author: Mr. Justice O’Connor

text:
    In re Estate of Fred Zverina, Deceased. John T. Dempsey, Administrator, Appellant, v. Alma Arado and Meta Holloway, Administrators, Appellees.
    Gen. No. 42,735.
    Opinion filed September 11, 1944.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellant; Don M. Peebles, of Chicago, of counsel.
    McInerney & Power, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

The question for decision in this case is the right of the administrators appointed by the court of Indiana, of the estate of Fred Zverina, deceased, to have the court revoke the letters of administration issued to the public administrator of Cook county in the same estate.

The record discloses that Zverina, a resident of Indiana, died intestate in Ft. Wayne December 26, 1940. At the time of his death he owned a parcel of improved real estate located in Chicago and on April 8, 1942, John T. Dempsey, as public administrator, filed his petition in the Probate court of Cook county, asking that he be appointed administrator of the estate. Letters of administration were issued to him and three claims aggregating approximately $1,000, were filed and allowed, one by the undertaker and the others by two creditors of the 7th class. More than 3 months thereafter, July 17, 1942, Alma Arado and Meta Holloway, as administrators of the estate of Zverina, deceased, filed their verified petition in the Probate court of Cook county praying that the order appointing Dempsey as public administrator be vacated and set aside and that he be removed as administrator.

They alleged that Zverina died intestate December 26, 1940, at Ft. Wayne, Indiana; that January 4, 1941, letters of administration were issued to them by the Superior court of Allen county, Indiana; that they qualified and entered upon the discharge of their duties; that the assets of the estate in Indiana were nominal — not sufficient to pay the costs of administration and that claims were allowed against the estate amounting to $2,520; that the deceased at the time of his death owned real estate in Chicago, improved by a two-story brick building worth approximately $2,700; that the deceased did not leave any personal property in Cook county; that it became necessary for them to institute proceedings either in the Circuit court or Probate court of Cook county to sell the real estate to pay the costs of administration and the taxes of the estate pursuant to § 271 of the Probate Act of Illinois, (Ill. Rev. Stat. 1943, ch. 3, par. 425 [Jones Ill. Stats. Ann. 110.522]); that while they were preparing to sell the Chicago real estate Dempsey filed his petition in which, among other things, he averred that Zverina, at the time of his death, was a resident of Chicago temporarily visiting in Ft. Wayne and that prior to his death he resided on the property in question.

The matter was heard in the Probate court, the prayer of the petition for the removal of Dempsey was denied and the administrators appealed to the Circuit court of Cook county.

In the Circuit court Dempsey filed his written motion to dismiss the petition, the administrators filed their answer and March 5, 1943, the order appealed from was entered. It recites that from stipulations entered by the parties, Zverina died intestate December 26,1940, at Ft. Wayne, Indiana, and was an actual resident of that state; that he died not owning any personal property located in Cook county at the time of his death, but owned the piece of real estate above mentioned. Other facts are recited in the order in reference to the appointment of the administrators by the Indiana court and of Mr. Dempsey by the Probate court of Cook county, and the allowance of the 3 claims by the Probate court of Cook county, and it was ordered and adjudged that the letters of administration issued to Dempsey, as public administrator of Cook county, be revoked. Dempsey appeals.

Counsel for the Indiana administrators contend that under the statute the public administrator of Cook county is not authorized to “act as administrator of estate of non-resident who dies without owning personal property in state, ’ ’ and § 166 of the Probate Act of Illinois [Ill. Rev. Stat. 1943, ch. 3, par. 318; Jones Ill. Stats. Ann. 110.415], is cited.

The material parts of that section are: “Sec. 166. Protection of Estates by Public Administrator.) When a decedent dies intestate owning any personal estate in this State and there is no person in this State having a prior right to administer his estate, the public administrator of the county . . . where the personal estate is situated if the decedent was a nonresident . . . may take such measures as he deems proper to protect and secure the personal estate from waste . . . until letters of administration of the estate are issued to the person entitled thereto or until demand for the removal of the personal estate from this State is made by a non-resident administrator . .- . pursuant to the authority granted by this Act.” (Session Laws 1939, p. 44.) And the argument of counsel is that this section only refers to personal property; that no mention is made “of a non-resident of this State who dies owning real estate in Illinois and no authority is given to the public administrator to act in such a case. ’ ’ That prior to the effective date of the present Probate Act, January 1, 1940, section 47 of chapter 3, 111. Rev. Stat. 1937 expressly authorized the public administrator to act when a non-resident died seized of real estate in this state who had no relative or creditor within this state who would administer the estate and that this section was repealed by the present act. Obviously § 166 does not apply to real estate but only to personal property.

Counsel for the public administrator contend that the appointment of Dempsey by the Probate court of Cook county is authorized by §§ 54, 94, 95, 96, 262, 271 and other sections of the present Probate Act [Ill. Rev. Stat. 1943, ch. 3, pars, 206, 246-248, 416, 425; Jones Ill. Stats. Ann. 110.303, 110.343-110.345, 110.513, 110.522].

Section 54 specifies the place of the administration of an estate to be in the Probate court in the county where the deceased’s “mansion house” is, or if there is no mansion house, in the county in the last known place of residence and “(c) If he has neither a mansion house nor a known place of residence in this state, in the county wherein the greater portion of his real estate is located.”

By section 94 it is provided that a person is not qualified to act as administrator of the estate of any decedent if he “is a non-resident of this state.” Section 95 provides, among other things, where an estate may be settled without administration, and section 96 specifies the persons who are entitled to preference in obtaining letters of administration. In the 7th class the public administrator is designated and in the 8th, creditors of the estate.

Section 262 provides under what conditions a nonresident administrator of a non-resident decedent may come into Illinois and collect and receive the personal estate belonging to the non-resident decedent, one of which is that he must make an affidavit that there are no creditors of the estate in Illinois. This section is limited to the personal estate of a non-resident decedent. By §271 it is provided: “When any person residing outside of this state is appointed . . . administrator of the estate of any decedent who at the time of his death owned real estate . . . within this state and letters ... of administration have not been granted on the estate of the decedent in this state, the person so appointed may file his petition in the . . . probate court of the county in which the real estate or the greater part thereof may lie.” It will be noted that by this section a non-resident administrator of a non-resident decedent is not authorized to take any action with reference to real estate owned by the decedent in Illinois, except where letters of administration have not been granted of the estate in this state. By § 274 of the Probate Act [Ill. Rev. Stat. 1943, ch. 3, par. 428; Jones Ill. Stats. Ann. 110.525] it is provided that if a non-resident administrator comes into Illinois before the appointment of an Illinois administrator, and petitions for leave to sell real estate of the non-resident decedent, his authority to act is limited and shall continue only until such time as a resident administrator is appointed. And upon motion the resident administrator shall be substituted as petitioner.

Upon a consideration of the applicable provisions of the Probate Act of this state we are of opinion that the appointment by the Probate court of Cook county of the public administrator of Cook county was authorized and that the court erred in holding his appointment void.

The order of the Circuit court of Cook county appealed from is reversed and the matter remanded with directions for further proceedings in accordance with the views herein expressed.

Reversed and remanded with directions.

Niemeyeb, P. J., and Hatchett, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Montgomery Ward and Company, Inc., Appellant, v. Franklin Union, Local No. 4 et al., Appellees.
    Gen. No. 43,039.
    Matchett, J., concurring in result.

      Opinion filed September 11, 1944.
    Stuart S. Ball and John A. Barr, both of Chicago, for appellant.
    Poppenhusen, Johnston, Thompson & Raymond and Frank E. McAllister, both of Chicago, for appellees; Floyd E. Thompson, Albert E. Jenner, Jr., Francis D. O’Mara and Adolf Loeb, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff filed its complaint at law against a number of unincorporated labor union associations and certain officers and agents of the unions to recover damages claimed to have been sustained by it on account of the action of defendants in causing delay in the printing of plaintiff’s catalogue. Defendants’ motions to strike the complaint were sustained, plaintiff elected to stand upon its complaint, the suit was dismissed at plaintiff’s costs and it appeals.

The allegations of the complaint in short compass are that plaintiff soficits mail orders at retail from its several millions of customers throughout the country by means of catalogues in which its merchandise is described ; that during November and December of 1942, its “Mid-Winter Sales Book” was being produced under a contract it had with the Cuneo Press, a corporation, the Noe Gravure Company, a subsidiary of Cuneo, R. R. Donnelley & Sons, incorporated and the Chicago Rotoprint Company which had performed similar services for a number of years for plaintiff. These four companies either produced materials for plaintiff or worked on materials belonging to plaintiff. Some of the materials produced or worked on by Donnelley & Sons were, while owned by plaintiff, worked on by employees of the Cuneo and Rotoprint Company and some of the materials worked on or produced by Cuneo, while owned by Ward, were worked on by Donnelley & Sons. Donnelley & Sons operated what is known as an open shop while the other companies were unionized. The union employees of Cuneo and others refused to work on material in the preparation of plaintiff’s catalogues which had been worked on by the employees of Donnelley and plaintiff claims that this conduct on the part of the employees of Cuneo and others caused delay in the preparation of its catalogue which resulted in the damages complained of.

Attached to and made a, part of the complaint as exhibits were a number of agreements entered into between the labor unions and their respective employers specifying the duties of each, which contained a provision whereby the union reserved to its members “the right to refuse to execute all work received from or destined for struck offices, unfair employers or publications. ’ ’

One of the grounds specified by defendants in the motions to strike the complaint was that the defendant unions being voluntary and unincorporated associations could not be sued in the association names in the absence of an enabling or permissive statute; that this was the rule at common law which had not been changed by statute and therefore the motion to dismiss was properly sustained.

On the other side counsel for plaintiff contend that the unions “are such legal entities as may be sued at law in the courts of Illinois, ’ ’ and a number of authorities are cited, discusséd and applied.

Upon a consideration of the briefs and authorities cited by able counsel, we think it would serve no useful purpose to discuss in detail authorities cited for we have reached the conclusion that in the absence of a statute, the unions are not suable in their association names. Cahill v. Plumbers, etc., Local, 238 Ill. App. 123; Kingsley v. Amal. Meat Cutters, etc., 323 Ill. App. 353; Moffat Tunnel v. United States, 289 U. S. 113; 4 Am. Jur. § 46, p. 485. Nor are we able to agree with the contention of counsel for plaintiff that the labor unions may be parties defendant by virtue of § 24 of the Illinois Civil Practice Act, 1943, ch. 110, par. 148, § 24 [Jones Ill. Stats. Ann. 104.024], for the reason, as counsel contends, that the question is one of procedure rather than one of substance. We are of opinion that the question involved is one of substance going to the jurisdiction of the court and not of procedure, 39 Am. Juris, p. 881; Cahill v. Plumbers, etc., Local, 238 Ill. App. 123.

There was no act of violence or threats by defendants. The employees of Cuneo and others had a right under the terms of the contracts entered into which were attached as exhibits, to refuse to work on jobs which were done in part by non-union craftsmen. If such employees had no right to refuse to work in such circumstances they have little or no rights at all which are of any value to union members. We agree with the statement of counsel for defendants when they say “that the primary object of the defendants in refusing to work upon or with products that have been worked upon or with by non-union craftsmen was to further their own interests and to secure to themselves whatever improvement in their working conditions had been brought about by their membership in their respective unions. Whatever injury was suffered by plaintiff, if any, by reason of any act of these defendants is merely incidental and not actionable. Fenske Bros. v. Upholsterers Union, 358 Ill. 239.”

Counsel for plaintiff further contend that “Count One of the complaint states a good cause of action for damages resulting from a secondary boycott.” We think this contention cannot be sustained. This court has recently held that a secondary boycott is legal in this state. Maywood Farms Co. v. Milk Wagon Drivers’ Union, 313 Ill. App. 24.

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

Judgment affirmed.

Niemeyer, P. J., concurs.

Mr. Justice Matchett specially concurring: I concur in the result, for the reason that the complaint in my opinion does not state a cause of action.


author: Mr. Presiding Justice Dove

text:
    In re Matter of William Creager, Also Known as Wilbur Creger, and Pete Smith, etc., et al., Appellees. Frank Foundries Corporation, Appellant.
    Gen. No. 9,958.

      Opinion filed September 19, 1944.
    Oakleaf & Churchill, of Moline, for appellant; Cyrus Churchill, of Moline, of counsel.
    Meyers & Meyers, Ben Meyers and Hart E. Baker, all of Chicago, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Bock Island county dismissing for want of jurisdiction, an arbitration proceeding instituted by appellant against appellees, involving a labor dispute.

Appellant operates a gray iron foundry in the City of Moline, and the employees are represented by Local No. 909' of the International Union of United Automobile, Aircraft & Agricultural Implement Workers of America, for the purpose of collective bargaining. On May 15, 1942, appellant and the union entered into a labor relations contract for the period of one year, containing provisions for the adjustment of grievances by arbitration, if not settled on presentation thereof, or by a hearing by a designated representative. ' The agreement provided for the settlement of all disputes, grievances, or differences between the parties by grievance procedure and arbitration as set forth therein, provided, that proposals to alter or amend any provision of the agreement, or disputes or grievances affecting hours of labor or wage rates shall not be subject to arbitration, although they shall be subject to grievance procedure. That part of the agreement relating to arbitration provides that the decision of the arbitrator, whether he be chosen by the parties or by the National War Labor Board, shall be final and binding upon both parties.

The various steps and proceedings in the case, in chronological order, are as follows:

On July 3, 1942, two employees, William Oreager and Pete Smith, classed by appellant as laborers, each filed with appellant a grievance, asking to be rerated as grinders. The latter occupation paid a higher wage than that of laborer. On October 22, 1942, an agreement was entered into between appellant and the union, submitting the grievances to arbitration under the rules of the American Arbitration Association and “the Arbitration Law of the State of Illinois,” and naming as arbitrator, Dr. Willett Henshaw, from the panels of the American Arbitration Association. The submission agreement concludes with a provision that the parties will faithfully observe the same and the rules above mentioned, and will abide by and perform any award rendered pursuant thereto, and that a judgment of the court, State or Federal, having jurisdiction, may be entered upon the award.

The arbitrator held a hearing on October 22, 1942, and under date of December 18, 1942, made his award that William Creager be classified as “inspector,” and was entitled to pay as such, and that Pete Smith be classified as a “grinder” and was entitled to pay as such. A controversy arose between the parties as to the interpretation of the meaning of the award, and on July 22, 1943, they appeared before the Regional War Labor Board, which, on the same day, entered an order directing the arbitrator to clarify his award, and that his interpretation and clarification shall be final and binding upon both parties. On September 10, 1943, the arbitrator supplemented the award with a statement that William Creager, classed as a laborer by appellant, was classed, by the arbitrator as an inspector, and was ordered to be paid accordingly at 70$ per hour, retroactive to May 15, 1942; with a similar order as to Pete Smith as a grinder.

The proceedings in the instant case were filed by appellant in the circuit court on September 13, 1943. On October 13, 1943, the Regional War Labor Board entered an order directing appellant to forthwith comply with the terms of the arbitration award as interpreted and classified under date of September 10, 1943, until such time as a court of competent jurisdiction issues a ruling contrary to such award, and that such directive order is subject to discontinuance should a court of competent jurisdiction render a decision contrary to the terms of the award. “On October 20, 1943, appellant forwarded its petition to the National War Labor Board at Washington, D. C., to review the order of October 13,1943, and asking that the order be modified by allowing appellant to deposit the sums of money awarded to the parties with some suitable agency or person to be held until a decision could be obtained in the instant pending proceeding. On October 24, 1943, the union notified appellant that since appellant had postponed court hearing on Monday (October 25) and was meeting with the War Labor Board and union representatives in Chicago on Monday, the union officers would be unable to delay strike action beyond Monday unless assured by Monday night that appellant had complied with the arbitration awards and directive orders, and had withdrawn from all court actions to avoid compliance, and had withdrawn the petition for review of the directive order of October 22,1943. The director of disputes of the Regional War Labor Board also notified appellant that in case of a strike the government would probably take over the plant. The report of proceedings recites that yielding to the threat of the Regional War Labor Board'to seize the plant, and under protest, appellant made payment to William Creager and Pete Smith of the amounts awarded them .by the arbitrator. It appears that the payment was made on October 26,1943, but appellant refused to dismiss the proceeding. Thereafter, on October 28, 1943, without notice to either party, the Regional War Labor Board entered an order setting aside its order of October 13,1943, and providing that unless there was compliance with the order of July 22, 1943, prior to November 2, 1943, the case would be forwarded to the National War Labor Board in Washington, D. C., for compliance and enforcement.

The instant proceeding was begun in the circuit court by the filing of the original agreement, the submission agreement, and a motion asking the court to take jurisdiction of the parties and the subject matter of such submission, to the end that the arbitrator state his final award in the form of a conclusion of fact for the opinion of the court on the questions of law arising. Appellees orally objected to the jurisdiction of the court.

Appellant claims that section 6 of the Illinois Arbitration and Awards Act of 1917 (Ill. Rev. Stat. 1943, ch. 10, pars. 1-18 [Jones Ill. Stats. Ann. 109.001-109.018]), requires the courts to take jurisdiction of the parties and the subject matter and to pass upon questions of law arising from any award in a proceeding under the act, upon the filing in court of the arbitration submission, and the giving of notice; and that the National War Labor Board is concerned only with compliance with arbitration awards, and by rule expressly reserves and sanctions the rights of the parties to obtain a judicial declaration of the rights and obligations flowing from the award in a court of competent jurisdiction, citing section III of the rules of the Board adopted on January 22,1942, known as Administrative Regulation No. a (7 F. R. 600).

Appellees contend that the National War Labor Board had exclusive jurisdiction of the controversy, by virtue of sec. 7, sub-par. 2, of the War Labor Disputes Act of June 25, 1943 (Public Laws 89, 78th Congress, 1st Session), delegating the power and duty to the National War Labor Board to decide disputes, and to provide by order the wages and hours and all other terms and conditions customarily included in collective bargaining agreements, such orders to be in effect until the further order of the Board; and by the executive order of the President on January 12, 1942, establishing the National War Labor Board, and providing that after taking jurisdiction, the Board shall finally determine the dispute. Appellees also contend that because of the payment made by appellant in compliance with the award, the case became moot before the judgment of the trial court was entered.

The claim that the cause is moot requires first consideration. The law is well settled that the duty of a judicial tribunal is limited to determining rights of persons or of property actually controverted in the particular case before it, and the existence of such an actual controversy is an essential to appellate jurisdiction. (National Jockey Club v. Illinois Racing Commission, 364 Ill. 630, 631; Chaitlen v. Kaspar American State Bank, 372 Ill. 83, 87.) Where the substantial questions or the issues involved in the trial court no longer exist, an appellate court will not review the cause merely to decide moot questions to make a precedent, or to determine the liability for costs.- (Tuttle v. Gunderson, 341 Ill. 36, 45; Jones v. Clark, 355 Ill. 527, 530.) A moot case is one which seeks to determine an abstract question, which does not rest upon existing facts or rights, or which seeks a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any cause, cannot have any practical legal effect upon a then existing controversy. (Adams v. Union R. Co., 21 R. I. 134, 42 Atl. 515, 44 L.R.A. 273; Ex parte Steele, 162 Fed. 694, 702.) The obvious corollary to these principles is that if a substantial issue or question remains in the case, the cause is not moot.

This is not exclusively a wage dispute. Ever since the initial step of the filing of the grievances by the two employees mentioned, the cause has embraced, not only their wages up to the time the payment was made, but also their status as laborers, or an inspector and grinder, respectively, and their right to receive pay incidental thereto for the entire period from May 12, 1942, throughout their future employment with appellant in those capacities.

The War Labor Disputes Act of June 25, 1943 was passed after the expiration of the one-year period mentioned in the contract of May 15, 1942 between the parties as the period of its duration. The basic principle of the theory that a cause becomes moot by a payment of the demand is the presumption that the party making such payment thereby impliedly abandons his defense. We do not know of any hard and fast rule that such presumption cannot be overcome by circumstances showing that a payment was made only to preserve the status quo, or to avoid disastrous results of a failure to make it, with no intention to abandon the proceeding or any rights thereunder, and we think that such a showing is sufficient to overcome such presumption, and it is not necessary that such circumstances amount to duress. Thus in Meinel v. Randolph, 181 Ill. App. 400, it was held that where the grantee of the plaintiff in error redeemed property involved in a mortgage foreclosure to avoid the result of the expiration of the period for redemption, such payment was not a release of errors by the plaintiff in error so as to require a dismissal of the writ. In this case, the payment of the amount fixed by the award, up to the time of such payment, was made under protest, in order to avoid a strike and the probable taking over of the plant by the government, and manifestly cannot be considered as an acquiescence by appellant in the award, nor as final or binding upon it as to the status or wage of the employees, either before or after such payment. How appellant could otherwise have preserved the status quo is not suggested or apparent. The fact that appellant intended to preserve its rights under the issues, is demonstrated by the payment under protest, and the refusal to dismiss the proceeding pending in the circuit court. Thus, the issues are the same as when the instant proceeding was filed in the circuit court, and all the substantial questions still remain unsettled. The statement in appellant’s brief that as a practical matter it may be difficult to obtain a refund of the money paid if the award is set aside by the court is beside the point and does not change the legal status of the cause, or of the issues. In our opinion the cause is not moot.

This leaves for consideration the question of the circuit court’s jurisdiction. The 1917 Arbitration and Awards Act of this State, as amended in 1919 (Ill. Rev. Stat. 1943, ch. 10, pars. 1-18 [Jones Ill. Stats. Ann.. 109.001-109.018]), relied upon by appellant, does not purport to embrace labor relations. Provisions for such proceedings are embraced in the peacetime act of August 2, 1895, as amended by the act of June 7, 1943, concerning controversies between employer and employees (Ill. Rev. Stat. 1943, ch. 10, pars. 20-30 [Jones Ill. Stats. Ann. 109.020-109.031]), which provides for settlement of any controversy or difference between employer and employee not involving questions which may be the subject of an action at law or bill in equity, through the mediation and decision of the Department of Labor, and the only court proceedings provided for therein are for the attachment of a witness refusing to obey a subpoena or other process of the Department of Labor, and contempt proceedings for a refusal to obey the process and order of the court thereunder; and contempt proceedings in case of a failure to abide by the decisions of the Department of Labor in cases where both the employer and employee shall have joined in the application to the department.

Section 1 of the Act of 1917, as amended, provides: ‘ ‘ That all persons having requisite legal capacity may, by an instrument in writing to be signed by them, submit to one or more arbitrators to be named in the manner indicated by such writing, any controversy existing between them, and may, in such submission, agree that any court of competent jurisdiction, or any court therein named (provided it is of competent jurisdiction) may pass upon any questions of law arising in such arbitration proceedings, and that a judgment, or successive judgments, of such court shall be rendered upon the award made pursuant to such submission, and for the payment of fees and costs of the arbitrator or arbitrators. ’ ’ Thus, the statute does not purport to invest any court with jurisdiction of such proceedings, but expressly limits them to courts of competent jurisdiction. Section 6 of the same act, invoked by appellant, provides for the taking of jurisdiction by the court upon the filing of the submission and the giving of notice, without the filing of any pleadings whatsoever.

That part of the rules of the National War Labor Board relied upon by appellant, provides: “The Board’s determination of the matter will constitute a final adjudication unless and until a tribunal of competent jurisdiction issues rulings contrary to those of the Board. The action of the Board in no way prejudices the right of a party to appeal to a court of competent jurisdiction for a judicial declaration of the rights and obligations flowing from the award. The Board’s order will be made expressly subject to discontinuance should a court render a decision contrary to the conclusions of the Board.” Manifestly, the rule could not invest any court with jurisdiction, nor does it purport to do so. It is also to be noticed that the submission agreement provides for judgment on the award only by a court having jurisdiction. Jurisdiction can be conferred only from an authoritative source, such as the organic law or a legislative act.

The Arbitration and Awards Act of 1917, as amended, is a general statute relating to arbitration and awards, without any mention of labor disputes. The Act of 1895, as amended in 1943, pertains particularly and exclusively to labor disputes. The well-settled rule of statutory construction is that where there is found in a statute a particular enactment, it is held to be operative as against the general provisions on the subject either in the same act or in the general laws relating thereto. (Frank v. Salomon, 376 Ill. 439, 446; Robbins v. Lincoln Park Com’rs, 332 Ill. 571; Handtoffski v. Chicago Consol. Traction Co., 274 Ill. 282.) Under this principle, we do not think that the instant controversy would be cognizable by the circuit court. By this we are not to be understood as holding that the Act of 1895, as amended in 1943, governs war labor disputes embraced within the Federal War Labor Disputes Act.

Section 7 (a) of the War Labor Disputes Act of June 25, 1943, supra, invests the National War Labor Board with jurisdiction of labor disputes which may lead to substantial interference with the war effort. The National War Labor Board was established by Executive Order of the President, No. 9017, on January 12, 1942, which provides, in part: “After taking jurisdiction, the Board shall finally determine the dispute. ’ ’

By vesting the Board with jurisdiction of labor disputes which may lead to substantial interference with the war effort, the War Labor Disputes Act is analogous to the peacetime Federal Employers’ Liability Act, which, it is held, exclusively occupies the field in cases involving injuries to employees engaged in interstate commerce, or in duties connected with or in furtherance thereof, and supersedes the Workmen’s Compensation Act of this State. (Brink v. Industrial Commission, 368 Ill. 607.) Other peacetime holdings that a State court has no jurisdiction to review an order of an agency of the United States are found in (Keller v. American Cyanamid Co., 132 N. J. Eq. 210, citing Manning v. Feidelson, 175 Tenn. 576, 136 S. W. (2d) 510; Venner v. Michigan Cent. R. Co., 271 U. S. 127, 70 L. Ed. 868, 46 Sup. Ct. 444.)

In International Association of Machinists v. State ex rel. Watson (Fla.), 15 So. (2d) 485, the court said in the opinion:

“The constitution of the United States vests in the President and in the Congress full power to declare and wage war. This vestiture of power carries with it all those implied powers necessary to fully effectuate this express enumerated power. McCulloch v. Maryland, 4 Wheat, 316, 4 L. Ed. 579. The Federal power to wage war being absolute, it must necessarily be exclusive. Ex Parte Milligan, 4 Well 2, 18 L. Ed. 281. This express grant of power, says the Supreme Court of the United States in Kiyoshi Hirabayshi v. United States of America, 320 U. S. 81, 63 S. Ct. 1375, 1382, 87 L. Ed. 1774, dated June 21, 1943; ‘extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from dangers which attend the rise, prosecution and progress of war.’ (Citing cases.)
“The National War Labor Board was created by Executive Order January 12, 1942, for the purpose of procuring an uninterrupted prosecution of the war on the part of labor and industry. This Board was given the duty of disposing of all labor disputes which might affect the war effort. In consideration of labor agreeing to a policy of no strikes for the duration of the war, labor was given the right of collective bargaining, and the National War Labor Board was set up to settle all disputes peacefully. If the Executive Department of each of the several States, through its Attorney General, is allowed to question in the courts of the several states whether as a matter of public policy the war effort is being properly prosecuted, then a clash is inevitable among state tribunals and between them and Federal agencies expressly created for that purpose.”

In Pearson Candy Co., Ltd. v. Waits, individually and as representative of Bakery and Confectionery Workers International Union of America, Local No. 417, etc., California superior court, county of Los Angeles, 13 Labor Relations Reporter 558, January 3, 1944, the Regional War Labor Board issued a directive order requiring the employer to comply with its contract with the union ‘ until the contract shall have been held invalid by the final decision of a competent tribunal. ’ ’ The employer filed a petition for review of this order which was denied, and the Board took steps to require the employer to show cause why it should not comply with the order. After the petition for review was filed, the employer brought an action in the superior court seeking an adjudication that the contract was void. The union filed a cross complaint, and pleaded the pendency of another action for the same cause between the same parties before the National War Labor Board. The court in that case dismissed both the complaint and the cross complaint, on the ground that the court did not have jurisdiction. In the course of the memorandum opinion the court said:

“There can be no doubt that in passing the War Labor Disputes Act Congress intended to give to the War Labor Board full power to decide any dispute between employer and employee in any labor dispute which in the opinion of the Board has become so serious that it may lead to substantial interference with the war effort. And furthermore this power stems directly from the War powers of the United States Grovernment as exercised by the President. The Board functions as a war agency; . . .. From the foregoing it must necessarily be concluded that the National War Labor Board, having assumed jurisdiction and made its directive order in respect to the contract herein in question, has exclusive jurisdiction to pursue and prosecute such matter to a final termination, subject to federal laws and the orders of the President and without interference by any state tribunal, . . . From all of which it appears that, for the duration at least, state courts are deprived of power to adjudicate the validity of labor contracts affecting interstate commerce, and giving rise to a labor dispute which the War Labor Board deems so serious as to lead to substantial interference with the war effort, and over which it assumes jurisdiction. ’ ’

These two holdings last mentioned are based on possible interference with the war effort. Considering appellant’s statement that it employs, under average conditions, about 200 men, subject to collective bargaining, and the well known necessary requirement for and the practically universal employment of all iron and steel industries in the war effort, the fact that a labor dispute and a strike in appellant’s plant would substantially interfere with the war effort, needs no further exposition. We think there can be no doubt that as to such disputes the Federal War Labor Disputes Act supersedes all statutory enactments of this State on the subject, general and special. The peacetime question of whether interstate commerce is involved is not in the picture.

Furthermore, it is to be noticed that the petition for review filed with the National War Labor Board is directed at only the order of October 13,1943, and no petition was filed for review of the basic order of July 22, 1943, which provides that the arbitrator’s “Interpretation and clarification shall be final and binding upon both parties.” By filing a petition for review under the rules of the Board, appellant acknowledged the Board’s rule-making power. It is a familiar principle that orderly procedure authoritatively prescribed must be exhausted before any court will take jurisdiction to entertain proceedings to question the action of such agency.

Our conclusion is that the circuit court correctly held that it had no jurisdiction of the cause. Whether any' court other than the courts of this State, and what court, if any, has jurisdiction of such controversies, is not before us, and we refrain from any discussion of or holding on that question. The order dismissing the cause for want of jurisdiction is affirmed.

Order affirmed.


text:
    Chicago Title and Trust Company, Trustee, Appellant, v. Arthur W. Guild et al., Appellees.
    Gen. No. 9,976.

      Opinion filed September 19, 1944.
    John W. Leedle, of Wheaton, for appellant.
    Hadley & Leren, of Wheaton, for certain appellee; Charles W. Hadley and Palmer Leren, of Wheaton, of counsel.

      Rathje & Woodward, of Wheaton, for certain other appellees; John S. Woodward, of Wheaton, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

Appellant, Chicago Title and Trust Company, as trustee of a trust estate, filed its verified amended complaint for interpleader, and for aid and direction in chancery, in the circuit court of DePage county, asking the court to determine, as between Arthur W. Guild, on the one part, and Thomas C. Hull and George L. Allmart, on the other, which of them is entitled, as real estate brokers, to a commission on certain real estate sold by appellant, as such trustee, to John M. Davis for the purchase price of $26,325. Arthur W. Guild had instituted suit against appellant for commission on the sale, and a temporary injunction was issued in the instant proceeding restraining the prosecution of that suit. The defendants separately answered the amended complaint, replies to the answers were filed, and upon a hearing on the pleadings, without any testimony, the court entered an order finding that an interpleader does not lie, dissolving the temporary injunction, and dismissing the amended complaint, from which order this appeal is prosecuted.

The amended complaint alleges an offer of John M. Davis to purchase the property, on or about March 29, 1943, the acceptance thereof by the plaintiff, and the consummation of the sale; that Thomas C. Hull and George L. Allmart made a claim upon the plaintiff for a broker’s commission of 5 per cent of the purchase price, amounting to $1,316.25, on the alleged ground that they were the procuring cause of the sale; that Arthur W. Guild made a like claim on the plaintiff, on the same ground, and later instituted the suit above mentioned; that Thomas 0. Hull and George L. All-mart have threatened to bring a separate suit at law for such commission on the ground that they were the procuring cause of such sale, whereby the trustee is threatened with a multiplicity of suits for one and the same commission, and to the possibility of divers judgments which might require duplicate payments of such commission to different brokers; that the defendants, Arthur W. Guild, Thomas 0. Hull and George L. All-mart, did not have and do not claim to have an exclusive contract with the plaintiff to procure a purchaser for the premises, and that the plaintiff has not entered into any agreement with either of them, or with any other broker, for the payment of a broker’s commission to any broker other than to the broker who was the procuring cause of such sale. It is further alleged that the plaintiff is willing and ready to pay the broker’s commission to the person or persons lawfully entitled thereto; that only one commission is due or payable, and that the plaintiff trustee cannot pay it to either of the claimant brokers, without grave risk of being subsequently adjudged to have paid the same in error, and of being compelled to pay said commission to another and different broker; that the plaintiff has no interest in or claim upon the money; and is ready and willing to pay it to the clerk of the court or to such other person as the court shall direct upon being discharged from liability to both claimants. The complaint disavows any collusion with any of the defendants, or the asking of any relief upon the request of any of them; alleges that each of the defendants claims to be the procuring cause of such sale, and that the plaintiff is in doubt as to which defendant is entitled to such commission; recit.es that the danger of the trust being subjected to the payment of two commissions, as aforesaid, raises a doubt as to the amount available for investment, and concludes with a prayer requiring the defendants to interplead, with the usual prayer of relief.

Each of the separate answers of the defendants admits that such particular defendant or defendants had no exclusive contract with the plaintiff to procure a purchaser for the premises, and each claims that such particular defendant or defendants was or were the procuring cause of the sale, and entitled to the commission therefor. Each answer alleges that if the plaintiff is liable for a commission to the other defendant or defendants it is the resiilt of the acts of the plaintiff upon a separate contract of which the answering defendants have no knowledge, and that such contract, if any, is not the result of any act of such answering defendant or defendants; denies that the plaintiff is ready and willing to pay such commission to the person or persons lawfully entitled thereto; denies the plaintiff’s impartiality; and denies or asks for strict proof of no collusion or the asking of relief at the request of the other defendant or defendants.

The answer of Arthur W. Guild is predicated upon an alleged oral agreement with the plaintiff, on or about April 10,1942, for the payment of the usual and customary broker’s fee for the procuring of such sale. The answer of the other defendants admits demanding the commission from the plaintiff, but denies having threatened suit. It alleges liability of the plaintiff to them by reason of the acceptance of a written offer of purchase by John M. Davis, dated March 29, 1943, in which is a statement: ‘ The only broker in any way involved in this offer is T. 0. Hull and G-. L. Allmart.” After the signature of John M. Davis, appears a statement signed by T. C. Hull and G-eorge Allmart, by T. C. Hull, reading as follows: “The broker shall be entitled to a commission, to be paid by seller, at the Chicago Eeal Estate Board rate, only in ease the above offer is accepted by the seller and the same is completed. . . . The undersigned, a licensed real estate broker, represents that he is the only broker interested' in the foregoing offer and agrees to indemnify and save the seller harmless from claims of any other broker in connection with said offer.”

The separate replies of the plaintiff to the answers of the defendants join issue on the allegations thereof, particularly denying that it made separate contracts with the respective defendants to pay them separate commissions; denying the alleged oral agreement with Arthur W. Guild; denying knowledge of whether he was the procuring cause of the sale and praying strict proof thereof; and denying that the offer of John M. Davis and the acceptance thereof constituted a contract between the plaintiff and Thomas C. Hull and George L. Allmart to pay them a commission in the event that they were not the procuring cause of the sale.

Summarizing the pleadings, it is admitted that neither of the defendants had an exclusive contract for the sale of the premises. The defendants each claim a separate contract for the payment of a commission, not connected with any contract of the plaintiff and any other broker. The plaintiff denies any separate contracts with the defendants to pay them separate commissions, and alleges that it agreed to pay only the broker who should be the procuring cause of the sale, which allegation is denied by each of the defendants, each of whom also claims to have been such procuring cause, and the plaintiff denies knowledge as to which of them was such procuring cause. Manifestly, the pleadings present issues of fact and cases cited by appellee wherein the record showed, either on the face of the pleadings, or by the testimony, an admission of indebtedness or a contractual liability to one of the parties, are not in point. The statement of John M. Davis, in his offer of purchase, that the only broker in any way involved in the offer was T. C. Hull and G. L. Allmart, and the statement signed by such brokers, attached to the offer and herein above quoted, is not conclusive or binding upon the seller by reason of its acceptance of the purchaser’s offer, and does not estop the seller from questioning its liability to pay such broker’s commission. Otherwise, a broker, who in fact was not the procuring cause of the sale, by collusion with, or misleading the purchaser, could conclusively impose a liability upon the seller who accepted the purchaser’s offer, to pay the wrong broker, and put the seller .in the position where he would be obliged to pay another commission when only one was due. The offer and acceptance were between the purchaser and the seller, in no way conditioned upon the payment of a commission to Hull and Allmart, and the statement that they are the only brokers involved is no part of the offer, and could be eliminated therefrom without changing its effect as between the purchaser and the seller. As claimed by appellant, not only is there no language in the statement signed by Hull and Allmart which indicates an understanding on their part that they were to receive a commission even if the seller must pay a commission to another broker, but the language negatives such an idea on their part. Clearly, the seller was not bound to accept their offer of indemnity in case he was obliged to pay another broker, nor the representations that they were the only broker involved. Being already sued by another broker, and confronted with a claim for the commission by Hull and Allmart, the plaintiff had the right, and it was its duty as such trustee, to have the question of who was entitled to a commission legally determined, without being subjected to a multiplicity of suits, and possible protracted expensive litigation, to the detriment of the trust estate.

Unless he specially agrees not to do so, an owner of property may employ two or more brokers; in such case it is the broker who is the efficient cause of the sale who is entitled to commissions; and this right is not affected by the fact that" such broker sells to one whose attention to the property had before been called by another broker. It is not the broker who first speaks of the property but he who is the procuring cause of the sale, be he the first or second who engaged the attention of the purchaser. (McGuire v. Carlson, 61 Ill. App. 295, 299.) A broker, unless wrongfully prevented by his principal, must bring about an agreement in order to be entitled to his commission, and the principal may employ several brokers to sell the same property, and may sell to the buyer who is first procured by any of them, without being called upon to decide which of the brokers was the primary cause of the sale, provided he remains neutral between them and is not guilty of any wrong. (Day v. Porter, 161 Ill. 235, 237; Drobnick v. Old Line Life Ins. Co. of America, 320 Ill. App. 232, 236.) Submitting* an offer of a purchaser, which is accepted by the seller does not necessarily mean that the party submitting such offer was the procuring cause of the sale.

In Noble v. Carruthers, 235 Ill. App. 1, 8, the court said: “In the ease at bar, under the allegations of the bill, the complainants have entered into no independent express agreement with either broker and they cannot be liable to both. If it should be determined that they are liable to one, their liability to the other would necessarily be precluded. Obviously there cannot be two sole and procuring causes of the successful negotiation of the same lease. But if the complainants are put to their defense of two, separate suits at law, each with its own separate record and evidence, it is not difficult to conceive a situation in which the complainants might have to answer to two judgments. That is a situation which equity should and will prevent under such facts as are alleged in the bill of complaint involved here.” A bill of interpleader has always been treated as a suit in equity, and the facts in the Noble case are analogous to the facts in this case.

The four essentials of an interpleader as enumerated by the authorities are: First, the same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; second, all the adverse titles, or claims must be dependent on or be derived from a common source; third, the person asking the relief — the plaintiff — must not have nor claim any interest in the subject matter; fourth, he must have incurred no independent liability to either of the claimants, — that is, he must stand perfectly indifferent between them, in the position, merely, of stakeholder. (Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, 267; Snow v. Ulrich, 126 Ill. App. 493, 495.) These elements are present in the amended complaint in this cause. There was but one sale, and according to the allegations of the complaint, there was but one commission to be paid, which, obviously is the same fund.

The rule and the ground of jurisdiction in an inter-pleader proceeding is stated in Newhall v. Kastens, 70 Ill. 156, 159, as follows: “Where two or more persons claimed the same fund or property, by different or separate interests, and another person does not know to whom it of right belongs, and as to which he is wholly indifferent as between them, he may exhibit a bill of interpleader as against them. The ground of jurisdiction is the apprehension of danger to himself from the doubtful and conflicting claims of the several parties, as between themselves; and the only decree he is entitled to, is, that his bill is properly filed, that he have liberty to pay the money or deliver the property to the party entitled thereto and be thereafter protected from the several claimants.” (Citing authorities.)

In our opinion appellant’s pleadings sufficiently set up a cause for interpleader. The order of the trial court dissolving the temporary injunction and dismissing the amended complaint is therefore reversed and the cause is remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    Ella Wesemann, Appellant, v. Alonzo Fischer et al., Appellees.
    Gen. No. 9,956.
    Opinion filed September 19, 1944.
    John A. Bussian, of Chicago, for appellant.
    Campbell, Clithero & Fischer, of Chicago, for certain appellee; Charles W. Hadley, of Wheaton, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a suit by appellant seeking to establish a resulting trust. Appellant is the daughter of Mr. Otto A. Fischer. Appellee, Alonzo Fischer, is the son of Mr. Otto A. Fischer, and Selma Fischer, a granddaughter.

It appears that Mr. Otto A. Fischer was a man of wealth with large and varied business interests. Following the death of his wife in 1922, he and his son Alonzo continued living at the family home in Elmhurst, Illinois. The father and son were engaged in various financial enterprises and financial investments. The father spent a considerable portion of his time at summer resorts and the winters in Beverly Hills, California. Appellee, Alonzo Fischer, among other enterprises, was associated with his father in the First National Bank of Elmhurst, from its beginning. His father was a director and for a time, vice president. Alonzo was cashier and chairman of the board.

Mr. Fischer died in 1931. Appellant instituted this action in 1939, in which she charged that her father and her brother Alonzo had been associated in business for 30 years or more prior to her father’s death; that during the last 10 years of his life, Alonzo had occupied a fiduciary relationship toward his father and in connection with his mon'ey, property and business interests; that her father was 82 years of age at the time of his death, and due to his age, had entrusted his business investments to Alonzo, as well as large sums of money and securities; that the father had turned over to Alonzo large sums of money for the purpose of investment, which investments Alonzo took in his own name; that such investments were made by Alonzo for his father, and that the property so acquired was held in trust by Alonzo for the use and benefit of the father, Mr. Fischer, and now for his heirs; that it was the duty of Alonzo to make accounting to the administrator of the estate, of such money and the revenues therefrom; that he has failed in this regard; and that the administrator of the estate of Mr. Fischer declined to institute any proceeding against Alonzo. Alonzo, by his answer, denied all charges of any fiduciary relation existing between him and his father. He admitted certain real estate transfers to him from his father, but alleges they were intended to convey the entire legal and equitable estate. The granddaughter, Selma Fischer, and the administrator, the Northern Trust Company, filed no answer and order of default was entered as to these two defendants.

The cause was referred to the master, who stated that pursuant to stipulation of the parties, his report covered and considered only the question of whether a fiduciary relationship existed between Mr. Fischer and his son, Alonzo, and if so, whether such relationship was abused. The master found that Mr. Fischer was a man of experience in business, banking and insurance; that he was financially successful and actively engaged in such business until the date of his death; that he suffered no disability, either mentally or physically, which in any way impaired his ability to carry on his business affairs; that for a number of years he spent a great portion of his time in the State of California, while his son Alonzo, continued his business in Illinois; that the father and son met only on such occasions as when they visited each other at the home at Lake Geneva, or when Alonzo would go to California. The master found that the only proof going to support the charge of fiduciary relationship between the father and son was, that they were father and son; that they lived together in the home for a number of years; that they visited each other in California and Lake Geneva; that the father gave to the son various sums of money at various times; that the relationship between the father and son was pleasant and devoted; that the father conveyed certain real estate to the son; that there was no proof the son acquired any dominion over his father, or that he exercised any influence over his father in the conduct of his father’s business. The master concluded that the proof failed to sustain the charge of fiduciary relationship between the parties at any time, or that Alonzo exercised any influence over his father’s business transactions. The report recommended vthat a decree be entered dismissing the complaint for want of equity. - Objections to the report were overruled. Exceptions thereto were likewise overruled, decree rendered pursuant to the master’s report, and the complaint dismissed for want of equity.

Tillie Meilke, a witness for appellant, appears to have lived in the household of Mr. Otto A. Fischer for many years. She was the housekeeper in 1922 when -Mrs. Fischer died. She continued in the service of Mr. Fischer until his death in 1931, at the home in Beverly Hills. She went there with him in 1928. She testifies concerning certain visits that Alonzo would make to his father in California, and of their companionship together. She says that whenever Mr. Fischer would refer to the home in Beverly Hills, he always referred to it as belonging to Alonzo; that this was true of other real estate concerned in this litigation; and that at such times Alonzo was not present.

A resulting trust arises, if at all, at the time the deed is made and the title vests. Roche v. Roche, 286 Ill. 336, 351. A fiduciary relation exists in cases where influence has been acquired and abused. Influence through affection is not wrongful, nor the relationship of parent and child a presumption of undue influence. Ropacki v. Ropacki, 341 Ill. 301, 306, 307 (cases cited). In the case of Hogg v. Eckhardt, 343 Ill. 246, it is stated on p. 254, “Where a complainant alleges that a transaction is invalid by reason of a fiduciary relation and on that basis seeks to recover property in the possession of the defendant, relief is predicated upon the doctrine of constructive trusts, and when awarded it is on the theory that the defendant holds title as trustee for the grantor, and in such cases it is incumbent upon the complainant to establish the claim of fiduciary relation and constructive trust by proof which is ‘ clear and convincing, and so strong, unequivocal and unmistakable as to lead to but one conclusion.’ ” (with cases cited).

The proof shows Mr. Fischer was mentally capable and continued to direct his business, affairs until his death. Such transactions as are complained of occurred long before his death. It is only natural that a father who is financially successful in the business world, is anxious that his son become experienced in business, capable and dependable, in order that he may be successor to the things the father labored to establish. Such a situation is founded upon mutual respect, confidence and trust, but it does not of itself give rise' to the presumption of a fiduciary relationship such as contemplated in actions of this character, as where confidence is reposed on the one side, with a resulting superiority and influence on the other. White v. Smith, 338 Ill. 23; Bennett v. Hodge, 374 Ill. 326.

Purchase money trusts usually fall within the grouping of resulting trusts. Property is frequently acquired in the name of one person when another pays the purchase price. Since the question is one of intent of the parties, each case therefore depends upon the various and peculiar circumstances and items of evidence connected therewith. Quite often the payor of the consideration for property acquired is closely related by blood or marriage to the person in whose name title is acquired. The most common situations in this regard are between husband and wife, or parent and child. The relationship in such cases is very close and is an important consideration. Under such circumstances, the subsequent conduct and attitude of the parties toward the acts in question and the property acquired, their financial situations, their relationship in the conduct of common business enterprises and investments, all shed light on the true intent of the parties in connection with such transactions.

The situation existing in this case creates a presumption of gift which has in no way been weakened by any evidence tending to rebut such presumption. Father and son moved along the pathway of life together, engaged in joint enterprises, doing the work of the day for 30 years. The evidence shows they had great love and devotion for each other. This is not to be considered as evidence tending to prove deceit and wrongful conduct on the part of the son as charged in the complaint.

The testimony in the case is brief. From an examination of the evidence we conclude, as did the master and the trial court, that the proof fails to sustain the allegations of the complaint.

The decree is therefore affirmed.

Decree affirmed.


text:
    Union Federal Savings and Loan Association, Plaintiff-Appellant, v. Vincent E. Hunt, Defendant-Appellant, and Mabel W. Brown, Jr., Assignee, etc., Defendant-Appellee.
    Gen. No. 9,962.

      Opinion filed September 19, 1944.
    Leonard D. Quinn, Thomas J. Welch and Vera M. Binks, all of Kewanee, for appellant.
    Harry E. Brown and Mabel W. Brown, both of Geneseo, for appellee; Bartlett S. Gray, of Geneseo, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This appeal involves a dispute between a senior and junior mortgagee over rents collected from the mortgaged premises by a receiver.

Appellant, Union Federal Savings and Loan Association, instituted this suit to foreclose upon certain residence property owned by Vincent E. Hunt, and pursuant to a mortgage thereon given by him to appellant association to secure a loan of $3,600. The complaint set up that the said Hunt was also indebted to the Union State Savings Bank and Trust Company, in the sum of $1,000, and had executed to it a subsequent and junior mortgage on the premises, to secure such loan.

The junior mortgagee, Union State Savings Bank and Trust Company, was then in receivership with Charles H. Albers acting as receiver. He filed answer on behalf of the junior mortgagee, setting up that he, as such receiver, was the legal holder of the note and mortgage as described in appellant’s complaint.

Decree for foreclosure was entered on November 22, 1941. It found the existence of the indebtedness by Hunt to the senior and junior mortgagees, and that the mortgage of plaintiff appellant was a first and superior lien on the premises. Decree provided for sale in default of payment, and found that plaintiff appellant should be entitled to receive payment for any deficiency that might exist, and that the Master should specify the amount of any such deficiency in his report of sale, and that upon confirmation of such report of sale, the amount of such deficiency with interest should be paid the plaintiff appellant.

Otto C. Woerter had been substituted during the process of the suit for Charles H. Albers. On the day of the taking of the decree, November 22,1941, the receiver Woerter petitioned the court for the appointment of a receiver, which petition prayed that such receiver should take charge of the premises, collect the rents during the period of redemption, and that the same should be applied toward payment of the indebtedness and costs due the junior mortgagee. Pursuant to such petition, the court on December 6, 1941, entered its order appointing a receiver for the premises, and ordered that the rents therefrom should be applied upon the indebtedness due to the junior mortgagee.

The plaintiff in the suit, appellant herein, upon learning of the above petition and order, on January 16, 1942, filed its motion to modify the above order, so that it would provide that the money collected by the receiver should be brought into court to be paid out under the order and direction of the court, instead of being paid directly to the receiver on behalf of the junior mortgagee, as provided for in the order. For cause for its motion, it set up that its mortgage pledged both the premises and the rents, profits and income therefrom, and that it, the plaintiff, was entitled to have such rents, income and profits applied to the discharge of its debt, in the event the premises did not sell for a sufficient amount to pay its debt, interest, and costs of suit. It does not appear this motion of plaintiff appellant was ever acted upon.

The Master filed his report of sale showing a deficiency of $500 on plaintiff appellant’s debt. On June 6, 1942, the court rendered decree confirming the Master’s report of sale, and deficiency. Thereafter, appellee, Mabel W. Brown, Jr., by motion was substituted as defendant for Otto 0. Woerter, receiver, she having purchased the remaining assets of the Union State Savings Bank and Trust Company, of which the one concerned with herein was a part.

On June 5, 1943, the receiver filed his report showing that he had on hand the sum of $203.22 from rents received. On motion of appellee Brown, and over objections of plaintiff appellant, the court ordered the receiver to pay the above sum to appellee Brown, holder of the junior mortgage. The plaintiff appellant has appealed from such order. Appellee Brown has assigned cross-appeal with respect to credit for $91.78 allowed the receiver for real estate taxes, which he had paid on the property involved.

Appellee seeks to invoke the rule that where a receiver is appointed in behalf of a junior mortgagee to receive the rents for his benefit, such junior mortgagee acquires a specific lien on the rents collected by the receiver, superior to any claim of the first mortgagee. In proper cases this rule applies. Jones on Mortgages (7th ed.), vol. 3, ch. XXXIII, sec. 1523. It is stated by the Supreme Court in Cross v. Will County Nat. Bank, 177 Ill. 33, on p. 39, that, “Undoubtedly, where the first mortgagee is not made a party defendant to a bill to foreclose filed by a second mortgagee, such second mortgagee, procuring the appointment of a receiver to collect the rents and profits, is entitled to have such rents and profits applied upon his mortgage to the exclusion of the prior mortgagee; and, in such case, the prior mortgagee will not be entitled to payment out of the rents, until he files a bill to foreclose his mortgage and procures the receivership to be extended to his security.” It is upon this case appellee Brown relies.

The appointment of a receiver at the instance of a junior mortgagee is made without prejudice to those having prior rights in the property. And a receiver so appointed is only entitled to receive the rents and profits for the benefit of the junior mortgagee until such time as a prior mortgagee takes steps to have such receivership extended to his security. Cross v. Will County Nat. Bank, 177 Ill. 33, 39, 40; Yoelin v. Kudla, 302 Ill. App. 412, 428; Douglas Loan & Mortgage Co. v. Isenberg, 275 Ill. App. 76, 79, 80; High on Receivers (4th ed.), sec. 688.

It is generally considered that the exclusive right of a second mortgagee to the rents and profits of the mortgage estate under a receivership in a foreclosure proceeding, is limited to cases where the first mortgagee is not a party to the suit. Cross v. Will County Nat. Bank, 177 Ill. 33, 39, 40; Jones on Mortgages (7th ed.), vol. 3, sec. 1524; Miltenberger v. Logansport, C. & S. W. R. Co., 106 U. S. 286, 27 L. Ed. 117; High on Receivers (4th ed.), sec. 688.

It is observed by High on Receivers (sec. 688) that the general rule is that a junior mortgagee who obtains a receiver of the rents and profits in aid of a bill to foreclose his mortgage, is entitled to such rents and profits up to the time the prior mortgagee sees fit to assert his rights to the same and moves to have the order appointing the receiver 'extended for his benefit. And until this course is pursued by a prior mortgagee, the incumbrancer upon whose application the receiver was originally appointed is entitled to have the rents received applied in satisfaction of his demand, irrespective of any question of priority, since such rents are realized by his superior diligence. This is the rule in this State, evidenced by the cases cited herein.

We find here that soon after the order of the court appointing a receiver for the premises for the benefit of the junior mortgagee, appellant filed its motion to modify such order to provide that the money collected by the receiver should be brought into court to be paid out under the order and direction of the court, instead of being paid to the junior mortgagee; and that appellant as cause for its motion, set up that its mortgage pledged both the premises and the rents, profits and income therefrom; and that it was entitled as senior mortgagee to have such rents, income and profits applied to the discharge of its debt, in the event the premises did not sell for sufficient amount to pay same. This motion by appellant was filed a month before sale of the premises by the Master, such sale being on February 16, 1942.

A court of equity is always cautious not to interfere with the rights of a senior mortgagee, and especially so, where the foreclosure proceedings are instituted by the prior mortgagee. This suit was instituted by appellant as first mortgagee. The State Savings Bank and Trust Company was made a defendant therein by virtue of its position as a junior mortgagee. The complaint prayed for sale of the premises in case of failure of the mortgagor to pay the debt within the time fixed, and for a deficiency judgment in case the premises did not sell for a sufficient sum to discharge its debt, interest and costs. The complaint further prayed that a receiver be appointed to take charge of the mortgaged premises during the pendency of the action and the time for redemption, 'to collect the rents and income therefrom. When appellant set up its priority as a first lien holder against the premises and the issues therefrom, and by its complaint prayed for a deficiency decree for such amount as might exist after sale, with prayer for appointment of receiver as aforesaid, it was in substance saying that it had an interest in any such fund that might arise by virtue of such receivership.

As stated in Yoelin v. Kudla, 302 Ill. App. 412, on p. 424, “It has been repeatedly held that where a receiver is appointed in one case and is in possession of the mortgaged premises, the court should upon a proper showing, extend the receivership to cover the premises in a foreclosure suit instituted by a prior mortgagee.” And further, as on p. 428, that any exclusive right of a junior mortgagee to rents through the appointment of a receiver at his instance, is predicated not on his second mortgage, but on his superior diligence, and such exclusive right continues only so long as the prior mortgagee refrains from asserting his prior right. To the. same effect are the cases of, Douglas Loan & Mortgage Co. v. Isenberg, 275 Ill. App. 76, 79, 80; Lavelle v. Steiner, 270 Ill. App. 131; Altschuler v. Sandelman, 264 Ill. App. 106; Palmer v. Lewistown Nat. Bank, 238 Ill. App. 492.

Appellant was the original plaintiff in this action and its debt was prior to any rights of the junior mortgagee to receive any money upon its indebtedness. The court erred in not granting plaintiff appellant’s petition of January 16, 1942, to modify its order appointing the receiver, and the court erred in ordering the rent on hand paid to appellee Brown, the junior mortgagee.

Since the sum subject to distribution by the receiver is far less than the amount of appellant’s deficiency, it is unnecessary to consider appellee’s cross-appeal with respect to the item of payment of real estate taxes in the sum of $91.78.

The judgment and decree of the trial court is reversed and the cause remanded for further proceedings in accordance with the views hereinabove expressed.

Reversed and remanded.


text:
    David H. Cummings and Leon E. Sutherland, Trustees of Henebery Estate, Appellees, v. Edward J. Cashin, Jr., et al., Appellants.
    Gen. No. 9,971.

      Opinion filed September 19, 1944.
    Morgan, Pendarvis & Morgan, of Peoria, for appellants.
    L. E. Sutherland, of Peoria, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This suit was filed by appellees, as trustees, in two separate trusts, to terminate said trusts and for decree for distribution thereof. The beneficiaries, or parties interested, are the same in each of the trusts. The trust first in period of time is referred to as the Henebery Trust, and the trust second in period of time is referred to as the Pool Agreement Trust.

The decree is in two parts, that is, one part deals with the termination and distribution of the Henebery Trust, while the second part of the decree deals with termination and distribution of the Pool Agreement Trust.

No appeal has been taken from that part of the decree with respect to the Henebery Trust. However, for the purpose of this opinion, it may be necessary to make reference to such trust because of the fact the parties interested in the two trusts are the same, and the trustees in each instance the same.

•' The duration of each of said trusts was definitely fixed at a certain number of years. The time fixed in each has expired. There appears to be no objections to the termination of the trusts.

The Henebery Trust was established in September 1928. It evidently was productive of large revenues. The beneficiaries under that trust, as individuals and in their individual capacity, made investments in southwest land mortgages. Their respective investments totaled about a quarter of a million dollars. A few of the investments were represented by real estate mortgage bonds, or mortgage notes, which were but a part of a total issue. These are referred to as “split mortgages.”

These investments were proving unsatisfactory. The time had come when something must be done in order to protect them against loss. This situation was productive of the second named trust, referred to herein as the Pool Agreement Trust. This trust came into existence on February 1, 1934, when by written instrument the beneficiaries conveyed their farm mortgage securities to appellee trustees. The mortgages were described as being delinquent in principal, or interest, or both. The parties to the instrument state therein that it was their desire to liquidate the mortgages and convert them into cash. The trustees were given full power to rent, lease, sell, foreclose, and convey such property at whatever price they might deem proper; to make contracts and agreements of any kind or nature concerning the property, that they might deem proper; and with full power to manage and control the same in such manner as they might deem best or desirable. The trustees were also empowered to pay any expenses incurred in connection with the proposed liquidation of the mortgages and lands thereby secured, all court costs, attorneys’ fees, taxes, and any other expense incurred in the handling of the property, or in the foreclosure of the mortgages. It was further provided that the trustees should keep a record with respect to each of the tracts covered by the several mortgages showing the interest, rents, proceeds of sale, and expenses incident thereto. The duration of this trust was fixed at five years.

The term Pool Agreement Trust, as applied by the parties to the instrument herein, is but a term of convenience. It is not so designated by the instrument itself. It was not a business trust for the purpose of operating lands or land investments for profit. To use a harsh term, it was an attempt by the owners of unfortunate investments in southwest land securities to salvage therefrom as much as possible of their original investments. The sole purpose of the instrument was to liquidate such investments in whatever manner the trustees found possible. To accomplish this result they conveyed their securities to the trustees by the liquidation agreement, instead of each party pursuing their own course. The respective parties were far removed from the location of the mortgaged property. The trustees selected were, no doubt, already familiar with the investments, due to the relationship among them with respect to the Henebery Trust.

There is no question but that the trustees set about to accomplish the purpose of the trust and made every effort to achieve the object thereof. Over $108,000 were expended by them in an effort to accomplish the ends sought.

It is conceded by all parties that the purpose of the trust has failed and no objection is made to its termination, or to the acts of the trustees in their attempt to accomplish its purpose. This appeal arises solely with respect to the manner in which the court ordered distribution of the funds and property of the liquidation agreement trust, which by the parties is termed the Pool Agreement Trust.

The trustees bring this suit wherein they set up that the trust instrument by its own terms expired in 1939; that title to some of the mortgaged land has been lost because of nonpayment of taxes; that they have been unable to accomplish the purpose of the trust; and desire to be relieved of further responsibility. They ask that the court take an accounting of the receipts and disbursements with respect to each mortgaged tract, and that they be directed to convey back to the various beneficiaries their proportionate share of the securities, farms and assets on hand, under a judicial determination.

Appellants complain that the decree for distribution of the liquidation trust agreement directs that the trustees shall return all unliquidated securities to the persons depositing same; that they shall convey all unsold farm land acquired by virtue of any mortgage security to the person depositing such security; and that cash received from the liquidation of mortgage securities, or from the sale of lands acquired thereunder, and income derived from said farms, should be distributed pro rata among the parties to the instrument in the ratio that the principal amount of the mortgage securities deposited by each bore toward the aggregate amount of all such securities deposited by the several parties; and that all parties should bear a pro rata share of the cost of acquisition of all lands acquired, and all expenses incurred, under the liquidation agreement.

Appellants object to that part of the decree which deals with the distribution of money from the liquidation of mortgage securities, or from the sale of lands acquired thereunder, or derived from lands so acquired. They also object to the provision of the decree that each party should bear a pro rata share of the cost of acquisition of lands acquired and all expenses incurred by the trustees in and about their effort to accomplish the purpose of the trust.

Among the securities deposited by several of the parties were what is called “split mortgage” securities. These were either mortgage notes or real estate mortgage bonds, issued under a trust deed. In some instances, the trustees proceeded to acquire the balance of the outstanding mortgage securities in order that they might control the situation and bring the title to the securities or to the land mortgaged, into the beneficiary holding such split mortgage notes. In the doing of this, the trustees enhanced the value of such beneficiary’s interest in the mortgaged, premises. For instance, it appears that one of the beneficiaries deposited a $600 bond of a total mortgage bond issue of $3,100. The trustees acquired title to all of the mortgaged premises at a cost of $1,190.42. It would appear that the transactions of this character enabled the trustees to acquire outstanding securities at a greatly reduced price from the face value thereof. Appellants urge that it would be unfair and inequitable to divide the proceeds from securities that were liquidated, or from sale of lands acquired thereunder, among the several parties in the proportion their deposit bore toward the aggregate, because those parties whose securities or lands were liquidated have no further interest left, and if the proceeds from their securities should be divided among all of the parties in a pro rata distribution, those persons whose securities were unliquidated, or whose lands were unsold, would receive the same back, and in addition thereto a pro rata share from the securities and lands sold. They urge that such distribution would result in the beneficiary whose securities and lands were liquidated, contributing therefrom to the other beneficiaries their pro rata share, while those whose securities or lands were not liquidated would receive the samp back in. full as deposited. Appellants further urge the proposed distribution would cause those whose securities and lands were liquidated to suffer an unjust burden, by forcing the proceeds from the sale of their securities and lands to bear a portion of the cost and expense incident to acquiring the outstanding mortgage indebtedness on lands upon which some of the parties held split mortgages.

Briefly stated, appellants object to the unliquidated securities and unsold lands being returned in full to the' beneficiaries depositing same, and at the same time permitting such beneficiaries to share pro rata in the proceeds from the sale of securities and lands which were liquidated. Also in this respect is the situation of the split mortgage securities which were increased to the full extent of the mortgage indebtedness.

It appears the trial court undertook to bring about a distribution of the property and funds of this liquidation trust agreement in a manner which would have been in accordance with the purpose and design of the parties, had the trust not failed of accomplishment. Therefore, the decree directing distribution is founded upon a percentage or pro rata basis, with each party sharing in the expenses in connection with the trust and participating in a distribution of money on hand, proportionately as the principal amount of their deposit bore toward the aggregate. We have already noted appellants’ objections to this method of distribution and of satisfying the expenses incurred by the trustees in their attempt to execute the trust.

It appears that only approximately 20 per cent of the securities were liquidated. The difficulty here is that to permit 80 per cent of the security holders to participate pro rata in a 20 per cent liquidation would dissipate such fund to the irreparable injury of those whose securities were liquidated. Such a situation would result in those whose securities were not liquidated, or lands acquired not sold, sharing pro rata in the proceeds from the securities liquidated and at the same time receiving back from the trustees the securities deposited by them, or lands acquired thereunder.

Prior to the execution of the trust instrument, there was no community of property rights among the parties. They each owned individually their respective mortgage securities. The sole purpose and object in creating the liquidation trust was that the parties thereto might liquidate their respective securities through one agency and as expeditiously as possible. The instrument clearly indicates that the parties thereto anticipated and intended that all of the mortgage securities would be liquidated, in which event they expected to bear their proportionate or pro rata part of the costs incident thereto. It is apparent from a reading of the instrument that they did not contemplate such a condition or situation as we now find. Since the trust has failed, it must necessarily be considered that the intent and purpose thereof, as contemplated by the parties creating the same, has likewise failed. And since the time fixed by the trust for its duration has long since expired, it appears an emergency exists in regard to such trust instrument. The trustees have instituted this suit to terminate the same, and in order to be relieved of questions that might arise among the parties, ask the court to determine by decree how the securities, lands and money shall be distributed.

Equity is now faced with the problem of allotting the interest to each respective party in a manner which will save for them, so far as possible, the benefits to which they are entitled by virtue of the security they originally deposited. This is not an easy task, and as above stated, is not one that was contemplated by the parties creating the trust.

The object of the trust has so completely failed of accomplishment that it is impossible to give expression thereto in accordance with the purpose and intent of the parties creating the instrument. Neither is it possible to make a distribution as contemplated by the parties. Therefore, we are compelled to face a situation of a distribution of the property due to failure of accomplishment and not under circumstances contemplated by the parties or provided for by the trust instrument.

The only other basis than that used by the trial court, this court can perceive whereby distribution may be had, is one where each of the parties shall be placed in status quo as nearly as circumstances will permit. The interests of the parties were vested at the time of the creation of the trust instrument. The securities deposited were the individual property of the several parties, represented by investment of their own respective funds. Since the object of the trust has failed of accomplishment, by the very nature of things, the securities on hands must be returned to the persons depositing them. However, with respect to a small portion of such securities, we find the trustees were successful in liquidating same.

The decree directs that the master shall take an accounting with respect to receipts and disbursements of the trustees under the liquidation agreement. The evidence shows the trustees maintained a complete and accurate record of all expenses and receipts in connection with each security deposited and with the land thereunder pledged. Thus we find the trustees have available accurate accounts with respect to the above items.

As above indicated, it is the opinion of the court that the distribution of the property of this trust should be had with a consideration in mind of endeavoring to place each of the parties in the position they were at the time of the making of the instrument, so far as possible. The object of the trust has so wholly failed that it is impossible to carry out the purpose and intent of the parties as expressed therein. Therefore, we have reached the conclusion that instead of the distribution being made upon a pro rata basis, which was the ultimate object under the instrument itself, that each of them shall receive his security or the lands acquired thereunder, or the proceeds resulting from liquidation thereof. This will mean that each person whose mortgage security is unliquidated will have the same returned; that any person under whose mortgage security land was acquired and unsold, will receive conveyance for such land; that those whose securities were liquidated either in kind or by the sale of land acquired thereunder, shall receive the proceeds therefrom; that those who held split mortgages which were enhanced in value hy the trustees acquiring the balance of the outstanding mortgage indebtedness, shall receive such mortgage security, the lands acquired thereunder, or the proceeds from the sale thereof; and that each of the parties shall be charged with the costs and expenses that have been entailed in connection with their respective securities and the premises upoh which they were a lien. Bach person should be credited with any rents or issues from his land, or from the sale of any land acquired by virtue of his security. Briefly, this will mean that each person to the instrument shall be charged and credited with expenses and receipts in connection with his or her securities upon the same basis and in the same manner as if the parties had each pursued their own individual course in an effort to liquidate their securities. Under such circumstances, had they made the effort the trustees have made for them, and failed, as has occurred here, they would have naturally incurred whatever expenses arose in connection with such effort Had a few of the individuals been successful in liquidating their securities, they would have paid their expenses and retained what was left. The situation we find the parties in at this time with respect to their common effort to act through the trustees, is not dissimilar from the illustration above. The common-intent has so completely failed as to render it impossible to carry out a distribution.of the cash assets in a manner contemplated by the parties and intended by the instrument, because the purpose of the parties and the intent of the instrument is that the distribution to be made thereunder shall be one of cash and not a return of the securities in kind.

Therefore, the decree' with respect to distribution is reversed and the cause remanded to the trial court for an accounting and further proceedings in accordanee with the views hereinabove expressed. In all other respects, the decree is affirmed.

Affirmed in part, reversed in part, and remanded with directions.


author: Mr. Justice Huffman Dove, P. J.:

text:
    Alex Wallace, Administrator of Estate of Donald Wallace, Deceased, Appellant, v. City of Rock Island, Appellee.
    Gen. No. 9,981.

      Dove, P, J., concurring in result.
    Opinion filed September 19, 1944.
    Eagle & Eagle, of Rock Island, for appellant.
    Leo J. Herbert, of Rock Island, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action by appellant administrator under the Injuries Act for the wrongful death of his 13 year old son. Trial resulted in favor of appellant, the jury returning a verdict in the sum of $500. Among other things, appellant urges as ground for reversal, the inadequacy of the verdict. The deceased left lineal kindred consisting of his father, mother, and one sister.

As stated in Rost v. F. H. Noble & Co., 316 Ill. 357, 375, the law presumes substantial injury to the parents. An illustrative case is that of Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330. Here, the court distinguishes the rule with respect to the question of damages, where the deceased leaves lineal next of kin, and where the same are collateral. It is there announced that when the next of kin are lineal, the law presumes pecuniary loss from the fact of death, while if the next of kin are collateral, it then becomes a material question whether they were receiving pecuniary assistance from the deceased (pp. 334, 335). Also see Mugaviro v. Chicago, B. & Q. R. Co., 239 Ill. App. 544, 550; Swengel v. Chicago, O. & P. R. Co., 208 Ill. App. 525. An interesting annotation of 37 pages will be found on this question in 149 A. L. R. p. 234. Here, we find the statement, that by the great weight of authority, substantial damages may be recovered by the parents of a minor child for his wrongful death, notwithstanding the fact such child had not been gainfully employed; and that such damages were to be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex, physical and mental characteristics of the child. Many Illinois cases will be found referred to throughout the annotation.

Damages in cases of this character are incapable of determination by any fixed mathematical calculation or rule of certainty. From the very nature of the circumstances, there can be no exact rule of determining the value of services which a deceased child would have rendered, had death not intervened. So, we find that such damages as are assessed by the jury are peculiarly subject to the power and duty of the trial judge to consider same with a view to the bounds of reasonable probability. It might be said that this rule leaves much to be determined as to certainty, but it is not altogether a stranger to tort actions in general. Verdicts in personal injury suits, as well as under the Injuries Act, differ materially in cases where the circumstances are not dissimilar.

Section 2 of the Injuries Act (ch. 70, par. 2, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 38.02]) provides that, the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from death. The wording of the statute limiting compensation to the pecuniary injuries resulting from death, is not to be characterized or construed as limiting recovery to the present loss of money, but prospective advantages of a pecuniary nature are to be considered as embraced in such language. A reasonable expectation of benefits from the continuance of life may be taken into consideration, and such are not limited to the period of minority. City of Chicago v. Keefe, 114 Ill. 222, 230; Baltimore & O. S. W. R. Co. v. Then, 159 Ill. 535, 538, 539; Illinois Cent. R. Co. v. Reardon, 157 Ill. 372, 378; Chicago & E. I. R. Co. v. Beaver, 199 Ill. 34, 38; Chicago & A. R. Co. v. Kelly, 182 Ill. 267, 272; Illinois Cent. R. Co. v. Warriner, 229 Ill. 91, 97; Huff v. Peoria & E. R. Co., 127 Ill. App. 242, 249.

The evidence in this case shows the deceased to have been 13 years of age, a healthy boy, and a good student in his classes at school. This is about all that can be said with respect to a young child of school age. Verdicts in the maximum statutory amount have been permitted to stand in cases of children younger than the child in this case. Deming v. City of Chicago, 321 Ill. 341; Petrovic v. City of Chicago, 251 Ill. App. 542. We find many other similar cases where verdicts of substantial amounts were permitted to stand, among which are Gregory v. Merriam, 294 Ill. App. 483 and Trust Co. of Chicago v. Ancateau, 317 Ill. App. 186.

Nominal damages are such damages as are awarded in cases where the alleged negligence is proved, but where there is either a failure of proof as to-damages suffered or no damages resulted. The court is of the opinion the damages as fixed by the verdict in this •case cannot be considered other than nominal. Under the rule in this State, a parent, on the finding of negligence causing the death of a minor son, is entitled to a substantial verdict. The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.

Dove, P. J.:

I concur in the holding that the judgment should be reversed and the cause remanded.