author:
MR. JUSTICE DRUCKER
      McCOEMICK, J.,

text:
    Harry L. Trugman, as Trustee, etc., et al., PlaintiffsAppellees, v. Patricia Sylvia Klein, as Executor of the Estate of Bertram A. Klein, Deceased, et al., Defendants-Appellants, and Marjorie Gardner, et al., Defendants-Appellees.
    Gen. No. 51,157.
    First District, Fourth Division.
    April 21, 1967.
    Rehearing denied May 22,1967.

      Tenney, Bentley, Guthrie & Howell, of Chicago (Edwin H. Conger, of counsel), for appellants.
    Fischel, Kahn, Weinberg, Diamond & Brusslan, of Chicago (Max H. Weinberg, of counsel), for defendantsappellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a decree construing the terms of a living trust established by Lottie Klein, who was deceased prior to the commencement of this action.

In 1962 plaintiffs, as trustees, filed a suit seeking a determination of whether $90,000 was distributable as trust income or whether it constituted trust corpus. In 1964 Bertram Klein and his wife, Patricia, filed a counterclaim requesting a determination that the heirs at law of Lottie Klein in existence at her death are entitled to the trust corpus upon final distribution. (Patricia Klein, in the capacity of executrix of the estate of Bertram Klein, was substituted for Bertram upon his death in 1966.) The court found that the $90,000 constituted trust corpus and that the heirs at law of Lottie Klein were to be determined at the date of the termination of the trust, not at the death of Lottie Klein.

The facts are not in dispute. Lottie Klein and her sons, Alec and Bertram, were the owners of the F. L. Klein Noodle Company, a partnership business. Immediately following the death of Alec Klein in January 1940 the partnership interests in the business were as follows: the estate of Alec, 50%; Lottie Klein, 25%; and Bertram, 25%. Approximately six months after Alec’s death, Lottie and Bertram Klein each entered into a contract with Alec’s estate pursuant to which each would purchase a one-quarter interest in the business. The consideration for each one-quarter interest, to be paid over a period of time, was $90,000.

Subsequently, on November 1, 1941, Lottie Klein established two trusts, commonly known as Trusts Nos. 1 and 2, respectively. She assigned a 20% interest in the company to Trust No. 1 (this trust is not at issue in this case) and she assigned a 5% interest in the company to Trust No. 2 (the trust at issue, hereinafter referred to as “the trust”). The trust was for the express purpose “of establishing certain independent incomes and estates for members of her immediate family,” and it was to continue until the death of both Lottie and Bertram. Under paragraph 19 of the trust agreement the trustees were granted “full power and authority to determine the manner in which expenses are to be borne and the manner in which receipts are to be credited, as between principal and income, and also to determine what shall be ‘income,’ ‘net income’ and ‘principal’ . . . .” Various paragraphs of the trust empowered the trustees to accumulate, invest and reinvest any or all of the trust income in their discretion in lieu of paying it to the income beneficiary otherwise entitled thereto; and to subsequently pay to the beneficiary the accumulated income “and the proceeds and avails thereof.” However, under paragraph 3 the trustees were required to “distribute income accumulated . . . during any given year within ten (10) years after the year of the creation thereof.”

The income beneficiaries are designated by paragraphs 3 through 7 of the trust agreement, as follows:

Paragraph 3 provides that while both the trustor and Bertram A. Klein are living, Bertram A. Klein is the sole income beneficiary;

Paragraph 4 provides that if Bertram A. Klein predeceases the trustor leaving “no lawful, living descendants or widow,” her descendants are the income beneficiaries ;

Paragraph 5 provides that if Bertram A. Klein predeceases the trustor but leaves a “widow or lawful, living descendants,” the income is to be paid (if the trustees decide to pay it) to the “then living heirs at law of Bertram A. Klein, per stirpes”;

Paragraph 6 provides that if the trustor predeceases Bertram A. Klein and he has a wife, the wife becomes the new income beneficiary; and

Paragraph 7 governs the situation where Bertram A. Klein survives his mother but has no wife. In this event the income is payable to “the then living heirs at law of Bertram A. Klein” (sic).

Under paragraph 20, “income accrued or collected but not distributed at the time of the termination of any estate or interest hereunder shall belong and be payable as income to the beneficiary or beneficiaries entitled to the next eventual estates or interests.”

The trustor also directed (in paragraph 9) that upon termination of the trust the principal and accumulated income should be distributed “to the heirs at law of the Trustor, per stirpes.”

On December 15, 1942, Bertram Klein assigned to the trust his interest under the aforesaid agreement to purchase a 25% interest in the business from Alec’s estate. Payment for this interest was made by utilizing the trust’s share of partnership earnings from 1943 and 1944 and also from a loan to the trust by the business. The debt due Alec’s estate thus was satisfied in 1944 and repayment of the loan was completed in 1952. In 1957 the business was sold to the Sunshine Biscuit Company and the trust received its pro rata portion of the proceeds. Shortly thereafter Bertram Klein demanded that $90,000 be distributed to him as accumulated income. The trustees disagreed as to whether the money represented accumulated income or trust corpus and therefore no distribution was made.

At the trial of this cause Harry Trugman, a trustee, testified that in his opinion the $90,000 in question was trust income. He stated:

I was involved in this Trust from the very beginning. And I was in contact with all parties whoever had anything to do with this Trust. And based on the original planning and intent of the various parties, particularly B. A. Klein [referring to Bertram Klein], at the time when he transferred his 25% interest which he had purchased from the estate of Alec Klein to Trust No. 2 — Based on that background material I felt that B. A. would never have sold his interest to Trust No. 2 if he had known that this amount would be converted to corpus.
The primary purpose at the time for the assignment of the 25% interest to Trust No. 2 was to spread income to another taxpayer so as to reduce the total income taxes for the family and the trusts which the family controlled.
The family group referred to earlier would not consist of anybody other than Bertram Klein and Lottie Klein and possibly the spouse of Bertram Klein.

Aaron Taymor, who became a trustee four years after Bertram transferred his contract to purchase the partnership interest to the trust, agreed that the trusts were established for tax purposes. He further testified that in his opinion the $90,000 in question was trust corpus. His opinion was based solely upon his interpretation of paragraph 2 of the trust agreement, which provided in pertinent part as follows:

The Trustees shall have the right to acquire, from time to time, by gift or purchase, additional undivided shares and interests in the real estate, business and good will of F. L. Klein Noodle Company, not Inc., a partnership, said shares and interests so to be acquired to be held and managed by the Trustees as part of the Trust Estate and subject to all and any of the provisions hereof in like manner as if the said shares and interests had been placed in this trust by the Trustor, and for this purpose, shall have the right to mortgage, pledge or otherwise hypothecate the principal of the Trust Estate or any accumulated income thereof not available in cash or both. Anything hereinelsewhere to the contrary notwithstanding, the Trustees shall in no event make any distribution to any beneficiary or beneficiaries of the Trust Estate until and unless all and any of the obligations of the Trust Estate relative to the acquisition of any further share and interest in F. L. Klein Noodle Company, not Inc., a partnership, shall have been fully satisfied ....

The court, relying primarily upon paragraph 2 of the trust agreement, found that the $90,000 constituted trust corpus. The court further found that, for the purpose of distribution under paragraph 9, the heirs at law of Lottie Klein were to be determined as of the date of the termination of the trust and not as of the death of Lottie Klein.

In this appeal defendants contend that after giving consideration to the general intention of the trustor in establishing the trust it should be determined that the $90,000 constitutes accumulated trust income. Additionally, defendants contend that the trust corpus should be distributed to the heirs at law of Lottie Klein as determined at the date of her death.

Under paragraph 2 of the trust agreement the trustees had the right (but are not required) to purchase additional interests in the noodle company. We do not believe that the portion of paragraph 2, which provides that any acquisition in the noodle company shall be “held and managed by the Trustees as part of the Trust Estate and subject to all and any of the provisions hereof in like manner as if said shares and interests had been placed in this Trust by the Trustor,” expresses any intention of the trustor as to whether such an acquisition is to be treated as principal or income. In paragraph 19 the trustor, with certain exceptions, granted to the trustees the power to determine what shall be allocated as between principal and income. Also in paragraph 19 the trustor specifically designated some property as trust income and other property as trust corpus. The scope of this power was not limited to receipts of the trust but included any trust property whatsoever. Therefore, if the trustor had intended to direct whether an acquisition of the noodle company shall be income or principal she would have included such a provision in paragraph 19. We find that the aforesaid language of paragraph 2 relied upon by the appellees deals only with the authority of the trustees to purchase a business interest in the noodle company and their powers to hold and manage the same thereafter.

Nor do we believe that the portion of paragraph 2 which directs that distribution to beneficiaries be withheld pending full payment for any interest to be acquired in the noodle company has any bearing on the question before us. While the trustees were authorized and directed to use or accumulate income for the purchase of the business interest, we do not understand such a direction to authorize conversion of income to corpus, and we do not consider that this result follows by implication. It would have been extremely simple to direct such a transfer if it had been intended. The words used affect only the time of distribution and are not words of entitlement, nor independently dispositive in character. Northern Trust Co. v. North, 73 Ill App2d 469, 220 NE2d 28.

From what the record discloses of the background of this case, it was as evident at the time of creation of the trust as it is now, that the business interest to be acquired would be worth a substantial amount of money. The approximate value had more or less been determined by the contracts of purchase from Alec’s estate. It was also evident that the trustor was cooperating fully with her son Bertram in a plan to split his income in order to minimize income taxes, and the trust was to be used as the vehicle for accomplishing this purpose. Whether it was a proper or successful plan is a matter with which we are not concerned. Its existence does, however, highlight the fact that Bertram was interested in saving a part of the income tax on his income from the noodle company; and that his mother was working with him toward that end. And it highlights further the fact that a person interested in saving a part of the tax on income from certain property would be extremely unlikely to yield up the property itself without consideration. To be sure, we are now speaking of the likelihood of Bertram’s intention, but we believe that the whole of the trust instrument, let alone the whole record, discloses a community of interest and intention on the parts of Bertram and his mother. Mrs. Klein’s close relationship with her son seems much more likely to have produced in her a cooperative rather than an antagonistic attitude toward Bertram’s tax-saving plan (she made Bertram a trustee of the trust in question); and to have produced in her an intention to create, through the trust, a temporary haven for Bertram’s purchase contract, rather than a well-camouflaged trap which would permanently deprive him of the substantial trust income of which she herself had designated him as the beneficiary. If Bertram had not assigned to the trust his contract to purchase the 25% interest in the noodle company he, rather than the trustees, would have received from the company over the years sufficient income to pay off the purchase price (though probably subject to higher income tax) and he would have wound up owning the 25% business interest. Or, if there had been cash corpus in the trust to pay for the business interest when Bertram assigned his contract to the trust, it could have been paid for out of principal, in which case, over the ensuing years, Bertram would have received distribution of $90,000 of trust income. Under the facts as they actually existed, however, the $90,000 of income received by the trustees from the company, and otherwise distributable to Bertram, was withheld (pursuant to the plan of Bertram and the trustor) and used to complete the purchase of the business interest. But then neither the $90,000 of income, nor the business interest purchased with it, was distributed to Bertram.

It is possible that such an unusual and unfair result could be intended by a trustor, but under all the circumstances of this case we think that it was not so intended by this trustor and that the inequitable conclusion of the trial court is one which should not be reached in the absence of a specific direction to that effect in the trust instrument. As indicated, we find no such specific direction.

Further support of our position is found in paragraph 3 of the trust agreement. The trustor directed that all income which was accumulated during any given year must be distributed to the income beneficiary within ten years after the accumulation thereof. If the trustees were allowed to change the character of accumulated income into trust corpus merely by investing it then, conceivably, there would be no accumulated income and the above provision of paragraph 3 would be rendered meaningless. We cannot believe it was trustor’s intent to have the effect of this provision vitiated by the investment of accumulated income. If the trustor had intended to allow the trustees to alter the character of accumulated income in that manner she would have provided in this intricately drawn document that all income which was accumulated “but not invested” must be distributed within ten years.

Therefore, we find that the $90,000 in question represents accumulated trust income.

The remaining issue in this case requires the trust agreement to be construed so as to determine the recipients of the corpus upon termination of the trust. The relevant portion of the trust agreement is paragraph 9, which provides:

In the event of the death of the last survivor of Bertram A. Klein and the Trustor, then the Trustees shall forthwith distribute and pay all and any the principal and accumulated income and any and all other the proceeds and avails of the Trust Estate to the heirs at law of the Trustor, per stirpes.

Lottie Klein died on September 26, 1961. Bertram Klein died on February 3, 1966, shortly after the notice of appeal was filed in this case. Appellants (the widow of Bertram Klein in her own right and as executrix of his estate) contend that the heirs at law of the trustor are to be determined as of the time of Lottie Klein’s death and therefore the trust corpus should be divided equally between the estate of Bertram Klein and the children of Alec Klein. Defendants-appellees (the children of Alec Klein) contend that the aforesaid heirs are to be determined at the termination of the trust and therefore they should receive the entire corpus.

In Le Sourd v. Leinweber, 412 Ill 100, 105 NE2d 722, where the decedent in his will devised real estate to his daughter for life and ultimately a remainder to his heirs, the court held that the heirs were to be determined at the date of the testator’s death and not at the termination of the life estate. The court stated at page 105 that:

Ordinarily, the word “heirs” is used to designate those persons who answer this description at the death of the testator .... A devise of a future interest to the testator’s “heirs” is construed as a devise to such persons as are his heirs at the time of his death, unless the intention of the testator to refer to those who would have been his heirs had he died at a subsequent time is clearly manifest by the language used in the will. This construction is not changed by the fact that a life estate may precede the devise to the testator’s heirs. Neither does it make any difference whether the heirs were living or dead when the period of distribution arrived, nor that the life tenant might be the sole heir of the testator.

Rules of construction of wills are alike applicable to the construction of trust agreements. Brinkerhoff v. Ridgely, 232 Ill App 12, 17.

Defendants-appellees argue that the trust agreement establishes that the settlor intended her heirs at law to be ascertained at the termination of the trust, and in support thereof they rely principally upon the language of paragraphs 20 and 22, respectively.

Appellees cite a clause from paragraph 20 which provides that “the interest of the beneficiaries shall in no case vest until and unless said beneficiaries shall be entitled to receive the demand . . . the trust or any part thereof in accordance with the terms and provisions of this agreement.” However, from an examination of the remaining portions of that paragraph we find that its scope is limited to trust income and is in accord with other provisions of the trust agreement which forbid payments of income to be made “by way of anticipation.”

Paragraph 22 is a spendthrift provision and contains the clause that “all payments of income and distribution of principal to the several beneficiaries of the Trust Estate as and when such payments or distributions become due, shall be made to said beneficiaries in person or upon their personal receipts . . . .” The provision also contains the usual prohibitions against assignability and transferability. Appellees assert that the spendthrift clause has the effect of rendering an interest, otherwise vested, contingent upon survivorship. We are apprised of no authority which establishes that absolute rule. In each of the cases relied upon in support of that assertion the court was called upon to construe a will; and in each case the court construed the spendthrift clause contained therein in light of the testator’s intention as ascertained upon examination of his entire will. In the instant case the provisions of the trust agreement cover innumerable contingencies concerning the disposition of trust income. The fact that the settlor gave little thought to the disposition of trust corpus is evident by the single, short provision devoted thereto. We cannot say that the existence of a standard spendthrift provision in the trust agreement before us clearly manifests an intention of the settlor that her heirs at law be ascertained upon termination of the trust. Nor does the presence of the aforesaid “in person” clause contained within the spendthrift provision add to the forcefulness of appellees’ contention. In a long and complex document the maxim that every word be given a significant meaning is of little value. Costello v. Warnisher, 4 Ill App2d 571, 124 NE2d 542. In Northern Trust Co. v. North, 73 Ill App2d 469, 220 NE2d 28, after an examination of the testatrix’ will, we gave no independent dispositive effect to a substantially identical “in person” clause contained within a spendthrift provision. In such a document as that before us in the instant case, an “in person” clause included as part of a standard spendthrift provision shall not be construed to have an independent dispositive effect.

We find that neither of the aforesaid paragraphs of the trust agreement clearly manifests an intent upon the part of the settlor, Lottie Klein, that her heirs be ascertained at the termination of the trust.

In further support of their position appellees argue that paragraphs 3 and 4, respectively, demonstrate that it was the intention of the settlor that no portion of the trust income or corpus was to vest in the estate of a deceased beneficiary. Paragraph 3 was amended on December 31, 1946, to provide that if Bertram was to die before receiving accumulations to which he might be entitled, the accumulated income would be distributed to Bertram’s then living children or, if none, then to Bertram’s spouse, and if no spouse, to the then living descendants of Alec Klein. Prior to amendment paragraph 3 contained no reference to Bertram’s “then living children” nor to Alec’s “then living descendants.” Moreover, the amendment was executed by the three trustees and by Bertram Klein individually, by authority of paragraph 26 of the trust agreement. Even though the settlor was alive and in apparent excellent health at that time she did not sign the amendment, nor is there evidence that she acquiesced therein. Therefore we cannot consider the amendment in acertaining her intention with regard to the provisions of the trust, agreement.

Paragraph 4 prior to amendment provided that had Bertram predeceased Lottie leaving no living descendants, the income would have gone to the trustor’s then living heirs at law. That paragraph actually supports the appellants’ contention, in that it demonstrates that the drafter of this instrument was aware of how to designate the heirs of an ancestor in existence at a time other than at the latter’s death. In the instant case if the settlor had intended that corpus of the trust be distributed to her heirs at law in existence at the termination of the trust, the language of paragraph 9 which disposes of the corpus would have directed the trustees to distribute the corpus to “the then living heirs at law of the Trustor” instead of to “the heirs at law of the Trustor.”

We find that none of the provisions of the trust agreement relied upon by the defendants-appellees (nor any other provision thereof) clearly manifest an intent upon the part of the settlor, Lottie Klein, that her heirs at law be determined at the termination of the trust. Therefore, for the purpose of distribution under paragraph 9, the heirs at law of Lottie Klein are to be ascertained as at the date of her death.

We have also found that the $90,000 in question represents accumulated trust income. Therefore the decree of the trial court is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.

Reversed and remanded with directions.

ENGLISH, P. J., concurs.

McCOEMICK, J.,

dissents.

I must respectfully dissent to the conclusion reached in the majority opinion. As pointed out therein, the facts are not disputed; the only question before this court is an interpretation of the trust agreement to determine whether or not the transfer of the 25 percent interest in the F. L. Klein Noodle Company, a partnership, constituted an increase in the trust corpus or was merely an investment of the income, and that no increase in the trust corpus resulted therefrom.

As pointed out in the majority opinion, immediately following the death of Alec Klein in January 1940, the partnership interests in the business were as follows: estate of Alec, 50%; Lottie Klein, 25%; Bertram, 25%. Six months after Alec’s death, Lottie and Bertram each entered into a contract with Alec’s estate, which contract provided that each would purchase a one-quarter interest in the business; the consideration for each one-quarter interest to be paid over a period of time was $90,000. Subsequently, on November 1, 1941, Lottie Klein established the trust known as Trust No. 2, to which she assigned a 5% interest in the company. The trust agreement provided that the trustor, Lottie Klein, desired to create a trust in and to an undivided 1/20 share and interest which she now owns in the F. L. Klein Noodle Company, a partnership. It is further set out that the purpose of the trust was to establish independent incomes and estates for members of her immediate family, and that the trustees are to have and hold the said property together with any additional property “of any kind, nature or description whatsoever, which may from time to time be added to this trust by the trustor or acquired by the trustees in accordance with the terms and provisions hereof . . .”

Paragraph 1 of the agreement provides that:

“The Trustees shall hold and manage the Trust Estate and shall, insofar as possible, and consistent with the terms and provisions hereof, invest and reinvest all funds from time to time available for investment or reinvestment in income-producing bonds, stocks, mortgages and other securities, investments and properties as the Trustees, in the exercise of their uncontrolled discretion, shall deem proper and for the best interests of the Trust Estate, . .

The trustees are given a very broad power to deal with the trust estate and particularly with that portion of the trust estate which is an interest in the F. L. Klein Noodle Company, and they are authorized to agree that it be changed from a general partnership to a limited partnership, or that it be made a corporation, or any other legal combination which they may in their discretion desire. It is worthy of note that there is no right given to the trustees to sell any interest in the F. L. Klein Noodle Company.

. Paragraph 2 is the crucial clause in the contract, and it is mentioned in the majority opinion; however, since it is not completely set out, we believe it would be advisable to repeat it here. It provides the following:

“The Trustees shall have the right to acquire, from time to time, by gift or purchase, additional undivided shares and interests in the real estate, business and good will of F. L. Klein Noodle Company, not Inc., a partnership, said share and interests so to be acquired to be held and managed by the Trustees as part of the Trust Estate and subject to all and any of the provisions hereof in like maimer as if the said shares and interests had been placed in this trust by the Trustor, and for this purpose, shall have the right to mortgage, pledge or otherwise hypothecate the principal of the Trust Estate or any accumulated income thereof not available in cash, or both. Anything hereinelsewhere to the contrary notwithstanding, the Trustees shall in no event make any distribution to any beneficiary or beneficiaries of the Trust Estate until and unless all and any of the obligations of the Trust Estate relative to the acquisition of any further share and interest in F. L. Klein Noodle Company, not Inc., a partnership, shall have been fully satisfied; and, in the event of any such acquisition, the Trustees shall not invest or reinvest the net cash income of the Trust Estate but shall hold and retain the same in cash or in bank funds and expend the same only for the purpose of satisfying all and any of the obligations of the Trust Estate relative to any such acquisition of further shares and interests. The Trustees shall be released of all and any liability or obligation to the Trust Estate and the beneficiaries thereof, or either, as to the acquisition of any such further shares and interests and shall have no responsibility whatsoever in and with regard thereto excepting only for action taken on non-action suffered wilfully and in bad faith.”

Paragraph 3 of the trust agreement, which is touched on rather lightly in the majority opinion, provides:

“Excepting only as hereinelsewhere in paragraph (2) hereof provided, the Trustees may, in the exercise of their uncontrolled discretion, during the lifetime of the Trustor, do any of the following or any possible combination thereof: Accumulate and invest and reinvest all and any of the net income of the Trust Estate, or pay said net income quarter-annually or oftener, but not by way of anticipation, to Bertram A. Klein, or partially accumulate and invest and reinvest and partially pay and distribute said net income quarter-annually or oftener, but not by way of anticipation, to Bertram A. Klein, or pay and distribute accumulated income or the proceeds and avails thereof, or both, partially or wholly, to Bertram A. Klein. . . .”

Paragraph 2, read together with paragraph 3, gives the trustees the right to invest in the F. L. Klein Noodle Company, and if any meaning is to be given to paragraph 2, it must be that those interests shall be held and managed by the trustees as a part of the trust estate. Reading paragraph 2 in connection with the introductory paragraph, which we have previously quoted, it must be interpreted that the interests in the Klein Noodle Company which are to be acquired are to be acquired as trust res. That is further stressed by the fact that in paragraph 3 the provision with reference to investments is separated and set apart from the rights given in paragraph 2 of the agreement. There is no question that under paragraphs 1 and 3 of the agreement the trustees have the right to invest and reinvest the net income of the trust estate, but in paragraph 3 a red flag is raised, indicating that the only acquisition of additional interests in the F. L. Klein Noodle Company can be made under the provisions of paragraph 2. A reasonable interpretation of those provisions would be that the only investment which can be made in the F. L. Klein Noodle Company, a partnership, must be as a part of the trust res. In fact, it would seem to be an extraordinary construction to hold that the trustees had the right to invest the accumulated income in the F. L. Klein Noodle Company, particularly, when we consider that in paragraph 4 of the agreement it is provided that the trustees may invest and reinvest the net income of the trust estate, or pay it quarter-annually to the then living heirs at law of the trustor, and the further controlling provision in that clause which makes it mandatory upon the trustees to distribute all accumulated income within 10 years. The purpose of the trust was to retain the integrity of the F. L. Klein Noodle Company.

On December 15, 1942, Bertram Klein had assigned to the trust his interest to purchase a 25% interest in the business from Alec’s estate. Payment was made by utilizing the trust share of partnership earnings from 1948 and 1944 and also from a loan to the trust by the business. The debt to Alec’s estate thus was satisfied in 1944, and the repayment of the loan was completed in 1952. In 1957, the business was sold to the Sunshine Biscuit Company, and the trust received its pro rata portion of the proceeds. Shortly thereafter Bertram Klein demanded that $90,000 be distributed to him as accumulated income. The trustees disagreed as to whether the money represented accumulated income or trust corpus, and therefore, no distribution was made.

It would seem apparent that it was the intention of Bertram Klein that the trust, rather than he, should pay for the 25% partnership interest with the pro rata earnings, since the income tax to the trust on the aforesaid earnings would be substantially less than if Bertram paid the tax thereon. It may have been Bertram’s intention that after all the payments were made by the trust, this partnership interest would then be payable to Bertram, the income beneficiary of the trust. However, it is not the intention of the beneficiary which is controlling, but it is the intention of the settlor as determined from the trust document.

In this case it would seem to be very clear — as the master found and as the trial court decreed — that the $90,000 which was paid for the 25% interest in the partnership must be considered as trust res.

The majority opinion devotes a great deal of time to arguing that to so hold would deprive Bertram Klein of the $90,000 income. Most of the discussion in that portion of the opinion is argumentum ad hominem. The fact that Bertram did not understand the contract at the time he entered into the agreement is of no avail; nor can this court consider the fact that he may have made a poor bargain. It is not the duty of this court to reform a contract which, in the opinion of the writer of this dissent, is clear and definite.

The other question before this court is the time when, under the terms of the trust, the heirs at law of Lottie Klein were to be determined. The opinion of the majority is that they were to be ascertained as of the date of Lottie Klein’s death. With this determination the writer of this dissent is in accord.

       The loan was made in 1944. No distribution of partnership earnings was made to the trust until the loan was repaid. Instead, as income was earned the trust would be credited on the books of the partnership with a partial payment on the loan.

       There was no intent, by this paragraph, to protect the control of the Klein Noodle Company since it was already entirely owned by the Klein family.

       The designations were as follows:
      (a) Any interest or dividend received by the Trustees on any security held hereunder, which is accrued and unpaid at the time of the delivery of such security to the Trustees, shall be considered as income;
      (b) In case of securities purchased at a discount, the entire subsequent sale price or maturity value shall be credited to principal;

        (c) In case of securities purchased at a premium, the Trustees shall charge the premium against principal without amortizing the same; and
      (d) Any stock dividend or subscription right which may be declared upon or issued in connection with any stock constituting a portion of the Trust Estate shall be considered as principal and not as income.

       The remainder of paragraph 20, from which the portion relied upon by appellees was taken out of context, provides:
      Income accrued or collected but not distributed at the time of the termination of any estate or interest hereunder shall belong and be payable as income to the beneficiary or beneficiaries entitled to the next eventual estates or interests. No interest shall accrue upon any income available for distribution unless the same shall not be promptly distributed by the Trustees in accordance with the terms and provisions hereof.

       Routt v. Newman, 253 Ill 185, 97 NE 208; First Nat. Bank of Chicago v. Cleveland Trust Co., 308 Ill App 639, 32 NE2d 964; Cowdery v. Northern Trust Co., 321 Ill App 243, 53 NE2d 43; Geiger v. Geer, 395 Ill 367, 69 NE2d 848.

       Paragraph 4 was also amended at the same time and in the same manner as was paragraph 3. The amendment changed the word “heirs” to “descendants” and made other changes not here relevant.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    A. & H. Lithoprint, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Bernard Dunn Advertising Co., d/b/a American Academy of Thoroughbred Handicapping, Defendant-Appellant.
    Gen. No. M-51,719.
    First District, Fourth Division.
    April 21, 1967.

      Karras, Greene, Licastro and Licastro, of Chicago, for appellant.
    Robert V. Conners, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a judgment in favor of the plaintiff for the amount of an unpaid contractual debt. In this appeal defendant contends that plaintiff accepted payment of a lesser amount in full satisfaction of the debt.

Plaintiff, a printing company in the downtown area of Chicago, Illinois, performed various printing services for the defendant for which defendant owed the sum of $5,-675.50. On July 2, 1964, a conference was held between representatives of both companies after which the plaintiff agreed to accept payment of ten percent (10%) of the aforesaid debt in full satisfaction thereof. According to the evidence defendant’s creditors were informed that defendant was in a precarious financial position and that an effort was being made to have the creditors accept 10% of their respective claims or else defendant would be forced to initiate bankruptcy proceedings. A check dated July 8, 1964, in the amount of $567.55 was sent to the plaintiff. The check was signed by Bernard Dunn, president of the defendant company, and carried the following endorsement on the back:

“In full and final settlement of any monies due and owing to A & H Lithoprint, Inc. by American Academy of Thoroughbred Handicapping up to and including July 8,1964.”

Plaintiff added an endorsement, dated July 13, to the check without the knowledge of or acquiescence by defendant :

“This check is being accepted with the above endorsement [referring to defendant’s endorsement as aforesaid] only with the understanding and condition that the A.A.T.H., and all of its affiliates are closing down business, or are going bankrupt, and that they are not selling or giving away, any of its rights or publications to any party or company.”

Plaintiff caused the check to be certified on July 14, 1964, and also sent a letter to the defendant setting forth the same conditions for acceptance as were placed on the check by plaintiff. However, while the letter was dated July 13, 1964, the envelope bore a postmark of the afternoon of July 15 and therefore it could not have been received by defendant prior to the certification of the check on July 14. Plaintiff continued to do business with defendant, but on a cash basis.

Defendant contends that the plaintiff accepted the check for $567.55 in full satisfaction of the debt owed. Plaintiff contends principally that since there was no dispute as to the amount of the debt it was not bound by the defendant’s endorsement that the check was in full and final settlement of any monies due and owing.

A partial payment of a fixed and certain demand, which is due and not in dispute, is not full satisfaction of the entire debt notwithstanding any conditions placed by the debtor upon acceptance of the payment. In re Estate of Cunningham, 311 Ill 311, 142 NE 740; Wright v. Federal Wrecking Co., 331 Ill App 231, 237, 73 NE2d 16. However, as acknowledged by the plaintiff, a new consideration will support the discharge of a debt by the payment of a lesser amount. The evidence in the instant case shows that defendant notified his creditors of his failing financial position and a composition agreement was entered into by which they agreed to accept a 10% settlement in full satisfaction of their respective claims. In Gillfillan v. Farrington, 12 Ill App 101, the court in a similar situation held that acceptance by other creditors was sufficient consideration to support a binding agreement. The court further held that it was of no significance that there was no convocation of creditors; that correspondence with each creditor was had separately; or that one creditor, when assenting to the proposition, was unaware of the action of the other creditors. In quoting with approval from that case, the court in Union Cent. Life Ins. Co. v. Weber, 285 Ill App 568, 576, 2 NE2d 746, stated:

[I]t has been held that a debt cannot be satisfied by the payment of a less sum of the money of the debtor, and that a promise to discharge it upon such payment is void for want of consideration; but the rule does not apply to an agreement, mutual in its obligation, between several creditors with a failing debtor. In such a case the promise of each is supported by those of the others, which is deemed a sufficient consideration. Compliance with its terms on the part of the debtor is a good defense to an action by the creditor for the residue of his original demand — not, indeed, as a technical accord and satisfaction, but upon principles of equity as showing a new adjustment of the debt, so made that he cannot repudiate it without committing a fraud upon other and more fruitful creditors.

In the instant case, since defendant’s creditors agreed to accept a 10% payment in full satisfaction of their respective claims against the defendant, there is sufficient consideration to sustain the agreement between the plaintiff and defendant.

Plaintiff also argues on appeal that defendant fraudulently misrepresented his financial condition, in that he was not insolvent, and therefore the agreement should be set aside. Plaintiff bases this argument solely upon the premise that defendant has remained in business subsequent to the agreement. However, to allow a financially distressed debtor to remain in business, without the necessity of bankruptcy proceedings, is the purpose of an agreement with creditors to accept a settlement on their claims. Therefore fraud cannot be imputed to the defendant because he remained in business. Plaintiff adduced no evidence to support his argument that defendant acted fraudulently.

Therefore, the judgment of the trial court is reversed and the cause remanded with directions that judgment be entered in favor of the defendant.

Reversed and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.

       Richard Hall, an officer of the plaintiff company who also represented the plaintiff at the conference, first testified that defendant agreed to go out of business if plaintiff accepted the 10% settlement in full satisfaction of the debt. On cross-examination Hall admitted that defendant’s representative only told him that if defendant was sued the company would go into bankruptcy.
      Defendant introduced into evidence letters written to various creditors in which defendant offered to pay 10% but in none of them did defendant promise to cease operations if the creditor agreed to the settlement.

       Defendant introduced into evidence letters of acceptance of several creditors. Plaintiff does not contend, nor is there any evidence in the record to show, that not all of defendant’s creditors accepted the 10% payment. Even so, a composition agreement is binding on those creditors who are parties to it, notwithstanding that some of the debtor’s creditors are not parties to it. Condict v. Flower, 106 Ill 105.


text:
    Floyd A. Di Carlo, et al., Plaintiffs-Appellants, v. State Farm Automobile Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. M-51,753.
    First District, Fourth Division.
    April 21, 1967.

      David Alswang and Arthur Walter, of Chicago (David Alswang, Arthur Walter and B. J. Kelly, of counsel), for appellants.
    Querrey, Harrow, Gulanick & Kennedy, of Chicago (John T. Kennedy, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from the dismissal of plaintiffs’ complaint in which the plaintiffs sought judgments upon arbitration awards allegedly received in compliance with the provisions of the Uninsured Automobile Coverage of their automobile insurance policy.

On April 16, 1964, Floyd Di Carlo, one of the plaintiffs, purchased an automobile insurance policy from the defendant. Under one of the provisions of the policy (Coverage U-Insuring Agreement in — Uninsured Automobile Coverage) the defendant undertook the following obligation:

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injuries sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the Company, or if they fail to agree, by arbitration ....

An uninsured automobile was defined to mean:

(1) a land motor vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident ....
(2) a hit and run automobile as defined . . .
Hit and run automobile — means land motor vehicle which causes bodily injury to insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident ....

Arbitration procedures are set forth in Condition 15 of the policy:

If any person making claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 80 days, then upon request of the insured or the company such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, each of whom shall pay his or its chosen arbitrator and shall bear equally the expense of the third arbitrator and all other expenses of the arbitration. . . .

While the policy was in full force and effect plaintiffs presented a claim to the defendant which assertedly arose from an accident with an “uninsured automobile.” However, the parties could not reach an agreement. Plaintiffs selected an arbitrator and requested the defendant to select an arbitrator, but the latter refused. Plaintiffs then appeared before a judge of the circuit court and obtained the appointment of an additional arbitrator. This arbitrator and the one selected by plaintiffs met and rendered awards to the plaintiffs, a copy of which was sent to the defendant. Upon defendant’s refusal to satisfy the aforesaid awards plaintiffs filed a complaint to obtain judgments thereon. In their complaint plaintiffs alleged that they suffered bodily injuries as the result of an accident involving physical contact with an uninsured automobile, or hit and run automobile, within the meaning of the insuring agreement. An order of default was entered against the defendant for failure to appear, which was vacated upon defendant’s petition. Defendant then filed a motion to dismiss the complaint (thereby admitting the allegation of physical contact with an uninsured or hit and run automobile) alleging that the arbitration awards had not been rendered in the manner required by the insurance policy and by the Uniform Arbitration Act. Defendant’s motion was allowed and plaintiffs appealed.

Plaintiffs contend that the arbitration awards were obtained in accordance with the provisions of the insurance policy; that defendant, having previously refused to arbitrate, waived its right to assert plaintiffs’ noncompliance with the Uniform Arbitration Act; and that the default judgment should not have been vacated.

Under the insurance policy in question, if an agreement cannot be reached between the insured and insurer, then each party shall select an arbitrator who in turn shall select a third arbitrator. If the third arbitrator cannot be agreed upon then, upon request of either the insured or insurer, the third arbitrator shall be appointed by the court. The method of selecting a third arbitrator by the court, in the event the two arbitrators are unable to agree upon a third arbitrator, does not empower the court to select an arbitrator when one of the parties fails to exercise its prerogative of selection. The policy of insurance itself provides no remedy whatever if the insurer refuses to appoint an aribtrator initially. Therefore, we find that the arbitration awards were not obtained in accordance with any provision of the policy of insurance and are of no effect.

We further find that the awards were not obtained in compliance with the Uniform Arbitration Act (Ill Rev Stats 1965, c 10). Sections 102 and 103 of that Act provide that upon the showing of an agreement to arbitrate and the failure of a party to comply therewith, the court shall order the parties to proceed with arbitration with the arbitrators to be selected in the manner specified in the agreement. However, to invoke that Act summons must be served in accordance with section 115. Plaintiffs did not comply with that section. We find no merit in plaintiffs’ contention that defendant has waived its right to assert noncompliance with the Arbitration Act. Since the purpose of the Act is to compel arbitration where an agreement to arbitrate is breached by one of the parties thereto, we cannot say that by failing to arbitrate in accordance with the agreement a waiver has taken place. Nor has defendant committed such a waiver by failing to proceed under the Arbitration Act to set aside the award, since plaintiffs did not bring their proceeding under that Act.

Plaintiffs’ final contention is that the default judgment was improperly vacated. In support of its petition to vacate the default judgment defendant filed a verified petition, which was uncontradicted, in which defendant stated that it failed to appear because of some confusion in the claims office. After an examination of the record we find that defendant’s petition, filed on the same day the judgment of default was entered, was properly allowed.

Therefore, we find that the plaintiffs’ complaint was properly dismissed by the trial court.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       Plaintiffs rely upon Andeen v. Country Mut. Ins. Co., 70 Ill App2d 357, 217 NE2d 814, in support of their contention. We find that case to be inapplicable to the instant case.


author: MR. JUSTICE BURT

text:
    Hugh Henry, Administrator of the Estate of Laureace L. Henry, Deceased, Plaintiff-Appellant, v. Robert Kettell Construction Corporation, a Corporation, and Donald F. Stearn, Defendants-Appellees.
    Gen. No. 66-55.
    Second District.
    April 24, 1967.

      Corrigan and Mackay, of Wheaton, for appellant.
    Pope joy, Bowman, Unverzagt and Nelson, of Wheaton, for appellees.
   MR. JUSTICE BURT

delivered the opinion of the court.

Plaintiff administrator brought this suit against Robert Kettell Construction Corporation and Donald Stearn, its employee, for wrongful death due to the alleged negligence of the defendants, causing the death of a three-year-old child, Laureace Henry, on September 18, 1961, when she was crushed to death by a truck of the defendant’s corporation, driven by the defendant Donald Stearn. She had been playing on an unfenced premises improved with a newly constructed house and used by the defendant corporation as a storage warehouse and contractor’s equipment yard. The complaint is based solely on the theory of “attractive nuisance” and it is necessary to describe the premises and surrounding circumstances in more than usual detail for an understanding of this case.

The deceased had always lived with her parents in suburban areas much like the area of her home. Robert Kettell, the owner of the Robert Kettell Construction Corporation testified that about a dozen children under the age of ten lived within a block of the premises and that possibly forty children lived within a two-block area of the premises. He said it was an area where there were young married couples with children.

The house was located on the southeast corner of Arboretum Road and Hackberry Lane in a residential area of DuPage County. The premises consisted of three lots facing north towards Hackberry Lane; the corner or westerly lot was vacant; the middle lot had a residence on it which, between the time of its erection on April 1, 1961, and the date of the accident on September 18, 1961, was used as a storage warehouse.

A dirt driveway led northeasterly from the front door of the house to Hackberry Lane. Ruts caused by the tires of vehicles driven to and from the front door were three to four inches deep and Robert Kettell described the driveway as “fairly heavily rutted.” The carport on the east side of the house was used to house contractor’s equipment being repaired or maintained. There was a dirt pile in about the center of the lot probably twenty feet long, ten feet wide and seven to eight feet high covered with weeds and it was possible to back a truck between the front door of the house and the dirt pile. There was also a dirt pile in the rear yard with a diameter of twenty feet and a height of a little over four feet. There were weeds on the premises including the dirt piles. This was all shown in photographs in evidence.

The next or most easterly lot was used for the storage of contractor’s equipment by the corporate defendant and by Earth Movers Inc., a corporation owned by Kettell. Most of its surface was covered with gravel so that the heavy equipment would not sink into the ground; there was a semitrailer, possibly thirty feet long and twelve feet high, parked on the eastern portion; and at the northern end there was a water faucet projecting about two feet out of the ground which Robert Kettell said was probably installed in 1960. Children would stop and drink there and play with the water; due south of the water faucet there were two round portable tanks, five feet long and three feet in diameter, of two hundred fifty-gallon capacity, standing off the ground on six or seven foot tripod legs; one was used for the storage of gasoline and one for oil; from time to time during the day there were automobiles parked there by the heavy equipment operators.

On September 18, 1961, a sunny autumn day, the minor decedent had played with her brother Dana age 5 and Keith Berland age 4 at the eastern end of the Henry premises from 2:80 p. m. until shortly after 4:00 p. m. At that time the decedent’s mother decided to take Scott, her one-year-old son, for a walk but the three were not interested in going with her.

The mother was not going to a prearranged place but thought that if Mrs. Berland, an adjacent neighbor, were outside or not busy she would visit her. The Berland home was south of the Henry home, separated from it by three vacant lots. They walked to the Berland home and Mrs. Henry was standing in the kitchen when she learned of the fatal injuries sustained by the minor decedent.

The mother went directly to the house in question and found the minor decedent lying face down in the rutted driveway in front of the house.

She was not moving or making any sound and there was considerable blood around her head. The mother called her name several times but there was no answer; she checked her breathing but found none. A neighbor took them to a doctor, who pronounced the child dead.

The defendant, Donald F. Stearn, testified that he was employed by the corporate defendant as a working foreman on September 18, 1961. He had worked on the construction of the house. On “many” occasions he saw children on the premises, but never more than ten at a time. When he saw them he would “shag” them off the property as many times as necessary. Neither Mr. Kettell nor any superior of Steam’s ever gave any specific instruction what to do with children found on the premises. Robert Kettell, the owner of the defendant Corporation, testified that no instructions were ever given to fence or barricade the premises in question.

On the day in question Stearn drove to the warehouse in a red three-quarter ton Ford pickup truck owned by the corporation. When Stearn was seated behind the driver’s wheel, he did not know how high his head was from the ground. He was six feet seven and one-half inches tall. The hood extended about five feet in front of him and was about four or five feet above the ground; there was an area in front and to the right of the right front fender where he couldn’t see the ground, but he had no idea of the size of the blind spot.

He entered the warehouse premises from Hackberry Lane and made a left turn to the east, so that he could back the truck to the front of the house. Then he observed two boys with bicycles to the south of the truck and two younger boys playing around the dirt pile at the front of the house.

He backed the truck within three to five feet of the front door, removed a sump pump from the truck and placed it in the house. He believed that the two older boys rode away during this time. When he came out of the warehouse the two younger boys were in the same area and he told them to stay away.

Stearn got into the truck by walking along the left side and getting in the driver’s side. He admitted that he did not look around the area of the truck to see if the other children were in its immediate vicinity. Before driving off he did not look to the right or towards the carport because, “I did not feel there was any necessity to.” He drove home and learned later that the minor decedent had been killed.

Keith Berland, the neighbor boy with whom the minor decedent had been playing, testified that only Laureace Henry, Dana Henry, and he were playing on the premises and that there were no older boys present. Keith asked Stearn what he came for and he said for supplies; Stearn did not tell them to get off the dirt pile; “all the men used to let us play there.”

When Stearn was ready to climb in he said to the boys, “Go away from the truck while I pull out now.” At that time Laureace was standing at the other side of the driveway about three or four feet away from the side of the truck. Dana Henry called Laureace over and the truck pulled out when she started to run. She got about three feet when the truck started to pull out. The truck came out a little faster and then she was hit by the front wheel and the back wheel missed her.

George Anonich testified that he was a general contractor engaged for thirteen years in residential and commercial construction. As a result of his inspection of the house and yard on October 12, 1965, he concluded that a snow fence would suffice to prevent a three-year-old child from coming on the premises in question.

He said it was the same type of fence seen along highways with slats an inch and a half to two inches wide and four or four and a half feet high interwoven with wire to keep the slats together. They would be affixed to steel posts about every ten feet and would be reusable or salvageable after use at a given location.

He was familiar with the usual and customary charges in DuPage County on September 18, 1961, for the erection of fencing of this type and estimated that it would cost approximately $290 to erect the fence around the comer lot and the lot on which the house stood, or $255 to fence one and a half lots.

He had occasion to erect fences around ten or fifteen residences where he did not enclose the entire premises.

He was familiar with the general custom and practice of house builders in DuPage County. He said he did not put up a fence every time he built a home, just in situations where it was required.

In the Circuit Court, the third amended complaint was stricken for failure to state a cause of action, but this court reversed, in the case of Henry v. Robert Kettell Const. Corp., 44 Ill App2d 356, 194 NE2d 535 (1963), holding that the complaint, containing substantially the same allegations as are set forth above, did state a cause of action, and further held, at page 360, that “Whether or not the partially erected residence with the construction equipment thereon, the pile of top soil in the rear and front of the residence, the construction equipment on the premises or the water faucet located thereon were sufficiently attractive to allure and attract children onto the premises to play and whether or not the defendants knew or should have known that children were being attracted to the premises presented questions of fact for the jury. Likewise, whether or not the defendant should have anticipated the probability of injuries to children upon said premises, and whether the defendants were negligent in the operation of their vehicle upon said premises which resulted in the injury and death of the decedent were all matters for determination by the jury. Kahn v. James Burton Co., supra; Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98.”

The case was then submitted to a jury and resulted in not guilty verdicts as to both defendants, and plaintiff now appeals, claiming the verdicts were against the manifest weight of the evidence and that error was committed in the giving and refusal of two instructions.

The plaintiff relies upon the principles set forth in the leading case of Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955), which holds that where the owner or persons in possession of premises knows or should know that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land which is likely to cause injury to them because by reason of youth they are incapable of appreciating the risks involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children there is a duty on the owner or other persons in control of the premises to exercise due care to remedy the condition or protect the children from injury resulting from it.

In the Kahn case the salient facts were these: Jacob A. Krieger and his wife owned land in the City of Chicago upon which James Burton Company, a contractor, was erecting a two-story home for them. The defendant Maikov Lumber Company piled lumber four and one-half feet high, six feet wide, weighing seven or eight tons on the job site in the usual and customary manner which did not include bracing; there were two piles of lumber, the ends of which came together in a manner resembling a boat. On prior occasions children had played on a mound of dirt thrown up by the masonry contractor. The eleven-year-old plaintiff had never played on the lot before the time that he and a companion went upon the piled lumber on the day in question. The minor climbed up the pile of lumber and while playing on it the lumber toppled, causing the minor to fall and some of the heavier planks fell on him inflicting injury.

The trial court directed a verdict for the Kriegers, the owners, but entered judgment on the jury’s verdict in the amount of $20,000 against Burton, the contractor, and Maikov, the lumber supplier. The Appellate Court reversed the trial court with directions to enter judgment for the two remaining defendants, holding them not responsible as a matter of law. The Supreme Court granted a petition for leave to appeal and reversed the Appellate Court and remanded the case to the Appellate Court with directions to pass upon other assignments of error. The Appellate Court thereupon sustained the trial court.

The Supreme Court in its opinion said at page 621:

“In the case at bar the questions whether the lumber was so piled as to create an unreasonable danger to children playing thereon, and whether it was so attractive to children as to suggest the probability that children would climb onto it, were questions for the jury under the circumstances shown in the record.”

As brought out by this case and subsequent cases the test to be applied is whether or not the party in possession and control of property, in the exercise of ordinary care, could reasonably have anticipated the likelihood that children would be attracted to the premises and injured by playing with or around the condition existing on the premises. The elements essential to base liability upon one in possession or control are: (1) that a condition dangerous to children existed on the premises; (2) that the defendant knew or should have known of the dangerous condition; (3) that defendant failed to correct the dangerous condition or to protect children from the danger; (4) that the dangerous condition caused the injury; and (5) that damages were sustained as a result thereof. Andrews v. General Contracting Co., 37 Ill App2d 131, 135, 185 NE2d 354 (1962).

In the case at bar, defendants contend that the jury was warranted in finding no dangerous condition or agency existing on the premises, and that there was no evidence from which it could reasonably be concluded that defendant’s motor vehicle in and of itself was a “dangerous condition” or agency. Defendant also argued that there was no evidence in the case at bar that the defendant Stearn operated the vehicle in any other manner than a reasonably prudent man would under similar circumstances. He did not see the child around the vehicle and all those whom he did see he waved away.

In the case of Schlatter v. City of Peoria, 309 Ill App 636, 33 NE2d 730 (1941) the court stated at page 638:

“Motor vehicles are the common method of transportation, and to say that they constitute such an allurement to children of tender years as to give rise to the application of the doctrine of attractive nuisance, when the motor vehicle is in use, is not warranted.”

An inspection of the photographs in the record shows the presence of the piles of dirt, the water fountain, the partially completed residence and the contractor’s equipment. If these items were considered together as an attractive agency it is still a question for the jury to decide whether these items separately or together are likely to cause the injury to children.

In the case of Driscoll v. Rasmussen Corp., 35 Ill2d 74, 219 NE2d 483 (1966), the court pointed out at page 78 :

“Every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his actions, and a person in possession or control of premises frequented by small children has an obligation not to maintain conditions which are dangerous or hazardous to them in view of the attendant circumstances. See Kahn v. James Burton Co., 5 Ill2d 614. But he is not an insurer of their safety. The general rule is that liability must be based on some fault. The injury must be the natural and probable result of a negligent act or condition and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence. An injury is not actionable that could not have been foreseen or reasonably anticipated as its probable consequence and that would not have resulted had not some new and independent cause intervened to produce it.”

Other cases following the rule in Kahn are: Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98 (1960); Lance v. Senior, 66 Ill App2d 41, 45, 213 NE2d 616 (1966).

In the view of this court, as indicated in the prior appeal, the question of liability here was for the jury and the jury has rendered its verdict. It is the opinion of this court that the verdict should not be set aside merely because the jury could have found differently or because this court felt that other conclusions would be more reasonable. (Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847 (1950).)

The trial court heard the evidence, observed the witnesses, considered the motions and refused to set aside the verdicts. (Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 170 NE2d 635 (1960); Green v. Smith, 59 Ill App2d 279, 284, 207 NE2d 169 (1965).) It is the opinion of the court that the verdicts are not contrary to the manifest weight of the evidence.

Plaintiff complains of the giving of defendants’ instruction 5A which reads as follows:

“If you find that the premises owned by Robert Kettell Construction Corporation did not constitute an attractive nuisance, then Robert Kettell Construction Corporation owes no duty to a trespasser other than not to wilfully or wantonly cause the trespasser injury unless his presence on the premises is either known or from facts and circumstances should reasonably have been anticipated and then, if the owner knows or from the facts known to it should reasonably anticipate the presence of the trespasser in a place of danger, the owner is under a duty to use ordinary care not to injure the trespasser.
“You are further instructed that a trespasser is a person who goes upon the premises of another without permission or invitation.”

Any instructions to which objection is made must be objected to specifically in the trial court (Allen v. Howard Bowl, Inc., 61 Ill App2d 314, 210 NE2d 342 (1965); Wright v. Callaghan, 50 Ill App2d 157, 162-163, 200 NE2d 56 (1964)).

During the conference on instructions here, defendants’ instructions numbered 5 through 8, on the duty of a property owner to a trespasser were discussed and withdrawn.

The record then shows the following colloquy:

“Mr. Unverzagt: 5 through 8 we will withdraw.
“The Court: 5 through 8, yes.
“Mr. Unverzagt: Yes, 5, 6, 7 and 8, your Honor.
“The Court: You depend pretty much on your theory of the attractive nuisance; that is the basis, isn’t it?
“Mr. Mackay: Yes, that is correct.
“The Court: Then, do you actually object to those? The duplication, that is out.
“Mr. Mackay: Let me think a moment.
“The Court: What about wilfully and wantonly, do we want to get that in, wilful and wanton?
“Mr. Mackay: To an adult trespasser it is, yes. Let me take a couple of sips of coffee and look this over. I will consent to the giving of this instruction.
“The Court: You will ?
“Mr. Mackay: Yes.
“Mr. Unverzagt: I will have it typed. That will be Defendants’ Instruction No. 5-A.”

Counsel for plaintiff thus participated in the discussions and in the drafting of Instruction 5-A, and made no further comments or objections. This is not sufficiently specific to be considered a valid objection, and actually indicates an acquiescence in the giving of the instruction. This objection to defendants’ Instruction 5-A is therefore not well taken.

Plaintiff also objects to the refusal of the court to give plaintiff’s Instruction Number 12 which reads as follows:

“Contributory negligence of the parents is not an issue in this ease.”

This would have had the effect of directing a verdict on this issue. Proximate contributory negligence of the parents will bar recovery in an action for the wrongful death of a child. Ohnesorge v. Chicago City Ry. Co., 259 Ill 424, 102 NE 819 (1913); Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill 38, 141 NE 392; Crutchfield v. Meyer, 414 Ill 210, 111 NE2d 142.

In the case of Driscoll v. Rasmussen Corp., supra, the Supreme Court, at page 79, said: “Responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. Others can be held responsible for injuries only if they are at fault under some recognized theory of liability.”

Whether the mother was negligent in allowing her three-year-old child to play around the premises in question attended only by two small children aged 4 and 5 was a question properly submitted to the jury. The court properly refused to give plaintiff’s Instruction Number 12.

We do not find errors in this record which would justify reversal and accordingly the judgment of the Circuit Court is affirmed.

Judgment affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: JUSTICE CORYN.

text:
    Clarence W. Shoemaker, Plaintiff-Appellant, v. Blue Shield Medical-Surgical Plan of the Illinois Medical Service, Defendant-Appellee.
    Gen. No. 66-109.
    Third District.
    April 24, 1967.
    Rehearing denied May 17,1967.

      Clarence W. Shoemaker, pro se, of Alledo, appellant; Reidy, Katz, McAndrews, Durkee & Telleen, of Rock Island, for appellee.
   Opinion by

JUSTICE CORYN.

Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Leonard B. Rhodes, Plaintiff-Appellee, v. Marie M. Rhodes, Defendant-Appellant.
    Gen. No. 66-110.
    Second District.
    April 24, 1967.

      Jurco, Damisch & Sinson, of Chicago, and Carbary, Carbary & Chapski, of Elgin, for appellant.
    Reid, Ochsenschlager, Murphy and Hupp, and Stephen J. Mrkvicka, of Aurora, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This case originated as a divorce action wherein Leonard B. Bhodes was plaintiff and Marie M. Bhodes, defendant. During the course of the litigation, the defendant filed a separate maintenance suit in the Circuit Court of Cook County, which suit was transferred to the Sixteenth Judicial Circuit, Kane County, where the divorce action was pending.

The divorce proceeding was set for trial on March 14, 1966. Before it was called, the parties met outside of the courtroom and attempted to reach a verbal settlement as to their property rights, and apparently believed that they had done so. Counsel for the plaintiff, in the presence of defendant’s counsel, then advised the court that an agreement had been reached, asked the court to continue the matter, and stated: “We will work it out within the next week.” He further related that the case would be dismissed, and that all that the parties sought to accomplish was a settlement of their property rights.

The judge, before leaving the courtroom, asked that plaintiff’s counsel dictate the terms of the agreement to the court reporter. Such counsel, with some assistance from defendant’s counsel, then attempted to dictate the matters which said parties had agreed upon. The parties, apparently, were not present and the statement which was dictated to the court reporter, was essentially as follows:

“The pending lawsuit will be dismissed by stipulation between the parties without prejudice to either party filing an additional suit or subsequent suit should they ever elect to do so.
“However, we have agreed that we will settle the property rights, namely, all right, title, and interest which Mr. Bhodes might have in the property of Mrs. Bhodes will be relinquished by him, as will any rights he may have for support or alimony from her. Likewise, Mrs. Rhodes will relinquish any such similar interest in his property or any obligations for support resulting from the marriage.
“There was one exception to this, however. The agreement is to expressly contain a stipulation that she is not waiving any right, title, or interest which she might have by virtue of the Social Security Laws of the United States of America.
“In consideration of this, Mr. Rhodes is to pay to Mrs. Rhodes in full settlement, including his share of any attorneys’ fees which she might have incurred, or expenses, or costs, the amount of $13,500.00 and agrees to and will execute any documents requested by them which would convey to her any interest in any property which she now owns which was her own and exclusive of anything she might have obtained of this marriage upon request. This would include any property in which she might have an interest as well as property in which she does have an interest.
“Mrs. Rhodes in return will execute a quitclaim deed to any real estate now owned by Mr. Rhodes alone or in joint tenancy with her. She will also convey to him all of her interest in any stock certificates which are now standing in their joint names or have in the past stood in their joint names.”

Thereafter, the plaintiff submitted to the defendant a proposed written agreement embodying the terms of the oral agreement, as the plaintiff envisioned them. The defendant refused to sign the instrument on the ground that it did not provide for her the protection which had been agreed upon relative to her continued receipt of social security benefits.

The plaintiff then filed an amendment to his second amended complaint alleging that the parties had arrived at a settlement agreement; that its provisions were dictated to the court reporter, and a copy of parts of the “report of proceedings” containing this dictation was attached to the amended complaint; and that the plaintiff was ready and willing to perform said agreement, but that the defendant had failed and refused to do so. The plaintiff prayed for specific performance of this agreement.

The defendant answered this amendment, admitted that the parties had arrived at a settlement, and stated that under the terms thereof, she was to continue to receive the social security benefits which she was presently receiving, and which would result in a benefit to her during her lifetime of $50,000, but that the plaintiff refused to insert in the agreement certain necessary provisions to assure to her the continued receipt of such benefits. She further asserted, on information and belief, that the purported settlement agreement was a fraud and a sham in that, as soon as she conveyed certain property to the plaintiff pursuant to the terms of the written agreement, he intended then to immediately seek a decree of divorce; and that such decree would terminate the defendant’s social security benefits.

The plaintiff, pursuant to section 45(5) of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 45(5)), moved for a judgment on the pleadings relative to the property settlement agreement. The trial court granted the plaintiff’s motion and ordered the defendant to sign the written agreement, which, according to the trial court, embodied the terms of the dictated property settlement agreement. This written agreement, which the court ordered the defendant to sign at that time, had not been made a part of any of the pleadings.

The defendant contends that the trial court erred in granting judgment on the pleadings without the benefit of evidence; that no final or binding agreement had been reached; that the defense of fraud was admitted for the purpose of plaintiff’s motion; and that the Circuit Court of Cook County erred in transferring the separate maintenance action.

It is well-settled that the court may consider only those allegations contained in the motion for judgment on the pleadings which are admitted by the other party. A. A. Erickson Bros., Inc. v. Jenkins, 41 Ill App2d 180, 188, 189, 190 NE2d 383 (1963); Dryz v. Bol, 19 Ill App2d 406, 409, 153 NE2d 859 (1958). All well-pleaded facts and all fair inferences which can be drawn from the other litigant’s pleadings are taken as admitted by the moving party. Schmidt v. Landfield, 20 Ill2d 89, 90, 169 NE2d 229 (1960); A. A. Erickson Bros., Inc. v. Jenkins, supra; Dryz v. Bol, supra. Where the pleadings put in issue one or more material facts, under the foregoing rules, evidence must then be taken to resolve such issue or issues of fact, and a judgment may not be entered on the pleadings. Thillens, Inc. v. Hodge, 2 Ill2d 45, 57, 116 NE2d 886 (1954); Minor v. Universal C. I. T. Credit Corp., 27 Ill App2d 330, 332, 170 NE2d 5 (1960).

The written agreement which the trial court ordered the parties to execute was substantially more precise and detailed than the alleged oral agreement set forth in the amendment to the complaint. Also, it contained additional items, such as the provisions that each party had been fully informed of the wealth, income and estate of the other and the value thereof; that the terms of the agreement may be incorporated into any decree of divorce which might thereafter be entered in favor of either of the parties; that nothing in the agreement should be construed to affect, limit or terminate the rights of either of the parties to any benefits to which they might be entitled under the Social Security provisions of the statutes of the United States; and that it is anticipated that the defendant shall continue to receive such benefits as long as the plaintiff and the defendant are married.

It may well be that these provisions indicated the intent of the parties, who may have expressly agreed relative to them prior to entering the courtroom. However, these provisions were not a part of the dictated agreement, and such agreement under the allegations of the amendment to the complaint, was the negotiated settlement agreement.

The order of the trial court is patently erroneous in that it specifically enforces an agreement which is broader and more detailed than that alleged in the amendment to the complaint; yet, the judgment purports to be based solely on the dictated agreement. If the judgment on the pleadings was otherwise proper, it would still be erroneous in this respect. See: Park Ave. Lumber v. Nils A. Hofverberg, Inc., 76 Ill App2d 334, 344, 345, 222 NE2d 49 (1966).

Under the facts of this case, a judgment on the pleadings was not appropriate in any event. The real dispute between the parties with reference to the settlement agreement, was the nature and extent of the social security benefits which the defendant was to receive. Obviously, these benefits were of special concern to her. The plaintiff contended that the dictated agreement, as well as the written, provided that the social security benefits were to continue only as long as the parties remained married. The defendant’s answer asserted that something more was agreed to by the parties with regard to the social security benefits. It is a fair inference from the defendant’s pleadings that she was insisting that she be guaranteed, in some manner, that she would continue to receive an amount equal to her social security benefits, whether or not the parties subsequently were divorced; and that she did not waive this right under the dictated agreement. We believe that the defendant is entitled to introduce such relevant evidence as she may have to support her contention in this respect.

The plaintiff’s interpretation of the agreement relative to social security benefits gives nothing to the defendant which she would not have been entitled to continue to receive had there been no settlement agreement between the parties. The record indicates that without any agreement, the defendant would continue to receive the benefits she previously had received until the time when one of the parties obtained a divorce. The court ordered the defendant to sign the written agreement which was attached to said order; however, the plaintiff’s amendment, which sought specific performance, was based on the dictated agreement. Under the plaintiff’s version of the dictated or negotiated agreement relative to social security benefits, as expressed in the written agreement enforced by the court, the following words from the dictated agreement: “The agreement is to expressly contain a stipulation that she (the defendant) is not waiving any right, title or interest which she might have by virtue of the Social Security Laws of the United States of America,” have been given a meaning far different from that asserted by the defendant. Each party is entitled to introduce relevant evidence to support his or her contention relative to the meaning of the language used in the dictated statement pertaining to the defendant’s social security benefits. If the evidence establishes that the parties did make a final agreement, then their intention should be determined therefrom. However, previous agreements, negotiations and circumstances may be considered in determining the meaning of specific words and clauses. Martindell v. Lake Shore Nat. Bank, 15 Ill2d 272, 283, 154 NE2d 683 (1958); Coney v. Rockford Life Ins. Co., 67 Ill App2d 395, 400, 214 NE2d 1 (1966).

The defendant’s answer was sufficient to raise the following material issues of fact: whether there was a meeting of the minds of the litigants in the witness room, where the agreement supposedly was reached; whether the summary thereof dictated by their counsel to the court reporter, in their absence, accurately reflected what had been agreed to, if there was, in fact, an agreement; and if there was an agreement, what, in fact, was agreed to with respect to the social security benefits. Relevant evidence would give the court an adequate basis for the determination of such issues, and in event the evidence should establish the existence of a definite contract, the court could then determine whether the diversity of opinion was occasioned by the decision of either of the parties that what he or she had agreed to had been unwisely done.

Since the defendant’s answer adequately raises an issue of fact as to what was agreed to by the parties in their conference, the judgment of the trial court is reversed and the cause is remanded with directions to overrule plaintiff’s motion for a judgment on the pleadings and for further proceedings herein on the merits of the issues thus raised.

We have examined the record and find no merit in the defendant’s contention that the Circuit Court of Cook County erred in transferring the separate maintenance action to the Sixteenth Judicial Circuit, Kane County, where the divorce action was pending.

The defendant has suggested that other valid legal defenses were raised by her answer. In view of our holding, we have not considered such defenses. She also has raised other theories, as the basis for denying plaintiff’s right to the relief sought, which were not presented in her answer to the court below and which we have not considered. Bremer v. Bremer, 4 Ill2d 190, 192, 122 NE2d 794 (1954); McMillen v. Rydbom, 56 Ill App2d 14, 28, 205 NE2d 813 (1965).

The validity of the dictated agreement was not questioned in the trial court. However, it provided for the dismissal of the pending lawsuit, which ostensibly included both the divorce and separate maintenance actions; and it further provided that each party litigant relinquished all right to support or alimony from the other.

While a husband and wife may make a valid agreement with respect to mutual property rights or for the settlement of claims for alimony or support, such agreement is against public policy where it attempts to relieve the husband from his legal obligation to support his wife. Illinois cases have consistently held that such provision renders the agreement unenforceable. Likewise, the purpose which motivated the agreement may render it void as against public policy. Berge v. Berge, 366 Ill 228, 230, 231, 8 NE2d 623 (1937); Vock v. Vock, 365 Ill 432, 434, 435, 6 NE2d 843 (1937); VanKoten v. VanKoten, 323 Ill 323, 326, 327, 154 NE 146 (1926); Henderson v. Henderson, 290 Ill App 448, 456-461 incl., 8 NE2d 545 (1937). Also see: Laleman v. Crombez, 6 Ill2d 194, 196-200 incl., 127 NE2d 489 (1955). Upon remandment, this question should receive the attention and consideration of the court and the parties.

Accordingly, the judgment is reversed and remanded pursuant to the directions above stated.

Reversed and remanded with directions.

ABRAHAMSON and MORAN, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Larry L. Russell, as Administrator of the Estates of Robert Harold Russell and Helen G. Russell, Both Deceased, Plaintiff-Appellant, v. Kenneth Rowe, Administrator of the Estate of Eleanor Rowe, Deceased, Defendant-Appellee.
    Gen. No. 66-126.
    Second District.
    April 24, 1967.
    Rehearing denied and opinion modified June 8, 1967.

      Bert P. Snow, of Freeport, for appellant.
    Robert K. Clark, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Stephenson County. The action was brought to recover damages for the deaths of plaintiff’s father and mother, occasioned by the alleged negligence of Eleanor Rowe, the defendant administrator’s intestate. At the first trial a jury rendered a verdict for the defendant, which verdict was set aside by the trial court on the basis that it was contrary to the manifest weight of the evidence. An order was entered for a new trial. At the second trial a jury again rendered a verdict for the defendant. The court entered judgment on the verdict, denied plaintiff’s post-trial motion for judgment for plaintiff notwithstanding the verdict and denied a new trial.

The accident occurred on January 2, 1965, at about 9:30 a. m. on a rural blacktop road about two miles northwest of the village of Lena in the direction of Wad-dams Grove, Illinois. The accident occurred about 540 feet northwest of an intersection called Five Corners. The weather on the day of the accident was somewhat overcast. The witnesses variously said that the road was icy in patches; that it had ice along the edges and was wet in the middle; and, that sections of it were iced over.

The road is approximately twenty feet in width and is generally straight and level in the area where the accident occurred. On the morning in question Robert Russell and his wife, Helen, were driving southeasterly. Eleanor Rowe was proceeding northwesterly on the road in question. As she proceeded in a northwesterly direction, another car ahead of her was being driven by a witness, Lloyd Haeft. He testified that he noticed Eleanor’s car travelling about five or six car lengths behind him. When he reached the intersection of Five Corners he slowed down and turned off to his right. Eleanor’s car apparently had been following him from Lena and presumably was travelling at the same rate of speed that he was driving, which was 50 miles per hour. Haeft proceeded about % mile on the gravel road when he happened to look over his shoulder and saw two cars approaching each other on the blacktop road. They were about three or four car lengths apart. He did not know the speed of the cars and was not, from his position, able to say what side of the road the cars were on when they collided. After the accident no tire or skid marks were reported.

Pictures of the scene and testimony of the witnesses show that after the accident both cars were located to the left of the center of the road, being the proper lane for the Russell car. Both vehicles were heavily damaged on the front, the thrust of the impact appearing on the left front of both cars. There were no eyewitnesses to the impact and testimony on the habits of due care for both deceased drivers was received. The testimony on behalf of the plaintiff, among other things, revealed that he was not a slow driver on ice or wet pavement; that under such circumstances he drove around 40 to 45 miles per hour, but he never used the brakes on ice; and, that “he handled the car under power” and “was a careful driver on wet, icy pavements.”

Plaintiff’s theory is that where the evidence established beyond a reasonable doubt that the collision occurred completely on plaintiff’s intestate’s side of the road, the plaintiff has made out a prima facie case of negligence and the defendant, having failed to explain how his intestate was on the wrong side of the road without negligence on her part, it was the duty of the trial court to direct a verdict for plaintiff. In support of his position, plaintiff cites numerous cases, among them Calvetti v. Seipp, 70 Ill App2d 58, 62, 63, 216 NE2d 497 and Tomlinson v. Chapman, 24 Ill App2d 192, 196, 197, 164 NE2d 240. In these cases as well as in others cited by plaintiff, there is evidence that the collision of the automobiles occurred as a result of defendant’s automobile having skidded or being driven into the oncoming lane in which plaintiff’s car was located. The court has held that it was incumbent upon defendant to show that his skidding or driving across the center line into the oncoming lane was not due to defendant’s negligence. Such is not the case before us. There is no evidence indicating in which lane of traffic the initial contact of the automobiles took place.

In the first instance there is a burden upon the plaintiff in any case charging negligence to prove the negligence of the defendant by the greater weight of the evidence. The mere happening of an accident, together with the exercise of ordinary care by the plaintiff, does not of itself raise any presumption of negligence on the part of the defendant. Krump v. Highlander Ice Cream Co., 30 Ill App2d 103, 105, 173 NE2d 822; Brown v. Boyles, 27 Ill App2d 114, 124, 169 NE2d 273. The record before us does not contain the trial court’s instuctions to the jury. We must assume that the jury was properly instructed. The evidence produced either by testimony or exhibits, presented questions of fact for the jury to decide. This court will not disturb the verdict of a jury upon a question of fact, unless clearly and palpably erroneous or against the manifest weight of the evidence. Brown v. Boyles, supra, page 126. In the opinion of this court there is little evidence of negligence and certainly not such clear, indisputable evidence as would make the verdict of the jury against the manifest weight of the evidence.

When successive verdicts in the same case on substantially the same evidence are in favor of the same party reviewing courts are reluctant to disturb the verdict as contrary to the weight of the evidence. Dixon v. Montgomery Ward & Co., Inc., 8 Ill App2d 564, 132 NE2d 20 (Abst.). In the language of Brossman v. Drake Standard Mach. Works, 177 Ill App 323, at page 324, “Upon these questions of fact two juries have passed, and we are not convinced from an examination of the record that the verdict of the jury is manifestly against the weight of the evidence. We are, therefore, not authorized to set aside the verdict upon the ground that appellant was not guilty of any negligence or that appellee was guilty of contributory negligence.”

The judgment of the trial court will be affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: PRESIDING JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James J. Decesare, Defendant-Appellant.
    Gen. Nos. 51,304 and 51,305.
    First District, First Division.
    April 24, 1967.
    Thomas J. Maloney, of Chicago (Richard H. Devine, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.