text:
    Anthony LaCerra, Appellee, v. Edward Woodrich, Appellant.
    Gen. No. 42,292.
    Heard in the second division of this court for the first district at the June term, 1942.
    Opinion filed December 14, 1943.
    Barnet Hodes, Corporation Counsel, for appellant ; James A. Velde, Emil J. Broz, Joseph W. Grigal, J. Herzl Segal, L. Louis Karton and Barney Fagen, Assistant Corporation Counsel, of counsel.

      Herman R. Tavins, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff, Anthony LaCerra, sued Edward Wood-rich and Steve Kasper, police officers of Chicago, to recover damages for personal injuries sustained by him and for damages to his automobile. Plaintiff dismissed the suit as to Kasper. The case was tried before the court and a jury and a verdict was returned finding defendant Woodrich guilty and assessing plaintiff’s damages at $500. The jury answered the following interrogatory affirmatively: “Was the defendant, Edward Woodrich, guilty of wilful and wanton operation of Squad Car 121, property of the police department of the City of Chicago at and immediately before the time of collision of said squad car with the one in which the plaintiff was riding?” Plaintiff remitted $200 of the amount of the verdict and a judgment was entered in favor of plaintiff for $300. Defendant appeals.

There was a collision between a police squad car driven by defendant Woodrich and an automobile driven by plaintiff, on June 13, 1939, at about 8:15 a.m., at the intersection of Division street and Humboldt drive, in Chicago. Division street runs east and west and has two lanes, the south lane for east bound traffic and the north lane for west bound traffic. There is room in each lane for two cars and there is a parkway in the middle of the street. Humboldt drive runs north and south and is wide enough to allow two cars to proceed in each direction. There are automatic stop lights at the intersection. Defendant’s theory of fact was that he was driving- a police squad car east on Division street toward Humboldt drive; that he and Kasper were then pursuing a truck driver because they had noticed as the truck passed them that it bore no name and that the license plate in the back was bent up; that the lights at Humboldt drive were green as they approached the intersection and started across it; that Kasper had sounded the siren at Kedzie and Division streets, a block west of Humboldt drive, and that “the siren may be heard for blocks in an open space; ’ ’ that the police car was being driven at about thirty-five miles an hour; that plaintiff’s car was going north on Humboldt drive at a very slow rate of .speed and that defendant thought that plaintiff was ready to stop; that when plaintiff’s car moved in front of defendant’s car defendant swerved the police car to the left in an effort to avoid the collision; that plaintiff made no effort to avoid the collision. Defendant admitted that the collision occurred outside of the boundaries of “the tour of duty” that he traveled. Plaintiff’s theory of fact was that the collision occurred outside of the boundaries that defendant traveled in the performance of his duties; that defendant was not in pursuit of a truck at the time of the collision; that at the said time and immediately prior thereto defendant was driving the police car at the rate of forty-five to fifty miles per hour; that as defendant entered the intersection the stop and go lights at the intersection were green for plaintiff and that, therefore, plaintiff had the right of way; that there was no siren sounded on the police car at a time when it could be heard by persons driving along Humboldt drive near the intersection; that the jury were fully warranted in finding from the evidence that defendant Woodrieh was guilty of wilful and wanton operation of the police car at and immediately before the time of the collision. There was proof to support each theory and after a careful examination of all of the evidence we are satisfied that we would not be justified in disturbing the findings of the jury. Defendant specially contends that there is no evidence tending to prove wilful and wanton conduct.

“. . . Whether the negligent conduct of a defendant which has resulted in injury to another amounted'to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, supra [139 Ill. 596].) An intentional disregard of a known duty necessary to the safety of the person or property of another and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, make a case of constructive or legal willfulness such as charges the person whose duty it was to exercise care with the consequences of a willful injury. (1 Thompson on Negligence, secs. 20, 22.)” (Walldren Express Co. v. Krug, 291 Ill. 472, 476, 477.)

“. . . It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree-of negligence the law considers equivalent to a willful or wanton act. Whether an act is willful or wanton is greatly dependent upon the particular circumstances of each case. Where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of willfulness or wantonness.” (Bernier v. Illinois Central R. R. Co., 296 Ill. 464, 470, 471.)

We are satisfied that there was sufficient evidence to warrant the jury in finding that defendant’s actions, just prior to and at the time of the accident, constituted wilful and wanton conduct.

Defendant contends that the trial court erred in not directing a verdict for defendant on the malice count after it had directed a verdict for defendant on the negligence count. Counts one and two relate only to the defendant Kasper. Count three charges defendant Woodrich negligently caused the collision, and count four charges that he was guilty of wilful and wanton conduct in causing the collision. At the conclusion of the evidence the trial court, upon motion of defendant, instructed the jury to find defendant Woodrieh not guilty as to count three, and denied his motion to instruct the jury to find him not guilty as to count four. Defendant now argues that when the trial court directed the verdict on the negligence count, “it was incumbent upon him to direct a verdict on the count charging wilful and wanton conduct.” Judge Hates, who tried the instant case, also tried the case of Styblo v. McNeil, 317 Ill. App. 316, wherein the defendant, a police officer, driving a police car of the City of Chicago, was found guilty of wilful and wanton conduct in the collision of the police car and the Styblo automobile. In that case the complaint contained a negli-. gence count and also a wilful and wanton count, and, as in the instant case, the corporation counsel succeeded in having the trial court direct a verdict for the defendant on the negligence count, and upon appeal they made the same point they are urging here. The Third Division of this court, speaking through Mr. Presiding Justice Burice, said (pp. 326, 327):

“. . . Defendant asserts that the trial judge erred in failing to direct a verdict as to the wilful and wanton count after he had directed a verdict on the negligence count. A careful examination of the record convinces us that the court did not err in refusing to direct a verdict on the wilful and wanton count. Our view is that the court erred in directing a verdict in favor of the defendant as to the negligence count. We believe that there was sufficient evidence to go to the jury on both counts.”

That statement applies with equal force to the contention in the instant case. Defendant caused the trial court to err in instructing the jury to find defendant not guilty as to the negligence count and he is in no position to take advantage of that error. As the case went to the jury it presented the same situation as though the statement of claim had charged wilful and wanton conduct only.

Defendant contends that in instructing the jury the language used by the trial court in defining wilful and wanton conduct was confusing. We find no merit in this contention.

The instant judgment, after assessing plaintiff’s damages in the sum of $300, provides “that execution issue therefor, and malice body execution to issue.” Defendant complains that the order in the judgment, “malice body execution to issue” “did not comply with statutory requirements,” and that “the provision in the judgment for the issuance of a body execution was invalid.” Defendant cites section 5 of the Judgment Act (Ill. Rev. Stat. 1941, ch. 77, sec. 5, as amended in 1935 [Jones Ill. Stats. Ann. 107.155]), which provides as follows: “No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” Defendant argues that under section 5 “it is mandatory, before a body execution issue, that there be a special finding of the jury as well as a provision in the judgment stating explicitly that malice is the gist of the action,” and cites Ingalls v. Raklios, 373 Ill. 404, and Peiffer v. French, 376 Ill. 376, in support of his argument. In the Peiffer case the court said (p. 379):

“. . . This court held in Ingalls v. Raklios, 373 Ill. 404, that to comply with the statute, the judgment must contain a finding that malice is the gist of the action and that that finding must appear on the face of the judgment. A capias ad satisfaciendum is not lawful unless the court, if the case is tried without a jury, includes in its judgment a special finding that malice is the gist of the action. In a case submitted to a jury the jury must make a special finding of facts from which it shall appear that malice was the gist of the action. In such a case the judgment must include a special finding that malice was the gist of the action. The judgment in this case did not include a special finding that malice was the gist of the action. ’ ’

The instant judgment order did not include a special finding that malice was the gist of the action, and therefore the order in the judgment, “malice body execution to issue,” was not a sufficient compliance with the statute upon which the clerk of the court could issue an execution against the body of defendant. But the entry of the order in question in the judgment does not affect the merits of the cause and does not require that a new trial be granted.

Sometime after defendant filed his reply brief in this cause he filed a supplemental brief and argument, in which he raises, for the first time, the following contentions: (1) The City of Chicago could not he held liable for the injuries caused to plaintiff by Woodrieh even though the injuries were caused by the wilful and wanton conduct of Woodrieh. (2) “By reason and logic it must necessarily follow that the police officer is exempt from liability even though the jury has found that his conduct is constructively willful and wanton. ’ ’ The supplemental brief raises a novel question and counsel for plaintiff should have filed an answer to that brief, thereby aiding the court, but he has not seen fit to do so. Contention (1) states a correct principle of law, but the proposition- of law advanced in contention (2) is unsound, and defendant does not cite any authority that supports it. Defendant cites authorities that adhere to the rule that a municipality is not responsible for the unlawful or negligent acts of policemen in the discharge of their public duties, even though the conduct of the policeman is of a malicious nature, and defendant strenuously argues that the courts cannot logically give such protection to the municipality “without also giving to the police officer protection co-extensive with that of the mimicipality.” (Italics ours.) Defendant cites Taylor v. City of Berwyn, 372 Ill. 124, and Miralago Corp. v. Village of Kenilworth, 290 Ill. App. 230, in support of his contention, but neither case supports it. The complaint in the Taylor case charged only negligence. (See Taylor v. City of Berwyn, 297 Ill. App. 417, 419.) The plaintiff in the Miralago Corp. case sued only the Village. It is somewhat surprising that defendant saw fit to cite the Miralago Corp. case, as the opinion therein seems to be in sympathy with the authorities that have departed from the old theory of nonliability of cities for negligence in the performance of governmental functions. We do not think that any respectable authority can be found that would support the proposition of law urged by defendant. City of Chicago v. Williams, 182 Ill. 135, 137, holds adversely to defendant’s contention and the opinion cites several cases that hold that the municipality is not liable for illegal acts committed by police officers in the performance of their duties, but that the police officers are liable as individuals for the commission of such acts.

In Board of Trustees of the Town of Odell v. Schroeder, 58 Ill. 353, a case often cited, the plaintiffs sued the President and Board of Trustees of the Town of Odell for false imprisonment, and it was held that the municipal' corporation was not liable for the illegal and unauthorized act of its officers in arresting plaintiff. In its opinion the court says (pp. 355, 356):

. “. . . The fact that the trustees adopted the ordinances, and appointed the town constable to see they were executed, did not render the town liable for the unauthorized, illegal and oppressive acts of that officer. They, as the representatives of the town only empowered him to do what the ordinance required, and not to oppress citizens of the place. They did not direct the act to be done, either as a board or as individuals ; they, we must suppose, had no idea the officer would do anything more than the law required. All officers are required to perform their duty, and the electing or appointing power expects them to do no more; and if they should, that power is not responsible for the wrong. This was the individual act of the officers.” (Italics ours.)

In Wisher v. City of Centralia, 273 Ill. App. 168, the plaintiff charged that the City of Centralia and certain police officers maliciously published and posted the name of plaintiff in a certain rogue’s gallery maintained by the said City in the city police station, by means of which the plaintiff was damaged. The defendants contended that in doing the act charged they were pursuing a governmental function and hence were not liable, being exempt therefore from liability for torts. The Appellate Court held that the City of Centralia was not liable for the libel, but the court said (pp. 175, 176):

“So far as the individual defendants are concerned, we do not accept this view. The charge against them is that they maliciously defamed plaintiff. If, as the declaration charges, they did, with malice and evil intent, without reason, publish him as a rogue, they should respond at law to plaintiff. If they made use of their official position to vent their malice, by giving to a malicious publication of false import the color and weight of an official action, then the official appearance given to the action would not excuse them from responsibility, but would add iniquity to the wrong done. We do not know authority nor see reason for saying that those who had done as this declaration charges the individual defendants with doing should not he required to answer in damages to the injured person.” (Italics ours.)

The court ordered that the demurrers of the individual defendants be overruled and that they be ordered to plead to the declaration.

In Robertson v. City of Marion, 97 Ill. App. 332, the plaintiff sued the City and certain of its officers to recover damages sustained on account of his arrest and prosecution by the defendants for a violation of certain ordinances of the city. The Appellate Court, adhering to the established rule, held that the demurrer of the City was properly sustained, but the court further held that the rule that exempted the City did not apply to the other defendants. However, the decision of the trial court sustaining the demurrer of the other defendants to the declaration was approved because the declaration as to said defendants did not make out a prima facie case. Defendant insists that the contention he now raises was not interposed in Styblo v. McNeil, and, therefore, that case is not an authority against his present contention. We are not aware of any case wherein the point now made by defendant was urged save in the Wisher case, supra. If the position of defendant is sound, then a police officer in arresting a citizen for a misdemeanor may wantonly and wilfully and without provocation beat and' seriously injure him, and still the latter would have no redress against the officer for his outrageous conduct. In the case just assumed the officer exceeds his duties and when he commits the illegal assault he is acting as an individual. A police officer is appointed to protect citizens, not to oppress them, and the municipality would have no power to authorize officers to commit illegal acts. Defendant’s contention (2) if upheld would announce a new and dangerous doctrine. The statement in defendant’s supplemental brief, that if we do not sustain his contention the City of Chicago will have extreme difficulty in finding men willing to become or remain police officers, is an unjust reflection upon the members of the police department. The rank and file of the police department is composed of law abiding men'who do not oppress citizens nor commit illegal acts, nor wanton and wilful acts, against them.

We are aware that the legislature has recently passed section 1 — 15 of the Cities and Villages Act (ch. 24, par. 1 — 15, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.1123(1)]), which reads as follows: “Liability for injuries caused by policeman.) In case any injury to the person or property of another is caused by the negligent operation of a motor vehicle by a member of the police department of a municipality having a population of 500,000 or over, while the member is engaged in the performance of his duties as policeman, and without the contributory negligence of the injured person or the owner of the injured property, or the agent or servant of the injured person or owner, the municipality only, in whose behalf the member of the municipal police department .is performing his duties as policeman shall be liable for that injury. . . .” That section does not apply to the instant case because it was not approved until July 9, 1943. Moreover, that section does not exempt a police officer who is charged with wilful and wanton conduct in the operation of a police department motor vehicle, and it must be presumed that the legislature in confining the exemption to the negligent operation of a motor vehicle had in mind the legal meaning of the words “wilful and wanton.”

Century dictionary defines “wilful” as follows: “Due to one’s own will; spontaneous; voluntary; deliberate; intentional: as wilful murder; wilful waste.” Webster defines it as follows: “Self-determined; voluntary ; intentional; as willful murder. ’ ’ Century dictionary defines “wanton” as follows: “Characterized by extreme recklessness, foolhardiness, or heartlessness ; malicious; recklessly, disregardful of right or of consequences: applied to both persons and their acts.” Webster defines it as follows: “Beckless; heedless; malicious; as, wanton mischief.”

In Hull v. Seaboard Air Line Ry., 76 S. C. 278, 281, it is said: “Each of the words, wantonness, wilfulness and recklessness, embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in so far as they give rise to an action based upon punitive damages.”

In Palmer v. Smith, 147 Wis. 70, 75, it is said that the word “wantonly” means “without reasonable excuse, and implies turpitude,” and “such a degree of rashness as evinces a total want of care, ... or willingness to destroy, although destruction itself may have been unintentional.” See, also, Walldren Express Co. v. Krug, supra, p. 478, as to the meaning of the words “wanton” and “wilful.” In that case the court said (p. 479):

“. . . In Chicago City Railway Co. v. Jordan, 215 Ill. 390, we said: ‘Where there is a particular intention to injure, or a degree of willful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes willful or wanton. In such a case there may be an actual intent to injure or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended. ’ A charge of wantonness implies an act intentionally done in disregard of another’s rights, designed and intentional mischief, and not a mere negligent gmission of duty.” (Italics ours.)

Had section 1 — 15 provided that a member of the police department driving a motor vehicle in the performance of his duties would be exempt from responsibility for injuries to another caused by his wilful and wanton conduct, a serious question would arise as to the constitutionality of such an Act.

The judgment of the municipal court of Chicago is affirmed save as to the words, “malice body execution to issue.” As to said words the judgment is reversed.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Louis F. Reinhold, Appellee, v. Frank Lingbeek and Lillian Lingbeek, Now Lillian Piefer, Also Known as Lillian Pieper, Appellants, and Jans Lingbeek, Sr., Appellee.
    Gen. No. 9,874.

      Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    Franklin J. Stransky and Otto W. Berg, both of Freeport, for appellants.
    Ascher & Ellis, of Freeport, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellants, Frank Lingbeek and Lillian Lingbeek, now Lillian Piefer, also known as Lillian Pieper, have appealed from an order of the circuit court of Stephenson county, which issued a permanent injunction restraining the enforcement of their separate judgments, entered against Louis F. Reinhold, the ap-' pellee- in that court. The hearing was had on an appeal from the county court. The court directed the appellee to account for $1,249.28 found due each of the appellants, as claimed by them on their objections to his report, as their guardian. There is no charge or indication that the guardian, Louis F. Reinhold, an attorney-at-law, practicing his profession in Stephenson county, has appropriated to his own use' or benefit any property of his wards. It appears from the record, however, that the guardian invested what we must consider as funds or assets of his wards, as will hereafter appear, in promissory notes which were secured by a second mortgage contrary to section 22 of the Guardian and Ward Act, in force in the year 1920, when the notes and mortgage were accepted by the guardian for definite and ascertainable values in property belonging to his wards.

The judgments were entered on April 28, 1936. It appears from the record that the guardian for some years past has taken the position that a court of equity has broad comprehensive powers to determine questions on equitable principles, according to the facts appearing before it, as distinguished from the limited equitable jurisdiction of county courts, and that on appeal thereto, the circuit courts would have powers, and now should, approve the transaction which is attacked by the wards. This position of the guardian is the sole ground for his complaint for the writ of injunction to restrain the enforcement of the judgments. The transaction of the guardian is now brought into focus in the light of after events and the guardian finds himself’in an unfortunate position, although it appears that he acted in good faith.

The guardian has delayed in making a settlement with his wards, because of his denial of. liability for the amounts with which he is held accountable by the order of the county court, and the judgments of the circuit court. The.charge is made in the circuit court that the guardian was guilty of fraud and conspiracy against his wards, when he loaned their money as he did. The principal question submitted to this court is, whether a court of equity should have accepted jurisdiction over the estate of the minors notwithstanding the judgments of the county and circuit courts. We consider it only justice that the contention of the guardian should be stated more in detail.

It is stated by the guardian in his complaint for the injunction as follows: ‘‘Plaintiff further represents that on an appeal from an order of the county court to the circuit court the sitting judge is bound by the same rules of law in considering a case as the county judge . . . and the county judge lacks full equitable jurisdiction in the consideration of such cases. . . . On the appeal which the plaintiff took he did not have an opportunity to present defenses and the court could not consider all the equitable rights, defenses and principles that should have been applied and considered by the chancellor upon a hearing before him on an equitable complaint. That the jurisdiction of the chancellor on an equitable complaint extends to make a full and complete adjustment of all equitable rights and benefits and to consider equitable principles on, the hearing of this case and the application of the evidence on the hearing. . . . That full and complete equity and justice cannot he done im this case except by a complaint in chancery and a sub-mission to the court having full and complete jurisdiction so that equitable principles, rights and remedies may be fully applied by the court in a complete determination hereof.”

The guardian relies on the case of Chapman v. American Surety Co., 261 Ill. 594 and argues that the facts set forth in his complaint for the injunction warranted a court of equity to accept jurisdiction to review his transaction as guardian and to approve or disapprove the same; that the Chapman case is authority for his contention that his action should be approved and confirmed by a court of equity.

In the Chapman case the Supreme Court states: “This court has more than once stated that courts of equity have a paramount jurisdiction in matters of administration and settlement of estates and may control courts of law in their action thereon, and have also similar plenary jurisdiction over the persons and estates of infants, and in exercising that jurisdiction may cause to be done whatever may be necessary to preserve their estates and protect their interests. (Citing authorities.) The rule now appears to be that courts of equity will not exercise jurisdiction over the administration of estates in ordinary cases.” (Citing cases.) Also, “In settling the accounts of guardians it has been repeatedly held that the probate court may exercise equitable jurisdiction, ‘not its full jurisdiction, but such as is adapted to its organization and the mode of proceeding in that tribunal.’ (Wadsworth v. Connel, 104 Ill. 369.) It lies in the nature of these courts that in the exercise of their jurisdiction they are not confined to legal principles or the rules of common law courts, but exercise equitable powers as well. (1 Woerner’s Am. Law of Administration 2d ed. — sec. 149.) Whenever, within the scope of their statutory jurisdiction, the relief to be administered, the right to be enforced or the defense of an action properly depending before them involves the application of equitable principles, their powers are commensurate with the duties demanding their exercise, whether legal or equitable. (Shepard v. Speer, 140 Ill. 238.)”

Most certainly the county court and the circuit court on appeal had jurisdiction to decide whether the guardian had violated the statutory prohibition against a guardian loaning his wards’ money secured by a second mortgage, and to determine his liability if there was proved a violation of the statute which resulted in a loss of his wards ’ property or rights in property. (Sections 14( 15 and 34 of the former Guardian and Ward Act.) It is therefore evident that said courts had power to apply equitable principles in passing upon defenses of the guardian, and the relief to be administered, upon a hearing of the settlement of the guardian’s account.

In his complaint for the injunction the guardian states that in the hearing before the circuit court on his appeal from the county court ordering him to account to his wards, he filed a new report as guardian in which he set forth in full all the transactions occurring between the time he was appointed guardian up to the time that said report was filed in the circuit court. Manifestly there would be no ground for the acceptance of jurisdiction in the injunction suit, unless the complaint set forth reasons of an equitable nature why his transactions as guardian should be approved by a court of equity, and of which reasons the circuit court, on the appeal, from the county court could not consider because of its limited powers to pass on equitable defenses and remedies. (Shepard v. Speer, 140 Ill. 238.)

In the case of Shepard v. Speer, 140 Ill. 238, on page 246, the Supreme Court states: “This court has held in a number of decisions, that it is only in extraordinary cases that a court of equity will assume jurisdiction in the settlement of an estate. Indeed, in Harding v. Shepard, 107 Ill. 264, an effort was made in this same estate to transfer the settlement of the estate from the probate court to a court of equity, and in the decision of that case denying the right it is said: ‘It is well settled that a court of chancery will not, except in extraordinary cases, supersede the probate court in the administration of an estate. (Citing cases.) To maintain the present bill would be to deprive the probate court of all further power and jurisdiction over the estate. What extra circumstances are there in this case that demand such treatment? We fail to perceive any.’ What was said when the question was presented in the case cited is applicable now.”

It is plain that if the enforcement of the judgments were restrained by a writ of injunction unless there were extraordinary circumstances, such as that the county court did not have power to pass on a transaction of the guardian which a court of equity does have (as was decided in the Chapman case) the court of chancery issuing the injunction would in effect supersede the county court in its adjudication of the question of the settlement of the guardian’s account and the remedy to be administered, because the guardian claimed that he had equitable defenses to be considered on the adjustment of his account with his ward. To hold ■ otherwise would give little force and effect to decisions of county courts involving guardianship accounts and also result in intolerable conflicts between the county .courts and the court of chancery.

We have made the statement that the guardian acted in good faith and this is our conclusion after a careful consideration of the competent evidence in the record on that point. The charge is made in this court that the guardian does not come into a court of equity with clean hands; that he was guilty of fraud and conspiracy. A motion was made by the wards to dissolve the temporary injunction to restrain the enforcement of the judgments. The chancellor finds in his written opinion that the guardian acted honestly and without fraud. On the hearing to make the temporary injunction permanent, another chancellor, after a careful consideration of the testimony of the witness who appeared before him, concurred in the finding of Ms predecessor. Had either of these judges believed that the guardian acted in bad faith or fraudulently, his request for the aid of a court of equity would, undoubtedly, have fallen on deaf ears and been refused. A guardian is required to observe that care and diligence in the performance of his duties that a good and conscientious businessman exercises in Ms own affairs, under like circumstances. (Kingsbury v. Powers, 131 Ill. 182.) With this rule in mind, to its fullest import, we have carefully considered the record in this case and it cannot be fairly said, and it should not be said, that the guardian was guilty of fraud or conspiracy against Ms wards.

Louis F. Reinhold was appointed guardian of the six minor children of Jans Lingbeek and Mary Lingbeek by the county court of Stephenson county on June 14, 1920. The eldest child was then about 17 years of age. Shortly before his appointment Mary Lingbeek died intestate seized of an undivided one-half interest in a farm of 156 acres in that county as a tenant in common with her husband under a deed conveying the farm to her and her husband. She left surviving, her husband and seven children as her heirs-at-law. Soon after the death of Mrs. Lingbeek one of the seven children died in infancy leaving as his heirs-at-law his father and his six brothers and sisters. The farm was occupied by the parents as a homestead at the time Mrs. Lingbeek died. It appears that after .the death of the wife and mother, Jans Lingbeek, as purchaser, was the owner of an undivided one-half interest in the farm, homestead estate in the entire farm and with dower in an undivided one half of the farm owned by his seven children as tenants in common. (Lininger v. Helpenstell, 229 Ill. 369.) Upon the death of his infant son Jans Lingbeek inherited from him, an undivided two fifty-sixths interest of an undivided one half of the farm, or two one hundred-twelfths, making his total title in the farm 58/112ths, as tenants in common with his six children. Each child then owned 9/112ths interest in the farm subject, of course, to the dower right and homestead estate of their father. (Cronkhite v. Strain, 210 Ill. 331.) When Mrs. Lingbeek died there was a purchase money mortgage on the farm to the amount of $6,450.

After the death of his wife and infant son, Jans Lingbeek consulted Attorney Albert H. Manus about the settlement of his wife’s estate and his children’s interests in the farm. Lingbeek was appointed administrator of his wife’s estate, paid her funeral expenses, a small claim for medical charges, and costs of administration, made a final report and was discharged, in due time as such administrator. Mr. Manus and Lingbeek secured the appointment of Eeinhold as guardian of the six children. At that time Eeinhold and Manus had adjoining offices and used a common reception room for their respective clients. These two attorneys and Lingbeek consulted about the guardianship affairs and the interests of the father and his children in the farm and determined what they considered best to be done under the circumstances.

Lingbeek was not willing to release his dower and homestead interests in a partition suit, or in a proceeding to sell his widow’s one-half interest in the farm to pay the debts of her estate. Lingbeek desired to remain on the farm as his home and keep his children together there in his care and custody. Lingbeek did not want to claim his dower and homestead interests against his children. If he desired, Lingbeek was entitled to have his dower assigned out of the rents and profits of an undivided one-half part of the farm. The undivided half interest in the farm, owned by his wife at the time of her death, was required to contribute to his homestead estate. (Grote v. Grote, 275 Ill. 206.) Lingbeek was then about 45 years old. Thus it appeared to the two attorneys that there were complications making it unlikely that a partition suit, or a sale of real estate to pay Mrs. Lingbeek’s debts, was feasible, or for the best interests of the wards.

The result of the discussions between Lingbeek and the attorneys was that Lingbeek should pay the debts of his wife, and that the guardian should sell the wards’ interests in the real estate under a guardianship sale in the county court, the expenses of which proceeding Lingbeek would also pay and that Lingbeek was to be the purchaser at the guardianship sale and to waive his dower and homestead interests by executing a mortgage in favor of the guardian for the amount of his bid at the sale.

It was thereupon decided by the attorneys that the sum of the value of Lingbeek’s dower and homestead interest should be calculated and this amount, added to the value of his undivided 58/112ths. interest in the farm should be deducted from the market value of the farm above the amount of the purchase money mortgage thereon. The result of this computation it was determined, should be the amount of Lingbeek’s bid at the guardian’s sale, as representing the then value of the wards’ interests in the farm. The amount arrived at as the value of the minors’ interests in the ■ farm was $5,500, less four hundred dollars paid by Lingbeek to pay the debts of his widow’s estate and the costs of the guardianship sale, thus leaving $5,100 which was to be the amount of Lingbeek’s bid at the sale. Lingbeek at that time had no ready cash to make good his bid as agreed upon. There is some evidence in the record to the effect that Lingbeek then had farm equipment and livestock of the probable value of $3,000, but it is mere speculation to say that he could have borrowed thereon a sufficient amount to become a cash bidder at the sale. By giving the guardian a mortgage on the farm as security for his bid at the sale it was realized that he would therein waive his dower and homestead interests. It was also known to the attorneys that the mortgage to be executed by Lingbeek would be a second mortgage on the farm. The mortgage of Lingbeek was to secure six notes for $850 each, with 5% per cent interest, and payable to his six children respectively.

There was an understanding between Lingbeek and the guardian that the expenses of supporting each ward was to be a set-off against the respective notes when each ward became of age; or, to state the matter exactly, it was understood that Lingbeek would file claims for the support of'his children in the guardianship estate. We comment here that the guardian was either not well informed of the duty of a father to support his minor children, or he was willing to assume a grave risk. (46 C. J. 1275; ib., p. 1117.) After this plan of procedure was^ adopted, the two attorneys consulted the county judge and explained to him the conditions and circumstances of the matter including the prohibition of the statute against a guardian making a loan of his wards’ property secured by a second mortgage. The county judge stated that he would approve the second mortgage under the facts as presented to him by the attorneys.

The guardian presented his petition for the sale of the wards ’ interests in the real estate. An order was entered directing the sale for cash, and the guardian made report of sale in which he stated that the sale resulted in a cash sale for $5,500 and Lingbeek was the best bidder. In fact the sale was duly advertised and Lingbeek was the only bidder. The sale was made subject to the homestead estate and dower of Lingbeek, as he was not willing to release those rights as against strangers, but was willing to do so in favor of his children, as we have before stated. The guardian executed and delivered his deed to Lingbeek as the purchaser at said sale.

It is objected that the testimony of Manus and Reinhold relative to their conversation with the county judge was incompetent on the ground that an action of a court of record cannot be proved by parol evidence. This is the general rule. (McIntyre v. People, 103 Ill. 142.) However, we are of the opinion that the testimony is competent, under the charge made here that the guardian does not come into a court of equity with clean hands. (27 C. J. 57, section 191, et seq.)

Lingbeek executed the six notes and the mortgage and the guardian secured the written order of the county court approving them. The notes and mortgage were delivered to the guardian and he held them as assets of his wards’ estate.

Subsequent events in the matter have little bearing on the question presented on this appeal. It is sufficient to state that Lingbeek, with the aid and approval of the guardian, borrowed money secured by mortgage which was made a first lien on the farm to pay off the purchase money mortgage. The guardian for a time released the mortgage held by him from the records in the recorder’s office. Afterwards, by the same means, another first mortgage was placed on the farm for a larger amount to pay the prior mortgage and, at the insistence of Lingbeek’s children, to build a new house on the farm. The last mentioned mortgage has been foreclosed and the farm lost to Lingbeek and the wards. Notes of the guardian’s estate which are not involved in this appeal, have been paid by Lingbeek, or the payment thereof successfully defended by the guardian in other litigations under defenses not made in this case. It appears that Lingbeek is now insolvent. (He has not filed claims against the wards’ estate for expenses of their support.)

It is clear that the guardian determined and fixed a definite value of the interests of his wards in the farm and he effected a commutation of their property; that is, he fixed and changed the wards ’ values in land to a money value. This money of his wards the guardian loaned on notes secured by a second mortgage, contrary to the statutory prohibition, and he must abide by the result. Equity follows the law and there was not presented to the circuit court by the guardian’s complaint, for the writ of injunction extraordinary circumstances warranting that court, as a court of equity, to assume jurisdiction over the settlement of the guardian’s account with his wards. The judgments foreclose any consideration here that they are not correct in amounts.

The case is reversed and remanded to the circuit court of Stephenson county with direction to dismiss the complaint for want of equity.

Reversed and remanded.


author: Mr. Justice Dove

text:
    Board of Education in and for School District of City of Rockford, Illinois, Otherwise Known as School District No. 205 of Winnebago County, Illinois, Appellant, v. Board of Education of Non-High School District No. 206 of Winnebago County, Illinois, Appellee.
    Gen. No. 9,912.
    Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    Charles H. Davis, of Rockford, for appellant.

      Hyer & Gill, of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellant sued appellee in the circuit court of Winnebago county to recover the sum of $4,329.07, balance on a claim against appellee for tuition for the 1941-1942 school year, under section 96 of the School law (Ill. Rev. Stat. 1941, ch. 122, par. 104 [Jones Ill. Stats. Ann. 123.111]). The sum sued for represents depreciation charged on appellant’s buildings and equipment, allocable to that part of the cost thereof paid by the Federal Government under a Public Works Administration (P. W. A.) grant. Appellee ’S' motion to strike the amended complaint was sustained and the suit was dismissed at appellant’s cost, and the plaintiff appeals.

Section 96 of the applicable statute provides that any eighth grade graduate of a non-high school district may attend a high school in another school district, and that his tuition shall be paid by the board of education of the non-high school district in which he resides. The applicable portion of the section of the statute in force during the 1941-1942 school year, read as follows:

“The tuition paid shall in no case exceed the per capita cost of maintaining the high school attended, excluding therefrom interest paid on bonded indebtedness which shall be computed by dividing the total cost of conducting and maintaining said high school by the average number of pupils enrolled, including tuition pupils.”

A large number of pupils from appellee non-high school district attended the 9th, 10th, 11th and 12th grades of a junior high school and two senior high schools in appellant high school district for the school year ending June 30, 1941. These school buildings were constructed and equipped immediately prior to the 1940-1941 school year. Of the total cost of $3,215,606.53, the P. W. A. paid 45 per cent or $1,447,022.94 and appellant paid the remaining 55 per cent or $1,768,583.59, by the proceeds of a bond issue. That portion of the total depreciation allocated to cost paid by the P. W. A. was $32,021.38. Of this sum, $4,329.07 was charged to appellee and was based on the proportion of the number of pupils from appellee non-high school district to the total number of pupils. The rate and method of computing the depreciation is not questioned.

The total amount of the claims for tuition, as corrected, was $91,255.55, which included all depreciation charges, both the amount allocated to the 55 per cent of cost paid by the high school district and the 45 per cent paid by the P. W. A. grant. After the corrections were made, upon a check and audit of the claims, appellee approved, allowed and paid thereon the sum of $86,926.48, refusing to pay only the sum of $4,329.07 allocable to the depreciation charged to it on account of the P. W. A. grant.

Appellee’s contention is that under the quoted portion of section 96, depreciation is not a proper item to be included in computing the charge for tuition, and, that in any event, depreciation allocable to donated capital is not only improper, but inequitable.

In People v. Chicago & N. W. Ry. Co., 286 Ill. 384, (394, 395), the railroad company appealed from an order of the county court of Kane county overruling -tax objections. The question involved was the constitutionality of sections 93, 94 and 96 of the School law. Section 96 of the 1913 act was amended in 1939. In construing that portion of the section above quoted, and after referring to Cook v. Board of Directors School Dist. No. 80, 266 Ill. 164, the court on pages 394 and 395 of the opinion said:

“The provisions of that act (the act of 1913) relating to the transfer of pupils and payment of tuition were practically the same as in the case at bar, except that interest on bonded indebtedness was not excluded from the computation of tuition. ... It is evident that the legislature intended by this provision to secure as even a distribution of cost as it is possible to obtain; that the ‘total cost’ of maintaining such high school should include all expenses incurred by the high school district in maintaining such high school, the rental of any buildings therefor not owned by the high school district, and a reasonable charge for the use and depreciation of buildings owned by the high school district; and that interest paid on bonded indebtedness should be excluded from such computation to avoid duplication, which would necessarily result if interest on bonded indebtedness as well as said use and depreciation was to be charged. The computation of the tuition on a basis of excluding interest on bonded indebtedness does not, therefore, create an inequality.”

In the later case of Board of Education of Earlville Community High School Dist. No. 380 v. Board of Education of Non-High School Dist. of LaSalle County, 343 Ill. 464, 469, the plaintiff claimed and the trial court allowed as a part of the tuition, an item of $3,500 for use and depreciation of the school building. Of this item, one half was for use and the other half for depreciation. On appeal appellant conceded that depreciation is a proper item in determining the cost of maintaining a high school building and the court in the course of its opinion at page 469 said:

“The appellee owned the school building, and from the exclusion, by the statute, of interest on bonded indebtedness, the implication follows that, in ascertaining the cost of conducting and maintaining the high school, a charge for the use of the building may not be made. To maintain means to hold or keep in a particular state or condition, especially in a state of efficiency or validity; to support, sustain, or uphold; to keep up; not to suffer to fail or decline. (Webster’s New Int. Diet.) The maintenance of a high school building does not, under section 96 of the School law, authorize a positive charge for the use of the building in computing the tuition to be paid for the pupils attending the high school from a non-high school district. Accordingly, as against the appellant, the sum of $1750 for the use of the building should have been omitted from the cost of conducting and maintaining the high school of the appellee for the year 1926-1927.”

While the question involved in this case was not at issue in the Earlville case it is to be observed that in People v. Chicago & N. W. Ry. Co., 286 Ill. 384, the quoted language of the court was one of the reasons for holding that the quoted provisions of section 96 met the constitutional requirement for extending equal privileges to all children similarly situated.

As was said in Board of Education v. Board of Education, 343 Ill. 464 at page 467, “It appears that it was the legislative intent that such cost (of conducting and maintaining a high school) should be based upon and determined by two elements, — first, the expense of conducting or operating the school, and second, the maintenance of the school property.”

It is obvious that the “cost of maintaining the high school” mentioned in the statute, is a more comprehensive term than the cost of maintaining a school building, and necessarily includes the construction or acquisition and the maintenance of a school building by the high school district, or the rental of a building not owned by it and it is equally plain that depreciation of a building owned by the school district necessarily enters into the cost of maintaining the school. Outside of the salvage value at the expiration of the useful life of the building, the money spent for its construction or acquisition is gone, beyond any power of the school district authorities to recover any part of it. We are not concerned with the theory and practice of accounting by business and industrial enterprises, in setting up depreciation charges and reserves to accumulate a replacement fund, to be used at some future undetermined time, as discussed in Lindheimer v. Illinois Bell Tel. Co., 292 U. S. 151, 78 L. Ed. 1182 (1192, 1193), and Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U. S. 98, 87 L. Ed. 1286, relied upon by appellee. Those factors, as employed by such enterprises, are not analogous to the methods of accounting and of raising funds, by which school districts are governed through express statutory provisions. The sole question before this court is the interpretation of the law applicable to school districts, and the cases relied upon by appellee are of no assistance in that behalf.

School districts can enforce the raising of their revenues only by the levy of taxes. It is well settled that school boards and other taxing authorities have no power to make a levy to accumulate a fund for use at some undetermined future time. (People v. Baltimore & O. S. W. R. Co., 366 Ill. 318, 325; People v. New York, C. & St. L. R. Co., 353 Ill. 518, 523; Cleveland, C., C. & St. L. R. Co. v. People ex rel. Selby, 208 Ill. 9, 14.) Consequently, there is no process of accounting 'by which a school district can accomplish that end, but there is no prohibition against using depreciation as a current expense, and that is the practice generally employed, as in the case at bar. This practice is sanctioned by the fact that depreciation occurs currently each year, and under the last two cases above cited, it could not be carried otherwise than as a current expense. New buildings are constructed by the proceeds of bond issues, for which the statute makes express provision.

Appellee’s criticism of the holding in People v. Chicago & N. W. Ry. Co., 286 Ill. 384 that excluding interest on bonded indebtedness avoids duplication, is without merit. Depreciation must be carried as a current charge, and if interest on bonded indebtedness for the construction of the building is also carried as a current charge, there would be a duplication.

In School Dist. No. 24 v. Smith, 82 Ore. 443, 161 Pac. 706, relied upon by appellee, the statute there under construction specified that the cost of educating each high school pupil of any high school district shall be • determined by dividing the total amount “expended” by the high school during any school year by the average daily attendance of pupils enrolled in the high school or high schools of the district for the same year. The court held in that case that “expended” means “paid out, disbursed” and that depreciation of the building cannot be properly termed an “amount expended” during the year and therefore could not be included in a claim for tuition. In School District v. Smith, 84 Ore. 50, 164 Pac. 375, also cited by appellee, interest on money borrowed in connection with the construction of a high school building was disallowed on the basis that there is a difference between construction and maintenance, and that the statute made provision only for the recovery of money expended for maintenance. The Oregon statute is materially different from the statute of this State, and neither of those cases is of any assistance here.

As a further, evidence that the legislature intended depreciation to be charged as an item of the “cost of maintaining the high school,” it is well to note that the only item mentioned by the statute to be excluded from the cost of maintaining the high school is “interest paid on bonded indebtedness.” It is a cardinal rule of statutory construction that the expression of one thing or one mode of action in an enactment excludes all others. (People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 85; People v. Collins, 351 Ill. 551, 555.) At the third special session of the legislature in 1934 (Laws 1933-1934, p. 248), section 96 was amended so as to also exclude, in determining the per capita cost of tuition, the amount of State aid received during the year under paragraph (f) of section 211 of the same act; again in 1937 (Laws 1937, p. 1119), section 96 was again amended, omitting that provision, but retaining the provision for excluding interest on bonded indebtedness. Section 96 has been ' amended many times, but there has never been a provision excluding depreciation in determining the cost of tuition. A most significant demonstration of the legislative intent is the 1943 amendment to section 96 (Ill. Rev. Stat. 1943, ch. 122, par. 104 [Jones Ill. Stats. Ann. 123.111]), by which the following provision was added:

“Depreciation on the building and equipment of the high school attended shall be included as part of the cost of maintaining the high school attended, and the amount of annual depreciation on' such building and equipment shall be dependent upon the useful life of such property.”

In our opinion the conclusion that depreciation is a proper charge to be included in the 11 cost of maintaining the high school,” is inescapable. There is no question of fraud or mistake in this record and appellee, after checking and auditing the claims, and approving and voluntarily paying the depreciation charged to it on account of the 55 per cent allocable to the money furnished by the high school district is not in a position to question that part of the claims.

Counsel for appellee insist that in any event, depreciation allocable to donated capital is not only improper, but inequitable. We do not think so. Donations such as P. W. A. grants, to school districts are expressly authorized by statute. (Ill. Rev. Stat. 1943, ch. 29, par. 33a [Jones Ill. Stats. Ann. 137.23 (2)].) Appellee concedes that if the P. W. A. grant is included in the depreciation basis, section 96 would not be unconstitutional, as providing for double taxation, inasmuch as a Federal tax on the one hand, and a State tax on the other, is involved. It cannot be controverted that when such a grant is paid to the school district, the money, and successively the buildings and equipment constructed or purchased therewith, become the property of the district, as much so as if the money had been raised by a bond issue or by direct taxation. There is no difference in the quality of the ownership. The only difference is in the source of the funds used in acquiring a site or in the construction of the school buildings. This can be of no concern to the taxpayers of the non-high school district, inasmuch as they did not contribute thereto by any ad valorem tax upon their property. When a building is constructed and depreciation sets in, the depreciation is a specific loss to the district which owns the building, whether it was constructed wholly by taxation or by donated money or by both. Such depreciation entails the factor of replacement, and is obviously a part of the “cost of maintaining the high school.”

In the instant case the non-high school district is charged with only the proportion of the depreciation, including that part allocable to the P. W. A. grant, as represents its proportion of the total number of high school pupils. The burden of the remainder of the depreciation is upon the high school district. This method of apportionment of cost is in accord with the statute. If the whole of such depreciation, or the portion allocable to the P. W. A. grant, is charged only to the taxpayers of the district wherein the building is located, the taxpayers of the non-high school district will enjoy the same benefits and privileges of the high school as the taxpayers of the high school district, without contributing to the loss occasioned by such depreciation* and put that burden upon the latter district. Such a situation would bring about an inequality in the burdens of the taxpayers of the two districts enjoying the same privileges, and would nullify the legislative intent “to secure as even a distribution of cost as it is possible to obtain” as mentioned in People v. Chicago & N. W. Ry. Co., 286 Ill. 384.

In Board of Education of Paris Union School Dist. No. 95 v. Board of Education of Non-High School Dist. of Edgar County, 231 Ill. App. 415, the appellant contended that depreciation should be based on the cost of the property. In denying this contention the court said at pages 421, 422 of the opinion:

“It is suggested that school districts, in many cases, are donees in charitable donations, and receive gifts of money, sites, buildings and equipment, and that under the rule contended for by the appellant, these would operate to the benefit of the non-high school district the same as to the donee intended. If the rule should be established, as contended for by appellant, it could be equally as cogently contended that the serving district had misappropriated its funds, entered into improvident contracts, paid exhorbitant prices for its site, buildings and equipment and that the “cost price” of such property was grossly unfair and unjust.

“It would seem beyond question that the depreciation value of the property should be based upon its varying value from year to year, in order to arrive at a result that would replace the properties, and we are unable to arrive at any fair and just method of computing the value of rent for use and occupation, when it is to be computed upon a percentage of value basis, except to make the computation upon the value at the time of the use.”

In Board of Education v. Haworth, 274 Ill. 538, relied upon by appellee, a statute of 1915 provided that the tuition of non-high school pupils should be paid from the State School fund, which was raised by taxation of all property in the State. The court held the statute was unconstitutional because it compelled the taxpayers of the school district maintaining the school to contribute indirectly to the tuition of pupils in districts having no high school, and thus contravened the constitutional requirement for uniformity and equality of taxation, but that case has no application to funds donated by the P. W. A. which are not raised by a State tax.

Appellee urges as analogous the fact that in determining income tax under the Internal Revenue Code, depreciation on items represented by donated capital is not deductible (citing Southern Power & Mamifacturing Co. v. Commissioner of Internal Revenue, 82 F. (2d) 104; Kell v. Commissioner of Internal Revenue, 88 F. (2d) 453; Detroit Edison Co. v. Commissioner of Internal Revenue, 131 F. (2d) 619). Those holdings are because of the express provisions of the Internal Revenue Code to that effect. See sections 113 and 114 as amended in 1942. The statutes of this State contain no such provision, and those cases have no application here. Nor does the fact that Federal aid received for part payment of the salaries of vocational teachers is not included in the tuition base, have any bearing on the issue here. The teaching of vocations may be discontinued at any time, whereupon the Federal aid would no longer be forthcoming, while depreciation on a building or equipment is a fixed charge and an unavoidable loss to the school district which owns it, with the ultimate burden of replacement.

The trial court erred in dismissing the suit on appellee’s motion. Furthermore costs are not assessable against school officers in cases of this character. (Ill. Rev. Stat. 1941, ch. 122, par. 290 [Jones Ill. Stats. Ann. 123.360].) The judgment appealed from is reversed and this cause is remanded to the circuit court with directions to overrule appellee’s motion to strike the amended complaint and to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    Eugene Baker, Minor, by Robert Baker, His Next Friend, Appellant, v. Cities Service Oil Company and Harry Kopp, Appellees.
    Gen. No. 9,924.
    Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    George Spitz, of De Kalb, for appellant.
    Sears, O’Brien & Street, of Aurora, for appellees; Barnabas F. Sears and William C. O’Brien, both of Aurora, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action by appellant to recover damages for personal injuries. The complaint alleged that a gasoline truck belonging to appellees, was parked on 9th street in the city of DeKalb, for the purpose of unloading gasoline to underground storage tanks at a filling station there located; and that while the truck was so parked, appellant, age five, in company with another small child, and while crossing 9th street, was struck by a passing car, as he came from behind the truck.

Appellees filed their motion to dismiss the complaint on the ground that it failed to allege a cause of action against them, and alleged no act or acts on their part which proximately caused the injury complained of. The motion to dismiss was granted. Appellant elected to stand by the pleadings, and judgment was entered for appellees.

The sole question involved in this appeal appears to be whether the negligence charged was the proximate cause of the injury. It is urged by appellees that no facts are alleged in the complaint constituting negligence and that the presence of the truck upon the street was merely a condition and not the proximate cause of plaintiff’s injuries.

Similar legal situations respecting liability such as involved in this suit are numerous and general in application. As stated in Briske v. Village of Burnham, 379 Ill. 193, on page 199, “If a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent, independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.” Also see Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300. Many cases involving this rule will be found referred to in the two above opinions.

The needs of society are fluid and changeable. Necessity puts in motion forces which are so much a part of custom and social utility that they become a compelling test and standard in determining how established rules of law shall be applied.

Appellees ’ truck was not in motion, but was parked, connected with storage tanks at the filling station, and engaged in delivering gasoline to such tanks. Its position upon the street was obvious to all persons, and a condition necessary to be reckoned with by the traveling public. Under the above rule, we are not of the opinion that it can be considered an operating, efficient, or proximate cause of appellant’s injuries.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.


text:
    Frank Lickus and Antoinette Lickus, Appellants, v. Joseph H. O’Donnell and Helen E. O’Donnell, Appellees.
    Gen. No. 9,931.

      Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    George S. McGaughey, of Waukegan, for appellants.
    Mason, Bills & Mason, of Waukegan, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action for fraud and deceit brought by appellants. Appellees were owners of Lot 1 in Block 15, in Frederick H. Bartlett’s North Shore Estate, a subdivision adjacent to the city of Waukegan. They had this lot listed for sale with the real estate firm of Noll & Noll, in Waukegan. Appellants’ son, Charles, was interested in the automobile junk business. He desired a business location on Belvidere Road, along which the subdivision lay. He went to see-the above named real estate brokers about obtaining such location. They took the young man out along this road and where the above subdivision is located. Charles states they came to a place which was marked with a sign, “For Sale — Noll & Noll,” and that the brokers advised him this was the lot they had for sale. He says he “didn’t care much” for the lot shown him; that it was low and wet; that he told the brokers he would prefer a lot upon higher ground, and would be willing to pay $200 more for such a location. He states he advised the brokers that he would wait a few days to see if they could find him a lot further up on the hill; and that if such a location could be found, he would much prefer it.

The situation terminated in appellants, parents of Charles Lickus, purchasing through the said real estate brokers, Lot 1 in Block 15 of the above mentioned subdivision. Mr. Frank Lickus paid the purchase price therefor to the brokers, who in turn, delivered to him a deed from appellees to said lot. Subsequently, they erected a sheet metal garage on the lot which Charles claims the brokers showed him as the one they had for sale. Some months after the garage had been built, appellee, Joseph II. O’Donnell, in passing the garage, stopped and inquired of Charles if that was supposed to be the lot his father had purchased from him, and upon being advised by Charles that it was, Mr. O’Donnell stated there must be a mistake because the lot he had owned was up on higher ground. He told Charles that he should look into the matter. This was the first time Charles and Mr. O’Donnell had met. The appellees had never met appellants. The result was that appellants discovered they had erected their garage on Lot 1 in Block 14, instead of on Lot 1 in Block 15, which was the lot they had purchased from appellees. Thereafter, appellants moved the garage to Lot 1 in Block 15, which was about 150 yards distant, and purchased another lot adjoining Lot 1 in Block 15, on the west.

This suit was instituted by appellants for fraud and deceit, seeking to recover damages from appellees occasioned by the erection of the garage upon the wrong lot and the removal thereof to the correct location.

At the close of plaintiffs’ evidence, on motion of appellees, the court entered judgment for the defendants. Plaintiffs bring this appeal.

Appellants cite three cases in support of their position. The first case referred to is that of Hahl v. Brooks, 213 Ill. 134. In that ease, the vendor participated in a deliberate fraud upon the purchaser by concealing from him the existence of a mortgage on the premises. There is nothing in this case to bring the parties into a similar situation. The next case referred to is that of Owens v. Union Bank of Chicago, 260 Ill. App. 595. That was a suit to rescind a purchase contract. It was part of the written contract that the lot purchased would be located in Calumet City, whereas it was not. The third case is that of Nelson v. Pederson, 305 Ill. 606. This was also a suit for cancellation of purchase contract. The purchaser received from the vendor a preliminary contract for a certain described lot. When the final and completed contract was prepared by the vendor, a different lot number was inserted. The court there found that the vendor had signed the first contract of sale, and that such a mistake was ground for rescinding the purchase contract, where the purchaser, without negligence, had entered into same through a material mistake of fact (p. 610).

In the present case, we do not find where appellees had anything to do with the sale of their lot to appellants, or in any way participated therein. When Mr. Liekus advanced the purchase price to the brokers, they secured the deed from appellees and delivered same to appellants.

With respect to the charge of fraud and deceit, appellees urge the rule that to recover for same in a sale, it must appear the party making the representations knew them to be false and made them with the intent to deceive.

Fraud and deceit usually embody some design or motive to deceive a person to his injury. It therefore generally originates through some plan or scheme to practice deception, and the common purpose of such acts and dealings is to obtain a profit or advantage to another’s injury, although benefit to the guilty part is immaterial as the gravamen of the action is injury to the plaintiff and not benefit to the wrongdoer. The very nature of the term “fraud and deceit’’ contemplates a state of mind affirmatively operative with a secret and furtive design, based upon a motive of self-interest, ill will or some other ulterior purpose. The rule is firmly established that the existence of a fraudulent intent or an intent to deceive, is an indispensable element to the successful maintenance of an action for fraud and deceit. Merwin v. Arbuckle, 81 Ill. 501 (cases cited); Tone v. Wilson, 81 Ill. 529, 533, 534; Schwabacker v. Riddle, 99 Ill. 343, 348; Kimbell Trust & Savings Bank v. Olsen, 239 Ill. App. 609, 617; Cantwell v. Harding, 249 Ill. 354; Crocker v. Manley, 164 Ill. 282.

Three witnesses testified on behalf of appellants. They were Charles Lickus, a young friend named Carl G-eske, who was with him when they made the trip with the brokers to view the property, and Mr. Frank Lickus. We find no circumstances in the testimony tending to prove fraud and deceit on the part of appellees. There is nothing tending to prove they had any notice or knowledge the brokers had undertaken to exhibit their lot to Charles, or that in doing so, they had shown him the wrong lot. Charles was dissatisfied with the location shown him and expressed a desire for a lot on higher ground and a willingness to pay more for same. So we do not find a situation where appellees by plan or design caused to be exhibited to Charles a lot which was satisfactorily situated, and conveyed a less favorably situated lot. Nor do we find the question of concealment of lien or mortgage, nor any fault in the title.

By way of observation, we might say that this case involves the question of identity of property, rather than active fraud and deceit. It is generally considered on the question of identity of property, that where a vendor points out a lot or certain tract to a purchaser, he is bound to do so correctly, and where the purchaser is ignorant of the location, he has a right to rely upon the positive statement and representation of the vendor and to hold him responsible. However, cases so holding are based upon statements made by the vendor to the purchaser. Jack v. McConkey, 208 Ill. App. 84; Lawson v. Vernon, 38 Wash. 422, 80 Pac. 559, 107 Am. St. Rep. 880; Lee v. Bielefeld, 176 Wis. 225, 186 N. W. 587. Reference has been made to the West Reporter System — Digest Title— Fraud, Key No. 4. Also see 37 C. J. 8., par. 59, p. 343; and par. 52, p. 308.

In this case, appellees and appellants were strangers. Appellees had nothing to do with exhibiting or pointing out their lot to appellants. They had nothing to do with the circumstances surrounding appellants’ purchase of the lot. The land was divided into blocks and lots with the respective blocks and lots designated by number, according to a plat. Charles says he did not look at the plat. Appellants knew they were buying Lot 1 in Block 15. This lot belonged to appellees. The deed presented to the vendors by the real estate brokers for execution conveying their lot to appellants, contained the proper legal description. There was nothing about the transaction to put appellees upon notice that appellants might have viewed some other lot in the subdivision, or how many lots they might have viewed before selecting that belonging to appellees. Therefore, we find that the transaction in this case was free from any representations by the vendors to the purchasers. Under such circumstances, we are not of the opinion appellees can be charged with liability.

The judgment of the trial court is affirmed.

Judgment affirmed.


text:
    Otto Kerner, Attorney General of the State of Illinois, v. William George, etc., et al. Harper Moulton, Appellant, v. Merchants National Bank of Aurora and George F. Barrett, Appellees.
    Gen. No. 9,899.
    Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    Coburn & Coburn, of Chicago, for appellant; Louis T. Herzon, of Chicago, of counsel.
    Reid & Ochsenschlager, of Aurora, for certain appellee ; Frank R. Reid, Jr., of Aurora, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Fannie B. Henderson, late of Kane county, died testate on May 29, 1931. Her last will and a codicil thereto were duly admitted to probate by the probate court of that county, and letters testamentary were issued to William George as executor on June 30, 1931. The fifth paragraph of the will, out of which this controversy grew, provides:

“Fifth: I give, devise and bequeath all reversions and remainders, and all the rest residue and remainder of my estate, real, personal and mixed and wheresoever situated unto William George of Aurora, Illinois as Trustee for the purpose of establishing a home for old people, men and women — especially husbands and wives. The same to be in memory of my father William W. Bishop and my mother Julia A. Bishop, and to be known as the Bishop Memorial Home. The said home to be located on the farm now owned by me and North of the City of Aurora. Belying upon the judgment and discretion of my friend, William George, named as trustee herein, I request him to»take all steps deemed necessary by him to carry out the provisions of this my will in establishing said Bishop Memorial Home, and to do so as soon as convenient after my decease. ’ ’

The sixth paragraph authorized the executor to sell and dispose of all assets of the estate and reduce the same to cash, and to sell at such prices and to such persons as he should see fit, without obtaining the sanction or consent of any court.

On June 8, 1935, the attorney general filed a complaint in the circuit court of Kane county to remove George as such trustee, charging him with incompetency, mingling of his accounts as executor and as trustee, and losses to the estate from unauthorized investments. In July 1938, while the complaint was still pending, and undisposed of, George filed a petition setting up that he had been studying a plan for the construction and operation of the home, submitted by a group of experts in that field, doing business under the name of “Betirement Homes,” alleging he was informed that they had spent the past four years in accumulating data and formulating the plan; and praying for leave, as trustee, to enter into a contract with “Retirement Homes’’ under the terms of the plan. No action was taken on the petition, and on October 3, 1938, the court entered an order removing George as trustee, and appointing appellee, The Merchants National Bank of Aurora, as successor trustee.

Thereafter, on September 12, 1941, appellant, Harper Moulton filed his second amended intervening petition in the cause, hereinafter for convenience called the intervening petition, seeking specific performance by appellee bank, as successor trustee, of an alleged contract between appellant and the former trustee concerning the establishment and operation of the memorial home, an accounting by the successor trustee and payment to appellant of certain sums allegedly due him under the contract. On October 4, 1941, the circuit court entered an order granting appellees’ motion to dismiss the intervening petition, for insufficiency, and this court dismissed an appeal therefrom because it was not a final and appealable order. Thereafter, in the circuit court, appellant elected to stand upon the sufficiency of the intervening petition, and on motion of appellees, the court entered an order striking it for insufficiency and dismissing it for want of equity, with judgment for costs against appellant. The cause is here a second time on his appeal from the latter order.

The question presented is whether the intervening petition states a cause of action against the trust estate. It alleges that the value of the trust property was in excess of $750,000, the greater portion of which consisted of improved and unimproved real estate, with liquid assets of approximately $100,000 in cash and convertible stocks and bonds; that the available liquid assets were insufficient in the establishment of the home as contemplated or intended by the testatrix and specified in her will; that because the price of real estate was depressed it was deemed inadvisable and inexpedient to dispose of it at a forced sale; that George, as trustee, was invested by the will with the necessary powers and duties relating thereto, including each and every power of judgment and discretion concerning the establishment, maintenance and operation of the home, and pursuant thereto employed appellant to devise ways and means in best effecting the purpose of the trust, the successful maintenance and operation thereof and the suitable accommodation, maintenance and support of the greatest possible residents and occupants, all within the limits and limitations of the trust estate; that pursuant to such employment appellant caused an appraisement and survey to be made of all securities, real estate and all other avails of the trust; secured and prepared plans for the erection of suitable buildings, improvements and facilities; investigated, conferred and consulted with various persons relating to management of the home upon completion ; conceived and perfected a publicity program, with the objects: (1) to interest large corporations to make reservations for their aged employees for a stipulated consideration payable by such corporation; (2) to obtain the good will and cooperation of divers social agencies as well as philanthropic persons, having in view the obtaining of funds to maintain aged persons having no income or funds; and (3) to interest and solicit other aged persons with ample income and funds to make reservations at the home for a stipulated entrance fee and maintenance fee; that petitioner interviewed and solicited certain banks and mortgage houses in connection with a first mortgage construction loan for approximately $250,000 secured by the real estate of the trust; that he spent approximately four years in such activities, and as a result he secured more than 30 reservations at $2,000 entrance fee, and $60 per month residence fee, all of which were approved by the trustee, George; that appellant advanced and spent large sums of money, time and effort in connection with the trust, and that George, as trustee, agreed to compensate him “with an amount equal to 17% of all receipts and obtained by the trustee from the individual reservations and contributions secured by the petitioner,” and also the right to assume the management, maintenance and operation of the home upon completion, subject to the approval of the trustee at all times; that the agreement was entered into in consideration of the services rendered during the four year period and the outlay by the petitioner of the expenses and costs incidental thereto; that in order to most conveniently effect the intent, purpose and object involved, it was agreed to organize a corporation to be known as the Bishop Foundation, Inc., and that the petitioner would assign all his rights, titles and interests to a similar corporate body, to be thereafter incorporated under the name of “Retirement Homes, Inc.”

The intervening petition then sets out the filing of the petition by George, as trustee, for leave to enter into a contract with “Retirement Homes,” the removal of George, as trustee, the appointment of appellee bank as successor trustee, and alleges the refusal of the latter to carry out the alleged agreement between the former trustee and the intervening petitioner; alleges the petitioner in good faith, under the style and name of “Retirement Homes” expended divers and necessary costs for office space, stenographers, clerks, phone service and other costs; that there is due petitioner for services for four years, $20,000; for commissions at 17 per cent on reservations procured, $11,138; and for costs and expenses advanced, $12,000; aggregating $43,138. It is also alleged that the petitioner made two collateral assignments of his interests to secure loans of $300 and $200, respectively. The copies of the assignments, attached as exhibits, purport on their face to be absolute.

Attached as an exhibit, specifically as the basis of appellant’s claim, is a purported copy of an agreement between “Bishop Foundation, and Illinois Corporation not for profit, hereinafter referred to as the Foundation, and Retirement Homes, Incorporated, an Illinois Corporation hereinafter referred to as the Management.” By adopting the purported agreement as the basis of this action, the intervening petition shows on its face that it was not an agreement between appellant and the former trustee; and by a further allegation it appears that appellant was to assign all his rights, title and interest in the matter to “Retirement Homes,” so that, on the face of the petition, he would have no interest upon which a cause of action could be based. Neither the exhibit nor the intervening petition shows any date of the purported agreement, nor by whom it was executed on behalf of either of the alleged corporations, and there is no allegation that either of the alleged corporations was ever organized.

It was manifestly the intention of the testatrix that the trustee himself should assume the duties of establishing the home and take the necessary steps to accomplish that purpose. Appraising the assets would be a simple matter, requiring no considerable effort or length of time. Employing an architect would likewise be a simple matter, and there is nothing in the context of the will to justify the legal conclusion asserted by appellant that the testatrix intended to provide for adequate maintenance and support of the greatest possible number of residents and occupants within the limits and limitations of the avails of the trust estate, or that she intended to establish a boarding house for well to do occupants able to pay for the accommodations, with an expensive publicity campaign and an initial incumbrance of $250,000 on the real estate. Organizing a corporation to hire another corporation to take over the duties of the trustee, with power in the hired corporation to hire the management and conduct the institution, with preliminary expenses of over $43,000 without any actual construction being begun, is so foreign and contrary to the manifest intention of the testatrix, and so unauthorized, that it could form no basis for a claim against the trust estate, and no court of equity would allow the trustee compensation for such expenditures.

The general rule is that persons employed by a trustee have no claim against the trust estate, but only against the trustee personally, and a trustee cannot create a lien on a trust estate in favor of a creditor, or charge the trust estate even by his contract, without express authority given by the instrument creating the trust. (Wahl v. Schmidt, 307 Ill. 331, 339; Johnson v. Leman, 131 Ill. 609.) There is no such authority in this case. Even if the trust estate received some benefit from the alleged services of appellant, which the intervening petition fails to show, it cannot, on that account, be held liable to appellant upon a theory of implied liability. It is only where the estate would be required to pay the trustee if he paid the claim and the latter is insolvent or nonresident, that the estate can be directly held in a proceeding in chancery. No such case appears here. The intervening petition does not show any contract binding the trust estate to pay appellant anything. The former trustee could not recover against the estate if he paid the claims. Whether appellant has a valid claim against him personally is not before us. (Austin v. Parker, 317 Ill. 348, 355.) The fact that the intervening petition alleges that George is insolvent is of no assistance to appellant in this case.

The order of the circuit court was correct and is affirmed.

Order affirmed.


author: Justice Riess.

text:
    W. A. Doss, Appellant, v. N. E. Hutson et al., Appellees.
    Gen. No. 9,389.
    Heard in this court at the October term, 1943;
    opinion filed October 25, 1943;
    rehearing denied January 17, 1944.
    Dwight H. Doss, for appellant; N. E. Hutson, Carl I. Glasgow, E. J. Hawbaker, R. P. Shonkwiler, Burl A. Edie, C. E. Corbett and Oliver D. Mann, each pro se; Roy R. Cline, of counsel.
   Opinion by

Justice Riess.

Not to be published in full.


author: Presiding Justice Friend.

text:
    George Christian, Appellant, v. Peter Smirinotis, Appellee.
    Gen. No. 42,644.
    Heard in the second division, first district, this court at the April term, 1943;
    opinion filed December 14, 1943.
    Walter B. Prendergast and Charles P. R. Macaulay, for appellant; James F. Lyons and Elwyn E. Long, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Frank L. Nathanson (Impleaded), Plaintiff in Error.
    Gen. No. 42,679.
    Heard in the second division, first district, this court at the February term, 1943;
    opinion filed December 14, 1943;
    rehearing denied January 11, 1944.
    Wm. Scott Stewart, for plaintiff in error; George F. Barrett, Attorney General, and 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

Presiding Justice Friend.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. A. Fred Kabana, Plaintiff in Error.
    Gen. No. 42,727.
    Heard in the second division, first district, this court at the June term, 1943;
    opinion filed December 14, 1943;
    rehearing denied January 11, 1944.
    George G. Rinier and Ray E. Lane, 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

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Relaco Rosin Products Company, Inc., Appellant, v. National Casein Company and Louis T. Cook, Appellees.
    Gen. No. 42,133.
    Heard in the second division, first district, this court at the February term, 1942;
    opinion filed December 14, 1943.
    Herbert F. Geisler, for appellant; Thomas L. Owens, of counsel; Edward E. Contarsy and Harry G. Fins, for appellees.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Mrs. Marie Griffin, Plaintiff in Error.
    Gen. No. 42,740.

      Heard in the second division, first district, this court at the October term, 1943;
    opinion filed December 14, 1943.
    Max Rosenzweig and Joseph B. Gilbert, 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 Scanlan.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. A. Fred Kabana, Plaintiff in Error.
    Gen. No. 42,777.
    Heard in the second division, first district, this court at the June term, 1943;
    opinion filed December 14, 1943;
    rehearing denied December 29, 1943.
    George G. Rinier and Ray E. Lane, for plaintiff in error; George F. Barrett, Attorney General, and Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Scanlan.

Not to be published, in full.


author: Justice Dove.

text:
    Laverne Wall, Administrator of Estate of Donald L. Wall, Deceased, Appellant, v. Charles E. Greene and Jeanette Greene, Appellees.
    Gen. No. 9,891.
    Heard in this court at the October term, 1943;
    opinion filed December 28, 1943.
    W. S. Kay and Samuel Levin, for appellant; Gower, Gray & Gower and Wallace J. Bell, for appellees.
   Opinion by

Justice Dove.

Not to be published in full.


author: Justice Huffman.

text:
    Roy F. Ogilby, Administrator of Estate of Frederick Ogilby, Deceased, Appellee, v. George Schmauss, Jr., Appellant.
    Gen. No. 9,897.
    Dove, J., dissents.
    Heard in this court at the October term, 1943;
    opinion filed December 28, 1943.
    Burrell & Burrell and Frank P. North, for appellant; David M. Burrell, of counsel; Miller, Thomas & Hickey, for appellee; L. C. Miller and F. E. Hickey, of counsel.
   Opinion by

Justice Huffman.

Not to be published in full.


text:
    Clifton Fred Barnum, Administrator of Estate of Gloria Mae Barnum, Deceased, Appellee, v. George Schmauss, Jr., Appellant.
    Gen. No. 9,898.
    Heard in this court at the October term, 1943;
    opinion filed December 28, 1943.
    Burrell & Burrell and Frank P. North, for appellant; David M. Burrell, of counsel; James Berry and Thomas Simmons, for appellee.
   Opinion by

Justice Huffman.

Not to be published in full.


text:
    Beryl Jacobson, Administrator of Estate of John Martin Jacobson, Deceased, Respondent, v. Charles Umland and Racelle Flewellin, Petitioners.
    Gen. No. 9,907.
    Heard in this court at the October term, 1943;
    opinion filed December 28, 1943.
    Latham Castle and Edward M. Lawler, for petitioners; Myer H. Gladstone, Ward C. Swalwell and Gordon Moffett, for respondent.
   Opinion by

Justice Huffman.

Not to be published in full.


text:
    Julia O. Anderson, Appellant, v. Board of Education of School District No. 91, Warren County, Illinois, et al., Appellees.
    Gen. No. 9,934.
    Heard in this court at the October term, 1943;
    opinion filed December 28, 1943.
    Leonard W. Melburg and Edward B. Love, for appellant; Henry B. Safford, John J. Kritzer and William M. Fulton, for appellees.
   Opinion by

Justice Huffman.

Not to be published in fuU.


text:
    Dorothy Guentner, Formerly Dorothy Metz, Appellant, v. Hazel Stober, Appellee.
    Gen. No. 9,922.
    Heard in this court at the October term, 1943;
    opinion filed December 28, 1943.
    Lawrence A. Smith, for appellant; Ralph M. Eaton, for appellee.
   Opinion by

Justice Dove.

Not to be published in full.