author: JUDGE SCHWARTZ

text:
    Martha Cardenas, Appellant, v. Trinidad Cardenas, Appellee.
    Gen. No. 46,929.
    First District, Second Division.
    December 27, 1956.
    Rehearing denied January 15, 1957.
    Released for publication March 5, 1957.

      Joseph B. Gilbert, of Chicago, for appellant.
    Eugene Propp, of Chicago, for appellee.
   JUDGE SCHWARTZ

delivered the opinion of the court.

The primary question presented to us on this appeal is whether a court of equity, having entered a decree of annulment of a marriage, has jurisdiction with respect to matters relating to the care and custody of a minor child. It is a matter of first impression in Illinois.

On August 27,1954, plaintiff filed a suit for separate maintenance, later amended to divorce, alleging that she had been married in Chicago, January 6, 1949, and charging defendant with cruelty and failure to support. In an answer filed September 20,1954, defendant denied the charges, and on April 1, 1955, filed a counterclaim charging that plaintiff had entered into an earlier marriage in Mexico in June 1940 which was not dissolved until February 9, 1949, a little over a month after plaintiff and defendant had entered into their marriage. The counterclaim prayed for annulment or divorce and for the custody of a minor child born during their alleged marriage. That portion of the counterclaim praying for divorce was stricken upon order of the court August 8,1955, and on September 30, 1955, the court entered a decree dismissing plaintiff’s complaint for want of equity, decreeing annulment of the marriage as prayed in the counterclaim, and declaring that the child of the parties was and shall continue to be legitimate. On December 8, 1955, defendant petitioned the court for an order declaring his rights and duties concerning the minor child. On January 23, 1956 a motion by plaintiff to strike the petition was denied. Plaintiff electing to stand on her motion, the court entered an order granting defendant the right of visitation and ordering him to pay $12.50 per week for the support of the child. It is from this order that the appeal is taken by plaintiff, who does not desire the support money and is opposed to defendant’s having a right of visitation.

Plaintiff contends that no order respecting child care and custody can be entered in an annulment suit and relies on three cases, Thomas v. Thomas, 250 Ill. 354, 360; Bateman v. Bateman, 337 Ill. App. 7, 17; and Luczynski v. Luczynski, 327 Ill. App. 548, in support of her position.

In Thomas v. Thomas, supra, the defendant had filed a cross bill solely for the purpose of obtaining the care and custody of two children. The court overruled a demurrer to the cross bill and the plaintiff electing to stand by her demurrer, the cross bill was taken as confessed. The plaintiff moved the trial court to dismiss her bill of complaint, which the court denied. On appeal, the Supreme Court held that the bill for divorce should have been dismissed when the plaintiff so moved, and nothing would then remain but the cross bill seeking the care and custody of the children. This standing alone could not, the court said, be made the basis for equitable jurisdiction. Mr. Justice Carter dissented, relying upon the early case of Cowls v. Cowls, 3 Gilman 435 (1846). The other two cases cited by plaintiff follow the Thomas case.

These cases do not constitute a precedent for plaintiff’s position. They are authority only for the proposition that an order with respect to child care and custody cannot be entered where there is no decree affecting the marital status of the parents. Even to that extent they have not been adhered to literally, Cowls v. Cowls, supra, being quoted with approval to support the contrary position. In Parker v. Parker, 335 Ill. App. 293 (1948) the parents had been divorced in Indiana and custody of the child granted to the mother, but as the father was outside the jurisdiction of the court and was served by publication, no order for support was entered. Thereafter a petition in equity was filed in Illinois (where personal service was had on the father) on behalf of the child by the mother as next friend, solely for the purpose of requiring a contribution to support. The trial court held that a court of equity could not take jurisdiction of a petition for the support of a minor child except as incidental to a suit for divorce. The Appellate Court (citing Cowls v. Cowls, supra) reversed the order and directed the trial court to hear the petition on its merits.

While there is no statute with respect to annulment, the proceeding is recognized by the courts of this state and its status has been defined in People ex rel. Christiansen v. Connell, 2 Ill.2d 332, at pages 341-342, as follows:

“While in Illinois we have no act of the legislature expressly authorizing the courts to grant annulments and while the courts of equity of this state have gradually assumed jurisdiction to grant annulments in the absence of such a statute, the practice extending over a great number of years, we doubt not, in view of the considerations of public policy involved, that the legislature has a large measure of power which it may exercise in the regulation of such proceedings, and for the purpose of this decision it may be conceded without deciding that the origin of authority to annul is legislative in nature. Such a view accords with the history of the annulment action in England, and the existence of special statutes regulating annulment in many of the States.”

A suit for annulment thus has a definite place in our judicial structure, a curious one to be sure, in that like the mule it is without pride of ancestry, but unlike that useful animal, progeny is plentiful. Does it not follow that having taken jurisdiction of an annulment proceeding, the court should have power to provide for the care of the children involved?

As early as Cowls v. Cowls, 3 Gilman 435 (1846) our courts have emphasized the importance of equity’s role in providing for the care of children when marital ties are severed. In Thomas v. Thomas, supra, the case relied on by plaintiff, the court said the filing of the original bill for divorce brought the children within the jurisdiction of the court, that a cross bill was germane in seeking to have the care and custody of the children determined, even though the complaint did not so pray, and that at any time after the bill was filed questions relating thereto could have been brought before the court. While this had its basis in the statute relating to divorce, the opinion reveals the extent to which courts consider the care and custody of children an essential part of their function in a suit that seeks to sever the marital relationship. To the same effect is Parker v. Parker, 335 Ill. App. 293, 301, wherein Mr. Justice Bristow speaking for the court said, p. 301:

“. . . the cases are replete with declarations of the law that courts of equity have plenary jurisdiction over the persons and estates of infants, and that in cases where the rights of minors are concerned, they are the wards of the court, which will protect their interests. (Cowls v. Cowls, 3 Gilman, 435; Clarke v. Chicago Title & Trust Co., 393 Ill. 419; Swiney v. Womack, 343 Ill. 278, 287; Thomas v. Thomas, 250 Ill. 354). The petition herein presents the minor’s right to support from her father, which right is independent of the obligations obtaining between her parents, and is, therefore, within the special province of the court of equity with its tradition of protecting the interests and estates of minors.”

Such authority as there is in other states supports defendant’s position that the court has jurisdiction in an annulment suit to provide for the care and custody of a child. Henderson v. Henderson, 187 Va. 121, 46 S.E.2d 10 (1948); Stone v. Stone, 193 Okla. 458, 145 P.2d 212 (1944); Bass v. Ervin, 177 Miss. 46, 170 So. 673 (1936); Barker v. Barker, 31 Wash.2d 506, 197 P.2d 439 (1948); Peterson v. Peterson, 164 Wash. 573, 3 P.2d 1007.

In Henderson v. Henderson, supra, the Supreme Court of Virginia held that the “right of a father to have his marriage annulled permits him to be relieved of his obligation as a husband, but does not permit him to rid himself of his obligations as a father.” After holding that the child was legitimate under the provisions of the Virginia Code, the court held it was proper for a court upon annulling a marriage to make such further decree as it deemed expedient for the care, custody and maintenance of an infant child of the parties. While this was supported by an interpretation of the statutes, it is apparent from a reading of the opinion that the court considered it to be an inherent part of its jurisdiction. In Stone v. Stone, supra, no statute covered the question, but the court said, p. 214:

“While we apparently have no statute on the subject we are of the opinion that the provision of 12 O. S. 1941, Sec. 1283, declaring that the children of the voidable marriage shall be legitimate, must be deemed to impliedly grant the power to provide for the future custody and support of such children when avoiding the marriage. The Supreme court of Arkansas has so construed a similar statute, saying that ‘while the law permits him to be relieved of his obligations as a husband, it does not relieve him from those of a father.’ Kibler v. Kibler, 180 Ark. 1152, 24 S.W.2d 867, 869.”

In Bass v. Ervin, supra, the marriage was annulled on the ground of coercion. In the annulment suit the mother did not ask for support of the child but thereafter filed a bill of complaint for its support. The court held that a child born after the ceremonial marriage and before annulment was a legitimate child and that even though a decree made no provision therefor, it was still the duty of the father to support the child. In Barker v. Barker, supra, the marriage was annulled because of a prior existing marriage and the court made provision for the care and custody of the child of the parties. In Peterson v. Peterson, supra, a decree of annulment being entered'the court provided for the care and custody of a child of the parties. It did so by applying to annulment cases the statutory provision relating to the care and custody of children in divorce cases and by holding that this was within the inherent jurisdiction of a court of equity.

It is our conclusion that while this is a matter of first impression in this state, public policy as laid down by statute and judicial decision support defendant’s position that a court of equity has jurisdiction to provide for the care and custody of children in annulment cases.

Plaintiff makes the further point that this was a void marriage, that the issue of a void marriage is illegitimate, and that the Legitimating Act of 1923 cannot be construed as conferring any rights or imposing any obligations on the father with respect to the child of such a marriage. In a consideration of this question we are confronted by a group of confusing statutes and a maze of legal principles and pronouncements of public policy. This is particularly true where the ground for annulment, as in the instant case, was a prior marriage which had not been dissolved. There is no question but that numerous decisions of our Supreme Court have declared bigamous marriages to be void ab initio. Cartwright v. McGown, 121 Ill. 388 (1887); Polokow Corp. v. Industrial Commission, 336 Ill. 395 (1929); Crysler v. Crysler, 330 Ill. 74 (1928); Crittenden v. Hindman, 271 Ill. 577 (1916); Cole v. Cole, 153 Ill. 585 (1894); Schmisseur v. Beatrie, 147 Ill. 210 (1893); Gordon v. Gordon, 141 Ill. 160. But these cases are by no means persuasive on the status of children of such marriages. For that we must examine the various statutes bearing on this question. They may be summarized as follows:

Ch. 33, Par. 1, Ill. Rev. Stat., 1844-1845, included bigamy among the grounds for divorce, but contained a further provision that “no such divorce shall, in any wise, affect the legitimacy of the children of such marriage, except in cases where the marriage shall be declared void on the grounds of a prior marriage.” The 1869 statute contains the same language with respect to bigamy but provides that when a divorce is granted to a woman who in good faith had intermarried with a man having another wife, the court could nevertheless allow the complainant alimony and maintenance as in other cases, but no such allowance was to be made as would be inconsistent with the rights of the other wife. An 1874 amendment incorporated the same language. These statutes are substantially the same today insofar as they relate to the question here under consideration. Since 1874 the first three sections of the Marriage Act have provided that blood relatives, persons mentally unsound, and males and females under certain proscribed ages shall not have the capacity to enter a marriage contract. Bigamists are not incapacitated by this section. In 1923 a provision was added to the Marriage Act (Ch. 89, Sec. 17a, Ill. Rev. Stat. 1955) which legitimated the children of a marriage in which a ceremony recognized by law had been performed.

In Harris v. Harris, 8 Ill. App. 57 (1880) the court held that in a suit for divorce on the ground of bigamy the prior spouse will be presumed dead, with the burden on the plaintiff to prove the contrary. Where there was no direct evidence that the first marriage was still in effect at the time the second was entered into, the validity of the second marriage has been upheld by presuming the death of the former spouse, as in Harris v. Harris, supra, or that the first marriage had been terminated by divorce. Johnson v. Johnson, 114 Ill. 611 (1887); Potter v. Clapp, 203 Ill. 592 (1903). The policy behind these presumptions is significant.

Thus it appears that while a bigamous marriage is said to be void ab initio, it is nevertheless a ground for divorce, which presupposes a valid marriage. It is also treated as valid insofar as alimony and maintenance for the wife are concerned when she was the guiltless party and entered into the marriage in good faith. It also appears from the foregoing that the Marriage Act, purporting to list those who have no capacity to enter into a marriage contract, does not include bigamists. And finally, we have the Legitimating Act of 1923 which, without expressly repealing, nevertheless is in conflict with the other statutes cited. (Ch. 40, Sec. 4, Ill. Rev. Stat. 1955.) How are the antinomies in these laws to be resolved? Are children of such marriages to be treated differently from those of divorced parents?

There was, during the period in which these statutes were passed and these decisions rendered, a great change in the prevailing concepts and practices with respect to the marital relationship. Divorce increased at an astounding rate, from 82 out of 1000 marriages in 1900 to 252 out of 1000 in 1950. In 1946 the cost of aid to dependent children from broken homes in Illinois was $5,756,049. In 1951 the figure had increased to $13,912,000 (Chicago Bar Record, Vol. XXXIV, No. 6, March 1953). In 1950 the children of broken homes contributed 92% of the total registration in so-called “orphanages,” that is, only 8% of those in orphanages were orphans in the ordinary sense. Thus the care of children from broken homes became a primary social problem. In an effort to stop the flood of broken family ties and revive the stability and dignity of marriage and the family, many laws were passed, including those prohibiting remarriage within a limited period after divorce and making such remarriages null and void. These laws were repealed after a period and new devices such as a sixty day “cooling off” period provided for. Coetaneously there came a great increase in the number of illegitimate children. Some were branded thus because of remarriages of parents within the prohibited period or of marriages duly celebrated and then annulled for other reasons. To mitigate their lot the Legitimating Act of 1923, to which we have before referred (Ch. 89, Sec. 17a, Ill. Rev. Stat. 1955) was passed. It is the overriding law on the question before this court. The statute reads as follows:

“Whenever persons attempt or have attempted to contract or be joined in marriage, and some form of marriage ceremony recognized by law has been performed in apparent compliance with the law in relation to marriage, and, pursuant to such attempt to contract and be joined in marriage, cohabit or have cohabited together as husband and wife, and there is issue born after the taking effect of this Act as a result of such cohabitation, such issue is hereby made legitimate and may take the name of the father, though such attempted marriage is declared void or might be declared void, for any reason.”

This statute was not passed merely to give a child a name although it does include that specific provision. It was, as stated in the able and enlightened opinion with respect to a similar law, “founded in benevolence and charity” and its humanitarian principles require that it be liberally construed to effectuate its benign purpose. Henderson v. Henderson, supra. Such children not only have their father’s name, they are entitled to look for and demand his care and protection. If we were to hold otherwise, we would have the anomaly of permitting, under circumstances such as exist here, a choice of remedy by divorce or annulment. If by divorce, then upon the granting of a decree the care and custody of a child could be provided for. If by annulment, the parent could escape such responsibility. It would be as if courts had granted one method of relief for parents callous and indifferent to the care and custody of their children and another for those who recognize their responsibility. There is no rational basis for such a distinction. Our conclusion is that defendant owed his child the duty of support and within the discretion of the court there was the correlative right of visitation.

Certain other aspects of this case are unique. The mother scorns the proposal of the father to contribute to the child’s support and to have the right of visitation. Whether this is based on her belief that the child could be better cared for without the father’s interference or whether it is motivated by bitterness against him, we do not know. That is a matter for the consideration of the chancellor. It is not the parties whose desires or interest control the court in its determination of this matter. In Emrich v. McNeil, 126 F.2d 841 (1942) the court said, p. 844:

“But the important consideration which requires that the equity court — a court of competent jurisdiction — shall retain continuing and exclusive jurisdiction in the present case is one of public policy, i.e., the welfare of the minor child. Under such circumstances it is generally recognized that, independent of statute, a court of chancery has jurisdiction over the custody and maintenance of such a child. ... It has power to change the custody of the child; to enforce the parental obligation to provide maintenance; and, if necessary, to remove the child from the custody of both parents.”

It does not appear from the record in the instant case whether the court heard evidence which might have a bearing on the stability and tranquillity which are essential to the rearing of children. We assume the chancellor took that into consideration. However, the order in this case is not permanent. If the mother persists in her opinion that it is for the best interests of the child not to see his father, she can present her case on that point to the court after having tried the other course for a reasonable time.

The order was not entered within thirty days after the entry of the decree. However, because of the state’s interest, the care and custody of children of a severed marital relationship is always within the jurisdiction of the court which granted the divorce, and the court may entertain a petition with respect thereto at any time. Freestate v. Freestate, 244 Ill. App. 166 (1927), where an order was entered more than ten years after the divorce; Kelley v. Kelley, 317 Ill. 104 (1925); Parker v. Parker, 335 Ill. App. 293 (1948). The same rule should apply with respect to annulment. The order of the chancellor is affirmed.

Order affirmed.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE SCHEINEMAN

license: Public Domain

text:
    Henry H. Michel, et al., Plaintiffs-Appellants, v. Carpenters’ District Council of Madison County, Illinois, et al., Defendants-Appellees.
    Term No. 56-O-8.
    Fourth District.
    January 14, 1957.
    Rehearing denied March 1, 1957.
    Released for publication March 1, 1957.

      Gilbert Rosch, of Granite City, for plaintiffs-appellants.
    George Moran, of Granite City, and Michael Kinney, of Wood River, for defendants-appellees.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of the court.

Henry H. Michel, Harold A. Hanlon, and Michael J. Lesko, plaintiffs, filed this suit against the Carpenters’ District Council of Madison County, Illinois, and others, seeking to have set aside the sentence and punishment imposed upon them by said District Council, praying an accounting by the acting officers of the council, and for damages. The trial court sustained the defendants’ motion to dismiss, refused a tendered amended complaint, and entered final judgment of dismissal, from which this appeal was perfected.

The complaint alleges that plaintiffs are members of the local union of carpenters, the international union, and of the District Council; that the council adopted a constitution at a meeting in 1952 which provided that the “next election” should be in 1956; that in the interim certain named defendants have acted as officers of the council “by usurpation”; that these purported officers charged the plaintiffs with violations of the constitution, and caused them to be tried by the District Council, where they were convicted and fined $500 each and placed on probation for 5 years, which deprives them of their rights in the union. There are also allegations that the purported officers handled the funds of the council, received and disbursed the dues, assessments, etc., in specified amounts.

The complaint is obscure in a number of respects. The only provision of the constitution set forth is the one providing that the next election of officers shall be in 1956. There is also an allegation that there is no provision for interim officers. However, there is no claim that the District Council was not duly organized in 1952, in fact it is alleged that the constitution was adopted by vote, and approved by the international union. Whether the interim acting officers are those who were the officers at the organization meeting is not shown nor is there any claim that others are the appropriate officers.

There is nothing to show that charges may only be preferred by duly elected officers. There is nothing to show that the District Council is not the proper forum for a trial, nor any claim of lack of notice or other defects in procedure.

So far as accounting is concerned, there is no allegation of misappropriation of funds, nor any other basis purporting to justify a court in ordering an accounting.

The motion of the defendants attacked the complaint in a number of respects. Among others is the affirmative'showing under Section 48 (i) of the Civil Practice Act [111. Rev. Stats. 1955, ch. 110, § 48 — (i)] that the suit is barred by reason of the rights of appeal within the union, which the plaintiffs did not utilize. A copy of the constitution is made a part of the motion and is not denied. It specifically designates the District Council as the forum of trial. It also provides for review on appeal to the General President, further appeal to the General Executive Board, and a final appeal to the General Convention. A further provision requires that a member use his appellate rights in the union before resort to the civil courts.

This latter provision is simply a statement of the law which would apply anyway. A member of a voluntary association necessarily agrees to the reasonable rules and regulations of the order. Bostedo v. Chicago Board of Trade, 227 Ill. 90, 81 N. E. 12. He must avail himself of the remedies provided by his association, before asking for equitable relief. Engel v. Walsh, 258 Ill. 98, 101 N. E. 222.

There are exceptional circumstances in which a court may intervene without the plaintiff having exhausted his organization’s remedies. These are discussed in People v. Order of Foresters, 162 Ill. 78, in which there was some question as to the sufficiency of notice of trial, but on page 85 the court concluded the notice was sufficient, and held the party was obliged to proceed within the order. See also a discussion of these principles in Werner v. International Association of Machinists, 11 Ill.App.2d 258, 137 N.E.2d 100.

The plaintiffs in this case have failed by any apt averments to bring themselves within any of the exceptions. Therefore the trial court properly held the convictions and sentences were not subject to review by the court. The claims for damages depend upon a reversal of those convictions and sentences, hence they also fail.

The complaint contains no allegations showing any misuse of funds or other basis by which any money is due plaintiffs from the defendants by way of accounting, nor any other basis to demand an accounting, and the court properly denied this prayer.

The plaintiffs have made no attempt to attack the action of the trial court in refusing their amended complaint, nor is any assertion made that it would remedy the defects, so that nothing is before this court in that respect.

The judgment of dismissal was correct and is affirmed.

Judgment affirmed.

BARDENS and CULBERTSON, JJ., concur.


author: PRESIDING JUSTICE FEINBERG

text:
    Julie Gosman Burnet, as Executrix of the Last Will of Anna Burnet Hardin, Deceased, Appellant, v. First National Bank of Chicago, et al., Appellees.
    Gen. No. 46,969.
    First District, Third Division.
    January 16, 1957.
    Rehearing denied February 6, 1957.
    Released for publication March 5, 1957.

      Rothschild, Hart, Stevens & Barry, for plaintiff-appellant, Julie Gosman Burnet, as Executrix of the Last Will of Anna Burnet Hardin, deceased.
    Johnston, Thompson, Raymond, Mayer & Jenner, Harold J. Clark, and Charles Levitón, all of Chicago, for defendants-appellees; Edward R. Johnston, and Kenneth J. Burns, Jr., of counsel.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the court.

Plaintiff, as executrix of the last will of Anna Burnet Hardin, deceased, filed her complaint, as amended, attacking the validity of two inter vivos trusts, which shall for convenience be referred to as trust No. 3639 and trust No. 20673, created by her husband, John H. Hardin. It is alleged that trusts No. 3639 and No. 20673 were created by instruments in writing dated March 11,1924, and November 1, 1938, respectively. It is further alleged that in creating said trusts, Hardin used and deposited in said trusts the separate property, money and securities belonging to his wife. The complaint prays that an implied trust be impressed upon the property in said two trusts, and the trustees presently in possession be declared trustees for Anna Hardin, her heirs, executors and assigns; that an accounting be had and the present trustees of said trust be compelled to pay over to plaintiff what may be found to be the money and property in their hands belonging to her in her representative capacity; and that judgment be entered for plaintiff for any balance that may be due.

The chancellor heard this cause upon the complaint and answers, testimony adduced in open court, as well as certain stipulations of fact. A decree dismissing the complaint for want of equity was entered, from which decree plaintiff appeals. The record is voluminous, consisting of over 2400 pages and over 250 exhibits.

Plaintiff contends (1) that the two trusts were inter vivos trusts, in which the donor reserved virtually absolute control and the power of revocation; (2) that Mrs. Hardin’s separate property was by her authority in writing placed in the custody and control of her husband, and that he was her fiduciary in the management and disposition of her said property; (3) that such of her property as is traceable to the two trusts created by him belongs to her estate, and that the present trustees are in duty bound to account therefor; (4) that at the time of his death, he and his wife were domiciled in California, and under the California statute, upon his death she became vested with a one-half interest in his personal property; and (5) that the trusts, though absolute in form, were merely colorable and illusory, constitute a fraud upon the marital rights of Mrs. Hardin, and cannot be employed to divest her of her statutory marital rights, any more than a will could.

In order to better understand these contentions, we deem it necessary to detail the salient facts, which reveal the background of the donor and his wife, and their relationship with Harry L. Wells and Northwestern University long prior to and at the time of the creation of said trust, which we think have a material bearing upon the donor’s intention in creating said trusts.

The relevant facts are virtually undisputed. There appears in the record a series of stipulations of fact, identified as stipulations A, B, C and D, to which we shall make reference.

Trust No. 3639 named the First Trust and Savings Bank of Chicago (later merged with the First National Bank of Chicago) as trustee. The trust property consisted entirely of insurance policies upon the life of John Hardin. It provided that any proceeds realized from the conversion or expiration of said policies could be invested and reinvested by the trustee. The entire net income from said trust was to be paid to Anna, his wife, during her lifetime, and in the event she predeceased him, upon his death the trust should terminate and be distributed as therein provided. John Hardin reserved to himself the power to revoke, modify or alter, in whole or in part, the said trust instrument. It was stipulated that at no time was any premium upon the policies paid from the trust but was paid by him.

Trust No. 20673 named the First National Bank of Chicago and the donor Hardin co-trustees, and Harry L. Wells as successor trustee to Hardin in the event of his death, resignation or inability to act. A schedule of the securities placed in said trust was attached to the trust agreement.

In this trust agreement, Hardin reserved to himself broad powers of revocation, amendment and removal of the corporate trustee. The net income of the trust was payable to Hardin, the donor, during his lifetime, and upon his death to his wife Anna. Upon her death, the net income was payable to his sister, G-ertrude Hardin, during her lifetime, if she survived the donor and his wife. Upon the death of Gertrude, the trustees “shall” divide said trust estate into two equal shares, one share to go to Northwestern University of Evanston, Illinois, and the other half to be divided into two equal portions, designated as Share “A” and Share “B.” The income and distribution from said Shares “A” and “B” were to be made in accordance with the provisions therein set forth. The trust property was to be managed by said co-trustees.

Pursuant to the reservation of power to amend, Hardin, the donor, executed several amendments. On October 19, 1939, the donor amended the trust agreement, in which he gave the corporate trustee the right to make any sale or investment of the property comprising the trust, upon the written approval of Conrad Poppenhusen, the donor’s attorney, and no sale or investment made upon such approval need require the approval of Hardin, the donor, as co-trustee.

On March 14,1940, he again amended the trust agreement, by directing the bank to pay to Mrs. Hardin $100 a month out of the net income of said trust, and to credit her checking account at said bank.

On July 13, 1949, he again amended the trust agreement, in which he provided that in the event Mrs. Hardin survives the donor, the trust estate should be divided into two equal shares, designated as “A” and “B,” Share “A” to be held in trust as a separate trust for the benefit of Mrs. Hardin, subject to her power of testamentary disposition. In the event of Mrs. Hardin’s death without the exercise of the power of appointment and testamentary disposition, then Share “A” should be payable to Northwestern University and Share “B” for the benefit of those named therein. The trustees were to exercise their discretion as between Shares “A” and “B” in such manner as would provide for the “maximum marital deduction under the present Internal Revenue Code.”

On October 18, 1949, the donor further amended the trust agreement and therein cancelled the provision in the amendment of July 13, 1949, which gave Anna Hardin the power of appointment and testamentary disposition. This cancellation came after the wife had, by a codicil to her will, disclaimed any intention to exercise the power of appointment.

On November 25, 1951, the donor further amended the trust agreement by making certain specific bequests to be payable to the parties therein named, and providing that the trust “shall,” upon his death, pay the net. income from the entire trust to Anna Hardin during her lifetime.

For convenience, we shall refer to John Hardin as the “donor,” Anna Hardin as the “wife,” and Northwestern University as the “University.”

The donor and his wife were married July 8, 1907, and lived together in Evanston, Illinois, until 1909, when they moved into their home in Hubbard Woods, Illinois. The donor on September 18, 1907, purchased and paid $23,159 for two of the three parcels which comprised the Hubbard Woods property, and the title of record was placed in him. On September 30, 1908, he acquired the third parcel of said Hubbard Woods property, with title in his name. There is no evidence in the record that any of Mrs. Hardin’s money was used to purchase the three parcels.

Desiring to construct a home upon the Hubbard Woods property, the wife, who was a beneficiary in a trust estate created by her mother, called upon the trustee of that trust to give her $30,000, being the amount necessary for the construction of the home. It appears that under the provisions of her mother’s trust, the trustee required that the title of record to the two parcels upon which the home was to be constructed be shown in her name. To accomplish this, title to the two parcels was conveyed to the wife on September 3,1908. The home was constructed, and the donor and his wife moved in during 1909. The third parcel was conveyed to the wife on January 2,1926.

On April 20,1926, the Hubbard Woods property was sold for $200,000, and the entire proceeds were placed in an account of the wife at the First National Bank of Chicago, referred to in the record as agency account No. 3628. This account was established March 7, 1924, and maintained by her until her death. On the day the agency account was created, she executed a written authority, addressed to the bank, to allow the donor “full control of said account and full access to and control over the securities contained therein and any income or proceeds thereof.” Out of the proceeds of the sale, $10,178.61 was paid out in connection with the sale. An additional $10,011.11 was withdrawn by the donor to repay his personal loan, and $9,781.35 was credited to Mrs. Hardin’s checking account. The remaining $170,028.93 was invested in various securities and deposited in the wife’s agency account. In November, 1927, the wife received $24,812.50, realized from the sale of some bonds purchased with the proceeds of the sale of the Hubbard Woods property.

From time to time the donor withdrew securities from said agency account and deposited the same in his personal agency account maintained at the same bank, identified as account No. 5580. The securities in the wife’s agency account and the donor’s agency account at the First National Bank were placed in said trust No. 20673. Securities were from time to time withdrawn from the latter trust, and other securities and cash substituted therefor.

It was stipulated (stipulation A) that into this trust the donor and his wife jointly conveyed real estate in November, 1938; that in June, 1941, she transferred into the trust 19 shares of the capital stock of the Middle West Corporation, in her name and endorsed by her; that on August 15, 1946, they jointly transferred to this trust a promissory note, a real estate mortgage, as well as a chattel mortgage representing the proceeds of the sale of a summer camp in Wisconsin, which they held in joint tenancy; and that into this trust the donor placed the American Optical Company stock, which the donor had acquired in exchange for his corporate stock in F. A. Hardy and Company, which merged with the American Optical Company. The donor had acquired substantially all of the stock of F. A. Hardy and Company, for which he paid approximately $134,190. It appears that over a period of nine years, beginning in 1911, he received over $300,000 as dividends on the Hardy and Company stock. The merger occurred in 1922. On December 15, 1938, the bank carried the subject property of this trust at a value of $579,327.12, of which $223,621.12 represented the given value of general market stocks and bonds in the trust. The American Optical Company stock value was carried at $281,206. He also placed in the trust the stock in the First National Bank of Chicago. At the time of the death of the donor, the value of the trust property was in excess of $900,000.

The donor and his wife lived together approximately 45 years. He died September 21, 1952, at the age of 86 years, and she died on Janaury 24, 1953, at the age of 82 years. No children were born of the marriage and none adopted. The donor and Ms wife were then domiciled in the state of California. They lived in a home purchased and paid for by the donor in Pasadena, California, from November 5, 1938, up to the time of their death. The donor left him surviving his wife, his sister, Gertrude Hardin, and two nieces. His wife left her surviving, so far as the record discloses, only the plaintiff, her sister-in-law.

The donor was elected a member of the board of trustees of the University and served from 1917 to 1932, when he became president of the board of trustees, which position he held until July, 1935, and was then elected a life trustee of the University. He was also a director of the First National Bank of Chicago from 1920 until 1934. He always referred to his wife and the University as his two “loves.” His relations to the University and its president, as well as the business manager, Harry Wells, were very intimate and confidential. In the planning of his trust estate, he conferred with his attorney, Poppenhusen, as well as with Wells and Williams of the First National Bank, who was also a trustee of the University. A series of conferences were had, leading to the creation of trust No. 20673, in which the donor made it clear to Poppenhusen and to Wells that his primary desire was to fully protect his wife during her lifetime. She had a life income of $10,000 a year from separate trust estates created hy her father and mother, and that, together with the net income she was to receive from trust estate No. 3639 and No. 20673, the donor felt was sufficient to generously provide for her during her lifetime. During his life, he amply provided for her. She was admittedly an intellectual woman, as is obvious from the testimony, and letters appearing in the record, which she had from time to time written concerning her husband’s business affairs as well as her own.

The donor, in his last will and testament dated April 29, 1943, after making a specific bequest of $2,000 to a named person, bequeathed the residue of his estate to his wife, in the event she survived him. In a codicil to said will, dated July 9, 1949, he increased the specific bequest from $2,000 to $5,000, and in the codicil made reference to the living trust he had executed, naming the First National Bank of Chicago as trustee. In all other respects his last will and testament was to remain in full force and effect.

The inventory filed in his estate showed a value slightly in excess of $30,000. It appears further that following his death the wife, up to the time of her death, received approximately $14,000 as income from trust No. 20673. She received no income from trust No. 3639 because of the short interval between his death and her death, and no income was received by the trustees from the insurance policies in that trust.

The wife’s last will, dated October 28, 1952, after a small bequest to Louise Harwood, bequeathed the residue of the estate to plaintiff, Julia Burnet, her sister-in-law.

It is important to understand the attitude of the wife concerning the trusts created by the donor, her knowledge of what property was involved in the trusts, including her own property, and her willingness that the trusts be devoted to the purposes therein named.

Louise Harwood, a cousin to the wife, called as a witness by plaintiff, testified that she had a conversation with the wife concerning the trust created by the donor, and that she told her “he had gotten his affairs in shape and she was delighted and very much relieved”; and “I am perfectly satisfied with the things lie has done for me and I am glad that he is doing it for his sister [Gertrude].”

The deposition of the witness, Mrs. Irish, taken on behalf of the defendants, was offered in evidence by plaintiff. She testified she had known the wife for a period of 26 years. They had a mutual interest in many community activities. She testified that the wife mentioned the fact that “John’s property was in trust in Chicago,” and “she knew that Northwestern University was to be a beneficiary under John’s trust”; that she disclosed a very keen and devoted interest in the University and was proud of Ms connection with the University.

In October, 1952, the wife wrote to "Wells, referring to the memorial bookplate to be placed in the Deering Library of the University for future generations to see, and stated “it gave me a keen appreciation of the thought that John will always be a part of the University he loved,” and also “His making you a co-trustee of the trust funds established at the First National Bank in Chicago gives me a great feeling of security.” On October 9,1952, Wells wrote to the wife, “The Trust will be carried out to the best of my ability — having in mind the preservation and enhancement, if possible, of the income which belongs to you.”

Robert H. Dunlap, a member of the California bar, who handled the donor’s legal business as well as that of the wife, called as a witness for defendants, reluctantly testified because of his relationship to the donor and his wife as attorney, but was directed by the court to testify. He testified that he prepared the amendment to trust No. 20673, dated July 13, 1949, after collaboration with Poppenhusen, being the amendment which gave the wife the power of appointment and testamentary disposition of one-half of the trust, and he presented it to the donor for signature on the day the amendment bore date. There were present the donor and his wife, Kimberly, a brother-in-law of the donor, and the witness’s secretary. On that occasion he explained to the donor and his wife the meaning of the amendment and the difference between the original provisions of the trust and the amendment, and that if the amendment remains unchanged, the wife would be entitled to dispose of one-half of the trust in her will in such manner as she sees fit. The wife then said, “I have known about John’s plans, the benefits to Northwestern and his nieces, and I don’t want him to do anything about it and I wouldn’t ever do anything about it,” or words to that effect, “I wouldn’t even do anything about it if I outlived him.”

He further testified that he drew three separate wills for her, one on September 1, 1949, another on August 8, 1951, and the last October 28, 1952. He had drawn a codicil to her will dated September 1, 1949, in which she expressly disclaimed any intention to exercise the power of appointment conferred upon her by the trust amendment. When he drew her second will on August 8, 1951, he reminded her that she was present in July on the date when the amendment was executed, and told her she would have the power of testamentary disposition; that she stated on that occasion, “I know John’s plans. ... he wants to leave half of it to Northwestern, and the other half to his nieces, and I don’t want to disturb that arrangement that he planned on so long. He has been a Trustee, and has been Chairman of the Board of Trustees of Northwestern, and he has had it in his mind for a long time to build an administration building for Northwestern.”

On each of the occasions when he prepared these wills for the wife, he. reviewed her holdings in cash and securities, and on October 28,1952, she referred to the assets she had, and asked him, “On the basis of that, how much do I have to leave ?” He put down the figures in a rough estimate, and it appeared that she would leave approximately between $50,000 and $60,000, and she said, “Well, I wish there were more than fifty or sixty thousand, because I would like to leave more to the charities, but I can’t do it.” When the donor died, the wife asked the witness how much she would be getting from the trust, and he told her that she had seen the records every month, the same as he had, and that it would be approximately $35,000 or $36,000 a year income instead of the $100 a month she had been receiving from the trust while the donor was alive. He was certain that the wife knew of the amendment to the trust dated October 18, 1949, which rescinded her power of appointment. A copy of it was found in her home by plaintiff, and plaintiff had told the witness, “I know about the change back to the original form. John has changed it back to original form.”

The witness further testified that in all those discussions with the wife, he advised her fully of her rights in the principal of the trust at the First National Bank. It appears that the wife wanted the donor to have everything she possessed, as evidenced by a letter to the donor from her, in which she said, “In the event of my death — yon know — my wishes — .” After referring to specific items of furniture and jewelry to persons designated in the letter, she concluded her letter with: “For yourself — all—and everything I have. Your devoted wife.”

On cross-examination, plaintiff testified that she believed “Mr. Hardin discussed the creation of the trust with Mrs. Hardin at the time he created it, or at least went over the fact that he had created such a trust.”

"We recognize the principles of law urged by plaintiff respecting the duty of a fiduciary and a breach thereof, and the right to follow the property of the principal when wrongfully- appropriated by the fiduciary. These principles of law do not apply to the factual situation in the instant case.

The claim of misappropriation involves chiefly the proceeds of the sale of the Hubbard Woods property over which she had given the donor full power, authority and control. The only investment the record discloses that she made in the Hubbard Woods property was the $30,000 received by her from the trustee of her mother’s estate and used for the construction of the home. She received in cash from the proceeds of the sale, as already indicated, $34,593.85, which was more than her investment, and which went into her checking account.

Upon a close analysis of this record, we find that in the instant case the wife had full knowledge of what went into the trust; of his withdrawal of the items from her agency account and placed in the trust; that she directly put into the trust some of her own securities; and that she fully agreed with the plan of disposition provided for in the trust. This is made clear by the undisputed testimony of the witnesses, Dunlap, Harwood, Irish and Williams, as well as her correspondence, to which we have alluded. As already pointed out, she had stated not only that she agreed with his plan and desire to provide in the trust for the University and his nieces, but that if she outlived him, she would not interfere with it. We are satisfied that were she alive, she would not make the claim here as-’" serted by plaintiff. It should also be remembered that in her letter to the donor, she stated she wanted the donor to have all of her property. In this connection the record does not disclose that after his death there was anyone close enough to her in kinship to whom she cared to will her estate. Apparently she had only plaintiff, her sister-in-law, to select as the object of her bounty.

The form of control which the donor retained over the trust does not make it invalid (Farkas v. Williams, 5 Ill.2d 417; Gurnett v. Mutual Life Ins. Co., 356 Ill. 612, 622) nor per se constitute a mere colorable and illusory trust, and a fraud upon the marital rights of the wife, as contended by plaintiff. Smith v. Northern Trust Co., 322 Ill. App. 168, heavily relied upon by plaintiff, and the cases therein cited are factually distinguishable from the instant case. There, the complaint by the surviving widow charged undue influence, misrepresentation and a scheme on the part of the deceased’s son and daughter by a former marriage to defraud the surviving widow of her marital rights, by the creation of the trust executed by the husband. Under the facts present in that case, the court held that the reservation of power and control by the settlor over the trust property constituted a fraud against the rights of the surviving widow, and that the form of trust was merely colorable and illusory.

In the instant case, such charges are not present, and the evidence negatives any intent on the part of the donor to defraud his wife of her marital rights. There is no merit in the claim made by plaintiff that the donor had any intention to defraud the wife of her marital rights, when it is recalled that he had given her the power of appointment and testamentary disposition of half of the trust. Whether the form of trust employed is merely colorable and illusory, and a fraud upon the marital rights of the spouse, must be determined from the particular facts in each case. In Holmes v. Mims, 1 Ill.2d 274, 279, it was said:

“Furthermore by the greater weight of authority a spouse in one’s lifetime may dispose of his or her property — both personal and real, and thus deprive a husband or wife of a possible inheritance, and such deed, transfer or gift is not vulnerable to attack unless the transaction is a sham and is ‘colorable’ or ‘illusory’ and is tantamount to fraud.”

Bearing in mind that the wife, during the life of the donor and after his death, accepted the benefits of the trust, in receiving and retaining the income therefrom, with the knowledge that she possessed concerning the trust, she would, if she were alive and attacked the trust, be estopped from maintaining the instant claim. The plaintiff, as executrix, stands in her shoes. In re Estate of King, 310 Ill. 90, 97. To the same effect is Bogert, Trusts and Trustees, § 173.

In the King case, it was held that the surviving spouse, by accepting the distribution of funds under a will, thereby recognized its validity, and that upon her death, her heir could not attack the validity of the will or its probate, holding further that if the widow were alive, she could not set aside the probate of that will without proving that it was obtained by fraud or mistake.

Similarly, in Remillard v. Remillard, 6 Ill.2d 567, 571, the widow having accepted the benefits of the will, it was held:

“It is a well settled rule in equity that if any person shall take any beneficial interest under a will he is thereby held to confirm and ratify every other part of the will, and cannot set up any right or claim of his own which would defeat or in any way prevent the effect and full operation of any part of the will.” (Italics ours.)

In applying the doctrine of equitable estoppel against plaintiff, she having no greater right than the wife, we have given consideration to the fact that there has been a material change in the status or position of the principals to the transaction. The death of Poppenhusen and the donor deprives these defendants of their testimony, which would have been available if the wife had, during her lifetime, seasonably presented the claim here made by the executrix.

There is also no merit in plaintiff’s contention with respect to trust No. 3639, which is the insurance trust. No property of the wife was part of this trust. The policies on the life of the donor were payable to the trustee, to be distributed in accordance with the provisions of the trust. This trust and trust No. 20673 were created before the donor and his wife became domiciled in California, and since we hold these trusts valid, the California statute, relied upon by plaintiff, would not apply.

The decree of the Circuit Court is fully justified by the record and is affirmed.

Affirmed.

KILEY and LEWE, JJ., concur.


author: PRESIDING. JUSTICE FEINBERG

text:
    Bernard Echales and Anne S. Budz, as Administratrix of the Estate of Joseph John Budz, Deceased, Appellants, v. Nathan Krasny, et al., Appellees.
    Gen. No. 46,729.
    First District, Third Division.
    January 16, 1957.
    Rehearing denied March 5, 1957.
    Released for publication March 5, 1957.
    John J. Maciejewski, of Chicago, for appellants; Charles D. Snewind, of Chicago, of counsel.

      Wyatt Jacobs, Jacobs, Miller, Hopkins & Rooney, and James S. Montana, for appellees; Joseph B. Lederleitner, of Chicago, of counsel.
   PRESIDING. JUSTICE FEINBERG

delivered the opinion of the court.

Plaintiff Echales brought this action on September 8, 1950, under Section 29 of the Workmen’s Compensation Act, to recover from defendants the amount of compensation paid by him to the widow and minor children of his employee, Joseph Budz, deceased, who died on March 10, 1950, as a result of injuries sustained by him in the course of his employment on February 4, 1950, and alleged to have been proximately caused by the negligence of defendants, third party tort feasors. He further alleged that both the plaintiff and the deceased were free from any negligence contributing to the injuries and death of the employee.

On January 3, 1955, when the cause was called for trial, which was after the decision in Geneva Construction Co. v. Martin Transfer Co., 4 Ill.2d 273, plaintiff Echales and Anne S. Budz, as administratrix of the estate of Joseph Budz, deceased, moved the court in writing for leave to the administratrix to intervene as an additional party plaintiff, and to amend the original complaint and for a continuance, and then proffered an amended complaint in two counts, the first count relating to plaintiff Echales to recover compensation paid, and the second count for the wrongful death of Joseph Budz. The motion was denied and the cause dismissed for want of prosecution, from which order plaintiffs appeal.

On March 20, 1952, the Supreme Court in Grasse v. Dealer’s Transport Co., 412 Ill. 179, held unconstitutional the first paragraph of Section 29 of the Workmen’s Compensation Act (Ill. Rev. Stat., 1947, Ch. 48, Par. 166). In 1953 the Workmen’s Compensation Act was amended to meet the effect of the decision in the Grasse case.

It appears from the record that during the month of November, 1954, the cause first appeared on the trial call before the assignment judge of the Superior Court, who was advised by the parties that there was pending then in the Supreme Court the Geneva case, supra, and that it involved the question of the right of an injured employee to intervene in the suit instituted by his employer against the third party tort feasor, and for that reason the case was continued several times. These continuances cannot be charged to plaintiffs.

On December 13, 1954, the assignment judge of the court assigned the cause to one of the judges for trial. The Geneva case had been decided on November 18, 1954. Upon motion of plaintiffs, the trial judge granted leave to plaintiffs to file an amended complaint within 10 days and ordered defendants to answer the same within 30 days. On December 14, 1954, the assignment judge, on his own motion as well as on the motion of defendants, entered an order vacating the order entered by the trial judge allowing the pleadings to be amended. The order recited that the cause was not assigned to the trial judge for any other purpose whatsoever except for the purpose of proceeding with the trial of said cause, and that the trial judge did not have the authority or jurisdiction to allow said motion to file an amended complaint. The order further recited that the trial judge should have re-referred the cause for disposition on any said motions of plaintiffs.

At the same time the assignment judge entered another order continuing for hearing to December 30, 1954, plaintiffs’ oral motion for leave to file an amended complaint and for the administratrix to intervene.

We do not see how the assignment of a case for trial to one of the judges of that court involves any jurisdictional question as to the right and authority of the trial judge to grant a motion to amend the pleadings. The trial judge has the ultimate responsibility for a correct decision, either on the evidence before him, or on the pleadings, or both. We know of no case in this State, and none has been cited to us, which has held that a trial judge, under such circumstances, lacks jurisdiction to allow amendment of pleadings.

On December 29,1954, the assignment judge assigned the cause to another judge for trial for January 3,1955. On December 30, 1954, plaintiffs moved in writing before the assignment judge to allow the administratrix to intervene, for leave to file an amended complaint, to set aside the order heretofore entered vacating the order of the first trial judge referred to, and to vacate the order of December 29,1954, assigning the cause for trial for January 3, 1955. Attached to the motion was a copy of the proffered amended complaint. This motion was denied.

On January 3, 1955, the parties appeared upon the trial call, at which time plaintiffs moved to continue the cause and submitted an affidavit in support of the motion for the continuance. Counter-affidavits were filed by the defendants. The motion for a continuance was denied, and the cause dismissed for want of prosecution. The plaintiffs’ affidavit recited the state of the record in the instant cause, and the further fact that plaintiffs’ counsel had been assigned for trial in another cause in the Circuit Court, wherein all parties were ready for trial, and that he had been directed by the Circuit Court to be ready for trial in said cause and was therefore unable to proceed for trial in the instant cause because he was being held for trial in the cause in the Circuit Court.

We think the Geneva case is parallel factually with the instant case and is decisive of the right of plaintiffs to amend their complaint and for the administratrix to intervene. In the Geneva case the suit, as here, was brought under Section 29 of the Workmen’s Compensation Act by the employer. After the decision in the Grasse case holding the first paragraph of Section 29 of the Workmen’s Compensation Act unconstitutional, the plaintiff in the Geneva case sought leave to have the injured employee intervene against the third party tort feasor, the injury having occurred more than four years before the employee sought to intervene. The motion to intervene was opposed on the ground that the Statute of Limitations under the Injuries Act had run, and the employee’s right was therefore barred.

The Supreme Court, in the Geneva case, allowed the injured employee to intervene, and held that the suit instituted by the employer entitled it to claim subrogation and to recover under the common law; that the Statute of Limitations under the Injuries Act did not apply, since the suit was started by the employer within two years of the injuries; and that the amended pleadings and the intervention of the employee would, under Section 46 of the Civil Practice Act [111. Rev. Stats. 1955, ch. 110, § 46], relate back to the filing of the original pleading. Therefore, in the instant case when the first trial judge allowed the pleading to be amended and the administratrix to intervene as party plaintiff, his order was fully justified by the holding in the Geneva case.

In the instant case, as in the Geneva case, before the Statute of Limitations had run, the suit was started by the employer within a year of the death of the injured employee. In the Geneva cáse the two-year Statute of Limitations for injuries was involved. In the instant case the one-year Statute of Limitations for wrongful death was involved. Except for that difference the analogy in the Geneva case to the instant case is inescapable. The Limitations statute for wrongful death has been construed the same as the Limitations statute for injuries, to be a condition of liability and operates as a limitation of the liability itself and not the remedy alone. Wilson v. Tromly, 404 Ill. 307, 310.

We feel justice requires that in the instant case the parties be permitted to amend their pleadings and the administratrix allowed to intervene, and it was error for the court to deny plaintiffs leave to file their tendered amended complaint.

The order appealed from is reversed and the cause remanded with directions to allow plaintiffs to file their amended complaint and to allow the administratrix to intervene, and for further proceedings in harmony with the views herein expressed.

Reversed and remanded with directions.

KILEY and LEWE, JJ., concur.


author: JUDGE KILEY

text:
    Chicago, Rock Island & Pacific Railroad Company, Plaintiff-Appellant, v. Pacific Wine Company, Defendant-Appellee.
    Gen. No. 46,935.
    First District, Third Division.
    January 16, 1957.
    Released for publication March 5, 1957.

      O. L. Houts, and E. D. Curlee, of Chicago, for plaintiff-appellant.
    Schultz & Biro, for defendant-appellee.
   JUDGE KILEY

delivered the opinion of the court.

Plaintiff Railroad sued defendant Wine Company, on three counts, to recover balances claimed to be due for freight rates upon three separate shipments of sparkling wine delivered by the Railroad. The Court, without a jury, found, and entered judgment, for defendant on all counts and the Railroad has appealed.

The facts are stipulated. The shipments were made November 29, 1948, December 10, 1948, and November 3,1950. In 1948 the lawful freight rates, under the published tariff, were:

“Wine (Except champagne)... .$1.51 per 100 pounds.
Champagne ..................$3.38 per 100 pounds.”

The freight rates for 1950 were $1.65 and $2.60 respectively. The Wine Company accepted the shipments and paid the lower rates. The Railroad demanded the higher rates and has sued for the difference between the lower rates and higher rates.

The parties concede that plaintiff has the duty to collect the lawful rate (Pillsbury Flour Mills Co. v. Great Northern Ry. Co., 25 F.2d 66) so that no consideration of estoppel is relevant. There is no dispute either about the rule that the designation, for sales purposes, of the commodity .shipped determines the applicable rate. (Chicago, B. & Q. R. Co. v. California Wine Co., 313 Ill. App. 498.) The question is whether the court correctly interpreted the manufacturer’s designation of the sparkling wine in this case.

The bills of lading described the shipments as “Sparkling Wine.” The manufacturer’s invoices described them as “Saratoga Champagne.” Every bottle in the three shipments was labelled:

“Sparkling Wine
California Champagne
Naturally Fermented — Bulk Process”

At the time of the shipments there were in effect Sections 3223-3224 of Regulation 124 promulgated under the Federal Alcohol Administration Act, governing the production, sale, labelling and advertising of all alcoholic liquor products sold in the United States. These sections contained definitions of “Class 2. Sparkling Grape Wine” and of “(b) Champagne.” Authorization was given in Regulation (c) for the designation of a “sparkling white wine” as “Sparkling Wine — -California Champagne — Bulk Process.”

The authorized designation (c) is the important provision in the instant case. The wine described in that provision is not champagne as defined in (b), since the secondary fermentation in the former may take place in “a closed container, tank or bottle,” while in champague proper (b), the secondary fermentation must take place “solely . . . within glass containers of not greater than one gallon capacity.” The wine subject of the suit was fermented secondarily in vats and is therefore not champagne. But the controlling factor is the manufacturer’s designation.

The authorization to designate sparkling light wine as California Champagne was qualified in that the words added to the general designation “Sparkling Light Wine” were required to be “equally conspicuous . . . and in lettering approximately one-half the size of the words ‘sparkling wine.’ ” The label in the record discloses the words “Sparkling Wine” in block letters about one-eighth inch in height. Directly beneath in script are the words “California Champagne,” the capital letters being about seven-sixteenths of an inch high. Beneath these are the words “Naturally Fermented — Bulk Process,” with the capital letters about one-fourth inch tall and the small letters a little less than one-eighth inch tall. Thus the label did not meet the qualifications in the provision authorizing the designation “California Champagne.”

There is undisputed testimony that all labels intended for bottles of alcoholic liquor must be approved by the Federal Alcohol Administration; that a preliminary approval of a sketch of the label is first obtained and thereafter the label is submitted; that if approved a stamp of approval is given and the label returned to the manufacturer; and that the manufacturer is subject to fine for having in possession an unapproved label. We will not presume that the manufacturer violated the law (Robinson, Admx. v. Workman, 9 Ill.2d 420, 427), but in the absence of a showing to the contrary we presume that the label used was given approval. The Federal approval necessarily was for California Champagne, bulk-processed, and not for true champagne. This fact distinguishes Cream of Wheat Co. v. A. T. & S. F. Ry. Co., 911. C. C. 45, where cereals labelled as such were shipped as wheat grits. The fact also distinguishes other cases where commodities were not truthfully designated. Finally, the Federal agency’s approval overrides the failure to meet the qualifications for lettering on the label and establishes the manufacturer’s designation which controls the applicable rate. The approval indicated that the agency considered the designation sufficient although the label did not strictly conform to the requirements of the Regulation.

We think it follows that the manufacturer’s designation was not for champagne and that the defendant was entitled to have the lower rate applied to the shipments. It is our opinion that the trial court’s decision was right and it is affirmed.

Affirmed.

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


author: JUDGE KILET

text:
    Hartford Fire Insurance Company, Appellee, v. Chicago Tunnel Terminal Company, Appellant.
    Gen. No. 46,842.
    First District, Third Division.
    January 16, 1957.
    Released for publication March 5, 1957.

      Schuyler, Eichert & Stough, of Chicago, for appellant; Jay Stough, and Joseph E. Julin, of Chicago, of counsel.
    William S. Jacob, of Chicago, for appellee.
   JUDGE KILET

delivered the opinion of the court.

This suit was brought by Hartford Fire Insurance Company, called insurer herein, to recover $2,552.75 from the Chicago Tunnel Terminal Company, the lessee and indemnitor of the Central Terminal Eailway Company, the insured, the sum paid for damages to the insured’s property. The cause was submitted to the court on stipulated facts and the plaintiff recovered judgment for $1,276.38. Defendant has appealed from the judgment. Insurer has cross appealed claiming error in the disallowance of the full amount sought.

In 1914 the defendant and the Eailway Company, referred to herein respectively as lessee and insured, entered into a lease of insured’s underground space in which lessee was to construct and maintain tunnels for the hauling of freight, and elevator shafts connecting the tunnels to the insured’s freight house. The agreement provided that the lessee should indemnify the insured and “save it harmless from, any and all loss or damage which it . . . may incur or suffer on account of injury to or destruction of its property, and from any and all claims for liability to any person or corporation whomsoever ... whenever such loss, damage, or injury shall be caused by, or grow out of, or in any way result from, the . . . use or operation of said . . . tunnels. . . .”

In 1945 the insured obtained insurance covering the freight house and its contents from loss by fire. In September, 1946, a fire and explosion occurred in the leased tunnels and the freight house and its contents were damaged. Insured, pursuant to the agreement with lessee, notified lessee of the damages, but lessee refused to pay. Thereafter, the insurer paid the loss and received articles of subrogation from insured under the insurance contract. This suit followed.

Neither party agrees with the trial court’s decision, based on the principles of contribution of co-insurers, giving plaintiff one-half of what it paid. The lessee contends that its agreement with the insured was solely for indemnification against any loss, and since the insured was compensated by the insurer, there is no longer any loss for which lessee is responsible, and therefore no right of action in insured to which insurer can be subrogated. Insurer contends that it is entitled to subrogation to the full amount of its payment.

All the cases agree that the insured cannot have double recovery, and that the insurer may be subrogated to recover from a third-party wrongdoer. (Pontiac Mutual County Fire & Lighting Ins. Co. v. Sheibley, 203 Ill. App. 527, affirmed 279 Ill. 118; Standard Acc. Ins. Co. v. Pellecchia, 15 N. J. 162, 104 A.2d 288; Union Insurance Soc. v. Consolidated Ice Co., 261 Mich. 35; American Surety Co. v. Bank of California, 133 F.2d 160.) The question is whether plaintiff should be subrogated to the insured’s claim against lessee under the terms of the lease.

It is not our purpose to uncover a principle underlying the various decisions upon similar questions arising from suretyship, bailments, and insurance relationships. "We do find, however, that the cases which favor the insurer rely upon two English decisions as the leading cases. (Darrell v. Tibbitts, L.R. 5 Q.B.D. (1880) 560; Castellain v. Preston, L.R. 11 Q.B.D. (1883) 380.) These cases are authority for the rule of subrogation that the insurer steps into the place of its insured “with regard to every right . . . and with regard to every contract which touches the subject-matter insured.” (5 Q.B.D. 560, 563.) The case of Union Insurance Soc. of Canton v. Consolidated Ice Co., 261 Mich. 35, stated the same rule. Thus it is unimportant that there is no claim of negligence on the part of the lessee.

The Tibbitts case involved a landlord-tenant relationship, and the Castellain case involved a contract for the sale of insured property. The material difference between those two cases and the instant case is that in the English cases the third party had an absolute liability, whereas in the instant case, the lessee’s contract was for indemnity.

A principle of decision in the Tibbitts and Castellain cases, and in the bailment case underlying them, is that the obligees on the primary contracts “had the primary liability” (5 Q.B.D. 566) as against the secondary liability of the insurer of the property. This principle appears to have been the reason for the decision in Chicago, St. Louis & New Orleans Railway Co. v. Pullman Southern Car Co., 139 U. S. 79, a leading case, in which the facts, more nearly than in the other eases, approach those in the instant case. In that case railroad cars owned by Pullman were leased to, and in the possession of, the defendant railroad. The Pullman Company’s insurer was held subrogated to Pullman’s claim against the railroad when the cars were destroyed by fire because “the liability of the railroad company is, in legal effect, first and principal, and that of the insurer secondary, not in order of time, but in order of ultimate liability.” (139 U. S. 88.) The railroad’s obligation there was to “repair all damages to said cars of every kind occasioned by accident or casualty.” There again the lessee had absolute responsibility and not the responsibility of an indemnitor.

The difficulty in the case before us is that both the lessee and the insurer are indemnitors, whereas in the English cases and the Pullman case the obligations of the third parties were absolute. The Pullman case was authority for a decision in favor of the insurer in a similar case where again the lessee agreed to pay for damage by fire originating on the lessee’s premises. (F. H. Vahlsing, Inc. v. Hartford Ins. Co., Tex. Civ. App., 108 S.W.2d 947.)

There is no “ultimate liability,” as in those cases, on the part of the instant lessee because there is no obligation under the lease except that of indemnity. We think, however, that there is a common element in the decisions favoring the insurers in bailment cases, upon one of which Darrell v. Tibbitts, L.R. 5 Q.B.D. 560, rests, in the landlord and tenant cases, and in the vendor-vendee case. (Castellain v. Preston, L.R. 11 Q.B.D. 380.) This is that “primary liability” was found to rest upon the person bound by the primary contract and in possession of the property insured. It is true that in those cases there was an absolute obligation, but we think, as Judge Vanderbilt thought in deciding Standard Acc. Ins. Co. v. Pellecchia, 15 N. J. 162, 104 A.2d 288, that imposing the primary obligation upon the third party is a better alternative than absolving the lessee from its indemnity obligation. Even though the primary contract, the lease, did not bind lessee absolutely, it is nevertheless the underlying and foundation agreement and implies in that sense an ultimate liability on lessee.

The obligation of the instant lessee was to indemnify against any loss and did not exclude losses otherwise covered, and the lessee should have anticipated that the freight house was, or would probably be, insured and that any fire starting in the shaft would likely cause damage to the freight house. Moreover, the insurance policy was for approximately $14,650,000 and covered the freight house and its contents against fire in general, whereas the lessee’s obligation was specific as to damage resulting from maintenance and use of the leased property.

We see no merit to the contention that upon payment of the loss by the insurance company there was no loss for which the lessee was responsible. The lessor and the insurance company are, with respect to lessee in these circumstances, “looked upon as one person” (Darrell v. Tibbitts, L.R. 5 Q.B.D. 560, 566), having a loss. (Pontiac Mutual County P. & L. Ins. Co. v. Sheibley, 203 Ill. App. 527, 530.)

We conclude that the lessor’s right under the lease was unaffected by the insurer’s obligation to insured and that the insurer was entitled to subrogation to insured’s right against the lessee to the extent of the insurer’s payment to insured. The judgment is accordingly reversed and judgment is entered here for insurer for the sum of $2,552.75.

Reversed and judgment entered here.

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


author: JUDGE CARROLL

text:
    Mervin Tucker, a minor, by Ms father and next friend, Lee Tucker, Plaintiff-Appellee, v. New York, Chicago and St. Louis Railroad Company, Defendant-Appellant.
    Gen. No. 10,083.
    Third District.
    January 28, 1957.
    Rehearing denied March 4, 1957.
    Released for publication March 4, 1957.

      Baker and Baker, of Shelbyville, Pope and Driemeyer, of East St. Louis, for appellant; John J. Baker, of Shelbyville, and Frank M. Rain, of East St. Louis, of counsel.
    William L. Turner, of Shelbyville, and Earl S. Hodges, of Springfield, for appellee.
   JUDGE CARROLL

delivered the opinion of the court.

This is an action to recover damages for personal injuries sustained by plaintiff when the truck which he was driving was struck by defendant’s freight train at a grade crossing. A verdict for $12,250 for plaintiff was returned by the jury. The court denied defendant’s motion for judgment notwithstanding the verdict and in the alternative for a new trial and entered judgment on the verdict.

On this appeal defendant seeks reversal on the theory that plaintiff as a matter of law was guilty of contributory negligence and that the trial court should have directed a verdict for defendant, or that in the alternative its motion for a new trial should have been allowed. No question is raised on the pleadings or as to the amount of the verdict.

The negligence charges against the defendant as made in the complaint are operation of the train at a speed greater than was reasonable and proper; failure to keep a proper lookout for truck at the crossing; failure to give statutory signals; operation of the train without adequate brakes; failure to keep its right-of-way free of obstruction to view and permitting thereon large piles of dirt, growth, brush, poles and a building, and failure to maintain the crossing as required by the rules of the Illinois Commerce Commission.

The crossing at which the accident occurred is in the open country about three miles east of Cowden in Shelby County, Illinois and there are no trees or buildings in its immediate vicinity. The defendant’s single track runs in a northeasterly and southwesterly direction and the highway as it approaches the crossing runs generally in an easterly and westerly direction. About eight o’clock A.M. on the morning of September 4, 1953, plaintiff was driving a milk truck and came up to the crossing from the east. Defendant’s train consisted of 48 freight cars, caboose and steam locomotive which was approaching the crossing from the northeast.

Plaintiff’s version of the occurrence as it appears from his testimony is in substance that before the collision he had picked up a can of cream at Earl Endsley’s farm; that although the weather was cloudy with a little mist of rain and fog, the visibility was about two miles; that he was familiar with the crossing, having driven over it daily on his milk route for about nine months; that after leaving the Endsley farm yard he drove west and turned north on the highway; that after a short distance the highway turns west before crossing the railroad track; that as he turned west he saw the track and right-of-way in front of him; that he looked off to his right and saw telephone pole lines and timber; that the timber was a quarter of a mile northeast of the crossing; that he was driving 20 to 25 miles per hour; that as he approached the crossing he slowed down and stopped the truck about 9 or 10 feet east of the tracks; that he then “scooted” across the front seat, rolled down the right window of the cab of the truck and looked to the right; that he saw telephone lines, the railroad tracks, the top of a little shack and sprouts and weeds; that he did not see any train nor did he hear any train warning; that he slid back across the seat and put the truck in low gear and started to cross the track at about 4 or 5 miles per hour; that after the front end of the truck had crossed the track the rear end was struck by the train, resulting in the injuries for which he seeks recovery.

On cross examination plaintiff testified that there was a telephone booth shack about 275 feet from the crossing; that when he was looking to the right from the truck which was 9 or 10 feet from the rail nearest to him he could see about 200 feet beyond the telephone shack; that he didn’t see anything other than the rails, shack, telephone wires and the sprouts and weeds.

The only eye witness to testify to the actual occurrence was Earl Endsley, a farmer living approximately 40 rods straight east from the crossing. He testified that he watched plaintiff as he left his place after picking up some cream; that the witness could see the railroad track from his home; that he saw a train coming from the northeast; that he heard the train; that it was a freight train and was making the noise usually made by a freight train; that he observed it continuously until it struck plaintiff’s truck; that it was 45 to 50 rods northeast of the crossing when he first observed it; that in his opinion the train was running at 60 to 65 miles per hour; that he listened for a bell or whistle but did not hear any; and did not see any light on the engine; that there was nothing to obstruct the view of a person driving west toward the railroad track; that he estimated the speed of plaintiff’s truck at 15 to 20 miles per hour, which speed continued until the time of its collision with the train; that he watched the truck until it was struck and that just before the collision he saw the brake light of the truck go on.

A number of photographs of the crossing which were taken a few days after the accident were introduced in evidence. Five of these pictures were taken from the center of the road five feet above the ground with the camera facing northeast at varying distances of 10, 17, 100, 150 and 200 feet southeast of the south rail of the track. The pictures taken from 10 and 17 feet southeast of the south rail show an unobstructed view of the rails of defendant’s track to the northeast as far as the timber, which plaintiff located as being one quarter of a mile northeast of the crossing. The pictures taken 100, 150 and 200 feet southeast of the track likewise show no obstructions to the view northeast as far as the timber. Other than the track, the only object shown on these pictures are the telephone poles and shack to which plaintiff referred, some fence posts along the right-of-way and a thin growth of vegetation which does not appear to be more than a few inches above the ground.

A plat of the area of the crossing and a profile map showing the elevation thereof were introduced in evidence by plaintiff. This evidence would not appear to disclose anything concerning the physical situation at the crossing which varies from that shown by the photographs. However, from the plat and testimony of the engineer who prepared the same, it appears that the point where plaintiff turned west on the highway is about 400 feet east of the crossing.

The head brakeman, fireman and engineer on the train testified that the locomotive bell was ringing and the regular crossing whistle sounded as the train approached the crossing. "Witnesses for defendant also testified that the headlight on the engine was burning and its oscillating headlight was flashing and that the speed of the train was about 50 miles per hour.

On this appeal the principal question raised is whether plaintiff was in the exercise of due care at the time of the accident. The answer to that question determines whether the trial court erred in refusing to direct a verdict for the defendant.

In passing upon a motion to direct a verdict for the defendant in actions such as this, the rule by which the trial court is guided is well established, and has been announced by our courts in numerous cases. Such motions should be allowed if when all the evidence is considered in its aspects most favorable to the plaintiff together with all reasonable inferences to be drawn therefrom, there is a total failure of proof on one or more essential elements of the case. Carrell v. New York Central Railroad Co., 384 Ill. 599; Greenwald v. Baltimore and Ohio Railroad Co., 332 Ill. 627; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270.

It follows therefore that if there is no evidence in the record fairly tending to prove the exercise of due care by plaintiff or raising a reasonable inference that such care was exercised, then the issue of due care should not have been submitted to the jury.

As the plaintiff approached defendant’s track, it was his duty to exercise reasonable care for his own safety. According to the well established rule in this state, such duty required him to both look and listen before crossing the track to see if there was danger. This is a reasonable requirement because it is generally recognized that railroad crossings are dangerous places and a person going upon the same must do so with a degree of care commensurate with the danger involved. Moudy v. New York, Chicago and St. Louis Ry. Co., 385 Ill. 446; Provenzano v. Illinois Central Railroad Co., 357 Ill. 192; Greenwald v. Baltimore and Ohio Railroad Co., supra. The above rule is tersely stated in the Moudy case, supra, as follows:

“The rule has long been settled in this State, and is generally recognized, that railroad crossings are dangerous places, and that one crossing the same must approach the track with the same amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a crossing it is generally condemned as negligence. The law requires the traveler, under such circumstances, to make diligent use of his senses of sight and hearing, to retain proper control of his vehicle, and to exercise care commensurate with the danger to be anticipated.” (Citing cases.)

Whether the evidence shows plaintiff’s compliance with such duty depends not only upon what he did just prior to and at the time of the accident but also the circumstances under which he acted. Plaintiff was approaching a crossing which he had driven over daily for about nine months. His sight and hearing does not appear to have been impaired. He testified that although he injured his right eye when he was a child, the sight in his left eye was perfect. Although there was a little mist and fog in the area, he stated the visibility was two miles. As he turned the corner to go west towards the crossing, he saw the defendant’s track in front of him. At that point he looked off to his right and saw telephone lines and timber which was a quarter of a mile northeast of the crossing. He failed to state, however, whether he then looked for a train approaching from the right. His view of the train was unobstructed from the time he turned the corner to go west until he reached the crossing. While he was traversing the distance from the turn to the crossing, Endsley, who was considerably further from the track than was plaintiff, saw the approaching train. It thus appears that although his vision was unobstructed, plaintiff’s first effort at discovering whether a train was approaching or not was made when he stopped his truck 9 or 10 feet from the nearest rail. With the truck stopped he listened and looked down the track but did not hear or see the train which a few seconds later struck the truck. No mention is made in his testimony of anything which interfered with his view of the train. Without qualifying the statement in any respect he said that as he looked he could see the rails and other objects on the east side of the track. However, Ms failure to observe defendant’s train on tbe track is unexplained.

Consideration of tbe foregoing facts and circumstances with due regard for the rule requiring tbat upon a motion to direct a verdict for defendant tbe evidence must be taken most strongly in favor of tbe plaintiff appears to lead only to tbe conclusion tbat plaintiff failed to prove tbat be was in tbe exercise of due care just prior to and at tbe time of tbe accident.

Plaintiff argues tbat there is evidence of obstructions to bis view of tbe train, pointing out tbat after be turned west, tbe train was approaching from bis rear and tbe opposite side of tbe driver’s seat of tbe truck; tbat tbe train came into view after be turned west; tbat there were weeds and sprouts and telephone poles along tbe right-of-way and tbat it was foggy. This argument is not sustained by tbe record. There is no basis for tbe assumption tbat by reason of these circumstances, plaintiff’s view was obstructed in tbe absence of proof to tbat effect. After plaintiff turned west according to bis own testimony and tbat of Endsley, tbe former bad an unobstructed view of tbe approacMng train for a distance of at least a quarter of a mile. Furthermore, tbe evidence furnishes no reasonable explanation for plaintiff’s failure to look for a train as be drove west and before be reached a point 10 feet from tbe crossing. We think reasonable prudence would require a person knowingly approaching a railroad crossing to commence tbe diligent employment of bis senses of sight and bearing to learn whether a train is approaching before reacMng a point 10 feet from tbe track. If, in this case tbe evidence disclosed tbat plaintiff was prevented from seeing tbe train by reason of obstruction to bis view to tbe right, then bis failure to look for a train would be excused. However, tbe evidence not only fails to show any obstruction to plaintiff’s view but it would also appear to clearly indicate that the existence of any such obstruction was not given by him as the reason for his failure to see the train in time to have avoided the accident. He merely testified that he did not see the train.

Cited in support of the contention that the question of plaintiff’s due care was properly submitted to the jury are Bales v. Pennsylvania R. Co., 347 Ill. App. 466; Monroe v. Illinois Terminal R. Co., 346 Ill. App. 307; Karlock v. New York Cent. R. Co., 333 Ill. App. 655. An examination of these cases discloses the determining factor in each instance to have been the question as to whether or not the proof showed plaintiff’s view of the train was unobstructed.

In the Bales case, supra, the court dealt with a situation where there was evidence that plaintiff’s view of the track was obstructed until he was 15 or 20 feet from it. The plaintiff applied the brakes on his car as soon as possible after he saw the train and came to a stop about 1 foot from the track, but his car was struck by the overhang from defendant’s train. It was contended by the defendant that plaintiff was guilty of contributory negligence as a matter of law and in support thereof cited numerous cases. In rejecting defendant’s contention the court had this to say:

“In each ease there was a variation in the facts but the point upon which the decision was finally determined was whether or not plaintiff’s view of the train prior to the collision was unobstructed. If it was unobstructed, defendant was entitled to a directed verdict. If it was not, it was a question of fact for the jury to decide. It is a well known rule of law that a traveler must make use of his sense of sight and hearing and exercise care commensurate with the danger to be anticipated in approaching a crossing, Carrell v. New York Cent. R. Co., supra, but it is not a rule of law that the omission of a duty to look and listen will bar recovery where there are facts excusing the performance of the duty.”

Likewise in the Karlock case it appears that the driver of the automobile could not see the approaching train until he was less than 15 feet from the tracks and even at that distance there was a car obstructing his view. The court held that since there was proof of facts excusing failure of the driver to look and listen the issue of due care was properly submitted to the jury.

The feature distinguishing the above cases from that presented on this appeal is the absence in the latter of proof that plaintiff’s view of the approaching train was obstructed. If there was an excuse for his failure to see or hear the train it is not demonstrated by the evidence in the record.

The facts and circumstances shown by the instant record makes it obvious that the cases cited by plaintiff do not support his contention. The burden of proving due care rested upon plaintiff and if he failed with respect to that element of his case then the trial court should have directed a verdict for the defendant. We think upon consideration of the evidence all reasonable minds would agree that it does not fairly tend to prove that plaintiff was in the exercise of due care at the time of the accident.

For the above reasons we are of the opinion that the trial court should have allowed defendant’s motion for a directed verdict and the judgment is therefore reversed.

Reversed.


author: PRESIDING JUSTICE ROBSON.

text:
    Christine Lano, Appellee, v. Yellow Cab Company, Appellant, Paul Williams, Appellee.
    Gen. No. 46,945.
    First District, Second Division.
    December 27, 1956.
    Rehearing denied January 15, 1957.
    Released for publication March 5, 1957.
    Jesmer and Harris, and Michael A. Gerrard, for defendant-appellant; Joe Reiff, for appellee.
   Opinion by

PRESIDING JUSTICE ROBSON.

Not to be published in full.


author: JUDGE McCORMICK.

text:
    Joseph Minga and Raymond Desmore, Appellants, v. Jack Cole Co., Inc., and Szetty H. McGuire, Appellees.
    Gen. No. 46,910.
    First District, Second Division.
    December 27, 1956.
    Released for publication March 5, 1957.
    John J. Kennelly, and Fleming & Olson, for appellants, Edward J. Fleming, of counsel; Ryan, Condon & Livingston, for appellees, Earle C. Hurley, and John J. Sharon, of counsel.
   Opinion by

JUDGE McCORMICK.

Not to be published in full.


author: JUDGE SCHWARTZ.

text:
    Sears, Roebuck & Company, Appellee, v. Edward H. Sigman and Irene E. Sigman, Appellants.
    Gen. No. 46,948.
    First District, Second Division.
    December 27, 1956.
    Released for publication March 5, 1957.

      Korshak and Rothman, for appellants, Thomas J. Finnegan, of counsel; Martin Faier, and Lowell B. Komie, for appellee.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.


text:
    William Spiker, Plaintiff-Appellee, v. Leslie Christenson, d/b/a Ham & Merv Taxi Co., Defendant-Appellant.
    Term No. 56-O-3.
    Fourth District.
    January 28, 1957.
    Rehearing denied March 1, 1957.
    Released for publication March 1, 1957.
    Frank G. Schubert, and Burroughs, Simpson & Burroughs, for defendant-appellant; Malcolm D. Durr, Samuel L. Xanders, for plaintiffappellee.
   Opinion by

JUDGE CULBERTSON.

Not to be published in full.


author: JUDGE BARDENS

text:
    Shelby Haley, Plaintiff-Appellee, v. Vina Wiggs, Defendant-Appellant. Wallace Mick, Counterclaimant, v. Shelby Haley, Counterdefendant-Appellee.
    Term No. 56-O-10.
    Fourth District.
    February 5, 1957.
    Released for publication February 26, 1957.
    Hill & Hill, for appellant, Robert S. Hill, of counsel; Frank E. Troubaugh, and Stephen E. Brondos, for appellee.
   JUDGE BARDENS

delivered the opinion of the court. Not to be published in full.