text:
    People of State of Illinois, Defendant in Error, v. Vallis La Verne Dunsworth, Plaintiff in Error.
    Gen. No. 9,980.

      Opinion filed July 20, 1944.
    Max A. Weston, State’s Attorney, and John E. Sype, Assistant State’s Attorney, for defendant in error.
    James Berry, of Rockford, for plaintiff in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

On October 19, 1943, the state’s attorney of Winnebago county, filed an information in the county court of said county charging, ‘ Wallis La Verne Dunsworth with receiving and aiding in concealing stolen property to wit: 45 United States Gasoline Rationing Coupons, of the value of $15.00 or less, of the personal goods and chattels and property of one, Dale Blimling.” It is alleged that the crime was committed in Winnebago county, Illinois.

The defendant was arraigned and entered a plea of “not guilty.” The case was tried before a jury who found the defendant guilty and recommended a fine of $100 and 30 days in the county jail. At the close of the plaintiff’s case and also at the close of all of the evidence in the case, there was a motion made by the defendant’s attorney for a directed verdict. The said motion was overruled by the court. The defendant also entered a motion to strike all the testimony in regard to the burglary of the gasoline filling station of Dale Blimling, and the testimony of Elzie Harvey in regard to selling gasoline coupons to the defendant. This motion was likewise overruled. The defendant was sentenced to pay a fine of $100 and committed to jail for 30 days. It is from this judgment that a writ of error is perfected.

The first witness called on behalf of the People was Dale Blimling who testified that he was the filling station operator, and that his place of business was burglarized and quite a number of gasoline coupons were stolen from his premises. Elzie Edward Harvey, Jr., testified that he, together with other boys, burglarized the Blimling garage, and stole a number of gasoline coupons. This evidence is not disputed. Elzie Harvey then testified that he, together with one of the boys who was associated with him in the burglary, drove to the filling station of the defendant, and traded a part of the gasoline coupons for gas, and sold the others to the defendant for $10 cash. Harvey is corroborated in part by Ralph Grledhill. Charles Smith testified that he accompanied Harvey to Duns-worth’s garage, and when they drove up to the station, Harvey opened the glove department of the car and took out some gas coupons; that Dunsworth was on the right-hand side of the car with one foot on the running board; that Dunsworth said, “I guess I can use some of them.” Then Harvey got out of the car and took the coupons and Dunsworth got out and they went into the station alone. Dunsworth testified in his own behalf and denied buying or having anything to do with the stolen gasoline coupons.

It is now insisted that the trial court erred in not directing a verdict in favor of the defendant, Duns-worth. He contends seriously that the evidence relative to the burglary of the Blimling gasoline station should have been stricken from the record. Before the defendant could be convicted of receiving stolen property, it must be shown that the gasoline coupons in question were actually stolen from Blimling, so we think that all the evidence relative to the burglarizing of the Blimling filling station, and what was stolen from Blimling, was properly admitted. The evidence shows that the same gasoline coupons were traded and sold to the defendant.

The defendant also insists that the evidence for the conviction should not have been sustained, because Harvey was an accomplice, and his testimony should be received with great caution. This, no doubt, is a correct statement to the law, but the jury was properly instructed relative to the testimony of an accomplice. There is no question about the gasoline coupons being stolen. The accomplice was corroborated by two other boys. While it is true that the other boys confessed to other burglaries, the jury in considering the testimony, decided the issues in favor of the People, and from a review of the testimony, we think they were justified in their findings.

The plaintiff in error contends that the Hnited States gasoline rationing coupons are not property, and are of no value,- therefore, not subject to larceny, and he cannot be found guilty of receiving property that is not a subject of larceny. In a prosecution for larceny, proof of special ownership, or interest, or possession of the property, is sufficient °as against the defendant charged with a larceny of the property. In the present case there is no question but what Mr. Blinding had the actual and legal custody of the coupons at the time his place was burglarized. People v. Fitzgerald, 297 Ill. 264.

It is also argued that Blinding suffered no loss by reason of the coupons being stolen from him. This can have no bearing on the merits of this suit. The same question was before the Supreme Court in the case of People v. Racine, 362 Ill. 602, 604. Bacine was being prosecuted for having received some stolen stock certificates. It was contended that because Higgins, the owner, had received new certificates, that the old certificates became merely scraps of paper and were of no value. In the opinion it is stated: “It is first argued that the People failed to prove any loss on the part of Higgins. It was shown that he received new stock certificates to replace the stolen property and had also received dividends on his stock from time to time without loss' from the theft. On this account it is claimed that the stock certificates were mere pieces of. paper without value and did not represent property in such way as would bring Bacine within the statute. This position is untenable. A stock certificate is an instrument of value to the owner, and when taken from him by larceny or robbery the act constitutes a crime. The value of the property at the time of the theft or robbery is the determining factor. The crime is not wiped oub or lessened in extent if the stolen property subsequently loses value or has been replaced. ’ ’

It is insisted in the present case that the larceny statute is not broad enough to cover the crime charged against the defendant, and he insists that the gasoline coupons are without value, and therefore, he cannot be convicted. In the Am. Encyc. of Law, vol. 2, page 750, it is stated: “To be a subject of larceny, a thing taken must be of some value, but the least value is sufficient. It is larceny at common law to steal a piece of paper, or anything else that is property, although it may be of less value than the least coin.” Cited in support of this text is the case of Wolverton v. Commonwealth, 75 Va. 909. In this case, the defendant was indicted for stealing a padlock of the value of thirty cents. He was convicted and the case was appealed to the court of appeals of the State of Virginia. The last paragraph of the opinion is as follows: “At the common law, an article to be the subject of larceny must be of some value. It is sufficient, however, it is said, if it be worth less than the smallest coin known to the law. 1 Whart. Crim. Law, Sec. 632; 1 Bishop Crim. Law, Sec. 224. The indictment charges, that the lock was of the value of thirty cents. It is assigned that there was no proof of the value. It is true there was no 'distinct proof of a specific value, nor was such proof necessary. But the evidence, nevertheless, shows that it was of some value. It was used for fastening the door on which it was hanging. When taken, the key was in it. That was sufficient to show that it was of some value. See State v. Slack, 1 Bailey (So. Car.), 330, 343; Houston v. State, 8 English (Ark. Rep.), 66.”

In the case of Keller v. United States, 168 Fed. 697, the first paragraph of the opinion states the charge and the ruling of the court, which is as follows: “The indictment charged plaintiff in error with feloniously taking and carrying away ‘ six blank checks with stubs attached, each of the value of one cent, of the goods and personal property of the. United States.’ Section 5456, Rev. St. (U. S. Comp. St. 1901, p. 3683), makes it a felony to steal ‘any kind or description of property belonging to the United States.’ In support of the assignment that the court erred in overruling the demurrer to the indictment, the contention is made that ‘blank checks’ do not constitute property. While the promise or the grant or the obligation that may be expressed on paper is not a subject of larceny, it seems to us as futile to claim that blank checks are not within section 5456 as it would be to say that the ‘legal blanks’ in a lawyer’s office or at a stationer’s are not susceptible of ownership. ’ ’

In the case of the People v. Caridis, a California case (29 Cal. App. 166, 154 Pac. 1061), the defendant was charged with stealing a lottery ticket of the value of $1,250. The court sustained a demurrer to the indictment, and it was carried to the district court of appeals where the court sustained the decision of the lower court in holding that the lottery ticket was not a subject of grand larceny, but at the conclusion of their opinion they have this to say: “ (4) Considered as a mere piece of paper, the lottery ticket in question, possessed perhaps some slight intrinsic value, which, however small, would have sufficed to make the wrongful taking of it petit larceny, and, if that had been the charge preferred against the defendant, it doubtless would have stood the test of demurrer. 1 McClain on Criminal Law, Sec. 543.”

In the case of Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N. E. (2nd) 159, decided by the Supreme Court of Ohio, the question for decision was whether certain mechanical machines where a coin is inserted, were gambling devices. It was contended by the owners it was simply a machine for amusement. It was shown to be a device which, if a coin was deposited, it returns the players quite an amount of amusement, and in addition thereto, tokens as a reward, depending upon chance. It was contended by the owners that these tokens are of no value, and under the terms of the ordinance in question, have no valuation, and that they were of no value to the player. The court in their opinion, use this language: “However, for a game to constitute gambling, it must be one which is played for gain of money o,r a thing of value as the prize or reward.

“Appellees contend, substantially, that the only thing the machine affords to the player is amusement; that the tokens emitted have no intrinsic value; that under the terms of the ordinance, the tokens may not be replayed or redeemed; that, therefore, they have no value to the player; and that anything which has no value cannot be said to constitute a prize or reward.....

“The minimum amount of amusement offered in each play is that which is offered without any return of tokens. Whatever amusement is offered through the return of tokens is added amusement which a player has an uncertain chance of receiving. This added amount of amusement, the procurement of which is dependent wholly upon chance, is a thing of value, the lure extended by the device to the player.”

The Supreme Court of the United States in the case of Jolly v. United States, 170 U. S. 402, 42 L. Ed. 1085, 18 Sup. Ct. 624, sustained a conviction of the defendant for stealing postage stamps that had not been issued or sold, but in possession of the government. The opinion held that the criminal statute was broad enough to hold the defendant for stealing the postage stamps from the government. In the course of their opinion, they use this language: “The statute from which Sec. 5456, Revised Statutes, was taken was passed March 2, 1867, (14 Stat. at L. 557, chap. 193), and the same all embracing language is found therein. ‘Any kind or description of personal property’ is the phrase used. It was no doubt passed to enlarge the common law in relation to the subjects of larceny. Although at common law written instruments of any description were not the subject of larceny, as not being personal goods; that is, movables having an intrinsic value, yet although such instruments could not in strictness be stolen, the paper or parchment on which they were written might be, and prosecutions for petty thefts of this description frequently took place in England. People v. Loomis, 4 Denio, 380; 3 Chitty, Crim. L. 932; 2 Russell, Crimes, 74-80; Clark’s Case (Rex v. Clark), Russ. & R. C. C. 181; Vyse’s Case (Rex v. Vyse), Moody, C. C. 218; Reg. v. Morris, 9 Car. & P. 347; Reg. v. Rodway, 9 Car. & P. 784; Rex v. Bingley, 5 Car. & P. 602; Rex v. Mead, 4 Car. & P. 535. To make stamps, while unissued and in the hands of the government, the subject of larceny is not, therefore, any very great departure from the general doctrine of the common law.”

In the case of People v. Wilson, 298 Ill. 257, the defendant was convicted of the crime of burglary by breaking into a building and stealing whisky, while the National Prohibition Act was in effect. It was claimed by the defendant that the whisky had no market value, and was not a subject to larceny, therefore,. the conviction was illegal. . The court held that burglary may be committed where personal property, which is the subject of ownership is taken, and the fact that the property is kept for an unlawful purpose, does not change the nature of the crime, and further stated that it had an actual value, whether it had a market value or not, and was the subject of larceny.

It is our conclusion that the coupons in question did possess an intrinsic value, and were the subject of petty larceny. We find no reversible error in the case, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Lily Parsons Reighley, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, Trustee. Reginald B. Parsons, Appellant.
    Gen. No. 42,308.

      Opinion filed May 19, 1944.
    Supplemental opinion filed June 30, 1944.
    Heth, Lister & Flynn, of Chicago, for appellant.
    Theodore M. Stuart and Winston, Strawn & Shaw, of Chicago, for appellee; James H. Cartwright and George B. Christensen, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action to enforce a written instrument made in America pursuant to a written contract between plaintiff and Parsons made in Berlin, Germany, prior to the annulment of their marriage. The decree was in plaintiff’s favor and ordered dismissal of Parsons’ counterclaim which sought, on the ground of invalidity of the Berlin contract, the return of the securities deposited by him with the Bank under the American agreement.

Plaintiff was born of a German father and English mother in England in 1912 and, when six years old, was taken to Berlin, by her parents, where she lived until her marriage to Parsons. Defendant was born in Seattle, Washington in 1906, and he inherited' great wealth. In 1928, while still in college, he married Geneva Dahljehn who divorced him in Latvia in May 1934 and to whom he pays $1,000 per month for life under a divorce property settlement agreement, which also pledges him to pay $500 per month to the child of their marriage. In the fall of 1933 in Berlin, Germany, while in company of Geneva and while their marriage was in process of dissolution, Parsons met plaintiff, then a clothes model. After a rather constant courtship and while still married to Geneva, he proposed to plaintiff “before he knew it” and their engagement followed. They were married in Berlin in August 1935, made their home in Seattle and the marriage was annulled, by her action, in a decree of a Berlin court, effective August 20, 1936. The Berlin contract, in which he agreed to pay her $1,000 per month for life, was executed before her action was begun. The American agreement followed in October 1936.

The complaint recited the Berlin contract, in contemplation of the annulment, and its terms; the annulment decree in Berlin; the execution and terms of the American instrument; performance thereunder by Parsons; payments to plaintiff by the Bank until Parsons notified it to cease paying; and her demand for resumption of payments; and the Bank’s refusal. In answer Parsons charged that the Berlin contract was void for want of consideration; that the annulment and the agreements were the result of a fraudulent scheme designed and carried out by plaintiff; that the Berlin contract, made to facilitate the annulment, was void as against German and American public policy; that it was made under mutual mistake of the parties that Parsons had a duty to support plaintiff after the annulment; and that it was shocking and inequitable, since there was no intercourse during the marriage and plaintiff emerged therefrom physically the same, having had luxury lavished on her and had later married the man whom she had loved before marrying Parsons. The parties alternately made issue on these various allegations which presented questions of fact, law and fact, and law. The decree resolved the several issues in favor of the plaintiff; dismissed Parsons’ counterclaim for want of equity; held both agreements valid and enforceable and decided the American instrument was an executed trust agreement; and ordered the Bank to carry out the terms of the trust.

It is argued that Parsons, highly impressionable, physically and mentally weak, was defrauded into the marriage by plaintiff who, according to design, spurned his ardent love, and by her corresponding influence and trust, and her threats to disclose his physical deficiency, forced him into the Berlin contract. The trial court said that, if that was plaintiff’s design, it was “probably the most leisurely scheme to defraud in the books.” There are conflicts in the testimony on these issues with Parsons having the burden of proving the affirmative defenses. There is evidence that Parsons’ business manager Brehme introduced the parties, and encouraged plaintiff to keep Parsons company so as to help him out of his depression over the breakup of his marriage with Geneva; that Parsons loved plaintiff from the start, while her first emotion was pity which gave way to love; that she accepted his proposal conditionally and Parsons went to Switzerland, where his mother and sister approved the engagement; that Attorney Bayley, employed by Parsons’ father to represent the son in Geneva’s divorce, spoke favorably to Parsons about plaintiff; that the conditions attached to acceptance of Parsons’ proposal by plaintiff were that he should return to America and show her his ability to work and manage his affairs and get rid of Brehme, and that she delayed the marriage more than 18 months; that Parsons after Geneva’s divorce returned to America in June 1934 and his correspondence kept plaintiff advised of his business affairs and particularly of his own work, and he warned her against seeing Brehme in Europe. The correspondence corroborates plaintiff’s testimony of the reasons for delaying the marriage and seems to support her testimony that Brehme’s objection to the marriage was not altogether in the interest of Parsons. She testified that Brehme had resented her engagement because he wished her to be his mistress. There is nothing in the record to show that anyone except Brehme objected to the marriage during the more than 18 months’ engagement, although Bayley said, and plaintiff denies, he warned her, when he first met her in Berlin, of Parsons’ sexual incapacity. Plaintiff and defendant were married in Berlin in August 1935, after which they lived in Seattle, Washington, where apparently plaintiff was well received by his family and friends and, according to friendly letters by Parsons’ secretary, even after the annulment Parsons’ mother hoped that plaintiff would remarry him. Parsons, himself, more than a year after the annulment acknowledged that she had helped him, and the record indicates that she had. We see no reason to disturb the trial court’s conclusion of this issue.

Parsons argues that plaintiff was in love with Reichenheim, whom she met in the Spring of 1935. It is true that he was a frequent companion of Parsons and plaintiff and was consulted by her about the Berlin lawyer. The question of her good faith in the annulment, however, must rest upon the truth of the grounds therefor. If Parsons was impotent, we cannot say that plaintiff did not have a right to dissolve, or annul the marriage, regardless of her future plans or desires depending on the right. The record shows she married Reichenheim in August 1938 and Parsons remarried in November 1938. Before she married Beichenheim she knew of Parsons’ intention to marry his present wife. It is argued that she was cold, calculating and designing. The same answer may be given here. If she had grounds for annulment it can hardly be said she could not exercise her right upon them, regardless of what her character or motive might be. It is not denied that during their marriage of about one year, defendant, though he attempted frequently, was unable to consummate the marriage. His desire being frustrated on each occasion by the culmination of his excitement before the act was begun, and testimony being that she was ready on several occasions, any coldness or lack of co-operation on her part could hardly be responsible. He admits telling plaintiff in London in the Summer of 1936, when she inquired what was wrong with him, that an operation upon him when a boy, rendered him incapable of consummating the marriage. This admission lends credence to her story that until this occasion he had asked her to be patient. It is admitted that when 12 years old he underwent an operation involving a testicle. Following the London incident he was examined twice by Berlin doctors and after the annulment he was examined and treated by two American doctors, neither of whom testified in his behalf. In addition, he testified, in the annulment proceeding as to his incapacity.. There are inferences from the testimony that his sexual life with Geneva was not happy and a finding in the annulment decree that he seldom had intercourse with her, while there is also the evidence of the children of his first and third marriages. In itself, his life with Geneva or with his present wife is not determinative of his capacity during his life with plaintiff. There can be no question in this record of his inability to have intercourse with plaintiff, perhaps because of combined physical and psychological reasons. It is not denied she had grounds for the Berlin annulment. These considerations dispose of defendant’s complaint about the decretal finding that the contract was not made to facilitate the annulment.

The record shows that Parsons was represented in Berlin by counsel of his own choosing and participated in negotiations. He submitted to physical examinations, testified at the annulment hearing and was represented by competent American counsel in the drafting of the subsequent instrument. We consider the court’s finding that Parsons was fully and fairly represented and advised, is amply supported by the record.

Parsons contends there was no consideration for the" Berlin contract. Plaintiff argues, and the court found, that the consideration was a settlement compromise, either of plaintiff’s valid rights, or rights not clearly without foundation and which might have been litigated in Germany. All aspects of this issue were contested vigorously and exhaustively in the trial court and here, but we think the central .point is well stated in the court’s finding. The right which the court referred to would arise, if at all, out of Section 1345 of the German Civil Code. The construction and enforcement of both instruments, by the terms of the Berlin contract, are governed by the law of Illinois, but the question of consideration involved in those determinations can be answered only by reference to the German law. If plaintiff relinquished a right to support, or if she and Parsons compromised what was considered a doubtful right to support, there was good consideration for the contract. Mulholland v. Bartlett, 74 Ill. 58; Good v. Krause, 215 Ill. App. 333; Williams v. Estate of Frederick, 289 Ill. App. 410; and Dougherty v. Duckels, 303 Ill. 490. Under the German Introductory Act, Article XIII, the marriage and consequences thereof, between a German and an American, are determined for the former by German law and for the latter by laws of his State. The annulment was granted under Section 1333 of the German Civil Code. Under Section 1345, plaintiff had a right after the annulment to demand treatment as a divorcee, whose husband alone was at fault, with respect to support, provided that Parsons knew and she did not, that the marriage was void when contracted. Under Section 1578 a husband alone at fault, shall “accord to the divorced wife” fitting support. The parties when the Berlin contract was made, knew that cause existed for annulment and that, in the event of annulment, plaintiff could, in a subsequent proceeding, assert her right under Section 1345 to the support provided in Section 1578. Parsons could have refused to enter into the contract and, in defense of any claim by plaintiff under Section 1345, deny that plaintiff was German, that he knew of the nullity of the marriage when performed, that she was ignorant of the nullity; and contend that under the German Introductory Act, he was entitled to have his obligations determined according to the law of the State of Washington. There is no statute in Washington providing support in annulment cases, and the argument of the parties on the question whether the right to be treated as a divorcee under Section 1345 would aid plaintiff under Washington law, is not relevant. The annulment decree made findings favorable to plaintiff on the factors of the nullity of the marriage, and found that she was a German when married and “Stateless” at the time of annulment. According to the German law experts, who testified almost contradictorily on almost all their interpretations, she would have had to establish the facts anew in any proceeding for support. The trial court found that on the basis of the testimony, she could probably have established the facts. We need not inquire whether plaintiff would have been successful in a subsequent proceeding under section 1345. Dougherty v. Duckels, 303 Ill. 490. We agree with the trial court that at least, plaintiff’s claim for support in Germany under that law was not without foundation. Consideration for the Berlin contract was, accordingly, sufficient. This conclusion disposes of the complaints against the findings that the contract was neither inequitable nor shocking.

It is claimed that the parties made the agreement under a mutual mistake of fact arising out of the mutual belief that plaintiff was to obtain a divorce and that Parsons was under duty to support her. Each party was represented by two lawyers in Berlin and, while the parties themselves discussed the financial terms in the light of Geneva’s contract, after the cause for the action was determined, and both referred to the action before and after the decree as a divorce, the agreement was the result of negotiations between the lawyers and parties. It recites the use of an interpreter. It refers variously to the action as a “ divorce suit,” “cancellation of the marriage,” “declaring the marriage void” and “dissolution of the marriage.” Plaintiff’s proceeding and the decree entered were for annulment and in the American instrument drawn by Parsons ’ attorney, in the absence of plaintiff, the proceeding was referred to as “an annulment.” Under these circumstances, even though the parties themselves may have called the proceeding a divorce, we cannot say that either they or their attorneys were mistaken about the principles or goal of the negotiations. The finding against mutual mistake is correct.

The American instrument was made to carry out the terms of the Berlin contract, providing monthly payments for life to plaintiff of $1,000. Under German law support to a divorcee would cease upon remarriage but Parsons is bound by his contract. It is true that plaintiff’s present husband will probably enjoy the fruits of any payment made under the instrument, as Geneva’s European husband is probably enjoying her like payments. The Berlin contract required deposit by Parsons with the defendant Bank of security sufficiently great to produce the monthly payment. Under an alternative provision, Parsons was required to give the Bank irrevocable instructions to remit the payments to plaintiff, and to empower the Bank, in the event of deficiency of income, to sell such securities as become necessary to provide the payments and suspend Parsons’ right of disposal from the deposit, except when the obligation under the Berlin contract ceased or when there was excess income and except to substitute securities with plaintiff’s consent. Parsons performed under the American instrument simultaneously with its making and in all respects performed the obligations of the Berlin contract. He now claims that the American instrument was but a pledge to secure the payment to plaintiff, but the trial court held with plaintiff that the instrument was a trust agreement which became executed when Parsons performed the obligations and which created a fund out of which the payments were made. Because we have concluded that Parsons is bound by the Berlin contract, we need not decide the point. Since no reason has been shown why the Bank should not perform under the American instrument, we believe the decree compelling the Bank to perform was proper and it is hereby affirmed.

Affirmed.

Hebel, P. J., and Burke, J., concur.

Supplemental Opinion on Rehearing.

Defendant Parsons has filed a petition for a rehearing, asking that we review the finding of the trial court that the Escrow Security Pledge Agreement is an executed trust and not a pledge as Parsons contends. We held that, having decided Parsons is bound by the Berlin contract, we need not decide the further question. Parsons says, “This leaves the finding of the trial court to the effect that it is a trust in full force and effect between the parties.” No case is cited by him in support of that contention, though we find Russell v. Russell, 134 Fed. 840; People v. Skidmore, 27 Cal. 287; Finch v. Hollinger, 46 Iowa 216; Hall v. City of Kalamazoo, 141 Mich. 503; Spitzley v. Garrison, 208 Mich. 50; Stuart & Palmer v. Heiskell's Trustee, 86 Va. 191; and Ford v. Ford, 88 Wis. 122 are cited under section 1190 and 1336, 34 C. J. (Judgments) as support thereof. He admits the finding of the trial court on this question “was not necessary to plaintiff’s right to recover if the support agreement was founded on a valid consideration.” We follow the uniform rule (Moran Towing & Transportation Co. v. Navigazione Libera Triestina, 92 F. 2d 37; State v. Missouri Public Service Corp. (Mo.), 174 S. W. 2d 871; Cambria v. Jeffery, 307 Mass. 49; Karameros v. Luther, 279 N. Y. 87; and Schofield v. Rideout, 233 Wis. 550), that our failure to pass upon the trial court’s finding as unnecessary to our decision, does not leave that finding res judicata between the parties.

Russell v. Russell in the first group of cases mentioned, was referred to but not followed by a distinguished court in the Moran Towing case. The Michigan cases are not inconsistent with what we believe to be the general rule. If the Wisconsin case may be construed to be contrary to the general rule, it is not in accord with the very recent Schofield case cited above, which supports the rule. The Iowa case is, we believe, distinguishable. We do not agree with the California and Virginia decisions in so far as they conflict with the general rule.

We, therefore, adhere to our former decision.

Judgment affirmed.

Burke, P. J., concurs.

Lupe, J., took no part.


author: Mr. Justice Bristow

text:
    In re Estate of Mary Elizabeth Tilliski, Deceased. August Tilliski, Administrator of Estate of Mary Elizabeth Tilliski, Deceased et al., Appellants, v. Sarah A. Martin, Appellee.
    Opinion filed June 20, 1944.
    Rehearing denied August 28, 1944.
    Moses Pulverman, of Benton, for appellants.
    Frank E. Trobaugh and Stephen E. Brondos, of West Frankfort, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Mary Elizabeth Tilliski, a resident of Franklin county, Illinois, died intestate August 6, 1940 leaving her surviving her husband, August Tilliski, a natural daughter, Sarah A. Martin, a sister Daisy Walton, and a niece, Sarah Kaesberg. On October 9, 1940, letters of administration were issued to August Tilliski. Sarah A. Martin, wife of I. J. Martin, was legally adopted by T. J. Armstrong and Sarah Armstrong in 1900 while a small child. The proceeding was effected in the probate court of Williamson county, Illinois. The decree of adoption entered therein never was reversed or modified.

There was a hearing in the county court of Franklin county to determine the heirship of August Tilliski, at which time the attorneys for the administrator of decedent and Sarah A. Martin made and filed a stipulation of facts. The stipulation admitted (1) that Sarah A. Martin is the natural child of decedent; (2) that she was adopted by the Armstrongs in 1900; (3) the divorce of her parents and the later marriage of her mother to August Tilliski, and that the Tilliskis were divorced about 1925; (4) that the property left by decedent was her separate property awarded to her by the divorce decree; (5) that the Tilliskis were remarried and were husband and wife at the time of her decease; (6) that decedent left surviving her only the following persons claiming heirship: August Tilliski, husband; Sarah A. Martin, daughter; Daisy Walton, sister; and Sarah Kaesberg, niece; (7) that Sarah A. Martin received by will of T. J. Armstrong $200 and inherited $1,013.48 from the estate of Sarah Armstrong; (8) that the issue involved in the controversy is whether Sarah A. Martin, the natural child of Mary Elizabeth Tilliski, deceased, she being also the adopted child of T. J. Armstrong and Sarah Armstrong, is entitled to inherit a child’s part from the estate of her natural mother.

A final order was entered in the county court on July 24, 1942, finding that Sarah A. Martin was not denied her right to inherit from her natural mother because of the fact that she had become the adopted child of the Armstrongs. Appeal from this order was taken to the circuit court of Franklin county, and upon a trial de novo the court, having for its consideration the same stipulation of facts, entered a finding sustaining the conclusion reached by the county court. From this order, this appeal is presented to this court.

The appellant contends that a decision of this case must turn wholly on the Descent Act of Illinois, which is article 16 of the Probate Act, and on the Adoption Act of Illinois as same were in effect at the time of the death of Mary Elizabeth Tilliski on August 6, 1940.

Prior to January 1, 1940, the old Administration Act of 1872 did not include the law of descent. The Descent Act of 1872 was set out in an entirely separate chapter. The statute on adoption of children of 1874 was prior to January 1,1940, and still is a separate chapter. The new Probate Act which became effective July 1, 1940 expressly repealed the Administration Act of 1872, and the Descent Act of 1872 and sections 5, 6, and 7 of the Adoption Act were deleted and recast into the Descent Act embodied in the new Probate Act as section 14 of Article II.

The matter of descent of property is the prerogative of the legislature, and descent statutes may be changed by the legislature at any time before the right of inheritance has become fixed as a vested right in the heir by the death of the owner. Wunderle v. Wunderle, 144 Ill. 40; Sayles v. Christie, 187 Ill. 420.

It is the contention of the appellant that certain changes were made in the adoption and descent statutes which evidenced an intention on the part of the legislature to preclude an adopted child from inheriting from his or her natural parent. To analyze this contention, let us examine the changes relied upon. Section 3 of the Illinois Statute on adoption of children in force at the time of the death of Mrs. Tilliski, and still in force, expressly provides: “. . . that from the date of the decree (of adoption) the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners . . . .” Section 8 of such adoption statute expressly provides: “The natural parents of a child so adopted shall be deprived, by the decree, of all legal rights as respects the child . . . .” Section 3 of the old Illinois statute on adoption in force in 1900 when the appellee in this case was adopted, and continuing in force till the new Probate Act in 1940, contained exactly the same language as above quoted from section 3 of the new Probate Act. Section 5 of the old Adoption Act in force in 1900 at the time appellee herein was adopted and continuing in force till 1940 expressly provided: “A child so adopted shall be deemed, for the purpose of inheritance by such child, . . . and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock . . . .” The only clause of the descent article directly involved is the first clause, which reads: “First, when there is a surviving spouse and also a descendant of the decedent: (a) to the surviving spouse one third . . . and (b) to the decedent’s descendants per stirpes two thirds

Appellant concedes that an adopted child under the above “First” can inherit as a descendant of an adopting parent. Appellee contends that the adopted child may inherit both from adoptive parent and natural parent. Section 165 of the Probate Act (1941 Ill. Rev. Stat., ch. 3, par. 165, sec. 14; Jones Ill. Stats. Ann. 110.261) expressly provides that the adopted child “is deemed a descendant of the adopting parent for purposes of inheritance, except, . . . An adopting parent . . . is deemed the parent of the adopted child for purposes of inheritance, . . .” Our Illinois statute on descent and distribution (Probate Act, ch. 3, 1941 Ill. Rev. Stat., par. 162, sec. 11; Jones Ill. Stats. Ann. 110.258) does not mention a “child” or “children” as an heir, but the term exclusively used as “descendant” of the decedent.

Appellant urges that it is important to observe that under the new enactment the use of the words “child” and “children” was discontinued. The descent article of the Probate Act deals with four different classes of children: section 11, thereof, the natural child; section 12, the illegitimate child; section 13, the posthumous child; and section 14, the adopted child, where it says the adopted child is a descendant of the adopting parent. The appellant further reasons that since the adoption statute has been in force for more than 66 years prior to the Probate Act of 1940 (and the descent statute for 68 years), that, under recognized canons of statutory construction, it must be assumed that the legislature advisedly used the word “descendant” in section 14 of the Descent Act relative to an adopted child so as to synchronize" that term with the word “descent” as used in section 11 of the Descent Act. Quoting from the appellants’ brief, that we may appreciate the reasoning contained there, based upon the foregoing indicated statutory changes: “It must also be assumed that the Legislature in designating by section 14 of the Descent Article of the Probate Act the adopting parent as ‘the parent of the adopted child for purposes of inheritance’ intended to say just exactly what they did say, and did not intend to say: one of the parents. Had the Legislature intended to provide that the adopted child should, inherit not only from the adoptive parent, but also from the natural parent, it would have been very easy to say that in section 14 of the Descent Article. It is not for the courts to read into the statute that which is not there. When the Legislature uses the term ‘the parent of the adopted child,’ such term is to be given its ordinary meaning, and, in connection with the wording of the Adoption Act and the Descent Article, it is obvious that the Legislature not only intended, but specifically stated, that the adopted child for the purposes of inheritance shall have only one parent — the adoptive parent (or parents) and not the blood parent (or parents).” Might it not be pertinently observed at this point that had the legislature intended to bar a dual inheritance on the part of an adopted child, it could have done so by saying so in simple, apt language and not leave the subject open to guess, speculation, and conjecture?

Since the word “descendant” has been used in place of “child” or “children,” we can profitably discuss the authorities that had under consideration the fixed, definite legal meaning of that term. In the case of Wyeth v. Crane, 342 Ill. 545, the court at page 547 said: “The word ‘descendant,’ as defined in the standard dictionaries and by textwriters, means one who is descended lineally from another, to the remotest degree (Webster’s Dict.; New Standard Dict.; Bouvier’s Law Dict.; 2 Jarman on Wills (5th ed.) p. 103; 2 Redfield on Will (3rd ed.), p. 77; 1 Page on Wills (2d ed.), Sec. 904, p. 1511; Thompson on Const, of Wills, Sec. 186, p. 321). It is coextensive and synonymous with ‘issue.’ 1 Page on Wills (2d ed.), Sec. 904, p. 1151; 2 Jarman on Wills (5th ed.) p. 1006; Bates v. Gillett, 132 Ill. 287.”

In appellants ’ ably and clearly written argument, he further emphasizes the fact that the statutory changes heretofore mentioned, were prepared by the legislature in order that the status of the adopted child may now comport with the modern viewpoint of adoption, — that after adoption, the natural parent and the adopted child are, as they should be, for inheritance purposes strangers to each other.

There is one case, namely, Keegan v. Geraghty, 101 Ill. 26, that is cited and relied upon by both parties. The appellants in citing the case say: “It can be read only as in effect holding that the adopted child can inherit only from one set of parents, only from the adoptive parents, and not from the blood parents.” In view of the fact that, this case seems so important in sustaining the cause of opposing counsel, we deem it helpful to quote rather fully from that citation. ‘ ‘ The adoption of one person by another is the creation of an artificial relation between people, and is taken from the Roman law, being unknown' to the English law. But a majority of the States of the Union have enacted' statutes of adoption. There is not uniformity in such statutes. In no two of them, perhaps, are the new rights and obligations precisely the same. Except Louisiana and Texas, Massachusetts seems to have been first of the States to enact a law of adoption. The first statute on the subject in the latter State was passed in 1851, some change in which was made by subsequent statutes there passed in 1860 and 1871. Wisconsin passed the law under which petitioner was adopted, in 1858, it being a re-enactment, substantially, of the Massachusetts law of 1851. Illinois passed her first law on this subject in-1867 (Laws 1867, p. 133) which remained in force until 1874, when the present law was enacted, which, as to the rights of the adopted child, seems to be taken directly from the Massachusetts acts of 1860 and 1871, its wording in such respect appearing to be identical with that of the Massachusetts acts. The Massachusetts act of 1871, and the present Illinois act, as to the rights of the adopted child, are substantially the same as the Wisconsin law, except that by the latter there is no exclusion of taking from the lineal or collateral kindred of the parents by right of representation. . . . Our statute of adoption provides that the child adopted shall be deemed, for the purpose of inheritance by such child, the child of the parents by adoption, etc. ‘For the purpose of inheritance by such child,’ — from whom? The statute does not say, but we say, from the adoptive parents. We think it must be so limited from the nature of the proceeding, the propriety of so doing, and from the absence of express words of further extent. The proceeding of adoption is one entirely between such parents and the child, at the instance, by the consent, and upon the petition of the parent or parents. The artificial relation from adoption is established between these parties, and the statute defines what shall be the duties and rights of the parties from this relation between them. As we construe the statute, as between the parties to the transaction the adopted child is deemed, for the purpose of inheritance from the adoptive parents, their child, the same as if he had been born to them in lawful wedlock. And when such an adoptive parent dies intestate, having had no children born to him in wedlock, it is reasonable and just that the property he leaves should go to a stranger to his blood, his adopted child. It would be a consequence of his own desire and request in the taking of the adoption proceeding. But another person, who has never been a party to any adoption proceeding, who has never desired or requested to have such artificial relation established as to himself, why should his property be subjected to such an unnatural course of descent? To have it turned away upon his death from blood relation's, where it would be the natural desire to have property go, and pass into the hands of an alien in blood, — to produce such effect, it seems to us, the language of the statute should be most clear and unmistakable, leaving no room for any question whatever. We find in our statute of adoption no express language giving to the adopted child the right to inherit from any one else than the adoptive parents. By the statute the adopted child is to be deemed the same as if born in lawful wedlock, for the purpose of inheritance by such child, ‘and the legal consequences and incidents of the natural relation of parents and children.’ These last general words, we think, are to be qualified in like manner as the others remarked upon, by restriction to the parties to the adoption proceeding and the persons named in the statute. Surely, in this generality of language there can not be found given the important right to inherit from a person other than the adoptive parents. . . . We then find that our statute of adoption contains no provision on the subject of the rights of the children born in wedlock and adopted children, as between themselves,— that no right is given to them to inherit from or through each other. Hence, under our law, the petitioner, for any right to inherit from Mary Gertrude Keegan, the child of the adoptive parent, Michael R. Keegan, must look to our statute of descent; and the right, if any, must be found there alone. To inherit under that statute she must be the sister of Mary Gertrude Keegan. Petitioner is not such sister, nor has she been made an adopted sister, and had given to her the rights of a sister to Mary Gertrude Keegan. An adopted child is not a child in fact, nor is an adopted child, having the right of a child, a child in fact. But under the statute of descent, to inherit from Mary Gertrude Keegan, as her sister, petitioner must have been the actual child of Michael R. Keegan — being his adopted child will not suffice.” This case simply holds that an adopted child cannot inherit from its adoptive sister. The language employed that gives false encouragement to appellant is “the statute does not give the adopted child the right to inherit from any other than its adoptive parents.” That sentence plainly means that an adopted child cannot inherit from any other member of the family of the adoptive parents. That was the question under consideration. The decision no place says that the statute takes away any right the child has to inherit from its natural parent. It merely says it cannot inherit from a foster sister.

Another case relied upon strongly by appellant is that of Boosey v. Darling, 173 Cal. 221, 159 Pac. 606. The appellant'claims “the reasoning and conclusions reached are much like those of the Keegan v. Geraghty case, supra.” In this case, the California court held that an adopted child cannot inherit from its natural parent, and quoting; “Our statute does in effect provide, as we have seen, that he can no longer inherit from his parents by blood, because, so far as they are concerned he is no longer their child.” Yet this same court held that such child could inherit from its grandparents, claiming that such relationship of adopted child and grandparent is not affected by the adoption statute. This seems to be the only case in the entire United States where a reviewing court had made such a pronouncement.

The adoption statute in California is slightly different from the one in Illinois. The California statute relieved the natural parent of all parental duties toward, and all responsibility for, the child so adopted: “The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it.” The Illinois statute does not do this. On the contrary, under the Illinois law the natural parent continues to be responsible for the adopted child. The Illinois court in the case of McNemar v. McNemar, 137 Ill. App. 504, at page 507, held the adoption statute left the rights of inheritance between the adopted child and his natural parent the same as though no adoption had taken place, and that the statute did not destroy or impair the relation that existed between the natural parent and child; also that the statute did not by its terms or implications attempt •to relieve a natural parent from the duty he owes his child to care for and support him.

This court joins in the criticism of the holding in the Darling case, supra, which is found in In re Estate of Roderick, 158 Wash. 377, 291. Pac. 325, 80 A. L. R. 1398: “While holding, Boosey v. Darling, 173 Cal. 221, 159 P. 606, that an adopted child could not inherit from its natural parents, the Supreme Court of California decided that an adopted child could inherit from its natural grandparents. Criticizing that opinion, the Supreme Court of South Dakota, in Sorenson v. Churchill, 51 S. D. 113, 212 N. W. 488, 489, held that an adopted child’s right to inherit from its natural parents was not divested by the- adoption statute. The court said: ‘Though the sections of our adoption statute above cited be similar to corresponding sections of the California Code, and though the California court has said Boosey v. Darling, 173 Cal. 221, 159 P. 606, on the strength of those statutes, “our statute does, in effect, provide . . . that he can no longer inherit from his parents by blood,” with all deference to that court whose opinions have had such peculiar weight with us, we are reluctant to follow it in this instance; for, in that case, it held that, despite the above restriction upon inheritance, an adopted child could inherit from its natural grandparent through right of representation, as the child of his natural parent from whom he could not inherit. The Minnesota court, in Roberts v. Roberts, supra, while not attempting to analyze the varying adoption statutes of the various states, considered the California cases cited by appellant herein, but concluded that an adopted child does inherit from its natural parent, and cited a long list of cases in consonance therewith, among which we find many cited by respondent there. . . . Neither by express statute, nor by necessary implication, nor by prior decisions of this court, nor, indeed, by the express holding in a like case by any court, are we compelled to ignore the demands of that-blood right on which the statutes of descent are based. In fact, a great array of authority, from Justinian to the recent Minnesota case above cited, convinces us that the laws of adoption do not so limit that part of Section 701, Rev. Code 1919, above quoted, as to cause a child, on being adopted, to lose its right to inherit from its natural parent. By our adoption statute a new relation of parent and child is created. Capacity to inherit from the adoptive parents is conferred upon the child, but there is no language in the statute purporting to deprive the adopted child of the right to inherit from its natural parents. We have no statute preventing such dual inheritances, therefore, an adopted child may inherit from both adoptive and natural parents.’ ‘ ... It may be observed that there is no statute which prevents dual inheritance. While the adoption statute creates a new relation of parent and child, and confers new capacity to inherit, it does not purport to cut off capacity to inherit already enjoyed. Without such a statute, the authorities seem to agree that an adopted child may inherit from both its natural and its adopted parent.’ Dreyer v. Schrinck, 105 Kan. 495, 185 P. 30, 33. Not losing by adoption the right which the statute of descent gave to appellant of inheriting from her natural father, that father died intestate as to appellant by reason of his failure to name or provide for her 'in his will.” The general rule throughout the United States seems to be that an adopted child in a legal sense is the child of both its natural and its adopting parents, and is not because of the adoption, deprived of its rights of inheritance from its natural parents, unless the statute expressly so provides. Section 26, page 614, vol. 1, Euling Case Law. Unless prohibited by statute, an adopted child may inherit both from its adoptive and natural parents, and in absence of a statute to the contrary, an adopted child may inherit both from its adoptive parent and from or through its natural parent. Section 129, page 1400, vol. 1, Corpus Juris.

In the case of Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 585, you will find the following language: “Our adoption statute grants to the adopted child the right to inherit from its adoptive parent, but does not divest that child of the right of inheritance from its natural parents. The statute is in derogation of the common law. It cannot be assumed, presumed or inferred that the appellant cannot inherit from her father, in the absence of a legislative declaration to that effect. . . . It may stand assumed as sound law that consanguinity is so fundamental in statutes of descents and distributions that it may only be ignored by construction when courts are forced so to do, either by the terms of express statute or by inexorable implication. ’ ’

In 80 A. L. R. page 1403 may be found numerous cases cited from United States, Indiana, Iowa, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New York and South Dakota, where the general rule on the question under consideration is found to be, quoting “The general rule, sometimes embodied in express statutory provisions, is that the right of a child to inherit from its natural parent is not affected by the fact of its having been adopted by another. ’ ’

In Bartram v. Holcomb, 109 Kan. 87, 198 Pac. 192, the court held: “a child who after the death of his mother, was adopted by his maternal grandfather, inherits from the grandfather on his death, as his adopted child, and inherits also as the child of its mother. ’ ’

In 2 C. J. S., page 454, sec. 63 may be found a further discussion of the subject throwing more light on the sound reasons underlying the descent rule that no child should have his inheritance abridged because he has been adopted by another, quoting: “The adopted child continues to inherit from all blood relatives in the absence of a statute to the contrary, although he may be denied the right to inherit in a dual capacity where the adoptive parent is a blood relative.

“In the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in section 6 of this title, and also, in view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall he divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of its right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect. Where the statute is considered as having the effect of depriving him of the right to inherit from his natural parents he can still inherit from other blood relatives. It has been held that an adopted child may inherit from the same person in the dual capacity of a blood relative and an adopted child, although the right to take in a dual capacity has also been denied, in which case the child will inherit in the capacity which gives it the greater right.”

In Sorenson v. Churchill, 51 S. D. 113, 212 N. W. 488, the court had the following to say on the subject: “The adopted child, the person principally affected by the transaction, has no choice and gives no consent. . . . No one consents for the innocent and helpless subject to the transfer that he shall lose the right to inherit from his natural parent, whose issue, under section 701, he does not cease to be when the right of his control passes to another.”

In Wagner v. Varner, 50 Iowa 532, the court said: “Because of the adoption the child acquires certain additional rights, but there is nothing in the act of adoption, which in and of itself takes away other existing rights, or such as may subsequently accrue.” Beaching the same conclusion the Kentucky court in the case of Villier v. Watson, 168 Ky. 631, said: “ ‘All the authorities agree that the fact of adoption does not lose the-adopted child’s right of inheritance from its parents. ’ ”

In the- case of Humphries v. Davis, 100 Ind. 274, the court employed this language in support of the general rule: “The rule which we adopt does not cut off the adoptive child from inheriting from its natural reíatives. It may inherit from them and also from its adoptive parents. This was the rule of civil law, Sanders Justinian 105.”

. Counsel for appellant finds no answer to the many authorities heretofore cited holding contrary to his contentions except to say that the statutes in those States were different, and that in many instances there was no descent and adoption statute involved. This does not seem to answer the general broad sweeping pronouncement that an adopted child will not lose its right to inherit from its natural parent unless expressly DENIED SUCH RIGHT BY STATUTE.

In view of the foregoing, it seems to us-that the conclusion is irresistible that an adopted child, in a legal sense is both the child of its adopting parent and its natural parent. We reach this result not only because the overwhelming weight of authority in the United States points in that direction, but to hold otherwise would be extremely unjust and unnatural. Consanguinity cannot be ignored in placing a meaning upon our adoption and descent statutes. Only by express terms and clear language appearing in such statutes denying inheritance of a blood relative could we be persuaded to make such a decision. Appellants ’ counsel earnestly .contends that the changed language appearing in the 1940 enactments heretofore outlined, indicates a desire on the part of the legislature to confine the inheritance on the part of an adopted child to its foster parents. We deduce the contrary inference from the action taken by the legislature. They nowhere expressly said that an adopted child should lose its rights to inherit from a natural parent. And further there is no language in either the old or new enactments which gives support to any reasonable implication that they ever meant to destroy the dual inheritance of, an adopted child.

We are, therefore, of the opinion that the judgment of the circuit court should be affirmed.

Affirmed.


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    Max Levinson, Appellee, v. Speetor Motor Service, Appellant.
    Gen. No. 42,651.
    Opinion filed June 30, 1944.
    Rehearing denied July 25, 1944.
    Golden & Golden, of Chicago, for appellant.
    Yale & Yale, of Chicago, for appellee; Harry L. Yale, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action brought by virtue of section 16 (b),. for violation of the maximum hours provision (section 7), of the Fair Labor Standards Act of 1938 (52 U. S. Stats. 1060), designed to spread employment and maintain health. Southland Gasoline Co. v. Bayley, et al, 6 Labor Cases, 51159. Judgment was for plaintiff in the amount of $1,149.88. Defendant has appealed.

Defendant is a Missouri corporation, licensed in Illinois and engaged in interstate commerce as a motor carrier of freight, by which plaintiff was employed from October 1, 1939' to October 6, 1941. He claims that he worked 87 hours per week for the period from October 1, 1940 to October 6, 1941, during which defendant violated section 7 of the Act by refusing to pay him time and a half for all hours in excess of 42 hours per week during the period from October 1, to October 24, 1940; and for all hours in excess of 40 hours per week from October 25, 1940 to October 6, 1941, less one week’s vacation. The maximum working hours are established in section 7 (a), (1),, (2) and (3) of the Act.

Defendant’s affirmative defense is that the nature of plaintiff’s employment, exempted him from the provisions of the Act, (section 13) and brought him under the exclusive jurisdiction of the Interstate Commerce Commission, since his duties were those of “dock rna.il,” “loader” and “dock foreman” and directly connected with the safety of equipment and cargo in Interstate Commerce.

The trial court found in its judgment order entered December 28, 1942, that the plaintiff worked 87 hours per week during the period for which the suit was brought and that the major portion of the work performed by him during that period did not affect the safety of defendant’s operations and that plaintiff was not exempted from the provisions of the Act. The defendant argues that the finding that the plaintiff is not exempted is erroneous as a matter of law and is against the manifest weight of the evidence; and also that the amount of the judgment entered exceeded the court’s jurisdiction in plaintiff’s fourth class action.

Section 13 (b) exempts from the provisions of section 7 of the Act any employee subject to the jurisdiction of the Interstate Commerce Commission under section 204 of the Motor Carrier Act of 1935 (49 U. S. Stats. 543). That section empowers the Commission to regulate the qualifications and hours of service of employees’ whose activities affect the safety of operation. United States v. American Trucking Association, 310 U. S. 534, 553. The decisive question on the merits is whether plaintiff is such an employee.

In the Trucking Association case, the court said that “the interpretation of the Interstate Commerce Commission and the Department of Labor are entitled to great weight.” In Ex parte No. M. C. -2, Yol. 28 Interstate Commerce Commission Reports, page 125, the Commission interpreted the term safety of operation” used in that case to include employees who devote a substantial part of their time to activities which directly affect safety of operation; that among such employees were “loaders,” variously called “loaders, dock men or helpers,” who devote a large part of their time to activities directly affecting safety of operation and whose sole duties are to load and unload motor vehicles, etc. Plaintiff contends he is a checker, not a loader, and therefore, not within the Commission’s interpretation. We believe that his duties — not the name given his position — are determinative. To preclude the exemption provided in sec. 13 B of the Act from applying to him, plaintiff relies upon McKeown v. Southern California Freight Forwarders, 6 Labor Cases (U. S. District Court, Southern District of California) 61521; Overnight Motor Transportation Co. v. Missel, 316 U. S. 572; Magann v. Longs Baggage Transfer Co., 39 Fed. Supp. 742; and mainly upon Anuchick, et al. v. Trans-American Freight Lines, 6 Labor Cases (U. S. District Court, Eastern District of South Michigan) No. 61,245. The facts in the first two, place the employee plainly outside the exemption; and in the third, a truck driver was found to be exempt. In the Anuchick case, the court found that certain employees devoted a substantial part of their time to work not directly affecting safety of operation and, on the theory that it was bound by the Department of Labor’s interpretation of the term “substantial” in Bulletin No. 9, gave judgment for the employees. The interpretation in Bulletin No. 9 then prevailing was that “substantial” meant in excess of 20% of duties not connected with loading and unloading. Bulletin No. 9, as revised to October 1943, modifies the earlier interpretation to mean “the greater part of his time during any work week on non-exempt activities.” We assume the court in the Anuchick case would have accepted this later interpretation had it then been effective and, unless the employees there spent the greater part of their time on duties not directly affecting safety, would have held against them. These various interpretations suggest the difficulty of finding the proper rule here. The trial court apparently applied the later interpretation of the Department of Labor.

Defendant Terminal at 600 West 25th street, Chicago, is the scene of three phases "of motor carrier business — inbound freight, outbound freight and local freight. Trucks carrying freight originating locally and in foreign cities and States, are unloaded by gangs of defendant’s employees. A gang usually consists of 3 or 4 men — a checker, caller, sorter and packer. The checker directs the gang’s operation. Day and night foremen supervise the activities of all the gangs. Incoming freight is unloaded and deposited according to its destination on the dock in various sections at the direction of the checker; likewise under the direction of the checker, it is removed from these sections and loaded on appropriate outgoing trucks. It is loaded according to size and weight; heavy weighted or “bottom freight” being distributed in the lower part of the truck and lighter weighted or “balloon freight” is placed at the top. This plan is followed in the interest of safety of equipment and of freight. Testimony pertinent to the issue on the merits is that, as checker, plaintiff supervised and directed the unloading and disposition of incoming freight and the collecting and loading of the outgoing freight and that he watched the disposition of the weight of the freight in loading. The dispute in the testimony arises as to the quantity of plaintiff’s activities devoted to these particular duties. Plaintiff says that most of the outbound freight was handled at night, while he worked mostly days; that not much loading was done during his hours, but that, whatever took place, was under his direct charge. The defense testimony is that inbound and outbound freight was equally divided during the day — inbound usually during the night and outbound between 8 a. m. and midnight.

We believe none of the foregoing interpretations are helpful in determining this issue. Section 204 of the Motor Carriers Act is designed to provide safety in an efficient motor transportation system. United States v. American Trucking Association, 310 U. S. 534. There is no question that some part of plaintiff’s work week was devoted to the direction and supervision of the loading of interstate motor freight carriers. There is no question either that the loaders in his gang were exempted from section 7 of the Fair Labor Standards Act. We think, therefore, that with greater force, plaintiff comes within the exemption for, if the loaders are exempt because the manner in which they work affects the safety of the operation of defendant’s motor vehicles, certainly the duties of plaintiff, who planned and directed the loading, affect that safety. Considering the purpose of the Motor Carriers Act, we believe that the true determinant is whether an employee performs any duties which substantially affect the safety of operation, rather than whether the duties affecting safety are substantial.

We need consider no other point.

It is our conclusion that the finding that plaintiff is not exempted is erroneous as a matter of law and that the judgment based thereon should be and it hereby is reversed and the canse is remanded with directions to enter judgment for costs for defendant against plaintiff.

Judgment reversed and cause remanded with directions to enter judgment for.costs for defendant and against plaintiff.

Burke, P. J., and Lupe, J., concur.


text:
    Mary Leech, Appellee, v. John C. Newell, Appellant.
    Gen. No. 42,700.

      Opinion filed June 30, 1944.
    Rider & Thuma, of Chicago, for appellant; Chester D. Kern, of Chicago, of counsel.
    Julius H. Selinger, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a personal injury action with judgment for plaintiff upon a verdict of $7,500. Defendant appeals.

March 31, 1941, about 2:10 p. m. plaintiff, a nurse then 51 years old, was driving south on Union Avenue, Chicago, Illinois, accompanied by another woman, and her car collided with defendant’s car being driven east on 58th Avenne. As a result of the impact, her car struck a third car being driven north on Union Avenue. Plaintiff and her companion were thrown to the pavement and plaintiff was injured.

Defendant claims that plaintiff was guilty of contributory negligence as a matter of law in failing to accord his car the right of way and relies upon Rupp v. Keebler, 175 Ill. App. 619; McCarthy v. Fadin, 236 Ill. App. 300; and Riddle v. Mansager, 254 Ill. App. 68. The first case cited clearly holds that the first car to reach the crossing, in the exercise of ordinary care, should have the right of way and that others should approach with sufficient care to permit the exercise of that right without danger of collision. The McCarthy case, decided in 1925, with facts strikingly similar to those before us, would, assuming as true the version of the accident given by plaintiff, cast upon her the obligation of keeping out of defendant’s way. The Riddle case, decided in 1929, states the rule that one approaching from the right is favored over one approaching from the left unless the former is sufficiently far away, that if driven with due care it will not reach the intersection until the latter can pass. Plaintiff cites on this point the case of Partridge v. Enterprise Transfer Co., 307 Ill. App. 386, decided in 1940 by this court, where it was held that the legislature did not intend that the vehicle on the right should have the right of way regardless of its distance from the intersection and that under a reasonable construction of the Motor Vehicles Law, ch. 95%, sec. 165, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 85.197] the intention was that, where two vehicles at approximately the same time approach an intersection, the vehicle at the right has the right of way. We follow the rule in the latter case. Applying the uniform rule in determining whether there is any evidence of plaintiff’s due care, we find in the record testimony that the weather' was misty, visibility poor arid the pavement wet; that plaintiff was driving from 18 to 20 miles an hour in the west, lane of the southbound side of Union Avenue and reduced her speed to 4 or 5 miles an hour at the northwest curb where she looked west and observed defendant’s car more than a quarter of a block away, going east in the south lane of the eastbound side of 58th Street, about 35 miles an hour; that she accelerated her speed and entered the intersection at about 10 miles an hour and when about the center of the intersection, she looked west and saw defendant’s car was right alongside of her; that the collision occurred after she had passed the center of the intersection and that defendant’s car, which was going about 35 or 40 miles an hour 20 feet west of the west curb of Union Avenue, struck hers on the right side, proceeded across the intersection and stopped even with the east curb of Union Avenue; that plaintiff’s car skidded sidewise to the south and its left rear struck the front of a car northbound in the east lane for northbound traffic on Union Avenue; that its rear was then thrown west and its front east, where it collided with the rear of the northbound ear and came to rest. Under these circumstances we find that the question of plaintiff’s due care was for the jury.

Defendant contends that the inherent possibility of plaintiff’s story, in the light of physical facts, condemns it as unworthy of jury consideration. He says that under plaintiff’s story of the accident, if his car was going 35 or 40 miles an hour and struck plaintiff’s car, that it would not have been possible for her car to spin south along Union Avenue more than 100 feet to strike the northbound car. We point out as additional factors that the pavement was wet; that according to plaintiff’s story, she was driving in the west lane for the southbound traffic and the northbound car was in the eastbound lane. He also points to the condition of the cars following the accident. Photographs of plaintiff’s car disclose damage to the right side in the area involving the rear part of the front fender and the front part of the rear fender. Both front and rear fenders are dented, and the jury from viewing the photographs might well have concluded that the damage appears to he the result of direct force. Defendant’s car shows the principal damage to the area involving the left front and center, though the center-section of the bumper appears depressed, the grill at the center, and even at the right side, is damaged and there is a deep dent in the center of the hood near its top. This physical evidence leaves the inference that the plaintiff swerved slightly to the left and in that position received the direct impact of defendant’s car. It is not consistent with defendant’s story that he was stopped at the time of the impact, and clearly supports the testimony that the impact caused plaintiff’s car to slide southeast on the wet pavement, so that its left rear struck the front of the northbound car which, in turn, threw the rear of plaintiff’s car southwest, causing the left front to turn southeast and crash into the rear of the northbound car. Under these circumstances, we are of the opinion that plaintiff’s story is not inherently impossible, and that the case was proper for the jury.

The complaint charged that as a result of the collision plaintiff was thrown to the pavement and suffered, among other injuries, a severe injury to her brain. There was evidence that plaintiff suffered injury and accordingly the question of the extent of the injury proximately caused by defendant’s negligence, if found negligent, was for the jury. During the trial plaintiff and several of her witnesses testified with respect to her confinement in the psychopathic hospital pending an insanity inquisition by the County Court following the issuance of a writ therefor upon the sworn affidavit of a police officer. It appears that the police officer’s application was filed pursuant to an order of the Municipal Court judge following plaintiff’s rearrest after a hearing upon complaint of a woman whom she had assaulted, believing that the latter was pursuing an affair with Mr. Leech. There was testimony also that a month or so following the accident and about the time she had assaulted the woman, plaintiff had purchased an ice pick with which she had punctured the tires of her husband’s car. The testimony of this incident was in addition to the testimony that plaintiff’s personality appeared to undergo a distinct change for worse following the accident. There was no objection by defendant to the admission of the testimony respecting the ordering of the application for the inquisition, and her confinement in the psychopathic hospital and of the harmful effects of this experience upon plaintiff. The first objection made to any evidence with respect thereto was made when plaintiff’s counsel offered in evidence a certified copy of the proceedings of the inquisition. The court admitted the sworn application of the police officer, the order of the County Court issuing the writ of inquisition, and the finding of the Commission that plaintiff was not insane. Defendant introduced the Psychopathic Hospital Records of plaintiff’s health and behavior from day to day. The testimony regarding her experiences leading to and during her confinement in the psychopathic hospital, and that of the medical experts for both parties with respect thereto, must have emphasized those experiences as a principal element of plaintiff’s damage. It is conceded by plaintiff’s counsel that she was not insane and there is no claim that she was rendered insane by the accident. It is plaintiff’s contention that the injury to her brain caused a traumatic neurosis or psychosis and' that the circumstances surrounding the psychopathic proceedings constituted a fact which, with others, tend to prove the contention. Can these proceedings and the confinement of plaintiff in the psychopathic hospital, the inquisition into her insanity, and the harmful effects she suffered therefrom, be attributed to defendant’s negligence? We think the answer is obviously; no. The insanity proceedings were not commenced by defendant and they resulted in a finding that plaintiff was not insane. The commencement of these proceedings was an intervening cause in the succession of events proximately caused by the accident. Defendant cannot be charged with the harm suffered by plaintiff, caused by the error in judgment of k third person. We believe that serious error was committed in the introduction of the record of the proceedings into the insanity of plaintiff and that,' under the circumstances, defendant was greatly prejudiced and should have a retrial of the issues, free from the irrelevant and prejudicial testimony and the record referred to.

We have not considered the question of manifest weight or of the excessiveness of the verdict.

For the reasons given the judgment is reversed and the cause is remanded.

Judgment reversed and cause remanded.

Burke, P. J., and Lupe, J., concur*


author: Mr. Justice Lupe

text:
    John Toman, County Treasurer, Appellee, v. Mary Tufts, Defendant. Leo Brezinske and Amanda Brezinske, Appellants.
    Gen. No. 42,362.

      Opinion filed June 30, 1944.
    Shulman, Shulman & Abrams, of Chicago, for appellants ; Meyer Abrams, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for appellee; Joseph P. Burke, William J. Tuohy, Francis S. Clamitz, Marshall V. Kearney, Jacob Shamberg and Karel E. Rada, Assistant State’s Attorneys, of counsel.
   On Rehearing.

Mr. Justice Lupe

delivered the opinion of the court.

This appeal was taken from an order of the circuit court denying leave to appellants to intervene.

On June 29, 1934, the county treasurer of Coolc county instituted these proceedings wherein he sought to be appointed receiver under the Skarda Act for the purpose of collecting rent and- applying same toward the payment of delinquent taxes due on the property.

On July 9, 1934, he was appointed tax receiver, and was in possession of the property in the month of February 1942.

On June 30, 1937 a bill to foreclose was filed in the superior court of Cook county (No. 37 S 8498) involving the same property. Thereafter, in 1941, a second bill to foreclose was filed in the same court (No. 41 S 6450) by Leo Brezinske and Amanda Brezinske, appellants, as holders "of some of the bonds secured by the mortgage, seeking foreclosure and additional relief. By order of the superior court the causes were consolidated, and George F. Scheck was appointed receiver of the premises in question.

On February 2, 1942, Scheck as receiver, in pursuance to an order entered in the consolidated causes, sought leave to intervene in the tax foreclosure proceedings, which was allowed and set for hearing on February 3, 1942. He sought to obtain possession of the premises from the tax receiver. In his petition he alleged the tax receiver had permitted a lessee to accumulate a debt for rent in excess of $2,100; that a writ of assistance was ordered against the tenant but that the tenant had not been ousted; that, if the property became vacant, for the best interest of the bondholders and the State it would be necessary to remodel and rebuild it (the property being a warehouse) and thereby increase the income and improve its rent-ability; it would be necessary that receiver’s certificates be issued therefor and, unless the relief be granted, the bondholders and the State would suffer loss; that in a tax foreclosure proceeding the court lacked jurisdiction to grant relief pertaining to the necessary work to be done and the issuance of receiver’s certificates, that such relief could only be obtained in the superior court.

On February 3, 1942, appellants, as plaintiffs in the consolidated cause in the superior court, also sought leave to intervene in the present proceeding, and adopted by reference the intervening petition of Receiver Scheck. Appellants requested relief as prayed for by Receiver Scheck and, in addition thereto, that the tax receiver be ordered to account and to be surcharged with unpaid rent due because of his carelessness and mismanagement of the property.

On the same day the court struck Receiver Scheck’s petition and denied appellants leave to intervene, from which order this appeal is taken. Receiver Scheck did not join in this appeal, and we, therefore, are not called upon to determine if error had been committed in denying the relief sought by him.

Notice of appeal was filed on February 5, 1942, and thereafter served on the county treasurer and the state’s attorney. It is conceded Mary Tufts, the owner of the property, was not served with notice of appeal. The notice was filed to the Supreme Court, and that court transferred the cause to the Appellate Court on appellee’s motion. In appellee’s motion to transfer the cause it was urged that there was no question for direct review and that it was solely a question whether the appellants had a right to intervene. The Supreme Court having allowed the motion, there remain only the following questions to be decided: (1) Should the appeal be dismissed for failure to give notice to Mary Tufts; and (2) Did the chancellor err in denying leave to appellants to intervene, and in striking the receiver’s petition.

Appellee filed his motion to dismiss the appeal in this court for failure to serve Mary Tufts. Counter-suggestions were filed thereto, and we have taken the motion with the case.

Mary Tufts being the • owner of the property, appellee contends she was entitled to service of notice of appeal in accordance with rule 34 of the Supreme Court, and not having been served, the appeal should be dismissed.

Appellants argue that Mary Tufts was in default; it therefore became unnecessary to serve her. However, from an examination of the record we find that' leave was given and she filed her appearance and answer in the proceeding on February 17, 1942. No order of default was entered against her at any time. It necessarily follows that she was not in default. (Crabtree v. Green, 36 Ill. 278.)

It is contended by appellees that notice not having-been served on Mary Tufts her rights would be adversely affected by a reversal or modification of the order appealed from, on the theory that the property may become further encumbered by the issuance of receiver’s certificates. The question of issuance of receiver’s certificates was not before the circuit court to pass upon. There is grave question if the superior court would have authorized the issuance of receiver’s certificates. If application were made for the issuance of receiver’s certificates Mary Tufts would have received notice thereof and would have been given an opportunity to be heard.

Rule 34 of the Supreme Court is as follows: “A copy of the notice by which the appeal! is perfected shall be served upon each party, whether appellee or co-party, who would be adversely affected by any reversal or modification of the order, judgment, or decree, and upon any person or officer entitled by law to a notice of appeal, within ten days after said notice of appeal is filed in the lower court . . . .”

In view- of the allegations of the petitions of Receiver Scheck, and the appellants, seeking to compel the tax receiver to relinquish the property, to account, and that he be surcharged with items of loss of rent, could Mary Tufts’ rights he adversely affected by the order denying them the right to intervene ? Assuming that appellants were successful in their contention, would it not redound to the benefit of Mary Tufts ? We are of the opinion that she would so benefit. That being true, no notice was necessary to Mary Tufts as owner of the property, as her rights could not be adversely affected by the reversal or modification of the order herein appealed from.

Whether one will be permitted to intervene in a proceeding is a matter largely in the discretion of the court, and the holding of a trial court in reference thereto will not be disturbed unless a clear abuse is shown. The petitions of the receiver and appellants contained allegations of fact relative to the negligence of the tax receiver in the management of the property and his failure to collect rent, bringing about the loss of some $2,100, and requested that the tax receiver be required to account therefor. Leave should have been given appellants to file their petition and, as the petition of Deceiver Scheck had been adopted by them and made a part of their petition, that petition should not have been stricken. The tax receiver should have been required to answer and a hearing had, and a determination of the issues presented.

Appellants contend that the petition filed by the county collector did not allege sufficient facts to confer jurisdiction on the court. With this contention we cannot agree. On inspection of the petition we find the language of the statute was followed. Wh.en pleading according to the form prescribed by statute it is not necessary, in order to obtain the relief authorized by the act, to state more than the act requires. (Mullarky v. Trautvetter, 276 Ill. 409.)

An intervener cannot raise an issue as to the formality of pleadings or the regularity of procedure in the principal cause. He must take the suit as he finds it and is bound by the record of the case at the time of his intervention. (Am. & Eng. Encyc. of Law, 2nd ed., Vol. 17, p. 185; Wightman v. Evanston Yaryan Co., 217 Ill. 371.)

Appellees contend that appellants had no right to intervene, and say that they hold only about two per cent of the total bond issue being foreclosed; that they had no right of possession, that right being either in the trustees or in the receiver appointed in the superior court; and that having no possessory rights they were not entitled to intervene. Appellants were parties plaintiff in the consolidated cause which sought the foreclosure of the trust deed and it was upon their motion that the receiver of the superior court was appointed. They, with other bondholders, had a direct interest in that proceeding and in the payment of delinquent taxes which would affect the amount of their recovery in the foreclosure proceeding.

We are not indicating that the circuit court should grant the prayer of the petition. However appellants should be permitted to file their petition, the county collector should be required to answer, and a hearing' had on the issues made.

For the reasons stated, the motion to dismiss the appeal is denied, the order of the circuit court of Cook county is reversed and remanded with directions that appellants be given leave to file their intervening petition in this cause, that leave be granted the county collector to answer, that a hearing be had upon the intervening petition and the answers thereto, and that such other proceedings be had as may not be inconsistent with the views expressed herein.

Reversed and remanded with directions.

Burke, P. J., and Kilby, J., concur.


author: Justice Bristow.

text:
    Signal Hill Oil Corporation of Illinois, Appellant, v. Haynes-Thomas Drilling Corporation et al., Defendants. Haynes-Thomas Drilling Corporation and Charles Burke, Appellees.
    opinion filed May 26, 1944;
    rehearing denied August 28, 1944.
    Lord, Bissell & Kadyk, for appellant; Spaulding F. Glass and John F. Shallenberger, of counsel; Howard Martin, William A. Miller and Alfred S. Pfaff, for appellees.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Presiding Justice Burke.

text:
    Ethel Barnes Jones, Appellee, v. Hillary Ray Jones, Appellant.
    Gen. No. 43,012.

      opinion filed June 30, 1944.
    Aaron H. Payne, of Chicago, for appellant. Prescott, Burroughs & Taylor, of Chicago, for appellee; Euclid L. Taylor and Patrick B. Prescott, Jr., both of Chicago, of counsel.
   Opinion by

Presiding Justice Burke.

Not to be published in full.


author: Justice Kiley.

text:
    Stanley R. Pierce, Appellant, v. Charles E. Castle et al., Defendants. Francis Tyler Pierce, Individually and as Executor of Estate of Lucy Pierce Castle, Deceased, Appellee.
    Gen. No. 42,645.
    opinion filed June 30, 1944.
    Wilhartz & Hirsch, of Chicago, for appellant; Samuel E. Hirsch, Julian H. Levi and William Ruger, all of Chicago, of counsel. Madigan & Thorsen, of Chicago, for appellee; Robert Thorsen, of Chicago, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    La Crosse Manufacturing Company, Appellee, v. Max A. Springer and Lena M. Springer, Appellants.
    Gen. No. 42,668.
    opinion filed June 30, 1944.
    B. M. Steiner, of Chicago, for appellants. Herbert A. Schryver, of Chicago, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Joseph Campione, Plaintiff in Error.
    Gen. No. 42,988.
    opinion filed June 30, 1944.
    Mayer Goldberg, of Chicago, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., of Chicago, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Justice Lupe.

text:
    Max Rittenberg, Appellant, v. Frank J. Murnighan et al., Appellees.
    Gen. No. 42,565.
    opinion filed June 30, 1944.
    Shulman, Shulman & Abrams, of Chicago, for appellant; Meyer Abrams, of Chicago, of counsel. Nash, Ahern, McDermott & McNally, and David H. Brill, all of Chicago, for certain appellees; Martin J. McNally and Jacob G. Grossberg, both of Chicago, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    H. Simon, Trading as Public Electric Construction Company, Appellee, v. Albert J. Horan, Bailiff of Municipal Court of Chicago, Calumet Coal Company, Defendants. Appeal of Calumet Coal Company, Appellant.
    Gen. No. 42,827.
    opinion filed June 30, 1944.
    Peden, Ryan & Andreas, of Chicago, for appellant; Gerald Ryan, of Chicago, of counsel. Miller, Kamenear & Margolis, of Chicago, for appellee; Samuel S. Cohon and Sidney J. Sparberg, both of Chicago, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    Bernice Paul, V. I. Ohrenstein and Sophie Gapshis, Appellees, v. Joseph D. Stewart, Appellant.
    Gen. No. 42,901.

      opinion filed June 30, 1944.
    Olis, Vasalle & Lapinskas, of Chicago, for appellant. V. I. Ohrenstein, of Chicago, for appellees; Irene M. Lefkow, of Chicago, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.