text:
    George Adler, Defendant in Error, v. White City Construction Company, Plaintiff in Error.
    Gen. No. 14,374.

      Toets—when private corporation not liable for acts of special policeman. Illegal acts by a special police officer consisting of an assault, etc., will not be legally attributed to. a private corporation paying the salary of such officer where it does not appear that such officer was employed in any other capacity than as a policeman, or that such corporation had or exercised any control oyer him as a policeman or otherwise, or that such officer was charged with or had ever performed while in the service of such corporation duties other than those pertaining to the office of a policeman, or that in doing what he did he. was enforcing any regulation or by-law of such corporation or any order, of any of its officers or agents; it appearing that the illegal acts complained of were committed without the knowledge or direction of any officer or agent of such corporation.
    Tort. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed February 16, 1909.
    Rehearing denied March 12, 1909.
    Daniel W. Scanlan, for defendant in error; Charles S. Frank, of counsel.
    Felsenthal, Foreman & Beckwith, for plaintiff in error.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review a judgment for $1000 recovered by defendant in error against plaintiff in error in the Municipal Court in an action of the fourth class, in tort, for an assault and battery committed upon him by Carr and Griebenow.

The only question necessary to decide is, whether from the facts and circumstances shown by the evidence, the jury might properly find the defendant company responsible for the acts of Carr and Griebenow.

The defendant in the summer of 1906 had and maintained, in Chicago, an amusement park known as the White City. It granted to the Sherman House Hotel Company a concession to sell drinks in an open space in said park called the plaza. Plaintiff was employed by said Hotel Company as a waiter. A quarrel arose between plaintiff and Fenton a barkeeper and Wylie, the head waiter of the Hotel Company. Wylife discharged plaintiff from the service of the Hotel Company and called McCarthy and told him to take plaintiff, “out of here.” The ordinances of the city of Chicago provide that the general superintendent of police of the city: “shall have power on the application of any person or persons showing the necessity therefor, to appoint and swear in any additional number of special patrolmen to do special duty at any fixed place within the city, at the charge and expense of the person or persons by whom the application is made, and shall keep a correct list of all persons so appointed. He shall issue a special certificate of appointment to each of said special patrolmen and shall, upon receiving a deposit sufficient to cover the cost thereof, provide them with suitable badges, which shall be worn by them while on duty and be returned to said.general superintendent upon the termination of their appointment.

“Persons so appointed shall conform to and be subject to all the rules and regulations governing the police force of the city, and to such special rules and regulations as the general superintendent may make concerning such police patrolmen. They shall possess all the powers, privileges and duties of the regular police patrolmen at the places for which they are respectively appointed, and may be removed or discharged from service at any time by the superintendent without assigning any cause therefor.”

McCarthy, Griebenow and Carr were appointed and sworn in as special patrolmen to do duty at the White City during the summer of 1906, by the general Superintendent of police of Chicago. It was admitted hy the defendant at the trial that they were so appointed at the request of the defendant, “to do special police duty at the White City for the season of 1906 and were acting as such special police officers on June 9, 1906, (the day of the assault) at the White City.” They, were paid by the defendant and Griebenow was designated Chief of the White City police by the general manager of the defendant.

McCarthy took plaintiff to a room near the 64th street exit from the park, used as the headquarters of the White City police, where he was kept some time. Griebenow then went to the room where plaintiff was, and was told by McCarthy the plaintiff had been discharged and that Wylie, who had charge of the plaza, wanted him removed, 1 out of there. ’ ’ Griebenow told plaintiff that he had been discharged, that he had better go out of the park through the 64th street exit. When plaintiff went to work he left his street coat and hat in a check room and put on a waiter’s jacket and vest. He told Griebenow that he would not go out until he got his clothes; that his clothes were in the check room, and Griebenow directed Carr to take him out of the park, through said exit, and take him by way of South Park avenue to the check room, get his clothes and see that he left the park. The testimony for the plaintiff tended to prove that Griebenow then struck plaintiff; that Carr took him out of the gate and on the way to the check room struck and severely injured him.

In the cases cited and relied on by the defendant in error it appeared that the servant, for whose wrongful act the defendant was held liable, was employed by the defendant in a dual capacity. In Ilinois Steel Company v. Novak, 84 Ill. App. 641, he was sworn in as a special policeman but he “reported for duty to the foreman of the defendant and acted in pursuance of instructions received from them.” In Dickson v. Waldron, 135 Ind. 507, Kiley, who made the assault on the plaintiff, was the head janitor and a doorkeeper of the theater of the defendants. He was appointed a special policeman, but was not relieved of any of his former duties in the theatre after such appointment. Plaintiff became engaged in a quarrel with defendant’s ticket seller, claiming that he had not received the proper change on a purchase of tickets, and the ticket seller ordered Kiley to arrest plaintiff and Kiley struck him.

In Brill v. Eddy, 115 Mo. 596, McMahan was employed by the defendant as a watchman and was appointed a police officer. In the opinion it was said, p. 605: “McMahan was the paid servant of defendants and as such charged with the performance of other duties than those pertaining to the office of a policeman. At the time of the accident he was enforcing the rules and regulations prescribed by the defendants. In attempting to remove the boy from the car he was not doing, or intending to do, any act devolving on him as an officer of the law, and the fact that he had been appointed a special policeman has nothing whatever to do with this case.”

In this record there is no evidence tending to show that Griebenow and Carr were employed by the defendant in any other capacity than as policeman, or that the defendant had or exercised any control over them as policemen or otherwise, or that they were charged with or had ever performed, while in the service of defendant, any duties other than those appertaining to the office of a policeman, or that in doing what they did, they were enforcing or attempting to enforce any regulation or by-law of the defendant, or any order of any officer or agent of the defendant. If Wylie’s order or request to McCarthy to take plaintiff “out of here” can be considered as an order or request to take plaintiff, not out of the plaza, but out of the park, still Wylie was not in the employ of the defendant, but of the Hotel Company, and his order cannot be held to be an order of the defendant. The fact that the general manager of the defendant designated Griebenow chief of the White City police did not in any manner change or affect Griebenow’s relation to the defendant.

The acts of Griebenow and Carr were committed without the knowledge or direction of any officer or agent of the defendant. Their appointment as policemen by the superintendent of police of Chicago, although made at the designation of the defendant, and the defendant paid them for their services as policemen, did not make them the servants of the defendant. Tolchester Beach Co. v. Steinmeier, 72 Md. 313; Healey v. Lothrop, 171 Mass. 263; Newell Mal. Pros. 81.

In our opinion the evidence in this record is not sufficient to warrant or support a finding by the jury that Griebenow and Carr were employed by the defendant in any other capacity than as policemen, nor a finding of any facts or circumstances from which the jury might properly find that the assault on the plaintiff was an act done by Griebenow and Carr within the line or scope of their employment by the defendant while engaged in the defendant’s business with a view to the furtherance of that business, and the court therefore erred in denying defendant’s motion for a new trial.

The judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. D. W. Hoban, Appellant.
    Gen. No. 14,390.
    1. Larceny—what constitutes. A person who has purchased waste paper and who finds therein unused stamped envelopes which he has no reason to believe had been acquired by such purchase, is guilty of larceny if he appropriates such envelopes to his own use.

      2. Larceny—when value of stolen property need not he found. In order to sustain a conviction of petty larceny, the court, if the cause Is tried without a jury, need not find the value of the property stolen in order validly to convict.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    ■Statement fey tie Court. The appellant was charged, by an information filed in the Municipal Court, with stealing and carrying away, etc., forty stamped envelopes valued at $1. A jury was waived and the court found the defendant “guilty as charged in the indictment” and sentenced him to pay a fine of $25 and costs, from which sentence and judgment he prosecutes this appeal.
    The evidence at the trial tended to show that the Barrett Manufacturing Company had the words, “Barrett Manufacturing Co., Chicago. Barrett’s Brands standard everywhere. B. on every roll,” printed on the upper left-hand corner of each envelope of a lot of 10,000 United States two-cent stamped envelopes, and sent said lot of envelopes to Buckley Dement & Co. to be addressed; that the Illinois Paper Stock Company, a corporation of which defendant was president, bought from Buckley Dement & Co. their waste paper, in bales of 500 pounds each, at thirty cents per hundred, in July and August, 1907; that about September 1, 1907, a sorter of waste paper in the service of said Illinois Paper Stock Company, in sorting waste paper, found forty or more, two-cent stamped envelopes with the words above quoted printed in the left hand corner of each, and took them to the defendant, telling him where she found them; that he put them in his drawer, and from time to time thereafter used several in sending through the mail bills and receipts of his company; that about November 22, 1907, an officer went to defendant’s office with a search warrant, asked defendant if he had such envelopes, and the defendant at once produced and gave to the officer a number of said envelopes, saying that they had been found in the waste paper.
    Pierson & Pease, for plaintiff in error.
    John J. Healy and Clifford Gr. Roe, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

Prom the facts proven the court might properly find that the stamped envelopes found by the sorter and by her delivered to the defendant, were envelopes of the Barrett Manufacturing Company which that company delivered to Buckley Dement & Co. to be addressed, and which in some way, not explained, got into one of the bales of waste paper which that firm sold to the Illinois Paper Stock Company. The envelopes were bailed by the Barrett Company to Buckley Dement & Co. to be addressed. When they undertook to return them to the Barrett Company the bailment ended. If by any means some of the envelopes so received were not returned but remained in the custody of Buckley Dement & Co., they had only the custody and not the possession of such envelopes. By the sale and delivery of the bales of paper in which such stamped envelopes were by Buckley Dement & Co. to the Illinois Paper Stock Company, the custody only, not the possession, of said stamped envelopes passed to said Paper Stock Company. When a sorter in the service of the Paper Stock Company found in the waste paper the stamped envelopes and took them to the defendant, her superior, the custody of such envelopes was not changed. Her act was not a taking, not a trespass. The taking, the trespass, was when the defendant appropriated to his own use, or the use of the corporation of which he was president, some of the envelopes, and was a taking from the possession of the Barrett Manufacturing Company.

The printing on the envelopes afforded the defendant reasonable means of at once ascertaining the owner. He testified that he knew that the envelopes did not belong to him; knew that there was no intention on his part to buy, or on the seller of the waste paper, to sell stamped envelopes at thirty cents a hundred pounds. Asked why he did not send them back to the Barrett Manufacturing Company, whose name was printed on the envelopes, he answered: “I figured that some-printer who printed them had thrown them back in and if I sent them back to the Barrett Manufacturing Company it would react on the printer and stop his business.”

When a person bought a bureau at public auction in which he afterwards discovered, in a secret drawer, a purse containing money which he appropriated to his own use, it was held that if the purchaser had no reason to believe that anything more than the bureau itself was sold, the abstraction of the money was a felonious taking and he was guilty of larceny in appropriating it to his own use. Merry v. Green, 7 M. & W. 623; Cartwright v. Green, 8 Ves. 405, 2 Leach C. C. 952. Here the defendant, by his own admission, knew when he appropriated some of the stamped envelopes that his corporation had not bought them, and that they were the property of the Barrett Manufacturing Company, and we think that the finding and judgment that he was guilty of larceny in so doing cannot be said to be against the evidence. We find no error in the rulings of the court on questions of evidence.

By its finding the court found, “the defendant guilty as charged in the information,” and did not find the value of the stolen property. To sustain a sentence of imprisonment in the penitentiary for grand larceny, or receiving stolen property, there must be a finding that the value of the property stolen or received exceeds $15. Tobin v. The People, 104 Ill. 568. But such finding is not necessary to sustain a conviction of petit larceny.

Finding no error in the record the judgment will be affirmed.

Affirmed.


text:
    In the Matter of the Estate of Paulina W. Stanowick, deceased. Antonia Rimelin, Administratrix, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 14,398.
    Administration of estates—when interest chargeable against administratrix for failure to close estate. Held, that under the evidence in this case, no good cause was shown for the failure of the administratrix to make distribution and that interest: was properly chargeable against her under section 113 of the Administration Act.
    Objections to report of administratrix. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed in part and reversed in part with directions.
    Opinion filed February 16, 1909.
    Statement by the Court. Paulina W. Stanowick died December 17, 1896, leaving a will bequeathing to her husband, Valentine, her estate remaining after the payment of two legacies, one of $300, the other of $400.
    Valentine Stanowick died in January, 1897. By his will he bequeathed to Antonia Bimelin and Anna Stanowick the proceeds of the estate of his deceased wife, Paulina W. Stanowick, in equal parts. Each of said wills named an executor, each will was probated, the executor named in each qualified, and letters were duly issued to him. In 1897 each of said executors resigned and Antonia Bimelin was appointed administratrix de bonis non with the will annexed of each of said estates. October .17, 1904, she filed in the Probate Court her amended final account as such administratrix of the estate of Paulina W. Stanowick, to which Anna M. L. Schultz, who is the Anna Stanowick named in the will of Valentine Stanowick, filed objections. The amount of the estate left after payment of debts, legacies and costs of administration, as stated in said amended final account, was $3,417.99, which the account stated had been, “paid Admx. estate Valentine Stanowick.”
    December 16, 1904, the Probate Court restated the account and found that the amount in the hands of said administratrix of the estate of Paulina to be paid under her will to the administratrix of the estate of Valentine was $4,807.32. From this order the administratrix appealed to the Circuit Court. After a Bearing tBe court stated tBe account substantially as stated by the Probate Court finding the “amount to be accounted for by said Antonia Rimelin as administratrix of the estate of said Paulina W. Stanowick, deceased, on December 16, 1904, and then payable to the legal representative of the estate of Valentine Stanowick, deceased $4,807.32.” The order then proceeds as follows: “And it is further ordered, adjudged and decreed that said Antonia Rimelin also account for and pay to the legal representative of the estate of said Valentine Stanowick, deceased, interest on said sum of $4,807.32 at the rate of five per cent, per annum from December 16, 1904.”
    From that order the administratrix prosecutes this appeal.
    Ernest Saunders, for appellant.
    Edward J. Phillips, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

We think that the order appealed from is a final order, and the motion of appellee to dismiss the appeal will be denied.

The controversy as to the account relates to two items only.

1. In her amended account the administratrix charges herself, on account of the Tessmer note and interest thereon, $2,575, and in the account as stated by the Circuit Court, she is charged with the sums of $2,500, $75, and also with the additional sum of $510.40 as interest on said note from July 25, 1897, to December 20, 1900, at 6 per cent.

2. In the account as stated by the court the administratrix is charged with $1,178.93 for interest on $3,298.38 from December 20, 1900, to August 1, 1904, at 10 per cent, per annum, and there is no such charge in her account.

The Tessmer note was inventoried by the executor of the will of Paulina W. Stanowick as a promissory note for $2,500, dated July 25, 1896, payable to the order of Joseph Anton Muehleck and Paulina W. Muehleck five years after date, with interest at 6 per cent, per annum secured by trust deed on certain real estate. The administratrix sold this note to a brewing company for $2,500 soon after July 25, 1897, and used the proceeds. In her account she charged herself, as has been said, with the principal $2,500 and the interest coupon due July 25, 1897, $75. Her attorney now insists that she should be charged with but one-half of said notes, on the ground that the same are payable to the order of Joseph Anton Muehleck, the former husband of Paulina W. Stanowick, and herself, then Paulina W. Muehleck. The executor of the will of Paulina W. Stanowick inventoried the principal note as a note belonging to her estate; said administratrix received said notes from said executor, collected the coupon due July 25, 1897, then sold the principal note and the remaining coupons for $2,500, and used the money received therefor in her own business. The contention that she should be charged with one-half only of the money received on the Tessmer note cannot be sustained.

The order appealed from charges her not only with the principal $2,500, the interest coupon due July 25, 1897, $75, but with interest on $2,500 from July 25, 1897, to December 20,1900, at 6 per cent., $510.40.

May 27, 1898, a bill was filed to contest the will of Paulina W. Stanowick, which was dismissed June 20, 1900. No reason for selling said note is shown by the evidence. The estate should have been settled December 20, 1900, six months after said bill was dismissed, and we think the court did not err in charging the administratrix interest at 6 per cent, per annum on said sum of $2,500 from July 25, 1897, to December 20, 1900.

The basis for the charge of $1,178.93 interest against the administratrix is thus set forth in the account stated by the Circuit Court:

“Interest at 10% per annum from Dec. 20, 1900, to August 1, 1904, on $3,290.38, found to be in the control and possession of said administratrix as property of said estate on December 20, 1900, giving her credit for $638.01 disbursements in estate of Valentine Stanowick, deceased, $1,178.93.”

Section 113 of the Administration Act provides that: “All moneys, bonds, notes and credits which any administrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of administration, shall bear interest, and the executor or administrator shall be charged interest thereon from said period at the' rate of 10 per cent., or after two years and six months from any subsequent time that he may have discovered and received the same, unless good cause is shown to the court why such should not be taxed.”

No good cause is shown by the evidence why the estate should not have been settled December 20, 1900, six months after the dismissal of the bill above referred to. The administratrix filed her final account August 1, 1904, which was afterwards withdrawn and an amended final account filed October 17, 1904. In place of charging the administratrix interest at 10 per cent, on the entire amount of the estate in her hands, the court in fixing the amount on which such interest should be charged, gave her credit for $638.01 disbursements by her in the estate of Valentine Stanowick, treating such disbursements as a payment by her as administratrix of Paulina to herself as administratrix of the estate of Valentine. We think the charge of $1,178.93 as interest on the estate in her hands from December 20, 1900, to August 1, 1904, was proper.

With the attempted settlement between the objector and the administratrix, of June 17, 1907, the Circuit Court in this case had nothing to do. The question in the case is as to the amount of the estate of Paulina W. Stanowick. The provisions of the will of Valentine are material only for the purpose of showing that the objector had such an interest in the estate of Paulina as gave her the right to object to the final account of the administratrix of that estate. It is the duty of the administratrix of the estate of Paulina to pay over to the legal representative of Valentine the amount of her estate, and the rights of Antonia Bimelin and Anna M. L. Schultz to the proceeds of the estate of Paulina, under the will of Valentine, must be settled and determined on the settlement and distribution of the estate of Valentine and cannot be settled or determined in this proceeding.

It is admitted by the objector that the appellant, as administratrix of the estate of Valentine, paid to the objector in the fall of 1904, $1,000 to apply on her legacy under the will of Valentine. In determining the amount on which appellant should pay interest from December 16, 1904, the date of the statement of her account by the Probate Court, appellant as administratrix "of Paulina should, we think, have been given credit for this payment of $1,000 as a payment by her as administratrix of Paulina to herself as administratrix of the estate of Valentine, and ordered to pay and account for to the legal representatives of the estate of Valentine, interest on the sum of $3,807-.32, in place of $4,807.32, at the rate of 5 per cent, per annum from December 16, 1904.

We do not think that , the order as to the payment of interest is erroneous in not stating the amount of such interest.

So much of the order of the Circuit Court as orders: “that said Antonia Bimelin account for and pay to the legal representatives of the estate of said Valentine Stanowick, deceased, interest on said sum of $4,807.32 at the rate of 5 per cent, per annum from December 16, 1904,” will be reversed. In all other respects the order of the Circuit Court will be affirmed and the cause will be remanded to the Circuit Court with directions to that court to enter an order that said Antonia Bimelin, as administratrix de bonis non with the will annexed of Paulina W. Stanowick, deceased, account for and pay to the legal representative of the estate of said Valentine Stanowick, deceased, interest on the sum of $3,807.32 at the rate of 5 per cent, per annum from December 16, 1904.

Each party will pay one-half of the costs of this appeal.

Affirmed in part and reversed in part with directions.


author: Mr. Justice Chytraus

text:
    Cornelius Wiersema, Defendant in Error, v. Lockwood & Strickland Company, Plaintiff in Error.
    Gen. No. 14,244.
    1. Trial—when conduct of counsel ground for reversal. Conduct of counsel which consists in persisting in bringing to the attention of the jury the irrelevant fact, if fact it was, that the cause was being defended by an insurance company, is ground for reversal, and this' notwithstanding an objection to the offer to prove such alleged fact was sustained by the court; such conduct likewise is so prejudicial that it cannot be cured by instruction.
    2. Master and servant—when instruction upon assumed risk erroneous. An instruction upon the subject of assumed risk, which tells the jury that a servant assumes only the usual and ordinary risks incident to the employment, is erroneous if it does not in the same connection instruct the jury that a servant also assumes such risks as are obvious and apparent in the particular service.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 16, 1909.
    Rehearing denied January 26, 1909.
    F. J. Canty and George Peirshing, for plaintiff in error; E. J. Folonie, of counsel.
    Gallagher & Messner, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

This is an action by defendant in error, Wiersema, for the recovery of damages for a personal injury, against plaintiff in error, Lockwood & Strickland Company. Wiersema was in the employ of the Lockwood & Strickland Company and was hurt in connection with their machinery.

Wiersema recovered a judgment in the Municipal Court for $500 and this writ of error is brought to reverse that judgment.

The proceedings in the court below, as shown by this record, are such that it would be useless to discuss the merits of the case. We are compelled to reverse and remand the case for another trial because of the manner in which counsel for defendant in error brought to the attention of the jury matter irrelevant and prejudicial to the plaintiff in error, and because of error in the instructions to the jury.

It is of vita] importance in Hie administration of justice that cases should be fairly presented to the jury. It is fundamental that any verdict shown to have its basis in, passion or prejudice, or which may have its basis in irrelevant evidence, must be set aside by the trial judge. It is no kindness to the prevailing party to enter a judgment upon such verdict, for it but occasions delay and creates expense to have it reversed by a court of review.

Counsel for Wiersema either suspected or knew that the defendant, Lockwood Sc Strickland Company, carried insurance in the London Guaranty & Accident Company, whereby defendant would be indemnified or reimbursed for money paid out by reason of any injury to any of the defendant’s employes.

If defendant was so protected, that fact could not, under the law, be permitted to either increase or decrease the amount to be recovered by the plaintiff, nor could it be permitted, lawfully, in the slightest degree to affect the question of defendant’s liability for the injury to the plaintiff. Furthermore, the Accident Insurance Company neither was nor could then be before the court, having a hearing in respect to the existence or the extent of its liability. Therefore, if the jury increased the amount of the verdict or if the decision of the jury upon the question of liability was influenced favorably to the plaintiff, in the slightest extent, because the Insurance Company stood back of the employer, who was in court , making the defense, to reimburse it, then, to that extent, the Insurance Company was deprived of its property without due process of law—without a hearing. Manifestly such result would be not only erroneous but grossly unfair and unjust. The introduction of irrelevant matter of such possible evil tendency should be most scrupulously avoided by counsel and most carefully guarded against by the court.

Upon the trial of this case defendant called Dr. W. O. Bickford, who testified as to the extent of the plaintiff’s injuries. It appears that at the time of the injury the doctor had been telephoned by defendant to attend and he did attend plaintiff. Upon cross-examination by counsel for the plaintiff the following occurred:

“Q. Haven’t you a working arrangement out there in your district with the London Guaranty & Accident Co.?

Mr. Pfirshing: I object to that.

Q. Well, are not your bills paid by that Company?

Mr. Pfirshing: I object to that your Honor.

Mr. Gallagher: We have a right to know the facts in this case. * * * He has already stated that they paid his bills.

The Court: It will be stricken out.

Mr. Gallagher: Exception. I believe, your Honor, that it is bound to develop a little later in this case just who is conducting the defense here.”

Immediately when the objectionable and irrelevant matter was objected to, it will be observed, counsel for plaintiff, by innuendo and direct implication, undertook to himself assert the matter to be a truth. He quickly resolved that if he could not get the information before the jury from the witness he would bring it home to the jury by his own assertion, at least.

He sought to and did forestall the court. He referred to it as a fact. When the only question was whether it was proper to inform the jury as to the truth of the matter he anticipated the ruling of the court and said: “We have a right to know the facts in this case” and added what, so far as the abstract shows, seems to us an unfounded remark: “He (the doctor) has already stated that they (the Insurance Company) paid his bills.” Such a remark might well mislead some of the jurors. Not content with all this counsel, after an adverse ruling by the court, does not submit, but, in open defiance of the ruling of the court, makes an entirely uncalled for and unnecessary remark and thereby emphasizes his innuendo. Upon the ruling of the court he remarks: “I believe, your Honor, that it is bound to develop a little later in this case just who is conducting the defense here.”

Many cases have been reversed for just such offense by counsel. Counsel must be presumed to know the law of evidence of his own state. The misfortune to his client of reversal is entirely counsel’s own fault, as it was in the numerous like cases to which we shall refer. After the remarks of counsel the continuance of the trial was a mere speculation. Had there been a verdict for the defendant it would have been, so far as this proposition is concerned, the duty of the trial judge to permit the verdict to stand. Being for the plaintiff, as it was, the duty of the trial judge was to set the verdict aside and grant a new trial.

In Eckhart & Swan Milling Company v. Schaefer, 101 Ill. App. 500, Mr. Justice Adams delivering the opinion of the court said: “If it were a fact that the Fidelity & Casualty Company was defending the suit, it would not be competent to prove that fact, for the plain reason that such proof would not tend, in any degree, to sustain the issues; it would be totally irrelevant. It is, therefore, plain that the attorneys, presumably learned in the law, could not have made the statements in question for any legitimate purpose, and while we will not say that they were made for an illegitimate purpose, and to prejudice the jury, we are of opinion that they were well calculated to have that effect.” The judgment for plaintiff was reversed. What was said in that case is in harmony with our views, with the reservation, however, that it is not here necessary to pass upon the question whether upon an examination of veniremen it is competent to inquire into their acquaintance with persons connected with an insurance company the connection of which with the controversy under consideration cannot legitimately appear in the case.

Fuller Co. v. Darragh, 101 Ill. App. 664, is another case where the question we are considering was discussed. Therein the opinion of the court was delivered by Mr. Justice Waterman. Among other things he said: “To the proper conduct of jury trials one thing is absolutely essential, viz.: a recognition of the principle that at the bar of justice all men are equal. All causes are to be tried, all questions determined, upon matters pertinent thereto, and not upon considerations which in the controversy ought not to be mentioned. * * * None of .the learned counsel for appellee will gravely contend that whether appellant had procured insurance against liability for accidents or whether the suit under consideration was being defended by an insurance company or its attorney could possibly throw any light upon the question whether the injury to appellee had been occasioned by actionable negligence of appellant. Why, then, should the jury be told that the defense was made by a casualty insurance company. * * * Jurors may be asked if they know certain persons or have business or other relations with them, but under the guise of obtaining a fair jury, information calculated to prejudice jurors against either party cannot be given, and the trial court should not only prevent this, but if satisfied that despite its rulings jurors have thus been swerved in the considerations, should set aside verdicts so obtained.”- The judgment obtained in that case, by the plaintiff, was reversed by this court because his counsel -informed the jury that the Fidelity & Casualty Company was defending the case.

Manigold v. Black River Traction Company, 80 N. Y. Supp. 861, is another case in point where the judgment of the trial court was for the like cause reversed. The language used in that case is very pertinent.

In Lone Star Brg. Co. v. Voith, 84 S. W. Rep. 1100, the same doctrine was announced. In that case the court said: “There are a number of assignments of error predicated upon bills of exception which show persistent efforts on the part of appellee’s counsel during the trial from beginning to the close of his argument to get before the jury the fact that appellant was insured by some Insurance Company against loss by reason of appellee’s injuries, and to create the impression upon the jury that by reason of such insurance the damages sued for, if recovered, would fall apon the Insurance Company, and not upon the appellant. We are of the opinion that this conduct' on the part of plaintiff’s counsel was prejudicial to the defendant and constitutes error which requires a reversal of the judgment.” The same rule will be found in Iverson v. McDonnell, 78 Pac. Rep. 202; Lipschutz v. Ross, 84 N. Y. Supp 632.

As will be seen from some of the cases cited above, no instruction can cure the error. It is obvious why this should be so. If counsel were permitted to resort to the practice of violating the law of evidence and then curing the violation by merely giving an instruction to the jury to disregard the unwarranted and illegitimate remarks made, the law of evidence would be useless and but a farce. Such instructions, usually, but make more emphatic the evil intended to be cured.

There can be nothing more prejudicial to a defendant in a personal injury case, where the unfortunate plaintiff is present before the jury with an injury more or less serious, than to have the jury told that if it will render a verdict in the case for the unfortunate plaintiff the defendant present, who is apparently making the defense, will not have to pay it but it will be paid by an absent real defendant, a foreign corporation. And counsel need not tell the jurors all that, for a suggestive remark is sufficient, Human nature, even in the jury box, is such that a multitude of instructions cannot cure the harm done.

Counsel for defendant in error contend that because the Accident Insurance Company was the real defendant and, as they assert, in fact, through their own counsel defended the case, therefore it was competent to show bias, on the witness’ part, in favor of the Accident Insurance Company. We cannot agree with this contention. True the interest and animus of a witness in a case may be shown. But it was not necessary, in this case, to refer to the Accident Insurance Company at all, for the purpose of showing interest or animus favorable to the defense on the part of the witness. Primarily, if liability there be, the liability is that of the Lockwood & Strickland Company to the plaintiff, Wiersema. If the interest or animus, sought for by counsel for Wiersema, existed it was in favor of the defendant Lockwood & Strickland Company, although through the Accident Insurance Company. The witness had just replied that he had rendered his bill to the Lockwood & Strickland Company. When counsel asked the witness whether his bills were paid by the Accident Insurance Company he could just as well, so far as the legitimate purpose of his question was concerned, have asked the witness whether he had any “working arrangement” with anyone connected with the Lockwood & Strickland Company or any one connected with that company in the defense of the case, and whether any one in any wise connected with the defendant company paid his bills. Ordinarily there would, in such case, be many ways in which the interest or animus of the witness might be ascertained, without counsel mentioning the Accident Insurance Company. The broad way in which counsel proceeded indicates rather a desire on his part to bring before the jury the fact that a foreign insurance company would pay the judgment than a desire to bring out the interest and animus of the witness. Of course, if, in developing competent evidence, it should incidentally, and not mala fides, appear that an accident insurance company was concerned that would be another question. But if such fact was brought out by procurement of counsel, by private suggestion to the witness or otherwise, then any verdict obtained for the plaintiff should be set aside. “Emulation and zeal lead lawyers astray; but the general law of the profession is duty, not success,” said the able and eminent Edward Q-. Byan.

At the twenty-first annual meeting of the American Bar Association held August 31, 1908, the following among other canons of professional ethics was adopted: “23 * * * A lawyer should not offer evidence, which he knows the court should reject, in order to get the same before the jury by argument for its admissibility. * * * Neither should he introduce into an argument, addressed to the court, remarks or statements intended to influence the jury or bystanders.”

Counsel for defendant in error refer to C. C. Ry. Co. v. Carroll, 206 Ill 318; Wrisley Co. v. Burke, 203 Ill. 250; and C. & E. I. Ry. Co. v. Schmitz, 211 Ill. 446, as sustaining their contention here. We do not so understand those cases. The question here involved was not before the court in any of those cases. In the Carroll case the railway company offered no evidence, except evidence going to the extent of the injuries, and on appeal the company contended that there was nothing in the record showing that it owned, operated or controlled the car line upon which Carroll was a passenger when injured. In the evidence it appeared that a doctor Babcock, a doctor Moyer and a doctor Learning, who all testified for the railway company, stated that they had been paid by the railway company for examining Carroll, and this, with other evidence, was considered by the court as bearing on the question of ownership or control. The court said: “It is urged it was error, on cross-examination, to ask the doctors introduced by appellant by whom they were sent and paid. We do not think so. It is always competent, on cross-examination, to ask a witness if he is in the employ of a party, or if at the time he rendered the particular service he was in the employ of such party for the purpose of showing his relation to the case and his interest in it, as affecting his credibility and weight of his evidence.” What we have already said herein is not inconsistent with what our Supreme Court there said. The fact that in the examination of a witness care is required in order not to bring ont what is illegitimate while developing what is legitimate will not prevent a setting aside of the verdict or a reversal where counsel has failed to exercise the required care and therefore brought out the illegitimate evidence. In the Schmitz case the railroad company in cross-examining a doctor sought to bring out the fact that as a medical man he was interested in a great number of personal injury suits against corporations. This line of cross-examination the trial court excluded and the Supreme Court held it was rightfully excluded, and the Carroll case was referred to as not being inconsistent with the ruling the court then made. That is all in that case. In the Wrisley case the court simply held that the fact that the physician who testified had been engaged and paid by the defendant company was proper testimony. We fail to find anything in that case inconsistent with our views expressed heréin. So in none of the three cases cited by defendant in error do we find anything inconsistent with our holding here.

We also find error in that the trial court in instructing the jury upon the subject of assumed risks told the jury that the servant assumed only the usual and ordinary risks incident to the employment and did not in the same connection instruct the jury that a servant also assumed such risks as are obvious and apparent in the particular service, according to McCormick Harvester Co. v. Zakzewski, 220 Ill. 522, 530.

For the errors aforesaid the case is reversed and remanded.

Reversed and remanded.


text:
    Samuel Mahaffey et al., Defendants in Error, v. Wisconsin Central Railway Company, Plaintiff in Error.
    Gen. No. 14,296.
    1. Contract—by what law governed. Held, that the contract in question in this case was an Illinois and not a Wisconsin contract.
    2. Contract—effect of' change by mutual consent. An agreement when changed hy the mutual consent of the parties becomes a new contract.
    3. Common carriers—extent of obligation of. A common carrier hy the law of Illinois is an insurer of goods entrusted to it and accountable for the loss thereof, or any damage thereto, unless shown to have happened hy the act of God or the public enemy or to have been occasioned hy an act of the shipper or someone in his employ; the burden of proving exoneration is upon the carrier. 'This rule of liability, however, may he subject to the exception of non-applicability to live stock and perishable goods; the existence of this exception, however, is not determined by the court in this cáse.
    4. Common carriers—liability of initial carrier for acts of connecting carriers. The initial carrier is liable for the acts of all succeeding carriers for the entire route.
    5. Appeals and errors—effect given to statement of facts by Municipal Court. The Appellate Court in considering a statement of facts made by the Municipal Court for purposes of review presumes that the facts stated are material and will give effect to such facts accordingly.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    Statement by the Court. On December 4,1907, the defendants in error, plaintiffs below, doing business as The Mahaffey Company, recovered a judgment in the Municipal Court, for $217 and costs, against the Wisconsin Central Railway Company, plaintiff in error. The Railway Company lias sued out this writ of error to reverse that judgment.

      The Mahaffey Company, on October 10,1906, shipped from Custer, Wisconsin, a carload of 200 sacks of potatoes, by the plaintiff in error as a common carrier. Bach sack contained two and one-half bushels, making 500 bushels in all. These potatoes were frozen, damaged and lost to The Mahaffey Company. The judgment is for the value of these potatoes less a charge of $153 for freight.
    The Mahaffey Company ■ shipped the potatoes in an Illinois Central Railroad Company’s car, on'the defendant’s road at Custer, and received from the defendant a shipping receipt or bill of lading acknowledging the receipt of the potatoes. Under the heading of “Consignee, Destination and Routes,” upon the bill of lading, is shown the following: “The Mahaffey Co., Chicago, Ill. Allow Inspection. Hold at Kolze for instructions.” Kolze is a switching station eighteen miles out of Chicago where incoming freight trains are broken up and cars are sidetracked or switched to other roads, according to directions. On October 12, 1906, the plaintiffs gave to the Wisconsin Central at its Chicago station an order or instruction with reference to the car in question, evidently partly in print and .partly written. The material part of that order or instruction is as follows:
    “Change consignee and destination, Hattiesburg, Miss.—To read order The Mahaffey Co.—Notify Pullen Prod. Co.—Route via I. C. & Q. & C., Protect through rate of................Charges: Follow, Guaranteed—Allow Inspection.
    Tours truly,
    The Mahaffey Co.
    Per Math. ’ ’
    It appears The Mahaffey Co. had made an executory contract of sale of the potatoes to the Pullen Produce Company of Hattiesburg, Miss., for 74 cents per bushel,' but The Mahaffey Company retained the control of the potatoes. The letters for the route, in the instruction, mean: “I. C.” Illinois Central Railroad and “Q. & C..” Queen & Crescent Railroad.
    When the instruction was given to the Wisconsin Central, at Chicago, Illinois, the car of potatoes was at Kolze and the agent of that road wrote across the bill of lading, which had been handed to him, as follows:
    “R. Order No. 5868. This Bill of Lading changed at Chicago, 10-12-06, to read as follows: Order The Mahaffey Co. Hattiesburg, Miss., via I. C. & Q. & C. Notify Pullen Produce Co.
    P. Beardecker, Agt. W. C. Ry. Co.
    Noonan.
    Allow Inspection. Charges Guaranteed.”
    The Illinois Central receipted to the Wisconsin Central for the car of potatoes in good order at Chicago, on October 16, 1906. The Hlinois Central afterwards delivered the car to the Gulf & Ship Island Railroad, at Jackson, Miss., on October 20, 1906, and on the following day it reached Hattiesburg over the latter road; but that day was a Sunday and the agent of that road there did not notify the Pullen Produce Company until October 22nd, the day after. J. D. Pullen, manager of the Pullen Produce Company, then inspected the potatoes, while the car was in possession of the G. & S. I. R. R., and rejected them. The potatoes were then in a frozen and damaged condition— principally on top and around the edges. On October 24, 1906, the agent of the G. & S. I. R. R. Co. at Hattiesburg, without any notice to any one so far as the record shows, sold the potaoes for $150 to pay the freight charges thereupon, amounting to $158.40. In the statement of facts it is stated that 74 cents per bushel was the value of the potatoes.
    Hirer, Burch & Latimer and Thomas H. Gill, for plaintiff in error.
    Thomas Marshall, for defendants in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

At the outset of this controversy the parties diverge on the proposition whether we are concerned with a contract entered into in Wisconsin or one entered into in Illinois. Plainly the contract involved is an Illinois contract. When the parties made an agreement in Wisconsin the defendant only agreed to carry the potatoes to “Chicago, Ill.,” and to “Hold at Kolze for instructions.” Without the minds of the parties meeting again the potatoes would go no farther than Chicago, Illinois.

It is contended by defendant with reference to the addition to the Wisconsin bill of lading made in Chicago: “These words do not make a new contract. They simply change the old one. A new agreement is not established by them, but an existing agreement is ‘changed at Chicago.’” We understand that an agreement when changed, by the mutual consent of the parties, becomes a new agreement. An agreement changed is not the old or prior agreement but a new one. When there is a change the minds of the parties have met again and by the fact of the change a new agreement arises. The minds of the parties may thus meet upon the terms of the old agreement with but the slightest change, yet the agreement then made is a new one. If the parties to a Wisconsin contract, partially performed, come together in Ilinois, make some changes in their contract and then reaffirm it the new contract is an Ilinois contract. While the potatoes were still in the possession of the carrier the plaintiffs and the defendant’s agent came together at Chicago. The destination, if not the consignee, was changed and a specified route to Hattiesburg, Mississippi, was agreed upon. The changes agreed upon were endorsed or stamped upon the bill of lading the plaintiffs already had. Thereby the terms of the then existing bill of lading, or agreement of the parties, so far as lawful at the place of contract and not inconsistent with the addition then made, were incorporated in the new agreement. This was on October 12, 1906. The defendant then, as a common carrier, undertook with the plaintiffs that the potatoes should reach their new destination at Hattiesburg. According to the new contract the defendant undertook to deliver the car to the Illinois Central for further forwarding to Hattiesburg. The distance thé car was to be transported upon the defendant’s own tracks may have been very short or very long—whatever may be true in that respect does not affect the relation that* arose between the parties. The change, at Chicago, in the bill of lading, will not permit us to infer that, thereafter, the defendant sustained toward the plaintiffs merely the relation of agent or representative to turn over the car to the Illinois Central, for the previously existing bailment of the potatoes continued. There is no merit in defendant’s contention in that respect. The new contract created the relation of shipper and common carrier for delivery in Hattiesburg to the consignee, The Mahaffey Company itself. The defendant delayed four days, from October 12th to October 16th, in transferring the potatoes to the Illinois Central. It may not be material, but the fair inference is that the potatoes froze during’ that delay and considering the season of the year, not after they started into Mississippi.

Counsel for defendant assumes and asserts that the Pullen Produce Company “stood in the relation of consignee,” or must be considered as the agent of the plaintiffs. Either assumption necessarily leads to error. We do not find either to be justifiable. The consignee was, expressly, The Mahaffey Company itself and no one else. No evidence permitting us to infer any such agency appears.

Upon the conclusion that the parties made a contract in Illinois it naturally follows that the defendant assumed the duties and obligations of an initial common carrier according to the law of this state.

A common carrier is an insurer of goods entrusted to him and accountable for the loss thereof or any damage thereto unless shown to have happened by the act of God or the public enemy or to have been occasioned by an act of the shipper or some one in his position. But the burden of proving exoneration is always upon the carrier. C. & N. W. R. R. Co. v. Sawyer, 69 Ill. 285; Western T. Co. v. Newhall, 24 Ill. 466; I. C. R. R. Co. v. McClelland, 54 Ill. 58; I. C. R. R. Co. v. Frankenberg, 54 Ill. 88; C. &A. R. R. Co. v. Shea, 66 Ill. 471; M. S. & N. I. R. v. Day, 20 Ill. 375. Perhaps this rule of liability as insurer does not extend to live stock and perishable goods, but that is now immaterial. The initial carrier is liable for the acts of all succeeding carriers for the entire route. St. L. & S. W. Ry. Co. v. Elgin M. Co., 175 Ill. 557; I. C. R. R. Co. v. Frankenberg, 54 Ill. 88; Coats v. C., R. I. & P. Ry. Co., 134 Ill. App. 217; I. C. R. R. Co. v. Copeland, 24 Ill. 332.

When the car of potatoes reached Jackson, Mississippi, the common carrier then having them in charge did not follow the terms of the contract of bailment, but departed therefrom and sent the potatoes by way of the Gulf & Ship Island Bailroad instead of by the Queen and Crescent Bailroad, as the contract provided. Then, when the Ship Island Bailroad landed the potatoes at Hattiesburg a large part of them was found to be frozen and, after inspection, the purchaser, the Pullen Produce Company, refused, as it undoubtedly lawfully might refuse, to take them. Thereupon the agent of this interposed common carrier, the Ship Island Bailroad, sold the potatoes and retained the proceeds for the freight thereof, without notice to any one. Thus the potatoes were wholly lost to the plaintiffs. There is no question raised but what the plaintiffs are entitled to recover for the loss and to us it appears that there is no question but what the plaintiffs can recover from the defendant herein in assumpsit upon the contract.

Some question is made by the plaintiff in error to the effect that the record fails to show any basis for the amount awarded as damages. In the Statement of Facts by the trial court it is stated as a fact the value of the potatoes was 74 cents per bushel. We must presume that in its Statement of Facts, made for the express purpose of permitting review, the court states material and not immaterial facts. The value of the potatoes at Hattiesburg, not elsewhere, is material. Consequently the plaintiffs’ 500 bushels of potatoes were worth, at Hattiesburg, $370. We then deduct from that amount the freight to that point testified to be $153 and this leaves $217, the amount of the judgment of the trial court, which is affirmed.

Affirmed.


author: Mb. Justice Chytbaus

text:
    Richard F. Gundry, Defendant in Error, v. James Hancock, Plaintiff in Error.
    Gen. No. 14,302.
    1. Judgments—5y what law authentication governed. The question of the proper and sufficient certification of an official record is not a question controlled by the common law so that an authority thereupon can be found and cited from any state, but the question is controlled by the law of the state “from whence the record comes.”
    2. Judgments—what essential to defeat foreign judgment sued upon in this state. In or’der to show that the judgment of a sister state sued upon in this state is void under the decisions of the state of origin, all the facts essential to bring such foreign judgment within such decisions must be shown by the transcript or transcripts of the record of such judgment.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    Rehearing denied March 2, 1909.

      Statement toy the Court. The transcript of the judgment involved in this case is as follows:
    “Richard F. Gundey, Plaintiff, vs. No. 24894. James Haycock, Defendant.
    Now at this day this cause coming on for trial comes the plaintiff in person and by attorney and defendant although bound to appear comes not but makes default.
    Thereupon the plaintiff waives a jury herein and this cause is submitted to the court upon the pleadings and after having heard the evidence and being fully advised in the premises the court finds that defendant is indebted to plaintiff in the sum of fifty-six and 32/100 ($56.32) dollars by reason of the matters in this controversy.
    It is therefore considered and adjudged by the court that plaintiff recover from defendant and S. S. Gun-lack and W. R.Kemp, the sureties on defendant’s appeal bond, the said sum of fifty-six and 32/100 ($56.32) dollars with interest thereon from this date at the rate of six (6%) per cent, per annum, together with all costs incurred in this cause, and have therefor execution.”
    Ossiay Cameboy, for plaintiff in error.
    Robebt Caydee, for defendant in error.
   Mb. Justice Chytbaus

delivered the opinion of the court.

In this proceeding in error to reverse a judgment of the court below, which judgment was rendered for $59.21 upon a Missouri judgment, it is assigned for error that the transcript of the judgment was not authenticated as required by law. The only respects pointed out in which it is supposed not to be so authenticated are, first, that it is not shown by the certificate of the clerk of the Missouri court that the person certifying as clerk was the clerk of the court and, second, that there is a failure to show by the certificate of the person certifying as judge that he was the judge. In Ducommun v. Hysinger, 14 Ill. 249, speaking, it is true, of the judge’s certificate, it is said: The judge “is not required to state that the person who certifies the record is the clerk of the court, or that the seal attached by him is the seal of the court. The seal speaks for itself, and is presumed to be affixed by the officer having the custody thereof as well as competent authority to do the act.” In that case, referring to the phrase “in due form,” used in the act of Congress with reference to the proving of judicial proceedings of a state in another state, it is held: “The phrase £in due form’ means the mode of attestation in use in the state from whence the record comes. The record must be attested according to that mode; and the certificate of the judge is made the evidence of that fact.” In the certification before us the presiding judge certifies both that the person who, as clerk, certified was the clerk and that the attestation of the proceeding was in due form. The official seal of the court imports authority of office, that is, that the person certifying was the proper officer, viz.: the clerk. No authority is produced holding that the clerk himself must certify that he is the clerk.

As to the point that the judge’s certificate fails to show that he, himself, was the judge: The question of the proper and sufficient certification to a judicial record is not a question controlled, as counsel seems to think, by the common law so that authority thereupon can be found and cited from any state, but, as shown by the case last above cited, the question is controlled by the law of the state “from whence the record comes.” That is, the attestation must be such as is used in the state whence the record comes for the certification of its own records; not such as in that state, in this instance Missouri, the courts may have held to he sufficient when a record has come from another state there. Therefore, the cases Moyer v. Lyon, 38 Mo. App. 635, and Barlow v. Steel, 65 Mo. 611, cited by counsel for plaintiff in error, are not at all in point, for the records involved in those cases came, one from Pennsylvania and the other from New York.

In Horner v. Spelman, 78 Ill. 206, it is held: “The clerk has certified a transcript of the proceedings under the seal of the court, and the presiding judge of the court has certified that the attestation is in due form. This is all the act of Congress required.” In Hull v. Webb, 78 Ill. App. 617, this court, as in duty bound, followed that ruling. No authority has been cited us showing that the act of Congress requires the judge’s certificate to show that he is the judge of the court rendering the judgment; neither has any showing been made that the law of Missouri has any such requirement.

In Dunbar v. Hallowell, 34 Ill. 168, it was held: “The judgment itself is prima facie evidence of jurisdiction.” The case of Chamberlain v. Britton, 136 Ill. App. 290, affirmed in Britton v. Chamberlain, 234 Ill. 246, is a case where this court carefully considered the question whether, upon the interposition of a plea of nul tiel record, it is necessary that an authenticated copy of the entire record of the proceedings in a court of a sister state be put in evidence or if the introduction of the decree alone is sufficient. In the opinion Mr. Justice Baker, speaking for the court, held it to be sufficient if the decree alone be put in evidence. Upon the principles in that case enunciated we are of opinion that when the only purpose is to prove the contents and existence of a judgment at law a properly authenticated copy of the judgment order alone is competent and sufficient.

We fail to see that Glos v. Hanford, 212 Ill. 261, which relates to the certificate required upon a delinquent tax list, is at all pertinent where, as here, the question is one concerning the sufficient certification of a foreign judgment under the act of Congress, and the law of the state where the judgment was rendered. The laws determining what the certification shall he are to he followed in both instances, but those laws are, on this occasion, not the same.

Plaintiff in error, defendant in the judgment, calls our attention to the fact that he made default in the Missouri court and points out to us a provision in a Missouri Statute which he introduced in evidence at the trial in the court here below. The provision is that when an appellant fails to appear, the judgment shall be affirmed. The law of Missouri is, counsel then says, that upon default or failure of an appellant to appear the court has jurisdiction only to affirm not to try the case de novo and that, as shown by the transcript of the judgment introduced in evidence, as the Missouri court here heard the case de novo, and rendered judgment upon the trial, the court exceeded its jurisdictional power; hence the judgment is void and can afford no basis for a judgment in this state. An authority from Missouri is cited apparently sustaining the contention and the conclusion reached by counsel upon his line of reasoning seems logical. But counsel overlooks the fact that there is no evidence in this record showing that the suit wherein the judgment was rendered by the Missouri court was an appeal. We cannot infer or assume that to be so, as counsel does in his argument, and thus render a judgment based upon mere inference or assumption that a court of a sister state rendered a void judgment. There is a strong presumption to the contrary. The only reference to an appeal in the transcript introduced is in the latter part thereof where it is said: “that plaintiff recover from defendant and S. S. Gunlack and W. R. Kemp, the sureties on defendant’s appeal bond.” In view of the absence of a full record of the cause, which either party hereto might have introduced and the absence, otherwise than as stated, of any suggestion in the transcript in evidence that the proceeding wherein the judgment was rendered was an appeal from some inferior tribunal, we cannot consider it to be established that the judgment was rendered in a suit upon appeal. It may as well have been rendered in a suit upon an appeal bond according to some form of procedure in Missouri.

We find no reason for reversing the judgment of the Municipal Court. The judgment will be affirmed.

Affirmed.


author: Peb Curiam.

text:
    Stanley Dees et al., Appellees, v. Albert Cheuvronts et al., Appellants.
    Appeals and errors—When freehold involved. If a freehold estate is directly in issue and the result of the cause must be that one party will gain and the other lose a freehold estate, a freehold is involved for purposes of appeal and the Appellate Court is without jurisdiction.
    Bill for injunction. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1908.
    Appeal dismissed.
    Opinion filed March 4, 1909.
    Golden, Soholfield So Soholfield and Pabkeb So Newlin, for appellants.
    Eagleton & Wesneb, for appellees.
   Peb Curiam.

This hill was by appellees against appellants for a perpetual injunction in restraint of the use of certain real estate and to adjudge and decree the right and title thereto as between contesting claimants. It is alleged in the bill and decreed by the court, that certain of the appellees are the owners in fee simple of the premises in controversy and their right, if any, to the relief prayed for, is based upon that proposition. It is contended on the other hand that the school trustees, the appellants, are the owners in fee by virtue of certain deeds of conveyance, which are made exhibits to the bill. A freehold is therefore involved and this court has no jurisdiction to entertain the appeal. Sanford v. Kane, 127 Ill. 591; Wessels v. Colebank, 174 Ill. 618; Snyder et al. v. Baker et al., 125 Ill. App. 482; Pratt et al. v. Kendig et al., 30 Ill. App. 281. The appeal will be dismissed and the clerk of this court is hereby directed to transmit to the clerk of the Supreme Court the transcript, files and a copy of this order, as required by Section 102, Practice Act.

Appeal dismissed.


author: Pee Cubiam.

text:
    Niven McConnell, Appellee, v. Lewis Hamp et al., Appellants.
    1. Peactice—when propositions of law informal. A proposition of law which assumes the existence of a fact in dispute is informal and may for that reason properly he refused.
    2. Tbovee—when demand not essential. If the taking was tortious or if an actual conversion appears, no demand is essential to the maintenance of trover.
    Trespass. Appeal from the Circuit Court of Hardin county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    W. H. Moobe and D. G-. Thompson, for appellants.
    R. F. Taylob and John C. Oxeobd, for appellee; R. Robebt Fowleb, of counsel.
   Pee Cubiam.

This was a suit in trespass with two counts in trover, brought by appellee against appellants, to recover for injuries to a mining shaft and also for the value of a large amount of flúor spar, mined by appellee and taken away from the dump at the top of the mine by appellants. By agreement of the parties in the court below, a jury was waived and this cause was tried at the same time and upon the same evidence as the case of The Bessa-Nell Mining & Milling Company v. H. H. Pilander et al., also appealed to this court and in which we have filed an opinion at this term. As the evidence in the two cases was identical and the facts are» set out fully in our opinion in the case last referred to, we deem it unnecessary to repeat the same here.

In this case the court found the issues for the appellee and entered judgment against appellants for $700 and costs. During the time appellee was in possession of the mine or mines in question, he took out a large amount of flúor spar which was desposited on a dump at the surface near the mines. It is claimed by appellee that this flúor spar was removed from the premises and sold by Lewis Hamp, the original owner of the 40 acres of land on which the mines were located, and Thomas H. Clark, who was secretary and treasurer of the Bessa-Nell Mining & Milling Company. This suit was brought on October 20, 1905.

Appellants insist that “Appellee cannot recover in this case because he did not have possession when the alleged trespasses were committed and never acquired such possession prior to the beginning of this suit.” It follows from what we said in the other case, above referred to, that the evidence was sufficient to warrant the court below in finding, as it must be presumed it did, that appellee McConnell had not forfeited his rights under the lease, from Hamp to Haley. The reasons for this finding will apply with particular force to the acre of land for which J. M. Steel, the agent of appellee, paid Lewis Hamp the $40.00 provided for in the lease and for which he took a written receipt from Hamp, stating that the $40 was received by bim “for use of surface of one acre of land for •mining purposes on which is located shafts and buildings.” This receipt was given July 11, 1903, which was after the three years provided for in the lease had expired and nearly a year before Hamp and wife made the lease to F. A. McClelland, under which the RessaNell Mining. & Milling Company claim their interest in the property.

We are of opinion, therefore, that the evidence fully sustains the finding of the court below in favor of appellee, and while the amount of the judgment appears to be somewhat large, yet we cannot say that it was not warranted by the proofs.

In addition to such questions as were based upon the facts, appellants, in their reply brief, state, the court erred in not holding as the law the third and fourth propositions of law submitted by them. The third assumed as a matter of fact that appellee had abandoned the mining property and for this reason, as well as for the fact that it appears to be incomplete and imperfectly drawn, it was properly refused. The fourth stated, “The law is that before the plaintiff can recover in this case under the count in trover, for the conversion of the spar, he must prove a legal demand for the same before bringing his suit.” The fault of this proposition of law is that it does not apply to the facts in this case for the reason that where the taking is tortious or there is an actual conversion no demand is necessary. In Brunner v. Dyball, 42 Ill. 34, it is said, where the question whether demand and refusal were necessary to a recovery in trover was under consideration, “It has been held that the wrongful assumption of the ownership of property is a conversion and whenever a conversion is shown the action may be maintained. When the property has been sold and converted into money a demand is unnecessary because an actual conversion has taken place. So generally when a party commits a trespass.by wrongfully taking possession of the property of another, although it may be under a claim of right, a recovery may be had. The rule is laid down by Chitty in his treatise on Pleading, 176, that a conversion may be by the wrongful taking of personal property; by some other illegal assumption of ownership or illegally using or misusing property; or by a wrongful detention of goods. He also says that wherever trespass will lie for taking the goods of the plaintiff wrongfully, trover will also lie and in case of the conversion of wrongful taldng a demand and refusal are not necessary.” In Hayes v. Mass. Life Ins. Co., 125 Ill. 626, it is held, that in trover “demand and refusal are unnecessary if the taking is tortious or if an actual conversion is shown. ’ ’

In this case the proof was that the property in question had been taken and sold by appellants and they had appropriated to their own use the proceeds of sale, and the evidence also warranted a finding that said property belonged to appellee and appellants wrongfully obtained possession thereof.

We find no error in the record which would authorize a reversal of the judgment in this case and the same is accordingly affirmed.

Affirmed.


author: Per Curiam.

text:
    The People, for use of State Board of Health, Appellee, v. Mary Weding, Appellee.

      Medicine—when practicing without license not established. Held, that the defendant, a licensed midwife, was not shown to have practiced medicine without a license in violation of the statute. Evidence that a tablet of some kind was given—-the exact kind not being shown—is not sufficient to establish that the defendant had “used any drugs or medicine.”
    Action in debt. Appeal from the Circuit Court of Madison county; the Hon. Chables T. Moobe, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    Warhock, Williamsou & Burroughs, for appellant; H. H. Willoughby, of counsel.

      E. J. Browh, for appellee.
   Per Curiam.

TMs was an action in debt, in the Circuit Court of Madison county, by appellee against appellant, to .recover penalties for the alleged practice of medicine by appellant without a license, in violation of Section 9 of the Act pertaining to Medicine and Surgery. Jury waived. Trial by the court without a jury. The court found appellant guilty on the fifth count of the declaration, rendered judgment on the finding, imposed a fine of $100, and costs, and ' ordered her committed to the county jail until the fine and costs were paid.

The declaration consisted of eight counts, each in effect charging appellant with treating a specified patient or patients, without having a license, in violation of the statute. At the close of the evidence in chief counsel for appellee withdrew all the counts except the fifth and seventh. The fifth charged appellant with treating Mrs. Touree Hawks, and the seventh, with treating two infant children of Mrs. Touree Hawks.

Appellant has a license as a midwife, issued by the State Board of Health, June 16, 1897, and has practiced as a midwife in Granite City and in that neighborhood ever since, having an extensive practice, sometimes going as far as twenty miles to visit patients. Since the prosecution withdrew six counts of the declaration and the court found appellant not guilty as to one count, there remains for our consideration only the case as based upon the remaining count,—the fifth. This count as above noted charges appellant with treating Mrs. Touree Hawks.

Mrs Hawks was confined on the 27th day of December, 1907, and appellant was called to attend her. Mrs. Hawks gave birth to twins, and appellant attended upon her “for about eight days, this being the usual time for a midwife to attend in labor cases.” Counsel for appellee claims that appellant gave Mrs. Hawks some kind of a tablet, administered to her in water, just after the birth of the children. This is the sum total of the claim against appellant, with respect to this count, and counsel does not- even suggest what the tablet contained nor what it was given for. The proof that any tablet was in fact administered by appellant or under her direction, or even that the patient took a tablet, is not satisfactory; and we are of opinion that the evidence wholly fails to prove that appellant “used any drugs or medicine,” at any time in connection with her attendance upon Mrs. Hawks. This being our judgment as to the state of the evidence, and being conclusive as to the case, we do not feel that it would be proper for us to discuss and express our opinion upon the other questions raised upon this appeal.

The judgment of the Circuit Court is reversed, and we find as an ultimate fact to be incorporated in the judgment, that the evidence does not prove that appellant used any drugs or medicine, at any time, in connection with her attendance upon Mrs. Touree Hawks during the period of her confinement.

Reversed.


author: Mr. Justice Myers

text:
    G. L. Utter & Son, Appellants, v. J. D. Bristow, Appellee.

      Vebdict—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.

      Assumpsit. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at, the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Rehearing denied February 25, 1909.
    Pillow, Smith & Store, for appellants; H. M. Phipps, of counsel.

      Denison & Speller, for appellee; W. A. Wall, of counsel.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action of assumpsit, brought by appellants to recover from appellee, on a claim for commissions in the sale of real estate owned by appellee. On plea of general issue the case was tried by the court, without a jury. The finding and judgment was for the defendant, from which an appeal was taken to this court.

The only question made in argument is, whether or not the finding and judgment are justified by the evidence. There is no dispute of facts; the contract upon which appellants rely to establish liability is based entirely upon written correspondence pertaining to the matters in controversy.

The appellee owned a farm of 280 acres of land in Pulaski county, which, he desired to sell. Charles Wehrenberg, of Pulaski county, was a real estate agent, as were also the appellants, G. L. Utter & Son of Mt. Carmel, Illinois. On June 16, 1906, the appellee gave to Charles Wehrenberg, in writing, the exclusive right to sell his farm in Pulaski county for the period of sixty days. On July 13,1906, G. L. Utter & Son wrote to appellee, telling him that they thought they had a good prospect for selling his land; that they had written three letters to Wehrenberg to get information about the land, to which the latter had made no reply, and asking for terms of sale. On July 15, 1906, appellee replied to appellants’ letter, quoting them his terms of sale, but first saying: “In reply will say that a month ago I gave Mr. Wehrenberg an exclusive privilege for sixty days to sell my Oaktown farm; and he said at the time he could sell in thirty days but for sure he wanted sixty; the term will expire on the 15th prox., and he will never get another at any price. He has a friend that wants the place but is not just ready to close.” After receiving this letter appellants took parties down to Pulaski county to see the farm and exchanged several letters with appellee in regard to the condition of the farm, and title, abstract and the time when appellee could give possession, etc. In several of these letters appellee reminded appellants of the “Wehrenberg interests”, and told them he could not close up any deal with them until after the 15th of August, when Wehrenberg’s option would expire.

On August 1, 1906, appellants wrote to appellee: “Dear Sir:—I closed the deal on your place yesterday. Eeceived $100 to close the deal, balance on time to suit •at 6 per cent. Party will want possession September 1st, 1906. Please send me your abstract as he wants it examined here. He pays $2,000 cash on or before August 15th, ’06. We sold for $6,500. Keep this deal to yourself. Say nothing to Chas. W., about it. Please send abstract as soon as possible. Tours truly”. To which appellee replied, under date of August 3rd, expressing approval of the sale upon terms stated, but adding: “We cannot close this trade until after the 15th inst., unless we satisfy Mr. Wehrenberg, as he has some right to sell up to that time; however he told me recently that if I had an opportunity to sell or trade he would release me from my obligation upon the payment to him of his commission in case he found a buyer for the land. He has in some way surmised that I have sold and telephoned me that he had a buyer and seemed surprised that I offered to make a deed. I am going to Mound City to-day and see what he has, but will hold for you or until your client is informed as to the condition of title.” The party to whom appellant made the sale paid $100 down and agreed to pay the balance, $2,000, on the 15th of August, and appellee to have everything ready to close up the deal on the 16th of August. On August 14th, Wehrenberg sold the land, to which appellee made this deed, and at once so notified appellants.

Wehrenberg had the exclusive right as agent to sell the land at any time prior to August 15th, and appellee was obligated to make deed and conveyance to the buyer furnished by Wehrenberg. Appellants were informed of Wehrenberg’s right and appellee’s obligation,'by the letter of July 15th, and in the correspondence that followed we find no expression by appellee from which appellants could reasonably infer or understand that Wehrenberg’s right to sell the land had been surrendered or canceled, and it is not to be assumed, from anything contained in the correspondence, that either appellee or appellants intended wrongfully to ignore Wehrenberg in the transaction. In every letter written by appellee it is made clear that he could make no deal with appellants until after August 15th, unless released by Wehrenberg. It is apparent that the negotiations were carried on in the expectation that appellee would secure a release from Wehrenberg or that the sixty days for agency contract with him would expire without his being able to furnish a buyer.

We think it is evident from all that was done that this was the understanding of both parties to this controversy throughout the negotiations, and that the sale for which appellants claim commissions was upon condition that Wehrenberg did not sell before August 15th, at which time his exclusive agency would expiré.

There was rivalry between agents striving to sell the same property and in such case it sometimes results in a double claim against the owner for commissions, but in this case, the appellee is not so subject, for he was explicit by repeated statement that he was so obligated that he could not sell his land through the agency of appellants until the agency of Wehrenberg expired. The judgment of the Circuit Court is in accordance with the evidence and must be affirmed.

Affirmed.


text:
    William I. Miller et al., Plaintiffs in Error, v. William C. Rich et al., Defendants in Error.
    1. Appeals and errors—effect of finding of fact in chancery cause. A finding of fact by the chancellor, like the verdict of a jury, must be held conclusive unless such finding is so manifestly against the weight and preponderance of the evidence that the Appellate Court, on appeal, is clearly of opinion that injustice has been done.
    2. Account—when items not reviewed. If an error in accounting is complained of, the items allowed and objected to must be specifically pointed out and the evidence showing the validity of the objection indicated; otherwise no review will be accorded by the court.
    Bill in chancery. Error to the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Rehearing denied February 25, 1909.
    Taylor Dodd and Richard Peery, for plaintiffs in error.
    M. C. Crawford, D. W. Karraker and H. F. Bussey, for defendants in error.
   Mr. Justice Myers

delivered the opinion of the court.

In 1893, plaintiffs in error filed a bill in chancery in the Circuit Court to set aside a sale and deeds pursuant thereof to 360 acres of land in Union county, the sale having been made in 1881 by William C. Rich, Sr., as administrator of the estate of Isaac Miller, deceased. The Circuit Court decreed in favor of the defendants to the bill, but on appeal the Supreme Court reversed the decree, holding, that the sale was void, that the deeds should be set aside, and that the title to the land was in the complainants, the heirs and assigns of Isaac Miller, deceased. The cause was remanded with directions for an accounting, and being reinstated on the docket of the Circuit Court it was afterwards referred to the master in chancery to take proof, state the account and report conclusions. The master reported evidence and findings, to which exceptions were filed and the cause was brought to a hearing before the court, which by its findings and decree states the account in minute detail, allowing to the plaintiffs in error as a balance due the" sum of $546.35. By writ of error the decree of the Circuit Court, is challenged and brought to this court for review.

It is complained that the court erred in the statement of the account in that the sum allowed as a balance due the plaintiffs in error is less than should have been allowed under the evidence. The subject-matter of the controversy is an accounting by the defendants in error, for the use and occupation of land, improvements made, expenses incurred, claims allowed and taxes paid, covering a period of twenty-five years. The evidence is voluminous, consisting largely of testimony by witnesses whose memory of facts, circumstances and values was more or less dimmed by the lapse of time, and whose statements, especially as to the value of lands, rentals and crops were merely estimates and opinions, to be given such weight as the court, in considering all the evidence, thought they were entitled to.

No question of law is involved and the finding of the court upon the questions of fact, like the verdict of the jury, must be held conclusive unless such finding is so manifestly against the weight and preponderance of the evidence that this' court, on appeal, is clearly of opinion that injustice had been done. Village of Itasca v. Schroeder, 182 Ill. 192; Greensfelder v. Corbett, 190 Ill. 565. The only question made by an appeal from the finding of facts is whether or not there is evidence in the record to justify the finding.

Counsel for plaintiffs in error fail to point out in argument any single item found in statement of account, made by the chancellor, which is not authorized by evidence, nor are we in any way directed to evidence shown by abstract that will justify a modification or reversal of the decree. This court may not do the work of counsel and undertake to analyze, classify and arrange the testimony bearing upon disputed facts, in order to determine whether or not the trial court erred in its findings. Counsel have prepared a statement as they would have it, differing somewhat in form from that found by the court, but in a large part necessarily embracing the same items, and it is contended that this revised statement of account, covering nine pages of closely printed matter found in the brief, is correct, and that the court’s statement of four pages—more than 200 items—is erroneous. No basis of comparison is suggested. No conflict of evidence bearing upon the court’s finding is pointed out, and we are not disposed, unassisted by counsel, to search the record for possible error. So far as may be understood from the reading of an insufficient, unindexed abstract, and consideration of the briefs and arguments of counsel, the decree of the court is supported by the evidence, and will therefore be affirmed.

Affirmed.