on the charity of her friends and relatives, expected she would give birth to a child in the near future, and prayed that an order be entered allowing her attorney’s fees and costs in defending the appeal. Plaintiff moved to strike the petition on the ground that the court had lost jurisdiction since plaintiff had filed his notice of appeal. March 27 the court entered an order in which it was recited that defendant had filed her petition “for attorney’s and court costs to defend'the Appeal.” That plaintiff had filed a, motion to strike which the court overruled and it was further ordered that plaintiff pay to defendant $325 “as Court costs, Appeal expenses and attorney’s fees to defend plaintiff’s Appeal.” From this order defendant filed a notice of appeal.

The complaint filed by plaintiff by his next friend, praying that the marriage be decreed null and void, set up that plaintiff was 18 years and defendant 19 years of age. That he was a Gunner’s Mate Third Class, United States Navy; that while on leave of absence he was visiting his aunt, his next friend, with whom he made his home when he was not in the naval service; that on November 22,1943, plaintiff was arrested on the complaint of defendant charging him with being the father of her unborn child; that he was placed under arrest, taken to the police station and there delivered into the custody of the “Shore Patrol of the United States Navy,” was taken to the Naval Armory at the foot of Randolph street, Chicago, where he was confined until the tíext morning without any opportunity to consult an attorney as,to his rights; that on the following morning the Petty Naval Officer took him to the Municipal court of Chicago, where a bastardy charge against him was pending and he appeared before Judge Ktjla of that court; that plaintiff remonstrated with the Petty Officer in whose custody he was, that he was not and could not be the father of the unborn child as charged; that upon arrival at the court room of Judge Kula, plaintiff’s aunt, Marion Barrett, his next friend in the instant proceeding, sought to consult with him about the matter but was not allowed to do so by the officer who had charge of him; that when the case was called for hearing the Petty Officer in whose custody he was, told the court without consultation with plaintiff that plaintiff was willing to marry defendant if the proceedings were dismissed. That thereupon the proceedings were dismissed and he was released by the Petty Officer to a policeman who took plaintiff, defendant, defendant’s mother, defendant’s step-father and plaintiff’s aunt, Marion Barrett, in a squad car to the License Bureau in the County Building where application was made for a marriage license, but because of his tender years it was necessary for a guardian to be appointed for him to consent to the issuance of the license. Thereupon he was taken by the officer to the office of the Public Guardian where the proceeding was' had before the Acting Probate Judge and a guardian appointed for him. The parties then returned to the marriage license office where a license was obtained. The parties then went to the Acting Probate Judge where the marriage ceremony was performed; that after the ceremony defendant and her relatives left and plaintiff returned to the home of his aunt, Mrs. Barrett ; that he was immature and inexperienced and had no opportunity to consult with counsel, friends or relatives to ascertain what his rights were; that by reason of “fear, intimidation, threats and representations made to him he was induced to enter into said purported marriage;” that he did not freely and voluntarily consent to marry defendant but did so because he thought the Naval Petty Officer had authority to compel him to do so; that the marriage was never consummated and that he had never lived or cohabited with defendant since the ceremony; that immediately after the marriage he sought advice from the Soldiers’ and Sailors’ Service Council and was referred to the Chicago Bar Association.

It was further averred that plaintiff was not and could not be the father of the unborn child and defendant well knew that the charge she made against him in the Municipal court was false and untrue; “That in truth and in fact, said 'pregnancy of the defendant herein was brought about by some pérson other than the plaintiff, and at a time when the plaintiff had no access to said defendant. ’ ’ And the prayer was that a decree be entered declaring the marriage null and void.

We think the court did not err in striking the complaint. Par. 15, ch. 17, Ill. Rev. Stats. 1943 [Jones Ill. Stats. Ann. 109.165], which is the chapter on Bastardy provides: “If the mother of any bastard child and the reputed father shall, at any time after the time of its birth, intermarry, the said child shall, in all respects, -be deemed and held legitimate.”

A marriage entered into by a man in order to secure his release from arrest on a charge of seduction or bastardy will not be annulled on the ground of duress, where the charge was not made maliciously or without probable cause. Thorne v. Farrar, 57 Wash. 441, and authorities there cited. See also Griffin v. Griffin, 130 Ga. 527; Gass v. Gass (Court of Civil Appeals of Texas) 182 S. W. 1195; Sherman v. Sherman (Iowa) 156 N. W. 301.

In the Thorne case, suit was brought to annul a marriage on the ground of duress. At the close of plaintiff’s evidence the judgment dismissing the suit was entered and plaintiff appealed. The court there said: “If a man lawfully arrested on process for seduction, the prosecution being based upon probable cause, marries the woman to procure his discharge, he cannot annul the marriage upon the ground of duress. Marvin v. Marvin, 52 Ark. 425, 20 Am. St. 191; Jackson v. Winn, 7 Wend. 47, 22 Am. Dec. 563; Sickles v. Carson, 26 N. J. Eq. 440.

“ ‘A marriage brought about by force, duress, abduction, or terror under threats may be annulled. But these influences must have been brought to bear by the other contracting party or with his procurement or connivance. And threats of any legal or penal measures authorized by law and the circumstances of the case will not invalidate the contract. Thus, in particular, if a man under lawful arrest for seduction or bastardy, the complaint being' based on probable cause, chooses to marry the woman as a means of obtaining his release and terminating the proceedings against him, he cannot allege duress as a ground for annulling the marriage. But it is otherwise if the prosecution was maliciously instituted and without probable cause, or if the accused, being pliant and inexperienced, is bullied by the magistraté and yields under threats of more severe penalties than the law allows.’ 26 Cyc. 906, 907.”

In the instant case we think it clearly appears that the proceeding in the Municipal court was brought in good faith. There is no allegation that plaintiff did not have illicit relations with defendant but we think the contrary appears.

The Supreme court of Iowa in the Sherman case, above cited, after announcing the rule which we have above quoted from the Washington Supreme court said: ‘ That they intended to have plaintiff marry the girl or to face a prosecution for his prior conduct may be conceded; but this alone will not avoid the marriage,” citing cases from Arkansas, Vermont and other jurisdictions, and continuing the court said: “Any other rule would make the statute which permits one accused of seduction to avoid the consequences of a prosecution for that offense contrary to public policy and against good morals. He who advantages himself of such a statute must incur all the burdens which it imposes, and it was not intended that the party should go through an idle ceremony, and thus purge himself of a wrong not only to an individual but the state itself. Its manifest object was to legitimatize issue born, secure their future support and make it possible for the guilty party to rectify his wrong. 'That fear of prosecution or conviction of an offense was the impending motive is no reason for invalidating the marriage. In 99 cases ont of 100 such marriages are induced by fear. And, if the charge is not falsely and maliciously made, and without probable cause, it cannot be said that the marriage in a legal sense was under duress.”

Counsel for plaintiff further contends that “When notice of an appeal has been served and filed the cause is transferred to the Appellate Court and the trial Court has no jurisdiction to enter any orders.” We think this contention cannot be sustained. Hart v. Hart, 198 Ill. App. 555. In that case we held that section 15 [par. 16] of the Divorce Act, ch. 40, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.183], applied to suits to annul void or voidable marriages and it is the universal practice and in accordance with the law, for a trial judge in a proper case to award solicitors’ fees and court costs to follow the appeal. But we are of opinion from the record before us that the amount of such allowance should not exceed $125, and we therefore modify such allowance accordingly.

The decree of the Superior court of Cook county is affirmed and the order appealed from will be affirmed, as modified.

Decree affirmed, order modified and affirmed.

Niemeyer, P. J., and Hatchett, J., concur.


text:
    Elfred Jordan, Appellant, v. Henry Mehl et al., Appellees.
    Gen. No. 43,233.

      Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Alfred F. Beck, of Chicago, for appellant.
    Moody & Schultz, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

June 5,1944, plaintiff filed his second amended complaint in chancery praying that, a judgment against him entered in a forcible detainer suit by a Justice of the Peace be declared void and the enforcement of it enjoined. June 26, 1944, a decree was entered which recites that on motion of the attorney for defendant, Mehl, to dismiss the suit, the motion was allowed and the suit dismissed for want of equity. Plaintiff appeals.

It is alleged in the second amended complaint that on October 8, 1943, defendant, Henry Mehl, brought a forcible detainer action before defendant, Nix, a Justice of the Peace of Cook county, against plaintiff, Elfred Jordan, to recover possession of the first apartment at 417 South Oak Park avenue, in the Village of Oak Park. Summons was issued returnable at 4 o ’clock in the afternoon of October 14, 1943. On the day before the summons was returnable, viz., October 13, 1943, Jordan, the tenant, went before Justice Nix “at his office at 7767 Lake Street, River Forest” and demanded a change of venue. That he executed the requisite affidavit prepared by the justice and filed it with him. The justice thereupon granted the change of venue and stated that the case would be heard before Justice Marquadt on October 22, 1943, at 3 o’clock in the afternoon at the office of the justice in Forest Park and that all parties should meet at the office of Justice Nix and go over to Justice Marquadt’s office for trial on October 22, 1943. At the time Jordan paid the justice one dollar for costs in granting the change of venue.

It is further alleged that on October 22, shortly before 3 o’clock in the afternoon, the parties and their attorneys met at the. office of Justice Nix preparatory to going to trial before Justice Marquadt. That the landlord, Mehl, declined to go to trial and accepted $70 from Jordan, being the rent for the premises for the month of October, 1943, which Mehl had theretofore refused to accept. That Mehl further promised to accept $70 a month thereafter as rent for the premises until April 30, 1944. That no trial was had before either justice. That about May 1, 1944, plaintiff was served by defendant Constable Brasie, with a writ of restitution issued by Justice Nix on the judgment entered in the forcible detainer action; that this was the first time Jordan had any notice that a judgment for possession was claimed to have been entered; that on or about May 11, 1944, the justice, upon request, gave Jordan’s counsel a transcript of the record entered in the forcible detainer case. That on May 24,1944, Mehl filed his motion to strike the original complaint to which was attached a purported copy of the judgment certified to by Justice Nix in the forcible detainer case. That afterward the justice refused to permit Jordan’s attorney to see his docket and it is alleged that Jordan believes no judgment was entered; and that the justice lost jurisdiction when he granted the change of venue. That plaintiff and his family reside in the apartment and he is president and controls the Jordan Company, which is engaged in the manufacture of chemicals which are used in the war effort. That the constable, at the direction of Mehl, threatened1 to eject plaintiff and his family from the premises and that he and his family are unable to find another suitable habitation.

Plaintiff, Jordan, further alleges that he has a good defense on the merits to Mehl’s claim for possession in that he occupied the premises under a lease with the former owner of the property from May 1, 1942, to April 30, 1943, at a rental of $80 per month for the apartment and one garage stall; that by the regulations of the office of the O. P. A. under the Emergency Price Control Act of 1942, the monthly rental for the apartment was reduced from $80 to $70 per month from July 1,1942, at which date the rent was frozen at $70 per month and thereafter Jordan paid $70 per month to the former owner until April 30, 1943, at which time Mehl acquired title to the property and refused to renew plaintiff’s lease; that about June 12, 1943, Mehl and his wife submitted a written lease to plaintiff for the apartment in question covering a period from July 1,1943, to April 30, 1944, at a rental of $80 per month in direct violation of the regulations of the O. P. A.; that Jordan immediately signed and returned the lease to Mehl and retained a duplicate of it signed by Mehl and his wife, as landlords; that notwithstanding this fact, Mehl, about July 24, 1943, served a 60 day written notice on Jordan attempting to terminate the lease and demanding possession on September 30, 1943, in which notice it was stated that Jordan had refused to execute the written lease and that the forcible detainer action was predicated on such written notice; that since that time the rent had been paid monthly at $70 a month, as above mentioned. It is further alleged that Mehl violated the rules of the O. P. A. in that he neglected to furnish substantially the same service as that which had been rendered prior to March 1, 1942, in that he had discontinued janitor and other services mentioned. Attached to and made a part of the second amended complaint as exhibits are the writ of restitution and two certified copies of the docket of the Justice of the Peace, one dated May 11 and the other May 19, 1944, and a letter from the Justice of the Peace to Jordan dated June 2, 1944.

Defendant, Mehl, filed his motion to dismiss to which a verified petition filed by Jordan was attached as an exhibit, petitioning the Justice of the Peace to satisfy the judgment for possession, which the petition states was entered October 22, 1943. Jordan filed objections to the motion.

There appears in the record, an answer to the second amended complaint filed June 24, 1944, by Justice Nix, in which he says that on October 22,1943, both parties with their counsel, appeared before him, defendant having two witnesses ready to go to trial before Jus-, tice Marquadt, before whom the change of venue had been granted; that at the suggestion of counsel for Mehl the parties conferred and came to an agreement as a result of which Jordan tendered $70 for the October rent, which was accepted by Mehl, and it was further agreed that Jordan might occupy the premises until April 30,1944, at a rental of $70 per month; that “I entered judgment for possession and stayed the .writ until April 30th, 1944, ... I have since entered satisfaction of said judgment on the ground that the agreement created a new tenancy satisfying the former claim.”

Counsel for defendants say this answer was filed without leave of court and was not brought to the attention of the chancellor when the hearing was had on Mehl’s motion to dismiss the complaint.

Counsel for plaintiff contends that no valid judgment was entered by the justice and that he attempted to amend his record but the amendment was unauthorized and ineffective; that there was a change of venue granted by Justice Nix, which prevented him from entering any orders thereafter. We are unable to agree with these contentions. The most that can be said is that Jordan appeared before the justice the day before the summons was returnable, filed the affidavit for a change of venue, paid the justice the costs of one dollar, the justice said the change of venue was granted, and the case would be heard before Justice Marquadt on October 22, at which time the parties should appear before Justice Nix and then go before Justice Marquadt. The record further shows that the parties met at Justice Nix’s office and there entered into an agreement so that it was unnecessary to have the change of venue entered of record and the papers and documents delivered to Justice Marquadt.

We hold there was no change of venue. We are further of opinion that the transcripts certified to by Justice Nix on May 11 and May 19 are to the effect that a judgment for possession had been entered by him and the writ of restitution stayed until April 30, 1944.

Par. 68, ch. 79, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 71.064], provides that a justice of the peace before the commencement of the trial may continue the cause not exceeding 30 days at any one time. We find no provision for the staying of the execution of a judgment entered by a justice of the peace, except that such writ will not be issued to enforce a judgment for 20 days unless an affidavit is filed, etc. And in case a judgment is entered in a forcible detainer case, writ of restitution shall not be issued for a period of 5 days. Par. 19, ch. 57, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.279].

In the instant case we find no authority authorizing the stay of the writ of restitution, as was attempted to be done for a period of 6 months, but in any event, we are of opinion that when the judgment was entered in the forcible detainer case by the Justice of the Peace and it was agreed that Jordan might continue to occupy the apartment upon the payment of $70 a month until April 30, 1944, this created a new tenancy which could not be terminated without further action on the part of the landlord.

Since we have reached' the conclusion that the decree dismissing the suit must be reversed and the cause remanded, we refrain from discussing whether the rules of the O, P. A. and the act of Congress were violated; and for the further reason that neither the provisions of the O. P. A. nor of the- statute, which it is claimed were violated, have been pointed out in a way by counsel. These matters can be gone into when the case is tried on its merits.

The decree of the Superior court of Cook county is reversed and the cause remanded with directions to overrule the motion to dismiss and for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

Niemeyer, P. J., and Hatchett, J., concur.


author: Presiding Justice Niemeyer.

text:
    L. E. Almon et al., Appellants, v. American Carloading Corporation et al., Appellees.
    Gen. No. 43,035.
    opinion filed December 11, 1944;
    released for publication December 27, 1944.
    Luther M. Walter and Helen W. Munsert, for appellants; Orr, Vail, Lewis & Orr and Daniel D. Carmell, for appellees.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Winifred F. Fleming, Appellee, v. Thomas Donovan and Nellie Donovan, Appellants. Winifred F. Fleming, Appellee, v. Nellie Donovan, Appellant.
    Gen. Nos. 43,120, 43,121.

      opinion filed December 11, 1944;
    released for publication December 27, 1944.
    Charles V. Palkenberg, for appellants; Louis T. Herzon, for appellee.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Lillian M. Price, Administratrix to Collect of Estate of Arno T. Roner, Deceased, Appellant, v. Caroline G. Meier, Appellee.
    Gen. No. 43,137.
    opinion filed December 11, 1944;
    rehearing denied December 26, 1944; released for publication December 27, 1944.
    Harold V. Snyder, for appellant; Prank T. Jordan, for appellee; Stephen J. Sullivan, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


author: Justice Matchett.

text:
    United Film Ad Service, Inc., Appellee, v. Bankers Life and Casualty Company and Carroll Dean Murphy and Company, Defendants. Bankers Life and Casualty Company, Appellant.
    Gen. No. 43,093.

      O’Connor, J., dissenting.
    opinion filed December 11, 1944;
    rehearing denied December 26, 1944; released for publication December 27, 1944.
    Hubert Lee Steed, for appellant; Clausen, Hirsh & Miller, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Edith L. Mitchell, Appellee, v. David Swesnik and Swesnik Loan Company, Inc., Appellants.
    Gen. No. 43,113.
    opinion filed December 11, 1944;
    rehearing denied December 26, 1944; released for publication December 27, 1944.
    Myer H. Gladstone, for appellants; Tenney, Sherman, Rogers & Guthrie, for appellee; S. Ashley Guthrie, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Frank O. Koepke, Appellant, v. Peter J. Schumacher et al., Defendants. Alice Campo, Appellee.
    Gen. No. 43,150.
    opinion filed December 11, 1944;
    rehearing denied December 26, 1944; released for publication December 27, 1944.
    Reuel H. Grünewald and Robert F. Kolb, for appellant; Harold Omar Mulks, for appellee.
   Opinion by

Justice Matchett.

Hot to be published in full.


author: Justice Hatchett.

text:
    Lawrence Ebert and Ann Ebert, Appellants, v. City of Chicago, Appellee.
    Gen. No. 43,184.

      opinion filed December 11, 1944;
    released for publication December 27, 1944.
    Dwork & Epton, for appellants; Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Hatchett.

Not to be published in full.


author: Justice O’Connor.

text:
    David Fagel, Appellant, v. Sterling Brands, Inc., and General Finance Corporation, Defendants. General Finance Corporation, Appellee.
    Gen. No. 43,125.
    opinion filed December 11, 1944;
    released for publication December 27, 1944.
    John H. Lyle, P. P. Murray and Ernest H. Gager, for appellant; Seymour M. Lewis and Theodore Rubovits, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Justice O ’Connor.

text:
    David J. Carroll, Appellee, v. Leander J. McCormick Building Corporation, Appellant.
    Gen. No. 43,134.
    Niemeyer, P. J., specially concurring.
    opinion filed December 11, 1944;
    released for publication December 27, 1944.
    Anderson & Clarke and Dunbar & Rich, for appellant; William J. Remus and George T. Madden, for appellee; Thomas H. Murray, of counsel.
   Opinion by

Justice O ’Connor.

Not to be published in full.


text:
    H. Burton Schatz, Appellant, v. American National Bank and Trust Company of Chicago et al., Appellees.
    Gen. Nos. 43,187, 43,188.
    Matchett, J., dissenting.

      opinion filed December 11, 1944;
    rehearing denied December 26, 1944; released for publication December 27, 1944.
    Irving S. Berman, for appellant; Abraham Miller, of counsel; Lewis C. Murtaugh, for certain appellees; Kirkland, Fleming, Green, Martin & Ellis, for certain other appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Justice Huffman

text:
    Alice Stemkowski, Administrator of Estate of Adolph Walter Stemkowski, Appellant, v. J. H. Patterson Company, Appellee.
    Gen. No. 9,979.

      Dove, P. J., concurring in result.
    Opinion filed September 19, 1944.
    Rehearing denied December 12, 1944. Released for publication January 9, 1945.
    B. Jay Knight, of Rockford, for appellant; Roy F. Hall, of Rockford, of counsel.
    Burrell & Burrell, of Freeport, for appellee; David M. Burrell, of Freeport, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action by appellant as administrator of the estate of her five year old son, brought under the Injuries Act, for wrongful death. Appellant and her family live in an outlying district adjacent to the City of Rockford. A narrow roadway runs in front of the residence and is surfaced with an "oil and asphalt compound, being what is commonly called a black-top road. The road runs east and west.

On the day in question, appellant’s intestate, together with two other small boys, was playing along the south side of the road. Edsil Harrolle at the time in question, was in the employ of appellee and engaged in the operation of one of its trucks. Appellant’s intestate was struck by the left front fender of the truck, which threw him in such a manner that the rear wheels passed over his body, causing death.' Appellant brings this appeal from judgment on verdict for appellee defendant.

The evidence shows the surfaced'portion of the road in question to be approximately 15 feet in width. The photographs in evidence disclose there are no sidewalks along either side of the road and that the yards in front of the houses extend out to either edge of the black-top surface of the road.

'The evidence is undisputed that appellant’s intestate, together with two other small boys, was playing along the south side of the highway; that appellee’s driver was approaching from the east with a truck load of coal; that he was driving at a speed of 10 or 15 miles per hour; that the truck and load weighed 13,900 pounds; that the road was level and clear; that no automobiles were approaching the place in question from either direction; that the driver first saw the children along the side of the roadway, at a distance of about two and a half blocks; that he judged they were four or five years old; that he did not continue to watch them; that he could have seen them had he looked; that there was nothing to prevent his watching the children; that they were in plain view; that he knew the road was narrow; that the boys were near the south edge of the black-top; that he did not sound any horn or give any warning of his approach, as he came to the place where they were standing; that he had driven over that street many times, and had seen children playing along the sides of the road; that he does not know what part of the truck first came in contact with the deceased; that the road was dry, the brakes on the truck in good condition, and the day clear.

The driver of the truck states that when he was about five or six feet from the deceased, he saw him take two or three steps backward, which carried him toward the south edge of the black-top portion of the road. It appears from the evidence that the left front fender struck the boy, throwing him in such a manner that the left rear wheels passed over his body, causing his death.

Appellant urges the driver of the truck was negligent and did not use reasonable and ordinary care under the circumstances. In this respect they argue that the driver knew the habit of children in this neighborhood in playing along this road; that he knew these children were present on the day in question; that he admits he did not observe them from his first notice of their presence, over two blocks away, until when within five or six feet of the place where the deceased was standing, when he saw him take several steps backward toward the side of the truck. They urge the driver was negligent in not observing the children and in not giving warning of his approach.

The question of traffic interference is not involved in this case. According to appellee’s driver, no traffic was approaching him and no traffic was following him at the time in question. Therefore, he had nothing to divert his attention and nothing to obstruct his view of the children at the side of the road. We are of the opinion the driver of this truck in approaching the place where the children were playing, owed them the duty of reasonable and ordinary care. Knowing that children were accustomed to playing in and along this street, it was the duty of the driver in the exercise of reasonable and ordinary care, to either give warning of his approach or to keep the children under such observation and his truck under such control, that he would not run over them. Morrison v. Flowers, 308 Ill. 189, 196; Ogden v. Keck, 253 Ill. App. 444, 447; Kusminski v. Waser, 314 Ill. App. 438, 454. Also, in this connection we find that sub-section (d) of par. 172, § 75, ch. 95½, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 85.204] provides that every driver of a vehicle shall exercise proper precaution upon observing any child upon a roadway.

It’ is clear from the testimony of the driver of the truck that he was in no way surprised by the presence of the deceased, nor hindered in the operation of the truck by traffic. He knew the children were there and he knew it was the habit of children in this neighborhood to play upon and along this road. He states he could have seen the deceased as he approached the place of the accident, had he looked. The evidence shows after becoming aware of the presence of the boys for more than two blocks away, he paid no further attention to them, and sounded no warning of his approach.

Under the circumstances, we are of the opinion the judgment should be reversed and the cause remanded.

Reversed and remanded.

Dove, P. J.: I concur in the holding that the judgment should be reversed and the cause remanded.