text:
    Libbie Waterstrow, Appellee, v. National Americans, Appellant.
    Gen. No. 5,804.
    1. Release, § 8

      —when resort to equity necessary to avoid fraudulent release. Where there is fraud in the execution of a release, such as misreading it or substituting one paper for another, or any like trick, recovery can be had on the instrument at law, notwithstanding the release; but where the signature is not obtained by fraud, resort must be had to equity to avoid the release.
    2. Insurance, § 852

      —when by-law of benefit society no bar to suit to set aside a fraudulent release. A by-law of an association depriving the beneficiary of the right to maintain an action to set aside a compromise unless written revocation is made and money refunded within ten days after the compromise was made, held, no bar to an action to set aside a release obtained from beneficiary by fraud.
    3. Insurance, § 911

      —when payment should be ordered according to terms of benefit certificate. On bill to set aside a release obtained from beneficiary by fraud, a decree permitting recovery of the benefits should order payments payable in instalments when so provided by the certificate.
    4. Insurrance, § 907*—when proofs of death insufficient to show date of inception of disease. Proof of death stating that deceased member had taken sick on or about a certain date and that the cause of death is said to be cancer, held not to state that deceased had cancer on said date.

      5. Insurance, § 887

      —when written report of an investigation bureau, incompetent. A report of an inspection bureau obtained at the request of the order concerning statements of the doctor who treated the deceased member as to length of time cancer existed, held incompetent.
    6. Insurance, § 852

      —when evidence sufficient to prove release from beneficiary was obtained by fraud. Evidence held sufficient to show that a written release by beneficiary of all claims against the society was procured by fraud on the part of an adjuster for the benefit society.
    7. Appeal and error, § 361

      —when defense that suit was premature, waived. Objection that suit was prematurely brought cannot be urged for the first time on appeal.
    8. Appeal and error, § 361

      —when grounds of defense waived. Decree granting recovery on a benefit certificate, without deducting certain assessments as provided by by-laws of society; cannot be complained of where such by-law was not pleaded as a defense and no objection was made which raised the question below.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    David C. Finley and Sears & Solfisburg, for appellant.
    John M. Raymond, John K. Newhall and Fred B. Shearer, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Under date of December 27, 1909, the National Annuity Association, whose name has since been changed to National Americans, issued a beneficiary certificate to Chris M. Waterstrow, a member of Aurora Assembly No. 187, of said order, located at Aurora, Illinois, wherein his wife, Libbie Waterstrow, was made beneficiary, and it was therein provided that in the event of the death of the member in good standing said beneficiary should be paid by the association an annuity of three hundred dollars per year for ten years, payable quarterly. Waterstrow died 'September 23, 1911. Under a provision of the certificate, an immediate relief benefit of one hundred dollars was paid to the beneficiary. Thereafter, proofs of death were made. Afterwards, an adjuster of the order visited Mrs. Waterstrow, paid her fifty dollars, and took from her the policy, with a release thereof signed by her. Four days later she sent the order a revocation of said settlement, but did not return the money. Afterwards she brought an action on the case against the order, and in her declaration charged that the adjuster had fraudulently obtained said release and the policy from her, and she set out wherein the fraud consisted and sought to recover the present worth thereof. She added a count in trover. After issue joined upon this declaration, Mrs. Waterstrow, by leave of court, changed the action from law to chancery and filed a bill in equity, in which she alleged the issue of the certificate, that her husband obeyed all rules of the order and paid all dues and died, and that proofs of death were furnished and that the adjuster of the order obtained a settlement with her for fifty dollars by false and fraudulent statements and conduct, set out at length in the bill, and that she had revoked the settlement. She asked that the release be set aside and that she be given a decree for the present value of the policy and other relief. The order answered, admitting the issue of the certificate, setting up the settlement as a defense, denying that it was procured by fraud, and making various other allegations. The court heard the proofs and entered a decree, finding the settlement fraudulent and setting it aside and crediting the order with the one hundred dollars paid as an immediate relief benefit and the fifty dollars paid on the settlement, and directing that the order pay the beneficiary one hundred and fifty dollars, being two quarterly instalments, due at the date of the decree, and that the order further pay the beneficiary two thousand seven hundred dollars in quarterly instalments of seventy-five dollars each, on the 23rd days of December, March, June and September, for nine years after December 23, 1912, until two thousand seven hundred dollars was fully paid, with execution for each overdue and unpaid instalment. The order appeals and claims (1) that under section 77 of the laws of the order, and the proofs, this beneficiary certificate is null and void; (2) that the settlement was without fraud and is binding ; (3) that, under section 44 of said laws, the revocation of the settlement was not effective, because the money paid appellee at the settlement was not returned; (4) that the suit was brought before any instalment was due and therefore should have been dismissed; (5) that it was error to permit the change from law to equity; (6) that, under section 88 of said laws, certain deductions should have been made and therefore the decree is for too large an amount. The beneficiary assigns cross-errors and urges (7) that she was entitled to a decree for the present worth of the certificate, payable at once and not in instalments.

Section 77 of the laws of the order provides, among other things, that if a member dies of cancer, which developed within twelve months from the acceptance of his certificate, the same shall be null and void and all liability of the order cease, except to pay the beneficiary an amount equal to all assessments the member has contributed to the association. Waterstrow died on September 23, 1911, of cancer of the mouth. The certificate was issued December 27, 1909, and Waterstrow accepted the certificate on January 12, 1910.

The proofs of death contained the following: “We have made personal inquiry concerning the cause of death of said Chris M. Waterstrow, and find that he was taken sick on about the 11 day of Oct., 1910, and that the cause of death is said to be cancer of mouth and throat, and to our personal knowledge said deceased member had not been complaining of above-named trouble prior to the date of sickness first above mentioned.”

Appellant argues that this shows that Waterstrow was afflicted with cancer on October 11, 1910, which was within one year from the acceptance of the contract, and therefore the association was only liable to pay the beneficiary the assessments paid by the member, the amount of which was small. The language above quoted from the proofs of death does not state that Waterstrow had cancer on October 11, 1910. These proofs of death were not made by the beneficiary, but by J. B. McDole, the local president, and by L. H. Valentine, the local secretary, of Aurora Assembly No. 187, of the appellant order. They filled out these blank proofs in the presence of the beneficiary, after asking her questions. She did not tell them that her husband had cancer at that date, but only that he" was sick one day or two days in October, 1911, and thereafter worked regularly at his employment as fireman of a stationary engine, and first consulted a physican in June, 1912, and then not for the ailment which was subsequently pronounced cancer. It is clear from the evidence in McDole and Valentine that they not only did not understand the beneficiary to say that Waterstrow had cancer in October, 1911, but that they did not intend to so state in the proofs of loss, and that they did not suppose or think that Waterstrow, with whom one of them was well acquainted and in frequent contact, had cancer at that time or prior to June following. It seems that the order requested some investigation concerning this matter from an organization which bore the name “National Inspection Bureau.” The order offered in evidence a letter or report from the general manager of said bureau, in which there were allegations that Dr. J. W. McDonald of Aurora, who had treated Waterstrow in June, July and August of 1911, had said concerning Waterstrow’s disease of cancer that it had existed three or four weeks and might have existed two or three years. The statements contained in this report were entirely incompetent as evidence. Appellant introduced no other proof that the deceased was affected with cancer within one year after the certificate was accepted. This proof was insufficient to defeat the policy. Appellee proved affirmatively by Dr. McDonald that Waterstrow first came to him on June 18, 1911; that he was suffering from an infection at and just above the wrist on one arm; that the doctor opened the arm, cleaned out the diseased tissues and put in antiseptic dressing and thereafter treated' him during the rest of June and the month of July for the condition of this arm and that the last time Waterstrow was in his office, about August 12, 1911, he noticed a redness upon the left corner of his mouth, a condition which he had not noticed before; that he ° examined the mouth and found an ulcerated tooth just inside of this point, which tooth it seems was jagged and had irritated the lip and the irritation extended down to the jaw and the growth was malignant. The doctor told Waterstrow that this was very serious and shortly thereafter told his wife that it was cancer of the mouth. As they were poor, the wife sent him immediately to New York State to his mother, who was well-to-do. The mother placed him in a hospital at Eochester the next day after he arrived and he died in three weeks. Dr. McDonald gave it as his opinion that this cancerous condition of the mouth had existed from six weeks to two months at the time he first discovered it and that the longest time in which it could have been developing at the stage when he first saw it was two or three months. There was other evidence that he worked regularly and gave no indications of suffering' from any disorder until he consulted Dr. McDonald. When all the evidence on this subject is considered, the court could reach no other conclusion than that this certificate was not void under section 77.

Mrs. Waterstrow testified that at her interview with the adjuster, she was alone except that she held in her arms a baby which was sick and crying; that she told the adjuster that she was uneducated and expected him to deal honestly with her and that he answered that he would; that he told her that he found by looking over the by-laws that she was entitled to nothing; that her husband died of a cancer which he had had for two years before his death; that he had a letter in his pocket from Dr. McDonald, in which the doctor said that her husband had cancer for two years before he died; that she told the adjuster that her husband was not sick two years before he died; that' the adjuster told her thát he had seen and talked with Dr. McDonald, and all he could do was to pay her the assessments, and she could take fifty dollars or nothing. The adjuster told her that he had been with Valentine all the forenoon and that he had seen McDole. He asked her to get the policy. She got it. He wrote the receipt and release upon it. She signed it and he gave her a draft for fifty dollars, which she cashed the next day. The adjuster denied that he told her that he had a letter from McDonald, but stated that he had present this report from the National Inspection Bureau and that he told her what that said Dr. McDonald had stated, and that he also called her attention to the language above quoted from the proofs of death. The cross-examination of the adjuster sufficiently shows that, even by his own account, he conveyed to her the understanding that' Dr. McDonald had stated that the cancer had existed within one year after this certificate was accepted. If this were all the proof on this subject we could not say that the court should have believed the adjuster and disbelieved Mrs. "Waterstrow. But Valentine, the. local secretary, testified that the adjuster visited him before he went to obtain this settlement from Mrs. Waterstrow and that the adjuster told Valentine that he had in his possession a signed statement from Dr. McDonald to the effect that Waterstrow had cancer for a year and one-half to two years before his death, and that he then told the adjuster that he saw Waterstrow frequently up to within six weeks or two months before his death and that he never showed any signs of distress until about that time and that he did not believe that Waterstrow had cancer or was suffering in any way until within six weeks or two months of his death. McDole testified that in the evening’ after the settlement the adjuster told him that he had personally seen Dr. McDonald and that Dr. McDonald told him that Waterstrow had cancer for two years before his death, and that he told the adjuster that he did not believe that Dr. McDonald had ever said so. He also testified that earlier in the day, knowing that the adjuster had arrived, he tried to get Dr. McDonald, but the doctor was engaged upon a confinement case and could not be seen. The adjuster denied that he made these statements to Valentine and McDole. Dr. McDonald testified that he had never seen the adjuster and had never told him or any one that Waterstrow had cancer a year or two before his death. Appellant called the person who had furnished the National Inspection Bureau its information. He declared he did not remember what report he made and refused to tes-' tify what Dr. McDonald told him unless he was first shown his written report and this was not done. It is obvious therefore that the court was warranted in believing that the adjuster falsely and fraudulently told the beneficiary that her husband had died of cancer which existed within one year after the certificate was accepted and that he had a letter from Dr. McDonald in his possession stating tha.t to be the fact, and that the company was not liable to her, except for a return of the assessments paid, and that she must take fifty dollars or nothing, and that in reliance upon these statements she took the fifty dollars and signed the release, and that said release was obtained by fraud.

Section 44 of said laws provided that where there was an apparent difference of judgment between the 'association and the beneficiary as to liability on a benefit certificate and a compromise was made, no action at law or in equity should be commenced by the beneficiary to set aside the compromise unless within ten days after the compromise the beneficiary should send to the association a written revocation of such compromise and return therewith all the money received through the compromise and that a failure to give such written notice and to refund such money within ten days should be a complete bar to any action at law or in equity on such benefit certificate. The proofs warrant the conclusion that this was not a case of an apparent difference in judgment between the association and the beneficiary but a case of an attempt by the association through its adjuster to defraud the beneficiary and that this section 44 ought not to be considered applicable. If said section 44 means that in case the association defrauds its beneficiary, the latter must discover the fraud within ten days and repudiate it in writing and return the money received or the fraud must be permitted to stand, then we must hold such section 44 contrary to public policy. If such a by-law must be literally enforced in a court of law this is now a proceeding in equity. The bill offered to credit the order with the amount paid when said release was obtained and the decree gave that credit and we are of opinion that that is all to which appellant was entitled. Farmers’ & Mechanics’ Life Ass’n v. Caine, 224 Ill. 599.

This suit was begun January 24, 1912. Appellant contends that no instalment'was then due and therefore the decree must be reversed. In its answer appellant expressly stated that at the time this suit was begun, only one instalment was due. It made no claim in that answer that the suit was prematurely brought. The immediate relief benefit of one hundred dollars and the fifty dollars paid at the execution of the release were not paid upon any particular instalment. Appellant cannot be heard to say in this court for the first time that the suit was prematurely brought.

Section 40 of the Practice Act of 1907 (J. & A. ¶8577) provides that if a party, commencing a suit, misconceives his remedy, he may have the suit transferred from law to chancery or from chancery to law, as the case may be, and the suit shall then proceed as though originally commenced on such side of the court. This action was commenced at law. "Where there is fraud in the execution of a release, such as misreading it or substituting one paper for another, or any like trick, recovery can be had on the instrument at law, notwithstanding the release; but where the signature is not obtained by fraud, resort must be had to equity to avoid the release. Hartley v. Chicago & A. R. Co., 214 Ill. 78; Chicago City Ry. Co. v. Uhter, 212 Ill. 174; Papke v. Hammond, Co., 192 Ill. 631. Under these authorities appellee could only avoid this release in a court of equity and the suit was therefore properly transferred from law to equity.

Section 88 of said laws provides that in the event of the maturity of a certificate by death before the member has contributed ten years’ assessments, the unpaid assessments shall be charged against the certificate and deducted from the final payments. This was not done in this case and the failure to make those deductions presents the only serious question. Appellant did not set up this defense in its answer nor suggest that it was entitled to any such deduction. In its answer it stated that if the allegations of the bill were true, then under the by-laws and constitution of appellant, appellee was entitled to three hundred dollars per year in four equal annual instalments of seventy-five dollars each. When appellant’s counsel offered in evidence what he called the by-laws of appellant, he stated that it might be that some of the by-laws were not in force at the time of the death of Waterstrow and that these by-laws need not be considered. Said section 88 was not put in evidence except in that way. It was then agreed by counsel for the respective parties that each party might call the attention of the court to such sections of the by-laws as they thought proper. The record does not show that the attention of the court was ever called to said section 88. As this defense was not pleaded, and no objection was made which raised this question, and as the manner in which said laws were offered makes it not certain that section 88 was in force when Waterstrow died, and as the attention of the court is not shown to have been called to this section of the law at all, we conclude we ought not to reverse because of failure to make said deductions. What the unpaid assessments would be for the unexpired portion of the ten years was a matter peculiarly within the knowledge of appellant, and it produced no proof on that subject.

We conclude that it was proper for the court to make the payments payable in instalments as the certificate provided. The court should enforce the contract which the parties made. While we hold that the beneficiary, being properly in a court of equity, was not required to bring a suit for each instalment, or forty suits in all, yet to enforce payment in one lump sum now, contrary to the terms of the certificate, would be unjust to the other beneficiaries. We consider the cross-error not well assigned. The additional abstract will be taxed against appellant.

The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Joseph J. Joy, Administrator, Appellant, v. Chicago, Burlington & Quincy Railroad Company, Appellee.
    Gen. No. 5,812.
    1. Railroads, § 517

      —duty to trespassers on track. A railroad company owes no duty to a person walking along its tracks without its invitation, either express or implied, except to refrain from wilfully or wantonly injuring him, and to use reasonable care to avoid injury to him af-ter he is discovered to be in peril.

      2. Railroads, § 536

      —when not required to reduce speed. Not the duty of an engineer upon seeing an object on the track to reduce speed so that he could stop in case the object should turn out to be a human being.
    3. Death, § 76

      —when direction of verdict for defendant proper. In an action against a railroad company for wrongful death of deceased who was a trespasser on the track, a direction of a verdict for defendant held proper where there is nothing in plaintiffs evidence to show that the men in charge of the engine had reason to anticipate that the deceased was other than an inanimate object on the track.
    4. Costs, § 33

      —when administrator not taxable with costs. In an action by an administrator for wrongful death of deceased, a judgment against the administrator for costs, awarding execution therefor, is erroneous.
    5. Appeal and error, § 1703

      —when erroneous judgment for costs, waived. Objection that judgment is erroneous in not limiting the payment of costs to due course of administration, and in awarding execution, held waived when not argued in appellant’s brief.
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    R. A. Green, H. M. Kelly and Butters & Armstrong, for appellant.
    Boys, Osborn & Griggs, for appellee; J. A. Connell, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered- the opinion of the court.

Joseph Hayes was killed by being struck by the engine of a passenger train, northbound, between the stations of Ottawa and Dayton on a branch of the Chicago, Burlington & Quincy Railroad, and his administrator brought this action to recover damages for the loss to his next of kin, a widow and child. After the third count had been withdrawn, the declaration consisted of two original and two additional counts. The first count charged that Hayes was on the track a mile south of Dayton and unable to care for his own safety and in great peril; that defendant’s servants operating the train in the daytime knew of the presence of Hayes on said track a sufficient time to have avoided injuring him by the exercise of due care, but that they wantonly and negligently ran the engine against him and he was thereby killed. The second count was similar but omitted the charge of wantonness. The first additional count alleged that defendant’s servants were aware of the peril of Hayes and wantonly and negligently ran against him. The second additional count was the same, except that it averred that after defendant’s servants became aware of the peril of Hayes, they negligently ran against him and killed him. Defendant pleaded not guilty. Upon a jury trial, at the close of the evidence for the plaintiff, the court directed a verdict for the defendant, which was rendered, denied a motion for a new trial and entered a judgment for defendant for costs. The judgment was erroneous in not limiting the payment of costs to due course of administration, and in awarding an execution and this is assigned for error, but it is not argued in appellant’s brief and is therefore waived.

Hayes was lying outside the tracks with his body and legs extending towards or into the ditch, but with his head and right arm resting on the rail. The" head was pushed off the rail and the arm was cut off and Hayes died later the same day. The place where this accident occurred was on a north and south track about three-quarters of a mile south of a public highway crossing, a mile and three-quarters or two miles north of another public highway crossing and about eighty rods north of a private crossing. The nearest house was a quarter of a mile distant. It was therefore a place remote from houses and highways. There was nothing in the evidence to show that the men running the engine had any reason to anticipate the presence of human beings on the right of way at that place. The only persons who saw the object before the injury were the engineer and fireman. The fireman died before the trial. The plaintiff took the deposition of the engineer, who was then out of the employment of the railroad company. When he testified, he was old and had been very ill and was unable to leave his home, and it is evident that his memory was much impaired. He testified that as the engine came around a curve from eighty to one hundred rods south of where Hayes was struck, he saw an object west of the rail and upon the west rail; that no part of the body was visible from the engine, except the head and shoulders, until they got close to him; that he did not know that the object was a man, but thought it was a bunch of waste paper; that some days before that he had stopped his train at that place because of an object on the track and it turned out to be a bundle of waste paper out of a sand ear, and when he saw this object, on the day in question, he thought it was a bundle of waste paper, the same as he had stopped for before, that if he had realized when he first saw it that the object was a human being, he could have stopped his train, which was running up grade at about twenty or twenty-two miles per hour, but that thinking it to be a bundle of waste paper, he paid no further attention to it until they were four or five rods from the object, when the fireman said it was a man, and the witness then did all he could to stop, but could not bring his train to a stop until the third car was opposite the body. There was no other testimony to throw any doubt on this testimony by the engineer. If his testimony were rejected, there is no other testimony having a tendency to make a case for plaintiff. 'The jury could not reasonably believe, contrary to his evidence, that when he first saw the object he recognized that it was a human being. Appellant contends that when the engineer first saw this object he should have realized that it was possible that it was a human being and that due care then required that he should bring his train under control so that he could stop before he reached it, if upon nearer approach it turned out to be a human being, and also that due care required that he should constantly watch the object after he first saw it.

Hayes was a trespasser and the place was remote from human habitation and foot travel. The duty of a railroad company to such a person has been many times stated by our Supreme Court and is stated as follows in Illinois Cent. R. Co. v. Eicher, 202 Ill. 556.

“A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril.”

Appellant relies upon Martin v. Chicago & N. W. Ry. Co., 194 Ill. 138. There an engine and caboose were going along an elevated track in the city of Chicago. The fireman saw an object on the track one thousand four hundred feet ahead but did not believe it was a man and said nothing to the engineer until the engine was within three hundred and sixty or three hundred and eighty feet of where the man was lying, and then he informed the engineer that there was a man on the track and the engineer applied air and reversed the engine and failed to stop until he had run over and killed the man. 'The trial judge at the close of all the evidence, directed a verdict for the railroad company, and that action was affirmed by the Appellate Court and the Supreme Court reversed the judgment and remanded the cause. The deceased in that case was in fact an engineer for the defendant on his way to the place where he would take his engine. At the place where the accident happened there had been a passenger station and there was a stairway on each side of the tracks. For some unknown reason, this engineer went up this stairway and onto these tracks and fell there and apparently received some injury by the fall which made him unconscious. Three engineers testified, and it was admitted that a fourth engineer would testify, that such an engine traveling at the speed shown, if properly handled;-could have been stopped within one hundred and twenty-five feet. There was therefore evidence in that case tending to show that the engineer did not use due care to stop after he knew that there was a man on the track ahead. This evidence made it error for the court to give a peremptory instruction and warranted the reversal. But the Court further in the opinion said:

“But was it not a fact that an object, such as would attract attention such a distance, so upon the track at a place where it would be least expected, was sufficient to put those in charge of the engine on inquiry? And was it not the duty of the fireman, when he saw the object in this strange and unusual place for an object of that size to be, to at least call the attention of the engineer to it at once, and not wait to speculate as to whether it was an animate object, which the engine might kill, or an inanimate object, which mig’ht derail the engine and kill those operating it? Can there be any doubt in a reasonable mind, if the engineer who had not seen this object and did not know of it until after he had passed the watch-tower, had been advised of its presence at Hamlin avenue, he could and would have so put his engine under control that neither of the possible accidents could have happened?”

Appellant contends that these questions show that the court meant to hold that, as soon as some object was discovered, it was the duty of the engineer to reduce speed so that he could stop if it turned out to be a human being. Assuming that the court, by the language above quoted, intended so to hold, it is to be remembered that this was said of a location in the midst of a populous city and at a place where the railroad company maintained stairs which invited the access of human beings to the tracks at that point and that such a rule would not reasonably be equally applicable to a place in the open country, remote from foot travel and where there is no evidence that any trespasser had ever traveled before, unless it be the testimony by one witness that the deceased, who had been in Ottawa on the day in question, was accustomed to go home on foot by the Burlington railroad. It is our conclusion that it would be unreasonable to hold a railroad company to the duty of stopping its trains whenever some object is visible on the road ahead. Dogs, fowls, paper, must often be upon the track ahead of an engineer. To require an engineer to stop his train whenever any object is discerned ahead, and when he has no reason to suppose and does not suppose it to be a human being, would be destructive of its ability to answer the just demands of its patrons and would be entirely beyond the rule laid down in this State. The engineer testified that only the head and shoulders were visible until the engine nearly reached the object. It is obvious that it might readily be that a view of head and shoulders only would not suggest. the presence of a human being. The engineer had stopped there a short time before because of an object which turned out to be a bunch of waste paper from a sand car. He thought this was the same or a similar object. We are of opinion that the rule above quoted from Illinois Cent. R. Co. v. Eicher, supra, does not apply when the engineer merely sees some object ahead, but that in favor of a trespasser the duty only arises when those in charge of the engine discover a human being in peril. Some decisions in other States hold differently and those decisions in part rest on statutes governing the subject. The rule which we deem to be the law in this State is variously stated and applied in Palmer v. Oregon Short Line R. Co., 34 Utah 466; Norfolk & W. R. Co. v. Dunnaway’s Adm’r, 93 Va. 29; Louisville, H. & St. L. R. Co. v. Hathaway’s Ex’x, 121 Ky. 666; Louisville, N. & T. Ry. Co. v. Williams, 69 Miss. 631; San Antonio & A. P. Ry. Co. v. McMillan, 100 Tex. 564; Little Rock, M. R. & T. Ry. v. Haynes, 47 Ark. 497; Missouri Pac. Ry. Co. v. Prewitt, 59 Kan. 734; Burg v. Chicago, R. I. & P. Ry. Co., 90 Iowa 106; Murch v. West N. Y. Ry. Co., 85 N. T. Supp. 601, and in many other cases discussed in these decisions. We do not regard Neice v. Chicago & A. R. Co., 254 Ill. 595, as out of harmony with the decisions above cited. It is there held:

“To run a train in the night time over unlighted station grounds without a headlight, and without any warning or bell or whistle, along a platform where persons may reasonably be expected to be, is evidence tending to prove a wanton and reckless disregard of the safety of such persons.” That principle has no just application to the facts in the case before us. We are of opinion that under the evidence in this case, the jury could not reasonably find a verdict for plaintiff. The judgment is therefore affirmed.

Affirmed.


text:
    Flora M. Reichert, Administratrix, Appellee, v. J. C. Carr, Executor, Appellant.
    Gen. No. 5,820.
    1. Executors and administrators, § 307

      —when decree allowing claim cannot be made a lien on real estate. A decree ordering an executor to pay over a certain amount of money in his hands as executor cannot make such sum a lien on real estate and give complainant execution therefor, when the prayer of the hill does not ask for such lien or execution.
    2. Appeal and error, § 1818

      —when decision of Supreme Court res adjudicata in subsequent litigation. Decision of Supreme Court held a bar to any subsequent litigation of the question whether a claim against an estate is barred.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed in part and reversed in part.
    Opinion filed October 17, 1913.

      O ’Donnell, Donovan & Bray and Brown, Brennan & Carthew, for appellant.
    W. E. Viner and J. W. Rausch, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On February 22, 1907, Raymond Gillette and Jennie Gillette filed a bill in equity against Hiram Plimpton and J. C. Carr, conservator of Hiram Plimpton, and against Flora M. Gillette (who is now Flora M. Reichert), administratrix of the estate of George Gillette,deceased, for a partition of real estate in Grundy county and in Iroquois county, the legal title to which stood in Hiram Plimpton, but of which it was averred that George Gillette, in his lifetime, equitably owned one-half and since the death of George Gillette, Raymond Gillette and Jennie Gillette each equitably owned one-fourth.

On March 1, 1909, Raymond Gillette filed a supplemental bill, in which he alleged the death of his co-complainant, Jennie Gillette, intestate, on March 23, 1907, leaving said Raymond Gillette her sole heir at law, and that Hiram Plimpton died testate August 30, 1907. The will was made a part of the supplemental bill and it showed that J. C. Carr was made the executor thereof. Thereafter, on February 15, 1911, Flora M. Reichert, as administratrix of the estate of George Gillette, deceased, assuming herself to be a complainant in the original and supplemental, bills, filed an amendment to said original and supplemental bills, reciting that the same was filed by leave of court, in which she alleged that during the lifetimes of Hiram Plimpton and George Gillette, they, as partners, loaned out large sums of money to divers persons, and that they loaned $3,000 to Daniel Ragan and Nicholas Ragan on May 27, 1893, evidenced by four notes of said Ragans for $750 each, payable in two, three, four and five years, respectively, after date to the order of Hiram Plimpton and George Gillette, with interest at six per cent, per annum, secured by a real estate mortgage ; that one-half of said principal and interest was due to George Gillette; that all the principal and interest thereon was paid either to Hiram Plimpton in his lifetime or to J. C. Carr, his executor, and no part was paid to George Gillette or his legal representatives, and that J. C. Carr, executor, should be required to account for one-half of the principal and interest collected thereon; and the prayer of the bill was amended so as to ask that J. C. Carr, as executor, be required to account to the executrix of the estate of George Gillette, deceased, for all money owned by George Gillette at his death, or by Hiram Plimpton and George Gillette jointly, and which came to the hands of Hiram Plimpton. These bills and amendments were answered by Carr and others.

The answer to the last amendment denied that the money secured by the Eagan mortgage was due to Hiram Plimpton and George Gillette as partners, but alleged that it was only due to them as joint owners. It alleged that Flora M. Eeichert, administratrix of the estate of George Gillette, had a complete remedy at law; it denied that said items of principal and interest were paid to Hiram Plimpton or to J. C. Carr; and it averred that an action did not accrue to Flora M. Eeichert, administratrix, to recover said items at any time within five years before she filed said amendment. The defendants who filed said answer, filed an amendment to their answer in which they set up that Hiram Plimpton died August 30, 1907, testate; that on October 7, 1907, J. C. Carr was appointed executor of the will of said Hiram Plimpton, deceased, and gave notice for the presentment of claims against the estate of Hiram Plimpton, and that said alleged claims set up in the amendment to the original' and supplemental bills concerning the said Eagan loan were not presented against the estate of Hiram Plimpton within one year after the date fixed for the presentation of such claims, and that complainants were thereby barred from recovering the same. No replication seems to have been filed to said answers to the last amendment, which alone brought the Bagan indebtedness before the court, but the parties went to trial upon the pleadings and proofs and the filing of a replication was thereby waived. There was a hearing, and a decree which granted in all respects the relief prayed. There was an appeal to the Supreme Court' from that decree. It was affirmed as to certain real estate in Grundy county, and in certain respects, at least, as to the Bagan money, and was reversed in all other respects, and was remanded to the Circuit Court for further proceedings in accordance with the views expressed in the opinion of the Supreme Court, which is found in Gilette v. Plimpton, 253 Ill. 147.

Thereafter the final order of the Supreme Court was filed in the Circuit Court and further proceedings were had therein, the real estate and the rents were disposed of as directed by the Supreme Court, and .there was a decree against Carr, as executor, for the moneys derived from the Bagan mortgage. Carr perfected an appeal to the Supreme Court for that decree. Pursuant to section 81 of the Practice Act, as amended in 1911 (J. & A. ¶ 8618), he filed a praecipe directing the insertion in the record of certain specified pages from the certificate of evidence filed upon the first appeal, and also the insertion of a certificate of evidence taken as to matters occurring at the second hearing, and appellees filed a praecipe for the insertion of certain other specified pages from said original certificate of evidence, and the record was thus made up. There was no freehold involved in this last appeal and therefore the Supreme Court transferred the cause to this court. The only parties directly interested in this appeal are Mrs. Beichert, as administratrix of the estate of George Gillette, deceased, and J. C. Carr, as executor of the estate of Hiram Plimpton, deceased, and the only question is whether the decree should be sustained in requiring Carr as executor of the Plimpton estate to pay to Mrs. Eeichert as administratrix of the George Gillette estate, one-half of the moneys collected upon the Eagan loan and in making the same a lien upon certain real estate owned by Hiram Plimpton at his death, with an execution to collect said moneys.

Appellant contends that the proof in the record before us does not show that Carr or Plimpton received the moneys upon the Eagan indebtedness, except the last payment, and he contends that the right to collect the same by George Gillette or his administratrix against Hiram Plimpton or his executor has been barred by the statute of limitations for many years, and is also barred by the failure to file a claim therefore against the estate of Hiram Plimpton within one year after the time fixed for filing such claims. Appellee argues that said contentions were all adjudicated and denied by the Supreme Court in its former decision, and that, if not expressly denied, they were presented for adjudication and were impliedly denied, and cannot be further litigated. The original decree was not in the record brought to this court by appellant. Upon examining the case, we conclude that we could not determine the full meaning and effect of the decision of the Supreme Court without having that original decree before us, and we therefore, of our own motion, ordered appellant to file for our consideration a copy of that original decree. Thereupon appellant filed a copy of the original abstract in the Supreme Court, which purports to set out in full the decree there appealed from, and we treat that as being the decree upon which the Supreme Court passed. So far as relates to said Eagan loan, said decree was substantially as follows: It found that the wife of Hiram Plimpton was a sister of George Gillette; that they came to Morris, Illinois, in 1850, and thereafter all lived as one family, together with Jennie Gillette, another sister, nntil their respective deaths; that from 1850 until George Gillette died in 1894, Hiram Plimpton and George Gillette were partners in all their business transactions and placed all their earnings in one common fund; that Plimpton took charge of the financial part of the partnership business; that from time to time they made loans of money as partners; that on May 27, 1893, as partners they loaned $3,000 to Daniel Eagan and Nicholas Eagan, evidenced by four notes of $750 each, with interest at six per cent, per annum, payable respectively two, three, four and five years after date and secured by a real estate mortgage; that at the end of the first year Daniel and Nicholas Eagan paid $180 of interest to Hiram Plimpton and George Gillette, and that thereafter the Eagans paid the interest and the principal of the said notes as they became due, either to Plimpton or to his agent, J. O. Carr, and that neither Plimpton nor anyone for him ever paid to George Gillette his one-half of said principal and interest, but that the same was, at the time of said decree, held by said Carr as executor of the last will of Hiram Plimpton, deceased, and that Hiram Plimpton died August 30,1907; that his will was admitted to probate on October 7,1907; that since about 1900 Carr was the confidential adviser of said Plimpton and from October 13, 1906, until his death, was the conservator of said Plimpton. It was decreed that Carr, as executor of the will of Hiram Plimpton, account to Eaymond Gillette for one-half of the principal collected on said $3,000 loan made by Hiram Plimpton and George Gillette, as partners, to Daniel Eagan and Nicholas Eagan on May 27, 1893, and for one-half of all interest collected on said loan from and after May 27, 1894, and pay to the complainant interest at the rate of five per cent, on the entire amount so due the complainant from April 7, 1900, less any amount said Carr may have paid as taxes ón said sum and for procuring the release of the mortgage. The cause was referred to the master to ascertain certain rents on the real estate and also to ascertain the amount of the taxes, if any, paid on said three thousand dollar loan since the principal and interest had been collected, and Carr’s reasonable charges for obtaining the release of the mortgage. It was decreed that the amount found due to the complainant on said Eagan loan should be paid by said executor within thirty days after the account stated by the master should be approved by the court. In its opinion, the Supreme Court stated that the statute of limitations and laches were pleaded by the defense. Concerning these notes the Supreme Court said: “The notes collected by Carr, as executor, were payable to Hiram Plimpton and George Gillette, and that was not a matter which it was necessary to submit to the County Court. The share of George Gillette was not collected as assets of the estate of Plimpton but was money belonging to the administratrix of Gillette. Carr, when he collected it, was bound to account to the administratrix for one-half, which she would have been entitled to recover from bim personally, in an action at law. But as the court had equitable jurisdiction on other grounds it was not improper to settle the whole matter in the same suit.” In conclusion the Supreme Court said: “The decree is affirmed so far as it establishes an equitable title in the homestead property in Morris and requires the executor to account for one-half of the money collected by J. C. Carr on the Eagan mortgage and is reversed in all other respects,” and it was remanded for other proceedings in accordance with said opinion. We have been furnished with a certified copy of said opinion as •originally filed, by which it appears that the opinion originally read, “The decree is affirmed so far as it * * * requires the executor to account for one-half of the money collected on the Eagan mortgage.” We infer that this change was made when a rehearing was asked for.

It is clear that the question whether the estate of Hiram Plimpton was liable for these moneys to the extent found in the former decree was presented to the Supreme Court for decision, and also the question whether the statute of limitations or laches was a bar thereto, and whether for any. reason the decree for one-half of the moneys collected on the Bagan loan was erroneous. These questions were fully presented to the Circuit Court on the first hearing and were determined by the decree adversely to the estate of Hiram Plimpton. If it had been the intention of the Supreme Court to reopen those questions for further consideration, then it seems to us that that portion of the decree would have been reversed, and not affirmed. We cannot conceive that by the change from the words “collected on the Eagan mortgage” to “collected by J. C. Carr on the Eagan mortgage” the court meant that if Carr, as executor or conservator or confidential friend and agent of Plimpton, collected the moneys, then the estate of Plimpton should pay one-half thereof, but that if Plimpton himself collected the moneys, then relief should be denied. Carr was cashier of a bank and the transactions took place or were con-eluded in his bank, and there was evidence in the former record, and included in the record before us, tending to show that he stated that he had in the bank on deposit to the credit of Hiram Plimpton the one-half of said moneys which belonged to George Gillette. The language of the Supreme Court may have been slightly incomplete in speaking of the notes as collected by Carr as executor, but we think it clear that it is the meaning of that opinion that the executor has the money which was collected on those notes and that no lawful defense exists thereto, and that the decree requiring it to be paid to the complainant was affirmed. The fact that that court did not discuss the grounds on which it was claimed that this matter was barred by the statute of limitations and by laches does not show that that contention was not considered and decided, nor does it tend to show that the court intended to reopen that question. By the decree so affirmed the only matter left to be considered in the court below concerning the moneys collected on the Eagan mortgage was to compute interest at six per cent, per annum on one-half of $3,000 from May 27, 1894, to April 7, 1900, and interest at five per cent, pér annum on the total of said principal and interest from April 7,1900, to the date of stating the account; and to ascertain what amount of taxes, if any, had been paid thereon by Carr and what expense he incurred in obtaining a release of the mortgage. We conclude that the decision of the Supreme Court is a bar to any subsequent litigation of the question whether because of the statute of limitations or laches or any other matter the former decree was erroneous so far as it required the executor of the estate of Hiram Plimpton to account for one-half the principal of the Eagan loan and interest thereon from May 27, 1894. The original decree directed the accounting to be to Raymond Gillette, who seems to have then been the sole heir at law of George Gillette, deceased, while the present decree directs the accounting to be to Flora M. Reichert, administratrix of the estate of George Gillette, deceased. The latter is correct, and if not exactly in conformity to the former decree, the change does not harm the estate of Hiram Plimpton, and Raymond Gillette has not assigned error upon it.

The decree now appealed from ordered that Carr as executor of the last will of Hiram Plimpton, deceased, pay Mrs. Reichert as administratrix of the estate of George Gillette, deceased, $3,093.59, out of the moneys in his hands as executor and it made that sum a lien upon certain real estate and it gave the complainants execution for said amount. The only' pleading by any complainant which sought relief concerning the moneys collected from the Ragans was the amendment filed by Mrs. Beickert to the original and supplemental bills. It prayed that Carr as executor be required to account to the administratrix of the estate of George Gillette for these moneys, but it did not ask that they be made a lien upon any real estate nor did it ask for any execution. We are not aware of any statute that would entitle appellee to a lien upon any real estate nor to an execution against the executor. Carr is only responsible here in his capacity as executor. The moneys are to be paid by him only out of moneys in his hands as executor. If the personal estate is insufficient, resort to real estate must be had through the County Court in the manner provided by the Administration Act. (J. & A. ¶¶ 49 et seq.)

So far as the decree appealed from makes the amount of the Bagan moneys therein referred to a lien upon real estate and authorizes an execution for its collection, it is reversed. In all other respects it is affirmed. Carr as executor, and Mrs. Beichert as administratrix, will each pay one-half of the costs of this appeal, each in due course of administration.

Affirmed in part and reversed m part.


author: Mr. Presiding Justice Baker

text:
    Patrick Gannon, Administrator, Appellee, v. William J. Newman, Appellant.
    Gen. No. 17,892.
    1. Master and servant, § 222

      —when laborer is negligent in not piling lagging in tiers. A digger of caissons also put lagging into place and a quantity of lagging was generally kept at each well ready to be sent down. It was usual to pile the lagging in tiers,reversing the direction in laying each tier. At the time in question no lagging was piled and it was supplied by laborers who threw it down beside the well without piling it in tiers, when a piece slid down into the well striking deceased. Held, the jury might find that the laborers carrying the lagging were negligent.
    2. Master and servant, § 251

      —when laborer above ground is not fellow-servant of caisson digger. Where a laborer negligently throws lagging into a pile so that a piece slides therefrom into the well killing an employe digging the well, their usual duties did not bring them into habitual association so that they might exercise an influence upon each other, and they are not fellow-servants.
    3. Master and servant, § 724

      —when question whether coemployes were directly co-operating is for fury. Where a laborer negligently throws lagging into a pile so that a piece slides therefrom into a well killing the digger of a caisson, the question whether the co-employes yrere directly co-operating with each other so as to be fellow-servants is a question for the jury.
    4. Appeal and error, § 1510

      —when submission of unsupported counts is harmless. That the court, instructed the jury that there could be no recovery on certain counts of the declaration and then, over objections, sent the declaration, including such counts, to the jury, is not sufficient ground for reversal.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed November 3, 1913.
    F. J. Canty, Harry M. McConnell and George W. Miller, for appellant.
    Francis O’Shaughnessy, B. J. Wellman and Matthew J. O’Brien, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to 33V, same topic and section number,

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for seven thousand dollars in favor of the administrator of the estate of Frank Giblin, recovered in an action for wrongfully causing the death of Giblin. The defendant, Newman, was engaged in sinking wells or caissons for the foundations of the new City Hall. There were twenty such wells; ten had been dug and men were engaged in digging the other ten. The wells were about six feet in diameter and were lined with lagging. The pieces of lagging were six feet long, five inches wide and three inches thick, tongued and grooved and held in place by^ iron rings placed inside of the lagging. Six feet of the well was first dug and lined with lagging, then a “rigging” was set up over the well, consisting of posts, beams and a platform with a hole in the center, through which a bucket passed. Above the platform was a power winch, around which a cable was wound to raise a bucket. On the platform was a man who, by means of the winch, raised or lowered the bucket on signal from the men in the well. He had a helper who dumped the buckets and also carried lagging. Other men carried lagging and rings to the well to be sent down when required. In the well were two diggers who also put the lagging in place. Three shifts of men worked in a well, each for eight hours. The decedent and Connolly worked from 4 p. m. to midnight. When they went to work on the day of the accident they found a section of the well ready for the lagging. On their signal lagging and rings were sent down and they put them in place. This took an hour or longer, and they then sent up the lagging tools and a piece of lagging they had used to put the lagging in place, and called for water to soften the clay which they were about to excavate, and it was sent down. The well was then fifty feet deep. Ten minutes or longer after the last thing was sent up a piece of lagging fell down into the well and struck Griblin on the head. He was taken to a hospital and there died the next day, leaving a widow and five children.

The defendant offered no evidence.

The grounds of reversal urged by appellant are that the servants charged with negligence and Griblin were fellow-servants and the court therefore should have directed a verdict for the defendant; that the court erred in giving and refusing instructions and in rulings on the admissibility of evidence; that the court erred in sending the declaration to the jury after they had been instructed that there could be no recovery on three of the counts, and that plaintiff failed to prove that Griblin’s death was due to injuries received in the accident.

We think that from the evidence the jury might properly find that generally a quantity of lagging was kept at each well ready to be sent down when called for; that it was usual to pile such lagging by laying a tier on the ground, then a tier across the first, then one lengthwise, then one across and so on, but it often happened that there was no lagging at a well when it was wanted and laborers were called by the foreman or the winehman to carry lagging to the well; that when the men in the well called for lagging on the day of the accident there was none at the well and O ’Malley, the foreman, sent two or three laborers to carry lagging; that these laborers also helped to push cars, to clean the tracks and to carry water for the diggers; that one of them helped the winehman’s helper to put lagging into the bucket to be sent down to the diggers; that forty pieces of lagging were sent down and then the diggers sent up the lagging tools and called for water; that from the time they came, the laborers, except the one who assisted to put lagging in the bucket, continued to carry lagging to the well; that a man carried six pieces on his shoulder and threw them down alongside of the well; that a pile of lagging was thus made about one and a half or two feet high; that the lagging was not laid in tiers, but the pieces on each other as they were thrown down by the laborers; that a piece of lagging slid from the pile end foremost and went down into the well and struck Griblin on the head.

We think that the jury might properly find that the laborers who carried the lagging to the side of .the well were guilty of negligence in throwing the lagging into a pile in snch manner that a piece slid from the pile into the well, and that they were not fellow-servants of Grblin under the second branch of the fellow-servant rule, because their usual duties did not bring them into habitual association so that they might exercise an influence upon each other promotive of proper caution. The laborers’ duties kept them above ground. G-iblin’s duties kept him below ground in the well he was digging.

Whether they were fellow-servants under the first branch of the rule depends on the question whether at the time of the injury they were directly co-operating with each other in the particular business in hand. We are not prepared to hold that on the evidence in the record this was a question of law for the court, hut think that it was a question of fact for the jury.

We find no reversible error in the rulings of the court on the admission of evidence or on the instructions.

The fact that the court instructed the jury that there could be no recovery on .certain counts of the declaration and then, over the objection of the defendant, sent the declaration, including such counts, to the jury, is not, in our opinion, sufficient ground for the reversal of the judgment.

We think that from the evidence the jury might properly find that the injury received by Giblin from the fall of the lagging caused his death.

We think that the record is free from reversible error, and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    E. F. Thompson, Defendant in Error, v. Alfred E. Holt, Plaintiff in Error.
    Gen. No. 18,077.
    Municipal Court of Chicago, § 19

      —when judgment for portion of demand in dispute may he entered. Where an affidavit of defense in the Municipal Court of Chicago is to a portion of plaintiff’s demand and a judgment is entered for the portion admitted to be due, under rule 17 of the Municipal Court, which contains in substance the provisions of the amended section 55 of the Practice Act of 1907, J. & A. IT 8592, such judgment does not preclude entering a judgment for the portion of demand in dispute.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 3, 1913.

      Alfred E. Holt, pro se.

    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff Thompson brought an action of contract of the fourth class in the Municipal Court against Alfred E. and Grace P. Holt and filed with his statement of claim an affidavit showing the nature of his demand and stating that the sum of $421.85 was due him from the defendants. The suit was dismissed as to Grace P. Holt and the other defendant filed an affidavit of defense in which he stated that he believed he had a good defense on the merits to $200.00 of the plaintiff’s demand and that the nature of such defense was the amount due him from the plaintiff for legal services, etc., and that there was due to him from the plaintiff $200.00 for legal services rendered by him to the plaintiff, etc. The court entered judgment for the plaintiff for $221.85, and reserved for future determination and adjudication the matter of the balance of the plaintiff’s demand claimed in his affidavit of claim, and ordered that the court retain jurisdiction of the cause and that the same proceed as to the portion of the plaintiff’s demand in dispute.

Defendant’s motion to strike the cause from the trial calendar was denied.

When the case was reached for trial the defendant objected to any further trial in the cause on the alleged ground that the cause had been disposed of by the judgment for $221.85. The defendant offered no evidence and the court directed a verdict for $211.65 and entered judgment thereon. This was the amount of the balance of $200.00 with interest thereon at five per cent, from August 5, 1910, the date of the first judgment, to September 28, 1911, the date of the second judgment.

Section 55 of the amended Practice Act of 1907 provides that:

“If the affidavit of defense is to only a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as if the suit had been brought therefor; but in such case the court may make such order as to the costs of the suit as may be equitable.” Laws of 1907, p. 456 (J. & A, ¶ 8592).

The language of the statute is plain and leaves no room for construction. Rule 17 of the Municipal Court contains in substance the provisions of amended section 55 of the Practice Act. This section as amended and rule 17 authorize a second judgment in a case where one has been rendered for the amount admitted to be due, although without such statute or rule the plaintiff’s entire claim would have been merged in the first judgment.

We think the second judgment was proper and it is affirmed.

!'Affirmed.


text:
    Walter H. Christenson, Plaintiff in Error, v. Ida M. Hanna, Individually and as Administratrix, Defendants in Error.
    Gen. No. 18,122.
    1. Replevin, § 4

      —when title deed cannot he recovered. Replevin will not lie for the unlawful taking or wrongful detention of a title deed where there is a dispute about its delivery and the controversy involves the determination of the title to the land described in the deed.
    2. Replevin, § 141

      —when nonsuit is proper. Where in replevin of a title deed the real issue is whether the deed was delivered, the court being without jurisdiction to enter a judgment for plaintiff is without jurisdiction to render a judgment on the merits for defendant and to award a writ of retorno Jiabendo, and should enter a judgment of nonsuit.
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed with judgment of nonsuit here and order for a writ of retorno Jiabendo.

    Opinion filed November 3, 1913.
    Statement by the Court. Plaintiff Christenson brought an action of replevin against her sister, Ida M.° Hanna, alleging that she wrongfully took and wrongfully detained from, him a certain deed executed and acknowledged by John Christenson (the father of the plaintiff and defendant) conveying to plaintiff a certain lot in Chicago. On her petition stating that she was the administratrix of the estate of said John Christenson, appointed September 1, 1908, and as, such administratrix on her appointment took possession of said deed and held the same until October 11, 1911, when it was taken on the writ of replevin issued in this case, the papers in the case were amended by adding Ida M. Hanna, administratrix of the estate of John Christenson as a defendant.
    The question in the case was whether or not the deed was delivered by the grantor in his lifetime to the grantee, the plaintiff contending that it was so delivered and the defendant that it was not. The trial by the court resulted in a finding that the right of possession of the deed was not in the plaintiff and assessing defendant’s damages at one cent. November 23,1911, the court entered judgment on the finding that the defendant recover from plaintiff possession of said deed and that a writ of retorno habendo issue and that defendants recover from the plaintiff one cent damages. Afterwards the judgment for damages was set aside.

      Thomas J. O’Hare, for plaintiff in error.
    M. A. Bamborough, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

While it is true that a writ of replevin will lie for the recovery of a deed where the object is to recover possession of the specific paper and not to test the right to the land which it in terms conveys, the writ will not lie for the unlawful taking or wrongful detention of a title deed where there is a dispute about its delivery and the controversy involves the determination of the title to the land described in the deed. Hooker v. Latham, 118 N. C. 179; Campbell v. Brooks, 93 Miss. 853; Flannigan v. Goggins, 71 Wis. 28; Cobbe on Replevin, sec. 79.

The real controversy here is as to title. The real issue in the case is whether the deed was delivered, and the court should have entered a judgment of non-suit. Flannigan v. Goggins, supra.

But the judgment in the case is a judgment that the defendants recover from the plaintiff the possession of the property replevied and that a writ of retorno habendo issue, etc., and this is a judgment on the merits for the defendants. Defendants contend, and we think properly, that the court was without jurisdiction to render a judgment for the plaintiff, but if it was without jurisdiction to render a judgment for the plaintiff it was also without jurisdiction to render a judgment on the merits against the plaintiff in favor of the defendants.

The judgment will be reversed and a judgment of nonsuit entered here.

Judgment reversed with judgment of nonsuit here cmd order for a writ of retorno habendo.


text:
    Ella Dolphin, Defendant in Error, v. Louis B. Davis, Plaintiff in Error.
    Gen. No. 18,148.
    1. Bailments, § 13

      —liability of bailee for conversion when article stolen from third party. Where a fur manufacturer is entrusted with a fur cape out of which he agrees to make a muff and collarette but sends the cape to a third person to do the work, and the cape is stolen from the store of such third person, held that the manufacturer was liable for conversion.
    2. Bailments, § 13

      —when bailee liable for conversion. Where the article bailed is used in a. different manner or for a longer time than was agreed by the bailor, the bailee is guilty of conversion and answerable for all damages, and even for a loss which due care could not have prevented.
    3. Trover and conversion, § 39

      —presumptive evidence of conversion. Refusal of a fur manufacturer to deliver a cape to the bailor on demand is presumptive evidence of conversion, where he falsely states his grounds for refusal to deliver.
    4. Municipal Court of Chicago, § 14

      —evidence in action for conversion. An action of tort under the Municipal Court Act, J. & A. 1Hi 3313 et seq. for the conversion of personal property is governed by the same rules of evidence as an action of trover at common law.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 3, 1913.
    Statement by the Court. The defendant Davis had a store in Chicago where he manufactured and sold fur garments. November 10, 1910, the plaintiff, Ella Dolphin, delivered to him a fur cape, out of which it was agreed he should make a muff and a collarette within the next two weeks. Defendant sent the cape to his brother, a furrier at Oak Park, to do the work he had agreed to do and November 27 the store of his brother was entered by burglars and the cape stolen. Plaintiff called on defendant for the cape several times during December, January and February, but although defendant knew that the cape had been stolen he in answer to her demands said that he had been too busy to do 'the work and did not inform her until February 26 that the cape had been stolen. He testified on the trial that the reason he did not tell plaintiff that her cape had been stolen was that the Oak Park police officers asked him to say nothing about the burglary.. Plaintiff brought an action against defendant in the Municipal Court and in her statement of claim alleged that the defendant converted to his own use said fur cape. Plaintiff had a verdict for one hundred and seventy-five dollars damages, the plaintiff remitted seventy-five dollars and had judgment for one hundred dollars and costs, to reverse which the defendant prosecutes this writ of error.
    Peter Sissman, for plaintiff in error.
    Arthur A. Basse, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

An action of tort for the conversion of personal property under the Municipal Court Act (J. & A. ¶¶ 3313 et seq.) is governed by the same rules of evidence as an action of trover at common law. The bailment was one in which the bailee was hired by the bailor to perform labor on the article bailed and was a bailment for the benefit of both parties. The rule of law is that if the article bailed is used in a different manner or for a longer time than was agreed by the bailor, the bailee is guilty of conversion and is answerable for all damages, and even for a loss which due care could not have prevented. Raynor v. Sheffler, 79 N. J. Law 340; Hall v. Corcoran, 107 Mass. 251; Towne & Co. v. Wiley, 23 Vt. 355; 3 Amer. & Eng. Encyc. of Law, 752; Edwards on Bailments, sec. 381; Addison on Torts (Wood’s Ed.) 496.

“If a person who is intrusted with the goods of another for a particular purpose put them into the hands of a third person, contrary to orders, it is a conversion. A wrongful intent is not necessary. It is enough if the owner has been deprived of his property by the act of another assuming an unauthorized dominion and control over it. ’ ’ Boldewahn v. Schmidt, 89 Wis. 444.

In the case at bar plaintiff testified that defendant said he would do the work on the furs himself. The. defendant denied that he used the words testified to by the plaintiff, but admitted that he said he would make the muff and have it ready in two weeks, and did not testify that anything was said about sending the cape to a third person to do the work. In the leading case of Laverty v. Snethen, 68 N. Y. 522, where the plaintiff delivered to the defendant an indorsed note of a third person to be negotiated and the proceeds or the note returned the next day, the defendant delivered the note to one Foote, with whom he was negotiating about buying the note, under the promise that he would get it discounted and return the avails to the defendant. Foote had the note discounted, but appropriated the avails to his own use. Church. Ch. J., said (p. 525):

“The act of permitting the note to go out of his possession and beyond his reach was an act which he had no legal right to do. It was an unlawful interference with the plaintiff’s property which resulted in loss, and that interference and disposition constituted, within the general principles referred to, a conversion, and the authorities I think sustain this conclusion, by a decided weight of adjudication. A leading case is Syeds v. Hay (4 T. R. 260), where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to the plaintiff’s orders, though the plaintiff might have had them by sending for them and paying the wharfage. Butler, J., said: ‘If one man who is intrusted with the goods of another put them into the hands of a third person, contrary to orders, it is a conversion. ’ ”

From the evidence the jury might properly find that the defendant, in violation of his agreement with the plaintiff, pnt the cape into the hands of a third person and this was a conversion.

Again, the defendant when plaintiff made a demand for her cape did not put his refusal on the ground that he had given the cape to his brother to do the required work and the cape had been stolen, but falsely stated that he had been too busy to do the work, and the refusal -to deliver the cape under such circumstances is presumptive evidence of conversion. Ingalls v. Bulkley, 15 Ill. 224; Hall v. White, 3 Carr. & P. 136, 14 E. C. L. 490.

The judgment must be affirmed.

Judgment affirmed.


text:
    The City of Chicago, Defendant in Error, v. Charles Bradley, Plaintiff in Error.
    Gen. No. 18,172.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Prosecution by the City of Chicago on a complaint filed against Charles Bradley for violation of section 2019 of the Municipal Code of Chicago. From a judgment against the defendant, defendant brings error.
    Plaintiff in error complains (1) that court erred in rendering a judgment in favor of the plaintiff and against the defendant; (2) the court erred in not dismissing the case as against the defendant; (3) the court had no jurisdiction. .

      Abstract of the Decision.

      Held that the questions presented in this case were presented in City of Chicago v. Williams, 254 Ill. 360, and on the authority of that case the judgment is affirmed.
    Charles A. Ward, for plaintiff in error.
    William Sexton and James S. McInerney, for defendant in error; Edwin J. Raber, of eonnsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Arnold Holinger, Trustee, and Lewis E. Chipman, Appellees, v. Harriet E. Dickinson et al., Appellants. Julius Stichert et al., Appellants, v. Harriet E. Dickinson et al., Appellees.
    Gen. No. 18,535.
    Gen. No. 18,513.
    1. Appeal and error, § 1197

      —questions not reviewable on appeal from a final decree. While an appeal from a final decree in equity ordinarily brings up the whole case on its merits, including interlocutory orders connected with the decree, such an appeal does not bring up a question which was definitely adjudicated and disposed .of prior to the time of making such decree.
    2. Appeal and error, § 1199

      —when error in dismissing cross-bill not reviewable on appeal from final decree. An appeal from a decree of foreclosure only, does not bring up for review a prior order dismissing a cross-hill.
    Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1912.
    Decree in case No. 18,535 affirmed. Case No. 18,513 stricken from the Docket.
    Opinion filed November 3, 1913.
    Statement by tlie Court. The original hill was filed by Holinger, trustee, and Chipman in No. 18,535, May 15,1911, against Harriet E. and Arthur W. Dickinson, Julius Stichert and others to foreclose a trust deed in the nature of a mortgage given by the Dickinsons to Holinger, trustee, to secure their principal note for one thousand seven hundred dollars and certain interest notes, payable to their own order, by them indorsed and held by complainant Chipman. The bill alleged that Julius Stichert claimed some interest in the mortgaged premises subsequent to the lien of said trust deed. June 27, 1911, Julius Stichert filed his cross-bill in the cause, alleging that he had entered into a contract with Arthur W. Dickinson for the purchase of the mortgaged premises and had made certain payments on such contract. June 28 the cause was referred to a master to take and report the proofs with his conclusions. The complainants demurred to the cross-bill, the other defendants thereto were defaulted, and July 11 the demurrer of the complainants to the cross-bill was sustained and the cross-complainant electing to stand by his cross-bill, the same was dismissed. July 18 a final decree of foreclosure and sale was entered and on the same day an appeal was prayed by' Julius Stichert and allowed to the Supreme Court, “from said final decree this day entered,” on his giving bond, etc. The appeal bond recites that complainants “on July 18 recovered a decree against Stichert and others for the foreclosure of a deed of trust in the nature of a mortgage, etc,” from which decree Stichert had prayed an appeal to the Supreme Court. The appeal was perfected, but the Supreme Court transferred the cause to this court. The clerk of that court transmitted to the clerk of this court the record, but the appellant refused to pay the advance costs demanded by the clerk and the clerk refused to docket the cause without the payment of such costs. The appellees on March 30, 1912, filed in this court a transcript of a “Short Record” of the cause and moved that the appeal be dismissed. This proceeding was docketed as case No. 18,513. The court denied the motion to dismiss the appeal and directed the clerk to file without payment of advance costs the record transmitted to him by the clerk of the Supreme Court, and the same was filed and docketed as case No. 18,535.
    G. W. Spunner and Hayden N. Bell, for appellants, Julius Stichert et al.
    Benson Landon, for appellees, Arnold Holinger et al.

      See Illinois Notes Digest, Vois. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

No question is made as to the propriety of the order made in case No. 18,513, and as no further order is necessary in that case it will be stricken from the docket.

The only error assigned on the record in case No. 18,535 is that the Superior Court erred in sustaining the demurrer of Holinger, trustee, and Chipman to the cross-bill and in dismissing the cross-bill.

The only question which we deem it necessary to consider or decide is the question whether the appeal brings before us for decision the error assigned. No appeal was taken from the order entered July 11 sustaining’ the demurrer of Holinger, trustee, and Chip-man to the cross-bill and dismissing the same, but the appeal, by the terms of the order allowing it and of the appeal bond, was from the decree of foreclosure entered July 18 on the original bill. The general rule as to what is brought up by an appeal from a final decree is that, “While an appeal from a final decree in equity ordinarily brings up the whole cause upon its merits, including interlocutory orders connected with the decree, such an appeal does not bring up a question which was definitely adjudicated and disposed of prior to the making and entering of the final decree appealed from.” 3 Cyc. 228. “An appeal from the final decree only, cannot bring up a question which had been definitely adjudicated and disposed of previous to the time of making such decree.” Walworth, Chancellor, in Mapes v. Coffin, 5 Paige (N. Y.) 296. In Siegel v. Andrews & Co., 181 Ill. 350, it was contended that the chancellor erred in dismissing the cross-bill as to defendants who had answered and had a hearing on the cross-bill and their respective answers, and it was said (p. 356): “The contention is not tenable, because appellants have not appealed from the decree dismissing the cross-bill as to defendants who had a hearing on the bill and answers. This decree was entered January 5, 1893, and the decree appealed from was entered November 13, 1897. Appeals are purely statutory, and no one can, on appeal, complain of a decree from which he has not appealed.” “The cross-bill was no part of the original proceeding, and it in no wise depended upon it.” Myers v. Manny, 63 Ill. 211.

The record is a praecipe record. It does not include the master’s report, although the record shows that one was made and filed in the cause.

We think the court properly entered the decree of foreclosure and sale in case No. 18,535, and the decree in that case will be affirmed.

Decree in case No. 18,535 affirmed. Case No. 18,513 stricken from the Docket.


text:
    William J. Murphy and John J. Murphy, Appellees, v. Traders Live Stock Exchange et al., Appellants.
    Gen. No. 19,639.
    1. Injunction, § 155

      —when improper to temporarily enjoin exchange from blacklisting member. Where a live stock exchange suspends a member on his failure to reimburse a nonmember for the conversion of hogs, it is improper to temporarily enjoin the exchange from maintaining a boycott or blacklist against the member where the injunctional order states that it does not find whether or not the defendants have been guilty of the acts enjoined and the allegations of the bill are fully answered by affidavits.
    2. Boabds on tbade and exchanges, § 18

      —how notice to appear at meeting to answer charges is construed. A notice by a live stock exchange to a member to appear at a meeting on January 3, 1912, to answer a charge of violating the rules, will be regarded as a notice to appear on such day in the year 1913 where the controversy did not begin until October, 1912.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed.
    Opinion filed November 3, 1913.
    Worth E. Caylor, for appellants.
    Litzinger, McGurn & Reid, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

The Traders Live Stock Exchange is a corporation organized not for pecuniary profit, whose members are engaged in buying live stock at the Union Stock Yards, Chicago. The complainants, William J. and John J. Murphy, were engaged in buying live stock at the Stock Yards and were members of said Exchange. October 5, 1912, an employe of complainants was driving hogs in one of the alleys at the Stock Yards, when they became mingled with hogs of Swift & Co., a corporation not a member of said Exchange. Swift & Co. claimed that they by such mingling lost four hogs. William J. Murphy made an investigation and found that his firm had one hog of Swift & Co., which was returned, but he refused to return any more hogs. Swift & Co. then made a complaint to the Exchange. The Exchange notified the Murphys that such complaint had been made and the Murphys took the position that the Exchange had nothing whatever to do with a transaction between them and Swift & Co. The board of directors of the Exchange met November 14, 1912, to consider and decide the controversy as to the hogs between Swift & Co. and the Murphys. At this meeting William J. Murphy appeared and presented evidence for his firm, and Swift & Co. also presented evidence, and the board, December 7, 1912, resolved and decided that the Murphys should pay to' Swift & Co. forty-five dollars. No objection was made by either party to the authority of the board to hear and decide the controversy. The board notified the Murphys of their decision and December 11 wrote them that unless the claim of Swift & Co. for forty-five dollars was paid within five days they would be suspended from all the rights and privileges of the Exchange. December 24, 1912, a complaint in writing was presented to the board by G. E. Hebert, stating that the Murphys had not paid but refused to pay said sum of forty-five dollars to Swift & Co. A notice was then given by the board to the Murphys to appear before the board at a meeting to be held January 3,1912, to answer the charge of violating the rules and bylaws of the Exchange. 'The year 1912 was evidently inserted in the notice by mistake for 1913, and that it was so inserted by mistake was known to the Murphys, because the controversy between them and Swift & Co. did not begin until October 5, 1912. The notice must therefore be regarded as a notice to appear January 3, 1913. The complainants did not attend the meeting and the board of directors ordered that they be suspended.

In their bill complainants set out the facts above stated and allege that the defendants have maintained a boycott or blacklist against the complainants. The bill makes the Exchange, the directors thereof and E. C. Adams defendants. The order for a temporary injunction from which this appeal is prosecuted restrains the defendants, “from in any manner intimidating or coercing or threatening any person doing or intending to do business with the said William J. Murphy and John J. Murphy, doing business as Murphy Bros. & Company, with a view to preventing said persons from buying or selling to the said William J. Murphy and John J. Murphy, or preventing or influencing such persons in their business dealings with said William J. Murphy and John J. Murphy.” The order contains the following provision:

“The court, however, does not find whether or not the above named defendants have been guilty of intimidating, coercing or threatening persons doing or intending to do business with the said William J. Murphy and John J. Murphy with a view to preventing persons from buying or selling to the said William J. Murphy and John J. Murphy, or preventing or influencing such persons in their business dealings with said William J. Murphy and John J. Murphy.”

The bill is sworn to by William J. Murphy.

The affidavits of the defendants are, we think, a full and complete answer to the allegations of the bill in relation to the acts and conduct of the defendants enjoined by the order. The court in the order states in terms that it does not find whether or not the defendants have been guilty of the acts they are restrained from committing by the order of injunction.

We think that in view of this statement of the court, and of the further fact that the allegations of the bill as to the acts enjoined by the injunction are met and fully answered by the affidavits of the defendants, that the injunction should not have been granted.

The order granting a temporary injunction is reversed.

Reversed.