text:
    Walter Hauck, Appellee, v. First National Bank of Highland Park, Appellant.
    Gen. No. 9,943.

      Opinion filed April 27, 1944.
    Opinion modified and rehearing denied June 27, 1944.
    John W. Munro, of Highland Park, and Hall & Hulse, of Waukegan, for appellant; John W. Munro, of Highland Park, and Albert L. Hall, of Waukegan, of counsel.
    Decker & Doolen, of Waukegan, and Taylor, Miller, Busch & Boyden, of Chicago, for appellee; Bernard M. Decker, of Waukegan, and Charles R. Sprowl, of Chicago, of counsel.
   Per Curiam.

Walter Hauck recovered a judgment in the circuit court of Lake county against the First National Bank of Highland Park for $10,500, on account of money to that amount alleged to have been deposited in, and to have later disappeared from, a safety deposit box rented by appellee from the bank, and the cause is here by the bank’s appeal from the judgment.

The complaint charged a failure to use ordinary care and diligence to safely keep the money so deposited and stored in the safety deposit box, and permitting it to be taken therefrom without the knowledge or consent of appellee or his wife. The answer denied these allegations, and alleged ordinary care and diligence on the part of appellant at all times when the safety deposit box was in its exclusive possession and not in the possession of appellee or his wife. The issues raised by the pleadings were submitted to a jury which returned a verdict upon which the judgment was entered. The jury also answered in the negative the two following written interrogatories:

“1. Did the defendant use such care and diligence in keeping and handling the safe deposit box and contents of the Plaintiff, as was customary at the time in question on the part of other institutions fairly comparable in size and other conditions to defendant in neighboring communities of the same size as Highland Park, Illinois?
“2. Did the defendant use ordinary care and diligence in keeping and handling the safe deposit box and contents of the plaintiff?”

The grounds urged for reversal are that the trial court erred in denying appellant’s motion for judgment notwithstanding the verdict; that the verdict and the jury’s answers to the two interrogatories are against the manifest weight of the evidence, and therefore, that appellant’s alternate motion for a new trial should be granted if its claim as to the motion for judgment notwithstanding the verdict is denied by this court.

The relation between the parties was that of bailor and bailee for hire. Appellant was not an insurer of the safety of the contents of appellee’s safety deposit box, but was required to use ordinary care and diligence in keeping the same. Ordinary care in such cases is such care as every prudent man takes of his own goods, and ordinary diligence in the preservation of such goods is such diligence as men of common prudence usually exercise about their own affairs. (Mayer v. Brensinger, 180 Ill. 110, 113; National Safe Deposit Co. v. Stead, 250 Ill. 584, 594.)

Appellee relies upon Schaefer v. Washington Safety Deposit Co., 281 Ill. 43, 51. In that case the money was deposited on one date and was missing on the next occasion when the plaintiff went to the box, and meanwhile the location of the box and its plate number had been changed. The Appellate Court held that the box holder was bound to prove some act of negligence, causing the loss of her money, which she had failed to do. In reversing that holding the Supreme Court, in its opinion, said:

“The undisputed evidence was that the box was in the exclusive control of the defendant and that the plaintiff could not obtain access to it except by signing a slip at the office and giving her key to the person in charge of the vaults. Under such conditions, we see no reason to depart from the ordinary rule that where a bailee receives property and fails to return it the presumption arises that the loss was due to his negligence, and the law imposes on him the burden of showing that" he exercised the' degree of care required by the nature of the bailment. (Cumins v. Wood, 44 Ill. 416; Sennett v. O’Brien, 37 id. 250.) To call upon the plaintiff, under such circumstances, to prove some specific act of negligence by which her money was lost, and which she must necessarily prove by defendant’s employees, would impose upon her a practically impossible burden.”

In the later case of Miles v. International Hotel Co., 289 Ill. 320, 327, the court said:

“As bailee the defendant in error was bound to exercise such care and diligence in the preservation of the property intrusted to it as every prudent man takes of his own goods of like character. Ordinary diligence means that degree of care, attention or exertion which under the circumstances a man of ordinary prudence and discretion would use in reference to the particular thing were it his own property. (Schaefer v. Safety Deposit Co., 281 Ill. 43.) The weight of modern authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were not returned to the bailor on demand the bailor has made out a case of prima facie negligence against the bailee, and the bailee must show that the loss or damage was caused without his fault. (Cumins v. Wood, 44 Ill. 416; Schaefer v. Safety Deposit Co., supra.) The effect of this rule is, not to shift the burden of proof from plaintiff to the defendant but simply the burden of proceeding. The bailor must in all instances prove that the bailee was negligent, but when she shows that the goods which she intrusted to the bailee’s care were not delivered upon demand she has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make out her case, must show that the bailee was, in fact, negligent and that its negligence caused the loss or contributed thereto. It was held' in Sanborn v. Kimball, 106 Me. 355, that the bailee has sufficiently exonerated himself from liability when he has shown that the cause of the loss was a mystery.”

A like holding as to the burden of proof is found in Roberts v. Minier, 240 Ill. App. 518. The Miles case modifies and elaborates the rule set out in the Schaefer case, and the Nebraska Supreme Court in Bohmont v. Moore, 138 Neb. 784, 295 N. W. 419, 133 A. L. R. 270, treats the Miles case as repudiating the doctrine of the Schaefer case.

As to the claim that the court erred in denying appellant’s motion for judgment notwithstanding the verdict, appellee made a prima facie case by testifying that he rented a safety deposit box, in his and his wife’s name, from appellant, received two keys therefor, placed $10,500 therein on March 5, 1941, never took any of the money out, and that when he visited the box on February 3, 1942, the money-was not in the box, but had been taken therefrom without his or his wife’s knowledge or consent. On a motion for judgment notwithstanding the verdict, the question presented is whether there is any evidence, which, taken with the intendments most favorable to appellee, tends to prove the charge of the complaint. If there is in the record evidence, which, standing alone, tends to prove the material allegations of the complaint, a motion for judgment notwithstanding the verdict should be denied, even though upon the entire record the evidence may preponderate against the plaintiff so that the verdict in his favor cannot stand when tested by a motion for a new trial. (Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59, 61, 62; Lederer v. Railway Terminal & Warehouse Co., 346 Ill. 140, 145; Knudson v. Knudson, 382 Ill. 492, 494.) The trial court did not err in denying appellant’s motion for judgment notwithstanding the verdict.

The remaining question is whether appellant’s motion for a new trial should have been granted because the verdict and the jury’s answers to the two written interrogatories are against the manifest weight of the evidence.

The record discloses that appellee had been a resident of Highland Park since June A, 1937, living in a home which he built in 1936. He had been a cosmetic salesman for the Yardley Company Ltd. of New York for 16 years, being retired by his employer on June 1, 1943, and was, unemployed at the time of the trial. Prior to that employment he represented another cosmetic manufacturer for 4 or 5 years in Texas and still another for 3 or 4 years in Chicago. He conducted a drug store in Atlanta, Georgia, for about 2 years, and at different periods lived in San Francisco, California; St. Louis, Missouri; Louisville, Kentucky, and Chicago, and at the time of the trial had sold his home in Highland Park and was planning to go to Florida. About May 1938, he rented, in his and his wife’s name, from appellant, safety deposit box No. 331 and received two keys thereto. He kept some life insurance policies, shares of corporate stock, gold certificates, gold coins, the deed to his home and other articles in the box. He opened a checking account with appellant during the latter part of the year 1938, in which he deposited the proceeds of his drawing account and commissions, and by the end of February 1941, his balance, including $5,000 which he testified came from the sale of his interest in a Texas farm, had reached the sum of $11,729.57. During the latter part of that month or. the first few days of March 1941, he applied to one of the tellers for $10,500 in $500 bills, which appellant procured from the Federal Reserve Bank, and on March 5,1941, the bills were delivered to him upon his check for that amount. Appellant’s records show that this transaction took place at about 9:15 a. m., and that at 9:17 a. m. on the same day appellee visited his safety deposit box. He testified that when the teller handed him the bills, he asked for a brown envelope, and upon the teller’s saying he had none, he, the witness, put the money in his pocket with his hand on it, went to the safety deposit vault, where the custodian let him into his box, opened the door for him and raised the lid, and that he placed the bills in the box without leaving the vault. The admission slip signed by him at that time bears the notation “vault only” written by the vault custodian. He never informed any of the officers or employees of the bank that he was putting into or had any money in the box, and the vault custodian who unlocked it for him with one of his (appellee’s) keys and the bank’s guard key, testified that he never at any time saw the $10,500, and did not know it was in appellee’s box. The vault record cards show, and appellee testified that he visited the box on June 17, 1941, June 24,1941, July 1,1941 and February 3,1942. He further testified that on June 7, 1941, he went to the box to-put two $100 defense bonds therein and that on that occasion he put the $10,500 in an old brown envelope which he had had for a good many years, and that was in the box; that the visit of June 24, 1941, was to procure the bonds for a correction therein and that the box was not taken from the vault; that on July 1, 1941, he took his deposit box to one of the booths to examine the terms of an annuity insurance policy, after which he replaced the policy in his box, put the box back in the vault and went upstairs; that he then remembered the two defense bonds which had been corrected, and went back to his box, where the vault custodian raised the lid for him, and he (appellee) put the corrected bonds in the box and came out of the bank. His vault card shows only one entrance to his box on that day.

When he first talked to some of the officers of the bank about the money being gone, he described it as being ten $1,000 bills and one $500 bill. He testified that he withdrew the money from his checking account because of discussion of what was going to happen to everybody, and deposits being insured up to only $5,000, he wanted to use the money to buy a farm and figured that when he found one he liked, he could redeposit the money and draw a check on it, and had no reason for withdrawing it except for safekeeping. Mr. Erskine, vice president and trust officer of the bank, testified that appellee told him and Mr. Munro, the bank’s attorney, on February 3, 1942, after claiming the money was gone, that the reason he put the money in the safety deposit box was because he was afraid the government might freeze deposits and he would be compelled to take bonds. Appellee testified he could not say whether he made that statement.

The bank building faces south, and consists of the main banking floor and a basement. The safety deposit vault is in the basement, not touching any outside wall of the building. In front of the vault on the east side thereof is the vault lobby, reached by a stairway coming down from the center of the rear portion of the banking floor lobby. The stairway and vault lobby are accessible to the public. Behind this stairway to the north is a private elevator, which, on the banking floor communicates with private passages leading to the teller’s cages on each side of the banking lobby, and in the basement it opens onto a service lobby, which connects on the south with the vault lobby, and on the west with the directors’ room. East of the stairway there is a ladies’ room in the basement, opening onto the vault lobby, and south of the ladies’ room there are five customers’ booths, each provided with a door which can be locked. The vault is in the custody of the vault custodian, who has a desk between the customers ’ booths and the door of the vault. On the custodian’s desk is a complete Rand-McN ally cabinet with a card index of the names and box numbers of the safety deposit box holders. There is also an automatic time stamp, which stamps on each box holder’s card the year, month, day, hour and minute of each, access to a box, and to which the box holder is required to affix his signature whenever he enters the vault. While the cabinet and stamp are not locked, they are in the custody of the vault custodian, and he keeps a duplicate book record made by him, in a small room opening off the vault lobby.

A private stairway leads down from the work space near the south-east corner of the banking floor back of the east row of tellers’ cages to the south room of the basement, from which a door that is kept locked, communicates with the south end of the vault lobby, and in the south room there is an old vault used for storing books.

The safety deposit vault is made of reinforced concrete, the floor, walls and ceiling having a net work of wires and lead cables four or five inches apart, into which the vault door is also wired, making a closed electric circuit that turns on an alarm inside and outside the bank if the circuit is broken. The vault doorway is of the vestibule type, with an outer door eight to ten inches thick, having two combination locks and a triple time lock. The inner door also has a combination lock, and is in two sections -that fold back' against the sides of the vestibule when open. During business hours the vault doors remain open, a ramp or runway is placed from the sill of the vault door to the floor of the lobby, and the vault doorway is barred by a locked day gate made of metal grill work, swinging on an extension hinge, and having a spring lock and a spring that swings it shut. The vault contains approximately 2,500 safety deposit boxes, located on the north and south sides and down the middle thereof in a back to back tier. 535 boxes, of which appellee’s box was one, were acquired by appellant from the receiver of the North Shore Trust Company in May 1935 for $300. They are Hosier boxes, and were installed in the vault by a company that specializes in that kind of work. The two keys furnished appellee by appellant are the original keys supplied with the boxes by the manufacturer, marked with the letter “M” to indicate their make.

The only persons having a key to the day gate are Mr. Erskine, vice president and trust officer, Mr. Hart, assistant cashier, and Mr. Blasier, the vault custodian. All of the funds and securities of the bank are kept in the safety deposit vault at all times, except that such amounts as are needed for the day’s transactions are taken upstairs in the morning and returned at the close of the business day. The reserve cash of the bank, averaging $50,000, and the bank’s collateral and securities, are kept in seven of the safety deposit boxes, and there is in the vault a combination safe in which the bank’s reserve silver is kept. The vault also contains four tellers’ safes, each having a combination lock, in which the funds used during the business day are kept outside of banking hours. Each teller has the combination of his particular safe. The signature of two of the bank officers is required to gain access to any of the deposit boxes used by- the - bank, except that Mr. Grant, who is vice president, cashier and managing, officer, has access to the collateral box upon his own signature.

Two keys are issued to each holder of a box, and none of the boxes can be opened without the use of one of those keys, together with the guard key, commonly known as the master key, and the box holder’s key cannot be inserted all the way into the lock until the guard key is inserted and turned up. The guard key is in the personal possession of the vault custodian at all times, except while the vault is closed between the end of one business day and the beginning of another. At such times it is locked inside the vault. The only other time it is not in the possession of the regular custodian is when he is at lunch or on vacation, at which time the relief .custodian, Mr. Frantz, an employee of the bank for 15 years, is the usual relief custodian, and Mr. Glandt, the head bookkeeper, occasionally acted.

The only persons knowing the combination of the vault doors are Mr. Erskine, Mr. Hart and Mr. Grant. The time lock on the outer door is set at 3 o’clock p. m. each business day, checked by one of the three officers named, the vault doors are closed and locked by the vault custodian in the officer’s presence at the close of business, and the vault cannot be opened until the hour set by the time lock, 8 o ’clock a. m. of the next business day, and then only by one of the three officers having the combinations. Before banking hours when the vault is opened, the tellers come down stairs and get their cash from the teller’s safes, and their four cabinets or busses are wheeled out of the vault and taken upstairs on the elevator to their cages, by the vault custodian. Two of the cabinets are taken at a time, and at the close of the business day the vault custodian goes up to the teller’s cages and returns the cabinets to the vault for the night. This takes from 5 to 15 minutes each morning and evening. The day gate is always closed and locked while the vault custodian is bringing the tellers ’ cabinets downstairs after the close of business, and is always closed and locked while he is taking them upstairs in the morning unless some of the tellers or officers are in the vault at that time, and in that case the day gate is locked as soon as they are out of the vault. The tellers are not required to sign a card for access to their safes in the vault, but are required to do so when entering the vault for access to their individual deposit boxes. All officers, except Mr. Grant, and Mr. Hart, assistant cashier, are required to sign cards whenever they enter the vault, and the vault custodian keeps a record of Mr. Grant’s entrances.

The keys to unrented boxes are kept locked up in one of them, the key to which is in the possession of the vault custodian, kept by.him on a key ring with the guard key and the key to the day gate. The lock and the keys of any box surrendered by a box holder are changed if the bank does not have confidence in the way the box holder has kept his keys, or if only one of the keys is returned.

Whenever a box holder with whom the custodian is acquainted, desires access to his box he is required to sign a card pertaining to his box, showing the time of his visit, and he is then admitted to the vault by the custodian, who goes in with him, and locks the day gate behind them, locking it again when they leave the vault. The vault custodian uses the customer’s key and the guard key, one in each hand, to unlock the cubicle in which the box is locked. The box holder may enter his box without taking it from the vault, if he desires, in which case the entrance card is marked with a note so showing. If a box holder takes his box to one of the booths in the vault lobby, the vault custodian gives him back his key with the box. The custodian always examines the booth after the box holders come out of it, to ascertain if anything has been left out of the box, and such articles, if any, are promptly returned to the box holder.

When the vault is cleaned it is always done by the janitor in the presence of the vault custodian. The vault mechanism is inspected and oiled monthly by Mr. Agers, service man, who also attends to anything else the bolts or deposit boxes need. During the period in question the vault was never entered by any outsider, there were no burglaries or hold ups, there was no loss of any money of the bank, and during the entire existence of the bank, a period of about 20 years, there has never been any complaint, except by appellee, of any loss by a safety deposit box holder.

When the particular group of boxes was acquired, appellant made no investigation into the identity of the former box holders, and did nothing about changing the box numbers, or the locks or keys, but had them inspected by Mr. Agers to see that they operated. The North Shore Trust Company, former owner of the boxes, acquired them from the manufacturers on May 17, 1929. The Trust Company’s record and the receiver’s record, show that the particular box in question was rented only to H. 0. Huber and his wife, who held it from September 1, 1930, until the receiver closed it out on December 6,1934, shortly before it was sold to appellant in March 1935, after which, before appellee rented it, only one other person, Mrs. Clara P. Atkins, was the lessee. Both keys were turned in each time it was surrendered and the testimony of these holders shows that no one else had access to the keys and that no duplicate was made. During the time the keys were in the possession of the receivers they were kept in a special box kept locked the same as any other safety deposit box, and the guard key to the special box was kept in the receiver’s office. There was no mark on the cubicle or the door of appellee’s box which showed any tampering with it.

The bank used care in the selection of all of its employees. The only persons connected with the bank who had access to the safety deposit vault were the four officers of the bank above named, the five tellers, and the vault custodian, and their access could be had only under the circumstances and restrictions above related. Every one of them was known to Mr. Grant, the employing officer, for many years, with a good background and history, and each of them had been in the bank’s employ a long time. All of the employees who had access to the vault, except Mrs. Peterson, a savings teller, now a nonresident of the State, testified they knew nothing about appellee having any money in the vault, and knew-nothing about its disappearance. Mrs. Peterson had been employed through Mr. Appel, the president of the bank, for whom she worked at Wilmette for a number of years.

In a deposition by appellee on July 30,1942, he testified that Mr. Frantz acted as vault attendant upon the occasion of his visit to his box on July 1, 1941. At the trial he testified that Mr. Frantz was vault attendant on one occasion and he thought it was on July 1, 1941. All his vault tickets are made and initialled by Mr. Blasier, and Mr. Frantz testified that he was on his vacation on July 1, 1941; that he had verified it by the bank records, and that so far as he knew he never waited on appellee in the safety deposit vault. Some time in 1942, after appellee claimed the money was missing from his box, he saw Mr. Frantz in the Northwestern Railway Station, asked him his name and if he worked at the Highland Park bank.

Representatives of four other banks of Lake County testified to the manner in which their safety deposit vaults were operated. In three of them the safety deposit vaults are separate from that in which the bank’s funds are kept. One of the three has no day gate, and in two of them the customer’s key remains in the cubicle door while the customer takes his box to a booth. One of them observes the same practice as appellant as to signing and stamping entry tickets, protection with regard to custody of keys to unrented boxes, and changing locks on surrendered boxes. In one of them, where the safety deposit vault is separate from the bank vault, all the boxes were bought new, the customer must take his box to a booth, none of the bank’s property is kept in that vault, all locks are changed when a box is surrendered, and all officers and tellers must sign entry tickets when entering it. In the case where there is only one vault, and it is situated on the banking floor, the method of operation is very similar to that employed by appellant, except that no tellers’ carts are kept in the vault. These banks and these communities were fairly comparable in size and surroundings to appellant and the City of Highland Park. The practices of such banks is competent evidence on the question of ordinary care and diligence. (Bank of Grottoes v. Brown (C. C. A. 4th), 8 F. (2d) 321, 42 A. L. R. 1304.) The testimony on the part of appellant shows that it was conducting its safety deposit business with as much care and diligence as the banks in the surrounding communities. It gave the box holders ’ property the same protection that it gave its own funds. They were both kept in the same vault, in the same kind of container, vis; a safety deposit box, except the bank’s silver, which was kept in a separate chest. None of the boxes could be entered unless the vault custodian was present and used the guard key.

Inasmuch as there were no marks on the cubicle or the door of the box, it is obvious that the box was not entered by physical violence. The fact that the day gate was sometimes left unlocked for a few minutes in the morning, before the bank was open, while the tellers were taking their cash from their safes in the vault, during which time the vault custodian was taking their cabinets upstairs, does not tend to show that any of the tellers or anybody else could have entered any of the safety deposit boxes while the custodian was away from the vault, for the testimony shows that the guard key, without which no box could be opened, was in his personal possession. His possession thereof, at all times except when it was locked in the vault at night, also answers appellee’s contention that the failure to change locks on the boxes bought from the receiver of the North Shore Trust Company and on surrendered boxes, or to investigate the record of former box holders, constituted negligence on the part of appellant. So far as unauthorized duplicate keys are concerned, it is always possible that such keys exist, whether boxes are acquired second hand or are pur-' chased directly from the manufacturer. Appellee’s claim that appellant was negligent because the identity of the former owners of the boxes was not investigated and the locks and keys were not changed and because the employees of the three receivers of the North Shore Trust Company had access to the boxes and the keys, including the guard key before they were sold to appellant is without merit. Even if there were unauthorized duplicate keys, or if a former box holder was of ill repute, access to any of the deposit boxes could not be had except in the presence of the vault custodian, and the use of any unauthorized duplicate key would be impossible without his connivance. The boxes purchased by appellant from the receiver of the North Shore Trust Company were inspected for the bank by a regular service man, the locks were found to operate, and because of the guard key, were no more unsafe than new boxes bought directly from a manufacturer. The good reputation and long service record of the tellers entitled appellant to rely upon their honesty and integrity. That any of them might have had an unauthorized duplicate box holder’s key or a duplicate guard key was not within the realm of probability so as to put appellant upon notice requiring any inquiry or investigation in that line. No outsider had any access to the vault at any time with- „ out the presence of the vault custodian or one of the relief custodians.

The fact that the card index in the lobby of the vault was not locked does not tend to show negligence. It was in front of the vault door and it is not shown or claimed that the vault custodian could not see it at all times when the public was admitted to the lobby, even though he might be in the vault. It is not claimed that any unauthorized person ever looked into the card index or that knowledge of its contents, however, obtained, would enable or assist any unauthorized person to gain access to any deposit box.

The situation narrows to this: No unauthorized nonviolent entry into any safety deposit box was possible without the connivance and assistance of the vault custodian, with the use of the guard key. All that any bank can do to guard against such activity is to use care in the selection of its personnel. The custodian and the relief custodians in this case were selected with care. Mr. Grant, the employing officer, knew Mr. Blasier, the regular custodian, for 30 or 35 years, he knew Mr. Frantz from his childhood, and Mr. Glandt came out of high school into the bank’s bookkeeping department. Each of the two latter were 31 years old, and had been in the bank’s employ 15 and 13 years, respectively. Mr. Blasier had been employed by the ba.uk since 1917 or 1918 and had been vault custodian since 1924.

We are of the opinion that appellant overcame the prima facie case made by appellee, and fully established, not only that it used ordinary care and diligence to protect and keep safe the contents of appellee’s safety deposit box, but that it used the same care and diligence in so doing as it used to protect its own property, and that it was not guilty of any actionable negligence.

The verdict was against the manifest weight of the evidence, and the trial court erred in refusing to set it aside and grant a new trial. The judgment is reversed and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Culbertson

license: Public Domain

text:
    Joe Ziegler, Executor of Estate of August Emig, Deceased, Appellee, v. David Obernuefemann et al., Appellants.

      Opinion filed May 26, 1944.
    Lindauer & Lindauer, of Belleville, for appellants; Frank T. Plattner, of East St. Louis, for guardian ad litem.

    Johnson & Johnson, of Belleville, and Andrew O. Niehoff, of Carlyle, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of St. Clair county, declaring null and void and setting aside a certain deed executed by appellants, David Obernuefemann and Ida Obernuefemann, to their four sons, Henry Obernuefemann, Earl Obernuefemann, Bernard Obernuefemann and David Obernuefemann, Jr., three of such sons, Henry, Earl, and Bernard, having attained the age of 21 years, but the youngest son, David, being then a minor, of the age of 16 years.

A civil action in equity was instituted by plaintiff, Joe Ziegler, executor of the estate of August Emig, deceased, as a judgment creditor of defendants, David Obernuefemann and Ida Obernuefemann, his wife, to set aside the deed from said defendants to their sons, which deed conveyed a farm containing about 235 acres, in St. Clair county. The plaintiff’s testate, August Emig, had worked for defendant, David Obernuefemann, on the farm in question for many years prior to the death of Emig in November of 1940, and during that time became a creditor of his employer. After plaintiff’s appointment as executor, plaintiff made a demand upon defendant, David Obernuefemann, for payment of the debt, but payment was not made. The debt had existed for many years, part of it as long as 20 years. Six days after the demand, David Obernuefemann and his wife, Ida, conveyed the farm to their four sons for a recited consideration of “$1.00 actual consideration.” No revenue stamps were placed upon the deed. Each of the grantees was given an undivided one fourth interest. Plaintiff thereafter recovered judgment against the defendants, David and Ida Obernuefemann, and execution was issued' thereon and returned, “No property found.” After institution of this action, the cause was referred to the master in chancery upon the complaint and answers in such cause, and the master found in his report that the allegations of the complaint relating to the voluntary character of the transfer were well taken and recommended that a decree be entered setting such deed aside. The only objection filed by defendants was to the effect that the findings of the master that the conveyance was unreal and that it was made to hinder and delay creditors, and that there was no consideration for the transfer, are not supported by the evidence, and were contrary to law. Thereafter such objections were denied and stood as exceptions, and the exceptions were overruled by the court and a decree was entered approving the report, finding the material averments of the complaint were proven and true, and granting the relief prayed in the complaint.

The deed by which conveyance was made to the four sons was made subject to a public easement, and two certain mortgages on the premises, and also subject to unpaid taxes, which the grantees assumed and agreed to pay.

There was testimony to the effect that- three of the grantees, as they attained the age of 21 years, were induced by the father to remain on the farm and work for wages. That testimony was not clear and was somewhat inconsistent. The evidence does disclose, however, that there was no visible change in the possession of the farm after the date of the deed, but that the father and mother continued to live on the farm, and that the corn on the farm was fed to the father’s stock, subsequent to the transfer, and that no difference existed in the relationship after the transfer than from the relationship which existed prior thereto. The farm machinery which the father owned continued to be used by the sons after the conveyance. It is apparent that the testimony relating to the agreement between the three sons and the father, to the effect that the taking of the deed was in cancellation of an existing indebtedness with the father, which arose out of unpaid wages, was not given complete credence by the master, or by the court below. We are presented on review of this case with the question solely as to whether or not the decree and findings are manifestly contrary to the weight of the evidence below. It was the province of the master, in the first instance, to pass upon the credibility of the witnesses and his findings are entitled to due weight upon a review of the case (Fisher v. Burgiel, 382 Ill. 42, 53; Zarembski v. Zarembski, 382 Ill. 622, 632).

We have had occasion to consider a number of fraud cases in this court, and in such cases have outlined a distinction to be made in “fraud in fact” and “fraud in law” cases (Woodham v. Miller, 319 Ill. App. 388; Second Nat. Bank of Robinson v. Jones, 309 Ill. App. 358). We have stated therein that a debtor may prefer one creditor over others when he acts without fraud, even though he transfers all his property to the preferred creditor, leaving nothing to his other creditors to resort to, and that a mere suspicion arising out of the fact that the parties to the transaction are relatives is not enough, of itself, to set aside the conveyance in absence of proof of fraud (Woodham v. Miller, supra).

We have also indicated that fraud is not to be presumed, but must be established by plaintiff by convincing proof and by the greater weight of the evidence, and that the relationship of the parties is merely a circumstance which may excite suspicion, but will not alone and of itself amount to proof of fraud. We have, however, emphasized that voluntary conveyances or deeds made without consideration or for a mere nominal consideration, or not supported by a valuable consideration, are subject to being set aside by creditors and will be deemed to be fraudulent if the grantor at the time was heavily indebted (Second Nat. Bank of Robinson v. Jones, supra; Reisch v. Bowie, 367 Ill. 126, 132).

It has been established that where a voluntary conveyance runs from a parent to a child and results in hindering or delaying creditors it will be regarded as fraudulent in law irrespective of the honesty of the grantors motives (Reisch v. Bowie, supra), and that where an immediate member of a family is preferred as a creditor there must be clear and satisfactory proof of a valid and subsisting debt which will be enforced and payment exacted regardless of the fortune or misfortune of the debtor (Bartel v. Zimmerman, 293 Ill. 154, 163). Proof of fraud may be either direct or circumstantial. Agreements of a fraudulent character are not customarily made in the open and are usually secret in nature. As a result it frequently develops that while fraud may not be shown by direct evidence, yet proof of facts and circumstances may be shown from which a jury or a master, or judge, may rightfully infer the existence of the fraud charged. If a consideration of all the circumstances justifies the conclusion that the transaction was fraudulent, a finding that fraud existed is warranted even though there be no direct evidence (Zwick v. Catavenis, 331 Ill. 240, 248).

The Supreme Court of this State has also determined that even in fraud in fact cases a transfer of property must not only be made upon good consideration, but it must be bona fide and if a grantee knowingly assists in effecting the fraudulent intent, even though he only has notice thereof, he will be regarded as a participator in the fraud for the law never allows one man to assist in cheating another (Garlick v. Imgruet, 340 Ill. 136, 144; Second Nat. Bank of Robinson v. Jones, supra).

In the instant case the conveyance to the son who was a minor at the time was apparently clearly .voluntary in character. There was some evidence that other sons knew of the existence of the debt at. the time that they took the deed from their father. In any event the facts presented to the master, and to the court below, and a consideration of all of the evidence in the case would not justify this court in finding, on review, that the decree of the court entered herein is contrary to the manifest weight of the evidence. In view of the fact that the decree is obviously not contrary to the manifest weight of the evidence, such decree will be affirmed.

Decree affirmed.


author: Mr. Justice Bristow

text:
    Kolmar, Inc., Appellee, v. Thomas W. Moore, Appellant, and Monarch Distributing Company, Defendant.
    Opinion filed May 26, 1944.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant.

      Felsen & McMurdo, of East St. Louis, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal from a judgment of the city court of East St. Louis, denying the motion of Thomas W. Moore, defendant appellant, to vacate and set aside, as to him, a judgment by confession taken upon a promissory note, in the amount of $717.87.

This note was dated October 1, 1939, payable in 30 days after date to Kolmar, Incorporated, plaintiff 'appellee. It bore the signature of Monarch Distributing Company, by its president, and of T. W. Moore, assumed to be said Thomas W. Moore. Judgment by confession was entered November 22, 1939, and execution was issued on this judgment the same date. This judgment was against appellant and Monarch Distributing Company, a corporation, which made no effort, to vacate said judgment. The return on the execution by the deputy sheriff recited that it was served on appellant November 29, 1939. An alias execution was issued on this judgment and served upon appellant on April 22, 1941. On May 2, 1941, appellant filed his motion in said city court to set aside and vacate said judgment, which motion was accompanied by his affidavit in support thereof and a sworn answer to the complaint, which he proposed to file, if permitted. A counter affidavit was filed by a deputy sheriff stating that he did serve the original execution upon appellant. A counter affidavit was filed by a handwriting expert stating that in his opinion the signature to the note was the genuine signature of appellant. A counter affidavit of appellant was filed denying that he had been served with the original execution or ever knew of the note and judgment until April 22, 1941. An affidavit of appellant’s attorney was filed to the effect that delay in the disposing of the motion before the court after it was filed, was occasioned by delay of plaintiff’s attorneys. There was filed an affidavit of a Mr. Marks who referred to a business transaction he had had with defendant and who stated that, based on signatures of defendant in such business transaction, that the note bore the genuine signature of the defendant.

The affidavit of defendant attached to and made in support of Ms motion to the court to set aside, vacate or open the judgment, and also his verified answer, positively alleged that he was not indebted to plaintiff in any sum whatever, on any date; that he did not make, execute or deliver to plaintiff, or authorize any one on his behalf, to make, execute or deliver, the note in question. It alleged that he first learned on April 22, 1941, of the existence of the note, and that judgment had been rendered against him. It recited at length that he immediately consulted an attorney and with him examined the court records and copy of the note and that he and his attorney then went to the office of attorneys for plaintiff and there examined the original note. Defendant’s affidavit recited positively that the signature to the note was a forgery and that he immediately directed his attorney to take the proper steps to have the judgment vacated. The affidavit and verified answer each alleged a meritorious defense, that defendant would prove that he was not liable to plaintiff and that the note was a forgery.

Allegations of the affidavit and motion to vacate and the verified answer were each amply sufficient to satisfy legal requirements. They were filed in said cause May 2, 1941.

At the outset, it must be assumed that the statements in the affidavit, made under penalty of perjury, that the signature was a forgery, were true. The counter affidavits by the handwriting expert and witness are not proper for consideration. They go to the merits of the controversy; and not to the question of diligence or laches. In such proceeding as this, it would be improper to try the merits of the cause of action by affidavits and counter affidavits. Murphy v. Schoch, 135 Ill. App. 550; Hood v. Gehrs, 170 Ill. App. 230, 232; Stranak v. Tomasovic, 309 Ill. App. 177, 180-181.

In Handley v. Wilson, 242 Ill. App. 66, 68, the court, in considering a motion to vacate a judgment on the charge of forgery, said: £ ‘ This presented a vital question of fact which he was entitled to have tried and his motion should have been allowed.” In Stoner v. Millikin, 85 Ill. 218, 220, the court held that a judgment by confession against a defendant, based on a forgery, was unauthorized and was a nullity. To the same effect was Murphy v. Schoch, 135 Ill. App. 550, 553-554; Browning v. Spurrier, 245 Ill. App. 276. A forged note is absolutely void. Vannatta v. Lindley, 198 Ill. 40, 42. Allegation of forgery discloses a meritorious defense. Farmers Bank of North Henderson v. Stenfeldt, 258 Ill. App. 428.

Appellee contends that the return of the deputy sheriff stating that the original execution issued on the judgment was served on defendant November 29, 1939, must be conclusive that defendant then had notice of the judgment. Defendant filed his counter affidavit positively denying that any execution had been served upon him on that date.

Appellee cites Stasel v. American Home Security Corp., 279 Ill. App. 172. That case was a bill of review of a foreclosure proceeding in which the property had been sold. Complainants in the bill of review had notice of defaults against them after the decree for sale had been entered. Thereafter the premises were sold. Defendant testified that he did not receive the summons from the sheriff but from another person. He was bound to know that there was a pending suit against him.

In some cases a return of a summons by a sheriff cannot be impeached and thereby a judgment rendered void, by a mere denial by a defendant that a summons was served upon him, where third parties have acquired rights upon the faith of a return of service by a sheriff. Davis v. Dresback, 81 Ill. 393; Kochman v. O’Neill, 202 Ill. 110. In Linn v. Laramie State Bank of Chicago, 288 Ill. App. 98, 100, cited by appellee, not only did the deputy sheriff testify that he personally served the summons on the defendant, but an attorney also testified that the defendant appeared personally in his office with a copy of the summons.

But the question in the instant case is different. The validity of a judgment, based upon service of a summons by an officer as shown by his return, is not, here, sought to be impeached. The return is relied upon to establish the fact of delay and laches by appellant in instituting proceedings to secure a trial on the merits and his day in court. Here, no right of any third person has intervened. It is not here sought to set aside the return of the sheriff on the execution. The judgment is neither void or valid because an execution- was issued upon it and the return of service indorsed upon the execution. There is no showing here, of any injury to appellee, were the motion to vacate, allowed.

The question of a meritorious defense is of much more importance than the question of defendant’s diligence or lack of it. When a meritorious defense is shown, as here, the discretion of the court in considering a motion to vacate a judgment and to permit a trial upon the merits, should be liberal. Automatic Oil Heating Co. v. Lee, 296 Ill. App. 628, 632; Stranak v. Tomasovic, 309 Ill. App. 177, 181; Buchanan v. Stephens, 304 Ill. App. 477, 479-480.

Appellee further contends that appellant was guilty of laches and negligence in not pressing his motion for a hearing before the court. Had appellee desired an earlier hearing on the motion, it could have requested the court for same. It appears from the affidavit of appellant’s attorney that time and again he solicited appellee’s attorney to appear before the court but was delayed by the statement that another counsel of appellee must be consulted upon a time for hearing of the motion and that after many such evasive delays a hearing was finally had. Such delay therefore could not be charged as laches against appellant.

Courts of law exercise equitable jurisdiction over judgments entered by confession upon warrants of attorney. And it is necessary to justice that courts of law should liberally exercise that jurisdiction.

A meritorious defense is shown by the motion and affidavit in support thereof. We are of the opinion that diligence has been exercised by appellant and that he was not guilty of laches. Wherefore, the trial court in reasonable exercise of its discretion should have allowed said motion and it was in error in denying it.

This cause should be and hereby is reversed and remanded, with directions to enter proper orders opening up said judgment, permitting defendant to answer the complaint and make his defense to the claim, if he has any, and to have a trial upon the merits; the judgment to stand as security throughout said proceedings.

Reversed and remanded with directions.


text:
    Frederick Oren Dennis and Joseph Piland, Appellants, v. J. Edward Dennis, Appellee. In re Estate of Cora B. Dennis, Deceased.

      Opinion filed May 26, 1944.
    Pyle & McCallister, of Carmi, for appellants.
    Kern, Pearce & Pearce, of Carmi, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Everett Seymore Dennis of the Village of Crossville, White county, Illinois, died testate on the 31st of March 1941, leaving his widow, Cora B. Dennis, and two sons, Jacob Edward Dennis and Frederick Oren Dennis. In his will Dennis gave Jacob his stock in the Crossville bank, and the remainder of his estate was given to his .wife for life with the remainder in its entirety to his son Jacob. Frederick received nothing under this will. The Dennis estate was a substantial one, consisting of 1100 acres of land with 33 producing oil wells, considerable personal property, and more than $45,000 accumulated royalties emanating from the oil field.

On October 20, 1941, Cora B. Dennis filed in the office of the clerk of the county court of White county a renunciation in writing of her husband’s will, whereby she became the owner of one third of all personal property and of an undivided one-third interest in all the real estate of which E. S. Dennis died seized. Later, the widow, Cora B. Dennis, feeling keenly the injustice of her son Frederick being disinherited under his father’s will, made her will, leaving everything to her son Frederick. The language employed by her in doing so is as follows: “I am making this will fully conscious of the fact that I have another son, Jacob Edward Dennis, and I am giving him none of my estate by reason of the will of my deceased husband, favoring him to the exclusion of our son Frederick Oren, and it is my desire, as far as the power lies within me, to make up to our said son, Frederick Oren Dennis, the inequality created by the will of my deceased husband, their father.” Under this will Frederick was appointed executor to serve without bond.

The will of E. S. Dennis was admitted to probate on the 10th day of May 1941, and letters of administration on his estate with the will annexed were issued to Jacob E. Dennis on May 12,1941. Cora B. Dennis died on February 19,1943, and on March 22, 1943, Jacob E. Dennis filed in the,county court of White county his petition for his appointment as administrator of her estate. On the same day, the' will of Cora B. Dennis was filed, accompanied by the petition of Frederick that he be appointed executor, as provided in said will.

At the May term of the circuit court of White county, 1941, Frederick Dennis was convicted of assault with the intent to commit murder, and was committed to the Illinois penitentiary at Menard, Illinois. On March 22, 1943, the will of Cora B. Dennis was admitted to probate, and the court feeling that since Frederick had to be away from home for some time, he would not be a fit executor and denied his petition for his appointment.

On March 25, 1943, Frederick filed another petition asking the appointment of Joseph Piland as administrator of the estate of Cora Dennis with the will annexed. Judge Scott of Saline county was called in on April 8th to decide the controversy between Jacob and Frederick as to whose petition for the appointment of administrator should be allowed. The petition of Jacob was denied and the nominee of Frederick, Joseph Piland, was appointed, and letters of administration with will annexed were issued to him on April 29, 1943. From this action, Jacob appealed to the circuit court of White county. On a trial de novo, the circuit court on June 1, 1943, reversed the order of the county court and ordered the appointment of Jacob as administrator of the estate of Cora Dennis with the will annexed. The propriety of this order is presented to this court for determination on this appeal.

Upon the trial of this cause before the circuit court, Jacob Dennis testified as follows: that he had been administrator of his father’s estate for more than one year and nine months; that he had never rendered an accounting' to the county court; that prior to becoming administrator he had been conservator of his father; that he didn’t consider Joseph Piland qualified, although he admitted that he didn’t know much about him; that he was not aware of the fact that Piland owned his own farm and several properties in Cross-ville; that he didn’t think he had had any experience in handling securities and investments. Jacob further testified that he had been one of the cashiers of a bank, and for 19 years had been in the banking business.

That we may appreciate at the outset the reasoning that prompted the county and circuit courts to arrive at opposite conclusions, we will quote briefly from their pronouncements. Quoting from the order of the county court entered on the 24th day of April 1943: “That after the hearing of said evidence, and an examination of said exhibits, so presented in open court, and hearing the arguments of counsel, the court having considered the cause, finds that an Adversity of Interests exists between Jacob E. Dennis and Frederick Oren Dennis and that Frederick Oren Dennis is the sole devisee and legatee under the terms of the will of the said Cora B. Dennis, deceased, and that the said Jacob Edward Dennis now has in his hands substantially all of the assets belonging to the estate of Cora B. Dennis, holding said assets as administrator of the estate of E. S. Dennis, said E. S. Dennis having been the husband of Cora B. Dennis, who predeceased her.” The circuit court, in passing upon the merits of this issue, ordered that his remarks should stand as a part of the record. Quoting therefrom: “I have looked at the county court’s order. He found that the interests of the two brothers were so opposed to each other that he selected a stranger as administrator with the will annexed for the mother’s estate. I can’t bring myself to think they are opposed. The father had the right to make his will the way he wished, and the mother had the right to make her will the way she desired. The respective beneficiaries under the wills being brothers, this would not necessarily oppose, in the meaning of the term, because under the will, each take. That is all there is to it. And until the will is set aside or something, at least for the present remarks, we assume that each takes under the respective wills. As far as personal feelings are concerned, that is a different matter. I don’t see how we can say the interests are opposed or in conflict. ... So I can’t reconcile myself to the thought that there is such opposition of interests between these two brothers so far as the assets of the estates are concerned. There may be a great conflict as to the personal feelings, but when it comes to a conflict of the interests to be administered upon, I don’t see any conflict at all.”

There seems to be very little controversy as to the factual situation involved herein, and it might be added there is very little law in Illinois that definitely points out the answer to the legal questions presented.

It is conceded by counsel for both appellee and appellant that a nominee of one of a class entitled to appointment does not have the same standing as the one nominating him, and as against others of the same class is not favored. That is to say, the nominee of Frederick Dennis does not have the same standing as Frederick as against Frederick’s brother, Jacob Dennis. In the cases of In re Estate of Marco, 314 Ill. App. 560 and Justice v. Wilkins, 251 Ill. 13, the above proposition of law is clearly sustained. The appellee in their brief say in closing their argument, and referring to the two cases indicated above: “These two cases confront us as the leading, final and conclusive authority upon the issues here presented.”

The appellant concedes it to be the law that a nominee of one of a class has no claim to administer an estate as opposed to another member of that class, but contends that Jacob Edward Dennis is not qualified because of his hostile, adverse and conflicting interest which render him unsuitable. That was the issue argued and decided by both the county court and circuit court. The county court held that there was such a hostility between the two boys and such conflict of interest that a stranger ought to be appointed. The circuit court held, that even though there was a hostility of feeling between the boys, that such does not necessarily mean a conflict that should forbid the appointment of Jacob Edward.

The general rule laid down in Horner’s Probate, volume I, page 136; ‘ ‘Where several persons are claiming and are equally entitled to administer or to nominate an administrator a large discretion must necessarily be left to the court appointing, and if any choice is permitted by the statute, one who has a special interest opposed to the interests of the other heirs shall not be appointed.”

This rule seems to have support in the cases of Heward v. Slagle, 52 Ill. 336, and Justice v. Wilkins, 251 Ill. 13. At page 338 in the Slagle case the court said: “At the death of Dillon, Slagle became surviving partner, and should never have been appointed administrator on the estate, because, as such survivor, he became accountable to the- estate, and could not well account to himself as one of its representatives. There was a positive wrong done in so appointing him.”

In the Wilkins case a nominee of one of a class had been appointed and others of the same class were contesting the appointment. For reasons heretofore pointed out the court held the appointment bad, but said at page 17: “It is insisted by appellants that the present administrator, for several years before the death of Sea Bird Wilkins, had practically entire control of the property of the deceased. It is also insisted that he has not returned a proper inventory of the estate and that he has in his possession assets belonging to the estate. If the facts support these contentions, Demalian Justice is not a proper person to administer the estate.”

Volume I of A. L. R., page 1250, under heading, ‘ ‘ That one of the applicants has interests which might conflict with his duty is a reason against his appointment” the following cases are cited: Pickering v. Pendexter, 46 N. H. 69; Moore v. Moore, 12 N. C. 352; Spencer’s Estate, 7 Pa. Dist. R. 216; Davis v. Swearingen, 56 Ala. 539; Stines v. Brock, 185 Ill. App. 22.

In the cáse of Stines v. Brock, supra, a man and wife died leaving two daughters. The father’s estate consisted principally of a note of the husband of one of the daughters, and the mother’s estate consisted of only her share as widow in the estate of the husband, and the other daughter intended to file a claim against the mother’s estate for services rendered. The court held that it was proper to appoint one daughter administrator of the father’s estate so that she could see that the note was collected, and to appoint the other daughter administrator of the mother’s estate so that she could properly resist the claim of the sister.

In re Estate of Schmidt, 183 Pa. 129 there was a controversy over the appointment of an administrator for a deceased widow’s estate. It appeared that her two sons claimed that certain notes and certain certificates of deposit left by the father, or the proceeds thereof, belonged to one of the sons, while her two daughters claimed that the same were part of the mother’s estate, in which they had a share. That there was an unfriendly feeling between the brothers and sisters and their husbands, it was held that both the sons were disqualified to act as administrators and letters should be issued to a stranger rather than to deceased’s daughters.

In the case of In re Drews’ Appeal, 58 N. H. 319, 320-321, there was a violent quarrel between son and daughter, arising from the belief on his part that she had fraudulently obtained a mortgage from the intestate to secure unjust claims against the estate. The quarrel was so bitter that mutual complaints for arrest were made, and the feeling was so great as to disqualify either from fairly considering the claims of the other, and would probably lead to abuse of any power either might have over the other. Both were found, incapable of administering because of hostile feeling. The statute says that no person should be appointed who is "incapable.” This term includes unfitness and unsuitableness and a feeling of hostility so intense as to cause one to resist with physical violence the claims and rights of others, in common with him, not only renders him unfit for, but also incapable of managing the common interest. The claim of Sarah against the estate is disputed by the other heirs. The interest of her claim, and feeling engendered by the dispute, rendered her incapable of properly executing the trust. The law does not encourage a private or family feud. Neither of the contending parties should be intrusted with the power of administration, because there is reason to fear their animosity would lead to an abuse of the trust.

The case of Davis v. Swearingen, 56 Ala. 539, 541, the first estate has been long pending and unsettled, and the estate in question comes from that estate which was decedent’s father, and decedent’s son had failed within the proper time to make application as administrator, yet he is entitled to be appointed although he failed to act within the statutory time. This is his mother’s estate, and he is entitled to a preference over'the other claimant. The fact that the father of the third party claimant was the administrator of the estate which has been long’ pending and unsettled, and will have to account to the personal representative of the estate of his mother, is reason why he should not be appointed.

The English authorities seem to favor the view that the one having the greatest interest in the estate should be favored. Elwes v. Elwes, 2 Lee Eccl. Rep. (Eng.) 573.

The case of Clark v, Patterson, 214 Ill. 533, which is cited in appellant’s brief pertains to the right of a court to remove an executrix because of hostility of interest. The facts in the case are as follows. The decedent appointed two other executors besides Miss Patterson. Objections were made to her appointment. The proof showed that Miss Patterson had been the secretary of the decedent and had lived clandestinely with him for many years. It was alleged that this caused considerable ill feeling and jealousy between her and members of the family, and that because of her immorality the other representatives of the estate could not act with confidence and without restraint. It was also alleged that she had been given some property by the decedent that might be a subject of contest. The court held that this last charge was only vaguely made and not proven, and in addition held, “If the person nominated by a testator as executor of his last will be ‘legally competent,’ the court cannot on objection filed, cause an issue to be formed and enter upon an investigation of alleged moral delinquencies of such person and refuse to grant letters to a person whom the testator has chosen to manage his property and execute his will on the ground such person has been guilty of sexual immorality.” The issue in this case was the propriety of an order to remove, whereas, in the instant case it is what may be properly considered in making an appointment. The testator who made the appointment in the Patterson case, knew pretty well about the sins of his appointee, and notwithstanding such knowledge, charged her jointly with two others with the responsibility of administering his estate. We are of the opinion that this case affords little assistance with our problem.

Corpus Juris in volume 23, page 1047, states that unsuitableness to administer may consist in adverse interest of some kind, or hostility to those immediately interested in the estate whether as creditors or distributees, or of an interest adverse to the estate itself. It is apparent therefore in view of the foregoing authorities that the right to be appointed administrator is not an absolute one and the- question of fitness is proper to be considered.

In light of the principles of law outlined above let us consider the facts in this case. Jacob Dennis, apparently, has been highly favored in life. He inherited the brains, and possessed the energy and ambition to obtain a college education. He was industrious, honest and dependable and has had a highly successful career as a banker and business man. Frederick, on the other hand, was not so fortunate. His life seemingly has been beset with one failure after another. In the same degree that his brother has lived an honorable and successful life, Frederick has lived a dishonored and unsuccessful one. Not only did Jacob inherit all the brains and character, but when his father died, he inherited all the property. Frederick got nothing. Frederick’s mother, in an effort to compensate for this apparent injustice, renounced under the will- and made a will herself giving Frederick everything, and appointing him executor. But Frederick at the critical hour when he might have become executor was residing in the southern Illinois penitentiary at Menard, and could not serve. But Jacob, before he knew that his mother had left a will, rushed into county court to have himself appointed administrator, and then when he discovered there was a will, and that his brother Frederick could not serve as executor, wanted to be appointed administrator with the will annexed, and so petitioned the court.

That there was and is a very, very bitter and hostile feeling between the two brothers is an agreed fact. Frederick did not want Jacob to have anything to do with the estate his mother had left him. The mother did not want Jacob to have anything to do with her estate or have any part of it, else she would have said so in her will. Frederick wanted someone other than his brother to administer his mother’s estate, someone in whom he would have confidence, someone he could trust during his long period of absence. Frederick knew that his brother hated him; Frederick knew that his brother was selfish and avaricious, otherwise he would not persist in injecting his undesired presence in an estate from which he inherited nothing; Frederick knew that all of the estate of his father was still in the hands of his brother and that he had been collecting all of the rents from the thousand acres of land and all of the royalties from the 33 producing oil wells; Frederick knew that Jacob with little excuse and flimsy explanation had never made an accounting to his mother or the county court, and that he had been in control for about two years; Frederick knew that his mother in order to know the status of this vast estate, was required to file a petition in the county court to compel his brother to naake a report; Frederick knew that his mother had renounced his father’s will, and that, sometime sooner or later, his mother’s one-third interest would be carved out of his father’s estate, and that the part set off to his mother would be his under his mother’s will, and what remained would become the property of his brother. Frederick knew that he wanted a fair division, and that he would be better pleased if someone representing his interests would be present at the carving along with his brother, Jacob; Frederick further knew that if his mother’s estate was not watchfully and honestly protected by someone loyal to his interests while he was away, it might be greatly reduced in value; Frederick knew that the administrator’s fees in his mother’s estate would be substantial, and that he would prefer they be paid to someone other than Jacob. Consequently, Frederick was convinced that Jacob was the last person on earth that he wanted to see appointed to administer his mother’s estate. We cannot censure Frederick for having certain misgivings about the motives of his brother. A court may well consider the desirability of improving the relationship between these boys by appointing a competent disinterested representative of the estate, and thus contribute much toward terminating the discord, strife and “bad blood” that seems to prevail between the two. Toil as you may, your imagination could hardly manufacture a case where there is greater hostility, adversity and conflict of interest. It seems evident to us that Frederick’s nominee should be appointed as administrator with a will annexed in this case. No doubt, the circuit court, knowing his appointee to be a man of eminence, education and experience felt that he would serve faithfully and well but in view of the tremendous conflict of interest between Jacob and Frederick, we are compelled to hold that the appointment of Jacob Edward Dennis as administrator with a will annexed to the estate of Cora B. Dennis is improper and this cause is reversed and remanded to the circuit court of White county with directions that he appoint a nominee of Frederick Oren Dennis.

Reversed and remanded with directions.


author: Mr. Justice Stone

text:
    Lawrence E. Sprickerhoff, Appellee, v. Baltimore and Ohio Railroad Company, Appellant.

      Opinion filed May 26, 1944.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant; Frank J. Goebel, of Cincinnati, Ohio, of counsel.
    Jos. B. McGlynn, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

-This is a suit brought by Lawrence E. Sprickerhoff, plaintiff appellee (hereinafter designated as plaintiff) against the Baltimore and Ohio Railroad Company, defendant appellant (hereinafter designated as defendant), in the circuit court of St. Clair county, to recover damages suffered by .plaintiff on account of personal injuries sustained by him on April 12,1942, while he was employed as a yard, conductor in the yards of defendant at North Vernon, Indiana. The cause of action is based upon the Federal Employers’ Liability Act.

Plaintiff’s complaint consisted of one count. It alleged that defendant corporation operated a system of steam railroads through the states of Maryland, Pennsylvania, Ohio, Indiana, Illinois and other states and that one of the lines ran into the county of St. Clair, Illinois, where it maintained an office and agents upon whom service of process might be had, and that at the time of the accident, both plaintiff and defendant were engaged in interstate commerce, that defendant owned and operated one of its lines of railroad at North Vernon, Indiana. It further alleged that along the right of way and on the premises of defendant in the yards at North Vernon, and near what was known as the transfer track, there was a telegraph pole that had been permitted upon defendant’s premises for a long period of time, which pole, instead of being straight, leaned toward the track, and that for a long period prior to the accident defendant negligently permitted a large pile of debris to accumulate on its right of way and at the foot of said telegraph pole, so that the pile of debtis sloped toward and in close proximity to the transfer track, and that the cross ties under the rails of said transfer track and opposite the pole and pile of debris were old, worn, rotten and the ground under the ties and tracks soggy, which made said track unstable and permitted cars moving over it to lurch and sway. The complaint further charged that plaintiff, employed as yard conductor, while upon the side of a large furniture car, in order to operate a brake thereon, came in contact with the leaning telegraph pole due to its closeness to the overhanging furniture car, knocking plaintiff from the side of the car to the foot of the pole, where he fell upon the pile of debris and was thrown toward the rail of the transfer track in such a position that his left arm was run over by the trucks of the draft of cars, seriously injuring him.

Defendant’s answer admitted that at the time of the accident both of the parties were engaged in interstate commerce and that plaintiff’s action arose under the Federal Employers ’ Liability Act. It denied generally the allegations with reference to its negligence. Upon a trial before a jury, a verdict was returned finding defendant guilty and assessing plaintiff’s damages at $50,000. Motion for new trial was filed by defendant, and upon a remittitur of $20,000 being entered, the court entered judgment in favor of plaintiff in the sum of $30,000, from which judgment defendant prosecutes its appeal to this court.

The record discloses that in the yards of defendant at North Vernon there were two tracks running in an easterly and westerly direction, known as the B. & 0. main and the B. & 0. siding; that defendant maintained a track leading off in a northwesterly direction from the B. & 0. siding, which was known as the transfer track, used by defendant in delivering cars to the Pennsylvania railroad; that immediately south of the transfer track and on the right of way and premises of defendant was a telegraph pole, which instead of being straight, leaned toward the north and close to the transfer track, and that for a long period of time a large pile of debris had been permitted to accumulate on the right of way and at the foot of the telegraph pole, said pile of debris sloping toward and in close proximity to the said transfer track.

On the day of the accident, at about 1:30 in the afternoon, plaintiff, who was 52 years of age, and had been employed by defendant for nearly 30 years, and who at that time was conductor of the first track yard at North Vernon, was engaged in the switching of freight cars onto the transfer track. In the performance of his customary duties, plaintiff, on his way to set the brake on the top of a freight car described as Milwaukee car 271330, started up the ladder on the southeast corner of said car. It appears that it was a large steel car, more than 10 feet wide, and more than 3 inches wider than the next car on this cut of cars.

When plaintiff was near the top of the ladder the pole struck him on the left hip, knocking him between the cars. He fought his way out from between the cars, to keep from being cut to pieces under the wheels and threw himself on the pile of debris. It sloped back toward the tracks and in trying to catch himself, he threw his arm out, and the wheels ran over it and crushed it, necessitating amputation about 3 inches below the shoulder.

One other witness, Paul T. Snow, also a conductor in the employ of defendant, in addition to plaintiff himself testified on behalf of plaintiff. Defendant introduced no testimony.

In assigning as error, the action of the trial court in failing to grant defendant’s motion at the close of all of the testimony, to instruct the jury to return a verdict in its favor, defendant contends that there is no evidence as to how close the pole was to the track nor any proof as to the clearance between the car in question and this pole, and contends that the court should have granted the motion. Both plaintiff and the witness Snow testified to the closeness of the pole with reference to the track, but not in terms of feet or inches. The pole in question and the track was on the premises of defendant, and defendant alone was in possession of exact facts covering these measurements, if exact measurements in terms of feet or inches were necessary. Defendant introduced no testimony as to the clearance. Where the evidence to prove a fact is chiefly, if not entirely in control of the adverse party and such evidence is not produced, his failure to produce it tends to strengthen the probative force of the evidence given to establish such alleged fact. And the burden is upon such adverse party to produce that evidence before he can deny the fact. If he fails to produce it, a presumption arises in favor of the existence of the fact, for it will be assumed that he would produce it if it is in his favor. Belding v. Belding, 358 Ill. 216, 192 N. E. 917; Flannery v. Flannery, 320 Ill. App. 421; Mitchell v. Louisville & N. R. Co., 375 Ill. 545.

It is fundamental in the law, that it is the positive duty of the master to furnish his servant with reasonably safe instrumentalities wherewith and places wherein, to do his work. Chicago & N. W. R. Co. v. Swett, 45 Ill. 197; Bonato v. Peabody Coal Co., 248 Ill. 422; Stephen v. Duffy, 237 Ill. 549; Shoukair v. Sargent Co., 235 Ill. 509; Libby, McNeill & Libby v. Banks, 209 Ill. 109; Union Bridge Co. v. Teehan, 190 Ill. 374.

In the case of Chicago & N. W. R. Co. v. Swett, supra, at page 204, of the opinion, the Supreme Court said, “There is no rule better settled than this, that it is the duty of railroad, companies to keep their road and works, and all portions of the track in such repair and so watched and tended, as to insure the safety of all who may be lawfully upon them, whether passengers, or servants, or others. They are bound to furnish a safe road, and sufficient and safe machinery and cars.” And where a railroad company permits an obstruction, of which it has actual or constructive knowledge to remain, on, over or near its tracks, and by reason of such obstruction its servant is injured, the company is liable, whether the obstruction belongs to it, or is under the control of a third person. Devine v. Delano, 272 Ill. 166; Chicago & I. R. Co. v. Russell, 91 Ill. 298.

In the case of Harvey v. Texas & P. R. Co., 166 Fed. 385, the injured employee was riding in the course of his duties in one of defendant’s engines. A post, one of the supports of defendant’s roundhouse, was so near the tracks that the employee, required by his duties to lean from the cab of the engine, was caught between the post and the engine cab and crushed to death.

In applying the principle discussed above, the court found (page 392) that: “The record reveals-nothing to forbid the inference that the post could have been placed at a greater distance from the track and still have served the same purpose.”

After referring to numerous cases involving such obstructions, including telegraph poles, the court said, page 393: “It is not only the duty of the master to construct a safe plant or to have safe premises, but it is his duty to keep them safe. ' A structure too near the track may be permitted to stand for years without attracting attention until some unfortunate accident occurs. But this does not relieve the railroad company of the charge of negligence in so constructing the road or in permitting it to remain in a condition dangerous to the safety of the servant. Wood v. L. & N. R. R. Co., 88 Fed. 44. If a post is unnecessarily too near the track for safety, it should be moved. The fact that it is a part of a permanent structure may add to the expense of the change, but the question of cost is insignificant when weighed in the balance against peril to human life. ’ ’

In the case of Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, the facts were very similar to the facts in this case. There also, the question was whether or not the railroad was guilty of negligence in permitting a telegraph pole to be and remain so near the tracks as to injure an employee engaged in the performance of his duties. The evidence showed that the injured employee had previously passed by the pole, but at these times was on top of the cars. He did not know, however, that it was dangerously close. There was also evidence that on the day of the injury it was snowing and the visibility was not good on account of smoke from a nearby factory. For the reason that assumption of risk was then a defense, these facts were important.

On the question of defendant’s negligence, the court said, page 231: “In the case at bar the facts show that the telegraph pole, which caused the injury to the appellee, had stood where it was some four years and there is evidence tending to show that, besides the constructive notice implied from the length of time during which it had stood where it was, the appellant company had had actual notice of its dangerous proximity to the track, and to the cars passing on the track. The facts tend to show that the appellant company was guilty of negligence in permitting the telegraph or telephone pole to remain dangerously near the track for so long a time.”

In passing upon the proposition as to whether the lower court erred in denying defendant’s motion for a directed verdict at the close of all the evidence, plaintiff is entitled to the benefit of all the evidence favorable to him and all favorable inferences reasonably and naturally to be drawn from the evidence, in order to determine only if such evidence and inferences, if true, were sufficient to establish plaintiff’s case. Gunning v. Cooley, 281 U. S. 90, 74 L. Ed. 720, 50 Sup. Ct. 231; Tobin v. Pennsylvania R. Co. (App. D. C.), 100 F. (2d) 435; Huff v. Illinois Cent. R. Co., 362 Ill. 95; Walldren Express & Van Co. v. Krug, 291 Ill. 472.

We believe that upon the evidence, and all just inferences to be drawn from it, standing as it is uncontradicted by any evidence on the part of defendant, the jury could without acting unreasonably in the eye of the law, find that all the material averments of the complaint have been proven and that the court did not err in refusing to direct a verdict at the close of all the testimony.

Complaint is made that the court erred in admitting the testimony of- Paul T. Snow, to the effect that upon a previous occasion his coat brushed the pole in question, while on the side of a car, in passing on the transfer track. In their brief defendant says that this testimony is of no importance, so we can hardly hold that the admission of this testimony constituted reversible error.

It is alleged by defendant, that the trial court erred in refusing the instruction offered by defendant at the close of all of the evidence, to withdraw from the jury the allegations of negligence contained in subparagraph “c” of paragraph 5 of plaintiff’s complaint, which charged negligence on the part of defendant in permitting the pile of debris to accumulate near the track. Plaintiff’s testimony that the transfer track was bad, was not denied by defendant. We find it difficult to separate with meticulous precision the material contributing factors to plaintiff’s injury — the condition of the track, the telegraph pole, close to the track and leaning in that direction, and the pile of debris, close to and sloping toward the track. It. is extremely difficult from the very nature of the accident, to determine where one factor, left off and the other began, in the completing of the chain of causal events leading up to the injury complained of. When an injury proceeds from two causes operating together, the party putting in motion one of them is liable as if it were the sole cause. The negligent act of omission must be one of the essential causes, but need not be the sole cause nor the last or nearest cause. Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 49. We are of the opinion that the court did not err in refusing to withdraw from the jury the allegations of this subparagraph.

It is alleged as error that the trial court erred in giving to the jury each of the instructions given by the court, at the request of the plaintiff, and specific complaint is made of instruction No. 7, which reads as follows: The court instructs the jury that if you believe from the preponderance or greater weight of the evidence in this case that the defendant negligently and carelessly permitted the pile of debris in question to accumulate, and to remain along and upon or adjacent to, said transfer track in such a position that it was in such close proximity to the said transfer track so as to render said transfer track at said point, a hazardous and unsafe place for the employees of the defendant herein, particularly the plaintiff herein, while engaged in" their usual duties of work for the defendant, and if you further believe from the preponderance or greater weight of the evidence that the defendant knéw, or in the exercise of ordinary care could have known that the existence of said pile of debris, in such close proximity to the transfer track created a hazardous and unsafe place for the employees of said defendant, particularly the plaintiff herein, and if you further believe from a preponderance or greater weight of the evidence that the defendant permitted said pile of debris to accumulate and remain in such close proximity to the said transfer track, thereby creating a hazardous and unsafe place for the defendant’s employees, particularly the plaintiff herein, if from a preponderance or greater weight of the evidence you believe that such hazardous and unsafe place existed, and if you further believe by a preponderance or greater weight of the evidence that the existence of said pile of debris in question was the proximate cause of the plaintiff’s injury, if any, then you should find the defendant guilty.”

It is claimed that by this instruction, the jury were told that they could base liability upon the existence of the pile of debris alone. What we have said previously in this opinion, with reference to withdrawing from the jury the allegations contained in sub-paragraph “c” of paragraph 5 of plaintiff’s complaint, is applicable here, and we are inclined to the belief that this instruction was not erroneous.

Defendant contends that plaintiff’s instruction No. 5, given by the court is faulty in that it does not state the correct rule as to damages in this kind of a case, in omitting all reference to plaintiff’s contributory negligence. That instruction is as follows: “Ton are further instructed' that if you believe from a preponderance or greater weight of the evidence and under the instructions of the court in this case that the defendant was guilty of negligent conduct in one or more of the respects or charges made in plaintiff’s complaint, and that as a direct and proximate result and in consequence thereof plaintiff sustained injuries, then you should find the defendant guilty. ’ ’ The same objection is interposed as to instruction No. 8, given by the court at the request of plaintiff, which instruction is as follows: ‘ ‘ The court instructs the jury that if you find for the plaintiff you will be required to determine the amount of his damages. In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to and they should take into consideration all the facts and circumstances as proven by the preponderance or greater weight of the evidence before them; the nature and extent of plaintiff’s physical injuries resulting from the accident in question, if any, so far as the same are shown by the preponderance or greater weight of the evidence in this case; his suffering in body and mind, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as the jury may believe, from the preponderance or greater weight of the evidence before them in this case, he has sustained or will sustain by reason of such injuries; his loss of earnings and inability to work, if any, on account of such injuries; and may find for him such sums as in the judgment of the jury, under the preponderance or greater weight of the evidence and instructions of the court in this case, will be a fair compensation for the injuries he had sustained or will sustain, if any so far as such damages and injuries, if any, are claimed and alleged in the complaint and proven by the preponderance or greater weight of the evidence in the trial of this case. ’ ’

We are of the opinion that it was not error to leave the element of contributory negligence out of these two instructions, for it was not an issue in the case. Contributory negligence under the Federal Act is an affirmative defense and must be pleaded. Louisville & N. R. Co. v. Mount, 35 F. (2d) 634; Central Vermont R. Co. v. White, 238 U. S. 507; Sheehan v. Terminal R. Ass’n of St. Louis, 344 Mo. 586, 127 S. W. (2d) 657. Counsel for defendant in support of their contention that these two instructions are faulty, cite the cases of Houchens v. St. Louis, S. & P. R. Co., 221 Ill. App. 440 and Hupfer v. Payne, 223 Ill. App. 386, as being cases where similar instructions were held erroneous. In the Houchens case, it cannot be determined from the opinion whether or not the defense of contributory negligence was an issue therein. In the Hupfer case, however, it is stated that there were three pleas filed, the second of which averred contributory negligence on the part of the deceased. There the court in holding a similar instruction faulty, said, “There was evidence on the trial tending to show that deceased was guilty of contributory negligence. This instruction ignored this provision of the law, and in effect, withdrew the evidence bearing on the question of contributory negligence from the consideration of the jury on the question of damages. . . . We are aware that the giving of this instruction has been several times approved by courts of appeal in this State, but in those cases the state of the pleadings and the evidence differed entirely from the present case.”

In addition thereto, defendant’s instruction No. 5 told the jury that if they believed from the evidence plaintiff was guilty of negligence that contributed to his injury, he would not be entitled to recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the defendant bears to both defendant and plaintiff. Inasmuch as instructions are to be considered as a series and not singly; Bolle v. Chicago & N. W. R. Co., 258 Ill. App. 545; Donovan v. St. Joseph’s Home, 295 Ill. 125; and as this instruction correctly stated the law, with reference to contributory negligence under the Federal Act in this kind of case; sec. 3, Federal Employer’s Liability Act, see. 53, Title 45, USCA defendant’s instruction No. 5 would cure any possible fault in the two instructions complained of.

It is assigned as error that the trial court erred in overruling defendant’s motion for a new trial. This is not argued in the brief and will not be considered by this court. Cox v. Hrasky, 318 Ill. App. 287.

Defendant contends that the verdict was so high as to show passion and prejudice on the part of the jury, and that the judgment, with the remittitur, is also excessive. Plaintiff was 52 years of age and was earning nearly three thousand dollars a year. He lost his arm and the evidence tends to show that there is not enough of his arm left, to permit the use of an artificial arm. Railroading in the employ of defendant for nearly 30 years, he knows no other business or employment. In Bryant v. Illinois Cent. R. Co., 252 Ill. App. 428 a verdict of $35,000 was held not excessive for injuries to a railroad man, causing amputation of an arm and extreme physical and mental suffering, the plaintiff being 39 years of age and earning $2,400 a year and not familiar with any other occupation. While the judgment in the instant case, is large, we cannot say that it is excessive.

We find no reversible error in this record and the judgment of the circuit court of St. Clair county will be affirmed.

Affirmed.


text:
    Ernest Kingsley, Appellant, v. Amalgamated Meat Cutters and Butcher Workmen of North America Local Union No. 530, Appellee.

      Opinion filed May 26, 1944.
    Goldenhersh & Goldenhersh, of East St. Louis, for appellant.
    Farthing, Farthing & Feickert, of Belleville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action at law brought by Ernest Kingsley, appellant (hereinafter referred to as plaintiff) against Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 530, appellee (hereinafter referred to as defendant). In the trial court, the action was also against Frank Spaniel, president and manager of defendant Union. Motion to strike was allowed as to defendant Spaniel, and no appeal was taken from that order.

The action filed sought to recover damages against defendant because of plaintiff’s loss of employment caused by certain alleged activities on the part of defendant, as set forth in plaintiff’s complaint. Defendant Union filed a motion by its attorneys to dismiss as to it, and asked that the summons be quashed, and set forth as grounds for the motion, that it is a voluntary, unincorporated association and that jurisdiction cannot be acquired against it by name, but that all of its individual members must be made defendants and served with summons. The trial court allowed this motion and entered its order quashing the summons and dismissing the action as to this defendant. The appeal involves only the alleged error of the court in allowing the motion to quash the summons and dismissing the action as to defendant Union.

It is urged as error that the trial court erred in allowing defendant’s motion to dismiss for the reason that defendant Union is an entity and can sue and be sued as such and for the further reason that the motion was improper in that a plea to the jurisdiction must be pleaded in person and not by attorney.

On the proposition that the defendant Union is a legal entity and can sue and be sued, plaintiff rely chiefly on United Mine Workers of America v. Coronado Coal Co., 259 U. S. 344. That case, however, was a suit in the Federal court against several national trade unions, and authorized by section 7 of the Sherman Antitrust Law (USCA Title 15, sec. 7), which statute specifically includes “associations” among those who may be sued.

Plaintiff also cites Wade v. Grand Lodge Brotherhood of Railroad Trainman, 247 Ill. App. 532 and Wardlow v. Grand Lodge Brotherhood of Railroad Trainman, 245 Ill. App. 142, both of which are suits against fraternal benefit societies. The legislature has by statute made it lawful to sue fraternal societies by name. Ill. Rev. Stat. 1943, ch. 73, par. 894 et seq. [Jones Ill. Stats. Ann. 66.957]. Plaintiff also relied on the following cases, all of which were suits in equity or contempt proceedings arising therefrom; Maywood Farms Co. v. Milk Wagon Drivers’ Union of Chicago, Local 753, 316 Ill. App. 47, a contempt proceeding growing out of an injunction; Western-United Dairy Co. v. Nash, 293 Ill. App. 162, an injunction suit; Biller v. Egan, 290 Ill. App. 219, also an injunction suit. These decisions do not support a right to sue voluntary unincorporated associations at law for damages in Illinois. Plaintiff’s suit is in tort for damages and is an action at law, not based upon any statute.

At common law an unincorporated voluntary association, such as a labor union, cannot sue or be sued by its association name. It is neither a natural nor artificial person and has no legal existence separate and distinct from its individual members. Cahill v. Plumbers’ Gas & Steam Fitters’ & Helpers’ Local 93, 238 Ill. App. 123; Moskal v. New Era Commercial Ass’n, 228 Ill. App. 278; O’Connell v. Lamb, 63 Ill. App. 652; 5 C. J., p. 1365; 30 Encyclopedia of Law and Practice, p. 132; 27 A. L. R. 786.

The common law is still in force in this state, except as it has been modified or repealed by the legislative authority. Lasier v. Wright, 304 Ill. 130; Cahill v. Plumbers’ Gas & Steam Fitters’ & Helpers’ Local 93, supra.

In the Cahill case, at page 130, the court said: “It is the contention, however, of appellant that the common-law rule has been repealed by implication. The legislature has not enacted any statute which purports to repeal or modify the common law on this subject, as many other states have done. The effect of the argument of appellant is that at common law he cannot maintain his suit, and his whole contention in this case, to our minds, rests upon one question: Has the common law been repealed by implication? Chapter 28 of the Revised Statutes provides that the common law should be in force until repealed by legislative authority. It cannot be repealed by judicial decisions.”

We are of the opinion that the trial court ruled correctly in quashing the summons, and dismissing the action as to defendant.

It is further contended that the motion of defendant was improper in that a plea to the jurisdiction must be pleaded in person and not by attorney. That question was raised for the first time in this court. It is the settled rule of this court that a party will not be permitted to raise objections here which were not urged in the trial court. People v. Board of Com’rs of Cook County, 316 Ill. App. 621; People v. City Council of Chicago, 308 Ill. App. 284. Hence we do not feel called upon to discuss this point.

For the reasons above set forth the judgment of the circuit court of St. Clair county will be affirmed.

Affirmed.