author: Mr. Justice Niemeyer

text:
    Benjamin Morris, Appellant, v. The Broadview, Inc., et al., Appellees.
    Gen. No. 43,585.

      Opinion filed March 11, 1946.
    Rehearing denied March 25, 1946.
    Released for publication March 25, 1946.
    David I. Spark, of Chicago, for appellant.
    McInerney, Epstein & Arvey, of Chicago, for certain appellees.
    H. J. Rosenberg, of Chicago, for certain other appellee.
    Harold L. Reeve, Elmer Leesman and George E. Harbert, all of Chicago, for certain appellee; Louis M. Mantynband, Sidney R. Zatz, and Melvin A. Garretson, all of Chicago, of counsel for all appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff filed a complaint asking for an adjudication that the trust described therein had terminated pursuant to its terms, and for other relief resulting from or incidental to such termination. The defendants filed their respective motions to strike the complaint and dismiss the suit. These motions were sustained by the court, the complaint was stricken and the suit dismissed. Plaintiff appeals.

The principal grounds relied upon by plaintiff for reversal of the decree are (1) That the trust in question had terminated pursuant to its terms and the attempts at extending the same were ineffective; and (2) That the provision in the trust agreement in question, giving the trustees the right to own and deal in participation certificates in the trust, is against public policy and therefore invalid.

The facts well pleaded in the complaint must be taken as true on this appeal. The defendant, The Broadview, Inc., is an Illinois corporation formed pursuant to a plan of reorganization approved by the Federal district court of the northern district of Illinois, eastern division, for corporate reorganization of the Broadview Building Corporation under section 77B of the Bankruptcy Act. Under the plan of reorganization 7,240 shares of The Broadview, Inc., par value $1.00, were issued to the three trustees, defendants herein, as voting trustees. Participation certificates in the voting trust were issued by the trustees- to persons who were ultimately to be entitled to shares of stock in the corporation, each share of stock being represented by a participation unit in the voting trust. Plaintiff held 227 units of interest in the trust. The trust agreement approved by the court provided (sec. 1 of art. 8) that unless sooner terminated as therein .provided, the trust agreement should terminate on the 14th day of July 1939; that it might be terminated at any time by the unanimous vote of the trustees, such termination to become effective on written notice of such termination and of the date thereof to the registered holders of participation certificates, and that the trustees should terminate the trust agreement if at any time the then holders of record of participation certificates evidencing at least 66 2/3 per cent of the then outstanding trust units should so request. Section 2 of article 8 provides, “Within thirty (30) days after the termination of the Trust Agreement the Trustees shall deliver or cause to be delivered to the holders of record of Participation Certificates the number of shares of Capital Stock specified therein” upon the surrender of the participation certificates properly indorsed. Section 4 of article 9 provides, “This Trust Agreement may be amended, altered or modified by the resolution of all the Trustees; provided that the Trustees shall notify the registered holders of all Participation Certificates, at the addresses shown on the transfer books of the Agent of the Trustees, of the nature of such amendment, alteration or modification, not less than ten days prior to the date on which it is proposed that such amendment, modification or alteration shall become effective; and such amendment, alteration or modification shall not become effective if at or prior to such date the holders of Participation Certificates representing 33 1/3 per cent or more of the then outstanding units in the trust shall in writing advise the Trustees of their objection to and dissent therefrom.” Complying with the foregoing provision, the trustees amended section 1 of article 8 by striking therefrom the figures 1939 and substituting in lieu thereof figures 1944, such amendment to be effective as of November 5, 1938. Less than 33⅓ per cent of the owners of the then outstanding units in the trust advised the trustees in writing of their objection to and dissent from the proposed amendment, and it was declared effective. By similar action the same section was later amended by striking therefrom figures 1944 and substituting in lieu thereof figures 1947, such amendment being declared effective as of February 8, 1944. Prior to the first amendment plaintiff was the owner of 65 trust units. Thereafter, between December 1, 1938 and March 15, 1943 he acquired 162 additional units. The complaint is silent as to whether plaintiff protested either of the amendments when notified, as provided by the trust agreement. He filed his complaint August 8, 1944.

Defendants contend that each amendment was properly made and became effective; that plaintiff and other holders of trust units, by acquiescing in the amendments, have placed upon the trust agreement a practical construction empowering the trustees to so extend the life of the trust agreement. Each of the parties quote definitions of the terms “amend,” “alter” and “modify” to support their respective positions. These words are in general use and their meaning is not uncertain. Each means, to change. There is nothing in the trust agreement restricting or limiting the application of the words. The language “This Trust Agreement may be amended, altered or modified,” is all-inclusive and extends to each and every provision of the trust agreement. Had it been the intention of the parties to the reorganization proceeding, or the district court, to restrict or limit the particulars in which the trust agreement could be so amended, altered or modified, such intent could have been easily and clearly manifested. Extension of the existence or life of a corporation is construed as an amendment of its charter. Chicago, B. & Q. R. Co. v. Doyle, 258 Ill. 624, 634; Drew v. Beckwith, Quinn & Co., 57 Wyo. 140, 114 P. (2d) 98; Ovid Elevator Co. v. Secretary of State, 90 Mich. 466; Keetch v. Cordner, 90 Utah 423, 62 P. (2d) 273. Under section 52 of the present Illinois Business Corporation Act, adopted in 1933, among the powers of amendment of articles of incorporation enumerated without limitation upon the general power of amendment, is an amendment to change the period of duration of a corporation. Similarly under the General Corporation Act of 1919 (sec. 59) it was provided that the articles of incorporation might be amended, among other ways, “by extending the period of its corporate existence. ” It is true, as contended by plaintiff, that courts of equity will not permit trustees to extend without authority the life of a trust. But neither reason nor authority has been advanced for denying the right of persons free to contract to grant to trustees the power to extend the trust in whatever manner and upon whatever conditions the creators of the trust may designate. In Schumann-Heink v. Folsom, 328 Ill. 321, 326, the court said: “It may be stated as a general proposition that anyone competent to contract may make such disposition of the legal title to his property as he pleases, may annex such conditions and limitations to its enjoyment as he chooses, and may vest it in trustees for the purpose of carrying out his intention. He has the same power to create trusts as he has to alienate "the legal title to his property. (1 Perry on Trusts, 5th ed. sec. 28.)” Provisions for the extension of voting trusts in reorganization or liquidation proceedings such as is involved here have been upheld in Bechtel v. Rorick, 65 Ohio App. 455, 30 N. E. (2d) 451; Kountze v. Smith, 135 Tex. 143, 144 S. W. (2d) 261. In the present case the provision for amendment was incorporated with the approval of the Federal court. Furthermore, plaintiff acquiesced for more than five years in the action of the trustees in amending the trust agreement by extending the life of the trust. He did not protest or object to either extension amendment, and so far as shown by the record no question of the trustees’ right to so amend the trust agreement was raised by any party in interest prior to the filing of the present suit. This is a practical construction of the agreement vesting such power in the trustees, which will be regarded by the courts in interpreting a contract. Weger v. Robinson Nash Motor Co., 340 Ill. 81, 91; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 107; Schneider v. Neubert, 308 Ill. 40, 43; Whalen v. Stephens, 193 Ill. 121, 135.

Plaintiff’s second contention is that the provision in the trust agreement giving the trustees the right to own and deal in participation certificates in the trust, is against public policy and therefore invalid. This provision, found in section 3, article 7, provides: “Any of the Trustees or any corporation or firm in which they or any of them may be interested as officers, shareholders, members or otherwise, may be the owners of Participation Certificates and may purchase, hold, sell, or deal in the same and may vote and exercise all rights with respect thereto ...” In support of his contention plaintiff cites a number of cases holding, in the absence of authority granted in the trust agreement, that a trustee is not permitted to deal in the subject matter of the trust. This rule is generally acknowledged. However, the right of trustees to deal with the subject matter of the trust when the creators of the trust authorize them to do so is as generally recognized. Eestatement of the Law of Trusts, sec. 170 (s); Welch v. Welch, 235 Wis. 282, 335; Newton v. Old-Merchants Nat. Bank & Trust Co., 299 Mich. 499; Tuttle v. Gilmore, 36 N. J. Eq. 617; Scott on Trusts, sec. 170.9. In considering the question of public policy the Supreme Court said in Schumann-Heink v. Folsom, 328 Ill. 321, 330-331: “In considering whether any contract is against public policy it should be remembered that it is to the interests of the public that persons should not be unnecessarily restricted in their freedom to make their own contracts. Agreements are not held to be void, as being contrary to public policy, unless they be clearly contrary to what the constitution, the statutes or the decisions of the courts have declared to be the public policy or unless they be manifestly injurious to the public welfare. Courts must act with care in extending those rules which say that a given contract is void because against public policy, since if there be one thing more than any other which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contract, and that their contracts, when entered into fairly and voluntarily, shall be held sacred and shall be enforced by the courts. Steen v. Modern Woodmen, 296 Ill. 104.” That the exercise of the right provided for may result in one or more of the trustees obtaining a majority of the stock, and therefore controlling the operation of the trust, is no valid objection to such an agreement. As said in Gumbiner v. Alden Inn, Inc., 389 Ill. 273, 278-279: “The owners of corporate shares may create a trust therein for any purpose they deem desirable, so long as the purpose is not prohibited by statute or some rule of public policy. No statute in Illinois prohibits a trust of the shares of a corporation for the purpose of controlling its management, and no rule of public policy forbids the combination of the owners of a majority of the shares for the purpose of controlling the corporation. In short, the purpose for which a voting trust is created determines its legality. (Venner v. Chicago City Railway Co., 258 Ill. 523.)” If the owners of a majority of the shares may combine for the purpose of controlling the corporation, an individual or several minority stockholders may lawfully acquire shares for the purpose of controlling the corporation. Trustees given the power to buy and sell shares of stock or participation units, the subject of a trust, have the same freedom, except as stated in Restatement of the Law of Trusts, supra: ‘ ‘ The trustee violates his duty to the beneficiary, however, if he acts in bad faith, no matter how broad may be the provisions of the terms of the trust in conferring power upon him to deal with the trust property on his own account.” Facts, and not conelusions, must be alleged, as in all cases of fraud, to sustain a charge of bad faith on the part of a trustee. Ashton v. Macqueen, 361 Ill. 132, 143; Garrett v. Garrett, 343 Ill. 577, 580. In his statement of the leading facts, plaintiff says he has “omitted certain allegations contained in the complaint, which the several defendants, in their respective motions, denominate variously as immaterial, irrelevant, composed of mere conclusions, and argumentative. ’ ’ The alleged violations of duty on the part of the trustees in acquiring participation units urged by plaintiff in his brief are, that the trustees, because of their position as trustees and the peculiar knowledge they obtained by reason of their position, have acquired a large number of participation certificates at low prices and gained control of the corporation ; that for this purpose they have entered into a conspiracy with certain persons and companies unknown to the plaintiff, and will acquire additional certificates unless enjoined by the court. No allegation of fact is made showing when or in what manner the trustees have availed themselves of peculiar knowledge acquired as trustees, or how plaintiff or any owner of a participation unit has been damaged by disposal of participation units to any of the trustees. If fraud was practiced upon individual owners of units in the trust by any of the trustees; the wrong was personal to the owners of the respective units and could not be made the subject of a representative suit. Langson v. Goldberg, 373 Ill. 297. It is true, as contended by plaintiff, that the acquisition by the trustees of more than two thirds of the participation units would so entrench them that the remaining owners of units and beneficiaries under the trust could not remove the trustees, or prevent action of the trustees in extending the life of the trust or disposing of or holding the property of the corporation. However, if the trustees should so entrench themselves and should for selfish purposes attempt to extend the life of the trust, or deal with the corporate property to their advantage, the plaintiff or any other owner of a participation unit would then have a right of action to prevent or redress the violations of duty contemplated or committed by the trustees. Such right of action would be based, not on the unlawful acquisition of participation units, but upon abuse of power created by the lawful acquisition of such units.

The decree dismissing the complaint is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Guaranty Mortgage and Security Company et al., Appellants, v. City of Chicago, Appellee.
    Gen. No. 43,609.

      Opinion filed March 11, 1946.
    Released for publication March 25, 1946.
    G. A. Buresh, of Chicago, for appellants.
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Head of Appeals and Review Division, and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiffs appeal from an order dismissing their amended complaint because the alleged causes of action charged in the respective counts were barred by the statute of limitations.

May 26, 1936, plaintiffs instituted an action to recover what was alleged to be the balance of the principal and accrued interest on several judgments in favor of the respective plaintiffs entered July 26, 1927, for compensation awarded for land of the respective plaintiffs condemned on petition of defendant. The claim of each plaintiff was stated in substantially identical terms in a separate count of the complaint. Two of the counts were dismissed on plaintiffs’ motion. Defendant filed a motion under section 48 of the Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 172; Jones Ill. Stats. Ann. 104.048] to dismiss the remaining counts “for that said purported causes of action did not accrue to the plaintiffs within the time limited by law for the commencement of said suit,” and filed in support of its motion an affidavit of an employee of the Board of Local Improvements of the City of Chicago, and, as exhibits thereto, photostatic copies of canceled checks and vouchers showing that, as to six of the plaintiffs, partial payments were made on account of compensation awarded for the land of the respective plaintiffs condemned, not later than October 10,1928, and a further payment not later than November 19, 1930, “for balance of compensation awarded that part of (legal description of land), being in full payment for said condemned land and in full of all claims for damages to same by reason of said proceedings, ’ ’ — the two payments to each plaintiff aggregating the full compensation awarded in the judgment rendered in favor of the respective plaintiffs. Each voucher bore an indorsement on the back— “Received of the City of Chicago full payment of the within account,” and was signed by the respective plaintiffs. But one payment (October 10, 1930) was made on the judgment in favor of the seventh plaintiff, the voucher therefor and the indorsement thereon signed by that pjaintiff being identical in form with the final vouchers and indorsements thereon used in payments to the other plaintiffs.

In opposition to defendant’s motion to dismiss, plaintiffs filed the affidavit of their attorney of record. The theory of the plaintiffs’ claim is set forth in this affidavit, which states that when the first payments were made on the judgments entered in favor of the respective plaintiffs there was due and owing on each of the judgments, as principal, an amount greater than the payments made by defendant; that defendant was in duty bound to pay the amount due on said judgments, together with the amount of interest that had accrued thereon, and the respective plaintiffs were in duty bound to accept the payment; “that defendant had not the legal right to direct the application of the payments to any part or portion of said respective judgments, and did not direct the application thereof”; that under the law partial payments should first be applied to extinguish the interest, calculated to the date of the partial payment, and the balance applied to reduce the principal; that the respective plaintiffs did in each instance make the application of the partial payments first to extinguish the interest then due on the respective judgments, and the balance to the reduction of the principal of said judgments, leaving due and owing on the respective judgments a balance on the principal of said judgments, of which the defendant had notice; that there remained due and owing from the defendant to the respective plaintiffs, on the principal of said respective judgments, at the date of the last respective payments, in each instance a much larger amount than the sum of the last payments, and in addition thereto, the interest on said principal from the date of said first payments thereon; that no consideration was given or paid for the application of the last partial payments in any other manner than as provided by law, and for the release of the balance then due and owing upon the respective judgments, and the interest accrued thereon; that the respective plaintiffs, in accepting the amounts so paid upon the respective judgments, relied on the rule of law that an acceptance by the creditor from the debtor of a less sum than the amount due, in full satisfaction of the debt, is a discharge only of so much of the debt as is equal in amount to the sum received, unless there is a release under seal; that no release under seal was given by any or either of the plaintiffs for the extinguishment of the amount due and owing by the payment in each instance of a lesser sum of money than due and owing upon said respective judgments. On hearing, based on these affidavits, the court entered the order appealed from dismissing the amended complaint.

Plaintiffs contend that on the hearing of defendant’s motion the court was obliged to accept plaintiffs’ statement in the complaint that their respective claims were for unpaid principal and accrued interest on the respective judgments, and the court could not determine, upon the affidavits filed, the disputed question of fact whether plaintiffs’ claim was for unpaid principal of the judgments and accrued interest, as alleged in the complaint, governed by the 20 years statute of limitation, or, as contended by defendant, plaintiffs’ claim was for interest on the respective judgments and subject to the 5 years statute of limitation, which commenced to run on the date of the last payment made on the respective judgments. Plaintiffs cite in support of their contention, Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, 529-530, and Hansen v. Raleigh, 391 Ill. 536, 548-550. The Diversey Liquidating Corp. case holds as invalid a rule of the Municipal Court of Chicago which permitted the court to determine from affidavits the truth or falsity of defendant’s affidavit of merits and to strike such affidavit and enter judgment of default against the defendant if the court should find the affidavit of merits to be untrue and the defense not made in good faith. The Hansen case holds that only the grounds enumerated in section 48 of the Civil Practice Act may be made the basis of a motion under that section to dismiss a complaint. The bar of the statute of limitations to a plaintiff’s claim is one of the defenses which may be raised under section 48. By that section the defendant may, when the alleged defect in plaintiff’s claim exists but does not appear upon the face of the record, file an affidavit in support of his motion. Sub-paragraph 3 of the section provides that “If, upon the hearing of such motion, the opposite party shall present affidavits or other proof denying the facts alleged or establishing facts obviating the objection, the court may hear and determine the same and may grant or deny the motion; but if disputed questions of fact are involved the court may deny the motion without prejudice and shall so deny it if the action is one at law and the opposite party demands that the issue be submitted to a jury.” These provisions for submissions of disputed questions of fact to a jury and for the consideration of other proof than the affidavits, take this section of the statute out of the rule announced in the Diversey Liquidating Corp. case holding the rule of the Municipal Court to be void. Plaintiffs having failed to demand the submission of any question of fact to a jury, or to offer or request any other proof, cannot now object to the determination of the motion upon the affidavits of the respective parties.

The trial court, being authorized to determine on motion, whether or not plaintiffs’ claims were barred by the statute of limitations, has the right to determine all facts necessary for such determination, even though it requires a finding that the claim of the plaintiffs is different from that stated in the complaint. The affidavit of plaintiffs’ attorney does not appear to be based upon facts within personal knowledge of the attorney. He does not state that he represented any of the plaintiffs prior to the institution of this action. Furthermore, the affidavit goes directly to the merits of plaintiffs’ claim, and is not unlike testimony of an attorney of record in behalf of his client, which is severely condemned. Beninca v. Nardiello, 320 Ill. 181; Crescio v. Crescio, 365 Ill. 393. Moreover, there is no statement of fact in the affidavit as to how or in what manner the defendant had notice of the alleged application of the payments received by the respective plaintiffs first to accrued interest and then to the unpaid balance due on the judgments. The acceptance and indorsements of. the checks, and the signing of receipts indorsed on the vouchers, are not denied. The effect of such action by the plaintiffs has been held to amount to an acceptance of the money received in full payment of the compensation awarded in the condemnation proceeding, leaving the question of interest on the judgment, which is created by the statute and is not a part of the judgment, undisposed of. Cohen v. City of Chicago, 377 Ill. 221, 235-236; Chapralis v. City of Chicago, 326 Ill. App. 554; Trust Co. of Chicago v. City of Chicago, 327 Ill. App. 222. Each plaintiff having received the full amount of compensation awarded him by the judgment for his property taken, and his claim or right to interest being unimpaired, there is no basis for plaintiffs’ argument relative to want of consideration for the acceptance of a lesser sum than was due and owing at the time of the receipt of payment. By accepting payment of compensation awarded as tendered by defendant, without the payment of interest accruing to the date of such payment, plaintiffs waived any right they might have had to insist upon payment of interest- before payment of principal. We have been referred to no authority, and we know of no rule of public policy which denies to plaintiffs the right to make such waiver.

The principal of the judgment having been satisfied, nothing remained except plaintiffs ’ claim for accrued interest, action for which should have been instituted within 5 years from the final payment of the compensation award. Blakeslee’s Storage Warehouses v. City of Chicago, 369 Ill. 480. Plaintiffs failed to bring action within that time.

The judgment is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor Niemeyer, J.,

text:
    Emma Wheeler, Appellee, v. Abraham Rudek, Appellant.
    Gen. No. 43,558.

      Opinion filed March 11, 1946.
    Released for publication March 25, 1946.
    Samuel Levin, of Chicago, for appellant.
    Louis G. Davidson and Joseph D. Ryan, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against Abraham Rudek and Robert Lee to recover damages for personal injuries sustained through the claimed negligence of Robert Lee who was in the employ of defendant Rudek, in driving an automobile which collided with plaintiff’s, automobile, as a result of which plaintiff was injured. Before the case was submitted to the jury it was dismissed as to Lee and there was a verdiet and judgment in plaintiff’s favor for $7,500. Rudek appeals.

The record discloses that about 12:45 P. M., August 2, 1943, plaintiff was driving her Plymouth automobile west in 90th street and Lee was driving defendant’s automobile south in Phillips avenue, Chicago. The cars collided in the intersection, defendant’s automobile striking plaintiff’s at about the middle of the right side, the car was tipped over and plaintiff injured. The complaint was in 2 counts, the first charged general negligence and the second wanton misconduct on the part of Lee, the driver of defendant’s automobile. There were no buildings at or near the intersection but considerable tall weeds which somewhat obstructed the view of each driver. The weeds were cut some distance back on the northeast corner of the intersection. There were no witnesses to the accident except the drivers of the 2 automobiles.

Plaintiff, a married woman 60 years of age, testified that she lived at 8405 Luella avenue; that before the accident her health, eyesight and hearing were good; that she did all her own housework; that she had been driving an automobile for 15 or 16 years nearly every day; that on the day of the accident she was driving her husband’s car which was a 1939 Plymouth; that just before the accident she went to the post office at 92nd and Exchange avenue; that it was a bright, clear day and she went to buy a “Federal sticker” but was told at the post office that they did not have any in stock and to come back in about an hour; so she decided to go to the home of her nephew and niece between 89th and 90th streets about 3 blocks west of the place of the accident; that she was in no hurry. As she was driving west on 90th street just prior to the accident her speed was from 15 to 16 miles an hour; that as she approached Phillips avenue she slowed down to about 12 miles an hour because of the tall weeds which were as high as the top of an automobile; that they were cut about 10 or 15 feet back from the corner; that as she approached Phillips avenue she looked south and saw no traffic coming, and then north and saw a car coming south about a quarter of a block away — about 150 feet north of the intersection; that the block just north of the intersection was a long one, about 800 feet; that when she saw defendant’s car approaching from the north she thought it was perfectly safe for her to continue across the intersection; that she started across and increased her speed to about 15 miles an hour; that when she was about halfway across the intersection she again looked and saw defendant’s car and realized it was approaching very fast, about 50 to 75 feet from the intersection. She pulled to the left and increased her speed and about half of her automobile was west of the west curb line when defendant’s car suddenly turned to the southwest and struck her automobile on the right side between the front and rear doors. That defendant’s car was traveling about 35 miles an hour just before the impact, although it may have slowed down a little; that when the cars collided plaintiff’s automobile was thrown sideways over on to the southwest corner of the intersection on its left side.

Robert Lee called as an adverse witness while he was still a defendant, testified that he was driving the Chevrolet south on Phillips avenue in the west half of the street. (The evidence shows that the roadway of each street was about 32 or 33 feet wide.) There were no buildings at any of the corners of the intersection but weeds were permitted to grow very high; that the block just north of 90th street on Phillips Avenue was about 800 feet long, the block east of Phillips avenue was a short block about 300 feet; that he was 15 years old April 6, 1943; that the accident occurred the following August 2; that he was delivering and picking up clothing for defendant at the time of the accident and was alone in the automobile; that when he finished delivering the items in the car his day’s work would be done; that as he approached 90th street he was driving about 20 to 25 miles an hour but slowed down about 25 feet before he reached the intersection and at that time he had not seen the other car; that when he reached about the north side of 90th street he was driving about 5 miles an hour; he then saw the other car; that his car was in the intersection when he first saw the other car coming; at that time he was going about 2 miles an hour and the other car about 20 to 25; that he did not remember whether he looked to see if there were any skid marks after the accident; that he did not remember what he told the police just after the accident.

Afterward Lee was called as a witness and testified in his own behalf that he was attending school prior to August, 1943, the time of the accident. That the school term ended the early part of June and then he went to work for Mr. Rudek about 2 weeks after the school closed; that he drove the automobile in delivering and picking up clothing for Mr. Rudek, who was a tailor in the cleaning, dyeing and pressing business; that the witness had driven his father’s car for about 2 years prior to the accident; that he worked every day except Sunday from 9 to 2; that he would then go to lunch; that he was on one of his regular routes at the time of the accident; that he had been going about 25 miles an hour on Phillips avenue, some distance north of 90th street; that he slowed down about 25 feet north of 90th street and was going about 10 miles an hour; the reason was that his view was obstructed by the weeds; that when he first saw Mrs. Wheeler’s car it was about 3 or 4 feet east of the east curb of Phillips avenue going west, north of the center line of 90th street; that he had a driver’s license which he received, he believed, May 11, 1943; that when he first saw Mrs. Wheeler’s car it was traveling about 25 miles an hour and his car was going from 8 to 10 miles an hour; that when he saw that her car was not slowing down he turned to the right at the intersection and put on his brake when the collision occurred. That she did not sound any horn or slow down; that she did not swerve or change her direction until just before the impact; that at no time prior to the time his car reached the north edge of 90th street did he apply his brake suddenly; that when his car came to a stop it was about 8 feet west of the west edge of Phillips avenue in the north lane of 90th street; that he saw officer Herndon shortly after the accident and denied that he had been asked some of the questions as shown by the report made by the officer, or made some of the answers as there shown; that when the officer asked him how fast he was driving at the time of the accident he said 25 miles an hour.

On cross-examination he testified that after the trial adjourned over the week-end, counsel for defendant had read over the statement as shown by the police and that the statement bore his signature.

Police officers came to the scene of the accident in response to a police radio call shortly after the occurrence. Officer Plerndon testified that the Plymouth car, in which plaintiff was riding, was lying on its left side on the southwest corner of the intersection, facing in a northwesterly direction; that the Chevrolet was standing on 90th street with the front end facing the upturned automobile and about 4 or 5 feet from it, facing in a southwesterly direction; that about half of the Chevrolet was soiith of the center line of 90th street. That plaintiff’s car, which was upturned, was damaged on the right side at the doors; that defendant’s-automobile was damaged on the left front, including the left front fender, head lamp and bumper. The front of the Chevrolet was “all pushed back.” That the officers examined the streets and found skid marks extending in a southwesterly direction starting-north of the curbline of 90th street about 28 to 30 feet long; that they went straight for a few feet and then there was a curve in a southwesterly direction leading up to the rear wheels of the Chevrolet car, “they stopped at the rear wheels of the Chevrolet; ’ ’ that the officers had a conversation with the young man (Lee) and showed him the skid marks; that the witness and his partner went to the hospital where they talked to the injured woman (plaintiff) and that his partner tried to take a statement from her. He further testified that he took a statement from the young man, Lee; that he wrote down everything that was said and Lee signed it. The statement is in the record from which it appears that Lee was 15 years of age, employed by defendant, Rudek, in delivering, and had been in such employment about 1 month; that he was driving south on Phillips avenue about 25 miles per hour; that he did not see the westbound automobile on account of the weeds; that the car was about 10 or 15 feet in front of him when he first saw it and he then applied his brakes.

Officer Johnson of the Accident Prevention Bureau testified that he came to the scene of the accident shortly after it occurred and described the positions and conditions of the 2 automobiles; that I “Noticed the skidmarks that the car going south had made.” They were about 25 to 30 feet in length; that they commenced about 10 or 15 feet north of the north curb of 90th street.

Counsel for defendant contends that it was reversibly erroneous for the court to permit counsel for plaintiff to interrogate prospective jurors as to their interest in any company that makes a practice of investigating or defending cases such as the one at bar and also whether they had any financial interest in any such company or whether they had any relatives or close friends associated with such company or financially interested. Counsel for both sides cite the same authorities, viz., Smithers v. Henriquez, 368 Ill. 588; Edwards v. Hill-Thomas Lime Co., 378 Ill. 180; Ka vanaugh v. Parret, 379 Ill. 273 and Moore v. Edmonds, 384 Ill. 535. Counsel for plaintiff contend that under the rule of law announced in these cases the questions were proper, while on the other side, counsel for defendant says that under the rule announced in those cases the questions were improper and prejudicial.

The jurors were accepted in panels of 4 and each panel was asked 2 questions and made an answer to each. The questions were: “Q. Have any of you ever' had any interest in or been in any way affiliated with any company that makes a practice of investigating and defending cases of this kind; or do you have any financial interest in such a company as that? The Jurors: A. No. Q. Do any of you have any close friends or relatives associated with any company of that kind, or financially interested in it ? The Jurors: A. No.” When any prospective juror was excused from the panels and a new one called, the questions were repeated to such persons.

Before the jury were called, the parties appeared before the court in chambers- where there was quite a lengthy hearing. Plaintiff there presented an affidavit in support of her motion for leave to ask the two questions of the prospective jurors. It set up on information and belief that defendant, Rudek, owned the automobile involved in the collision and held an insurance policy issued by the Commercial Casualty Insurance Company in the ordinary form insuring against such an accident as the one in question; that the company had employed counsel for defendant who took charge of the case; that it employed numerous persons in its office in Chicago and had many other persons to act as investigators, agents and brokers in Cook county, and that the affiant had reasonable grounds for believing that some of those persons might be on the panel for jurors; that the panel may also include close friends and relatives of those persons employed by the insurance company, etc. After the affidavit was filed, counsel for defendant asked leave to interrogate plaintiff with reference to the averments made by her in the affidavit which request was denied. Counsel himself was then sworn and stated the nature of the claim; that Rudek had a liability insurance policy with the Commercial Casualty Company to the extent of $5,000; that counsel represented the company and Rudek and that so far as counsel was advised (after examining the jurors’ cards) there was no one on the jury panel who was a stockholder or agent of the insurance company or financially interested and that so far as he was able to learn, he believed that no one on the panel knows anyone connected with the stockholders of the company. The court said he would permit the 2 questions to be asked.

In the Smithers case (368 Ill. 588) affirming 287 Ill. App. 95, an affidavit was filed before the trial and a hearing took place out of the presence of the jury. The affidavit stated that affiant had been informed and believed that the suit was defended by the American Insurance Company, of Boston, Massachusetts, etc., and it was sought to ask the prospective jurors if they had any financial interest in the insurance company or any interest which would prejudice them. Over objection the court permitted the question to be asked. The judgment was affirmed by this court and the Supreme court. The Supreme court there said, (p. 591): ‘1 The affidavit made a sufficient showing to warrant the granting of a proper inquiry. While the filing of an affidavit and a preliminary determination of the right to question the jurors as to their qualifications in any respect is unnecessary, it is a commendable practice where it is claimed the subject matter is prejudicial.

[ 592 ] “The proposed inquiry was disclosed to the court and opposing counsel in chambers and fully discussed before any attempt was made to interrogate the jurors. The record does not show the employment of any subterfuge to inform the jury that an insurance company was defending the suit, or any other improper motive or misconduct on the part of plaintiff’s counsel. From the record it appears the inquiry was for the purpose of exercising the right of challenge.” The court continuing discusses former opinions of our Supreme court touching the same question, one of which is Kenny v. Marquette Cement Manf. Co., 243 Ill. 396, and quoted the following from that case: “While the jury were being impaneled appellee was permitted to ask certain jurymen, ‘Are you acquainted with any of the officers or agents of the Aetna Insurance Company?’ This question was improper, and the objection to it should have been sustained by the trial court. . . . We do not think, however, taking into, consideration the entire record, that reversible error was committed in permitting this question to be asked. ’ ’

In the Edwards case (378 Ill. 180) the first panel of. 4 jurors were asked: “Do you own any stock, or is any member of your family employed by the Massachusetts Bonding & Insurance Company?” And connsel asked-the second panel: “Do any of you own any stock, or are you employed, or have you been employed, or are any close relatives employed in the Massachusetts Bonding & Insurance Company ? ’ ’ And the final panel: “Do any of you gentlemen own any stock, or are you employed by, or do you have any close relatives employed by the Massachusetts Bonding & Insurance Company?” The court there said: “No affidavit was filed by counsel for appellee, and no showing was made giving any reason why it was necessary to ask the questions proposed. The record indicates that he simply made the request, orally, before the judge in chambers.” The judgments of the Appellate court and the trial court were reversed. The court there pointed out that on a former trial the jury had disagreed on the question of liability.

In the Kavanaugh case (379 Ill. 273), at the commencement of the trial plaintiff’s counsel filed with the judge in chambers, an affidavit stating: “Upon information and belief” that defendant was insured in the Union Auto Indemnity Association of Blooming-ton, Illinois. A counter affidavit was filed by the secretary and executive manager of the insurance company: “that an examination of the records of the company disclosed that none of the jurors, naming them, were policyholders, stockholders, agents, employees or in any way or manner interested financially or otherwise in the affairs of the insurance company.” The trial judge permitted the question to be asked and the Supreme court in reversing the judgment of the trial and Appellate courts, and remanding the- cause for a new trial, discussed the authorities, holding that under the facts in the case it was prejudically erroneous to permit the question to be asked.

In the Moore case, (384 Ill. 535) prior to the interrogation of the prospective jurors, plaintiff filed an affidavit alleging on information and belief that defendant carried insurance with the Underwriters at Lloyds of London and that it was defending the action which was for personal injuries and that plaintiff’s interests would be prejudiced unless his counsel were allowed to inquire of prospective jurors as to their financial interest in the Underwriters at Lloyds of London. Defendants’ counsel objected and interposed a motion supported by his affidavit to restrain the interrogation requested in which it was stated that none of the jurors could possibly have any financial interest with the insurer and defendants further moved that before plaintiff’s counsel be allowed to interrogate the prospective jurors that he asked each of them their residence, employment and occupation before putting the question. The court in affirming the judgment of this court (316 Ill. App. 453, Abst.) which sustained the verdict and judgment of the trial court held that plaintiff had a right, in good faith, to interrogate prospective jurors as to their or their relatives’ possible connection with, or interest in, liability insurance companies, even though such inquiries may develop a suspicion in the minds of the jury that the defendant was protected by insurance. The court there discusses the former opinions of the Supreme court, including the Smithers, Edwards, and other cases and said the question “must be asked in good faith and not merely for the purpose of bringing home to the jurors the fact that a defendant is insured” and continuing quoted from Beasley v. Pond, 173 Okla. 355 and Dowd-Feder, Inc. v. Truesdell, 130 Ohio St. 530.

Upon a consideration of the entire record we hold that under the law as announced in the Smithers and Moore cases, the asking of the questions complained of was not reversibly erroneous.

Defendant contends that the court erred in submitting the case to the jury on the count charging wilful misconduct on the part of defendant and that the court erred in not sustaining defendant’s motion made at the close of all the evidence for a. directed verdict as to this count. It is the law that when there is no evidence to sustain such count the motion must be sustained. Greene v. Noonan, 372 Ill. 286. And counsel says that “A wilful or wanton injury must have been intentional or at least the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others.” Some years ago, in passing on a similar question, we said in Schoenbacher v. Kadetsky, 290 Ill. App. 28, that “We may surmise a case of an automobile collision at a street intersection where the defendant intended to injure the plaintiff, but those cases do not happen in actual practice. We have never had any such case in this court. The term ‘wilful’ as used in such cases implies intent or purpose, while the term ‘wanton’ expresses a reckless disregard of consequences. Trucking Co. v. Fairchild, 128 Ohio St. 519.” What is such conduct that amounts to a. reckless disregard for the safety of others depends upon the facts in each particular case. In Walldren Ex. Co. v. Krug, 291 Ill. 472, a leading case, the court said: “Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to he determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury.” And continuing the court said (p. 479) quoting from Lake Shore and Mich. So. Ry. Co. v. Bodemer, 139 Ill. 596: “What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself.” In the instant case we are of opinion that the question whether plaintiff had sustained the allegations of the second count was for the jury. There was evidence, as hereinbefore mentioned, tending to show that plaintiff was driving her car with due care and that defendant’s automobile was driven at such a speed, in view of the surrounding circumstances, including the tall weeds at the intersection, and the skid marks, as would warrant the jury in finding that defendant’s automobile was operated in a reckless disregard of plaintiff’s rights.

As to the contention that the verdict is against the manifest weight of the evidence: upon a consideration of all the evidence we are unable to say that the verdict rendered by the jury is against the manifest weight of the evidence. The jury saw and heard the witnesses testify and observed their demeanor Bon the stand. Their verdict was approved by the trial judge who also saw and heard the witnesses testify and therefore they were in a much better position to determine the truth of the matter involved than are we, sitting in a court of review where we have but the printed page before us. In these circumstances we are not warranted, under the law, in disturbing the verdict and judgment.

Counsel for defendant further say that under the statute, Par. 165, ch. 95½, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.197], motor vehicles traveling upon public highways shall give the right of way to vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left. The right mentioned in the statute is not an absolute but a qualified right. Heidler Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89; Bentley v. Olson, 324 Ill. App. 281, and other cases cited in these two opinions. We there pointed out the qualification as to the right of way mentioned in the statute as announced in an opinion by Judge Cardozo in Ward v. Clark, 232 N. Y. 195, which we held was a proper construction of the statute.

It is next contended that the verdict is excessive and counsel says: “It is quite clear that the jury awarded punitive damages and not compensatory damages and that it felt justified in so doing in view of the wilful, count.” We think neither of these contentions can lie sustained. It is clear the damages allowed were awarded to compensate plaintiff. Four instructions were given, 2 at the request of plaintiff and 2 requested by defendant, which told the jury that in fixing the damages, in case they found for plaintiff they should name such a sum as would he fair and just compensation for the injuries plaintiff sustained. Prior to the accident plaintiff did her own housework, including cleaning, washing, ironing, and cooking. Bight after the accident she was taken to the hospital where it was found the little finger on her left hand was cut to the bone; she was otherwise injured and was given morphine. She complained of severe pain in her left arm, head and back. There were bruises on her left arm which was swollen and a deformity of the left elbow. The left hand was swollen twice its normal size. An X-ray was taken, which showed that there was a complete dislocation of the left elbow joint. Other injuries, and the treatment given were mentioned ; she remained in the hospital about 15 days during which time she was in pain and on the 10th day in the hospital there was an operation performed and there was found a comminuted fracture of the radius of the left wrist, a dislocation of the ulna and a cut finger and several fragments of the bone were removed. She continued under the doctor’s care during the remainder of 1943. An X-ray was taken in October, 1943, which showed a large mass of new bone, etc. The attending physician testified that he last examined her arm several months before the trial and there was a definite limitation of motion which he considered was permanent. Plaintiff could not bend her elbow half way up- at the time of the trial which was begun March 21, 1945 — more than a year and 7 months after the accident. Three fingers on her left hand were stiff at that time. Dr. Turner testified that at the request of plaintiff’s counsel he examined plaintiff on February 14, 1945 and objectively he found the patient had a “limitation of motion in flexion of the lateral three fingers, .... In flexion her arm was limited to about eighty-eighty-five degrees; ’ ’ that the palm upward was totally absent. The evidence further shows that plaintiff’s expenses were about $700 and that she suffered considerable pain on account of the injuries. We think we would not be warranted in disturbing the verdict and judgment on the ground that the judgment is excessive.

Defendant further contends that the court erred in giving plaintiff’s instruction 1 and in refusing defendant’s offered instructions 1, 2 and 3. Plaintiff’s instruction 1 summarized the allegations of the complaint as to the negligence of defendant and authorized a verdict of guilty if the jury believed from the evidence that defendant was guilty of one or more of the acts charged. A somewhat similar instruction was approved in Goldberg v. Capitol Freight Lines, 382 Ill. 283.

By refused instruction 1, defendant sought to have the court tell the jury that they were not bound to believe facts simply because a witness stated them to be so, etc. This is a stock instruction and was covered by another instruction given. Refused instructions 2 and 3 were on the meaning of the statute hereinbefore mentioned, on the right of way of automobiles approaching an intersection. From what we have heretofore said these instructions were properly refused. Bentley v. Olson, 324 Ill. App. 281; Heidler Lumber Co. v. Wilson and Bennett Mfg. Co., 243 Ill. App. 89.

Before affirming the judgment we think we ought to say that the contention of counsel for plaintiff that “The court will not review alleged errors concerning instructions not set forth in the brief and argument,” is not the procedure now followed in this Appellate court district. Crisler v. Zahart, 318 Ill. App. 220, which opinion on this question was approved by the 9 judges of this district.

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

Judgment affirmed.

Matchett, P. J., concurs.

Niemeyer, J.,

dissents: The opinion of the court ignores certain facts stressed by defendant which distinguish this case from Moore v. Edmonds, 384 Ill. 535. In the Moore case defendants’ attorney moved that before plaintiff’s counsel be permitted to examine the jurors as to their alleged interest, connection or affiliation with the Underwriters at Lloyds of London, he be directed to interrogate the jurors concerning their residence, employment and occupation, and determine whether any of the jurors individually were connected with any company or association, and the kind and nature of the business of the company, corporation or association with which any juror was shown to be connected before inquiring of the jurors whether or not they were connected and affiliated with or interested in any corporation or association engaged in the insurance business. The trial court directed plaintiff’s counsel to first ask the jurors about their occupations, and pointed out that if the jurors appeared acceptable, counsel would then have “a right to ask them as to their friends, relatives and associates, with reference to any insurance company. ’ ’ This method of examination was followed. Plaintiff’s counsel asked about 200 questions in examining the jury, including questions similar to those involved here. These questions being answered in the negative, the jurors were asked if they had any connection with the Underwriters at Lloyds of London. The Supreme court said: “The record discloses good faith in seeking to ask the questions and, also, painstaking efforts by plaintiff’s counsel, when permitted so to do, to interrogate the jurors in a manner eminently fair to defendants as well as to his own client.” Three justices of the court concurred in the result reached in the majority opinion “because the defendant’s attorney invited the interrogation of jurors, now objected to, by suggesting that after they had been generally examined they could be collectively interrogated concerning financial interest, connection or affiliation with the Underwriters at Lloyds. . . . and hence he is in no position to raise the objection that such examination improperly disclosed that an insurance company was involved; and likewise it would negative the absence of good faith upon the part of plaintiff’s attorney.” These justices, however, objected that the majority opinion was not based upon the foregoing proposition, but extended “the rule laid down in Smithers v. Henriquez, 368 Ill. 588, so that for practical purposes the door is now open for the plaintiff upon voir dire examination of jurors to fully disclose an insurance company’s interest.”

In the instant case there was no extended or general examination of the jurors by plaintiff’s counsel, and in the examination of some of the jurors there is nothing in the record to indicate a probability that the jurors might be in any way affiliated with or interested financially or. otherwise in a company “that makes a practice of investigating and defending cases of this kind.” Two jurors were not asked as to their occupations. Plaintiff’s counsel seeks to explain this omission by claiming that, having previously questioned these jurors in another case, it should be presumed that he there inquired as to the juror’s occupations and had full information concerning them. It could equally be presumed that he then asked them as to their connection with and interest in companies investigating and defending cases of this kind. The method of examination employed by plaintiff’s counsel unduly emphasized the jurors ’ connection, if any, with insurance companies. In the Moore case the court mentions the fact that one of the defendants was engaged in the insurance business and that the business of all the defendants was of a hazardous nature, and said: “If the jurors reached the conclusion from the questions asked that. defendants were insured, — and we think the inference fair despite the fact that use of the word ‘insurance’ was consistently avoided in the questions attacked, — knowledge that one defendant was an insurance broker and that the three defendants were engaged in an extraordinarily hazardous business would undoubtedly have induced the same inference. ’ ’ Here no such inference from the business or occupation of the defendant Rudek could arise. He was a retail cleaner and dyer, collecting and delivering garments, sending them out to be cleaned and dyed but doing the pressing in his place of business. In the absence of the questions propounded to the jurors they could reasonably be in doubt as to whether he was insured, or if insured for an amount sufficient to cover the damages claimed, notwithstanding the general practice of automobile owners to carry insurance. Where the automobile owner is fully insured, as in the Moore case, the insurer and not the insured suffers .by the disclosure to the jury of the carrying of insurance. Where, as here, the defendant’s liability is only partially covered by insurance, he suffers a real wrong from the recognized liberality of jurors with the money of insurance companies in fixing liability and assessing damages when the carrying of insurance is unduly emphasized or needlessly made known to the jury. Here the testimony as to the occurrences was in direct conflict. There were two occurrence witnesses: plaintiff, in her own behalf, and defendant’s driver — first called by plaintiff for cross-examination while a party to the action, and later called by defendant in his behalf. Although police officers gave testimony as to skid marks and the location of the cars after the accident, tending to support plaintiff’s testimony, the evidence is close and the question of liability is solely for the jury. For these reasons I consider the manner of examination of the jurors as to their connection with or interest in insurance companies reversibly erroneous.


author: Mr. Justice O’Connor

text:
    Eleanor Heil and Edward Heil, Appellees, v. Harold S. Kastengren, Administrator of Estate of Joe Nigro, Deceased, Appellant.
    Gen. No. 43,578.

      Opinion filed March 11, 1946.
    Released for publication March 25, 1946.
    C. E. Heckler and Burt A. Crowe, both of Chicago, for appellant; C. E. Heckler, of Chicago, of counsel.
    Guy C. Guerine, of Melrose Park, for appellees; William McKinley and Paul E. Price, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

About 10 A. M. on February 8, 1944, Eleanor Heil was riding beside her husband, Edward Heil, in his automobile which.was being driven north by Edward in 19th avenue, Maywood, Illinois. At that time Joe Nigro, since deceased, was driving east in his automobile in St. Charles Road, Maywood. His sister-in-law Beatrice Nigro was in the automobile. The cars collided at the intersection of the two streets injuring Eleanor and damaging Edward’s automobile. She brought suit to recover damages for personal injuries sustained and Edward brought suit to recover property damage to his automobile, claimed to have resulted from Nigro’s negligence. The suit was brought March 25, 1944. Nigro filed his answer denying the charges of negligence made against him and filed a counterclaim .against Edward Heil charging him with negligence and wanton misconduct, as a result of which he was injured and his automobile damaged. Damages of $250 were claimed for the repair of defendant’s automobile and his damages laid at $2,500. Edward filed his answer to the counterclaim denying that he was in any way liable.

May 21, 1945, an order was entered suggesting the death of Joe Nigro and substituting his administrator in his stead. The casé went to trial June 5, 1945. In the complaint and counterclaim each charged the other with negligence and with wilful and wanton misconduct. -Before the trial plaintiffs withdrew the latter charge and defendant withdrew the counterclaim. The jury rendered two verdicts, one in favor of Eleanor for $2,700 and the other in favor of Edward for $285; judgment was entered on the verdicts and the defendant administrator appeals.

There were “stop” and “go” lights at the intersection of the two streets and plaintiffs’ position is that as they approached the intersection the green light was in their favor and the red light against defendant, and that defendant ran through the red light causing the collision. On the other hand defendant’s theory is that as Nigro approached the intersection the green light was in his favor but that plaintiffs drove through the red light, as a result of which the collision occurred. Since Nigro died prior to the trial, neither of the plaintiffs could testify as to how the accident occurred. § 2, ch. 51, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 107.068].

There were five eyewitnesses to the accident; two of these, Mack Hankerson and Henry Lambrecht, were called by plaintiffs; Orville J. Johnson, Anthony A. Theodore and Beatrice Nigro, by defendant.

Hankerson testified that he lived in Maywood and was employed by the National Malleable Steel Company in Melrose Park; that he witnessed the accident; that he was driving west in his automobile on St. Charles Road and stopped when he reached the intersection of 19th avenue for the red light; that he "saw defendant’s car coming east on St. Charles Road about 40 miles an hour. “The car going east on St. Charles Road come right through the light. I stopped for the light. The light was red. ’ ’

Henry Lambrecht testified that he lived upstairs in the building located at the southwest corner of the street intersection; that he was a bartender and worked in Maywood; that' he witnessed the accident; that there were two poles, one on the southwest corner and one on the northeast corner, equipped with stop and go lights; the weather was fair, no snow or ice; that he walked to the corner and wanted to go across the street on the north side of St. Charles Road. That as he started across St. Charles Road he saw a car coining east, hut it did not slow down; that he stopped at about the middle of the street and the car passed in front of him; that the lights for St. Charles Road were red; that he saw Heil’s car going north on 19th avenue. Just after the collision he saw Mr. Heil taking a woman out' of the car and carrying her into the clinic which was next door. These two witnesses further testified as to their opinion of the speed of the two automobiles and as to how they came together at the street intersection, etc.

Orville J. Johnson testified that he lived at 4937 West Chicago avenue, Chibago, and was agent for the Prudential Life Insurance Company; that he witnessed the accident; that he drove in his automobile and parked his car facing north on 19th avenue, south of the intersection; that he saw both automobiles before the accident; that the streets were dry and the weather fairly nice; that he was getting out of his automobile and plaintiffs’ automobile “came at a pretty good clip. It was coming from the south.” That it was in about the center of the street and from 10 to 20 feet from the witness. It passed his car at a speed of from 28 to 35 miles an hour; that he also saw the car going east on St. Charles Road. “The condition of the stop and go light at the corner and at the time that car went into St. Charles Road was amber. I saw the other car coming from the west. It was in about the middle of the street at the crossing. The color of the lights was amber.” That Nigro’s car was going from 20 to 23 miles per hour and then they collided near the center of the intersection; the car coming from the south struck the car going east on the rear right-hand side.

Anthony A. Theodore testified that he had a refrigeration and service station at the southwest corner of the intersection; that he was standing in the window and kept his eye on the car coming from the west and watched him cross the street. “He had the sign that said go for him.” That car was traveling about 20 miles an hour; that the light was green for St. Charles Road. The speed of the northbound car (plaintiff’s) was from 35 to 40 miles an hour; that the light for this traffic was red for the car going north; that he did not know the people in either car. The car going north hit the rear wheel of the car going east.

Beatrice Nigro testified that at the time of the accident she was riding with Joe Nigro, her brother-in-law. That she lived in Aurora at 539 Filter avenue on a farm with her husband, Michael Nigro; that Joe was taking her to a beauty parlor and they were driving east, very slowly in the center of the street, on St. Charles Road; that she was sitting in the rear on the right-hand side; that as they came up to 19th avenue the stop and go lights were green for them; that she saw a northbound automobile on 19th avenue about the distance of the court room away, coming very fast; that she noticed a man and woman in the northbound car. “The man had turned his head.” That the northbound car struck their back fender.

Counsel for defendant contend that plaintiffs failed to prove they were in the exercise of due care and caution for their own safety before and at the time of the accident and that the court should have directed a verdict in defendant’s favor as requested at the close of all the evidence. We think this contention cannot be sustained. There was a direct conflict in the evidence as to the stop and go lights. There is also evidence that plaintiffs were not driving as fast as Nigro at and before the accident. We are further of opinion that we would not be warranted in saying that the verdicts are against the manifest weight of the evidence as counsel contend. The jury saw and heard the witnesses testify as did the trial judge; the verdicts were in plaintiffs’ favor; they were approved by the trial judge who also saw and heard the witnesses. In these circumstances we would not be warranted in disturbing the verdicts and judgments on the ground that they are manifestly against the weight of the evidence.

Defendant further contends that the court erred in permitting Dr. Hubbard, called by plaintiffs, to testify in reference to certain matters. He was the first witness on the trial and testified that he treated plaintiff, Eleanor Heil, on February 8, 1944, when she came into their clinic located in Maywood; that there were two lacerations on her chin and severe contusions on the left thigh just below the hip; that he sewed up the lacerations on her chin; that X-ray pictures were taken of her thigh on which there were no external lacerations; that after a month he saw her and the thigh was improved but was still painful; that he saw her again the day before the trial (which was about 16 months after the accident;) that when he saw her about a month after the accident the lacerations on the face had healed very nicely; leaving scars, but a good union and not very noticeable; the thigh at the time was still painful and a certain amount of swelling remained. It was still swollen, tender and discolored. “My opinion is that a thigh of that sort would make' any prolonged use for standing or walking quite uncomfortable. I examined her the other day. The swelling and discoloration had disappeared but there remained a lump about the size of half a grapefruit on the posterior lateral aspect.” The doctor was then asked if he had any opinion as to what kind of treatment could be used in such a condition. Objection was overruled. He answered that the lump from external appearances was one for surgery; that it was impossible to tell definitely what it is. He then testified as to what would be the proper treatment and was asked by counsel for plaintiffs as to whether he had an opinion, based upon reasonable medical certainty, whether the condition he found might be the result of trauma. The objection was overruled and the answer was “yes.” Of course there was no merit in this question or the answer as was later developed by the testimony of Mrs. Catherine Heil, Eleanor’s mother-in-law, whose testimony was inadvertently left out of the record filed in this court. And counsel for defendant’s argument is based on the record as originally filed. However, the testimony of Mrs. Heil was later supplied and an additional abstract filed. This testimony is to the effect that Eleanor was a healthy woman and had nothing wrong with her leg prior to the accident; that she was employed at the Buick Plant and had to do quite a bit of walking and was earning $30 a week; that shortly after the accident her son, Edward," the plaintiff, carried Eleanor, his wife, into the witness’s home; that her chin was sewed up and that she had a lump on her leg as big as a football; that she looked at the leg, it was unbandaged; the chin was bandaged; that Eleanor stayed for a week during which time she was in bed; that at the end of the week her husband carried her out to the car and took her to their home on 19th avenue, Maywood; .that the witness went there for about 3 weeks to do the work Eleanor was not able to do. “I just helped her, took her under my arm to the bathroom.” That the second day after the accident Eleanor’s family physician, Dr. Grunt, came to the house; he came afterwards several times; that Eleanor recently showed the witness her leg; that “Her left thigh is still kind of big there. I saw the thigh before the accident, there was nothing on it.” In these circumstances obviously it was not necessary to have the opinion of a doctor as to whether the injury to the thigh resulted from the accident. Chicago Union Traction Co. v. May, 221 Ill. 530; Cons. Coal Co. v. Ind. Com., 320 Ill. 171; Rehthaler v. Crane Co., 218 Ill. App. 267; Ivanhoe v. Buda Co., 247 Ill. App. 336; Griswold v. Chicago Rys. Co., 253 Ill. App. 498.

Defendant further contends that the' court erred in permitting plaintiff, Eleanor, to testify because Joe Nigro had died since the accident and she was incompetent under section 2 of the Evidence Act. In support of this counsel discuss the evidence as to Dr. • Hubbard but no mention is made of the testimony of Catherine Heil which was later supplied, as above stated.

Section 2, of the Evidence Act, provides that no party to any civil action shall testify, etc., when the adverse party sues or defends as administrator, etc., except: “a party or interested person may testify to facts occurring after the death of such deceased person.” Eleanor testified to nothing except to describe the condition of her thigh at the time of the trial. We think there was no error. Moreover, her testimony was but cumulative because Dr. Hubbard had testified to the same facts.

Over objection he further testified as to the nature of the treatment that might be necessary on Eleanor’s thigh; that if there were such an operation a reasonable charge would be about $100; that the patient would be required to be at the hospital about 2 weeks at $4 a day for the hospital bill. This evidence was clearly speculative and inadmissible. Lyons v. Chicago City Ry. Co., 258 Ill. 75; Wolfstein v. Ill. Power, 254 Ill. App. 362. But since we are of opinion that the verdict and judgment of $2,700 is in no way excessive, we would not be justified in reversing for the admission of this evidence.

Defendant further contends that since the answer charged the plaintiffs with wilful and wanton misconduct and they failed to reply, this amounted to an admission that they were guilty as charged. No mention was made of this on the trial. Plaintiffs offered evidence to the effect that they were in the exercise of due care and caution for their own safety and the jury apparently were instructed that they must prove this allegation to recover although the instructions are not abstracted. In these circumstances the failure to file any reply was waived. Eagle Indemnity Co. v. Haaker, 309 Ill. App. 406; Ford Motor Co. v. Nat. B. I. Co., 294 Ill. App. 585. Moreover the allegation in defendant’s answer, that plaintiffs were guilty of wilful and wanton misconduct, did not make this charge an affirmative defense but merely tended to show that plaintiffs were not in the exercise of due care.

The judgments of the Circuit court of Cook county are affirmed.

Judgments affirmed.

Matchett, P. J., and Niemeyer, J., concur.


author: Justice Burke.

text:
    George W. Smith, Trading as Perfect Peerless Calendar Company, Appellee, v. George J. Bloom, Appellant.
    Gen. No. 43,386.

      opinion filed February 13, 1946;
    rehearing denied March 20, 1946;
    released for publication March 20, 1946.
    Luster & Luster, for appellant; Ode L. Rankin and Julian J. Luster, of counsel;
    John H. Lyle and P. F. Murray, for appellee; Ernest H. Gager, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Niemeyer.

text:
    In re Petition of Anthony Volpe to be Admitted a Citizen of the United States of America. Anthony Volpe, Appellant, v. United States of America, Appellee.
    Gen. No. 43,660.
    opinion filed April 8, 1946;
    rehearing denied April 22, 1946;
    released for publication April 23, 1946.
    Guy C. Grapple, for appellant;
    J. Albert Woll, United States Attorney for Northern Dist. of Ill.;
    Antonio M. Gassaway and John Peter Lulinski, Assistant United States Attorneys, and Dewey G. Hutchinson, United States Naturalization Examiner, Dept. of Justice, Immigration and Naturalization Service.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Presiding Justice Hayes.

text:
    Silas Hammitt, Appellee, v. Emil Sandel, Appellant.
    Gen. No. 9,490.
    opinion filed February 28, 1946;
    released for publication March 26, 1946.
    Edwin C. Mills, for appellant;
    Woods & Woods, for appellee.
   Opinion by

Presiding Justice Hayes.

Not to be published in full.


author: Justice Dady.

text:
    Clarence E. Yordy, Appellee, v. Farmers Automobile Insurance Association, Appellant.
    Gen. No. 9,485.
    opinion filed February 28, 1946;
    released for publication March 26, 1946.
    Champion, Gaskins & Lee, for appellant; E. V. Champion and F. J. Lee, of counsel;
    Black, Black & Borden, and James M. Powers, for appellee; Wallace J. Black and Kenneth W. Black, of counsel.
   Opinion by

Justice Dady.

Not to be published in full.


text:
    John M. Furr and Amanda M. Furr, Appellants, v. Shelby Loan and Trust Company et al., Appellees.
    Gen. No. 9,489.
    opinion filed February 28, 1946;
    released for publication March 26, 1946.
    A. L. Yantis and U. G. Ward, for appellants;
    Wm. H. Craig and John J. Baker, for appellees.
   Opinion by

Justice Dady.

Not to be published in full.


author: Justice Wheat.

text:
    John E. Neal, Appellant, v. Opal Fern Neal, Appellee.
    Gen. No. 9,492.
    opinion filed February 28, 1946;
    released for publication March 26, 1946.
    C. Victor Cardose, for appellant; Homer D. McLaren, of counsel;
    John P. Snigg, for appellee.
   Opinion by

Justice Wheat.

Not to be published in full.


author: Justice Sullivan.

text:
    Marks Hurtt and Martha Hurtt, his wife, Appellees, v. Florence Conklin and Nellie M. Conklin, Appellants.
    Gen. No. 43,185.
    opinion filed March 7, 1946;
    rehearing denied March 19, 1946;
    released for publication March 20, 1946.
    Winston, Strawn & Shaw, for appellants; James H. Cartwright and Alexander J. Moody, of counsel;
    Geary & Stagman and M. G. Kaufman, for appellees; Jacob Stagman and M. G. Kaufman, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Presiding Justice Wolfe.

text:
    Alexander Haddad, Administrator of Estate of Mary K. Haddad, Deceased, Appellant, v. George Marble and Mary Marble, Appellees.
    Gen. No. 10,043.
    opinion filed March 8, 1946;
    released for publication April 1, 1946.
    Paul S. Pierson, for appellant; Karl J. Mohr, of counsel;
    Large, Reno & Zahm, for appellees; Guy B. Reno, of counsel.
   Opinion by

Presiding Justice Wolfe.

Not to be published in full.


author: Justice Bristow.

text:
    Fred S. Richcreek, Appellee, v. City of Rock Island, Appellant.
    Gen. No. 10,039.
    opinion filed March 8, 1946;
    released for publication April 1, 1946.
    Leo J. Herbert, for appellant; Earl L. Scott, of counsel;
    Charles C. & Richard M. Spencer and Carl H. Wilson, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Justice Dove.

text:
    Peter McGovern et al., Appellants, v. Joseph W. McGovern, Individually and as Executor of Estate of James W. McGovern, Deceased et al., Appellees.
    Gen. No. 10,045.
    opinion filed March 8, 1946;
    released for publication April 1, 1946.
    Geary & Stagman and Barr & Barr, for appellants; Arnold D. McMahon and Jacob Stagman, of counsel;
    Oscar R. Laraway, for certain appellee;
    Robert E. Higgins, for certain other appellees.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    Board of Education in and for School District of City of Rockford, Otherwise Known as School District No. 205 of Winnebago County, Appellee, v. Board of Education of Non-High School District No. 206 of Winnebago County, Appellant.
    Gen. No. 10,053.
    opinion filed March 8, 1946;
    released for publication April 1, 1946.
    Stanton E. Hyer, for appellant;
    Charles H. Davis, for appellee.
   Opinion by

Justice Dove.

Not to be published in full.


author: Presiding Justice Matchett.

text:
    Highway Mutual Casualty Company, Appellee, v. Liberty Display Fireworks Company et al., Appellants.
    Gen. No. 43,552.
    opinion filed March 11, 1946;
    released for publication March 25, 1946.
    B. H. Baskin, for appellants; George C. Rabens, of counsel;
    Weinzelbaum & Randolph, Arnold Berger and Robert L. Brody, for appellee; Robert L. Brody, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published. in full.


text:
    Herman M. Silverstein, Appellant, v. Berkshire Life Insurance Company, Appellee. Berkshire Life Insurance Company, Appellee, v. Jackson Realty and Management Corporation et al., Appellants.
    Gen. Nos. 43,617 to 43,631.
    O’Connor, J., concurring in result.

      opinion filed March 11, 1946;
    released for publication March 25, 1946.
    Myer N. Rosengard, for appellants;
    McDonald & Richmond and Edwin Terwilliger, for appellee.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


text:
    Isabel F. Woolf, Appellee, v. Irving W. Woolf, Appellant.
    Gen. No. 43,530.
    opinion filed March 11, 1946;
    released for publication March 25, 1946.
    Bernard J. Brown and Jesse H. Brown, for appellant;
    Cantwell & Cantwell, for appellee; Robert E. Cantwell, Jr. and Louis Yager Cantwell, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Janet Roland, Appellee, v. City of Chicago, Appellant.
    Gen. No. 43,544.
    opinion filed March 11, 1946;
    released for publication March 25, 1946.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, Head of Appeal and Review Division, Henry Brandt, Herman Smith and Harry Markin, Assistant Corporation Counsel;
    Royal W. Irwin, for appellee; Clarence M. Dunagan, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Chicago Car Advertising Company, Appellee, v. Van Gray, also known as Vandorf Gray, Appellant.
    Gen. No. 43,565.

      opinion filed March 11, 1946;
    rehearing denied March 25, 1946; released for publication March 25, 1946.
    McKinley & Price, for appellant; William McKinley and Paul E. Price, of counsel;
    David H. Caplow and C. A. Caplow, for certain appellee;
    Dent, Weichelt & Hampton, for certain other appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Marjorie E. Sheffield, Appellee, v. City of Chicago et al., Defendants. Appeal of City of Chicago, Appellant.
    Gen. No. 43,599.
    opinion filed March 11, 1946;
    rehearing denied March 25, 1946;
    released for publication March 25, 1946.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, Head of Appeals and Review Division, Adam E. Patterson and Herman Smith, Assistant Corporation Counsel, of counsel;
    Royal W. Irwin, for appellee; Clarence M. Dunagan, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice O’Connor.

text:
    R. S. Schermerhorn et al., Trading as SchermerhornYoung Sales Company, v. Rolyan Corporation, Appellant.
    Gen. No. 43,474.
    opinion filed March 11, 1946;
    released for publication March 25, 1946.
    Marcus L. Silver, for appellant; M. J. Myer, of counsel;
    Goldman, Allshouse & Healy, for appellees; Louis Goldman and Robert G. Dreffein, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Reba Campbell, Appellant, v. Leo R. Campbell, Appellee.
    Gen. No. 43,495.
    opinion filed March 11, 1946;
    released for publication March 25, 1946.
    Mural J. Winstin and Marshall I. McMahon, for appellant;
    C. Hilding Anderson and Cantwell & Cantwell, for appellee; Robert E. Cantwell, Jr. and Yager Cantwell, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Justice Scanlan

text:
    Thomas H. Fisher and Chester Bowles, Administrator, Plaintiffs, v. Michigan Square Building Corporation et al., Defendants. Thomas H. Fisher, Appellant, v. Michigan Square Building Corporation et al., Appellees.
    Gen. No. 43,594.
    Opinion filed February 28, 1946.
    Rehearing denied March 26, 1946.
    Released for publication March 26, 1946.
    See also case reported on p. 143, ante.
    Norman Crawford, of Chicago, for appellant.
    Scott, MacLeish & Falk, of Chicago, for appellees; Cranston Spray and Robert S. Cushmah, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An appeal from an order discharging certain respondents appellees from a rule to show cause why they should not be punished for contempt of court for alleged violation of a permanent injunction.

We have this day filed an opinion in the case of Thomas R. Fisher and Chester Bowles, Administrator, Office of Price Administration, Intervenor, v. Michi gan Square Building Corporation, an Illinois corporation, 328 Ill. App. 143, in which proceeding Fisher filed a complaint seeking a preliminary and permanent injunction to recover possession of certain space in the Michigan Square Building from which he had been evicted on August 11, 1945, by the defendant, Michigan Square Building Corporation, the owner of the property. On September 14,1945, the chancellor, after a hearing, entered a permanent injunction order ordering defendant to restore possession of the premises to Fisher and permanently enjoining defendant, its agents, servants, etc., from directly or indirectly evicting, threatening or attempting to evict by exclusion from possession, elimination or decrease of essential services, or otherwise, Fisher from said premises. The defendant perfected an appeal from that order. While the appeal was pending Fisher filed in the original proceeding a verified petition, in which he alleged that while he was in possession of the premises on September 19,1945, the respondent Michigan Square Building Corporation and its agents, in order to bar him from continuing to exercise his possession of the premises, committed certain acts that violated the permanent injunction entered on September 14, 1945, and he prayed that the respondents be ruled to appear and show cause why they should not be adjudged guilty of contempt for violation of the permanent injunction. After the Building Corporation and certain other respondents had answered, there was a hearing before Judge Feinberg, who entered the original order, and an order was entered on, September 27, 1945, purging all of the respondents of the alleged contempt and discharging the rule as to each of them. Fisher, alone, appeals from that order. Chester Bowles, Administrator, Office of Price Administration, who intervened in the original proceeding, refused to take any part in the contempt proceeding and he has not appealed from the instant order. The following is the decision rendered by Judge Feinberg in the contempt proceeding :

“The Court: This hearing is upon a rule to show cause why certain respondents named here should not be held in contempt and punished accordingly, for allegedly violating the injunction issued by this Court.
“The decree entered in this case found that the co-complainant Fisher was illegally evicted from the housing accommodations used by him on the tenth floor of this building in question. There was a controversy between the tenant and the landlord and the tenant saw fit to submit that controversy to a court of competent jurisdiction for adjudication.
“Having submitted the matter to the Court, it must be assumed that he wants to abide by all the orderly processes of the court, the same as he expects of the defendant. It would be anomalous to ask a court of equity to assist him in his controversy and then refuse to follow the orderly processes of the court, having obtained his relief.
“The Court granted him an injunction, a mandatory injunction, that directed the defendant to restore him to possession. And it is admitted by the complainant Fisher that an appeal from that portion of the injunction or an appeal from that decree and a bond filed acts as a supersedeas and stays the mandatory portion of the injunction. That was clearly admitted and is admitted here today.
“On the application for the rule to show cause the Court heard arguments, and it was clearly the position of the complainant Fisher, coincided in by this Court, that if he obtains possession legally of the space in question after the issuance of the injunction, then the prohibitory portion of the injunction could be enforced, notwithstanding the appeal. And that is the law.
“The facts clearly here disclose, both by the evidence of the plaintiff Fisher and the other witnesses. so far heard, that he obtained access to the space on the 19th of September, after the injunction had been issued, by a trick or device and subterfuge. It is as patent as it can be, that plaintiff Fisher in his own way decided to enforce the injunction — I mean the mandatory part of the injunction, a subject clearly for the Court and not for the plaintiff.
“And he can’t do indirectly what the law would prohibit him from doing directly, by trying to enforce that mandatory provision of the injunction to restore him to possession during the appeal by getting possession by any trick or device or subterfuge. And it is asking this Court, a court of equity and a court of conscience, to assist him in carrying out the device or trick or subterfuge by which he again gained access to the space in question.
“He asked to be permitted to go into this space on the 19th of September. It was arranged so that he might remove articles in the space, left there since the 11th of August, and to make a list of what was in there. Having obtained permission upon that limited request, having succeeded in luring the defendant to admit him to the space, and upon pretense of taking a list, there followed him into the space two high sounding titled gentlemen, each calling themselves a custodian of a court. They had not acted under any process of any court, they have no legal or official standing, and by the pretended use of a star which was exhibited and the euphonious title of custodian of a court, they confronted the manager of the building with the asserted right to stay there.
“That purpose was never revealed to the respondents here when permission was asked to go in there to remove such articles as he cared to belonging to him or for the purpose of making a list. It was clear deception, as clear as can be, as clear as crystal. And if the plaintiff Fisher seeks to pursue his rights in that fashion, by deception, trick or device, this Court can not be used by him to aid him, by means of contempt proceedings or punishment for contempt for alleged violation of this injunction.
“Had they been willing to give him possession and once having obtained possession the prohibitory part of the injunction could be enforced here, notwithstanding the appeal, but they at no time consented to give him possession, never intended to give it to him, and clearly throughout, their attitude and actions have indicated they have no desire to let him into possession there. That they were imposed upon is clearly shown here by the evidence and is as obvious as it can be, and no court of equity is going to be used, at least not this Court, in helping to carry out such deception.
“The dignity of the Court is to be maintained at all costs, and it is a matter clearly addressed to this Court and to its sound discretion as to whether these circumstances shown in this case are such as to affront the dignity of the Court.
“In issuing this injunction and in its purpose to sustain it, it is not a private matter for the litigants, it is the Court’s dignity that is claimed was offended, the dignity that accompanies the issuance of an injunction. This Court lacks no courage to enforce its own orders.
“The Court will not be a party to any such deception, trick or device. If this tenant thinks he is entitled to go in there by breaking locks and if he thinks the law supports him in that procedure, if he thinks he has a right to go into the space by force and possess himself that way and he cares to risk the results of it, that is his affair, something that this Court has nothing to do with.
“This defendant has clearly indicated it will not obey this injunction so far as the mandatory part is concerned, while the appeal is pending. If it cares to speculate on the result of an appeal the question will arise later as to whether they have violated the mandatory part of the injunction and what the penalty will be for that. That is their business, that is their affair. They have a right to the appeal, the appeal was taken and this Court is going to respect it.
“The rule to show cause will be discharged against all the respondents.”

The action of the trial court in discharging the rule against the respondents was fully justified by the evidence, and the strictures upon the conduct of Fisher, an attorney at law, by the trial court were certainly none too strong. It is not surprising that Chester Bowles, Administrator, etc., refused to join in the contempt proceedings and has not appealed from the instant judgment order. The defendant Michigan Square Building Corporation evicted Fisher from possession of the premises on August 11, 1945. The evidence clearly shows a brazen attempt by Fisher to evade the effect of the supersedeas in the original proceeding. He hired and paid men to impersonate court custodians; he obtained entrance to the premises by false pretenses. He introduced the said men as court custodians and, against the protests of the agents of the Building Corporation, he seized and retained possession of the premises practically by a display of force. That he should have the temerity, after bis lawless conduct, to bring contempt proceedings against the defendant corporation and its representatives, is hard to believe, especially in view of the fact that in the original proceedings he sought the aid of equity to restore to him possession of the premises and he obtained that aid. It is a reasonable assumption from the evidence that he commenced the instant contempt proceedings in order to forestall contempt proceedings against himself.

Fisher’s main point, as we understand it, is that the supersedeas in the original case did not stay or affect the “prohibitory provisions of Paragraph 2” of the permanent injunction; that all that he seeks is the enforcement of the prohibitory provisions of paragraph 2 of the permanent injunction, and that, despite the supersedeas, he “had the unrestricted right to reacquire sole and actual possession of his housing accommodations, either by the use of force or by peaceable means.” Paragraphs 2 and 3 of the judgfhent order in the original case read as follows:

“2. That the defendant, Michigan Square Building Corporation, its agents, servants, employees, attorneys and all other persons in active concert or participation with it be, and they are hereby, permanently enjoined from directly or indirectly evicting, threatening or attempting to evict by exclusion from possession, elimination or decrease of essential services, or otherwise the plaintiff, Thomas H. Fisher, tenant of the housing accommodations described as the north end of the tenth floor of the building known as the Michigan Square Building located at 540 North Michigan Avenue, Chicago, Illinois, in violation of or in any way contrary to the provisions of the Bent Regulation for Housing.
“3. The defendant,' Michigan Square Building Corporation, be and it is hereby ordered and directed forthwith to restore the above-named Thomas H. Fisher, tenant, to possession of the housing accommodations formerly occupied by said tenant as heretofore described and to restore all the property of said Thomas H. Fisher to said premises which said defendant has removed therefrom.”

When the judgment order in the original case was entered Fisher was not in possession of the premises. Paragraph 3 should have preceded paragraph 2 in the permanent injunction order, as the provisions of paragraph 2 would not become effective until the possession of the premises had been restored to Fisher. The injunction in the original suit was mandatory in character and its enforcement by contempt proceedings or any other proceedings was stayed by the perfected appeal, which operated as a supersedeas. We are unable to understand the argument that the provisions of paragraph 2 justified Fisher’s method of obtaining possession of the premises. His contention that in spite of the perfected appeal he had a right to seize possession of the premises by the use of force or by peaceable means, is without the slightest merit, and the cases cited by him in support of this contention have no application to the instant situation. His argument that to deny him that right would be to deny him the protection of the Emergency Price Control Act of 1942 as amended is more ingenious than persuasive. It is clear that the Administrator does not agree with this argument.

Fisher makes the surprising statement that “the Michigan Square Building Corporation, defendant appellee, as owner of the Michigan Square Building, was never in actual possession of the housing accommodations in this case.” In the original proceeding Fisher based his right of action upon the fact that the Michigan Square Building Corporation had obtained actual possession of the premises by evicting him, and the decree in the original case so found.

We find no merit in several other contentions raised by Fisher.

The judgment order of the Circuit court of Cook county is aErmed.

Judgment order affirmed.

Friend, P. J., and Sullivan, J., concur.