author: JUDGE SCHWARTZ

text:
    Warshawsky v. American Automotive Products Co.
    Gen. No. 46,793.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.

      Sidney J. Goldstein and Charles A. Greenstein, both of Chicago, for appellant.
    McKay & Krulewitch, of Chicago, for appellee; Dwight McKay and H. B. Krnlewitch, both of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Plaintiff obtained judgment by confession for rent due for the month of May 1955 pursuant to a lease executed February 23, 1954 for a term expiring April 30, 1957. Defendant moved to vacate the judgment and in support thereof filed its verified petition. The court sustained plaintiff’socontention that the petition did not set up a meritorious defense to the judgment and denied the motion. From this order defendant appeals. The premises and the use thereof are described and stated in the lease as:

“The one story brick garage building known as numbers 11-15 West Cullerton Street, to be occupied for manufacturing, assembling and shipping of automotive parts, and for no other purpose whatsoever.”

The question involved is whether the use of the premises as set forth in the lease is contrary to the zoning ordinance and if so whether this is a defense to an action for rent. In this latter respect it is a matter of first impression in Illinois.

In its petition defendant alleges that it was contemplated by the parties that the lessee, being engaged in the business of manufacturing automotive parts, including bearings and housings, and using heavy machinery therefor, would use the premises for that purpose. The district was zoned for commercial use which, it is alleged, does not permit the operations engaged in by defendant (Chicago Mnn. Code, Ch. 194A — 11). Defendant alleges it did not know this until March 4, 1955, when a city building inspector or attorney notified defendant that the use being made of the premises violated the zoning ordinance. Defendant, without waiting for any formal notice or other action by the city, vacated the premises April 30, 1955 and tendered possession to plaintiff. On June 6, 1955, more than a month after defendant had vacated the premises, it received a written notice of violation from the city. The petition alleges that plaintiff “knew or should have known” that the use to be made of the premises would violate the zoning ordinance.

Plaintiff’s answer is that under the zoning ordinances uses could be made of the premises which would constitute permissible uses under the terms of the lease, that there has been no judicial determination that the uses which were made by defendant of the property were in violation of the zoning ordinance and that a lease is not invalidated because one of the uses defined is prohibited by statute or ordinance.

The lease restricts the use of the premises to “the manufacturing, assembling and shipping of automotive parts, and for no other purpose whatsoever.” The zoning ordinance permits limited manufacturing in a commercial district where the operations are carried on within a building and in a manner not injurious to adjacent premises. (Chicago Mun. Code, Ch. 194A — 11.) So far as it appears relevant to the present case uses are permitted in a commercial district as follows:

(a) Assembling or storage of electrical appliances, radios and phonographs;

(d) Manufacturing, processing, assembling or storing of clay or glass products, provided that kiln capacity does not exceed 200 cubic feet and the kiln is fired only by oil, gas or electricity;

(e) Manufacturing, processing or storing of merchandise from the following finished products: bone, celluloid, cloth, cork, feathers, felt, fibre or paper, fur, hair, horn, leather, precious or semi-precious metals, precious or semi-precious stones, rubber, shell, yarns.

Defendant avers that “automotive parts” is a technological term which is to be distinguished from automotive accessories and that automotive parts are those parts which are an integral or component part of an automobile. It cites a case construing the federal excise tax — Universal Battery Co. v. United States, 281 U. S. 580, 50 S. Ct. 442, 74 L. Ed. 1051. There the word “part” was construed as meaning an article designed or manufactured for the special purpose of being used as a component part of an automobile and “is not such a commercial article as ordinarily would be sold for general use, but is primarily adapted for use as a component part of such vehicle.” An accessory “is designed to be used in connection with such vehicle to add. to its utility or ornamentation.” Other definitions are given which for our purpose are not relevant. Even if we adopt this distinction, it is obvious that many automotive parts such as glass products, cloth and fibre may be made in a district zoned for commercial usage.

The petition avers that it was contemplated by the parties that the lessee “being engaged in business as a manufacturer of automotive parts, including bearings and housings among other things, and using heavy production machinery in the manufacturing processes, would use the demised premises for said purposes . . .” and that the defendant entered into possession of the premises and continued to manufacture the articles in question until advised by the building inspector on March 4, 1955, that this was illegal. It is averred that the lessor “knew or should have known” that the premises were zoned as hereinbefore described and that such zoning prohibited the manufacture of automotive parts and that defendant had no knowledge that this would be in violation of the zoning ordinance. In an amendment to the petition it is also averred that the proposed use was known to lessor at the time of entering into the lease. The lease purports to be and is a definitive contract setting forth all the covenants and agreements of the parties. The averments of the petition do not state facts or circumstances which would warrant the court’s restricting the term “automotive parts” to a meaning narrower than that set forth in the lease. Taking the words as used in the lease and accepting the distinction between automotive accessories and automotive parts, uses could still be made of the premises within the zoning ordinance. Even if we were to hold otherwise, we are of the opinion that the allegation in the petition that plaintiff knew that the proposed usage was in violation of the zoning law is not sufficient to bar recovery of rent, and this we will now consider.

The charge in the petition is that plaintiff knew that the use contemplated was in violation of the zoning law and that defendant did not know this. "We must assume that defendant knew the law. Kazwell v. Beynolds, 250 Ill. App. 174. In that case the plaintiff sought to have a contract for the purchase of land declared void on the ground that the defendant knew that the plaintiff intended to use the real estate as a sandwich shop or restaurant and that it was represented to him that there were no restrictions on the premises except those appearing of record. After making the contract the plaintiff discovered that a zoning ordinance prohibited the use of the property for the purpose intended. The court held that it would presume that both parties knew the law and if the lessee did not, then the execution of the contract was a mistake of law and no relief could he given him. If in the instant case both parties are presumed to have known that the proposed usage was contrary to the zoning ordinance, then the only conceivable legitimate reason for execution of the lease by defendant was the belief on its part that operation of the premises could be brought within the law or a variation obtained or a proper showing made that as to this property such usage should be permitted. This could well be the case where zoning is involved because variations frequently are obtained either by amendment, by proceedings before the proper board, or by a judicial proceeding to determine the validity of the ordinance as to the particular property involved.

In respect to the allowance of variations from their prescribed terms zoning laws are unique. Gorieb v. Fox, 274 U. S. 603; Robinson v. Town Council of Narragansett, 60 R. I. 422, 199 Atl. 308 (1938); Brandon v. Board of Comm’rs, 124 N. J. 135, 11 A.2d 304; American Smelting & Refining Co. v. City of Chicago, 347 Ill. App. 32. In Gorieb v. Fox, supra, the Supreme Court of the United States rejected the argument that the power to grant exceptions violated the 14th amendment and held that an inflexible application of the zoning ordinance could result in unnecessary hardship ; that it was not possible to anticipate and provide specific terms for every exceptional ease, and then said (at p. 607):

“And yet the inclusion of such cases may well result in great and needless hardship, entirely disproportionate to the good which will result from a literal enforcement of the general rule. Hence the wisdom and necessity here of reserving the authority to determine whether, in specific cases of need, exceptions may be made without subverting the general purposes of the ordinance. . . .”

In Robinson v. Town Council of Narragansett, supra, the court said that such ordinances are full of details, and even when drawn with the greatest care, cannot prescribe what ought to be done in exceptional cases. For that reason it was proper to create a board of review with power to make exceptions so that an individual will not be deprived of his property or subjected to unnecessary or unreasonable hardship. In American Smelting & Refining Co. v. City of Chicago, supra, we said:

“The zoning law has an aspect differentiating it from other laws or ordinances passed in the exercise of police power. Such laws as a rule contain within themselves adequate specifications to make them applicable to all. They are either constitutional or not as to all. A zoning ordinance, on the other hand, may be unconstitutional as to a particular piece of property when it appears that its application to that property does not bear a reasonable relationship to the police power. This is, indeed, a condition of its validity.”

That in this community ample use is made of this right to obtain variations is well established by the history of zoning litigation and by the many cases decided by our courts holding invalid the application of a zoning ordinance to a particular situation. We conclude on this phase of the case that the lease does not restrict the premises to an illegal use and does not show that the parties contemplated an illegal use.

There are cases holding that even if a lease does not restrict the premises to an illegal use, the lessor’s right to recover rent may be defeated if he has knowingly participated in a plan to make an illegal use of his property. The cases in which this has been applied are those where statutory provision made it a criminal offense knowingly to lease for certain illegal uses. In other words, the act of leasing with knowledge is the offense proscribed. Thus, in Fields v. Brown, 188 Ill. 111, recovery of rent was denied where the premises were leased with the knowledge that they would be used for the maintenance of a house of prostitution, in violation of Ch. 38, Sec. 162, Ill. Rev. Stat. 1955. In Harris v. McDonald, 194 Ill. 75, recovery of rent was denied where premises were leased with the lessor’s knowledge that they would be used for gambling purposes, in violation of Ch. 38, Secs. 325, 333, Ill. Rev. Stat. 1955. Other statutory provisions provide that leases shall be invalid where the use of the property is intended for obscene exhibitions (Ch. 38, Sec. 470, Ill. Rev. Stat. 1955) or for the purpose of receiving tips (Ch. 38, Sec. 551, Ill. Rev. Stat. 1955).

That courts distinguish between cases in which the statute makes it a criminal offense to lease premises for a particular use and cases in which the use contemplated but not the leasing is unlawful is revealed by Hoefeld v. Ozello, 290 Ill. 147. There the question involved was whether a provision with reference to terminating the lease of premises for a saloon in the event the state Sunday-closing law was enforced rendered the whole lease void because it contemplated a violation of the state law against opening saloons on Sunday. No state law prohibited the leasing, however, as in the case of prostitution, gambling, obscene exhibitions and receiving tips. The plaintiff offered proof that prior to the leasing the lessee had informed the lessor of his intention to keep the place open on Sunday. The court held that mere knowledge of unlawful use will not defeat recovery of rent.

Recovery of the price of goods sold has been denied where the act of sale or the method thereof was in itself a violation of a law passed for the protection of the public and providing for a penalty. Thus in Ideal Bldg. Material Co. v. Benson Concrete Co., 273 Ill. App. 519, the plaintiff was denied recovery for goods sold by weights that had not been sealed by the city sealer as required by ordinance. To the same effect is Western Cold Storage Co. v. Estate of Joseph Kaufman, 204 Ill. App. 477, where recovery for storage of decayed potatoes, in violation of an ordinance, was denied. Our courts have in some cases held that failure to obtain a permit before proceeding with work under a contract for the construction of a building or the installation of a tank was a bar to recovery. Bairstow v. Northwestern University, 287 Ill. App. 424, 5 N.E.2d 269; American Tank & Installation Co. v. Rudolph Wurlitzer Co., 254 Ill. App. 514. In these cases the act upon which suit was predicated was a violation of the law — selling goods by unsealed weights, selling decayed potatoes, or doing construction work without a permit. These cases are analagous to those we have cited previously, in which the act of leasing premises for gambling or obscene exhibitions is invalid under the statute.

In the instant case lessor violated no law by making the lease. She bargained for the leasing of the premises with a lessee who was to pay a stipulated sum therefor. Lessee could comply with his covenant to pay the rent without violating any law. The only basis upon which an illegal act could be charged to lessor, as we have previously stated, would be the making of a lease prohibited by law, and no law prohibits a lease of premises for the purposes stated.

Defendant has cited a number of cases where impossibility of performance has been held to bar recovery. These are distinguishable from the instant case. In Levy v. Johnston & Hunt, 224 Ill. App. 300, cited by defendant, the premises leased were to be used for a saloon. However, the prohibition law made usage for that purpose illegal. The court sustained the defense on the ground that as “a general rule, performance is excused where it becomes impossible owing to a change in domestic law after the making of a contract, provided the promisor has not expressly assumed the risk of such change. Adler v. Miles, 69 N. Y. Misc. 601, 126 N. Y. Supp. 135; Thomas v. Hartshorne, 45 N. J. Eq. 215; Baylies v. Fettyplace, 7 Mass. 325; Cordes v. Miller, 39 Mich. 581.” The court based its decision on impossibility of performance but, as we have stated, the primary promise of a lessee is to pay rent, and there is nothing legally impossible about that. Later authorities used the more suitable phrase “commercial frustration” instead of impossibility of performance. Williston on Contracts, Rev. Ed. Secs. 1954-55; Restatement of Contracts, Sec. 288. The general rule is that performance of a contract is not excused because subsequent and unanticipated events have deprived it of its value, even though the subsequent event is an act of legislation. Deibler v. Bernard Bros. Inc., 385 Ill. 610; Leonard v. Autocar Sales & Service, 392 Ill. 182. The doctrine of commercial frustration is an exception to that rule. That doctrine is not applicable here because the zoning ordinance in question was in existence at the time of the making of the lease. Zoning ordinances, as a rule, except existing uses made at the time of their passage. In the present case if there was any illegality, it existed at the time the lease was executed.

In our opinion the question under consideration is more nearly analagous to those cases in which a lease is restricted to a use legal in itself but with respect to which the law requires a license or permit. In such case it is generally held that it will be presumed the parties contemplated that a license would be obtained and if in fact the license is refused, the lessee is held to have executed the lease with an awareness of the existing law and to have assumed the risk of refusal. Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437, 57 N. E. 620; Raner v. Goldberg, 244 N. Y. 438, 155 N. E. 733; Gaston v. Gordon, 208 Mass. 265, 94 N. E. 307; Burgett v. Loeb, 43 Ind. App. 657, 88 N. E. 346; Burke v. San Francisco Breweries, 21 Cal. App. 198, 131 Pac. 83; Nussenbaum v. Chambers & Chambers, Inc., 322 Mass. 419, 77 N.E.2d 780 (1948). That the principle is applicable to situations such as the one before us was recognized in Friedman Realty Co. v. DeStefan, 220 App. Div. 661, 222 N. Y. Supp. 371; Stockburger v. Dolan, 14 Cal.2d 313, 94 P.2d 33; Say-Phil Realty Corp. v. DeLignemare, 131 Misc. 827, 228 N. Y. Supp. 365 (Mun. Ct.).

Certain decisions of the lower New York Courts cited by defendant seem to be out of harmony with Friedman Realty Co. v. DeStefan, supra, but are distinguishable. Insofar as there is any conflict, we prefer the reasoning in the Friedman case.

Our conclusion is that the court properly denied defendant’s motion to vacate the judgment.

Judgment affirmed.

ROBSON, P. J. and McCORMICK, J., concur.


source: Caselaw Access Project

author: JUDGE KILEY

license: Public Domain

text:
    Stephen E. Durkin, Appellee, v. Elgin, Joliet and Eastern Railway Company, and United States Steel Corporation, Appellants.
    Gen. No. 46,834.
    First District, Third Division.
    November 28, 1956.
    Rehearing denied January 7, 1957.
    Released for publication January 8, 1957.

      Stevenson, Conaghan, Yelde and Hackbert, all of Chicago, for appellants; Harlan L. Hackbert, Dean A. Olds, of counsel.
    James A. Dooley, of Chicago, for appellee.
   JUDGE KILEY

delivered the opinion of the court.

This is a personal injury action joining a count, under the Federal Employers’ Liability Act against defendant Railroad, with a common law count against defendant Steel Company. Yerdict and judgment were for plaintiff for $50,000. Defendants have appealed.

The accident occurred December 3,1952, in the Steel Company’s Gary yard upon an elevated railroad way called the “highline.” The “highline” runs north and south along the east side of the Steel Company’s twelve blast furnaces which extend about a quarter of a mile. Four tracks are on the “highline” and, from east to west, are known as the “transfer or larry,” the “stone,” the “coke,” and the “storage” tracks. Beneath the tracks are bins in which is stored the ore and other materials for the furnaces. Between the tracks is a heavy open grating, covering the bins, through which the raw material is dumped from the railroad cars. The openings in the grating are about large enough for a man to “put both feet through,” but too small for a man to fall through into the bins. On the west side of the stone track is a wooden catwalk and on the east side near the transfer track is a “third rail” to supply power for the larry cars.

The bins are stored with material shipped to the mill by boats and by train. The boats in the dock, east of the “highline,” are unloaded by means of seven cranes, located along the east side of the “highline” and rising above it about 120 feet, using clam buckets moving from east to west. Customarily the buckets load self-operating larry cars on the transfer or larry track which carry the material to the bins. At times when the transfer track is under repair the cranes dump the material directly through the grill work. This was true on the day plaintiff was injured, a crane was dumping material in the southernmost bin.

Railroad movements onto the “highline” begin at grade to the southwest and move upward on an inclined curve, the crest of which is 320 feet south of the southernmost bin. "Warning bells and flashers warn those on the “highline” of the approach of trains.

Plaintiff was employed by the Railroad as a switching foreman. He was injured when a “hopper” car on which he was riding collided with a clam bucket being moved above the tracks by an overhead crane. He was riding on the front of the first car of a twenty-six car train which was being pushed by diesels toward the furnace storage bins. In escaping the collision, plaintiff swung to the corner of the car, to the stirrup and a side grab iron. He attempted without success to operate the air brake, tried to step down to the catwalk, lost his footing, and while hanging on to the grab iron was dragged about 120 feet over the rough grating between the catwalk and tracks and was injured.

Plaintiff alleged, among other things, that the Railroad was negligent in failing to furnish him a safe place to work. The jury returned with the general verdict for plaintiff and a special verdict that the Railroad’s negligence cdntributed forty per cent to the accident. The Railroad contends there was insufficient evidence of negligence on its part to take the case to the jury or to support the general or special verdict, and that plaintiff’s own negligence was the sole cause of his injury.

The Illinois Supreme Court recently stated in Hall v. Chicago & North Western Ry. Co., 5 Ill.2d 135, 143-44, that contributory negligence was no defense in an F. E. L. A. suit and if there was any evidence in the record from which a jury could conclude that defendant’s negligence contributed to the plaintiff’s injury, a court would err in granting a motion for judgment notwithstanding the verdict. The evidence we consider on the Railroad’s contention is that favorable to plaintiff together with the reasonable inferences therefrom which tend to support his case. (Wilkerson v. McCarthy, 336 U. S. 53, 57; Pitrowski v. N. Y., Chicago & St. L. R. R. Co., 4 Ill.2d 125.) Only where there is a complete absence of probative facts tending to show negligence should the court take the question from the jury. Pitrowski v. N. Y., Chicago & St. L. R. R. Co., 4 Ill.2d 125; Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 191 F.2d 302.

The evidence favorable to plaintiff is that at the time of the occurrence the railroad movement involved was not his regular work; that he had experience only of the cranes operating with the larry cars and had never seen the direct crane dumping; that he was not informed before the start of the movement that the direct dumping was in progress; that he was riding in the customary way on the front car standing on the drawbar of the coupler to perform his duty of watching for obstructions on the track; that ordinarily there was an extra man on the “highline” during the direct dumping method to assist the crane operator in doing this work safely; that on the dsfy of the accident no extra man was on the job; that the train plaintiff was riding crossed over the crest slowly and picked up speed on the downgraded “highline” and was going about 15 miles per hour as it neared the southernmost' bin; that the crane bucket had been raised above the tracks as the train approached and “for some unknown reason” dropped down again to collide with the train; and that plaintiff did not observe the bucket until he was 25 feet away when it came down “like a dive bomber.”

It is our opinion that this evidence was sufficient to take the case to the jury on the question of the Railroad’s negligence in failing to furnish a safe place to work. The Railroad’s duty to furnish a safe place to work cannot be laid upon the Steel Company even though the injury was suffered on the Steel Company’s property. (Porter v. Terminal Railroad Ass’n, 327 Ill. App. 645; Atlantic Coast Line R. Co. v. Robertson, 214 F.2d 746.)

The Railroad’s trainmaster, plaintiff’s superior, was on the “highline” for several hours before the accident and knew of the direct dumping process whenever the transfer track was under repair as it was this day. The jury could infer that the absence of the extra man helping the crane operator should have been apparent to the trainmaster and that the Railroad should have made the “highline” safe by seeing that the extra man was supplied, or by supplying one. (Pitrowski v. N. Y., Chicago & St. L. R. R. Co., 4 Ill.2d 125, 130.) Plaintiff was in control of the train movement but this is not conclusive for he was not in control of the crane and clam bucket which made his place of work unsafe. We think the question of a safe place to work was for the jury. It follows that the court did not err in instructing on the question of a safe place to work, and we see no abuse of discretion in failing to give more than one of the Railroad’s instructions on the subject.

Whether plaintiff’s failure to operate the air brakes was the sole element of negligence was also a jury question. The jury had plaintiff’s testimony of his riding in the customary place and his unsuccessful attempt to operate the brakes.

There is no merit in the Railroad’s contention that plaintiff as a matter of law should have seen the clam bucket 200 or 300 feet south of the place of the accident. He says he did not see the bucket until he was 25 feet away. Others say the bucket had been raised before it suddenly dropped and accordingly had plaintiff looked he might have seen only the raised bucket with no duty to expect that it would be suddenly dropped on him. This was evidence from which the jury could also infer that plaintiff, occupied in seeing that no slag or workmen were on the tracks, was not imprudent in not seeing the raised clam bucket.

Even though the trainmaster or other of defendant’s employees may not have been in position at the time of the accident to see the hazardous proximity of the crane, the Railroad knew or should have known of the direct dumping operation which rendered train movements unsafe. It knew also of the custom of having an extra man helping the crane operator. While the Railroad could not control the Steel Company’s conduct it could, as we have already noted, have supplied its negligent deficiencies endangering the Railroad’s employees. While plaintiff may have been required to expect the crane operation loading larry cars, the larry track was out of operation and since he had no knowledge of the direct dumping procedure he should not be expected to anticipate it.

We think that Starck v. Chicago & North Western Ry. Co., 4 Ill.2d 611, is not applicable since the question whether a place rendered temporarily unsafe by another’s negligence is within the “safe place to work rule” was “not squarely presented” in that case. The case of Pitrowski v. N. Y., Chicago & St. Louis R. R. Co., cited hereinabove, is in the same volume at page 125 and is applicable.

Defendant’s principal reliance is upon Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 191 F.2d 302, decided in the 7th Circuit in 1951. That case is cited to the contention that if there was negligence in failing to stop the train movement before the accident, the sole negligence was plaintiff’s. In the Wetherbee case the judgment for plaintiff was reversed and the case remanded, but the Court found no negligence of the railroad in failing to furnish a safe place to work. (Second appeal, 204 F.2d 755.) There the railroad was not responsible for the plank being where it was to cause derailment, just as the Railroad in the instant case was not responsible for the clam bucket being operated so as to collide with the train. But we cannot say here that the clam bucket could have been seen by “anyone looking down the track in its direction” as the Circuit Court said of the plank on the track in the Wetherbee case. Furthermore, as we have indicated, even if plaintiff saw the bucket lifted above the tracks he need not have anticipated it would suddenly descend on him “for no reason.” Also, the plank in Wetherbee was a “new threat” and the section foreman had not been on the “premises” that day. But here, the train-master had been on the “highline” and the company knew or should have known of the absence of the extra man and thus if the threat was new it was one that the Railroad could have removed. These circumstances differentiate the factual situations in the Wetherbee case and this case.

The case of Killian v. Pennsylvania R. R. Co., 336 Ill. App. 152, cert. denied, 338 U. S. 819, is also distinguished on the facts. There plaintiff saw the dangerous condition, instructed the Mallory Company employee to move certain barrels, and thereafter, though standing only ten or twelve feet away, did not look to see whether the barrels had been moved. And in the absence of testimony, questions of negligence of other railroad employees would require indulging in “speculation.” There was no negligence on the part of the railroad and Killian’s contributory negligence was held to be the sole proximate cause as to the Mallory Company.

Defendants complain of error in the admission of testimony, and instructing the jury with respect to damages. The defendants do not complain that the verdict is excessive and the medical testimony is not abstracted for our consideration. We cannot decide, therefore, whether defendants were harmed or prejudiced by the alleged errors. We cannot tell whether the instruction complained of allowed “double or even triple” recovery. There is no basis for the complaint made.

The Steel Company admits there is sufficient evidence of its negligence to take the case to the jury, but contends that plaintiff was guilty of contributory negligence as a matter of law, thereby relieving the Steel Company of any liability. However, in view of our conclusión that the question of plaintiff’s due care was for the jury, it follows that the verdict as to the Steel Company is proper.

For the reasons given, we see no reason for disturbing the special and general verdicts. The judgment is affirmed.

Affirmed.

FEINBERGr, P. J. and LEWE, J., concur.


author: JUDGE EJLEY FEINBERG-, P. J. and LEWE, J.,

text:
    Dr. D. J. Louis, Appellee, v. Walter C. Youngren, Jr., and Sims Motor Transport Lines, Inc., Appellants.
    Gen. No. 46,760.
    First District, Third Division.
    December 5, 1956.
    Released for publication January 2, 1957.

      Pretzel & Stouffer, of Chicago, for Sims Motor Transport Lines, Inc., appellant; Eugene P. Kealy, of Chicago, for Walter C. Youngren, Jr., appellant.
    Francis J. Gariepy, of Chicago, for appellee.
   JUDGE EJLEY

delivered the opinion of the court.

This is a personal injury action arising from a collision between an automobile driven by plaintiff and a truck driven by defendant Earle, owned by defendant Youngren, and leased to defendant Sims Motor Transport Lines, referred to herein as Sims. Judgment for $11,650 was entered upon a verdict against all three defendants. Only Youngren and Sims have appealed.

Plaintiff was driving west on 95th Street in Chicago on March 30, 1950. He stopped his car for a traffic signal at the intersection of 95th and Halsted, and it was struck from behind by the truck. Earle was employed by Youngren to drive the truck, one of four owned by Youngren. Earle did not receive a regular salary but was paid 25 per cent of the gross revenue of the truck while he was driving it. On the day of the accident Youngren received a call from Sims requesting a truck to haul a load of steel from the Wisconsin Steel Company in South Chicago, Illinois to Springfield, Ohio. Earle was in the office at the time, Youngren sent him to haul the steel, and Earle drove directly to the Wisconsin Steel Company plant. While the truck was being loaded, signs were affixed to each side of the truck. At the top of the signs were the words “trip lease”; under that was the name of “Sims Motor Transport Lines, Inc.”; and under that in smaller letters the permit numbers issued to Sims by various states and the Interstate Commerce Commission.

From the Wisconsin Steel plant, Earle drove to the Sims office where he was given the “trip lease” agreement and the bills of lading, and was told the quickest route to Springfield, Ohio. He then drove west toward the Youngren terminal with the intention of picking up his clothes to get them washed at his home in La Crosse, Indiana, where he intended to stop overnight on the way to Springfield. It was while he was on his way to the Toungren terminal that the accident occurred. Following the accident, Earle continued on his journey, made delivery of the steel at Springfield, and then returned to the Youngren terminal at Harvey, Illinois.

Negligence in the operation of the truck and plaintiff’s use of due care are not disputed, nor is any objection made to the amount of the verdict. The sole question presented is whether Youngren or Sims or both are responsible for plaintiff’s injuries. Youngren contends that under the terms of a written “trip lease” agreement, leasing the truck, Sims was in control and had direction of the vehicle at the time of the accident, and is consequently responsible. Sims contends that Earle was not its agent since he was in the general employment of Youngren, and that Youngren is therefore responsible.

The trip lease was for a single trip and Youngren was not exclusively a hauler for Sims. Youngren, as owner of the truck and employer of the driver, necessarily had a master’s control over the truck at the time of the accident. He was responsible under the lease for the maintenance of the truck. The driver reported to him and delivered the way hill and trip lease to him. There is no indication that Sims had any right to tell Earle how to drive the truck, hut only where to drive it, and Sims had no right to discharge Earle. In hauling the freight for Sims, Earle was doing the work for which Youngren employed him, he was paid by Youngren, and he could he discharged by Youngren, and therefore Earle was under Youngren’s control. The only control exercised by Sims was that of engaging Youngren to deliver the steel to its Ohio destination, and Sims had no control over the means of accomplishing this result. Under these circumstances, Youngren is an independent contractor. (Postal Tele. Sales Corp. v. Indus. Comm., 377 Ill. 523; Densby v. Bartlett, 318 Ill. 616; Haney v. Northwest Cartage Service Corp., 336 Ill. App. 97; Dean v. Ketter, 328 Ill. App. 206. See Ill. Law and Practice, Vol. 4, page 352, Sec. 164.)

Sims had a permit to carry goods in interstate commerce and without it the trip in question could not lawfully have been made. Youngren did not have such a permit and had to lease the truck to Sims so that an interstate haul could be made under the latter’s permit. Sims knew this and could foresee the danger of transportation with defective equipment. We think this renders Sims liable for the negligence of the driver. Sims may not escape its responsibility to the public by hiring an independent carrier to haul under Sims’ permit from the Commerce Commission. (Venuto v. Robinson, 118 F.2d 679; Hodges v. Johnson, 52 F. Supp. 488.) This rule is noted in “Restatement of the Law of Torts,” page 1149, Section 428, as follows: “An individual or a corporation carrying on an activity which can he lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” The rule is also supported by the Illinois cases. (Ohio & M. R. Co. v. Dunbar, 20 Ill. 623; Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332, 336-337; Orange v. Pitcairn, 280 Ill. App. 566, 572.) We agree with the statement in the Venuto case (118 F.2d 679, 682) that truck travel upon the highways is attended with “very considerable risk” and comes within the meaning of the rule.

Youngren argues that the instant lease was subject to I.C.C. rules which imposed on Sims the obligation of “exclusive possession, control, and use” of the truck and “the complete assumption of responsibility in respect thereto” and that these rules relieve Youngren, as lessor, from all responsibility to the public, notwithstanding state law to the contrary. The instant lease was not made in compliance with the rules of the Interstate Commerce Commission cited to us by Youngren in American Trucking Associations, Inc. v. United States, 344 U. S. 298. Those rules were “in effect adopted” by a Commission report May 8, 1951 (344 U. S. 307), and were not made effective until an even later date. That the rules were not effective at the time of the accident is also plain from the instant lease, which covers a single trip — the rules cited require a lease of not less than 30 days. § 207.4 (a) (3), 52 M.C.C. 744.

Since the rules relied on by Youngren were not in effect when the lease was made, they did not become terms of the lease, and the relationship of the parties is rightly determined by the actual circumstances of the engagement. Without conceding that the rules relied upon by Youngren would preclude his liability, in the absence of such rules it is clear that Illinois law is decisive of the question of Youngren’s liability for tbe negligence of Earle. Tbis same conclusion is evident in Venuto v. Robinson, 118 F.2d 679, and War Emergency Co-Op Ass’n v. Widenhouse, 169 F.2d 403, cert. denied, 335 U. S. 898, both decided before tbe I.C.C. rules cited by Youngren were effective, and in botb state law was applied to find tbe relationship of independent contractor. (See also, Hodges v. Johnson, 52 F. Supp. 488.)

Under Illinois law Youngren is responsible for tbe negligence of bis servant, Earle. (Densby v. Bartlett, 318 Ill. 616; Haney v. Northwest Cartage Service Corp., 336 Ill. App. 97.) There is no doubt that a servant in tbe general service of one may be transferred for a specific service under tbe control of another so as to become tbe latter’s servant for that specific work. (Watson v. Trinz, 274 Ill. App. 379, 393.) In MacNeal, Inc. v. Timber Structures, Inc., 6 Ill.App.2d 323, tbis court found such a situation. It was held that since tbe lessee of equipment could have hired either men recommended by tbe lessor or others as tbe lessee chose, and since tbe lessee’s foreman and superintendent directed tbe work, tbe crew, though in tbe general employ of tbe lessor, was under tbe direction and control of tbe lessee. In tbe present case, Sims bad no such control of Earle, nor could it select its own driver, and we distinguish tbe MacNeal case on that basis.

Tbe facts in tbe instant case also distinguish it from eases like Kemp v. Creston Transfer Co., 70 F. Supp. 521, and Gassaway v. Barry, 123 F. Supp. 670, where tbe lease itself expressly provided that tbe lessee shall have complete possession, control and dominion of tbe equipment, and there were additional facts which negatived tbe idea that tbe lessor was an independent contractor.

Youngren contends that the exclusion of the trip lease from evidence was reversible error since the lease would have established as a matter of law that Earle was not the agent of Youngren at the time of the accident. The proffered lease, which was not admitted, provided that Youngren should maintain the truck in good working order, pay all fines for violating regulations or laws, and “while the foregoing equipment is under the direction and control” of Sims “it shall be operated only by the lessor or his representative while in the employ of Sims . . . .” The lease did not provide a “certain route” and Earle was not directed to take any specific route. He was told the most direct route, but from all that appears he was free to select the route that he took. The lease did not oblige Sims to employ and pay its own driver, but on the contrary provided that only Youngren or his representative should operate the truck. The lease itself supports the other evidence on which Youngren’s liability is based, and it could have shown no more than the facts in evidence had already shown. Consequently, the lease would have been cumulative evidence, and the error, if any, in the ruling was harmless.

In holding Sims and Youngren jointly liable we distinguish Haney v. Northwest Cartage Service Corp., 336 Ill. App. 97, where, under similar circumstances, this court allowed judgment to be obtained only against the owner of the truck. In that case there was no interstate commerce involved and the owner could have done the hauling lawfully without the cooperation of the lessee. We do not hold Sims liable as an employer, but because it was the owner of the I.C.C. permit. (Venuto v. Robinson, 118 F.2d 679; Hodges v. Johnson, 52 F. Supp. 488.)

Sims contends that Earle’s deviation from the most direct route to Springfield took him out of Sims’ control and exculpates it from liability for Ms negligence. We do not hold Sims liable because it was in control of Earle, but if there was a substantial deviation Sims should nevertheless be allowed to raise this point if Toungren does not. Under the common law rule we apply, Sims is liable for its contractor’s negligence in using the francMse. If Earle was not under the contractor’s control, his negligence would not be imputed to the contractor and Sims in turn would not be liable. It follows that the law as to deviation applied to the master-servant relation should be applied to determine Sims’ responsibility.

Applying this law, if Earle were trying to hold the master, Sims’ contention might be valid, but when a third party seeks to go through the agent to the master the courts hesitate to find the agency had been suspended as a result of the servant’s slight deviation. (Parotto v. Standard Paving Co., 345 Ill. App. 486, 494.) The facts here are not in dispute, and it becomes the duty of the court to determine whether the servant had left the employ of the master. We think reasonable men would agree that in the absence of an order to take a specific route, there was no substantial deviation when Earle drove to the Toungren terminal to pick up his clothes and then drove to La Crosse, Indiana, to stay overnight at his own home. Therefore, the court was not in error in refusing to give the requested instructions on deviation.

Sims also contends that it was error for the court to refuse instructions which would relieve Sims of responsibility if defective brakes were the cause of the accident. We do not consider this refusal error. As we have already pointed out, Sims is jointly responsible for the admitted negligence which caused the collision. Even if defective brakes were the sole cause, Sims as lessee and owner of the Interstate Commerce Commission permit is jointly liable with Youngren for the result.

The court gave the following instruction:

“The court instructs you that when a tort or wrong is committed by an agent or employee in the course of his employment and while pursuing his employer’s business, the employer will be liable for any damages resulting from such tort or wrongful act although it is done without the employer’s knowledge or consent unless the wrongful act is a willful departure from such employment or business.”

Youngren contends this instruction was improper because it did not set out all the elements which should be included in such an instruction on agency and the jury might assume from the instruction that the fact alone of Earle’s employment made Youngren liable. True, the instruction seems to exculpate Sims from liability under the theory of respondeat superior, but since, under the uncontradicted evidence, Earle was doing the business of Youngren, the independent contractor, we have held, as a matter of law, that Earle was the servant of Youngren. The instruction was therefore, at worst, no more than surplusage, it could not have been prejudicial to Youngren, and we find no merit in the contention. Under what theory the jury found Sims liable we need not determine. The result is correct, and we are not concerned with the reasons of the jury.

For the reasons given, the judgment is affirmed.

Affirmed.

FEINBERG-, P. J. and LEWE, J.,

specially concurring :

We think there is another substantial basis for holding Youngren liable. The complaint charged that the defendants “drove said motor vehicle with inadequate, improper, poor and defective brakes which were unable to control the movement of said motor vehicle, ... in violation of the statute in such case made and provided.” Chapter 95%, § 211 of the Uniform Traffic Act, Ill. Rev. Stat. 1955, provides:

“Every motor vehicle, other than a motorcycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels.”

Whether the truck had defective brakes became a question of fact for the jury.

The evidence discloses that at the scene of the accident, and immediately following the collision, Earle, the driver of the truck, stated to plaintiff, when asked why he hit him, “I can’t help it. I applied the brakes and the brakes won’t hold.” On cross-examination of plaintiff, he further testified that Earle stated at the time, “My brakes were defective; they wouldn’t hold and I couldn’t stop the truck.” The evidence was received without objection either on direct or cross-examination.

This evidence, in connection with the fact that plaintiff’s car was at a standstill, waiting for a traffic light to change, when it was struck from behind by the truck, was sufficient to make it a question of fact to be determined by the jury. If the jury believed, as it had a right to, that the brakes were defective, then Toungren, as owner of the truck, in allowing the truck to be driven by his servant in the highly hazardous business of interstate commerce upon the public highways, is hable for injury resulting from the defective condition of the brakes. Rotche v. Buick Motor Co., 358 Ill. 507, 514, and cases there cited.


author: JUSTICE CROW

text:
    Merchants National Bank of Aurora, Trustee Under Trust No. 401, Plaintiff, v. Margaret Bird Weinold, and Martha Ellis Wagner, Defendants. Margaret Bird Weinold, Certain Defendant-Appellant, v. Martha Ellis Wagner, Certain Defendant-Appellee.
    Gen. No. 10,952.
    Second District.
    December 20, 1956.
    Released for publication January 5, 1957.

      John GK Plain, of Aurora, for appellant.
    Hempstead, Redman & Shearer, of St. Charles, for appellee.
   JUSTICE CROW

delivered the opinion of the court. This is a complaint by The Merchants National Bank of Aurora, as trustee under a trust agreement executed by Winifred B. Colby, as settlor, and the bank, as trustee, against Margaret Bird Weinold and Martha Ellis Wagner, defendants. In its complaint, the bank asked that a determination be made as to the rights and interests in the trust assets of the defendants, the present ostensible beneficiaries under the trust agreement, by reason of the death of Winifred B. Colby, the settlor, and as to what effect, if any, the Last Will and Testament of Winifred B. Colby had upon the trust assets at the time of her death, and as to whether the will of the settlor revoked the trust agreement. The complaint also asked that the bank’s appointment as trustee be confirmed, and its acts ratified, and there were attached copies of the trust agreement, the settlor’s will, and the trustee’s final account for the period December 19,1952-March 30,1954.

The answer of the defendant Margaret Bird Weinold, appellant, in substance, admitted the factual allegations of the complaint, and alleged the trust agreement created a valid inter vivos trust, not testamentary in character, and that the trust estate should be distributed pursuant to the terms of the trust agreement, upon the decease of the settlor, that the settlor created a completely executed trust, which was never revoked, cancelled, or amended, that the trustee at all times after creation of the trust held the trust assets as trustee, that the trust was in full force and effect upon the decease of the settlor, and that the distribution by the bank, as trustee, to itself as executor was wrongful and contrary to the terms of the trust agreement, and that she is entitled to one-half of the trust assets.

The answer of the defendant, Martha Ellis Wagner, appellee, in substance, admitted the factual allegations of the complaint and alleged that the trust agreement attempted to effect a testamentary disposition of the trust estate without complying with the statute on wills, and therefore the trust was invalid and terminated at the death of Winifred B. Colby, and the trust assets were a part of her estate to pass in accordance with her will, primarily because of the settlor’s reserved right to revoke or modify the trust agreement, and because the trust was to terminate on the death of Maude B. Ellis, or the settlor if Maude B. Ellis was not then living, at which time distribution was to be made to the defendants’ beneficiaries.

The question raised by the complaint of the bank, as trustee, so far as decided by the trial court and now before us, is whether the trust agreement, admittedly not having been executed with the formalities of a will, was valid as an inter vivos trust to effect a valid distribution of the trust assets in accordance with the terms of the trust agreement after the death of the settlor, or was testamentary in character and hence invalid and did not control the distribution of the trust assets upon the settlor’s decease. The further matter referred to in the complaint as to whether the will revoked the trust agreement was not decided below and is not before us.

On motion of the defendant Martha Ellis Wagner for a summary judgment, on the pleadings, the trial court entered a decree finding that the trust agreement, not having been executed pursuant to the statute on wills, and being testamentary in character as to the disposition at the settlor’s decease, was invalid as a testamentary disposition, and ordered that the bank, as trustee, deliver all of the assets of the trust in its possession to itself as executor of the estate of Winifred B. Colby, deceased, the decree reciting that the settlor reserved absolute control of the trustee, the right to revoke, cancel, amend, increase or decrease the trust estate, thereby preventing the defendants’ beneficiaries from any control or exerting any interest in the trust estate during the settlor’s lifetime, that it was the settlor’s intention the beneficiaries should receive an interest only upon her decease, and that the interests of the defendants’ beneficiaries were to take effect only upon the decease of the settlor.

From that part of the decree finding that the trust agreement was testamentary in character, and, not having been executed as a will, therefore void, and ordering the bank, as trustee, to turn over to itself, as executor, all the assets of the trust at the date of death of "Winifred B. Colby, the defendant Margaret Bird Weinold has appealed.

No dispute exists as to the facts in the present proceeding, — they being sufficiently set forth in the complaint and other pleadings, and there being no evidence. The facts, as so disclosed by the pleadings, are that on December 19,1935, Winifred B. Colby executed and delivered this trust agreement with and to The Merchants National Bank of Aurora, as trustee, and at the same time deposited certain securities, constituting the initial corpus, with the trustee, creating a trust known as “Trust No. 401.” The trust agreement gave the trustee the usual powers and duties to receive, hold, protect, manage and control the trust assets, and to invest and reinvest the principal and proceeds, collect the same and the income, to sell, assign, lease, exchange, encumber, etc. the trust estate, to sell, alter, etc. the investments, collect dividends, etc. until the final and complete distribution and payment, pay all expenses of the trust, and retain a reasonable trustee’s compensation. The trustee was also to receive any other property which might be devised, bequeathed, granted, conveyed, or assigned to it by the settlor or any other person, to be held pursuant to the terms of the agreement. The trustee was to pay all of the net income to the settlor, Winifred B. Colby, during her life, and to augment the payments of net income by the payment of principal to her from the trust estate to such extent as the settlor might at any time, or from time to time, in writing, direct, and if she were unable to so direct then to such extent as necessary and proper for her adequate care. Upon the death of the settlor the trustee was to retain the trust estate, as then constituted, with all the trustee’s rights and duties thereinbefore given, and, commencing with the death of the settlor, to pay the net income to Maude B. Ellis, a sister of the settlor, for her life, and if the income should not be adequate for her comfortable support, then to augment such by payment from the principal to such extent as should, in its discretion, be adequate. Upon the death of Maude B. Ellis, or upon the death of the settlor, if Maude B. Ellis should not then be living,. the trust should terminate and the trustee should thereupon pay, transfer, and deliver the trust estate, as then constituted, one-half to Margaret Bird and one-half to Martha Ellis.

The settlor reserved the right of modifying or changing the trust agreement at any time or in any manner, to revoke the same, to withdraw from the trustee any or all of the trust estate at any time or from time to time, to increase or decrease the amount of the trust estate, and to change, alter, amend, or cancel the trust agreement, without the consent of the beneficiaries or the trustee, provided, however, that the settlor should exercise such right in writing.

The agreement recites that the settlor does hereby sell, assign, set over, transfer, and deliver all of her right, title, and interest to the trustee in and to the property and securities described in Exhibit A annexed, which property and any other as may be received is the trust estate.

It further provided that no assignment or order by any party having any beneficial interest, either actual or by way of anticipation of any part of the principal or income shall be valid, and that the trustee might resign by giving 30 days’ written notice to tbe settlor or, if she be deceased, to tbe surviving beneficiaries.

Tbe trust agreement is a formal instrument of some 8 typewritten pages, in which Winifred B. Colby is called tbe settlor and tbe bank is called tbe trustee, tbe legend “#401” is in tbe margin opposite tbe first paragraph, it is executed under seal, states that it is binding upon tbe parties, their heirs, executors, administrators, and assigns, is executed on behalf of tbe bank-trustee by its president and trust officer, and Exhibit A attached is a listing of various securities, tbe settlor’s and tbe trust officer’s initials appearing at several different places in tbe margin of that Exhibit A.

From and after tbe execution of tbe trust agreement on December 19, 1935, tbe bank, as trustee, continued to act in fact under and pursuant to tbe terms thereof until tbe death of Winifred B. Colby, tbe settlor, on January 11, 1954, and it made annual accountings from December 19, 1935 to March 30, 1954. Maude B. Ellis, tbe sister of tbe settlor, predeceased tbe settlor. Margaret Bird, one of tbe named beneficiaries in tbe trust agreement, is now by marriage Margaret Bird Weinold and Martha Ellis, tbe other named beneficiary, is now by marriage Martha Ellis Wagner. Tbe settlor died testate, and her will was admitted to probate. After several preliminary bequests, tbe residue of tbe estate was devised and bequeathed to Martha Ellis Wagner. Tbe Merchants National Bank of Aurora, tbe trustee under tbe trust agreement, was also nominated, and duly qualified, as executor of tbe will. Thereafter tbe bank, as trustee, turned over to itself, as executor, all of the trust assets in its possession at tbe death of Winifred B. Colby.

It is conceded that tbe trust agreement was not executed as a will should be or in such a way as to satisfy tbe requirements of tbe statute on wills, and hence if it be testamentary in character it is necessarily invalid. Bnt if it be not testamentary in character and be instead a valid inter vivos trust it is valid and need not, of course, comply with the statute as to the execution of a will.

The recent case of Farkas v. Williams (1955) 5 Ill. 2d 417, is similar in many respects to the instant case. It is cited by the appellant as authority for holding that the terms of this trust agreement do not invalidate the trust or make it testamentary in character but instead create a valid inter vivos trust. That case is also cited by the appellee. The decedent settlor had there purchased certain shares of stock in his name “as trustee for Richard J. Williams,” pursuant to written applications to that effect, and pursuant to contemporaneously executed declarations of trust. The declarations of trust provided, inter alia, that the settlor, as trustee, held the stock in trust for Richard J. Williams, as beneficiary; cash dividends during the settlor’s lifetime were to be paid the settlor individually; additional stock purchased by reinvestment of dividends was to become a part of the trust; “upon my death the title to any stock subject hereto and the right to any subsequent payments or distributions shall be vested absolutely in the beneficiary”; during his lifetime the settlor reserved the right as trustee to vote, sell, redeem, exchange or otherwise deal with the stock and upon any sale or redemption the trust was to terminate as to that particular stock and the settlor was to be entitled to retain the proceeds individually; the settlor reserved the right to change the beneficiary, or revoke the trust upon written notice to the company whose shares were involved, and the decease of the beneficiary before the settlor was to revoke the trust; and upon revocation or termination the stock was to belong to the settlor individually. The court there made a determination of two allied issues: (1) whether upon execution of the trust declarations the beneficiary presently acquired an interest in the subject matter of tbe trusts, tbe court pointing out that if no interest passed to the beneficiary before tbe death of tbe settlor tbe intended trusts were testamentary and hence invalid for failure to comply with tbe statute on wills, and it was beld tbe beneficiary did presently acquire an interest upon their execution and before tbe settlor’s death; and (2) whether tbe settlor bad retained such control over the subject matter of tbe trusts as to render tbe trust instruments attempted testamentary dispositions, and it was beld be bad not and that they were valid inter vivos trusts. A reference was there made to Stouse v. First Fat. Bank of Chicago (Ky.), 245 S.W.2d 914, 32 A.L.R.2d 1261, which we shall later refer to, and Farkas v. Williams, also, p. 431, refers to Bogert, on Trust and Trustees, Vol. 1, Sec. 104, p. 484-5, as follows:

“Often tbe grantor-settlor bolds back for himself tbe power to manage tbe property directly and indirectly. He provides that be himself shall have power to sell, lease, mortgage, pay taxes, make investments, and perform other acts of trust administration, or that be shall have authority to direct tbe trustees bow they shall perform these duties. These reservations have not generally been deemed to show that tbe grantor remains during bis life tbe master of tbe property to such an extent as to make bis gift to tbe cestuis testamentary. So long as tbe trust continues, tbe cestuis have equitable interests, no matter who acts for them in protecting those interests, whether it be trustee or settlor. If tbe exercise of these powers by tbe settlor involves tbe total or partial destruction of tbe trust, as where tbe settlor has power to sell tbe rest and keep tbe proceeds, tbe power seems to be treated as practically that of revocation of tbe trust. It leaves an equitable interest in tbe cestui till revocation. It shows a vested interest, subject to divestment, and not the lack of any interest at all.”

We believe, under the circumstances, that the named beneficiaries under the trust agreement here had equitable interests in the corpus of the trust at and as of the time of its execution. The language of the agreement is absolute and in praesenti, the legal title passed to the trustee and the equitable titles to the various beneficiaries in their various capacities, upon delivery of the corpus, and orthodox powers and duties were imposed upon the trustee. There is nothing to indicate such was not done genuinely or was done illusorily: 32 A.L.R.2d 1274. The settlor intended to presently give the various beneficiaries interests in the corpus. Upon executing the trust agreement the settlor evidenced an intention to part with some of the incidents of ownership of the trust estate. Immediately after its execution she could not deal with the trust estate the same as if she owned the property absolutely, but only in accordance with its terms. She manifested an intention to bind herself to having this trust estate pass upon her death (if Maude B. Ellis, the second life tenant be not then living) to these defendants Margaret Bird Weinold and Martha Ellis Wagner, as the trust estate might then be constituted, unless she revoked, cancelled, modified, changed, altered, or amended the agreement, or withdrew any or all of the trust estate, or decreased the amount thereof, or had received payments of principal (any of which events might, of course, have occurred). The incidents of ownership which she intended to relinquish she intended herself, as the first lifetime beneficiary, (and Maude B. Ellis, the next lifetime beneficiary), and the defendants here, the ultimate beneficiaries, to acquire. We have some difficulty in viewing as a nullity an instrument which not only purports to place legal title in a trustee but to do so for tbe benefit of several persons in addition to the settlor; the interests of those other persons would seém in reason to continue until destroyed by the settlor in the exercise of the reserved powers and control: 32 A.L.R.2d 1291-2.

That the trust is to terminate (under the circumstances here) upon the settlor’s decease and the trustee is then to pay, transfer, and deliver the trust estate to the defendants’ beneficiaries does not invalidate it or prevent them from presently acquiring interests upon the execution of the agreement: 32 A.L.R. 2d 1273. Such merely postpones their active enjoyment or possession thereof, not the acquisition thereof. The language of the present agreement is just as strong, for their present acquisition of interests upon its execution, as was the language in the declarations of trust in Farkas v. Williams: “Upon my death the title to any stock subject hereto and the right to any subsequent payments or distributions shall be vested absolutely in the beneficiary . . . ,” — if not stronger. That the trust corpus is, upon the settlor’s decease, to be sold, any encumbrances paid, trust expenses paid, specific sums paid certain beneficiaries, (and the trust terminated pro tanto) one half the remainder retained absolutely by one beneficiary, (and the trust terminated pro tanto) and the other half continued in trust for other beneficiaries, does not mean the instrument is not a good inter vivos trust or prevent the acquisition of interests by the beneficiaries in praesenti upon its execution: Kelly v. Parker (1899) 181 Ill. 49. If an interest passes to the beneficiary during the life of the settlor, although the interest does not take effect in enjoyment or possession before the death of the settlor, the trust is not a testamentary trust, if otherwise valid as an inter vivos trust: Restatement, Trusts, Vol. 1, p. 172.

The settlor’s provisions here that no assignment or order by any party having any beneficial interest shall be valid, and that the trustee might resign upon notice to the surviving beneficiaries, if the settlor be deceased, are somewhat helpful as indicating her belief that these defendants did presently have some beneficial interests and were beneficiaries, even though their interests were necessarily subject to some contingencies and possible eventualities.

Though it may be somewhat difficult to name those interests of these ultimate defendants’ beneficiaries here, there is no particular reason for doing so as long as the interests passed to them immediately upon the creation of the trust: Farkas v. Williams, supra. We are inclined to believe their interests are vested equitable interests in remainder, subject to the foregoing certain conditions subsequent which might divest them, — but, whether technically vested subject to divestment upon conditions subsequent, or contingent upon conditions precedent, their interests were nevertheless created and passed upon creation of the trust. We cannot say they acquired no interest at all of any kind before the settlor’s death.

Upon the second allied phase of the matter, we have to consider the question of whether there are reservations of power or authority by the settlor of such a substantial nature as to amount to a retention of virtual ownership in the settlor and the creation of the trustee as a mere agent of the settlor rather than a trustee and as to make the agreement testamentary: 32 A.L.R.2d 1277, 1291; Restatement, Trusts, Vol. 1, p. 175.

The settlor here reserved the right to the net income during her life, to payments of principal, to revoke, cancel, modify, change, alter, or amend the agreement, to withdraw any or all of the trust estate, to decrease the amount thereof, and under certain circumstances to appoint a successor trustee. None of those powers or rights seem particularly unusual in an inter vivos trust. It is well established that the retention by the settlor of a power to revoke, or amend the trust, even when coupled with a reservation of a lifetime interest therein, does not render the trust inoperative for want of execution as a will: Farkas v. Williams, supra; Cf. People v. Northern Trust Co. (1919) 289 Ill. 475; Cf. Bergmann v. Foreman State Trust & Savings Bank (1934) 273 Ill. App. 408; 32 A.L.R.2d 1272-1273, 1279, 1282; Restatement, Trusts, Vol. 1, pp. 174-175. Many and extensive other rights and powers may be reserved by a settlor without defeating a trust, and there is a tendency to permit the settlor to retain considerable power over the trust property: 32 A.L.R.2d 1276, 1283, 1286, 1287, 1289; Farkas v. Williams, supra, — including the power or right to use, manage, control, improve, and lease it during his life, to enjoy the rents and profits, and to devise, mortgage, sell, and convey it: Kelly v. Parker, supra; to consume the principal: Farkas v. Williams, supra; to vote shares of stock included in the trust, to approve mortgage investments of the trustee, to have his debts paid after his decease out of the trust, to make a division of portions of the trust estate among his children, and to appoint a successor trustee: Bear v. Millikin Trust Co. (1929) 336 Ill. 366; to exercise any rights, options, or privileges in life insurance policies constituting the corpus, to change the beneficiary therein, to borrow money thereon, to pledge the policies, to receive dividends thereon, and to surrender such for their cash surrender valué: Gurnett v. Mutual Life Ins. Co. of New York (1934) 356 Ill. 612.

In addition to the other not unusual powers reserved by the settlor, set out above, it was provided in the trust agreement that during the lifetime and legal competency of the settlor the trustee should not exercise any of the powers granted without first obtaining the written consent of the settlor. It may have been primarily by reason of this language that the trial court here held that the settlor had retained absolute control of the trustee and that the trust agreement did not create a valid inter vivos trust. That particular provision, as such, was not in the declarations of trust in Farkas v. Williams, supra, but in view of the fact the settlor himself was also the trustee in that case and necessarily the same individual would not, as trustee, be exercising any powers without first, as settlor, consenting thereto, and in view of the other provisions of the declarations of trust there involved, that case is practically decisive that such a provision will not serve to render the instrument testamentary in character. Furthermore, in the case of Stouse v. First National Bank of Chicago, supra, referred to in Farkas v. Williams, supra, the trust agreement provided, inter alia, “the trustees shall exercise the powers conferred upon them only upon the written instructions of the said Sallie A. Hert (Settlor).” It may be observed that in that case also the settlor was one of the trustees. The Court there held the trust instrument created a valid trust, and made the following comment concerning this specific restriction upon the trustees, 32 A.L.R.2d pp. 1266-1267:

“. . . it is to be noted that this reserves to Mrs. Hert only the power to give instructions concerning the exercise of the specific powers conferred by the trust instrument. There was no reservation of authority in Mrs. Hert to instruct the trustees to do any act beyond the scope of the powers set forth in the instrument. She did not retain the power to deal with the property as she pleased, or to have possession of the property, or to prescribe details of administration not specified in the trust instrument. The other trustees were not merely her agents, because she could direct them only according to the terms of the trust instrument, and not according to her unlimited whims or desires.
“The appellants argue that the trustees could not perform any act until Mrs. Hert first gave them directions to proceed, with the result that Mrs. Hert was able to exercise absolute and unlimited control over the property until she chose to give some directions. This argument loses sight of the fact that the trustees had both the legal title and the possession of the trust assets, and Mrs. Hert could exercise no control over the assets except by giving directions within the terms of the trust instrument, unless she chose to revoke the trust.”

Both Scott, on Trusts, and Bogert, on Trusts, etc., recognize that the degree of reserved control in the settlor is the determining factor on the question of whether an instrument creates a valid inter vivos trust or only a mere agency: Scott on Trusts, Yol. 1, Sec. 57.2; Bogert on Trusts and Trustees, Yol. 1, Secs. 103, 104.

We are of the opinion that, under the circumstances here, the power reserved by Winifred B. Colby, the settlor, to the effect the trustee should not exercise any of its powers granted in the agreement without the prior written consent of the settlor, during her lifetime and legal competency, could be exercised, not according to her unlimited whims or desires, but only within the limits and in accordance with the terms of the trust agreement, and was not of such a degree as to reduce the trustee to the status of a mere agent. She could not instruct the trustee to do any act beyond the scope of the powers set forth in the trust agreement, but could only give instructions as to the exercise of the specific powers conferred by the trust instrument. She did not retain the power to deal with the property in trust as she pleased, or to have possession thereof, or to prescribe details of trust administration not specified in tbe agreement. Tbe trustee had tbe legal title to tbe trust assets and their possession. Unless she chose to revoke tbe trust her written consent or instructions to tbe trustee to exercise its powers therein granted could only be done within tbe terms of tbe trust agreement.

Furthermore, tbe formality of tbe transaction here, by which tbe settlor’s intentions were manifested by a written, rather lengthy, trust agreement, under seal, in a solemn and formal manner, she being specifically denominated tbe settlor, tbe bank tbe trustee, and others, tbe beneficiaries, tbe trust being assigned a number, tbe fist of tbe original corpus being appropriately initialed at several places for identification by her and tbe trust officer, and tbe president and trust officer of tbe trustee having executed it as well as her, —thus accomplishing tbe substance of tbe historical purpose of tbe statute on wills, — to prevent fraud, — is persuasive as to its validity as an inter vivos trust: Farkas v. Williams, supra; 32 A.L.R.2d 1277; Restatement, Trusts, Vol. 1, pp. 179-180.

Storkan v. Ziska (1950) 406 Ill. 259, cited by tbe appellee for tbe propositions that tbe question of paramount importance is tbe settlor’s intention, and that tbe same rules of construction as to wills and written instruments apply generally to tbe construction of trust agreements, was a complaint to construe a trust, involving matters not here involved, and though it recognizes those general propositions or principles it is not otherwise applicable. Smith v. Northern Trust Co. (1944) 322 Ill. App. 168, concerned an inter vivos trust agreement containing some of tbe rights reserved to the settlor in tbe agreement in tbe case at bar, but there was there involved tbe relationships between tbe settlor husband, deceased, and bis surviving wife, who, by an amendment to tbe trust, was not a beneficiary, and her statutory rights to a widow’s award and one-third of the estate, — the settlor husband having there put practically all his estate in the trust, — and as to the plaintiff wife the trust was held merely colorable, illusory, and invalid. The case involved entirely different considerations, relationships, and questions than the case at bar. Oswald v. Caldwell (1907) 225 Ill. 224 held that a deed and two associated written instruments were testamentary, had no binding force, and the property was intestate upon the grantor’s decease, — the title did not vest in the grantee during the life of the grantor, — it appearing the grantor received the net income therefrom after as well as before the deed, it continued to be insured in her name, the operating expenses were paid as before, there was no apparent change in ownership or possession, the grantor had not surrendered dominion over it, the grantee did not claim it, and she tried once to change the beneficiaries. The case is entirely dissimilar to the present case.

The trust agreement here created a valid inter vivos trust. The decree is, therefore, in error and is reversed, and the cause remanded, with directions to deny the motion of the defendant Martha Ellis Wagner for summary judgment, and for further proceedings not inconsistent herewith.

Reversed and remanded with directions.

DOVE, P. J. and EOVALDI, J., concur.


author: PRESIDING JUSTICE DOVE.

text:
    Warren T. Berg, and Esther Wiedrich, Administrator of Estate of Harold Wiedrich, Deceased, Plaintiffs-Appellants, v. Leonard Henry, Defendant-Appellee.
    Gen. No. 10,934.
    Second District.
    September 17, 1956.
    Rehearing denied January 14, 1957.
    Released for publication January 14, 1957.
    Strom and Strom, for plaintiffs-appellants; Alexander J. Strom, of counsel; Laurie W. Larson, Jr., and Henry H. Caldwell, for defendant-appellee; Laurie W. Larson, Jr., and Henry H. Caldwell, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to

be published in full.


author: PRESIDING JUSTICE DOYE.

text:
    City of Momence, Plaintiff-Appellant, v. Joseph R. Burnett and Indemnity Ins. Co. of North America, Defendants-Appellees.
    Gen. No. 10,973.
    Second District.
    November 21, 1956.
    Rehearing denied January 8, 1957.
    Released for publication January 8, 1957.
    Judgment reversed and cause remanded. V. A. Parish, and Thomas A. Nutting, for plaintiff-appellant; Butz, Blanke & Stith, for defendants-appellees.
   Opinion by

PRESIDING JUSTICE DOYE.

Not to be published in full.


author: PRESIDING JUSTICE ROBSON.

text:
    W. B. Hirschmann, Appellant, v. Emanuel Berman, Sigmund Berman, Addison Construction and Building Materials Co., an Illinois corporation, and Emanuel Berman and Sigmund Berman as trustees for Addison Cement Co., an Illinois corporation, Appellees.
    Gen. No. 46,899.
    First District, Second Division.
    November 27, 1956.
    Eeleased for publication January 8, 1957.
    John A. Brown, and Edmund W. Lord, for appellant; David F. Silverzweig, for appellees.
   Opinion by

PRESIDING JUSTICE ROBSON.

Not to be published in full.


author: JUDGE McCORMICK.

text:
    People of State of Illinois ex rel. John S. Rusch, Appellee, v. Chris Maner, also known as Joseph Giralamo, et al., Appellants.
    Gen. No. 46,871.
    First District, Second Division.
    November 27, 1956.
    Rehearing denied January 8, 1957.
    Released for publication January 8, 1957.
    Nathan M. Cohen, and James P. Piragine, for appellants; John F. Cashen, Jr., for appellee.
   Opinion by

JUDGE McCORMICK.

Not to be published in full.


author: JUSTICE CROW.

text:
    Dorothy Linenfelser and Roy Linenfelser, Appellants, v. Paul Clikeman, Appellee. Paul E. Clikeman, Appellee, v. Roy C. Linenfelser, Appellant.
    Gen. Nos. 10,914, 10,915.
    Second District.
    November 28, 1956.
    Rehearing denied January 14, 1957.
    Released for publication January 14, 1957.
    Case No. 10,914: Maynard & Maynard, for plaintiffs-appellants; James F. Maynard, of counsel; William H. Barriek and William C. Jackson, for appellee; William H. Barriek, of counsel. Case No. 10,915: Maynard & Maynard, for defendant-appellant; James F. Maynard, of counsel; Foltz, Haye & Keegan, for plaintiff-appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: JUDGE LEWE.

text:
    Charles Shemaitis, Appellant, v. Le Roy Froemke, Appellee.
    Gen. No. 46,932.
    First District, Third Division.
    November 28, 1956.
    Rehearing denied December 19, 1956.
    Released for publication January 8, 1957.
    William J. Teed, for appellant; Charles J. Gallagher, for appellee.
   Opinion by

JUDGE LEWE.

Not to be published in full.


author: JUSTICE CULBERTSON

text:
    Opal Cline (nee Gleason), Plaintiff-Appellant, v. Dallas Cline, and Persaw M. Cline, Administrators of Estate of John M. Cline, Deceased, William Cline et al., all Heirs-at-Law of John M. Cline, Deceased, Fern Hickey, Otherwise Known as Fern Hickey Cline, and Frank Fornoff (Eugene H. White, Successor), Judge of County Court of Wabash County, Illinois, Defendants-Appellees.
    Term No. 56-M-3.
    Fourth District.
    October 8, 1956.
    Released for publication February 4, 1957.

      A. K. Swann, of Evansville, Indiana, and Hill & Hill, and Lewis & Lewis, both of Benton, for plaintiff-appellant; A. K. Swann, of Evansville, Indiana, and Loren E. Lewis, and W. Joe Hill, both of Benton, of counsel.
    McGaughey, McGaughey & Henry, of Lawrenceville, Sorling, Catron & Hardin, of Springfield, Townsend, Townsend & Schafer, of Mt. Carmel, and Marshall Huser, of Wewoka, Oklahoma, attorneys for defendants-appellees; Guy E. McGaughey, Jr., of Lawrence-ville, George William Cullen, of Springfield, and Joel W. Townsend, of Mt. Carmel, of counsel.
   JUSTICE CULBERTSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Wahash County, dismissing the complaint of plaintiff, Opal Cline (nee Gleason), as against the defendants in this cause, seeking to establish a partnership between one John M. Cline, now deceased, and plaintiff, by the terms of which it was contended that 50% of all assets standing in the name of John Cline at his death on February 25, 1953, belonged to plaintiff. The widow of deceased and his heirs-at-law, as well as the administrator of the estate, and certain public officials, are named defendants in the action. There were two companion actions which are not involved on appeal in this cause. No questions are raised about the pleadings, and the only issue requiring determination in the equity suit was whether, under the evidence, plaintiff and John M. Cline, deceased, were partners in the business of contracting for the drilling of oil and gas wells and in the production of oil and gas, from 1944 to the date of the death of John M. Cline.

John M. Cline was killed in an automobile accident on February 25, 1953. He died intestate. He left surviving his widow, Fern Hickey Cline, from whom he had been separated since 1936. The evidence shows that John M. Cline was an oil field worker in Oklahoma in 1935, and that he and the plaintiff, Opal Gleason, came to the Centraba, Illinois oil field in 1939; that they lived together as man and wife in Centraba, in New Harmony, Indiana, and in Mt. Carmel, Hlinois, until the time of his death.

It is the contention of plaintiff in the action against the heirs-at-law and personal representatives of John M. Cline, that plaintiff and Cline were partners in the businesses conducted by Cline under various names. After the death of John M. Cline, plaintiff filed a verified inventory of co-partnership property in the Probate Court of Wabash County, Illinois, and in the County Court of Gibson County, Indiana, listing as partnership property all the assets of every kind and character of Cline. She thereafter filed the present action to establish that there was equal partnership between plaintiff and the deceased John M. Cline, and in support of such complaint offered evidence tending to show that she contributed her efforts, time and interest toward the business success of John M. Cline, including maintenance and care of the home in which he lived, gave him constant help and advice, and in earlier years contributed not only money, efforts and work, but aided in his support' and maintenance. The evidence tended to show that the success of John M. Cline came after he had left the widow, and in the period from 1936 to the time of his death.

There was some oral evidence of witnesses tending to support the contention of plaintiff, and some physical evidence which also tended to support such claim. There was also a very substantial volume of evidence in support of defendants’ position that there was no partnership as between plaintiff and decedent, John M. Cline, including a great volume of documentary evidence which was inconsistent with the oral testimony offered by plaintiff. This included public records.

A partnership is never created between parties by implication or operation of law, apart from an expressed or implied intention or agreement to constitute such partnership relationship (Bushnell v. Consolidated Ice Mach. Co., 138 Ill. 67, 74-75; Henry v. Darnall, 246 Ill. App. 250, 269). The existence of the partnership required the determination of the intention of the parties, together with all the facts and circumstances (Goacher v. Bates, 280 Ill. 372, 376; National Surety Co. v. T. B. Townsend Brick & Contracting Co., 176 Ill. 156). It is true, however, that written Articles of Agreement are not necessary to create a partnership, and that the relationship can be created by verbal agreement (Rizzo v. Rizzo, 3 Ill.2d 291; Einswiler v. Einswiler, 390 Ill. 286), and the existence of a partnership may be proved by parol evidence, without the necessity of producing any written articles or explaining their absence (Kane v. Wehner, 312 Ill. App. 391).

On appeal in this Court it is contended by plaintiff that the evidence clearly establishes such partnership and that a consideration of the entire record could not justify the decree. It is basically contended that the decree of the Trial Court is against the manifest weight of the evidence. We have reviewed the evidence as presented on appeal and cannot agree with such contention. Where a Chancellor has heard the testimony of witnesses in open court, his findings of fact are entitled to great weight and will not be disturbed unless clearly and palpably against the weight of the evidence (People ex rel. White v. Underwood, 1 Ill.2d 620, 627; Calcutt v. Gaylor, 415 Ill. 390), and all presumptions are indulged in favor of findings of fact by a Chancellor (Marine Trust Co. of Buffalo v. Reynolds, 308 Ill. App. 595; Union Drain. Dist. No. 5 v. Hamilton, 390 Ill. 487, 493).

It has frequently been determined that where the cause is heard by a Chancellor without a jury, his findings of fact are entitled to the same weight as a jury’s verdict, and that the Court should be guided by the same principles as would be applied had there been a jury verdict. The Trial Court in such case is in a position to observe the witnesses’ conduct and demeanor while testifying to determine their credibility, and to weigh the evidence and determine where the preponderance of the evidence lies (Compton v. School Directors of Dist. No. 14, Whiteside County, Illinois, 8 Ill.App.2d 243, 263).

In the instant case the volume of documentary evidence which supports the findings of the Chancellor cannot be disturbed (Welch v. Worsley, 330 Ill. 172, 214). It would serve no useful purpose to detail the evidence presented in favor of plaintiff’s contention, as well as the great volume of evidence submitted in support of defendants’ contention that there was no partnership in fact created. The record is replete with documentary evidence contrary to the contentions made by plaintiff in this cause. The Chancellor below saw the books and records which embraced the execution of Warranty Deeds, Mortgages, Leases, Notes, and Chattel Mortgages, Oil Sales Division Orders, individual as well as partnership Tax Returns, Social Security Tax Returns, Withholding Tax Returns, Partnership Agreements, Modification of Partnership Agreements, Formation and Dissolution of Partnerships, and various other matters. This Court cannot, under the facts in the record, make a finding that the decree of the Chancellor is contrary to the manifest weight of the evidence. There was substantial evidence in support of the position of defendants, and since the Decree of the Chancellor is supported by substantial evidence this Court must affirm such Decree.

Decree affirmed.

S CHEINEM AN, P. J. and BARDENS, J., concur.


text:
    Glen Koch, a Minor, by Vernon Koch, His Next Friend, and Vernon Koch, Plaintiffs-Appellees, v. Edward Lemmerman, and Carl Lemmerman, Defendants-Appellants.
    Term No. 56-M-2.
    Fourth District.
    October 8, 1956.
    Released for publication February 4, 1957.

      Schuwerk & Schuwerk, of Chester, and Francis ft. Wiley, of Decatur, for defendants-appellants.
    William E. Berry, and Paul H. Nehrt, both of Chester, for plaintiffs-appellees.
   JUSTICE CULBERTSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Randolph County on the verdict of a jury for $10,000 in favor of Glen Koch, a minor, and $2,000 in favor of Yernon Koch, his father and next friend. The judgment was recovered for personal injuries sustained by Glen Koch while he was riding as a guest passenger in an automobile driven by defendant Edward Lemmerman and owned by Carl Lemmerman.

The amended complaint consists of two counts, in one count of which wilful and wanton operation of the automobile by Edward Lemmerman, a minor, and tbe failure of Ms father, the other defendant, to direct and control the driving of the car, is the basis of the action. In such count recovery is sought for injury sustained by the minor. In the other count, the father of the minor seeks to recover for money expended for hospital and doctor bills by reason of the injuries to his son.

It is the contention of defendants on appeal in this Court that with all reasonable inferences therefrom, the evidence fails to show any wilful and wanton conduct on part of defendants, or either of them; and that, therefore, their motions for directed verdicts should have been allowed. It is also contended that in any event the verdict of the jury is contrary to the manifest weight of the evidence. Defendants also contend on appeal that the Trial Court improperly refused to withdraw certain subparagraphs of the amended complaint which charged wilful and wanton conduct in passing into the left lane when the lane was not free of oncoming traffic for a sufficient distance ahead to permit this to be done with safety; and for failure to keep a proper lookout ahead for oncoming traffic. It is also contended that the Court improperly refused a certain instruction on part of defendants and erroneously gave certain instructions on part of plaintiff. It is the further contention that under no circumstances can the father of defendant be held liable on the verdicts returned as against defendants.

Plaintiff contends that the amended complaint states a cause of action and that there is ample evidence in the record to sustain each of the charges of wilful and wanton conduct, and that the record is free from error in other respects as contended by defendants.

The record shows that the minor plaintiff was then seventeen years of age, and the minor defendant was then eighteen years of age, and were fellow students in school. On the morning in question the defendant minor, Edward Lemmerman, determined to drive to the town of Sparta to register for the Draft Board, and asked the plaintiff minor to go along. The father of the defendant minor also a defendant, decided to go along with the boys. He was the owner of the car and permitted his son to have free nse of it at all times. On the return from Sparta, the two boys were seated in the front seat, with Edward Lemmerman driving, and the father in the rear seat. The plaintiff minor was seated in the front seat facing the driver and partially turned to watch the defendant, Carl Lemmerman, in the rear seat. The automobile was then being driven on a paved state route at approximately fifty to fifty five miles per hour. Both defendants were familiar with the road. As a truck ahead of the car in which the parties were riding, was slowing down and signalling to make a left turn at an intersection, another truck was approaching from the south in the opposite traffic lane. It had been raining that morning and was misty. The pavement was damp, the shoulders were wet, and the concrete was also slippery. There was evidence that the car in which the parties were riding was coming along at a substantial rate of speed and that just before the collision the defendant, Carl Lemmerman, the father, cautioned his son about the pickup truck in front of him, telling him to “watch it.” There was some evidence that the minor defendant took his foot off the accelerator at the time the truck in front of him came to a stop, reduced his speed, and applied his brakes. As he did so, his automobile skidded sideways into the other lane and was hit immediately by the concrete truck.

There was a conflict of evidence as to exactly what happened but it is the plaintiff’s contention that defendants failed to have their car under control; and to keep a proper lookout as they approached the intersection; and that the wilful and wanton nature of the misconduct resulted from the fact that it was a straight, open, two-lane highway, where defendants could see for half a mile, and if they had kept a proper lookout ahead they knew they would have been required to slow down or stop prior to reaching the intersection behind the truck or pass in the left lane, which could not be done with safety because of the approach of the concrete truck.

It is apparent that under the record there was evidence upon which a jury could determine that defendants were guilty of wilful and wanton misconduct, in, (1) failing to keep a proper lookout in front of the automobile; (2) traveling at an excessive speed at the particular place and under the circumstances; or (3) attempting to pass into the left lane.

Wilful or wanton misconduct in causing an injury may consist of a failure to discover the danger from recklessness or carelessness where it could have been discovered by exercise of ordinary care (Trennert v. Coe, 4 Ill.App.2d 166, 175; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583). That was the theory set forth in the amended complaint and the theory upon which the case was tried.

Under the record there was sufficient evidence to make a prima facie case of wilful and wanton misconduct against defendants in favor of the minor plaintiff (Chapman v. B. & O. R. Co., 340 Ill. App. 475, 501; Schachtrup v. Hensel, 295 Ill. App. 303, 309-315). The father of the defendant minor, owner of the car, who was riding with him not only had the right to possession under the facts in the record, but also retained the power and right of controlling the manner in which it was driven, which would involve a duty to control the driver (Palmer v. Miller, 380 Ill. 256, 260; Kitch v. Adkins, 346 Ill. App. 342, 345).

On the record before us in this Court we cannot conclude that the verdict was against the manifest weight of the evidence. A Court on appeal will not substitute its judgment for that of the jury where the evidence is conflicting as in the record before us (Schneiderman v. Interstate Transit Lines, Inc., supra; Chapman v. B. & O. R. Co., supra). The Trial Court is normally in better position to pass on the weight of the evidence since such Court has an opportunity to see the witnesses and observe their conduct and demeanor upon the witness-stand.

There were a number of objections made on the ground of the giving of certain instructions on behalf of the plaintiffs, and failure to give one instruction on part of defendant. All of the instructions taken together and viewed in the light of the evidence correctly stated the law and did not confuse or mislead the jury with respect to principles of law applicable to the issues. Such minor irregularities as may appear in such series of instructions are not grounds for reversal (Palmer v. Miller, supra; Kavanaugh v. Washburn, 320 Ill. App. 250, 255). There was no reversible error in view of the fact that a reading of all of the instructions as a series shows that the right of defendants could not in any manner have been prejudiced by the giving of such instructions (Kavanaugh v. Washburn, supra).

The refusal of an instruction tendered by defendants, which sought to tell the jury in substance that there could be no recovery unless the skidding was caused by negligence of defendants, was proper in view of the fact that there were other questions before the jury such as speed and passing in the left lane; and in view of the further fact that the jury was instructed as to all general issues, and singling out one fact in evidence, as attempted in the particular instruction, would have been misleading to the jury. The instruction sought to have been given would have been directory and harmful for that reason alone. It is therefore our conclusion that there is no reversible error in the giving or refusal of instructions in this cause.

The judgments entered in this cause by the Circuit Court of Randolph County will, therefore, be affirmed.

Affirmed.

S CHEINEM AN, P. J. and BARDENS, J., concur.