author: TRAPP, P. J.

text:
    Eugene J. Strasma, Individually and as Administrator of the Estate of Thomas Eugene Strasma, Deceased, Plaintiffs-Appellees, v. Wilbert E. Lemke, Defendant-Appellant.
    Gen. No. 11,006.
    Fourth District.
    August 12,1969.

      Stifler & Snyder, of Danville (Thomas C. Stifler, of counsel), for appellant.
    Mitchem, Hendrix & Aldeen, of Urbana (Charles W. Hendrix, of counsel), for appellees.
   TRAPP, P. J.

Defendant appeals judgments entered upon jury verdicts in favor of plaintiff, as administrator, in the sum of $10,000, and in favor of plaintiff, individually, for funeral expenses in the sum of $684.26. The trial court denied defendant’s post-trial motions.

The complaint alleged negligence in terms of lookout, speed and control of defendant’s automobile. There are no issues raised upon the pleadings or instructions.

Issues urged upon appeal are (1) that as a matter of law defendant is not shown to be liable, (2) that under the evidence decedent and (3) decedent’s parents were guilty of contributory negligence, and (4) that the trial court erred in admitting hearsay evidence which was improper in the determination of pecuniary damages suffered. Upon the latter issue, it is not contended that the verdict is excessive, and it is therefore unnecessary to review the question argued.

Plaintiff’s son, aged seven years, ten months, died as the result of being struck by defendant’s automobile on July 1, 1965. Defendant was driving south on a two-lane state highway (Route 1) in his proper westerly lane of traffic at between 55 and 60 miles an hour. The area was rural and the speed limit was 65. The automobile was almost new and in good condition.

Decedent resided with his parents, whose home was situated about 150 yards east of the highway. The mailbox for the home was approximately opposite plaintiff’s driveway, some 8 feet west of the highway. At about 10:30 a. m. the lad went to get the mail while his mother was seated on a front porch facing toward the mailbox. Decedent rode his bicycle to a place near the end of the driveway, left his bicycle and walked to the highway. The evidence is that he waited for several cars to pass and proceeded across the road to the mailbox. He had performed this chore for about a month.

Defendant testified concerning certain railroad tracks extending northeasterly and southwesterly crossing the highway at an angle. Such crossing is 143 feet north of the mailbox. There are electric flashing signals at the crossing. He testified that it was necessary to look over his shoulder at an acute angle to the northeast to watch for trains which might approach from his left. He made such observation, but testified that he did not see the boy at any time until his car was nearly at the mailbox. He then saw decedent in front of his car, swerved to the left and applied his brakes. There is evidence that the boy was struck about 3 feet east of the west edge of the slab, immediately to the east of the mailbox.

Defendant’s car was stopped in the left-hand, or easterly traffic lane, facing south. The boy’s body was in front of the car in the west traffic lane. A State Police officer testified that the car stopped 48 feet south of the mailbox and that tire skid marks on the pavement extended 11 feet back from the car.

A witness, Miles, called by the plaintiff, was approaching the scene from the south at a point which was shown to the jury on a photograph, but no distance is stated in this record. Miles saw defendant’s car approaching the mailbox and observed the boy close to the mailbox, turn and look to the south and then start across the highway. The witness could not say whether the boy looked to the north.

A witness, Screech, was driving behind the defendant. He testified that he was some 220 yards behind the defendant, and that defendant was traveling in his proper traffic lane at a speed of about 65 miles an hour. The witness testified that he did not see the boy at the mailbox until just before the impact when he observed a “shadowy figure” move in front of defendant’s car and observed mail fly up into the air. His testimony suggests that a group of trees to the southwest of the mailbox created a condition of camouflage which made it difficult to see the boy. This condition was not described in detail other than as a more or less incidental remark.

Defendant urges that the rule is that a motorist driving at a reasonable rate of speed in his proper traffic lane is not, and should not be, liable for injuries to a child that darts suddenly in front of the car — that this is particularly true where the travel is upon a high-speed highway in open country at a place where children are not to be expected crossing. The proposition is stated substantially in language employed in Morrison v. Flowers, 308 Ill 189, 139 NE 10 (1923), and again in Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379 (1965). The rule stated is that there is no inference of negligence from the fact that a child crossing the street is struck by a vehicle, but that there must be evidence of a driver’s negligence from testimony of eyewitnesses, or fairly deducible from facts in evidence. Roberts v. City of Rockford, 296 Ill App 469, 16 NE2d 568 (1938); Piechalak v. Liberty Trucking Co., supra (1965). The authorities cited by the defendant, however, do not undertake to determine liability, or nonliability, as a matter of law, but rather hold that liability is a matter to be determined by the jury from the facts in evidence.

In such cases the verdict of the jury will be sustained unless such is contrary to the manifest weight of the evidence. Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529; Payne v. Kingsley, 59 Ill App2d 245, 207 NE 2d 177; Deeke v. Steffke Freight Lines, 50 Ill App2d 1, 199 NE2d 442.

Upon review of the cases cited by the defendant for the proposition, the courts following such rule have affirmed verdicts for the defendant in Roberts v. City of Rockford, 296 Ill App 469, 16 NE2d 568; Brannen v. Fisher, 57 Ill App2d 64, 206 NE2d 458; Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379, while they have affirmed a verdict for the plaintiff in Morrison v. Flowers, 308 Ill 189,139 NE 10.

Here the evidence, including the testimony of the defendant, is that his view was without obstruction as he approached the place of injury. While it is argued that the position of the trees southwest of the mailbox created a condition which explains failure of the defendant to see the boy, there is, in fact, no testimony by the defendant upon the point. Examination of photographs in evidence does not require a conclusion that it would be difficult to see decedent at the mailbox because of the alleged condition. Granting that defendant was endeavoring to look along the railroad tracks to the northeast, such action would be completed before crossing the tracks, which were some 143 feet north of the place where the boy was struck. He did stop his car in some 48 feet apparently without a previous slackening of speed. It is not palpable error if the jury concludes that the defendant failed to exercise reasonable care in keeping a lookout, and sounding a horn. See cases 24 ALR3d 183, pp 223-228.

Defendant argues that there is no proof that decedent was in the exercise of ordinary care for his own safety, and, particularly, that there is no evidence that he looked to the north before crossing the highway. There is a presumption that a child between the ages of 7 and 14 is incapable of negligence and is not held to the same accountability as an adult. Kronenberger v. Husky, 38 E12d 376, 231 NE2d 385; Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379. The failure of a child of such years to look before crossing a street will not bar recovery as a matter of law. Morrison v. Flowers, 308 Ill 189, 139 NE 10. Such presumption may be rebutted by evidence of the child’s negligent conduct if the jury is instructed to consider the mental capacity and experience of the child. See IPI 10.05. Whether a child is guilty of negligence which bars recovery is a question of fact for the jury. Kronenberger v. Husky; American Nat. Bank & Trust Co. v. Pennsylvania R. Co., 52 Ill App2d 408, 202 NE2d 79; Payne v. Kingsley, 59 Ill App2d 245, 207 NE2d 177.

The jury answered special interrogatories with findings that the parents were not guilty of contributory negligence. It is a jury question whether a parent, taking into account the age and capacity of the minor and the nature of the danger, is guilty of contributory negligence which bars recovery, and the jury’s verdict must be sustained unless against the manifest weight of the evidence. Payne v. Kingsley, supra; Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529; Crutchfield v. Meyer, 414 Ill 210, Ill NE2d 142.

Upon appeal, the reviewing court must consider all of the evidence together with the verdict of the jury and the fact that the trial court has denied a motion for a new trial. Tihay v. Aurora City Lines, 79 Ill App2d 107, 223 NE2d 171.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    Leonard J. Deardorff, Administrator of the Estate of John A. Enders, Deceased, Plaintiff-Appellant, v. Decatur and Macon County Hospital Association, a Corporation, Engineering Service Corporation, an Illinois Corporation, T. A. Brinkoetter and Sons, Inc., a Delaware Corporation, General Controls Company, a Corporation of St. Louis, Missouri, and Illinois Power Company, an Illinois Corporation, Defendants-Appellees.
    Gen. No. 11,046.
    Fourth District.
    August 12,1969.

      Earl S. Hodges, of Springfield (Samuel C. Patton, of counsel), for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, and Greanias & Owen, of Decatur (Jerald E. Jackson and Marshall A. Susler, of counsel), Hershey & Bliss, of Taylorville (Charles Bliss, of counsel), for appellees.
   SMITH, J.

Plaintiff appeals from an order denying his motion to vacate a judgment dismissing a suit for want of prosecution. The motion to vacate the judgment of dismissal was filed within 30 days of the dismissal order. The parties are in substantial agreement that involved in this appeal is the determination of whether or not the trial court abused his discretion and whether or not the plaintiff showed good cause for vacating the order of dismissal. He didn’t, and the judgment of the trial court is affirmed.

On September 23, 1960, the plaintiff filed his suit against multiple defendants in a wrongful death action arising out of an explosion of a boiler in which plaintiff’s intestate was killed and which occurred on September 25, 1958. Some aspects of this occurrence, not affecting the present plaintiff, were before this court on a previous occasion. Decatur and Macon County Hospital Ass’n v. Erie City Iron Works, 75 Ill App2d 144, 220 NE2d 590. Our judgment became final on denial of rehearing on October 24,1966. In the meantime, the present suit was pending in the trial court. On March 19, 1964, plaintiff’s attorney addressed a letter to the presiding trial judge in which he stated: “It so happens that the pleading will need to be rearranged and I ask for leave to file Amended Complaint. This is being prepared. . . . Please pass this motion setting. . . .” The trial court granted this request, but no amended complaint was ever offered or tendered and the plaintiff did nothing further in the suit until May 23, 1966, when the trial court dismissed the cause of action for want of prosecution. On June 11, 1966, plaintiff filed a motion to vacate the order of dismissal. This motion to vacate the order of dismissal was set by the trial court on his own motion in March of 1968, notice was given, the matter was argued on behalf of the plaintiff and the motion to vacate denied. Plaintiff then filed this appeal.

The parties are in substantial agreement that the trial court exercises its discretion in entering such an order under a power conferred by Ill Rev Stats 1967, c 110, § 50(5), wherein it is provided:

“The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.”

In Widucus v. Southwestern Elec. Cooperative, Inc., 26 Ill App2d 102, 167 NE2d 799, the court stated certain standards which the trial court should apply in ruling on a motion to vacate a default. At page 109 of the Illinois citation and page 803 of the Northeastern citation, the court after stating that a motion should be so resolved as to do substantial justice between the parties with the idea in mind of carrying out the determination of cases upon their merits stated:

“It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.”

In just a few short weeks will be the eleventh anniversary of the accident causing the injury in this case. Nine years will have elapsed since it made its first appearance in the trial court. In March of 1964, the case was not yet at issue and leave to file an amended complaint was granted. Two years went by and the case came up on the trial court call in May, 1966, in regular course and was dismissed for want of prosecution, and plaintiff notified. On June 11, 1966, the plaintiff filed his motion to vacate that order. Two years later, the court on its own motion set his motion to vacate for hearing and on argument denied it. We are not persuaded from the affidavit that the delay in this case was in any sense occasioned by either the defendants or by the court itself. We are not persuaded that the previous appeal by other parties occasioned or justified the delay. We would point out that the opinion of this court in the preceding case became final on October 24, 1966. Plaintiff concedes in his brief that that case was finally disposed of in April, 1967, after leave to appeal from this court’s decision to the Supreme Court of Illinois was denied. Time moved on. No amended complaint was filed; no action was taken by the plaintiff. More than a year thereafter, plaintiff’s own motion to vacate the order of March, 1966, was still pending. Plaintiff asserts that he has a meritorious cause of action. We don’t know nor can we pass upon a determination of that issue. Whether the plaintiff has a meritorious cause of action has never been passed on by the trial court. It has never been passed on by the trial court for the very cogent reason that the plaintiff indicated that he desired to file a new and amended complaint. This request was more than four years old before the plaintiff was finally dismissed. The action of the trial court in dismissing the suit is characterized in plaintiff’s brief as having been summarily done. One dictionary, at least, describes summary action as “direct: unceremoniously fast,” The American College Dictionary, Harper & Bros. Publishers, 1948. On the record now before us, we have some difficulty in so characterizing it.

We are fully aware that the courts have displayed a great deal of liberality in refusing to permit procedural exactitudes to undermine or destroy basic concepts of fundamental fairness and justice. It was observed in Davies v. Infragnia, 54 Ill App2d 299, 305, 203 NE2d 725, 728, that “Every plaintiff probably feels that an involuntary dismissal does disservice to the goal of substantial justice. But we must consider ‘justice’ in a broader context.” In that case they quote from Duncan v. Magette, 25 Tex 245, 253: “Whoever undertakes to determine a case solely by his own notions of its abstract justice, breaks down the barriers by which rules of justice are erected into a system, and thereby annihilates law.” It would appear from this record that it is the procedural practice in the Macon County Circuit Court to regularly call for consideration cases which are two years old and have had no activity within that period. The original motion for dismissal was precipitated by the implementation of this rule and the plaintiff’s case dismissed for want of prosecution. The plaintiff then within ample time filed his motion to vacate and it is within the power of the court to grant such a motion in his sound discretion. Another two years went by without any display of interest on the part of the plaintiff in his lawsuit. Once again the trial court set plaintiff’s motion to vacate for hearing and it was argued and denied. It is unquestionably true that the plaintiff has not been heard on the merits. It is unquestionably true that the plaintiff has displayed little interest in the prosecution of his lawsuit. It is urged that since there was no answer to the plaintiff’s affidavit, all of the facts stated must be accepted as true. This we concede, but after having stated them, they show no reason for the plaintiff’s inactivity. The same argument was made in Esczuk v. Chicago Transit Authority, 84 Ill App2d 247, 228 NE2d 553, and the Appellate Court there found that the plaintiff had not been notified of the pretrial conference or of the dismissal for want of prosecution and that the plaintiff immediately checked the court file when the case did not appear on the trial calendar in its normal chronological order and that the plaintiff had a good cause of action. The Appellate Court reversed the trial court for dismissing plaintiff’s case for want of prosecution for failure to appear for pretrial conference. The Supreme Court reversed the Appellate Court and affirmed the trial court, Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 469, 236 NE2d 719, 721, and stated: “. . . it is apparent that the dismissal resulted from the inadvertent failure of plaintiff to follow her case.” The case just cited arose under § 72 of the Civil Practice Act, and not under the 30-day statute previously cited and that procedure is governed by equitable principles. In our judgment, in weighing the discretion exercised by the trial court in this case, we deal with equitable principles. In Esczuk, if there was no error in dismissing the case for want of prosecution where substantially greater diligence was displayed than is shown in the record before us, we cannot say that the trial court abused his discretion in dismissing this cause for want of prosecution. Here a plaintiff either inadvertently overlooked or was too preoccupied with other matters to give it any attention. He was galvanized into action only when the trial court moved. The desirability of resolving lawsuits by a trial on the merits is not aided where either a plaintiff or a defendant, as the case may be, does not show reasonable diligence in bringing about that result. The right to a trial on the merits or to present a defense means the utilization by a party of that right within a reasonable time. The goal of a trial on the merits is not achieved by soporific inactivity. We cannot say in this record that the trial court abused his discretion in dismissing this suit and we, therefore, must affirm the judgment. It is so ordered.

Affirmed.

CRAVEN, Acting P. J. and MILLS, J., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    William F. Sherman, a Minor, by Robert Lee Sherman, His Father and Next Friend, and Robert Lee Sherman, Plaintiffs-Appellees, v. City of Springfield, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 11,057.
    Fourth District.
    August 12,1969.
    Rehearing denied September 15,1969.

      Giffin, Winning, Lindner, Newkirk & Cohen, and I. J. Feuer, of Springfield (Alfred F. Newkirk and Robert S. Cohen, of counsel), for appellant.
    Londrigan & Londrigan, and Robert Weiner, of Springfield (Joseph A. Londrigan, of counsel), for appellees.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal is from a judgment entered by the Circuit Court of Sangamon County wherein the minor plaintiff, William F. Sherman, referred to herein as plaintiff, was awarded damages in the amount of $300,000 and plaintiff-father, Robert Lee Sherman, was awarded $19,000 against the defendant.

The cause of action arises from an injury suffered by the plaintiff, 17 years of age, while utilizing the swimming facilities owned and operated by the defendant, City of Springfield. The plaintiff claims that while running and diving in the swimming area, his head came in contact with “something hard” which caused direct and immediate paralysis to his arms, legs and trunk. The father claimed that he was damaged to the extent of all medical and hospital payments made on behalf of the minor.

This is the second trial of the case. The first trial resulted in a verdict for the defendant but was reversed and remanded for a new trial by this Court and can be found reported as Sherman v. City of Springfield, 77 Ill App2d 195, 222 NE2d 62 (1966). Leave to appeal to the Supreme Court was denied in 35 Ill2d 632 (1967).

The defendant has operated a recreational swimming area along part of the shoreline of Lake Springfield since the 1930’s. In addition to its customary facilities of locker rooms, beach houses, a first-aid room and a snack bar, it also provided a breakwater and an underground chlorination pipe. The pipe and its installation was a unique feature of this swimming area, no similar operation being found at any other like facility. The pipe was originally installed at the time that the swimming area was constructed. It was buried in the sand and gravel of the lake bottom approximately 50 feet from the water’s edge and parallel to the shoreline. The pipe was reduced in size, from 8 inches at its origin to 3 inches at its end, with the different sized pipes being connected by reducer fittings. The purpose of the pipe was to introduce into the swimming water a mixture of water and chlorine in order to purify the swimming area on a. continuous basis. Half-inch holes were drilled in the pipe at 18-inch intervals to effect this transfer. The fluid in the pipe was maintained under 24-hour pressure and had a daily capacity of 1,400,000 gallons of chlorinated water.

During January and February of 1964 the defendant, through its employees, determined to remove the old chlorination pipe and to install a new one. This removal and replacement was conducted during these months and the project was completed for the opening of the swimming season on June 1, 1964. The employees of the defendant indicated that the replacement of the chlorination pipe was a routine operation done without particular plans or specific engineering. At the time the installation was completed the defendant’s employees alleged that there were between eight and twelve inches of sand and gravel over the entire length of the pipe. The approximate depth of water over the pipe was three feet.

On June 26, 1964, the plaintiff went to the defendant’s swimming facility with his brother, Bob. After paying the customary admission fee and changing their clothes, both boys went out into the water to swim. The plaintiff swam beyond the bulkhead to dive from the diving tower while his brother, Bob, was swimming in another area. Both boys, after returning to the beach, determined to continue their frolic in the water by running directly from the beach area in front of the bath house into the water until their progress was impeded and then to make a dive allowing their momentum to propel them further out into the lake. As the plaintiff and his brother ran in the water, Bob was somewhat in front of the plaintiff. The plaintiff then claims that he made a running dive in about three feet of water, after first placing his hands and arms in an outstretched position above his head. In this process his head came in contact with “something hard” and he was immediately paralyzed. His brother turned after completing his dive, saw plaintiff in the water and, after determining that he was actually hurt, pulled him from the water to the beach area.

Two lifeguards immediately attended the plaintiff. Neither the lifeguards nor Bob saw any marks on or about the plaintiff’s head or body. The chief lifeguard, a young man who had worked five or six summers for the defendant, testified that he examined the lake bottom shortly after the accident, and again at different times thereafter, but was unable to find the pipe exposed or close to the surface of the lake bottom. Other of the defendant’s lifeguards, who examined the lake bottom some time after the accident, corroborated this testimony. The defendant’s employees testified that the sand bottom was generally soft and mushy.

On the other hand, the plaintiff presented witnesses who testified of incidents subsequent to the date of the plaintiff’s injury when they felt the presence of a chlorination pipe at or immediately below the surface of the lake bottom. The plaintiff further submitted two witnesses, Carter Jenkins and Herbert R Williams, both engineers, who conducted a survey of the lake bottom and the chlorination pipe on August 17, 1964, and August 20, 1964. These two witnesses jointly supervised a survey party and were responsible for the preparation of a topographical map of the area indicating where the chlorination pipe was located. Mr. Williams testified that on the date of the survey, and several days thereafter, when the depth of the sand was checked over the chlorination pipe, the depth varied at one point from % of an inch to 6 inches. The court, over objection, allowed Mr. Jenkins to testify and express the opinion that the installation of the chlorination pipe had been done incorrectly; that the pressure of the chlorinated water through the pipe, along with the preseason freezing and thawing of the lake bottom and water above, could cause the pipe to vary in depth from time to time in a manner similar to the way a fire hose would whip around although not quite that violently.

The plaintiff introduced medical testimony of three doctors. One, the attending physician, was a general surgeon who testified directly. Another was a neurosurgeon, called by the attending physician, who commenced administering medical attention shortly after the accident in addition to performing surgery thereafter. The third doctor specialized in physical medicine — rehabilitation, and testified through a deposition. The plaintiff, on direct examination of the attending physician, elicited the following testimony:

“MR. J. LONDRIGAN: Q. All right, Doctor, what history did you receive from Bill about what happened ?
“A. Well, I am referring to my records of June 26, 1964, while at the Lake Springfield Beach he ran into the water, made a shallow dive, and struck his head abruptly, flexed his neck. He noticed immediate paralysis and was brought from the water by a brother.
“Q. Doctor, assuming that Bill was not unconscious — as a matter of fact he was not unconscious when you saw him, was he ?
“A. He was conscious.
“Q. Conscious, yes.
“Assuming that Bill was unconscious at the time of this injury and that his head came through approximately three feet of water before coming in contact with some resistant object, would you expect to find any bleeding or any object of evidence of a head injury?
“MR. NEWKIRK: To which we object. No foundation.
“MR. J. LONDRIGAN: We connected it--
“THE COURT: The objection is overruled. He may answer.
“THE WITNESS: If the object which he struck had no sharp, irregular surfaces, it might well not produce any external skin injury.
“MR. J. LONDRIGAN: Q. Would you describe just how the injury occurs when the head comes in contact with some resistant object?
“A. Well, in this instance, the force is provided by the momentum of the young man’s body with actually diving and carries all of his weight which carries force until the head strikes a resistant or immovable force and forces it into a flexion, resulting in a fracture or spinal cord damage.
“Q. Well, assuming Doctor, that the head came in contact with some soft, mushy, sandy bottom, have you an opinion as to whether it is more probable that it could not occur in that manner than it would be more probable that it would have to hit a hard resistant object?
“MR. NEWKIRK: Object as it is a double barrel question and lack of foundation.
“THE COURT: The objection is sustained as to the question. You may ask for his opinion based upon the two parts.
“MR. J. LONDRIGAN: Q. Doctor, assuming that the sand on the beach bottom in the area where he dove was soft and mushy, could the bottom itself be described as a hard, resistant object?
“MR. NEWKIRK: Just a moment. He indicated it was hard in here which was not involved before.
“THE COURT: The question may be asked as a ‘resistant object.’
“MR. J. LONDRIGAN: As a resistant object?
“THE COURT: Would the Reporter read the question as modified ?
“Whereupon the Reporter read the last question leaving out the word ‘hard.’
“THE WITNESS: No.”

The following is the total cross-examination of the same doctor.

“Q. Doctor, you did examine Bill Sherman to see whether or not he had any marks on his body the first time you saw him, did you not?
“A. Yes.
“Q. There were no marks on his body, were there ?
“A. Not any significant injury other than what I have described.
“Q. You found no injuries in the top of his hair ?
“A. I don’t know that.
“Q. You don’t know how hard the sand is on the bottom of Lake Springfield Beach, do you ?
“A. I wasn’t there June 26th.
“MR. NEWKIRK: That’s all.
“THE COURT: You may step down, Doctor.
“MR. J. LONDRIGAN: That’s all, Doctor. Thank you.”

The neurosurgeon’s testimony was by way of deposition. With defendant’s counsel propounding the questions, his testimony is as follows:

“Q. When you first examined him Doctor, was there any visible marks on his head or face or any part of his body?
“A. No.
“Q. Was there any bleeding from any part of his body you noticed?
“A. No.
“Q. Doctor, I believe that you said that the type of injury here is typical of the injury one might have received with the head in a flexed position which, I believe, means with the chin down on the chest, is that correct?
“A. Yes.
“Q. From your experiences, can you determine what direction the force comes from to cause this type of injury?
“A. Gee, I don’t know exactly — in order to get the head flexed, there has to be some amount of force— I don’t know how to describe it — position—assuming in the erect posture, pushing down and — I can’t answer the question.”

Thereafter, plaintiffs’ counsel, during his examination, inquired and received this answer:

“Q. Doctor, you were just asked about the kind of force that might be applied to cause that sort of injury. Assuming that this young man dove into some shallow water and his head came in contact with an immovable object, would this cause a fracture of this type ?
“A. It would most likely cause this type of injury if the head is forced down to the chest. It couldn’t have been a straight fall — it has to be some angle to force down — some flexion involved.”

And upon further examination by defendant’s counsel, the following was had:

“Q. I have one question, Doctor. Is it possible that this type of injury could have been caused by the patient striking his head just on the bottom of the lake rather than on some object in the bottom of the lake?
“A. Yes.”

The above was all of the medical testimony produced at the trial relative to the proximate cause of the injury sustained.

At the conclusion, the judge submitted the case to the jury and included with other instructions were the following: IPI, No. 1.03, circumstantial evidence; 1.04, own observation; 10:05, minor standard of care; 21.01, burden of proof-probability; and 34.04, mortality tables.

The defendant first contends that although principles of law laid down by our former decision in the same case, however erroneous, are binding on the trial court, still our Court’s conclusions on factual issues are not so binding. The defendant asserts that the trial court, in the present case, allowed itself to be bound by the factual determination of our Court in the first appeal as it related to (a) whether the expert witness, Carter Jenkins, had personal knowledge sufficient to excuse a hypothetical question and (b) whether the reducer (plaintiff’s exhibit “A”) was the proximate cause of the injury and therefore material. The defendant further makes reference to this concept as one of “the law of the case.” This Court cannot take issue with the defendant’s statement of law. “The law of the case” theory is adequately supported in the case of Ziolkowski v. Continental Casualty Co., 365 Ill 594, 7 NE2d 451 (1937). There the Court clearly sets out, at page 599, the principle that when a court of review remands a cause to the trial court for a new trial, “. . . the trial court must, of course, be governed by the legal principles contained in the opinion of the reviewing court, but its conclusions as to matters of fact do not control on a later trial where the facts are to be determined in that trial.”

This Court does not believe that the trial court in the present appeal was in any way affected by or made its decisions outside of the above-stated principle. It is clear that the question of the sufficiency of personal knowledge on behalf of Mr. Carter Jenkins to excuse the use of a hypothetical question was factually determined at the time of the second trial. Sufficient questions and answers were asked of him to adequately support the court’s position that he had, in fact, personal knowledge.

In the second trial, the question of whether a reducer, which was part of the chlorination pipe, was the proximate cause of the injury was sufficiently determined by plaintiff’s own admission in argument and in his brief. No claim was made by plaintiff that a specific reducer was the cause of the injury. On the contrary, the plaintiff has contended in his pleadings, in the testimony as given at the time of trial, in arguments by his counsel and in his brief, that the injury was the proximate result of his head striking the chlorination pipe. In no area can this Court find a specific allegation of the plaintiff that the injury was proximately caused only by his head striking the reducer. As was stated in the first appeal, at page 212, concerning the same exhibit, “. . . it was not necessary that plaintiffs prove that plaintiff actually struck the pipe to make the exhibit relevant; it was relevant as evidence of the conditions that existed.” We disagree with the defendant that it was necessary for the plaintiff to prove that he struck the reducer in order for it to be admitted and to be relevant. Further discussion of these contentions will be had later because of the manner in which the defendant has presented them in its brief.

The defendant next contends that there was no evidence, either direct or circumstantial, that at the time of the accident the chlorination pipe was either exposed or had inadequate sand cover and that, therefore, there was no evidence of negligence on the part of the defendant. This Court feels that this issue is wholly inconsistent with the record of the trial. It appears to be undisputed from the record that in fact a pipe for chlorinating purposes was located in a given area of the defendant’s beach. It also appears to be undisputed that the injury to the plaintiff could only have been caused by having had his head come into contact with some “resistant body.” It seems further to be uncontested, and by the testimony of the defendant’s own witness, that the bottom of this lake was mushy. As plaintiff testified on direct examination that his head came into contact with “something hard,” a very strong circumstantial situation arises to support the contention that the plaintiff’s head came in contact with the pipe. This Court feels that there is sufficient circumstantial evidence to fairly support the verdict for the plaintiffs and will not set aside, on appeal, a decision of the court merely because there was not positive proof. Hurst v. Madison Coal Corp., 201 Ill App 205,207 (1916).

In line with the above contention the defendant claims that the trial court erred in giving, over its objections, IPI instruction 1.03 on circumstantial evidence which is as follows:

“A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved.”

It is argued that, “. . . The instruction clearly misstates the law. All that it requires is that you can reasonably infer a fact from the evidence, even though a contrary fact can be equally inferred, and such evidence is not circumstantial evidence.” For authority, the defendant relies upon Commerce Union Bank v. Midland Nat. Ins. Co., 53 Ill App2d 229, 202 NE2d 688 (1964) where at page 240 the Court says:

“The existence of a certain fact cannot be reasonably inferred from the evidence when the existence of another fact inconsistent with the first can be inferred from the same evidence. A fact cannot be established by circumstantial evidence unless the circumstances are of such a nature and so related to each other that it is the only conclusion that can be drawn therefrom. McKinney v. Illinois Power Co., 26 Ill App2d 193, 167 NE2d 249; Heiden v. Gaddberry, 23 Ill App2d 260,162 NE2d 260.
“We believe the rule with reference to the sufficiency of circumstantial evidence to warrant a reasonable inference of the existence of a fact is well stated in Coffin v. Chicago City Ry. Co., 251 Ill App 169, where the court stated:
“ ‘. . . a fact cannot be established by circumstantial evidence unless the circumstances are of such a nature and so related to each other that it is the only conclusion that can be drawn therefrom.’ ”

In the case at bar the only direct evidence pertaining to the cause of the injury was the plaintiff’s testimony that his head hit something hard. This is not disputed by the parties. The dispute is in identifying the “something hard.” The plaintiff claims it to be the pipe and the defendant claims it to be the lake bottom. There was no evidence introduced by either party that it could have been a rock or other resistant object. The sole additional light thrown upon this crucial point of causal connection is found in the medical testimony. The attending physician stated that the soft and mushy lake bottom could not be the resistant object. The neurosurgeon, in answer to plaintiff’s query, testified that coming into contact with an immovable object would most likely cause the injury. However, upon examination by the defendant, he answered “yes” when asked if the injury could have been caused by plaintiff’s head striking the bottom of the lake rather than some object at the bottom of the lake. Here it should be noted that the last question to the neurosurgeon was not qualified by the fact that the lake bottom was soft and mushy as testified to by the defendant’s employees.

It is the thrust of defendant’s argument that when the neurosurgeon answered the last question in the affirmative, there was created another circumstantial fact as to causation which was inconsistent with the plaintiff’s circumstantial fact of causation; that, consequently, the rule set forth in the Commerce Union Bank case would apply and therefore the instruction was given in error. The instruction states that a fact may be proved by circumstantial evidence and then goes on to define what constitutes circumstantial evidence. It applied equally as well to the defendant’s version of causation as it did to the plaintiff’s version. Conflicting medical evidence as to causation, if, in this case under the evidence outlined above, it can be said to be conflicting, is not by itself sufficient to upset the jury’s verdict as being contrary to the manifest weight of the evidence. The evidence submitted by the plaintiff was sufficient to draw a reasonable inference of causation. See, Livingston Service Co. v. Industrial Commission, 42 Ill2d 313, 317-318, 247 NE2d 412 (1969). Relative to the Commerce Union Bank case, see American Nat. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill App2d 163, 173-175, 191 NE2d 628 (1963), an earlier case, and the cases cited therein for a contrary position. Like the Commerce Union Bank case, our Supreme Court denied leave to appeal, 27 Ill2d 625.

The defendant raises numerous questions, relating to the propriety of allowing Carter Jenkins, the plaintiff’s witness, to testify without requiring a hypothetical question. The law on this question was definitively covered in the prior appeal. Sherman v. City of Springfield, supra, pp 203, 204. Regardless, because of the manner of presentation in defendant’s brief (and to the point of being somewhat repetitious), the defendant indicates: that Jenkins was not qualified to give an expert opinion; that it was error to allow Jenkins to testify without presenting a hypothetical question to him; that it was error to allow Jenkins to testify as to his opinion of the propriety of installation of the chlorination pipe, that the court erred in admitting a certain diagram from a survey supervised by Jenkins and in allowing him to testify thereon; that the court erred in allowing Jenkins to testify where certain spots in the survey indicated exposure of pipe when said locations in the survey were based on hearsay; that the court erred in allowing Jenkins to give an expert opinion before permitting defendant’s attorney the opportunity of cross-examining; and that the court erred in allowing Jenkins to illustrate his opinion with exaggerated comparisons. This Court feels that there was adequate testimony in the record to support the conclusion by the trial court that Carter Jenkins had personal knowledge of this chlorination pipe. Jenkins was first qualified as an engineer who had numerous years of experience in and about the laying of water pipe and pressure pipe. He was thereafter the supervisor of a party of surveyors who went to the beach and personally surveyed the beach area and the particular location of the chlorination pipe. The trial court determined that Jenkins had firsthand knowledge of the material facts with regard to the chlorination pipe, that is, as to its location at the time the survey was conducted and the general engineering dynamics of a pipe utilized in this particular manner. It has been previously defined with clarity by this Court in its prior decision, that an expert witness may express his own opinion without a hypothetical question when the opinion is based upon his own personal knowledge and observation.

The propriety of the trial court allowing into evidence a certain diagram from a survey and admitting a certain mock-up of a section of pipe, including the reducer between the two sized pipes, raises essentially the same question. It has long been held that diagrams such as surveys or plats (so long as they are material, a proper foundation has been laid and they are not cumulative) may be admitted into evidence. Department of Public Works and Buildings v. Chicago Title & Trust Co., 408 Ill 41, 52, 95 NE2d 903 (1950). Similarly, our courts have long followed a procedure of allowing working models of machinery and mock-ups into evidence when their admission tends to further clarify a subject or question in issue. Pennsylvania Coal Co. v. Kelly, 156 Ill 9, 17-18, 40 NE2d 938 (1895); Nelson v. Union Wire Rope Corp., 39 Ill App2d 73, 103, 187 NE2d 425 (1963). We feel that the admission of the survey in this case was certainly material and properly predicated on a foundation before it was utilized by Jenkins. It was not cumulative and was within the court’s discretion to allow it into evidence. Similarly, the mock-up of the section of the chlorination pipe was a valid exercise of the court’s discretion in presenting further demonstrative evidence to the jury. See also, Virgil v. New York, C. & St. L. R. Co., 347 Ill App 281, 286, 106 NE2d 749 (1952). We cannot say that the defendant was in any way prejudiced by the admission of these demonstrative items.

The defendant has not cited any cases to support its claim of error in not being allowed to cross-examine Jenkins prior to his giving an expert opinion and in allowing the opinion to be illustrated by exaggerated comparison. We cannot say, as a matter of law, that these two claims prejudiced the defendant so as to create reversible error.

The defendant next contends that the court erred in taking judicial notice of and admitting into evidence, a certain life expectancy table. The defendant further claims that the court erroneously instructed the jury by giving IPI No. 34.04 on life expectancy tables. The defendant particularly objects to the court’s utilization of the life expectancy table without having called an actuary or some similarly qualified person to explain the standards therein set out. Although the defendant wholly fails to discuss any of the cases cited as authority for its proposition on this point, nor was any proof offered to discredit its authenticity, one of the cases cited by the defendant sets out the law in Illinois. In the case of Hann v. Brooks, 331 Ill App 535, 73 NE2d 624 (1947), the Court at page 549 stated, “Recognized mortality tables have been admitted in evidence in Illinois without proof of authenticity or correctness for years. . . . The authenticity of this exhibit has not been questioned and we think its admission in evidence was proper.” The court in the Hann case indicated that, as the life expectancy tables in question had been prepared by Guardian Life Insurance Company, a recognized life insurance company doing business in the State of Illinois, it was well within the province of the court to take judicial notice of the expectancy table. In the present case the mortality tables were taken from American Jurisprudence Desk Book (Am Jur2d Desk Book, Doc No. 140). Certainly, it was within the province of the court’s sound discretion to allow the life expectancy tables contained therein as a standard to be utilized before the court. The court is presumed to have considered the source of the material and its common utilization upon admitting the mortality tables in question into evidence.

The defendant’s suggestion that the court improperly submitted to the jury IPI Instruction 34.04, entitled, “Mortality Tables as Evidence of Damages,” is not supported in the law or the facts. The defendant offers no substantive law or case law to support its position. Factually, the trial court utilized the above instruction exactly as suggested in the Illinois Pattern Jury Instructions (Civil) and this Court can see no error in the trial court’s submission of the instruction on which to predicate error.

The defendant next claims that the court erred in refusing to withdraw from the consideration of the jury all of the remaining specific charges of negligence that remained in the complaint, after amendment, namely: (1) that the defendant failed and neglected to keep the pipe, through which water entered said beach, covered so that persons unfamiliar with said beach would not be injured by contact with the pipe; (2) that the defendant carelessly and negligently failed to install said pipe at sufficient depth to be safe for swimmers using said beach; (3) and that the defendant carelessly and negligently failed to inspect the bottom of said beach pool and to ascertain the condition thereof. This would be tantamount to saying that there was no evidence of negligence on the part of the defendant. We have already determined this contention to the contrary and feel that the above three issues, as submitted to the jury, were points which were in contest and questions for the jury to determine. The trial court is bound as a matter of law to instruct the jury on all issues reasonably raised by the evidence and testimony. The question of what issue or issues have actually been raised by the evidence is one which falls rather broadly into the discretion of the trial judge. This court will not find error or set aside the ruling of the trial judge based on discretionary matters unless there has been a clear abuse of discretion. We find no such abuse with respect to this point.

The defendant’s last contentions, concerning IPI instructions 1.04,10.05 and 21.01, are summarily disposed of by this Court by pointing out that these instructions were given within the discretion of the trial court and were supported by the evidence submitted at the time of trial. The instructions, as given, are clear recitations of the instructions as suggested in the Illinois Pattern Jury Instructions (Civil) and the defendant has offered no case law showing this Court where error was committed in utilizing these instructions nor has the defendant suggested any valid factual point indicating error on the part of the trial judge. This Court cannot visualize that the giving of any of the instructions has, in any way, prejudiced the defendant’s position in this case. It has been consistently held that a reviewing court will not reverse a trial court for a faulty instruction unless it clearly misled the jury and resulted in prejudice to the appealing party.

For the reasons set forth herein, the judgments appealed from will be affirmed.

Judgments affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


author: EBERSPACHER, J.

text:
    St. Louis Union Trust Company, Executor of the Will of William G. Hearne, Deceased, Plaintiff-Appellee, v. James G. Hearne, Susan Hearne Wood, and Edwardsville National Bank and Trust Company, as Administrator with Will Annexed of the Estate of Elizabeth Ellen Hearne and as Successor in Title to the Trust Estate of the Residuary Trust Under the Will of Frank P. Hearne, Defendants-Appellants.
    Gen. No. 68-63.
    Fifth District.
    August 11,1969.
    Rehearing denied September 23,1969.

      Hoagland, Maucker, Bernard & Almeter, of Alton (Karl K. Hoagland, Jr., of counsel) and Dick H. Mudge, Jr., of Edwardsville, for appellants.
    Schlafly, Godfrey & Fitzgerald, of Alton, for appellee.
   EBERSPACHER, J.

This action was brought to construe the language which created the residuary trust under the Will of Frank P. Hearne, deceased. The action was brought by the St. Louis Union Trust Company as executor of the Will of William G. Hearne, deceased. William G. Hearne, deceased, was a son of the testator whose will created the trust. The parties defendant are James G. Hearne and Susan Hearne Wood, a son and daughter respectively of the testator, Frank P. Hearne, deceased, and Edwards-ville National Bank and Trust Company, the administrator with the will annexed of the Estate of Elizabeth Ellen Hearne and as Successor in Title of the Trust Estate of the Residuary Trust under the Will of Frank P. Hearne, deceased. The defendants prosecute this appeal from a decree entered in favor of the plaintiff, St. Louis Union Trust Company.

Frank P. Hearne died May 12, 1935. He left surviving his wife, Elizabeth Ellen Hearne and three children, William G. Hearne, James G. Hearne and Susan Hearne Wood. The will of Frank P. Hearne was admitted to probate on July 15, 1935. The portions applicable to this appeal provide as follows:

“ITEM 4. All the rest, residue and remainder of my estate, real, personal or mixed, of whatsoever nature or wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise, and bequeath to Mercantile-Commerce Bank & Trust Company and my beloved wife, Elizabeth Ellen Hearne, IN TRUST, NEVERTHELESS, to pay the net income of the trust fund in twelve (12) installments per annum to my said beloved wife, Elizabeth Ellen Hearne, so long as she shall live, with the right and privilege of giving Twenty-five Thousand ($25,000.00) Dollars of said trust fund to my said wife, Elizabeth Ellen Hearne at any time she may desire the same, in addition to the income from the trust funds as aforesaid.” (Then follows three paragraphs devoted to the powers of the trustees which provide in substance that the trustees shall hold and manage the trust fund according to their sole judgment and discretion.)
“At the death of my beloved wife, Elizabeth Ellen Hearne, this trust estate shall terminate and the principal of the trust then remaining shall be paid unto my children, William G. Hearne, James G. Hearne, and Susan Hearne Wood, share and share alike, or if they or either of them be deceased, then share and share alike unto such child or children of such deceased child or children of mine, in the place and stead of such deceased child or children of mine; but in no event unto such surviving child or children of any deceased child of mine until such surviving child or children of such deceased child shall have reached the age of twenty-five (25) years.” (Then follows a paragraph creating a trust for a child or children of a deceased child not having reached the age of 25 years.)

Mercantile-Commerce Bank and Trust Company declined to accept the trusteeship and the widow acted as sole trustee and managed the trust estate until her death on November 17, 1963. The will of Elizabeth Ellen Hearne was admitted to probate on December 13, 1963. In this will she had appointed her son, William G. Hearne, executor, but by reason of his death, the Edwardsville National Bank and Trust Company was appointed Administrator with Will Annexed of her estate and succeeded as trustee under the will of Frank P. Hearne.

As stated above, William G. Hearne predeceased his mother, having died on September 26, 1962. William was survived by his wife but left no children. His will was admitted to probate in the Probate Court of Madison County, Illinois, and the St. Louis Union Trust Company, the plaintiff herein, was appointed executor.

In the complaint filed by the plaintiff it is alleged that the administrator of the estate of Elizabeth Ellen Hearne and successor trustee proposes to make a distribution of all of the remaining assets of the Frank P. Hearne estate to the two surviving children, namely, James G. Hearne and Susan Hearne Wood. The complaint seeks a construction that the will create a vested remainder interest in the three children of the testator or in the alternative that the will violated the rule against perpetuities.

The answer of the defendant, Edwardsville National Bank, admits that it intended to make a final distribution to the two named children and the answers of all three defendants seek a construction of the will which would sustain such a distribution.

After a full hearing on the matter the Court entered an order finding for the plaintiff. At the same time an extensive and scholarly written opinion was filed by the Court in support of its findings and order. A subsequent decree was entered pursuant to such order which found that the provision here at issue created a vested remainder in the children of the testator upon the condition that it could be divested if any of the children who predeceased the life tenant had surviving a child or children and as such was a vested remainder, subject to a condition subsequent. Accordingly, the Court held that since William G. Hearne did not have any surviving child the gift over in event of death of a remainderman failed and his interest became absolute and should go to his estate to be disposed of by his will. The Court further in its decree assessed a portion of the plaintiff’s attorney fees against the defendants, James G. Hearne’s and Susan Hearne Wood’s share of the trust estate.

This appeal brought by all of the defendants seeks a determination of three issues: (1) whether the estate of William G. Hearne, deceased, had any interest in the Frank P. Hearne residuary trust in view of William G. Hearne’s death prior to the death of the life tenant, Elizabeth Ellen Hearne; (2) whether the remainder interest violated the rule against perpetuities; (3) whether the assessment of attorney fees was error.

The cardinal rule of testamentary construction to which all other rules must yield is to ascertain the intention of the testator from the will itself and to effectuate this intention unless contrary to some established rule of law and public policy. Vollmer v. McGowan, 409 Ill 306, 311, 99 NE2d 337. The defendants urge that although the trial court acknowledged the prominence of such rule the court relied primarily upon the application of technical rules of construction rather than the actual meaning of the words employed in the entire will.

The defendants urge that the intention of the testator is clear and concise; that the will consistently expresses preference for the testator’s wife and lineal descendants; that the will consistently expresses an intention of the testator to benefit his children who were alive at the death of his widow. The plaintiff, on the other hand, urges with equal force that the intention of the testator reflects that no one is to take the share of the deceased child unless the deceased child leaves a child who survives. The defendants in support of their contention direct our attention to Item 7 of the will. The defendants urge that the phrase “wife and family” as used in the context of Item 7 must be interpreted to mean that the testator did not consider his own wife to be a part of his family and that accordingly it would be unreasonable to presume that the testator in the use and reference to his “wife and family” intended to include the wife of any of his children as “family.” The plaintiff argues with equal persuasion that the testator expressed a normal desire to divide his estate equally among his three children and to provide for his grandchildren in the event of the death of their parent during the existence of the trust. To bolster their argument the plaintiff argues that the testator was well aware of the means by which he could have precluded the vesting as is indicated by the language he used in that part of Item 4 not heretofore quoted and Item 3 which refers to a separate trust.

The only conclusion that can be reached is that the ambiguity of the language requires the application of rules of construction. Trabue v. Gillhan, 408 Ill 508, 97 NE2d 341; Storkan v. Ziska, 406 Ill 259, 94 NE2d 185.

There are certain general rules of construction which must be kept in mind in determining whether an interest is vested or contingent. First, the law favors vesting of estates at the earliest possible moment; second, where one of two constructions is possible, the construction that a devise is vested and not contingent will be adopted; and third, if a donor or testator clearly intends to postpone vesting, that intention must be given effect. Peadro v. Peadro, 400 Ill 482, 81 NE2d 192; Baker v. Bates, 76 Ill App2d 30, 221 NE2d 302.

In determining whether the intention of the testator was to create a vested remainder or a contigent remainder our Supreme Court in Danz v. Danz, 373 Ill 482, 486, 26 NE2d 872 has said:

“If the conditional element is incorporated into the description of, or into the gift to the remainderman then the remainder is contingent; if after words giving a vested interest a clause is added divesting it, the remainder is vested. A pertinent application of this rule would be in case of a devise to ‘A’ for life, remainder to his children, but if any child dies during the lifetime of ‘A,’ his share to go to those who survive, the share is vested subject to being divested by its death. But if the devise is to ‘A’ for life, remainder to such child of his children as survive him the remainder is contingent.”

Also see Storkan v. Ziska, 406 Ill 259, 94 NE2d 185; Smith v. Shepard, 370 Ill 491, 19 NE2d 368; Fleshner v. Fleshner, 378 Ill 536, 539, 39 NE2d 9.

The main thing which distinguishes a vested from a contingent remainder is its present capacity to take effect in possession in a determinate person immediately upon the determination of the particular estate. In the one case there is a person in being ascertained and ready to take with a present right of future enjoyment, while in the other there is either no ascertained person in being ready to take immediately upon the determination of the particular estate or it is uncertain whether the event upon which the estate is to vest will ever happen. It is the uncertainty of the right to take property, and not the enjoyment of it, that distinguishes a contingent from a vested remainder. Riddle v. Killian, 366 Ill 294, 8 NE2d 629.

The words “after the death of my wife,” of themselves do not postpone the vesting of the estate. Such words, unaccompanied by other controlling language, have been held to mean that the distribution or the enjoyment in possession of the property granted is to be postponed to let in the life estate, but the remainders created are vested, and that such words as “after the death of my wife” relate to the time of enjoyment and not to the time of vesting. Barker v. Walker, 403 Ill 230, 307, 85 NE 2d 748; Dustin v. Brown, 297 Ill 499, 130 NE 859; Whittaker v. Porter, 321 Ill 368, 151 NE 905; Fleshner v. Fleshner, 378 Ill 536, 39 NE2d 9.

Appellants have contended that since testator used the words “my wife and family” in Item 7 that he did not consider a spouse of his children as a part of the family. It is only natural that he should separate wife from family because he realized his wife could renounce her life estate and the other members of his family could not. This is evidenced by his expression of the desire “that my wife assent to this Will.” Family may include relations by marriage. Marble v. Estate of Marble, 304 Ill 229, 236, 136 NE 589. The will did not say he wished only his descendants to ultimately benefit; and there is no evidence that he intended to discriminate between the spouses of his children who failed to outlive his wife and their mother, and those who did outlive his wife and their mother.

The contention that testator’s children had only a contingent remainder unless they survived their mother, reads into the will words of survivorship which are not present. The fact that treating the gift to children as vested results in one-third going to an in-law instead of to surviving children does not justify reading words of survival into the will. Arguments similar to those presented here regarding family and a desire to keep the estate in hands of lineal defendants were rejected in Warner v. Warner, 237 F2d 561, 564, (App DC), the Court relying in part on DeKorwin v. First Nat. Bank of Chicago, 179 F2d 347, (7th CCA, Ill).

Appellants also contend that there are no direct words of devise or gift to any of the beneficiaries of the residuary trust. There were direct words of devise and gift to the trustee and direct words that on the death of the widow the principal should be paid to the three children. Illinois cases have held that remainders similar to that of William G. Hearne’s were vested even though there were no direct words of conveyance to the remainderman. See DeKorwin v. First Nat. Bank of Chicago, supra; Smith v. Shepard, 370 Ill 491, 493, 19 NE2d 368; People v. Allen, 313 Ill 156, 158,144 NE 800; Warner v. Warner, supra.

Obviously the gift to the Hearne children was not a class gift, those who were to be paid the proceeds were not only individually named but their share was made certain by the words “share and share alike.” See Strohm v. McMullen, 404 Ill 453, 89 NE2d 383; and Peadro v. Peadro, supra.

The remainder limited to the three children was vested. However, the critical question as we see it, is the effect of the language of divestiture employed by the will. The conditions under which the interest of William G. Hearne would be divested are found in the phrase “or if they or either of them be deceased, then share and share alike unto such child or children of such deceased child or children of mine;....” Under the present facts the gift over has failed since William G. Hearne did not leave a child or children. This being true, the divestiture is incomplete. The failure of the gift over rendered the conditional estate absolute, Burkholder v. Burkholder, 412 Ill 535, 107 NE2d 729; McGlothin v. McElvain, 407 Ill 142, 95 NE2d 68. It follows that William G. Hearne’s remainder interest became a fee simple absolute and his interest went to his estate to be disposed of in accordance with his will.

Not only is this construction supported by Burkholder, supra, and McGlothin, supra, but is supported likewise by leading textbook authorities on future interests in Illinois. See Carey and Schuyler, Illinois Law of Future Interests, § 176 (1954 Cum PP, p 136) wherein McGlothin and Burkholder are discussed; and after quoting the language of the Burkholder will, points out that in that case one of the testator’s children had predeceased the widow, leaving no child surviving him, and in the partition proceeding it was argued that the deceased child’s share of the real estate did not pass as a part of his estate but passed as a part of the estate of the testator. The authors then say:

“Apparently this contention was based in part on the notion that the event upon which the gift in remainder to the deceased son was to be divested had occurred, notwithstanding the fact that the property was to go over only if any child died ‘leaving surviving’ a child or children and the further fact that the son had not left a child surviving him. In other words, it must have been urged that the taking effect of the gift over was not a part of the divesting contingency. It should be noted that this was in no event a proper argument for the unambiguous language of the will was in itself not susceptible of the interpretation that divestiture could occur unless a remainderman died leaving children surviving.”

We do not consider the language of Hearne’s will susceptible of the interpretation that divestiture of one of his children could occur when such child died leaving no child or children. There is an absence here of any well-founded showing that Hearne intended to favor his children who had children over those who did not, nor is there such showing that the testator wished to favor his long-lived children over his shorter-lived ones. Furthermore, the drafter of his will knew how to prevent vesting (See items 3, 4 and 7 of the Hearne will) if such had been the testator’s intention.

The view that the remainder devised to William G. Hearne was a fee subject to a condition subsequent which could only be divested by his death leaving a child or children is not only supported by Burkholder, but is the majority view. See 28 Am Jur2d, Estates, § 296, wherein it is stated, “The greater number of decisions, however, proceed on the theory that divestment occurs only on death leaving issue, and that there is no divestment by death without issue.” Such view is likewise supported by the American Law Institute Restatement of the Law of Property, Vol 111, Future Interests, § 254, p 1284:

“A. Limitations which come within the rule stated in this Section are commonly of some one of three types. In the first of these types the gift over is to take effect if the taker dies survived by children (or issue) but no provision is found for the situation in which the taker dies unsurvived by children (or issue) (See Illustration 1). . . .
“Illustrations:
“1. A, owning Blackacre in fee simple absolute, effectively devises Blackacre ‘to B for life, remainder to B’s children, but if any child of B predeceased B, survived by children, then such persons shall take the parent’s share’. B has children C and D.
“I. C has children E and F. C’s remainder is subject to defeasance by C failing to survive B if, but only if, E or F or other issue of C is alive at the time of C’s death.
“II. D dies without ever having had issue. B dies. The vested remainder originally created in D is not defeated by D’s failure to survive B.”

That the above rule is applicable here is apparent when we designate Frank P. Hearne, the testator as A, his widow Elizabeth as B, his daughter Mrs. Wood or son James G. Hearne as C, and his deceased son William G. Hearne, as D.

By reaching the decision that we have, i. e., that the remainder interest was vested in William G. Hearne, we have necessarily foreclosured ourselves as to any question as to the Rule against perpetuities. McKibben v. Pioneer Trust & Savings Bank, 365 Ill 369, 6 NE2d 619; Griffin v. Griffin, 29 Ill2d 354, 194 NE2d 641.

The last issue presented by the defendants pertains to the attorney fees allowed by the court in favor of the plaintiff’s attorneys. In the decree entered by the court attorney fees in a specific amount were allowed by the court. The order also provided that specific portion of the total amount, which was Ys of the total attorney fees allowed, would be paid by the Defendant Administrator from the James G. Hearne and Susan Hearne Wood shares of the trust estate of Frank P. Hearne, deceased, and the balance or remaining % from the William G. Hearne share of said trust estate. Only the Ys payable from the trust could be an issue in this appeal.

The gist of the defendants’ argument is threefold:

(a) Attorney fees in will construction suits should not be taxed against the corpus of the estate where the will is not ambiguous and does not require construction; (b) Attorney fees in will construction suits should not be taxed against the corpus where the plaintiff is seeking personal gain only, to enforce an interest for his own personal account and not for the benefit of the estate; and (c) Attorney fees in will construction suits must be reasonable and equitable.

We shall deal with the defendants’ arguments in the order in which they are presented above. As to the defendants’ first argument that the will was clear and unambiguous and does not necessitate construction, we believe the language of the Court in Orme v. Northern Trust Co., 25 Ill2d 151, 165, 183 NE2d 505, to be applicable:

“In will construction cases the costs of litigation are borne by the estate on the theory that the testator expressed his intention so ambiguously as to necessitate construction of the instrument in order to resolve adverse claims to the property. (Dean v. Northern Trust Co., 266 Ill 205.) Legal fees are allowed to a party even though the construction adopted is adverse to his claim. (Ingraham v. Ingraham, 169 Ill 432, 471; Haight v. Boyce, 274 Ill 162.) However such fees should not be authorized where such construction is unnecessary. . . . The criterion is whether an honest difference of opinion exists. In re Estate of Reeve, 393 Ill 272, 294; La Salle Nat. Bank v. MacDonald, 2 Ill2d 581, 589; Strickland v. Strickland, 271 Ill 614.”

The present case certainly fits into the criterion as to whether an honest difference of opinion exists as is apparent from the litigation as of this date, and by the very fact that the defendant has prosecuted this appeal. Furthermore, by the admission of the successor trustee in its answer, some action was necessary to correct the construction it was using in its proposed distribution.

As to the defendants’ second argument that attorney fees should not be taxed against the corpus where the plaintiff is seeking personal gain only, the defendants have cited as authority Waxenberg v. Brown, 299 Ill App 225, 20 NE2d 150. In that case the court found that the plaintiff had forfeited his interest in the testate property by contesting the will and that the plaintiff was seeking relief as an heir at law of the testator. The facts in the present case are the converse. The plaintiff here is seeking a will construction on behalf of the estate of William G. Hearne as a vested remainderman of the trust created under the will of the testator. We also note that the construction which the plaintiff sought applied to the entire remainder of the trust. We might also note that in any will construction suit the plaintiff will always be seeking to enforce a personal interest in varying degrees.

As to the amount of the attorney fees which are objected to by the defendant, we will not disturb the opinion of the trial court which made specific findings as to the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to conduct the cause and the benefits resulting from such services.

The decree of the Circuit Court of Madison County, Illinois, is accordingly, affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       “ITEM 7. This will has been carefully planned by me and it is my deliberate judgment that all of its provisions are wise and just and that the plan as a whole will prove beneficial and satisfactory to my wife and family. It is, therefore, my desire that my wife assent to this will and cooperate with this plan which I am confident will work to the advantage and welfare of herself and of the family as a whole.”

       “ITEM 3. . . . No title in the trust estate hereby created or in the income accruing therefrom or in its accumulation shall vest in the beneficiary, and the beneficiary shall not have the right or power to transfer, assign, anticipate or encumber his interest in said estate or the income therefrom prior to the actual distribution thereof by said trustee to said beneficiary. . . .
      “ITEM 4. ... In the event a child or children of a deceased child or children of mine, not having reached the age of twenty-five (25) years, inherit under this will, except my grandchild, James Scott Biggs, such inheritance due him or her shall be held in trust for such child or children by his then remaining parent, if there be such, otherwise by the Mercantile-Commerce Bank & Trust Company of St. Louis, until such child or children attain the age of twenty-five (25) years, with no title in such trust estate or the income accruing therefrom, or its accumulation, vesting in such beneficiary; and the beneficiary shall not have the right or power to transfer, assign, anticipate or encumber his interest in said estate or the income therefrom prior to the actual distribution thereof by said trustee to said beneficiary, and neither the income nor principal shall be liable in any manner in the possession of the trustee for the debts, contracts, or engagements of the beneficiaries. The beneficiary shall not be permitted to appoint any agent or attorney-in-fact, except as may be specifically permitted by the trustee, to collect or receive such income or principal, if such agent or attorney-in-fact has directly or indirectly advanced any of such income or principal to such beneficiary.

        a


text:
    Cherie Whelan Bennett and Martin Whelan, Plaintiffs-Appellees, v. Carolyn Boyer, a/k/a Carolyn Boyer Neikirk, Defendant-Appellant.
    Gen. No. 11,074.
    Fourth District.
    August 12,1969.

      Claudon & Elson, of Canton, for appellant.
    Greenberg, Janssen & Becker, of Peoria (Arthur G. Greenberg, of counsel), and Daniel Handlin, of Lincoln, for appellees.
   TRAPP, P. J.

Defendant appeals from judgments entered upon jury verdicts in favor of the respective plaintiffs for personal injuries in the sum of $11,000, and for property damage in the sum of $850. Upon argument on appeal defendant confessed that the owner of the automobile, Martin Whelan, is entitled to recover for property damage. The trial court denied defendant’s post-trial motion which renewed a request for a directed verdict, and a motion for judgment non obstante veredicto.

It appears that the trial court filed a memorandum opinion of reasons for denying defendant’s motion. Neither party has seen fit to include such in the praecipe for record. This Court should have the benefit of the trial court’s consideration of the issues presented to him.

Defendant argues that the plaintiff, Cherie Bennett, was guilty of negligence as a matter of law. The jury answered defendant’s special interrogatory with a finding that Cherie Bennett was exercising ordinary care for her own safety.

Immediately prior to the collision plaintiff was driving north upon a street in the town of San Jose. Defendant was approaching the intersection from the west. Upon oral argument, defendant confesses that she was negligent in driving into the intersection. Cherie Bennett and her brother, who was 18 at the time of the trial, each testified that as their automobile approached the intersection from the south, the driver almost stopped and each looked to left and right and saw nothing; that the car was driven into the intersection in reduced gear and when near the center of such, each saw defendant’s car which came from the left and struck plaintiffs’ automobile in the middle and rear of the left side. The brother estimated that plaintiffs’ car was pushed 25 feet into the northeast quadrant of the intersection, and that defendant’s car was partially under plaintiffs’ automobile as they came to rest.

Defendant’s contention rests upon an interpretation of certain answers of Cherie Bennett during cross-examination. She was asked if anything blocked the view to the left and she responded, “At that time I believe there was a tree.” She answered “yes” to a further question as to whether a tree blocked her view when she first looked to the left. So far as the abstract shows, plaintiff’s brother was not asked about an obstruction of the view to the left. Nothing before us discloses the size of the tree or its proximity to the intersection, and it cannot be determined whether any obstruction of view, as argued, was immediate or remote.

The contention that plaintiff was guilty of contributory negligence as a matter of law is based upon the claim that her view to the left was obstructed, but that she nevertheless proceeded without again looking to the left until an instant before the collision at which time she was at or near the center of the intersection.

Defendant cites as authority Crowe Name Plate & Mfg. Co. v. Dammerich, 279 Ill App 103; Kirchoff v. Van Scoy, 301 Ill App 366, 22 NE2d 966; Ferno v. Brown, 14 Ill App2d 507, 145 NE2d 91; and Walker v. Illinois Commercial Tel. Co., 315 Ill App 553, 43 NE2d 412. In each of these cases the opinion notes the evidence that the party did not look to the left at any time prior to entering the intersection. Walker is the only case cited which explicitly concerns an obstruction to the view of a plaintiff. In that case plaintiff, traveling on a preferential street, approached the intersection where the view was obstructed by a parked telephone truck and equipment. The opinion reports evidence of plaintiff’s high speed and that he did not look, at any time, for other vehicles which might be entering the intersection. Plaintiff’s judgment was reversed, but the court pointed out that if there was any evidence of plaintiff’s due care there would be a question of fact to be decided by the jury, but that since there was no evidence upon such issue the judgment was reversed as a matter of law.

In Pfister v. West, 53 Ill App2d 305, 203 NE2d 35, the court notes that the presumptions concerning right-of-way did not excuse the favored motorist from exercising reasonable care in the light of the circumstances, but that they did establish that it is a question of fact whether the favored motorist exercised reasonable care in entering the intersection.

Here there is evidence that plaintiff did look after almost stopping, and proceeded into the intersection in lower gear. The movement of the cars after impact raises an inference of speed as to defendant’s car. This record does not show such quantum of obstruction to plaintiff’s view as she approached the intersection that we can say, as a matter of law, that the trial court erred in denying the post-trial motions. It is properly for the jury to determine whether or not she was exercising reasonable care in the light of the circumstances present at the time and place.

The judgment of the Circuit Court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.