author: MR. JUSTICE SCHWARTZ

text:
    Edgar S. Keats and The Northern Trust Company, as Co-Executors of the Last Will of Max L. Keats, Deceased, and of the Last Will of Clara H. Keats, Deceased, Plaintiffs-Appellees, v. Sandra A. Cates and Title Insurance and Trust Company, a California Corporation, as Executor and Trustee Under the Last Will of Samuel D. Cates, Deceased, Defendants-Appellants, and Loren Kramer, Victoria Kramer, Dorothy L. Nelson and Ernest Nelson, Her Husband, Grace Schoenfeld, Rita Rodenbeck Adler, Edna Rodenbeck, Robert L. Keats and Ann Keats, His Wife, William A. Anderson, Deceased, Grace Hilliard, Harvey E. Hilliard, Sadie Langah, Melva Benjamin, D. C. Braham Benjamin, Charles A. Reif, Mary Reif, Raymond Carroll, Receiver, Defendants-Appellees.
    Gen. No. 51,382.
    First District, Third Division.
    October 10, 1968.

      Westbrook, Jacobson, and Brandvik, and Bentley, Campbell, Du Canto and Silvestri, of Chicago (Lowell H. Jacobson and Bert C. Bentley, of counsel), for appellants.
    Clarence F. Martin, and Kelly and Cohler, of Chicago, for appellees.
   On Rehearing

MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a decree which impressed a trust on the assets of Samuel D. Cates, deceased, in favor of the beneficiaries named in a reciprocal will executed by him in accordance with an agreement with his first wife. The defendants Sandra A. Cates deceased’s second wife, and Title Insurance and Trust Company (a California corporation) as executor and trustee under decedent’s last will, appeal. Their principal contentions are that the court did not have jurisdiction over them, that a necessary party was not joined, and that the agreement to execute reciprocal wills was unenforceable against the second wife by reason of public policy.

Samuel and Juel Cates were married in 1921 and lived together in Chicago until Juel’s death in 1958. In 1944 they consulted Samuel’s attorney who prepared a written agreement for reciprocal wills, to which copies of the proposed wills were attached as exhibits. The agreement and wills were executed on June 6, 1944. The agreement provided:

“Each of the parties hereto covenants and agrees with the other party hereto not to revoke, annul, cancel, modify, amend or change his or her said Last Will and Testament either in whole or in part, without the consent in writing of the other party hereto.”

The ultimate beneficiaries of their wills were Samuel’s and JueFs relatives.

Thereafter Samuel and Juel executed supplemental agreements, and codicils to Samuel’s will were executed by him pursuant to those agreements. The basic plan of distribution however remained unchanged. After Juel’s death her will of June 6, 1944, made pursuant to the reciprocal agreement, was filed by Samuel in the Probate Court of Cook County. It was not offered in probate.

Samuel then moved to California, was introduced to Sandra in August 1959, and married her on February 7, 1960. Samuel and Sandra had discussed the execution of antenuptial property agreements and although one was prepared, it was never executed. Samuel did, however, execute a new will on June 2, 1960, which specifically revoked the will of June 6, 1944, and the codicils thereto. In his new will he devised $10,000 to Sandra and placed the balance of his estate in trust with the Title Insurance and Trust Company. Sandra was to receive the net income of the trust for life with liberal provisions for invasion of the corpus and the balance was to be distributed to Samuel’s and Juel’s relatives, although not in the same proportions as had been provided in the previous will made pursuant to the agreement with his deceased wife. Samuel died on January 18,1961.

At the time of his death, Samuel’s assets consisted of personal property having a situs in California and a parcel of commercial real estate in Chicago which had formerly been held in joint tenancy between him and Juel Cates. His will was admitted to probate in California and his personal estate administered there. The will was also admitted to probate in Cook County and an administrator with the will annexed appointed. This suit was filed shortly after Samuel’s death by the beneficiaries named in the 1944 will.

Defendants Sandra Cates and the Title Insurance and Trust Company were served with summons in California and filed special appearances and motions to quash service of process. Those motions were supported by affidavits denying any connection with the State of Illinois which would make them amenable to process pursuant to the provisions of the “long-arm” statute, Ill Rev Stats, c 110, § 17 (1967). These motions were denied. Sandra then answered the complaint and proceeded to a hearing on the merits. The trust company did not answer and a default judgment was entered against it.

When the jurisdiction of a court over the person of a defendant is challenged and the court determines that it does have jurisdiction, the party affected may proceed to a hearing on the merits of the case and still preserve for review the contention that he is not amenable to process issued by a court of this state. Koplin v. Thomas, Haab & Botts, 73 Ill App2d 242, 219 NE2d 646. This is distinct from the situation in which a defendant couples a jurisdictional objection with an invitation to the court to exercise its jurisdiction, in which case the objection is contradictory to the conduct of the affected party and is deemed to be waived. Widicus v. Southwestern Co-op., 26 Ill App2d 102, 167 NE2d 799; O’Flaherty v. Osborn, 26 Ill App2d 152, 167 NE2d 563; Spencer v. American United Cab Ass’n, 59 Ill App2d 165, 208 NE2d 118. In the instant case both Sandra Cates and the trust company properly objected to the jurisdiction of the court and we are, therefore, free to consider the question on this appeal.

The affidavit filed by the trust company in support of its motion to quash service stated that it was not licensed or qualified to do business in Illinois and had no agent here; that it had not transacted business here; nor had it “any knowledge of any acts performed by it or arising out of such ownership, use or possession of real property in the State of Illinois, as it may have in its capacity as executor” which would give rise to any cause of action.

There can be no question that Illinois courts have jurisdiction over Chicago real estate. As the state of the situs of the property, Illinois courts have jurisdiction not only to determine the ownership of Illinois real estate, but may also impose obligations upon persons in an action in personam arising from the ownership, use or possession of property within the state. Ill Rev Stats, c 110, § 17 (1967). The trust company, as trustee under Samuel’s will, became the holder of the legal title to the premises by virtue of the admission of the will of Samuel Cates to probate in Cook County. Ill Rev Stats, c 3, § 53 (1967). Insofar as the beneficiaries under the 1944 will sought to assert an equitable interest in the premises owned by Samuel Cates at the time of his death and to remove the 1960 will as a cloud upon the title to the premises, the legal titleholder is a necessary party to the adjudication of the claim and subject to the jurisdiction of the Illinois courts.

Appellants argue that the 1960 will directed the executor to effect the sale of the Illinois real estate; that this direction to sell worked an equitable conversion of the real estate into personal property and hence should be treated as having situs in California. With reference to the Illinois property the will stated:

"... I direct my aforesaid Executor to exercise every effort to effect a sale of the same at a time, price and upon conditions most beneficial to my estate, it being my intention and desire that the same be either converted into cash or its equivalent or that the same be exchanged for property located in the State of California in order that the same may become a part of the residue of my estate and thus become a part of the trust hereinabove established.

It is apparent that this provision was not intended for the purpose of distribution but for the purpose of continued administration by the trustee. Nor was there a duty upon the executor to convert the premises into personal property. It had the option of exchanging it for real estate located in California. We hold that there was no equitable conversion of the real property into personal property.

We proceed to consider the contention of appellants that the California executor could not be required to account for rents received by it during the course of its administration of the property. The “long-arm” statutes provides that a person, whether or not he is a citizen or resident of this state, submits to the jurisdiction of our courts by engaging in forms of conduct enumerated in the law. The specific provision here in question provides that an individual submits to jurisdiction as to any cause of action arising from the ownership, use or possession of real estate situated in Illinois. Ill Rev Stats, c 110, § 17(1) (c) (1967). After Samuel’s death the Title Insurance and Trust Company, either as his executor or trustee, and Sandra Cates collected the rents from the Chicago real estate until a receiver was appointed by the trial court. To that extent Title Insurance and Trust Company submitted itself to the jurisdiction of the Illinois courts in an action for an accounting of the rents collected during that period.

Appellees maintain that the Illinois courts have jurisdiction to control the disposition of Samuel Cates’ personal property which is presently being held by the Title Insurance and- Trust Company as executor and trustee under his will. Such jurisdiction cannot arise from the ownership of real estate by Samuel or his trustee nor by the collection of rents by virtue of paragraph 3 of section 17. It must arise, if at all, from the execution of the 1944 contract and wills in this State. Appellees argue that this is a “transaction of business” here and is an action by which Samuel submitted his personal representative to the jurisdiction of our courts. It is their contention that this suit grows out of this business transaction and that Illinois courts may exercise jurisdiction over the California executor and trustee for the purpose of resolving questions arising from the contract. A state court may exercise personal jurisdiction over a nonresident if there is such “minimal contact” with the forum state as would satisfy the requirements of due process. International Shoe Co. v. State of Washington, 326 US 310 (1945). Although the application of the rule will vary to the extent and character of the defendant’s activity, it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protection of its laws. Hanson v. Denckla, 357 US 235 (1957).

The Illinois legislature in the adoption of the “long-arm” statute set forth acts which constitute “minimal contact” with this state sufficient to justify the exercise by Illinois courts of personal jurisdiction over nonresident defendants. The constitutionality of this provision was sustained in Nelson v. Miller, 11 Ill2d 378, 143 NE2d 673. The court held that section valid, not on the basis of implied consent to the jurisdiction of our courts, but on the basis of the legitimate interest of the state in providing redress in its courts against persons who, having substantial contacts with the state, incur obligations to those entitled to the state’s protection. A similar statute was upheld by the United States Supreme Court in McGee v. International Life Ins. Co., 355 US 220 (1957).

When an individual submits to the jurisdiction of the Illinois courts by performing one of the acts enumerated in the statute and avails himself of the protection of our law, his personal representative may also be subject to the jurisdiction of our courts. Hayden v. Wheeler, 33 Ill2d 110, 210 NE2d 495. In Hayden the court held that the foreign administrator of a deceased nonresident who had been involved in an automobile accident in Illinois was a “personal representative” within the meaning of section 17 and was therefore amenable to the jurisdiction of the Illinois court under that section. The court, after stating the general rule to be that courts of one state cannot assert jurisdiction over a foreign administrator or executor, said (p 113) :

“Whatever be the basis of the general rule, however, courts have almost unanimously held that the rule must give way to legislative enactments which extend judicial jurisdiction over foreign administrators in appropriate instances, such as when the administrator’s decedent has committed a tortious act in the forum State.”

Appellees contend that the holding of Hayden v. Wheeler should be extended to provide personal jurisdiction over the executor of an estate of an individual who transacts business in Illinois by entering into a contract for the execution of reciprocal wills. The protection of life and property within its boundaries is a primary concern of state government and accordingly each state has a vital interest in providing forum for actions arising from torts committed within its borders. The vital interests of the state have expanded as our citizens have become more mobile and markets have become nationwide in scope, and the law has correspondingly evolved. No vital interests of the State of Illinois are here affected however. We note that some of the beneficiaries under the 1944 will have instituted action in California against these same defendants upon the same cause of action. Illinois has no greater interest in the disposition of the personal property of Samuel Cates than has the State of California. In the instant case we must adhere to the general proposition that one state cannot assert jurisdiction over a foreign executor when the jurisdiction is predicated simply upon the execution in that state of a contract to make a will. The disposition of personal property having its situs in California should be left to the California courts.

It is our conclusion, however, that the Illinois court did obtain jurisdiction over the person of Sandra Cates and over the Title Insurance and Trust Company for the purpose of determining the ownership of real estate located in Illinois and accounting for the rents therefrom. We proceed to consider the validity of the 1944 agreement and the rights of the beneficiaries of such contract under Illinois law.

A person may enter into a contract to dispose of his property by will if the contract is supported by any consideration such as mutual promises to execute wills conforming to the agreement, and such a contract becomes irrevocable when one party dies having executed a conforming will and not having received notice of revocation by the other party to the agreement. Frazier v. Patterson, 243 Ill 80, 90 NE 216, (which followed the early English case of Dufour v. Pereira, 1 Dick 419).

Contracts for reciprocal wills are still valid in Illinois and have been enforced in numerous cases. Curry v. Cotton, 356 Ill 538, 191 NE 307; Peck v. Drennan, 411 Ill 31, 103 NE2d 63; Platz v. Walk, 3 Ill2d 313, 121 NE2d 483; In re Estate of Edwards, 3 Ill2d 116,120 NE2d 10; In re Estate of Baughman, 20 Ill2d 593, 170 NE2d 557. A valid agreement of this type has also been held to be sufficient to govern the disposition of property held in joint tenancy by the parties if such appears to have been their intent. Helms v. Darmstatter, 34 Ill2d 295, 215 NE2d 245; Bonczkowski v. Kucharski, 13 Ill2d 443, 150 NE2d 144. Agreements with respect to reciprocal wills may be enforced through an action at law for breach of contract or by a suit in equity seeking a decree imposing a trust on the property involved. In re Estate of Baughman, 20 Ill2d 593,170 NE2d 557. If the court finds there was a valid contract to dispose of property by will, a trust is fastened on the property in favor of the promisee. A trust so imposed will be enforced against the heirs and personal representatives of the deceased. Smith v. Smith, 340 Ill 34, 172 NE 32; Chambers v. Appel, 392 Ill 294, 64 NE2d 511.

Appellants cite Humane Society v. McMurtrie, 229 Ill 519, 82 NE 319, for the proposition that under pre-existing Illinois law the marriage of a testator revoked all prior wills. That is not the issue here. The question before us is whether the testator violated a valid contract by so revoking the will. In the case cited the testator and his mother executed a joint and reciprocal will which was to be effective upon the death of both parties “if no individual will has been made.” Several years thereafter and prior to the death of the mother, the testator married and he then executed an individual will. The joint will was no longer effective by the very terms of the agreement pursuant to which it was made and presumably the mother was aware of the revocation and could alter her estate plan as she saw fit. The case has no bearing on the issues here presented.

Appellants also cite Buehrle v. Buehrle, 291 Ill 589, 126 NE 539, as authority for their contention that reciprocal wills or contracts for the execution of such wills are inoperative against the rights of the testator’s widow. In that case the testator entered into an agreement with his brother, who was also his business partner, under the terms of which the brothers were to execute wills leaving their respective interests in the business to each other. The testator was married when the agreement was executed. That case therefore does not involve a spouse who married the testator following the execution of a reciprocal will. The court held that the husband could not by an agreement with his business partner deprive his widow of her rights in his estate and hence the widow was free to renounce the will and take her intestate share as provided by statute. The holding of the Buehrle case is consistent with the general rule that a contract to devise or bequeath property which is entered into by one who is married at the time he enters into such contract cannot defeat the rights of the surviving spouse of such promisor unless such surviving spouse has relinquished her rights in some other way. 1 Bowe-Parker; Page on Wills, § 10.24 (1960). In the instant case the first wife joined with the husband in the agreement for reciprocal wills. That agreement could not thereafter be rescinded unless notice of a revocation was given during the joint lives of the parties. At the time the agreement was executed and at the time it became irrevocable Sandra was not married to the testator and accordingly she had no rights which could be compromised by a property agreement which antedated her marriage to the testator. The Buehrle case is clearly distinguishable and has no application here.

The evidence before the master in chancery showed that Samuel Cates and Juel Cates executed the contract for reciprocal wills after careful preparation, that they modified the agreement three times, always on the assumption that the initial agreement was binding, that only after Juel’s death and in anticipation of his second marriage did Samuel attempt to avoid his obligations thereunder. The master found adequate consideration for the contract in the mutual promises of the parties and the giving up by Juel of her right to end the joint tenancy in the real and personal property of the parties. These findings are supported by the evidence. The court found that while lack of notice to or knowledge by Sandra of the existence of the reciprocal agreement could not in any manner affect its validity, there was evidence supporting the finding of the chancellor that Sandra did in fact have notice and was thereby afforded an opportunity to inquire into the nature of the agreement. That finding is based upon the testimony of W. Blair Gibbens, the attorney who represented Samuel prior to his death. Gibbens testified that Samuel and Sandra came to his office and discussed an antenuptial property agreement. In Sandra’s presence Gibbens referred to the Illinois agreement and advised Samuel to check with his attorneys in Illinois and clarify his rights under the contract. There was ample basis therefore for the finding that Sandra was aware of the agreement prior to her marriage to Samuel.

Appellants argue that a contract to execute a will is unenforceable against a second wife by reason of the pub-lie policy of providing for the financial security of widows. They also argue that the Illinois cases upholding such contracts are based on Dufour v. Pereira, supra, which has been modified by the House of Lords in the case of Dillon v. Public Trustee of New Zealand, 2 All England Reports 284 (1941), by the holding that joint and reciprocal wills are inoperative with respect to a second wife’s statutory share.

A contract to make joint wills which may operate to deprive a second spouse of her statutory share is not contrary to the public policy of Illinois. Smith v. Smith, 340 Ill 34, 172 NE 32; Chambers v. Appel, 392 Ill 294, 64 NE2d 511. That position has also been adopted by the New York Court of Appeals in a case substantially like the case at bar, Rubenstein v. Mueller, 19 NY2d 228, 225 NE2d 540 (1967). The foregoing decisions have established that it is the public policy of the State of Illinois that the rights of beneficiaries under a valid contract to make a will are not subject to be defeated by the claims of a second spouse.

It is argued that the Illinois cases upholding such contracts are based on the English case of Dufour v. Pereira, supra, and that this has been modified by the House of Lords in the case of Dillon v. Public Trustees of New Zealand, 2 All England Reports 284 (1941), by the holding that joint and reciprocal wills are inoperative with respect to a second wife’s statutory share. We find no indication however that the public policy of this state has changed nor do the decisions of our sister jurisdictions reveal such a trend.

Appellants further contend that the Illinois administrator with the will annexed was a necessary party defendant. Under the statutes applicable to decedents dying prior to July 1, 1966, an administrator with the will annexed was not a necessary party defendant to a proceeding in chancery to impress a trust on real estate of the decedent. Estate of Kapraun, 21 Ill App2d 231, 157 NE2d 700.

Lastly, it is contended that testimony violating the Dead Man’s Act (Ill Rev Stats, c 51, § 2 (1965)) was admitted by the master over objection. That point is not preserved by objection or exception to the master’s report and is not properly before us. Northern Trust Co. v. Sanford, 308 Ill 381,139 NE 603.

The evidence amply reveals the existence of a contract to execute reciprocal wills and the execution of such a contract by both parties. Under Illinois law that contract became irrevocable upon the death of Juel Cates. The court properly impressed a trust on the Illinois real estate of the deceased in favor of the beneficiaries under the agreement and properly ordered an accounting of the rents and profits thereof. It was without power, however, to enter an order with respect to the personal property in the estate of Samuel Cates.

The decree is affirmed in part and reversed in part and the cause is remanded with directions to the chancellor to revise the decree in accordance with the views herein expressed and for such other and further proceedings as are not inconsistent with such views.

Decree affirmed in part and reversed in part and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.


source: Caselaw Access Project

author: SMITH, P. J.

license: Public Domain

text:
    Clayton Orrill, Plaintiff-Appellant, v. Jesse W. Garrett and' C. L. Klepzig, Inc., a Corporation, Defendants, Employers Insurance of Wausau, a Corporation, and C. L. Klepzig, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 10,932.
    Fourth District.
    October 10, 1968.

      Hutchens & Mann, of Winchester (Richard E. Mann, of counsel), and Foreman, Rammelkamp, Bradney & Hall, of Jacksonville (Robert E. Bradney, of counsel), for appellant.
    Bellatti, Fay & Bellatti, of Jacksonville, for appellees.
   SMITH, P. J.

Plaintiff was injured in person and property in a collision between his automobile and a truck driven by the defendant, Jesse W. Garrett, and owned by the defendant, C. L. Klepzig, Inc. In a bench trial, plaintiff recovered a judgment against Garrett, the operator, by default. On Count II of his complaint based upon the master-servant relationship between Garrett and Klepzig, the court found the issues in favor of the defendant Klepzig and entered judgment accordingly. We are not concerned with an appeal from either judgment. Employers Insurance of Wausau was the insurance carrier of Klepzig. A citation to discover assets was issued to determine whether or not Garrett came under the protective cloak of the omnibus clause in this insurance policy. The trial court dismissed the citation with a finding that Klepzig did not expressly or impliedly grant permission to Garrett to operate the truck at the time of the accident, that Garrett did not have a valid Illinois State Operator’s license and that he did not come within the definition of “insured” under the omnibus clause of Klepzig’s public liability insurance policy issued by Employers. Plaintiff’s motion for a rehearing and to vacate the order dismissing the citation was denied. This appeal is from the order dismissing the citation and the order denying the rehearing and refusing to vacate.

Klepzig was a manufacturer of staves and operated a mill along Highway 267 approximately three-fourths of a mile north of Murrayville in Morgan County. Garrett was an employee of the mill. Most of the employees were from Missouri and went home on the weekend. Others “batched” at the stave mill and occupied cabins or shacks built by the employer for that purpose. There was no water supply at the mill and water for the use of the employees and for those who remained in the cabins was obtained and brought to the mill in twenty-gallon containers by any employee who happened to be going to town at the time when a supply was required. On a hot Friday evening in July, everyone had left the mill for the weekend except Garrett. He found he was without water; took the truck and was enroute to obtain water when the accident occurred.

Prior to leaving on the evening in question, the general manager of Klepzig told Garrett that there was a prospective buyer coming to look at the truck in question, showed Garrett where the keys were and directed him to show the keys to the prospective buyer if he came. Garrett testified that he also said “you won’t be going nowheres with it, will you?” and I said, “No, sir, I don’t drive.” He further testified that he had never driven any of the Klepzig trucks, had never been asked to drive one, did not drive one in the course of his usual employment, and that no one had ever told him not to drive any of the trucks nor had ever asked him to drive one.

The policy in question provided protection to

“any person while using an owned automobile — and any person . . . legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.”

For Garrett to become an additional insured under the omnibus clause of this policy, it is incumbent upon the plaintiff to establish by the preponderance of the evidence that Garrett’s “use” of the vehicle was with the express or implied permission of Klepzig. Hays v. Country Mut. Ins. Co., 28 Ill2d 601, 192 NE2d 855. It is Employers’ position in support of the trial court’s judgment that Garrett had no permission either express or implied to use the vehicle. It is plaintiff’s position that in order for Garrett to carry out the directions of his employer to show the keys to the prospective purchaser, it would be necessary for him to open the door and get the keys and thus use the vehicle. Plaintiff’s position is thus predicated upon the proposition that in order to carry out his instructions, Garrett was required to use the truck by opening the door and getting the keys. Garrett testified that his instructions were to show the prospective buyer where the keys were. They were out of sight in the ash tray, under the seat or under the mat — the evidence is not too clear on this point. In any event, there isn’t a single word of testimony that indicates that Garrett was required to deliver the keys to the prospective buyer. The mission assigned to him might well have been as effectively carried out by word of mouth without ever touching the truck. In short, to carry out the instructions of Klepzig, Garrett was not required to use the truck in any sense of the word much less operate it.

We should here observe that the word “use” is much broader than the term “operate” or “drive.” One who operates a motor vehicle obviously uses it, but one can use a motor vehicle without operating it. An automobile is being used, for example, by one riding in it although another is driving or operating it. 45 CJS, Insurance, § 829, p 902; General Accident Fire & Life Assur. Corp. v. Brown, 35 Ill App2d 43,181 NE2d 191; Visintin v. Country Mut. Ins. Co., 78 Ill App2d 75, 222 NE2d 550; Indemnity Ins. Co. of North America v. Metropolitan Cas. Ins. Co. of New York, 33 NJ 507,166 A2d 355.

Orrill urges that being without water, Garrett was confronted with an emergency and that there was an implied permission to use the truck to go after water. Implied permission involves an inference or circumstances arising from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection under circumstances signifying permission. An implied permission is not, therefore, confined alone to affirmative action. See 5 ALR2d, 7, p 609. The facts in this record tend to negate rather than to affirm an inferential or permissive use of the truck. Klepzig’s manager testified concerning the keys that generally they “put 'em in the office or somewheres, just put 'em in my pocket and take 'em. They were always out of the truck on weekends.” The usual practice, therefore, negates any thought that there was an implied permission to anyone staying over the weekend at the mill to use the truck. The keys were left in this truck for a limited and a specific purpose and Garrett’s direction was to show the prospective purchaser where the keys were, not to deliver them. Klepzig’s manager’s statement to Garrett that “you won’t be going nowheres, will you?” was construed by Garrett to refer to the operation of the truck when he replied, “No, sir, I don’t drive.” Garrett had no driver’s license. It would seem unreasonable to conclude from these circumstances that Garrett had any reason to believe that he had implied permission to use the truck. We assume there was an implied permission for Garrett to use the truck by leaning against it if he were tired or rest his foot on the bumper while he tied his shoe. It is submitted that such use does not mushroom into a permission to operate the truck. Neither the past conduct of the party nor the circumstances raise a reasonable implication that there was a tacit permission to use the truck. The shack was only three-quarters of a mile from town. The record is silent as to whether there was a telephone available or other habitations within reasonable walking distance. The trial court found that the master-servant relationship did not exist at the time of these occurrences. The record is clear that these shacks were available for the people if they cared to use them and otherwise they were on their own. Under these circumstances, the plaintiff has failed to establish by the preponderance of the evidence that Garrett was given permission either express or implied to use the vehicle. The facts in this case fall far short of reasonably supporting a conclusion that Garrett had permission either to operate or use this truck. Accordingly, the judgment of the trial court that Garrett was not insured under the omnibus clause of this policy is correct and it should be and it is hereby affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


text:
    Theodore Schenk, Plaintiff-Appellant, v. Nancy A. Schenk, Defendant-Appellee.
    Gen. No. 10,935.
    Fourth District.
    October 10, 1968.

      Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (Frank M. Brady and John Morel, of counsel), for appellant.
    Costigan and Wollrab, of Bloomington (William F. Costigan, of counsel), for appellee.
   SMITH, P. J.

This is a suit by a father against his seventeen-year-old, unemancipated daughter for injuries sustained when she negligently ran into him with an automobile while he was a pedestrian on the streets of Bloomington. Defendant’s motion to dismiss was allowed, plaintiff elected to stand on his complaint, and the trial court entered a judgment in bar of the suit. The trial court’s action was based on the proposition that absent any allegations of willful and wanton misconduct on the part of the defendant, no cause of action is stated. Both sides seem to agree that the judgment order so entered states the current law of this State. Simple disposition suggests that the doctrine of “stare decisis” be invoked and the judgment affirmed.

The facts are not in dispute. The alleged negligent acts in the operation of the motor vehicle did not arise out of any father-daughter or family relationship. The duty breached by the defendant in the operation of the automobile was the same duty owed by her to all pedestrians lawfully using the public street. Tort responsibility and civil liability would rest on this seventeen-year-old, unemancipated-minor defendant had the victim not been her father and mother. If the defendant can avoid this tort responsibility and civil liability, it is solely for the reason that she is her father’s daughter. The plaintiff earnestly and succinctly states his position in asserting “that the proposition that a parent or child cannot sue each other for ordinary negligence where the negligence arises out of activities which are not a part of a parental relationship is not a just law; that the numerous exceptions to this rule in other jurisdictions, and the existence of liability insurance and changes in social and economic reality require a reexamination of the rule, and said rule should not be the law of the State of Illinois.”

“Stare decisis” is a stalwart pillar in the judicial process and a worthy and respected proponent of stability in the law. Although it is not inviolable, our judicial system demands that it be overturned only on a showing of good cause. Where such good cause is not shown, it will not be repudiated. Heimgaertner v. Benjamin Elec. Mfg. Co., 6 Ill2d 152, 128 NE2d 691. Nevertheless, “stare decisis” has not been an insuperable barrier to a reconsideration of decisions or principles where adequate cause is shown and impelling changing conditions exist. Doggett v. North American Life Ins. Co., 396 Ill 354, 71 NE2d 686; Amann v. Faidy, 415 Ill 422, 114 NE2d 412; Bradley v. Fox, 7 Ill2d 106, 129 NE2d 699; Nudd v. Matsoukas, 7 Ill2d 608, 131 NE2d 525; Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89; Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. We would, therefore abjure our responsibilities as a reviewing court if we did not now turn to the question of whether the public policy enunciated in the parent-child immunity rule has now been dissipated and the rule thus emasculated.

The instant case used as its springboard the language of our Supreme Court in this area in Nudd v. Matsoukas, 7 Ill2d 608, 619, 131 NE2d 525, 531. The court said:

“Any justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit. While this policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship we do not conceive that public policy should prevent a minor from obtaining redress for willful and wanton misconduct on the part of a parent. . . .” (Emphasis supplied.)

The doctrine of parental immunity was court created and may be court destroyed. The public policy involved is the interest of the State in maintaining harmony, avoiding strife, and insuring a proper atmosphere of cooperation, discipline and understanding in the family. The rule and the reason for it was again expressed in Mroczynski v. McGrath, 34 Ill2d 451, 216 NE2d 137. Enunciated as it is in those instances where it is the child suing a parent, we see no persuasive reason why a like policy is not equally involved in a parent’s suit against the child for his tortious conduct. Those jurisdictions which deny it to the one deny it to the other and for the same reason of maintaining family harmony and parental discipline. 60 ALR2d 1284.

We see little justification for the conclusion that either the State or a court is or should be any less interested today in the peace, harmony, tranquility, discipline, cooperation, love and respect essential to good family relationship than when the family immunity rule was promulgated many, many years ago. Where the injury is inflicted by either the parent or the child through willful, wanton, intentional or criminal conduct, there is sound reason to believe that the harmony, peace, tranquility, discipline, cooperation and mutual respect in the home has already become eroded, if it is not entirely absent, and the invocation of the immunity rule is a dubious attempt to save that which is already lost. Indeed the lurking presence of civil liability in willful, wanton, intentional or criminal conduct of child toward parent or parent toward child might well serve as an additional deterrent in many instances to just such conduct. The reason for the rule being nonexistent, the rule disappears. Thus, Nudd seems to make it clear that there is no overriding public policy that bars recovery in these areas, but leaves open the question as to whether or not that overriding public policy yet remains in the area of ordinary negligence “within the scope of the parental relationship.”

The pleadings in this case do not bring us within the perimeter of any of the conduct discussed in the preceding paragraph. We necessarily turn then to the question as to whether or not the negligent acts here charged and the injury here sustained is conduct within or without the scope of the parental relationship. There is nothing in this complaint that suggests that the father in crossing the street or the unemancipated daughter in the operation of the motor vehicle were to any extent performing a duty arising out of the family relationship or engaged in any enterprise having for its purpose the furtherance of the family relationship. We are necessarily circumscribed by the allegations of the complaint. There are no facts alleged from which we can conclude directly or by reasonable inference that either party was engaged in conduct arising out of the parent-daughter relationship or in the furtherance of the usual family objectives. The determinative issue is thus narrowed to the question as to whether or not in a parent-child relationship the immunity rule should bar recovery for conduct wholly unrelated to the objectives or purposes of the family itself.

The doctrine of parental immunity for personal torts seems to have sprung full-grown from the sometimes fertile womb of judicial decisions. It was born in 1891 with Hewlett v. Ragsdale, 68 Miss 703, 9 So 885, a Mississippi case of false imprisonment which cites no authority and can only be justified by the judicial conclusion that litigation and strife between members of the family unit is reprehensible and contrary to public policy. From the time, however, of its general acceptance in this country, it has undergone a general erosion like the all-day sucker in the hands of a small child until there isn’t much left but the stick itself. To here cite in detail the many departures from the rule would extend this opinion to untold lengths. The divergent views and inconsistent holdings may be readily pursued by the citations contained in 19 ALR2d 423; 60 ALR2d 1284; Prosser, Law of Torts, 3d ed 1964, § 116, p 885. An examination of these authorities will indicate that some jurisdictions have held that the immunity rule has not been applied to property rights, contract rights, an emancipated child, wrongful death actions, suits between brothers and sisters, a stepfather, an adoptive parent, or a grandparent, to cases where the child is injured in the course of a business rather than a personal activity, and in suits involving willful, wanton, intentional or criminal conduct. If harmony and unity in the family is the public policy protecting the rule, it would seem to be present in these areas. Neither do we think that the existence or nonexistence of protective insurance is a sound basis for the determination of liability. It is at best an illogical expression of disenchantment with the immunity rule and a baseless escape valve for a refusal to impose that rule. From these observations, it is easy to conclude that the justification for the rule based on harmony, cooperation and family affection and its preservation is an excuse rather than a solid foundation for the rule. It would thus follow that since the reason for the rule is nonexistent, the rule itself should be interred. We do not reach this result.

In Mroczynski, our Supreme Court pointed out, we think, the sound reason for not repudiating the immunity doctrine in toto. This was a suit by an incompetent against his father’s estate and the wrongs complained of were “the destruction of the family unit and relationship terminating in the divorce, the denial of unstinted financial aid, accumulation of a large estate at the son’s expense, denial of a normal home, parental affection, care, comfort, companionship and the guidance of a normal father-child relationship, so as to willfully inflict severe emotional distress and mental suffering on him.” In Zepeda v. Zepeda, 41 111 App2d 240, 190 NE2d 849, cited with approval in Mroczynski, the Appellate Court said, “a legitimate child cannot maintain an action against his own parents for lack of affection, for failure to provide a pleasant home, for disrupting the family life or for being responsible for a divorce which has broken up the home,” and then denied recovery to an illegitimate child for the announced reason that it would be an incongruity to allow a recovery to an illegitimate child for such tortious acts and deny recovery to a natural and legitimate child. These cases are but illustrations of the danger involved and the flood of litigation that would be invited to unequivocally discard the family immunity rule. We therefore conclude that there are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes and objectives in those cases where it may be said that the carelessness, inadvertence or negligence is but the product of the hazards incident to inter-family living and common to every family. In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation. To hold otherwise is to inject into the courts a judicial supervision over everyday family conduct of parent and child, and invite endless litigation over what is or is not ordinary negligence in the operation of a household. The assumption of the role of paterfamilias by either the courts or State, except under most compelling circumstances, is foreign to our way of life.

The statement of these principles, however, does not preclude a holding that the complaint in the case at bar states a cause of action. As stated in Cooley on Torts, 2nd ed, p 276: “Where the child is injured in his own property or person redress has no necessary connection with the family relation.” The facts here charged occurred during the exercise by both the father and the child of his individual rights on the public streets and with no direct connection with the family relationship. It seems thus clear to us that reason and justice require that the immunity rule should not stand as an insuperable bar to redress for injuries occasioned by the exercise of those rights.

Accordingly, we hold that the complaint states a cause of action for tortious conduct having no direct family relationship and states a good cause of action. The judgment of the trial court is reversed and the cause remanded to that court with directions to vacate the judgment, deny the motion to dismiss, require the defendant to answer, and for further proceedings in conformity with the views herein expressed.

Reversed and remanded.

TRAPP and CRAVEN, JJ., concur.


text:
    Oscar D. Brissenden, as Successor Trustee Under the Last Will and Testament of Mary H. Babcock, Deceased, Plaintiff-Appellee, v. Joseph S. Babcock, et al., and the American Red Cross, a Corporation, Defendants-Appellees, The Salvation Army, a Corporation, Defendant-Appellant.
    Gen. No. 10,948.
    Fourth District.
    October 10, 1968.
    Rehearing denied November 13,1968.
    Niven and Clay, of Pontiac (Alonzo William Clay, of counsel), for appellant.

      Irving Goodman, of Chicago, Fellheimer & Fellheimer, and Ortman, Johnson & Taylor, of Pontiac, for appellees.
   SMITH, P. J.

In essence, the issue before us is one of construction. Other avenues have been suggested for resolution, some rather attractive, but we shun to travel them for the very simple reason that we lack an imprimatur in the record. Upon argument exploration of such avenues seemed worthwhile and we suggested and received supplementary briefs directed to a possible disposition by way of res judicata, consent or estoppel. Whatever momentary appeal these doctrines had has now vanished for, as we have said, the right context is absent on which they might be premised. It is beside the point that the parties might have made it right had they wanted to.

Before setting out the language which we must construe, a brief résumé of the limited context which we have is appropriate. A trust created by will provides that the income from the estate is to go to certain persons for their lives, but for no longer than fifty years. Upon termination whether through the expiration of such period or the death of the last survivor, the estate passes to the Salvation Army and the American Red Cross. The real estate comprising the trust is adaptable for quarrying purposes and in 1945 the trustee advised the court that he had a written offer to lease the real estate for such purpose. This right was contested. In 1956, the trustee, the life beneficiaries and the remaindermen, the Salvation Army and the American Red Cross entered into a stipulation authorizing the trustee to execute a lease. Following the filing of the stipulation, a consent decree was entered authorizing the trustee to negotiate a lease, which he promptly did and the same was approved by the court early in 1957. Since then, we are told, the trustee has made periodic accountings, but the only accounting we are concerned with is his report for the period January 1, 1967-June 30, 1967. The order approving this account over the objections of the Salvation Army is now before us. These objections take aim at deductions by the trustee for his fee and that of his attorney. Specifically, the trustee for the period involved received $22,649.35 from the lessee, and the Salvation Army contends that it is entitled to its proportionate share thereof absent such deductions, that is, his stipulated percent, nothing more, nothing less. We are not concerned with the reasonableness of the fees nor their rectitude as such, only who should pay them, or more correctly, who need not. A determination depends upon the meaning of the following excerpted paragraphs of the stipulation.

“(d) That 50% of the net consideration so received during the period beginning January 2, 1967, and ending December 31, 1977 (if the trust shall so long continue), shall be distributed by the trustee, share and share alike, to American Red Cross and to the Salvation Army; and that the remainder of such net consideration shall be treated as income, and shall be distributed by the trustee, under the direction of the Court, to those persons entitled to the income from said trust under the terms of the will of the late Mary H. Babcock.
“2. In computing net consideration, for the purpose of determining amounts payable to the American Red Cross and to the Salvation Army, no Federal income tax which may be paid, or payable, by the trustee shall be deducted from the gross consideration received by the trustee.”

If the (d) paragraph stood alone we might be inclined to agree with the Salvation Army. The word “net” would seem to relate to deductions which the lessee might take— the “net consideration so received,” and that after being so received, the trustee is to do nothing more than transmit 25% thereof to the Salvation Army. We say we are inclined to this view, but not necessarily — it is not the most reasonable interpretation, but regardless of that, we must read this text in the context of the second quoted paragraph.

It is not uncommon for terms in a contract to be defined and it seems to us that we have such here though imperfectly expressed. In other words, we must infer from these paragraphs the propriety of these deductions, as their propriety is not expressly stated — but almost. However, the implications are clear — so clear, in fact, that one might quibble that they are not express, but we will stand by our earlier characterization that if express, their expression is imperfect.

As nouns, the “net” is that which remains after deductions from “gross,” or “gross” is an amount before deductions are taken to arrive at “net.” Their adjectival meanings are the same. The everyday definition of “net,” whether used with “consideration,” “profit,” or “income,” is the consideration, profit, or income remaining after all charges and deductions, and the “gross consideration,” “profit,” or “income,” is the consideration, profit or income before charges and deductions. Used here as an adjective the implication is surely that deductions are contemplated after the trustee receives the rentals and before he passes along the “net” to the Salvation Army, the American Red Cross and others. In fact, as we have said, the second paragraph almost, but not quite, says just that. It says that the trustee will receive from the lessee a “gross consideration” and that in determining the amount payable to the Salvation Army, no Federal income tax “which may be paid, or payable” shall be deducted by the trustee from such “gross consideration” — and does this not at the very least imply that there will be other deductions ? A direction to the trustee not to deduct something, carries with it the implication that there will be deductions. A fortiori, a direction to a trustee not to deduct something “in computing net consideration,” clearly expresses that there will be computations and if you are not to deduct something in making the computation, the implication is clear that there must be other deductions— and these deductions here will come from “gross consideration received by the trustee,” and what is left, is “net consideration.” The current account before us shows no amounts paid for Federal income tax, hence if we were to accept the argument of the Salvation Army, they would be entitled to the “gross consideration received by the trustee,” but the language here negates that, for it says that there will be a computation to determine “net consideration, for the purposes of determining the amounts payable to” the Salvation Army.

The trustee here is directed to make a computation with regard to a thing called “gross consideration,” and the purpose of the computation is to determine the “net consideration.” To get from gross to net involves deductions from gross; but the trustee is not to deduct from gross any amounts “paid or payable” for income taxes. He is thus not a mere “conduit,” as the Salvation Army would have us believe. If he was to be a “conduit,” it would have been easy to have said, “No deductions shall be made by the trustee for any purposes from the amount so received from the lessee.” Instead of this, the stipulation says that the trustee, “In computing net consideration, for the purpose of determining amounts payable” to Salvation Army “no Federal income tax” paid or payable “shall be deducted from the gross consideration by the trustee.” If the trustee is a mere remittance-man, why direct him to make a computation for the purpose “of determining amounts payable” to Salvation Army? We are bound by the words the parties chose. The trustee correctly computed “net consideration” for the purpose of determining the amount payable to the Salvation Army and its objections were properly overruled. The order approving the current account of the trustee is affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


author: MORAN, J.

text:
    Virginia M. Johnson, Plaintiff-Appellant, v. North American Life and Casualty Company, Bruce C. Johnson, Beverly M. Johnson, June M. Johnson, Guardian of the Estates of Bruce C. Johnson and Beverly M. Johnson, Minors:, Defendants-Appellees.
    Gen, No. 68-25.
    Fifth District.
    October 11, 1968.

      D. E. Furnall, Craig and Craig, of Mt. Vernon, for appellant.
    Elmer Jenkins and Robert S. Hill, of Benton, for appellees.
   MORAN, J.

Plaintiff appeals from an order of the Circuit Court of Franklin County dismissing her complaint for failure to state a cause of action in a cause initiated in chancery against the beneficiaries named in a life insurance policy by plaintiff’s deceased husband and against the insurer, to establish the equitable interest of the plaintiff in the proceeds of the policy.

In substance, the complaint alleges that the plaintiff and Richard M. Johnson were married on December 3, 1963, and continued to live together as husband and wife until Dr. Johnson’s death on June 10, 1967. On or about December 20, 1963, Johnson named plaintiff beneficiary of an insurance policy on his life bearing No. L782342 issued by defendant, North American Life and Casualty Company and informed plaintiff of his designation of her as beneficiary.

In January of 1964, Johnson and the plaintiff opened a joint bank account for use in handling household expenses. A project to remodel the Johnsons’ residence was commenced in March, 1964, and plaintiff “with the acquiescence of Richard M. Johnson and the knowledge both on the part of Richard M. Johnson and plaintiff that plaintiff was beneficiary on said policy of insurance, and would thereby be adequately protected,” deposited her separate funds in the joint account from time to time and her total deposits exceeded $30,000.

In December of 1964, the plaintiff adopted the two minor children of the insured and the insured adopted plaintiff’s two minor children.

Johnson had become ill in November of 1964 and his health progressively deteriorated until he died in June of 1967. During this period, plaintiff maintained the home, traveled with Dr. Johnson in search of medical treatment, and learned to operate a “kidney machine” and used it for the treatment of her husband, which required six hours of continuous attention twice a week for more than a year.

Prior to January 4, 1966, Johnson had from time to time borrowed sums from the Bank of Benton at Benton, Illinois, on his personal signature, but on January 4, 1966, when he applied for the loan of additional sums to defray forthcoming expenses, the officers of the bank requested that his note be secured by a mortgage on his home and that plaintiff join in the execution of the note. Plaintiff signed both the mortgage and the note and thereby became personally liable for $31,300.

“On January 3, 1966, the day preceding the date plaintiff executed the note . . . , Richard M. Johnson requested a ‘Change of Beneficiary’ again naming plaintiff as the beneficiary of the insurance policy . . . and informed plaintiff that he had executed this instrument.” The insurance policy has been in plaintiff’s possession since on or about January 1,1966.

The insured, in December, 1966, changed the beneficiary under the insurance policy to his minor natural children, Bruce C. Johnson and Beverly M. Johnson, without plaintiff’s knowledge or consent. Also at that time, “the only assets of Richard M. Johnson consisted of the real estate . . . which was subject to a mortgage in favor of the Bank of Benton to secure the indebtedness of $31,300.00, his office equipment and his automobile, and at that time he knew that he would have continuing and heavy expenses for treatment of his illness with limited income available to him to defray such expenses, and at the time of death of said Richard M. Johnson his total indebtedness exceeded his assets and he was insolvent.”

The complaint concludes with a prayer that the court decree that plaintiff is equitably entitled to the proceeds of the insurance policy. The policy in question, attached to the complaint by amendment contains a provision giving the insured the right to change beneficiaries successively.

Plaintiff-Appellant contends that the complaint shows the existence of a contract, express or implied, which obligated the insured to leave plaintiff as beneficiary and she thereby became vested with an equitable interest in the policy.

There is little doubt that equities may arise in favor of the beneficiary named in a life insurance policy which will deny the insured the right to change the beneficiary even though such right is reserved to the insured, as, for example, where the insured, for a valuable consideration, estops himself from changing his designation of the beneficiary. 29A Am Jur, § 1676. “The rule in this state is, that while the assured may, in the absence of intervening equities, change at will the beneficiary named in his insurance policy, equitable rights may be acquired in a beneficiary certificate of insurance which a court of equity will recognize and enforce.” Columbian Circle v. Mudra, 298 North American Life and Casualty Co 599, 601, 132 NE 213. In the Mudra case, supra, the Supreme Court affirmed the chancellor’s determination that the insured was estopped from removing the plaintiff as beneficiary under a life insurance policy without plaintiff’s consent where the evidence disclosed that the insured delivered the insurance policy to the plaintiff and, at his request, plaintiff paid the premiums thereafter.

Numerous other cases have recognized equitable relief where an agreement can be proven between the insured and the designated beneficiary whereby for a valuable consideration the beneficiary acquires a vested equitable interest in the insurance proceeds. Kiolbassa v. Polish Roman Catholic Union of America, 141 Ill App 297; Gillham v. Estes, 158 Ill App 211; Supreme Council of Royal Arcanum v. McKnight, 238 Ill 349, 87 NE 299.

The question here, however, is whether plaintiff has pleaded sufficient allegations to invoke equitable relief under the accepted theories of recovery. “A motion to dismiss admits all facts well pleaded as well as all reasonable inferences therefrom favorable to the plaintiff.” Bishop v. Ellsworth, 91 Ill App2d 386, 234 NE2d 49, 52. If, on the basis of the alleged facts and all reasonable inferences drawn therefrom, standing alone and uncontested, there exists any possibility of recovery, the order of dismissal must be vacated. Palier v. New City Iron Works, 81 Ill App2d 1, 225 NE2d 67; Federal Savings & Loan Ins. Corp. v. Quinn, 81 Ill App2d 299, 225 NE2d 693.

Having brought this action in equity, plaintiff’s complaint must show that no adequate remedy at law exists. ILP, Vol 7, Chancery, § 176; Burr v. State Bank of St. Charles, 344 Ill App 332,100 NE2d 773. Contrary to defendants’ contentions, we believe that the complaint does show the absence of an adequate legal remedy. The object of plaintiff’s complaint, as recited in her prayer for relief, is not to obtain a mere money decree, but to reach a particular fund, namely, insurance proceeds, in which plaintiff alleges she has a vested interest. Under these circumstances courts of chancery have jurisdiction since the plaintiff is effectively requesting enforcement of a trust in her favor, not unlike those cases where equity has intervened to enforce alleged equitable assignments of particular funds. See Smith v. Bates Mach. Co., 182 Ill 166, 55 NE 69; Phillips v. Edsall, 127 Ill 535, 20 NE 801.

Furthermore, while defendants suggest that plaintiff may have a legal remedy directly against her deceased husband’s estate, the fact that a remedy at law is available does not oust an equity court of jurisdiction. The question to be determined is whether the remedy at law compares favorably with the remedy afforded by the equity court. Plaintiff alleges that at his death, Richard M. Johnson was insolvent. Taking this allegation as true, it is a reasonable inference that any judgment at law procured by plaintiff against her husband’s estate would not be efficacious. Such a consideration is significant in exercising equitable jurisdiction. 27 Am Jur2d, Equity, § 98; Lyman v. Suburban R. Co., 190 Ill 320, 60 NE 515.

Defendants point out that nowhere in plaintiff’s complaint is there a specific and express allegation of offer and acceptance pursuant to an agreement with respect to moneys advanced or services rendered by plaintiff to her husband. They observe that any services rendered by one family member to another are presumed by the law to be gratuitous as well as any advances made by a wife to her husband, of her separate funds. People v. Porter, 287 Ill 401,123 NE 59; Spalding v. Spalding, 361 Ill 387, 198 NE 136.

While these contentions are true, it is also quite true that since a wife holds her property separate and apart from that of her husband, she is free to contract or dispose of her property and services as she sees fit. It cannot be doubted that the moneys allegedly advanced and services rendered by plaintiff could provide the valuable consideration for an implied promise by the insured to retain plaintiff as the exclusive beneficiary under the insurance policy in question. Though no express allegation of offer and acceptance is made in plaintiff’s complaint, such inference is reasonable when the complaint is read as a whole and particular attention is given to the transactions of January 3 and 4, 1966. Plaintiff alleges that on January 3, 1966, the insured requested a change of beneficiary and again named plaintiff as recipient of the policy proceeds. The very next day plaintiff allegedly complied with her husband’s request that she sign a promissory note to the Bank of Benton thereby obligating herself for the payment of a substantial sum.

Further, the very fact alleged by plaintiff that she had possession of the insurance policy since January 1, 1966, raises the question whether a delivery was made. Since such an inference is reasonable under the circumstances alleged in the complaint, additional force is added to plaintiff’s theory of recovery.

Pleadings should be designed to advise the court and the adverse party of the issues and what is relied upon as the cause of action, so that the court may declare the law and the adverse party may be prepared on trial to meet the issues. Hyland v. Waite, 349 Ill App 213, 110 NE2d 457. The pleader need not state the legal conclusion to be drawn from the facts, where specific facts are set out in a pleading, “as the law would infer them from the direct statement of facts.” Leitch v. Sanitary Dist. of Chicago, 369 Ill 469, 473, 17 NE2d 34. While the instant complaint may initially appear confusing because of the absence of express statements charging the inadequacy of available legal remedy and the existence of contractual offer and acceptance, yet facts are alleged from which these conclusions may be inferred.

Under the alleged facts, while plaintiff has not established his claim with certainty, it is possible that evidence could be introduced upon which the trier of fact could conclude that plaintiff is entitled to recovery. It is sufficient that the complaint set forth facts establishing the mere possibility of recovery. Palier v. New City Iron Works, supra. The collective force of the allegations in the present complaint suggests that an implied in fact agreement may have existed between plaintiff and Richard M. Johnson whereby for a valuable consideration, the insured promised not to remove plaintiff as beneficiary under his life insurance policy, that plaintiff thereby acquired a vested equitable interest in the policy proceeds, and that the purported change of beneficiary in December, 1966, was a fraud on plaintiff’s equitable rights.

For the foregoing reasons the order of dismissal of plaintiff’s complaint for failure to state a cause of action is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: GOLDENHERSH, J.

text:
    Frances Elble, Now Frances Heuer, Plaintiff-Appellee, v. James Elble, Defendant-Appellant.
    Gen. No. 67-109.
    Fifth District.
    October 12, 1968.

      Emerson Baetz, of Alton, for appellant.
    Irving M. Wiseman, Wiseman, Hallet, Mosele, Shaikewitz & Struif, of Alton, for appellee.
   GOLDENHERSH, J.

Defendant, James Elble, appeals, and plaintiff, Frances Heuer, formerly Frances Elble, cross-appeals from the order of the Circuit Court of Madison County entered upon plaintiff’s petition to modify the decree of divorce previously rendered and entered in this cause.

The record shows that on March 18, 1955, the circuit court granted defendant a divorce on his counterclaim and awarded him custody of Gail Lynn, the 5-year-old daughter of the parties, hereafter called Gail.

In December 1966, plaintiff filed a petition to modify the decree and alleged therein that “during the past few years” Gail has resided with plaintiff, and plaintiff has provided for her “special needs and attention, education and religious training and guidance.” Plaintiff also alleged that she is a fit person to have custody, Gail desires to live with her, defendant has paid very little child support during the time Gail lived with her mother, and defendant is unfit to have custody of Gail “by reason of his ignoring” her welfare. The petition prays that plaintiff be awarded custody, that defendant be ordered to pay reasonable support money and provide for her college education.

Defendant answered the petition, denying the material allegations and stating further that plaintiff had “defied orders of this court respecting custody of the child,” that it has become impractical, if not impossible, physically to coerce Gail to remain with him, that to “maintain peace” he has allowed her a wider latitude in association with plaintiff but because of “plaintiff’s habits, manner of life and associations” it would be hazardous to Gail’s welfare to vest absolute control of her in the plaintiff and “to deprive him of legal custody and the consequent right to exercise some degree of restraint in connection with her upbringing.”

The trial court heard testimony and filed a comprehensive memorandum and order.

In the memorandum the court stated that although Gail had chosen to leave her father and live with her mother, the evidence failed to show a change of circumstances which would warrant a modification of the provision of the decree awarding her custody to the defendant. It denied plaintiff’s petition for a change of Gail’s custody but stated that it could not, and would not, “force a 17-year-old girl to live with her father if she does not desire.” The defendant was ordered to pay plaintiff $100 per month for Gail’s support during her minority, and an attorney’s fee in the amount of $150. In the order the court stated that although it was in its discretion so to do, it would not, under the circumstances shown by the evidence, order defendant to provide for Gail’s college education.

Plaintiff appeals from those portions of the order which continue custody in defendant, deny the prayer for provision of a college education, and from the support money order, arguing that in view of defendant’s wealth and income the sum ordered is inadequate.

Defendant appeals from the portions of the order which provide for payment of support money and an attorney’s fee, and from the court’s holding that it was vested with discretion to require a divorced parent to provide for the college education of his child beyond attainment of the child’s majority.

Defendant’s principal argument for reversal is that in view of the trial court’s denial of the prayer for a change in the custody order he should not be required to pay support money, and in ordering him to do so, the court, in effect, confirmed the unlawful custody and control being exercised by plaintiff.

In reviewing an award of custody of a minor child we are governed by the rule stated in Miezio v. Miezio, 6 Ill2d 469, at page 472, 129 NE2d 20: “In awarding custody of minor children to one parent or the other, the paramount consideration must necessarily be the welfare and best interest of the children. (Nye v. Nye, 411 Ill 408; Buehler v. Buehler, 373 Ill 626.) Although the discretion of the trial court in matters relating to the custody and support of minor children is a judicial one "and subject to review. (Nye v. Nye, 411 Ill 408,) the determination should not be disturbed upon appeal unless manifest injustice has been done.”

From our review of the record we find no change of circumstances since the entry of the decree which would require a reversal of the court’s denial of a change in Gail’s custody. The fact that Gail now prefers to live with her mother is not sufficient to warrant a transfer of custody. Stickler v. Stickler, 57 Ill App2d 286, 206 NE2d 720; Strouse v. Strouse, 75 Ill App2d 362, 220 NE2d 485.

The Appellate Court has previously considered the question of whether a court may include in a divorce decree, an order directing a parent to pay the expenses of a child’s college education. (See Strom v. Strom, 13 Ill App2d 354, 142 NE2d 172; Maitzen v. Maitzen, 24 Ill App2d 32, 163 NE2d 840; O’Berry v. O’Berry, 36 Ill App2d 163, 183 NE2d 539; Crane v. Crane, 45 Ill App2d 316, 196 NE 27; 1962 Law Forum 612.)

Since the amendment to section 19 of the Divorce Act (c 40, § 19, Ill Rev Stats) effective August 31, 1967, there appears to be no question that such order may be entered with respect to both minor children and children who have attained majority.

The rule stated in Miezio applies to the review of both the trial court’s refusal to order defendant to provide for Gail’s college education, and the order fixing the amount of support money. From our examination of the testimony with respect to the wealth and earnings of the defendant, we cannot say that manifest injustice has been done.

Defendant’s contention that the trial court erred in ordering him to pay support money while Gail continues to reside with her mother presents a difficult question. In the first reported decision involving custody of a child, (see First Kings 3:16), Solomon, vested with plenary powers and unhampered by precedent, rendered a judgment which has been cited through the ages as incontrovertible evidence of his great wisdom. Today, a trial judge is almost daily presented with custody problems which are far more complex. (See Dokos v. Dokos, 88 Ill App2d 330, 232 NE2d 508; Jenkins v. Jenkins, 81 Ill App2d 67, 225 NE2d 698.)

In Jenkins v. Jenkins, 81 Ill App2d 67, at page 71, 225 NE2d 698, the Court said: “It must be emphasized that custody cases present among the most vexing and difficult situations facing a trial judge in the discharge of his duties. Generally, no decision a court makes in such cases can be considered either “right” or “wrong.” The responsibility of a judge is, instead, to exercise his own best judgment in attempting to find the most satisfactory solution under all the circumstances in each case.”

We have considered defendant’s contention based on Iroquois Iron Co. v. Industrial Commission, 294 Ill 106, 128 NE 289, and are of the opinion that the holding in that case is not pertinent to the facts here presented.

We are sympathetic to defendant’s argument that he has the burden of support without the concomitant benefits of having Gail reside with him in his home, but this does not affect his duty to support her. As stated in Kelley v. Kelley, 317 Ill 104, at page 110, 147 NE 659: “The obligation of the father to support his children begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. (Plaster v. Plaster, supra, 47 Ill 290.) His children are of his blood.

“It is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into the world until they are old enough to take care of themselves.”

Section 19 of the Divorce Act provides that the court may make such order for the care, custody and support of the children as from the circumstances of the parties and nature of the case shall be fit, reasonable and just. The language of the statute is broad enough to permit the entry of the order of the trial court.

From our review of the record and the authorities we are of the opinion that the trial court found the most satisfactory solution available under the circumstances of this case.

Defendant has not briefed or argued the question of the order for payment of an attorney’s fee, and therefore, it will not be further considered.

For the reasons set forth the order of the Circuit Court of Madison County is affirmed.

Order affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael Machroli, Defendant-Appellant.
    Gen. No. 51,338.
    First District, First Division.
    October 14, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Constantine P. Xinos and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Michael Machroli, was indicted for aggravated battery (Ill Rev Stats 1967, c 38, § 12-4) and unlawful possession of narcotics (Ill Rev Stats 1967, c 38, § 22-3). The two indictments were consolidated and tried together without a jury. The court found the defendant guilty and sentenced him to the penitentiary for one to five years on each of the two counts of aggravated battery and five to seven years for unlawful possession of narcotics. All sentences were to run concurrently.

On appeal, the defendant contends (1) that the State failed to prove him guilty of aggravated battery against the person of Sharie Bianca beyond all reasonable doubt; (2) that his motion to suppress a white box and three tablets should have been sustained; and (3) that he was not proven guilty of possession of narcotics beyond all reasonable doubt.

We summarize the evidence. Mrs. Sharon Bianca, a widow, testified that she, her two daughters, Sharie, age two, and Rosemarie, age five, and the defendant lived in a basement apartment at 3418 LeMoyne in Chicago. She stated that on the morning of January 7, 1966, shortly after the defendant had awakened, he became extremely upset about the fact that most of the pudding he had made the night before had been eaten. Although she told the defendant she had eaten the pudding, he blamed the children. The defendant then grabbed one of the children, Sharie, and began slapping her with his open hand. Mrs. Bianca was unable to remember where defendant slapped Sharie, but said that it was with sufficient force to knock the child down and make her cry. Mrs. Bianca further testified that the defendant complained that one of the children had been playing with his cigarette lighter. He accused Rosemarie and when the child denied the accusation he said she was lying. At that point, Mrs. Bianca said she heard her daughter, Rosemarie screaming. When Mrs. Bianca entered the bedroom she saw Rosemarie lying on the bed, a doll in defendant’s hand, and a red mark on Rosemarie’s leg. Mrs. Bianca then stated that for a while calm returned to the apartment, but suddenly the defendant started jabbing Sharie in the ribs with the end of a spoon. When she tried to intercede on behalf of her daughter, the defendant attacked her with a stool and as a result of the beating Mrs. Bianca sustained four fractured ribs. Mrs. Bianca became afraid that the defendant would cause Sharie permanent harm and ran to her mother’s apartment to tell her mother to call the police. Mrs. Bianca stated that Rosemarie had a bruise on her thigh and Sharie had bruises on her face, her forehead, on her back, and on her side by her ribs. She identified several photographs taken of her and Sharie at the police station, which she said accurately showed the extent of their injuries. On cross-examination, Mrs. Bianca testified that Sharie usually falls and bumps into things and that the bruise on Sharie’s forehead was caused the day before the incident with the defendant. She also stated, when cross-examined, that she did not want to prosecute the defendant.

Police Officer, Roy Handler, testified that he answered a police call at 3418 West LeMoyne in Chicago on the day in question. When he arrived he found the defendant cornered by Mrs. Bianca, her mother and her grandmother. He stated that he observed multiple bruises on Sharie’s back and on the side of her head. The officer also noticed that Rosemarie had a bruise on her thigh. He then arrested the defendant.

Michael Machroli, the defendant, testified that on the morning in question he had tried to wake Mrs. Bianca in order that she could take her daughter, Sharie, to the doctor to get the child’s eyeglasses. After giving up the attempt to rouse Mrs. Bianca, the defendant went into the kitchen and found the two girls playing with matches and his lighter. The defendant said he scolded the girls for playing with fire and spanked them. He admitted slapping Sharie about three times, but he did not recall how hard. When Mrs. Bianca got up she was very irritated about his spanking the children, he said, and she started yelling and screaming. He denied that he ever jabbed Sharie with a spoon or that he struck Mrs. Bianca with a stool.

The defendant argues that his status in Mrs. Bianca’s household cast him in the role of loco parentis, and within that capacity, he had the right and duty to discipline Sharie. Secondly, he argues that even if his conduct was outside the protection of loco parentis status, the evidence presented by the State was insufficient to convict him of aggravated battery.

Even if the defendant stood in loco parentis to Sharie Bianca the force he used in reprimanding the child was far beyond the acceptable standards of parental conduct. The beating applied to Sharie went far beyond reasonable force allowed under Illinois law. The defendant claims that the injuries inflicted on Sharie did not constitute aggravated battery since there was no breaking of Sharie’s skin, no injury to her bones, and no disfigurement or permanent injury of any kind. However, section 12-4 of the Criminal Code (Ill Rev Stats 1967, c 38, § 12-4) provides that “ [a] person, who, in committing a battery, intentionally or knowingly causes great bodily harm . . . commits aggravated battery.” What constitutes “great bodily harm” is a question of fact to be determined by the judge or jury. People v. Cavanaugh, 18 Ill App2d 279, 289, 152 NE2d 266.

In the case at bar, the trial judge not only heard the testimony of the complaining witness as to the charge of aggravated battery, but also observed the condition of the child in the pictures taken at the police station on the same day. It is well settled in Illinois that because a trial court as the trier of the facts is peculiarly suited to determine questions of truthfulness, a reviewing court will not readily substitute its own conclusions unless the proof is so unsatisfactory as to justify a reasonable doubt of guilt. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Woods, 26 Ill2d 582, 187 NE2d 692. Thus, we cannot say as we must to reverse that the proof was so unsatisfactory as to justify a reasonable doubt of guilt.

The second of the defendant’s three contentions concerns the motion to suppress a white box and three tablets offered in evidence by the State. The defendant does not dispute that he was lawfully arrested on charges of aggravated battery, but argues that the warrantless search that turned up the narcotics was illegal in that it was not conducted contemporaneously with and incidental to the arrest.

At the pretrial hearing on the motion to suppress, the defendant testified that when he was arrested in Mrs. Bianca’s apartment, a police officer handed him his clothes and that after he had put them on he was taken to the police station. The defendant said he did not know that he was charged with illegal possession of narcotics until four days after his arrest on the battery charge. He also stated he did not remove anything from his pants after they were handed to him by the arresting police officer.

Officer Roy Handler testified that when he arrived in the apartment the defendant was sitting in his underwear in the bedroom. After placing the defendant under arrest he handed the defendant his trousers. Before the defendant came out of the bedroom the officer stated that he observed the defendant remove a box from his pants pocket and saw him place it on a dresser in that room. Officer Handler said he picked up the box and found three small tablets inside. When the officer asked the defendant what he did with the pills, the defendant replied that “he takes them.” On cross-examination the officer said he had not searched the trousers before giving them to the defendant and he did not know what was in the box at the time of the arrest. Officer Handler further testified that the defendant admitted the pills were his while in the police car. At the conclusion of this testimony the Court denied the motion to suppress.

It is well-settled law that observation of that which is open to view does not constitute a search, so that seizure of articles in plain view cannot be considered unreasonable. People v. Tate, 38 Ill2d 184, 230 NE2d 697; People v. Davis, 33 Ill2d 134, 210 NE2d 530; People v. McCracken, 30 Ill2d 425, 197 NE2d 35. A search implies a prying into hidden places for that which is concealed. People v. Woods, 26 Ill2d 557, 188 NE2d 1. In People v. Davis, the defendant was arrested for two traffic violations. As the defendant got out of his car to produce his driver’s license, the arresting police officer noticed a tinfoil packet in plain sight on the floor of the car. The officer reached into the car, picked up the packet, cracked it open, and found that it contained white powder which was later identified as a narcotic drug. The court held that “ [a] s to the first tinfoil package seized by the police officer, there was obviously no search.” People v. Davis, 33 Ill2d 134, 138, 210 NE2d 530. Officer Handler in the case at bar did no more than was done in the Davis case. He saw the defendant place a small white box on a dresser, he then picked up the box, opened it, and found three tablets which were later identified as narcotic. We cannot say that the seizure of the white box and tablets in the instant case was any more unreasonable than the seizure of the tinfoil packet in Davis and thus hold that the defendant’s contention is without merit.

The defendant’s third and last contention involves whether he was proven guilty of possession of narcotics beyond all reasonable doubt. In support of this contention the defendant maintains that Officer Handler’s testimony that he did not search the defendant’s trousers, that he saw the defendant take a box out of his trousers and place it on the dresser, and that he pocketed the box and took it with him to the police station, is incredible and unbelievable. It is defendant’s argument that Officer Handler did search the trousers, did not find anything resembling narcotics, and that the box and pills introduced into evidence as narcotics were taken when two other officers returned to the apartment after the defendant had been charged with aggravated battery and jailed.

The record shows that Officer Handler testified that he observed the defendant take a white box out of his trouser pocket and place it on the dresser. Officer Handler also testified that he looked in the box and found three pills inside and that when he asked the defendant if they were his the defendant replied they were. Officer Handler further testified that the box containing the pills was inventoried and that he and another officer took the box and pills in a sealed package to the crime laboratory for analysis. The box and three pills were offered and received in evidence and were the only narcotics offered by the State.

Mrs. Bianca was recalled as a defense witness and testified that two policemen came to her apartment after the defendant had been taken to the police station. She said she gave the officers some drugs that were hidden under a chess board. It is this testimony that gives rise to the defendant’s contention that Officer Handler searched the defendant’s trousers, found nothing and that the narcotics offered and received in evidence were taken from the apartment after the police had arrested and removed the defendant. However, Mrs. Bianca also testified while a defense witness that the box she gave the police when they returned to her apartment was not the same one in evidence.

The record clearly discloses that the only narcotic exhibit offered by the State was the box and its contents taken from the dresser after the defendant had removed them from his trouser pocket. Apparently, the other box testified to by Mrs. Bianca to have been taken from the apartment by the police officers, after the defendant’s removal to the police station, was not offered as an exhibit against the defendant and was not considered by the trial court. Whether Officer Handler was to be believed or whether his testimony should be characterized as unreasonable and contrary to human conduct, as urged by the defendant, was a matter for the trial judge to determine. Where a cause is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge. We will not substitute our judgment for that of the trial judge even though evidence regarding a material fact is conflicting and is irreconcilable. People v. West, 15 Ill2d 171, 154 NE2d 286. Where there is sufficient evidence to support the decision of the trial judge, as is the situation here, a reviewing court will not disturb the conviction.

For the reasons given the judgment of the Criminal Division of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.