text:
    Anchor Finance Corporation, Appellee, v. Bert M. Miller and Paul Joseph, Jr., Copartners, Doing Business as Jet Motor Sales, Defendants. On Appeal of Paul Joseph, Jr., Appellant.
    Gen. No. 46,722.
    First District, First Division.
    January 9, 1956.
    Rehearing denied February 1, 1956.
    Released for publication February 27, 1956.

      David B. Perley, and William E. Siegel, both of Chicago, for appellant.
    Leonard M. Cohen, and Melvin Cohen, both of Chicago, for appellee.
   PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

On July 10, 1953 plaintiff filed its verified complaint for judgment against the defendants Bert M. Miller and Paul Joseph, Jr., copartners doing business as Jet Motor Sales, with a malice provision, predicated on four trust receipts involving the financing of certain automobiles. On October 21, 1953 pluries summons was filed with the clerk of the court certifying substituted service on one of the defendants as follows: “I certify that I served the within writ on the Defendant, Paul Joseph, Jr., (d/b/a Jet Motor Sales) by leaving a copy of the same at his usual place of abode in my County, with Sister Joseph, a person of his family of the age of ten years or upwards and informing such person of the contents thereof on the 17th day of October, 1953; and also by sending a copy of the within writ in a sealed envelope with postage fully prepaid addressed to the said Defendant at such usual place of abode.”

Thereafter, on November 19, 1954 the defendant partner Joseph filed his special appearance, and three days later he filed his verified motion to qnash the writ, alleging that no service, personal or substituted, was ever made on him; and that he had no sister by the name “Joseph,” nor did any sister ever reside with him at his place of abode on the date mentioned in the return.

On December 22, 1954 the court entered an order denying the motion to quash the writ and granted leave to the sheriff to amend his return by inserting “Shireen Benjamin” in place of “Joseph.” On January 14, 1955 a default judgment was entered against both defendants in the sum of $5860, with special findings only as to defendant Paul Joseph, Jr., of malice as the gist of the action. Paul Joseph, Jr., appeals from the judgment with a count in malice, and also from the order denying his motion to quash the writ for lack of proper service.

The appealing defendant contends that the court had no jurisdiction of his person by reason of the alleged defective substituted service of process, and accordingly all orders and judgments entered against him are a nullity. Prom evidence adduced upon the hearing of defendant’s motion to quash the writ it appears that Shireen Benjamin, defendant’s sister, had owned a four-apartment building at 6976-78 Ridge Avenue, Chicago, Illinois, since June 1953. The defendant Joseph resided at 6976 Ridge Avenue, while his sister resided in the basement at 6978 Ridge Avenue. She received her mail at 6976 Ridge Avenue, and used that as her address whenever she wrote or signed papers. She frequently ate her meals at the Joseph apartment, where she admits receiving a copy of the summons from the deputy sheriff. Her husband Goliath Benjamin testified that he resided at 6978 Ridge Avenue hut received his mail at 6976 Ridge Avenue. In August 1953 Shireen Benjamin, together with her husband, signed a recognizance, giving their address as 6976 Ridge Avenne.

Charles J. Bnlncos, who served the writ, testified that the names “Joseph” and “Benjamin” appeared on the doorbell at 6976 Ridge Avenne; that when he rang the bell, defendant’s sister, Shireen Benjamin, answered and advised him that defendant was not at home, but that she was his sister; that he told her he had “a summons for him. Please see that he gets it.” Bnlncos then made his return and mailed a copy of the writ to 6976 Ridge Avenue. Defendant admits that he received a copy of the summons by mail.

The gravamen of defendant’s argument is that service of summons on defendant’s sister Shireen Benjamin did not constitute service of summons upon “some person of the family” as required by statute, and he cites three Illinois cases in support of this contention, in each of which substituted service was held defective because it was not made at the usual place of abode of defendant. No Illinois cases are cited holding that substituted service effected by leaving a copy with a near relative at defendant’s usual place of abode is defective.

The legal meaning of family was set forth in the early case of Norwegian Old People’s Home Society v. Wilson, 176 Ill. 94. The issue there presented was whether the married daughter of a deceased policeman was a member of his “immediate family” so as to entitle her to share in benefits accruing from a benevolent fund. The court found that a family included: (1) the whole body of persons who form one household, thus embracing servants; (2) parents with their children, whether they dwell together or not; and (3) the whole group of persons closely related by blood. It held that the general scope and purview of the statute had to be considered in each case and then concluded that the married daughter was a member of the immediate family of the deceased father. See also Liberty Nat. Bank of Chicago v. Zimmerman, 333 Ill. App. 94, a forcible entry and detainer suit which construed the word “family,” as used in an apartment lease, to include the tenant’s daughter, her husband and their child, thus entitling them to move into the apartment with the tenant.

The meaning of the word “family” as used in section 13.2 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, sec. 13.2 [Jones Ill. Stats. Ann. 104.-013(2)]) must be construed in relation to the general purpose of the provision for substituted service, which is stated in 72 C. J. S. Process § 48 (p. 1060) to be as follows: “Such statutes presuppose that such a relation of confidence exists between the person with whom the copy is left and defendant that notice will reach defendant; they assume that such person will deliver the process or copy to defendant or in some way give him notice thereof.” Among other arguments, defendant asserts that the deputy sheriff failed to inform defendant’s sister of the contents of the summons, and concludes that the service was therefore defective. However, the return recites that Bulucos informed defendant’s sister of the contents of the paper left with her, and he testified that he told her it was a summons and directed that it be given to her brother. The only evidence presented to the contrary was the uncorroborated statement of the sister, Shireen Benjamin, that the sheriff handed her the summons without explanation, but the trial judge who had an opportunity to observe the demeanor of the witnesses, determined the issues in favor of plaintiff, and we perceive no valid reason for disturbing his finding.

The admitted facts are that a copy of summons was left with a sister of defendant at his residence and that he received a copy from the sheriff by mail. The family lived in adjoining apartments in the same building, and Shireen Benjamin spent considerable time in the apartment at 6976 Ridge Avenue, where defendant resided and where the summons was served. Accordingly, we conclude that the order of the trial judge overruling defendant’s motion to quash was supported by substantial evidence and should not be disturbed; also, that the judgment entered against Paul Joseph, Jr., should be and accordingly is affirmed.

Order and judgment affirmed.

BURKE and NIEMEYER, JJ., concur.


source: Caselaw Access Project

author: JUDGE NIEMEYER

license: Public Domain

text:
    Cereal Byproducts Company, Appellant, v. Roy Hall, J. Leonard Penny, et al., Appellees.
    Gen. No. 46,622.
    First District, First Division.
    January 9, 1956.
    Rehearing denied February 1, 1956.
    Released for publication February 27, 1956.
    Norman, Engelhardt, Zimmerman & Prince, of Chicago, for appellant; Harold W. Norman, and William R. Engelhardt, both of Chicago, of counsel.

      Lord, Bissell & Brook, of Chicago, for appellees; Gordon R. Close, and Richard E. Mneller, both of Chicago, of counsel.
   JUDGE NIEMEYER

delivered the opinion of the court.

Plaintiff appeals from a judgment for defendants entered after trial by the court without a jury in its action for damages resulting from the alleged negligence of defendants, certified public accountants, in auditing the books of plaintiff for the year 1947.

From the year 1932 through 1949 the accounting firm in which the defendants are the present partners made an annual audit of plaintiff’s books and prepared its federal income tax returns. From 1936 the defendant Penny was in charge of these audits. From March 1941 to and including February 1949 R. C. Zastrow was bookkeeper for plaintiff, in charge of the book accounts and supervising the writing of checks. The audit for 1948 was delayed by Zastrow, who said that he was not ready. Penny contacted Becker, president of plaintiff, about this delay between February 15th and 20th, 1949 and arrangements were made to start the audit in a couple of days. February 24th Becker was informed by the bank that plaintiff’s account was overdrawn. He inquired of Zastrow, who said nothing. He thereupon contacted Penny, who sent a field man to plaintiff’s office on Saturday, February 26th. The following Monday the auditors informed Becker there was some defalcation or embezzlement. Zastrow did not appear at plaintiff’s offices after Saturday, and within a week committed suicide.

Defendants completed the audit, finding embezzlement and defalcations by Zastrow of $15,414.32 in 1947, $66,645.05 in 1948, and $13,620.21 in 1949 by means of checks eventually shown as payable and paid to Zastrow either by changing the name of the payee on the check to his name or by influencing an authorized signing officer to sign blank checks in which his name was subsequently inserted. The chief assistant to Zastrow paid plaintiff $7,252.60, which she said she had supposed was horse race winnings but then felt belonged to plaintiff. Plaintiff also recovered $19,500 from its bank on account of payments by it on checks payable to Zastrow. In 1950 plaintiff was advised that a proper audit of its books for 1947 would have revealed Zastrow’s defalcations. It then brought suit for $66,333.03, its net loss after giving credit for recoveries hereinabove mentioned and for defendants’ counterclaim for compensation for services to plaintiff in 1950.

Plaintiff charged breach of contract and negligence and carelessness in the audit. Defendant admitted the amount of defalcations hereinbefore stated, denied any negligence or carelessness in its audits, charged plaintiff with contributory negligence, and asserted affirmatively that plaintiff’s settlement with its bank released the defendants of all liability and that the payment by plaintiff to defendant of $1,600 for their services in 1949 constituted an accord and satisfaction of plaintiff’s claim. In stating the reasons for its decision the trial court found that plaintiff did not prove negligence of the defendant, and rejected the defense of contributory negligence. No reference was made to the affirmative defenses.

Defendants were employed to make an annual audit of plaintiff’s books and to prepare its federal income tax returns. The report of the audit for the year 1947 entitled “Accountants’ Detailed Report for the Tear Ended December 31, 1947” described the work performed by defendants, and stated:

“We have examined the balance sheet of Cereal Byproducts Company as of December 31, 1947, and the statements of income and surplus for the year then ended, have reviewed the system of internal control and the accounting procedures of the company and, without making a detailed audit of the transactions, have examined or tested accounting records of the company and other supporting evidence, by methods and to the extent we deemed appropriate. Our examination was made in accordance with generally accepted auditing standards and included all procedures which we considered necessary in the circumstances.
“In our opinion, the accompanying balance sheet and related statements of income and surplus present fairly the position of Cereal Byproducts Company at December 31, 1947, and the results of its operations for the year, in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding year.”

Five certified public accountants, including the defendant Penny, testified as experts — three for plaintiff and two for defendants. As stated in plaintiff’s brief, the experts generally agreed that the objective of the ordinary examination in most cases is not to disclose defalcations but to render an opinion on the financial statements as audited by the accountant through following accepted auditing procedures. The experts further agreed that the actual steps to be taken in verifying the accuracy of the books and financial statements, etc., examined, rests to a great extent in the judgment of the man doing the work. They differ materially as to the particular steps that should be taken. This difference in the testimony of the experts produced an uncertainty in the mind of the trial court, stated by him as follows:

“I think I am left pretty much without anything as a yardstick to absolutely measure what was done or failed to be done in this case amounting to negligence.”

Accordingly he found for defendant on the question of negligence.

Although the discovery of defalcations is not in most cases the objective of an ordinary examination of books, it is necessary that certain examinations or checks be made which would show defalcations before the auditor could render an opinion on the balance sheets and financial statements as showing the worth of the firm whose books were examined. Defendants’ experts agree that a proper audit requires an examination of sufficient evidentiary matter to afford a reasonable basis for the accountant’s action. Unless a special audit is being made, as was done here after discovering that the bank account was overdrawn, and Zastrow’s suicide, a detailed examination and check is not made or contemplated by the parties.

Plaintiff specifies six particulars in which it contends that defendant failed to exercise the care and diligence required for a proper audit of the kind it undertook to make for plaintiff. We shall refer to only one of these specifications — the conduct of defendants in the confirmation of accounts receivable, as to which the evidence is without contradiction. In the audits made by defendants for the year 1943 and following years the auditors sent out letters asking confirmation of certain brokerage accounts receivable. For the years 1943 to 1946, both inclusive, Becker asked Penny not to confirm certain accounts receivable specified by him. In making the audit for 1947, 29 accounts totaling $28,964 were listed as not to be confirmed. Becker had no knowledge of this list. Penny testified that the accounts were indicated by Zastrow; that as far as he, Penny, knew, Becker did not participate in that decision. Defendants sent bank confirmations to 31 accounts in that year, and if they had not received the instructions from Zastrow they would have sent confirmation to some of those 29 accounts. Their practice was to pick out accounts which had balances of significance in relation to the particular company’s business and confirm some accounts with large balances and a few with small balances as a test. Zastrow’s list includes not less than ten accounts which the subsequent audit showed were overstated on the hooks on December 31,1947.

Defendants seek to justify their acceptance of Zastrow’s list of accounts not to be confirmed on two grounds: That Zastrow was present during the audits for 1944 and 1945 when Becker gave his list of accounts not to be confirmed, and, that Zastrow had become a stockholder of plaintiff. Neither ground is tenable. The mere presence of Zastrow when Becker gave a list of accounts not to be confirmed, implied no authority in Zastrow to give a list of his own making several years later. Zastrow’s acquisition of stock gave him no authority in the direction and management of the business, as defendants must have known. Defendants were employed to audit the books kept by and under the direction of Zastrow. Acceptance of a list of accounts not to be confirmed prepared by him without the knowledge of Becker or other officer was inexcusable negligence for which defendants are liable. State Street Trust Co. v. Ernst, 278 N. Y. 104; Maryland Casualty Co. v. Cook, 35 F. Supp. 160 (1940).

The trial court did not err in rejecting the defense of contributory negligence. No fact or circumstance is cited contributing in the slightest degree to the negligence of defendants in making the audit. United States Cold Storage Co. v. Central Mfg. Dist. Bank, 343 Ill. 503, 519; National Surety Corp. v. Lybrand, 9 N.Y.S.2d 554, 256 App. Div. 226.

As the trial court failed to make a finding as to the affirmative defenses asserted by defendants, we cannot consider these defenses.

The judgment is reversed and the cause remanded with directions to find the defendants guilty of negligence in making the audit of 1947, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

FRIEND, P. J. and BURKE, J., concur.


text:
    John Latronica for Use of Adele Ruth De Vries, a Minor, and Joann P. Michener, a Minor, Appellant, v. Royal Indemnity Company, Appellee.
    Gen. No. 46,652.
    First District, First Division.
    January 9, 1956.
    Rehearing denied February 1, 1956.
    Released for publication February 27, 1956.

      Lawlor & Walsh, of Chicago, for appellant; James Maher, and Dudley R. Sullivan, both of Chicago, of counsel.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago, for appellee; Joseph W. Griffin, of Chicago, of counsel.
   JUDGE NIEMEYER

delivered the opinion of the court.

Plaintiff appeals from a judgment for the defendant garnishee, the insurer of the nominal plaintiff, hereinafter sometimes referred to as the insured, in an automobile liability policy covering a 1942 Ford for the calendar year commencing May 19,1942. On March 30, 1943 the beneficial plaintiffs, minors, were struck by a 1935 Ford driven by the insured. Suits oil their behalf were brought and consolidated for trial. Judgments for $6,800 and $6,000 for the respective plaintiffs were entered against the insured. These judgments were not paid or satisfied and the instant garnishment suit was instituted. The insurer contends that its policy does not cover the 1935 Ford, and that the insured breached the provisions of the policy requiring cooperation with the insurer.

The insured “acquired the 1935 automobile for $45 on March 19,1943 and owned it on March 30,1943, the date of the accident. The policy contained a standard provision for automatic insurance for newly acquired automobiles, the terms of which need not be stated because the parties agree that the policy did not apply to the 1935 Ford if insured owned the 1938 Ford when he acquired the 1935 automobile. The court found that the insured was the owner of the 1938 Ford from the date of its purchase and delivery to him on January 23, 1943 to the date he sold it, March 27, 1943.

Latronica, the insured, was the only witness testifying as to the ownership of the 1938 Ford. He was called as a witness for the beneficial plaintiffs and examined as to the ownership of the 1942 and 1935 Fords. On cross-examination by defendant he was examined as to the ownership and possession of a 1934 Ford and the 1938 Ford. He testified that he bought the 1934 Ford as a “junker” in March 1943; the motor was burned out; he pulled it from the seller’s home to his gas station; it was never repaired or operated; he bought it for the rubber — the tires; after transferring the tires he sold it to a junk dealer March 17, 1943 for five or ten dollars; he gave the junk dealer the certificate of title he got when he bought it.

Latronica further testified that he did not buy a 1938 Ford; in January or February 1943 his son-in-law James Collachia bought the 1938 Ford involved herein in Gilman, Illinois; the car was brought to Chicago and kept in one of two garages at 9517 South Moody Street; the premises at that time consisted of a story-and-a-half home and two garages and were owned by Latronica’s wife; Collachia lived in the upstairs flat; it was war time and, because under the regulations tires could not be transferred from one automobile to another unless both cars were owned by the same person, Latronica applied to the Secretary of State for registration of the title to the 1938 Ford in his own name; after the transfer of the tires to the 1938 car he transferred the car on March 27,1943 to his son-in-law; he did not own the 1938 Ford when he applied for registration of title to it; he never operated it; his son-in-law did.

The original certificate of title for the 1938 Ford, received in evidence, shows title in Delmar E. Short of Gilman, Illinois, and assignment by him to James Collachia, 9517 South Moody Street, Oak Lawn, Illinois.

Latronica was further cross-examined as to two exhibits dated March 31, 1943, signed by him. A representative of the insurer who in 1943 had been in its employ for eleven years and was then assistant manager of the south and west side, investigator and adjuster, testified that he wrote the exhibits in Latronica’s presence; that the phrasing of the exhibits was his— he composed them. Latronica testified that statements in the exhibits such as “I bought the 1938 Ford . . . and had it ten days, about, and sold it to my son-in-law,” and “I bought the 1938 Ford . . . because it was a bargain at $100 cash and the son-in-law could not swing it and I handled it for him,” were not true.

This resume of Latronica’s testimony shows that he made statements out of court inconsistent with his testimony — in his unsworn statements to defendant and in his sworn application to the Secretary of State. He testified that these statements were not true. As the statements out of court are not evidence of the matters stated (People v. Scott, 296 Ill. 268, 274; Johnson v. N. K. Fairbank Co., 156 Ill. App. 381), there is nothing in the record to show that he testified falsely.

The statements of Latronica out of court are not admissions of fact binding on the beneficial plaintiffs. Generally, declarations of the nominal party are not admissible against the real party. 20 Am. Jur., Evidence, sec. 591. Neither privity of interest nor special circumstances bring the' statements of Latronica within the exceptions to the rule. In Robinson & Co. v. Marr, 206 Ill. App. 12 (opinion No. 22039, abst.), a garnishment case, this court said:

“It is further contended that under the law the judgment creditor has no greater rights against the garnishees than the defendant, and that as the defendant Marr testified in a deposition that the money in the hands of the garnishees did not belong to him, but that it was the property of other persons, this would have estopped Marr to assert any claim against the garnishees, and for this reason would also estop the plaintiff. The record discloses that this testimony of Marr was excluded by the court, and it is manifest that the ruling was- proper.”

The exhibits in evidence, in the making of which Latronica had no part, corroborate him. The original certificate of title for the 1938 Ford shows title in Short and its assignment to Collachia. In the absence of evidence tending to show a transfer of title by Collachia, the title is presumed to remain in him. 5 Am. Jur., Attachment and Garnishment, sec. 1033. The procurement of a certificate of title by Latronica on his admitted false claim of ownership and subsequent transfer to Collachia, cannot affect the original title of Collachia received from Short. A like question arose in Fleckenstein v. Citizens’ Mut. Automobile Ins. Co., 326 Mich. 591, in which plaintiff, the insured under an automobile liability policy covering a Studebaker car, brought suit on the policy after judgment against him for injuries resulting from his operation of a Chevrolet car which he was using temporarily while the Studebaker was out of normal use because of a damaged or broken motor. Under such circumstances the policy provided for coverage of a substituted car not owned by the insured. Plaintiff’s son had purchased the Chevrolet during his minority, the certificate of title being issued in the father’s name. After the son became of age the father assigned the title to the son but the transfer was not made on the official register. The son was inducted into the armed services and during his absence the father procured licenses in his own name for driving the car on the highways while the Studebaker could not be used by misrepresenting himself as the owner of the car. The court held, there being no showing of the retransfer of title from the son to the father, the latter was not the owner of the Chevrolet, was not estopped to deny his ownership and the insurer was liable on the policy.

There being no evidence of a transfer to Latronica of the title of Collachia received from Short, Latronica never owned the 1938 Ford and defendant is liable on its policy unless Latronica, the insured, breached the provision of the policy that “The insured shall co-operate with the Company, and upon the Company’s request shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits.” The purpose of this provision, as stated in Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137, is to enable the insurer to make a proper defense to damage claims against the insured or, as said in 5 Am. Jur., Automobiles, sec. 545, to protect the insurer against collusion between the insured and persons claiming damages for alleged torts. The language of the co-operation clause requires co-operation of the insured only in matters of defense and settlement of claims as requested by defendant. As to these matters the evidence shows only that within a few hours after the accident Latronica gave to defendant a signed statement of the facts of the occurrence. It is not in evidence. There is no charge that it is inaccurate or incomplete or that Latronica at any time failed to comply with any request of defendant to do any of the things enumerated in the co-operation clause.

Defendant contends that if Latronica did not own the 1938 Ford the statements of the purchase and sale of the car in the exhibits dated March 31,1943 are false and misleading and therefore a breach of the cooperation clause. This contention ignores the distinction between matters of defense and settlement of damage claims, in which the insurer and insured should have a common interest, and matters of coverage of the policy, in which the interests of the insurer and the insured are adverse and as to which they deal at arm’s length. The statements relied on by defendant, if false, are misrepresentations of facts material to the coverage of the policy but wholly without relevancy to the question of liability of the insured to the persons injured by the operation of the 1935 Ford. This fact distinguishes the case of Preferred Acc. Ins. Co. of N. Y. v. Grasso, 186 F.2d 987, where the ownership of the automobile involved in the occurrence and whether the employee driving the car was engaged in the business of the insured were material on the question of the coverage of the policy as well as on the liability of the insured for the acts of his employee.

There is no evidence of any breach of the co-operation clause.

The judgment is reversed and the cause remanded with directions to enter judgment against the defendant garnishee.

Reversed and remanded with directions.

FRIEND, P. J. and BURKE, J., concur.


text:
    Robert Leon Willey and Wilma Jean Willey, Appellees, v. Richard J. Lawton, Appellant.
    Gen. No. 46,662.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.
    Jacobson & Gilley, of Chicago, for appellant.
    William F. Nissen, of Chicago, for appellees.
   JUDGE NIEMEYER

delivered the opinion of the court.

Defendant appeals from an order denying bis motion to vacate a judgment by confession for $1,099.32, including attorney’s fees, entered on a note for $2,000 bearing on its face tbe notation “Settlement of Child Support Payments.”

Tbe petition to vacate is uncontradicted and must be taken as true. It recites tbat tbe plaintiffs are tbe former wife of defendant and ber second busband; tbat defendant was divorced from bis former wife in 1945 in Chicago Heights, Illinois, tbe decree directing tbe defendant to pay $17 per week for tbe support of two minor children of tbe parties; tbat sometime in 1950 defendant was in arrears in payments for child support approximately $200, and tbe attorney for tbe plaintiffs threatened to have defendant jailed for nonsupport and suggested tbat an adoption of tbe children could be arranged by plaintiffs for $5,000; tbat plaintiffs stated they would adopt tbe children for $5,000 so tbat defendant would not be required to pay future child support ; tbat tbe consideration and inducement for tbe execution of tbe note was tbat tbe plaintiffs would adopt tbe children, and no other consideration whatsoever; tbat tbe petitioner paid $3,000 in cash in November 1950 and executed tbe note for $2,000 involved herein and thereafter made payments of approximately $1,400; tbat tbe note and tbe consideration on which it is based are founded upon an illegal contract which is void and against public policy and should not be enforced by tbe court.

Tbe effect of tbe adoption is to change tbe custody of tbe children from tbe natural mother under tbe divorce decree to tbe joint custody of tbe natural, mother and ber second busband, followed by tbe sole custody by tbe survivor of them, to deprive the defendant of all legal rights respecting tbe children and free them of tbe obligation of maintenance of and obedience to defendant. Adoption Act, Ill. Rev. Stats. 1955, chap. 4, sec. 5 — 1 [Jones Ill. Stats. Ann. 19.012(17)]. Except for the ultimate liability of defendant to support the children (Dwyer v. Dwyer, 366 Ill. 630) and the children’s right to inherit from and through defendant (In re Estate of Tilliski, 390 Ill. 273), all legal and natural relations between defendant and the children were terminated.

The sole justification for this disruption of the family relation and the termination of the natural association between parent and child, is the welfare of the child. It is not enough that the adopting parents are willing to assume the obligations to the child imposed by the adoption act and that the parents are willing that the child be adopted. The court must find that the welfare of the child will be promoted by the change in its status to an adopted child. The agreement between the natural parent and adopting parents whereby the latter for a consideration payable to them agree to adopt a child or children of the natural parent, is contrary to the public policy and therefore void. We have been referred to no case where the validity of a contract similar to the one before us was determined. In Hooks v. Bridgewater, Ill Tex. 122, where the father delivered his child to a third person on a promise of the latter to leave his property to the child, the court said:

“The law should not encourage the relinquishment by parents of their children and the renunciation of a sacred relation imposed by nature merely for the children’s enrichment by placing the seal of validity upon a contract in which a parent in effect barters his child away for a property return. It is more concerned in fostering and maintaining that relation and guarding its valuable and wholesome influences than in promoting the child’s financial prosperity. Let it be once held that a parent’s contract of this kind is valid and may be enforced, and every parent will be free to transfer his children to any one willing to pay them well for the bargain. We are unwilling to subscribe to such a doctrine. It tends to tbe destruction of one of tbe finest relations of human life. . . .”

Plaintiffs object that this statement was obiter dicta. If so, it states a principle which is sound and should prevail. The same principle was stated in Parks v. Parks, 209 Ky. 127, 132, where the court said, “Infant children are neither parties nor privies nor the subject of-barter.”

In principle the present contract is similar to contracts to get or permit a divorce. Authorities need not be cited to establish the fact that such contracts are against public policy and void.

Because the promise of defendant to pay plaintiffs to adopt his children is against public policy, a note given to evidence the obligation to pay a part of that consideration is void. The court erred in refusing to vacate the judgment.

The judgment is reversed and the cause remanded with directions to allow the petition and vacate the judgment.

Reversed and remanded with directions.

FRIEND, P. J. and BURKE, J., concur.


text:
    In the Matter of Estate of Adeline O’Donnell, Deceased. Adeline J. Strow, Executor of Will of Adeline O’Donnell, Deceased, Appellee, v. Dennis W. Shanahan, Claimant Below, Appellant.
    Gen. No. 46,684.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.

      Jacob Stagman, of Cbicago, for appellant; Erwin H. Greenberg, of Cbicago, of connsel.
    Campbell, Clitbero and Fiscber, of Cbicago, for appellee.
   JUDGE NIEMEYER

delivered the opinion of the court.

Claimant, the sole beneficiary of a testamentary trust of which Adeline O’Donnell, deceased (hereinafter called decedent) was the trustee, appeals from an order of the Circuit Court, entered on appeal from the Probate Court, disallowing his amended and alternative claim against the estate of decedent for $6,037.-84 — interest on the trust fund at 5 per cent per annum because decedent as executrix of the trustor, and as trustee, did not segregate the funds belonging to claimant or belonging to the estate of the trustor from her personal funds, and as trustee did not keep an account of her administration of the trust and did not invest the trust fund as directed by the will of trustor and according to law, or, for $8,949.37 — interest at 10 per cent per annum as provided in section 462, chapter 3, Administration of Estates (Ill. Rev. Stats. 1953 [Jones Ill. Stats. Ann. 110.559]).

By will admitted to probate March 10, 1930 the trustor devised and bequeathed to decedent (his daughter and the aunt of claimant) as trustee the sum of $5,000, or its equivalent in marketable bonds, in trust for the use and benefit of claimant, his grandson, and directed her to keep the trust fund properly invested; to apply the income therefrom, so far as necessary, for claimant’s liberal maintenance and education; to add to the principal any excess of the income not so used and to pay the principal and accumulation to claimant when he arrived at the age of 21 years, discharged of all trust.

Decedent qualified as executrix and administered the estate. She closed it December 5, 1940. She accepted the trusteeship and during claimant’s minority expended at least $500 for his use and benefit. When he became of age June 14, 1946 she paid $4,500 to claimant’s mother for his use and benefit. Decedent died testate December 8, 1952. Her will was admitted to probate.

Claimant filed a claim against tbe estate for $6,383— interest chargeable against decedent for delay in transferring tbe trust fund to herself as trustee, and interest which tbe trust fund could and should have earned by proper investment. Tbe Probate Court denied tbe claim. He appealed. March 23, 1954 be filed in tbe Circuit Court a transcript of tbe record of tbe Probate Court and a jury demand. April 20,1954, on motion of tbe executrix (hereinafter called defendant), tbe demand for a jury trial was denied and tbe jury demand stricken. June 1,1954, by leave of court, claimant filed tbe amended and alternative claim, as hereinbefore stated. Defendant answered. A trial was bad before tbe court without a jury. Tbe court found that tbe amended claim was barred by laches and ordered that, therefore, tbe claim be dismissed at claimant’s costs.

On appeal claimant contends that bis claim is an action at law and not a suit in equity; that be is entitled to a trial by jury; that laches is not a defense to an action at law, and that laches was not proved. Defendant’s position is that tbe claim is a suit in equity; that laches is a bar to tbe claim, and tbe finding of the court as to laches is supported by tbe evidence; that claimant waived bis right to a jury trial by failure to renew bis demand for a jury after amending bis claim.

Claimant’s right to a trial by jury and defendant’s right to assert a defense of laches depend upon tbe character of tbe claim filed — whether it is a legal or an equitable claim. Tbe proceedings provided by statute for tbe presentation and allowance of claims against tbe estates of decedents are in no proper sense suits or proceedings at law or in chancery, but purely statutory proceedings providing for tbe prompt and summary presentation, allowance and classification of all just claims against such estates. Grier v. Cable, 159 Ill. 29. Notwithstanding tbe difference in tbe proceedings when a claim is filed in the Probate Conrt and when it is prosecuted in another court against a living person or his administrator or executor, the character of the claim is the same. Thus, a right of action at law against a person while living, remains an action of the same nature against his legal representatives, whether prosecuted in the Circuit Court against the administrator or executor or filed in the Probate Court against the estate. Starrett v. Brosseau, 208 Ill. 408, 412. Although the Probate Court is without general chancery-jurisdiction, it has equitable jurisdiction in the settlement and allowance of equitable claims. To avoid the delay, expense and embarrassment in the settlement of estates by requiring a resort in the first place to a count of equity, it will proceed in a case of an equitable character as though a bill in chancery had been filed and will hear the evidence, investigate the claim and apply equitable rules in determining the judgment. Trego v. Estate of Cunningham, 267 Ill. 367.

An examination of the claim filed and the evidence introduced to support it shows that the gravamen of the claim is the failure of decedent, as trustee, to invest the trust fund as directed by the trustor. The relief sought is a money judgment- — -interest on the trust fund. This is a proper measure of damages for the breach charged. Mathewson v. Davis, 191 Ill. 391, 398; Story’s Eq. Jur. (14th ed.) sec. 1686. This is an action at law, which claimant could have brought against decedent in her lifetime, or against her executrix.

The fact that decedent was a trustee does not convert the claim into a suit in equity. Courts of equity do not have exclusive jurisdiction of all actions against a trustee for breach of trust. 54 Am. Jur., Trusts, secs. 566, 576. In Wertheimer v. Glanz, 277 Ill. App. 389, and Sampson v. Glanz, 302 Ill. App. 624, this court affirmed judgments at law against the trustee for breach of trust in releasing part of the mortgaged property. In Lennartz v. Estate of Peter Popp, 118 Ill. App. 31, p. 35, the court upheld a claim for damages filed against the estate of a deceased trustee for a similar breach of trust, and said, “Where the cestui que trust elects to hold the trustee personally responsible, or where that is his only remedy, as in the case here, and the trustee is dead, his position as to the estate of the trustee is that of a simple contract creditor with a naked claim for damages arising out of the breach of the trust. Lathrop v. Bampton, 31 Cal. 23.” This case was cited in Wallace v. Malooly, 4 Ill.2d 86, where the court said (p. 98), “It is a well settled principle in equity that where a trustee commits a breach of trust and becomes liable to his cestui que trust, the latter has the option of following the property into the hands of the purchaser if he takes it with notice, or to recover the amount he has been injured. (Piff v. Berresheim, 405 Ill. 617, Lennartz v. Estate of Popp, 118 Ill. App. 31.)”

The claim being one cognizable in a court of law, claimant was entitled to a trial by jury. Defendant insists that he waived this right by not renewing his demand after he filed the amended claim. No authorities are cited or reasons stated for this contention. The amended claim, like the original claim, was for interest on the trust fund because of decedent’s failure to invest it, and an action at law. There was no waiver of the right to a jury.

The claim being a legal and not an equitable claim, defendant cannot invoke the defense of laches. In Freymark v. Handke, 415 Ill. 360, p. 366, in speaking of laches, the court said, “It has been defined to be such a neglect or omission to assert a right, taken in conjunction with lapse of time of more or less duration, and other circumstances causing prejudice to an adverse party, as will operate as a bar in a court of equity.” The defense is not available in an action at law, 19 Am. Jur., Equity, sec. 490. The statute of limitations had not run against the claim. The trial court erred in holding that laches of claimant barred his claim. This conclusion makes review of the evidence as to laches unnecessary.

As the trial court disallowed the claim because of laches, we cannot review the evidence or express an opinion as to the merits of the claim.

The order is reversed and the cause remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

FRIEND, P. J. and BURKE, J., concur.


text:
    Sire Plan Portfolios, Inc., Appellant, v. Charles F. Carpentier, Secretary of State of State of Illinois, Appellee.
    Gen. No. 46,714.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.

      Wisch and Crane, of Chicago, for appellant; Myron E. Wisch, and James E. Brown, both of Chicago, of counsel.
    Latham Castle, Attorney General of the State of Illinois, of Chicago, for appellee; Samuel H. Young, and Thomas S. Chuhak, both of Chicago, of counsel.
   JUDGE NIEMEYER

delivered the opinion of the court.

Plaintiff appeals from an order entered in an administrative review suit affirming the order of defendant, the Secretary of State, prohibiting the sale or offering for sale in the State of Illinois of fractional undivided interests (called by plaintiff “units of co-ownership agreements”) in real estate in the State of New York under a plan hereinafter fully described and called the Sire Plan, after a hearing and finding that the sale of the units of ownership was not in accordance with the provisions of the Illinois Securities Law of 1953 (Ill. Rev. Stats. 1953, chap. 121½ [Jones Ill. Stats. Ann. ch. 121]).

The plaintiff Sire Plan Portfolios, Inc., a New York corporation, hereinafter referred to as Sire, sells fractional undivided interests in income producing improved real estate by offering units of ownership. In the instant case Sire entered into a contract to purchase an apartment building in New York City for $244,589.12, and offered for sale 280 units of ownership at $500 a unit on the following plan. Under the terms of a “Purchase Agreement” between the purchasers of units and Sire the record title of property is to be transferred to individuals named by Sire as trustees for the benefit of all purchasers of units; pending the acquisition of title and the sale of sufficient units, all funds derived from the sale of units are to be deposited in escrow in a bank at Farmingdale, New York, and bear interest at 4 per cent until title to the real estate is actually transferred to the trustees; on receiving the title the trustees shall execute, record and deliver a “Declaration of Trust under the Sire Plan” and “Prime Lease under the Sire Plan” to Sire or its nominee, as lessee, and then convey to each unit purchaser his undivided proportionate interest in the property as a tenant in common with the remaining unit purchasers, subject to the declaration of trust and prime lease.

Under the terms of the prime lease the lessee assumes the responsibility of the physical management of the property for compensation at the rate of 5 per cent of the gross annual rental income, plus the payment in the instant case of 25 per cent of the net income of the property in excess of $14,000 at the end of any fiscal year. The lessee is also to see that all expenses are paid and that the profits are distributed pro rata to the co-owners.

In the preliminary agreement provision is made for the withdrawal of the unit purchaser at any time before the title to the property is acquired, and the refund of the money paid by him with interest. Under the declaration of trust the owners of 60 per cent or more of the units of ownership may remove the trustees, appoint new trustees or terminate the trust.

The decisive question is whether the transaction is merely a sale and purchase of a fractional undivided interest in the real estate, as contended by plaintiff, or an investment contract and, therefore, a security as defined in section 2 of the Illinois Securities Law of 1953 [Ill. Rev. Stats. 1953, chap. 121½, § 137.2; Jones Ill. Stats. Ann. 13.55(2)]. The definitions of “security” in the Federal Securities Act of 1933 and the Illinois Securities Law of 1953 are almost identical. Investment contracts are included in the term “security” as defined in each act. In Securities & Exchange Commission v. W. J. Howey Co., 328 U. S. 293 (1946), a case arising under the Federal Securities Act, the court said (p. 298) that the term “investment contract” under the blue sky laws of the states

“had been broadly construed by state courts so as to afford the investing public a full measure of protection. Form was disregarded for substance and emphasis was placed upon economic reality. An investment contract thus came to mean a contract or scheme for ‘the placing of capital or laying out of money in a way intended to secure income or profit from its employment.’ . . .
“. . . In other words, an investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promotor or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise.” (Emphasis added.)

In the Howey case the respondent Howey Company and Howey-in-the-Hills Service, Inc. (hereinafter called the Service company) were Florida corporations under direct common control and management; respondent owned large tracts of citrus acreage in Florida ; for several years it had planted 500 acres annually, keeping half of the groves itself and offering the other half to the public in small parcels of one or several acres to help finance additional developing; the Service company was engaged in cultivating and developing citrus groves and the harvesting and marketing of the crops; each prospective purchaser was offered a land sales contract and a service contract with the Service company; upon full payment of the purchase price the purchaser received a warranty deed for his tract; under the service contract the Service company was given full discretion and authority over the cultivation of the groves and the harvesting and marketing of the crops; it was accountable only for the allocation of the net profits based upon a check made at the time of picking; it was paid a specific fee, plus the cost of labor and material.

After pointing out that the respondent and the Serv: ice company were offering “something more than fee simple interests in land, something different from a farm or orchard coupled with management services,” and that the resulting transfer of the rights in land was purely incidental, the court said (pages 300-301):

“Thus all the elements of a profit-seeking business venture are present here. The investors provide the capital and share in the earnings and profits; the pro-motors manage, control and operate the enterprise. . . . The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. . . . The statutory policy of affording broad protection to investors is not to be thwarted by unrealistic and irrelevant formulae.” (Emphasis added.)

The transaction was held to be within the Federal Securities Act. The Illinois cases are consistent with this holding. In Prohaska v. Hemmer-Miller Development Co., 256 Ill. App. 331 (1930), the court held that a transaction calling for a warranty deed to farm land in South Dakota was within the Illinois Securities Law, and quoted with approval 37 Corpus Juris, page 275, as follows:

“The term ‘securities,’ as used in these laws (Blue Sky Laws), means written assurances for the return or payment of money, except where special definitions are given by the statutes. ... It means the investment of funds in a designated portion of the assets and capital of a concern, with a view of receiving a profit through the efforts of others than the investor; and in this sense includes what are termed ‘security’ or ‘investment’ contracts or ‘speculative securities.’ ”

In McCormick v. Shively, 267 Ill. App. 99 (1932), the court held that the transaction was a simple contract for the purchase and sale of real estate and not within the Securities Act, the vendor not being obligated to do anything other than the delivery of a deed for the purchase price, and said (p. 102): “The statute clearly contemplates that only such contracts shall be considered investment contracts as provide for the payment of money at a future time to the purchaser or holder of the contract.”

Plaintiff attempts to distinguish the character of the services rendered in cultivating, developing and marketing the produce of agricultural land and the management and rental of an apartment building. It insists that the services to be rendered by Sire under the prime lease are merely ministerial and administrative. With this distinction we cannot agree. An apartment building, even when fully rented, is not self-operating, leaving nothing for the manager to do except to collect rents, pay bills and remit the net profits to the respective co-owners.

Plaintiff further suggests that the right granted to the owners of 60 per cent or more of the units of ownership to remove the trustees, appoint new trustees or terminate the trust, is evidence of a control of the management and operation of the enterprise not present in the cases hereinbefore discussed. This control is illusory, not real. The situation of the holders of units of ownership is not unlike the plight of the widely scattered holders of small beneficial interests or shares of stock in reorganized corporate owners of apartment buildings following foreclosure.

The profits and income, if any, resulting from the Sire plan are produced by the efforts of Sire and its nominees in managing its properties, purchased with the money of many distant investors in small fractional undivided interests, without real control of the enterprise. It is an investment contract within the Illinois Securities Law of 1953, and the order is affirmed.

Order affirmed.

FRIEND, P. J. and BURKE, J., concur.


author: JUDGE BURKE

text:
    Thomas Svienty, by His Father and Next Friend, John Svienty, Appellee, v. Pennsylvania Railroad Company, Appellant.
    Gen. No. 46,547.
    First District, First Division.
    January 9, 1956.
    Rehearing denied February 1, 1956.
    Released for publication February 27, 1956.

      Robert H. Bierma, P. J. Cronin, and Harry I. Parsons, all of Chicago, for appellant; Charles D. Snewind, of Chicago, of counsel.
    Francis J. Gariepy, and Charles E. Mallon, both of Chicago, for appellee.
   JUDGE BURKE

delivered the opinion of the court.

Thomas Svienty, a minor, sued the Pennsylvania Railroad Company to recover damages for personal injuries suffered as a result of defendant’s alleged negligence in the use, storage and disposal of switch heaters, and recovered a verdict for $55,000 upon which judgment was entered. Defendant’s motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial were denied, and it appeals.

There was little dispute about the facts. Plaintiff suffered his injuries at about 9:30 in the forenoon on Wednesday, December 8, 1948, in a large vacant lot located on the north side of 49th Place and approximately one block west of Hoyne Avenue in Chicago. Hoyne Avenue runs in a northerly and southerly direction and 49th Place in an easterly and westerly direction. The lot is bounded on the west by defendant’s right of way, extends east more than a half block toward Hoyne Avenue, is in a thickly populated residential area and had been used by the children in the neighborhood as a playground for a number of years. Defendant’s right of way and tracks at this point run in a northerly and southerly direction and are on the west edge of the lot. The lot also extends south from the south side of 49th Place. The record does not show the ownership of the lot. In the northwest corner and along the west edge of the lot there were dry weeds four feet high. Eailroad tracks running in an easterly and westerly direction and bounding the north of the lot are elevated. These elevated tracks cross over the right of way of the defendant. Defendant maintains that its right of way is also elevated. We find, however, that the weight of the evidence establishes that defendant’s tracks and right of way are level with the adjoining property used as a playground.

The Svientys resided on the first floor of a two-flat building at 4936 South Hoyne Avenue, the back door of which is approximately 600 feet east of defendant’s right of way. The children used the lot in playing football, baseball, flying kites and ice skating. There was a baseball diamond in the northwest corner of the lot close to defendant’s right of way. Plaintiff was six years of age at the time of the occurrence. The defendant’s tracks were visible from the rear of his home. Plaintiff’s injuries were sustained when he and other small boys were playing with some railroad switch heaters owned by the defendant which had been disposed of by defendant’s employees along its right of way and in the vacant lot adjoining it.

There are ten switches or turnouts with crossover to permit switching at this point on the right of way. In winter the heaters are placed under the switches to prevent snow from freezing in the switches. About twenty of these heaters are brought out from the yards in September of each year and are picked up in April of the following year. The heaters are made of iron and are about 20 inches long, 6 inches high and 5% inches wide. Each heater weighs about 20 pounds and holds about 2% gallons of kerosene. There are two openings on the top of each heater through which it is filled with kerosene. Each opening is equipped with a heavy steel cover. The cover is attached to the heater by means of an iron chain 3 or 4 inches long. The heaters are placed underneath the switches between the ties and are not fastened. When the ground is frozen they cannot be easily removed. Each heater is equipped with handles at both ends. In the center of the heater is a burner. The cover of the burner should be kept on when the heater is not in use. The heater is lit by means of a blowtorch. The amount of kerosene in the heater permits it to burn 4 or 5 hours.

On the morning of the occurrence plaintiff and four other boys went to the lot to play with the switch heaters. Because of the observance of a religious holiday at the school they attended the boys were not in school. When they got to the lot they started playing with the switch heaters. They saw 20 or 25 of the heaters scattered around the west side of the lot. Some of the heaters were turned the “wrong way, some were upside down and some were not.” . Some of the heaters “had tops and about one half had no tops.” Some were filled with liquid, some were half full and “a couple of them were empty.” The boys proceeded to carry 10 or 15 of the switch heaters with no tops over to some weeds on the north side of the baseball diamond to burn the weeds so that they would not lose the ball when playing baseball. All of the boys, including plaintiff, participated in carrying the switch heaters by the handles. They then spilled the contents from the heaters over the weeds. Two of the heaters were burning under the tracks alongside the playground. Two of the boys carried one of the heaters to the tracks where they lit it from a heater which was burning under one of the switches and carried it back to the weeds. The heater was then thrown on the weeds which were ignited. Plaintiff was wearing long corduroy pants. When he helped carry some of the heaters over to the weeds he got oil all over his pants. When he walked too close to the fire, his pants caught fire. One of the boys extinguished the fire on plaintiff’s clothing. Plaintiff was carried home and then to a physician. He was painfully burned. There is no contention that the judgment is excessive.

We cannot agree with defendant that plaintiff failed to produce any evidence entitling him to invoke the doctrine of attractive nuisance. The boys went to the lot to play with the switch heaters. They had played with them on the lot on many other occasions. The heaters were made of metal and contained an explosible, combustible, ignitible fluid. Each heater had handles which made it easy to carry, and a handle on the top which slid back and forth. There was a large 4-inch wick in the center which lifted out. There were no tops on some of the heaters with which the boys were playing. Other children in the neighborhood had also played with the heaters on other occasions. They used the heaters to start fires to keep warm. They used them to keep warm during the ice skating season. The right of way was on the same level as the adjoining lot and there was no way of telling where the right of way ended and the lot or playground began. The children used the lot as a play field. There was a baseball diamond worn into the surface of the northwest corner of the lot close to defendant’s right of way. The switch heaters were dangerous for young children to play with. Defendant’s track foreman testified that it would be dangerous to light the switch heaters with a match “because you have to get too close and they would explode.”

The evidence shows that for a long time prior to the occurrence the defendant had actual notice that the children played with the switch heaters. The children had taken the switch heaters and also lit them in the presence of defendant’s workmen and the latter had never taken the heaters from them, nor told the children not to play with the heaters. There was testimony that on occasion the children would ask defendant’s workmen for the switch heaters and that the workmen would give the heaters to the children. The evidence established that when the switch heaters were not in use they were not placed or stored in any shed or container. No effort was made to pick them up or to store them on the far or west side of defendant’s right of way instead of the adjoining lot used as a playground on the east side of the right of way. Nothing was done to warn the children of the danger in playing with the heaters. We have no hesitancy in stating that under the authorities the court was right in deciding that whether or not the defendant was negligent in maintaining an attractive nuisance was a question of fact for the jury. See Kahn v. James Burton Co., 5 Ill.2d 614.

We turn to a consideration of defendant’s contention that the presence of the heaters was not the proximate cause of the injury to the plaintiff. It argues that the heater was harmless and incapable of causing injury to the plaintiff and that the proximate cause of the injury was not the heater hut the acts of plaintiff and his companions in trespassing on defendant’s right of way, where they lit one of the heaters, removed the lighted heater to the weeds and started the fire, and that the intentional starting of the fire was the proximate cause of the mishap. We think that the defendant should have foreseen that children could he seriously burned in playing with the heaters. Defendant knew that the heaters contained a volatile, explosible liquid. Where injuries to a minor are caused by a device inherently dangerous or containing an explosible or" combustible fluid, the act of the child in playing with it or lighting it with a match is not an intervening cause. Featherstone v. Freeding, 349 Ill. App. 359; Zazkowski v. Choyce, 324 Ill. App. 582 (Abst.); Shapiro v. City of Chicago, 308 Ill. App. 613. We find that under the facts of this case the court was right in submitting to the jury the question of probable cause.

Defendant states that the trial judge committed reversible error in instructing the jury in the language of the statute that it “shall be unlawful for any person, firm, association or corporation to keep, store, transport, sell or use any crude petroleum, benzine, benzol, gasoline, naphtha, ether or other like volatile combustibles or other compounds, in such manner or under such circumstances as will jeopardize life or property.” Defendant asserts, without citing authority, that this statute is inapplicable to the facts of the case. There was competent evidence from which the jury could find that the defendant kept and used a volatile and combustible liquid in such manner or under such circumstances as to jeopardize life and property. See Bandosz v. Daigger & Co., 255 Ill. App. 494; Zazkowski v. Choyce, 324 Ill. App. 582 (Abst.).

Defendant insists that a jury reading the instruction would assume a violation of the statute because someone was injured by a volatile combustible. The giving of an abstract instruction of this nature should not be encouraged. Under the factual situation we do not believe the defendant was harmed by the instruction.

We cannot agree with the contention of defendant that the verdict was the result of prejudicial and improper argument. Finally, the defendant urges that the judgment is contrary to the manifest weight of the evidence. A careful reading of the record convinces us that the judgment is supported by the evidence and that it should be affirmed. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

FRIEND, P. J. and NIEMEYER, J., concur.


text:
    Charles Petty, Plaintiff-Appellee, v. Illinois Central Railroad Company, Defendant-Appellant.
    Gen. No. 46,580.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.

      Herbert J. Deany, Erie J. Zoll, Jr., and Charles I. Hopkins, Jr., all of Chicago, for defendant-appellant; Joseph H. Wright, of Chicago, of counsel.
    James A. Dooley, of Chicago, for plaintiff-appellee.
   JUDGE BURKE

delivered the opinion of the court.

Charles Petty sued the Illinois Central Railroad Company to recover damages for injuries suffered when the automobile in which he was being driven collided with defendant’s suburban train at about 10:55 P. M. on Saturday, October 13, 1951. The court entered a judgment for $75,000 on a verdict returned by a jury. Motions by the defendant for a directed verdict, for judgment notwithstanding the verdict and for a new trial were denied. Defendant appeals.

The impact occurred at the intersection of the tracks of defendant’s Blue Island suburban branch with Ash-land Avenue, a block south of Chicago. This is a single track line extending in a southwesterly direction from Kensington, a station on the south side of Chicago, to Blue Island. The branch is 4.42 miles long. Prom Blue Island station, the southwest terminal, to Burr Oak, the first station to the northeast, it is 0.55 of a mile; from Burr Oak to Ashland Avenue it is 0.49 of a mile; and from Ashland Avenue to Kensington it is 3.38 miles. The single track crosses Ashland Avenue running southwest to northeast at an angle. Ashland Avenue is a heavily traveled north and south highway, paved with concrete. It is 40 feet wide from curb to curb and carries two northbound and two southbound traffic lanes. About 200 feet north of defendant’s right of way a line of the Rock Island lines crosses Ashland Avenue in an easterly and westerly direction. The posted speed limit on Ashland Avenue in the vicinity of the crossing is 45 miles an hour. Trains run in both directions on defendant’s track. The trains crossing Ashland Avenue are classified as northbound and southbound. There are 32 southbound trains and 29 northbound trains each weekday, some labeled “express” and some “local express.” In addition to the scheduled trains, extra or nonschednled trains operate on the track and cross Ashland Avenue. These are not passenger trains. The man in the interlocking tower at West Pullman, one mile east of Ashland Avenue, recorded that on the day of the occurrence 34 southbound trains and 34 northbound trains moved over this track.

North of the tracks and west of the highway there is a one story building, used at the time as a tavern, and north of that a two story building used as a residence. The south side of the tavern building is 35 feet from the tracks. A surveyor testified for plaintiff that from “the front of the tavern to Ashland” measures “about 21% feet.” A plat admitted by agreement shows a distance of 27 feet from the front wall of the tavern to the western edge of the Ashland Avenue roadway. The gate standard in the northwest quadrant is 31 feet from the north rail and 4% feet from the west edge of the Ashland Avenue roadway. South of the track and east of Ashland Avenue is located the suburban station for Ashland Avenue. It consists of a ground level platform about 30 feet long, followed by a stairway leading to an elevated platform 209 feet long, on which platform a wooden shelter is provided for passengers. The west end of the ground level platform is 11 feet from the east edge of Ashland Avenue. The platform is 8 feet wide and runs parallel to the track on the south side thereof. South of the platform and east of Ashland Avenue there is located a trailer camp consisting of several houses surrounded by trailers.

The crossing is protected by automatic flashing signals in combination with short-arm gates. In addition there are erossbuck signs to indicate the presence of a track, and a standard highway sign located 410.2 feet north of the intersection, west of the highway, as a preliminary warning to southbound vehicular traffic. Back to back flasher lights are mounted on gate standards located in the northwest and southeast quadrants of the intersection. These lights are 7% to 8 feet high. The gate arm on the northwest corner has three red lights affixed to the top of the arm. The one at the end of the arm is steady and the other two are flickering lights. This arm is mounted on a gate standard at the northwest corner, and when lowered extends across the two southbound lanes of Ashland Avenue approximately parallel with the track, on the north side thereof. A similar arm is mounted on the southeast standard and when lowered, extends across the two northbound lanes. The crossing bell is located at the top of the standard in the southeast quadrant.

The crossing protection complies with the orders of the Illinois Commerce Commission. It is operated on a closed circuit principle. The rails are divided into sections called blocks by the placing of insulated joints at various locations. These sections of rails are energized by an alternating electric current, and at one end of the rail section or block a relay is attached by means of a cable. On the other end of the block there is a source of energy which is fed into and through one rail to the relay end, through the relay, back, through the other rail, connecting to the other end of the source, which makes a closed circuit. As long as there is no broken rail, no broken wire or train present on this track, the relay is in an energized position. In other words, it is held up against the force of gravity. When a train enters this section, the wheels of this train act as a short circuit from one rail to the other rail. It is easier for the current in the rail to come from the source through one wheel into the axle, into the other wheel, back into the rail and back again, than it is for it to go up and go through the relay. Consequently, when a train enters this section, the relay immediately drops because the energy is failing to reach it and gravity pulls it down.

A train coming from Blue Island enters one of these block sections at the starter point, which is 2024.1 feet west of Ashland Avenue, and the presence of this train on the track shunts out the energy from the relay and the relay drops. It requires about three quarters of a second for that relay to drop. The dropping of the first relay, in turn, causes another one to drop and that, in turn, causes the light on the flashers to start working and the bell to start ringing. A third relay works the gates. The dropping of the second relay causes the energy to be taken from the third relay. The third relay is a time-delay relay. "When the energy is taken, it takes approximately 3 to 4 seconds for it to release. After it releases and drops, the gates start down. "While the gates are lowering, the bells ring constantly, the lights flash on the two masts on each side of the tracks, and the lights on the gate arm burn. As the train approaches the crossing, the gates remain down and the lights on the two masts and on the two gate arms continue to burn or flash until the rear end of the train clears another section, which, at Ashland Avenue, is 5 or 6 feet east of the east edge of Ashland Avenue. As soon as the rear of the train clears that point, the gates start rising. During the lifting period the lights continue to flash and burn on the gate arms and the flashers until the gates have gotten in the clear. Then the lights and flashers go out and the gates are again in an upright position. There are two sources of energy of this installation. One source is commercial electricity. In the event that the commercial electricity goes off there is a relay that immediately drops and cuts in a set of batteries which supply energy for approximately three days in case the commercial power should not come back. The trippers at the start of the block are set so that the fastest train that uses the crossing-gives a 25-second warning minimnm time to pedestrians and highway traffic. At this crossing, for trains moving northeast, the tripper more than complies with the 25-second minimum. The tripper is 2004.1 feet from the west edge of the Ashland Avenue roadway.

On the night of the occurrence plaintiff, who was 25 years of age, and Arthur Luckett, who at the time of the trial was in the armed forces, drove in a 1940 Dodge car owned hy plaintiff’s father to a theater at 47th and South Park Avenue, Chicago, and attended a show. Thereafter they went to a gasoline station where plaintiff purchased gasoline. They were on their way to Robbins, a village west of Blue Island. Plaintiff asked Luckett to drive when they were at the gasoline station because he was tired, and Luckett did so. Plaintiff sat in the front seat with Luckett. After plaintiff bought the gasoline they started south. They got on Ashland Avenue and in approaching the intersection of the defendant’s tracks they were traveling in the lane farthest west. They were having a general conversation and plaintiff was not watching Luckett intently. He looked at Luckett from time to time to talk to him.

There is a conflict in the testimony as to approximately what happened. There was a collision. The front end of a northeast bound two-car train approaching Ashland Avenue and the front right side of the car driven by Luckett came together, the point of contact being placed by plaintiff’s witness Cent at the center of the inner southbound lane, and by plaintiff’s witness Land at a point about the center of the highway. The defendant’s witnesses Quiett and Wilson placed the point of impact 10 feet east of the center line of Ash-land Avenue, and in this they are corroborated by photographs and defendant’s witnesses Pruitt and Sled, both of whom testified the automobile passed around the east end of the lowered gate in the northwest quadrant. The front right end of the car wedged under the front center of the train, and the train pushed or dragged the car about to the end of the Ashland Avenue station. The impact and sldd marks were visible and were identified. The conductor of the train got off the first car and, seeing the automobile on the front of the train, called the power supervisor and went to the tavern to call the police and the ambulance, both arriving in a few minutes. Plaintiff was still in the car but Luckett was outside walking around. The men in the ambulance removed plaintiff from the car and took him to St. Francis Hospital in Blue Island. One of the policemen took Luckett to the same hospital in the squad car. The train was then disengaged from the automobile and, the brakes and angle cock of the lead car being damaged, the train was moved back to Blue Island.

Three occurrence witnesses testified for the plaintiff. Adam Cent said that after leaving his home in the trailer camp at about 10:45 P. M., and while standing about 35 feet south of the flashing light signal, he saw an eastbound train about 300 feet away approaching from the west and plaintiff’s car coming from the north. He said that the gates did not come down, the bells did not ring and the lights did not flash; that the “headlight on the train seemed to be mighty dim and the lights in the car were not too bright”; that the front end of the train and the right side of the car came together; and that the contact was on the west side of the street, about the middle of the inner southbound lane. He testified further that within an hour men from the railroad came out and worked on the crossing protection “but the gates kept acting up there.” He said that about 5 or 10 minutes after the accident two men got hold of the gate and pulled it down by hand; that up to that time the flasher lights had not come on; and that when the men pulled the gate down the lights did go on and the bells started ringing. Over defendant’s objection the witness testified that on the Sunday before the accident he saw the gates going up and down while a train was traversing the crossing; that they were “flopping around,” “just as if there was a ghost or something actuating them or wind, and there was no wind around.”

Allen Land, called by plaintiff, testified that he was driving south on Ashland at a speed of 45 miles an hour; that plaintiff’s car was about 150 feet ahead of him, going about 30 or 35 miles an hour; that as plaintiff’s car got to the crossing “the gates started down and the train was there”; that the gates “just started, they just had started to come down when the train was there”; that just before the impact plaintiff’s car swerved in a southeast direction and its tail lights lit up, indicating that the brakes had been applied; that the automobile was right on the track when the gates started to come down; and that the flasher lights were not flashing and the bell was not ringing. He testified further that the “lights did not go on when the gates started down and the flasher lights did not light up. It was total darkness.” The witness drew a line marked “H” on a picture containing a panoramic view of the area to indicate the point to which he saw the gate drop, and said, “I did not see the gate go back or go down further.” He said that the train “was going something like 40 to 45 miles per hour.”

The plaintiff, in his own behalf, testified that on the night of the occurrence he was in his father’s automobile with his friend Arthur Luekett. They were on their way home. At a gasoline station plaintiff asked Luekett to take over the driving because he, plaintiff, was tired and wanted Luekett to drive as an accommodation. Plaintiff sat beside Luekett. In approaching the Ashland Avenue intersection with defendant’s tracks the car was moving south in the outer or westerly lane at a speed of 30 to 35 miles an hour. About 100 feet from the crossing plaintiff noticed that the crossing gates were up and that the lights on them were not lit. The car continued toward the crossing at the same speed. Plaintiff did not see any lights flashing and did not hear any bells ringing as the car approached the intersection. When the car was “eight to eleven feet from the nearest north track” plaintiff saw the gate on the southeast side of the highway “start to wave.” The northwest gate remained quiet in an upright position. At that instant Luckett swerved easterly and the collision occurred.

Harry Pruitt, the engineer of the suburban train, called by defendant, testified that the train left Blue Island at 10:50 P. M.; that the first stop was Burr Oak, a regular stop; that the next station is Ashland Avenue, which is a flag stop; that between Burr Oak and Ashland Avenue the train went at a top speed of about 30 miles an hour until it got to within 200 feet of Ash-land Avenue, “where I slowed down to approximately 25 miles an hour just in case we happened to have passengers who want to get on at Ashland Avenue. This gave me plenty of time to stop at the station if need be.” Witness testified further that from Wood Street, the first crossing west of Ashland Avenue, the latter crossing can be seen very plainly, especially at night; that at Wood Street is located the tripper which operates the gates at Ashland Avenue; and that as the train crossed Wood Street, the Ashland Avenue gates ahead of the train went down and the red lights on the post and on the gates were flashing back and forth in a normal manner, and the crossing bell was ringing. Going into Ashland Avenue he said he was standing up ringing the foot bell; that he saw no traffic approaching on Ashland Avenue from either direction; that when he got to within 25 feet of the concrete pavement there was a car in the east lane coming south, so he put the brakes in emergency immediately; that “he was about the same distance north of me, north of the impact, as I was west. He was traveling south, really southwest, because he had kinked the car to go around the gates. I observed the car was turning toward me and I struck him then. His motor came in contact with the left front corner of my cars.” Pasquale Esposito, the flagman on the train, testified that he was sitting near the front of the second car; that as the train reached the pavement of Ashland Avenue he observed that the gates on the south side of the train were down; that he observed all the lights were lit; that all four lights were working on the cross arm; that the flashers were working; that he heard the air released and “figured we were coming to a stop and right after that I heard the crash.” He testified that on moving across Ashland Avenue, as the train began its trip back to Blue Island, the lights lit, the gates went down and the flashers flashed. He said that the Ashland Avenue protection also functioned normally on the return trip from Blue Island to Kensington, just as it had on the two round trips made earlier in the evening.

Grace Mager, a witness for defendant, lives about 90 feet south of the tracks and about a half block east of Ashland Avenue. She testified that she was watching television in her home. As the train approached the crossing she heard the bells ringing. She did not say whether any lights were flashing because she was watching her television set. The first thing that attracted her attention was the sound of the crash. She “jumped up, ran out of the house toward the train tracks” in time to see a train pushing a car down the track. When she got outside she also saw that the gates were down, the flasher lights were flashing and the lights on the gate were lit. She also heard the bell ringing. She stayed there until the train crossed Ash-land Avenue on the way back to Blue Island. When the train went back over the intersection the lights started flashing again and the gates went down. She did not hear a bell at that time. She watched the train until it got over Ashland Avenue and observed that the gates went up.

Charlotte Kazmierczak lives in the southeast quadrant of the intersection about 250 feet from defendant’s right of way. She testified that she was sitting in her living room watching television. She heard a crash. She “jumped up as fast as I could, ran to the southwest window of my kitchen. ... I saw a train dragging a car and saw a lot of sparks.” She saw the gates were down and the flasher lights and the lights on the gate arm were lit. After 15 or 20 minutes following the accident she saw the train move back toward Blue Island and as it did so, the gates were working. Her daughter Charlene, nine years old at the time, said that when she and her mother heard the crash they both ran outside. She looked at the crossing and saw the train dragging the car. She testified that at that time she saw that the flasher light was flashing, the gates were down and the lights on the gate were on.

Christian W. Groeke, the conductor, testified that he was standing up at the rear of the first car. He did not observe the gates or crossing protection prior to the accident. When the train came to a stop after the crash, he got off the southwest corner of the first car. Before getting off he looked both ways. He said “When I looked to the south I seen the gates raising. It was a little better than half ways up, and when I looked the other way I seen the automobile on the front end of the train.” He testified further that going hack with the train to Blue Island he noted the gates were working, saw the gates come down and heard the bells ringing, and that on the next trip from Blue Island to Kensington the Ashland Avenue crossing protection was functioning normally.

John Sled, testifying for the defendant, operated the tavern on the west side of Ashland Avenue next door to the tracks. At the time of the occurrence he was standing alone between the bar and the window, looking out the window. He said he had a good view of the crossing and could see “some distance north on Ash-land Avenue.” He said he saw the collision and that “the first thing I saw I heard a hell start to ring and then the gates started coming down. The gates came down, the lights started flashing. The lights started flashing when the gates started coming down. The gates came all the way down and the hell started ringing. All the lights were working, flashing. I next saw a car coming south in the southbound lane. It was in the second southbound lane — third southbound lane, about 50 feet from the crossing. I saw the car before it came to the gates swinging over to the east and it started to go around the gates. I seen it go around the lowered gate on the north side and then the train come up and hit the car. I first saw the train when it started crossing Ashland Avenue. I heard that clink, clink, clink of the bell ringing. . . . The car got hit from the front on the right side. The two came together on the highway between the gates.” The witness said he knew Adam Cent. He said when he heard the bells and saw the gates go down he did not know there was going to be an accident. The tavern had a neon beer sign that “lit up at least half a block.”

T. B. Thompson, signal engineer for the defendant, testified as to the character of protection at the crossing, the sequence of operation and the protective devices as hereinbefore related. In addition he said that every conceivable source of trouble that one would expect to find in that type of gate could be divided into three parts. The first would be trouble in the track circuits. There could be a broken wire connecting the rails, or a broken wire connecting the relay. In each case, the track being on the closed circuit principle, the relay would be de-energized and pulled down by gravity and the signals would be set into operation. The second would be a case of trouble in the control box, which might be from a broken wire. Again the control apparatus being on the closed circuit principle the re.lay or relays would be pulled down by gravity and-the apparatus would be set in operation. The third, in case of a broken wire or trouble in the motor, the gates, working on the closed circuit principle, would be released and the gates would be pulled down by gravity and assume tbe most restrictive position. He testified on cross-examination tbat to bis knowledge a relay could not stick and he bad never known of a relay to stick or of a gate to get stuck in an upright position. He stated that if a gate were pulled down by band it would cause tbe light on tbat gate and on tbe opposite gate as well as all tbe flashers, to light up, but it would not cause tbe bell to ring, tbe bell being on a separate circuit. He testified tbat if tbe gate were to drop as witness Land said it did, tbat would have meant tbat tbe end of tbe gate bad lowered five feet from its normal vertical position, and tbat if tbe gate were to be moved in tbat manner, tbe fights on tbe gate and tbe flashers would light.

R. B. Thomas, chief engineer of tbe Illinois Commerce Commission, testifying for tbe defendant, said tbat in 1934 there was under way a program of tbe Commerce Commission to improve crossing protection; tbat a rather extensive program was developed; that be was associated with tbe development of tbat program and bad been connected with crossing protection ever since. He has made considerable study and research in tbe development of new crossing protection, among which was tbe reflector type of crossbuck signs and short-arm gate combined with tbe flashing light signals such as there is at tbe intersection where tbe accident occurred. In bis experience with signal systems of this type, be has never known of a relay to stick, bolding the gates up. He said, “The TR relay ... is held in an upward position by a contact and tbe current flows through tbat contact into tbe relay. As soon as tbe current is cut off, tbat relay just falls, there is nothing there to bold it. . . . When it falls it throws tbe current through tbe XR relay and tbe flashers begin to operate and tbe gates drop.” On cross-examination, to tbe question “And if there is anything wrong with the relay it won’t work?” he answered, “Well, I wouldn’t say that. There’s nothing to hold it. It just has to drop. It’s like holding a flatiron in yonr hand, when you let go of it there is nothing else for it to do hut drop.” He testified: “All I can say is that I don’t know how it can stick, one that goes by gravity, I don’t know how. It just has to fall. . . . There is nothing to hold them. They are gravity gates and they are so balanced if the current is off or anything like that, the gate has to drop.”

Mrs. Charlotte Kazmierczak, who lived near the intersection for 15 years, testified that if the crossing protection is out of order, the gates “are always down and the flashers are on.” She reported such a condition two or three times in the 15 years “I am living there.” John Sled, who operated his tavern adjacent to the tracks at the intersection for five years, testified that on two or three occasions in that period the gates did not operate and that at such times the gates were in a down position. Daniel F. Quiett, assistant superintendent of freight service for the defendant, testified that he got word of the accident at about 10:55 P. M.; that he arrived at the scene about 11:55 P. M.; that when the train, after the accident, proceeded west on to Ashland Avenue, the crossing protection operated normally, as it did subsequently when later trains passed the crossing; that the signal maintainer arrived about 12:20 A. M.; and that he, Quiett, saw him make checks which showed that the crossing protection was working perfectly.

Russell Mager, the husband of Grace Mager, testified that he learned of the accident when his wife woke him up; that he was asleep on the divan; that when he got outside the train had come to a stop; and that when the train was moved back west across Ashland Avenue after the accident “the flashers started working and the gates went down.” Homer F. Wilson, assistant superintendent of passenger service, arrived on the scene around 11:45 P. M. The train had departed when he arrived. He testified that when the train from Blue Island crossed the Ashland Avenue intersection at approximately 11:55 P. M. the protection worked normally as it did on returning’ from Kensington at about 12:14 A. M. He saw the signal maintainer arrive at about 12:20 A. M. and saw him test the crossing protection mechanism. The tests showed nothing wrong with the mechanism.

Prank Anderson, trainmaster for the defendant, arrived about 11:15 P. M. He supervised the movement of the train involved in the collision back across Ash-land Avenue so it could go back to Blue Island. He said that when he gave the proceed signal the lights actuated; that both gates were down; that the bells were ringing, flashers working; that all lights lighted up including those on the flashers and on the gates; that the gates were down when he gave the signal to move; and that when he got over the crossing to the west, the gates were released and went up and the flasher lights went out. When subsequent trains crossed the crossing that night he observed that the crossing protection functioned normally. He watched the signal maintainer test the protection mechanism and it operated properly and normally. Santy Corsello, signal maintainer for the defendant, arrived on the scene about 12:20 A. M. He testified about how he immediately tested the crossing protection and found it in perfect order. He was at the crossing until 1:20 A. M. watching the trains go over the crossing. No repairs were needed and he made none. He also testified that two days before the accident he had made a check of the crossing protection, finding nothing out of order. Fred W. Lussenhop, on the night of the accident, was on duty as a police officer. Pie and his partner, John Swabowski, were in a squad car cruising in the neighborhood when he got a radio call concerning the accident. He arrived there about 10:56 P. M. Seeing the car pinned under the front of the train and plaintiff still in the front seat, the witness called an ambulance and a tow truck. The man in the ambulance took plaintiff to St. Francis Hospital in Blue Island and the witness took the driver, Arthur Luckett, to the same hospital in the squad car. The witness returned to the intersection just in time to see the train “backing west across the crossing going into Blue Island again and I noted the red lights and the crossing gates were down and the flashers were working.” When the train passed as he drove north he noticed the gates were working in good order. As soon as they were up the lights went out. John Swabowski, a part-time patrolman, was Lussenhop’s partner on the night of the accident. He testified that when the train moved in the direction of Blue Island, the Ashland Avenue protection operated normally, the flashers were flashing and the bell was ringing.

Defendant, arguing that there is no credible evidence to support the judgment, asks that we enter judgment for it. Defendant asserts that although the testimony is conflicting as to precisely how the mishap occurred, the testimony of plaintiff’s witnesses is so inconsistent, contrary to natural and scientific law, and otherwise beyond the bounds of belief, that it will not support a verdict in his favor, and that there is no credible evidence of defendant’s negligence. Defendant states that the rational and credible explanation as to why the collision took place is that Luckett tried to go around the lowered gate, and that because the record is devoid of any showing of due care on the part of plaintiff or Luckett that the court erred in denying its motion for judgment notwithstanding the verdict. We are of the opinion that the evidence shows that the relationship between plaintiff and Luckett was that of principal and agent, and that plaintiff had the burden of proving due care on his part, and also that his agent Luckett was in the exercise of due care prior to and at the time of the occurrence. Viewing the evidence in its aspect most favorable to plaintiff, together with all reasonable inferences arising therefrom, we cannot hold that the trial judge erred in refusing to give judgment notwithstanding the verdict.

We turn to a consideration of defendant’s contention that the judgment is against the manifest weight of the evidence. The testimony of Cent, Land and plaintiff that the gates were up, the lights dark and the bell silent is contradicted by the testimony introduced by defendant. Five of its witnesses, Pruitt, Grace Mager, Charlotte Kazmierczak, Charlene Kazmierczak and Sled testified that the lights were flashing, and four of them Grace Mager, Charlotte Kazmierczak, Charlene Kazmierczak and Sled, testified that the bells were ringing. The testimony of defendant’s witnesses regarding the operation of the gates and the lights was not contradicted or shaken. The testimony of defendant’s witnesses that the protective system was operating and that of Thompson, the signal engineer, and Thomas, the chief engineer of the Illinois Commerce Commission, is convincing. The testimony of Thompson and Thomas as to the operation of the crossing protection stands uncontradicted. The uncontradicted evidence establishes that there was a distance of 2004.1 feet for a train to travel from the tripper to the west edge of Ashland Avenue. A train traveling 90 miles an hour would be 44.1 feet west of the west edge of Ashland Avenue 15 seconds after hitting the tripper. Pruitt, the engineer, placed his maximum speed at 30 miles an hour. Land testified that the train was moving at a speed of 40 to 50 miles an hour. We are convinced that the judgment is against the manifest weight of the evidence and that the court erred in not granting a new trial.

We do not think that the trial judge erred in sustaining plaintiff’s objection to an inquiry of the defendant as to whether Luckett had a driver’s license. We are of the opinion that the court did not err in refusing to admit testimony by the engineer Pruitt of a conversation he overheard between the police officer and Luckett immediately following the stopping of the train. The agency relation between plaintiff and Luckett did not exist at the time of the conversation and the conversation did not constitute a part of the res gestae. Plaintiff’s instruction No. 14 is erroneous in omitting a statement that plaintiff was required to prove that Luckett was in the exercise of due care prior to and at the time of the occurrence. Defendant states that this is the type of instruction the giving of which was held to be reversible error in Signa v. Alluri, 351 Ill. App. 11. The instruction summarizes the allegations of the complaint and the answer and is not vulnerable to the criticism voiced in the Signa case. We find that the court did not err in refusing to give six instructions tendered by the defendant.

For the reasons stated the judgment of the Circuit Court of Cook County is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

FRIEND, P. J. and NIEMEYER, J., concur.


text:
    In re Estate of Isadore Berman Pinsky, Deceased. Arthur Cohen and Hannah Cohen, Appellants, v. Joseph Pinsky and Harry Prince, Appellees.
    Gen. No. 46,655.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.
    Joseph B. Quinn, and John J. Kennedy, both of Chicago, for appellants.
    Curtis, Friedman & Marks, of Chicago, for appellees; Louis David Friedman, of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

Hannah Cohen and Arthur Cohen, individually and as trustees for Eileen Cohen and Sidney Cohen, minors, filed written objections to the final account of the executors under the last will of Isadore Berman Pinsky, deceased, and asked that it be disapproved. Following a hearing the Probate Court approved the account subject to the production of vouchers. On appeal the Circuit Court entered the following order:

“And this cause having come on to be heard upon the call of this matter on the regular trial call, and the Court having examined the pleadings herein and the Final Account and the objections thereto, and having heard the arguments of counsel made in open court, and being fully advised in the premises, It is hereby ordered, adjudged and decreed that this appeal be and the same is hereby denied and that this cause be and the same is hereby dismissed.”

The objectors, appealing, ask that we reverse the order of the Circuit Court and remand the cause to that court with directions to hear the case de novo and to enter an order according to the proofs introduced.

The objections to the final account had been disposed of in the Probate Court by final and appealable orders from which the objectors did not appeal. See In re Estate of Luer, 348 Ill. App. 324, for a discussion of the finality of judgments in probate. The unappealed final orders of the Probate Court adjudicated the objections interposed by the appellants and they cannot relitigate these matters.

In appeals from the Probate Court to the Circuit Court it is the duty of the latter to try the case de novo and to pass upon the merits of the case. The court is without jurisdiction either to affirm or reverse the judgment of the Probate Court. See Burstein v. Millikin Trust Co., 350 Ill. App. 462; In re Estate of Murray v. Appeal of Murray, 310 Ill. App. 121. The order of the Circuit Court whigh “denied” and “dismissed” the appeal is erroneous. Therefore the order of the Circuit Court is reversed and the cause is remanded with directions to enter an order approving the final account subject to tbe production of vouchers for the distribution shown therein.

Order reversed and cause remanded with directions.

FRIEND, P. J. and NIEMEYER, J., concur.