author:
Mr. Justice Hebel
      Mr. Presiding Justice Burke

text:
    Roseland Cab Company for use of Esther Hibley, Administratrix of Estate of James Hibley, Deceased, Appellee, v. Savings Mutual Casualty Company, Appellant.
    Gen. No. 42,335.
    Burke, P. J., dissenting.

      Opinion filed June 30, 1943.
    Rehearing denied December 8, 1943.
    Beverly & Klaskin, of Chicago, for appellant; Samuel T. Klaskin, of Chicago, of counsel.
    Prescott, Burroughs & Taylor, of Chicago, for ap-.< pellee; Euclid Louis Taylor and A. M. Burroughs, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment entered in a garnishment proceeding. The case was tried before the court without a jury and a judgment entered March 23, 1942, upon the court’s finding that at the time of the service on the garnishee of the writ issued in said cause there was due and owing from the garnishee, Savings Mutual Casualty Company, a corporation, to the defendant, Bos eland Cab Company, the sum of $2,500. The court, at the close of plaintiff’s evidence, denied garnishee’s motion to discharge garnishee and after the close of all the evidence the court overruled garnishee’s motion for judgment non obstante veredicto and motion for a new trial, and also overruled garnishee’s motion in arrest of judgment. Thereupon the court entered judgment for the above amount. Garnishee prayed an appeal to this court.

In plaintiff’s affidavit for garnishment’it is stated that: “this affiant avers that said defendant has no property within the knowledge of this affiant, in its possession liable to execution; but this affiant has just reason to believe that Savings Mutual Casualty Company, a corporation, is indebted to said defendant, or has effects or estate of said defendant in its hands.”

Interrogatories were filed and garnishee in answering stated that the car involved in the accident was one not covered by any indemnity policy issued by garnishee to the Eoseland Cab Co., Inc. A replication was filed by the plaintiff.

Plaintiff’s theory of the case is that the automobile involved in the accident was covered by an indemnity policy issued by the garnishee.

Garnishee’s theory of the case is that the automobile involved in the accident was the personal property of the chauffeur who was driving the same at the time of the accident and that it was not covered by any policy' issued to the Roseland Cab Co., Inc., by the garnishee; that in a garnishment proceeding the garnisher can have no greater rights than the judgment debtor; and in this case there was no competent proof made that the automobile involved in the accident was covered in the policy of insurance issued by the garnishee. In its answer the garnishee denied that the car involved in the accident was covered, and cites the case of Soukup v. Halmel, 357 Ill. 576. In that case the principal issue was whether or not at the time of the accident one, Anton Halmel, had permission under the terms of the policy to drive the automobile, and the court said at page 579:

‘ ‘ The proof of such permission lies at the foundation of plaintiff’s right to recover under the policy. Unless and until that fact was proven there was no duty on the part of defendant to establish any defense under the policy.”

In the cited case it was urged that the burden of proof was upon defendant to show that Anton Halmel did not have permission to use the car at the time of the accident, and the court said:

“The burden of proof rested upon plaintiff to establish that Anton was covered by the policy. That burden was not shifted by the affirmative allegation in the answer that he was not covered. The denial raised the issue as to whether he was covered, and not whether a liability existed under the policy because of an alleged breach. Lavine v. Indemnity Ins. Co., 260 N. Y. 399,183 N. E. 897; Indemnity Ins. Co. v. Jordan, 158 Va. 834, 164 S. E. 539; Union Indemnity Co. v. Small, 154 id. 458, 153 S. E. 685.”

Attention was also called to the case of Jones v. Manufacturer’s Cas. Ins. Co., 313 Ill. App. 386, where the court said:

“The plaintiffs in this case can recover against the garnishee only if the assured could have successfully maintained an action against the insurer, upon the insurance contract. (Pogline v. Central Mut. Ins. Co., 280 Ill. App. 5; Wold for use of Wegener v. Glens Falls Indemnity Co., 269 Ill. App. 407.)”

It is also sug’gested that the court held in that case that the burden of proof rested upon the plaintiffs and cited the Soukuy case on the point.

In Schmitz for use of Ginsburg v. 75th & Exchange Drug Co., Inc., 303 Ill. App. 192, 196, it is stated:

“The right of the creditor against the garnishee cannot, by garnishment, rise higher than the right of the debtor against the garnishee. If the right of the debtor is subject to a right of the garnishee, the right of the creditor is subject to the same right.”

In this case it is contended that there is no proper evidence in the record that the car involved in the accident was or is covered by any contract of insurance issued by the garnishee.

In discussion of the facts it appears that James Hibley was struck by a taxicab at 93rd and State Streets. The cab was driven by Lester Cullin and was owned by the Roseland Cab Co. It was occupied by three passengers, none of whom appeared as witnesses. The cab took Hibley and his wife to the Roseland Hospital at 111th and Cottage Grove. The accident happened at 8:45 p. m„ The police arrived at the Hospital 15 minutes later. Before the police came Lester Cullin and Mrs. Hibley sat in the waiting room. Lester Cullin showed the police squad the taxicab with license number 502027 and later signed a statement at the police station in which he said that the cab was State License No. 502027 and City License No. 554266, and that was the automobile that struck Hibley.

It further appears that the next morning he sent a notice of the accident to the defendant insurance company, in which he said that that cab was license No. 502027. ^Several days later he -testified at the Coroner’s inquest the same:

“Q. Was the automobile that was described in the record at the first hearing by the accident prevention officer, was this the same call you were operating the night of the 26th of May? A. Tes, sir.”

It also appears that when the garnishment proceeding approached trial Cullin made an affidavit that he was driving at the time of the accident a Chevrolet sedan, motor No. 2484905 and license No. 502025, which automobile and license were purchased by him and he testified likewise at the trial that he purchased the license for the car in his own name and that the car was his personal property. He admitted, however, on cross-examination that the car was purchased by the Eoseland Cab Company and that license No. 502025 was registered in the office of the Secretary of State as the property of the Eoseland Cab Co., and issued for taxicab, motor No. 791079, bond No. T. 13385, which bond was signed by the insurance company. He said that the automobiles were exchanged while he was in the hospital and his testimony regarding the license numbers is not corroborated by any witness. His nephews, witnesses that appeared to have been present, did not notice the license number of either car, nor the time the change was made. These witnesses also varied in their description of the automobiles. Ted saw a gray automobile and Charles a cream and blue automobile. Ted said he delivered the substitute car to the hospital, and then retracted his testimony by saying that he did not go to the hospital.

It is further contended by the plaintiff that although defendant makes the point that plaintiff cannot recover on the policy unless the Roseland Cab Company can recover, the argument is immaterial because the liability of defendant is based upon the identification of the taxicab, license No. 502027, which was insured by defendant, as the taxicab that struck James Hibley.

Subparagraph (2) of par. 59, ch. 95%, Ill. Rev. Stat. orders the owner of a taxicab to provide:

“A policy of insurance in a solvent and responsible company, authorized to do business in the State of Illinois, insuring said owner of said motor vehicle against liability for any injury to or death of any person resulting from the negligence of such owner or his agent, in the operation of such motor vehicle. Said policy of insurance may cover one or more motor vehicles, and shall insure such owner for the sum of two thousand five hundred dollars ($2,500) for one motor vehicle, and for two thousand five hundred dollars ($2,500) additional for each additional motor vehicle covered by the same policy, provided that the maximum payment required of such company on all judgments recovered against an owner hereunder, shall not exceed the sum of two thousand, five hundred dollars ($2,500) for each motor vehicle operated under the provisions of this section; said policy of insurance shall provide for payment and satisfaction of any final judgment rendered against the owner of said motor vehicle for such injury or death, and shall provide that suit may be brought in any court of competent jurisdiction upon such insurance policy by the owner of any such judgment. Said insurance policy shall contain a description of each motor vehicle, giving the manufacturer’s name and number and state license number.”

It appears from this record that Esther Hibley instituted suit at the September term of the superior .court of Cook county in 1940, and judgment was entered in favor of Esther Hibley, administratrix of the estate of James Hibley, deceased, and against the Roseland Cab Company, a corporation, and Lester Cullin, for the sum of $10,000 damages, which was reduced by the court to $5,000 and $30 costs of suit, and execution was issued upon the judgment against the defendant, which was returned by the sheriff “no property found.” The affidavit of the plaintiff avers that the defendant has no property within the knowledge of this affiant but that she has just reason to believe that the Savings Mutual Casualty Company, a corporation, is indebted to the defendant and has effects or estate of the defendant, and summons was issued to the Savings Mutual Casualty Company as garnishee in the proceedings.

This action is in the name of Roseland Cab Company for the use of Esther Hibley to enforce the payment of a $2,500 liability of the defendant under a policy of insurance issued by the defendant Savings Mutual Casualty Company to Roseland Cab Company as required by the Vehicle Act of the State of Illinois, ch. 95½, par. 59, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.057], which makes it unlawful for a cab to be operated without a liability insurance policy or bond amounting to $2,500, and. to have payment under said policy applied toward the satisfaction of the judgment which she obtained against the Roseland Cab Company and Lester Cullin for causing the wrongful death of James Hibley which resulted from the injury sustained by James Hibley when he was struck by a taxicab owned by the Roseland Cab Company.

Evidence was offered in support of plaintiff’s claim, of a photostatic copy of the insurance policy and the' application therefor. Also offered and reproduced in the abstract is a sworn affidavit by Lester Cullin, president of the Eoseland Cab Company, in which he stated that he was the driver of the taxicab which struck and killed the plaintiff’s intestate and that the automobile so driven by him was a 1939 four-door Chevrolet sedan, motor No. 2484905, Serial No. 21 JD 04-21147, and bore State license plate for 1939 No. 502-025. This affidavit, made at a much later date than the time of the accident, and specifying the license number as 502-025, is contradictory of Lester Cnllin’s statement to the police at the time of the accident, and is also contradictory of his testimony before the coroner, in both of which instances he specified the car which he was driving when he struck the deceased as being the one which bore 1939 State license number 502-027. His statement at the time of the accident was also in accord with the testimony of Esther Hibley who was an eye-witness to the accident. No. 502027 is the license on the taxicab upon which defendant issued an insur-' anee policy and bond, which insurance, policy or bond was in full force and effect at the time of the injury to plaintiff’s intestate. •

In attempting to show that the automobile involved in the accident was not covered by said policy it is suggested that the plaintiff on direct examination testified that she could not remember all the parts of the license, but “the last two numbers I remember and it was ’027,” and on cross examination defendant suggests that she testified, “I guess it had six numbers but I could only remember the last two. The fourth one I think was ’2. The last three numbers were ’027. I could not remember the first three numbers.. I have no idea.”

However, it would appear that for the first time, as suggested by the plaintiff, Lester Cullin, who was called as a witness by the garnishee, testified he did not drive any of the business cars of the Eoseland Cab Company the day of the accident; that he got a call that evening and in order to make the trip he used his own personal car hearing license number 502025, and-then describes that it was painted the same color as the cabs but had no business name on it.

So the question of fact was one for the court who was hearing this case, and in passing upon it he would have to consider the credibility of the witnesses as they testified, and also consider what interest, if any, any of the witnesses may have had in the outcome of this litigation. The court reached the conclusion as it appears from this record, that the plaintiff was entitled under the facts as they are established to judgment in this garnishment proceeding.

Among the questions that were called to the attention of the trial court was one in which the defendant contended that the notice of the accident sent to the defendant by the insured, and the statement signed by the insured for the police department, were not admissible in evidence. The defendant in support of its theory makes a point on the law and the ruling of the court on the admissibility of certain evidence and then argues the sufficiency of the evidence. An attack is also made on the credibility of Esther Hibley. However, it appears that the defendant overlooked the identification by Esther Hibley of exhibit 1, later admitted in evidence, and which defendant argues that the court erred in admitting. The identification by Esther Hibley, who was present at the time Lester Cullin made and signed the statement, was sufficient to admit exhibit 1 in evidence. It also appears from the record that the admissions of Lester Cullin are direct evidence and are admissible. The suggestion is made by the plaintiff that the defendant must have deemed the report of Lester Cullin worthy of consideration, beause the defendant ordered its attorneys to make an investigation and to appear at the inquest, and paid for their services. Answering defendant’s argument as to plaintiff’s exhibit 3, plaintiff points oiit that in this case Cullin could not collect from the insurer and was merely putting the insurer on notice of the accident so that the insurer could protect its interest.

In the case of Coulter v. Travelers’ Protective Ass’n, 144 Ill. App. 255, cited by defendant, the court held: that proofs of loss containing answers by a physician, sworn to as true by the beneficiary, are competent against her as admissions against interest. It is a departure from the point for defendant to argue that the notice given defendant by Cullin was not proof of the facts. The court under the facts as they appear in this record was justified in not believing Cullin’s evidence that was changed from his original statements upon the question of his license number of the automobile in question.

When we come to consider the evidence, the sole issue in this case was whether Roseland.Cab Company’s taxicab with 1939 Illinois license No. 502025 or Rose-land Cab Company’s cab with Illinois license No. 502027 was the one that struck James Hibley. There seems to be no dispute that taxicabs with 1939 licenses of each of these numbers were owned by the Roseland Cab Company. The defendant admits in its answers to the interrogatories that the Roseland Cab Company owned taxicabs with 1939 license numbers 502025 and 502027 and that said taxicabs were insured by the defendant, but defendant contends that the bond on No. 502025 expired a month prior to the accident, and it is suggested by the defendant that Lester Cullin was attempting to shift automobiles so that the insurance company would have to pay the damage. It would appear, however, that Cullin’s claim in regard to his ownership of License No. 502025 was a slip in his evidence, that the testimony he gave as to License No. 502025 was an afterthought, and that Cullin forgot that it was issued for a taxicab and not for his private automobile.- Só he evidently was not truthful in making the statement that License 502025 was issued for his personally owned car. It appears from Lester Cullin’s own written statements and affidavit that he was not telling the truth. When the police came he pointed to taxicab No. 502027 as the car involved; he went to the police station two hours later and signed a statement for the police identifying taxicab No. 502027 as the car involved; the next morning he sent his signed statement, plaintiff’s exhibit 3 to the defendant insurance company, stating that the death car was No. 502027; and later Cullin testified under oath at the coroner’s inquest that this taxicab No. 502027 was the car that struck the man. Notwithstanding this sworn testimony Cullin had the effrontery to sweai and did offer evidence on the trial of the instant case that No. 502027 was not the death car, and it would appear that in order to save the defendant $2,500 he forgot that the Eoseland Cab Company owned Illinois license No. 502025. He swore under oath positively that he personally owned the license No. 502025. He was the president of The Eoseland Cab Company and he registered and insured a taxicab with motor No. 791079, license No. 502025, under bond No. T. 13385, yet testified under oath that license No. 502025 was issued to him personally for an automobile with motor No. 2484905; and upon examination testified that the taxicab owned by the Eoseland Cab Company with motor No. 791079 was registered under license No. 502025.

So when we come to consider the evidence as it was presented it is apparent that the court did not err in admitting in evidence the notice of the accident which was sent to the defendant by the insured and the statement signed by the insured for the police department.

Under the circumstances we believe the judgment entered by the court was proper, and it is therefore affirmed.

Affirmed.

Kjley, J., concurs.

Mr. Presiding Justice Burke

dissenting: The plaintiff in this case can recover against the garnishee only if the judgment debtor could have successfully maintained an action against the garnishee. The garnishee denied that it was indebted to the judgment debtor. The right of plaintiff to recover against the garnishee is bottomed on the insurance policy. The burden was upon plaintiff to identify the car that was involved in the accident as the car covered by the policy issued by the garnishee. Plaintiff failed to make this proof. The bond covering Boseland Cab Company taxicab, motor No. 791079, 1939 license No. 502-025, bond No. T-13385, was canceled on April 21, 1939', more than a month prior to the accident. The private car of Lester Cullin which was involved in the accident was not a taxicab and it bore motor No. 2484905. At that time there was attached to Mr. Cullin’s automobile 1939 license plates No. 502-025. There was no competent evidence introduced by plaintiff which connected the automobile involved in the accident with the policy issued by the garnishee to the judgment debtor. I am of the opinion that the court erred in admitting the notice of the accident sent to the garnishee, and also erred in admitting the report of the Accident Prevention Division of the Chicago Police Department. These exhibits could not bind the garnishee. The court should have permitted the garnishee to prove that subsequent to the time Lester Cullin made his proof of loss he was confronted with a charge that the automobile described therein was not in fact the automobile involved in the accident and that the automobile involved in the accident was not the automobile insured by garnishee under any of its policies; that at that time garnishee received an admission from Mr. Cullin that the car described in the proof of loss was not in fact the car involved in the accident and that he stated that this car was in the accident for the sole purpose of getting coverage for that accident, when as a matter of fact it was not covered; that Cnllin then for the first time admitted to the garnishee that the charge was trne and that the automobile involved in the accident was not the automobile insured by garnishee under any of its bonds. The court also should have permitted proof by the garnishee that when the automobile involved in the accident was returned to the garage it was examined; that blood stains were found upon the seat and a dent in the hood; that the automobile was sent to a repair shop where the dent was taken out of the hood, and that an effort was made to remove the blood stains. The evidence shows that after the accident the cars were switched and that the car that was actually in the accident was not covered by any policy issued by the garnishee. My view is that the judgment against the garnishee should be reversed.


source: Caselaw Access Project

author: Mr. Justice Hebel,

license: Public Domain

text:
    Ella L. Stevens, Plaintiff, v. William T. Blue et al., Defendants. Herbert H. Mitchell, Receiver, Appellant. Dorothy Stalzer, Appellee.
    Gen. No. 42,509.

      Opinion filed June 30, 1943.
    Rehearing denied December 8, 1943.
    Stevens & Stevens, of Chicago, for appellant; G-eorge M. Stevens, of Chicago, of counsel.
    Friedlund, Levin & Friedlund, of Chicago, for appellee ; Emil N. Levin, of Chicago, of counsel.
   Mr. Justice Hebel,

delivered the opinion of the court.

It appears from this record that there was an order entered on July 31, 1942 by Judge Gr. Fred Rush, in which the court orders, adjudges and decrees as follows: That Éerbert H. Mitchell, receiver herein, pay to Dorothy Stalzer, the first mortgage holder, within 10 days from the date thereof, the net income from operating and management of the mortgaged property, being the aforedescribed property, from June 4, 1940, the date of the order extending the receivership, to the date thereof; that the report and account filed by Herbert H. Mitchell on April 15, 1942, purporting to be his fifth current report and account, be not approved and said Herbert H. Mitchell, receiver, is ordered and directed to prepare his Report and Account in accordance with the terms of this order, and submit the same to this court within 10 days from the date thereof; that he pay to Dorothy Stalzer from time to time hereafter, all the net income from the operation and management of the said property until July 10, 1943, the date of expiration of the period of redemption, unless said deficiency of Four Thousand One Hundred Twenty-two and 00/100 Dollars ($4,122.00) plus interest, shall be sooner satisfied in full.

Appellant prays that the order be reversed and set aside, and that the cause be remanded with directions to the circuit court to enter an order approving said receiver’s fifth current report and account, or that such order be entered in this court.

Plaintiff, Ella L. Stevens, on February 14,1935, filed her amended complaint in her creditor’s suit against "William T. Blue and Lydia L. Blue, his wife, the equitable owners of the property in question, and others, and on April 5, 1935, Herbert H. Mitchell was appointed receiver of said property and of the rents, issues and profits thereof. On July 8, 1938,' a decree was entered herein directing the receiver to turn over to the attorneys for the plaintiff the net proceeds from such rents and income to be applied upon the payment of plaintiff’s costs in this suit and upon the satisfaction of plaintiff’s judgment in the sum of $18,556.20, with interest at the legal.rate from November 29, 1933.

On April 24, 1940, Dorothy Stalzer filed her complaint in the superior court of Cook county to foreclose her first mortgage trust deed, in which complaint she prayed for the appointment of a receiver “for the mortgaged premises and of the rents, issues and profits thereof.” Without notice to plaintiff or to the receiver theretofore appointed by the circuit court, a receiver was appointed by the superior court of the mortgaged premises and of the rents, issues and profits thereof.

On motion of Herbert H. Mitchell, circuit court receiver, said receiver appointed in the superior court case was discharged and said cause transferred to the circuit court as Case No. 40 C 4912.

Thereupon said Dorothy Stalzer filed her intervening petition in this cause, asking for an order vacating or modifying the order theretofore entered herein appointing Herbert H. Mitchell receiver, for his removal as such receiver, and for the impounding o.f the refits, issues and profits for her benefit, setting up, among other things, that “unless the rents, issues and profits from the mortgaged premises described in trust deed held by petitioner are sequestered and applied on account of the payment of taxes and the indebtedness due petitioner, petitioner will suffer irreparable injury,” and praying that “the rents, issues and profits of the mortgaged property be sequestered and preserved for the use of petitioner and other parties in interest, in accordance with the terms of the trust deed held by petitioner.” The relief, so prayed for by Dorothy Stalzer was denied by the court, which after full argument by counsel as to the comparative equities of the parties, entered an order extending the receivership as to the mortgaged premises only, and not as to the rents, issues and profits thereof, as in its discretion it well might have done, had it believed that it was equitable so to do. This order, entered June 4, 1940, was, in part, in words and figures as follows:

“On motion of Marston, Friedlund & Friedlund, attorneys for Dorothy Stalzer, petitioner, upon due notice, and upon consideration' of verified petition of Dorothy Stalzer, and argument of counsel, it is Ordered, Adjudged and Decreed as follows:
“That the petition of Dorothy Stalzer to remove Herbert H; Mitchell as receiver of the mortgaged premises be, and the same is hereby denied without prejudice to petitioner to renew such a motion.
“It is further ordered that the receivership, insofar as it appertains to the mortgaged premises (here follows description of the property), be and the same is hereby extended to and for and on behalf of Dorothy Stalzer, petitioner, . . . with the same -force and effect as if a receiver had been appointed in said Circuit Court Case No. 40 C 4912.
“That Marston, Friedlund & Friedlund, attorneys for Dorothy Stalzer, shall receive notice of all proceedings had and taken herein, insofar as they relate to the receivership of the mortgaged property herein described.”

In petitioner Stalzer’s foreclosure suit, the master sold the premises in question pursuant to foreclosure decree, filed his report of sale and distribution and on April 28,1942, an order was entered in said foreclosure proceeding approving the master’s report and finding that there was a deficiency due the plaintiff, Dorothy Stalzer, in the sum of $4,122.04, but no deficiency decree or judgment was entered on such finding.

On or about April 6, 1931, the Blues executed the notes in question totaling $10,000, four in the sum of $500 each, maturing one, two, three and four years after date respectively, and one in the sum of $8,000, maturing five years after date, with interest until maturity at 6 per cent per annum, and with interest after maturity at 7 per cent per annum, and secured by the trust deed sought to be foreclosed.

The court, under the circumstances saw fit, in the exercise of its equitable discretion, to deny Dorothy Stalzer’s petition and prayer to have the rents, issues and profits of the mortgaged premises sequestered and preserved for her use, and left its decree directing the receiver to pay the same to the plaintiff in her creditor’s suit unchanged and in full force and effect, and extended the receivership to and for and on her behalf, merely as to the mortgaged premises, and not to the rents, issues and profits thereof.

It is submitted by Dorothy Stalzer, the intervening petitioner, that the first mortgagee’s rights were not, and could not be affected by any decree entered in a prior creditor’s suit to which the first mortgagee was not a party. On this subject petitioner calls to this court’s attention the case of Goldberg v. Hoffman, 262 Ill. App. 112, where this court speaking through Mr. Justice Kerner said:

“The lien of the complainant (appellant), second mortgagee, on the rents was always subject to the prior lien, pledge and conveyance thereof evidenced by the first mortgage. Any exclusive right that the appellant had to rents through the appointment of a receiver at his instance is predicated not on his second mortgage contract but on his superior diligence. Such exclusive right continues, of course, only so long as the prior mortgagee refrains from asserting his prior right.”

It is suggested also that the first mortgage holder asserted her prior right by procuring the extension of the receivership and gave due notice to the receiver and all parties in interest of her paramount claim to the rents. From the date of the extension of the receivership the judgment creditor was no longer entitled to the funds to be collected by the receiver. The receiver became bound to collect and hold funds until the court would direct him as to the distribution thereof. (Reeve on Mortgages, vol. 2, page 633; Cross v. Will County Nat. Bank, 177 Ill. 33.)

In 95 A. L. R., at page 1068, it is stated:

“It seems that it is not necessary, in order that a senior mortgagee intervening and filing a cross-complaint in proceedings for foreclosure of a junior mortgage may be entitled to priority in the distribution of rents and profits collected by a receiver previously appointed in the act, that the senior mortgagee specifically pray that the receiver be required to hold the rents and profits for his benefit, the receiver being bound as an officer of the court to hold the rents and profits for 'the benefit of all parties interested in the action.”

It appears too from the statement of petitioner that the first mortgage holder secured a decree in her foreclosure suit, to which Ella L. Stevens, the judgment creditor, was a party, finding that the mortgage was a first, prior and paramount lien on the mortgaged premises, and the rents, issues and profits therefrom. This decree was affirmed by the Appellate Court and leave to appeal denied by the Supreme Court'.

It should be noted that a substantial portion of the moneys held by the receiver were collected during the period the foreclosure sale was delayed on account of the appeal taken by Ella L. Stevens. The same attorney who acted in the appeal for Ella L. Stevens is now prosecuting this appeal on behalf of the receiver.

It is suggested by the petitioner that it is to be noted that although the brief is filed on behalf of Mitchell, the receiver, who presumably is disinterested as to application of income, it actually is an argument on behalf of Ella L. Stevens, and was prepared and filed by her attorney. Its principal contention is that Ella L. Stevens, the judgment creditor, has a prior claim to the net income over Stalzer, the first mortgage holder. It is further suggested by the petitioner that she questions the propriety of the receiver in perfecting this.appeal and arguing the case on behalf of a junior creditor against a senior creditor; that it is conceded that in certain cases a receiver has an appealable interest (orders affecting settlement of his accounts), but it is questioned whether this is such a case. (Yoelin v. Kudla, 302 Ill. App. 412.) The receiver was an office associate of George M. Stevens, his attorney who is a cousin of the mortgagor and .the son and attorney for the judgment creditor. The petitioner makes a charge in Stalzer’s original intervening petition wherein it was alleged that the creditor’s suit was a collusive suit to defraud creditors and that Herbert H. Mitchell, George M. Stevens ’ colleague was interested in the litigation and therefore wholly unfit to act as receiver.

The receiver answers the petitioner that it is true that the first mortgagee’s rights were not affected by the decree entered in the prior creditor’s suit, to which she was not a party, but while her mortgage or trust deed gave her a prior lien on the premises involved, such fact did not prevent plaintiff’s subsequent lien from acquiring priority as to the rents, issues and profits thereof, and cites 4 A. L. R., p. 1410:

“A provision giving the mortgagee a lien on such rents and profits and authorizing the mortgagee to take possession in case of default, and collect and receive the rents and profits, does not vest such rents and profits in the mortgagee without action on his part. This is true even as to rents and profits accruing after a default, ....
“Before any action is taken to obtain possession of the rents and profits, a creditor may obtain a lien thereon by judicial process, which is superior to that of the.mortgagee.”

A recent Illinois case very definitely holding to the above enunciated rule, is that of Fidelity Trust & Savings Bank v. Ahlgrim, 278 Ill. App. 147, wherein at page 151, the court, speaking through Mr. Justice Wilson, said:

“The original owner of the equity and the mortgagor having, however, mortgaged the rents, issues and profits in the instrument bn which the bill of complaint is based, has granted to the mortgagee a right which he can enforce in a court of equity and the only way in which this can be done is by the conrt decreeing the payment of the rents, issues and profits during the period of redemption to the mortgagee until the deficiency has been exhausted or the period of time has elapsed.”

It appears from the receiver’s brief that petitioner Dorothy Stalzer recognized the above rule and appreciated full well the necessity of compliance with it, for she not only in her bill to foreclose her trust deed lien prayed that-a receiver be appointed of the mortgaged premises and of the rents, issues and profits thereof, but in her intervening petition filed herein on June 4, 1940, prayed that the rents, issues and profits of the mortgaged property be sequestered and preserved for her use.

On May 20, 1942 Dorothy Stalzer filed her verified petition alleging that a decree of foreclosure had been entered in the foreclosure suit; that there was due her under the decree the sum of $11,937, etc., that the decree provided that she had a prior lien on the mortgaged property and the rents, issues and profits thereof; that in accordance with the terms of the decree of foreclosure the master sold the mortgaged premises, filed his report of sale and distribution; that the circuit court had entered an order approving the master’s report of sale and distribution and that under the master’s report of sale and distribution and the order approving the same the master reported and the circuit court found there was a deficiency due Dorothy Stalzer in the sum of $4,122.00; that the receiver’s report, to and including March, 1942, showed the receiver had oh hand $2,214.49 as net income from the mortgaged property from the date of the order extending the réceivership.

The first mortgage holder contends that- by reason of, first, the extension of the receivership and, second, the decree finding the mortgage to be a valid, prior and paramount lien on the mortgaged property and the rents, issues and profits thereof, the master’s report of sale and the order approving the same showing a deficiency of some $4,000, that she is entitled to the net income collected by the receiver from the date of the extension of the receivership until the deficiency is satisfied.

In examining the report that was filed by the master it is interesting to note what was said by this court in the case of Eglin v. Glatz, 287 Ill. App. 44:

.“Appellants Conrad and Emma Glatz, and cross appellant, Catherine I. Eglin, also appeal from thé findings in said decree that appellee, Bernard Graliker, did not assume the payment of the mortgage indebtedness. An appeal will not lie from a finding or conclusion, either of law or fact, not accompanied by any final judgment or decree, and there can be no personal decree until there is a judicial determination of the amount due. Thomson v. Black, 208 Ill. 229, 70 N. E. 318; Eggleston v. Morrison, 185 Ill. 577, 57 N. E. 775.
“Appellants also insist that the conditional decree rendered wherein it was adjudged that they were personally liable for the payment of the debt secured by the trust deed and were decreed to pay the plaintiff the amount of any deficiency with interest was erroneous. This is not a final judgment from which an appeal may be taken. In the case of Eggleston v. Morrison, supra, it is said in speaking of a similar decree: ‘This decree lacks all the forms of a personal decree for the payment of money, and no action could be brought upon it. Whether anything, or how much, will ever be due from the defendants is unknown. It has never been judicially determined that there is, or will be, any balance of money due over and above the proceeds of the sale. Unless a decree should be rendered against the- defendants in the future, they will be entirely unaffected by the interlocutory finding or conclusion of the court that they will be liable for a deficiency in case it shall exist.’ The decree does not purport-to be a final decree for any definite or specified sum. It does not appear from tbe terms thereof that it has ever been determined, judicially or otherwise, that there is any balance of money due the complainant. It is lacking in the essentials of a judgment or personal money decree in chancery and is not such a judgment or decree.” Cotes v. Bennett, 183 Ill. 82, 55 N. E. 661.

From the order that was entered it does not appear that the defendants are named who are liable for this deficiency that is the subject matter of this suit, and the question, of course, would be whether the receiver would be justified in paying the rents, issues and profits to Dorothy Stalzer. While the order does find that on February 27,1941, a final decree was entered in the foreclosure proceeding finding that the notes and trust deed were good and valid and the lien upon the mortgaged property and the rents, issues and profits' thereof was prior and paramount to the claim of Ella L. Stevens and other persons and that thereafter the premises were sold by the master in chancery and a deficiency was entered by the court in favor of Dorothy Stalzer in the sum of $4,122 plus interest, it is noted that the defendants who are subject and liable to this deficiency are not mentioned in the order that was entered and from which the receiver appeals.

As suggested in the briefs of the receiver, the findings of a court correspond to the verdict of a jury and determine nothing until followed by adjudication in the ordering part of the decree, and, as we have already indicated, there is here merely a, finding that there was a deficiency due Dorothy Stalzer in the sum of $4,122.04, and it does not appear from the record that a decree was ever entered on that finding, and under the rule of law above set forth such finding determines nothing until followed by adjudication in the ordering part of the decree.

A case was cited which is helpful upon this question, entitled Chechik v. Koletsky, 305 Ill. 518.

It is clear from the order of June 4, 1940, that the chancellor did not grant Dorothy Stalzer’s prayer for sequestered rationing of the rents, issues and profits and that he extended the receivership only to the corT pus of the property. The order, accordingly, continued in effect the duty of the receiver to continue applying the income according to the terms of the decree of July 8, 1938. The foreclosure decree did not increase Dorothy Stalzer’s rights retroactively, but only from its entry. The lien granted her in the trust deed required action for its enforcement (Fidelity Trust & Savings Bank v. Ahlgrim, 278 Ill. App. 147) and until enforced plaintiff’s rights to the income under the decree were unaffected.

Under the facts and the law, the order entered on July 31, 1942, ordering that the receiver herein pay to Dorothy Stalzer the net income from the property involved, is reversed, and the cause is remanded to the circuit court with directions to enter an order approving the receiver’s fifth current report and account filed on April 15, 1942 and which shows the payment of $2,000 to Stevens & Stevens, successors to Stevens & Carrier, attorneys for Ella L. Stevens, plaintiff, to apply in satisfaction of her judgment, pursuant to decree and order of the court, together with the sum of $200 receiver’s fees paid to himself and $200 to O. A. Eawlins, agent’s commission for handling said property.

Reversed and remanded with directions.

Burke, P. J., and Kiley, J., concur.


author: Mr. Presiding Justice Culbertson

text:
    Nick Vladoff, Appellant, v. Illinois Bankers Life Assurance Company, Appellee.
    Opinion filed October 30, 1943.
    Beasley & Zulley and Philip G. Listeman, all of East St. Louis, for appellant.
    Oliver J. Miller and Lashly, Lashly, Miller & Clifford, all of St, Louis, Mo., and Norman J. Gundlach and Kramer, Campbell, Costello & "Wiechert, all of East St. Louis, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the city court of East St. Louis, in favor of the defendant appellee, Illinois Bankers Life Assurance Company, a corporation (hereinafter called defendant), and as against plaintiff appellant, Nick Vladoff (hereinafter called plaintiff).

The action arose as the result of a suit upon a policy of insurance in the defendant company, by the plaintiff, to recover accident disability benefits at tbe rate of $60 per month (not exceeding five years), on an accident insurance policy issued to him by tbe defendant. Tbe cause was beard by tbe trial court, and without a jury, and after a bearing, judgment was entered for defendant and against plaintiff, for costs. Plaintiff prosecutes this appeal.

Tbe evidence and tbe pleadings in tbe cause disclose that an accident insurance policy in tbe defendant company was sold to plaintiff on September 23, 1935, and that plaintiff bad paid tbe monthly premium to tbe agent who sold him tbe policy and who bad prepared tbe application a few days before that date.' On October 9, 1935, plaintiff sustained certain accidental injuries when be was thrown down on a streetcar and fell on bis back and struck bis bead against tbe car steps and platform. It was contended that tbe plaintiff became totally disabled as the result of such accidental injuries and has remained so ever since such date. There was evidence of extensive treatment after tbe time of tbe accident, and of inability of plaintiff to do manual labor or labor as a bartender (as be was engaged prior to tbe time of tbe accident).

In tbe application for insurance, which was signed by tbe plaintiff, tbe written answers indicated that plaintiff was never operated on, except for appendicitis, and bad never suffered from any of a number of diseases listed in tbe application, and bad not received other medical or surgical attention within tbe last ten years, and bad never bad any other accidents. Evidence produced at tbe trial indicated that such answers were untrue, and that plaintiff bad suffered and was suffering from a variety of diseases; that be bad suffered other injuries and accidents; and that be bad been operated upon on three occasions, for kidney stones, for removal of tbe gall bladder, and for other conditions.

It was the contention of the defendant company, substantially, that plaintiff was not entitled to recover for two major reasons (First) That his disability or present condition did not arise out of the streetcar accident in October of 1935; and (Second) That the policy upon which the action is predicated did not become effective because plaintiff had failed to disclose his previous medical history. It was the contention of defendant company that there were misrepresentations of material facts in the application for insurance and, that therefore, a policy issued in reliance upon such misrepresentations could be avoided. Plaintiff had contended that because the agent of defendant made out the application, and by reason of the fact that plaintiff was not able to read and had no knowledge of what answers were written in the application by the agent, that such statements could not operate to avoid the policy. Other grounds are likewise urged by plaintiff in this ease.

One of the substantial issues in the case was whether or not the disabilities of which plaintiff complained, were the result of the accidental injuries sustained a short time after the policy was in force. There was a great deal of documentary evidence, consisting principally of hospital records, which disclosed that plaintiff had been suffering for a number of years with some of the same complaints which he asserted in this action were caused in the streetcar accident. There was, therefore, a question of disputed fact to be decided by the court. From the record there was evidence to indicate that the disabilities which plaintiff contends were caused as the result of the streetcar accident might not have been so caused.

The findings of the trial court in a case tried without a jury, are binding on the Appellate Court, unless such findings are clearly and manifestly against the weight of the evidence. They are entitled to the same weight as the vérdict of the jury (Woerter v. Mahler, 314 Ill. App. 324), and, if there is substantial evidence to support the findings of the trial court, such findings will not be disturbed, even though, on a review of the evidence, this court might be disposed to come to a contrary conclusion (Chamblin v. New York Life Ins. Co., 292 Ill. App. 532).

In view of the state of the proof in the record in this -cause it cannot be stated that the conclusion of the trial judge is manifestly or palpably against the weight of the evidence. Under such circumstances the judgment of the city court of East St. Louis should be affirmed.

In view of the conclusion of this court that the decision of the court below should be affirmed on the basis of the evidence in the record as herein stated, it is unnecessary that we discuss the other grounds urged as a basis for the affirmation of such judgment.

The judgment of the city court of East St. Louis is, therefore, affirmed.

Judgment affirmed.


text:
    Elva Paschall, Appellee, v. Dennis Reed, Administrator of Estate of Oren Coleman, Deceased, Appellant.

      Opinion filed October 30, 1943.
    E. E. Denison, of Marion, for appellant.
    D. L. Duty, of Marion, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Williamson county, Illinois, in the sum of $4,750, in favor of appellee, Elva Paschall (hereinafter called plaintiff), and as against appellant, Dennis Reed, as administrator of the estate of Oren Coleman, deceased (hereinafter called defendant).

The action originated in the county court of Williamson county, acting in probate, in which plaintiff filed a claim recited to be for money deposited with Oren Coleman and in which claim plaintiff contends that she was entitled to the' sum of $4,750. The case was tried by a jury in the probate court, and a verdict was there returned in favor of the defendant. Plaintiff appealed to the circuit court where the case was again tried. In the circuit court the jury returned the following verdict, “We, the jury, find the issues in this case for the plaintiff, Elva Paschall, and we assess plaintiff’s damages at $1,000.00.” The only evidence of the amount of money delivered or deposited with Oren Coleman in his lifetime, the amount of which was to be returned to plaintiff, was $4,750. At the close of all the evidence plaintiff filed a motion for judgment notwithstanding the verdict, and in the alternative, for a new trial. Defendant had filed a motion for a directed verdict, and thereafter filed a motion for judgment notwithstanding the verdict and for new trial, and the court below denied defendant’s motion for judgment notwithstanding the verdict and motion for new trial, and allowed plaintiff’s motion for judgment notwithstanding the verdict and entered judgment in favor of plaintiff in the sum of $4,750.

The facts, as disclosed by the evidence, indicate that plaintiff, together with her mother and another elderly lady who was a close friend of her mother, testified that about a month before Oren Coleman died they went with plaintiff to a bank at Carterville, of which Coleman was the president, and that plaintiff left-with the deceased Coleman, for safekeeping, the sum of $4,750, which was counted out in the presence of all of the parties. There was some corroborating evidence that Coleman had the money in a large brown envelope which he showed to a sister-in-law of plaintiff a few days before he died, upon which was written the name of plaintiff and the figures “$4,750.” On November 1, 1939, Coleman died suddenly while seated in his automobile parked in front of the bank. No papers relating to the claim of plaintiff and no specific envelope containing $4,750 was found either on his person or in any of his personal belongings. There was some evidence of an indebtedness of plaintiff to the bank and of the assertion of plaintiff’s claim, which it is not necessary to discuss for the purposes of this opinion. On November 6, 1939, Dennis Reed was appointed as administrator of the estate of the deceased Coleman. He found, two notes for $150 each, signed by the plaintiff, among the effects of the deceased, and sent notice to plaintiff that he held the notes and requested payment of such notes. In May of 1940, she came to see the administrator and did not deny that she owed the notes. She advised the administrator that Coleman was indebted to her, but did not state the exact sum at such time. On October 21, 1940 (before the expiration of a year from the time of the appointment of the administrator in the estate, but after a period of nine months expired from such time and from the first day of January, 1940) plaintiff filed the claim involved in this action.

Defendant relies for reversal upon the contentions that the court erred in granting plaintiff’s motion for judgment notwithstanding the verdict and in entering-judgment for $4,750, because of plaintiff’s failure to ask for a directed verdict at the close of all the evidence ; that the court had no jurisdiction to try the claim which was based on a-gratuitous bailment for the sole benefit of the bailor; that the claim of plaintiff was not filed in the county court of Williamson county within nine months from the time of the appointment of the administrator and was therefore barred by the statute; that the claim necessarily involved a question of defendant’s negligence, which is a tort action, of which neither the probate court nor the circuit court on appeal from a claim filed in the probate court, has jurisdiction; that the claim, being based on a gratuitous bailment, was contingent on due proof of negligence, and being so contingent was not provable in the probate court; and, likewise, contends that the court erred in the .admission and exclusion of evidence and in the giving of certain instructions on behalf of the plaintiff, and in the refusal of other instructions requested by defendant.

No useful purpose would- be served by discussing in detail all of the contentions set forth in the voluminous brief of defendant, or in discussion of the instructions to which reference is made, which we do not believe constitute reversible error in view of all the facts and circumstances in the case.

Primarily, all of the contentions made with respect to the character of the claim as being contingent, or based on a tort by reason of involving a bailment for the sole benefit of the bailor, is not sustained by the evidence. The claim, under the evidence, constituted merely a claim in the nature of money had and received by the deceased, Oren Coleman, for use of plaintiff so as to create the relationship of debtor and creditor. There was no contention that the exact identical bills be returned to plaintiff.

As to the contention that the claim was not filed in time, the saving clause of the Probate Act, which became effective January 1, 1940 (Ill. Rev. Stat. 1941, ch. 3, sec. 501 [Jones Ill. Stats. Ann. 110.598]) in specifically providing that the provisions for repeal contained in the act, should not in any way affect any claim, right, or remedy accruing under any law in force prior to the effective date of the act, preserved to plaintiff the period of time previously specified in connection with the filing of claims as to the estate of the deceased Coleman, which was probated prior to the effective date of the act (see In re Estate of Wynn, 311 Ill. App. 190; Hathaway v. Merchants’ Loan & Trust Co., 218 Ill. 580). We do not believe the contention of defendant that the claim of plaintiff did not “accrue” until after January 1, 1940, so as to make the saving clause inapplicable, is either sound or justified by any interpretation of the act, or the law of this State. The claim filed by plaintiff was not barred by virtue of having been filed within one year of the time of the probate of the Coleman estate.

The contention made by defendant that the witnesses who testified for the plaintiff were disqualified because they were sureties on the bond of plaintiff, in which she appealed from the county court to the circuit court, is likewise unsound. Defendant insists that such witnesses are disqualified because they might become directly liable for costs.. It has been repeatedly held by courts of review of this State that the interest which will disqualify a witness to testify in a suit involving an administrator must be legal, certain, and immediate interest, and such interest must be direct, certain, and vested. Otherwise it does not disqualify him and the interest in such event goes only to the credibility of the witness and not to the competency of such witness (Stephens v. Hoffman, 263 Ill. 197, 202; Bellman v. Epstein, 279 Ill. 34, 37). It was not certain that pláintiff would be required to pay costs even though judgment should have gone against her on her claim and such judgment would not thereby have become a direct obligation of the sureties, but would have been the obligation of plaintiff alone. There was, therefore, no direct liability upon such persons and they were clearly competent witnesses to testify in this cause.

A number of cases have been cited by both plaintiff and defendant to the effect that where a verdict is inconsistent with any legitimate theory of the evidence and cannot be accounted for, except as the result of compromise, it should be set aside (Albert Schwill & Co. v. Moulton, 168 Ill. App. 519; Galomopoulos v. Petropoulos, 147 Ill. App. 1; Conrad Seipp Brewing Co. v. Peck, 85 Ill. App. 637). It is clear, under such circumstances, that a new trial would be justified. In the instant case it is conceded by both parties that plaintiff is entitled to a judgment for $4,750, or is not entitled to a judgment for anything, in view of the fact that the sole evidence of the amount delivered to defendant was, as indicated, to the effect that $4,750 had been delivered to the deceased. The verdict of the jury in the circuit court recited specifically that the issues were found in favor of plaintiff and the sole difficulty with the verdict, considering all the evidence, was that it was wholly inadequate. We are satisfied that under the provisions of Ill. Rev. Stat. 1941, ch. 110, pars. 192 and 259.22 [Jones Ill. Stats. Ann. 104.068 and 105.22], plaintiff was entitled to present a motion for judgment notwithstanding the verdict so that the amount of the verdict might be in accordance with the positive, direct and undisputed evidence in the case.

When both defendant and plaintiff filed motions for judgment notwithstanding the verdict the trial court was presented with the issue and had a right to determine, as a matter of law, whether, in view of the undisputed evidence, plaintiff was entitled to receive the full amount of the claim in accordance with the evidence (Kanne v. Metropolitan Life Ins. Co., 310 Ill. App. 524; Bituminous Cas. Corp. v. City of Virginia, 314 Ill. App. 238).

We have reviewed the evidence in this cause carefully and are convinced that, as a matter of law, no defense to claim of plaintiff is presented by defendant, nor is there any disputed question of fact from which a jury would be justified in rendering a verdict for the defendant, viewing all the evidence in the cause most favorably for the defendant (without attempting in any manner to weigh the evidence). It is significant that the factual finding of the jury was in favor of plaintiff. The amount of the verdict was not consistent with any of the evidence in the cause, but we do not believe that the power of the trial court to enter judgment in favor of plaintiff, notwithstanding the verdict of the jury, is reduced in any respect by reason of the fact that the jury for some inexplicable reason assessed the amount of plaintiff’s damages improperly.

We believe that the circuit court of Williamson county properly allowed plaintiff’s motion for judgment notwithstanding the verdict, and that the judgment of the circuit court of Williamson county should be affirmed.

Judgment affirmed.


text:
    Leonard Weill et al., Trading as Goodwill Service Station, Appellees, v. Centralia Service and Oil Company and Earl Swagler, Appellants.

      Opinion filed October 30, 1943.
    Hugh Y. Murray, Jr. and Wham & Wham, all Of Centralia, for appellants.
    John L. Kagy, of Salem, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment for $252.86, rendered in the circuit court of Marion county, Illinois, in favor of Leonard Weill, Flora Oakes and Paul S. Gorman, partners, doing’ business as Goodwill Service Station, plaintiffs appellees (hereinafter referred to as plaintiffs), and against defendants appellants, Centralia Service and Oil Company, a corporation, and Earl Swaglér (hereinafter referred to as defendants), and in which said proceeding the court dismissed a counterclaim filed by the defendants herein. We are asked to review not only the action of the court in entering judgment for plaintiffs, but also to review the action of the court in dismissing the counterclaim.

This case was commenced as a suit at law to collect the monthly instalment of rent under a lease. By amendment to the complaint, reformation of the lease was sought and the cause was transferred to the chancery docket and heard as a case in chancery. No complaint is made that the court committed error in reforming the lease, as both plaintiffs and defendants appear satisfied with the action of the court in that regard. The case was tried upon the amended complaint and the answers thereto, and the counterclaim and the answers thereto. The amended complaint was filed by four partners doing business as Goodwill Service Station, and against Centralia Service and Oil Company, and Earl Swagler. It alleges the execution of a lease on June 4, 1937 between the plaintiffs and Anne L. Lopez, as lessors, and Earl Swagler, as lessee, covering two gasoline service stations, located in Sandoval and Carlisle. The amended complaint further alleges that pursuant to the provisions of the lease, the sum of $2,500 was deposited by Earl Swagler with plaintiffs; that through a mistake of the scrivenor in reducing the oral agreement of the parties to writing, the actual agreement was not properly expressed, and that the agreement should have provided that' upon the default in the payment of instalments of rent for three months the deposit of $2,500 should be forfeited to “lessors,” instead of “lessee” as set forth in the written lease.

The amended complaint alleges that Earl Swagler entered into possession of the demised premises and continued in the possession thereof until the month of January 1942; that on December 16, 1941, Earl Swagler, with the consent of plaintiffs, assigned the lease to Centralia Service and Oil Company and at that time, by agreement, the deposit was reduced from $2,500 to $1,741.42; that thereafter, in January 1942, Centralia Service and Oil Company entered into possession of the premises and paid the monthly instalments of rent until April 1, 1942; that the monthly instalment of rent due for the month of April 1942 was not paid. The prayer of the complaint is that the lease be reformed to change the word “lessee” to “lessor” and for judgment.for the rent due for April 1942.

The defendant Swagler, by his answer, denied the material allegations of the complaint, and alleged that according to the agreement and terms of the lease, when he or his assigns, failed to pay the rentals as provided therein, for a period of three months, the lessors became entitled to the deposit and the lease thereupon terminated and he and his assigns were relieved from any further obligations thereunder. The defendant Centralia Service and Oil Company filed its answer denying the material allegations , of the amended complaint, and alleging, affirmatively, substantially the same matters of fact as were set forth in the answer of defendant Swagler.

The defendants also filed a counterclaim, alleging that in compliance with the terms of the agreement, Swagler deposited with plaintiffs the sum of $2,500, which was thereafter reduced by agreement to the sum of $1,741.42,- that according to the terms of the oral agreement, had at the time the lease was entered into, in the event of a default in the payment of monthly rentals for three successive months, the lease terminated as to both parties, and lessors became entitled to retain the money so deposited. The prayer of the counterclaim is that the agreement be reformed so as to express this intention of the parties, if such reformation is, in fact, necessary. The counterclaim also prayed that it be adjudged and decreed, that said lease provides that upon default in the payment of the monthly rental therein prescribed for a period of three successive months, that it should be terminated; that the plaintiffs should retain said sum so deposited with them as their property; and that the defendants should be forever released and discharged of and from any and all obligations undertaken by the lessee in said lease. To the answers and counterclaim plaintiffs filed replies and answers denying the material allegations, thereof.

The lease executed on June 4, 1937, which appears in evidence contains, with others, the following- provisions: “The party of the second part, as lessee, to secure the payment of said sum of money and to further secure thé performance of his agreements herein-above contained, agrees to deposit with the lessors the sum of $2500.00 in cash, said sum to be held by said lessors until the termination of this lease; said lessors to pay lessee 4% interest annually on said sum, said sum of 4% to be paid semi-annually and to be deducted from the rent paid by lessee to lessors in the months of December, 1937, and June, 1938, and in similar months in each succeeding year thereafter; it being further agreed between the parties that the said lessee shall, if he fails to make the monthly payments of rent hereinabove provided for, for three successive months, he shall forfeit the said sum of $2500.00 to said lessee and said leaseoshall terminate.” The construction of this .provision in the lease is decisive of this case.

The evidence produced on the hearing of this cause without question establishes the execution of the lease and its subsequent assignment. There was also introduced in evidence certain conversations that occurred at the time of the execution of the lease, as to what was intended by the provision in said lease now under consideration. Most of the evidence produced in the trial of this cause is uncontradicted, and the allegations in the complaint as to what occurred between the original lessor and lessee after the lease had been executed and up until the time and after its assignment, as such allegations are set forth in the complaint, can fairly be said to have' been proven by the evidence produced on the hearing. "When the judgment was entered in favor of plaintiffs in this case, more than three months’ rent was in arrears. We are squarely confronted with the proposition as to whether or not the provision in the lease, called in question by this appeal, is such a provision as needs interpretation, or whether or not the words 'employed have a definite and precise meaning and need no interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation (Chicago Home for Girls v. Carr, 300 Ill. 478, 485; City of Beardstown v. City of Virginia, 76 Ill. 34, 40; Rothschild v. New York Life Ins. Co., 97 Ill. App. 547, 554).

Our courts have passed upon the meaning of the word “shall” in its common and ordinary meaning, and have held that the word “shall” has always a pre-emptory, imperative, compulsory and mandatory sense, as opposed to a permissive sense, and when employed with reference to a right or benefit to anyone, which right or benefit depends on giving a mandatory meaning to the word, it cannot be given a permissive meaning (Clark v. Patterson, 214 Ill. 533, 539; Northwestern Traveling Men’s Ass’n v. Crawford, 126 Ill. App. 468, 480; Belleville Savings Bank v. Schrader, 214 Ill. App. 388, 392).

The word “terminate”.employed in connection with a lease, connotes a conclusion and severance of the relationship of landlord and tenant prior to the expiration of the term of the lease by the efflux of time (Stuart v. Hamilton, 66 Ill. 253, 255).

The plaintiffs herein contend that the lessee cannot avail himself of his own act to vacate the lease in question and urge that it has been so ruled on the principle that no man should be permitted to take advantage of his own wrong. With this wholesome pronouncement we find ourselves heartily in accord, but in this case it is urged by the defendants herein that the action taken by -them in failing to pay the rent for three months brought the contractual relationship, created by the lease, to a termination by the provisions of the lease itself. A fair and candid consideration of the evidence produced is very persuasive in convincing us that the parties to this lease considered and understood, when it was made and executed, that the deposit put up would belong to the lessors if there was a failure on the part of the lessee to pay rent for three months. We are of the opinion that the failure of the lessee, or his assignee in this case, to pay rent for three months brought about the termination of the lease and that the lessee, and his assignee, has a right to so contend. In construing this lease we must enforce it in accordance with its plain language, regardless of the construction placed upon it by the parties, as construction by the parties is considered only where the language is ambiguous (Young v. Illinois Athletic Club, 310 Ill. 75). We do not perceive any ambiguity in this case.

It is our opinion the trial court should not have entered judgment in favor of the plaintiff for $252.86, and that the court also committed error in dismissing the counterclaim. This case is, therefore, reversed and remanded, with directions to enter a decree in favor of counterclaimants, terminating their lease as prayed for in their counterclaim, which relief, we hold, they are entitled to under the law and the evidence in this case.

Reversed and remanded, with directions.


text:
    First National Bank of Marissa, Illinois, Appellee, and Lena Heintz et al., Appellees, v. Charles Heintz, Sr., Appellant.
    Opinion filed October 30, 1943.

      Karns & Bandy, of Bast St. Louis, for appellant.
    House & House, of Nashville, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from that part of a decree of the circuit court of St. Clair county which held that the judgment of Oakdale State Bank, one of the appellees (hereinafter called “The Bank”), was a third lien against the mortgaged premises of appellant, Charles Heintz, Sr. (hereinafter called defendant).

The facts disclose that the Bank recovered its judgment against defendant in the circuit court of St. Clair county on July 11, 1941. Appellant was adjudicated a bankrupt on July 25, 1941 and was discharged in bankruptcy on September 22, 1941. At the time of the filing of the petition in bankruptcy the defendant owned certain real estate, which was subject to a mortgage. On November 19, 1941, the holder of the mortgage filed its complaint to foreclose the mortgage and named as a defendant, the Oakdale State Bank, as a judgment creditor. The Bank filed an answer setting up the allegations relating to its judgment. The master in chancery, before whom the evidence was taken, held that a mechanic’s lien was a first lien upon the mortgaged premises and that certain other judgments were second liens, and that the judgment of the Oak-dale State Bank was a third lien thereon. Objections were filed by defendant to those findings, which were overruled, and exceptions relating thereto were, likewise, overruled in the circuit court. A decree was entered in the circuit court on November 24, 1942 holding that the mechanic’s lien and judgments were liens against the mortgaged real estate, inferior to the mortgage lien, and directing the master in chancery to sell the premises and marshal-the proceeds of the sale. On sale the premises brought a sufficient amount to pay the mortgage lien and the mechanic’s lien, and left a balance of $898.67, which was ordered paid to the defendant to apply on his homestead exemptions. The only part of the final decree appealed from in this proceeding is that part which holds that the Oakdale State Bank judgment constitutes a third lien against the mortgaged premises.

The sole contention of the defendant appellant is that the lien of such judgment was lost by the judgment creditor by reason of failure to have execution issued on the judgment within one year of its entry,' even though the judgment debtor and judgment creditor were parties to a suit filed and at issue within one year from the date of the judgment, wherein one of the issues of such suit was whether the judgment constituted a lien, agáinst the real estate involved in the proceedings. The contention of the defendant is based upon the statutory provisions of Ill. Rev. Stat. 1941, ch. 77, sec. 1 [Jones Ill. Stats. Ann. 107.151], which provides that when execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien.

In the case of Davidson v. Burke, 143 Ill. 139, it was stated by the court (at page 150), “. . . although defendant- in error had no judgment lien on the land by virtue of the statute . . . the Us pendens was an equitable levy and created an equitable lien on the lands; and it is wholly unimportant that the final decree establishing the lien and ordering a sale was not rendered until long after the judgment at law had ceased to be a lien, by force of the statute, upon the real estate of the judgment debtor.” It is obvious that the filing of the foreclosure suit during the period of a year clearly makes the doctrine of “lis pendens” applicable, and the pendency of that action was sufficient to create an equitable lien on the lands, insofar as the judgment creditor was concerned. The decree of the circuit court which held ■ that such judgment was a third lien against the mortgaged premises was obviously correct, and it will, accordingly, be affirmed.

Affirmed,


author: Mr. Justice Stone

text:
    Harry M. Avance, Appellee, v. Guy A. Thompson, Appellant.

      Opinion filed October 30, 1943.

      Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant.
    Joseph B. McGlynn, of East St. Louis, and Robt. J. McDonald and William H. DeParcq, both of Minneapolis, Minnesota, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit brought by Harry M. Avance, plaintiff appellee (hereinafter designated as plaintiff) against Guy A. Thompson, trustee, Missouri Pacific Railroad Company, a corporation, defendant appellant (hereinafter designated as defendant) to recover damages under the Federal Employers’ Liability Act, for injuries sustained at Bismarck, Missouri, on January 17,1942, while employed as a brakeman by defendant company. The accident resulted in his right leg being amputated about three inches above the knee and his left leg about four inches below the knee.

The complaint consisted of one amended count, and it alleged in substance, the employment of plaintiff by defendant as a freight brakeman in the switching of certain cars and participating in the furtherance of the movement of interstate commerce at Bismarck, Missouri, on January 17, 1942, and that defendant violated the Federal Employers’ Liability Act in that defendant wrongfully and negligently pushed, kicked, hit and operated some cars on the same track on which were located the cars on which plaintiff was at work, causing these cars to collide with the cars on which plaintiff was so at work, with such force as to throw plaintiff to the ground and injuring him, and that no warning or notice was given of the approach and contact of these cars.

In his answer, defendant denied that at the time of the accident plaintiff was engaged in the furtherance of interstate commerce; denied the negligence charged; denied plaintiff’s injuries were the result of defendant’s negligence; averred plaintiff’s injuries were proximately caused by his own negligence, which in any event contributed thereto.

A trial by jury resulted in a verdict for $125,000. On motion for new trial plaintiff assented to a remittitur of $25,000, and judgment was entered against defendant for $100,000 and costs, from which judgment, defendant prosecutes an appeal to this court.

Plaintiff, at’ the time of the accident was 22 years old. On May 28,1941, after about 12 student trips for instruction, he started work for defendant as a brakeman operating out of Poplar Bluff, Missouri. On the morning of the accident, the train crew’s work was to switch the yard at Bismarck, make the Missouri and Illinois R. R. delivery and make up their train to be hauled to Poplar Bluff. This crew consisted of Maddox, conductor; Morse, head brakeman; Hayes, engineer; plaintiff, rear brakeman; Robertson, plaintiff’s father-in-law, fireman and Brannon, who was sort of assistant conductor.

In the yards a track known as the lead track ran in a northerly-southerly direction. The coal chute track branched off the lead track. This coal chute track was used to supply the coal chute with coal, and standing-on it at a point northwardly from its junction with the lead track were in order, two loaded coal cars and then three empty coal cars. It was purposed to remove the three empty coal cars so that they could be put over in the yards and then spot the loaded coal cars on the coal chute track. At the time the engine was headed south and was just south of the coal chute switch. It had hold of two box cars and a tank car which it had brought back from the Missouri and Illinois R. R. connection. It backed these cars into the coal chute track, coupled onto the two loaded coal cars and proceeded backwards until it had coupled onto the three empty coal cars. Then it returned southwardly off of the coal chute track past the switch and drew the entire cut of cars onto the lead track. The immediate object of the foreman was to kick the three empty coal cars far enough up the lead to clear the switch leading* to the coal chute, thus enabling* him to spot two coal cars and return and pick up the three empties. Bran-non, who in the absence of Conductor Maddox was in charge of the movement decided to do this by kicking them instead of shoving them under engine control.

It is claimed by plaintiff that Brannon instructed him to ride the cars and tie them down when they came to a stop, and claims he was given no information or instructions concerning* the next stop. Brannon claims that he directed plaintiff to ride the three empty coal cars and watch out for them, to ride the ears until they came to a stop, and to watch them in case another engine came out, or if they fouled the roundhouse switch 443 feet north of the coal chute switch.

The cars were traveling at a speed variously estimated by plaintiff at two miles an hour; by brakeman Morse at three or four miles an hour; by engineer Hayes at six or seven miles an hour and by brakeman Brannon at seven to nine miles an hour, when plaintiff got to the southwesterly corner of the most northerly car, going immediately to the brake platform at that corner. Plaintiff took his station on the brake platform three feet below the top of the car, facing toward the north, in the direction in which he was traveling, with his back toward Brannon and the engine intending to set the brake when the car stopped. Brannon claims that he shouted to plaintiff, “Lookout, I am going to bump them,” and that plaintiff answered, “O. K. let them bump.” Morse also testified to this in substance. Brannon then signaled the engineer to back up. Plaintiff claims that he had not started to set the brake, when he heard someone say, “Look out” and there was a loud crash. This cry and the crash so he testified, came at the same time and the impact knocked him to the ground. Plaintiff fell on the track, and the trucks of two of the coal cars ran over his legs, causing the injury complained of. Principal errors relied upon for reversal are, that the verdict is against the manifest weight of the evidence on the question of the commerce character of plaintiff’s employment; that the court erred in striking defendant’s special defense based on the Missouri Workmen’s Compensation Act; that the court erred in ruling on evidence, particularly in the admission of a mortality table; that the verdict is excessive, and that the court erred in the giving of certain instructions to the jury.

The error assigned that the court erred in striking defendant’s special defense based on the Missouri Workmen’s Compensation Act is not argued. Where a party objects in his brief on appeal to rulings of the trial court but gives no reasons or arguments and cites no authorities to support his objection, this point will be considered waived. Joseph Schlitz Brewing Co. v. Mahozki, 108 Ill. App. 511.

It is urged that the trial court erred in admitting'in evidence a mortality table, and cite in support thereof, Chicago B. & Q. R. Co. v. Johnson, 36 Ill. App. 564. It is true, that in that early case, it was held error to admit such a table, the reasoning of the court there being, that it was not competent to thereby show the probable duration of life of the injured party, and to indicate how long that party would suffer. In the later case of Foley v. Everett, 142 Ill. App. 250, the court said, “The appellee is entitled to all the earnings that he has lost by reason of his loss of time since the injury and all that he will lose in the future. He is entitled to compensation for all his suffering, pain and inconvenience past and prospective, and compensation for all medical expenses necessarily incurred by him. In arriving at the amount he is entitled to recover, his age and expectancy of life should be considered in connection with both his earning capacity and suffering.” We know of no better way of showing his expectancy of life, as the rale is laid down in the Foley case, than by giving the jury the benefit of a standard mortality table. As the court said in the case of Vicksburg & M. R. Co. v. Putnam, 118 U. S. 257, 258, “In order to assist the jury in making such an estimate, standard life and annuity tables, showing, at any age, the probable duration of life, and the present value of a life annuity, are competent evidence.” Certainly this would be so in cases of permanent injury not causing death or total disability. Louisville & N. R. Co. v. Burns (6th Cir.), 242 Fed. 411. We are not inclined to hold that the trial court erred in the admission of this exhibit.

Defendant further claims that plaintiff was not in any way concerned with interstate commerce. The statute, broadened by the 1939 amendment, now reads, “Any employee of a carrier, any part of whose duties as such employee shall be in furtherance of interstate or foreign commerce; or shall in any way directly or closely and substantially, affect such commerce as above set forth shall for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” In construing such amendment in the late case of Edwards v. Baltimore & O. R. Co. (7th Cir.), 131 F. (2d) 366, which involved a machinist’s helper repairing an engine, the court said, “Despite any question as to whether plaintiff might have recovered under the original Act, it is clear that he is within the scope of the amendment. Under the original statute experience demonstrated continued difficulty in ascertaining when the work of any . employee was part of interstate commerce. The amendment, much wider in scope, was inspired by a desire to avoid such confusion. Congress’ intent to include an employee who performs services which in any way furthers interstate commerce is clear.”

This amendment has been construed in Louisville & N. R. Co. v. Potts, 178 Tenn. 425, 158 S. W. (2d) 729; Southern Pac. Co. v. Industrial Accident Comm. (Cal. App.), 113 P. (2d) 768; Piggue v. Baldwin, 154 Kans. 708,121 P. (2d) 183; Ermin v. Pennsylvania R. Co., 36 F. Supp. 936.

Without going into detail with reference to all of the nine cars involved in the switching operation, in the course of which plaintiff was injured, it appears that cars, Missouri Pacific 3205, PEE. 50409 and PTX. 4741 were cars included in this nine, that were brought in from Illinois on train 93 by Conductor Eehm. There appears no dispute but what car PTX. 4741 was being hauled and switched on its journey from Illinois to Arkansas at the moment of impact. According to Conductor Maddox car PTX. 4741 was destined to go to Texarkana, Arkansas, as part of train 57, taken out of Bismarck, Missouri.

It is contended by defendant that at the time of the accident the activity in which plaintiff was engaged was the switching of three empty coal cars out of the coal chute track to the railroad yards and the replacing and spotting in the coal chute track of two loaded coal cars and that when a train crew is engaged in such switching operations, the commerce character of the employment is determined by the character of the switching movement at the time being made. Counsel for defendant further contend that though car PTX. 4741 later in the day left in train 57, destined to Texarkana, Arkansas, yet there is no evidence that at the time of the accident it had been billed or assigned for such a destination or on this particular train. We do not believe that the fact that this car was not taken directly from the Missouri-Illinois Eailroad Company, over to track number 7 and placed in train number 57 from Texarkana is material. A local and temporary switching movement does. not interrupt interstate commerce. Pipal v. Grand Trunk Western Ry. Co., 341 Ill. 320; Herb v. Pitcairn, 306 Ill. App. 583; Davis v. Dowling (6 Cir.), 284 Fed. 670; Gehan v. New York Cent. R. Co., 205 App. Div. 554,199 N. Y. S. 847; Sullivan v. Wabash Ry. Co. (6 Cir.), 23 F. (2d) 323.

In Pipal v. Grand Trunk Western Ry. Co., supra, it was held that the detention of an interstate car on a hold track at its point of destination before removal for unloading was but a temporary interruption of the interstate shipment and did not terminate its character. There, the railroad company claimed that when the cars had reached Blue Island, they had arrived at their destination. It was further argued that when they were moved later to 13th street for unloading nothing was involved but a local interstate switching movement. The court rejected this theory. In the case of Herb v. Pitcairn, supra, the Appellate Court said, “ This court is unable to perceive a sound reason, or any'precedent which determines that a ‘continuity’ of movement is requisite to characterize a movement as being ‘interstate’. Instances may readily be cited of many and varied switching movements which may be required in facilitating the journey in interstate commerce of a car or train, and the fact of continuity of movement has apparently never been determined as an essential requisite to the determination of interstate character of commerce (Minneapolis, St. P. & S. Ste. M. R. Co. v. Goneau, 269 U. S. 406, 70 L. Ed. 335, 46 Sup. Ct. 129).”

It is sufficient to bring the activity, within the Federal Act, that one or more of the cars being moved has been destined for interstate transportation irrespective of whether a specific train is being prepared at the time. Mitchell v. Louisville & N. R. Co., 375 Ill. 545. In the instant case there was no interruption whatever of the movement of car PTX. 4741 because the engine continuously was attached to it and hauling it and moving it from the time of its pick-up from the Missouri-Illinois Bailroad Company until the time of its placement in train number 57, destined for Texarkana, Arkansas.

The case of Benson v. Chicago, R. I. & P. Ry. Co., 267 Ill. App. 11, aff’d 352 Ill. 195, is closely analogous to tbe case at bar. The engine in that case had a hold of seven or eight cars. A movement was being made to shunt a car on a yard track. These cars were being pushed by an engine and Benson in the uncoupling of the car farthest away from the engine in order to separate it and kick it along on the yard track, stumbled, was dragged along, and severely injured. It was not shown that the particular car being switched was engaged in interstate commerce, but there the court said, “The evidence shows that the cut of cars upon which the appellee was working contained cars which had been shipped from other states. One car was being shipped from Peoria to New Jersey. That the appellee was so engaged in interstate commerce at the time of his injury is sustained by the cases of Wangerow v. Industrial Board, 286 Ill. 441; Davis v. Dowling, 284 F. 670, Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; Erie R. Co. v. Winfield, 244 U. S. 170 and New York C. & H. R. R. Co. v. Carr, 238 U. S. 260. It is our opinion that at the time of the accident the appellee was engaged in interstate commerce transportation.”

As to the contention of defendant, that the verdict of the jury was manifestly against the weight of the evidence in that the evidence proved that the plaintiff was not engaged in interstate commerce at the time of the injury, we hold that there was substantial evidence, as we have indicated in this opinion that plaintiff was engaged in interstate commerce, or work nso closely related thereto as to be practically a part .thereof, at the time he was injured, and we cannot therefore say that the verdict of the jury is contrary to the manifest weight of the evidence.

It is urged on the part of defendant, that the court erred in the giving of plaintiff’s instruction No. 12,' which told the jury that “it should take into consideration the amount of earnings it is reasonably certain from the preponderance or greater weight of the evidence in this case, if any, he (plaintiff) will lose in the future in consequence of said injuries.” It is argued that the jury if they found for the defendant, was required by this instruction, when considered with the mortality table, to multiply $2,376 (the projected yearly wage) by 40.17 years (the life expectancy of plaintiff according to such table). We do not understand that juries are required to arrive at the amount of damages in personal injury cases with any such mathematical precision, and we find no error in this instruction.

Complaint is made that the court erred in the giving of plaintiff’s instruction No. 2, which reads as follows:

“The jury are instructed that it appears in evidence that the plaintiff and the defendant were engaged in interstate commerce, and transportation at the time of the accident, and • therefore, the rights and duties and liabilities of the parties to this action are not governed, affected or controlled by the laws of the State of Missouri, where the accident happened, nor by the laws of the State of Illinois, where this action is being tried, but the rights, duties and liabilities of the parties are governed and controlled exclusively by the Federal Employers’ Liability Act of the United States.”

It is contended that defendant was entitled to have the jury pass on the commerce character of work being done at the time of plaintiff’s injury. If the question as to whether or not plaintiff was engaged in interstate commerce at the time of his injury was a controverted question, this would be for the • determination of the jury. However, as we have previously held in this opinion, there seems to he no substantial controversy about this, and we are not inclined to hold that the giving of this instruction was error.

The giving of plaintiff’s instruction No. 6 is urged as reversible error. This instruction reads as follows:

“The Act of Congress further provides that the fact that the injured employee may have been guilty of contributory negligence, if any, does not bar a recovery, but under such circumstances the damages shall be diminished in proportion to the negligence attributable to such employee. You are therefore instructed that if from the preponderance or greater weight of the evidence in this case you find that defendant was guilty of one or more of the charges of negligence alleged in plaintiff’s complaint, and further find from the preponderance or greater weight of the evidence in this case that plaintiff was guilty of negligently contributing to his injury, then plaintiff’s contributory negligence, if any, does not bar him from recovering in this action, but will affect any damages he is entitled to recover, lessening such damages, if any, to the extent that his negligence, if any, contributed to this accident. ’ ’

It is urged the vice of this instruction is that it ignores defendant’s defense to plaintiff’s cause of action, i. e. that plaintiff’s conduct or negligence was the proximate cause of his injuries. The instruction does not direct a verdict — it merely advises the jury that if both parties are negligent, then the fact of plaintiff’s contributory negligence does not bar recovery. Defendant’s instruction No. 2 told the jury that if they believed that the injury suffered by plaintiff was due entirely to his own negligence, if any, and was not proximately caused in whole or in part by the negligence, if any, of the defendant, then they must find the defendant not guilty. Contributory negligence, in this class of cases does not bar recovery, but lessens damages, 45 USCA 53; Gildner v. Baltimore & Ohio R. Co., 90 F. (2d) 635; Miller v. Central R. Co. of New Jersey, 58 F. (2d) 635. Plaintiff’s instruction No. 6 simply advises the jury as to an element that they may consider in assessing damages, not something that would be a-complete defense to the action. This is supplemented by defendant’s instruction No. 2 which advises them when that element would be a complete defense. Any error in the giving of an instruction for plaintiff, not peremptory in its character is cured by the giving of an instruction for defendant which states the elements that can be taken into consideration. Howard v. City of Rockford, 270 Ill. App. 155. The instructions are to be taken as a series and the charge construed as a whole. Bolle v. Chicago & N. W. R. Co., 258 Ill. App. 545. We believe then on the whole, the jury were instructed fairly and correctly as to the law.

It is strenuously argued on behalf of defendant that the damages are excessive. On behalf of plaintiff it is urged that the question of damages is not open for consideration or review in the Appellate Court for the reason that it must be determined according to the general principles of law as administered in the federal courts. In the federal courts the question of whether a verdict is excessive is not for a court of appeals. Chesapeake & O. B. Co. v. Kelly, 241 U. S. 485. In the case of Stott v. Thompson, 294 Ill. App. 450, this court held that the question of the amount of damages awarded by the jury, in cases arising under the Federal Employers’ Liability Act, is not for the consideration of the State courts, upon appeal. Upon a further consideration of this question, it seems the better practice to consider the question of the excessiveness of the damages in this court. In cases arising under the Federal Employers’. Liability Act all procedural matters, including the admissibility of evidence, are governed by the law of the forum, Central Vermont Ry. v. White, 238 U. S. 507; Brinkmeier v. Missouri P. Ry. Co., 224 U. S. 268; Chesapeake & O. R. Co. v. De Atley, 241 U. S. 310; Chesapeake & O. R. v. Kelly, 241 U. S. 485; Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211. We will therefore consider the claim of defendant that the damages awarded by the jury, and the judgment of the trial court was excessive.

There can be no question about the seriousness of plaintiff’s injuries. Both of his legs were cut off, at the time of the accident, the right leg two inches below the linee, the left, eight inches below the knee. He lay on the ground between 25 and 30 minutes. The company doctor gave him shots, and he was taken to the hospital in St. Louis, the doctor giving him further shots en route to relieve pain. He was in the hospital 13 weeks and 4 days, and in that time both legs were operated upon and further amputations made, the right leg three inches above the knee and the left leg four inches below the knee. He lost between 60 and 70 pounds .while in the hospital, had three blood transfusions, and suffered quite a bit of pain during the first 10 weeks; He gets about in a wheel chair, but needs assistance in getting in and out of it. He is 22 years of age and previous to the accident was in good health.

As a court of appeals, in passing upon the question of alleged excessive damages, we can neither speculate or conjecture as to how plaintiff’s financial status might be affected in the future by business booms or depressions; by the uncertainties of the labor situation after the war, or how his earnings might be affected by his expenses away from home, taxes, work clothing, union dues, social security and old age pension. We assume that the jury took these matters into consideration in arriving at their verdict and that the trial court did the same in entering the remittitur. Nor can we in a personal injury case, reduce the amount of the verdict to a matter of mathematical computation. De Fillippi v. Spring Valley Coal Co., 202 Ill. App. 61. Nor can we compute the earning capacity of the amount awarded plaintiff at any given rate of interest. Apparently counsel for defendant expects this court to do all this. We do not find it within our province to do so.

Counsel for defendant, in support of their contention that the amount of the verdict is excessive, cite many cases, both in Illinois and other jurisdictions, in the most of which the injuries were not as serious and the eases decided some years ago. The damages awarded by .the jury may be larger than would have been sustained years ago, and on the question of the amount, the earlier decisions of this State are of litle assistance. We cannot, howver, be unmindful of the fact that the money value of life and health is appreciating and the purchasing power of money depreciating during recent years. Posch v. Chicago Rys. Co., 221 Ill. App. 241.

In Bolle v. Chicago & N. W. R. Co., 258 Ill. App. 545, cited by plaintiff, the plaintiff was 22 years of age and was earning $130 a month, as against $198 a month earned by plaintiff in the instant case. The court there sustained a verdict-of $37,500, as not excessive, for the loss of one leg above the knee. This was in 1930.

In Toledo, C. & O. R. Co. v. Miller, 108 Ohio St. 388, 140 N. E. 617, decided in 1923, plaintiff was a carnival worker who lost both legs in a crossing accident. Of necessity his earning capacity must have been considerably less than that of plaintiff in the case at bar. In that case in sustaining the verdict of $75,000' as not excessive, the court said, “While the verdict is a large one, the effect upon this man’s life, his past and present suffering, the uncertainties the future has for him, his ability to get about in modern conditions of travel and traffic in city streets and thoroughfares, might be elements such that the jury, upon full consideration, would feel justified in returning the amount they did.”

It is difficult to appraise scientifically human pain and suffering and a mutilated body. In this character of case the damages are for the determination of the jury, and unless we are able to say that the verdict is so excessive as to indicate that the jury was moved by prejudice or passion, we would not be warranted in reversing the judgment on the ground that the verdict is excessive. Bolle v. Chicago & N. W. R. Co., supra; Posch v. Chicago Rys. Co., supra; Kavale v. Morton Salt Co., 242 Ill. App. 205; Maskaliunas v. Chicago & W. I. R. Co., 235 Ill. App. 198.

"Without deciding whether the amount is larger than we would have awarded had the responsibility been ours in its inception, we think that it is not so excessive as to require interference on our part. Finding no reversible error, the judgment of the circuit court of St. Clair county will be affirmed.

Affirmed.