author: HANNAH, J.

text:
    Wilma Louise Trtanj Jingling, Plaintiff-Appellant, v. Albert William Trtanj, Defendant-Appellee.
    Gen. No. 67-133.
    Fifth District.
    August 12, 1968.
    Rehearing denied October 4,1968.

      Dick H. Mudge, Jr., of Edwardsville, for appellant.
    Lance Callis, of Granite City, for appellee.
   HANNAH, J.

This case arises as an aftermath of a divorce proceeding awarding the custody of a one and one-half year-old baby girl (now six years old) to its mother, which custody the father now seeks to have transferred to him, on the sole grounds that the mother has moved to the State of Ohio.

The basic question here involved is to what extent shall a child be treated as a pawn subject to the vacillating of parents unwilling to accept the full responsibilities of parenthood. Two gardeners produced the tender roots of a promising new rose in the garden of life. Then they disagreed and separated, and now each seeks to have this tiny rose transplanted to his private garden. But science teaches that in order for this rose to reach its fullblown maturity and beauty it cannot be transplanted from garden to garden, but must be given permanency in location, accompanied with best of loving and tender care. In recognition of this principle the courts have consistently said:

“the paramount question as to custody of children in divorce proceedings is not what the parents wish, not who was wrong or who was right when the decree was entered dissolving the marriage, not the punishment of the father or the mother, but what is best for the child at the time the custody is fixed,” Schmidt v. Schmidt, 346 Ill App 436, 105 NE2d 117.

The determining question is whether the petitioning defendant-father has established such a change in circumstances as would render it to the best interest of the child to change its custodian. A brief outline of the case history will be helpful in reaching a conclusion.

Plaintiff and defendant were married June 25, 1960, and resided together as husband and wife in Granite City. Their domestic life was not one of continued and uninterrupted matrimonial bliss. To this marriage was born, on September 12, 1962, Julie Moore Trtanj. At the time of the child’s birth the parents were living separate and apart, the father living in Granite City, where he practiced dentistry, and the mother living with her parents in Carbondale. Later there was a temporary reconciliation, which terminated with the wife filing a complaint for divorce charging extreme and repeated cruelty. This was filed February 5, 1964, wherein plaintiff sought custody of the child, together with child support and alimony. The defendant filed a general denial.

Subsequently, on a petition by plaintiff for temporary custody and support, the court granted temporary custody and support to the plaintiff. The terms are not material to the issues here. On March 31, 1965, defendant filed a counterclaim for divorce upon the ground of desertion, to which plaintiff filed her denial. On June 8, 1965, an amended complaint for divorce was filed by plaintiff charging desertion instead of extreme and repeated cruelty. On June 15, 1965, sixteen months after the filing of the original complaint, the cause came on for trial. According to the docket entries it came on for trial on an amended complaint for separate maintenance and defendant’s counterclaim. However, no complaint for separate maintenance is included in the transcript. On April 1, 1966, another amended complaint was filed which is a duplicate of that filed June 8, 1965. Evidence was heard on behalf of both plaintiff and defendant, and the case was taken under advisement.

On June 13,1966, one year following the trial, the court entered its decree finding the equities with the plaintiff; that the defendant was guilty of wilful desertion, and that the “plaintiff is the fit and proper person to be awarded the future care, custody, education and future control of the minor child.” The court further decreed certain amounts for child support and for gross alimony to be paid by defendant, and fixed visitation privileges. Defendant’s counterclaim was denied.

On August 17, 1966, two months following the divorce, and approximately fourteen months following the trial, the plaintiff married Captain Robert Jingling, a career army officer. Captain Jingling was stationed in Japan from September 1966 until May 17, 1967, at which time he was transferred to Wright-Patterson Air Force Base, Dayton, Ohio.

One thing is especially noteworthy, that is that it is conceded by all parties and their attorneys that both the plaintiff and defendant were morally fit and competent persons to have the custody of the child. Likewise no criticism was directed against Captain Jingling.

While there had been some criticism on the part of the defendant that on one or two occasions the plaintiff had not strictly complied with the court’s visitation orders, no serious question arose until after plaintiff moved and took the child to Ohio to live with her and her husband. Prior to going to Ohio the plaintiff had petitioned the court (May 15, 1967) for leave to take the child to Ohio, and requested the court to fix a new visitation schedule. Defendant on May 29th countered with a petition to change the custody of the child to him, which he followed on June 30, 1967, with a petition for rule on plaintiff to show cause why she should not be held in contempt for removing the child from Illinois, and also petitioned to suspend payments of child support and gross alimony.

All these matters were set down for hearing on August 15, 1967. A hearing was had and on August 29, 1967 the court entered its order:

1. Modifying the decree by changing the custody of the child to the defendant with certain visitation rights to the plaintiff, and finding this to be to the best interests of the child;

2. Modifying the decree by eliminating support payments for the child.

A decree to this effect was entered September 5, 1967. Thereafter on September 7,1967, the plaintiff gave notice of appeal and perfected it. Following the perfecting of this appeal, the defendant on October 31, 1967, filed his second petition for rule upon the plaintiff to appear and show cause why she should not be deemed in contempt of court this time for removing the child beyond the jurisdiction of Illinois. On the same day the defendant also filed his petition to suspend all payments, which included gross alimony payments.

On November 16, 1967, the plaintiff filed her petition for change of venue upon the alleged ground that the trial judge was prejudiced against her, charging that in the hearing on August 29, 1967, the judge had stated in his order of that date:

“With the plaintiff remarrying shortly after the decree, it is now apparent to the court that the real trouble was that during the proceedings plaintiff had already made arrangements to remarry if and when she got her divorce,”

and on or about September 19, 1967, the judge had stated in open court, in the presence of plaintiff’s counsel “that he would find the petitioner guilty of contempt of court on the court’s own motion if she did not promptly return the child of the parties to the State of Illinois.” (Emphasis added.) This was after the appeal from the order modifying the decree.

These motions came on for consideration on November 16, 1967, at which time the court denied the plaintiff’s motion for change of venue, and without entering a rule on defendant to appear and show cause, and without a hearing being accorded the plaintiff, found the plaintiff to be in contempt of court and sentenced her to thirty days in jail and ordered mittimus to issue. At the same time the court allowed defendant’s motion to suspend all payments, including payments upon gross alimony. From these orders plaintiff has also appealed, and the two appeals have been consolidated for hearing before this court.

Our first question arises with reference to the court’s order changing the custody of the child from the mother to the father. When custody was first granted to the plaintiff by the court’s decree of June 15,1966, the court specifically found that defendant was guilty of wilful desertion, notwithstanding the “plaintiff has at all times conducted herself as a true, affectionate and dutiful wife.” The court further found that “the plaintiff is the fit and proper person to be awarded the future care, custody, education and future control of the minor child.” That finding and the decree giving custody to the mother was res judicata as to the facts which existed at the time of its entry. Nye v. Nye, 411 Ill 408, 105 NE2d 300. Our next question is, has there been any substantial change in the circumstances which render it to the best interests of the child to change its custody?

What are the changes in circumstances since the original decree? We have, so to speak, combed the record with a fine-tooth comb, and fail to find anything that reflects against the plaintiff-mother as being a fit and proper person to have the custody and care of the child. In fact this is admitted, and it is admitted she has given the child the proper care one would expect from a mother.

We do find that the plaintiff remarried fourteen months after the divorce hearing and two months after the decree was entered. However, no one points the accusing finger toward the second husband, charging there was anything about his conduct or character that would reflect against him in relation to the welfare of the child. On the contrary, it appears he is a career officer in the air force, a man of good character, who would make a good stepfather to this child. It would appear he would lend stability to the family. As for the defendant-father, it is admitted he is a successful dentist, and a fit person to have the custody of the child. However, he is unmarried, and would have to call in relatives or babysitters to care for the child during his absence at the office and while attending conventions. By necessity he is not in a position to give the child that personal care and supervision that it receives from its mother. The importance of this care is well stated by our Supreme Court, in Nye v. Nye, supra, in this language:

“It is usual in such cases, due to the tender years of the child and in consideration of its best interests, to entrust the care and custody to the mother, she being a fit and proper person to rear the child. (Citations.) The maternal affection is more active and better adapted to the care of the child. Especially is this true in the case of a minor daughter, where the care and guidance of a mother’s hand is doubly important.”

What other change in circumstance do we find ? Due to her remarriage and her husband’s profession, it becomes necessary for her to change her place of residence from time to time. This has now moved her from Carbondale, Illinois, to Dayton, Ohio. However, there is no evidence that there is anything about the community of Dayton that is any more deleterious to the health and welfare of the child than that found in Carbondale or Granite City. It is true it is further removed from the defendant’s residence, and does create some greater problems with reference to visitation privileges. This is the real difficulty and apparently is the only real basis for the defendant seeking this change. There is no attempt to charge the plaintiff with a failure to give the child proper care and nurture. She exhibited no desire or attempt to deprive defendant of his right of visitation. On the contrary, before moving to Ohio, she filed her petition on May 15, 1967, with the court asking the court’s approval of this change, and asked the court to fix and define visitation privileges for defendant to the end that he not be derived of these rights. The defendant immediately countered with his petition to change the custody. In the meantime plaintiff’s husband was transferred to Ohio. But even after plaintiff’s removal to Ohio she, on September 30th, brought the child back to visit the defendant. The defendant admits that he stopped all payments, both child support and alimony in August, 1967.

The question boils down to this, was the removal of the child to Ohio grounds for revoking plaintiff’s custody? We think not. It has been repeatedly held by our courts that such an act standing alone would not justify such action. We shall not review those cases, but will cite a few. Schmidt v. Schmidt, 346 Ill App 436, 105 NE2d 117; Wolfrum v. Wolf rum, 5 Ill App2d 471, 126 NE2d 34; Bulandr v. Bulandr, 23 Ill App2d 299,162 NE2d 585; Jayroe v. Jayroe, 58 Ill App2d 79, 206 NE2d 266. In Dokos v. Dokos, 88 Ill App2d 330, 232 NE2d 508 we find a case almost parallel on facts, and the language there used is most apropos to this case.

As previously stated, subsequent to filing the notice of appeal the defendant, on October 31st, filed two petitions, one seeking to suspend all money payments, and one for a rule on plaintiff to show cause why she should not be deemed in contempt of court for taking the child out of the State of Illinois. These were set for hearing on November 16, 1967, on which day the plaintiff filed the motion for change of venue.

No rule was entered on plaintiff to appear and show cause, and without such a rule or hearing the court proceeded to find the plaintiff in contempt and sentenced her to thirty days in jail and ordered mittimus to issue. Inasmuch as plaintiff was then beyond the jurisdiction of the court, the mittimus was not executed. This alleged contempt was not a direct contempt, and plaintiff was entitled to a hearing thereon. She was deprived of due process and the order exceeded the power of the court. Furthermore the very matter basic to the determination of the question of contempt was then pending on appeal to the Appellate Court.

On the same occasion the court denied plaintiff’s motion for change of venue. It is argued that the motion was not filed in apt time. The question of aptness in time must be measured in the light of the time the alleged prejudice was discovered. From the time of taking the appeal on September 7, the cause was dormant, so far as the trial court was concerned. It was not again before the trial court for further consideration until the filing of defendant’s petition on October 31st. We believe the motion was made in apt time. Without any extended comment, it occurs to the court that these statements, made by the trial court, after the notice of appeal, constituted a justified basis for a request for change of venue for future proceedings, and that such prayer should have been granted.

Accordingly, it is the judgment of the court that the decree modifying the original decree should be reversed and set aside in its entirety and the original custody, child support payments and gross alimony payments reinstated. It is further ordered that the defendant pay all arrearages within thirty days.

It is further ordered that the defendant shall have the custody of the minor child, Julie Moore Trtanj, from December 27th to January 2nd of each year, and for one month during the summer vacation at his home in Granite City, Illinois, the time to be agreed upon by the parties, plaintiff to deliver the child to the defendant and defendant to return the child to the plaintiff. Defendant shall also have the right of visitation to the child one weekend once each month, upon giving plaintiff not less than one week’s notice of his intent and the time of such visit. Such visitation rights shall continue until changed by an appropriate order of the Circuit Court after due notice to the parties and a hearing thereon.

It is the further order of the Court that the order finding the plaintiff in contempt of court be set aside and vacated, and that the petition of plaintiff for change of venue be allowed as to all future proceedings had herein.

Cause remanded with instructions to enter an order consistent with the views expressed in this opinion.

Judgment reversed and remanded with directions.

EBERSPACHER and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    Elmhurst National Bank, et al., Plaintiffs-Appellees, v. Iona D. Glos, et al., Defendants-Appellees; Continental Illinois National Bank and Trust Company of Chicago, as Successor Trustees, etc., Defendant-Counterplaintiff-Appellee, v. Mabelle G. Larkin, George W. Larkin, Jr., Walter Larkin, Larry Larkin, Elizabeth Glos Larkin, a Minor, Linda Katherine Larkin, a Minor, Andrew Glos Larkin, a Minor, and George Walter Larkin, a Minor, Defendants-Counterdefendants-Appellants.
    Gen. No. 67-144.
    Second District
    October 15, 1968.

      Sidley & Austin, of Chicago, for appellants.
    Wildman, Harrold, Allen & Dixon, Kirkland, Ellis, Hodson, Chaffetz & Masters, and Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago, and Thomas H. Price and Henry G. Bates, of Elmhurst, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal arises from a decision of the Circuit Court of DuPage County authorizing the Continental Illinois National Bank and Trust Company of Chicago, as Successor Trustee under a Trust Agreement referred to as Trust 266, to retain shares of its own capital stock in the trust portfolio.

It appears from the pleadings that, in 1935, one Lucy M. Glos created a certain trust known as Trust No. 266. One fund created under this trust was to be held for the benefit of Albert Glos during his lifetime and then for the benefit of his widow, Iona D. Glos, during her lifetime. The trust agreement provides that if Albert and Iona leave no descendants, the trust funds should be divided equally between two sets of contingent beneficiaries, which for the purpose of this opinion shall be referred to as the “Larkin beneficiaries” and the “Bates beneficiaries.” Albert M. Glos is deceased and his widow, Iona D. Glos, now the income beneficiary under the trust, is of advanced years. No children were born of the marriage. The instrument did not expressly allow the trustee to retain shares of its own stock.

In 1965, following the resignation of the then trustees under the trust, the Continental Illinois National Bank and Trust Company of Chicago was duly appointed as Successor Trustee. Among the assets of the trust fund, at the time Continental became successor trustee, were 3,798 shares of its own capital stock. This represented in excess of 22% of the total value of securities in the fund. The capital stock of all financial institutions owned by the fund was in excess of 61% of the total value.

Regulation 9, section 9.12 (a) issued by the Comptroller of the Currency and applicable to this situation provides :

“(a) Unless lawfully authorized by the instrument creating the relationship, or by court order or by local law, funds held by a national bank as fiduciary shall not be invested in stock or obligations of, or property acquired from, the bank or its directors, officers, or employees, or individuals with whom there exists such a connection, or organizations in which there exists such an interest, as might affect the exercise of the best judgment of the bank in acquiring the property, or in stock or obligations of, or property acquired from, affiliates of the bank or their directors, officers or employees.”

In this case, the original action was filed by the retiring trustees requesting approval of their accounts. Continental filed a counterclaim seeking instructions from the court as to whether it might properly retain its own capital stock as an asset of the trust fund.

The Larkin beneficiaries answered alleging that it was undesirable for the successor trustee to continue to hold and vote its own stock and also alleging that a disproportionate amount of the trust investments was in the hands of financial institution. Mrs. Glos and the Bates beneficiaries answered stating that they believed that a sale of Continental Bank stock would not be in the best interest of the trust.

When the matter came on for hearing the attorney representing certain of the Bates beneficiaries stated that he had available certain of his clients who were prepared to testify that they would prefer to have the Continental stock remain in the trust; that he also had available a trust officer of the Continental who was prepared to testify that the bank is extra cautious as to the conduct of a trust involving its own stock; that the amount of stock involved was but a small percentage of the entire stock of the bank and that in his opinion there would be no chance of any self interest or conflict of interest. The attorney for the Larkin interests stated that it was his position that the corpus of the trust is overly invested in the stock of financial institutions and that the trust should, in an orderly manner, divest itself of the Continental stock.

The trial court stated that he would not advise the bank as to whether or not to retain the investment of its own shares but that he would authorize the bank to keep the shares and an order was entered which provided that “Continental Illinois Bank and Trust Company of Chicago . . . may properly retain the shares of capital stock of the Continental Illinois Bank and Trust Company of Chicago presently held as an asset. . . .” This appeal is from that order.

In this court the Larkin beneficiaries contend that since there is no authority in the trust agreement for the retention of the shares and there is no authorization under State law for the retention of the shares that section 9.12(a) of the Regulations of Comptroller of the Currency requires the bank, as trustee, to divest itself of its own shares unless there is a valid court order authorizing their retention. They stipulated that had the witnesses referred to been called to testify they would have testified in accordance with the representation made by counsel and they further agree that they in no way impugn the integrity or competency of the successor trustee by their position.

It is the Larkin position that, even with a stipulation as to the testimony, there is no showing of any reason to the court to justify the retention of the shares in question and the burden of proof is on those seeking the retention of the shares.

The Bates beneficiaries, on the other hand, contend that under the Illinois “Prudent Man” statute, (Ill Rev Stats 1965, c 148, §§32 and 32.1a) the trustee is authorized to retain any type of investment provided the investment meets the “Prudent Man” test and they contend that the burden of proof is on the Larkins to offer proof as to why the shares should not be retained.

The Continental states that it is not in an adversary position in this proceeding, and is not asking permission to hold the shares but only requesting instructions and to that extent is akin to an interpleader in this proceeding.

We are presented with the question of who had the burden of proof in this proceeding. Under the inter-pleader cases, the procedure is to hear evidence on the issues made by the interpleader’s complaint and the answers thereto. Thereafter, a preliminary decree should be entered determining whether or not the interpleader is rightfully in court. It is only after this has been accomplished that the court should conduct a hearing with respect to the rights of the various defendants. In the first hearing the burden of proof is on the interpleader. City Nat. Bank & Trust Co. of Chicago v. Dunham, 306 Ill App 354, 28 NE2d 812 (1940). There is no contention made in this case that the counterclaim filed by Continental was not appropriate and the other parties answered and appeared for the hearing without any objection. This is not a true interpleader situation but we feel that Continental’s position was sufficiently presented to excuse it from any further obligations of proof.

The burden of proof therefore was on either the Bates or the Larkin interests to offer proof justifying their position.

The “Prudent Man” statute, heretofore referred to, expressly allows a trustee to retain every kind of property, real, personal or mixed and every kind of investment, so long as he exercises the judgment and care, under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs. We are of the opinion that the statute is the “local law” referred to in Regulation 9, section 9.12(a) issued by the Comptroller of the Currency, and, therefore, negates its application in the case at bar.

Having arrived at this conclusion it then necessarily follows that the burden of proof rests upon the one who claims that the trustee has imprudently retained or invested trust funds contrary to the standard set forth in the above referred to “local law.” The general rule is that a trustee is presumed to have acted in good faith and to have performed his duties under the trust. The burden of proving his breach of trust rests upon the one asserting it. First Trust Joint Stock Land Bank of Chicago v. Hickok, 367 Ill 144, 148, 10 NE2d 646 (1937). In the case at bar the Larkin beneficiaries assert that the trustee cannot lawfully retain its own stock and therefore the burden of proving such proposition rested upon them. Since the Larkin interests offered no evidence in the trial of the matter to overcome the cited presumption, they therefore failed to meet their burden of proof. Consequently, the judgment of the trial court must be affirmed.

The motion of Continental Illinois National Bank and Trust Company of Chicago to supplement the record in this cause, which was taken with the case, is allowed.

Judgment affirmed.

SEIDENFELD and DAVIS, JJ., concur.


author: MORAN, J.

text:
    Louise W. Rose, Individually, and as Co-Executor of the Estate of Clarence S. Rose, Deceased, PlaintiffAppellee, v. St. Louis Union Trust Company, Individually, as Co-Executor of the Estate of Clarence S. Rose, Deceased, and as Trustee of an Inter Vivos Trust Created by Clarence S. Rose, C. Stephen Rose, Jr., Henrietta Rose Passega, and Unknown Owners, Defendants, St. Louis Union Trust Company, etc., Defendant-Appellant.
    Gen. No. 67-99.
    Fifth District.
    August 14, 1968.
    Rehearing denied and opinion modified October 23, 1968.

      C. E. Heiligenstein and W. E. Ackermann, of Belleville, for appellant.
    Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellee.
   MORAN, J.

Plaintiff brought this case individually and as coexecutor of the estate of Clarence Rose, her husband, against St. Louis Union Trust Company in its individual capacity as coexecutor of her husband’s estate and as trustee, to set aside an inter vivos trust created by decedent. The case was tried without a jury before the Twentieth Judicial Circuit of St. Clair County, Illinois. Defendant appeals from a decree in plaintiff’s favor.

Plaintiff and Clarence Rose were married in 1927 and Clarence died testate, a resident of the State of Illinois, on February 24, 1963, at the age of 81, leaving plaintiff and two children by a prior marriage. In 1955 Mr. Rose, while a resident of Missouri, executed a will that provided his two children were to share, equally, 60% of his estate and that plaintiff was to receive the income from the remaining 40% of the estate for life, with a noncumulative right to $2,000 principal annually. Upon Mrs. Rose’s death this 40% or its residue was to be divided equally between his children.

In July 1958, Mr. Rose executed an irrevocable, inter vivos trust with defendant as trustee and transferred substantial assets into the trust. Defendant-trustee was to pay Mr. Rose the income thereon for life and upon his death divide 60% of the assets equally between his children and hold the remaining 40% in trust for his wife on much the same terms as the prior testamentary trust. In September, 1958, Clarence Rose executed a codicil to his will which excised the earlier testamentary trust for his wife and substituted a pour-over of this 40% of his estate into the living trust. The assets transferred constituted the bulk of decedent’s estate, although it is not clear from the record what property, if any, passed to his wife by joint tenancy. Defendant-trustee has made payments totaling 60% of the trust estate to decedent’s children according to the terms of the trust agreement, and has paid state and inheritance taxes computed on the basis of validity of the trust and unrenounced will and codicil, thus depriving the estate of any marital deductions.

Harry R. Ball, who had officed with decedent and had purchased decedent’s business from him, testified Mr. Rose came into their offices in the summer of 1958 and said, “I just fixed it so Lola (his wife) won’t get anything.” He went on to testify that decedent said he had checked with an attorney to see if the arrangement with St. Louis Union Trust would stand up.

Mr. William Stolle, plaintiff’s brother who lived next door to the Roses, testified he heard Mr. Rose say on several occasions to Mrs. Rose, “I am going to change my will and see that you don’t get any money. No more than just enough to get by on.” Mr. Stolle also recounted several occasions on which Mr. Rose passed out and one such occasion in 1957 on which Mr. Rose remarked, “One of these days I will pass out and that will be the end of it.”

Blanche Stolle (Mrs. William Stolle) testified much as her husband had, adding that she had heard decedent refuse to buy a new car because he did not want to leave his wife a good car. Mrs. Stolle was not present when decedent allegedly remarked about his fainting spells.

Mrs. Louise Rose testified at some length, over defendant’s objection that she was incompetent under the Illinois Dead Man Statute (Ill Rev Stats, c 51-2). She testified that she and her husband argued frequently, that he said he was going to change his will so that there would be less and less for her, and that he had fainting spells, although he was otherwise very active. Mrs. Rose generally confirmed defendant’s evidence that Mr. Rose remained active in business until very late in his life and took several long trips during his later years, traveling twice to Europe and once to Florida.

Plaintiff introduced a series of correspondence between decedent and defendant and defendant’s intraoffice memos indicating Mr. Rose retained some control of the trust corpus contrary to the terms of the trust, and plaintiff argued that decedent used defendant as an agent and did not relinquish control. A vice-president of St. Louis Union Trust Company, Mr. Leroy Ozment, testified the transactions were instances of courtesy consultation which was a custom of the trust business and a necessary incident thereof if good customer relations are to be maintained.

The trust was negotiated and executed in St. Louis, Missouri, and was administered in Missouri by defendant, a Missouri corporation with its principal place of business in Missouri. The trust corpus was kept in Missouri and the trust agreement used Missouri law to determine rights to the corpus should the grantor die without his wife or children surviving him. Plaintiff alleged that Missouri law governed the trust’s validity and the case was tried and determined on this basis.

The trial court has made 45 findings of law and fact upon which it rendered its decree finding the trust was voidable as a testamentary disposition effected without the formalities of a will and as a fraud on the marital rights of Mrs. Rose. As a result, the decree ordered the defendant, St. Louis Union Trust Company, to pay over to the coexecutors all of the entrusted property, or its equivalent in values as of the date of the death of Clarence S. Rose, plus interest at 5% per annum from that date. The court also ordered that since plaintiff’s attorneys had recovered assets for the estate, and the testamentary scheme of decedent was ambiguous and required judicial construction, that the probate division should allow reasonable attorney fees out of the total sum recovered for the estate! We decline to pass upon the propriety of each of the specific findings since many of them become immaterial and premature in the light of this opinion, and will be obviated by compliance by the lower courts with the holdings and directions herein contained. We therefore affirm only those findings that are consistent with this opinion and disapprove the remainder.

Appellant contends the trust was not voidable for either reason under the law of Missouri. The basis of voidability is, of course, important for if the trust is voidable because it is subject to and fails to comply with the Statute of Wills, the entire trust is voidable; while if voidable only because it is in fraud of a surviving spouse’s rights, the trust can only be voided to the extent necessary to protect those rights. Edgar v. Fitzpatrick (Mo App), 369 SW2d 592 (1963) modified on appeal, 377 SW2d 314 (1964). Wanstrath v. Kappel, 356 Mo 210, 201 SW2d 327 (1947).

Mr. Rose irrevocably transferred title and possession of trust assets to the trustee, retaining only a life interest in the trust’s income. The trust was completely executed and irrevocable even though Mr. Rose exercised some control in managing trust investments. It is clear, therefore, that this trust was not testamentary in the sense that it was an illusory transfer to take actual effect only at death. As such, the trust is not wholly voidable for failure to comply with the statute prescribing certain formalities for wills. Restatement of the Law of Trusts, Second, § 57 (1959). To conclude the trust was not testamentary, however, does not fully answer the question for a trust may be valid for one purpose and voidable for others. Wanstrath v. Kappel, supra.

“It appears to be the rule in Missouri that a conveyance or transfer of property by a husband without consideration and with the intent and purpose to defeat his widow’s marital rights in his property, is a fraud upon such widow and she may sue in her own right and set aside such fraudulent conveyance and recover the property so fraudulently transferred to the extent of her interest therein.” 49 ALR2d 546.

Section 474.150 (1) of the 1959 Missouri Revised Statutes provides:

“Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in the estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the spouse’s share, as in the case of his election to take against the will.”

In Merz v. Tower Grove Bank & Trust Co., 344 Mo 1150, 130 SW2d 611 (1939) and in Wanstrath v. Kappel, supra, the Supreme Court of Missouri held a widow may avoid voluntary transfers of property made by her husband in immediate contemplation of death with the intent and purpose to defeat and defraud the widow of her statutory marital rights. Missouri Law, then, is concerned with two aspects of the transfer: Its timing and the intent. The Merz case also provides a listing of relevant evidence and circumstances:

“. . . In determining the intent and purpose of deceased in executing the trust we may weigh and consider all facts and circumstances in evidence. The condition of deceased’s health, his knowledge of his condition and his realization of the near approach of death, his expressions of his desire, intent and purpose, the detailed terms and provisions of the trust agreement, the percentage of his property conveyed in trust, the limitations in the trust agreement as against his wife, the form and content of his previous will, the execution of a new will contemporaneously with the execution of the trust conveyance, . . . his expressions of satisfaction with his efforts in the disposition of his property, his expectation of death, and his readiness for it; these and all other facts and circumstances in evidence were for the consideration of the Court. In determining whether or not the deceased intended to defeat and defraud respondent of her marital rights, we cannot presume a fraudulent intent, but it may be inferred when it is a legitimate deduction from all the facts and circumstances in evidence in a given case.”

An important factor in these cases is whether the surviving spouses knew the terms of the transactions. “The lack of courage to submit a matter involving mutual interest to mutual consideration is an index to the state of mind of the grantor to which the maxim that secrecy is a badge of fraud has peculiar application.” Hastings v. Hudson, 359 Mo 912, 224 SW2d 945 (1949).

Merz and Wanstrath, supra, concern unrevoked revocable trusts, not irrevocable trusts, but Missouri courts have applied the same principles to completed irrevocable transfers. Hastings v. Hudson, supra; Breashears v. Breashears, 360 Mo 1057, 232 SW2d 460. Presumably, the grantor who, in immediate contemplation of death, has set about the final disposition of his earthly goods with the intent to defraud his surviving spouse would not care if the trust were revocable or not. The right to revoke a scheme would not have much value to one in immediate contemplation of death and terming the trust irrevocable should not guarantee the scheme’s success.

With the requirements determined, the question becomes whether or not the evidence was sufficient to support the findings, and it is apparently the force of appellant’s argument that it was not. Admittedly, identical cases may not be available and contrary results may have issued from similar situations, but each case turns on its own facts and the task of this court is to determine if the particular decision is reasonable in terms of the whole evidence.

In Hastings v. Hudson, supra, suit was instituted to set aside completed transfers of both real and personal property. The trial court denied plaintiff any relief and plaintiff appealed to the Supreme Court of Missouri. The transfers were made by the wife beginning in November, 1945, and continued through 1946 and 1947. The wife died in January 1948 at the age of 81. The property transferred included that which the wife owned at the time of her marriage and that which came to her by inheritance from her family after her marriage.

The wife was being treated for a heart ailment by a doctor who cautioned her about the condition which led to her death ten years later. The doctor testified that she was much concerned about the condition of her heart. In reversing the judgment of the trial court, the Supreme Court of Missouri used language which we believe pertinent to the present case:

“Viewing the case in the light of the evidence and of the actions of the parties subsequent to the transfers leads us to the conclusion that the sole purpose, as well as the idea which caused the transfers to be made, was to prevent any of the property of Mrs. Keyes from going to her husband or to the Keyes family.
“. . . We hold that the transfers made by Mrs. Keyes were made for the purpose of keeping her property in the Hudson family and thereby preventing Keyes from getting any part of it. . . . Both defendants admitted the transfers were made without the knowledge of Keyes. We are also convinced that the transfers were made in anticipation of death, as defendant’s witness Dillon testified Mrs. Keyes told the witness her health was not as good as it ‘had been and for that reason she thought best to prepare for the things that might come . . . .’ Mrs. Keyes was then seventy-nine years of age.. . .
“The marital relation involves the most unlimited trust and confidence. The conduct of each spouse enters into the life of the other with its gifts of comfort or burdens of misery. Others may deal at arm’s length, but they deal upon the standpoint of unity. The law imposes upon them no duty of suspicion or distrust but they may hang their faith upon the mutual honesty which the nature of the relation necessarily implies. To safeguard their unity of interest is the object of the laws we are now considering. It was to destroy this unity that the conveyances in issue were made. The lack of courage to submit a matter involving mutual interest to mutual consideration is an index to the state of mind of the grantor to which the maxim that secrecy is a badge of fraud has peculiar application. That the transaction calls upon equity for correction has been firmly established by the decisions of this court from which we have already quoted.” Id. at 949-950.

The evidence in the present case established the decedent was of advanced age when he executed the trust, was subject to fainting spells and had once said he eventually expected one of the fainting spells to be terminal. A very substantial part of Mr. Rose’s personal assets were transferred to the trust and the estate was encumbered with the great weight of death taxes and expenses. There was no evidence Mrs. Rose was aware of the trust’s terms or was consulted in advance concerning it. Against this background several persons testified Mr. Rose said he had fixed his will so his wife would get as little as possible.

In view of the preceding evidence and the fact that Mr. Rose’s earlier will, which Mrs. Rose could elect to take against, closely resembled the inter vivos trust she could not reject, it does not seem unreasonable for the court to conclude Mr. Rose meant what he reportedly said. Although Mr. Rose survived the execution of the trust for a considerable length of time, it is only logical that the controlling factor in determining whether the transfer was made in contemplation of death was his own appraisal of his remaining life span. There is evidence Mr. Rose expected and had reason to expect an immediate departure from this world.

Where a determination of the case depends largely upon the facts found in the record, the findings and judgment of the trial court, in chancery and non-jury cases, will not be disturbed by the reviewing court if there is any evidence in the record to support such findings, and where the testimony is contradictory, a reviewing court will not substitute its judgment as to the credibility of witnesses for that of the trial court which saw and heard the witnesses, unless the findings are manifestly against the weight of the evidence, the chancellor’s conclusions in non jury cases being entitled to the same weight as a jury verdict. Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518. Decedent’s intent and whether the transfer was in immediate contemplation of death were questions of fact for the trial court and there is no reason for disturbing its conclusions since there was an evidentiary basis for its holding.

Appellants next argue that the Illinois “Dead Man Statute” applied and that Mrs. Rose’s testimony was incompetent under that statute. Appellee answered that the Missouri “Dead Man Statute” applied, that Mrs. Rose’s testimony was admissible over insufficient objections, that Mrs. Rose’s testimony was admissible under Illinois Law, and that Mrs. Rose’s testimony was cumulative and nonpre judicial.

The trial court admitted Mrs. Rose’s testimony, but later held it was cumulative and not essential to the decision. Assuming Mrs. Rose’s testimony was incompetent, her testimony was much the same as that of the other and disinterested witnesses; and their uncontradicted testimony is that Mr. Rose said he was going to leave his wife very little. While Mrs. Rose testified extensively, there is nothing that compels the conclusion that the trial judge treated her testimony as anything other than what he held it to be. If the testimony was incompetent and its admission was error, the error was harmless. McFail v. Braden, 19 Ill2d 108, 166 NE2d 46.

However, assuming the trial court had considered the testimony of Mrs. Rose to be competent, in the view that we take of this case, its ruling would not have been error. Since we are reversing the trial court’s findings that the inter vivos trust was testamentary, this leaves only the cause of action against the defendant as trustee of the inter vivos trust. When an executor sues or is sued in other than its representative capacity as executor of the estate, the Illinois Dead Man’s Act does not bar testimony of interested persons. Michna v. May, 80 Ill App2d 281, 225 NE2d 391; Lasky v. Smith, 407 Ill 97, 94 NE2d 898. Therefore, the “Dead Man’s Act” did not apply to defendant in its capacity as trustee of the inter vivos trust.

Appellant’s argument that the beneficiaries were necessary parties is misdirected. The beneficiaries are necessary parties herein, but they are not indispensable parties; and the court has discretion in determining whether to proceed without the joinder of necessary parties. Sections 24 and 26, c 110, Ill Rev Stats 1963. Village of Lansing v. Sundstrom, 379 Ill 121, 39 NE2d 987; Anderson v. Elliott, 1 Ill App2d 448, 117 NE2d 876; Cody Trust Co. v. Hotel Clayton Co., 293 Ill App 1,12 NE2d 32. The same conclusion would follow if the beneficiaries cannot be joined, and the method suggested by appellant under section 14, chapter 110, Ill Rev Stats (1963) is inapplicable for the court had jurisdiction of only the trustee, not the trust property or trust res, and the beneficiaries were out of state and not amenable to process. Moreover, in a situation, as here, where the beneficiaries have already been paid their shares and may have to repay the trustee, it is difficult for a trustee to argue as appellant does, for appellant might have joined the beneficiaries by third-party complaint if it were possible to do so. Section 25, c 110, Ill Rev Stats (1963).

Finally, in holding the trust voidable as a fraud on Mrs. Rose’s marital rights, it must be determined what amount the appellant should pay to the estate. If Mrs. Rose’s rights as surviving spouse are to be protected, her renunciation must give her what she would have received under Illinois law had Rose died intestate and there been no trust created; it also must give her or the portion which she so receives no greater obligation for taxes, costs of administration or claims that she or her portion would have been obligated for, had Rose died intestate and no trust been created; she likewise should receive or be charged with her portion of any interim increases or decreases in the entire properties between Mr. Rose’s death and her renunciation and should also receive one-third of the net income and profits of the trust corpus and assets of Clarence Rose’s estate and be charged with any income she has received therefrom. This holding necessarily precludes allowances of interest and in the absence of any express authority, the allowance of attorney fees is also unjustified.

That portion of the trial court’s decree holding that the trust created by Clarence S. Rose was a testamentary disposition of property voidable at the option of the plaintiff is reversed, and that portion of the decree holding that the trust was a fraud of Louise Rose’s rights as a widow and thus voidable is affirmed. This cause is remanded and the trial court is directed to enter such orders as are or will be consistent herewith.

Affirmed in part, reversed in part, and remanded with directions.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    Maurice Levine, Trustee in Bankruptcy of the Estate of Laurence B. Knott, Bankrupt, Plaintiff-Appellant, v. John C. Unruh, Jr., Defendant-Appellee.
    Gen. No. 67-159.
    Second District.
    September 17, 1968.

      Ruddy, Myler & Bartsch, of Aurora, for appellant.
    Kirkland, Brady, McQueen, Martin & Callahan, of Elgin, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff brings this appeal from an order of the Circuit Court of Kane County entered September 1, 1967, that dismissed his complaint pursuant to the motion of the defendant.

On March 28, 1964, John C. Unruh, Jr. obtained an assignment to an %28 interest in a certain oil lease pertaining to property located in Ohio. On May 29, 1964, Unruh and Laurence B. Knott entered into an agreement evidenced by a short signed document entitled simply “Agreement” which recited that Unruh “guarantee to Laurence B. Knott” delivery of % of his rights in the oil lease and that Unruh “relinquish all claims for this amount as of May 1, 1964.” In consideration, Knott paid $15,000 to Unruh on the execution of the agreement and a further $15,000 in agreed installments with a final payment due on June 20, 1965. The final payment of $7,-500 was accelerated and was made on April 10,1965. The name of Knott was inserted on the original assignment on May 29 and thereafter Knott received all royalties and profits for the portion of the lease purchased by him.

On December 22, 1966, Knott was adjudicated a bankrupt pursuant to his voluntary petition in the United States District Court for the Northern District of Illinois, Eastern Division, Case No. 66 B 9763, and Maurice Levine, the plaintiff and appellant herein, was duly appointed Trustee in that cause. On May 1, 1967, Levine notified Unruh by registered mail that he was electing to declare the sale of the interest in the oil lease to Knott void pursuant to the Illinois Securities Law and requested return of the $30,000 with interest. Unruh refused to rescind the sale or return the purchase price and suit was filed by Levine on July 5,1967.

The Illinois Securities Law (Ill Rev Stats, c 121%, § 137.1 et seq., 1965) was enacted to protect the public from unscrupulous stock promoters by requiring the registration and approval of securities by the Secretary of State. A purchaser of an unregistered security may, under certain circumstances avoid the sale and recover the purchase price. Section 137.13D of the Act provides:

“No action shall be brought for relief under this Section or upon or because of any of the matters for which relief is granted by this Section after three years from the date of sale.”

The plaintiff contends that the “date of sale” as contemplated by the Act would be the date of the final installment payment of the total purchase price, April 10, 1965, and that therefore the action was commenced within the proscribed time. In support of this contention, the plaintiff relies heavily on the recent case of Silverman v. Chicago Ramada Inn, Inc., 63 Ill App2d 96, 211 NE2d 596 (1965). In that case the plaintiffs agreed to purchase certain unregistered securities in March of 1959 and made the first payment at that time. Subsequent installment payments were made on March 19, May 5 and the final payment on October 20, 1959. A suit to rescind the sale was brought in July of 1962 and was dismissed by the trial court on the finding that the plaintiffs had failed to commence the action within the three years as required by section 137.13D of the Act. The Appellate Court for the First District briefly reviewed the purpose of the Securities Act and repeated the language of earlier decisions that the Act was paternalistic in character and should be liberally construed to give meaning to the intention of the legislature to afford protection to the unwary in the sale of securities. Acting on that theory, the court concluded that any of the installment payments could be considered a “sale” as contemplated by the Act and held that the suit had been timely. However, in that case the actual transfer of the certificates was not made until the payment of the final installment in October of 1959 and the Court stated that “The final payment in October, the transfer of the stock certificates and debentures, and the passing of title at that time completed the sale and fixed the rights of the parties.”

The circumstances in the instant case differ from those in the Ramada Inn case. The “Agreement” executed May 29 recited that Unruh relinquished all of his rights to that portion of the lease sold as of May 1. The assignment originally obtained by Unruh was amended by the insertion of Knott’s name on May 29 and he collected all royalties and profits on his portion of the lease after that date. Notwithstanding the unsophisticated transfer or the fact that the balance of the purchase price was paid in installments, we conclude that the parties intended that title to % of Unruh’s interest in the lease be conveyed and the sale consummated on May 29, 1964, and that the time limitation for legal action imposed by the Act began to run on that date.

From that conclusion, we would have agreed that the suit filed in July of 1967 was vulnerable to a motion to dismiss except for the intervention of the bankruptcy adjudication on December 22, 1966. Section 11E of the Bankruptcy Act (11 USCA § 29 (e)) provides in part as follows:

“A receiver or trustee may, within two years subsequent to the date of adjudication or within such further period of time as the Federal or State law may permit, institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.”

The defendant calls attention to the distinction between an ordinary statute of limitation and special limitations on causes of action created by statute. An ordinary statute of limitations is a limitation on the remedy only since the rights exist in common law and independent of statute. A special limitation can, however, be contained within a statute that itself creates the right. In the latter case, the limitation is more than a remedial restriction but defines and limits the existence of the right itself. The distinction has long been recognized by Illinois courts. In some instances, the time limitations in statutory causes of action have been deemed conditions precedent to the right of recovery. Lowrey v. Malkowski, 20 Ill2d 280, 283, 284, 170 NE2d 147; Wilson v. Tromly, 404 Ill 307, 311, 89 NE2d 22; Fitzpatrick v. Pitcairn, 371 Ill 203, 210, 20 NE2d 280.

The defendant contends that this distinction is maintained by the Bankruptcy Act and that section 29 (e) has no application to special limitations on causes of action created by statute such as section 137.1 et seq. of the Illinois Securities Act. In support of that contention, defendant cites the case of Charlesworth v. Hipsh, Inc., 84 F2d 834 (1936) where the Federal Circuit Court of Appeals, Eighth Circuit, did indeed state that a 90-day limitation on causes of action created by the Missouri Bulk Sales Law could not be extended by any provisions of the Bankruptcy Act. However, the Charlesworth case decided that the particular bulk sales law had no application in any event and its comments on the time extensions provided by the Bankruptcy Act were dictum only.

The later case of Sproul v. Gambone, 34 F Supp 441 (1940) ruled the exact opposite from the Charlesworth case in that it holds that the 90-day special limitation contained in the Pennsylvania Bulk Sales Law was tolled by an intervening adjudication of bankruptcy pursuant to section 29(e). The Sproul decision recites the legislative history of section 29 (e) and states:

“This all leads us to the conclusion that defendant’s motion to dismiss must be denied, whether the statute of limitations bars either the right or the remedy, for as we view the law, the state statute as to limitation must yield to the requirements of bankruptcy administration.”

In the case of Dower v. Bomar, 313 F2d 596 (1963) the U. S. Court of Appeals, Fifth Circuit, considered a Florida usury statute that provided that action could “only be commenced” within two years from the date the alleged usury occurred. The Court held that the limitation was tolled by an intervening adjudication of bankruptcy by section 29(e) of the Act and rejected the defendant’s contention that section 29 did not apply to the substantive rights established in the Florida law. The court concluded that Congress intended section 29(e) to apply to both remedial and substantive limitations and that they had the constitutional power to so do. The 1966 case of United States v. Paul Hardeman, Inc. (260 F Supp 723) held that a substantive time limitation contained in the federal Miller Act (40 USC § 270 (b)) was tolled by an intervening bankruptcy and cited the Dower case as authority for the proposition that the distinction was not recognized by the Bankruptcy Act.

The case of In re Warren, 192 F Supp 801 (1961), cited by defendant, is distinguishable. It deals with paragraph (f) of section 29 of the Bankruptcy Act, the reverse side of the coin to paragraph (e) in that it provides that the time limitations of debts owed by a bankrupt are also extended by an adjudication. The Warren case held that paragraph (f) does not extend the period in which a claimant can perfect a line under a state mechanics lien law since the provision applies only to debts of the bankrupt and not to security for the debts.

There is nothing in the Bankruptcy Act to compel the interpretation of section 29(e) urged by the defendant. It is obvious that the trend of the reported decisions refutes his position. While we recognize the difference between ordinary and special limitations, we feel that section 29(e) was intended to apply to both and that herefore the limitations contained in the Illinois Securities Act were extended for an additional two years by Knott’s intervening adjudication of bankruptcy.

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


text:
    L. B. Herbst Corporation, Plaintiff-Appellant, v. Northern Illinois Corporation, Defendant-Appellee.
    Gen. No. 67-161.
    Second District.
    October 15, 1968.
    Arthur Abraham, of Chicago, for appellant.

      Castle and Burns, of DeKalb, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This suit was brought by the plaintiff, L. B. Herbst Corporation, against the defendant, Northern Illinois Corporation, under an alleged written contract between the parties. A bench trial was had and the plaintiff appeals from the court’s finding for the defendant.

The plaintiff is a commercial supplier of furnishings and fixtures and the defendant is a finance company. The controversy involves some 21 townhouse units built by Itasca Terrace, Inc. (Itasca) in DuPage County. On January 3, 1964, the defendant gave a written commitment to Itasca as follows:

“January 3,1964

“Itasca Terrace, Inc.

Room 1255

228 North LaSalle Street Chicago, Illinois

Attention: Mr. B. B. Bell, President

Gentlemen:

This letter will serve as our commitment to finance $2,200.00 per townhouse on all personal property, estimated cost to be $3,000.00. The maturity of 60 equal monthly installments for eighty-two (82) units with a minimum equity of 18%, with partial take out.

The rate is 5% % add on per year.

Material damage insurance to be included in the contract at a rate of sixty ($.60) cents per $100.00 per year. Coverage is to be all risk less exclusions on a cash value basis. Assignment of rents, excluding Marshall Savings and Loan rent assignment is to be given to Northern Illinois Corporation.

Yours very truly,

/S/ K. M. Snyder K. M. Snyder, Vice-President.

KMS/pjn

cc: L. B. Herbst & Co.

Accepted this-day of January, 1964.

By....../8/B.B. Bell

President, Itasca Terrace, Inc.”

This commitment was accepted by B. B. Bell as of the date of the letter.

On January 22, 1964, the plaintiff made a written proposal to Itasca giving some detail as to the type of furniture and fixtures to be delivered and indicating that these would be delivered for the sum of $1,732.00 per unit. Subsequently, on February 7, 1964, the following letter was executed by the President of Itasca and the Vice-President of the defendant, and was delivered to the plaintiff:

“February 7,1964

“L. B. HERBST CORPORATION 325 North Wells Street Chicago, Illinois

ITASCA TERRACE, INC. hereby agrees that, of the total NORTHERN ILLINOIS CORPORATION commitment, dated January 3,1964, L. B. HERBST CORPORATION shall be reimbursed in full at the agreed-to figure of $1,732.00 per townhouse apartment unit, plus tax, F. O. B. factory, pursuant to a proposal dated January 22, 1964.

The foregoing sum shall be paid upon approval by ITASCA TERRACE, INC. of the installation of the total furnishings within each individual townhouse apartment.

Accepted by:

NORTHERN ILLINOIS CORPORATION /S/ T, C. Courtney, Jr.

Vice-President

ITASCA TERRACE, INC.

/S/ B. B. Bell,

President”

The fixtures were delivered to Itasca and apparently held by them for about six months. Itasca did not make any of the installment payments or rent assignments to the defendant as called for under the commitment of January 3rd. Thereafter, Itasca became unable to pay the plaintiff the agreed amount and, as a result of this inability, suit was brought directly against the defendant finance company.

The only possible contract upon which the plaintiff can be relying is the letter of February 7, 1964, and in fact, the plaintiff indicates that this is the contract between the parties. The plaintiff contends that by the plain language of the letter of February 7, 1964, this defendant is bound to pay. However, we feel that the letter of commitment of January 3rd (which plaintiff claims he never saw although the letter shows a carbon copy directed to him) is essential for a proper determination of the rights of the parties hereto.

There is some uncertainty as to whether the plaintiff is relying on a theory that there is a direct contractual relationship between the parties or that the plaintiff is the third-party beneficiary of a contract between defendant and Itasca. We reach no conclusion on that question and we give the plaintiff the benefit of either theory. On either theory this court is of the view that the plaintiff cannot prevail.

Both parties argue that the meaning of the contract must be found in its language. The court agrees that that is the general rule and that it should be applied in this case. Coney v. Rockford Life Ins. Co., 67 Ill App 2d 395, 399, 214 NE2d 1 (1966) ; 3700 S. Kedzie Bldg. Corp. v. Chicago Steel Foundry Co., 20 Ill App2d, 483, 486, 156 NE2d 618 (1959) and Poorman v. Julian, 22 Ill App2d 208, 215,160 NE2d 169 (1959).

In addition, if the plaintiff is relying on a third-party beneficiary theory, then it is clear that he must take the contract as the original parties made it. If he is a beneficiary, then he is bound by all of its provisions. He cannot take those parts of the contract which favor him and reject those parts which distress him. As the Supreme Court said in Carson, Pirie, Scott & Co. v. Parrett, 346 Ill 252, 258, 178 NE 498 (1931) :

“The rule is, that the right of a third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability must affirmatively appear from the language of the instrument when properly interpreted and construed. The liability so appearing cannot be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability.”

Turning our attention now to the letter of February 7, 1964, it appears on its face that the letter was subject to various conditions. First, it adopted by reference the commitment of January 3, 1964, and second, it provided that the sum in question would be paid only upon approval by Itasca of the installation of the total furnishings within each individual apartment. The commitment of January 3,1964, required various installment payments, none of which were made. It also required an assignment of rents, which was never given to the defendant. It is clear that Itasca never approved the installation, either orally or in writing. The plaintiff argues that their very acceptance of the furnishings constitutes an approval. There is great dispute in the record as to whether or not complaints were remedied by the plaintiff. The trial court found that Itasca had not approved the installation and we are not disposed to overturn his judgment in that regard.

It is clear from the record that the defendant received none of the things to which he was entitled under either the letter of February 7, 1964, or the commitment of January 3,1964. Because of that, defendant is not bound to pay plaintiff on either of plaintiff’s theories.

The trial court was correct and the judgment is therefore affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


text:
    Bruce H. Canfield, Gordon W. Wormley, Mathias F. F. Kohl, Ida M. Brechtel, John L. Bacon, Joseph P. Berger, Miller L. Henderson, John W. Seidlin, Robert Miranda-Norris, Norris R. Dougherty, and Herbert P. Lash, d/b/a Canfield Clinic, a Partnership, Plaintiffs-Appellees, v. Victor I. Spear, Defendant-Appellant.
    Gen. No. 67-168.
    Second District.
    September 23, 1968.
    Rehearing denied October 14,1968.
    Roszkowski and Paddock, of Rockford, and Barry L. Kroll, of Park Forest, for appellant.
    Leonard C. Remencius, and Raphael E. Yalden, of Rockford, for appellees.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County. The court issued an injunction enjoining Victor I. Spear, defendant, from engaging in the practice of medicine within a radius of 25 miles from the City of Rockford for a period of three years from June 30, 1967.

The plaintiffs are 11 medical doctors associated together in a partnership known as the Canfield Clinic, having their place of business in Rockford, Illinois. None of the plaintiffs engage in the practice of dermatology as a specialty. Victor I. Spear is a 32-year-old doctor of medicine who is a Board Certified dermatologist and who limits his practice to this specialty. In May of 1965 plaintiffs brought defendant to Rockford and the parties entered into a one-year employment contract. At the end of that year a second, 15-year contract was entered into. In this contract, like the first, defendant was guaranteed a minimum yearly income as against a percentage of his billings. The contract also provided that it could be terminated by the defendant giving to plaintiffs one year’s written notice of his desire to terminate. The contract also provided:

“The associate does hereby agree that, in the event of voluntary or involuntary withdrawal from this association, he will not re-engage in the practice of medicine within three (3) years after the termination of the association with the partnership within the City of Rockford or within a radius of twenty-five (25) miles thereof.”

On November 11, 1966, defendant gave notice to certain of the plaintiffs of his resignation from the Canfield Clinic and requested that he be permitted to withdraw as of July 1, 1967. Plaintiffs offered defendant a partnership which he rejected. Plaintiffs thereupon notified defendant that he might withdraw as of July 1, 1967, but admonished defendant that they would enforce the above set forth restrictive covenant.

Dr. Spear admitted the validity of the contract. He contends that the restrictive covenant clause is unenforceable because of the removal of him, only one of four dermatologists in Winnebago County, from the community would have an adverse effect upon the public and upon him personally. He also asserted that the clinic could show no irreparable damage. Dr. Spear had never engaged in the private practice of medicine before joining Canfield Clinic in June of 1965. His first contract with the clinic provided for a minimum guarantee of $16,000 as against 45% of his billings. The first year he treated some 3,018 patients, the greater percentage of which were patients of the clinic, and had gross billings of $25,169.75. The business manager of the clinic testified that overhead averaged 50% of billings.

In June of 1966, Dr. Spear signed the 15-year contract guaranteeing him a minimum of $18,000 the first two years as against 45% of his billings, and if his billings exceeded a certain percentage he was to receive 50% of his gross billings as his compensation. During the 13 months immediately prior to his leaving the clinic, Dr. Spear had gross billings of $51,769.50, so that he earned for that period $23,081.32.

Prior to his original negotiations with the clinic, Dr. Spear had never heard of the City of Rockford, Illinois. During his negotiations, the partners told him of their plans to construct a new building to house the clinic. Within six months after signing his second contract, Dr. Spear notified two of the partners of his intention to leave the clinic and gave as his reason the fact that their building plans had been unavoidably delayed. Dr. Spear stated that he felt this delay presented a serious obstacle to his growth at a very crucial time in his practice.

Plaintiffs rely heavily upon such cases as Hicklin v. O’Brien, 11 Ill App2d 541, 138 NE2d 47, wherein a lawyer, after selling his practice in Winnebago County, was enjoined from practicing in competition with the purchaser in that county for a reasonable period, and Bauer v. Sawyer, 8 Ill2d 351, 134 NE2d 329, wherein defendant, a partner in a medical practice, agreed not to practice within Kankakee for a period of five years upon his withdrawal from the partnership and upon his withdrawal the court enforced the restrictive covenant contained in the partnership agreement. Other cases in which the court has enforced a restrictive covenant are Hursen v. Gavin, 162 Ill 377, 44 NE 735, Ryan v. Hamilton, 205 Ill 191, 68 NE 781, and Storer v. Brock, 351 Ill 643,184 NE 868.

There is in our opinion a very fundamental difference between that line of cases and the one before us. In each of those cases the promisor was in direct competition with the promisee. In each of those eases a definable consideration was given for the promise not to compete. The restrictive covenant was at the root of the basic agreement between the parties. In the case before us the Can-field Clinic did not bring Dr. Spear to Rockford only because he agreed not to compete should he withdraw from the clinic. They brought him to Rockford because, in order to more fully develop their clinic, they needed a Specialist in dermatology. None of the partners in the clinic are dermatologists and Dr. Spear is not in competition with them when he limits his practice to the treatment of diseases of the skin. To permit Dr. Spear to practice in Rockford would leave the plaintiffs no worse off than had Dr. Spear on his own initiative decided to establish a practice in Rockford. They have not, as the trial court found, lost a dermatologist, for they are free to bring in another dermatologist as an associate or partner. They have not lost the earnings of Dr. Spear, as the trial court found, as these were earnings from the practice of a specialty that none of them are qualified to engage in. We find no reasonable interest of plaintiffs to be protected by such drastic relief as to prevent a man from practicing his profession in a community in which he has become known and respected.

In addition to the effect upon the immediate parties we must consider the effect of enforcing this restrictive covenant upon the general public. In Bauer v. Sawyer, supra, the injunction issued against a doctor who was only one general practitioner out of 70 practicing in the Kankakee area. Dr. Spear is one of only four specialists in dermatology in Winnebago County. The facts in the record demonstrate that Winnebago County has fewer dermatologists per capita than all but one comparable Illinois community. To remove Dr. Spear from Winnebago County would result in Rockford having less dermatologists per capita than any other Illinois area. Of the three other dermatologists practicing in Rockford one is in his sixties and the other two in their fifties.

It would unduly lengthen this decision to recite the rationales of such cases as House of Vision v. Hiyane, 37 Ill2d 32, 225 NE2d 21, Professional Business Management v. Clark, 83 Ill App2d 236, 227 NE2d 371, Vander Werf v. Zunica Realty Co., 59 Ill App2d 173, 208 NE2d 74, all of which have struck down restrictive covenants where the evidence showed that enforcement of the restriction would be injurious to the public or cause undue hardship to the promisor or be greater than was necessary to protect the promisee.

We do not feel it necessary to recite the detailed testimony that Rockford and Winnebago County are growing areas and that there is a decided shortage of medical talent to serve the residents. Dr. Joseph Perez, president of the medical staff of St. Anthony Hospital in Rockford, testified that until Dr. Spear became a member of their staff, they had not had a dermatologist on the staff for over 10 years. He also testified that the doctors engaged in conferences, which he termed “Grand Rounds” wherein various physicians would lecture to other physicians on subjects of particular interest and that until Dr. Spear joined their group, they had had no lectures presented by a dermatologist.

In applying the test which we find had been applied in cases similar to this, we believe the evidence clearly indicates that enforcement of this covenant would be injurious to the welfare of the public by denying them a very needed service. Further, we are not of the opinion that to permit Dr. Spear to practice his specialty in Rockford will cause any specific injury to the remaining partners in the clinic. None of them specialized in dermatology and Dr. Spear would not be in direct competition either with the services that each of the partners renders individually to his patients or to the services the clinic renders collectively to the community.

For the reasons above stated, we are of the opinion that the restrictive covenant in the contract between plaintiffs and defendant is void and unenforceable.

Judgment reversed.

MORAN, J. and SEIDENFELD, JJ., concur.


text:
    Elliot Construction Corporation, Plaintiff-Appellee, v. Herbert Zahn, Defendant-Appellant.
    Gen. No. 67-171.
    Second District.
    October 15, 1968.

      Idarius, Rubin and Zahn Associates, of Lombard, for appellant.
    Mackenzie, Vescelus, Leetz & Perry, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On March 20, 1967, the plaintiff filed a complaint against Herbert Zahn, to recover damages under two contracts. On April 14, 1967, the Circuit Court of Du Page County ordered the defendant, a practicing attorney, to file his appearance instanter and to file an answer or otherwise plead within 15 days and the case was set for trial on May 17, 1967. Thereafter, two continuances were granted and the case was again set for trial on June 26, 1967. On this date, the defendant still failed to file an appearance or to plead to the complaint and a default judgment was entered against him; thereafter, a jury was empaneled and returned a verdict in the sum of $3,730.70 in favor of the plaintiff. A notation typed across the face of the verdict read, “Judgment on the verdict entered this the 26th day of June, 1967” and was signed by the magistrate presiding. On the following day, a written judgment order in the amount of the verdict was entered which also ordered execution to issue.

On July 25, 1967, the defendant sent notice to the plaintiff that he would appear on July 28, 1967, before the court and move to vacate the default judgment entered against him. In fact, the record discloses that he appeared on July 27, 1967. This motion, brought under section 50(5) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 50(5)) was denied on August 7, 1967, because of defendant’s failure to act within 30 days from the date of the default judgment.

On August 15, 1967, defendant filed a petition and affidavit to vacate based on section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72). The plaintiff did not file any pleadings in response to said petition. The trial court denied said petition and affidavit as insufficient, giving the defendant leave to amend.

On August 22,1967, the defendant filed his second petition and affidavit under section 72 to which the plaintiff did not file any responsive pleadings. The petition in substance alleged that defendant has a meritorious defense in that the contract entered into between the parties has never been completed by the plaintiff and that the defendant remains ready and willing to complete his performance. Defendant also alleged that a good reason existed as to prevent him from presenting a defense in apt time in that he was engaged in a jury trial in Cook County, Illinois from June 26, 1967, through June 28, 1967. As a third ground he alleged that he neither received notice nor had knowledge of the default judgment entered June 26, 1967, until he received an execution on July 21,1967, which stated that it was issued pursuant to a judgment entered June 27, 1967. Further, that he relied on the judgment date set forth in the execution and filed his motion to vacate on July 27, 1967, but because the execution incorrectly stated the “default judgment” it caused him to be one day late under section 50 (5).

The trial judge, on September 6, 1967, denied the petition stating that based on testimony on behalf of the plaintiff and the affidavit filed by defendant, that defendant had no meritorious defense and had also failed to exercise due diligence in presenting a defense.

On September 18, 1967, defendant presented a third petition under section 72 to the trial court with suggestions and affidavit to reconsider the matter. The plaintiff filed a motion to strike, which alleged that the exclusive remedy of a party aggrieved by a denial of a motion to vacate a judgment is by appeal. On September 18, 1967, plaintiff’s motion to strike was granted. The defendant then prosecuted this appeal.

The defendant contends that since the plaintiff failed to challenge his petition by a motion to strike or an answer, that the facts alleged in the petition must be taken as true. Therefore, the court abused its discretion in not vacating the judgment order. Generally, this rule of law is true. Wilson v. Wilson, 56 Ill App2d 187, 192, 205 NE2d 636 (1965). However, the petition itself must be sufficient in and of itself to warrant such a holding. In the case at bar it was incumbent upon the defendant to not only show a meritorious defense, but also facts which show that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Such motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 467, (1968). See also, Gunderson v. Rainbow Cleaners & Laundry, 77 Ill App2d 268, 272, 222 NE2d 41 (1966).

In the case at bar, even after being ordered to file an appearance and other pleadings, the defendant failed to do so. On June 19, 1967, he agreed to the trial date that had been set after having received two continuances so he cannot complain about notice. As stated before, the defendant is an attorney and the fact that he was in trial in another county on the same day does not relieve him of his responsibility to either inform the trial court of such conflict or have someone appear in his stead. The practical administration of justice requires that the litigant undertake the burden of following his case if possible. Esczuk v. Chicago Transit Authority, supra, page 468. It seems worthy of note that the defendant, after agreeing to a trial date, did nothing to check upon the outcome of the trial after concluding his affairs in the other county.

Further to be noted is the fact that the trial court heard testimony on behalf of the plaintiff opposing the granting of the petition. The burden is upon the petitioner in such a case to allege and prove the facts justifying relief. Esczuk v. Chicago Transit Authority, supra, page 467.

Relative to the point raised concerning the alleged error of judgment date in the execution, the record discloses that the default judgment was entered on June 26, 1967 for failure to file an answer or otherwise make an appearance. However, there was also an order entered on June 27, 1967, upon which the execution was based, which not only entered a judgment on the verdict but also ordered execution to issue. In other words, the execution truly stated what the record disclosed and was not in error. Nowhere did the execution state it was a default judgment as interpreted by the defendant. An examination of the record would have appraised the defendant of this fact and thereby could not have lulled him into a state of false security.

The last contention of the defendant is that a default judgment based upon a legally insufficient complaint is always subject to attack as a means of ascertaining the truth within the spirt and letter of the Civil Practice Act. He argues that since his affidavit shows that the contract sued under was never completed and that he remains ready, willing and able to complete his performance, that, therefore the complaint is insufficient to state a cause of action. Suffice to say, that defendant had ample opportunity to attack the complaint long before the default judgment was entered herein. Further, assuming the complaint to be insufficient which he has alleged in his affidavit to be a defense, it will still not avail him of the proof necessary under section 72. Since the petition did not set forth facts indicating that the defendant exercised due diligence in preventing the ex parte judgment, it is unnecessary to consider, determine or pass upon the merits of this defense. Colletti v. Schrieffer’s Motor Service, Inc., 38 Ill App2d 128, 133-134,186 NE2d 659 (1962).

Since the notice of appeal is from both the order of September 6, 1967, which we have already discussed, and the order of “September 15, 1967” which in fact was entered September 18, 1967, it will be necessary, in order to dispose of this appeal, to rule upon the latter.

As stated previously, the defendant filed three petitions under section 72 attacking the order of June 26, 1967. While the first petition was denied with leave to amend, the second petition was denied without such contingency. It therefore became a final and appealable order. See section 72(6) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72(6)). People v. Union Trust Bank, 406 Ill 208, 209, 92 NE2d 663 (1950); In re Estate of Knazek, 1 Ill App2d 387, 392, 117 NE2d 683 (1954). Since the order of September 6, 1967 was a final and appealable order the court should not have entertained any further motions. See Groves v. Illinois Publishing & Printing Co., 327 Ill App 544, 547, 64 NE2d 562 (1946) and cases cited therein.

We are of the opinion that the trial court was correct in its determination and therefore the orders appealed from are affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


text:
    Thomas F. Gainer, Administrator of the Estate of Patricia J. Gainer, Deceased, Plaintiff-Appellant, v. Elgin, Joliet and Eastern Railway Company, a Corporation, Defendant-Appellee.
    Gen. No. 67-173.
    Second District.
    September 23, 1968.

      Murphy and Griffin, of Aurora, for appellant.
    Alschuler, Putnam, McWethy, Weiss & Weiler, of Aurora, and Hackbert, Rooks, Pitts, Fullagar & Poust, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is a wrongful death case arising out of a railroad crossing accident. The trial court directed a verdict in favor of the defendant railroad at the close of the plaintiff’s case, and the issue on this appeal is whether that action was proper.

The accident happened at about 4:00 p. m. on February 7, 1965, at the defendant’s grade crossing on Lockport Road, east of the Village of Plainfield. The decedent, Patricia Gainer, had spent the weekend in Lockport at the home of a married girl friend, Alice Norris. On Sunday, February 7, Patricia became ill at the Norris home. She was helped into the Norris car, to be taken home to Aurora. When the car left the Norris home, Alice Norris was driving, and the decedent was sitting on the passenger side of the front seat.

The plaintiff did not offer any eyewitnesses to the accident. The crossing in question is almost a right angle intersection, with no special hazards involved. A car traveling on the highway has a clear view of the railroad track from a point at least 500 feet away from the track. The Norris car was headed west on Lockport Road, and defendant’s train was headed south on the track. The photographs received into evidence indicate that an automobile driver can see a considerable distance to his right along the track as he approaches the crossing from the east.

The Norris car struck the left side of the front step of defendant’s diesel locomotive. Patricia Gainer was killed immediately, and Alice Norris died a short time later.

The investigating police officer, who arrived at the scene a few minutes after the accident, testified that he found a skid mark of about 75 feet in length which had been left by the Norris automobile. The mark was a straight line, ending at the railroad crossing, with no indication that the car had swerved or turned.

The officer testified that it was a rainy day, that it was “foggy,” and that the roads were slippery. The witness did not indicate just how “foggy” it was, or to what extent the fog interfered with visibility.

The crossing was equipped with two signal standards, one on the east side of the track, and the other on the west side. Each of these standards contains two flashing lights which alternate back and forth. The lights on both standards are visible from both directions, so that an approaching car sees two sets of flashing lights. The testimony of the police officer established that these flashing signal lights are operated by an automatic circuit which is actuated by the approaching train. The lights continue to flash until the train has cleared the crossing. When the officer arrived at the scene a few minutes after the accident, the flashing signals were all operating. The train had stopped before clearing the intersection, and the flashers continued in operation during the entire time the officer remained at the scene, which was about an hour.

Another witness for the plaintiff was Mrs. John Chwasz, who had lived for 18 years in a house on the south side of Lockport Road, about 100 feet west of defendant’s track. On the afternoon of the accident, she was entertaining her sister-in-law, Mrs. Lottie Seidel, who was visiting her from out of town. The two women were sitting at the kitchen table, talking and drinking coffee. Mrs. Chwasz testified that she did not remember what they were talking about. She suddenly heard a tremendous noise, which was the sound of the train putting on its brakes. She further testified that she did not hear any other noise immediately prior to this sound of the brakes. Mrs. Chwasz admitted that the sound of the train whistle had become a familiar one to her, and that she often just ignored it. She agreed that there were times when she probably did not even hear the whistle —“it’s there, but you just don’t pay any attention — you know. You are not aware of it.”

Lottie Seidel also testified, and her testimony was essentially the same as that of Mrs. Chwasz. She said that she and her sister-in-law were sitting, talking, when they suddenly heard a “big noise,” and that she had not been conscious of any other sounds prior to that big noise. Specifically, she said that she had not heard any whistles or bells. Mrs. Seidel did not remember what she and her sister-in-law had been talking about. She admitted that she had not been listening for any railroad whistles or any sound from the outside.

The foregoing evidence, together with some additional testimony to establish decedent’s habits of due care, was the substance of plaintiff’s evidence on the liability question.

The trial court believed that there was insufficient evidence of defendant’s negligence, and we agree. Plaintiff’s theory is that the defendant failed to give proper warning of the approach of its train. He points out that the evidence indicates merely that the flasher signals were working after the accident. However, as plaintiff himself seems to recognize, the fact that the signals, actuated by the approach of a train, were found to be working immediately after the accident, is certainly strong circumstantial evidence that they started working when the approaching train triggered them in the normal manner. Moreover, it was not defendant’s burden to prove that the flashers were working; it was plaintiff’s burden to prove that they were not, if he sought to recover on the basis that they were not. There is obviously a complete absence of any evidence, direct or circumstantial, that the flashers were not working.

Plaintiff argues that, since the weather was foggy, defendant should have known that its flasher signals might not be visible to an approaching driver. He concludes that, under these conditions, defendant had the additional duty of sounding its whistle or bell, even if the two flashers were working. However, the plaintiff offers no evidence that the fog reduced the visibility of the flashing light signals.

Defendant, on the other hand, claims that there is no duty to sound a whistle or bell at a crossing equipped with flashing signals of the type involved here. This argument is based upon General Order No. 176 of the Illinois Commerce Commission, which provides that railroads are excused from sounding a bell or whistle “at such railroad highway grade crossings which are protected by flashing light signals or flashing light signals combined with short-arm gates that are automatically controlled and operated by means of track circuits . . . .” This order was promulgated pursuant to section 6 of the Fencing and Operating Railroads Act (Ill Rev Stats 1965, c 114, § 59), which, after stating that a railroad shall sound its whistle, or horn and its bell at highway crossings, provides that “at crossings where the Illinois Commerce Commission shall by general or special order direct, the railroad may be excused from giving warning provided by this statute.”

In view of plaintiff’s failure to prove that the fog reduced the visibility of the flashing light signals, we believe that, irrespective of the effect of the Commerce Commission Order, the evidence is, as a matter of law, insufficient to support a finding that defendant did in fact fail to sound a warning. The evidence in this regard consisted solely of the “negative” testimony of Mrs. Chwasz and Mrs. Seidel that they did not hear a whistle, horn or bell. This kind of testimony has probative value only when it appears that “. . . the witness was in such proximity that he could have heard the sound had it been given, and that his attitude of attention was such that if the bell or whistle had sounded it would have attracted his attention.” Berg v. New York Cent. R. Co., 391 Ill 52, 60, 62 NE2d 676 (1945); Becherer v. Best, 74 Ill App2d 174, 184-185, 219 NE2d 371 (1966). While these two witnesses were close enough to the scene to have been able to hear a bell and whistle, there is nothing about their testimony which would warrant the conclusion that their “attitude of attention” was such that, if it had been sounded, they would have heard it. Accordingly, the fact that they did not hear a whistle, bell or horn, proves nothing, and the trial court properly found that there was no evidence of the defendant’s alleged failure to sound a warning.

The parties also argue the question of whether there was sufficient evidence of decedent’s due care for her own safety, but, in view of our conclusion that there was no evidence of negligence on the part of the defendant, we do not reach this issue.

The judgment of the lower court will be affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.