author: Mr. Justice McGoorty

text:
    Edward F. Dunne, Trustee, Appellee, v. Charlotte H. Cooke, Individually and as Executrix, et al., Appellants.
    Gen. No. 19,881.
    1. Trusts, § 111

      —what constitutes active trust. Where a testamentary trustee is required to convey real estate to the beneficiaries upon the death of the testator’s widow, and to convey to such beneficiaries at the expiration of such period certain corporate stock, subject to the charge in favor of the widow’s annuity, the trust is an active one.
    2. Trusts, § 200

      —when trustee may maintain action to construe will at expense of estate. Where testamentary trustees are unable to agree with the beneficiaries as to the manner of the execution of the trust under a will and the amount of compensation for their services, they may, even though the will is free from ambiguity, maintain a suit in equity at the expense of the trust estate for a construction of the terms of the will and to recover compensation for their services.
    3. Trusts, § 211

      —right of testamentary trustee to reasonable compensation for services. A testamentary trustee having charge of an active trust is entitled to reasonable compensation for services rendered and reasonable expenses incurred as trustee.
    4. Trusts, § 211

      —what may be considered in determining compensation of trustee. The compensation of a testamentary trustee is not to be determined by any established practice or rule, but, in determining such compensation, the responsibility incurred, the amount of the estate, the time and labor properly devoted by the trustee to the discharge of his duties may be considered.
    5. Trusts, § 212

      —when trustee has right to compensation although in receipt of compensation as executor. The fact that a testamentary trustee having charge of an active trust has received compensation as executor does not deprive him, as sole surviving trustee, of his right to compensation for services rendered as trustee, provided the duties are separate.
    6. Trusts, § 212

      —when testamentary trustee who is also executor right to charge fees in both capacities. A testamentary trustee who has charge of an active trust and is also executor may not charge fees in both capacities for the same services.
    7. Trusts, § 211

      —when good faith to be considered in determining compensation of testamentary trustee. Where a testamentary trustee of an active trust, who is also executor, acts in good faith in administering the trust, such conduct should he considered when determining the amount of compensation which he, as sole survive ing trustee, is entitled to.
    8. Trusts, § 211*—what considered in awarding compensation to testamentary trustee. In estimating the amount of compensation to be awarded a testamentary trustee, due consideration should be given to the intention of the testator to provide an annuity of a definite sum to his wife for life.
    9. Trusts, § 211*—what constitutes basis for estimation of compensation of testamentary trustee. The amount awarded a testamentary trustee for his services in administering the trust estate should bear a reasonable relation to the value of the trust estate.
    10. Trusts, § 211*—what not considered in computing compensation of testamentary trustee. The fact that the gross sales of a business during a testamentary trusteeship of seven years, the salaries paid to beneficiaries as officer^, and the gross rental value of real estate constituted a very large sum should not be used as a basis for determining the amount of compensation to be awarded the trustee, where the trustee took no active part in the business or in shaping its policy, and took no part in the management of the real estate.
    11. Trusts, § 218*—when compensation allowed testamentary trustee excessive. An allowance of $33,000 to a testamentary trustee for fees for himself as trustee and his counsel together with costs, held disproportionate to the size of the estate, and excessive.
    12. Evidence, § 436*—when, hypothetical question misleading. A hypothetical question relative to the value of services performed by a testamentary trustee and his counsel, held vague, indefinite and misleading where it assumed that the sales of the business were very large and that the estate was very valuable, and contained no reference to the rapidly diminishing income of the business, and all the witnesses wrongfully assumed that the trustee took an active part in the business and dominated its policy when, as a matter of fact, he had only nominal charge thereof.
    13. Evidence, § 454*—when opinion evidence as to value of services of testamentary trustee of little weight. The opinions of witnesses as to the value of services rendered by a testamentary trustee to the estate is of but little aid in determining the amount of compensation to be awarded for his services as trustee where their answers are based upon a hypothetical question which is vague and misleading.
    14. Trusts, § 209*—when attorney acting for testamentary trustee not entitled to compensation. The duties of a testamentary trustee-performed by an attorney for the trustee, which are not legal in their character, are not properly chargeable to the estate.
    15. Equity, § 397

      —how fees of master in counties of third class fixed. A master in chancery in a county of the third class cannot arbitrarily fix his fees for examining questions of law and reporting his conclusions, but before he is entitled to demand compensation, it is his duty to have the court determine the amount he should receive.
    16. Equity, § 401

      —when stenographer’s fees improperly taxed as costs by master. A charge for stenographer’s fees, which has already been included in the fee allowed the master in chancery, is not properly taxable as costs.
    17. Trusts, § 200

      —when attorney’s fees in action by testamentary trustee to construe will taxed against estate. Attorney’s fees in an action which is maintained in good faith by a testamentary trustee, because of disagreement with the beneficiaries, for a construction of the will as to the manner of executing the trust and to determine the amount to be allowed the trustee as compensation, should be taxed against the estate.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed January 11, 1916.
    Rehearing denied January 25, 1916.
    Statement by the Court. This ease comes before this court on appeal from a decree of the Circuit Court of Cook county awarding the appellee the sum of $30,-000 as compensation for his services as trustee under the last will and testament of John S. Cooke, deceased, and those of his solicitors and counsel. Appellee was allowed $15,000 for his services; William A. Doyle, one of appellee’s counsel, $12,000; and Joseph J. Thompson, as his solicitor in this proceeding, $3,000; $2,500 was allowed the master for his services, and $500 allowed appellee for services of a stenographer.
    More than seven years subsequent to testator’s death, a bill was filed Ibf the trustees to construe his last will and testament, particularly the fourth provision thereof, and to recover compensation for services rendered as trustees under said will. John S. Cooke left him surviving Charlotte H. Cooke, his widow, Charles F. Cooke, George J. Cooke and John B. Cooke, his sons, and Irene Welch, his daughter, as his only heirs at law and next of kin. Both John B. Cooke and Irene Welch died during the pendency of the proceedings below. The death of John M. Smyth, one of the said trustees, was suggested of record November 17, 1909, and the cause proceeded in behalf of appellee, as sole surviving trustee. Appellee filed a supplemental bill April 21, 1911. The third and fourth provisions of the will are respectively:
    “3rd: I hereby will and devise all my real estate of every description, including leasehold estates, to my friends John M. Smyth and Edward F. Dunne, in trust for the following uses and purposes, to-wit: to be held by them and the survivor of them, for the sole use and benefit of my beloved wife, Charlotte H. Cooke, during the time of her natural life, and after her death for the use and benefit of my beloved children, Charles F. Cooke, George J. Cooke, John B. Cooke and Irene Welch, share and share alike.
    “During the life of my wife, I will and direct my trustees to permit my wife, or her authorized agent, to collect all rents and income of the same out of which she shall pay the current carrying charges on said real estate, such as taxes, interest on incumbrances, insurance and repairs.
    “After the death of my wife, if my children can agree upon an equitable partition of the real estate, into four parts, and shall so declare to my trustees in writing and request a conveyance in accordance with said agreement, my said trustees, or the survivor of them, shall convey said property to my said children. If my said children cannot so agree upon a division of said property, then my said trustees, or the survivor of them, shall, after the death of my wife, convey to each one of my children requesting it an equal undivided one-fourth of said property.
    “4th: I will and bequeath all the capital stock now owned by me in the Cooke Brewing Company and the Ara Glen Mineral Water Bottling Company to the hereinbefore mentioned trustees, Smyth and Dunne in trust for the following uses and purposes, to-wit: To secure -to my wife a yearly income of seven thousand five hundred dollars during her natural life. If the net yearly income arising from my real estate and the sale of any of my personal property which I hereinbefore have bequeathed to her shall amount to said sum of seven thousand five hundred dollars each year, then the stock in said corporation shall not be charged with the payments of any annuity to my. wife, but if during any year of my wife’s life the income from my real estate and the sale of her personal property shall be insufficient to make up said amount of seven thousand five hundred, then it is my will that the deficiency shall be made good from the dividends on the stocks in said companies and shall be a charge upon said stocks until the same is paid.
    “I will and direct that my trustees, or the survivor of them, hold said stock in said corporation for the term of seven years from my death, for the use and benefit of my beloved children, Chas. F. Cooke, George J. Cooke, and John B. Cooke and Irene Welch, subject to the charge in favor of my wife’s annuity hereinbefore mentioned. And that during said period the management of said corporation, so far as my stock can control the same, shall be placed jointly in the hands of Charles F. Cooke, George J. Cooke and John B. Cooke.
    “At the end of seven years my trustees are hereby directed to convey my stock in said companies, subject to charge in favor of my wife’s annuity, to my said children, share and share alike.
    “I hereby appoint my friends, John M. Smyth and Edward F. Dunne executors of this my last will and testament, without bond or surety.”
    The testator bequeathed to his wife all of his personal property, excepting his stock in the Cooke Brewing Company and the Ara Glen Company.
    Issues were joined, on both the bill and supple* mental bill. The case was referred, testimony taken, findings made by the master and decree entered by the court sustaining all of the master’s findings except the seventh, the court finding in that regard that under the terms of the said will, the brewery stock must be held by the trustee until the death of the widow, Charlotte H. Cooke, to make up any deficiency that may accrue in the income from thp real estate and to insure that $7,500 per year shall be paid to the said widow as her annuity. The decree finds that the will was so ambiguous in its terms as to justify and require the filing of a bill for a construction thereof; that the quarrels of the family centered on the trustees, and they were obliged to institute this proceeding in order .to secure a decree protecting them in their acts as trustees and in order to secure compensation for themselves and for their counsel; that the brewery was sold because of extravagant management and fatal family quarrels, and that the net proceeds, if any, of such sale, must be invested and held by the trustee to insure the payment of the widow’s annuity. As to the real estate, the decree provides that the trust created by the will must continue until the death of the widow. The decree further provides that appellee, as the sole surviving trustee, be permitted to -resign; that a new trustee be appointed, and that appellee recover from appellants the compensation above stated, and also the costs of this suit. The decree further finds that the last will and testament of John S. Cooke, deceased, was duly probated and letters testamentary issued to John M. Smyth and Edward F. Dunne, the executors named therein, who immediately entered upon their duties as such; that the estate was settled about seven years thereafter, the executors discharged, and, by order of the Probate Court, were paid the sum of $6,000, "as and for their fees as such executors; that the said stock has never been divided, but is" still held intact by the sole surviving trustee, Edward F. Dunne, the appellee; that as to the compensation to be awarded to the trustees, John M. Smyth in his lifetime and during the pendency of this suit, and his legal representative since his death, expressly waived any claim for compensation as trustee, upon the ground that Smyth was acting from motives of friendship for the deceased, and therefore the sole inquiry is as to what compensation should be paid to Edward P. Dunne, the sole surviving trustee. All of the material allegations of said bill of complaint, as amended, and of said supplemental bill of complaint are found to be true.
    John S. Cooke died March 12, 1899, and the estate was closed and the executors discharged July 27, 1906. It is admitted that at the time of the final hearing before the master in 1912, the estate had much diminished in value, consisting almost wholly of the realty. All of the property of the brewery was sold December 8, 1910, the affairs of the corporation wound up, and its assets almost wholly applied to the payment of outstanding indebtedness. The construction of the fourth clause of the will' is, therefore, unimportant, unless it becomes material to the question of compensation of appellee for services as trustee. It is contended by counsel for appellants, that there is no ambiguity in the will and that there was no necessity or justification for filing the bill in the present case, and that appellee is not entitled to further compensation. The fourth provision of the will provides that: “At the end of seven years my trustees are hereby directed to convey my stock in said companies, subject to the charge in favor of my wife’s annuity, to my said children, share and share alike.” Demand was made upon the trustees by the Cooke heirs, at the end of the seven-year period, to make such conveyance. The trustees refused such demand, maintaining that it was their duty to hold such stock, during the life of Charlotte H. Cooke, to secure the payment of her annuity. It was contended by counsel for the beneficiaries, and is contended here, that upon the closing of the estate, it was the duty of the trustees, the seven-year period having elapsed, to convey the stock to the children of the testator, and terminate the trust, except as to the real estate. The following letter was addressed to the attorney for the trustees, immediately prior to the filing of the bill in this case:
    “November 30, 1906.
    “Mr. William A. Doyle,
    Chicago.
    “Dear Sir:
    “In regard’to the Cooke matter, I spoke with Mr. John M. Smyth over the ’phone, and I saw Mayor Dunne personally, and they both gave me to understand that the entire matter is in your hands.
    ‘‘ The will, in my opinion, makes it the duty now of Mr. Smyth and Mayor Dunne, as trustees, to turn over to the children of Mr. Cooke all the stock in the Cooke Brewing Company and the Ara Grlen Mineral Water Company, the seven years having more than elapsed since Mr. Cooke’s death. Mrs. Cooke desires this to be done, and has signed and left with me a paper releasing Mr. Smyth and Mayor Dunne from any claim which she might have against them as trustees for turning the stock over. The Cooke Brewing Company has already received notice of the charge which will be on this stock in favor of Mrs. Cooke, and a memorandum of this notice has been noted in the stock book of the company.
    “I take it from my conversation with you and Mayor Dunne that the trustees insist upon receiving fees for services as trustees before they turn the stock over, and that there may possibly be a disagreement between you and myself as to whether under the terms of the will it is the duty of the trustees to turn over the stock at this time.
    “Mayor Dunne was kind enough in the interview which I had with him to say that he would be satisfied to leave the matter to you and myself, and that he would be satisfied to accept any sum as trustees’ fees which we might agree upon.

      “One difficulty with this is, that Mrs. Welch and Mr. John B. Cooke insist in their talks with me that the trustees are not entitled to any compensation as trustees, and that they have already been amply compensated for their services as Executors. When asked my opinion as an attorney in the matter I cannot lose sight of the decisions holding that trustees must act without compensation, and are not allowed compensation unless the document under which they are made trustees provides for compensation.
    “In view of the stand which my clients take, I would have to decline the task of attempting to agree upon an amount with you. Although I would very much like to save annoyance for all parties concerned, still I believe that you and I would only waste time trying to negotiate a settlement between the parties. In the long run it would be better to have the matter submitted to some regularly constituted tribunal. To accomplish this, you might file a bill asking for a construction of the will, and have the questions of trustees’ fees adjudicated. If you prefer not to file a bill, then of course I could file a bill on behalf of my clients, setting up that the time to turn over the stock has arrived and asking for a decree compelling the performance of the trust.
    “This matter I understand has been dragging on now for several months without any conclusion being reached, and I am fully convinced that it is not to the interest of anybody to let it drag longer. If you will file such a bill as I suggest within the next week, I will be glad to enter the appearance of my clients and bring the matter to a speedy end. If you decide not to file the bill, then I shall feel free at the end of next week to file a bill on behalf of Mrs. Welch and Mr. John B. Cooke.
    “Finally, I may say that I am convinced that the stock must be turned over without delay, and without compensation being allowed, or the bill in equity must be filed.
    “While I regret very much to appear to bring a suit against either Mayor Dunne or Mr. Smyth, I feel, none the less, that it is to the interest of all parties concerned to have this matter brought to a close.
    Very truly,
    (Signed) M. Henry Guerin.”
    George J. Cooke succeeded his father to the presidency of the Cooke Brewing Company March 1899, and continued as such president until February 24, 1904. Charles F. Cooke, a brother of George J. Cooke, and Irene Welch, his sister, in 1903, acquired a controlling interest in the company by the purchase of what was known as the Plamondon stock. Thereupon, on June 23, 1903, by action of the.Board of Directors of the Cooke Brewing Company, the office of general manager was created; Charles F. Cooke was elected general manager, and George J. Cooke removed from the presidency of the corporation. For a brief interval, viz., February 6, 1904, to February 24, 1904, George J. Cooke again became president, when, on the latter date, Charles F. Cooke succeeded to the office of president and general manager of the brewery. George J. Cooke, at the same time, was elected vice-president of the brewery, without salary, and the evidence tends to show that he was not permitted to take any part in the management or conduct of the business, nor to thereafter enter the office of the company, or to see its books, except under the immediate protection of the court; he represented to the trustees that under the changed policy of the company, the business was diminishing and, if such policy was continued, would be ruined, and that it was their duty, under the fourth provision of the will, to place the management of the corporation, jointly, in the three sons of John S. Cooke, deceased. Charles F. Cooke continued as general manager and president until 1910, when the brewery was sold. The trustees at all times maintained that it was not for the best interests of all concerned that the trustees should do more than elect the children as directors in endeavoring to place the joint management of the company with the sons. Owing’ to this difference of opinion as to the duties of the trustees, George J. Cooke, on June 9, 1904, filed a bill, making the trustees parties thereto, to construe that clause of the will which provides “that during said period (seven years) the management of said corporation (the brewery), so far as my stock can control the same, shall be placed jointly in the hands of Charles F. Cooke, George J. Cooke and John E. Cooke.”
    The evidence tends to show that the affairs of the brewery and the relations of the heirs were harmonious up to June 23, 1903. During 1903 the affairs of the Ara Glen Company were wound up and its outstanding indebtedness paid.
    Neither the appellee nor John M. Smyth took any part in the active management of the brewery, either as executors or trustees. Appellee testified in this regard: “I never consulted with George Cooke, while he was president, in regard to the management of the business. * * * I did not assist in the manufacture * * * or the sale of the beer, and I know nothing of my own knowledge * * * about the receipts or the business transactions of the brewery.” Under the clause of the will permitting the wife of the testator or her authorized agent to collect all rents and income of the real estate and to pay the current carrying charges thereon, including taxes, interest on incumbrances, insurance and repairs, the trustees did not collect any rents, nor make any repairs. Appellee testified: * * * “Under the will neither Mr. Smyth nor I collected any rents from the real estate. Of my own knowledge, I know nothing about the rents, to whom it was rented, or anything about it. It was attended to, under the provisions of the will by her (Mrs. Cooke’s) agent.” According to the testimony of Charles F. Cooke, the real estate was rented by the brewery, and the rents collected and paid by the brewery to Charlotte H. Cooke, the widow. The real estate rented for about $8,300 per annum, from which the brewery paid Charlotte H. Cooke $7,500 per annum, and with the balance paid taxes and other necessary carrying charges. There was some evidence tending to show that the net proceeds of the rents were not at all times sufficient to pay the annuity. Charlotte H. Cooke testified that she received her annuity between the first and tenth of each month from her son Charles F. Cooke; that she never received any annuity from either appellee or John M. Smyth, but, following the death of her daughter Irene Welch, she once communicated by telephone with William A. Doyle (counsel for the trustees) regarding delay in payment of her annuity. The trustees had nothing to do with the declaring of dividends. The dividend checks were prepared and presented by the brewing company to the trustees for their indorsements, and then the trustees distributed such checks to the different heirs. George J. Cooke testified that at one time there was about $34 deducted from each dividend check for the purpose of payment of his mother’s annuity. William A. Doyle, as counsel for the trustees, testified that he prepared and took receipts from Charlotte H. Cooke for her annuity, examined accounts sent him by the brewery, checked dividend statements and that on one occasion he had considerable correspondence in regard to a deduction from the dividend check of George J. Cooke.
    John S. Cooke was, at the time of his death, the owner of 1,498 shares of the capital stock of the brewery, of the par value of" $100 per share; the total capital stock being 2,000 shares; one share was owned by Charles F. Cooke and one share by George J. Cooke, and the remaining shares were known as the PI am on - don interest. The stock of the brewery was the principal asset of the estate. At the time of the death of John S. Cooke, the capital stock of the brewery was $200,000, and the total sales of the brewery were 54.000 barrels per year. In 1904, at the time George J. Cooke was finally removed as president and general manager, he testified that the book value of the entire capital stock was $666,000, and that under his management $157,000 in dividends were paid, and the annual sales of the brewery ranged between 72,000 and 75.000 barrels of beer. At the time the witness testified before the master in this proceeding, in 1908, the annual sales of the brewery had fallen to about 40,000 barrels. At the close of Charles F. Cooke’s management, the brewery sold its entire plant and business for $160,000. The indebtedness of the brewery at that time was $130,000, in addition to which there was an indebtedness of $22,000 secured by mortgage on other trust property.
    During the administration of the affairs of the brewery under the management of Charles F. Cooke, the real estate was sold for nonpayment of taxes. Appellee communicated the situation to Charlotte H. Cooke and her attorney, threatening to remove Charles F. Cooke as real estate agent for Charlotte Cooke. On April 27, 1911, appellee filed a petition in the Circuit Court relative to the condition of the real estate; in pursuance to such petition an order was entered in this proceeding authorizing and directing appellee to collect the rents of the real estate, and to apply the same to its redemption from such tax sales, and authorizing him to borrow money on said real estate for such purpose. On May 13, 1911, appellee filed another petition representing that George J. Cooke had offered to collect the rents for the estate of John S. Cooke without charge or commission, and to mortgage one of the pieces of property for a sufficient amount to redeem all of the properties from impending tax sales; to deduct carrying charges from the rents, and turn the balance over to Charlotte H. Cooke, monthly. With the consent of appellee an order was thereupon entered, May 24, 1911, by the court approving the appointment of George J. Cooke for the aforesaid purposes.
    At various times, legal proceedings, in which the estate of John S. Cooke, deceased,- and the trustees were made parties, were instituted. Of the proceedings not concluded during the executorship, one was a suit of P. H. Welch, solely involving the heirs and devisees x of his wife, Irene Welch. An answer was filed by the trustees and appellee testified he made an examination of the testimony taken before the master to safeguard the interests of Charlotte H. Cooke. In two of the remaining proceedings George J. Cooke was complainant, in one of which he asked for a construction of the provision of the will heretofore referred to, and in the second proceeding asked for the appointment of a receiver for the brewery and other relief. The latter bill was filed a short time following the appointment of William A. Doyle as counsel- for the trustees. The fourth of these proceedings is the present suit.
    There is a sharp conflict of evidence as to the extent, character and value of the services rendered by appellee and William A. Doyle, Ms counsel, which is the principal issue of fact in this case. Appellee testified that numerous conferences were necessitated with his cotrustee, and with various numbers of the Cooke family, including stockholders’ and directors’ meetings, because of personal differences existing between the children of the deceased, and that he thought there was not a week during which there was not a. conference with either one of the heirs, or with his cotrustee, or their attorneys. George J. Cooke testified that the trustees did not attend any stockholders’ meetings prior to 1904, which testimony is corroborated by the records of the brewery. The decree finds that the trustees did not, during this period, attend the corporate meetings, but sent their proxies to the stockholders’ meetings with directions to elect the three sons and Mrs. Irene Welch, the daughter, as four of the five directors of the company. Appellee further testified that the minority interests in the brewery, consisting of the Plamondons, were much dissatisfied, contending that the brewery was being conducted wholly in the interest of the Cooke family; that the salaries of the officers were too large, and' that by reason of the alleged misconduct of one of the sons, John B. Cooke, for whom a conservator was subsequently appointed, it became necessary to remove him as a director. Appellee further testified that following the filing by George J. Cooke, of the two bills referred to, it became necessary to, and the trustees did, employ as counsel William A. Doyle, to look after the interests of the trust; that since the employment of Doyle, the latter has carried on all litigation. He further testified that the trustees always took care to ascertain whether or not the widow had received her annuity; that on certain occasions when dividend checks were received by the trustees, it became necessary for the latter to bring the heirs together to settle their disputes in that regard. Appellee further testified that, in addition to the matter of nonpayment of taxes, he received various communications and notices relative to the real estate and on August 11, 1910, was served with summons in a certain condemnation proceeding involving a strip of property belonging to the estate. Appellee further testified that because of the difficulties between the heirs, the trusteeship was very arduous, and, at times, very disagreeable. George J. Cooke testified that prior to June, 1903, he had no conferences with appellee; that subsequent thereto he had four conferences, three of which were not over fifteen minutes duration each. John B. Cooke, since deceased, testified that he had only two conferences with appellee and one of them was in regard to closing the estate in the Probate Court. Charlotte H. Cooke testified that the only time she consulted appellee was in regard to her widow’s award. Charles F. Cooke testified that he had quite a number of conferences with appellee in regard to the executorship, but he did not confer or advise with either of the trustees up to 1904, and that the other conferences with appellee were not more than two or three, which were had in regard to the trusteeship, between January 19, 1904, and February 24, 1904.
    William A. Doyle testified that from the time that he was retained by the trustees as counsel, he was practically a “third trustee;” that he acted as counsel for the trustees and also as their representative; that the trustees were busy and could not give the trust their attention; he further testified that he was consulted in matters that were the duties of the trustees by everybody connected with the estate; that he was unable to state how many hours he spent in the discharge of his duties as counsel for the trustees in connection with litigation in which they were parties, since he was retained in April, 1904; that he did not keep a record of the actual time spent, but that altogether he gave two hundred days of his time, on the basis of five hours constituting a day’s service. All of the heirs were represented by counsel and among the services testified to by Doyle, were frequent conferences with counsel for the respective parties. Doyle testified that he filed an answer to the first bill of George J. Cooke, and a cross-bill asking the court to fix and allow the trustees compensation for their services and sufficient money for the purpose of employing counsel; he testified that he attended all hearings before the master in such proceedings and examined 1,034 pages of testimony, but was unable to state the exact time spent before the master. Nothing was done regarding the cross-bill.
    Several members of the Chicago bar, in answer to a hypothetical question setting forth appellee’s contention as to services rendered, gave varying opinions as to the usual, reasonable and customary compensation for such services, as assumed by the question to have been rendered by appellee, from $30,000 to $60,000, and the same witnesses’ opinions as to the usual, reasonable and customary compensation for' such services as was assumed to have been rendered by appellee’s counsel, varied from $15,000 to $30,000. Other members of the Chicago bar, including one of the attorneys for the Chicago Title & Trust Company, upon a hypothetical question setting forth appellants’ theory as to services rendered, testified that the usual, reasonable and customary fee for a trustee, for such services, would not exceed $2,500; and that the usual and customary fee for services strictly legal in character, as assumed to have been rendered by appellee’s counsel, would not exceed $1,500. The final report of the executors filed in the Probate Court, in 1906, shows the personal property administered to have been of the value of $212,185.93. Joseph J. Thompson was awarded $3,000 by the chancellor as fees for his services rendered as solicitor in this case.
    Charles Goodman, Lee J. Frank, Mary Lee Colbert and Charles H. Pease, for appellants.
    Joseph J. Thompson, for appellee.

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

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

It is contended by counsel for appellants that the trust in this case is not an active trust, and that it was the duty of appellee, as sole surviving ’trustee of the estate of John S. Cooke, deceased, when the estate was closed, to terminate the' trust, except as to the real estate. It is further contended by appellants’ counsel that the will in question is free from ambiguity, and, therefore, the costs of this litigation .should not be borne by the estate. It is also urged by appellants that the compensation allowed appellee, as sole surviving trustee, for his services, that of liis counsel, and costs, including master’s fees, are clearly excessive; that the hypothetical questions as to trustee’s and solicitor’s fees are vague, indefinite, and not supported by the evidence; that the findings of the master and the decree of the court are contrary to the law and the evidence, and that for these reasons the decree of the Circuit Court should be reversed.

Where, as here, the trustee is required to convey the real, estate to the beneficiaries on the happening of a certain event, viz., the death of testator’s widow, and to convey to said beneficiaries, at the end of seven years, certain stock, subject to the charge in favor of the widow’s annuity, the trust is not a passive or dry trust. * * * Lawrence v. Lawrence, 181 Ill. 248, 252. In this case the trustees distributed dividend checks, informed themselves as to the payment of the widow’s annuity, requiring presentation of her receipts therefor, and performed other duties arising from a trust of this nature.

This court is of the opinion that the bill of complaint, of appellee in this cause was not improvidently filed. There was a sharp conflict of opinion between the heirs and the trustees of the estate of John S. Cooke, deceased, in regard to the duties of the trustees under the fourth provision of the will. The trustees were informed in writing, by counsel for the beneficiaries, that if the trustees did not, within a week thereafter, file a bill seeking a construction of the will and for the determination of the question of compensation of the trustees by the court such bill would be filed by the beneficiaries. Six days thereafter, the present bill of complaint was filed by the trustees. In Warner v. Mettler, 260 Ill. 416, the court commencing at page 420 says:

“ ‘Wherever there is any bona fide doubt as to the true meaning and intent of the provisions of the instrument creating the trust or as to the particular course which he ought to pursue, the trustee is always entitled to maintain a suit in equity at the expense of the trust estate and obtain a judicial construction of the instrument and directions as to his own conduct.’ (3 Pomeroy’s Eq. Jur. sec. 1064.) Courts of equity will not only compel the performance of the trust, but they ‘will assist the trustees and protect them in the due performance of the trust whenever they seek the aid and direction of the court as to the establishment, the management or the execution of it.’ (2 Story’s Eq. Jur.—13th ed.—sec. 961.) The difficulties arising in the execution of a trust may make it eminently proper for the trustee ‘to apply to a court of equity for its aid and direction in the premises, and we have no doubt of the jurisdiction of a court of equity to afford the requisite relief.’

As the personal property of the estate has been disposed of, the construction of the will in regard thereto is not material to the issues in this case. Even though this court may be of the opinion that the will in question is free from ambiguity, yet, under the evidence, it is manifest that the trustees were unable to agree with the beneficiaries as to the proper construction of thé will and, under all the facts and circumstances in evidence, they were justified in seeking the intervention of a court of equity for that purpose.

Appellee is entitled to reasonable compensation for services rendered and reasonable expenses incurred as trustee. Bean v. Northern Trust Company, 266 Ill. 205, 211. This court has held that: “The compensation of a trustee is not determined by any established practice or rule, but in determining such compensation the responsibility incurred, the amount of the estate, the time and labor properly devoted by the trustee to the discharge of his duties are to be considered. What is reasonable compensation depends largely on the circumstances of each case.” Follans bee v. Outhet, 182 Ill. App. 213, 216. The fact that appellee received compensation as executor does not deprive him, as sole surviving trustee, of his right to compensation for services rendered as trustee, provided the duties were separate. An executorial trustee may not, however, charge fees in both capacities for the same service. Arnold v. Alden, 173 Ill. 229, 234.

The Probate Court fixed the compensation of the executors in this case at the sum of $6,000; they were paid the additional sum of $800 as interest thereon. The Circuit Court by its findings did not separate nor distinguish the services* of appellee rendered as executor from those rendered as trustee, although the decree finds that by order of the Probate Court the trustees were paid their fees as such executors. The court finds that considerable time was spent by the trustees in regard to a bill filed by the Plamondons involving more than $30,000. The suit referred to was settled by the executors and referred to in their first report filed in the Probate Court. During the period of the executorship the services performed by the trustees, as such, until Jnne, 1903, when the management of the brewery was taken from George J. Cooke, mainly consisted of the distribution of dividends, ascertainment of receipt by the widow, Charlotte H. Cooke, of her annuity, attending a family conference determinative of a choice between George J. Cooke and Charles F. Cooke for president of the brewing company, attending certain meetings of the stockholders thereof, either in person or by proxy, and holding title to the real estate. . Under the third provision of the will, the trustees were directed to, and did, permit the wife of the testator, or her authorized agent, to collect all rents and income of the real estate and to pay the current carrying charges thereon.

Dissensions among the Cooke heirs, covering a period of years, assuming serious form in June, 1903, imposed, thereafter, duties more pressing and onerous upon the trustees. • That the trustees earnestly endeavored, though unsuccessfully, to harmonize the differences which had arisen between the sons of the testator is manifest from the evidence. These efforts of the trustees included many conferences with the heirs, their counsel, and with each other. After the real estate had been sold for taxes, appellee, as sole surviving trustee, took prompt and effective measures to protect the property affected. The litigation between the heirs, instituted by George J. Cooke, to which the trustees were made parties, and other litigation and court proceedings, including 'the matter of the conservatorship of John B. Cooke, required the attention, to some extent,, of the trustees. The constant attendance of trustees ’ counsel at the several hearings before the master in the proceeding wherein George J. Cooke sought a construction of the will as to the duties of the trustees, was justifiable, even though the several parties were represented by counsel. The trustees were necessary parties to the proceeding and had the right, therefore, to be represented by counsel. It is evident that the trustees in administering the trust acted in good faith, and the question of compensation of appellee, as sole surviving trustee, for services rendered in behalf of the trust should be determined upon that basis. Appellee did not, however, render services to the extent set forth in the long series of findings, in the decree entered by the Circuit Court. The findings of the court that the gross sales of the brewery during the trusteeship were $3,000,000, salaries paid to the children amounting to $175,000, and the gross rental value of the real estate $90,000, though relevant for the purpose of showing the size and character of the trust property, should not be used as a basis or as a determining factor, in arriving at the value of the services of appellee, as trustee.. The trustees took no part in the actual management of the brewery, in the selection or management of its employees, nor in influencing its policy, and took no part in the management of the real estate, the title to which was vested in the trustees. In 1904 the book value of the 1,498 shares of stock held in trust by the trustees was about $500,000. Six years later the complete change in the fortunes of the business is shown in the fact that the entire plant and business of the Cooke Brewing Company was sold for $160,000, less than three-fourths of which proceeds belonged to the trust estate and which was practically all absorbed by outstanding indebtedness of the company. The court by its decree finds that the real estate left by John S. Cooke was worth (presumably at the time of his death) more than $150,000. The only evidence as to the value of the real estate at the time of the entry of the decree is that of George J. Cooke, who testified that the real estate exclusive of the brewery plant was worth approximately $65,000 to $75,000. The personal property belonging to the trust has been practically exhausted. An allowance of $33,000 for the fees of appellee and his counsel, together with costs, including master’s fees, is a sum disproportionate to the apparent value of the trust estate at the time of the entry of thé decree, regarding the value of which the court below makes no finding. In arriving at an equitable conclusion as to the question of compensation, the amount fixed should bear a reasonable relation to the value of the trust estate. Due consideration must be given to the rights and interests of the widow, to whom the testator willed an annuity of $7,500 per annum, during her life. The intention of the testator should not be defeated if it can reasonably be complied with.

The hypothetical question asked appellee’s witnesses assumed that the sales of the product of the brewery during the trusteeship were over $3,000,000, the assets of the Cooke Brewing Company about $600,000, and that the estimated value of the total estate including income was $4,000,000. The hypothetical question contains no reference to the rapidly diminishing income of the business, commencing in 1904. It is obvious that such assumption must have produced in the minds of the various witnesses the erroneous impression that the trust estate was of great magnitude. The annual sales of the brewery, according to the testimony of George J. Cooke, were about 72,000 barrels in 1904, and in 1908 the annual sales had fallen to about 40,000 barrels. All of these witnesses assumed that the trustees took an active part in the management of the business, or, by the election of the directors, largely dominated its business policy. It is manifest that such hypotheses were misleading, and the opinions expressed by the various witnesses as to the value of the services rendered can be of but little aid to the court. This is further emphasized by the fact that the recitals as to the services of appellee and his counsel, contained in such hypothetical questions, were, in many instances, vague, indefinite and uncertain.

The testimony of appellee’s counsel, is, that he was “practically a third trustee; was consulted, considered and run to, in matters that were the duties of the trustee, by everyone connected therewith. ’ ’ In regard to the legal services rendered by appellee’s counsel, the evidence tends to show that he was present at all hearings and arguments in the proceedings instituted by George J. Cooke; that he examined all pleadings and filed answers in all cases for the trustees; that he attended practically all of the hearings and arguments of counsel before the master and advised the trustees of such hearings and the evidence heard; that he had numerous conferences with the several lawyers employed by the heirs, reported such conferences and matters relating thereto, to the trustees, and advised with them regarding same; that he attended to all other litigation in which the trustees were parties, or the interests of the beneficiaries involved. The services of William A. Doyle extended over a period of four years. The evidence tends to show that he, as counsel for the trustees, actively and faithfully discharged his duties as such. The duties of trustee, however, performed hy Mr. Doyle, which were not legal in their character, are not properly chargeable to the estate.

It is further contended, by counsel for appellants, that the fees of the master in chancery are excessive. The fee requested by the master, as shown by Ms certificate and allowed by the court, was $2,500. How such sum is arrived at cannot be determined from an inspection of the master’s certificate. A master in a county of the third class cannot arbitrarily fix his fees for examining questions of law and fact and reporting his conclusions thereon, but before he is entitled to demand compensation it is his duty to have the court determine the amount he should receive, and the parties may be heard upon that question. Schnadt v. Davis, 185 Ill. 476. Further evidence should be heard to determine the extent and value of the master’s services, and as to the reasonableness of his fee.

It is also urged that the court erred in taxing, as costs in the case, the sum of $500 for stenographer’s fees, as such item was included in the fee allowed the master. Such allowance is clearly erroneous. Schnadt v. Davis, supra.

It is further contended that the court erred in taxing against the estate the solicitor fees allowed to Joseph J. Thompson, as solicitor for appellee in this proceeding, and that such fee should be paid by the appellee. The costs of this litigation should be borne by the estate. Arnold v. Alden, supra.

The decree of the Circuit Court is reversed and the case remanded for such proceedings as equity and justice may require, consistent with the views herein expressed.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    William C. Hartray, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,858.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the Octoher term, 1914.
    Affirmed.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action by the administrator of the estate of Thomas M. Smith, deceased, plaintiff, against the City of Chicago, defendant, for damages for the death of intestate alleged to have been caused by the negligence of defendant. From a judgment in favor of plaintiff for $8,500, defendant appeals.
    This case was before this court at a former term on an appeal prosecuted by the defendant from a judgment in favor of plaintiff, reported in 182 Ill. App. 134, reversing the judgment because of error in improperly admitting testimony of the existence of a particular defect in the street pavement of Elston avenue, in the City of Chicago, which did not contribute to the injury of plaintiff’s intestate, and on the further ground that the evidence did not sufficiently prove that the defendant, the City of Chicago, had notice either of the existence of a certain other defect, if any existed in said street, or of its dangerous condition, if it was dangerous, which contributed to the injury and death of plaintiff’s intestate.
    The deceased, at the time in question, was driving in a southerly direction on Elston avenue, in the City of Chicago, a four-mule team with a heavy wagon attached thereto. There were three witnesses to the accident, all of whom testified in behalf of the plaintiff. Their evidence tended to show that the accident occurred in the nighttime, and that as the mules reached the south cross-walk of Armitage avenue, where the latter street intersects Elston avenue, the right front wheel of the wagon in question dropped into a deep hole in the pavement in Elston avenue, at a point south of the center line of Armitage avenue, causing the deceased to fall from his seat on the wagon to the street pavement, sustaining injuries which resulted in his death.
    Fred Tiedge and Stanley Feist, two of the witnesses to the accident, did not testify at the first trial, but testified at the second and third trials of this case. Their testimony at the last hearing, as to the location of the hole in question, was that the right front wheel of the wagon dropped into a hole on the outside of and immediately adjoining the west rail of the southbound street car track on Elston avenue, which testimony, in that regard, was at variance with the testimony of Mary Becker. Fred Tiedge and Stanley Feist testified that the wagon went into a hole in front of Paylor’s saloon. Tiedge testified that, “The man fell off to the Paylor way * * The entrance to the Paylor saloon was on the southwest corner of Armitage and Elston avenues. Mary Becker testified that, “The hole was right in front of Paylor’s saloon * * * inside of the southbound track * * *. He fell right straight in the front, mostly toward Paylor’s saloon.. * * * He laid in the middle of the southbound track.” Stanley Feist did not testify as to the direction in which the body of the deceased fell. Five other of plaintiff’s witnesses corroborated the testimony of Tiedge and Feist as to the location of the hole in question, and that such condition had existed there during all of that winter. On the other hand, several other witnesses testified, in behalf of the city, that there was no hole at the place in question of the size and character testified to by plaintiff’s witnesses.

      Abstract of the Decision.
    1. Witnesses, § 257

      —what is effect of variance in testimony. Variance in the testimony of witnesses as to the exact location of an accident goes simply to their credibility.
    2. Municipal corporations, § 1098

      —when evidence sufficient to sustain verdict in action for negligent death. In an action against a city for the death of a person caused by the wheel of a wagon in which he was sitting falling into a hole in the pavement and throwing him upon the pavement, held that the verdict was not against the manifest weight of evidence.
    3. Appeal and error, § 1185

      —what is extent of review of evidence by Appellate Court. The Appellate Court must review a case from the record presented, and cannot inspect the transcript in a former hearing to determine questions of fact.
    4. Witnesses, § 342

      —when admissibility of evidence as to location of hole in pavement not affected by variant testimony. The fact that the sole witness at the first trial of a case against a city for damages, for the death of a person caused by the wheel of the wagon in which deceased was sitting, falling into a hole in the pavement and throwing him out, testified that the hole was at a certain place, does not render inadmissible at a subsequent trial the testimony of other witnesses that the hole was at another place.
    John W. Beckwith, N. L. Piotrowski, Richard S. Folsom and Charles R. Francis, for appellant; David R. Levy, of counsel.
    C. Helmer Johnson and Daniel Belasco, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Benjamin M. Lawrence, Appellee, v. Northwestern National Insurance Company, Appellant.
    Gen. No. 20,877.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 11, 1916.
    Rehearing denied February 7, 1916.
    Statement of,the Case.
    Action by Benjamin M. Lawrence, plaintiff, against the Northwestern National Insurance Company, defendant, on a fire insurance policy for $3,000 on a two-story frame dwelling. From a judgment for plaintiff for $1,500, defendant appeals.
    Plaintiff filed sworn proofs of loss with defendant, alleging the amount of the loss to be $2,492.20, which is the amount set forth in plaintiff’s statement of claim. Defendant, in its affidavit of merits, confined the issues to acts and deeds which occurred after the fire, and predicated its defense upon fraud and false swearing in making the representations, and expressing the opinions appearing in the proofs of loss.
    The policy of insurance contained this language: "This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after the loss.” The policy required the insured to deliver the following instruments to the company:
    a. Complete inventory, stating the quantity and cost of each article and the amount claimed thereon,
    b. Sworn statement setting forth the cash value of each item and the amount of loss; and,
    •c. If requested, verified plans and specifications of the building, fixtures or machinery destroyed or damaged.

      Abstract of the Decision.
    1. Insurance, § 683

      —when question whether overvaluation in proofs of loss fraudulent for jury. It is a question oí fact whether an overvaluation in the proofs of loss by fire of property is intentionally fraudulent, even though there is a considerable discrepancy between the amount stated by the insured in the proofs of loss and the value found by the jury.

      Plaintiff’s proof of loss included a plan certified by him, showing a two-story and basement frame building and a statement and schedule containing a list of material sufficient to erect a building of such dimensions with studding twenty-four feet high, including a maple floor covering the entire first floor thereof, birch doors with plate glass, and oak trim in the living and dining rooms, respectively. Defendant contended that the building destroyed by fire was one story in height with an eighteen foot studding only, containing no hard wood trim nor birch doors with plate glass, and only the kitchen floor was of maple. Defendant further contended that much of the lumber used was old and secondhand, and the prices of material contained in such statement of loss are excessive. The plan and specifications included in the proofs of loss were made by a building contractor named 0 ’Donovan, at the request of and upon information given to him by plaintiff, who certified that such plan and specifications were true and correct to the best of his knowledge and memory.
    There was a conflict of evidence upon all of the issues of fact raised by the pleadings. One of defendant’s witnesses, Salomon, a building contractor, testified that the lumber prices seemed to be fair. The witnesses, in estimating the loss, gave opinions varying from $1,324 to $3,100, respectively.
    Frank M. Fairfield, for appellant.
    S. E. Lambert, for appellee.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Fraud, § 87*—when not presumed. Fraud is never presumed.

3. Fraud, § 89*—when burden of.proof upon party alleging fraud. The burden of establishing fraud is upon the party alleging it. '

4. Insurance, § 633*—when evidence insufficient to establish fraudulent overvaluation. In an action on a fire insurance policy on a building, evidence held insufficient to establish fraud in making an overvaluation in the proofs of loss.


author: Mr. Presiding Justice MoSurely

text:
    Illinois Smelting & Refining Company, Defendant in Error, v. Harold E. Horton and George H. Horton, trading as Chicago Aluminum Castings Company, Plaintiffs in Error.
    Gen. No. 20,472.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by the Illinois Smelting & Refining Company, plaintiff, against Harold E. Horton and George H. Horton, trading as Chicago Aluminum Castings Company, defendants, for a balance claimed to be due for aluminum sold defendants. From a judgment for plaintiff, defendants bring error.
    Harvey Strickler, for plaintiffs in error.
    Louis S. Gibson, for defendant in error.
   Mr. Presiding Justice MoSurely

delivered the opinion of the court.

Abstract of the Decision.

1: Accord and satisfaction, § 4*—what constitutes where claim, disputed. Where there is a dispute as to the weight of metal sold and the parties agree that the seller shall weigh up the metal and that the purchaser shall make payment at once on the basis of the weight thus ascertained, and, after the metal is correctly weighed, a bill is presented in which a shortage of weight is deducted, and a.check given in payment therefor is accepted, there is an accord and satisfaction so as to preclude a recovery for an alleged balance.

2. Payment, § 29*—when evidence sufficient to establish payment of disputed claim. In an action to recover an alleged balance for metal sold where it appeared that there was a dispute as to the weight, and there was undisputed evidence that the plaintiff carefully weighed and checked the metal, pursuant to an agreement of the parties, held that the evidence was sufficient to establish payment for all metal that had been delivered.


author: Mr. Presiding Justice McSurely

text:
    New Amsterdam Casualty Company, Plaintiff in Error, v. W. B. Hetterstrom et al., Defendants in Error.
    Gen. No. 21,156.
    1. Insurance, § 155

      —when additional premium recoverable by employer’s indemnity insurance company. Where an employer’s indemnity insurance policy provides that the premium is based upon the entire compensation paid the employees, and that if such entire compensation exceeds the estimate the assured shall, upon demand, immediately, pay the insurer the additional premium earned, the insured is liable for the additional premium, upon demand, where the compensation has been grossly underestimated in the schedule.
    2. Insurance, § 113

      —when evidence sufficient to establish delivery of policy. In an action by an employers’ indemnity insurance company for an additional premium upon the ground of an underestimate of compensation paid employees in the schedule, evidence held sufficient to establish a delivery of the policy.
    3. Insurance, § 661

      —when evidence sufficient to establish acceptance of policy. In an action by an employers’ indemnity insurance company for an additional premium upon the ground of an underestimate of compensation paid employees in the schedule, held that the payment of the initial premium was sufficient evidence of the acceptance of the policy.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed January 17, 1916.
    Bulkley, More & Tallmadge, for plaintiff in error.
    C. D. Lee, for defendants in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff sued defendants for premiums on a policy of indemnity insurance. After trial by the court it was adjudged that plaintiff take nothing.

By the policy the plaintiff agreed to indemnify the assured for damages on account of bodily injuries sustained by individuals not employed by defendant. The work covered by the policy was a paving and curbing job at Forest Park, Illinois. The basis of the premium was $1.50 for each $100 of the assured’s pay roll on that work, with a minimum premium of $50 which was charged at the time the policy was written. The policy contained a clause, which is usual in such form of policy, as follows:

“The premium is based on the entire compensation of which an estimate is given in the schedule. If such entire compensation exceeds the said estimate the assured shall on demand immediately pay the Company the additional premium earned.”

The pay roll was estimated in the schedule at $3,000, but upon examination of defendants’ books it was ascertained that the pay roll was $30,522.13, and upon, the basis of this, the premium which defendants should pay would be $457.83, upon which defendants were entitled to a credit of $50, the initial premium which they had paid. Under the undisputed evidence and under the terms of the policy defendants were obligated to plaintiff for premiums in the amount of $407.83. New Amsterdam Casualty Co. v. Saloman, 165 Ill. App. 264; see also Employers’ Liability Assur. Corporation v. Kelly-Atkinson Construction Co., 195 Ill. App. 620.

It is argued by the defendants in this court that the policy was not delivered to defendants and accepted by them, but we think the evidence does not justify this assertion. The evidence sufficiently shows a delivery, and the payment thereafter of the initial premium of $50 is evidence of the policy’s acceptance.

The plaintiff was entitled to $407.83. The judgment of the trial court is reversed and judgment against defendants for this amount is entered in this" court.

Reversed and judgment here.'


text:
    John D. Broxham, Plaintiff in Error, v. James J. Harrington, Jr., Defendant in Error.
    Gen. No. 21,277.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action for deceit by John D. Broxham, plaintiff, against James J. Harrington, Jr., defendant, to recover money expended by the plaintiff in redeeming from a sale of property for an unpaid special assessment which the plaintiff claimed the defendant, the plaintiff’s grantor of the property, represented as having been paid. On judgment for the defendant, the plaintiff brings error.
    It appeared that plaintiff and defendant, each owning certain lots, agreed to make an exchange; that on August 25, 1913, they met at the office of defendant to close the deal; that defendant produced an opinion of title from the Chicago Title & Trust Company showing that his property was subject to a special assessment for street paving, confirmed February 29, 1912, payable in five annual instalments. Plaintiff testified that defendant said that the former owner of his lots had paid the first instalment of-the special assessment, and that defendant would get the receipt from him and turn it over to plaintiff. There was evidence tending to corroborate plaintiff. On the other hand, defendant denied making such statement, and there was testimony tending to corroborate him. The deal was closed, defendant giving plaintiff a warranty deed of that date conveying the property to plaintiff, ‘ ‘ subject to all taxes and assessments levied for the year 1912 and to any unpaid special taxes or special assessments.” Plaintiff claimed that as a matter of fact this first instalment of the special assessment had not been paid, and that after he acquired title the property was sold therefor and he was obliged to and did deposit with the county clerk $116.67, the amount necessary to redeem from this sale. Plaintiff claimed that by defendant’s false representation, knowingly made, he induced plaintiff to act upon it to his loss and injury.
    Rathte, Lawlor & Connor, for plaintiff in error.
    William A. Jennings, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1752 —when judgment affirmed for insufficiency of abstract. Where, on review of a judgment on a writ of error, papers and documents, received in evidence in the trial court and referred to in the plaintiff in- error’s brief and argument as being insufficient to support the judgment, do not appear in the abstract of record either in whole or in part, or. in substance, the court will not search the record to find grounds for reversal, but judgment may properly be affirmed on the ground that it will be presumed that they were sufficient to support the conclusion reached by the trial court.

2. Fraud, § 115 —when evidence insufficient to sustain judgment. In an action for deceit to recover money expended by the plaintiff in redeeming from a sale of property for an unpaid special assess, ment which the plaintiff claimed the defendant-grantor represented as having been paid, evidence held insufficient to support a judgment for the plaintiff.

3. Contracts, § 256 —when previous negotiations merged in written contract. A written contract executed between parties supersedes all prior negotiations, representations and agreements upon the subject.


text:
    John V. Pouzar, Plaintiff in Error, v. Old Colony Trust & Savings Bank, Defendant in Error.
    Gen. No. 21,357.
    Banks and banking, § 131

      —what is effect of certifying forged ' check on liability of bank. A bank certifying a check at the instance of a bona fide holder for value will not be relieved of liability thereon by the fact that the signature of the drawer is a forgery.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed January 17, 1916.
    W. J. Vavra and G. L. Wire, for plaintiff in error.

      Defress, Buckingham & Eaton, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover the amount of a check for $45 drawn on defendant’s bank and certified by it but which it later refused to pay. Upon trial by the court it was adjudged that plaintiff take nothing.

We have not been favored with any brief on behalf of the defendant.

From the evidence it appears that the plaintiff, who was a merchant, on Saturday evening, November 1, 1913, sold a suit of clothes to H. L. Davis, known by the plaintiff to be an employee of the McKenzie Furnace Company; that Davis tendered in payment a check dated that day, payable to his order, in the sum of $45, signed by the McKenzie Furnace Company, by D. J. McKenzie, .president. Davis indorsed the check in blank and delivered it to plaintiff, and received the suit of clothes and $25 in change. On Monday, November 3rd, plaintiff, at the opening of business, presented the check at the banking rooms of the defendant and requested that it be certified. Defendant certified the check and plaintiff then deposited it to his account with the National City Bank of Chicago. Later, but on the same day, defendant through S. B. Cramer, its assistant cashier, notified the National City Bank and the plaintiff that the signature of the maker of the check was a forgery. On the same day, November 3rd, the check was paid through the Chicago Clearing House, through which both the National City Bank and the defendant clear. On November 4th, Mr. Cramer returned this check to Mr. Meyer, assistant cashier of the National City Bank, and requested Mr. Meyer to charge the check back to plaintiff because their “fool” teller had certified a forged signature, and promised to take up the check if plaintiff would not accept the charge back. Mr. Meyer remitted to Mr. Cramer the amount of the check and Said that he would take the matter up with plaintiff in an endeavor to have the check charged back to him. Subsequently the check was presented at the defendant’s bank to the assistant cashier, who refused to pay the same. The National City Bank charged the amount of the check back to plaintiff.

Under these facts we are of the opinion that plaintiff was entitled to recover.

The provisions of the Negotiable Instruments Act apply to a check. Ulinois Statutes (Hurd) chapter 98, Section 202. (J. & A. 7824.) “Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance.” Section 204. (J. & A. 7826.) “Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.” Section 205. (J. & A. 7827.) “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check. ” Section 206. (J. & A. ft 7828.) Rauch v. Bankers National Bank, 143 Ill. App. 625.

There was no competent evidence that the signature on the check was a forgery, and further, as was said in First National Bank v. Northwestern Nat. Bank, 152 Ill. 296, 306: ‘ ‘ The drawee of a bill of exchange or of a bank check is conclusively presumed to know the signature of the drawer, and if he accepts or pays, in the usual course of business, a bill or check whereon the signature of the drawer is a forgery, he will be estopped to afterward deny the genuineness of such signature. ’ ’

For the reasons above indicated the judgment is reversed and judgment for plaintiff against defendant for $45 is entered in this court.

Reversed and judgment here.


text:
    Herbert F. Brandenberg, Defendant in Error, v. Peter Klehr, Plaintiff in Error.
    Gen. No. 21,486.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 3

      —when evidence sufficient to sustain finding of lack of contributory negligence. In an action to recover for personal injuries sustained by plaintiff in a collision between his motorcycle and defendant’s automobile, evidence examined and held to warrant a finding that plaintiff was not guilty of negligence contributing to his injury, it appearing that at the time of the accident plaintiff was riding on the right side of the road.
    2. Automobiles and garages, § 3

      —when evidence sufficient to sustain finding of negligence in operation of automobile. In an action to recover for personal injuries sustained in a collision he-tween plaintiffs motorcycle and defendant's automobile, evidence examined and held sufficient to warrant a finding that defendant was guilty of negligence, it appearing that while plaintiff was riding on his right-hand side of the road, defendant improperly crossed from his right-hand side to his left, causing the collision.

      Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by Herbert F. Brandenberg, plaintiff, against Peter Klehr, defendant, in the Municipal Court of Chicago, to recover for personal injuries sustained by plaintiff in a collision between plaintiff’s motorcycle and defendant’s automobile. The case was tried by the court without a jury. To reverse a judgment for plaintiff for four hundred and fifty dollars, defendant prosecutes this writ of error.
    Walter A. Brendecke, for plaintiff in error.
    Schnaekenbebg & Rubinkam, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Chicago Specialty Shoe Company for use of Stein & Rosenthal, Defendant in Error, v. Walter Uhwat, Plaintiff in error.
    Gen. No. 21,536.
    Fraudulent conveyances, § 15

      —when creditor of vendor of goods in bulle cannot recover personal judgment against vendee. The creditor of a vendor of goods in bulk cannot recover a personal judgment against the vendee because of the mere failure of such vendee to comply with the Bulk Sales Act, providing that such sale shall be void as against the creditors of such vendor unless the vendee gives certain notice to such creditors.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed January 17, 1916.
    J. J. Moser, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this writ of error defendant seeks to have reversed a judgment rendered against him in the Municipal Court for $11.41.

Plaintiff in its statement of claim alleges that on December 7, 1914, one F. Wanotowicz owed plaintiff $11.41 for merchandise sold to him; that on January 4,1915, said Wanotowicz sold his stock of merchandise to the defendant in bulk, said merchandise being valued at $500; that the “said parties in violation of the statutes of the State of Illinois, in force and effect on said date, did not notify the plaintiff, as is provided in said statute known as the 'Bulk Sales Act,’ whereby defendant became liable to pay the claim of plaintiff.” Defendant says that this claim does not state any cause of action, and in this we think defendant is correct. The “Bulk Sales Act,” in brief, provides that the sale of a stock of merchandise ‘ ‘ shall be fraudulent and void as against the creditors of the said vendor” unless the vendee shall at least five days before taking possession give written notice to creditors of the vendor of the proposed purchase and the terms of the sale. There is also a further provision therein that any vendor violating’ the obligations laid upon him to furnish to the vendee a list of the creditors shall be guilty of a misdemeanor and punished. We nowhere find any provision for any liability of the vendee to a vendor’s creditor arising from any violation of this act. We hold that a creditor cannot recover a personal judgment against a vendee because of the latter’s failure to comply with this act.

We have not been favored with any brief on behalf of the plaintiff.

In Bewley v. Sims (Court of Civil Appeals of Texas, application for writ of error dismissed by the Supreme Court), reported in 145 S. W. Rep. 1076, the court seems to have considered the decisions of other States having bulk sales acts similar to ours, and says: “In none of the states, so far as we have been able to find, has it been held that a mere purchase in bulk, as here, in violation of the statute, renders the vendee personally liable to the creditors of the vendor. ’ ’ This is in accord with the conclusion of the Supreme Court of New Hampshire in McGreenery v. Murphy, 76 N. H. 338. In Dobson v. More, 171 Ill. 271, it was held that a creditor for goods sold to a partnership which became incorporated after the purchase, who levies an attachment on the corporate property, claiming it was transferred from the partnership to hinder creditors, must show to sustain the levy that the property attached was the same property transferred from the partnership and that the transfer was fraudulent.

For the reasons above indicated we are of the opinion that there is no liability of the defendant. Hence the judgment is reversed and judgment of nil capiat is entered in this court.

Reversed and judgment here.


text:
    Johanna Gertz, Defendant in Error, v. Clover Leaf Casualty Company, Plaintiff in Error.
    Gen. No. 21,581.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by Johanna Gertz, plaintiff, against the Clover Leaf Casualty Company, defendant, in the Municipal Court of Chicago, to recover on a policy of insurance. To reverse a judgment for plaintiff for $1,000, defendant prosecutes this writ of error.
    The policy sued on was issued by a company which was succeeded by defendant, and was a health and accident policy, and plaintiff, the wife of insured, was named as beneficiary. The amount of the judgment was payable in ease of death caused by accident.
    It appeared that while loading coal some lumps fell, striking Gertz on the feet or legs. At the time he gave no exclamation or indication of injury, but continued working, and neither then nor while delivering the coal or going home did Gertz mention coal falling on him. Witness was working on the opposite side of the wagon. The physician testified that the cause of death was diabetes mellitus, accompanied by a gangrenous condition of the foot incident to diabetic ulcer. It was amply proved that the insured had suffered for a long time from diabetes, and that for several years before his death had a diabetic ulcer of the foot, the ulcer being two inches broad and an inch long, exposing bones one-half inch to one inch deep. Insured meanwhile frequently complained about his foot. A few days before his death some of his fellow-workmen called on him, and to a suggestion that his foot hurt because coal dropped on it, Gertz replied: “No, I’ don’t know nothing about coal dropping on it, ’ ’ and, again, he said, “I don’t remember of any coal of any kind falling upon my leg.” He was then apparently in full possession of his faculties.
    The policy insured against, “bodily injuries, effected directly and independently of all other causes and solely through external, violent and accidental means.” It also provided: “In the event of * * * injury due wholly or in part to or resulting directly or indirectly in or from * * * any disease or bodily infirmity, or * * * infection in any form or manner. * * * The Association shall not be liable.” A further provision is: “Disability resulting from * * * abscesses, ulcers, and blood-poisoning, are classified as sickness, and are covered only under the sick benefit clauses of this policy.”
    The policy covered a variety of contingencies, with variant amounts to be paid, including not only death from accident, but loss of hands, feet, etc., indemnity while disabled from accident, partial disability, illness indemnity, and some eight or nine other contingencies, including death from sickness. It appeared that after insured died, plaintiff demanded payment of the “illness indemnity” of the policy. This was paid, as well as the amount payable, “if the death of the member results from sickness,” and she signed a receipt “in full settlement of all claims.” Plaintiff was assisted by her daughter, an intelligent girl twenty years of age. The action was tried by the court without a jury.
    Abstract of the Decision.
    1. Insurance, § 667

      —when evidence sufficient to sustain finding that insured did not die as result of an accident. In an action by the beneficiary named in a policy of accident insurance for the death of insured, alleged to be due to a lump of coal falling on insured’s foot, evidence held to sustain a finding that insured did not come to his death by accident.
    " 2. Insurance, § 421

      —-when insurer not liable under policy for death due to blood poisoning or infection. A policy of accident insurance providing that insurer should not be liable “in the event of * * * injury due wholly or in part to or resulting directly* or indirectly in or from * * * any disease or bodily infirmity, or • * * * infection in any form or manner, * * * held expressly to except death due to blood poisoning or infection through insured’s foot, alleged to have been caused by an injury due to the fall of a piece of coal on the foot.
    3. Insurance, § 488

      —when beneficiary estopped by settlement from maintaining action. In an action by the beneficiary named in a policy of accident and health insurance to recover the amount payable in case of the accidental death of insured, where the policy also provided for an “illness indemnity,” and an indemnity “if the death of the member results from sickness,” and where it appeared that after the death of insured plaintiff was paid the amounts required by the policy in the last-named cases, signing a receipt “in full settlement of all claims,” held that the action was barred, there being no evidence of fraud, and the right of action sought to be maintained depending upon contingencies and facts within the knowledge of plaintiff, so that she could settle with defendant on the basis of such knowledge, and, having done so, was precluded from asserting another claim.

      Bradley, Harper & Eheim, for plaintiff in error; Samuel A. Harper, of counsel.
    Litzinger, McGurn & Reid, for defendant in error; Edward R. Litzinger, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

4. Insurance, § 421*—when claim for payment for accidental death due to blood poisoning not within policy. Under a policy of accident and health insurance, which provides for a payment to beneficiary in case of the death of insured from sickness, a provision that disability resulting from ulcers and blood poisoning shall be classified as sickness excludes any claim for payments for accidental death, where it appears that insured died from an ulcer of the foot alleged to have been due to blood poisoning as the result of a lump of coal striking insured’s foot.


text:
    Dominick Carbanaro, Defendant in Error, v. Great Northern Railway Company, Plaintiff in Error.
    Gen. No. 21,639.
    1. Continuance, § 19

      —when motion for continuance to obtain absent witnesses properly denied. A motion for continuance to enable parties to secure the attendance of absent witnesses is properly denied where there is no sufficient showing of diligent effort before the trial to secure such attendance or of a reason why the depositions of such witnesses could not have been taken.
    2. Municipal Court of Chicago, § 13

      —when statement of claim in action by employee against railroad for negligent injuries sufficient. In an action by an employee against a railroad company to recover for personal injuries, brought under a statute of a foreign State providing that “every person or corporation operating a railroad in this state shall be liable in damages to any person suffering injury while * * * employed by such person or corporation so operating such railroad, * * * for such injuries * * * resulting in whole or in part from the negligence of any of the officers, agents or employees of such person or corporation,” statement of claim examined and held to state a cause of action.
    3. Municipal Court of Chicago, § 13

      —when statement of claim

      sufficient. A statement of claim will be deemed sufficient where no objection is made to it before trial and no objection is made to the evidence offered at the trial .on the ground of variance.
    4. Railroads—when evidence sufficient to establish operation of railroad. In an action by an employee to recover for personal injuries brought under the statute of a foreign State, where it appeared that at the time of the injury plaintiff was employed by-defendant as a section hand, held that evidence that when so injured plaintiff was pushing a hand car loaded with scrap, shovels and iron bars, on top of which was a large door, along the tracks of defendant, and was injured by the door falling upon him, was sufficient to show an operation of the railroad within the meaning of the statute making defendant liable for plaintiff’s injuries sustained by the negligence of defendant’s servants “in or about the handling, movement, or operation of any train, engine, or car on or over such railroad.”
    5. Railroads—what constitutes operation of railroad. The movement of a hand car along a railroad is as much a use and operation of the railroad as the movement of a train of cars drawn by a locomotive.
    6. Master and servant, § 737

      —when question whether section foreman negligent in placing door on top of loaded hand cm for jury. In an action by a railroad section hand to recover for personal injuries sustained as a result of being struck by a large door which fell from a hand car plaintiff was pushing -when injured, such door having been placed by defendant’s section foreman on top of a load of scrap, shovels, iron bars, etc., the question whether the foreman was negligent in placing the door on top of the load is for the determination of the jury.-
    7. Master and servant, § 626

      —when evidence of strong wind competent as bearing on negligence in placing door on top of loaded hand car. In an action to recover for personal injuries sustained by a railroad section hand as a result of being struck by a large door which fell from a hand car which plaintiff was pushing when injured, such door being placed by defendant’s section foreman on the car on top of a load of scrap, shovels, iron bars, etc., evidence that at the time of 'the accident a strong wind was blowing is competent on the question of the negligence of the foreman, either in loading the car or in failing to secure the door, or both.
    8. Master and servant, § 697

      —when evidence sufficient to sustain finding of negligence of foreman. In an action to recover for injuries sustained by a railroad section hand as a result of being struck by a large door which fell from a hand car which plaintiff was pushing when injured, such door being placed by defendant’s section foreman on the car on top of a load of scrap, shovels, iron bars, etc., a finding that the foreman was negligent, held proper under the evidence.
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Charles A. William and Robert J. Folonie, for plaintiff in error.
    Earl J. Walker, for defendant in error.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

‘ Plaintiff while employed by defendant was injured. He brought suit for damages, and by verdict of a jury was awarded $600. Judgment was entered for that amount, which defendant asks to have reversed.

Defendant first contends that error was committed by the trial- court in overruling its motion for a continuance. We cannot agree with this claim. Suit was commenced on February 6, 1914; the case was called for trial March 29, 1915. No sufficient showing was made of diligent effort to procure the absent witnesses, and no reason shown why depositions could not have beén taken. We think it reasonably clear that the -attorneys did nothing or very little in the matter of procuring evidence for the defense until a short time before the case was called for trial.

Does plaintiff’s statement of claim state a cause of action 1 We think it does. The accident happened in the State of Montana, where plaintiff was working on the railroad of defendant. The action was brought under a statute of Montana, which in part provides that:

“Every person or corporation operating a railroad in this state shall be liable in damages to any person suffering injury while he is employed by such person or corporation so operating any such railroad, * * * for such injuries * * * resulting in whole or in part from the negligence of any of the officers, agents»or employees of such person or corporation so operating such railroad in or about the handling, movement or operation of any train, engine or car on or over such railroad or by reason of any defect or inefficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. ’ ’

The statement of claim alleged the negligence of the defendant in violation of the statute, and set forth sufficient facts from which by implicatioii it was alleged that defendant was “operating a railroad” and that plaintiff received injuries while he was employed by such corporation, resulting from the negligence of agents or employees of such corporation in or about, the handling, movement or operation of a car on or over such railroad; all of this is comprehended in the allegation that plaintiff, an employee, was injured while “pushing a certain hand car over and about defendant’s tracks.” No objection was made to the statement of claim before trial, nor any objection to evidence on the ground of variance.

It is insisted that the evidence shows plaintiff was not injured through the neglig*ence of any officers, agents or employees of defendant “in or about the handling, movement or operation of any train, engine or car on or over such railroad.” The evidence shows that plaintiff was employed on defendant’s railroad as a section hand. On the day of the injury the foreman had the men load a push car with scrap and shovels, iron bars, etc., and on top of this the large door of a freight car was laid. This door on the top of the load was about level with plaintiff’s head. Plaintiff and others then proceeded to push the loaded car along the tracks, and after going some distance the door fell off on top of plaintiff, injuring him. Does this operation come within the statute 1 We hold that it does. This is in accord with the decision of the Supreme Court of the United States in Chicago, M. & St. P. Ry. Co. v. Artery, 137 U. S. 507. On page 515 the court says:

“The plaintiff was upon a moving car propelled by handpower. The movement of the car, its speed, the position of the plaintiff upon it, and the duties he had to discharge in that position, were under the direction of the foreman, who was upon the same car. The injury was directly connected with the use and operation of the railway, in whose common service the foreman and the plaintiff were * * *. The railway was being used and operated in the movement of the hand car, quite as much as if the latter had been a train of cars drawn by a locomotive.”

The statute of Iowa is similar to the Montana statute. In Cahill v. Illinois Cent. R. Co., 148 Iowa 241, the court passed upon an accident similar to the one before us and, in construing the Iowa statute, said:

“It is generally held by all courts where statutes similar to our Code, section 2071, have been enacted, that the provision is intended for the benefit of those railway employees, no matter in what department of service, whose duty for the time being exposes them to the dangers and hazards peculiar to the operation of railways. And surely when a man, in pursuance of his employment, rides, or pushes or manages a hand ear along the rails to transport tools or material or men, his service is as certainly ‘ connected with the operation of a railway’ as is the man who handles the throttle upon an engine which pulls or pushes a car loaded with gravel or other road building material. ’ ’

To the same import, under similar facts, are the decisions in Hardt v. Chicago, M. & St. P. Ry. Co., 130 Wis. 512; Steffenson v. Chicago, M. & St. P. Ry. Co., 45 Minn. 355; Rice v. Wabash R. Co., 92 Mo. App. 35; Chicago, R. I. & P. Ry. Co. v. Stahley, 62 Fed. 363.

We think it was a proper question for the jury to determine whether the conduct of the foreman in loading the heavy door on top of the load of scrap was negligence. There was evidence that a strong wind was-blowing at the time, and the jury might properly have considered that under such circumstances there was negligence of the foreman, either in the manner of loading the car or in failing to secure the door, or both. We see no reason to disagree with the conclusion of the jury.

It should be noted that the Montana statute which was introduced in evidence abolishes any defense in actions of this sort based upon assumption of "risk, negligence of fellow-servant and, in part, contributory negligence. The provision concerning contributory negligence is: “ The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”

We find no reversible errors either in rulings of the court on evidence or in giving and refusing instructions.

For the reasons above indicated the judgment is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Stefan Tyrakowski, Appellant, v. Hans A. Connell, Appellee.
    Gen. No. 21,185.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by Stefan Tyrakowski, plaintiff, against Hans A. Connell, defendant, in the Superior Court of Cook county, to recover for personal injuries sustained as a result of the alleged negligence of defendant in operating his automobile, so that plaintiff was struck by it while crossing a street. From a judgment for defendant, plaintiff appeals.
    It appeared that the defendant was driving in the right-hand street car track in Milwaukee avenue. Plaintiff started to cross diagonally between two street intersections. The distance between the right-hand rail of the right-hand track and the curb was ten feet five inches. Plaintiff testified that he looked both ways and did not see the car, or know that one was on the street until struck. Defendant testified that he saw plaintiff when he stepped from the curb; being then fifty feet away and going at the rate of ten miles an hour; that the horn of his car was sounded five or six times, but as plaintiff paid no attention he applied the brakes and locked his rear wheels, but the track was wet and the car slid and struck plaintiff. The action was tried by jury and there was a verdict of not guilty.
    Thomas E. Swanson and Elwyn E. Long, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Witnesses, § 279*—when paper signed by party not admissible for purpose of impeachment of witness. In an action to recover for personal injuries sustained by being struck by defendant’s automobile, alleged to have been negligently operated, it is not error to exclude a paper -written in court by defendant at plaintiff's request as evidence tending to impeach defendant’s testimony that he did not write a certain other paper in evidence.
    2. Evidence, § 450*—when genuineness of handwriting may not be determined by comparison with other writing. The genuineness of handwriting cannot be proved or disputed by comparison with other writing proved or admitted to be genuine unless the writing with which it is sought to be compared is properly in evidence and pertinent to the ease.
    3. Instructions, § 151*—when requested instruction properly refused. A requested instruction is properly refused where the jury are fully instructed as to the law of the case.
   Mr. Justice Baker

delivered the opinion of the court.