author: Mr. Justice Whitney

text:
    David M. Robishaw, Appellant, v. The Schiller Piano Company, Appellee.
    Gen. No. 5,642.
    1. Master and servant—duty to guard machinery. Under the statute, an employer is required to properly protect or guard a circular saw.
    2. Master and servant—duty to guard machinery. In an action for personal injuries alleged to have resulted from the negligence of defendant in not properly guarding a saw in its piano factory, a verdict for the defendant is sustained where there is a preponderance of evidence that the saw was as properly guarded as could be and be operated.
    3. Master and servant—testimony of foreman as to what might be done by employe. In an action for personal injuries received by plaintiff while operating a saw in defendant’s piano factory, it is noi error to admit testimony of the foreman that plaintiff’s time went on the same whether he was removing scraps or operating the saw.
    4. Evidence—when opinion based on experience is competent. In a personal injury action where plaintiff was injured while operating a saw in defendant’s piano factory, a witness who has sufficient experience may give his opinion regardless of the time or place where he worked.
    5. Evidence—when demonstrative evidence refused at close of rebuttal testimony. In a personal injury action where plaintiff’s counsel at the close of his rebuttal testimony asks that plaintiff may show his hand to the jury for inspection, the character and extent of the injury having been fully covered in the original testimony, an objection to the offer is properly sustained.
    6. Evidence—suggestive questions on rebuttal. On rebuttal there is no more right to ask suggestive questions of one’s own witness than on examination in the first instance.
    7. Instructions—when party cannot complain of error. A party cannot complain of error in instructions when the same error is found in the instructions of the complaining party.
    8. Master and servant—effect of failure to comply with statute regarding protection of machinery. An instruction in a personal injury action that if the jury believe from a preponderance of the evidence that defendant failed to protect its saw as required by statute, then the defendant cannot interpose the common law defense of assumption of risk, is properly refused.
    9. New trial—surprise by certain testimony. A motion for new trial on the ground that plaintiff was surprised by certain testimony is properly denied where a continuance on such ground was not asked during the trial.
    10. New tbial—cumulative evidence. Cumulative evidence as to the extent of plaintiff’s injuries cannot be considered on a motion for new trial in a personal injury action where the jury found defendant guilty of no negligence.
    11. New tbial—on the ground that plaintiff appeared in court intoxicated. Plaintiff’s motion for new trial on the ground that he appeared in court under the influence of liquor is properly refused.
    Action in case for personal injuries. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heabd, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed November 13, 1912.
    Bert S. Duzan, for appellant.
    J. C. Seyster, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellant was employed as a wood worker in the mill of appellee, and while operating a sawing machine therein was injured. He brought this suit to recover for injuries received, and his declaration charged that while in the exercise of due care and caution for his own safety, and while in the line of his duty, he had his hand injured while removing accumulated waste behind the saw he was operating by reason of the negligence of appellee in not guarding said saw; that it was the duty of appellee to properly guard the saw, one count of the declaration charging a general duty, and two counts charging appellee’s duty under the statute.

The sole act of negligence alleged in each count was that of not guarding the saw.

The duty of an employer under the statute is to properly protect, or guard machinery, in this case the saw. Hurd’s B. St. 1909, p. 1152.

The complaint made is that the saw was not properly protected or guarded. In the different counts the phraseology varies, but that is the gist of the charges in each count; so, at the very out-set of the trial the attention of the jury must have been prominently'directed toward the question, was the saw properly guarded or protected. Whether under the general charge of lack of protection, which might- create a liability at common law, or under the statutory requirement, that the saw be protected, it became important to determine whether the saw was properly protected, because at common law there would be a liability if the saw was not properly protected, if appellant was in the exercise of ordinary care for his own safety, and under the Statute, the word “properly” is made the test of liability, and we can, for the time being, leave out of consideration for further discussion, the question of assumed risk and contributory negligence, and examine the allegations of the declaration, and the evidence in the case, of neglect to comply with the statute to determine whether or not the saw was properly guarded. If the jury believed from the evidence that the saw was properly guarded, then, whether appellant was in the exercise of ordinary care, or whether he assumed the risk incident to his employment, is wholly immaterial, because in that event appellee would not be guilty of the negligence charged in any count of the declaration. In other words, it was necessary for appellant to prove exactly the same thing either at common law, or under the statute, viz: that the saw was not properly guarded, so far as negligence of appellee is concerned.

The evidence is undisputed that at the time appellant received his injuries, he was beveling bottom boards for pianos, beveling them on two sides and two ends. Appellant testified that the saw was not guarded as it could have been, and he tells how it could have been guarded. The witness Swank testified he was a factory inspector and that such a saw could be guarded, but on cross-examination he said, “I don’t know of any guard that could be used in beveling bottom boards very handy, at least I don’t know of any.” “The kind of saw that I saw used with guards on was used where the hoards laid flat on the table, and run through the saw lying flat on the table. They have guards that can be put on the saw for those.” Appellant offered no further evidence on the subject of guarding the saw.

The witness Clean for appellee testified he was a machinist for several years; was foreman of the Haddorf Piano Company for nine years; was in business for himself at the time he testified that he was familiar with machinery, and knew the kind that is used for beveling bottom boards; knew the saw of appellee; knew the process of beveling bottom boards; did not know of any guard or protection that would not be in the way when doing that work; had made observation of different factories he had worked in, and had seen others; that he did not know of any mechanism that could be used as a protector at the top of the saw in beveling bottom boards; that it was impossible to put a guard on the top of the saw when they were beveling.

The witness Norden for appellee testified that he was the foreman of the finishing' room for appellee for seven years, and had worked in the finishing room for thirty-five years; that appellant was beveling bottom boards when he was injured; that bottom boards are beveled on two ends and two edges; that bottom boards are eleven and one-half or twelve inches wide, and four feet ten inches long, and when they are beveling are held to the saw at an angle of sixty degrees to make the bevel; that he does not know of any way to put a guard on the saw to protect it when beveling bottom boards; that in his. judgment it cannot be done; and that it would be no protection in case of beveling bottom boards to put a spreader on; and that if a guard were put on the saw it could not be used because it would be in the way.

The witness Swank, the factory inspector, for appellee, testified that he had seen the bottom board which he referred to; that in his opinion there could not be a guard placed upon that kind of a saw for beveling that kind of a board, unless it was a .tilted table, but even then it could not be used to bevel the ends of the boards; that a spreader could not be used very handy in beveling bottom boards; that it would not be any safety or protection on account of the pieces taken off. On cross-examination the witness Swank said he had seen a trim saw upon a tilted table, and with this they can bevel bottom boards at the end and that the ends could be beveled on a shaper. The witness Eeed testified for appellee that he had been working for two years at saws for appellee, and had worked on a trim saw a good deal the last six or eight months, and beveled bottom boards on it; that he did not believe a spreader could be used on the saw for beveling bottom boards. The witness Peterson for appellee testified that for eleven years he had been working for appellee, and for six years beveled bottom boards; that l\e does not think a guard could be used on the saw for that work. The witness Boos testified for appellee that he had worked for appellee nine years, and was running a trim saw; that he used it mostly for ripping and cutting; that bottom boards were beveled on it; and that he had worked long enough at it to have an opinion whether it is practical to have a guard on the saw; and in his judgment a guard could not be used on the saw while beveling bottom boards; that he used a spreader about two days on a circular saw, and that in his judgment a spreader would be no protection. The witness Ewing testified for appellee that he was a machine hand, and had run a trim saw, and that he did that work for the Schaffer Piano Company for six years; that he had tried to bevel bottom boards, and use a guard; that he has had experience enough running trim saws to know whether or not they could be guarded, and that in his judgment they could not be guarded. The witness Jones testified for appellee that he had been connected with appellee for sixteen years; that from his experience he did not think a spreader would be any protection in beveling bottom boards; that in his judgment a guard could not be placed over a saw that would be any protection in beveling bottom boards.

Thus it is seen that appellant and the witness Swank testified that the saw could have been guarded, but the witness Swank also testified for appellee in substance that it was not practical to guard the saw; while eight witnesses, (including the factory inspector Swank) testified in substance that it was not a practical thing to guard the saw while beveling bottom boards. In effect appellant says it is practical, and that the saw was not properly guarded, while eight witnesses say in effect that it was not practical to guard the saw.

In the judgment of this court there is a great preponderance of the evidence that the saw was as properly guarded as could be and be operated at all, while the preponderance must be on the other side before appellant could recover.

The jury were fully justified in finding as they did on the evidence they had before them.

Appellant urges that an error occurred in admitting certain portions of the witness Norden’s testimony, in' that he was allowed to testify that appellant’s time would have gone on just the same whether he was removing waste, or whether he was sawing, and that the jury were misled because they might take it to be just as much the duty of appellant to remove waste as to work at the saw, when the duty of removing waste was that of another employee. It should be borne in mind that tiae evidence is not clear on that point; that it is conflicting; Nor den testified that if the scraps were too high the man operating the saw is supposed to take them away himself, to put them back to let himself run. The question was proper enough to draw out the information whether appellant would have lost any time in removing the scraps, at least it could work no harm to appellant.

So far as the testimony of the witness Boos in giving an opinion is concerned, it is not open to the criticism appellant’s counsel puts on it. It was not a matter of whether he had worked anywhere else, or how recently he had worked. He testified he had worked for appellee nine years, and was operating a trim saw when he worked there, and used the trim saw mostly for beveling bottom boards. It was a question whether he had the experience on which he based his opinion, and not when and where he got the experience. The objection was made not because it was not shown he had had the necessary experience and knowledge on which "to base an opinion, but it was directed to the places where and time when he got it. If he had the experience, no matter where or when he got it, it was competent for him to give an opinion.

Appellants counsel at the close of his rebuttal testimony asked that appellant might show his hand to the jury so that the jury might inspect it. We fail to see how the offer to show the hand was rebuttal evidence. If competent at all, it was a part of appellant’s original case; but, in any event it was after appellant had been on the stand and fully testified. He had told the jury in giving his evidence, “And cut this finger across there—cut that one through there,” evidently exhibiting his hand while giving his testimony, so that he had the benefit of showing his injuries to the jury,' and the doctors had all testified to their character and extent. There was no error in sustaining the objection to this offer. The objection was sustained to the question, “And if you said anything to them about your glasses, was it in reference to dirt being upon them or something of that kind?” This was in rebuttal and we know of no rule that allows the asking of suggestive questions of one’s own witness on rebuttal, different from the examination in the first instance. There was no error in sustaining the objection to that question.

As to the instructions given for appellee error is claimed to have heen committed in the giving of the fourth, seventh, eighth and ninth instructions given for appellee on the ground that they each require the jury to pass on assumed risk or contributory negligence. If we concede that these instructions áre erroneous under the recent holding of the Supreme Court in the case of Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, appellant not only in each count of his declaration alleged he was in the exercise of due care for his own safety, but also put that proposition and the necessity of proving it in the second, fifth and sixth instructions given at his request, and this court can well say as was said by the Supreme Court in McInturff v. Insurance Co. of N. A., 248 Ill. 92. “A party cannot complain of an error in instructions when the same error is found in the instructions offered by the complaining party.” The trial court was not required to rule on the question of contributory negligence or of assumed risk until he was requested to instruct the jury, and the court adopted the theory presented by the instructions requested by both.plaintiff and defendant. Appellant cannot now be heard to complain.

As to the refusal of appellant’s instructions, that assignment of error is by the argument limited to appellant’s refused instruction No. 1. That instruction is as follows: “The court instructs the jury that if you believe from a preponderance of the evidence that the defendant failed to guard, shield or protect its said saw as required by the Statute, then the defendant is deprived of the right of interposing the common law defense of assumption of risk.” What we have above said of the manner in which appellant alleged his case in his declaration and tried it, and presented it in the instructions he requested, applies with equal force to this refused instruction; and again it might have had a tendency to mislead the jury as to what the Statute required. No other instruction was given stating the terms of the statute, that is, calling-attention to the fact that the statute of this state specifically requires certain things; but the jury were told by other instructions as to certain things specifically enumerated in them what “the Law” required; and that substantially covered all of the requirements of the statute. No error is seen in the refusal of this instruction.

As to the affidavits of appellant and his attorney presented on the hearing of the motion for a new trial, that they were surprised by the testimony offered by appellee, and that two witnesses can now be procured who will testify that saws can be protected with a guard, it only need be said that the record is silent save by said affidavits as to any surprise. Appellant should have asked for a continuance on the ground of surprise if he was surprised, but he did not. Moreover, it is merely cumulative evidence that the affidavits mention. This is not a close ease on the question of whether or not the saw could have been guarded. Practically, appellant testified it could have been, and eight witnesses, one of them the factory inspector, testified that it could not. This court would not be justified in reversing the case because appellant produces affidavits that he can now get two witnesses to corroborate him.

Inasmuch as the jury found appellee guilty of no negligence and therefore not liable in any amount of damages, it is not seen how cumulative evidence as to the extent of appellant’s injuries was proper to be considered on the hearing of the motion for a new trial.

Appellant also asks a reversal because the court on the hearing of the motion for a new trial should have considered the affidavit to the effect that appellant went into a saloon and afterwards came into the court room under the influence of liquor. If such are the facts, and the jury saw him, and appellant was prejndiced thereby, it was Ms own fault, and a new trial should not have been granted on that account.

Seeing no reversible error in the record, the judgment of the court below is affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Medora Hunter et al., Appellees, v. The Sanitary District of Chicago, Appellant.
    Gen. No. 5,592.
    1. Pleading—variance between counts. In an action for injuries caused to land by waters it is not a variance that in some counts plaintiffs allege they are absolute owners while in others they allege ownership subject to the homestead and dower rights of their mother.
    2. Doweb—right of possession. Unassigned dower does not give the right of possession.
    3. Evidence—when bas-relief model of tract is inadmissible. In an action for damage caused to land by waters it is not error to refuse to admit in evidence a wooden model of the surface in basrelief which magnifies the vertical scale fifty times from the horizontal scale.
    4. Instbuctions—evidence. In an action for damage caused to land by waters of a sanitary district where a deposition made by a former owner in filing a claim against the state for damages from the erection of a dam, stated the lands had been destroyed, it is improper though not reversible error to instruct the jury that there is no evidence that the former owner received any compensation or damages because of the dam.
    5. Instbuctions—when party cannot complain of instructions. A party who has offered a certain class of instructions cannot complain of instructions of the same kind given at the request of the opposite party.'
    6. Damages—possession necessary to recover for damage to land. In an action for damage caused to land by waters of a sanitary district an instruction that open, peaceable, notorious and exclusive possession constitutes sufficient proof of title in plaintiffs for the purposes of the suit is properly given.
    7. Special intebbogatobies—when properly refused. Evidentiary interrogatories are properly refused.

      8. Evidence—declarations of former owner as to value of land. In an action for damage to land, declarations of the former owner during his ownership are competent evidence against the heirs succeeding him in title.
    9. Damages—when excessive. In an action for damage to 160 acres of land by waters of a sanitary district, a remittitur of $3,000 will be required on a judgment of $9,000 where the evidence shows the land was unfit for cultivation before the waters of the sanitary district affected it and the improper remarks of counsel. for plaintiff were such as would tend to aid in producing an excessive verdict.
    Appeal from the Circuit Court of Woodford county; the Hon. T. M. Habbis, Judge, presiding. Heard in this court at the October term, 1911,
    Affirmed upon remittitur.
    Opinion filed November 13, 1912.
    Frank J. Quinn, John Dailey and Walter E. Beebe, for appellant; John C. Williams and B. M. Chipereield, of counsel.
    Barnes & Magoon, for appellees; Thomas Kennedy, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

This suit was brought in January, 1905, by Medora, Emily M. and Clara Hunter against the Sanitary District of Chicago to recover damages for the injury caused to their lands by the waters of said Sanitary District. The lands involved in the declaration were : the west half of the northeast quarter of section 15; the east half of the northwest quarter of section 15, in township 28 north, and of range 3 west of the third P. M. in Woodford county, and other lands next south of those just described. Upon the trial and in answer to. a special interrogatory, the jury found defendant not guilty as to said other lands. No cross errors are assigned by plaintiffs and therefore the questions litigated concerning said other lands are not before us. On a jury trial defendant was found guilty as tq the 160 acres in the north half of section 15 and plaintiffs were awarded damages in the sum of $9,000 and, a motion for a new trial having been denied, judgment was rendered on the verdict, and defendant below appeals.

The declaration consisted of twelve counts, in the first three of which it was alleged that the appellees were the owners, and possessed of, these lands, subject to the dower and homestead rights of their mother therein, while the remaining counts alleged that said appellees have been and are the owners and lawfully possessed of said lands. It is contended by appellant that there is a variance in these allegations which is fatal to appellees’ action; that, having first alleged their ownership subject to the homestead and dower rights of their mother, they cannot in other counts be permitted to set up that they are the absolute owners; and that, having set up their mother’s rights, they are bound to prove the amount of depreciation of the interest of appellees by deducting from the total depreciation the amount by which their mother’s rights have been depreciated. We are unable to agree with the contention of appellant in this respect. A plaintiff may state his cause of action in one way in one count of his declaration and in another way in another, and he may claim more in one count than in another. Besides, there is no proof that dower had ever been set off to the mother of appellees, and unassigned dower does not give the right of possession. Heisen v. Heisen, 145 Ill. 658. The proof shows that the mother of appellees was not in possession of the land here in controversy and she therefore could not have maintained an action for an injury to the land. Her dower was a mere right of action until assigned and was not an estate in these lands. The proof shows that neither the appellees nor their mother were living upon the land in question. East of that part of the land' as to which defendant was found not guilty is a farm of 120 acres, owned by appellees but separated by a highway from the land as to which a verdict of not guilty was returned; and it is upon this 120 acre farm remote from the land as to which defendant was found guilty, that the home buildings are located, and there they have apparently been for a long time. It is obvious from the testimony of the value of the land in that vicinity that this home farm is worth more than $1,000 and, if a homestead had been assigned to the widow, it must have been assigned in that land where the home buildings were situated. The proofs shows that the appellees were the sole heirs of their father, the owner of this land, who died intestate, and that ever since his death in 1898 they have been in the sole and exclusive possession of the lands now in question, so that, if the mother has any possible homestead right in this 160 acres, a separate and distinct tract of land from that on which the home buildings are located and on which the mother lives, still she has never attempted to enforce the right. Practically she has no such homestead right in these lands while occupying a homestead elsewhere.

The court below refused to admit in evidence a wooden representation of the .surface of this tract of 160 acres in bas-relief, and appellant complains of that ruling. The evidence shows that the vertical scale of this model had been magnified fifty times from the horizontal scale and that the model therefore would show the slopes or elevations of the land fifty times greater than they really are. This is not the actual condition of the land and would tend to mislead the jury and to make the land appear to them as a steep side hill with deep ravines, unless they fully understood the difference between the horizontal and the perpendicular scales used. While it might not have been error to permit this to be introduced in evidence with a full explanation, still we are of opinion that it was not calculated to aid the jury and that it was not error, to refuse to admit it. Complaint is made by appellant of the refusal of the court to admit in evidence various other exhibits but we. fail to see that the presence of any of them would have assisted the jury in any way. See our discussion of this general subject in Zinser v. Sanitary District, 175 Ill. App. 9.

Appellees claimed title to the land here in question, which was about three miles from the Illinois river, as sole heirs of William Hunter, who died intestate in 1898. The proof showed that William Hunter had owned this land for many years and that in 1877, when the Copperas Creek Dam was erected, he filed a claim against the State of Illinois for the injury done to his land by the construction of the dam. His deposition, taken at that time, was introduced in evidence in this cause by appellant, and therein he stated that, by reason of such damage, “much of the lands had become water-soaked and soft to such an extent that they no longer bore animals with safety, and had become unproductive, liable to frequent destructive overflows, and will so remain forever.” In July, 1889, he gave another deposition in the same cause, in which he said: “I was mistaken at the time of filing my claim; the damage is greater than when I gave my testimony at the former hearing. Since then we have found that it has been growing worse and worse up to the present time; that there is no cessation; that the lands remain sour and are getting worse and worse every year.” These statements referred to the lands involved in this proceeding. In this connection the court instructed the jury as follows, at the request of appellees:

“You are instructed that there is no evidence or testimony in this case that William Hunter has received any compensation or damages for any injury or damag*e claimed to have been done to any of the lands in question in this suit because of the construction and maintenance of the Copperas Creek lock and dam.”

We think this instruction should not have been given. The object of introducing the testimony of William Hunter in connection with his claim against the State of Illinois was not to show that he had been paid for the destruction of his lands by water, but was to prove that he claimed and declared and testified, long before the waters of appellant were turned into the Illinois Eiver, that his land had been destroyed by water. It was immaterial to the effect of that evidence in this ease whether William Hnnter had been paid or not. The point was to show that the ancestor of appellees claimed, under oath, while he owned these lands that they had been practically destroyed long before the Sanitary District waters were sent down to that locality and, therefore, that the injury of which appellees are now complaining was not due to any action on the part of appellant. Still we do not regard the giving of it as reversible error for it is true that no evidence had been introduced to show that William Hunter had ever been paid by the state for such damage, and the instruction was therefore literally true.

Several -of the instructions requested and given for appellees related to and authorized a recovery for the injury done by appellant to the fair cash market value of the interest of appellees in the land, while other given instructions made appellant liable for the depreciation in the fair cash market value of the lands, and appellant complains not only of this supposed inconsistency but also because the given instructions, as a whole, did not offer the jury any method for determining the interest of appellees in the land. Appellant cannot be heard to question the instructions given for appellees for these supposed defects, because it offered instructions of the same kind; for where an appellant has induced the giving of a certain class of instructions, it cannot complain of the same given at the request of the opposite party. Cicero & P. St. Ry. Co. v. Meixner, 160 Ill. 320; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77; McInturff v. Insurance Co. of N. A., 248 Ill. 92. Moreover the only person who could have any interest in these lands, aside from appellee, was their mother, the widow of William, Hunter. As already suggested, her dower has not been set off to her, and in the absence of any such action her dower rights in this land cannot be considered here. It is obvious for the reasons already stated that her homestead right in .this tract of 160 acres does not exist or is merely nominal. Again, the 15th special interrogatory, requested by appellant and given to the jury asked what had been the depreciation in the fair cash market value of the interest of appellees in this tract of 160 acres by reason of the acts of appellant as charged in the declaration, and the jury gave as their answer the sum of $9,000 and returned their general verdict for appellees in that sum. This verdict, therefore, was for the depreciation of appellees’, interest, only, in the land. The remittitur which we hereinafter require will fully cure any slight defect in the proofs in omitting to establish the amount of the depreciation to the widow’s technical homestead estate in this 160 acres, if any she had, and any similar defect in the instructions as a whole.

Appellant complains because one of the instructions given for. appellees contained a reference to the pleadings. If this was improper, appellant cannot be heard to complain of such action for many of its given instructions contained a like reference. Appellant complains of the giving of instruction No. 13 for appellees, which was as follows:

1‘ While the plaintiffs must prove by a preponderance of the evidence in this case that they had the legal title to the land in question, yet you are charged that if the plaintiffs have proved by the greater weight of all the evidence in this case that they were in open, peaceable, notorious and exclusive possession either by themselves or tenants of the real estate described in the declaration in this case on and prior to the 17th day of January, 1900, and up to the commencement of this suit, then there is sufficient proof of their title for the purposes of this suit, in the absence of evidence tending to show that they do not have the legal title to said land.”

This instruction was not intended to tell the jury for what a recovery could be had, but .only to meet any question that might arise in the minds of the jury as to whether or not appellees had to prove their title from the Government of the United States, and to inform the jury that open, peaceable, notorious and exclusive possession constituted sufficient proof of title in appellees for the purposes of this suit, and was therefore properly given. See additional opinion on petition for rehearing in Zinzer v. Sanitary District, supra. Appellant requested that fifteen special interrogatories be given to the jury. The court gave the 14th and the 15th and refused the others. The 14th special' interrogatory was in relation to the other lands as to which the jury found appellant not guilty. The 15th special interrogatory was as mentioned above. We are of opinion that the other requested interrogatories were mainly evidentiary and were properly refused. Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132; Lake Erie & W. R. Co. v. Morain, 140 Ill. 117; Pike v. City of Chicago, 155 Ill. 656; Chicago & A. R. Co. v. Pearson, 184 Ill. 386; Chicago & A. R. Co. v. Harrington, 192 Ill. 9.

Upon a careful consideration of the evidence we are of opinion that the damages awarded are excessive. William Hunter, the ancestor of appellees, testified under oath; as already stated, that these lands were practically destroyed by the construction and operation of the Copperas Creek Dam, many years before the Sanitary District waters were turned into the Illinois river, and this declaration of the former owner is competent evidence against the heirs succeeding him in the title. It is true that, in spite of his belief at that time that his land had been destroyed, he had a right to reclaim the land afterwards by tiling or otherwise if he could. It is shown that he did put in some tile, but this tile has been allowed to become filled up and has not been kept sufficiently open to be adequate for carrying off the water. The evidence shows that prior to 1900, the year when the waters of appellant were turned into the Illinois river, this land, or at least a considerable portion of it, was wet and soft and unfit for cultivation. Various witnesses testified that a considerable portion of this 160 acre tract was not farmed at all for many years prior to 1900. It is clear to us, from a study of the evidence, that much of the damage to this land is due to causes that existed before appellant turned its waters into this locality, one source of such damages being a small stream or creek, which comes down from the hills to the east of the land in question and flows directly across it, the waters from which, in flood times, spread across the land. It is fair to assume that this verdict, which we regard as excessive, has been partly procured by improper conduct on the part of appellee’s attorney in the cross-examination of many of appellant’s witnesses and in his argument to the jury. His questions to appellant’s witnesses contain insinuations which were improper and were calculated to impress the jury. He was entitled to inquire of appellant’s witnesses whether they had been taken over the land by agents of appellant, whether they had been paid anything for 'the time so spent, and whether any efforts had been made by representatives of appellant to cause them to testify favorably to it and contrary to their own judgment, and, in general, to ascertain if the witnesses had been subjected to any improper influences, but in many instances appellees’ attorney went much further in that direction than was proper or can be countenanced by this court. In his argument, appellees’ attorney made a strong plea to the jury on the ground that appellees were women, and he reminded the jury that the last persons on the battle field are women, that the nurses who bind up the wounds and moisten the lips of dying soldiers are women, that the first star sewed on the flag of our G-overnment was put there by a woman, and that “the old song that you love and I love and the Hunter girls love was written by a woman. ” He told the jury that these women loved their home and their mother and the memory of their father and that all the slime that could come from the tongue of the maligner of his memory could not induce appellees to put a stain on their father’s memory for all the money that it cost to build the Sanitary District canal. It is true that, the court sustained an objection to these remarks, but this did not remove their effect upon the jury. The same offense was practically repeated, and the jury were told by "him, “You have no right to run away from your duty because the sex of these plaintiffs is the same as that of your mother and mine.” One of the attorneys for appellant had previously attacked the plaintiffs in his argument, and perhaps aggravated plaintiff’s attorney and to some extent excused him. But these appeals to the jury because of the sex of the plaintiffs were highly improper and were calculated to inflame the jury and we conclude that they aided in producing this excessive verdict. In the trial of this case there were many improper remarks by counsel, and, also in their briefs here, and were it not for the expense likely to be entailed upon the parties, we should have been disposed to strike out portions of each of the briefs and require them to-be reprinted in more courteous language. The trial judge interfered urgently to stop this course of conduct in the court below and succeeded in part, but the conduct of counsel was so persistent that the mere rulings of the court probably did not remove the impression from the minds of the jury. In view of the testimony of William Hunter and of the shape and contour and condition of the land as revealed by the evidence, we are of opinion that this verdict ought not to be allowed to stand for more than $6,000. This opinion will be lodged with the clerk and counsel notified, and if within seven days appellees remit $3,000 of the judgment, the judgment will be affirmed for $6,000 at the costs of appellees; otherwise, it will be reversed and remanded for a new trial.

Affirmed upon remittitur.

Appellee having entered a remittitur herein in the sum of $3,000, the judgment is therefore affirmed in the sum of $6,000 at the costs of appellees.


author: Mr. Presiding Justice Dibell

text:
    John J. McClusky et al., Defendants in Error, v. James B. Nelson, Plaintiff in Error.
    Gen. No. 5,547.
    1. Foecible detainee—defendants must withhold possession when suit is commenced. In forcible detainer, it is incumbent on plaintiff to prove that defendants were in possession and withholding the same at the time of commencement of the action.
    2. Foecible detainee—joint judgment against landlord and new tenant. Judgment for restitution in an action for forcible detainer cannot be rendered against both the tenant in possession and the landlord where there is no proof that the latter was in possession at the time of instituting the.suit.
    3. Foecible detainee—joint judgment indivisible. A judgment against two defendants in forcible detainer is indivisible and, if erroneous as to one, must be reversed as to both.
    4. Foecible detainee—where tenant has no notice of claims of prior tenant. Where proof in forcible detainer tends to show that plaintiffs had abandoned their tenancy under a lease and they fail to show knowledge or notice of their rights and claims in the premises on the part of defendant when he entered into possession under another lease, the liability of the latter is not established.
    5. Landlobd and tenant—when evidence of possession is incompetent. Statements by painters at work in a building that they had been told to do such painting by the landlord are not competent as tending to prove the landlord to be in possession.
    Error to the Circuit Court of Bureau county; the Hon. Richabd M. Skinneb, Judge, • presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    J. L. Murphy, for plaintiff in error.
    Thomas N. Haskins and J. L. Spalding, for defendants in error..
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

F1. J. Seidl and John J. McClusky brought this action in forcible detainer before a justice of the peace on June 16,1909, against James B. Nelson and Arthur F. Seelig to recover possession of a tract of 16 or 18 acres known as Webster Park and Webster Park Base Ball Grounds in Hall town in Bureau county. Upon a jury trial in the Circuit Court upon appeal defendants were found guilty and the right of possession was found in plaintiffs, motions by defendants for a new trial and in arrest of judgment were denied, and there was a judgment that the plaintiffs have restitution of the premises from the defendants and that they recover their costs of the defendants and have execution therefor. Nelson prosecutes this writ of error to review said judgment.

On February 14, 1907, Nelson as the first party and William Hawthorne, McClusky and Seidl as the parties of the second part executed an instrument, whereby the first party leased to the second parties said tract of land, and in the first part of the instrument it was described as a lease for four years, commencing February 1,1907. The second parties agreed to pay the first party $1,500 on certain dates in 1907; the second parties had the option to buy the premises on or before July 15, 1907, and if they did, the rent previously paid was to be applied on the purchase money; if they did not buy they had the privilege of renewing the lease from year to year for four years at an annual rental of $1,500, but the first party could sell the land at any time after July 15, 1907, and the second parties were to deliver possession at the end of any season on demand by said first party.-’ The park season began in May or June and ended in September or October and the premises were not intended to be actually occupied the rest of each year. At the end of the first year Hawthorne abandoned the enterprise and it was orally agreed that McClusky and Seidl should have the premises another year on the terms named in the written lease. At the end of the second year, and after much, effort by Nelson to collect the rent, the tenants were in arrears. Nelson sued them and levied upon personal property which they had on the premises. There is evidence that they made Nelson a proposition to occupy the premises for the third year at a much lower rental and that Nelson refused, and that McCIusky and Seidl then told Nelson they would not keep the premises any longer. This was denied by the defendants. Nelson then took possession of the premises and gave Seelig a written lease thereof for three years and put him in possession. Thereafter McCIusky and Seidl came to take away certain personal property which they had left on the premises and found it in charge of a custodian under a levy in the suit by Nelson to recover the rent in arrear for the second year. That rent was after-wards collected in some way not here disclosed. Mc-CIusky and Seidl then brought this suit in forcible detainer against Nelson and Seelig.

The complaint did not charge an unlawful entry, but only that Nelson and Seelig unlawfully withheld possession of the premises from the plaintiffs. Nelson leased to Seelig on April 27, 1909, and the term was to begin on May 1, 1909, and Nelson put Seelig in actual possession soon thereafter and at least as early as'the middle of May, and this suit was begun on June 16, 1909, and it was incumbent upon plaintiffs to prove that defendants were in possession on June 16. No demand for possession was made on Nelson. Nelson lived in Chicago, and there is no proof that he was ever in possession after he put Seelig in possession. One of the defendants testified that he went to the premises some time in May, 1909, and found Seelig in possession and some painters at work and asked them who told them to paint and they replied that Nelson did; that they were whitewashing and he asked Seelig who gave them leave and Seelig replied that Nelson did. The statements of the painters and of Seelig were not competent proof against Nelson and had no tendency to prove that Nelson was then in possession. Our attention is not called to any evidence to show that Nelson was in possession or withholding possession when this suit was brought, and therefore the judgment that he restore the possession and pay the costs cannot be sustained. Godard v. Lieberman, 18 Ill. App. 366; Hinchliffe v. Espen, 30 Ill. App. 371. The judgment is indivisible and must therefore be reversed as to both defendants. Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77.

In view of another trial we think it proper to say that instructions Nos. 10 and 15 given at the request of plaintiffs, are erroneous in apparently authorizing a recovery against both defendants when the case they state would not make Nelson liable. It is a serious question from the proofs whether plaintiffs had not abandoned the lease and refused to he further bound by it before Nelson leased the premises to Seelig. Our attention is not called to any proof that Seelig had any notice or knowledge that plaintiffs had or claimed any right in the premises when he took his lease and entered into possession, and it is not therefore clear that he is liable in this action, even if the lease to McClusky and Seidl had not been rescinded or abandoned. Fitzgerald v. Quinn, 165 Ill. 354.

The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and rema/nded.


text:
    F. H. Dannewitz, Appellant, v. George S. Miller, Appellee.
    Gen. No. 5,668.
    1. Brokers—commission. Plaintiff was authorized to sell a farm in three days, and three days after such period defendant traded the farm for another farm and cash on substantially the same terms as had been conditionally agreed upon by the parties, previously to plaintiff’s becoming interested and suggesting such trade. Held, that the jury finding from the preponderance of the evidence that’ the trade was made without plaintiffs assistance, he is not entitled to recover commission.

      2. Evidence—of ivife competent as husband's agent. Where defendant’s wife has acted as his agent in his important business transactions for several years, owing to his feeble health and defective mental capacity, and he expressly directed plaintiff to make the contract in suit with her, she is a competent witness as his agent.
    Appeal from the County Court of La Salle county; the Hon. William H. Htnebattgec, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    L. B. Olmstead, for appellant.
    Butters & Armstrong, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is.a suit by a real estate agent against the same defendant as in Ño. 5,666, Mason v. Miller, post,-, to recover commissions for procuring a purchaser for the same farm as in said case of Mason v. Miller. The jury returned a verdict for defendant, on which he had judgment, and plaintiff appeals.

Appellee owned a farm of 292 acres in La Salle county. He had purchased land in Virginia and intended to remove there, and desired to sell the farm in La Salle county, and authorized appellant to sell it for him, and agreed to pay him one dollar per acre if he sold it, and gave appellant three days in which to sell the farm. Three days after that time expired, appellee and E. H. Wirtz, who owned a farm of 160 acres in La Salle county, made a trade, by which Miller took the Wirtz farm and Wirtz took the Miller farm and Wirtz paid Miller $10,300 and conveyed to Miller an interest in a com shredder. Appellant contends that he arranged this trade and is entitled to commissions accordingly. The preponderance of the evidence appears to be that Miller and Wirtz had discussed a trade of these farms before anything was said to appellant about procuring a purchaser. Miller desired to be entirely rid of any land holdings in Illinois before going to Virginia. If Wirtz could sell his farm to some one else, then he could buy the Miller farm and wished' to do so, and before appellant became interested in the matter Miller and Wirtz had agreed that if Wirtz could not find a purchaser for his farm, then they would trade farms substantially on the terms which were afterwards carried out. The preponderance of the evidence is that when appellant found that he was not likely to find a purchaser for the Wirtz farm and therefore would not be able to sell the Miller farm to Wirtz, he proposed this trade, but the parties at once informed him that they had already been arranging a trade if the sale could not be accomplished, and that they did not desire his assistance if the sale of the Wirtz farm fell through, and if they therefore made a trade. The preponderance of the evidence seems to be that after the three days given to appellant had passed, Miller and Wirtz arranged the trade in the farms without the assistance of appellant. If the jury so found appellant was not entitled to commissions.

The wife of appellee was permitted to testify for him, over appellant’s objections, and it is urged that this was error. There was proof that appellee was in feeble health and had been ever since a serious illness some years before; that he was hard of hearing; that his mental capacity for conducting negotiations was somewhat defective; that his wife had acted as his agent for several years in every important business transaction; and that appellee expressly directed appellant to talk with his wife, and' that it was with the wife that he made the contract upon which he now sues. Much of this evidence came from appellant. We are satisfied that she was a competent witness as the agent of her husband.

It is contended that the court erred in refusing in.struction No. 27, requested by appellant and in giving instruction No. 18 requested by appellee. No. 27 ignored certain elements of the defense and No. 18 was we think the law as applied to the evidence in this particular case, and the jury were otherwise fully and sufficiently instructed.

The judgment is therefore affirmed.

!Affirmed.


text:
    Joseph S. Babcock, Appellant, v. Joseph S. Babcock, Jr., et al., Appellees.
    Gen. No. 5,696.
    1. Mortgages—evidence to establish. ' It requires clear and decisive evidence to convert a deed absolute on its face into a mortgage.
    2. Wills—who may attach. One who accepts an interest conveyed to him by will cannot defeat the will in any other respect.
    3. Mortgages—bill to have deed declared a mortgage. Where complainant conveys property to his mother by a deed absolute in form and afterwards accepts a life interest conveyed to him by her will and acts as guardian for his children to whom the fee is devised, he is estopped to deny the validity of the will and a bill to have the deed declared a mortgage is properly denied for want of equity.
    4. Infants—fees of guardian ad litem. On a bill to have a deed declared a mortgage, an allowance of $500 to the guardian ad litem. as solicitor for minor defendants charged against unsuccessful complainant as costs will be reversed and cause remanded with directions to allow a fee of $25.00, two-thirds of cost to be taxed against complainant and one-third against defendants.
    Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the June term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed March 12, 1913.
    A. C. Norton and F. A. Ortman, for appellant.
    James T. Terry, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee filed a bill to have a deed declared a mortgage and to redeem therefrom. He alleged that in 1901 he owned certain real estate in Livingston county; that on April 29, 1901, he deeded the same to his mother, Mary O. Babcock; that, though this was a deed absolute on its face, yet it was intended only as security for the repayment to his mother of $2,995.50 which he then borrowed from her; that on January 4, 1903, his mother died leaving a last will, which was admitted to probate and a copy of which was an exhibit to the bill, which will gave to appellant the use for life of the lands he had deeded to her, with remainder in fee to the children of appellant, share and share alike; that his children at that time were Mary, Joseph, Bertha and Edward; that Mary thereafter deeded to appellant her interest in said lands. In the bill appellant offered to pay the amount of said loan and interest and asked a decree that the deed might be set aside. All of appellant’s children, except Mary, were minors, and they answered by a guardian ad litem, denying the facts charged in the bill and alleging laches and the Statute of Limitations and setting up by way of estoppel his various acts after the death of his mother. The cause went to the master, who took and reported the proofs, with his findings in favor of the defendants. Objections thereto were ordered to stand as exceptions before the court and they were overruled and the bill was dismissed for want of equity, with costs, including a fee of $500 to the guardian ad litem. Complainant appeals from that decree and argues that it is wrong on the merits and that the allowance of said guardian ad litem’s fee against him as costs is erroneous.

Appellant proved that in April, 1901, his mother borrowed $3,000 from D. S. Myers and secured it upon real estate owned by her and, after a deduction of a small sum for the continuance of an abstract and for recording, caused $2,995.50 to be deposited in the bank on April 26, 1901, to the credit of appellant, and that Mary O. Babcock then told Myers that she was getting the money for appellant and that he was securing her. Mary Babcock, appellant’s adult daughter testified that the fall before her grandmother died and when the witness was 12 years old, her grandmother told her that appellant had borrowed about $3,000 and deeded the farm to her for security; that she was not to deed it back to. him till he paid the money, but was to deed it back to him if he paid the money; and that, in another conversation, a little later, between her father and her grandmother, appellant asked his mother when she would deed the land back to him and she replied, “When you pay the $3,000 I will deed it back to you.” May Babcock a sister of appellant, testified that she remembered of appellant deeding his farm to their mother in 1901; that some time after-wards her mother said that appellant would have to pay that mortgage, that $3,000; that she would not deed the land back to him till he paid her back the $3,000. In addition to this it seems to be conceded that appellant continued in possession of said farm after the making of said deed, though we find no testimony to that effect.

The facts upon which appellees rely include the following: It is not claimed that appellant gave his mother any note for $3,000 or $2,995.50 or any other sum. The consideration named in the deed was one dollar only. On the same day that the deed was drawn and executed, Mary O. Babcock caused to be prepared and executed the will in question, in which she described this real estate and gave a life interest therein to appellant and the fee to his children, and it was stipulated that the deed and the will were both drawn by the same attorney. There were mortgages upon this land and there are some things in the record which tend to show that appellant was owing other parties, who had sued him or were liable to do so, and the fact that the deed and will were prepared on the same day in the same office by the same lawyer tend to show that this was a family arrangement or settlement to protect appellant’s children as against future indebtedness which he might incur.. The will which gave him a life interest in this land and the fee to his children, named him as executor, and the will was probated upon his petition and in that petition he stated under oath that his mother died seized of real estate valued at about $45,000, and incumbered for about $14,000 which statement appears to have been based mainly upon her title to this real estate. Thereafter he filed a petition in the County Court under his oath, in which he stated that his four children were then minors and that they had no property except this real estate (describing the same real estate he had deeded to his mother), and that appellant had the possession and use thereof during his life and that it was incumbered for about $8,500 or $9,000. Upon this petition he was appointed their guardian on July 13, 1903. On July 14, 1903, he filed his petition under oath in said guardianship proceedings, wherein he stated that his said four children were owners of the real estate in question, subject to the life estate of appellant; that they derived their interest in said real estate by the last will of Mary O. Babcock, and that Mary O. Babcock derived title to said lands by deed from appellant; that there was a certain incumbrance upon said land, made by appellant when he was the owner thereof, which was still unpaid, and that, by paying all past due interest and a certain commission, an extension for five years could be obtained. He further set up two other incumbrances which he executed upon said land when he was the owner, which would be foreclosed if not paid, and also certain notes of Mary O. Babcock, which were due and unpaid and which there was not sufficient personal property to pay, and that he was not able to maintain his said wards; that he was willing to join in the execution of a mortgage for a sufficient sum to pay all matured indebtedness; and he asked for authority to arrange for an extension of the first incumbrance and to execute a second incumbrance for a sum sufficient to discharge the other debts. On that petition an order was entered giving him authority as guardian to make said arrangements. On October 19, 1903, he filed another petition in said guardianship matter under his oath, in which he again alleged that his childreii owned this land subject to his life estate, and that they had derived their title from the will of Mary O. Babcock and that she derived her title from appellant, and that, after the obtaining of the former order, he found that he could not make the arrangement at the rate of interest which he was therein permitted to pay, and he set up further debts incurred by him while he owned said lands, and before he conveyed them to Mary O. Babcock, and that they had been put in judgment against him and that the only consideration for his deed to Mary O. Babcock was one dollar and that one of said judgment creditors was threatening to file a creditor’s bill and have said conveyance set aside that he might take the land for the payment of his judgment, and that appellant was willing to execute a mortgage personally and as guardian for a sum sufficient to pay all said debts. Under date of February 26, 1909, he filed in the guardianship matter another petition under his oath, in which he set out again the deed to his mother and her will, and he asked for further authority concerning said debt. He had orders conformable to these various petitions. Pursuant to these orders appellant in his own right and as guardian of his minor children, executed incumbrances upon said land, one of which professed to be made by virtue of said orders. Thereafter, on September 6,1911, he filed this bill.

It requires clear and decisive evidence to convert a deed absolute on its face into a mortgage. May v. May, 158 Ill. 209. One who accepts .an interest conveyed to him by will cannot seek to defeat the will in any other respect. Appellant in the petitions above referred to asserted that he was the owner of a life estate in these lands by virtue of his mother’s will, and he therefore cannot be heard to dispute the title conveyed to his children by the same will. Cunningham v. Daugherty, 220 Ill. 45. We are also of opinion that since, in the guardianship proceedings referred to, appellant asserted the validity of his deed to his mother as an actual conveyance of the land to her in fee and asserted the validity of her will, whereby she gave appellant a life interest and his children the fee in the same lands, he is now estopped, after the lapse of more than ten years from the making of the deed, to be permitted to redeem from said deed as a mortgage, under the principles laid down in Ferns v. Chapman, 211 Ill. 597, 609. We therefore conclude that the court properly dismissed the hill for want of equity, regardless of the question whether the Statute of Limitations would bar the relief sought.

The proof showed that the allowance of $500 to the guardian ad litem was for services he rendered as solicitor for the minor defendants. Nothwithstanding the expression in Wilson v. Clayburgh, 215 Ill. 506, which case really involved a different question, namely the allowance of a fee out of a trust estate to a solicit- or for a complainant in a hill in equity concerning the trust, we consider Hutchinson v. Hutchinson, 152 Ill. 347, conclusive that such services cannot be charged as costs against an unsuccessful complainant. The reasons stated in that opinion need not be repeated here. We announced the same conclusion in Fellows v. Fellows, 89 Ill. App. 482. See also Gagnon v. Burton, 107 Ill. App. 506.

The decree is affirmed, except as to the allowance to the guardian ad litem, and that allowance is reversed, and the cause is remanded with directions to allow the guardian ad litem a fee of twenty-five dollars. Two-thirds of the costs of this court will he-taxed against appellant and one-third against appellees.

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


text:
    William L. Aster, Executor, Appellant, v. Cora Ralston et al., Appellants, and Elizabeth Hartz Barton et al., Appellees.
    Gen. No. 5,701.
    1. Wills—estoppel to dispute. A legatee or devisee cannot take under a will and at the same time dispute the truth of what the téstator has said in the will regarding the deduction of an amount advanced or loaned.
    2. Wills—legatee may show he has paid advancement. A legatee or devisee may show that he paid a loan or advancement after the will was executed and therefore deduction should not be made from his share.
    3. Wills—proof that advancement has been paid. A receipt signed by the testator in his own hand writing and bearing a date subsequent to the execution of the will is sufficient to show that a sum advanced to his daughter had been repaid and should not be deducted from her share.
    4. Appeals and erbobs—when cross errors cannot be assigned. An appeal from a single portion of a decree does not carry other independent matters involved therein, and cross errors cannot be assigned on such matters.
    5. Appeals and eerobs—where appeal is from portion of decree. An appeal from so much of a decree as finds certain shares not subject to a deduction on account of an advancement set forth in a will does not carry cross errors upon the allowance of solicitor’s fe.es to complainant.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.

      Certiorari denied by Supreme Court (making opinion final).

      H. A. Weld, for appellants.
    Jackson, Hurst & Stafford, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

William L. Aster as executor of the last will and testament of John Aster, deceased, and as one of the beneficiaries under said will, filed this bill against the other beneficiaries to obtain the aid of a court of equity in determining certain questions arising under the will and to obtain authority to sell real estate of deceased and to divide the estate pursuant to the will. The children of Emma Hartz, a daughter of the testator, answered. The other defendants were defaulted. The cause was referred to the master, who took and reported proofs and conclusions favorable to the children of Emma Hartz, and there was a decree of partition and a sale, and a decree of distribution, and this is an appeal by several children of deceased, from a portion of that decree.

The third and fourth paragraphs of the will were as follows:

“Third: After the death of my said wife I give, devise and bequeath the residue of my estate then remaining in equal parts to my children, Elizabeth Wittenberg, William L. Aster, George W. Aster,' Cora Ralston, Madge Bray, and the children of my daughter Emma Hartz (the said children to take the share that would otherwise go to their mother my daughter Emma Hartz, and to share the same equally between them)— to them and their heirs forever.
Fourth. I have advanced to my son George W. Aster the sum of thirty-five hundred dollars ($3,500.00) and to my daughter Emma Hartz the sum of fifteen hundred dollars ($1,500.00). It is my will and desire that the above amounts be reckoned as a part of my estate with interest thereon from the time said amounts were so advanced at the rate of five per cent, per annum, and upon a final settlement of my estate and a distribution thereof, I desire that the said sums so advanced as aforesaid together with the interest thereon accrued at the rate aforesaid be charged against my said son George W. Aster and the children of my said daughter Emma Hartz, respectively, and that the same be deducted from their shares of my estate as hereinabove provided,—my intention being to equalize the shares of my said children, together with the children of my daughter Emma Hartz, in the final division of my estate.”

The children of Emma Hartz contend that their mother setled said matter of $1,500 with the testator after the will was made and therefore they should receive the share of said estate given them by the third paragraph of said will, without deducting said $1,500. The master in chancery and the court so held and the decree so provides. Appellants contend (1) that said children of Emma Hartz cannot contradict the language of the will and still take under the will, and (2) that the evidence is insufficient to show that said sum of $1,500 was paid after the will was executed. These are the only questions raised by the appeal.

We are of opinion that where a testator by his will directs a deduction from the share of any legatee or devisee- because of some amount which the will declares had been advanced or loaned to such legatee or devisee, the latter cannot take under the will and at the same time dispute the truth of what the testator has said in his will, but that the directions of the latter to deduct that amount must be carried out. But, we are of opinion that if the loan, debt or advancement described by the testator in his will shall be paid by said legatee or devisee after the will is executed that fact may be shown, and if proven, the deduction should not then be made. This will shows that the testator intended his children to share equally in his estate, except that the share which otherwise would have gone to Emma Hartz should be paid to her children. Now, if Emma Hartz did in fact pay or in any way satisfy the testator for this advancement after the will was made, it would entirely destroy the equality intended by the testator to still deduct that sum from the share given to the children of Emma Hartz. We so held in substance in Lewis v. Lewis, 150 Ill. App. 354, on pp. 362 et seq.

Emma Hartz. died on the day that the hearing of proofs before the master was begun and appellees have therefore been deprived of her testimony. Their father, Ben C. Hartz, testified for them. Objection is made to his testimony. We see no reason why he was not a competent witness in behalf of his children, but so much of his testimony as narrated what his wife, Emma Hartz told him was not competent, and is omitted from our consideration. It sufficiently appears in the competent proof that John Aster bought a house and lot for his daughter, Emma Hartz, and paid therefor $1,750 and moved away the house and gave it to a son. Apparently he estimated the value of the lot, without the house, at $1,500. Thereafter she paid him various sums, receipts for which, bearing his signature, were found among her papers after her death. The will was executed on December 21, 1903. Under date of December 1, 1904, nearly a year after the execution of the will, he gave her the following receipt, all in his own hand writing, which was found among the papers of Mrs. Hartz after her death.

“Bock Island, December 1, 1904.

Deceived of Ama Sary Hartz fifteen hunthert & fifty doalrs in ful.

John Astee.”

We are of opinion that the evidence sufficiently shows that there was no transaction between Mrs. Hartz and her father to which this receipt could have applied and to which the will referred, except the sum he paid for said lot. We therefore conclude that the master and the court were justified in finding that the sum advanced "by John Aster to his daughter Mrs. Hartz, as narrated in the will, was afterwards paid by her to him, or was adjusted in some manner which he received in full satisfaction of that debt, and that equity required that it should not be deducted from her children’s share under the will.

Appellees have assigned cross errors upon the allowance of solicitor’s fees to complainant, on the ground that this was not an amicable suit and that no evidence was preserved in the record of the value of the services. The complainant and the appealing defendants expressly limited their appeal to “so much of this decree as finds that the respective shares of Elizabeth Hartz Barton, Maud Hartz and Ben Hartz are not subject to deduction on account of the advancement set forth in the fourth clause of the will of John Aster, deceased, as having been made to their mother, Emma Hartz and to so much of this decree as orders a full fifteenth part of the proceeds of said sale to be paid to each of the said Elizabeth Hartz Barton, Maud' Hartz and Ben Hartz.” It was that appeal only which was allowed, and their bond was limited to an appeal on that' subject. An appeal from a single portion of a decree does not carry up other independent matters involved therein, and cross errors cannot be assigned on such independent matters. Walter v. Pritchard, 121 Ill. 221; Kingsbury v. Powers, 131 Ill. 182; Rose v. Hale, 185 Ill. 378; Bache v. Ward, 225 Ill. 320. Those cross errors therefore are not well assigned.

The decree is affirmed.

■Affirmed.


text:
    Oscar Heinrich, County Clerk, Appellant, v. Christopher Harrigan et al., Appellees.
    Gen. No. 5,702.
    1. Inteepleadee—rule as to right of filing till. The right to file a bill of interpleader depends upon the existence of the following conditions: (1) the same thing, debt, or duty, must be claimed by all the parties against whom relief is demanded; (2) all the adverse titles or claims must be dependent on, or be derived from, a common source; (3) the person asking the relief must not have nor claim any interest in the subject-matter; (4) he must have incurred no independent liability to either of the claimants and stand perfectly indifferent, in the position merely of a stakeholder.
    2. Inteepleadee—when till lies as to tax sale redemption fund. A fund, held by a county clerk for the redemption of certificates of purchase at a tax sale, was claimed by the holder of the certificates in a suit and also by the county in a notice of claim to an equitable lien on such fund for delinquent taxes, of which the original purchaser of the certificates had deprived the county by fraudulently assigning the certificate in blank for the purpose of preventing the collection of such taxes, levied against him, the present holder of the certificate being a party to the fraud. Held, that a bill of inter-pleader by the clerk against the holder of the certificates and the county, alleging such facts, and praying that defendants be required to litigate between themselves their rights to the fund was not demurrable.
    3. Inteepleadee—when lies. A bill of interpleader is not demurrable because one claim is enforceable at law and the other in equity.
    4. Inteepleadee—when only one claimant has sued. A bill of interpleader is not demurrable because only one of the claimants to a fund has brought suit, nor because the bill does not show that he would or would not be successful.
    5. Inteepleadee—complainant must te disinterested only financially. The rule requiring the complainant in a bill of interpleader to be indifferent between the parties has reference to financial disinterestedness, and is not involved by his opinions, sentiments or averments of fraud against one of the defendants.
    6. Taxation—possessor of certificate of sale prima facie owner. Possession of a certificate of purchase at a tax sale, duly assigned in blank by the purchaser, is prima facie ownership of a fund deposited with the county clerk for its redemption.

      Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putekbatjoh, Judge, presiding. Heard in this court at the October term, 1912.
    Reyersed and remanded with directions.
    Opinion filed March 12, 1913.
    Sheer & Galbraith, for appellant.
    Ellwood & Meek and Charles A. Kimmel, for ap-, pellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Circuit Court of Peoria county sustained a demurrer to a bill of interpleader filed by Oscar Heinrich, county clerk of Peoria county, against Christopher Harrigan and the county of Peoria. Heinrich amended by inserting an additional paragraph in his bill and the court again sustained a demurrer thereto and dismissed the bill for want of equity, and Heinrich appeals from that decree.

The bill alleged that Heinrich was and is county clerk; that Michael Harrigan bought various tracts of land at tax sales in said county and received certificates of purchase therefor, that the total due upon said certificates amounted to $1,283.48 and that in redemption said amounts were paid to said clerk on or about December 18, 1911; that for a long series of years Michael Harrigan had failed to pay, and the collectors had been unable to collect large sums assessed against Michael Harrigan for taxes, the total delinquency amounting to $5,226.13; that Michael Harrigan died in November,*'1911, and on December 18, 1911, an administrator of his estate was appointed by the Probate Court and that the county of Peoria on that day filed a claim- against his estate for $4,216.53 being said delinquent taxes, except the taxes for the year 1911, for which also he was justly indebted to the county; that on December 13, 1911, which was before said redemption money was paid to the county clerk, the board of supervisors passed a resolution, directing the county clerk to hold the moneys paid upon such certificates of purchase for the county of Peoria for said taxes and that, on February 20, 1912, the State’s Attorney of said county notified said county clerk to so hold the moneys collected upon said certificates of purchase; and on said February 20, 1912, Christopher Harrigan, a brother of Michael Harrigan, deceased, demanded said moneys from the county clerk as' assignee of said certificates; that the county clerk did not comply with his demand, and that on March 1, 1912, Christopher Harrigan sued the county clerk in the Circuit Court of Peoria county to recover the amount paid for the redemption of said tax sale certificates. By the amendment the county clerk alleged that it came to his knowledge that Michael Harrigan had been in the business of buying at tax sales and assigning his certificates of purchase in blank for the purpose of defeating the collection of taxes levied and assessed against bim and to hinder and defraud the county of Peoria and the other taxing bodies out of the taxes due them from bim, and that, by reason of such fraudulent assignments and other fraudulent devices, the tax collectors could not collect said taxes, and that thereupon the board of supervisors, in order to collect said delinquent taxes, notified the county clerk that the alleged assignments of said certificates of purchase to Christopher Harrigan were null and void and made with intent to hinder and defraud the county of Peoria,- creditor of Michael Harrigan, and other creditors, and that Christopher Harrigan had knowledge of such fraudulent intent and participated therein, in violation of section 4 of the statute concerning Frauds and Perjuries; and that the county clerk upon said knowledge and said notice, refused to pay Christopher Harrigan said moneys, and is afraid to do so, and is unable to determine his. duty in the premises. The bill alleged that the complainant had always been willing to pay the money received upon said certificates of purchase to the person lawfully entitled thereto and to whom he could pay the same safely, and he offered to bring said money into court. The bill alleged that the complainant did not collude with either of the parties, and it asked that Christopher Harrigan and the county of Peoria be required to litigate between themselves their rights to said fund.

The right to file a bill of interpleader depends upon the existence of the four following conditions: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded; (2) All their adverse titles or claims must be dependent on or be derived from a common source; (3) The person asking the relief must not have nor claim any interest in the subject-matter; (4) He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stake-holder. This rule has the sanction of our supreme court in Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, and other cases. The bill shows that Christopher Harrigan and the county of Peoria are each claiming the redemption money now in the hands of the county clerk on the redemption from said sales to Michael Harrigan. Christopher Harrigan claims as the assignee of said certificates, and his possession of the certificates duly assigned in blank by Michael Harrigan makes him prima facie the owner of the fund. Larson v. Glos, 235 Ill. 584; Village of Morgan Park v. Knopf, 210 Ill. 453. The claim of the county is that the assignment of these certificates to Christopher Harrigan was fraudulent and was intended to deprive the county of Peoria of the taxes for which Michael Harrigan was delinquent, as shown by the books in the same county clerk’s office, and that the delinquency far exceeds the amount of the redemption money, and that the county has a lien on said money and has a right to have it applied by the county clerk in payment of said taxes. The claimants are seeking the same fund. One claims as the assignee of Michael Harrigan, and the other by its notice attacks the assignment for fraud and seeks to reach the fund as still in equity the property of Michael Harrigan. The complainant was not obliged to show that Christopher Harrigan’s suit against himself would be successful or unsuccessful, nor whether the claim of the county could be maintained. It makes no difference that only one of the claimants has as yet sued him, nor that one claim might be enforceable at law and the other in equity. Newhall v. Kastens, 70 Ill. 156. Hnder the allegations of the bill, complainant has no interest in the subject-matter, and when he pays the money into court pursuant to an order permitting him to do so and requiring. .defendants to interplead concerning their right to said fund he will have no further interest in the litigation. The rule above stated requires him to be indifferent between the parties. If that rule means that he shall have no opinion as to which of the defendants ought to have the fund and shall not care as a matter of sentiment which finally receives it, then it might well be that this bill would fail to meet the requirements of the rule, for in the amendment to the bill complainant calls Christopher Harrigan a fraudulent grantee after averring that he has learned that the assignment was made and received to hinder the county as a creditor of Michael Harrigan. But we conclude that what the rule means is that he shall stand financially indifferent between the parties and acting as a mere stakeholder. If, for example the bill showed that if the money belonged to one of the parties, complainant would be entitled to a commission out of the fund, while he would not be entitled to anything therefrom if the other party was entitled thereto, then he would have a financial interest in the success of the former. Here the complainant does not assert any financial interest in the fund and he is merely the stakeholder.

The decree is therefore reversed and the cause remanded with directions to overrule the demurrer to ..the amended bill.

Reversed and remanded with directions.


text:
    Miller & Graves, Defendants in Error, v. Vannie L. Pratz, Executrix, Plaintiff in Error.
    Gen. No. 5,705.
    1. Payment—presumption as to checks. On hearing oí a claim against a decedent’s estate based on book account the executrix offered in rebuttal a number of checks, signed with decedent's name by a third person, drawn to the order of claimants, and by them indorsed, and paid and canceled by the bank. Of such checks, six had been credited by claimants on the account of decedent, and the others were claimed to have been applied by them on deals with the third person. Held, that the presumption is, if decedent, at the time of delivery of any of these checks, was indebted to claimants on his book account, that it was paid upon that debt until evidence shows that it was in fact paid upon the account of the third person or on some deal with him, or some other explanation appears in the testimony.
    2. Payment—presumption as to checks. "Where one pays money or delivers a check for money to another, and there is no explanation of the cause of such payment, if business relations only exist between the parties the ordinary presumption is that the" money was paid because it was due and owing.
    3. Payment—presumption as to check larger than balance due. "Where a check has been delivered by one owing on account much less than the amount of such check, the presumption is that it was paid, in whole or in part, on some pther account, and charging the excess against the payee is not authorized.
    4. Evidence—of plaintiff competent as to books of account in suit against executrix. In an action on a book account against an executrix, a member of the plaintiff partnership, who had kept the books, is competent to make the supplementary oath, authorizing the admission of the books in evidence.
    5. Evidence—by parties competent in all cases as to admission of books of account. A party to a suit may testify in all cases to the extent necessary to admit his books of account in evidence, but where the adverse party sues or defends as executor, etc., he cannot become a witness at large as to transactions entered therein.
    6. Evidence—by parties to suit for admitting books of account always competent. Section 3 of the act entitled “Evidence,” providing that any party may give the testimony necessary to admit hooks of account in evidence, is an independent provision, and has reference to neither of sections 1 and 2.
    Error to the Circuit Court of Stark county; the Hon. Nicholas E. Worthington, Judge,- presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Rehearing denied April 15, 1913.
    Eagleton & Stone and Wright & Wright, for plaintiff in error.
    Kerns & Fling and James H. Kennick, for defendants in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Miller & Graves, partners and merchants, filed a claim against the estate of John E. Pratz, deceased, in the County Court of Stark county. On the first trial the jury disagreed and on the second trial found a verdict for claimants for $1.00 on which they had judgment. Each party appealed to the Circuit Court. The appeals were consolidated. The Circuit Court-found it was a matter of accounting and ought to go to referees. The parties agreed on three referees, who took the testimony and reported the same and their conclusions. Each side filed exceptions and those of claimants were sustained and those of defendant were overruled and claimants had a judgment for $712.42, pursuant to the report of the referees. The executrix-appealed to this court and filed an appeal bond, but that appeal should have been prosecuted to our April term, 1912, and the case' now comes to us by writ of error.

The claim was based upon a book account and the books were kept by Graves, one "of the claimants, and he was permitted to make the supplementary oath authorizing the admission of the hooks in evidence. We sustain that ruling and hold it the natural conclusion to be drawn from the first three sections of the act in regard to Evidence. Section 1 provides that no person shall be disqualified as a witness in any civil suit, except as thereinafter stated, by reason of his interest in the event thereof. Section 2 provides that no party' to a civil action shall be allowed to testify therein' in his own behalf “by virtue of the foregoing section” when the adverse party sues or defends as executor, etc. Section 3 provides that where in any civil action the claim or defense is founded on a book account, any party may give the testimony necessary to admit the books. The meaning of section 2 is that section 1 shall not authorize the party to testify in his own behalf against an executor. Section 3 we regard as an independent provision, having no reference to either sections 1 or 2. We are of opinion that it was meant thereby to provide that in all cases a party may testify as therein stated to the extent necessary to admit his books in evidence. If it had been intended that such evidence could not be given to the books by an interested party where the adverse party acted in a representative capacity, then there was no need to adopt section 3 at all, or where section 2 said that the party could not testify “by virtue of the foregoing section” it should have read “by virtue of the foregoing or the succeeding sections.” These views were expressed by this court in Alling v. Brazee, 27 Ill. App. 595. The Appellate Court for the First District so held in the majority opinion in McGlasson v. Housel, 127 Ill. App. 360.

After claimants had introduced their account books, showing an itemized account against Pratz, running from June 23,1900, to April 1,1909, the total debits of which were $8,011.89, with numerous credits from time to time, amounting to $7,279.47 and showing a balance due of $732.42, defendant in rebuttal offered in evidence a large number of checks, drawn upon a banking house to the order of Miller & Graves arid by them indorsed and paid and canceled by the bank. Two of these checks were signed, “ J. E. Pratz.” The rest of them were “J. E. Pratz by Smith Owens.” In rebuttal claimants were allowed to examine Graves at large as a witness, and he gave much evidence tending to show that many of those checks were paid to Miller & Graves by Smith Owens for merchandise which he obtained upon his own account for a large building which he was erecting and upon other dealings of his own. This evidence was heard over repeated objections that he was incompetent to testify thereto under the statute. The referees allowed the estate a credit for one check of December 5, 1900, for $20 signed by Pratz, and rejected all the other checks and allowed the account in the sum of $712.42. Under section 2 of the statute above referred to, Graves was an incompetent witness as to the matters testified to by him in rebuttal, and we cannot consider his evidence. The claimants contend that we must assume that the checks signed, “J. E. Pratz by Smith Owens,” were not the checks of Pratz but of Owens, and that they should not be credited upon this account in any event. But, upon comparing the checks with the credits upon claimant’s books, we find that claimants have, given credit to Pratz on said account for five checks, signed as last above stated, and aggregating $2,250.91. True, these credits read “by cash” instead of “by check,” but as the dates and amounts correspond it is entirely clear that these credits were given for those checks. There is also a check for $290.90 dated January 6, 1902, and a corresponding credit on claimants’ books on January 6, 1903, of which it is reasonably clear that the drawer of the check simply forgot that he had passed from 1902 to 1903. This makes the total of checks signed “J. E. Pratz by Smith Owens,” for which claimants have given Pratz credit $2,541.81. It is idle therefore to argue that none of the checks so signed were intended as payments on this account.

The first check offered in evidence was dated December 4, 1900, and the last one was dated July 24, 1906, and all the checks were within the time this account was running. Where one pays money or delivers a check for money to another and there is no explanation of the cause of such payment, and if business relations only exist between the parties, the ordinary presumption is that the money was paid because it was due and owing. Bromwell v. Estate of Bromwell, 139 Ill. 424; Chesnut v. Chesnut, 15 Ill. App. 390; Kinahan v. Butler, 133 Ill. App. 459. It follows that if at the time when any of these checks were drawn and delivered to claimants, J. E. Pratz was at that time indebted to the claimants upon this book account, the presumption is that it was paid upon that debt, unless some other explanation appears in the evidence. If however, it is shown that the check was in fact paid upon the account of Smith Owens, or to pay for merchandise delivered to him or upon some trade or deal with him, then it should not be credited. upon this account. An example of this kind appears in the check of December 9, 1904, for $874.10, which the evidence strongly tends to show was paid for the benefit of Owens and not upon this account. If, at the time when any check was paid to claimants, it appears that Pratz was not then owing claimants or was owing much less than the amount of such check, this does not authorize a charge of the excess or of the check against claimants, but, in the absence of .explanation, the presumption would be that it was paid on some other account in whole or in part. There are cases where, at the date of some of these checks, a credit was given for a lesser amount, but the cents exactly correspond, and this has a tendency to show that part of the check was applied on this account and duly credited and the rest was used for some other purpose. As .we view the law under the proofs now before us it would appear that the checks alone cannot be used further than to reduce or extinguish the book account of claimants, and that the checks alone will not authorize any presumption that claimants were indebted to the estate for any excess thereof over this account.

The judgment is therefore reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.