author: Mr. Presiding Justice Niemeyer

text:
    Alice Moran, Appellee, v. Charles Gatz, Appellant.
    Gen. No. 43,043.
    Opinion filed October 23, 1944.
    Released for publication November 6, 1944.
    Barrett, Barrett, Costello & Barrett, of Chicago, for appellant.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment of $5,000 entered in an action for personal injuries.

The accident in which plaintiff was injured occurred at the intersection of 115th street, which runs east and west, with Wentworth avenue, which runs north and south, about the hour of 9 o ’clock in the evening of March 7, 1942. There are no traffic lights or signs at the intersection. There is an ordinary street lamp at the southwest corner. On the southeast corner is a tavern which was lighted and had in front an illuminated beer sign. Plaintiff says the condition of the light at the corner was bright. There is a single street car track on 115th street used only for west bound cars. There are no tracks on Wentworth avenue. It had been raining, and there is a conflict in the evidence as to whether it was misting or raining at the time of the accident. Plaintiff, a pedestrian, had come from the east on the north side of 115th street to the northeast corner of the intersection, where she turned to cross in the east crosswalk to the southeast corner. Before leaving the curb she looked to the east and waited until cars coming from the east had passed. She looked west and saw two or three cars coming a block away — about Yale avenue. She started ahead, going south on-the crosswalk. When about three or four steps from the street car track she “partially” looked again and continued to walk normally to the south. When she was probably three or four feet from the south curbstone something hit her. She did not see the car before that time and no horn was blown. On cross-examination she testified that she took a glance and didn’t see any cars; that there was nothing to obstruct her view.

Defendant, whose wife was released from a hospital that morning, had taken her to the home of his son to convalesce and was returning alone to his own home at the time of the accident. He was driving an Oldsmobile Sports Coupe. He had had the car through the city testing lane the Saturday before the accident and no suggestion for repairs had been made. Before leaving his son’s home he had turned on the city driving lights, which illuminated the pavement ahead about 50 feet. These lights do not throw a light to the left of the car but do to the right. He approached Wentworth avenue on 115th street from the west. He was driving south of the street car track at about 20 miles an hour. When he got to Wentworth avenue he slowed down, shifted into low gear and while crossing the intersection shifted into second; as he approached the east walk he shifted into high and, as he was going ahead, saw the plaintiff right in front of the left headlight — mayhe a foot or two. He stepped on the brakes and the car stopped. Plaintiff’s husband operated a newsstand on the southwest corner of the intersection. This newsstand faced to the east. He was sitting or standing in front of the newsstand and facing to the east. He saw plaintiff start across the street from the northeast corner but did not recognize her until after the accident. When he first saw plaintiff there wasn’t any car in sight. He saw defendant’s car when it passed his newsstand going at a good moderate speed. Ho horn was blown and he couldn’t see any reflection of the lights, but wouldn’t say that they were not burning. He saw no other east bound cars than the one driven by defendant. He did not look at the lights after the accident and could not say whether or not the windshield wipers were working.

On the trial plaintiff withdrew the charge of excessive speed and in her brief here states that she brought her suit charging, that defendant u carelessly and negligently failed to give the right of way to the plaintiff while walking on the crosswalk.” Defendant’s principal contention is that the trial court should have directed a verdict for defendant for want of any evidence to support a verdict for the plaintiff upon either the issue of the plaintiff’s due care or the defendant’s negligence. Ho question is raised as to the amount of the damages.

The evidence most favorable to the plaintiff, with reasonable inferences to be drawn from it, is to the effect that' plaintiff, before leaving the curb on the northeast corner, looked to the west and saw two or three cars coining east about a block away; that she then started south on the crosswalk across 115th street; that when three or four steps from the street car track she again “partially” looked to the west, or glanced to the west, and did not see any car and proceeded across the street; that in the meantime defendant was approaching Wentworth avenue from the west, driving on the south side of. 115th street at a good moderate speed, with his city driving lights burning and illuminating the pavement ahead about 50 feet and with his windshield wipers going. The testimony of plaintiff’s husband that he couldn’t see any reflection of the lights but wouldn’t say that the lights were not burning, is without probative value.

Defendant contends that the case is clearly within the rule announced in Dee v. City of Peru, 343 Ill. 36, where the court said (42): “The law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger when the view was unobstructed and where, if he had properly exercised his sight, he would have seen it.” To the same effect are Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154; Seybold v. Zimmerman, 294 Ill. App. 138. Plaintiff contends that under the statute (ch. 95%, par. 171, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.203]) providing “Where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection,” plaintiff had the right of way at the intersection and therefore had the right to assume that defendant would not violate the law by failing to “yield the right-of-way, slowing down or stopping if need be to so yield,” to prevent injuring plaintiff, citing Thomas v. Buchanan, 357 Ill. 270; Ziraldo v. W. J. Lynch Co., 365 Ill. 197; Morrison v. Flowers, 308 Ill. 189; Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, 107; Roberts v. Cipfl, 313 Ill. App. 373; St. Clair Nat. Bank of Belleville v. Monaghan, 256 Ill. App. 471, 475; cases from other states and Berry on Antomobiles (7th ed.), vol. 3, pages 214 and 302; that having the right to rely on this assumption, contributory negligence on the part of the pedestrian is a question of fact for the jury.

In Good v. Behrendt, 321 Ill. App. 303 (abstract decision), we held that plaintiff was guilty of contributory negligence as a matter of law where it appeared that plaintiff started to cross the street after seeing defendant’s automobile approaching at least a block away. In that case plaintiff did not claim to have looked toward the approaching cars after leaving the curb. Plaintiff’s right of way did not relieve her of the obligation to exercise due care for her own safety. In Thrapp v. Meyers, 114 Neb. 689, the court in speaking of an automobile driver having the right of way of traffic approaching on his left, said (694): . . but (he) is not thereby relieved from the duty of exercising ordinary care to avoid accidents; therefore, if a situation is presented which, to an ordinarily prudent person in the position of the driver, would probably result in a collision if he exercised his technical right of way, it would be his duty to subordinate such right to the public safety.” In Hooper v. Corliss, 146 Wash. 50, 54, it was held that “the right of way given by the city ordinance is a relative right only, and does not justify one who is entitled to the right of way in asserting his rights, when, by the exercise of due care, he can or should see that to do so is likely to cause an accident and injury to himself or another, and that one so insisting upon the exercise of his right of way, under circumstances which would cause a reasonably prudent person not to do so, is guilty of negligence of contributory negligence, as the case may be.” The holding in Illinois is to the same effect. In Thomas v. Buchanan, 357 Ill. 270, cited by plaintiff, the court said (277): “Anderson (driver of the car in which plaintiff’s deceased was riding) was familiar with Crawford avenue and knew that the one caution sign and the two stop signs were there, and while under ordinary conditions he had the right of way over the automobile of the defendant, yet that did not of itself relieve him or the deceased from the exercise of due care and caution on their respective parts.” The court then says that Anderson and the deceased had the right to assume that the defendant would not negligently fail to give preference of the right of way to Anderson, if necessary for the safety of the occupants of the car, and cites among other cases Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, where the defendant in an action for personal injuries sought to excuse the negligence charged against it by claiming that it had the right to rely upon the presumption that the Grand Trunk Railway, whose engine collided with defendant’s interurban car, causing plaintiff’s injuries, would not violate the law. The court said (159): “There is a presumption of law that every person will perform the duty enjoined by law or imposed by contract, and anticipation of negligence in others is not a duty which the law imposes. (Chicago, Burlington and Quincy Railroad Co. v. Gunderson, 174 Ill. 495; Chicago City Railway Co. v. Fennimore, 199 id. 9.) While that statement has often been made and the presumption is to have due weight in determining questions of negligence, it is manifest that the presumption is not a conclusive one and that no one has a right to rely solely upon it in regulating his own conduct. The presumption does not absolve one from exercising such care and prudence as a reasonably prudent person ivould under the same circumstances, nor relieve a carrier of passengers from the duty of exercising that degree of care demanded by the law in view of the circumstances and surroundings. One- who has an unobstructed view of an approaching train would not be justified in closing his eyes and crossing a railroad track in reliance upon the presumption that a bell would be rung or a whistle sounded. No one can assume that there will not be violations of the law or negligence' of others and offer the presumption as an excuse of failure to exercise care.”

.It will be conceded, as plaintiff contends, that there is a difference between a railroad crossing and a street intersection and in the degree of care required at the respective places. However, both are dangerous places, and the crossing of the street at a city intersection may be more dangerous than the crossing of railroad tracks. The intersection in question is not shown to be unusually hazardous. However, it is an intersection where the frequent passing of automobiles was to be expected and, applying the rule of the Schlauder case the plaintiff, having an unobstructed view, would not be justified in closing her eyes or crossing the street with utter indifference to approaching automobiles. Here the evidence shows that plaintiff knew when she left the curb that automobiles were approaching from the west. No car is shown to have- crossed Wentworth from the west ahead of defendant’s car. Lights which will illuminate the pavement 50 feet ahead of the car can readily be seen for a half block or more. Before crossing the street car track and getting to the south side of 115th street plaintiff looked to the west and, therefore, under the authorities cited above, must be held to have seen — what she could have readily seen — defendant’s approaching car. She ignored it and in a normal walk placed herself in its path. This was contributory negligence as a matter of law. Good v. Behrendt, 321 Ill. App. 303; Russell v. Richardson, 308 Ill. App. 11; Weiner v. Kjelstad, 314 Ill. App. 671 (Abst.); Soic v. Richardson, 315 Ill. App. 213 (Abst.). This conclusion makes it unnecessary to consider the other questions raised by defendant except to say that we do not consider the points made grounds for reversal of the judgment.

The judgment of the trial court is reversed.

Reversed.

Hatchett and O’Connor, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People ex rel. Olga (Hamilton) Bowdry, for and on Behalf of Doloris Ann Bowdry, Minor, Appellant, v. Matthew Bowdry et al., Appellees.
    Gen. No. 43,101.

      Opinion filed October 23, 1944.
    Released for publication November 6, 1944.
    Braden, Hall, Barnes & Blakey, of Chicago, for appellant; Zedrick T. Braden and Eugene M. Jones, both of Chicago, of counsel.
    Joseph Granick, of Chicago, for appellees.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Relator appeals from an order entered November 26, 1943 dismissing her petition for a writ of habeas corpus to determine the custody of her child, Doloris Ann Bowdry, about five years of age, then in the custody of the respondents, Gracey S. Pollard and Mary Pollard, his wife, under a decree of adoption entered in the county court of Cook county July 22, 1942 with the consent of Matthew Bowdry, father of the child.

The abstract of record not being in the form required by our rules, it has been necessary to refer to the record, which shows that on June 24, 1942 Gracey S. Pollard and Mary, his wife, filed their petition of adoption alleging that the petitioner Mary Pollard is the grandmother of Doloris Ann Bowdry and, with her husband, has had the sole care, custody and control of Doloris since November 1939; “that said Olga Bowdry, the mother, wilfully deserted and abandoned said child and disappeared,” and that Matthew Bowdry, the father, has entered his appearanee and consented to the adoption of Doloris by petitioners. On the same day summons was issued, returnable July 22, 1942, and returned not served as to relator Olga Bowdry. Service by publication was then had as to her and her last named place of residence given as 4232 South Parkway, Chicago, Illinois. On July 22, 1942 the default of relator was taken, evidence heard and decree of adoption entered finding “that the cause of the adoption of the said child is that the mother, Olga Bowdry, also known as Olga Hamilton, has abandoned said child, and the father has consented to the adoption of said child by the petitioners.” August 6, 1942 relator filed her petition for habeas corpus, but before action was taken thereon she on August 12 filed her petition in the county court to vacate the decree of adoption, alleging that she had never wilfully deserted or abandoned Doloris, that she had never been served with any summons in the adoption proceeding and had never lived at 4232 South Parkway, Chicago, and that her address and whereabouts were known to the petitioners in the adoption proceeding. August 26, 1942 her general appearance was entered in the adoption proceeding and thereafter, on November 10, the court “after hearing all the evidence adduced and the arguments of counsel,” denied relator’s motion to vacate the decree of adoption. More than a year later a hearing was had on the petition for writ of habeas corpus and the petition denied.

Relator contends that the county court was without jurisdiction of the statutory proceeding for adoption because jurisdiction of her person was not acquired in the manner prescribed by the statute and because the petition and decree were defective in failing to allege and find that relator had abandoned the child Doloris “for more than six months next preceding the filing of the petition.” Whatever may have been originally the merits of relator’s contention of want of jurisdiction of her person in the adoption proceedings, such want of jurisdiction was waived by filing her general appearance and submitting to the court the question of her abandonment of the child Doloris. MacKensie v. MacKensie, 238 Ill. 616; People ex rel. Rea v. Cairo, V. & C. R. Co., 243 Ill. 217; Freise v. Mid-City Trust & Savings Bank, 298 Ill. App. 17.

Since 1907 the statute relating to adoption has prescribed among the grounds of unfitness of a parent justifying adoption without the parent’s consent “,(e) abandonment of the child, or (f) desertion of the child for more than six months next preceding the filing of the petition.” Under the former statute, which required that the court must be “satisfied that the parents of the child or the survivor of them has deserted his or her family, or such child, for the space of one year next preceding the application,” it was held that a petition merely alleging that the mother had deserted the child was not sufficient to give the court jurisdiction to enter the decree. Watts v. Dull, 184 Ill. 86, 94, 95. Relator contends that under the present statute. abandonment of the child, like desertion, must be for more than six months next preceding the filing of the petition to give the court jurisdiction and relies upon the case of People ex rel. Frentz v. Frentz, 256 Ill. App. 259, which like the present case, was a habeas corpus proceeding for the custody of the child. In that case the petition, after alleging that the mother of the child was dead, charged “that for a period of three years he (the father) abandoned and neither supported nor cared for her (the child) in any way.” In the opinion of the court Mr¡ Justice Holdom said (267): “Such averments do not conform to any of the provisions of section 3, supra. That section provides that the unfitness of the parents or surviving parent must be: . . . abandonment of the child or desertion of the child for a period of six months next preceding the filing of the petition. It is apparent from the petition that its averments do not fulfill the requirements of the statute.” The other judges of the court did not agree with this statement and it is not the law of the case. Mr. Justice Ryneb, specially concurring in the reversal of the judgment of the trial court denying the petition, said (271): “I do not, however, concur in the view that abandonment as a ground for adoption, under the statute, must be for a period of more than six months next preceding the filing of the petition for adoption. In dealing with the subject of ■abandonment of property the Supreme Court of this State, in the case of Burns v. Curran, 275 Ill. 448, said: ‘The question of abandonment is one of intention, to be determined from the evidence, and there is no abandonment unless the premises are left with an intention of not again resuming possession.’ The natural interpretation of the adoption statute makes it accord with the principle of law announced by the Supreme Court.- The element of time is a factor to be considered in determining whether there has been an abandonment of property or. children, but it is not controlling.” Mr. Presiding Justice.Wilson, dissenting, said (273): “The decree of adoption introduced in the habeas corpus proceeding found that the court had jurisdiction of the subject-matter and of the person and set forth in extenso all the facts necessary to sustain that proposition. It contained a finding that the father of the child abandoned said child for about two years. Abandonment need not necessarily be continuing, but may be. Desertion may continue after abandonment, but the words, ‘for about two years’ following the word, ‘abandoned’ in the clecree is surplusage and mere irregularity.” In the more recent case of In re Petition of Ekendahl v. Topol, 321 Ill. App. 457, decided by the third division of this court, the mother of the child, seeking to set aside an adoption decree, contended that the decree was void for want of findings that the abandonment was for a period of six months next preceding the filing of the petition. The court (p. 463) overruled this contention with the statement that “There is no such requirement in the Act.” In speaking of the term “abandonment” as used in statutes relating to adoption, 1 Am. Jur., Adoption of Children, § 42, says: “Abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental .claims to the child.” When the statute was amended in 1907, desertion was already a cause for adoption. This was retained, although the length of the desertion was reduced from one year to six months. Abandonment of the child was added as an additional ground of unfitness of the parent. Time is not an element of abandonment, except as it may be evidence of the intention to abandon, and we concur in the holding of the third division of this court that the abandonment, unlike desertion, need not be continuing for more than six months next preceding the filing of the petition.

The county court, therefore, had jurisdiction in the adoption proceeding, and the order denying the petition for a writ of habeas corpus is affirmed.

Order affirmed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    In re Estate of Barbara Paus, Deceased. Barbara Meyers et al., Appellants, v. Fanny Fraser, Administratrix of Estate of Barbara Paus, Deceased, et al., Appellees.
    Gen. No. 43,083.
    Opinion filed October 23, 1944.
    Released for publication November 6, 1944.

      Maurice T. Weinshenk and Harry W. Standidge, of Chicago, for appellants.
    Tatge & Tatge, Campbell, Clithero & Fischer, and Robert F. Kolb, all of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal from the circuit court of Cook county is here by transfer from the Supreme Court. ' (In re Estate of Paus, 385 Ill. 550.) It was heard in the circuit court on appeal from the probate court. The matter began in that court through the filing of a petition by Barbara Meyers and Frank and William Haberzetle, praying that they might be declared to be heirs-at-law and next of kin of the deceased. Their petition was referred. The referee reported that they were strangers to the blood of Barbara Pans and recommended the petition be stricken. It was so ordered by the probate court on March 22, 1943.

The petitioners filed an amended petition April 7, 1943, but no hearing was held thereon in the probate court. An appeal from the probate court to the circuit court was perfected from the- order of March 22 on April 9, 1943. The transcript filed in the circuit court included only the original petition and the orders and proceedings under it.

In the circuit court the administratrix moved to dismiss the appeal -on the grounds petitioners were strangers to the blood of Barbara Pans and therefore' had no interest in her estate. The motion was sustained and an order dismissing their petition entered June 11, 1943. The motion called attention to the amended petition filed in the probate court and also that an additional transcript filed in the circuit court disclosed this petition. On April 25, 1944, the circuit court, after hearing, denied the motion of petitioners to vacate the order of June 11 and also the order of June 25. Petitioners appealed from both orders to the Supreme Court on the theory that constitutional questions were involved. The Supreme Court transferred the appeals to this court, delivering an opinion to the effect that no questions under either State or National constitutions were involved, as was argued in the briefs of petitioners. No further briefs were filed in this court. The parties were, however, heard at length on oral argument. The report of the referee of the probate court does not appear in the record.

Constitutional points have thus been eliminated. The sole question before this court is whether the circuit court erred in holding petitioners were not heirs-at-law of Barbara Pans and in dismissing their appeals because they were without interest in the subject matter of the litigation.

It is not questioned that petitioners in the circuit court were entitled to a trial de novo of the issues. People v. Whealan, 353 Ill. 500; In re Estate of Turner, 275 Ill. App. 366. However, the material facts are stated in the petitions and are not denied. There is, we think, merit to the contention of the estate that by appealing from the order entered on the first petition any right to a hearing on the second was waived. McCoy v. Acme Automatic Printing Co., 278 Ill. 276; Marks v. Pope, 370 Ill. 597, 598.

The question of whether petitioners are heirs-at-law and next of kin of the deceased depends wholly on the construction of the Statute of Descents and Distributions. Ill. Rev. Stat. 1943, ch. 3, Art. II, § 11 [par. 162], pp. 44, 45 [Jones Ill. Stats. Ann. 110.258]; Campbell v. McLain, 318 Ill. 610; Hardesty v. Mitchell, 302 Ill. 369; Russell v. Bulliner, 370 Ill. 260. The statute controls. The ideas of either court or counsel as to who should take is not determinative. Wall v. Pfanschmidt, 265 Ill. 180, 193. Except in the case of husband or wife, or of adoption, as provided by statute, persons other than relatives of the blood are not heirs of the other sponse. 26 C. J. S. §20, p. 1027, § 38, p. 1043.

The facts averred in the petition are stated in an argumentative way, which renders them somewhat obscure. We gather therefrom that the name of the deceased was Barbara Grotenhus; that her father died in her early childhood; that her mother was remarried to Ignatz Paus, whose surname the deceased assumed and was thereafter known as Barbara Paus; that of the marriage between Ignatz Paus and the mother of Barbara Paus a son, Charles Paus, was born; that the mother of Barbara died first, then secondly Ignatz Paus died, then thirdly Charles Paus, and fourthly Barbara Paus; that no property descended to Barbara Paus from her mother, but Barbara Paus received from her stepfather, Ignatz Paus, and from Charles Paus, who was her half-brother, some property.

Petitioners aver they are the children of a sister of Ignatz Paus, who was the stepfather of Barbara Grotenhus Paus, and that therefore they are heirs and next of kin of the deceased. They argue this from the statute which provides: “In no case is there any distinction between the kindred of the whole and the half blood.”

We find nothing in the statute to justify the construction contended for. Five paragraphs of the statute designate persons who shall take by descent from a deceased person. The provision that distinction “in no case” shall be made between the whole and half blood does not create another class of persons who will take but forbids distinction between the whole and half blood in the case of the persons named who are to take. The rule of the feudal law excluded from the inheritance descendants who were of the half blood. The rule never found favor in this country. The statute therefore expressly repeals that rule.' This comes far short of creating another class of persons who are to take and who are not of the blood of the deceased at all. Petitioners’ contention is without merit. They have no standing to make their claim. There is a fundamental distinction between persons who are of the half blood and those without inheritable blood at all.

The judgment of the circuit court will be affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Mary Hirshberg, Appellee, v. Walter J. Cummings et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,050.

      Opinion filed October 23, 1944.
    Released for publication November 6, 1944.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel.
    Sher & Karlin, of Chicago, for appellee; Leo S. Karlin, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries sustained by her as a result of the claimed negligence of defendants’ motorman in the operation of a street car in which plaintiff was a passenger. There was a jury trial, a verdict and judgment of $5,000 and defendants appeal.

The record discloses that about 10 minutes, to 9 on the morning of December 2, 1940, plaintiff, a woman about 55 years of age, boarded one of defendants’ street cars which was being operated in a southwesterly direction on 5th avenue, Chicago. She entered at the front of the car, walked back to the middle where she paid the conductor her fare and before she had time to be seated, the car suddenly stopped, causing her to be thrown to the floor and severely injured. The motorman and the conductor helped her up, the conductor procured a taxicab nearby and went with her to her home.

Defendant's contend that the court should have directed a verdict in their favor at the close of all the evidence and that after the verdict their motion for a judgment notwithstanding the verdict should have been sustained for the reason that defendants were not liable as a matter of law and that the judgment should be reversed without remandment. Their further position is that if the court does not agree with them then the judgment should be reversed and the cause remanded for the reason that the verdict is contrary to the manifest weight of the evidence.

The evidence is uncontradicted. Defendants operate a double line of street cars on 5th avenue which runs northeast and southwest. On the morning in question plaintiff boarded one of defendants’ southwestbound street cars at St. Louis avenue entering the car at the front. As she was paying her fare to the conductor, who was standing at his proper place in about the middle of the car, and after the car had proceeded less than a block, an automobile truck backed out of a north and south alley from the northerly side of 5th avenue in front of the street car which caused the motorman to suddenly stop the car to prevent a collision between the two vehicles, as a result of which plaintiff was thrown to the floor of the car and’ severely injured.

The motorman testified that he had been employed as a motorman for 26 years; that at the time in question he was operating one of the new type streamliner cars southwesterly on 5th avenue; that as he approached St. Louis avenue, a north and south street, he stopped the car and plaintiff entered at the proper place, the front door; that he then started the car in the ordinary way and got up a speed of about 25 miles an hour; that “A truck backed out of the alley on the north side of the street;” that on the east side of the alley there was a large apartment building four stories high which extended to the sidewalk line; that he saw the truck when he was about 45 to 50 feet east of the alley; that he sounded his gong and threw on the brakes; that the truck was backing out at about 8 miles an hour; that he stopped the street car as quickly as possible; that “When my car came to a standstill, the truck was on the west track with the tail end of it on the east track. I brought my car to a standstill about four or five feet from the truck. . . . The truck backed diagonally out onto the east bound track. He was turning to go west.” That the lady fell as he stopped the street car; that the truck drove away and the car proceeded about 4 blocks when plaintiff was assisted from the street car into a taxicab. On cross-examination he testified that from his position in the street car he had a clear view in front of the car; that the truck “was a dark green truck, about a three ton truck, a panel closed truck.” That he did not see any writing or signs on the truck. “I took the name and address of the driver and the license as he pulled away. I don’t remember that I turned it in.” That after he stopped the street car the truck turned and went west. “I took the license number of the truck as it turned. I copied that license number but I don’t remember if I got it right, it was dirty. I don’t remember if I turned it in.” That he had been operating street cars on 5th avenue for about 4 years; that he saw the tail end of the truck backing out of the alley when he was from 45 to 50 feet away; that the street car traveled about 4. blocks before plaintiff was assisted from it, at which time the conductor went around the corner and got a yellow taxicab; that he thought the sidewalk on the north side of 5th avenue at the alley was about 12 feet wide and from the curbstone to the first rail of the street car track was about 12 feet.

David L. Dobbs, called by defendants, who was the only other passenger on the street car, testified that plaintiff boarded the street car at St. Louis avenue; that at the time he was reading his paper, heard the . clanging of the bell, glanced up and saw the truck; the car stopped and plaintiff was thrown forward toward the front of the car; that the truck was practically on the track when he first saw it and was on the track when the street car stopped; that he gave his name to the street car conductor. On cross-examination he testified that: “It was a dark truck. It was quite a large truck. It was an open truck. ’ ’ That a tarpaulin was on it.

The street car conductor, called by defendants, testified that he had been employed by the street car company for 29 years; that after plaintiff boarded the car he heard the sound of the gong and the motorman applying the brakes; that he saw a dark truck backing out of the alley which was the reason for the street car stopping; that after plaintiff fell, the car proceeded about 4 blocks; that he and the motorman assisted plaintiff from the car and the witness hailed a taxicab and went to plaintiff’s home in the cab with her. She lived at a hotel; that he did not get a good look at the truck but it was a dark colored truck and that after the accident the truck drove away. This is substantially all the evidence as to how the accident occurred.

Upon a careful consideration of all the evidence we are of opinion that all reasonable minds would not reach the conclusion that there was no negligence on the part of the motorman and in such a situation the question of negligence is one of fact for the jury. Louthan v. Chicago City Ry. Co., 198 Ill. App. 329; Bale v. Chicago Junction Ry. Co., 259 Ill. 476; Kelly v. Chicago City Ry. Co., 283 Ill. 640. The jury had a right to weigh the testimony of the motorman and of the other witnesses. According to the evidence the distance from the building on the northerly side of the street east of the alley to the first rail of the southwesterly street car track was about 24 feet. And while the truck was backing this distance it was seen by the motorman. Furthermore, the evidence is to the effect that plaintiff was apparently severely injured. She had to be taken from the street car in a taxicab to her home and yet the motorman testified that he did’ not think he made a report of the accident to his employer. The jury found in favor of plaintiff and their finding was approved by the trial judge, and in these circumstances, upon a consideration of all the evidence, we are unable to say that the verdict of the jury, approved as it was by the court, is so manifestly against the weight of the evidence as to warrant interference on our part.

Defendants further contend that the court erred’ in giving plaintiff’s instructions 1 and 8. Instruction 1 defined the duty of the defendant street car company as a common carrier and told the jury that while the carrier was not an insurer of the absolute safety of the passengers, “it does, however, in legal contemplation, undertake to exercise the highest degree of care, as herein defined, to secure the safety of the passenger and is responsible for the slightest neglect resulting in injury to the passenger” etc. This instruction has been criticized in many cases for telling the jury that the defendant was responsible for the “slightest negligence.” In Elmore v. Cummings, 321 Ill. App. 234, we reviewed the authorities on this question and said that the words “slightest negligence” ought not to be given in any case. But the judgment in that case was not reversed solely for the giving of that instruction. We adhere to what we there said. In that case the testimony of the witnesses as to how the accident occurred was in sharp conflict while in the instant case there is no conflict in the evidence as to how plaintiff: was thrown and injured. In view of all the evidence we think the instruction ought not to have been given but that it is not reversibly erroneous.

By Instruction 8 the jury were told that “in passing upon the testimony of all the witnesses who have testified in this case, you have the right to take into consideration any interest which said witnesses may feel growing out of their relation to either of the parties to this suit, as employes or otherwise, if any such is shown, and give to the testimony such weight only as you think it entitled to' under the evidence in this case.” We think this instruction was not improper. The jury had a right to consider, in weighing the testimony of the motorman, that if there was a verdict in plaintiff’s favor, the motorman would be to blame. Obviously we do not imply that he was not telling the absolute truth but this was a question for the jury.

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

Judgment affirmed.

Niemeyer, P. J., and Hatchett, J., concur.


text:
    People of State of Illinois, Appellee, v. Huston R. Booth, Appellant.
    Gen. No. 43,068.
    Opinion filed October 23, 1944.
    Rehearing denied November 6, 1944. Released for publication November 6, 1944.
    Laurence M. Fine, of Chicago, for appellant.

      Thomas J. Courtney, State’s Attorney, for appellee; Thomas P. Grant and John T. Gallagher, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court. ;

An information was filed by leave of court against the defendant, Huston R. Booth, charging that without reasonable cause, he neglected and refused to maintain and provide for his daughter, Catherine, who was under the age of 18 years, and was then in destitute and necessitous circumstances. Afterward the cause was called for trial, the defendant, represented by counsel, entered a plea of not guilty and waived a jury, the court heard the evidence, found the defendant guilty as charged in the information of the “offense of neglecting to support his child in destitute circumstancés” and he was ordered to pay $65 per month to Mabel Flick, who filed the information, for the use of the daughter, Catherine, for one year. Defendant appeals.

The substance of the evidence is that defendant, who was the father of Catherine, is an optometrist practicing his profession in Chicago since 1914. He and his wife were divorced while Catherine was a small child. At the time of the trial she was 15 years old. The mother remarried and died in December 1942. Counsel for defendant contend that the evidence shows that Catherine’s mother left a substantial estate to her and that “defendant’s income from his profession averages $135 per month out of which he contributed to Catherine’s maintenance and support approximately $90 per month for the year 1942 and about $60 per month for the year 1943, ’ ’ until the time of his arrest in the instant case and that he bought Catherine a suit for $40 and a pair of shoes for $12, had her placed in a private school “but fell behind in tuition, also fell behind in her board bill.”

, The evidence is further to the effect that Catherine’s mother left an estate which went to Catherine and was being probated in the Probate court of Cook county. That Mrs. Mabel Flick, who filed the information is the guardian of the estate of Catherine and that Catherine was living at Mrs. Flick’s home; that Mrs. Flick was furnishing funds for supplying Catherine with food, shelter and clothing and that the defendant father had contributed nothing for the support of Catherine since April 1,1943, at which time Mrs. Flick took Catherine into her home.

The monthly gross rental of the property left to Catherine by her mother was $112.50, the improvements were dilapidated, required extensive repairs, one parcel of real estate was mortgaged for $1,500, of which $100 had to be paid yearly, and the net income from all the property would probably not exceed $400 per year.

The first point made by counsel for defendant in his brief is that “Upon conviction of the charge of contributing to the dependency and neglect of children under the statute an order imposing neither a fine nor imprisonment is erroneous,” and paragraph 101 of chapter 38 of the Illinois Revised Statute of 1943 [Jones Ill. Stats. Ann. 37.085] is cited. Counsel for the People say that the proceeding in the instant case is not based on the statute as contended for by counsel for defendant but the authority for the judgment in the instant case is found in paragraphs 24 and 27, chapter 68, Illinois Revised Statutes 1943 [Jones Ill. Stats. Ann. 37.002, 37.005]. We think this contention must be sustained. The statute relied upon by counsel for defendant has to do with the punishment of a parent, etc., for contributing to the delinquency of a child while paragraphs 24 and 27 referred to by counsel for the People have to do with a parent’s negligence in supporting the child.

Paragraph 24 provides: “any person who shall, without lawful excuse, desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of eighteen years, in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor and on conviction thereof shall he punished by a fine of not to exceed six hundred dollars or by imprisonment in the county jail, or house of correction or workhouse, not to exceed one year, or by both such fine and imprisonment.” And paragraph 25 [Jones Ill. Stats. Ann. 37.003] provides that proceedings under paragraph 24 may he by indictment or information. By paragraph 27 it is provided that in the trial of such a case “after conviction, instead of imposing the penalty provided in this act, or in addition thereto the court in its discretion, having regard to the circumstances, and to the financial ability or .earning capacity of the defendant, shall have the power to make an order, . . . [which may be changed from time to time by the court] directing the defendant to pay a certain sum periodically for a term not exceeding one year, ... to the guardian or custodian of said minor child . . . or to an organization or individual approved by the court as trustee.” This section authorized the court to enter the order or judgment requiring defendant to pay $65 per month for the support of Catherine. We think the evidence clearly shows that the daughter was in “necessitous circumstances” and that the defendant was able to pay.

The point made by counsel for the People, that the appeal should be dismissed for the reason that it was not perfected in accordance with the requirements of the statute, ought not to have been made by counsel for the reason that before the brief on behalf of the People was filed, counsel for both parties appeared before the court and it was agreed that the motion theretofore made by the People to dismiss the appeal should be withdrawn and at the time, June 20, 1944, we entered an order on motion of the State’s Attorney made in open court allowing his motion to withdraw the motion to dismiss.

The judgment of the Municipal court of Chicago is affirmed.

Judgment affirmed.

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


text:
    Reconstruction Finance Corporation, Appellee, v. City of Calumet City, Appellant.
    Gen. No. 43,074.

      Opinion filed October 23, 1944.
    Rehearing denied November 6, 1944. Released for publication November 6, 1944.
    John E. Pavlik and Franklin J. Stransky, both of Chicago, for appellant; Franklin J. Stransky, of Chicago, of counsel.
    Leonard C. Mead, Howard B. Bryant, Lee Walker, M. O. Hoel and Willard Balhatchet, all of Chicago, for appellee; Tolman & Megan, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendant seeks to reverse a decree entered by the Superior court of Cook county, finding that defendant had wrongfully diverted special assessment funds which had been collected by it to pay special assessment bonds and coupons but all of which had not been so used.

December 2, 1936, plaintiff filed its 38 page complaint in equity against defendant to recover the amount plaintiff claimed defendant City had diverted from special assessment funds, plaintiff owning a number of such bonds and coupons. The prayer was for an accounting and a decree for the amount found to be due plaintiff. There was also a prayer for general relief. January 6, 1937, defendant City filed its answer of two pages in which it admitted substantially all of the allegations of the complaint but averred that on April 16, 1935, an election was held in the defendant City and new officials were elected who qualified- and were now administering the affairs of the City; that they had no knowledge as to other allegations of the complaint and called for strict proof. That the books and records relating to the special assessments in question were available for inspection by plaintiff and the public.

October 29, 1937, on motion of attorney for plaintiff, an order was entered referring the cause to a master in chancery to take the evidence and make up his report. Nothing further appears in the record until June 2, 1939, when an order was entered on motion of plaintiff, granting plaintiff leave to file an amended and supplemental complaint without prejudice to the reference, and it was further ordered that the answer of defendant stand as the answer to the amended and supplemental complaint. On the same date plaintiff filed an amended and supplemental complaint of 40 pages. Nothing further appears until nearly 4 years thereafter, when on April 30, 1943, an order was entered on the stipulation of the parties whereby defendant was given leave to withdraw its answer and to file instanter in lieu thereof, defendant’s motion to dismiss the amended and supplemental complaint and its substituted answer to the amended and supplemental complaint, all without prejudice to the order of reference. On the same date, defendant filed its motion to dismiss the amended and supplemental complaint specifying as grounds that plaintiff failed to comply with the provisions of Section 22 of the Civil Practice Act'[Ill. Rev. Stat. 1943, ch. 110, par. 146; Jones Ill. Stats. Ann. 104.022], and in the following particulars: (a) that complainant sought an accounting of special assessment moneys based on-its alleged ownership of certain special assessment bonds; (b) that such bonds were not negotiable .but merely choses in action; (c) that the bonds in suit were not originally issued to plaintiff but that plaintiff was merely the assignee of some of the bonds; (d) that the complaint failed to set forth how and when plaintiff acquired title to the bonds. Attached to the motion was defendant’s substituted answer of 3 pages to the supplemental complaint, in which the allegations of a number of the paragraphs of the complaint were admitted and a number of others denied. And continuing, it was averred that the contracts for the improvements were let and the assessment bonds issued to the persons on the dates, and in the amounts shown on the schedule attached as part of the answer; that payments were made on the bonds in the amounts on the dates and to the persons shown in another schedule attached and made a part of the answer and that defendant had not been notified of any assignment of the bonds and denied that plaintiff was the owner of any of the bonds prior to the time, of the maturity of them or prior to the time the payments, shown on the schedule, were made on the respective bonds or at any time thereafter. That a complete record of all moneys collected on the several installments of the assessments is shown on another schedule attached to and made a part of the answer.

It was further averred that ho part of the assessment fund was diverted by the defendant City to its own use and benefit and that any failure to apportion and pay to the owners of the bonds sued on was due to improper administration on the part of persons charged by law with the collection and disbursement of such funds. That there were no funds remaining. in the various installments in suit; that defendant was not liable to plaintiff for any irregularity in the collection or disbursement of the funds; that the duty of collecting and disbursing the funds was imposed upon certain officials who were required to put up surety bonds before entering upon their duties, conditioned upon the faithful performance of their duties; that such bonds were posted by the individuals and that any liability for any irregularity in administrating the funds was the obligation of such officials and their sureties; that the plaintiff had a cause of action against any person who may have received preferential payments; that the records of the collection and disbursements of special assessment funds were available for inspection and that plaintiff knew or could have known of any diversion or any irregularities; that the bonds in suit were not negotiable.

It was further averred that two schedules attached to the answer and made a part of' it show “the pro rata portion of collections due on the bonds sued upon after deducting payments previously made upon the respective bonds. ’ ’ As alleged in the answer three detailed schedules prepared by defendant City are attached showing the date of the contract, to whom let, the amount to be paid, the contractor, the number and amount of each installment, the collections and payments, etc., etc. It is further shown from these schedules that plaintiff, the Reconstruction Finance Corporation, is the owner of the bonds in suit and detailed statements of each bond and the installments and to whom prior payments were made.

October 21, 1943, the decree appealed from was entered, in which the motion of defendant to strike the supplemental complaint was denied and the motion of plaintiff to strike certain parts of defendant’s answer, was sustained. The decree was entered on the pleadings and stipulation of the parties. It was stipulated that: “the figures and amounts of interest collected by the defendant, The City of Calumet City, allocable to each bond and the amounts shown as over payments on certain coupons, for which the defendant, The City of Calumet City is given credit, as they appear in the decree, agree with the books and records of Calumet City.” In the decree the chancellor found that plaintiff was the holder for value of the bonds in suit; “that all of said bonds and coupons so owned by said plaintiff have been presented for payment at maturity and from time to time thereafter; and that said bonds were respectively acquired by the plaintiff for a valuable consideration; that the following is a list of said bonds so owned by said plaintiffs, together with the name of said plaintiff so owning said bonds.” Then follows a description of the bonds in suit.

The court further found that all the bonds were “lawfully issued and duly assigned to the plaintiff for a valuable consideration; that the bonds owned by the plaintiff were presented upon the due date to the City, of Calumet City for payment and that payment was demanded from time to time, and that whatever payments were made upon either principal or interest upon said bonds were endorsed upon said bonds and coupons as credits thereon.” It was further found that the City had collected certain sums under the assessment proceedings, the moneys of which were applicable to the several installments involved in this suit but “instead of applying the funds to the payment of the bonds held by plaintiffs” this was not done and certain moneys collected by defendant and payable to plaintiff upon the bonds in suit had not been so applied on account of the “failure of the city and its officials to make prompt pro rata payments of the special assessment funds as they were collected, as required by law,” as a result of which plaintiff was not paid the amount due it. The court then finds detailed statements showing the moneys collected and disbursements made in the several assessments. And it was decreed that plaintiff recover from the defendant $28,883.55 and further decreed that the balance due on the bonds should remain an outstanding obligation over and above the amount found due by the decree and that the amount of the judgment should be endorsed on the respective bonds.

It was further adjudged and decreed that the defendant City “through its proper officials, shall appropriate and levy such necessary sums of money for the specific purpose of paying the amount so found to be due and owing from said City of Calumet City to said plaintiff at the next general tax levy so far as legally authorized, said amount so appropriated and levied being in addition to the amount required for actual necessary corporate purposes” until such amounts were sufficient to pay the amount found due by the decree.

January 18,1944, defendant filed its notice of appeal and praecipe for record and March 16, 1944, there appears in the record what is designated “Report of Proceedings” which is a certificate by the trial judge made on March 16, 1944, in which he certifies that “regardless of any recitals in said decree which might indicate the contrary, no evidence was introduced at said hearing by either of the parties.”

The liability of defendant is predicated on the fact that the special assessment fund was not properly applied pro rata to the payment of the bonds and therefore defendant City is liable for money collected and interest on such amounts as were diverted from the time the moneys were received, at 5% per annum. Conway v. City of Chicago, 237 Ill. 128; Rothschild v. Village of Calumet Park, 350 Ill. 330. In the latter case the court said: * ‘ The suit is brought to enforce its [the Village] liability, as trustee, to pay to the holders of the bonds the money which it received for that purpose, and it is the same, in effect, as an action of assumpsit for money had and received. Interest is allowed in such actions, under section 2 of the Interest act, on money had and received to the use of another and retained without the owner’s knowledge. The plaintiff in error was properly charged with interest on the amount received which should have been paid to the defendant in error. ’ ’ In such case plaintiff can recover his proportionate share of the amounts wrongfully diverted with interest thereon at 5% per annum from the due date- of the bonds and coupons, where the diversion is made before the due dates, but if the diversion is made after the due dates, then from the dates of the diversion. In the instant case, as we understand the record and the argument of counsel for defendant, this method was not followed.

There is no merit in defendant’s contention that there was no allegation in the complaint as to how and when plaintiff became the owner of the bonds in suit, as required by Section 22 of the Civil Practice Act. The bonds and coupons, copies of which are attached to the complaint are payable to bearer, as the statute requires, Section 84-86, chapter 24, Ill. Rev. Stats. 1943 [Jones Ill. Stats. 21.2308]. They pass by delivery. In the instant case the payments as made were endorsed on the bonds and coupons. And defendant’s answer gives the names of the parties to whom payments were made and also shows that plaintiff, the Reconstruction Finance Corporation, is the owner of the bonds in suit. When the City makes payments on bonds or- coupons „ they must be presented, and in the instant case, this was done and the payments endorsed on the bonds and coupons. This is all that the City was required to do. These are further reasons why defendant’s contention is untenable.

Defendant further contends that the decree is erroneous in “ordering defendant to levy a general tax against all the property in the municipality to pay said $28,883.55 money judgment provided for in said decree, or any part thereof. ’ ’ In support of this its counsel in their brief say that Section 9 of Article 9 of the Con-. stitntion provides that taxation by municipal corporations must be for corporate purposes and that the bonds and coupons in suit expressly provide they are payable solely out of the installment of the special assessment against which they are issued and that this limits the liability of the municipality, and that “No court has ever held, that a municipality is liable generally to pay interest out of money raised by taxation against all of the property in the municipality after the maturity of special assessment bonds, if the same are not paid when due.” We think this contention is without merit. Rothschild v. Village of Calumet Park, 350 Ill. 330. In the instant case there is a judgment against it which the City is required to pay.

Counsel for defendant contend that the amount of interest allowed in the decree is wrong. We think this contention must be sustained. We have been unable to ascertain when the collections were made and the funds diverted. We have above stated the rule which renders the municipality liable for interest and since the record fails to disclose when the diversions were made, the decree in this respect cannot stand. For this reason, the decree of the Superior court of Cook county is reversed and the cause remanded.

One half of the costs in this court will be taxed against each party.

Reversed and remanded with directions.

Niemeyer, P. J., and Hatchett, J., concur.


author: Opinion by Justice Kiley.

text:
    Jennie Levi et al., Appellees, v. Charles H. Stern et al., Defendants. Appeal of Charles H. Stern et al., Appellants.
    Gen. Nos. 42,578, 42,871.
    opinion filed October 11, 1944;
    released for publication October 27, 1944.
    Gustav E. Beerly, for appellants; Gustav E. Beerly, Jr., of counsel; Alden, Latham & Lutkin, for certain appellee; Joseph E. Winterbotham and David T. Alexander, for certain other appellee; Wm. Tracy Alden and Sidney F. Moody, of counsel.
   Opinion by Justice Kiley.

Not to be published in full.


author: Justice Kiley.

text:
    Bess Matheis, Also Known as Bessie Matheis, Respondent-Appellee, v. George H. Aharonian, Petitioner-Appellant.
    Gen. No. 42,770.

      opinion filed October 11, 1944;
    released for publication October 27, 1944.
    Eckert & Peterson, for petitioner-appellant; A. R. Peterson, J. Hayden MacDonald and Owen Rail, of counsel; Erich E. Pacyna, for respondent-appellee.
   Opinion by

Justice Kiley.

Hot

to be published in full.


author: Presiding Justice Niembyer.

text:
    Katherine Montgomery, Appellee, v. Checker Taxi Company and John McGregor, Appellants. Checker Taxi Company, Appellant, v. John McGregor, Appellee.
    Gen. No. 42,926.
    opinion filed October 23, 1944;
    released for publication November 6, 1944:
    Braun & Brodie and Thomas J. Cavanagh, for certain appellant; Thomas J. Cavanagh and William E. Corrigan, of counsel; Miller, Gorham, Wescott & Adams, for certain other appellant; Herbert C. De Young and Charles E. White, of counsel; James A. Dooley, for appellee.
   Opinion by

Presiding Justice Niembyer.

Not to be published in full.


author: Presiding Justice Niemeyer.

text:
    Genevieve Green, Appellant, v. Eugene L. Drew, Appellee.
    Gen. No. 42,996.
    opinion filed October 23, 1944;
    rehearing denied November 6, 1944; released for publication November 6, 1944.
    Joseph A. Ricker, for appellant; Sears, O’Brien & Street, for appellee; Barnabas F. Sears, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Grace T. Davidson, Appellee, v. R. G. Lydy Parking Co., Appellant.
    Gen. Nos. 43,071, 43,072.

      opinion filed October 23, 1944;
    released for publication November 6, 1944.
    Perlman, Goodman, Hecht & Chesler, for appellant;' Bluford, Krinsley, Schultz & Voorheis, for appellee; Victor Hedberg, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Margaret A. Jankovich, Appellee, v. John A. Lajevich, Appellant.
    Gen. No. 43,076.
    opinion filed October 23, 1944;
    released for publication November 6, 1944.
    Herbert E. Bradley, for" appellant; Alois Mavric, for appellee.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Thomas J. Hurt, Appellee, v. Walter Jurczcht, Appellant.
    Gen. No. 43,090.
    Matchett, J., dissenting.

      opinion filed October 23, 1944;
    released for publication November 6, 1944.
    Hubbard, Baker & Bice, for appellant; J. S. Cook, for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


author: Justice Hatchett.

text:
    Frances Koterba, Appellee, v. Zion Benevolent Society, Appellant.
    Gen. No. 43,036.
    opinion filed October 23, 1944;
    rehearing denied November 6, 1944; released for publication November 6, 1944.
    Fithian, Spengler & Finnegan, for appellant; Benj. J. Schultz, for appellee.
   Opinion by

Justice Hatchett.

Not to be published in full.


author: Justice O’Connor.

text:
    Florence Zak, Appellant, v. James C. Baker, Appellee.
    Gen. No. 43,080.

      opinion filed October 23, 1944;
    released for publication November 6, 1944.
    Walter E. Moss and Julius S. Neale, for appellant; Wyatt Jacobs and Walter A. Christopher, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Justice O ’Connor.

text:
    William George Hettich et al., Appellants, v. Rosella Hettich Albert et al., Appellees.
    Gen. No. 43,086.
    opinion filed October 23, 1944;
    released for publication November 6, 1944.
    Lloyd C. Whitman, for certain appellants; Daniel A. Covelli, Guardian ad Litem of Arthur P. Albert, Jr., pro se and Richard P. Shay, Statutory Trustee, pro se; Harry A. Biossat, for certain appellee.
   Opinion by

Justice O ’Connor.

Not to be published in full.


author: Mr. Presiding Justice Dove

text:
    Birdie Van Hoorebeeke, Appellant, v. Iowa Illinois Gas and Electric Company, Appellee.
    Gen. No. 9,982.

      Opinion filed September 19, 1944.
    Opinion modified and rehearing denied November 20, 1944. Released for publication November 20, 1944.
    Eagle & Eagle, of Rock Island, for appellant.
    Kenworthy, Harper, Sollo & Graham, of Moline, for appellee; S. R. Kenworthy and R. G. Graham, of Moline, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

Appellant sued appellee in the circuit court of Rock Island county to recover damages on account of injuries sustained when she slipped and fell on an icy sidewalk in the City of Rock Island, while walking toward a hus of appellee with the intention of boarding the same, and which, because the traffic was blocked, had stopped a short distance south of the street corner where it usually stopped. Appellant bases her suit upon an alleged invitation by appellee to enter the bus at the place where it stopped, and the claim that she was at that'time a passenger of appellee. Appellee denies any such invitation, and denies that she was its passenger at the time of the accident.

At the close of the testimony for appellant, the trial court denied appellee’s motion for an instructed verdiet in its favor, and at the close of all the testimony, took a like motion under advisement, and the cause went to the jury, which returned a verdict for $500 in favor of appellant. She filed a motion for a new trial on the ground of gross inadequacy of the verdict under the evidence. Appellee did not file any motion for a new trial, but filed a motion for judgment notwithstanding the verdict. The court granted the motion for a directed verdict, which had been taken under advisement, and entered judgment for appellee notwithstanding the verdict in bar of the action. The cause is here by an appeal from that judgment. No cross-error is assigned by appellee.

The grounds urged for reversal are, that the trial court erred in sustaining the motion for a directed verdict, and in entering judgment notwithstanding the verdict, and that a new trial should be granted. Appellee contends that there was no proof of actionable negligence on its part, or that anything it did was the proximate cause, of appellant’s injury; that she was • guilty of contributory negligence; and that her proofs fail to establish the cause of action averred in the complaint.

A motion for a directed verdict, either at the close of the testimony for the plaintiff, or at the close of all the testimony, or a motion for judgment notwithstanding the verdict, all raise the same question. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 311.) Such motions are in the nature of a demurrer to the evidence, and present only a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences drawn therefrom, in its aspect most favorable to the plaintiff, there is evidence tending to prove any cause of action stated in the complaint. If there is, the motion should be denied, and the weight and credit to be attached to it in connection with the other facts and circumstances shown are questions for the jury, even though, upon the entire record, the evidence may preponderate against the plaintiff so that a verdict in favor of the plaintiff cannot stand when tested by a motion for a new trial. (Todd v. S. S. Kresge Co., 384 Ill. 524, 527; Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59, 62; Bartolucci v. Falleti, 382 Ill. 168, 173.) Under a motion for a directed verdict, or for judgment notwithstanding the verdict, the court does not weigh the evidence, and has no power to determine the weight and preponderance of conflicting testimony. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300; Minnis v. Friend, 360 Ill. 328, 336.)

The accident happened at about 10'o’clock a. m. on December 17, 1942. Appellant, an employee of the LeClaire Hotel in Moline, was accustomed to go to work by bus from her home on 11th street in Rock Island, transferring from one bus to another at the intersection of 16th street and 2nd avenue in Rock Island. Sixteenth street runs north and south and 2nd avenue runs east and west. On the morning of the accident she boarded a bus in front of her home, paid her fare, and received a transfer. She left the bus at the southwest corner of the intersection mentioned, and walked east across 16th street to the southeast corner, to wait for the bus which would take her to Moline. As she waited for the bus she stood on the sidewalk on the east side of 16th street. The sidewalk is about 14% feet wide, and there was a yellow line on the curb marking the bus stop zone. The yellow line began at the south property line of 2nd avenue and extended south 50 feet, and at the time of the accident it was obscured by the ice on the sidewalk. There is a fire hydrant about one foot south of the north end of the line, and an iron pole six feet south of the fire hydrant. Immediately south of the bus stop zone was a parking space for cars, extending to the alley. The pleadings agree that there was in effect an ordinance of the City of Rock Island, which provided “that all motor buses shall make their stop to load or discharge passengers at the curb on the near side of the street, and within sixty (60) feet from the near curb line of the intersecting street; said sixty (60) feet to be properly marked.”

The complaint alleges that appellee was under a duty to obey the ordinance, and was also under a duty to stop its bus where passengers could board the same with reasonable safety; that regardless thereof, the driver of the bus in controversy stopped it away out from the east curb of 16th street, approximately one-half block south of the south line of 2nd avenue, and then invited appellant to board the bus; that she accepted the invitation, and in attempting to board the bus, she slipped and fell; that as a result thereof, she suffered a broken back, permanently disabling her; and that she had incurred medical and hospital expenses, and had lost and would in the future lose her wages, laying the ad damnum at $100,000. The nature and extent of her disability is not questioned.

Appellant testified that she had on a heavy fur coat and galoshes; that as she waited for the bus she stood on the sidewalk (on the east side of 16th street) a little way out from the window on the west side of a furniture store, and that the fire hydrant and the pole were west of her, and that if the bus had stopped where it usually did, she would have gone straight west to get aboard; that there were two or three cars parked along the east curb of 16th street, and that she was not paying exact attention to them, but thought they were parked in the space where the bus usually stopped, the car farthest north being parked somewhere around the post and fire plug; that a bus marked “Garage” stopped back of those cars, but did not take on passengers; that the bus she intended to take stopped back of the first bus, south of the crosswalk a distance equal to the length of two or three cars and the length of the bus marked “Garage” and about a car’s width out in 16th street; and that the driver honked the horn and opened the door; that she and two or three others ahead of her started walking diagonally south to get onto the bus, but not until the bus had stopped and the driver honked the horn; that she took six, eight or ten steps, walking carefully, because she knew the sidewalk would be icy and slippery, and her feet slipped from under her and she sat down hard, about eight or ten feet from the post, closer to the curb than to the'middle of the walk; that meanwhile, the bus marked “Garage” had gone on, and the bus that she intended to take came up to the corner, with the front door north of the fire hydrant, about the width of an automobile from the curb, out in the street, and the cars were still parked toward the curb, in the bus zone, so that it was necessary for her to go out into the street in order to get on the bus, to accomplish which she was helped by others. She further testified that she had not previously slipped on that day.

The driver of the bus testified that he turned into 16th street at the next corner south of the 2nd avenue intersection, and stayed there until the bus marked “Garage” left the intersection at 2nd avenue; that there were cars parked on the east side of 16th street up to the line of the bus zone; that he could not enter the zone because a private car had entered it when the “Garage” bus left, and stood about a bus’ length, approximately 30 feet north of the nearest parked car; that someone ran across 16th street from the post office on the southwest corner, and entered the private car, behind which the bus had stopped; that he honked the horn a couple of times for the private car to move on, which it immediately did; that he did not open the door of the bus when he stopped behind the private car, but opened it when he was within two or three feet south of the point where he stopped for appellant" whom he observed sitting on the curb with her feet in the street, immediately south of the iron pole; and that he opened the door in order to see the curb and get right up to it, so that she would not have to slide down between the curb and the bus.

One of the four people who were waiting for the bus corroborated the testimony of the bus driver, particularly as to the opening of the bus door, and in other material matters. This witness testified that appellant was standing with him about 18 inches east of the post and did not take a step, but fell where she was standing ; that when the bus stopped behind the private car and blew the horn, he, the witness, started for the bus, and when he got half the distance to the car parked in the zone, the driver of the bus motioned him to go back, and that as he started back he saw appellant’s feet slip from under her and she sat down on the edge of the sidewalk; and that the doors of the bus had not been open at the time the horn blew nor at the time the driver waved him back.

The testimony, in the aspect most favorable to appellant, with the reasonable inferences to be drawn therefrom, without considering any contradictory or conflicting evidence, shows that appellant had paid her fare from her home to her destination in Moline, and had ridden the first part of the trip, to the intersection of 16th street and 2nd avenue, and that she had a transfer for the remainder of the journey; that if the bus for which she was waiting had stopped at its usual stopping place, she would have walked straight west only a very short distance in order to get aboard; that it approached from the south, stopped outside the bus stop zone behind another bus, and the driver honked the horn and opened the door; that appellant started walking southerly and carefully along the ice covered slippery sidewalk to board the bus where it stood; that in so doing she was traveling a much longer route than she would have done if the bus 'had stopped at its usual stopping place; and that after taking several steps, she slipped and fell on the icy sidewalk and was severely injured. When the bus stopped and the driver honked the horn, the witness whom the driver waved back also started for the bus to board it. Appellant claims that the testimony of these two witnesses shows that they considered the acts of the driver of the bus as an invitation to board it at the place where it stopped, and we think that it may be reasonably inferred from the testimony that they did consider the acts of the bus driver as such, an invitation.

From the time when appellant started walking toward the bus under the conditions shown, with the intention of boarding it, as a part of her continuous journey, with her fare paid, and possessed of a transfer, she was a passenger of appellee. If she was injured through the negligence of the carrier while making such transfer the carrier is liable. (Feldman v. Chicago Rys. Co., 289 Ill. 25, 32.) A carrier of‘passengers, although not an insurer of the absolute safety of a passenger, must use the highest degree of care, skill and diligence for the safety of the passenger that is consistent with the character and mode of conveyance employed and the practical operation of the business, and is responsible for the slightest negligence resulting in injury to the passenger, provided the passenger is at the time of the injury in the exercise of ordinary care and caution for his own safety. (Chicago City R. Co. v. Shreve, 226 Ill. 530, 538, 539; Chicago & A. R. Co. v. Byrum, 153 Ill. 131, 134; Chicago City R. Co. v. Shaw, 220 Ill. 532, 539.)

Davis v. South Side Elevated R. Co., 292 Ill. 378, 383, relied upon by appellee, is a case where a passenger having left the train, had passed through the station and slipped on a banana peel on the stairway leading to the street and fell. The court held in that case that it is the duty of a carrier to provide reasonably safe depots, platforms, and approaches for the use of passengers, but that only ordinary care is necessary in such cases. On the same page of the opinion, referring to and distinguishing former cases, the court said that in all of them “it is clear that the accidents happened in hoarding or alighting from trains or in the course of their moving, and the reason for the highest degree of care in those cases was fully as great as if the passenger were on the moving train, but it is clear, by the great weight of authority, — by the textwriters and decisions in other jurisdictions, — that the same degree of care is not required as to the stations and approaches to and from them, because the danger incurred in such surroundings is not the same as it is on moving trains.” That case is not authority in this case for the rule invoked by appellee. It relates solely to the duty of the carrier to keep the station, the stairway therefrom, and other similar appurtenances owned or controlled by the carrier, in a reasonably safe condition. No question arises in this case as to the duty of appellee to keep the sidewalk in a safe condition. Appellant was in the act of attempting to board the bus, and we think the rule in the cases distinguished by the court in the Davis case applies here. However, if, under the holding in that case, appellee was bound to use only ordinary care under the circumstances in evidence, the question of whether the driver of the bus was using such ordinary care in honking the horn and opening the door when the bus stopped, outside the loading zone, was a question of fact for the jury.

Cases cited by appellee, where the conductor, or the xmotorman of a street car, did not see, and had no knowledge of a passenger attempting to alight at a dangerous place when the car stopped at a place different from the regular stop, are not persuasive here as supporting the contention of appellee. In one of such cases, Chicago West Division R. Co. v. Mills, 91 Ill. 39, the court said: “And therefore unless it should appear that the driver stopped the car for the purpose of letting passengers get off, or he knew that persons were actually getting off, the company is not chargeable with negligence because of his starting the car forward.” From this the principle is deductible that the knowledge of the driver of the movements of a passenger is a factor in the question of his negligence. If, in the case at bar, as testified by the driver of the bus, he saw and observed the movements of the “Garage” bus a block away, we think the question of whether he saw or could have seen and observed appellant’s movements when he stopped the bus, honked the horn and opened the door, and whether he was guilty of a want of reasonable care in doing so, was another question of fact for the jury.

In Scanlon v. Philadelphia Rapid Transit Co., 208 Pa. 195, 57 Atl. 521, relied upon by appellee, a passenger alighting at an irregular stop was injured by miscalculating the slope of the ground. Although holding that the defendant was not liable for her injuries because she could see the conditions, the court further said in the opinion; “Had she been misled or misdirected by the conductor in any way . . . the case would have been stronger.” Whether appellant was misled by the driver of the bus in the case at bar is the principal issue, and we think it was a question of fact for the jury to decide.

In Feeney v. Chicago City R. Co., 220 Ill. App. 400, where a passenger alighting at an irregular stop was injured because it was farther to the ground than she thought, and in Burge v. St. Louis, S. & P. R. Co., 193 Ill. App. 492, and Murtha v. City of Philadelphia, 130 Pa. Super. 411, 197 Atl. 513, all cited and relied upon by appellee, there was no question of whether the plaintiff was misled by any act of the railway company’s servant, and none of them are applicable here.

It is obvious that the hazard of traveling on an ice-covered slippery sidewalk increases in proportion to the distance traveled thereon. Under the evidence, there was a question whether appellant took the increased hazard by a negligent invitation of appellee. It cannot be said that walking on an ice-covered slippery sidewalk, with knowledge of the condition, constitutes contributory negligence as a matter of law. The courts of this State have long been committed to the doctrine that although a person goes upon a sidewalk knowing it to be defective or out of repair, that fact alone does not establish negligence per se on his part, if ordinary and reasonable care is used but the plaintiff’s knowledge of the condition is one of the circumstances to be considered by the jury in determining whether the plaintiff was in the exercise of due care; and whether due care was exercised in using a sidewalk, knowing it to be defective or out of repair is a question of fact for the jury. (Wallace v. City of Farmington, 231 Ill. 232, 235; City of Mattoon v. Faller, 217 Ill. 273, 281; City of Streator v. Chrisman, 182 Ill. 215, 217; Village of Clayton v. Brooks, 150 Ill. 97, 105; City of Flora v. Naney, 136 Ill. 45, 47.) The same principle applies to traveling a sidewalk which is dangerous because of being covered by snow and ice.

As contended by appellee, the familiar rule is that whether there is any evidence that the negligence charged was the proximate cause of the injury, is a question of law. (McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89), and it is urged that the slippery condition of the sidewalk, and not the acts of appellee, produced the injury, and that the acts of the bus driver did nothing more than furnish the occasion for the causal agency (the ice) to act; that such an occasion would be equally afforded if appellee had acted in full ■ compliance with the city ordinance; and that the minds of all reasonable persons would agree that the injury to appellant was caused by other agencies than the act of appellee. The law is well settled that if the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by "the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate cause. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300.) To the same effect is Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 274, upon which appellee relies. Applying the doctrine here, the slippery condition of the sidewalk existed before appellee’s bus drove up, and the stopping thereof, the honking of the horn, and opening the door were the subsequent independent acts, and therefore the doctrine invoked does not support the contention of appellee.

■ In each of the cases of Fox v. Minneapolis St. R. Co., 190 Minn. 343, 251 N. W. 916; Chesley v. Waterloo, C. F. & N. R. Co., 188 Iowa 1004, 176 N. W. 961; and Downs v. Northern States Power Co., 200 Wis. 401, 228 N. W. 471, also relied upon by appellee, a passenger alighting at an irregular stop was injured by a passing motor vehicle. It is clear that in those cases that the proximate cause of the accident was the passing motor vehicle, and the stopping of the car on which the plaintiff was riding merely furnished the condition by which the accident was made possible. The holdings in those cases are not applicable here.

As was said in the Merlo case (381 Ill. at page 317); “There may be more than one proximate cause of an injury. But if two wholly independent acts, by independent parties, neither bearing to the other any relation or control, cause an injury by one creating the occasion or condition upon which the other operates, the act or omission which places the dangerous agency in operation is the efficient intervening cause that breaks the causal connection and makes the other act or omission the remote and not the proximate cause of the injury. . . . What constitutes the proximate cause of an injury in a particular case is ordinarily a question of fact to be determined from all the attending circumstances, and it can only be a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. ’ ’

The principle that what is the proximate cause of an injury is ordinarily a question of fact for the jury has often been announced. (Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 168; Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, 135; Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312, 319.) The verdict of the jury in this case does not indicate that all reasonable men would agree that the acts of appellee were not the proximate cause of the injury.

Some of the material testimony was in direct conflict. We are of the opinion that whether the acts of the bus driver amounted to an invitation to board the bus where it stopped, whether such acts were negligent and induced appellant to take an increased hazard, whether the bus door was opened, whether appellant was walking or standing when she fell, whether she was guilty of contributory negligence, and whether the acts of appellee, or the slippery condition of the sidewalk, was the proximate cause of the injury, were questions of fact for the jury. The trial court was in. error in granting the motion for a directed verdict and in entering judgment notwithstanding the verdict.

Appellee’s contention that there is a variance between the complaint and the testimony, in that the complaint avers that she was injured while attempting to board the bus, while the testimony shows she was not in the act of getting aboard, is considered as waived by its failure to raise the question in the court below. (Linguist v. Hodges, 248 Ill. 491, 497; Reavely v. Harris, 239 Ill. 526, 530; Illinois Life Ass’n v. Wells, 200 Ill. 445, 453.)

The judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded. .


author: Mr. Presiding Justice Dady

text:
    John E. Groves, Appellant, v. Carolene Products Company, Appellee.
    Gen. No. 9,435.
    Opinion filed October 26, 1944.
    Released for publication November 21, 1944.
    John E. Groves, of Chicago, pro se.

      M. J. Brown, of Hillsboro and Harry C. Stuttle, of Litchfield, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

In February 1942, the defendant advertised in a ' newspaper that it would give a first prize of a $1,000 Defense Bond or $750 in cash to the person entering such contest who would make and submit the longest list of correct words out of the letters contained in the phrase “Milnot Whips.”

Plaintiff entered the contest and submitted a list of words. He was awarded a $2 prize which he refused to accept, and has brought this suit claiming that he is entitled to the first prize of $750.

The trial court sustained defendant’s motion to strike the sixth amended complaint. Plaintiff elected to stand by his complaint, and thereupon the court dismissed the suit. Plaintiff appeals.

Each of the three counts of such complaint alleged the making of such advertisement and by reference made the same a part thereof, a copy of which was attached to the complaint and marked Exhibit “A.”

So far as is material, the advertisement also provided that ‘ ‘ Whoever builds the most words wins a U. S. Defense Bond worth $1,000 at maturity. Prizes will be awarded for the most complete list of words .... But remember if one contestant has the longest list of correct words, she will be declared the winner . . . . Use any dictionary, but all words must be listed in Webster’s New International Dictionary. List a word only once regardless of definitions. Omit proper names, foreign words and plurals. Decision of the judges will be final.”

The first count further alleged that plaintiff built out of the letters contained in such phrase the most complete and longest list of correct words submitted by any contestant, and mailed said list to and said list was received by defendant within the time specified in the advertisement; that such advertisement required that the winner should be selected by persons styled “judges”; that the defendant for this purpose employed The Reuben H. Donnelley Corporation of Chicago, an advertising agency, which in turn selected three of its own employees to do the checking, grading, examining and judging of all submitted word lists and select the winners; that it was the duty of the defendant and its aforesaid agent to employ competent, trustworthy and skilled persons, so that their selection would be free from gross error, gross and material mistakes; that on the contrary the so-called judges were unfit, unqualified and wholly incompetent for such work; that said judges selected a winner of the first prize who submitted a word list containing 139' less correct words than were contained in plaintiff’s submitted list; that plaintiff advised defendant he elected to receive cash instead of a bond, and that by reason thereof the defendant was indebted to the plaintiff in the sum of $750 with interest.

The second count adopted all of the material allegations of count one and further alleged that said judges were guilty of misconduct amounting to fraud, in that they did not meet en banc but once or twice, and did not individually or collectively check, grade or examine each word in each word list submitted; that two of the judges delegated all of their duties to one of their number, who did all the checking, marking, grading and examining, that after the work of this one judge was finished and the winner selected by him, the other two judges simply okayed the work of such one judge, that by reason of such fraudulent conduct plaintiff was defrauded out of the first prize, and by reason thereof the defendant had not kept its promise to pay the plaintiff the sum of $750 or any part thereof.

The third count, so far as is material, alleged the making of such advertisement by the defendant, the furnishing of such list by the plaintiff, and the acceptance thereof by the defendant, that the list of the plaintiff contained more correct words than the list of any other contestant, and that by reason thereof the defendant became liable to the plaintiff, etc.

Counts one and two, by reference made Exhibit “B,” attached to such complaint, a part of such counts.

Such Exhibit “B” stated that “The following is a list of correct words not prohibited by the rules of the contest as shown in Exhibit ‘A,’ which words are in the word list of plaintiff herein and are not contained in the word list of the alleged winner of the first prize, to-wit:” (Here follows a list of alleged words.) Exhibit “B” then stated, “The following correct words are in the list of the alleged first prize winner and are not in plaintiff’s list of words; to-wit:” (Here follows a list of alleged words.) Exhibit “B” further stated, “Plaintiff’s list of complete words exceeds that of the firshprize winner by 139. All other words in the plaintiff’s list and that of the first prize winner are held in common or are incorrect. ’ ’.

Although the defendant’s motion to strike consists of nine closely typewritten pages, yet in reviewing the action of the trial court in disposing of such motion, we consider it only necessary to consider and dispose of the contentions raised and argued in the printed brief and argument of the defendant in support of such action of the trial court.

The first contention of the defendant is that the sixth amended complaint sets forth substantially the same cause of action as the five preceding complaints set forth, and inasmuch as the trial court sustained a motion to strike each of the preceding five complaints, it should properly dismiss the sixth amended complaint. We do not consider that this point is preserved for review. We have carefully read defendant’s motion to strike, as the same appears both in the printed abstract and in the original transcript of the proceedings, and we do not find therein any claim, or contention that the sixth amended complaint was the same or substanially the same as any preceding complaint.

- The defendant next contends that, ‘ ‘ The rule of the contest, that the decision of the judges would be final, is valid and binding upon plaintiff.”

In support of such contention the defendant quotes from 24 Amer. Jurisprudence, p. 476, wherein it is said: “Generally, where, by the rules of the contest, the decision of the judges is to be final, unless there is fraud present in such decision or unless the decision is not made in accordance with the rules, the courts will not interfere with the decision of the contest judges.” Such text in 24 Amer. Jurisprudence cites only three cases in support thereof, viz: Davidson v. Times Printing Co., 63 Wash. 577, 116 Pac. 18; Minton v. F. G. Smith Piano Co., 36 App. D. C. 137, 33 L. R. A. (N. S.) 305, and Smead v. Stearns, 173 Iowa 174, 155 N. W. 307.

In the Davidson case the court said: “The defendant had a right to attach such conditions to the offer of reward as it saw fit, and require the terms to be strictly complied with. It accordingly had a right to make itself the sole judge of any dispute arising over the reward, and provide that its decisions, made in good faith, should be final. . . . The defendant settled the dispute by deciding against the plaintiff after an investigation. This, it seems, is conclusive of the plaintiff’s right, especially in the absence of fraud.” The Davidson case was a three to two decision, the dissenting opinion saying that “If the reward was earned and the claim arbitrarily rejected, the appellant has a good cause of action.”

In the Minton case the trial court sustained a demurrer to the declaration. The Supreme Court said: “The argument that he (the plaintiff) does not show that he was a winner in the proposed contest for prizes is founded upon the contention, sustained by the learned trial justice, that he was bound by the award of the judges of the contest, unless there was a fraudulent award by them, which has.not been alleged. The acceptance by plaintiff and his agreement to abide by the decision of the judges binds him, in the -absence of allegations of a fraudulent award, to accept their decision in the matters properly submitted to them under the terms of the offer, which became a contract by plaintiff’s compliance with its terms. The authority of the judges of the contest must be determined by the terms of the published offer and rules governing the contest. These must be given a reasonable interpretation, and in case of ambiguity in any particular, the construction should favor the acceptor rather than the proposer who prepared and submitted the offer. . . . All that the judges were required to do was to compare the number of dots given in the answer with the number contained in the sealed envelope submitted by the manufacturers. . . . Their duty was fully performed when they found and reported that the number given in the answer was the correct one. Everything beyond that was superfluous. The actual finding that plaintiff had given the correct number in his answer entitled him either to the special first prize offered, or, in case of a tie with others, to a premium of equal value. It was not necessary for him to allege fraud in the award of the judges in respect of a matter not submitted to their judgment by the terms of the offer as published and accepted. ’ ’

In the Swiead case the court said, “It follows, therefore, that the publisher offering the prize and the candidates entering the contest assume mutual obligations and duties which the law will recognize and enforce, and the candidate who, when the ballot is closed, is shown to have earned the largest vote in accordance with the rules, is entitled to demand and receive the promised reward. . . . There is nothing in the terms of the offer in this case by which the defendant could empower or authorize the canvassing hoard to count and give effect to ballots which were manifestly invalid. . . . The duty of such board or committee was purely ministerial, and it could no more permit the terms of the contest to be ignored than could the defendant himself. ’ ’

The foregoing are the only authorities called to our attention which we consider in point. In our opinion such citations do not support the defendant’s contention that under the admitted facts in the present case the decision of the judges was final, but, on the contrary, it is our opinion that such citations support the contention of the plaintiff that his complaint states a good cause of action.

Each count of the complaint sufficiently charges and the motion to strike admits that the plaintiff duly made out and submitted the most complete and longest list of correct words made out of the letters in question. Assuming such alleged facts to be true, then in our opinion the plaintiff was entitled to the first prize, regardless of the decision of the so-called judges. The rules of the contest did not give such judges any discretion in passing on or granting such award. While, as stated in the Minton case, it was not necessary for the plaintiff to allege fraud in the award of the judges in respect of a matter not submitted to their judgment by the terms of the offer as published and accepted, yet, in our opinion, each of the first and second counts of the complaint sufficiently charges such fraud and misconduct on the part of the judges as to vitiate and make void their award.

Defendant next contends that inasmuch as the plaintiff listed the words in his Exhibit “B” and made the same a part of his complaint, the trial court could and this court of review should refer to and examine the dictionary in question for the purpose of refreshing its knowledge or recollection and thereupon determine whether the words relied upon by the plaintiff are proper words under the rules of the contest. With this contention we do not agree. It is our opinion that before an issue is formed by,an answer being filed to a complaint, neither the trial court nor this court can properly inquire into the evidence.

It is our opinion that the trial court erred in allowing the motion to strike.

This cause is reversed and remanded with directions to the trial court to deny the motion to strike and for further proceedings consistent with this opinion.

Reversed and remanded with directions.