text:
    Sine Rasmussen, Appellee, v. Oliver L. Mitchell and Iver O. Eide, Appellants.
    Gen. No. 42,877.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filled February 28, 1944.
    Rehearing denied March 14, 1944.
    Victor C. Rehm, of Chicago, for appellants.
    Cloyes & Cavender, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendants appeal from a decree canceling a second mortgage note and trust deed given by plaintiff to Oliver L. Mitchell, the principal defendant, as part of a transaction whereby the plaintiff refunded a prior foreclosed first mortgage held by Mitchell with the proceeds of a Home Owners’ Loan Corporation mortgage. The decree further directed that defendant Bide, trustee in the trust deed canceled, execute and deliver a release of the trust deed and that defendants pay $138.25, being one half of the master’s fees taxed in the case. Plaintiff cross-appeals, charging that the trial court erred in not decreeing the payment to her of $307.88, being principal and interest paid to Mitchell upon the second trust deed, and in taxing against her one half of the master’s fees.

In 1925 plaintiff and her husband, deceased prior to the institution of suit, purchased the premises involved, subject to a trust deed securing principal notes for $10,000; in August 1933, Mitchell, as owner and holder of the notes, instituted foreclosure proceedings; in the early part of 1934 plaintiff and her husband began negotiations for a loan with .the H. O. L. C., and on May 2 Mitchell executed a mortgagee’s consent to take bonds, wherein it was recited, “undersigned hereby consents, if said refunding can be consummated, to accept in full settlement of the claim of the undersigned the sum of $6,365 face value of the bonds of Home Owners’ Loan Corporation, . . . and thereupon to release all the claim of the undersigned against said property.” The next day this consent was forwarded to the H. O. L. C. by Mitchell’s attorney, with a letter stating, “I am enclosing herewith consent of Oliver L. Mitchell ... to take a reduced amount of bonds as per your distribution schedule. The home owner is going to give my client a second mortgage for the difference.” On May 11 the H. O. L. C. wrote Mitchell’s attorney, saying, “The solution which you suggest for, completion of this file, namely that your client accept a second mortgage for the difference, is satisfactory if the terms of such additional mortgage pass the examination of this corporation. Of course, it would defeat your own purpose if the owner would undertake a subsequent mortgage large enough to embarrass him in paying us. In each similar case we must now require that a copy of any such mortgage be submitted to us before we can grant the loan.” At this time the total amount due Mitchell, including costs and attorney’s feés in the foreclosure proceeding, was $9,436.60. The property involved was improved by a building which had originally been a 3-flat building but which had been divided into five 1-room and nine 2-room furnished units which plaintiff and her husband rented. An H. O. L. C. appraisal obtained in February 1934 fixed the value of the property at $9,784. May 18, 1934 plaintiff and her attorney and Mitchell and his attorney submitted to an employee in the H. O. L. C. offices the trust deed sought to be canceled and the note secured thereby; this note was for $2,500, payable $50 on June 21, 1934 and $50 on the 21st day of each month for 34 months, and a final payment of $750 on May 21, 1937, with interest at 6 per cent per annum. The evidence as to what took place in the H. O. L. C. offices is unsatisfactory. There is no record or notation in the files of the H. O. L. 0. showing approval of this trust deed. Under date of June 8, 1934 plaintiff and her husband executed and delivered to the H. O. L. 0. a first mortgage on the premises involved, securing their principal promissory note of that date for $7,825, payable $61.89 each month. This mortgage was recorded June 20, 1934; about June 26, 1934 the H. O. L. C. delivered to Mitchell bonds and cash aggregating $6,365; the Mitchell mortgage was recorded August 1, 1934, and before the present suit was started plaintiff had paid $225 on the principal and $82.88 interest upon it.

Plaintiff contends that the Mitchell mortgage, and note secured thereby, are in contravention of Mitchell’s consent to take bonds in full settlement of his claim, and contrary to H. O. L. C. regulations which forbid the taking of a second mortgage for more than the difference between its appraisal and the amount of its first mortgage or the taking of a second mortgage in terms that would make the mortgagor’s payments to the H. O. L. C. a hardship, and that the Mitchell mortgage was not approved by the H. 0. L. C. Defendants contend that the regulations relied upon by plaintiff were not in force and effect at the time the Mitchell mortgage and. note were delivered and accepted, that the mortgage and note were executed and delivered to Mitchell with the knowledge and consent of the H. 0. L. C., and that if any wrong was committed, plaintiff was in pari delicto with defendants and not entitled to relief in a court of equity.

Similar cases have been frequently before the courts. The Home Owners’ Loan Act of 1933 was an emergency measure the purpose and'intent of which was to free the owner’s home property from an oppressive mortgage or other liens, and to reduce and settle his other obligations so as to give him a chance to become rehabilitated. To this end the corporation required the consent of the mortgagee to accept a certain sum in full settlement of his lien against the home property, or permitted the taking of a second mortgage for additional sums where the amount of the second mortgage and the mortgage to the corporation did not exceed its appraised value of the property and where the terms and conditions of payment of the second mortgage did not impose an oppressive burden on the home owner and render completion of payments under both mortgages unlikely. Second mortgages, taken without the knowledge and consent of the corporation, are generally held void as contrary to public policy. Bealkowski v. Powers, 310 Ill. App. 662; Brown v. Sears, Roebuck & Co., 311 Ill. App. 490; Meek v. Wilson, 283 Mich. 679; McAllister v. Drapeau, 14 Cal. (2d) 102, 92 P. (2d) 911.

We pass as without merit the contention of defendants that the rules and regulations received in evidence, prohibiting the taking of a second mortgage or trust deed for more than the difference between the H. O. L. C., appraisal and the amount of its first mortgage, or the taking of such second mortgage or trust deed when its terms would make the mortgagor’s payments to the H. 0. L. C. a hardship, are invalid. The transactions before us occurred when the corporation was in its formative period. The act creating it (12 U. S. C. A., § 1463) provided that the board of the Federal Home Loan Bank was authorized and directed to create the H. 0. L. C., which shall be under the direction of the board and operated by it under such bylaws, rules and regulations as it'may prescribe, and that the members of the board shall constitute the board of directors of the H. 0. L. C. The rules and regulations here involved were promulgated by the members of the board of the Federal Home Loan Bank, as directors of the H. 0. L. C., and several months after the transactions involved here were completed the rules and regulations were ratified by the same persons acting as the board of the bank. Defendants contend that as directors of the H. 0. L. C. these persons had no authority to set up rules and regulations for its conduct. The business of the H. 0. L. C. was conducted under these rules and regulations, and through pretended compliance with them defendants obtained $6,365 in bonds and cash, which they still retain. They cannot now be heard in an attack on their validity.

In 1934, when the Mitchell mortgage was given, plaintiff was 67 years of age; her husband, a bricklayer, had been injured in 1918 in the course of his employment and wholly incapacitated for work; plaintiff and her husband had no income other than that derived from the renting of the rooms in the building secured by the mortgage, and had no other property ; none of the units had a private bath or toilet; the total rental received at the time of the trial would be $260 a month if all the units were rented; this was lower than the rentals of the best year, 1934, when during the World’s Fair, although the steady renting was poor, units not occupied by tenants were let to transients; in 1933 the income was so small that plaintiff was unable to pay her bills. By the new arrangement of refinancing, through the H. 0. L. C. and the Mitchell mortgage, plaintiff and her husband were required to pay approximately $61 a month on each mortgage; in addition they were required to pay the taxes, amounting to not less than $175 a year, provide heat, janitor service, cleaning, light, gas, insurance, repairs, refurnishing of the rooms, and food and clothing for themselves. It is apparent that if all the rooms were at all times rented (a condition vainly to be hoped for) plaintiff and her husbarid could not meet the obligations imposed by the two mortgages. As before stated, the files of the H. 0. L. C. bear no record of the approval of this second mortgage. Plaintiff’s former attorney, who closed the H. 0. L. C. transaction for her, and defendant Mitchell, do not testify that any representative of the H. 0. L. C. approved the mortgage. Mitchell’s attorney testified that Germer, who was employed by the H. 0. L. C. principally as an interviewer, looked at the papers and said they would .be all right and the deal could be closed promptly. The H: 0. L. C. attorney who closed the transaction and received plaintiff’s mortgage, testified that he had no knowledge of a second mortgage and no authority to pass qn one. Germer stated that to his knowledge he had never consented to any second mortgage but that these were referred to the head of the department. Other employees of the H. 0. L. C. were called to testify. None knew anything of the approval of the mortgage. Plaintiff testified that she was asked by Germer if she could pay the bills, and she said she wasn’t sure — there were $61 on each mortgage every month; that Germer then went out with the papers and the two lawyers jumped on her and asked why she did not give a better answer. No conscientious employee of the H. 0. L. C., mindful of the purposes for which the corporation was organized, could have approved the Mitehell mortgage, as it was impossible of performance. Furthermore, the two mortgages exceeded the H. O. L. C. appraised value which, in order to accomplish the purposes of the act, we may expect to be more liberal than appraisements made for loans in the ordinary course of business. The employee who passed upon the question whether a second mortgage would be permitted, testified that he knew of no instance in which a second mortgage had been approved where the second mortgage, plus the H. 0. L. C. first mortgage, exceeded the H. 0. L. C. appraised value of the property. In this state of the record the master’s conclusion that the evidence as a whole did not warrant a finding that the H. 0. L. C. had approved the Mitchell mortgage must be sustained.

Defendants further contend that if this mortgage was in violation of the rules and regulations of the H. 0. L. C., plaintiff is equally to blame and a court of equity should not grant her relief. It is evident from the record that plaintiff realized the excessive burden she was assuming and that only the necessity of her situation compelled her to acquiesce in the arrangement. She was not in pari delicto with the defendants.

The Mitchell mortgage, being void and unenforceable, and plaintiff being entitled to relief, the decree should have provided for the repayment to her of $307.88, principal and interest paid on account of it (Meek v. Wilson, 283 Mich. 679, 278 N. W. 731; McAllister v. Drapeau, 14 Cal. (2d) 102, 92 P. (2d) 911) and all costs, including the master’s fees, should have been taxed against the defendants. (Peoples Gas Light & Coke Co. v. Gibbons, 219 Ill. App. 388.)

The decree of the circuit court of Cook county is reversed and the cause remanded with directions to the circuit court of Cook county to modify the decree in accordance with this opinion.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: Justice Wolfe.

license: Public Domain

text:
    C. H. Larson, Appellant, v. Walter K. Johnson, Administrator, and Axel Emil Johnson, Appellees.
    Gen. No. 9,921.
    Heard in this court at the October term, 1943;
    opinion filed January 26, 1944;
    rehearing denied March 22, 1944.
    Frank E. Maynard, for appellant; J. E. Goembel and Robert E. Nash, for appellees.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Justice Burke.

text:
    Agnes Neering, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 41,999.

      Heard in the third division, first district, this court at the October term, 1943;
    opinion filed February 2, 1944.
    John W. Freels and Herbert J. Deany, for appellant; Edward C. Craig, Vernon W. Foster and Charles A. Helsell, of counsel; Ringer, Reinwald & Sostrin, for appellee; M. Lester Reinwald and Morris Sostrin, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    C. E. Smalley, Appellant, v. John S. Lord, Agent in Fact for Underwriters at Lloyd’s, London, Appellee.
    Gen. No. 42,681.
    Heard in the third division, first district, this court at the June term, 1943;
    opinion filed February 2, 1944;
    rehearing denied March 7, 1944.
    Hansen & Hansen, for appellant; Leith M. Hansen, of counsel; Lord, Bissell & Kadyk, for appellee; Fred E. Inbau, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    James Witkowsky et al., Appellees and Cross Appellants, v. Ravisloe Country Club, Appellant and Cross Appellee.
    Gen. No. 42,704.

      Heard in the third division, first district, this court at the June term, 1943;
    opinion filed February 2, 1944.
    Jacobson, Nierman & Silbert, for appellant and cross appellee; Lewis F. Jacobson, of counsel; Wolff, Keane & Gomberg, for appellees and cross appellants; Allan I. Wolff, Jr., of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Kiley.

text:
    Peter Tulupan, Appellee, v. J. Casper Sauer, Appellant.
    Gen. No. 42,330.
    Heard in the third division, first district, this court at the October term, 1942;
    opinion filed February 2, 1944.
    Bernard W. Vinissky and Julius S. Neale, for appellant; Meyer A. Ginsburg and Otto W. Berg, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Freda Richter, Appellant, v. Walter J. Cummings and Daniel C. Green, Receivers of Chicago Railways Company et al., Appellees.
    Gen. No. 42,389.

      Heard in the third division, first district, this court at the October term, 1942;
    opinion filed February 2, 1944.
    Harry George, for appellant; Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for appellees; William J. Flaherty, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Catherine Luse, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,433.
    Heard in the third division, first district, this court at the October term, 1942;
    opinion filed February 2, 1944.
    Barnet Hodes, Corporation counsel, for appellant; James A. Velde and L. Louis Karton, Assistant corporation counsel, of counsel; Erwin W. Roemer, for appellee; Charles T. Shanner, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Steve Janitch, Appellee, v. Coca Cola Bottling Company of Chicago, Inc., Appellant.
    Gen. No. 42,619.
    Heard in the third division, first district, this court at the April term, 1943;
    opinion filed February 2, 1944.
    James A. Dooley, for appellant; Ringer, Reinwald & Sostrin, for appellee; Morris Sostrin, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Presiding Justice Friend.

text:
    Sunbeam Heating Company, Inc., Plaintiff, v. Edward W. and Mary C. Chambers, and George and Annie Tomes et al., Defendants. Albert E. Lake, Petitioner, and Peter A. Grosso, Respondent. Appeal of Albert E. Lake et al., Appellants. Peter A. Grosso, Appellee.
    Gen. No. 42,591.

      Heard in the second division, first district, this court at the February term, 1943;
    opinion filed February 10, 1944;
    rehearing denied March 9, 1944.
    Albert E. Lake, for appellants; Joseph B. Gilbert, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 42,653.
    Heard in the second division, first district, this court at the April term, 1943;
    opinion filed February 10, 1944.
    Petit, Olin & Overmyer, for appellant; Adelor J. Petit, Jr., of counsel; Jacob G. Grossberg and Harry May, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    E. J. Powers, Appellee, v. Oscar E. Erickson, Trading as The Leader, Bismarck, North Dakota, Appellant.
    Gen. No. 42,739.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed February 10, 1944.
    Ekern, Meyers & Matthias, for appellant; Donald L. Thompson and William G. Chorn, of counsel; J. F. Novotny and Urion, Bishop & Sladkey, for appellee; Jerome J. Sladkey, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Betty Gomez, Appellee, v. Isadore Rosenblatt, Trading as Silver Rail, Appellant.
    Gen. No. 42,850.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed February 10, 1944.
    Wolfberg & Kroll, for appellant; Coghlan & Coghlan, for appellee; John P. Coghlan and Thomas F. Allman, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Elizabeth Schaffner, Administratrix of Estate of Frank Schaffner, Deceased, Appellant, v. B. and W. Auto Sales Company et al., Defendants. B. and W. Auto Sales Company, Appellee.
    Gen. No. 42,279.
    Heard in the second division, first district, this court at the June term, 1942;
    opinion filed February 10, 1944.
    Joseph Barbera and Felix Silverstein, for appellant; Miller, Gorham, Wescott & Adams, for appellee; Edward R. Adams and William Simon, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    Joseph Bucko, Sr. and Mary Bucko, His Wife, Plaintiffs Below. Joseph Bucko, Sr., Appellant, v. Joseph Bucko, Jr. et al., Appellees.
    Gen. No. 42,093.

      Heard in the second division, first district, this court at the December term, 1941;
    opinion filed February 10, 1944.
    Francis Heisler and Stanley F. Evans, for appellants; Jacob Levy, for appellees; Edward McTiernan, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Albert E. Gill, Appellant, v. Paul Lewin and Alphonse Boone, Defendants Below. Paul Lewin, Appellee.
    Gen. No. 42,546.
    Heard in the second division, first district, this court at the February term, 1943;
    opinion filed February 10, 1944.
    Charles C. & Richard M. Spencer, for appellant; no appearance for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Central States Manufacturing and Sales Corporation, Appellant, v. Link-Belt Company and Albert J. Horan, Bailiff, Appellees.
    Gen. No. 42,612.
    Heard in the second division, first district, this court at the April term, 1943;
    opinion filed February 10, 1944;
    rehearing denied March 9, 1944.
    George M. Tearney, for appellant; Allen & Darlington, for appellees; Glynn J. Elliott, of counsel.
   Opinion by

Justice Sullivan.

Not to be published, in full.


text:
    Lillian Eschner, Appellee, v. Peoples Radio Stores, Inc., Appellant.
    Gen. No. 42,631.
    Heard in the see'ond division, first district, this court at the April term, 1943;
    opinion filed February 10, 1944.
    Lewis W. Schlifkin and Edwin M. Katz, for appellant; Paul R. Shanoff, for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    First United Finance Corporation, Appellee, v. Joseph Vanek et al., Appellants.
    Gen. No. 42,709.
    Heard in the second division, first district, this court at the June term, 1943;
    opinion filed February 10, 1944;
    rehearing denied March 9, 1944.
    Ward H. Harris, for appellants; McCabe, Abrahams & Daly, for appellee; Harry Abrahams, of counsel.
   Opinion by

Justice Sullivan.

Not to be published, in full.


text:
    People of the State of Illinois, Defendant in Error, v. Joseph G. Hebert, Plaintiff in Error.
    Gen. No. 42,725.

      Heard in the second division, first district, this court at the December term, 1943;
    opinion filed February 10, 1944.
    Jack L. Sachs and Cameron Latter, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    John J. Phillips, Appellee, v. Robert White et al., Appellants.
    Gen. No. 42,832.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Ross, Berchem & Schwantes, for appellants; no appearance for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Presiding Justice O ’Connor.

text:
    William B. Berry, Appellee, v. William W. Vincent, Appellant.
    Gen. No. 42,852.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Leslie H. Whipp, for appellant; Robert Irmiger, for appellee; James J. Cusack, Jr. and John F. Cusack, of counsel.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Margaret E. Kabana, Plaintiff in Error.
    Gen. No. 42,862.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944;
    rehearing denied March 14, 1944.
    Elmer Gertz and George G. Rinier, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    In re Estate of Johanna E. Schaffhauser, Deceased. Flora M. Gaebel, Executrix of Last Will and Testament of Johanna E. Schaffhauser, Deceased, Appellant, v. Trust Company of Chicago, Administrator De Bonis Non with Will Annexed of Estate of Johanna E. Schaffhauser, Deceased, Appellee.
    Gen. No. 42,874.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    G. A. Buresh, for appellant; Victor G. Nardi, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Frank J. Hubka, Administrator of Estate of Frank Bruce Hubka, Deceased, Appellant, v. Ray E. McCormick and Alice D. McCormick, Appellees.
    Gen. No. 42,884.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    C. Helmer Johnson, for appellant; Thomas H. Murray, of counsel; Eckert & Peterson, for appellees; A. R. Peterson and Owen Rall, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in fuU.


text:
    Samuel T. Cohen, Appellant, v. Benjamin Oguss et al., Appellees.
    Gen. No. 42,975.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944;
    rehearing denied March 14, 1944.
    Andalman & Andalman and S. G. Lippman, for appellant; Maxwell N. Andalman, of counsel; Louis M. Mantynband and George L. Siegel, for certain appellee; Henry Tiersky, for certain other appellees.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Matchett.

text:
    Morris Gelman, Appellee, v. C. F. Wendrick, Jr., Appellant.
    Gen. No. 42,829.
    Heard in t' first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Hoyne, O’Connor, Rubinkam & Melaniphy, for appellant; John C. Melaniphy, of counsel; Joseph H. Platt, for appellee.
   6 ' 'ion by

Justice Matchett.

Not to be published in full.


text:
    Lawrence Schiro, Appellee, v. Walter J. Cummings, Receiver, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,880.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944;
    rehearing denied March 14, 1944.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; Cohon & Goldstein, for appellee.
   Opinion by

Justice Matchett.

Not to he published in full.


author: Justice Niemeyer.

text:
    Margery A. Hogg and Dorothy E. Brown, Appellants, v. Fannie May Candy Shops, Inc., Also Known as Illinois Fannie May Candy Company and Chicago Fannie May Candy Company, and Robert Innes, Appellees.
    Gen. No. 42,762.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter, L. H. Vogel and Anthony S. Ras, of counsel; Otto M. Hamer, for appellees; Chester D. Kern, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Chicago Title and Trust Company, Appellee, v. Delaware Place Building Corporation et al., Defendants Below. Appeal of B. E. Schontag, Appellant.
    Gen. No. 42,816.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Julius J. Schwartz, for appellant; Julius J. Schwartz and Bernard Savin, of counsel; Miller, Gorham, Wescott & Adams, for appellee; Herbert C. De Young and Sidney S. Gorham, Jr., of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Daisy C. Tegtmeyer, Appellant, v. Sun Indemnity Company of New York, Appellee.
    Gen. No. 42,838.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Herbert M. Wetzel, for appellant; Charles E. Selleck, of counsel; McKenna & Harris, for appellee; James J. McKenna and Henry H. Koven, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Josephine Durbin, Appellee, v. Sam Ferdman and Bernard M. Sharpe, Defendants. Sam Ferdman, Appellant.
    Gen. No. 42,846.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Lord, Bissell & Kadyk, for appellant; Leonard F. Martin, Guy C. Baltz and Edward S. Crowell, of counsel; Irving G. Zazove, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Carl H. Burckhardt, Appellee, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 42,855.
    O’Connor, P. J., specially concurring.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944.
    Knapp, Cushing, Hershberger & Stevenson, for appellant; Harlan L. Hackbert, of counsel; William Wallace McCallum, Marion J. Hannigan and Wendell H. Shanner, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    George D. Hardin, Appellee, v. Village of Westchester et al., Appellants.
    Gen. No. 42,919.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944;
    rehearing denied March 14, 1944.
    George Sass and Kinne, Scovel, Robson and Murphy, for certain appellants; Bluford, Krinsley, Schultz & Voorheis, for certain other appellants; Raymond Harkrider, of counsel; McCulloch & McCulloch, for appellee; Hugh W. McCulloch, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Chicago Title and Trust Company et al., Appellees, v. Village of Westchester et al., Appellants.
    Gen. No. 42,920.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed February 28, 1944;
    rehearing denied March 14, 1944.
    George Sass and Kinne, Scovel, Robson & Murphy, for certain appellants; Bluford, Krinsley, Schultz & Voorheis, for certain other appellants; Raymond Harkrider, of counsel; Markman, Donovan & Sullivan and George S. Freudenthal, Jr., for appellees; Henry O. Nickel, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Mr. Presiding Justice Culbertson

text:
    Woodson K. Woods and Sarah Inez Caldwell, Appellants, v. Old National Bank of Centralia, Illinois, Appellee.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Pope & Driemeyer, of East St. Louis, for appellants.
    Murray & Murray, of Centralia, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal by appellants, Woodson K. Woods and Sarah Inez Caldwell, from whát appellants contend was a final judgment of the circuit court of Marion county, Illinois, dismissing appellants’ amended complaint on motion of appellee, Old National Bank of Centralia. Appellee has filed its motion to dismiss the appeal of appellants, substantially upon the ground that no final order, decree, or judgment has been entered in this cause by the circuit court of Marion county, Illinois, from which an appeal could be taken in this case. The order of the circuit court of Marion county, from which the appeal is ostensibly taken, is noted upon the judge’s docket, under date of March 29, 1943, in the following language:

“The record in this case shows that on October 26, 1942, this court, Judge Bullington presiding, sustained the motion of the Old National Bank to dismiss the amended complaint of the plaintiffs; that the plaintiffs on their motion on January 11, 1943, caused this court to dismiss their suit as to the two remaining defendants, C. E. Lange and Anna Lange. This court is now advised that plaintiffs desire to abide by their amended complaint and refuse to plead further and without waiving any of" their objections to the order entered on October 26,1942, request the court to enter final judgment herein, in order that an appeal may be perfected by the plaintiffs. Judgment is therefore rendered dismissing the amended complaint at the costs of the plaintiffs. Judgment is also rendered in favor of the defendant Old National Bank of Centralia, Illinois, in bar of the action and for costs. The clerk of this court will notify counsel for both parties of the entry of this judgment order and counsel for the parties will submit to the court who entered the order sustaining the motion to dismiss- — Judge Bullington — an order in accordance therewith for approval.
“Counsel for defendant Old National Bank present in court and the court has a letter from Judge Burnside advising him of the' request of counsel for plaintiffs and a tentative order which the court has not approved and will not until counsel for Old National Bank has an opportunity to be heard.”

The foregoing notation appears upon the judge’s docket as minutes entered by the judge, or docket entries made by him, and it is contended by the appellee that such entries do not constitute a final judgment from which an appeal can be taken. It is pointed out that the entries made upon the judge’s docket are made there solely for the convenience of the court, and do not constitute a court record (McCormick v. Wheeler, Mellich & Co., 36 Ill. 114, 120, 121; Lindblom v. Purity Ice & Refrigerating Co., 217 Ill. App. 306, 308; Hall v. Robertson, 213 Ill. App. 147, 151).

It is, likewise, pointed out that it is the practice in chancery cases such as the one before the court in the instant case, to have decrees drawn by the solicitor, and when approved by the court, to have such decrees entered of record by the clerk; that it is the- entry on the record by the clerk that gives it validity, and that a decree is not final merely because it has been announced by the chancellor, or reduced to writing in the court’s minutes, but that the matter is completely under control of the chancellor until the final decree has been filed or recorded and may be changed or modified until it has been approved and filed for record (Hughs v. Washington, 65 Ill. 245, 249; Horn v. Horn, 234 Ill. 268, 274).

We have noted that in a proceeding adjudicated in our Supreme Court, in which the trial court sustained a motion to dismiss a complaint and dismissed the action at the cost of the plaintiff, and that plaintiff had elected to stand by the complaint, it has been determined that such notations, when entered by the trial court, constituted a final and appealable order, for the reason that the order dismissed the suit, assessed costs against the plaintiff, and, apparently, disposed of the case finally and reserved nothing for the court to do (Doner v. Phoenix Joint Stock Land Bank, 381 Ill. 106).

In the case before us, if the court had stopped in the recital referring to a dismissal of the amended complaint at the cost of the plaintiffs, and the rendition of judgment in favor of the defendant, in bar of.the action and for costs, the motion to dismiss, the appeal would not have been well taken. The fact, however, that the court specifically goes on to say that counsel for both parties are to he notified of the action of the court and are to submit to the judge an order in accordance therewith for approval, and specifically, to the effect that a tentative order has not been approved by the court and will not be approved by the court until counsel for one of the parties has an opportunity to be heard, it cannot be said that the action of the court, under such circumstances, was a final one and disposed of the ease so that there was an appealable order which had been entered by the court. Presumably, the matter was still within the control of the court, and despite the previous notations entered on the docket, a final decree entered by the court might have been modified or entirely changed by the court, upon further reflection, if the court was convinced that the equities of the case required it.

In view of the state of the record we must, therefore, conclude that the recitals in the judge’s docket, set forth herein, did not constitute a final judgment, from which an appeal could be taken, and that the motion to dismiss the appeal .should be granted. This appeal will, accordingly, be dismissed for the reasons stated.

Appeal dismissed.


text:
    Elmer Benefiel, Appellee, v. Pure Oil Company, Appellant.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Smith, McCollum & Higgle, of Flora, and Vinson, Elkins, Weems & Francis and Allen C. Hutcheson, Jr., all of Houston, Texas, for appellant.
    Milo D. Yelvington, of Newton, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This in an appeal from a judgment of the circuit court of Jasper county, in the sum of $435, and costs, in favor of appellee, Elmer Beneflel (hereinafter called plaintiff), and as against appellant, The Pure Oil Company (hereinafter called defendant).

The evidence discloses that the defendant was the lessee of certain premises in Jasper county pursuant to an oil and gas lease, upon which wells were drilled and in which certain “blow-pits” were constructed for the purpose of receiving sediment and other impurities drained from the tanks. It was the normal, usual practice to use such pits in connection with oil well construction and production. Several months after the oil company, lessee, had been operating three oil wells on the land under such lease, an agricultural lease of the same premises was given to plaintiff, subject to the oil lease then in force thereon. In the latter part of September 1942, two of the cattle belonging to the plaintiff, which were being pastured on the premises by the plaintiff, were found dead and a third became sick and died on the following morning. Plaintiff instituted an action against the oil company in a justice of the peace court, in which action judgment was entered against defendant, and. the case was appealed by defendant and tried de novo in the circuit court of Jasper county, before a jury. It was plaintiff’s contention that the cattle died from the effects of drinking oil, salt water, or other refuse out of defendant’s blow-pits. At the close of the evidence the defendant filed a motion for directed verdict, but the court below refused to direct the verdict in favor of defendant and entered judgment on the verdict of the jury, in favor of plaintiff, in the sum of $435, and costs. A number of errors are assigned by defendant, but the basic question for determination by the court below, and for the determination of this court, is whether or not the lessee oil company was negligent in failing to fence the blow-pits so as to keep plaintiff’s cattle from drinking therein.

As pointed out in Summers Oil and Gas, permanent edition, section 652, the lessee, under an oil and gas lease, has the right to possession of so much of the surface of the land as is reasonably necessary to enable such lessee to perform the obligations imposed upon him by the lease. Such lessee may dig slush pits and drainage ditches, and construct storage tanks, under the ordinary form of producer’s lease. A subsequent agricultural lessee of the same premises (such as plaintiff) has an interest which is servient to the dominant right of the oil and gas lease first granted for the use of the premises, in a manner consistent with the rights therein granted. It is thus apparent that the defendant in the instant case would not be liable to the plaintiff • for any damages sustained by plaintiff, in the absence of negligence on part of defendant. The only question which arises, therefore, in the case before us, is whether the failure of the defendant to fence the blow-pits to keep plaintiff’s cattle out, constituted a breach of duty to plaintiff so as to impose liability on defendant.

As an aid to consideration of the issue before this court it should be observed that the rule has established in. this State that it is the duty of the owner of animals to keep them fenced in to avoid trespass on land in possession of another, and it is not the duty of the owner of land to fence such trespassing animals out (Bulpit v. Matthews, 145 Ill. 345).

It is the contention of the defendant in this cause that under its prior oil and gas lease it was entitled to exclusive possession of the land upon which the blow-pits were constructed, and that plaintiff’s cattle, in legal effect, were trespassers when they got in or around such pits. We cannot agree that in all cases which might arise that a prior holder of an oil and gas lease would have no duty to the livestock of a subsequent agricultural lessee other than not to engage in wilful and wanton conduct which might injure such livestock. The only question before the court in the instant case is whether or not there is a positive obligation upon the prior oil and gas lessee to construct fences around the blow-pits for the purpose of protecting the cattle of the subsequent agricultural lessee.

We have not been cited to any Illinois case, nor have we been able to discover a case in this jurisdiction, determining this specific question. An identical case, however, has been directed to our attention, which arose in the State of Texas. In the case of Pitzer S West v. Williamson (Tex. Civ. App.), 159 S. W. (2d) 181, an action had been instituted for damages to livestock caused from drinking refuse near oil wells operated by the defendants in that case. The court in that case states:

“We have been cited to no authority, nor have we found anything discussing the duty of an oil operator to fence the area used in his operations, in order to keep out livestock owned by the lessor. In the present case, unless there was a duty upon the part of the lessees to fence the area involved in their oil operations, there could have been no negligence in failing to do so.
“According to the .authorities it appears that the lessee has the dominant estate and the lessor has the servient estate in so much of the leased premises as may be required in the oil operations provided for in the lease. . . . The same authorities also hold that the rights of each must be exercised with due regard to the rights of the other. The lease in question contains no express provision with reference to fencing the area used by the lessee.
“We do not find it necessary to undertake to lay down any general rule with reference to the duty, if any, of the lessee to fence the area being used by him when the machinery, tanks, or other articles thereon might become dangerous if livestock of the owner should come upon such portion of the " leased premises.
“In the present case it appears from the undisputed evidence that for a number of years prior to the time the livestock in question were injured the lessees knew of the farming and livestock operations of the plaintiff, and the tenant of the landowner, and also that the tenant knew of the oil operations of the lessees and of the presence of the slush pits and of their dangerous character so far as livestock were concerned. . . .

We are not able to find anything from the agreement of the parties or from the particular circumstances of this case, which would impose upon the lessees any duty to maintain the fences in question. . . . And, hence, there could be no predicate for the finding of negligence.”

The observations of the Texas court apply equally to the case before this court, and under the facts and circumstances in this case we can find no basis upon which the defendant could have been found guilty of negligence in failing to fence the blow-pits. The motion for directed verdict should, therefore, have been granted by the court below and the verdict of the jury cannot be justified.

The judgment of the circuit court of Jasper county is, therefore, reversed, and judgment is entered here in favor of defendant, the Pure Oil Company, and as against plaintiff, Elmer Benefiel.

Reversed, and judgment entered here.


text:
    Town of Centreville, Plaintiff, and City of East St. Louis, Appellants, v. John R. Deckard et al., Appellees.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.

      John R. Sprague, of Belleville, and Dan McGlynn, of East St. Louis, for appellants.
    Farmer, Klingel & Baltz, of Belleville, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of St. Clair county, directing a verdict in favor of appellees, John R. Deckard, Ed. Neumeyer, John A. Hill, Wilford Shorber, William Bochholt, Sam Bommareto, John Horn, Arthur Rohn, Nicola Bommareto and John Baumann (hereinafter called defendants), and as against appellant, Town of Centreville (hereinafter called plaintiff).

The action was originally commenced before a justice of the peace in the Town of Centreville, by the Town of Centreville, against ten individual defendants, for a penalty for injuring and obstructing a public road by allegedly placing 61 posts on a roadway, in violation of chapter 121, section 167 of 1941 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 120.163], by sworn complaint of the highway commissioner. All ten cases were consolidated by agreement, and after judgments of $5 each were entered as against all of the defendants, they appealed to the circuit court of St. Clair county. In the circuit court the defendants, who were all employees of the St. Louis-Belleville Electric Railway Company, filed a motion to dismiss the suit on the ground that they had been employed to set the posts in question, and that they had set the posts across the line from the Town of Centreville, in the City of East St. Louis, which adjoins the ■ Town of Centreville. Thereafter, in the circuit court, the City of East St. Louis filed a written motion for leave to file an intervening complaint, in which motion it was set forth that the Town of Centreville had made the original complaint, and that the defendants maintained the alleged obstructions in the City of East St. Louis, and that the City of East St. Louis was an interested party and claimed a cause of action against defendants, arising out of the same transaction involved in the canse. This motion was denied in the circuit court, and the case was then tried before a jury. At the close of the evidence for the plaintiff, it was apparent that the portion of the railroad right of way where the posts had been set and where the Town of Centreville claims a road existed is not within the Town of Centreville, but was within the limits of the City of East St. Louis. There was, likewise, some question as to whether the evidence was adequate to establish a prescriptive right over the portion of the road within the jurisdiction of the town. At the close of such evidence the court directed a verdict against the plaintiff, and in favor of all defendants. A motion for new trial was filed by plaintiff, Town of Centreville, which was overruled, and the plaintiffs, Town of Centreville and City of East St. Louis, now bring this appeal from the order of the circuit court directing a verdict in favor of defendants and denying the intervention of the City of East St. Louis.

The right to intervene in a suit is not absolute, but is exercised only on permission which is granted or denied, depending on the circumstances surrounding each case, and the rules applicable thereto, and where, in the judgment of the trial court (properly exercised under the facts in a case), intervention would change the issues or raise new issues, or would unduly complicate the case, the action of the trial court in refusing such intervention is not a ground for reversal (Hairgrove v. City of Jacksonville, 366 Ill. 163), particularly if such denial does not operate to deprive the intervener of a right of action. The action of the court in the instant case in refusing to permit the intervention by the City of East St. Louis, under the facts and circumstances in this case, does not, in our judgment, constitute reversible error. It is obvious that the City of East St. Louis, if it had a right of action, was not precluded from instituting such action in a separate suit.-

In finding for the defendants the court below stated, specifically, that the testimony of the surveyor, introduced on the stand by the plaintiff, Town of Centreville, was that the city limits of East St. Louis extended to the southerly right of way line of the St. Louis & Belleville Electric Railway Company, and that the Town of Oentreville commences and proceeds south of that right of way line. It was pointed out by the court that his testimony was that all these posts were on the right of way line of the St. Louis & Belleville Electric Railway, and that that being true, none of them were in the Town of Oentreville. It was pointed out by the court that this was a proceeding started by the Town of Oentreville, for obstruction of a road in the Town of Oentreville, and that the Town of Oentreville had no jurisdiction over any part of East St. Louis, and that there was no violation in the Town of Oentreville, and that the Town of Oentreville has no authority or jurisdiction whatever of roads outside the town (Shields v. Ross, 158 Ill. 214, 221; Mushbaugh v. Village of East Peoria, 260 Ill. 27, 32). For the reasons stated it is obvious that the action of the trial court in directing a verdict in favor of defendants in this proceeding was proper.

A number of other points are raised in this case, to which it is not necessary that we give consideration in view of our conclusion. The judgment of the circuit court of St. Clair county in favor of defendants and as against plaintiff herein, and its action in denying intervention, will, therefore, be affirmed. ■

Judgment affirmed.


text:
    F. W. B. Reynolds et al., Appellees, v. Elmer H. Wangelin et al., Defendants, Illinois State Trust Company, Appellant.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Pope & Driemeyer, of East St. Louis, for appellant.
    T. A. O’Connor, of East St. Louis, and John R. Sprague, of Belleville, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of St. Clair county, Illinois, entered as against the appellant, Illinois .State Trust Company (hereinafter referred to as defendant Company), and in favor of certain noteholders named as appellees herein (hereinafter referred to as plaintiffs), which noteholders and the specific amounts of the judgments were as follows:

Mary Weissert...................... $1,948.87
Anna E. Mehring.................... 649.56
Arthur Knewitz ..................... 649.56
George Huggler ....................'. 649.56
Anna L. Popkess or E. G. Popkess .... 2*598.42
Florence Collins or Elizabeth Collins .. 649.56
Gothic Lodge No. 852, A. F. & A. M. ... 3,248.20
Dupo State Savings Bank............ 1,299.31
John Van Dyke ..................... 1,299.31
Jasper Bountree or Ada Bountree .... 1,299.31
Bichard Grady...................... 2,598.62
F. W. B. Beynolds .................. 1,299.31
W. T. Grotty........................ 1,299.31
Mrs. Lou Jimmerson ................ 1,299.31
Charles Young ...................... 2,598.62’

As was indicated in this court in a previous opinion rendered on a premature appeal in this case (Reynolds v. Wangelin, 314 Ill. App. 12), the appeal in this case is from a decree in a foreclosure action, in which decree the court, in addition to ordering a sale of the mortgaged real estate, found the defendant, Illinois State Trust Company, guilty of fraud, and as a consequence thereof, liable to the certain specified noteholders for the amount of the deficiency which was found to be due to such noteholders after the sale of the mortgaged property and an application of the proceeds thereof upon the decree indebtedness. As was true in the previous appeal, the Trust Company is the only party appealing from the decree and it does not question any provision of the decree relating to the simple foreclosure, but directs all assignments of error to the portions of the decree which seek to impose a liability upon the Trust Company to pay the amount of the deficiency which was found to be due after the sale. It is noted that the net deficiency due from the Illinois State Trust Company totals $23,386.83.

The original complaint in this case was filed on August 31, 1933, by Reynolds, as the sole plaintiff, and with defendant Elmer H. Wangelin and his wife, as defendants, and joining the defendant Illinois State Trust Company, as trustee under the real estate mortgage. The action was for a simple foreclosure of the real estate mortgage, which was dated September 1, 1931, and secured 55 principal notes of the same date, aggregating $45,000. The complaint was filed on behalf of the plaintiff and other noteholders. An order was entered on September 15, 1933, appointing a receiver and the proceeding then remained dormant for four years. On July 2,1937 two other noteholders obtained leave of court to become parties plaintiff and filed their complaints, which were also confined to the simple foreclosure issue. On July 13, 1937, five other noteholders obtained leave of court to become plaintiffs, and on July 19, 1937 filed their complaint in the action, which added the Illinois State Trust Company, individually, as a party defendant, and averred that the real estate conveyed under the mortgage was in reality owned by the Trust Company; that defendant Wangelin was its “straw man” in executing the mortgage, and that the five additional plaintiffs had purchased their notes from the Trust Company “after September 10,1931, ’ ’ and that the Trust Company was guilty of fraud in selling these notes to such additional plaintiffs in that it (1) falsely represented that the real estate was ample security when, as a matter of fact, it was not; and (2) promised to repurchase the notes at any time, which it refused to do. The answer of the Trust Company denied such allegations. On January 14, 1938, the original plaintiff filed an amended complaint, making identical averments as to fraud and the repurchase agreement, and on the same date, all of the additional plaintiffs, as well as all other plaintiffs, amended their complaints by adopting and paraphrasing the complaint of plaintiffs filed on July 19, 1937, relating to false representations and the repurchase promise. These plaintiffs, likewise, joined certain other parties defendant, who filed answers herein. The answers of the Trust Company to each of the complaints admitted matters concerning simple foreclosure, but specifically denied the ownership of the property, the contended circumstances of the sale of the notes, and, likewise, denied the charges of fraud and the repurchase agreements. On January 27, 1939 the Trust Company filed amendments to its answers, raising as to each of the complaints filed the defenses of (1) statute of limitations, in that the causes of action set forth in the additional and amended complaints did not accrue within five years of the commencement of the actions; (2) of the statute of frauds and lack of consideration as to the alleged repurchase agreements ; and (3) ultra vires as to the repurchase agreements. Further replies to such answers were thereafter filed, placing in issue the affirmative defenses and alleging that the Trust Company occupied a fiduciary relationship to plaintiffs and failed to disclose the real situation, and that the facts were not discovered by the plaintiffs until the time the amended and additional complaints were filed. The case was referred to the master in chancery and proofs were taken upon the issues thus formed.

The facts, as disclosed by the evidence, indicate that prior to March 16, 1931, one Bertie Wilson was the owner of nineteen pieces of real estate in East St. Louis, upon which there were separate first mortgages aggregating $35,700 in all. The gross rentals averaged $8,800 per year, and these rentals had been collected by the Trust Company for a period of several years, and regular monthly accountings had been made to Wilson. In 1930 Wilson expended $5,000 in repairing and renovating the properties (about $200 or $250 per house). In the spring of 1931 Wilson discovered that his associates had become involved in some questionable deals and had forged his name, and his wife’s name, to some papers, and that .they were about to become involved in litigation. He discussed the matter with his attorney and as it was necessary to arrange some refinancing of some of the nineteen mortgages, which were about to mature, he went to Mr. Baltz, then vice president of the Trust Company (deceased prior to the talcing of proofs), and discussed the entire situation. Wilson had planned to convey the record title to the property to a brother-in-law in Jacksonville to keep the property out of the threatened litigation, but Baltz, presumably, objected to this procedure because of the inconvenience occasioned by the brother-in-law being located in Jacksonville. It was then arranged that Wilson convey the nineteen parcels to the Trust Company, which he did on March 16, 1931, for which conveyance the Trust Company paid him no consideration and claimed no beneficial interest in the properties. To effect a refinancing of the mortgages it was agreed that all nineteen parcels would be put in one mortgage, thus retiring the nineteen individual mortgages and providing for payment of taxes, which had been left unpaid, to establish proper reserves for taxes and insurance, to pay off a debt owed by Wilson to the First National Bank (an affiliate of the Trust Company), and to pay other items. Baltz, Wilson and Mattingly, an employee of the Trust Company, made a survey of the properties and appraised them at $61,300. To carry into effect the plan, Wilson and his wife signed a letter to the Trust Company, advising that they were holding a quitclaim, deed to the real estate, and that for the purpose of refinancing the present mortgage indebtedness he requested that they convey the properties to Elmer H. Wangelin (this name was apparently suggested and inserted by Baltz for the purpose of carrying into effect the program), with a request that a new mortgage be executed, reconveying the properties to the Trust Company, as trustee for the new mortgage loan, as well as the indebtedness to the First National Bank. The nineteen pieces of real estate were conveyed to Wangelin, who, "with his wife, executed notes aggregating $45,000, each payable to bearer, and also executed a mortgage to “Illinois State Trust Company, trustee” securing the notes. The notes and mortgage were delivered to the Trust Company, which gave Wilson credit for the amount of the notes. The mortgage was in the ordinary mortgage form, and not in the form of a trust deed, and neither by express recitals nor by implication carried with it any other description of a trust or trust relationship.

At the time the notes were made no particular persons were interested in the notes. The original nineteen mortgages, with outstanding notes of $35,700, were called in. $13,000 of such notes were exchanged for notes secured- by the new mortgage, leaving a balance of $22,700 of former mortgages to be paid in cash, and $32,000 of notes of the new mortgage. $31,000 in amount of the new mortgage notes were sold, and the remaining $1,000 note was canceled. The proceeds of the $31,000 in notes of the new mortgage was used to pay off $22,700 in amount of the former mortgages which were not exchanged, and the remaining balance of $8,300 was set up “to establish proper reserves for taxes and insurance, to pay the cost incurred by Wilson in refinancing (including a small fee to the Trust Company), and to pay a small note owed by Wilson to the First National Bank.” Wilson was given a detailed accounting of the entire transaction by the Trust Company. The exchange of and sale of the new mortgage notes by the Trust Company took place on several dates between September 1 and October 31, 1931.

The evidence in the case discloses that only two plaintiffs testified as to the circumstances attending their acquisition of the notes. Plaintiff Young’s testimony was simply that Mr. Baltz.had said “There is no use of going to look at the property, the Bank protects you to the date of maturity and date of interest, ’ ’ and that Baltz said to Mr. Henderson “Give him those papers, give him something good. Any time you want your money back, come in.” The plaintiff Popkess stated that he purchased his notes from Mr. Henderson, the assistant secretary of the Trust Company, and that he didn’t ask as to the security; that he asked as to the responsibility or financial status of the bond; and that Henderson stated, “Any time you want your money back, bring them in and we will pay them back. ’ ’ There was no evidence as to any circumstances attending the sale of any notes of any other purchaser, except Young and Popkess. So far as the record discloses there may have been a full and complete disclosure by the Trust Company of every fact and circumstance attending the execution of the notes and the character and value of the security therefor, and the income from the property.

There is a conflict of testimony as to the value of the real estate in September 1931. Wilson recalled that the rentals averaged $8,800 per year, and he appraised the properties at $61,300. Two real estate dealers in East St. Louis corroborated these values and rental expectancy. The records of the Trust Company show fire insurance of $54,950,' carried on the properties at the time. There was conflicting evidence by other real estate brokers which indicated a value of $40,000 or $25,000. Interest on the mortgage defaulted on March 1, 1933, and the principal debt of $44,000 matured and was unpaid on September 1, 1934.

In January of 1940, the special master in chancery filed his report, finding in favor of plaintiffs insofar as the simple foreclosure was concerned, but finding as to the other issues, (1) that the evidence was not‘sufficient to establish fraud on the part of the Trust Company, in regard to the valuation of the property, bearing in mind that the mortgaged premises had been, prior to 1930, and were to a lesser degree on September 1, 1931, substantial income producing properties, with a considerable margin of income above the requirements of interest, taxes, and maintenance of the properties, and that the economic depression had not, at that time, reached its most serious period, and that further depreciation in the value of the properties as the result of the depression, could not be fairly foretold by the Trust Company; (2) that the repurchase promises made to the two plaintiffs, Young and Popkess-, were beyond the legal powers of the Trust Company; and (3) that the Trust Company was not the beneficial owner of the mortgaged premises, and that while it .held title to the premises, it did so for the protection of the noteholders and it had agreed, by virtue of its acceptance of the Wilson proposal contained in the letter referred to in this statement of facts, to hold the mortgaged premises as security for Wilson’s indebtedness, and that it held title to the premises as trustee for the noteholders. The master stated that he found it unnecessary, in view of such findings, to pass upon the defenses of statute of limitations, or the statute of frauds, raised by the defendant Company. After objections were overruled to the master’s report, plaintiffs filed exceptions to such report, and in August of 1940, and in November of 1940, the circuit court of St. Clair county sustained exceptions to the master’s report.

There were subsequent amendments to the complaint by the plaintiffs which it is not necessary that we detail for the purposes of this opinion. The amendments, substantially, sought to specify the facts relating to the default, and set up fraud in the making and sale of the notes, and that plaintiffs knew nothing of this until shortly before the filing of the complaints charging fraud. By subsequent order the circuit court modified its previous order so that only those note-holders who purchased or received notes from the Trust Company were entitled to a deficiency judgment against the Trust Company. Thereafter, on June 25, 1943, a judgment was entered by the court below finding in substance that the Trust Company occupied the position of trustee to the persons to whom it sold the Wangelin notes and for those persons who received such notes from the Trust Company in exchange for the prior Wilson notes; that the Trust Company was guilty of fraud upon such persons in selling or trading them notes at par, which “it caused to be executed by an irresponsible straw man of its own selection” secured by a mortgage on real estate on which it had been collecting rentals for four years prior to the execution of the Wangelin notes and mortgage, and which gross income from which said real estate at said time was not sufficient to pay the interest on all of said notes, to say nothing of providing funds for payment of taxes, insurance, repairs, and water rentals. The court, likewise, found that the cause of action was not barred by the statute of limitations because of the fiduciary relationship of the Trust Company.

As the result of the sale of the real estate the master in chancery realized only $12,500, and after the filing and approval of the master’s report of sale, the court ordered application of the amount in the hands of the receiver pro rata to the holders of the notes secured by the mortgage, and entered judgment in favor of various noteholders, against Wangelin and wife, for the remaining deficiency, but entered judgment specifically in favor of the plaintiffs named in the statement of facts hereinabove, as against the Illinois State Trust Company, to the extent of the deficiency arising from the sale.

Error is assigned on the judgment of the court entered herein, by which it is sought to impose such obligation for deficiency upon the Trust Company, and it is contended, basically, that there is no proof of the existence of a fiduciary relationship between the Trust Company and any person who purchased notes from the Trust Company, or received them in exchange for other notes at the time of the sale or exchange; and (second) that there is complete lack of any evidence that fraud was perpetrated by the Trust Company. It is also contended that the statute of limitations constitutes a bar to the action against the defendant, and that the repurchase agreement is, likewise, barred by the statute of limitations, as well as being ultra vires.

We have examined the record carefully in this cause and must agree that .the evidence does not establish the existence of a fiduciary relationship between the note-holders and the Trust Company. Such fiduciary relationship can only be established by showing that confidence was reposed in the Trust Company, and that such confidence was accepted and betrayed (Rubin v. Midlinsky, 321 Ill. 436, 440; Dick v. Albers, 243 Ill. 231, 236; Bordner v. Kelso, 293 Ill. 175, 179). It has been clearly noted in the cases determined in this State that it is not sufficient merely to establish a relationship under any particular name or designation such as “Trust Company,” trustee, or beneficiary, but it must be shown that confidence actually exists and is reposed by one party and accepted by the other before a fiduciary relationship is established (Higgins v. Chicago Title & Trust Co., 312 Ill. 11; Guffey v. Washburn, 382 Ill. 376, 381).

Under the pleadings in this cause it was necessary that there be proof of facts constituting fraud. Fraud is not presumed but the facts constituting the fraud must be alleged and proved (Ashton v. MacQueen, 361 Ill. 132, 143; Anderson v. Anderson, 339 Ill. 400, 411; Simpson v. Adkins, 311 Ill. App. 543, 551). There is a complete lack of any evidence in the record that a fraud was perpetrated by the Trust Company, other than such as might arise from an interpretation of the facts recited in this opinion. Only two of the noteholders testified (Young and Popkess), and that is the only evidence concerning the sales of notes by the Trust Company. There is in that testimony an obvious failure to establish fraud and there is no mention of any misrepresentation of fact which could constitute fraud. In the absence of any testimony on the subject it cannot be presumed from the facts detailed herein, that the defendant was guilty of fraud. As stated in Racine Fuel Co. v. Rawlins, 377 Ill. 375, 379, “The Rule is that transactions are presumed to be fair and honest, until the contrary is proved by clear and convincing evidence. . . . Fraud is not presumed, but must be proved like any other fact, by clear and convincing evidence. ... It is not sufficient that there be mere suspicion of fraud, but fraud, if it exists, must be satisfactorily shown.” The burden is on plaintiffs alleging fraud to prove such allegation by a preponderance of the evidence (American Hoist & Derrick Co. v. Hall, 208 Ill. 597, 601).

Under the facts in this case there is nothing to show that the Trust Company occupied the position of trustee for the noteholders, since at the time of the sale and exchange of the notes, the parties were not even acquainted so far as the record discloses, and there was no oral or documentary evidence which could create any relationship which could reasonably be determined as “fiduciary.” There is no evidence of any prior course of dealings by any noteholder with the Trust Company, or that any noteholder ever had any relationship with the Trust Company, or reposed any confidence in it previously.

So far as the record discloses the properties had been substantial producers of income prior to 1931, and the master’s finding in connection with the issue of fraud and the questions of value were clearly sustained by the evidence. It is apparent that the economic depression, of which the courts have taken judicial notice (Klee v. Chicago Trust Co., 365 Ill. 354, 356) could not, in the words of the master, “have been fairly foretold by the Trust Company.” We cannot sanction the finding of fraud based upon decline in valuation or rentals as the result of the depression, on the state of the record before us, and it is apparent that there was nothing in the testimony of Young and Poplcess which would, even as to such plaintiffs, sanction a finding of fraud so as to justify a deficiency decree as against the Trust Company. (As to such individuals, it is obvious that any repurchase agreement was barred by the statute of limitations, although there is no finding or decree, based ripon such agreement or issue, in the record.) It is unnecessary, however, to discuss the application of the statute of limitations to the case as a whole, in view of the conclusion of this court that the record fails to justify a deficiency decree based upon fraud. Similarly, it is unnecessary to discuss the contention that a repurchase agreement was ultra vires. It should be noted in passing, however, that the master in chancery made a finding that the beneficial ownership in the real estate was at all times in Bertie Wilson. This conclusion is sustained by the evidence and so far as the record discloses, was not questioned by the court below, or the parties to this proceeding. In this connection it is contended by plaintiffs that the case of Bride v. Stormer, 368 Ill. 524, constitutes an exact precedent justifying the judgments entered herein. In that case, however, the bank was the sole beneficial owner of the real estate and procured the execution, on behalf of the bank, of a trust deed thereon. The title was taken in the name of an assistant cashier, who subsequently executed a mortgage at the request of the bank. On foreclosure of such second mortgage, after the bank’s insolvency, the receiver, as a defendant, was subjected to a deficiency decree on the ground that the title was in the bank on a resulting trust. In the case before us, where the beneficial interest in the property involved remained at all times in Bertie Wilson, it is apparent that the circumstances involved in the case cited and in the case before us, are not parallel.

We are impelled to conclude, therefore, that the findings of the trial court in the decree entered on July 14, 1941, and upon which judgment was entered on June 25, 1943, in which judgment was entered against defendant, Illinois State Trust Company, have no support in the evidence, in view of the fact that the record fails to disclose that any fiduciary relationship existed between the Trust Company and any of the plaintiffs, or that there was any fraud shown in the facts, as disclosed by. the record, in the sale or exchange of any of the notes by the Trust Company.

The judgment of the circuit court, entered on June 25, 1943, in favor of the plaintiffs as herein stated, and as against the defendant, Illinois State Trust Company, will, therefore, be reversed and judgment will be entered here in favor of the defendant and in bar of such claims of plaintiffs, without prejudice in any manner to any rights of plaintiffs in and’ to deficiency judgments rendered against parties other than defendant, Illinois State Trust Company.

Judgment reversed.


author: Mr. Justice Bristow

text:
    Arthur E. Wise, Appellee, v. Kuehne Manufacturing Company, Appellant.

      Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Rehearing denied March 25, 1944.
    Meyer & Meyer, of Greenville, for appellant.
    Glen B. Wilson, of Greenville, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Appellee, Arthur E. Wise, as plaintiff, instituted a suit against Kuehne Manufacturing Company, a corporation, appellant, as defendant, for damages for personal injuries received by plaintiff when an automobile in which he was riding collided with the rear end of a truck of appellant, operated by one of appellant’s servants and standing on the north or right half of the pavement in a public highway in the nighttime.

The jury returned a verdict in favor of ■ plaintiff against defendant for $3,033, and judgment was entered upon the verdict. The defendant has taken this appeal from the judgment.

The complaint consisted of several counts, charging acts of negligence and violation of the statutes of Illinois governing traffic upon public highways. Except as hereafter mentioned, we do not deem it profitable to make further statements in regard to the pleadings.

On the night of February 10, 1942, a large combination trailer truck belonging to the defendant, loaded with furniture, was being operated by one Leslie McConnell, a servant of appellant. It was coming west from Smithboro on IT. S. Highway 40, and about three quarters of a mile outside of Greenville it came to a stop on the north half of the 18 foot pavement. Later, it was discovered that mechanical trouble caused the sudden stoppage of the truck. The shoulders of the road were of soft dirt. The driver of the truck testified that he put out three flares; one, 50 or 60 feet west; one, a few feet to the side and east of the rear end of the truck; and one, back east of the truck on the pavement. He stated that on the truck there were numerous lights on the rear across the top, on the side about two and a half feet from the bottom, and one underneath; and that there were two red reflectors on the rear of it about a foot from the bottom.

The truck driver went to Greenville to get a garage man and wrecker, and returned in about half an hour with the man and the wrecking outfit. The garage man testified that he turned around east of the truck, and that lights were burning on the rear of it then, but he made no statement regarding flares on the pavement. Testimony showed that the truck lights were all on one switch. The wrecker was hitched to the front of the truck. The truck driver testified that he then picked up and extinguished the flare he had set on the pavement east of the rear end of the truck and the flare that he had set on the pavement a few feet from the roadside rear corner of the truck, and that he then got into his truck intending to pick up the flare which was to the west as he went past it. The wrecker was able to move the truck only 10 or 12 feet when its wheels began to slide. Thereafter, chains were adjusted on the wheels. The evidence showed that it had snowed, and that there was some ice on the pavement, and it was a little foggy and cloudy. Another unsuccessful attempt was made to move the truck and chains were then put on the wrecker.

The driver of appellant’s truck testified that the truck lights were burning at that time; that he then started to put out flares; that he put one at the roadside rear corner of the truck again; but that the flare had not been placed on the pavement east of the truck again; and that he was standing about six feet east of the truck with a flash light when the car in which the plaintiff was riding approached; that he signaled with the flash light; but that the automobile, which was coming at about 30 miles an hour from the east, did not stop and collided with the trailer truck at about the middle of the rear end.

The plaintiff testified that he was riding in an automobile owned and driven by a friend, and they were going at a speed of 25 or 30 miles an hour. He and his friend, on alternate days, used their respective automobiles for the two to ride to their work. The time of the accident in question was before daybreak. Appellee and the driver of the car, each, testified very positively that as they approached this standing truck there were no flares or lights on or about it; that there were no warning lights on the truck or highway or otherwise; and that there were no signals which gave them notice of the presence of this truck standing in front of them upon the paved part of this highway. The driver of the car testified that after the collision occurred and after appellee had-been removed to the hospital, the truck driver took flares from the cab of the truck, lighted them, and placed one on the pavement 100 feet in front and to the west of the truck, and one on the pavement at the rear corner of the truck, and one on the pavement about 100 feet east of the truck.

A son of the plaintiff testified that, at the hospital, the truck driver told him there were no lights on or about the truck.

The plaintiff testified that the car in which he was riding had passed several automobiles, and that they passed the last one about 400 yards east of the point of collision. There is no evidence that after the truck driver took the flares off the pavement, any other automobile from the east came to or around the standing truck. However,.it does show that before the flares had been taken off the pavement, two G-reyhound buses and a freight truck had come from the east up to the standing truck and had gone around it. Plaintiff and the driver of the car claim that they were driving carefully, looking ahead, and that defendant’s truck suddenly loomed up a few feet in front of them. The proof shows that the dimmer lights were on the car in which plaintiff was riding from the time it passed the last east bound car, above mentioned, until the collision occurred.

Appellant contends that the' driver of the car had testified formerly, by deposition, that he could see 300 feet ahead, and at the trial said that his visibility was limited to 50 or 60 feet. Appellant also contends that the driver of the car violated the statutes of Illinois in driving without bright headlights; and that he negligently crashed into the rear of the truck; and that his negligence, or his negligence combined with that of plaintiff-in'not warning him, was the sole, proximate cause of the collision and consequent injury to the plaintiff.

Plainly, there is a sharp conflict in the evidence as to whether or not the defendant was guilty of any negligence that proximately caused the accident; as to whether or not the plaintiff was guilty of any contributory negligence; and as to whether or not the driver of the car was guilty of any negligence that proximately caused the accident in question. The jury, by their verdict, decided all these questions adversely to the contention of the defendant. A careful reading of the record brings us to the conclusion that the jury did not make their finding contrary to the manifest weight of the evidence, and consequently, we are not disposed to disturb the same.

Appellant cites, quotes, and discusses a number of decisions on the subject of negligence of a driver, duty of a guest to observe and warn his driver of danger, driving with dimmer lights, and contributory negligence. The principles of law laid down in. these cases are frequently recited and recognized. However, an examination of these cases discloses that they treat of facts and situations where there were obvious known warnings of danger ahead, or known conditions placing the driver on notice. They are distinguishable in several particulars from the ease under consideration. Violation of a statute may be held to be prima facie evidence of negligence but not conclusive. In Carroll v. Krause, 295 Ill. App. 552, at page . 568, the court stated: “It has not been held that proof of the fact that the lights of a car were not sufficiently bright to disclose objects in front of the car for a distance of 200 feet is alone sufficient as a matter of law to prove negligence on the part of the driver of the car, in the event of the car colliding with an unlighted motor vehicle on the highway. Such proof is prima facie evidence of negligence. (Miller v. Burch, supra; Price v. Bell Telephone Co., supra.) However, the question of whether the driver of the car, before and at the time and place of the collision, was negligent, depends on all the facts and circumstances shown by the evidence. (Miller v. Burch, supra; Price v. Illinois Bell Telephone Co., supra.) ” Whether or not driving with dimmer lights is negligence under the facts in this case is a question for the jury to determine. Price v. Illinois Bell Tel. Co., 269 Ill. App. 581, 584, 585; Miller v. Burch, 254 Ill. App. 387; Nystrom v. Chicago, St. Louis Transfer Co., 297 Ill. App. 649 (Abst.).

Appellant contends that the court erred in denying its motion for a mistrial. This motion was based upon an altercation between plaintiff and the truck driver in the courtroom at the close of the first day of trial. The court took evidence of witnesses, and polled the jury after it had returned its verdict, and such investigation disclosed that none of the jury heard or saw anything of this altercation. Accordingly, the jury could not have been influenced by it and the court did not commit any error in denying the motion for a mistrial.

Appellant makes some contention that the verdict was excessive, and that it resulted from passion and prejudice. It appears from the testimony of Dr. Hall, the attending physician, that the plaintiff had the following injuries: a fracture of the nose; a fracture of the skull; two cuts under his chin, eight stitches being-required to close the laceration; fracture of the 6tli and 7th rib; a fracture of the 5th metacarpus of the left hand; a concussion of the brain; and multiple contusions and abrasions. The plaintiff was required to stay in the hospital about three weeks. The fracture of the nose produced many hemorrhages which required frequent packings with gauze. Plaintiff suffered considerable pain and discomfort. For many weeks after his return from the hospital, the plaintiff’s nose drained from an infection caused by the fracture of his nose. The setting of the bone in his finger caused a good union, but there was an overriding of the ends. At the time of the trial which was a year after the accident, he had not returned to his employment where he had earned an average of $21 per week. The total amount of the hospital and doctor bills was approximately $157. We are of the opinion that the evidence concerning the extent of the injury fully substantiated the amount of the verdict.

Appellant contends that the court erred in denying its motion for a directed verdict on Count VII of the complaint. This count was based upon sec. 121, par. 218, article 15, ch. 95%, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.250], in regard to vehicles of the second division, which would be the classification of the truck in question. Paragraph (a) of the section provides that while such vehicle is operated outside of a business or residence district on public highways it shall carry not less than three flares or certain other kind of lights capable of continuously producing light visible at a distance of at least 500 feet for at least 12 hours. Paragraph (b) provides, “Whenever any motor vehicle of the second division and its lighting equipment are disabled during the period when lighted lamps must be displayed on vehicles and such motor vehicle cannot immediately be removed from the main travelled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares . . . to be lighted and placed upon the highway, one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet to the rear of the vehicle, and the third upon the roadway side of the vehicle. . . .” Appellant makes the contention that the truck must be both disabled mechanically and have its lighting equipment inoperative before they would be obliged to put out flares. If this were true, a truck could be stopped on a highway with no lights whatsoever, and if the truck were not mechanically disabled, there would be no duty under the foregoing statute to warn the traveling public with lighted flares. We are of the opinion that this being a remedial statute, it was the intention of the legislature that in either the event of the truck being without lights or it being stalled on the highway because of mechanical disability, it is the duty of the driver of the truck to use flares as outlined in the statute. Any other construction would be unreasonable. Rosenthal v. Prussing, 108 Ill. 128; People v. Trustees of Northwestern College, 322 Ill. 120, 124.

A further contention is made by appellant that appellee failed to prove that the place of the accident was outside of a business or residence district. The evidence showed that this accident occurred half a mile outside of Greenville and in the country. We find no merit in the claim of lack of proof that the accident occurred outside of a business or residence district. We do not believe the trial court erred in denying the motion for a directed verdict on Count VII.

Complaint is made to the giving of plaintiff’s instructions Nos. 2 and 3, and refusal of defendant’s .tendered instructions Nos. 2 and 3. Plaintiff’s instruction No. 2 is the instruction set up in full and approved in Slovinski v. Beasley, 316 Ill. App. 273, 277. The objection is to the word “other” in the phrase “other prudent person.” The objection is that it assumes that plaintiff acted as a prudent person and that the instruction is inconsistent with other instructions. We do not believe that the jury could have been misled by this instruction.

Plaintiff’s instruction No. 3 is as follows: “The court instructs the jury that, in this case, even though you may believe from the evidence that Walter Stone-burner, the driver of the automobile in which plaintiff was riding on the occasion in question, was then and there negligent, yet such negligence of such driver would not, alone, relieve the defendant, Kuehne Manufacturing Company, of liability, if the jury further believe, from the preponderance of the evidence that said defendant was, on the occasion in question, guilty of negligence, as charged in the complaint or any count thereof, which proximately caused or contributed to the injury, if any of the plaintiff, Arthur E. Wise, and that the plaintiff Wise, at and immediately before the time of his alleged injury, if any, was in the exercise of due care and caution for his own safety. ’ ’ One objection is made that this instruction refers to the complaint to determine the charge of negligence. The second objection is that it is inconsistent in telling the jury that plaintiff might have been in the exercise of due care, since the plaintiff had testified that he had left the driving to the man who was driving the car in which he was riding, and had testified that he had said “not a word” to such driver. Appellee, to sustain the propriety of the giving of this instruction, relies upon the case of Eckels v. Muttschall, 230 Ill. 462, 468, where a similar instruction was approved. Appellant relies upon Opp v. Pryor, 294 Ill. 538, 547.

The Opp case involved a collision of an automobile with a train at a railroad crossing. The plaintiff testified she was sitting in the front seat, and that she had no remembrance of the occurrence. Her only reliance of proof of her care was what others said they could see. On the'contrary, in the present case, plaintiff testified at great length that he had watched the road up to the time of the collision; that there were no lights and no warning ahead; that the speed was 30 miles an hour; and that suddenly a large dark object loomed in front of them against which the automobile collided. And upon cross-examination, plaintiff was asked whether or not he had said anything to the driver about ice on the pavement and about the distance he could see, and he answered “no” and “not a word.” All the conditions mentioned and described by plaintiff in this ease, were equally observed by the driver of the automobile in which the plaintiff was riding, and the driver so testified. The jury had the right to believe that there was no obligation on the part of the plaintiff to say “a word” to the driver in this case. The evidence in regard to the conduct of the plaintiffs in the two cases was entirely dissimilar.

An instruction should not refer the jury to a complaint for determination of the charges of negligence, but such reference does not necessarily require a reversal. Wennmacher v. Choate, 224 Ill. App. 42, 48, 49; Lerette v. Davis, 225 Ill. App. 93, 99. Defendant’s first given instruction advises the jury that the gist of each charge made in the complaint is negligence, and defines negligence. Defendant’s second given instruction advises the jury that before plaintiff could recover, certain elements “of his charge” must be proved, vis: “(1). That defendant was guilty of one or more of the acts of negligence ‘charged’ against defendant. (2). That such negligence was the proximate cause of the injury, and (3). That plaintiff Was not guilty of negligence which contributed to his own injury, and that proofs of one or more such material elements alone would not entitle plaintiff to recover.” Defendant’s given instructions 4, 7, and 9 at length advised the jury that though it might find the truck driver guilty of negligence, the plaintiff must prove his own due care and that he did not contribute to the injury, and could not have avoided it. Defendant’s given instruction 5 advised the jury of the duty of the plaintiff to use his faculties to avoid an injury. The jury certainly was instructed very fully upon all the elements of care and liability and duty of plaintiff. The trial court did not err in giving plaintiff’s instructions Nos. 2 and 3.

Defendant’s refused instruction No. 2, stated that plaintiff was only entitled to recover such damages as flow from the injury. Defendant’s refused instruction No. 3 stated that mere surmise, conjecture of possibility of future pain and suffering could not be regarded as proof of an existing fact or future condition. Plaintiff’s given instruction No. 4 instructed the jury very fully that it was limited to such damages sustained, if any, as a direct and proximate result of the injury sustained, in so far as such damages and injuries are established by a preponderance of the evidence. The jury was very fully and clearly advised of its duty in regard to the assessment of damages. The trial court committed no error in the giving and refusing of instructions in this case that would warrant a reversal of this judgment.

Perceiving no reversible error, the judgment herein should be and is, hereby, affirmed.

Judgment affirmed.