author: Mr. Presiding Justice Matchett

text:
    Harry R. Spellbrink, Successor Receiver Reliance Bank and Trust Company, Appellee, v. Continental Illinois National Bank and Trust Company and Northern Trust Company, Appellants.
    Gen. No. 43,498.
    Opinion filed April 8, 1946.
    Released for publication April 23, 1946.

      Arthur E. Walsh, of Chicago, for appellants.
    Thomas H. Fitzgerald, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Defendant banks appeal from judgments against Continental for $200 and against Northern Trust for $400, entered on the findings of the court. The case against Continental was tried on amended count 1 of the complaint and defendants amended answer thereto; that against Northern Trust upon amended count 2 and amended answer.

The actions on material facts are identical. No evidence was taken. The facts are stated in the pleadings and are uncontradicted. The actions were begun September 10, 1942; the judgments were entered April 18, 1945, notice of appeal was given May 4, 1945.

The material facts are that Mrs. Blanche Berrell had a banking account of $4,000 with the Reliance Bank and Trust Company of Chicago. The bank failed. Plaintiff’s predecessor was named receiver. Mrs. Berrell filed her claim with the receiver for $4,000. It was allowed. The receiver had one account with Continental and another with the Northern Trust. Dividends were declared in favor of the creditors of Reliance. December 18, 1935, the receiver drew a check for $200 on the Continental to the order of Blanche Berrell and mailed it to her. June 21, 1937, he drew another check for $200 on the Northern Trust to her order and likewise mailed it to her. August 25, 1937, he drew another check on the Northern Trust for a like amount, which he. also mailed to her. These checks are attached to the complaint and made a part of it, with the indorsements thereon.

Blanche Berrell died September 25, 1935. Margaret Berrell Winek was appointed administratrix of her estate. All these checks came into the possession of Michael Berrell, the husband of Blanche, who indorsed the name of the payee thereon and received the amount thereof. May 12,1941, ”the receiver notified the Northern Trust of the issuance of the above described checks on it, and on May 13, 1941, notified the Continental of the issuance of the check above described on it. These notices were in writing and stated that a demand had been made on the banks to pay the amounts of these checks, which had been already cashed. The written demands were supported by an affidavit of the administratrix, claiming the proceeds of the checks were due and payable to her. The banks did not pay, whereupon the administratrix filed an intervening petition in the receivership proceedings, demanding payment of the dividends. The receiver answered. The court found the indorsements on the checks to be forgeries and entered an. order on the receiver to pay the administratrix the amount of the checks.

The administratrix brought an action in the circuit court against the receiver to recover the amount of . the dividends represented by the checks. The receiver moved to strike the complaint on the ground it did not negative receipt of the proceeds of the checks by the proper heir or heirs of Blanche B err ell or the person lawfully entitled thereto. The stilt was dismissed June 10, 1943, before the cause was put at issue. Continental was not a party to that suit, and it was not served with notice of the filing of the intervening petition nor tendered the right to defend it.

To this present suit on these checks, the answers of the defendant banks set up affirmative defenses to the effect that on January 3, 1936, June 28, 1937, and September 7, 1937, when these respective checks were paid by the defendant banks, the checks did not represent assets of Blanche B err ell, for the reason that prior to his death they were reduced to possession by Michael Berrell, husband of Blanche, who, upon her death, became her sole heir at law. There is no reply to the affirmative matters of defense set up by the defendants. These, not having been waived, stand admitted. Ill. Rev. Stat. 1945, ch. 110, par. 164, subpar. 2 [Jones Ill. Stats. Ann. 104.040, sub-par. (2)]. The signing of another’s name with no intention to defraud is not forgery. People v. Fore, 384 Ill. 455, 51 N. E. (2d) 548. We hold Michael Berrell, being the sole heir of Blanche Berrell and all her debts having been paid, he was entitled to receive her whole estate ; that her estate vested in her surviving husband without proceeding of probate. Moore v. Brandenburg, 248 Ill. 232; In re Heintz Estate (Ohio App.), 38 N. E. (2d) 431; People for use of McKee v. Abbott, 105 Ill. 588; Lewis v. Lyons, 13 Ill. 117. We hold this to be a complete defense to the actions on the merits, and further defenses of the bar of the five year statute of limitations (Ill. Rev. Stat. 1945, ch. 83, sec. 15, par. 16 [Jones Ill. Stats. Ann. 107.275]) and that under sec. 1 of the Negotiable Instrument Act checks issued to dead persons are void (citing Bergman v. Avenue State Bank, 284 Ill. App. 516, to the point, that plaintiff is barred by gross negligence) need not be considered.

Plaintiff suggests the record is not complete and the judgment must be affirmed for that reason. No evidence was offered, but the checks, and other exhibits were attached to the pleadings. The suit was based on these written documents. The Civil Practice Act required these should be attached to the pleadings and made a part thereof. (Smith-Hurd Anno. Stat., ch. 110, par. 160, § 36 [Jones Ill. Stats. Ann. 104.036].) It was therefore unnecessary to also preserve these documents by certificate of evidence.

The judgments are reversed.

Reversed.

O’Connor and Niemeyer, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Shirley Greenfield Golstein, Appellee, v. Samuel A. Golstein et al., Defendants. Appeal of Samuel A. Golstein, Appellant.
    Gen. No. 43,606.
    Opinion filed April 8, 1946.
    Released for publication April 23, 1946.
    David F. Silverzweig, of Chicago, for appellant.
    Irving Eisenman, of Chicago, for appellee; Nicholas A. Socrates, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

June 28, 1945, Mrs. Golstein filed a complaint against Samuel A. Golstein, in which she prayed a divorce for herself, alimony, support and solicitor’s fees for herself and child, permanently and pending the hearing. She made defendant to her complaint several banks, trust companies and other persons having dealings with the defendant. She also prayed the custody of the child might be awarded to her and prayed a discovery of the property of defendant, said to be in the hands of various persons.

On the same day the bill was filed plaintiff gave notice to defendant that at the opening of court on the next day (the 29th) she would appear before Judge Sbarbaro of the superior court-and ask for the entry of an order for a temporary allowance for herself and the child, and also for attorney’s fees. The notice said the motion would be based on plaintiff’s complaint but no copy of complaint was attached. The motion came on for hearing on the morning of the 29th before Judge Sbarbaro. No answer to the complaint had been filed at that time. The attorneys for the respective parties, appeared, and the attorney for plaintiff explained to the court the nature of the motion and reasons for it.

The complaint was in seven paragraphs; set up jurisdictional facts as to the residence of plaintiff; averred she was married to the defendant at Waukegan, Illinois, on March 21, 1945; thereafter maintained conjugal relations with him until on or about June 1, 1945, and that since their marriage she had conducted herself as “a good, true, kind, chaste, and affectionate wife.” She also averred a child born to the parties, Robert Samuel Golstein, was then eight years of age. The sole grounds set up for divorce were in paragraph 4, which said: “Since March 21, 1945, plaintiff has been informed that the defendant, Samuel A. Golstein, at the time of the marriage entered into with plaintiff, Shirley Greenfield Golstein, had a wife living and undivorced at the time of such marriage. ”

The complaint does not aver either innocence or good faith of plaintiff at the time she entered into the marriage. She does not deny that he had a wife or that she knew it at the time of the marriage ceremony at Waukegan. The complaint makes clear the son, Robert Samuel, was born several years before the Waukegan ceremony. Plaintiff does not present a case which appeals to a court of equity.

Section 1 of the Divorce Act (Ill. Rev. Stat. 1945, ch. 40 [Jones Ill. Stats. Ann. 109.169 et seq.]) provides it shall be a sufficient cause for divorce if either of the parties “had a wife or husband living at the time of such marriage.” This complaint does not allege that to be the case but avers only plaintiff has been informed to this effect. She does not say that she believes it to be true.

When the matter came on for hearing the attorney for defendant entered his appearance and stated to the court that the case had extraordinary aspects ; that the plaintiff before the marriage entered into a contractual obligation, which he undertook to read to the court. The judge interrupted, and this colloquy took place:

“The Court: What are you asking for now, Do you want a continuance?
Mr. Silverzweig: I want a chance to examine the complaint. The file is not yet in the Clerk’s office.
The Court: But in the meantime, let me ask you, how can this woman sustain herself and the child?
Mr. Silverzweig: On that issue, this man without any legal requirement, and without any court order did support that child, without any legal requirement. This woman for herself is entitled to nothing and nothing will be paid to her other than what is provided in this agreement. If there is any order to the contrary, we are not going to pay. We will file supersedeas and take it all the way up. This case was filed yesterday. Why all this haste ?
The Court: How can she sustain herself and this child for any period of time?
Mr. Silverzweig: This woman is capable of working.
The.Court: There is nothing in the law of this state that compels any woman to work. Draw the following order . . .
Mr. Silverzweig: I want to say this. It is just a matter of time. I have not yet read the complaint because the clerk does not have the file.
The Court: How much time do you want?
Mr. Silverzweig: I want five days to file my answer to the Complaint after I have read it. Put the matter over for a week or ten days, and at that time I will have the man here and we will have a full hearing.
The Court: Very well. Draw the following order: $25.00 a week; One Hundred Dollars temporary solicitor’s fees, thirty days.
Mr. Silverzweig: No, if the Court please, that refutes my object. I want my pleadings on file before any order for any money is granted.
The Court: That is the order.
Mr. Silverzweig: Because we claim they are entitled to nothing.
The Court: That is the order. You have the right to take it up if you wish. Draw the order.
Mr. Silverzweig: Now, I am going to ask for a notice of appeal to be filed by us in ten days, to operate as a supersedeas on that order.
The Court: Yery well."

Whereupon the order was entered.

An examination of the complaint shows, there is no clear averment by plaintiff of a cause for divorce, nor are facts stated from which it would appear to the court plaintiff was without means to support herself and child during the pendency of the suit. The entry of the order was purely arbitrary and can hardly be called a judicial proceeding. No witness was sworn; no attempt was made to ascertain facts from which the court could be informed as to what justice would require. The plaintiff may be able to amend her complaint and state a good cause of action. Ill. Rev. Stat. 1945, ch. 40, secs. 1 and 20 [Jones Ill. Stats. Ann. 109.169, 109.187].

For the reasons stated, the order entered will be reversed.

Reversed.

Niemeyer, J., concurs.

O’Connor, J., I agree with the result, but not in all that is said about the complaint.


text:
    May R. Martinec, formerly known as May R. Sharapata, Appellee, v. Leonard O. Sharapata, Appellant.
    Gen. No. 43,639.
    Opinion filed April 8, 1946.
    Rehearing denied April 22, 1946.
    Released for publication April 23, 1946.
    Harry Leviton, of Berwyn and Chicago, for appellant; Aaron R. Eppstein, of Chicago, of counsel.
    Walter C. Wellman, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

July 26, 1945, petitioner obtained a decree of divorce from her husband, Leonard Sharapata, on the ground of cruelty. A stipulation of the parties was filed as to division of property, which the court found fair and approved the decree. The parties were married at Brookfield, Illinois, February 11, 1933. A boy, Kenneth, was born of the marriage. At the time of the divorce decree he was 4 years of age.

Defendant was awarded the home at Berwyn, Illinois. Plaintiff was to quitclaim it to him. He agreed to indemnify her from any claims or demands on account of his ownership. With exceptions, which included plaintiff’s own clothes, defendant was awarded the household furniture and the automobile. The decree provided:

“It is further Ordered, Adjudged and Decreed that plaintiff be and she hereby is awarded the sole care, custody, education and control of Kenneth, minor child of the parties hereto, during the school year, with custody^ of the said child to defendant during the summer vacation months, each of the parties hereto to have right of visitation at all reasonable times when the said child is in the custody of the other.
“It is further Ordered, Adjudged and Decreed that plaintiff shall reside with the said minor child in Cook County, Illinois, until the further order of Court.”

It also provided that while the child was with plaintiff defendant should pay $10 per week in advance for his support to begin “immediately” with the entry of the decree. The decree also provided the court retain jurisdiction to investigate the fitness of the new home “in the event either party remarries, and to enforce the terms of this Decree.”

August 30, 1945, plaintiff was remarried to Captain Martinee of the United States Army. September 14, 1945, plaintiff filed her petition announcing her remarriage, stating that her new husband was a medical officer, was at present in Chicago on furlough with orders to report at Santa Barbara, California, September 19, 1945, for reassignment “to an army hospital in the United States.” Her petition states she believes it to be fair and equitable under the circumstances and to the best interests of the minor child that he reside with her during the school year “in such State where the said Captain Martinee is assigned.” She therefore prays that the part of the divorce decree which required plaintiff to “reside with the minor child of the parties hereto in Cook County, Illinois,” be vacated, and that she be given permission to reside with the minor child during the school year “where her present husband, Captain Martinee, is stationed by the United States Government.” She also prays for other relief.

The record fails to show the petition was verified, although there are indications that it may have been the intention so to do.

The former husband answered the petition denying petitioner was entitled to have the relief asked for. He said it would nullify his right to visit his child and denied that the relief requested would be for the best interests of the child. He says that when the divorce decree was signed, petitioner went to California and did not see the child until she returned to Berwyn after her marriage to Captain Martinee. He says she left no forwarding address where she could be reached in case of emergency; that if plaintiff is permitted to remove the child from the jurisdiction there is no assurance he will ever be returned to Illinois; that respondent might be required to travel thousands of miles in quest of his child. The answer says the petitioner should be required to live up to the terms of the decree of divorce. He also says he has a good home for the child in this jurisdiction; that his entire life is dedicated to the child; that he loves him, and that to be deprived of the right to see him would cause distress and “heartbreak” to him.

This answer is duly verified.

The petition came on for hearing September 14, 1945, before a judge other than the one who entered the decree of divorce.- The matter was continued from time to time. An examination of the record indicates that no witness was sworn, and that the hearing consisted entirely of statements and pleas by the respective attorneys of the parties, of Captain Martinec and respondent. The record does not indicate the child was present. Captain Martinec made a statement as to certain remarks of the child, of which he complained. These indicated a precocious child, who had definite opinions about the man to whom his mother was remarried.

October 16, 1945, the judge entered an order granting the prayer of the petition. It is as follow's:

“It is therefore Ordered that plaintiff’s motion for modification of Decree relative to custody be and the same hereby is granted; that until the further order of Court plaintiff be and she hereby is permitted to reside with the said minor child of the parties hereto in the United States outside of the State of Illinois during each school year, that defendant have leave to see said child, at plaintiff’s place of abode, at reasonable times during the school year if he so desires, that defendant have leave to have said child during the remaining summer months, that plaintiff be and she hereby is Ordered to deliver said child to defendant at his home within five days after the end of each school year, at plaintiff’s expense, and that defendant be and he hereby is Ordered to permit plaintiff to secure said child from defendant’s home five days prior to the beginning of each school year, at plaintiff’s expense.
“It is further Ordered that plaintiff shall not take the said child out of the State of Illinois until October 21, 1945, but that she may do so thereupon and thereafter in accordance with the foregoing order or pending any appeal taken by defendant.”

Notice of appeal was filed by the defendant October 17, 1945.

The parties seem to agree that section 18 of the Divorce Act (Ill. Rev. Stat. 1945, eh. 40, par. 19 [Jones Ill. Stats. Ann. 109.186]) is applicable and controlling. We hold the statute with amendments has not materially changed the law as declared by the courts in Miner v. Miner, 11 Ill. 43, 50, 51, and Smith v. Smith, 101 Ill. App. 187, 189.

In Miner v. Miner at page 51, the court said :

“It is apparent from the record that there is some intention on the part of the mother, if allowed to retain the custody of the child, to remove her beyond the limits of the state. This can not be tolerated, and must be guarded against.”

In Smith v. Smith at page 189, the Appellate Court said:

“In so far as the decree giving custody of the child to T. H. Smith was of a temporary nature, it is in fieri, and to that extent the final disposition of the infant remains to be made by the court; and the parties are entitled to have her kept within the jurisdiction and reach of the process of the court in order that its mandates may be immediately effective. Such was no doubt a consideration for the agreement between the' father and mother as to the custody of the daughter by T. H. Smith. With the person of the child out of the jurisdiction of the court — out of the State — it is obvious that any further orders concerning its custody would not be immediately effective and thus necessarily deprive the parties of a substantial right.”

To the same effect are Hewitt v. Long, 76 Ill. 399, and Chase v. Chase, 70 Ill. App. 572.

The record does not contain the evidence on which the divorce decree was entered. Every presumption is in its favor. If its provisions are to be changed, the burden of proof is on the party so moving to show why it should be done. The cases seem to agree that in a situation like this the interest of the child is preeminently the thing to be considered. It appears here the infant has a good home within the jurisdiction. Plaintiff is estopped by that decree and by her own contract and conduct. She practically abandoned her child to enter into this speedy remarriage. Three days after the divorce she left the child with its father, the defendant, who resided with a married sister in his home in Berwyn; went to California and was remarried August 30, 1945. She returned to Chicago, resumed possession of the child, and filed her petition for a change of the decree, as stated. She is now represented by an attorney other than the one who represented her when he o.k.’d for her the divorce decree. Her present attorney has made a diligent search for cases from different jurisdictions tending to sustain her view that she has a right to take the child wherever she pleases. As we have seen, that is not the law of this State. It was suggested on the trial the case was one requiring the wisdom of Solomon. As we recall that case, Solomon did not solve his problem by divesting himself of jurisdiction.

The order will be reversed.

Reversed.

O’Connor and Niemeyer, JJ., concur.


author: Mr. Justice O’Connor

text:
    City of Chicago, Appellee, v. Lester Stone, Appellant.
    Gen. No. 43,603.
    Opinion filed April 8, 1946.
    Rehearing denied April 22, 1946.
    Released for publication April 23, 1946.
    J. S. Pressman, of Chicago, for appellant; David H. Kraft, of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Head of Appeals and Review Division and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

June 5, 1945, a quasi-criminal complaint was, by leave of court, filed against defendant, Lester Stone, charging that on the 7th of May, 1945, he purchased from Edward Burke, 18 years of age, one Vadette trumpet in a black case for $5 without the written consent of Ms parents or guardian in violation of sections 168-9 of the Revised Chicago Code of 1931. Defendant was represented by counsel but waived a jury and after hearing, the court found him guilty as charged, assessed a fine of $100 against him and defendant appeals.

The record discloses that the cause was called for trial June 5, 1945, and apparently some days prior, a complaint had been filed against defendant charging him with receiving stolen property, namely the trumpet. When the case was called for trial plaintiff, over objection, was allowed to file an additional complaint which is the one before us.

Edward Burke, called by plaintiff testified that he was 18 years old, lived with his mother, did not go to school but worked; that May 7,1945, he and two other young men about his age stole the trumpet in question from Sylvester Watson;' that afterward they went downtown and he “sold the instrument in a second hand shop;” that he told the man to whom he sold the instrument that it belonged to the witness and he wanted to sell it because he did not have any use for it as he could not play it.

Arthur Olsen, a police officer, testified he arrested Burke and the other boys and took them to the station and Burke admitted he and the other two had held up the Watson boy, took the instrument and sold it to the second-hand store on State street; that they got the address and went down to the store; one of the boys named Martin, directed them to the place.

The evidence, which is uncontradicted, further shows that defendant owned and operated a store which was located at 354 So. State street and another store at 440 South State street. That at the time of the sale of the trumpet the store was in charge of Zak Levy, a young man about 33 years of age, employed by defendant; that the Watson boy who was robbed, had purchased the trumpet about 2 years before for sixty to seventy dollars and-he was also to receive some music lessons; that at the time of the sale Burke told Levy he was 21 years of age and that one of the other boys who was with him exhibited a draft card which showed he was over 21 years old. That Levy was not authorized to buy or sell stolen property or to purchase any property from a minor, by the defendant or any one else.

Defendant contends that the City was not authorized to pass the ordinance in question. We think this contention must be sustained. It is elementary that the power of the City to pass ordinances must be found in the Statute and this is conceded by counsel for the City who say that section 23-94, chapter 24, Ill. Rev. Stats. 1945 [Jones Ill. Stats. Ann. 21.1724], authorized the passing of the ordinance in question. That section provides: “Section 23-94. Second-hand and junk stores — Minors.) To license, tax, locate, and regulate all places of business of dealers in junk, rags, and any second-hand article whatsoever.

“To forbid any person from purchasing or receiving from minors without the written consent of their parents or guardians, any article whatsoever.”

The section of the ordinance which defendant was charged with having violated is found in the Revised Municipal Code of Chicago. It provides: “168-9. No second-hand dealer shall purchase any second-hand article whatsoever from any minor without the written consent of his parents or guardians.”

In Bullman v. City of Chicago, 367 Ill. 217, it was held that sec. 95 of article 5 of the Cities and Villages Act was intended to authorize the licensing and regulation only of second-hand stores carrying on a business similar to junk stores, dealers in junk, rags and similar articles and that the words “any second-hand article whatsoever” must be construed as meaning only things of the same kind as those previously enumerated and could not be held to include articles of a class superior to that to which the particular words belong. In that case the City was permanently enjoined from enforcing an ordinance against secondhand dealers on the ground that the ordinance was invalid. The complaint there set forth the ordinance of Chicago licensing and regulating second-hand dealers. The court then quotes section 95 of article 5 of the Cities and Villages act which was passed in 1935, and as the section was, prior to that time, when it was considered by the court in City of Chicago v. Moore, 351 Ill. 510 and City of Chicago v. Northern Paper Stock Co., 337 Ill. 194. The court then discusses the Moore case where defendant conducted a bookstore in Chicago in which new and second-hand books and magazines were sold. And he was charged with conducting a second-hand store without having obtained a license in violation of the ordinance. And the ordinance under which defendant was convicted was held invalid. After discussing the Northern Paper Stock Co. case, continuing, the court said (p. 224) that the City contended that sec. 95 was amended and “grants the power to municipalities to regulate not merely junk dealers and second-hand dealers whose business is in the nature of junk business, but also grants the power to regulate all dealers in any second-hand article whatsoever.” But the court held this contention was untenable and the ordinance invalid. '

In the instant case we think sec. 23-94 is substantially the same as sec. 95 mentioned in the Bull-man case and that the City was, by that section, authorized to license and regulate only second-hand stores carrying on a business similar to “dealers in junk and rags” and therefore the ordinance is invalid so far as it applies to the facts in the case before us.

We have considered the other contentions made by counsel for defendant but think none of them was of such a character as would warrant us in disturbing the judgment. The case before us, while sometimes said to be a civil case, we think is more properly designated as quasi-criminal as the complaint was in the instant case. City of Chicago v. Dixon, 221 Ill. App. 255.

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

Matchett, P. J., and Niemeyer, J., concur.


text:
    People of State of Illinois, Defendant in Error, v. Ann Jonerth, Plaintiff in Error.
    Gen. No. 43,680.

      Opinion filed April 8, 1946.
    Rehearing denied April 22, 1946.
    Released for publication April 23, 1946.
    Joseph L. McCarthy, of Chicago, for plaintiff in error.
    William J. Tuohy, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Joseph A. Pope, and W. S. Miroslawski, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

March 12, 1945, an information was filed charging that defendant, on the 9th day of March, 1945, in Chicago, stole 4 plate stands valued at $4.00, in violation of paragraph 387, chapter 38, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.328], Defendant entered a plea of not guilty. There was a jury trial, witnesses were called by The .People who testified that defendant stole 4 plate stands of the value of $4.00, on the 3rd floor of Marshall Field & Company. Defendant did not put in any evidence. From the report of the proceedings of the trial it appears that after plaintiff’s evidence was introduced the court instructed the jury that under the law it was their duty to determine whether or not defendant had been proven guilty of the crime charged beyond a reasonable doubt, “and if you so find, then it will become your duty to fix the punishment to Tie imposed.

“The court has not given you any instructions on the subject of punishment. If you find the defendant not guilty, you will sign the verdict finding her not guilty.

“If you find the defendant guilty, you will sign the verdict finding her guilty and return to open court for further instructions on the subject of punishment.

“Tour first duty upon retiring is to elect a foreman or forelady, and after you have done that, and deliberated upon and arrived at a verdict, return it to open court.

“You will retire now and determine whether or not you find the defendant guilty or not guilty.”

This procedure was objected to by counsel for defendant. The bailiff was then sworn, the jury retired and after a time told the bailiff they had reached a verdict and came back into the court room at which time the following appears: “the court: You have arrived at a verdict, have you? forelady of the jury: Yes, your Honor, the court: How do you find— guilty or not guilty? forelady of jury: Guilty, the court: You may go ahead, Mr. States Attorney, as to the question of punishment.” The jury then took their places in the jury box and The People called Thomas A. Laffey, a Sergeant of Police. He testified that he was assigned to the Bureau of Identification as the downtown Chief Inspector; that he kept records of crimes; that he had a record of Ann Jonerth and after some objections and a colloquy between court and counsel the witness read what purported to be the record of defendant, only a part of which we will refer to; that defendant was arrested March 9, 1945, as Dorothy Mason; that in 1926 she was sentenced to 60 days in the House of Correction for larceny and shoplifting. Then followed more than 2 printed pages of the report of the proceeding which shows that defendant went under various names, was arrested and found guilty in Evanston, Milwaukee, Minneapolis, Toledo, Cleveland, St. Louis and many other places, and the penalties imposed. All of this was over objection of counsel for defendant. After this was all read, the court instructed the jury that the Statute provided that every person convicted of larceny, if the value of the property stolen was $15 or less, the person convicted should be confined in the county jail or sentenced to labor in the house of correction “not exceeding one year, and fined not exceeding one hundred dollars.” Continuing the court said: “You may retire now to your jury room for the purpose of fixing the punishment of any time not to exceed one year and not to exceed $100.00. ’ ’ The jury then retired and in a short time returned with their verdict in the following words: “We, the Jury, find the defendant, Ann Jonerth, guilty in the manner and form charged in the information and fix her punishment at confinement in the County Jail for a period of One Year and the payment of a fine of $100.00 and costs,” (signed by the 12 jurors).

Counsel for The People in their brief say: “After uncontradicted evidence, pertaining exclusively as to the guilt of the defendant, was introduced, the jury in an oral finding found the defendant guilty, the jury then proceeded to hear matters in aggravation or mitigation relative to the defendant, in order that it, the jury, might arrive at a proper and just punishment to be imposed upon the defendant. Upon hearing the same, the jury returned the verdict.” In support of this People v. Popescue, 345 Ill. 142, and People v. McWilliams, 348 Ill. 333 are cited. We think the testimony of the officer, who read what he said was from the records of the defendant in the various communities, was inadmissible. There was no evidence as to the truth of any one of these. We are further of opinion that the record discloses the jury attempted to return, as they were instructed they should do, two verdicts, one orally — that the jury had found the defendant guilty — and the other, after the purported record was read by the officer, showing the various crimes with which defendant was charged, finding the defendant guilty, which we have above quoted. We think there was no warrant, in law, to authorize such procedure.

In People v. Popescue, above mentioned, Popescue and another were indicted for murder in the Criminal court of Cook county. They entered pleas of guilty. They were each advised by the court of the legal consequences of their pleas. After the pleas were received and recorded the judge then proceeded to examine the witnesses as to the aggravation or mitigation of the offense, as required by the Statute. The principal ground for reversal was that the trial judge, after the pleas of guilty were entered, and before pronouncing sentence, heard the defendants themselves say they had committed another murder three hours before the crime charged in the indictment and that this evidence was prejudicial and beyond the scope of the court’s authority under the Statute. The court there said (p. 149): “In approaching the issue involved the distinction between the respective duties of the court and jury must be constantly borne in mind. In this State the jury in a homicide case not only have to determine the guilt or innocence of the defendant, but where they find him guilty must also fix the punishment. This double duty of determining both guilt and penalty distinguished the function of the jury from that of the court, where on a plea of guilty all questions of guilt or innocence are disposed of and the only remaining duty is to determine what penalty to impose.” The court then points out that the penalty for murder might be death, life imprisonment or any term not less than 14 years. “Where a jury hears the evidence they must at the same time and from the same evidence determine not only guilt or innocence, but in the same verdict, if guilt is found, they must also fix the punishment.” The court then discusses the nature of evidence that might be introduced before the judge in aggravation or mitigation when considering the punishment to be inflicted, refers to People v. Lane, 300 Ill. 422; People v. Meisner, 311 Ill. 40; People v. King, 276 Ill. 138, and continuing said: “However, the distinction between those three cases and the case at bar must be clearly apparent. All three were jury trials, where the defendants were entitled to have the question of their guilt or innocence fairly determined by the same evidence that would be used by the jury in fixing their punishment. In those cases there were no pleas of guilty, no defenses offered which brought the proof of other crimes within any of the exceptions to the rule, and no proof that the other crimes were closely related in point of time and method of execution.”

The Statute by which the jury in the instant case was authorized to fix the punishment is found in (b) Par. 754a, sec. 6a, ch. 38, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 37.742(1), subpar. (b)].

For the error in permitting the officer to read what purported to be the record of the defendant in the numerous cities in this country and the rendering of the two verdicts, one oral and one written, the judgment of the Municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

Matchett, P. J., and Niemeyer, J., concur.


author: Presiding Justice Matchett.

text:
    Rebecca Springer, Appellant, v. Yellow Cab Company, Appellee.
    Gen. No. 43,584.

      opinion filed April 8, 1946;
    rehearing denied April 22, 1946;
    released for publication April 23, 1946.
    Irving G. Zazove, for appellant;
    Miller, Gorham, Wescott & Adams, for appellee; Herbert O. DeYoung and Charles F. White, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


author: Justice Niemeyer.

text:
    Goldblatt Brothers, Inc., Appellee, v. S. R. Jorgensen, Appellant.
    Gen. No. 43,653.
    opinion filed April 8, 1946;
    rehearing denied April 22, 1946;
    released for publication April 23, 1946.
    Chancellor & Chancellor, for appellant;
    Bernard Brown and William A. Goldman, for appellee; Bernard Rosencranz, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Samuel Gertz, Florence Grossman and Theodore J. Horwitz, Co-partners, Trading as Junior Towers, Appellees, v. Louis G. Neiman, Appellant.
    Gen. No. 43,679.
    opinion filed April 8, 1946;
    released for publication April 23, 1946.
    Robert E. Cherry, for appellant;
    Brown & West, for appellees; Lawrence J. West and Albert Langeluttig, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice O ’Connor.

text:
    Eberhart Plaza, Inc., Appellant, v. Elvira Hayes, Appellee.
    Gen. No. 43,635.
    opinion filed April 8, 1946;
    released for publication April 23, 1946.
    George W. Lawrence, for appellant;
    no appearance for appellee.
   Opinion by

Justice O ’Connor.

Not to be published in full.


author: Justice O’Connor.

text:
    A. E. Carpenter, Trustee, Appellee, v. Samuel Dick Pryce and Elizabeth Drew Pryce, Appellants.
    Gen. Nos. 43,649, 43,650.
    opinion filed April 8, 1946;
    rehearing denied April 22, 1946;
    released for publication April 23, 1946.
    Francis Heisler and Stanley F. Evans, for appellants;
    Gardner, Morrow, Fowler & Merrick, for appellee; John F. Manierre, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Justice Wheat

text:
    George Geisler, Appellant, v. B. B. Benken et al., Appellees.
    Gen. No. 9,463.

      Opinion filed February 28, 1946.
    Rehearing denied May 7, 1946.
    Released for publication May 8, 1946.
    C. C. Worthy, of Hardin, for appellant.
    S. L. Miller and William M. Cox, both of Hardin, for appellees.
   Mr. Justice Wheat

delivered the opinion of the court.

This is an equity action to enforce an alleged liability of the defendants as stockholders and directors of the Bank of Brussels, an Illinois banking corporation. The circuit court found the issues in favor of the defendants and plaintiff appeals.

The original complaint was filed in the circuit court, April 10, 1943, and was followed by several amended complaints, the last of which charged, in substance, that on October 11, 1941, the plaintiff recovered a judgment against the Bank of Brussels in the circuit court of Calhoun county for the sum of $1,247.50 and costs, which judgment was affirmed by the Appellate Court of the third district, October 29, 1942; that execution was issued out of the circuit court, December 28, 1942, and returned unsatisfied, March 29, 1943; that such bank, on April 13, 1939, found business unprofitable and had become financially embarrassed, at which time it disposed of its assets and discontinued business, being then insolvent; that at the time of the rendition of the judgment and at the time of the disposition of the assets, certain of the defendants were directors of such bank and had notice of such judgment, and certain of the defendants were stockholders of such bank, and prays judgment.

Defendants filed answers and documents designated as pleas, which, in substance, denied liability; charged that the judgment of October 11, 1941, in favor of plaintiff and against the bank was based upon a conveyance of real estate by the plaintiff to such bank, on February 25, 1937, and upon the refusal of the bank, on a date approximately two weeks thereafter, to re-convey such property to the plaintiff; that any right of action which plaintiff had against defendants as stockholders or directors accrued at that time and not later than about March 12, 1937; that more than five years elapsed between March 12, 1937, and the commencing of the suit on April 10, 1943, by reason of which, said action was barred by the five year statute of limitations; that any such right against the defendants as stockholders was also barred by an Act providing for a one year statute of limitations in favor of bank stockholders, approved April 22,1941, in force July 1,1941.

The cause was heard upon stipulations and proof in open court, from which no serious disagreement as to the facts appears between the parties. We do not have the benefit of the opinion of the trial, court, and the briefs of the parties might have been made more helpful.

As to whether the action against the stockholders is barred by either statute of limitations, it is necessary to determine the date when such limitations began to run, i.e., whether such date was March 12, 1937, when the bank refused plaintiff’s demand to reconvey certain real estate, or on October 11, 1941, being the date the circuit court entered judgment against the bank, or on October 29, 1942, being the date such judgment was affirmed by the Appellate Court.

The general rule seems to be that the right of action against a stockholder of a banking corporation arises at the same time as his right of action against the corporation. (Burnett v. West Madison State Bank, 375 Ill. 402.) However, in this and other cases therein discussed, the right of action was based upon a contract, express or implied, and did not grow out of a tort.

We find only one Illinois case seeming to hold that the same rule is applicable to tort actions, that of Boor v. Tolman, 113 Ill. App. 322. A careful reading of the opinion in this case, however, discloses that the court decided the case upon the invalidity of proceedings in 1872 to consolidate the banks there involved. Said attempt to consolidate was prior to the time when plaintiff’s claim accrued and prior to the entry of any judgment thereon. After considering the invalidity of the consolidation proceeding, the court went on to say that the holding in favor of the stockholder could also be supported on the ground that the liability sought to be enforced accrued “when the cause of action arose upon which the judgment was founded” and not when the judgment was entered. No cases were cited in support of this latter statement and the only case in which this opinion has been cited on this point appears -to be Anderson v. Hillmer, 15 F. Supp. 459, which involved a contractual creditor who had not yet reduced his claim to judgment.

We consider the better rule to be that stated in Cohen v. Toy Gun Mfg. Co., 172 Ill. App. 330, wherein the court stated that a tort claim prior to judgment was not enforceable against stockholders and that a tort claim was not a “debt” prior to judgment. Although that case did not involve stockholders of a banking corporation, the statute.under which liability was sought to be imposed was similar to the liability created by the Constitution and Banking Act, and we believe the rule applicable to the instant case. This being true, it follows that no cause of action on a tort claim can arise as to stockholders prior to judgment against the corporation, and that the limitation period in such cases begins to run upon the entry of the judgment against the corporation.

Plaintiff urges that the limitation period in the instant case did not begin to run until October 29, 1942, being the date the Appellate Court affirmed the judgment of the circuit court. This is not the law in Illinois, as the mere pendency of an appeal does not postpone the commencement date of the running of the statute. (Peoria County Board of Sup’rs v. Gordon, 82 Ill. 435.)

Our conclusion, therefore, is that the period of limitation commenced to run on October 11, 1941, being the date the circuit court entered judgment against the bank, and since the complaint in this case was filed April 10, 1943, it is apparent that the five year statute of limitations is not a bar.

Defendants urge, however, that secs. 6a, 6b and 6c of ch. 16½, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 10.55-10.57], provide a one year limitation as to actions to enforce the stockholders’ liability of a banking corporation. This amendment to the banking Act became effective July 1, 1941, and sec. 6a (5) provides :

“ ... references to a bank liability ‘hereafter accruing’ or ‘which shall hereafter accrue’ are to a liability accruing after the effective date of this Act; ’ ’

Sections 6b and 6c of the Act provide as follows:

“6b. Limitation op Actions to Enforce Superadded Liabilities of Stockholders. § 2. After the effective date of this Act no civil action shall be commenced in any court within this State, by a creditor or on behalf of creditors of any bank, to enforce any of the hereinafter described superadded liabilities of any stockholder of such bank, unless such action be commenced within one year next after
(a) the effective date of this Act, (1) insofar as such action may be based on any existing bank liability which has or shall have matured into a cause of action against such bank at or before the effective date of this Act and which shall not then be barred by a statutory limitation heretofore applicable to such liability, and (2) insofar as such action may be based on any existing bank liability payable on demand, if the right to make such demand be complete at the effective date of this Act;
(b) the time when the right to make demand for payment of any bank liability payable on demand shall become complete, (1) insofar as such action may be based on any existing bank liability payable on demand, if the right to make such demand be not complete at the effective date of this Act, and (2) insofar as such action may be based on any hereafter accruing bank liability payable on demand;
(c) the fixed future time when any liability, of such a bank, payment of which cannot be enforced against the bank until a fixed future time after the effective date of this Act, shall be payable without demand, insofar as such action may be based on any liability of the bank which shall be so payable by the bank at a fixed time after the effective date of this Act, whether that bank liability (1) be in existence at the effective date of this Act or (2) shall accrue thereafter;
(d) the time when the bank’s liability shall hereafter accrue, insofar as such action may be based on any hereafter accruing bank liability of a kind that matures into a cause of action against the bank at the same time that the bank’s liability accrues;
(e) the earliest time after the effective date of this Act at which a creditor of a bank shall have it within his power to complete every step necessary to entitle him to commence action against the bank to enforce the payment of any bank liability of a class other than the classes of bank liabilities to which specific reference has heretofore been made in this section, insofar as such action may be based on any bank liability of such other class.
6c. Application op Section 6b. § 3. The provisions of section 2 of this Act shall apply to every such civil action against any such stockholder based on any bank liability in existence at the effective date of this Act as well as to every such civil action against any such stockholder based on any bank liability which shall accrue after the effective date of this Act.”

The provisions of this Act are applicable to the instant case and provide a limitation period of one year in which action may be brought to enforce the stockholders’ liability. In this case, the commencement period of the limitation Act was October 11, 1941, being the date of the circuit court judgment against the bank, and the suit not having been commenced until April 10, 1943, the statute is a complete bar to the action against the stockholders.

The sole charge of liability against such defendants as were directors is based upon ch. 32, par. 157.42, subpar. (c), Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 32.042, subpar. (c)], as set forth in plaintiff’s brief and argument. This paragraph provides that directors who vote for, or assent to, distribution of assets of the corporation to shareholders after the filing by the corporation of a statement of intent to dissolve, without adequate provision for, or payment of debts and liabilities of the corporation, shall incur liability to the creditors damaged thereby. The complaint does not charge, nor does the proof show, any distribution to the shareholders of the bank of any corporate assets, so that this section has no application. The proof, on the contrary, shows that the assets were transferred to the Federal Deposit Insurance Corporation.

For the reasons above stated, we hold that no actionable liability of the defendants as stockholders or directors has been established. The decree of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Archie Anderson, Appellee, v. Frank Krancic, Appellant.
    Gen. No. 10,041.

      Opinion filed March 8, 1946.
    Rehearing denied May 7, 1946.
    Released for publication May 9, 1946.

      Hibbs & Pool, of Ottawa, for appellant.
    John H. Armstrong, of Ottawa, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal from a judgment in favor of the plaintiff, Archie Anderson, against the defendant, Frank Krancic, for personal injuries he sustained, and damage to his automobile, resulting from the collision of his .automobile and a truck, operated by the defendant, at a highway intersection near the town of Wedron on the morning of July 11, 1942.

The east and west road on which the plaintiff, was driving his automobile west, crossed a north and south road on which the defendant was driving the truck north, toward the intersection.

The complaint has four counts the charging parts of which are substantially as follows: Count one alleges that while the plaintiff, in the exercise of due care, was driving his automobile in a westerly direction along the east and west highway; that the defendant in a careless, negligent and unskilful manner so operated his truck in a northerly and westerly direction into the intersection, or through the same, that he collided with plaintiff’s automobile.

Count two alleges due care of the plaintiff while driving his automobile in a westerly direction on the highway; that the defendant failed to be on the lookout and observe traffic on the road on which plaintiff was driving, and to exercise ordinary care driving into or through the intersection, whereby plaintiff was injured and his automobile damaged.

Count four is similar to count two except that it charges that the defendant drove to, into and through the intersection without giving the plaintiff the right of way, contrary to sec. 68, art. IX of the Uniform Act regulating traffic on highways [Ill. Rev. Stat. 1945, ch. 95½, par. 165; Jones Ill. Stats. Ann. 85.197].

Count three alleges due care on the part of the plaintiff while driving his car in a westerly direction on said east and west highway; that as he was passing through the intersection, the defendant carelessly, negligently and unskilfully so managed and operated the truck in a northerly direction to, into and through the intersection at a high and excessive rate of speedto-wit, upwards of 40 miles per hour, which was unreasonable and improper in regard to the traffic and use of the way, and contrary to sec. 49 of art. IV (of the aforesaid act). The answer of the defendant denies the plaintiff’s allegations of due care and the defendant’s acts of negligence set forth in each count."

At the close of the plaintiff’s evidence and again at the close of all the evidence, the defendant submitted motions for a directed verdict in his favor under each count. The defendant contended that the evidence does not tend to prove that the plaintiff was in the exercise of due care as alleged in his complaint. The motions were denied, the issues were submitted to a jury and there was a verdict and judgment for the plaintiff for $2,500.

The defendant filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial in the event motion for judgment was denied. Motion for judgment notwithstanding the verdict was denied; motion for new trial was denied.

It is assigned as error that the court erred denying the motion for judgment notwithstanding the verdict because there is no evidence tending to prove the allegations of the complaint that the plaintiff was in the exercise of due care; also, that the court erred denying the motion for a new trial because the manifest weight of the evidence is that the plaintiff was not in the exercise of due care as alleged in his complaint.

The evidence in the case is conflicting on the question of the position of the vehicles relative to the intersection at the time of the collision. The plaintiff testified that the defendant drove from the south into the intersection about 10 or 12 feet west of the west line of the intersection, and struck his automobile. The defendant testified that he entered the intersection from the south, drove the front wheels of the truck to the north boundary of the intersection, then backed the truck into the intersection to make a left turn toward the west and the plaintiff drove his car against the truck. It is a well settled rule that the verdict must respond to the issues, and a verdict pursuant to evidence tending to support a different theory of the cause of action from that presented in the pleadings cannot stand. (64 C. J., p. 1074, sec. 879.) The verdict in this case cannot stand on any negligence, if any, resulting from the backing of the truck by the defendant into the intersection, if he did so.

The evidence consists of the testimony of the parties and the witness, Elmo Wilson, who testified on behalf of the plaintiff. Photographs were introduced in evidence showing the right fenders of both cars damaged by the impact. Soybeans were growing in the field at the southeast corner of the intersection, and each driver could see the vehicle of the other, as the cars were being driven toward the intersection.

It appears from the evidence that each of the highways in question was 42 feet wide from fence line to fence line and gravelled in the middle to a width of from 18 to 22 feet. There was no sign at the intersection limiting traffic. It was a clear day, the roadways were dry and vehicles moving on the highways raised dust from the gravel. For 18 months before the accident, the plaintiff had been working in the town of Wedron which lies west of the intersection. The plaintiff knew that trucks loaded with cement were being driven from Wedron eastward toward the intersection and there turning south toward highway number 71, which was then under construction, and that the empty trucks returned to Wedron by the same route. The plaintiff left his home to go to work in Wedron about 6:30 o’clock a. m. on the day of the accident. He was driving his Chevrolet passenger automobile about 25 to 30 miles an hour as he approached the intersection from the east. As he approached the intersection, the defendant was driving his son’s Ford truck north toward the intersection, following another truck which was also on the way to Wedron to be loaded with cement for construction work on highway 71. The defendant, according to his testimony, took his son’s place that morning hauling cement and he did not know the way from highway 71 to Wedron; that his employer had directed him to follow the other empty truck on the trip to Wedron. The defendant admitted that he could not keep up with the leading truck before he reached the intersection, and that he was driving fast. Also, that he did not see the automobile of the plaintiff as it neared the intersection from his right.

On the question of his due care, the plaintiff testified that when he was 40 or 50 feet from the intersection, he took a quick look to his left and saw a cloud of dust, but that he did not see the truck of the defendant; that he looked to his right, and he did not see anything preventing him from passing through the intersection ; that if there was a truck coming from the south on the north and south highway, it would be within his vision 8, 10 or 15 rods south of the intersection. The dust was 8 or 10 rods south of the intersection when he saw it.

The truck which the defendant was attempting to follow, had turned west at the intersection into the road leading to Wedron before the plaintiff reached the intersection. The plaintiff further testified in substance as follows: When I was within 20 or 30 rods from the intersection, I was looking straight ahead. As I came down the road, I saw that truck turn the corner. I was then 20 or 30 rods from the intersection. I had no difficulty seeing the truck, when I was 20 or 30 rods from it; I was looking west at the truck. I kept looking west until I was within 40 or 50 feet from the intersection. I guess the first time I looked to the southwest was when I was 40 or 50 feet from the intersection. I saw the dust and paid no more attention to it. I had plenty of room to go through the intersection. Both the north and south roads are about 40 feet wide. I did not see the defendant’s truck as it approached the intersection. I do not know if the dust prevented me from seeing the truck. The collision was 10 or 12 feet west of the west line of the north and south highway. I do not know if that truck came around the corner; where it came from, I personally do not know. The first time I saw the defendant’s truck was when my car and his truck collided. I was in the west half of the intersection when Krancic’s truck came around the corner and crammed into my left front fender, throwing me out of the seat up in the air.

Elmo Wilson testified that he was driving toward Wedron and about 75 feet to the rear of the plaintiff’s car before the accident. That he heard the defendant’s truck coming from the south, but that he did not see it moving, toward the intersection. That the plaintiff’s car was just past the intersection when the truck of the defendant struck the car. That from a point on the east and west highway 60 rods east of the intersection, a truck or automobile could be seen coming from the south on the north and south highway toward the intersection. That in the morning at the time of the accident, the north and south road is not used much for traffic, only by trucks.

Defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, have the same effect and present only a question of law as to whether there is a total failure or lack of evidence to prove any necessary element of the plaintiff’s case. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300.) While the burden of proof is always on the plaintiff, in proceedings of this kind to show that when the injury was received he was in the exercise of ordinary care, that question is' one of fact, which must be determined by the circumstances attending and surrounding the injury. Whether the evidence tends to prove such care is a question of law. A court can only determine adversely to the plaintiff when no other conclusion can be reasonably drawn from the uncontradicted facts and from the evidence that is favorable to the plaintiff. Pienta v. Chicago City Ry. Co., 284 Ill. 246, 251. If there is evidence which, standing alone, tends to prove the material allegations of the complaint, a motion for a directed verdict, or for judgment notwithstanding the verdict, should be denied. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300.)

Whether the plaintiff in this case exercised due care and caution for his own safety, was a question of fact for the jury unless his conduct was so clearly and palpably negligent, that all reasonable minds would agree that he did not exercise that degree of care and caution which reasonable, ordinary and prudent persons would exercise under the same circumstances surrounding and attending his injury. (Reidel v. Camp, 311 Ill. App. 656.)

' We do not .find that the rule requiring a traveller who is about to cross in front of a moving vehicle must be on the lookout for that vehicle, has been so rigidly applied by our Supreme Court that the failure to look is negligence per se under all circumstances.

In the case of Winn v. Cleveland, C., C. & St. L. Ry. Co., 239 Ill. 132, page 139, it is stated: “This court has repeatedly held that a traveller approaching a railroad crossing is required to use such care as a person of ordinary prudence would exercise under the same circumstances, and, this ordinarily demands the use of the faculties of sight and hearing to discover whether a train is approaching or not, but it cannot be said, as a matter of law, that the failure to look or listen under all circumstances will bar a recovery. It is usually a question of fact for the jury to determine, in view of all the surrounding circumstances, whether the failure to look and listen constitutes negligence or lack of due care.” Citing cases including Chicago & A. R. Co. v. Pearson, 184 Ill. 386. In the Winn case the court continued as follows: “In Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson, 120 Ill. 587, it was held that the degree of care required cannot be formulated into a particular rule of conduct, for the reason that the conduct of ordinary cautious and prudent men will vary with the varying circumstances.” To the same effect is Partlow v. Illinois Cent. R. Co., 150 Ill. 321; Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132.

In the case of Heidenreich v. Bremner, 260 Ill. 439, it is held that the failure of a person to look for approaching vehicles before starting to cross a street at a public crossing is not neces'sarily negligence per se under all circumstances. The court in that case states as follows: “It has long been the settled rule in this jurisdiction that it cannot be said, as a matter of law, that a person is in fault in failing to look and listen if misled without his fault or where the surroundings may excuse such failure.” (Chicago & A. R. Co. v. Pearson, 184 Ill. 386; Graham v. Hagmann, 270 Ill. 252, and Morrison v. Flowers, 308 Ill. 189.)

The case of Moran v. Gatz, 390 Ill. 478, reverses the judgment of the Appellate Court finding the plaintiff guilty of negligence as a matter of law. The plaintiff in that case stepped off the curb at a crosswalk where she had the right of way over the defendant’s automobile as it approached the crosswalk. In that case it is stated: “The Appellate Court held that appellant must be held to have seen — what she could have readily seen, had she looked, — i.e., appellee’s approaching car and having ignored it, and continued in a normal walk, placed herself in the path of appellee’s car, and this was contributory negligence on her part as a matter of law. The errors assigned are, that the Appellate Court erred in construction of the right of way statute in determining whether appellant exercised due care, and in holding in effect that a pedestrian crossing an intersection on a crosswalk has no right to presume that a motorist will accord him the right of way.”

In the Moran case the Supreme Court says, “In Adler v. Martin, 179 Ala. 97, 59 So. 597, it was declared that whether a pedestrian is guilty of negligence per se in failing to look up and down a street for approaching vehicles before attempting to cross, or whether such failure is negligence at all, is a question for the jury on the particular facts in each case.”

In the present case the plaintiff had the benefit of the assurance that the defendant would yield the right of way to him. (Moran v. Gatz, 390 Ill. 478.) This assurance was a material element of the case to be considered by the jury.

In the Moran case it is further stated: “The general accepted rule is that while a statute such as ours gives pedestrians the right of way, it does not confer upon them an advantage which necessarily absolves them from guilt of contributory negligence. Each case must be determined from its particular facts. The question of contributory negligence is one which is preeminently for the consideration of a jury. It cannot be defined in exact terms and unless it can be said that the failure of the plaintiff to look again was so palpably contrary to the conduct of a reasonably prudent person as to show contributory negligence, the issue is one for the jury. (Blumb v. Getz, 366 Ill. 273.) Whether failure to look was shown and constituted, in this case, want of due care, was an issue of fact for the jury. Morrison v. Flowers, 308 Ill. 189. The rule seems to be quite universal that a pedestrian’s failure to keep a constant lookout, or to look again after having determined that he can safely cross ahead of the approaching traffic, is not contributory negligence as a matter of law, but it is a question for a jury whether he was in the exercise of ordinary care for his own safety. ’ ’

The plaintiff in this case testified that he was driving his automobile about 25 to 30 miles an hour as he drove it toward the intersection; that when he was about 40 or 50 feet from the intersection he took a quick look to his left toward the north and south highway and he saw a cloud of dust which was 128 or 160 feet from the intersection; that as he drove toward the intersection, he was watching a truck which had turned west from the north and south road at the intersection. Whether the plaintiff should have looked again, or whether he did not use care assuming that a vehicle approaching the intersection on his left would give him the right of way, were questions of facts to be taken into consideration by the jury in determining whether the plaintiff was, at the time, in the exercise of due care for his own safety." Under authorities cited, the failure of the plaintiff to keep a constant lookout, or to look again after determining that he could safely cross ahead of approaching traffic, was an issue which was properly submitted to the jury. The court did not err in denying the motion for judgment notwithstanding the verdict, and denying the motion for a new trial.

The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Bristow

text:
    Thomas J. Killian and Ethel M. Killian, Appellees, v. Welfare Engineering Company, Appellant.
    Gen. No. 10,060.

      Opinion filed March 8, 1946.
    Opinion modified and rehearing denied May 7, 1946.
    Released for publication May 9, 1946.
    Runyard & Behanna, of Waukegan, for appellant; Eugene M. Runyard, of Waukegan, of counsel.
    Edwards & Block and William R. Dalziel, all of Waukegan, for appellees; Sidney H. Block and Bernard M. Decker, both of Waukegan, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal by the defendant, Welfare Engineering Company, a corporation, from an order of the circuit court allowing a motion for summary judgment made by plaintiffs, Thomas J. Killian and Ethel M. Killian, in an action of forcible detainer.

Inasmuch as this appeal is solely on the pleadings and affidavits, this court is impelled to give close attention to the allegations set forth therein.

The complaint consists of four counts, and alleges, in substance, that on January 6, 1937, the trustees for the unsecured creditors of the First National Bank of Waukegan, Illinois were the owners of the following described premises situated in the City of Waukegan, County of Lake, and State of Illinois:

That part of Lot 7 in Block 14 in Original Town of Little Fort (now City of Waukegan) described as follows: Beginning at the South West corner of said' Block 14 and running thence Northerly along the West line of said Block to the North West corner of said-Lot 7; thence East on the North line of said Lot 101 feet; thence South Westerly on a straight line to a point in the South line of said lot 76.33 feet East of the South West corner thereof; thence West on the South line of said lot 76.33 feet to the place of beginning;

said premises were at all times herein mentioned improved with a two story building and known as ^ 42-Madison St., Waukegan, Illinois.

The complaint further alleges that on the above-mentioned date, the said trustees entered into a lease, written or verbal, with the Welfare Engineering Company, a corporation, as lessee for said premises for the term of one year from Jan. 1, 1937 to Dec. 31, 1937. At the end of the term the defendant corporation continued in possession and occupation of said premises, and still continues in such possession without any new. arrangement or lease, and has, moreover, paid the monthly instalments of rent provided for in the original lease.

On Nov. 23,1943, it is claimed, plaintiffs, Thomas J. Killian and Ethel M. Killian acquired title in fee simple as joint tenants to the leased premises by a conveyance from the trustees. No further agreements or leases, however, have been entered between plaintiffs and defendant.

On Sept. 2, 1944, plaintiffs served on defendant a written demand for possession of the premises, and notice of termination of the tenancy on Dec. 31, 1944, but defendant has refused to comply therewith. Plaintiffs contend, therefore, that the rights of defendant to the premises were terminated by the notice, and that plaintiffs are entitled to possession.

Attached to this complaint, as Exhibit A, is a copy of the written notice of termination of the tenancy served on the defendant on Sept. 2, 1944, which describes the premises exactly as they are described in count 1 of the complaint.

Defendant filed a motion to transfer said cause to the equity side of the court and consolidate it with a proceeding for an injunction commenced by it against the plaintiffs. .

The material allegations of said motion are that under the lease from the trustees for the premises described as 42 Madison street, these premises were bound on the west by Spring street, and on the east by the Chicago and Northwestern railroad, and included therein an area between the building at 42 Madison street and the railroad tracks. This area was owned by the railroad and leased to the trustees.

It is further alleged that the plaintiffs entered this area and destroyed part of the platforms built by defendant thereon, thereby, obstructing the use of this area by defendant.

This motion to consolidate was denied by the circuit court, and defendant filed an answer which was essentially a general denial of the allegations in the complaint.

Plaintiffs, thereupon, filed their motion for summary judgment supported by affidavits in which they restated all of the facts alleged in the complaint, and further stated that the lease in question was in writing.

Attached to the said motion for summary judgment were three exhibits: Exhibit 1 was a copy of the lease, wherein the premises are described as “42 Madison St., Waukegan, Illinois.” Exhibit 2 was a certified copy of the deed from the trustees to the plaintiffs, describing the property by metes and bounds, and Exhibit 3 was a copy of the aforementioned notice of the termination of the tenancy served on defendants on Sept. 2, 1944, which described the premises by metes and bounds, and included the designation, “the said property being improved by a two-story brick building and known as 42 Madison St., Waukegan, Illinois.”

In defense of the motion for summary judgment, an affidavit was made by William J. Bargen, president of the defendant corporation. This affidavit asserts that defendant was in the occupation and possession of certain premises known as 42 Madison street which were bounded on the west by Spring street and on the east by the Chicago and Northwestern railroad tracks.

It states further, that defendant received two notices from plaintiffs. The first was served on Aug. 22, 1944, and demanded the immediate use by plaintiffs, described therein as lessees, of the area between the building and the railroad tracks, and the removal of all items of personal property situated thereon. The second notice, served on Sept. 2, 1944, upon which this action is predicated, did not, according to defendant’s contention, include the area described in the first notice, and was, therefore, insufficient to terminate the tenancy.

Plaintiffs challenged the sufficiency of this affidavit by a motion to strike, on the ground that it merely stated conclusions, and did not contain any facts constituting a defense to plaintiffs’ complaint, and was, therefore, in violation of Rule 15 of the Supreme Court (Ill. Rev. Stat. 1945, ch. 110, par. 259.15 [Jones Ill. Stats. Ann. 105.15]).

The trial court granted this motion. Defendant did not ask to file any further affidavits, or to amend the affidavit on file, and the court, thereupon, allowed plaintiffs’ motion for summary judgment.

The question presented by the appeal of defendant, Welfare Engineering Company, a corporation, before this court, is whether the circuit court erred in striking defendant’s affidavit of merits, and in allowing plaintiffs’ motion for summary judgment.

It is well established under the statutes and decisions of this State that the terms and provisions of sec. 57 of the Illinois Civil Practice Act, which authorizes the issuance of summary judgments, are applicable to actions of forcible detainer. Ill. Rev. Stat. 1945, ch. 110, par. 181; Jones Ill. Stats. Ann. 104.057; Wainscott v. Penikoff, 287 Ill. App. 78 (1936).

Rule 15 of our Supreme Court sets forth the requirements for affidavits in support of, and in opposition to, summary judgments. Ill. Rev. Stat. 1945, ch. 110, par. 259.15; Jones Ill. Stats. Ann. 105.15. It provides, in substance, that the affidavits shall be made on personal knowledge of the affiants, shall set forth with particularity the facts upon which the claim or defense is based, shall have attached thereto sworn or certified copies of all papers upon which the party relies, and shall not consist of conclusions, but of such facts as would be admissible in evidence.

The Supreme Court in Shirley v. Ellis Drier Co., 379 Ill. 105, has interpreted the foregoing statutory provisions, and approved the test applied by the Appellate Court in that case, 310 Ill. App. 518, in determining when the issuance of a summary judgment is proper.

The Appellate court stated: “The court takes the affidavit of the plaintiffs and the affidavit of defendant, compares both of them precisely as if the affiiavits represented oral evidence of witnesses appearing on the witness stand, and then determines whether, if the evidence contained in the affidavits was orally submitted to the court, there would be something left to go to the jury ... If there would be nothing left to go to the jury, and the court would be required to direct a verdict, then a summary judgment will be entered.”

This test is reiterated and followed by the court in Fisher v. Hargrave, 318 Ill. App. 510. In this case, moreover, the court expressly rejects the contention, made also by defendant in the instant case, that under Bule 15, the affidavits for plaintiffs should be strictly construed and those for defendants liberally. With reference to this point the court further stated:

“The requirements of an affidavit filed in opposition to a motion for summary judgment are no different from those necessary in support of a summary judgment in favor of plaintiff. It was so held in Chicago Title and Trust Co. v. Cohen, 284 Ill. App. 181, where we affirmed an order of the Superior Court striking the affidavit of merits and entered a summary judgment for plaintiff because defendant’s affidavit consisted of conclusions and incompetent evidence in violation of Rule 15 of the Supreme Court.”

From the foregoing statutory provisions and interpretations, it appears that where a plaintiff has filed a proper motion for summary judgment supported by affidavits, it is incumbent upon defendant to file an affidavit showing that he has a sufficiently good defense to plaintiffs’ claim, for a court to properly submit to a jury.

In the instant case, plaintiffs, Thomas J. Killian and Ethel M. Killian filed an affidavit in support of their-motion for summary judgment, which set forth, essentially, the following facts:

There was a written lease dated Jan. 6, 1937, for one year, between the trustees, plaintiffs’ predecessors in title, and defendant, which demised “the premises known as 42 Madison St., ’ ’ owned at that time by the trustees. Defendant held over under this lease and paid rent. On Nov. 23, 1943 plaintiffs acquired the said property from the trustees by a deed in which the premises were described by metes and bounds. On Sept. 2,1944, defendant was given a notice of termination of the tenancy by the plaintiffs, in which the premises were described not only by metes and bounds but also by street number — following the precise language of the- lease.

Attached to the motion for summary judgment were copies of the lease, the deed from the trustees to the plaintiffs, and the notice of termination.

The foregoing evidentiary facts presented in plaintiffs’ affidavit and supporting documents clearly establish their right to a summary judgment, unless defendant can show, by affidavit, that it had a meritorious defense which the circuit court could properly have submitted to a jury.

On behalf of the defendant, Welfare Engineering Company, a corporation, William J. Bargen, president of the company, filed the only affidavit of defense. There was no express denial therein of the allegations made in plaintiffs ’ affidavit. These allegations may be deemed to be admitted, for any facts alleged in an affidavit for summary judgment, which are not denied by the affidavit of defense, are thereby admitted. Chicago Title & Trust Co. v. Cohen, 284 Ill. App. 181, 185.

The only defense offered in defendant’s affidavit is that the notice to terminate the lease, served on Sept. 2,1944, and upon which this action is predicated, did not include all of the premises under the lease, and, therefore, did not constitute a sufficient notice under the statutes for the termination of tenancies. Ill. Rev. Stat. 1945, ch. 80, par. 5; Jones Ill. Stats. Ann. 72.05.

This statement is a mere conclusion and should be stricken under the terms of Rule 15, unless it is supported by evidentiary facts appearing in the affidavit. Chicago Title & Trust Co. v. Cohen, 284 Ill. App. 181; Fisher v. Hargrave, 318 Ill. App. 510.

The only facts alleged in defendant’s affidavit with reference to defendant’s leasing of any property appear in paragraph 4 which states:

“That the defendant was in the occupation and possession of certain premises on the Northerly Side of Madison St., in the City of Waukegan, Lake County, Illinois, bounded on the west by Spring St., and on the east by the Chicago North Western Railway spur or switch track, and being known and designated as 42 Madison St., as a tenant from year to year during the year 1944, such tenancy being for the year ending Dec. 31, 1944.”

In this paragraph defendant does not claim that the property was leased from plaintiffs, or from plaintiffs’ predecessors in title; in fact, it is impossible to tell from the allegation who is the owner of all or part of the property. Furthermore, the bold assertion that a tenancy from year to year exists, without alleging fact establishing such tenancy is a gratuitous conclusion of law of defendant.

Paragraph 5 of the affidavit of defense refers to a notice from plaintiffs, dated Aug. 2, 1944, demanding that defendant remove all items of personal property upon a described area, of which plaintiffs are described as lessees of the railroad.

No attempt is made in defendant’s affidavit to connect this railroad property described in this notice, with the property leased under the designation of 42 Madison street, or to show plaintiffs’ connection with .this property, other than the mere statement in the notice that plaintiffs are lessees. Nor is there any showing that any sublease was ever made of this property by plaintiffs to defendant..

In paragraph 7 of the affidavit of defense, defendant refers to the notice upon which this action is predicated, in which the premises are described by metes and bounds and by street number, to wit, 42 Madison street. In paragraph 8, defendant contends that this notice was insufficient, in that it included only a portion of the premises, and did not include the portion referred to in the prior notice,

This argument is untenable. If defendant had, in fact, leased this railroad property from the plaintiffs, or from the plaintiffs’ predecessor in title, it was incumbent upon defendant to state in the affidavit of defense the facts showing how such lease, if it existed, was created, who were the parties thereto, and their interest in the premises demised. The only statement contained in the affidavit is that defendant rented premises known as 42 Madison street, and, the notice to terminate the tenancy included the precise words of description contained in the lease — “known as 42 Madison street.” If, however, defendant claims to have leased other property, in addition to that described in plaintiffs’ affidavit as 42 Madison street, then defendant should properly have alleged the facts which formed the basis for such alleged lease.

It cannot be contended that this series of vague and unrelated allegations which appear in the defendant’s affidavit constitute a meritorious defense which a court could properly present to a jury.

It is, therefore, the opinion of this court that under the requirements of Bule 15, that defendant’s affidavit shall set forth “with particularity the facts upon which the defense is based” and “shall not consist of conclusions, but of such facts as would be admissible in oevidence,” the affidavit in the instant case was wholly insufficient, and was properly stricken by the circuit court.

Defendant, however, in an attempt to supplement these fatal defects appearing in its affidavit, and, having failed to move to amend it, or to file additional affidavits, urges this court to look to the unverified pleadings for the facts in determining whether the motion for summary judgment was properly allowed. More particularly, defendant calls attention to its motion to consolidate the instant case with an equity proceeding.

This contention is without merit in the light of the decisions of this State. It has been repeatedly held, in passing upon the propriety of the issuance of a summary judgment, that it is not sufficient that defendant may have filed pleadings, which on their face set up a good defense, defendant must file a sufficient affidavit of defense to prevent the entry of a summary judgment under sec. 57 of the Civil Practice Act. Roberts v. Bauerman Bros., Inc., 300 Ill. App. 213; Chicago Title & Trust Co. v. Cohen, 284 Ill. App. 181; Wainscott v. Penikoff, 287 Ill. App. 78; Colfax Grain Co. v. Bradford, 225 Ill. App. 419; People ex rel. Barclay v. West Chicago Park Com’rs, 308 Ill. App. 622.

In Roberts v. Bauerman Bros., Inc., 300 Ill. App. 213, the court unequivocally passed upon this issue, and the language 'used by .the court is singularly appropriate in the instant case. The court stated at p. 217:

“Defendant urged that the trial court erred in granting the motion for summary judgment without regard to the pleadings previously filed which raised substantial issues of law and fact to be tried- by a jury. The fact that the pleadings joined issue does not prevent the entry of a summary judgment. The pleadings should be considered in order that the court may know what the issues are. Ordinarily a motion for summary judgment presupposes that the pleadings properly join issue ... A person may be able to state a good defense in a pleading and yet when he is required to set up that defense in affidavits according to the requirements of Buie 15 of the Supreme Court it may become apparent that he has no defense. If he has no defense, he is not entitled to a trial.”

In Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465, relied upon by defendant, the court held similarly at p. 470:

“The pleadings (important) are not controlling. If it appears from facts stated in the affidavits or documents that the answer pleaded is sham, or false or frivolous it will be disregarded.”

It is the opinion of this court, however,- that even if judicial notice were taken of the facts alleged in defendant’s unsworn motion to consolidate this case with the equity proceeding for an injunction, such allegations would not establish a meritorious defense to plaintiffs’ motion for summary judgment.

The motion to transfer the cause, which was denied, is too voluminous to be set forth verbatim within the reasonable confines of an opinion, but the salient allegations of facts may be summarized as follows :

The premises described as 42 Madison street under the lease, between the trustees and the defendant were located on the northerly side of Madison street, and, allegedly, extended to the .west side of the Chicago and Northwestern railway tracks. At the time the lease was executed the trustees had title only to the westerly part of 42 Madison street, which included that part on which the building was located. The trustees had leased from the railroad the area between the building and the railroad tracks. This leased area— a separate strip — was, defendant claims, included in the lease to defendant of the premises known as 42 Madison street.

At the expiration of the lease defendant continued in possession and paid the rent to the trustees. When the trustees transferred that portion of the property to which they had title to the plaintiffs, defendant paid the full rent to plaintiffs.

It is at once apparent that defendant fails to show, even in this unsworn motion, how or when plaintiffs entered into any lease on their part with the railroad for this separate parcel of property owned by the railroad. Nor is it shown that plaintiffs by any overt act on their part entered into a sublease of this property with defendant. Nor are there any facts alleged that the lease covering the railroad property was renewed from year to year between the trustees and the railroad, or between the present plaintiffs and the railroad. Finally, if plaintiffs had no lease from the railroad at the time they acquired title to the property leased to the defendant and known as 42 Madison street, how can defendant argue that its lease with plaintiffs covered this property owned by the railroad?

It is clear to this court that defendant’s contention, that 42 Madison street included not only the parcel of land owned by plaintiffs’ predecessors in title, upon which the building and improvements are located, but also that strip of land lying between the building and the railroad, and owned by the railroad, is unsupported by the allegations of fact appearing in the affidavit and in the pleadings.

Nor can it be assumed that the unequivocal designation of 42 Madison street in the lease itself carried a separate parcel of property owned by a separate owner.

Under the recognized rules of construction where property is leased by street number, the lease will include only the lot upon which the building itself is situated. Enk v. McCaffrey, 128 Ill. App. 343; Patterson v. Graham, 140 Ill. 531.

In the Enk case, supra, the court held at p. 348:

“While it may be plausibly claimed that the demise of the dwelling house on lot 72 includes the lot, we cannot understand how it can be reasonably contended that it includes lot 71. Lot 71 is not described in the lease in terms, nor is it included in the description given. It could not pass as an appurtenance of lot 72, because ‘ one piece of land held in fee, or by a lesser title, cannot be appurtenant to another piece of land.’ St. Louis Bridge Co. v. Curtis, 103 Ill. 410, 418.”

The instant case is even stronger than the Enk case, supra. Whereas in the Enk case the description by street number involved two lots owned by one person; in the case at bar, the two parcels of land are owned by separate owners — plaintiffs and the railroad.

There is another and more apparent reason why the defense interposed by defendant in the instant case must fail. The entire argument, as advanced incompletely in defendant’s affidavit, and with some additional details in the motion to transfer, proceeds on the assumption that there were two parcels of land included in the lease, and that the notice to terminate the tenancy refers only to one parcel, and is, therefore, insufficient.

It is obvious that if the words “42 Madison street” appearing in the lease, can be said to cover two parcels of land owned by separate persons, without any express language to that effect, they should also be construed to cover the same parcels of land in a notice to terminate the tenancy.

With reference to the sufficiency of notice, the general rule is that it is good if, upon the whole, it is intelligible and so certain that the tenant cannot reasonably misunderstand it. 35 Corpus Juris § 366.

In Metropolitan West Side El. Ry. Co. v. Govostis, 199 Ill. App. 451, the court held that a notice identifying the property as the “demised premises” without describing them, was sufficient.

In the instant case, the notice containing the precise words in the lease was clearly sufficient.

In support of its contention that the notice was insufficient, however, defendant cites Sheldon v. Sutherland, 222 Ill. App. 598, where a lease demised “the first floor and basement and shed adjoining the rear of the building known as no. 113-115 Marion St.,” and the court held that the notice, which demanded possession only of “the store of 133-115 Marion Street,” was insufficient to terminate the tenancy.

This case is clearly distinguishable from the case at bar. Whereas, in the case cited the lease specifically referred to three distinct parcels of property and the notice mentioned only one of them, in the instant case, the notice includes the precise words of the lease.

It is apparent to this court from all the pleadings and affidavits submitted on this appeal, that the circuit court did not err in striking the affidavit of defense, which violated the plain requirements of Rule 15 that evidentiary facts rather than conclusions shall be alleged. Nor are there allegations of such evidentiary facts in any of the pleadings submitted by defendant. Plaintiffs’ motion for summary judgment was, therefore properly allowed.

We are in accord with the ruling of the circuit court, and the judgment should be affirmed.

Judgment affirmed.