text:
    Ersmo Paglia, appellant, v. Chicago, Milwaukee & Gary Railway Company, appellee.
    Gen. No. 6,636.
    Action by trespasser on engine to recover for injuries caused by collision with car. Judgment for defendant. Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 4, 1919.
    C. E. Jamison and Gus S. Brown, for appellant; Karl J. Mohr and Frank M. Ryan, of counsel. A. D. Early and B. B. Early, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Peter Pelias, appellee, v. Mathew Ch Dragajtis, appellant.
    Gen. No. 6,612.
    Trial of right of property. Judgment for plaintiff. Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 4, 1919.
    Faulkner & Faulkner, for appellant. T. V. Gorey, for appellee; O’Donnell, Donovan & Bray, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    John Kane and Ella Murphy, appellees, v. William Henry Hudson et al., appellants.
    Gen. No. 6,637.
    Decree allowing solicitors’ fee of $1,000 to be taxed as costs in partition proceeding. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 4, 1919.
    J. W. Kern and C. G. Hirschi, for appellants. Wendell P. Kay, O. F. Morgan and L. P. Day, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Metta F. H. Dillon, appellee, v. Mary D. Brenneman et al., appellants. Joseph G. Dillon et al., appellees.
    Gen. No. 6,646.
    Bill to cancel assignment of stock. Decree for complainant. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 4, 1919.
    Henry C. Ward and Carl E. Sheldon, for appellants. Clyde Smith, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    M. Oltusky, appellee, v. Chicago & Northwestern Railway Company, appellant.
    Gen. No. 6,629.
    Action by consignee to recover shortgage in shipment from carrier after payment of sight draft. Judgment for plaintiff. Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed with finding of facts.
    Opinion filed April 8, 1919.
    Charles A. Vilas and Ira C. Belden, for appellant; James C. Davis, of counsel. E. V. Orvis, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Avery F. Lambert, administrator of the estate of Harrison Burdick, deceased, appellant, v. Lee B. Overman, appellee.
    Gen. No. 6,621.
    Bill for an accounting. Appeal from the Circuit Court of Will county; the Hon. Arthur W. DeSelm, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 16, 1919.
    John H. Savage and John W. Downey, for appellant. E. Meers, for appellee; O’Donnell, Donovan & Bray, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Dever

text:
    Kee and Chapell Dairy Company, Defendant in Error, v. Pennsylvania Company, Plaintiff in Error.
    Gen. No. 24,549.
    1. Abandonment, § 2*—when evidence shows property was not abandoned. In an action of replevin by a dairy company against a railroad company to recover possession of milk bottles bearing plaintiff’s mark which had been gathered up, some from dump heaps, by other persons and delivered to defendant for shipment, evidence held sufficient to show that plaintiff had not abandoned the property.
    2. Replevin, § 125*—when property identified. Milk bottles of a dairy company which had been gathered up, some from dump heaps, by certain persons, and delivered to a carrier for shipment, are sufficiently identified, in a replevin action, by evidence that bottles marked with plaintiff’s name as were those taken on the writ were manufactured for the plaintiff and that plaintiff had never parted with title to them.
    3. Replevin, § 123*—when evidence sufficient. In an action of replevin by a dairy company against a railroad company to recover possession of certain milk bottles which bore plaintiff’s mark and had been gathered up, some from dump heaps, by certain persons, and delivered to defendant for shipment, evidence held sufficient to sustain a judgment for plaintiff.

      Error to the Municipal Court of Chicago; the Hon. Edmund K. Jareoki, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 7, 1919.
    William J. Stapleton and Epstein & Feiwell, for plaintiff in. error.
    Levinson & Hoppman, for defendant in error; Arista B. Williams and L. Loewenstein, of counsel.
   Mr. Presiding Justice Dever

delivered the opinion of the court.

An action of replevin was begun in the Municipal Court of Chicago by plaintiff against defendant, and on March 17, 1918, the court entered a judgment in favor of the plaintiff that it have and retain possession of property replevied with one cent damages and costs against defendant. Defendant seeks to reverse this judgment.

It is shown by the pleadings filed in the cause and by the evidence that the plaintiff asserts ownership of 2,000 milk bottles which had been delivered to defendant, a common carrier.

It is insisted on behalf of the defendant that the plaintiff on the trial failed to prove the identity of the property or its title thereto; that it failed to make demand for the property before suing out the writ of replevin, or to tender to defendant, which is a common carrier, compensation for the benefit of persons claiming such for work, labor and moneys expended in reclaiming the bottles; that the plaintiff by its conduct had indicated an intention to abandon and relinquish all claim or title to the bottles, and that the court erred in its rulings on the admission of evidence.

The evidence heard upon the trial tends to show that at least a part of the bottles in question were gathered from a city dump and were delivered to secondhand dealers; that the plaintiff and others engaged in the milk business had established an organization known as “The Illinois Milk Dealers Association,” which association, for the benefit of plaintiff and others, had entered into an arrangement with the B. Horwich Company, under which that company was authorized, “to pick up our bottles wherever they may be found,” and one Hogenson was also employed on a salary basis to search for and locate lost bottles of the plaintiff and other dealers.

Plaintiff’s manager testified that the 2,000 bottles in question were of the same kind as bottles introduced in evidence, bearing the marks of identification hereinafter referred to; that it was the custom of plaintiff, the Bowman Company and the Borden Company, also large dealers in milk, to exchange with each other any bottles gathered by each which belonged to the others; that the plaintiff company never at any time sold its bottles; that they were delivered to customers with their contents and that plaintiff’s drivers were under instructions to return the bottles when empty to plaintiff ; that records were kept by plaintiff which showed “the loss on each route in each section of the city”; that the contracts for the bottles were made by the witness on behalf of plaintiff with glass factories; that the market value of the bottles in the fall of 1917 per gross was approximately $6.20 for quarts, $3.40 to $3.50 for pints, and $3 to $3.40 for half pints.

The evidence shows that there was blown in the bottles in question certain insignia and trade-marks in the form of shields, words indicating the capacity of the bottles and the words, “Property of Kee & Chapell Dairy Co.” While there is some evidence to the effect that money was rebated to customers on the return of empty bottles to plaintiff, it cannot be held from the evidence that the plaintiff had at any time entered into a contract with such customers for a sale of the bottles to them. It is clear from all of the evidence in the record that the plaintiff had not at any time intended to transfer its title to the bottles, even temporarily, to its customers.

The fact that the plaintiff had agreed to pay the B. Horwich Company at the rate of 15 cents per dozen for the return of its bottles does not, in our opinion, indicate anything more than an agreement to pay that company for a service performed by it for the plaintiff ; this is also true of its relations with Hogenson, who worked on a salary basis. In the course of its business considerable numbers of bottles were lost to plaintiff, but it was shown by the testimony of its manager that these losses were borne by the plaintiff and that they were not charged to its drivers; the plaintiff kept a record of its bottles and it refused to serve customers who failed to return in sufficient numbers bottles delivered to them.

The evidence also discloses that it was the practice of certain secondhand junk dealers, through their employees, to acquire junk and bottles at a city dump; that these dealers and the persons employed by them gathered whatever bottles could be found at the city dump and elsewhere without reference to whether they bore lettering indicating their ownership. One of these dealers testified that he knew that the Horwich Company was employed to gather bottles for plaintiff and other dealers and that his firm had turned over about two carloads a year of such bottles to the Horwich Company.

It was shown on the trial that as a result of a ruling of Food Administrator Hoover, milk dealers were required to sell milk to dairies at 10 cents a quart and to make a charge of 5 cents to cover the cost of the bottle, which practice did not begin, however, until October 3, 1917, the day on which the writ of replevin was issued,

The principal question presented here is whether it can be held that the record contains sufficient evidence tending to show that the plaintiff had title to the property in question at the time the writ of replevin was issued. Ziff & Berman appear to have claimed on the trial that they were the owners of the property. They did not intervene in the suit and their rights, if they have such, in the property are not directly before us for determination.

In Illinois Cent. R. Co. v. Chicago Great Western Ry. Co., 177 Ill. App. 431, a case quite similar in its essential facts to the instant case, it was held that the evidence before the trial court was sufficient to support a finding that the property in question (certain brasses) belonged to the plaintiff in the suit. In that case it appears that the Illinois Central Railroad Company had purchased all of its brasses from the Newitt Manufacturing Company; that when they became so worn as to be unfit for use they were in turn resold by the railroad company to the Newitt Company. In some manner not shown by the evidence, N. Deutsch & Company had obtained possession of a quantity of brasses and delivered them to the Chicago Great Western Railway Company. It was shown by the evidence that these brasses were made specially for the Hlinois Central Railroad Company and bore the markings “Illinois Central” or “I. C. R. R.” The Hlinois Central Company based its claim to the brasses upon the fact that it had bought them from the Newitt Company, and that without its knowledge.or consent, N. Deutsch & Company had obtained possession of them.

In the case at bar the evidence tends to show that the plaintiff had purchased its bottles of glass manufacturers who stamped thereon the trade-mark and the words indicating the ownership of the plaintiff.

In Independent Breuing Ass’n v. Cooke Brewing Co., 169 Ill. App. 347, it was held that the fact that words or signs indicating the ownership of bottles were blown therein was not conclusive as to the ownership thereof. In its opinion, however', the court said:

“While no witness could positively say that he ever saw any one of the bottles, and no witness could testify to whom beer had been sold in these identical bottles, still we think the evidence warranted the court in finding that the bottles were the bottles of the defendant in error, and that they had gotten out of its possession by sale of beer in the bottles with the agreement that the bottles were the bottles of the defendant in error, and that the purchasers had no title thereto, and no right to transfer the title thereto, and were under contract to return them to the Independent Brewing Association as its property.”

It is evident from the nature of the business conducted by plaintiff that a considerable loss of bottles is a necessary incident to carrying on the business, and the evidence shows that the plaintiff and other milk dealers had taken reasonably efficient steps to recover such bottles as might, in one way or another, become lost. It is clear from the evidence that the bottles used by plaintiff were too valuable to permit their abandonment after their initial use as milk containers. The quart bottles cost approximately 4% cents each, and in the normal course could be used an indefinite number of times for milk deliveries. In any event the evident conclusion of the trial court that, the property was not abandoned by the plaintiff finds support in the evidence. That some of these bottles were found at the city dump, as contended, is not conclusive as to plaintiff’s title. If it be conceded that this be the fact, their presence there unaccounted for does not necessarily show, when the character of the bottles and the use to which they are put are considered, that the plaintiff had abandoned its right to them. It is not shown by the evidence that any other bottles were manufactured, sold or dealt in, bearing similar indelible markings to those on the bottles in question in this suit, and that plaintiff would abandon property so valuable and so necessary to its business is highly improbable.

Plaintiff’s title to the property replevied is strongly supported by the evidence admitted on the trial. The bottles were sufficiently identified on the trial by the evidence that bottles marked as were those taken on the writ were manufactured for the plaintiff and that plaintiff had never parted with its title thereto.

In Livermore v. White, 74 Me. 452, a ease relied upon by defendants, the court said:

“The title of the finders vanishes when the owner is known. These goods were not lost. The facts negative a loss by the owner.”

St. Louis Dairy Co. v. Northwestern Bottle Co. (Mo.), 204 S. W. 281, is very similar in its facts to the case at bar. In the syllabi of that casé it is stated: “Abandonment is a conscious purpose on the part of the owner of personal property to so treat the same as to manifest an intention to thereafter neither use nor retake it into his possession, and where the owner of personal property either throws it away himself or knowingly permits another to throw it away, having no intention to either again use or take such property back into his possession, such acts constitute abandonment. ’ ’

Ziff & Berman on the trial appear to have claimed ownership of the bottles replevied, notwithstanding the fact that they seem to have had knowledge of the methods employed by plaintiff and other milk dealers to gather, assort and return bottles, at considerable expense, to their rightful owners. We are of opinion that a strong presumption arises from the evidence in favor of plaintiff’s claim to the bottles. Independent Brewing Ass’n v. Cooke Brewing Co., 169 Ill. App. 347; Whitman v. Muskegon Log Lifting & Operating Co., 152 Mich. 645.

The evidence shows that on October 3, 1917, an agent of plaintiff, having information that the milk bottles were in the possession of defendant, made demand therefor upon its “chief agent” or his assistant, who, in reply to a statement made by plaintiff’s agent that “there is a carload of milk bottles going away belonging to the people I am representing. I am going to take these bottles out,” said, “If you are going to take them out, you have got to take them out legally.” Under the circumstances it was not to be expected that the common carrier would relinquish possession of the property to a claimant unless title was established thereto in a legal proceeding, and plaintiff’s agent was justified in interpreting the remark of defendant’s agent as having this meaning. Clearly, as between the defendant, Pennsylvania Company, and the plaintiff,the evidence warrants the finding and judgment of the trial court.

The judgment of the Municipal Court will be affirmed.

, Affirmed.


text:
    In the Matter of the Estate of Robert H. Law, Deceased. Elizabeth A. Ware, Claimant, Appellee, v. Mary L. Law, Executrix, Appellant.
    Gen. No. 24,691.
    1. Executors and administrators, § 543

      —how far order approving administrator’s account conclusive. The order of a Probate Court, in an estate in which one of the two administrators filed a sworn partnership inventory, in which he, as sole surviving partner, claimed an interest in the partnership property, and in which the administrators were heirs, approving the final report and account was conclusive on the rights of the surviving partner and may not he collaterally attacked hy the other heir, in proceedings to enforce a claim against his estate for conversion of partnership' assets.
    2. Fraud, § 47*—when laches inapplicable. Where a cause of action arises from fraud, laches will not apply in equity until the discovery of the fraud or until the fraud could have been discovered by the exercise of reasonable diligence.

      3. Fraud, § 33

      —when failure to discover fraud excused. The failure to exercise diligence to discover fraud is excused where there is a relation of trust and confidence existing, such as between co-administrators who are also coheirs, which renders it the duty of the party committing the fraud to disclose the truth to the other.
    4. Witnesses, § 132*—what testimony incompetent against personal representative. In proceedings by an heir against the estate of another heir to enforce a claim for fraud in conduct of a partnership in which the latter heir was interested with his father, and of whom he and claimant were heirs, and in which the issue was the perpetration of fraud by the latter heir upon claimant, evidence of claimant that she first became apprised of the fact that she had a claim against her brother, the latter heir, when she was informed thereof by her counsel some time after her brother’s death, as bearing upon the question of applicability of the statute of limitations and relating to the question of laches, was incompetent as against the executrix of the latter heir, under section 2, ch. 51, Rev. St. (J. & A. 5519), as relating to facts occurring and existing during the lifetime of .such latter heir.
    Appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed April 7, 1919.
    Holt, Cutting & Sidley, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.

      Soe 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 Dever

delivered the opinion of the court.

This is an appeal by Mary L. Law, executrix, from a judgment of the Circuit Court of Cook county, in favor of Elizabeth, A. Ware.

Robert Law died February 24, 1898. On March 4, 1898, said Elizabeth A. Ware and Robert H. Law, deceased’s children and only heirs, were appointed administrators of his estate. About March 25, 1898, as administrators,, they filed a joint inventory of all the estate of said Robert Law, which inventory was approved by the Probate Court of Cook county on July 25,1898. Robert H. Law, on July 26,1898, filed in the Probate Court in said estate a sworn partnership inventory in which he, as sole surviving partner in the firm of Eobert Law & Company, stated that Eobert Law, deceased, had a two-thirds interest and that he, said Eobert H. Law, had a one-third interest in said copartnership. This inventory was approved by the Probate Court July 26,1898. On the same day, Eobert H. Law filed another partnership inventory in which he claimed that he, Eobert H. Law, and deceased, Eobert Law, had each a one-half interest in a business conducted under the name of Eobert Law. This inventory was approved on the same day, July 26, 1898. On April 20, 1900, a final report and account sworn to by Eobert H. Law and Elizabeth A. Ware, as administrators of the estate of Eobert Law, deceased, was approved by the Probate Court and thereafter on the same day said administrators were discharged as such by order of the court.

Eobert H. Law died testate on May 14,1915, leaving him surviving Mary L. Law, his widow, and Elizabeth A. Ware, his sister, his only heirs at law and next of kin. Mary L. Law was named in the will as sole legatee and devisee and she was duly appointed executrix of said last-mentioned estate. A bill was filed by Elizabeth A. Ware in the Superior Court of Cook county to contest this will. The present claim is based on changes that Eobert H. Law, a surviving partner, had converted to his own use $2,547.24, which should have been paid to complainant by him, and that he had improperly converted to his own use three-fourths of the partnership assets of the business conducted under the name of Eobert Law & Company, and that he, Eobert H. Law, had falsely represented to complainant that he was the owner of a one-half interest in the property of the alleged firm of Eobert Law.

Elizabeth A. Ware on April 24, 1916, filed in the Probate Court of Cook county a claim against the estate of Eobert H. Law, deceased, in which she assorted that the estate of Eobert H. Law, deceased, was indebted to her in a large sum. On March 21, 1917, the Probate Court disallowed the claim, but upon appeal of the cause to the Circuit Court of Cook county the claim was allowed for a total sum of $131,594.64. The executrix, Mary L. Law, by her appeal to this court seeks to reverse the order allowing the claim.

Much evidence was introduced on the trial on the issue presented as to whether the deceased, Eobert H. Law, in fraud of the rights of claimant had falsely represented his partnership interest in a hard-coal business conducted by deceased, Eobert Law, under the name of “Eobert Law,” and much argument is presented in the briefs of counsel in this court on this question. In the view we take, however, of the law applicable to the case, it will not be necessary to determine this much disputed question of fact.

It is insisted for Mary L. Law, executrix, that the Probate Court in the matter of the settlement of estates of deceased persons is a court of superior, though limited, jurisdiction, and that its order approving the final report and account of the administrators of the estate of Eobert Law, deceased, was final and conclusive of the rights of Elizabeth A. Ware, one of the administrators of said estate; that the proceedings in the estate of Eobert Law, deceased, were in rem and were binding not only upon the parties but on all the world. The administrators of the estate of Eobert Law, deceased, one of whom was Elizabeth A. Ware, the claimant, in their final report and account, which was approved by the Probate Court, said:

“That said decedent was, during his lifetime, a member of the respective co-partnerships of Eobert Law and of Eobert Law & Company. That said Eobert Law, deceased, held a one-half interest in the co-partnership known as Eobert Law and held a two-third’s interest in the co-partnership known as Eobert Law & Company.”

The order approving the final account and report was entered of record on the 20th day of April, 1900, and the claim of Elizabeth A. Ware against the estate of Eobert H. Law, deceased, was filed on April 24, 1916, about 16 years after the estate of Eobert Law, deceased, had been finally settled and the administrators discharged.

The questions of the partnership interest in the alleged business conducted, at least in part, by Eobert Law, deceased, were clearly before the Probate Court for adjudication!

In the case of Starr v. Willoughby, 218 Ill. 485, an executor failed, before his discharge as such, to sell certain real estate as directed by the will, and it was held that the discharge of the executor did not revoke the power given to him by the will to malee the sale.

In Riverside Co. v. Toumshend, 120 Ill. 9, it was held in effect that where a fact is not essential to the validity of a judgment or is not controlled in the decision of a case it is not res judicata in a subsequent suit between different parties.

In the instant case, however, the interest of Eobert Law, deceased, in the business conducted, at least in part by him, was determined by the Probate Court, and the determination of this fact was the necessary consequence of the official conduct of the claimfant herself, who signed and swore to the final report and account as an administrator of the estate. She insists that by the improper conduct of her eoadministrator she was defrauded, as heir of Eobert Law, of a large interest in his estate. She did not, however, see fit to move to set aside the adjudication of the Probate Court for the alleged fraud by action in that court in the estate of Eobert Law, deceased. She sought her remedy by filing a claim against the estate of Eobert H. Law, deceased, some months after his death and 18 years after the death of Eobert Law.

The interesting question presented to this court is whether the adjudication of the Probate Court as to the interests in the partnership property inventoried in that court can be set aside by an order entered in another and different estate. We are inclined to the view that it cannot.

In Hosier v. Osborn, 284 Ill. 141, it was held that:

“The administration of an estate in the Probate Court is not an action between party and party but is in the nature of a proceeding in rem acting directly on the res, which is the estate of the deceased. If the court has jurisdiction of the estate and the jurisdiction is properly invoked the decree of distribution is a judgment in rem, which conclusively determines the rights of all parties interested just as fully as a decree in admiralty or any other court.”

In that case it was held, in effect, that a decree rendered against a party who is beyond the limits of a State, upon a constructive notice, could effect property within the jurisdiction of the court, and that an order entered in the final settlement of the estate would upon constructive notice bind such party as to his interest in personal property.

In the case at bar the claimant’s, Elizabeth A. Ware’s, interest as heir in the estate of her deceased father was directly before the Probate Court for adjudication, and this includes her interest in the inventoried partnership property. She was before the Probate Court as heir and as an administrator of the estate, and on the record made in that estate it appears that she was not only a party to the proceedings, but that the order which fixed the interests in the partnership property was brought about quite as much by her act and conduct as by that of her brother, Bobert H. Law, deceased.

It is urged that the question as to whether a partnership estate existed was “not presented, .involved, considered or decided by the Probate Court”; that this question was not material to any issue raised in that court and that Bobert H. Law and Elizabeth A. Ware could not be considered as occupying adversary positions in that court. We are unable to agree with this contention. The partnership estate, whatever the quality or the interest therein of deceased Eobert Law or his son, was dirctly before that court for adjudication.

In O’Connell v. Chicago Terminal Transfer R. Co., 184 Ill. 308, it was held:

“Every person is privy to a judgment or decree, who has succeeded to an estate or interest held by one who was a party to such judgment or decreé, which succession takes place after the bringing of the action. ’ ’

It was also held in that case that it made no difference as to the binding force of a decree as against parties or privies thereto whether the decree was entered by consent or otherwise. The court there said: “Even if entered by consent of the village, it was binding upon those who are in privity with the village.”

Our conclusion is that the order of the Probate Court entered in the estate, of Eobert Law, deceased, was conclusive as to the rights of deceased in the partnership properties inventoried in said estate; that the order of the Probate Court adjudicating such rights is of binding force as against Elizabeth A. Ware, the claimant, and that it is not permissible for her to attack such order in a collateral proceeding.

It is also urged that the claim of Elizabeth A. Ware against the estate of her deceased brother, Eobert H. Law, is barred by the statute of limitations. In considering this question, it should be borne in mind that the claimant and Eobert H. Law, deceased, were co-administrators of the estate of Eobert Law, deceased, and that they were the only heirs at law of said deceased. We think, therefore, that there is merit in the contention that each in a sense bore the relationship of trustee towards the other.

In the case of Voorhees v. Campbell, 275 Ill. 292, it was held:

“It is insisted, however, that the cause of action is barred by the laches of plaintiff in error. Where a cause of action arises from fraud, laches will not apply in equity until the discovery of the fraud or until the fraud could have been discovered by the exercise of reasonable diligence. The failure to use diligence is excused where there is a relation of trust and confidence which renders it the duty of the party commit-' ting the fraud to disclose the truth to the other. (Farwell v. Great Western Tel. Co., 161 Ill. 522; Penn v. Fogler, 382 Ill. 76.) There being here a relation of trust and confidence, the duty to exercise reasonable diligence to discover the fraud did not rest upon plaintiff in error, and it does not appear that he was in possession of all the facts relative to the fraud which had been practiced upon him until the institution of this suit. ’ ’

If it can be said that the evidence shows that Bobert H. Law, deceased, prior to his death bore the relationship of trustee towards the complainant, then under the holding in the Voorhees v. Campbell case, supra, her failure to use diligence, if such be the fact, would be excused. If it can be held that she was required to exercise due diligence to discover the alleged fraud, then the statute of limitations would begin to run" against her from the time that the evidence shows that she knew, or that she might by the use of diligence have discovered, the alleged fraud. Ater v. Smith, 245 Ill. 57. It is our opinion, however, that, whatever the law of this question may be, the issue of her knowledge or diligence to discover the fraud was, on the record before us, a question for the determination of the chancellor, and that the evidence admitted is of such character that we do not feel called upon to interfere with his conclusion thereon.

It is also contended that the court erred in admitting certain testimony of the claimant. The witness, over objection, testified that she first became apprised of the fact that she had a claim against her brother arising out of the adjudication of the partnership interest in the estate of Bobert Law, deceased, when she was informed thereof by her counsel some time after her brother’s death. It is contended that her testimony was incompetent as against the executrix of her deceased brother’s will, under Section 2, chapter 51, of the Revised Statutes of Illinois. (J. & A. 5519); that such testimony was inadmissible because it relates to facts which occurred and existed during the lifetime of Robert H. Law. "We are inclined to agree with this contention. The only exception made under the statute to the inadmissibility of the testimony of a party directly interested in the event of a civil action, where the advérse party sues or defends as an executor, administrator, etc., is provided for in the following sentence of the statute:

“But in any such action, suit or proceeding a party or interested person may testify to facts occurring after the death of the deceased person.”

This testimony was material on the question raised as to the application of the statute of limitations. The testimony is in its inherent quality self-serving in character. The main fact in issue was whether claimant’s deceased brother had imposed a fraud upon her.

Whether he did so act was a question concerning a fact existing prior to his death. As we understand the law, the evidence showing that a relationship of trust and confidence existed betwe'en claimant and her deceased brother, it would not be incumbent upon her in a proper proceeding* to prove when she acquired knowledge of the fraud, in the absence? of evidence tending to prove that she acquired such knowledge at some time prior to the death of her brother. Voorhees v. Campbell, supra.

The evidence of the witness was not in rebuttal or denial of any specific evidence introduced on the trial. It was not a part of the res gestes of the case.

The purpose of the questions put to the witness was to elicit a statement from her concerning the state of her mind as it was both before and after the death of her brother, and she testified that she was in ignorance of* the alleged fraud until her counsel informed her of it after the death of her brother. Testimony as to the state of the witness’ mind prior to the death of her brother referred to a fact existing before his death, and it was not permissible for her to testify concerning a fact so existing. The materiality of the evidence concerns the question of the applicability of the statute of limitations and involves a consideration of the question as to whether the witness had been guilty of laches.

In view of what has been said in the Supreme Court in the Voorhees v. Campbell case, supra, we are not certain that the error, if it was such, was so serious as to warrant a reversal of the judgment. We think, however, that this testimony should have been excluded. Telford v. Howell, 220 Ill. 52. The material question in this connection was not as to when the claimant first discovered the alleged fraud, but whether she had been guilty of laches in failing to discover it during the many years preceding the tiling of her claim in her deceased brother’s estate. But whatever may be held to be the law as to this question, it is our opinion that the judgment of the Circuit Court should be reversed for the reason that the approval of the final report and account of the administrators of the estate of Robert Law, deceased, cannot be attacked by one of such administrators in a collateral proceeding.

The judgment of the Circuit Court of Cook county will be reversed.

Reversed.


author: Mr. Justice Holdom

text:
    Fred Krug, by Nellie Carlin, Appellee, v. Walldren Express & Van Company, Appellant.
    Gen. No. 24,650.
    1. Damages, § 120

      —when not excessive. A verdict for $12,500 for complicated injuries to a boy 15 years of age, rendering him a cripple for life, held not excessive.
    2. Tbial, § 130*—what argument proper. Remarks of counsel for plaintiff in argument in a personal injury case that his client was “an American boy” were proper.
    3. Tbial, § 142*—when argument as to damages proper. Remarks by plaintiff’s counsel in argument in a personal injury case as to the compensation his client should receive, held proper where they were simply an effort to offset the estimate made in argument by defendant’s counsel as to what compensation should be admeasured to plaintiff.
    4. Appeal and error, § 1621*—when unresponsive answer cured by striking. The withdrawal of a juror and continuance of a personal injury case on the ground of an improper answer of a witness for plaintiff was properly denied where the unresponsive answer of the witness was stricken out.
    5. Negligence, § 91*—effect of contributory where defendant’s acts are wilful. The question of contributory negligence of a person injured by the negligence of a servant of another cannot be considered where such negligence was wilful and wanton.
    6. Automobiles and garages, § 2*—what constitutes wilfulness as to boys playing in street. The driver of an automobile truck is guilty of wilful negligence, where he sees boys playing ball in the street, and proceeds on his way recklessly and injures a boy who is running towards the home plate, oblivious to the danger, notwithstanding the absence of the element of ill-will towards plaintiff.
    7. Automobiles and garages, § 2*—illegality of games in street as affecting right to recover for injuries. The fact that a boy who was injured by an automobile truck, driven by the servant of another, was playing baseball on the street in violation of a city ordinance will not debar a recovery where such playing was not the proximate cause of the accident and the accident occurred through the wilful and wanton conduct of such driver.
    8. Automobiles and garages, § 3*—when ordinance limiting speed admissible. In an action against the owner of an automobile truck by a boy to recover for personal injuries due to the negligence of a servant of defendant, where the declaration charged careless and negligent driving, and there was evidence to sustain the charge, a speed ordinance was admissible in evidence.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 7, 1919.
    John A. Bloomikgstok, for appellant.
    Quik 0 ’Brisk, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Defendant appeals from a judgment against it for $12,500 entered upon the verdict of a jury in an action for personal injuries.

There are four counts in the declaration, three of which aver negligence in varying forms against defendant as the proximate cause of the injuries to plaintiff, and the fourth count avers that defendant’s servant, in the operation of its truck upon the occasion in question, when danger was imminent, carelessly, recklessly and wantonly ran the same upon and against plaintiff, thereby seriously injuring him. The cause proceeded to trial under this declaration with an unimportant amendment to the second count and defendant’s plea of not guilty.

The accident to plaintiff happened March 31, 1916, when he was nearly 15 years of age and a schoolboy. The place of the accident was Thomas street, Chicago, a densely populated residential neighborhood. The time of the accident was about sunset. The manner of its occurrence was in brief that plaintiff with other boys was playing a game of baseball in the roadway where various kinds of vehicles were driven. The boys had made a baseball diamond, the first and third bases of which were at opposite street curbs, and the home plate and second base were in the center of the street. The truck of defendant at the time of the accident was running in Thomas street towards the home plate. Plaintiff Krug had batted the baseball so dexterously and far that he and the boys naturally concluded that he then faced what is known in baseball parlance as a “home run.” Plaintiff ran swiftly around the bases with his mind intent on reaching the home plate. When he was running as fast as he could from third base towards the home plate, the truck of defendant, driven behind plaintiff by defendant’s servant, rapidly overtook the boy, whose mind was so intent on the objective home plate that he was not conscious of the fact that the truck was in the street, and he was struck by it and very seriously injured. While darkness was coming on, there was plenty of light for the boys to play ball and for the driver of the truck to so operate his truck, in the exercise of ordinary care, as to have easily avoided striking the boy. The truck when it struck plaintiff was to the left of the middle of the street when, according to the rule of the road, it should have been driven to the right of the middle of the street.

After plaintiff was struck by the truck he was found to be bleeding at the nose, mouth, ears and head, and to have wounds on both his legs. His nose was broken, as also his lower and upper jawbones, which had to be plated and wired together; he lost some of his teeth, and had a wound on his head and a bone depression of the skull over the left eye; he also suffered the fracture of three ribs. Two bones in the right leg were broken and the right ankle bonés, ligaments, tissues and skin were crushed and the ankle so badly injured as to leave plaintiff with a stiff and deformed clubfoot on that leg. He also suffered a diagonal compound fracture of the left leg, and from infection caused by the" dirt of the street being ground into his wounds. The left leg is shortened 2 inches; the injury to his nose prevents him from breathing through one nostril, and the sum total of plaintiff’s injuries have left him a cripple for the rest of his.life. He has in consequence of his injuries undergone several surgical operations, has suffered much pain on account of his injuries, and was rendered helpless for many months while he was under medical and surgical treatment.

It is argued for reversal: (1) that the verdict is grossly excessive; (2) improper remarks of plaintiff’s counsel to the jury; (3) error in the giving and refusing to give instructions; (4) error in .the court’s refusal of defendant’s motion to withdraw a juror and continue the cause because of an alleged improper answer of a witness to a question put by plaintiff’s counsel ; and (5) that the court should have granted defendant’s motion for a directed verdict because plaintiff was guilty of contributory negligence, and because there was no evidence justifying the finding of the jury that plaintiff’s injury was wantonly and wilfully inflicted. We will pass upon these contentions in the order recited.

First: The question of damages was a matter for the jury, and we are satisfied that the amount assessed is not only not excessive, but that it is not fully compensatory for the serious and painful injuries suffered, resulting in the permanent crippling of plaintiff, who from the threshold of his career will be compelled to go through life seriously handicapped physically as the result of the injuries which he received and for which defendant is, as respondeat superior, liable for the reckless, wanton and wilful conduct of its servant. Larger verdicts have been sustained by this court for injuries less serious than those suffered by plaintiff.

Second: We find nothing in the argument of plaintiff’s counsel to the jury that was improper. All the argument complained of was in reply to observations made by defendant’s counsel in his argument to the jury. We are hardly convinced that the reference by counsel to his client as “an American boy,” being It ut the statement of a bald and patent fact, was improper or a subject for censure by the court or for the penalizing of the injured client, particularly when defendant’s counsel, in accounting for the absence of a material witness, laid stress upon the witness being in the service of his country beyond the seas in the American Aviation Corps. Such remarks of both counsel were not only proper but ethical. The arguments of counsel regarding presumption arising from the violation of the State Motor Law and the compensation which his client should receive for his injuries were both permissible, especially that pertaining to the latter, which was simply an effort to offset the estimate made in argument by defendant’s counsel as to what compensation should be admeasured to plaintiff. Graham v. Mattoon City Ry. Co., 234 Ill. 483.

Third: In the view we take of this case, the rulings of the court on instructions to the jury, if erroneous— which we do not concede—had no baneful effect upon the rights of defendant.

Fourth: If we should give effect to this assignment of error, the wheels of justice would be retarded beyond measure. The court’s ruling upon the answer of the witness was all-sufficient as a corrective. The question, “What did you see the truck do?” was proper, although the answer that, “It came near striking a boy named Bingo on Campbell avenue,” might not be exactly responsive; still, it being stricken out with the consent of plaintiff’s counsel, the impropriety of the answer worked no injury to defendant. Furthermore, we are not prepared to say that the answer was not responsive and, as part of the res gestae, pertinent. It was something that happened immediately preceding the accident to plaintiff and tended to show the manner of the operation of the truck by defendant’s servant at that time.

Fifth: While the testimony of plaintiff’s several witnesses was not entirely harmonious on certain points, a careful perusal and weighing of it convince us that the jury might reasonably find therefrom that the servant of defendant was at the time and place of the accident driving the truck at a speed violative of the city ordinance regulating the speed of motor vehicles ; that the accident happened by reason of the reckless, wanton and wilful manner in which the truck was driven; that the plaintiff was struck and severely injured by the truck of defendant in the manner detailed by the witnesses of the plaintiff upon the trial; and there being no countervailing proof on the part of defendant which rebutted such evidence, the motion to direct a verdict was properly denied.

We have no doubt that the jury believed from the evidence, as do we, that the accident was caused by the reckless, wilful and wanton conduct of the servant of defendant in driving the truck which struck and injured plaintiff. Under these circumstances, the question of the contributory negligence or want of due care on the part of plaintiff was eliminated from the case.

There is no doubt that plaintiff, boylike, was intent only upon making the home run on his hit, was oblivious of his environment and had no conscious knowledge of either the approach or'presence of defendant’s truck in the street.

It is argued that if defendant’s servant acted wantonly and wilfully, likewise did plaintiff act, and it is -urged therefrom in effect that the parties being in pari delicto, the law will not afford relief to either. Lund v. Osborne, 200 Ill. App. 457. This contention is untenable because the plaintiff could not be guilty of wanton or wilful conduct, as such conduct must spring from a conscious intent to act in a wilful and. wanton manner, and the evidence shows, as we have above said, that plaintiff was oblivious at the time of his environment. It is, however, inferable from the evidence that defendant’s servant drove the truck at the time of the accident at an unlawful rate of speed; that jt was driven in a wanton and wilful manner; that the driver could, in the exercise of ordinary care—and we must therefore believe that he did—observe his environment and, among other things, the boys in the street' at their play. Both law and humanity required that, confronted with this • condition, he should have proceeded with due care and circumspection not to needlessly injure any of the children in the path of the truck. Instead of so gauging his conduct, he proceeded with a conscious disregard of the effect of his conduct and drove the truck recklessly, regardless of the consequences. The truck literally chased the boy, who was unaware of the jeopardy in which the conduct of the driver of the truck placed him, and through such wanton and wilful conduct on the part of the driver the accident to plaintiff occurred. The driver was guilty of such a lack of care for. the rights of others as implies either a disregard of consequences or a willingness to inflict injury, which conduct constitutes wilful negligence, notwithstanding the absence of the element of ill-will towards the injured plaintiff. Illinois Cent. R. Co. v. Leiner, 202 Ill. 624; Lund v. Osborne, supra.

In order to constitute wilful or wanton negligence, it is not necessary to show ill-will against the particular person injured; but, as in the instant case, where there is an entire absence of care for the life, person or property of others, exhibiting indifference to disastrous confequences, it is wilful. Neice v. Chicago & A. R. Co., 254 Ill. 595; Chicago Terminal Transfer R. Co. v. Kotoski, 199 Ill. 383; Illinois Cent. R. Co. v. Leiner, supra.

While it is true that plaintiff was playing baseball in Thomas street in violation of a city ordinance prohibiting the playing of sports or games in the street, that fact does not debar a recovery for two r'easons: First, such playing was not the proximate cause of the accident; and second, the accident occurred through the wilful and wanton conduct of the driver of the truck. Star Brewery Co. v. Hauck, 222 Ill. 348.

It is also insisted that the speed ordinance was not admissible in evidence under the pleadings. The declaration charged careless and negligent driving, which there was evidence to support. These conditions were sufficient to make the ordinance admissible as evidence. Star Brewery Co. v. Hauck, supra.

The verdict and judgment are supported under the fourth count of the declaration and do justice between the parties; therefore the judgment of the 'Superior Court is affirmed.

Affirmed.


text:
    Lockwood & Strickland Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 24,737.
    T. Municipal corporations, § 879

      —what is nature of title to streets. The title to streets and alleys is in the municipality for the public use, and the municipality, both in the laying out of the streets and alleys and in vacating the same thereafter, acts in and for the interest of the public and not in the interest or for, the benefit of individuals.
    2. Municipal corporations, § 926*—when street vacating ordinance not invalid. The validity of a street vacating ordinance is
    not affected by the fact that the title to a vacated street or alley reverts under the terms of the ordinance to the dedicator or adjoining' owner and thereby becomes private property.
    3. Municipal corporations, § 106*—when parol evidence of purpose of ordinance inadmissible. Parol evidence is inadmissible to show that a street vacation ordinance was passed for private benefits where such parol evidence is dehors the provisions of such ordinance.
    4. Municipal corporations, § 85*—right to consider motives of council in passing ordinance. The motives influencing a city council in passing a street vacation ordinance are not the subject of judicial inquiry.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. G-kidley, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 7, 1919.
    Rehearing denied April 21, 1919.
    Samuel A. Ettelson, for appellant; Henry T. Chace, Jr., Frank S. Eigheimer and Chester E. Cleveland, of counsel.
    Winters, Price arid Stevens and George W. Underwood, for appellee; George M. Stevens and Julian Clay Eisk, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This case is here for the second time. A statement of the case and the divergent- views upon the law of the senior and junior courts of review in this State may be found in 279 Ill. 445 and 203 Ill. App. 336.

The cause came to this court and the Supreme Court upon a demurrer to the declaration which had been sustained by the trial court and which on appeal this court affirmed, but on further review this court’s judgment was reversed and the cause remanded by the Supreme Court with directions to overrule the demurrer with leave to defendant to plead.

Upon remandment plaintiff amended its pleading by adding thereto the common counts. Defendant filed pleas of the general issue, the 5-Year Limitation Statute, two special pleas attacking the ordinance and its provision for indemnity, and averring illegality and fraud., A general demurrer to these two pleas was sustained, and defendant, electing to stand by its pleas, the cause proceeded to trial under the declaration, the plea of non assumpsit and the limitation statute. At the conclusion of the proofs plaintiff in the usual way moved for an instructed verdict and for an assessment of damages at $2,694, which, being allowed, a verdict was accordingly rendered and a judgment entered thereon, and defendant appeals.

From the opinion of the Supreme Court, supra, it is evident that they regarded the declaration as in all respects sufficient in law to entitle plaintiff to recover upon furnishing sustaining proof. This requirement being fully met, the judgment is invulnerable to attack unless the additional pleas to which a demurrer was sustained present a legal defense. The controversy now hinges upon the assumed potency of such pleas as a defense in avoidance of the obligation of the city created by the ordinance in question.

Two of the special pleas sought to avoid the ordinance upon the theory that parol testimony was available to prove that the ordinance was procured by illegality and fraud and that the money paid under the ordinance was in fact paid as compensation for vacating the alley for the benefit of plaintiff; that in this condition the law was not available to either party for relief.

The 5-Tear Limitation Statute is clearly unavailable as a defense, as plaintiff’s right of action did not mature until 5 years after the passage of the ordinance, when the city was by the efflux of time relieved from any claim for damages resulting from the passage of the vacation ordinance which might be made by third parties. As to plaintiff, the limitation statute commenced to run after that 5-year period.

The claim of illegality and fraud is at least novel. This claim rests in the insistence that there was an understanding between plaintiff and some officers of the city and members of the city council that the money paid under the vacating ordinance was not paid to satisfy the condition of the ordinance exacting such payment, but was in fact paid as compensation to the City for vacating the alley for the benefit of plaintiff, contrary to the ruling of the Supreme Court in case, supra, that the City had no such proprietary interest in the alley which it could barter away for a money consideration. The title to streets and alleys is in the municipality for the public use, and the municipality, both in the laying out of streets and alleys and in vacating the same thereafter, acts in and for the inter-' est of the public and not in the interest or for the benefit of individuals.

That the title to a vacated street or alley reverts under the terms of a vacating ordinance to the dedicator or the adjoining owner and thereby becomes private property, in no way affects the validity of such ordinance. Moreover, parol evidence is not admissible to show that a vacation ordinance was passed for private benefits where such parol evidence is dehors the provisions of such ordinance. Hill v. Kimball, 269 Ill. 398.

In the instant case, supra, the Supreme Court held that a municipality had a legal right to require an indemnity as a condition precedent to the vacating of a street or alley, to protect such municipality from liability for damages to third parties. The motives influencing a city council in passing a vacating ordinance is not the subject of judicial inquiry. City of Amboy v. Illinois Cent. R. Co., 236 Ill. 236.

There is no reversible error in this record and .the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Rothschild & Company for use of London Guarantee & Accident Company, Appellee, v. John Griffiths and George W. Griffiths, trading as John Griffiths & Son, Appellants.
    Gen. No. 24,753.
    1. Judgment, § 502

      —when judgment against principal for negligence conclusive in action over against contractor. The decision in an action by a person against a department store for personal injuries sustained by tripping on a canvas laid on the floor of the store by a painting subcontractor was conclusive, in an action by the department store against the contractor for indemnity for loss sustained by payment of the judgment, as to all matters decided, including the absence of contributory negligence, but was not conclusive as to the undecided question of negligence of the contractor, although he was a party.
    2. Negligence, § 46*—when contractor liable over to owner of building against whom judgment was recovered. The fact that a building was not in the possession of contractors at the time of an accident to a person due to tripping on a canvas placed on the floor of the building by subcontractors, but was in possession of the owner, will not relieve the contractors from liability under the building contract to reimburse the owner for a judgment paid to the injured person if the negligence which caused the accident is attributable to the contractors.
    3. Covenants, § 3*—effect of covenant not to sue on rights of third person. The covenant of a person who was injured in a building, due to tripping on a canvas placed on the floor by subcontractors, not to prosecute the contractors, while binding between the parties, in no wise affected the liability of the contractors, if any, to respond in an “action over” for damages suffered by the owner due to payment of a judgment in favor of the injured person.
    Appeal frofii the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 7, 1919.
    Winston, Strawn & Shaw, for appellants; John D. Black and Frank H. Towner, of counsel.

      F. J. Canty and E. J. McArdle, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Defendants were general contractors for the erection of a building for Eothschild & Company. The usee in the suit, the London Guarantee & Accident Company, was surety upon an indemnity "bond. The affidavit of merits of defendants was on motion of appellee stricken, and as appellants elected to stand upon this affidavit the court proceeded as in case of default for want of a plea and assessed plaintiff’s damages at $4,476.12 and gave judgment thereon, to reverse which judgment this appeal is prosecuted.

The points urged for reversal resolve themselves into one contention, viz.: that the court erred in striking the affidavit of defense and in proceeding to judgment as it did.

The following facts are not denied: That defendants were general contractors for Eothschild & Company in the construction of a building in which an accident occurred to one Elizabeth Baxter through the negligence of a painter, a subcontractor of defendants; that defendants gave a bond of indemnity against liability for accidents occurring through their negligence under the terms of the general contract; that in the Baxter suit for such negligence there was a judgment for $2,500 against Eothschild & Company in the Circuit Court of Cook County, which was affirmed on-'appeal to this court and a petition to the Supreme Court for a writ of certiorari for further review refused.

In the Baxter suit defendants were originally joined with Eothschild & Company as defendants. Before trial they bought their peace, received from Baxter a covenant not to sue and were thereupon dismissed out of the case. These are not disputed facts.

All the particulars in the Baxter suit will be found in the opinion of this court abstracted in 204 Ill. App. 346.

The negligence averred in the Baxter suit as the cause of the accident was that the painting contractor had laid a heavy canvas on the floor in front of elevators of the Rothschild Company to serve as a drop cloth. Baxter was descending from an upper to the main floor in an elevator furnished by the Rothschild Company for that purpose, and in stepping out of the elevator to the floor she tripped and fell upon an uneven, rough canvas in front of the elevator; one of her feet caught in a fold or loop of the canvas, throwing her to the floor and injuring her. In paragraphs 15-19, both inclusive, of the affidavit of defense, defendants deny that they maintained a canvas; that they were guilty of any negligence in laying the canvas; that they or their subcontractors contributed in any degree to the injuries of Baxter; that the amounts mentioned in paragraphs 28-34 of the amended statement of claim were expended by the Rothschild Company because of any negligence of defendants or of their subcontractors; and claim that the negligence of the Rothschild Company for which Baxter recovered judgment was the negligence of the Rothschild Company and not that - of defendants or their subcontractors.

These averments presented a tryable issue; for it may be made to appear upon- a trial that the unevenness and roughness of the canvas in front of the elevator may have been brought about not by the negligence of the painting contractor, but by some employee of the Rothschild Company, or that some other cause in no degree attributable to the defendants or their painting contractor may have intervened as the proximate cause of the condition which brought about the accident to Mrs. Baxter.

These matters defendants may, if they can, prove in exculpation of their alleged liability in this action. If the negligent act which resulted in the injury to Mrs. Baxter is not attributable in some way to the defendants, through their painting contractor or otherwise, then there is no right of recovery in this action against defendants. These questions are, however, for the jury under proper instructions, or for the trial judge’s determination if a trial by jury shall be waived, both parties in the first instance having demanded a jury trial.

The decision in the Baxter case, supra, is binding on defendants in this action as to all the matters in that suit adjudicated, including the fact upon which necessarily the judgment was predicated, that Elizabeth Baxter was in the exercise of due care for her safety at the time of the accident, and that she was not guilty of any negligence which contributed to the accident which befell her, as well as the correctness of the verdict as an estimate of damage suffered by Mrs. Baxter. The negligence of defendants was not a matter for determination in the Baxter suit; it therefore follows that in this suit that question is still open and must be maintained by plaintiff in the usual way before it can recover a judgment against defendants. Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co., 215 Fed. 32.

We cannot say from the record but that the judgment in the Baxter case may have rested upon the negligence of Bothschild & Company alone. Defendants in that matter are having their initial day in court in this proceeding, and it therefore becomes necessary to not only charge but prove that defendants were themselves, or someone acting for them was, guilty of the particular negligence which culminated in the accidental injury to Mrs. Baxter and the resulting judgment in compensation for her injuries.

While it is true that we held in the Baxter ease that the building was not at the time of the accident in the possession of independent contractors, because Bothschild & Company was then engaged in operating its business therein, so that the general contractor possession rule did not apply, that would not relieve the general contractor from liability under his building contract if the negligence which caused the accident to Mrs. Baxter was in law attributable to defendants. If plaintiff is entitled to recover, the judgment in the Baxter case will be evidence as to all matters necessary to a recovery in that case, although it will still be open to defendants to contest their responsibility for the negligence resulting in the injury to Mrs. Baxter.

Sherman House Hotel Co. v. Butler St. Foundry & Iron Co., 168 Ill. App. 549, is a case on fact and principle akin to the one at bar. In that case the hotel company was mulcted in damages at the suit of a pedestrian injured by the negligence of its contractor, the defendant iron company, in taking down an iron balcony which was old, rusty and full of holes and which extended about 20 feet on Randolph street and about the same distance on Clark street and was about 20 feet above the sidewalk. The hotel company paid the judgment and sued the iron company to enforce the ultimate liability of the iron company for its negligence while in the employ of the hotel company, and it was held that the judgment in the original case was not res ad judicata as to the liability of the iron company in an “action over,” notwithstanding it may have been a party to the original cause; it appearing that in the original cause the question of liability as between the defendants was not determined. Such is the condition of the record in the case at bar.

The covenant of Elizabeth Baxter, for a consideration, not to prosecute defendants in the suit against them and the Rothschild Company, while binding between the parties to the covenant, in no wise affected the liability of defendants, if any, to respond in an “action over” for damages suffered by Rothschild & Company in the Baxter suit. As between the parties to the instant case, the rights of all are the same as they would be had defendants not settled with Elizabeth Baxter.

For the errors indicated, the judgment of the Municipal Court is reversed and the cause is remanded for further proceedings in accord with the views above expressed.

Reversed and remanded.


text:
    Robert J. Goldsmith, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 24,789.
    1. Stbeet bailboads, § 133

      —when negligence of motorman and contributory negligence of pedestrian passing between cars are questions for jury. In an action by a pedestrian against a street railroad company for personal injuries sustained by being caught between two street cars which were standing on the street at the time the motorman of the rear car motioned for plaintiff to pass between them, but the latter car of which started up, due to the motorman’s coat sleeve catching on the controller, evidence held to present jury questions as to the negligence of defendant and contributory negligence of plaintiff.
    2. Stbeet bailboads—what constitutes negligence on part of motorman. The wearing by a street car motorman of a coat sleeve of such a character that it will catch on the controller and start the car and cause injury to one passing in front of the car, is an act of negligence.
    3. Stbeet bailboads, § 63*—what care required in operation of cars. A street car company is bound by the exercise of ordinary care to so operate its cars as to avoid ifljuring people.
    4. Appeal and ebbob, § 1241*—when instructions may not be complained of. A party cannot complain of instructions given for the adverse party where his own instructions are open to the same criticism.
    5. New tbial, § 107*—when verdict may not be impeached by affidavit of juror. The verdict of a jury, in an action against a street railroad company for personal injuries, may not be impeached by an affidavit of a juror containing the bald, unsupported statement that another juror stated, after the jury had retired, that the defendant had probably made an effort to settle for a specified sum with plaintiff.
    6. New trial, § 107

      —inadmissibility of affidavits of jurors to impeach verdict. Affidavits of jurors cannot be received for the purpose of showing cause for the setting aside of a verdict.
    7. New trial, § 107*—when affidavits of jurors are inadmissible to imp,each verdict. Affidavits of jurors that some of the jurors experimented on a car controller with a coat sleeve in an attempt to demonstrate the effect of such contact cannot be used to impeach a verdict in an action against a street railroad company for personal injuries, alleged to be due to the sudden starting of a car caused by the motorman’s sleeve catching on the controller.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 7, 1919.
    Charles Le Roy Brown, for appellant; John R. Guilliams and John E-. Kehoe, of counsel.
    James C. McShane, 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 Holdom

delivered the opinion of the court.

In an action for personal injuries plaintiff had judgment for $10,000 upon the verdict of a jury, and defendant comes to this court asking a reversal.

While plaintiff at about 7 o ’clock in the morning of November 8, 1915, was crossing Fifty-First street, Chicago, between Calumet and Prairie avenue, in quest of his morning paper and breakfast rolls, he was beckoned by a motorman of defendant to continue his passage across the street by going between the car operated by this motorman and a ear close to and in front of it; while so doing the car first mentioned suddenly and without warning to plaintiff started and he was caught between the bumpers of both cars and his left leg so badly crushed and maimed that it had to be amputated.

Defendant assigns and argues three propositions for reversal :

First. That its motion for a directed verdict in its favor should have been granted because plaintiff’s injuries were the result of an accident and without any negligence on the part of defendant.

Second. Error in giving instruction No. 6 proffered by plaintiff.

Third. The refusal of the court to hear oral evidence of claimed misconduct on the part of jurors in an attempt to impeach their verdict in support of defendant’s motion for a new trial.

We will discuss the foregoing in the order stated.

First. The negligence of defendant and the exercise of due care by plaintiff at and immediately preceding the time he suffered the injuries inflicted by defendant were questions of fact for the jury, and without reciting the evidence we will, rest content by saying that an examination of it demonstrates that there was an abundance of evidence preponderating favorably for plaintiff sustaining the verdict of the jury, and from which they could not find otherwise than that the defendant was guilty of the negligence charged against it which resulted in plaintiff’s injury, and that at the time of the occurrence plaintiff was in the exercise of due and ordinary care for his own safety.

• Plaintiff in attempting to cross the street was arrested in his progress by the close proximity of the two cars- between which his left leg was crushed. While plaintiff was standing still the motorman made a signal with his head to him to cross between the two cars, and on this invitation plaintiff made the attempt; while plaintiff was so doing, the motorman suddenly started the car without warning to plaintiff or any opportunity being given him to escape from the danger in which the conduct of defendant’s motorman placed him.

In the light of plaintiff’s evidence the jury undoubtedly disbelieved the motorman’s narration of the occurrence. The whole situation considered, we think they were justified in so doing. The evidence of plaintiff and his witnesses in regard to the accident is not very seriously combated by defendant, but refuge from liability is sought in the contention that the occurrence was the result of a ‘‘pure accident” in no way attributable to any negligence on the part of defendant. This “pure accident” is said to have arisen from the fact that the coat sleeve of the motorman, in some unexpected and unexplained manner, came in contact with the car controller without the knowledge or conscious volition of the motorman, and started the car despite the intention of the motorman to keep the car at a standstill while plaintiff passed on his way.

We are unable to say that the jury were not fairly warranted in attributing to a negligent act of the motorman the catching of his coat sleeve in the car controller in such a way as to start the car. It stands to reason that the motorman’s coat sleeve was as much within his control as any of the appliances by means of which he operated and controlled the movement of the car. He must be held to have known, • or by the exercise of reasonable diligence he could have known, that to wear a coat with a sleeve in such a condition that it would start the car controller was an act of negligence for which the defendant is liable for the injuries resulting to plaintiff from such negligent act. To otherwise hold would be to exculpate the defendant from liability for its own negligent conduct, over which the plaintiff had no control, and leave the innocent victim to bear his injuries without compensation. The law would not tolerate such an apparent injustice, and we are unable to find any case cited by defendant’s counsel where appliances within the control of a party and improperly used by the person in control of them, such improper use resulting in damage to an innocent party, in which liability therefor was escaped by attributing the occurrence to a “pure accident.”

The exercise of due care on the part of the motorman in managing his coat sleeve would have prevented the accident in question. It is idle to say, from the facts in this case regarding the motorman’s coat sleeve, that the accident resulting can be considered as inevitable or unavoidable. There was no combination of extraordinary circumstances, not to be foreseen, which resulted in starting the car by the motorman’s coat sleeve coming into contact with the car controller. The situation was one readily controllable by the motorman in the exercise of ordinary care, and his failure so to do was negligence for which the law makes defendant liable to respond in damages to the party injured as the result thereof. The court said in Tracy v. Boston & N. St. Ry. Co., 204 Mass. 13:

“The jury were not bound to accept the explanation offered by the defendant, which was that' the accident was caused by the blowing out of a fuse. Further, they may have thought, and if they did we cannot say that they were wrong, that, if the accident was caused by the blowing out of a fuse, it was negligence on the part of the defendant to use fuses that in blowing out were liable to produce results like those testified to.”

By parity of reasoning in this case, it was negligence for defendant’s motorman to so manipulate the sleeve of his coat that it came into contact with the car controller and started the car, resulting in injury to plaintiff.

Second. We think instruction No. 6, when read with all the other instructions given, including those of defendant, was not'calculated to mislead the jury, and that as the declaration charged negligence generally, it was broad enough to include any act of negligence in the running, management or operation of the car. Chicago City Ry. Co. v. Barker, 209 Ill. 321.

It is the law that defendant is bound by the exercise of ordinary care to operate its cars to avoid injuring people. Kindred expressions were used in instructions given at the instance of defendant. Its instruction No. 17 has in it the following words: The defendant’s servants “were not required to exercise the highest degree of care to avoid injury to the plaintiff. ’ ’ Defendant’s instructions numbers lá and 16 contained similar references, so that were instruction 6 susceptible to the objections now raised, the law would not heed such objections, as instructions given at the instance of defendant are subject to the same or like criticism. Consolidated Coal Co. of St. Louis v. Haenni, 146 Ill. 614.- The instructions considered as a whole correctly state the law applicable to the facts in evidence.

Third. The charges against certain jurors, without naming them, set forth in an affidavit by one of the trial counsel, were altogether too indefinite to justify an investigation of the jurors’ conduct by the court. One juror was called to the witness stand and examined; he testified that after the jury had retired into the room to deliberate upon their verdict, a statement was made by some juror that the street car company had probably made an effort to settle with the plaintiff, $5,000 or $6,000 being mentioned as the sum. The testifying juror did not remember by whom the statement was made except that it was made by one of the jurors and that at that time there was no one else in the jury room but the jurors. The statement was a bald assumption, so far as the record discloses, without any foundation of fact upon which to base it. This testimony was clearly inadmissible to impeach the verdict. The rule stated in Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385, is still the rule in this jurisdiction regarding impeachment of the verdict of a jury. In that case the court said:

“This court, in an unbroken line of decisions from the case of Forester v. Guard, Siddell & Co., Breese, 74, is committed to the doctrine that the affidavits of jurors cannot be received for the purpose of showing cause for setting aside the verdict. There may be dicta in some of the cases intimating a contrary rule, but in every case where the question has been before the court, and determined, the principle has been adhered to.”

Defendant claims, and offered to put three jurors upon the witness stand to so testify, that some of the jurors experimented on a car controller with a coat sleeve in an attempt to demonstrate the effect of such contact. This offer was upon objection refused. This ruling of the court was in consonance with the decisions in this State on that subject. It was held in Heldmaier v. Rehor, 188 Ill. 458, that the affidavits of jurors that during the trial they examined the wagon involved in the accident, were not admissible to impeach, their verdict; so in Wyckoff v. Chicago City Ry. Co., 234 Ill. 613, it was held that an affidavit to the effect that a juror told the affiant that he had visited the scene of the accident during the trial and that he formed his opinion in the case upon what he there learned, was insufficient to impeach the verdict.

In City of Chicago v. Saldman, 129 Ill. App. 282, this court held that the trial judge properly excluded an affidavit by a juror stating in effect that another juror had told him during the deliberation of the jury that he had consulted a physician during the trial upon the question as to whether a certain physical condition could result from a certain physical canse, and had communicated to. the jury what the physician had said about it. On further appeal the judgment of this court was affirmed in 225 Ill. 625.

The court’s ruling on the several matters proffered in an attempt to impeach the verdict of the jury was without error. Peterson v. Chicago & O. P. El. R. Co., 176 Ill. App. 218.

There is no reversible error in this record, and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Florence R. Peck, Appellee, v. Robert B. Peck et al., on appeal of Robert B. Peck, Appellant.
    Gen. No. 24,968.
    1. Injunction, § 162

      —what not excuse for failure to give notice of application for. Pear that a brother of the husband, who was made defendant hy a supplemental bill in a proceeding against the husband for separate maintenance, might turn over to the husband personal property in his possession belonging to the husband, and thereby in some way prejudice the rights of complainant, was insufficient to excuse noncompliance with the statutory requirement for notice of an application for an injunction, and an in junctional order issued without notice to either the brother or husband will be reversed.
    2. Equity, § 266*—when filing of supplemental bill bringing in party vacates default order and necessitates rule to answer. Where an order defaulting a husband for want of a pleading in a proceeding for separate maintenance preceded the filing of a supplemental bill bringing in a brother of the husband as a party, such filing operated automatically to vacate the default order and required a rule upon the husband, who had been summoned, to answer the bill as amended by the supplemental bill.
    3. Injunction, § 332*—when bond necessary. An injunction against a brother of the husband, in a proceeding for separate maintenance, was improperly issued without exacting a bond, when no reason for waiving the requirement of the statute for a bond is given in the order or in the supplemental bill making the brother a party, or in any supporting affidavit.
    4. Injunction, § 50*—what is not ground for without notice to » restrain one holding property of husband from disposition thereof. That the husband, defendant in a proceeding for separate maintenance, is a drunkard and liable to dissipate and lose his property is not a ground for an injunction without notice or bond against his brother, who is made a party on the ground that he holds property belonging to the brother, especially when it does not appear in the pleadings that the husband is not supporting his wife and children or that he has threatened to reduce the amount of support or to discontinue it.

      6. Injunction, § BO

      —when does not lie to prevent dissipation of property of drunkard. That a husband In a proceeding for separate maintenance is a drunkard and liable to dissipate his property is not a ground for the issuance of an injunction without notice or bond, as the statute furnishes a suitable and convenient remedy by the appointment of a conservator on application to the Probate Court with notice to the supposed drunkard.
    6. Divobce, § 128*—what is limit of power of court as to property of husband to secure payment of alimony. The limit of the power of the court as to the property of a husband to secure the payment of alimony is to make the alimony a lien upon his real property, and an in junctional order which attempts to control the disposal of his personal property is too far reaching in its scope.
    Appeal from the Circuit Court of Cook county; the Hon. David M. Bbothebs, Judge, presiding. Heard in this court at the October term, 1918.
    Injunctional order reversed.
    Opinion filed April 7, 1919.
    King, Brower & Hurlbut, for appellant.
    Alden, Latham & Young, 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 Holdom

delivered the opinion of the court.

This is a proceeding for separate maintenance by the wife against the husband, in which by a supplemental bill David B. Peck, a brother of the husband, was made a party defendant on the theory that he had personal property of great value belonging to the husband which he might deliver to the husband, who, in some manner undisclosed but feared, might get rid of it, which it is claimed would deprive the husband of means with which he ought to support his wife and children. A temporary injunction was granted upon the supplemental bill without notice to either the husband or his brother David, the new defendant. Prom that order the husband prosecutes this interlocutory appeal.

The temporary injunction against the husband granted on the original bill without notice and without bond was by this court reversed in an opinion not yet reported but filed February 3, 1919, in case general number 24,927. The opinion in that case states with precision the facts under which complainant seeks from her husband a separate maintenance and also the law controlling the granting of an injunction in this class of cases without notice.

The injunctional order in that case appealed from was reversed because the same was granted without notice to the husband or without showing the existence of any facts which would bring the case within the exception of the statute requiring notice before the granting of an injunction. In the case now being considered, no notice was given to either the defendant husband or his brother David, made a party defendant by the supplemental bill.

The reasons stated in case number 24,927, supra, for reversal of the injunctional order are equally potent in impelling us to reverse the injunctional order in the case at bar against David B. Peck. However, it is sought to distinguish the case made by the supplemental bill from that made by the original bill, in which we reversed the injunctional order, because, it is said, the supplemental bill contained an averment predicated on the fear that David might deliver the property to his brother Robert, the owner, or some one for him, and that thereby complainant’s rights would be unduly prejudiced unless the injunction prayed issued without notice to the new defendant, David B. Peck.

We are unable to perceive how complainant could be injured by the delivery to the husband by the brother of property which the husband owned. This in no way excused noncompliance with the requirement of the statute that notice of the application for an injunction must be given before one is granted. Furthermore, complainant proceeded upon wrong premises. On the day the supplemental bill was filed the defendant husband was defaulted for want of a pleading to the original bill. This order preceded, in the sequence of events chronicled in the record, the filing of the supplemental bill, which filing operated to automatically vacate the default order and required a rule upon the defendant husband, who had been summoned, to answer the bill as amended by the supplemental bill. Gibson v. Rees, 50 Ill. 383; Lyndon v. Lyndon, 69 Ill. 43; Ruppe v. Glos, 251 Ill. 80.

Again, the injunction was granted without" bond and no reason for waiving the requirement of the statute that a bond should be exacted is found in the order, nor does any reason for dispensing with a bond appear in the supplemental bill or by any affidavit supporting the same.

It is again urged as reason for affirming the injunetional order, that the defendant husband is a drunkard and likely to dissipate and lose his property. Our answer to such contention is that an injunction without notice or bond is not a remedy known to law for such an evil. However, the statute furnishes a suitable and convenient remedy by the appointment of a conservator on application to the Probate Court on notice to the supposed drunkard, in which proceeding, if a conservator is appointed, the supposed drunkard’s property rights would be conserved by the court requiring a conservator’s bond. Moreover, nowhere in the pleadings does it appear that the defendant husband is not supporting his wife and children in accord with his means and their necessities; nor is there any averment that he has threatened either to reduce the amount of support or to discontinue it. In this condition of the record an injunction was not proper.

There is another serious infirmity in the injunctional order. It is too far reaching in its scope as a temporary order; the law does not permit of so sweeping an injunction, either temporary or permanent. It is the law in this State that a husband cannot be enjoined at the suit of his wife from selling or disposing of his personal property except in the ordinary course of business to insure the payment of alimony allowed the wife. Errissman v. Errissman, 25 Ill. 136. The limit of the power of the court to secure payment of alimony is to make the .alimony decree a lien upon the real property of the husband. The rule is well stated in Griswold v. Griswold, 111 Ill. App. 269, thus:

“A court of equity has no power to make a decree for alimony a lien on personal property. Yelton v. Handley, 28 Ill. App. 640. It is also of doubtful propriety for a court of equity to permanently enjoin a husband from selling or disposing of his property. Errissman v. Errissman, 25 Ill. 136. It cannot be presumed that the appellant will pauperize himself to avoid the payment of a reasonable alimony to his wife, and we think the legitimate powers oí a court of equity are amply sufficient to protect her.”

There does not appear from anything in this record any lawful reason justifying the injunction order of December 11, 1918, appealed from; and that order is therefore reversed.

Injunctional order reversed.