author: Me. Justice Matchett

text:
    Fred Hubbard, Plaintiff in Error, v. National Stamping & Electric Works and the Clerk of the Superior Court of Cook County, Defendants in Error.
    Gen. No. 23,974.
    1. Infants, § 41

      —when satisfaction of judgment by guardian ad litem binding. The satisfaction, in open court, of a judgment in favor of a minor, by payment to his fathér, as guardian ad litem, of the amount of such judgment, has all the qualities of a judgment at law and is binding on the minor.
    2. Appeal and bbbob, § 21

      —when writ of error proper. Any error in the satisfaction, in open court, of a judgment in favor of a minor, by his guardian ad litem, can be corrected by appeal or writ of error.
    3. Judgment—when equity will not set aside satisfaction of judgment in favor of minor because of existence of adequate remedy at law. Equity will not interfere and set aside a satisfaction, in open court, by the guardian ad litem of a minor, of a judgment in the latter’s favor, where an appropriate remedy at law by appeal or writ of error exists because the time limited by J. & A. f 8654, providing that the period of infancy shall be excluded from computation of the 3-year period for prosecution of a writ of error, has not expired.
    4. Equity, § 139

      —when bill insufficient. A bill in equity which fails to offer to do equity is defective.
    5. Judgment, § 306

      —when equity jurisdiction to set aside. A court of equity has jurisdiction to set aside a judgment at law upon proper showing.
    6. Judgment—when bill to set aside satisfaction of judgment insufficient. A bill to set aside a satisfaction, in open court, by a guardian ad litem of a minor, of a judgment in the latter’s favor, held insufficient.
    Error to the Circuit Court of Cook county; the Hon. Oscab B. Heabd, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed February 11, 1919.
    Miller, Starr, Brown, Packard & Peckham, for plaintiff in error; Charles L. Cobb, of counsel.
    Stedman & Soelke, for defendants in error.

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

   Me. Justice Matchett

delivered the opinion of the court.

Plaintiff in error seeks to reverse a decree which dismissed his bill for want of equity. A demurrer to the bill having been sustained, complainant moved for leave to amend, which was granted. He did not amend within the time allowed and thereafter upon motion the bill was dismissed. Appellee makes the point that complainant did not elect to stand by his bill; that, by taking leave to amend it, he waived his right to question the rulings of the court upon the demurrer. We are inclined to think there is merit to this contention. Miller v. McCormick Harvesting Machine Co., 84 Ill. App. 571; Wickham v. Hyde Park Building & Loan Ass’n, 80 Ill. App. 523; Bennett v. Union Cent. Life Ins. Co., 203 Ill. 439. However, as we have concluded the decree was right upon the merits, we prefer to dispose of the case on that ground.

The material facts alleged by the bill are that the complainant, when a minor about 15 years of age, was employed by the corporation and sustained personal injuries as claimed by reason of its negligence; that he brought suit at law in the Superior Court by his father as next friend, and upon trial by a jury obtained a verdict for $1,375, upon which the court entered judgment; that thereafter the corporation “wrongfully” paid said $1,375 to John C. Hubbard, the father and next friend; that said corporation and said next friend “wrongfully caused said judgment to be satisfied of record in open court and the said John C. Hubbard converted the money so received from the defendant, the National Stamping & Electric Works, to his own use, and your orator did not receive the same or any part thereof, except the sum of $225.00, which the said John C. Hubbard paid over to your orator during your orator’s infancy, and of said sum of $225.00 which your orator spent before attaining his majority, your orator expended not to exceed $50.00 upon necessities”; that at the time of payment said John C. Hubbard was not the guardian of complainant, and never has been, and had no authority to receive payment or cause the judgment to be satisfied; that complainant attained his majority August 17, 1913; that neither before nor since has he received any part of the said $1,375, except as set forth, and that because of said satisfaction the clerk of the Superior Court refused to issue an execution upon said judgment.

The bill was filed July 1,1915. It made defendants thereto the judgment creditor and the clerk of the Superior Court, and prayed that the record of the satisfaction of judgment might be expunged from the record of the court and the clerk compelled to issue an execution upon the judgment.

Appellant contends that the question raised is settled in his favor by Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385. The opinion of the court there states that the principal question raised by the pleadings is whether a judgment in favor of a minor may be satisfied by payment of the amount recovered to the next friend or his attorney. The court held in the absence of a statute it might not be so satisfied, and while appellee argues here to the contrary, we think the decision binding on us. We do not think, however, that it is conclusive of the questions raised on this record. That was a suit at law,—this is a suit in equity. The payment there pleaded, unlike that here alleged, was made without the sanction of the court. While the bill is indefinite in some respects we think it may be inferred from the allegation that the guardian ad litem “caused said judgment to be satisfied of record in open court”; that the court entered of record a finding and judgment of satisfaction. The satisfaction of the judgment, therefore, "became a solemn judicial act in which the court had jurisdiction, and is clearly distinguishable from a satisfaction entered on the record by a plaintiff in a case, or by some person acting for him. State v. Martin, 20 Ark. 629. We think, therefore, the satisfaction here considered must be deemed to have the qualities of a judgment at law. If so, the fact that complainant was a minor would not make the judgment less binding on him. Chudleigh v. Chicago, R. I. & P. Ry. Co., 51 Ill. App. 491. If the order of the court was erroneous, the error could be corrected by appeal, by writ of error, or in other appropriate way. By force of the statute, see J. & A. ch. 110, sec. 117, ¶ 8654, the minority of complainant extended the time allowed to have the alleged errors reviewed and corrected. This time had not expired when the complainant filed his bill. If facts existed which made it impossible for complainant to have these errors so reviewed and corrected, they are not set up in the bill. There is nothing alleged therein which would indicate that the courts at law could not give a full, adequate and complete remedy for the supposed wrong to complainant. The general rule undoubtedly is that where complainant has a full, adequate and complete remedy at law, courts of equity will not interfere.

We have examined the cases cited by appellant. Cody v. Roane Iron Co., 105 Tenn. 515, is the only one of these which we think holds that the remedy of complainant in such a case is in equity. There the point that complainant had an adequate, full and complete remedy at law does not seem to have been either raised or discussed.

We think, too, the bill is defective in that it fails to offer to do equity. A court of equity has jurisdiction to set aside a judgment at law upon proper showing, but the facts set forth in this bill are not sufficient to call for its intervention. Harding v. Hawkins, 141 Ill. 572; Friedberg v. DePew, 200 Ill. App. 398; Simpson v. Simpson, 273 Ill. 90.

The decree of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Edward T. Page, Appellee, v. Stanley W. Wooster, Appellant.
    Gen. No. 24,178.
    1. Bills and notes, § 12

      —what promises must not he included in notes. Under section 5 of the Negotiable Instruments Act (J. & A. V 7644), relating to the requirements as to negotiable instruments, other promises than to pay money except as therein provided must not be included, and section 3 (J. & A. If 7642), providing that a statement of the transaction which gives rise to the instrument may appear thereon without destroying its negotiable character, does not conflict with or control section 5.
    2. Biles and notes, § 12

      —what not promissory note. An instrument calling for the payment of money, but designated as a subscription, and signed by the maker, and by which the maker acknowledges a subscription for a scholarship in a certain school, promises to meet certain requirements as to studying, and agrees that the delivery to him of the scholarship, which is a separate document, but was executed at the same time as such instrument, constitutes the acceptance of the subscription, and that the subscription is not subject to cancellation, and containing pictures tending to mislead the signer as to the character of the instrument, is not a promissory note but a special contract.
    Appeal from the Municipal Court of Chicago; the Hon. Shebidan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed.
    Opinion filed February 11, 1919.
    Rehearing denied February 18, 1919.
    Edward J. Kelley, for appellant.
    Clarence A. Samuel, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.

Defendant appeals from a judgment for the plaintiff entered by the Municipal Court upon the verdict of a jury. The plaintiff in his statement of claim alleges that he is the owner of a certain promissory note made and delivered by the defendant dated April 18, 1914, for the sum of $100, payable to the plaintiff or his order in instalments; that in and by said note it was provided that if default is made in the payment of any one of said instalments when the same became due, the unpaid balance should at once become due and payable; that defendant made default and that all of the principal of said note except $9 remains unpaid.

No affidavit of merits was filed or required in this class of cases under the rules of the Municipal Court.

The plaintiff offered in evidence a document characterized as a “promissory note.” The writing designates itself “a subscription.” It begins with a warning not to sign without reading it. It contains addresses of the offices of the Page-Davis School in New York, London, Melbourne and Paris. It is set out in full in the abstract, covering several pages. It is signed by the defendant under seal and purports to be “Accepted by Page-Davis Co., Edward T. Page, Pres.” Towards the center of this document we find language which, if it stood alone, would, we think, constitute a promissory note to the order of plaintiff as set forth in his statement of claim. The language of the alleged note blends harmoniously with the context. To the right of it appears the picture of a gentleman who is designated “The World’s First Advertising Instructor.” To the left is a representation of a gold ■medallion upon which appears the stars and stripes, the colors of France and the Union Jack. If the document is a promissory note it seems well designed to lead one to sign without knowledge of that fact. This document was received in evidence without preliminary proof over the objection of the plaintiff, and defendant rested his case. A motion of defendant for a directed verdict was refused.

The document in question is too long to be set forth in this opinion. In addition to the promise to pay money to the order of plaintiff, the maker acknowledges a subscription for a scholarship in the “Page-Davis School”; promises to study 2 hours per week, if not prevented; to begin studying as soon as he receives the first instruction papers, or within 2 days thereafter; agrees that the delivery to him of the scholarship constitutes the acceptance of the subscription; that the subscription is not subject to cancellation; and that Edward T. Page shall not be required to refund any part of the money paid for said scholarship. Many other promises by both the parties appear in the writing. The “scholarship” to which it refers was executed at the same time. It is in evidence as a separate document.

In the trial the court ruled the document was a promissory note and instructed the jury on that theory.

Appellant makes the point that the instrument offered and received in evidence is not a promissory note. Appellee contends that it is and relies upon Page v. Suender, 210 Ill. App. 208. We find, however, that only one of the parties to the record appeared in that case in the Appellate Court; that the instrument claimed to be a promissory note was imperfectly abstracted, and the points raised here were not there presented.

Section 5 of the Negotiable Instruments Act (Hurd’s Rev. St. ch. 98, page 1781, J. & A. ¶ 7644) provides: “An instrument which contains an order or promise to do an act in addition to the payment of money is not negotiable under this act. But the negotiable character of an instrument otherwise negotiable is not affected by a provision which:

“1. Authorizes the sale of collateral securities in case the instrument be not paid at maturity; or

“2. Authorizes a confession of judgment; or

“3. Waives the benefit of any law intended for the advantage or protection of the obligator; or

“4. Gives the holder an election to require something to be done in lieu of payment of money.

“But nothing in this section shall validate any provision or stipulation otherwise illegal or authorize the waiver of exemptions from execution.”

Irrespective of that act it is the general rule, as we understand it, that it is essential to the negotiability of a bill or note that it purport to be only for the payment of money, and that the order to pay must not be coupled with other or non-negotiable stipulations between the parties. If other agreement of a different character is ingrafted upon it, it becomes a special contract and thereby loses its character as a commercial instrument. Daniel on Negotiable Instruments (6th Ed.), vol. 1, p. 79; American & English Encyc. of Law, vol. 4, p. 124. It is true, as appellant points out, that under the provisions of section 3 of our Negotiable Instruments Act (J. & A. ¶ 7642), a statement of the transaction which gives rise to the instrument may appear thereon without destroying its negotiable character. Doyle v. Considine, 195 Ill. App. 311. This does not conflict with or control the provisions of section 5 that other promises than to pay money except as therein provided must not be included. If they are included, the instrument becomes a special contract between the parties executing it.

We hold the instrument here sued on is not a promissory note within the meaning of the statute, and hence the evidence had no tendency to support the statement of claim. The instrument was a special contract between the defendant and Page-Davis Company and not a mere promissory note to plaintiff. He cannot recover on it as such. The evidence is insufficient to sustain the statement of claim or support the judgment.

It will be reversed.

Reversed.


author: Mr. Justice Matohett

text:
    Eugene J. Bein, trading as E. Bein Glass Company, Appellant, v. John Blazejczyk, Appellee.
    Gen. No. 24,186.
    1. Pleading, § 160

      —what is purpose of section 55 of Practice Act relating to affidavit of defense to portion of claim. Section 55 of the Practice Act (J. & A. 8592), which provides that if an affidavit of defense is only to a portion of plaintiff’s demand, plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of plaintiff’s demand in dispute as if the suit had been brought therefor, the court making such order as to costs as may be equitable, is a highly remedial statute, intended to do away with the common-law rule which permitted only one judgment to be entered in an action.
    2. Action, § 55

      —what is basis for common-law rule against splitting cause of action. The common-law rule forbidding the splitting up of a cause of action is based upon the fundamental principles that there must be an end of litigation, and that a party should not be twice vexed with the same cause of action, its purpose being to prevent vexatious and oppressive litigation.
    3. Action, § 56

      —what is effect of section 55 of Practice Act upon common-law rule against splitting cause of action. Section 55 of the Practice Act (J. & A. f 8592), authorizing an action to be proceeded with as .to the disputed portion of a claim, where the affidavit of defense is only to a portion of the claim and a judgment for the undisputed balance, does not change the common-law rule against splitting a cause of action, and hence a judgment for plaintiff on an undisputed balance and a nonsuit as to the disputed portion precludes a recovery in an independent action for such disputed portion.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed February 11, 1919.
    Wiley & Mack, for appellant.
    No appearance for appellee.

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

   Mr. Justice Matohett

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment in favor of defendant entered on the verdict of a jury. The facts were stipulated, and upon such stipulation the court instructed the jury to find a verdict for the defendant.

The error urged is the giving of the instruction. The facts in brief are that in July, 1914, plaintiff sued the defendant for goods sold and delivered. The defendant in his affidavit of merits admitted that $80.96 of the amount sued for was due and owing. The plaintiff thereupon took judgment for that amount and the case was ordered to proceed to trial as to the balance claimed, which was $75. After the trial began plaintiff took a nonsuit, but did not vacate or set aside the judgment rendered. On the contrary he sued out an execution and collected it by levy and sale, and the judgment was satisfied.

The plaintiff in this action sued to recover the balance of the account claimed in the first action. The court held that the judgment rendered in the first action was a bar to the second suit, that the plea of res adjudicaba was sustained by the facts.

The question involves the construction of the last clause of chapter 110, sec. 55 of the Practice Act (J. & A. ¶ 8592), which provides that if the affidavit of defense is only to a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of plaintiff’s demand in dispute as if the suit had been brought therefor, the court making such order as to costs as may be equitable. This clause of this section of the statute apparently has not been construed by our Supreme Court, but this court in McKey v. Provus, 181 Ill. App. 364, held that it was a highly remedial statute intended to do away with the common-law rule which permitted only one judgment to be entered in an action.

The construction now contended for by appellant would require us to go further and hold that it was also intended thereby to change the common-law rule which forbids the splitting up of a cause of action.

That rule of the common law is based upon the fundamental principles that there must be an end of litigation, and that a party should not be twice vexed with the same cause of action. Its purpose is to prevent vexatious and oppressive litigation. We do not find in the language of the statute in question any intention on the part of the legislature to change that rule. The clause providing for an equitable distribution of the costs seems to indicate a different intention. We think the trial court correctly interpreted the statute and its judgment will be affirmed.

Affirmed.


author: Per Curiam::

text:
    William A. Read et al., Appellants, v. Central Union Telephone Company et al., Appellees. William A. Read et al., Appellees, v. Central Union Telephone Company et al., on appeal of Chicago Telephone Company, Appellant. William A. Read et al., Appellees, v. Central Union Telephone Company et al., on appeal of American Telephone & Telegraph Company, Appellant. William A. Read et al., Appellees, v. Central Union Telephone Company et al., on appeal of Central Union Telephone Company, Appellant.
    Gen. No. 23,657. Gen. No. 23,663. Gen. No. 23,664. Gen. No. 23,670.
    1. Wab, § 5

      —supreme power of Government in prosecution of. The power of the Government in the prosecution of a war, not only in the mobilization of the military forces and other immediate military necessities, but also in the mobilization and utilization of all resources of the country, is supreme.
    2. Telegraphs and telephones, § 15

      —what is power of President as to talcing possession and control of telephone systems under resolution of Congress during war. The President may, under the authority of the joint resolution of Congress of July 16, 1918, whenever he deems it necessary for the national security and defense, take possession and control of the telephone systems, and, in so doing, he is not required to get the consent of those in whose possession- the properties may be, whether they be owners, receivers or others.
    3. Was, § 5

      —right of States to interfere with exercise of war power by nation. The war power and all powers incident to it reside in the national right of self-preservation, and the means of enforcing such right are left to the discretion of the nation and cannot be interfered with at the pleasure of the States or their courts.
    4. Telegraphs and telephones, § 15

      —what is extent of right of President in taking possession and, control of telephone systems in time of war. The question whether the conditions are such as to make necessary and render expedient the action of the President in taking possession and control of the telephone systems in furtherance of the national security and defense, under authority of the joint resolution of Congress of July 16, 1918, is one which lies wholly in his discretion, and the exercise of that discretion by him through his agents is not subject to injunction or other similar action of the courts.
    5. Telegraphs and telephones, § 15

      —what does not constitute taking of telephone property without just compensation. The joint resolution of Congress of July 16, 1918, authorizing the President, whenever he deems it necessary for the national security and defense, to take possession and control of telephone systems, is not unconstitutional as amounting to the taking of property without just compensation, since the resolution by express terms amply provides for just compensation.
    6. Constitutional law, § 159

      —what does not constitute taking telephone property without due process of law. The joint resolution of Congress of July 16, 1918, authorizing the President, whenever he deems it necessary for the national security and defense, to take possession and control of the telephone systems, is not unconstitutionál as amounting to the taking of property without due process of law, since Congress is authorized by section 8, art. 1 of the Federal Constitution to make necessary laws for carrying into execution the power to declare war and to provide for the common defense and general safety.
    7. Telegraphs and telephones, § 15

      —what is nature of office and extent of powers of receivers acting for Postmaster Q-eneral after telephone property taken over as war measure. The Postmaster General, in the physical operation of a telephone system taken over by the President pursuant to the war power conferred upon the latter by the joint resolution of Congress of July 16, 1918, may act through receivers who were in possession of the property at the time it was taken over by him, and they, acting as agents of the Postmaster General, and not as receiver, may take such action, relative to operation, as he may direct, without any order of the court appointing them.
    Appeals from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied; order for writ of prohibition set aside; leave to file petition for removal of receivers and their counsel denied.
    Opinion filed February 28, 1919.
    Counsel in Gen. No. 23,657:
    Cassoday, Butler, Lamb & Foster, for appellants.
    No appearance for appellees.
    Counsel in Gen. Nos. 23,663, 23,664:
    J. P. Wilson, N. C. Sears, N. T. Guernsey and E. S. Wilson, for appellants.
    Cassoday, Butler, Lamb & Foster, for appellees.
    Counsel in Gen. No. 23,670:
    EIdgar B. Tolman, for appellant.
    Cassoday, Butler, Lamb & Foster, for appellees.

      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.

   Per Curiam::

On February 13, 1919, complainants filed a petition in this court, in connection with the above entitled appeals, praying that a writ of certiorari issue to the Superior Court of Cook county, Illinois, ordering that court to certify certain proceedings to this court and that this court review a certain order entered in such proceedings, dismissing a petition filed in that court by petitioners, and determine whether said order should not be quashed and the trial court ordered and directed to enter an order granting the prayer of said petition.

The record discloses that final decrees were entered by the Superior Court of Cook county, Illinois, July 10, 1917, in theée causes, from which decrees, appeals have beemprosecuted to this court. The abstracts and briefs have all been filed and the appeals are now pending before this court, and would have been heard on oral argument on the 3rd of the present month but ■for the unavoidable absence of counsel, which necessitated a postponement until April, next. At the time the petition now before us was filed, upon suggestion of counsel, the petitioners were given 5 days within which to file suggestions in support of the petition and the respondents 5 days thereafter to file counter suggestions. On February 17, 1919, and before any suggestions were filed by either side, petitioners filed another petition praying that, pending the hearing on the petition of February 13th, this court issue its writ of prohibition to the Superior Court of Illinois, and to the receivers and their counsel, being the respondents to the original petition, enjoining and prohibiting them from taking any action in the Circuit Court of Marion county, Indiana, or elsewhere, that would recognize the claim of Postmaster General Burleson to jurisdiction and control over the receivers or the property of the Central Union Company. Upon presentation of this petition the order prayed for was duly entered, whereupon counsel for the respondents entered a motion to vacate and set aside said order. Subsequently the entire matter was argued orally, and counsel have submitted their suggestions in support of their respective contentions.

In the petition for the writ of certiorari, the petitioners alleged that the above entitled causes are pending in this court on appeal; that on February 5, 1919, they filed a petition in the Superior Court of Cook county, Illinois, in said causes, praying that that court enter an order instructing the receivers and their counsel not to send a certain telegram, which it was proposed to send to one Union N. Bethell, Chairman of the Federal Board of Control, duly appointed by the Postmaster General of the United States, in which they proposed to say:

“We recognize the authority of the Operating Board and will co-operate with it in 'the operation of the Central Union property and in the defense of suits brought to question the validity of rates established by the Postmaster G-eneral;”

and praying further that the court instruct said receivers and their counsel to immediately take steps to preserve and protect their possession and control of the assets of said Union Company wherever located and resist, by all lawful means, any attempt on the part of anyone whate.ver to interfere with their possession and control, and further that the receivers be instructed to immediately desist from further enforcement in the State of Indiana or elsewhere of unlawful telephone rates that are in violation of the Public Utilities Laws of the States, respectively, where such intrastate rates are in effect, and the petitioners in the trial court further prayed for such other and further relief as that court might deem necessary or proper to preserve the rights of the parties as fixed in the final decrees entered by that court, and to protect the said assets and effects of the said Union Company pending the appeals from the final decrees so that the jurisdiction of the trial court and of this court over such property, assets and effects might be maintained until the rights of the parties therein are finally determined.

The petition for the writ of certiorari further alleges that upon the filing of the petition just referred to in the trial court, that court entered a rule on the respondents to answer the same; that said respondents failed to make answer to the petition, and thereafter the court entered an order dismissing said petition on its face, which petitioners contend was error.

It is further alleged that the failure to grant them the relief prayed for in said petition of February 5th deprived them of the rights secured to them by the final decrees of July 10, 1917, without due process of law and without just compensation.

The petitioners further allege that since the action of the Superior Court in dismissing the petition of February 5th, they are informed and believe that the receivers have further acquiesced in the assumed authority exercised by the Postmaster General over the property, assets and effects of the Central Union Company, and are submitting in all things to his direction, authority and control, in violation of the duties assumed by them, and are enforcing in Indiana unlawful intrastate telephone rates established by the Postmaster General, in violation of the statutes of that State, and that they are thus exposing the property of the Union Company to jeopardy because of claims that will be made against it in the way of penalties, on account of the continued violations of the statutes of that State, and that, in so acting, the receivers are disqualifying themselves to act as receivers in any negotiations or dealings with the Postmaster General, or with the American Telephone and Telegraph Company and its officials, to whom it is alleged said Postmaster General is attempting to delegate the control and domination over said Union Company and said receivers.

The petitioners, in support of their contention that the Superior Court erred in dismissing their petition, contend:

(1) That Albert S. Burleson, Postmaster General of the United States, is attempting to exercise supervision, possession, management and control over the property, assets and effects of the Union Company, now in the possession of the receivers, without any order having been entered by the Superior Court, or any other court having jurisdiction in the premises, in any way authorizing such action on his part,

(2) That the Postmaster General has no right or authority to take over the supervision, possession, control and operation of the property, assets and effects of the Union Company under the terms of the joint resolution of Congress of July 16,1918, except in furtherance of the national security and defense, and that such resolution does not authorize the President or the Postmaster General to take over the possession, control and operation of the private business of telephone companies and of their operating income, regardless of actual war uses or aids and having no relation to the national security or defense, and that there is no need, for any legitimate purposes of the government, to take possession of the property, assets and effects of the Union Company or deprive the receivers, or the courts having jurisdiction over them, of the property and assets of the Union Company.

(3) That if said resolution is construed otherwise, it must be held unconstitutional, null and void, because such action of the Postmaster General would amount to depriving the Union Company and the petitioners of their rights and property without due process of law and without just compensation, in violation of the provisions of the constitution.

(4) That the Postmaster General is attempting to put the American Telephone and Telegraph Company, Theodore N. Vail and Union N. Bethell, defendants in the above entitled causes, and the officials, employees and representatives of the American Company, in operation and control of the property of the Union Company, and to re-establish over the latter company and its property the domination and control exercised by said American Company prior to the institution of this litigation, and the entering of the decrees in said causes granting the injunctions prayed and the appointing of the receivers herein, in which decrees said domination and control were declared unlawful and permanently enjoined.

(5) That the receivers appointed by the Superior Court, purporting to act under the directions and authority of the Postmaster General, and without any order of court authorizing them so to do, are now charging and collecting, in the State of Indiana, telephone rates on intrastate telephone messages which have not been approved by the Public Service Commission of that State, in violation of the statutes of that State, which impose heavy penalties for any violation thereof, and that the estate of the Union Company now in the hands of the receivers will he liable to such penalties in large amounts for past violations of said statutes, and that additional penalties will hereafter accrue against the property of said company for future violations of said statutes.

The joint resolution of Congress of July 16, 1918, authorized and empowered the President, during the continuation of the present war, “Whenever he shall deem it necessary for the national security or defense, to supervise or to take possession and assume control of any telegraph, telephone, marine cable, or radio system or systems, or any part thereof, and to operate. the same in such manner as may be needful or desirable, * * * which supervision, possession, control, or operation shall not extend beyond the date of the proclamation by the President of the exchange of ratifications of the treaty of peace: Provided, That just compensation shall be made for such supervision, possession, control, or operation, to be determined by the President; and if the amount thereof, so determined by the President, is unsatisfactory to the person entitled to receive the same, such person shall be paid 75 per centum of the amount so determined by the President, and shall be entitled to sue the United States to recover such further sum as, added to said 75 per centum, will make up such amount as will be just compensation therefor, * * *: Provided further, That nothing in this Act shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation to taxation or the lawful police regulations of the several States, except wherein such laws, powers, or regulations may affect the transmission of Government communications, or the issue of stocks and bonds by such system or systems.”

Acting under the authority of the resolution, the President on July 22, 1918, issued a proclamation reciting the resolution, and stating further that it was by him “deemed necessary for the national security and defense to supervise and to take possession and assume control of all telegraph and telephone systems and to operate the same in such manner as may be needful or desirable.” Wherefore, the proclamation proceeded, to the effect that the President did thereby, by virtue of the powers vested in him by the resolution, and all other powers thereto him enabling, “take possession and assume control and supervision of each and every telegraph and telephone system, and every part thereof, within the jurisdiction of the United States, including all equipment thereof and appurtenances thereto whatsoever and all materials and supplies,” and directed that the supervision, possession, control and operation be exercised by the Postmaster General, and that the Postmaster General might perform such duties to such extent and in such manner as he shall determine “through the owners, managers, boards of directors, receivers, officers and employes of said telegraph and telephone systems.” Thereafter, on August 1, 1918, the Postmaster General, pursuant to the proclamation of the President, announced that he had taken possession and assumed control of all telegraph and telephone systems in the United States, and that it was his purpose “to coordinate and unify those services so that they may be operated as a national system with due regard to the interests of the public and the owners of the properties.”

It clearly appears from the joint resolution of Congress and the proclamation of the President, that the possession, control and operation of the telegraph and telephone systems were taken over by the Government as a war measure. We think it clear that the power of the Government in the prosecution of a war (not only in the mobilization of the military forces and other immediate military necessities, but also in the mobilization and utilization of all resources of the country) is supreme, and since Congress by joint resolution authorized the President, whenever he deemed it necessary for the national security and defense, to take possession and control of the telegraph and telephone systems, he may do so, and in doing so he is not required to get the consent of those in whose possession these properties may be, whether they be owners, receivers or others. It is obvious that this must be true, for if it were otherwise—if it were necessary to ask the several owners or receivers in possession of property to give their consent to the turning over of these properties—the entire purpose of the resolution might be nullified, and the successful prosecution of the war prevented. The war power and all powers incident to it reside in the nation’s right of self-preservation, and the means of enforcing such right are left to the discretion of the nation, and cannot be interfered with at the pleasure of the States or their courts. United States v. Casey, 247 Fed. 362; Pappens v. United States, 252 Fed. 55. On the question of the authority of the Postmaster General, in taking possession of commercial cables and cable companies, under the joint resolution of Congress and the proclamation of the President, it has been held in a learned opinion rendered by Judge Hand, in the case of Commercial Cable Co. v. Burleson, 255 Fed. 99, in the United States District Court, Southern District of New York, that the joint resolution of Congress and the proclamation of the President had the effect of immediately passing the possession and control of the operation of the cables to the President acting through the Postmaster General.

On the other hand, counsel for petitioners refer us to the recent opinion of Judge Kinkead in the case of State of Ohio v. Ohio State Telephone Co., in the Court of Common Pleas of Franklin county, Ohio. That case involved the legality of intrastate telephone rates inaugurated by the Postmaster General, which question is in no way involved in the pending matter. Counsel for the petitioners have also cited in support of their contention Ex parte Milligan, 4 Wall. (U. S.) 2; Johnson v. Jones, 44 Ill. 142, and a number of other cases, but in our opinion they are not in point. An examination of them discloses the fact that none of them involved the question of the power of Congress and the President to assume the possession and control of property, which is deemed necessary for the prosecution of war or to raise and support armies or use all means to enforce the power to declare war and successfully prosecute it through the mobilization of the military forces or the various national resources.

Under the resolution of Congress, the President is given the power to take possession of and control the property of telephone companies, whenever he deems such action necessary and expedient for the furtherance of the national security and defense. The question whether the conditions are such as to make such action necessary and expedient for that purpose is one which lies wholly within the discretion of the President, and the exercise of that discretion by him through his agents is not subject to injunction or other similar action of the courts. United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316.

The point urged, that if the joint resolution is held to authorize the taMng of the property in the manner in which the Postmaster General has acted, it is unconstitutional, for the reason that it amounts to the taking of property without just compensation, cannot be maintained, for the reason that the resolution by express terms amply provides for just compensation. Nor can we agree with the contention that the action of the Postmaster General amounts to the taking of property without due process of law, for the Constitution of the United States expressly authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the power to declare war, or to provide for the common defense and general welfare, which includes the power to assume possession and control of property, whenever such action is deemed necessary for the successful prosecution of war. U. S. Constitution, art. I, sec. 8.

As to the contention that in taking over the possession and control of the Union Company, the Postmaster General is attempting to put the American Company and certain officers of that company, who have been constituted his agents in the federal control of telegraph and telephone companies under the resolution, in control of the property of the Union Company, and thus re-establish over that company and its property the domination and control which was exercised prior to the institution of this litigation and which was declared to be illegal by the decrees and perpetually enjoined therein, it should be said that the parties named cannot be considered as acting as agents of the American Company, or even in their capacity as individuals, but solely as the agents of the President of the United States under the Postmaster General, in his possession and control of this property, under the powers granted to him in the congressional resolution. Whatever is done by these agents in connection with their possession and operation of this property is done by the President, through them in their capacity as agents.

Not only has the Postmaster General, in our opinion, the power and authority to take over the possession and control of the property of the Union Com pany, but it is entirely proper for him, in the physical operation of that property, to act through the receivers who were in possession of the property at the time it was taken over by him, and the receivers, in carrying on the operation of the property under the control and authority of the Postmaster General, may take all such action as he may direct, connected with its operation, without any order of the court appointing them, authorizing them so to do, for in all things done by them, in connection with the operation of the property under federal control, they are not acting as receivers but as the agents of the Postmaster General. Of course, in the fixing of the compensation to be paid by the government for the use of the property of the Union Company, the receivers, as such, must deal with the proper governmental agents.

For the reasons stated, the petition for the issuance of a writ of certiorari is denied, and it follows that the motion of the respondents to set aside the order heretofore entered, directing that a writ of prohibition issue, must be allowed, and it is so ordered.

There is a further motion pending before us in this matter which must be disposed of, namely, a motion of petitioners for leave to file a petition asking for the removal of the receivers of the Union Company and their counsel. In view of what we have already said, we feel it unnecessary to make further comment with reference to that motion, but for the reasons given, said motion is denied. •

Petition for writ of certiorari denied.

Motion to set aside order directing writ of prohibition alloiued.

Motion for leave to file petition for removal of re- ceivers and their counsel denied.


author: Mr. Presiding Justice Dever

text:
    George W. Davis, Appellee, v. Michigan Central Railroad Company, Appellant.
    Gen. No. 24,620.
    1. Master and servant, § 147

      —'nohat is duty as to providing automatic couplers under Federal Safety Appliance Act. The Federal Safety Appliance Act, relating to automatic couplers, imposes an absolute duty on railroad companies to provide couplers which will couple on impact, and performance of the duty imposed by the act cannot be evaded by proof that a railroad company has used ordinary care in the selection of couplers or in ascertaining their fitness for use.
    2. Master and servant, § 715

      —when compliance with Safety Appliance Act as to automatic couplers is question for fury. Evidence held to present a question for the jury whether a railroad company had provided couplers on cars coupling automatically on impact, in compliance with the Federal Safety Appliance Act.
    3. Master and servant, § 833

      —when admission of evidence that other safety devices in coupling cars were in use not reversible error. In an action by a railroad switchman against a railroad company for personal injuries, due to his foot being crushed between a caboose and a car while he was trying to kick a draw-bar into place so that the cars could couple, in which the issue was whether the cars would couple automatically by impact, as required by the Federal Safety Appliance Act, the admission of evidence tending to show that at the time of the accident there were in use by railway companies devices which would cause a drawbar out of alignment to drop back into alignment, was not reversible error.
    4. Master and servant, § 833—to item admission of evidence as to other instances when drawbars were out of place not reversible error. In an action by a switchman against a railroad company to recover for personal injuries, due to his foot being crushed between a car and a caboose while he was trying to kick a drawbar into place so that the cars, which ordinarily coupled on impact, would couple, the admission of evidence tending to show other instances when drawbars were out of alignment was not reversible error.
    5. Master and servant, $ 611

      —when evidence admissible as to effect on efficiency of car couplers, when drawbars were in certain position. In an action by a switchman against a railroad company to recover for personal injuries, due to his foot being crushed between a car and a caboose while he was trying to kick a drawbar into place, evidence as to the effect on efficiency of the couplers, which ordinarily coupled on impact, where the drawbars were in the same position as on the colliding cars, was admissible.
    6. Master and servant, § 147

      —necessity of lateral play in drawheads in drawbars. Some lateral play must be allowed in drawheads in drawbars used in couplers required by the Federal Safety Appliance Act to couple automatically on impact.
    7. Appeal and error, § 1467

      —when admission of improper evidence not reversible error. A judgment will not be reversed for the reason that irrelevant or incompetent evidence was admitted on the trial, where it is evident that no injury resulted therefrom to an objecting party.
    8. Evidence, § 265

      —when memorandum booh properly excluded. It is not improper to exclude a memorandum book containing measurements, where the witness has testified as to the measurements, using the memorandum book for the purpose of refreshing his memory.
    9. Appeal and error, § 1533

      —when technical error in instruction not ground for reversal. In an action by a switchman against a railroad company to recover for personal injuries, due to his foot being crushed between a car and caboose while he was trying to kick a drawbar into place, the use of the word “cannot” instead of the word “can” in an instruction that it was unlawful for a common carrier to use a car in interstate traffic not equipped with couplers which would couple automatically by impact and “which cannot be uncoupled without the necessity of men going between the ends of cars,” held not reversible error, where the only issue was the alleged failure of the couplers to couple on impact, and other instructions told the jury that there could be no recovery unless the evidence showed that the couplers would not couple on impact.
    10. ' Damages, § 133

      —when verdict not excessive. A verdict for $5,000 for the loss of the second, third and fourth toes of the left foot of a railroad switchman, 31 years of age, held not excessive.
    McSubely, X, dissenting.
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed March 10, 1919.
    Rehearing denied March 24, 1919.

      Winston, Strawn & Shaw, for appellant; J. Sidney Condit, of counsel.
    Charles C. Spencer, for appellee.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

Plaintiff, George W. Davis, brought suit in the City Court of Chicago Heights against the defendant, Michigan Central Railroad Company.

The jury which tried the case returned a verdict in plaintiff’s favor for the sum of $7,000. The court required a remittitur of $2,000, and judgment was entered against the defendant for the sum of $5,000. The defendant brings the case by appeal to this court.

The case was tried on the second and third counts of a declaration consisting of three counts. These counts alleged in substance that the defendant, in violation of the Safety Appliance Act, hauled and permitted to be hauled and used on its line in interstate traffic certain cars which would not couple automatically by impact, and that it negligently and in violation of said law moved one of said cars while the couplers, drawbars and other coupling apparatus of said car were out of order, improperly adjusted and with the drawbars thereof turned to one side so that the car would not couple automatically by impact and so that .it was necessary for the plaintiff, in the course of his employment, to go between the cars to make a coupling; that the injury to plaintiff resulted from this wrongful conduct of the defendant.

The evidence discloses that plaintiff, 31 years old, was an experienced switchman and had been in the employ of the defendant for about 5 years before the date of the accident; that it was raining on the day of the accident and he had on rubber boots and a rubber coat. He was the “rear man” of a switching crew, which, on the day in question, had brought cars from Argo, Illinois, to the yards of the Chicago Junction Railway. When the train of cars reached the yards near Loomis street the engine and caboose were cut off from the other cars and the caboose “kicked” back onto the main line, which ran north and south. The caboose stopped on the track a short distance south of the 47th street viaduct; the engine then went back, coupled onto other cars on another track, moved them over a switch and started to move them so that a refrigerator car at the north end of the line of cars could be coupled to the caboose. Plaintiff went to the caboose to make the coupling. The plaintiff testified that as the refrigerator car approached the caboose he saw that the drawbar on the refrigerator car was pointed towards him as he stood west of the couplers; that the drawbar on the caboose was directed slightly towards the east; that in such position it was evident to plaintiff that the cars would not couple on impact; that in order to couple them plaintiff was required to go between their ends and move the drawbar of the refrigerator car so that it would point directly north; that in so doing plaintiff took hold of the grab iron on the refrigerator car with-his right hand and put his left foot against the drawbar and pushed it over towards “center”; that in so doing his foot was caught and crushed between the cars.

Plaintiff testified that no devices or apparatus had been provided for moving the drawbar back to its center and that there was no way of doing this except by kicking or pushing it over with his foot or hand.

It is not disputed that at the time of the accident the defendant corporation was engaged in interstate commerce; it is urged by the defendant that the Safe-' ty Appliance Act relating to automatic couplers imposes an absolute duty on railway companies to provide couplers which will couple on impact, and that the performance of the duty imposed by the act cannot be evaded by proof that a railway company has used ordinary care in the selection of couplers or in ascerfanning from time to time their fitness for nse. Minneapolis & St. L. R. Co. v. Gotschall, 244 U. S. 66 [14 N. C. C. A. 865]; Louisville & N. R. Co. v. Layton, 243 U. S. 617.

Tn the ease of Chicago, B. & Q. Ry. Co. v. United States, 220 U. S. 559, the court discussed at length the duty imposed by the act upon railway companies, and it held that “the obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it.”

The cases cited by counsel for defendant amply support their contention, and they urge that as a necessary consequence of tbe holdings in these cases the trial court erred in admitting certain testimony of witnesses for plaintiff.

Witnesses for defendant testified that just after the accident they examined the couplers on the two cars and found that they were coupled and that so far as they noticed were in good order and repair. It became, therefore, a question of fact for the jury whether the defendant had provided couplers on the cars in question which complied with the requirements of the federal act.

In Atlantic City R. Co. v. Parker, 242 U. S. 58, the court said:

“If there was evidence that the railroad failed to furnish such ‘ couplers coupling automatically by impact’ as the statute requires (Johnson v. Southern Pac. Co., 196 U. S. 1, 18, 19), nothing else needs to be considered. We are of opinion that there was enough evidence to go to the jury upon that point. No doubt there are arguments that the jury should have decided the other way. Some lateral play must be allowed to drawheads, and further, the car was on a curve, which, of course, would tend to throw the coupler out of line. But the jury were warranted in finding that the curve was so slight as not to affect the case, and in regarding the track as, for this purpose, a straight line. If couplers failed to couple automatically upon a straight track, it at least may be said that a jury would be warranted in finding that a lateral play so great as to prevent coupling was not needed, and that, in the absence of any explanation believed by them, the failure indicated that the railroad had not fully complied with the law.”

We think it apparent that the issue in the case with reference to the couplers was simply whether the couplers in question would couple automatically by impact, and that the trial court was not authorized to admit any evidence tending to show the condition of other couplers used by the defendant and others, or the practice or custom of the defendant with relation thereto.

The plaintiff testified that he knew there was some play in the drawbar on the refrigerator car, but that he did not know how much; that the drawbar on the caboose was turned towards the east and that the draw-bar on the refrigerator car, as it approached the caboose was “clear over to the west”; that he saw that “they were not going to make” and that he knew “it would not couple.” The question which the jury was called upon to determine was whether the couplers on the car in question would couple automatically on impact. The plaintiff was in a position to know of the extent of the play of the drawbars, and whether his judgment was sound, or whether his relation of circumstances attending the accident was truthful, were questions for the jury.

While we think the court erred in permitting the plaintiff and another witness to testify that at the time of the accident there were in use by railway companies devices which would cause a drawbar out of alignment to drop back into alignment, we do not think that the error was sufficiently serious to justify a reversal of the judgment. This may be said also of testimony admitted which tended to show other instances than the one in question when drawbars were out of alignment. Certain witnesses, however, testified that in their opinion the couplers on the ears in question would not have coupled with the drawbar in the position testified to by the plaintiff, and it was proper for these witnesses to testify as to what they had noticed or had been taught by their experience as to the efficiency of coupling devices when the drawbars were in certain positions. In determining the quality of the couplers in question, it was permissible to show the effect on the efficiency of the couplers with drawbars in the positions of those in question at the time plaintiff sustained his injuries.

The evidence tends to prove that some play in the drawbars was required so as to permit the operation of trains of cars on curves. This question is discussed in San Antonio & A. P. Ry. Co. v. Wagner, 241 U. S. 476, wherein the court said, in a case where a defendant had attempted to set up that there was no kind of automatic couplers constructed or that could be constructed which would couple automatically at all times without adjustment because of lateral play necessary to enable coupled cars to round curves, that:

“The fact that the coupling pin on the box car failed to drop as it should have done at the first impact, and required manipulation in preparation for the second impact, together with the fact that the drawbar on the engine was so far out of line as to require adjustment in preparation for the second impact, and the opinion evidence, being sufficient to sustain a finding that the equipment was defective. The jury could reasonably find that the misalignment of the drawbar was greater than required to permit the rounding of curves, or, if not, that an adjusting lever should have been provided upon the engine as upon the car, and that there was none upon the engine.”

The opinion evidence objected to in the case at bar was admissible in so far as it tended to aid the jury in determining whether the lateral play, if there was such, in the drawbars in question was of such character as would unnecessarily interfere in the effective operation of the couplers as required by the act, and it was not improper to permit these witnesses to testify as to what their experience had been with reference to the subject about which they undertook to express an expert opinion.

As stated in the Parker case, supra, it is evident that “some lateral play must be allowed to draw-heads." Otherwise stated, it became the province of the jury to determine whether the defendant had in fact failed to comply with the Safety Appliance Act as charged in the declaration, and it was competent for both defendant and plaintiff to show by proper evidence that the drawbars and couplers in question were or were not in proper alignment and so constructed and adjusted as that the couplers would couple automatically by impact. The duty to so couple is imposed by the federal law. This fact, however, did not authorize the court, as stated, to admit evidence tending to show the character of other devices used by defendant or other railway companies at different times and upon cars other than the ones in question. It is our opinion that the plaintiff proved more than was necessary to make out his case.

A judgment will not be reversed for the reason that irrelevant or incompetent evidence was admitted on the trial where it is evident that no injury resulted therefrom to an objecting party. Ringering v. Cleveland, C., C. & St. L. Ry. Co., 161 Ill. App. 43, 46.

As we understand the issue, it was not contended on the trial, nor is it urged here, that the defendant’s liability depends upon any other circumstances than its failure to comply with the federal law. If this be so, then it was immaterial whether other devices or safer appliances could have been provided for the cars in question, but, assuming this, it is difficult to see how the admission of such evidence could have prejudiced the defendant. Under the decided cases the plaintiff was only called upon to prove the failure of the particular couplers in question to couple automatically by impact, and when he undertook to show by his evidence that other devices were obtainable which would have complied with the federal law, he assumed a burden that the law did not impose upon him.

The court did not err in excluding the memorandum book kept by a witness for defendant. The witness was permitted to testify to certain measurements, and in so doing he was allowed to use the memoranda entered in the book to refresh his recollection concerning the matters as to which he testified.

There was technical error in the giving of an instruction at the request of plaintiff which told the jury that it was unlawful for any common carrier to use a car in interstate traffic not equipped with couplers which would couple automatically by impact and “which cannot be uncoupled without the necessity of men going between the ends of cars.” It is conceded that the word “cannot” in the instruction should be “can.” As given, the instruction told the jury that plaintiff would be liable if the couplers in question could be uncoupled without the necessity of men going between the cars. It is evident that this was a typographical error. There was no claim made at the trial, nor is there here, of any injury resulting from the failure of the cars to uncouple. The issue at the trial was the alleged failure of the couplers to couple on impact, and the evidence of certain witnesses shows that the cars were properly coupled immediately after the accident occurred. Undear the circumstances, this error could have worked no injury to the defendant.

Other instructions definitely told the jury that there could be no recovery unless the evidence showed that the couplers would not couple by impact. Colesar v. Star Coal Co., 160 Ill. App. 251.

The verdict of the jury and judgment of the trial court in favor of the plaintiff is large. There is evideuce in the record which tends to show that as a result of the accident the plaintiff lost the second, third and fourth toes of his left foot; that his injury is in some degree permanent and that he has suffered, and at the present time does suffer, from pain in and limitation of the use of his left foot. We do not think, however, that the verdict of the jury is so large as to indicate that it was moved by passion and prejudice. Wagner v. Chicago, R. I. & P. Ry. Co., 200 Ill. App. 305; Davidson v. Montgomery Ward & Co., 171 Ill. App. 355.

Other errors are complained of by the defendant as to which we think no reversible error was committed.

The judgment of the trial court will be affirmed.

Affirmed.

Me. Justice McSueely, dissenting. I think the amount of the judgment is excessive.


text:
    Della Glover, Appellee, v. Samuel Insull, Receiver, Appellant.
    Gen. No. 24,647.
    1. Receivers—what is effect of possession of receiver on liability of carrier for injuries to passenger. The possession of elevated railroad property by a receiver is not the possession of the railroad company, and the latter is not liable for negligent injuries to a passenger attempting to board a car.
    2. Receivers, § 42

      —when action against receiver for personal injuries barred. An action against the receiver of a railroad for negligent injuries to a passenger is barred by the 2-Year Statute of Limitations, where the receiver was in possession of the property at the time of the accident, and, while an action against the railroad company was brought within 2 years after the occurrence of the accident, the receiver was not made a party until 3 years after the accident.

      Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and judgment here.
    Opinion filed March 10, 1919.
    Carroll H. Jones and William: A. Morrow, for appellant.
    William Smith, for appellee.

      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.

Plaintiff, Della Glover, brought suit in the Municipal Court of Chicago on November 10, 1916, against the Chicago and Oak Park Elevated Railroad Company to recover damages for injuries alleged to have been received by her on the 11th day of November, 1914, while she was attempting to get on board a car operated by defendant company.

The statement of claim filed by plaintiff alleged that on the 11th day of November, 1914, the Chicago and Oak Park Elevated Railroad Company was a corporation and was then in possession and control of certain*, railroad cars, wires and tracks running from Chicago to Oak Park, and that it was “moving and operating certain electric cars for the carriage of passengers as a common carrier for hire upon said tracks, ’ ’ etc.

On November 20, 1916, the defendant company filed its appearance and later an affidavit of merits which set out that defendant was not in possession or control of or operating the railroad cars, etc., mentioned in the statement of claim.

On February 11, 1918, more than 3 years after the cause of action arose and about 15 months after the action was commenced, Samuel Insull was made party defendant to the action, as receiver of the Chicago and Oak Park Elevated Railroad Company. Summons was issued and served upon him and an amended statement of claim was filed which charged that:

“On to-wit: the 11th day of November, 1914, the Chicago and Oak Park Elevated Company and Samuel Insull, its receiver, was a corporation of the State of Illinois, and was then and there jointly in possession, in control and operating certain railroad cars, wires, running from Chicago to Oak Park avenue in the County of Cook and State of Illinois, and was operating the said cars as a common carrier of passengers for hire.”

'Samuel Insull, as receiver, etc., filed his appearance in the cause on February 25, 1918. He later filed an affidavit of merits which alleged, among other things, that the cause of action set out in the amended statement of claim did not arise within 2 years next preceding the commencement of plaintiff’s suit against the defendant.

On the trial of the cause it was admitted that Samuel Insull was in control of the railroad company as its receiver and had been operating the railroad since November 13, 1911. The case proceeded to trial before a jury on March 27, 1918, but on motion of plaintiff a juror was withdrawn and the jury discharged. Thereafter the cause was submitted to the court for trial without a jury. On May 1, 1918, the defendant Chicago and Oak Park Elevated Railroad Company was, on motion of plaintiff, dismissed out of the case and on the same day the court found the issues against the defendant Samuel Insull, receiver, and assessed the plaintiff’s damages at the sum of $125. Judgment was entered for this amount and the defendant Samuel Insull, receiver, by this appeal seeks to reverse this judgment.

The appeal by which the case is brought to this court is undefended. It is urged on behalf of the defendant that the cause of action accrued against the receiver on the date the injuries were sustained and that, this being so, the statute of limitations has run against the action. As stated above, the receiver was in full possession of and operating the property of the defendant on the day the accident occurred, November 11, 1914. The tort then, if a tort was committed, was that of the receiver.

In McNulta v. Lockridge, 137 Ill. 270, at page 279, the Supreme Court said:

“The corporation itself, haying no control over either the receiver or his servants, is not, in the absence of an absolute liability imposed upon the company by statute, responsible for the negligence or torts of the employees of the receiver, and no suit against it for damages occasioned thereby can be maintained. These rules of law are well settled, and have been held in many adjudicated cases, and are laid down in the textbooks.”

In Henning v. Sampsell, 236 Ill. 375, it is said:

“The possession of a receiver is not the possession of the corporation owning the franchise and tracks, but is antagonistic to it. The owner cannot control the receiver or his employees, and is not liable for injuries inflicted by him or them.” Eckels v. Farley, 131 Ill. App. 557.

The decisions relied upon by counsel for appellees fully sustain their argument that the possession of the receiver at the time the accident occurred was not in any sense, neither in law nor otherwise, the possession of the railroad company. The company was not liable for any injuries which might have resulted from the negligent acts of commission or omission of the receiver or his employees, and for such acts suit could be maintained only against the receiver. We think it follows from this that the commencement of the suit against the company was not the beginning of an action against the receiver. On the face of the record it appears that the action was originally begun against a party not in control or possession of the property in question and one not in any legal sense liable to the plaintiff for the injuries which it is alWed she received. The service of summons in a suit a§’aust such a party cannot be held to be service upon a payy fact legally liable to the plaintiff for the injury.

In the case of Proctor v. Wells Bros. Co. of New York, 262 Ill. 77, the Supreme Court had under con-, sideration a case involving principles which are applicable here; and although the precise question presented by the record before us was not before the Supreme Court in that case, the decision there is essentially controlling in the case at bar. In the Proctor case, supra, suit was originally brought against Wells Bros. Company. This suit was dismissed 18 months after it was begun, and the Supreme Court held that “the issuance of a summons was the commencement of a suit against a newly-named defendant.” In the case at bar it does not appear that the plaintiff was mistaken as to the identity of the person against whom she sought to maintain her action. The receiver was in possession of the property at the time the accident occurred and also when suit was begun. It is not a case of mere misnomer, where a person sued might have recourse to a plea in abatement. The receiver was not legally bound to respond to the summons served upon the railroad company as the suit was begun, not against him but another and a distinctly different defendant.

“The cases cited by plaintiff in error go not further than this. None of them hold that the commencement of an action against one person or corporation upon a cause of action against another person or corporation will arrest the running of the statute of limitations against the latter, and the law is that it will not.” Proctor v. Wells Bros. Co. of New York, supra.

More than 2 years having elapsed between the date when the plaintiff alleges she received the injuries she complains of and the bringing of the action against the receiver, the finding and judgment of the trial court should have been in his favor. Handtoffski v. Chicago Consol. Traction Co., 274 Ill. 282.

In Memphis & C. R. Co. v. Hoechner, 67 Fed. 45, it was held that where an action for personal injuxes is brought against a railroad company whose /r°Pert-y was in the exclusive control of receivers, who were not made parties until a year later, the action was barred against the receivers where it appeared that actions for personal injuries must be brought within one year after the right of action accrued.

The judgment of the Municipal Court is reversed and judgment of nil capiat entered in this court.

Reversed and judgment here.


author: Mr. Justice Holdom

text:
    Henry C. Arens, Appellant, v. The Baltimore and Ohio Chicago Terminal Railroad Company, Appellee.
    Gen. No. 24,520.
    1. Commerce, § 4

      —what constitutes interstate within Federal Employers’ Liability Act. A brakeman employed by a railway terminal company, while engaged in coupling one of its engines to an observation car which was being used in interstate commerce, and was owned by a carrier, engaged in such commerce, which was a lessee of the terminal company, was engaged in interstate commerce so as to bring a suit by him against the terminal company, for injuries received while so engaged, within the provisions of the Federal Employers’ Liability Act.
    2. Master and servant, § 715

      —coupling of couplers automatically on impact as jury question. Whether couplers upon cars were automatic and would couple on impact so as to be in compliance with the Federal Safety Appliance Act, was a question for the jury.
    3. Master and servant, § 302a

      —when doctrine of assumed rislc not invocable. The doctrine of assumed risk is not invocable in an action within the Federal Safety Appliance Act.
    4. Master and servant, § 739

      —when effect of attempt to couple cars on curved trach is question for jury. The effect of a brakeman’s attempting to couple cars on a curved track upon his right to recover for injuries received in making a coupling is for the jury, in a case where the doctrine of assumed risk may be invoked.
    5. Master and servant, § 98

      —when common law of State applies to negligence in action under Federal Employers’ Liability

      Act. As the Federal Employers’ Liability Act does not define the character or degree of negligence necessary to a recovery, and as there is no federal common law, the common law of the State will prevail on those matters, in an action under that act.
    6. Master and servant, § 98

      —what is sufficient as common-law count charging negligence in action under Federal Employers’ Liability Act. In an action by a brakeman for injuries received while attempting to couple cars, a count, based upon the Federal Employers’ Liability Act, charging failure to furnish plaintiff with a safe place to work, that defendant’s foreman and conductor, knowing the danger of attempting to make a coupling on a curved track, failed to notify plaintiff of such danger though it was unknown to him, was sufficient as a common-law count under the law of this State.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed March 10, 1919.
    John G-. Riordan, for appellant.
    James M. 'Sheean and Charles D. Clark, 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.

At the conclusion of plaintiff’s case the trial judge, on the motion of defendant, directed a verdict in its favor, upon which verdict the judgment appealed from was entered.

The action involved the question of interstate commerce, Federal Employers’ Liability Act and the violation of the Federal Safety Appliance Act regarding couplers which shall couple automatically by impact.

We have concluded that the verdict should not have been instructed, but that the case should have gone to the jury on the first, sixth and seventh counts of the declaration. While we do not intend to pass upon the probative force of the evidence, we do hold that plaintiff by his proofs, as they were at the time of the motion for an instructed verdict, made out a prima facie case which entitled him in the absence of countervailing proof to have the jury pass upon and determine by its verdict the liability of defendant.

The defendant operated the railroad terminal of which the Baltimore and Ohio Railroad Company was, with others, a lessee.- Both the lessor and lessee companies were included as defendants, but upon the trial the railroad company was eliminated on the motion of plaintiff upon defendant admitting that plaintiff was in its employ as a switchman at the time of suffering the injuries for which compensation was demanded in this suit.

The accident happened to plaintiff while he was attempting to couple defendant’s engine to an observation car owned by the Baltimore & Ohio Railroad Company. The coupling was attempted to be made on a curved track. Plaintiff rode on the front footboard of the engine to a switching lead, where he got off, relined the switch and signaled the engineer to go backwards towards the observation car which was standing on the curve. The tracks began to curve from the switch point, which curve extended along the tracks about two and one-half car lengths. Plaintiff stood on the inside of the curve in position to give a signal to the engineer whenever he wanted him to change speed or stop. When about 4 to 6 feet from the car he testified he saw that the coupling was not going to make and he reached over and shoved the drawbar over as far as possible, and that after he got within about 3 feet of the car, seeing that the coupling was not going to connect, he edged out on the footboard and attempted to get off of it, and in so attempting was caught on the left side with the cut-off lever, which held him fast. The couplers did not come together. The drawbars passed each other and the coupling was not made.

The first question to be disposed of is, whether plaintiff and defendant were at the time of the accident engaged in interstate commerce so as to make the Safety Appliance Act invocable.

All of the three counts, supra, proceed upon the theory that plaintiff and defendant were at the time of the accident engaged in interstate commerce.

It is not contradicted that the observation car was engaged in interstate commerce and that the Baltimore & Ohio Railroad Company, who owned it, was an interstate commerce railroad. As defendant’s lessee was engaged in interstate commerce with the observation car involved in the accident, defendant, its lessor, was, in the eye of the law, likewise so engaged. In other words, the interstate commerce attribute of defendant’s lessee was in these circumstances imputable to defendant.

In North Carolina R. Co. v. Zachary, 232 U. S. 248 [9 N. C. C. A. 109], it was held that a railroad company leasing its intrastate line to an interstate railroad company created the latter its agent and it became a common carrier engaged in interstate commerce ; and that an employee in preparing an engine for a trip to move freight in interstate commerce prior to the actual coupling up of the interstate cars was, in so doing, engaged in interstate commerce within the meaning of the Employers’ Liability Act.

The facts and reasoning in Johnson v. Southern Pac. Co., 196 U. S. 1, are persuasive both on fact and principle, and are analogous in many of their aspects to the instant case.

It is in evidence that the observation car being switched was intended to be sent on a return journey to Jersey City, New Jersey. Such being the object of the switching movement, that car, as a matter of law, must be held to have been at the time of the accident engaged in interstate commerce. Chicago Junction Ry. Co. v. Industrial Board of Illinois, 277 Ill. 512; Chicago & E. R. Co. v. Meech, 163 Ill. 305; Anderson v. West Chicago St. Ry. Co., 200 Ill. 329.

The next question to be disposed of involves the erroneous action of the court in instructing a verdict for the defendant.

Whether the Federal Safety Appliance Acts were »complied with, and whether the couplers on the car and engine were at the time of the accident in compliance with the Federal Safety Appliance Acts, were automatic couplers and would couple automatically by impact, were questions of fact to be determined by the jury; likewise, what effect plaintiff’s attempt to couple the engine to the observation car on a curved track might have upon his right to recover under the doctrine of assumed risk if invocable, which it certainly would not be if the case comes within the Safety Appliance Acts; but, if it were, it would be for the jury to determine.

It was not the province of the trial court to assume that the couplings complied with the Safety Appliance Acts, or that plaintiff assumed the risk of attempting to couple the engine to the car on a curved track. These were questions of fact for the jury and not of law for the court.

In San Antonio & A. P. Ry. Co. v. Wagner, 241 U. S. 476, it was held that the failure at any time of a coupler to couple automatically by impact sustains a charge of negligence. And as said in Taggart v. Republic Iron & Steel Co., 141 Fed. 910: “A car with an automatic coupler that will not work is to all intents and purposes a car without an automatic coupler.” There are many other cases in the State and United States Supreme Courts to a like effect.

A jury might not impute negligence to plaintiff in attempting to make the coupling as he did, for, as said in Devine v. Chicago & C. River R. Co., 168 Ill. App. 450: '‘ The deceased however was not responsible for the curve, nor for the use of such car thereon nor for the coupler. If by reason of the curve or any other cause the couplers would not couple on that track, and it became necessary for the deceased to go between the cars, then the statutes in question were violated.” This logic may he extended and applied to the facts in the instant case. Luken v. Lake Shore & M. S. Ry. Co., 154 Ill. App. 550, affirmed in 248 Ill. 377.

In the Luken case, supra, we said, referring to both the Federal and State Safety Appliance Acts:

“These statutes make the risk that of the common carrier, and both statutes in effect abolish the common-law doctrine of the assumption of risk and contributory negligence in cases where the statutes may be invoked.”

The sixth count is based upon the Federal Employers’ Liability Act and charges the failure of defendant to furnish plaintiff with a safe place in which to work, that defendant’s foreman or conductor failed to notify plaintiff of the dangers involved in attempting to couple the engine to the car on a curved track, which danger was known to the foreman but not to plaintiff, and that such failure to so notify plaintiff of these lurking dangers was negligence under the act.

As the Federal Employers’ Liability Act does not define the character or degree of negligence necessary to a recovery, the common-law rule prevails. There being no federal common law, the common law of the State is the law of the case. In Helm v. Cincinnati, N. O. & T. P. Ry. Co., 156 Ky. 240, it is said:

“If the action is based simply on negligence without any definition or limitation of that term as known and applied under the common law, then it is a familiar rule of construction that the term is to be given its ordinary significance as fixed by the common law. * * * The act of Congress does not undertake to define negligence, and in no way limits the application of the common-law rule on that subject; and, since there is no federal common law, it is the common law of the State where the accident occurred to which we must look in determining whether the acts complained of amount to negligence.”

The sixth count was sufficient as a common-law count under the law of this State to permit the case to go to the jury thereunder, if there was evidence to support its material averments and a charge of negligence.

For the reasons indicated, the judgment of the Superior Court is reversed and the cause remanded for a new trial in accordance with the views herein expressed.

Reversed and remanded.


text:
    Anna Mayer, Appellee, v. L. B. Miller and Joseph Miller, trading as Miller’s Buena Fireproof Warehouse, Appellants.
    Gen. No. 24,586.
    1. Appeal and erbob, § 1745

      —when judgment affirmed because of improper brief. The Appellate Court would be justified in penalizing an appellant, for a gross violation by his attorney of rule 19 of the court by inserting pages of the testimony in the brief in the form of questions and answers, by affirming the judgment.
    2. Warehousemen, § 15

      —when warehouseman guilty of conversion in delivering goods to officer. A warehouse company which surrenders household goods belonging to a wife, to whom and in whose name the receipt therefor was given, to a bailiff on an attachment against the husband, without protest and without informing the bailiff that the property belonged to the wife, was guilty of conversion.
    3. Evidence, § 372

      —when witness competent to testify as to value of household goods. A housekeeper who has bought household goods is competent to testify as to the value of such goods, the probative value of her testimony being for the jury.
    4. Warehousemen, § 15

      —what is measure of damages for conversion of household goods. In an action for the conversion of household goods, the measure of damages is their value at the time of conversion, with legal interest.
    5. Warehousemen, § 15

      —when trover lies against warehouseman. An action of trover lies against a warehouseman who delivers goods to a wrong person.

      6. Tboveb and conversion, § 31

      —when demand, unnecessary. A demand upon a warehouseman for goods alleged to have been converted is unnecessary when the warehouseman has put compliance with such demand beyond its power.
    7. Appeal and ebrob, § 1533

      —failure to marie instruction as harmless error. Failure in a civil action to mark an instruction “Given,” while irregular, is not sufficient ground for reversal.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 10, 1919.
    Plotke & Kaufman, for appellants.
    Iles, O’Connor, Bberhardt & Kesler, 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, gad Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal by defendants from a judgment against them for $1,003 in favor of plaintiff in an action in trover. Plaintiff suggests that the -judgment be affirmed for the violation by defendants of rule 19 of this court, which rule is grossly violated by the insertion in the brief of page after page of testimony in the form of questions and answers. We would be justified in penalizing defendants by affirming the judgment for the infraction by their counsel of this rule.

Plaintiff stored certain household goods in the warehouse of defendants and took their receipt therefor in the usual form. Notwithstanding the property was Anna Mayer’s, the plaintiff, defendants on the 30th day of April, 1914, allowed a bailiff of the Municipal Court of Chicago to levy upon the property under an attachment writ in favor of Lucius J. Malmin v. Carl E. Mayer, the defendant in the attachment suit being the husband of plaintiff in this suit. Subsequently the property was sold in the attachment proceeding and the same lost to plaintiff.

The property was surrendered to the bailiff on the attachment writ without any protest on the part of defendants and without informing the bailiff that the property was the property of plaintiff and not of Carl H. Mayer. While there was some dispute regarding defendants’ knowledge of the ownership of the furniture stored, we are satisfied that the jury might reasonably find from the evidence that the property was that of plaintiff and that the receipt therefor was given to her and was in fact in her name.

Defendants argue for reversal the failure of plaintiff to prove the proper measure of damages, failure of plaintiff to demand the property of defendants before suit, that there was no conversion by defendants, and errors in rulings upon instructions.

Plaintiff, testifying as to the value of the property, swore that she was a housekeeper and knew the value of property of the nature of that in controversy stored with defendants, and, so far as her testimony went, confined the same to the market value of the property as of the time of its conversion by delivery by defendants to the Municipal Court bailiff. The plaintiff qualified as a witness as to values, and her testimony was confined to the value of the property at the time of its conversion. A housekeeper who has bought household goods is competent to testify as to the value of such property. The question as to the probative force of her testimony was for the jury to determine. The measure of damages is the value of the property at the time of conversion with legal interest. Janeway v. Burton, 201 Ill. 78; Burns v. Shoemaker, 172 Ill. App. 290.

There was a conversion of the property when defendants voluntarily parted with the same. An action of trover lies against a warehouseman who delivers goods to the wrong person. Brink’s Chicago City Exp. Co. v. Hendricks, 104 Ill. App. 154.

As defendants had put it out of their power to comply with any demand, if one had been made, a demand was unnecessary to enable plaintiff to maintain her action in trover for the goods. Freehill v. Hueni, 103 Ill. App. 118.

Defendants complain of the giving of the first instruction because, as it is argued, the instruction, which was an impeaching instruction, required corroboration by more than one witness, or by all the circumstances or facts as shown by the evidence. It is . sufficient to say that the instruction is not susceptible of this interpretation.

Another instruction is objected to because it was not marked “Given.” While this was an irregularity, it is not of itself sufficient to call for a reversal. The reasoning in People v. Bopp, 279 Ill. 184, which was a criminal case, is without controlling force in this case, which is civil.

The instruction complained about regarding the liability of a warehouseman, in circumstances akin to those in the case at bar, correctly stated the legal principle involved.

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

Affirmed.