text:
    John Koch, Defendant in Error, v. Gustaf Pearson, Plaintiff in Error.
    Gen. No. 25,345.
    1. Automobiles and garages, § 3

      —when evidence in collision case must he limited. In an automobile collision case, it was error to admit evidence as to both the reasonable cost of the repairs and the difference between the values before and after the accident, without some instruction covering the question of the proper measure of damages.
    2. Automobiles and garages, § 3*—what damages are recoverable in action for collision. Where, in an automobile collision case, plaintiff and his car were injured, plaintiff was entitled to recover what he necessarily and reasonably spent in an endeavor to repair the car, provided it was reasonable to suppose the car could be' repaired; also the difference in value between what the car was worth before the accident and after it was repaired; .also what plaintiff lost by reason of being unable to carry on his business.
    3. Evidence, § 374*—who may testify as to speed. In an automobile collision case, it was error to refuse to permit the policeman who was near the point of collision to testify as to the speed at which defendant’s car was traveling, the rule being that one not an expert may testify in such case.
    4. Evidence, § 236*—when policeman’s report is admissible as to collision. In an automobile collision case, it was error to refuse to admit in evidence a policeman’s report made out by the officer immediately after the accident, where such officer testified that the report did not refresh his recollection but that it was in his handwriting and was true when he made it.
    5. Evidence, § 236*—what is effect of statement in policeman’s report of collision. Qucere as to the effect of a statement in a police officer’s report, as to an automobile collision, that no one was injured.
    Error to the Superior Court of "Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed November 4, 1920.
    George B. Cohen, for plaintiff in error.

      William B. O’Brien and J. J. Schwartz, for defendant in error; James C. Byrne, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section, number.

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover damages claimed to have been sustained by him by reason of an automobile collision. There was a verdict and judgment in his favor for $2,000, to reverse which defendant prosecutes this writ of error.

The record discloses that on August 2, 1916, plaintiff was driving his automobile in a southeasterly direction in Elston Avenue, Chicago, and that when he was crossing Logan Boulevard, which intersects Elston Avenue, his automobile was struck by defendant’s, damaging plaintiff’s machine and injuring him.

On August 21, 1916, plaintiff filed a prsacipe in the clerk’s office of the superior court claiming damages in the sum of $2,500 and praying that a summons issue, which was accordingly done. On September 22, 1916, a declaration was filed consisting of five counts in each of which it was averred that plaintiff’s automobile was worth $1,500; that it was damaged by being struck by defendant’s automobile, and that as a result plaintiff was required to expend $700 in an endeavor to repair it. Each of the counts also claimed damages in the sum of $5,000. On October 5, 1916, defendant was defaulted for want of appearance. During the same term, on motion of defendant, this default was set aside and vacated, and a plea of not guilty filed. Afterwards, on May 28, 1918, the cause came, on for trial and there was a verdict in favor of plaintiff for $1,000. Defendant made a motion for a new trial which was allowed on June 6, 1918, and a new trial awarded. Afterwards, on June 17, 1918, by leave of court, plaintiff filed an amended declaration which was substantially the same as the original declaration except that it was claimed that the automobile was worth $2,500 at the time of the accident. The case was again tried in February, 1919, and there was a verdict and judgment in favor of plaintiff for $2,000. Since there must be a retrial of this case,- we will refrain from discussing the evidence except in so. far as it may be necessary to set forth our reasons for reversal.

It appears from the evidence that plaintiff owned the automobile and was using it in the taxicab business ; that he was often employed by a funeral director and at other times had a stand down town; that he used the automobile in his business 24 hours a day, operating it himself in the daytime and employing another man to operate it for'him in the nighttime. The evidence also tended to show what plaintiff earned by the operation of the automobile for a year prior to the accident; that about 4 o’clock in the afternoon of August 2, 1916, plaintiff was returning from a funeral driving his machine in Elston Avenue; that as he crossed Logan Boulevard, which intersects Elston Avenue, defendant’s machine struck plaintiff’s, damaging it and injuring the plaintiff; that as a result of this, plaintiff, in an endeavor to repair the machine, expended the sum of about $288, and that on account of the injuries sustained by him he was unable to work for about 6 weeks; that after the repairs were made to the machine it would not operate satisfactorily and he traded it in for another machine, being allowed $600 for it. Plaintiff testified that the car at the time of the accident was worth $2,000; that he had bought it as a second-hand machine, although practically new, some months before the accident and had paid $1,900 for it. In view of all this, we might say in passing that the judgment seems excessive.

Plaintiff claims that the accident occurred through the sole fault of the defendant and," therefore, he was entitled to recover damages for the injuries he suffered, for the money he expended in endeavoring to repair the machine, and for the loss he sustained by reason of being unable to carry on his taxicab business.

As is usual in such cases, there was a sharp conflict in the evidence as to the rate, of speed at which both machines were going at the time of the accident. Plaintiff’s evidence tended to show that he was operating his machine at a slow rate of speed, while defendant was going very rapidly. Evidence offered on behalf of defendant tended to show that the contrary was the fact.

Defendant contends that the proper measure of damages was not applied. He says that the court erred “in failing to limit the damages to the automobile to one theory or the other: either the reasonable cost of the repairs or the difference between the values before and after the accident. It was error to admit proof as to both kinds of damages without some instruction covering the point.”

We think that if plaintiff is entitled to recover in this case his damages should be what he necessarily spent, provided it was reasonable, in an endeavor to repair the car, provided it further appeared reasonable to suppose that the car could be repaired. He was also entitled to recover as an element of damage the difference in value between what the car was worth before the accident and after it was repaired, because it is seldom, if ever, that a car can be repaired so as to make it as good as it was before it was damaged. A further element of damage would be what the plaintiff lost by reason of being unable to carry on his business, and we think that the evidence introduced by plaintiff tending to show what he had earned in the taxicab business the year before the accident was proper to be considered in this regard.

Defendant also contends that the court erred in refusing to permit the policeman who was near the place of the accident to testify to the speed at which defendant’s car was traveling. The court apparently refused to permit this witness to so testify on the ground that he was not qualified as an expert. This was error. One not an expert may testify in such case. Heidenreich v. Bremner, 176 Ill. App. 230.

It is also argued that the court erred in refusing to admit in evidence a report of the accident as made out by the police officer immediately after it occurred. It appears that the policeman was about 150 feet from the place of the accident and that he immediately went back to the two machines, spoke to the drivers, and made a written report. Upon the trial he examined the report to see if it would refresh his recollection as to what occurred and if he could then testify to the facts. He testified, upon examination, of the report, as to some of' the matters therein stated, that it did not refresh his recollection, but that the report which was in his handwriting was true when he made it. The report was then offered but upon objection was excluded. We think this was error. Where a witness testifies that he made a written report or memorandum of the occurrence at or near the. time of its happening, but that upon examination of it he has no present recollection of the matters therein stated except that he knows that it is correct, then such report or memorandum is admissible in evidence. 1 Wigmore on Evidence, secs. 754, 800, 734; 1 Greenleaf on Evidence (16th Ed.), sec. 439(b); Best on Evidence (3rd Am. Ed.), p. 219; 2 Elliott on Evidence, sec. 872; Halsey v. Sinsebaugh, 15 N. Y. 485; Acklen’s Ex’r v. Hickman, 63 Ala. 498; Davis v. Field, 56 Vt. 426; Mineral Point R. Co. v. Keep, 22 Ill. 9; Kent v. Mason, 1 Ill. App. 466; State v. McGruder, 125 Iowa 741; State v. Brady, 100 Iowa 191; Koehler v. Abey, 168 Mich. 113; Johnson v. Union Carbide Co., 169 Mich. 651; Alabama Great Southern R. Co. v. Clarke, 145 Ala. 459; Manning v. School District, 124 Wis. 84; Territory v. Harwood, 15 N. M. 424.

In speaking of the admissibility of “past recollection recorded,” Professor Wigmore says (section 734): “The situation is one in which the witness is devoid of a present recollection, and therefore desires to use a past recollection. This he proposes to do by employing some record of this past recollection and adopting it as his present statement. Thus, he says: ‘I made a correct memorandum of this conversation while my recollection was fresh; I now remember nothing, but can offer my prior recollection as embodied in the memorandum.’ * * * It must appear that the witness had a good recollection when it was recorded, but that is all that is required by the canons of ¡Recollection. ’ ’

Continuing he says: “Broadly, then, we have to provide, in using a record of past recollection, for certain practical tests of the accuracy and identity of the record; furthermore, we must require some guarantee that the past recollection thus recorded was a satisfactory one, e. g. that it was recorded at or about the. time of the events; we may be asked to declare that in any case a present recollection is always preferable to a past one, and that hence the lack of a present recollection must first be expressly ascertained; and it will also be found that historically there has been much confusion, great delay, and possibly an occasional refusal to allow the use of a past recollection at all.” The author then says that the use of a past recollection as evidence has on many occasions been vindicated by the courts of this country as well as of England, and in the note cites Halsey v. Sinsebaugh, 15 N. Y. 485, where it is said: ‘ The efforts of memory are seldom equal to the task of recalling after "any considerable lapse of time even the exact substance of words and phrases. * * * To exclude such a record, when honestly made, would be to reject the best and frequently the only means of arriving at the truth.” In Acklen’s Ex’r v. Hickman, 63 Ala. 498, it was held that where “the witness after examining the memorandum cannot testify to an- existing knowledge of the fact, independent of the memorandum,—in other words, cases in which the memorandum fails to refresh and revive the recollection and thus constitute it present knowledge * * * (if the witness) testify that at or about the time the memorandum was made he knew its contents and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum. ’ ’ Davis v. Field, 56 Vt. 426, it was said: “Nor was it necessary that the witness should have had an independent recollection.. * * * The old notion that the witness must be able to swear from memory is pretty much exploded. All that is required is that he be able to swear that the memorandum is correct. There seem to be two classes of cases on this subject: (1) Where the witness by referring to the memorandum has his memory quickened and refreshed thereby, so that he is enabled to swear to an actual recollection; (2) Where the witness after referring to the memorandum undertakes to swear to the fact, yet not because he remembers it, but because of his confidence in the correctness of his memorandum. In both cases the oath of the witness is the primary, substantive evidence relied upon; in the former the oath being grounded on actual recollection, and in the latter on the faith reposed in the verity of the memorandum.” The author continuing (section 736, p. 832) says: “In Illinois the use of a past recollection is undoubtedly intended to be sanctioned.” Section 754, the author says: “If by verifying and adopting the record of past recollection the witness makes it usable testimonially, and if by this verification alone can it become so usable, it follows that the record thus adopted becomes to that extent the embodiment of the witness’ testimony. Thus, (a) The record, verified and adopted, becomes a present evidentiary statement of the witness; (b) and as such it may be handed or shown to the jury by the party offering it. * * * A few decisions declare that the writing is not ‘independent evidence’; hut this is to be construed as meaning merely—what no one could deny—that without being verified and adopted * * * it is without standing. A few others expressly refuse to allow it to be ‘read in evidence’ or ‘given in evidence.’ But these must be regarded as unsound in principle.” Section 800, it is said: “When a witness uses in his testimony a record or memorandum of his past recollection, he virtually adopts it as part of his present deliverance; it becomes a written statement of his present assertion, and as such it may be read and shown to the jury.”

In 1 Grreenleaf on Evidence (16th Ed.), sec. 439(b), it is said: “(1) The record (memorandum, note, entry, etc) must have been made at or about the time of the event recorded. Whether in a given case it was made so near that the recollection may be assumed to have been then sufficiently fresh must depend on the circumstances of the case. (2) The witness need not have made the record himself; the essential thing is that he should be able to guarantee that the record actually represented his recollection at the time, and this he may be able to do, either by virtue of his general custom in making such records, or (as in the 'common case of an attesting witness) by his assurance that he would not have made the record if he had not believed it correct. * * * Since the witness has verified and adopted the record as representing his knowledge on the subject, it becomes a part of his testimony, ‘just as if without it the witness had orally repeated the words from memory,’ and may therefore be read aloud by him and shown to the jury, or otherwise be put in evidence. A few courts speak of the writing as ‘not in itself evidence,’—meaning apparently—what cannot be denied—-that it has no standing except as verified and adopted by the witness. A few others expressly refuse to allow it to be ‘read in evidence’ or ‘given in evidence’; but this must be regarded as erroneous.”

In Best on Evidence (3rd Am. Ed.), p. 219, the author says: “Strictly speaking, the memorandum which refreshes recollection must result in a present memory of the facts covered by it. Such a memorandum is in frequent use. A memorandum which refreshes no further recollection than that it was accurate when made according to a then present knowledge is really incorporated with the evidence, and made a part of it. As such, it is evidently entitled to be received in evidence as constituting, as it were, an extension, amplification, or explanation of the evidence of which it is a part. * * * The memorandum verified to a certain extent by evidence of a now forgotten knowledge is accepted, in pursuance of the administrative principle that a party may offer the best evidence he can. * * * Its use is sanctioned in several jurisdictions.”

In 2 Elliott on Evidence, sec. 872, the author says: “If the witness, after referring to the memorandum, is able to recollect the fact recorded, that is, if his memory is revived so that he remembers the fact, and can testify to it independently of the memorandum, then the memorandum is not admissible in evidence, unless it is admissible for some other purpose under some other rule. In other words, the memorandum cannot be put in evidence in corroboration of the recollection of the witness. But if the witness, after referring to the memorandum, does not have his memory revived, but swears to the fact recorded not because he remembers it, but because of his confidence that the memorandum is correct, in such case the memorandum is generally held to be admissible in evidence. In such cases the witness cannot testify to an existing knowledge of the fact recorded, independently of the memorandum, but he testifies that, at the time the memorandum was made, he knew it to be correct, and it is held that the oral testimony of the witness, and auxiliary thereto, the original memorandum, are admissible, since they together are the same as the present positive statement of the witness. But such a memorandum is not usually considered as of itself admissible as independent evidence, unless it falls under some other rule of admission, as the general rule, as we have stated it, although supported by the weight of authority, is somewhat questionable on principle.”

In Mineral Point R. Co. v. Keep, 22 Ill. 9, it was held that a witness might read from written minutes made by him on a former trial of the testimony of a witness since deceased. The court there said (p. 20): ‘ ‘ This court has laid down no rule as to the degree of connection required between notes and memory, and we are at liberty to adopt such an one as may be reasonable and just. * * * Here the minutes of the evidence taken by counsel were not offered as evidence per se— he was sworn to their correctness and read from them without objection. What better evidence of the testimony of a deceased witness could there be, than correct notes of it taken at the time? It fulfills one of the most important requirements of the law, that the best evidence shall be produced in the power of the party to produce. * * * It seems to us that such minutes sworn to be correct are far better and more satisfactory as evidence than the imperfect and fleeting recollection of any man could possibly be, and we do not feel the force of a reason which shall require us to reject a higher for an inferior grade of testimony. It must be recollected, that the witness detailing the testimony of the deceased, is not called to testify to any fact in the ease, but only to» the fact as to what the deceased witness swore, and if he swears that he made full notes of his testimony at the time, and that they are correct, we see no reason why he should not read them to the jury, as the best evidence of the fact to which he is called to depose.” The court then discusses the authorities and continues: “We think written notes made by the counsel for one of the parties in the cause, and sworn to be correct, are more reliable than testimony resting in memory merely.”

In Kent v. Mason, 1 Ill. App. 466, the court said (p. 471),: “That a witness may refer to a memorandum made by him to refresh his recollection is a familiar principle. But the memorandum itself is not admissible in evidence except in cases where the witness, at the time of testifying, has no recollection of what took place other than that he accurately reduced the whole transaction to writing. 1 Greenleaf on Evidence, sec. 437.”

' In State v. McGruder, 125 Iowa 741, it was held that - a record kept by a school-teacher of the standing of defendant in his studies was properly admissible in evidence. It is there said: “It is not to be supposed that the witness could recall the markings, even after refreshing her memory, and in such cases the record is now admitted, instead of the oral recital formerly exacted.”

In State v. Brady, 100 Iowa 191, it was held that the records made by a railroad agent showing the sale of tickets were admissible, the party making them having no independent recollection. It was there held that the records thus made should go to the jury, the witness having guaranteed their accuracy.

In Koehler v. Abey, 168 Mich. 113, it was held that a written memorandum used to refresh the recollection of a witness is not admissible as further substantive evidence of the fact, but when the witness’ recollection is not refreshed by an examination of the memorandum, and it is shown that the memorandum is accurate, it is competent evidence. In that case it was held that the memoranda made by the State Factory Inspector in the discharge of his duties were admissible in an action for personal injuries where it was claimed that there was dangerous machinery left unguarded. The court there discussed the authorities and said: “If he had testified that the writing refreshed his recollection, so that he had a present recollection of the fact sought to be established, the writing would not have been admissible as further substantive evidence of the fact. In such a case it is the testimony of the witness, the recollection, which is evidence, not the document or writing used to refresh recollection.” The court there quoted with approval from an opinion delivered by Judge Cooley (27 Mich. 454), as follows: ‘‘ ‘Had Draper testified to any present recollection of what these witnesses swore to, he would have been allowed to state what it was. But clearly his minutes taken at the time, and which he swore were correct, were much less liable to err than any recollection he might have could possibly be. His minutes embodied his understanding of the evidence at the time, and would remain the same, and not become varied in the lapse of time; but his recollection, which would start with the same understanding, was constantly liable to be more or less perverted and changed, or in material parts obliterated from the memory. * * * Any rule of evidence which would admit the recollection and exclude the minutes must obviously be illogical and unsound. We approve, in this regard, of * * * Halsey v. Sinsebaugh, 15 N. Y. 486, which we think lay down the true rule, and explain the origin of some misapprehensions regarding it. ’ ” The Michigan court also quoted with approval from the Halsey case as follows: “‘That an original memorandum, made by the witness presently after the facts noted in it transpired, and proved by the same witness at the trial, may be read by him, and is evidence to the jury of the facts contained in the memorandum, although the witness may have totally forgotten such facts at the time of the trial. ’ ” The court there further said: “It must be kept in mind that the discovery, and not the suppression, of material facts is the purpose of the court, and that a party litigant has the right to prove material facts by competent evidence. Under the rule which has been stated, this book was competent evidence of the recorded fact, although the witness had forgotten the fact, if the accuracy of the record was established. ’ ’ This case was followed in Johnson v. Union Carbide Co., 169 Mich. 651, where it is said (p. 660): “This court, in a recent case where the question of the admissibility in evidence of memoranda made by a witness at the time of the happening of the event under inquiry, held that upon reason and authority such a memorandum would be competent evidence of the facts therein recorded, if its verity as a record of fact is sufficiently established. Koehler v. Abey, 168 Mich. 113.”

In Manning v. School District, 124 Wis. 84, it was held error for the trial court to exclude the diary in which the witness noted down from day to day the condition of the weather and which diary, he was able to testify, was correct. The trial judge did not permit the witness to testify on the theory that a witness could not testify with the aid of the memorandum unless after referring to it he could testify from present recollection. This was held error. The court said (p. 97): “ This court has held otherwise on many occasions, in harmony with most if not all elementary authorities on the subject,” citing authorities. It was there held that this rule applied to a mere private memorandum, for, as the court said: “There is no good reason for not so extending it, where the competency of the witness is clearly established by his positive testimony as to present recollection that when he made the memorandum it was in accordance with the truth as he then knew the fact to he.” The court, continuing, quoted with approval from 3 Jones on Evidence, sec. 884: “ ‘It is now well settled that a memorandum or writing may he used by the witness, not only when he can swear from actual recollection, but in some eases where the witness, after referring to such writing, can swear to a fact, not because he remembered it, but because of his confidence in the correctness of the writing. * * * Although it is clear that the document is not admissible as evidence when it so recalls the facts to the mind of the witness that he remembers them and can testify from his actual recollection, it has frequently been held that another rule prevails when the witness, after examining the memorandum, cannot testify to an existing knowledge of the fact, independently of the memorandum, hut can testify that, at or about the time the writing was made, he knew of its contents and of their truth or accuracy.’ ” Continuing, the court said (p. 99): “Not only was it permissible for the witness to testify from the memorandum when the only remembrance he had on the subject was that it was correctly made, but it was proper to receive the memorandum in evidence as part of the witness’ testimony.”

In Territory v. Harwood, 15 N. M. 424, it was held that the record of the baptism of a child made by a priest was competent evidence to establish the age of the child provided the priest testified the record was correct. The court there said that if the witness, after consulting such record, was not refreshed in memory so as to bring the facts to his present knowledge, the testimony was not necessarily lost. “He may still, if he can, testify that the memorandum was made at the time when recollection was fresh, and that when so made it spoke the truth. Then according to the ancient practice, he might state or read its contents to the jury,” citing authorities, “Or, according to the weight of authority, the paper might be introduced in evidence. ’ ’

In the instant case the police officer testified that he made a report at the time and that it was correct. The court ruled this out apparently on the theory that such a report could only be used for the purpose of refreshing the witness’recollection, and that it could, not be used as evidence in any circumstances. Under the authorities which we have cited, we think it clear that the court erred, for it appeared from the testimony of the officer that after he had examined the report it did not refresh his recollection, but that he knew he made it at the time and knew it was correct. This was sufficient to permit the report to be received.

In our opinion the memorandum involved ih the instant case was admissible although it contained the words “No one injured” written by the policeman. Those words cannot be considered as a statement of the officer’s opinion, but rather as a statement of fact based upon appearances which he observed and recorded at the time, or the statements made to him by the parties.

Complaint is also made that the court unduly limited counsel for defendant in the cross-examination of "certain witnesses, and that certain rulings of the court were otherwise prejudicial. We have examined this proposition and find that while a number of questions put by counsel were not technically correct, yet, upon the whole, the trial court should have given him more latitude.

The judgment of the superior court of Cook county is reversed and the cause remanded for a new trial.

Reversed and remanded.

Thomson, J., concurs.

Taylor, P. J., specially concurring:

The report of the police officer contained the following: “Nature and extent of injury: None,” and the following: “Cause of Accident. An automobile driven & owned by Gustaf Pearson coming southwest on Logan Boul. ran into the left side of an auto driven & owned by John Koch going southeast on Elston Ave., and the left running board & left front & rear fender of John Koch’s machine broken, the front two fenders & frame of Gustaf Pearson’s machine broken. No one injured. ’ ’ The question arises whether the words “Nature and extent of injury: None,” and the last words “No one injured” made the document to that extent incompetent. It would seem, at first blush, that to allow the police officer to testify to the “nature and extent of injury,” if any, and that no one was injured, would be in violation of the rule of evidence as to matters of opinion, but upon close analysis it is found that, when legally considered, all that was stated on the subject of injury were matters óf fact.

In City of Aurora v. Hillman, 90 Ill. 61, the court, in passing upon the question: “State whether or not, from what you saw at this time, Hillman and Moreau, or either of them, was, in your opinion, under the influence of liquor,” used the following language: “Intoxication or drunkenness is a fact which may be proven as other facts are proven. A witness, by observation and by the exercise of his perceptive faculties, his five senses, can learn and know facts, and such facts he may state. * # * Facts which are latent in themselves, and only discoverable by way of appearances more or less symptomatic of the existence of the main fact, may, from their very nature, be shown by the opinions of witnesses as to the existence of such appearances or symptoms. Sanity, intoxication, the state of health or of the affections, are facts of this character. ’ ’

In West Chicago St. Ry. Co. v. Fishman, 169 Ill. 196, where the question and answer were, “How did you find him,” “I found him very ill,” the court said: “Witnesses not experts are, however, allowed to express opinions when the subject-matter to which the testimony relates is. such in its nature it cannot be reproduced and transcribed to the jury precisely as it happened at the time. Opinions may be given by non-expert witnesses as to the state of health, hearing or eyesight of another, or ability of another to work or walk or use his arms and legs naturally, or whether such other is apparently suffering pain, or is unconscious, in possession of his or her mental faculties, intoxicated, excited, calm, etc.”

From the reasoning of. the courts, therefore, upon, evidentiary situations analogous to the one involved in the instant case, it follows that the statement of the witness that no one was injured, when legally considered, was competent as a statement of fact. Certainly, it would be hypercritical, and a too rigorous interpretation of the opinion rule as to nonexperts to exclude such evidence.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Gustavus P. Norin, Appellee, v. Scheldt Manufacturing Company et al., on appeal of Scheldt Manufacturing Company, Appellant.
    Gen. No. 25,362.
    1. Malicious prosecution, § 1

      —when action will lie. An action will lie for malicious prosecution of bankruptcy proceedings, as an exception to the rule that an action for malicious prosecution of a civil suit without probable cause will not lie where the process is by summons only unaccompanied by the arrest of the person or seizure of his property.
    2. Malicious prosecution, § 13*—when advice of counsel is no defense. Acting on the advice of- counsel was no defense: in a malicious prosecution suit for malicious prosecution of bankruptcy proceedings, where the evidence tended to show that defendant knew that plaintiff was not bankrupt and that his attorney was advised before the petition was filed that plaintiff was worth over $50,000 in excess of his debts, had money in the bank and would deposit the amount claimed in any bank to await the outcome of any suit defendant might bring to collect plaintiff’s claim.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Spencer Ward, for appellant.
    E. W. Bice, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

Gustavus P. Norin brought this suit against the Scheldt Manufacturing Company, a corporation, and other defendants to recover for a malicious prosecution. There was a verdict and judgment in his favor for $750, to reverse which defendant, Scheldt Manufacturing Company, prosecutes this appeal. The basis of plaintiff’s claim is that the defendant maliciously and' without probable cause filed an involuntary petition against him in the United States District Court seeking to have him declared a bankrupt.

The record discloses that plaintiff for a number of years had been a building contractor and was also engaged in the real estate business; that in the prosecution of his work he had purchased building materials from defendant company for a number of years; that defendant claimed plaintiff owed it a balance of about $556, the correctness of which plaintiff disputed and refused to pay more than $350, which defendant refused to accept. The evidence also tends to show that plaintiff and'the secretary of defendant company were owners of stock in the Realty Equity Company, a corporation organized with a capital stock of $25,000, represented by 250 shares of the par value of $100 per share, of which plaintiff had subscribed and paid for 126 shares, and at the time in question plaintiff was the owner of 130 shares; that Scheldt, the secretary of the defendant company, owned 25 shares of the stock and was a director of the company; that the company owned some real estate which was in the name of plaintiff, and that on or about October 1, 1917, Norin conveyed this real estate together with other real estate that belonged to him to Daniel M. Heaiy, his attorney; that afterwards defendant told plaintiff that unless its bill of $556 was paid, it would institute bankruptcy proceedings against him as plaintiff had ■transferred all of his property to Heaiy. The bill not having been paid, on January 31,1918, defendant filed an involuntary petition in bankruptcy seeking to have plaintiff adjudged a bankrupt.

Evidence was introduced on behalf of plaintiff to the effect that when he was threatened with the bankruptcy proceeding he took the matter up with his lawyer, Heaiy, and that Heaiy called up defendant’s lawyer and told him that he had heard of the threatened bankruptcy proceeding and that there was no ground for such action as plaintiff was worth $50,000 or $60,000; that he had advised plaintiff who was then at his office to call on defendant’s counsel and tender him $350 in payment; that if this was not accepted plaintiff would deposit in any bank in Chicago the amount defendant claimed to await the outcome of any suit defendant might care to bring in any court where the amount plaintiff owed defendant could be determined; that on the same day plaintiff called on defendant’s counsel, tendered him the $350 and told him that he had about $1,000 on deposit in the State Bank of Chicago and that he would deposit the amount defendant claimed in any bank in Chicago to guarantee defendant in any judgment it might recover against him on the account; that this proposition was refused. There was further evidence on behalf of plaintiff tending to show that he owned 130 shares of stock in the Eealty Equity Company at the time of filing the bankruptcy petition, which shares were worth $108 per share; that he had some other real property in Minnesota and Indiana, and other equities; that although defendant well knew where plaintiff lived and where he had his business yet the correct address was not given to the United States Marshal in the bankruptcy proceeding and the process there was returned “not found,” and afterwards publication made upon the affidavit of one of defendant’s counsel who there stated that he was of opinion that plaintiff was concealing himself for the purpose of evading service; that thereafter plaintiff was served in the bankruptcy proceeding by publication and defaulted, and an order entered adjudicating him a bankrupt; that upon discovering this he went into the bankruptcy court, had the default set aside, and a hearing on the merits of the petition was had before Special Master Wean; that evidence was there introduced showing that plaintiff was solvent and defendant’s counsel there admitted of record that defendant was without evidence to rebut the fact of solvency established by plaintiff. Thereupon the banlcruptey proceeding was dismissed. Subsequently this suit was brought.

On behalf of defendant the evidence tends to show that there was no dispute about the amount of the bill defendant claimed plaintiff owed but that plaintiff stated that he could not pay it for the reason that he did not then have the money. Defendant also offered evidence tending to show that it had presented all the facts pertaining to the controversy fully and fairly to its counsel who recommended that the bankruptcy petition be filed, and other evidence to the effect that defendant acted in good faith in believing that plaintiff was insolvent.

Defendant contends that an action for malicious prosecution of a civil suit without probable cause will not lie where the process in the civil suit is by summons only unaccompanied by arrest of the person or seizure of his property. In support of this the case of Smith v. Michigan Buggy Co., 175 Ill. 619, and other cases are cited. In the Smith case the Michigan Buggy Company, a Michigan corporation, brought suit against Smith to recover damages for fraudulent representations made by him in inducing it to employ him as a salesman, that he had represented that he had sold for another company about $60,000 worth of buggies each year for the two preceding years; that on such representations he was employed, and that these representations were knowingly false. There was a verdict in that case in favor of Smith who then brought a suit in the circuit court of Cook county to recover damages ,for such malicious prosecution. The court held the action would not lie and said (p. 627): “We are of the opinion, and so hold, that an action for the malicious prosecution of a civil suit without probable cause will not lie where the process in the suit so prosecuted is i by summons only, and is not accompanied by the arrest of the person or seizure of the property, or other special injury not necessarily resulting in all suits prosecuted to recover for like causes of action.” In that case our Supreme Court said that there was a contrariety of opinion on this question, but after a careful review of the authorities, the rule above was announced as the law of this State.

In the bankruptcy proceeding, as a result of which the instant case was brought, there vras no arrest of plaintiff nor a seizure of his property, and unless it can be said that plaintiff suffered “some special injury not necessarily resulting in all suits brought to recover for like causes of action,” the instant case will not lie. Does a proceeding in bankruptcy come within the exception quoted? In 4 Sutherland on Damages (4th Ed.), sec. 1235, the author says: “The malicious prosecution, without probable cause, of civil suits involving arrest, attachment, sequestration or other interference with person or property, or which is the cause of any special grievance or injury; will, according to the general current of authority, give a right of action. The same has been held of a proceeding to have a person declared insane or bankrupt without probable cause.’’ 1 Cooley on Torts (3rd Ed.), it is said (p. 345): “In some cases an action may be maintained for the malicious prosecution of a civil suit, but the authorities are not entirely agreed what cases are embraced within the rule. The case of the malicious institution of proceedings in bankruptcy is undoubtedly one. If these are instituted maliciously, and without probable cause, and terminate without an adjudication of bankruptcy, an action will lie for the damages sustained.” In King v. D. Sullivan & Co, (Tex. Civ. App.), 92 S. W. 51, although declaring that the rule in Texas is that ari action for the malicious prosecution of a civil suit without probable cause will not lie where there was no arrest of the person or •seizure of"the property (the same as in this State), yet it was held that such an action might be maintained for the malicious institution of a bankruptcy proceeding. In the case of Wilkinson v. GoodfellowBrooks Shoe Co., 141 Fed. 218, it was held that an action for malicious prosecution will lie for the institution of a proceeding in bankruptcy without probable cause and with malicious intent although unaccompanied by actual seizure of the bankrupt’s property. The court there said: “In my opinion, a bankruptcy proceeding cannot be said to be an ordinary civil suit. It is sui generis, and it is far reaching and drastic in its effects. Whether accompanied by actual seizure of the bankrupt’s property or not, it places an embargo on his right to dispose of his property and his business generally. No prudent person will buy from him, and no prudent person will sell anything to him on credit, even if security is offered, because all transactions between the bankrupt and third persons after the petition in bankruptcy has been filed are liable to be investigated, reviewed, set aside or controlled as to their validity and effect in case of an adjudication. ’ ’

From the foregoing authorities we are of the opinion that by the institution of the bankruptcy proceedings plaintiff suffered special injury not necessarily resulting in other classes of civil actions, and the bankruptcy proceedings being instituted maliciously and without probable cause, plaintiff was entitled to recover.

Defendant next contends that the judgment is wrong for the reason that it acted on the advice of counsel after laying all of the facts fully and fairly before him and that he recommended that bankruptcy proceedings be instituted. The evidence, however, tends to show that defendant knew that plaintiff was not insolvent; that he held a number of shares of stock in the Realty Equity Company, and further there is direct evidence tending to show that defendant’s counsel was advised before the petition was filed that plaintiff was worth $50,000 or $60,000 above his debts, that he was not insolvent, that he had money in the bank, and that he would deposit the amount claimed in any bank, to await the outcome of any suit defendant might bring to collect its claim. This question was submitted under proper instructions to the jury. They found in favor of the plaintiff and we think this finding is fully warranted by the evidence. -Indeed, no argument is madé" that the verdict in this regard is against the manifest weight of the evidence.

It is also contended that the bankruptcy proceeding was dismissed by agreement of the parties and that this barred the right of action sought to be enforced in the instant case. We think this is not borne out by the record as' it undisputably shows that plaintiff proved at the hearing before the special master on the petition that he was solvent, and defendant there admitted that it had no evidence to the contrary. Of course, there was nothing to do but dismiss the proceeding.

It is further argued that no malice was shown in the institution of the bankruptcy proceeding and that defendant had probable cause for believing plaintiff was insolvent. From what we have said we think it is obvious that the proceeding was maliciously brought and without reasonable cause to believe plaintiff was insolvent. According to defendant’s own testimony, there was only a difference between them of about $200, and defendant well knew, as the jury found, that there was no cause to believe plaintiff was insolvent.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Taylor, P. J. and Thomson, J., concur.


author: Mr. Presiding Justice Holdom

text:
    Edith LaMont Wheeler Caldwell Chapman et al., Appellants, v. Northern Trust Company, Trustee under last Will and Testament of Louise C. Bigelow, Deceased, Appellee.
    Gen. No. 26,682.
    1. Judgment, § 1

      —what is effect of statutes as to judgments and orders. As a general proposition all. orders, judgments and decrees are made in view of the statutory law, if there be any, governing or regulating the proceeding in which they are entered.
    2. Appeal and errob, § 271*—when decree is final. A decree was not provisional or conditional but final and subject to review, notwithstanding that certain defendants domiciled in Germany and Austria, as to whom it was claimed that by reason of a state of war still technically existing with those countries, the chancery court did not obtain jurisdiction in virtue of the 3-year limitation in section 19 of the Chancery Act (J. & A. f 899), and, that such court could not obtain jurisdiction until the war ceased.
    3. War, § 6*—what is effect of domicile of alien enemies as to civil remedies. No alien enemy can, during the existence of a state of war, obstruct, by his absence in enemy country, the operation of our laws as to the rights of citizens domiciled within the State, but such citizens may invoke such laws and enforce judgments and decrees relating to them, subject to the right of legal challenge when peace has been restored.
    4. Judgment, § 6*—what is effect of decree as to protection of trustee thereunder. A trustee would be protected in making distribution in faith of the verity of a decree while it remained in force and unreversed, notwithstanding there were defendants who were served by publication who had preserved to them their right to he heard to contest the bill within the 3 years given them for that purpose by section 19 of the Chancery Act (J. & A. If 899), and might do so successfully.
    5. Judgment, § 6*—when decree protects person paying money thereunder. A decree is a protection to a person paying out money in pursuance of its directions.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGooett, Judge, presiding. Heard in this court at the October term, 1920.
    Reversed and remanded with directions.
    Opinion filed November 22, 1920.

      Fisher, Boyden, Kales & Bell, for appellants.
    Walter B. Wolf, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause comes to this court by transfer from the Supreme Court, to which it was taken by appeal, the Supreme Court holding that , no freehold was involved and that no other ground for appealing to that court appeared.

The case will be found reported in 294 Ill. 383, where a sufficient statement of the case appears and to which we refer without repeating the same in this opinion.

The question presented for our solution is clearly stated by the Supreme Court in case supra in the following apt language:

“The question raised by this case is whether it is the duty of the trustee now to obey the order to distribute the income from one-third of the trust estate to the children of Josephine, and whether it would be protected'in doing so if, within the 3 years allowed, by the statute, the decree should be set aside and a different construction given the will.”

The Supreme Court opinion further states that:

“Appellants contend the trustee would be protected in obeying the decree, and that if it should be later determined that the decree was erroneous the remedy of those injured by paying income pursuant to the original decree would be against those, only, who received money or property under it which they were not entitled to. Appellee contends, and the chancellor sustained its contention, that section 19 is as much a part of the decree uf April 6, 1920, as if incorporated in the decree, and that as to nonresident defendants served by publication, only, the decree was provisional and will not become final until the expiration of 3 years, and would afford no protection to the trustee in distributing the income until it becomes final.”

And further says that “the controversy is whether they can compel the trustee to pay it to them now or whether they must wait 3 years for it.”

The question as thus presented for our decision is by no means free from difficulty. The precise question before us has not in its present form been directly passed upon by our Supreme Court. We are therefore left to make application of the law, as it has been expounded in jurisdictions without this State, and particularly to determine how far, if at all, the English chancery cases and the rules in such cases laid down are controlling in this case.

Counsel for the trustee insists that section 19 of our Chancery Act (J. & A. jf 899) providing for bringing in nonresident parties by publication must in contemplation of law be treated as if embraced in the decree, in which contention the learned chancellor concurred. While this contention may be correct, it by no manner of means follows that it is decisive of the dispute in the case. It may be stated as a general proposition that all orders, judgments and decrees are made in view of the statutory law, if there be any, governing or regulating the proceeding in which they are entered.

It is likewise urged that in view of section 19, supra, the decree of April 6, 1920, ordering the trustee to pay certain income to complainants, has not the essence of finality, but until the 3-year limitation in section 19 expires, it is in suspension and not enforceable ^gainst the trustee; or, in other words, until such time elapses the decree is nisi and not absolute.

The trustee raises another rather novel question, unsupported.by any authority in this State, which is, that as to the defendants domiciled in Germany and Austria, owing to a state of war existing between those countries and ours and which in a technical sense still continues, the provision of section 12 of the Act, supra (J. & A. 892), was impossible of performance by reason of noncommunication by mail between these countries, depriving such defendants of access to our courts; that consequently the chancery court did not acquire jurisdiction over them in virtue of section 19, su/pra, and cannot obtain jurisdiction until after such state of war ceases.

This latter proposition, lacking binding authority in this State, we must deal with as one of first impression.

We cannot conceive it to be the law anywhere that the rights of a citizen shall be held in suspension and unenforceable in our courts, because some alien enemies, domiciled within enemy territory, and therefore not accessible for the service of process, may have some interest subject to adjudication in our courts. If such were the law it would work an injustice to our own citizens for the benefit of the country’s enemies by depriving the citizen of the benefit of the remedial relief to which he may be entitled by the law of the State. It would seem consistent and logical'to hold, as we do, that no alien enemy can, during the existence of a state of war, obstruct, by his absence in enemy country, the operation of our laws as to the rights of citizens domiciled within the State, but that such citizens may invoke such laws and enforce judgments and decrees relating to them, subject to the right of legal challenge when peace is restored between the warring countries.

It is manifest that the decree of April 6, 1920, was not provisional or conditional, but final, and subject to review on appeal or writ of error.

In a measure divorce decrees entered on publication notice to the defendant are in their nature nisi until the 3-year limit of the right to appear and contest the decree as provided in section 19, supra, has passed, when for the first time such decree becomes absolute. Divorce decrees are not comparable to the April 6, 1920, decree in this case. In divorce case's the State is a third party, and persons so divorced who proceed to treat the decree as final by again marrying do so at their peril.

We will now attempt to decide the main question submitted, as to whether the trustee, should it obey, the decree and pay out the income as by that decree directed, would be protected against a successful attack by nonresident defendants not personally served with process in a proceeding contemplated by section 19 of the Chancery Act, supra.

While the defendants served by publication have preserved to them their right to be heard to contest the bill within the 3 years given them for that purpose by section 19, supra, and may do so successfully, would the trustee be protected for payments made by it in faith of the verity of the decree while it remained in force and unreversed? Or does the doctrine laid down in Lawrence v. Lawrence, 73 Ill. 577; Southern Bank of St. Louis v. Humphreys, 47 Ill. 227, and other like cases in this State apply to the trustee defendant so that it would be liable to the defendants served by publication for moneys paid out under the decree should any of them succeed in an attack upon the decree? In such a proceeding,' should the decree be reversed or varied, would the defendant who prevailed be relegated for recovery to the party to whom the trustee had made payment, or to the trustee?

The distinction is attempted to be made in this regard between a proceeding in rem and one in personam, and it is contended that in the instant case the proceeding culminating in "the decree of April 6, 1920, is in rem.

In this State the English chancery practice is the rule of procedure in equity courts. It is therefore not inappropriate to apply such practice to the decision of equity cases within this jurisdiction, and, unless the same has been changed by statute or the dicta of our courts, should be followed as binding authority. In 2 Perry on Trusts (6th Ed.), par. 928, this text-writer states the doctrine thus:

“The trustee himself will be protected by the decree of any court having jurisdiction, and exercising the jurisdiction regularly upon proper notice given. * * * The suit in such cases may be instituted by the trustee himself asking for the direction of the court; or parties claiming to be the cestuis que trust may institute the suit against the trustee, and others claiming to be the cestuis que trust. * * * But if parties receive the money who are not entitled, they are not protected, although the trustee paid the money to them under a decree of the court, and is protected personally by the decree. In such cases the party really entitled, if he was not a party to the previous suit, and bound by the decree, may have his suit against the person to whom the money was paid, and he will be held as a quasi trustee in favor of the person who shows an absolute right to receive the money. ’ ’

2 Daniell’s P. & P. (1st Ed.) 859-860, states the rule of the court to substantially the same effect as Perry, supra, and in treating of the remedy of those claiming dehors the decree for moneys paid to others, and which they claim as of right to be theirs, states that:

“Such a suit, however, can only, after a distribution under a decree, be filed against the parties who have partaken of the distribution; it cannot be filed against the executor, or administrator, or other person who has acted under the direction of the court in distributing the fund, for the court will not permit a party, who has acted in pursuance of its decree in distributing a fund, to be afterwards charged for what he has done pursuant to its directions.”

This rule is adhered to in the 8th (1914) edition of Daniell’s supra. Supporting this text is Farrell v. Smith,. 2 Ball & Beatty 337, where a party was brought in by publication pursuant to the rules of the court, but did not appear.- A decree of distribution was rendered and made under it. Subsequently a beneficiary under the will, who was not a party to the suit in which the decree was entered, had not appeared and was not guilty of laches, filed a bill ag'ainst the executor of the will and claimed her distributive share, to which it was conceded she was entitled. However, the Lord Chancellor dismissed the bill, saying:

“It appears to me that nothing could possibly be more injurious to the administration of justice in this court than to g*rant the relief sought in this case by the plaintiff; indeed I have never heard of a bill like the present, and I am sure no precedent can be produced in support of it; for what executor would be safe, if he were liable to answer for a distribution of assets, made under a decree of the court? The bill should have been to reverse the decree * * * as erroneous; for it has been brought, not in fact to set aside what the executor has done, but what the court has done in the usual course of proceeding, acting in the best possible manner. * * * In Pooley v. Ray, Lord Cowper puts the case of an executor, who having obtained a decree for a sum of money due to his testator, paid it away amongst the creditors, and on an appeal the decree was reversed; if the defendant had delayed the appeal, Lord Cowper conceived that the executor would not be liable to repay the money. How much stronger is the present case, where the payment of the money has not been the act of the executor, but of the court. * * * Where this court has taken the management of assets from the executor into its own hands, it will not permit him to be charged for what has been done in pursuance of its directions.”

This principle was followed in Brooks v. Reynolds, 1 Brown’s Chancery Cases, 183; 2 Dick. 603, in which an executor after distributing the estate under the decree was sued at law by a creditor, of which suit he sought to restrain the prosecution, and Lord Thurlow said:

‘‘ The reason why the injunction is granted is this— that this court having taken the fund into its own hands, will not permit the executor to be pursued at law. ’ ’

And in Kenyon v. Worthington, 2 Dick. 668, Lord Thurlow said:

“The court will surely protect the executor or administrator in obeying its decrees.”

Gillespie v. Alexander, 3 Russ. Ch. 130, was the case of a creditor who attempted to prove his claim after a decree of distribution had been entered, and after the executor had paid out the residue. The court held that while the creditor was not without remedy to sue the legatees and bring back the fund, he could not affect the legatees except by suit, and Lord Eldon stated that “he cannot affect the executor at all.”

In Foster v. M’Mahon, 11 Irish Eq. Rep. 287, where it was held that a bill by a distributee not a party to the previous suit might be had against the parties to whom distribution had been made under the former decree for a refund, the Lord Chancellor said:

“It is then urged that the plaintiff is seeking to overturn what has been done in another court, and that that would be unjust to those who have acted under the supposition that what was done was right. That would be of force if the plaintiff was going personally against the representative of Charles M’Mahon, for if you allow a trustee or executor to act under a decree of a competent court you cannot make him responsible for what he has done under that decree. But it is a different thing as against a party who gets money which was not his or hers, and who remains still liable if he takes it.”

Loring v. Steineman, 1 Metc. (Mass.) 204, announces the same doctrine as cases supra. Exton v. Zule, 14 N. J. Eq. 501, in which inter alia the court said:

“It must be borne in mind that, though the decree for distribution is a judicial determination of the rights of the parties, the proceeding to obtain it is not in the nature of a suit between party and party, in which one seeks to recover a right withheld by the other. There is no actor et reus, plaintiff and defendant in the proceeding. It is analogous in its character to a proceeding in admiralty or other proceeding m rem, in which a decision between the parties before the court settles the rights, of all the parties to the property in question. Scott v. Shearman, 2 Bl. Rep. 979; Elkins v. Smith, Raym. 336; 13 Vin. Ab. 95, Evidence A, b. 22; Gelston v. Hoyt, 13 Johns. (N. Y.) 579; Geyer v. Aguilar, 7 D. & E. 796; Loring v. Steineman, 1 Metc. (Mass.) 208.”

This case follows the doctrine announced in cases supra that the decree is a protection to a person paying out money in pursuance of its directions. Sayre v. Sayre, 16 N. J. Eq. 505.

The course of equity procedure in England regarding trusts has been materially changed by an act of the English Parliament by what is known as the Trustee’s Act of 1893, under section 42 of which a trustee haled into court may bring the trust fund into court and be discharged from further responsibility. However salutary this act may be, it has no bearing upon the procedure in trust matters in our equity courts, as while that act changes equity procedure in England, it does not even remotely disturb the usual course which prior to that act obtained in England, and still does obtain in this State. The decree of the chancellor is just as much of a protection to the trustee as if the same had been affirmed upon an appeal to the Supreme Court. The reason for this is made clear in Rissman v. Wierth, 244 Ill. 95, in which the decree was affirmed by the Supreme Court, but afterwards opened under section 19, supra, and a decree entered contrary to the former decree, and which latter decree was subsequently also affirmed by the Supreme Court.

Furthermore, it is. not ethically the duty of the trustee to appeal. We do not think it is the policy of the law in the interest of parties nonresident belligerents to restrain the courts from giving relief in an appropriate action to a citizen resident within such jurisdiction and thereby to postpone indefinitely in some instances the assertion of and procuring from the domestic courts an adjudication of such rights.

The contention of the trustee in this regard would, if made effective in the instant case if carried to its logical conclusion, bring about a long postponement of the rights of the parties adjudged to be entitled to certain portions of the income from the trust estate and deprive them of reaping any benefit under the decree for years to come. Owing to a state of war existing between this country and Germany and Austria, the defendants resident in the two latter countries and against whom publication has been had, could not be proceeded against until that state of war is ended and peace declared. Then, when our courts are made accessible to the residents of countries at war with us, they may proceed with the cause. After decree the defendants served by publication would have 3 years under section 19, supra, to appear and contest the bill in the same manner as if a decree had not been rendered. Some of such defendants are minors. The years of their minority yet remaining would to that extent be added to the 3-year period provided by section 19, supra. During all of such time the resident citizen would be deprived of the right of enforcing his claim to property situated within the jurisdiction of the court and the several sums due him' be allowed to accumulate until such time as the state of war ceased and some minor, brought into the courts by publication, attains his majority with 3 years added in which to appear and contest the verities of the proceeding.

If such be the law, which hardly seems possible, the rights of such nonresident persons would seem to be unduly protected, while the rights of the resident citizen would be unduly neglected and greatly impaired.

We hold that the proceeding terminating in the decree of April 6,1920, was one in rem and that the trust fund thereby was brought into the chancery court for such order and disposition as it might by decree direct, and that the decree is binding upon the trustee and is a protection to the trustee for any money which it may lawfully pay out to the parties as in said decree directed; and, as said in Wilson v. Board of Regents, 46 Colo. 100:

“The order of the court below is a full and complete protection to the executor for whatever he may do, by way of disposition of the property, within its terms.” Merrick v. Kennedy, 46 Neb. 264.

The rule regarding actions in rem is of equal application to executors, administrators, trustees, and others who act in a fiduciary capacity and are in law trustees of the funds and property which they hold to be distributed to the beneficiaries under the trusts under which such property may be held.

It is our opinion that the complainants are entitled to the relief prayed, and the decree of the circuit court is therefore reversed and the cause is remanded to that court with directions to enter a decree granting the relief prayed for in the bill and directing the trustee,

The Northern Trust Company, to forthwith pay the income from the Bigelow estate as directed by the decree of April 6, 1920.

Reversed and remanded with direction's.

Dever and MoSubely, JJ., concur.


author: Mr. Presiding Justice Graves

text:
    Cecilia Grace Gehlbach, Appellee, v. Charles J. Gehlbach, Appellant.
    1. Divorce, § 110

      —when alimony may he increased. Alimony was properly increased where the increase was not more than proportionate to the increased cost of living and the increased returns from farming enterprises, where defendant’s income was chiefly from a farm.
    2. Divorce, § 110*—when alimony may he increased because of additional medical expenses. A decree for alimony was properly modified so as to require the defendant to pay for unexpected expense in relation to medical attention to the children.
    3. Appeal and error, § 499*-—when record must show value of solicitor’s fees. Allowance of solicitor’s fees on the hearing of a motion for increase of alimony and on appeal was set aside in the absence of proof of the value of such services in the record, or a finding in the decree that such evidence was introduced and that, upon a consideration thereof, the court found that such fees were reasonable, usual and customary.
    Appeal from the Circuit Court .of Logan county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed in part and reversed in part.
    Opinion filed April 27, 1920.
    Rehearing denied October 20, 1920.

      H. F. Trapp, for appellant.
    H. W. Masters, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

The parties to this case were divorced for the fault of appellant. A decree was entered requiring appellant to pay to appellee $120 per month for 6 months commencing July 1, 1916, $130 per month for the entire year of 1917 and $135 per month for the year 1918, for her support and maintenance and for the support and maintenance of the three minor daughters of the parties. Certain other provisions were made in the decree by way of alimony for the benefit of appellee and the minor children in regard to the use of the home by them and its repair and the payment of taxes on it by appellant. At the May term, 1919, of the circuit court of Logan county appellee filed her motion to redocket the original case and her petition to modify the original decree for alimony by increasing the monthly stipend. Appellant filed his answer to the petition. After a full hearing it was ordered that the monthly stipend be increased from $135 per month to $150 per month to take effect July 1, 1919, that appellant pay a hospital bill incurred by the oldest daughter amounting to about $60, that he pay appellee $100 for her solicitor’s fee in the matter of the proceeding to increase alimony, and in case of an appeal that he pay her a further sum of $100 for her solicitor’s fees in the matter of such appeal. In other respects the original decree for alimony remained as it was.

The evidence tended to show that the income of appellant was chiefly from a farm of 460 acres; that the price of farm products as well as the cost of living had advanced since the original decree for alimony was entered; that since that time appellant had ceased to be county judge and was again entering the practice of the law; that appellant had remarried and had spent the winter in California with his new wife, made a pleasure trip to Cuba and Florida with her and bought her a diamond ring and purchased a new automobile for which he paid $1,425; that appellee had been put to unusual and unexpected expense in caring for her children; that the oldest daughter had had her arm broken twice and the youngest one had had her tonsils and adenoids removed.

So far as the increase in the monthly alimony from $135 to $150 is concerned, it is to say the least not more than proportionate to increase in the cost of living and the increased returns from farming enterprises, and we see no reason for holding that the order for such increase was not entirely justified by the evidence. Neither do we see any reason why he should not pay the $60 hospital bill, and the decree is affirmed in regard to those matters.

The allowance of $100 as alimony to pay appellee’s solicitor’s fees on the hearing of the motion for increase of alimony and of $100 to pay her solicitor’s fees on appeal, while proper on a proper state of facts (Stillman v. Stillman, 99 Ill. 196; Czarra v. Czarra, 128 Ill. App. 430), cannot be upheld in this case. The rule of law is that the value of such services must be established by proof and that such proof must be preserved in the record, or the decree must show that such evidence was in fact introduced, and that upon a consideration thereof the court found that such fees were reasonable, customary and usual fees for such services. Garrett v. Garrett, 160 Ill. App. 512; Glynn v. Glynn, 139 Ill. App. 185; Cash v. Cash, 180 Ill. App. 37; McMullen v, Reynolds, 209 Ill. 504; Hunter v. Hunter, 121 Ill. App. 388. There is neither evidence in this record nor finding in this decree as to what the services rendered and to be rendered for which the two $100 items were allowed were reasonably, customarily and ordinarily worth in Logan county.

The decree is therefore reversed as to the two items of $100 each allowed for attorney’s fees and cause remanded as to said attorney’s fees and is affirmed in all other respects.

Affirmed in part and reversed and remanded in part.


author: Mr. Presiding Justice Waggoner

text:
    DeWitt W. Smith, Individually and for use of Inter-Ocean Casualty Company, Appellee, v. Allemannia Fire Insurance Company of Pittsburg et al., Appellants.
    1. Insurance, § 222

      —what is effect of representation of value where loss occurs subsequently. A representation by agents of fire insurance companies, as to the value of a building, made in June, 1916, could not operate as a representation of its value at the time of a fire in March, 1918.
    2. Equity, § 59*—when equity has jurisdiction because of multiplicity of suits. Equity had jurisdiction to prevent a multiplicity of suits in a suit on twenty-two fire insurance policies issued to complainant by seventeen defendants, by reason of a mere community of interest in the questions of law and fact involved in the general controversy.
    3. Injunction, § 20*—when equity has no jurisdiction. Equity does not have jurisdiction of a suit sought to be maintained by fire insurance companies to enjoin the assured from maintaining actions - at law.
    4. Insurance, § 426*—how value of property destroyed is determined. The market value of a building was not the test in determining the amount, of recovery for the destruction of a building, under a clause providing that the companies should not be liable beyond the actual cost value of the insured property with proper deductions for depreciation.
    5. Insurance, § 426*—what is actual cash value of property destroyed. Actual cash value of an insured building means reproduction value less depreciation for age, and not market value.

      6. Costs, § 79

      —when costs on appeal may he apportioned. Where a decree against seventeen fire insurance companies provided for a joint and several appeal, and each defendant prosecuted an appeal and filed a record, and then all asked to have the appeal consolidated and this was done, appellee, on reversal, was required to pay the cost of only the first appeal, and appellants the cost of the remaining appeals.
    Appeal from the Circuit Court of Sangamon county; the Hon. Nobman L. Jones, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded with directions.
    Opinion filed April 27, 1920.
    Refiled October 5, 1920.
    Bates, Hicks & Folonie, Seymour Edgerton and Patton & Patton, for appellants.
    George B. Gillespie, Conkling & Irwin and Clayton J. Barber, for appellee.

      See Illinois Notes Digest, Vole, XI to XV, and Cumulative Quarterly, same tupie and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellee, DeWitt W. Smith, filed a bill in chancery to recover on twenty-two fire insurance policies issued to him by the seventeen defendants. The amounts of the policies aggregated $86,000. The court awarded him $78,409.26, and entered a decree apportioning that amount against the several appellants under the different policies.

An entry of appearance and disclaimer of the Woodmen’s Casualty Company, Inter-Ocean Life and Casualty Company, and the Inter-Ocean Casualty Company has been filed thereby eliminating the question raised relative to a want of necessary parties.

The insured property in question consisted of a seven-story and basement store and office building, seventy by one hundred and ten feet, with a two-story superstructure that was twenty-eight by forty feet, and with two additions to the main building of two stories each, one being called the Annex and the other the Addition. The building is situated at the corner of Fourth and Monroe Streets in the City of Springfield, Illinois, and is known as the DeWitt Smith-building. On March 12,1918, a fire occurred in the building, which destroyed the eighth and • ninth story superstructure, badly damaged the sixth and seventh floors, and burned at places through the ceiling of the fifth floor. The remaining portion of the main building was damaged by water.

Appellee claimed a loss of $87,809.40 on a building. which he contends was worth'from $80,000 to $90,Q00. Appellants claimed that the building was worth $150,000 and that the damages done to it amounted to $52,039.96. The insurance policies all contained reduced rate average clauses, four of them at eighty per cent, and the remainder of them at ninety per cent. Appellants further claimed that, under these facts, they were not liable for more than $30,000 of the loss. With this disagreement, between the parties, in reference to the valúe of the building and the amount of insurance for which the companies were liable, a bill in equity was filed, by appellee, against all the appellants.

Appellants contend that a court of equity is without jurisdiction in this cause, and should have dismissed the bill for that reason. Appellee maintains that the court has jurisdiction, for the purpose of preventing a multiplicity of suits, to apportion the amount of the loss among the several companies, and to enforce an estoppel to dispute the valuation placed on the building.

The claim of an estoppel grows out of the contention of the appellee that in June, 1916, Dr. John W. Scott and John Lamphier, agents representing some of the appellants, solicited him to increase his insurance on tiie property in question, and told appellee that by having a 90 per cent rate clause in his policy he could affect an economy in the amount of premium paid as compared with the amount of the insurance carried. They called appellee’s attention to a settlement of a small loss previously sustained, and stated that in the adjustment of such loss the insurance companies valued the property at $90,000, and that if appellee would carry $81,000 insurance, he would be fully indemnified up to $81,000. Later in the argument of the case appellee abandons the position taken in regard to an estoppel to dispute the value of the building. Appellee, in his brief, says: “The court below held that the value of the building was showm by the testimony to be not more than ten per cent in excess of the amount of insurance carried, but did not base that conclusion on any estoppel, and applied the valuation equally to those companies against whom complainant sought to establish an estoppel and those to whom such estoppel would not apply. So it is wholly immaterial whether this evidence was in the record or not. Clearly the court did not consider it for the condition of the proof was such that he had no occasion to apply the doctrine of estoppel.” This statement of appellee is correct, and the admission therein contained eliminates the question of estoppel. Further, a representation as to the value of the building in June, 1916, could not operate as a representation' of the value of the building at the time of the fire in March, 1918.

Appellee contends that a mere community of interest in the question of law and fact involved in the general controversy is sufficient to give a court of equity jurisdiction to prevent a multiplicity of suits, and in support of such contention cites Pomeroy’s Equity Jurisprudence, secs. 268-269. It is true that this author takes this view of the matter, arid cites many authorities in support of it. His position is fully discussed and criticized in Tribette v. Illinois Cent. R. Co., 70 Miss. 182, which is the leading case on the subject holding a contrary view. While there may have been some temporary departure from the Tribeite case, the rule therein announced is subsequently adhered to in Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1. To enter into a general discussion of the matter would be like carrying coals to Newcastle. We can add nothing to either of the two views so ably 'stated by these authorities. After a careful consideration of the matter we are constrained to follow the rule announced by Pomeroy, believing that it is supported by the decided weight of authority, and hold that the chancellor did not err in assuming jurisdiction of this suit. This case is to be carefully distinguished, however, from a suit sought to be maintained by insurance companies to enjoin the assured from maintaining actions at law. In such cases equity does not have jurisdiction. 10 R. C. L. p. 286, par. 30, and note 13.

As before stated, all the insurance policies on the property in question contained reduced rate average clauses, four of them at eighty and eighteen at ninety per cent. These clauses provide that the “company shall be held liable for no greater proportion of any loss than the amount hereby insured bears to ninety (or eighty) per cent of the actual cash value of the property described herein at the time when such loss sháll happen.” As a result of this clause in eighteen of such policies, if the property is not insured for at least ninety per cent of its value, the companies issuing such eighteen policies are only liable for such a proportion of the loss as the amount of insurance bears to ninety per cent of the actual cash value of the property. Under the remaining four policies, if the property be not insured for at least eighty per cent of its value, the liability of the companies issuing such last policies would be the proportion of the loss that the amount of insurance bears to eighty per cent of the actual cash value of the property. As a result of the reduced rate clause eighteen of the insurance policies, if the property was not insured for at least ninety per cent of its value, such companies would only be liable for such proportion of a loss as the amount insured bears to ninety per cent of the actual cash value of the property. The total amount of the insurance was $86,000. Hence it was imperative, in order for appellee to recover in full, that he establish that $86,000 was at least ninety per cent of the value of the property. A failure to establish such a fact would result in appellee’s being obliged to share a proportionate part of the loss. In the brief filed by appellee, he takes the position that actual cash value means the fair market value, while appellants claimed that actual cash value means reproduction value less depreciation for age, and fixed the reproduction value, less depreciation, at $150,000. The only evidence in the case of market value is the testimony of appellee’s witnesses, a majority of whom placed a value on the building of from $85,000 to $95,000, one witness placing the value a,s low as $80,000 and another at $100,000. On the other hand, when it came to the matter of valuing the destroyed and damaged parts of the building, appellee then claimed restoration or reproduction value without allowance for depreciation of the parts destroyed. The most extravagant estimate possible under the evidence contained in the record would not justify a claim that the damages exceeded one-half the value of the building, yet the court assessed damages to the amount of $78,409.26 on a building which appellee offered evidence of value as low as $80,000. On that basis, the remaining portions of the building, consisting of the Annex, the Addition and five stories of the main building, in the condition shown by the evidence, would be worth only $1,590.74 under appellee’s claim. Such results are absurd. It is self-evident that a theory that produces .such results is wrong in principle and that evidence offered in support of it is unworthy of consideration.

The policies further provide that the companies shall not be liable beyond the actual cash value of the property insured with proper deductions for depreciation. Cooley in his Briefs on the Law of Insurance, vol. 4, p. 3081, states the rule as follows: “If the property destroyed is a building, the measure of damages is not the market value of the building at the time of the loss, nor what some one would have paid for the building, but the actual value of the property at the time of the loss, as the insured is entitled to be indemnified for the loss sustained. The market value cannot be used as the test in determining the amount of recovery for the destruction of a building for various reasons. If there wa.s no market demand for the property so it could be sold, it would have no value, and consequently there would be no loss. A farmer might have an insured building of the value of $5,000 on a farm, and yet be held to have sustained no loss by its destruction because there was no demand for land in the location, and the farm could not have been sold. If not salable at all, it might have a value to the owner as a home for himself and family or for business purposes. Again, the market value of some buildings (as, for instance, tenement houses) may be much greater than their actual value. Besides the market value rule would render it almost, if not quite, impossible in many cases to determine the amount of a loss. A building and the land, on which it is built may have a joint market value entirely different from what the aggregate would amount to if they were to be considered 'separately and detached from each other.” The rule as announced by this writer is supported by the cases of Hegard v. California Ins. Co., 72 Cal. 535; State Ins. Co. v. Taylor, 14 Colo. 499; Aetna Ins. Co. v. Johnson, 11 Bush (Ky.) 588 (21 Am. Rep. 223); Stenzel v. Pennsylvania Fire Ins. Co., 110 La. 1019 (98 Am. St. Rep. 481).

Since it will be necessary to reverse the decree rendered in this cause, for the reason that the trial court erred in assessing the damages, it will not be necessary to consider other errors assigned. Appellee under his policies is entitled to be indemnified hence actual cash value means reproduction value less depreciation for age and not market value.

The decree provides for a joint and several appeal. Appellants each prosecuted an appeal, filed seventeen records in this court, then asked to have the appeals consolidated, and the same was done. The same end would have been accomplished by a joint appeal. The cost in the first case on the docket of this court, being No. 7033, entitled DeWitt W. Smith v. Allemannia Fire Ins. Co., should be paid by appellee, and the cost in the remaining cases by the various appellants. Motion by appellee to tax cost of additional abstract against appellants is denied.

The decree is reversed and the cause is remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions,