text:
    Minnie Warner Mettler et al., Appellants, v. Vespasian Warner et al., Appellees.
    1. Administration or estates—when purchase hy executor illegal. An executor is a trustee and as such is forbidden to acquire in his own right any part of the trust estate. A purchase by an executor of a portion of the trust property, which purchase is conducted through the intervention of a third person, is fraudulent, and in order to set aside the transaction by which an executor acquired assets of the trust estate, it is not necessary to show that the estate has suffered loss thereby.
    2. Trusts—jurisdiction of equity. Equity has jurisdiction in all matters relating to trusts, and of the conduct of trustees in their dealings with property held or controlled by them as such trustees, and of . the obligations of such trustees respecting the trust property to the beneficiaries of such trusts.
    Bill in chaneey. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    Fred Ball, Ingiiam & Ingham, Herrick &. Herrioic and Underwood & Smyser, for appellants; Arthur W. Underwood of counsel.
    Hugh Crea and John Fuller, for appellees, and Vespasian Warner, per se.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The bill in this case alleges that from 1902, until about December 21, 1905, the defendant, Eleanor M. Magill, and one John Warner, deceased, as co-partners, conducted a general banking business in the city of Clinton, under the firm name of John Warner & Company, with a paid up capital of $50,000, of which John Warner contributed five-sixths and Eleanor M. Magill, one-sixth; that said firm succeeded to an established banking business which had theretofore been. conducted for more than forty years by a series of firms, of all of which firms the said John Warner was an active member; that for many years prior to the death of said John Warner the defendant, Vespasian Warner, had acted as the legal adviser of John Warner and of the firm of John Warner & Company; that for at least fifteen years last past the said Vespasian Warner had been the sole personal and confidential counsel and adviser of the defendant, Eleanor M. Magill, and held a general power of attorney authorizing Mm to transact her business as her attorney in fact; that said Eleanor M. Ma-gill is about seventy years of age, of frail physique and without extended business experience, and has never taken any active share in the conduct of the firm business, but is under the control and domination of Vespasian Warner to such an extent -as to deprive her of capability of independent action concerning business matters; that on December 21,1905, John Warner died, leaving his last will and testament which was admitted to probate in the county court of DeWitt county at the January term 1906, of which will the defendant, Vespasian Warner, qualified as executor, and has since acted as such, and said estate is still unsettled; that by the terms of the said will the complainants, Minnie Warner Mettler and Arabella Warner Bell, axe entitled each to one-fourth of the personal property of which John Warner, their father,, died possessed, after payment of debts, and of the widow’s claims; that as beneficiaries under the will complainants occupy toward Vespasian Warner, as executor, the position of cestuis que htistents and that he is made by law trustee in behalf of complainants; that as such trustee it is and always has been his duty to refrain from dealing in his own interest with all or any assets of the estate of John Warner, deceased, or from obtaining personal advantage from dealing with said assets, including the interest of the estate in the banking firm of John Warner & Company; that said Eleanor M. Magill is likewise by law a trustee of the assets of said firm for the benefit of the estate of John Warner, her deceased co-partner, and is, as such surviving partner, required to so conduct the affairs of said firm and deal with its assets as fully to protect the interest therein of the estate of John WTarner, deceased, in which complainants are interested; that in order to carry into execution the fraudulent and corrupt scheme devised by him to secure, without fair compensation and without the consent of complainants, the ownership of the interest of said John Warner in said bank, Vespasian Warner caused Eleanor M. Magill, as surviving partner, to file an inventory of the partnership property in the county court of DeWitt county, and procure the appointment as appraisers of the property, of the defendant Lewis, at the time cashier of the bank, Fred H. Magill, a nephew of Eleanor M. Magill, and Fred I. Cline, at the time a clerk in the employment of the bank; that complainants are informed and believe that without the knowledge of Eleanor M. Magill, and without the knowledge of any person interested in the estate of John Warner, Vespasian Warner on or about April 10, 1906, pretended to sell the interest belonging to John Warner, deceased, in the business affairs of the banking firm to the defendant Eleanor M. Magill, at a price fixed by Vespasian Warner on his own motion and responsibility, without conference with any other persons, which price was far below the actual value of said assets and property, to wit: for the sum of $81,193.60; that the fair cash value of the interest belonging to John Warner, deceased, in said assets and property, was at least $100,000 over all liabilities; that in said pretended sale Vespasian Warner acted as attorney for Eleanor M. Magill, who, as surviving partner, then controlled the property as trustee for the estate of John Warner, her deceased partner; that said defendant Magill, individually, and nominally for her own benefit, but in fact for Vespasian Warner, purchased the interest in the trust property belonging to the estate of John Warner, deceased, of which she was by law trustee; that said proceedings were taken by said Vespasian Warner, without the* knowledge or concurrence of Eleanor M. Magill, and that she was thereafter compelled by Vespasian Warner to give her consent thereto; that Vespasian Warner then pretended to act as executor of the estate of John Warner, deceased, for the fraudulent and improper purpose of lending to said pretended sale, made in fact to himself, the appearance of receiving the approval of the estate of John Warner, deceased, and of its beneficiaries, though no actual or genuine sale of said assets or business or interest therein was in fact made, nor was any actual settlement of the partnership made, either on April 10, 1906, or at any time since December 21, 1905, nor was any payment made on April 10, 1906, or since December 21, 1905, by the defendant Magill, personally or through Vespasian Warner as her attorney in fact as buyer, to Vespasian Warner or any other person as seller of said property; that said simulated and colorable transaction in fact existed only in the writing of sundry book entries made or caused to be made by Vespasian Warner, in order to manufacture evidence to establish and bolster up said irregular and illegal attempt to transfer title to said assets cr some interest therein; and said transaction occurred without the transfer in fact of any cash or valuable thing from any person as buyer to any person as seller of said assets or property or interest therein; that after the making of said pretended sals and before taking steps to secure by concealment and imposition a colorable approval of said transaction by the County Court of DeWitt county, Vespasian Warner reported to Eleanor M. Magill said illegal and void pretense of sale of said property, required her consent thereto and persuaded and induced her to consent that defendant, Vespasian Warner, should become a partner in the banking business with her, and further persuaded and induced her to agree that John Q. Lewis, cashier of said bank, in consideration of his assistance rendered Vespasian Warner in consummating and concealing said fraudulent scheme, should likewise become a partner in said banking firm, and that said Eleanor M. Magill, under the influence of Vespasian Warner, consented to' said terms and conditions, and signed the report of said pretended sale, prepared by or under the direction of Vespasian Warner, to said county court of DeWitt county, and that no notice of said sale or of the filing of a report thereof or of any application for its confirmation was given by the defendants or any of them to the complainants or either of them, or to any other person interested in the estate of said John Warner, deceased, or in its assets; but that thereafter, about July 13, 1906, by concealing the facts and circumstances of said pretended sale or transfer and of the interest of Vespasian Warner therein, and by concealing the fraud thereby practiced upon the complainants and upon the estate of John Warner, by Vespasian Warner, an order was procured from said county court approving said sale and report, but without knowledge of any of the fraudulent transactions involved therein; that said proceedings were taken without the knowledge of complainants, who discovered the same by chance, long after the expiration of the term of said county court at which the order of approval was secured; that in order to prevent complainants from learning of or suspecting the existence of such corrupt and fraudulent transaction defendants have continued to and still do carry on the business of said banking firm without apparent change of any sort; that from and after the date of said preténded sale to Eleanor M. Magill, Vespasian Warner claimed title to the whole interest of the estate of John Warner, deceased, in said banking business, except a one-twelfth interest, assigned to John Q. Lewis, wholly or partly in consideration of his silence and aid- in said corrupt scheme, and that a pretended payment was made by Eleanor M. Magill to Vespasian Warner, as executor, representing supposed proceeds of said pretended sale, but that in fact no money has been paid to said defendant Warner; that said defendants so juggled with the funds of the estate of John Warner, deceased, held by said Vespasian Warner, executor, and with the funds owned by depositors in the banking firm of John Warner & Company, and in possession of Eleanor M. Magill as surviving partner, as to present on the books of account of said executor and said bank the appearance of an actual payment; but that in fact no payment has ever been made; that the debts of John Warner & Company have not been paid, either wholly or in part; that by said pretended sale said Vespasian Warner has become the alleged owner, though the transaction solely arranged by himself, for his own benefit, of the interest of John Warner, deceased, in the banking firm of John Warner & Company, or a large part thereof, at a price far below its real value, to the detriment of complainants as beneficiaries in the estate of John Warner, deceased, and without t.heir knowledge.

The bill prays that said pretended sale of the property and assets of the banking firm of John Warner & Co. or the interest of the estate of John Warner, deceased, therein to the defendant, Eleanor M. Magill, for the benefit of the defendants Vespasian Warner and John Q. Lewis, by virtue whereof Vespasian Warner claims a large interest in said bank, be set aside and declared void; that the approval of said sale, procured by fraud by Vespasian Warner, in the County Court of DeWitt county be annulled and vacated; that Eleanor M. Magill, personally and as surviving partner, be required to account for the profits earned by said bank since the death of John Warner and to pay over five-sixths of said profits to said estate and to bear and assume all losses made by said business during said time; that Vespasian Warner be restrained from further dealing with the settlement of the interest of said estate in said banking firm, and that the court, by the master in chancery, or other representative, take charge of and manage the said settlement and protect the interest of the estate of said John Warner therein; that the defendant Eleanor M. Magill, personally and as surviving partner, be required diligently and according to law to wind up the affairs of said bank, realize upon its assets and pay its debts; and that the defendants be restrained from using for their personal advantage the name of John Warner & Company, and conducting under said name a banking business for their own benefit and advantage, and that complainants have such other relief as equity may require. To this bill the defendant Vespasian Warner in his own proper person filed his answer, and in substantially, the like phraseology, was filed the joint and several answers of the defendants Vespasian Warner, as executor of the last will and testament of John Warner, deceased, Eleanor M. Magill, personally, and as surviving partner of John Warner & Co., and John Q. Lewis. In and by their said answers said defendants denied the material allegations of the bill, and for further answer allege the facts relative to the transactions involved to be, in substance, as follows: That on December 21, 1905, John Warner and Eleanor M. Magill were co-partners doing a banking business under the firm name and style of John Warner & Co., in Clinton, Illinois, when and where John Warner died testate; that on February 12, 1906, defendant Magill, as surviving partner, filed in the county court of said county a petition representing she was surviving partner of said firm composed of John Warner and said defendant Magill; that said John Warner died on December 21, 1905; that said firm was in existence and doing business at said date and was the owner of personal property and assets used in said business, and .praying for the appointment of appraisers to appraise the co-partnership property of said firm; that on February 19, 1906, said county court appointed John Q. Lewis, Fred H. Magill and Fred I. Cline appraisers to appraise the personal estate of said co-partnership, and on the same day they, took their oaths and duly appraised said property; and on February 21, 1906, filed their appraisement in the county court, which was approved by said court on April 7, 1906; that on February 21, 1906, defendant Magill, as surviving partner, filed in said county court her inventory of the co-partnership property.of the late firm; that on February 27, 1906, said county court ordered all objections thereto to be filed on or before March 9, 1906, and on May 31, 1906, said inventory was duly approved by said county court; that on May 12, 1906, defendant Magill filed in said county court her final report as surviving partner, setting forth that on April 10, 1906, she has assumed all liabilities of said firm and paid to defendant Vespasian Warner, as executor of John Warner, deceased, $81,193.60, and agreed to collect as much of and as soon as possible the doubtful and worthless claims in said report itemized, and when collected to pay five-sixths of the net proceeds thereof to said executor in full satisfaction of all interest of said John Warner at his death, and of Vespasian Warner, executor, in the co-partnership business, and asked the court to approve her action; that on June 30, 1906, it was ordered that all objections to said final report of defendant Magill be filed in said county court on or before July 10,1906, and on July 17,1906, said county court approved said final report, and on January 30, 1907, defendant Vespasian Warner filed his report as executor of John Warner, from December 27, 1905, to January 27, 1907, wherein he accounted for and charged himself with $81,-193.60, received from defendant Magill, as surviving partner, on April 10,1906; that on February 13, 1907, complainants filed objections to said report and objections to said item received from defendant Magill; that on December 30, 1907, said objections were overruled, and said executor’s report approved, and complainants prayed and perfected an appeal to the circuit court of DeWitt county, where the same is now pending and undetermined; that on April 12, 1906, defendants Vespasian Warner, Eleanor M. Magill and John Q. Lewis entered into a co-partnership for the purpose of doing a general banking business in the city of Clinton aforesaid, under the name and style of John Warner & Co., with a capital of $50,000, paid up in cash, whereof Vespasian Warner paid nine-twelfths, Eleanor M. Magill two-twelfths, and. John Q. Lewis one-twelfth; that the same was a new co-partnership and distinct from the firm of John Warner & Co. The complainants filed their replications to" said answers and the cause was referred to the master in chancery to take proofs and report the same together with his findings thereon. The report of the master in chancery after réciting certain facts as found by him, concluded with a finding that the amount received by Vespasian Warner as executor was the fair and real value of the interest of John Warner in the assets of said co-partnership, and that complainants have not been injured thereby, and recommended that complainants’ bill should be dismissed for want of jurisdiction. Objections filed by the complainants to the findings of the master were overruled by him, and upon such objections standing as exceptions to such findings a hearing was had before the chancellor, who overruled all said exceptions, save the exception to the finding of the master that the court was without jurisdiction to hear and determine the cause, which exception was sustained by the chancellor, and a decree entered dismissing complainants’ bill for want of equity. To reverse such decree the complainants prosecute this appeal, and the defendants have assigned cross-error upon the action of the chancellor in sustaining complainants’ exceptions to the finding of the master upon the question of jurisdiction.

Upon the merits, of the case the uncontroverted facts established by the record are substantially as follows: For a period of more than thirty years prior to 1902, a co-partnership known as John Warner & Company had conducted a private bank in the city of Clinton, with a paid up capital of $50,000. During that time, by reason of the death and withdrawal of several of the partners, the personel of the partnership had undergone various changes, until in 1902, when John Warner owned a five-sixths interest in the business of said co-partnership and the defendant Eleanor M. Magill owned a one-sixth interest therein, and said last named co-partnership so continued until the death of John Warner on December 21, 1905. Following the death of John Warner there was some litigation relating to an ante-nuptial contract entered into between said John Warner and his widow, Isabella E. Warner, the mother of the complainants in this bill, and the step-mother of Vespasian Warner, the details of which litigation are not necessary to be here recited. .By his last will and testament duly admitted to probate John Warner bequeathed to each of the complainants a one-fourth part of his personal estate and named the defendant, Vespasian Warner, as his executor and trustee, and said Vespasian Warner thereafter qualified as such on January 29, 1906. On February 19, 1906, the defendant, Eleanor M. Magill, presented to the county court her petition as surviving partner of John Warner, deceased, for the appointment of appraisers to appraise the copartnership property of the late firm of John Warner & Company, and upon the same day the defendant John Q. Lewis together with Fred H. Magill and F. I. Cline, were appointed by the court as such appraisers. On February 21, 1906, the defendant, Eleanor M. Magill, filed her inventory in said county court of the co-partnership property, wherein the assets of said co-partnership consisting of cash on hand, bills receivable, amount due from banks, amount due on overdrafts, amount of interest earned and unpaid and the value of furniture and fixtures, was fixed at $789,059.48, and the liabilities consisting of deposits and unpaid expenses was fixed at $698,445.11, and wherein the value of the assets over the liabilities was fixed at $90,614.37, and wherein also the amount of doubtful and worthless claims was fixed at $3,340.02. On the same day the appraisers appointed by the court filed their appraisement of said co-partnership property, which appraisement as to the assets and liabilities of said co-partnership was identical with the inventory filed by the surviving partner. Thereafter, it was ordered by the county court that objections to said inventory should be filed on or before March 8, 1906, and that objections to said appraisement should be filed on or before April 17, 1906, and on May 31, 1906, no objections having been filed thereto, said inventory and appraisement were approved by the court. On April 10, 1906, it was ascertained that the net earnings of the co-partnership business since the death of John Warner amounted to $6,817.95, which amount added to $90,614.37, being the net assets of the co-partnership as fixed by the inventory and appraisement, amounted to $97,432.32 of which amount, upon a partnership accounting, five-sixths or the sum of $81,193.60, represented the interest of the estate of John Warner, and one-sixth or the sum of $16,238.72, represented the interest of Eleanor M. Magill in said co-partnership. On that day the defendant Eleanor M. Magill as surviving partner of John Warner signed two checks drawn on John Warner & Company, as follows: one check payable to her own order for $16,238.72, and one check payable to the order of the defendant Vespasian Warner, executor of John Warner, for $81,193.60. ISTo money corresponding with the amount of said checks or any money whatever was actually transferred thereby, but said checks were passed through the bank by crediting the same upon the books of the bank to the individual accounts of the parties, and charging the same to an account designated “Eleanor M. Magill, survivor.” At the time of giving said checks Eleanor M. Magill had a cash credit in said bank of between $10,000 and $12,000. By this transaction the defendant Eleanor M. Magill assumed to become the owner of the entire assets of the bank and to become responsible for all liabilities of the bank. On April 12, 1906, being two days thereafter the defendants Vespasian Warner, Eleanor M. Magill and John Q. Lewis entered into a co-partnership agreement to conduct a general banking business, under the firm name of John Warner & Co., with a paid up capital of $50,000, nine-twelfths of which was contributed by Vespasian Warner, two-twelfths by Eleanor M. Magill and one-twelfth by John Q. Lewis. On May 12, 1906, the defendant Eleanor M. Magill, filed in the county court what purported to be her final report as surviving partner of John Warner, deceased, and by which she represented to the court that on April 10, 1906, she assumed all liabilities of the co-partnership, and paid to Vespasian Warner, as executor of said John Warner, deceased, $81,193.60 and agreed to collect as much of and as soon as possible certain designated doubtful and worthless claims of said co-partnership amounting to $3,152.02, and as soon as the same was collected to pay five-sixths of the net proceeds thereof to said executor in full satisfaction of all the interests of the estate of John Warner, deceased, in said co-partnership. On June 30, 1906, it was ordered by the court that all objections to said final report be filed on or before July 10 following, and on July 17, following, the court entered an order approving said final report.

On January 30, 1907, Vespasian Warner, as executor, filed his report in the county court wherein he charged himself with $81,193.60 received by him from Eleanor M. Ma-gill, as being in full of the assets of the co-partnership of John Warner & Company. To that item in said report the complainants in this bill filed their objection which objection was overruled by the county court, and from the order overruling said objection said objectors appealed to the circuit court of said county where said appeal is now pending and undetermined.

It is disclosed by a clear preponderance of the evidence in this record that at the time of the transactions here involved the defendant Eleanor M. Magill was about eighty years of age; that she was frail in body and wholly incapable of understanding or appreciating the business in which she was a co-partner, and the various steps which were nominally taken by her in assuming to purchase the five-sixths interest ,of her deceased co-partner in the co-partnership assets, and her action in assuming the liabilities of such co-partnership; that for many years prior to the death of John Warner, and during the time the transactions here involved were pending and determined, the defendant, Vespasian Warner, was her attorney in fact and her sole adviser in all matters relating to her business affairs. It is further clearly apparent from the evidence that every detail of the transactions here involved was contrived by Vespasin Warner, and that so far as Mrs. Magill was required to participate' therein she was wholly subservient to his will and direction, and signed any papers which were presented to her for signature by him, upon his mere representation that what she was called upon to do in the premises would best subserve her interests. It is admitted by Vespasian Warner that immediately upon the death of his father he conceived the thought of instituting either a national or private bank in Clinton, and the inference is irresistible that he then contemplated the organization of a bank which should be the immediate successor of the banking business, including the assets and good will of John Warner & Company. Vespasian Warner testified that he had no understanding with Mrs. Magill prior to April 12, 1906, being the second day after the alleged transfer to her of all the interests of her deceased partner in the firm business, that he, together with Mrs. Magill and John Q. Lewis, should enter into a new co-partnership under the firm name of John Warner & Company, and that such matter was not considered by the parties until after the transaction of April 10, 1906, was closed. In view of the fact that Mrs. Magill was wholly subservient to the wishes of Vespasian Warner, and by reason of his influence over her was willing to comply with any suggestion from him involving the business in hand, it is not improbable that there was no understanding between Warner and Mrs. Magill, on or prior to April 10, 1906, that a new co-partnership should be formed on April 12, 1906. Warner being fully assured of his ability to induce Mrs. Magill to act according to his directions, there was no occasion for a preliminary understanding. The defendant John Q. Lewis testified that negotiations looking to the formation of a new co-partnership on April 12, 1906, had been pending for at least three days prior to that date, and upon a consideration of all the evidence in the record there is no escape from the conclusion that the defendant Warner conceived and carried to a successful termination the scheme whereby he became the sole owner of the five-sixths interest belonging to the estate of John Warner in the partnership business. There is no evidence in the record tending to show that he repaid to Mrs. Magill the $81,193.'60 which it is claimed she paid to Warner, as executor, for the five-sixths interest in the co-partnership, but the whole transaction in that regard was so accomplished by entries in the books of the co-partnership that no liability was incurred by either of the said parties to the other in the execution of the transaction. We are compelled to hold upon the evidence in this record that the alleged sale by Vespasian Warner, as executor of the last will and testament of John Warner, deceased, of the five-sixths interest of said John Warner, in the co-partnership business of John Warner & Company to the defendant Eleanor M. Magill, was in fact a sale of said interest in said co-partnership to himself personally. A recital in detail of the evidence in the record upon which this holding is predicated would unduly extend this opinion. It is sufficient to say that a most careful examination and consideration of such evidence absolutely forbids any conclusion other than the one above stated. It is uncontroverted that the complainants had no actual notice of the proceedings in the county court relating to the accounting by. the defendant Eleanor M. Magill as surviving partner of the co-partnership business of John Warner & Company, or of the disposition of the interest of John Warner, deceased, in said co-partnership, until December, 1906, being five months after the approval by the county court of what purported to be the final report of Mrs. Magill as surviving partner of John Warner & Company.

It is elementary law that an executor is a trustee and as such is forbidden to acquire in his own right any part of the trust estate. Williams v. Walker, 62 Ill. 517; Lagger v. Mutual Union Loan Ass’n, 146 Ill. 283; Burnes v. Edwards, 163 Ill. 494; Elting v. First Nat. Bank, 173 Ill. 368; Miller v. Rich, 204 Ill. 144; Roberts v. Weimer, 227 Ill. 138. Also that a purchase by an executor of a portion of a trust estate, which purchase is conducted through the intervention of a third person is fraudulent per se. Miles v. Wheeler, 43 Ill. Ill. 123; Nelson v. Hayner, 66 Ill. 487. Also that in order to set aside a transaction by which an executor has indirectly acquired assets of the trust estate it is not necessary to show that the estate had suffered loss thereby. Boberts v. Weimer, supra.

The defendants do not attempt to controvert the law as thus stated, but content themselves with the statement, first, that it has no application to the facts in the case; and second, that if it has any such application the exigencies of the situation justified a disregard by them of the law. What we have heretofore said constitutes a complete answer to the first of said contentions, and in the absence of any argument save that of mere expediency in support thereof and of any authority therefor, we cannot give our assent to the second contention.

The record discloses an utter disregard by the defendants of the rights of the complainants in the subject-matter of the transactions here involved, and suggests that if the defendants had not ignored the rights of the complainants in the premises this litigation would have been avoided.

The cross error assigned by defendants questions the jurisdiction of a court of equity to hear and determine the issues here involved, upon the ground that complainants have an adequate remedy at law in the county court with respect to all matters relating to the settlement by the surviving partner of the partnership business of John Warner & Company. The report filed in the county court by Eleanor M. Magill as surviving partner, wherein she represented to the court that she had purchased the interest of her deceased partner in the partnership business and had assumed all the liabilities of .said co-partnership, was, in view of the facts and circumstances disclosed by the evidence in this case, erroneous and fallacious, in that it failed to disclose the transaction as it was in fact consummated by and on behalf of the defendant Vespasian Warner, as heretofore shown. During the time which elapsed between the approval by the county court of the said report and the ascertainment by the complainants of the fact that said report was erroneous and fallacious in the respect mentioned, the defendants Vespasian Warner and John Q. Lewis wrongfully claimed to have acquired certain rights which they asserted in the partnership assets and business, with at least the tacit concurrence of the surviving partner Eleanor M. Magill, and the said Eleanor M. Magill personally and as surviving partner thereby became liable to account to the estate of John Warner, deceased, for the conduct of said partnership business during said time, and the time subsequent thereto, until such partnership business should be closed up in the manner provided by statute. The county court was without jurisdiction to afford the complainants an adequate remedy, whereby the rights of all the parties involved might be ascertained and determined, and to order an accounting by said Eleanor M. Magill personally and as surviving partner, of the business of the co-partnership. As neither the defendant, Eleanor M. Magill, in her personal capacity, or as surviving partner, nor the defendant John Q. Lewis, were parties to the hearing upon the report of Vespasian Warner, as executor of the last will and testament of John Warner, deceased, it is plain'that as to them the complainants had no remedy in the county court upon a hearing on said executor’s report. Courts of equity having general jurisdiction in all matters relating to trusts, and of the conduct of trustees in their dealings with property held or controlled by them as such trustees, and of the obligations of such trustees respecting the trust property to the beneficiaries of such trusts, it must be held that the remedy here invoked by the complainants could only be adequately afforded them in a court of equity.

The decree of the circuit court will be reversed and the cause remanded with directions to said court to enter a decree setting aside the pretended sale of the property and assets of the co-partnership business of John Warner & Company, and the interest of the estate of John Warner, deceased, in the property and assets of said co-partnership, by the defendant Eleanor M. Magill as surviving partner to herself individually; also vacating the order of the county court of DeWitt county approving of said sale; and requiring the said Eleanor M. Magill, personally and as surviving partner of the firm of John Warner & Company, to render a just and true account of the conduct of said co-partnership business since the death of John Warner, and to pay to the executor of the last will and testament of John Warner, deceased, five-sixths of the profits realized in the conduct of said co-partnership business during said time, over and above the amounts properly and necessarily expended by her in conducting said business; and further, directing said Eleanor M. Magill, as such surviving partner, to proceed with all reasonable diligence in the county court of DeWitt county, to there settle the co-partnership business of John Warner & Company in the maimer provided by law.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Michael Beyer, Administrator, Appellee, v. Peoria, Bloomington & Champaign Traction Company, Appellant.
    1. Damages—what competent in action for death caused, by wrongful act. It is not error for the court to permit the plaintiff in such an action to show that the deceased left surviving him his wife and five children who constituted his family and that such deceased contributed to the support of such family, there being no attempt made to show that such widow and children were dependent or helpless.
    2. Evidence—upon what expert testimony competent. Held, that it was not error to permit a witness called as an expert upon the part of the plaintiff to testify as to whether or not certain boards placed by the defendant upon its messenger wire would in the condition in which he observed them afford any protection to the electric light wires at the point in question.
    3. Evidence—when objection does not avail. An objection to a question as not proper re-direct examination does not reach the form of the question.
    4. Evidence—what incompetent m action for death caused by dee

      trio wires. Held, that evidence introduced by the plaintiff over the objection of the defendant was incompetent which tended to show that upon one or more occasions when cars- were being operated upon a certain street the trolley came off the trolley wire and was brought into contact with certain electric light wires whereby said electric light wires were burned and thereby damaged.
    5. Evidence—idhat not part of res gesta;. Evidence of a witness of certain circumstances which he claimed impressed certain alleged facts upon his mind in not part of the res gestw and is incompetent.
    6. Evidence—propriety in rebuttal. Evidence properly admissible in chief may in exercise of the discretion of the court be allowed to be introduced in rebuttal.
    7. Instructions—when modification upon exercise of eare erroneous, The insertion of the word “alone” in an instruction which in - effect authorized a verdict for the plaintiff notwithstanding the deceased at and immediately prior to his death had failed to exercise care and caution for his own safety, is erroneous and ground for reversal.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    Prettyman, Velde & Prettyman and J. H. Manning, for appellant; George W. Burton, of counsel.
    George O. Eider and W. E. Curran, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action in case by Michael Beyer, administrator of the estate of Henry Beyer, deceased, against the Peoria,. Bloomington & Champaign Traction Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. A trial of the cause in the circuit court of Tazewell county resulted in a verdict and judgment against the defendant for $7,500, to reverse which judgment the defendant prosecutes this appeal.

The declaration contains four counts. The first count alleges in substance that on April 1, 1907, and subsequent' thereto, the defendant negligently kept and maintained on Bloomington street in the village of Morton, high tension electric wires which were charged with a voltage of 3,300 volts and known by the defendant to be dangerous to human life; that said wires were connected with a certain messenger wire and trolley wire suspended at a height of about 18 feet from the ground and carrying a voltage of 3,300 volts, and known by the defendant to be dangerous to human life; that said system of wires was used by the defendant for propelling electric cars; that it was the duty of the defendant to so keep, use and guard its said wires that they would not come in contact with or convey electricity to a certain electric light wire which crossed over and above said messenger and trolley wires on said Bloomington street, but that defendant so negligently placed, kept and used its said wires on said street that the same came in contact with and communicated electricity to said electric light wire; that said electric light wire was not charged with electricity until it became so charged through contact with said messenger and trolley wires; that on April 25, 1907, plaintiff’s intestate without having knowledge that said wires had come in contact, and without having knowledge that said electric light wire was charged with electricity, and believing that said electric light wire was a dead wire, came in contact with said electric light wire while the same was so charged with electricity by contact with said messenger and trolley wires, and was thereby then and there without fault on his part instantly killed by reason of the said negligence of the defendant; that the said deceased left him surviving Bena Beyer, his widow, and Ida E., Edward J., William H., Phillip M. and Henry O. Beyer his minor children and next of kin, and who by reason of his death had been deprived of their means of support. The second count is substantially the same as the first except the allegation that the deceased casually came in contact with said electric light wire. The third count contains a further allegation that certain electric light wires were placed on said Bloomington street under and by virtue of an ordinance of the village of Morton before the construction by defendant of its said high tension wires and its messenger and trolley wires on said street; that it was the duty of the defendant in placing its said system of wires to so construct, keep and guard the same that they would not come in contact with or convey electricity to said electric light wires before that time placed along and across said street; that defendant so negligently placed, kept, managed and used its said system of wires and so negligently left the same unguarded at a certain point on said Bloomington street that said messenger wire of the defendant came in contact with one of said electric light wires there suspended above said messenger wire, whereby said electric light wire, which before said contact with said messenger wire was not charged with electricity thereby became instantly charged with the full voltage of electricity carried by said messenger and trolley wires; to wit: 3,300 volts and thereby became dangerous to human life; that plaintiff’s intestate then and there being one of the owners of said electric light wires located on said street, without having knowledge that said system of wires of the defendant was in contact with said electric light wires, and without having knowledge that said electric light wires had thereby become dangerously charged with electricity, and believing that said electric light wires were then and there dead wires, without fault on his part, while working on said electric wires at the time and place aforesaid, came in contact with said electric light wires and was thereby instantly killed. The fourth count further alleges that the said electric light wires were placed along and across said Bloomington street by the Horton Light, Heat, Power and Water Company under and by virtue of an ordinance of the said village of Horton; that it was the duty of the defendant to keep its said messenger and trolley wires at a safe distance from the said electric light wires and not to change or raise its said messenger and trolley wires into close proximity to said electric light wires without giving notice of such proposed change to said Horton Light, Heat, Power & Water Co.; that said defendant, without notice to said company and without notice to the deceased and without his knowledge, negligently raised its messenger and trolley wires to a point where they were in dangerous proximity to one of said electric light wires and thereby came in contact with one of said electric light wires; that at the time of his death the plant of said Morton Light, Heat, Power & Water Co., was shut down and the electric current generated in said plant was shut off from all of the said electric light wires; that while the deceased was working on said electric light wires as an agent and servant of said company, and without fault or knowledge on his part, he was by reason of the current of electricity induced by contact of said electric light wires with the messenger and trolley wires of the defendant through the negligence of the defendant aforesaid, instantly killed. A demurrer interposed by the defendant to the declaration and each count thereof was overruled by the court and thereupon defendant pleaded the general issue.

The uncontroverted facts pertinent to the issues involved are substantially as follows: In December 1901, the municipal authorities of the village of Morton granted to Moses S. Beyer, Frank Beyer and George Grimm, constituting a firm known as Beyers Bros. & Co., a franchise to use the streets of said village for the location, construction and maintenance of electric light poles and wires in connection with the operation of an electric light plant theretofore existing in said village, and subsequent thereto the deceased and his two brothers Moses and Frank Beyer became successors of the said firm of Beyer Bros. & Co. On March 15, 1907, articles of incorporation were issued to the Morton, Light, Heat, Power and Water Co., hereafter designated as the Morton company, and said corporation succeeded to the business of the co-partnership theretofore existing. In May, 1906, the defendant by virtue of an ordinance of said village of Morton ivas granted the right to construct and operate an electric railway on Bloomington street in said village, in and by which ordinance it was provided among other things, that the trolley wires of the defendant should be suspended at a height of not less than 18 feet above the rails. The poles and wires of the Morton company were located on the south side of Bloomington street and upon the north side of said street were located the poles and wires of two separate telephone companies. Prior to March 29, 1907, negotiations had been pending between the Morton company and the defendant relative to the raising by the Morton company of its electric light wires so as to prevent wires of the defendant at points on said Bloomington street where said electric light wires of the said Morton company crossed and were suspended above the messenger and trolley wires of the defendant, and on that day the defendant gave to the Morton company its check for $275 as in “full payment for all labor, material and claims of whatsoever nature due to the removal of all wires, street lights, hangers, etc.,' which are required by the construction of the trolley wires and supports through Morton,” which check was cashed by the Morton company on April 4th, following. At the time said check was given the defendant knew that the Morton company did not have the necessary poles and material to perform the conditions of the agreement, and such poles and material were ordered by the Morton company on April 8th or 10th. The poles so ordered did not arrive in Morton until April 27th. On April 13, 1907, the defendant commenced to operate its electric cars on Bloomington street. On April 24, 1907, the Morton company placed a new pole on the south side of Bloomington street at a point opposite the residence of the deceased in lieu of an old pole which had then broken, and the electric light wires extending north and east from said pole having been cut or taken down were wrapped around said new pole. On April 25, 1907, the deceased with his son William, after having turned off the switches at the plant of the Morton company so as to cut off the current of electricity from the wires on Bloomington street, which required repairing, went to the place indicated and. commenced the work of repairing said wires. When the deceased had taken down the wires which had been wrapped around the new pele on the day preceding, as heretofore stated, and was about to climb said pole having said wires in his hands, he was almost instantly killed by a current of electricity of approximately 3300 volts which was communicated to said wires by the messenger wire of the defendant at a point on Bloomington street some distance west, known as Mosiman’s crossing, where the electric light wires of the Morton company extending north on Deneen avenue were suspended above the messenger and trolley wires of the defendant without any guard having been placed by the defendant above said messenger and trolley wires.

It is claimed by the plaintiff that on the day preceding the death of Ms intestate the defendant raised its messenger and trolley wires on Bloomington street at the Mosiman crossing, and for some distance east and west of that point by removing the “I” bolts attached to the brace wires, which supported the messenger and trolley wires, from the holes in the poles in which said bolts were theretofore inserted to other holes in said poles which were bored from to 14 inches above the lower holes, and that the messenger wire was thereby raised so that the same was only from 1 to 2 inches below the electric light wires at said Mosiman crossing; that said messenger and trolley wires of the defendant were so raised by it without notice to, and without the knowledge of the deceased, or the Morton company. Several witnesses called on behalf of the plaintiff testified unequivocally to the raising by the defendant of its messenger and trolley wires in the manner described, and to the close proximity of the electric light wires to the messenger wire of the defendant, after said messenger wire was so raised. Plaintiff also introduced evidence tending to show that such close proximity of the defendant’s messenger wire to the electric light wires constituted a most dangerous condition; that neither the deceased nor the Morton company had any notice or knowledge of the alleged raising by the defendant of its messenger and trolley wires at the place indicated, and of the dangerous condition there existing by reason thereof, and that the deceased at and before his death was in the exercise of due care and caution for his own safety. In this state of the record, so far as the evidence introduced on behalf of the plaintiff was concerned, the giving of the peremptory instruction tendered by defendant at the close of such evidence would have been palpably unjustifiable and erroneous. The contention of defendant that the memorandum contained in the check for $275, given by it to the Morton company constituted a contract whereby the Morton company was required in any event to furnish the material and perform the work there mentioned immediately upon the acceptance of said check, and that the defendant was warranted on April 24, 1907, in acting upon said contract as though the same had been performed in fact by the Morton company, and that the failure of the Morton company to perform' said contract prior to that date constituted such contributory negligence on the part of the Morton company and of the deceased, the president of said company, as precludes a recovery in this case, is wholly untenable. ZESTo time was fixed in said alleged contract for its performance by the Morton company and the law would require its performance within a reasonable time, but admitting that such reasonable time had elapsed the defendant would not be warranted in raising its messenger and trolley wires so that the same would come in sufficiently close contact with the wires of the electric light company to create a condition dangerous to human life, without notice to said Morton company.

It was claimed on behalf of the defendant and evidence was introduced by it tending to establish such claim, that the poles of the Morton company on Bloomington street were so old and decayed that the wires of the Morton company were not properly and sufficiently supported thereby, and that the close proximity of said wires to the messenger wire .of the defendant at the Mosiman crossing was caused by such wires being loose and sagged, and not by the raising of its messenger and trolley wires by the defendant; that the “I” bolts which supported said messenger and trolley wires had never been inserted in the lower holes upon its poles and that said “I” bolts had not been moved from said lower holes to said upper holes; that the deceased and the Morton company had full-knowledge of the close proximity of the electric light wires and the messenger wire at the Mosiman crossing, and that the deceased was guilty of contributory negligence in attempting to handle the electric light wires ■ without the use of'rubber gloves or rubber boots, and while standing on wet ground. Upon the questions of fact involved the evidence is exceedingly close and in hopeless conflict. As the judgment must be reversed and the cause remanded for errors of law hereafter mentioned we forbear a consideration and discussion of the facts other than to say that a most careful examination of the evidence as it appears in the record impels us to the conclusion that if such errors of law had not intervened we would not be justified in holding that the verdict of the jury was palpably wrong.

Over the objection of the defendant the court permitted plaintiff to show that the deceased left surviving him his widow and five children who constitute the family of the deceased, and that the deceased contributed to the support of his wife and children. The amount recoverable as damages, if any, was for the exclusive benefit of the widow and next of kin of the deceased and the plaintiff was required to allege and prove that the deceased left him surviving a widow and next of kin. There was no attempt made to show that the widow and the children of the deceased or any of them were dependent or helpless and it was not error to admit the evidence complained of. P. C. C. & St. L. Ry. Co. v. Kinnare, 203 Ill. 388; Brennen v. Carterville Coal Co., 241 Ill. 610; Goddard v. Enzler, 222 Ill. 462; Swift v. Gaylord, 229 Ill. 330.

It was not error to permit the witness Waggoner called as an expert on the part of the plaintiff to testify as to whether or not certain boards placed by the defendant upon its messenger wire would in the condition in which he observed them afford any protection to the electric light wires at the point in question. The form of the interrogatory propounded to said witness upon his re-direct examination with reference to the office of a certain fuse box maintained by the Morton company upon one of its poles at or near the Mosiman crossing, was objectionable, but the objection interposed by appellant that the question was not proper re-direct examination of the witness was not tenable, and the answer of the witness to said question was not open to objection.

Some evidence was introduced by the plaintiff over the objection of the defendant tending to show that upon one or more occasions when cars were being operated upon Bloomington street the trolley came off the trolley wire and was brought into contact with the electric light wires of the Horton company, whereby said electric light wires were burned and otherwise damaged. This evidence had no bearing upon any issue involved in the case and the negligence of the defendant in that respect could not by any possibility have contributed to the death of the plaintiff’s intestate. In a case as close upon the facts as is the case at bar the admission of such evidence was prejudicial to the defendant.

It is urged that the court improperly struck from the record the statement made by the witness, Hoover, called on behalf of the defendant relative to certain circumstances which he claimed impressed upon his mind the alleged fact that no change was made in the height of the trolley and messenger wires at the Mosiman crossing. The statement was no part of the res gestcBj was mere hearsay and not admissible within any exception to the rule excluding hearsay evidence, and was properly stricken from the record.

Objection is made to the ruling of the court in permitting plaintiff to offer certain evidence in rebuttal. The evidence so offered was properly admissible in chief and the propriety of its admission in rebuttal was within the sound judicial discretion of the trial court, the exercise of which discretion is not assignable as error. Hartrich v. Hawes, 202 Ill. 334; Cleveland Seed Co. v. Moore, 142 Ill. App. 615.

In view of what we have heretofore said relative to the duty of defendant not to raise its messenger and trolley wires on Bloomington street without notice to or knowledge of the Morton company notwithstanding the failure of the Morton company to furnish certain material and perform certain work as required by its contract therefor within a reasonable time after the making of said contract, the objections urged by the defendant to instructions 14a and 15a given at the instance of the plaintiff are not tenable, and the instructions as given could not have operated to its prejudice, but the reference in said instructions to said contract, if such reference was deemed necessary by the plaintiff, would have been more accurate if the time within which the contract was to be performed by the Morton company had been stated to be a reasonable time thereafter.

Instruction number 26 as offered by the defendant was bad for the reason last before stated and should have been refused by the court. The same instruction as modified by the insertion of the word “alone” in the two clauses thereof, and given by the court did not operate to cure the error in the second clause, which was a statement of the law more favorable to the defendant than it was entitled to have given to the jury, and of such error it cannot complain, but the insertion of the word “alone” in the first clause of the instruction in effect authorized a, verdict for the plaintiff notwithstanding the deceased at and immediately prior to his death had failed to exercise due care and caution for his own safety. In this respect the instruction as given was in this case clearly prejudicial to the defendant. To obviate the objection urged counsel for plaintiff attempt to invoke a rule, stated as follows: “A party who asked the court to give improper instructions cannot complain of the court’s action in modifying them even when the court fails to make them good.” Without determining the accuracy of the rule as stated it is not applicable to a case as close upon the facts as is the case at bar. Ryan v. Donnelly, 71 Ill. 100; Crown Coal Co. v. Taylor, 184 Ill. 250. The modification by the court of the 27th instruction tendered on behalf of the defendant is fully sustained by the views heretofore expressed, and the same is true of the modification by the court of the 28th, 29th, 30th and 31st instructions offered by the defendant.

We have carefully considered all of the other errors assigned and argued by defendant but find nothing therein deserving of comment. For the errors indicated the judgment of the circuit court will be reversed and the cause remanded.

!Reversed and remanded.


text:
    Jacob Cohen et al., Appellants, v. Wabash Railroad Company, Appellee.
    Common carriers—lohen instruction m action against erroneous. In an action to recover the value of property alleged to have been lost or destroyed by the negligence of a carrier, an instruction given at the instance of such carrier predicated upon the effect of a limitation of liability by contract, is erroneous if it ignores the question of the negligence of such carrier and authorizes a verdict for such carrier regardless of its negligence.
    Trespass. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge presiding.
    Heard in this court at the November term, 1909.
    Beversed and remanded.
    Opinion filed May 28, 1910.
    Worthington & Reeve, for appellants.
    Bellatti, Barnes & Bellatti, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by Jacob Cohen and Benjamin Cohen, partners, doing business as Jacob Cohen & Son, against the Wabash Railroad Co., to recover the value of a certain property designated as junlc, consisting of paper, wool clips, rubber, rope, etc., delivered by the plaintiffs to the defendant at Jacksonville, Illinois, for shipment to Buffalo, Hew York, and alleged to have been lost or destroyed by the negligence of the defendant. A trial by jury in the circuit court of Morgan county resulted in a verdict for the defendant and a judgment against the plaintiffs in bar of their action and for costs, to reverse which judgment they prosecute this appeal.

On April 23, 1907, the plaintiffs loaded said junk into a freight car, and said car was then sealed by the defendant and removed to a track near its freight depot for shipment. Thereafter, and on the same day the defendant issued to the plain-. tiffs its combined bill of lading and contract of shipment" for said car and contents, wherein the weight of the contents of the car was stated as being 30,000 pounds, “subject to correction.” The first paragraph of the terms and conditions of said contract provided in substance that the defendant and its connecting lines should not be liable for any damage occasioned by improper packing, or from the leakage or breakage of packages, or for any loss or damage occasioned by wet., dirt, fire or loss of weight, or for any loss, damage or delay of goods occasioned by the breaking down of bridges, etc. Plaintiffs represented the weight of the shipment to be 36,954 pounds, and upon the certificate of the weigh master employed by the defendant the net weight of said shipment was stated to be 40,800 pounds. At about six o’clock on the evening of April 26, 1907, the car was examined by defendant’s freight agent and found to be in good order with the doors closed and sealed. At about midnight following, the car with its contents was discovered to be on fire and the fire department was called for the purpose of extinguishing the fire.' Upon the first inspection of the car after the fire was discovered the door on the south side was found to be open 18 inches or 2 feet. In their efforts to extinguish the fire the members of the fire department and one or more employes of the defendant threw out some of the contents of the car, and the fire was finally extinguished by the application of chemicals. On the following day the contents of the car remaining after the fire, was loaded into another car, the net weight of which was there fixed by the defendant at 17,995 pounds. On the arrival of the car at Buffalo the weight of its contents was determined by plaintiffs’ consignee as being 20,775 pounds, and by the agent of the defendant as 20,443 pounds.

Whether or not the defendant was guilty of negligence in failing to properly watch its car, or in any other respect, whereby the fire might have been occasioned or prevented, or in protecting and conserving such of the contents of the caías had been thrown out, were questions of fact for the jury.

The eighteenth instruction given by the court at the instance of the defendant informed the jury if they believed from the evidence the plaintiffs had knowledge of and assented to the provision in the bill of lading by which it was agreed that in case of fire the defendant should not he liable, and if they further believed from the evidence that the goods claimed by the plaintiffs were lost by fire, then their verdict should be for the defendant. This instruction wholly ignored the negligence of the defendant, if any, whereby the goods in question might have been destroyed by fire. It has been repeatedly held in this state that a common carrier cannot by contract avoid liability resulting from a failure on its part to exercise reasonable care to prevent loss or damage to goods consigned to and received by it for shipment. Adams Express Co. v. Stettaners, 61 Ill. 184; C. & N. W. Ry. Co. v. Chapman, 133 Ill. 96; C. & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9; Wells Fargo & Co. v. Cutter, 140 Ill. App. 324, affirmed in 237 Ill. 247. The instruction as given directed a verdict and was clearly erroneous and prejudicial to the plaintiffs. Instructions 14, 19 and 22 given at the instance of the defendant are subject to the like criticism and were improperly given.

For error in giving improper instructions to the jury the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John B. Turner, Appellee, v. Lovington Coal Mining Company, Appellant.
    1. Negligence—what not part of res gestee. The statement of a representative of a defendant corporation charged with negligence made a month after the injury in question is no part of the res gestee and is not competent to bind such corporation.
    2. Evidence—when admission of erroneous, though subsequently stricken out, ground for reversal. If evidence clearly and prejudicially erroneous is admitted over objection, the fact that it may subsequently be stricken out or withdrawn, does not necessarily cure the error.
    3. Evidence—when testimony of physician incompetent. The testimony of a physician in an action for personal injuries as to some of the results which might be feared from the injury suffered by the plaintiff is improper as conjectural and speculative.
    4. Tbial—what conduct ground for reversal. It is improper for counsel for the plaintiff in an action for personal injuries to inform the jury that the defendant carried accident insurance and that the defense was being conducted by counsel not retained by the defendant, and such conduct is ground for reversal.
    5. Instructions—when rulings upon, as to doctrine of assumed risk erroneous. If the court in an instruction improperly limits the defense of assumed risk which is supported by evidence in the cause, if prejudice results a reversal will be ordered.
    Action in case for personal injuries. Appeal from the Circuit Court of Moultrie county; the Hon. William G-. Cochran, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    H. M. Steely and R. M. Peadro, for appellant.
    A. W. Lux and E. J. .Miller, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The declaration in this case contains eleven counts, each of which in varying phraseology set forth, that on February 2, 1908, defendant was sinking a shaft for the purpose of developing a coal mine, which shaft had then reached a depth of 140 feet; that plaintiff was in the employ of the defendant as a laborer engaged in assisting to sink said shaft, and at the time of his injury was working on the night shift at the bottom of said shaft; that defendant had installed upon a platform in said shaft, about 15 feet from the bottom thereof, a steam pump for the purpose of removing water from said shaft; that said shaft was curbed up to the surface of the ground with a covering of joists and boards forming a floor or platform in which a doorway and door was placed, to allow the passage of buckets used in hoisting and dumping the material excavated in said shaft; that extending up said shaft from said pump there was an exhaust pipe with an elbow turn over the top of the curbing and beneath the said floor or platform; that said elbow then broke and a piece thereof fell down the shaft and struck the plaintiff on the head causing the injury complained of.

Three specific grounds of negligence are charged as affecting the duty of the defendant to exercise reasonable care to provide the plaintiff with a reasonably safe place in which to work: First, the use by the defendant of an elbow constructed of cast iron or other brittle material instead of some stronger metal; second, in placing said elbow beneath the platform at the top of the shaft instead of above said platform; and third, in permitting the curbing of the said shaft to sink whereby the said pump was necessarily lowered and its whole weight was suspended upon said elbów. A trial of the cause by a jury resulted in a verdict and judgment against the defendant for $1,250, from which judgment it prosecutes this appeal.

The trial court did not err in not giving to the jury the peremptory instructions tendered by the defendant at the close of the plaintiff’s evidence and at the close of all the evidence. The plaintiff introduced evidence tending to show negligence on the part of the defendant in the respects charged in the declaration; that the plaintiff was in the exercise of due care for his own safety at the time of his injury; that the risk was not one assumed by him; and that his injury did not result from the negligence of a fellow servant, and the giving of a peremptory instruction at the close of plaintiff’s evidence would have been wholly unjustified. The countervailing evidence upon the issues involved, introduced on behalf of the defendant, still left the facts open to the determination of the jury and in this case the giving of a peremptory instruction at the close of all the evidence would have been clearly an infringement by the court upon the province of the jury. As the judgment must be re-' versed and the cause remanded for another trial because of the errors of law hereafter mentioned we forbear a discussion in detail of the evidence adduced upon the trial.

Defendant insists that the court improperly permitted the plaintiff to testify that he had very little education; that he had never gone to school much; that he could read a little, but could not write very much, and that he had never filled any clerical position. This evidence was proper to be con-' sidered by the jury upon the question of damages, and defendant’s objection to its introduction by the plaintiff was properly overruled. Graham v. Mattoon City Ry. Co., 234 Ill. 483.

The statement by the witness Frank Jackson, called on behalf of the'plaintiff, that the defendant placed an elbow in the exhaust pipe above the platform immediately after the accident, was made by him in response to a question to which an objection had been interposed by defendant and sustained by the court. The statement was improper but defendant permitted it to remain in the record without objection.

Over the objection of defendant, Clarence Newlin, a witness called on behalf of the plaintiff, was permitted to testify that about a month after the accident, one Hensen, who the witness thought was the secretary of the defendant company, called upon the plaintiff, and in the course of a conversation then had, stated that the elbow in question was made of cast iron and was used because defendant did not have an elbow made of malleable iron. The alleged statement by Hensen was no part of the res gestee, and its admission was improper. In a case as close upon the facts as is the case at bar, the action of the .trial court, upon motion of the defendant, in subsequently striking out the testimony of the witness Jackson relative to said statement did not cure the error. The testimony of the witness James Noonan as to certain statements made by one Campbell, the superintendent of the defendant, was subject to the same objection and the action of counsel for plaintiff in subsequently announcing his withdrawal of the testimony of said witness did not cure the error. I. C. R. R. Co. v. Souders, 178 Ill. 585.

The testimony of the physician, Dr. Hoover, called as a witness on behalf of the plaintiff, as to some of the results that might be feared from the injury to plaintiff, such as epilepsy in the form of Jacksonian fits, insanity, inability to do any stooping work on account of the feeling of falling and dizziness in stooping, was improper as being purely conjectural and speculative. In Lauth vs. Chicago U. T. Co., 244 Ill. 244, it was held that'the consequences relied on as a basis of recovery must be reasonably certain to result from the injury; that they cannot be purely speculative or merely probable or conjectural.

The record discloses that in at least two instances counsel for plaintiff successfully sought to inform the jury that the defendant carried accident insurance, and that the defense was being conducted by counsel not retained by the defendant. Like conduct by counsel for the plaintiff in cases of this character has been so frequently condemned by courts having appellate jurisdiction, and held in almost every instance to constitute prejudicial and reversible error, that any excuse therefor, in this case, is wholly unavailing. Fuller v. Darragh, 101 Ill. App. 664; Himrod Coal Co. v. Beckwith, 111 Ill. App. 379; Emery Dry Goods Co. v. DeHart, 130 Ill. App. 244; Parlin & Orendorff Co. v. Scott, 137 Ill. App. 454; McCarthy v. Spring Valley Coal Co., 232 Ill. 473.

It is urged that the second instruction given at the instance of the plaintiff improperly ignored the defense of assumed risk. An examination of the several counts of the declaration- referred to in said instruction discloses that they contain averments which sufficiently negative the assumption by the plaintiff of the risk involved, and the instruction is not subject to the criticism made. The third instruction given at the request of plaintiff states a mere abstract rule of law, and in this case was calculated to mislead the jury.

The objections to the fourth and fifth instructions given at the request of plaintiff are in part answered by what we have heretofore said with reference to the second instruction, and the further objection that said instructions authorized the jury to consider the pain and suffering endured by the plaintiff apart from that resulting from his physical injuries as a aistinct element of damages is not tenable. There was however no occasion for giving both of said instructions as one was substantially a duplicate of the other.

The seventeenth instruction tendered by defendant was clearly applicable solely to the alleged assumption by the plaintiff of the risk arising from the breaking of the elbow by a sudden application of heat and said instruction was not improperly modified by limiting such defense of assumed risk to the sudden application of heat to said elbow.

Upon a re-trial of the case counsel for plaintiff will doubtless not permit their zeal for their client to go beyond the bounds of temperate and legitimate argument to the jury, and we, therefore, refrain from further discussion of the error assigned in that respect.

For the errors above indicated the judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


author: Mb. Presiding Justice Baume

text:
    W. J. Renken et al., Appellees, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    1. Railboads—fires communicated by locomotive. In an action against a railroad company for damages arising from a fire alleged to have been communicated by a locomotive engine, it is significant if the railroad company defendant fails to introduce any evidence upon a question of which it peculiarly has knowledge.
    2. Railboads—fires communicated by locomotive. Held, that in the absence of evidence by the defendant as to the condition of the appliance for preventing the escape of sparks and fire on the day when the fire in question occurred, coupled with the uncontroverted evidence on behalf of the plaintiffs that at the time of the fire the engine in question was emitting a large volume of smoke while hauling a lightly loaded freight train on a down grade, and that the fire was communicated at a point 100 feet from the track upon which said engine was being operated, warranted the jury in finding that the prima facie case made by the plaintiffs was not overcome by the defendant.
    3. Instbuctions—must be predicated upon the evidence. An instruction is properly refused which is not predicated upon any evidence in the record.
    4. Evidence—when failure to strike out will not reverse. In the absence of any showing that the complaining party insisted upon any ruling by the court on a motion to strike out an answer of a witness as irresponsive, a reversal will not be ordered.

      Action commenced before justice of the peace. Appeal from the Circuit Court of Adams county; the Hon. A. Akers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Rehearing denied June 28, 1910.
    Matthew F. Carro tt, and Vande venter & Woods, for appellant; J. A. Connell, of counsel.
    Go vert & Lancaster, for appellees.
   Mb. Presiding Justice Baume

delivered the opinion of the court.

In this action originally instituted before a justice of the peace, the plaintiffs recovered a verdict and judgment against the defendant in the circuit court of. Adams county for $150, as damages to their meadow and pasture alleged to have been occasioned by fire communicated from a locomotive engine operated by the servants of the defendant.

On November 28, 1907, being Thanksgiving Day, a freight train of defendant en route from Quincy to Galesburg passed on the right of way of the defendant through the plaintiffs’ lands shortly after 3 o’clock in the afternoon. The train was lightly loaded and was being hauled by engine No. 2111, one of a large type of freight engines then in use by the defendant. From Paloma, being the next station west of plaintiffs’ land going easterly through plaintiffs’ land, the track of defendant was on a down grade. It is uncontroverted that as the engine passed through plaintiffs’ land smoke in large volume was being emitted from its smoke stack. After the engine had passed the point where the fire occurred, and before the entire length of the train had passed said point, the fire in question was discovered in plaintiffs’ meadow and the uncontradicted evidence excludes every reasonable hypothesis that such fire was communicated from any soTirce other than defendant’s engine. The evidence bearing upon the question of the amount of damages, while conflicting, is of such character as to make the verdict of the jury on that issue in the case conclusive upon this court. The remaining material question of fact involved is whether or not the evidence offered on behalf of the defendant tending to show that its engine was equipped with the best and most approved appliances for preventing the escape of sparks and fire, and was in charge of an experienced and careful engineer, who then carefully handled and operated it, was sufficient to overcome the prima facie case made by the plaintiffs. While it is clearly established by the evidence that said engine was properly equipped with the best and most approved appliance to prevent the escape of sparks and fire on November 20,1907, when said engine was inspected for the purpose of ascertaining whether or not said appliance was in good condition, and it further appears from the evidence that a like examination of said engine was made on December 2, following, when it was found to be in like good condition, the record is wholly barren of any substantial evidence tending to show the condition of the engine in that respect at the time of the fire, or at any time either before or after said fire other than above stated. Whether or not the appliance in said engine to prevent the escape of sparks and fire had been repaired during the time intervening between November 20, 1907, and December 2, following, was a matter wholly within the knowledge of the defendant and its failure to introduce any evidence upon that question is significant. St. L. & W. R. R. Co. v. Needham, 105 Ill. App. 25. The absence of evidence by the defendant as to the condition of the appliance for preventing the escape of sparks and fire on the day when the fire occurred, coupled with the uncontroverted evidence introduced on behalf of the plaintiff, that at the time of the fire the engine in question was emitting a large volume of smoke while hauling a lightly loaded freight train on a down grade, and that the fire was communicated at a point 100 feet from the track upon which said engine was being operated, warranted the jury, in our opinion, in finding that the prima facie case made by the plaintiffs was not overcome by the de-. fendant.

The second and third instructions given at the instance of the plaintiffs omit the requirement that the facts necessary to establish a prima facie case for the plaintiffs must be determined by the jury from the evidence, but in view of the fact that a prima facie case for the plaintiffs was clearly established by the evidence, and the further fact that other instructions given at the instance of both parties explicitly informed the jury that it was incumbent upon plaintiffs to establish such prima facie case by a preponderance of the evidence, the omission indicated could not have harmed the defendant. In other respects said instructions state the law applicable to the case with substantial accuracy. I. C. R. R. Co. v. Bailey, 222 Ill. 480.

The 13th and 23rd instructions tendered by defendant and refused by the court were properly refused, because there was no evidence in the record which justified them, and if given they would have led the jury into fields of pure conjecture and speculation.

The 16th instruction offered by the defendant and refused by the court was an inaccurate statement of the law applicable to the case. The prima facie case made by the plaintiffs could only be rebutted by proof of facts relative to the equipment and operation of the engine, as heretofore indicated, and not by proof of the exercise by the defendant of reasonable care in general to prevent the escape of fire from its engines.

In so far as the 26th instruction tendered by the defendant and refused by the court stated a correct rule of law applicable to the case, it was sufficiently covered by other instructions given to the jury at the instance of the defendant.

In rebuttal, after the close of defendant’s evidence, plaintiffs sought to show by defendant’s record of inspection of spark arresters kept at its roundhouse in Galesburg, which record was in part offered and admitted in evidence at the instance of the defendant and designated as “Exhibit 0,” that the spark arrester on said engine had on December 20, 1906, been officially inspected and noted as in “bad condition;” and also that said record contained the further notation “repaired spark arrester.” By the same record plaintiffs also offered to show a notation therein under date of April 30, 1907, referring to the same engine, as follows: “¡Netting taken out acct. steam pipes leaking.” Plaintiffs then also offered a portion of defendant’s record of inspection of ash pans, etc., with some notations therein under date of October 17, 1907, the purport of which notations does not appear in the record. Counsel for plaintiffs then further inquired of the witness Thomas Moran, the netting and ash pan inspector of defendant’s engines at Galesburg, and who had theretofore testified as a witness for the defendant, whether or not the spark arresting device in said engine had been removed and then replaced sometime previous to November 28, 1907, and after December 20, 1906, and further, whether or not on April 30, 1907, the spark arrester was removed from said engine. To the offers of proof so made by counsel for plaintiffs, and to the questions so propounded by them to the witness Moran, the defendant interposed its objections and such objections were sustained by the court. It is urged by defendant that the mere offer on the part of plaintiffs of the said records for the purposes mentioned, and the said interrogatories propounded to the witness Moran, operated to its prejudice in bringing to the attention of the jury matters which were wholly incompetent and irrelevant. The record discloses that the engine in question was new on December 19, 1906, and that counsel for defendant made much of that fact, and the further fact that said engine was built by well known, competent and expert builders and constructors of engines and the most approved spark arresting appliances, as tending to show that the engine in question was less likely to get out of order and require repairs than engines of earlier construction and longer service. In this state of the record we think the rulings of the trial court in the respects indicated were more favorable to defendant than it was entitled to.

It is further urged that the court improperly failed to pass upon a motion interposed by defendant to strike out an answer of the witness W. J. ¡Renken, called on behalf of the plaintiffs, which answer was improper and not responsive. In the absence of any showing that defendant insisted upon any ruling by the court on said motion, or that the court refused to rule on said motion and an exception by the defendant to such refusal to rule by the court, the question sought to be raised is not properly preserved for review. We have considered the other errors assigned and argued by defendant, but find nothing therein which merits discussion. The record being free from any error which could have operated to the prejudice of defendant the judgment of the circuit court will be affirmed.

Affirmed.


author: Hr. Presiding Justice Baume

text:
    Emma Gilmore, Appellee, v. E. M. Farmer, Appellant.
    1. Bankruptcy—what claim not affected by discharge. A claim of a creditor who has received n.o notice actual or constructive of bankruptcy proceedings in which a discharge has issued to the debtor, is not affected by such discharge.
    2. Evidence—what questions improper. A question which calls for the conclusion of a witness is improper and an objection thereto should be sustained.
    3. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction the substance of which is contained in another given, will not reverse.
    Assumpsit. Appeal from the Circuit Court of McDonough county; the Hon. H. M. Waggoner, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed June 4, 1910.
    Flack & Lawyer, for appellant.
    Theodore B. Switzer, for appellee.
   Hr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit brought by Emma Gilmore against E. H. Farmer to recover the amount alleged to be due upon a joint and several promissory note, bearing date Hay 26, 1906, executed by John Boyd, William T. Boyd and the defendant Farmer, for the sum of $300 payable to the plaintiff one year after date with interest at six per cent. To the declaration in the usual form upon said note the defendant pleaded the general issue, .together with his special plea, wherein he avers his adjudication as a.bankrupt on January 2, 1907, by the United States District Court for the ¡Northern Division of the Southern District of the State of Illinois, and his discharge as such bankrupt by said court on February 7,. 1907, in pursuance to a composition agreement approved and confirmed by said court. Said special plea further avers that the plaintiff had notice of the pendency of said bankruptcy proceeding prior to the termination of one year after the adjudication of the defendant as a bankrupt; that the time for filing claims against said bankrupt expired January 2, 1908, and that no claim was filed against him in said bankruptcy proceeding by the plaintiff. Plaintiff filed her similiter to the plea of the general issue, and replied to defendant’s special plea, that the defendant did not schedule the note sued on as a claim against him in said bankruptcy proceedings, and that the plaintiff had no notice or knowledge of the pendency of said bankruptcy proceedings.

Upon the trial by a jury, it was stipulated between the parties, that the note in question was signed by the defendant ; that on May 27, 1907, there was paid on the note $18 as interest; that on October 7th, and October 19th, following, payments of $50 each were made on said note; that the defendant was adjudged a bankrupt and thereafter a composition agreement between said defendant and his creditors was approved and confirmed by the United States District .Court as averred in defendant’s special plea; that the defendant did not schedule the note in question as one of his liabilities, and that said note was not filed by the plaintiff as a claim against the defendant in said bankruptcy proceedings within one year after the filing of the petition to adjudge the defendant a bankrupt; that no notice of a creditors’ meeting was sent by the referee in bankruptcy to the plaintiff, or to any one for her; that the debt, if any is owing, was a provable claim in said bankruptcy proceedings, and was not one of the debts included in the composition agreement; that if the defendant is liable to pay said note, there is due thereon $254.05. The trial of the case resulted in a verdict and judgment against the defendant for said sum of $254.05, and this appeal is prosecuted by him to reverse said judgment.

Section 17 of the Federal Bankruptcy Act, provides that “A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as * * * (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy * * and section 14c of the same act, provides that, “The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge.”

The main question of fact involved was whether or not the plaintiff had notice or actual knowledge of the pendency of the proceedings to adjudge the partnership of E. M. Farmer & Sons and the defendant personally bankrupts. For the purpose of showing that the plaintiff had such notice or actual knowledge, evidence was introduced on behalf of the defendant tending to prove that the husband of the plaintiff was a subscriber to a daily newspaper published in the city of Macomb, known as the “Macomb Daily Journal,” for a period of more than one year from December 7, 1906; that said paper was delivered at the home of the plaintiff during said time and contained in addition to the referee’s notice of the first meeting of creditors several articles written as news items relating to the pendency of such proceedings, some portions of which articles were read by the plaintiff; and further that one T. H. Downing, who, it was claimed by defendant was acting as general agent of the plaintiff for the collection of said note, was informed by the defendant and his son of the pendency of said bankruptcy proceedings. The plaintiff testified that she had a recollection of having read a portion of some of the articles relating to the pendency of said bankruptcy proceedings but took no interest therein because she did not know that the person designated in said article as E. M. or Edgar M. Farmer, and known by her as Ed Farmer, to whom reference was therein made, was one of the makers of the note in question; that the signature of the defendant to said note being “E m Farmer,” she thought the letters “Em” were an abbreviation of the name Emma, which was her. own name and was sometimes thus abbreviated by her, and that the maker of said note was a woman. The evidence discloses that the loan for which the note in question was given was negotiated by Downing for the plaintiff, and that within a few days after the same was executed it was delivered to the plaintiff and remained in her possession until shortly prior to the commencement of this suit on April 24, 1908. The plaintiff testified that about the time of the maturity of the note on April 26, 1907, she requested Downing to collect the interest, if it was convenient for him to do so, and that the interest amounting to $18 was collected by him from John Boyd, for whose use the money appears to have been borrowed, and that the same was paid by him to her husband who gave it to her; that subsequent thereto when she needed some money she again requested Downing to collect something upon the note and that the two payments of $50 each, on October 7, 1907, and October 19, 1907, were collected by Downing from said Boyd, and paid to her by her husband. The testimony of Downing, called as a witness on behalf of the plaintiff, is in substantial accord with the testimony of the plaintff, except that he testified that the two payments on the notes of $50 by John Boyd were made to him without any request by the plaintiff.to him to collect the same; and he further testifies that he had no notice of the pendency of the bankruptcy proceedings. Whether or not the plaintiff had notice or actual knowledge of the pendency of the proceedings in bankruptcy against the defendant, and whether or not the relations which existed between the plaintiff and Downing with reference to the collection of the note involved, constituted Downing such a general agent of the plaintiff in that respect as to make the plaintiff chargeable with notice to or actual knowledge by Downing of the pendency of said proceedings, and whether or not Downing had such notice or actual knowledge, were questions of fact proper to be submitted to the jury, and a careful examination of the record warrants, in our opinion, the finding of the jury upon such issues.

It is urged on behalf of defendant that the court improperly overruled an objection to a question asked the plaintiff upon her cross-examination by her counsel, she having been examined in chief by counsel for defendant, as to whether Downing was her agent in any matters with reference to the note between the dates on which she asked him to collect the several amounts paid by Boyd. The objection to the question should have been sustained as calling for the conclusion of the witness, but the record discloses that the answer of the witness to said question was not responsive, and in the absence of a motion by defendant to strike the answer from the record the question sought to be raised is not properly preserved for review.

Instruction “B” given at the instance of the plaintiff informed the jury that unless they found from the evidence that the plaintiff had actual knowledge or notice of the bankruptcy proceedings so she could have filed her claim against the defendant for the payment of the note in question, within the time for filing the claims in said proceeding, then they should find the issues for the plaintiff. It is urged that this instruction is erroneous because it ignores the defenses of agency and notice to the agent. At the instance of the defendant the court instructed the jury that notice to an agent is notice to the principal, and said instruction further concretely applied the rule of law announced to the facts as claimed to exist by the defendant, if the jury believed from the evidence that such were the facts. The instructions are not necessarily contradictory, but conceding that the instruction given at the instance of the plaintiff should have embodied the element of agency the omission in that regard was not prejudicial to the defendant because the evidence is insufficient to. support a finding that Downing was such an agent of the plaintiff as that notice to him of the pendency of the bankruptcy proceeding would have been notice to the plaintiff.

In so far as the second and third instructions .tendered by defendant, and refused by the court, were-correctístatements of the law' applicable to the case, they were fully covered by other instructions given at the instance of the defendant.

There is no error in the record prejudicial to defendant and the judgment of the circuit court will be affirmed.

Affirmed.