text:
    Clayton R. Curtis, Plaintiff-Appellant, v. Albion-Brown’s Post 590 American Legion of Illinois, Melvin Westerfield, et al., and “Unknown Owners,” Defendants-Appellees.
    Gen. No. 65-3.
    Fifth District.
    December 20, 1965.
    Robert H. Rice, of East St. Louis, for appellant.
    Jones, Ottesen & Fleming (Ralph J. Derango, Jr., of counsel), for appellees.
   EBERSPACHER, P. J.

Clayton R. Curtis filed a complaint against Albion Brown’s Post 590 American Legion of Illinois, Melvin Westerfield, George Weightman, Fred Fiock, Hubert Johnson, Ellis Shaw, Emory Reid, P. M. Williamson, and “Unknown Owners,” in the Circuit Court of Edwards County, alleging that they were the owners and operators of a liquor store known as Albion Brown’s Post 590 in Albion, County of Edwards and State of Illinois. The complaint alleged that the defendants by and through their duly authorized agents and servants sold alcoholic liquor to one Merrill Weber, which in whole or in part caused him to become intoxicated; and that while so intoxicated, Merrill Weber, while operating a motor vehicle, caused it to violently collide with an automobile being operated by this plaintiff, thereby causing severe injuries to this plaintiff. It was further alleged that the defendants were conducting and transacting business under an assumed name, to wit; Albion Brown’s Post 590 American Legion of Illinois, but had failed to file with the County Clerk of Edwards County, in which they were conducting said business, a certificate setting forth the true names of the persons owning or transacting such business and their addresses, as required by sec 4, chapter 96, Ill Rev Stats, 1963. Proceeding under section 8a (ch 96 supra), the plaintiff alleged that the “Unknown Owners” herein were all other persons transacting business under such assumed name in addition to the named defendants.

Defendants filed a limited appearance, a motion to dismiss and to quash service of process, on the grounds that the complaint showed on its face that Albion Brown’s Post 590 American Legion of Illinois was being sued as an unincorporated association, that the defendants were joined as defendants as several, but not all, of the members of the Albion Brown’s Post 590, that chapter 96, sections 4 through 10, Ill Rev Statutes 1963, did not apply to an unincorporated association, and that the attempted joinder of the members under the designation of “Unknown Owners” was improper and ineffective to vest jurisdiction over the individual members of the association in the court.

The court found that the Albion Brown’s Post 590 American Legion of Illinois, was sued as a voluntary unincorporated association, that it was not a legal entity and that a suit at law for damages could not be maintained against several but not all of its members and the attempted joinder of the members as “Unknown Owners” was ineffective to vest jurisdiction in the court over the association or the individual members. The order concluded by saying:

“It is therefore ordered, adjudged and decreed that the summonses served in this case upon the aforesaid defendants be quashed and be declared to be of no force and effect. It is further ordered, adjudged and decreed that the complaint filed herein be dismissed, and that the plaintiff be granted leave to file an amended complaint within thirty days.”

It is from this order that the plaintiff has appealed, and the record shows that the appeal was filed within eight days from the time that the order was entered.

It is plaintiff’s contention that he proceeded properly against the defendants, that service was good, and that the trial judge erred in quashing the summonses and dismissing the complaint. It is defendant’s contention that this appeal is not an appeal from a final judgment of the Circuit Court, and should be dismissed and secondly that the trial judge was correct in quashing the summonses and dismissing the complaint.

Article VI, section 7 of the Constitution of Illinois, provides in part as follows:

“In all cases, other than those appealable directly to the Supreme Court, appeals from final judgments of a circuit court lie as a matter of right to the Appellate Court in the district in which the circuit court is located.”

This provision replaces the subject matter formerly covered in chapter 110, section 77 of the Practice Act, said statute being repealed when the trial courts were consolidated into a single trial court. The jurisdictional requirement as to finality of a judgment before review at the appellate level has remained the same. Since the same requirement of finality was contained in sec 91 of the Practice Act of 1907, decisions as to what constitutes “final judgments” under the earlier act would still control.

The leading case in this state on what constitutes a final judgment is that of Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill 200, 75 NE 478. In that case the trial court sustained the general demurrer of the defendant to the declaration and the plaintiff elected to stand by the declaration. Judgment was entered as follows:

“Therefore it is considered by the court that the defendant do have and recover of and from the plaintiff its costs and charges in this behalf expended and have execution therefor.”

Plaintiff appealed and the Appellate Court affirmed judgment of the trial court. Plaintiff then appealed to the Supreme Court and contended that Appellate Court had no jurisdiction of the appeal for the reason that judgment was not final. The Supreme Court reversed and remanded to Appellate Court with directions to dismiss the appeal at Appellant’s cost. The Supreme Court stated in part as follows:

“The judgment was not final and the statute only authorizes appeals from final judgments. The circuit court merely sustained a demurrer to the declaration, and neither adjudged that the plaintiff take nothing by the writ or that the defendant go hence without day, and the judgment contained no words of equivalent meaning.”

The rule stated has been followed in numerous cases. In Aetna Plywood & Veneer Co. v. Robineau, 386 Ill 339, 83 NE2d 896, the plaintiff appealed from an order dismissing the complaint at plaintiff’s cost and from an order denying plaintiff’s motion to vacate the order of dismissal and grant it leave to file an amended complaint. The court discussed extensively the rule stated in the Chicago Portrait Co. case and found that neither order from which plaintiff appeals is a final judgment or decree within meaning of sec 77 of the Civil Practice Act. In the case of Brodt v. Novak, 44 Ill App2d 16, 193 NE2d 867, it was held that an order sustaining defendant’s motion to dismiss an injury action complaint, and in terms ordering that complaint “be and the same is hereby dismissed” was not “final and appealable,” necessitating dismissal of the appeal without prejudice, since to be final and appealable, the order should have been followed by a judgment. In Vosnos v. Wenzel, 35 Ill App2d 390, 183 NE2d 193, it was held that an order entered, denying a petition to vacate judgment, but allowing defendants 30 days to file an amended petition, was not a final, appealable order; and an appeal taken from an order during the period in which defendants had right under the order to file an amended petition, would be dismissed.

In the instant case the order granted plaintiff leave to file an amended complaint within 30 days. The plaintiff filed his appeal eight days after the order was entered. At the time the appeal was filed, the trial court had not entered any final order. Appellate Courts, subject to statutory exceptions, are without jurisdiction to review judgments, orders or decrees which are not final. (Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill 569, 50 NE2d 836; Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill 200, 75 NE 473; Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371). To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of judgment. (Roddy v. Armitage-Hamlin Corp., 401 Ill 605, 83 NE2d 308; Rogers v. Barton, 375 Ill 611, 32 NE2d 135; Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371.) See also Nichols, Illinois Civil Practice, Sec 5901- and cases therein cited.

For the reasons stated, we find that the order appealed from was not a final, appealable order and the appeal is dismissed at plaintiff’s cost.

Appeal dismissed.

MORAN and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: GOLDENHERSH, J.

license: Public Domain

text:
    Cova Robbins, Plaintiff-Appellant, v. Howard Campbell, Jr., Defendant-Appellee, and Edgar Robbins, Defendant.
    Gen. No. 65-19.
    Fifth District.
    December 24, 1965.

      Richard A. Cagle, of Alton, for appellant.
    Reed, Armstrong and Gorman, of Edwardsville, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the order of the Circuit Court of Madison County dismissing her appeal as to the defendant, Howard Campbell, Jr. A proper presentation of the issues requires a review of the prior proceedings in this case.

Plaintiff, Cova Robbins, filed suit in the Circuit Court of Madison County seeking to recover damages for injuries suffered while riding in an automobile driven by defendant, Edgar Robbins, which automobile collided with an automobile driven by defendant, Howard Campbell, Jr. The case was tried to a jury and resulted in a verdict in favor of the plaintiff and against defendant, Edgar Bobbins, and a verdict in favor of the defendant, Howard Campbell, Jr. and against plaintiff. Both plaintiff and defendant, Edgar Bobbins, filed post-trial motions, the motions were denied, and final judgments were entered on the verdicts.

Fifty-five days after the date on which the judgments became final, defendant, Edgar Bobbins, filed a notice of appeal. The proof of service filed by this defendant shows service of a copy of the notice of appeal on plaintiff’s counsel, but shows no service on counsel for defendant, Howard Campbell, Jr. Within nine days of the date of service of defendant, Edgar Bobbins’ notice of appeal, plaintiff filed a notice of cross appeal, and served copies thereof on counsel for both defendants. In the notice of cross appeal, she states that she appeals from the judgment entered in favor of defendant, Howard Campbell, Jr., and from the judgment entered in her favor against defendant, Edgar Bobbins, because of its inadequacy, and prays that the judgments be reversed and the cause remanded for a new trial on the issue of damages only.

Defendant, Howard Campbell, Jr. filed a motion to dismiss that portion of the notice of cross appeal which is applicable to him because of plaintiff’s failure to file her notice of appeal within 60 days of the date on which the judgment became final. The Circuit Court heard argument on the motion and ordered that portion of the notice of cross appeal which was applicable to defendant, Howard Campbell, Jr. stricken, and the appeal as to that defendant dismissed. Plaintiff prosecutes this appeal.

Plaintiff contends that the cross appeal was timely filed, that the procedure followed is the proper manner of perfecting an appeal as to the defendant, Howard Campbell, Jr., and the Circuit Court exceeded its jurisdiction in dismissing her appeal as to this defendant. It is defendant, Howard Campbell, Jr.’s contention that plaintiff was required to perfect her appeal as to him by filing a notice of appeal within 60 days of the date on which the judgment became final, and she cannot evade this provision of the statute by attempting to perfect a cross appeal under the provisions of Supreme Court Rule 35.

Section 76 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 76) provides that no appeal may be taken from a trial court to the Supreme or Appellate Court after the expiration of 60 days from the entry of the order, decree, judgment or other determination complained of except upon leave to appeal granted by the reviewing court. This statutory provision is implemented by Supreme Court Rules 33 and 34 which prescribe the form and contents of the notice of appeal and designate the parties entitled to receive, and the time for serving, copies thereof.

Cross appeals are governed by Supreme Court Rule 35 which provides: “(1) Each appellee who desires to prosecute a cross appeal from all or any part of the judgment, decision, order or decree, and each coparty who did not join in the notice of appeal but who desires to join as appellant or to prosecute a separate appeal shall, within 10 days after service upon him of notice of appeal, serve a notice upon each party or attorney or firm of attorneys who signed the notice of appeal, and upon each appellee, person or officer entitled to receive notice of an appeal, and file a copy thereof in the trial court.”

In addition to its inherent power to prescribe rules of procedure, the Supreme Court, by the provisions of Section 2 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 2), is invested with power to make rules of pleading, practice, and procedure for the courts. Such rules, when established, have the force of law. Biggs v. Spader, 411 Ill 42, 103 NE2d 104.

Counsel have not cited, nor has this court found, any case which decides the precise issue here presented. Appellee cites Parish Bank & Trust Co. v. Uptown Sales & Service Co., Inc., 300 Ill App 73, 20 NE2d 634, but that case is not in point since it involves an attempt to cross appeal from a judgment on which no appeal was taken, and which the Appellate Court clearly states was not before it.

Appellee cites the case of American Dixie Shops, Inc. v. Springfield Lords, Inc., 8 Ill App2d 129, 130 NE2d 532; but that case is not controlling. The Appellate Court dismissed a purported cross appeal on the ground that under the provisions of section 78 of the Civil Practice Act an appeal did not lie from an order partially dissolving a temporary injunction. The court, at page 136, stated that the rules applicable to cross appeals are not authority for taking such cross appeals in cases where appeals are not authorized by law. In the next sentence of the opinion, it states that Rule 35 contemplates an appeal from the same judgment that appellants have appealed from, and cites as authority for the statement Parish Bank & Trust Co. v. Uptown Sales & Service Co., Inc., (supra). Since the case was decided on the ground that no appeal lay from the partial dissolution of the temporary injunction, the comment regarding Rule 35 was unnecessary to the decision of the case and therefore lacks binding force. Stow v. People of the State of Illinois, 25 Ill 81.

Plaintiff relies upon Heine v. Degen, 362 Ill 357, 199 NE 832, in which case several defendants appealed from a decree holding them liable as stockholders of a defunct bank, but absolving them of liability on 200 shares of bank stock held in the name of Fred E. Legris, Sr. The appellees, under the provisions of Supreme Court Rule 35, filed a notice of cross appeal from that portion of the decree which exonerated appellants of liability on the 200 shares. One defendant, Pratt, did not join in the original notice of appeal. Appellants-cross-appellees contended that Pratt was not an appellant, that all the parties affected by the portion of the decree sought to be reversed were not before the court, and cross-appellants should have prosecuted a separate appeal. The court, in rejecting this contention, said, at page 380, “The fourth part of this rule requires service on each appellee and upon any other person or officer entitled by law to a notice of appeal where the notice of appearance shall indicate an intention to prosecute a cross-appeal or a separate appeal by a co-party. There seems to be no way provided for an appellee to appeal from a decree other than by cross-appeal, and none is needed. A co-party may bring a separate appeal if he has interests which conflict with those of the appellant, but no mention is made in this connection of such a separate appeal by the appellees. Under the rule, and by reason of the stipulation, the cross-appeal was properly brought, and the contention that Pratt is not before this court as a party to the cross-appeal is without merit.” Whether the court would have so held in the absence of the stipulation is, unfortunately, not clearly apparent from the opinion.

The case of People ex rel. Southfield Co. v. Jarecki, 408 Ill 266, 96 NE2d 569, involved a judgment of the County Court of Cook County, entered on March 28, 1950, wherein the court sustained certain tax objections and overruled others. The collector filed notice of appeal from that part of the judgment which sustained the objections. Plaintiff filed no cross appeal but moved to vacate the judgment. The county judge refused to consider the motion to vacate on the ground that the county court had lost jurisdiction of the case upon perfection of the collector’s appeal. Plaintiffs then filed notice of appeal from that portion of the judgment of March 28, 1950, which overruled certain of their objections, and also gave notice of appeal from the order refusing to consider the motion to vacate. Plaintiffs presented to the county judge, for certification, the report of proceedings at the trial resulting in the judgment entered on March 28, 1950. The judge refused to certify the report of proceedings on the ground that he was without jurisdiction to consider or certify it, because plaintiffs should have perfected a cross appeal in compliance with the provisions of Supreme Court Rule 35. Plaintiffs sought a writ of mandamus in the Supreme Court. The Supreme Court held that in the absence of a provision in the Revenue Act, the provisions of the Civil Practice Act and the Supreme Court Rules pertinent thereto controlled, and at page 274 said: “The proceedings in the instant case in the trial court were single, and the tax judgment entered upon the various items arose out of a single proceeding. No reason appears why all items of that judgment cannot be fairly presented to this court for review in one case. Relators here contend that if they are required to present their contentions by cross appeal, then they are denied the right and duty to appeal within thirty days from the rendition of the judgment as prescribed for appeals from such judgments by section 237 of the Revenue Act; that Rule 35 requires that-cross appeals be perfected within ten days after service of notice of appeal, and that therefore if the notice of appeal is served less than twenty days after the judgment is rendered, they are forced to perfect a cross appeal before expiration of thirty days and, conversely, if notice of appeal is served more than twenty days after the judgment, then they are granted more than thirty days for perfecting cross appeal. The same might be said of any proceeding under the Civil Practice Act. The appellee in any proceeding under the Civil Practice Act is governed by Rule 35 and the time limitations set upon perfection of cross appeal is made to depend on the date the main appeal is perfected. There is no merit to this, since the requirement in regard to cross appeals works no injustice and does not prevent a fair and orderly-hearing upon the issues presented by the parties.”

We interpret People ex rel. Southfield v. Jareeki to require that an appellee seeking to appeal from any portion of the judgment appealed from is required to proceed by cross appeal as provided in Supreme Court Rule 35.

In Johnson v. Moon, 3 Ill2d 561, 121 NE2d 774, the Supreme Court said that in construing the Civil Practice Act “the several provisions of the statute should be construed together in the light of the general purpose and object of the act, so as to give effect to the main intent and purpose of the legislature as therein expressed.” (p 566). If the legislative intent is to be given effect, rules promulgated by the Supreme Court under the authority expressly conferred by the Civil Practice Act, and in implementation thereof, must be considered and construed as an integral part of the Civil Practice Act.

The judicial interpretations of the Civil Practice Act, and the various amendments adopted since its original enactment, have tended toward providing procedures for litigation of causes in their entirety in one proceeding, rather than piecemeal. Toward that end, the Supreme Court in Johnson v. Moon (supra) held that it was the effect of the Practice Act to apply the rules formerly limited to equity cases to actions at law, and permitted a defendant to join additional parties by counterclaim; the 1955 amendment (§ 25) provided for third-party proceedings. This trend is consistent with the provisions of Section 4 (Ill Rev Stats 1963, c 110, § 4) that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.

In the absence of a contrary expression by the legislature or the Supreme Court, it appears as desirable to speedily and finally determine controversies at the appellate, as at the trial level.

In light of the foregoing cases and statutory provisions we construe Rule 35 to mean that if one party to a suit appeals from a portion of the judgment,'any appellee may proceed in accordance with Rule 35 as to the appellant, or any other party to the cause. Even though the trial court entered separate judgments, and the appellant would not be adversely affected by the reversal or modification of the judgment entered in favor of a party designated in the notice of cross appeal as a cross-appellee, the judgment of the trial court is a single judgment for purposes of appeal. The advantages of considering the appeal in its entirety, in one proceeding, far outweigh any inconvenience suffered by the defendant in being joined as a cross-appellee within 10 days after the filing of the notice of appeal, rather than within 60 days after the judgment became final.

For the reasons herein set forth, the order dismissing the appeal as to the cross-appellee, Howard Campbell, Jr., is reversed. An order has been entered as of this date providing for the filing of briefs by the parties in the appeal perfected by virtue of the notice of appeal, and presently pending here.

Order reversed.

EBERSPACHER, P. J. and MORAN, J., concur.


author: PRESIDING JUSTICE ALLOY.

text:
    Farmall Employees Credit Union, Plaintiff-Appellee, v. P. J. Wadsager, et al., Defendants-Appellants.
    Gen. No. 65-23.
    Third District.
    December 10, 1965.
    Murphy & Brinn, of Rock Island, for appellants; Dan H. McNeal, of Moline, for appellee.
   Opinion by

PRESIDING JUSTICE ALLOY.

Not to be published in full.


author: CORYN, J.

text:
    Marie Johnson, Administratrix of the Estate of Earl J. Johnson, Deceased, Plaintiff-Appellee, v. Princeville Community High School District 206 and Lavergne Byrnes, Defendants-Appellants.
    Gen. No. 65-55.
    Third District.
    December 23, 1965.

      Davis, Morgan & Witherell, of Peoria, for appellants.
    Frederick W. Allen, of Peoria, for appellee.
   CORYN, J.

Plaintiff, Marie Johnson, Administratrix of the Estate of Earl J. Johnson, deceased, filed this wrongful death action in the Circuit Court of Peoria County against Princeville Community High School District 206, and Lavergne Byrnes, defendants. The jury returned a verdict for the plaintiff in the amount of $30,000, upon which the court entered judgment. Defendants are appealing from this judgment and raise the following issues:

1. Plaintiff failed to prove negligence on the part of defendants.

2. Plaintiff’s intestate was guilty of contributory negligence as a matter of law.

3. The court erred in giving the jury plaintiff’s Instruction No. 10, which instruction informed the jury of a statute in Illinois which requires a vehicle approaching a stop sign to stop at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting highway.

4. The court erred in refusing to strike the testimony of the coroner’s physician.

The evidence establishes that on September 20, 1961, at approximately 7:30 a. m., Earl Johnson, decedent, was traveling southbound in his automobile on Route 88 and approaching the intersection of Route 88 with Trowbridge Road in Peoria County. Route 88 is a two-lane paved highway running in a northerly and southerly direction. Trowbridge Road is a gravel road which runs east and west and intersects at right angles with Route 88 about one mile south of the Town of Lawnridge. Stop signs direct traffic on Trowbridge Road to stop and yield the right-of-way to traffic on Route 88. On the morning of the accident the pavement was dry, even though there was dense fog. Visibility was estimated by various witnesses to be from one hundred feet to less than a city block. Lavergne Byrnes, defendant, and driver of the school bus owned by Princeville Community High School District 206, also defendant, was not permitted to testify because of the provisions of § 2 of an Act in regard to evidence and depositions, c 51, § 2, Ill Rev Stats (1965), popularly called the Dead Man’s Statute. Four student passengers on the bus at the time of the mishap testified that the bus approached said intersection from the west prior to turning left or north onto Route 88. These students stated that the bus driver brought the bus to a stop for about a minute at the edge of the pavement, opened the bus door and window, listened and looked for traffic on the highway and then pulled onto Highway 88, and was in the process of making a left turn, when the bus was struck by the decedent’s automobile. The collision occurred in the southbound lane of Route 88. The left front of decedent’s automobile struck the school bus at the front of its left rear dual wheels; both vehicles were extensively damaged. One of the students, John Phillips, testified that he saw the lighted headlamps of the decedent’s vehicle shortly, before the impact. State Trooper Martin testified that he arrived at the scene of the accident about 7:57 a. m. and found the bus on an angle in the northbound lane of Route 88, facing in an easterly direction. Decedent was lying on the gravel shoulder of the road beside his car, and at that time appeared seriously injured. The automobile headlights were on, but there were no headlamps lighted on the bus. Trooper Martin stated there were ninety-five feet of “positive skid marks laid down by the Chevrolet and an additional ninety feet of skid marks which were probably laid down by the Chevrolet.” These skid marks were down the center of the southbound lane. Trooper Martin stated that the Chevrolet traveled approximately ten feet after the impact, and that the impact moved the bus six feet in a sideways direction from the point of impact. Martin stated that as he came upon the scene of the accident, he could see the vehicles when a half-a-block away. Dr. Donald Burhans, Peoria County coroner’s physician, testified that he was called upon to examine a body indentified to him by someone else as the body of Earl J. Johnson, and that he concluded from his examination' that the death of Earl J. Johnson was caused by a basal skull fracture with hemorrhage around the brain, a fracture of the right humerus, and multiple facial lacerations. The answer to the complaint admits that decedent died on the day of the collision, and it is not disputed that he sustained serious injury and that he was previously in good health.

Plaintiff’s Instruction No. 10 (IPI 60.01) reads as follows:

“There was in force in the State of Illinois at the time of the occurrence in question certain statutes which provided that: Every driver of a motor vehicle approaching a stop sign shall stop at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting highway before entering the intersection, and shall yield the right of way to other vehicles which are approaching so closely on said through highway as to constitute an immediate hazard.
“If you decide that the defendants violated the statutes on the occasion in question, then you may consider that fact, together with all the other facts and circumstances in evidence, in determining whether or not the defendant was guilty before and at the time of the occurrence.”

Defendants claim that it was error for the court to give this instruction as the language of the statute (Ill Rev Stats, c 95%, § 167) had been modified by judicial interpretation, and the instruction as drafted did not reflect this modification. This court cannot consider this issue in this appeal, as defendants’ post-trial motion, which complained of errors concerning other instructions given by the court, did not claim as error the giving of plaintiff’s Instruction No. 10, and consequently defendants are barred from raising this question on appeal. At c 110, § 68.1(2), Ill Rev Stats, it is specifically provided that “a party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not particularly specified in the motion.” Accordingly, in Shanowat v. Checker Taxi Co., Inc., 48 Ill App2d 81, at 94, 198 NE2d 578, the court stated:

“[Defendant complains of several alleged errors in instructions tendered to the jury. However, since defendant failed to specifically point out the instructions objected to in its motion for a new trial, we may not consider such alleged errors.”

Defendants next contend that the entire testimony of Dr. Burhans should have been stricken by the court upon their motion, as Dr. Burhans admitted on cross-examination that someone else told him that the body which he was about to examine to determine the medical cause of death was the body of Earl J. Johnson, and that consequently Dr. Burhans’ entire testimony was based on hearsay. Again, we are precluded from passing on the validity of this argument, as the defendants also failed to raise this issue in their post-trial motion.

The main thrust of defendants’ appeal is that plaintiff failed to prove negligence on the part of defendants, and that plaintiff’s intestate was guilty of contributory negligence as a matter of law. The complaint charges defendants with negligence in violating the statute requiring vehicles to stop and yield right-of-way to vehicles on a preferred highway which are approaching so closely as to constitute an immediate hazard; with failing to keep a proper lookout for traffic on Route 88 before entering the intersection; and with failing to operate the school bus with care commensurate to existing conditions.

The issues of negligence and contributory negligence, being issues of fact, were for the jury to determine, and the determination of these issues by the jury cannot be set aside by a court of review unless palpably erroneous, or in other words, unless the jury’s determination of these issues is contrary to the manifest weight of the evidence. A court of review cannot invade the function of the jury by substituting its judgment for that of the jury on questions of fact fairly submitted, tried, and determined from the evidence which did not manifestly preponderate either way. Izzo v. Zera, 57 Ill App2d 263, 205 NE2d 644; Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804.

The evidence in this case, with few exceptions, is not conflicting. From this evidence fair-minded men might rightfully draw different inferences and rightfully reach different conclusions. The jury could properly infer from the length of the skid marks of the decedent’s vehicle that the decedent saw the school bus starting to pull out onto' Highway 88 when he was 185 feet from the bus, and from this inference the jury might reasonably conclude that if the driver of the school bus had been keeping a proper lookout for traffic on Route 88, he would have seen the decedent’s vehicle when it was within the same range of distance. The jury might also infer from the fact that the decedent was driving upon a preferred highway with his lights on, and in the proper lane of traffic, and because decedent applied his brakes when at least 185 feet away, that the decedent was, at the time of the impact, exercising due care. We concede that the jury might have drawn some contrary inferences and conclusions regarding the issues of negligence and contributory negligence from the facts in the record, but this possibility merely emphasizes the rule that the questions of negligence and due care, when composed of qualities sufficient to cause reasonable men to arrive at different conclusions, should not be determined as matters of law. Ney v. Yellow Cab Co., Inc., 2 Ill2d 74, at 84, 117 NE2d 74.

We conclude, therefore, that the issues of negligence and contributory negligence were properly submitted to the jury, and that the jury’s determination of these issues was not contrary to the manifest weight of the evidence. Accordingly, the judgment order of the Circuit Court of Peoria County is affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles W. Zaeske, Defendant-Appellant.
    Gen. No. 65-52.
    Second District.
    December 29, 1965.
    Richard W. Husted, of Elgin, for appellant; William R. Ketcham, Esq., State’s Attorney, and Raymond M. Strass, Assistant State’s Attorney, both of Carpentersville (Raymond M. Strass, of counsel), for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: JUSTICE LYONS.

text:
    Budo Vukasinovich, Plaintiff-Appellant, v. Ljubomir Rankich and Djole Lipovich a/k/a George Lipovich, a/k/a George A. Lipovich, a/k/a George Lipovic, Defendants-Appellees.
    Gen. No. 50,006.
    First District, Second Division.
    November 30, 1965.
    Rafferty, Scheele & Weber, of Chicago (Samuel H. Fleischer and William H. Murphy, of counsel), for appellant; Gary D. Friedman, of Chicago, for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    Benjamin Fisher for the Use of La Conia Johnson, Plaintiff-Appellant, v. Inter Insurance Exchange of Lake States Automobile Association, Defendant-Appellee.
    Gen. No. 50,269.
    First District, Second Division.
    November 30, 1965.
    Hanley and Land, of Lansing, for appellant.
    Jerome D. Fireman, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

La Conia Johnson sued Benjamin Fisher to recover damages to her automobile. Plaintiff’s car was parked. The defendant’s car went out of control and struck plaintiff’s car. A summons was served on the defendant on February 29, 1964, returnable on March 6, 1964. The defendant failed to appear and a default order was entered. On March 23, 1964, judgment was entered against defendant for $859.22. An affidavit in garnishment was filed and a garnishee summons served on Inter Insurance Exchange of Lake States Automobile Association, hereinafter called the garnishee. The garnishee answered that it was not indebted to defendant. Plaintiff contested the answer. On July 8, 1964, in an ex parte trial, a judgment for $870.72 was entered in favor of defendant for use of plaintiff, and against garnishee. The latter was not represented at the trial. Within 30 days the garnishee moved to vacate the ex parte judgment against it. On August 27, 1964, the court vacated the judgment against the garnishee.

The garnishee filed an answer and admitted that it issued a policy of insurance covering liability of the defendant, Fisher, for property damage caused by the wrongful operation of his automobile. The answer recited that the terms of the policy contained the following conditions:

“Condition No. 5. If claim is made, or suit is brought against the insured, he shall immediately forward to the Exchange, every demand, notice, summons or other process received by him or his representative.
“Condition No. 7. No action shall lie against Exchange unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy.”

The answer concluded by alleging that defendant, Fisher, failed to send a copy of the summons to the garnishee and that the first notice that it had of the lawsuit was when the garnishment summons was served upon it. On the trial of the issue, the court entered judgment in favor of the garnishee and against plaintiff, who appeals.

The garnishee had knowledge of the fact that on March 15, 1963, Fisher’s automobile struck the parked automobile of La Conia Johnson. The suit against Fisher was begun on February 26, 1964. Fisher did not send or deliver to the garnishee the summons that was served on him, as required by Condition No. 5 of the policy of insurance. The trial court found that the defendant had no notice of the lawsuit sufficient to locate and defend the suit and that it did not take any steps which would constitute a waiver of Condition No. 5. The trial judge rejected the testimony of Fisher regarding a telephone conversation between him and a woman telephone operator in the office of the garnishee.

After a careful reading of the transcript of the testimony we are satisfied that the judgment is not against the manifest weight of the evidence. Therefore the judgment in favor of the garnishee is affirmed.

Judgment affirmed.

BRYANT and LYONS, J J., concur.


text:
    Ernest Felton, Sr., Plaintiff-Appellant, v. Joseph Coyle, et al., Defendants-Appellees.
    Gen. No. 50,317.
    First District, Second Division.
    November 30, 1965.
    Jurco, Damisch & Sinson, of Chicago (Junie L. Sinson and James R. Mitchell, of counsel), for appellant.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Oswell G. Treadway, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

On April 10, 1959, the grievances of which plaintiff complains allegedly took place. On April 10, 1961, two years thereafter, he filed his complaint in the instant action. On July 31, 1961, he filed his amended complaint. On May 2, 1963, a third alias summons was issued. It was filed on May 17, 1963, with a return by the sheriff that Dr. Joseph Coyle was served on May 9, 1963. On June 7, 1963, Dr. Coyle entered his appearance and filed a jury demand. In June 1963, Dr. Coyle filed a motion for an order dismissing him as a defendant under Supreme Court Rule 4(2). On June 27, 1963, the court denied Dr. Coyle’s motion to dismiss. Thereupon Dr. Coyle filed his answer to the amended complaint. On December 11, 1964, the case came on for trial before another judge, whereupon Dr. Coyle renewed his motion to dismiss the action as to him on the ground that plaintiff had not shown reasonable diligence to obtain service upon him. On December 11, 1964, the court granted the motion of Dr. Coyle to dismiss the cause for failure of plaintiff to show reasonable diligence to obtain service upon him and the suit was dismissed as to him with prejudice and judgment entered accordingly. The court found that there was no just reason to delay enforcement of or appeal from the judgment. Plaintiff appeals.

Plaintiff’s theory of the case is that it was error to dismiss Dr. Coyle for failure to have him promptly served with process since the record shows that the original summons was placed shortly after the suit was filed, that three alias summons were placed for service, that the last alias summons was in fact served on defendant, and that the dismissal violated the mandate of the Civil Practice Act that disputes be resolved on their merits insofar as possible. Dr. Coyle’s theory is that the plaintiff failed to exercise reasonable diligence to obtain service upon him and that under the law and provisions of Supreme Court Rule 4(2), the trial judge was correct in dismissing the supposed cause of action as to Dr. Coyle and entering judgment. Supreme Court Rule 4(2) states that if the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed on the application of any defendant or on the court’s own motion. The fact that the plaintiff obtained service strongly supports his contention that he exercised reasonable diligence to obtain service. Hahn v. Wiggins, 23 Ill App2d 391, 163 NE2d 562. The original summons was placed for service on Dr. Coyle shortly after the complaint was filed. Thereafter, three alias summons were placed for service. This defendant was served with the third alias summons. We do not think that the record supports the contention of Dr. Coyle that plaintiff failed to exercise reasonable diligence to obtain service upon him.

That part of the order of December 11,1964, dismissing the cause with prejudice as to Dr. Joseph Coyle is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with these views.

Order reversed and cause remanded with directions.

BRYANT and LYONS, JJ., concur.


author: GOLDENHERSH, P. J.

text:
    Frank W. Schneider, et al., and Susan Nordyke, a Minor, by Charlotte Nordyke, Her Mother and Next Friend, Plaintiffs-Appellants, v. William C. Wedding, Defendant-Appellee.
    Gen. No. 65-21.
    Fifth District.
    December 20, 1965.
    Emerson Baetz, of Alton, for appellants.
    Eeed, Armstrong and Gorman, of Edwardsville, for appellee.
   GOLDENHERSH, P. J.

Plaintiffs appeal from the judgment of the Circuit Court of Madison County, entered on jury verdicts finding the issues for defendant. Plaintiffs contend that the trial court improperly excluded the testimony of a witness called by plaintiffs, and thereafter erroneously sustained defendant’s objection to plaintiffs’ offer of proof.

Plaintiffs sued for damages for personal injuries suffered when an automobile occupied by plaintiffs and an automobile driven by defendant, collided. Simply stated, the issue of negligence turns on which of the two vehicles was in the wrong lane of travel at the time of the collision.

The plaintiffs, Frank W. Schneider and Ruby M. Schneider, had testified that the defendant’s car had only one headlight. Plaintiff called one Louis Wiedman who testified that he lived approximately 1,000 feet south of the point where the testimony of other witnesses shows the collision to have occurred, that on the evening in question he drove out of his driveway onto the highway, turned to the south, traffic was light, and about 500 feet south of his home, he saw an automobile being driven in a northerly direction. He was asked what he noticed about the automobile. Defendant objected on the ground that the testimony was “immaterial and remote.” The court sustained the objection. He was then permitted to testify that he continued on his trip in a southerly direction, that approximately 20 minutes later, he was returning to his home, and saw a group of cars, flashing lights, and a state trooper’s car, about 1,000 feet north of his house. Plaintiff made the following offer of proof. “If Mr. Wiedman had been allowed to testify, ... he would have testified that he noticed no trucks headed in a northbound direction but he did notice a passenger vehicle which seemed to have one headlight, and this passenger vehicle passed him headed in a northerly direction in a southbound lane, that would be the easterlymost southbound lane, about three-quarters of the vehicle was over in the easterlymost southbound lane. He would further have testified that he was gone approximately 20 minutes, 25 minutes, I believe, and when he returned he saw the collection of vehicles in the roadway.”

Defendant objected to the offer of proof as being immaterial and calling for evidence “remote and inadmissible.” The court sustained the objection.

In support of their contention that the trial court erred in its rulings, plaintiffs cite Walsh v. Murray, 315 Ill App 664, 43 NE2d 562, and a number of cases from foreign jurisdictions, most of which are found in an annotation which appears at 46 ALR2d 14. Defendant cites the ALR2d annotation and several Illinois cases which are hereinafter discussed.

In the case of Hanck v. Ruan Transp. Corp., 3 Ill App2d 372, 122 NE2d 445, the Appellate Court approved the trial court’s exclusion of testimony that at a point approximately 800 feet east of the point of collision, a trailer had swung across the center line and crowded the car in which the witness was riding, off the road. The Appellate Court, at page 381 of its opinion, stated that even admitting the defendant’s vehicle crossed the center line 800 feet from the scene of the accident, such fact would not of itself tend to prove that such vehicle was being negligently operated just prior to and at the time of the collision, and in the absence of a showing that the truck continued to swing across the highway from the point where the witnesses saw it, to the point of collision, the evidence was not material.

In Flesberg v. Prince Warehouse Co., 37 Ill App2d 22, 184 NE2d 813, the Appellate Court held that the trial court erred in permitting a witness to testify that at a point approximately a mile and one-quarter south of the place of collision, defendant’s truck was to the left of the center line, and another witness to testify that about one-half mile from the point of collision, when the car in which the witness was riding attempted to pass defendant’s vehicle, the trailer veered to the left, the back dual wheels came over the center line, and caused the automobile in which the witness was riding to take to the left shoulder to avoid a collision. At page 27, the court said: “Admitting that the defendants’ tractor-trailer truck crossed over the centerline of the highway at a point at least one-half mile south of the scene of the collision, such evidence is not proof that defendants’ vehicle was being operated in a negligent manner immediately prior to and at the time of the collision in question. Hanck v. Ruan Transport Corp., 3 Ill App2d 372, 122 NE2d 445.”

We are of the opinion that the trial court erred in admitting the testimony of LeRoy Kenney and Robert Soberri concerning the operation of defendants’ truck at a too remote distance from the point of collision. The manner' of operating a motor vehicle at some place remote from the happening in controversy can be varied or changed innumerable times in the interim. Conceding that defendants’ truck did cross the center line of the highway one-half mile south of the point of collision, such fact or facts would not in itself tend to prove that such vehicle was being negligently operated just prior to and at the time of the actual collision.”

In Walsh v. Murray, 315 Ill App 664, 43 NE2d 562, the court in considering the defendant’s contention that the trial court erred in admitting certain testimony, reviewed the evidence, and stated its conclusions, as follows: “The testimony of the two officers (deputy sheriffs), discloses that they were traveling upon the same highway being traveled by appellant, and in the same direction; that about a half mile from the intersection, a green sedan passed them at a rapid rate of speed, and disappeared around a curve in the road. The officers proceeded until they came to the curve, which was about a quarter of a mile from the intersection, when they saw that an accident had occurred. They then increased the speed of their car, passing all cars between them and the intersection. Upon arriving at the scene of the accident, they found a green sedan involved, answering the description in color and design as the one that had just passed them. This was appellant’s car. One of the officers states that, in his opinion, the green car was traveling about 60 miles an hour when it passed their car. Only a few seconds elapsed between the time the green car passed the officers and their arrival at the scene of the accident. They saw no other green car. Blackburn testifies that no car passed through the intersection between the time of the accident and the arrival of the officers.

“Under such circumstances, we do not consider the admission of the testimony of the officers regarding the speed of the green car at the time it passed them, to constitute error. The facts and circumstances in evidence, were proper for the consideration of the jury upon the question of the identity of appellant’s car, and whether the speed at which it was traveling at the time it passed the officers was maintained to the place of the accident.”

In Cooper v. Cox, 31 Ill App2d 51, 175 NE2d 651, the court, at page 58, said, “Defendant argues that the statement as to her speed, given by a witness travelling in the direction opposite to her and passing her about one-third of a mile north of the place of the accident, should have been stricken upon her motion, in the absence of supporting evidence that such speed was maintained to the place of the accident. Admission of such testimony is within the discretion of the trial court. In exercising that discretion the court should determine whether the facts of the case warrant the admission of the testimony without such supporting evidence. (Citing cases.)”

In our opinion the conclusion reached in Hanek and Flesberg unduly restricts the admissibility of this type of evidence. Certainly, as stated in the opinions, what transpired at a distance from the scene of a collision, would not of itself prove that a vehicle was being operated in a negligent manner at the time of the occurrence, but to require testimony that the misconduct was persisted in during the interval between the time when the witness observed the vehicle and the time of the collision, imposes too severe a limitation on the admissibility of the evidence.

The admissibility of such evidence is within the discretion of the trial court and is to be determined by the facts and circumstances of each case. In the case at bar, unlike Hanck, Flesberg and Cox, (supra), the proffered testimony does not purport to identify the defendant’s automobile as the same one which the witness had passed. Unlike Walsh v. Murray, the testimony does not present circumstances from which the jury could reasonably infer that it was the same vehicle. In the absence of identification of the vehicle, or proof of circumstances from which the jury could reasonably infer that it was the same vehicle, the trial court properly excluded the testimony, and the judgment is therefore affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


text:
    Robert J. Kirkpatrick, Plaintiff-Appellee, v. United Federation of Postal Clerk’s Benefit Association, Defendant-Appellant.
    Gen. No. 65-56.
    Fifth District.
    December 23, 1965.

      Craig & Craig, of Mt. Vernon (Glenn E. Moore, of counsel), for appellant.
    Elmer Jenkins, of Benton, for appellee.
   GOLDENHERSH, P. J.

Defendant, National Postal Transport Association, formerly United Federation of Postal Clerk’s Benefit Association, appeals from the judgment of the Circuit Court of Franklin County in the amount of $4,000, entered upon a jury verdict in an action brought to recover permanent disability benefits. This court previously reversed a judgment in favor of the plaintiff, and remanded the cause for a new trial. Kirkpatrick v. United Federation of Postal Clerk’s Benefit Ass’n, 52 Ill App2d 457, 202 NE2d 136.

Defendant is a fraternal beneficiary association whose membership is limited to regular and substitute employees of the United States Postal Transportation Service. On April 18, 1951, plaintiff, then employed as a substitute railway postal clerk, applied for membership in defendant’s “Beneficiary Department,” and on May 5, 1951, defendant issued to plaintiff its Beneficiary Department Certificate. The Certificate provided for the payment of weekly benefits in the event plaintiff suffered bodily injuries which wholly and continuously disabled him from following the occupation of a Postal Transportation Clerk in the Postal Transportation Service of the United States, as follows:

1. A sum of $24.50 per week for the first seven weeks, and $31.50 per week thereafter for such period as he may not be able to perform service as a Postal Transportation Clerk, or follow any other employment, but not exceeding fifty-two weeks from day of injury resulting through causes as aforesaid. The same to be paid as provided by the laws of this Association after the required proofs have been filed with the Secretary.
3. If said member during the continuance of this Certificate shall sustain through causes as aforesaid injuries that shall permanently disable and wholly incapacitate him from performing any labor, or following any occupation, he shall receive for such injury the sum of $24.50 per week, payable in monthly payments until the death of said member, or until the full amount of Certificate shall be paid; provided, however, that proof of permanent disability must be made in accordance with the provisions of the Constitution and Laws of this Association.

The Certificate provided that the Constitution and By Laws of the Association, the Certificate, and other enumerated documents, comprise the agreement between the parties.

Article XVIII, of defendant’s Constitution provides:

Section 1(c). “Any member of the benefit Association receiving injuries by accidental means alone, from violent external means, not the result of his own vicious or intemperate conduct, upon filing proper proof of disability on the official blanks of the Association, shall receive from the Benefit Fund of this Association a weekly benefit of Twenty-Four Dollars and Fifty Cents ($24.50) per week, for the first seven (7) weeks and Thirty-One Dollars and Fifty Cents ($31.50) per week thereafter, beginning on the day disability first arises, for such period as he may not be able to perform service as a postal employee or follow any other employment, but not exceeding fifty-two weeks from date of injury. In case of prolonged disability, partial payment of such benefits shall be allowed. Any member who has a recurrence of an injury within fifty-two weeks after original benefits have ceased, shall be entitled to continuing benefits under the original injury for such period as he may not be able to perform service, but not exceeding a total of fifty-two weeks.”

In 1958 the following provision was added:

Section 1(d). “Benefits for injury to the back cannot exceed ninety days; except that benefits for herniated or ruptured discs may be compensated up to one hundred eighty days, and except that cases of traumatic fracture', parted or severed spinal cords shall not be subject to these limitations.”
Section 2. “Any member of the Benefit Association who, during his membership, shall sustain by accidental means alone, as provided in Section 1 of this Article, such injuries as shall permanently disable and wholly incapacitate him from performing service as a postal employee or following any other employment, shall be entitled to and receive for such injury, the sum of Thirty-One Dollars and Fifty Cents ($31.50) per week, payable in monthly payments, until the death of said member or until the full amount of the certificate shall be paid, and when said amount has been tendered in full, the certificate of membership held by the member must be surrendered to the Association.” Section 2(b). “No Claim for total or permanent disability benefits shall be allowed unless based upon a report of a disinterested physician or physicians selected by the Benefit Association nor unless the member has completed proof of claim under Section 1, Article XVIII, of the Constitution and has drawn at least forty-two weeks’ benefits under said Section. All claims for permanent disability, under this Section of the Constitution, shall be filed with the National Secretary through the President of the Branch or Local to which the member belongs. The Branch or Local President shall send the claim to the National Secretary. Such claims must be filed on the official blanks of the Association. Said application may be filed with the Branch or Local President any time after the expiration of the aforementioned forty-two weeks benefit, but not later than ninety days from the termination of the fifty-two weeks period from date injuries were sustained which caused the disability.”
Section 4. “After the claim for disability or death has been completed and filed with the Secretary of the Association, it shall then be passed upon by a Committee on Claims. Upon the approval of a weekly benefit claim by the Secretary or the Committee on Claims an order shall be drawn on the Secretary to pay said claim, and the order shall be signed by the President and the amount remitted to the certificate holder.”
Section 8. “No subordinate body of this Association, nor any officer or member thereof, shall have the power or right to waive or modify, any provisions of this constitution or of the contract, and no custom or course of dealing upon the part of such body or person shall have the effect of waiving or modifying any such provision of the Constitution or of the contract.”

Defendant contends that as a matter of law, plaintiff did not make application for permanent disability benefits within the time required by the agreement between him and the defendant, that the conditions required under the agreement for the payment of permanent disability payments were not met, that plaintiff failed to prove he was totally and permanently disabled within the meaning of the agreement, and the trial judge should have directed a verdict for defendant.

On June 17, 1955, at about 11:15 p. m., Plaintiff was working in a mail car located in the Illinois Central yards in Chicago. In a switching operation the mail car was “rammed” and plaintiff was thrown off balance, striking his back against a steel rack. Although stunned momentarily, he thought he was uninjured and continued with his work of sorting mail. Plaintiff’s regularly scheduled assignment for that night was to ride the mail car from Chicago to Carbondale. About an hour after the mishap, he felt a stinging pain in his back, and from that time until his arrival at Carbondale some 10 or 11 hours later, he experienced difficulty with, and pain in, his back. Upon arriving at Carbondale on June 18th, a Saturday, he went to bed, and on Monday saw Dr. Clarence Kelly at DuQuoin. He was treated by Dr. Kelly, and for some period of time was in the hospital. On September 22, 1955, using forms supplied by defendant, he filed an application for benefits, stating that he was unable to work for a period of 36 days, commencing on July 18, 1955, and terminating on August 22, 1955. A medical certificate filed with the application shows Dr. Kelly had diagnosed plaintiff’s difficulty as a “slipped disc.” Defendant’s committee on claims, consisting of three of its national officers, approved plaintiff’s application and he was paid benefits for 5 weeks, at $24.50 per week.

On March 7, 1959, plaintiff filed an application for benefits claiming disability from January 22, 1959, through February 20, 1959. The application states he was disabled because of injuries sustained on June 17, 1955, which recurred on January 16, 1959. He describes the recurrence as being “brought on by taking in mail and turning in a quick twist.” The application for benefit includes the certificate of Dr. Kelly, describing the treatment rendered plaintiff, and stating that he had made a diagnosis of “ruptured intervertebral disc due to accident at work 1955.” The application was approved by defendant’s claims committee and plaintiff was paid benefits for 4 weeks and 2 days, totaling $105.00.

On April 29, 1959, plaintiff filed an application for benefits stating he was disabled between the dates of February 21, 1959, and April 28, 1959. He attributed his disability to an injury on June 17, 1955, with “recurrence as of January 16, 1959.” The claims committee approved the application and he was paid benefits for 9 weeks and 4 days.

On July 26, 1959, plaintiff filed another application for benefits, describing the occurrence on June 17, 1955, and claiming disability benefits for the period between June 11, 1959, and July 28, 1959. The claim was approved and plaintiff was paid benefits for 43 days. The application bears the notation “Total of 140 days on recurrence only 40 more days under const.”.

On October 30, 1960, plaintiff filed an application for benefits, describing the occurrence of June 17, 1955, and claiming benefits for the period commencing on April 8, 1960, and terminating on October 25, 1960, a total of 201 days. A hospital statement attached to the application shows plaintiff’s admission for treatment of “old back injury sustained 6/17/55.” It reflects a diagnosis of herniated nucleus pulposis left, L-5, -S-l, and a hemilaminectomy L-5, and removal of protruded disc, performed on May 19, 1960. The claims committee approved the claim for a period of 40 days and rejected the claim insofar as it exceeded the 40 day period.

On October 12, 1961, plaintiff filed an application for benefit claiming total disability on and after August 6, 1961. The medical certificate attached to the form shows plaintiff to be totally disabled. The claims committee rejected the claim, and in a space on its form headed “remarks,” noted “180 days has been paid.”

We are not here confronted with the task of construing the provisions of article XVIII, section 1(c) of defendant’s Constitution, since defendant itself has interpreted it. Defendant, by payment of plaintiff’s claims of March 7, 1959, April 29, 1959, and July 26, 1959, construed this portion of its constitution to provide benefits for the recurrent periods of disability resulting from the injury suffered on June 17, 1955. It erred, however, in limiting the benefits payable to a total of 180 days’ disability. Plaintiff’s claim is predicated upon the injury of June 17, 1955, and the revision of defendant’s Constitution in 1958, cannot affect his rights.

Section 2(b) of article XVIII (supra) provides that no claim for total or permanent disability benefits shall be allowed unless, inter alia, the claimant has drawn at least forty-two weeks’ benefits under section 1 (supra). It further provides that the application may be filed any time after the expiration of the aforementioned forty-two weeks’ benefit, but “not later than ninety days from the termination of the fifty-two weeks period from date injuries were sustained which caused the disability.”

Ambiguous provisions or equivocal expressions seeking to limit an insurer’s liability will be construed most strongly against the insurer and liberally in favor of the insured. Mosby v. Mutual Life Ins. Co. of New York, 405 Ill 599, 607, 92 NE2d 103. Defendant has interpreted section 1 (c) as providing for fifty-two weeks’ benefits for periods of disability which need not be continuous, nor under defendant’s interpretation, must they have occurred within fifty-two weeks of the date on which the claimant’s injury was suffered. By its erroneous application of the 180 days of benefits limitation, defendant, by its own act, has made it impossible for plaintiff to have drawn 42 weeks’ benefits. There has been no “expiration of the forty-two weeks’ benefit” and the application for permanent disability benefits was timely filed with defendant.

We now consider defendant’s contention that plaintiff has failed to prove he is totally and permanently disabled as required by the terms and provisions of the Benefit Certificate and defendant’s Constitution and By Laws. Section 2 (supra) provides for the payment of permanent disability benefits when a member has sustained “such injuries as shall permanently disable and wholly incapacitate him from performing service as a postal employee or following any other employment.”

Plaintiff testified that mail handlers employed by the railroad company brought the mail to the mail car door, that it was his duty to “work” the mail, which meant sorting it, and getting it ready to dispatch at the various stations en route. He handled bags of mail which ranged in weight from 80 to 125 pounds. In the normal course of a trip, he handled between 125 and 175 bags, but some of them were handled several times. He worked his regularly assigned runs, except for the periods of disability upon which his claims for disability benefits were based. He was treated by physicians at DuQuoin, and was hospitalized both in DuQuoin and in the U. S. Government Public Health Hospital in Chicago. He underwent surgery in the Chicago hospital in May, 1960, and was hospitalized there for four weeks following the surgery. Upon release from the hospital, he was confined to his bed at home for a short time, and was confined to his home for several weeks. He returned to work in the latter part of October, 1960, and thereafter worked for several short periods of time until August, 1961. He has not worked or earned any money since August, 1961.

Since January, 1962, plaintiff has been attending classes at Southern Illinois University at Carbondale. At the time of trial he was carrying 14 hours of work, attending classes five days a week. He travels a round trip of 70 miles between his home and the University. He is able to drive a car, and has driven to and from school, but usually rides with someone else. He does not lift or carry anything heavy, and does not participate in any sports.

Dr. Talvaldis Kisle, a physician, called by plaintiff, testified that plaintiff was transferred into his care from the Department of Labor, Bureau of Employees Compensation, in Chicago. He had treated plaintiff, and known of his back injury, since 1958. He described the surgical scar on plaintiff’s back. In response to a question propounded by plaintiff’s counsel, he stated that based upon the treatments administered to, and examinations of, plaintiff since 1962, based upon his knowledge of plaintiff’s condition and upon a reasonable degree of medical certainty, he was of the opinion that plaintiff was permanently and totally disabled. On Cross-examination, he stated he had not seen plaintiff since October 29, 1964, approximately four months before the trial.

Defendant contends the evidence shows plaintiff is not incapacitated from performing any labor, or following any occupation, that he is, in fact, “employed” as a student, and is not totally and permanently disabled within the meaning of the agreement.

This court has examined the numerous cases cited by counsel, the annotation found at 24 ALR 203 and the annotations supplementing it, the material found in Vol 29A Am Jur 622, 45 CJS 976, and the excellent article in 64 Ill Law Forum 382. We shall not attempt to discuss or reconcile the many conflicting decisions. In our opinion the weight of authority requires us to construe the agreement here involved to mean that plaintiff was totally and permanently disabled within the meaning of the agreement if he was unable to perform the duties of his regular occupation or any similar employment.

The issue of his disability has been submitted to two juries, both of which found for plaintiff. The evidence supports the verdict, and the judgment is affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: EBERSPACHER, J.

text:
    In the Matter of the Estate of Ethel A. Veihman, an Incompetent, Now Deceased. John E. Schrodt, Administrator of the Estate of Ethel A. Veihman, Deceased, Plaintiff-Appellee, v. E. Guy Mundy, Conservator of the Estate of Ethel A. Veihman, an Incompetent, Now Deceased, Defendant-Appellant.
    Gen. No. 64-101.
    Fifth District.
    December 27, 1965.

      Townsend, Townsend & Schafer, of Mt. Carmel, for appellant.
    Foreman, Meachum & Clapper, of Danville, and Woodcock & Ellsworth, of Mt. Carmel, for appellee.
   EBERSPACHER, J.

• On April 5, 1948, E. Guy Mundy was appointed Conservator for Ethel A. Yeihman, an incompetent, by the County Court of Wabash County, and filed annual reports thereafter until the death of his ward. His first annual report was filed on January 6, 1944, covering the period to January 1, 1944. In this first report he listed his fees at $125, but on approval on February 18, 1944, the Court made a finding that his fees to January 1, 1944, should be $475 and directed the Conservator to take additional fees of $350, which Conservator did and reported in the next report. Thereafter, shortly after the first of each year, the Conservator filed an annual report for the preceding calendar year. Upon approval by the Court of such annual report, the Court in its order determined and fixed the fee for the preceding year, which was then reported and shown paid in the next report. This practice is shown followed until 1954. The 1954 report, and subsequent reports, included the Conservator’s fee. They were approved, and in most cases the Order of Approval included an allowance of the Conservator’s fee in the amount shown by the report, but no fixing of the fee by the Court. The record shows that the Order of Approval (including the fixed fee or the allowed fee), of each of the current reports was entered without the giving of notice, or the appointment of a Guardian ad Litem.

Ethel A. Veihman died July 17, 1968, and on August 15, 1963, Mundy filed his final report as Conservator covering January 1, 1963 to August 15, 1963, in which credit was asked for $680 for fees for 1963. On February 24, 1964, the Court set the final report for hearing and appointed an attorney as Guardian ad Litem, who on March 6, 1964, filed an answer demanding strict proof, and on June 2, 1964, filed his further answer in which he set forth examination of all court records and of the account book of the Conservator; it also alleged that the fees of the Conservator for the duration of the Conservatorship appeared reasonable and commensurate with services performed and that the Guardian ad Litem was satisfied as to the truth and correctness of all matters over the long period during which Guy Mundy served as Conservator.

Afterward John E. Schrodt, Plaintiff, having become Administrator of the Estate of Ethel A. Veihman, deceased, filed objections to the final report and all annual reports of the Conservator and to the answer of the Guardian ad Litem, alleging as one of his objections, excessive fees to the Conservator for all years excepting from April 5, 1943, to December 31, 1943. The objections also included charges of improper management of the estate, with which we are not concerned, although argued in appellee’s brief, since no cross appeal was filed. The objections included an exhibit setting forth the income, the Conservator’s fee, and the percentage of the income taken for a fee for each year. These percentages vary from 5.2% to 15.4% with the percentage for the period in 1963 being 28.3% of the income for that period.

The record discloses that in each year through 1956, more than 50% of the income resulted from the production of oil on a 200-acre farm of which about 100 acres were tillable, owned by the ward and her daughter; the farm had apparently been producing oil previous to the appointment of Mundy, and as Conservator throughout the entire period, all he did with reference to the oil income, was to receive the checks, deposit them, and keep the proceeds properly invested. Other income came from rental of a town property owned by the ward and the landlord’s share of the farm income. In 1957 and the subsequent years, the largest item of income was interest from U. S. Bonds, and from paid-up stock in building and loan associations, the income from the oil decreasing. Evidence at the hearing disclosed that the Conservator thought there were 7 oil wells on the farm at one time but that the Conservator did not know how many were producing at the time of the hearing; and that the farm income was paid to the Conservator by the tenant, although he and the tenant made decisions as to crops to be planted, fertilization and crop rotation. The Conservator caused minor repairs to be made to the farm buildings from time to time. The Conservator testified that the farm was located about one mile from the county seat in which he resided. He had no definite knowledge as to acreage of the various fields, yields, or fertilizers used, and was, according to his testimony, primarily dependent on the tenant concerning the administration of the farm. During the Conservatorship, the State acquired a portion of the farm, including the house, for highway purposes for which the estate was paid in excess of $5,000.

Examination of the reports discloses that the assets of the estate as shown by the 1943 report, exclusive of real estate and the oil wells thereon, amounted to $11,779.33 and that the assets shown by the final report, excluding real estate, amounted to $80,642.14. The parties stipulated that the total income for the period for which the Conservator’s fees were objected to was $147,359.40; from the farm $19,006.93; rent from the building $8,214.04; from interest and oil royalties $120,138.43; and that the total fees charged by the Conservator for the period amounted to $11,955. The increase in the value of the estate is principally accounted for by the sale to the State and the fact that the expenditures on behalf of the ward, who was during the earlier years in a nursing home, and later in a State institution, were comparatively small. Total expenditures, including repairs to real property, taxes, expenses of administration, and sustenance of the ward, annually amounted to $1,400 to $4,000, with the personal living expenses of the ward remaining constant at approximately $1,000 annually.

On behalf of the objector, the trust officer of a Dan-ville bank, testified that the usual and customary fees for a Conservator were 5 % of ordinary income, and where there were added responsibilities such as farm management, 7% would be usual and customary. One of the Conservator’s witnesses testified that a local bank, which had actively engaged in administering trusts, charged 5% of gross income for performing ordinary duties of a conservatorship, but did not furnish farm management services, but also charged an acceptance charge of 14th of 1% and a 1% termination charge, both based on total assets. The Guardian ad Litem was called by the Conservator and testified that after thorough examination of the accounts, realizing that the fees amounted to 8.1% of the gross income, he considered the fees reasonable, and concluded that in some respects he considered the conservatorship unusual, but did not point out any unusual aspects.

The Court, after hearing the evidence entered an order containing the following findings:

1. That each of the annual reports were presented and approved by the court in an ex-parte proceeding, which reports had inserted therein the conservator’s fees and in some cases attorney fees, without any formal hearing or notice and without anyone to object to the report of fees therein, there having been no Guardian ad Litem appointed to represent the interest of the ward, and the sole living person who might have objected was the incompetent’s daughter, Camille C. Veihman, for whom E. Guy Mundy was also conservator of the estate.
2. That the Court has jurisdiction in this hearing to reexamine all of said annual reports and the objections raised thereto.
3. The Court finds from the evidence that for the services rendered by the conservator for the estate he was entitled to and should receive a reasonable and fair fee therefore, and the court finds that a fair and reasonable fee should have been and is as follows:
(a) 7% of all building, and farm rents and farm income, other than oil royalties, said conservator having helped manage and supervise the farm and rental buildings, said rents and income being $27,220.97.
(b) 5% of all other income, said income from oil royalties, dividends, and interest being $120,138.43, said income being ordinary income involving no services other than ordinary bookkeeping services.
4. That fees heretofore charged by Conservator in excess of said 7 % and 5 % are excessive.
5. That conservator has performed or rendered no special or unusual service for the estate of the ward that would justify the allowing of or charging other than customary fpes.
6. That the conservator has acted reasonably and in accordance with his duties in his investments of assets of the estate and in maintaining the Surety Bond including the annual premiums thereon.
7. That the conservator had available and tendered in court all receipts, vouchers, and books covering the period since his appointment and no mismanagement or irregularities has been shown to the court therefrom except as to the matter of conservator’s fees,

and ordered all objections, except as to the Conservator’s fee, overruled, and “that the Conservator on Final Account be surcharged for excessive fees and compensation in the sum of $4,042.62, being the difference between the $11,955.00 fees received by the conservator and the fair and reasonable fees of $7,912.38.”

From this order the Conservator has appealed, conceding ex parte orders involving Conservator’s annual reports are subject to review upon the filing of the final report, but argues that such rule is only applicable where there has been mistake, fraud, lack of authority or a wrongful use of judgment. He particularly contends that the fixing and approval of the fees was a matter within the sound discretion of the particular judge sitting at the time the fee was fixed or approved, and that it must be presumed that such judge acted with due discretion, since no abuse of discretion is shown, and urges that the fact that the fee was fixed or allowed in ex parte proceedings, does not of itself show wrongful use of discretion.

We do not consider that the discretion of the predecessor judges was an issue in this case. Where there is an absence of fraud or misconduct, and there is no hearing, and no one to object, and no record of any proceeding is made, we cannot say that the predecessor judges performed any act involving discretion, but rather mechanically performed an act of little judicial significance.

In the case of Nonnast v. Northern Trust Company, 374 Ill 248, 29 NE2d 251, affirming 300 Ill App 537, 21 NE2d 796, our Supreme Court said:

“No notice was given when the Trust Company filed its first and final account as conservator, . . . and the probate court properly held that the conservator’s account, as well as the executor’s accounts, were subject to objection by appellees.”

And quoting Mr.. Justice Cardozo, continued:

“Many forms of conduct permissible in a workaday world for those acting at arms length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter that the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of Courts of Equity when petitioned to determine the rule of undivided loyalty by the ‘disintegrating erosion of particular exceptions.’ ”

Appellant argues that the Probate Act makes no requirement that notice of annual reports of a Conservator be given, except where the Veterans Administration is involved. We interpret section 810 of the Probate Act, chapter 3, sec 310 Ill Revd Stats otherwise, and hold that regardless of a showing of fraud or any misconduct, where there is a lack of notice and formal hearing, neither the ward nor his personal representative are bound by the order of approval. The last two sentences of section 310 (supra) are as follows:

“If notice of the hearing on any account except the final account of a guardian or conservator is served on the ward at least ten days before the hearing on the account and the court appoints a guardian ad litem to represent the ward at the hearing in the absence of fraud, accident, or mistake the account as approved is binding upon the ward. Notice of the hearing on any final account of a guardian or conservator shall be given to the ward if he is living and to such other persons and in such manner as the court directs.”

The rule in Illinois is well established and agreed upon. In Horner, Probate Practice and Estates, it is stated:

“In the absence of notice, even a final accounting is not binding on the ward,”

citing Raymond v. Vaughn, 128 Ill 256, 21 NE 566. In James, Illinois Probate Law and Practice, at section 310, on page 341, commenting on section 310 of the Probate Act it is stated:

“The last two sentences are new, and will enable a guardian or conservator to have an order approving a current account made binding on the ward, in the absence of fraud, accident or mistake, thus changing the former law in this regard,”

and in section 310.1 continued:

“If annual or current accounts of a guardian or conservator are approved ex-parte, such approvals are not conclusive, but only prima facie evidence of the correctness of the amount stated,”

citing Hess v. Griffith, 186 Ill App 609 and Lehmann v. Rothbarth, 111 Ill 185. And continuing in section 1396 (b) it is stated:

“If it is desired that the account (other than a final account) as approved shall be binding on the ward, proof of service of notice on him at least ten days before the hearing must be presented, and a guardian ad litem must be appointed by the court to represent the ward at the hearing.”

The fact that the reports were approved or the fees fixed under such circumstances, by a predecessor or predecessors in office does not in our opinion vary the rule.

Having thus disposed of this argument we are now only confronted with whether or not there was sufficient evidence to overcome the prima facie correctness of the Conservator’s fees as previously fixed or determined. The evidence does not disclose that the Conservator performed any unusual or extraordinary functions. While he is to be commended for faithful performance of his duties, and the increase of assets, he did only what the law required, with what appears to have been a minimum of effort. There was testimony as to the usual and customary fees of a Conservator to support the order. The current reports themselves reflect the activity of the Conservator, and the record shows that little business acumen was required to receive oil checks, the farm income, and interest, and nothing more than ordinary ability and accepted business practice was involved in the operation of the business building, and investment of the funds.

As was said in In re Estate of James, Deceased, 10 Ill App2d 232, 134 NE2d 638,

“This Court cannot say that the determination of the trial court is manifestly or palpably erroneous and finds nothing that would justify it in overruling the judgment of the Circuit Court.”

The order of the Circuit Court of Wabash County is therefore affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       The current reports through 1953 were approved, and the fee fixed by the then County Judge, current reports of 1954 through 1961 were approved and the fee allowed by the successor County Judge, and the current report for 1962 was approved by the County Judge, who as Associate Circuit Judge entered the order involved in this appeal.

       A practice commonly followed in the circuit courts, in probate matters where reports are filed, and the moving party does not wish to incur the expense of notice and a formal hearing, to merely note the current reports as “filed;” (rather than “approved” and the fees shown therein as “fixed” or “approved”), is recommended.


text:
    Breemon A. Harp, Plaintiff-Appellant, v. Gulf, Mobile & Ohio Railroad Company, a Corporation, Defendant-Appellee.
    Gen. No. 65-62.
    Fifth District.
    January 4, 1966.

      Cohn, Cohn & Korein, of East St. Louis (Sandor Korein, of counsel), for appellant.
    Griffith & Hoefert, of Alton, for appellee.
   GOLDENHERSH, P. J.

Plaintiff filed suit in the Circuit Court of Madison County, alleging that defendant was a common carrier by railroad, that plaintiff was employed by defendant in furtherance of its business in interstate commerce and brings his suit under the provisions of the Federal Employers’ Liability Act, that plaintiff fell and was injured while on the lot maintained, controlled and used by defendant for parking of its employees’ vehicles. The complaint charges defendant was negligent in failing to provide plaintiff with safe means of ingress and egress to his place of work, failure to provide sufficient lighting whereby plaintiff could see en route to his job, and failure to provide plaintiff with a safe place in which to work. The complaint also contained a general allegation of negligence.

Defendant answered, took plaintiff’s discovery deposition, and filed a motion for summary judgment, supported by affidavits of two of its employees. Plaintiff filed counter affidavits. The court allowed defendant’s motion for summary judgment, entered judgment in favor of defendant in bar of suit, and plaintiff appealed.

The motion for summary judgment states that it is shown in plaintiff’s discovery deposition that he was injured at 10:30 p. m., that he was not “due to go to work” until 11:00 p. m., that on a photograph presented to plaintiff during the taking of the discovery deposition, he marked the exact place at which he fell, and the motion should be allowed for the reasons that plaintiff was not in the course of his employment at the time he fell, and the fall occurred on premises not owned, managed, controlled or used in any manner by defendant.

From plaintiff’s discovery deposition it appears that at 10:30 p. m. on May 21, 1964, plaintiff parked his car in one of 15 parking spaces adjacent to a building known as the Pullman Building, and walked in a northerly direction toward the locker room where he intended to change into his work clothes, that approximately 20 to 30 feet south of the stairs leading to the locker room, he fell into a hole and was injured. The hole was situated 40 to 50 feet north of the place where plaintiff had parked his car. He stated he had always parked in the same general area, that is, on a lot situated to the south of the stairs leading to the locker room. Usually he parked on the east side of the lot, but on the night in question, some one had taken his usual parking space, and he parked at the side of the Pullman Building, which building is situated on the west side of the lot. This was the first time in about six months that he had parked on the side of the Pullman Building. No one had ever told him he could park on the lot, he had seen other of defendant’s employees, including foremen and a master mechanic, park there, and he did likewise. No one had ever told him who owned the property where he parked, or the property where he fell, and so far as he knew it was owned by defendant.

In an affidavit filed in support of defendant’s motion, the affiant identified a lease which showed defendant to be the lessee of certain premises owned by another railroad, and a survey plat of the premises leased. The plat shows the steps leading to the locker room to be 5 feet north of the south boundary of the property leased by defendant, and places the hole, into which plaintiff fell 221/2 feet south of the boundary line, and therefore not on the premises leased to defendant.

A second affidavit filed in support of defendant’s motion states that plaintiff did not fall on property “leased, owned, maintained, used or controlled in any manner by defendant.”

In an affidavit filed by plaintiff in opposition to the motion for summary judgment, the affiant states he has been employed by defendant for many years, that during that time, employees of defendant have parked in the area where plaintiff was injured, that equipment owned by-defendant was regularly moved back and forth across the same area.

In plaintiff’s affidavit filed in opposition to the motion, in addition to what was said in his discovery deposition, he stated he had frequently seen defendant’s equipment move back and forth across the area where he fell.

In the order granting defendant’s motion for summary judgment, the court found that the time factor was insufficient to justify the allowance of the motion. The order continues, “However, inasmuch as it is conclusively shown by the Motion for Summary Judgment that the plaintiff fell upon land not owned or leased by the defendant, and not under defendant’s control, which land was nevertheless used by defendant’s employees and also by defendant in the course of its business, as shown by plaintiff’s Affidavits, and this cause being predicated upon the Federal Employers’ Liability Act and not upon the Workmen’s Compensation Act, in the opinion of the court, there are no cases which would allow an action of this kind against the defendant.” The court further found that the case “does not come under the purview of Section 51 of Title 45, USCA, and known as the Federal Employers’ Liability Act.”

Plaintiff contends that a jury, with reason, could find that defendant was negligent in that its equipment may have created the condition which caused plaintiff’s injury, that since the area in which the plaintiff was injured was in close proximity and adjacent to the entrance to the locker room entrance, defendant failed to provide sufficient lighting, or if defendant did not in fact use, manage, control or own the premises, it was nevertheless negligent in failing to provide a safe approach to the locker room.

Defendant contends that in order to recover under Federal Employers’ Liability Act, plaintiff must prove he was injured while in the course of his employment, and as the result of defendant’s negligence, and neither requisite is present in this case.

The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96, 151 NE2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272.

In Urie v. Thompson, 337 US 163, 69 S Ct 1018, the Supreme Court of the United States, speaking of the Federal Employers’ Liability Act, said, “What constitutes negligence for the statute’s purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs.” The Supreme Court has repeatedly held that if negligence of the employer played any part, even the slightest, in producing injury or death, the employee may recover damages for the injuries which are the consequences of such negligence. Gallick v. Baltimore & O. R. Co., 372 US 108, 83 S Ct 659; Rogers v. Missouri P. R. Co., 352 US 500, 77 S Ct 443.

In Krooker v. Pittsburgh & L. E. R. Co., 258 F2d 876, (CCA-6) the plaintiff was employed in a switching operation conducted several miles from the building where he reported for work. In order to get to the point on the defendant railroad’s tracks where the switching was to be done, it was necessary to cross the tracks of the B & O. For many years there had been a path worn over these tracks, which path led to defendant’s tracks. The plaintiff was injured as the result of a fall on the path. He testified that he was injured on the defendant’s property. There was testimony to the effect that the defendant railroad, at times, had salted the path to melt ice which accumulated there, and that officials of the defendant railroad, including engineers, trainmen, firemen and conductors used the path. The court directed a verdict in favor of the defendant railroad on the sole ground that the accident did not happen on the property of the defendant railroad, but on property of the B & O Railroad, and the defendant had no duty to keep the path in safe condition, notwithstanding evidence of its use by defendant’s employees. In reversing the judgment, the court, at page 878, said, “It requires no citation of authorities, at this late date to support the principle that an employer is under obligation to use due care to provide his employees with a safe place to work. If this principle is limited to work actually being done upon property of the employer there is no proof that Kooker’s accident occurred on the property of the B & O rather than on that of the defending railroad. It is true, of course, that Kooker had the burden of proving a duty of the appellee to keep the path in safe condition but Kooker had long been familiar with the approaches to the defendant’s tracks, with its use by its supervising employees, its previous efforts to promote its safety, and that over a period of thirty years it had been used for access to its own property, both by its employees and others. Kooker’s testimony that he was injured upon the property of the appellee rises to something more than an unsupported conclusion. Certainly there is room for an inference that appellee, whether rightly or wrongly, exercised dominion over the path whereon the accident occurred. At the very least, it presented a question for the jury.

“But the duty of an employer to provide his servants with a safe place to work is not so circumscribed and there are many federal cases which hold that the obligation of an employer may extend beyond its premises and to property which third persons have a primary obligation to maintain. (Citing cases.) ”

The defendant railroad also contended that it was not liable because it had itself established a parking lot which its employees could use. In rejecting this contention, the court, at page 878, said, “Employees of the defendant were left to their choice in using the parking lot to the north or the lot to the south, provided by the appellee. Employees were not required to use its lot and they had for many years, without warning, used the parking lot to the north which required ingress to the working area over the path upon which Kooker was injured.”

In the case at bar, the mere fact that defendant did not own the lot on which plaintiff alleges he fell does not conclusively bar plaintiff’s action. That portion of defendant’s supporting affidavit which states defendant did not use the lot is contradicted by plaintiff’s testimony in the discovery deposition and the statements in his affidavits to the effect that defendant’s employees parked there, and defendant’s equipment was moved back and forth across it. As stated in Kooker, whether defendant, rightly or wrongly, exercised control over the area, is a question of fact.

There is nothing in any of the affidavits or the discovery deposition concerning other means of ingress and egress to the locker room. That furnishing safe means of ingress and egress is an integral part of the duty imposed upon an employer to provide an employee with a safe place to work, is so firmly established under the Federal Employers’ Liability Act, as to require no citation of authorities. Whether defendant, assuming it had knowledge of its employees’ use of the parking lot, was negligent in not providing adequate lighting,- would also present an issue of fact, not entirely decided by the defendant’s lack of control of the area where the injury occurred.

On the record here presented, and under the authorities herein cited, the court erred in holding that there was no genuine issue as to any material fact and the judgment must be, and is, therefore, reversed, and the cause remanded to the Circuit Court of Madison County with directions to deny the motion for summary judgment and for such further proceedings as are consistent with the views herein expressed.

Judgment reversed, and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.