author: PRESIDING JUSTICE HIBBS

text:
    Clinton E. Luckes, Plaintiff-Appellee, v. Anna Pauline Luckes, Defendant-Appellant.
    Gen. No. 10,009.
    Third District.
    February 14, 1956.
    Released for publication March 1, 1956.
    Londrigan & Londrigan, of Springfield, and Charles H. Weyl, of St. Paul, Minnesota, for appellant.
    Robert Weiner, of Springfield, for appellee.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

The Circuit Court of Sangamon County, Illinois, on the 6th day of July 1954 entered a decree of divorce in favor of the plaintiff, Clinton E. Luckes and against the defendant, Anna Pauline Luckes on the ground that the defendant was guilty of willful desertion. The defendant has appealed from that decree.

The appellant commenced a suit for divorce in the District Court of Ramsey County, State of Minnesota against the appellee in February 1954, wherein she charged the appellee with desertion, prayed for a decree of divorce, custody of their sole child, support money for the maintenance of the child, attorney’s fees and costs. Personal service was had upon the defendant, and on March 26, 1954 he filed in the office of the clerk of that court his answer to the complaint.

Subsequent to the filing of said suit in the Minnesota court and on March 3, 1954, the appellee filed in the Circuit Court of Sangamon County, Illinois a petition for waiver of declaration of intention to file a complaint for divorce, supported by affidavit, wherein no reference is made to the pending suit in the State of Minnesota, and on the same day the Circuit Court of Sangamon County entered an order that the requirements of “an act in relation to actions for divorce, separate maintenance and alimony” was waived. On the same day the appellee filed his complaint alleging the appellant was guilty of willful desertion, that one child had been born of the marriage, and praying that a divorce be decreed to him. Service was had upon appellant by publication, and on the 5th day of April 1954 appellant filed her answer wherein she alleged that she was a resident of the State of Minnesota, and prior to the commencement of the action in Sangamon County she had commenced a suit for divorce in the District Court of Ramsey County, Minnesota, and that service of summons was had upon the appellee prior to the commencement of his action in Sangamon County. She also filed a cross-bill alleging that appellee was guilty of willful desertion for more than one year next preceding the filing of the answer, prayed for a decree of divorce, and that she be awarded custody of their son and the sum of $62.50 per month for the support of the child. On June 23, 1954 appellant filed a supplemental answer containing the same allegations as set forth in her answer and further alleging that the action in the District Court of Ramsey County, Minnesota came on for trial on June 21,1954, and after a motion by appellee for continuance was denied, evidence was duly taken and a decree was entered granting to appellant an absolute divorce from tbe appellee and awarding to her the custody of their minor son with support money in the amount of $62.50 per month for that child from June 1, 1954 until May 18, 1971, when such child would arrive at full legal age. She further alleged that the issues raised by the complaint of the appellee in the Circuit Court of Sangamon County, Illinois were moot and the decree of the Minnesota court was res judicata, a certified copy of which was attached to the supplemental answer. Appellee filed his replication to the supplemental answer alleging that he was a captain in the Armed Forces of the United States assigned to duty with a Springfield detachment; that he was not available to defend the cause of action for divorce pending against him in the District Court of Ramsey County, Minnesota on June 21, 1954; that he had filed his motion to stay the Minnesota proceeding, as provided by the Soldiers’ and Sailors’ Civil Relief Act, but that the District Court of that county overruled his motion to his prejudice and in violation of his rights guaranteed him under the Soldiers’ and Sailors’ Civil Relief Act, and attached thereto was a copy of his motion filed in the Minnesota court, a copy of Ids affidavit as well as the copy of the affidavit of his superior officer.

On the 29th day of June 1954 the appellant made a motion in the Circuit Court of Sangamon County to dismiss the complaint, and the court took the same under advisement until the 6th day of July 1954. Thereupon a hearing was had on the complaint, the answer, supplemental answer and replication, and the court took the cause under advisement to July 6, 1954.

On the 6th day of July 1954, the court failed to pass upon appellant’s motion to dismiss appellee’s complaint. The court entered a decree of divorce in favor of the plaintiff and against the defendant wherein the court found: “the Minnesota court having ignored a motion by plaintiff cross-defendant filed in the Minnesota court of Ramsey County on June 18, 1954 to cancel the setting of the complaint in the Minnesota court and to stay all proceedings by virtue of the Soldiers’ and Sailors’ Civil Relief Act,” although there was no evidence in the record to support such finding, and in fact, the overruling of his motion was admitted by the appellee in his replication. The court further found by its decree that the appellant was guilty of willful desertion, granted a decree of divorce to the appellee and dismissed the appellant’s cross-complaint. The court further found in the decree that the “alleged judgment” entered against the appellee in the Minnesota court “has prejudiced the rights of the plaintiff” (appellee) “because of his inability to appear to conduct his defense in the Minnesota action.” The court further found in its decree “that the issues in this cause are not moot and upon the evidence produced on the hearing of this cause the alleged Minnesota judgment is not res judicata and binding upon this court.”

In October 1955 leave was granted without objection in this court to file a copy of the opinion of the Supreme Court of the State of Minnesota filed on June 7, 1955 in the appeal taken by the appellee here from the decree of divorce granted to the appellant here, from which it appears that the appellant’s complaint was filed in the District Court of Ramsey County, Minnesota on February 25,1954, that thereafter the appellee here instituted the present action in Sangamon County, Illinois on March 3, 1954, and that on June 5, 1954, appellant’s attorney was notified by appellee’s attorney that the Illinois ease would come on for trial in Springfield, Illinois on June 29, 1954 and that appellee would be available under tbe Illinois action on that date. On June 11, 1954 the Bamsey County District Court ordered the trial of the cause there pending to be set for the 21st day of June of the same year. On June 17th the appellee here filed a second motion for a stay of proceedings under the Soldiers’ and Sailors’ Civil Belief Act, supported by the affidavit of himself and his superior officer. The question before the Minnesota Supreme Court was whether the Minnesota trial court erred in denying the motion for a stay of proceedings under Sec. 521 of the Civil Belief Act [50 USC 521]. It was there said with reference to that act: “It was not intended to vest him (appellee here) with juridical weapons of offense which he would not have possessed had he remained a civilian. It was likewise not intended that the statutory shield should be used as a screen behind which to engage in legal maneuvers born of policy or of bad faith. In short, it was intended that the serviceman who applies to the court for a stay of legal proceedings under the act must assert bona fide rights and exercise good faith.”

And further it was said: “We find no abuse of discretion in the trial court’s denial of defendant’s motion for a stay of proceedings. It is undisputed that the jurisdiction of the Minnesota court was first invoked. Defendant admitted such jurisdiction had been acquired when he interposed his answer. In ascertaining whether defendant’s military service would materially affect his ability to conduct his defense, the court could consider not only the supporting and opposing affidavits of the parties but also their conduct in the light of all the surrounding circumstances. Despite the statements in defendant’s affidavit and in that of his superior officer, to the effect that his military service prevented him from being present at the hearing in Minnesota on June 21, the court, in the exercise of a sound discretion, could draw an inference to the contrary. First we have defendant’s conduct which smacks of bad faith. Only seven days after he knew jurisdiction had been acquired in Minnesota, he started an independent action of his own in Illinois. Thereafter he applied to the Minnesota court for a stay of proceedings under the relief act without disclosing by his affidavits the commencement of the Illinois action. His conduct in applying for a stay of proceedings in his wife’s Minnesota action while he at the same time, in another jurisdiction, was prosecuting against her an independent action of his own upon the same issues can only support a conclusion that he was not acting in good faith and that he was seeking to invoke the immunities of the act as a sword for the primary purpose of putting his wife at a burdensome jurisdictional disadvantage.”

“Furthermore, the fact that despite his military service he was willing and able to commence an independent divorce action in Illinois, and to attend the hearings in connection therewith, is a basis for a justifiable inference that his military service did not materially affect his ability to conduct his defense in the Minnesota action. The speed of modern transportation leaves little difference in the time necessarily consumed in attending a hearing in Minnesota and in attending a similar hearing in Illinois.”

Again the court says: “In the light of defendant’s inconsistent conduct in seeking a stay of proceedings in Minnesota and at the same time prosecuting an independent action in Illinois, the court could consider, as corroborative of defendant’s BacT faith and as evidence of his unimpaired ability to conduct a defense in Minnesota, that he failed to disclose or indicate in any manner when his military service would permit his attendance at the hearing in Minnesota.”

The judgment of the Minnesota trial court was affirmed.

We have quoted at length from the opinion of the Minnesota Supreme Court merely for the purpose of showing that the motion for a stay of the proceedings was ruled upon by the trial court, and that the Supreme Court held that the action was not arbitrary. This case is reported as Anna P. Luckes v. Clinton E. Luckes, 71 N.W.2d 850.

By virtue of the Illinois Civil Practice Act, Sec. 40(2), Chap. 110, Par. 164, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 104.040], it is provided: “Every allegation, except allegations of damages, not explicitly denied shall be deemed to be admitted, unless the party shall state in his pleading that he has no knowledge thereof sufficient to form a belief, and shall attach an affidavit of the truth of such statement of want of knowledge, or unless the party has had no opportunity to deny.” By virtue of this section under the pleadings the appellee admitted that the Ramsey County District Court first obtained jurisdiction in this case, not only the subject matter but of himself, that his motion for a stay of proceedings was denied and the decree of divorce was duly entered by the Minnesota court on the 21st day of June 1954. Nowhere in this proceeding has the appellee ever questioned the jurisdiction of the Minnesota court to grant the divorce.

The application of appellee for a stay of proceedings in the Minnesota court, supported by the affidavits filed by him, did not have the effect of ousting that court from jurisdiction to hear the complaint. The most that can be said in appellee’s favor is that the ruling of the court denying the motion might have been erroneous from which no relief could be had except by appeal therefrom. The decree granting the divorce was a valid one, unless upon appeal, the reviewing court should find that the trial court erred in denying the motion. The Soldiers’ and Sailors’ Civil Relief Act expressly provides that the proceedings shall he stayed “unless in the opinion of the court, the ability of the plaintiff to prosecute his action or the defendant to conduct his defense is not materially affected by reason of his military service.”

The only inquiry that could be made into the validity of the Minnesota decree must be confined to jurisdictional infirmities which would render the decree void. In the absence of such infirmity the decree of that court must be given full faith and credit in each state (Article 4, Sec. 1, United States Constitution).

In the case of MacDonald v. Dexter, 234 Ill. 517 it is stated: “The main contention in this case is whether or not the questions involved in the decision of the Supreme Court of Missouri . . . are res judicata. The record before us conclusively shows that the parties, subject matter and cause of action in the Missouri litigation were identical with those in this proceeding. This being so, under the general rule the judgment of the Missouri court is conclusive on this hearing. . . . This general rule is admitted by appellant, and he also admits that the judgment or decree of a sister state is entitled to the same credit, validity and effect in every other court of the United States as it enjoys in the state where pronounced, if the court has jurisdiction of the subject matter and of the parties, and that this is the settled practice under section 1 of article 4 of the Federal Constitution.”

It appears to us not only should the trial court of Sangamon County have granted appellant’s motion and dismissed the complaint, but in view of the state of the pleadings, the trial court had no right to proceed with the trial of the cause and enter a decree in favor of the appellee. The decree of the Circuit Court of Sangamon County is reversed.

Decree reversed.


source: Caselaw Access Project

license: Public Domain

text:
    David E. Wedell, Plaintiff-Appellant, v. American Telephone & Telegraph Company, Defendant-Appellee.
    Gen. No. 10,021.
    Third District.
    February 14, 1956.
    Released for publication March 1, 1956.

      Leiter and Durfee, of Peoria, for appellant.
    Miller, Westervelt, Johnson & Thomason, of Peoria, for appellee; John D. Thomason, of Peoria, of counsel.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

Plaintiff, David E. Wedell filed his complaint in the circuit court of Tazewell County, Illinois alleging in Count I that he was the owner of certain real estate in that county and that on or about May 1, 1950, defendant, American Telephone and Telegraph Company, willfully and knowingly entered upon said real estate and set two guy wire anchors without any right to do so. Plaintiff sought actual and exemplary damages in this count in the sum of $2,500. In Count II plaintiff alleged that defendant’s agent sought permission on May 1, 1950 to cut, trim and remove certain trees on the real estate in question, representing to plaintiff that defendant had an easement from his predecessors in title for the establishment and maintenance of its utility lines, guys and anchors; that, because of this representation plaintiff signed a tree removal permit but that subsequent examination of a copy of the purported easement, furnished plaintiff by defendant, disclosed that it did not cover plaintiff’s real estate. Plaintiff further alleged that his signature to the tree removal permit was obtained by the fraudulent representation of defendant’s agent or in the alternative by false representations based upon its agent’s misunderstanding and mistake. Plaintiff asked in this count that the permit in question be declared by the court to be of no legal force and that it be ordered delivered up and cancelled. Defendant filed a motion to strike the complaint which was overruled as to Count I and sustained as to Count II. Plaintiff has appealed to this court from that part of the order of the circuit court dismissing Count II.

Defendant contends that plaintiff’s Count II is defective since it fails to allege certain elements necessary to the proper statement of a cause of action based on misrepresentation. These elements are succinctly described in Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500 at page 502, where the Supreme Court said: “The bill must show on its face, first, that the defendant has made a representation in regard to a material fact; second, that such representation is false; third, that such representation was not actually believed by defendant, on reasonable grounds, to be true; fourth, that it was made with intent that it should be acted on; fifth, that it was acted on by complainant to his damage; and sixth, that in so acting on it the complainant was ignorant of its falsity and reasonably believed it to be true.” Defendant points out that nowhere has plaintiff stated in his complaint that defendant knew or should have known that the alleged representation was false and that this omission made his complaint vulnerable to attack on defendant’s motion to strike. With this we agree. It is true in Forsyth v. Vehmeyer, 176 Ill. 359, cited by plaintiff, that the statement is made at page 365 of that opinion that: “The allegation that the representations were false and fraudulent implies that appellant knew of their falsity.” Nevertheless, it is also true, as plaintiff admits, that this statement has never been followed in subsequent cases. (Bouxsein v. First Nat. Bank of Granville, supra; Roda v. Berko, 401 Ill. 335; Malewski v. Mackiewick, 282 Ill. App. 593, 601.) The fact that the defendant knew his representation was false was an essential part of plaintiff’s cause of action and he should have clearly alleged it, if that fact existed.

Count II of plaintiff’s complaint alleged as an alternative to false representation that plaintiff’s signature was obtained to the permit upon representations made by defendant based upon misunderstanding and mistake. Plaintiff contends that this allegation is a sufficient statement of a cause of action to rescind the contract on the basis of mutual mistake. While the complaint is not a model of clarity, the alternative allegation is there and should not be ignored. The Civil Practice Act commands that pleadings be liberally construed (Ill. Rev. Stat. 1953, Chap. 110, Par. 157 [Jones Ill. Stats. Ann. 104.033]), and on a motion to strike, all inferences must be drawn in favor of the complaint. (Boyd v. Aetna Life Ins. Co., 310 Ill. App. 547.)

The Supreme Court has approved the liberal construction of pleadings in cases involving mistake, where the rights of third parties have not intervened. In Darst v. Lang, 367 Ill. 119 at page 125, it is said: “Section 33 of the Civil Practice act provides: ‘Pleadings shall be liberally construed with a view to doing substantial justice between the parties.’ While the word ‘mistake’ is not employed in the complaint, it alleges facts from which it appears that the deed does not conform to the intention and agreement of the parties. Although a pleading does not, in express terms, allege the instrument sought to be reformed was erroneously executed through mistake, nevertheless, the pleading is sufficient if it sets up facts from which such a conclusion is inevitable or fairly deducible.” (Citations.)

We believe the Circuit Court of Tazewell County erred in striking Count II since in our opinion it states a cause of action for rescission of a written instrument based upon mutual mistake of the parties thereto. Its judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    People of State of Illinois ex rel. Joseph H. Hogan et al., Plaintiffs-Appellees, v. Nelson O. Howarth, Mayor, Frank E. Shaw et al., Members of Civil Service Commission of City of Springfield, Illinois, Defendants-Appellants.
    Gen. No. 10,032.
    Third District.
    February 14, 1956.
    Released for publication March 1, 1956.

      Carl T. Meyer, City Attorney, and Ines C. Hoffmann, Corporation Counsel, both of Springfield, for defendants-appellants.
    Londrigan & Londrigan, of Springfield, for plaintiffs-appellees; Thomas B. Kennedy, of Peoria, of counsel.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

Plaintiffs, officers in the police department of the City of Springfield, Illinois, filed their second amended and supplemental petition for mandamus in the Circuit Court of Sangamon County on January 18, 1955 to compel the mayor of that city and its Civil Service Commission to carry out certain provisions of the Civil Service Act of Cities (Chap. 24½, Pars. 39 to 77a, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 23.040-23.-080(a)]). The petition alleged that this act had been adopted by the City of Springfield on April 2, 1907; that for many years no promotional examinations had been held for offices in the police department; that no lists of persons eligible for such offices had been made, all as required by the statute, and that appointments to certain offices in the department had been made by the mayor without certification of the qualifications of those appointed by the Civil Service Commission, contrary to the provisions of the statute. Defendants moved to dismiss the petition, which motion was sustained in part and overruled in part by the court, which also ordered that a writ of mandamus issue, the particulars of which writ are hereafter set forth. The defendants, mayor of the city and the members of the Civil Service Commission, have appealed to this court from that order.

The statute relating to the Civil Service of Cities, Ill. Rev. Stat. 1953, Chap. 24½, Secs. 39 to 77a provides among other things for the classification of all offices and places of employment in a city, for the examination of applications for all such offices, for promotions on the basis of ascertained merit, seniority in service and examination, and for the certification of candidates eligible for appointments to the appointing officer. The petition in this cause specifically asked that the Civil Service Commission of the City of Springfield classify the ranks in the police department below the rank of chief into captains, lieutenants, sergeants, detective-sergeants and patrolmen. It further asked that the court command the commission to certify that each of the plaintiffs was eligible for appointment to the rank in the department he then held and that the mayor be directed to appoint each plaintiff to his present rank. Finally the petition asked that the court order the commission to hold examinations for the office of detective-sergeant, sergeant, lieutenant and captain on or before July 1, 1955. The order of the court directed that each of the matters prayed for be done.

Plaintiffs have filed a motion supported by affidavits in this court to dismiss the appeal because the questions involved have become moot. They aver that the .commission has amended its rules to comply with the order of the circuit court and it has certified that each of the plaintiffs was eligible for appointment to the rank in the police department that he then held. They further aver that the mayor has complied with the order by making the appointments as directed therein. Defendants have responded and allege that there was no formal certification by the commission and that its records show that the appointments by the mayor were only temporary. All parties agree that no examinations were held by the commission prior to July 1, 1955. It further appears from the supporting affidavits that there was a change in the city administration in Springfield after the order of the circuit court was entered and that the new officers have prosecuted this appeal.

Plaintiffs insist that their motion must be sustained on the authority of Hotchkiss v. City of Calumet City, 377 Ill. 615. In that case a writ of mandamus was ordered issued against the City of Calumet City by the trial court. The city council passed a resolution that no appeal should be taken and directed the city attorney to comply with the writ. After the time for filing a notice of appeal had expired, a new resolution was passed by the council authorizing an appeal which was taken by two of the aldermen who had voted against the first resolution and by the successor to the mayor who was in office at the time the first resolution was passed. The court held that since the writ was directed against the city, it should have appealed, that appellants as officers had no appealable interest and that, in any event, expiration of the time for filing notice of appeal was fatal. We do not believe this decision is applicable here. The order of the circuit court in this cause was directed not to the City of Springfield but to certain officers thereof “and their successors in office.” Under Rule 33 of the Supreme Court, Ill. Rev. Stat. 1953, Chap. 110, Sec. 259.33 [Jones Ill. Stats. Ann. 105.33], this appeal was properly brought by such “successors” under the title used in the circuit court. And, more important, the appeal was brought in apt time. Nor does it necessarily follow that, by making the appointments ordered by the Circuit Court, the officials acquiesced in that court’s determination of the questions involved. Prior to the enactment of the Civil Practice Act, every appeal operated automatically as a supersedeas and stayed the enforcement of any judgment or decree. (People ex rel. Finn v. David, 328 Ill. 230.) A writ of error did not. (Thompson v. Davis, 297 Ill. 11.) Under the Civil Practice Act every judgment or decree is reviewed in a proceeding designated an appeal, Ill. Rev. Stat. 1953, Chap. 110, Par. 198 [Jones Ill. Stats. Ann. 104.074], which proceeding does not operate as a supersedeas unless the requirements of Section 82 of the Practice Act are met, Ill. Rev. Stat. 1953, Chap. 110, Par. 206 [Jones Ill. Stats. Ann. 104.082]. Where no supersedeas is sought, any rights a party may obtain pursuant to the enforcement of an order of a trial court are subject to redetermination if review is sought in apt time. (First Nat. Bank of Jonesboro v. Road Dist. No. 8, 389 Ill. 156.) The Supreme Court stated in the case just cited at pages 161 and 162: “A party to a suit is presumed to know of all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not be abrogated by a subsequent reversal thereof. ... A party to a decree cannot acquire any rights thereunder while the same is subject to review which he can assert after the decree is reversed, since the effect of the reversal is to abrogate the decree and leave the cause as it stood prior to the entry of the decree.” Thus it seems clear that any rights plaintiffs may have acquired by appointments made during the time an appeal could be taken are subject to redetermination by this court on review.

While it is true that no examinations were held before July 1, 1955 as required by the trial court, we do not believe that this renders the question moot. The date, while important, is not an essential part of the court’s order as it was in National Jockey Club v. Illinois Racing Commission, 364 Ill. 630, to which we have been referred. Here substantial justice can be done if examinations are held after this litigation has been terminated. The motion of plaintiffs to dismiss this appeal is therefore overruled.

Defendants in their appeal agree that mandamus is the proper remedy to compel administrative or executive officers to perform an established duty. (People ex rel. Bartlett v. Busse, 238 Ill. 593, People ex rel. Jones v. Webb, 256 Ill. 364.) They further agree that the trial court could properly have required the defendants to hold promotional examinations in the police department and to require that promotions in the department be based thereon. The circuit court in the present case, however, went further. It directed the commission to amend its rules and certify, and the mayor to appoint each member of the department to the rank he then held. This plaintiffs contend amounted to unwarranted judicial interference with matters entrusted by statute to the commission.

In People ex rel. Jones v. Webb, supra, the Supreme Court said: “. . . while a judicial officer, or one exercising discretion or authority, may be compelled to act and to proceed to the performance of his duty, he cannot be controlled in his judgment or compelled to exercise his discretion in a particular manner.” Again in Coughlin v. Chicago Park Dist., 364 Ill. 90, that court said: “When a statute vests discretion in a municipal body to determine any matter or thing, it is not the province of courts to control the exercise of that discretion. (Citations) Mandamus actions do not create duties or confer power to perform them. . . If the officer has a discretion mandamus will not issue to control his action. It may be issued to compel the exercise of discretion but not the manner of its exercise.”

We believe that the circuit court correctly ordered the Civil Service Commission of the City of Springfield to classify the ranks in the police department and to hold promotional examinations. We also believe, however, that the part of its order, providing an amendment to the rules of the commission and setting up the classifications and directing that certain individuals be certified by the commission and appointed by the mayor was improper. These are matters properly left to the discretion of the defendants, which discretion should be exercised freely and without judicial interference unless it is abused. (People ex rel. Elmore v. Allman, 382 Ill. 156.) Plaintiffs seek to justify this part of the court’s order on the theory that it is the public policy of this State to classify and appoint without examination those holding offices at the time a civil service law covering the office becomes effective but no authority has been cited in support of this statement. It is true that certain other civil service acts have provided expressly for this but we do not believe that such a provision can be read by inference into the statute before us in this case. Nor do we believe that the statute is unenforceable unless such an interpretation is adopted. Prior to the order of the trial court, the civil service status of all members of the Springfield police department was that of patrolmen. Successive examinations can be held in an orderly manner until all classifications are filled. While this will result in some delay and possible inconvenience, we believe that no other course of action is warranted. Expediency cannot justify an act otherwise improper.

The judgment of the Circuit Court of Sangamon County is reversed and the cause remanded to that court with instructions to enter judgment for plaintiffs, that a peremptory writ of mandamus issue cornmanding defendants and their successors in office to classify the ranks of the police department of the City of Springfield and to hold within a period to be determined by the court such promotional examinations as the court shall deem necessary in order to carry out the provisions of the statute as herein construed.

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


text:
    John Albert Shine, Plaintiff-Appellee, v. Wabash Railroad Company, Defendant-Appellant.
    Gen. No. 10,044.
    Third District.
    February 14, 1956.
    Released for publication March 1, 1956.

      John W. Coale, of Taylorville, for defendant-appellant.
    Hershey and Bliss, of Taylorville, and Baird, Lip-pert and Jones, of Decatnr, for plaintiff-appellee.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

The appellant, Wabash Railroad Company, has appealed from the Circuit Court of Christian County, Ulinois from a judgment entered against it in favor of John Albert Shine, the appellee here.

Appellee filed his complaint on the 3rd day of August 1953 alleging that on June 3, 1932 Walter S. Franklin and Frank C. Nicodemus, Jr. were receivers operating the Wabash Railway Company; that the defendant Wabash Railroad Company succeeded to and assumed the liabilities of said receivers arising out of the operation of the railroad; that the right of way of the railroad extended through the city of Decatur in an easterly and westerly direction and was intersected by a beaten pathway at a point between two streets, namely, University Avenue and Oakland Avenue “where a large number of persons daily crossed said tracks with the knowledge of the defendant, all within the residential limits of said city”; that the plaintiff was born on August 11, 1930 and on August 11, 1953 would be twenty-three years of age; that one A. E. Watson was at that time on June 3, 1932 operating a locomotive for the receivers pulling a train of cars on s&ld railroad in a westerly direction approaching said Oakland Avenue; that the plaintiff, while passing over said pathway along the tracks of said right of way, the defendant, Watson, and the defendant, Wabash Railroad Company (a) negligently, carelessly and improperly drove and managed said train, (b) negligently and carelessly failed to give warning of the approach of the train, (c) negligently and carelessly failed to maintain a proper and vigilant lookout, (d) operated said train at a high and dangerous rate of speed, (e) permitted the road bed and right of way to become covered and obscured from view by tall weeds, grass and bushes, and (f) failed to stop or slow the locomotive after having knowledge that the plaintiff was in danger, as a result of which carelessness and negligence the plaintiff was permanently crippled. Later in the proceedings the complaint was amended alleging that the injury was willfully and wantonly inflicted.

The defendant filed a motion to dismiss the action alleging that the suit arose out of an accident on June 3, 1932; that The Livestock National Bank of Chicago was appointed by the Probate Court of Cook County as guardian of the plaintiff and qualified as such; that afterwards the guardian petitioned the court to accept $1,000 to settle the cause of action and such court authorized such settlement, that the guardian upon receipt of the said sum of $1,000 executed a release by virtue of which the present action was barred by the prior judgment and that the claim of the plaintiff had been released and discharged. Attached to the verified motion was a copy of the release executed by The Livestock National Bank of Chicago as such guardian to the receivers of the Wabash Railway Company.

The plaintiff filed a counter-affidavit alleging that The Livestock National Bank of Chicago was not the regularly appointed and qualified guardian; that the plaintiff was at the time of the injury a resident of Macon County, Illinois and not a resident of Cook County, that the Probate Court of that county had no jurisdiction to appoint a guardian for the plaintiff and that such jurisdictional defects appeared on the petition for appointment. Attached thereto was a transcript of the record of the Superior Court of Cook County in the case entitled The Livestock National Bank of Chicago, Guardian of the Estate of John Albert Shine, a Minor, Plaintiff v. Walter S. Franklin and Frank C. Nicodemus, Jr. Receivers of the Wabash Railway Company, and also a transcript of the proceedings in the Probate Court of Cook County in the matter of the Estate of John Albert Shine.

The transcript from the Probate Court of Cook County with reference to this estate shows (first) that the petition for the appointment of a guardian for John Albert Shine was filed by his mother, Myrtle May Shine, and it recited that the minor was then living with Myrtle May Shine, who resided at 1344 Johns Avenne, Decatur, Illinois, and there were no assets in said estate except a right of action for personal injuries against the Receivers of the Wabash Railway Company, and The Stock Yards Trust and Savings Bank was appointed as such guardian and qualified as such, and (second) thereafter The Livestock National Bank of Chicago, successor to The Stock Yards Trust and Savings Bank as such guardian filed a petition to compromise the cause of action and recited “that your petitioner is now informed and is advised by its said attorney, William Wallace McCallum, that the said minor at the time of the injury and does now reside with his parents in their home at Decatur, Illinois.” The order of the Probate Court of Cook County authorizing said settlement finds: “that the injury to said minor was occasioned on the 3rd day of June, A. D. 1932 by reason of the said minor who was then twenty-two months of age, unattended, crawled out of his yard which adjoins the Wabash Railway Company right of way at Decatur, Illinois, climbed onto the right of way and tracks and was struck by one of the trains belonging to said Wabash Railway Company.”

The motion to dismiss was denied and thereafter the defendant answered. Upon the trial at the close of plaintiff’s case the charges of negligence (b) and (d) aforesaid, namely, negligently, carelessly and improperly drove and managed said train and operated said train at a high and dangerous rate of speed, were withdrawn by the plaintiff. At the close of all the evidence the defendant made a motion for directed verdict and tendered instructions to that effect which were respectively denied and refused. Thereupon the defendant, A. E. Watson, was dismissed by the plaintiff as a party defendant. The jury returned two verdicts: (1) finding the defendant guilty of negligence and assessing plaintiff’s damages at $50,000, and (2) finding the defendant not guilty as to willfulness and wantonness. Judgment was entered upon the verdicts and thereupon the defendant filed a motion for judgment notwithstanding the verdict under the negligence count and for a new trial.

We are first confronted with appellee’s contention that the compromise authorized by the Probate Court of Cook County which had issued the letters of guardianship and the release given was a bar to the action. Section 2 of the Guardian and Ward Act, being par. 2, Chap. 64, Cahill’s Ill. Rev. Stat. 1931 provides : “The County Courts in their respective counties may, when it shall appear necessary or convenient, appoint guardians of minors, inhabitants of or residents in the same county, and to such as reside out of this State and have an estate within the same, in the county where the real estate or some part thereof may lie; or if he has no real estate, then in any county where he may have personal property; . . .” The principal case relied upon by the appellant is Balsewicz v. Chicago, B. & Q. R. Co., 240 Ill. 238, where a minor was killed in a railway accident in Kewanee, Henry County, Illinois. His parents lived in Bureau County, where the minor had his home. A stranger who had no right to administer on the estate obtained letters of administration in Cook County and subsequently settled the cause of action for the death with the railway company. Later the deceased’s father took out letters of administration in the county of his residence and sued the railroad for the death. The court say at page 246: “The probate court of Cook county has general jurisdiction of the settlement of the estates of deceased persons, and, when adjudicating upon questions arising in such matters, as liberal intendments are to be made in favor of its findings as of those of courts of general jurisdiction. (Bostwick v. Skinner, 80 Ill. 147; Blair v. Sennott, 134 Ill. 78.) Residence of the deceased, at the time of his death, within the territorial jurisdiction of the court is essential to give the probate court jurisdiction to grant administration of his estate. But the probate court having general jurisdiction of the subject matter of the settlement of estates, if such court has assumed jurisdiction of a particular estate and granted administration thereof, then, in accordance with the rule in regard to the acts of courts of general jurisdiction that all intendments of law are in favor of such acts and that they are presumed to have jurisdiction to give the judgments they render until the contrary appears, such grant of administration is conclusive and not subject to attack in a collateral proceedings.” (Italics ours.) It will be noted in the Balsewicz case, supra, it is said in substance that the Probate Court having general jurisdiction of the subject matter of the settlement of estates, if such court has assumed jurisdiction of a particular estate and grants administration, then all intendments are in favor of the jurisdiction of such court until the contrary appears (italics ours), and such grant of administration is not subject to attack in a collateral proceeding.

Here it is admitted that the jurisdictional defect appears on the transcript of the record of the proceedings in the matter of the guardianship of this plaintiff in the Probate Court of Cook County. In Sharp v. Sharp, 333 Ill. 267, a minor after his majority in an original action had a deed declared void which had deprived him of a remainder interest in real estate during his minority, and the court said there at page 273: “In case of collateral attack a presumption in favor of the regularity and validity of the decree is indulged from a statement in the decree that the court had jurisdiction of the subject matter and of the parties. Nothing will be presumed, however, in favor of jurisdiction in the face of facts appearing in the mandatory record showing that it did not exist. (People v. Brewer, 15 R. C. L. 895; Old Wayne Life Ass’n v. McDonough, 204 U. S. 8.) A presumption is not evidence and cannot he treated as evidence. It cannot he weighed in the scale against evidence. (People v. Cochran, 313 Ill. 508.) Presumptions are never indulged in against established facts.”

In the case of In re Cash, 383 Ill. 409 it is said at page 429: “Where the record itself shows the evidence upon which the court acted in finding that it had jurisdiction, no presumption of jurisdiction can be indulged, and where the record shows the evidence upon which the court acted is insufficient, the finding in favor of jurisdiction is not conclusive. The presumption of jurisdiction applies only when the record is silent upon the question, (citations.)”

In the face of the transcript of record of the Probate Court of Cook County, we are not permitted to indulge in any presumption that such court ever had any jurisdiction in the matter. Such record shows affirmatively that the court did not have jurisdiction. The trial court did not err in overruling the motion to dismiss.

The appellant contends that the trial court erred in not entering judgment notwithstanding the verdict and overruling the motion for new trial. This requires a summary of the testimony in the case.

The admitted facts in the case show that the main line of the Wabash Railroad runs in an easterly and westerly direction through the city of Decatur, and this accident occurred in a residential and business area of that city where the tracks for a mile each way from the point of the accident are straight. The right of way intersects North Oakland Avenue, a north and south street, at right angles, and it is 540 feet from the west edge of North Oakland Avenue to the next north and south street to the west known as University-Avenue, which is not open across the tracks. North of the right of way between the two streets is a long block, 560 feet in length, the south half of which was owned by the Hunter-Pogue Lumber Company, on the south portion of which was situated two fairly large buildings and three other buildings north thereof, one of which was at the west end of the block next to University Avenue. North of the lumber yard was an alley 16 feet in width and immediately north of the alley were 14 lots, 40 feet in width, upon which were located residences. Immediately west of the west line of University Avenue, and north of the right of way, was a one and one-half story house in which the plaintiff and his father and mother together with some of his grandparents lived. South of the right of way and parallel thereto was the right of way of the Illinois Terminal Railroad Company upon which interurban cars were operated. Just south of the latter right of way was an east and west street known as Cerro Gordo. There was a park in Decatur, known as the “Fairview Park” located south of the tracks, together with the Garfield and Roosevelt Schools. At the corner of Cerro Gordo and Oakland south of the tracks was a grocery store. There was also a plant known as the H. Mueller Manufacturing Company south of the tracks and about five blocks east of Oakland Avenue. There was a beaten path across the tracks of the railroad between Oakland and University Avenue and over the Illinois Terminal Railroad Company’s track leading to Cerro Gordo Street, which was used by numerous adults and children going to the grocery store, the H. Mueller Manufacturing Company, the schools, the park and other areas in Decatur located south of the tracks. There is some evidence that along the north line of the right of way there was a plank over a ditch, and at the south edge of the Illinois Terminal Railroad Company there were some steps that led down to Cerro Gordo Street.

On June 3, 1932 sometime prior to 8:30 in the morning an extra freight was made up consisting of an engine, tender, three boxcars and caboose, and at about 8:30 that morning it was travelling west on the rails of the Wabash track. The train crew consisted of six members, the engineer,- fireman, front brakeman in the engine, the conductor and two other men in the caboose. The engineer, A. E. Watson, the front brakeman, John B. Kuecher, and the list man, G. A. Fowkes, were the only members of the crew surviving at the time of the trial. There is no evidence in the record that vision on that morning was in any way obscured. The train was travelling at a rate estimated by the witnesses from 15 to 25 miles an hour. As the train approached Oakland Avenue, an object was seen to come onto the track. The engineer, Watson, the front brakeman, Kuecher, and apparently the fireman, all thought it was a dog. The engineer, Watson, testified at the trial that when he got “I suppose two blocks, I looked down the track, and I saw something that looked like a dog on the track. When I got close enough, I thought it was a child, a boy. I tried to stop, set the brakes in emergency, and the engine and tender ran over the boy. Before I got to it, I saw it moving, and that’s when I set the brakes. That was when I was less than one block, about forty feet, from the object when it moved. ... It might have been a little farther or a little closer.” Further he said: “There was nothing about the traffic on Oakland Avenue to divert my attention. There was nothing to keep me from watching the child.” And he said further: “I tooted, set the brakes, emergency first, and opened the sand lever and began tooting the whistle at the child.” Again he said: “I applied the air and sand together when I was the distance described.” Again he testified: “I didn’t see the child come np through the weeds onto the track. I saw it when it was already on the track. At that time the train was about two blocks east of Oakland. I assumed it was a dog. I continued to assume it was a dog until I realized it was a child.” He also testified: “I had a front window and a side window. You can get your head clear out in the summer. Then when it is cold you keep your head in and look through the glass. I was sitting in the seat box and watching the engine.”

John B. Kuecher testified that he was riding on the left side of the engine in .front travelling west. The fireman was on the seat box. “It looked like something moved out of the weeds on the south side just like a dog and crawled out of the ditch. I judge maybe we were two or three hundred feet east of the street. I didn’t say anything. I thought it was a dog that crawled out. It looked like it was on its hands and knees crawling up to the embankment to the track-rail. As we approached the street, the engineer was sounding his crossing signal with the bell.” Again he said: “As near as I can figure out he shut the engine off more or less as he was sounding the crossing signal, and when the fireman, Jimmy Layton said, ‘My God, a baby!’, I thought it was a dog. Then the engineer just started trying to stop the engine every way possible and also sounding like a stock signal to frighten it off the track. The caboose when it stopped was either on Oakland or a little west of Oakland, it could have been further.” Again he said: “I first saw the child when it came out of the weeds. I didn’t know what it was.” Again he said: “After this object came out of the weeds it just sort of crawled up and never did straighten up but turned around.” Again he said: “It was my intention to go through the window and reach that running board and go forward on the engine. I didn’t get started before we stopped.” Again he said: “When I first saw this object the engineer was whistling for Oakland.” Fowkes, the list man, was riding in the caboose, and testified that: “When the train stopped the child was close to the rear trucks of the first ear on the north side right inside the tracks.” The record shows that the engineer at the time of applying the emergency brake at the same time applied the sanding mechanism, by virtue of which sand is spread upon the rail so as to assist in more rapidly stopping the train. The first sand on the rail was found just a few feet south of the point where blood appeared upon the rail.

There is some evidence in the record that the child was run over 180 feet west of the west edge of the Oakland Street crossing, although there was also some evidence that it was at a place even farther west thereof.

In the case of Joy, Adm’r v. Chicago, B. & Q. R. Co., 263 Ill. 465, the railroad engineer saw an object across the rail ahead of him in time to have stopped his train. He believed it to be a bundle of papers. Too late to avoid hitting him the engineer realized the object was a man and thereupon made all reasonable effort to stop the train. The accident happened two miles beyond the city limits far away from any crossing. There was no evidence in the case that the place where the accident happened had ever been used as a pathway. The court held that the railroad owed no duty to the plaintiff to maintain a lookout where they had no reason to anticipate his presence and further stated at page 468: “It has been held by this court, and almost universally, that the law casts no duty upon a railroad company to keep a lookout for trespassers on its track in the open country, remote from public crossings, cities and towns. This is conceded and requires no citation of authority. Exceptions to this general rule are (1) places where the railroad company has permitted the public to travel along or over its track for a considerable period of time and a considerable number of people have availed themselves of such use, and (2) where the railroad runs through populous portions of a city, where people frequently go upon or pass over the track with knowledge of the company or for such a length of time that the company is chargeable with knowledge. Neither of the exceptions is involved in this case.” While the above in our opinion clearly states the applicable law, the exceptions defined therein were not necessary to the opinion.

In Bernier, Adm’r v. Illinois Cent. R. Co., 296 Ill. 464, it is said at page 471: “WTiere a railroad company has permitted the public to travel over its track for a considerable period of time and a considerable number .of people have availed themselves of such use, the railroad company must keep a lookout for persons on its track.”

In McDaniels v. Terminal R. Ass’n of St. Louis, 302 Ill. App. 332, the plaintiff was injured when struck by a timber thrown from defendant’s viaduct or bridge. At the time of his injury plaintiff was upon a well-worn pathway upon the right of way of the Wabash Railroad Company at best as a permissible user. In examining the verdict for the plaintiff the court states at page 344: “It has been clearly indicated by the Supreme Court of this State that, even as relates to a track of a railroad company (where some courts have emphasized that public interest in cheap, safe, and rapid transit should be weighed in considering the rights of trespassers or licensees on the tracks), where the railroad company has permitted the public to travel over its track for a considerable period of time and a considerable number of people have availed themselves of such use, the railroad company must keep a lookout for persons on its track.”

It would be extending this opinion to lengths not warranted by quoting additional authorities upon this subject.

One of the charges of negligence that went to the jury and upon which it returned its verdict was that the company carelessly and negligently failed to maintain a proper lookout. It was a question for the jury to determine whether the employees of the defendant, knowing that an object had come onto the track at least two blocks ahead of them at a place where adults and children were accustomed to be and walk upon the right of way and across the tracks, maintained a proper lookout. They had a right to determine what credence should be given to the testimony of the engineer and of the other witnesses in the case. They had a right to determine whether or not the engineer in the exercise of reasonable care should have recognized the object to be a child before he was forty feet more or less from it. Should we attempt to say that the engineer or other employees of the defendant did or did not maintain a proper lookout would be usurping the function of the jury.

We cannot say on this record that the jury was not justified in arriving at the conclusion it made in this case. In this block from Oakland Avenue to University Avenue, the latter street not crossing the tracks, the evidence shows that people and children were accustomed to use the tracks as a pathway, and the duty of the train crew and particularly the engineer was to be governed accordingly. The latter’s obligation to maintain an adequate and sufficient lookout ahead under the circumstances is not to be measured by what he himself said as to recognizing the object to be a child until he was forty feet more or less from it. We cannot say from this record that the court erred in overruling the motion for judgment notwithstanding the verdict nor ih holding the verdict was not contrary to the manifest weight of the evidence.

It is asserted in the brief for the appellant that the verdict is excessive and the result of sympathy for the plaintiff or prejudice against the railroad. While the verdict in this case is large, the injuries suffered were very severe. On the oral argument counsel for the defendant stated that it might well be that the plaintiff would have been better off had one foot been amputated at the time. The evidence shows on the right foot only the large toe and second toe are present. The third, fourth and fifth toes are completely missing and part of the middle of the foot is missing. Technically the doctor testified the metatarsal arch was missing, that there was considerable scarring, and the bottom part of the foot had more moisture than probably would appear in the normal foot. On the left foot the toes are all present but the heel is partly missing and there is a great deal of scar formation. One leg is one and one-half inches shorter than the other. There is no question but what these injuries were all due to this accident. The circumference of the calf of the right leg is approximately one inch less than on the left. The left foot is crooked. The plaintiff was wearing appliances on his feet at the time of the trial that were helpful for his locomotion. The one on the right had been built up considerably due to the fact that there was a shortening of the right lower extremity. The appliances were standard, approved medical appliances and the standard treatment for that type of injury. The doctor who examined the plaintiff further testified, “The left foot, I believe, will serve him pretty well the rest of his life. An amputation is a probability of the right foot in years to come.”

Under these circumstances, which are not disputed, we do not believe the verdict is excessive.

The appellant also urges that the court improperly refused its instruction marked No. 1. It will suffice to say that this instruction was based solely upon the theory that the plaintiff was a trespasser and the defendant owed no duty to him except to exercise ordinary care to. prevent his injury after the engineer be.came aware of the danger to which the plaintiff was exposed. It entirely ignores the duty which the defendant owed to persons using the railroad track as a passageway for such a length of time that the company knew or should have known of such use, and it ignores the duty of the railroad under such circumstances. Moreover the instruction directed a verdict and should not have been given.

We find no error in this record and the judgment of the trial court below is hereby affirmed.

Judgment affirmed.


author: JUDGE CARROLL

text:
    Mabel Mary Doss, Executor of Last Will and Testament of John Doss, Deceased, Plaintiff-Appellant, v. Chester E. Kirk, and Velma M. Kirk, Defendants-Appellees.
    Gen. No. 10,022.
    Third District.
    February 14, 1956.
    Released for publication March 1, 1956.

      Dwight H. Doss, of Monticello, for appellant.
    Edie & Corbett, of Monticello, for appellees; Burl A. Edie, of Monticello, of connsel.
   JUDGE CARROLL

delivered the opinion of the court.

' In this action, John Doss, a real estate broker, sought to recover a commission which he claimed to have earned by procuring a purchaser for certain real estate of the defendants.

The Court heard the cause and at the close of plaintiff’s case entered judgment for defendants on their motion.

During the pendency of the cause in this Court, John Doss, the original plaintiff, departed this life testate, and Mabel Mary Doss, Executor of his Last Will and Testament has been substituted as plaintiff.

On this appeal plaintiff contends that the evidence made a prima facie case and that the Trial Court erred in allowing defendants’ motion.

The motion to find for the defendants involves solely the sufficiency of the evidence to sustain a finding . against the defendants and consequently raises only a question of law. Allowance of the motion did not constitute an adjudication of the issues of fact. Anderson v. Board of Education of School Dist. No. 91, 390 Ill.412.

Defendants’ position appears to be that plaintiff failed to establish the existence of a contract of employment between the parties and that if any such contract was proven then plaintiff’s evidence shows the same to have been abandoned or revoked.

The facts are that decedent was engaged in the real estate business in Monticello, Piatt County; that the defendants, who are husband and wife, knew him to be so engaged; that on May 8, 1954, defendants owned and occupied a certain residential property in Monticello; that on said date while decedent was showing defendants other residence property which they were interested in purchasing, defendant, Velma Kirk, in the presence of her husband, said to decedent “have you got anybody interested in our house?”; that later in a conversation with decedent the defendant, Chester E. Kirk, said to him “if you have got somebody who will give $16,000 let them look at it”; that a few days later decedent with the knowledge and consent of defendants showed the Kirk property to L. D. Dalton, a prospective purchaser; that on May 16, 1954, Dalton made an offer to decedent of $12,500 for the property; that decedent submitted such offer to the defendants; that the defendant Chester E. Kirk thereupon said to decedent “I would not take that, just take it off your list, just take it off your list right away”; that decedent told Dalton that defendants had refused to consider his offer; that defendants then negotiated directly with Dalton and on May 22, 1954 sold the property to him for $15,000; and that no one other than decedent and defendants had any contacts with Dalton in the negotiations concerning the sale of the property.

It is the settled law that to create the relationship of agency between a broker and the owner of property, a contract of employment is necessary. However, no particular form is required in such contract and ordinarily all that is necessary is that the broker act with the consent of his principal whether such consent is given by written instrument, orally, or by implication from the conduct of the parties. I.L.P. Brokers Sec. 22; Greenwald v. Marcus, 3 Ill.App.2d 495. Purgett v. Weinrank, 219 Ill. App. 28.

The evidence in this case would seem to leave little doubt as to the fact that a contract of employment existed between plaintiff’s testate and the defendants. The evidence shows that defendants, knowing the decedent to be a real estate broker initiated a series of events which lead to the controversy involved herein when they told decedent that he could show their house to prospective purchasers and their price was $16,000. The subsequent conduct of the parties indicates no misunderstanding concerning the fact that defendants had placed their house with plaintiff for sale at the price named. Decedent, with the knowledge of defendants did exhibit the house to Dalton, whose interest in purchasing the property is evidenced by his offer which decedent conveyed to defendants. Further convincing proof of the existing contract of employment between the parties is found in the testimony of decedent that defendant Chester E. Kirk told him to take the property “off his list.” Such statement from the defendants can only be interpreted to mean that they acknowledged the fact that they had listed their property for sale with the decedent as their agent. If decedent was not their agent, as defendants argue, there would have been no need for defendants to request that he remove the property from his list. We think this evidence must be regarded as tending to prove that decedent acted with the consent of the defendants.

The only other question remaining for consideration is whether plaintiff was the procuring cause of the sale made by the defendants to Dalton. The evidence on that issue is that decedent produced Dalton as a prospective purchaser; that defendants came into contact with Dalton on May 13 when he was being shown through the house by plaintiff; that after making the offer of $12,500 which was refused, Dalton and the defendants continued negotiations which ended in the sale of the property to Dalton; that the sale contract between defendants and Dalton was executed six days after the defendants refused Dalton’s first offer.

Where a real estate broker shows that he has been instrumental in bringing parties together and the transaction is consummated, he is to be regarded as the procuring cause of the sale and entitled to his commission. Crilly v. Young, 152 Ill. App. 72; Camp v. Hollis, 332 Ill. App. 60. It is sufficient if the sale is effected through the efforts of the broker or through information derived from him. Hafner v. Herron, 165 Ill. 242; Hawkins v. Taylor, 186 Ill. App. 355. Application of the above rules to the evidence in the instant case would seem to compel the conclusion that plaintiff adequately met the burden resting upon him of introducing proof showing that the sale of defendants’ property resulted from decedent’s efforts in bringing the defendants and the purchaser together. This proof shows that decedent produced Dalton who was interested in purchasing the defendants’ property and any information which defendants had concerning such purchaser came from the decedent. Since the evidence further shows a sale to have been made by defendants to Dalton within a few days after decedent communicated his offer to defendants, there can be no question concerning the willingness or ability of Dalton to purchase the property. Under the particular facts of this case the test is whether the sale of defendants’ property as consummated resulted from decedent’s efforts in bringing the purchaser and the defendants together. We think plaintiff’s evidence met such test and accordingly plaintiff made ont a prima facie case.

The judgment of the Circuit Court is reversed and the cause remanded with directions to overrule defendants’ motion.

Reversed and remanded with directions.


author: PRESIDING JUSTICE DOVE

text:
    Florence A. Rodgers, Plaintiff-Appellant, v. Reserve Life Insurance Company, Defendant-Appellee.
    Gen. No. 10,887.
    Second District.
    February 15, 1956.
    Released for publication March 5, 1956.

      Victor and Ghent, of Rockford, for appellant.
    Foltz, Haye & Keegan, of Rockford, for defendantappellee.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

Appellee, Reserve Life Insurance Company, on September 24, 1952, issued its policy of insurance, by the provisions of which it agreed to pay to Florence A. Rodgers, mother of James 0. Rodgers, the sum of $1,000 in the event James 0. Rodgers lost his life resulting directly and independently of all other causes from accidental bodily injury sustained while the policy was in effect. On September 25, 1954, while the policy was in full force and effect, James 0. Rodgers, twenty-one years of age, accompanied by Patricia Allen, eighteen years of age, and Judy Gorman, seventeen years of age, was driving a 1950 Chevrolet convertible automobile with a 1954 motor. The car in which they were riding left the pavement and was overturned and James O. Rodgers was killed.

On January 14,1955, Florence A. Rodgers, the beneficiary, filed the instant complaint to recover under the provisions of the policy. The defendant answered, admitting the issuance of the policy and that it was in effect on September 25, 1954, and admitted the death of James 0. Rodgers on that day, but denied that he died from accidental bodily injuries and set up as an affirmative defense that Rodgers drove his automobile on a country road at night at a speed of 100 miles per hour while approaching a curve in disregard of the protests and warnings from the passengers in his car and from these allegations the pleader concluded that Rodgers’ death resulted from his wilful and wanton driving of an automobile under circumstances which exhibited a reckless disregard for his own safety. The plaintiff replied, denying the allegations of the affirmative defense and the issues made bv the pleadings were submitted to the court, without a jury, resulting in a finding and judgment for the defendant and the plaintiff appeals.

There is no conflict in the evidence. The defendant, by its insurance policy, agreed to pay the plaintiff $1,000 in the event her son, James 0. Eodgers, lost his life, resulting directly and independently of all other causes, from accidental bodily injury. On the evening of September 25, 1954, James 0. Eodgers attended a party with a group of young people near a forest preserve. About eleven o’clock that evening he left the party in his automobile accompanied by Lee Johnson, Patricia Allen, and Judy Gorman. Johnson was in the back seat, but his presence was not revealed to Patricia Allen or Judy Gorman, who occupied the front seat with Eodgers, until Eodgers stopped the car in front of the home of Johnson in Eockford. Eodgers got out of the car there and let Johnson out. He, Eodgers, then reentered the car, and he and his two guests intended to return to the party. While Eodgers, upon the return trip, was driving along Kishwaukee Street near an intersection his car hit the rear end of a Cadillac car driven by a lady whose name does not appear in the record. Eodgers got out of his car, and the lady driving the Cadillac left her car, and some words were exchanged. Eodgers returned to his car and drove rapidly in an easterly direction on Corlett Eoad, which is a twenty-foot paved highway. As he approached a curve in the road, Patricia Allen testified that she heard Judy Gorman tell Eodgers to watch out as there was a curve ahead; that she, Patricia Allen, looked at the speedometer and it registered 100 miles per hour; that she then told Eodgers that he was going too fast to go around a curve and Eodgers answered, saying “Yes” or “Yup.” A few seconds thereafter the car left the paved portion of the highway at the beginning of the curve and travelled approximately 400 feet on the east shoulder as the road curved to the right in a southerly direction. The car hit a steel guard rail, turned over on its top and skidded another 50 feet before it came to rest. Kodgers was thrown from the car, and his dead body was found under the guard rail.

The sole question presented by this record is whether, under the detailed facts, the death of the insured was an accident within the meaning of provisions of the policy.

The terms “accident” and “accidental” as used in insurance policies covering accidental death mean “happening by chance; unexpectedly taking place; not according to the usual course of things or not as expected.” (45 C. J. S., Insurance, sec. 753, p. 777.) The author of the Article on Insurance in 29 Am. Jur. sec. 931, pp. 706, 707, states that the words “accident” and “accidental” have never acquired any technical significance in law and, when used in an insurance contract, are to be construed and considered according to the ordinary understanding and common usage and speech of people generally; that the courts are practically agreed that these words mean that which happens by chance or fortuitously, without intention or design and which is unexpected, unusual and unforeseen. “The definition,” says this authority, “that has usually been adopted by the courts is that an accident is an event that takes place without one’s foresight or expectation — an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected.”

Counsel for appellee insists that the evidence discloses that the insured drove his automobile with wilful disregard of his own safety and that his death resulted from his own deliberate misconduct and, therefore, there can be no recovery, citing Cory v. Woodmen Accident Company, 333 Ill. 175, which was an action upon an accident insurance policy. The facts in the Cory case disclosed that Cory and another person were engaged in an argument in front of Cory’s home. Cory advanced toward the other person and was told by the other person, who pulled a revolver from his-pocket, that if he, Cory, came closer he would shoot him. Cory continued to advance and was shot and killed. In holding that there could be no recovery the court stated that a person with ordinary intelligence and prudence would have heeded the warning and would reasonably expect and foresee that if he continued to advance the other person might shoot and cause serious injury, the court quoted from Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 So. 852, viz., (p. 181): “An accident may be said to be an unforeseen or unexpected event of which the insured’s own misconduct is not the natural and proximate cause, and hence a result ordinarily and naturally flowing from the conduct of the insured cannot be said to be accidental even when he may not have foreseen the consequence, and the happening of an event, to be termed an accident, must not only be unforeseen, hnt without the design and aid of the insured.”

Thompson v. Prudential Ins. Co. of America, 84 Ga. App. 214, 66 S.E.2d 119, also cited by appellee, was an action by the mother of Bobert L. Thompson to recover double indemnity provided in two policies of insurance issued by the defendant company upon the life of her son in the event the insured should come to his death as the result, directly and independently of all other causes, of bodily injuries effected solely through external, violent, and accidental means. It appeared from the evidence that the insured was a boy sixteen years of age, and on the evening of August 6, 1949, obtained a revolver and inquired of another boy friend whether he wished to play “Bussian Boulette.” His friend answered in the affirmative, and then the insured removed all the cartridges from the cylinder of the revolver except one, spun the cylinder around, and then handed the revolver to his friend, who said: “Let’s put it up. Don’t play with it.” Robert, the insured, then said: “All right, I will do it first,” and he put the end of the barrel to his head and fired it and was killed. In affirming a judgment rendered upon a directed verdict in favor of the defendant, the court said: “Where one places a'loaded pistol to his head and voluntarily pulls the trigger, knowing the gun to be loaded and lethal, nothing more appearing, it is unquestionably no accident that this action results in his injury or death, nor can his death or injury be said to have been effected by accidental means. So, too, where one engages in a game of Russian Roulette in which all but one of the cartridges are removed from the cylinder of a revolver, the cylinder is spun, the revolver is placed by the participant to his head, and the trigger is voluntarily pulled without ascertaining the position of the cartridge in the chamber in its relation to the firing mechanism, and it occurs that when the trigger is pulled the gun fires and kills or injures the participant, his death or injury is no less intentional than had the gun been fully loaded and his death or injury cannot be said to have been the result of accident or effected by accidental means. In such a case, it will be presumed that the participant intended that he should be killed or injured should fate stop the cartridge in the spinning cylinder in firing position. One engaging in such a bizarre pass-time with a lethal weapon, if he be compos mentis, knows that he is courting death or severe injury, and will be held to have intended such obvious, and well known results, if he is killed or injured. The insured, so far as the evidence shows, was not ‘play-acting’ or engaging in a pseudo game of Russian Roulette. The cartridges were not blanks. He placed a ‘live’ cartridge in the cylinder of the revolver and made no effort to ascertain the position in which the cartridge stopped in relation to the firing mechanism, before pulling the trigger. Such reckless abandon and exposure to a known, and obvious danger cannot be said to have been accidental, nor can it be said that his death was effected by accidental means. The most that can be said for such a participant is that he hoped the cartridge would not stop in the firing position when his turn to pull the trigger came. Under these circumstances we think the plaintiff failed to establish that the insured’s death was effected by accidental means within the meaning of that term in the policies of insurance and it follows that the trial court did not err in directing a verdict for the defendant, nor in overruling the motion for a new trial.”

In Kalahan v. Prudential Ins. Co. of America, 84 N.Y.S.2d 433, also cited by appellee, it appeared that the insured entered an apartment occupied by his wife and children who were living separate and apart from him. Upon being admitted to the apartment by the son, who acted in accordance with his mother’s instructions, the insured slapped his wife and grabbed her and placed his hands around her neck. The son, sixteen-years-old, appeared with a revolver and ordered his father to leave his mother alone and the father then lunged toward his son who shot and killed the father. In holding that the death of the father was not accidental within the meaning of a policy which provided for double indemnity in case of accidental death, the court quoted from Piotrowski v. Prudential Ins. Co., 141 Misc. 172, 252 N. Y. Supp. 313, 316 where it is said: “A person intends the natural and probable consequences of his acts and, accordingly, if the consequences are natural and probable, he will not be heard to say that he did not intend them. In this view any occurrence which naturally and probably results from the situation in which a person voluntarily places himself under such circumstances that he can foresee, or will be presumed to foresee, the result, must be held to be expected by him and is not, therefore, in any proper sense an accident.” The court then concluded, “Here insured voluntarily put himself in the position of an agressor. He obtained entrance to his wife’s apartment at an unseemly hour; there he at once embarked upon a course of violence in attacking her. The son, following a most human and natural instinct, sought to protect his mother with the threat of a revolver. Insured then directed the course of his violence against the son, by gesture and action, and in so doing was shot to death. Every step in the affair leading to the tragedy- — ‘the quality and purpose of the transaction as a whole’ — determines that the death resulted ‘naturally and probably’ from the position in which insured voluntarily placed himself. The death was not accidental within the meaning of the policy.”

We have examined the other cases relied upon by counsel for appellee to sustain judgment of the lower court, but the facts in none of them are analagous to the facts in the instant case.

In Yates v. Bankers Life and Casualty Co., 415 Ill. 16, cited by appellant, it appeared that the insured, a person suffering a physical disability, entered into the living room of one Lloyd Richardson with his hands extended and open, carrying no weapon and making* no threats or gestures. However, he did not answer when Richardson asked him twice what he wanted, but merely walked toward Richardson. Without any intention of hurting the insured in any way, Richardson pushed him by the shoulder out of the front door. It appeared that the front door opened onto a porch which was some six inches lower than the floor of the living room, and there was a single wooden step from the front porch to the cement sidewalk. Yates was later found lying on his back on the cement sidewalk and died as a result of a skull fracture. The Supreme Court reversed the judgment of the Appellate Court and affirmed the judgment of the circuit court and held that the death of the insured was caused by accidental means, notwithstanding the fact that the insured voluntarily set in motion the chain of events that resulted in his death. In the course of its opinion the court cited United States Mut. Acc. Ass’n v. Barry, 131 U. S. 100, and then went on to say (p. 22): “As in the Barry case, the injuries and death of Yates were caused by something unforeseen and unexpected occurring in the course of an intentional act, i.e. the backward fall from the living room to the lower level of the porch and down the step onto the cement sidewalk where he hit the back of his head and fractured his skull. Therefore, under the concept of Accidental means’ adopted and reiterated by the Illinois Court, the jury could properly have found that the death of the insured, Oliver Yates, was caused by accidental means and that plaintiff, as beneficiary of the policy, issued by defendant upon Yates’ life, was entitled to recover thereunder.” In the instant case the death of Bodgers was caused by something unforeseen and unexpected which occurred in the course of an intentional act, i.e., the car leaving the pavement and hitting the guard rail resulting in Bodgers’ death. Under the authority of the Yates case an insured, who intentionally sets into motion a series of events that result in his death or through his own negligence contributes to his death, can still have died of accidental injury if the consequences of his action are unforeseen and unexpected.

In the instant case the insured was proceeding rapidly but safely along a straight, level, twenty-foot paved highway free of other traffic. The road curved. He misjudged or did not know the angle of the curve and was unable to keep his automobile on the paved portion of the highway and his car hit a protecting guard rail and he was killed. It does not follow that his death was not accidental or that his death must have been foreseen or expected. There is no evidence from which one would be justified in concluding that the insured expected that he could not negotiate this curve or that his fast driving would result in his own death and injury to his guest passengers. The fair intendment of his conduct is that what did happen was unforeseen and unexpected by him and his death, under the circumstances, was accidental within the accepted definition of that term and therefore within the provisions of the policy. One may voluntarily and knowingly, with an appreciation of the attending risk, expose himself to danger and be killed, yet his death be accidental. Where a pedestrian or a driver of a vehicle is killed or injured as a result of his miscalculation of distance, speed or his own capabilities, in an attempt to pass in front of an oncoming train, he is still the victim of an accident, even though he knew the train was approaching, failed to heed warning signals and knowingly exposed himself to danger, under circumstances which would have deterred a careful person from attempting to cross, but can it be said that under such circumstances such death or injuries were not accidental?

In this connection it might be noted that the policy issued by appellee did not contain what is sometimes designated as an “exposure-to-danger” provision. Such a clause expressly excepts from the coverage of the policy injury or death if caused by “voluntary exposure to unnecessary danger” or “unnecessary exposure to danger” or “exposure to unnecessary danger” or by “wilful and wanton exposure” or by exposure to “obvious risk of injury or obvious danger” or by exposure to “unnecessary danger, hazard or perilous adventure” (45 C. J. S. Title; Insurance, sec. 774, p. 805). The author of this Article on Insurance in C. J. S. then states (sec. 774, p. 805): “Where, however, the policy does not contain an exposure-to-danger provision, the element of danger is both unimportant and immaterial unless insured intended to produce the very result which occurred.” The author of the Article on Insurance in 29 Am. Jur., sec. 944, p. 716, says that voluntary exposure to danger by the holder of an accident insurance policy will not defeat recovery for an injury caused by accidental means, where such an exposure is not an exception in the policy and the insured has no intention of producing the injury received. Both articles cite Richards v. Standard Accident Ins. Co., 58 Utah 622, 200 P. 1017, 17 A.L.R. 1183.

In the Richards case, supra, it appeared that the insured died of a sunstroke and the company defended upon the ground that his death was not the result of an accident within the meaning of the provisions of the policy sued on, but his death was the natural result of his own acts. In affirming a judgment for the plaintiff and after citing and reviewing many cases, the court stated that the authorities generally hold that death or injury do not result from accident or accidental means within the terms of an accident insurance policy where the injury or death is the natural and probable result of the insured’s voluntary act unaccompanied by anything unforeseen except the death or injury. The court then said that a well-established exception to that rule is where death or injury is not the natural and probable result of a voluntary and intentional act by the insured or something unforeseen or unexpected or unusual occurs in the act which precedes the injury, then the injury is the result of accidental means and stated that the leading case on the subject is United States Mut. Acc. Ass’n v. Barry, 131 U. S. 100, and quoted therefrom as follows: “The term ‘accident’ was used in the policy in its ordinary popular sense, as meaning, ‘happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected,’ that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or expected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.” The court then said that the insured might have exercised greater care and that he and his companions were possibly negligent, but held that neither negligence or “voluntary exposure to danger” was a defense which the company could invoke inasmuch as the policy contained no such provision. The court then said: “Unless the deceased intended to produce the very result which occurred, the element of danger is both unimportant and immaterial, because, as said in Interstate Business Men’s Accident Association v. Lester, 168 C.C.A. 309, 257 Fed. 225, ‘Persons protected by accident insurance may incur consciously hazards which may result in their injury or death, without forfeiting the insurance, unless the policy expressly excepts the hazards.’ ” See also Fidelity and Casualty Company v. Sittig, 181 Ill. 111, wherein the court affirmed a judgment in favor of the plaintiff upon an accident policy which contained a clause to the effect that the insurance did not cover voluntary exposure to unnecessary danger. The facts in that case disclosed that the insured was a travelling salesman and was attempting to board a suburban Blinois Central train. The evidence disclosed that he had reached the neighborhood of the steps of the station platform just after the train started and had thrown his valise on the platform of the car, seized the railing and attempted to climb on the car, but either lost his hold or fell or was knocked off after being carried some distance and was killed.

In the instant case, Rodgers consciously incurred a known hazard in attempting to negotiate the curve in the highway at the high rate of speed he was travelling. He clearly failed to exercise judgment, was careless, reckless, perhaps foolhardy, but it does not follow that he intended to destroy himself or imperil the lives of his guest passengers. His death was not the rational, natural and probable result of his intentional act and, upon the facts as they appear in this record, plaintiff is entitled to recover.

The judgment of the circuit court of Winnebago County is reversed and this cause is remanded with directions to render judgment for the plaintiff.

Reversed and remanded with directions.

EOVALDI and CROW, JJ., concur.


author: PRESIDING JUSTICE FRIEND.

text:
    Edward Zimbon, Appellant, v. 1400 Lake Shore Drive Corporation, Louis G. Taupin, Jessie Jackson and Elmer A. Claar & Co., Appellees.
    Gen. No. 46,690.
    First District, First Division.
    January 9, 1956.
    Rehearing denied February 1, 1956.
    Released for publication February 27, 1956.
    Bernard B. Brody, for appellant; Samuel L. Kadell, of counsel; McCarthy and Levin, for appellees.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


author: JUDGE NIEMEYER.

text:
    Peter C. Forney, Appellee, v. Michael La Susa and Anna La Susa, Appellants.
    Gen. No. 46,693.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.
    Smith & Munson, and Simon Herr, for appellants; Benjamin Meister, for appellee.
   Opinion by

JUDGE NIEMEYER.

Not to be published in full.


author: JUDGE BURKE.

text:
    Lee Roy Kahn, a Minor, by Julius F. Kahn, His Father and Next Friend, Appellee, v. James Burton Company, Jacob A. Kreiger and Bessie Kreiger, and Malkov Lumber Company, Inc., Defendants. Malkov Lumber Company, Inc., Appellant, James Burton Company, Coparty-Appellant.
    Gen. No. 46,067.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.
    Hinshaw, Culbertson, Moelmann & Hoban, for appellant; Oswell G. Treadway, of counsel; Louis G. Davidson, for appellee.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    James Geraghty, Appellee, v. Burr Oak Lanes, Inc., Appellant.
    Gen. No. 46,160.
    First District, First Division.
    January 9, 1956.
    Rehearing denied February 27, 1956.
    Released for publication February 27, 1956.
    Meyers & Matthias, for appellant; Donald L. Thompson, Erwin H. Wright, and Philip G. Meyers, of counsel; F. J. Gariepy, and C. E. Mallon, for appellees.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. John V. Garrity, Plaintiff in Error.
    Gen. No. 46,735.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.

      McGuire, Lane & Casey, for plaintiff in error; Martin J. McGuire, and Thomas R. Casey, Jr., of counsel; John Gutkneeht, State’s Attorney of Cook county, for defendant in error; Irwin D. Block, First Assistant State’s Attorney, John T. Gallagher, Rudolph L. Janega, William L. Carlin, Francis X. Riley, and Irving Bronstein, Assistant State’s Attorneys, of counsel.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    City of Chicago, Appellee, v. John V. Garrity, Appellant.
    Gen. No. 46,765.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.
    McGuire, Lane & Casey, for appellant; Martin J. McGuire, and Thomas R. Casey, Jr., of counsel; John C. Melaniphy, Acting Corporation Counsel of City of Chicago, for appellee; L. Louis Karton, Head of Appeals and Review Division, and Harry H. Pollack, Assistant Corporation Counsel, of counsel.
   Opinion by

JUDGE BURKE.

Not to be published in full.


author: JUDGE FEINBERG.

text:
    Lewis A. Cahn, Appellant, v. Edgewater Hospital, Inc., M. S. Mazel and Charles R. Morrow, as Trustee, Appellees.
    Gen. No. 46,716.
    First District, Third Division.
    January 11, 1956.
    Released for publication February 29, 1956.
    Cohen & Berger, for appellant; Rothbart & Rosenfield, for Edgewater Hospital, Inc., and M. S. Mazel, appellees; Kirkland, Fleming, Green, Martin and Ellis, for Charles R. Morrow, as trustee, appellee; Vernon M. Welsh, J. M. Rosenfield, and Joseph Stein, of counsel.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


author: JUDGE KILEY.

text:
    Clarence McCoy, d/b/a C. McCoy Furniture, Appellee, v. Samuel H. Smith, Defendant Below, A. E. Gordon, d/b/a A. E. Gordon & Sons, Garnishee Below, Appellant.
    Gen. No. 46,695.
    First District, Third Division.
    January 11, 1956.
    Released for publication February 29, 1956.
    James D. Murphy, for appellant; Albin Dommermuth, of counsel; Julius L. Kabaker, for appellee.
   Opinion by

JUDGE KILEY.

Not to he published in full.


text:
    Fruehauf Trailer Company, Appellant, v. Universal Truck Leasing Corporation, Ben Leventhal, Empire Truck Leasing Co., Fred Gary, Salon Trucking Co., Inc., and Joseph H. Salon, Defendants, Salon Trucking Co., Inc., and Joseph H. Salon, Appellees.
    Gen. No. 46,770.
    First District, Third Division.
    February 1, 1956.
    Released for publication. February 24, 1956.
    Maurice M. Loman, for plaintiff-appellant; Jerome Berkson, for defendants-appellees.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


author: JUSTICE SCHEINEMAN.

text:
    Hermine Staikoff, Plaintiff-Appellee, v. Illinois Terminal Railroad Company, Defendant-Appellant.
    Term No. 56-F-6.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.
    Kramer, Campbell, Costello & Wieehert, for defendant-appellant; Maurice E. Bone, for plaintiff-appellee.
   Opinion by

JUSTICE SCHEINEMAN.

Not to be published in full.


text:
    W. T. Bryant, Plaintiff-Appellee, v. August Recklein, Defendant-Appellant.
    Term No. 55-0-3.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      Baker, Kagy & Wagner, for appellant; Bernard H. Bertrand, of counsel; Louis Beasley, for appellee.
   Opinion by

JUSTICE SCHEINEMAN.

Not to be published in full.


author: PRESIDING JUSTICE DOVE.

text:
    Albert F. Schultz, Administrator of Estate of Wayne E. Schultz, Deceased, Plaintiff-Appellee, v. Henry Stephan, Administrator of Estate of Henry Stephan, Jr., Deceased, Kenosha Auto Transport Corporation, Robert E. Livingston, Defendants, Henry Stephan, Administrator of Estate of Henry Stephan, Jr., Deceased, Defendant-Appellant.
    Gen. No. 10,870.
    Second District.
    February 15, 1956.
    Released for publication March 5, 1956.
    Hinshaw, Culbertson, Moelmann & Hoban, and Snyder, Clarke & Dalziel, for defendant-appellant; Perry L. Fuller, of counsel; Winston, Strawn, Black & Towner, for plaintiff-appellee; George B. Christensen, Frank B. Gilmer, Gerard E. Grashom, and Edward J. Wendrow, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE CROW.

text:
    Harry L. Dixon, and Sabina E. Dixon, Plaintiffs-Appellees, v. Montgomery Ward & Co., Inc., Defendant-Appellant.
    Gen. No. 10,868.
    Second District.
    February 15, 1956.
    Released for publication March 5, 1956.
    Allen, Matthews, Jordan & Dean, for appellant; Everett Jordan, of counsel; William C. O’Brien, for appellees; Wilson D. Burnell, Donald L. Puckett, and Joseph H. Barnett, of counsel.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: JUDGE LEWE.

text:
    Florence J. Victor, Administratrix of Estate of Harry Philip Victor, Deceased, Appellee, v. William L. Dehmlow, Administrator of Estate of William A. Dehmlow, Deceased, and William L. Dehmlow, Appellants.
    Gen. No. 44,270.
    First District, Third Division.
    May 9, 1951.
    Released for publication July 9, 1951.
    Hinshaw & Culbertson, for appellants; Oswell G. Treadway, of counsel; Royal W. Irwin, and James A. Dooley, for appellee.
   Opinion by

JUDGE LEWE.

Not to be published in full.


text:
    Retailer’s Finance Company, Inc., Appellant, v. Marguerite Conry and Adkins Transfer Company, Appellees.
    Gen. No. 45,011.
    First District, Third Division.
    June 29, 1951.
    Released for publication July 30, 1951.
    Magnus Rosenberger and Nathan W. Rubenstein, for appellant; Charles D. Snewind, of counsel; Samuel M. Kane, for certain appellee; M. J. Myer and Edward E. Kane, of counsel.
   Opinion by

JUDGE LEWE.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Louie Cosper, Plaintiff in Error.
    Gen. No. 45,222.
    First District, Third Division.
    June 29, 1951.
    Released for publication July 30, 1951.
    Herbert M. Wetzel, for plaintiff in error; Demetri M. Spiro and L. B. Weir, of counsel; John S. Boyle, State’s Attorney of Cook County, for defendant in error; John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and William J. McGah, Assistant State’s Attorneys, of counsel.
   Opinion by

JUDGE LEWE.

Not to be published in full.