text:
    George W. Brown v. The Galesburg Pressed Brick and Tile Company.

      Practice—Stipulation to Submit Cause to Particular Judge—Right of Appeal—Finding of Court—Weight of—Practice—Admission of Evidence.

    1. An appeal will lie to this court from a judgment entered in an action of case for alleged negligence, where it is stipulated that a jury be waived, that proof of negligence be waived, that the case be submitted to a particular judge, and that when he shall have determined the compensatory damages, judgment shall be entered for one-half the amount so found.
    2. The same consideration is due to the finding of the court, in a trial without a jury, upon a question of fact, as to the verdict of a jury, and that finding will not be set aside unless manifestly against the weight of the evidence.
    3. This court, on appeal from a judgment entered on trial by the court, will not consider the question of the admission of improper evidence, but no propositions of law having been submitted to the court, will presume that the court below determined the issues upon competent evidence.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. M. J. Dougherty, for appellant.
    Mr. J. A. McKenzie, for appellee.
   Lacey, J.

This was a suit brought by appellee against appellant in an action on the case to recover damages accruing to the former by means of the breaking of the appellant’s dam and the carrying off wood and coal by water and filling coal shaft, destroying brick, kiln and machinery, etc., which it alleged was occasioned by the carelessness of appellant in not using the proper skill in constructing the dam.

The appellant pleaded the general issue and it was stipulated to waive a jury and try the case before the court, the Hon. A. A. Smith, Judge, presiding; and appellant waived the proof of negligence on part of appellee, that is, it was admitted, and it was further stipulated, that when the judge, sitting as said court should have determined such damages, which should be actual or compensatory only, judgment then should be rendered for the appellee and against appellant for the one-half of the amount of such damages established by the evidence and found by the court. The nature of the stipulation was kept from the knowledge of the judge until after the trial and the finding by the court. The j edge found the damages to be §2,900, and in accordance Avith the agreement, judgment only for §1,150 was rendered against the appellant.

The first question arising is on the motion of the appellee to dismiss the appeal for the reason that the trial was in the nature of an arbitration and the agreement amounted to a confession of judgment from which it is insisted no appeal could be taken. We think the point is not well taken. It was essentially a trial by the court and the fact that it was agreed that a particular judge was to try the case Avould not change the nature of the proceeding.

The right of trial and appeal remained to appellant the same as though it had been submitted to a jury. There was no express Avaiver of such right of appeal by the terms of the agreement and Avithout such Avaiver the jiarties to the agreement Avould have all the rights remaining allowed by laAv. Nor was the agreement to accept a judgment for one-lialf the amount found by the court a confession of judgment for that amount. The amount of the judgment Avas fixed by the finding of the judge and depended upon a proper trial of the issue by the court to the extent of one-half, and there Avas no waiver of any right to appeal by express terms of the agreement, nor do we think such could be the ease by any fair inference. Therefore, the motion to dismiss the appeal must he overruled.

The main point urged by appellant for reversal is that the finding of the court was grossly against the weight of the evidence. The items of loss are the loss of twelve cords of wood, damages to fire brick kilns and to brick already burned audio a large amount of coal washed away by the flood caused by the breaking of the dam, and damages to four brick kilns and to time and labor caused by the overflow, aggregating as claimed by appellee the sum of $4,427.24J. But the court found from the evidence the sum of damages to be only $2,900. The evidence is very voluminous and contradictory and we have examined it carefully with a view of arriving at a just conclusion. Space and time forbids us giving in detail the results of our examination and a full canvass of the evidence. We will say generally that there appears to be sufficient evidence upon which the court below could base the finding and judgment. It did not take the highest amount as an estimate of the damages shown by appellee’s witnesses nor the lowest amount testified to by appellant’s witnesses, but seemed to weigh the matter impartially so far as we are able to judge. The same consideration must be given in favor of the finding of the court where the court tries the case as where it is tried by a jury. And unless the finding is manifestly against the weight of the evidence the finding will not be disturbed and we are unable to say that such is the case here.

The point made that the court erred in admitting certain testimony against appellant’s objection, we think can not be availed of in this court, even if it was error, which we will not stop to inquire. There were no propositions of law submitted to the court by appellant and without such we must suppose the court did not err in giving weight to improper evidence. Although the evidence may have been improperly admitted, we will presume the court only decided the case on the legal testimony.

Seeing no error admitted by the court against the appellant, the judgment of the court below is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Upton, P. J.

license: Public Domain

text:
    Mary T. Owens et al. v. Guy Stapp, Receiver, etc.

      Banks—Fraudulent Acts of Cashier of National Bank—Acts Ultra Vires—Acceptance by Bank of Benefits—Can Not Escape Liabilities— Interest on Overdrafts.

    1. A bank should not be allowed interest on overdrafts of a depositor.
    2. The evidence in the case at bar shows that the acts of the cashier were intended by the parties to be in his official and not in his individual capacity.
    3. Acts of a cashier of a bank, in behalf of the bink, not criminal nd contrary to public policy, though not strictly within the powers of the bank, done in the course of a transaction which has been executed in whole or ir part, can not be so repudiated by the bank that it should enjoy the benefits and escape the liabilities of the transaction.
    [Opinion filed December 16, 1889.]
    In error to the Circuit Court of Warren County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Porter & Macdill, for plaintiffs in error.
    Messrs. Kirkpatrick & Alexander and R. J. Grier, for defendant in error.
   Upton, P. J.

This was a bill in equity brought by plaintiffs in error to the Circuit Court of Warren County, against defendants in error, in which is prayed special and general relief, upon the following facts, which are in substance set forth in the bill.

The First Rational Bank of Monmouth, Illinois, was duly organized under the act of Congress know as the “ Rational Banking Act.” B. T. O. Hubbard was its cashier duly appointed. James F. Owens, husband of Mary T. Owens, was indebted to various persons, and on the 21st of May, 1880, applied to the bank to learn of a source from whence he could obtain about $2,400, with which to liquidate that indebtedness. Hubbard, its cashier, acting for the bank, offered to make to him the desired loan from the bank, and the offer was accepted, for which Owens executed three notes payable to Hubbard, one for $1,000, and two for $700 each, all due and payable in three years from date, with interest at eight per cent. To secure these notes Owens and his wife, plaintiffs in error, joined in a mortgage upon the real estate of the wife. The interest as it became due upon this loan was paid by Owens to Hubbard in each year at the bank.

October 30, 1883, Jas. F. Owens made a further loan of the bank through its cashier, of the sum of $280, due in ninety days, and his wife, Mary T., joined in a note payable to the bank therefor. Some time about February 1, 1883, this indebtednessbeing past due, Owens was in need of more money, being pressed for payment, and was informed by Hubbard that the bank held the three notes given for the $2,400 loan of May 21, 1880, and that it would be willing and was desirous to renew that loan upon the same security as then held for the old loan of May 21st. It was agreed that the bank should make a new loan of $3,500 to Owens, the money to be applied to the satisfaction of the notes secured by the mortgage of May 21, 1880, and about nine months interest thereon, and in satisfaction of the $280 note; cancel all these notes and surrender the same to Owens; cancel and release of record the mortgage of. May 21st, and cause to be placed of record the new mortgage to secure said last loan, and place the balance of the $3,500, remaining after making such payments, to the credit of Jas. F. Owens on the books of the bank.

In pursuance of this last mentioned agreement, plaintiffs in error executed four notes, bearing date February 1, 1884, payable in three years from date to Hubbard (cashier), together with a mortgage to secure the same, (which notes bore interest at eight per cent per annum, both Owens and his wife joining in the execution thereof,) on the land of the wife, being the same security which had been agreed upon, and delivered the same so executed, to its cashier at the bank. When these notes and mortgage were delivered, Hubbard informed plaintiffs in error, that he could not complete the matter at that time, by the delivery and cancellation of the notes of date of May 21, 1880, for the reason, as he then stated, that one of the notes was not then in the bank, but would be in a few days, and then the whole matter should be closed up and completed as had been agreed. To obviate all trouble to plaintiffs in error by this delay, it was agreed that Jas. F. Owens might draw checks on the bank the same as if such balance had been ascertained and placed to the credit of plaintiffs in error, and when the note was returned, he, Hubbard, would ascertain the exact balance and complete the agreement by giving the credit on the books of the bank, cancel and deliver the old notes of May 21, 1880, release the mortgage given to secure the same, and deliver said canceled and released notes and mortgage, together with the 8280 note to Jas. F. Owens, as he had previously agreed to do. These notes were never delivered, nor the old mortgage released, nor the credit given on the books of the bank, and but one of the notes taken up and canceled, as hereafter stated.

Hot one of the notes of May 21, 1880, were, at the time of making the before mentioned agreements, in possession of the bank. Its cashier, Hubbard, had taken those notes before that time, and sold and transferred the same to certain custo tiers of the bank—the note of $1,000 to one William P. Pressley, one for $700 to a Miss French, and the other one for $700 to one Cyrus Atwood, all of which was unknown to the directors of the bank, or the plaintiffs in error.

In the performance of the agreement, however, Hubbard, on or about February 6, 1884, negotiated two of the new notes of date February 1st, one for $1,000 and the one for $500, to the same William P. Pressley, who then held the 81,000 of May 21, 1880, taking up and canceling the $1,000 note of May 21, 1880, and on the 8th of February, 1884, Hubbard assigned one other of the $1,000 new notes, dated February 1,1884, to one David Haley, in consideration of $1,000, which the bank owed Haley on certificates of deposit issued by the bank. Pressley paid Hubbard, for the bank, for the two notes purchased as above stated, by his check on the bank for the difference between the note then held by him of $1,000, of date May 21, 1880, and interest thereon for about nine months, and the $1,500, being the face of the two notes purchased by Pressley, the amount of such check being $443.78, and the cashier, Hubbard, allowed James F. Owens to draw on the bank from February 6, 1884, under said agreement, to March 5, 1884, about $563.14.

In that condition matters remained, with one note of $1,000, of date May 21, 1880, taken up and canceled, and one of the $1,000 notes of date February 1, 1884, and the mortgage, in possession of the bank (the note not indorsed), the old mortgage of May 21, 1880, then and still uncanceled, and the new-one unrecorded, until April 5, 18S4, when the directors of the bank, learning of the fraudulent acts and defalcation of its cashier, Hubbard, took control of its affairs from the hands of its cashier, Hubbard, who before that time had been in almost exclusive control thereof—placed the same in the custody of John Carr, one of its directors, and on the 8th of April, 1884, the bank closed its doors, went into liquidation, and defendant in error—Guy Stapp—was appointed its receiver, under and pursuant to the provisions of the above mentioned banking act. In the meantime, Carr, acting for the bank and before it ceased its business as a bank, placed the mortgage of date February 1, 1884, on record, while the notes for $700 each, in the hands of Atwood and French, were outstanding, and while the note for $280 was in the possession of the bank nncanceled, and no creditgiven upon the books of the bank to Owens, as had been agreed, and the books of the bank showed overdrafts against Owens of $512.04. The plaintiffs in error admit in their bill of complaint, that Pressley, Atwood, French and Haley hold as innocent purchasers for value, notes secured on the lands of Mary P. Owens, amounting in the aggregate to the sum of $3,900 as principal; ask relief against the bank for the wrongful acts of its cashier and director, Carr; pray that the note for $280 and the overdrafts for $512.04 be canceled, and seek a decree against the bank for the excess over $3,500 (evidenced by the note held by Pressley, Atwood, French and Haley as before stated, against the lands of Mary T. Owens), and that the §1,000 note, of date February 1, 1884, not negotiated, be surrendered, and for general relief.

Defendant in error, Guy Stapp, as receiver, answers, denying the allegations of the bill, and filed his cross-bill, claiming that the bank held the $1,000 note of February 1, 1884, with the mortgage of same date, as collateral security for the note of §280, date October 30th, and the overdrafts of J". F. Owens amounting to §512.04; made Pressley, Atwood, French and Haley defendants, and prayed for foreclosure of the mortgage of February 1, 1884. Answers to cross bill and replications were duly filed, the proofs taken and heard, and the court below denied the relief sought in the original bill, except to decree that the defendant in error, Guy Stapp, should cancel and surrender the §1,000 note of date February 1, 1884.

On the cross-bill the court held, that the note of §280 of October 30th, was still due and unpaid, and also the overdrafts were due and not paid, and rendered a decree in favor of Guy Stapp, as such receiver, against Mary T. Owens and James F. Owens jointly, for the amount of the §280 note and interest, aggregating §377.37.

And the court below also rendered a decree against James F. Owens individually for the amount of such overdrafts and interests thereon in the sum of §640.04 and refused other relief. To this decree both parties excepted and have assigned errors of record.

In this decree we think the court below erred. Interest under our statute can only be allowed by agreement of the parties, on written instruments, or on an account stated and agreed upon between the parties, in the class of cases now before us, and not otherwise; and the court was in error in allowing interest on the amount claimed for the overdrafts as appeared upon the boobs of the bank.

That court also erred in our judgment in holding that the several transactions hereinbefore stated with B. T. O. Hubbard as the cashier of the bank were the individual transactions of Hubbard, for which the bank was not liable, and also erred in holding that such transactions between Hubbard, in behalf of the bank, even if done in its behalf with the plaintiffs in error, were ultra vires to the extent claimed.

We think the evidence sufficiently shows that the entire transactions between James F. Owens and Hubbard were all done and transacted in behalf and for the benefit of the bank and were so understood and intended at the time, both on the part of the cashier, Hubbard, and Owens, and was in no way the personal business of Hubbard or one in which he was in any manner personally lawfully interested. The note for $1,000, of date February 1, 1884, then unsold, was found among the other papers and assets of the bank. To this note was attached a memorandum which manifested beyond cavil that it was an affair of the bank, and not that of Hubbard personally. This memorandum, which is in the handwriting of Hubbard, shows the accounts in the bank of this transaction; the overdraft of $512.04 from the $.1,000, received from the sale, of the note to Haley, left the sum of $487.96 as therein stated, if that had been charged to the bank as it should have been on the bank books. It is not pretended that Hubbard kept any private books of account in other transactions of like character, while acting as such cashier, of which there were others. It was done for the benefit of the bank and not for himself, and this memorandum, with the other circumstances in the case, are conclusive in our judgment that such was the intention. It is further manifested by the way the business was transacted in the fact of allowing an overdraft to the amount of $512, with no credit on the books or security to the bank therefor.

It is urged here, as a complete answer to all the facts and circumstances (to some of which we have above alluded) that such transactions were not within the powers of the bank, under its charter. This, if conceded to be strictly true in a technical sense, does not bar the relief sought; for the transactions in the case at bar, as shown by the record, were not criminal nor against public policy, and when once executed in whole or in 'part as in this case, the bank can not repudiate the transaction, hold and enjoy the benefits, and escape the liabilities.

The note was made to Hubbard, no doubt as cashier— though that designation does not appear—sold, and the money from Haley and Pressley received by and for the benefit of the bank. The bank must account for it—in equity and good conscience it should—and we see no legal obstacle to its being compelled so to do, at least to the extent that the agreement had been executed. Had the agreement been unperformed on the part of the bank, while it remained executory, the principle of “ ultra vires ” might apply, perhaps, but which need not be determined here. First Nat. Bk. of Monmouth v. Brooks, 22 Ill. App. 238, and cases cited therein; Ohio and Min. Ry. Co. v. McCarty, 6 Otto (U. S.), 258: Darst v. Gale, 83 Ill. 141; Bradley v. Ballard, 55 Ill. 413; Ward v. Johnson, 95 Ill. 240; 65 Ill. 458-60; N. W. Bk. v. Matthews, 8 Otto (U. S.), 621; Fortin v. Nat. Bk., 112 U. S. 439; N. Bk. v. Whitney, 103 U. S. 99.

Thus it appears, that while Hubbard managed the affairs of the bank, he proceeded in the performance of the agreement under which Owens delivered to the bank these notes and mortgage for $3,500 as before stated, to take up and cancel the $1,000 note in Pressley’s hands of date of May 21, 1880, and substituted in lieu thereof one of the new notes, date February 1, 1884, for $1,000, and had sold to Pressley one of the new series of notes for $500 of the same date, and one other of this new series to Haley for $1,000, aggregating the sum of $2,500, leaving in the bank the other one of this new series of notes for the sum of $1,000, undisposed of—and he-had allowed James F. Owens to check out (or overdraw) from the bank $512.04 as shown by its books.

So far the original contract with plaintiffs in error was completed, when, on the 8th day of April, 1884, the cashier was relieved of his duties at the bank, the directors took charge of its affairs and filed the new mortgage dated February 1,1884, for record, and the same was thereafter recorded; the bank holding the remaining $1,000 note of plaintiffs in error, refused to surrender it, and claimed to hold it by right of some agreement between the makers thereof and the bank, by which such note became, and was of right held as collateral security for the overdraft of $512.04 (to substantiate which claim there is no evidence in this record), and refused to carry out the original contract. After the bank went into liquidation and the defendant in error, Guy Stapp, took charge of its affairs, this claim of the bank, as before stated, was by him made and re-asserted in his cross-bill filed herein. Why then, should not the bank be charged with this contract made by its cashier, so far as it has received the benefits thereof, or has ratified it, either in whole or in part ? Clearly, Hubbard, as cashier, has authority to bind the bank in making the agreement for the loan of the $3,500 in money to plaintiffs in error, and that the bank can not now repudiate that contract and keep its fruits, seems equally clear. Railway Co. v. McCarthy, 6 Otto (U. S.), 258; Twin Lick Oil Co. v. Maebury, 1 Otto (U. S.), 587; Fleckner v. U. S. Bank, 8 Wheaton (U. S.) ,357; Mechs. Bk. of Alexandria v. Bk. of Columbia, 5 Wheat. 326; Bk. of U. S. v. Dandridge, 12 Wheat. U. S. 64; Casey v. Society Credit, 2 Woods, 77, and Thompson N. B. Cases, 293.

Where a corporation is acting within the scope and purposes of its organization, all parol contracts made by its authorized agents are held as express promises of such corporation, and the benefits arising therefrom or conferred thereby raise implied promises and legal obligations, for the enforcement of which an action lies against such corporation. Bank of Columbia v. Patterson, 7 Cranch. (U. S.) 299; 5 Wheat., supra, 326; 8 Wheat., supra, 338; Bk. of Metropolis v. Gultshlick, 14 Pet. (U. S.) 19; Gottpeid v. Miller, 104 U. S. 521.

To apply the doctrine of “ultra vires ” to the case at bar, therefore, would work a legal wrong, which, as we have seen, is not allowed, and should not be. By the negotiation and sale of the Owen notes by its cashier, Hubbard, indebtedness of the bank has been paid to the amount of nearly $1,500, and the bank is now indebted to Mary T. Owens (whose property was pledged for the payment of the $3,500 loan as well as the previous loan of $2,400), and it should account to her for the amount of that indebtedness, or to the extent of whatever amount was so paid by her securities.

In the view we take of this case under the evidence, as already indicated, the court below should have dismissed the cross-bill of Guv Stapp, receiver, etc., for want of equity, and have granted the relief to plaintiffs in -error, sought by the original bill of complaint, as follows:

First. Order and decree that the note of $1,000, dated May 21, 1880, now canceled and held by the receiver, be delivered plaintiffs in error. Second. Charge the bank with the amount of moneys received from the sale to Haley of the $1,000 note of date February 1, 1884, which was paid by the certificate of deposit, as before stated, also the amount received from Pressley on the sale to him of the $500 note of date February 1,1884, being $443.78 (or the actual amount when ascertained), for which was given his check on the bank at the time of such purchase, as above stated, and from this amount, when ascertained, deduct this overdraft of Jas. F. Owens of $512.04, or for the actual amount of such overdraft, when ascertained, without interest, and also deduct the $280 note of date October 30, 1883, with interest to the date of such decree, and further direct and decree that the note for $280, aforesaid, and the note for $1,000, of date February 1, 1884, now in the possession of such receiver, be canceled and delivered to plaintiffs in error, or one of them, and if upon such adjustment, made as above indicated, any balance shall be found due to plaintiffs in error, or to either of them, order the same paid in due course of distribution, etc., by the said receiver.

For that purpose the decree below on the original and cross-bills is reversed, and the cause is remanded to the Circuit Court for its further action in accordance with the views above expressed.

Reversed and remanded with instructions.


author: Mr. Presiding Justice Sullivan

text:
    Builders Supply and Lumber Company, Appellant, v. Albert Calto et al., Trading as Pronto Mason Cement Contractors, Appellees.
    Gen. No. 42,118.

      Opinion filed June 16, 1943.
    Green, Shapiro, Hatowski & Green, of Chicago, for appellant; Harold J. Green and Jules R. Green, both of Chicago, of counsel.
    Otto Ade Arnston, of Chicago, for appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Builders Supply & Lumber Co., under the Mechanics’ Lien Act (secs. 1-39, ch. 82, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 74.01-74.39]) to establish its right to a lien on the property located at 6157 Leader avenue, Chicago, Illinois, owned by Albert Caito and Margaret Caito, and for a joint judgment against the .Caitos as owners and John Hattam as general contractor for $571.64, which amount represents the balance alleged to be due plaintiff for lumber and other building materials sold to Hattam under an oral contract and delivered to him as ordered, for use in the construction of the'residence that he had contracted to build for the Caitos (hereinafter for convenience sometimes referred to as the defendants). The cause was tried before -the court without a jury and on July 9, 1941 judgment was entered in favor of plaintiff and against Hattáin for the unpaid balance of $571.64. The court found the issues against plaintiff as to its claim for judgment against the Caitos and for a lien against their property and entered judgment in favor of the Caitos on such finding. Plaintiff appeals.

Albert Caito and Margaret Caito, his wife, were the owners of the property in question. They entered into a written contract with Hattam under the terms of which he as general contractor agreed to erect a residence for them on said property for $6,000. Hattam in turn entered into an oral contract with plaintiff, Builders Supply & Lumber Co., whereby the latter agreed to sell and deliver lumber, millwork and certain other materials to be used in the construction of the defendants ’ building.

Plaintiff’s theory as stated in its brief is that “it made fifteen deliveries of building materials to the Caito property to be used in the construction of the residence thereon, which deliveries commenced on December 27,1939', and concluded June 17,1940, and were made pursuant to a contract with Hattam, as general contractor for the Caitos; that not having been paid and having complied with the Mechanic’s Lien Act, it is entitled to a judgment at law against the Caitos, as owners, and Hattam, as contractor, jointly, for $571.64, plus interest from July 17,1940, together with a finding that it has a lien on the Caito real estate which attached as of December 27,1939.”

Defendant’s theory is that “plaintiff failed to comply with the Mechanic’s Lien Act and failed to prove a case by believable and credible evidence.”

While defendants denied both in their original and amended verified statements of defense and their attorney insistently denied at the opening of the trial and during the course thereof, that plaintiff had made any deliveries of materials at all to their building site, the owners were forced to abandon their position in this regard by the overwhelming weight of plaintiff’s evidence to the contrary. Defendants’ attorney now states in their brief that “the last uncontradicted-delivery was made April 22, 1940.” This statement to the effect that all of plaintiff’s deliveries up to and including that made on April 22, 1940 were uncontradicted by defendants upon the trial is simply not true in view of defendants’ verified denials in their statements of defense that any deliveries were ever made by plaintiff and also in view of their attorney’s statements upon the trial that “paragraph 2 denies delivery of any materials to the building”; that “we deny you delivered any materials at all”; and that “there is a dispute on all of them [deliveries] ... in fact, we say the material went into other buildings, was never delivered at our building . . . the stuff was put in some other building and charged to us.”

Since defendants were finally compelled to admit that the first 14 deliveries of materials were made by plaintiff up to and including that of April 22, 1940, the only delivery now in question is that claimed to have been made by plaintiff on June 17,1940. The delivery of June 17, 1940 is crucial because plaintiff’s right to a mechanic’s lien on defendants’ property and to a personal judgment against them is dependent upon whether it made its. last delivery of materials on that date.

What are the facts as to whether such delivery was made? Plaintiff’s truck driver testified that he made this delivery on June 17, 1940; that the general contractor Hattam received and receipted for the materials delivered; and that he (the truck driver) turned the receipted delivery ticket into plaintiff’s office. Hattam, the general contractor, testified that he ordered materials which were delivered by plaintiff’s driver about 11 a. m. June 17, 1940; that he signed a receipt on the driver’s delivery ticket for the materials then delivered; and that he used-said materials on the same day in finishing certain phases of his work on the building covered by his contract. Sam Willens testified that he was manager, billing clerk and price clerk for plaintiff; that he “wrote np all the invoices for delivery himself” and sent the truck driver to deliver the material; that plaintiff’s ledger sheets were made up from the receipted delivery tickets turned in by its truck drivers; and that plaintiff sold $1,071.64 worth of material for use in defendants’ building upon which amount $500 was paid on account, leaving a balance due of $571.64. Plaintiff’s ledger sheet in connection with this account, which was received in evidence, is as follows:

“ALBERT CALTO
6157 Leader Avenue
Date Fol. Debits Dr. Balance Date Fol. Credits
1939
Dec. 27 3005 $125.42
1940
Jan. 10 3076 79.66
18 3128 25.99
22 3136 131.89
31 3193 103.06
Feb. 6 3227 76.91
10 3261 116.05
20 3306 50.69 $209.67
Mar. 2 3354 199.59
7 3377 31.98
20 3450 41.53
22 3460 31.61 514.38
April 6 3565 38.97
22 3665 2.38 555.73
June 17 4367 15.91 ' 571.64
1940
Feb. 24 C357 $500.00

The signed delivery tickets pertaining to the items on the foregoing ledger sheet were also received in evidence and it appears that, notwithstanding Albert Caito’s sworn denials in his statements of defense that none of the materials was delivered by plaintiff to his premises or used in his building, he signed one of such delivery tickets himself.

As opposed to this positive and convincing testimony .and the documentary evidence presented in plaintiff’s behalf, establishing beyond a doubt plaintiff’s delivery of materials on all of the dates indicated on the ledger sheet, defendants offered their, own testimony and that of Mrs. Caito’s father, Thomas Butler. The latter had no knowledge as to whether or not plaintiff made the delivery on June 17,1940, since his testimony discloses that he was not on or near the premises on that date. Albert Caito testified substantially that he moved into the building on April 25, 1940; that no materials were delivered thereafter by plaintiff to his premises; and that neither Hattam or any of his employees appeared at his building on June 17,1940 to do any work. However, he further testified that he worked from 8 a. m. to 5 p. m. on June 17, 1940; and that “when I returned home from work that day I didn’t see if any work was done.”

Margaret Caito testified that no material was delivered to the building by plaintiff after April 25, 1940; that none was delivered June 17,1940; and that neither Hattam nor any of his employees were at the building on June 17, 1940, nor was there any work done after May 15, 1940.

Thus the only support in the record for defendants ’ contention that plaintiff delivered no materials to the building on June 17,1940 is the testimony of Margaret Caito. Her testimony in this regard is uncorroborated, since the evidence discloses that neither Albert Caito nor Thomas Butler knew whether or not such delivery had been made on June 17, Í940. As already shown, it was only when defendants were forced to do so byN incontrovertible documentary proof and the positive and unimpeached testimony of disinterested witnesses, that, they admitted that the first 14 deliveries were made by plaintiff, and with their backs to the wall, as it were, they then made their final stand by attempting to show that the last delivery was not made on June 17, 1940. As already stated,- that was the crucial delivery in this case in so far as plaintiff’s right to a mechanic’s lien against defendants’ property was concerned and upon the establishment of its right to such lien depended plaintiff’s right to a personal judgment against the owners of the property. The proof that the delivery of June 17,1940 was made to their property was just as conclusive as was the proof as to the first 14 deliveries, which defendants were compelled to admit.

Under the facts and circumstances in evidence we are impelled to hold that the finding of the trial court that there was no delivery of materials by plaintiff to defendants ’ building on June 17, 1940 was against the manifest weight of the evidence.

Plaintiff having shown that its last delivery of materials was made to defendants’ property on June 17, 1940, the next question for consideration is whether in bringing this action it complied with the provisions of the Mechanics ’ Lien Act pertinent to subcontractors and materialmen. It is undisputed that plaintiff served a written notice of its claim for lien on the defendants on July 26, 1940, which was well within 60 days after the date of the last delivery of materials as required by section 24 of said act. Section 33 of the Mechanics’ Lien Act, which was in force at the time this action was instituted, provided as follows:

“Petition shall be filed or suit commenced to enforce the lien created by sections twenty-one (21) and twenty-two (22) of this act within four months after the time that the final payment is due the subcontractor, laborer or party furnishing material.”

Plaintiff alleged in its amended statement of claim that under its contract with Hattam, the general contractor, it “was to be paid for all materials delivered to the premises” of defendants “within 30 . . . days after plaintiff had completed its last delivery of materials to the defendants, Albert Caito and Margaret Caito.” There was no denial of this allegation in defendants ’ amended statement of defense and it must therefore be taken as true that the final payment was due plaintiff on July 17, 1940. The last date of delivery being June 17, 1940 and the final payment being due 30 days thereafter, or on July 17, 1940, plaintiff complied fully with the then section 33 of the act, when it filed this suit on October 18, 1940, which was within the four month limitation specified in said section. However, section 33 was repealed without a saving clause and without anything being substituted therefor by an act of the legislature, which became effective July 1, 1941. The judgment herein not having been entered until July 9, 1941, there was of course no final judgment in this case prior to said repeal and therefore the repealed section 33 has no more applicability to the limitation period for the filing of this suit than if said section had never existed. “Where the legislature passes a repealing act and nothing is substituted for the act that is repealed, the effect is to obliterate such statute as completely as if it had never been passed. Merlo v. Johnston City and Big Muddy Coal Co., 258 Ill. 328.”

When the legislature repealed section 33 of the Mechanics’ Lien Act it amended sections 28 and 38 thereof. An interesting discussion as to the effect of the amendment of sections 28 and 38 and the repeal of section 33 of said act is found in “Historical and Practice Notes” under section 28 of the Mechanics’ Lien Act in “1942 Cumulative Annual Pocket Part — SmithHurd Illinois Annotated Statutes.” Such statement follows:

“This section and section 38 were amended and section 33 was repealed at the 1941 session of the Legislature so as to make the practice and procedure respecting the asserting, proving and enforcing of mechanic’s liens on the part of materialmen, subcontractors and laborers the same as in the case of contractors.
“Section 33 required a subcontractor to file his petition or to commence his suit within four months from the date final payment became due. The amendment to section 28 provides that a subcontractor may ‘file his petition and enforce his lien’ within the same limits as to time as are applicable to an original contractor. The result of these amendments is that suits in equity by subcontractors, materialmen and laborers are not barred until the expiration of two years from the completion of the contract or the completion of any extra or additional work or materials furnished. Although the amendment to section 28 refers merely to the time when the subcontractor may ‘file his petition,’ it was doubtless also intended that the amendment should apply to the joint action at law of a subcontractor, materialman or laborer against the owner and original contractor since the repeal of section 33 leaves no other limitation period applicable to such an action.
“The amendments to section 28 also provide that if the subcontractor, materialman or laborer is not paid, then he may either file his claim for lien or file his petition ‘within the same limits as to time and in such other manner’ as is provided with respect to the original contractor. This introduces several innovations. Under the Mechanic’s Lien Act of 1903 a subcontractor, materialman or laborer was not required to file a lien claim except in those instances where, as is provided in section 25, the owner, agent, architect or superintendent could not, upon reasonable diligence, be found in the county in which the improvement, was located or did not reside therein. Except in such instances the filing of claim for lien was ineffective. The subcontractor, materialman or laborer was required, by the provisions of section 24, to preserve his lien by serving a written notice on the owner, agent, architect or superintendent within 60 days from the completion of his contract or his extras, the delivery of his material, or the furnishing of his services. Section 24 was not repealed’ or amended and conseqhently the 60 day notice is still required. However, the amendment to section 28 provides that the subcontractor, material-man or laborer ‘may either file a claim for lien or file his petition and enforce his lien within the same limits as to time and such other manner as hereinabove provided for the contractor.’ Although the amendment respecting the filing of a claim or petition is in permissive language, the provision will doubtless be held to be mandatory in that failure to take action within the time limited will bar the claim.
“It is suggested that in order to be perfectly safe every subcontractor, materialman or laborer seeking to establish and enforce a mechanic’s lien should, in addition to serving his 60 day notice, also file his claim for lien or his suit to enforce the same within four months from the completion of his contract or extras if he desires to enforce his lien to the prejudice of third persons, or within two years if he is satisfied to enforce the lien only against the original owner of the premises.”

We are in accord with the reasoning of the foregoing statement and the conclusions reached therein and hold that the repeal of section 33 and the amendments to sections 28 and 38 of the Mechanics’ Lien Act were effective retrospectively, that plaintiff had two years within which to commence this action after the date of its last delivery to defendants ’ property and that this proceeding was instituted within apt time.

For the reasons stated herein the judgment of the municipal court of Chicago is reversed and the cause is remanded with directions to enter a joint judgment for $571.64 with interest thereon from July 26, 1940, against the owners of the property involved herein, Albert Caito and Margaret Caito, and the general contractor, John Hattam, and to incorporate in the judgment order a finding that plaintiff established its right to a mechanic’s lien, as of December 27, 1939, on the property of Albert Caito and Margaret Caito.

Judgment reversed and cause remanded with directions.

Friend and Scanlan, JJ., concur.


text:
    Dan Manning, Appellee, v. James Kennedy et al., Appellants.
    Gen. No. 42,309.
    Opinion filed June 21, 1943.
    Rehearing denied July 14, 1943.
    David A. Biskind and Abbaham W. Bbttssell, both of Chicago, for appellants.
    Maueice J. Walsh and Geoeebey Fleming, both of Chicago, for appellee.
   Plaintiff brought suit alleging that defendants had maliciously conspired to injure plaintiff by causing him to be discharged from his employment.

The complaint alleged that prior to July 5, 1938 plaintiff was a milk wagon driver and route salesman and member in good standing of the Milk Wagon Drivers ’ Union, Local 753, of the International Brotherhood of Teamsters of the American Federation of Labor; that Local 753 had contracts with most of the milk dealers in Chicago, including the Borden Company, by which plaintiff was employed, which provided that no person could be employed as milk wagon driver and route salesman who was not a member of the union; that the defendants maliciously caused plaintiff to be discharged from his employment and to lose his membership in the union; that by reason of the conspiracy and loss of plaintiff’s membership in the union plaintiff was discharged by the Borden Company and has ever since, by reason of the acts of the defendants, been unable to procure employment. Plaintiff asked for judgment against the defendants of $25,000.

The case went to trial before a jury, which returned a verdict finding defendants guilty and assessing plaintiff’s damages at $15,000. Subsequently, upon defendants’ motion for a new trial, which was denied, plaintiff remitted $7,500 from the amount of the verdict, and judgment of $7,500 was entered against the defendants, from which they appeal.

Plaintiff says the evidence shows he was a member of the Milk Wagon Drivers’ Union, Local 753, for about 24 years; that he paid all his dues and in July, 1938 was not delinquent in the payment of any special assessment and had not violated any rule or by-law of the union. The by-laws of the union (section 13) provide that “All assessments and fines shall be charged as dues and must be paid within thirty days after the levying of said fine or assessment but the Executive Board may further extend the time if considered advisable.” Manning was called home on May 21, 1938, due to the illness of his mother-in-law who died May 24; plaintiff remained at home for two weeks due to this illness and death; upon his return to work he was asked to pay union dues of $1.50 a week for the two weeks he was away and received no pay; he claimed that he. was not required to pay for the time he did not work and was not paid, and asked a Mr. Aeree, an employee of Borden Company, to obtain a ruling as to whether plaintiff was required to pay this assessment. Aeree collected the dues and assessments from the members. Aeree apparently never obtained a ruling on the point made by Manning, or at least never informed Manning that he had obtained a ruling from the officials of the union.

On the morning of July 6 plaintiff brought with him a check for $10 payable to the order of the union, as he had agreed to do the day before, and offered it to defendant Eichards, and then to Kennedy in payment of his dues in controversy. They refused to receive the check, although it was more than sufficient to pay all assessments levied on Manning including the two weeks he was away and not working.

Defendants argue that it was shown that plaintiff urged other members not to pay similar assessments and to disobey the union officials with reference thereto. Defendants introduced in support of this claim a witness named Sinkay, who testified that he heard Manning curse Kennedy and use abusive language toward him, urging the other employes to pay no attention to Kennedy. There were various matters which would lessen the credibility of Sinkay’s testimony. Sinkay admitted, that he did not know Manning. At the time of this alleged conversation Manning had the check with him to pay the assessments and would hardly curse Kennedy, as Sinkay says he did, especially when Kennedy is a very large man, 6 feet tall, while Manning is a small man. The same criticism can be made of defendants’ witness Swammie. He testified that when he arrived at the barn on July 6, Kennedy was asking Manning if he wanted to pay his assessments; that Manning refused, abusing Kennedy and telling the other men not to go back to work. All this happened while Manning had the check with him with which to pay the assessment. There were other witnesses present at the time and they did not testify that they heard Manning abuse Kennedy and tell the men not to pay their assessments and to pay no attention to Kennedy. In any event the testimony of these witnesses presented a question of fact, and the jury, hearing and seeing them, evidently did not consider them credible.

The union by-laws provide as follows:

“Sec. 33. The Executive Board shall try all members whom charges have been preferred against, and report their findings at the next regular meeting of the Union.
The Executive Board should attend all meetings of the Teamsters’ Joint Council.
Sec. 43. Every member of this union shall be entitled to a fair and impartial trial by the Executive Board for all offenses involving fines, suspensions or expulsion. If fined by the Business Representative, he may appeal his case to the Executive Board.
Sec. 44. No member shall be placed on trial unless charges are preferred duly specifying the grievance and submitted to the Executive Board in writing and signed by two or more members. When this is done, the Secretary-Treasurer shall so notify the accused and the witnesses to appear before the Executive Board of the union, allowing reasonable time for the accused to prepare his defense. , Should the accused not appear for trial on the date specified in such notice he shall be fined, suspended or expelled as the Board may direct.”

These by-laws provide that no union member shall be placed on trial unless charges are preferred against him, specifying the grievance and submitted to the Board in writing, signed by two or more members. The Executive Board shall then try all members against whom such charges have been made and report their findings at the next regular meeting of the union. All the Board had the power to do was to hear the evidence and report its findings.'

' It was proved beyond a doubt that the Executive Board did not observe these by-laws. It did not act on any written charge nor report its findings to the union.

There was-hardly the semblance of a trial. Kennedy made a verbal statement in which he charged Manning with conduct harmful to the union; in trying to persuade members to drop out of the union. Steve Sumner, a long-time member of the Executive Board and evidently a man in whom the members had confidence, attended this meeting of the Executive Board and testified that after Kennedy said Manning would not pay his assessments a motion was made to expel him and that five of the members voted to expel him and that he (Sumner) had voted “No.”

A motive for the charge made by plaintiff that Kennedy was scheming to punish him appears from a conversation in the spring of 1938 at a union meeting when Kennedy approached Manning and told him that he, Kennedy, was told that Manning was trying to start a movement for an election of union officers. Manning denied this and asked Kennedy who had told him this, but Kennedy made no reply. This conversation was not denied by Kennedy at the instant trial.

The union had a contract with Borden Company which provided, among other things, that if any member of the union should “be suspended or expelled from the union for good cause, the employer agrees to discharge such person within fifteen days after receiving due notice from the officials of the Union.” And Article 19 provides that “Should any controversy arise not provided for in these Articles, it shall be submitted to a committee of five for arbitration, two to be selected by the first party, two by the second party, and the fifth by the first four. During such time as the matter is pending there shall be no lockout or strike! The decision of said committee to be final.”

These provisions were ignored by the defendants. Borden had not received any notice advising that Manning had been suspended or expelled. It was admitted that Kennedy called a strike in Bordens although Manning had offered his check in payment of the assessments said to be due from Mm, which was refused with violent abuse of Manning by Kennedy. It was amply proved that it was at the instance of Kennedy that Manning was discharged. Kennedy testified that he talked with one of the officials of Borden for an hour seeking to persuade him to discharge Manning, which was finally accomplished by calling a strike on Borden.

The jury could properly find that in their conduct towards plaintiff the defendants were moved by malice ; that they wished to damage him and deprive him of the means of livelihood.

Judgments- against defendants, who as members in control of a union were found guilty of conspiracy to maliciously expel a member from a union, have been upheld in Eschman v. Huebner, 226 Ill. App. 537, where the facts are very much like those here. Eschman brought suit alleging a malicious conspiracy to expel him from the union and to lose his job; subsequently at a convention of the union plaintiff made an effort to bring about the election of a candidate opposing Huebner, but without success; this made Huebner angry and he made a threat to “get” Eschman; Eschman was subsequently expelled from the union and discharged from employment; he brought suit alleging this was accomplished through a malicious conspiracy and upon trial he had judgment. The court in its opinion summarized the situation by saying that officials of such a union “are liable in damages, if, in revenge against a member who opposes them, they maliciously proceed to trump up charges against him, and thus cause him to lose his employment and bring about his discharge by an employer who had no complaint against him.” Similar cases are Campbell v. Johnson, 167 Fed. 102, and Brennan v. United Hatters, 73 N. J. L. 729. It is unnecessary to cite the many other cases to the same effect. The right to bring an action of malicious conspiracy such as that in the instant case has been so well established in many decided cases that it is unnecessary to discuss this point at length.

Defendants say the verdict is excessive and was caused by prejudicial conduct on the part of the trial judge and plaintiff’s attorney. The record shows that no such claims were made or argued on the hearing of the motion for a new trial. Neither do we find any objections made by defendants’ counsel during the trial to any remarks by the trial judge or plaintiff’s attorney.

Defendants attempt to make the point that by plaintiff’s own admission he knew he was approximately eight weeks behind in making payment of his assessments. ' Plaintiff did make some remark which might be construed as an admission of this, but he later testified that he had checked the Borden records, which showed that he worked until May 21 when he was called home on account of the death of his mother-in-law and that he returned on June 5; that before he was called home lie had paid the assessment for that week.

The verdict for $15,000 was not excessive considering the damages suffered by plaintiff. He was 45 years old when suspended; he had been a member of the union for about 24 years and always in the milk trade; after his suspension, although he has been reinstated, he has never been able to procure another job with another milk company; no dairy would hire him for fear the union might cause them trouble; he was earning a total of about $2,600 a year when he was suspended, although for a short time he had a political job with its uncertainties. At the suggestion of the trial court plaintiff remitted the verdict to $7,500. The jury had a right to give exemplary damages, and the amount to which the verdict was reduced would hardly compensate plaintiff for the actual damages sustained by him.

Complaint is made of some of the instructions given by the court, but these are without merit. It is said plaintiff’s instruction No. 5 assumes that defendants, or any one of them, wilfully or maliciously procured the discharge of plaintiff. The instruction is predicated upon a belief by the jury that a preponderance of the evidence so shows. The instruction does not say that the defendants were guilty of anything. Other instructions given at the request of plaintiff are criticized as containing implications that defendants were guilty of malice and plaintiff therefore entitled to exemplary damages. At the request of the defendants, instructions of a similar import were given — Nos. 16, 17 and 18. As was said in Jacoby v. Stark, 108 Ill. App. 630, the court might reasonably be led to believe when both sides submitted similar instructions as to malice or exemplary damages, that it was conceded to be a proper case for the consideration of these factors.

Plaintiff’s pleadings were consistent and conformed to the proof and the evidence. Defendants argue that they were not guilty of a conspiracy. This was a question for the jury. In Doremus v. Hennessy, 62 Ill. App. 391, affirmed 176 Ill. 608 the court said that in such civil actions the conspiracy is not the gravamen of the charge but may be pleaded and proved in aggravation of the wrong of which the plaintiff complains and enable him to recover against all of the conspirators as joint tort feasors. Defendants went to trial upon all of the counts, including the additional count 3, which named James Kennedy only. The defendants were found guilty under counts 1 and 2. The verdict was manifestly supported by the evidence. All of the defendants were properly found guilty and, as there were no procedural errors appearing upon the trial, the judgment for $7,500 is affirmed.

Affirmed.

The foregoing opinion prepared by Mr. Justice McSurely is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.

Judgment affirmed.

Matchett, P. J., and O ’Connor, J.


author:
Mr. Presiding Justice Burke
      Mr. Justice Hebel

text:
    Ida B. Tennes and First National Bank of Chicago, Executor of Estate of Mont J. Tennes, Deceased, Appellants, v. Joe Tennes, Appellee.
    Gen. No. 42,277.
    Opinion filed June 30, 1943.
    W. F. McLaughlin, of Chicago, for appellants.
    Arthur J. Donovan, of Chicago, for appellee; John J. Sullivan and Charles E. Heckler, both of Chicago, of counsel.
   On Rehearing.

Mr. Presiding Justice Burke

delivered the opinion of the court.

On March 21, Í940 Ida B. Tennes and Mont J. Tennes filed their two count amended complaint in the superior court of Cook county against Joe Tennes. On April 2, 1941 they filed an amendment consisting of two additional counts. The first count alleges (1) that on June 13, 1938 the defendant, Joe Tennes, was managing and operating a motor vehicle on and along route 45 in the State of Wisconsin, about eight miles south of Marion, traveling at a speed of approximately 45 miles per hour; (2) that Ida B. Tennes was riding in the automobile of defendant as an invited guest; that she had nothing to do with the driving of the vehicle and had no control or direction over the operation of the vehicle or its driver; (3) that she was then and there exercising due care and caution for her own safety; (4) that the defendant then and there being tired, exhausted and sleepy, knew and was conscious of the fact that he was about to fall asleep ; that if he did fall asleep while operating his automobile it would probably result in injuries to others, and particularly to the plaintiff; that with an entire absence of care for the life, person or property of others, and with a conscious indifference to the surrounding circumstances and conditions and with wilful disregard of the consequences, he wilfully and wantonly drove his automobile at a speed of about 45 miles an hour; that while so operating his automobile, the defendant fell asleep, thereby losing control of his automobile, resulting in its running off the road, turning over several times and injuring her; (5) that in consequence of the negligence aforesaid, and as a direct and proximate result thereof, she, Ida B. Tennes, was greatly injured. She asked judgment in the sum of $25,000. The second count was filed in behalf of Mont. J. Tennes and repeated the allegations of the first count. It then added that on June 13,1938 Mont. J. Tennes was the husband of Ida B. Tennes and continued to be her husband; that he was obligated to furnish her support and necessaries, and that because of the negligence of the defendant he was compelled to lay out and expend $8,500 in endeavoring to have her cured. He asked judgment in the sum of $10,000. The third count in behalf of both plaintiffs repeats the allegations of paragraphs 1, 2 and 3 of the first count, and also alleges that under the law of the State of Wisconsin it became and was the duty of the defendant to operate, control and manage the motor vehicle' with ordinary and reasonable care to prevent injury to the plaintiff, Ida B. Tennes, but that the defendant so negligently drove and operated his automobile that as a proximate result of said negligence and improper operation, the automobile went off the road and overturned; that prior to and at the time aforesaid defendant was operating his automobile without conscious possession of his faculties and was then and there asleep. In this count plaintiff repeated the allegations as to the injuries suffered. In the fourth count plaintiffs repeated and realleged paragraphs 1, 2, 3, 4, 5 and 6 of count 2, and also repeated the allegation last above quoted from count 3. Defendant answered, admitting that he was operating a certain motor vehicle on route 45 in the State of Wisconsin and denying all other allegations. He further alleged that the plaintiff, Ida B. Tennes, was guilty of wilful and wanton conduct “which contributed to the cause of this accident.” Before the trial, Mont J. Tennes died, and the First National Bank of Chicago, executor of his estate, was substituted as a party plaintiff. A trial before the court and a jury resulted in a verdict finding the defendant not guilty. At the close of all the evidence plaintiff moved the court to instruct the jury to return a verdict finding the defendant guilty, leaving only the question of the damages to the jury. This motion was overruled. Motions by the plaintiff for a judgment notwithstanding the verdict and in the alternative for a new trial, were likewise overruled, and judgment was entered on the verdict. This appeal followed.

Joe Tennes, the defendant, called by plaintiff under section 60 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.060], testified that he was a nephew of Mont J. Tennes, deceased; that on June 13, 1938, he invited his aunt by marriage, Ida B. Tennes, to ride with him from Chicago to Eagle River, Wisconsin, where his aunt and uncle had a summer home. He had been driving an automobile since 1935. They left Chicago about 9 o’clock in the morning and had lunch at a hotel in Pond du Lac, Wisconsin. After lunch they continued to drive on route 45. He testified that he was driving at a speed of between 35 and 45 miles an hour; that he did not drive over 45 miles an hour at any time; that Mrs. Tennes was sitting next to him in the automobile; that they were not engaged in conversation; that “when we got some place around Marion, Wisconsin, — I don’t know just how far it was — I had been feeling rather tired and drowsy, but not to a point I hadn’t been that way before while driving an automobile, and the only thing I vividly remember .at that point is I evidently dozed for a minute. The next thing I remember I heard Mrs. Tennes say, ‘Joe, Joe,’ and with that it was just like being on a very rough road. Then, of course, the next thing I was knocked unconscious and woke up later on the side of the road. I didn’t have any sensation of hitting anything. I think we ran off the right hand side of the road, the car was on the right hand side when I came to. Mrs. Tennes was lying on the side of the road.” He further testified that they waited until an ambulance came, which took them to a hospital at Clinton-ville, where they were treated by a physician and remained overnight. He stated that he was knocked unconscious at the time of the accident. He was then examined by his own attorney and testified that “I was going to Eagle River for a visit and a week’s vacation. I was going up as a guest of my aunt and uncle. Usually she would drive up there with one of her sons or go by train. I don’t believe she drives herself, she usually drove up with some member of .the family. They had cars and someone to drive them. On this occasion I asked her to drive with me. I was going up. I don’t believe I ever drove her up there. I suppose there were times when I drove her around Eagle River, but not very much.” The attorney for plaintiff then objected to the attorney for the defendant continuing the examination of the defendant without making the defendant his own witness. At this juncture the attorney .for plaintiff stated that he understood the attorney for the defendant was calling the defendant as his (defendant’s) witness, and that he had no objection. The attorney for defendant answered: “Oh, no,” and continued to examine his own client. In this examination by defendant’s attorney, the defendant further testified:

“My relations with my aunt and uncle were very friendly. My aunt did not indicate the rate of speed at which she wanted to go. We were in no hurry. I had a small motor car. We had no reason to drive fast, so we stayed at 35 to 45 miles an hour. We might sometimes have hit 50. At the time of the accident, I was doing from 35 to 45. I was perfectly sober. I was perfectly alert as I was driving along the road. I do not recall having passed a vehicle just before the accident. I had passed a number of vehicles during the day.

On further examination by his own attorney, defendant testified as follows:

“Q. Well were you just turning in from passing a truck? Had you just turned in from passing a truck at the time you lost control of this car?
“A. Well, as I said, I have no sensation of losing control. The only thing I remember is when I was called to and at that time I was like on a rough road. I have no recollection of losing control, of seeing myself go off the road. I had slept well the night before. I got up at 7 o’clock that morning, it was a bright warm day.
“Q. Do you remember you stopped in back of a truck at a point where the road was definitely obstructed by a barricade on the road there ? ’ ’ An objection to this question on the ground that it was leading was overruled.
“Q. Now the question I would like to ask you is whether yon recall going back along the road, when the road was being repaired and do you recall you just had to crawl along there for some considerable distance, maybe 1000 feet or so, before you reached the point where you had the accident?
“A. No, I can’t say I do. I don’t remember any particular obstruction in the road. It was clear as I recall. I haven’t any clear recollection of any one truck. I don’t remember anything after my aunt called to me: ‘Joe, Joe.’ As I said it was just like I was on a very rough road. I don’t know where I was. I don’t know whether I was on the pavement or off when she said, ‘Joe, Joe.’ Up to that time I was driving straight along the pavement as far as I know. I haven’t any idea how long I was unconscious.”

On re-examination by attorney for plaintiff, the defendant was asked: “And you went to sleep at the wheel at that point?” The attorney for defendant interposed an objection to the question, which the court sustained. Forest M. Cline, an X-ray technician, identified X-ray pictures of Ida B. Tennes. He also produced X-ray films, receipted bills and canceled checks showing payment by Mr. Tennes. Dorothy Tennes, a daughter of Ida B. and Mont J. Tennes, testified that she saw her mother at Mercy Hospital, Chicago, the day after the accident; that her mother was in bed, bruised, her face discolored and swollen, and her leg in a cast; that her mother remained in the hospital until the second week in August ; that trained nurses were in attendance 24 hours a day; that her mother was brought home from the hospital about August 11th and remained in bed at home until the end of August; that at home two trained nurses were in attendance for 12 hours a day; that witness’ brother then took their mother to Eagle River in an automobile from which a seat had been removed and in which a cot had been installed; that the mother remained in Eagle River until about October 30th; that she was driven home in the same car, and shortly thereafter returned to Mercy Hospital, where she remained for about a week; that the knee was held together by a screw; that during this stay in the hospital she had trained nurses on eight hour duty; and that the patient then returned home, where she was attended by a trained nurse until the early part of December. This witness then produced her father’s canceled cheeks issued for payment of medical services.

Dr. Michael F. McGuire, the attending physician testified that he had known Ida B. Tennes for about 15 years. On or about June 13, 1938 he was told that Mrs. Tennes had an automobile accident in Wisconsin. He drove over there that evening and saw her in a hospital. He obtained a history of the accident and saw an X-ray of her leg. She was in bed in considerable shock. She had received first aid treatment and was in pain. Her knee was swollen, her pulse fast and her blood pressure considerably fallen. She was pale and under the influence of opiates. She had received some shock treatment. She had a fracture of her left collar bone, and after she was brought back to Chicago, X-rays disclosed a fracture of two ribs. She had a deep laceration of her right leg, and suffered hemorrhages all through her body. She was black and blue from her knees to above her thighs, particularly above the left leg. The right leg was also bruised. She was taken to Mercy Hospital, where she was X-rayed and consultations were held. This witness identified the X-rays, described the fracture of the knee and detailed the treatment and operation performed by Dr. John Claridge at which the witness assisted. Mrs. Tennes was at Mercy Hospital twice. Dr. McGuire testified further that under the circumstances of the family, a charge of $10,000 would not have been unreasonable.' He identified a check for $1,250 which he received for his services, and a check for the same amount which was received by Dr. Claridge, also a check for $250 received by Dr. Chandler. He further testified about the payment of nurses’ bills and two bills from the hospital totaling $771.20. He had known and treated Mrs. Tennes before the accident. She had high blood pressure before the accident. He was asked as to whether it would be safe for Mrs. Tennes to come to court to testify. An objection to this question was sustained. Dr. Claridge and Emmy Carlson, and a masseuse, also testified.

Defendant’s motion for a directed verdict was denied. Thereupon, defendant put in evidence the deposition of plaintiff, Ida B. Tennes, taken by defendant’s attorney previous to the trial. She deposed that she was the aunt of defendant; that she was and continued to be friendly with him; that he still visited her at her home; that she was in his car (in which she had before ridden) when she got hurt; that he invited her to drive with him to Eagle River and she accepted; that she had no reason to be concerned about his driving ; that she had ridden with him before, and that after lunch they resumed their way to Eagle River. She continues:

“We were going between 40 and 45 miles an hour which satisfied me. Just before the accident we came by a truck on the road and went right in front of it. We were going about 40 miles an hour when we came to the truck and went around it. We were on the right hand side of the pavement and Joe swung to the left and then he came back in front. We had gotten quite a way ahead of the truck before he ran off the road. I couldn’t remember how far it was, there are no blocks up there, just a plain field. I know we did pass a truck and that shortly after the accident occurred. I felt a vibration on the right side, and that is all I remember. We weren’t off the road when the accident happened. I think we hit something. I could feel the vibration of the wheel on the right side of the car. When I felt the vibration I said, Oh, Joe, and that is all I remember. I think we hit a stone. I don’t know. I haven’t the slightest idea whether the car tipped over. I was out I guess. When I came to, I was lying on the grass, and the truck man was standing over me. He told me the car turned over three times. I couldn’t tell you whether there was a ditch along the road. We didn’t hit another car. The road was clear, except for the truck that was in back of us. I was taken to a hospital at, I think it was Clintonville.”

The witness then related her return to and stay at Mercy Hospital, her treatments by Doctors McGuire and Claridge, and of trips she had since taken. She then said:

“This foot is stiff. I will never be able to straighten this out. My knee is stiff, I cannot kneel down. I cannot get in the bath tub. I have to sit down. This is as much as I can bend it. When I stand up, I can straighten it, but I cannot bend it. My collar bone was broken and I could not raise my hand. I am walking around now. I had three ribs broken and my jaw fractured and the inside of my mouth all cut. I thought at the time I had a broken nose, but the swelling went down. My present difficulty is the stiffening of my knee. That is about as much [movement] as I can get.
“Q. About a right angle, just so you can sit down!
“ A. You can see where the bone was put together; I had a screw in that. I certainly had a tough time of it. All the bills were paid by my husband. My nephew didn’t pay any of them. My nephew came to see me after I was hurt. For about six weeks I could not see anybody. He still visits, there never was any bad feeling between us. The accident happened June 13, 1938. In 1938 my nephew visited me at the hospital. No one wás at Eagle River in the summer of 1938. My nephew was at Eagle River as a guest for about 10 days in 1939. He went up every summer; he was there in 1940. This summer he was up there while my husband was there. I didn’t pay any attention to the hospital or doctor bills. My husband took care of everything. My husband is Mont J. Tennes.”

Two additional witnesses were called by the defendant. Albert Wiesman testified as follows:

“I live in Antigo, Wisconsin. I am manager of the Motor Express, a freight transportation company. I am 41 years of age. On June 13,1938 I was transporting my furniture from Marion, Wisconsin to Antigo, Wisconsin, in a Ford V-8 truck. My son about 11 years of age was with me. I saw the accident of Ida B. Tennes. The county was oiling the road, Shawano County. Only the left side of the road was open, the southbound side. I had to wait about 10 or 15 minutes before I could turn over onto the southbound side of the road and proceed. The car of the defendant, Joe 'Tennes, came up behind me. ■ After the traffic had cleared southbound, we proceeded northward. I traveled north at between 20 and 25 miles an hour. This highway has a long curve that turns to the left and is an oiled road. It was a regular road, the oil had dried up leaving the residue on top. The road is oiled wide enough so that two cars can travel. I noticed the car (of Joe Tennes) was in back of us. The car passed my truck and it swung over to the right and
hit some loose gravel and it seemed to get out of control of the driver. He hit the farmer’s driveway and she tipped over there, she tipped twice, and the lady flew out, and then she (the car) struck a big rock and landed on top. The rock was about 4 feet in diameter and marks a driveway into a farm. I would say the (Tennes) car was going between 30 and 35 miles an hour when it passed me and came back in front. The road there is oiled just wide enough for two cars, on the edges is loose gravel, so that they can grade that back into the road when necessary. It seeps back into the road. When he (Tennes) struck the gravel on the road, his car turned around to the right. His car got off the road. He was trying to put her back on the road. The culvert was just a short distance from where the car slid off. When it hit the culvert, the car turned over. I pulled my truck over to the left so I wouldn’t hit him, and I got out and helped them, and took the gentleman out of the car. The lady was out of the car, lying on the bank. The man was in the car, unconscious. I pulled him out and laid him on the grass. By that time another car pulled up and I had him turn around and go call an ambulance from Marion. They were taken to the Clintonville Hospital. The accident happened about 3 o’clock in the afternoon. I don’t know anybody connected with the transaction. When you hit gravel you lose control of your car, if you are mot very careful.” Cross-Examination. “I have been in the transportation business about 15 years. We operated 2 trucks between Clintonville and Antigo, that was one truck I was operating at the time. Then we had another truck operating between Antigo and Green Bay. I talked recently to Mr. Bloomingston about being a witness here. He is the only person I talked to, except a representative of the Insurance Company. I didn’t have to slow up to prevent hitting him. I would say he was between 25 and 30 feet ahead of me when he made his right angle turn. I turned to my left.”
“ Q. Describe tbe turn he made at tbe time be struck tbe gravel.
“A. He made a partial right turn. At that time be made tbe turn, be bit tbe gravel. Tbe accident occurred 100 or 200 feet ahead of me. It was in plain view.”

Leo Wiesman testified as follows:

“I live in Antigo, Wisconsin and am 14 years old. I was with my father when this accident occurred. We stopped before tbe accident, they were oiling tbe road. Another car pulled up behind us when we stopped. Tbe southbound cars kept on going, we bad to . wait until they got by. After all these (southbound) cars passed, we went on. A car passed us, and it seemed like it bit some loose gravel on tbe side of tbe road and be tried to pull it back on tbe road, but it was too late because be bit a culvert and tbe car flew around in tbe air, it kind of bumped around to tbe right. It bumped into a culvert. He hit tbe shoulder before be bit tbe culvert. Then tbe car flew up in tbe air and turned around 3 times. We turned over to tbe left of the road and went over to tbe car, took tbe man out and laid him on tbe grass, and be came to, and we took care of him tbe best we could. It was a nice day. ’ Cross-Examination. ‘ ‘I talked this matter over with Mr. Bloomingston and my father.”

At tbe close of all tbe evidence, both plaintiff and defendant moved for a directed vérdict and tbe motions were denied.

Tbe contention of plaintiffs is that inasmuch as tbe defendant testified to a state of facts, which, if true, destroyed bis grounds of defense, and because there was no evidence that tbe plaintiff Ida B. Tennes was guilty of contributory negligence, the court should have ordered a verdict of guilty as to tbe defendant, leaving to tbe jury only tbe question of damages to be awarded each plaintiff. Defendant asserts, and we agree, that the verdict of a jury should not he set aside unless it is not supported hy the evidence or is contrary to the manifest weight of the evidence, and that on appeal the appellee is entitled to all the favorable inferences legitimately arising from the evidence. Attorney for defendant points out that the defendant slept well the night before the accident, he got up at 7 o ’clock in the morning; started on the trip at 9 o’clock; had an ordinary lunch at noon and met with this accident at 3 o’clock in the afternoon; that he drove his automobile around a truck a few seconds before the accident; that there were no circumstances which would support a probability that defendant would fall asleep at the wheel of his automobile in the middle of the afternoon; that from the testimony of plaintiff and two disinterested witnesses, the jurors were warranted in believing that the accident was proximately caused by the automobile hitting a stone or runnitig into loose gravel and not by any alleged dozing on the part of defendant. Defendant’s attorney also challenges the statement that defendant testified that he fell asleep, contending that the evidence shows defendant expressed a supposition or surmise that he evidently dozed for a minute, and defendant insists that recovery cannot rest upon speculation, conjecture or surmise. Plaintiffs concede that a jury’s verdict will not be set aside unless it appears from the record that the find-, ings are not supported by the evidence, or that they are contrary to the manifest weight of the evidence, but insist that these principles have little application to the case at bar, where the verdict is supported, if at all, by incompetent evidence. The position of defendant’s counsel is that the defendant did not testify that he dozed for a minute, that the defendant merely expressed a supposition that he did so. Defendant testified that the only thing he remembered vividly was that “at that point I evidently dozed for a minute. The next thing I remember was Mrs. Tennes saying, ‘Joe, Joe,’ and that it .was just like being on a very rough road. Then, of course, the next thing I was knocked unconscious and woke up later on the side of the road. I didn’t have any sensation of hitting anything.” The adverb “evidently” is defined in Webster’s New International Dictionary, second edition, as follows: “In an evident manner, perceptibly, clearly, obviously, plainly.” Corpus Juris Secundum, vol. 32, page 1140, defines “evidently” as “in an evident manner, clearly, obviously, plainly,” and states that “the term is employed to express the idea of full proof-conviction.” Defendant states that the dozing was the only thing he remembered vividly. We find that the defendant testified that he went to sleep just prior to the accident. It is apparent that the attorneys for both parties considered defendant’s testimony as a positive statement that he went to sleep, because the court sustained an objection by defendant’s counsel to the following question put by plaintiffs’ attorney to the defendant, “And you went to sleep at the wheel at this point?” This was a proper question unless the court and counsel considered that the proof of defendant having gone to sleep while driving was so strong as to make further proof on the subject of surplusage. A perusal of the portion of the transcript showing the argument made to the jury by defendant’s counsel shows that he recognized that his client had testified that he (defendant) went to sleep at the wheel.

The attorney for defendant made the following statement in his argument:

“He is not her attorney, he is my client’s attorney too. . . . My client comes on the witness stand here and tells you a story which is grotesque. . . . All right, what does this mean? It was entirely different than three other people tell the story. . . . By the same token, you don’t have to tell twelve intelligent people, such as I am looking at, just what the low down in this case is. ... I didn’t even pnt him on. I didn’t even put my client on. He put on my client. Well, if you swallow that it is all right with me, ladies and gentlemen.”

We agree with plaintiffs that the clear and natural inference of this argument was that the defendant had been committing perjury, and that he had entered into a conspiracy with the plaintiffs. Obviously defendant’s attorney was complaining to the jury of the testimony about his client having gone to sleep. The parties are in agreement that it is only where a party testifies clearly and unequivocably to a fact which is peculiarly within his own knowledge that such testimony may be considered as a judicial admission. (Harlow v. Leclair82 N. H. 506, 136 Atl. 128; King v. Spencer, 115 Conn. 201, 161 Atl. 103; Kanopha v. Kanopha, 113 Conn. 30, 154 Atl. 144.) It is apparent' that Joe Tennes, in testifying that he went to sleep at the wheel, testified to a fact peculiarly within his knowledge. If Mrs. Tennes had known he went to sleep, she naturally would have wakened him. The defense witnesses, Albert and Leo Wiesman, did not testify that he went to sleep, or that he did not go to sleep. It would have been impossible for them to honestly testify one way or the other on this subject. This is a case between the plaintiffs and the defendant. The fact that the defendant had a contract with an insurance company could not affect the rights of the plaintiff. The issues in the case were made up by the pleadings. If Joe Tennes had defaulted, plaintiff would have obtained a default judgment against him. A default signifies a confession of the complaint. As defendant could admit the cause of action stated by suffering a default, it is obvious he may admit during the trial the facts making out a case against him. The defendant is a person of average intelligence and in possession of his mental faculties. He testified that he fell asleep while driving the car. Defendant is bound by his testimony. The evidence affirmatively shows that Mrs. Tennes was in the exercise of ordinary care for her own safety and there was no evidence tending to show that she was guilty of contributory negligence. The evidence clearly shows that defendant was guilty of gross negligence and that- such negligence was the proximate cause of the injuries suffered. So far as the liability of the defendant is concerned, there was no issue of fact to be determined by the jury and the court should have directed a verdict for the plaintiff.

Plaintiff insists that whether or not defendant carried liability insurance was irrelevant. In-his argu-' ment to the jury Mr. Bloomingston, defendant’s attorney, said, among other things:

“Now there are some things that nobody but an attorney would swallow; and if he swallowed them it would only be because he was kidding himself. Now one of tjie things is this: He is not her attorney, he is my client’s attorney too. You have probably discovered that. If you haven’t, why you ought to. My client comes on the witness stand here and tells you a story which is grotesque. [Then he proceeded to read at large the deposition of Mrs. Tennes, which of course was improper as the court ruled.] "What was the purpose of telling that story. It was entirely different than three other people tell the story. Well, they say you don’t have to whistle to a dead horse. By the same token you don’t have to tell 12 intelligent people, such as I am looking at, just what the low down in this case is. Mr. and Mrs. Mont Tennes is suing a man that is an insurance broker for large sums of money.”

It is apparent from defendant’s brief that Mr. Bloomingston, ' the attorney who represented defendant in the trial, court, was designated as his attorney by virtue of the terms of an insurance policy issued to the defendant. However, so far as the plaintiff and thé court were concerned, Mr. Bloomingston was representing the defendant and not the insurance company. Plaintiff was not a party to the insurance contract. The record presents the anomalous situation of a lawyer questioning the veracity of his own client. The effect of this was to inject a false issue into the case. The insurance company, without any formality of pleading or appearance, injected itself into the case in order to defend itself against liability under the policy that it issued to defendant. The law affords protection to insurance companies against fraud, but they cannot proceed in the manner disclosed by the record in this case.

Plaintiffs state that the court erred in refusing to give the following instruction:

“The court instructs the jury that the driver of an automobile is bound to keep a practically continuous look out while driving, but no such duty is imposed upon the passenger or guest. In the absence of knowledge of danger or facts which would give her such knowledge, a passenger or guest may properly rely on the driver to attend to the driving of the automobile. The primary duty of care for the safe operation, rest upon the driver. However, a guest is not relieved from the exercise of such care for her. own safety as is reasonable under the circumstances.”

We are of the opinion that under the facts of the case, this instruction should have been given.

In his petition for rehearing defendant states that the same act cannot be held to be both wilful and wanton conduct and negligence, either as a matter of law or a matter of fact,'citing Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, where the court said, (540):

“Negligence and willfulness are as unmixable as oil and .water. ‘Wilful negligence’ is as self-contradictory as ‘guilty innocence.’ ”

The Hamler case points ont that “negligence is merely a word of denial and that ‘care’ is the positive word.” In the recent case of Bartolucci v. Falleti, 382 Ill. 168, the court said that negligence and wilful and wanton conduct are not synonymous, citing the Eamler case. It is interesting to note the following observation in the Eamler case (538):

“The Supreme Court of Wisconsin also holds that no mere degree of carelessness or inadvertence constitutes gross negligence, (Decker v. McSorley, 116 Wis. 643), and that the term ‘gross negligence’ signifies willfulness, involving intent, actual or constructive, to cause injury, and if one is guilty of willful misconduct causing injury to another the former’s fault is denominated gross negligence. (Rideout v. Winnebago Traction Co., 101 N. W. Rep. 672.) ”

Our Supreme Court in Streeter v. Humrichouse, 357 Ill. 234, said (238):

“Ill-will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness.”

From the case of Smithers v. Henriquez, 368 Ill. 588, it appears that an action grew out of an automobile accident and that the declaration consisted of three counts, the first and third charging negligence and the second wilful and wanton misconduct. Judgment for plaintiff in the sum of $7,500 was entered upon a general verdict. The judgment was affirmed. Apparently, the attorneys and the Supreme Court in that case did not feel that there was anything inconsistent in sustaining a judgment based upon a verdict finding the defendant guilty upon the counts charging both wilful and wanton misconduct and negligence. The State of Wisconsin does not have a guest statute as does the State of Illinois. Under the law of Wisconsin all that plaintiff was required to prove was that Mrs. Tennes was in the exercise of due care for her own safety at and about the time of the occurrence, and that the defendant was guilty of negligence which was the proximate cause of the injuries and the elements of damages. Defendant testified that he had been feeling rather tired and drowsy and he admitted that he fell asleep while driving. In Blood v. Adams, 269 Mass. 480, 169 N. E. 412, 413:

“In the exercise of ordinary care, an operator of an automobile must be able to anticipate what is coming, to see what is present, and to remember what is past. Voluntarily to drive an automobile on a public street at any time of day or night with eyes closed or to yield to sleep while operating such kind of dangerous machine as is an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care and is a manifestation of recklessness which may be found by judge or jury to be gross negligence within any reasonable definition of that phrase.”

Defendant contends that on the record this court cannot find as a matter of law, notwithstanding the verdict of the jury, that the admitted fact of going to sleep was in and of itself and without reference to notice or warning of on-coming sleep or to other conditions, the proximate cause of the accident. Defendant states that what is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury from a consideration of all attending circumstances, and that it can only arise as a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inference to be drawn from them. In our opinion, reasonable men could not come to any other conclusion than that the proximate cause of the unfortunate occurrence was the fact that Joe Tennes became drowsy and fell asleep while driving. As pointed out in Anthony v. Wheeler, 130 Ill. 128, the practice of directing a verdict has generally arisen on instructions to find for the defendant in cases where it was thought the plaintiff had wholly failed to make proof of some material part of his case, but the practice extends to and allows a similar instruction on behalf of the plaintiff. In Marshall v. John Grosse Clothing Co., 184 Ill. 421, the court said (425):

“It is also claimed that the court erred in instructing the jury to find a verdict for the plaintiff. As there was no conflict in the evidence, it was a question of law whether, on the facts, plaintiff was entitled to a verdict, and as there was no evidence tending to support any defense interposed by the appellant, the court properly instructed the jury to return a verdict for the plaintiff.”

In Barmann v. McConachie, 289 Ill. App. 196, a judgment for plaintiff was upheld where the facts of the case showed that defendant permitted himself to go to sleep while driving. From the case of Hendler v. Meadows, 13 N. J. Misc. 684, 180 Atl. 399, it appears that plaintiffs were injured while riding in an automobile along Ocean avenue in Bradley Beach, New Jersey. The Supreme Court of New Jersey said (400):

The other point is' that it was error to direct a verdict. The testimony was that while driving along Ocean avenue the car suddenly swerved and struck the pole. There was testimony from Miss Zipkin that the driver stated at the time that he had dozed momentarily.. The defendant offered no testimony as to the maimer of the happening of the accident. Appellants argue as if the direction were based solely on the proof of the admission that Hendler fell asleep, but this is not so. When a car proceeding along a street suddenly swerves into a pole with no apparent cause, and there is no attempt to explain the occurrence, no claim that any other car or person was involved or that there was a hidden defect in the car, but simply a situation where the driver, whether asleep or awake, steered into a pole, it cannot be said that reasonable minds could differ on the question of negligence. There was no error in the direction of verdicts.”

In view of the fact that the liability of the defendant was clearly proved by a judicial admission by him, we are of the opinion that it was the duty of the trial court to direct a verdict in favor of plaintiff. No good purpose would be served by remanding the case for a new trial. Apparently, the parties presented all the evidence that was available and there was no substantial dispute as to the facts. The plaintiff, First National Bank of Chicago, executor of the estate of Mont J. Tennes, deceased, proved actual expenses of $5,445.-60, which were not questioned by defendant either as to reasonableness or amount.

Because of the views expressed the judgment of the superior court of Cook county is reversed and the cause remanded with directions to enter judgment for the First National Bank of Chicago, executor of the estate of Mont J. Tennes, deceased, in the sum of $5,445.60, and that the case be submitted to a jury for the purpose only of determining the damages to be .awarded to Ida B. Tennes, and against Joe Tennes, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Kilby, J., concurs.

Mr. Justice Hebel

specially concurs with the conclusion of this court that the judgment of the superior court of Cook county be reversed, but does not agree with the direction that the cause be submitted to a jury for the purpose only of determining damages to be awarded to Ida B. Tennes, the plaintiff, against Joe Tennes, the defendant. (John Deere Plow Co. of Moline v. Carmer, 350 Ill. 104.)