author: Mr. Presiding Justice Burke

text:
    Alfred Wolfe, Appellee, v. Railway Express Agency, Inc., Appellant.
    Gen. No. 43,238.

      Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed June 29, 1945.
    Rehearing denied September 6, 1945.
    Released for publication September 18, 1945.
    Pope & Ballard and Walter M. Nold, all of Chicago, for appellant.
    Henry Mitgang, of Chicago, for appellee; Arthur A. Wolfinsohn, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Alfred Wolfe filed a complaint in the superior court of Cook county to recover damages for injuries sustained as a result of being injured by a truck of the Railway Express Agency, Inc., driven by William Mares, on May 28,1943, on Roosevelt Road in Chicago. Plaintiff dismissed the driver, William Mares, before the case was submitted to the jury. The complaint was filed while plaintiff was in the hospital and at that time he sought damages in the sum of $15,000. During the trial, over defendant’s objection, he was granted leave to amend his complaint by asking damages in the sum of $50,000. The jury returned a verdict for $30,000 and judgment was entered thereon. Motions for judgment notwithstanding the verdict, and in the alternative for a new trial, were overruled. This appeal followed. In his brief plaintiff moves the court to dismiss the appeal on the ground that the certificate to the report of proceedings is defective. His point is that the certificate does not state that the report is a complete report of the proceedings at the trial. Par. 4 of Supreme Court Rule 36 reads:

“A claim that any matter in the trial court record actually before the court on appeal is not properly authenticated may be raised only by motion filed by the appellant or appellee before or at the time of filing his brief. Such motions shall be subject to the provisions of Buie 49, and each motion shall be supported by affidavit showing, not only that the matter complained of is not properly authenticated, but that it is in fact incorrect, .and that injury will result to the objecting party because of its inclusion. Unless a motion is made in the manner required by this rule, the record shall be deemed to be correct.”

Ruie 49 prescribes the manner in which motions shall be presented in a court of review. As plaintiff has not attempted to comply with these rules, his motion to dismiss the appeal is denied.

On Friday, May 28,1943, shortly before 11: 00 a. m., plaintiff, 47 years of age, was walking west on the sidewalk on the south side of Boosevglt Boad near State street in Chicago. Boosevelt Boad is an east and west highway and State street is a north and south highway. At the point where they cross, Boosevelt Boad is elevated and State street is depressed. Wabash avenue is a north and south street and intersects with Boosevelt Boad one block east of State street. Plaintiff worked for the National Carloading Corporation in the vicinity of State street and Boosevelt Boad. He loaded and unloaded freight from trailers and box cars. On the day of the mishap he did-not work. He took the day off to visit the school attended by his son, having been requested so to do by the school authorities. After that he decided to shop and to procure his pay check. He went to the office of his employer between 10:00 and 10:30 a. m. The timekeeper told him that if he could come back at 11:00 a. m., he might have his check for him, and he said he would return at that time. Plaintiff then walked east to Wabash avenue and Boosevelt Boad. Stairways lead from the sidewalks on State street to the sidewalks on Boosevelt Boad. Shortly before 11: 00 a. m. he was walking west on the south side of Boosevelt Boad in the course of his return visit to his employer for his check. When he was about 30 feet east of the stairway leading from Roosevelt Road to the east sidewalk of State street, he got a momentary flash of a truck approaching on Roosevelt Road from the west, about 30 to 40 feet from him. The truck, partially loaded, belonged to defendant and was being driven by William Mares, its chauffeur. The truck was going between 20 and 30 miles an hour. When the truck was from 30 to 35 feet from him, plaintiff heard an explosion like a tire blowing out, and when the truck was about even with him the ring from the right front wheel assembly hit him, injuring his right knee, breaking one or more ribs and breaking his left tibia. He was taken to St. Luke’s Hospital by the police, where Dr. William R. Cubbins, staff surgeon, performed an operation on him that afternoon. He remained in that hospital for 58 days under the care and treatment of Dr. Cubbins and hospital attendants. He left the hospital on July 24, 1943. At that time his leg was encased in a plaster of paris cast. He remained at home for a period of about 29 days without any doctor’s or hospital care and with his leg in the cast. He then came under the care and treatment of Dr. Charles Pease.

Defendant asks that since there is no substantial evidence that all injuries and disabilities complained of by plaintiff and claimed to exist at the time of the trial and for which the jury awarded an “ overabundant allowance,” were produced by the mishap of May 28, 1943, or by any lack of ordinary care on the part of defendant, the judgment should be set aside. Defendant asserts that plaintiff failed to prove that any lack of ordinary care on its part was the producing cause of the injuries and disabilities claimed by plaintiff. It is not disputed that the burden was on plaintiff to prove that the cause of his injuries was the negligent conduct of the defendant. Defendant points out that plaintiff filed his suit for damages in the sum of $15,000 while he was in the hospital and that after he left the hospital and the care of his treating surgeon, his condition apparently became worse, and that on the day of the trial he was granted leave to increase his claim for damages to $50,000. The fact that plaintiff increased the ad damnum, from $15,000 to $50,000 was a circumstance which undoubtedly was considered by the jury and the court in returning the verdict and in entering judgment thereon. The application to amend was directed to the' sound discretion of the court, and in granting it we cannot say that this discretion was abused.

Defendant points out that the testimony of plaintiff’s treating surgeon, .Dr. Cubbins, disclosed that plaintiff’s left leg improved during the time he remained in the hospital; that the leg was in correct alignment; that it showed signs of a good recovery, considering the nature of the injury; that after he had been in the hospital for 58 days he disregarded his treating surgeon’s wishes by leaving the hospital and the surgeon’s care without their approval; that after leaving the hospital plaintiff went home and had no medical attention for a period of 29 days, an important and critical period; that he took his case in his own hands for about a month; that presumably he found he was getting steadily worse; that finally another physician, Dr. Charles Pease, who had no connection with Dr. Cubbins, went out to plaintiff’s home, examined him and told him to report to his office, when he would take the cast off his leg, take X-ray pictures and see what could be done; that it was plaintiff’s duty to have his physicians take his condition as they saw it at the trial and trace his ailments back to the time of the occurrence and determine as nearly as could be to what extent his premature leaving of his treating surgeon’s care and his going without the care of any physician for weeks after he left the hospital, aggravated his otherwise improved condition.

Defendant urges that the verdict of $30,000 be reduced 70 per cent, or to the sum of $9,000, taking as a guide the amount of $15,000 claimed while he was under the care of his treating surgeon, and comparing it with the $50,000 claimed at the trial, which would be 3/10ths of $30,000,' or $9,000. Defendant suggests that if we believe that justice will be served by the payment of damages in the sum of $9,000, the judgment be affirmed on the filing of a remittitur in' the sum of $21,000; otherwise, that the judgment be reversed and the cause remanded for a new trial, with directions on the points raised by defendant. In discussing the subject of damages, defendant complains of the court’s refusal to give instruction No. 10, reading as follows:

“The court charges you that if you believe from a preponderance of the evidence that the plaintiff left the hospital or left the care of Dr. Cubbins after the accident in question before he should have left, and that his act in so doing caused him greater injury or disability or pain or suffering or loss of time from work than he would have otherwise sustained, you must not allow any recovery against the defendant arising or resulting from such act in leaving the hospital or the care of Dr. Cubbins before he should have done so.”

At the request of the defendant the court gave instruction No. 15, reading:,

“The jury are instructed that, with respect to the injuries claimed by the plaintiff in this case, the law requires of him, before he can recover for any injury, that he show, by a preponderance of the evidence, not only that such injury exists, but also that it is the result of the occurrence in question and does not proceed to arise from any other cause. The jury have no right to guess or conjecture that any injury complained of by the plaintiff is the result of the occurrence, but before the plaintiff can recover for such injury, the plaintiff must show by the greater weight of the evidence that it does not proceed or arise from any other cause. • The burden is not upon the defendant to show that it does arise from any other cause, and even if the evidence is evenly balanced between the plaintiff and the defendant on that question, you cannot allow the plaintiff for any such injury.”

From hearing and reading all of the instructions, the jury would understand that they would not have any right to award damages for aggravation of the injuries caused by the failure of plaintiff to avail himself of the professional care of Dr. Cubbins and the service of the hospital.

There is evidence that plaintiff was in good health prior to the occurrence; that he worked at loading and unloading box cars and trailers and that he was on his feet all day; that at the time of the trial, about 11 months after the occurrence, he could not walk very good; that his legs pained him; that he was unable to sleep; that there was a difference in size in the knee since the occurrence; that the left leg was smaller than the right; that there was no difference between the two legs before the occurrence; that the legs swell up, which they did not do theretofore; and that there is a restriction of motion in the left leg and that he had noticed no improvement in the leg for about four months. The evidence also showed that before the mishap plaintiff had done hard work practically all of his life. The medical testimony showed that plaintiff had his left leg broken in many places, a severe injury to his right leg, and that as a result, his condition was permanent, and that his condition at the time of the trial was due to the injury he had sustained, being the result of defendant’s negligence. Plaintiff left the hospital with the cast on his leg on July 24, 1943 and defendant contends his leaving was without the approval of the hospital or Dr. Cubbins, and that Dr. Cubbins and the hospital gave him permission to leave at his request, although they preferred to keep him for a while if they could. Dr. Cubbins testified that at the time plaintiff left the hospital the union of the leg was firm, but it was that degree of firmness that it could twist or warp unless he continued to protect it. Dr. Cubbins expected a good recovery in the leg and that it would be perfectly true in every respect. At the time of the trial Dr. Cubbins was asked to examine the X-rays of plaintiff’s left leg, and when asked whether at the time of the trial there was greater displacement of the bone in the left leg than.when plaintiff left the hospital, he answered: ‘ There is a slight backward displacement of the upper portion of the fragment.” When asked whether this displacement would have occurred if plaintiff would have remained in the hospital, plaintiff’s counsel objected and the objection was sustained. Dr. Pease estimated 75 per cent loss of function of the leg from an industrial standpoint, while Dr. Cubbins estimated 25 to 30 per cent loss of function of the leg from an industrial standpoint. In answer to the question as to whether plaintiff left the hospital with his permission, Dr. Cubbins answered: “We gave him, permission at his request. We preferred to keep him for a while if we could.” To the further question: “Did you so advise him that you preferred to keep him?” he said: “I think so, yes.”

There is no evidence that plaintiff was told that it might be dangerous for him to leave, or that plaintiff would have any reason to know that he might affect his condition adversely by leaving the hospital when he did. In our opinion the testimony of Dr. Cubbins could not be a basis for a contention that plaintiff left the hospital against the advice of his physician, or that he.thereby aggravated his injuries. At the time plaintiff left the hospital he had a plaster cast on his leg, which remained there until Dr. Pease removed it. Upon leaving the hospital he was given crutches so that he could move around. He went home, where he spent most of Ms time in bed so that he would not aggravate the injury. Dr. Cubbins testified that a physician who had been treating plaintiff from the time the cast was taken off and examined the leg from time to time would have a better opportumty to judge the permanent disability than he (Dr. Cubbins) would have. He stated that at the time plaintiff left the hospital he could not tell with any degree of certainty what the ultimate result would be in the leg. Dr. Pease, an orthopedic surgeon, testified that the X-ray which he took did not show any evidence of an injury for which plaintiff had received a 10 per cent disability through the action of the Industrial Commission; that the commission often allows more than 10 per cent disability without a fracture. We are of the opinion that from this testimony the jury would have the right to believe that the former injury had entirely cleared up, particularly in view of plaintiff’s testimony as to how he constantly used the leg without difficulty. We are satisfied that there was substantial evidence that all the injuries and disabilities complained of by plaintiff and claimed to exist at the time of the trial and for which the jury awarded damages, were produced by the occurrence of May 28, 1943, and that the judgment is supported by the evidence.

Defendant contends that the verdict is excessive. The ring knocked plaintiff down, bending one leg out of shape, cut and lacerated both legs, fractured his bones in from 21 to 26 places, injured the pleura of his lungs, the muscles and ligaments of both legs and the circulatory system of his limbs, leaving him permanently injured. When he was brought into the hospital he was suffering from a compound, com-minuted wound of the bones of the left leg. The tibia was fractured in 15 or 20 places. These fractures were so extensive they involved almost two thirds of the entire bone. There was a fracture extending up to the knee joints, which involved the tibial spine. He was given an anesthetic to cleanse the wounds, to remove the dirt, dead tissues, irrigate and remove the loose fragments of bone. After the cast was put on the leg and the leg elevated in traction, it remained in that position for 5 or 6 weeks. He had a lacerated wound above the knee joint in the “front side” of the right thigh, from which the blood ran down the sidewalk at the time of the occurrence, and it was necessary for a bystander to put a tourniquet on to control the hemorrhage of the leg. This gave him a vast amount of pain in the right leg for which he was given sedatives, and heat and light were applied." Ten days after he was injured it was green from the knee to the ankle. He had six fractured ribs. The fractured r.ibs injured the lining of the chest cavity in which the lung is encased, causing a traumatic pleuritis. He developed a very high temperature while in the hospital, which at times reached 103% and 104. His insides pained him. He was vomiting and in terrible pain. He was given hypodermics for a week. He then developed chills and was packed with hot water bottles at night. When the cast was removed from the left leg after being on for three months, the leg was stiff and could not be moved' and there was a scar adherent to the bone. He had edema of the ankle and infiltration of the soft tissues of both legs. He had a traumatic synovitis in the right knee joint, together with a thickened synovia on the right side.

He received expert medical treatment for. 11 months, and at the time of the trial had the following injuries: The left leg is smaller than the right leg,, due to atrophy of the muscles; there is a restriction of motion in the left leg in many directions, a tendency to turn the left foot in when walking on the leg because of pain; inability to kneel on the leg; swelling of both legs as a result of walking; constant pain and loss of sleep at night due to pain in the limbs; constant use of a cane to. walk with; a dropsy in both legs caused by an impairment of circulation; limitation of motion and function in the left knee joint and ankle joint amounting to 75 per cent loss of the use of that leg. In the other leg there is swelling, interference in circulation causing an accumulation of water-dropsy, as in the left leg, also a traumatic synovitis of the knee joint, a thickened synovia that covers the joint which has been damaged and which snaps upon-manipulation. The recitation of the injuries suffered by plaintiff and the permanent character of these injuries is sufficient to show that the verdict of $80,000 is not excessive.

Defendant urges that the injuries were separable, namely, (a) those occurring some years before the accident; (b) those occurring at the time of the accident; and (c) those occurring more than a month after the accident upon plaintiff’s disregarding his treating surgeon’s services and the hospital’s preference and leaving both prematurely; and that the court erred in giving instruction No. 1, reading:

“The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damages. In determining the amount of damages that the plaintiff is entitled to recover in this case, the jury have a right to, and they should, take into consideration all the facts and circumstances as proved by the evidence before them; the nature and extent of the plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body, if any, resulting from such physical injuries, as the jury may believe from the evidence before them in this case, he has sustained by reason Of such injuries; his loss of time and inability to work, if any, on account of such injuries; all moneys he necessarily expended or became liable for, for doctor bills, if any, while being treated for such injuries; and may find for him such sum as in the judgment of the jury, under the evidence and instructions of the court in this case, will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages or injuries, if any, are claimed and alleged in the complaint.”

Defendant asserts that in order to follow the first part of this instruction without resorting to conjecture, the jury would necessarily have to have more evidence and knowledge of the separate portions or percentages of disability involved; that the aggregate of disabilities resulting from three separate causes were estimated at 75 per cent and 25 to 35 per cent, respectively, by plaintiff’s two treating doctors; that the percentage of disability from the first occurrence was apparently adjudged 10 per cent permanent disability to plaintiff’s left leg; that the same leg was involved in the second occurrence, but the percentage of disability was not shown; that the percentage of disability from the third cause was not shown; that the jury could not determine the portion of plaintiff’s disability chargeable to defendant; that they could not determine the damages allowable from the evidence; that plaintiff produced no proof that he was permanently and totally disabled; that plaintiff produced no proof that he would not earn money beginning in a few months or a few weeks after the trial; that he produced no proof that all of his injuries, from all causes, had prevented him from securing gainful employment as late as the date of the trial; that he produced no proof that the major portion of his disability was caused otherwise than by his own conduct; and that he produced no proof that that portion of his injuries resulting directly, necessarily and with reasonable certainty from the ring flying off the wheel would not have been largely healed by this time.

Further criticising the instruction, defendant states that the court told the jury that in determining the amount of the damages plaintiff was entitled to recover they should take into consideration the nature and extent of his injuries so far as the same are shown by the evidence; that all three sets of injuries were shown by the evidence; and that the instruction should have required the jury in determining the damages to take into consideration the evidence only as to damages for which the law allows recovery. A further criticism of this instruction voiced by defendant is that the court told the jury they might find for plaintiff such sum as in their judgment, under the evidence and instructions of the court, will be a fair compensation for the injuries plaintiff has sustained, or will sustain, so far as such damages or injuries are claimed or alleged in the complaint; that all of his injuries were claimed in the complaint; that what was alleged in the complaint the jury did not know; that they did not see it; that it was not read to them; and that, in fact, the amended complaint was not filed until after the jury had returned their verdict. Defendant also suggests that had the theory covered in refused instruction No. 10, hereinbefore discussed, been given, some of the prejudicial results might have been avoided.

The instruction complained of was approved by the Supreme Court in Donk Bros. Coal & Coke Co. v. Thil, 228 Ill. 233. Therein the Supreme Court cites five cases in which the same instruction was approved. In its brief defendant states that over its objection the court granted leave to raise the ad damnum and “told the jury he was allowing the plaintiff to ask for $50,000 instead of $15,000. ’ ’ The jury knew that plaintiff was asking for $50,000. Defendant, in one of its instructions, makes reference to the complaint. In the case of Lotspiech v. Continental Illinois Nat. Bank & Trust Co., 316 Ill. App. 482, we reviewed the authorities in this state on the subject, and concluded that the better practice would be to define the issues to the jury without referring them to the pleadings. However, if the issues are defined, the fact that the jury is told of the allegations in the pleadings is not harmful. As hereinbefore pointed out, the court gave, at defendant’s request, instruction No. 15, which told the jury the rules of law which it was their duty to apply to the facts as they found them from the evidence before them. We agree with plaintiff that he produced conclusive proof that he was permanently disabled; that he would be unable to return to any employment similar to that which he had done prior to the mishap, because of the injuries to both of his legs and knees; that he had always been employed in occupations that required him to do hard work in order to make a living for himself and his wife and children; that at the time of the trial he was still unemployed because of the crippling effects of his injuries; that there was no proof that plaintiff caused any portion of his injuries by his own conduct; and that there was conclusive proof that all of his injuries were caused directly as a result of the ring coming off of the truck of defendant and striking him.

Defendant maintains that there was substantial evidence supporting its theory that the wheel assembly work complained of by plaintiff was done by an independent third party, rather than by a servant of defendant, and that the instruction on this theory, tendered by it, should have been submitted to the jury. The requested instruction, No. 2, reads:

‘ ‘ The court instructs the jury that if they believe the defendant was operating the truck at the time and place in question in a lawful manner, and the accident in question would not have occurred, except for the negligent act of a third person, then the jury should find the defendant not guilty, even though the plaintiff himself was not guilty of any negligence. The mere happening of the accident itself does not in any way necessarily mean that the defendant was guilty, and before the jury can find the defendant guilty they must find that the defendant was negligent, and that such' negligence was the proximate cause of the accident in question.”

It was defendant’s theory that it did not put together .the wheel assembly last before the occurrence; that the independent contractor, namely, the Commercial Tire & Supply Company, had through its mechanics, over whom defendant had no control, put together the wheel assembly; and that if there was any negligence in putting together the wheel assembly, the act of this third party caused the mishap rather than any act of the defendant. Plaintiff does not dissent from defendant’s statement that it was entitled to have the jury instructed on the theory of its case. Plaintiff insists, however, that the jury was instructed on all phases of defendant’s case on which there was competent testimony. Mares, the driver of the truck, testified that the tires were inflated at defendant’s garage, and that at the time a tire is inflated the ring is visible. Defendant’s witness Basara, testified that if there was anything wrong with the ring locking the the tire to the wheel it would be obvious to a man when he put air in the tire; that defendant’s garage at which the' truck was storaged and serviced, was equipped to fix tires with cold patches, and that there were other men there who could dismount rims and tires, remount them and put them back on the truck. Fred Viol, the garage foreman of defendant, testified that when “they” make repairs on tires in “their” garage “they” put on cold patches; that the tire involved in the occurrence had had “some attention,” some work done on it on May 27, 1943, the night before the mishap. Donald Verkler, a policeman, called by plaintiff, testified that he examined the tube shortly after the occurrence at the scene; that he found that the tube was “rotten rubber”; that the tube had three cold patches on it; that the tire involved was a six ply Greneral balloon tire with the numerals T-111390457 on it; that while reporting the mishap he made a note of the three patches and tire number and read the tire number therefrom while on the witness stand; and that he could distinguish cold patches from vulcanized patches, having worked in a garage. Frank Garner, a garage employee of defendant, testified that he checked the truck, and that when he checked the tire and ring, if there was anything wrong with the ring, or if the ring was not put on right, he could tell that fact. N. F. Dour, defendant’s assistant superintendent of motor vehicles testified that the number of the tire involved was 11290457; that he was not positive that the tube in that tire was patched at the Commercial Tire Co.; that if the tire had been taken off and a cold patch applied to it, he would not have “that record.” To the question": “So that it might have been taken off since it went out to this Commercial Tire Company and the tube fixed with a cold patch and you wouldn’t know about that?” he answered: “I wouldn’t know about it.” He also testified that there was evidence of a cold patch on the tube introduced as defendant’s exhibit 13.

Walter Welden, a stock handler for defendant, testified that a tire picked up by Commercial Tire Company was Ho. T-129045. This was not the number of the tire involved in the instant case. G. J. Eberhart, from the Commercial Tire & Supply Company, testified that his concern had no record of the serial number of the tire; that the Commercial Tire Company does not repair tubes by putting cold patches on; that everything they do is vulcanized, and that if an inner tube was repaired with a cold patch it would be the work of someone other than Commercial Tire Company. E. L. Moran, a graduate engineer of Armour Institute, with 25 years experience in handling rims and rings, testified that the rim and ring in evidence were two different types which were not designed to be used together; that they did not fit, nor are they properly matched. The proof was that defendant and Commercial Tire & Supply Company kept books and records of the numbers of the tires sent out for repairs, yet neither company had any record nor any other means of showing that the particular tire had been shipped to or serviced by the Commercial Tire & Supply Company. The proof shows that the tube involved had at least three cold patches on it. Mr. Dour, defendant’s superintendent, testified that he was not positive that the tube in the tire was patched at the Commercial Tire & Supply Company, and that there was evidence of cold patches on the tube introduced as an exhibit by defendant. We find that there was no proof that the Commercial Tire & Supply Company put together the wheel assembly last before the mishap. We are of the opinion that the court was right in refusing to give defendant’s requested instruction No. 2.

Defendant asserts that the court intensified the confusion of the jury by instructing as follows in given instruction No. 17, offered’ by plaintiff:

“The court instructs you that when a tort or wrong is committed by an agent or employee in the course of his employment, and while pursuing his employer’s business, the employer will be liable for any damage resulting from such tort or wrongful act, although it is done without the employer’s knowledge or consent, unless the wrongful act is a wilful departure from such employment or business.”

Defendant argues that this instruction encouraged the jury to infer that if Commercial Tire & Supply Company was employed as an agent and defendant was its employer, that the defendant would be liable for any error or negligent act of the Commercial Tire & Supply Company, although it was an independent contractor and although the allegedly negligent act was done without defendant’s knowledge or consent, “unless the wrongful act is a wilful departure from such employment or business.” Defendant argues further that it was error to instruct the jury that when a “tort” or “wrong” is committed by an agent, the employer will be liable and that this permitted them to infer that the Commercial Tire & Supply Company was the agent of defendant, that the instruction also left to the jury the law question for their interpretation of what is a tort and what is a legal wrong. We have held that there was no evidence that the wheel assembly last before the occurrence was made by a third party. We do not approve the instruction, but find that the giving of it under the facts of this case was not reversible error.

Defendant urges that under the peculiar facts and circumstances of the case the court erred in refusing to read its requested instruction Ho. 8, reading:

“If from the evidence in this case, you are unable to say, under your oaths as jurors, what caused the blowout of the tire and the ring to leave the wheel of defendant’s truck, then the court instructs you to find the defendant not guilty.”

Defendant states that plaintiff failed to make any proof that any act or omission of any act of the defendant directly and proximately caused the injuries, disabilities and damages which plaintiff claimed he was suffering at the time of the trial, and to avoid a case of rank speculation by the jurors, they should have been instructed as requested. Defendant insists that the giving of this instruction was particularly important because plaintiff’s expert, Moran, told the jury that the ring was not designed for the rim, but did not tell them that that fact, if it was a fact, caused the mishap; that the most he said was that in his opinion certain things might or could have caused the mishap; and that the jury should have been instructed specifically that if from the evidence they were unable to say, under their oaths as jurors, what caused the occurrence, then they should find the defendant not guilty. At the request of defendant the court instructed the jury as follows:

“If you believe from the evidence in this case that the injury to the plaintiff was the result of an accident without fault on the part of the defendant, then the court instructs you that the defendant would not be liable and you should find the defendant not guilty.”

It is undisputed that plaintiff was injured by the ring which came from the wheel of defendant’s truck. Plaintiff was in the exercise of ordinary care for his own safety. The tire was new, but the tube was old and patched. If defendant’s employees took all of the precautions in accordance with their testimony, the ring would not have separated from the wheel. There was no evidence that the assembly of the wheel was done by the third party. In our opinion the court was right in refusing to give the instruction.

Finally, defendant contends that since the affirmative defense that the case was governed by the Workmen’s Compensation Act and cognizable only by the Industrial Commission, remained undenied until after plaintiff rested his case, and there was evidence supporting this theory, the judgment should be set aside. Under the liberal provisions of sec. 46 of the Civil Practice Act [Ill. Rev. Stat. ch. 110, par. 170; Jones Ill. Stats. Ann. 104.046], a pleading may. be amended at any time before or after judgment, to conform the pleadings to the proofs, upon such terms as to costs and continuance as may be just. The record in this case does not show an abuse of discretion in allowing plaintiff to file a reply denying the allegations of the answer that plaintiff at the time of the occurrence was governed by the Workmen’s Compensation Act and that his injuries arose out of and in the course of his employment. Defendant states that at the time of the occurrence plaintiff was in the employ of the National Carloading Company; that he was reporting for his check, rather than making his employer seek him out and pay him; that he was to return a half hour later for his check, pursuant to the direction of the timekeeper; and that he was returning for his check when the mishap occurred. The Workmen’s Compensation Act requires that an accidental injury to be compensable must arise out of and in the course of the employment. We are satisfied that the trial judge, in deciding as a matter of law, that the injuries suffered by plaintiff did not arise out of and in the course of plaintiff’s employment, ruled correctly. Because of the views expressed, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Kiley, J., concurs.

Lewe, J., took no part.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Bernard Brothers, Inc., Appellee, v. May H. Deibler and J. B. Deibler, Appellants.
    Gen. No. 10,026.

      Heard in this court at the February term, 1945.
    Opinion filed July 11, 1945.
    Opinion modified and rehearing denied August 21, 1945.
    Released for publication August 21, 1945.
    Marvin Wallach, of Chicago, for appellants.
    John Tone Kelly, of Chicago, and Hall & Hulse, of Waukegan, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On the 18th of June 1940, May H. Deibler and J. B. Deibler entered into a lease with Bernard Bros., Inc., for a building located at Nos. 22 and 24 South First street in Highland Park, Illinois. Said building was to be used for automobile showrooms and garage. The lease was dated July 1, 1940, and expired on the 1st day of July 1945. The rent for the building was $250 per month.

The 15th clause of said lease provides that in the event of a failure of the lessee to pay the monthly rent, as provided, then the lessor could take judgment by confession for the amount of rent due and unpaid. The lessees became in arrears in the payment of rent and the lessor took judgment by confession in the municipal court of Cook county against the lessees for the unpaid rent. The Bernard Bros., Inc., entered a motion to vacate and set aside this judgment. They claimed they had been compelled on account of war measures of the federal government to discontinue their business, and the lease had been terminated by-operation of law. The trial court vacated the judgment. The Deiblers prosecuted an appeal to the Appellate Court. That court reversed the holding of the circuit court and certified the case to the Supreme Court, as involving a question of law of importance which should be passed upon by the Supreme Court. The Supreme Court affirmed the decision of the Appellate Court, and held that the lease was valid and that Bernard Bros., Inc., had not shown a valid defense to the action upon the lease. Deibler v. Bernard Bros., Inc., 385 Ill. 610.

During the pendency of the appeal, the Bernard -Bros., Inc., brought a suit in Lake county for an injunction to restrain the Deiblers from taking further judgment against them for alleged unpaid rent. The court issued a temporary injunction restraining the Deiblers.from taking any further action against Bernard Bros., Inc., for rent until the further order of the court.

The pleadings are rather voluminous, but summarized are: In Jan. 1945, the Deiblers entered a motion in said injunction suit to dissolve the injunction entered by the said court on the 10th of June 1944, wherein these defendants were restrained from confessing further judgment under the lease of the defendant herein. “These defendants further move for a rule on the plaintiff to proceed with the taking of testimony and to close proof within a short day hereafter ; since no evidence has been offered by plaintiff since July 7, 1944, or in the alternative to strike the evidence and for judgment as the material proof so far offered is in sharp conflict with the material allegations of the complaint.”

The court overruled the motion to dissolve the injunction, but sustained that part of the motion wherein the plaintiffs were required to close their proof before the master within a short time. It is from this order, that appellants, have perfected an appeal to this court.

The abstract fails to show the stipulation that was entered into between the parties on Oct. 30, 1944, wherein the judgment by confession that Deiblers obtained against the Bernard Bros., Inc., in the circuit court, of Cook county for $5,426.33, for rent accruing from Oct. 1, 1942, to May 31, 1944, together with interest and costs, had been vacated and set aside upon the payment by Bernard Bros., Inc., to Deiblers and their attorney, the amount of the judgment and costs. Said sum to be held and distributed as the rights of the parties are declared by the circuit court of Lake county.

The appellants contend that the court erred in not dissolving the injunction, or increasing the bond of the plaintiffs. The decree abstracted by the appellant, omitted one pertinent paragraph. As before stated, the court overruled appellants’ motion to dissolve the injunction and sustained defendants’ motion for a rule on Bernard Bros., Inc., to close their proof before the master in chancery in which the case had been re-referred for further hearing. Part of the decree is as follows: “it is, therefore, ordered by the court that the portion of said motion seeking to dissolve said injunction and for judgment for defendants be, and the same is hereby, denied, and the portion of said motion requesting a rule upon plaintiff to close proofs be, and the same is hereby, granted.

“it is, therefore, ordered that the within cause be, and the same is hereby, re-referred to Eugene M. Bun-yard, Master in Chancery of this Court, for further hearing.

“it is further ordered that the plaintiff be, and it is hereby, ordered to close its proofs before said Master in Chancery Eugene M. Bunyard, within thirty (30) days from this date, and the defendants, May H. Deibler and J. B. Deibler, are hereby ordered to close their proofs in this cause before said Master in Chancery within thirty (30) days after the date upon which plaintiff closes its proofs.”

It will be observed in the last paragraph of the decree just quoted, that the court entered a rule on the plaintiffs to close their proof within 30 days from the date of entry of the decree. In granting, or vacating an order for injunction, the trial court is vested with large discretionary power. Unless a court of review finds that, that discretion has been abused, the order will not be set aside. Under the circumstances in this case (by the court’s ordering that the proof be closed within 30 days), we conclude the court did not err in refusing to increase the bond of the plaintiff in the injunction suit, or to vacate the order for injunction.

The judgment of .the trial court will be affirmed.

Judgment affirmed.


author: Mr. Justice Bartley Stone, P. J.,

text:
    Willard Moser, Jr., Minor, by Willard Moser, Sr., Next Friend, Appellee, v. East St. Louis and Interurban Water Company, and William Petzgoldt, Appellants.
    Term No. 44M6.

      Heard in this court at the May term, 1945.
    Opinion filed August 16, 1945.
    Rehearing denied September 20, 1945.
    Released for publication September 20, 1945.
    Arthur W. Peth and C. C. Dremanh, both of Belle-ville, for appellants.
    Farthing, Farthihng & Feickert and John R. Sprague, all of Belleville, for appellee.
   Mr. Justice Bartley

delivered the opinion of the court.

This is a suit for damages arising out of a claim of Willard Moser, Jr., plaintiff appellee (hereinafter designated as plaintiff), a minor of the age of 12 years, for personal injuries sustained by him, by reason of being hit by a truck driven by William Petzgoldt, defendant appellant (hereinafter designated as defendant), on the evening of July 6, 1938, on North Twenty-eighth street, in the City of Belleville, Illinois, after appellee ran into the street while playing a game with other children. A trial by jury resulted in a verdict of $7,500 in favor of the plaintiff.

The complaint of plaintiff consisted of two counts. The first count included as defendant the East St. Louis and Interurban Water Company, a corporation, as the alleged employer of the codefendant, William Petzgoldt. At the close of all of the evidence on the part of the plaintiff, the court allowed a motion of the defendant Water Company for a directed verdict, as to it, and no question is before the court as to this action.

The defendants filed separate answers to the complaint denying the material allegations thereof, which included a denial of the allegation that the plaintiff, at the time of the injury, was in the exercise of due care and caution for his own safety.

A trial'by jury resulted in a verdict of $7,500 in favor of the plaintiff. A motion for new trial was duly filed and argued, and the motion was overruled. A motion for judgment notwithstanding the verdict was filed, argued, and overruled, and judgment rendered on the verdict for $7,500.

The only errors presented and argued by the defendant are that the plaintiff failed to prove that he was in the exercise of due care and caution for his own safety, and that the court erred in denying the defendant’s motion for a directed verdict in his favor at the close of the plaintiff’s case and at the close of all of the evidence, because it is said that as a matter of law, the plaintiff was not in the exercise of due care and caution for his own safety, as shown by the record. It thus appears from the issues as presented to this court, that the negligence of the defendant is admitted, that the negligence was the proximate cause of the injury is admitted, as is also the resulting damage, and that the amount awarded by the jury is within the range of the testimony. The only question, therefore,, before the court is whether the record fails to show that the plaintiff was in the exercise of due care and caution for his own safety.

The occurrence in question took place on North Twenty-eighth street in Belleville. This street runs north and south and is 24 feet wide from curb to curb. It was still daylight and plaintiff, with other children, was playing a game known as “5-10,” which is rather vaguely described as being played as follows: “five-ten, no stop, no pushing, no running, red light halt, no steps.”

The defendant was driving the truck in question in a southerly direction along the street in question and where the plaintiff and other children were playing about the sidewalk and in the front yards adjoining. In the same neighborhood, on the other side of the street, were three little girls sitting on the curb with their feet in the street, and it was because of this that the defendant says that he was driving in what he describes as the center lane of the 24-foot wide street. Plaintiff’s testimony is to the effect that he took two steps from the grass and stopped about 4 feet from the east curb out in the street; that he looked to the south and saw no cars and then looked north, and in about a minute, saw a truck coming toward him about 60 feet away, and the next thing that he knew, he was struck without ever having moved from where he was standing. Defendant testified that he was driving a 1½-ton truck, Chevrolet model; that riding in the seat of the truck with him were his daughter and two grandchildren; that he was driving between 12 and 15 miles per hour; that he saw one boy run south and one run north, and still another (the plaintiff) run west with his head down, into the side of his truck, and that he immediately applied his brakes and stopped his truck in about 3 or 4 feet.

As a result of the occurrence, plaintiff received a compound fracture of the lower left leg at the junction of the lower third with the middle third, with both bones broken and protruding through the skin, and extensive injury to the lower left leg and foot, which involved the soft tissues, which were mashed and severely damaged about the bone. Plaintiff was in the hospital from July 6 to September 10, 1938. The union of the fracture was good, although he has a slight limp and a slight shortening of his leg. There was considerable sloughing of the soft tissues of the ankle and of the heel and skin grafting was resorted to to cover the bare spot on the ankle where the skin had sloughed off down to the tendons. Hospital and doctors’ bills amounted to $3,775.

The evidence is in dispute as to whether plaintiff ran into the defendant’s truck, or whether the defendant’s truck ran into the plaintiff. It is also in disagreement whether the truck veered to the left and how far distant the truck was traveling west of the east curb line, and how far west of the east curb line the truck was when it stopped. There is no dispute but what the truck was traveling at least to the extent of one half of its width east of the center line of the 24-foot street. The skid marks showed 17 inches on the pavement, and according to the testimony of the defendant, he skidded nearly all of the rubber off of his tires and almost ruined one of them.

As before stated, the plaintiff, at the time of the occurrence, was 12 years of age. He had reached the 6th grade in school, and had lived in the neighborhood for about two years.

As to the accountability of children for contributory negligence, Illinois, follows the common-law rule that a child under the age of 7 years is conclusively presumed not to be responsible for his acts. Between the ages of 7 and 14, he is still so presumed to be, but this presumption might be overcome by proof of the intelligence and capacity of the child. (Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482.) When proof is made of the age, capacity intelligence and experience of the child between the ages of 7 and 14, the question of contributory negligence then becomes one of fact, Which must be submitted to the jury to determine, taking into consideration the age, capacity, intelligence, and experience of the child. (Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142.)

In the case of Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, commencing on page 149, the court said:

“Appellant’s third point is, that there is no evidence in the record tending to show that appellee was in the exercise of ordinary care for his own safety at and immediately prior to the time of the happening of the accident in question, and that his injury is due wholly to his own negligence. This court has definitely decided that a child under the age of- seven years is incapable of such conduct as will constitute contributory negligence; (McDonald v. City of Spring Valley, supra [258 Ill. 52]; Richardson v. Nelson, 221 Ill. 254; Chicago, St. Louis and Pittsburg Railroad Co. v. Welsh, 118 id. 572;) and the same rule is followed by other courts. (McEldon v. Drew, 138 Iowa, 390, 116 N. W. 147.) We have also held that when a child has attained the age of fourteen years there is no reason to excuse him from the same degree of care for his own safety which is required of an adult. (Austin v. Public Service Co., 299 Ill. 112; Walldren Express Co. v. Krug, 291 id. 472; Chicago and Alton Railroad Co. v. Becher, 76 id. 25.) These rules established by the courts are derived from the common law rule which applies in criminal cases. Since, in reason, responsibility for one’s acts depends upon the understanding rather than the age, there can be no fixed rule of age which will operate justly in every case, but, as is said by Bishop concerning the rule as applied to criminal conduct, ‘An imperfect rule is practically better than none.’ Therefore, while there has been some slight deviation in a féw cases in the application of the rule by this court, it is fairly well established by this court and courts of other jurisdictions that a child under seven years of age is conclusively presumed incapable of contributory negligence, and that in the case of m child above the age of fourteen years the same rule shall he applied to him in that regard as is applied to adults, his intelligence and experience being considered. The law is clearly established by great weight of authority that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. (Chicago and Alton Railroad Co. v. Becker, supra; Lake Erie and Western Railroad Co. v. Klinkrath, 227 Ill. 439; City of Pekin v. McMahon, 154 id. 141; Rockford, Rock Island and St. Louis Railroad Co. v. Delaney, 82 id. 198; McEldon v. Drew, supra; Lake Erie and Western Railroad Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980; City of Shawnee v. Cheek, 40 Okla. 227, 137 Pac. 724; Hepfel v. St. Paul, Minneapolis and Manitoba Railway Co., 49 Minn. 263, 51 N. W. 1049.) The question whether appellee was, under the circumstances, in the exercise of ordinary care for his own safety at and immediately prior to the time of the happening of the accident in question was properly submitted to the jury. Union Pacific Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592; Lorence v. City of Ellensburgh, 13 Wash. 341, 43 Pac. 20.”

In the case of Deming v. City of Chicago, 321 Ill. 341, the court, commencing on page 343, said:

“Plaintiff in error says that ‘contributory negligence is the outstanding feature of this case.’ The law is clearly established by great weight of authority that the question of culpability of a child between the ages of seven and fourteen is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.”

From the foregoing decisions of the Illinois Supreme Court, it is clear that the question of whether the plaintiff was in the exercise of ordinary care was properly submitted by the court below to the jury for its consideration, and the question having been passed upon by the jury under the instructions of the court as to the law, this court would not be warranted in substituting its judgment unless it could say, as a question of fact, that rational persons would not differ on the question. (Glassman v. Keller, 291 Ill. App. 262; Schwanz v. Sangamo Electric Co., 294 Ill. App. 395; Kelly v. Chicago City Ry. Co., 283 Ill. 640.)

From a careful reading of all of the evidence in the case, we cannot say that the finding of the jury was unreasonable, or that the evidence does not support the finding of the jury that the plaintiff was in the exercise of due care and caution for his own safety, taking into consideration his age, capacity, intelligence and experience. The jury was fully and adequately instructed as to the law on the degree of care required on the part of the plaintiff, and the trial court has approved the action of the jury in finding the defendant guilty. The judgment of the circuit court will therefore be affirmed.

Affirmed.

Stone, P. J.,

dissenting: I am unable to reconcile my own- conclusions in this case with those expressed in the majority opinion. I, therefore, respectfully dissent from said opinion.

The record discloses that the accident in question occurred on North Twenty-eighth street in Belleville. This street runs north and south and is 24 feet wide from curb to curb. It was still daylight, toward evening, and plaintiff with other children was playing a game known as “5-10,” which is rather vaguely described as being played as follows: “five-ten, no stop, no pushing, no running, red light halt, no steps.” Plaintiff’s testimony is to the effect that he took two steps from the grass and stopped about four feet from the east curb, out in the street; that he looked to the south and saw no cars, and then looked north and in about a minute saw a truck coming toward him, about 60 feet away and the next thing that he knew, he was struck.

Defendant testified that he was driving the truck in question in a southerly direction, in the center lane, as he described it, because of the fact that he had seen three little girls on the west side of the street with their feet in the street. He claims that he was driving between 12 and 15 miles an hour and is corroborated in this particular by several witnesses. His testimony is to the effect that he saw one boy run south and one run north and still another (the plaintiff) run west with his head down, running into the side of the truck. Defendant claims that he immediately applied his brakes and stopped his truck in about three or four feet. As a result of the accident plaintiff’s leg was broken in two places, and there can be no question but what he sustained a serious injury. No question is raised here as to the excessiveness of the verdict.

Counsel for plaintiff rely upon the case of Jones v. Standerfer, 296 Ill. App. 145, in support of his contention that plaintiff was in the exercise of due care and caution for his own safety, when, as he claims, plaintiff took two steps into the street and waited for the truck to pass, and that he had a right to assume that traffic coming from the north, going south, would' be on the west side of the street. In the Jones case plaintiff was struck by an automobile while she was crossing the street, after getting out of another automobile, on her way to work, at a factory on the opposite side of the street. There the court held that the statute did not impose the duty upon the pedestrian to yield a right of way, when an automobile was traveling on the wrong side of the street. However, in. that case, plaintiff was rightfully in the street, on her way to the opposite side of the street.

In the instant case it is an inescapable conclusion that the boy was apparently absorbed in the playing of the game and had no intention of crossing the street, or retracing his steps to the curb, and was not, as counsel claims waiting for the defendant’s truck to pass. Plaintiff testified that in the playing of the game of “5-10” one of the other boys said “No steps” and he stopped where he was, four feet out from the east curbing. We infer, that according to the rules of the game, when that was said, plaintiff was supposed to stop where he was, regardless of where he was. In addition thereto, and distinguishing the facts in the Jones case from the instant case, Dolph Horhousen, who was 12 years of age at the time of the accident, being called for defendant, testified that he was a participant in the game and that plaintiff was two feet off of the curb, that witness called to him, asking him, “Billy, are you going to play” and plaintiff replied, “I don’t know” and with that darted into the street, without looking. Betty Jane Pees, who was aged 12 at the time of the accident testified that she was one of the three little girls sitting on the west curb, and that plaintiff ran into the street and did not make any stop between the curb and the truck and ran into the truck. Doris May Poriot, another one of the little girls sitting on the curb, testified that while she did not see plaintiff come in contact with the truck, that she did’ see him run into the street.

The same degree of care to protect himself from injury by the traffic in a public street is required .of a minor as of an adult where the minor is old enough to know the character of the traffic in the street in question and the danger from automobiles and other vehicles. Walldren Express & Van Co. v. Krug, 291 Ill. 472. It has been held repeatedly in this State that a minor even younger than plaintiff can be guilty of contributory negligence and is charged with the exercise of that degree of care that a person of his age, intelligence, capacity and experience would exercise under similar circumstances. Soens v. Chicago W. & V. Coal Co., 160 Ill. App. 467; Koehler v. Chicago City Ry. Co., 166 Ill. App. 571.

Plaintiff was a boy of 12 years at the time of the accident. He had reached the sixth grade in school and was presumed to be of average intelligence for one of his age. Heimann v. Kinnare, 190 Ill. 156. The automobile today is apparently an integral part of American life. The children of this generation are familiar, almost from infancy with their mechanism, their uses, and operation, and should be held to know the corresponding dangers, as a predominant factor in traffic on the streets of cities, much more so than the children of any previous generation. The plaintiff testified that he saw the truck approaching 60 feet away and certainly knew the danger of continuing to stand where he did in the middle of the block, four feet from the curbing, in the street, in apparent compliance with the rules of the game, which he was engaged in playing.

Appellee’s testimony alone, it seems to me, makes his theory of due care unthinkable. Prom what he says he deliberately stood there and waited for the truck to hit him. He looked to the south and saw no car; in a minute he looked to the north and saw this truck coming about 60 feet away. The evidence is that the truck was going at the rate of about 12 miles an hour. All this boy had to do was take a step back and save himself an injury. Of course, this action might have reduced his percentage in the game and that would never do., It is said that he.was where he had a right to be; that is granted, but much more is required of one seeking damage for the misconduct of another. A man has a right to be in his own back yard, but does not have a right to tease his neighbor’s dog until it jumps over the fence and bites him. He has a right to stand in his own back yard and watch a neighbor cut down a tree, but when the tree begins to fall in his direction he has no right to stand still and let it hit bim and then claim damages from his neighbor.

All the other evidence is to the effect that this boy actually ran into this truck as it was traveling. Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person, guided by those circumstances which influence persons, would have done. Would any prudent person stand there watching an automobile 60 feet away and let it hit him? It seems to me that there is no ground for difference of opinion upon that subject.

I am very decidedly of the opinion that the court erred in not directing a verdict for the defendant in this case. In any event the verdict is against the manifest weight of the evidence and should be reversed on that ground.


author: Justice Hayes.

text:
    Marie E. Sullivan and Percy B. Sullivan, Appellees, v. Henry H. Morey, Appellant.
    Gen. No. 9,451.

      Heard in this court at the February term, 1945;
    opinion filed February 23, 1945;
    rehearing by appellant and appellees denied September 15, 1945;
    released for publication September 15, 1945.
    James G. Allen, for appellant;
    C. C. Martin, for appellees.
   Opinion by

Justice Hayes.

Not to be published in full.


author: Presiding Justice Matchett.

text:
    Peter Chapralis et al., Appellants, v. City of Chicago, Appellee.
    Gen. No. 43,416.
    Heard in the first division, first district, this court at the April term, 1945;
    opinion filed June 25, 1945;
    rehearing denied September 14, 1945;
    released for publication September 19, 1945.
    George P. Foster, George P. Latchford, Jr. and Daniel S. Wentworth, for appellants;
    Daniel S. Wentworth, of counsel; Barnet Hodes, Corporation Counsel, for appellee;
    J. Herzl Segal and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


author: Presiding Justice Burke.

text:
    Huyler, Appellee, v. City of Chicago, Appellant.
    Gen. No. 43,215.
    Heard in the third division, first district, this court at the October term, 1944;
    opinion filed June 29, 1945;
    rehearing denied September 6, 1945;
    released for publication September 18, 1945.
    Barnet Hodes, Corporation Counsel, for appellant;
    J. Herzl Segal and L. Louis Karton, Assistant Corporation Counsel, of counsel;
    Herman & Pollak and Smith, Bundesen, White & Raynor, for appellee.
   Opinion by

Presiding Justice Burke.

Not to be published in full.


author: Justice Kiley.

text:
    Noble W. Lee and John Marshall Law School, Appellees, v. Ralph E. Morris et al., Defendants. Interlocutory Appeal of Ralph E. Morris, Appellant.
    Gen. No. 43,174.

      Heard in the third division, first district, this court at the June term, 1944;
    opinion filed June 29, 1945;
    rehearing denied September 6, 1945;
    released for publication September 18, 1945.
    Max Luster and Julian Luster, for appellant;
    Noble W. Lee and Harry G. Fins, for appellees.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Marion Healy, Appellant, v. New York Central Railroad Company, Appellee.
    Gen. No. 10,011.

      Heard in this court at the February term, 1945.
    Opinion filed July 11, 1945.
    Rehearing denied October 2, 1945.
    Released for publication October 4, 1945.
    C. N. Hollerich, of Spring Valley, and Warner & Warner, of Dixon, for appellant; C. N. Hollerich, of Spring Valley, and H. C. Warner, of Dixon, of counsel.
    Carey R. Johnson and Joseph R. Peterson, both of Princeton, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Marion Healy filed a suit in the circuit court of Bureau county, seeking damages for injuries resulting to herself and her automobile when her car collided with a freight train of the defendant, the New York Central Railroad Company, a corporation. At the time of the accident, the train was standing on a switch track of the defendant at a grade crossing of the Illinois State Highway route 89, known as Main street, in the village of Ladd, Illinois. The collision occurred about five o’clock in the morning of January 1, 1942. The railroad tracks at the crossing in question extended in an easterly and westerly direction, and the highway in a northerly and southerly direction and cross at right angles. The plaintiff was riding in the front seat of the automobile which was being driven north by her friend, Russell Batton. They were on the south side of the train. The night was dark, misty and foggy and it had been snowing a short time before the accident. At the time of the accident, Miss Helen Conti and her friend, Robert Trow, were riding in the rear seat of the automobile. Robert Trow and Russell Batton are in the armed forces, and neither was present at the trial. The case was tried before a jury, which found the defendant not guilty. A motion for a new trial was overruled. Judgment was entered on the verdict, and from this judgment, an appeal is prosecuted.

The complaint sets forth the operation and ownership of the railroad, etc.; that the plaintiff was in the exercise of due care and caution for her own safety; the driving into the freight train, and the damage to herself and the automobile. The fourth paragraph of the complaint, and especially the fourth paragraph of the second additional count, charge the defendant with the duty of maintaining a switchman, or a flagman to protect the crossing. The fourth paragraph of the second additional count is as follows: “That the railroad crossing aforesaid is now and has been for more than fifteen years prior to the commencement of this suit, extra-hazardous for persons and property lawfully using said Main Street at said crossing; that because of the extra-hazardous character of said crossing, the defendant, for a long time prior to and on the twenty-third day of May, A. D. 1928, provided and maintained a flagman to protect said crossing, and persons travel-ling over the same; that on or about the twenty-fifth day of November, A. D. 1927 the defendant filed in the office of the Illinois Commerce Commission its application for authority to make a change in the protection at the aforementioned crossing of its railroad and said Main Street, and to install flashlight signals in lieu of the flagman then being maintained by the defendant at said crossing; that in and by its said application the defendant, in order to induce said Illinois Commerce Commission to authorize the installation of flashlight signals at said crossing in lieu of a flagman, represented that at said crossing there were three sidetracks which would not be connected with track circuits for said flashlight signals, and that as to said sidetracks, they would be protected by train crews when moves were made over the same; and said defendant in and by its said application further represented and alleged that trains using tracks not bonded for flashlight signals, .to wit, the sidetracks aforementioned, would be required by time-table instructions to protect the crossing by members of the crew; that thereafter, to wit, on or about the twenty-third day of May, A. D. 1928 upon the hearing had before said Commission on the aforementioned application of the defendant, said Illinois Commerce Commission authorized the change in crossing protection so applied for by said defendant as aforesaid; that the aforementioned authorization or order of the Illinois Commerce Commission authorizing the change in crossing protection at said crossing has been since the date of its passage, entry or adoption, and is now, in full force and effect and has not in any way been amended, modified or revised.”

The defendant’s answer to the fourth paragraph in both the original and additional counts, is a denial of all the facts set forth in paragraph four. On the trial of the case the plaintiff offered to prove the orders of the Illinois Commerce Commission relative to the facts as stated in paragraph four in their complaint. The defendant objected to the introduction of this evidence. The objection to this offer was that it is not competent, or material, and does not prove nor tend to prove properly any issue in the case.

The plaintiff made positive allegations that the Illinois Commerce Commission had entered an order for the railroad company to protect the crossing by a flagman, or other signal devices when trains were on the siding, in addition to flashlights or signal lights, which would not operate unless the train was on the main track. This was a material allegation in the plaintiff’s complaint.

The defendants in their answer denied there was any such ruling, or order of the commerce commission, so this was clearly an issue of fact that should have been presented to the jury. The appellee has cited the case decided by this court of Fox v. Illinois Cent. R. Co., 308 Ill. App. 367 as sustaining its contention that this evidence should not have been admitted. The Fox case is not authority for the exclusion of this evidence. In the Fox case the question was raised whether the complaint stated a good cause of action, and the court held that it did not, because it did not allege that the defendant had violated any statute, ordinance or regulation of the commerce commission.

The plaintiff attempted to prove that the driver of the car knew the regulations of the Illinois Commerce Commission, and that the railroad company was in the habit of keeping a flagman on duty to protect the public when a train was standing on the sidetracks at this crossing. On objection of the defendant the court refused to admit this testimony. We think that the allegation of the complaint, that the driver of the car, and plaintiff had knowledge relative to the regulations and custom of the railroad company in protecting this crossing, was a question that should have been submitted to the jury as bearing on the question of due care and caution for the safety of the plaintiff at the time the collision occurred. Greenfield v. Terminal Railroad Ass’n of St. Louis, 289 Ill. App. 147, and cases there cited.

Complaint is also made that the court erred in admitting declarations of Bussell Button, which were not made in the presence of plaintiff and not made with her consent. Button was asked about these declarations at the time he gave his testimony in his deposition. We think a proper foundation was laid to use these statements in an impeaching manner.

The defendant’s instruction No. 4 is as follows: “You are instructed that it is a principle of law that if you believe from the evidence that any witness has wrongfully and knowingly sworn falsely to any material element in the case, or that any witness has wrongfully and knowingly exaggerated any material fact, or circumstance for the purpose of deceiving, misleading or imposing upon you, then you have a right to reject the entire testimony of such witness unless corroborated by other evidence, or by facts and circumstances which appear in the case. ’ ’ Practically the same instruction was given in the case of the Chicago & A. R. Co. v. Kelly, 210 Ill. 449. The Supreme Court reversed the judgment for the court’s error in giving this instruction. The same instruction was criticized in Zbinden v. DeMoulin Bros, & Co., 245 Ill. App. 248.

Defendant’s instruction No. 13, is as follows: “You are instructed that you should return a verdict in favor of the Defendant if the evidence is evenly balanced, or if the preponderance is in favor of the Defendant or if you are unable to determine as to its preponderance.” Counsel for appellee is in error when they say that this instruction was not given or cited in the case of Hughes v. Medendorp, 294 Ill. App. 424. This instruction is quoted on page 431, and the court says, “this form of instruction has been repeatedly condemned by the courts and should not have been given. Wolczek v. Public Service Co., 342 Ill. 482; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.”

Defendant’s instruction Ho. 4 and 13 should not have been given. Under the evidence as offered in the case, defendant’s instruction Ho. 6 is erroneous. For the reasons above stated, the judgment of the trial court is hereby reversed and the case remanded. "

Reversed and remanded.


author: Mr. Presiding Justice Matchett

text:
    People of State of Illinois ex rel. James A. Fox et al., Appellees, v. Robert J. Dunham, President, Chicago Park District et al., Appellants.
    Gen. No. 43,342.

      Heard in the first division of this court for the first district at the February term, 1945.
    Opinion filed October 15, 1945.
    Rehearing denied October 30, 1945.
    Released for publication October 30, 1945.
    John O. Rees, of Chicago, for appellants; Martin G. Loeff, of Chicago, of counsel.
    Michael F. Ryan, of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Defendants appeal from- an order entered November 8, 1944, awarding a writ of mandamus. The complaint was filed by Fox et al., August 7, 1942. September 18, thereafter, four intervenors, claiming a like denial of similar rights, petitioned and were allowed to become coplaintiffs. There was a motion to strike answers, replications and rejoinders. The cause was put at issue. Evidence was taken and the writ awarded. The record is voluminous, about 4,000 pages. The briefs make many points and cite nearly 100 cases.

The material facts are few and practically uncontradicted. Defendants are the officials of the Chicago Park District. It came into existence May 1, 1934, the result of the consolidation of 22 independent park districts in Chicago, whose existence was merged in that of the Chicago Park District. Three of these independent districts were operating under the Park Civil Service Act (Ill. Rev. Stat. 1943, ch. 24½, par. 86a) [Jones Ill. Stats. Ann. 23.089(1)]. The other independent districts were not operating under that law.

At the time of the consolidation five of the plaintiffs (Fox, Kling, Newman, Lee and Fitzgerald) were temporary employees of one of the civil service park districts. The other plaintiffs were employees of the non-civil service park districts. All the plaintiffs claim they were entitled to the status of civil service employees under the Park Civil Service Act by virtue of Ill. Rev. Stat. 1943, sec. 14, ch. 105, par. 333.14 [Jones Ill. Stats. Ann. 96.564].

The plaintiffs claim that People ex rel. Kelly v. Dunham, 313 Ill. App. 18, is decisive of this case. We there considered these statutes and held that the employees of the non-civil service independent park districts at the time of the consolidation became entitled to recognition by the Chicago Park District as civil service employees. The Statute of Limitations was not pleaded there by the defendants, and the facts as to the issue of laches were' entirely different. By the terms of the consolidation statute the Chicago Park District was to become effective May 1, 1934. The validity of the Act was apparently deemed doubtful by all parties. It was determined to be legal and valid by a decision of the Supreme Court in People v. Kelly, 357 Ill. 408. The opinion in that case (by a divided court) was filed in the Supreme Court August 23,1934; rehearing was denied October 11, 1934. Up to about November 15 of that year the independent parks continued to operate, apparently with the co-operation, in part, and consent of the Chicago park commissioners and the acquiescence of everybody.

From the commencement of their administration of the park district the commissioners and its civil service board have contended plaintiffs were not entitled to the status of civil service employees under the statute.

This suit, as already stated, was not filed until August 7, 1942. Defendants contend (and in the trial court pleaded as a defense) that the actions were barred by the Statute of Limitations and by laches of the plaintiffs. These are, we hold, the controlling questions in this case. This suit was filed more than eight years after November 1934, when the cause of action of plaintiffs and intervenors accrued.

The Statute of Limitations (Ill. Rev. Stat., 1943, ch. 83, par. 16, § 15 [Jones Ill. Stats. Ann. 107.275]) provides:

“All civil actions not otherwise provided for shall be commenced within five years next after the cause of action accrued.”

Other sections of the statute provide that if a person is out of the State this action may be commenced within the time limited after his coming into or return to the State, and that if after the cause of action accrues he departs from and resides out of the State, the time of his absence is no part of the time limited for the commencement of the action. These provisions shall not apply to any case when, at the time the cause of action accrued or shall accrue, neither the party against nor in favor of whom the same accrued or shall accrue were or are residents of the State. Section 22 [Ill. Rev. Stat. ch. 83, par. 23; Jones Ill. Stats. Ann. 107.282] also provides the bar of the statute shall not apply in case of fraudulent concealment, but there is no pleading in this case nor evidence tending to sustain in any of these exceptions. It would seem on the undisputed facts here the present action is barred by the statute, and we so hold.

Defendants also contend plaintiffs and intervenors are barred from maintaining their suits by gross laches. We have already held the cause of action accrued in November 1934, and stated the complaint was filed August 7, 1942; the intervenors’ complaint September 18, 1942. The order appealed from was entered November 8,1944. In other words, the suit was begun more than eight years after the cause of action accrued and the decree appealed from was entered more than two years thereafter. We are therefore now considering a case where the alleged right of action accrued more than ten years ago. The law of laches is strictly applied to rights claimed under civil service statutes. The object of the civil service laws is not only to protect employees from the spoils system but, more important, to protect the public and in order that it may receive service of the kind and quality for which it pays. .Protection of the public is the main purpose. The protection of the employee in his tenure of office is collateral thereto. For these reasons laches is imputed and bars from relief any employee claiming to have been wronged, who fails to act with reasonable speed. Of numerous cases it will be sufficient to cite City of Chicago v. Condell, 224 Ill. 595, and People ex rel. McSweeney v. Collins, 276 Ill. App. 1. The necessity of such a rule in this type of case is well illustrated here. After their cause of action accrued plaintiffs here delayed bringing their actions, accepted temporary appointments, from which they were laid off, and took civil service examinations, which in every case each one of them taking failed. In this way, other employees obtained prior rights, which the claims now made by plaintiff and intervenors would destroy. The order appealed from is unfair to these other employees and detrimental to the service of the Chicago Park Board.

In the case of People ex rel. Richards v. Allman, 289 Ill. App. 586, 592, this court stated the law applicable as to laches in beginning and laches in prosecuting suits of this nature. We there said:

“Where one seeks a writ of mandamus in a case such as the one at bar, he must not only act promptly in beginning his action but he must also see that it is expeditiously prosecuted as well. People ex rel. Lynch v. City of Chicago, 271 Ill. App. 360, and People ex rel. Hahn v. City of Chicago, 279 Ill. App. 624.”

We, also, there pointed out that for this reason suits of this nature are favored in the way of getting a speedy hearing in the trial courts. We hold plaintiffs and interveners are barred by laches in beginning and prosecuting their actions as well as by the Statute of Limitations.

Pending this litigation plaintiff Fred H. Simon passed away and his death has been suggested of record. The petitions of Jane Margaret Walsh and Arthur Benson have been voluntarily dismissed. As to other plaintiffs and interveners the judgment will be reversed without remanding.

Reversed.

O’Connor and Niemeyer, JJ., concur.


text:
    Continental Illinois National Bank and Trust Company of Chicago, Executor of Last Will and Testament of Joseph C. Smith, Deceased, Appellees, v. University of Notre Dame Du Lac et al., Appellees. Joseph Edward Neuhaus, Appellant. Joseph Edward Neuhaus, Appellant, v. University of Notre Dame Du Lac, Appellees.
    Gen. No. 43,375.

      Heard in the first division of this court for the first district. at the April term, 1945.
    Opinion filed October 15, 1945.
    Rehearing denied October 30, 1945.
    Released for publication October 30, 1945.
    Friedlund, Levin & Friedlund, of Chicago, for appellant ; Emil N. Levin and D. M. Stalzer, both of Chicago, of counsel.
    Hubachek & Kelly, of Chicago, for appellee, Continental Illinois Nat. Bank & Trust Co. of Chicago, Executor; Holland C. Pile, of Chicago, of counsel.
    Fred L. Steers, of Chicago, for appellees, University of Notre Dame du Lae, an Indiana Corporation, Mary Collins and Genevieve Mullen, and the University of Notre Dame Du Lac, an Illinois Corporation.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Joseph Edward Neuhaus appeals from a decree entered December 11, 1944, construing the will -of Joseph C. Smith and dismissing the counterclaim of Neuhaus.

The complaint was filed by the executor May 7,1943. The will and codicil were executed November 19, 1940. The will gave to a cousin of testator, Genevieve Mullen, $5,000; to Miss Mary Collins, his secretary, $5,000; to the Little Sisters of the Poor, $2,000; to his nephew, Joseph Edward Neuhaus, $5,000, household goods, furniture, pictures, jewelry, etc., and “all other articles of personal use, wear and adornment, and any pleasure automobile which I may own at the time of my death.”

The testator died September 20, 1942, at the age of about 80 years. The will and codicil were admitted to probate October 9, 1942. Neuhaus was found to be the only heir at law and next of kin of the deceased.

The complaint was by the executor and prayed for a construction of the sixth or residuary clause of the will, which is as follows:

“All the rest and residue of my property of whatever kind or nature, real and personal, wheresoever situated, I give, devise and bequeath to the University of Notre Dame du Lac, a corporation organized and existing under and by virtue of the laws of the State of Illinois, in memory of my Brother, Charles Smith, known in religion as ‘Brother Alexander’, who was one of the early associates and workers with Father Sorin, the founder of the university of Notre Dame, and said residum shall be known as the ‘Brother Alexander Memorial Scholarship Fund’, and shall be held, invested and reinvested by the Board of Lay Trustees of said University, and the net income therefrom shall be annually awarded by the President of said University as one or more scholarships to worthy students of the University of Notre Dame who are preparing for the priesthood in the Congregation of the Holy Cross.”

February 2, 1944, Neuhaus filed an answer and with it a counterclaim, afterwards amended on May 22, 1944. The answer denied that the residuary legatee, the University of Notre Dame du Lac, an Illinois corporation, was in existence at the time of the death of the testator, on September 20, 1942, and asserted that the residue of the estate (amounting to about $90,000 in value) therefore passed to Neuhaus as his heir and next of kin.

The counterclaim further averred an oral contract between the testator and Neuhaus, whereby it was agreed that in consideration of services in the way of care, etc. to be given to the uncle by Neuhaus and his wife, the testator agreed to execute a will giving his entire property and estate to Neuhaus. The counterclaim alleged the performance of these services, the failure of deceased to execute the will as agreed, and prayed specific performance of the agreement except as to specific legacies and cost of administration.

The University of Notre Dame du Lac, an Illinois corporation, intervened and answered. The executor and others also answered, denying the material averments of the counterclaim.

The cause was put at issue and referred to a master, who reported with findings against the claims of Neuhaus and recommending a decree dismissing his amended counterclaim; also directing the executor to turn over the residuary of the estate to the Illinois corporation, to be held by it “for the charitable, educational, and religious uses, and subject to the trusts, terms, and conditions, provided in Article Sixth of the Last Will and Testament of said decedent. ’ ’ The cause was heard on exceptions of Neuhaus to the report of the master. These were overruled and a decree entered as recommended.

It is the contention of Neuhaus that the bequest to the Illinois corporation lapsed by reason of its non-existence at the time of the death of the testator, and that as to the findings on the counterclaim the court erred in denying motions made in his behalf to continue the cause by reason of his absence in the Army of the United States in a foreign country when it was tried.

While the bequest was to an Illinois corporation this corporation was closely related to the well known Notre Dame University, an Indiana corporation. Its certificate of organization was issued by the Secretary of State of Illinois on November 27, 1934. All the incorporators resided at Notre Dame, Indiana. They and its directors were eách and all members of the Congregation of the Holy Cross and teachers and officers of the Indiana university. As a matter of fact, the Hlinois corporation was incorporated to act as agent and nominee of the Notre Dame University of Indiana. The Illinois corporation, unlike the Indiana, did not have any board of lay trustees. It never functioned in an educational way. It did not file its charter with the recorder of deeds of Cook county. It made no annual reports to the Secretary of State. It had an office, however, at 120 South La Salle street in Chicago and an agent there upon whom process might have been served for the corporation. The attorney general brought an action in the superior court to procure its dissolution. It was served only by publication, and on June 10, 1937, a decree dissolving it was entered. August 23,1944, the corporation, by its vice president, petitioned to have the decree of dissolution set aside. The petition set up that on March 15,1937, pursuant to certification by the Secretary of State, the attorney general filed an information for .dissolution of the corporation; that on March 16, 1937, the sheriff of Cook county returned a summons showing the corporation was not found in his county but averred as a matter of fact that on March 16, 1937, and before and after said date, petitioner maintained an office and agent upon whom summons could have been served at 120 South Lá Salle street in the City of Chicago, Cook county, Illinois, and the petitioner stated that no attempt was made by the sheriff of Cook county to serve a writ of summons on petitioner at that address or at any other place, and that the writ was returned with the certificate by the sheriff, stating he could not find the defendant or any agent in the employ of the defendant in said county of Cook, that this return was made by the sheriff without the summons having left the office of the sheriff; that on the 10th day of .June 1937, a decree was filed in the cause and approved by the court, ordering the dissolution of the corporation and that its franchises be declared null and void and of no force and effect, and further that the clerk of the court should certify the fact of setting aside the order of dissolution to the Secretary of State of the State of Illinois; that upon ascertaining the fact of the entry of this decree, the petitioner paid all fees and taxes due to the State of Illinois and thereafter made annual reports for all the years of its existence, including the year 1943; that all franchises, taxes, initial fees and other fees and charges had been paid; that the Secretary of State has certified to the attorney general of the State of Illinois the fact that petitioner did these things; that the Illinois corporation complied with the statutes of the State of Illinois with reference to domestic corporations doing business in this state and paid all costs accruing in the cause. The petitioner, therefore, asked an order directing the Secretary of State to expunge from his records any court order, memorandum or writing' to the effect that the University of Notre Dame du Lac, a corporation, had been dissolved and the records of the Secretary of State be made “to show that said University of Notre Dame du Lae, a corporation, had complied with the 'laws of Illinois and is authorized to do business in the State of Illinois with the same powers, rights and franchises as existed prior to the date of dissolution on the 10th day of June 1937.

The court found that at the time of the entry of the decree of dissolution the court had no jurisdiction of the defendant and that the University of Notre Dame du Lac had fully complied with the laws of the State of Illinois, and it was ordered and adjudged that the decree entered on the 10th day of June 1937, was “null and void and of no force and effect whatsoever”; that the same was vacated and set aside and held for nought and the corporation restored of record to its standing, with such powers and authority and franchises as it possessed prior to the entry of that decree; that the court should so certify to the Secretary of State, and the Secretary of State should expunge from his records all entries theretofore made, showing that the charter, authority and franchises of the University of Notre Dame du Lac had been revoked and forfeited. Pursuant to the order the Secretary of State issued his certificate to this effect on June 14, 1944.

Neuhaus contends that he could not be divested of his inheritance by an ex parte order entered after the death of the testator, nor could such an order restore the Illinois corporation and divest the heir of his rights to the property. He cites Miller v. Riddle, 227 Ill. 53, and Volunteers of America v. Peirce, 267 Ill. 406. The cases are not in point. The defendants there were mere voluntary societies organized by individuals who had abandoned them. They were properly held without capacity to take because in each case the society had ceased to exist.

Neuhaus contends the court was without jurisdiction or power six years after term time to vacate the decree of dissolution since the decree, the sheriff’s return and the record showed affirmatively the court’s jurisdiction of the corporation at the time the decree of dissolution was entered. The decree of dissolution was entered June 11,1937. The petition to set it aside was filed August 23, 1943. It is true there was no notice to counterclaimant. It is elementary that where a judgment or decree has been entered by a court upon proper personal service the court is without jurisdiction to set it aside after the term has expired at which it was entered. This particular decree, however, was not entered upon personal service. It shows the sheriff did not obtain such service when he could have done so and the State resorted to publication. We are not cited to any provision in the statute which gave to the trial court power to enter a decree of dissolution upon service by publication when the defendant had an office in the county and an agent there upon whom service could have been obtained. The only parties interested were the State on one hand and the defendant corporation on the other. The attorney general, by virtue of the statute, represented the State. The corporation was not represented because it was not personally served and did not have actual notice or knowledge. When the facts were made to appear by the affidavit of the vice president of the corporation, the attorney general stipulated giving the court jurisdiction to set aside the decree. It would be an unusual situation if a stipulation of this kind could not be agreed to under such circumstances.

We have read the cases cited, Barnes v. Chicago City Ry. Co., 185 Ill. App. 148; Madison & Kedzie State Bank v. Cicero-Chicago Corrugating Co., 351 Ill. 180; Chapman v. North American Life Ins. Co., 292 Ill. 179; and Chicago Faucet Co. v. 839 Lake Street Bldg. Corp., 285 Ill. App. 151. We do not question the law as stated in these cases but hold the cases inapplicable to the instant case.

The decree finds that the corporation was in existence on the date of the death of the testator. The certificate of the Secretary of State, in evidence, justifies that finding. Ill. Rev. Stat. 1943, ch. 32, par. 163a94 [Jones Ill. Stats. Ann. 32.256 (95)]. It is the general rule that the existence of a de facto corporation cannot be attacked collaterally. Woodlawn Social Entertainment Ass’n v. Anderson, 187 Ill. App. 507; Cozzens v. Chicago Hydraulic-Press Brick Co., 166 Ill. 213; Morrison v. Forman, 177 Ill. 427. It has also been held that an individual in his own right may not question the existence of a corporation. People ex rel. Cassidy v. James Karban & Co., Inc., 307 Ill. App. 310. These are only a few of many cases which might be cited.

Counterclaimant cites the case of Chicago Title & Trust Co. v. 4136 Wilcox Bldg. Corp., 302 U. S. 120, but facts there are in no wise similar to this case. See, also, Ill. Rev. Stat. 1943, ch. 32, par. 157.95 [Jones Ill. Stats. Ann. 32.097].

The stipulation to set aside the decree of dissolution was not an attempt to create a corporation or restore a defunct one, although, incidentally, that was the result of the order entered. Neuhaus was not a party to that proceeding and would have had no right to become a party to it, even if he had asked leave to appear. The proceeding here was not in aid of a fraud but was necessary to prevent one. Sullivan County R. v. Connecticut River Lumber Co., 76 Conn. 464. To that end a court of equity may revive or resuscitate a dead corporation. It is a well-established rule in this State that a court of equity will not allow a charitable trust to fail for want of a trustee. (Jansen v. Godair, 292 Ill. 364, 377); nor will it be allowed to fail for uncertainty or because the manner specified for managing the gift cannot be carried into exact execution (French v. Calkins, 252 Ill. 243, 257; Glader v. Schwinge, 336 Ill. 551, 559; Bruce v. Maxwell, 311 Ill. 479, 486).

It is next contended the decree should be reversed because the court twice (first at the beginning of the trial and afterwards just before the entry of the decree) denied motions in behalf of Neuhaus to continue the cause of action because of his absence in military service of the U. S. in a foreign country. These motions were made, under the Soldiers and Sailors Relief Act, §201, 50 ITSCA 521. The second motion was a renewal of the first, and affidavits were received for and against the motions. The court found the prosecution of the action would not be materially affected by the absence of Neuhaus from the trial. Under the statute he was an incompetent witness and could not testify. Property involved was personalty and securities, the price of which was quite likely to fluctuate. The testator died September 20,1942. The suit was filed May 7, 1943. Service was served on Neuhaus on the same day. Upon the probate of the will he entered his appearance in the probate court and waived notice of the proof of the will and codicil. He did not file his answer and counterclaim until February 2, 1944. October 3, 1942, he gave a receipt to the executor for a part of the personal effects bequeathed to him under the will. He gave a second receipt to the executor for property of the same kind on August 7, 1944, stating, however, that it was given without prejudice to his rights. The first counterclaim was stricken for want of necessary parties. The amended counterclaim was filed May 22, 1944. It is argued by the university that by consenting to the admission of the will and by accepting and receipting for tangible personal property bequeathed to him under the will, he was estopped from asserting his counterclaim.

In Burns v. First Nat. Bank of Joliet, 304 Ill. 292, 296, the Supreme Court said:

“His (testator’s) intention being that all of the provisions of the will shall take effect, a beneficiary cannot accept that which is given by the will and set up any right or claim, however legal or well founded it may have been, which would defeat or prevent a full operation of the will.”

The same rule is announced in Gorham v. Dodge, 122 Ill. 528, and Madison v. Larmon, 170 Ill. 65. We hold that while the giving of his consent to the probate of the will or his receipt for property, in which he expressly stated the receipt was not to waive his rights may not be an estoppel, his acceptance of a part of the bequest to him without such statement did have the effect of an estoppel, and as this took place prior to his induction into military service, he could not have been injured by his absence from the trial. The question on this point-is whether the trial court abused its discretion in denying his motions for continuance. Boone v. Lightner, 319 U. S. 561.

There is no doubt of the intention of this testator. The decree, in our opinion, rightly construed the will, and it is affirmed.

Affirmed.

O’Connor and Niemeyer, JJ., concur.