text:
    Walter E. Petersen, Appellee, v. City of Gibson, Appellant.
    Gen. No. 9,398.

      Heard in this court at the October term, 1943.
    Opinion filed February 29, 1944.
    Rehearing denied April 22, 1944.
    Middleton & Middleton, of Gibson City, for appellant.
    Lindley, Pacey & Pacey, of Gibson City, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

Plaintiff brought suit against the defendant city to recover the value of personal property destroyed on July 2, 1941, by a fire alleged to have been caused by the negligence of the defendant. A trial before a jury resulted in a verdict and judgment for plaintiff for $2,500. Defendant appeals from such judgment.

The complaint as finally amended contained three counts. Count one charged that at all times in question plaintiff was in the exercise of due care for the safety of his personal property; that on July 2, 1941, he was in possession of a building located on the east portion of Block 4 in a certain subdivision in the City of Gibson,'in which he had stored certain farm equipment ; that on June 30, 1941, a very heavy wind struck the defendant city and as a result thereof a great many trees were blown down and obstructed the free flow of traffic over the defendant’s streets; that the defendant voluntarily assumed the removal of broken limbs and other inflammable material from its streets; that in so doing such limbs and broken trees were hauled by employees of defendant to the east portion of said Block 4 “just north” of such frame building and were there burned; that the defendant negligently, carelessly and wrongfully set fire to such material and negligently, carelessly and wrongfully failed to watch and control said fire, and that as a result thereof the property in the building was burned and destroyed.

Counts two and three varied from count one only by charging that the fire occurred from a deposit of such brush upon live embers and burning material and that defendant negligently failed to watch and control the fire which resulted therefrom.

Defendant filed its motion to strike the complaint as amended and each count thereof on the ground that such complaint failed to state a cause of action, which motion the trial court denied. The defendant urges that this was error.

The gist of defendant’s motion was that the essential averments in the complaint were too general and indefinite on which to base a charge of negligence.

The first question presented is whether the complaint as amended is sufficient to sustain the judgment. In the consideration of such question, where an answer has been filed after the denial of a motion to strike, the complaint will be liberally construed to sustain the judgment. (Roumbos v. City of Chicago, 332 Ill. 70.)

The inquiry at this time is not whether the complaint complied with the technical rules of pleading, but whether by reasonably intelligible allegations, it advised the defendant of the casé to be made against it. (Miller v. S. S. Kresge Co., 306 Ill. 104.) It is our opinion that the allegations of the complaint were sufficiently definite to inform the defendant that the plaintiff’s claim was based on the act of the defendant’s employees in negligently burning brush in close proximity to the plaintiff’s property and negligently failing to watch or control such fire. Whether the city, in fact, owed any legal duty to the plaintiff in the act of burning such brush was a legal question to be determined by the court, and it was not necessary for the pleader specifically to allege that in the commission of such acts the city was engaged in a private corporate function, as contrasted to a governmental function. (Roumbos v. City of Chicago, supra.) Whatever its defects may have been we think this complaint contained sufficient facts to state a cause of action against the defendant. A complaint meeting this requirement is sufficient to withstand a motion to dismiss followed by an answer after a verdict and judgment have been rendered. (Miller v. S. S. Kresge Co., supra.)

After the amended complaint was filed, the court denied defendant’s motion that plaintiff be required to file a bill of particulars. In such motion defendant sought to secure such information as, (1) the specific location of plaintiff’s property on Block 4; (2) the particular description of each article of plaintiff’s property as enumerated in the complaint as to age, contents, material, value, model and serial numbers; (3) the means by which the fire was communicated to the frame building where plaintiff had his personal propérty stored.

The amended complaint described each item of personal property which the plaintiff claimed to have lost in sufficient detail to advise the defendant as to the nature and type of article included in plaintiff’s claim, and charged that the defendant burned inflammable material just north of the plaintiff’s building. While the term “just north” is not definite, it sufficiently charged that the building and the fire were in close proximity to one another. We do not consider that it was necessary for the plaintiff to allege specifically the exact location of the building or the particular means by which the fire was communicated from the brush pile to the building. It is common knowledge that a fire can be communicated either by means of direct contact with flame or through sparks generated from flame, and we believe it would be imposing an unreasonable burden on the plaintiff to require him to point out the particular means by which tbe fire was transferred.

In our opinion there was no occasion for a bill of particulars and the trial court in the exercise of its discretion properly refused to require a bill of particulars.

There was practically no conflict in the evidence introduced at the trial except on the question of the amount of the plaintiff’s damages. It appeared from this evidence that the building in question was a frame shed approximately 24x44 feet in size, located at the southeast corner of the block. At the time of the fire the building was locked and no one had been on the premises between 5 a. m. and the time of the fire, which occurred at approximately 3 p. m. There was no stove or other means of heat within the building.

Defendant’s employees hauled truck loads of brush to this block on July 1, and this brush was there burned in a brush pile, the south edge of which was about 30 feet from the north end of the building. The hauling of this brush continued on July 2, and there was some question whether the fire in question started on that date or whether there were sufficient live embers from the previous day’s fire to ignite the brush. A truck load was dumped onto the brush pile about 3 p. m. of July 2 by two of defendant’s employees. One of these employees, who was also street commissioner, testified that he “imagined” that the brush pile was around 30 feet from the north end of plaintiff’s building and that the fire blazed 8 to 10 feet high. He further testified, “we did not leave anyone to watch the fire that day and I do not know of anyone there watching it.” Another witness testified that the height of the flame was from 10 to 15 feet high. The wind on this day was blowing from the northeast and the smoke was so dense in the vicinity of the fire that it was difficult to drive along the street. The truck which dumped the' load at 3 o’clock returned in about 15 minutes with another load, and at that time it was discovered that the building was on fire.

There was evidence to the effect that the defendant had used this property for burning brush for some years prior to the fire, and that during that time plaintiff was a member of the city council and of the street and alley committee. There was no evidence, however, that the plaintiff ever authorized any of the city employees to burn brush in this particular location, and one of the defendant’s witnesses who was a former street superintendent testified that he was careful not to burn brush on the lot when the wind was towards the frame building where plaintiff’s property was stored, and that if the wind changed he ceased burning if the fire was of any size.

We have reviewed all of the evidence and we think that it was clearly sufficient to justify the jury in finding that the defendant was negligent and in assessing the plaintiff’s damages at the sum of $2,500.

The question remains whether the defendant can be held liable for the negligence of its employees in burning debris collected from its streets in the manner disclosed by the record.

It is defendant’s contention that in disposing of the brush which had fallen onto its streets it was acting in a political or governmental capacity and therefore cannot be held liable for the negligence of its employees. Defendant recognizes that if the acts were committed while it was engaged in a corporate or proprietary function that the doctrine of respondeat superior would be applicable as in the ordinary case of negligence committed by the employees of a private corporation.

In Bedtke v. City of Chicago, 240 Ill. App. 493, plaintiff sued the city of Chicago for negligence in the use of a portable incinerator in an alley back of plaintiff’s premises which caused the destruction by fire of certain personal property belonging to the plaintiff. The court there held in affirming a judgment for plaintiff, that in cleaning its streets and alleys the city was performing a corporate and ministerial and not a governmental function.

In Roumbos v. City of Chicago, 332 Ill. 70, a trial court judgment was affirmed in which the city of Chicago was held liable for the act of a street sweeper in leaving unattended a small burning pile of trash next to a curb, the flame from which was communicated to the dress of a four year old girl thereby causing fatal burns.

Defendant admits that “ordinarily cleaning of city streets and burning brush is a ministerial function as distinguished from a governmental function, and that this is true where the cleaning and burning is done for a local city purpose.” Defendant then goes on to argue that the general rule does not apply to this case because plaintiff admitted in his pleadings that the cleaning of the streets and the hauling of brush was for “the general public good.” In its answer to the complaint, defendant alleged that the city in collecting and removing the debris was “acting under a power conferred upon it by law and the said acts were for the public good and appertained to the defendant corporation in its political capacity.” In the reply to this answer plaintiff admitted that the defendant was acting under a power conferred upon it by law, and that the said acts were “for the public good,” but denied “that said acts appertained to'the defendant corporation in its political capacity” and averred that the defendant in performing said duties was in the exercise of the municipality’s private corporate or ministerial functions, as contra-distinguished from its governmental functions or police power.

Plaintiff in his reply did not admit that the acts in question were for the “general public good.” The public derives some benefit from almost every act performed by city employees in the conduct of the business of the city, but this incidental benefit is not sufficient to make the act a governmental function. (Johnston v. City of Chicago, 258 Ill. 494.) Plaintiff’s reply even with its admissions, clearly raised the issue that the defendant’s acts were corporate and not governmental.

Defendant makes the further contention that, because a portion of the debris was collected from a State bond highway running through the city, the city represented the sovereignty of the State and was therefore exercising a governmental function. The evidence showed that the debris was collected generally from the streets within the city which collection would primarily benefit the residents of the city. The fact that the general public as users of the State highway might also derive some benefit from the cleaning of this one street, is not. sufficient in our opinion to change the entire character of the transaction.

Defendant complains of the giving and refusal of certain instructions. Defendant has not set forth the language or substance of any of such instructions in its brief. In this situation we will not search the record to find whether any error has been committed in the giving or refusal of instructions. (See Hirshman v. National Mineral Co., 311 Ill. App. 169; Jones v. Keilbach, 309 Ill. App. 233.) Other errors have been assigned but we find none of them deserving of comment.

It is our opinion that the trial court properly denied defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, and that the judgment of such court should be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Riess

license: Public Domain

text:
    Leon Cazalet et al., Plaintiffs, v. Kenneth Cazalet et al., Defendants. In re Intervening Petition of W. H. Hickman, Appellant.
    Gen. No. 9,421.
    Heard in this-court at the October term, 1943.
    Opinion filed February 29, 1944.
    Rehearing denied April 22, 1944.
    W. H. Hickman, pro se, and Hogan & Coale, of Taylorville, for appellant.
    Hershey & Bliss, of Taylorville, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.

Appellant, W. H. Hickman, a practicing attorney-at-law, filed an intervening petition in a certain partition proceeding pending in the circuit court of Christian county for the purpose of enforcing an alleged attorney’s lien under the provisions of sec. 14, ch. 13, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 9.13] against the interest of one of the plaintiffs, Leon Cazalet, in and to the real estate involved in said proceeding. The claim for lien was predicated upon a certain written contract previously signed by one Hable • K. Spaulding, wherein the petitioner Hickman was engaged to represent her upon a contingent fee basis as counsel of record in the prosecution of a certain action at law in tort for personal injuries against said Leon Cazalet, then a minor, in the circuit court of Macon county, Illinois, resulting in recovery of a judgment on December 13, 1938 for $22,500 and costs of suit in favor of plaintiff and against said minor defendant. Certified copies of this judgment were filed in the offices of the circuit clerks of Christian and Shelby counties and executions thereon were then issued and later returned nulla bona .in each county. Subsequently, on July 15, 1942, Clyde Cazalet, father of appellee, departed this life and appellee Leon J. Cazalet became the owner of an undivided one-fifth interest in and to the real estate later involved in the above partition proceeding, wherein the intervening petition of appellant Hickman was filed.

Defendant filed a verified answer denying that such lien had been established or was in force and denying that legal notice and claim for lien required by the above statute had been given to, and served upon, or received by the defendant. Hearing was had by the court upon said intervening petition and at the close of the intervenor ’s evidence, upon motion of the appellee, the petition was dismissed. From that order of dismissal, the pending appeal was taken by the petitioner to this court.

Appellant has assigned error on the part of the trial • court (a) in entering said order of dismissal of his intervening petition, and (b) in not granting the relief prayed for in the petition.

The applicable provisions of the above statute concerning attorney’s liens as enacted in 1909 and amended in 1927, provide: “That attorneys at law shall have a lien upon all claims, demands and causes of action, . . . for the amount of any fee which

may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for reasonable fee, for the services of such attorneys rendered or to be, rendered for their clients.

. . . Provided, however, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien, and stating therein the interest they •have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, . . . from and after the time of service of the aforesaid notice.” The application of the above section has been construed by the courts of review of this State in a number of cases involving-varying facts and conditions.

It has been uniformly held that such lien did not exist at common law but is purely a creature of the statute which must be strictly followed in order to establish the lien and right of action against the defendant for the enforcement thereof. Mayer v. Yellow Cab Co., 247 Ill. App. 42; Haj v. American Bottle Co., 261 Ill. 362, 103 N. E. 1000; Drey fuss v. Freud, 209 Ill. App. 345; Lust v. Atchison, T. & S. F. Ry. Co., 267 Ill. App. 60.

It has been further held and is not disputed herein that such lien attaches from and after the time of legal service of said notice provided for and required by the provisions of the above statute. Section 14, supra; Filipiak v. Zintak, 264 Ill. App. 392; Hall v. Metropolitan Life Ins. Co., 298 Ill. App. 83, 18 N. E. (2d) 383.

The notice of such claim for lien under the provisions of the above statute, to become effective, must be a personal notice upon the defendant or defendants, or, since the amendment of 1927 to said act, such, service of notice “may be made by registered mail,” upon the party against whom their clients may have such suits, claims or causes of action. Section 14 of said statute, supra; Haj v. American Bottle Co., supra; Hall v. Metropolitan Life Ins. Co., supra. Either method of service is therefore valid and sufficient under the present provisions of the attorney’s lien statute. It remains for us to determine' from the record what notice and claim for lien, if any, was actually given to the defendant by the intervening petitioner and whether or not such notice complied with applicable statutory requirements.

Appellant contends that notice to an attorney of record is notice to his client; that the knowledge of the attorney is knowledge of his client and cites in support thereof certain cases involving notices given wherein such causes were lis pendens. However, none of the cases so cited involve the question of an attorney’s lien or a construction of the provisions of the statute in relation thereto. On the contrary, it has been specifically held in the construction of said attorney’s lien act, supra, that notice to the attorney is not sufficient nor binding upon the defendant, but proof of actual notice to the defendant is necessary. Reynolds v. Alton, G. & St. L. Traction Co., 211 Ill. App. 158; Molthrop v. New York, C. & St. L. R. Co., 245 Ill. App. 8; Mayer v. Yellow Cab Co., 247 Ill. App. 42; Jackson v. Toledo, St. L. & W. R. Co., 186 Ill. App. 531.

It seems that almost every conceivable manner of service was attempted by the petitioner except one of the two methods expressly required by the statute, namely: either service upon the defendant in writing or by registered letter to the defendant. The latter method was once attempted by the petitioner in a registered letter mailed to defendant at Assumption, Illinois, on July 12, 1938 but never delivered to the defendant and the letter and unsigned receipt card were returned to the sender unopened, hence was not received by nor served upon the defendant in a manner that met the requirements of the statute. (Abst. 18) It was stated and conceded by the intervenor while testifying in his own behalf at the hearing upon his petition as to said letter that “The registered letter was mailed July 12th. There was no other registered letter sent to Leon Cazalet or anyone else except one sent to Assumption.” As to the remaining letters which were offered as exhibits by the petitioner and objected to by the defendant, all had been mailed to the defendant at Assumption, Illinois, or care of the Federal Land Bank at St. Louis, Missouri by the petitioner or the original plaintiff by general delivery and unregistered. None of them are shown to have been actually received by or delivered to the defendant although it was testified that some of them were not returned to the sender whose return address appeared on the envelope. The letter mailed in care of the Federal Land Bank in St. Louis was sent general delivery by first-class mail but was not registered. Petitioner testified further that so far as he knew, “Mr. Cazalet was not at the trial; that he wasn’t at the counsel table.” That he was represented by Attorney Wilson, appointed as guardian ad litem by the court.

Copies of the notice concerning the above contract of employment were also filed with the circuit clerks of the three counties in which the original or transcript of judgment were filed, but this proceeding constituted no legal notice to the defendant which met the requirements of the statute, nor was it shown that actual notice thereof was brought to the attention of said defendant. The personal delivery of a copy of said contract to Attorney Wilson who had been appointed by the court and who represented the defendant as guardian ad litem at the trial of said cause, did not constitute personal service upon the absent defendant nor meet the statutory requirements any more than the service of such notice would have been sufficient if served upon any other attorney of record for a defendant. (Citations, supra.) It also appears that one unregistered letter was mailed to Clyde Cazalet at Assumption, Illinois, who was the father of the defendant, a minor at the time of the suit. This did not meet the requirements of the statute. We have carefully searched and read the original record of the testimony in this case to ascertain whether personal service or knowledge of such agreement was at any time made upon or shown to have been received by the defendant, as would be necessary to constitute a prima facie case, but find the record barren of such proof. Since the above statutory requirements must be strictly complied with in order to establish" the statutory lien in question, proper notice of the contract and of the claim for lien must be shown to have been given to the defendant by the claimant.

It is further pointed out by counsel for defendant that attempted notices given by the claimant are defective in that they contain no reference whatever to any claim for lien but recite only the fact that a contract was entered into in substance as set forth in said purported notice, whereas the statute cited, supra, provides ‘ ‘ such attorney shall serve notice in writing, . . . claiming such lien, and stating therein the in-

terest they have in such suits.” The attorney’s lien • act provides that the attorney shall have a lien.“For the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for reasonable fee, for the services such attorney rendered or to be rendered.” While the amount of attorney’s fee appears to have been agreed upon, the purported notice was at substantial variance with the contract as to the provisions of the latter in that the contract itself provided for a 40 per cent contingent fee and in the event of an appeal from the judgment of the circuit court for ■a 50 per cent contingent fee. Some of the letters or notices referring to the contract speak of a contract for an approximate 35 per cent attorney’s fee, while other letters speak of a one-third contingent fee. None of the letters signed by claimant Hickman made any reference whatever to a lien or a claim for lien or to the statute in relation thereto. Only a notice signed by Mrs. Spaulding but not by claimant in an • unregistered letter made any reference to a lien. The judgment appears to have been released of record by Mrs. Spaulding on August 5, 1942. Claimant testified (rec. p. 133, abst. 18 and 19) that there was no other registered letter than that of July 12 (Ex. 2) which was returned unopened and the card to be signed as a return card was also returned with the letter and (rec. p. 134) claimant further says he doesn’t know if any of the letters were received by the defendant, that he never saw him; as far as he knew he was not present at the trial, that the sheriff told him he had been in jail.

The purported notice contains neither a notice of the amount of fee contracted for, which is one of the express provisions of the statute, nor of any claim for lien, as provided in and required by said section. Defendant’s verified answer denied receipt of any of the alleged notices. However, we need not pass directly upon the question of the sufficiency of the form and contents of the purported notice or the question of material variance between the alleged notice and contract offered; since, from a careful examination and scrutiny of the entire record, including the oral testimony of the claimant and all of the exhibits, we are unable to find that prima facie proof of legal or actual notice to the defendant appears in the record; either in compliance with the terms of section 14 of chapter 13 concerning claim for attorney’s lien or of the provisions of the Civil Practice Act in any of its applicable provisions in relation to service of a notice or claim for lien.

We are obliged to hold under the facts and circumstances, after a careful consideration of the evidence and proofs given and offered by the intervenor, that prima facie proof of statutory service has not been shown and that therefore, the trial court did not err in holding that the statutory lien had not been proven and in allowing defendant’s motion and, dismissing the petition. The order of the circuit court of Christian county herein appealed from will therefore be affirmed.

Affirmed.


author: Mr. Justice Matchett

text:
    Woodmen of World Life Insurance Society and Ben Hur Life Association, Appellees, v. County of Cook and Clayton F. Smith et al., Appellants.
    Gen. No. 42,610.

      Heard in the first division of this court for the first district at the February term, 1944.
    Opinion filed March 27, 1944.
    Thomas J. Courtney, State’s Attorney, for appellants ; Marshall V. Kearney, Jacob Shamberg and William J. Tuohy, Assistant State’s Attorneys, of counsel.
    William E. Mooney, of Chicago, for certain appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal was taken by defendants from the circuit to the Supreme Court and there transferred to this court. Woodmen of World Life Ins. Soc. v. County of Cooh, 381 Ill. 558. Plaintiffs are owners by assignment from the City of Chicago of certain judgments against Cook County, amounting in the aggregate to more than $3,000,000. One of these judgments was affirmed by the Supreme Court in City of Chicago v. County of Cooh, 370 Ill. 301. The other judgments are based on similar claims. The validity of the judgments is not questioned. Some interest has been paid but the County claims its financial condition has been such as to preclude appropriations to pay these judgments and interest in full. Pending this appeal negotiations were had between the parties as to issuing bonds to pay the judgments, and upon their stipulation our decision has been delayed.

October 29, 1941, plaintiff owners sued the County and its Board of Commissioners, collectively and individually, to obtain a writ of mandamus to compel defendants to levy for the year 1942 taxes sufficient to pay these judgments and so certify to the County Clerk. Defendants answered, admitting their duty to provide for the payment of the judgments in so far as they were able, but denying plaintiffs’ right to a mandamus under the law on account of the financial condition of the County, etc. Plaintiffs then amended their petition and asked in the alternative that defendants be required to issue bonds payable in equal annual instalments and make provision for the levy of an annual tax to pay the same.

On January 29,1942, the court on motion of the petitioners entered an order for a mandamus, as prayed finding the issues in their favor. On February 18, 1942, the respondents filed notice of appeal from certain directions contained in the final decree. The notice recites, however, that it is not intended to take any appeal from any order directing respondents to do every act and thing imposed upon them by law, as such officers, for the levy, collection and payment of taxes sufficient to pay the judgments, etc., nor from such part of the order as directs them to cause to be certified to the County Clerk of Cook County, in manner and form as provided by statute, the budget and appropriation ordinance and annual interest therein provided to be paid.

Paragraph 2 of the judgment provides that the defendants shall levy and collect in its annual tax levy ordinance and budget for the'fiscal year 1942 “a sufficient tax outside of the general corporate levy of the said County, to pay the sum of $313,691.37 on the principal of the aforesaid judgments that being one-tenth of the total principal due and unpaid thereon, provided that in so doing the total tax levy for all purposes in the said appropriation ordinance and budget for the fiscal year 1942 shall not exceed 75 cents on the $100 valuation, and if by levying the said sum the total tax levy shall exceed 75 cents on the $100 valuation then the levy for the said judgments shall be abated in the amount of such excess.”

In paragraph 3 the judgment provides that defendants shall “for the purpose of paying the remaining nine-tenths of the said judgments, within sixty days after this order is entered, issue the County’s bonds, in regular form, which bonds shall be in sum not to exceed the remainder of the principal sum of the said judgments, and which shall be payable in equal annual installments, which bonds, if not delivered to and accepted by the petitioners and intervening petitioner in lieu of and in satisfaction of their judgments herein, shall be sold by said County for the purpose of procuring funds sufficient to discharge the said judgments in full . . . and for the levy, collection and payment of a tax sufficient to pay the interest thereon and installments of principal, provided that in so doing the total tax levy for all purposes in the said appropriation ordinance and budget for the fiscal year 1942 shall not exceed 75 cents on the $100 valuation, and if by levying the said sum the total tax levy shall exceed 75 cents on the $100 valuation then the levy for the said bonds and interest shall be abated in the amount of such excess.”

The defendants contend this part of the order is erroneous and that the County Board is without authority under the law to comply with it. Defendants say that they have no right in the budget and appropriation for the year 1942 to levy a tax outside the general corporate levy for the purposes directed by this order. We are compelled to hold under the authorities that the judgment in this respect is erroneous.

The County Board of any county in Illinois, in the absence of statutory or legislative authority, is without authority to levy taxes. People v. Ho err, 294 Ill. 338; People v. New York & St. L. R. Co., 371 Ill. 522.

Section 8 of Article 9 of the Constitution of the State provides that county authorities shall not levy taxes to exceed 75 cents on the $100 valuation. The powers of the County Board in this respect are strictly construed against the Board and liberally in favor of the taxpayer. This provision of the Constitution is a limitation and not an authorization. When this suit was begun the power and authority of the Board of County Commissioners with respect to taxation was controlled by section 25 of chapter 34 of the Ill. Rev. Stat. [Jones Ill. Stats. Ann. 33.025], The 5th paragraph of section 25 in substance provided that the County Board should have power to levy and collect for the year 1942 “for county purposes” 32 cents on each $100 valuation of property, or at a rate which, when extended, would produce an amount not to exceed $9,000,000, whichever might be the greater. This section of the statute expressly exempts from its applicability certain levies, such-as those for the relief of the blind, for widows’ pensions and quite a number of similar purposes, but significantly fails to include among those exempted therefrom the payment of judgments obtained against the County. Moreover, the exceptions named in section 25 “are not intended to authorize levies for the purposes mentioned in them. The authority for making levies for those purposes is found in other acts.” People v. Baltimore & O. S. W. R. Co., 336 Ill. 318, 322. Indeed, we think the levy of a tax for the payment of judgments against.a county is expressly held not only to be for a county purpose but also a tax that must be included in the tax fixed by the legislature which the County Board is authorized to levy for county purposes, unless authority for the additional tax is given by vote of the People. People v. Baltimore & O. S. W. R. Co., 350 Ill. 217. This direction to the County Board, therefore, to levy a tax outside that directed by the statute for the payment of these judgments is clearly erroneous and requires a reversal of the judgment.

In this connection the petitioners draw a distinction between taxes for obligations for county purposes and taxes for obligations for governmental functions imposed on the county for the benefit of the State at large. They say that their judgments were obtained for default in payment of an obligation of the latter kind, and are therefore, entitled to share in the taxes imposed by the Board of County Commissioners for the ordinary expenses of running the County. Their distinction is based upon the claim that the obligations upon which the judgments in question are based were imposed for public purposes in connection with the necessary expenses of the municipal court, and that these judgments are therefore of a kind which would seem to entitle them to special consideration. We are not able to agree with this contention because a county is a public corporation which exists only for public purposes connected with the administration of the State government. Wetherell v. Devine, 116 Ill. 631, 639, 640. Hence, unlike a city, it has no private or corporate functions as distinguished from governmental functions. People v. Gaylord Bldg. Corp., 369 Ill. 371, 374. The petitioners were not required to put the obligations due to them into the form of judgments against the County unless they saw fit so to do. Having decided to do so, and having procured judgments which the Supreme Court of the State has held to be valid, according to the usual rule obtaining in such eases their respective claims were in each case merged into the respective judgments and the rule stated in People v. Baltimore & O. S. W. B. Co., 350 Ill. 217, heretofore cited, is applicable. We are agreed there is no valid distinction between these judgments and any others that may have been obtained against the County.

The petitioners suggest that the court erred in limiting the mandamus judgment to a levy outside the general corporate levy for the County and have filed and argue alleged cross-errors. They now ask the court to amend the mandamus order so as to make it “more comprehensive” and say 1 ‘that the County should have been ordered to include the appropriation for these judgments out of its general corporate revenues, including all revenues from fee offices, so that no other county obligations should have precedence over it.”

Section 27 of the Counties Act (Ill. Rev. Stat., ch. 34 [Jones Ill. Stats. Ann. 33.027]) provides in substance that whenever the County Board deems it necessary to assess taxes, the aggregate of which exceed the taxes authorized to be levied, as provided for in section 25 of the act, it may, by an order of record, set forth the "purpose and the number of years the excess will be required and submit the question of assessing the additional rate to the voters of the County. These statutes have thus established definite legal limits. They have also provided a legal way in which these limits may be exceeded. Apparently it is not desired to take the opinion of the voters on the question.

Defendants allege in their answer that all the revenue of the County arising from taxes levied for general county purposes, within the limitations imposed by section 25 of the County Act, and all receipts from fee offices and all miscellaneous sources for the fiscal year will not provide it with sufficient funds, after payment of current and necessary expenses and liabilities, that is, ordinary running expenses of the county and for the operation of and payment for the county welfare, hospital and poor* farm and other institutions, to pay more than the interest on the judgments involved herein from October 1,1940, to December 1,1941. The court by its order has in effect found that these allegations were sustained, and has further found “that to pay on the principal of the said judgments, resort must be had to the taxing powers of the county, outside of the general and corporate tax levy. ’ ’ The evidence in the record justifies these findings. In this state of the county finances, the additional tax for the payment of these judgments could not be levied within the limitations imposed by section 25 without interfering with the current and necessary functions of the County. The court, therefore, was justified in not directing that the tax for the payment on account of the principal of the judgments be included within the tax for general county purposes as limited by section 25. Town of Sparland v. Barnes, 98 Ill. 595; Board of Sup’rs, of Coles County v. People ex rel. Ashbrooh, 226 Ill. 576; 34 Am. Jur., Mandamus, § 176, p. 950.

Neither, under the law, can we approve of the provision which directs the issue of bonds by the County in satisfaction of these obligations.

The petitioners have submitted a memorandum suggesting that they are entitled to the benefit of the Act of July 28, 1943 (Ill. Rev. Stat., ch. 34, sec. 103w [Jones Ill. Stats. Ann. 33.154(34)]) and that the directions of the mandamus decree as to the issue of bonds for these obligations should be sustained thereunder. The new section provides for the issuance of bonds and the levy of taxes without reference to the limitations of section 25 and, without vote of the people, for the payment of certain judgments and other obligations of the .County, including the judgments held by plaintiffs. Under it the County Board has discretion as to the maturity of the bonds, not exceeding 20 years, and as to the interest rate, not exceeding 5 per cent. The section does not warrant affirmance of the judgment appealed from.

Petitioners’ cross-errors will be dismissed. The order will be affirmed in part and reversed in part.

Affirmed in pari; reversed in part.

O’Connor, P. J., and Niemey'er, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    J. Meyers, Appellee, v. Mollie Dorfman et al. Sam Nerenberg, Appellant, v. Mollie Dorfman et al.
    Gen. No. 42,921.
    Heard in the first division of this court for the first district at the December term, 1943.
    Opinion filed April 3, 1944.
    Israel Dordek, of Chicago, for appellant.
    David M. Jacobson, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

December 2, 1940, J. Meyers filed his complaint in . chancery to foreclose the lien of a trust deed given to secure an indebtedness of $11,000, evidenced by a mortgage note on which $8,250 principal and interest were due and unpaid. He made Mollie Dorfman, one of the mortgagors, and others including Sam Nerenberg, who it was alleged was the owner of a second mortgage on the premises, defendants.. Nerenberg filed a cross-complaint in which he alleged that the indebtedness, secured by the trust deed, which Meyers sought to have foreclosed, was paid by the mortgagor, Mollie Dorfman while she held title to the property and therefore it ceased to be a lien on the premises. He prayed foreclosure and that he be given a first lien on the premises and that if Meyers was entitled to any claim or lien it should be decreed to be subordinate and inferior to the lien of his trust deed.

After the issues were made up the cause was referred to a master in chancery to take the evidence and make up his report with recqmmendations.

Prior to the commencement of the hearing before the master the deposition of plaintiff Meyers was taken January 31,1941, before a notary public and the deposition of the defendant Mollie Dorfman was likewise taken before a notary public July 9, 1941. Bach of these witnesses was called by the defendant and cross-complainant Sam Nerenberg as adverse witnesses. Their testimony was written up and, by agreement, .was submitted to the master for his consideration in connection with the other evidence heard by him. The master made up Ms report wMch was filed July 22, 1943, in which he found there was due plaintiff, Meyers, $13,283.67, for which he had a first lien on the premises. The Master further found that the defendant and cross-complainant, Sam Nerenberg, had a valid lien on the premises for $6,565.09, wMch was subject and inferior to the lien of Meyers. Nerenberg appeals — Mollie Dorfman has not appeared in this court.

Nerenberg filed four objections to the master’s report, three were sustained and the fourth overruled. The chancellor approved the master’s report, a decree was entered in accordance with the findings and recommendations of the master, and Nerenberg appeals.

The record discloses that Mollie Dorfman and Sam Nerenberg are sister and brother; that September 23, 1929', Mollie Dorfman and her husband Joe, executed their trust deed conveying the property in suit to the West side Trust & Savings Bank, as trustee, to secure the payment of $7,000, which was a part of the purchase money. The indebtedness was payable in installments as evidenced by 47 notes executed by Mollie and her husband, , the last of wMch was due August 23, 1933. They bore interest at 6 per cent per annum, payable monthly.

January 15, 1931, Mollie and her husband conveyed the premises by another trust deed to the West Side Trust & Savings Bank, to secure an indebtedness of $11,000, which was evidenced by their note of that date, due two years after date, with interest at 6 per cent per annum, payable semi-annually. January 30,. 1931, Sam Nerenberg, the owner of the trust deed and notes, above mentioned, executed an agreement subordinating the lien of Ms trust deed to that of the trust deed given to secure the indebtedness of $11,000. The evidence further shows that 18 of the notes belonging to Sam Nerenberg, due monthly, aggregating $2,700, were paid, leaving notes 19 to 47, due and unpaid, amounting to $4,300. That $500 was paid on the $11,000 indebtedness leaving a balance due of $10,500. The note for $11,000 and trust deed securing its payment, were owned by the West Side Trust & Savings Bank.

January 15, 1933, the time of payment of the. $11,000 indebtedness which had been reduced to $10,500, was extended to January 15, 1936, and Mollie, her husband and her brother, Sam, executed an agreement extending the time of payment of $4,300, which was the balance on the $7,000 indebtedness, to August 17, 1941. The evidence further shows that January 25,1939, the improvements on the premises were destroyed by fire and shortly thereafter, Mollie Dorfman, the owner of the premises, collected $16,250 from various insurance companies for. the loss.

Counsel for plaintiff Meyers contends that the evidence shows that on December 30, 1935, “Etta Chitra, a friend of Mollie Dorfman, purchased the said first mortgage and note from the receiver of the West Side Trust & Savings Bank” for $8,250. That “Etta Chitra (Nerenberg’s witness) used her own money and money borrowed from others to purchase this mortgage. When Etta Chitra wanted the return of the money, Mollie Dorfman pledged the first mortgage and note with another party, one Ethel Miller, as security for a loan. Upon the failure of Mollie Dorfman to pay Ethel Miller the said Ethel Miller sold the said first mortgage and note.” That plaintiff, Meyers, bought it as a defaulted mortgage in a trade of various defaulted bonds and mortgages.

On the other side, counsel for Sam Nerenberg’s position is that the evidence shows that the mortgagor, Mollie Dorfman, through her agent, Etta Chitra, bought the mortgage and note from the West Side Trust & Savings Bank for $8,250. That Chitra paid the money to the bank, received the trust deed and note and on the same day delivered them to Mollie. That Mollie, still being the owner of the premises, the lien of that trust deed was discharged and that the evidence further shows that the claim of Meyers as to how he became the owner of the note and trust deed was a sham and a fraud. We think this contention must be sustained.

Counsel for Meyers contends that the “Credibility of witnesses is a question for the master and the court to consider and pass upon and the findings of the master when approved by the court have the same binding force upon Appellate court as a jury verdict in law cases.” We think this is a correct statement of the law and it has also been held by our Supreme court that where the master’s findings have been approved by the chancellor we are not justified in disturbing the findings unless they are manifestly against the weight of the evidence. Pasedach v. Aww, 364 Ill. 491; Phillips v. W. G. N. Inc., 307 Ill. App. 1. And continuing counsel for plaintiff says: ‘6 The theory behind this rule is axiomatic in this State. The Trial Court heard and saw the witnesses alad can better evaluate their testimony,” etc. But while the law is correctly stated by counsel it is not applicable to the facts in the case before us. The master did not hear and see all the witnesses. The two principal witnesses, plaintiff Meyers, and defendant Mollie Dorfman, who were called as adverse witnesses, testified before a notary public and by agreement the evidence was submitted to the master. He did not see these two witnesses and is in no better, position to judge the truth of their testimony than are we.

Meyers' testified that he was in the real estate business and also was a security buyer; that he did not know Mollie Dorfman, had never see her and had not talked to her on the telephone; that he was the owner of the trust deed and note for $11,000; that “The note has been reduced to $8,250 and extended.” That he had the extension agreement; that he purchased them in September, 1940; “the only thing I can tell you from whom I acquired the documents, is that my business is buying and selling bonds, real estate securities, and there was some fellow who come in, (I think it was some curbstone bond salesman) and he had a bunch of defaulted mortgages and we worked out some kind of a trade. I had some defaulted mortgages too.

“I did not know the name of the person from whom I acquired the mortgage and note. I might be able to find out. We made a trade and there was some cash involved too. I paid in simple currency; he wouldn’t accept any checks; he wouldn’t trust anyone, of course, we have records when we buy and sell for straight cash, but when it works out as a trade, I don’t know just how it is handled. We keep no records when it is a trade. ... I gave certain defaulted bonds for this mortgage and note; I don’t remember what they were. I doubt seriously whether my office would have any records of this transaction.” He further testified that he did not remember at the time he purchased the mortgage and note whether he investigated the condition of the buildings himself or whether “I just took his word for it. . . . My office file would not disclose any information regarding it.' . . . I don’t remember whether I got a mortgage policy with the trust deed and notes. ... I did not receive fire insurance policies with the papers I purchased. I don’t remember whether I knew at the time I purchased the mortgage and note that the improvements on the premises had been burned to the ground, but I knew it subsequently. ... I did not investigate, nor did anyone in' my office-investigate the financial responsibility of the makers of the trust deed and note before I made the purchase.”

Mollie Dorfman, the defendant, called as an adverse witness on behalf of her brother, Sam, testified before a notary public that she had been in business but ‘had to give it up. She “couldn’t make it go.” That she did not know the plaintiff, Meyers,- — never heard of him. That she did not pay the $11,000 mortgage on the property but Etta Chitra, who was a friend of hers, did. That Etta bought the mortgage for $8,250 and later “she gave it to me because I said I am going to get money from a lady friend. ... I gave the mortgage to a lady friend. In the beginning I paid Etta Chitra off little by little.” That she could not remember the total amount she paid. She was then asked the name of the woman to whom she gave the note and trust deed and she asked: “Do I have to tell you what woman”? Her attorney then instructed her not to give the name. She further testified that she paid the unnamed woman little by little the loan the woman had made to her. She could not tell exactly how much she had paid. Thdt she did not remember when she turned over the mortgage and note to this unnamed woman. That Etta Chitra got the note and trust deed from the bank and gave it to the witness. That Etta Chitra told her she wanted her money because she was going to buy a building “but I didn’t have the money. So I went out and borrowed it from this other woman,” and gave it to Etta Chitra. That Etta Chitra did not give the witness the note and trust deed the day she bought it from the receiver of the bank but maybe two or three weeks afterwards. That she partially repaid the unnamed woman who loaned her the money; “and she told me she is going to sell the mortgage, needs money and I was trying she should keep the mortgage alive.” The woman said she was going to sell the mortgage and I said, “ ‘Go ahead and do it.’ I gave her once $500, and I gave her once $200. I think I got receipts. I paid her cash. I didn’t have any checks. . . . It is not the truth that I received approximately $16,000, as the assured on certain fire insurance policies covered by the mortgage.” That the unnamed woman sold the mortgage for $2800 or $2700. That the witness still owed her some more money on the mortgage. “I don’t know how much.” That the witness still owned the property on which she and her husband gave the mortgage. Before the evidence heard by the master was closed it was stipulated that the unnamed woman, above mentioned, was Esther L. Miller. She was not called as a witness. Etta Chitra, called by defendant Nerenberg, before the master, testified that she had known Mrs. Dorfman for 25 years; was not related to her and they “used to be good friends.” That on December 30, 1935, she bought the mortgage and note for $8,250 from the receiver of the bank. That she paid by check, “I bought it for Mollie Dorfman.” And on the same day she went to Mrs. Dorfman’s home and gave her the mortgage papers. “I say, ‘Mollie, here is the paper which you are struggling for.’ ” That the note and trust deed “were paid for by money given by Mollie Dorfman and by money I borrowed. She paid back the money I loaned her up to the penny. . . . Mollie Dorfman and I are the best of friends. . . . She is one of the finest persons in the world. . . . The day I went to get the mortgage, Mollie Dorfman gave me the money in cash. I bought a check at.the Liberty Bank. ... I paid $1.40 for it,” and'gave the check to the receiver and he gave her the mortgage. On cross-examination she testified that Mr. Sian, Mrs. Dorfman’s lawyer, who apparently was at the bank, read the mortgage to her. That she did not know plaintiff Meyers, had never seen him. That in paying the mortgage she used $1,800 of her own money, borrowed $500 from Dr. Brodie, $300 from her mother-in-law and $500 from her friend, Mrs. Alec.

On re-direct she testified that Mr. Sian, Mollie’s lawyer, was at the bank the day before she bought the mortgage. “I was short some money that day. I came the next morning myself and I said, ‘here is the rest of the money,’ then the receiver gave it to me.” That she had known Mollie Dorfman and her brother, Sam Nerenberg, since they came to the United States.

It was then stipulated by the parties that if plaintiff, Meyers, were present he would testify that he was the owner and holder of the note and trust deed and the extension agreement on which there was a balance due of $10,500. That there was a default in the payment of taxes for the years 1931, 1938, 1939, 1940 and 1941 which totalled about $1,200 or $1,300. It was further stipulated that Sam Nerenberg was the owner and holder of the other trust deed and extension agreement, and that if plaintiff) Meyers, were cross-examined he would make the same answers as he made in the deposition taken January 31, 1941 and that “J.' Meyers would testify that the sum of $3,250 is the amount which is allocated to the cost of the mortgage and note; that the mortgage and note were acquired in exchange of first mortgage gold bonds. In addition to the exchange, some cash was paid.”

Counsel for plaintiff says that four objections on behalf of Nerenberg were made to the master’s report, the first three of which were sustained and the fourth overruled. And he says' that the substance of the fourth objection was “that the acquisition of the first mortgage and note by Mollie Dorfman, merged this lien into the legal title.”

Counsel for Nerenberg says that “Plaintiff’s testimony as to the manner and circumstances surrounding plaintiff’s claimed purchase of the note and trust deed raises a presumption against the acceptance of his testimony, and requires that on this issue his testimony be disregarded in its entirety. ’ ’ And that Mollie Dorfman’s testimony considered in the light of plaintiff’s testimony “clearly indicates that a conspiracy existed between plaintiff and Mollie Dorfman.”

The fourth objection to the master’s report was that the master erred in concluding that there was no merit in the objection for the reason that Mollie Dorfman at all times manifested clearly an intention to keep the lien of the trust deed alive. We think it obvious that whether the master was right or wrong must be determined from a consideration of all the evidence. We hold the objection was sufficient.

We have above detailed at considerable length the testimony of two witnesses, Meyers and Mollie Dorfman, and think little credence should be given to what they said. Meyers claims to have purchased the note and trust deed from some curbstone bond salesman whose name he could not remember; it was in default— many years overdue and taxes were unpaid for years. Esther L. Miller, the unnamed woman, was not called as a witness. The buildings on the property had been totally destroyed by fire and the evidence shows that Mollie Dorfman, although she denied receiving the insurance, was paid $16,250 for the loss caused by the fire. As above stated, the master did not see or hear these two witnesses testify and of course the chancellor saw and heard none of them. In these circumstances we think that Sam Nerenberg should be given a first lien on the property.

The decree of the Superior court of Cook county is reversed and the cause remanded with directions to give Sam Nerenberg a first mortgage lien on the property.

Reversed and remanded with directions.

Niemeyer and Matchett, JJ., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Clinton Donner, Plaintiff in Error.
    Gen. No. 42,993.
    Heard in the first division of this court for the first district at the February term, 1944.
    Opinion filed April 3, 1944.
    Wade G. Morgan, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment of the Municipal court of Chicago entered November 1, 1943, by which he was found guilty of assaulting Walter Lowe with a knife October 30,1943, and sentenced to the House of Correction for six months and a fine of $25 was imposed. Defendant also seeks to reverse the judgment of the Municipal court of Chicago entered December 24, 1943, overruling his motion and dismissing his petition filed under section 72 of the Civil Practice Act.

The record discloses that November 1, 1943, an information was filed by leave of court in which Walter Lowe charged defendant with assaulting him with a knife on October 30, 1943. The order of court recites that the defendant was arrested and was then present in court and The People were represented by the State’s Attorney; that defendant was arraigned and entered a plea of not guilty; that “Said defendant being duly advised by the Court as to his right to a trial by jury in this cause, elects to waive a trial by jury”; that by agreement the cause was submitted to the court for trial without a jury and “after hearing all the testimony of the witnesses” the court found the defendant guilty as charged in the information, “and it is considered and adjudged by the court that said defendant is guilty of the criminal offense of willful AND MALICIOUS ASSAULT WITH A DEADLY WEAPON UPON THE PERSON OF ANOTHER WITHOUT ANY CONSIDERABLE PROVOCATION AND UNDER CIRCUMSTANCES SHOWING AN ABAND-DONED AND MALIGNANT HEART WITH INTENT THEN AND there to inflict a bodily injury ’ ’ and he was sentenced as above stated.

December 20, 1943, counsel' for defendant served notice on the State’s Attorney that he would appear before the court on the next day and move the court “to recall and reverse the judgment” of November 1, and a copy of defendant’s petition was attached. In the petition defendant swears that on the night of October 30, 1943, he was violently assaulted by Lowe with a large knife without any provocation; that he in self defense, undertook to defend himself. That on the next day, November 1, Lowe appeared before Judge Borrelli of the Municipal court, swore to the complaint [information] and perjured himself in swearing to the information; that defendant was immediately arraigned and tried without a jury, without assistance of counsel and without process to compel the attendance of a jury and without being served with a copy of- the information; that defendant was found guilty, convicted and sentenced as above stated.

The petition further set up that defendant was illiterate and ignorant of his constitutional rights and without negligence on his part he was deprived of making his defense of self defense. That the trial was commenced “and concluded, without petitioner having been first advised and informed, that he was entitled to trial by jury of his peers,” etc. The petition further sets up-that “there was in existence evidence in the form and nature of competent testimony which would have established his defense of “self defense,” which he was unable to produce on account of his ignorance. Obviously the allegation last quoted is but a conclusion. What evidence he would produce is not stated.

The State’s Attorney filed a motion to dismiss setting up a number of grounds and the matter was con-tinned to December 22, and on the latter date an order was again entered continuing the matter until December 24. On that date defendant filed an affidavit in support of his petition tending to show that the assault he made on plaintiff was in self defense. After the hearing the court entered an order sustaining the State’s Attorney’s motion to dismiss the petition.

Counsel for defendant in his brief says that the constitution and the statute of this State were violated; that defendant was entitled to have the aid of counsel but that through excusable mistake or ignorance the court was misled and defendant’s rights were violated.

The judgment of the court recites that defendant was advised by the court of his right to a trial by jury. And there being no report of proceedings of the trial, we must assume this to be the fact and that defendant’s allegation in his petition, that he was not so advised, cannot contradict the record. The contention that the judgment cannot stand for the reason that defendant was not represented by counsel does not warrant a reversal. People v. Kresinsky, 296 Ill. App. 211; People v. Parcora, 358 Ill. 448.

In the Kresinsky case we quoted from the Parcora case as follows: “The court in the trial of criminal cases is bound to see that counsel is provided, when requested, for defendants unable to procure such assistance. It is a matter of common knowledge that in a court such as the municipal court of Chicago hundreds of cases are heard without the intervention of counsel. In the absence of a sufficient showing to the contrary, this court must presume that the judge hearing this case . . . did not deny a request for the services of counsel. ’ ’

We are further of opinion that the failure to furnish defendant with a copy of the information does not warrant us in disturbing the judgment or order of the court. People v. Watt, 380 Ill. 610. In that case it was contended that neither the defendant nor his counsel was furnished with a copy of the indictment as required by the statute. The court said: 1 1 The authorities cited by plaintiff in error do not hold it is mandatory to furnish such copy of the indictment.” That such failure is merely irregular and that the statute is but directory. If defendant wants a copy of the indictment he should demand it, and if the demand is refused defendant would have ground for complaint.

We hold that in this case we have the right and it is our duty to pass upon the judgment by conviction and also the order of the court dismissing defendant’s petition. People v. Cohen, 376 Ill. 382. While it is true that a proceeding brought under section 72 of the Civil Practice Act is civil in its nature and while defendant has not followed the proper procedure of appealing from the order denying his motion, yet the case is here on- writ of error and under Buie 28 of the Supreme Court and Buie 4 of this court, it is our duty to pass on both the judgment and the order of court. The rule provides: “If a writ of error be improvidently sued out in a case where the proper method of review is by appeal, or if appeal be .improvidéntly employed where the proper method of review is by writ of error, this alone shall not be a ground for dismissal, but if the issues of the case sufficiently appear upon the record before the court of review, the case shall be considered as if the proper method of review had been employed.”

The judgment and order of the Municipal court of Chicago are affirmed.

Affirmed.

Niemeyer and Matchett, JJ., concur.


text:
    N. W. Baumgarden, for Use of Reconstruction Finance Corporation, Appellant, v. American National Bank and Trust Company of Chicago, Successor Trustee, and N. W. Baumgarden, Appellees.
    Gen. No. 42,902.
    Heard in the first division of this court for the first district at the December term, 1943.
    Opinion filed April 3, 1944.
    Rehearing denied April 17, 1944.
    Lee Walker, M. O. Hoel and Elmer P. Schaefer, all of Chicago, for appellant.
    Lederer, Livingston, Kahn & Adsit and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago, for appellee; Sigmund Livingston, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The finance corporation recovered several judgments against N. W. Baumgarden, on which having failed to collect by execution it brought suit in garnishment under chapter 62 of the Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.284 et seq.]. It caused the American National Bank and Trust Company to he summoned as garnishee. The garnishee was dismissed and plaintiff appeals.

There is no dispute as to the facts, all of which are settled by the pleadings. The garnishee three times answered that it had received and holds certain proceeds of trust funds for the benefit of the judgment debtor, Nathan Baumgarden, and that these trusts were created for his benefit under the will of his father, Bernard Baumgarden. The answers aver that since the funds are held as part of trusts of this kind, equitable in their nature, the funds are not subject to garnishment in defendant’s hands. The last answer of the garnishee sets up the further defense that the matter is res judicata by reason of a decision of the United States Circuit Court of Appeals for the Seventh District, reported in 131 F. (2d) 741. It is contended by reason of this judgment and decision of the Circuit Court of Appeals that none of the funds in this trust can ever be- garnisheed by this plaintiff to satisfy any liability from Nathan Baumgarden to the plaintiff, Reconstruction Finance Corporation.

There are two questions on this appeal, either of which is controlling. The first is whether by the proceedings described in 131 F. (2d) 741 the question here in issue has become res judicata between these parties in favor of the defendant. The second, argued from many standpoints and with numerous citations of authorities, is whether garnishment may be used under the Illinois Statute to appropriate proceeds of trust funds which have been allocated as income to the beneficiary of a trust, although the trust is not a spendthrift trust, so-called, and is subject to voluntary alienation, where the trust- was created by someone other than the judgment debtor. We hold on this record the first question must be answered in the affirmative, the second in the negative.

The issue is res judicata by reason of the litigation between the parties in the United States courts, and irrespective of that decision plaintiff could not on the merits recover in the circuit court of Illinois.

While it is ordinarily true, as defendant points out, that the decision of a federal court interpreting a State statute is advisory only to the State court, there are facts here which decisively distinguish from the ordinary situation. Here the parties are identical. The issues also are identical. The eases are distinguishable only by the fact that the suit in the Federal court was based on a different judgment. There is no contention, however, that either judgment is not valid or that the judgments are different in their natures. Every point made now by the Reconstruction Finance Corporation in this court was made in said hearing of the aforesaid cause in the United States Circuit Court of Appeals and decided adversely to the contention of the Reconstruction Finance Corporation. An examination of the opinion rendered in the federal court shows that each and every one of these questions there argued received careful consideration. There are many decisions of this and other States holding under like circumstances that the law of res judicata is applicable. Charles E. Harding Co. v. Harding, 352 Ill. 417; Wright v. Griffey, 147 Ill. 496; Tilley v. Bridges, 105 Ill. 336; Corczyca v. Stanoch, 308 Ill. App. 235; Am. Jur., Vol. 30, § 178, p. 920.

We hold the federal judgment is a bar to the action here brought, and this seems to be conclusive. However, we think we should also say that we agree with the reasoning of the opinion of the Circuit Court of Appeals and the judgment rendered by it. Indeed, that opinion is quoted with apparent approval by our Supreme Court in Dunham v. Kauffman, 385 Ill. 79.

The judgment of the trial court will be affirmed.

Affirmed.

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


author: Mr. Justice Niemeter Mr. Presiding Justice O’Connor

text:
    Virginia B. Hamberg, Appellee, v. Mutual Life Insurance Company of New York, Appellant.
    Gen. No. 42,887.
    Heard in the first division of this court for the first district at the December term, 1943.
    Opinion filed April 3, 1944.
    Rehearing denied April 17, 1944.
    Winston, Strawn & Shaw, of Chicago, for appellant; Louis W. Dawson, George B. Christensen, Gerard E. Grashorn and Edward J. Wendrow, all of Chicago, of counsel.

      Arthur J. J. Welsh and Julius S. Neale, both of Chicago, for appellee; Walter E. Moss, of Chicago, of counsel.
   Mr. Justice Niemeter

delivered the opinion of the court.

Defendant appeals from a judgment for $1,203.22, the amount of death benefits then payable to plaintiff in instalments under an insurance policy for $5,000, issued August 14,1940 by defendant on the life of Stanley H. Hamberg.

Over plaintiff’s objection the cause, commenced in the circuit court of Cook county, was transferred to the United States court, where a trial resulted in a verdict for defendant; the judgment entered on this verdict was vacated and the cause remanded to the State court; the complaint was amended, defendant answered and filed a counterclaim seeking annulment of the policy because of misrepresentations in the application as to Hamberg’s medical history. The trial resulted in a verdict and judgment for plaintiff; defendant moved for judgment, notwithstanding the verdict, and also filed a motion for a new trial. Both motions were denied.

When he applied for the policy the insured was 29 years of age, about 5 feet 10 or 11 inches in height and weighed about 192 pounds; he had played football in college and carried on his athletic activities after-wards ; in the evening of June 11, 1940 he complained of numbness in both arms and pain and numbness between the shoulders; his wife, the plaintiff, called Dr. Mackenzie, who examined his throat, ears, eyes, chest, lungs, heart, abdomen and reflexes and found a temperature of 102 Fahrenheit and a blood pressure of 180 systolic and 130 diastolic. The doctor says the normal temperature is 98.4, and normal blood pressure for a man 29 to 30 years- of age is 150 or less systolic, and 100 or less diastolic. The doctor told Hamberg to stay in bed until his temperature had been normal for 24 hours and then come to the doctor’s office; aspirin tablets were prescribed; the insured went to work the next morning. June 18 he was given a further examination by Dr. Mackenzie, who wrote him the following day stating that his blood specimen was normal but that on microscopic examination a considerable number of pus cells were found in the urine; the doctdr asked that Hamberg see him in about 10 days; that with a view to making a diagnosis he might investigate whether the pus cells came from the bladder, kidney or prostate or whether they were the result of Hamberg’s recent febrile upset. Hamberg did not see the doctor again until November 19. He then told the doctor that he had played touch football the Sunday before and went to bed feeling fine, but awoke about 2 o’clock in the morning with a feeling as of a band around his chest; that he could not take a deep breath and felt more comfortable sitting up than lying down; that he felt all right the next few days, but on walking a few blocks in the cold would get a pain in the triceps region in both arms and a feeling of pressure over the whole chest area; that after playing touch football the day before his visit he again had pain in the arms and a numb, dull pain in the heart area after walking-several blocks in the cold; that these pains disappeared a short time after he went inside and sat down. On physical examination the doctor found the heart apparently normal and the blood pressure 152 systolic and 102 diastolic; however, he told Hamberg that his symptoms were indicative of disease of the heart; he gave him some nitroglycerin tablets to dilate the blood vessels very rapidly and to relieve the pain in the region of the heart, and advised him to have an X-ray of the chest to see if the heart was enlarged, and to have an electrocardiogram made right away and go to the hospital for further examination, and that they should probably keep him in bed for a prolonged period if the electrocardiogram showed the heart was damaged. December 4, 1940 Hamberg was examined by Dr. Donkle, a specialist in diagnostic work, who found him suffering from shortness of breath, pain around his chest and dizziness; he had a rapid heart and some discoloration about the mouth and hands; an electrocardiogram was taken the following day by another doctor; this shows evidence of myocardial damage. December 13 the insured was found dead, sitting in his automobile in a parking lot near his place of business. Dr. Donkle, as attending physician, certified the cause of death as myocarditis and testified that this is a chronic affair and had been in existence for several months.

Hamberg applied for insurance August 2, 1940; in answering certain questions in his application he stated that he had not consulted any physician or practitioner for any purpose in the preceding 5 years; that albumin, sugar or other abnormality had never been found in his urine; that he had never had a blood examination or other special laboratory test and had never had abnormal blood pressure. In its affirmative answer and counterclaim defendant alleges that these, and other answers which we need not consider, were falsely and fraudulently made, with intent to defraud and cheat the defendant, and that if the insured had answered truthfully defendant would not have issued the policy. Plaintiff filed a lengthy reply, admitting the answers alleged to have been made, denying that they were wholly and knowingly false, and seeking to qualify and minimize their effect. No further pleadings were filed, and plaintiff contends that by its reply “the plaintiff in apt language showed that the supposed misrepresentations of Stanley H.'Hamberg were immaterial,” and that, “as the pleadings now stand the immateriality of the supposed misrepresentations are admitted.” This position is untenable. To hold otherwise would unnecessarily extend the pleadings to be filed in order to arrive at an issue, and defeat the purpose of the present practice act. Defendant could traverse the reply only by repeating the allegations of its counterclaim.

Defendant contends that the effect of the misrepresentations charged is determined by section 154 of the Insurance Code of 1937 (Ill. Rev. Stat. 1943, ch. 73, par. 766 [Jones Ill. Stats. Ann. 66.829]), and that it is no longer necessary to consider or attempt to reconcile the numerous cases dealing with policies in force prior to the enactment of the code; that under this section misrepresentations, as well as false warranties, defeat recovery on a policy, if made with intent to deceive, or if they materially affect the acceptance of the risk or materially affect the hazard assumed by the "company. Plaintiff does not directly answer this position of the defendant. She cites the provisions of the policy that “All statements made by the Insured shall in the absence of fraud, be deemed representations and not warranties,” and, relying on decisions prior to the enactment of the code, where distinctions were made between misrepresentations and warranties, insists that defendant must affirmatively prove that the answers complained of were material and untrue, and that Hamberg knew them to be untrue when he made them, or did not act in good faith when making them. She then argues that the evidence does not show that any of the answers were knowingly false or that any of the answers were made with actual intent to deceive. Section 154, after stating that no misrepresentation, false warranty or breach of condition shall defeat or avoid a policy unless stated in the policy or indorsement or rider attached thereto, or, in a written application therefor, of which a copy is attached to or indorsed on the policy and made a part thereof, provides: “No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company. ’ ’ The language used is clear and unambiguous. The section places representations and warranties on the same footing and provides, alternatively, that before a misrepresentation or false warranty shall defeat or avoid a policy (a) it shall have been made with actual intent to deceive, or (b) it shall materially affect the acceptance of the risk, or (c) it shall materially affect the hazard assumed by the company. Anderson v. John Hancock Life Ins. Co., 316 Ill. App. 338; Illinois Insurance Code Annotated, page 285; Krajewski v. Western & Southern Life Ins. Co., 241 Mich. 396; North American Life Assur. Co. v. Jones, 287 Mich. 298; Rainger v. Boston Mut. Life Ass’n, 167 Mass. 109; Johnson v. National Life Ins. Co., 123 Minn. 453; Mutual Life Ins. Co. v. Allen, 174 Ala. 511; Security Life Ins. Co. of America v. Black’s Adm’r, 190 Ky. 23.

The undisputed evidence shows that all the answers given above were false, and that, with the possible exception of the answer relating to the abnormal blood pressure, all were known to be false when the insured made them. We make the exception because Dr. Mackenzie testified that he did not discuss the blood pressure reading with Hamberg. It is unnecessary to make a holding as to whether the misrepresentations were made with actual intent to deceive. Recovery must be denied if any of the misrepresentations materially affected the acceptance of the risk or the hazards assumed by the company. The acting medical referee of the defendant testified, without contradiction but over plaintiff’s objection, that had the questions been answered truthfully the defendant would not have issued the policy, and that the answers to the questions are material to the risk the defendant was asked to assume. He also testified, without contradiction and without objection by plaintiff, that the facts which wonld have been disclosed by truthful answers to the questions would increase the risk to be assumed by the defendant. Corroboration of this position is found in the testimony of Dr. Mackenzie. He testified that as late as November 19 his physical examination disclosed nothing wrong with the heart and showed a blood pressure practically normal, but that the symptoms stated by Hamberg were indicative of disease of the heart which required immediate action in the way of X-ray and electrocardiogram and hospitalization for further examination. Information as to the prior examinations by Dr. Mackenzie and his findings, which truthful answers would have revealed, would undoubtedly have led the medical examiner of the defendant to a different conclusion than that reached by him on his examination. He, like Dr. Mackenzie, found Ham-berg’s heart to be all right. He testified that he could not say from his examination that it was all right.

The trial court should have held as a matter of law that the policy was avoided because of misrepresentations which materially affected acceptance of the risk, as well as the hazards assumed by the company. On presentation of the claim under the policy and by its answer defendant tendered the quarterly premium paid on the policy, with interest, and on the trial tendered that amount in open court. It was refused.

The judgment is reversed and judgment entered here for plaintiff for the sum of $34.60, without costs. The costs here are taxed against plaintiff.

Reversed and judgment here.

Mr. Presiding Justice O’Connor

specially concurring: I agree that the judgment should be reversed for the reason that the undisputed evidence shows that the answers given by the assured to the questions asked of him were knowingly false. But I am unable to agree with the construction given to § 154 of the Insurance Code of 1937. That section provides that no representation or false warranty made by the insured, etc., shall defeat or avoid the policy unless such misrepresentation or false warranty are attached to the policy. The section then continues: “No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.” Prior to the passage of this section in 1937 it had been held by the Supreme Court of this State, by this court and by the Supreme Court of the United States and other courts that where it was sought to avoid a life insurance policy on the ground that the insured had made false answers to questions in his applications the good faith of the applicant in making the answers was always a material one and the question in each case was whether the answers were knowingly false. Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133; Miimesota Mut. Life Ins. Co. v. Link, 230 Ill. 273; Moulor v. American Life Ins. Co., Ill U. S. 335; Joseph v. New York Life Ins. Co., 219 Ill. App. 452; Walsh v. Prudential Ins. Co., 285 Ill. App. 226; Thompson v. State Mut. Life Assur. Co., 305 Ill. App. 255; McMahon v. Continental Assur. Co., 308 Ill. App. 27. See also Froehler v. North American Life Ins. Co., 374 Ill. 17. There are other cases holding that where the applicant for insurance gives false answers to questions put to him, the question whether he knew they were false is immaterial. Some of the cases we referred to in the Joseph case where we pointed out that in a number of such cases the statement in the opinion was obiter.

In the instant case section 154 provides that no misrepresentation made by an applicant for insurance “shall defeat or avoid the policy unless it shall have been made with actual intent to deceive.” These words, ‘ ‘ shall have been made with actual intent to deceive” are rendered meaningless by the language which immediately follows them, vis., “or materially affects either the acceptance of .the risk or the hazard assumed by the company.” As stated by Prof. Havighurst in discussing this section — obviously a misrepresentation that does not affect the risk or hazard assumed is wholly immaterial and would not defeat the policy even though fraudulent. ‘ ‘ The obvious purpose of the section is to benefit the assured and not the company.” 32 Ill. Law Eev. 403.

I think the word “or” after the word “deceive” should be construed to mean ‘1 and. ’ ’ Ayers v. Chicago Title & Trust Co., 187 Ill. 42-56; Voight v. Industrial Com., 297 Ill. 109; People v. Northwestern College, 322 Ill. 120-124.

Mb. Justice. Matchett: I concur for the reasons stated by Mr. Presiding Justice O’Connoe.


author: Mr. Justice Niemeyer

text:
    Margaret Rehula, Administratrix of Estate of Joseph Rehula, Deceased, Appellant, v. Charles Bessert and Frances Taylor, Trading as Taylor Trucking Company, Appellees.
    Gen. No. 42,908.

      Heard in the first division of this court for the first district at the December term, 1943.
    Opinion filed April 3, 1944.
    Louis A. March and Brody & Zimmermann, all of Chicago, for appellant; Robert L. Brody, of Chicago, of counsel.
    Donald M. Roche, of Chicago, for appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff, administratrix of the estate of her deceased husband!, appeals from a judgment dismissing without costs her action for the wrongful death of decedent. The order of dismissal was entered on defendants ’ motion, on the. ground that plaintiff’s cause of action had been released and transferred to decedent’s employer, J. Greenbaum Tanning Company, by plaintiff’s acceptance of compensation benefits in the sum of $1,750.

Plaintiff filed a complaint alleging that her intestate, while in the exercise of due care for his safety, sustained injuries resulting in his immediate death through the careless and negligent handling of a truck owned by defendant Frances Taylor and operated by defendant Bessert as her agent. Defendants filed a joint answer in which they alleged that decedent, his employer and the defendants were all operating under and subject to the Workmen’s Compensation Act, and that by reason of that fact and that decedent’s death resulted from an accident arising out of and in the course of his employment, the administratrix has no cause of action; by leave of court this answer was withdrawn and a motion to dismiss entered; defendants filed in support of the motion duly certified copies of the records of the Industrial Commission showing that the tanning company and defendant Taylor were insured against liability under the Workmen’s Compensation Act at the time of the accident; that plaintiff as widow of decedent had filed an application for adjustment of compensation, alleging that decedent sustained an injury arising out of and in the course of his employment by the tanning company; that the arbitrator had awarded compensation totaling $4,000, payable over a period of 314 weeks; that pending review of the award before the Industrial Commission plaintiff’s application was dismissed on motion of the tanning company, setting up a settlement contract approved by the Industrial Commission reciting the payment of $1,750 in a lump sum “in full, complete and final settlement and release of any and all liability under the Workmen’s Compensation Act on account of the death of said Joseph Behula (decedent),” and further reciting that the tanning company denies liability and denies that the accidental injury arose out of the employment of decedent, and that the tanning company paid the $1,750 with the understanding that it is not an admission of any liability on its part, but that the payment is made solely to avoid litigation; that plaintiff receipted for the $1,750, as per the settlement contract approved by the Industrial Commission, in full settlement of compensation under the provisions of the Illinois Workmen’s Compensation Act for injuries received by the employee because of an accident while in the employ of the employer. No evidence was heard. The motion was determined solely upon matters presented by the record of the Industrial Commission.

Plaintiff admits that all the parties were under the Workmen’s Compensation Act but insists that the act has no application unless the accident resulting in decedent’s death arose out of and in the course of his employment, and that this is a question to be decided on the trial before the court and jury and not upon a motion. Defendants contend that decedent was killed in an accident arising out of and in the course of his employment by the tanning company, and that plaintiff, having elected to accept compensation benefits under the award and settlement, has released her claim and cannot maintain the present action.

The Workmen’s Compensation Act provides compensation only for injuries resulting from accidents arising out of and in the course of employment. Edmonds v. Industrial Commission, 350 Ill. 197. It therefore follows that if the injuries resulting in decedent’s death did not arise in the course of employment the Workmen’s Compensation Act has no application to plaintiff’s claim against defendants. If decedent’s death resulted from an accident arising out of and in the course of his employment, the act controls — all parties being bound by it — and plaintiff has no right of action against defendants. O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 255, 256; Thornton v. Herman, 380 Ill. 341. This is true whether plaintiff accepts or refuses benefits under the act. No right of election is given to an injured employee to proceed under the act against an employer or bring an action at law against a third person whose negligence caused the injury. In this respect the Illinois act is different from that of Michigan, which controlled the rights of the parties in Biddy v. Blue Bird Air Service, 374 Ill. 506, cited by defendants. Under our act the employee must proceed under the compensation act unless the third person is not bound by the act. If the third person is outside the act the employee is not put to an election between compensation under the act and damages at law for negligence. He may prosecute both remedies at the same time. O’Brien v. Chicago City By. Co., supra, and Gones v. Fisher, 286 Ill. 606, 612. If there is no duty to elect when the negligent person is outside the compensation act, there is no reason for an election when the accident is outside the act. Many cases may arise where a claimant may be uncertain whether his right is under the compensation act or under the common law. In the present case plaintiff had received an award totaling $4,000; the employer was contesting the award and insisting that the accident had not arisen out of and in the course of decedent’s employment. Acceptance of less than one half the total award of a compromise settlement is some evidence of uncertainty as to plaintiff’s remedy and the party ultimately liable. If; as defendants claim, this may result in a plaintiff sometimes receiving double compensation, the defendants, if guilty of negligence, cannot complain. As said in the O’Brien case (262, 263): “No injustice is done to a person negligently injuring another in requiring him to pay the full amount of damages for which he is legally liable without deduction for compensation which the injured person may receive from another source which has no connection with the negligence, whether that source is a claim for compensation against his employer, a policy of insurance against accidents, a life insurance policy, a benefit from a fraternal organization or a gift from a friend.” Gross v. Cuneo Press, Inc., 251 Ill. App. 560, presents a situation strikingly similar to the present case. There the plaintiff, an employee of the Chicago Surface Lines, brought an action to recover for injuries sustained through the alleged negligence of defendant; defendant filed a plea alleging that at the time of the injury plaintiff was in the employ of the surface lines; that the surface lines, defendant and its agents were working under the Workmen’s Compensation Act and that the accident arose out of and in the course of plaintiff’s employment; a replication was filed. The trial court directed a verdict for defendant, holding that as a matter of law the injury arose out of and in the course of plaintiff’s employment. The evidence showed that plaintiff, a streetcar conductor, left his car to assist in pushing a stalled automobile from the tracks to a point where it did not interfere with the passage of the streetcar; those in charge of the automobile, for their own convenience, requested plaintiff and the motorman to assist in moving the automobile to a point 175 or 200 feet west; while so engaged plaintiff was struck by defendant’s truck. The reviewing court held that this evidence tended to show plaintiff, when injured, was not acting within the scope of his duty to his employer, and therefore presented a question of fact for the jury to determine, and not the trial court. In speaking of the defense raised by the plea that the parties were under the compensation act, the court said (563, 564): “It appears from the evidence that plaintiff had accepted compensation for his injuries from his employer, and it is urged that this amounted to an admission of his right to recover from his employer under the Workmen’s Compensation Act, Cahill’s St. ch. 48, par. 201 et seq. The real test is whether or not the act being performed at the time of receiving injury was one coming within the scope of his employment. Whether he "received such payments from his employer was no concern of defendant (O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 262, 263), nor did the mere acceptance of them, in our opinion, constitute an election of remedies.” In Anderson v. Chicago, B. & Q. R. Co., 250 Ill. App. 92, a similar defense was made to plaintiff’s action for personal injuries. The evidence showed that plaintiff received compensation from his employer and signed receipts reciting that payments were for compensation under the act. The reviewing court held that the injuries were not sustained in an accident arising out of and in the course of plaintiff’s employment, and said (96, 97): “The Compensation Act governs where the employee’s injury or death is the result of an occurrence, ‘for which compensation is payable by the employer. ’ (Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413, 414.) Compensation is payable by the employer only when the injury or death arose out of and in the course of the employment. If the injury did not so arise, then the provisions of section 29 of the act are not applicable. (Kelly-Atkinson Const. Co. v. Foreman Bros. Banking Co., 218 Ill. App. 345.) Whether Sampo’s injuries arose out of and in the course of his employment, and not whether he made application for compensation, is the important factor to be determined. It was said in the Foreman Bros, case, supra, that ‘the situation is hot changed by reason of the fact that Cahill actually received some payments from his employer, in the form of compensation under the act. The act applies only when compensation is legally payable for the injury in question. The fact that it may actually be paid cannot affect the question of whether the circumstances of the injury are such as to bring it within the terms of the act.’ We think this doctrine is sound and is within the letter and spirit of the act.”

Defendants rely on Wilson. Garment Mfg. Co. v. Edmonds, 312 Ill. App. 317. In that case Sirota, an employee of the Wilson company, was injured through the negligence of defendants’ servant while descending in an elevator from the portion of defendants’ building occupied by his employer; he made a claim against the owners of the building and effected a settlement for $350, releasing them from all liability; he then made a claim against his employers under the compensation act and settled this claim for $350, under a settlement agreement approved by the Industrial Commission reciting denial by the Wilson company that Sirota’s injuries arose out of and in the course of his employment and that, to avoid prolonged litigation the Wilson company agreed to pay $350 in full settlement of any and all claims; the Wilson company then brought suit against defendants under section 29 of the Workmen’s Compensation Act to recover the amount it had paid Sirota. The court held that a principal factor necessary to bring the parties within the act is the requirement that the employee must have been injured in the course of his employment, and that it appeared in the settlement agreement before the Industrial Commission that the Wilson company took the position that Sirota’s injuries did not arise out of and in the course of his employment, but that” the question must be resolved from the admitted facts pertaining to Sirota’s injuries and the decisions of our courts construing the act. Judgment for the employer was affirmed. The court said (326): “We are therefore of opinion that, regardless of the provisions of the settlement agreement, the facts clearly indicate that the injuries to Sirota arose out of and in the course of his employment and that he was entitled to claim compensation therefor.. The fact that it was a disputed claim does not alter the facts disclosed by the record; nor is it of controlling importance that the parties settled the disputed claim for the purpose of avoiding litigation. In all the decisions that we have had occasion to examine, the courts considered the facts and circumstances in each case to determine whether the injury was compensable under the act. . . . ”

In that case the Wilson company was permitted to show that the accident did arise out of and in the course of Sirota’s employment, notwithstanding its position in the settlement agreement that the accident did not so arise and that the payment made by it was to avoid litigation. So, in the present case, plaintiff should be permitted to show, if she can, that the accident did not arise out of and in the course of decedent’s employment, notwithstanding her claim to the contrary before the Industrial Commission. The question whether in fact plaintiff’s claim was compensable under the act is a question which should be submitted to the jury upon answer filed and issue joined. If upon that submission it is shown that the accident arose out of and in the course of decedent’s employment, defendants will be entitled to a judgment in their favor, not because of any alleged election or release of claim by plaintiff, but because under the provisions of the compensation act plaintiff’s claim against defendants is abolished.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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