author: Mr. Justice Riess

text:
    Charles Prickett, Administrator of Estate of Dale B. Prickett, Deceased, Appellant, v. City of Hillsboro, Appellee.
    Gen. No. 9,430.

      Opinion filed May 24, 1944.
    J. D. Wilson, of Nokomis, and Rolla Babcook, of Centralia, for appellant.
    Elbert W. Butler and Lester K. Vandever, both of Hillsboro, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

On December 16, 1942, plaintiff appellant Charles Priekett, administrator of the estate of Dale B. Prickett, deceased, filed a suit at law in the circuit court of Montgomery county against the defendant appellee, City of Hillsboro and one John Olroyd, since deceased, seeldng recovery of damages alleged to have been sustained by the next of kin of said Priekett under the provisions of the Illinois Injuries Act (ch. 70, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 38.01 et seq.\) as a proximate result of the wrongful conduct of the defendants. Defendant appellee filed motions to strike the amended complaint, consisting of seven counts and two additional counts numbered ten and eleven, which motions were allowed by the court. The plaintiff elected to stand by the complaint as amended and judgment was entered in favor of the City of Hillsboro and against the plaintiff administrator in bar of suit and for costs, from which judgment the "plaintiff has appealed to this court.

The first count of the amended complaint charged in substance that in 1918, the defendant, a municipal corporation, had purchased and owned a 263 acre tract of land located approximately two miles from the City of Hillsboro and had constructed and maintained thereon a dam and reservoir lake for a water supply and as a public park for the use and benefit of the inhabitants of the city, under and pursuant to the provisions of two enabling statutes concerning waterworks and public parks which acts are cited in the complaint ; that the water was used by the city for fire protection and was sold to its inhabitants; that small tracts of ground bordering on the reservoir lake were leased as cottage sites; that the city built a brick and concrete pavilion of 40 by 60 feet in dimensions on the bank of the lake, part of which pavilion was used for dancing, roller skating and other recreational activities, including therein a section leased as a concession or vending stand to one John Olroyd for the sale of soft drinks, ice cream, soda, popcorn and similar refreshments, from which sources and concession rentals some revenue was derived by the city; that a road leading from defendant city to said lake and pavilion was marked by pointer signs directing patrons, as invitees to whom the city owed the duty of due care in granting concessions at the pavilion and in seeing that concessionaires or persons in charge of the pavilion were trustworthy and would not wantonly and without cause assault, injure or kill invitees lawfully at said premises ; that the defendant city so leased said concession to Olroyd and placed him in possession or charge thereof and had renewed said lease on May 29,1942 for a period of one year for a rental of $200 with knowledge that Olroyd was of drunken habits and unbalanced mental condition, and that his conduct and mental disturbances and delusions, coupled with threats to assault, injure or kill persons and invitees without cause at times during a previous period of six months, was known or by exercising due care should have been known to the defendant city; that about 7:30 o ’clock on the morning of July 5, 1942, said Olroyd, while drunk and in an unbalanced state of mind, had reported to police of defendant city the alleged presence of men in the trees around the pavilion whom he would shoot and kill and asked that some officer be sent to the premises, when in fact no persons were in any such trees; that at 8:00 a. m., a city policeman came and found OIroyd with a loaded gun in his possession; that OIroyd was permitted to remain as concessionaire under said lease when the city knew or by due care would have known of his dangerous condition; that later at about 10:30 o’clock a. m., plaintiff’s intestate, a farmer boy aged 17 years, while swimming and on a float some distance out in said lake from the pavilion, was fatally shot by said OIroyd while in a drunken and insane condition, and died on the same day, resulting in damages to the next of kin, for the recovery of which suit was filed.

Count two contained substantially the same allegations and recited that the land was used for park purposes “for the use and benefit of the inhabitants of the City of Hillsboro.” The third count substantially realleges the allegations of the first count. Count four also realleges conditions recited in previous counts and charged that the city created and maintained a dangerous nuisance at the pavilion and premises on its land by keeping and retaining said OIroyd in his alleged condition and in inviting persons into a place of danger known to the city. Count five realleged the maintenance of the land and premises referred to outside of the corporate limits of said city for the use and benefit of its inhabitants under certain cited statutory provisions concerning Water Works and Public Park Acts for cities having a population of less than 15,000. Counts six and seven contain allegations similar in substance to those of the previous negligence counts. No counts numbered eight and nine appear in the amended complaint. Count ten recites in substance the ownership of the above tract of land and that the city maintained a park and constructed an artificial lake and swimming pool on the hanks thereof; that a certain pavilion and beach or bathhouse was used in connection with the park by patrons and invitees who paid for said privileges and was so constructed for the use and benefit of the inhabitants of the city and vicinity. Then follow recitals similar in substance to those set forth in the preceding counts and allegations -that by reason of the mental condition and dangerous propensities of said Olroyd “the said city then and there maintained a dangerous nuisance there at said park and swimming pool, in the maintaining and keeping the said John Olroyd there and permitting him . . . to be and remain there, as aforesaid,” and violated its duty to protect plaintiff’s intestate at said swimming pool, resulting in his injury and death and plaintiff’s damages as hereinabove recited. Plaintiff concluded in the alternative “That by reason of the premises the defendant, City of Hillsboro, became liable for the injuries complained of whether acting in its private capacity or governmental capacity.”

Count eleven, in addition to certain recitals of the previous counts, alleged that since said swimming pool has existed, the governing board thereof was required by statute to “provide proper protection to the public in the use of said swimming pool,” but citing no statute so providing; that the city may charge and collect reasonable fees for such use; that the city did not remove said John Olroyd and did not protect plaintiff’s intestate in the use of said swimming pool, which proximately resulted in his death and the resultant damages to his next of kin, as hereinabove set forth.

The defendant city interposed its motions to strike each and all of said counts and to dismiss the suit, which motions set forth in substance that it appeared from the face of the complaint as amended that the alleged injuries are shown to have occurred while plaintiff’s intestate was patronizing the municipal swimming pool which was maintained and operated by defendant city in its governmental capacity under legislative sanction and that the tortious injury by Olroyd, if any, as alleged in all counts, are shown by the factual recitals to have arisen out of an enterprise operated by the defendant city in its governmental capacity for which the city was not liable to respond in civil damages; that it appears from said counts that at the time of committing the wrongful act complained of, Olroyd was not acting within the actual or apparent scope of the provisions of any lease or agreement by and between himself and the defendant municipality, either as its officer, agent, employee or otherwise: that it clearly appears from factual recitals that defendant had no right or authority to conduct and did not conduct the pavilion or lake “for swimming purposes” as a private enterprise for profit and that the operation of said pavilion, lake and park for profit as a private enterprise, if so operated, would have been ultra vires; that the complaint seeks to hold defendant liable as an insurer against injuries occurring to patrons of the lake; that it appears from the recitals therein that the death of plaintiff’s intestate had no causal connection with the operation or maintenance of the lake or swimming facilities, or any act of an agent, employee, concessionaire or person having any authority or supervision over the lake or the swimming pool or patrons thereof.

Concerning additional counts ten and eleven, the motion substantially restates the above objections and also sets forth that there was no common law requirement for the city to provide police or physical protection to the public in connection with the use of the municipal lake as a swimming pool and that such allegation is improper; that no specific statutory provision is cited showing any alleged statutory duty of the city to furnish or insure personal police protection to patrons of the swimming pool, as required hy rule 13 of the Supreme Court; that the city is not an insurer against injuries occurring, to patrons at the swimming pool and that the complaint shows on its face that the occurrence complained of and resultant damages, if any, were not due to any failure to provide reasonably safe physical 'equipment or protection to patrons in the use of the swimming pool, nor does it show on its face that the late defendant Olroyd, in shooting the plaintiff’s intestate, was acting in the exercise of any ministerial authority or apparent authority or capacity as agent, employee, concessionaire or otherwise on behalf of the defendant; that no facts are alleged showing or justifying the conclusion that the city maintained a nuisance on said premises.

Errors are assigned by the defendant in granting motions to strike and dismiss the amended complaint and additional counts, in that the reference to certain allegations of other counts in the discussion of each amended or additional count constitutes a speaking demurrer and that defendant’s motions should have been overruled; in holding from the factual recitals of the complaint that the city was performing governmental functions and was therefore not liable to respond in damages for the torts of its officers, servants or agents; in not holding under the facts alleged that a dangerous nuisance was created and maintained on the city’s property endangering invitees by permitting the presence of Olroyd thereon; in not holding that the city in the management and leasing of the pavilion on its land to Olroyd, was acting in a ministerial and proprietary capacity; in dismissing the complaint and in rendering judgment in favor of the city and against the plaintiff for costs.

In passing upon motions to strike or dismiss pleadings under the provisions of the Illinois Civil Practice Act, the rule is well settled that the material allegations of fact, well pleaded, will be taken as admitted by the objector, but the conclusions of the pleader from such alleged facts are not deemed to be admitted. Therefore, in the discussion of alleged errors, the court, when considering the motions to strike or dismiss the complaint and each count thereof will, for the purpose of such motions, deem all material facts or allegations which are well pleaded to be so admitted but the conclusions of the pleader in relation thereto will not be so taken as admitted.

We hold that there is no merit in the contention of appellant that the motions of the defendant are objectionable as constituting speaking demurrers. No counter motion to strike the same or any portions thereof was filed. Various counts, by adopting numerous paragraphs of preceding counts, under the provisions of the present Civil Practice Act, not only adopted the factual recitals thereof but in some instances constituted alternative allegations. In view of the liberal construction of pleadings provided for in the present Practice Act, no prejudice appears to have resulted therefrom under the factual recitals of the complaint and we find no prejudicial error therein.

It is the primary contention of the defendant appellee that it appears from the factual recitals and allegations of the various counts of the complaint that the city was acting in a governmental capacity and not in a private or proprietary capacity in the conduct and maintenance of the park and swimming pool at the time of the commission of the wrongful act complained of.

It has been uniformly held in this State that a city or village is not liable for the tortious acts or omissions of its officers or agents, if committed while acting in a governmental capacity, unless such liability is expressly provided by statute. Gebhardt v. Village of La Grange Park, 354 Ill. 234, 188 N. E. 372; Craig v. City of Charleston, 180 Ill. 154, 54 N. E. 184; Roumbos v. City of Chicago, 332 Ill. 70, 81, 163 N. E. 361; Merrill v. City of Wheaton, 379 Ill. 504, 41 N. E. (2d) 508; Tollefson v. City of Ottawa, 228 Ill. 134, 81 N. E. 823; Evans v. City of Kankakee, 231 Ill. 223, 83 N. E. 223; Frazer v. City of Chicago, 186 Ill. 480, 57 N. E. 1055; Town of Odell v. Schroeder, 58 Ill. 353; Culver v. City of Streator, 130 Ill. 238, 22 N. E. 810.

A city may be liable to respond in damages when such negligent acts are committed by an officer or agent acting in a private or proprietary capacity and within the scope of his duties under the doctrine of respondeat superior. Roumbos v. City of Chicago, supra; Merrill v. City of Wheaton, supra; Petersen v. City of Gibson, 322 Ill. App. 97, 54 N. E. (2d) 79. The applicable rule in Illinois concerning the liability of a city in conducting public parks, playgrounds and municipal swimming pools maintained for the public benefit, as distinguished from their maintenance for proprietary or corporate profit, has been discussed and passed upon by our Supreme Court in the case of Gebhardt v. Village of La Grange Park, supra, under the facts therein presented and held to be that they are so maintained and operated as a governmental function and within the rule of governmental immunity from liability for tortious acts or omissions of their officers and agents. In that case, a municipal swimming pool was operated in a public park maintained by the village beyond its corporate limits under the provisions of specific legislative acts. One Charles Smith, by direction of the chairman of the park recreation board, used a village truck in conveying children to and from the swimming pool. During inclement weather, the chief of police of said' village directed Smith to use his own automobile instead of the village truck to convey the children to and from the swimming pool. On the afternoon of the day in question, while returning from the pool, Smith’s car negligently collided with another car and the defendant appellant was thereby injured. The court (p. 236) assumed from the facts so disclosed that the village was maintaining the swimming pool; that Smith was the agent of the village and that it was through his negligence that the injury occurred and thereupon discussed and passed upon the question of whether the maintenance of the swimming pool was a governmental or' a proprietary function. It was pointed out by the court that ‘ There is substantial contrariety of opinion in courts of last resort in this country on the question whether the maintenance of parks and playgrounds, swimming pools and the like, is a governmental function.” This language refers not to the particular act in question but to the holding of the courts in general concerning the operation and maintenance of parks, playgrounds and swimming pools by municipalities. Therein, the learned justice has cited at length numerous cases from various State jurisdictions holding opposite views on the above question and the Supreme Court adhered to the doctrine under the factual situation presented therein, that the maintenance of such public parks, playgrounds and swimming pool by the village was a governmental function and fell within the rule of law granting immunity to the municipality from civil liability for the torts of its officers or agents in the exercise of such governmental function, on the ground that the same affects general public health and recreational activities, the exercise of which powers is optional with a municipality. It is there said that the facts of each case determine the question of whether or not the municipality acts in a governmental or proprietary capacity; that such function in nowise partakes of the nature of a corporate business or undertaking for profit but is by its nature a public benefit; that the municipal purpose in providing such means of recreation and health differs widely from that found in conducting a business enterprise for private gain; that among the aims of government are those of fostering and promoting health, comfort, recreation and sanitary conditions for the benefit of the public, and unless specifically limited to certain classes of persons or to citizens of the village itself, such benefit extends to the public generally.

The municipal swimming pool in the instant case was operated and maintained for the use of the general public. The fact that a fee is charged for its use does not destroy its character as a public place of recreation and health. The courts so held in the La Grange Park case, supra; in South Park Com’rs v. Montgomery Ward & Co., 248 Ill. 299, 93 N. E. 910, and in the case of Carstens v. City of Wood River, 344 Ill. 319, 176 N. E. 266, which latter case involved a swimming pool and playgrounds not constructed and maintained under any specific act of the legislature but built with donated funds and operated by the municipality under the provisions of a city ordinance.

Under the factual situations presented in certain cited cases from foreign jurisdictions, the liability of municipalities for the negligent acts of its agents in the conduct of governmental functions has been asserted. While there is respectable authority for that contention, Illinois has not, either as a matter of principle or of public policy seen fit to adopt and apply the maxim of respondeat superior in that class of cases. When an officer or agent of a city is charged with a public duty or service, no action lies against the city for the negligent discharge of duties of a governmental nature, unless such right of action is expressly given, and the maxim respondeat superior has, therefore, no application. Dillon, 1st ed. sec. 774; Merrill v. City of Wheaton, 379 Ill. 504; Wilcox v. City of Chicago, 107 Ill. 334. In the latter case, wherein it was held that a city is not liable for the negligence of its officers or employees connected with the maintenance and operation of its fire department, it was said by the court concerning the nonliability of cities in that class of cases (p. 339) that “In favor of the doctrine, it may be that an additional, if not more satisfactory, reason for its adoption and rendering it an exception to the general rule may be found in public policy.”

In the case of Tollefson v. City of Ottawa, 228 Ill. 134, it was held that a city has power, under cited provisions of the Cities and Villages Act, to maintain a hospital, either as a charity or in the exercise of its police power, as a means to promote the general health and welfare, and in neither case is it liable under the doctrine of respondeat superior, for the negligent acts of the employees connected with the hospital; that a city does not possess power to maintain a hospital for revenue in its private or proprietary capacity and cannot be made liable for the negligence of persons employed about the hospital, even though the municipal authorities are unlawfully conducting the hospital for revenue.

Police regulations include ordinances passed for the purpose of securing the safety, welfare and good order of the public, and persons charged officially with the execution and enforcement of such ordinances are engaged in the performance of a public duty, and the city, under whose authority they act, is not liable for injuries negligently caused by them in the performance of such duties. Frazer v. City of Chicago, 186 Ill. 480; Roumbos v. City of Chicago, 332 Ill. 70; Town of Odell v. Schroeder, 58 Ill. 353; Craig v. City of Charleston, 180 Ill. 154.

In the case of Evans v. City of Kankakee, 231 Ill. 223, it was held that it is a proper exercise of the police power for a city to erect and maintain a jail, and it is not liable for the wrongful acts or negligence of its officers and employees in the management thereof or the detention therein of a person having small-pox, whereby persons living or working near such city jail contracted the disease.

The nonliability of a municipality for the tortious conduct of its officers or servants in the performance of a governmental function is further well illustrated by the case of Craig v. City of Charleston, supra, wherein a special policeman, upon a day when large numbers of vehicles and persons were present upon the streets, was appointed by the mayor to aid in the control of traffic. The officer, who was known to have been of a vicious, excitable and combative temperament, indulged in an altercation with another person during which he violently assaulted, struck and destroyed the eyesight of one eye of such person. The Supreme Court, in discussing the nonliability of the city for such tortious conduct of the special officer applied the rule of nonliability to the facts presented and as a matter of law denied the right of recovery to the injured party as against the city. The alleged negligent failure of the city to furnish proper and effective police protection against the negligent oí wrongful injury of its patrons while conducting a municipal swim-mining pool for the use of the general public is within the excercise of a governmental function whereunder no express statutory liability of the city for the negligent act of its officers or agents is created and therefore the maxim of respondeat superior has no application under the facts and circumstances presented and set forth in the various counts of the complaint herein.

We are further of the opinion that not only the weight of authority in this country, but likewise the better reasoning, followed by the courts of review of this State, supports the doctrine that in the absence of a statute imposing such liability, a city or village maintaining a municipal swimming pool and recreational grounds or park for the use and benefit of the public is not pecuniarily liable for the wrongful or negligent acts of commission or omission of its officers or servants in the discharge of their duty relating to that particular governmental function. The above rule concerning the maintenance and conduct of swimming pools and recreational grounds or parks is not confined alone td that branch of the public who reside within the city but applies equally to members of the public in general who may see fit, as invitees, to take advantage of or enjoy such privileges. Gebhardt v. Village of La Grange Park, 354 Ill. 234; Carstens v. City of Wood River, 344 Ill. 319.

Nothing in the condition of the lake or pool or its maintenance showing any negligent or unsafe condition of the physical properties connected with the park or its maintenance is alleged or shown to exist, nor do the factual conditions set forth, as we view them, state a cause of action based upon the pleader’s conclusion therefrom that the presence of Olroyd constituted a nuisance knowingly maintained by the City of Hillsboro. Craig v. City of Charleston, supra. In the latter case, the language of this court as reported in 78 Ill. App. 312 was adopted verbatim by the Supreme Court in affirming said opinion (180 Ill. 154, 156, 54 N. E. 184). The contention of appellant therein that the presence of the special traffic policeman of known dangerous propensities in directing public traffic on the street constituted an actionable nuisance and obstruction on the street was directly presented to and passed upon by both courts of review in the following language: “Appellant further contends that the placing of Apgar in the street and in control of it was the creation of a nuisance, upon which ground it is liable, —in fact, his chief contention is that he became thereby an obstruction in the street, — and cites a long list of authorities in support of the proposition that it is the duty of a city to keep its streets free from obstructions, and a failure in that regard will render it liable for injuries caused thereby. We cannot regard a human being in the exercise of police powers as an obstruction, in the sense contemplated by the unquestioned doctrine announced by those cases.” In the instant case, we likewise hold under the facts alleged, that the contention or conclusion of the plaintiff that the presence and known condition of Olroyd at his concession, followed by Ms wrongful acts as alleged, constituted actionable grounds against the city for the maintenance of a dangerous nuisance upon its premises, is without merit. The trial court properly sustained the motions striking the counts wMch undertook to charge the defendant with the maintenance of a nuisance proximately resulting in the alleged injuries and damages complained of. We further hold that the cited cases wherein the keeping of a vicious dog by an individual with knowledge of its dangerous propensities (Klatz v. Pfeffer, 333 Ill. 90) was held to create a right of action in an invitee injured by said dog, to be inapplicable to the facts and issues appearing herein; nor do we deem the doctrine announced in the cited Texas case (Wiggins v. City of Ft. Worth (Tex. Com. App.), 4 S. W. (2d) 761) wherein an eight year old child was injured by a dangerous bear which was insecurely confined in a municipal zoo, or the similar cited cases involving injuries by vicious and dangerous animals, to be applicable to or controlling under the factual situation presented in this case. Moreover, the doctrine adhered to in the Wiggins case, supra, insofar as it affects municipal liability, is not in accord with the rule adopted by the courts of Illinois.

Under the facts disclosed and well pleaded in the complaint as amended and the additional counts thereof, we hold that the trial court did not err in allowing the motions of defendant appellant to strike the complaint and in entering judgment against plaintiff in bar of suit and for costs.

Finding no reversible error in the record, the judgment of the circuit court of Montgomery county is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    C. E. Corporan, Appellant, v. Rudolph H. Brunkhorst et al. Harris Trust and Savings Bank, Appellee.
    Gen. No. 42,618.
    Opinion filed May 29, 1944.
    Sherman & Lewis and Robert R. Kahn, all of Chicago, for appellant; Irving S. Abrams, of Chicago, of counsel.
    Chapman & Cutler, of Chicago, for appellee; Dayton Ogden, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiff, C. E. Corporan, seeks to reverse an order of the Circuit court of Cook county which dismissed his petition for a citation against the Harris Trust and Savings Bank to discover assets.

Plaintiff brought • an action against Eudolph H. Brunkhorst, Harry H. Schoen and Hazen M. Pancost to recover on a written contract entered into between plaintiff and defendants for furnishing labor and material and for decorating certain premises situated at 7001 North Clark street, which were to be used by the Eogers Park State Bank which was then in process of being organized, but which organization was never completed. Plaintiff’s claim was for $1450 and $310 for extras, making a total of $1760. The work was completed but not paid for.

September 26," 1940, defendant Pancost was defaulted and judgment entered against him for $1760. January 5, 1942, the cause was dismissed as to Schoen and there was a trial before the court without a jury as to defendant Brunkhorst. The court found in favor of plaintiff and entered judgment for $1760. Afterward execution was issued, returned no property found, and no part satisfied. November 2,1942, plaintiff filed his petition to discover assets and a citation was issued against defendant Brunkhorst and the Harris Trust and Savings Bank. The matter was heard and the petition dismissed.

The record discloses that defendant Brunkhorst had been an employee of the bank for many years, retired in 1937 or 1938, and after he had severed his connection with the bank “The Board of Directors and Executive Committee have seen fit to give him a certain sum of money” payable in monthly installments. The Board of Directors passed a resolution authorizing the payment of money in monthly installments. The minutes of the Executive Committee of the bank of September 27, 1938, recite that Brunkhorst had been with the bank since 1912 ‘ and has made a very distinct contribution tq our organization;” that he suffered a break in his health in 1937, as a result of which he has since been performing only nominal duties; that in consideration of his loyal and efficient services, “Mr. Pen-ton and the Managing Committee” agreed to continue his salary for another year but Mr. Brunkhorst had decided to retire and “Upon recommendation of the management, the Executive Committee approved that Mr. Brunkhorst be advised at this time that for the year 1939 he will be paid a monthly retirement allowance or pension at the rate of $6,000 per annum, which will give him an opportunity to develop some income from his insurance business” and that assuming that the relations were thereafter satisfactory and dependent upon current conditions, an amount to be determined from time to time by the Executive Committee would be paid to him but not exceeding $5,000 per annum. After this resolution other resolutions were passed apparently every year and on December 9,1941, the following resolution was approved by the Executive Committee of the bank: “Upon recommendation of Mr. F. R. Elliott the Executive Committee approved the payment of a $5,000 retirement allowance to Mr. Brunkhorst during the ensuing year in equal monthly instalments. The Secretary was directed to bring the subject up for reconsideration next December.”

The evidence shows that after this resolution was approved, Brunkhorst was given $417 monthly for 10 months of the year. No money was given to him for the months of November or December because of the fact that the bank had been served with the citation. As we understand it, this resolution is the basis for plaintiff’s contention that the court erred in dismissing the petition, and that plaintiff should have recovered the $417 withheld by the bank for the months of November and December.

Counsel for plaintiff’s position is that Brunkhorst could have compelled the bank to pay him for the 2 months and from this it follows that plaintiff occupies a similar position in the proceedings at bar. We are unable to agree that defendant Brunkhorst could have maintained an action against the bank to recover the moneys which the bank agreed to give him for the months of November and December. We think the record discloses that what the bank gave Brunkhorst was a gratuity and could have been stopped by the bank at any time without liability. Shear Co. v. Harrington (Tex. Civ. App.), 266 S. W. 554.

The order of the Circuit court of Cook county is affirmed.

Order affirmed.

Niemeyer and Matchett, JJ., concur.


text:
    Herman S. Strauss, Trustee, Appellant, v. Philip A. Danielson, Appellee.
    Gen. No. 42,661.
    Opinion filed May 29, 1944.
    Rehearing denied June 12, 1944.
    Richard Weinberger, of Chicago, for appellant.
    Wilhartz & Hirsch, of Chicago, for appellee; Samuel E. Hirsch, Julian H. Levi and William Ruger, all of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiff seeks to reverse a decree entered by the Superior court of Cook county dismissing his complaint for want of equity.

Plaintiff brought suit against defendant to recover on a written guaranty dated March 15, 1927, whereby defendant guaranteed the payment of a bond issue of $430,000, the payment of which was secured by a trust deed on the Homestead Hotel, located in Evanston, and by a chattel mortgage on the furnishings of the hotel. In a foreclosure proceeding a decree was entered January 26, 1932, in which it was found there was due and unpaid to the bondholders $397,500, and in addition, the foreclosure fees and expenses, making a total of $414,631.52. The property was sold under the decree on January 30, 1934 to the nominee of the bondholders’ protective committee for $50,000. The master in his report of sale found there was available for distribution, $47,129.35, leaving a deficiency of $393,299.12. Objections filed to the master’s report of sale were overruled and April. 27, 1934, a deficiency decree was entered for the amount of the deficiency.

The record discloses that in 1927 defendant, Philip A. Danielson, an architect, designed a building project known as the Homestead, to be constructed in Evans-ton and then negotiated with Strauss Brothers Company, mortgage Underwriters, for the making of a $430,000 loan for the construction of the Homestead. The Homestead' Building Corporation was formed in which defendant owned a substantial amount of the stock. The building corporation executed a temporary bond to the Strauss Brothers Company for the $430,-000 and March 15, 1927, the corporation executed its trust deed to secure the payment of the temporary bond and the permanent bonds when issued. Contemporaneously with the making of the trust deed, defendant executed' the guaranty which is the basis of the suit at bar, by the terms of which he unconditionally guaranteed to pay to Herman S. Strauss, Trustee, and to the “holder or holders from time to time of those certain permanent definitive coupon bonds” aggregating $430,000 executed by the Homestead Building Corporation and secured by trust deed of the same date to Herman S. Strauss, Trustee, and to his successors in trust “for the benefit of the holder or holders from time to time of said certain coupon bonds and of the coupons thereto attached, and of the holder or holders from time to time of the temporary bond hereinafter described.” The guaranty further provided “that this Guaranty shall be independent of and in addition to the rights and remedies of the said Trustee and of the respective holders of said bonds . . . and all remedies against the undersigned shall be concurrent with and not exclusive of any proceeding or remedies instituted or availed of by the bondholders or the Trustee.” The undertaking was an original undertaking and not conditioned on the failure of the mortgagor to pay.

After the guaranty was executed it was suggested that the guaranty be endorsed on the face of the permanent bonds so as to make them salable to the public, which was accordingly done. Some payments were made on the bonds as they fell due but prior to 1932 default was made and a bondholders’ committee was formed by a substantial majority of the outstanding bondholders and in March, 1933, defendant submitted to the committee a proposed plan for reorganization of the Homestead Corporation, and a liquidating trust to operate and liquidate the property was formed. About 90 per cent of the bondholders agreed to the plan and it was approved by a decree entered in the foreclosure proceedings and the non-depositing bondholders were given a year within which they might deposit their bonds and accept the plan. The property was operated and the matters necessary to carry out the plan were followed and a number of the non-depositing bondholders accepted the provisions of the decree until all but about 5 per cent of the bondholders had deposited their bonds.

We think it unnecessary to detail here all that was done after the deficiency decree was entered. The chancellor in deciding the case said: “In 1933 and 1934 we know that there was a great depression. It was utterly impossible to procure a bona fide purchaser, or rather a purchaser who really intended to acquire title at a foreclosure sale of property of this character. Hence there was only one thing for the bondholders’ committees to do, . . . and that was to endeavor to consummate a plan of reorganization which would contemplate acquisition of the interest of all of the subordinate interests and then proceed to a sale of the property at which the nominee of the committee would acquire the title at a price which would make it advantageous to any non-depositing bondholder to come into the plan of reorganization. It was not intended that it should be a fair price. It would have been unfair to the depositing bondholders who made possible by their cooperation the consummation of a plan of reorganization that any attempt should have been made by the bondholders’ committee to actually fix a price that would represent the fair value of the property. If they did that the non-depositing bondholders who did not cooperate and who did not work with the committee, who did not engage lawyers, who did not pay for the lawyers, — those non-depositing bondholders would walk off with the cash while the depositing bondholders would have to get what they could through participation in the plan of reorganization.

“Now, while in a sense that would have resulted in those non-depositing bondholders who remained obdurate and refused to go along with the depositing bondholders, while it would have been unfair to them in one sense, that unfairness was completely obviated by the bondholders’ committee submitting themselves to the jurisdiction of the court and saying to the court, ‘If there is anything not fair about the way we are treating the non-depositing bondholders, let them come into this plan of reorganization even at this belated date, and let them have one year in which to do it.’

“Now, that was the plan which was finally worked out in our state courts, as I know because I practiced in chancery in these courts and as every chancellor who went through that period of depression well knows. To hold that the sale price at such a foreclosure sale, procured by cooperation of the bondholders with the committee, would equitably represent a basis on which the owner of the equity could be held liable on a guaranty, shocks one’s sense of equity. The result would be that these bondholders who had waited, who had participated in what was obviously a very good plan of reorganization for them, who got $115 for every $100 bond, could now, if we allow that theory to stand, claim from the equity owner the difference between the nominal amount distributable from the proceeds of the foreclosure sale and the full amount of the guaranty. No court of equity could follow that kind of a principle, and none of the cases require me to do it. . . .

“Mr. Weinberger [counsel for plaintiff]: Does that order also apply to any non-depositing bondholders who received substantially ten cents on their bonds'?

“The Court: The order applies to all. The case was tried before me on one theory, and that was that the sale price at the foreclosure sale represented the basis on which the liability under the guaranty could be determined. ... — the case both on the pleadings filed by the trustee complainant and on the trial is based entirely on the one theory, and that is that the deficiency decree determined the amount of damages. Now, let there be a general order of dismissal for want of equity.”

In a foreclosure suit coupled with a reorganization plan which was approved by our Supreme court in First National Bank v. Bryn Mawr Building Corp., 365 Ill. 409, objection was made by non-depositing bondholders to the confirmation of the master’s report of sale. One of the objections urged was “that the property was sold for a grossly inadequate sum and as the result of a plan or fraudulent device which deprived the non-depositing bondholders of their property without due process of law. ...

“Where, as here, the sale of the property on foreclosure is a step in a re-organization project, which project the bondholders have an absolute right to engage in if it be a fair plan, it is difficult to see how a court of equity could fairly and adequately consider the approval of the foreclosure sale without also considering the re-organization plan. . . . Whether the sale price is adequate or inadequate may depend upon the plan of re-organization open to all bondholders.” The court then discussed the plan and continuing said: “No one is required to join the depositing committee. The sale has been decreed, and all who do not desire to join the plan may take their share of the proceeds in cash.” The court then considered the fairness of the proposed plan and that the bid, as a part of it, must be considered. The court held both were fair and were approved, and continuing said: “Equity will not concern itself, however, with the relationship of the depositing bondholders to the plan. Presumably they are all capable of contracting, and they have done so. . . . The court is concerned with the fairness of the bid as to those bondholders who have not adopted the plan. In this it must be borne in mind, however, that non-depositing bondholders are not to be aided in an effort to create a maneuvering value for their bonds or give them a nuisance value by attempting to obstruct re-organization.”

In the instant case, following the reasoning of the court, we think the depositing bondholders are not entitled to any relief. “Presumably they are all capable of contracting, and they have done so.” They deposited their bonds, received certificates of interest and for a number of years have been paid the proceeds derived from the operation of the property, and in addition, the property was afterward sold for $292,500 which was distributed to the owners of the preferred certificates of interest, which they would not have received but for the adoption and approval of the plan. The total distribution to certificate holders per unit was $114.26.- This was not the full amount that would be due on the bonds with interest. In these circumstances they ought not now be permitted to say that they still have a right to recover on the guaranty. But we are of opinion that this cannot be said as to the non-depositing bondholders. They refused to take part in the plan. So far as we are advised, not a word was said in the foreclosure proceeding or in the plan approved, about the guaranty which is the basis of the suit before us. Objections to the approval of the sale of the premises for $50,000 were overruled and the deficiency decree entered. In these circumstances we think the non-depositing bondholders are entitled to be paid the amounts which are due and unpaid on the bonds held by them respectively, which counsel for plaintiff says are of the face value of $12,800.

Counsel for defendant further say that “Upon the execution by defendant of his guaranty on the bonds in substitution for the guaranty sued on herein, plaintiff lost all right to enforce the guaranty in suit.” We think this contention cannot be sustained. We have above quoted from the provisions of the guaranty in suit from which it clearly appears that there was no substitution of this guaranty for the one that was on the face of each bond.

The decree of the Superior court of Cook county is affirmed except as to the non-depositing bondholders and as to them it is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

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

Niemeyer and Matchett, JJ., concur.


text:
    Irving Breitowich, Also Known as Irwin Breit, for use of Margaret Tharp, Appellant, v. Standard Process Corporation, Appellee.
    Gen. No. 42,718.
    Opinion filed May 29, 1944.
    Rehearing denied June 12, 1944.
    Irving Breakstone, of Chicago, for certain appellant.

      Edward S. King, of Chicago, for certain appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiff seeks to reverse an order of the superior court of Cook county discharging defendant, garnishee.

The record discloses that Margaret Tharp brought an action against Irving Breitowieh and his father to recover damages for personal injuries claimed to have been sustained by her as a result of the negligence of Irving Breitowieh in driving an automobile which struck and injured her. The father was dismissed out of the case. Defendant Irving Breitowieh filed his answer and several months thereafter the case was called for trial and the judgment of the court recites that personal service was had on Irving; that he was called three times in court but made default and his default was entered of record “for want of any pleadings” and a jury impaneled to assess the damages. The judgment order further shows the jury were impaneled and sworn to assess plaintiff’s damages, and after hearing the evidence adduced by plaintiff, returned their verdict: “We the jury find the defendant Irving Breitowieh guilty and assess the plaintiff’s damages at the sum of $10,000.00.” The judgment was entered on the verdict and an execution awarded. Afterward an execution was issued, served on Irving and returned no property found and no part satisfied.

Afterward an affidavit for garnishment and interrogatories were filed and the Standard Process Corporation was served as garnishee. It answered that it was in debt to Irving for $89.65. Irving filed his interplea setting up that after the judgment was entered against him he filed a petition in the United States District Court in Chicago to be adjudged a bankrupt and scheduled the judgment as the only indebtedness and that afterward he was discharged. An answer was filed to the interplea and on March 23,1943, the order appealed from was entered. It recites that the matter came on to be heard on the motion of Irving Breitowich to dismiss the garnishment proceedings; that the motion was supported by sworn interplea and all parties notified and after argument of counsel for all the parties, the court found that Irving had filed the petition in the United States District Court, scheduled the judgment as above stated and that he was discharged. And it was ordered and adjudged that the discharge in bankruptcy ‘ relieved him of any further liability on the judgment . . . said judgment did not come within any of the exceptions employed in Section 17 of the Federal Bankruptcy Act. ’ ’ It was further ordered that the garnishee be discharged and the proceedings dismissed.

Counsel for both parties agree that the only question for decision is whether the judgment rendered in the personal injury case against Irving was “for wilful, wanton, and malicious injury to the person” within the meaning of Section 17 of the National Bankruptcy Act, and counsel further agree that this must be determined by whether the complaint in the personal injury ease “setup a wilful and wanton count. ’ ’

Counsel for plaintiff says “The complaint . . . states a cause of action upon wilful and wanton conduct ’ ’ while on the other side counsel for Irving Breitowich contends that “The ex parte judgment, upon which the supplemental garnishment proceeding is based is not one for a wilful and malicious injury to the plaintiff. ’ ’ There was no special interrogatory submitted to the jury and the verdict was general, as above quoted.

The substance of the allegations of the complaint, so far as it is necessary to state here is that on October 25, 1938, plaintiff, who was at the southwest corner of LaSalle street, a north and south street, and Chicago avenue, an east and west street, in Chicago, was walking north across Chicago avenue with the green light in her favor; that defendant was driving an automobile east in Chicago avenue, with the red against him, and negligently and carelessly drove the automobile through the red light and struck and injured plaintiff. That it was the duty of defendant to operate the automobile “so as not to wantonly or maliciously or wilfully injure plaintiff, a pedestrian” yet the defendant, not regarding his duty “in that behalf, wantonly, wilfully, and without regard for the safety of the plaintiff” ran the automobile “without heeding the certain traffic signal then and there set against” him “and as a result thereof struck the plaintiff with great force and violence” etc.

We think the allegations were sufficient to charge defendant with wanton misconduct. Reell v. Central Ill. Electric & Gas Co., 317 Ill. App. 106; In re Greene, 87 F. (2d) 951. In the Reell case judgment was entered in a personal injury case where defendant was charged with wilful and wanton misconduct in driving an automobile which struck and injured plaintiff. There was a general verdict in plaintiff’s favor for $2,500. Afterward garnishment proceedings were brought and the defense interposed was that the judgment debtor was discharged' in a bankruptcy proceeding, but the court in speaking by Mr. Justice Dove, held that the judgment in a personal injury suit was predicated upon wanton, wilful and malicious conduct of the defendant and therefore under the terms of Section 17 of the Bankruptcy Act Reell was not released from liability. The court in its opinion cites with approval In re Greene, 87 F. (2d) 951 and a number of other authorities.

As we pointed out in Schoenbacher v. Kadetsky, 290 Ill. App. 28, there is a distinction between the terms “wilful” and “wanton” as used in such cases. We there said: “The term ‘wilful’ . . . implies intent or purpose, while the term ‘wanton expresses a reckless disregard of consequences. Trucking Co. v. Fairchild, 128 Ohio St. 519.”

We hold the allegations of the complaint were sufficient to charge defendant with such wanton misconduct as implies a reckless disregard of consequences, that malice, within the meaning of our law, is the gist of the charge and that under the terms of Section 17 of the Bankruptcy Act, Breitowieh was not released by the judgment entered in that proceeding.

The order of the superior court of Cook county discharging the garnishee is reversed and the matter remanded. '

Reversed and remanded.

Niemeyer and Matchett, JJ., concur.


author: Mr. Justice Matchett

text:
    Charlie J. Biedler and Edward Biedler, Appellees, v. Rudolph Malz and Eric Malz, Copartners, Trading as Dutch Dairy, Appellants. Rudolph Malz and Eric Malz, Copartners, Trading as Dutch Dairy, Appellants, v. Charles J. Biedler and Edward Biedler, Appellees.
    Gen. No. 42,992.
    Opinion filed May 29, 1944.
    S. R. Pulaski, of Chicago, and E. C. Frank Meier, for appellants.

      F. J. Karasek, of Chicago, for appellees; K. B. Czarnecki, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Rudolph and Eric Malz, copartners as the Dutch Dairy, appeal from an order entered November 30, 1943, whereby a judgment in their favor on their counterclaim, for $4,500, entered by default on October 1, 1943, was set aside and the counterclaim dismissed without prejudice.

The suit in which they were defendants was begun by attachment July 10,1943. (See Ill. Rev. Stat. 1943, ch. 11, pp. 160-165 [Jones Ill. Stats. Ann. 109.032 et seq.~\.) Plaintiffs, Charlie J. and Edward Biedler, on that day filed an affidavit alleging defendants were indebted to them under a written contract in the sum of $11,958.74; that defendants were about to fraudulently remove their property from the state, etc.; and prayed an attachment. They secured ex parte an order that the attachment issue upon their filing bond in the sum of $3,000. It issued. Defendants were served, also the Lake View Trust & Savings Bank, as garnishee, thus tying up defendants’ bank account and safety deposit boxes. Numerous orders were entered by numerous judges. A motion by defendants to dismiss the attachment was denied. On their motion another order was entered releasing a part of the funds attached. Other orders struck the affidavit for attachment, quashed the attachment writ and garnishee summons and dismissed plaintiffs’ suit.

Defendants attached to their affidavit traversing plaintiffs’ affidavit for attachment an alleged counterclaim, demanding damages from plaintiffs on the theory the suit begun by them was brought without probable cause and Avith malicious intention. Defendants obtained a default on this counterclaim and on an ea7 parte trial a finding in their favor with damages assessed at the sum of $4,500, with judgment thereon, and a special finding that malice was the gist of the counterclaim action. The order of default was entered September 8, 1943. The judgment was entered on October 1, 1943.

October 14, 1943, plaintiffs made a motion to vacate the order dismissing the attachment, set aside the order of default and the judgment in favor of the counterclaimants and reinstate the main action. The trial court denied these motions except as to the judgment on the counterclaim, confirmed' the dismissal of plaintiffs’ action, vacated the judgment on the counterclaim, and of its own motion struck the counterclaim and dismissed the action on it without prejudice to the rights of defendants. Defendants appeal from that part of the order relating to the counterclaim. Plaintiffs do not complain.

We hold the order striking defendants’ counterclaim was proper because the action stated therein would not from its nature arise until the termination of the attachment suit favorably to defendants. Am. Jur., Vol. 5, § 1020, p. 218; Spaids v. Barrett, 57 Ill. 289; Atkins v. Swope, 38 Ark. 528; Elder v. Massachusetts Mortg. Co., 159 Wash. 450, 293 Pac. 711, and annotation thereto in 85 A. L. R. 638, 644. The judgment will be affirmed.

Affirmed.

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


text:
    Raymond H. James and Florence James, Appellants, v. Mrs. Lillian Langley et al., Appellees.
    Gen. No. 42,999.
    Opinion filed May 29, 1944.
    Thomas C. McConnell, of Chicago, for appellants.
    Trueblood & Johnson, of Chicago, for appellees; Franklin D. Trueblood, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

June 25, 1943, plaintiffs filed a suit in the superior court of Cook county in forcible entry and detainer against Langley, et al. (nine defendants in all), to recover possession of premises in Chicago known as 720 North Rush street and particularly described as the North 29% feet of Lot 1 in Assessor’s Division, Block 47 in Kenzie’s Addition to Chicago. Plaintiffs filed a complaint of twelve counts. A particular count of the complaint was devoted to each defendant, his or her particular room, named, and he or she charged with wrongfully withholding possession of it. Against each of the defendants plaintiffs also claimed money due for “rent” otherwise described as for wrongful withholding of the particular room from May 1, 1943. The complaint charged each defendant was in possession under a tenancy at will, and that there had been served on each on April 1, 1943, a notice that his or her tenancy would be terminated on May 1,1943. The action was apparently under section 6 of the Landlord and Tenant Act (Ill. Rev. Stat. 1943, ch. 80, § 6, p. 1971 [Jones Ill. Stats. Ann. 72.06]). Defendants appeared and with the one exception answered generally, denying the charges. The other defendant made a motion for a more particular statement. Defendants also later filed a counterclaim against plaintiffs, alleging failure on their part to render service as agreed.

October 9, 1943, plaintiffs filed in the municipal court of Chicago nine several complaints in forcible entry and detainer against the same defendants to recover possession of the same premises, 720 North Eush street. In each case the room in the building said to be occupied by the defendant was named, and it was alleged a demand for rent had been made in compliance with section 8 of chapter 80, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 72.08], and the tenancy terminated by nonpayment. In each case judgment for possession was demanded and a sum claimed for rent or damages for withholding possession of the premises from May 1, 1943. Each defendant appeared and made a motion to dismiss on the ground the action in the municipal court was barred by the former action pending in the superior court. The several causes of action were consolidated in the municipal court under General No. 43 M 1232. The court heard evidence on the motions. Pleadings of the superior court in the first case were received in evidence. On December 20, 1943, the motion of defendants to dismiss was sustained and an order to that effect entered, with judgment against plaintiffs for costs. Plaintiffs have appealed.

The court held that the action brought in the superior court involved precisely the same issues as those in the consolidated cases in the municipal court, and that under the rule that a defendant might not be twice vexed with the same action at the same time the municipal court action should be dismissed.

The rule that a defendant may not be twice vexed with the same cause of action is ancient; (See Am. Jur., Vol. 1, p. 27, §14, “nemo, debet bis vexare”). This was the general rule in Illinois prior to the adoption of the Civil Practice Act (Haas v. Righeimer, 220 Ill. 193) and is specifically recognized in that Act (Smith-Hurd’s Ann. Stats., ch. 110, § 48 (b), p. 391 [Jones Ill. Stats. Ann. 104.048]). See also § 39, p. 245 [Jones Ill. Stats. Ann. 104.039], We are of the opinion the rule is applicable here and justified this order. The parties, plaintiffs and defendants, are identical. The subject matter of the two actions is also identical. The issues are the same as to rent or damages for the withholding of the premises and as to the right of possession. It is quite true far different issues might have been raised. They were not. We take the record as we find it. All the issues can be tried between all the parties in the suit in the superior court. (Smith-Hurd’s Ann. Stats., ch. 110, § 39 [Jones Ill. Stats. Ann. 104.039]).

Plaintiffs cite Merrin v. Lewis, 90 Ill. 505. This case is not to the contrary. The opinion well points out that although at the beginning of a cause of action a plaintiff could not recover in forcible entry and detainer, facts might arise thereafter on which he would subsequently be entitled to recover. That is far from saying that the plaintiff would be entitled to try the two identical actions. Plaintiffs also cite Meier v. Hilton, 257 Ill. 174. That case is clearly distinguishable. It was there held a forcible entry and detainer suit would not be abated by reason of the pendency of a chancery suit which involved the issue of title to the premises rather that the right to possession. Defendants cite Steele v. Grand Trunk Junction Ry. Co., 125 Ill. 385. It is explained by the distinguishing circumstances stated in the opinion of Mr. Justice McAllister, 20 Ill. App. 366. Schumann Piano Co. v. Mark, 208 Ill. 282, also cited, holds merely that a cause of action in assumpsit for unpaid rent cannot be successfully pleaded in abatement of a forcible entry and detainer suit.

The judgment will be affirmed.

Affirmed.

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


author: Mr. Justice Niemeyer

text:
    Michelina Auriemma and Clara Auriemma, Administratrix of Estate of Paschuala Auriemma, Deceased, Appellees, v. Western and Southern Life Insurance Company, Appellant.
    Gen. No. 42,638.
    Opinion filed May 29, 1944.

      Hoyne, O’Connor, Rubinkam & Melaniphy, of Chicago, for appellant; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
    David S. Chesrow and Barney L. Hollowick, both of Chicago, for appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment against it entered on an industrial life insurance policy issued by it for $500.

The amended statement of claim alleges the execution and delivery of the policy on October 28, 1940, and the death of the insured on February 18, 1941 from cirrhosis of the liver. Defendant’s second amended answer alleges that the policy was issued without a medical examination or inspection by a doctor and contained a provision that, subject to the provision headed “Incontestability,” not here involved, “no obligation is assumed by the company unless on the date and delivery of this policy the insured is alive and in sound health”; that the insured was not in sound health at and prior to the date of application or on the date of delivery of the policy, but was suffering from a serious ailment, namely cirrhosis of the liver, and that by reason thereof the company did not incur any obligation by the issuance of the policy. An alternative defense, based on alleged false answers to questions in the application, which was not attached to or made a part of the policy, has been abandoned by defendant. On motion of plaintiff the answer was stricken and judgment entered against defendant.

The right of an insurer to set up as a defense the breach of a similar condition precedent, the application not being attached to or made a part of the policy, has been sustained in Anderson v. John Hancock Mut. Life Ins. Co., 316 Ill. App. 338, decided shortly before the entry of judgment in the instant case. Plaintiff, however, insists that the provision in the policy relating to sound health is applicable only when there has been a change in the health of the insured between the time of the application and the delivery of the policy. She relies on Johnson v. Royal Neighbors of America, 253 Ill. 570; James v. National Life & Accident Ins. Co., 265 Ill. App. 436; Hungate v. New York Life Ins. Co., 267 Ill. App. 257; Fairfield v. Union Life Ins. Co., 196 Ill. App. 7; Walsh v. Prudential Ins. Co. of America, 285 Ill. App. 226; Western & Southern Life Ins. Co. v. Davis, 141 Ky. 358; Modern Woodmen of America v. Atkinson, 153 Ky. 527; Chinery v. Metropolitan Life Ins. Co., 112 Misc. 107, 182 N. Y. S. 555; Interstate Life & Accident Ins. Co. v. McMahon, 50 Ga. App. 543, 179 S. E. 132, 135. In each of the cases cited, except Walsh v. Prudential Ins. Go. of America, and Interstate Life & Accident Ins. Go. v. McMahon, the policy was issued upon medical examination by the company physician. In the two cases where medical examination was not had, the authorities relied upon were cases in which such examination was had. In Bronarczyk v. Prudential Ins. Co. of America, 298 Ill. App. 621 (Abst.), where the policy was issued without examination, the second division of this court held, adversely to plaintiffs’ contention that the provision of the policy as to sound health, relied upon by defendant, does not apply to a condition that existed prior to and at the time of making the application. As in the present case, James v. National Life & Accident Ins. Co., Johnson v. Royal Neighbors of America, and Walsh v. Prudential Ins. Co. of America, were relied upon by plaintiff. These cases were held to be inapplicable and attention directed to the fact that “The several cases cited by plaintiff in support of this contention were all based upon policies issued pursuant to a medical examination.” In the note to the annotation in 17 L. R. A. (New Series) 1144, in referring to stipulations that the policy shall not take effect unless the insured is in good health when the policy is delivered, it is said: “It may be said generally that such stipulations are valid and binding, and that there can be no recovery if the policy is delivered to assured while he is in ill health, provided that neither the insurer nor any authorized agent had knowledge thereof; and this is trifé, by the weight of authority, even if the illness arose before the time of the application and medical examination.”

Limiting our decision to the question before us, we hold that in cases like the present where there has been no medical examination, conditions in the policy as to sound health apply to the health of the insured at the delivery of the policy, irrespective of whether or not the ill health existed at or before the application for the policy.

The judgment of the municipal court of Chicago is reversed and the cause remanded with directions to proceed in accordance with this opinion.

Reversed and remanded tvith directions.

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


author: Justice Kiley.

text:
    People of the State of Illinois ex rel. Oscar Nelson et al., Appellees, v. Northwestern Trust and Savings Bank et al., Appellants. Appeal of Otto C. Woerter, Receiver of Northwestern Trust and Savings Bank, from finding on Intervening Petition of John N. Budzban, Receiver of Northwestern Securities Company.
    Gen. No. 42,508.

      opinion filed April 26, 1944;
    rehearing denied June 13, 1944.
    Herbert G. Immenhausen, for certain appellant; Russell W. Root, of counsel; Smietanka, Conlon & Nowak, for certain appellee; Charles D. Snewind, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Presiding Justice Friend.

text:
    Western Picture Frame Company, Appellant, v. William Tuchin, Appellee.
    Gen. No. 42,463.
    opinion filed May 2, 1944.
    Irving H. Goldberg, for appellant; Maurice S. Weigle, of counsel; Sabath, Edelman & Light, for appellee; Milton J. Sabath and Albert S. Light, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Louis Holtzman, Trading as Tower Currency Exchange, Appellee, v. Julius L. Goodman, Appellant.
    Gen. No. 42,909.
    opinion filed May 2, 1944.
    Eugene A. Weinberg, for appellant; Edward L. S. Arkema and Ira Jacobs, for appellee; Carl N. Howig, of counsel.
   Opinion by

Presiding Justice Friend.

Mot to be published in full.


author: Justice Scanlan.

text:
    Frankenstein and Company, etc., et al., Plaintiffs, v. Richard L. Williams, Jr. et al., Appellees. James Nichols and Andrew G. Halas, Trading Under Name and Style of Anderson-Halas and Associates, Appellants.
    Gen. No. 42,344.

      opinion filed May 2, 1944;
    rehearing denied May 17, 1944.
    Randolph Bohrer, for appellants; Birchard P. Hayes, of counsel; Murphy, Lilliander & Gemmill, for appellee.
   Opinion by

Justice Scanlan.

Hot to be published in full.


text:
    Anna Kusak, Appellee, v. Frank Karnik et al., Appellees. Hart E. Baker, Appellant.
    Gen. No. 42,383.
    opinion filed May 2, 1944.
    Hart E. Baker, pro se; Marcus Levy, for appellee Anna Kusak; Ode L. Rankin, of counsel.
   Opinion by

Justice Scanlan.

Hot to be published in full.


text:
    John Hertely, Appellant, v. Michael Tremko, Appellee.
    Gen. No. 42,751.

      opinion filed May 2, 1944;
    rehearing denied May 17, 1944.
    Eugene F. Jewett and Eugene C. O’Reilly, for appellant; Joseph F. Elward, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Amber Furniture Company, Appellee, v. Kessel Brothers Storage Company, Appellant.
    Gen. No. 42,766.
    opinion filed May 2, 1944.
    Milton Kauffman and Raphael Fine, for appellant; Raphael Fine, of counsel; Sidney J. & Arthur Wolf, for appellee; Arthur Wolf, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    Jean Marlowe, Appellant, v. Chicago Title and Trust Company, Trustee, Appellee.
    Gen. No. 42,272.

      opinion filed May 2, 1944.
    Milton M. Adelman, for appellant; Miller, Gorham, Wescott & Adams, for appellee; Sidney S. Gorham, Jr. and Alphonse H. Aymond, Jr., of counsel.
   Opinion by

Justice Sullivan.

Hot to be published in full.


text:
    Illinois Casket Company, Appellant, v. Adolph Cohn, Trading as Central Funeral Home, Appellee.
    Gen. No. 42,787.
    opinion filed May 2, 1944.
    Harry S. Greenstein, for appellant; Harry F. Brewer, of counsel; Black & Beermann, for appellee; Benjamin H. Black, of counsel.
   Opinion by

Justice Sullivan.

Hot to be published in full.


text:
    Bessie Simon, Appellant, v. Paul Balasic and Alfred Balasic, Appellees.
    Gen. No. 42,863.
    opinion filed May 2, 1944.
    Jacob Levy, for appellant; Edward McTiernan, of counsel; Max M. & Samuel Grossman, for appellees; Sid Mogul and Louis N. Grossman, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Per Curiam.

text:
    People of the State of Illinois, Defendant in Error, v. Bruce Borrelli (Impleaded), Plaintiff in Error.
    Gen. No. 42,769.

      opinion filed May 2, 1944;
    rehearing denied and additional opinion filed June 16, 1944.
    Wm. Scott Stewart, for plaintiff in error; George F. Barrett, Attorney General, for defendant in error; Thomas J. Courtney, State’s Attorney, Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Richard B. Austin and Alexander J. Napoli, Assistant State’s Attorneys, of counsel.
   Per Curiam.

Not to be published in full.


text:
    Mildred Garrett, Appellant, v. National Casualty Company, Appellee.
    Gen. No. 42,563.
    opinion filed May 5, 1944.
    Henry L. Blim, for appellant; Donald M. Roche, for appellee; Dean A. Esling, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    R. M. Kanik, Appellee, v. Johnson Brothers Heating Company, Appellant.
    Gen. No. 42,581.
    opinion filed May 5, 1944;
    rehearing denied May 19, 1944.
    Fred B. Houghton, for appellant; William S. Kleinman, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Presiding Justice Hebel,

text:
    James Jirkovsky, Jr., Minor, by James Jirkovsky, Sr., His Father and Next Friend, Appellee, v. Junice Elfman and Bernard J. Elfman, Appellants.
    Gen. No. 42,496.

      opinion filed May 19, 1944.
    Samuel Levin, for appellants ; E. R. Shaw, of counsel; Royal W. Irwin, for appellee.
   Opinion by

Presiding Justice Hebel,

Hot to be published in full.


text:
    Anna Starczynski, Appellee, v. Alfred Miltenberg, Appellant.
    Gen. No. 42,600.
    opinion filed May 19, 1944.
    Ross, Berchem & Sehwantes, for appellant; Thaddeus C. Toudor, for appellee; Joseph Barbera, of counsel.
   Opinion by

Justice Kiley.

Hot to be published in full.


text:
    Mattie Jones, Appellee, v. Herman H. Goodfriend, Appellant.
    Gen. No. 42,609.
    opinion filed May 19, 1944.
    Clausen, Hirsh & Miller, for appellant; Alan Gould and Samuel J. Baskin, for, appellee.
   Opinion by

Justice Kiley.

Not to be published, in full.


text:
    Sam Panitch, Appellee, v. Yellow Cab Company, Defendant, Clarence Cross, Inc., Defendant, Yellow Cab Company, Appellant.
    Gen. No. 42,356.

      opinion filed May 23, 1944.
    Samuel A. & Leonard B. Ettelson, for appellant; Edward C. Higgins and Robert E. Samuels, of counsel; Stanley L. Shetler, for Clarence Cross, Inc.; Irving G. Zazove, for appellee; Clyde C. Fisher, of counsel.
   Opinion by

Presiding Justice Friend.

Hot to be published in full.


text:
    Edward Borkstrom, Appellant, v. South Shore Garages, Inc., Appellee.
    Gen. No. 42,670.
    opinion filed May 23, 1944;
    rehearing denied June 6, 1944.
    Harry S. Posner, for appellant; Arthur A. Wolfinsohn, of counsel; Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Opinion by

Presiding Justice Friend.

Hot to be published in full.


text:
    Harold C. Moist, Appellee, v. Paul F. Jones, Director of Insurance of Illinois, Appellant.
    Gen. No. 42,699.
    opinion filed May 23, 1944;
    opinion modified June 7, 1944.
    George F. Barrett, Attorney General, for appellant; William C. Wines, Assistant Attorney General, of counsel; Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published, in full.


text:
    Nathan Katzin and Edna L. Weiss, Appellants, v. Nabco Liquidating Company et al., Appellees.
    Gen. No. 42,489.

      opinion filed May 23, 1944;
    rehearing denied June 6, 1944.
    Archie Schimberg and Maurice L. Davis, for appellants; Maurice L. Davis, of counsel; Hopkins, Sutter, Halls & DeWolfe, for certain appellees; Bell, Boyd & Marshall, for certain other appellees; Gardner, Carton & Douglas and Erwin W. Roemer, for certain other appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    James Betinis and James Photakis, Appellees, v. S. J. Gregory, Appellant.
    Gen. No. 42,794.
    opinion filed May 23, 1944.
    Bluford, Krinsley, Schultz & Voorheis, for appellant; Lazarus Krinsley and Raymond Harkrider, of counsel; Heth, Lister & Flynn, for appellees.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Lester Al Smith, Appellee, v. Hotel Sherman, Inc., Appellant.
    Gen. No. 42,853.
    opinion filed May 23, 1944.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; Isaac E. Ferguson and Ben Liss, of counsel; Morris S. Telechansky and Maurice L. Aberman, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Stylist, Inc., Appellant, v. O’Connor and Goldberg, Appellee.
    Gen. No. 42,860.

      opinion filed May 23, 1944;
    rehearing denied June 6, 1944.
    Joseph B. Gilbert, for appellant; James R. Quinn and David Jetzinger, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    B. H. Molner, Appellee, v. Helen and John Arendt et al. Stanley L. Brown, for use of B. H. Molner, Assignee, v. Pressed Steel Car Company, Appellant.
    Gen. No. 42,869.
    opinion filed May 23, 1944.
    James J. O’Toole and E. C. Frank Meier, for appellant; C. A. Caplow, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Myrtle L. Eils, Appellant, v. Nancy Works, Appellee.
    Gen. No. 42,771.

      opinion filed May 23, 1944.
    Frederick J. Bertram, for appellant; Wilson & McIlvaine, for appellee; J. F. Dammann and Sidney K. Jackson, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Jacoby B. Jacobsen, Appellee, v. Walter J. Cummings, Receiver, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,844.

      opinion filed May 23, 1944.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Opinion by

Justice Sullivan.

Hot to be published, in full.


text:
    Lenn McGowan et al., Appellees, v. Josephine Price Ellis et al., Appellants.
    Gen. No. 42,917.
    opinion filed May 23, 1944.
    Heber T. Dotson, for appellants; Prescott, Burroughs & Taylor, for appellees; A. Morris Burroughs and Patrick B. Prescott, Jr., of counsel.
   Opinion by

Justice Sullivan.

Hot to be published in full.


author: Presiding Justice Dady.

text:
    I. L. Vancil, Appellee, v. Charles J. Walter et al., Defendants. Charles J. Walter, Appellant.
    Gen. No. 9,428.

      opinion filed May 24, 1944.
    Hogan & Coale, for appellant; Flesher & Taylor, for appellee.
   Opinion by

Presiding Justice Dady.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    Benjamin B. Morris, Appellant, v. Columbia Apartments Corporation et al., Appellees.
    Gen. No. 42,593.
    opinion filed May 29, 1944;
    rehearing denied June 12, 1944.
    David I. Spark, for appellant; Decker & Golden, for certain appellees; Lawrence A. Jacobson, for certain other appellees; Louis Hershman, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Harry K. Jones, Appellee, v. Nina A. Pool, Individually and Trustee Under the Last Will and Testament of Sarah E. Jones, Deceased, Appellant.
    Gen. No. 42,680.
    opinion filed May 29, 1944.
    Miller, Kamenear & Margolis, for appellant; Leon N. Miller, of counsel; Henry A. Blouin, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Matchett.

text:
    Dr. Earl L. Richey, Appellant, v. Northwestern University, Appellee.
    Gen. No. 42,819.
    opinion filed May 29, 1944;
    rehearing denied June 12, 1944.
    Urban A. Lavery, for appellant; Ralph K. Ball and Poppenhusen, Johnston, Thompson & Raymond, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    People of the State of Illinois ex rel. Marjorie Warfield, Appellant, v. Board of Education of the City of Chicago et al., Appellees. Appeal of Marjorie Warfield, Appellant.
    Gen. No. 42,911.
    opinion filed May 29, 1944.
    George W. Lawrence, C. Francis Stradford, William H. Temple and Jerry M. Brumfield, for appellant; Jerry M. Brumfield, of counsel; Richard S. Folsom, for appellees; Frank S. Righeimer and Frank R. Schneberger, of counsel.
   Opinion by

Justice Matchett.

Hot to be published in full.


text:
    General American Steel and Tube Company, Inc., Appellant, v. American Electric Fusion Corporation, Appellee.
    Gen. No. 42,912.
    opinion filed May 29, 1944.
    Maxwell Landis, for appellant; Howard A. Brundage and Kirkland, Fleming, Green, Martin & Ellis, for appellee; Thomas B. Martineau and George E. Kanary, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    General Motors Corporation (Cadillac Motor Car Division), Appellee, v. William E. Phelan, Appellant.
    Gen. No. 42,984.
    opinion filed May 29, 1944.
    Silverstein & Silverstein, for appellant; Julius J. Silverstein, of counsel; Taylor, Miller, Busch & Boyden, for appellee; Preston Boyden and Cassius M. Doty, of counsel.
   Opinion by

Justice Matchett.

Hot to be published in full.


author: Justice Niemeyer.

text:
    People of the State of Illinois ex rel. Calumet Federal Savings and Loan Association of Chicago et al., Appellees, v. City of Chicago and County of Cook, State of Illinois, Defendants. Appeal of County of Cook, Appellant.
    Gen. No. 42,457.

      opinion filed May 29, 1944;
    rehearing denied June 12, 1944.
    Thomas J. Courtney, State’s Attorney, for appellant; Marshall V. Kearney, Jacob Shamberg and David Leeds, Assistant State’s Attorneys, of counsel; Urion, Bishop & Sladkey, Peden, Ryan & Andreas and Arthur J. Hughes, for appellees; Howard F. Bishop, Gerald Ryan and Philip Gibbons, of counsel.
   Opinion by

Justice Niemeyer.

Not to bé published in. full.


text:
    Roy Parthie, Administrator of Estate of Anna Parthie, Also Known as Anna Shipla, Deceased, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,507.
    opinion filed May 29, 1944.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; Walker, Atwood & Porter, for appellee; Irwin N. Walker and John R. Porter, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Marion Hall Galter, Appellee, v. Louis Galter, Appellant.
    Gen. No. 42,553.
    opinion filed May 29, 1944;
    rehearing denied June 12, 1944.
    Pines, Stein & Lipton, for appellant; Alvin E. Stein, of counsel; Ehrlich & Cohn, for appellee; Aaron H. Cohn, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Charles C. Miller, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,588.
    opinion filed May 29, 1944.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in 'full.


text:
    Richard J. Gebel, Appellee, v. H. Fred Wilson, Appellant.
    Gen. No. 42,599.
    opinion filed May 29, 1944.
    Jerome J. Sladkey, for appellant; Immenhausen, Banovitz, Balin & Goebel, for appellee; Meyer C. Balin, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Herman Kaminsky et al., Plaintiffs in Error.
    Gen. No. 42,672.

      opinion filed May 29, 1944.
    Charles A. Bellows, for plaintiffs in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Howard C. Meissner, Appellee, v. Josephine Meissner, Appellant.
    Gen. No. 42,731.
    opinion filed May 29, 1944.
    Charles Edward Newton, for appellant; Samuel M. Starr, for appellee; Stephen J. Sullivan, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.