author: JUDGE ROBSON

text:
    Wilbert K. Slaton, Appellant, v. City of Chicago, Appellee.
    Gen. No. 46,377.
    First District, Second Division.
    November 22, 1955.
    Rehearing denied December 13, 1955.
    Released for publication December 14, 1955.

      Fleetwood M. McCoy, and Moore, Ming & Leighton, all of Chicago, for appellant; Fleetwood M. McCoy, William E. Ming, Jr., George N. Leighton, and Walter K Black, all of Chicago, of counsel.
    John J. Mortimer, Corporation Counsel of City of Chicago, for appellee; L. Lonis Karton, Head of Appeals and Eeview Division, and Sydney E. Drebin, Assistant Corporation Counsel, both, of Chicago, of counsel.
   JUDGE ROBSON

delivered the opinion of the court.

This is an action by Wilbert Slaton against the City of Chicago to recover damages for personal injuries under the provisions of “An Act to Suppress Mob Violence,” ch. 38, secs. 512-517, Ill. Rev. Stat., 1953 [Jones Ill. Stats. Ann. 37.481-37.486]. At the close of plaintiff’s evidence, the trial court sustained a motion to direct the jury to bring in a verdict of not guilty. Plaintiff filed a motion for new trial which was overruled and the court entered judgment upon the directed verdict. Plaintiff appeals.

The single issue is whether there is evidence showing that plaintiff falls into the class of persons who sustain “material damage to property or injury to person by a mob. . . .” Ibid., sec. 515.

The trial court directed a verdict against plaintiff, and we must take all the evidence in favor of plaintiff and all inferences which can reasonably be drawn therefrom as true and from that determine whether there was any substantial evidence on which to submit the case to the jury.

The record reveals that on the 14th day of August, 1947, there was located on the east side of Halsted street between 103rd and 105th streets a public housing development known as the Fernwood Park Housing Development. The project consisted of 67 apartments, eight of which were occupied by Negro families and the rest by white families. The Negro families moved into the project on August 12, 1947, two days before the incident in question. The next day more than a thousand people assembled on the streets surrounding the project and threatened to evict the Negro families. On the day in question between the hours of 9:00 and 11:00 o’clock p. m. several thousand persons had assembled about the project. The crowd was dense and traffic on Halsted street was impeded and blocked for over two hours from 100th to 105th streets, including the intersection of 103rd and Halsted streets. Its members stopped cars and opened their doors to find out if there were any Negroes in them. In one instance a taxicab was stopped and examined. Some of the crowd said, “There aren’t any niggers in there, let ’em go. We are going to run the niggers out of the project, get ’em out of here.” A large number of policemen were assigned to the scene. The unlawful assembly of people was armed with bats, sticks, bricks and stones. On some occasions stones and bricks were thrown.

Between 11:00 and 12:00 o’clock midnight plaintiff was driving north on Halsted street. He was detoured by police officers at 107th street to Peoria street where his automobile was again detoured by other police north to 103rd street. There the detour by the police ended. Plaintiff proceeded east on 103rd street to drive back to Halsted street. A large crowd had gathered at the intersection of 103rd and Halsted streets. They started yelling, “Niggers”; “Here comes a bunch of niggers”; “Get that nigger driver in that car; what is that black son-of-a-bitch doing driving through here? Get that nigger driver of that car.” Plaintiff started to turn northward into Halsted street when members of the crowd started throwing bricks at the car and its occupants. One of them struck the plaintiff on the right side of the skull and another struck a woman occupant of the automobile. Other missiles struck various parts of the automobile. Plaintiff was rendered unconscious momentarily and was bleeding profusely. He revived sufficiently to operate his automobile northward along Halsted street. When he reached 60th street and Washington Park he stopped the car and turned its wheel over to one of his companions who drove it to Provident Hospital and later to the County Hospital where plaintiff was given treatment and his head wound stitched.

The pertinent provisions of the Act, Ill. Rev. Stat. 1953, ch. 38, secs. 512 and 515, read as follows:

“Sec. 512. Mob defined. ... Be it enacted by the People of the State of Illinois, represented in the General Assembly: That any collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of anyone supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers or regulative powers over any person by violence, and without lawful authority, shall be regarded and designated as a ‘mob.’ ”
“Sec. 515. Damage by violence — Penalty—Action against municipality. . . . Any person or persons composing a mob under the provisions of this act, who shall by violence inflict material damage to the property or serious injury to the person of any other person upon the pretense of exercising correctional powers over such person or persons, by violence and without authority of law, shall be deemed guilty of a felony, and shall suffer imprisonment in the penitentiary not exceeding five years; and any person so suffering material damage to property or injury to person by a mob shall have an action against the county, park district or city in which such injury is inflicted, for such damages as he may sustain, to an amount not exceeding ten thousand ($10,000) dollars.”

In the interpretation of this law, it is important to review its general historical background.

Municipal liability for damage to property by riot appeared in England first in 1714 (1 Geo. I, Stat. 2 c. v. [13 Stats. Large 142]; see also 7 & 8 Geo. TV, c. xxxi [67 Stats. Large 202] [1827]) and is found in modified form in “The Riot (Damages) Act,” 49 & 50 Viet., c. xxxviii (1886 Gen. Stats. 89). Municipal liability for particular crimes or injuries to the person, while it had a rudimentary existence early in the laws of England, experienced a progressive attenuation in development and eventually died. See Pomeroy’s Municipal Law (2d ed. 1883) 235-6; I Reeves’ Hist. Eng. Law (New American ed. 1880) 195, n. (a) and 196; III Wendell’s Blaekstone (1857) 160-1; Pollack and Maitland, Hist. Eng. Law, vol. i, p. 88, vol. ii, p. 578; I Holdsworth’s Hist. Eng. Law (3d ed. 1922) 15, 294. See further Statute of Winchester or Winton, 13 Edw. I, Stat. 2 (1 Stats. Large 230) (1285); 28 Edw. III, c. xi (2 Stats. Large 101) (1354); 27 Eliz., c. xiii (6 Stats. Large 373) (1585); 29 Car. III, c. vii (8 Stats. Large 412) (1676); 8 Geo. II, c. xvi (16 Stats. Large 511) (1735); 22 Geo. II, c. xxiv (19 Stats. Large 305) (1749); and cf. 9 Geo. I, c. xxii (15 Stats. Large 88) (1722). All of these Acts were repealed and municipal liability for particular crimes or injuries to the person was omitted from the consolidating Act, 7 & 8 Geo. IV, cc. xxvii-xxxi (67 Stats. Large 168) (1827). See also 6 Encyc. Law of Eng. (2d ed. 1907) 638-9. Examination and analysis of these early statutes show quite clearly, however, that of their several purposes one, at least, and perhaps the one most important, was to impart to and instill in each local community or political subdivision of the state and its members a strong sense of their integration with and responsibility to the state for the execution of its governmental policies, as expressed in its laws. The ultimate result desired was to instill respect in the people for law and order and an abiding belief in their dominion and supremacy. Amercement of the community or its inhabitants was exacted for breach or violation of the statutes. These statutes bespeak unequivocally the intolerant will of the state against the outlaw community and its members.

Mob and riot laws in the United States imposing liability upon municipalities for damage to property only, appeared as early as 1836 in the City of Philadelphia, and in 1841 in the county of Philadelphia. County of Allegheny v. Gibson, 90 Pa. St. 397; Purdon’s Pa. Stat. Ann., tit. 16, c. 28, secs. 3921-3925. Massachusetts had such a law in 1839 (Mass. Ann. Laws, c. 269, secs. 1-9) and New York in 1855 (Section 71, Gen. Mun. Law, New York, formerly Gen. Mun. Law, 1892, c. 685, sec. 21, andL. 1855, c. 428). Approximately half the states have adopted similar laws, some imposing municipal liability for damage to property only, some for injuries to the person only, and others extending liability to cover both cases. See, generally, Liability of the Municipality for Mob Violence, 6 Fordham L. Rev. (1937) 270; 13 A. L. R. 751; 23 A. L. R. 297; 44 A. L. R. 1137; 52 A. L. R. 562. Examination of the statutes under these classifications reveals that they have spawned numerous species.

The Illinois legislation imposing municipal liability for damage to property and injury to the person evolved during the post-Civil War period. The conflict between labor and industry in part characterized this period of expansive economic industrialization. Police killed and injured six strikers on May 3, 1886, at the Chicago-McCormick Harvester Works. The following day a bomb was thrown and seven policemen were killed and about 60 persons injured when the police attempted to disperse a meeting of strikers and strike sympathizers.

In 1887 in his biennial message to the General Assembly, Governor Richard J. Oglesby referred to the strike of the quarrymen in Will and Cook counties in April, 1885, and the switchmen in East St. Louis, St. Clair county, in March-April, 1886. Examples of damage to property by mob violence and riots were cited. Railroads called men from everywhere at high wages to protect their properties. In some cases they had them deputized by county sheriffs to assist in breaking-strikes. In one instance this resulted in the killing and wounding of six or eight persons. The governor criticized the many requests of the sheriffs of the counties for State militia and the failure on the part of some of them to exhaust all means at their disposal in meeting the problem. The governor requested laws to meet these and related problems. The General Assembly at that session enacted “An Act to indemnify the owners of property for damages occasioned by mobs and riots,” Ill. Rev. Stat. 1953, ch. 38, secs. 518-524 [Jones Ill. Stats. Ann. 37.487-37.493], and “An Act to secure the peace and good order of society, to quell riots or disturbances, to secure the execution of the laws, and to provide for special deputy sheriffs, and for calling out and using the military force of the state for the preservation of the peace and the protection of property,” Ill. Rev. Stat. 1953, ch. 38, secs. 525-535 [Jones Ill. Stats. Ann. 37.470-37.480]. Section 534 provides for a fine of not less than $100 nor more than $200 where “any force or company of private detectives or private citizens, not peace officers, . . . parade with arms, except when specially permitted to do so by the governor, or . . . assume to act as officers of the law, without proper authority. . . .”

In 1895, Governor Altgeld in his message to the General Assembly reviewed at length the history of the Pullman strike of 1894, and recounted incidents of property damage, violence and riot.

During this same general period, lynching, another manifestation of untrammeled mob rule, reared its sordid head. It won for itself a gruesome record in the decade before 1900. In its most evil year, 1892,155 Negroes and 100 white people were lynched throughout the country. See, generally, Raper, The Tragedy of Lynching (Univ. of N. C. Press 1933); Chadbourne, Lynching and the Law (Univ. of N. C. Press 1933).

In 1897 House Bill No. 395 entitled “An Act for the suppression of mob violence and lynching” was introduced. This bill failed during the readings. In 1899 House Bill No. 462, “An Act for the suppression of mob violence,” was introduced and was amended to read, “An Act for the suppression of mob violence, riot or lynching and to indemnify persons injured thereby,” etc. This bill was voted down in its final form, objectionable, perhaps, because it was very broad in scope. For similar laws see the statutes in Kansas, Kan. Gen. Stat. 1949, secs. 12-201 to 12-202, and "Wisconsin, Wis. Stat. 1950, sec. 66.091, and the annotated cases interpreting those laws. After subsequent attempts and. failures in Illinois in 1901 and 1903 to pass identical or similar bills, the General Assembly in 1905 finally enacted the present law.

It is with this historical and legislative background that we consider the issue in this case. Involved is a social problem inherent in our system of society and far-reaching in importance. Our people are of varied religious, ethnic, economic and cultural backgrounds. We have assumed world leadership in the establishment of a system of government wherein the incidents of birth and life have not been permitted to determine the rights of citizens before the law. No group or segment of a community has the right to dictate by force or by other unlawful means who shall or shall not live within the community. The unlawful assembly of people gathered together in the instant case apparently believed that the duly constituted authorities in admitting colored tenants into the housing project were harming the community. Allowing these tenants to remain in the project, they believed, would be detrimental to the value of the community property and ultimately affect the way of life of the community. They therefore undertook to prevent the entrance of Negroes into their community. In so doing they were not acting to promote their individual interests but what they wrongfully assumed to be a collective or community interest. They thus supplanted the legally constituted officers of the community, and it was in the pursuit of this unlawful arrogation of authority that the plaintiff was injured. This we consider to be the distinguishing feature of this case.

Does the statute in question afford the plaintiff any right of redress against the defendant for failure of the community and the local authorities to effectively combat the unlawful assembly of people thus engaged?

No case cited by defendant from this and the few jurisdictions which have an identical or substantially similar law is in point in the instant case. Defendant cites Barnes v. City of Chicago, 237 Ill. App. 464, affirmed 323 Ill. 203; Anderson v. City of Chicago, 313 Ill. App. 616; Kennedy v. City of Chicago, 340 Ill. App. 100; Brannock v. City of Chicago, 348 Ill. App. 484; Shake v. Board of Com’rs of Sullivan County, 210 Ind. 61, 1 N.E.2d 132; Hailey v. City of Newark, 22 N. J. Misc. 139, 36 A.2d 210; Lexa v. Zmunt, 123 Ohio St. 510, 176 N. E. 82; Reynolds v. Lathrop, 133 Ohio St. 435, 14 N.E.2d 599; Hammett v. Cook, 42 Ohio App. 167, 182 N. E. 36. The State of Nebraska has an almost identical statute, Neb. Rev. Stat. 1943, ch. 23, secs. 1001-1009, but no cases appear to have been decided interpreting it. West Virginia, which has a similar statute, has recently given it a broad interpretation. See Meadows v. City of Logan, 121 W. Va. 51, 1 S.E.2d 394. Similar in the purport given to the language in the statute by the court in the Meadows case, supra, is the Ohio case of Lexa v. Zmunt, supra, and the Ohio cases therein cited: the purpose of the statute is “the prevention and suppression of the operation of self-constituted groups, by whatever name, which form and assemble for the purpose of inflicting punishment upon those whom they conceive to have been guilty of conduct offensive to them, and which should in some manner receive punishment, or for the purpose of intimidating and compelling action and conduct in accordance with the views and desires of the intimidators.” Ibid., at pp. 513-4, Ohio, and p. 84, N. E.

In the Illinois case of Anderson v. City of Chicago, supra, at p. 622, the court said, “The purpose of the act is to impose upon municipalities, to which the State has delegated police power, the responsibility of protecting its residents against the unlawful exercise, by unauthorized groups of persons, of powers delegated.” Again, elaborating, at p. 624: “. . . the intention of the legislature, as expressed in the Act, was to impose upon municipalities in Illinois, the responsibility of preventing mobs from interfering with the orderly processes of established law and of preventing mobs from arrogating to themselves the powers given by this State to its municipalities, to force people into compliance with that law.”

We find it unnecessary to decide whether the intendment of the statute is satisfied where there is merely shown a purpose on the part of some group of five or more individuals to inflict summary punishment upon the person of another for some infraction, although for the infraction of no established law, as is indicated in some of the cases in other jurisdictions. We proceed upon the premise of intent as reasoned by us from the Anderson case, supra, at p. 624, that one of the purposes of the statute was to discourage and prevent interference with the orderly processes of administering the law or powers delegated to the local authorities, and the usurpation of those powers, wholly or in part, by unauthorized groups of persons for what they wrongfully assume to be a collective or community interest.

The negligence or inefficiency of local authorities is not the sole basis of the municipality’s liability under the statute. Kennedy v. City of Chicago, supra, at p. 105. One of the objects of the statute is to impose sanctions against the citizens of the community when they participate in or allow the condition to arise that we find in the instant case. An analysis of the language used in People v. Nellis, 249 Ill. 12, 20, clearly shows that the statute in question imposes a corollary responsibility upon the members of the community to “cause the taxpayers of such county or city to discourage the assembling of mobs within such municipalities and . . . cause all law abiding men residing in such communities to condemn and denounce mob violence, the result of which must be to create respect for the law and its enforcement and to discourage the assembling of mobs.” Some criticism has been raised as to whether the statute actually effectuates these and other objects. Various alternative legislative rationales have been suggested, some of them perhaps too broad. Cf., e. g., Note, Communal Liability for Mob Violence, 49 Harv. L. Rev. (1936) 1362.

The Anderson case, supra, at p. 624, makes the following statutory interpretation and lays it down as a prerequisite to recovery:

“It seems clear, therefore, that the intention of the legislature, as expressed in the Act, was to impose upon municipalities in Illinois the responsibility of preventing mobs from interfering with the orderly processes of established law and of preventing mobs from arrogating to themselves the powers given by this State to its municipalities, to force people into compliance with that law.”

We believe, however, when we consider the historical and legislative background, that this interpretation is too narrow and restrictive and that for this court to adopt it would render the statute impotent. We believe a more logical interpretation of the statute would allow recovery under the Act in those cases where it is shown that the unlawful crowd of people was assembled for the purpose of carrying* out what it believed was its collective or community interest, and in the execution of that purpose took over the powers lawfully delegated to and vested in the local authorities in order to exercise such powers correctionally and summarily over the plaintiff.

Plaintiff’s evidence in the instant case shows sufficiently the effective seizure and usurpation by the unlawful assemblage of the powers of control and enforcement putatively vested in the local authorities. This condition had existed for two days. The community and the authorities had full knowledge of it. The local authorities at times and at certain points were powerless. At those dimes and at those points, there was no lawful authority, only the lawlessness of mob rule. Milling masses, at times numbering thousands, and lesser crowds of hundreds or fewer associated with the principal body, blocked or halted pedestrian and motor traffic and without interference boldly opened the doors of cars suspected of carrying Negro occupants. What would have occurred had they found any is poignantly illustrated by what happened to plaintiff. The mob desired and it effected control in the area by force arid violence for the purpose of ousting the Negroes from the public housing project, off the streets and out of the area for what they wrongfully assumed to be a collective or community interest. The mob challenged the sovereign police power of the State and its delegation to the local authorities. We are of the opinion that it was the legislative intent in enacting the law to impose a penalty upon the community in the form of additional taxes when its members participate in or allow the condition to arise that we find in the instant case. By its very nature the enforcement of law must be exclusively delegated to properly constituted and responsible authorities. This the people of the State have done. It is the responsibility of the community to co-operate and assist the authorities in the orderly execution of their duties. A mob must not be permitted to usurp these powers of regulation and correction. This kind of outlawry, we believe, was one of the evils the statute was designed to prevent.

The cases of Barnes v. City of Chicago, Anderson v. City of Chicago, and Brannock v. City of Chicago, supra, are not controlling in the instant case. In none of these were the facts similar. In the Brannock case there was no evidence showing the purpose of the crowd which injured plaintiff. In the Anderson case there was no showing that the strikers and strike sympathizers intended to seize and usurp the powers delegated to the local authorities. They dispersed before the local authorities. In the Barnes case the action was brought under Section 516 of the statute, the anti-lynching provision, by the dependent heir of the policeman who had been shot and killed by the crowd, and the case was decided according to the definition of lynching which required that the person killed must have been at least suspected of some crime.

We conclude, therefore, that the record reveals that the plaintiff made out a prima facie case under the statute, and it was error for the court to direct a finding for the defendant at the close of plaintiff’s case. The judgment of the trial court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded with directions.

McCORMICK, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Spencer H. Logan, as Successor Trustee Under Trust Agreement Dated December 29, 1939, and Known as the Logan Real Estate Trust, Plaintiff-Appellee, v. Harris Trust & Savings Bank, as Executor of and Trustee Under Last Will of Stuart Logan, Deceased; William R. O’Donnell, Individually and as Executor of and Trustee Under Last Will of Stuart Logan, Deceased; Shirley Schoeller et al.; Continental Illinois National Bank & Trust Company of Chicago, as Executor of Last Will of Harriet E. Montgomery, Deceased; Judith M. Nichols et al., Defendants. Harris Trust & Savings Bank, as Executor of and Trustee Under Last Will of Stuart Logan, Deceased; William R. O’Donnell, Individually and as Executor of and Trustee Under Last Will of Stuart Logan, Deceased; Gladys Terbell Busk et al.; Continental Illinois National Bank & Trust Company of Chicago, as Executor of Last Will of Harriet E. Montgomery, Deceased; Judith M. Nichols et al., Defendants-Appellees. Shirley Schoeller and Phoebe Logan, Defendants-Appellants.
    Gen. No. 46,542.
    First District, Second Division.
    November 22, 1955.
    Released for publication December 14, 1955.

      Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellant, Shirley Schoeller; Isham, Lincoln & Beale, of Chicago, for appellant, Phoebe Logan;

      Weymouth Kirkland, Bartlett S. Marimon, James P. Dillie, Georges H. Dapples, Arthur C. Gehr, and Edward G. Proctor, all of Chicago, of counsel.
    Haight, Goldstein & Haight, and McBride & Baker, all of Chicago, for certain defendants-appellees; George I. Haight, Chas. H. Lerch, Edward H. Baker, Jr., and Robert B. Gerrie, all of Chicago, of counsel; Dallstream, Schiff, Hardin, Waite & Dorschel, of Chicago, for appellee, Loraine Felton; Louis Hardin, of Chicago, and Dwight W. Croessman, of Oaklawn, of counsel; McBride & Baker, of Chicago, for certain appellees, Continental Illinois National Bank & Trust Company of Chicago, as Executor, Harriet W. Phelps, and Judith C. Wietz.
   JUDGE ROBSON

delivered the opinion of the court.

This is an action filed by plaintiff, Spencer H. Logan, trustee of an inter vivos trust, in the nature of an inter-pleader for construction of the last will and testament of Stuart Logan, deceased. The issue presented to the trial court was whether Stuart Logan by his will exercised a power of appointment over his interest in an inter vivos trust. The trial court held that there was a conflict between Articles Fourth and Thirteenth of the will, and it resolved this conflict by holding that the decedent exercised his power of appointment and that the interest appointed passed under the residuary clause of the decedent’s will. Defendants Phoebe Logan and Shirley Schoeller, children of the deceased, prosecute this appeal from the decree of the trial court.

Two questions are presented for our decision on this appeal. The first is the construction of the will, the second whether the attorneys’ fees allowed by the trial court to the respective parties were excessive.

The facts relevant to the first point are that on December 29, 1939, a declaration of trust known as the’ Logan Real Estate Trust, was entered into by Spencer H. Logan, Waldo H. Logan and Stuart Logan, as beneficiaries, and Stuart Logan as Trustee. Article Third of the Trust Agreement provides in part as follows:

“. . . in case of the death of any beneficiary hereunder during the existence of this trust, his right and interest hereunder shall, except as herein otherwise specifically provided, pass as he may direct or appoint in his Last Will and Testament; and, in default of any such appointment, then the right and interest of any beneficiary hereunder shall pass to the children of such deceased beneficiary, share and share alike, . . .”

Stuart Logan died testate on October 27, 1952. He left surviving him as his only heirs his three children, Shirley Schoeller, Phoebe Logan and Loraine Felton. His last will and testament and codicils two and three thereto were duly admitted to probate by the Probate Court of Cook County on December 8, 1952. In codicil three he bequeathed and made gifts to certain beneficiaries, some of the appellees here, of a specific percentage of his net distributable estate. Their interest will be increased slightly if we determine that the power of appointment was exercised and passed under the residuary clause. Whether the children take as intestate heirs or under the Logan Real Estate Trust free of the testamentary trust does not involve any relatively substantial amount.

Article Fourth of Stuart Logan’s last will and testament provides as follows:

“Fourth: I direct my executors to divide the entire rest, residue and remainder of my estate, of all kinds and character whatsoever and wherever situated, belonging to me at the time of my death or in which I have any interest, including all lapsed legacies, but expressly excluding any property over which I may now or hereafter have a power of appointment, into three equal portions which, for the purposes of identification, I now designate as the Shirley Schoeller portion, the Phoebe Logan portion and the Loraine Felton portion. Provided, however, that the said Loraine Felton portion shall include as a part thereof all of the capital stock of, and all other interest of whatever kind and character I own and have in and to the Coca-Cola Bottling Company of Salt Lake City, Utah, and the Coca-Cola Bottling Company of Provo, Utah.”

Articles Fifth and Sixth of said will give, devise and bequeath the three portions referred to in Article Fourth to trustees for the beneficiaries therein designated.

Article Thirteenth of said will is as follows:

“Thirteenth: In the event the trustees or executors should desire to sell my interest as beneficiary under the Logan Beal Estate Trust created December 29, 1939, the principal asset of which trust is the real estate known as 1150 Lake Shore Drive, Chicago, Illinois, I direct that they shall give to my brother, Spencer H. Logan, of Great Barrington, Massachusetts, a reasonable opportunity to purchase the same if he be willing to pay therefor an amount at least equal to the highest bid offered therefor by any bona fide prospective purchaser. I request that prior to any sale of such beneficial interest, said executors or trustees consult with my brother, Spencer H. Logan, as to the propriety of such sale and the proposed price to be obtained. But this request is in no way in derogation of any of the powers of my executors or trustees to sell said beneficial interest.”

On January 12, 1953, subsequent to the death of Stuart Logan, the trust property, i. e., 1150 Lake Shore Drive, Chicago, Ulinois, was sold by plaintiff Spencer H. Logan, as trustee.

All parties agree that Stuart Logan’s estate is valued at approximately $600,000, excluding the value of his interest in the Real Estate Trust which is presently valued at approximately $65,000.

At least three possible interpretations of Stuart Logan’s will were presented to the trial court. They are as follows:

1. Article Thirteenth manifests testator’s intention to exercise his power, modifies the exclusion clause in Article Fourth and the interest subject to the power, except for the portion which passes under the provision of the Third Codicil, goes into the residue.

2. Article Thirteenth manifests testator’s intention to exercise his power but Article Fourth excludes the interest subject to the power from the division of the residue and, except for the portion that passes under the provisions of the Third Codicil, the interest goes intestate.

3. Articles Fourth and Thirteenth are irreconcilable; Article Fourth conclusively negatives Article Thirteenth and the latter is meaningless and without effect.

The trial judge adopted the first interpretation. He found the questioned articles irreconcilable, that Article Thirteenth was specific and later in time than the general expression of the testator’s intention in Article Fourth, and that Article Thirteenth superseded Article Fourth. He decreed that Article Thirteenth modified the exclusion clause in Article Fourth and constituted an exception thereto; that the interest subject to the power therefore passed as part of testator’s estate and as part of the threefold division of the residue.

Appellants first adopt the third interpretation. They argue (a) that Article Fourth’s exclusion clause negatives conclusively the purported intention in Article Thirteenth to exercise the power; but if not, and the purported exercise was intended to effect a different trust purpose, then (b) it failed and is meaningless because no gift or bequest of the interest subject to the power was made and no appointee was named. Moreover (c) even if we should find that Article Thirteenth discloses testator’s intention to exercise his power, since it failed because no disposition was made of the interest, it passes intestate to testator’s heirs at law, who are the same persons to take the property in the absence of an exercise of the power.

Appellees have adopted the first interpretation which was the one adopted by the trial court.

It has been said that the testator’s intention to exercise his power is demonstrated (1) where he refers to his power, or (2) to the property subject to the power, or (3) where the will would be inoperative without the aid of the power. His intention, nevertheless, to exercise the power, however manifested, governs these altogether subordinate and secondary rules. Funk v. Eggleston, 92 Ill. 515; Rettig v. Zander, 364 Ill. 112; Northern Trust Co. v. Cudahy, 339 Ill. App. 603. His intention is sought in and derived from the whole will, so that the clause in Article Fourth of the will in the instant case reading “but expressly excluding any property over which I may now or hereafter have a power of appointment,” must be considered together with and in relation to every part and provision of the will. Weilmuenster v. Swanner, 404 Ill. 21.

The rule that a later clause of a will prevails over an earlier where they are in irreconcilable conflict arises from necessity and rests upon the single presumption of fact that the testator changed his intention while writing the will. This is not an absolute rule but is applied only when the testator’s general intention cannot be deduced from the will read as a whole, Dickison v. Dickison, 138 Ill. 541, 546-7; see also Hunt v. Hawes, 181 Ill. 343; Sheridan v. Blume, 290 Ill. 508; Weilmuenster v. Swanner, supra; and ordinarily a specific provision will override or modify a general provision, Dickison v. Dickison, supra, at 547; see also McCreery v. Burmood, 332 Ill. 645, 648; Knisely v. Simpson, 397 Ill. 605. If possible, and if unreasonable or absurd constructions can be avoided, the apparent repugnancy should be resolved and the clauses reconciled in a manner which will render the whole will effective and allow each provision to stand. Therefore, as stated in Dickison v. Dickison, supra, at 546-7, it is “permissible to resort to every reasonable intendment, — to reverse the relative order of the devises or bequests, and to transpose the different provisions of the will, if it be possible thereby to render them consistent and give effect to each. . . . And so, repugnant words, in whatever portion of the will they occur, which contravene the evident general purpose and intention of the testator as clearly expressed, may be rejected or transposed, or limited and controlled by other and prior provisions, and by the general purpose and intent thus clearly manifested. Holliday v. Dixon, 27 Ill. 33. . . .” [Emphasis supplied.]

It may be that an appointive power is exercised ineffectively, as in a case where one of the appointees has predeceased the exercise and his share lapses (Bradford v. Andrew, 308 Ill. 458), or where the exercise violates the rule against restraints on alienation. (Northern Trust Co. v. Porter, 368 Ill. 256.) Whether the lapsed share passes as intestate property to the heirs at law (Bradford v. Andrew, supra), or the property passes as in default of appointment to those designated to take under the instrument that created the power (Northern Trust Co. v. Porter, supra), depends on whether the whole will evinces an intention on the part of the testator “to take the property dealt with out of the instrument creating the power for all purposes, or only for a limited purpose of giving effect to the particular intention expressed.” See the Bradford (465) and Porter (264) cases, supra. See also Talbot v. Riggs, 287 Mass. 144, 191 N. E. 360; Old Colony Trust Co. v. Allen, 307 Mass. 40, 29 N.E.2d 310; cf. the American Law Institute’s Restate. Prop., sec. 365 (3).

The English cases generally have held that property appointed upon a trust which for whatever particular reasons fails, causes the property to pass to the estate of the donee ineffectively exercising the power by way of a resulting trust. See, e. g, Case Comment, 2 U. of Chi. L. Rev. (1934) 156; see also the annotation in 93 A. L. R. 967 et seq.; and cf. Restate. Prop., sec. 365 (2). In Bundy v. United States Trust Co. of New York, 257 Mass. 72, 153 N. E. 337, 340, the court said, citing the case of Dunbar v. Hammond, 234 Mass. 554 (125 N. E. 686), that this result followed where no provision for default of appointment had been made in the instrument which created the power. In the Dunbar case, supra, exercise of the power failed for uncertainty because no beneficiaries were named, and the court held that the property subject to the power passed intestate to the next of kin of the donee of the power, subject to payment of legacies, debts and costs of administration. However, in Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 75 N.E.2d 3, the court said that the statement of the court in the Bundy case, supra, was dictum and was unsupported by any citation of authorities; that in the will which created the power involved in the Dunbar case, supra, there was a provision for default of appointment; and that the only rule governing the g^nnai problem of devolution of appointive property in cases of ineffectively exercised powers was (citing the Bradford [Ill.] and Talbot [Mass.] cases, supra) the intention of the testator. See also Northern Trust Co. v. Porter, supra, at 264-5, decided before the Massachusetts case of Fiduciary Trust Co. v. Mishou, supra, reviewing the earlier Massachusetts Dunbar, Bundy and Talbot cases, supra, and the Illinois case of Bradford v. Andrew, supra. The court in Northern Trust Co. v. Porter, supra, stated that the problem was one of the intention of the testator, held that the property passed under the instrument which created the power as in default of appointment instead of as intestate property, because (citing the statement in the Bradford case, supra) the donee’s will manifested no intention to take the property out of the instrument which created the power for all purposes.

In the instant case, Article Thirteenth manifests testator’s intention to take the property out of the instrument which created the power for all purposes. Its initial sentence assumes a power of sale in the executors over the property and such power can operate only upon the premise that the testator’s interest under the inter vivos trust indenture was already a part of his estate for all of the legitimate and ordinary functions and purposes to he executed by the executors. This is confirmed by the last sentence of that article. In so far, therefore, as it passed to testator’s executors, it passed as part of his estate, subject to payment of taxes, costs of administration, debts and legacies. While the executors were not expressly directed with respect to the disposition of the proceeds of sale of testator’s property interest under the inter vivos trust indenture, such implied direction cannot he ignored in view of the clearly recognized functions of the executors and the language used by the testator, viz., “my interest as beneficiary under the Logan Beal Estate Trust. . . .” For all practical purposes of the administration of his estate he “blended” that interest with all of his other property. See Bradford v. Andrew, supra; Bestate. Prop., sec. 354, Comment (d). Or, if considered as a direct gift or appointment to his executors, they took the interest in their representative capacity, in the absence of an expression of any other intention, and the interest passed as part of the estate. See, e. g., MacKenzie v. MacKenzie, [1851], 3 Mac. & G. 559; Bickenden v. Williams, [1869] L. E. 7 Eq. 310; In re De Lusi, [1879] Ir. L. R. 3 Eq. 232; and see generally 93 A. L. R. 967 et seq.

We consider it as established, therefore, that the power was exercised, that the interest subject to the power was taken out of the instrument which created the power for all purposes and, therefore, that the interest cannot pass as in default of appointment. We have only now to consider whether it passed in trust as part of the residue, or passed intestate to the heirs at law of the testator, subject, however', to payment of taxes, costs of administration, debts and legacies.

There is no logical conflict between Articles Fourth and Thirteenth up to this point. Article Fourth states, first and only apparently that the “interest” in question shall not pass as part of the residuary trusts. It is not thereby logically excluded from passing as part of the testator’s estate. It is only when we go beyond the term “executors” in Article Thirteenth and attempt to give effect to the term “trustees” also found there, that we are confronted with an apparent conflict. Is it irreconcilable 1

It is evident first that the testator had in mind other powers of appointment of which he was or might be the donee. It is not necessary to probe for the motive or possible motives that prompted his intention to exclude the “property” subject to those other powers from the residuary trust because motive is not controlling. We look first and solely to his intention. This is determined by reading the whole will and not one isolated section. The fact that he intended to exclude such other appointive property becomes important. If he had excluded specifically and not generally his “interest” in the Logan Eeal Estate inter vivos trust the solution of the problem would be more difficult. We should probably have to make a choice between the two and, therefore, sacrifice one. But in the instant will there is a general exclusion clause followed by a specific clause of inclusion. It is apparent that the testator intended that his specific appointive interest should pass by way of the residuary trust, and by parity of reasoning we do not believe that the exclusion clause in Article Fourth is in fact as general as when we initially considered it in isolation. His intention is specific in Article Thirteenth, his appointive interest is identified beyond doubt. It is included in and as a part of the trust provisions which are Articles Eight to Fourteenth, inclusive.

In the case of Dickison v. Dickison, 138 Ill. 541, the testator made a specific devise of certain real estate to two of his children “in full of their portions of my estate, both real and personal. . . In the residuary clause of his will, following other specific bequests and devises, he gave all the rest and remainder of his estate, real and personal to his wife, one-third, then “the remainder to my children in equal portions, share and share alike. . . .” He had other children. The court held that the specific devise “in full” to the former two children limited and controlled the general grant of the residue of his estate to “my children,” so that the former could not share in the general residuary grant with the other children. The analogy between that case and the present is apparent. While there was evidence in that case of the fact of other existing children, evidence of the existence in the instant case of other appointive powers in our opinion is not required. Reference by the testator to plural powers of appointment is evidence of the fact that he thought he had or might before his death acquire others. That is sufficient.

There is a presumption against intestacy so strong that the court will adopt any reasonable construction of the will rather than hold that the testator intended to die intestate as to any portion of his property. In re Estate of Trager, 413 Ill. 364, 365. There is no necessity to sacrifice the specific provision, about which there is little doubt, to the general, concerning which we have grave doubt. There is logically no irreconcilability between the two concerning the testator’s general intention. We conclude that it was not his intention to exclude his appointive interest from the residuary trusts (Dickison v. Dickison, supra), and that his appointive interest in the inter vivos trust passed as a part of his residuary trust estate.

As to the second issue raised by the appeal, the question of attorney fees, we have found that the will required construction. It is well established that under such circumstances it is proper to allow attorney fees. The amount of the fees are within the discretion of the trial court, but they must be reasonable, commensurate with the services rendered and the amount involved. Golstein v. Handley, 390 Ill. 118. The value of decedent’s share of the Logan Real Estate Trust, the fund in issue, was conceded by all the parties to be approximately $65,000. The total attorney fees allowed by the trial court was $15,990. Sixty per cent of the fees so allowed were charged against the corpus of the estate of Stuart Logan, deceased, and forty per cent were charged to the Logan Real Estate Trust. The total amount of the fees as originally requested was between $18,000 and $19,000. The trial court stated that this was excessive. It was suggested to the court that a portion of the fees should be chargeable to decedent’s estate which was approximately $600,000. After a discussion the apportionment set forth was decided upon.

It is the general rule that when an ambiguity in a will relates only to a portion of testator’s property, attorney fees, if allowed, are chargeable only against the property or fund in dispute. Golstein v. Handley, supra, and cases therein cited. It was therefore, error to charge sixty per cent of the attorney fees allowed to the estate. If the sum allowed of $15,990 were to be charged to decedent’s share of the Logan Eeal Estate Trust this would be twenty-three per cent of its value. This is clearly excessive.

The order allowing attorneys’ fees is therefore reversed and the question is remanded to the trial court with directions to allow reasonable attorneys’ fees to the respective parties commensurate with the value of the fund involved in this litigation.

Order affirmed in part and reversed in part, and cause remanded with directions.

McCORMICK, P. J. and SCHWARTZ, J., concur.


author: JUDGE SCHWARTZ

text:
    People of State of Illinois, ex rel. J. Edward Day, Director of Insurance of State of Illinois, Petitioner-Appellee, v. Progress Insurance Association, a Reciprocal or Inter-Insurance Exchange, Respondent-Appellee, Justine F. McCarthy, Director of Insurance of State of Illinois, and as Liquidator of Progress Insurance Association, Petitioner-Appellee, Robert E. Gallagher, as Receiver of Progress, Incorporated, Appellee, Progress, Incorporated, and W. N. Lowe, Claimants-Respondents-Appellants.
    Gen. No. 46,577.
    First District, Second Division.
    November 22, 1955.
    Released for publication December 14, 1955.

      Lyle, Havey & Gager, and Seyfarth and Atwood, all of Chicago, for appellants; Edward T. Havey, Karl Edwin Seyfarth, and Benton Atwood, all of Chicago, of counsel.
    Sherman B. Lans, of Chicago, for Justine F. McCarthy; Fred A. Gariepy, of Chicago, for Robert E. Gallagher; John Spalding, of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Progress, Incorporated and W. N. Lowe, its president and sole stockholder, appeal from an order denying their claim against Progress Insurance Association, an Illinois reciprocal insurance company which is in the process of involuntary liquidation. The principal issue involved is whether the prosecution of this claim is barred by a prior order (from which order no appeal was taken) finding that Progress, Incorporated was indebted to the Association, that it admitted its indebtedness in writing, that it was unable to pay its debts, and that therefore a receiver should be appointed for it. Progress, Incorporated was the attorney-in-fact for Progress Insurance Association, and since this decision in part turns on the relationship between insurance reciprocals and their attorneys-in-fact, we here briefly describe the nature of reciprocal insurance companies.

A reciprocal insurance company is in essence an organization whose members have agreed to exchange insurance contracts with each other and thus distribute a loss. Since the members of such a reciprocal group may be numerous and widely scattered, it is necessary for practical operation that they designate some central authority to act for them. The statutes therefore provide that the reciprocal designate an attorney-in-fact who is given authority by each individual in the group to effect an exchange of the individual’s insurance contract with the other members of the group. Ill. Rev. Stat. 1953, Ch. 73, Par. 674 [Jones Ill. Stats. Ann. 66.737]. The Illinois Insurance Code defines insurance companies as any entity or group of individuals engaging in “any kind of insurance or surety business, including the exchanging of reciprocal or inter-insurance contracts between individuals, partnerships and corporationsThus, a reciprocal is within the regulatory provisions of the Insurance Code. (Ill. Rev. Stat. 1953, Ch. 73, Par. 614 [Jones Ill. Stats. Ann. 66.677].) The attorney-in-fact for the reciprocal insurance company has been described as “the whole machinery, through which the association functions.” (Mosteiko v. National Inter Insurers Corp. of Chicago, 229 Ill. App. 153, 163 (1923).) See also Roach & Co. v. Harding, 348 Ill. 454 (1932) and Warfield-Pratt-Howell Co. v. Williamson, 233 Ill. 487 (1908).

On April 14, 1951, the Director of Insurance acting under the authority granted him in the Insurance Code petitioned for the liquidation of Progress Insurance Association (the Association). Progress, Incorporated (the attorney-in-fact) and Lowe, the sole stockholder, were named as respondents. The petition alleged that the Association had filed a false annual statement, including among other things the listing of $300,000 in United States Treasury bonds as unencumbered assets of the Association when, in fact, such bonds had been pledged as collateral for a note signed by Lowe; that the Association had accepted risks in excess of the ratio permitted by law; and that the policies issued by it failed to provide for contingent liability as required by statute. An answer to the petition was filed by the Association, the attorney-in-fact, and Lowe. On motion of the Director of Insurance the answer was stricken and on June 27, 1951, the trial court entered a decree of liquidation against the Association, reserving jurisdiction to take action with respect to all claims filed against it. No appeal was taken from this decree.

On November 30, 1951, Progress, Incorporated and Lowe filed with the Director, as liquidator of the Association, a claim against the Association for $384,049.05 for alleged unpaid commissions. The claim itself is not a part of the record in this appeal since neither the Director nor the appellants introduced it in evidence. The absence of the claim from the record is the basis of a motion made by appellees to affirm the judgment or dismiss the appeal and of a countermotion by appellants seeking to require the Director to file in this court a true copy of the claim. Various counter-suggestions and other motions relating thereto were made. This raises a serious question of practice, but as we do not desire to dispose of the case on a technical point, we have considered the matter as if the claim had been introduced in evidence and our decision makes the ruling on these motions moot. For the record we have denied all the motions.

On February 21, 1952, the Director filed a second petition in which he prayed that a receiver be appointed for Progress, Incorporated. It set forth the relationship of Progress, Incorporated to Progress Insurance Association and alleged that the entire management of the affairs of the Association was under the control of the attorney-in-fact, including the supervision and auditing of all books and records. The petition, among other things, alleged that under the power of attorney signed by all the members of the Association, the attorney-in-fact was to receive thirty-five percent of all gross premiums; that it had paid itself commissions of $200,000 over and above this thirty-five percent; and that it had admitted in writing it owed this sum to the Association, as evidenced by excerpts from the boohs of account maintained by it, which excerpts were attached as exhibits to the petition. The petition further alleged that it was impossible for the Director to carry out his duties of liquidation of the Association unless a receiver were appointed for the attorney-in-fact. The petition prayed that the court either appoint a receiver pursuant to Sections 86 and 87 of the Illinois Business Corporation Act [Ill. Rev. Stats. 1953, Ch. 32, § § 157.86, 157.87; Jones Ill. Stats. Ann. 32.088, 32.089] or, in the alternative, that the appointment of the receiver be pursuant to the inherent power of the court to grant such relief as ancillary to the liquidation decree previously entered. Appellant Lowe filed an answer on behalf of the attorney-in-fact, admitting certain allegations and denying others. The answer did not challenge the court’s jurisdiction nor did it make any claims that the Association was indebted to the attorney-in-fact.

The issue on the appointment of a receiver for the attorney-in-fact was beard on January 13, 1953, and the court found that the attorney-in-fact owed the Association over $200,000; that it bad in writing admitted such indebtedness and that it was unable to pay its obligations as they matured in the ordinary course of business. The court thereupon appointed a receiver for Progress, Incorporated. No appeal from that order was taken by appellants. Later in this opinion when we consider the finality of that order we will set forth more fully its recitals and findings. The court subsequently entered an order granting the receiver leave to institute legal proceedings against appellant Lowe to recover any moneys owed by him to the attorney-in-fact.

After the receiver for the attorney-in-fact had been appointed, the Director presented his recommendations on the claims filed against the Association including the claim of the attorney-in-fact for $384,049.05 filed November 30, 1951. He recommended that the claim of Progress, Incorporated and/or Lowe be disallowed in its entirety. The objections to this recommendation filed by Progress, Incorporated were stricken but Lowe was given leave to file specific objections as an individual to the disallowance of the claim. On May 24, 1954, these objections were overruled and the court found that the Association was not indebted to Progress, Incorporated.

Following this, separate petitions to set aside the order of May 24, 1954, were filed by each of the appellants (Lowe signing the petition for Progress, Incorporated), alleging they had a meritorious claim against the Association and further alleging that the order appointing a receiver for the attorney-in-fact was void because it was beyond the jurisdiction of the court. The petitions prayed that the order of May 24, 1954, disallowing the claim against the Association be vacated, that the appointment of the receiver for the attorney-in-fact be declared void or, in the alternative, that the findings in the receivership order be declared not binding as to the claim against the Association. The petitions also prayed that snch findings be declared not binding in the receiver’s separate suit against Lowe which had been instituted to recover moneys due from him to the attorney-in-fact. On June 28, 1954, these petitions were denied in their entirety. This appeal is from the orders of May 24, 1954 and June 28, 1954, denying appellants’ claim against the Association. We may now proceed to a discussion of the issue.

Two basic questions are presented, as follows:

1. Did the court have jurisdiction to enter a receivership order against the attorney-in-fact in the proceeding relating to the liquidation of the Association?

2. If it had jurisdiction, was the finding that the attorney-in-fact owed the Association more than $200,000 such an adjudication as would bar the attorney-in-fact from claiming in another proceeding that the converse was true and that the Association owed it money?

Considering the first question, there can be no dispute that the Director could have brought a separate suit to have a receiver appointed for the attorney-in-fact pursuant to Section 86 of the Business Corporation Act. (Ill. Rev. Stat. 1953, Ch. 32, Par. 157.86.) If, as alleged by the Director, the attorney-in-fact was indebted to the Association, had admitted the indebtedness in writing, and was unable to pay its debt, the act authorized such receivership of the attorney-in-fact. Moreover, the functions of an attorney-in-fact are such as to bring it within the definition of Section 2(e) of Article I of the Insurance Code. (Ill. Rev. Stat. 1953, Ch. 73, Par. 614.) Accordingly, the Director upon the allegations he has made could have sought liquidation or receivership of the attorney-in-fact at the same time he brought the original petition against the Association. Similarly, he could have instituted separate proceedings against the attorney-in-fact for liquidation or receivership under either the Insurance Code or the Corporation Act. The question thus becomes whether the Director, as part of the liquidation proceedings of the Association but subsequent to the entry of the liquidation order, could obtain a receivership for the attorney-in-fact in order to effectuate his liquidation of the Association.

Appellants contend that the decree of liquidation against the Association having been entered pursuant to the special statutory jurisdiction given the court by the Insurance Code, the court’s jurisdiction was limited by that statute and the court could not in that same proceeding entertain a petition for receivership under the Business Corporation Act. They cite Calkins v. Calkins, 229 Ill. 68 (1907) as the leading case for this doctrine. There, our Supreme court held that a defendant in a will contest could not file a cross-bill to construe the will as an equitable assignment. The court said that the will contest was statutory and that the lower court’s jurisdiction was limited to the words of the statute.

An examination of later cases reveals holdings contrary to that in the Calkins case. Liberalized rules of practice with respect to joinder of actions and the acceptance of the principle that wherever possible the entire controversy ought to be settled in one lawsuit have prevailed over the more technical holding in the Calkins case. In Hitchcock v. Hitchcock, 373 Ill. 352 (1940), our Supreme court affirmed a decree of divorce and also granted partition of real estate although the same argument was there made as appellants make in the instant case. The court there said, p. 356:

“Both complaints grow ont of the same difficulties. The parties are the same and the various causes set forth in the complaint may he more conveniently tried in a single suit, thus avoiding multiplicity of suits.”

In Stephens v. Collison, 249 Ill. 225, the court upheld the defendant’s right in a will contest to join separate defenses as to the validity of the will and as to the relationship of the plaintiff to the deceased. The court distinguished Calkins v. Calkins, supra. In Anderson v. Anderson, 293 Ill. 565 (1920) the court permitted the plaintiff to file a hill in equity seeking to set aside a will on the ground of fraud and at the same time to enforce a trust agreement, saying that the Calkins case had been modified by the Stephens case.

Cases have arisen under the Insurance Code where the same argument has been advanced by litigants as in the instant case. In all such cases brought to our attention the courts have rejected this narrow view of their jurisdiction to take action concomitant with or ancillary to the primary jurisdiction conferred by the words of the Insurance Code. In People ex rel. Lowe v. Marquette Nat. Fire Ins. Co., 351 Ill. 516, 531 (1933) the court said in such a case

“To deprive a court of the power to execute its decrees is to essentially impair its jurisdiction. Jurisdiction in a court of chancery to enter an order or render a decree includes the power to do that necessary to its execution.”

More recently it was argued that the court did not have the power to approve the accounts of a receiver in a case arising under the Insurance Code on the ground that the Code did not provide for such review of an administrative action by the court. The argument was rejected, the court saying (Miller v. Central Mut. Ins. Co., 299 Ill. App. 194, at p. 205):

“. . . the powers of the court in . . . insurance liquidation proceedings are not strictly limited to those expressly given by statute, but should be sufficiently broad to permit the effective liquidation of the company in the proceeding brought before the court for that purpose.”

The above language aptly covers the case at hand. The interwoven affairs of the Association and the attorney-in-fact and the alleged indebtedness of the attorney-in-fact to the Association made impossible an effective liquidation of the Association without a receivership for the attorney-in-fact. Such a receivership would have been proper as part of the relief granted under the original liquidation petition. That it was granted under a subsequent petition and under the authority of the Business Corporation Act rather than the Insurance Code appears to us inconsequential and not a sound basis for error. A court of equity has the power to make its proceedings effective even where it is acting in the first instance under statutory authority, and the court can accordingly draw on whatever legal authority it may find to accomplish such end. It takes years and even decades to complete receivership proceedings for defunct insurance companies and this should not be further prolonged by making the liquidation of reciprocals more complicated.

Having concluded that the lower court had jurisdiction to enter the receivership order in question, it must follow that the order was a final adjudication of those facts essential to such an order, one of those being that the attorney-in-fact was indebted to the Association. Section 86 of the Business Corporation Act empowers courts of equity to liquidate the assets and business of a corporation in an action by a creditor when it is made to appear, among other things, that the corporation has admitted in writing that the claim of the creditor is due and owing and that the corporation is unable to pay its debts and obligations as they mature in the regular course of business. (Ill. Rev. Stat., 1953, Ch. 32, Par. 157.86.)

As we have before stated, the petition for the appointment of a receiver for Progress, Incorporated contained the necessary averment of admission in writing of the debt and the further averment of inability to pay. The answer denied the indebtedness, the admission in writing, the inability to pay, the necessity for the appointment of a receiver, and other material allegations set forth in the petition. The order of January 13, 1953, appointing a receiver for Progress, Incorporated recites that the cause came on to be heard on the petition and answer; that the court heard the arguments of counsel and certain testimony in behalf of the parties, and then found that Progress, Incorporated, as attorney-in-fact, had the sole and exclusive managerial authority over the affairs of the Association; that the order for liquidation of the Association dated June 27, 1951, recited that the petition asking for liquidation of the Association stood admitted; that this admission was binding not only on the Association but also on Progress, Incorporated because the election to stand on the answer was made on behalf of the Association by Progress, Incorporated; that the false listing of the bonds referred to was made with intent to deceive and in order to balance on the books of the Association an overdraft by Progress, Incorporated on its commission account; that this amounted to approximately $200,000 and that this debt of Progress, Incorporated was “admitted in writing by the books of account of the said Association as kept by the respondent, Progress, Incorporated. . . .” The court further found that Progress, Incorporated was virtually without assets and unable to meet its obligations. It was on the basis of these findings that the court appointed a receiver. There could hardly be a decree more conclusive and decisive than this with respect to the issues involved.

It is urged that appellants were not given an opportunity to present their evidence. No transcript or report of the proceedings which took place at the time the trial court entered the order is before us. We must assume that the court had before it evidence adequate to support its findings. People v. Bagdonas, 372 Ill. 530 (1940); Buhai v. West Side Trust & Savings Bank, 283 Ill. App. 73 (1935); Kilpatrick v. Schmitt, 303 Ill. App. 15 (1939); Addante v. Pompilio, 303 Ill. App. 172 (1940); Hughes v. Williams, 300 Ill. App. 108 (1939); Sheean v. Beil, 300 Ill. App. 364 (1939). Copies of applicable portions of the books of account referred to were attached to the petition. The adequacy of the evidence, after the trial court’s decree, could only have been tested by a direct appeal.

Appellants argue that the receivership order was not final in that it appointed a receiver pendente lite. In a sense, all receiverships are pendente lite because ultimately the suit will be dismissed and the receiver discharged. But a custodial receiver appointed merely to hold property in dispute between litigants pending a decision by the court is a very different matter from that of a receiver appointed pursuant to Section 86 of the Business Corporation Act. It is true that the order in question does not specifically describe the receiver as a “liquidating” receiver and does not expressly find that Progress, Incorporated should be irrevocably put into the process of extinction. But the issues decided by the court were those required to support a liquidation order and it is clear that was what the court intended. Failure to appeal made the order conclusive on the parties. It cannot be attacked by what is in effect a collateral proceeding. Dishinger v. Bon Air Catering, Inc., 336 Ill. App. 557, 566; Blanchard Bro. & Lane v. Gay Co., 289 Ill. 413, 420.

Appellants finally urge that even though there was a final and binding adjudication that the attorney-in-fact owed the Association money, nevertheless such an adjudication was no bar to their claim against the Association. They argue that the earlier adjudication was the result of “limited bookkeeping entries,” and that they should now be given the right to show their set-offs. Any set-off the attorney-in-fact was entitled to could and should have been presented to the court at the time the order for receivership was being considered. Appellants cannot now be heard to contradict those findings.

We have considered the other points raised by appellants and find they have no merit. All pending motions are denied.

Orders affirmed.

McCORMICK, P. J. and ROBSON, J., concur.


author: JUSTICE EOVALDI

text:
    Lucille Borst and Mabel Wright, Plaintiffs-Appellees, v. Ray Langsdale, Defendant-Appellant, and Roy Spears, Codefendant-Separate Appellant.
    Gen. No. 10,853.
    Second District.
    December 1, 1955.
    Released for publication December 19, 1955.

      Bozeman, Moran & Klockau, of Moline, for defendant-appellant; Bernard J. Moran, and Hubbard B. Neighbour, and Robert A. Klockau, all of Moline, of counsel; Huber, Reidy & Katz, of Rock Island, for codefendaht-separate appellant; Isador I. Katz, of Rock Island, of counsel.
    Eagle & Eagle, of Rock Island, and John Cunningham, of Moline, for appellees.
   JUSTICE EOVALDI

delivered the opinion of the court.

Plaintiffs brought this action to recover damages for personal injuries which they received when the motor vehicle in which they were riding as guests was struck by two other vehicles, one driven by the defendant, Ray Langsdale, and the other driven by the defendant, Roy Spears.

The case was tried by a jury, which found both defendants guilty and awarded damages of $1,500 to Mabel Wright and $5,000 to Lucille Borst. The trial court denied motions for new trial filed by both defendants and entered judgments on the verdict.

The complaint alleged that plaintiffs were riding as guests in a motor vehicle being driven in a Northerly direction on Route 80 near Cordova. It charged that the defendant, Langsdale, was operating a car in a Southerly direction at said time at a speed greater than was reasonable and proper, contrary to Sec. 146, Ch. 95½, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 85.178]; that he failed to drive in the right half of the roadway, contrary to Sec. 151 [Jones Ill. Stats. Ann. 85.183] of said chapter; that he lost control of his car and collided with the vehicle in which plaintiffs were riding, thereby causing them to receive various personal injuries. The complaint further charged that defendant, Spears, was driving a vehicle in a Northerly direction and collided with the rear of the vehicle in which plaintiffs were riding because said Spears was driving Ms vehicle while under the influence of intoxicating liquor, contrary to Sec. 144 [Jones Ill. Stats. Ann. 85.176] of said chapter.

Defendant Langsdale’s theory is that the Trial Court should have granted his motion for new trial because the verdict was against the manifest weight of the evidence and because the Trial Court erred in allowing certain instructions offered in behalf of the plaintiffs and in behalf of codefendant Spears, and in refusing certain instructions offered by defendant Langsdale.

Defendant Spears theory is that the Trial Court should have granted his motion for a new trial because the verdict against him was against the manifest weight of the evidence, and that the direct and proximate cause in this case was the negligence of the co-defendant Langsdale; that the Court erred in allowing certain instructions offered in behalf of said defendant Langsdale, to the prejudice of this defendant Spears.

It appears from the evidence that plaintiff Lucille Borst and her mother, Mabel Wright, the other plaintiff, were riding as guests in a Dodge automobile, being driven by Matthew Jacobson, which was the first of a line of cars traveling in a Northerly direction on Illinois State Route 80 near the Village of Cordova, in Rock Island County. The defendant, Langsdale, was operating a Buick automobile in a Southerly direction approaching the car in which the plaintiffs were riding. The defendant, Spears, was driving a Mercury automobile in a Northerly direction and had passed several of the cars following the Jacobson car and was approaching the Jacobson car from the rear at a high rate of speed. As the defendant Spears passed the car immediately behind the Jacobson car, the defendant Langsdale drove his car off on to the shoulder on the West side of the road. The car spun out of control, and in defendant Langsdale’s own words, “whipped across the highway” into the path of the Jacobson car where it collided with the Jacobson car in the North bound or plaintiffs’ lane of traffic. The defendant Spears, at almost the same time, collided with the Jacobson car from the rear. The plaintiffs were injured in the resultant collision.

Defendant Langsdale testified that he had come around a curve before going into the straight stretch; that he was driving between 50 and 60 miles an hour “I imagine”; that after he came around the curve he saw a string of cars coming up the highway from the South, and that as he neared them he could see a car whipping out from this line of cars and it seemed to be coming up his side of the highway; that he didn’t know what was going to happen and he took to the shoulder.

As to the defendant Spears, it is undisputed that he had been drinking in the Duck Inn tavern prior to the collision. Four disinterested witnesses testified that just before Spears crashed his vehicle into the rear of the vehicle in which plaintiffs were riding he was weaving in and out of traffic, going on and off the highway, at a speed fixed by some of the witnesses as being in excess of 80 miles per hour. After the accident, Spears was arrested for drunken driving; an intoximeter test showed that he was intoxicated; and he entered a plea of guilty to a charge of driving while under the influence of intoxicating liquor in the County Court of Eock Island County.

The evidence in this case clearly presented a question for the jury as to the negligence of both of these defendants. The jurors were not required to determine whether one defendant may or may not have been more at fault than the other. The jurors by their verdict found that both defendants were negligent and that both contributed to cause the collision. A court of review will not interfere with the verdict of a jury .unless the jury’s verdict is contrary to the manifest weight of the evidence. Seeden v. Kolarik, 350 Ill. App. 238. In that case, the Court at pp. 243-244 said:

“The questions of negligence and contributory negligence are pre-eminently questions of fact for the jury to determine, and as the jury’s verdict is supported by substantial evidence, even though there be substantial evidence to the contrary, the reviewing court is bound by the verdict of the jury. To hold otherwise the court would be invading the prerogative of the jury, (citing cases) The jury is in a better position to determine the credibility of the witnesses and the weight to be given their testimony than the reviewing court. They have an opportunity to observe the demeanor of the witnesses while testifying and their manner of testifying, and from this and the testimony, they determine where the truth lies.”

The jury saw and heard the witnesses. Where disputed questions of fact are presented to a jury and the jury passes upon them, unless palpably erroneous, the finding of fact will not be disturbed by the reviewing court. Griggas v. Clauson, 6 Ill.App.2d 412; People v. Hanisch, 361 Ill. 465; Krug v. Armour & Co., 335 Ill. App. 222; Becherer v. Belleville-St. Louis Coach Co., 322 Ill. App. 37; Rembke v. Bieser, 289 Ill. App. 136; Leahy v. Morris, 289 Ill. App. 99. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Griggas v. Clauson, supra at p. 419; Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147.

We have examined the record and do not find that the verdict is manifestly against the weight of the testimony. Under these circumstances we have no right to set aside the jury’s finding.

The only other points raised on this appeal deal with objections by defendant Langsdale to certain matters in the instructions. The Trial Judge was literally swamped by the tender of over sixty instructions in this case: the two plaintiffs having tendered fifteen, of which ten were given; the defendant Spears having tendered seventeen, of which sixteen were given; and counsel for Langsdale, who is now complaining about the instructions, tendered thirty instructions, of which seventeen were given.

The defendant Langsdale contends that it was error for the court to give Instruction No. 4 for the plaintiffs, which reads as follows:

“You are instructed that at the time and place in question there was in full force and effect the following statute of the State of Illinois:

‘Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway . . .’

And if you find, from the greater weight of the evidence, that Ray Langsdale did not drive his vehicle on the right half of the roadway and that such conduct, if any, was negligent and directly caused injury to Mabel Wright and Lucille Borst, then you should find Ray Langsdale guilty and award damages to Mabel Wright and Lucille Borst, provided that you also find that Mabel Wright and Lucille Borst used ordinary care for their safety at and prior to the collision in question.”

We find no objection to the instruction as worded since it clearly sets out that the jury, in order to hold Langsdale guilty, was required to find not only that Langsdale failed to stay on his half of the highway but also that such conduct, if any, was negligent.

The Trial Court further removed any possibility of error in the giving of this instruction on behalf of the plaintiffs by also giving Instruction No. 31 at the request of the defendant Langsdale, which reads as follows:

“If you find from the evidence that the defendant, Ray Langsdale, without fault on his part, was confronted with sudden danger or apparent sudden danger, you are instructed that the law does not require of him the same degree of judgment or presence of mind as under circumstances not involving such danger, if any you find. If you find such danger, the law is that he must exercise such judgment and care which a reasonable man would exercise under similar circumstances to those appearing in this case from the evidence herein. If you so find that he was, without fault on his part, confronted with sudden danger or apparrent sudden danger, and that in attempting to avoid such danger he lost control of his car, while exercising the care required by this instruction in the presence of such danger, so that his said car crossed over to the Bast half of the- highway at the time of the collision in question, and if you further find that he was not guilty of any other negligence which was the proximate cause of the collision in question, then you should find the defendant Ray Langsdale not guilty.”

This instruction clearly incorporates defendant Langsdale’s theory of the case and clearly charges the jury with the necessity of finding that Langsdale was not only on the wrong side of the highway but also that he was negligent in getting on the wrong side of the highway before it would be warranted in returning a verdict of guilty as to said defendant.

The defendant Langsdale further complains that the Trial Court gave an instruction on behalf of the defendant Spears which dealt with sudden emergency. In view of the fact that the court also gave the above Instruction No. 31 on behalf of the defendant Langsdale, we feel that he cannot be heard to complain. Ordinarily, a party cannot complain about the giving of instructions where the court, at his request, has given the same kind of instructions. Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill. App. 330, at p. 339.

The defendant Langsdale also complains of plaintiffs’ Instruction No. 5 which reads as follows: “You are instructed that at the time and place in question there was in full force and effect the following’ statute of the State of Illinois:

‘No person shall drive a vehicle . . . upon any public highway in this State at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.’ ”

His contention is that the instruction is not by its terms made applicable to the facts, and as such is liable to confuse the jury. We feel that the evidence in the case presented a question for the jury as to whether said defendant’s speed of 50 or 60 miles an hour, as he stated, was reasonable under the conditions shown in the record in this case where said defendant shortly after he came around the curve saw the line of traffic approaching from the south and saw defendant Spears passing cars in said line. Defendant Langsdale admitted that he lost control of his car and “whipped across the highway,” and it is undisputed that the collision took place in plaintiffs’ lane of traffic. The manner of said defendant Langsdale’s driving was clearly a question of fact for the jury. Instructions are taken as a connected series, and the jury cannot single out one instruction and disregard others, but must take all of the instructions together, as the law; and the court so advised the jury in Instruction No. 17 given at the request of said defendant Langsdale.

It must be admitted that the number of instructions tendered by both defendants in this case serves not only to reduce the effectiveness of the instructions as an aid to the jury but also to lessen the likelihood of a reviewing court reversing the decision of the jury because of alleged faulty instructions. In Schluraff v. Shore Line Motor Coach Co., 269 Ill. App. 569, wherein forty-eight instructions were tendered, the court said: “The character and number of these instructions also serves to lessen our critical faculty toward them.” We call particular attention to the language of our court in Baker v. Thompson, 337 Ill. App. 327, at p. 330, wherein the defense tendered twenty-seven instructions :

“The abuses and evils underlying the practice of trial attorneys in tendering to a court a multitude of involved, confusing and argumentative instructions has been growing and certainly merits some observation by a reviewing court. It is common knowledge that most plaintiff attorneys tender very few instructions. They do so because of their fear of intervention of error. . . . The converse is true with a majority of those who are interested in the defense of personal injury cases. It is of little moment to them that an error in the trial procedure may occasion a new trial. Delays, however occasioned, are always one of the best defenses. Too often defense attorneys are prone to tender an excessive number of instructions, repeating the same proposition over and over, not with the honest design of informing the jury of the law, but with the thought of enforcing upon the minds of the jury the importance of their various defenses.”

After a careful consideration of the evidence and of the record in this case, we find no reversible error, and the judgment is accordingly affirmed.

Affirmed.

DOVE, P. J., concurs.


author: JUDGE FEINBERG.

text:
    Paul J. Quetschke, Doing Business as Paul J. Quetschke & Company, Appellee, v. Lee W. Ford and Mabel Ford, Appellants.
    Gen. No. 46,593.
    First District, Third Division.
    November 2, 1955.
    Released for publication December 19, 1955.
    Charles Ralph Johnston, for defendants-appellants; Louis W. Reinecker, for appellee; C. E. MeElhaney, Jr., of counsel.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


author: PRESIDING JUSTICE LEWE.

text:
    Porter D. Campbell, Appellant, v. Consumers Supply Company, Appellee.
    Gen. No. 46,689.
    First District, Third Division.
    November 16, 1955.
    Released for publication December 19, 1955.
    John T. Jones, and Kimball Smith, for appellant; Morris & Morris, for appellee.
   Opinion by

PRESIDING JUSTICE LEWE.

Not to be published in full.


author: JUSTICE CROW.

text:
    Charles A. Williams, Jr. and Irma Williams, Plaintiffs-Appellees, v. R. H. Johnson, Defendant-Appellant.
    Gen. No. 10,885.
    Second District.
    November 21, 1955.
    Released for publication December 9, 1955.
    Knight, Ingrassia and Bourland, for appellant; S. J. Roszkowski, of counsel; William C. Jackson, for appellees.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: PRESIDING JUSTICE McCORMICK.

text:
    Alice Van Straten et al., Individually, in Their Own Behalf and for Others Similarly Situated and Doing Business as Bethany Publishing House, an Unincorporated Association, Appellants, v. Continental Illinois National Bank and Trust Company; The First National Bank of Chicago; The Northern Trust Company; Continental Illinois Safe Deposit Company; Thomas D. Nash, Public Administrator of Cook County, Illinois, and Administrator of Estate of Mary S. Clayton, Deceased; Bertha Cuny et al., and Unknown Heirs at Law of Mary S. Clayton, Deceased, Appellees.
    Gen. No. 46,660.
    First District, Second Division.
    November 22, 1955.
    Released for publication December 14, 1955.
    Charles F. Hough, for plaintifEs-appellants; Louis A. Witry, of counsel; Edwin T. Sehneberger, and Paul W. Brust and William C. Munehoff, for appellees; Joseph I. Bulger, of counsel.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to bo published in full.


author: JUDGE SCHWARTZ.

text:
    Gilbert Kitt, Appellee, v. Liberty National Bank of Chicago, as Trustee Under Trust No. 5712, Carl H. Borak and Standard Securities & Management Corporation, Appellants.
    Gen. No. 46,639.
    First District, Second Division.
    November 22, 1955.
    Released for publication December 14, 1955.
    McCarthy and Levin, for appellants; Morgan, Halligan & Lanoff, and Hymen S. Grateh, for appellee; Edwin A. Halligan, and Samuel L. Lanoff, of counsel.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.