author: Mr. Justice Bristow

text:
    Nancy Ann Creighton et al., Appellees, v. County of Pope, Appellant. J. L. Owens et al., Appellees, v. County of Pope, Appellant.

      Opinion filed September 18, 1943.
    J. Ado Whiteside, State’s Attorney, Taylor E, Wilhelm, of Ottawa, and Parke H. Daugherity, of Streator, for appellant.
    Chas. Durpee, of Golconda, C. O. Corley, of East St. Louis, and Grover E. Holmes, of Metropolis, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court.

Plaintiffs, appellees here, were awarded judgments against the County of Pope in various separate amounts ranging from $831.25 to $1,825. One of the plaintiffs is Carlos Craig, who is still living. The other plaintiffs are respective administrators of. the estates of seven deceased Mind persons.

It is contended that Carlos Craig also is blind. These judgments were rendered for the respective amounts of money due under the act called, “An Act for the Relief of the Blind,” approved May 11, 1903 as amended. The cases were consolidated in this appeal.

Except as to Carlos Craig, it is admitted that each deceased blind person had fully qualified under this act and was entitled to receive payments under this act up to the time of his death, and that such payments have not been paid by the County of'Pope. There is no dispute as to the amount of any judgment.

Appellees contend that, since these benefit payments had become due and payable before the date of death, the personal representative can now recover same by an action against the county.

Appellant concedes in his brief that the “blind recipient has during his lifetime a right of action to obtain judgment against the county for the amount due him. ’ ’

Appellant contends that the court erred in entering each of these judgments for several reasons. It insists that pensions and public charity are not contractual obligations; that there was no duty at common law to assist the poor and afflicted; that the statute is silent and does not provide that the right of the blind person to receive such benefit payments survives to his personal representative; that the intention of the legislature was to give bounty only direct to the blind person and that it was not to permit his estate to he enriched by collection of such unpaid amounts; that such claim is purely personal which could not he assigned and therefore, that the right of action died with the claimant; that since some of these blind persons never went into court to enforce payment of these amounts, they “could have waived their rights” and that now their personal representatives are assuming to decide for them after their death, and that collection of these amounts by the personal representatives would, in effect, he giving charity to estates and heirs, contrary to the intention of the legislature.

Appellant urges error for the entry of judgment in favor of Carlos Craig claiming that he did not make proof showing that he was entitled to blind relief; that he did not prove that he is legally blind; that the trial court, by guess, found that he is blind; that the blind examiner could only certify him as blind and the board of commissioners of Pope County were justified in denying him blind relief.

The modern view of public duty to the helpless and unfortunate has changed the aspect of thought on that subject. On our statute hooks-today are written many laws providing for the payment of money from the public treasury for the direct support of such unfortunate individuals. The words “relief” and “benefit” and such like terms appear in the title and wording of these various acts. Such benefit payments are provided for school teachers, widows, policemen and their widows and children, firemen, widows of soldiers and others, including blind citizens.

The Supreme Court of Illinois in People v. Lyons, 374 Ill. 557, at pages 562, 563, quotes with approval this language: “It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions.”

These statutes are founded on public policy and have as their fundamental basis the proper care and support of certain indigent members of the general public to protect them from demoralizing influences of ill nurture, disease and threat therefrom to the public at large, squalid surroundings, and to avoid necessity and expense of committing such persons to State institutions. These statutes are bottomed upon the theory that it is more advantageous to the State to anticipate such a necessity and to supply the needs of the person by payment of money directly for their living and support. These statutes as a general rule, are separate and distinct from the poor laws, and it is generally considered that the system set up is not a part of the system of poor relief. Payments are usually made periodically. They are commonly called pensions. They are gratuitous payments made as part of the public civil pension system.

Since the beginning of this nation, it has been considered that the service of a man in the military force of this country was sufficient to create a duty upon the public to make payments to Mm from the public treasury. These payments are military pensions. The underlying thought and realization of obligation and duty of the State has been extended to two other classes of pensions. In one class are found those who have been in public employment, such as firemen, policemen and their widows and children and school teachers; in the other class are afflicted persons such as the old aged, the indigent mother and her children, and the blind.

All such payments, both military and civil, are generally classified in the statutes of Illinois under the heading of charities. They are all based upon the theory of relief, aid and support. The words “benefit, aid and relief” may be noted throughout the text of almost all of these statutes. The Mother’s Pension Act is an act which reads as follows: “An Act to provide aid to dependent children in their own home.” This act provides that the mother “may file an application for relief.” Another act is an act to grant “relief” to indigent war veterans and their families. Another act is entitled “An Act for the relief of the blind.” This act in numerous places refers to “benefit” wMch the blind person “is entitled to receive.”

One constantly hears and reads of soldiers ’ pensions and bonuses, policeman’s pensions, fireman’s pensions,, old age pensions, widows’ pensions, and blind pensions. The tendency seems to evade denoting such persons as paupers who are receiving public aid, charity and alms. The more dignified term of pension is more commonly heard. It imports respect to the recipient and implies duty and obligation upon the State to specifically care for such class of its citizenry.

An examination of this “Act for the relief of the Blind,” Ill. Rev. Stat. 1941, ch. 23, p. 308 [Jones Ill. Stats. Ann. 18.071 et seq.\, will establish this modern conception of this duty.

In this act are found certain statements as follows: In section 1, “It is lawful for and obligatory upon each county of this state to contribute such sums of money . . . toward the support of each blind person”; in section 1%, “Such county shall levy and collect a special tax for the purpose of paying such support ... which fund is hereby created and used for the support of blind persons as herein above provided”; in section 2, “That all male persons . . . and all female persons . . . shall receive as a benefit ”; in section 4, “It is hereby made the duty of the Board of County Commissioners ... to appoint a regularly practising physician whose official title shall be ‘Examiner of the Blind’ ”; in section 6, “All persons claiming the benefit provided herein may . . . make affidavit . . . which shall be deemed an application for said benefit”; in section 7, “And such applicant shall be entitled to said benefit”; in section 8, “It is hereby made the duty of the Board of County Commissioners ... to provide in the annual appropriation for the payment of persons SO ENTITLED TO SAID BENEFIT . . . and to Cause warrants ... to be drawn . . . payable to each of said persons . . . each month . . . during the life of said persons. . . . Said Board shall also provide . . . for payment of persons who may become entitled thereto.”

Examination of the provisions of this act reveals that it was the intention of the legislature that a mandatory duty be imposed upon the county to pay benefits “for” and “toward the support” of the blind and that the blind person be “entitled to the benefit.” There is no positive provision in the act itself stating that the blind person could not assign a warrant received, or an amount accrued and due. There appears no prohibition against payment of amounts accrued and due upon death to the administrator of his estate.

The groceryman, the doctor, and the landlord will have little faith in the credit risk of a blind pensioner, should his pension be paid only when and if he lives long enough to collect from a county that may be in financial distress. Appellant concedes that at the expiration of each month, a blind person can sue the county, obtain judgment, and in that way and that way alone, give his creditors assurance that their accounts will be paid. Certainly no such burden as that should be placed on this afflicted class in order that they might eat, sleep, and continue well. This legislation was designed to assist the blind, and not to burden and embarrass them, and every reasonable and liberal construction should be accorded such legislation in order that its helpful and beneficial purposes may be fully accomplished.

A vested right of action is property in the same sense in which tangible things are property. Vested rights may be creáted by statute. 6 R. C. L., p. 308, secs. 294, 295; 11 Am. Jur., p. 1206, sec. 377; p. 1200, sec. 371; 6 R. C. L., p. 316, sec. 304; p. 306, sec. 292. Where a cause of action does survive, it is a property right. Havill v. Havill, 332 Ill. 11.

The Supreme Court of Illinois has determined that when payments under this blind pension act have accrued and become due and payable, the beneficiary has a vested right to sue the county for the amounts due. Proffitt v. County of Christian, 370 Ill. 530. The Supreme Court determined there that such payments are not considered as a' gift or bounty; that the act requiring the county to provide for and make such payments as a public charity are in the same class as support of dependent children; that the general assembly imposed the obligation upon the county, as a duty; that the act declared the qualified blind person to be “entitled to said benefit”; and that, therefore, he was entitled to judgment of court to enforce his right.

This court has had before it and has passed upon the precise question involved in this appeal. We have held that the administrator does have the right to recover such payments accrued during the lifetime of the blind decedent. In People ex rel. Powles v. County of Alexander, 310 Ill. App. 602, the identical arguments were urged there by the appellants as in the instant case, namely; that the blind pension act does not make any provision for the survival of any rights accruing thereunder, and that section 123 of the Administration Act makes no provision for the survival of such cause of action. We there held that the cause of action did survive for the reasons recited in our opinion that, when the expectancy of benefit became due, it changed from a mere expectancy to a present vested property right; that the obligation took the form of a debt owing by the county, implied in law or quasi contract; and that the liability then became one for money had and received. 12 Am. Jur., pp. 502, 503, sec. 6. In legal contemplation, the County of Pope assumed to perform a duty enjoined upon it by law. A right of action in assumpsit lies upon an implied contract. St. Hedwig’s Industrial School for Girls v. County of Cook, 289 Ill. 432.

An examination of the record shows that the original. plaintiff, Mary Lou Poe, died during the pendency of this suit and that her administrator was substituted as plaintiff. The Appellate Court of Illinois for the third district in the case of Lyons v. County of Morgan, 313 Ill. App. 296, had for consideration a like case where the plaintiff died while the suit was pending. The Appellate Court affirmed the judgment entered in favor of the substituted administrator.

A view contrary to the holding of this court has been taken by the second district of the Appellate Court in the case of People ex rel. Shippey v. County of La Salle, 310 Ill. App. 541. We have carefully considered that case. In the light of what has been said above and the decision of the Supreme Court of this State in Proffitt v. County of Christian, 370 Ill. 530, we are constrained to adhere to the holding we made in People ex rel. Powles v. County of Alexander, supra.

Appellant advances the argument that the right of the blind person to benefits was personal, and, hence, could not survive. An illustration would be an agreement for the performance of legal services which is personal and unassignable, but when such legal services have been rendered and certain definite payments have become due, the right becomes a vested property right and such right then would survive. Galpin v. City of Chicago, 269 Ill. 27, 56. By the same token, blind benefits which have accrued and which should have been paid, and only payment remains to be performed become vested property rights and assets of the estate of the blind person upon his death. We find no provision in this act making any condition to the contrary. If a blind person received his benefits and did not spend the same, they would be assets of his estate upon his death, subject to the payment of his debts. If he received such payments and did not expend the same, but received his personal support by supplies purchased on credit, his creditors would be entitled to payment out of his estate which, under such illustration, would be money received from the public treasury. Appellant argues with great repetition that if an estate of a blind person obtained possession of moneys which the State intended for the support of the blind person, such funds could not be assets of an estate. Collection from the county by the administrator of payments due and vested would not be the granting of charity to the administrator as appellant contends. It would merely be payment to the estate of an obligation which the decedent would have possessed had the county performed its duty and paid him.

In North Chicago St. R. Co. v. Ackley, 171 Ill. 100, the Supreme Court of Illinois quotes with approval, as follows: “So, too, equity will not recognize assignments of certain species of property which it would be against the policy of the law to allow the owners to part with. These are, pensions . . . the salaries of judges, and other revenues and emoluments of a kindred character which reasons of State require should remain always for the benefit of the person to whom they were originally given. ... Yet in all these cases any balance unpaid at the time of death would survive to the personal representative. But the right of assignment is precluded on principles of public policy.”

By analogy, we believe that each of these rights of these deceased blind persons to recover accrued and unpaid pension payments from the County of Pope survives to the personal representative.

Appellees contend that these claims of these blind persons were choses in action. Appellant in its brief asserts “the deceased persons herein, while they were alive, had choses in action that they never reduced to possession.” When a claim is not assignable because of some personal prohibition, and it develops into a chose in action, it then is assignable and enforceable under section 18 of the Civil Practice Act. Ginsburg v. Bull Dog Auto Fire Ins. Ass’n, 328 Ill. 571. Appellant claims as error ■ the fact that the deceased persons “could” have waived their right to recover from the county. The answer of the appellant did not rely upon waiver. Illinois Civil Practice Act, sec. 43 (4). Furthermore, we find nothing in the record establishing waiver. Waiver is the intentional relinquishment of a known right. We find nothing in this record showing that any of said blind persons waived their rights. First Lutheran Church of Pontiac v. Rooks Creek Evangelical Lutheran Church, 316 Ill. 196.

The case of the living plaintiff, Carlos Craig, requires a separate consideration.

A line of the blind register of the clerk was introduced in evidence showing that an order for $90 was issued to him on January 2,1930. The defendant then offered in evidence the record of the County Commissioners dated June 16,1931, reading as follows: “New application was made by Carlos Craig for blind. Same referred to Dr. Barger for examination. Claim refused upon report of Dr. Barger (partially blind).” Defendant then offered a further record of the Commissioners dated December 21, 1931, reciting that it was that day ordered by the board “that all of the applications for blind relief that were properly endorsed by the examining physician, Dr. L. S. Barger, as being totally blind, be allowed, and placed on the blind relief, same to be in effect January 1, 1931.” It appears that the foregoing was all the evidence in the ease of Carlos Craig.

Appellant contends that until the record shows that a person is blind and that he has been placed on the roll, he is not entitled to relief. People ex rel. Howse v. County of Shelby, 257 Ill. App. 349.

Carlos Craig, in his brief, simply refers to a paragraph in the original complaint which alleged that all plaintiffs were duly certified by the examiner as qualified and that the County made provisions for the payment of each of said persons, and that they were placed on the roll. Carlos Craig then states in his brief that such allegations were admitted in the amended answer of the County. An examination of the record itself shows that on January 25, 1940, defendant filed its amended answer and in same did admit such allegations. The record further shows that the defendant, on November 4, 1940, filed another amended answer in which it specifically denied each of said allegations of the complaint. It appears that the case went to trial on the complaint and on the second amended answer.

Appellee Carlos Craig has cited no authorities in support of his extremely brief discussion of the judgment rendered in his favor. In his brief he simply quoted the said allegations in the complaint and stated that they had been admitted.

The statute of Illinois provides for an orderly procedure to be followed before a person, even if blind, would be entitled to benefits. The provisions of the statute are found in pars. 282-286, secs. 4-8, Ill. Rev. Stat., ch. 23 [Jones Ill. Stats. Ann. 18.07A-18.078].

The preceding section 2% defines who shall be classified as a blind person. Section 4 provides for the appointment by the county commissioners of a practicing physician whose official title shall be “Examiner of the Blind.” Section 5 prescribes the duty of examiner, requiring him to examine applicants to issue certificate showing whether or not the person is blind, and to keep a register. Section 6 provides that all persons claiming the benefit may go before the county clerk and make an affidavit which shall be deemed an application for the benefit, and that the clerk shall thereupon refer the application to the examiner. Section 7 provides that the county clerk shall certify to the county commissioners names of applicants so determined by the examiner to. be entitled to the benefit. Section 8 provides that the county commissioners shall provide in its annual appropriation for the payment of such persons so entitled to such benefit. It seems to us clear from all the evidence that it wholly fails to show that Carlos Craig has been confirmed as a blind person or has been placed upon the roll by the action of the county board of commissioners.

In the case of People ex rel. Howse v. County of Shelby, the court also considered a petition for writ of mandamus directed to the Board of Supervisors commanding them that they forthwith take lawful steps to grant the application of the petitioners and to pay them blind relief. The court denied the writ. It referred to section 8 of the act, and pointed out that there was no averment in the petition that the examiner had made the certificate showing that applicant was blind, and concluded with the following: “The act also requires that the persons claiming the contribution of money from the county shall be blind; not partially blind or industrially blind; and that the certificate of the examiner shall certify that they are blind. ’ ’

In the instant case, a judgment is sought against the county. We believe that before a judgment can properly be taken against the county for such unpaid benefits, that it is first necessary that it be shown, affirmatively, that the procedure prescribed by the act has been followed and that such person by the records is shown to be on the roll of blind persons.

From the foregoing, we are of the opinion that the court in this case erred in rendering judgment in favor of Carlos Craig, and that the same should be reversed and remanded, and hereby the same is reversed and remanded as to Carlos Craig.

We are further of the opinion that the court did not err in rendering judgment in favor of the plaintiffs, Arthur Poe, as administrator of the estate of Mary Lou Poe, deceased; Mae Hatton, as administratrix of the estate of Cus Hatton, deceased; Hosea Hogg, as administrator of the estate of Lewis Hogg, deceased; Maggie Stanphill, as administratrix of the estate of William Stanphill, deceased; E. B. Clark, as administrator of the estate of Bird Jamison, deceased; Mattie Class, as administratrix of the estate of Hiram Class, deceased; and that said judgments in favor of said respective administrators should be and the same are hereby affirmed.

Reversed and remanded as to Carlos Craig.

Affirmed as to all other appellees.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Frank Casper, Appellant, v. City of Chicago, Appellee.
    Gen. No. 42,447.
    Opinion filed September 27, 1943.
    Robert E. Dowling, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellee; James A. Yelde and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for personal injuries claimed to have been sustained by him on account of the negligence of defendant in permitting a sidewalk to remain in a defective condition, covered with ice and snow which had formed into hillocks and ridges. There was a jury trial and a verdict in plaintiff’s favor for $15,000. The defendant filed its motion for judgment notwithstanding the verdict and its alternative motion for a new trial. The motion for a new trial was overruled, the motion for judgment n. o. v. was allowed and plaintiff appeals.

The theory of plaintiff is that the city negligently permitted a defective and dangerous condition to exist in the sidewalk; that such defect caused snow and ice to accumulate on the sidewalk and to form into ridges which were allowed to remain for a long time, that plaintiff, in walking over this, slipped and fell and was seriously injured. Defendant’s theory of the case is that there was no defect in the sidewalk; that the presence of snow and ice on the sidewalk was the result of unusual weather conditions for which the city was not liable.

The evidence tends to show that the sidewalk in question was of cement construction. ‘There is a photograph of it in the record and a mark made thereon by the plaintiff during the trial, indicating the place near which plaintiff fell and, which plaintiff contends, shows the sidewalk was defective.

The accident occurred February 3, 1939, in front of the premises known as 2117 N. Cleveland avenue, Chicago, which is a built up section of the city for residence and rooming house purposes. The evidence is further to the effect that from January 30, 1939, to February 3, snow fell almost daily. There was a fall of Í4.9 inches on January 30, within a period of 14 hours. The official weather report shows that this fall of snow broke all Chicago records for a 24-hour period. On February 3, the depth of the snow on the ground was 7.2 inches.

Counsel for plaintiff contends that the evidence shows the sidewalk was cracked and in a defective condition which caused snow to accumulate on the sidewalk. The evidence is further to the effect that the sidewalk at the time and place plaintiff fell was covered with snow to a depth of from 4 inches to 2% feet, according to the various witnesses, and that as a result of the thawing and freezing of the snow it had become icy and was rough and uneven.

Counsel for plaintiff contends that whether the sidewalk was defective as a result of which snow and ice accumulated, and whether it was in hillocks and uneven and slippery, as a result of which plaintiff was injured, were questions for the jury; that the city is liable where snow accumulates on the sidewalk and is in hillocks and ridges as a result of which a person slips, falls and is injured and that this rule has been established by many decisions of this court and the Supreme Court and has not been overruled or modified by our Supreme Court in the case of Graham v. City of Chicago, 346 Ill. 638, aff’g 260 Ill. App. 590, or Strappelli v. City of Chicago, 371 Ill. 72, rev’g 295 Ill. App. 469.

In Mareck v. City of Chicago, 89 Ill. App. 358, it was held that mere slipperiness of a sidewalk occasioned by snow or ice would not make a municipality liable but if ice and snow were permitted to accumulate on the sidewalk in uneven ridges or hillocks so as to render passage dangerous, the city would be liable in case one was injured who was in the exercise of due care, and a number of Supreme Court cases are cited, analyzed and discussed by Mr. Justice Sears, who delivered the opinion of the court. But we think that rule is not now the law in this State. The law is that where the accumulation of ice and snow is from natural causes, although by usage it is uneven and in hillocks, the city is not liable. This is the rule as we understand it laid down in the Graham and Strappelli cases.

In the Graham case, the court said: “What, if any, duty devolves upon a city to remove ice from its sidewalks is a subject of a great variety of opinions, and because of this divergence of views a number of different and contradictory statements of the law have been laid down in the various jurisdictions. However, there is one rule which is almost universal. That is, a city is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes. ... In view of the generality of ice and snow in the winter time, the doctrine has become quite prevalent that it would be an unreasonable requirement to compel a municipality' to remove them from walks and streets.” The court then cites authorities in which it was held that the liability might attach to a city for failure to remove ice and snow from the sidewalks if the accumulation was in ridges or hillocks and then continues: “The decisions in the various jurisdictions upon this question of liability are so varied and numerous that it would be impracticable for us to attempt to analyze them or to harmonize them, but we have reached the conclusion that the reason which underlies the rule exempting cities from liability because of damages from slippery ice is. that of necessity. It is grounded on the fact that it is unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months. Especially is it true in this latitude. But the rule must be predicated on the formation of ice from natural causes, for it would be neither unreasonable, impracticable nor expensive, as a general proposition, to compel the removal of ice from sidewalks which was produced by artificial causes. It is the generality of a situation resulting from natural causes that gives rise to the rule. ’ ’ The language of this opinion was quoted in the Strappelli case. The court in that case said: “In a comparatively recent decision, Graham v. City of Chicago, 346 Ill. 638, this court reviewed at length the conflicting authorities relating to the'general liability of cities for removal of snow and ice from streets and sidewalks. We there laid down a general rule applicable to such cases. ’ ’ Then follows a quotation from the Graham case. And continuing the court said:" The snow and ice on the safety island in question accumulated as a result of natural causes and the condition was undoubtedly a general one throughout the city on the day of the injury. Snow when trampled upon by many pedestrians and when subjected to alternate thawing into slush and freezing forms itself, when frozen hard, into irregular mounds which become slippery and difficult at times to walk upon. This condition is general during wintertime throughout Illinois. As held by us in the Graham case, this prevalent condition produces the reason of necessity which underlies the rule exempting cities in this latitude from liability for injuries on city streets and sidewalks, when the presence of snow and ice is the result of natural causes.”

In the instant case we think the evidence is all to the effect that the accumulation of snow and ice on the sidewalk into hillocks and ridges was the result of natural causes and the court did not err in entering judgment n..o.v.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matchett and Niemeyer, JJ., concur.


text:
    Charles Haut, Administrator of Estate of Estelle Haut, Deceased, Appellee, v. A. F. Kleene et al., Copartners, Trading as A. F. Kleene Company, et al. Appeal of Amy Slad, Trading as Motycka’s Fruit and Vegetable Company, Appellant.
    Gen. No. 42,519.

      Opinion filed September 27, 1943.
    William J. Kafka, of Chicago, for appellant; Clyde C. Fisher, of Chicago, of counsel.
    Ben W. Gleason and George Yellen, both of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of "the court.

Plaintiff brought an action against defendants under the Injuries Act to recover for the wrongful death of his wife charging that defendants were negligent in keeping and selling rabbits. Defendants denied liability and during the trial, by leave of court, plaintiff amended his complaint by charging that the rabbits purchased were intended for consumption by the general public and defendants knew they would be prepared for use as food and thereby impliedly warranted that the rabbits were “free from injurious defects in the handling and consumption” of them; that the deceased as a result of handling and preparing the rabbits for food became afflicted with a disease known as tularemia or rabbit fever, from which she died. During the trial the court eliminated the claim made against defendants, Kleene and Baldwin on the ground that they impliedly warranted the rabbits and the case was submitted to the jury under instructions as to these two defendants on the question of negligence, and as to the defendant, Amy Slad, the case was submitted to the jury on the questions of negligence and implied warranty. There was a verdict in plaintiff’s favor for $2,500 against Amy Slad. Defendants Kleene and Baldwin were found not guilty. Afterward Amy Slad filed her motion for judgment notwithstanding the verdict and for a new trial. The court on disposing of these motions entered the judgment appealed from in which it is recited that the matter came on to be heard on the motion of Amy Slad for judgment notwithstanding the verdict of the jury and “after arguments of counsel and due deliberation by the Court said motion is sustained as to the negligence and wilful and wanton counts and overruled as to the implied warranty count.” Continuing the court overruled the motion for a new trial, entered judgment on the verdict against Amy Slad for $2,500 and also entered judgment on the verdict finding the other two defendants not guilty. Amy Slad appeals.

The record discloses that Friday, November 29, 1940, Charles Haut, husband of the deceased, who then lived at 1528 W. 29th Place, Chicago, went into the small retail store of defendant, Amy Slad, and purchased four rabbits from her. He testified that he asked Mrs. Slad if they were good, fresh rabbits and she said they were. There were about 100 skinned rabbits in the store and he had Mrs. Slad pick out four of them for which he paid $1.50; that he took them home, his wife washed them, cut them up in lengths, put them in a pail of vinegar, seasoning and carrots, and then into the ice-box; that she took them out on Sunday, cooked them and he and his family, consisting of himself, his wife and two daughters, ate the rabbits for dinner; that they were very good and they felt no ill effects from them. That about a week before he purchased the rabbits, his wife had cut her finger, that the Monday after they had eaten the rabbits she complained of headache and backache, the doctor was called, she was treated until December 6, 1940, when she was taken to the County Hospital, where she died December 16. The doctors who had treated her described the cut in her hand and gave as their opinion that she died as a result of tularemia, or rabbit poisoning.

Amy Slad, called by plaintiff under the statute, testified that in November, 1940, she ran the store under the name of Motycka’s Fruit and ¡Vegetable Store, where she and her family lived at 3845 W. 26th street, that she had been engaged in this business at the same address for 17 years; that in November, 1940, she sold dressed rabbits as well as fruit and vegetables and that on November 29 she received “a bunch of rabbits from my husband;” that she had no other rabbits in the store; that he bought the rabbits from the other defendants, Kleene and Baldwin; that at the time her husband brought in 96 rabbits with the skin on; that she then skinned and cleaned them as she had done for 22 years; that “A diseased rabbit looks spotted, every half inch it has a white spot on it and this spot runs through the intestines and when I find one like that I discard it. ’ ’ That when the rabbits were dressed and skinned she washed them and put them on sale; that she did not know Mr. Haut and did not recognize him as being the man who had bought some of the rabbits; that there were several markets in the neighborhood selling rabbits; that at the time, she had a sign in her store on which was written: “You purchase these rabbits at your own risk. Please wear gloves.”

In rebuttal Charles Haut testified he did not see the sign. On cross examination he was asked by counsel for defendant, Kleene, “Howmany times prior to November 29, had Mrs. Haut tried to commit suicide? A. She didn’t even try to commit suicide. She took some medicine. Q. She took larkspur, didn’t she? A. Yes, sir. . . . She went to Manteno for a nervous breakdown . . . she had a depressed mind, but she was not insane.” The evidence further shows that Mrs. Haut, on June 2, 1937, was adjudged insane by the county court of Cook county.

There is other evidence in the record but since we have reached the conclusion that there must be another trial, we refrain from discussing it further.

Counsel for Amy Slad, in their brief say: “The Court erred in overruling the motions of the defendant, Amy Slad, made at the close of plaintiff’s evidence and renewed at the close of all the evidence to instruct the jury to find said defendant not guilty.”

The record discloses that at the close of plaintiff’s evidence motions for a directed verdict were made on behalf of defendants Kleene and Baldwin and instructions were tendered. On the bottom of these motions appear the words: “Ruling Reserved.” Then follows the name of the presiding judge. Following this is written: “After verdict — motion sustained,” signed by the trial judge. Similar motions were made by these two defendants at the close of all the evidence with similar notations. Motions for directed verdict were also made on behalf of defendant Amy Slad and they were each overruled.

In Popadowski v. Bergaman, 304 Ill. App. 422, we spelled out the rule of practice in such case and held that where defendant made a motion at the close of plaintiff’s evidence, the motion could not be reserved if defendant put in any evidence and that the motion could not be renewed at the close of all the evidence but a second motion must be made based on all the evidence. We there said: “Where a defendant makes a motion at the close of plaintiff’s case for a directed verdict, if he desires to save his point, he must introduce no evidence. But if he puts in his evidence and desires a directed verdict, he must make a second motion for a directed verdict. The court in passing on the second motion, must do so in view of all the evidence. (Cook v. Aevermann, 244 Ill. App. 644 (Abst.); Joliet A. & N. Ry. Co. v. Velie, 140 Ill. 59; Fowler v. Chicago & W. I. R. Co. et al., 182 Ill. App. 123.) Some opinions inaccurately state the law to be that where a defendant moves for a directed verdict at the close of plaintiff’s case and the motion is overruled and defendant then introduces his evidence, he must 'renew’ his motion at the close of all the evidence. In such case the motion made at the close of plaintiff’s case cannot be renewed. It is out of the case for all time and, as stated, if defendant desires to have the court of review pass on the question whether plaintiff has made out a prima facie case, at the close of all the evidence, he must make a second motion based on all the evidence.” We made a similar holding in Kahler v. Marchi, 307 Ill. App. 23; Hirshman v. Nat. M. Co., 311 Ill. App. 169 and Goldberg v. Capitol Freight Lines, Ltd., 314 Ill. App. 347, aff’d, 382 Ill. 283. We know of no procedure that would authorize the court to reserve a motion made by de-' fendant for a directed verdict at the close of plaintiff’s evidence after defendant put in evidence. Nor do we know of any procedure that justifies the action of the court when he reserved the motions on behalf of two of the defendants at the close of all the evidence for a directed verdict and afterward the jury returned the verdict in favor of these two defendants to then sustain the motions as was attempted in the record before us. Nor are we familiar with the practice followed when the defendant, Amy Slad’s motion for judgment notwithstanding the verdict was made that authorized the court to sustain her motion “as to all negligence and wilful and wanton counts” and overruled it on the question of implied warranty of the rabbits.

The record further discloses that during the taking of the evidence, counsel for defendants Kleene and Baldwin, moved that the charge made against them in the complaint, as amended, upon the ground that they were liable on an implied warranty, be stricken. Tbe motion was allowed. The case was submitted to tbe jury as shown by tbe instructions on tbe question of negligence as against tbe three defendants and on tbe question of implied warranty as against defendant, Amy Slad, and her counsel contend that tbe instruction on tbe implied warranty was improper and prejudicial. By it tbe jury were told that it is tbe law in this State that- where a retailer sells articles of food for immediate consumption be is a “warrantor that tbe articles be sells are wholesome and free from defects that may injure tbe health of tbe person for whom they are purchased” and if they find that Amy Slad sold tbe rabbits for immediate consumption that were “diseased or infected with anything unwholesome, and which rendered it unwholesome as food and which could not be perceived by tbe plaintiff or bis intestate and that by reason of such defect, Estelle Haut was made ill” and died as a result, and if tbe jury found she and her next of kin were in tbe exercise of ordinary care for her own safety, then tbe law required defendant to compensate plaintiff.

Counsel for defendant Slad contend this instruction was erroneous and unwarranted for tbe reason that it is undisputed that tbe rabbits were cooked and eaten with no ill effects which showed they were good food and there was nothing in tbe instruction which referred to tbe question of tbe handling of tbe rabbits, as plaintiff bad alleged in bis amended complaint. In view of tbe state of tbe record, which we have above set forth, we think tbe instruction might tend to confuse the jury. But in any event, we are of opinion that tbe issue can be submitted as against tbe defendant Amy Slad without any confusion.

Counsel for defendant Slad say that tbe decided weight of authority in tbe United States bolds that there is an implied warranty that meats sold for immediate consumption are wholesome and that this implied warranty cannot be extended to the handling and preparation of meats. There is also some argument that the implied warranty, if any, extended only to Charles Haut and not to his wife or family. There are a number of cases from jurisdictions that hold that the implied warranty in such cases does not extend beyond the immediate purchaser but we think they are unsound. To say that in the case at bar there was an implied warranty to Charles Haut who purchased the rabbits for food but that it did not extend to his wife and children, in our opinion does not make sense. This question has recently been given careful consideration by another division of this court in Welter v. Bowman Dairy Co., 318 Ill. App. 305, in which the conflicting authorities on this question are analyzed and discussed. The court speaking by Mr. Presiding Justice Burke said: “Apparently, this question has never been presented directly to a court of review in this State ’ ’ and it was held, that the implied warranty of fitness of food for human consumption extends to one although not the purchaser. We agree with this holding. See also Rubbo v. Hughes Provision Co., 67 Ohio App. 123, 36 N. E. (2d) 144.

For the reasons stated, the judgment of the circuit court of Cook county is reversed and the cause remanded. ' .

Reversed and remanded.

Matchett and Niemeyer, JJ., concur.


text:
    Albert Moscov et al., Appellants, v. Mutual Life Insurance Company of New York, Appellee.
    Gen. No. 42,548.
    Opinion filed September 27, 1943.
    Rehearing denied October 11, 1943.
    Reginald A. Barnett, of Chicago, for appellants.
    Winston, Strawn & Shaw, of Chicago, for appellee; Louis W. Dawson, George B. Christensen and Edward J. Wendrow, all of- Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

October 31, 1939, Theodore Moseov, by Nathan Moseov, his next friend, brought suit against the Mutual Life Insurance Company of New York on a policy issued by it, to recover disability benefits and the return of premiums paid by him. Pending the suit plaintiff died and the beneficiaries named in the policy were substituted-as plaintiffs. At the close of plaintiffs’ evidence the court directed a verdict for defendant upon which judgment was entered and plaintiffs appeal.

The record discloses that January 12, 1928, defendant issued its policy of insurance whereby, in consideration of premiums paid and to be paid, it agréed to pay to plaintiffs, as beneficiaries, $2,000 upon proof of the death of the insured or $4,000 if his death resulted from bodily injuries through external, violent and accidental means. The policy further provided that “if the Insured is totally and presumably permanently disabled before age 60,” the company would pay to the insured $20 monthly during such disability, “increasing after five and ten years continuous disability, besides waiving premium .payments,, all upon the conditions set forth in Section 3.” The pertinent part of Section 3 is: “ Benefits in Event of Total and Permanent Disability before Age 60. . . .

“When Benefits become Effective. — If, before attaining the age of sixty years and while no premium on this Policy is in default', the Insured shall furnish to the Company due proof that he is totally and permanently disabled, as defined above, the Company will grant the following benefits during the remaining lifetime of the Insured so long as such disability continues.
“Benefits, (a)- Increasing Income. — The Company will pay a monthly income to the Insured of the amount stated on the first page hereof ($10 per $1,000 face amount of Policy), beginning upon receipt of due proof of such disability and increasing after sixty consecutive monthly payments have been made to one and one-half times such amount and after-sixty further consecutive monthly payments have been made
“(b) Waiver of Premium. — The Company will also, after receipt of such due proof, waive payment of each premium as it thereafter becomes due during such disability. ’ ’

The policy is printed and on the back of it the following is also printed: “Supplementary Benefits to Section Entitled ‘Benefits in Event of Total and Permanent Disability before Age 60.’

“Benefits if Proof Delayed and no Premium in Default. — If, while no premium is in default, the proof furnished the Company under the section providing for ‘Benefits in Event of Total and Permanent Disability before Age 60’ is such as to entitle the Insured to the Disability Benefits provided for therein, and if due proof is also furnished the Company that such disability has been continuous since its beginning, the Company will;

“ (a) Begin the monthly income payments provided • for in such section as of the end of the first completed month of such disability if earlier than the date of receipt of such proof instead of as of the date of receipt of such proof, and,
“(b) Return any premium due after the beginning of such disability which has been paid during the continuance thereof.”

March 18,1938, a certificate of a physician was given the defendant company, notifying it that the insured, Theodore Moseov, was suffering from paralysis agitans and had been unable to follow his usual work since August 11, 1933. Demand was made on the company to pay the disability benefits beginning August 11, 1933, and to return the premiums which had been paid since that date. This the company refused to do claiming they were not liable under the policy since it had not been notified of the disability on or prior to May 15, 1934, the date on which Moseov was 60 years of age. Afterward this action was brought.

As stated by their counsel plaintiffs contend that the “Giving of notice of disability before age sixty was not a condition precedent. The rider changed the policy from one which required notice before age sixty to one in which the insured’s right to disability benefits accrued and became absolute qn date of disability before age sixty.” And counsel says that if the policy^ did not have printed on the back the rider or “Supplementary Benefits” above quoted, the furnishing of proof of disability by the insured before he reached the age of 60 would be a condition precedent. This is a correct construction of the policy, Jabara v. Equitable Life Assur. Soc., 280 Ill. App. 147. But counsel says that this provision of Section 3 requiring the giving of notice as a condition precedent was eliminated by the rider. We are unable to agree with this contention. The so-called rider is contrary to Section 3 of the policy as to (1) when the first disability benefit is due and payable, and (2) the return of the premiums paid during disability. Section 3 of the policy provides that defendant company will make disability payments “beginning upon receipt of due proof of such disability,” while the rider provides that if there is delay in making the proof of disability, the monthly payments will begin from the time of the disability, and not from the receipt of proof of disability. Section 3 also provides that after the company receives proof of disability they will waive the payment of premiums from that time, while the so-called rider says that any premiums made after disability will be returned by the company. It is difficult to conceive how any policy could be drawn with such inconsistent provisions but one of the reasons may ,be that the policy, was so long that this caused the inconsistencies mentioned. We have many times suggested that policies should be short. Kiefer Tanning Co. v. Alliance Ins. Co., 266 Ill. App. 362; Wisz v. Metropolitan Life Ins. Co., 277 Ill. App. 343.

We think that the rider did not eliminate the provision of the policy requiring that proof of disability be made before the insured was 60. The language of the policy in this respect is unambiguous and therefore must be construed as any other-contract.

Counsel for plaintiffs further contends that “Even if the giving of notice before age sixty were a condition precedent, the insured was excused from giving notice before age sixty because of the impairment of his mental faculties. ”

There was some evidence tending to show that plaintiff was suffering from mental and physical disabilities and counsel says if such “impairment of his mental faculties,” would excuse Moscov from making the proofs before age 60 the court should not have directed a verdict. But the question of such disability should have been submitted to the jury. This is conceded by counsel for defendant. They say: “For the purposes of argument we shall assume there was evidence to warrant the jury finding the insured was insane before age 60, although as we have hitherto pointed out, this is not the fact.” But they say that under the law of Pennsylvania (the policy in question having been issued in that State) or under the law of Illinois, the insanity of the insured does not excuse the making of proof of disability before the age of 60.

Many cases are cited, discussed and applied by counsel for plaintiffs, two of which are, Mutual Life Ins. Co. of N. Y. v. Drummond (C. C. A.), 111 F. (2d) 282, and Mutual Life Ins. Co. v. Heilbronner, 116 F. (2d) 855, which hold that insanity excuses the'insured from making proof of disability during the period of the insanity. Likewise many cases are cited by counsel for defendant which they say hold directly to the contrary, some of which are, Courson v. New York Life Ins. Co., 295 Pa. 518,145 Atl. 530; Farmers Trust Co. v. Reliance Life Ins. Co., 140 Pa. Super. 115, 13 A. (2d) 111; Bennett v. New York Life Ins. Co. (Idaho), 121 P. (2d) 551.

The point has not been decided by onr Supreme Court and the case of Continental Nat. Bank & Trust Co. v. New York Life Ins. Co., 257 Ill. App. 651, in which case the opinion was not published, cited by defendant we think, can be distinguished. The question has not been passed upon by our Supreme Court.

We have considered all'of the cases cited by counsel in their able briefs on this question but we think it unnecessary to discuss them for we have reached the conclusion that the law of Pennsylvania is that the insanity of the insured does not excuse the making of proof required by insurance policies. Farmers Trust Co. v. Reliance Life Ins. Co., 140 Pa. Super. 115, 13 A. (2d) Ill. In Mutual Life Ins. Co. of N. Y. v. Johnson, 293 U. S. 335, where the evidence was to the effect that the insured was “totally and permanently disabled, not only physically but mentally, to such an- extent that he was unable to give notice to the insurer in advance of the default” in payment of premium, Mr. Justice Cabdozo, in delivering the opinion of the court cited many authorities on each side of the proposition and said: “In this situation we are not under a duty to make a choice for ourselves between alternative constructions as if the courts of the place of the contract were silent or uncertain. Without suggesting an independent preference either one way or the other, we yield to the judges of Virginia expounding a Virginia policy and adjudging its effect. The case will not be complicated by a consideration of our power to pursue some other course. The summum jus of power, whatever it may be, will be subordináted at times to a benign and prudent comity. At least in cases of uncertainty we steer away from a collision between courts of state and nation when harmony can be attained without the sacrifice of ends of national importance.”

The policy in suit was issned in Pennsylvania and is to be construed according to tbe laws of that State of wbicb under our statute, we take judicial notice, Ill. Rev. Stat. 1941, ch. 51, pars. 48a, 48g [Jones Ill. Stats. Ann. 107.122, 107.123 (1)].

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Matchett and Niemeyer, JJ., concur.


author: Mr. Justice Matchett

text:
    Eugene F. Schwaan, Jr., Executor of Estate of Eugene F. Schwaan, Deceased, Appellant, v. Ida Schwaan, Appellee.
    Gen. No. 42,558.

      Opinion filed September 27, 1943.
    Bell, Boyd & Marshall, of Chicago, for appellant; Victor M. Harding, Jr., of Chicago, of counsel.
    Hershenson & Hershenson, of Chicago, for appellee ; James B. McKeon, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the ' court.

Eugene E. Schwaan, a resident of Chicago, died testate September 16, 1939. His son, Eugene F., Jr., was named executor of the will and accepted. Letters issued to him December 1, 1939. The decedent left him surviving his widow, Ida, who was his third wife, and three children born to him by his first wife. The-will was executed in 1936. It bequeathed his personal estate to the three children, share and share alike, adding, “But I give to my wife; Ida, her legal share thereof.”

February 8, 1940, the executor filed a petition and notice “to discover assets,” naming the widow as respondent. Hearings were held at which she and others testified. January 28, 1941, an order was entered by the probate court dismissing the petition of the executor. No appeal was taken.

February 11, 1942, a second petition “for citation to recover property and discover information” was filed by the executor. It set up the filing of the first petition on February 8, 1940, and the order dismissing it. It prayed respondent Ida answer; that she be required to turn over to the executor $4,800, either With interest from March 8, 1939, or the income and profits derived by her from this sum of money since that date. It prayed other and further relief.

Despondent answered denying the right of the executor to the relief prayed on the merits and as further defense set up the proceedings on the petition of February 8, 1940. She averred that all the matters alleged in the last petition were inquired into on the first and there adjudged. She prayed an order so finding be entered and she discharged.

March 10, 1942, the probate court entered ah order denying the prayer of the executor’s petition for citation. The executor appealed to the superior court, where the matter was heard de novo. June 29, 1942, the executor made a motion for a finding in his favor, or in the alternative for a new trial. An order was entered reciting the former citation in the probate court and holding that the order entered by that court January 28, 1941, dismissing the petition of the executor, was an adjudication and “a complete bar at law to the maintenance of this proceeding.” The order further found that Ida Sehwaan had no property or assets of the deceased in hqr possession and that she had good title to the property claimed by the executor. From that order the executor appeals.

The first question for decision is whether the previous citation is a bar to this proceeding. There is no doubt evidence was taken on the first citation material to this controversy between the parties. The jurisdiction of the probate court in a matter of this kind is purely statutory. Ill. Dev. Stat. 1941, ch. 3, sec. 335 [Jones Ill. Stats. Ann. 110.432]. The primary purpose' of the statute is undoubtedly to confer jurisdiction on the probate court to compel discovery in cases of this kind. To that end the statute provides for a proceeding summary in its nature and informal, and in a proceeding purely of that nature the power of the court may be exercised repeatedly with, reference to the same subject matter. In a proceeding merely for discovery there can be no adjudication for the reason that there is no issue to be tried on which a formal and final judgment may be determined and entered. The Supreme Court in Blair v. Sennott, 134 Ill. 78, said:

‘ ‘ The proceeding may be repeatedly instituted against the same party.”

In Murphy v. McMahon, 131 Ill. App. 384 at 386, the Appellate Court said:

“~We have no doubt that, notwithstanding the dismissal of one citation, the court may lawfully issue another, . . . and the order dismissing the first citation, without any saving words, is no bar to the issuance of a subsequent citation.”

This seems to be the general rule under similar statutes. It has been so held under section 21a of the national Bankruptcy Act, 11 USCA, sec. 44(a), where the proceeding is a general inquiry; Remington on Bankruptcy, 4th Ed., sec. 1997. The author states, “ . . . it is an investigation, not a trial.” It has been so held in numerous well considered cases. In re Bryant, 188 Fed. 530 (D. C. Pa.); In re Mellen, 97 Fed. 326 (D. C. N. Y.); In re Eastern Utilities Investing Corp., 23 F. Supp. 719, 723, aff’d 98 F. (2d) 620 (C. C. A. 3).

The respondent says, however, that the Illinois decisions were prior to the enactment of the amendment of 1925 to sections 81 and 82 of the Administration Act, when the probate court was without jurisdiction to try and determine questions of title'; that such right and jurisdiction exists since the amendment, and that since the probate court now has the power to determine these matters fully the decisions . are no longer controlling. We do not doubt this. It devolves upon the party who would introduce a prior adjudication as a defense to a second trial of the same issue to show affirmatively that the issue was tried by a court having jurisdiction, and that it was between the same parties and was finally determined. There is no proof here establishing any such determination of the issue with respect to the ownership of the property here involved. The first citation did not pray anything more than a discovery and the order dismissing the citation does not show that any matter had been determined upon the merits. This petition, on the other hand, prays such an adjudication, and the issues here were tried out. Such, we understand, would be the rule applicable to proceedings under the statute as it now exists. Thus in Keshner v. Keshner, 376 Ill. 354, the Supreme Court said:

“Those sections of the Administration act which are referred to above are intended to provide a comprehensive and summary means for the discovery and recovery of assets, or of their value if they have been converted. The proceeding is purely statutory and is neither at law nor in equity. It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law on demand of the parties, where questions arise concerning claims of adverse title or interest, and this provision is valid. . . . The proceeding may be merely for the purpose of obtaining information with no adversary aspects, or it may develop into an out and out suit for the recovery of money.”

To the same effect is Hire v. Hrudicka, 379 Ill. 201. "While the right of the probate court to try out under the statute as it now exists the title to property claimed adversely has been sustained in many cases (see Johnson v. Nelson, 341 Ill. 119; Bates v. Lutz, 220 Ill. App. 54; Rone v. Robinson, 188 Ill. App. 438; People ex rel. Deane v. Fort Dearborn Trust & Savings Bank, 232 Ill. App. 109) in neither of these cases nor any other case construing this statute that has been called to onr attention has it been held that a party who uses the statute for the purpose of discovery has cast upon it the duty of making up and trying out the issue with reference to the matter in controversy, in such a way as to cause a final determination of it to be made. To do so would make its use as a means of discovery, for which it is primarily intended, precarious indeed. We hold that there is no proof in this case sufficient to sustain the defense that the issue as to the ownership of the property here in question was determined in the prior proceeding.

It may well be that the rights of the administrator and the respondent might have been adjudicated in the former proceeding but the record fails to show that there was judgment between them. It is for the party pleading to prove his allegations by evidence. This record, we hold, fails to establish such proof.

This makes it necessary that we discuss the merits of the charges made in this second petition as disclosed by the evidence. It appears that the deceased died testate on or about September 16, 1939 and Eugene Schwaan, Jr., who was named as executor in the will, afterwards duly qualified and has continued to act as such. The only personal property coming to the hands of the executor was the balance of a checking account in The First National Bank of Chicago, amounting to $926. This executor, on February 8, 1940, filed his petition above referred to as the second petition, in which he asked that a citation issue against the respondent, Ida Schwaan, for her appearance to answer certain inquiries and particularly asked that she be required to deliver and turn over to the petitioner, as executor, the sum of $4,800 said to be withheld by her, together with any income or profits or interest, and also the further sum of $1,800 said to be withheld by her, also with income or interest.

The answer of respondent denies that she has retained or has in her possession any moneys or property belonging to the estate. The issues presented by the pleadings resolve themselves into whether the two funds, one of $4,800 and the other of $1,800, are the property of the estate or of the respondent, Ida Schwaan. The deceased, Eugene F. Schwaan, Sr., at the date of his death and prior thereto had a safety deposit box with the National Safety Deposit Company in the First National Bank Building in Chicago. To this box the respondent, Ida Schwaan, his wife, also had access. There is some detail of testimony as to visits made to this box but it appears without dispute that the respondent, Ida Schwaan, removed from the box and had in her possession at the time of the death of Eugene F. Schwaan, Sr. the amount of $4,800 and the other sum of $1,800 which had been on deposit in an account claimed by respondent to be held in joint tenancy by . her and the deceased and that said sum of $1,800 had been drawn out of said account on November 6, 1939 by Ida Schwaan and not turned over to the estate. This box had been visited on April 18, 1938 by the- deceased, his son, now the executor of his estate, his daughter Gertrude and two others. The testimony shows that at that time there was in the box an envelope containing $4,800 in $100 bills and also other sums amounting to $5,380. The sum of $5,380.00 was then taken out and deposited in a savings account in the name of the deceased. Later, this account was changed to the joint names of the deceased and Ida Schwaan. The envelope containing the $4,800 was returned to the box. Afterwards this sum was taken from the box by the respondent and was not turned over to the estate.

We have not felt it necessary to review the testimony at much length because most of the facts as disclosed by the evidence are not in serious dispute. With regard to the savings account in the sum of $5,380, the brief of the appellant contains the following statement: “We do not contend that the executor is entitled to receive back the sum of $5,380.00 which Mr. Schwaan changed from an individual to a joint savings account. ...

This leaves in dispute only the sum of $4,800 in cash and proceeds of savings- account of $1,800. It must be remembered that the claim of the respondent to the ownership of these two amounts is not made on the theory that they were gifts from her husband but that the sums were at all times her property and not the property of the deceased. Complaint is made that she was allowed to testify as to oral conversations with the deceased. As shown by the evidence, the conversations admitted would only have been of importance as tending to show a gift and, even though improperly admitted, could not have -changed the finding of the-court as to ownership.

The petitioner asserted the conversion of these amounts by the respondent, Ida Schwaan. Upon this, the petitioner had the burden of proving the ownership of these funds. This proof he wholly failed to make. The only testimony as to ownership was that of the-respondent and there was neither testimony directly denying her statements as to ownership nor circumstances shown that would establish ownership in the deceased. She testified that the $4,800 was the proceeds she received from the sale of her home before her marriage. The brief of appellant makes the claim that the savings account containing the $1,800 sum was not a joint account and cites the cases of In re Estate of Jirovec, 285 Ill. App. 499 and Hamilton v. First State Bank of Willow Hill, 254 Ill. App. 55 in support of this claim. The facts in neither of these cases can be applied to the matter before us. No evidence was produced here that could be said to even tend to deny the ownership of these sums as asserted by Ida Schwaan. The joint account in which the $1,800 was on deposit in form showed joint ownership. There is no showing that any complaint was made that the hank wrongfully paid the amount to her.

The witnesses appeared before the judge of the probate court and also before the trial judge in the superior court. Both had opportunity to observe their demeanor upon the witness stand and to consider all the facts and circumstances as brought out by the evidence. The decision of a trial judge upon matters of fact cannot lightly be set aside. The record shows that the judge of the superior court specifically found that the $1,800 account in The First National Bank was held in joint tenancy and also that the $4,800 amount was owned by the respondent, Ida Schwaan. Because of these findings, which we believe were correctly made, we are of the opinion that the order of the superior court dismissing the petition of the executor should be sustained.

The judgment of the court below is therefore affirmed.

Judgment affirmed.

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


author: Mr. Justice Niemeyer

text:
    Helen S. Williams, Appellee, v. Artemus D. Watson, Jr., Appellant.
    Gen. No. 42,419.

      Opinion filed September 27, 1943.
    Opinion modified and rehearing denied October 14, 1943.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellant; William Simon and Edward J.- Fleming, both of Chicago, of counsel.
    Cassels, Potter & Bentley, of Chicago, for appellee; Francis J. Nosek, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

On September 27, 1943 we filed an opinion affirming the judgment appealed from. Defendant presented a petition for rehearing. Without changing the result, we have revised and amplified the opinion and file the following in lieu thereof. The petition for rehearing is denied.

Plaintiff recovered a summary judgment against defendant, her former husband, for $2,135; the amount found to be due under a contract of November 3, 1934, as modified by supplemental agreement dated March 14, 1939 whereby defendant promised to pay plaintiff $100 per month during her lifetime. Defendant appeals.

The original agreement recited the separation of the parties and their desire to adjust property rights, claims of support and maintenance and all questions concerning the custody and support of their two minor children. Under this agreement defendant promised to pay plaintiff $200 per month until her death or remarriage; the care, custody, control and education of the children were given plaintiff except during the vacation period, and defendant agreed to pay plaintiff $50 per month for the support of each child. In carrying out the contract, payments to plaintiff for the support of the children were made only when she had their custody.

By the supplemental agreement the payments to plaintiff were reduced to $100 per month from April 1, 1939, but extended during the balance of plaintiff’s life even though she remarried. All provisions relating to payments to plaintiff for the support of the children were eliminated and a provision inserted that defendant should pay for their support and maintenance throughout each period during which he had the actual custody of the children. In all other respects the terms, provisions and conditions of the original agreement remained in full force and effect.

Plaintiff remarried April 8,1939. Payments of $100 per month were made to her through August 1940, and $65 was paid in September of that year. No further payment having been made, this action was brought and motion for summary judgment made. Defendant also moved for summary judgment, ’Contending that plaintiff could not recover because she had breached the agreement by failure to assume the care, custody, control and education of the children and because the supplemental agreement was invalid for want of consideration.

Plaintiff contends that the agreement in respect to the custody of the children and payment for their maintenance is an undertaking independent of the agreement to pay plaintiff for her use and benefit and, in the alternative, that the agreement did not require her to have the custody of the children; that the supplemental agreement is supported by a valid consideration. . ■

Covenants and undertakings are considered to be dependent or independent according to the intention of the contracting parties and the good sense of the case, and where there are several promises or agreements independent of each other, one party may bring an action against the other for a breach of one of the promises or agreements without averring full performance of the contract on his part, and the breach by the plaintiff of an independent promise or undertaking will not constitute a defense to such action. Prairie Farmer Co. v. Taylor, 69 Ill. 440, 442; Foreman-State Trust & Savings Bank v. Tauber, 348 Ill. 280, 291. The original agreement expressly provides that in the event the plaintiff “shall fail or refuse to provide for the care, custody, control or education of either child, . . . then the obligation herein of the second party (defendant) to contribute to the support and maintenance of such child shall forthwith cease and determine.” By this provision the parties plainly expressed their intent that the promise to pay $200 per month to the plaintiff for her use and benefit should be independent of any undertaking to provide for the care, custody, control and education of the children, for the parties thereby expressly limited the consequences of a failure by the plaintiff to care for and maintain the children to a release of defendant’s obligation to pay her for their support.

When the original agreement was modified by the supplemental agreement, all requirefments for payments to plaintiff for the support of the children were eliminated. This necessarily did away with the provision for discontinuing such payments if plaintiff failed to care and provide for the children. This change did not affect the independent character of the undertakings for the benefit of the plaintiff and those for the benefit of the children. As in the original agreement, these obligations were dealt with separately in the supplemental agreement, with nothing to indicate any dependence of one upon the other. The specified contingencies which terminate the respective obligations are events affecting only the individual beneficiary. As to the plaintiff, her right to payments under the contract as modified terminate upon her death. Various obligations in respect to the children terminate upon the completion of their college education, marriage, becoming self-supporting, or . death. The undertakings in respect to plaintiff are independent of the undertakings relating to the children.

Moreover, the parties placed this construction upon the contracts and construed their provisions as giving a right to the care and custody of the children, as contended for by plaintiff, rather than imposing an obligation with respect to such care, and custody, as contended by the defendant. Under either practical construction by the parties the defense of plaintiff’s alleged breach in failing to care and provide for the children cannot be sustained. The contracts provide that, . . except during the periods herein specified, the party of the first part (plaintiff) shall have the care, custody, control and education of each of the two minor children of the parties hereto at all times during the minority of each child; provided, however, that the party of the second part (defendant) shall have the care, custody, control and education’ of each child throughout each and every school vacation period.” According to statements of their counsel before the trial court in June 1942, the defendant had had the actual custody of the children for five years, and during two years of that time he made monthly payments to plaintiff under the original agreement. Without any change in the custody and support of the children, or any contract provision for such change, he signed the supplemental agreement and made monthly payments thereunder for 17 months. Defendant says in an affidavit in opposition to plaintiff’s motion for summary judgment, that she advised him that she was about to be married and did not want further custody of the children. Defendant probably preferred to have the children with him rather than in the home of plaintiff after her remarriage. Except for the statement in defendant’s answer and affidavit of his conclusion that plaintiff had failed and refused to provide for the children, it does not appear that any request was made that plaintiff assume the care and custody of them.

The supplemental agreement was prepared by defendant’s attorneys to meet the changed situation. Under that agreement defendant agreed to do only what he had been doing for several years — support the children when in his custody, and, what the original agreement required him to do even when they were in plaintiff’s custody. By eliminating all provisions for support of the children when in plaintiff’s custody defendant, was lessening the likelihood of plaintiff wanting them or being able to keep them. After faithfully performing the contract, as modified, for 17 months, defendant ceased payments and now claims that he should no longer pay plaintiff because the supplemental contract left unchanged a fixed obligation oil plaintiff to care and provide for the children (the things she sought to avoid) except when they were in the actual custody of defendant, while eliminating all provisions for the payment of money to her for their support even though, according to defendant, they must be in her care and custody for the nine months of the school year. Surely this was not the intent of the parties. As outlined above, for three and a half years, during all of which time defendant had the actual custody of the children, he voluntarily made regular payments to plaintiff. A practical construction has been given to the contracts by the parties. It is persuasive, if not controlling. Nelson v. John B. Colegrove & Co. State Bank, 354 Ill. 408; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 107. By that construction plaintiff was not required to have the care, custody, control and education of the children. "With this we agree.

Defendant bases his defense of want of consideration upon the fact that he did not sign the supplemental agreement until several months after plaintiff’s remarriage had terminated his obligation under the original contract. The affidavits filed in the proceedings for summary judgments show without dispute that in March of 1939 plaintiff advised defendant of her wish to remarry, and requested a modification of the original agreement. The supplemental agreement was prepared by defendant’s attorneys and forwarded to plaintiff, who submitted it to her attorneys. These attorneys suggested certain changes, including continuance of the payments of the fixed sum of $50 per month for the support of each child while in the custody of plaintiff and the payment of $5,000 in addition to the monthly payments of $100. No changes were made. On April 6 plaintiff’s mother at her request called defendant on the phone and stated that plaintiff planned on being married the following Saturday but would not marry unless defendant would sign the supplemental agreement, and asked defendant if he would sign the agreement if plaintiff signed it, then married and sent it hack to him. Defendant promised to sign it. Plaintiff, being advised of this promise, was married April 8. She signed the agreement before her marriage and delivered it to defendant on April 14. Defendant signed it June 19. These facts show that the act which defendant now relies upon as extinguishing his liability under the original agreement, namely plaintiff’s marriage, was induced by his promise. This was consideration. At the time that promise was made the agreement had been prepared by defendant’s attorneys and was signed by the parties without modification. Defendant not only signed the contract after he knew of plaintiff’s marriage, hut for 17 months made payments thereunder.

Moreover, the contracts were under seal and therefore imported a consideration. In the case of Whyte v. Rogers, 303 Ill. App. 115, the court had under consideration an exclusive sales agreement given a real estate broker by a property owner. In a suit for commissions the owner interposed the defense of want of consideration for- the agreefnent, and its revocation prior to performance. In rejecting this defense the Appellate Court (120, 121) said: “In speaking of a release of a cause of action under seal, our Supreme Court in Woodbury v. United States Casualty Co., 284 Ill. 227 said: ‘It is well settled in this State that in an action at law a release under seal by a person of his cause of action is a complete bar unless its execution is shown to have been obtained by fraud. Such a release carries with it the presumption that it was executed for a valuable consideration, and no evidence can be introduced for the purpose of showing that there was no consideration for the giving of the instrument. To do so would be to permit one to deny his receipt of thp consideration' expressed for the purpose of making void a sealed instrument, which,under the law in this State is not permissible in any case. Before such an instrument can be impeached for fraud relating merely to the consideration and not to its execution, resort must be first had to a court of equity to set it aside for such fraud. (Citing cases.) The same rule does not apply, however, where the suit is on a simple contract or one not under seal. ’ ”

Finding no error in the record, the judgment of the circuit court is affirmed.

Affirmed.

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


text:
    Norma Holcomb Boyd, Appellee, v. Elsie Boesche Mueller and Jack Ruffing, Appellants.
    Gen. No. 42,456.
    Opinion filed September 27, 1943.
    Rehearing denied October 14, 1943.
    Burt A. Crowe, of Chicago, for certain appellant.
    Arthur F. Grueetwald and C. Helmer Johusou, both of Chicago, for certain other appellant.
    Boyal W. Irwih, of Chicago, for «appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff, an occnpant of an automobile driven by defendant Bnffing, recovered a judgment for $8,500 against him and Elsie Boesche Mueller, the driver of another automobile, for personal injuries sustained in a collision between the two cars. Both defendants appealed. The appeal of defendant Mueller has been dismissed on her motion and the case now stands as the appeal of Ruffing alone. He will be referred to as the defendant.

The complaint charges negligence, not wilful and wanton conduct. Plaintiff’s status in the car is a controlling element in the case.

The evidence from which this fact must be determined is without conflict. Plaintiff, defendant, Genevieve Kakacek and Arthur Nichols — the latter being the owner of the automobile in which plaintiff was riding, were young persons who had been friends for some time and frequently went out together; on these occasions Nichols went with plaintiff and defendant with Kakacek; Nichols was employed at the Pal-Waukee airport, northwest of Chicago; the day before the accident the four were together at a show; Nichols complained of being lonesome at the airport and suggested that the other three come out and see him the next day, which was the first day of the spring school vacation; he said the defendant could take his car, charge the gas and oil and pay him back later. The next day the defendant got the car, charged the gas and oil to Nichols at the filling station on the south side of Chicago, picked up the girls and the three went to the airport; on the way 'they stopped to eat sandwiches made by the girls; they spent the afternoon at the airport and when Nichols was through work at 6 o’clock, left him at his boarding house while they went to Des Plaines for dinner; after dinner they picked up Nichols and all took a ride for several hours, when Nichols was again left at his boarding house and the three started home; on the return trip the accident occurred. Plaintiff was riding south on Mannheim Road, defendant Mueller was driving east on Higgins Road. The collision took place at the intersection.

The rule for determining whether or not a passenger in an automobile is a guest without payment for such ride is stated in Connett v. Winget, 374 Ill. 531, 534, where the court said: “In determining whether a person is a guest within the meaning of the ‘Guest Statutes’ in the several States, consideration is given to the person or persons advantaged by the carriage; if it confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if the carriage tends to promote mutual interests of both the person carried and the driver, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest within the meaning of such enactments.” Under this] rule a person being carried on a trip of a social nature the only benefits of which arise from social relations and courtesies, is a guest without payment for the ride, but a person being carried on a business trip the benefits of which are the promotion in a material or business sense of the mutual interest of the person carried and the driver, or a purpose of the driver, is a paying passenger for whose safety the driver must exercisej ordinary care. As said in Duncan v. Hutchinson, 139 Ohio St. 185, where many cases are cited, including Connett v. Winget, supra, nearly all of the. decisions! on this subject may be reconciled when the test is ap- j plied as to whether the trip has a business or socialj aspect.

Plaintiff cites the case of Lerma v. Flores, 16 Cal. App. (2d) 128, 60 P. (2d) 546, where a truck driver had contracted to transport certain goods and asked plaintiff to ride along in order to indicate the route; while plaintiff was riding in the truck for this purpose he was injured. Plaintiff was held to be a passenger instead of a guest, it being plain that the purpose of the trip was the performance of the business contract to transport the goods, and the services rendered in directing the driver as to the route, was payment for the ride sufficient to exclude plaintiff from the operation of the guest statute. Defendant cites the case of Snyder v. Milligan, 52 Ohio App. 185, 3 N. E. (2d) 633, where two groups of three persons each, meeting at a place of amusement, decided to go to a country club for the purpose of dancing; plaintiff was riding in defendant’s car at defendant’s invitation, one of the purposes being for plaintiff to show defendant the location of the club, but the chief purpose of the trip being to reach the club house where all were to dance. The court said: “But, where there was no business relationship between them, either of present or prospective contract, and there was no benefit, mutual or otherwise, which could be regarded as a consideration, and the only relationship was a social one of hospitality or reciprocal hospitality, the rule, by the weight of authority and reason, is that, as a matter of law, the person being transported was a.guest within the meaning of what is commonly known as ‘guest statutes.’ ” There is no conflict in principle between these cases. The first was essentially a business transaction, the second purely a social matter, and, recognizing these distinctions, each case was decided according to the rule stated by our Supreme Court.

Plaintiff, insisting that the trip on which she was injured was a trip having a business aspect, says that because of lonesomeness Nichols, for his own pleasure, invited his three friends to visit him at the airport and that the trip was primarily for the purpose of the owner of the car. In taking this position plaintiff ignores the fact that the only benefit conferred on Nichols was incident to the companionship of his friends and that the entire trip was devoted to social activities — the visit with Nichols at the Pal-Waukee airport, dinner at Des Plaines, the social ride in the evening, including a visit to another airport, without the slightest evidence of any business or material personal interest being suggested or promoted. If a trip is social its character is not transformed into a trip with a business aspect because the owner suggests it or ex'tends the invitation. In Gaboury v. Tisdell, 261 Mass. 147, plaintiffs were sisters of defendant’s wife and lived in defendant’s house; the accident occurred on a trip from Worcester, Mass., to Central Falls, E. I.; plaintiffs, defendant and his wife and son were making the trip; plaintiffs claim that they were not guests because when invited by defendant one of them said she did not care to ride on Sunday because there was too much traffic, and the defendant said: “Do come for us . . . it will be more pleasure for us . . . Everything will be all right. Come along.” The court said: “The relation in which the plaintiffs stood to the defendant was not changed by the conversation. The desire to have the plaintiffs accompany the defendant, and his statement that they would all have a better time if the plaintiffs joined in the trip and that everything would be all right, did not show that they accompanied the defendant for his benefit. ... In the case at bar there was no pecuniary gain'to the defendant in carrying the plaintiffs to Central Falls. The trip was to be taken for the mutual pleasure of all. The plaintiffs were the defendant’s guests; they did not cease to be such because their presence was pleasing to the defendant and- they were solicited to accompany him and his family. . . .” In McCornack v. Pickerell, 225 Iowa 1076, plaintiff was invited by defendant to go with him to Illinois to be a witness at his wedding; she accepted, as she said, upon condition that she take a lunch along and pay one third of the cost of the gas and oil to help pay the expenses; she also testified that defendant consented. The court held that a motion for a directed verdict should have been sustained, and said: “She further testifies that she was requested to go for the reason that the defendant and Mrs. Donner were planning to be married and that the defendant wanted the plaintiff along. This does not seem sufficient, under the holdings of this court above referred to and the general* rules laid down by other courts, to constitute the plaintiff a passenger for hire, hut rather emphasizes the fact that she was a guest. There was no fixed sum of payment to be made, but a voluntary offer on the part of the plaintiff to pay for part of the gasoline and oil. Nor does it appear that she was to render any service, unless the fact that she was to act as a witness at the contemplated marriage might be so construed. She went by invitation, and in our opinion, following the rule which we believe to be the true one, she was a guest . . . .”

In a further effort to keep outside the “guest” statute plaintiff insists that she could not be the guest of Nichols because Nichols, not being in the car at the time of the accident, the elements of companionship and enjoyment were lacking. This places an extremely narrow construction upon the relation of host and guest. If tenable, a host inviting guests to his home would be exempt from all liability except for wilful and wanton conduct for injuries sustained while the guests were being conveyed in his automobile from their homes, or a railroad station to his home, if he were present in the car, but liable for failure to exercise ordinary care if he were not in the car. The host’s presence in or absence from the car does not affect the character of a trip which is purely social and made for the purpose of enabling the guest to visit the home of the host. The sending of the car is merely a social courtesy ordinarily extended to guests, and entirely devoid of any business or contractual aspect. So in the case at bar, the purpose of the outing was the visit with Nichols at the airport, and the transportation of his friends, including plaintiff, to and from their homes was an essential part of the outing and for that reason Nichols gave permission to use his car. . It would be illogical to separate the outing into the times when Nichols was present in the car and the times when he was not, for the purpose of determining the nature of the trip and the status of plaintiff in the car. In the case of Flynn v. Lewis, 231 Mass. 550, in an action against the owner of an automobile for injuries sustained on a trip to Boston made by his daughter and her friend, the friend was held to be a guest of the father and her right to recover limited to wilful and wanton conduct.

Applying the rule announced by our Supreme Court and the holdings of the cases above referred to, which are in harmony with the great weight of authority, we hold as a matter of law that at the time of the accident plaintiff was a guest. So far as the liability of defendant is concerned it is immaterial whether plaintiff was a guest of Nichols or of the defendant. Buffing was the driver of the car, either for himself, or, as agent of Nichols, as contended by plaintiff, and therefore exempt from all liability except for wilful and wanton conduct. Ill. Rev. Stat. 1941, ch. 95%, par. 58a [Jones Ill. Stats. Ann. 85.064(1)]. We hold that plaintiff was a guest of defendant. The resume of the evidence heretofore given shows that Nichols gave defendant the use of his car and of his credit at the filling station; defendant promised to pay Nichols for the gas and oil purchased and was ultimately liable for same; he did pay for the dinner at Des Plaines. The evidence does not show any control by Nichols over the operation of the car or the route to be taken. Defendant was not the agent of Nichols. Hartley v. Miller, 165 Mich. 115.

Since plaintiff was a guest of defendant it becomes unnecessary to consider other points raised in the briefs filed. Plaintiff having charged negligence only, the motion of defendant for judgment notwithstanding the verdict should have been allowed and judgment entered for defendant. The judgment of the superior court is reversed and the cause remanded with directions to enter judgment for defendant.

Beversed and remanded with directions.

O’Cohnor, P. J., and Matchett, J., concur.