text:
    Lola Ryan, Guardian, Appellee, v. Oscar G. Foreman et al., Appellants.
    Gen. No. 19,030.
    1. Adoption—inheritance. For all purposes of inheritance an adopted child is the lawful child of the adopting parent, except as otherwise provided by the statute.
    2. Adoption—under section 5 of the adoption act. While an adopted child, under section 5 of the adoption act, may inherit from its adopting parent, it is not thereby given the right to inherit from any one except the adopting parent.
    3. Pensions—rights of children. The right of a surviving child to a pension under the Police Pension Act does not depend upon the right of inheritance.
    4. Pensions—not a vested right. A pension is not a matter of contract or vested right, but is a mere “bounty springing from the graciousness and appreciation of sovereignty.”

      5. Adoption—rights of natural parents. By section 8 of the adoption act, the natural parents of an adopted child are deprived by the decree of adoption of all legal rights as respects the child, and the child is freed from all legal obligations to his natural parents.
    6. Adoption—effect as to child and parent. The adopting parents, from the date of the adoption, are legally bound to support and maintain the child so adopted, and the child thenceforth owes to them the duties which would otherwise be due to its natural parents.
    7. Pensions—when adopted child is entitled to. On a petition for a writ of mandamus commanding defendants, the Board of Trustees of the Police Pension Fund to place the name of complainant upon the pension fund roll as guardian of a minor, an adopted child of a deceased member of the police force who was in continuous service for over 23 years, it is held that an adopted child under 16 years is such a “child” as is entitled to a continuance of the pension under the provisions of the Police Pension Fund Act.
    8. Pensions—construction of pension acts. It is the duty of the courts to construe pension acts so as to give full effect to the legislative intent as indicated by the language employed and the objects sought to be accomplished thereby.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 29, 1913.
    William: H. Sexton, for appellants; John W. Beck-with and Max M. Korshak, of counsel.
    Farlin H. Ball, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from an order of the Superior Court directing the issuance of a writ of mandamus, commanding appellants, who constitute the Board of Trustees of the Police Pension Fund of the city of Chicago, to place the name of appellee, as guardian of Bernice Gibbons, a minor, upon the police pension fund rolls of the city of Chicago, in order that she may receive “all pension moneys due her as such guardian under the terms and provisions of the police pension fund act as amended.” To the petition for mandamus, appellants filed a general demurrer, which was overruled. They elected to stand by their demurrer and the order above stated was thereupon entered.

The petition states that in June, 1903, William Gibbons, a policeman, and his wife, Mary Gibbons, legally adopted as their own child Bernice Gibbons, who was then two years of age, and whose deceased mother was their daughter; that on August 2, 1911, William Gibbons died, after a continuous service in the police department of the city of Chicago, of over twenty-three years; that he left him surviving his widow, Mary Gibbons, and his adopted child, Bernice Gibbons, then about ten years of age; that pursuant to the provisions of the Police Pension Act, as amended, appellants, as trustees of the police pension fund, paid to the widow ■a pension at the rate of $600 a year up to the date of her death, which occurred on January 16, 1912; that after her death, appellee, as guardian of the adopted child, made a demand upon appellants to have the pension continued in her favor until she should arrive at the age of sixteen years, but appellants refused to comply with the demand, upon the ground that the pension act, as amended, does not authorize nor permit them to make any payment to an adopted child of a deceased pensioner.

Section 3 of the Police Pension Fund Act, as amended in 1911 (Hurd’s Stat. 1912, chap. 24, p. 371), provides that whenever any person shall have served for a period of twenty years or more upon the regularly constituted police force of any city in this state having a population of 50,000 inhabitants or more, a yearly pension, equal to one-half the amount of his- salary, but not less than $600 nor more than $900, shall be paid to bim after his service on the police force shall have ceased, and that “after the decease of such member, his widow or minor child or children under sixteen years of age, if any survive him, shall be entitled to the pension provided for in this act, of such a deceased husband or father. ’ ’ By section 6 of the same act it is provided, that whenever any policeman shall die after ten years ’ service and while still in the service of such city as a policeman, “leaving a widow or child or children under the age of sixteen years, then upon satisfactory proof of such facts made to it, said board shall order and direct that a pension of one-half the salary, not exceeding the sum of $900, shall be paid to such widow, or if there be no widow, then to such child or children until they shall be sixteen years of age.” By section 1 of said act, a police pension fund for every such city is created by setting apart for that purpose a certain portion of all moneys received from certain fines and licenses, and also “one and one-half per cent, per month, which shall be paid by or deducted from the salary of each and every policeman of such city.”

The question presented by the demurrer to the petition is, therefore, whether an adopted child, under sixteen years of age, of a policeman who, at the date of his death, is entitled to a pension under said act, is such a “child” of the pensioner as is entitled to a continuance of the pension under the provisions of that act. It is admitted by counsel that there is no case in this state which directly decides this question, and our own research has been unable to find any adjudicated case in this state directly in point.

Section 5 of chapter 4 of the Revised Statutes, relating to the adoption of children, provides that an adopted child “shall be deemed, for the purposes of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as" if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation. ’ ’ In Flannigan v. Howard, 200 Ill. 396, one effect of this section, viz: its effect as to the inheritance of property from the adopting parents, was discussed by the Supreme Court of this state. It was there held that ‘ ‘ so far as inheritance is concerned, the adopted child is to be deemed the child of the testator, precisely the same as though born to the testator, ’ ’ and that when the rights of adopted children are involved, the statute of descent must be construed in connection with this section of the adoption act. The court further said: " Our statute is copied from the Massachusetts act, and under that act it was held that, so far as the right of inheritance is concerned, an adopted child must be regarded in the light of a child born to the adopting parent. (Sewall v. Roberts, 115 Mass. 262.) An adopted child becomes the lawful child of the adopting parent for all purposes of inheritance, and is in the eyes of the law as much the child of such parent as though it had been his own child. (Keegan v. Geraghty, 101 Ill. 26; Sayles v. Christie, 187 Ill. 420.) The authorities are generally to the effect that for all purposes of inheritance an adopted child is the lawful child of the adopting parent, except as otherwise provided by the statute. ’ ’

It is, however, urged that while an adopted child, under section 5 of the adoption act, may inherit from its adopting parent, it is not thereby given the right to inherit from any one except the adopting parent, and the case of Keegan v. Geraghty, supra, is cited in that connection. Such is undoubtedly the law in this state. But appellee is not seeking to recover money or property inherited from any one. The right of a surviving child to a pension under the Police Pension Act does not depend upon the right of inheritance. A widow is not an heir, and yet she is entitled to a pension under the act. A pension is not a matter of contract or vested right, but is a mere “bounty springing from the graciousness and appreciation of sovereignty.” Eddy v. Morgan, 216 Ill. 437. Nor are the rights of an adopted child limited merely to the right of inheritance from the adopting parent. The section of the adoption act above quoted not only gives to an adopted child the right of inheritance from the adopting parent, but also confers upon the adopted child all “other legal consequences and incidents of the natural relation of parents and children,” with certain specific exceptions which are not here involved. One of the legal consequences and incidents of the natural relation of parents and children is that the parents are legally bound for the support, maintenance and education of the children so long as they are of tender years and unable to provide for themselves. Plaster v. Plaster, 47 Ill. 290, 291. By section 8 of the adoption act, the natural parents of an adopted child are deprived, by the decree of adoption, of all legal rights, as respects the child, and the child is freed from all legal obligations to his natural parents. This leaves the adopted child entirely dependent upon the parents by adoption for means of support and education. The adopting parents, from the date of the adoption, are legally bound to support and maintain the child so adopted, and the child thenceforth owes to them the duties which would otherwise be due to its natural parents. There is thus a complete severance of the natural relation of parent and child, and a substitution therefor of a legal relation which is declared to be the same as the natural relation in all its legal incidents and consequences, except only the right to take property expressly limited to bodily heirs and to inherit property from the adopting parents ’ kindred by right of representation. At the time the Police Pension Act was passed, the act concerning the adoption of children had been the law of this state for many years, and it must be presumed that the legislature knew that fact and used the words “child” and “children” in the pension act in the same sense as those words are used in the adoption act. By the provisions of the pension act, a certain part of the salary of every policeman is deducted every month during his service to make up in part the fund set apart for the purpose of paying pensions to the widow and children of deceased policemen who have served the required number of years. If this portion of the salary of William Gibbons had been invested in property, there can be no doubt that his adopted child would have had the right to inherit such property. Or if the same portion of his salary had been deposited in a savings bank to his credit, or paid as premiums upon a life insurance policy, the adopted child would clearly have been entitled to share therein as fully as any natural child. It would seem to be most improbable that the legislature intended by the pension act to take away from an adopted child the rights which it had previously given to such child by the adoption act. A more reasonable view, in our opinion, is that the legislature intended the words “child” and “children” to apply to any child in fact or in law under sixteen years of age, whom the policeman entitled to a pension was legally bound to maintain and support as his child.

While no cases directly in point on this question have been cited, we are not wholly without authority in support of this view of the matter. A case which seems to us to be analagous in principle is that of Kemp v. New York Produce Exchange, 34 App. Div. (N. Y.) 175. In that case the Produce Exchange, in pursuance of a statutory authority, raised, by assessment upon its members, a gratuity fund which, under the statute, was required to be paid, upon the death of any member, “to his widow, children or next of kin or other persons dependent upon him,” in such manner as the by-laws of the exchange might prescribe. The by-laws provided that upon the death of a member leaving a widow, but no children, the whole sum should be paid to the widow; if there was a widow and also children, one-half should be paid to the widow and the other half to the children; and if there were children and no widow, then the whole sum should he paid “to the children for their use, share and share alike.” Henry Kemp, one of the members of the Exchange, died leaving an adopted child, and a question arose precisely like the one here involved. The court said:

“The controversy is as to whether, under the terms of the by-laws, the plaintiff, as such adopted child, is entitled to the fund payable on the death of Henry Kemp. The defendant is right in its contention that the plaintiff cannot claim through Henry Kemp by succession, but directly of the defendant, under its by-laws, and that the question is the proper construction of those by-laws. * * * The question is not, what is the strict, accurate meaning of the word 1 child, ’ but, in what sense was it used in the by-laws ? Already, at the time of the passage of the act empowering the defendant to create its gratuity fund, and of the enactment of the defendant’s by-laws in pursuance of such authority, adoption of children was authorized by the laws of this state. By chapter 830, section 10 of the laws of 1873, it was enacted that a child adopted under the provisions of that act, and the person adopting him, should thenceforth 1 sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, excepting the right of inheritance. ’ * * * The by-laws state that the object of the gratuity fund is to provide for the families of members. As the law stood at this time, an adopted child was a member of the family of his adopter, and a dependent. Though he was not entitled to inherit from the adopting parent, still such parent could, in a proper case, be compelled to support the child, the same as a natural child. It seems to us that, even.under the then existing condition of the law, the case of an adopted child fell within the terms of the by-laws, and it was entitled to share in the death fund. In 1887, however, the statute as to adoption was amended so as to give the adopted child the right of inheritance. * * * From this time the adopted child had the same rights as a natural child, except as to limitations in deeds or wills conditioned on the death of the adopting parent without issue.”

While the Police Pension Act of this state does not in express terms state that the object of the pension payable to the widow or children is “to provide for the families” of deceased pensioners, we think that object is clearly implied from the provisions in favor of the widow and children of policemen who are entitled to a pension under the act.

In Von Beck v. Thomsen, 44 App. Div. (N. Y.) 373, affirmed 167 N. Y. 601, it was held that an adopted child was entitled to share, to the same extent as natural children, in the proceeds of certain life insurance policies issued to the adopting father, and payable to his wife if she survived him, or if not, to her children. This decision was placed upon the ground that the insurance companies had agreed to pay the amount of the policies to the persons “who occupied the relation of children” to the wife of the insured at the time of his death, and that the adopted child occupiéd that relation by virtue of the adoption laws of the state of New York. The clause of the adoption laws of New York quoted in the opinion is the same clause quoted in Kemp v. New York Produce Exchange, supra.

In Virgin v. Marwick, 97 Me. 578, an insurance policy was issued payable to the executors of Marwick “for the benefit of his widow, if any, otherwise for the benefit of his then surviving children.” After the policy was issued, Marwick and his wife adopted a child, and the decree of adoption provided that “from and after the date hereof the said child shall be to all legal intents and purposes the child of said petitioners.” The statutes then in force in Maine did not give to an adopted child the right of inheritance, but it was nevertheless held that the adopted child was entitled to the proceeds of the .insurance policy, upon the ground that the adopted child “must be regarded as the child of Captain Marwick, not by birth, but by law.”

In Sewall v. Roberts, 115 Mass. 262, the court had before it the construction of the terms of a voluntary settlement made by the father of a child by adoption, which provided for an annuity to the settler during his life, and that upon his death the principal should be paid to his executors for the benefit of his children. The adoption act then in force in Massachusetts contained the identical words of section 5 of the Illinois Adoption Act, above quoted. After quoting that section of the statute, the court said (p. 276): “This language is very broad and comprehensive, and it was manifestly the intention of the legislature to provide that, with the exceptions named, the adopted child should, in the words of the sixth section, ‘to all legal intents and purposes be the child of the petitioner.’ The adopted child in this case, therefore, in construing her father’s settlement, must be regarded in the light of a child born in lawful wedlock, unless the property disposed of by the settlement falls within one of the exceptions. It is true that if she takes under the settlement, the property does not come to her by inheritance, but it comes to her as one of the legal consequences and incidents of the natural relation of parents and children.” Then, after pointing out that the property there in question did not fall within the statutory exceptions, the court held that the adopted child was entitled to the whole of the principal fund, precisely as though the child had been the natural child of the adopting parent.

In Sayles v. Christie, 187 Ill. 420, Frederick H. Mather, by his will, gave the possession, control and use of all his real estate to his wife for life, and after her death to his adopted daughter for a certain time. After his death, his widow renounced her rights under the will, and then attempted to elect, under section 12 of the Dower Act, to take in lieu of dower, one-half of all the real and personal estate of her deceased husband remaining after the payment of Ms debts. She claimed the right to do this on the theory that the special act of the legislature purporting to confer upon the adopted daughter all the rights of a natural child and to make her the “heir-at-law” of the testator and his wife, was invalid, “and that therefore, Frederick H. Mather left no child.” As to this contention, the court said (p. 434): “The theory thus insisted upon cannot be sustained, for the reason that the adoption of Minnie Christie by the legislative act in question was valid, and, therefore, Frederick H. Mather, when he died, left a child, so that section 12 of the Dower Act has no application to this case. The language of that section is: Hf a husband or wife die testate leaving no child or descendants of a child,’ etc. (Hurd’s Rev. Stat. 1897, p. 635). Mere, the adopted child, Minnie Christie, was, in the eye of the law, as much the child of Frederick M. Mather, as though she had been his natural child. Consequently, the renunciation amounted to nothing, and did not vest Mrs. Mather with a half interest in the property.”

It is contended that the pension act must be strictly construed, and the case of Eddy v. Morgan, 216 Ill. 437, is cited as announcing a rule to that effect. We find nothing in the opinion of the court in that case which warrants the contention. The court there merely declined to extend the recogmzed rules of statutory construction so as to give the act retrospective operation, in the absence of anything in the act itself to indicate that such was the legislative intention. In one part of the opinion (p. 449) the case of Walton v. Cotton, 19 How. (U. S.) 355, is cited as authority for the statement that a pension is “a mere matter of largess or bounty,” and not “a matter of contract or vested right.” In that case, certain acts of Congress granting pensions to revolutionary soldiers or in case of their death, leaving children surviving, then to such children, were construed by the court to include grandchildren as well as children. The court there said (p. 358): “There can be no doubt that Congress had a right to distribute this bounty at their pleasure, and to declare it should not be liable to the debts of the beneficiaries. But they will be presumed to have acted under the ordinary influences which lead to an equitable and not a capricious result. And where the language used may be so construed as to carry out a benign policy, within the reasonable intent of Congress, it should be done.” These cases are far from holding that pension acts of this sort must be strictly construed, but on the contrary, they hold that it is the duty of the courts to construe them so as to give full effect to the legislative intent as indicated by the language employed and the objects sought to be accomplished thereby.

We conclude, therefore, both upon reason and authority, that appellee, as the guardian of Bernice Gibbons, the adopted child of William Gibbons, deceased,” is entitled to receive for the benefit of such child, until the latter arrives at the age of sixteen years, the same pension as if said child were born to William Gibbons and his wife. As to the claim that this construction of the act may open the door to fraud on the part of police officers, it is sufficient to say that it will be time enough to consider what effect a fraud such as is suggested by appellants ’ counsel may have, when a case of that kind is presented. No such case is presented by this record.

The demurrer to the petition was properly overruled, and the order of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Clara Phebus, Plaintiff in Error, v. Henry H. Mather, Defendant in Error.
    Gen. No. 17,462.
    1. Physicians and surgeons—liability for malpractice. In an action to recover damages for alleged malpractice in the treatment of an eye, it is incumbent on plaintiff to prove that the treatment administered by defendant was negligent or unskillful, and also that the injuries claimed were the result of such treatment.
    2. Physicians and surgeons—evidence of malpractice. In an action to recover damages for alleged malpractice in the treatment of an eye, proof that a good result was not obtained is, of itself, no proof or evidence of negligence or lack of skill, but there must be affirmative proof of such negligence or lack of skill and that the injuries complained of resulted therefrom and such proof can only be established by the testimony of experts skilled in the medical profession.
    3. Physicians and surgeons—-malpractice. In an action to recover damages for alleged malpractice in the treatment of plaintiff’s eye, where the evidence shows that defendant after treating the eye a few times advised plaintiff to go to an eye infirmary where it was necessary to remove the eye on account of gonorrhoeal infection and there is no evidence to show negligence in the treatment by defendant, it Is proper to direct a verdict of not guilty.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    John C. King and James D. Power, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendant in error; Edward W. Rawlins, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action to recover damages for alleged malpractice in the treatment of the eye. The case was tried by a jury, which returned a verdict of not guilty. Certain assignments of error are made by the plaintiff in error, and cross-errors are assigned by the defendant in error, which we shall not discuss as we are of the opinion that there was no competent evidence tending to support the declaration, and that the jury should have been instructed to find for the defendant, as was requested by defendant’s counsel.

To support the allegations of her declaration the plaintiff testified that the first time the defendant treated her for eye trouble was August 16, 1903; that for three or four days prior to that time her right eye had been a little inflamed, which condition was attributed by her to a cold; that on the evening of August 15th, while riding on a street car, she got a cinder or something in her left eye; that the next morning she went to the defendant’s office, her eye having been very painful during’ the night, and told him that she thought it had a cinder in it; that he put some medicine in her eye; that it continued to get worse rapidly, seeming to get worse every hour, and that on the afternoon of the same day the doctor called at her house to see her baby, and while there he again looked at her eye, wiped it out with cotton, put some medicine in it and bandaged it up; that the eye continued to get worse, and that on the following day the doctor called again; that he took a wooden toothpick and scraped around the eye, and the blood ran out, and he put some more medicine in it; that two days later she again went to the doctor’s office, and he told her she must go to the Illinois Eye and Ear Infirmary; that on the occasion of the use of the toothpick the mother of the plaintiff said, “Now, doctor, if you don’t think you can cure the eye, I will send her to a specialist,” to which the defendant replied that it was nothing serious and that be knew' his business; that every "day after August 17 th pus came from her eye; that on Saturday of that week she went to the infirmary, where she remained about two weeks; that the swelling went down and the pus stopped running, but the eye remained blind and about two years later was removed by Dr. Snydacker. This testimony of the plaintiff is corroborated substantially by the testimony of her mother.

The only medical testimony introduced by the plaintiff was that of Dr. Snydacker, who testified that he had removed plaintiff’s eye, that it was blind, and that the other eye was sensitive to light; and in answer to a hypothetical question based upon the assumption that the defendant had used a toothpick, the witness stated it was impossible that the toothpick could have caused the discharge of pus; that germs might be introduced into any part of the body by means of a toothpick, but that the introduction of a toothpick into the eye is never followed by a flow of pus, as in order to cause that it requires an infection of the whole mucous membrane,

The defendant testified that the first time he saw plaintiff’s eye was on Sunday afternoon, when he called at her house to see her baby; that he found the right eye somewhat inflamed and the left one full of pus or white matter; that he advised her to go to the hospital for treatment, and upon her replying that she could not go that day, and could not afford to go as she had no money, he told her that the state provided a hospital for just such cases, where she could get attention free, and wrote the name and address of the hospital on one of his cards and gave it to her; that at that time it was apparent that she was suffering from purulent ophthalmia, caused by a gonorrhoea infection; that he told her what was the matter with the eye, but did not tell her the cause, as he did not wish to inform her that he suspected the infection was from her husband; that the next morning he again saw the plaintiff and found the eye covered with a thick, white pus, which he brushed off with cotton, and again advised her to go to a hospital for treatment; that he did not put a toothpick in her eye, or use one in any way; that that was the last time he saw her, and had never heard of her again until he saw in the newspaper that he was sued.

Dr. Wilder, who was a surgeon at the hospital and who treated the plaintiff’s eye at that infirmary, stated that she was suffering from purulent ophthalmia, due to an infection of gonorrhoea, and that it was so severe that the white portion of the eye had become infected, both eyes being affected, but the infection of the left being the more severe; that they succeeded in checking the inflammation in the right eye, but the inflammation in the left one continued with such severity that the greater portion of the eye was destroyed by it; that gonorrhoea infection of this sort takes about three days to develop. He further said that he would not like to prognosticate that if they had had the case earlier the left eye could have been saved; that they did the best they could; that if they had had the case earlier there would have been a better chance, but he did not know whether he would have been able to save the eye.

It also appeared from the evidence that the husband of the plaintiff at this time was suffering from gonorrhoea.

The law seems to be well settled that in order for the plaintiff to recover in a case of this character it is incumbent upon him to prove that the treatment administered by the defendant was negligent or unskilful, and also that the injuries claimed were the result of such treatment. The general rule also is that mere proof that a good result was not obtained is, of itself, no proof or evidence of negligence or lack of skill, but there must be affirmative proof of such negligence or lack of skill, and that the injuries complained of resulted therefrom, and that usually, and especially in eye cases, such proof can only be established by the testimony of experts skilled in the medical profession, and cannot be made by lay witnesses. Sims v. Parker, 41 Ill. App. 284; McKee v. Allen, 94 Ill. App. 147; Pettigrew v. Lewis, 46 Kan. 78; Ewing v. Goode, 78 Fed. Rep. 442; Goodman v. Bigler, 133 Ill. App. 301; Wurdemann v. Barnes, 92 Wis. 206; Martin v. Courtney, 87 Minn. 197; Staloch v. Holm, 100 Minn. 276; Kruger v. McCaughey, 149 Ill. App. 440; Fisher v. Niccolls, 2 Ill. App. 484.

In Moline v. Christie, 180 Ill. App. 334, recently decided by another branch of this court, this rule is reaffirmed, and Mr. Justice Smith has, in the opinion of that court, not only cited the above cases but made copious quotations therefrom. We therefore do not deem it necessary to repeat these quotations, especially as the attorney for the plaintiff in the last mentioned case is also the attorney for the plaintiff in the case before us.

Counsel for plaintiff in his oral argument concedes that there is no evidence tending to show that the condition of plaintiff’s eye was caused by the use of the toothpick—even upon the assumption that the plaintiff’s story in that respect is true—but it is claimed that the doctor was negligent in not advising plaintiff to go at once to a hospital for treatment. It also seems to be conceded that the above statement as to the elements necessary to be proved in a case of this kind is a correct statement of the law, but it is contended that there is competent medical evidence in the statements by Dr. Wilder which should have been left to the consideration of the jury. We cannot assent to this contention. Dr. Wilder clearly stated that he would not prognosticate as to what the outcome would have been had the case earlier come under his care. The most he would say was that he thought there would have been a better chance, but he did not know whether or not the .eye could have been saved. To permit a jury of laymen to speculate as to what result this “better chance” might have produced is clearly improper, especially in view of the expert physician’s statement that he had no opinion on that subject.

After examination of the entire record, we do not find a single word of competent testimony tending to show either negligence in treatment by the defendant, or that the injury complained of was the result of such negligence.

The conclusion we have reached disposes of all other questions raised, and as the jury has returned a verdict of not guilty, which was the only verdict it should have returned, the judgment will be affirmed.

Affirmed.


text:
    Peter Decowski, Defendant in Error, v. Albert F. Grabarski and Frank J. Tomczak, Plaintiffs in Error.
    Gen. No. 18,120.
    1. Negotiable instruments—effect of use of word “we” in note. The use of the word “we” in a note- which provides that “two years after date for value received we promise to pay,” etc., indicates nothing as to whether the note was intended to be the individual obligation of the makers or the obligation of the corporation of which they are officers.
    2. Negotiable instruments—liability of officers of corporation. A prima facie case is made against the makers of a note individually by the introduction of the note, though it is signed by them as president and secretary.
    3. Negotiable instruments—when evidence outside note to prove that it was not individual debt of makers proper. In an action on a note, where the makers signed as president and as treasurer, it is proper to permit such makers to introduce evidence outside the note to prove that it was not for the individual indebtedness of the makers, but was given to plaintiff by a corporation of which the makers were president and secretary.
    4. Negotiable instruments—when no recovery against makers individually. There can be no recovery against the makers of a note individually if such makers signed as president and secretary and the note was given for a loan by a corporation of which the makers were president and secretary.

      Error to the Municipal Court of Chicago, the Hon. Feed L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 29, 1913.
    Statement by the Court. Plaintiffs in error, hereinafter called defendants, are seeking in this court a reversal of a judgment obtained against them by Peter Decowski, hereinafter called plaintiff, on a cognovit under a power of attorney contained in a promissory note.
    Defendants entered an appearance and filed an affidavit, whereupon leave was given to make a defense, the judgment to stand as security and the affidavit to stand as an affidavit of merits. A trial was had by the court, which found for the plaintiff and entered final judgment, confirming the judgment rendered against the defendants by confession.
    The note in question is in part as follows:
    “$83.34. Chicago, Ill. May 1, 1910.
    Two years after date for value received we promise to pay to P. Decowski or order Eighty-three and 34/100 Dollars at our office 1112-1114 Milwaukee Ave.
    ***********
    Witness hand the day and year first above written.
    In presence of
    ALBERT F. GRABARSKI, Pres.
    F. J. TOMCZAK, Secy.
    No.............Due May 1, 1912.”
    By the affidavit of merits it was claimed, in substance, that the note was executed by the defendants as president and secretary, respectively, of a corporation called “The Bell,” and that the note was the obligation of The Bell and not of the defendants individually; that no consideration had ever been received by them, as individuals, for the execution of the note; that in 1908 The Bell assessed its stockholders, among whom was the plaintiff; that said assessment was a

      loan-by the stockholders to the corporation, and that the corporation evidenced its indebtedness to the plaintiff for the amount loaned by him to the corporation by giving him its promissory note for $83.34 due two years after date; that subsequently said corporation changed its officers, and the defendant Grabarski became its president, and the defendant Tomczak its secretary ; that thereafter, upon the maturity of the aforesaid note, the defendants, acting for the corporation as president and secretary, respectively, executed and delivered to plaintiff a new note in place of the old note, upon which new note the judgment herein was entered, but which note was not the invididual indebtedness of the defendants but was executed and delivered as the indebtedness of the corporation.
    William Reeda, for plaintiffs in error.
    David & Zillmah, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The question for our determination is whether or not the defendants, individually, are obligated by the note in question. From an examination of the record we find that the word “we” appearing in the note was inserted after its maturity, but by whom is not shown. However, we do not deem this to be important. The use of the word “we” in this connection indicates nothing as to whether the note was intended to be the obligation of the individuals or of the corporation. New Market Sav. Bank v. Gillet, 100 Ill. 254.

Examination of the decisions in the reported cases cited by respective counsel does not give definite assistance in arriving at a conclusion upon the issue before us.

It was said in Scanlan v. Keith, 102 Ill. 634 (641):

“The impossible task of reconciling the decisions on this branch of the law will not be attempted, nor would it subserve any good purpose to review any considerable number of the cases in other courts on this subject. They will be found to be as conflicting as the cases are numerous. Much of the contrariety observed in the decisions, both in the American States and in England, no doubt arises out of the equities of each case, and of an effort on the part of courts to carry out what was supposed to be the intention of the parties executing such notes or bills.”

However, it seems to be fairly settled by the decisions in this state that a party will not be permitted to show by oral testimony that his written agreement, understanding^ entered into, was not in fact to be binding upon him. And so it has been held in Hypes v. Griffin, 89 Ill. 134, and in Powers v. Briggs, 79 Ill. 493, that where the trustees of a church corporation made a note in their individual names, although they were described as trustees, parol evidence was inadmissible to show that it was the intention to make an indebtedness of the church corporation. But there is also another principle that where a party signs his name as the agent or officer of a corporation in the ordinary course of business, if it appears that it is the obligation of the corporation the officer is not personally liable, and that the facts may be shown by extrinsic evidence.

As was said in Scanlan v. Keith, supra:

“Most generally there is that on the face of the instrument itself, * * * that indicates unmistakably it is the obligation of the corporation. It is seldom any one takes such paper under the belief it is the obligation of the officers executing it on behalf of the corporation. But parol testimony is admissible to establish the facts, collateral though they may sometimes be, that will make it appear past all doubt whose obligation it is.”
To the same effect is Reed v. Fleming, 209 Ill. 390.
In McNeil v. Shober & Carqueville Lith. Co., 144 Ill. 238, it was held that where the makers of the note have signed the same, one as president and the other as treasurer, that prima facie it was the note of the individuals, but that it was proper to submit “the question of fact to the jury, whether they intended to give their individual note, or to execute a note' for and on behalf of the corporation only. ’ ’

In Thompson v. Hasselman, 131 Ill. App. 257, the court, speaking through Justice Freeman, in a case, very similar to the one before us, said:

“When an officer of a corporation deliberately intends to become personally liable jointly with his corporation on its paper, it. would scarcely occur to him, we think, to attach his official title after his signature. In such case a payee accepting the note would be likely to see to it that the personal liability was clearly indicated. To hold an officer of a corporation personally hable when the holder of the note knows or ought to know that the officer merely intended by his official signature to authenticate the obligation of the corporation is to set a trap for the unwary for which no sound reason seems to exist.”

In Keidan v. Winegar, 95 Mich. 430, the court discusses the general proposition in such apt words that we quote from the opinion at some length:

“As is so often said, it is the intent of the parties which is to be carried out .by the courts. The rule that rejects words added to the signature is an arbitrary one. Its reason is not so much that the words are not, or may not be, suggestive, but that they are but suggestive, and the instrument, as a whole, is not sufficiently complete to point to other parentage. The very suggestiveness of these added words has given rise to an irreconcilable confusion in the authorities as to the legal effect of such an instrument. Extrinsic evidence, therefore, is admissible in such case, between the immediate parties, to explain a suggestion contained on the face of the instrument, and to carry out the contract actually entered into as suggested, but not fully shown, by the note itself. The presumption that persons dealing with negotiable instruments take them on the credit of the parties whose names appear should not be absolute in favor of the immediate payee, from whom the consideration passed, who must be deemed to have known all the facts and circumstances surrounding the inception of the note, and with such knowledge accepted a note containing such a suggestion.”

Applying these general statements to the particular case before us, it may be said that while plaintiff, by the introduction of the note, made a prima facie case against the defendants individually, yet the court properly permitted the defendants to introduce evidence outside the note to prove the matters- of defense set forth in their affidavit of merits.

We think it is also clear that if the defendants were successful in establishing the facts as claimed in the affidavit of merits, there could be no recovery against them individually. Going, then, to the record, we find that both the defendants testified that they never had any personal dealings with the plaintiff, and that they did not know him except as a stockholder in The Bell; that some time during the year 1908, this company, which was engaged in a general merchandise business on Milwaukee avenue, went into a receiver’s hands, and that an arrangement was made whereby the stockholders paid into the company, as a loan to it, an assessment of $3.33 on each share of stock, for which the company gave its notes; that at this time the defendants were not officers of the company, and that the defendant Tomczak was one of the stockholders who advanced money on this basis to the company, receiving its note therefor. There is testimony from which we think it can be reasonably inferred that the plaintiff, who was at that time a stockholder, received a similar note under the same arrangement.

From the abstract of record before us it appears that at this time the plaintiff was the manager of the corporation; that subsequently the defendant Grabarski was elected president, and the defendant Tomczak secretary of The Bell; that thereafter many persons holding notes of the corporation had the notes renewed when they matured, and that this was done by the new president and secretary, the defendants, signing such renewal notes.

The bookkeeper testified that this particular note in question was given to renew an old note of The Bell company which fell due on May 1,1910.

Without narrating the testimony- more in detail, we have reached the conclusion, from a study of the entire record, that the averments contained in the affidavit of merits were substantially proven. It is a proper subject of comment that the plaintiff did not attempt to contradict any of the testimony offered by the defendants, although it is reasonable to presume that the plaintiff was fully acquainted with all the facts in connection with the execution of the note, and that if they had been otherwise than as claimed by the defendants he could easily have made it clear. However, he chose to rely solely upon his technical prima facie case made by the writing itself; and, as indicated above, we are of the opinion that the evidence overcame any presumption favorable to the plaintiff.

For the reasons above indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    F. C. O’Donoghue, Plaintiff in Error, v. St. Louis Southwestern Railway Company, Defendant in Error.
    Gen. No. 18,132.
    1. Process—what service on corporation sufficient. Under section 8 of the Practice Act service of summons is sufficient to bring the defendant railway corporation, doing business in Illinois, within the jurisdiction of the court where there is nothing to contradict the return of the sheriff that service was had on one designated as chief clerk and agent of such corporation in the county in which the action is brought, and there is nothing to indicate that the person served is not such an agent as is contemplated by said act.
    2. Corporations—when foreign railroad corporation doing business in Illinois. Where a foreign railroad corporation operates trains and conducts its business as a common carrier between points in Illinois, it is doing business in Illinois within the statute relating to the liabilities and duties of foreign corporations doing business in the state.
    3. Corporations—where may be sued. The provisions of the Practice Act concerning where actions may be brought, and concerning actions against a railroad or bridge company, are not mandatory, but the provision that actions against a railroad or bridge company “may be brought in the county,” etc., should be read as an enlargement of the first part of the act.
    4. Statutory law—construction. The words “may” and “shall” in a statute are to be read interchangeably as will best express the legislative intent.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 29, 1913.
    Charles A. Butler, for plaintiff in error.
    Jeffery & Campbell, for defendant in error; Charles Y. Clark, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This case is brought to this court for the purpose of reviewing the order of the trial judge sustaining the motion of the Railway Company, hereinafter called the defendant, to dismiss the case on the ground that the venue in said action was improperly laid, and that the court was without jurisdiction over the subject-matter of the suit.

The plaintiff brought suit in the Municipal Court of Chicago, seeking to recover for alleged damages to fruit shipped over defendant’s lines. By the return of the sheriff it appears that summons was served by delivering a copy thereof, with the praecipe, statement of claim and affidavit attached, to “F. N. Winter, Chief Clerk and Agent of said Corporation.” The defendant filed a special appearance for the purpose of moving to dismiss for want of jurisdiction. Upon the hearing of the motion there was read an affidavit of James C. Jeffery, reciting that he was the agent of the defendant, with his office in the First National Bank Building, Chicago, Cook county, Illinois, and that the defendant does not lease, operate or control any lines of railroad in Chicago or the county of Cook; that its principal office is in St. Louis, Missouri, and that affiant was informed and believed that the said cause of action did not arise or accrue in the city of Chicago or county of Cook. In addition to the affidavit certain admissions of fact were made by the defendant and considered by the court. These admissions were that the defendant was a corporation organized under the laws of Missouri, with its principal office in the city of St. Louis, Missouri, with a line of railroad extending through Arkansas and Missouri, and that it operates trains and conducts its corporate business of common carrier over the lines of another road from Thebes, Illinois, to East St. Louis, Illinois; that it does not own, control or operate any line or lines of railroad in Cook county, and has no principal office in Cook county, and that the cause of action did not arise in Cook county; that it employs certain agents in Cook county merely for the solicitation of business, but that none of these agents have any contractual powers, nor can they sell tickets, nor receive nor pay out money, nor issue bills of lading, nor perform duties other than the mere solicitation of business for the defendant.

Thereupon the court entered the aforesaid order of dismissal, giving as reasons therefor that the defendant has no principal office in Cook county, and that the cause of action did not accrue in said county, and that the defendant has no line or lines of railroad running into or through said county, and that it was not doing business in said county.

The sections of the statutes involved in the consideration of the question before us are as follows:

Section 6 of chapter 110, Hurd’s Revised Statutes, provides:

‘1 Suits, Where Brought. It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, the plaintiff commencing his action where either of them resides, may have his writ or writs, issued directed to any county, or counties where the other defendant, or either of them may be found: * * * Actions against a railroad or bridge company, may be brought in the county where its principal office is located, or in the county where the cause of action accrued, or in any county into, or through which its road or bridge may run.”

Section 8 of chapter 110, Hurd’s Revised Statutes provides:

“Service on Corporation—Return. An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought. If he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county; * * * ”

Section 26 of chapter 32, Hurd’s Revised Statutes, provides that:

“Foreign Corporations—Real Estate. Foreign corporations, and the officers and agents thereof, doing business in this state, shall be subjected to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers. * * * ”

The sole question for our determination is whether, under the facts before us, the service of the summons was sufficient to bring the defendant within the jurisdiction of the court. One consideration, at least, leads us to the conclusion that the service on defendant was good and that the court erroneously entered the order of dismissal. By section 26 of chapter 32, above quoted, it is provided that foreign corporations “doing business in this state,” shall be subjected to the same liabilities, restrictions and duties as are imposed upon domestic corporations. The defendant herein, as shown by the record, operates trains and conducts its business as a common carrier from Thebes, Illinois, to East St. Louis, Illinois; that is, it is “doing business” in the state of Illinois, and therefore clearly comes within the provisions of section 26, and is subject to the same liabilities of summons as is a domestic corporation.

Turning, then, to section 8, chapter 110, for directions for serving such a defendant, we find that service may be made “by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county” in which the suit is brought. Nothing appears from the record to show that Winter, described in the return as the chief clerk and agent of the defendant, is not such an agent as is contemplated by section 8 as a proper party to be served.

The fact that the defendant carries on its business as a common carrier in operating trains, and all business incident thereto, in this state, distinguishes this case from Booz v. Texas & Pac. Ry. Co., 250 Ill. 376, in which case the question decided was whether the presence of an agent in this state with no contractual powers constituted “doing business” in this state. That is not the question before us, for it is admitted that the defendant is engaged in the business of a common carrier in this state.

But considered even in the light of the Booz case, supra, there is no showing made here that defendant’s agent, Winter, was not possessed of sufficient authority to bring the defendant within the designation of a corporation “doing business in this state.” The admission of facts states that the defendant employs certain agents without contractual powers but merely to solicit business, but it does not appear that Winter was one of such agents, and there is nothing tending to contradict the return of the sheriff upon the summons.

We cannot assent to the contention by the defendant that the provisions of section 6, chapter 110, concerning actions against- a railroad, are mandatory. The section must be construed as a whole, and the provision that actions against a railroad or bridge company “may be brought in the county,” etc., should be read as an enlargement of the first part of the act, which undertakes to limit the right of a plaintiff in bringing an action. The words “may” and “shall” in a statute are to be read interchangeably, as will best express the legislative intent, and in this instance the legislative intent to extend or enlarge the plaintiff’s right to bring his action is properly expressed by the permissive word “may,” and not by the mandatory word “shall.” Furthermore, the construction claimed by the defendant would bring this section in conflict with the obvious meaning of sections 26 and 8, as above explained, and would deprive the plaintiff of a right which is clearly granted by said sections of the statute. We must not strain for a construction which results in a conflict between statutes which without such construction would be consistent with each other.

For the reasons above indicated, we hold that the court had jurisdiction of the defendant, and that the court was in error in sustaining the motion to dismiss the suit, and the order of dismissal will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Joseph Foster, Defendant in Error, v. T. A. Cummings Foundry Company, Plaintiff in Error.
    Gen. No. 18,205.
    1. Master and servant—who are fellow-servants. . Those are fellow-servants who are co-operating, at the time of the injury, in the particular business in hand or whose usual duties are of a nature to bring them into habitual association, or into such relations that they can exercise an influence upon each other promotive of proper caution.
    2. Master and servant—fellow-servants. The question whether servants of a common master are fellow-servants is usually a question of fact, yet where the facts are not in dispute and all reasonable men would readily agree as to the conclusions which should be drawn from the admitted facts, the question whether the relation of fellow-servants exists becomes a question of law.
    3. Master and servant—when proper to submit question of fellow-servant relation to the jury. In a personal injury action, where the evidence showed that plaintiff, who was employed as a moulder in defendant’s foundry, seven or eight times a day required the assistance of a crane and would signal to the man who operated the crane who would then move it over and lift the iron box or “flask” used in making moulds, and that plaintiff was struck on the head by a hook from the crane when it was not being used in his work or called for by him, it is proper to submit the question whether plaintiff and the man operating the crane were fellow-servants to the jury and a verdict in favor of plaintiff will be sustained.

      Error to the Municipal Court of Chicago; the Hoist. Joseph Z. Uhlir, Judge, presiding.
    Heard in the Branch Appellate Conrt at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    Statement by the Court. This was a suit to recover damages for personal injuries received by defendant in error, Foster, while employed by the Foundry Company, plaintiff in error. The verdict of the jury and the judgment were favorable to Foster, and plaintiff in error is in this court seeking a reversal.
    The parties have stipulated as to the facts as follows :
    “The defendant in error was Joseph Foster, forty-eight years old, a molder by trade. The plaintiff in error was T. A. Cummings Foundry Company, engaged in the foundry business in the City of Chicago. Defendant in error was born in German Poland and had been in this country twenty-three years and had worked as a molder fifteen or sixteen years. He had been in the employ of plaintiff in error over a year. In the foundry room in which defendant in error worked was an overhead travelling electric crane which, at the time of the accident and for about two weeks prior thereto, was operated by a man named Peter Matuskey. The crane ran from one end of the shop to the other on a track twenty feet above the floor, and underneath the beam of the crane was a cage which could be run from one end to the other of the crane, so that any part of the shop could be reached. From the cage hung the hoisting tackle. In the cage rode the crane operator, who controlled the movements of the crane and hoisting tackle. By the hoisting tackle was suspended a horizontal six-inch I-beam about eight feet long, from which hung hooks used in picking up the objects that were to be moved. This beam was raised or lowered as might be required, and could be kept clear above the heads of the men on the floor. Defendant in error had a helper named Suydak. Defendant in error and his helper were engaged in making molds which were contained in a two-part iron box or ‘flask.’ They would make about seven or eight of these molds per day, and each time one was made it was the custom for them to have the assistance of the crane in handling the flask. Defendant in error would signal with his hand to Matuskey, who would run the crane over to their work. Defendant in error and his helper would then attach the hooks to the top of the flask. Defendant in error would signal to Matuskey to hoist. The top would then be turned over and placed. Defendant in error and his helper would disengage the hooks and then defendant in error would signal to Matuskey to take the crane away. This process was repeated at the making of each mold completed by defendant in error during the employment of Matuskey, but defendant in error never gave any orders to Matuskey other than those mentioned. The accident happened January 17, 1911. Defendant in error was bending over at his work when Matuskey ran the crane along the shop, and defendant in error was struck in the head by the I-beam, and sustained the injuries for which suit was brought.
    “The crane had not been called by defendant in error at the time he was injured, and was not being used at the time in connection with his work.”
    It is also stipulated that—
    “Defendant in error’s case is based upon the contention that defendant in error and Matuskey were not fellow-servants, and the sole ground upon which plaintiff in error asks a reversal is that defendant in error and Matuskey were fellow servants, and that the only negligence, if any, causing defendant in error’s injury, was that of Matusky. ’ ’
    John Clark Baker, for plaintiff in error.
    John 0. Wagner and Ignatius Beckman, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

It has been repeatedly stated that “those are fellow-servants who are co-operating, at the time of the injury, in the particular business in hand, or whose usual duties are of a nature to bring them into habitual association, or into such relations that they can exercise an influence upon each other promotive of proper caution.” Chicago City Ry. Co. v. Leach, 208 Ill. 198 (205).

It has also been repeatedly stated that “the question whether servants of a common master are fellow-servants within the meaning of the law is usually a question of fact. If, however, the facts are not in dispute and all reasonable men would readily agree as to the conclusions which should be drawn from the admitted facts, the question whether the relation of fellow-servants exists in a given case becomes a question of law.” Linguist v. Hodges, 248 Ill. 491 (502).

Thus far there is harmony in the decisions on this question. When, however, reasonable minds undertake to agree as to the conclusions which should be drawn from admitted facts, unanimity of opinion frequently ceases. It is clear that each case must be controlled by its peculiar facts. Consequently, opinions on this question in cases involving different situations and circumstances do not give much assistance in the determination of the case at bar. None of the many cases cited by both counsel involves such facts as we now have under consideration, and we can discern no principle or test in these cases which guides us to a conclusion as to whether or not the defendant in error, Foster, and Matuskey were fellow-servants at the time of the accident in question.

It is apparent that these men were not co-operating, at the time of the injury, in the particular business in hand. Therefore they do not come within the first branch of the rule. It is contended by plaintiff in error that they were fellow-servants within the second branch of the rule, because their usual duties were such as would necessarily, from time to time, bring them into association. It appears to be the fact that seven or eight times a day Foster would signal to Matuskey to run the crane over to the point where Foster was working, and lift an iron box or ‘ ‘ flask” used by Foster in making molds. This- operation consisted in Foster and his helper attaching hooks running from the hoisting tackle of the crane to the top of the box or flask, and then signaling Matuskey to hoist. This box would then be turned over, and Foster and his helper would disengage the hooks and Foster would then signal to Matuskey to take the crane away.

While in a certain sense it might be said that the performance of this- operation seven or eight times' a day was an habitual association of the men in the discharge of their usual duties, we are unable to see how it can be said, as a matter of law, that it appears beyond doubt or dispute that this relation or association between them was so intimate that they must have had an opportunity to exercise a mutual influence upon each other promotive of proper caution. One can readily see that after they had finished the particular work in which they co-operated, the work of each would be wholly apart from and independent of the work of the other. There would be no occasion at this time for either man in the discharge of his duties to have any thought or care concerning the other. The associations between them were such that we are unable to say that all reasonable minds would agree that they could exercise an influence upon each other pro-motive of proper caution. At least there is- reasonable cause for doubt on this question, and we are of the opinion that the defendant in error not only had the right to have this question submitted to the jury, but we are unable to say that the conclusion of the jury in this regard was against the weight of the evidence.

There was no error, therefore, in the order of the trial court denying the motion for a new trial, and we see no reason to disturb the verdict and the judgment. The judgment will be affirmed. Affirmed.


text:
    Marcus Sachs, Appellant, v. Simon Sachs et al., Defendants. Daniel A. Campbell, Appellee.
    Gen. No. 18,245.
    1. Banks—where postal receipts are deposited as separate account. Where a branch postal station is located in a drug store and a partner in the drug business, appointed deputy clerk for the sale of money orders, deposits the postal order receipts in a bank in the firm name in a separate account, headed ‘ ‘ Station Receipts, ’ ’ and makes daily reports to the postmaster and sends a cheek for the amount of the receipts each day, a receiver, who is placed in charge of the drug business in an action between the partners, is properly required to pay over to the postmaster the fund so deposited.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    Silber, Isaacs, Silber & Woley and Peter G. Raff, for appellant Marcus Sachs ; Frederick D. Silber, of counsel.
    L. C. Cooper, for appellee Daniel A. Campbell.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by Marcus Sachs from an order entered by the chancellor, requiring Henry D. Raff, receiver, to pay over certain funds to Daniel A. Campbell, the postmaster of the United States Government at Chicago.

About June 17, 1905, Marcus Sachs and his son, Simon Sachs, became partners in the drug business. This continued for a number of years when, it is alleged, Simon Sachs sold the partnership property and formed a corporation, doing the same business as had been done by the partnership. During the existence of the partnership Simon Sachs was appointed a deputy clerk for the sale of postal money orders, with a branch station in the drugstore of the firm. Each day he deposited the moneys received from the sale of postal money orders in the West Side Trust & Savings Bank. The checking account with the bank was in the firm name, but the deposits were made with two deposit slips, one showing the receipts from the sales of postal money orders, and the other the total amount of deposits of the drugstore business and of sales of postal money orders. The account was kept by the bank in this manner, the deposits of postal order receipts being kept in a separate account under the heading “Station Receipts.” Each day Simon Sachs made a report of the sales of postal orders to Daniel A. Campbell, the postmaster, and attached thereto a check to the postmaster’s order on the bank for the money deposited as “Station Receipts” for the period covered by the report.

Marcus Sachs filed a bill alleging misapplication of the partnership funds by Simon Sachs, and obtained the appointment of a receiver of the corporation. The receiver took possession of the funds deposited in the bank about April 12, 1911. Subsequently Daniel A. Campbell filed his petition in said cause, setting forth that he was the postmaster of the city of Chicago for the United States Government, and that Simon Sachs had been appointed as an agent for the sale of money orders in the branch station located in the drugstore in which the said corporation was doing business; that it was the duty of Sachs, as such postal clerk, to make daily reports of his sales and to pay over all moneys received therefrom, and that Sachs had been performing his duties in this manner, remittances to the postmaster being made in the form of checks drawn upon the West Side Trust & Savings Bank, payable to Campbell, as postmaster; that Sachs made his daily report for April 10,1911, showing sales of money orders to the extent of $674.84, and delivered therewith a check payable to the postmaster for said sum of $674.84, dated April 11th and drawn upon said West Side Trust & Savings Bank; that he also presented his daily report for April 11, 1911, showing money order sales to the amount of $300.24, and likewise delivered to the postmaster his check dated April 12th, drawn upon the same bank, for the said sum of $300.24; that said checks were signed “S. Sachs & Company, Simon Sachs, Treasurer;” that petitioner presented said checks to the bank for payment but that payment was refused. Said petitioner further represented that the amount of said sales, as shown by said reports and said checks, was correct, and that no person had any interest in said money save said Simon Sachs as clerk, and the petitioner as postmaster. Said petitioner prayed that an order be entered that the money represented by said checks be paid.

Simon Sachs also filed a petition, setting up the same facts as were set up in the petition by Daniel A. Campbell, the postmaster. Said Sachs represented further that the moneys collected by him from the sale of money orders were deposited in said bank by him, as agent of the post office department of the United States Government; also that the receiver who had been appointed by the court had possession of said moneys.

Hearing was had by the court upon these petitions and the answers thereto. It appeared that the receiver had taken possession of $494.04 of the money on deposit in the bank. As stated by a witness, the bank had apparently peremptorily taken five or six hundred dollars of the balance of the deposit to apply on some note. After hearing, the court entered an order upon the receiver to pay over to said Campbell the money theretofore turned over to him by the West Side Trust & Savings Bank, amounting to $494.04, which order Marcus Sachs, the complainant in the original bill, brings before this court by appeal.

Consideration of the facts above set forth makes it evident that the theory upon which appellant bases his points and argument cannot be maintained, and therefore the cases cited by him are not applicable. Appellant treats this as a case of creditor of a corporation holding certain checks drawn upon the general fund of such corporation. We do not so view the matter. Simon Sachs, as the agent of the United States postmaster, deposited the postal money separate and distinct from the money of his drug business. The bank kept it in a separate account, designated as “Station Receipts.” There was no mingling of the funds. The mere physical mixing of the coins or bills is immaterial. The identity of the deposits of the receipts from the sales of postal orders was preserved, so that this fund could be distinguished from all other money, and it is the rule that so long as there is a separate and independent fund, distinguishable from any other fund, it can be followed. The bank’s account was, in essence and substance, with the postmaster, and the adoption of a convenient method of checking it out under the firm name did not change the substance of the transaction.

All these facts were within the full knowledge of all the parties concerned, and none will be heard to question the right of the petitioner, Campbell, to the money which rightfully is his.

The view we have taken of this matter disposes of all the questions raised by appellant, so that it is unnecessary to consider them in detail. In our opinion the fund in the account designated “Station Receipts” clearly belonged to the postmaster, Campbell, and the order of the chancellor was right and is affirmed.

Affirmed.


text:
    Louis Brandes, Appellee, v. Edna Dressel et al., Defendants. On Appeal of Edna Dressel et al., Appellants.
    Gen. No. 18,277.
    1. Chancery—what decree does not supersede jurisdiction of probate court of another state. A decree of the circuit court that complainant, an attorney, is entitled to and has a lien for services, etc., on the shares of certain persons to whom shares of an estate were apportioned by the probate court of a foreign state, and which are now in the hands of an administratrix, does not dispose of or supersede the jurisdiction of such probate court as to its order of distribution, where the rights of the attorney were not adjudicated in the probate court, and the administratrix of the estate appears and confesses the allegations of the petition that by contract complainant was to receive a certain share if his services were successful.
    2. Chancery—what decree does not undertake to annul conveyance of land in another state. A decree does not undertake to annul a conveyance of land in another state where such decree finds that no consideration was given for the execution of a certain quitclaim deed and that it was executed for the sole purpose of defrauding complainant.
    3. Contracts—what fair and not champertous. It cannot be said that a contract for attorney’s services was unfair and champertous where the decree of the trial court finds that the amount claimed is usual and reasonable, the relation of attorney and client did not exist when the contract for services was made, the attorney did not undertake to pay any costs of the proceedings prosecuted by him, and paid no costs.
    4. Chancery—when decree of circuit court does not purport to operate beyond county. A decree awarding complainant a lien for services as an attorney on certain shares of distributees in the hands of the administratrix of an estate being administered in a foreign state does not purport to operate beyond the county.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed with statutory damages.
    Opinion filed May 29, 1913.
    Enoch Habpole, for appellants.

      Louis Braudes, pro se, and Joseph D. Irose, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The appellee, Louis Brandes, an attorney at law in Cook county, Illinois, filed a bill in chancery, to which the defendants Edna Dressel, John Hart and Enoch Harpole (appellants here) demurred. The other defendant named in the bill, Emma Bone, administratrix, filed an answer admitting the allegations of the bill. The chancellor overruled the demurrers, and appellants abiding by the same a decree was entered in accordance with the prayer of the bill, from which the appellants aforesaid have appealed.

The facts involved are set forth in the decree, which was responsive to the allegations of the bill, and are substantially as follows: On April 27, 1911, Louis Brandes, being a licensed practicing attorney of Chicago, was retained by Edna Dressel and John Hart, of the same city, to prosecute proceedings to secure their rights in the estate of Stephen Bone, deceased, of Mercer county, Ohio. Thereupon contracts were entered into between the said Brandes, on the one hand, and Dressel and Hart on the other, wherein they assigned to Brandes for his services and expenses one-' third of their interest in such final decree as should be rendered in their favor in said proceedings, and to such share and portion of the sale of premises as should be apportioned to them by the courts of Mercer county, Ohio; that said Brandes attended to and prosecuted proceedings to secure their rights, and advanced money to them, and incurred expense in going from Chicago to Mercer county, Ohio, to represent them in the proceedings in the probate court of Mercer county and on an appeal from the decree rendered by said court to the common pleas court of said county; that his services were successful and a final decree was rendered establishing their rights and claims, and that the lands of said estate were sold pursuant to said final decree on September 12, 1911; that the proceeds of said sale were $7,325, which were in the hands of Emma Bone, administratrix, subject to payment and distribution as said probate court of Mercer county, Ohio, should direct.

The decree further found that neither Edna Dressel nor John Hart had paid Brandes for his services or monéy advanced, and that the total amount provided for in the contracts was due and unpaid; that they have no property except their interest in the estate of Stephen Bone from which Brandes could collect, and that complainant is entitled to and has a lien for his said services and for money advanced by him upon the shares and interests of said Edna Dressel and said John Hart in the proceeds of said sale of land, now in the hands of said administratrix. •

The decree further finds that after the entry of the final decree in the Common Pleas Court of Mercer county, Dressel and Hart notified Emma Bone, administratrix, that Brandes was discharged as attorney, and that Enoch Harpole, one of the appellants herein, an attorney of Chicago, was then representing them. The court further found that after said final decree said Harpole claimed that Dressel and Hart executed and delivered to said Harpole on or about September 7, 1911, a quitclaim deed purporting to convey to said Harpole all the right of said Dressel and Hart, but the court further found “that no consideration for the execution of said pretended deed was given to said Dressel and Hart, or to either of them, by the said Harpole; and the court further finds that the said deed was executed and said notice given to the said administratrix by said Harpole, Dressel and Hart, for the sole purpose of defrauding the complainant of his rights and interests in the said contract between said complainant and said Dressel and Hart.”

The court further found that at the time of the discharge of Brandes, and at the time said deed was given to Harpole, there was no further need of legal services to secure the rights and interests in the proceeds of said sale for Dressel and Hart, and that Dressel, Hart and Plarpole knew that no further service was required.

The court further found that the share of Edna Dressel in the said proceeds was $1,393.66, and that Hart’s share was $400.16, and that all the court costs had been paid.

The court decreed that Brandes was entitled to one-third of said share of Edna Dressel, and to one-third of said share of John Hart.

Many points are made by appellants as grounds for a reversal, which do not require any extended discussion. It is argued that the probate court of Mercer county, Ohio, having jurisdiction, the circuit court of Cook county should not interfere by assuming to dispose of funds in the hands of the administratrix. It is a sufficient reply to say that the decree does not dispose of or supercede the jurisdiction of the probate court of Mercer county, Ohio, as to its order of distribution. The rights of Brandes were never adjudicated in the probate court, hut the administratrix of the estate has appeared in this court and confesses the allegations of the petition.

It is also claimed that a court of one state cannot decree that a conveyance of land in another state is fraudulent and void, or annul the deed. Inspection of the decree entered herein shows that it does not undertake to annul any conveyance of land.

As to the point of good faith and fairness between attorney and client, and the claim that the contracts in question are champertous, it is a sufficient reply to say that the relation of attorney and client did not exist when the agreements for services were made, and that the attorney did not undertake to pay any costs of the proceedings in Mercer county, and paid no costs. The decree also finds that the amount claimed by Brandes “is the usual, ordinary, reasonable fee of attorneys for like services.”

As to the point that the allegations of the bill do not sustain the decree, it is our opinion that the decree is based upon the allegations of the bill. It is also claimed that the decree is erroneous in that it cannot operate beyond the state in which the jurisdiction was exercised. Inspection of the decree discloses that it does not purport to operate beyond the jurisdiction of the circuit court of Cook county, Illinois. And as to the last point, which is similar to the first, we reply that no order of distribution of the estate of Stephen Bone, deceased, is made by the decree of the circuit court of Cook county.

Concluding as we do, that the criticisms of the decree are not well taken, but that the decree is in accord with justice and right, it will be affirmed.

Appellee has asked for statutory damages on the ground that this appeal has been taken solely for delay. We are of the opinion that this is the fact, and therefore we shall award to appellee as statutory damages the amount of $25, and the decree will be affirmed.

Affirmed with statutory damages.


text:
    Republic Iron & Steel Company, Plaintiff in Error, v. Sturges & Burn Manufacturing Company, Defendant in Error.
    Gen. No. 18,290.
    Accord and satisfaction—what transaction constitutes. An accord and satisfaction of an unliquidated account is established where the debtor’s bona fide claim for damages which is presented to the creditor with a detailed statement of the account is disputed, and the creditor with knowledge that the debtor insists on his claim cashes a check sent in settlement of the account with such claim deducted and keeps the proceeds, though such creditor demands payment of the amount deducted.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate.Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    Rehearing denied June 12, 1913.
    Fyeee, Adcock & Ryner, for plaintiff in error.
    Bulkley, Gray & More, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The Republic Iron & Steel Co., hereinafter called plaintiff, brought suit in the Municipal Court against the Sturges & Burn Manufacturing Co., hereinafter called defendant, to recover the sum of $506.66 with interest, claiming this amount as a balance due it for steel sold and delivered under a certain contract.

Two defenses were interposed, (1) accord and satisfaction, and (2) recoupment and set-off by way of damages for delay in the delivery of steel called for by the contract.

In the trial court a jury was waived and the case submitted to the court upon the one issue of accord and satisfaction. Upon this issue the court found in favor of the defendant, and entered the judgment which plaintiff seeks in this court to have reversed.

The facts giving rise to the litigation are as follows: A contract between the parties was made on June 18, 1909, for the purchase by the defendant and the sale by the plaintiff of a large amount of Bessemer steel and can bands. By the contract all of this steel was to be specified by the buyer prior to July 1, 1910, in about equal monthly quantities, at least thirty days before each month in which shipments were to be made.

It is claimed by the defendant that it gave the required specifications in ample time, as required by the contract, but that the plaintiff was dilatory in the matter of shipments. There was evidence tending to show that this delay on the part of the plaintiff in shipping the steel was such that the defendant was obliged, from time to time, to make small purchases at a higher price than the contract with the plaintiff called for. An itemized bill, showing damages on account of such purchases amounting to $506.66, with an explanatory letter, was sent to the plaintiff, to which plaintiff replied that it could not entertain this charge for damages. Thereupon numerous letters passed between the parties, in which the defendant insisted that it was entitled to its claim for damages, the plaintiff insisting that it would not allow such claim. After some little time defendant made up a statement of its account with the plaintiff, and credited itself with the amount of its claim for damages, to-wit $506.66, leaving a balance due to plaintiff of $1,575.78. Printed upon the. face of this statement was a receipt reading as follows:

“Received of Sturges & Burn Mfg. Co. Fifteen Hundred Seventy-five and 78/100 Dollars, in settlement of above account. ($1575.78.)

“Please date, sign and return promptly.

“If not correct, return without alteration and state difference.”

This statement, together with a check, was sent to plaintiff. Plaintiff, through its Chicago sales manager, called upon the defendant and demanded payment of the amount deducted, but did not return the check or statement, and six days later the plaintiff cashed the defendant’s check, keeping the proceeds and retaining the statement of account. After this a number of letters passed between the parties in which the plaintiff continued to demand payment of the disputed amount, which was refused.

It has been repeatedly held in many cases in this state that a transaction of the kind above set forth constitutes a full accord and satisfaction. We have here an unliquidated account between the parties, and a bona fide claim on the part of the debtor, which is disputed; a presentation of that claim in the form of a’detailed statement; a thorough knowledge on the part of the creditor that its debtor was insisting upon its claim; and a check sent in settlement of the account. Under such circumstances the acceptance of the check and the proceeds thereof constitutes an acceptance of all the conditions attached thereto by the sender of the check. The following cases- are decisive of this point: Snow v. Griesheimer, 220 Ill. 106; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; Ostrander v. Scott, 161 Ill. 339; Worth Huskey Coal Co. v. Parker-Washington Co., 157 Ill. App. 199; Coey v. Coey S Co., 150 Ill. App. 296; Stan v. Regelin, 147 Ill. App. 550; Michigan Leather Co. v. Foyer, 104 Ill. App. 268; George W. Linn Co. v. Harris, 118 Ill. App. 5.

It is argued by the plaintiff that the failure of the defendant in subsequent correspondence to assert that there was a full accord and satisfaction, must be construed as indicating that the check was not tendered for that purpose. We cannot assent to this claim. Defendant did not express itself with legal accuracy, hut we find nothing in the correspondence indicating any disposition or intention on its part other than to consider that the account had been paid in full. We cannot construe anything subsequently done by the defendant as a waiver of its position in the matter.

Concluding as we do, that the finding of the trial court was right, the judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Clark

text:
    Romnald Napierkowski, Appellant, v. Chicago Title & Trust Company, Appellee.
    Gen. No. 18,340.
    Appeals and errors—where instructions must be objected to. Instructions which were not objected to before the jury retired, as required by Rule 8 of the Municipal Court, cannot be reviewed.
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    Henry S. Blum, for appellant.
    Vail & Vette, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the appellant, as plaintiff, against the appellee, as defendant, seeking to recover a sum of money alleged to have been deposited with the defendant under an escrow agreement. The defense was that the money was not deposited by the plaintiff but by one I. J. Chileski, an attorney who had been acting for the plaintiff in real estate negotiations which resulted in the maldng of the deposit.

There was a trial before the court and a jury and a verdict rendered in favor of the defendant. From a judgment entered against the plaintiff for costs this appeal is taken.

The court gave the charge to the jury orally, and the asserted right to a reversal is based wholly upon alleged errors therein. It is said the trial judge had before him certain written instructions tendered by the parties, and that after having charged the jury (reading from these instructions) on motion of the defendant made changes as to some of them. The plaintiff did not preserve his right to a review by objecting before the jury retired, as required by Rule 8 of the Municipal Court. The abstract does not contain the charge given by the court, and under the rules there is nothing for this court to review. We have, however, examined the record with care, and find no error that should cause a reversal of the judgment either in the charge to the jury or elsewhere. The verdict seems to have been warranted by the evidence.

The judgment will be affirmed.

Affirmed.