author: Mb. Justice Clark

text:
    Mary Ann Enright, Appellee, v. National Council Knights and Ladies of Security, Appellant.
    Gen. No. 15,508.
    1. Insurance—effect of failure to answer question propounded 6y application. If an applicant for insurance does not answer a question propounded to him, the courts will not supply an answer.
    2. Insurance—when answers contained in application constitute representations and not warranties. Held, that the answers given by the insured in his application to questions propounded therein, were, under the authority of Minnesota Mutual Life Insurance Co. v. Link, 230 Ill. 273, representations and not warranties.
    3. Triai—-when remarles of counsel will not reverse. Remarks . of counsel, even though improper, will not reverse unless in the opinion of the court they contributed materially to the result reached by the jury.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. W. N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.
    Statement by the Court. Suit was brought upon a beneficiary certificate issued by the appellant to Thomas J. Enright, for $3,000, the certificate providing that if the member should die within twelve months and more than six after its issuance, the Society should be required to pay but 70 per cent, of the amount of the certificate. The certificate was issued in August, 1907, and Enright died in March, 1908. The certificate had the usual recital making the application for membership and the report of the medical examiner part of the contract, and further provided that “each and every part thereof shall be held to be a strict warranty and to form the only basis of the liability of the order to the member or his beneficiaries.” The certificate further provided that “if the application and medical examination shall not be true in each and every part thereof, then this beneficiary certificate shall as to said member, or his beneficiaries, be absolutely null and void.”
    The application form, which appears to have been made out by the medical examiner, and to have been signed by Thomas J. Enright, purports to give answers to many questions regarding the health of the applicant and of his parents, brothers, sisters and other relatives. Under the words “Family History” the father’s age is placed at fifty-five years and his health said to be good; the mother’s at fifty-eight years, and health good; the ages of two brothers are placed respectively at thirty-six and twenty-six, and their health stated to be good; and the ages of two sisters at twenty-one and twenty-seven, and their health is also stated to be good.
    It was shown at the trial that Thomas J. Enright, to whom the certificate was issued, died of the disease commonly known as consumption, of four months ’ duration, and that a contributing cause of the death was' a disease of a valve of the heart. It further appeared that Oliver Enright, a brother of Thomas J., had died about four years before the issuance of the certificate, of what is commonly known as acute consumption, the duration of which was four months and fifteen days, and that a contributory cause or complication was disponea, which was of fifteen days’ duration; also that a first cousin of Thomas J. Enright died, less than three years before the application, of acute pulmonary tuberculosis and pneumonia.
    Question No. 19 in the application reads, “Brother dead?”, against which no answer was placed.
    Question No. 21 involves several queries: “(a) Have either of your parents, or any of your uncles, aunts, brothers or sisters or other blood relatives been afflicted with consumption, scrofula, cancer, insanity, epilepsy, gout, rheumatism or any other hereditary disease? ’’, the answer to which was ‘1 No.” “(b) Has any member of your household either died during the last six months, or suffered from any chronic cough or lung disease? If so, give particulars.” Answer, “No.” “(c) Have you nursed a consumptive?” Answer, “No.” “(d) Which of your parents do you most resemble ? ’ ’ Answer, ‘1 Father. ’ ’
    Instructions to the jury were asked by the defendant, and given. No instructions were asked on the part of the plaintiff. The jury found a verdict of 70 per cent, of the amount of the certificate, with interest, the member having died more than six months and less than twelve months after the delivery of the certificate.
    A. W. Fulton, for appellant.
    Frank F. Aring, for appellee.
   Mb. Justice Clark

delivered the opinion of the court.

We are asked to reverse this case because, as it is claimed by the appellant, untruthful answers were made in the application. No answer appeared to the question, “Brother dead?”, but it is urged by the appellant that we should treat this fact as though the answer were “No.” We cannot agree with this contention. We think there is no more reason for inserting this word than the word “Yes.” Globe Mutual Life Insurance Co. v. Meyer, 118 Ill. App. 155.

It is claimed by the appellant that answers to all of the questions in the application constituted a warranty on the part of the assured. The certificate in this case was similar to that in the case of Minnesota Mutual Life Insurance Co. v. Link, 230 Ill. 273. On the authority of the case last cited, we hold that the statements in the case before us were representations and not warranties.

It will be noted that the parents of the deceased were living at the time of the issuance of the policy, one being fifty-five and the other fifty-eight years of age, and there appears in the record no testimony tending to disclose that they were not in good health. The representation of the member was that neither his parents nor other blood relatives had been afflicted with consumption, scrofula, cancer, insanity, epilepsy, gout, rheumatism or any other hereditary disease. The evidence disclosed that a brother had died of acute miliary tuberculosis, but it further appeared that the duration of this disease was four months and fifteen days, and that there was another contributing cause of his death. The short duration of his illness would, it seems to us, indicate that the disease of consumption was not hereditary in him, especially in view of the fact that both of the parents were living and upwards of fifty-five years of age, but rather that the disease was acquired from causes against exposure to which we are so constantly warned by health authorities. A first cousin also was shown to have died from pulmonary tuberculosis and pneumonia, but her illness also was of but four months’ duration; and this does not indicate to us that the disease was hereditary, and that therefore the answer to the question was false. Such being our view of the matter, there is no occasion to discuss the testimony with reference to the manner in which the statement was prepared by the doctor who made the examination, and signed by the member, except to say that it apparently was hurriedly prepared, and it was not claimed by the doctor that he read it to Enright before the latter affixed his signature, or that Enright read it.

Complaint is made of the closing argument to the jury by appellee’s attorney. We have carefully read the abstract, and it does not disclose that any objection was made that was not sustained by the court, except as shown by the following:

“Mb. Abing: There is the contract, three thousand dollars in big numbers. Down at the bottom here seventy per cent., in very fine print, where you have got to put your specs on to see it, some of you old gentlemen may, it is right here. I don’t see a word about it—
“Me. Fulton: I object to that, to these remarks, and would like to have a ruling on it, the size of the print—
“The Coubt: I do not see any objection to commenting on the size of the print.
“Mb. Fulton: Tes, he is drawing the inference here that it is purposely put in fine print while the other is in large print. That has been held to be improper.
“The Coubt: I don’t see why a man can’t comment on the size of the print as well as on the size of the paper.
“Mb. Fulton: It is the inference he is drawing that I take exception to.
“The Coubt: I am not ruling on the inference. I am ruling on what he said.
“Me. Fulton: We except to the ruling of the court.”

We see no reason for reversing the judgment because of this occurrence. Even if the remark was improper, which we do not hold, it was not of such a character, in our opinion, that it contributed materially, if at all, to the result reached by the jury. In the case of the People v. McCann, 247 Ill. 130, the Supreme Court held, as it had in substance in many previous cases, that although improper remarks and improper conduct of attorneys in their argument to the jury are to be condemned in every case, they will not be held to be ground for reversal except where the evidence is such that the court is of the opinion they contributed to produce the verdict.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Woman’s Temperance Building Association v. Mutual Reserve Contract Company. Mutual Reserve Contract Company, for use, etc., Appellee, v. Lemuel C. Willard et al., Executors, Appellants.
    Gen. No. 15,995.
    This case is controlled by the decision in Woman’s Temperance Building Association v. Devore, 160 Ill. App. 153.
    Attachment. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.
    Rehearing denied May 2, 1911.
    Charles R. Whitman, for appellant; Goodrich, Vincent & Bradley, of counsel.
    Edwin Terwilliger, Jr., for appellee; Pringle, Northup & Terwilliger, of counsel.
   Mr. Justice Clark

delivered the opinion of - the court.

This case presents for our consideration practically the same points as were raised in the case of Woman’s Temperance Building Association v. Anna Evans Devore, executrix, etc., No. 15380, 160 Ill. App. 153, and might properly have been disposed of at the same time. As stated by the appellants in the brief, the pleas and answers were identical in this case with those in the case last referred to.

The case now before ns was submitted upon briefs with case No. 15996, in which Willis J. Wells was appellant, one brief and argument being filed for both cases.

In addition to the points made in case No. 15380 by the appellee, appellant here urges that the judgment against the Mutual Reserve Contract Company was void because there was no proper service of the summons. The court below ruled against the appellant on this contention and, we think, correctly.

For reasons set forth in the opinion filed in case No. 15380, above referred to, the judgment in the present case should, in our opinion, be affirmed.

Affirmed.


text:
    Woman’s Temperance Building Association v. Mutual Reserve Contract Company. Mutual Reserve Contract Company, for use, etc., Appellee, v. Willis J. Wells, Appellant.
    Gen. No. 15,996.
    This case is controlled by the decision in Mutual Reserve Contract Company v. Willard, ante, p. 370.
    Attachment. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.
    Rehearing denied May 2, 1911.
    Charles R. Whitman, for appellant; Goodrich, Vincent & Bradley, of counsel.

      Edwin Terwilliger, Jr., for appellee; Pringle, Northup & Terwilliger, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This case was taken on the same briefs and abstracts as No. 15995, in the appeal of Lemuel C. Willard and others, as executors, etc. (ante, p. 370), and for the reasons set forth in the opinion filed this day in that case, the judgment should be affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Standard Automobile Supply Company, Defendant in Error, v. Marshall Field & Company, Plaintiff in Error.
    Gen. No. 15,596.

      Sales—how rescission must 6e made. A contract of sale cannot be rescinded in part. Partial rescission, however, becomes effective as a modification of the original contract if such partial rescission is accepted by the vendor.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    Statement by the Court. November 13, 1908, defendant sold to plaintiff four fur coats at the price of $160, less a discount of two per cent _for cash; the coats were delivered and the purchase price paid. A few days later plaintiff returned two of the coats, claiming that they were torn and defective, and was given a receipt therefor by the defendant. December 1 defendant wrote plaintiff as follows:
    “Gentlemen: We hold a bill of yours dated November 20th, calling for 2 Fur coats #1975, we have no record of receiving these goods, will kindly ask you to tell us the exact date returned and whose receipt you hold.
    “Trusting you will give us this information at your earliest convenience to enable us to trace and render the credit necessary, we are.”
    Plaintiff by letter of December 4 furnished the defendant the information requested. December 17 defendant returned the coats to plaintiff and wrote him that it could not accept them for credit. The coats were again sent to plaintiff, who refused to receive them, and January 11, 1908, defendant wrote plaintiff that it refused to accept the coats for credit and would hold them subject to plaintiff’s orders. Plaintiff then brought this action to recover the value of the coats so returned, and recovered a judgment for $47.50, to reverse which this writ of error is prosecuted.
    Frank P. Leffingwell, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff was not entitled to rescind the contract of sale, because he returned only a part of the goods purchased. His return of the two coats was an offer to return them for credit, or to resell them to the defendant, and if such offer was accepted, the defendant became liable to the plaintiff for their value. The parties could," by subsequent agreement, modify the .first contract, and the finding of the court, implied from the judgment, is that the defendant, by accepting the return of the two coats and retaining them without objection for at least a month, accepted plaintiff’s offer to return them for credit, and that thereby the original contract was modified. An offer may be accepted by conduct as well as by express words of acceptance, and we cannot say that on the evidence the court might not properly find that plaintiff’s offer was accepted by the defendant.

In assessing plaintiff’s damages the court took as true the testimony offered by the defendant that the regular price of the two coats retained by the plaintiff was $65 each, $130, and that of the two coats retained $27.50 each, $55, making a total of $185, from which a lump reduction of $25 was made. This lump reduction was apportioned between the price of the coats retained and those returned, according to their respective wholesale prices, and taking such pro rata share of the reduction from the price of the coats returned, left as their value $47.50, the amount of the judgment.

We think that the judgment of the Municipal Court works out substantial justice between the parties, and the judgment will be affirmed.

:'Affirmed.


text:
    Bessie Mae Baxter, Plaintiff in Error, v. Mrs. John K. Comstock, Defendant in Error.
    Gen. No. 15,617.

      Verdicts—when not disturbed as against the evidence. A verdict not manifestly against the weight of the evidence will not be set aside on review.
    Replevin. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    Thurman, Stafford, Hume & Burras, for plaintiff in error.
    D. Moncrieffe Kirton, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The writ of error in this case is prosecuted to reverse a judgment for the defendant in an action of replevin brought to recover the possession of a Conover piano. The piano was obtained from the Cable Piano Company in November, 1899, and in part payment therefor there was returned to that company a Kingsbury piano which defendant had bought from it in 1898 on the installment plan. Plaintiff is the daughter of defendant and was living with her mother when both pianos were purchased. When the Conover piano was purchased she was employed by the Cable Company as a stenographer. She testified that she told Mr. Cable of the Cable Company that she had a Kingsbury piano, and he agreed to give hei* the Con-over piano in exchange therefor on the payment to the Cable Company of the amount remaining unpaid of the purchase price of the Kingsbury piano, and that she paid the amount of such unpaid installments to the Cable Company. The defendant introduced in evidence a chattel mortgage given by her to the Cable Company on the Kingsbury piano at the time it Vas purchased to secure certain installments of the purchase price, and also a chattel mortgage on the Con-over piano given by her to the Cable Company to secure certain installments of the purchase price of that piano, and testified that she paid to the Cable Company all the money that was paid on the exchange of the Kingsbury piano for the Conover piano.

We think the court did not err in admitting in evidence the two chattel mortgages above referred to.

The testimony on questions material to the issue is conflicting, and we cannot say that the finding of the court, that the right of possession and property in the piano in question was in the defendant, is so manifestly against the weight of the evidence as to warrant a reversal of the judgment on that ground.

Finding no error in the record, the judgment will be affirmed.

'Affirmed.


author: Mr. Justice Brown

text:
    Ignatz Andrzejewski, Defendant in Error, v. T. E. Hill, Plaintiff in Error.
    Gen. No. 15,165.
    1. Pleading—particular declaration in personal injury action construed. The particular count of the declaration referred to in this case construed to mean that the defendant without signal or notice to the plaintiff so changed- the position of and so moved the boom which struck him that it inflicted the injury, and that this, under the circumstances, was negligence.
    2. Verdicts—when not disturbed. A verdict should not be set aside as against the clear and manifest weight of the evidence unless all the material and competent evidence that under any reasonable view the jury and the trial judge could and did legally consider on the questions involved, is also before the Appellate Court.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    Follansbee, McConnell & Follansbee, for plaintiff in error; Mitchell D. Follansbee and Clarence J. White, of counsel.
    Frank W. Koraleski and Royal N. Irwin, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment to reverse which this writ of error was sued out is for $7,000. It was rendered in a suit for - a very, serious injury suffered by the plaintiff Andrzejewski while in the employment of the defendant., T. E. Hill, as a laborer. He claimed in the first count of his declaration as it finally went to the jury, that the defendant’s negligence caused the accident, in that the defendant directed the plaintiff to work near, about and upon a certain platform, which platform was of such height and construction as to he dangerously near to moving machinery used in the conveyance of materials, and described as a certain boom and conveyor, together with certain chains, cables, pulleys and devices attached thereto, which devices were then and there operated by the defendant by steam power. The declaration further alleges that because of the plaintiff’s attention being engrossed by the performance of his duties he was unable to observe the movements of said machinery and to guard against the same. The gist of the first count is that the injury occurred by a default of the defendant in his duty to use reasonable care to supply the plaintiff with a safe place to work.

In the second count, after stating his employment as a laborer for the defendant to aid and assist in the management of the appliances and devices before stated, and in the removal of material by means of them, the plaintiff alleged that although he was ignorant of the intricacies of such machinery and devices, the defendant failed to warn and instruct him relative to the same, and while he (the plaintiff) was engaged on September 2,1904, “in obedience to the defendant’s orders and in the exercise of due care in the performance of his usual duties near and about said boom, cables, pulleys and shives,” the defendant without notice to him “changed the movement of said machinery, boom and appliances so as to cause the same, or certain portions thereof, to strike the plaintiff a severe and violent blow,” to his great, severe and permanent injury.

There were, in the finally amended declaration which took the place of the former ones and was filed by leave of court after the jury was empaneled, four counts, but the third and fourth were withdrawn from the jury by a peremptory instruction at the close of all the evidence to find the defendant not guilty thereon. The two counts above abstracted are to be assumed, therefore, to have been alone considered by the jury.

While the gist of the first one is the allegation of the failure of the defendant to use reasonable care to supply the plaintiff with a safe place to work, that of the second is a statement which we interpret to mean that the defendant without signal or notice to the plaintiff so changed the position of and so moved the boom which struck him that it inflicted the injury, and that this, under the circumstances, was negligence.

We are aware that this meaning is not attributed to the words of the second count by the plaintiff in error, whose counsel say in their reply brief that the words “changed the movement of said machinery, boom and appliances ” so as to cause the same to strike the plaintiff, can only mean that the defendant “caused the ordinary movement of said machinery, with which plaintiff was well acquainted, to be modified or changed in some unexpected or unusual way, and operated the machine in a different way without notification to plaintiff of such change.”

Of course the language of the count might bear this restricted meaning, but we think that considered with reference to the character of the machinery and appliances involved and the facts of the accident as they appear from the evidence submitted to the jury, or rather from that part of it which has been put before us (for we shall point out that a part of it is wanting in this record), the broader and more extended construction which we have indicated of the language, perhaps rather inaptly used, is a fair, legal and justifiable one for us to put on it.

" The boom which did the mischief was a part of a derrick. It was sixty feet- long or more, and it was connected with the mast of a derrick a little longer. As counsel for plaintiff in error say, the boom could be and was “raised, lowered and swung at varying heights by means of pulleys and ropes to all points of the compass.” “Its movements were governed by the engineer.”

The plaintiff, when the accident happened, was working on a platform or scaffolding at least ten and perhaps twenty feet high, about twelve feet long and eight feet wide. According to testimony which, for the purpose of reviewing this verdict and judgment we must assume the jury believed, as they certainly had the right- to do, the plaintiff was performing the work he was put on the platform to do when the boom, swinging over this platform, struck him on the shoulders. He was in a stooping position, or on one or both knees, with his back to the derrick, and untying or cutting the strings closing the mouth of bags of cement. That it was not a safe but a dangerous place to work is plainly apparent from the accident which, in this situation of things, happened to him; and this is rather emphasized than minimized by the contention of the plaintiff in error that for a number of times, estimated from a hundred at the least to perhaps two hundred during the day, that heavy boom, with its appendages, swung over this platform where this workman was not only dumping through a chute the boxes of concrete that the derrick brought, but receiving, untying and dumping through the same chute bags of cement brought by'hand to the scaffold; and that although the boom could swing at varying heights, it did swing every time only four or five feet above the platform, so that the plaintiff had to stoop or “duck” every time the boom thus came around. It may as well be noted here, however, that although this is the testimony of the foreman, it is not clear to us, in view of the testimony, of others and the photographs shown to the jury (but not to us), that this statement was received by the jury as absolutely establishing this condition of things, although it was not directly contradicted. If, as plaintiff in error contends, the derrick could and was intended to swing its boom at varying heights, it seems strange that, without apparent necessity, workmen on the platform should have been subjected to this extremely wearisome bodily-performance, to say nothing of the danger involved.

An answer, however, to the proposition that the place furnished by the defendant to the plaintiff was plainly a dangerous one, is made with great force by the defendant, that the plaintiff assumed the risk of the danger by beginning the work thereon and continuing it for five days without complaint, during all which time all the dangers must have been apparent to him, and that in this case, despite the fact that as a general rule the question of assumption of risk is one of fact for the jury, under proper instructions from the court (which in this case it is conceded were given), it became one of law for the court, because reasonable men could not have differed upon it. Therefore, it is urged, the court should have taken this count also from the jury.

As to the second count, the claim of the plaintiff in error is that in any view of its meaning, however favorable to the defendant in error, it is tantamount at most to an allegation of the negligence of a fellow servant of his, for which the common employer cannot be held liable. This question too, whether or not two persons are fellow servants, while generally one of fact for the jury, under a correct definition by the court of fellow servants (which definition, as is also conceded, was given in this case by the instructions), it is said, became one of law in this case because reasonable minds could not differ on it.

Therefore, it is said, the instruction which was tendered, to the effect that the engineer and the plaintiff were fellow servants, should not have been refused, and this count and the entire case should have been taken from the jury by a peremptory instruction for the defendant. Moreover, the verdict, it is claimed, was contrary to the clear and manifest weight of the evidence under the conceded law and the instructions which were given.

Counsel for the defendant in error, on the other hand, declare in their reply bilef that the issue in the case under this count was whether the defendant “maintained a man whose duty it was to signal the engineer who controlled the derrick, and whether or not at the time of the accident said signal man gave without warning the plaintiff a signal to the engineer to lower the boom in such a manner that the same struck the defendant in error. (Of course, however, the defendant in error is not bound by this declaration in argument, if the jury can be held justified on other grounds in their verdict.)

On the question of the maintenance of such a signal man and his alleged actions, the evidence is conflicting. If he existed, however, the plaintiff in error maintains that equally with the engineer he should have been held, as a matter of law, a fellow servant of the defendant in error, and the same results should have followed below and should follow here as to the disposition of the case.

The defendant in error claims, however, that the signal man, on whose existence and default he relies, should be considered a vice principal representing the plaintiff in error.

It is undoubtedly true that the argument in favor of the positions of plaintiff in error as to each of the questions indicated is a forceful one, as the record before us stands. But in the view which we take of that record it is not necessary to discuss them.

We are asked to reverse this judgment on the ground that the "cause should have been taken from the jury, because reasonable men could not differ as to the assumption of the risk producing the injury, and could not have differed as to the question whether, under the legal and restricted definition of “fellow servants,” which absolves the master from liability for their negligence, both the engineer and signal man (whom we must assume for this purpose existed), were such fellow servants of the plaintiff. And we are asked in the alternative to reverse this judgment, rendered on the verdict of a jury, and confirmed by the trial judge, on the ground that the verdict was against the clear and manifest weight of the evidence. It becomes frequently our duty to do this, under the powers and obligations belonging to this court. But it is in every case done in full consideration of the grave responsibility which such action involves in reversing on review the action of a judge and jury who, unlike us, heard the witnesses and considered at first hand, usually through a somewhat extended trial and deliberation, all the evidence adduced in the case. It is clear, therefore, that we should not do it unless all the material and competent evidence that under any reasonable view whatever the jury and the trial judge could and did legally consider on the questions involved, is also before us. In this case it is not. In connection with the testimony of the defendant himself, three photographs showing, according to'his testimony, the location and appearance of the platform and derrick and of the engineer’s position and shelter, and in fine “the work and its various conditions,” were marked as Defendant’s Exhibits 1, 2 and 3, and introduced in evidence. It cannot be properly claimed that they were immaterial or incompetent testimony on the matters involved in this suit, for the defendant introduced them of his own motion, but without objection from the plaintiff. In the direct examination of Mr. Hill there appear a score of questions and answers concerning and involving these photographs, the answers in some cases “showing that the witness indb cated” positions of the places involved by pointing out a portion of the photograph.

In cross-examination on the same subjects, such as “where the engineer stood,” “where the man was at the mixer,” and where other matters connected with the movements of the derrick and with the accident, were almost as many questions, answers and indications referring to these photographs and intelligible only in connection with. them.

On redirect examination and on recross examination Mr. Hill’s attention was again directed by Ms counsel to the photographs and the marks of the various places wMch had, in the course of his examination, then been placed on them, and several more questions and answers asked and made referring to them.

When Mr. Wittick, the foreman for the defendant, was placed on the stand he was not only on cross-examination referred to and examined on the photograpMc exhibits, but on direct examination, after stating that he could show the position of the plaintiff at the time of the accident better if he could be allowed to illustrate and indicate with “the table there,” he left the stand and went to the “long table before the jury” and illustrated the positions by referring to points on and about the table.

But the photographs do not appear in the bill of exceptions. Not all the other evidence is certainly intelligible without them. We have commented on a similar lack in the record in the case of Dahl v. Macdonald Engineering Company, 141 Ill. App. 187, where, in accordance with the authorities cited therein, we held that the certificate of the trial judge that the bill of exceptions contained “all the evidence offered or received,” did not overcome the showing made by the bill of exceptions itself, that it did not contain all such evidence (in that case a model used at the trial was lacking), and that we could not take the responsibility of saying, in such a case, that the verdict was not supported by the evidence, or that it was manifestly against the weight of the evidence. We may add, for illustration merely, that if the law be as distinctly announced in Chicago and Alton Railroad Co. v. Swan, 176 Ill. 424, affirming this court in the same case in 70 Ill. App. 331, that to make “fellow servants” under the settled rule in relation thereto in tMs State, men must be so situated “that they may exercise an influence over each other promotive of proper caution,” whether they fall under the first category of the rule and “are co-operating in some particular business in hand,” or, under the second, because “they are brought by their usual duties into habitual association,”—the importance of their relative stations and positions, as shown in the photographic exhibits is emphasized; and that the relative position of the signal man may be also important.

Nor perhaps is the suggestion without significance that if there were no signal man, properly so called, and the plaintiff thought there was, there might be a question for the jury whether the plaintiff assumed a risk which he did not know existed. The position of a man who sometimes gave signals, whether to warn the workmen or for another purpose, might be material. If the position of such a man was such that he could easily see the workman and know when the boom was to move and was likely to strike him, and the workman believed him always to give, a required signal, it might be that the workman could be held ignorant, and the master informed, of a risk in the place of the work, resulting from the fact that the man who sometimes gave signals for the movement of the boom was not ordered or expected always to do so.

Nor can it be said that the evidence is all clear, consistent and intelligible in regard to the material positions of the various parties, constructions and appliances involved, when all reference to the photographs and physical demonstrations are eliminated.

This injury was inflicted by a boom, under the control of an engineer, swinging over a platform. The platform is said by one witness to have been ten feet high, by another five or six feet over his head as he stood on the ground, and by a third twenty feet high. The height of the mast of the derrick was variously given from thirty to sixty-seven feet. The distance from the platform to the derrick was given by the plaintiff as fifteen feet, and that from the mast of the derrick to the engine fifteen feet more in a straight line,—thirty feet that is, from the platform to the engine. The foreman "Wittick placed the distance from the engine to the platform as only fifteen feet and says he reminded the plaintiff of this short distance in warning him that he “must give his own signals.” He makes the distances consistent by placing the mast of the derrick twelve feet from the platform and the engine only three feet from the derrick. But the defendant says the mast of the derrick was twenty-five to thirty feet from the platform and the engine not further on in a straight line, but at an angle, sixty to seventy feet from the platform.

The brief of the plaintiff in error justly says that there were three objects round which the testimony centered—the derrick, the engine and the platform— and it is quite conceivable that the photographic exhibits were useful under these circumstances to the jury and would have been to us.

We do not feel justified, in view of their absence, to disturb this judgment, and it is affirmed.

Affirmed.


text:
    Margaret Kane, Defendant in Error, v. Richard Kane, Plaintiff in Error.
    Gen. No. 15,567.
    1. Decebes—when in divorce sufficiently supported. A finding that the defendant “had been guilty of extreme and repeated cruelty toward the complainant since the marriage, as charged in the complainant’s bill of complaint,” together with a general finding that the equities were with the complainant, is sufficient to support a decree of divorce.
    2. Divobce—power to settle property interests. If by answer the ownership of real estate is brought into question the fact that the bill did not pray relief with respect thereto, does not preclude the court from settling such question by decree in favor of the complainant.
    Divorce. Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    D. Ryan Twomey, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

Margaret Kane, the defendant in error herein, was granted a decree of divorce from Richard Kane by the Circuit Court of Cook county. The cause was Contested and no certificate of evidence was filed therein. The decree, after finding the marriage of the parties and the jurisdictional facts, found that the defendant had “been guilty of extreme and repeated cruelty towards the complainant since the marriage, as charged in the complainant’s bill of complaint.”

The plaintiff in error asks the reversal of the decree on the ground that this finding (which, together with the general recital afterward found in the decree, that the equities are with the complainant, constitutes the only finding of fact in relation to the offenses charged in the bill) is not sufficient to support the decree.

This court held in Milashwskis v. Milashwskis, 140 Ill. App. 501, and the Branch Appellate Court held in Trenchard v. Trenchard, 151 Ill. App. 215, that the finding in question was sufficient. We have not changed our opinion.

The decree gave the complainant the custody of her minor children, provided for the payment by the defendant to the complainant of a solicitor’s fee of twenty-five dollars, and finding and adjudging certain real estate standing in the complainant’s name to be her sole property, decreed that the defendant be deprived of all contingent dower right in it.

The plaintiff in error complains of the finding and provision concerning the real estate, on the ground that it is based on no allegation in the bill.

The bill asked alimony and the answer of the defendant apparently responding thereto introduced an allegation concerning the real estate, in which he claimed that it had been purchased with his money and stood in his wife’s name by her fraud.

The court in its decree, although finding all the equities with the complainant, made no order concerning alimony. It was, however, entirely proper for it to dispose of the matter of the real estate alleged by the defendant in his answer. Had it found the equities in regard to it with him, it might, under section 17 of the Divorce Act, have decreed the conveyance of the property to him. Finding them with the complainant, it reasonably recited that finding, and in adjudging the contingent or dower interest of the defendant forfeited merely declared the effect of section 14 of the Dower Act.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Oscar B. McGlasson, Defendant in Error, v. Thomas Hennessy, Plaintiff in Error.
    Gen. No. 15,586.

      Liens—section 49 of act relating to stable keepers construed. A lien exists in favor of a stable keeper for the board etc. of a horse etc. as against a mortgagee taking possession from the owner, where the mortgagee has notice of facts sufficient to put him upon inquiry and where though the possession of the horse, etc. temporarily passed out. of the stable keeper it became restored through no act of such stable keeper.
    Trover. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed May 4, 1911.
    Richard I. Gavin, for plaintiff in error.

      Mather & Hutson, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago to reverse its judgment for $150 and costs in trover, as an alternative to one for the recovery of certain property (a horse, wagon and harness) in a replevin suit. The judgment was in favor of Oscar B. McGlasson, the defendant in error, and against Thomas Hennessy, the plaintiff in error. The cause was tried by the court without a jury.

There are. accusations of “fraud,” “subterfuge,” “conspiracy,” etc., in the brief and argument of counsel for plaintiff in error, which seem to us entirely uncalled for and irrelevant. The question presented by the record is an interesting and delicate one of law. Material facts are not in dispute and can be reconciled with the existence of a mere difference in opinion between the parties as to their respective rights, without imputing bad faith or blameworthy motives to either one.

Those facts are these: Mr. McGlasson, who is secretary and treasurer of the McNeil & Higgins Co., on January 20, 1909, held a chattel mortgage, the date of which does not appear, on certain property belonging to Mrs. Clara C. Miller at 197 Clark street in Chicago. The property was a stock of groceries in a store at that number and a horse, wagon and harness. From the events which took pláce it is a fair presumption that Mr. McGlasson represented his corporation in the matter, but that is immaterial.

Oh the day in question McGlasson instructed Charles C. Williams, who was connected with the credit department of the McNeil & Higgins Company, to foreclose this chattel mortgage, but told him if Mrs. Miller wished to save the expense of a foreclosure of the chattel mortgage, to take a bill of sale of the property and possession of the place. Mr. Williams went to the place and Mrs. Miller gave him possession of the store, with the keys. At the same time Mr. Williams drew a bill of sale of certain property, presumably that covered by the mortgage (but that also is immaterial), running from Clara C. Miller to Oscar B. McGlasson, in satisfaction of the said mortgage.

This bill of sale Mrs. Miller signed and delivered to Mr. Williams for Mr. McGlasson. It described property as follows:

“One coffee mill, two scales, one ice box, one stove, one desk, all counters, shelving and other fixtures of every kind and description. Also all stock of groceries, consisting of flour, sugar, coffee, teas, spices, baking powder, bottled goods, can goods, etc., all contained in the store room known as 197 Clark street, Chicago, Illinois. Also one top delivery wagon, one set single harness and one horse now kept in the ‘Erie Livery Stable’ located at 199-201 East Erie Street, Chicago, Illinois.”

The horse and wagon and harness were kept when not in use by Mrs. Miller in her retail grocery business at the livefy and board stable of Hennessy, the plaintiff in error, on Erie street at the number indicated in the bill of sale. They had been kept there and the horse fed there for seven or eight months. On January 20, 1909, there was due for that keeping from Mrs. Miller to Hennessy two months’ board, amounting to $44. Mr. Hennessy testified that Mr., and not Mrs. Miller, first brought the horse and wagon to his stable, and said that he owned them; but this also is wholly immaterial in this suit and there can be ho doubt that they really belonged, as represented in the bill of sale, to Mrs. Miller.

Mrs. Miller had a driver in her employ named Curtis, and Curtis used to come after the horse and wagon each day and bring them back to the stable each evening. At the time of the delivery of the bill of sale and possession of the store to Mr. Williams for Mr.McGlasson, the horse and wagon were standing in front of the store at 197 North Clark street. Mr. Williams testified: “I took possession of the store and contents and the horse and wagon—ont in front of the store, it was, at 'that time.”

After Mr. Williams took possession of the place and property he put a custodian named Ellis in charge of it, and the business proceeded for a few days while McGlasson (or the McNeil & Higgins Company if that company was in reality the beneficial owner) tried “to sell the place out.” Mrs. Miller stayed on and helped in the business. Curtis, the driver, took charge of the delivery wagon as usual.

January 20, 1909, was Wednesday. On the following day apparently, Mr. McGlasson visited the store of which he had taken possession, and there saw Mr. Hennessy, who had been talking with Mr. Miller about the bill for feed and board then due him from Mrs. Miller. A conversation concerning the value of the horse and wagon followed between Hennessy and McGlasson, but not about the bill which was due for board.

There is some uncertainty of days and dates in the testimony of the witnesses as to subsequent events involved in this controversy, and it is impossible to tell with accuracy the intervals between events. But it is immaterial. Curtis continued for a longer or shorter time-—for a day or two or three, or (as seems from some of the testimony possible) for a week—to use the horse and wagon for delivery purposes during the day and return them to Hennessy’s stable at night. But after the lapse of this time Mr. McGIasson and Mr. Williams, his agent, gave orders to the custodian, Ellis, to put up the horse and wagon at another stable in the vicinity; so Curtis, the driver, on one morning took them out as usual, but carried them that night to the other stable. A day or two afterward the horse with the wagon being left in front of a hotel near Hennessy’s stable while the driver, Curtis, was delivering groceries to the hotel, walked off and into his old quarters at Hennessy’s. The driver followed him and asked for him, because there were still groceries to deliver. Hennessy seems first to have consented, but upon an incidental remark from Curtis that “the day was probably his last one,” and that the store was probably about to finally change hands, reconsidered his assent and then refused and has since refused to give up the horse, wagon and harness except on the payment of the bills due to him from both Mrs. Miller and Mr. McGIasson for the keeping. An attempt at compromise seems to have been made, but there is no claim either that Mr. McGIasson has not been willing to pay for all the board or keeping of the horse and wagon since his obtaining the title to them, or that he has been willing or has offered to pay also the amount due from Mrs. Miller for such board and keeping before he thus became entitled. It may be assumed from the evidence that McGIasson offered Hennessy more than enough to pay for such board and keeping while he (McGIasson) was owner of the property, but not enough to pay the entire bill due to Hennessy.

McGIasson having made án ineffectual demand for the delivery of the horse, wagon and harness to him without the payment of this bill, brought a suit in replevin and when the bailiff returned the writ unexecuted because of inability to find the property, declared in trover, with the result hereinbefore stated.

It is plain that the question in the case is purely on the construction of section 49 of the “Act to revise the law in relation to liens,” approved March 25, 1874; That section is as follows:

“Stable keepers and any persons shall have a lien upon the horses, carriages and harness kept by them for the proper charges due the keeping thereof and expenses bestowed thereon at the request of the owner or the person having the possession thereof.”

If under this statute Hennessy had a lien for the entire bill due him for the board and keeping of the property in question, he was not obliged to give them up; the right of possession when the suit was brought was not in McGrlasson, and the judgment should have been nil capiat and for costs against him. If, on the other hand, Hennessy was not entitled to such a lien, then as McGrlasson is under no liability to pay Mrs. Miller’s debts, the proven withholding of the property by Hennessy justifies the judgment which was rendered against him.

Even if the horse had not voluntarily returned to the custody of Hennessy, and if there were nothing in the case affecting McGrlasson with notice of anything which should have put him, before his purchase, on inquiry as to a possible or probable bill due to Hennessy for “board and keeping” of the property he bought,—in other words, if in the strictest sense McGrlasson could be considered an innocent purchaser, without notice, of a horse bought from its real and ostensible owner during the time that owner had for use in the ordinary course of his business taken it out from the livery stable where it was boarded,— the question involved would still be a doubtful one, for diverse answers to which high authority could be adduced.

Thus, while the Supreme Judicial Court of Massachusetts, speaking through Mr. Justice Holmes, now of the Supreme Court of the United States, concerning a somewhat similar statute of Massachusetts, held in Vinal v. Spofford, 139 Mass. 126 (a very similar case to that at bar), that the statutory lien given by the Massachusetts statute to a person boarding a horse was nothing more than a common law lien dependent on continued possession for its existence, and was divested by the owner rightfully taking a horse from the stable keeper’s custody and then selling him to a purchaser “in good faith and for a valuable consideration,” yet in State v. Shevlin, 23 Mo. App. 598, a statute of Missouri giving a stable keeper’s lien for board was held to keep that lien good “as against third persons without notice while the horse is boarded in the stable of lienor, although it may with his consent be used during1 the day by the owner in his business and this although the statute contained the words “and such lien shall be valid against said property in the possession of any person receiving or purchasing it with notice of such claim”—a provision which by exclusion might have been thought to negative such a claim.

To hold that the lien was preserved against a third person without notice only if the stable keeper had actual physical possession of the property, says Judge Seymour D. Thompson in that case, “would be to construe the statute so as to deprive stable keepers of the protection which the Legislature probably intended to give them, since, as is well known, in most cases where horses are boarded, the owner is allowed to use them in his business during the day. This being so, the statute could not have intended to allow the owner to destroy the lien of the stable keeper while having the possession of the horse on the street during the day by selling it or mortgaging it to a stranger without notice of the lien. On the contrary, we are of opinion that every person is bound so far to take notice of the statute, that when he is about to become the purchaser or mortgagee of a horse found upon the street in the custody of its owner, it is incumbent upon him to make inquiry as to the place where the horse is boarded and whether anything is due for its keeping. There is no greater hardship in this rule than there is in the general rule in respect of purchases of personal property, that the purchaser gets no better title than the seller has.” Supporting this view of Judge Thompson may be cited such cases as: Welsh v. Barnes, 5 North Dakota, 277; Caldwell et al. v. Tutt, 78 Tenn. 258; Young v. Kimball, 23 Pa. State 193; Walls v. Longstreet, 2 Ind. App. 202, and others; and the weight of authority seems to be in its favor. See Am. & Eng. Enc. of Law, vol. 19, p. 442, and Cyc., vol. 25, p. 1511.

This position is strengthened as against the authority of Vinal v. Spofford {supra) by the consideration that the statute of Massachusetts does not, as1 does the Illinois statute, mention stable keepers eo nomine, but gives rather a general agister’s lien for “pasturing, boarding or keeping horses or other domestic animals,”—such a lien as is given in addition to the stable keeper’s lien under consideration by the 50th section of our lien Act, which provides generally that “agisters and persons keeping, yarding, feeding or pasturing domestic animals, shall have a lien upon the animals agistered, kept, yarded or fed, for the proper charges due for the agisting, keeping, yarding or feeding thereof.” It would therefore seem that the stable keeper’s lien given by the 49th section must have been intended to protect stable keepers in the particular circumstances described by Judge Thompson.

But however that may be we are not obliged to decide the question of the possible existence of the lien, if the case at bar did not contain the elements which we have noted of the return of the horse by his own volition and without the interference of the stable keeper to the stable keeper’s custody, and the still more important fact that there is evidence of Mc-Glasson’s knowledge, before he bought, of circumstances which were sufficient to put bim on inquiry as to whether there was not a claim for board against the property in favor of the “Erie Livery Stable located at 199-201 East Erie Street, Chicago.” The description of the horse, wagon and harness in the bill of sale drawn by Mr. Williams, the agent of McG-lasson, and received by him as such agent, is, in our opinion, conclusive as to the fact that McGIasson must be charged with notice that the horse was boarded at Hennessy’s stable. That being so, we think that he was put upon inquiry as to any bill that might be owing for board there, and must be chargeable with such knowledge as reasonable inquiry would have revealed.

This seems to us consistent with the evident intention of the Legislature in the statute involved. It is not in conflict with the authority of the Massachusetts Supreme Court, for though the strict application of the logic of the opinion in Vinal v. Spofford might be inconsistent with it, the opinion in that case expressly limits its holding to a denial of the right of the stable keeper to replevy the horse after possession had been voluntarily given up.

Our conclusion as to the effect of the statute seems to us, moreover, not only in accordance with right reason and the doctrine of the Missouri, Tennessee, Pennsylvania and Indiana courts, but also in accordance with the holdings of our own courts on the not dissimilar question of the landlord’s lien on growing crops. Watts v. Scofield, 76 Ill. 261; Hunter v. Whitfield, 89 Ill. 229; Finney v. Harding, 136 Ill. 573.

It follows from the views we entertain and have hereinbefore expressed, that on the question of law involved in the construction of the statute, and not from any difference from the court below as to the facts, we must reverse the judgment of the Municipal Court and enter a judgment here against the plaintiff of nil capiat and for costs.

Reversed and judgment here.


text:
    Henry Levy, Defendant in Error, v. Isaac Rosenblum, Plaintiff in Error.
    Gen. No. 15,594.
    Municipal Court—when judgment not reversed. A reversal of a judgment of the Municipal Court will not be ordered when it appears that substantial justice has been done.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed May 4, 1911.
    Bernard J. Brown, for plaintiff in error.
    Harry H. Levy, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The defendant in error, Henry Levy, sued the plaintiff in error, Isaac Rosenblum, in the Municipal Court of Chicago for professional services as a lawyer rendered by him to Rosenblum and for money lent by him to Rosenblum, and secured a verdict from a jury and a judgment by the court on the verdict for $61.

Neither the services nor the loan is denied in the argument here, but the plaintiff in error complains of the judgment because, as he says, there was a nonjoinder of plaintiffs below, inasmuch as one Leon Hornstein “jointly entered into the performance of services in connection with the case of Rosenblum v. Chicago Union Traction Company, and if the defendant (plaintiff in error) is liable at all, he is liable to the two attorneys.”

On this ground he implies in his argument in this court he asked the trial judge to instruct the jury to find the issues for the defendant and moved the court after the verdict in arrest of judgment. The denial of this request and motion he assigns for error.

There is no suggestion in the stenographic report of the evidence and proceedings in the Municipal Court that any such point of non-joinder was made in that court. The defendant Rosenblum contented himself with denying any contract for services and even that he ever had a suit against the Chicago Union Traction Co. or ever borrowed any money for costs. He said he never had any conversation about any case of his with Levy and Hornstein, although Mr. Hornstein had sworn to one in detail.

Counsel for plaintiff in error, however, bases his argument here on the testimony of Hornstein and of Levy himself, for the defendant in error. But that evidence is all consistent with the evident theory on which the plaintiff was prosecuting the claim, namely, that the contract for services and the arrangements about the loan were between Rosenblum and Levy, and that Hornstein was merely called in to assist Levy. The compensation of Hornstein in that case would come from Levy.

Hornstein testified that he said in an interview between himself and Levy and Rosenblum that if Levy saw fit to make such ah arrangement as was proposed, he, Hornstein, would assist Levy, if he wanted, later on, and, repudiating the assumption contained in a question of defendant’s counsel that “the agreement was that Rosenblum would pay him (Hornstein) one-third of the net proceeds of the suit,” said, “That was not to me,—he made that arrangement with Levy.”

We see no reason for disturbing the judgment of the Municipal Court, which is affirmed.

Affirmed.


author: Mb. Justice Bbown

text:
    Charles O. Carpenter, Appellant, v. Commonwealth Trust Company, Administrator, et al., Appellees. John F. Devine, Administrator, Interpleader.
    Gen. No. 15,614.
    1. Attachment—when does not lie against the estate of deceased nonresident. The only proper and feasible way for a creditor in Illinois to reach property of his debtor in Illinois after the death of such debtor, is to take out administration in Illinois.
    2. Attachment—section S of act construed. Neither section 3 of the Attachment Act, nor any other section of such act, subjects the heirs, executors and administrators of deceased debtors to the provisions of the Act.
    Attachment. Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    A. D. Gash, for appellant.
    T. M. Poynton, for appellees.
   Mb. Justice Bbown

delivered the opinion of the court.

One DeWitt C. Bovee, a resident of Pittsburgh in the Commonwealth of Pennsylvania, died on September 17, 1908, in Chicago, Illinois. He was the owner of forty shares of stock of the par value of $100 each of the Standard Orchard Company, an Illinois corporation. This stock stood in his name on the books of the corporation. November 1, 1908, the Commonwealth Trust Company, a Pennsylvania corporation, located at Pittsburgh, was appointed and qualified by the proper Pennsylvania Court as the administrator of the estate of said DeWitt C. Bovee. Emily Jones, M. W. Bovee, H. S. Bovee and H. W. Bovee are the only heirs at law of DeWitt C. Bovee. They are all non-residents of the State of Illinois.

Charles O. Carpenter, who appears (by the appeal bond filed here) to be a resident of Illinois, claiming that on promissory notes and otherwise Bovee had become indebted during his lifetime, and that he, Carpenter, had become the assignee and owner of said indebtedness, began a suit in the Municipal Court of Chicago November 14, 1908, naming as defendants “The Commonwealth Trust Company, administrator of the estate of DeWitt C. Bovee, deceased, and Emily Jones, M. W. Bovee, H. S. Bovee and H. W. Bovee, only heirs at law of DeWitt C. Bovee, deceased, and ‘Estate of DeWitt C. Bovee, deceased. ’ ” What, if any, entity was designated by the ‘‘Estate of DeWitt C. Bovee” we are not informed by the agreed statement of facts on which this cause was tried below and on which it comes to this court.

As all the defendants were non-resident the suit was begun by attachment.

The record is by praecipe and the affidavit for attachment does not appear, but by the attachment writ it appears that it must have contained the allegation that the Commonwealth Trust Company# administrator of the estate of DeWitt C. Bovee, deceased, and Emily Jones, M. W. Bovee, H. S. Bovee and H. W. Bovee were indebted to Carpenter in the amount of twenty-three hundred and fourteen dollars.

November 17, 1908, the plaintiff filed a declaration in which, setting up in various counts the alleged indebtedness of DeWitt C. Bovee and his ownership of them by assignment, he further alleged that DeWitt C. Bovee was deceased and that the defendants named in the declaration were “his legal representatives, his heirs at law and his estate respectively,” and that by means of the facts alleged “and by force of the statute in such case made and provided, the defendants became liable to pay said plaintiff” the respective sums claimed and “in consideration thereof undertook and promised to pay” them, etc.

In the meantime, on the same day the suit was begun, November 14, 1908, an attachment writ against the defendants named was issued and served by leaving a certified copy of it with the proper officer of the Standard Orchard Company in Chicago, for the purpose of attaching the stock held by Bovee in his lifetime in that corporation.

January 4, 1909, John F. Devine, a resident of Illinois, was appointed administrator of the estate of DeWitt C. Bovee in Illinois, and on the same day the attorney who represents him in this writ of error filed the following document in the attachment suit: “I hereby enter the appearance of John F. Devine, Ancillary Administrator of DeWitt C. Bovee, deceased, and the appearance of all the defendants and myself as their attorney in the above entitled cause.”

January 9, 1909, the said John F. Devine, styling himself “Ancillary Administrator of the Estate of DeWitt C. Bovee,” filed a sworn interplea, in which he claimed that the forty shares of the Standard Orchard Company “attached and seized by virtue of the said writ of attachment were at the time the same were so attached and seized and still are the property of the estate of said DeWitt C. Bovee, deceased, of which this interpleader is the administrator, and not of the said defendants named in said attachment suit.”

On the same day, according to the agreed statement of facts heretofore referred to, the Commonwealth Trust Co., administrator, Emily Jones, M. W. Bovee, H. S. Bovee and H. W. Bovee filed their pleas to the plaintiff’s action, but as we have not the pleas in question in the record, we do not know what they pleaded.

On February 16,1909, however, the Municipal Court entered an order, reciting that “the cause had come on in due course for trial without a jury,” and that the court had found the issues joined in favor of the inter-pleader, John F. Devine, Auxiliary Administrator of the Estate of DeWitt C. Bovee, as to his claim upon the property attached by virtue of the attachment writ issued in said cause, and found that said property was legally and lawfully the property of said John F. Devine, etc., wherefore it was considered that John F. Devine, Auxiliary Administrator, etc., have and recover his costs from the plaintiff, etc. From this order the present appeal was taken to this court by Carpenter.

By a bill of exceptions allowed by the court and filed in the cause below, it is recited that “the cause came on to be heard upon the interplea of John F. Devine, Ancillary Administrator, and the replication to said interplea,” (which replication is not in the record).

Whatever may be thought of the technical accuracy of the proceedings or of the record before us in this cause, we cannot see any reason to interfere with the judgment of the court below, which has found and left the title to the stock in question where it should be. It is in the administrator of DeWitt C. Bovee, properly appointed in this state, free from any lien or claim except that trust which his duties as administrator impose on him.

The stock in the Illinois corporation, resident here, had its situs for the purposes of administration in this state. Even a simple contract debt constitutes assets for the purpose of administration where the debtor resides. Walker v. Walker, 55 Ill. App. 118, p. 122; Cooper v. Beers, 143 Ill. 25; Wyman v. Halstead, 109 U. S. 654. See also In re Fitch, 160 N. Y. 87; Arnold v. Arnold, 62 Georgia 627, p. 637; Cook on Stock & Stockholders, section 485.

The only proper and feasible way for a creditor, in Illinois at least, to reach it after Bovee’s death and while it still stood in his name on the books of the corporation and had not been interfered with by or transferred to the foreign administrator, was to take out administration here. Somebody else apparently did that, while he sued a heterogeneous list of non-resident defendants, of which one (“the Estate,” etc.) was in any legal sense an abstraction. Neither the foreign administrator nor the heirs were the proper subjects of such a suit as was brought on the claims in question.

Section 3 of our Attachment Act, Chapter 11 of the Bevised Statutes, counsel for appellant claims was passed for the purpose of allowing a proceeding like the one brought by appellant. We do not so read or construe it. It subjects the heirs, executors and administrators of deceased defendants, not deceased debtors, to the provisions of the Act, and prevents the abatement of an attachment suit by the death of a sole defendant, which before its passage was the effect of such a death. This is the construction given to it by the Supreme Court. Davis v. Shepleigh, 19 Ill. 386; Dow v. Blake, 148 Ill. 76.

There was no “deceased defendant” in this proceeding when it was begun. Bovee was merely a deceased debtor. Sections 42 and 43 of the Administration Act taken together show clearly enough that the proper remedy for an Illinois creditor was the one we have before indicated. Appellant argues that by section 29 of the Attachment Act an interplea claiming the property attached can only be made by a person other than the defendant. Devine, the Illinois administrator, was such a person. He was not a defendant nor in privity with any defendant, unless it was the purely imaginary and fictitious one, “the Estate of DeWitt C. Bovee.”

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Samuel Greenfield, Defendant in Error, v. Joseph B. Magidson et al., Plaintiffs in Error.
    Gen. No. 15,622.
    Municipal Court—when judgment reversed and final judgment entered in Appellate Court. If there is no evidence to support the judgment against the defendant in the action, the Appellate Court will, in a proper case, not only reverse the judgment hut enter final judgment with costs in favor of the defendant.
    Error to the Municipal Court of Chicago; the Hon. John H. Gh> lan, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed May 4, 1911.
    Pines & Newmann, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment which this writ of -error is brought to reverse is for $65 and costs. It was entered by the Municipal Court of Chicago against Joseph Magidson, Israel Magidson and Abraham D. Magidson, doing-business as Magidson Bros., in favor of Samuel Greenfield. The suit in the Municipal Court was based on the alleged wrongful removal of a sign from the plaintiff Greenfield’s premises, and the damages allowed by the judgment measured the estimated injury to the plaintiff’s personal property and building caused by such wrongful removal and the negligent manner in which it was effected.

We will not discuss the damages nor the rightfulness of the removal. It is quite sufficient to say there is not in the record presented to us any competent evidence that the defendants (who are the plaintiffs in error here) had any thing to do with the said removal. That a witness swore that the men who made the removal said they were sent by Magidson Bros, and produced a paper on which was printed Magidson Bros’, firm name and business, was not such evidence. The only evidence on the subject, any part of which is competent, is the statement of the witness Joseph B. Magidson that neither he nor his brothers, Israel P. Magidson and Abraham Magidson, nor any one in his behalf, ever either ordered, instructed, or authorized any person or persons to procure, take or remove said sign, and that neither he nor his partners had ever given to any person or persons any paper or order directing or authorizing them to remove the said sign from G-reenfield’s premises.

The judgment of the Municipal Court will be reversed and a judgment of nil capiat, and for costs in both courts entered here in favor of the defendants.

Reversed and judgment here.


text:
    Effie Perkins, Defendant in Error, v. Thomas M. Hunter et al., Plaintiffs in Error.
    Gen. No. 15,629.
    Appeals and errors—what order not final and appealable. In a proceeding to try the right of property, an order which does not adjudge “the right of property” to any one, is not final and therefore not appealable.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1909.
    Writ dismissed.
    Opinion filed May 4, 1911.
    Bernard J. Brown, for plaintiffs in error.
    Charles W. Taylor and F. S. Loomis, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The order of the Municipal Court which it is sought to reverse by this writ of error was not a final one in any view of it which may be taken. Whether the Municipal Court had or had not the power to entertain the “trial of the right of property” by a defendant to a suit in which the property was attached, it is not necessary to decide, and we do not do so. The statement of claim specified a large quantity of property besides four trunks and their contents, all which, by the order of the court which this writ of error seeks to reverse, is found to be “exempt from attachment and garnishment.” But the only order is that the Bailiff Hunter surrender the four trunks “held by him on the attachment writ.” The bailiff had not seized under the attachment anything but the trunks and contents, but had served the writ of attachment so far as the other goods were concerned by summoning as garnishee the Warehouse Company which held them in storage.

The original statement of claim shows the suit to be brought as a “trial of the right of propertyunder section 48a of the Municipal Court Act added by amendment in 1907 to the original Act, although in answer to a rule oh the plaintiff to file a more specific statement of claim she declared that she was the owner of the property described in the original statement of claim, “which has been levied on by Thomas M. Hunter, Bailiff of the Municipal Court of Chicago as in said original claim stated,” and that she claimed “the same as belonging to'her and as exempt under the exemption laws of the State of Illinois in such case made and provided.”

Whether a right existed in the defendant in error to bring this suit in this way because she claimed an exemption is, as we have said, immaterial, and it is also immaterial whether the goods named were in reality exempt from attachment.

The order is not a final one. The finding embraces all the property claimed by Mrs. Perkins, and is to the effect that they are all “exempt from attachment and garnishment.” It does not, however, adjudge “the right of property” to any one, and the order is only an order on an officer of the court to surrender that portion of the property which was claimed which had been actually in his possession under the attachment writ. The attachment had then been quashed by an order of the Municipal Court, and the judgment quashing it has now been affirmed by this court.

There is no “final order or judgment” of the Municipal Court herein for our review, and the motion of the defendant in error to dismiss the writ of error for want of jurisdiction to entertain it, which was heretofore reserved to the hearing, is allowed and the writ dismissed.

Writ of error dismissed.


author: Mr. Justice Smith

text:
    Frank Simpson Fruit Company, Defendant in Error, v. The Atchison, Topeka & Santa Fe Railway Company, Plaintiff in Error.
    Gen. No. 14,828.
    1. Instructions—when denial of peremptory proper. If there is evidence tending to establish the averments of the declaration on the material issues asserted by the plaintiff the denial of a motion by the defendant for a peremptory instruction is proper.
    2. Depositions—when refusal to pass upon motion to suppress, improper. A motion to suppress a deposition should be made and passed upon before the case is called for trial, and it is improper for a judge to whom such a motion is addressed before the trial to decline to pass thereon and to rule that it should be passed upon at the trial.
    3. Depositions—who entitled to read. So long as depositions remain on file and unsuppressed if the party at whose instance the same were taken does not read the same, the other party has a right so to do.

      Error to the Municipal Court of Chicago; the Hon. Thomas B. Lahtby, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 4, 1911.
    Robert Dunlap, Lee F. English and James L. Coleman, for plaintiff in error.
    Charles A. Butler, for defendant in error; Anderson & Eaton, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

This case is reported in 152 Ill. App. 235, and 245 Ill. 596. The right to maintain the action in the courts of this State being established, there remain two questions presented and argued by the plaintiff in error.

First: There was no proof of a fact essential to recovery—in that “there was no proof whatever and no attempt to prove that bananas ever were or could be carried from New Orleans to Los Angeles over the route followed and be brought to destination in the same green condition as when shipped.” The car of bananas in question was loaded at New Orleans the evening of December 26,1906, and went out that night. It was delivered to the plaintiff in error at Kansas City at 3:15 p. m. December 29th, and left the yards at Argentine, eight miles west of Kansas City, at 9:25 a. m. December 30th, more than eighteen hours after receiving the same. The schedule time from Argentine to Los Angeles of the train in question was seven days, two hours and forty-five minutes. The car reached Los Angeles in the afternoon of January 9,1907, eleven days after receiving same, and a delay of almost four days between Kansas City and Los Angeles. The car was held at different places en route, and at one place it was on a side track over eleven hours while the crew was awaiting orders. The testimony was that to allow the car to stand was bad for the bananas—they would ripen faster when standing than when moving. Dufard testified that he was a banana messenger in charge of said car and ventilated it to the best of his ability, and had made ten trips over the said route in charge of bananas, and the reasonable time therefor from New Orleans to Los Angeles was nine days. The bananas, it was said, were at Kinsley, Kansas, 304 miles west of Kansas City, “a third on a turn, coloring up,” and counsel for plaintiff in error urged that as bananas generate heat and when they begin to ripen cannot be stopped, it was clear they would have been in a ripe condition when they reached Los Angeles and “a slight delay in transit would have no worse effect upon them.” That may be; but it may also be said, so much the more reason plaintiff in error should have been concerned in not allowing this car to stand around on the tracks for almost four days. We think that counsel, in contending that the proof should tend to show fruit like bananas should be brought to destination “in the same green condition as when shipped,” ask the application of a too stringent rule. The questions on this point for the jury to pass upon, and submitted under proper instructions of the court, were: Was there unnecessary and unreasonable delay in the Transportation of said car? If so, and if the bananas were when shipped “in good, sound, merchantable and shipping condition” (the language of the instruction), were they damaged by reason of said delay? The court instructed the jury in part as follows: “If the jury further find from the evidence that the defendant could not in the practical operation of their road have carried said car of bananas to destination before the same became in part ripe and turning, then the jury are instructed that the defendant is not liable for such part, if any, of the damage to said bananas as could not have been prevented if said bananas had been hauled by defendant to destination without delay.” It seems to us that there was sufficient evidence to submit the cause to the jury, and we are not warranted in holding otherwise.

The other point is that the court erred in not allowing the motion of plaintiff in error, made some time prior to calling the case for trial, to suppress the deposition of one Dufard on the ground the cross-examination of the witness was not proper, and the trial court erred in permitting defendant in error to read to the jury said improper cross-examination. The judge who heard the motion to suppress declined to pass upon the same, and ruled that it be passed upon at the trial of the case. This ruling was improper. A motion to suppress a deposition should be made and passed upon before the cause is called for trial. However, it was harmless error, for we think the motion should have been denied. The deposition of said witness was taken by the plaintiff in error at New Orleans on written interrogatories and cross interrogatories, and returned and on file at the time of maldng said motion and on the trial of the case. The plaintiff in error oh the direct examination asked Dufard if he was the messenger in charge of the car in question from New Orleans to Los Angeles, and on his answering he was asked, among other questions: “If you answer yea to the last interrogatory you may state during how much of said journey you remained on said car, and you may state where you left said car and the time you so left it.” Answer: “I remained with said car from the time it left New Orleans until it reached Barstow, California, January 8, 1907, at 8:55 a. m., and I left the car at that place and at that time.” Question: “You may state what your duties were in connection with said car.” Answer: “Messenger in charge.’’ Question: “You may state what particular things you did with reference to said shipment.” Answer: “Ventilated the car to best of my ability. Closed and opened it whenever necessary.” On cross-examination the defendant in error asked when the ear arrived and left certain places, the length of time the car was at said places and the cause therefor. These questions were answered and it is to this cross-examination strenuous objections are made. It appears to us that these questions were properly allowed on cross-examination. The defendant in error had the right to read same on the trial. In Adams v. Russell, 85 Ill. 284, the court said: 1 ‘It is next urged that the Court erred in permitting appellees to read the cross-examination to Watson’s deposition. We see no objection to such a practice. It has always been understood that where one party takes a deposition, unless he obtains leave before the trial and withdraws it, if he fails or refuses to read it, the other party may introduce it. All depositions, so long as they are on file in the clerk’s office, when properly taken and containing evidence pertinent to the issue, may properly be used on the trial.”

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    The Dixon-Hanson Company, Plaintiff in Error, v. Mrs. A. W. Svoboda et al., Defendants in Error.
    Gen. No. 15,582.

      Contracts—effect of rescission. After a contract has been duly rescinded It cannot be revived except with the consent of the party who made the rescission.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911,
    George A. Schmitt, for plaintiff in error.
    No appearance for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

An agent of plaintiff in error on March 27, 1908, induced Mrs. Svoboda to subscribe for and agree to pay eighteen dollars in monthly installments of one and a half dollars each for a set of six books. Svoboda was a shoemaker in humble circumstances, and at the time of subscribing for the books Mrs. Svoboda said to the agent that if her husband wouldn’t give her the money she couldn’t pay for them. On March 30th the books were delivered, and only having fifty cents she paid that amount to the agent and he left the books. A few days after Mrs. Svoboda, with a friend, returned the books to plaintiff in error, saying she could not keep them. No attempt was made by plaintiff in error to return the books or collect the money for seven months—until November 4, 1908, when this suit was begun.

The trial court evidently held that under all the evidence there was a rescission of the contract. If that was correct, then neither the bringing of the suit nor the statement of counsel for plaintiff in error on the trial that if the books had been returned “they can have a new set without a replevin suit,” could revive the contract.

In view of all the circumstances the judgment is affirmed.

Affirmed.


text:
    Herbert L. Joseph & Company, Plaintiff in Error, v. Mrs. F. Perkins et al., Defendants in Error.
    Gen. No. 15,590.
    Enromas of cotjbt—when not disturbed. The finding by the court in a trial at law will not necessarily be disturbed even though the testimony is not as clear and satisfactory as might be desired.
    Attachment. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in this court at" the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    Bernard J. Brown, for plaintiff in error.
    No appearance for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error brought a suit in attachment against defendants in error on the ground Mrs. Perkins was about to remove her property from the State, etc. The cause was submitted to the court, without a jury, who found for the plaintiff in error on the merits and entered judgment for $179. On the attachment issue the court found for defendants in error and quashed the attachment, of which plaintiff in error complains.

The question was one of fact for the court, and while the testimony was not clear and satisfactory as might be desired, we are not disposed to disturb the finding.

The judgment is affirmed.

Affirmed.


text:
    Michael A. Herrick, Defendant in Error, v. Canada Railway News Company, Plaintiff in Error.
    Gen. No. 15,619.
    Municipal Coubt—how form of action determined in fourth class cases. In cases of the fourth class in the Municipal Court the form of action is what the evidence shows it to be; no written pleadings being required a misnomer in the form of action is not material. The same rule applies that previously prevailed with respect to actions commenced before justices of the peace.
    Error to the Municipal Court of Chicago; the Hon. John H. Gitlan, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 4, 1911.
    Kretzinger & Rooney, for plaintiff in error.
    A. F. W. Siebel, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error brought a suit for wages for the months of June and July, 1908. The cause was submitted to the court and a judgment was entered in his behalf for $150.

We think the evidence fairly tends to show that the plaintiff in error conducted “The Wawa,” a summer hotel in Ontario, and Mr. John Watson was the manager thereof; Mr. Watson agreed with Mr. Herrick to send him transportation from Chicago to said hotel and pay him $100 per month as chef, beginning June 1, 1908; that Herrick held himself ready to go as agreed upon the receipt of transportation, but received none, and later received word that all their help had been employed; that he was unable to secure other employment until July 28th.

The plaintiff in error, in addition to its argument on the facts, contends that if Mr. Herrick is entitled to recover at all, it is on a breach of contract, and not on a claim for wages. This was a ease of the fourth class in the Municipal Court. We think the point made is conclusively determined against plaintiff in error in Edgerton v. C., R. I. & P. Ry. Co., 240 Ill. 311. The court there said: “As to this class of cases under the Municipal Court Act, where no written pleadings are required, the same rule will govern as controls the form of actions before justices of the peace. We have held that ‘it is the well settled practice that in such courts (i. e., where written pleadings are not required) the party suing need not even name his action, or if misnamed that will not affect his rights, if upon hearing the evidence he appears to be entitled to recover, and the court has jurisdiction of the defendant and of the subject matter of the litigation. ’ ’ ’ (Citing authorities.)

'The judgment is affirmed.

Affirmed.