text:
    Peter Gherra, Administrator, Appellant, v. Central Illinois Public Service Company, Appellee.
    1. Negligence, § 97

      —what care required of hoy 10 years of age. A boy 10 years of age is not exempted from the exercise of all care for his safety, and he must use such care as a hoy of his years, experience and knowledge would ordinarily use under similar circumstances.
    2. Electricity, § 21

      —what duty owed hy electrical company to trespasser. A hoy who, without license or permission, climbs into an apple tree near the highway, through which tree the wires of an electrical company run between poles In the highway, to get some apples, is a trespasser, and the electrical company owes him no duty except not to wilfully injure him.
    3. Electricity, § 7

      —what is proximate cause of death of child electrocuted hy wires passing through tree. The proximate cause of the death of a boy 10 years of age, who, trespassing in climbing an apple tree 2 feet from a highway, comes in contact with the worn and defective power wires of an electrical company passing through the branches, extending over the highway, is the negligence of the boy and not the dangerous wires of the company.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 19, 1918.

      Thomas Bifaker and James H. Murphy, for appellant.
    Vause, Hughes & Eager and A. M. Fitzgerald, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Peter Gherra, administrator of the estate of John Gherra, deceased, began this suit against the Central Illinois Public Service Company to recover damages sustained by himself and other next of Mn, through the death of John Gherra.

The declaration contains five counts. In the first it is averred that the defendant on May 31, 1915, operated in the City of Yirden and Yirden township, an electric light system, getting the electricity from a central plant at Kincaid; that defendant maintained certain wires on poles near the east line of a highway, south from Yirden, over which defendant transmitted electricity to a patron; that 1,000 feet south of Yirden and 2 feet east of the east line of the highway, there was an apple tree with branches extending over the highway and over and above said wires, upon which branches were growing apples, which tree and apples were attractive to children, who, by reason of their tender years, were without ability to exercise due care for their safety and would not appreciate the danger of coming in contact with said wires extending near and through the branches of the tree, and that the location of the wires through the branches of the tree was known, or would have been in the exercise of ordinary care known, to the defendant. It is further averred that John Gherra, the intestate, was an immature child of the age of 10 years, without ability to exercise due care or realize danger, and that while passing along said highway he was attracted to said apple tree by the apples thereon and in said tree came in contact with said wires charged with electricity and was thereby burned and injured, and that the injuries caused his death on June 5, 1915; and that Peter Gherra, his father, and other named parties, are the next of kin, etc.

The second count contains the further averment that the wires «were old and the insulation was worn off them, etc.

The third contains an averment that the electric light wires were attached to a loose pole, which swayed, and the wires sagged so that for over 3 months they came in contact with telephone wires which ran through the tree.

The fourth and fifth counts aver the duty of defendant to so maintain its wires that parties gathering apples from said tree would not be injured, and that John Gherra, a child of 10 years of age, while in the exercise of due care and ignorant of the dangerous condition of the wires through the tree, while gathering apples, was injured and died therefrom.

There is an amendment to each count under which the parents seek to recover for loss of services.

The defendant filed a general demurrer to the declaration and each count, which was sustained. Plaintiff abided by the declaration and judgment was rendered in favor of the defendant. Plaintiff appeals.

It is not averred in any count that the appellee was a trespasser in the place where its wires were located or that the wires were within the reach of any person on the ground under them, or that any permissive right had been given to any one or was known to have been used by any person to climb into the tree for any purpose.

The theory of the first three counts of the declaration is that under the attractive nuisance rule, an apple tree on private property near the line of a public highway, where the limbs of the tree extend over the-line of the highway, is an attractive nuisance, and that a boy of the age of 10 years, although a trespasser in climbing the tree to pick apples in the month of May, who was injured by an electric shock from wires passing through the limbs of the tree on the highway, is entitled to recover from the owner of the electric wires that caused the injury. It is not contended that appellee’s wires were not lawfully suspended over the highway. The deceased was a trespasser in climbing into the tree and coming in contact with the wires. The attractive nuisance counts assume that a boy 10 years of age has the right to go anywhere, into apple trees or other things, that his wishes may suggest, and, if injured by a dangerous appliance, recover for such injuries. It is not the rule that a boy 10 years of age is exempted from the exercise of all care for his safety. He must use such care as a boy of his years, experience and knowledge would ordinarily use under similar circumstances. These counts were defective in failing to aver that he used such care, and it is not necessary to discuss the attractive nuisance feature of these counts.

The theory of the other two counts is that appellee was guilty of negligence in having its wires uninsulated, and that any person who either rightfully or wrongfully climbed into the tree and was injured is entitled to recover. Counsel for appellant have confined their argument and citation of authorities exclusively to the attractive nuisance counts.

The averments of the remaining counts, however, do not state any fact which tends to show any right or excuse for the intestate to be in the tree. He was a trespasser, and the duty appellee owed to him was not to wilfully injure him. He was á trespasser in interfering with appellee’s wires, when he climbed into the tree without any license, permission or duty there. Having no right or excuse for being in the tree, his death must be attributed exclusively to his own fault, the averment that he was 10 years of age only having application to his exercise of such care as a boy of his age must use where he lawfully has the right to be. McAllister v. Jung, 112 Ill. App. 138. While the wire running through the tree top made the injury possible, appellee had no reason to anticipate that a person going along the road would climb into the tree, and the dangerous wire was not the proximate cause of the death. Seith v. Commonwealth Electric Co., 241 Ill. 252. There was no error in sustaining the demurrer. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    David W. Mumper, Administrator of the Estate of Anna E. Hopkins, Deceased, Appellee, v. John P. Murphy, Objector, Appellant. David W. Mumper, Administrator of the Estate of Louise M. Murphy, Deceased, Appellee, v. John P. Murphy, Objector, Appellant.
    1. Executors and administrators, § 340

      —when administrator acting for estate of testatrix and heir should pay money to himself as administrator and disburse funds. Whole the same administrator acts for both the estate of a testatrix and of her deceased heir and about eleven months after the granting of letters of administration of the estate of the testatrix, and, at a time when only one claim is disputed and has not been paid, he draws money from savings hanks where it has been drawing interest, he should not deposit it in his own account but should pay it over to himself as administrator of the estate of the heir, and then to the assignee or trustee of the estate of the heir of testatrix’s heir, simply retaining sufficient to secure the result of the particular claim.
    2. Executors and administrators, § 559

      —what principle governs in allowance of compensation to administrator. The principie upon which a court ordinarily acts in allowing an administrator compensation is to allow a reasonable compensation, keeping in view the circumstances of the particular case.
    3. Executobs and administbatobs, § 561

      —when finding as to amount of compensation to he allowed administrator may he modified. The finding of the trial court as to the amount of compensation to be allowed an administrator does not preclude a court of appeal from fixing the compensation at a less sum’ that that fixed by the trial court.
    4. Executobs and administbatobs, § 561

      —when compensation of administrator fixed at 3 per cent. The amount of compensation to be allowed an administrator was fixed at 3 per cent where there was very little work connected with the handling of the estate, the assets of which were about $35,000, consisting almost entirely of money in banks, and the administrator withdrew about $20,000 from savings banks where it was drawing interest at 3% per cent and held it for nearly a year before filing an account.
    5. Executobs and administbatobs, § 561

      —when compensation of administrator fixed at 3 per cent. Where an administrator acted as such for both the estate of a testatrix and that of an heir and paid the money to the assignee of the heir of the second estate within 15 days after he receipted to himself as administrator in the first estate and did not put the second estate to any exjTense in securing a bond, the amount of compensation to be allowed the administrator in handling the second estate was fixed at 3 per cent on the basis of an estate of about $24,000.
    6. Executobs and administbatobs, § 526

      —compensation administrator should pay attorney. Where an administrator retains an attorney he should pay him only such a reasonable compensation as reputable attorneys would contract to render service for.
    7. Executobs and administbatobs, § 526

      —right and duty of courts to exercise independent judgment in fixing attorney’s fees. Courts have some knowledge concerning the value of an attorney’s services in acting for an administrator, and a court may to some extent and should exercise an independent judgment in passing on the amount to be allowed in any particular case.
    8. Executobs and administbatobs, § 526

      —when custom as to charges of attorney employed hy administrator is not binding on courts. A custom among attorneys in a county to charge 4 per cent on the entire personal property, as a minimum, for their services, where an administrator retains an attorney, is unreasonable and is not conclusive on the courts.
    9. Executobs and administbatobs, § 526

      —when allowance for attorney's fees is excessive. An allowance to an administrator of the sum of $1,500 for the services of an attorney in handling an estate amounting to $35,000, and consisting almost entirely of money in banks, held excessive and reduced to $800, where there was little for an attorney to do.
    10. Executors and administrators, § 526

      —when allowance of attorney's fees is excessive. An allowance to an administrator of the sum of $950 for the services of an attorney in the handling of an estate consisting of about $24,000 in money, held excessive and reduced to $300, where there was little for an attorney to do.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 19, 1918.
    Statement by the Court. Anna E. Hopkins died at Quincy, Illinois, testate. The will was admitted to probate in Adams county in October, 1913, and David W. Mumper, public administrator, on his petition was appointed and qualified as administrator on the day the will was probated. The personal estate consisted of household goods, which were sold for $136.70, and something over $34,000 on deposit in three different Quincy banks. Louise M. Murphy of Los Angeles, California, a sister of the deceased, was the only heir, and the principal legatee under the will. The only other legacies under the will were $1,000 to St. Mary’s Hospital; $500 to St. Vincent’s Home; $500 to Rev. J. M. Foley, and $100 to the Eector of St. Peter’s Church.
    Louise M. Murphy, the principal legatee, died at Los Angeles, California, December 21, 1913, leaving James Murphy of Ireland as her only heir, and he assigned his title to her estate to John P. Murphy, trustee. On January 14, 1914, David W. Mumper, public administrator for Adams county, on his petition, was appointed administrator of the estate of Louise M. Murphy.
    The entire claims presented against the estate of A dp a E. Hopkins did not amount to over $100, not including funeral expenses, with the exception of a claim for $300 for a memorial window, which was allowed without objection, and a claim for $2,900, which was allowed in April, 1914, through a misunderstanding. The administrator employed one W. H. Bennett as his attorney in both estates. The heir of Louise M. Murphy and his assignee and trustee were nonresidents of Illinois, and neither they nor the administrator of Anna E. Hopkins appear to have learned of the allowance of this claim until the following November, when the heir employed other counsel, and a joint motion was entered in the Probate Court by the assignee of the heir and the administrator of the Hopkins estate to set aside the allowance of that claim. The court refused to vacate the order. An appeal was perfected to the Circuit Court, where a demurrer to the petition was sustained and judgment rendered that “appellee go hence without day.” An appeal from that judgment was perfected by the administrator to the Appellate Court, which reversed the judgment and directed the Circuit Court to vacate the order of allowance and hear the claim on its merits. St. Rose of Lima Congregation v. Hopkins’ Estate, 201 Ill. App. 316. A petition for rehearing in the Appellate Court was denied in June, 1916, but the case was not re-docketed in the Adams Circuit Court until October, 1916, and in December the claim was settled without a trial by the payment of $1,000.
    At the time of the death of Anna E. Hopkins, she had on deposit $174 in a checking account in the Bicker National Bank; $1,225.20 and $11,000 in savings accounts in the Bicker National Bank drawing interest at 3% per cent; $10,642.73 in a savings account drawing interest at 3 per cent in the Quincy National Bank, and $11,000 in the State Savings, Loan and Trust Company drawing interest at 3% per cent. On December 8,1913, the administrator drew the $1,225.20 from the Bicker National Bank and the $10,642.73 from the' Quincy National Bank. The sums of $11,000 in the Bicker National Bank and in the State Savings, Loan and Trust Company were collected August 1, 1914, with $770 interest on these deposits.
    The administrator did not make any report in the Hopkins estate until August 11, 1915. The report shows receipts from the sale of household goods, $136.70, and collected from the various banks $34,889.58, and disbursements amounting to $7,879.24, of which $700 was paid, to W. H. Bennett on November 30, 1914, on attorney’s fees, and $2,101.51 retained by the administrator for his commissions. In January, 1917, the administrator in the Hopkins estate filed his second account in which he credits himself with the payment to himself as administrator of the Murphy estate on September 2, 1915, of $20,000; on March 14, 1916, $500, and on December 14, 1916, $3,509.05, and the payment on December 13, 1916, of $800 attorney’s fees to Bennett in addition to the $700 paid him November 30, 1914.
    In January, 1917, he filed an account as administrator of the Murphy estate charging himself with the receipt of the three sums from the Hopkins estate, amounting to $24,009.05, and crediting himself with the payment to John P. Murphy, assignee of the sole heir, various sums from September 25, 1915, to March, 4, 1916, amounting to $17,500; to W. H. Bennett, attorney, $950; to himself, as commission, $1,440.54, and claiming to have $2,654.53 on hand for Murphy if no further costs are made.
    Objections were filed by Murphy, the assignee and trustee of the heir of Louise M. Murphy, to the amounts claimed by the administrator in each estate and to the sums claimed to have been paid by him as attorney’s fees. All the objections were overruled by the County Court in both estates. Appeals were perfected to the Circuit Court.
    In the Circuit Court, by agreement of counsel, the two cases were consolidated and heard together, that court reducing the commission in the Murphy estate to $720.27 and overruling the other objections. John P. Murphy has appealed to this court.
    Jesse Heylin, for appellant.
    Walter H. Bennett, for appellee.

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

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

In the Hopkins estate there was only $136.70 of household goods to he sold. The remainder of the estate was all on deposit in various Quincy banks. There was only one claim over which there was any contest. The amount claimed was $2,900, and it was settled for $1,000.

In the Murphy estate there was a claim for $3,500 presented which was never tried but was dismissed. All that the administrator did in that estate, beyond attending to the inheritance tax, was to receipt to himself for $24,000, see that he had properly reported in the Hopkins estate, and pay the money to the heir.

There is another feature of the case which should be given some weight in arriving at the amount of commission to be allowed the administrator. There was $10,000 in each of two banks drawing interest at 3yz per cent. On August 1, 1914, the administrator had these sums transferred to his account, thereby stopping them drawing interest. Section 70 of the Administration Act (J. & A. ¶ 119) requires that all claims shall be presented against an estate within one year from the granting of letters or be barred. Section 112 of that Act (J. & A. ¶ 161) requires that the administrator shall make a report of his acts and doings to the court at the first term after the expiration of one year after the date of his letters, or sooner. Letters were granted in the Hopkins estate in October, 1913. All claims except the $2,900 claim were disposed of within the year. The administrator filed no report until August, 1915, nearly a year after he should have made his report, and upwards of a year after the time for presenting claims had expired and after the statute requires that he should have filed his report. Upon his own statement he held $27,000 in his hands during all that time. It was not drawing interest and the major part of it should have been paid over to himself as administrator of Louise M. Murphy and then to the assignee and trustee of her only heir, simply retaining sufficient to secure the result of the $2,900 claim. (Reynolds v. People, 55 Ill. 328; Curts v. Brooks, 71 Ill. 128.) The deceased kept her money in a bank which allowed her interest.

The administrator, not being required to keep it invested, changed it so that it did not draw interest for the benefit of the estate, and retained it nearly a year after all, but the small proportion necessary to provide for the $2,900 claim, with the costs and expenses, should have been paid to Murphy. Section 114 of the Administration Act (J. & A. ¶ 163), which was adopted when the statute allowed two years for the presentation of claims, which is now changed to one year, provides that all moneys which any administrator may have in his possession after two years and six months from the date of his letters of administration shall bear interest and he shall be charged interest from said time at the rate of 10 per cent, unless good cause is shown.

There was evidence submitted concerning the allowance to be made to administrators in the settlement of estates. The weight of the evidence as to the allowance of commission is that 6 per cent on the personal estate is the minimum allowance in Adams county. Under the statute, 6 per cent is the maximum sum that may be allowed. In both estates there was but little to do. The statute provides that “not exceeding six per cent on the amount of the personal estate” shall be allowed administrators as compensation for their services. The principle upon which a court ordinarily acts is to allow a reasonable compensation, keeping in view the facts and circumstances of each particular case. The finding of the trial court does not preclude a court of appeal from fixing the compensation at a less sum than that fixed by the trial court. Giger v. Bishop, 231 Ill. 472, 135 Ill. App. 448; Colton v. Coffey, 187 Ill. App. 558. When the amount of work done by the administrator in the Hopkins estate is considered together with the unreasonable detention of the amount of money in his hands, and with the fact that he withdrew the bank deposits from the savings departments over a year before he filed any account, a compensation of 3 per cent would be a very liberal allowance.

In the Murphy estate, in view of the fact that the money was paid to the assignee of the heir fifteen days after he receipted to himself as administrator in the Hopkins estate and did not put the estate to any expense in securing a bond, we cannot say that the Circuit Court erred in allowing 3 per cent, although that allowance was liberal.

The Circuit Court allowed, to the administrator, credit for payment to Bennett as attorney’s fees of the modest sums of $1,500 in the Hopkins estate .and $950 in the Murphy estate. Several attorneys testified that in that county there is a rule that 4 per cent on the entire personal estate is the minimum allowance for attorney’s fees, where the administrator retains an attorney, no matter how little the service of an attorney may be required; an ex-county judge and other witnesses testified that there is no such rule. If such a rule prevails, then estates there are exploited for the benefit of attorneys and administrators. They should receive such a reasonable compensation as reputable attorneys would contract to render service for, with a person capable of contracting for the services and making a contract in a matter wherein he was interested.

There was but little for an attorney to do in either estate, although there was a contest over the St. Rose of Lima Congregation claim of $2,900. It became necessary for the heir to employ other counsel, and the evidence shows that counsel for the heir prepared the brief in the Appellate Court and the claim was finally settled without a trial for $1,000.

In the Murphy estate a claim was presented for $3,500, which does not appear to have had any foundation as it was dismissed without a trial.

Courts have some knowledge concerning the value of an attorney’s services, and a court may to some extent and should exercise an independent judgment in passing on questions concerning the amount to be allowed an attorney in any case. Giger v. Bishop, 231 Ill. 472; Colton v. Coffey, 187 Ill. App. 558, and cases cited. The evidence of the attorneys who testified against the estate in this case is that there is an unreasonable custom in that county which is not conclusive on any court. Zentner v. Kozminski, 171 Ill. App. 570. The attorney who drew the "will of Mrs. Hopkins and had acted for her in her lifetime procured the probate of the will. The public administrator then was appointed, and he employed the attorney to whom the payments were made, and who took so little interest in the estate that although he knew a claim for $2,900 had been presented and that the administrator had asked for time to consider it, it was wrongfully allowed, and neither he nor the administrator knew of the allowance for several months thereafter.

An attorney should be paid for necessary legal services performed. He does not, however, take the place of an administrator and become entitled to a commission on the entire estate.

If the assignee of the heir to the estate had not employed additional counsel, and the attorney who acted for the administrator had alone rendered all the legal services performed, the sum of $800 would be a very liberal allowance for all his legal services rendered in the Hopkins estate, and, for the services in the Murphy estate, $300 is a reasonable and ample compensation. The order of the trial court overruling the exceptions is reversed and the cause remanded with instructions to reduce the compensation of the administrator in the Hopkins estate to 3 per cent, and the attorney’s fees in the Hopkins estate to $800 and the Murphy estate to $300, the costs of this appeal to be paid by the administrator personally.

Reversed and remanded with directions.


text:
    William J. Jackson, Receiver, Appellant, v. Alice Johnson, Executrix, Appellee.
    1. Automobiles and garages, § 3

      —when giving of warning on approach of train to crossing is question for jury. In an action by a railroad receiver against the executrix of the will of the deceased owner of an automobile to recover damages for injury to one of plaintiff’s trains because of negligence of such owner in driving his automobile on the track, where there was a conflict in the evidence for plaintiff whether the whistle was blown for 80 rods before reaching the crossing and there was no evidence that the bell was not rung for that distance, defendant having offered no evidence, a question for the jury was presented.
    2. Instructions, § 134

      —when instruction is erroneous as not confining jury to belief from evidence. In an action by a railroad receiver against the executrix of the will of the deceased owner of an automobile to recover damages for injury to one of plaintiff’s trains because of negligence of .such owner in driving his automobile on the tracks at a highway intersection, an instruction that if the jury believed that the collision between the railroad train and the automobile driven by deceased was occasioned purely through and on account of an accident and not on account of negligence on his part, then regardless of other questions in the case their verdict should be in favor of defendant, was misleading and erroneous in not confining the jury to their belief from the evidence.
    3. Negligence, § 156

      —when rule that jury may consider instinct of self-preservation and presumption arising from proof of habitual exercise of due care not applicable. Where eyewitnesses have testified to facts and circumstances surrounding the accident, the rule which entitles a jury to consider the instinct of self-preservation and the presumption which may arise from proof of the habitual exercise of due care does not apply.
    4. Negligence, § 3

      —what is effect of excitement arising from imminent peril induced by own negligence on liability for. A party who, without fault, is damaged by reason of the negligence of another while such other is under excitement arising from imminent peril induced by his own negligence is entitled to recover damages from the party who was the negligent cause of the injury.
    5. Negligence, § 234

      —when instruction on evidence as to liar bility of defendant is erroneous. In an action for negligence, an instruction, that if the evidence was equally consistent with the theory that defendant was negligent ' the jury should find for defendant, was erroneous.
    Appeal from the Circuit Court of Vermilion county; the Hon. Waltbb Bbeweb, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 19, 1918.
    Rehearing denied July 2, 1918.
    Edward C. Craig, Donald B. Craig, H. M. Steely and H. M. Steely, Jr., for appellant; Homer T. Dick, of counsel.
    Edwin Winter, Acton & Acton and Rearick & Meeks, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case begun by William J. Jackson as receiver of the Chicago and Eastern Illinois Bailroad Company against Alice Johnson as executrix of the estate of Harper Daniel, deceased, to recover damages alleged to have been sustained by the derailing of a train of said railroad because of the negligence of Harper Daniel. The declaration contains several counts. One of the counts avers that on June 3, 1916, plaintiff was possessed of and operating a certain described double-track railroad from Danville to Chicago and was running over the east northbound track a passenger train; that at, to wit, 8 miles north of Danville, said railroad is crossed by an east and west highway; that defendant’s testate, Harper Daniel, was running an automobile east on said highway at, to wit, 25 miles an hour towards said railroad while a passenger train was approaching from the south, in plain view of Harper Daniel, on which the bell on the locomotive was and had been ringing for more than 80 rods as the locomotive approached the crossing and crossing whistle had been given; that the said Daniel, without slacking speed, rán the automobile onto the track in front of the locomotive and caused the locomotive and automobile to collide and thereby caused the locomotive and cars to be derailed, broken and damaged and the tracks to be torn up; that at and before the time of the accident, plaintiff and his servants in charge of the train were in the exercise of ordinary care in running said train and in approaching the crossing, and said accident and collision occurred by and through the negligence of Daniel in running his automobile at such a high rate of speed and running the same upon the track in front of the locomotive by means of the premises, etc. Other counts allege negligence of Daniel in recklessly and negligently running his automobile and in failing to look and listen, and that employees in charge of the train were ringing the bell and blowing the whistle in compliance with the statute.

A jury returned a verdict for the defendant, on which judgment was rendered and from which plaintiff prosecutes this appeal.

The evidence of appellant shows that the collision occurred about 8 miles north of Danville and a mile south of Bismark. There the tracks of said railroad run north and south and are crossed at right angles by an east and west public highway; that about 700 feet west of the intersection of the railroad and the highway a public road runs north from the east and west highway to Bismark; that there is a signal tower ón the railroad 350 feet south of the highway that crosses the railroad for use in connection with some crossover and spur tracks in that vicinity; that there was a plank crossing approximately level with the ground on either side of the railroad; that the main tracks run directly south from the highway for about 120 rods where they curve slightly to the west. The east 20 rods of the field south of the highway and west of the railroad had been sown to oats and com was planted west of the oats. The field west of the highway and north of the railroad was sown to oats up to the road to Bismark. Harper Daniel was a man over 70 years of age and somewhat hard of hearing. On June 3rd, about 2 o’clock in the afternoon, he, alone in an automobile, came south on the road from Bismark, turned onto the east and west road and ran his machine upon the railroad track in front of a passenger train and the collision resulted in the train being derailed, the tracks torn up and damage done to the extent of over $5,000. He and the engineer of the train were both killed. |

There was a crossing sign at the crossing and there was nothing to interfere with the train being seen, for about a mile south of the intersection of the highway and the railroad, by a person on the east and west road at any place from the railroad west to the road that ran to Bismark or on the south end of that road, neither was there anything on the railroad or in the fields that interfered with a clear view of a train approaching from the south for upwards of a mile. Many farmers and men working in the fields in that vicinity saw Daniel as he was approaching the crossing and testified concerning his actions. One witness going west in an automobile on the east side of the railroad stopped his machine and tried to signal to Daniel to stop, but he appeared to he looking down at his steering wheel and for some reason his attention could not he attracted. The fireman on the train saw him when the train was 400 to 500 feet from the crossing and Daniel was about 200 to 300 feet from the crossing, and as soon as he thought Daniel was not going to stop notified the engineer, who was at his station on the right-hand side of the locomotive, of the danger and he at once applied the emergency brake.

The fireman testified that the engine was equipped with an automatic bell that weighed 75 pounds and that the engineer started it ringing before they left Danville and it rang continuously up to the accident, and that the whistle was blown for crossings. Several other witnesses testified to hearing the bell ringing and several who saw the train heard the whistling but did not notice the bell ringing.

The appellant contends that the court should have instructed a verdict for it. The appellee contends that there is a conflict in the evidence as to whether the employees of the train caused either the bell to be rung or the whistle blown for 80 rods before reaching the crossing. While there is no evidence that the hell was not run for that distance, there were a number of witnesses who were watching the train and heard the whistle but did not hear the hell. While there is a preponderance of the evidence that the bell was rung for that distance, the fact that many watching the train did not notice that it was ringing inclines us to leave the question of fact to he passed upon by another jury, as the appellee did not offer any evidence and the case must be reversed for errors of law.

A number of witnesses testified to seeing Daniel running his automobile from where he turned to go' east to cross the railroad, and others saw his actions for 20 rods before he reached the track and described his actions up to the time of the collision.

The fifth instruction given the jury at the request of appellee is: “If you believe that the collision between the railroad train and the automobile driven by Harper Daniel, deceased, was occasioned purely through and on account of an accident, and not on account of negligence on his part, then regardless of all other questions in the case, your verdict should be in favor of the defendant.” This instruction makes no reference to the evidence but gives the jury free scope to act as their imagination may incline them. It was misleading and erroneous in not confining the jury to their belief from the evidence.

The eleventh instruction given at the request of appellee is: “The court instructs you that where there was a collision, as in this case, between an automobile and a railroad train, upon a highway crossing, and if there is no evidence from which the jury can determine whether the driver of the automobile was in the exercise of ordinary care, the law indulges the inference that the instinct of preservation and of the love of life was such as to prompt him to exercise ordinary care for his own safety.

“And, while this inference, if any, is not conclusive it is a matter which may be considered by the jury in connection with all the evidence and all the facts and circumstances shown in evidence in the case.”

The thirteenth is: “In determining whether the decedent, Harper Daniel, was guilty of negligence as charged, you have a right to consider, among other things, the natural instinct of self-preservation.” The rule is that: “Where eyewitnesses have testified to the facts and circumstances surrounding the accident, the rule which entitles a jury to consider the instinct of self-preservation and the presumption which may arise from proof of the habitual exercise of due care does not apply.” Collison v. Illinois Cent. R. Co., 239 Ill. 537; Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29; Illinois Cent. R. Co. v. Kief, 111 Ill. App. 354; Devine v. Chicago City Ry. Co., 188 Ill. App. 558; 8 Encyc. of Ev. 897. The giving of these instructions was reversible error.

The tenth instruction informs the jury that if they believe from the evidence that Daniel approached the crossing with reasonable care and while so doing he was suddenly confronted with grave danger, and thereupon became excited and unable to do what was required in controlling his automobile or in avoiding a collision, and if he was at all times acting as an ordinarily prudent man would act under the same circumstances; “or, if the evidence is equally consistent with the theory that he was negligent”; or, if the evidence balanced on these points, in either ease your duty is to find a verdict for the defendant.

The first part of the instruction is erroneous in not requiring the jury to find from the evidence that the excitement caused by a situation of imminent peril that will relieve a party from ordinary care must be caused by the negligence of the other party. Chicago & A. R. Co. v. Corson, 198 Ill. 102. A party, who without fault, is damaged by reason of the negligence of another while such other is under excitement arising from imminent peril induced by his own negligence is entitled to recover damages from the party who was the negligent cause of the injury. The next paragraph tells the jury that “if the evidence is equally consistent with the theory that he was negligent” they will find for the defendant. Under this paragraph of the instruction if the negligence of defendant is proved still the jury will find for the defendant. Under this instruction no matter how negligent Daniel was they will find for the defendant on that question.

For the reasons pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Eldredge

text:
    S. H. Ruvenacht, Appellee, v. German-American Bank of Gridley, Illinois, Appellant.
    1. Banks and banking—when loaning of accommodation note to bank is not void as against public policy. The act of a person in loaning his accommodation note to a bank on the statement of an officer that they had made an excessive loan to a certain man and that it was expected that the bank examiner would complain and .that in consideration of execution of the note an equal amount of the debtor’s notes would be delivered to the accommodation maker as security, was not in and of itself unlawful or contrary to public policy.
    2. Bills and notes, § 19

      —what is liability of person accommodated to maker of accommodation paper. An accommodated party is liable to the accommodating party for money expended by the latter by reason of his accommodation paper.
    3. Banks and banking—when giving of accommodation note for purpose of deceiving bank examiner is question for jury. Evidence held to present a jury question whether an accommodation note was given by a person to a bank for the purpose of deceiving the bank examiner as to the indebtedness of another, an amount of whose notes equal to the indebtedness was to be assigned to the accommodation maker as security.

      i. Banks and banking—when bank may not profit by own fraud in use of accommodation note. Where an accommodation note is not loaned to a bank for the purpose of enabling the bank to deceive the bank examiner but is used for the purpose of deceiving the hank examiner as to the debt of another, an amount of whose notes equal to the amount of the accommodation note was assigned to the accommodation maker, the bank may not profit by its own fraud.

      5. Banks and banking—when hank is estopped to assert that act of vice president in taking accommodation note was without authority. A bank is estopped to assert that the act of its vice president in making an agreement with a person for the signing of an accommodation note and the pledging with the accommodation maker of notes of a debtor of an amount equal to such note, in order to deceive the bank examiner, was without authority where the act of such officer was not repudiated by the bank and it did not return or offer to return the note to the accommodation maker, but, on the contrary, used it as collateral for its own indebtedness and received credit thereon upon payment of the note by the maker.
    6. Banks and banking—when bringing of action against officers of hank personally does not work estop-pel to sue hank. The fact that one who gave his note to a bank for accommodation and for the purpose of deceiving the bank examiner, after payment of the note after it was pledged as collateral to indebtedness of the bank to another bank, misconceived his action and brought action against officers of the bank personally, instead of against the bank, did not work an estoppel from maintaining an action against the bank, where he received nothing in the former action.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 15, 1918.
    Sterling, Livingston & Whitmore, for appellant; Sigmund Livingston, of counsel.
    Stone & Dick, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

It is claimed by appellant, the German-American Bank of Gridley, Illinois, that E. L. Coyle, its vice president and managing officer, on January 1, 1914, directed his brother, Harry B. Coyle, to inform appellee that the bank had loaned to a man by the name of Patton $7,000, which was an excessive loan, that it was expecting the bank examiner, and to request appellee to execute his note for the principal sum of $3,500 as an accommodation to the bank and thereupon the latter would deliver to appellee notes of said Patton aggregating $3,500 to hold as security. Ruvenacht executed his promissory note for $3,500 payable to his own order, indorsed it in blank and delivered it to said Coyle, who took it to the appellant bank and in return delivered to Ruvenacht certain Patton notes to the amount of $3,500.

It further appears that at this time appellant was indebted to the First National Bank of Bloomington, Illinois, in the sum of $20,000 upon a note given ostensibly by one Davis and said Coyle but really for the benefit of appellant, and that appellant used notes deposited with it from time to time as collateral to secure the payment of the notes held by the First National Bank, and that in due course of time Ruvenacht’s note of $3,500 was sent to the First National Bank as such collateral. At the maturity of Ruvenacht’s note, he was called upon by the First National Bank to pay or renew the same. The latter renewed the note and, when it matured the second time, paid it at a cost to him of about $3,850. Ruvenacht thereupon demanded of appellant that it repay him this amount and offered to return the Patton notes. Appellant refused to repay the money and Ruvenacht brought this suit to recover the same and secured judgment therefor.

It is insisted by appellant that appellee is not entitled to recover for three reasons: (1) That the agreement between Coyle or appellant and Ruvenacht was a scheme to cover up an asset of appellant which would not pass inspection, and so to deceive the bank examiner with a secret understanding that his note was an accommodation to appellant merely to take the place of the objectionable Patton paper, and was contrary to public policy and therefore void; (2) that the act of E. L. Coyle, the vice president and general manager of appellant, in entering into such agreement with Ruvenacht was ultra vires and appellant is not bound thereby; (3) at a previous term in the same court, appellee brought suit against said Coyle and Davis to recover on this same obligation.

The contention of appellant, that this suit was brought to enforce an illegal contract, is not established by a clear preponderance of the evidence. The act of Ruvenacht in loaning his accommodation note to appellant in and of itself was not unlawful or contrary to public policy. Chicago Title & Trust Co. v. Brady, 165 Mo. 197; In re Tasker’s Estate, 182 Pa. St. 122; Fisher v. Simons, 64 Fed. 311. Appellant received the full benefit of the accommodation paper. Whatever the original purpose of the note may have been, appellant subsequently used it as collateral for its own indebtedness with the First National Bank of Bloomington, and, when Ruvenacht paid the note, appellant received credit for the amount on its note of $20,000 held by the First National Bank. The accommodated party is always liable to the accommodating party for money expended by the latter by reason of his accommodation paper.

Appellant was not insolvent and no rights of creditors had intervened. Whether this note was executed by appellee with his consent that it should be used by appellant for the purpose of deceiving the bank examiner was a question of fact to be determined from all the evidence and was squarely submitted to the jury by appellant’s fourth given instruction. The jury, by its verdict, found adversely to such contention. Under such circumstances, even though the note was in fact used by appellant for deceiving the bank examiner, there is no rule of law which will permit appellant to thus profit by its own fraud. First Nat. Bank of Storm Lake v. Felt, 100 Iowa 680; Woodbury v. Glick, 151 Iowa 648; In re Tasker’s Estate, supra; Fisher v. Simons, supra; Chicago Title & Trust Co. v. Brady, supra.

The defense of ultra vires cannot be sustained. Appellant never repudiated the act of its vice president in obtaining the note from appellee, neither did it return nor offer to return appellee’s note to him, but on the contrary negotiated the note with the First National Bank of Bloomington and received credit for the full amount thereof, and is estopped from now asserting that Coyle acted without its authority. Carr v. National Bank & Loan Co., 167 N. Y. 375, 43 N. Y. App. Div. 10, 189 U. S. 426; Hawkins v. Fourth Nat. Bank, 150 Ind. 117; Boyertown Nat. Bank v. Fridenberg, 206 Pa. 243; Cox v. Robinson, 82 Fed. 277; Roe v. Bank of Versailles, 167 Mo. 406; Willoughby v. Fidelity & Deposit Co. of Maryland, 16 Okla. 546, 205 U. S. 537; Citizens’ Bank & Trust Co. v. Thornton, 174 Fed. 752. Neither does the fact that appellee, in a former suit, misconceived his action and brought suit against Davis and. Coyle, personally, instead, of against appellant, estop him from maintaining this action against appellant. He recovered nothing in the former suit and it is not a bar to this action. There is no error in the record and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Charles Fred White et al., Appellants, v. George Pasfield, Jr., et al., Appellees.
    1. Civil bights, § 3

      —when bill to enjoin exclusion of persons of negro blood from use of swimming pool and pavilion is defective. A bill to enjoin, the trustees of a park and the lessees of a public pavilion and swimming pool therein from excluding complainants and other persons of negro blood from the use of the swimming pool and pavilion is defective where it contains no allegation that complainants were deprived of the bathing facilities on account of their color.
    2. Equity, § 32

      —when will not entertain jurisdiction. A court of equity has no jurisdiction and will not interfere in a matter concerning merely personal rights where no property rights or inter-tots are involved. A party complaining of a violation of such rights must pursue his remedy at law, either in an action for damages or a criminal prosecution or by other appropriate action.
    3. Civil eights, § 2

      —right of individual as to freedom from restrictions in business transactions. Ordinarily, an individual has the utmost freedom from restrictions in his business transactions and will not be held to be controlled therein, unless such intention is clearly expressed in some legislative enactment.
    4. Civil bights, § 3

      —what is proper remedy for exclusion from public bathing pool on account of color. The Civil Rights Act, secs. 1, 2 (J. & A. ¶¶ 3531, 3532), giving the right to all persons to enjoy equally of the accommodation of inns, restaurants, conveyances and places of public accommodation and amusement, without discrimination on account of race or color, and providing for a penalty to be paid to the person discriminated against, and making the violation of the act an offense punishable criminally as a misdemeanor, provides a civil and criminal remedy for its violation, and where one is discriminated against on account of his color in the use of a public bathing pool and pavilion, he should seek redress in the manner designated by the statute and not in equity by injunction.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Ceeighton, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 15, 1918.
    B. G. Clanton, for appellants.

      B.L. Catron, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Charles Fred White and four other complainants filed their second amended hill in chancery in the Circuit Court of Sangamon county, making George Pas-field, Jr., and the other trustees of the Pleasure Driveway and Park District of Springfield, Illinois, and E. D. McNeil and James O. Sylvia parties defendant. It is averred in the bill that the complainants are citizens and taxpayers of the City of Springfield and of said park district; that said park district was organized under the laws of the State and that the trustees have control and custody of the public parks and pleasure driveways in said district with power to levy and collect taxes therefor; that as such citizens and taxpayers aforesaid, they are entitled to the proper and full enjoyment of all the facilities and public conveniences and privileges of the public parks, which are provided and maintained by public taxation and which are common to the taxpayers thereof; that said defendants McNeil and Sylvia are the lessees of the public pavilion and bathing pool in Bunn Park in said park district; that said complainants and several others of the taxpayers of negro blood had been precluded from the use of the public bathing pool, which has been constructed and maintained there from the public funds raised by public taxation, although they offered to pay the required fee therefor; that said trustees claim to have no control over the situation but that said lessees, McNeil and Sylvia, are in control of the privileges of said public bathing beach for the current season. The bill prays that an injunction may issue to restrain and enjoin all the defendants from further interfering with the rights of complainants to bathe in the public bathing pool at Bunn Park and from interfering with the peaceful use by the complainants of the public pavilion at said public bathing pool, which is used for a dressing room for the public, and to restrain and enjoin the trustees from leasing or alienating the property at the said Bunn Park in such a way as to deprive complainants of their lawful rights to use the same.

A demurrer was filed to the bill and sustained in the court below whereupon, the complainants abiding by their bill, it was dismissed for want of equity. There is no direct averment that complainants were deprived of the bathing facilities of the park on account of their color, and, for aught that appears in the bill, other reasons may have existed why these particular complainants were denied the privileges mentioned, and the bill was defective for this reason.

However, a court of equity has no jurisdiction and will not interfere in a matter concerning merely personal rights where no property rights or interests are involved. A party complaining of the violation of such rights must pursue his remedy at law, either in an action for damages or a criminal prosecution or by other appropriate action. McNeil and Sylvia were the lessees of the bathing privileges of the park and had a right to charge a fee to those who desired to use them. Ordinarily, an individual has the utmost freedom from restrictions in his business transactions and will not be held to be controlled therein unless such intention is clearly expressed in some legislative enactment. Cecil v. Green, 161 Ill. 265. It is contended by complainants, however, that the defendants have violated the provisions of the act entitled “An Act to protect all citizens in their civil and legal rights and fixing a penalty for violation of the same,” in force July 1, 1885, and as amended in 1911. Sections 1 and 2 of this Act (J. & A. ¶¶ 3531, 3532) are as follows:

“Section 1. That all persons within the jurisdiction of said State of Illinois shall be entitled to the full and equal enjoyment of the accommodation, advantages, facilities and privileges of inns, restaurants, eating houses, hotels, soda fountains, saloons, barber shops, bath rooms, theaters, skating rinks, concert, cafes, bicycles [bicycle] rinks, elevators, ice cream parlors or rooms, railroads, omnibuses, stages, street cars, boats, funeral hearses and public conveyances' on land and water, and all other places of public accommodation and amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens; nor shall there be any discrimination on account of race or color in the price to be charged and paid for lots or graves in any cemetery or place for burying the dead, but the price to be charged and paid for lots in any cemetery or place for burying the dead shall be applicable alike to all citizens of every race and color.
“Section 2. That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay a sum not less than twenty-five (25) dollars nor more than five hundred (500) dollars to the persqn aggrieved thereby, to be recovered in any court of competent jurisdiction, in the county where said offense was committed; and shall also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not to exceed five hundred (500) dollars, or shall be imprisoned not more than one year, or both: And, provided, further, that a judgment in favor of the party aggrieved, or punishment upon an indictment, shall be a bar to either prosecution respectively.”

It is apparent that the act itself provides a civil and a criminal remedy for the violation thereof. The party aggrieved may also maintain his action on the case to recover the penalty prescribed. Baylies v. Curry, 128 Ill. 287. The action of mandamus may also be resorted to in proper cases. People v. Board of Education, 127 Ill. 613; People v. Mayor and Common Council of Alton, 179 Ill. 615; 209 Ill. 461.

The personal rights of complainants which they claim were violated were such as were given to them by statute, which also provides a remedy for such violation, and they should seek redress in the manner prescribed by the statute and not in a court of equity, The ¡judgment of the Circuit Court is affirmed.

Affirmed.


text:
    A. T. Short, Plaintiff in Error, v. Estate of Andrew J. Jacobus, Deceased, Defendant in Error.
    1. Limitation of actions, § 46

      —what is not fraudulent concealment of action. The mere silence of a person liable is not a fraudulent concealment of a cause of action within sec. 22, ch. 83, Rev. St. (J. & A. ¶ 7217), providing that if “a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards,” and there must be some trick or contrivance or affirmative act intended to exclude suspicion and prevent inquiry.
    2. Limitation of actions, § 46

      —what is not fraudulent concealment of cause of action. There is no fraudulent concealment of a cause of action for damages for setting fire to a person’s own barn for the purpose of communicating to the barn of another and destroying it because of the presence of a stallion therein, where the guilty person had threatened to destroy the barn in which the stallion was, and after the fire, when examined by a detective, simply denied Ms guilt, although the stepson of such person, after the death of the latter, disclosed the fact that deceased had told him that he had burned the barn and had asked him to say nothing about it.
    Error to the Circuit Court of Fulton county; the Hon. Habby M. Waggoner, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed July 15, 1918.
    W. S. Jewell, Cameron & Cameron and Alphon L. Anderson, for plaintiff in error.
    Chiperfield & Chiperfield, for defendant in error.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Andrew J. Jacobus in his lifetime resided in the City of Farmington, Fulton county, Illinois, and died testate March 8, 1914. On the lot on which he resided was a bam. On the lot immediately adjoining was another bam owned by plaintiff in error. In the latter bam the Farmington Horse Company, a partnership, consisting of A. T. Short (plaintiff in error), David Nappin, J. B. Weaver, L. A. Thompson and J. S. Ab-bit, kept a Shire stallion valued at $1,800. Jacobus became very much incensed on account of the keeping of this horse on the premises adjoining his residence and petitioned the City Council of Farmington to proMbit the same as a nuisance. The City Council, however, refused to act in the matter and there is evidence that Jacobus threatened to bum the bam in order to get rid of the horse. Between 8 and 9 o’clock on the evening of August 15, 1904, the barn on the lot owned by Jacobus caught fire which was communicated to the barn owned by plaintiff in error and destroyed the same together with the stallion therein. Shortly after the fire, plaintiff in error and the Farmington Horse Company employed the Pinkerton Detective Agency to investigate the cause of the fire. A detective was sent to Farmington and had a conference with plaintiff in error, Abbit and Weaver and their attorney, who told him that they suspected Jacobus of having set the bam on fire. The detective spent 7 or 8 days in investigating the matter and examined some 75 or 80 persons and was fully informed of the petition which Jacobus had sent to the City Council and of his subsequent threats- to bum the barn. He interviewed Jacobus himself. He told Jacobus he was a detective working for the Pinkerton Detective Agency and was in Farmington to investigate the cause of the fire and asked Jacobus to come over to his room, as he wanted to talk to him about the fire. Jacobus went to the detective’s room and there were present plaintiff in error and several of the partners of the Farmington Horse Company. This interview lasted about 20 minutes and the detective told Jacobus that all the circumstances pointed to him. as being the one who set the bam on fire and asked him to make a confession. Jacobus said: “I didn’t do it. I am sorry that people suspect me.” The detective made a report to the Detective Agency of all the facts coming to his knowledge through his investigation and the latter sent a copy of his report to the plaintiff in error and to the Farmington Horse Company. The detective testified that he became satisfied that Jacobus was guilty of burning the bam; that the concensus of opinion of the residents of Farmington was to that effect, and that he so advised plaintiff in error and the Farmington Horse Company.

No action was brought against Jacobus either civil or criminal during his lifetime, but nearly 10 years later, on July 15,1914, plaintiff in error filed his claim ■against the estate of Jacobus for the value of the barn and interest thereon from the date of the fire, making a total of $748.96. The claim was heard in the County Court and disallowed and an appeal was taken to the Circuit Court where it was heard before the court without a jury and again disallowed. To reverse the judgment of the Circuit Court, this appeal is prosecuted.

It is apparent that the claim is barred by the statute of limitations unless it is saved by virtue of section 22, ch. 83, Rev. St. (J. & A. ¶ 7217), which is as follows: “If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.”

It is claimed that the following facts appearing in the evidence show that Jacobus fraudulently concealed the cause of action, viz.: (1) Jacobus denied that he caused the bam to burn; (2) the witness Taber, a stepson of Jacobus, testified that the latter told him that he had burned the bam and asked him to say nothing about it and that Taber did not disclose these facts to plaintiff in error until after the death of Jacobus.

It is undisputed that, within a few days after the fire, plaintiff in error had knowledge of all the facts which tended to support the theory that Jacobus had burned the barn, except an actual confession by Jacobus himself. There is no conflict in the authorities upon the rule of law that the mere silence of a.person liable is not a fraudulent concealment of a cause of actioii within the meaning of the statute. Keithley v. Mutual Life Ins. Co., 271 Ill. 584; Lancaster v. Springer, 239 Ill. 472; Fortune v. English, 226 Ill. 262; Wood v. Williams, 142 Ill. 269. There must be some trick or contrivance or affirmative act intended to exclude suspicion and prevent inquiry. Keithley v. Mutual Life Ins. Co., supra. The statute of Indiana is substantially the same as section 22 of our Statute of Limitations. Keithley v. Mutual Life Ins. Co., supra. In the case of Jackson v. Buchanan, 59 Ind. 390, it was held: “The concealment of the fact that a person is liable to an action, to prevent the running of the statute of limitations, * * * must be of a positive and affirmative character, calculated to prevent the discovery of the liability, as by hiding the fact, or avoiding inquiry concerning its existence. * * * To deny a fact, or procure another to deny it, is not a positive or an affirmative act; it is a negation. That the guilty parties should deny the act averred in the complaint is not calculated to conceal the fact, but rather to awaken the attention of the aggrieved party to its existence, and put him upon inquiry as to its. truth; nor does it tend to avoid inquiry concerning it, but rather to invite it.”

It was held in Proctor v. Wells Bros. Co. of New York, 181 Ill. App. 468: “Concealment of identity of a party liable cannot be deemed the same as concealment of the cause of action.”

The facts in this case do not constitute in law the fraudulent concealment of a cause of action contemplated by the statute, and the judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Waggoner took no part in the decision of this case.


text:
    The People of the State of Illinois ex rel. Imogene Elbert, Appellee, v. Vernon Elbert, Appellant.
    1. Appeal and error, § 9

      —when writ of error lies. A writ of error lies at common law for the review of final judgments in all cases involving rights or personal liberty, where no right of appeal is provided for by statute.
    2. Appeal and error, § 21

      —when writ of error and not appeal lies. Writ of error and not appeal is the proper procedure for the review of an order committing a husband to jail for neglect to pay an amount awarded under the Act of June 24, 1915 [Callaghan’s 1916 St. Supp. ¶ 3433(1) et seq.], relating to the punishment, as a criminal offense, for the abandonment of a wife or child in destitute circumstances, and the rendition of a temporary order before trial for the support of the wife or child, or both, pendente lite, and authorizing the punishment of a violation of such order as for a contempt of court, since such proceeding by contempt is criminal in its nature, involving the personal liberty of the husband, and the statute makes no provision for an appeal from the order.
    Appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the October term, 1917.
    Appeal dismissed.
    Opinion filed July 15, 1918.
    Rehearing denied October 2, 1918.
    Barry & Morrissey, for appellant.
    Miles K. Young and W. B. Leach, for appellee; Sigmund Livingston, of counsel.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On April 12, 1917, an information containing two counts was filed in the County Court of McLean county by the State’s Attorney, charging appellant in the first count with neglecting and refusing to provide for the support and maintenance of his wife without reasonable cause, and in the second count with neglecting and refusing to provide for the support and maintenance of his minor child without lawful excuse. The offenses charged are those created by the act approved June 24, 1915, in force July 1, 1915, entitled “An Act making it a misdemeanor for any person to neglect or refuse, without reasonable cause, to provide, for the support or maintenance of his wife, said wife being in destitute or in necessitous circumstances, or, without lawful excuse, to desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of eighteen years in destitute or necessitous circumstances, to provide punishment for violation thereof and to provide for suspension of sentence and release upon probation in such cases.” [Callaghan’s 1916 St. Supp. ¶ 3433(1) et seq.] The act makes the crime a misdemeanor and provides a punishment of a fine not to exceed $600, or imprisonment in the county jail, house of correction or workhouse, not to exceed one year, or by both such fine and imprisonment. Section 3 of the Act [Callaghan’s 1916 St. Supp. ¶ 3433(3)] is as follows: “At any time before the trial, upon motion of the complainant and upon notice to the defendant, the court at any time or a judge thereof in vacation, may enter such temporary order as may seem just, providing for the support or maintenance of the wife or child or children of the defendant, or both, pendente lite, and may for violation of such order punish the offender as for a contempt of court.” No provision is made in the act for any appeal from any order which the court might enter by virtue of section 3.

On May 11, 1917, the County Court entered an order upon a motion for the support of the wife and child, pendente lite, requiring appellant to pay $35 per month to his wife for her support and the support of their child. On July 21, 1917, a citation was issued ordering appellant to show cause why he should not be punished for contempt of court for failure to comply with said order. Appellant answered the petition for citation, and, upon a hearing thereof, the court found that there remained unpaid the sum of $72.50, and ordered that defendant should stand committed to the county jail for 30 days, or until the order of the court was complied with, and that he pay the costs of these proceedings. From this order appellant has prosecuted this appeal.

At the time of appellant’s marriage with his wife, he was living on a farm, owned by his father, consisting of about 500 acres of land. He and his father had an agreement whereby they farmed the land together and in some manner, not disclosed, shared in the profits thereof. The evidence shows, however, that appellant had authority to and did draw checks on his •father’s account for whatever money he needed, and this arrangement continued after the marriage and at least up to the time of the desertion. • About a year after the marriage, the child in question was born. The wife was very sick and the child became sick and had to be taken to a sanitarium. Appellant abandoned his wife and child when the latter was 6 weeks old, for the reason that he was dissatisfied with his wife because she was unable to do the work required on the farm. His defense to the citation was that after he left his wife he made arrangement with his father whereby he worked for his father as a farm hand at $28 per month; that he had been sick and had been unable to pay the amount ordered on account of his expenses. The court was justified under the proofs in adjudging appellant in contempt.

The appeal, however, in this case must be dismissed. The misdemeanor defined by the act did not exist at common law but is purely statutory. The proceeding by contempt under section 3 of the Act is also purely statutory and criminal in its nature, involving the personal liberty of appellant. The judgment appealed from was an order committing appellant to jail, and not an order compelling appellant to pay the money within a fixed time. A writ of error lies at. common law for the review of final judgments in all cases involving rights or personal liberty, where no right of appeal is provided for by statute. Loomis v. Hodson, 224 Ill. 147; Hart Bros. v. West Chicago Park Com’rs, 186 Ill. 464. In the case of Haines v. People, 97 Ill. 161, the order of commitment was very similar to the one entered in the case at bar. There the question was whether an appeal or writ of error was the proper procedure for thé review of such an order and it was held: “From this review of the authorities it is clear that a writ of error lies in this State from either this court or the Appellate Court to all inferior courts of record, for the purpose of reviewing their final determinations in all cases involving property rights or personal liberty, where no appeal is given from such inferior court of record to some intermediate court or to this court. And furthermore, that this right exists independently of any statutory or constitutional provisions, by force of the common law, in all cases in which the jurisdiction of such inferior court is exercised according to the course of the common law. * * * We are aware of no statutory provision which authorized an appeal to the Circuit Court from the order of the Probate Court committing the plaintiff in error for the alleged contempt, and it is clearly a final determination of that court in a criminal proceeding directly affecting his liberty, and unless a writ of error lies to the Probate Court in such a case, he would be wholly remediless, however much error may have intervened.” In the case of Randolph v. People, 130 Ill. 533, the Haines case, supra, is approved and the distinction is made between a simple order committing a party to jail and one in which he is ordered to pay a certain amount of money within a certain time, and in default of his doing so that he be committed to jail.

An appeal will not lie from the order entered in this case and it is therefore dismissed at the costs of appellant.

Appeal dismissed.