text:
    Continental Illinois National Bank and Trust Company, etc., Plaintiff-Appellee, v. Mary Isabelle Llewellyn, et al., Defendants-Appellees, and Richard Kadish, et al., Fidelity-Philadelphia Trust Co., as Trustee, etc., et al., Defendants-Appellants.
    Gen. No. 50,497.
    First District, Second Division.
    July 28, 1967.

      Sidley, Austin, Burgess & Smith, of Chicago (Henry A. Preston, of counsel), for appellants, Richard Kadish, et al.
    Thomas H. Fisher, of Chicago (Henry A. Preston, of counsel), for appellants, Fidelity-Philadelphia Trust Company and Leonard P. Levy, et al.
    Wilson & Mcllvaine, of Chicago (William B. Mcllvaine and Clarence E. Fox, of counsel), for appellees, Barbara Warner Fentress and Silas Llewellyn Warner.
    William B. Mcllvaine, of Chicago, guardian ad litem for minor descendants of appellees, Barbara Warner Fentress and Silas Llewellyn Warner.
    McDermott, Will and Emery, of Chicago (Hamilton Smith and Frank J. Uvena, of counsel), for appellee, Elizabeth Llewellyn Warner.

      John S. Miller, of Chicago (Henry H. Elliott, of Washington, D. C., of counsel), for appellee, Irene Eleanor Llewellyn.
    Eckhart, McSwain, Hassell & Husum, of Chicago (William A. McSwain and M. A. Palumbo, of counsel), for appellee, Mary Isabelle Llewellyn.
    No appearance made in behalf of appellee, Continental Illinois National Bank and Trust Company.
    Harry J. Myerson, of Chicago, guardian ad litem for appellee, Charles Callison.
   On Rehearing

MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a decree denying attorneys’ fees to defendants-appellants, (hereinafter referred to as the assignees), in an action brought to construe a will and to determine the validity of certain assignments executed by one Mary Isabelle Llewellyn, a beneficiary under the will of Silas J. Llewellyn.

Issues pertaining to the construction of the will and the validity of the assignments were disposed of in Continental Illinois Nat. Bank v. Llewellyn, 67 Ill App2d 171, 214 NE2d 471 (1966). The attorneys’ fees, for services rendered in determining the above issues, are the subject matter of this appeal.

Silas J. Llewellyn died in 1925. He was survived by a wife, Mary E. Llewellyn, who died in 1933, and by three children:

(1) Paul P. Llewellyn
(2) Gertrude Llewellyn Stone
(3) Elizabeth Llewellyn Warner

(1) Paul P. Llewellyn died in 1956 and was survived by his only child, Mary Isabelle Llewellyn. Mary Isabelle was the offspring of Paul’s first marriage to Mary Catherine Elphicke, from whom he was divorced in 1924. Paul entered into three other marriages but no children were born to him of any of these three subsequent marriages. Mary Isabelle Llewellyn married Emil Frank in 1936 and was divorced from him the following year. She married Boss H. Callison in 1937 and was divorced from him in 1942. A child, Charles Callison, was born to Mary Isabelle in 1951. The child was placed for adoption and was legally adopted under the laws of the State of Maryland. A guardian ad litem was appointed to represent any interest which Charles Callison might have in the estate of Silas J. Llewellyn.

(2) Gertrude Llewellyn Stone died in 1956 and was survived by her husband. No children were born to Gertrude Stone during her lifetime.

(3) Elizabeth Llewellyn Warner was alive at the time of these hearings and had two children, Barbara Warner Fentress and Silas Warner. Both children are married and have children.

During the years 1941 through 1950, Mary Isabelle Llewellyn executed 14 assignments, to the assignees herein, involving her remainder interests in the Paul P. Llewellyn and in the Gertrude Llewellyn Stone portions of the trust estate.

In March 1956, upon the death of Paul P. Llewellyn, a will construction suit was filed by the trustee of the Silas J. Llewellyn trust, seeking instructions as to how a substantial portion of the estate was to be distributed. Answers were filed by the various parties who claimed an interest in the estate, including the surviving life tenant, her descendants, the representatives of the deceased life tenants, defendant-appellee Mary Isabelle Llewellyn, (the daughter of a deceased life tenant) and her assignees. The pleadings raised numerous questions of construction. These construction issues were:

(a) Whether accrued, but undistributed income, should be distributed to the remainderman or to the estate of a deceased life tenant. Irene Eleanor Llewellyn, the widow and executrix of Paul Llewellyn, a deceased life tenant, and the estate of Gertrude Stone contended that such income was distributable to them.
(b) Whether the trustee had power to make distribution of the trust only in cash, or in cash or in kind. Certain of the assignees contended that the trustee had power to distribute in kind.
(c) Whether the life estates were determinable fees followed by invalid executory devises, with the result that one-third of the estate indef easibly vested in each of the life tenants and, upon their deaths, passed to their personal representatives. This issue was first raised in the Answer of Irene Eleanor Llewellyn, the widow of Paul Llewellyn, and in the Answer of the estate of Gertrude Stone. This was contested by the surviving life tenant, Elizabeth Warner, and by her descendants, as well as by Mary Isabelle Llewellyn and her assignees. (This was a relatively major issue of construction.)
(d) Whether, under a correct construction of the will, the entire Gertrude Stone share (as against one-half of it) should be held for the benefit of Elizabeth Warner, her children and the guardian ad litem for her descendants. The Warner contentions were opposed by Mary Isabelle Llewellyn, by the assignees of the Gertrude Stone share, (assigned by Mary Isabelle Llewellyn), and by the estate of Gertrude Stone. (This was a major issue of construction.)
(e) Whether the Llewellyn will contained a spendthrift trust provision, express or implied, which would restrict or prevent assignability of the remainders. This issue was raised indirectly by the complaint. In her Answer, Mary Isabelle Llewellyn contended that there was such a spendthrift trust provision. This contention was opposed by her assignees. (This was a relatively major issue of construction.)

On September 18, 1957, the Chancellor entered an interlocutory order which resolved the various construction issues involved as follows:

(a) The order found that accrued but undistributed income from the shares of the deceased life tenants was payable to the respective remainder-men of the corpus shares.
(b) The order made no reference to the power of the trustee to distribute in cash or in kind.
(c) The order rejected the contentions of the estates of the deceased life tenants that the life estates were determinable fees which vested in the life tenants and passed to their estates.
(d) The order rejected the contentions of the Warner family and held that Mary Isabelle Llewellyn was entitled to distribution of one-half of the Gertrude Stone share.
(e) The order provided that the will did not contain a spendthrift trust provision, express or implied, thus rejecting the contentions of Mary Isabelle Llewellyn and sustaining the contentions of her assignees.

The assignees urged that the order should be made final and appealable by inclusion therein of an appropriate certification by the trial judge. The Chancellor rejected this contention. Shortly after the entry of the interlocutory order, the case was referred to a Master for a determination of the various issues concerning the assignments executed by Mary Isabelle Llewellyn.

On February 26, 1963, the Master made his report, in which he found, that because the assignments were made for a grossly inadequate consideration and because Mary Isabelle Llewellyn was not in a position of equality with the assignees, substantial justice would be done by permitting Mary Isabelle Llewellyn to rescind the assignments and treat them as loans, to be repaid with interest. On December 23, 1963, a decree was entered providing for the approval of the Master’s report. On appeal, we affirmed the construction issues as determined by the Chancellor, but reversed the Chancellor’s determination as to the assignments, holding that they were valid and enforceable. Continental Illinois Nat. Bank v. Llewellyn, 67 Ill App2d 171, 214 NE2d 471 (1966).

Thereafter, on October 13, 1964, after hearing evidence, the Chancellor rendered his opinion on the matter of fees, the subject of this appeal, as follows:

(a) On the petition of the attorneys for the estate of Gertrude Stone: allowed $1,015 as prayed for.
(b) On the petition of the attorneys for Irene Eleanor Llewellyn: allowed $9,000 for fees and $286.32 for disbursements, substantially as prayed for.
(c) On the petition and supplemental petition of the attorneys for Elizabeth Warner: allowed $24,-000 for fees and $746.00 for disbursements, substantially as prayed for.
(d) On the petition and supplemental petitions of the attorneys for the Warner children and the guardian ad litem for the Warner descendants: allowed $16,500 for fees to be divided % to the attorneys and % to the guardian ad litem, and $3,667.-63 for disbursements, substantially as prayed for.
(e) On the petition and supplemental petition of Harry J. Myerson, guardian ad litem: allowed $12,-000 for fees and $539.07 for disbursements, which, with respect to the fees, was a substantial reduction from those requested. This was on the ground that the guardian would, on his own admission, take nothing except in the event of the death of Mary Isabelle Llewellyn and hence his services were duplicative.
(f) The petitions and supplemental petitions of defendants-appellants Richard Kadish, et al., and Fidelity-Philadelphia Trust Co., et al., were denied, on apparent grounds that the services were duplicative of the services rendered by counsel for Mary Isabelle Llewellyn.
(g) The court ordered the fees and expenses hereinabove set out to be paid out of the Llewellyn trust estate as a whole.

Subsequently, the court entered a decree on November 17, 1964, from which this appeal is taken. That decree formalized the above opinion of October 13, 1964, which the court had rendered, with the addition to the findings that the fee allowances which were made, were, in each case, “fair, customary and reasonable compensation.” The assignees have appealed from all portions of that decree, except the portion which allocates the fee allowances against the entire trust estate and the portion relating to expenses allowed under Supreme Court Rule 19-12, concerning expenses in discovery proceedings.

It is assignees’ theory of the case that:

1. The Chancellor erred in allowing attorneys’ fees and expenses to certain of the parties to a will construction suit, while at the same time disallowing fees to these assignees, even though the interest asserted by these assignees in the disputed portion of the estate was as great, or greater, than that of the parties to whom fees were allowed.
2. The Chancellor erred in allowing attorneys’ fees and expenses to certain of the parties to a will construction suit whose contentions as to the construction of the will were rejected by him, while at the same time the Chancellor disallowed fees and expenses to these assignees, whose contentions as to the construction of the will he sustained.
3. The Chancellor erred in allowing attorneys’ fees and expenses to certain of the parties in a will construction suit for services that did not relate to the construction issues raised in the case, while at the same time the Chancellor disallowed fees and expenses to these assignees for substantially the same services.
4. The Chancellor erred in refusing to allow to these assignees, who are assignees of a remainder-man in a substantial trust estate, reasonable attorneys’ fees and expenses for the services of their attorneys related to sustaining the assignments in numerous hearings before the Master in Chancery and to issues of construction of the will involved in such hearings, as restitution and damages required to do “substantial equity” to these assignees in the event the remainderman should be allowed to rescind the assignments.

It is defendants-appellees’ theory of the case that:

1. The court properly disallowed the petitions of the assignees, the defendants-appellants Kadish, et al., for services of their attorneys to enforce private claims against the interest of Mary Isabelle Llewellyn and not for the benefit of the estate.
2. The petitions of the assignees, the defendants-appellants Levy, et al., for services of their attorneys to enforce private claims against the interest of Mary Isabelle Llewellyn are not part of the record on review, but, if they are, the court properly disallowed such petitions.

Essentially, the issues to be resolved are:

1. Whether the assignees, defendants-appellants Levy, et al., are properly before this court.
2. Whether the assignees of a beneficial interest can collect attorneys’ fees for services rendered in will construction litigation.

This is a case of first impression as to point 2.

At the outset we hold that the separate appeals of the assignees, defendants Fidelity-Philadelphia Trust Company, Leonard P. Levy, et al., are properly before the court. It is argued in Mary Isabelle Llewellyn’s brief that the two separate appeals of Fidelity-Philadelphia Trust Company, et al., (referred to as the “appeal of Leonard P. Levy, et al.”) are not before the court. This was due to the inadvertent failure of the Clerk of the Circuit Court to include said Notices of Appeal and the Praecipe for Record in the Record on Appeal filed herein. This defect has now been cured by motion allowed by this court and said Notices of Appeal and Praecipe are now a part of the record in this court and are abstracted in the Additional Abstract of Record filed herein, and are now properly before this court.

We also disagree with the assignees’ second contention. In Hinckley v. Beardsley, 28 Ill App2d 379, 171 NE2d 401 (1961), the court said at page 384:

The rule seems to be well settled that where a testator has expressed his intention in his Will so ambiguously that it becomes necessary for the executor, trustee or a beneficiary to institute a suit in chancery for construction of the Will, that the reasonable attorney fees for complainant and all necessary parties to the true construction of the Will should be allowed regardless of who prevails in the case, because by bringing the suit he has benefited the estate. Ingraham v. Ingraham, (169 Ill 432 (1897)); Dailey v. Dailey, (224 Ill App 17 (1922)).

Defendants-appellees contend that assignees are not necessary parties in that they do not take under the will. The assignees contend that they are necessary parties in that they do take under the mil, because they stand in the shoes of the assignor. In support of their position, the assignees point out that a successor in interest to a beneficiary under a will, such as an executor or trustee, stands in the shoes of his predecessor as a necessary party in a suit to construe a will and thus becomes entitled to an allowance for fees for the services of attorneys required in connection with the construction questions, in the same way in which his predecessor in interest would have been entitled. The assignees reason that an assignee of a beneficiary should be treated in the same manner as an executor or trustee of the beneficiary. We disagree. Any services rendered by the assignees to protect the interest of the beneficiary are duplicative. We do not have to consider a situation whereby a beneficiary assigns the entire beneficial interest, inasmuch as the beneficiary in the case at bar retained or subsequently reacquired a portion of her beneficial interest.

We feel, however, that the services rendered by the assignees in respect to the spendthrift issue were not duplicative and that said assignees should be compensated therefor. Mary Isabelle Llewellyn contended that there was a spendthrift trust provision in the will. This contention was opposed by the assignees. Thus, the position of Mary Isabelle Llewellyn was adverse to that of the assignees in that they had to participate in that part of the will construction proceedings and they should be compensated for their participation in respect to this issue. As to this issue, the cause will be remanded with directions to hold hearings to ascertain the fees to be allowed.

The argument of the assignees, that their construction contentions as to issues other than the spendthrift issue, were adopted by the Chancellor, is not a compelling reason to entitle them to fees.

For the above reasons the decree is affirmed in part and reversed in part and the cause remanded for further proceedings to determine the attorneys’ fees of the assignees on the spendthrift issue.

Decree affirmed in part and reversed in part and cause remanded with directions.

BURKE and BRYANT, JJ., concur.

       A later order of 12/23/63 provided that the trustee, in his discretion had the power to distribute in cash or in kind.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ENGLISH

license: Public Domain

text:
    The Exchange National Bank of Chicago, as Trustee Under Trust Dated February 23, 1960, Known as Trust No. 10835, Plaintiff-Appellee, v. Village of Skokie, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,725.
    First District, Fourth Division.
    July 31, 1967.

      Harvey Schwartz, of Skokie, for appellant.
    Philip R. Toomin, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from a judgment declaring invalid, and restraining enforcement of, the Village Zoning Ordinance insofar as it classified plaintiff’s property as B-l (Neighborhood Shopping) and B-2 (Commercial), and thereby prevented its use for a combined automatic car wash, gasoline service station, accessory store and automobile diagnostic center.

The subject property (approximately 75,000 square feet in total area) fronts 180 feet on the west side of Skokie Boulevard, a six-lane primary arterial thoroughfare, just south of Emerson Street. Proceeding northward from the subject site on the west side of Skokie Boulevard to Simpson Street are: the Old Orchard Theatre and parking area; a bowling alley complex known as Orchard Twin Bowl, including an indoor tennis court, cocktail lounge, restaurant and parking area; Estee Sleep Shop (a retail store); an area of vacant land; three more retail businesses (a refreshment stand, a fish store, and the Olson Bug Company); and, at the southwest corner of Simpson Street and Skokie Boulevard, the Vogue Tire and Accessory store. North of Simpson Street on the west side of Skokie Boulevard and extending to Old Orchard Boad, is the large Old Orchard Shopping Center.

South of the subject site, along the west side of Skokie Boulevard, are the Homer Bros. Furniture store, Dominic’s supermarket, Polk Bros, discount store, and, at the corner of Gross Point Boad and Skokie Boulevard, Mr. Bicky’s Bestaurant.

Northward, along the east side of Skokie Boulevard from the intersection with Gross Point Boad, are a Shell gasoline service station (which also manually washes and services cars and does minor repair work), a B. F. Goodrich Auto Accessories store (which sells tires and parts, and has a series of service bays where mufflers, brakes and other auto parts are installed), a Howard Johnson’s Motor Lodge and Bestaurant (directly opposite the subject site), a Turnstyle Discount Center (which includes a garden center and a Firestone automotive center), a Kiddieland amusement center and golf driving range, and on the southeast corner of Simpson Street and Skokie Boulevard, Henry’s Restaurant. North of Simpson, on the east side of Skokie Boulevard and extending to Old Orchard Road, is the Memorial Park Cemetery.

To a depth of 125 feet the frontage property along the west side of Skokie Boulevard running about two-thirds of the way from Gross Point Road to Simpson Street, is zoned B-l and the rest of the area in question is zoned B-2. The dividing line passes through the buildings of Homer Bros. Furniture store and Estee Sleep Shop, and across the subject property and that of the Old Orchard Theatre and the Orchard Twin Bowl, the actual structures of which are in the B-2 zone. Proceeding north of the Sleep Shop there is a small area fronting on Skokie Boulevard which is part of, and leads west to, a much larger area, the balance of which fronts on Simpson Street opposite the south side of the Old Orchard Shopping Center, and is zoned for multiple-family apartment buildings. Continuing north, the B-l, B-2 pattern is resumed with the dividing line crossing the fish store, refreshment stand, and through the Olson Rug Company building. The last plot on the west side of Skokie Boulevard, immediately south of Simpson Street, was changed by defendant to B-3 (a few weeks after denial of plaintiff’s application) to accommodate the Vogue Tire and Accessory store under construction at the time of this appeal.

The area along the east side of Skokie Boulevard from Gross Point Road to Foster Avenue, is zoned B-3. This includes the properties directly across the street from the subject premises. From Foster Avenue north to Simpson Street (on the east side of Skokie), the Kiddieland and golf driving range is zoned R-l, but represents a nonconforming use, and the Henry’s Drive-in Restaurant at the southeast corner of Skokie Boulevard is zoned B-l.

In 1965 plaintiff applied to defendant to rezone the property in question to B-4, or to B-3 with special use permission to install the car wash operation as described above. The application was referred to the Village Plan Commission which held a hearing and thereafter filed its report with the Village Board, unanimously recommending a change to the B-3 classification with a special use permission to install the requested improvement. In its report the Commission found that the proposed use would be consistent and compatible with the surrounding zoning and existing uses. Despite this recommendation, however, the Village Board, by a vote of 4 to 2, denied plaintiff’s application, thereby exhausting plaintiff’s administrative remedies, and this declaratory judgment action was filed soon thereafter.

Defendant contends that plaintiff has not met the burden of overcoming the presumption of validity which attaches to legislative determinations; that the proposed use would have an adverse economic impact upon competing businesses in the area, and that the trial court erred in striking testimony on this issue; that the present zoning classification imposes no burdens on plaintiff or its property that are not common to hundreds of other property owners and properties; and that the proposed use will aggravate already overburdened traffic facilities.

In its judgment order the trial court referred to the uses excluded under B-l and B-2 (e. g., service stations, automobile accessories stores and automobile laundries) and then found:

“5. Uses similar to said excluded uses are found along Skokie Boulevard in the area between Simpson Street and Gross Point Road, and other similar uses are permitted in B-2 zones. In addition, the principal uses found in said area are permitted uses within the B-4 Regional Shopping District in which said excluded uses are permitted.
“6. Said excluded uses are compatible both with the uses presently found in said area, and with the uses permitted therein.
“8. The action of defendant in refusing to rezone the said premises into the B-3 Commercial Zone with special use permission to install the said [proposed] uses, or to rezone said premises into the B-4 Regional Shopping District in which the requested uses are permitted, was discriminatory, arbitrary and capricious.
“9. The classification of uses contained in the B-l Neighborhood Shopping, and B-2 Commercial Districts are discriminatory, capricious and arbitrary, in denying plaintiff the right to use its premises for an automobile care and service center, including a car wash, while permitting other similar uses in said districts, and other uses with which the proposed uses are compatible.
“10. The Skokie Zoning Ordinance ... is invalid, as same relates to plaintiff’s property, in permitting certain uses to be installed in the immediate area of said property with which plaintiff’s proposed use is compatible, while excluding plaintiff’s similar [and] compatible use from said property.”

The court also found that the Zoning Ordinance as applied to plaintiff’s property bore no reasonable relation to the “public health, safety, morals, comfort or general welfare” of either the neighborhood or the village, and that plaintiff was entitled to use the property for the purposes proposed.

The essential question presented on this appeal is whether the trial court utilized the proper criteria and correctly applied them to the facts of the case. These criteria are familiar and need not be listed. People ex rel. Chicago Title & Trust Co. v. Village of Elmwood Park, 27Ill 2d 177,183-184,188 NE2d 684. It is our conclusion that they were properly applied to the facts in the instant case and that the judgment of the Circuit Court should be affirmed.

As noted, the decree finds that the uses which are excluded from the “B-l, B-2” categories are so similar to and compatible with the permitted uses as to constitute an arbitrary discrimination. Plaintiff correctly argues the theory of compatibility as recently discussed in Hartung v. Village of Skokie, 22Ill 2d 485, 494-495, 177 NE2d 328; Ward v. Village of Skokie, 26 Ill2d 415, 186 NE2d 529; and People ex rel. Chicago Title & Trust Co., supra. In Ward, application was made for a special use to permit construction of a motel on Skokie Boulevard one and one-half miles south of the property contested in the instant suit. The court noted that none of the adjacent uses were of a hotel or motel type, but said that they were nevertheless of similar, compatible, commercial nature, and in upholding the proposed use, refused, as do we, “to sustain a restriction so completely out of keeping with the character of adjacent uses and of those to which the property and its location are suitable.” (26 Ill2d at pp 418-419.)

In addition to the fact of compatibility between the proposed and adjacent uses, we find an arbitrary and unreasonable discrimination in the Village’s denial of plaintiff’s application in the light of its having granted a “B-3” classification to the Vogue Tire and Accessory Store located -very close to the subject property and on the same side of the street. The Vogue operation, as well as the accessory and service station uses on the east side of Skokie Boulevard, employ service bays for repair and installation work and we think a distinction between those uses and that proposed by plaintiff is, at best, insubstantial. Father Basil’s Lodge v. City of Chicago, 393 Ill 246, 65 NE2d 805; Frost v. Village of Glen Ellyn, 30 Ill2d 241, 195 NE2d 616; Marquette Nat. Bank v. Village of Oak Lawn, 57 Ill App2d 31, 206 NE2d 531.

To defendant’s argument that plaintiff has shown no burden which does not likewise fall upon adjacent and numerous other property owners, and that plaintiff has not shown an unreasonable or discriminatory economic burden, we apply the principle of People ex rel. R. Larsen & Co., Inc. v. City of Chicago, 24 Ill2d 15, 19, 179 NE2d 676. It is not necessary to a showing that a zoning ordinance is arbitrary, for the evidence to establish that the subject property is totally unsuitable for the permitted uses, but rather, the evidence need only show, as it does here, that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare. See also LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 48, 145 NE2d 65; Weitling v. County of Du Page, 26 Ill2d 196, 199, 186 NE2d 291; and Atkins v. County of Cook, 18 Ill2d 287, 293, 297, 163 NE2d 826.

Defendant also argues that it properly denied plaintiff’s application because the proposed use would overburden the already heavy traffic pattern in the area. We shall consider this point even though we are not required to do so, since it was not raised in the pleadings. A defense witness testified that any use of the subject property would have an impact on traffic, but that an auto laundry would have a more adverse effect than a use permitted within a “B-l” or “B-2” classification. He had made no special study, however, and did not testify to any comparison between the relative impact of these different uses.

The record discloses that the only existing car wash in the Village of Skokie is located on the same street about a mile and a half to the south. That facility, however, has little or no space for the parking or storage of cars off the street while they are waiting to be washed, whereas plaintiff’s proposed operation could accommodate 200 cars off the street. This would be made possible by utilizing the adjacent Old Orchard Theatre parking lot during the daytime hours when the auto laundry would be operating and the theatre needs would be minimal. An additional factor was considered in Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill2d 419, 425-426, 129 NE2d 1. There the court found insignificant a minimal increase in traffic produced by a requested use where a large volume of traffic already existed and the zoning for the purpose of reducing traffic bore no reasonable relation to the public safety. The traffic on Skokie Boulevard was shown to be 16,000 cars per day, whereas plaintiff’s proposed operation would involve 200 to 300 to possibly 500 cars per day. It should be noted, however, that there is no evidence that the auto laundry would introduce into the area any substantial volume of traffic not presently there as through traffic or as a result of existing patronage of the other businesses in the area. We find defendant’s argument on the question of traffic congestion to be without merit.

We have also considered defendant’s argument that the trial court erroneously caused to be stricken testimony that an auto laundry would have an adverse economic effect on other businesses in the area (“At least four solid businessmen in that area will go under”), and would cause severe competitive disadvantages to the typical gasoline stations which do not afford such a service. Defendant seeks to justify denial of the application here on the principle that municipal police power may not properly be used discriminatorily to grant economic and competitive advantages to one party over others. We do not agree that the finding in this case produces that result. In the authorities to which we have been cited concern was limited to violation of planned community development or lack of showing of community need, and they do not establish any municipal responsibility to utilize zoning power in such a way as to protect existing businesses. We have not found — nor did we expect to find — authority for this position, and we consider it wholly without merit. If there is no need for the proposed use, it is difficult to imagine any adverse competitive impact, under the Village’s theory, since it also argues that the other uses in the area are neither similar to, nor compatible with the proposed use. If an automated car wash competes more effectively than a hand wash, then the Village is seen to be arguing for the power to legislate economic protection for existing businesses against the normal competitive factors which are basic to our economic system. The Municipal Code (Ill Rev Stats 1965, c 24, § 11-13-1 et seq.) is the source of municipal legislative power in the field of zoning, and since such authority has not there been delegated directly or indirectly to a village, it does not have such power. 10 ILP, Cities, Villages, etc., § 1101; People ex rel. Skokie Town House Builders v. Morton Grove, 16 Ill2d 183, 189, 157 NE2d 33.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and MCCORMICK, JJ., concur.


text:
    Athena Cielen, Plaintiff-Appellant, v. Aetna Life Insurance Company, a Corporation, and The Travelers Insurance Company, a Corporation, Defendants-Appellees.
    Gen. No. 50,736.
    First District, Fourth Division.
    August 2, 1967.

      Joseph C. Owens and Carl Schulz, of Chicago, for appellant.
    Defrees, Fiske, Thomson & Simmons, of Chicago (Thomas J. Johnson, Jr., of counsel), for appellee Aetna Life Insurance Company.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (John M. O’Connor, Jr. and William D. Maddux, of counsel), for appellee Travelers Insurance Company.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Defendants issued group insurance policies on the life of plaintiff’s husband as an employee of the Commonwealth Edison Company. After his death plaintiff was paid the basic insurance coverage under the policies ($8,000), but defendants declined payment under the double indemnity provisions covering accidental death. Plaintiff’s suit therefor resulted in a jury verdict and judgment in favor of defendants, and plaintiff appeals.

The pertinent clauses of the policies provided, in substance, for the payment of additional benefits upon receipt of proof that death “resulted from accidental bodily injuries which were the direct and independent cause of death.” There was also a provision that no such payment would be made for a death “caused or contributed to by disease or infection.”

Plaintiff was the only witness on her own behalf and the facts which follow constitute a summary of her testimony. On July 9, 1963, the insured, plaintiff (his wife), their two-year-old daughter, and insured’s nineteen-year-old nephew went on an outing to Loon Lake, Illinois. They reached the lake at about 8:00 a. m., and spent the day fishing until late afternoon when insured decided to give his little girl a boat ride before leaving for home. All four members of the family got into the boat, which was equipped with an outboard motor, and rode around the lake. During the ride some teen-agers in another boat made two very close passes on insured’s boat, the second of which caused insured’s boat to capsize, and all occupants were thrown into the water. Insured had been sitting in the stern of the boat near the outboard motor, and just before plaintiff hit the water she saw him hanging onto the motor. Plaintiff sank into the water three times, and when she came up the third time she saw insured flopped on the bottom of the overturned boat and noticed that the motor was no longer attached. She saw that her husband “had a strange look, like he was looking into space.”

With the aid of some fisherman, insured and his family were pulled alongside other boats some 1,000 feet to a pier on the lake shore. Insured was helped up onto the pier by being pushed from below and pulled by his arms from above. Plaintiff was standing on the pier with insured in her arms, when “he fell flat on his face on the pier.” The nephew attempted artificial respiration until police and a rescue squad arrived with a pulmotor which they used for an additional 20 minutes, but all efforts to revive insured were unsuccessful. A doctor arriving on the scene shortly thereafter pronounced him dead. Although plaintiff was told by the police that she could not get her husband’s body for 48 hours, she did see the body at about 1:00 p. m. the next day at a funeral parlor in Chicago. Plaintiff never gave authorization for an autopsy and none was ever performed.

The insured had been hospitalized for treatment of a heart condition from May 13 to June 30, 1959 and from January 30 to March 13,1960. He was also under the care of Dr. Edward Malachowski for some period of time, and at the doctor’s direction had been hospitalized again from February 22 to February 28, 1963 for an acute respiratory infection. During that time an electrocardiogram was made.

Defendants presented motions for a directed verdict at the close of plaintiff’s case. They were denied, and defendants then proceeded with the introduction of evidence on their own behalf. This evidence was in no way helpful to the establishment of plaintiff’s case, and in view of the conclusion which we reach in this case, we shall not include a recitation of the defense testimony in this opinion.

A great deal of the argument presented on this appeal concerns the question of whether the insured’s preexisting heart condition excuses payment under the clause in the policies which exclude payment for death “caused or contributed to by disease or infection.” Although we are inclined to agree with plaintiff’s position, we do not decide this question. Instead, we affirm the judgment below on the ground that plaintiff failed to introduce any evidence to prove as required by the policies that the death of the insured “resulted from accidental bodily injuries which were the direct and independent cause of death.” Schroeder v. Police & Firemen’s Ins. Ass’n, 300 Ill App 375, 383-384, 21 NE2d 16. Defendants correctly argue that a verdict should have been directed on their motion at the close of plaintiff’s case. Pedrick v. Peoria & Eastern R Co., 37 Ill2d 494, 229 NE2d 504. As this court held in Wellner v. New York Life Ins. Co., 331 Ill App 360, 364, 73 NE2d 156:

Under the double indemnity clause, before the plaintiff can recover the burden is upon him to prove that insured’s death occurred through external, violent and accidental means. This is the rule clearly laid down in Fidelity & Casualty Co. v. Weise, 182 Ill 496; Smith v. Metropolitan Life Ins. Co., 317 Ill App 624, and Gray v. Metropolitan Life Ins. Co., 308 Ill App 1.

In Smith v. Metropolitan Life Ins. Co., 317 Ill App 624, 629-630, 47 NE2d 330, we reviewed a double indemnity clause and held:

... it is incumbent upon the plaintiff to allege that the insured died through accidental means; otherwise his complaint would not state a cause of action ; and having made that allegation, it is incumbent upon him to sustain it by a preponderance of the evidence. ... In the first instance plaintiff is required to make a prima facie case showing that the death was accidental.

Plaintiff’s evidence in the instant case failed utterly to prove any bodily injury sustained by her husband. Such an accidental bodily injury is not established by proof of exposure and exhaustion. Linnane v. Aetna Brewing Co., 91 Conn 158, 99 A 507, 509. Her evidence consisted merely of a recitation of the events of the day upon which her husband died. There was no evidence as to cause of death beyond her description of her husband immediately after the boat capsized as having “a strange look, like he was looking into space,” and her testimony that after they helped him onto the dock he collapsed and could not be revived. This is not sufficient, and a jury should not be permitted to speculate that under such circumstances there might have been a bodily injury of some kind and that death might have been caused thereby.

Of the many cases to which we have been cited by plaintiff, none involves a situation where the accident could not be traced directly to the death, and all involved accidents which resulted in bodily injury. Letz v. World Ins. Co., 336 Ill App 489, 84 NE2d 678 (bruises on elbow and shoulder with injury to chest, and medical evidence that these injuries caused a blood clot which resulted in death); Rebenstorf v. Metropolitan Life Ins. Co., 299 Ill App 71, 19 NE2d 420 (acerbation of gall bladder condition requiring surgery, which was followed by a fatal heart attack); Scanlan v. Metropolitan Life Ins. Co., 93 F 2d 942 (7th Cir, 1937) (bruised leg in area of varicose veins, with medical evidence that the bruise produced a blood clot which caused death); Preston v. Aetna Life Ins. Co., 174 F2d 10 (7th Cir, 1949) (stubbed toe with ulcer developing followed by amputation of leg); Sturm v. Employers’ Liability Assur. Corp., Ltd., 212 Ill App 354 (finding of insured dead under water in a bathtub held prima facie evidence of accidental drowning); Plano Foundry Co. v. Industrial Commission, 356 Ill 186, 190 NE 255 (a cut which developed a streptococcus infection with medical evidence that this caused death). We have not found any authority for the proposition that in the absence of such proof of injury, as is present in the cited cases, recovery may be had under the type of double indemnity policy with which this appeal is concerned.

Our decision as to the failure of plaintiff’s proof renders unnecessary discussion of alleged trial errors advanced on this appeal. Her claim for payment of interest and attorney’s fees also falls, since Ill Rev Stats 1963, c 74, § 2, and c 73, § 767, are based upon wrongful withholding, and are not available to an unsuccessful litigant. Howard Foundry Co. v. Hartford Fire Ins. Co., 222 F2d 767, 770 (7th Cir, 1955), cert den 350 US 885; First Nat. Bank of Highland Park v. Boston Ins. Co., 17 Ill App2d 159, 170, 149 NE2d 420.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       For example, Dr. Malachowski testified that he began treating the insured on May 23, 1960 with a diagnosis of coronary insufficiency; and that when the insured was in the hospital in 1963 for the respiratory infection, he reaffirmed the existence of the heart condition. In answer to a hypothetical question based upon the circumstances of the insured’s death as disclosed by the evidence, and upon the insured’s physical condition as testified to by him, Dr. Malachowski gave it as his opinion that the prior medical history could possibly have been related to the hypothetical person’s death; that a damaged heart could very readily give up under excessive stress and strain; and that the occurrence described and the pathological condition of the heart could, working together, operate to cause the death. On cross-examination he testified that under the hypothetical circumstances there could have been a rupture of the aorta, or the pericardium, without preexisting disease, or the hypothetical man could have drowned.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Lee Mason, Defendant-Appellant.
    Gen. No. 51,014.
    First District, Third Division.
    August 3, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John Ward, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The trial court found Willie Lee Mason guilty of rape and sentenced him to the penitentiary for a term of one to ten years. He contends that his guilt was not proved beyond a reasonable doubt.

The prosecutrix, who was temporarily separated from her husband, lived with her four small children on the first floor of an apartment building. There were three apartments on this floor; she occupied the rear one and the defendant, Mason, lived alone in the middle one. A window in Mason’s apartment was at a right angle to and about three feet from a window in the prosecutrix’ living room.

On Sunday, April 25, 1965, she awakened about 4:30 a. m. Her month-old daughter, who was sleeping with her, started to cry and she went to the washroom to get the baby a bottle. Because she was alone with her children, she had left the lights on during the night and, as she entered the living room which was lighted, she saw a man standing by the window holding a cap over his face with his left hand. With his right hand he took a knife from his pocket, opened it with his teeth, pointed it at her with a jabbing motion and directed her to go to the rear of the apartment. He followed her and turned off the lights in each room as he entered it. When she came to the bedroom she picked up her crying baby but he grabbed her hand and pulled her into the kitchen. Despite her pleas he pushed her down, took off an overcoat he was wearing, ordered her to remove her garments and had intercourse with her.

After he finished, he went to the living room but changed his mind and returned and, after warning her not to call the police and not to turn on the lights for 20 minutes, went out the back door. The prosecutrix waited a moment and then awoke her neighbors in the front apartment and told them that she had been raped. She asked the man who lived there to call the police and he got up, dressed and went out to do so. His wife accompanied the prosecutrix to her apartment. They went to the window in the living room which faced Mason’s apartment. Her screen had been pulled back and the window pried open. His window was up and the screen covering it had been torn away. When the police arrived she showed them the windows and she told them that she thought that the man who lived in the next room was the one who had broken into her home. Although she told the police that she did not think that he had returned to his room, she suggested that they knock on his door. However, they did not do so but took her to a hospital where a microscopic examination disclosed the presence of sperm.

The next time she saw the man was that Sunday night when he entered the building. She identified him to a friend and the police were again called. They arrested the defendant and brought him into her apartment where she again identified him.

Mason, who was 18 years of age, denied his guilt when arrested and denied it at his trial. At both times he said he had not left his room from about 11:30 Saturday night to 2:00 p. m. Sunday. He testified that he worked until 4:30 p. m. Saturday afternoon, April 24th, and after work had gone to a tavern with several of his friends. He said he became intoxicated and two of them brought him home about midnight; that he went to bed and stayed there until about 1:00 p. m. Sunday when he got up and went to visit a relative.

In support of his contention that he was not proved guilty beyond a reasonable doubt, the defendant argues that his identification was uncertain, that it was brought about in an improper way and that the testimony of the prosecutrix was unbelievable. He points out that his identification was by a single witness; that this witness did not see his face; that she did not describe his facial features, or his physical characteristics or identify his voice; that she only described his clothing and that it was not until he put on similar clothing that she said he was the man who attacked her. He points out that there was no lineup of suspects; that on Sunday night he was brought into her apartment alone; that before this confrontation she had told the police she would know him if they clothed him as her attacker had been dressed; that after he came in they put his overcoat on him and held a cap over his face, and it was then that she said: “Yes, that’s the man.” He further points out that although she testified that she told the policemen who came to her apartment in the morning of her suspicions, they made no effort to apprehend him or even to question him and that these policemen were not called as witnesses to corroborate her testimony.

These arguments, naturally, overlook the evidence which is unfavorable to the defendant. It is undisputed that a rape took place. The rapist came in through the window; the doors of the apartment were locked; the prosecutrix unlocked the rear door to let her assailant out and she opened the front door to notify her neighbors. There was no evidence that a ladder, a box or any other object was used to reach her window — the sill of which was variously estimated as being 6 to 9 feet above the ground. There was evidence that Mason’s window was used. The man who came through the two windows showed familiarity with the occupants of the apartment. When the prosecutrix unexpectedly entered the living room he covered his face until the lights were extinguished. He came for the purpose of rape and knew that the woman who lived there was without male protection. He knew that the family had a dog. Before he left by the rear door he inquired if the “big dog” was in the back. Although the prosecutrix did not see his features, she saw that he was a colored man, that he wore a dark brown coat, that his cap was black with a little bill and that the knife he brandished had a light-colored handle. She thought she knew the man. She told the police that although she was not certain, she believed him to be her next-door neighbor — whom she had seen before in the hallway. She said she would know for sure if she saw him again — and the next time she did see him she exclaimed, “That’s the man” and called the police. To make doubly sure, she asked the officers who arrested him to place his coat upon him and put his cap over his face. When this was done she again said, “Yes, that’s the man.”

There were additional circumstances which incriminated Mason: (1) immediately after the prosecutrix’ complaint of being raped, her neighbor to whom she complained left the building to telephone the police and he met Mason coming in the vestibule. Mason was wearing a dark overcoat and a black cap with a little bill. (2) Later that day the prosecutrix’ husband, who was among those visiting her, went to Mason’s door and inquired if Mason had heard the commotion in his apartment. Mason said, “I don’t know anything about your wife being raped.” The husband replied, “I didn’t say anything about she being raped, how you come to that conclusion?” (3) When the policemen went to Mason’s room to arrest him he denied possessing a black cap. (4) They found a black cap with a little bill tucked between the mattress and the springs of his bed. He said that that was where he kept his unused clothing and that he had forgotten about the cap. (5) A dark brown overcoat was found in his room. (6) A knife with a light-colored handle was also found there. The prosecutrix identified it as the one held by the rapist.

The circumstance under which an identification is made affects its weight but does not destroy the evidence of identification. It is not necessary that a suspect be placed in a lineup (People v. Capon, 23 Ill2d 254, 178 NE2d 296 (1961)), and the fact that a suspect is brought alone before the victim who identifies him does not destroy the identification. People v. Wilson, 1 Ill2d 178, 115 NE2d 250 (1953). It is not improper to have clothing worn by a person suspected of a crime placed on that person to furnish an additional identifying element. People v. Pecho, 362 Ill 568, 200 NE 860 (1936); People v. Dixon, 81 NE2d 330, 225 NE2d 445 (1967).

The testimony of the prosecutrix was positive and her credibility was not impugned. Although she saw Mason in the light only a short time and did not see his face, his general appearance was familiar to her; she suspected who he was, and when she saw him again she was certain that he was the man who raped her. Her early suspicion and later certainty were substantiated by the surrounding circumstances, all of which established Mason’s guilt beyond a reasonable doubt.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MORAN, P. J.

text:
    Tison & Hall Concrete Products Co., Inc., Plaintiff-Appellee, v. A. E. Asher, Inc., and Charles Barfield, Defendants, A. E. Asher, Inc., Defendant-Appellant.
    Gen. No. 67-2.
    Fifth District.
    August 4, 1967.
    William E. Aulgur, of Eldorado, and Richard Weinberger, of Chicago, for appellant.

      George B. Lee and Charles H. Thompson, of Harrisburg (Arlie 0. Boswell, Sr., of counsel), for appellee.
   MORAN, P. J.

This is an appeal by the A. E. Asher Co., hereinafter called Asher, from a judgment of the Circuit Court of Saline County, Illinois, in favor of the plaintiff in an action by a subcontractor’s supplier of materials to enforce a lien on public funds due a general contractor.

Asher, a Chicago based general contractor, entered into a contract with the Illinois Department of Public Works and Buildings to construct a prison in Johnson County. On May 23, 1963, Asher and Charles Barfield, a mason contractor in Massac County, entered into a subcontract for the masonry work. Pertinent parts of the subcontract provide in part:

f. (Rider) All materials shall be charged to General Contractor, all receiving tickets shall be signed signed (sic) by Subcontractor and General Contractor, the amounts of the materials shall be paid directly to the supplier and Subcontractor by General Contractor, and these amounts shall be deducted from the Subcontractors (sic) amount. (Emphasis supplied.)
6. Contract Price. For the satisfactory performance of Subcontractor’s obligations under this subcontract, Contractor agrees to pay Subcontractor the sum of (242,000) dollars. The said contract price is FIRM for the duration of the project and is not subject to escalation for sales tax or any reason whatsoever.

Barfield then entered into an agreement with the plaintiff, a supplier located in Saline County, under which the plaintiff furnished part of the material needed for the masonry work on the prison.

In all, the plaintiff furnished $29,712.77 of building material, issuing all of its bills, shipping tickets, and statements to Barfield. It did not bill Asher for any of the material furnished. Payments, made by checks of Asher, amounted to $11,167.15, leaving a balance of $18,545.62 due plaintiff.

After giving notice to the State of Illinois, the plaintiff filed a complaint, which was later amended, against both Barfield and Asher, seeking an accounting of the amount due the plaintiff and a decree that there be “a lien upon all money, bonds, and warrants due or to become due to the defendants or either of them which are now their possession of or under control of the Department of Public Works and Buildings,” under HI Rev Stats c 82, § 23. The complaint alleged that Asher had entered into a contract with the plaintiff by which

the plaintiff agreed to sell and deliver to the said defendant (Asher), building materials and concrete products, as the said A. E. Asher, Inc. might from time to time order through its subcontractor and agent, Charles H. Barfield, Sr., defendant herein, for the erection of the said Minimum Security Prison, at the usual and customary price for such material at the time and place the material was delivered, which contract was made in the City of Harrisburg in the County of Saline and State of Illinois;

that, in accordance with the terms of the contract, the plaintiff furnished to Asher, through Barfield, building materials and concrete products for the construction of the prison; and that certain sums remain unpaid. In an answer to an interrogatory by Asher, the plaintiff stated that an oral contract was entered into in July, 1964, at the plaintiff’s place of business.

After a non jury trial, the judge ordered that the plaintiff “have and recover from defendants, A. E. Asher, Inc., and Charles H. Barfield, Sr., the sum of ($18,545.62)” and decreed that the plaintiff shall have a lien for such an amount “Upon the money, bonds or warrants due from the State of Illinois ... to the contractor defendant, A. E. Asher, Inc.,” having found (1) that Asher and Barfield had entered into a contract which provided that Asher would pay for all materials directly to the supplier and (2) that Asher “promised to pay the plaintiff for said materials so furnished by the plaintiff in the construction of the facility.” Only the defendant Asher appeals from this order.

The defendant first contends that the trial court erroneously denied its motion to dismiss or transfer the case for lack of venue, which was supported by an affidavit signed by A. E. Asher that no part of the transaction out of which the cause of action supposedly arose took place in Saline County. However, the plaintiff’s verified complaint stated that a contract was made between it and Asher, “which contract was made in Harrisburg in the County of Saline and State of Illinois.” Since no evidence had yet been heard at the time the court ruled upon the motion and since the court had before it only the plaintiff’s verified complaint and the defendant’s verified motion, the court would have no way of knowing the truth of the allegations at that time and, therefore, did not err in overruling the defendant’s motion at that stage of the proceedings.

The defendant next contends that the court erred in granting a money judgment, arguing that no such relief was requested in the plaintiff’s complaint. The trial court ordered that the plaintiff “have and recover” from both defendants the sum due to it for material supplied. We construe this to constitute a money judgment, even though the plaintiff states in its brief that “plaintiff did not ask for a money judgment, nor did it get one.”

It is well established in Illinois that a judgment must conform to and be supported by the pleadings and proofs of the case. Sharkey v. Sisson, 310 Ill 98, 141 NE 427; Kohler v. Kohler, 326 Ill App 105, 61 NE2d 687; Seaburg v. Williams, 23 Ill App2d 25, 161 NE2d 576. In this case, there was no prayer for a money judgment, and the court erred in granting such a judgment.

The defendant next contends that the court erred in decreeing that the plaintiff shall have a lien for the full sum of $18,545.62, arguing that the amount of any lien should have been limited to the amount of the indebtedness of Asher to Barfield. Incidental to this contention, the defendant argues that the court erred in refusing to hear evidence concerning the status of the Asher-Barfield account.

Before our discussion of this argument, however, it is necessary to consider the trial court’s finding that Asher “promised to pay the plaintiff for said materials so furnished by the plaintiff in the construction of the facility.” For, if there were a separate promise by Asher to the plaintiff, as pleaded in plaintiff’s complaint, then the amount of the lien would be determined by that promise, since the materials would have been supplied to Asher. We believe that the court’s finding is contrary to the weight of the evidence. The plaintiff issued all of its bills, shipping tickets, and statements to Barfield, not to Asher. Payments were made by checks of Asher, consistent with paragraph 4 of the rider to the Asher-Barfield Contract. The plaintiff, however, issued lien waiyers for these payments to Barfield, not to Asher. Delmas Tison, owner and general manager of the plaintiff corporation, testified that he had made a contract with Barfield for material to be used in the construction project, which contract was admitted into evidence.

The only evidence which might tend to support the existence of a separate promise from Asher to the plaintiff was elicited in the testimony of Mr. Tison and Everett McConnell, the Office Manager of the plaintiff corporation, (1) that there were telephone conversations between representatives of the plaintiff with someone from Asher Co., thought to be a Mr. Katz, to the effect that Asher would pay for material used on the job and (2) that, whenever Asher became late in making payments to the plaintiff, a representative of the plaintiff would call to determine why the checks were not arriving and that, shortly thereafter, payment would arrive.

This testimony, however, is entirely consistent with paragraph 4 of the rider to the Asher-Barfield contract, providing that “the amounts of the materials shall be paid directly to the supplier and Subcontractor by General Contractor.” From a review of all the testimony, we believe that the finding of the trial court that Asher had promised to pay the plaintiff for materials used in the construction project is contrary to the manifest weight of the evidence.

This brings us to a consideration of the defendant’s contention that the amount of any lien should have been limited to the amount of the indebtedness of Asher to Barfield. Paragraph 4 of the rider to the Asher-Barfield contract provides that the amounts which Asher pays directly to a supplier “shall be deducted from the Subcontractor’s amount.” Paragraph G of the contract also provides that the contract price of $242,000 is “FIRM for the duration of the project and is not subject to escalation for sales tax or any reason whatsoever.” These provisions indicate that Asher had contracted to pay Barfield the total amount of $242,000 for Barfield’s completion of the masonry work and that any amount which Asher paid to a supplier to Barfield, such as the plaintiff, would be deducted from the amount due Barfield. This arrangement implies that Asher would only be required to pay the bills of a supplier if the total amount incurred on behalf of the subcontractor was less than the contract price.

It was error, therefore, for the trial court to refuse to allow testimony concerning the Asher-Barfield account. This evidence is clearly relevant in determining the extent of a lien, if any, which should be decreed.

This type of limitation on the extent of a supplier’s lien was discussed in a very well-reasoned opinion in Koenig v. McCarthy Const. Co., Inc., 344 Ill App 93, 100 NE2d 338, wherein the court concluded at 104 that:

It is our judgment, therefore, that inasmuch as sec 23 of the Lien Act has been construed by our Supreme Court in the Gunther case (369 Ill 362) to limit the liens of those furnishing materials to a contractor for a public improvement, to the amount earned and due to the contractor prior to his default, and since this section expressly provides that the term “contractor” includes any “subcontractor” it is both reasonable and proper to conclude that persons, in the position of plaintiffs, furnishing materials to a subcontractor, have no greater rights than persons furnishing materials to a contractor, and both are limited, in the assertion of liens, to the amount due their immediate contractors at the time notice of their liens is given. Any other construction would not only impose an absolute liability upon the original contractor not contemplated by the statute, but be contrary to established principles of law with reference to liens accruing under private contracts.

The court also emphasized, at 101, that “the determination of the existence and extent of a lien depends not only upon the precise wording of the particular Lien Act . . . , but also upon the specific terms of a contract before the court.”

Thus, since both the Asher-Barfield contract and section 23 of the Lien Act imply a limitation on the extent of any lien which may be decreed, that part of the trial court’s order which provides that the plaintiff shall have a lien in the full amount of $18,545.62 must be reversed and remanded, with the direction that evidence should be received to determine the status of the Asher-Barfield account.

For the foregoing reasons, that part of the judgment appealed from which grants a money judgment is reversed, and that part of the judgment which decrees a lien is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed in part and reversed and remanded in part.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    Patricia Ann Harris (Nee Spencer) Plaintiff-Appellant, v. Billie F. Spencer, Defendant. Patricia Ann Harris (Nee Spencer) Plaintiff-Appellant, v. Billie F. Spencer, Defendant.
    Gen. Nos. 66-138, 67-15. (Consolidated.)
    Fifth District.
    August 4, 1967.

      Wiseman, Hallett, Mosele, Shaikewitz and Struif, of Alton, for appellant.
    Meyer & Meyer, of Belleville, for appellee.
   MORAN, P. J.

These cases have been consolidated and involve appeals from judgments of the Circuit Court of Madison County denying the plaintiff-appellant’s motion for a rehearing on an order that she deliver custody of her two minor children, born of her marriage with defendant-appellee, to him and finding her in contempt for refusing to comply with the order.

On March 14, 1962, the plaintiff was granted a divorce from the appellee and was given custody of their two minor children. Subsequently, on February 24, 1966, the appellee filed a complaint for Modification of the Decree, wherein he alleged that the appellant has become a person wholly unfit to have the custody of the children and prayed that the court modify the initial decree so that he be given custody of the children. On March 25, 1966, the trial judge entered a memorandum to the effect that: “The Court advised counsel that he would want an investigation as to the parties and the children. Counsel stipulated that any evidence received from the Probation Officer could be considered by the court as evidence.” On May 27, 1966, the trial judge entered another memorandum to the effect that: “Modified decree of divorce to be agreed to by attorneys to be submitted to the Court. Cause continued for submission of the modified decree.” Then, on June 20, 1966, the trial judge entered an order awarding custody of the children to the appellee, subject to specified rights in the appellant. The order recites in part that:

(T)he court having referred this matter to the Probation Office in the County of Madison and State of Illinois for investigation and report, and said Probation Office having made a report to this court, and there being no further evidence offered by either of the parties hereto . . . the decree of divorce . . . should be changed and modified ....

The order was signed by the trial judge and “approved as to form” by attorneys for both parties.

Appellant subsequently obtained new counsel and, on July 19, 1966, filed a motion for rehearing which, as amended on August 22, 1966, alleged that (1) no evidence was heard by the court on the question whether the appellant was a fit and proper person to have custody of the children; (2) the only evidence produced was based upon the Probation Officer’s report, which contained erroneous hearsay evidence; (3) the appellant was prepared to produce witnesses to the effect that she was a good mother for the children; (4) the Probation Officer now believes and has stated that the appellant is a fit and proper person; and (5) the appellant had been inadequately represented at the hearing.

After the filing of the Motion for Rehearing, but before the court had ruled on the motion, the appellee filed a petition on August 4, 1966, for an order to show cause why the appellant should not be held in contempt for refusing to comply with the order modifying the divorce decree to the effect that the appellee have custody of the children. On August 19, 1966, this matter was heard by another judge who entered an order that:

Respondent (appellant) is found to be in contempt for failure to obey the order as confessed regarding the facts. The Court finds it would serve no useful purpose at this time to punish the respondent for contempt. Respondent is allowed to purge herself of contempt by delivering up the children as ordered by (the court).

Then on August 22, 1966, still prior to the court’s ruling on the appellant’s Motion for Rehearing, after the appellant reiterated her refusal to comply with the modified decree, the other judge, noting that she had previously been adjudged in contempt, fined her the sum of $500. The appellant appeals from this final order.

Subsequently, on November 4, 1966, the trial judge entered an order denying appellant’s motion for a rehearing. In part, the court stated that:

On June 20,1966, this court entered an order by consent of the attorney for the plaintiff and the attorney for the Defendant modifying the Decree of Divorce as to the custody of the minor children of said parties .... (T)he modified Decree was submitted to the Court approved by counsel for both parties, which the Court signed and entered on June 20,1966, as a Consent Decree modifying the original Decree.
That by reason of the fact that there was no evidence offered to show any change in conditions since said modified Decree was filed, this Court denies the Motion for Rehearing, which the court construed as a Motion to Vacate which was filed on July 19, 1966. (Emphasis added.)

The Appellant also appeals from this final order.

These cases raise two questions for our consideration: (1) whether the trial court erred in denying appellant’s Motion for Rehearing on the basis that the trial court which had granted the modified decree of divorce had based its decision on a Probation Officer’s report; and (2) whether the modified decree entered by the trial court constituted a consent decree.

In Scott v. Cohn, 134 Ill App 195, involving the custody of a minor child after a divorce, counsel for both parties consented to the chancellor’s investigation for the purpose of deciding whether the custody of a minor child should be transferred from the mother to the father. It appears that the judge determined the issues, not only by the evidence heard in open court, but by the investigation which he caused to be made. The court reversed the trial court’s decree, holding, at202, that:

We can only determine the issues by the evidence produced in open court. If the chancellor might decide partly on an investigation made out of court, such as it is claimed was made in this cause, then he might decide wholly on such investigation, the only difference between the two cases being not in kind, but in degree. No agreement between counsel, such as is claimed to have been made, can bind the minor, whose interest is the main question to be considered.

Our Supreme Court affirmed Per Curiam, Cohn v. Scott, 231 Ill 556, 83 NE 191, reiterating that, “while a very large discretion must be permitted the chancellor hearing these cases, yet it must be a judicial discretion and subject to review on the evidence heard in open court.”

In In re Rosmis, 26 Ill App2d 226, at 231, 167 NE2d 826, the court concluded by noting that:

(T)he declared policy of the law in this state is that, exclusive of certain matters of which the court may properly take judicial notice, the deliberations of the trial judge must be limited to the record made before him in open court. In addition, the probation officer or other person rendering a report to the court should be subjected to cross-examination.

See also, Callan v. Callan, 5 Ill App2d 480,125 NE2d 854; Ledbetter v. Ledbetter, 25 Ill App2d 478, 167 NE2d 247. Finally, the court in Williams v. Williams, 8 Ill App2d 1, at 7, 130 NE2d 291 after reviewing numerous decisions, concluded that “the use of outside investigations and confidential reports contravenes the American ideal of due process of law. . . .”

The Appellee argues, however, that both counsel had “stipulated that any evidence received from the Probation Officer could be considered by the Court as evidence.” This argument was raised and answered both in the Scott case and in the recent case of Walter v. Walter, 61 Ill App2d 476, 209 NE2d 691, wherein the court stated that:

There is no doubt that counsel for the defendant not only failed to object to the procedure followed by the court, but actually consented to it, and, if the real party in interest were the defendant, the point would surely be deemed to have been waived. However, in cases of this kind, the real interest involved is that of the minor children.

The court then stated its reliance upon Scott v. Cohn, 134 HI App 195, to the effect that no agreement between counsel can bind the minor.

It seems clear from the authorities cited that the trial judge who granted the modified decree erred in basing his decree upon the Probation Officer’s report and that the appellant’s motion for a rehearing should have been granted.

Concerning the second issue, the order of the trial court denying the appellant’s Motion for a Rehearing refers to the initial modification order as a consent decree, agreed by counsel for both parties as to the terms of the decree. In support of this finding, the appellee refers to the memorandum to the effect that “modified decree of divorce to be agreed to by attorneys to be submitted to the Court” and to the signature of both attorneys on the modified decree under the words “Approved as to Form.” We do not believe that the decree in this case constituted a consent decree. In Sampson v. Village of Stickney, 24 Ill2d 134, at 139-140,180 NE2d 457, our Supreme Court stated:

After a chancellor has announced his decision, he generally directs the party, in whose favor he has decided the cause, to prepare a draft decree. After a draft decree is prepared, it is generally submitted to the other party to determine whether it conforms with the announced decision of the chancellor. If the other party is satisfied that the draft decree does conform to the announced decision, he indicates his approval by marking the decree “approved” or “approved as to form” and signs it. The decree is then presented to the chancellor for his signature. “Approval by the losing party cannot ipso facto be construed as acquiescence in the substance of the decree.”

Commenting on this decision, the court in James C. Wilborn & Sons, Inc. v. Heniff, 56 Ill App2d 217, 205 NE2d 771, after noting that there had been earlier support for the theory that a notation of “O. K.” and the initials of each party’s attorney made the order a consent order and hence not subject to being set aside or amended on motion, stated that “all doubt about such approval being merely as to form, unless otherwise shown, has been set at rest by the decision.”

It does not appear from the record that the appellant has acquiesced in the modified decree of divorce awarding custody of the children to the appellee. In fact, the appellee has emphasized in his brief that the appellant has refused to this day to abide by the modified decree. Therefore, since the decree was not a consent decree, it is subject to review and may be set aside or amended.

In view of this finding, the appellant’s motion for a rehearing was proper and had the effect of staying execution of the modified decree until the trial court ruled upon the motion. Ill Rev Stats c 110, § 68.3 (b); Light v. Light, 12 Ill2d 502, at 513, 147 NE2d 34. Therefore, the appellant should not have been found in contempt and fined for her refusal to comply with the provisions of the modified decree at that stage of the proceedings.

For the foregoing reasons, the judgment in Cause No. 66-138 is reversed and the judgment in Cause No. 67-15 is reversed and remanded to the Circuit Court of Madison County for the purposes of taking testimony in open court and for the entry of an order based thereon.

Judgment in Cause No. 66-138 reversed and judgment in Cause No. 67-15 reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: EBERSPACHER, J.

text:
    Howard E. Waters, Plaintiff-Appellant, v. Chicago & Eastern Illinois Railroad Company, a Railroad Corporation, Defendant-Appellee.
    Gen. No. 66-90.
    Fifth District.
    August 7, 1967.

      Kassly, Weihl, Carr & Bone, of East St. Louis (Rex Carr, of counsel), for appellant.
    Walker & Williams, of East St. Louis (Edward G. Maag, of counsel), for appellee.
   EBERSPACHER, J.

Plaintiff, Howard Waters, filed his complaint in two counts, under the Federal Employers’ Liability Act against the defendant, Chicago & Eastern Illinois Railroad Company, for damages on account of alleged injuries sustained on July 25 and August 22, 1964, when he was employed by Simpson Express & Trucking Company, (hereinafter referred to as Simpson), as a ramp man at the “piggy-back” loading ramp of the defendant railroad in Madison County, Illinois. Contending that his duties as an employee of the railroad were in furtherance of interstate commerce, plaintiff charged negligence of the railroad resulting in his injuries.

The defendant railroad denied that plaintiff was an employee and denied it was guilty of negligence, denied jurisdiction of the court under F. E. L. A. and denied the nature and extent of injuries, and averred that the negligence of the plaintiff caused or contributed to his injuries.

At the close of all the evidence defendant moved for a directed verdict, contended that the evidence was insufficient to show that plaintiff was an employee of defendant, and insufficient to establish liability under F.E. L.A., on which motion the court reserved its ruling. The cause was submitted to the jury and it returned a verdict against the plaintiff on both counts, on which judgment was entered. The court denied plaintiff’s post-trial motion for a new trial, and also denied defendant’s post-trial motion, which renewed its motion for a directed verdict made at the close of all the evidence.

Plaintiff here contends that the verdict of the jury was contrary to the law, which contrary verdict was caused by the refusal of the court to instruct the jury relative to section 5 of the Act. By its cross appeal, defendant contends the court erred in not directing a verdict for defendant at the close of all the evidence.

In the early 1950’s, “piggy-back” service was begun by the railroad to meet the competition of other rail carriers who had instituted such service. “Piggy-back” service is a system whereby over-the-road trailers, which are customarily pulled over the highways by tractor-trailer trucks, are loaded by customers at their place of business and carried from there by a truck to a railroad yard, where they are pulled onto railroad flat cars, called TTX cars. There the trailer is disengaged from the tractor and is tied to a stanchion, which holds the trailer securely on the railroad car. The railroad cars are then pulled by rail to a railhead near the consignee’s destination, where they are removed from the flat cars by a trucking or drayage company and delivered over the highways and streets to the consignee by the trucker.

The C. & E. I. Railroad has had, since the institution of “piggy-back” service in the early 1950’s, five ramps: one in Chicago, one in Dalton, Illinois, one in Madison-St. Clair County, Illinois area, one at Terre Haute, Indiana, and one at Evansville, Indiana. The ramps are merely an inclined plane, made of cinders and ties, which will permit a tractor-trailer motor vehicle to be driven up on a railroad flat car backed against the ramp. The ramps, yard and parking lots are maintained by the railroad.

At the time the “piggy-back” service was instituted, and at all times since then, the C. & E. I. has not had tractors, drivers, tools, machinery and equipment to pull and handle these over-the-road trailers. Between the early 1950’s and 1960 the C. & E. I. Railroad entered into contracts with local trucking firms to furnish the motor vehicles, drivers and equipment to haul the trailers onto and off of the flat cars. In early 1960, the local hauling and drayage company which had the contract with the C. & E. I. for the truck hauling and “piggy-back” work in the St. Louis Metropolitan area, had proved unsatisfactory to the C. & E. I. and the contract for this trucking work was open for bids. Among the bidders was Simpson whose bid was accepted and a contract was entered into, on April 1, 1960, for the “piggy-back” work at the C. & E. I. ramp at Mitchell, Illinois, between Simpson and the railroad.

Simpson is a local hauling and drayage firm which, since its acquisition by the present owner, in 1950, has been operated as a trucker doing contract cartage work, and had done “piggy-back” work under contract with other railroads prior to 1960. There have never been any officers of the C. & E. I. who were shareholders, officers or directors of Simpson.

After the C. & E. I. awarded the contract to Simpson for this “piggy-back” drayage work, Simpson sent tractors and men and equipment to the C. & E. I. ramp at Mitchell, Illinois, and these men and equipment performed the loading, unloading and delivery operations incident to the “piggy-back” work to and from the Mitchell ramp. As a part of the contract, Simpson leased an old boxcar, which was on poles, to use as office space for the Simpson dispatchers and employees and refurnished and refurbished it as an office at their own expense, for which the C. & E. I. was not billed or charged, and the railroad furnished all the electricity and heat for this office. In it were telephones hooked up directly to the C. & E. I. office in Chicago and to three other C. & E. I. locations. These were used for communication with other ramps of the railroad in order to ascertain how many trailers would be coming the following day so that Simpson could have the necessary men and equipment available and at the same time advise the ramps in Chicago and Terre Haute of trailers being loaded at Mitchell, for arrival the following day at those ramps. The work at the railroad’s ramps was coordinated and controlled through a central office of the railroad in Chicago.

Plaintiff introduced into evidence the contract between C. & E. I. and Simpson, which was in effect at the time of the injuries of plaintiff. It designated Simpson as an independent contractor, and provided that persons performing the services contracted for, were to remain the sole employees of Simpson subject to Simpson’s control and direction and not the employees or subject to the direction and control of the railroad. It provided that Simpson’s liability for freight handled while in the possession of Simpson should be that of an insurer until such time as it was delivered either to the railroad or the consignee. It further provided that “for such transporting and delivery of freight, or loading or unloading of trailers from flat cars, and for services incidental thereto” Simpson was to be paid rates to be agreed upon from time to time, based upon exchange of letter agreements. The rates Simpson charged the railroad were on an hourly basis sufficient to pay the employees for their time, the fringes for pension, health and welfare, operating and maintenance cost of the Simpson equipment and a profit for Simpson; and fluctuated in accordance with Simpson’s costs.

Plaintiff submitted testimony that part of the work done by him at the C. & E. I. ramp was not included in the contract between Simpson and the railroad and was customarily done by railroad employees on ramps of other railroads; as well as evidence that the lifting of bridge plates (heavy metal plates attached to cars to bridge the gap between cars to move trailers from one car to the next, and also attached to the wooden ramp to bridge the gap between the ramp and cars) was railroad work rather than the work of the Simpson ramp crew of which he was foreman or lead man. He also offered evidence that in actual practice he was supervised, directed and controlled in his work at the ramp by railroad employees. He offered proof of his injury while lifting a jammed bridge plate on July 25 and an injury as a result of stepping off a TTX car onto a block of wood which turned over with him on August 22, and that such blocks were used by the railroad switching crew, and left lying around the yards by railroad employees. He contends the negligence of the railroad in jamming and bending the bridge plate, and the scattering of wooden blocks on the ramp, was the cause of his permanent injury.

The railroad offered evidence that all the work done by plaintiff was incidental to the performance of the Simpson Contract, that he was not directed or controlled by the railroad, and that the communications and directions given him by the railroad were given to coordinate the railroad and ramp activities which his employer Simpson had contracted to perform; that some railroads do the ramp work with their own employees while others contract that work to be done. They also offered evidence that plaintiff had bid in the lead man’s job at their ramp through his seniority in the Teamsters’ Union at Simpson, by whom he had been employed since 1955; that while employed by Simpson at the C. & E. I. ramp he also performed services for Simpson on other jobs and that Simpson had cartage contracts with other firms and did some ramp work at other railroads which were billed by Simpson for plaintiff’s time. The railroad also offered evidence tending to impeach plaintiff’s occurrence witnesses, particularly as to the manner in which he sustained his injuries, and that the wooden blocks of the type which caused plaintiff’s injury, were used and scattered by the ramp men in their work.

Both the issue of negligence and the question of whether the relationship of employer and employee existed between the defendant and plaintiff were contested; both were presented to the jury for determination. Plaintiff offered, and the court gave both his instruction #7, IPI 160.02, concerning the F. E. L. A. rule of liability and the issue of contributory negligence, his instruction #9, IPI 160.09, the F. E. L. A., no assumption of risk instruction, as well as his instruction #10, which is not an IPI instruction, which was:

“You are instructed that in determining whether or not the plaintiff was an employee of the Chicago & Eastern Railroad at the time of the occurrences in question you should consider all of the evidence introduced relating to whose work was being performed at the times in question, and as to who had the power of control over the work and the plaintiff.”

At plaintiff’s request, the court also gave his #11 (160.08 modified) which was:

“If you find that the plaintiff was an employee of the defendant railroad, then it was the duty of the railroad to use ordinary care to provide the plaintiff with a reasonably safe place in which to do his work.”

In the trial court, plaintiff treated and presented the question of whether plaintiff was an employee of the defendant railroad, taking into account whether railroad work was being performed by plaintiff, as a question of fact for the jury. We must presume that the verdict of the jury was based upon a consideration of all matters in controversy presented at the trial, including both defendant’s negligence and the employment relationship of plaintiff and defendant. The general verdict is considered to be as broad as the issues upon which the jury was required to find. Wenihous v. Woodruff, 324 Ill App 660, 59 NE2d 523; Huehl v. Monarch Refrigerating Co., 157 Ill App 145. The jury found the issues presented in favor of the defendant and there is evidence in the record to support such finding. Under F. E. L. A., we are limited to ascertaining whether there is any evidentiary basis for the verdict and when such evidentiary basis appears our function in reviewing the record is exhausted, Bowman v. Illinois Cent. R. Co., 11 Ill2d 186, 142 NE2d 104; Hack v. New York, C. & St. L. R. Co., 27 Ill App2d 206, 169 NE2d 372; Lavender v. Kurn, 327 US 645, 66 S Ct 740, 90 L Ed 916, and such rule is applicable to verdicts against the plaintiff, as well as for the plaintiff. Thompson v. Chicago & Eastern Illinois R. Co., 32 Ill App2d 397, 178 NE2d 151; Cafasso v. Pennsylvania R. Co., 169 F2d 451.

The theory upon which a case is tried in the lower court cannot be changed on review. In re Estate of Leichtenberg, 7 Ill2d 545, 131 NE2d 487; Benson v. Isaacs, 22 Ill2d 606, 172 NE2d 209. Although plaintiff proceeded in the trial court on the theory that his employment by defendant, based on his doing railroad work, was a question of fact, he here argues that “determination of plaintiff’s status is a legal determination, not factual” contending that the legal significance of the facts is in dispute and that the jury erroneously determined plaintiff’s status due to the fact that they were not instructed as plaintiff requested them to be, in the language of section 5 of the Act. He contends that the court erred in refusing his instruction #8, not in IPI, which was:

“At the time of the occurrence there was in force a Federal Statute which provided that any contract, rule, regulation or device, whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by the Federal Employers’ Liability Act, shall to that extent be void.”

and after it was refused, the court erred in refusing his instruction #18, not in IPI, which was:

“At the time of the occurrence there was in force a Federal Statute which provided that any contract, rule, regulation or device, whatsoever, the purpose or intent of which shall be to enable any common carrier to except itself from any liability created by the Federal Employers’ Liability Act, shall to that extent be void. Whether or not such was the intent or purpose of the contract in question in this case is for you to decide.”

The only evidence of defendant’s intentions in negotiating the contract with Simpson was offered by the railroad; its witness testified that, to do its own “piggy-back” work with the day to day variance of the quantity of the work would be economically unsound.

Plaintiff has cited, Downs v. Baltimore & O. R. Co., 345 Ill App 118, 108 NE2d 537; Cimorelli v. New York Cent. R. Co., 148 F2d 575; Pennsylvania R. Co. v. Roth, 163 F2d 161; and Pennsylvania R. Co. v. Barlion, 172 F2d 710; in each the question of the status of the employee was determined as a question of law. In Downs, the railroad offered no evidence but rested on its motion for a directed verdict at the close of plaintiff’s evidence; by reason of this the questions of whether or not plaintiff was an employee of an independent contractor and whether or not plaintiff was engaged in interstate commerce, were treated by the trial court as questions of law. (See 345 Ill App 118 at page 121.) In that case the court also said, at page 130, “The question here involved being a factual one, analogous cases are not persuasive and in many cases not helpful.” In the Cimorelli case, the parties, by stipulation, submitted the question whether under the contracts the injured employee was an employee of the railroad as a matter of law; the court found he was not and that the contract did not violate section 5 of the Act, and dismissed the employee’s petition; the reviewing court, stating that each case must be decided on its particular facts and ordinarily no one feature of the relationship is determinative, concluded from the contract that the petitioner’s nominal employer was not an independent contractor, reversed and remanded, declining to determine whether the railroad’s contract was in violation of section 5 of the Act. In the Roth case, the trial court instructed the jury as a matter of law that Roth was in the employ of the railroad, after it had denied the railroad’s motion for a directed verdict, determining that the ruling in Cimorelli was applicable. In Barlion, the reviewing court affirmed the district court which held that the employee was as a matter of law an employee of the railroad, and that his nominal employee was not an independent contractor citing Cimorelli and Roth. (In Roth and Barlion the contracts were identical.)

We are compelled to note that, consistent with plaintiff’s theory below that the employment status of plaintiff was a question of fact for the jury; he did not request the determination of his status as a matter of law or request the court to instruct the jury that he was an employee of the railroad. None of the cases cited by plaintiff are authority for the giving of an instruction in the language of section 5 of the Act.

Plaintiff has cited Brant v. Chicago & A. R. Co., 294 Ill 606, 128 NE 732, in which it was held that there was no impropriety in the giving of an instruction which in substance “directed the jury that public policy does not permit an employer, by contract or written application, to relieve itself from liability for injuries occasioned by its negligence.” In Ward v. Atlantic Coast Line R Co., 265 F2d 75, the court said at page 85:

“It should be obvious at the outset that the statutory provision against devices to avoid the employer’s liability cannot be used to prove the existence of the legal situation — the employer-employee relationship — which calls into play both the statute creating this liability and the provision thereof which forbids any devices intended to avoid such liability.”

There the “statutory provision” referred to was section 5 of F. E. L. A. In Turpin v. Chicago, B. & Q. Ry. Co. (Mo), 403 SW2d 233 (1966), the Missouri Supreme Court pointed out that the “device” argument could not in any event be used to create employment under F. E. L. A., and pointed out that courts should be alert, to avoid inter-company arrangements drawn to avoid federal jurisdiction under F. E. L. A., as well as to avoid the extension of the Act to cover those engaged in other occupations. The court pointed out that under the most recent federal decisions, no jury issue exists if reasonable minds cannot differ on the effect of the evidence and its inferences. The lower court’s judgment for the railroad rendered on a post-trial motion after the jury had returned a verdict for the employee, was affirmed; the U. S. Supreme Court denied certiorari, 348 US 1003, 86 S Ct 1925,16 L Ed2d 1015.

The railroad in support of its cross appeal has cited Fawcett v. Missouri Pac. R. Co., 374 F2d 233, affirming 242 F Supp 675, cert den 382 US 907, and Turpin v. Chicago, B. & Q. Ry. Co., supra, contending that under those holdings, employees of independent contractors doing “piggy-back” work for railroads are not employees of the railroad within the meaning of the Act. These are the only cases we find reported dealing specially with injuries sustained by employees of a nominal employer who had contracted to furnish “piggy-back” service for a railroad. While summary judgment for the railroad was affirmed in Fawcett, and judgment for the railroad entered on a post-trial motion was affirmed in Turpin, we do not consider the opinions as supporting so general a statement. We believe the applicable law to the case at hand is found in the pronouncement of the U. S. Supreme Court in Baker v. Texas & Pac. Ry. Co., 79 S Ct 664 at page 665 :

“It has been well said of the question that ‘each case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative.’ Cimorelli v. New York Central R. Co., 6 Cir, 148 F2d 575, 577. Although we find no decision of this Court that has discussed the matter, we think it perfectly plain that the question, like that of fault or of causation under the Act, contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, § 220, comment c; § 227, comment a. Only if reasonable men could not reach differing conclusions on the issue may the question be taken from the jury.”

As a result of the foregoing, we are of the opinion that the trial court properly denied the post-trial motions of both parties and affirm the judgment.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       45 USC Annotated, §§ 51 to 59, hereinafter referred to as F. E. L. A.

       45 USC Annotated, § 55, the pertinent part of which is “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void . . . .”

       The evidence demonstrates that there is no established custom or practice in the railroad industry as to whether “piggy-back” work is done by the railroads through their employees and their own equipment or through contracts with independent truck lines; both practices exist in the industry in the St. Louis metropolitan area.