author: JUSTICE EOVALDI

text:
    William Johnson, Administrator of Estate of Marian Johnson, Deceased, Plaintiff-Appellee, v. Chicago & North Western Railway Company, Defendant-Appellee, and Oliver E. Fraser, Administrator of Estate of Ethel E. Mullins, Deceased, Defendant-Appellant. William Johnson, Administrator of Estate of Marian Johnson, Deceased, Plaintiff-Appellant, v. Chicago & North Western Railway Company, DefendantAppellee, and Oliver E. Fraser, Administrator of Estate of Ethel E. Mullins, Deceased, Defendant-Appellant.
    Gen. Nos. 10,863, 10,874.
    Second District.
    March 2, 1956.
    Rehearing denied March 26, 1956.
    Released for publication March 28, 1956.

      Maynard & Maynard, of Rockford, for defendant-appellant ; James F. Maynard, of Rockford, of counsel.
    Sears and Streit, of Aurora, and John G. Boyle, of DeKalb, for William Johnson, plaintiff-appellee, and plaintiff-appellant; Edward F. Streit, of Aurora, and James M. Drake, of Chicago, of counsel.
    Lowell B. Smith, of Sycamore, and Edward Warden, and John H. G-obel, of Chicago, for Chicago & North Western Railway Co., defendant-appellee; John H. Gobel, of Chicago, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

This is a suit brought by the administrator of the estate of Marian Johnson, a grandchild, age 8, against the estate of her grandmother, Ethel Mullins, age 67, and the Chicago & North Western Railway Company. Both suffered fatal injuries when Mrs. Mullins on the 15th day of December, 1951, drove an automobile in which Marian was riding past an operating wig-wag signal onto the Sixth Street Railroad crossing in DeKalb, Illinois, and in front of a clearly visible oncoming freight train.

Trial in the circuit court of DeKalb County, Illinois, resulted in jury verdicts of not guilty as to the North Western and a verdict of $11,500 against the defendant, Oliver E. Fraser, administrator of the estate of the grandmother. Subsequent motions were overruled and judgment was entered in favor of the plaintiff and against the defendant, Oliver E. Fraser, administrator as aforesaid, in the said sum of $11,500, and judgment was entered in favor of the North Western, and against the plaintiff.

The defendant-appellant, Oliver E. Fraser, administrator, took this appeal from the judgment entered against him in Case No. 10863. The plaintiff, William Johnson, administrator as aforesaid, took an appeal from the judgment against him and in favor of the North Western, that case being No. 10874 in this court. After the cases were docketed in this court, an order was entered directing that they be consolidated in the court for the purposes of hearings and oral argument, that only one set of the briefs and abstracts be required and that all filings in the consolidated cases be filed under the original appeal, namely No. 10863.

The original complaint filed on December 13, 1952, consisted of five Counts, to wit: Count I, a negligence Count against the defendant railroad; Count II, a wilful and wanton Count against defendant Fraser, administrator, alleging plaintiff’s intestate was a guest; Count III, a wilful and wanton Count against the defendant railroad; Count IV, a joint charge of negligence against the defendant railroad and wilful and wanton misconduct against defendant Fraser, administrator; Count V, a joint charge of wilful and wanton misconduct against both defendants. Answers were filed denying the allegations of the complaint.

On the date the case was called for trial, i. e., November 8, 1954, counsel for plaintiff upon motion was granted leave to file an amendment to said complaint consisting of two additional Counts, being Counts VI and VII. By Count VI it was alleged that plaintiff’s intestate was a passenger and not a guest and that Ethel E. Mullins was guilty of negligence. By Count VII, it was alleged that plaintiff’s intestate was a passenger and not a guest in the automobile of defendant’s intestate and that both defendants, Ethel E. Mullins and the railroad, were guilty of joint negligence.

Upon the filing of said amendment to the complaint and the additional Counts VI and VII, defendant Fraser, administrator, asked and was granted leave to file a motion to strike Counts IV, VI and VII of said complaint on the grounds of surprise as to Counts VI and VII and that Count IV improperly joined a negligence charge against the railroad and a wilful and wanton charge against defendant Fraser, administrator, in a single Count, and as to Counts VI and VII, that it appeared from the face of the complaint that the plaintiff’s intestate was, as a matter of law, a guest passenger in the automobile of defendant’s intestate at the time of the occurrence in question and that under the Guest Act, no action by a guest against a driver could be brought except for the wilful and wanton misconduct of the driver, and that an allegation of negligence against , the driver was insufficient. The motion to ..strike was denied. Whereupon, defendant Fraser, administrator, after leave granted, filed a motion to require plaintiff to make additional Counts VI and VII more specific, to allege facts upon which it was plain that plaintiff’s intestate was a passenger and not a guest in the automobile of Ethel E. Mullins, deceased. The court granted said motion.

Plaintiff thereupon filed a second amendment to the complaint being additional paragraphs 3a to additional Counts VI. and- VII in the words and figures, as follows:

“That at said time and place the plaintiff’s intestate being a child eight years of age as aforesaid was under the custody and control of said Ethel E. Mullins and subject to her directions, that she became a passenger in said automobile of Ethel E. Mullins at the direction of said Ethel E. Mullins and was at the time and place of the occurrence in question a passenger in said automobile without payment for the ride, at the direction of the said Ethel E. Mullins; that plaintiff’s intestate at the time and place of the occurrence in question owed to the said Ethel E. Mullins a duty of obedience and submission and by reason of the premises aforesaid was not a voluntary guest passenger in said automobile.”

Upon the filing of said amendment defendant Fraser, administrator, after leave granted, filed a motion to strike the second amendment to the complaint on the ground that it appeared from the face of the complaint that the plaintiff’s intestate was, as a matter of law, a guest passenger in the automobile of defendant’s intestate, Ethel E. Mullins, and that the allegations of the second amendment to the complaint were wholly insufficient in law and in fact to sustain the position that plaintiff’s intestate was not a guest passenger in said automobile at the time and place of the occurrence in question. Said motion to strike the second amendment to the complaint was denied. Defendant Fraser, administrator, then obtained leave to file an answer to the amendment and second amendment to the complaint, and filed his answer denying the allegations of said amendments to the complaint. During the period of time that the amendments were made to the complaint, the court inquired of defense counsel:

“I don’t hear any request for a continuance on the grounds of surprise, do I?”

and defense counsel answered:

“Mr. Q-obel: Not on our part.

“Mr. Maynard: No.”

At the trial, plaintiff withdrew the wilful and wanton Counts as to the defendant, Chicago & North Western Railway Company.

Defendant-appellant Fraser, administrator, contends that plaintiff’s intestate was a guest in the automobile of Ethel E. Mullins, deceased, as a matter of law; that the trial court should have stricken the negligence Counts of the complaint against him as administrator ; that the trial court should not have submitted the legal question of status of Marian Johnson, as passenger or guest, to the jury on undisputed evidence, as a matter of fact; that there was no sufficient evidence of wilful and wanton misconduct on the part of Ethel E. Mullins, deceased, to sustain a general verdict against her on the wilful and wanton Counts, and the court should have granted defendant Fraser’s motion for judgment notwithstanding the verdict; that the trial court erroneously admitted incompetent testimony and gave erroneous instructions; and that the verdict is against the manifest weight of the evidence.

As to his appeal from the judgment in favor of defendant-appellee, the Chicago & North Western Railway Company, plaintiff-administrator contends that he was restricted as to cross-examination, and as to rebuttal evidence, and that the trial court erred in giving certain instructions on behalf of the railway company.

The collision occurred on a Saturday afternoon at the Sixth street crossing in the City of DeKalb. This crossing is located in the downtown business district of DeKalb. At the Sixth street crossing there are two east-west main line running tracks and three industrial tracks or switching tracks north of the running tracks. There is a wig-wag flasher located on the south side of the tracks on the east side of Sixth street and immediately south of the running tracks. On the north side the flasher is located north of the most northerly of the industrial tracks and at least sixty or sixty-five feet north of the running tracks. There were no parked or standing freight cars on the industrial tracks nor on the running tracks, nor any other obstructions to prevent or hinder vision to the west. Fifty feet north of the main fine tracks vision was unobstructed for one mile to the west; at seventy-five feet for a distance of 1700 feet to the west; at 100 feet for a distance of 1520 feet to the west, and at 150 feet for a distance of 340 feet to the west.

The day in question was a cold day — zero or below. It was variously described as partly cloudy, overcast, bright, clear, but all the witnesses agree that there was clear vision and it was not snowing at the time. It had been snowing heavily, however, and the entire area was covered with snow. Sixth street and the crossing was covered with snow packed from traffic and was slippery. Appellant Fraser’s intestate, Mrs. Mullins, with plaintiff’s intestate, Marian Johnson, riding with her as a passenger in the front seat, was proceeding south on Sixth street enroute to Mrs. Mullins’ home. Mrs. Mullins was in good health, and had driven her car a lot. There was no evidence of there ever having been any mechanical or other trouble with the car.

Mrs. Mullins was familiar with the crossing. She had lived in DeKalb for 5 or 6 years on the south side. The Johnsons lived northeast. They were about 10 blocks apart. Mrs. Mullins went back and forth between the two houses, and to do so, it was necessary to cross the tracks, and she had travelled over the Sixth street crossing and was familiar with it.

The train in question was a North Western Railroad Company freight train known as the Madam X, consisting of diesel units and eighty-four freight cars. It was travelling easterly. The engineer turned on the bell before the train reached the whistling post west of town and the bell was working all right and it continued to ring until the occurrence. The headlight on the locomotive was turned on and operating. The engineer whistled at the whistling post. He was whistling from the whistle post down to Third street, over Fourth street; and about halfway down to Sixth street, he gave some blasts of the horn. The engineer kept blowing the horn or whistle and set the brakes.

As the train approached the Sixth street crossing the fireman, Gross, observed the flashing signal on the north side operating when the engine was about 400 feet away from the crossing. The train then proceeded toward the crossing, and when it was about four car lengths or about 160 feet from the crossing, Gross observed the automobile. It was about twenty feet north of the wig-wag or flasher signal which was still operating. The car was proceeding in a southerly direction and it came across the three industrial tracks toward the running track. It did not seem to change its speed. It did not slow down. The automobile continued to come up to the crossing and it stopped with its front wheels in the middle of the tracks. It did not skid.

When the engineer first saw the automobile, it was just about at the wig-wag which was operating. He testified it looked like the automobile was going across ahead of the train; that she had plenty of time to do it, but she came up to where her front wheels were on a railing and stopped and didn’t do anything after that, and stayed there and didn’t move at all until the train hit it.

Hollis Randolph turned into Sixth street going north from the Lincoln Highway. The wig-wag signals were moving when he turned into Sixth street and continued to work while he approached the crossing. He pulled up and stopped south of the tracks. He saw the flasher working before he saw the car coming from the north. When he stopped he saw the car north of the tracks. The front of the train hit almost in the middle of the car. The little girl had been looking at the train. She jumped up or stood up on the seat. She looked like she was trying to jump over her grandma to get away. Even after the car stopped on the tracks there was time enough for a person to have gotten out.

Under the plaintiff’s complaint and the amendments made thereto at the time of the trial, plaintiff on one theory sought recovery charging a violation of the guest statute which required proof of wilful and wanton misconduct before plaintiff would be entitled to recover; and on the other theory, that plaintiff’s intestate was a non-gratuitous passenger, not a guest, and that there was a consideration for the ride, either by way of payment or arising out of the business relationship of the granddaughter and the grandmother. Defendant-appellant Fraser contends that there is insufficient evidence in the record to warrant the jury in finding Mrs. Mullins guilty because the grandmother owed no duty to the grandchild.

There is a dispute as to whether or not the evidence was sufficient to establish that the grandmother was being paid for taking the grandchild in the car at the particular time of the collision, defendant Fraser contending that the trial court, over objection, permitted improper or incompetent evidence to go to the jury as to a payment for that particular purpose on the day in question. In the view we take of the case, it is not necessary to detail the evidence in that respect.

A resume of the evidence shows that the grandchild’s parents, Dorothy and William Johnson, were both employed at Englander’s in DeKalb and that Mrs. Mullins took care of the deceased Marian Johnson during the time the mother was employed; that Mrs. Mullins had worked for the Johnsons for “quite some time” or “for several months”; that she spent every day with Marian, and was paid every week. Her duties also included the transportation of Marian to and from school and between homes. Either Mrs. Johnson or Mrs. Mullins would take Marian over to the Mullins’ residence. At school time, Mrs. Mullins would take Marian to school. After school the grandmother would go and get Marian and either take her back to her own home or take her to the Johnson home and stay with her, according to whatever arrangement had previously been made.

On the particular Saturday, both Mr. and Mrs. Johnson were working. Mrs. Lane, a daughter of Mrs. Mullins, came to DeKalb to visit her mother that day. She found her at Mrs. Johnson’s with Marian. Mrs. Sanford, another daughter, came in from Earlville and went to her mother’s home. Her mother wasn’t there, so she went to Dorothy Johnson’s home, and Mrs. Mullins was there taking care of Marian. Mrs. Mullins, Mrs. Sanford, Mrs. Lane and Marian went to Rochelle shopping, in Mrs. Sanford’s car. Around 3:00 o’clock or shortly thereafter, they returned from the shopping trip to the Johnson residence. Because the Johnsons weren’t home, Mrs. Mullins transferred the packages from Mrs. Sanford’s car to her own car and took Marian with her to her own home. It was on this trip that the fatal collision occurred.

Before the case was submitted to the jury, the court must have been of the opinion that there was sufficient evidence to sustain the wilful and wanton counts, otherwise the motions for directed verdict as to those counts would have been granted and those counts would have been stricken from the consideration of the jury. This is borne out by the following instructions which were submitted to the jury at the request of the said defendant-appellant, Fraser, as administrator :

I

“The Court instructs the Jury that the Plaintiff in this case cannot recover from the Defendant, Oliver E. Fraser, Administrator of the Estate of Ethel E. Mullins, Deceased, unless and until he proves by the greater weight or preponderance of the evidence the following propositions.

“First, that the Plaintiff’s intestate, Marian Johnson, was at and immediately prior to the time and place of the occurrence in question free from any wilful and wanton misconduct on her part which proximately caused or contributed to cause her death; and

“Second, that the Defendant’s intestate, Ethel E. Mullins, so wilfully and wantonly operated her automobile that as a direct and proximate result and consequence of the wilful and wanton misconduct of Defendant’s intestate, Ethel E. Mullins, Deceased, the automobile operated by her collided with a train; and

“Third, that the wilful and wanton misconduct, if any, of the Defendant’s intestate, Ethel E. Mullins, Deceased, was the proximate cause of the death of Plaintiff’s intestate, Marian Johnson, Deceased.-

“Anri if you find from the evidence that the Plaintiff, has failed to prove any one or more of the foregoing propositions by the greater weight or preponderance of the evidence, then in such case the Plaintiff cannot recover from the Defendant, Oliver E. Fraser, Administrator of the Estate of Ethel E. Mullins, Deceased.”

II

“The Court instructs the Jury as to the complaint against Oliver E. Fraser, Administrator of the Estate of Ethel E. Mullins, Deceased, that at the time of the occurrence in question the Statute of the State of Illinois provided among other things as follows:

‘No person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’

“In this regard the Court further instructs the Jury that a wilful act is an act done either with a deliberate intent to inflict injury upon another, or with an intentional disregard for the safety of the persons or property of others, and with an entire absence of care for the safety of the persons or property of others, such as would show a conscious indifference to consequences. To make an act wanton, the party doing the act or failing to act must be conscious of his conduct, and though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions that his conduct will naturally and probably result in injury to another.

“And in this case, if you find from the evidence, and under the instructions of the Court, that Plaintiffs intestate, Ethel E. Mullins, Deceased, was not guilty of wilful and wanton misconduct, as defined herein, then, you should find the Defendant, Oliver E. Fraser, Administrator of the Estate of Ethel E. Mullins, Deceased, not guilty.”

• While plaintiff complains of the giving of the two above instructions, he does not seek a reversal of the case as to defendant, Eraser.

As a consequence of these two instructions, recovery was limited by the court to a showing of wilful and wanton misconduct. These instructions removed the issues of negligence from the jury as effectively as if the court had directed a verdict. The jury found the defendant administrator guilty and we fail to see how said defendant is now in position to effectively challenge the correctness of the jury’s finding.

On the state of the record hereinabove related, appellant Fraser’s contention that the court should have directed a verdict in his favor falls far short of the requirements for the granting of such motion. There are many cases in Illinois announcing the doctrine that a railroad crossing is known to be a dangerous place and that drivers approaching same must exercise care commensurate with the danger. What difference does it make in this case whether Mrs. Mullins, being familiar with the crossing and the danger involved, failed to discover the presence of the train from any of the warnings given her, although the view was unobstructed, or, whether having discovered the presence of the train from the warnings' furnished her, she chose to ignore them and proceed across the crossing, nevertheless. If the former is the situation, does she have the right to refuse to look when the train is in plain sight, to refuse to listen to all the sound signals being given her, or refuse to observe the flasher? If it is the latter, does she have the right to ignore the warning signals and proceed across the crossing in the hope of beating the train? And having chosen to take the chance, will she now be permitted to plead that an error of judgment or a mishap in operation were not wilful because they were not intended? Appellant Fraser says that both ill will and intentional injury are unbelievable in view of the relationship existing between the grandmother and the grandchild. It is clearly established in Illinois that neither intentional injury nor actual ill will is a requirement for wilful and wanton misconduct. In Schoenbacher v. Kadetsky, 290 Ill. App. 28, the defendant’s car skidded into an intersection where it collided with the plaintiff. The court said, p. 34:

“We think the question whether defendant was guilty of wanton misconduct was for the jury. Walldren Express Co. v. Krug, 291 Ill. 472; Price v. Bailey, 265 Ill. App. 358; Nosko v. O’Donnell, 260 Ill. App. 544. If the jury believed plaintiff’s version of the collision, we think that defendant’s conduct evidenced such a gross want of care and regard for the rights of others as to justify the presumption of wantonness.

“We think the evidence was wholly insufficient to show an intent or purpose by defendant to injure plaintiff, but an intent is not necessary under the law.”

In Gaiennie v. Fringer, 5 Ill.App.2d 403, recently decided by this court, the plaintiff was a guest in defendant’s car. Defendant stopped at a stop sign and then slowly entered an intersection and was struck by an automobile driven on a preferential highway. Defendant contended that there was no evidence of wilful and wanton misconduct because there was no evidence showing any consciousness on her part that her conduct would naturally and probably result in injury, nor was there a showing that any absence of care on her part exhibited a conscious indifference to consequences. This court said, p. 412:

“An exact all-inclusive definition of wilfulness and wantonness is difficult to achieve.”

Then the opinion quoted from Mower v. Williams, 402 Ill. 486, and from Bartolucci v. Falleti, 382 Ill. 168:

“To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct and, though having no intent to injure, must be conscious from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, makes a case of constructive or legal wilfulness.”

Appellant Fraser further argues that actual knowledge by Mrs. Mullins in this case is an essential element of proving wilful and wanton misconduct. In Stephens v. Weigel, 336 Ill. App. 36, this court said, p. 40:

“It is not necessary, however, that defendant intended that plaintiff should be injured by reason of his acts, nor is it necessary that defendant actually know the dangers to which plaintiff is exposed. It is sufficient if he has notice which would alert a reasonably prudent man, and he does not take reasonable precaution under the circumstances.”

It is plaintiff’s theory that, when facts were proved which would fairly permit the inference, the question of whether the death of Marian Johnson was caused by the wilful and wanton misconduct of Ethel E. Mullins was a question for the jury.

In Busch v. Oliphant, 332 Ill. App. 426, the court said, p. 430:

“The question for decision is whether there was sufficient evidence taken in the light most favorable to plaintiff, to take the case to the jury on the charge of wilful and wanton misconduct. We hold there was, and the court should not have directed a verdict for defendant. (Citing cases.)”

In Walldren Express & Van Co. v. Krug, 291 Ill. 472, the court said, p. 476:

“Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury.”

This principle has often been followed by our courts. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Levanti v. Dorris, 343 Ill. App. 355.

We are of the opinion that the trial court did not err in refusing to direct a verdict of not guilty for the defendant-appellant Fraser and that the lower court did not err in refusing to grant said defendant’s motion for judgment notwithstanding the verdict and we are further of the opinion that the verdict is not against the manifest weight of the evidence, but that there is sufficient evidence in the case to sustain the jury’s findings.

Defendant-appellant Fraser further complains of the admission of the testimony of Carl E. Wojan, an employee of the railroad, offered on behalf of said co-defendant, relating to the visibility in a westerly direction down the right-of-way from various points in Sixth street north of the crossing in question, and appellant characterizes this evidence as being evidence of the result of tests or experiments, and contends that the testimony is incompetent unless essential conditions thereof are shown to be the same as at the time of the accident. We fail to see where the rights of said defendant were so prejudiced by this evidence that it should require a reversal as to plaintiff. It is apparent from an examination of the evidence given by said witness that an experiment in the true sense is not involved. Here there was no attempt to duplicate the conditions and re-enact the occurrence. All that is involved is a showing as to how the visibility down the right-of-way is affected by the permanent objects obstructing the view at various points. At the stations 25 to 200 feet north of the crossing, the obstruction to view to the west was the corner of the Englander Building. At 300 feet north of the crossing the obstruction to view was the feed store and Shell Garage. In other words, all the testimony amounted to was the point of intersection with the railroad track of a line drawn across the corner of the Englander Building from points 25 to 200 feet north of the crossing. It was still daylight when the police arrived at the scene after the occurrence and it was daylight when the witness Wo jan made his measurements.

Witnesses have always been permitted to testify with respect to obstructions to view; for example, such things as hedges, fences, buildings and the like at intersections ; for what distance the approaching driver had a clear view and what distance he could have seen down the intersecting street. The difference here is only that the evidence refers to a later date. Hence, proof was necessary to show (1) that only permanent objects or obstructions were involved and, (2) that there had been no change in the permanent objects— namely, the Englander Building — which would affect the visibility. This the court inquired into outside the presence of the jury, and found to be the fact before the proof was permitted. There were no obstructions in the form of movable objects at the time of the occurrence and the witness himself said that the picture — Railroad's Exhibit 1A — correctly portrayed the fixed objects. It seems clear that no error was committed by the court by the admission of this evidence offered by the co-defendant. Only fixed objects are involved and they are the same.

Two of the eight instructions given by the court on behalf of the plaintiff have been objected to by defendant Fraser. The court gave seventeen instructions for the defendant railroad company and fourteen instructions for the defendant-administrator Fraser, which included the two instructions heretofore referred to requiring the plaintiff to prove his case as set up in the Counts alleging wilful and wanton misconduct. One of the instructions given on behalf of the defendant Fraser/ administrator, advised the jury that “these instructions are to be considered by you as one connected series. You must not pick out any one individual instruction and disregard others, but you must take all of the instructions together as the law.” To try and treat each one of the instructions separately would unduly lengthen this opinion. We think, as a whole, taking all the instructions given, that the jury was properly instructed as to the law of the case.

As to the appeal by plaintiff from the judgment in favor of the railroad, the allowance of rebuttal evidence is a matter within the sound discretion of the trial judge. Washington Ice Co. v. Bradley, 171 Ill. 255, 259; Willard v. Petitt, 153 Ill. 663; McEniry v. Tri-City Ry. Co., 179 Ill. App. 152. From an examination of the evidence which appears in this case, we are of the opinion that the trial court did not abuse his discretion, either as to cross-examination, or as to the allowance of rebuttal evidence.

As to the instructions complained of by plaintiff-appellant, suffice it to say that the ultimate goal of a court is a fair and just result, Fraider v. Hannah, 338 Ill. App. 440, 453. When it is clear that the case- has been fairly tried and that the judgment is clearly right, the judgment should be affirmed by an Appellate Court. People v. Storer, 329 Ill. 536, 542; Sweney v. Northwestern Mut. Life Ins. Co., 251 Ill. App. 1, 31; Nelson v. Armistead, 327 Ill. App. 184. When the driver of an automobile is familiar with the crossing, and has an unobstructed view of the approaching train, and the crossing warning signals are properly operating, the driver’s negligence or wilful and wanton conduct has been held in certain cases to be the sole proximate cause of injuries to a passenger in the automobile. Trust Co. of Chicago v. Baltimore & O. R. Co., 315 Ill. App. 209; Elliott v. Elgin, J. & E. Ry. Co., 325 Ill. App. 161. The jury here has reached a correct result, supported by the evidence, and Appellate Courts in such cases will not reverse such finding. Henert v. Chicago & N. W. Ry. Co., 332 Ill. App. 194, 200; Sweney v. Northwestern Mut. Life Ins. Co., supra. As said by our Supreme Court in People v. Storer, 329 Ill. 536, 542:

“The object of the review of judgments of trial courts by courts of appellate jurisdiction is not to determine whether the record is free from error but to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, in a trial in which no error has occurred which might be prejudicial to the defendant’s rights.”

The trial court properly entered judgment in favor of the railroad company on the verdict of the jury finding it not guilty.

It appearing to this court that the parties have had a fair trial, the judgments of the circuit court are therefore affirmed.

Judgments affirmed.

DOVE, P. J. and CBOW, J., concur.


source: Caselaw Access Project

author: JUSTICE CULBERTSON

license: Public Domain

text:
    Betty Ann Winters, Plaintiff-Appellee, v. John Richerson et al., Defendants-CounterplaintiffsAppellants.
    Term No. 55-O-20.
    Fourth District.
    March 6, 1956.
    Released for publication March 26, 1956.

      Donald R. Mitchell, of Vienna, for defendantscounterplaintiffs-appellants.
    R. W. Harris, and David A. Warford, both of Marion, for plaintiff-appellee.
   JUSTICE CULBERTSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Johnson County in favor of plaintiff, Betty Ann Winters, and as against defendant, John Richer-son, in the sum of $7,500; and in favor of Betty Ann Winters, as a counter-defendant, and against Betty June Richerson and Velma Hall, as counter-plaintiffs, on counter-claims filed by said counter-plaintiffs.

On appeal in this court it is contended by appellants, defendant John Richerson and counter-plaintiffs Betty June Richerson and Velma Hall, that the court below erred in denying defendants’ motion for directed verdict at close of plaintiffs’ case and at the close of all the evidence; and in denying defendants’ motion for judgment notwithstanding the verdict; and, likewise, in denying1 the motions of counter-plaintiffs for a new trial. It is principally contended that the verdict was contrary to the manifest weight of the evidence; that improper demonstrative evidence was used; that the damages were excessive; and, that no proper verdicts were returned in the case.

The action arose by reason of a collision between automobiles driven by defendant, John. Richer-son, and plaintiff. The counter-plaintiffs were passengers in the automobile being driven by' defendant. There was a conflict of evidence as to the facts immediately preceding the collision at a point where the defendant’s car had come out of a private driveway onto the highway, known as State Route 146, near Vienna, Illinois. It would not aid in the determination of this case to go into the evidence as to the respective versions of the cause of the collision. There was sufficient evidence, however, to justify submission of the case to the jury, and the court below properly refused the motion for directed verdict both at the close of plaintiff’s evidence and at the close of the case, and properly refused to enter judgment notwithstanding the verdict on motion filed by defendant at such time. Similarly, under the evidence and the facts in the record before us, the verdict in the sum of $7,500 could not be deemed an excessive verdict; nor could the verdict, under the facts, be deemed to be contrary to the manifest weight of the evidence.

An interesting development in the case, which is one of the grounds cited for reversal by defendant, arose at the time of the return of the verdicts in the case by the jury. The jury first returned a verdict in favor of plaintiff and as against defendant, John Rieherson, in the sum of $7,500. The jury did not at such time return a verdict on the counter-claims. The court then ordered the jury to retire and consider the verdicts on the counter-claims. The original verdict had been returned as a sealed verdict and was opened the following morning in the presence of the jury. After the jury retired they returned verdicts on the counter-claims finding counterdefendant-plaintiff — not guilty. It is the contention of the defendant and counter-plaintiffs that the result was that no verdict was before the court in the case of plaintiff as against defendant. No such ground was raised in the motion for new trial, and apparently is being raised in the first instance on appeal in this court. It is obvious, however, that the court below properly received the verdicts, both on the claim of plaintiff as against defendant, and on the counter-claims; and that the particular ground thus asserted would not justify reversal (Heitz v. Hersheway, 3 Ill.App.2d 221; Wickizer-McClure Co. v. Bermingham & Seaman Co., 151 Ill. App. 540).

The remaining ground which is raised by appellants relating to the use of demonstrative evidence is, under the record, one which impels this court to order a new trial. In the court below a skeleton was produced in the courtroom and doctors were permitted to testify by referring to such skeleton; and instruments which were used by surgeons in the operation on plaintiff were also produced in the courtroom. We have had occasion to consider the use of a skeleton in another case considered by us. (Smith v. Ohio Oil Company, a corporation, and Maurice M. Smedley, Term No. 55-O-12.) The observations made in such case are adhered to in the present case. The instant case, however, is one which compels a different conclusion. In the case before us the plaintiff produced the instruments which were used by surgeons, and a demonstration of operative technique was carried on in the courtroom. The courts of this State have always strongly disapproved of demonstrations of this nature (McHale v. McQuigg, 236 Ill. App. 295, 299; Shaw v. Corrington, 171 Ill. App. 232, 233; Hall v. Chicago & N. W. Ry. Co., 349 Ill. App. 175, 195). To permit an unlimited use of such demonstrations of operative technique with surgical instruments is not conducive to a fair and impartial consideration of the proper issues presented. The demonstration by medical witnesses of technique in the use of surgical instruments was not proper. It appears clear, therefore, that the ruling by the court in permitting such demonstrative evidence was error.

This cause will, therefore, be reversed and remanded for a new trial.

Beversed and remanded.

BABDENS, P. J. and SCHEINEMAN, J., concur.


text:
    Dr. Bernhard Samter, Plaintiff-Appellee, v. Department of Public Welfare, and Illinois State Civil Service Commission, Defendants-Appellants.
    Gen. No. 10,906.
    Second District.
    March 20, 1956.
    Released for publication April 9, 1956.

      Latham Castle, Attorney General, State of Illinois, of Chicago, for defendants-appellants; William C. Wines, Raymond S. Sarnow, and A. Zola Groves, Assistant Attorneys General, of' Chicago, of counsel.
    Dale Ferguson, and Paul E. Rink, both of Rock Island, for plaintiff-appellee.
   JUSTICE EOVALDI

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Rock Island County reversing the findings and decision of the Civil Service Commission, which, in turn, had discharged the appellee from his position as Psychiatrist I in the East Moline State Hospital and ordered his reinstatement to his position with the Department. The proceedings were based upon the provisions of the Administrative Review Act, Chapter 110, pars. 264 to 279, inch, Ill. Rev. Stat., 1953.

Defendants-appellants’ theory is that the evidence sustains the Department’s finding that appellee mistreated a mental patient in violation of applicable rules and that the trial court erred in holding the contrary. It is plaintiff-appellee’s theory that the Hearing Officer of the Commission entirely ignored the law in his findings and conclusions; that the manifest weight of the evidence clearly indicated that the plaintiff’s actions were justified; and that the Department’s Rule No. 25, on which the Commission’s judgment was based, is merely a directive as to the administrative duty of the Superintendent of the Hospital and not a restriction on the plaintiff.

The request for the discharge of plaintiff was based upon the following* charges:

“1. Abuse of a mental patient. On September 16, 1953, Dr. Samter attacked patient, Jerry Katapodes, with intent to do bodily harm.

“2. Conduct unbecoming a State employee. By his abuse of the patient Dr. Samter exhibited conduct that cannot be tolerated in the Department of Public Welfare or by his hospital.

“3. Violation of rules of the Department. Dr. Samter’s action in the treatment of this patient was a stringent violation of Administrative Regulation No. 25 concerning mistreatment of patients.”

Regulation No. 25 of the Rules and Regulations of the Department of Public Welfare of the State of Hlinois, reads as follows:

“Mistreatment of patients, wards or members of state institutions under the Department of Public Welfare :

“The superintendent of a state institution shall see that all staff officers and personnel of his institution understand that no mistreatment of patients, wards, or members will be condoned.

“Mistreatment may be defined as: (1) Forcibly laying hands on patients, wards or members; (2) striking, pushing, pulling or shoving patients; (3) corporal punishment of any sort; (4) violence of any character; (5) use of violent, profane or obscene language; (6) use of seclusion in mental hospital; (7) applying restraint at hospitals for the mentally ill without a physician’s written prescription; (8) administering restraint or seclusion in the security facilities without a physician’s written prescription; (9) any other aetion on the part of any employee towards a patient, ward, or member which would be injurious to such patient, ward or member, including deliberate neglect or failure to respond to his obvious needs.”

As will be pointed out later in this opinion, plaintiff had spent almost his entire professional life dealing with patients in mental institutions. To have reached the grade of Psychiatrist I, after having served as Physician I at this institution for many years, he must have familiarized himself with certain of the rules and regulations of the institution.

As to his contention that the above regulations apply only to the Superintendent and are not binding on plaintiff, reference is made to 43 Am. Jur. (Public Officers), Par. 281, wherein it is said:

“It is settled, subject, however, to a number of exceptions, that in the absence of a statute imposing liability, or of negligence on his part in appointing or supervising his assistants, an officer is not liable for the default or misfeasance of subordinates and assistants, whether appointed by him or not, providing the subordinates or assistants, by virtue of the law and of the appointment, become in a sense officers themselves, or servants of the public, as distinguished from servants of the officer, and providing the officer does not direct the act complained of, or personally cooperate in the negligence from which the injury results.”

Plaintiff was an appointed assistant as distinguished from a servant of the Superintendent. Nothing in the evidence would tend to indicate that anyone directed the doctor to take the action he took with reference to the patient. In Barker v. Chicago, P. & St. L. Ry. Co., 243 Ill. 482, our Supreme Court held that public officers and agents of government are liable for their own personal negligence or defaults in the discharge of their duties, but are exempt as such officers or agents, from liability for the negligent acts of their subordinates in performing their duties. Section 16 of the Civil Administrative Code, Ch. 127, Ill. Rev. Stat., 1953, empowers the director of each department to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its employees and clerks, etc. Begulation 25 has been promulgated by the Department, and it can hardly be contended that it applies only to the Superintendent when we consider that without the help of assistants, it would be impossible for the Superintendent to properly carry out the myriad of functions attendant to his office. The rule specifically states that: “The superintendent of a state institution shall see that all staff officers and personnel of his institution understand that no mistreatment of patients, wards, or members will be condoned.” The contention that the Superintendent is the only person who can be guilty of violating Buie 25 is without merit.

From the record it appears that the plaintiff had been an employee of the State of Illinois at East Mo-line State Hospital since February, 1947, as Physician I, and since October 1, 1951, as Psychiatrist I; that previous thereto he had been employed in a State Institution at Cherokee, Iowa, first as a resident physician, and later on, in a “little higher capacity, meaning I got more money.” He was employed there from June 27, 1943, until February 2, 1947. From March, 1942, until April 12, 1943, he was employed at a State Hospital in Provo, Utah. From July, 1939, to December, 1941, he was employed at Dixon and St. Charles. He obtained his license to practice on March 6, 1939.

The four witnesses introduced by defendants were all present in Taylor Cottage on September 16, 1953, and saw the incident or a portion of it. Buelah Bur-dick, a recreational aide, was about eight feet from the doctor and saw the entire incident. She testified that she saw the doctor get up from his desk, and hit Jerry, and knock him down, and while he was down he kicked him. “He hit him with his fist,” she said, but she did not observe if it was with an open hand or a clenched fist. She further testified that the doctor kicked him several times and that he then took him by his shirt, picked him up and knocked him down again. “Jerry then got up and started walking across the room, and Dr. Samter kicked him and hit him again; and the last time he hit him, Jerry fell and hit his head on a chair and cut his head open.” She further testified that when Jerry got up, blood was pouring down from his head; the doctor went to him, cut his hair and doctored him with the assistance of a nurse. She stated the doctor told her he was protecting Mrs. Whitmer.

On cross-examination, Miss Burdick testified that she had been warned that Jerry was a dangerous or violent patient, but she had never seen him strike at any of the entertainers or recreational workers and he had never made any physical advances toward her. As to Dr. Samter’s treatment of the patients, other than on this occasion, she said “he was always cooperative, and helped her take the patients out for fresh air.” Miss Burdick testified on rebuttal that, “Jerry did not go back toward Mrs. Whitmer.”

Mrs. Gladys Whitmer, who was seated at the piano with her back to the audience, testified that Jerry walked past her, took a swing at her and she just ducked and kept on playing. She heard “kind of a commotion” and looked over her right shoulder and Dr. Samter had hold of him. She could not tell whether he struck him; Dr. Samter was either pushing or striking the patient. On cross-examination she said she did not see it at all; that Dr. Samter was very angry and that she knew Jerry was dangerous and that she had heard of him hitting other people, but she did not think he was so hard to handle. She further testified that Dr. Samter had been very kind to the patients.

June Dunning, a practical nurse, was at the door letting company out and in; returned, and “saw Dr. Samter give Jerry a whirl around, and a shove around, and he fell broadside and he hit his head on the floor.” She testified the doctor treated him, and that “Jerry must be in his fifties, 55, 56, and she believed he would weigh 150 pounds and was nearly six feet tall.” She further testified that in her opinion Jerry was a dangerous patient and that on one occasion at least two years back he was put in seclusion. She corroborated Miss Burdick’s statement that the doctor had generally been kind toward the patients, treated them to pop and tobacco and showed them lots of consideration.

Lucy Fairbank, the other Department witness, had come into the room when the activity was going on. She testified that the patients at this hospital were mentally ill, and that Taylor Cottage “is what we describe as nice, old men, about half of them are in bed, and the rest of them are sitting in the Day Room. They are mostly peaceable older men. They are assigned there not only because they are mentally incapacitated, but because they are feeble.” She testified that she was talking to some patients about ten feet from the piano when suddenly she saw Dr. Samter approach Jerry and throw him down and seemed to hit him, and then he picked him up. Then he threw him down and kicked him and hit him, and then Jerry either got up, or he picked him up, and then he threw him again. She did not see Jerry land the last time as she was looking at Dr. Samter and asked the doctor what he was doing, reminding him that an employee who struck a patient would be dismissed instantly, to which the doctor replied: “I had to strike him. I would not allow the attendants to do it, but I had to do it. I had to show him.” On cross-examination she said she did not see Jerry swing at Mrs. Whitmer, “Jerry was not tussling. Dr. Samter was doing all the action.” She further testified that she had seen Dr. Samter on the ward with patients and that he had always seemed to be a very kindly person towards them.

Not one of the seven witnesses for plaintiff was present or saw any part of the occurrence. They were all in accord as to his good character and kind treatment of patients. Five were employed at the Bast Moline State Hospital and testified to Jerry’s habit of grabbing and hanging on to people, his dislike of music and women, four said he had struck at them, and one was knocked off the piano stool and another had to mend quite a few uniforms after Jerry got through grabbing at her. Dr. Hollander, a neuropsychiatrist, in his testimony stated he felt Dr. Samter was justified in the course he took in handling Jerry. One of these witnesses, Nellie Hipskind, stated, “I could not hardly say Jerry is dangerous, only that he grabs people and hangs on them, and then when you try to get him off, he is resistive, and he is so strong, you can’t hardly get him away without a little shove. Once in awhile then, he might fall. I never observed Jerry strike anybody.” Another of plaintiff’s witnesses, Florence Richey, testified that she was well acquainted with Jerry; that he had struck her with force about two years before; and that other than on the one occasion he struck her she never let him get close enough to her after that. Another of said witnesses for plaintiff, Marie Ryan, testified that she was acquainted with Jerry and in answer to a question, “Was Jerry considered a dangerous patient?” she answered, “Well he is very combative.” On one occasion about two years before, he hit her with his fist on one side of her face knocking her off the piano stool. Another of plaintiff’s witnesses, Evelyn Snider, testified that Jerry had always been difficult to handle and at different times had struck at her. She testified that she saw him strike another patient and that she kept clear of him because she thought he was dangerous.

According to Dr. Samter, when sitting at his desk, about 40 feet away, he saw the mental patient, Jerry Katapodes, swing at Mrs. Whitmer’s head. Mrs. Whitmer, a recreational worker, was seated with her back to Jerry and playing the piano. Jerry was moving quickly and when the doctor first observed him he was standing or moving right behind her. About a yard away from Mrs. Whitmer the doctor grabbed Jerry by the neck because he was “afraid the second swing would hit her. The first one missed her, the second would not.” The doctor said he did not knock Jerry down, “but I got him down all right by getting him around his neck.” He did not remember, but believed he picked him up again as he came back towards Mrs. Whitmer instead of going away. He was perhaps four yards away and more toward the middle line of the room; he moved again toward the piano, facing the doctor who was kicking at him as he was approaching. He came closer and one of the doctor’s “round” kicks hit him — “it did not hit him in the leg — it was a kick like done by a soccer player, not straight but round.” The doctor said: “It was not intended to strike him at all.” Jerry then turned around and ran into the alley leading toward the dining room, the doctor running after and pushing him. After the push Jerry ran three or four more yards, struck a chair, stumbled and fell. The doctor said he did not intend to do any physical harm to Jerry; his purpose was to prevent him from coming back to the piano to hit Mrs. Whitmer. The doctor expressed familiarity with Jerry’s previous record, that he had given difficulties of various kinds, was subject to compulsions and obsessions, and when he set his mind on something like taking a Coca-cola bottle from another patient, “he will try it, and will follow this patient.” He described Jerry as a “catatonic schizophrenic” type. That the main difficulties he g*ave the staff were in connection with the recreation department; that he had struck at recreational people and musicians several times; so that it became necessary to pay special attention to him. When obsessed with a particular thing, the doctor stated, it was necessary to take special precautions to persuade him from proceeding toward that particular object.

The manifest weight of the evidence adduced at the hearing before the Illinois State Civil Service Commission has established that the plaintiff was guilty of charges preferred against him, viz.: (a) abuse of a mental patient, (b) conduct unbecoming a State employee, and (c) violation of Buie 25 concerning mistreatment of patients. In fact, the evidence and testimony is uncontradicted, admitted and conceded by Dr. Samter himself, that after he had captured the patient by the neck, knocked him down, kicked him, and completely subdued him, he then pursued the patient after the patient got up from the floor and was leaving the room, and after this pursuit of some six, seven or eight yards, again struck or pushed the patient causing him to fall and incur further injury.

From these facts the Commission was well justified in determining that Dr. Samter’s conduct was such as to justify his discharge. Dr. Samter, having been entrusted with the responsibility attached to his position as Psychiatrist I, and having dealt with patients over many years, many of whom were not responsible for their actions, was required to have a background calling for coolness, calmness and conduct and action commensurate with his position. In this instance, he demonstrated a total lack of capacity to deal with the situation. From the record it is apparent that Dr. Samter had previously been dismissed because of his inability to get along with people. His admissions to these prior difficulties appears in his testimony on cross-examination, as follows:

“I left Dixon and St. Charles because I had to leave the state. Mr. Couch wrote the letter to Dr. Murray. Dr. Murray read the letter to me that my services were unsatisfactory, and I could not get along with visitors. I left the State Hospital in Utah because I had some difficulty with a patient, with whom I had a quarrel.”

The Administrative Review Act provides (Ch. 110, Ill. Rev. Stat., 1953, par. 274, Sec. 11, Scope of Review): “The findings and conclusions of the Administrative Agency on questions of fact shall be held to be prima facie true and correct.” While it is true that in hearings of this character it is held that the findings of the hearing body must be supported by the evidence, our courts also hold that it is not within the province of the court to disturb the findings of fact made by an administrative agency unless manifestly against the evidence. Logan v. Civil Service Commission, 3 Ill.2d 81; Oswald v. Civil Service Commission, 406 Ill. 506; Illinois Cent. R. Co. v. Franklin County, 387 Ill. 301; Foreman v. Civil Service Commission, 7 Ill.App.2d 122; Martin v. Civil Service Commission, 7 Ill.App.2d 128; Watkins v. Civil Service Commission, 7 Ill.App.2d 140; Molting v. Civil Service Commission, 7 Ill.App.2d 147; and McCaffery v. Civil Service Board, etc., 7 Ill.App.2d 164. In these five recent cases the Appellate Court for the First District had occasion to canvass the Ulinois decisions upon the functions, respectively, of the Civil Service Commission and a trial court in assaying evidence of misconduct. As said in Nolting v. Civil Service Commission, supra, p. 163:

“The Civil Service Commission is not a judicial tribunal even though it has been called ‘quasi-judicial’ in the sense that its findings could be examined on certiorari. The hiring and discharging of employees in the civil service is still an executive function.

“In appeals from a Civil Service Commission there should be recognition by the courts that the relationship of the executive department to its employees is involved and that the discipline of an entire department may be affected.”

These five cases hold that whether the questions of fact are as to what occurred or are as to the gravity of the offense even if the employee’s version of the occurrence is taken as true, a trial court may not disturb the action of the Commission unless it is without support in or contrary to the manifest weight of the evidence. We feel that there is substantial testimony in this record to suport the findings and conclusions of the Civil Service Commission, and that such findings were not against the manifest weight of the evidence.

It was error for the circuit court to set aside the findings of the Civil Service Commission and to restore appellee to his status as Psychiatrist I in the Bast Moline State Hospital. The judgment of that court is reversed, and the decision and findings of the Civil Service Commission of Hlinois are affirmed.

Judgment reversed.

DOVB, P. J. and CROW, J., concur.


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    Charles Raser, Raymond Raser by Esther Raser, His Next Friend, and Howard Glatthaar, Plaintiffs-Appellants, v. Oral Johnson et al., A. W. Wellstein, as Trustee, Ogden H. Chamberlain, as Executor of Will of Mary M. Urick, Deceased, and Latham Castle, Attorney General of State of Illinois, Defendants-Appellees, and Margaret Bell, and Neva Bentley, Plaintiffs-Appellees.
    Gen. No. 10,922.
    Second District.
    March 20, 1956.
    Released for publication April 9, 1956.

      James H. Andrews, Harper Andrews and Campbell Andrews, all of Kewanee, for appellants.
    Latham Castle, Attorney General, State of Illinois, pro se, of Springfield; John L. Davidson, Jr., First Assistant Attorney General, of Springfield, John G. Smith, and J. Calvin Bostian, both of Springfield, and Reynolds M. Everett, of Galva, Assistant Attorneys General, of counsel; Joseph L. Shaw, of Geneseo, for A. W. Wellstein, and Ogden H. Chamberlain, appellees.
   JUSTICE EOVALDI

delivered the opinion of the court.

This is an appeal from a decree of the circuit court dismissing a complaint for want of equity on motions of defendants. Plaintiffs claim their suit was brought for the purpose of construing paragraph Seventh of the will of Mary M. Urick, deceased, providing as follows:

“SEVENTH: I give, devise and bequeath all the rest, residue and remainder of my estate to A. W. Well-stein, M. D., of Geneseo, Illinois, in trust, nevertheless, for the uses and purposes hereinafter specified. My said trustee shall invest said estate in income producing securities. He shall use the income thereof, and so much of the principal as in the judgment of my said trustee may from time to time be necessary, to pay for the hospitalization or medical supplies of worthy persons residing in the City of Geneseo, Illinois, who, in the judgment of my trustee, are unable to pay for the same. Should any of said trust estate be comprised of real estate, I authorize and empower my said trustee to hold the same, leasing it for periods not exceeding five years, on such terms as to my said trustee shall seem proper, and I further authorize and empower him to pay the taxes, insurance, necessary repairs and other expenses for maintaining said real estate, using the net income as hereinabove provided. I further authorize and empower him to sell said real estate, at public or private sale, at such price and such terms as to him shall seem proper, and to convey the same to the purchaser or purchasers, who shall not be required to look to the application of the purchase money. In case of the death, resignation or inability of said trustee to serve, then a successor trustee or trustees shall be appointed by a court of proper jurisdiction, and such successor trastee or trustees shall administer said trust in the same manner, and with the same rights and duties as those herein given to and prescribed for my said trustee.”

The pleadings consisted of the complaint, with a copy of the will attached as an exhibit, and the motions to dismiss filed by the executor, the trustee and the Attorney General. In the motion filed by the executor and trustee, it was alleged that said paragraph “Seventh” was plain and unambiguous, its meaning was clear, and it needed no construction; and that same made a valid gift to charity. In his motion to dismiss, the Attorney General charged that plaintiffs did not allege facts sufficient to show that the trust created by paragraph Seventh of the will of Mary M. Uriek was void because of indefiniteness or uncertainty in any particular. The motion further alleged that on the contrary the facts as alleged by the plaintiffs clearly showed that the trust was valid and enforceable; that plaintiffs did not allege facts sufficient to show that the trust was void under the rule against perpetuities; that plaintiffs did not allege facts sufficient to show that the trust was for purposes which the courts of this state did not recognize as charitable; and that plaintiffs did not allege facts sufficient to give them a right to the relief prayed for, or any part thereof. No evidence was heard.

Plaintiffs-appellants are the heirs at law who will take the property if the trust is void. They allege that the trust is void as it violates the rule against perpetuities and is not a charitable trust. They further contend that there was such doubt and ambiguity in the provisions of the will that the court should have construed the will and should have allowed attorneys’ fees to the plaintiffs even though their views on the construction of the will were not adopted by the court. Defendants’ position is that said Seventh paragraph of the will creates a valid charitable trust and is not subject to the rule against perpetuities; that the language of said paragraph is unambiguous and does not require construction and the court properly refused attorneys’ fees to plaintiff s-appellants. The first and primary issue in this case is therefore whether or not the trust created under clause Seventh of the will is a charitable trust. Plaintiffs specifically direct their attack to the following portion of said Seventh clause:

“He shall use the income thereof, and so much of the principal as in the judgment of my said trustee may from time to time be necessary, to pay for the hospitalization or medical supplies of worthy persons residing in the City of G-eneseo, Illinois, who, in the judgment of my trustee, are unable to pay for the same.”

A charity has repeatedly been defined by our Hlinois Courts as:

“. . . a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burthens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature.”

Crerar v. Williams, 145 Ill. 625, 643 (1893) quoting from Jackson v. Phillips, 14 Allen 539, 556 (Mass. 1867). In determining whether or not a trust is charitable and valid the Illinois Courts have applied the basic rule that, “. . . Such gifts are looked upon with peculiar favor by the courts, which take special care to enforce them, and every presumption consistent with the language used will be indulged to sustain them. . . Franklin v. Hastings, 253 Ill. 46, 50 (1912). This rule and the definition of charity quoted above have been applied in Illinois cases holding trusts charitable and valid. Crerar v. Williams, supra; Franklin v. Hastings, supra; Skinner v. Northern Trust Co., 288 Ill. 229, 232; Morgan v. National Trust Bank of Charleston, 331 Ill. 182, 186; Stubblefield v. Peoples Bank of Bloomington, 406 Ill. 374, 384.

In Summers v. Chicago Title & Trust Co., 335 Ill. 564, the Illinois Supreme Court applied these principles to a trust for the purpose of making loans to “worthy students to enable them to pay their senior year’s tuition.” The court held the trust valid and charitable, saying at pp. 568-569:

“The questions involved in this case are almost identical with those in Morgan v. National Trust Bank, 331 Ill. 182, .... Appellants, however, contend that this case differs from the Morgan case in that in that case the money was to be loaned to indigent pupils while in the instant case it is to be loaned to worthy students. If the word ‘worthy’ were the only description of the students to whom the loans were directed to be made by the testator’s will there might be some force in appellants’ contention. That is not the case. The loans are directed to be made to ‘worthy students about to enter the senior year in the respective courses of law and medicine ... to enable them to pay their senior year’s tuition.’ The word ‘enable’ is a compound of the prefix ‘en’ and the adjective ‘able.’ ‘En’ is a prefix forming verbs from nouns or adjectives, ‘en’ having the general sense of make. The adjective ‘able’ may be defined as having sufficient power, means or resources of any kind to accomplish an object. The compound word ‘enable’ is a verb meaning ‘to make able; to give (one) power, strength or competency sufficient for the purpose.’ (Webster’s New Int. Diet.) One cannot by any act enable a person to do a thing which prior to the act the person was able to do. The term ‘worthy students,’ as used in the will, does not include all worthy students, but only such of them as without the loan would be unable to pay their senior year’s tuition.”

The objects of the testator’s charity in the Summers case were, and in this case are, “worthy” persons who are unable, without the help of the gift, to provide for themselves.

Plaintiffs contend that the trustee is authorized to devote the trust to purposes other than charitable. In the Summers case, supra, the court held that where the language creating the trust expressed a general charitable intent the trustee was bound to apply the funds to recognized charitable purposes. Quoting from p. 569, the court said:

“It cannot be said or held that such students could use the loan for other than a charitable purpose, for it was to be loaned only for a purpose which was charitable and upon the approval of the dean of the law school or the dean of the medical school. The trustee was authorized to make the loan for the purpose specified in the will and for no other purpose. The provisions of the will were explicit in these respects and were not capable of the construction sought to be placed upon them by appellants.”

Similarly, in the instant case, Mary M. Urick’s intentions were clearly charitable. Therefore, the trustee cannot use these funds for non-charitable purposes even though a non-charitable application might otherwise be authorized by an extreme interpretation of the language. Morgan v. National Trust Bank of Charleston, supra.

In Continental Illinois Nat. Bank & Trust Co. v. Harris, 359 Ill. 86, our Supreme Court considered a perpetual trust establishing a home for “worthy, honest, respectable, law-abiding American citizens. . . .” The heirs of the testator attacked the trust alleging that it was not devoted to proper objects of charity and that the trust was therefore void under the rule against perpetuities. The court held the trust valid, stating at p. 90:

“We are also of the opinion that clause 7 creates a valid charitable public trust. It is contended that this clause does not describe an object which the law recognizes as a public charitable purpose because it does not require that the persons entitled to be admitted to the home be objects of charity, such as poor, old or ill farmers, and because it requires that preference be given to kindred of the testator. We cannot accede to these contentions. . . .”

The heirs’ allegation in that case that the provisions of the will were so vague and uncertain as to render it invalid were answered by the court, at p. 96:

“Nor are the provisions of clause 7 so vague and uncertain as to be invalid. As above indicated, the testator intended that those to be admitted to the home as inmates should be only such farmers who were not only honest, respectable and law-abiding American citizens, but also such as were worthy and appropriate objects of charity, whether by reason of old age, poverty, illness or other similar cause. These restrictions are not uncertain or unreasonable but for the most part are such as are ordinarily sought to be applied by charitable organizations to those seeking charitable relief.”

An earlier case, Grand Prairie Seminary v. Morgan, 171 Ill. 444, upheld as charitable a trust for the education of boys “who are unable to educate themselves.” The court after discussing the applicable principle, stated at p. 450:

“Tested by this principle, the primary bequest in the latter part of the fifth clause of the will in the case under consideration must be sustained. The bequest is charitable. The language of the will is, ‘for the purpose of educating boys who reside in the State of Illinois, between the ages of twelve and eighteen years, and who are unable to educate themselves.’ The object of the bequest is certain and so are the recipients.

The objects and the recipients of the trust here under consideration are as certain as those in the Grand Prairie case.

It is next argued by appellants that the relation between the nature of the benefit and the size of the class of possible beneficiaries is important in considering whether a trust is for a charitable purpose; and that the trust in this case is not sufficiently beneficial to the community. It is hardly conceivable that the “worthy” persons who are unable to pay medical expenses ^residing in the City of Geneseo, with its population of 4,325, can be so small a class that the community has no interest in the performance of the trust. Can the community be less interested in the instant trust than the City of Elgin was in a public bathhouse (Scanlan v. Kirby, 230 Ill. App. 505), than the City of Chicago was in the furtherance of the principles of a specific religious group (Harges v. Zander, 314 Ill. 170), or in loans to worthy students entering their senior years in the Northwestern University Law or Medical Schools (Summers v. Chicago Title & Trust Co., supra)! We hold this latter contention to be without merit.

It is further contended by appellants that the Wellstein trust appears to violate the statute, Ch. 30, Sec. 153, Ill. Rev. Stats., 1955, which prohibits the accumulation of income for a period longer than lives in being and twenty-one years, unless some alternative period of accumulation is provided for. As we understand the Thellusson Act, it prohibits disposition of property in a manner which either expressly or by implication results in accumulation of income for a period longer than lives in being and twenty-one years. In the event an accumulation is directed, the direction is null and void, and income accumulated goes to the persons holding the beneficial interest from which the income was derived. The instant trust neither expressly nor by implication provides that the income from the trust should be accumulated for any period of time. On the contrary, it directs that the income be used, and further authorizes that the principal may be invaded to carry out the purposes of the trust. This cannot reasonably be considered as an authority to the trustee to accumulate.

In Webb v. Webb, 340 Ill. 407, an heir sought to have a charitable trust held void under the Thellusson Act. The will in that case provided for the establishment of a sinking fund to restore, replace and make major improvements and additions to buildings held in trust for charitable purposes. The court held that the trust did not violate the Act, pointing out that to violate the Act the will must in effect direct an accumulation. In the absence of a clear intent that there should be an accumulation, the court would not speculate whether the trustee had the power to accumulate beyond the permissible period. At p. 419, the court said:

“All of appellants’ case is based primarily on the proposition that this will provides for an accumulation, contrary to the statute. It cannot be known until after the running of the statute whether there in fact will be, though contrary to the intent and purpose of the testator, such accumulations of surplus of this sinking fund over and above expenditures as might exist, in violation of the act. There is no reason to suppose that there will be, and for that reason appellants have no interest whatever in this estate beyond the annuities given them under the will. . .

This same observation is made in Stubblefield v. Peoples Bank of Bloomington, supra, where the court said at p. 388:

“. . . and even if a direction for accumulation is held to be invalid, the only result is that the income is immediately distributable to the valid charities and the heirs or next of kin are not let in. Webb v. Webb, 340 Ill. 407; Ingraham v. Ingraham, 169 Ill. 432.”

Finally it is urged by appellants that the Trial Court erred in not allowing attorneys’ fees. As a general rule, attorneys’ fees cannot be taxed as costs unless allowed by statute. Where a will is so ambiguous as to require construction, the estate in the discretion of the Trial Court may be required to bear the expense of that construction including attorneys’ fees. These plaintiffs, as heirs, are interested in having the trust declared void, which is all the relief they request. This fact alone casts substantial doubt upon their right to attorneys’ fees since those fees would be paid from the very fund which they seek to destroy. Tincher v. Arnold, 147 Fed. 665 (CCA 7th, 1906); Dime Savings & Trust Co. v. Watson, 208 Ill. App. 382. We are concerned here with whether the plaintiffs had reasonable legal grounds for requesting construction. The terminology employed by the testator was so similar to that used in other wills previously construed by the courts of this state as to remove any reasonable question of its validity.

In Tincher v. Arnold, supra, an heir at law sought to have provisions of a will establishing a charitable trust declared void on grounds similar to those ip. the instant case. The complaint was dismissed and the Trial Court refused to tax attorneys’ fees as costs. In affirming, the Circuit Court of Appeals adopted the decision of the Trial Court, which is quoted at p. 677:

“When the terms of a will are so ambiguous that resort to a court of equity is necessary to obtain a construction of the said will it may be proper for the court to order the costs of the parties to the proceeding, together with reasonable solicitor’s fees, to be paid out of the estate of the testator. Such cases have arisen where the executor has filed a bill to have determined the respective rights of various legatees which under the ambiguous terms of the will are not clearly defined, and which the executor is justified in asking the aid of equity in construing. In such a case it is equitable that the common fund should bear the expenses of the proceeding. This cause however presents no such situation. Complainant seeks to have the court declare void testator’s bequest to charity, and the trust failing, she would then take the property as heir. The suit is one plainly for her own interest alone, and not for the interest of the defendant trustees who have been in possession of the property for years and engaged in carrying out the terms of the will. . . .”

The court also pointed out that the primary purpose in bringing the suit was to have the trust provisions of the will declared void, and it was only incidentally that a construction of the will was required.

In the case of Walliser v. Northern Trust Co. of Chicago, 344 Ill. App. 125, this court held that plaintiffs in an unsuccessful action to enforce a supposed interest by a construction of a will which would have given one of the plaintiffs property free from the testamentary trust were not entitled to an allowance for attorneys’ fees and costs out of the trust estate.

In the case of Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220, the court said at p. 237:

“This court has aptly stated, concerning the payment of fees to heirs in a proceeding for the construction of a will: ‘We know of no authority in this State, and have been cited to none, which would authorize the payment of solicitors’ fees to a defendant or cross-complainant whom this court finds to have no present interest under the will and therefore no interest in its construction.’ Brumsey v. Brumsey, 351 Ill. 414.”

After a careful consideration of the case, we are satisfied that the judgment of the Circuit Court dismissing the complaint for want of equity and not allowing attorneys’ fees is correct, and it will be affirmed.

Judgment affirmed.

DOVE, P. J. and CROW, J., concur.


author: JUSTICE CULBERTSON.

text:
    Board of Education of Community Consolidated School District No. 110, St. Clair County, Illinois, Plaintiff-Appellee, v. S. T. Pabst, Doing Business as S. T. Pabst and Associates, Defendant-Appellant, Cardinal Construction Company, Defendant.
    Term No. 55-O-5. (Abstract of Decision.)
    Fourth District.
    February 1, 1956.
    Rehearing denied February 28, 1956.
    Released for publication March 26, 1956.
    Melvin W. Trotier, for defendant-appellant;
    Listeman and Bandy, for plaintifE-appellee.
   Opinion by

JUSTICE CULBERTSON.

Not to

be published in full.


author: PRESIDING JUSTICE McCORMICK.

text:
    Mattie Dodds, Appellee, v. Chicago Transit Authority, and Richard Brouilette, Appellants.
    Gen. No. 46,645. (Abstract of Decision.)
    First District, Second Division.
    February 21, 1956.
    Rehearing denied March 20,1956.
    Released for publication April 3, 1956.

      Thomas C. Straehan, Jr., James 0. Dwight, Chester A. Wynne, Arthur J. Donovan, and John W. Freels, for Chicago Transit Authority, defendant-appellant;
    Clausen, Hirsh & Miller, for Richard Brouilette, defendant-separate appellant;
    David P. Krasner, for appellee;
    Charles T. Shanner, of counsel.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: JUDGE ROBSON.

text:
    Anton Macal, Appellant, v. Chicago Tumor Institute, etc., et al., Appellees.
    Gen. No. 46,612. (Abstract of Decision.)
    First District, Second Division.
    February 21, 1956.
    Released for publication April 3, 1956.
    Roger J. Boylan, for plaintiff-appellant;
    Albert M. Howard, for appellee; Charles D. Snewind, of counsel.
   Opinion by

JUDGE ROBSON.

Not to be published in full.


author: JUDGE SCHWARTZ.

text:
    Louis D. Tenerelli, Plaintiff-Appellee, v. Eddy Stoker Corporation, Defendant-Appellant.
    Gen. No. 46,554. (Abstract of Decision.)
    First District, Second Division.
    February 21, 1956.
    Released for publication April 3, 1956.
    Judgment reversed and cause remanded. G. Donald Whitehouse, and Albert E. Jenner, Jr., for defendant-appellant;
    Morris Gordon Meyers, and Jonas Meyers, for defendant-appellee;
    Harold Z. Novak, of counsel.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.


text:
    Lester B. Ohlsen, Appellant, v. Willard J. Einspar, Appellee.
    Gen. No. 46,701. (Abstract of Decision.)
    First District, Second Division.
    February 21, 1956.
    Released for publication April 3, 1956.
    Irwin, Deneke & Penner, for appellant;
    John F. Tyrrell, and Daniel D. Glasser, for appellee.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.