text:
    Stefan Halas, for the use of John Haluska, Plaintiff in Error, v. Narodni Slovensky Spolok, Defendant in Error.
    Gen. No. 15,793.
    Fraternal benefit societies—effect of failure to comply with reasonable by-laws. If a member in his contract agrees to be bound by all the laws of the society then or thereafter to be in force, his beneficiary cannot fasten liability upon the _ society if she admits that the reasonable by-laws of the society have not been complied with.
    Error to the Municipal Court of Chicago; the Hon William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Edmund D. Carter, for plaintiff in error.
    Joseph Sabath and Richard E. Kropf, for defendant in error.-
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error brought a suit in the Municipal Court to recover a benefit of $300, claimed by him on account of the death of his wife, under a certificate of membership issued to him by it.

Upon the trial, in the court below, the parties agreed as to certain facts, among them being:

1. That the defendant society is a fraternal organization, not for pecuniary profit, for the purpose of helping the people of the Slavonic race, now and hereafter residing in this county, commonwealth and elsewhere in the United States, in distress, sickness and death, etc.

2. That plaintiff in error became a member of one of its subordinate lodges on April 25, 1906, and by his contract of membership agreed to be bound by its laws, rules and regulations then in force, or which might thereafter be adopted by it.

3. That when plaintiff in error became a member, the bylaws provided that: “A legally married member, who has been in the ¡National Slavonic Society for six months last, is entitled, in case of the death of his wife, to receive the sum of three hundred dollars on account of his death benefit.” And that thereafter, the defendant legally adopted an amendment to its by-laws, providing that, where the wife of the member dies of cancer, etc., he shall not be entitled to the advancement of a benefit, unless at the time of her death he had been a member of the society for one year, such amendment being effective July 1, 1906.

4. That the wife of Halas, plaintiff in error, died February 11, 1907, and at that date Halas was a member in good standing.

5. That the death of his wife was first reported to the society on September 4, 1907,. at which time, and since July 1, 1906, there had been in force another by-law of the defendant to the effect that, if any member failed to report the death of his wife within six months from the date thereof, “he is not entitled to the advancement of the benefit aforesaid.”

Upon this agreed statement of facts, the court below found for the defendant, and plaintiff in error here seeks a reversal, contending that, notwithstanding said statement of facts, he is entitled to recover upon the ground that, though he had not complied with the requirements of the by-laws, above included in the agreed statement of facts, he was excused therefrom, because, he says, they were repugnant to the purposes for which the society had been incorporated; namely, to help its members in distress, and relieve and support them in misfortune, and that, as applied to the present case, such alleged bylaws were vMrcu vires and void.

We regard this contention of plaintiff in error as entirely untenable. It appears that plaintiff in error, in his contract of membership, agreed to be bound by all by-laws of the defendant society then in force, or which might thereafter be enacted. In light of the agreed statement of facts, in which it was expressly agreed by plaintiff, that at least one of these two requirements is reasonable, we think it perfectly clear that plaintiff in error was not entitled to recover. Royal Arcanum v. McKnight, 238 Ill. 349; Murphy v. Nowak, 223 Ill. 301; Scow v. Royal League, 223 Ill. 32; Supreme Lodge v. Meister, 78 Ill. App. 649; Bacon on Benefit Societies and Life Insurance, par. 403.

The judgment of the court below must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Zaidee Hunt, Plaintiff in Error.
    Gen. No. 15,800.
    Municipal Court—when without jurisdiction, of criminal cause. The Municipal Court of the city of Chicago has no jurisdiction to entertain a prosecution for an infamous crime.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion on rehearing filed October 3, 1911.
    Charles M. Thomson, for plaintiff in error.
    John E. W. Watman, for defendant in error; Otto B. Schram, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

A criminal complaint was filed against plaintiff in error in the Municipal Court of Chicago, charging her with larceny of several small articles of an aggregate value of $2.75 from Bothschild & Company on the 3rd day of July, 1909.

About the middle of that month, she waived a jury and was tried before one of the judges of that court, who found her guilty of the charge, and imposed a sentence of imprisonment for one day in the county jail, together with a fine of $4.50 and costs. This judgment and sentence she seeks to reverse in this court, urging, in argument, principally the ground that the evidence fails to sustain the conviction.

In the case of People v. Russell, 245 Ill. 268, our Supreme Court held that the offense here charged against plaintiff in error, and of which she was convicted, is an infamous crime, and can only be prosecuted upon indictment by a grand jury. Under this decision, the Municipal Court was without jurisdiction in this case, and, therefore, the judgment must he reversed.

Reversed.


text:
    John F. Devine, Administrator, Plaintiff in Error, v. Metropolitan West Side Elevated Railway Company, Defendant in Error.
    Gen. No. 15,815.
    1. Statute of Limitations—when new cause of action set up. If the real cause of action is the wrongful act, neglect or default which caused the death of the plaintiff’s intestate, failure within a year to set up the survivorship of widow and next of kin justifies the sustaining of the plea of the Statute of Limitations.
    2. Municipal Court—what statement of claim in fourth class eases 'must set up. There is nothing in the Municipal Court Act which justifies the assumption that it was intended to abolish the necessity of stating a cause of action in fourth class cases.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Stuart G. Shepard and Robert R. McCormick, for plaintiff in error; S. E. Thomason, of counsel.
    Addison L. Gardner, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an action in assumpsit upon an alleged contract of carriage between plaintiff’s intestate and the defendant, brought in the Municipal Court of Chicago-, to recover damages for the death of the deceased, who was a passenger on the railway of defendant in error.

Deceased, having fallen from the platform of one of the stations of the defendant to its track, was struck by a train and killed on ¡November 14, 1907. On-September 9, 1908, a praecipe and pauper’s affidavit were filed in the Municipal Court and a summons issued. The ad damnum was laid at $10,000, the suit being one of the first class. The declaration which was filed three days later did not allege that deceased left surviving a widow and next of kin. On December 3, 1908, additional counts were filed which also failed to allege the survival of a widow and next of kin. To these additional counts a general demurrer was filed, which was subsequently confessed by plaintiff. On March 3, 1909, on motion of plaintiff, the cause was amended by reducing the ad damnum to $1000, and changing the cause from an action of the first class to one of the fourth class, and, at that time, leave was given to plaintiff to file a statement of claim instant er, and the various counts of the declaration and the pleas were then stricken from the files. The plaintiff thereupon filed a statement of claim setting up the same facts as were contained in the declaration, and containing no allegation of the survival of the widow and next of kin. On June 29, 1909, the cause was called for trial. Defendant moved for a more specific statement of claim, which the court denied, holding that plaintiff’s statement of claim, as filed, was sufficient, and holding that he would, at the trial, allow evidence of the survival of the widow and next of kin, even though it was not set up in plaintiff’s statement of claim. Thereupon, the defendant orally pleaded the statute of limitations, and plaintiff orally demurred to such plea. The court overruled plaintiff’s oral demurrer, and as plaintiff elected to stand by it, the court entered judgment for the defendant.

Plaintiff in error contends that the court below erred because he claims that:

(1) His amendment of March 3,1909, merely reduced the ad damnumand as the statement cf claim then filed contained no new allegations the amendment related back to the commencement of the suit, and was not subject to the plea of the statute of limitations;

(2) That plaintiff’s pauper affidavits should have been considered by the court in determining whether or not the cause of action set out in the plaintiff’s statement of claim was the same cause of action as that originally sued upon;

(3) That the court erroneously ruled upon the oral demurrer to defendant’s oral plea to the statute of limitations, not because of any facts which were before it at the time, but because it had announced an intention to allow evidence at the time of the trial to he introduced to prove the survivor-ship.

We think it clear that the suit, as originally brought, was not an action in tort, based upon the statute, but was an action based upon an alleged breach of contract of safe carriage. We think it equally clear that the real cause of action, in this case, if any, was the wrongful act, neglect or default which caused the death of the deceased. Holton v. Daly, 106 Ill. 131; Crane v. C. & W. I. R. R. Co., 233 Ill. 259 ; Mooney v. City of Chicago, 239 Ill. 414. And that allegations of survivorship of the widow and next of kin were essential to the statement of this real cause of action. These allegations not having made within a year from the death of the deceased, this statute of limitations had run on the 3rd of March, 1909, at the time the last amendment was made, and the condition of the suit was then as if no defective action had been brought. Foster v. St. Luke’s Hospital, 191 Ill. 94; Mackey, Admn., v. Northern Milling Company, 210 Ill. 115.

We are not prepared to hold that it is not necessary that the statement of claim, filed in the Municipal Court in cases of the fourth class, should state a cause of action. Nothing in the Municipal Court Act justifies the assumption that it was intended to abolish the necessity of stating a cause of action in this class of cases. Pluard v. Gerrity, 146 Ill. App. 224. Such a statement is required under section 40 of the Municipal Court Act, and as it was not filed within the period provided in the statute for bringing the action, we think the court below was justified in sustaining the plea of the statute of limitations, and its judgment will, therefore, be affirmed.

Affirmed.


text:
    Bertha Poliakoff, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gem. No. 15,845.
    Appeals and errors—duty of Appellate Court to review evidence. In actions on the case for personal injury it is the duty of the Appellate Court to consider and weigh the testimony.
    Error to the Municipal Court of Chicago; the Hon, Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed October 3, 1911.
    John A. Rose and Frank L. Kriete, for plaintiff in error ; W. W. Gurley, of counsel.
    A. W. Fulton and Robert S. Cook, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an action of the fourth class brought by defendant in error in the Municipal Court of Chicago to recover for injuries alleged to have been received while alighting from a street car of the defendant company. A jury trial resulted in a verdict and judgment in favor of plaintiff for $450. Plaintiff in error seeks a reversal of the judgment below on two grounds: (1) That the verdict is against the weight of the evidence; and (2) that plaintiff’s attorney indulged in improper argument, prejudicial to defendant.

The claim of plaintiff is based upon an injury received on June 29, 1908, while alighting from one of defendant’s cars on West Forth avenue, near the corner of Forth Taiman avenne, Chicago. The fact that she was injured at the time and place in question is not controverted, but the conflict arises over the manner in which the accident occurred.

Defendant insists that plaintiff was guilty of contributory negligence, in that she got off the car while it was in motion, and against the warning of those in charge of it, while plaintiff claims that the car had stopped for her to alight, but, just as she was about to do so, it was wrongfully started. It becomes necessary, therefore, for us to consider the evidence upon this question, with a view of determining the right of plaintiff to recover.

The evidence on behalf of plaintiff as to the manner in which the accident occurred was limited to her own testimony. She testified that, at about midnight on the night in question, she was riding west on .Forth Avenue, intending to get off át Taiman avenpe, and told the conductor that she desired to so get off, whereupon he stopped the car; that she had been sitting in a seat near the front of the car, the conductor being at the rear; that a lady and child had gotten off ahead of her; that the car stopped at the west side of Taiman avenue, and that, as she put her foot on the running board to get down, and while still holding to the bar, but before she actually put her foot on the ground, the conductor began ringing the bell, the car started, and she fell off and was dragged.

On the other hand, six witnesses testified on behalf of the defendant as to the occurrence, and their testimony upon this point was directly contrary to that given by the plaintiff herself. They agreed when the car was in motion that the plaintiff actually jumped off, and that when this took place, the car was on the east side of Taiman avenue, and the car was going west. Two of the witnesses, both apparently distinterested, testified that, when she stood up as if ready to jump off, the conductor warned her not to get off until the car stopped. It further appeared from the testimony for the defense that, when plaintiff was picked up after the accident, she was found lying on the east side of Taiman avenue.

From the evidence, we conclude that the plaintiff, approaching Taiman avenue, notified the conductor of her desire to get off at that street; that he rang the bell shortly before the street was reached, and that the car began to slow down, but that, for some reason, plaintiff, fearing that she was being carried past the point where she desired to alight, became excited and actually jumped off the ear while it was in motion, notwithstanding the fact that the conductor called to her not to get off until the car stopped.

Of the six witnesses thus testifying for the defendant, three were employees of the defendant company, and counsel for plaintiff suggests that because of that fact their testimony ivas more favorable to the defendant than it should have been. If it be conceded that they were, because of their employment, to some extent interested for the defendant company, it is not less the fact, that the plaintiff herself is strongly interested in the outcome of the suit, and would, therefore, naturally he inclined to testify strongly in her own interests. We are not disposed to criticise the testimony of plaintiff, because of her direct pecuniary interest in the outcome of the suit, for she apparently testified to the facts as she believed them to be. However, the fact remains that her testimony is directly contradicted by the three employees of the railway company, whose direct interest in the outcome is apparently less than her own, and, in addition, by three other witnesses who were clearly disinterested.

That it is the duty of this court to consider and weigh the testimony in this kind of a case has been announced so many times that no authorities need be cited. In discharging this duty, we have carefully considered the entire testimony, and are forced to the conclusion that the verdict is clearly and manifestly against the weight of the evidence. This being so, we are not at liberty to let the judgment stand.

For the reasons given, the judgment will be reversed with a finding of fact.

Reversed with finding of fact.


text:
    Mary C. McGrath, Plaintiff in Error, v. Harry J. Snell et al., Defendants in Error.
    Gen. No. 15,860.
    Measure of damages—in action where tenants hold over without authority. If a tenant is notified before the expiration of his lease that if he desires to continue in possession he will be required to pay an advance rent and notwithstanding his explicit refusal to agree to pay such advance rent, continues in possession, he is liable in an action to recover for the holdover only for the fair rental value of the premises during the period of his possession after the expiration of his lease.
    Action in debt, Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    P. F. Murray, for plaintiff in error.
    John A. McKeown, for defendants in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error brought an action on an appeal bond given by defendants in error in the matter of a judgment in forcible entry and detainer against defendant in error Snell. Upon the trial of this cause in the court below, it was admitted that Mrs. McGrath and Snell had executed a written lease for the premises in question, expiring April 30, 1906, and that Snell continued in the possession of the premises for about twelve months thereafter; that a forcible entry and detainer suit was brought against him, in which he was adjudged guilty, and from which judgment he appealed to the Circuit Court, and gave bond with defendant in error, Edwards, as surety; that Snell was defeated in the Circuit Court to which he had appealed, and this suit was then brought upon his appeal bond.

The sole controversy in this suit is as to the amount due under the bond. Plaintiff in error contends that the basis of recovery should be rent at the rate of $37.50 per month, while the court, taking the defendant’s view, instructed the jury that it should assess the damages at a sum equal to the fair and reasonable value of the premises. The verdict reached by the jury represented damages at the rate of $27 per month (the rate theretofore paid under the lease between Mrs. McGrath and Snell), plus $3 costs.

We are asked to reverse the judgment substantially upon the ground that the court was wrong in its instructions to the jury as to the measure of damages, and also in admitting evidence as to the fair rental value of the premises during the period.

It appears that Snell was notified by a representative of plaintiff in error in April, 1906, that, if he wished to occupy the premises after the expiration of the lease on the 30th of that month, his rent would be $37.50 per month (instead of $27 per month theretofore paid under the lease), to which Snell replied, “I’ll not pay it,” whereupon he was told that then plaintiff in error would wish possession of the property at the expiration of the lease. As early as the 3rd of May following, plaintiff in error began her suit in forcible detainer, and, as appears by the appeal bond sued on in this case, recovered a judgment in her favor on the 8th of May, 1906.

From this judgment, Snell filed an appeal to the Circuit Court, and gave bond with defendant in error, Edwards, as surety, conditioned that Snell should “pay all rent now due and that may become due, before the final determination of said suit,” and “all damages and losses which the plaintiff may sustain by reason of the withholding of the possession of the premises,” etc., and costs.

Counsel for plaintiff in error in his brief contends that: “Where a landlord notified a tenant that, if he holds over he must pay an advanced rate, and the tenant remains in possession of the premises, he will be held to have assented to the payment of such advanced rate.” Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Griffin v. Knisely, 75 Ill. 412. Neither of these references seems to us controlling in this case'. This is not an action brought against the tenant only, but is based upon the bond which required that Snell should pay “all damages and losses, which plaintiff in error might sustain by reason of the withholding of the possession of the premises.” What were the damages and losses sustained ? Clearly, the fair rental value of the property during the period, and the costs. In the cases cited above, the defendants were treated as tenants, and paid rent as such. Here, plaintiff in error proceeded at once, after the expiration of the written lease, to dispossess Snell and procured a judgment against him in forcible detainer within eight days after the old lease expired. To hold Snell liable, as asked here, would be to hold him as a tenant at the new rate of $37.50 per month, notwithstanding his fiat refusal to continue as a tenant at that rate, and notwithstanding, also, the fact that, almost immediately after the expiration of the old lease, plaintiff in error elected to sue in forcible detainer upon the express ground that there was no contract of tenancy. To sustain the contention that Snell was liable at $37.50 per month, the court must hold that, by his remaining in the premises, there was established a contract relation-' ship between his landlord and himself, merely because his landlord had notified him what he would require, by way of rent, in the- event of a continuation of the tenancy, and this notwithstanding the fact that he expressly and positively dissented from the terms proposed. It takes two to make a contract. There might be circumstances where the acts of the party might be held to constitute an acceptance of the proposition, but certainly not in a case like this, where he expressly refused to be a party to the proposed contract. “The law never implies a promise against the express declaration of the party sought to be charged.” Lasher v. Heist, 126 Ill. App. 82.

The law is clearly laid down in Shunick v. Thompson, 25 Ill. App. 619, where, in discussing the measure of damages upon a bond similar to the one sued on in this case, the court says:

“Appellee was wrongfully kept out of the possession of the premises during the pendency of the appeal, and no good reason is perceived why the value of the use and occupation of the reasonable rental value during such pendency is not the correct measure of damages.
“The covenant of the condition is, to pay all damages and loss sustained by reason of the withholding; and that which he was deprived of was the use and occupation of the land, and clearly that which would compensate him and make him whole is the value of that of which he is deprived.”

For the reasons given, the judgment of the court' below is right, and it will be affirmed.

Affirmed.


text:
    Levi G. Hetzel v. George M. Fadner. Edwin C. Day et al., Appellees, v. George M. Fadner, Appellant.
    Gen. No. 17,561.

      Receiverships—when suits may be brought against receivers without leave of court. If with or without order of court a receiver takes property to which he is not entitled, he becomes a trespasser. If he commits a tort, neither his order of appointment nor an order under which he acts will protect him and in such cases he may he sued without leave of court and the court which appointed him cannot lawfully enjoin such suit.
    Bill for injunction. Interlocutory appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed October 3, 1911.
    Rehearing denied October 17, 1911.
    Statement by the Court. This is an appeal from an interlocutory order entered by the Circuit Court of Cook county on January 17, 1911, restraining one Fadner from prosecuting his suit at law in the Superior Court of Cook county against Edwin C. Day and John C. McPherson, who are receivers in this case, and Lewis W. Parker and Henry M. Hagan, solicitors for said receivers, all impleaded with Levi G-. Hetzel, complainant herein.
    On March 10, 1904, Hetzel filed his bill of complaint in the Circuit Court against Fadner, alleging that they were partners, and praying for a dissolution of the partnership, and for the appointment of receivers to wind up the partnership affairs, and for an injunction restraining defendant from collecting or receiving any of the debts due or owing to the firm and from applying any of the partnership funds to his own use. An in junctional order was immediately issued against defendant, and the cause referred to Master in Chancery Wait to report whether a receiver should be appointed, and whether the injunction should stand. On June 24, 1904, after taking testimony, the master made a report, recommending that a receiver he appointed and that the injunction stand. Five days later, Edwin C. Day and John C. McPherson were appointed receivers of the partnership property. Shortly after their appointment, they took possession of all the books, papers and other property alleged in the bill of complaint to be firm property, and also, against Fadner’s protest, took possession of his individual office and of a large amount in value of notes, papers and documents belonging to him individually.
    On July 12, 1904, Fadner filed a petition in the cause, setting up the appointment of the receivers, and alleging that, after the first of May of that year, and until the 29th of June, 1904, he had occupied certain premises in the Foanoke Building, under a lease running to him individually and expiring April 30, 1907; that on the 29th of June, the receivers, pretending to act as such, took forcible possession of said premises against his protest, and have since continued to refuse to vacate and turn over said premises to petitioner; that said premises did not at that time, nor when the bill was filed, in any way belong to the assets of the partnership, but belonged to the petitioner individually. Petitioner further alleged that numerous articles of personal property, consisting of stock certificates, promissory notes, agreement, chattel mortgages, abstracts, etc., of large value, together with other property, which he could not particularly describe, because it was in their possession, but which belonged to him personally, or as trustee for his wife and son, were taken by said receivers against his will and protest, and he asked that the receivers be compelled to bring the property into court, so that it might be determined which items of it belonged to him individually, and which to him, as trustee for his wife and son. The receivers and Hetzel filed separate answers to this petition, the receivers admitting the taking of the property, but stating that they had been informed by the complainant Hetzel that the documents and papers referred to belonged to the partnership and not to the petitioner individually, nor as trustee, while.Hetzel answered that, as to the personal property referred to, it was so mixed with property belonging to the partnership, that Hetzel was unable to designate in his answer which of it belonged to the partnership and which was the individual property of the petitioner.
    The cause having, in the meantime, been referred to Master Jamieson, an order was obtained on April 28, 1905, by Fadner, requiring the receivers to deliver all property pertaining to the case to said master (said receivers having previously refused to comply with the master’s request that they do so). On the 3rd of Hovember, 1905, Fadner filed another petition against Hetzel and the receivers, praying for an order directing the delivery of the individual property, then in the hands of Master Jamieson, to him. The receivers and Hetzel answered separately that they believed the property to be partnership property, and praying that Fadner be compelled to show affirmatively that each article claimed by him was his individual property.
    Upon this petition a hearing was had, resulting in the master making a special report to the effect that certain property, therein set out, belonged to Fadner, and should be restored to him. To this report Hetzel filed objections which, upon hearing, were overruled.
    After a hearing upon the merits,- Master Jamieson, on March I, 1908, filed his report, in which he stated that Hetzel had failed to show fraud on the part of Fadner, or that there was any necessity for the appointment of receivers, or the issuance of the injunction; also that the partnership had been dissolved on January 29, 1904, several months before complainant’s bill was filed. Both Hetzel and Fadner filed objections to this report, which were not disposed of by the court until July 1, 1909. The court in its final decree sustained many of the objections of Hetzel. Fadner appealed from the decree, and his appeal is now pending in this court as general number 15,935. In the meantime, the receivers had filed their reports, and also a petition, asking for compensation for their work. Fadner filed an answer to the petition. The petition, and report of the receivers, and the answer of Fadner, were referred to Master Zeisler for a report.
    At this stage, Fadner began an action at law in the Superior Court for $75,000 damages against Hetzel, Day, McPherson, Parker and Hagan. The case was at issue, and Fadner was pressing it for trial. Judge Ball of the Superior Court had peremptorily set it for trial on the 16th of January, 1911. On the 13th of that month, the attorneys for defendants served notice that the next day they would appear before Judge Tuthill and ask for an order in the chancery cause restraining the prosecution of the suit at law in the Superior Court. Fadner then filed a petition for a change of venue from Judge Tuthill upon the ground of his alleged prejudice against Fadner, and this petition was presented to Judge Tuthill before a hearing was had upon the motion of the other side for the injunction. On January 16, 1911, Judge Tuthill denied the application for the change of venue, and issued an injunction against the prosecution of the suit at law, from which this appeal was taken.
    Harris F. Williams and Lee D. Mathias, for appellant.
    James J. Barbour and George G. King, for appellees; F. H. Teude, of counsel for Edwin C. Day.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Fadner and Hetzel were partners. Hetzel filed a bill in the Circuit Court to dissolve the partnership, and for the appointment of receivers and an accounting. Receivers were appointed of the partnership property. Subsequently, Fadner began a suit at law in the Superior Court against Hetzel and the two persons who had been appointed receivers, and their attorneys, alleging in his declaration that the defendants, conspiring together to injure and destroy his business and to receive and keep his goods, chattels and effects, and falsely and maliciously pretending they had a right to do so in behalf of the two defendants who were receivers in the chancery suit of the assets of the partnership, and well knowing that they had no right or authority to do so, came to the office of the plaintiff, and with force and arms, seized, took and carried away a large quantity of the goods and chattels belonging to plaintiff, and of great value, and converted the same to their own use.

The second count of the declaration charged the defendants in trover for the conversion; the third count in trespass; and the fourth in case. May the Circuit Court, having jurisdiction of the equity case, and consequently of the partnership property, enjoin the prosecution of this suit at law? We think not. Upon the appointment of the receivers, they became vested with the title to the partnership property of the partners, but not to the individual property of Fadner. If the receivers wrongfully assumed to take and hold property not embraced in the order of their appointment, they became trespassers and subject to an action by the rightful owner for damages. 34 Cyc. 410; Hills v. Parker, 111 Mass. 508; Kirk v. Kane, 87 Mo. App. 274.

Receivers are not protected by their official character against an action in tort. If wrongdoers, they are liable personally, and leave of court to sue them for such misconduct is not necessary. If they take property, not included in the litigation, they become liable as trespassers, and an order of the court, authorizing the taking of property not included in the litigation would be beyond its jurisdiction, and no protection to the receivers. Anderson on Receivers, 329; Gutsch v. McIlhargey, 69 Mich. 377; Kenney v. Ranney, 96 Mich. 617; Bowman v. Hazen, 69 Kans. 682; 77 Pac. 589.

Appellees urge, among other things, that appellant by coming into the chancery cause by petitions alleging ownership (individually and as trustee) of the property in question, had elected his forum, and, therefore, could not go into another to procure the same relief. But we do not find that the questions raised in the suit at law have been or can be litigated in the chancery cause.

The gist of Fadner’s suit at law for damages is that the defendants therein named intentionally, wilfully and- maliciously took his- individual property for the purpose of ruining his business, and knowing that it had no connection with the partnership assets. To recover in this suit, it will be necessary for the proof to sustain these allegations. If the plaintiff cannot prove the averments in his declaration, he must fail, but he has a right to have the questions heard and determined by the jury.

The injunction was improvidently issued, and the order granting it will be reversed.

Injunction order reversed.


author: Mr. Justice Clark

text:
    William O. LaMonte, Plaintiff in Error, v. William Kent and Henry S. Fitch, Defendants in Error.
    Gen. No. 14,809.
    1. Slander and libel—toliat defense to action. The truth of the publication when made with good motives and for justifiable ends is a complete defense to an action for libel.
    2. Pleading—effect of surplusage. If a plea in an action for libel sets up a good defense, surplusage contained therein will not render it vicious.
    3. Pleading—when plea purports to he to whole declaration. Held, that the plea in this ease to a declaration in libel from its reading in the entirety purported to be to the whole declaration.
    4. Pleading—when defendant entitled to judgment upon overruling of demurrer to pleas. Where a demurrer to one of several pleas is overruled (which plea answers the whole declaration) and the plaintiff elects to stand by his demurrer, the defendant is entitled to judgment.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 3, 1911.
    Rehearing denied October 17, 1911.
    Edward H. Morris, for plaintiff in error.
    John Maynard Harlan and Lewis W. McCandless, for defendants in error.
   Mr. Justice Clark

delivered the opinion of the court.

In 1896 the plaintiff in error was a candidate for the office of member of the .Legislature from the Fifth Senatorial District in Illinois. The defendants in error together with W. D. Washburn issued a circular to the voters of the district, in which the following language was used:

“Many of our citizens, feeling most deeply the disgrace that had been thrust upon them in the nomination of Wm. 0. LaMonte * * * a man who has been caught in embezzlement, in passing bogus drafts * * * have induced Mr. Joseph Powell to run as an Independent Eepublican by petition. In voting for Mr. Powell you do not, in any sense, endanger the Presidential or Gubernatorial ticket, and you will send a clean, capable and aggressive man to Springfield, instead of one unfit for any place of trust. Tou will teach machine politicians,, in this district, at least that they must present the names of capable and honest nominees if they expect popular support.”

Suit was brought by the plaintiff in error against the defendants in error and Mr. Washburn for libel, it being later dismissed as to Mr. Washburn. The original declaration was filed October 27, 1896, and an amended declaration April 14, 1905. The amended declaration is in three counts, to which a plea of the general issue was filed by the defendants in error, a similiter to the plea being filed by the plaintiff in error. There were also filed several additional pleas. In the sixth plea, which is the one with which we are now particularly concerned, the following language is used:

“That at "and before the time .of composing, writing, printing and publishing of the said supposed libel in the third count of said amended declaration mentioned and also before the composing, writing, printing and publishing of the said supposed words in the introductory part of this plea mentioned and in the first and second counts of said amended declaration mentioned the plaintiff was a candidate for election to the office of representative to said General Assembly for the said Fifth Senatorial District and these defendants acting in behalf of said committee and for the purposes and objects above set forth and none other, caused to be investigated the record of the plaintiff, that these defendants in pursuance of the objects aforesaid caused to be composed, written, printed and published the results of their said investigation of the record of said plaintiff, it then being a matter of great and vital interest to the public that the aforesaid objects and purposes of said committee be carried into effect, and it then being necessary for the purpose of carrying into effect the aforesaid purposes and, objects of said committee that the public should be informed of the record of the plaintiff.
“That before the time of the composing, writing, printing and publishing of the said supposed libel in the third count of said amended declaration mentioned and also before the composing, writing, printing and publishing of the said supposed words in the introductory part of this plea, and in the first and second counts of said amended declaration mentioned, to-wit: on the 20th day of October, A. D. 1896, the said plaintiff was in the employ of the City of Chicago, Illinois, as Chief Clerk in the Bureau of Water of the Department of Public Works of said city, and to wit: on May 1st, A. D. 1896, said plaintiff made, executed and delivered to one William D. Kent, then Commissioner of Public Works of said city, a. certain requisition or order for the payment of the sum of Five Hundred Dollars ($500) to said plaintiff, said requisition or order representing that said sum of Five Hundred Dollars ($500) was for the purchase price of Twenty-Five Thousand (25,000) two cent stamps, and that in compliance with said requisition or order said Commissioner of Public Works thereupon signed and delivered a voucher to said plaintiff authorizing one .Oscar D. Wether ell, then Comptroller of said city, to issue an order or warrant upon Adam Wolf, then Treasurer of said city, for the payment of said sum, and that said comptroller did thereupon issue said order to the said plaintiff and upon presentation of same to said Treasurer of the said City of Chicago, the sum of Five Hundred Dollars ($500) was paid to said plaintiff and that said plaintiff fraudulently converted said sum of money so paid to him by the City of Chicago by its said Treasurer to his own use.”

The plea closes as follows:

“Wherefore these defendants at the time mentioned in said amended declaration in, etc., composed, wrote, printed and published of and concerning the plaintiff the said several words imputing to the plaintiff embezzlement in said counts of said amended declaration mentioned without malice, as it was lawful for them to do for the cause aforesaid, and this these defendants are ready to verify.
“Wherefore they pray .judgment if the plaintiff ought to have his aforesaid action against them.”

To this plea, as heretofore stated, a demurrer was interposed by the plaintiff in error, as well as to the second plea, reference to which will be made hereafter. Both demurrers were overruled and, plaintiff in error electing to stand by his demurrers, judgment was entered in favor of the defendants in error and against the plaintiff in error for costs.

We are now asked to reverse the judgment, the error alleged being that the court improperly overruled the demurrers. In addition to the language quoted from the plea there was incorporated a large amount of matter with respect to the services the defendants in error were endeavoring to render to the public in preventing the election of plaintiff in error, and also a long extract from a newspaper publication with regard to his acts. The argument of the plaintiff in error is largely based upon the supposition that the plea is an assertion by the defendants in error that the communication upon which the alleged libel is based was privileged, and many cases are cited in the brief upon the proposition that falsely imputing crime to a candidate for office is not privileged but is libelous per se. . The defendants in error, on the other hand, insist that the plea is not one of privilege but of justification, and that all of the extraneous matter to which we have referred, but which we do not quote, is proper for that -reason.

Article II, section 4, of the Constitution of 1870 provides :

‘ ‘ Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that ; liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives and, for justifiable ends, shall be sufficient defense.”

It will be noted that portions of the plea which we have quoted assert the truth of the alleged libelous' matter. This under the constitution, if proven, is a.' complete defense, provided the publication was made with good motives and for justifiable ends. The plea also stated in substance that the plaintiff in error was a candidate for office and that the defendants in error were opposing him because in their opinion he was an unfit man. If he was unfit, then their motive was good and the end sought was justifiable. Commonwealth v. Clap, 4 Mass. 163; White v. Nicholls, 44 U. S. (3 How.) 266. The question before us, therefore, is whether the inclusion in the plea of the large number of other statements renders the plea obnoxious to a demurrer. In Burnap v. Wight, 14 Ill. 301, it was stated with reference to improper and irrelevant averments in a pleading:

“They may be stricken out on motion; or the court will not allow any evidence to be given under them on the trial. It is well settled that where unnecessary allegations are made in a declaration, which are foreign and irrelevant to the cause, they will be rejected as surplusage, and need not be proved; nor will they vitiate even on special demurrer.”

See also Smith v. Alexander, 128 Ill. App. 507.

Under these rulings, we are constrained to hold that the large amount of surplusage contained in the sixth plea does not vitiate it as a plea; that inasmuch as it avers the truth of the statement alleged to be libelous and asserts that the publication was made with good motives and for justifiable ends, it constitutes a sufficient basis for the introduction of proof upon that question; that if such truth were established at the trial it would constitute a complete defense to the plaintiff’s claim.- The plaintiff further contends that the special demurrer should have been sustained because the conclusion of the plea is faulty in that the plea does not purport to be to the whole declaration. We think, on the other hand, from a reading of the plea that it does purport to be to the whole declaration, and that the contention of the plaintiff in error in this regard is not sustained. It follows, therefore, that the trial court did not err in overruling the demurrer.

The second plea to the amended declaration is based upon the proposition that in the first and second counts of the amended declaration a new cause of action is stated and that the statute of limitations has run. In the view we take of the matter it is unnecessary for us to discuss the assignments of error based upon the action of the court in overruling a demurrer to this plea, because it is the established law of this state that where a demurrer to one of several pleas is overruled (which plea answers the whole declaration) and the plaintiff elects to stand by his demurrer, the defendant is entitled to judgment.

We are indebted to the attorney for the plaintiff in error for a list of many cases in this state establishing the rule: Dana v. Bryant, 1 Gilman, 104; Ward v. Stout, 32 Ill. 400; Bissell et al. v. City of Kankakee, 64 Ill. 249; People v. Commissioners of Bug River Special Drainage District, 189 Ill. 55; County of Pike v. Cadwell, 78 Ill. App. 201; Lowenstein v. Franklin, 122 Ill. App. 632; Adams v. Bruner, 152 Ill. App. 123.

The overruling of the demurrer to the sixth plea and the election of the plaintiff to stand by the demurrer, disposed of the case.

Affirmed.


text:
    John W. Donnelly, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,520.
    1. Verdicts—when not disturbed. A verdict will not be set aside when there is a contrariety of 'evidence and the facts and circumstances by a fair and reasonable intendment will authorize the verdict notwithstanding it may appear to be against the strength and weight of the testimony.
    2. Evidence—when of custom competent. Notwithstanding the declaration did not allege the existence of the custom, held^ that it was proper in an action for personal injuries to show a custom by which street cars and other vehicles gave right of way to fire department apparatus .and employes when going to a fire.

      3. Evidence—competency of adjudication of insanity. Inquisitions of lunacy, as well as inquisitions of post mortem, and others, are admissible though not conclusive.
    4. Evidence—what cross-examination of expert proper. An expert witness may be cross-examined as to the basis of his opinion and as to whether the authorities do not lay down a different rule, and the like.

      5. Appeals and errors—what essential to present on review defense of statute of limitations. The defense of the statute of limitations cannot be relied- upon on review unless the assignments of error rely thereon.
    6. Injuries act—when cause of action accrues. The cause of action given by this statute does not accrue until death ensues and until death results the limitation period does not begin to run.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    S. S. Page and Watson J. Ferry, for appellant.
    Henry S. Wilcox, for appellee; Charles C. Spencer and Jesse Wilcox, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This case is before this court a second time, and there have been two trials before the same judge in the court below. The opinion of this court on the prior appeal will be found reported in 131 Ill. App. 302.

The case arises out of a collision on March 29, 1897, between a hose carriage belonging to the Citv of Chicago, and an electric car of the appellant. The appellee’s theory of the accident and statement of the manner in which it occurred is as follows:

“About nine o’clock in the evening of the injury to Thomas Wren, an alarm of fire was received at the engine htmse where he was stationed, from a point southwest of the said fire house; as soon as the alarm was received, the horses were hitched to the apparatus and as they stood with their heads just out of the door, facing on Wentworth avenue, and with a bright light shining upon and from behind them, the south-bound car of the appellant came up and was standing on the track in front of the door of the fire house. Thereupon Lieutenant Vollman, standing in front of the door and within about twenty feet of the car whistled and ‘hollered’ as loudly as he could, and Lieutenant Stoltz also in front of the door and within the same distance from the car whistled with his fingers and ‘hollered’ in full sight of the motorman, for the purpose of warning him that the fire apparatus was about to come out on the street.
“It was the custom under such circumstances and under the circumstances that succeeded, for the street cars to stop still and give the fire apparatus the right of way on its way. to the fire. But upon this occasion the south-bound car was started up by its motorman and continued south without stopping. Thereupon, the hose carriage with the deceased and Captain Tobin upon the driver’s seat and Vollman and Stoltz on the rear step was driven out of the fire house and onto the northbound or east track and then southward on said track, endeavoring and expecting to pass the said south-bound car, the gong on the hose cart and on the engine behind it being rung loudly enough to be heard two blocks, and the firemen shouting to the street car to let them pass. At Fifty-fifth street, which is a boulevard, the car, according to some witnesses, stopped, but started again immediately with the hose cart about twenty or twenty-five feet behind it. From Fifty-fifth street south the street was torn up for repairs from the outermost rails to the curb, there being a sharp drop of from 8 to 12 inches from the rail to the street, and the space occupied by the car tracks was the only safe place in the street for the fire apparatus to be driven at the necessary speed.
‘ ‘ The street car then proceeded onto the regular stopping place on the north side of Fifty-seventh street, the hose cart following it closely all the way in-the other tracks, and Captain Tobin, who was driving, endeavoring to get ahead of the south-bound car and ringing the gong, and the firemen ‘hollering’ to the crew of the car. The deceased, Thomas Wren, was the regular driver of the hose carriage and was driving the team at the time the hose carriage left the fire house and was proceeding south, but at some point on the road, Captain Tobin, who was his superior officer and sat on the driver’s seat with him, having put on his own coat, and for the purpose of enabling Wren to put on his coat, as was usual, reached over and took the lines and drove the team from that time up till the time of the accident. As the south-bound car came to a stop at Fifty-seventh street, as aforesaid, the hose carriage was driven by Tobin even with and in front of the car, and Tobin in an endeavor to drive his horses and apparatus onto the south-bound track and in front of the south-bound car, which was then stationary, turned his horses onto, or partly onto the south-bound track. Meanwhile the north-bound car was approaching from the south and with nothing to obstruct its view of the situation nor to prevent its motorman and conductor from hearing the fire gong and the shouting and the clattering of the horses’ hoofs or from seeing the situation. As Captain Tobin turned the horses partly onto the southbound track and partly in front of the south-bound car, the motorman started up the south-bound car again so that it became necessary for Tobin to save his horses from being struck by the car to swing them back onto the north-bound track again. Meantime the north-' bound car, instead of stopping, continued to run down upon the hose cart. Seeing this, Tobin endeavored to swing his horses into the torn up portion of the street east of the car track, but did not have time. The northbound car came down upon the hose cart with force sufficient to break back its own iron dashboard and controller, and drove the hose cart backwards and against the south-bound car.”

Plaintiff’s intestate was thrown upon the ground and received an injury to his head. He continued to work for the City in the Fire Department for some time thereafter, but later on was held to be insane, and it is claimed by the appellee that the insanity was due to the injury received. It is also alleged to have been the cause of his death, that event occurring on May 7, 1900. Suit was brought on May 6, 1902. There was a verdict of $5,000, upon which judgment was entered.

Three grounds of error are alleged in appellant’s brief: First, that the verdict is not justified by the evidence, being against the overwhelming weight of the evidence; second, that errors were made in the admission of improper and the exclusion of proper evidence; and third, that the jury was not properly instructed.

We have carefully examined the abstract of record and the arguments of counsel upon the proposition that the verdict is against the weight of the evidence. We find sharp conflict between the witnesses upon many material points. We do not feel called upon to refer to all of these points in this opinion, as we believe no good purpose could be subserved thereby. Extreme care in guarding the rights of the litigants in this proceeding is shown in the record to have been exercised by the learned trial judge, and we do not think the verdict so manifestly against the weight of the evidence that it should be set aside. The evidence of the appellee when considered by itself is, in our opinion, clearly sufficient to sustain the verdict. We are therefore governed by the often repeated rule that a verdict will not be set aside when there is a contrariety of evidence, and the facts and circumstances, by a fair and reasonable intendment, will authorize the verdict, notwithstanding it may appear to be against the strength and weight of the testimony. Chicago City Railway Co. v. McClain, 211 Ill. 589.

Objection was made' upon the trial on the examination of one of the appellee’s witnesses, Lieutenant Vollman, to his being allowed to testify as to a custom existing upon the city’s streets whereby street cars and other vehicles gave the right of way to the fire department apparatus and employes when going to a fire. The objection was based upon the want of an allegation in the declaration of the existence of such a custom, and the objection was overruled. We think that the court’s action was proper. Later on other witnesses testified as to this custom, over the objection of appellant that the evidence was incompetent, irrelevant and immaterial and that no proper foundation had been laid. These objections also, were overruled, as was a motion to strike the testimony from the record. Even if these motions should have been sustained on the grounds stated, which we do not hold, we think that no injury was done the appellant by allowing the answers to stand. It is a matter of almost common knowledge that the right of way is by universal consent and almost of necessity given to the employes of the city who are taking the fire department appliances and men to a fire, and that gongs and bells are provided so as to warn people upon the streets of the danger.

Objection is also made to the reception of documentary evidence in connection with the adjudication of insanity of the decedent. We do not think that error was committed in this regard. The judicial determination in the case was by no means conclusive, but it was competent to be considered. The authorities seem to be uniform that inquisitions of lunacy, as well as inquisitions of post mortem and others, always have been admissible though not conclusive. United States Insurance Co. v. Vocke, 129 Ill. 557.

Some question is raised as to the accuracy of. the statement included in the hypothetical question propounded to expert witnesses for the appellee. We think, however, that the facts assumed were fairly within the range of the testimony. Nor do we find any error in the court’s refusing to sustain an objection to a question propounded on cross-examination of one of the expert witnesses of the appellant. The question was within the rule laid down in Chicago Union Traction Co. v. Ertrachter, 228 Ill. 114, where it was held-that an expert witness may be cross-examined as to the basis of his opinion and as to whether the authorities do not lay down a different doctrine, and the like.

Questions are raised also as to the giving of certain instructions at the request of the appellee, and the refusing to give certain instructions as tendered by the appellant. Thirty-three instructions were tendered by the appellant and given. These, with the ten tendered by the appellee and given, fully advised the jury as to their duty in the premises. We think no improper instruction was given on behalf of the appellee, and that the two instructions tendered by the appellant which were not given were properly refused.

A considerable portion of the reply brief of the appellant is given to a discussion of its claim that the present suit cannot be prosecuted as being barred by the Statute of Limitations, and our attention is again called to the matter by the petition for rehearing. No assignment of error is based specifically upon the proposition that the suit is barred by the Statute of Limitations. In the petition for rehearing it is insisted that assignments 1, 2, 3 and 13 are sufficient to warrant the court in passing upon the point mentioned. These assignments are:

“The verdict is against the evidence.
“The verdict is against the weight of the evidence.
‘ ‘ The verdict is against the law.
“The trial court erred in refusing to instruct the jury at the close of all the testimony in the case to find the appellant not guilty.”

The contention is not specifically covered by any ground urged on the motion for. a new trial, and we think on the authority of Berry v. City of Chicago, 192 Ill. 154, that it is not raised by any assignment of error. In that case the court held:

“Every error must he specifically pointed out in the assignment of errors so clearly that from the showing error is manifest, and an error not assigned is not open to review,”

thus reaffirming what was said in Skakel v. People, 188 Ill. 291; Swift & Co. v. Fue, 167 Ill. 443; Gibler v. City of Mattoon, 167 Ill. 18.

Assuming, however, that error is well assigned, we think there is no merit in the contention.

Until the passage of the statute chapter 70 of the revised laws, compensation for causing death by wrongful act, neglect or default, was not allowed, the common law rule in this respect being in force in this state. This statute was passed in 1853. The first section is:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such- case the person who or company or.corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”

The second section after reciting that the amount recovered shall be for the exclusive benefit of the widow and next of kin of the deceased, had, at the time the suit before us was brought, a provision that “every such action shall he commenced within two years after the death of such person.” In the motion for rehearing the appellant urges upon us that inasmuch as it appears on the face of the declaration that more than two years elapsed from the time of the alleged injury to the bringing of this action, and that between the time of the alleged injury and Wren’s death more than two years elapsed, his right of recovery for damages for such injury had been defeated by the operation of the limitation statute, and hence the right of his personal representative to recover was also defeated. In other words, their contention is that if a person is injured through the negligence of another and death does not ensue for two years after the date of the accident, there can be no recovery by the personal representative of the deceased. We do not so construe the statute. The language is, “Whenever the death of a person shall be caused by the wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then,” etc.

In our opinion, this language refers to the right of the injured person as it existed immediately after the accident and not to the situation as it would exist more than two years after the accident, when the right of the injured party had expired by the limitation. The action for the death is different from the action by the injured man himself, in this, that two things must exist; the injury must have been sustained because of the neglect or default of the defendant, and the person injured must have died. It is not until death occurs that the right of action in the widow and next of kin through the administrator exists.

We hold, therefore, that the only limitation on the right of the personal representative of the injured person to sue is that contained in the act which gives the Tight to the personal representative to sue, namely two years (since July 1, 1903, one year) from the date of the death" of the person injured. In other words, as stated in Prouty v. City of Chicago, 250 Ill. 223, the right of action is statutory and not a survival of decedent’s right of action for personal injury.

It follows from what has been said that the judgment must be affirmed.

Affirmed.


text:
    The Independent Filter Company, Plaintiff in Error, v. Charles Hilbig and Henry Widmann, Defendants in Error
    Gen. No. 15,663.
    1. Garnishment—token defendant not estopped to deny indebtedness. If a defendant in garnishment prior to action instituted admit liability to the judgment debtor and file an answer containing a like admission, he is not thereby precluded or estopped to show that he was not so liable to the judgment debtor if it is established that his admissions and answer were induced by the solicitation of the plaintiff and his attorney and were not predicated upon correct advice.
    2. Garnishment—extent of recovery. A creditor may by garnishment recover only such indebtedness as his debtor might recover in an action of debt or in an action of indebitatus assumpsit.

    3. Garnishment—wkat not subject to. A joint indebtedness cannot be garnished in a suit against one of the joint creditors.
    4. Estoppel—wkat essential to application of doctrine. A man is only precluded from alleging the truth when his assertion of a falsehood or his silence has been the inducement to action by the other party, which would result in loss if the opponent was permitted to gainsay what he had before asserted, or induced the other to believe by his acts.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Statement by the Court. On February 3, 1908, Henry Widmann, the defendant in error herein, called at the office of the Independent Filter Company, the plaintiff in error, and stated that he proposed buying some machinery of the kind sold by the plaintiff in error, to place in a brewery which he had bought at Laramie, Wyoming. He is further alleged to have stated that he owed upon the purchase price of the brewery the sum of $2200 to Charles Hilbig, from whom he had bought it. Mr. Groldman, president of the plaintiff in error, informed Widmann that Hilbig was indebted to his company in a considerable amount, and asked Widmann if the latter would help the company to get its money. Widmann agreed, with the understanding that he was to be put to no trouble or expense. G-old-man then promised that Widmann shauld be put to no cost, and that his company would retain a lawyer for him who would file his answer in court without expense, it being the intention of the Independent Filter Company to begin an attachment suit against Hilbig, making Widmann garnishee defendant therein. This agreement and arrangement appear to have been made at the office of Mr. Sidney Stein, one of the attorneys for the plaintiff in error. Widmann stated to Mr. Stein that he had purchased the brewery; that he had paid down a portion of the purchase price, and was going back to Laramie to pay the balance and get his deeds. Thereafter suit was brought in attachment, and Widmann was served as garnishee. Mr. Elias Mayer, one of the attorneys for the plaintiff, drew up his answer, which was signed by Widmann. The name of Robert E. Crowe was attached as attorney for Widmann, and the answer was filed without cost to Widmann. Service was had upon Hilbig by publication, the certificate of publication being filed March 15, 1908. The record further shows that the answer of Widmann was filed February 15, 1908; that Widmann meantime went to Laramie, and on February 6th paid to Charles Hilbig, in the presence of his wife, the sum of $625, and gave a promissory note payable to the order of Hilbig and his wife for the balance of the purchase price, upon which a deed and bill of sale were delivered to Widmann and he took possession of the premises. In August, 1908, suit was brought by Charles and Ida Hilbig on the note, and the attachment proceeding now under consideration was set up by Widmann as a defense. The court in Wyoming held that it was no defense, and judgment was rendered against Widmann. Later Bobert E. Crowe withdrew as attorney for Widmann, and other attorneys entered their appearance for him in the case before us; on December 15, 1908, filed an amended answer, and on February 11, 1909, a second amended answer. In these two amended answers Widmann denied that he was indebted to Charles Hilbig- and asserts that he was misled in the making of the first answer. The facts and circumstances are set up with considerable fulness. Upon hearing there was a finding in favor of Widmann and he was discharged as garnishee, judgment being entered against the plaintiff for costs.
    Stein, Mayer & Stein, for plaintiff in error; Harry M. Rosenblum, of counsel.
    Adams & Candee, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

A reversal of the judgment is asked, the reasons as stated being that Widmann, having once admitted his liability, “must show enough to discharge him,” and that he has not done so; that the payment to Hilbig of $625 after Widmann had been served as garnishee is an admission that that amount was due him at the time garnishee summons was served; that because the plaintiff in error was induced to incur the expense of litigation in reliance upon the statements of Widmann, Widmann is estopped from denying the truth of such statements; that improper evidence was offered; that the finding was against the weight of the evidence.

It clearly appears from the record that in consenting to allow himself to be made garnishee defendant in the attachment suit, the defendant in error was acting wholly under the guidance of the plaintiff in error and its attorneys and at their solicitation. The original answer filed was prepared by the attorneys for the plaintiff in error and was necessarily in English. The defendant in error, who was a G-erman and a recent arrival in this country, testified that he did not understand the purport of it. If the actual situation as disclosed subsequently by the testimony had been stated by the defendant in error to a competent attorney acting solely in his interest, he would never have been allowed to sign this answer. It is perfectly apparent that the contract for the purchase of the brewery had not been carried out but was still executory. It has been held by this court that a creditor may by garnishment recover only such indebtedness as his debtor might recover in an action of debt or in an action of indebitatus assumpsit. Ryan et al., for use, etc., v. Kimberly et al., 118 Ill. App. 361. It is clearly apparent also that Hilbig could not at the time the attachment suit was brought have recovered in an action against Widmann; until a deed of the realty had been made and delivered and the possession of the personal property turned over to Widmann no action at law would have lain. It further appears that the title to the property expected to be conveyed was not in Hilbig alone, but in him jointly.'with his wife. It cannot be said that the plaintiff in error lost anything or was injured in any way by the statements made to it by Widmann, even if it be conceded—which the record does not warrant—that such statements were false. It is difficult to see, therefore, how the doctrine of estoppel which is invoked by the plaintiff in error can have any possible bearing upon the case. The principle runs through the whole doctrine of estoppel that a man is only prevented from alleging the truth when his assertion of a falsehood or his silence has been the inducement to action by the other party, which would result in loss if the opponent was permitted to gainsay what he had before asserted, or induced the other to believe by his acts. (Patterson v. Lytle, 11 Pa. 53.) In Bigelow on Estoppel, 570 (5th ed.), it is said that the following elements must be present in order to establish an estoppel by conduct:

1. There must be a false representation or concealment of material facts.

2. The representation must have been made with knowledge of the facts.

3. The party to whom it was made must have been ignorant of the truth of the matter.

4. It must have been made with the intention that the other party should , act upon it.

5. The other party must have been induced to act upon it.

The only action of the plaintiff in error which could be said to have been based upon what was told its president by Widmann, was the beginning of the suit against Hilbig and the joining of Widmann as garnishee defendant. The plaintiff in error lost nothing by this proceeding,—it still had its claim against Hilbig. There was no inducement on the part of Widmann which caused this action. On the other hand, the plaintiff in error induced Widmann to permit himself to be made a garnishee defendant in the attachment suit, and induced him to permit its attorneys to file his answer for him. When we come to consider the, amended answer of Widmann which was filed by attorneys selected by himself and the testimony regarding its allegations, it is clear, if he could be considered to be indebted in any way to Charles Hilbig the indebtedness was to Charles Hilbig and Ida Hilbig jointly and not to the former alone. It has many times been held that a joint indebtedness cannot be garnished in a suit against one of the joint creditors (Commercial Natl. Bank v. Kirkwood, Miller & Co., 184 Ill. 139).

As in onr opinion the defendant in error may not be held because of any statements he made to the officers and attorneys of the plaintiff in error prior to the beginning of the attachment suit, whether such statements were true or not, and being further of the opinion that there was no indebtedness existing between Hilbig and Widmann, we need not consider the other points raised by the plaintiff in error in its brief.

The finding of the Municipal Court was proper.

Affirmed.


text:
    Judson Freight Forwarding Company, Plaintiff in Error, v. Delaware, Lackawanna and Western Railroad Company, Defendant in Error.
    Gen. No. 15,674.
    Common carriers—when forwarding company entitled to lien. If a forwarding company undertakes to transport merchandise and delivers the same to a carrier, paying the freight but providing for reimbursement through the medium of a draft attached to the bill of lading, the forwarding company has a lien upon the property until the draft is paid, and if the railroad company makes delivery without payment of the draft the forwarding company may recover.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed October 3, 1911.
    Parker & Hagan, for plaintiff in error; George G. King, of counsel.
    Adams & Candee, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

This case was submitted to the court without a jury, upon an agreed statement of facts, and the finding was for the defendant in error, being the defendant below, upon which finding judgment was rendered.

The statement of facts shows that on November 19, 1907, a Mrs. Bailey delivered a quantity of household • goods to the Stringer Storage Company, owner of a public warehouse at San Francisco, with directions to ship the same to her at New York. Thereupon the storage company made a contract with the plaintiff in error for the shipment of the goods, the plaintiff in error being a forwarding company. A release was signed by the storage company limiting the liability of the forwarding company to $5 per cwt. in case of loss or damage, and a receipt was given by the forwarding company to the storage company somewhat in the language of a bill of lading, in which the weight and rate of transportation were set forth. The forwarding company, being the plaintiff in error here, thereupon caused the goods to be transported to Chicago, prepaying the transportation charges to the railroad company. The goods were then transported from Chicago to New York over the lines of the New York, Chicago & St. Louis Eailroad Company and the Delaware, Lackawanna & Western Railroad Company, the charges being prepaid to New York. The bill of lading issued by the first named railroad company shows that the consignee was “Order Judson Freight Forwarding Co. NFY. Mrs. E. Bailey, 436 E. 57th St. Hotel St. Eegis, New York, N. Y.” There is contained among its printed conditions this language:

“If the word ‘order’ is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of the party to be notified of the arrival of the property, the surrender of this Bill of Lading properly endorsed shall be required before the delivery of property at destination. If any other” than the aforesaid form of consignment is used herein, the said property may, at the option of the Carrier, be delivered without requiring the production or surrender of this Bill of Lading.”

The defendant in error attached this bill of lading to a draft upon Mrs. Bailey, the bill of lading then having upon it an endorsement signed by the plaintiff in error, and reading as follows: “Deliver to Mrs. E. Bailey or order upon surrender of this Bill-of-Lading.” The amount of the draft was $112.20, that sum being the amount claimed in this suit to be due the plaintiff in error on account of a lien which it asserts upon the goods. From the statement of facts it would appear that this amount was what had been expended by the plaintiff in error in the payment of the railroad freight charges from San Francisco to New York. The statement of facts further shows that the goods were delivered to Mrs. Bailey in New York upon surrender by her of the receipt given by the storage company, but without surrender of the bill of lading issued by the New York, Chicago & St. Louis Railroad Company, which was the initial carrier in the carriage from Chicago to New York. The draft upon Mrs. Bailey, to which the bill of lading was attached, was not paid. The plaintiff offered in evidence the bill of lading and under it claimed the right to recover.

The court below held that the plaintiff in error had no lien. A large part of the argument of the plaintiff in error in seeking a reversal of the judgment is based upon the contention that it in some way was subrogated to the rights and liens of the railroad companies for their freight charges. The defendant in error, however, insists that as these freight charges were all prepaid no lien exists and that therefore there could be no subrogation. We do not think the rights of the parties turn upon the question of subrogation. It appears from the statement of facts that the plaintiff in error undertook as a forwarder to transport the goods as part of a carload from San Francisco, the business evidently being-handled in that way in order that the benefit (in respect to the transportation from San Francisco to Chicago) of the reduced rate which is made upon goods shipped in a carload lot from that demanded when shipped in less than carload lots might be obtained. It has been held by this court, in a case which has been affirmed by the Supreme Court, that in such a case a forwarding, company must be regarded as a common carrier. Bare et al. v. American Forwarding Co., 146 Ill. App. 388 (242 Ill. 298).

Whether the plaintiff in error be treated as a forwarder or as a common carrier, we think the law is clear that it would have a lien upon the freight caused to be transported for its charges and for the railroads’ charges advanced by it. The plaintiff in error undertook to retain this lien by consigning the goods to its own order at New York. By the rules of the railroad company, as shown in the conditions of the bill of lading heretofore set forth, the surrender of the bill of lading (where the same is made out, as was done in this case, “to the order of” the consignor as consignee) is essential before the delivery of the freight. This rule or condition is, by the terms of the bill of lading, made part of the contract, and is so generally known that it may be said to have ripened into a custom.

Our attention has been called by the defendant in error to a large number of cases holding that in an action against a common carrier by the holder of a bill of lading, it is a complete defense that the carrier had delivered the goods to the lawful owner who was entitled to the possession thereof,—among others, The “Idaho,” 93 U. S. 575; American Express Co. v. Greenhalgh, 80 Ill. 68. There is no question but that this is a correct statement of the law. Applying it, however, to the present case, we hold that Mrs. Bailey, to whom the goods were delivered, was not entitled to the possession thereof, and could not have become so until the lien of plaintiff in error was satisfied.

The judgment is reversed with a finding of fact, and judgment entered in this court in favor of the plaintiff in error, Judson Freight Forwarding Company, and against the defendant in error, Delaware, Lackawanna & Western Railroad Company, in the sum of $112.20.

Reversed with finding of fact.


author: Me. Justice Clark

text:
    George Siegel, Defendant in Error, v. W. P. Dickinson, Plaintiff in Error.
    Gen. No. 15,686.
    Appeals and errors—when finding by court not disturbed. A finding by the court will not be set aside as against the weight of the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. William N. G-emmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    W. B. Wilson, for plaintiff in error.
    Gustav E. Beerly, for defendant in error.
   Me. Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error against the plaintiff in error upon a note, the note itself having been lost. The defenses were non est factum and no consideration.

The case was tried before the court without a jury, and there was a finding and judgment in favor of the plaintiff.

The argument of counsel is addressed wholly to questions of fact. We have carefully examined the abstract of record and briefs and arguments for the parties,' and are unable to say that the conclusion reached by the trial judge is erroneous. The evidence consisted largely of letters from the plaintiff in error, which go far, in our opinion, to substantiate the claim of the defendant in error.

Affirmed.


text:
    Lee J. Spear, Defendant in Error, v. J. C. Haggarty, Plaintiff in Error.
    Gen. No. 15,691.

      Instructions—when peremptory proper. It is proper for the court peremptorily to direct a verdict for the plaintiff in the absence of any evidence tending to establish the defense interposed. ------
    Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Thomas M. Poynton, for plaintiff in error.
    Dellenback, Riese & Cody, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Recovery was had for $83, being rent for an apartment for two months and part of a third.

The only defense interposed was that the apartment had not been renovated as required by the terms of the lease.

The trial was had before the court and a jury, the court, however, directing the jury to find a verdict for the plaintiff.

No question of law is involved. We have examined the record and find nothing in it to justify the claim of the defendant that the clause of the lease which provided that the flat should be thoroughly renovated had not been complied with.

Affirmed.


text:
    Nellie Carlin, Administratrix, Plaintiff in Error, v. Mathew Rauen, Defendant in Error.
    Gen. No. 15,730.
    Master and servant—when doctrine of assumed rislc applies. If the servant is injured from a danger known to him as well as to his master the doctrine 'of assumed risk applies and bars a recovery.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Bernard P. Barasa, for plaintiff in error.
    Lackner, Butz & Miller, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Plaintiff’s intestate was a common laborer in the employ of the defendant in error. Part of his duties consisted, when ordered, of wheeling brick and mortar over a plank, which was twenty feet long, twelve or fourteen inches wide, and three inches thick. This plank was on an incline. The deceased fell from it in some way, sustaining injuries which resulted in his death.

The record is made up of the testimony of one witness and the offer to prove other facts by certain other witnesses, the charge of the court to the jury directing it to find a verdict in favor of the defendant, the verdict and the judgment rendered thereon.

The declaration does not charge that the deceased did not know of the danger of using the plank, but the case of plaintiff in error is based entirely upon the theory that the plank was too narrow and the incline too great, and that because the foreman ordered the deceased to do work which required the latter to use the plank—the foreman knowing that it was unsafe to do so—the employer is liable for the result. It would seem that the deceased for two weeks or more before the accident had used this plank at least one or two hours each day in the regular line of his employment. The danger, if there was any, in using it, was as apparent to him as to his employer or his employer’s foreman. The order of the foreman was not an unusual one; it was one that apparently had been given and obeyed every day for two weeks or more. Nor was there danger in obeying it known to the foreman and unknown to the deceased. The deceased was not misled by an assurance of the foreman.

As was said in E. J. & E. Ry. Co. v. Myers, 226 Ill. 358:

“It is only where the servant has been misled by the assurance of the master, or some one standing in the master’s place, that he can excuse himself from the assumption of the risk on the ground that he has been assured by the master that there is no danger in the use of the appliance or piece of machinery which he knows, as a matter of fact, is defective and the use thereof attended with danger. ’ ’

We think the case is clearly one that comes under the doctrine of assumed risk, and that the trial court committed no error in directing a verdict. Kistner v. American Steel Foundries Co., 233 Ill. 35; Cichowicz v. International Packing Co., 206 Ill. 346; McCormick Harvesting Machine Co. v. Zakzewski, 220 Ill. 522.

Affirmed.


text:
    H. W. Baethke, Administrator, Plaintiff in Error, v. Aurora, Elgin and Chicago Railroad Company, Defendant in Error.
    Gen. No. 15,742.
    Contributory negligence—failure to loolc and listen. It is not contributory negligence, as a matter of law, for one seeking to cross railway tracks to fail to look and listen. Held, under the evidence in this case, that the question of contributory negligence should have been submitted to the jury.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 3, 1911.
    Stephen Janowicz, Walker M. Yeatman and Cyrus J. Wood, for plaintiff in error.
    Hopkins, Peffers & Hopkins, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

John Barnowski was killed upon a crossing of a track of the defendant in error, and suit was brought by the administrator of his estate.

The accident happened about 6:30 o’clock on the morning of September 12,1907. It was a clear, bright morning. The tracks of the defendant in error run-westward from Chicago through Maywood to Aurora. There are double tracks at 13th avenue, Maywood, where the accident happened. These tracks run practically due east and west. Plaintiff’s intestate was struck while crossing on the plank sidewalk, as he approached the south rail of the north track, by the corner of a car which was going west.

The evidence of the plaintiff in error tended to show that the deceased did not look to the east, from which direction the train was coming, as he approached the crossing. The trial court, at the conclusion of the plaintiff’s case, directed a verdict for the defendant, evidently upon the assumption that the conduct of the deceased was such as to constitute contributory negligence as a matter of law. Under the authority of two decisions, one of which has been announced by the Supreme Court of this state since the trial was had in the case before us, we think that the action of the trial judge was erroneous. In the case of Dukeman v. C. C. C. & St. L. Ry. Co., 237 Ill. 104, the court says, on page 107:

‘ ‘ The evidence does not show that the deceased failed to look or listen for the approach of the train, and if it did, such failure would not be negligence per se. A failure to look and listen cannot be said to be negligence as a matter of law, since there may be many circumstances excusing such failure. ’ ’

In the case of Winn v. C. C. C. & St. L. Ry. Co., 239 Ill. 132, the court says, on page 139:

“This court has repeatedly held that a traveler approaching a railroad crossing is required to use such care as a person of ordinary prudence would exercise under the same circumstances, and this ordinarily demands the use of the faculties of sight and hearing to discover whether a train is approaching or not, but it cannot be said, as a matter of law, that the failure to look or listen under all circumstances will bar a recovery. It is usually a question of fact for the jury to determine, in view of all the surrounding circumstances, whether failure to look and listen constitutes negligence or lack of due care. ’ ’

Indeed, the question before us seems to have been decided in a .much earlier case, in which Mr. Justice Craig, speaking for the court, says:

“But it is always a question of fact for the jury to determine from the evidence whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law.” (Pennsylvania Co. v. Frana, 112 Ill. 398, 405).

In the case we are considering there was testimony tending to show that the statutory signals had not been given and that the train was running at a higher rate of speed than was compatible with safety at a grade crossing where there was no watchman.

We think the case should have been submitted to the jury, under the authority of the decisions cited and of many others, among which the following may be mentioned: T. H. & I. R. R. Co. v. Voelker, 129 Ill. 540, 554; C. & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Chicago City Ry. Co. v. Robinson, 127 Ill. 9; 27 Ill. App. 26; Partlow v. Illinois Central R. R. Co., 150 Ill. 321; C. B. & Q. R. R. Co. v. Gunderson, 174 Ill. 495; 74 Ill. App. 356; C. & A. R. R. Co. v. Pearson, 184 Ill. 386; 82 Ill. App. 605; Chicago Junction Ry. Co. v. McGrath, 203 Ill. 511, 516; C. & A. R. R. Co. v. Lewandowski, 190 Ill. 301; C. & A. R. R. Co. v. Fell, 182 Ill. 523; E. J. & E. Ry. Co. v. Raymond, 148 Ill. 241; 47 Ill. App. 242; E. J. & E. Ry. Co. v. Lawlor, 229 Ill. 621.

In cases like these it would seem that the power of the trial court is limited to the granting of a new trial, if there is a verdict of the jury in favor of the plaintiff and if, in the opinion of the court, such verdict is against the clear weight of the evidence. The court may not, however, direct the jury to find a verdict for the defendant.

The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.