author: PRESIDING JUSTICE MoCORMICK

text:
    Anders Forslund, Appellee, v. Chicago Transit Authority, Appellant.
    Gen. No. 46,668.
    First District, Second Division.
    February 21, 1956.
    Released for publication April 3, 1956.

      Thomas C. Strachan, Jr., Arthur J. Donovan, and Paul Denvir, all of Chicago, for defendant-appellant.
    Arthur S. G-omberg, and Joe Reiff, both of Chicago, for appellee; Samuel Nineberg, of Chicago, of counsel.
   PRESIDING JUSTICE MoCORMICK

delivered the opinion of the court.

Judgment for $5,500 in favor of the plaintiff based upon a jury’s verdict was entered in the Circuit Court of Cook County. The suit was brought to recover damages sustained by plaintiff while boarding a streetcar owned and operated by the defendant. From this judgment the defendant appeals on the theory that it was not guilty of any negligence and that the sole and proximate cause of plaintiff’s injuries was his negligence in attempting to board a moving streetcar.

The evidence on behalf of the plaintiff was to the effect that at the intersection of Madison street and Cicero avenue, in Chicago, Illinois, he attempted to board a northbound Cicero avenue streetcar; that the streetcar ordinarily stopped with the rear end 50 feet south of the south curb line of Madison street and that on the day of the accident, because automobiles were standing at the intersection, the streetcar had stopped 20 feet south of its ordinary stopping place; that a number of people at the time were attempting to board the car, the last of whom was the plaintiff; that he had placed one foot on the top of the platform and the other on the step, holding the handle with his right hand, when the streetcar started, throwing him so that his left shoulder hit the pavement; that at the time he fell from the car he was about 60 or 75 feet south of the stop and go signal; that the car had moved about 5 feet from the time it started, and had stopped with the front of the car south of Madison street.

The evidence on the part of the defendant indicates that the streetcar had stopped at its usual stopping place with the front end at the building line of Madison street; that the streetcar was 50 feet long; that it had started and had moved some distance when the plaintiff attempted to board the moving streetcar and fell and was injured; that the streetcar stopped in the intersection.

The first contention urged by the defendant is that the verdict is against the manifest weight of the evidence.

When the case was submitted to the jury the defendant offered a special interrogatory, which was submitted by the trial court to the jury together with the forms for a general verdict. The interrogatory was: “Did the plaintiff board the streetcar at the time and place in question while it was in motion?” The jury at the time it returned a general verdict in favor of the plaintiff finding his damages at $5,500, answered the interrogatory “no.” In the motion for new trial the defendant alleges that “the verdict is contrary to and against the manifest weight of the evidence.” No reference is made to the special interrogatory. The question before the jury in the trial court was whether or not the defendant through its negligence in starting the car at the time when the plaintiff was attempting to board it caused the alleged damage. The theory of the defendant was that the plaintiff was injured because he attempted to board a moving car. Consequently if the jury found that at the time of the accident plaintiff was not attempting to board a moving car, on the evidence in the record they could render no other verdict than the one which they returned. The answer to the special interrogatory is consistent with the general verdict and substantially conclusive of the issues in the case. In Voigt v. Anglo-American Provision Co., 104 Ill. App. 423, the Appellate Court held that the assigned error in the motion for new trial that the verdict was against the manifest weight of the evidence applied only to the general verdict and did not include an objection to the special findings, and that, in the Appellate Court, under such circumstances the special findings must be considered to stand as fully sustained by the evidence. The Supreme Court affirmed the Appellate Court (Voigt v. Anglo-American Provision Co., 202 Ill. 462), saying:

“It is, of course, the bounden duty of the Appellate Courts to consider questions of fact properly presented and to correct errors of fact committed by the trial courts. . . . Where, however, it is alleged that the trial court erred in overruling the motion for a new trial, based on the ground that the verdict was against the weight of the evidence, the Appellate Court is the only tribunal that can correct the error, if any has been committed, and the aggrieved party has the undoubted right to have the decision of that court on the question. . . . But in the case at bar we do not understand, even from the language of the opinion filed, that the Appellate Court regarded the decision below as conclusive of the facts, but only that the objection that the verdict was against the weight of the evidence applied only to the general verdict, and not to the answers of the jury to the special interrogatories submitted to be answered, as this court has already held, (Avery v. Moore, 133 Ill. 74; Pennsylvania Coal Co v. Kelly, 156 Ill. 9; Empire Machinery Co. v. Brady, 164 Ill. 58;) and that the special findings, not having been mentioned as a ground for a new trial, could not be assigned as error in the Appellate Court, and that, such findings being unquestioned and substantially conclusive of the facts upon which the question of liability depended, the judgment could not, on the alleged error, be reversed.”

See also Weinrob v. Heintz, 346 Ill. App. 30; Brant v. Chicago & Alton R. Co., 294 Ill. 606; Brimie v. Belden Mfg. Co., 287 Ill. 11. Under these holdings, since no objection in the instant case was made to the special findings in the motion for new trial, the question as to whether or not the verdict of the jury was against the manifest weight of the evidence is not before us.

The defendant makes certain procedural objections which we will consider.

In the trial it was admitted that the plaintiff fell to the ground from a streetcar and was injured. The only disputed question of fact was as to whether he was injured while attempting to board a moving car or while boarding a standing car which started up before he had a chance to reach the platform. There was conflict in the testimony as to where the streetcar stopped.

The defendant complains that the plaintiff attempted to impeach, on immaterial matters, witnesses proffered by it. One Lyons, a witness proffered by the defendant, testified on direct examination that the streetcar had stopped at Madison street and that he knew approximately where the streetcar had stopped; that the streetcar had moved about 60 feet before the time when the witness, who was on the rear platform of the streetcar, first saw the plaintiff, at which time he was attempting to board the streetcar at a running gait; that the streetcar stopped in the intersection with its rear about 10 to 15 feet past the south curb of Madison street. On cross-examination plaintiff’s counsel asked the witness as to whether there was an alley running east and west south of Madison street, to which the witness answered that he was not sure. Counsel then asked the witness as to whether on a previous trial of the case he had stated that the streetcar was stopped alongside a building which probably went back to the alley and that the distance from the alley to the corner was 100 or 125 feet, to all of which questions the defendant objected on the ground that they were not contradictory of the witness’s instant testimony. The witness stated that he had made those answers. He then testified that when he saw the plaintiff, the latter was running. The plaintiff’s counsel asked him as to whether on the previous trial of the case he was asked the question “Could you tell whether he was walking or running?” and if he answered it “No, I couldn’t say that.” To this question there was no objection, and the witness, after looking at a picture, stated that he recalled that there was an .alley there, that the rear end of the streetcar, when it was first stopped, was about halfway from the corner to the alley, and that the rear end was about 50 to 55 feet south of the corner or about halfway from the alley to the corner. Counsel strenuously contends that the attempted impeachment was improper because the witness had stated that he was not absolutely sure there was an alley there, and that any attempted impeachment on the question as to whether an alley was there or not was on an immaterial matter. However, the matter involved was the position of the car at the time it stopped. The witness had testified on his direct examination that the streetcar, before the plaintiff attempted to board it, had proceeded about 60 feet and at the time when the streetcar had stopped after the accident its rear end was 10 to 15 feet south of the south curb of Madison street, which would have placed the rear end of the streetcar, at the time when it first stopped, 70 to 75 feet south of the south curb of Madison street. The evidence given by the witness at the first trial was that at the time when the streetcar first stopped the rear end was about halfway from the alley to the corner and that the distance from the alley to the corner was about 100 to 125 feet, which would place the rear end of the streetcar 50 to 60 feet south of the corner, and at the conclusion of his cross-examination the witness stated that when the streetcar first came to a stop the rear end was 50 to 55 feet south of the corner. The questions asked the witness with reference to his previous testimony were proper and were not on an immaterial matter, and in any case were not harmful to the defendant as the final testimony of the witness was in favor of the defendant’s position that the front of the streetcar when it had stopped was at the south curb line of Madison street.

On plaintiff’s cross-examination of Ryan, the conductor of the streetcar and a witness for the defendant, the following occurred, after the witness had stated “When I first saw him (plaintiff), maybe he had run two or three feet”:

“Mr. Reiff (counsel for plaintiff): Q. What?

“A. Two or three feet when I first saw him.

“Q. The street car moved two or three feet?

“A. Yes, sir.”

The witness, in response to a question, then said that at the previous trial the following question was asked of him and that he gave the following answer:

“Q. What happened then?

“A. Well, the streetcar started up and went about thirty or forty feet and I seen a man running from the store on the corner, running out to the street.”

Plaintiff’s counsel then attempted by various questions to get the witness to state as to whether the streetcar had moved two feet or forty feet, to all of which questions the defendant’s objections were sustained. The witness on further cross-examination stated that at the time of the accident the plaintiff had run 38 feet from the tavern before he attempted to board the streetcar and that the streetcar had traveled 40 to 50 feet before the accident occurred. The witness, in answer to plaintiff’s question, stated that at the previous trial the following question was asked and the following answer given:

“Q. Now, from the time he started to run the forty feet, up until he boarded the car, how far did the streetcar travel?

“A. Approximately five or six feet. That is about all, because he was running as the car was moving. It wasn’t going too fast. It didn’t take him too long to get out there.” The witness then testified that from the time he first saw the man up to the time of the accident the streetcar had moved 40 to 50 feet. The questions asked for the purpose of impeachment were proper and the witness admitted that the answers he had given on the previous trial were inconsistent with his present testimony. This was a proper matter for the consideration of the jury and was with reference to matter material to the issues before them.

Subsequently on redirect examination of the witness Lyons, counsel for defendant asked the following question: “What is your present recollection, as you sit there now, as to when you first saw this man attempting to board the car while it was in motion as to whether he was running or walking?” This question was objected to as improper redirect examination. In discussion in chambers vwith the court, counsel for the defendant insisted that since the witness had been questioned as to whether or not the plaintiff was running or walking and had been asked concerning his testimony at the previous trial, he then was entitled to have the witness reaffirm the testimony which he had given on direct examination. The court sustained the objection.

The defendant here contends that the court’s ruling was improper in that the testimony of the witness having been impeached by showing that he had made an inconsistent statement in the previous trial of the case as to whether the plaintiff was running or walking, defendant was entitled to have him clarify his statement. There is no question that where a witness admits declarations or statements imputed to him the witness should have an opportunity to give such reason or explanation in exculpation of his conduct as he might have, and to show the circumstances under which the contradictory statement was made. Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill. 202; Cal Hirsch & Sons Iron Co. v. Coleman, 227 Ill. 149; Walther v. Chicago & Alton R. Co., 188 Ill. App. 221. The proper way to rehabilitate a witness is to permit him to state any facts which will explain or reconcile the utterances or to show the meaning and relationship of each. It is not proper to ask a witness to repeat the statements he made on direct examination. Marquette Cement Mfg. Co. v. Williams, 132 Ill. App. 629.

The defendant also contends that the court erred in giving the following instruction:

“If you believe from the evidence that any witness in this case has knowingly and wilfully sworn falsely on this trial to any matter material to the issues in this case, as elsewhere defined in these instructions, then you are at liberty to disregard the entire testimony of such witness, except in so far as it has been corroborated — if you find it has been corroborated — by other credible evidence or by facts and circumstances proved on the trial.”

This instruction has frequently been before our courts and has been condemned in a number of cases. In Schneiderman v. Interstate Transit Lines, Inc., 401 Ill. 172, the Supreme Court again considered the instruction, and held that other instructions given in the case placed before the jury every issue and every fact material to the issues necessary to a recovery by the plaintiff or a finding in favor of the defendant. Substantially the same instructions considered sufficient by the court in that case were given in the case before us. The Supreme Court there stated:

“We are not receding from our position that the matters material to a lawsuit should be made known to a jury before such instructions are given, but we should also remember that jurors are presumed to have some intelligence, and we cannot go outside of the record to speculate upon what issues they might have had in mind when all of the issues considered by counsel on both sides of the case were presented to the jury and it was given an opportunity to measure the materiality of the issues, or what facts are material to the issues, by what is pointed out in other instructions in the case.”

The giving of the instruction here, considering the record, did not constitute reversible error. However, it might be an interesting matter for investigation, which would be psychological in its nature bordering on the pathological, as to what irresistible impulse seems to move trial counsel to insist on proffering this instruction in the light of the Supreme Court’s opinions. Scarcely a case is tried in which counsel for one side or the other does not offer this instruction. Professor Wigmore, referring- to the maxim falsus in uno, falsus in omnibus, has said (Evidence, 2d Ed., vol. 2, p. 449):

“It may be said, once for all, that the maxim is in itself worthless, first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in themselves.”

The defendant also complains that the court failed to give two instructions, mandatory in form, which it offered, one of which concluded that under certain conditions the jury should find the defendant not guilty, the other that the plaintiff could not recover. Three peremptory instructions were given on behalf of defendant. The practice of giving an nndne number of peremptory instructions containing the phrase “you should find the defendant not guilty” or its equivalent has been repeatedly condemned by our courts. In Stone v. Warehouse Cartage Co., 6 Ill.App.2d 229, we said:

“The giving of an inordinate number of instructions peremptory in form and containing the phrase ‘you should find the defendant not guilty,’ or its equivalent, has been repeatedly condemned by our courts, and it has been said that in a close case excessive repetition of such a phrase is reversible error. Loucks v. Pierce, 341 Ill. App. 253; Alexander v. Sullivan, 334 Ill. App. 42; Baker v. Thompson, 337 Ill. App. 327.”

The subject matter of the refused instructions was fully covered by the instructions given on behalf of the defendant. In Baker v. Thompson, 337 Ill. App. 327, the court said:

“Too often defense attorneys are prone to tender an excessive number of instructions, repeating the same proposition over and over, not with the honest design of informing the jury of the law, but with the thought of enforcing upon the minds of the jury the importance of their various defenses.”

See also Moore v. Daydif, 7 Ill.App.2d 534. The trial court’s ruling on the instructions was proper.

The defendant also complains that counsel for the plaintiff, when cross-examining a defendant’s witness, one Holmes, upon ascertaining that he had given a statement to the streetcar company, in the presence of the jury demanded that defendant give him this statement. The court thereupon had a conference with counsel in his chambers and the court ruled that the plaintiff had no right to the statement. After the conference the court instructed the jury to disregard anything that had been said about this matter by counsel. The plaintiff’s counsel then asked the witness as to whether the statement which he gave the defendant was a written statement, and on objection there was a further conference in chambers. After this plaintiff’s counsel asked the witness as to whether or not he had at any time given a statement to anyone that the man had been drinking, and at that time counsel for the defendant suggested that the question should also indicate as to whether the statement was either oral or written. The suggestion of counsel for defendant was incorporated in the question and the witness answered that it was a written signed statement. Subsequently on redirect examination by the defendant the witness stated that when he was interviewed in counsel’s office he had made reference to the statement. In support of its contention the defendant cites and quotes from Reinmueller v. Chicago Motor Coach Co., 341 Ill. App. 178, in which case this court affirmed the judgment of the trial court. It was not indicated that the quotation given by defendant as authority was from the dissenting opinion and was not in accord with the decision of the court. The defendant should have called this to our attention. The statement of the witness in the defendant’s file could not be used by it as evidence, and it could only be used by the plaintiff for impeachment under certain conditions. The authorities are not in accord as to whether a report on an accident made by an employee to his employer, and by the latter transmitted to his counsel for use in litigation, is a privileged communication. 146 A. L. R. pp. 976 et seq. Professor McCormick in his work on Evidence, sec. 100, p. 204 says:

“. . . It is usually held that an agent’s report to his principal though confidential is not privileged as such, and looked on as a mere pre-existing document it would not become privileged when sent by the client-principal to his lawyer for his information when suit is brought or threatened. The problem frequently arises in connection with proceedings for discovery of accident-reports by employees, with lists of eye-witnesses, and in connection with signed statements of witnesses attached to such reports or secured separately by investigators employed in the client’s claim department or by an insurance company with whom the client carries insurance against liability.

“Since a statement made by the client’s agent, on behalf of the client to the latter’s attorney would be privileged, it is an easy step to treat in the same way a report secured by the client from his employee for the purpose of submitting it to counsel in connection with an actual or anticipated claim or suit. Most of the decisions treat such special reports as privileged from discovery under the privilege for attorney-client communications. On the other hand, routine reports of employees made in the regular course of business, before suit is brought or threatened, have usually, though not always, been treated as pre-existing documents which not being privileged in the client’s hands do not become so when delivered into the possession of his attorney.”

In Walker v. Struthers, 273 Ill. 387, the court held that a party had no right to demand of opposing counsel written statements taken from the latter’s witnesses in preparation of the trial. The rules of the Supreme Court in force at the time when the instant case was tried provided that a party was not required to list as a part of the sworn list of documents material in the cause any “memoranda, reports or documents prepared by or for either party in preparation for trial, or to any communication between any party or his agent and the attorney for such party” (Rule 17 [Ill. Rev. Stats. 1953, ch. 110, §259.17]). In the rules of the Supreme Court in force January 1, 1956 it is provided that such memoranda, etc. shall not be required to be disclosed through any discovery procedure, and that they are privileged (Rule 19 — 5 [Ill. Rev. Stats. 1955, ch. 110, § 101.19 — 5]). See Chapman v. Gulf, M. & O. R. Co., 337 Ill. App. 611, and Eizerman v. Behn, 9 Ill.App.2d 263, opinion filed this day. Plaintiff’s demand for the statement was improper.

The defendant argues that the demand for the statement was made by the plaintiff knowing that he was not entitled to see it and solely for the purpose of prejudicing the defendant before the jury. The only way the defendant could be prejudiced would be if the jury believed that the statement, the contents of which they were prevented from knowing by the defendant through his objection, was detrimental to defendant’s contentions in the case before them. However, in this case the contents of the statement were brought out by the defendant on his redirect examination and were fully before the jury, and any error which defendant might have urged was thereby cured. Porter v. Terminal R. Ass’n of St. Louis, 327 Ill. App. 645. The court was not in error in denying defendant’s motion for a mistrial.

The defendant also complains that the plaintiff in his closing .argument to the jury improperly accused one of defendant’s witnesses of committing perjury, referring to the two versions given by him in the two trials of the case. Defendant again cites and quotes from Reinmueller v. Chicago Motor Coach Co., supra, as authoritative without calling attention to the fact that the quotation is from the dissenting opinion. We are in accord with the majority opinion in that case, where the court says:

“Several of the statements denounced are inferences which plaintiff’s counsel was entitled to deduce from the evidence. Wide latitude should be allowed in this regard. If the rule with reference to improper inferences were applied as strictly as counsel for defendants urge, it would have a tendency to deprive litigants of the right of having their cases argued, for the prudent attorney would in such case forego argument rather than risk reversible error. In Commonwealth Elec. Co. v. Rose, 214 Ill. 545, the court said at page 561:

“ ‘Counsel may arraign the conduct of the parties, and impugn, excuse, justify, or condemn motives, so far as they are developed in evidence, or assail the credibility of witnesses when it is impeached by direct evidence, or by inconsistency, or incoherency of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. “He may argue such conclusions from the testimony as he pleases, provided he does not misquote witnesses.” ... It has been said: “Just and fierce invective, when based upon the facts in evidence and all legitimate inferences therefrom, is not discountenanced by the courts.” ? ??

The judgment of the Circuit Court is affirmed.

Affirmed.

ROBSON and SCHWARTZ, JJ., concur.


source: Caselaw Access Project

author: JUDGE SCHWARTZ

license: Public Domain

text:
    Leo P. Orchel, Appellant, v. John G. Wittbold, as Surviving Trustee Under Deed in Trust Dated September 29, 1926 and Recorded September 30, 1926 as Document No. 9419714, et al., Appellees.
    Gen. No. 46,393.
    First District, Second Division.
    February 21, 1956.
    Released for publication April 3,1956.
    Ned Danger, of Chicago, for appellant; Sheldon Belofsky, of Chicago, of counsel.
    John Gutknecht, State’s Attorney of Cook County, of Chicago, for appellees; Gordon B. Nash, Vincent P. Flood, Charles D. Snewind, "William Sylvester White, Assistant State’s Attorneys, all of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order sustaining a motion to strike the complaint and dismissing the suit of plaintiff in which he seeks to invoke the powers of a court of equity to enforce what plaintiff claims is a tax lien on certain vacant property. The motion was made by the State’s Attorney of Cook County who was given leave to intervene.

The complaint relates to five lots. Taxes on these lots for the year 1951 being unpaid they were offered at public auction on February 9, 1953, and no one offering to pay the amount due on the property or to bid therefor, the property was duly forfeited and remained delinquent until October 14, 1953, at which time plaintiff purchased the property and was given a certificate by the County Collector evidencing such purchase. The amount of the taxes in arrears was approximately $90. In addition to the foregoing taxes there were unpaid general taxes and special assessments of approximately $2550. It is alleged in the complaint that the total market value of the real estate described is not more than $2050 so that the real estate is presently encumbered in an amount exceeding its value. Plaintiff in his complaint offers to take the property in payment and discharge of his lien and seeks a strict foreclosure of the real estate described. Such a decree would give title to plaintiff clear of any liens for unpaid taxes and would not be subject to any right of redemption.

The issue turns on construction of two sections of the tax law — Sections 728 and 753, Chapter 120, Illinois Revised Statutes 1953. Section 728 deals with regular public tax sales. Section 753 provides that:

“. . . if any person shall desire to redeem or purchase any tract of land or lot forfeited to the State he shall apply to the county clerk, who shall issue his order to the county collector, directing him to receive from said person the total amount of all taxes, statutory costs, interest prior to forfeiture . . . and forfeiture interest . . .

It was in accordance with this statutory directive that the County Clerk issued an order to the County Collector, directing him to receive from plaintiff the total amount of all taxes for the year 1951 on the lots which plaintiff was interested in purchasing. Plaintiff paid those amounts to the County Collector and did not pay any unpaid taxes that were not included in the order of the County Clerk; that is to say, he paid only the amount due because of the forfeiture for the year 1951. He received a certificate of purchase. Section 753 further provides as follows:

“Property purchased under this section shall be subject to redemption, notice, etc., the same as if sold at regular public tax sale.”

Plaintiff argues that because of the use of the word “etc.” in the Act he acquired all rights not specifically enumerated in Section 753 which he would have derived “at regular public tax sale”; that these rights are set forth in Section 728 and include the right to a lien. The State’s Attorney argues that the language quoted does not refer to sales under Section 728 or to the annual tax sale but refers to the redemption section, or Section 734 of Chapter 120. (That section gives no lien to a purchaser such as plaintiff here.) We think the position of the State’s Attorney in this respect is correct. To hold otherwise would be to give the abbreviation “etc.” a meaning beyond that of the words with which it is identified — “redemption, notice, etc.” If the legislature had such an intention it should have been expressed in specific language and not by the use of an abbreviation. That this was not the legislative intention may be derived from the fact that the language in Section 753 before quoted was in the statute prior to the time that lien upon purchase under Section 728 was provided for (Sec. 206 Revenue Act, Laws 1935). Plaintiff relies upon the broad language of Ziccarelli v. Stuckart, 277 Ill. 26 (1917). That case involved only the right of the property owner to redeem and was decided long before Section 728 contained any provision for a purchaser’s lien.

Assuming that plaintiff acquired a lien, there still remains for consideration the question as to whether he has the right, in the absence of a statutory provision specifically providing for it, to foreclose such a lien under the general powers of a court of equity. Under Section 728 a purchaser at a regular public tax sale pays forthwith the amount charged on such tract or lot and has ten days within which to pay all taxes charged on the land remaining due and unpaid. If he fails to complete his purchase by paying all back taxes the purchase becomes void but the Collector does not refund the amount paid in cash at the time of the sale. Instead, that amount is treated as a payment and is distributed to the taxing bodies as other collections are distributed. However, a lien remains on the land in favor of the purchaser until paid with interest at 5%. As we have said, no provision is made in the tax laws for the enforcement of this lien, and plaintiff relies on the general powers of a court of equity to provide a remedy. That question was raised and decided adversely to the plaintiff by the Third Division of this court in the recent case of Romain v. Fink, 5 Ill.App. 2d 323. (Petition for leave to appeal denied November 15, 1954.) The reasons there given are applicable here and are in our opinion conclusive.

Order affirmed.

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


author: JUDGE KILEY

text:
    Vincent J. Zapalski, and Marie B. Zapalski, Appellees, v. Underwriters at Lloyd’s, London (not Incorporated), and Chicago Metropolitan Home Builders Association, Appellants.
    Gen. No. 46,631.
    First District, Third Division.
    February 23, 1956.
    Rehearing denied March 21, 1956.
    Released for publication March 29, 1956.

      Lord, Bissell & Brook, of Chicago, for appellants; Stephen A. Milwid, and Wilbur S. Legg, both of Chicago, of counsel.
    Maxfield Weisbrod, and Boland Towle, both of Chicago, for appellees.
   JUDGE KILEY

delivered the opinion of the court.

We have granted a rehearing in this cause to give further consideration to the issues on appeal.

This is an action seeking recovery of $7,000 in Count I, of the complaint, against defendant Association for failure to sue defendant Underwriters upon an Honesty Bond under which plaintiffs claim benefits; and in Count II upon the bond against the Underwriters. Defendants filed a joint answer and special affirmative defenses relying upon the provisions of the bond to preclude liability. Plaintiffs’ motion to strike parts of defendants’ pleadings was sustained. Defendants stood upon their pleadings and the court entered judgment for $5,902.91, the sum stipulated to be correct if the court’s ruling was right.-

During the year March 1, 1952 to March 1, 1953 defendant Association was covered by a bond of Underwriters at Lloyd’s under which it was insured against misapplication of moneys by its member contractors. Plaintiffs in 1952 were owners of real estate in Homewood, Illinois. On January 21,1952 they made a contract with one Wenger for the building of a residence on the property at the cost of $14,300. On that date they paid Wenger $100 and about March 21, 1952, an additional $6,900. Wenger became a member of the Association about April 16, 1952. About October 8, 1952 plaintiffs learned that Wenger had abandoned the partially constructed improvement and had not applied the $7,000 they paid him, to the cost of the construction, labor and materials. They were required to expend $5,902.91 more than the contract figure in paying bills, discharging liens and in completing the house.

Plaintiffs reported Wenger’s misapplication to the Association and it gave notice to, and filed proof of plaintiffs’ loss with, Underwriters at Lloyd’s. Subsequently, on demand the Association refused to sue Underwriters for plaintiffs’ benefit. This action followed.

The principal question is whether the bond covered the misapplication by Wenger. Plaintiffs’ motion to strike defendants’ pleadings posed the question of law whether the pleadings showed that Wenger’s misapplication occurred before or after he became a “member” of the defendant Association, so as to bring the loss within the terms of the Honesty Bond.

The pertinent parts of the bond are (as rearranged by us for convenience):

“The Underwriters . . . agree to pay to . . . [the] Association . . . for the benefit of depositors or payors of . . . such amount ... as may be deposited with or paid to any Member [Sec. 3] . . . .

Section 2, Loss is covered under this bond only (a) if sustained through any act or acts committed by any Member while this bond is in force as to such Member. . . .”

The pertinent facts of the stricken pleadings, taken as true on this appeal, are that Wenger deposited in a bank the $7,000 paid him by plaintiffs and that prior to April 16, 1952 he withdrew and applied to his own use all but $13.50 of that deposit. Because the money was given Wenger before he became a member on April 16, 1952 defendants argue that the amount of the loss, except for $13.50 which remained on deposit after he became a member, was not covered by the bond. They say the intention of the makers of the bond was not to protect people dealing with “competing nonmembers” as Wenger was prior to April 16, 1952.

The defenses are to be construed most strongly against defendants until a verdict on the merits. Sargent Co. v. Baublis, 215 Ill. 428, 430; Wright v. Federal Wrecking Co., 331 Ill. App. 231, 238. Under this rule we think the special defenses do not show nonliability of defendants. The defense shows merely that the money “deposited with or paid to” Wenger was deposited by him in a bank and all but $13.50 withdrawn for his own purpose by April 16, 1952 when he became a member. The defense does not show that he did not have $7,000 in funds elsewhere with which to perform his contract obligations. So far as disclosed Wenger may have withdrawn the funds and placed them on deposit in another bank. Or he may have had similar contracts and used the $7,000 he deposited to finance other work, depending on money from the other work to be paid to him in time to finance plaintiffs’ project. Or he may merely have withdrawn the money and put it into a safe deposit

In this view we cannot agree with defendants’ contention that plaintiffs’ relation with Wenger was with a competing nonmember. So far as the pleadings show Wenger still had plaintiffs’ money when he became a member.

The next question is the meaning of the term “deposited with or paid to any member.” Defendants claim this means the act of depositing or paying, i. e., the act of plaintiffs in giving the money to Wenger. Presumably the trial court construed the term “may be deposited with” to mean “may be on deposit with.” This, we think, was a reasonable construction. There is no need to determine whether a strict or liberal rule of construction should be applied. In common usage the terms “deposited with” and “on deposit with” are used interchangeably in referring for instance to money in a bank.

There is no persuasive reason advanced in this court why the trial court should have adopted the construction for which defendants contend. The term is ambiguous and the construction adopted is consistent with express and implied intention of the parties to the contract, gleaned from a fair reading of the instrument. The express intention of the parties was to indemnify depositors of earnest money who suffered a pecuniary loss through the misapplication of funds by a member. Underlying this indemnity was a benefit extended for the purpose of assuring honest treatment to those whose money was misused by members. This served to enhance the reputation and prestige of the Association.

We think it is reasonable to presume that the Association must have foreseen situations like the instant one, in which contractors would become members while they had on deposit money of others. Its reputation and prestige would suffer should dishonesty occur in these cases as it would in those which defendants now contend were the only ones within the intention of the parties. We think that the trial court did not err in construing the bond as it did. The term under discussion therefore can mean that the money was “deposited with,” in the sense of “on deposit with,” Wenger when he became a member April 16, 1952.

It will be noted moreover that Section 2 does not limit losses covered to moneys accepted by a member while a member. Neither does the statement of the agreement in the first sentence of the bond clearly limit the losses covered in Section 2 to moneys which a member accepted after becoming a member. This is a further instance where defendants could have clearly limited the coverage to correspond with their present contention by the use of appropriate language.

Defendants also argue that the coverage under the bond is limited to “wrongful misapplication” after Wenger became a member and is consequently limited to $13.50. We have concluded that even had Wenger withdrawn all $7,000 of the funds turned over to him before he became a member, there need not have been a wrongful misapplication at that time for that reason alone. Even if we assume that Wenger had used the money withdrawn for his own purposes, so far as shown there may have been ample funds of Wenger on deposit elsewhere on April 16, 1952 which he intended to apply to plaintiffs’ contract purposes. The wrongful misapplication in that event would occur when that intention was replaced by the intention not to pay the bills and thus come within the “Loss” provision of Section 2 of the policy. Here again we construe the defense against the defendants. The hypothetical event we have posed comes within the meaning given the term “wilful misapplication” in Humbird Cheese Co. v. Fristad, 208 Wis. 283, 242 N. W. 158, cited by defendants.

For the reasons given we are of the opinion that plaintiffs were depositors of money with Wenger, a member of the Association, and suffered a loss through an act of a member while the bond was in force as to that member and accordingly came within the class covered by the bond. We conclude that the court ruled properly on plaintiffs’ motion and the judgment is affirmed.

Judgment affirmed.

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

LEWE, P. J., took no part in the rehearing.


text:
    Sidney Foreman, and Ruth Foreman, Appellees, v. Henry K. Holsman, William T. Holsman, H. G. Droll, L. E. Adams, Jr., and Trust Company of Chicago, Appellants.
    Gen. No. 46,686.
    First District, Third Division.
    February 23, 1956.
    Released for publication March 29, 1956.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for Trust Company of Chicago, appellant; Vernon M. Welsh, and Don H. Reuben, both of Chicago, of counsel; Horace A. Young, of Chicago, for H. G-. Croll, and L. E. Adams, Jr., appellants; Madigan and Thorsen, of Chicago, for Francis Tyler Pierce, intervening petitioner-appellant; Robert Thorsen, of Chicago, of counsel.
    Moody, Foster & Barrett, and Crowley, Sprecher and Weeks, all of Chicago, for appellees; Edward W. Barrett, and Robert A. Sprecher, both of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is an action under Section 37 of the Illinois Securities Act of 1919 as amended (Ill. Rev. Stat. 1951, Chap. 121%, Section 97 (1)) to recover an investment represented by a trust certificate allegedly sold in violation of the act. The issues were referred to a master in chancery who found for plaintiffs and recommended a decree in their favor. The chancellor approved the master’s report and entered a judgment, according to the recommendation, for $6,000 plus $1,500 attorneys’ fees. Defendants have appealed.

The Community Development General Trust, referred to herein as the General Trust, was established for the declared purpose of sponsoring low cost housing developments. The means used was the creation of special trusts for specific projects. On January 23, 1950 the Jackson-Laramie Special Trust, referred to herein as the Special Trust, was established for a development on the West Side of Chicago. On October 27,1950 plaintiffs signed a Mutual Ownership Application and deposited $100 earnest money with defendant Adams. On November 3rd plaintiffs were notified in a letter from the Special Trust Service Agents, by defendant Croll, that their application for mutual ownership and a lease had been approved. On November 10, 1950 plaintiffs signed a Mutual Ownership Agreement and gave Croll a check for $6,000, taking back the earnest money. June 12, 1951 Certificate Number Five for 60 shares of beneficial interest in the Jackson-Laramie Garden Homes Mutual Ownership Trust was issued to plaintiffs by defendant Trust Company as trustee.

The Special Trust development contemplated 352 apartments at a cost of $4,200,000. Approximately $600,000 in certificates were issued for interests in the Special Trust and, of these, certificates of the value of about $140,000 were used to acquire the land. Difficulties arose in the development of the project which eventuated in the bankruptcy of the General Trust and the bankruptcy of defendants Holsmans’ architectural firm, prime promoters of the General Trust housing scheme.

Plaintiffs learned that the contemplated buildings were not proceeding beyond foundations. They consulted an attorney who discovered the certificates which were issued had not been registered under the Illinois Securities Act. This suit followed a written demand for the return of plaintiffs’ money.

One of the contentions made in this court by defendants is that plaintiffs extinguished their right of action under the Illinois Securities Law by releasing defendants from liability.

In the Mutual Ownership Agreement signed by plaintiffs on November 10, 1950, there appears in the second paragraph the following:

“WHEREAS, I have examined the Trust Agreement for, and desire to participate in the mutual development and ownership of said property according to the said Trust Agreement, on the condition that inasmuch as said Trust, its officers and agents, and the undersigned and others are joining only in the acquisition, development and management of real estate they hereby release each other from the provisions of the Illinois Securities Act;”

In the certificate which was issued to plaintiffs June 21, 1951 there appeared the following paragraph:

“Inasmuch as the holder of this certificate and like certificates and the issuer and its officers and agents, and the Managing Trustees and their agents, have a mutual interest in the welfare of the Trust in consideration of and as a condition of issuance of this certificate, they hereby release each other from any requirements of, or liability under, the Illinois Securities Law.”

The question is whether these provisions were effective to preclude plaintiffs from recovery in this action. Defendants’ answer pleaded the “release.” The master found that the purposes of the Illinois Securities Act precluded prior waiver of liability thereunder and that “an attempt to waive” was against public policy. We think that the decision of our Supreme Court in Cerny-Pickas & Co. v. C. R. Jahn Co., 7 Ill.2d 393 is decisive of the question and that our opinion must be that the release was effective to bar plaintiffs’ action under Section 37.

In the same case this court in reversing a judgment, in favor of a lessee in a lessor’s suit for damages from fire, held because of considerations of public policy, that a lease could not be construed to exempt the lessee from liability for its negligence in violating two fire prevention ordinances of the City of Chicago. (347 Ill. App. 397.) On retrial the lessor recovered and this court affirmed. (4 Ill.App.2d 164.) The Supreme Court reversed and remanded with directions to dismiss. (7 Ill.2d 393.) It held that the lease construed as a whole exempted the lessee from liability “for loss by fire regardless of the cause of the fire. . . .” (Page 398.)

The court said at page 396:

“provisions which relieve the lessee from responsibility for its own negligence with respect to fires have been held valid contracts between private individuals with reference to private interests and not against public policy. [Citations.] That one of the grounds of negligence charged in this case was the lessee’s failure to comply with the building ordinances in making alterations in the building is not, we think, of controlling significance.”

The ground referred to was the violation by the lessee of the fire prevention ordinances. In the course of the opinion the Supreme Court stated that if the lease contained an express provision of exoneration, “that would be the end of the matter.” (Page 396.)

Thus an exoneration from liability for negligence is valid even though the negligence arose from violation of two ordinances which are clearly fire prevention ordinances designed for public safety; one regulated the placing of gas heaters and the other required covering of plywood partitions with incombustible materials. We conclude that with greater cogency the instant release is effective where the liability exonerated arises from a statute to protect persons from loss of their money through sale of unregistered securities.

Protection of the public’s safety from fire is of a higher order of public interest than protection of personal property. The lease in Cerny-Pickas was a private contract with reference to private interest involving public law. The instant transaction also involved private contracts referring to private interests involving public law. There was no express provision of exoneration in the lease in Cerny-Pickas; the instant “release” is contained expressly in the Mutual Ownership Agreement and in the Certificate. The parties in Cerny-Pickas dealt on an equal plane and the record before us does not disclose the parties were not “on a roughly equal” contracting plane. This court refused to construe the Cerny-Pickas lease to provide exoneration from liability for violating positive legal duties, because of considerations of public policy; the Supreme Court thought the fire prevention ordinance violations “not of controlling significance.”

We see no need of discussing at length the distinction, urged by plaintiffs, between “release-from-negligence” cases and “waiver-of-statutory-benefit” cases as plaintiffs describe them. Plaintiffs argue the public policy in each category is different.

Accepting the distinction urged as valid, for this purpose only, the instant transaction would be valid as a “release-from-negligence” case since it is not against public policy (Cerny-Pickas) and there is nothing in the record to show that the parties were not “on roughly equal bargaining terms.”

Neither would the transaction be invalid as belonging to the category of “waiver-of-statutory-benefit” cases. The remedy invoked by plaintiffs under Section 37 is “contractual in nature,” Rice v. Bogert, 272 Ill. App. 292; it is based on a “theory of rescission,” Hammer v. Sanders, 6 Ill.App.2d 346; rescission under Section 37 may be waived by selling the stock and keeping the proceeds, Weisbrod v. Lowitz, 282 Ill. App. 252; any sale in violation of the section is not void but voidable, Pelham v. Hopper, 302 Ill. App. 51; under Massachusetts law contracts “void at the instance of the purchaser,” as in Illinois, may be affirmed or ratified, Commissioner of Banks v. Chase Securities Corp., 298 Mass. 285, 10 N.E.2d 472, 53 C. J. S. Licenses § 77; and the action is barred when the tender required is not made, Hammer v. Sanders, 6 Ill.App.2d 346.

We Brink the remedy is private though it may be indirectly related to the general purpose of the act. And again assuming the transaction is a “waiver-of-statutory-benefit” case we see no substantial difference from the Cerny-Pickas case. Here plaintiffs relinquished the benefit of a new cause of action created in Section 37 in the form of a rescission suit. In Cerny-Pickas the benefit is not a creation in the ordinances of a new remedy as in Section 37, but under Illinois law the result of a violation of the ordinances is to change the common law remedy by eliminating the necessity of proving prima facie the essential common law element of negligence. The ordinances are therefore laws which confer a benefit and it and the benefit under Section 37 are both indirectly related to the common good.

The remedy under Section 37, left in control of the party complaining, can hardly be said to be for the public in any significant sense. It can hardly be either that the legislature, in leaving the choice of rescission to the purchaser, intended release would violate public policy. The legislature provided express severe penalties for misdemeanors which it defines, for violation of the act. The Federal Securities Act expressly voids waivers. There is no such provision in the Illinois Securities Act.

The Supreme Court in Cerny-Pickas has decided that agreements to exonerate from liability for negligence in violating fire prevention laws are valid. We conclude that the release in the instant case bars plaintiffs’ action.

Judgment reversed.

FEINBERG-, J., concurs.

LEWS, P. J., took no part.


author: JUDGE REYNOLDS

text:
    In Matter of Estate of Charles F. Drennan, Deceased. B. Homer Drennan and Donald H. Drennan, Individually and as Executors of Last Will and Testament of Charles F. Drennan, Deceased, Petitioners-Appellees, v. Katie M. A. Peck, Objector-Appellant.
    Gen. No. 10,020.
    Third District.
    February 23, 1956.
    Rehearing denied March 22, 1956.
    Released for publication March 22, 1956.

      S. S. DuHamel, and Thomas W. Hoopes, both of Springfield, for objector-appellant.
    Chapin & Chapin, of Springfield, for petitionersappellees; John R. Chapin, and Charles A. Chapin, both of Springfield, of counsel.
   JUDGE REYNOLDS

delivered the opinion of the court.

This case arises in the settling up of the Estate of Charles F. Drennan in the County Court of Sangamon County. Charles F. Drennan left surviving him two sons, Donald H. Drennan and B. Homer Drennan, and one daughter Katie Peck. After their father’s death, the two sons, who were also the executors of the estate, filed an accounting as surviving partners of an alleged partnership with their father in farming operations covering a period of from 1941 to the death of the father in 1949. In the original accounting, the share of the estate in the alleged partnership business was shown to be $8,333.85. Later, the brothers filed an amended petition showing that because of certain errors in their original accounting, they had employed a certified public accountant, one Raymond Rickbeil, to audit the books and accounts of the business conducted by the father and two sons from February 27, 1941, the commencement of the alleged partnership to March 8, 1950. The audit of Mr. Rickbeil showed that there was due to the Estate of Charles F. Drennan, deceased, the sum of $15,637.65, with interest at the rate of 5% from March 8, 1950. B. Homer Drennan and Donald H. Drennan, as claimed surviving partners offered to pay to the Executors of the estate of Charles F. Drennan, deceased, the said sum of $15,637.65, with interest from March 8th, 1950. To the amended petition Katie Peck, the sister, filed an answer denying the existence of any partnership; that the audit was made with her consent or approval; that the amount shown in the amended petition as due the estate of her father, was correct, and filed a counter-petition asking for an opportunity to examine the books and records. The Judge of the Probate Court found that there was a partnership between the father Charles F. Drennan and his two sons, B. Homer Drennan and Donald H. Drennan; that the equity of the estate of Charles F. Drennan in said partnership to be that disclosed by the audit of Raymond Rickbeil, C. P. A., namely $15,637.65, and ordered that said amount with interest from March 8, 1950, be accepted by the Executors, in full of the interest of the decedent in the partnership. Katie Peck took an appeal from this order to the Circuit Court. Later, Katie Peck made a motion in the Circuit Court that the Court appoint a referee and that the cause be referred to such referee to take testimony and report the same in writing with his conclusions of law and fact to the Court. A master in chancery was appointed with instructions to report his findings and conclusions on the question as to whether or not there was a partnership. The Master found there was a partnership, and his report was approved by the Circuit Court and that Court found:

1. That at the time of the death of Charles F. Drennan he and his sons B. Homer Drennan and Donald H. Drennan were engaged in the business of farming and raising livestock as partners and had been so engaged since February 1941 and that the business at the time of the death of Charles F. Drennan was a partnership.

2. That the value of the interest of said Charles F. Drennan in the said partnership at the time of his death, plus his share of the profits to March 8, 1950 was $15,637.65, which amount should draw interest at the rate of five per cent per annum from March 8,1950 until paid, and that amount with interest having been paid by the surviving partners to the Executors of the estate, the Executors were authorized to receive said amount in full payment of the interest of Charles F. Drennan in said business.

From the judgment of the Circuit Court, the objector, Katie Peck has appealed to this Court.

While the appeal lists six points, actually the only point involved is whether or not a partnership existed. In determining the question as to whether there was a partnership, it is necessary to consider not only the relationship between all the parties, but the method of operation of the business involved, and how the profits of the same were distributed. Charles F. Drennan was an elderly man, but seemed to be a good administrator and manager of farming operations. B. Homer Drennan, one of the sons, took little part in the farming and livestock raising, and lived in Chicago. The other son, Donald H. Drennan, was actively engaged in the business with his father. Donald H. Drennan drew a salary of $150 per month, although the father Charles F. Drennan and the other son drew no salary at any time during the 10 years of operation. The land farmed consisted of the land owned by the daughter Katie Peck, that owned by Donald H. Drennan and that owned by B. Homer Drennan, approximately 750 acres. Katie Peck leased her part of the land to her father for a cash rental of $800.00 a year. The livestock and the farm machinery and equipment on the farm, were owned by the two brothers B. Homer Drennan and Donald H. Drennan, under an agreement between themselves and the father dated February 27th, 1941. The father Charles F. Drennan entered into an agreement with his sons whereby he was to have control and operation of the farm equipment, livestock, etc., for and during his lifetime. He was to receive $100 per month for his services, with the net proceeds of the operation to become the property of the sons. There is no record that the monthly payment of $100 was ever made to him at any time during the operation of the business.

The evidence shows that the whole farming operation was operated as a joint venture. There was one bank account and all proceeds of the operation were deposited in this account and all expenses were paid out of this account. During the years of operation, the old machinery which was the property of the two brothers, B. Homer Drennan and Donald H. Drennan, was traded in on new, new machinery was bought, livestock was traded and other livestock bought, and all-this operation was conducted in the name of what Donald H. Drennan called the “Special Account!’ Profits of the business were drawn out by the three, from year to year, and the audit of Mr. Rickbeil shows that over the years, it averaged one-third to each. If one overdrew one year, he drew less the next year, so that in the long run, each received as his share, one-third. The three of them, over the ten year period, each received as his share, approximately $80,000.00. Bach year in January, a computation, or what Donald Drennan called an equalization, was made and each one of the three got his share, based upon what was due after computing what had been drawn by each, and equalizing it. As Donald H. Drennan testified, “Sometimes somebody had withdrawn more money than his share. When this was done, he had to watch himself the next year. Bach of us expected to and finally did get an equal amount of money during the year except for the exception I mentioned, if he got too much the next year he got less.” In other words, withdrawals were balanced against shares and balanced, either in January of each year, or within the next year or so. At the end of the ten years, each had withdrawn about the same amount. This evidence is undisputed, and shows conclusively that there was a working arrangement between the father and the two sons to share equally between them the profits of the business, as partners. The objector-appellant has no interest in the drawing account arrangement and has no right to object. That matter only affects the amount due each.

It has been held that sharing in the profits of a joint venture is a test as to whether or not such an arrangement is a partnership. Fougner v. First Nat. Bank of Chicago, 141 Ill. 124; State Nat. Bank v. Butler, 149 Ill. 575; Leeds v. Townsend, 228 Ill. 451; Parish v. Bainum, 306 Ill. 618. The requisites of a partnership are, that the parties must have joined together to carry on a trade or venture for their common benefit, each contributing property or services and having a community of interests in the profits. Meehan v. Valentine, 145 U. S. 611.

Written articles of agreement are not necessary to prove a partnership, since the relationship may exist under a verbal agreement. People v. Sholem, 244 Ill. 502; Haug v. Haug, 193 Ill. 645; Bopp v. Fox, 63 Ill. 540. The existence of a partnership may be implied from circumstances. Haug v. Haug, 193 Ill. 645; Bruen v. People, 206 Ill. 417.

In the case of Einsweiler v. Einsweiler, 390 Ill. 286, that court citing with approval People v. Sholem, 244 Ill. 502, said: “It is well settled in this State that written articles of agreement are not necessary, but that a partnership may exist under a verbal agreement, and circumstances may be sufficient to raise an inference of such an agreement.”

It is well settled that a partnership may exist though the partners’ contributions, capital and services differ in amount and nature. Salter v. Condon, 236 Ill. App. 17; Carter v. Wright, 275 Ill. App. 224.

It is true that no partnership income tax return was made, but this is not conclusive. The acts of the three men over a period of approximately ten years, the dividing equally of the profits and all the circumstances in connection therewith, seem conclusive that a partnership in fact existed. We have carefully examined the entire record and are of the opinion that the trial court’s finding was correct. The decree of the Circuit Court is affirmed.

Judgment affirmed.


author:
JUDGE BEYNOLDS
      HIBBS, P. J.,

text:
    Charles Taylor and Bertha Taylor, Plaintiffs, Bertha Taylor, Plaintiff-Appellant, v. John Hancock Mutual Life Insurance Company, Defendant-Appellee.
    Gen. No. 10,041.
    Third District.
    February 23, 1956.
    Behearing denied March 23, 1956.
    Beleased for publication March 23, 1956.

      HIBBS, P. J., dissenting.
    John F. Began, Jr., and Francis B. Wiley, both of Decatur, for plaintiff-appellant.
    James S. Baldwin, and John W. Evans, both of Decatur, for defendant-appellee.
   JUDGE BEYNOLDS

delivered the opinion of the court.

This is a suit to recover on an accident insurance policy, issued by the John Hancock Mutual Life Insurance Company covering one Frank Owen, deceased. The plaintiffs were Charles Taylor and Bertha Taylor, but the parties stipulated that Bertha Taylor was the named beneficiary. The policy was a Group Insurance Policy issued to Chambers, Bering, Quinlan Company, of Decatur, Illinois, covering its employees, against bodily injuries sustained solely through external, violent and accidental means, directly or independently of all other causes. Frank Owen was an employee of the Chambers, Bering, Quinlan Company, at the time of his death. The amount of the policy was based upon the hourly earnings of the employee, and in the case of Owen, was the maximum under the policy, or $2000 for death.

All the facts were stipulated, and the case was tried before a court without a jury. The death of Frank Owen came about as follows: One John Louis Owens, who was not related to Frank Owen, owned a home in Decatur, Illinois. Some time before the death of Frank Owen, J ohn Louis Owens and Frank Owen had agreed to burn the home of John Louis Owens, for the insurance. Later another man, Logan Brooks became one of the plotters, and the three of them were implicated in the arson plot. On the night of Frank Owen’s death, the three of them carried two five-gallon cans of gasoline into the house and poured it over the floors with the intention of igniting it and burning the house. After the gasoline was spread through the house, Frank Owen asked John Louis Owens if he could have some of the bed spreads in the home. Upon being told he could have the bed spreads, he went back into the house to get them. There was a gas heater in the house with a pilot light burning. Whether or not the gasoline caught fire from the pilot light or from some other cause, is not known, but while Frank Owen was in the home to take some of the bed spreads, the gasoline caught afire and Frank Owen was trapped in the home and burned to death.

The insurance company denied liability, and suit was brought. The trial court found for the defendant, and entered judgment in favor of the defendant. From that judgment the plaintiffs appeal to this court.

The question in this case is whether or not the deceased, Frank Owen, came to his death as a result of bodily injuries, sustained solely through external, violent and accidental means, directly and independently of all other causes, while an employee of Chambers, Bering, Quinlan Company. That is the coverage of the policy. With the facts undisputed, this question can be narrowed. He came to his death as a result of bodily injuries. These injuries were sustained through external and violent means. He was an employee at the time of his death of Chambers, Bering, Quinlan Company. These matters being admitted by all parties, the question remains, “did he come to his death, solely through accidental means, directly and independently of all other causes.”

The insurance company takes the position that the deceased was engaged in an unlawful act, and that the insured, having come to his death by and through means which were wilful, voluntary, intentional and designedly employed by him in committing the crime of arson, his death was not “as a result of bodily injuries sustained solely through external, violent and accidental means, directly and independently of all other causes.” The plaintiffs contend that even though the insured was engaged in an unlawful act, that that would not defeat the policy. That the fire was the sole and proximate cause of his death and that the conditions which created the fire, namely the spreading of the gasoline, and the presence of the pilot light, was not the immediate cause of the death, but that the fire itself, which apparently was accidently started, was an accident, and therefore the company was liable.

The theory of the insurance company would seem to be that the whole transaction, the plot to burn the house, the carrying in of the gasoline, the spreading of the gasoline about the house, and the subsequent fire, all were part of an illegal act and must be treated as a single happening. In a way this position is that the deceased, by his actions caused his own death and that the death because of the spreading of the gasoline, with the intent to burn the house, was in effect, with the design and aid of the deceased. The intention to pilfer and burn was there. But it could not be seriously contended that the deceased intended to burn himself to death. That part was accidental. While he was pilfering the bed spreads, the fire broke out unexpectedly and trapped him in the burning house. The mere fact that he and the others intended to burn the house later, would not alter the facts that the fire started before he or they intended it should. No person would make all preparations to incinerate himself, unless mentally unbalanced, and there is nothing here to indicate an unbalanced mind. He was a criminal engaged in a criminal act, but not a suicide. Unless the preparations for the burning of the house can be considered as all part of the one happening, the death of Frank Owen must be considered an accident, and not part of the plans of the conspirators. The very fact that he was engaged in taking the bed spreads, would negative the theory of suicide. He was to share in the insurance money, and thought to add a little more by taking the bed articles. While his motives were intentional, mercenary and criminal, he intended to profit, not lose his life.

The defendant cites the case of Wayne v. Travelers Ins. Co., 220 Ill. App. 493, where the court laid down the rule that “where the means are voluntary and intelligent and the act performed without error, even though death should unexpectedly result, death is not effected by accidental means.” In this case, the court also says, quoting from the case of Riley v. Interstate Business Men’s Acc. Ass’n (Iowa), 152 N. W. 617: “Thus it is apparent that to entitle one to recover, under a policy like the one in question, it is not sufficient to show that the death was accidental. Death is the result of some precedent act or condition. It is traceable to some cause. It is not sufficient, to make the cause accidental, that it appear that the resulting death was unanticipated, unforeseen, and not expected as a result of the act done. It must appear that that which happened to produce the result happened through accident, in order that the proper foundation may be laid for the recovery.” In considering that case, unless the theory of the defendant that it was all one act, is adhered to, it must be admitted that the unexpected and premature starting of the fire was accidental.

The case of Hutton v. States Acc. Ins. Co., 267 Ill. 267, is cited by the defendant. That case was one where a person started a fight, and had his leg broken in the fight. The court held there that an effect which is the natural and probable consequences of an act or course of action cannot be said to be produced by accidental means. That is materially different from the case here. In that case, the person starting the fight voluntarily and intentionally placed himself in a position where he might expect to be injured. There the plaintiff knew when he started the fight that he might be injured. Here, the deceased, while placing the inflammable materials in the house, would have not been injured except for the unexpected breaking out of the fire while he was still in the house. The deceased here had no intention of being in the house when the fire started. His plain intentions were to get the bed clothing and be out when the fire was started. The Hutton case cites two cases, one where the insured, a man named Lovelace, attempted to eject a man from the office of a hotel, using only his hands to eject the man. The man drew a pistol and shot him. The court in that case held that the shooting of Lovelace was an accident and not a risk voluntarily assumed, since he attempted to eject the other person without knowing that he was armed. In the other case, both men were armed, and became involved in a quarrel, and the insured was shot. There the court held that the shooting of the insured was not occasioned by accidental means, for the reason that an accident may be said to be an unforeseen and unexpected event of which the insured’s own misconduct is not the natural or proximate cause.

This same rule is laid down in the case of Cory v. Woodmen Acc. Co., 333 Ill. 175. In that case, the court held that death from shooting was not accidental, where the insured was shot while he was the aggressor in a fight and made advances toward his adversary after the latter had warned him he would be shot if he did not keep away, as under such circumstances it cannot be said that the shooting was unforeseen and the result flowing therefrom could not be held to be due to an accidental cause.

The defendant company claims that the death of Frank Owen was caused by his own criminal act. A number of cases from other jurisdictions are cited, but only one Illinois case. That is the case of Kneedler v. Bankers’ Acc. Ass’n, 188 Ill. App. 293. In that case it was stipulated that the plaintiff received an accidental injury while engaged in and assisting in cockfighting. The court in that case said: “We have held that the mere fact that a person insured against accidental injury received such an injury while in the commission of an unlawful act does not necessarily preclude him from recovering on his policy against the company issuing the same.”

In considering a case of this kind, the court must inevitably consider the “proximate cause.” The cause of an injury has been defined by Illinois courts, as “that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act.” Phillabaum v. Lake Brie & W. R Co., 315 Ill. 131. In that case the court said: “An act may furnish the occasion for another act, and such second act may be the cause of an injury without the first act in any manner being a contributing cause of such injury. The second act may be the result of some intervening cause in no manner flowing from the original act but which cause is given an opportunity to operate through the occasion furnished by such original act.”

In the case of Illinois Cent. R. Co. v. Oswald; 338 Ill. 270, the court there in defining “proximate cause” said: “The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as the result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which might result from his act. If the negligence does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury. (Hartnett v. Boston Store, 265 Ill. 331; Chicago Hair and Bristle Co. v. Mueller, 203 Ill. 558.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Seith v. Commonwealth Electric Co., 241 Ill. 252.) One act may furnish the occasion for another act, and such second act may be the cause of an injury without the first act in any manner being a contributing cause of such injury. The second act may be the result of some intervening cause in no manner flowing from the original act but which cause is given an opportunity to operate through the occasion furnished by such original act. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. Phillabaum v. Lake Erie & Western Railroad Co. 315 Ill. 131.”

This doctrine is affirmed in Briske v. Village of Burnham, 379 Ill. 193, where the court says: “If a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury. (Citing authorities.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes a direct and immediate cause of the injury.”

Following the doctrine of the cases cited, this court must hold that the fire was the proximate cause of the death of Frank Owen. The plot to burn the house, the carrying in and spreading the gasoline about the house created the condition, but the fire caused the death, and the fire was an accident in that it occurred before the deceased or his fellow arsonists intended for it to occur. As was held in the case of United States Mut. Acc. Ass’n v. Barry, 131 U. S. 100, if an act is performed with the intention of accomplishing a certain result, and if, in the attempt to accomplish that result, another result, unintended and unexpected, and not the rational and probable consequence of the intended act, in fact occurs, such unintended result is deemed to be caused by accidental means. The fire was intended, but not at that time. It was not the rational and probable consequences of the intended act, but was another result, unintentional and unintended.

The judgment of the County Court of Macon County is reversed.

Reversed.

HIBBS, P. J.,

dissenting.

The policy in this case provided coverage for an injury or death “suffered as the result of bodily injuries sustained solely through external, violent and accidental means independently of all other causes.” The injury and death of the insured resulted solely from the fire and explosion of the gasoline he himself spread and feloniously intended should be ignited to destroy the dwelling, and which was ignited and destroyed it. The resulting death of the insured cannot be said to have been either caused “solely ... by accidental means, or independently of all other causes.”

It may be conceded the deceased in the commission of the unlawful act did not intend to cause his death but did intend to survive and collect his share of the insurance. However, his act of going into the dwelling after he had assisted in spreading the gasoline to remove some bed clothes for himself before the building was ignited was so inseparably connected with the arson plan and conspiracy in conduct and timing that there is no occasion for the discussion of proximate cause. The intendments of our criminal code are such that to permit a recovery under the facts in this cause would be contrary to the public policy of the State. (Bradley v. Fox, 7 Ill.2d 106, 23 A.L.R.2d, p. 1106.)

Although the beneficiary under this policy is guiltless, I do not believe she should profit by reason of the fact that the policy holder lost his life while engaged in a felonious offense contrary to the criminal statutes of this State.

I would affirm the judgment of the trial court.