text:
    Fred Froemke, Appellee, v. Valentine Massman, Appellant.
    Gen. No. 24,615.
    1. Appeal and error, § 1253*—when correctness of ruling on evidence not before court on defendant’s appeal. The correctness of the ruling in a malicious prosecution case, permitting the introduction of an indorsement by a municipal judge, on a complaint charging plaintiff with theft, that the judge examined the complaint and the complainant and was satisfied there was probable cause for filing the complaint, was not before the Appellate Court in view of the verdict for plaintiff.
    2. Malicious prosecution, § 14*—when rule as to judicial determination of probable cause not applicable. The rule that the finding of the court to whom a complaint was presented that there was probable cause is a judicial determination, and a bar to a suit for malicious prosecution, in the absence of evidence that such finding was procured by fraud or upon perjured testimony, had no application where the defendant in the action in question testified without objection that at the time the judge indorsed upon the complaint in question the statement that he had examined the complaint and the complainant and was satisfied that there was probable cause, he simply read the warrant and signed it and that no statement was made to him.
    3. Malicious prosecution, § 83*—-when probable cause question for jury. The question whether the defendant in the malicious prosecution case in question had probable cause under the circumstances disclosed by the evidence to suspect plaintiff of stealing his watch as charged, was for the jury.
    4. Malicious prosecution, § 13

      —when advice of counsel no defense. Reliance on advice of counsel will not bar a recovery for malicious prosecution where the defendant was thoroughly and personally familiar with all of the facts in the case, and the advice was based upon a narration of facts thereafter testified to by defendant, and controverted by plaintiff, and which the jury by their verdict for plaintiff necessarily found to be false.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 15, 1919.

      Bice, Lowes & O’Neil, for appellant.
    Ernest C. Beniff and Hugh A. Caperton, for appellee.

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

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff brought this action to recover damages for an alleged malicious prosecution. The jury found the issues for the plaintiff and assessed his damages at $150. By this appeal the defendant seeks to reverse the judgment for that amount.

A certified copy of the original complaint was introduced in evidence, including an indorsement on said complaint signed by Judge Beckwith of the Municipal Court of Chicago, reading as follows: “I have examined the within complaint and the complainant and am satisfied there is probable cause for filing the same. Leave is hereby granted to file it and it is ordered that a warrant issue against the accused.” This indorsement was admitted over plaintiff’s objection but, in view of the verdict and judgment for the plaintiff, the correctness of the court’s ruling on that point is not before us. It is contended by the defendant, however, that the finding of the court to whom the complaint was presented, that there was probable cause, is a judicial determination of that question, and a bar to a suit for malicious prosecution, unless it be shown by the evidence that such finding was procured by fraud or upon perjured testimony, citing Thomas v. Muehlmann, 92 Ill. App. 571. "We do not consider that case in point. The defendant testified in the case at bar, without objection, that at the time Judge Beckwith signed the indorsement referred to “he simply read the warrant (complaint) as made out, and signed it. There was no statement made to him, ’ ’ by the witness or anybody else. Whatever might be said as to the effect of the order under other circumstances, it could not have the effect contended for, under the circumstances shown by the evidence referred to.

The question of whether the defendant had probable cause under the circumstances as disclosed by the evidence, to suspect the plaintiff of stealing his watch as charged, was for the jury and they have determined that question against the defendant. We are unable to say that the verdict is not supported by the evidence on that point. There is a direct conflict in the testimony as to what the circumstances were, on which the probable cause, if any, was based. The defendant testified that the plaintiff came into his offices through a large reception room and a small hall adjoining, by means of which he entered the defendant’s private office; that he passed through that room into‘the operating room where his dentist’s chair was, and from that room to a doorway leading into a laboratory where the defendant was at work, and as he reached that door the defendant looked up; that a conversation then occurred between them, and the plaintiff left.

The defendant’s vest, containing his watch and chain was hanging behind the door in his private office, the room between the hall, adjoining the reception room, and the operating room. The defendant further testified that he had occasion to get his glasses from his vest pocket a few moments before the plaintiff came in and that his watch and chain were then in his vest; that a few moments after the plaintiff went out the defendant again went to his vest and the watch and chain were gone and a small part of the latter was lying on the floor. The plaintiff’s testimony was that he did not enter either the defendant’s private office or the operating room; that the defendant “came to me from the little office,” when he (the witness) was still in the large reception room and that he (the plaintiff) was in the hallway (the witness called it an alcove) adjoining the reception room, and leading from that room to the defendant’s private office, as he talked with the defendant. If the plaintiff’s testimony as to these circumstances was true, the plaintiff was not in the room where the defendant says his vest was hanging, at any time, and, if so, the jury’s conclusion that in having the plaintiff arrested, charged with stealing his watch and chain, the defendant was without probable cause, was justified.

The defendant contends further that the judgment should be reversed because the evidence shows that he disclosed the circumstances to a lawyer and to an Assistant State’s Attorney and acted on their advice. To justify by advice of counsel the defendant must show that he stated to such counsel all the facts bearing upon the guilt or innocence of the accused in good faith. The making of an exaggerated or incorrect statement or the withholding of any material fact is inconsistent with probable cause. It is incumbent upon the defendant to show what information was given to his counsel, so that the jury may determine whether it was a full, truthful and correct statement of all the facts. 26 Cyc. 34. In this case the facts bearing upon the guilt or innocence of the accused were within the personal knowledge of the defendant. The testimony of the defendant as to what these facts were is in direct conflict with that of the plaintiff. On that conflicting testimony the jury have found the issues for the plaintiff, and we cannot say from the record that their action was against the manifest weight of the evidence. In such a situation the defendant cannot be held to have justified his prosecution of the plaintiff by showing that he consulted a lawyer and gave him the facts involved, as recited in his testimony on the witness stand. The verdict of the jury has established the fact that the defendant’s statement to his counsel was not a correct and true statement. Miles v. Walker, 66 Neb. 728; Peter son v. Toner, 80 Mich. 350. In the latter case the court says: “The defendant was a party to the occurrence (which was the basis of the alleged malicious prosecution). He knew every fact connected with it. There was no chance for him to be mistaken about the facts, nor as to which of them were material. He has told his story in this case, which, we must presume, was the same story told the prosecuting attorney. (In the case at bar the defendant testified that he gave his counsel the same facts which he testified to on the witness stand.) If the plaintiff told the truth about what occurred between these parties, the defendant’s story is false, and what he told the prosecuting attorney was false * * *. The jury must have found that the plaintiff’s story * * * was true. If it was true, then there was no probable cause for the prosecution which defendant commenced against the plaintiff, and the story he told the prosecuting attorney was wilfully false, and the advice based upon it was no defense.” The comments of the court in the case cited are applicable to the situation presented in the case at bar.

Finding no error in the record, the judgment of the Circuit Court is affirmed.

Affirmed,


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Honore Palmer and Potter Palmer, Jr., Executors, Plaintiffs in Error, v. Union Elevated Railroad Company, Defendant in Error.
    Gen. No. 23,455.
    1. Elevated bailboads, § 3*—what evidence admissible in action for damages for construction and operation of “loop.” In an action to recover damages for the construction and operation of defendant’s elevated “loop” railroad in front of the premises in question, the evidence was not required to be confined to that which pertained to the stations near or in front of the property in question, nor to the block in which such property was located; and it was proper to consider any evidence tending to show that the property had been enhanced in value by reason of the construction and operation of the railroad, and the question of benefit was not required to be limited to such block.
    2. Elevated bailboads, § 3*—when instruction properly refused in action for damages for construction and operation of “loop." In an action to recover damages for the construction and operation of defendant’s elevated “loop” railroad in front of the premises in question, an instruction was properly refused, which sought to direct the jury to exclude from their consideration such elevated travel facilities as the property enjoyed immediately prior to the construction of the loop.
    3. Courts, § 150*—when holding of Supreme Court in matter of particular instruction is binding on Appellate Court. The Appellate Court cannot hold contrary to the ruling of the Supreme Court holding an identical instruction improper.
    4. Courts, § 150

      —when instruction properly refused because held improper by Supreme Court. In an action to recover damages for' the construction and operation of defendant’s elevated “loop” railroad in front of the premises in question, an instruction was properly refused which sought to tell the jury that “the burden of showing any offset to or reduction of the amount of such damage by reason of market benefit from travel facilities furnished by the so-called ‘loop’ railroad to the premises in question was upon the defendant,” the Supreme Court having held an identical instruction improper.
    Error to the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 15, 1919.

      Oliver & Mecartney, for plaintiffs in error.
    Gardner, Foote & Burns, for defendant in error; Roger L. Foote, 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.

Bertha H. Palmer brought this action on the case against the Union Elevated Raidroad Company to recover damages for the defendant’s having constructed and put into operation the elevated “loop” railroad in front of her premises. The case has been tried twice. The first trial resulted in a disagreement of the jury, and in the present trial there was a verdict of not guilty. A motion for a new trial was overruled and judgment entered on the verdict. While the case was pending Mrs. Palmer died and her executors have been substituted in her stead.

The only question of fact for the determination of the jury was, had the market value of the property been depreciated by the construction, maintenance and operation of the elevated railroad? This question was determined in favor of the defendant, and counsel for plaintiff does not contend that this determination is not in accordance with the evidence, hut his complaint is that the court erred in the admission and exclusion of evidence, and in the giving and refusing of instructions.

The error claimed in the admission and exclusion of evidence is that the court violated the doctrine of “peculiar or station benefits.” As we understand counsel’s argument on this point, it is that the only evidence which was proper to be admitted and considered was that which pertained to the stations near or in front of the property—that the evidence of benefits should be confined to the block in which the property is located. It has been repeatedly held by the Supreme Court in other “loop” railroad eases which involved the same facts as in the instant case that it was proper to consider any evidence that would tend to show that the property had been enhanced in value by reason of the construction and operation of the railroad. Brand v. Union El. R. Co., 258 Ill. 133; Geohegan v. Union El. R. Co., 258 Ill. 352; McCoy v. Union El. R. Co., 271 Ill. 490. And in these cases the Supreme Court did not limit the question of benefits to the particular block in which the property claimed to be damaged was located.

Complaint is also made of the court’s refusal to give instruction No. 2, offered by plaintiff, by which it was sought to direct the jury to exclude from their consideration such elevated railroad travel facilities as the «property enjoyed immediately prior to the construction of the “loop.” This instruction was wrong, because the evidence of these travel facilities was proper to be considered in determining what the market value of the property was prior to the construction of the “loop,” and of course the "market value at that time must be shown in order to determine whether the market value was less immediately after the road was constructed and put into operation.

It is also contended that error was committed by the trial court in refusing to submit instruction No. 6 offered by the plaintiff. This instruction is identical with an instruction that was held improper in Geohegan v. Union El. R. Co., 266 Ill. 482, where the facts were substantially the same as in the instant case. The refusal of plaintiff’s instruction No. 7 was also based on the same authority, and of course this court cannot hold otherwise. Plaintiff’s instruction No. 8 was properly refused because it sought to tell the jury that “the burden of showing any offset to or reduction of the amount of such damage by reason of market benefit from travel facilities furnished by the so-called ‘loop’ railroad to the premises in question is upon the defendants.” This identical instruction was also held properly refused in the same case.

We have carefully considered all the errors claimed to have been committed by the trial court in giving instructions on behalf of the defendant, and also all other arguments advanced by counsel for the plaintiffs, and upon such consideration we have been unable to find any question that has not heretofore been passed on adversely to plaintiffs’ contentions, in the former “loop” cases, and further a discussion of them, therefore, would serve no useful purpose.

The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    In the Matter of the Estate of George Oglesby, Deceased. Adams Express Company, Appellee, v. Josephine G. Oglesby, Administratrix, and Robert Stevenson & Company, Appellants.
    Gen. No. 24,522.
    1. Executors and administrators, § 326*—when statute does not require funds to he hept separate and distinct. Rev. St. ch. 3, sec. 70 (J. & A. IT 119), providing that where a decedent has received money in trust, the amount received and not accounted for shall be paid out of the estate as a claim of the sixth class, does not require that the funds be kept separate and distinct before a claim therefor can be allowed as of such class.
    2. Executors and administrators, § 322

      —when trust fund to he delivered without allowance as of any class. A trust fund kept separate and distinct by a decedent is not a part of his estate at all but is the property of the claimant and should be delivered to him upon order of the court and not allowed as of any class.
    3. Contracts, § 330*—what does not constitute waiver of agreement relative to moneys received from sales of money orders. Waiver of the provision of a written agreement between an express company and the decedent in question relating to the sale of money orders, that moneys so received should not be mingled with such decedent’s funds, was not shown by the acceptance of such decedent’s personal checks, nor because at one time, in the presence of the company’s collector, money was received by the decedent from the sale of an order and handed by him to his son who rang the amount up in the cash register.
    4. Corporations, § 387*—when notice to collector of express company not notice to company. Notice to the collector of an express company that money received in his presence by a druggist who was authorized to sell money orders for the company, but had no authority to mingle money so received with his own funds, was turned over by such druggist to his son who rang the amount up on the cash register, was not notice to the company that its funds were being mingled with the funds of such druggist.
    5. Corporations, § 387*—when notice to employees of corporation not notice to corporation. Notice to every employee of a corporation would not be held notice to the employer.
    6. Executors and administrators, § 326

      —when trust funds need not he identified before claim allowed as of sixth class. It is not necessary to identify trust funds before a claim may be allowed against the estate of the trustee as of the sixth class.
    Appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 15, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Byron W. Wight and Job Beatty Burtt, for appellants.
    Charles B. Elder, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Adams Express Company filed its claim in the Probate Court against the estate of George D. Oglesby, deceased. It was allowed for $2,510.59, as of the sixth class. An appeal was taken by the administratrix of the estate and a creditor to the Circuit Court of Cook county, where the case was tried by a judge and a jury, and at the close of all the evidence there was a directed verdict in favor of the claimant, and its claim again allowed as of the sixth class for the full amount. The administratrix and the creditor have prosecuted this appeal.

There is no contention but that the claim is correct in every particular, except that appellants contend that it should have been allowed as of the seventh class and not as of the sixth class.

The record discloses that George D. Oglesby, the deceased, was conducting a drug store in Chicago, and was appointed by the express company to sell money orders, for which he was to receive compensation, and was to remit the proceeds to the express company. The appointment of the deceased by the express company was evidenced by a written instrument, in and by which the deceased agreed to keep the money orders and the proceeds of the sale of them in trust for the express company, entirely separate and distinct from any other funds in his hands. After Oglesby’s death it was found that he had sold, and failed to remit to the express company, money orders aggregating $2,510.59. The estate was insolvent. If the claim is allowed as of the sixth class mentioned in chapter 3, sec. 70, Eev. St. (J. & A. ft 119) it will be paid in full, but if it is allowed as of the seventh class mentioned in the same section, it will be paid only pro rata with the other creditors.

On the trial appellants contended that it should not be allowed as of the sixth class for two reasons: (1) That a claim of this class cannot be allowed unless the funds can be specifically traced and distinguished from other funds of the estate; and (2) because the express company waived the terms of the written trust agreement entered into between it and the deceased by knowingly permitting the deceased to commingle the funds of the express company with other funds of his own. These two questions, therefore, are the only ones proper for our consideration.

Claims of the sixth class are defined in section 70, ch. 3, Eev. St. (J. & A. 119) as follows: “Where deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for.” It is agreed that the $2,510.59, the amount for which claim was allowed as of the sixth class, was not kept separate and apart from other funds of the deceased, and, therefore, the funds could not be separately traced or identified. We think it clear that the provision of the statute just quoted does not require that the funds be kept separate and distinct before a claim can be allowed as of the sixth class. If it was necessary that this be done, then the provision of the statute would be meaningless. Because there is no reason why the Probate Court may not order a fund kept separate and distinct turned over to the claimant absolutely, for in such circumstances the fund was not a part of the estate at all, but the property of the claimant and should be delivered to him upon order of the court and not allowed as of any class. If it should be allowed only as of the sixth class and the estate insolvent, the claimant might receive nothing in case all the estate was required to pay claims of the first, second, third, fourth and fifth classes.

The next point made is that the express company knowingly permitted the commingling of the funds derived from the sale of money orders with funds of the deceased, thereby waiving the terms of the written agreement between the parties, and, therefore, the funds were held by the deceased in his lifetime as an agent only of the express company, and in these circumstances, of course, the claim should be allowed only as of the seventh class. Wilson v. Kirby, 88 Ill. 566; Svanoe v. Jurgens, 144 Ill. 507.

The evidence on this point tends to show that prior to deceased’s death he remitted proceeds obtained by him from the sale of the money orders to the express company by means of his personal check; (a) that one Duffy, representing the express company, used to come around once in a while to collect for money orders; that the book containing the stubs would be checked over and that on one occasion when Duffy called, a person came into the store for a money order, Duffy filled out a blank money order, gave it to the customer, collected the cash and turned the cash over to deceased’s son who was assisting in the conduct of the drug business; that the son rang the money up in the cash register, and that Duffy was standing about one and one-half feet from him at the time; that the money was thus mingled with other funds belonging to the deceased and at the close of business deposited in his bank account.

It does not appear that the express company knew that its funds were deposited by the deceased with other funds belonging to him, and we do not believe that the fact that remittances were made by the deceased, by giving his personal check, put the express company on notice that its funds were being mingled with funds of the deceased, for it might well be that the deceased kept the funds in a separate account in the bank for his own convenience. The evidence also fails to show that Duffy actually knew that the money was being mingled, or that, if he did know of it, he did not make any objection. Nor do we think it appears that notice to Duffy would be notice to the company, for notice to every employee of a corporation would not be held notice to the employer. We think the evideuce was insufficient to show notice to the express company.

Moreover, it is held by our Supreme Court in the case of Hay v. Bennett, 153 Ill. 277, that it is not necessary to identify funds before a claim may be allowed as of the sixth class. Condon v. Schoenfeld, 214 Ill. 226.

The judgment of the Circuit Court of Cook county is'affirmed.

Judgment affirmed.


text:
    George P. McCabe, Appellee, v. Chicago and Northwestern Railway Company, Appellant.
    Gen. No. 24,555.
    1. Carriers, § 96*—when damages recoverable for delay in delivery of automobile. Damages for delay in the delivery of an automobile shipped over defendant’s railroad were properly awarded, although the automobile was used for pleasure only, and there was no evidence of pecuniary loss.
    2. Carriers, § 96*—when notice of intended use of automobile not necessary to recovery of damages for delay in delivery. No notice of the use for which a car shipped over a railroad was intended was required, where the owner sought no special damages for the delay.
    3. Carriers, § 110*—when rental value is measure of damages for delay in delivery of automobile. Rental value was properly allowed as the measure of damages for delay in shipping an automobile which was intended to be used for pleasure, although the evidence disclosed that plaintiff did not hire any other automobile except an occasional taxicab.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 15, 1919.
    Charles A. Vilas and Ira C. Belden, for appellant; William Gr. Wheeler, of counsel.

      Ivor Jeffreys, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

George P. McCabe brought suit against the Chicago and Northwestern Railway Company to recover damages for delay in the delivery of an automobile shipped by him from Ogden, Utah, to Chicago. There was a finding and judgment in plaintiff’s favor for the amount he claimed, $160, to reverse which the defendant prosecutes this appeal.

The material facts are these: the plaintiff shipped his automobile, which he used for pleasure only, from Utah to Chicago. Through the negligence of the defendant there was a delay of 16 days in the delivery of the car to him in Chicago.

The automobile was used by the plaintiff in going to and from his home to his office in Chicago about three times a week, and at other times was used by himself and the members of his family for purposes of pleasure driving. It was not used in connection with any business. During the period of the 16 days, the plaintiff did not hire any other automobile except an occasional taxicab. Prior to the time-of shipment the plaintiff did not notify the defendant of the use which he intended to make of the automobile. It further appeared from the evidence “that the fair and reasonable rental value of said automobile at Chicago during said period of 16 days was the sum of $10 per day.”

The defendant contends that since there was no actual pecuniary loss sustained by the plaintiff, he cannot recover more than nominal damages; that the recovery allowed by the court is substantial and unwarranted, since the plaintiff did not notify the defendant of the purposes for which he intended to use the car. It is further contended that in no event can the plaintiff recover the reasonable rental value of the automobile as was done for the reason that this is not the correct measure of damages.

It is argued there is no evidence that the plaintiff suffered any pecuniary loss by reason of the default of the defendant in its failure to deliver to him the automobile; that no authority can be found in which substantial damages have been allowed as distinguished from nominal damages in the case of an article intended for pleasure only, unless there is proof of actual pecuniary loss. In support of this the cases of The Conqueror, 166 U. S. 110; The A. A. Raven, 222 Fed. 958; Fisk v. City of New York, 119 Fed. 256; Bondy v. New York City Ry. Co., 56 N. Y. Misc. 602; and Foley v. Forty-Second St., M. & St. N. Ave. Ry. Co., 52 N. Y. Misc. 183, are cited.

The case of The Conqueror was a libel by Frederick W. Vanderbilt to recover possession of his private yacht used for pleasure purposes only, which was wrongfully detained by the Collector of Customs for the District of New York, who acted on the advice of the United States Attorney General. Vanderbilt claimed $100 per day as his damages for the loss of the use of the boat, aggregating $15,000. It was there held that demurrage for the wrongful detention of the yacht could only be allowed when the profits of the boat could be proved with reasonable certainty. The daily rental value of the yacht was allowed, but the court says that the evidence on which this was based was unreliable, and intimates that some allowance might have been made for the wrongful detention if there had been sufficient evidence that the owner desired to use the vessel during the period for which it was detained. The Raven and Fish cases followed the rule announced in the case of The Conqueror. All three were admiralty cases. The cases of Foley and Bondy are in point. In the Foley case it was held, in an action to recover damages for injuries to an automobile, that an allowance for the loss of the use of the automobile while it was being repaired could not be made as the car had been used for pleasure and not for business purposes, and no other car had been hired in place of the damaged one. This conclusion was based on the ground that the damages were speculative. The opinion is but a few lines long and no authorities are cited. This case was followed in the Bondy case. While these cases hold that substantial damages cannot be allowed for the wrongful detention of an automobile on the ground that the damages are speculative and cannot with sufficient certainty be ascertained, yet we think that where an automobile used for pleasure purposes is wrongfully detained, the common sense of the situation is that the party at fault is liable even though the damages are not capable of exact admeasurement, for such damages may be as readily ascertained as those growing out of a personal injury case. In the instant case the plaintiff was entitled to the use, enjoyment, possession and right to dispose of his car. The defendant admittedly, wrongfully deprived him of these rights. In these circumstances, no valid reason can be assigned why the plaintiff should not be compensated for such deprivation. Compensation is the cardinal rule for the measurement of such damages, and to say that such compensation can be allowed for the wrongful detention of an automobile devoted to business, but to deny compensation where it is devoted to pleasure, is an attempt to make a distinction where there is no difference in principle. The plaintiff’s right of use, enjoyment, possession and disposition of the machine is not limited by the use which he made of it, and, therefore, under the admitted facts in evidence, he was entitled to recover whatever damages he had sustained. This proposition is held in Cook v. Packard Motor Car Co., 88 Conn. 590; Perkins v. Brown, 132 Tenn. 294; Berry on Automobiles (2nd Ed.), sec. 551; The Mediana, L. R. [1900] App. Cas. 113; The Greta Holme, L. R. [1897] App. Cas. 596; 1 Sedgwick on Damages (9th Ed.), secs. 243a, 243b, and 3 Hutchinson on Carriers, sec. 1373.

The Cook case was an action to recover damages to plaintiff’s automobile caused by defendant’s negligence, resulting in the loss of the use of the car for several weeks. Upon motion of defendant, the court directed a verdict in favor of the plaintiff for $1. .This judgment was reversed on appeal. The court there said (p. 592): “It was conceded at the trial that the defendant had already repaired the injured car at its own expense, and the main issue * * * was whether the plaintiff was entitled to recover for the loss of the use and possession of the car while it was being repaired at the defendant’s cost.” Continuing, the court said the question to be decided was (p. 593): “whether the right to recover substantial damages for being deprived of the use and possession of a chattel, as the result of a tortious injury to the chattel itself, depends on the character of the use which the owner intended to make of it, during the period of the detention. We fail to see why the character of the intended use should determine the right to a recovery, although it will, of course, affect the amount of recoverable damages. * * * An automobile owner, who expects to use his car for pleasure only, has the same legal right to its continued use and possession as an owner who expects to rent his car for profit; and the legal basis for a substantial recovery, in case of a deprivation of the use of the car, is the same in one case as in the other. Such an invasion of property right calls for an award of substantial, as distinguished from nominal, damages, and the only difficulty in applying the rule of compensatory damages to cases of this character is the very practical difficulty of estimating the actual damages m money. But the law does not deny substantial damages to one who has suffered a substantial injury, solely on the ground that,, the injury has not produced, or will not produce, a pecuniary loss.”

In the Perkins case, the plaintiff’s automobile was injured in a collision due to defendant’s negligence. The question for determination was whether the plaintiff was entitled to damages consequent upon the detention, in the shop, of the automobile for repairs. The car was used for pleasure only. During the time it was being repaired the plaintiff paid nothing for the hire of another machine. The court held the plaintiff was entitled to recover substantial damages as distinguished from nominal damages, and said (p. 297): “As pointed out by Mr. Sedgwick (section 243a), the value of the use of personal property is not the mere value of its intended use, but of its present potential use, whether availed of or not by its owner. His right of user, whether for business or pleasure, is absolute, and whoever injures him in the exercise of that right cannot complain when held to respond on that basis.”

In The Mediana case it was held that the Board of Trustees of Mersey Docks and Harbors was entitled to substantial damages for the loss of the service of a damaged lightship during the time its place was taken by a substituted lightship, although nothing was paid for the hire of the substituted lightship. In that ease the Lord Chancellor said (p.117): “And my Lords, here I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages. ‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damages, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term ‘nominal damages’ does not mean small.damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him-, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages. Of course the whole region of inquiry into damages is one of extreme difficulty. Ton very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in the place of the jury, to consider what compensation in money shall be given for what is a wrongful act. * * * Now in the particular case before us, apart from a circumstance which I will refer to immediately, the broad proposition seems to me to be that by a wrongful act of the defendants the plaintiffs were deprived of their vessel. When I say deprived of their vessel, I will not use the phrase, ‘the use of their vessel.’ What right has a wrongdoer to consider what use you are to make of your vessel? More than one case has been put to illustrate this, for example, the owner of a horse or a chair. Supposing a person took away a chair out of my room and kept it for 12 months, could anybody say you had a right to diminish the damages by showing that I did not usually sit in that chair, or that there were plenty of other chairs in the room? The proposition so nakedly stated appears to me to be absurd; but a jury have very often a very difficult task to perform in ascertaining what should be the amount of damages of that sort. I know very well that as a- matter of common sense what an arbitrator or a jury very often do is to take a perfectly artificial hypothesis and say, ‘Well if you wanted to hire a chair, what would you have to give for it for the period’; and in that way they come to a rough sort of conclusion as to what damages ought to be paid for the unjust and unlawful with drawal of it from the owner. Here, as I say,«the broad principle seems to me to be quite independent of the particular use the plaintiffs were going to make of the thing that was taken, except—and this I think has been the fallacy running through the arguments at the bar—when you are endeavoring to establish the specific loss of profit, or of something that you would otherwise have got which the law recognizes as special damage. In that case you must show it by precise evidence. * * *

“But when we are speaking of general damages, no such principle applies at all, and the jury might give whatever they thought would be proper equivalent for the unlawful withdrawal of the subject-matter then in question.”

Under these authorities we think it olear that the plaintiff was entitled to recover for the wrongful detention of his car and this, too, even though he sustained no pecuniary loss.

We also think that no notice was required to be given the defendant of the use for which the car was intended, as no special damages were sought in this case.

It is also argued that in no event was the plaintiff entitled' to recover the reasonable rental value of the car for the time it was wrongfully detained. There is a statement to this effect in the Cook case, where the court held the rental value would not be the proper measure of damages, “for such rental value includes a substantial allowance for depreciation and repair to which the plaintiff’s car has not in the meantime been subjected.” In the instant case the defendant also argues that the evidence shows the car was used but a few hours per day, while the plaintiff was allowed damages for a full day. Whether the rental value is the correct rule on which to predicate damages in all cases we dó not decide, but in the instant case, for aught that appears from the' evidence, the court found the rental value of the car to be $10 per day, having in mind the particular use to which it. had been put by the plaintiff.

There is no evidence that the reason the court allowed $10 per day was based on the number of hours it had been used, unless we assume that he considered the use to which it had theretofore been put. We think the Lord Chancellor in The Mediana case put it very well when he said, as above quoted, “Well, if you wanted to hire a chair, what would you have to give for it for the period.”

To the same effect is the holding of the Supreme Court of this State in the case of Priestly v. Northern Indiana & C. R. Co., 26 Ill. 206, where the rental value of machinery was allowed for the negligent delay in transportation.

Under these authorities and the facts in this case, we are of the opinion that the rental value was properly allowed.

It is next argued that the stipulation in the bill of lading regarding the measure of damages is controlling but was disregarded on the trial. In the case of Fox v. Chicago & N. W. Ry. Co., 199 Ill. App. 453, we had occasion to consider, very carefully, a similar stipulation in the bill of lading, and we there held that this stipulation fixed the maximum amount of damages that could be recovered. No evidence was offered as to the value of the automobile and there was no claim that it had in any way been damaged. We think the stipulation in the bill of lading was unimportant. The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


author: Mr. Justice Taylor

text:
    Sam Sinaiko et al., trading as Sinaiko Brothers, Appellees, v. Illinois Smelting & Refining Company, Appellant.
    Gen. No. 24,552.
    1. Contracts, § 39*—when telephone conversation constitutes contract. An offer over the telephone to sell zinc slabs or “spelter” and an answer stating that if the seller could get the spelter at once the purchaser would give the seller 12 cents a pound, followed by the statement that “I will affirm that tonight,” constituted a contract, and if written confirmation had been necessary the mailing of a subsequent letter would have made the contract complete.
    2. Contracts, § 261*—when ex parte revocation impossible. The mailing of a letter accepting an offer constitutes ipso facto acceptance, and acceptance concludes the contract, and subsequent revocation, ex parte, becomes impossible.
    3. Appeal and error, § 1506

      —when permitting witness to testify after violating rule for exclusion of witnesses will be harmless. Error in permitting a witness to testify in rebuttal after violating a rule for the exclusion of witnesses was immaterial where the evidence otherwise supported plaintiffs’ case.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 15, 1919.
    Cunningham & Oswald, for appellant.
    Levinson & Hoeeman, for appellees; L. Loewenstein, of counsel.

      See Illinois Notes Pigres* Yols. XI to XV end Cumulative Quarterly, same topic and section numbe*.

   Mr. Justice Taylor

delivered the opinion of the court.

Claiming that the defendant bought certain merchandise which it refused to pay for, and that as a result it was sold at a loss, the plaintiffs brought suit for the difference, and certain extra charges, and ohtained judgment against the defendant in the sum of $814.26. This appeal is taken therefrom.

On December 5, 1916, Sam Sinaiko, at Madison, Wisconsin, called up one Weill, president of the defendant company, and told him that the plaintiffs desired to sell some zinc slabs or “spelter.” Weill answered, according to his own testimony, “Well, if you can get the spelter at once, I will give you 12 cents a pound.” He further testified that Sinaiko responded: “All right,- we are going to ship it.” There was some further talk over the telephone, in the course of which Weill said: “I will affirm that tonight.” On the same day, December 5,1916, a letter was sent by the defendant company to the plaintiffs which is as follows:

“In regard to the conversation we had with you this morning, we beg to confirm purchase from you of ten to fifteen tons of slab zinc such as we had from you before at 12 cents ($240 net ton) and shimmings at $45 net ton, both delivered Chicago net cash on receipt of material.

“Kindly let us have prompt shipment via St. Paul or C. & N. W. sending invoice and B/L to this office, and oblige.”

On December 6, 1916, the plaintiffs wrote the defendant as follows:

“This is to acknowledge receipt of your check for $489.20. P. S. Our Mr. Sam Sinaiko is out of the city today. Will answer yours in regard to the slab zinc as soon as he returns.”

On the 10th or 11th of December, 1916, it having taken 2 or 3 days to get an empty car and several days to load it, the plaintiffs shipped the material to the defendant. They also shipped along with the spelter some zinc shimmings and copper, apparently on the theory that the defendant company might purchase the extra shipment, that is, in addition to the spelter. On December 12, 1916, the defendant received a letter containing the invoice and bill of lading. On Decernher 15, 1916, the defendant wrote the plaintiffs as follows:

“We are in receipt of yonr papers on the 12th inst., and see that you have included in your shipment 19,842# of zinc slabs. We do not find that we ever purchased this material from you and if you will refer to your letter of the 6th you will find that you are in error in making shipment of the slabs. When this shipment arrives we will unload this material and you can dispose of the slab zinc to whom you please.”

And on December 23, 1916, the following letter:

“On the 5th we wrote you about this dross and on the 6th your clerk acknowledged receipt of our check for $489.00 and he says, ‘our Mr. Sinaiko is out of the city today. Will answer you in regard to the zinc as soon as he returns.’

“On the 11th of the month without further notice we received your bill of lading. We could have sold that slab zinc dross but now with spelter at nine cents a lb. there is no chance of doing anything.

“With your permission we will take same out of the car and keep same for you without charge. We are unloading the skimmings today and if this is not satisfactory you can telegraph us and we will leave same in the car or we will accept same at eight cents a lb,”

Subsequently, on February 2, 1917, the plaintiffs wrote to the defendant that the spelter, which, meanwhile, the defendant had returned to Chicago, would be sold at public auction. Accordingly on February 8, 1917, at 3:00 p. m. it was sold for $1,635.89. The charges for freight were $34.67 and for demurrage $36, making in all $1,706.56. The loss was the difference between 12 cents and 8% cents a pound on 19,829 pounds, together with the loss of demurrage and freight, making in all $814.26, which was the amount of the judgment entered.

It is the theory of the defendant that the telephone conversation did not constitute a contract and that the plaintiffs’ letter of December 6, 1916, was a rejection of the alleged offer in the defendant’s letter of December 5, 1916. We are unable to agree with those contentions. The defendant’s letter of December 5, 1916, which contains the words: “In regard to the conversation we had with you this morning, we beg to confirm purchase from you of,” etc., constitutes an express admission by the defendant that a contract of purchase and sale had already been made by telephone. When, over the telephone, Sinaiko said: “I want to sell my spelter now,” and Weill, knowing, as he did at that time, that the plaintiffs had the spelter on hand, said: “Well, if you can get the spelter at once, I will give you 12 cents a pound,” to which Sinaiko responded: “All right, we are going to ship it,” there was then a completed contract of purchase and sale. The evidence that Weill said: “I will affirm that tonight,” and then wrote on the same day: “In regard to the conversation we had with you this morning, we beg to confirm purchase from you,” etc., conclusively demonstrates that the minds of both parties had already met and that the contract was made. The fact that subsequent to the time of the telephone conversation, under date of December 6, 1916, the plaintiffs wrote to the defendant, acknowledging receipt of a check for certain other merchandise, and added a postscript: “Our Mr. Sam Sinaiko is out of the city today. Will answer yours in regard to the slab zinc as soon as he returns,” cannot be considered as legally affecting the contract which was already made. There is some testimony on behalf of the plaintiffs that at the time the letter containing the postscript was written, the letter of the defendant of December 5 had not been received. That, however, we consider entirely immaterial. We see no escape from the conclusion that the contract was made over the telephone. But, even if written confirmation were necessary, the mailing of the letter of December 5 made the contract complete. The mailing of a letter of acceptance constitutes, ipso facto, acceptance (Haas v. Myers, 111 Ill. 421; Chytraus v. Smith, 141 Ill. 231), and “acceptance concludes the contract”; and, subsequently, revocation, ex parte, becomes impossible. Anson, "Law of Contract (2nd Am. Ed.) p. 37.

The contention that it was error to permit the witness Felscher to testify in rebuttal, after a rule had been' entered excluding the witnesses, is not tenable, as the testimony which she gave, in the view we take of the evidence, was immaterial.

Likewise, the contention in regara to certain instructions we consider as untenable, being of the opinion that the trial judge would have been justified, at the close of all the evidence, in directing the jury to bring in a verdict for the plaintiffs.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Ellen Barrett, Administratrix, Appellee, v. Benjamin Ablin, Appellant.
    Gen. No. 24,643.
    1. Appeal and errob, § 1862*—When surety on appeal bond of administratrix not released from liability. Under an appeal bond providing that if the named administratrix should duly prosecute her appeal with effect and pay the amount of the judgment, etc., to be rendered against her in case of affirmance by the Appellate Court, the obligation should be void, etc., the surety in an action on the bond could not escape liability on the theory that the obligation was discharged because the Probate Court had ordered the judgment paid and the administratrix had taken steps required by law to pay the judgment in due course of administration.
    2. Appeal and error, § 1859*-—when surety on appeal bond of administratrix estopped to show particular meaning of obligation. Under the rule that the maker of a bond is bound by the recitals therein whether they are true or false, the surety on the appeal bond in question was precluded from showing that the obligation to pay the judgment appealed from meant merely that the judgment be paid in due course of administration of the estate of which the principal In the bond was the administratrix.
    3. Appeal and error, § 1886*—when damages for delay awarded in action on appeal bond of administratrix. Damages for delay were awarded in an action on an appeal bond given by an administratrix, where, although the obligation was to pay the judgment in question, the defense was that it merely meant that the judgment be paid in due course of administration.
    4. Appeal and error, § 1859

      —when surety on appeal bond given administratrix estopped to deny latter's representative capacity. Where the plaintiff, who sued as administratrix, was the obligee in the appeal bond in question, it was immaterial whether or not she was such administratrix at the time of commencing suit; and as the surety contracted with her, he was estopped to deny her representative capacity.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed with damages.
    Opinion filed October 15, 1919.

      Kerr & Kerr, for appellant.
    Jacob Levy and Josiah Burnham, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

On April 27, 1918, the plaintiff,. Ellen Barrett, as administratrix of the estate of Thomas E. Barrett, deceased, brought suit against the defendant, Benjamin Ablin, for the sum of $1,500. The plaintiff’s statement óf claim sets forth the following:

“Plaintiff’s claim is upon an appeal bond to secure the amount of the judgment appealed from, interest and costs; and the plaintiff alleges that the defendant and one Annie Marschak, administratrix of the estate of Joseph Marschak, deceased, executed said bond on, to-wit, May 31, A. D. 1917, bearing date of that day, in the penal sum of Fifteen Hundred Dollars ($1,500.00), a copy of which bond is hereto attached. 2. Said bond was given in an appeal to the Appellate Court from a judgment of the County Court of Cook County for the sum of One Thousand Dollars ($1,000.00) and costs of suit, entered on, to-wdt, May 3. A. D. 1917, in favor of the plaintiff, and against the said Annie Marschak, administratrix of the estate of Joseph Marschak, deceased. 3. The said judgment of said County Court was affirmed by said Appellate Court on, to-wit, the 25th day of March, A. D. 1918. 4. 'Said judgment has not been paid, nor has the said sum of $1,500.00 named in said appeal bond, or any part thereof, been paid; and said defendant has refused, though often requested, and still refuses to pay the same, and said appeal bond still remains in full force. 5. There is now due upon the said judgment and costs, the principal sum of $1.000.00; legal interest upon the same from May 3, 1917, $50.00; costs in said County Court $11.90; and costs in said Appellate Court the sum of $15.75; none of which has been paid.”

The bond in question recites, among other things, that whereas the said. Ellen Barrett, administratrix of the estate of Thomas E. Barrett, deceased, did on May 3, 1917, in the County Court, recover a judgment against Annie Marschak, administratrix of the estate of Joseph Marschak, in the sum of $1,000 and costs; from which judgment of the said County Court the said Annie Marschak, administratrix, etc., has prayed for and obtained an appeal to the Appellate Court, “Now, Therefore, if the said Annie Marschak, administratrix of the estate of Joseph Marschak, deceased, shall duly prosecute her said appeal with effect, and moreover pay the amount of the judgment, costs, interest and damages rendered, and to be rendered against her, in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue. ’ ’

On May 20, 1918, the defendant filed an affidavit of merits setting up, among other things, that on April 27, 1918, Ellen Barrett was not and is not now the administratrix of the estate of Thomas Barrett, deceased; that on or about July 27, 1910, the final account of the said Ellen Barrett as administratrix was approved by the Probate Court and said estate declared settled and closed and the administratrix discharged and no further proceedings were ever had in the said estate; that the chose in action sued upon in this ease was not then and is not now an asset of the estate of the said Thomas E. Barrett, deceased; that the plaintiff Ellen Barrett is not vested with the right of action in the manner and form as alleged in the plaintiff’s statement of claim; that she has no authority to institute and maintain suit upon said chose in action except that she sue as nominal plaintiff only, and that the beneficial plaintiffs in fact are N. Obstfeld, Isadore Obstfeld and Mrs. M. Obstfeld, or some one of them; that the foregoing suit is in fact for the benefit of the said beneficial plaintiffs; that the defendant is not indebted in any amount and a recovery should not be had against him in this action. Further the affidavit of merits sets up the history of certain litigation involving the parties in question, all of which, however, we are of the opinion is entirely immaterial in determining the questions which arise upon this appeal.

Oil May 22, 1918, on motion of the plaintiff, the trial judge struck the affidavit of merits, and on May 27, 1918, the defendant filed an amended affidavit of merits. The latter contains substantially the same allegations as the original affidavit of merits; it contains more details and sets up more evidence but adds no new defense. On May 31, 1918, the trial judge ' struck the amended affidavit from the files and entered judgment against the defendant in the sum of $1,092, together with costs. This appeal was taken therefrom.

It is claimed by the defendant, as set up in his affidavit of merits, that the judgment was against the administratrix in her official capacity; that, although the bond recites that, if the said Annie Marschak, administratrix of the estate of Joseph Marschak, deceased, shall duly prosecute the appeal to effect, and, moreover, pay the amount of the judgment in case the judgment shall be affirmed, as he had set up in his affidavit of merits that the Probate Court had ordered the judgment paid and the administratrix had taken the steps required by law to pay the judgment in due course of administration, therefore, the obligation on the appeal bond was discharged.

According to the terms of the bond the obligation is not to pay the judgment in due course of administration. There is no qualification. When Annie Marschak signed the appeal bond her obligation was to pay the judgment not in the course of administration but to pay it, as a specific judgment, when affirmed in this court. It is admitted the judgment was affirmed. How may it then he claimed that the obligation is not absolute. The words in the bond are the usual, conventional words, with well-known and settled legal meaning. The question is not what was the intention of the parties but simply what is the meaning of the words that they have used. The bond must be taken for what it is and not for what it might have been. In the case of Meserve v. Clark, 115 Ill. 580, the court said, referring to an appeal bond: “Upon what principle can she be permitted to question the truth of the recitals in that instrument? The general rule unquestionably is, that the maker of a bond is bound by the recitals in it, whether they are true or false. * * * We see no reason why the bond in question is not valid as a voluntary contract.” Blackburn v. Bell, 91 Ill. 434; Mix v. People, 86 Ill. 329. Counsel for the defendant argues that the bond might have provided specifically for payment “in any event” or for payment “in due course of administration,” and that in the present case, inasmuch as the principal obligor is described in the bond as administratrix of the estate of Joseph Marschak, deceased, it is only reasonable to be allowed to refer to the judgment itself in order to find out what the bond means; in other words, what was the method of payment provided for in the judgment. The affidavit of merits stated that the judgment was payable in due course of administration and that the principal obligor in the appeal bond had taken steps implied by the term “due course of administration.” We are of the opinion, however, that the law is so well established as to the unqualified liability of principals and sureties in accordance with the exact terms and words of the bonds themselves that it would have been error for the trial judge to have entered upon the trial of an issue of fact as to the meaning of the word judgment, as it appeared in the bond.

The condition of the bond is that if Annie Marschak, administratrix, etc., “shall duly prosecute her said appeal with effect, and moreover pay the amount of the judgment, costs, interest and damages rendered, and to be rendered against her, in case the said judgment shall be affirmed in said Appellate Court,” etc. The judgment is described in the bond as “a judgment against the above bounden Annie Marschak, administratrix of the estate of Joseph Marschak, deceased, for the sum of One Thousand, DoEars ($1,000.00).” In considering those words we see no escape from their obvious meaning. Nor, do we see, in view of the law, how it is possible for the defendant to be allowed to go afield and undertake to show that the judgment described in the bond is a judgment of a particular kind and not for the payment by the principal and surety of the sum mentioned at the time mentioned in the bond.

Counsel further contends that the plaintiff was not at the time of the commencement of the suit duly appointed, qualified and acting administratrix of the estate of Thomas E. Barrett, deceased, and that, therefore, she cannot maintain an action on this bond. The suit was instituted in her name as administratrix and her name as administratrix is that of the obligee in the bond itself. Whether or not she was the administratrix at the time' makes no difference, and inasmuch as the defendant contracted with her as administratrix he is now estopped to deny her representative capacity. Portis v. Illinois Surety Co., 176 Ill. App. 590; Meserve v. Clark, 115 Ill. 580.

We have read the various decisions reported in 154 Ill. App. 637; 192 Ill. App. 481; 171 Ill. App. 601, and 204 Ill. App. 179, also Barrett v. Marschak, 210 Ill. App. 171, in order to more thoroughly understand the case; and now, as a result of what the record shows on this appeal, we are compelled to the conclusion that it was prosecuted for delay. The judgment is, therefore, affirmed, with additional damages of $54.60

(being 5 per cent of the damages assessed below) in addition to the costs.

Affirmed with damages.


text:
    The People of the State of Illinois, for use of Vincent Gabolis, Appellee, v. Michael Broda and Montezas Marozas, Appellants.
    Gen. No. 24,711.
    1. Guardian and ward, § 99*—when error, in action on guardian’s bond, to exclude evidence of money spent for support of ward. In. an action on a guardian’s bond to recover money alleged to have been converted by the guardian, who was the ward’s mother, it was error to refuse to admit evidence as to money spent by the mother in the support of her ward, outside of that paid by order of the Probate Court.
    2. Guardian and ward, § 16*—when guardian may expend money for necessaries without order of court. The credit to be given a guardian is not determined by any fixed rigorous standards, but by what is reasonable and equitable; and it is not necessary to obtain an order of court for leave to expend money for the necessaries of the ward, but the County Court should allow them when proven reasonable.
    3. Guardian and ward, § 31

      —when ward may become indebted to guardian. A ward may become indebted to her guardian for necessaries as well as to a stranger.
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Pet, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 15, 1919.
    Otto H. Beutler, for appellants.
    No appearance for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is a suit brought by the plaintiff against the defendants as sureties on a guardian’s bond.

On August 31, 1909, one Marianna Gabolis was appointed guardian of the estate of her son, Vincent Gabolis. As guardian she gave a bond, signed by the defendants as sureties, by which they bound themselves in the sum of $600 subject to the condition that if Marianna Gabolis should faithfully discharge the office and trust of guardian of the estate of Vincent Gabolis according to law then it should be void and otherwise should remain in full force and virtue.

On February 13,1918, the plaintiff filed a statement of claim alleging, among other things, that Marianna Gabolis as guardian .received $266.66 which she converted to her own use and that as a result the plaintiff, as against the defendants as sureties on her bond as guardian, is entitled to damages in the sum of $600. On March 7, 1918, the defendants filed an affidavit of merits in which they admitted that Marianna Gabolis was appointed guardian of the estate of Vincent Gabolis; that the Probate Court approved the bond; that they, the defendants, executed said bond as sureties; that Marianna Gabolis died on or about November 13, 1915. They denied, however, that she received $266.66 as guardian of Vincent Gabolis, and alleged that whatever sum she received as guardian she paid out for the support, maintenance and education of the said ward.

The evidence shows the following: Vincent Gabolis, the ward, was born in Kartvno, Russia. He began doing farm work when he was 9 years old and received 9 rubles a year. As he grew older his wages increased to 45 rubles a year. He came to. this country in November, 1913, when he was 18 years of age, and lived with his mother and stepfather. En route from Russia he stayed a week in New York; at that time he received $25 from Ms mother. His testimony is that 2 weeks after he landed he went to work, in Chicago, for Armour & Company and worked there for about a year; that he gave his pay to his mother for his board and lodging; that after he left Armour & Company he worked for Morris & Company in a tin shop; that he worked there until his mother died in November, 1915; that then he went back to Armour & Company; that while his mother was living and he was working, his wages amounted to from $10 to $12 a week, all of wMch he gave to his mother with the exception of a few dollars which he kept for himself.

Alexander Banacza, who married Marianna Gabolis on September 27, 1910, and lived with her as her second husband until she died, November 13, 1915, testified that Vincent Gabolis lived with them until his mother died; that during the 2 years that Vincent Gabolis lived with them he worked only one month; that his mother furnished him with board, lodging and clothing during those 2 years; that his mother spent $90 for the steamship and railroad ticket used by Vincent Gabolis in coming from Eussia to America; that she sent him $25 to New York. He further testified that when she died her total estate consisted of $100 in the bank, and that that was taken by the undertaker. In rebuttal, Vincent Gabolis testified that he never received the $90 or a steamship ticket from his mother; that he bought Ms ticket with Ms own money; that he did receive $25 when he was in New York but paid it back to his mother after he came to CMcago and started to work.

The final report of John F. Devine, administrator of the estate of John Gabolis, deceased, was offered in evidence showing that, as the result of a claim for damages against Armour & Company for causing the death of John Gabolis, he received, as administrator, from Armour & Company in settlement of the claim for damages the sum of $556; that he paid out as court costs, stenographers’ and attorneys’ fees, $126; that he had retained $30 as his commission, and had paid to Marianna. G-abolis as widow $133.34, and to her as guardian of Vincent G-abolis, $133.33. That report was approved by the Probate Court on May 30, 1910. At the close of the evidence the trial judge entered judgment for the plaintiff in the sum of $600 in debt, and the sum of $202 damages together with costs. The sum of $202 was reached by adding compound interest to the sum of $133, the latter being the amount paid to the guardian for the benefit of her ward, Vincent G-abolis.

It is claimed by counsel for the appellants that the trial judge erred in refusing to admit evidence as to any money spent by the mother on her ward, outside of that which she paid out by order of the Probate Court. The trial judge stated his conception of the law in the following question: “As a legal proposition is it not true that that rests upon the mother, that duty to clothe the child, and if a mother wants to pay out money that is in her hands as guardian she must do it by order of the Probate Court?” And when counsel for the appellants stated to the court that “he ought to be allowed to- go into the question as to what the reasonable care and board and lodging was worth during the first two years after he came to this country,” the trial judge ruled that that was objectionable.

We are of the opinion that the court erred in refusing to admit, on the part of the appellants, evidence going to show what money, if any, she spent, for the reasonable support of her ward during her guardianship. It is the contention of the appellants that the ward from the time he came to this country, when be was 18 years of age, until the death of his mother, 2 years later, did not work to exceed one month; and that during the 2 years he both boarded and lodged with his mother and stepfather, and that they furnished him also with clothing; that instead of helping his mother as he might have done he in fact received his board, lodging and clothing for nothing, although the family was obviously in poor circumstances and the ward was of such an age that he could easily have supported himself.

In Bond v. Lockwood, 33 Ill. 212, a case in which the guardian was the stepfather of minors, and was undertaking to charge the estate of the minors with the cost of their board and clothing, the court used the following language:

“A guardian may support his ward without any order of court, and all payments which he can show were necessary for that purpose will be allowed to him. Any one in possession of the ward’s property, or a stranger, may do it and have a like allowance, but such allowance will only be made upon proof, showing the necessity of the expenditure and for what it was made. A minor has power to contract for necessaries, and we see no reason why he may not become indebted to his guardian for them as well as to a stranger. * * * The appellee (who was the stepfather and guardian of the minor) was not required by law to board the children of his wife by a former marriage without compensation, nor was his wife obliged so to do.”

In Seago v. People, 21 Ill. App. 283, where a suit was brought on a bond given for the mother as guardian of minor children, the following language was used:

“We think the court erred in excluding from the jury the report made by Mrs. Foyles on the 12th of January, 1884. It tended to show that originally the mother intended to charge her daughter Luella for board at the rate of fifty cents per week, and if such was her intention and she actually furnished her daughter with such board, at reasonable prices, it would have been pro tanto a payment to her daughter of which the sureties upon her bond could avail themselves, notwithstanding the mother might afterwards desire to be charged with it solely for the purpose of enabling her daughter to recover from the sureties.”

It is obvious, from the decisions pertinent to the subject-matter of this appeal, that the credit to be given a guardian is not determined by any fixed rigorous standards but by what is reasonable and equitable. As to the intimation of the trial judge, that money can be paid out by the guardian only pursuant to an order of the court, it is stated in Stout v. Wood, 59 Ill. App. 122, that “it is not necessary to obtain an order of court for leave to expend money for the necessaries of the ward, but the County Court should allow them when proven reasonable. Defendant in error could become indebted to her guardian for necessaries as well as to a stranger.’ ” Miller v. Lindemann, 206 Ill. App. 130. It follows, therefore, that all proffered evidence tending in any way to show whatever may have been furnished to the ward by the guardian in the way of money, board, lodging and clothing was competent, in order that all proper charges against the estate on behalf of the guardian might be determined, and credit given therefor.

In view of the errors in the rejection of evidence, the judgment is reversed and remanded.

'Reversed and remanded.


author: Mr. Presiding Justice McSurely

text:
    Henry Kunz, Plaintiff in Error, v. Boston Store of Chicago, Defendant in Error.
    Gen. No. 25,000.
    1. Master and servant, § 770*—when'error to direct verdict for master sued for injuries to servant. A directed verdict for the defendant was improper in an action against an employer rejecting the Compensation Act for personal injuries sustained hy a rug packer, who while sitting on a box in the packing room in defendant’s store, waiting for his partner to assist him in packing, was struck by a bulky and heavy roll of linoleum which fell from its position of leaning against a wall, without being pushed or touched by any one.
    2. Master and servant, § 677*—when servant, suing for injuries, matees out prima facie case. A prima facie case of negligence, or at least one which should have been permitted to go to the jury, was made out, where a bulky and heavy roll of linoleum, which had been stacked against a wall in defendant’s store, fell from its position and struck an employee without having been pushed or touched by any one.
    3. Master and servant, § 775

      —what improper to he considered on motion to direct verdict for master sued for injuries to servant. On a motion to find for the defendant in a personal injury case, the court improperly considered the probative effect of a statement in writing purporting to have been signed by plaintiff, which gave another version to the accident than that to "which he testified upon the trial.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Ttjthiix, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed October 27, 1919.
    Rehearing denied November 10, 1919.
    Corinne L. Bice and A. H. Banes, for plaintiff in error.
    Moses, Bosenthal & Kennedy, for defendant in error; Hamilton Moses and Walter Bachrach, of counsel.

      See Illinois Notos Digest, Vols, XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff while engaged in his duties as an employee of the defendant received injuries. He sought to recover compensation, but upon trial the court instructed the jury to bring in a verdict for the defendant, which was done and judgment entered thereon. Plaintiff argues that the case should have been allowed to go to the jury; that defendant was engaged in one of the occupations enumerated as extrahazardous under the Workmen’s Compensation Act, and had elected not to be bound by said act; therefore it was not entitled to the defense of assumption of risk or that the injury was caused by a fellow-servant or the contributory negligence of the plaintiff (Workmen’s Compensation Act of 1913). While conceding this, defendant truly says that it was incumbent upon plaintiff to prove that the injury was due to negligence of the employer.

Plaintiff’s evidence tended to show that he was employed by the defendant as a rug packer; that his work was on the ninth floor of the building occupied by defendant, and that linoleums and carpets were brought up from the sixth floor on the elevator to the ninth floor and set along the wall, from which plaintiff and his “partner” would take them for packing; that plaintiff did not stack them against the wall, but this work was done by the elevator men who brought them up. On the day of the accident plaintiff was sitting on a box in the packing room, waiting until his partner, Walsh, would come to assist in packing. At this particular time plaintiff was doing nothing, and while sitting there a roll of linoleum which had been stacked against the wall near by behind him fell, striking plaintiff on the shoulder, knocking him off the box, breaking his arm and rendering him unconscious for a time. The linoleum was ‘in a roll about 12 to 14 feet long, and weighed from 500 to 700 pounds. Before it fell it was leaning against the wall at an angle, with the bottom of the roll about one foot and a half from the wall.

It is argued, with many citations, that this evidence wholly failed to prove any negligence on the part of the defendant, and that therefore the peremptory direction of the trial court to find for the defendant was justified. We are not disposed to consider these eases in point, for the reason that they include a consideration of the acts of a fellow-servant, assumed risk or contributory negligence of the person injured. Those elements cannot be considered in the instant case. Here we have the simple fact that a bulky and heavy roll of linoleum, leaning against the wall, falls from that position without being pushed or touched by any one. In the absence of any other cause it would be reasonable to presume that the linoleum fell because it had not been properly stacked against the wall; at least it would be fair to permit the jury to judge from the facts as to whether or not this was the cause.

In Briggs v. Oliver, 4 Hurl. & Colt. 403, was involved a packing case which had been propped against the wall and which fell upon the plaintiff. The court found that as the evidence showed it fell by its own weight, this tended to prove that it had been “propped up insecurely”; and the court said in its opinion that “packing cases do not usually fall of themselves, unless there had been some negligence. The facts of this case appear to me to be consistent only with the existence of negligence, either in the defendant or in some person for whose act he is responsible.” See also Orenstein v. Boston Store of Chicago, 177 Ill. App. 256.

The fact that the plaintiff expected in the course of his duties to pack this and other rolls of linoleum does not make him responsible for the manner in which it was placed in the packing room in the first instance. This duty devolved upon another employee of the defendant.

The trial court seems to have been influenced by the probative effect of a statement in writing purporting to have been signed by the plaintiff, which gave another version of the accident than that to which he testified upon the trial. The court was without power to weigh the variant stories of the witnesses, if there were any. Their weight should have been left to the jury, which properly might be led by the circumstances attending the securing of the written statement to give less weight to it than to the testimony upon the stand. ■

We see no reason why the court should not have permitted plaintiff to withdraw his second amended first count and his first, second and sixth additional counts, and also to amend his third, fourth and fifth additional, counts as requested. As the cause must be remanded for further proceedings, these motions of plaintiff should be allowed.

We are of the opinion that the question of the probative effect of the evidence adduced was for the jury to determine, and that it was error to instruct peremptorily for the defendant. The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Wenatchee Valley Fruit Growers Association, Appellee, v. Michigan Central Railroad Company, Appellant.
    Gen. No. 25,046.
    1. Cabbiebs, § 82*—what constitutes delivery of car of apples. Where the only contract between a shipper and a common carrier called for delivery at Chicago, such delivery was accomplished by the placing of the car in question on defendant’s public delivery-team track and the giving of notice, and a subsequent order to forward the car to a given destination operated as a new contract.
    2. Cabbiebs, § 139*—what evidence necessary in action for damage to apples by frost. WGiere a car of apples was delivered for transportation to a common carrier, apparently in good condition, at Detroit on December 10, for delivery to the consignee at Chicago, and after arrival at the latter place at 11:20 a. m. on the 12th was placed on the public delivery track at 2 p. m. on the same day and the proper parties then notified, and after the car had remained upon the track for 48 hours the carrier was notified to forward the car to a given destination on another railroad, the consignee was not entitled to recover damage sustained by frost, in the absence of evidence showing that the shipment was damaged while in the possession of the initial carrier.
    3. Cabbiebs, § 92

      —when shipment not regarded as continuous. A shipment was not considered as continuous and not completed until arrival at its ultimate destination, where the freight rate was not a through rate from the starting point on the Michigan Central at Detroit to its destination on the Illinois Central, but was made up on charges from Detroit to Chicago and the charge was assessed by the Illinois Central without any indorsement on the original contract of shipment extending it.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and judgment here.
    Opinion filed October 27, 1919.
    Winston, Strawn & Shaw, for appellant; Frank H. Towner, of counsel.
    Charles A. Butler, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover for damages to a shipment of apples originally delivered to the defendant for transportation. Upon trial by the court plaintiff had judgment for $493.82, from which defendant appeals.

The declaration asserted negligence on the part of defendant and violation of its promise to carry the property safely. The evidence tended to show that the apples were delivered to defendant for transportation at Detroit on December 10, 1914, and were then apparently in good condition; that by the bill of lading they were consigned to the plaintiff at Chicago, where they arrived at 11:20 a. m. December 12. The car containing the shipment was "placed on the public delivery team track of the defendant at 2 o’clock p. m. of the same day, and the parties handling the .car on behalf of plaintiff notified at that time. The bill of lading contained a provision that after the car had been delivered, and remained there for 48 hours without removal by the consignee,, defendant’s liability as carrier would expire and it would hold the car as a warehouseman. After this 48-hour period had expired, the shipment still remaining upon the team track, that is, at 6 p. m. December 14, defendant received an order from plaintiff’s agent to forward the car to the Central Fruit Auction Company, in Chicago, via the Illinois Central Eailroad. This order was complied with. There is no claim of delay in handling the shipment on the part of the defendant. Plaintiff introduced evidence of an inspector who examined the apples when they were opened at the Centra] Fruit Auction Company, who testified that at that time they were damaged by frost. There was no attempt made to prove at what time this damage occurred. The theory of the plaintiff is that defendant was liable as carrier from the first receipt of the shipment until its arrival at the Central Fruit Auction Company, and that it was liable for the damage from frost occurring during this time. On the other hand defendant contends that, having brought the car to Chicago and having placed it on the public delivery team track, there being no other place of delivery specified, and the proper parties having been notified of its arrival, the original contract of shipment, as evidenced by the bill of lading, had terminated, and that the order to forward the car to the Fruit Auction Company operated as a new contract, and that so far as the record shows the damage may have occurred during this movement, and plaintiff having failed to show the negligence alleged cannot recover against the defendant.

The question is not wholly free from difficulty. Some of the cases seem to hold that the shipment should be considered as a continuous one and not completed until arrival at its ultimate destination. As distinguishing, however, the facts in such cases from those now before us, it should be noted that the freight rate on this shipment was not a through rate from Detroit to its destination on the Illinois Central, but was made up of the charges from Detroit to Chicago, the reconsigning charge assessed at Chicago, and the charges assessed by the Illinois Central Railroad Company. There was no indorsement on the original contract of shipment extending it; the only contract between the parties called for a delivery at Chicago. This was accomplished by placing the car on defendant’s public delivery team track and the giving of notice. In Gregg v. Illinois Cent. R. Co., 147 Ill. 550, such delivery was held to complete the contract between the parties.

This court has had occasion to pass upon this question several times, and the opinions have been harmonious in holding, upon facts like those present, that the contract of shipment was completed and that the initial carrier conld not be held responsible for damages occurring on the reconsigned movement. Among the cases so holding are Pittsburgh, C., C. & St. L. R. Co. v. Hedrich, 202 Ill. App. 48; Deatwyler v. Oregon Ry. & Nav. Co., 176 Ill. App. 597; Fish v. Pere Marquette R. Co., 169 Ill. App. 629. The United States Supreme Court has had occasion to pass upon similar facts. In Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403, the shipments had reached their destination, and stood on a sidetrack for 5 days before they were forwarded to the intrastate destination. The court held that the original contract had been completed and the reconsignment was an entirely separate transaction, the court saying that in obeying the shipper’s further instructions the railroad was acting not as a carrier but simply as a forwarder. A similar case is Chicago, M. & St. P. Ry. Co. v. Iowa, 233 U. S. 334, where coal was placed on an interchange track at Davenport, Iowa, and the consignees notified. Thereafter the coal was reconsigned in the same cars to other Iowa destinations, and it was held that the second movement was a separate shipment entirely disconnected from the original interstate transportation. In Settle v. Baltimore & O. S. W. R. Co., 249 Fed. 913, after the discussion of many cases, the court said in substance that the character of the shipment was to be ultimately tested by the consideration whether or not there was an actual delivery of the shipment to the consignee, and that the effect of such good-faith delivery is not changed by the existence of an original and continuing intention to reship. Other cases to the same import are Wien v. New York Cent. & H. River R. Co., 166 N. Y. App. Div. 766; Sheehy v. Wabash R. Co., 169 Mich. 604; Howatt v. Barrett, 156 N. Y. App. Div. 849.

We are of the opinion that what is said in the above cited cases applies to the present question, and following them we hold that plaintiff by failing to prove that the shipment was damaged while in the possession of the defendant, cannot sustain its judgment.

This point was properly raised by requesting the court to so find in a proposition of law. It was error for the trial court to refuse this.

Other points have been presented as matters of defense, about which we express no opinion, as our holding as above indicated determines the suit. There is no controversy as to the facts, which for the most part are stipulated, and as there can be no recovery in this case the judgment will be reversed and judgment of nil capiat will be entered in this court.

Reversed and judgment here.