text:
    Henry G. Smith, Appellee, v. Urias Eichelberger, Appellant.
    Gen. No. 5,631.
    1. Negligence—when proof of relation of master and servant unnecessary. Proof of the relation of master and servant is unnecessary, where it appears that plaintiff was employed about a corn shredder, under the direction of defendant, and when he was in a dangerous position defendant, with knowledge, negligently started part of the machinery.
    2. Master and servant—when person becomes servant. Where a servant obeys a direction, by the person who hired him, to work for such person’s father he becomes the servant of the father.
    3. Master and servant—assumed rislc. One injured by the starting of a corn shredder, while removing with his hands material which clogged it, did not assume the risk, though there was a stick provided for the purpose; where the master ordered him to remove the obstructions and saw him do so without a stick; he had done so several times before; had never seen a stick used; was not familiar with a shredder and had so informed the master.

      4. Evidence—when submission of photographs not error. Where action is brought for injuries received while cleaning out a corn shredder, it is not error to submit to the jury photographs of another shredder of the same make, where defendant’s proof shows that they fairly represent the machine on which the accident occurred. '
    5. Master and servant—instructions. An instruction which states that the relation of master and servant existed between plaintiff and defendant, if defendant’s son loaned plaintiff, with his consent, to defendant for some service and that while so working under defendant’s control plaintiff was injured, is not erroneous where from the evidence, if plaintiff was the servant of the son, it is obvious that defendant acquiesced in the loaning of plaintiff to him. ,
    6. Instructions—repetition. Refusal of an instruction, the principle of which is already given, is not error.
    7. Instructions—construed. An instruction is correctly refused which provides that plaintiff cannot recover unless he was in the employ and under the control of defendant, where recovery might be had if plaintiff was either in the employ or under the control of defendant, and where the relation of master and servant alleged in the complaint is ignored.
    8. Appeals and errors—when refusal of correct instruction will not reverse. Though an instruction to the effect that the preponderance of evidence is not alone determined by the greater number of witnesses, but the number of credible witnesses is a proper element to consider might properly have been given refusal thereof will not reverse, where it was partly covered by those given, it is clear that plaintiff has a cause of action to which there is no defense, and the damages are not excessive.
    9. Costs—additional abstract. Where a judgment is affirmed on appeal, the cost of an additional abstract filed by the appellee may be taxed to the appellant where it supplies omissions and corrects the original.
    Action in case for personal injuries. Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    S. N. Hoover, J. Bruce Amell and Harvey Gunsul, for appellant.
    Alschuler, Putman & James and Charles W. Hadley, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On November 17, 1910, plaintiff, Henry Gr. Smith, lost his right arm in a corn shredder owned and operated by defendant, Urias Eichelberger, and sued him for damages in the Circuit Court of DuPage county. The original declaration contained two counts. After-wards ten more were added, seven of which were later amended. As abstracted, the first original count charged that plaintiff was ordered to clean out the shredder and while he had his arm in the machine, defendant negligently replaced the belt, and the machine started. The second original count charged that while he was removing obstructions from the shredder with his arm in the machine, defendant, knowing his position, negligently started the machine. The first additional count charged that plaintiff was ordered into the dangerous position and then, with knowledge of his danger, defendant negligently caused part of the machinery to start. The second additional count charged the defendant with the duty to use reasonable care in operating the shredder and not to expose plaintiff to unnecessary danger; and that the defendant negligently controlled and operated the machine. The third additional count charged that defendant negligently ordered plaintiff to clean out the corn shredder, which was dangerous work, as known to defendant and unknown to plaintiff. The fourth additional count was substantially like the first additional count. The fifth additional count charged that defendant knew or should have known the danger, unknown to plaintiff, and not so apparent that a man of ordinary prudence would not expose himself to them. The sixth additional count was substantially like the fifth. The seventh additional count charged that the employment was dangerous; that plaintiff was inexperienced and ignorant of the dangers; that defendant knew or should have known the danger; that it was defendant’s duty to warn and instruct plaintiff, and that defendant negligently failed to do so. The ninth additional count charged that, defendant negligently failed to furnish plaintiff with a safe place to work. All the counts except the eight additional proceeded on the theory that the relation of master and servant existed between the parties. This count alleged that plaintiff was employed upon and about the corn shredder under the order and direction of defendant and when he was in a dangerous position, defendant, knowing the dangerous position, negligently started part of the machinery. The tenth additional count was a summary of all the additional counts except the eighth. All the counts alleged that plaintiff’s arm-was torn off by reason of the negligence of the defendant. There was a plea of not guilty. A trial resulted in a verdict of $2,000 for plaintiff. Motions for a new trial and in arrest of judgment were overruled, judgment was entered on the verdict, and defendant prosecutes this appeal.

The shredder was about 18 or 20 feet in length, about 7 feet high, and a little over 40' inches wide. It was driven by steam and had a feeding apron at the front, the upper part of which moved toward the machine like a belt, carrying stalks toward the machine. At the end of this apron were two feeding rollers placed one above the other. The feeding rollers and the feeding apron were driven by power communicated by a small belt at the side of the shredder. Behind these two rollers was a space of about 22 or 23 inches, bounded on the sides by the side of the machine, and on the front by the feeding rollers. The snapping rollers were about 22 or 23 inches back of the feeding rollers and extended across the width of the shredder. The sides and the top of the machine were boarded up and while there were some pulleys and cog-wheels on the outside of the body of the shredder, the only rollers which were in sight were the feeding rollers. About two-thirds of the shredder, from the rear forward, had a wooden covering and the rest of the top was a tin hood which was so hinged as to form a trap door in the roof of the shredder. It was curved down a few inches at the front end. There was a board, held in place by two lugs, which partly covered the open space between the tin hood and the feeding rollers, the tin hood coming down over the top and forward side of the snapping rollers, being about ten or twelve inches above them. Corn and corn stalks would, at times, clog in this open space between the feeding rollers and the snapping rollers. Appellee had been in the service of appellant, or his son George, for less than three days. On the first two days and until about 10 o’clock of the third day he was employed in hauling the corn from the machine to the crib, after which he was set to work at tending the machine. He came from a state where little corn was raised and had never seen a corn shredder before this time, and so informed appellant. The machine became clogged. He was directed to remove the obstruction. He proceeded to do so in the presence of appellant in the way he had cleaned it out three times before, once with the assistance of appellant’s son Abe. He got upon the machine, knelt down on the tin hood and removed the corn with both hands, then placed his left hand upon the feeding roller and with his right hand threw out the corn and stalks. While in that position, the feeding roller suddenly started, throwing him down onto the roller and his right hand was drawn into the snapping rollers, and in his efforts to get out his right arm was torn off, necessitating amputation within six inches of the shoulder.'

Appellant contends that the declaration avers the relation of master and servant, and that the proof shows that appellee was not his servant and that therefore the judgment must be reversed. If the proof sustained the averment of the 8th additional count, the proof of the relation of master and servant was not necessary. The evidence shows that appellee and a companion came to Naperville from an employment agency in Chicago with letters addressed to George Eichelberger, a son of appellant; that appellant met them and took them to his home, and that on the following morning George said that he did not want two men and took the companion to his home, and appellee remained with appellant and worked on the shredder under his orders. Even if the proof did show that appellee was originally hired by George, yet it is not denied that George directed him to work for appellant and that he obeyed that direction. This. made him the servant of appellant. Consolidated Fireworks Co. v. Koehl, 190 Ill. 145. The rule above mentioned was approved and followed in Grace & Hyde Co. v. Probst, 208 Ill. 147.

There was proof that there was a stick sometimes used to remove the material that clogged the shredder. It is claimed that appellee assumed the risk because he did not use the stick. There was proof that on the day of the accident he and appellant’s son, Abe, removed obstructions without using a stick, and appellee testified that he had seen Abe do so several times before, and that he never saw a stick used in removing the obstructions. Appellant ordered appellee to remove the obstructions, stood by and saw him do it, and did not interrupt his doing it without a stick nor direct him to use one. Appellee, not being familiar with a shred-, der, of which fact he informed appellant, it seems clear to us that he did not assume the risk.

There was proof for appellee that the board over the opening between the feeding rollers and the tin hood was not in place at the time of the accident, and there was proof for appellant that it was in place. The distance through which the obstructions would have to be removed if the board were in place was but four or five inches, while if not in place, the distance would be from twelve to eighteen inches. If the board ■ had been in place it would have been practically impossible for appellee’s hand to have been caught in the snapping rollers.

Appellee was not warned by appellant of the danger of putting his hand into the place where he was removing the obstructions. He testified that he did not know it was dangerous. The feeding device was not m motion when he put his hand into the machine, and there is proof that appellant started the machinery while appellee was in this position. From a careful consideration of all the evidence, we think the jury were warranted in finding that it was negligent for appellant to order appellee to perform this dangerous work without explaining to him the danger; that it was negligent for appellant to start the machinery while appellee was removing! the obstructions; and also that appellant negligently failed to provide appellee with a reasonably safe place in which to work.

Appellee offered in evidence several photographs, of another corn shredder of the same make to illustrate the appearance of the machine in question. They were objected to as not being properly identified as true representations of the machine in this case. Defendant’s own proof shows that they were fair representations of the machine on which the accident occurred. There was no error in submitting them to the jury to be considered in connection with other evidence in the case. Kankakee & S. R. Co. v. Horan, 131 Ill. 303; Illinois S. R. Co. v. Hayer, 128 Ill. App. 315.

It is argued that it was error to give appellee’s 7th instruction, which told the jury that if they believed from the preponderance of the evidence that George Eichelberger loaned appellee to appellant, with appellee’s consent, for some particular service to be rendered under the direction and control of appellant, and that while so loaned and while working under the control of appellant, appellee was injured, then, as a matter of law, the relation of master and servant existed between them at the time of such injury. It is argued that this instruction ignores the necessary element of assent on the part of appellant, and that there was no evidence tending to show that appellant ever assented to such loaning. In Ramsey’s Estate v. Whitbeck, 81 Ill. App. 217, the court says: “To loan, according to Webster is ‘to deliver to another for temporary use, on condition that the thing be returned, or to deliver for temporary use on condition that an equivalent in kind shall be returned with a compensation for its use.’ ” 5 Cyc. 166. A loan is a bailment, and one essential of a bailment is an acceptance of the subject-matter. Taking property into possession or control is a sufficient acceptance. 5 Cyc., supra. The evidence is undisputed that Greorge said to appellee, “You stay here and help father. ’ ’ He did stay there, and worked under the direction of appellant at and prior to the time of the injury. If, in fact, appellee was the servant of G-eorge, it is obvious from the evidence that appellant acquiesced in the loaning of appellee to him, and there was no error in giving the instruction.

The trial court refused four instructions requested by appellant. The first was that the burden of proof, was on appellee to prove his case by a preponderance of the evidence. The same statement was contained in appellant’s 14th, 15th, and 16tK given instructions, and it was not error for the court to refuse an instruction containing a principle already given to the jury. The court is not required to give the jury more than one instruction upon a particular subject. National Enameling & Stamping Co. v. McCorkle, 219 Ill. 557.

The second refused instruction told the jury that unless they believed from the evidence that appellee was in the employ of appellant and under his control and direction, he could not recover. This instruction was bad for three reasons: first, if appellee was either in the employ of appellant or under his control or direction, he might recover (Grace & Hyde Co. v. Probst, supra); second, this instruction combined two elements, employment and control, and told the jury that unless they believed that both elements were established, appellee could not recover, while under the evidence and other instructions the jury were authorized to find for appellee if they believed either that there was an employment or control, as explained in the other instructions; third, it ignored the relation of master and servant, and directed a verdict against appellee, regardless of the averments of the 8th additional count.

The third refused instruction was bad for like reasons.

The fourth refused instruction was as follows:

“The court instructs the jury that while the preponderance of the evidence is not alone determined by the greater number of witnesses testifying the one way or the other, yet the number of credible and disinterested witnesses, testifying on the one side or the other, is a proper element for the jury to consider in determining where lies the preponderance of the evidence.”

We think this instruction should have been given. It is, however, covéred in part by appellant’s 17th given instruction. This fourth refused instruction has been disapproved sometimes by the Supreme Court, but no case has been reversed on account thereof. In Elgin, J. & E. R. Co. v. Lawlor, 132 Ill. App. 280, we took the ground that where the instruction said, as here, that the preponderance of the evidence is not alone determined by the number of witnesses, it sufficiently advised the jury that the number of witnesses is one of the elements to be taken into consideration, notwithstanding that element is not restated in a second part of the instruction. On appeal, the Supreme Court did not take exactly that view, but did not reverse the judgment. Elgin J. & E. R. Co. v. Lawlor, 229 Ill. 621. While we would be better satisfied if this instruction had been given, yet it is clear to us that appellee has a cause of action to which there is no-defense, and the damages are not excessive. We therefore conclude that we ought not to reverse the judgment because of the refusal of the fourth instruction.

The original abstract did not contain a marginal paging and reference to the record, required by Rule 16 of this court. 137 Ill. App. 625. It was otherwise defective in many particulars. A motion was made to strike it from the files. We permitted it to be amended in ink by placing the page of the record upon the marginal pages of the abstract, and denied the motion. We did not then examine the abstract carefully enough to realize its many defects. If we had we should have stricken it from the files. Appellee filed an additional abstract, supplying omissions and correcting the original in many particulars, and its cost is ordered taxed to appellant.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Albert C. Henke, Appellee, v. Deere & Mansur Co., Appellant.
    Gen. No. 5,655.
    1. Evidence—when photograph admissible. A photograph stands on the same footing as a diagram or map and is a legitimate mode of proving conditions which can be thus represented.
    2. Evidence—preliminary proof as to correctness of picture. Preliminary proof of the correctness of a picture is addressed to the court, and as a rule its discretion is not subject to exception.
    3. Evidence—when photograph may be misleading. A photograph of a machine taken soon after an injury thereon may he misleading where a machinist and another appear in the same relative positions which such machinist and the person injured occupied at the time of the injury.

      4. Evidence—when photographs competent. Photographs of a machine and its surroundings made by an experienced photographer, about three hours after an accident before any changes were made are competent and valuable where the negligence charged involves the machine and scrap iron on the floor about it.
    5. Evidence—harmless error. Error in excluding photographs need not reverse where they were only supplemental to the oral testimony.
    tí. Evidence—when exclusion of testimony as to wages after accident reversible. In an action for injuries to a minor’s hand, exclusion of statements by him as to what he has earned since the accident is reversible error when' offered by defendant since such evidence tends to show the extent his earning power may be impaired after his majority.
    7. Instructions—referring to facts and circumstances appearing on the trial. In an action for personal injuries, an instruction to the effect that if the jury believe from the evidence and the facts and circumstances appearing on the trial that the plaintiff knew, or by reasonable care might have known, of the hazard at and immediately prior to the time of accident he cannot recover, though they believe from the evidence and facts and circumstances appearing on the trial that there was a safer way of conducting the business plaintiff was engaged in that might have prevented the injury, is properly refused, though if the misleading element, which refers the jury to the facts and circumstances appearing on the trial, is omitted the instruction is correct.
    Action in cáse for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Peek & Dietz, for appellant.
    John K. Scott, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On July 31, 1909, appellee, then 16 years of age, was working as a machinist’s helper at an iron shearing machine in the shops of appellant. In passing an oil can with his left hand to the machinist, he slipped upon some iron scraps that had accumulated about the machine, and in endeavoring to save himself from falling, thrust his right hand into the gears of the machine and received injuries necessitating the amputation of the first and second fingers and the first joint of the third finger. He sued appellant to recover for such injuries. The declaration described the machine and alleged that appellee was directed to assist in operating it; charged appellant with the duty to provide appellee with a safe machine to work upon, and safe surroundings ; averred that appellant negligently permitted scraps to accumulate about the machine and negligently left the gears unguarded and negligently failed to warn appellee of the danger, and while he was in the exercise of due care and caution for his own safety, his foot ‘slipped upon the scrap and he unavoidably placed his hand in the machine. A plea of not guilty was interposed. Upon a trial, appellee obtained a verdict for $5,000. A motion for a new trial was overruled, judgment was entered on the verdict, and this appeal is prosecuted to review the judgment.

The case must be remanded for a new trial, and we therefore refrain from an expression of any opinion upon the facts which might prejudice either party on the next trial.

Appellant offered in evidence and the court refused three photographs of the machine upon which appellee was hurt, designated in the record as “A,” “B,” and “C.” Photographs stand on the same footing as a diagram, map, plan or model, and a photograph is a legitimate mode of proving conditions which can be shown by a representation of that sort. It rests to some extent upon the credit of the witnesses in the same way as a map, plat or plan. Greenleaf on Evidence (16th Ed.) 546. The preliminary proof of the correctness of the picture, the ability of the operator, and the accuracy of the instrument is addressed to the court, and as a rule its discretion thereon is not subject to exception. Cleveland C., C. & St. L. R. Co. v. Monaghan, 140 Ill. 474, 477, and cases there cited. The proof shows that the photographs in this case were taken by an experienced photographer about three hours after the accident; that there were no changes in the machine or its immediate surroundings except in photograph “A” in which the machinist and another man appear in the same relative positions as the machinist and appellee were alleged to have been in at the time of the injury. It is possible that photograph “A” might have been misleading, but photographs “B” and “C” were competent and valuable evidence, as the negligence charged involves not only the machine but the presence of the scrap iron on the floor about it. In Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89, the court said: “The photographs were an important means of proving the condition of the track, and, under the circumstances, we think the defendant had a right to have the jury see them in connection with the other evidence, and it was error to exclude them. ’ ’ Under the evidence and the authority of the Wilson case, supra, we think the court should have made an exception to the rule announced in 140 Ill. 477, supra, and admitted photographs “B” and “C” in evidence, but as they were only supplemental to the. oral testimony, we would not reverse the judgment for that error alone.

Appellee testified in chief that after the injury he worked in several places; that he quit one place because he could not stand the work, but gave no reason for quitting the other places. He testified that he was earning $1.50 per day at the time of the accident, but was not asked what he earned after the accident. He was called by appellant and asked this question and answered that at one place he earned from $1.75 to $2.00 per day and at another place he earned $2.00 per day. An objection to this testimony was sustained. Appellee’s counsel then moved to exclude the testimony and the court excluded the last answer and appellant excepted. By excluding only the last answer, the court did not exclude the answer that appellee earned $1.75 to $2.00 per day at one of the places, but it is clear from the statement of the court “I don’t see how it is admissible,” that the court meant to exclude all the evidence on that subject and that it must have been so understood by counsel and the jury. It is true, as the court held, that at that time appellee was not entitled in law to receive his wages, but this evidence was clearly competent as tending to show to what extent his earning capacity might be impaired after he reached his majority, and we think its exclusion was reversible error.

Complaint is made of appellee’s first instruction as modified and given by the court. One of the grounds of defense was the assumption by appellee of the risk of the employment. This instruction directed a verdict. It did not define the doctrine of assumed risk, but told the jury that they might find the defendant guilty if they believed from the evidence, among other things, “that the plaintiff had not assumed the risk of such injury as such assumption of risk is defined and set forth in any one of the four instructions next following.” The instructions so referred to do sufficiently define the doctrine of assumed risk as applied to the evidence in this case. However, the instruction is faulty in that it assumes that appellant was negligent and does not require the jury to find whether or not the negligence of appellant was the proximate cause of the accident.

Complaint is also made of the refusal of appellant’s 9th, 11th, 15th and 17th instructions.

The principles of law stated in the 9th, 11th and 15th were fully set forth in the other given instructions.

The refusal of the court to give appellant’s 17th instruction, in our opinion, constitutes further error. The instruction was as follows:

“The court instructs the jury that, if you belive from the evidence and the facts and circumstances appearing on the trial, that the plaintiff, Albert Henke, at the time he was injured knew, or by the exercise of reasonable care might have known, of the hazard of his employment while working for the defendant, Deere & Mansur Company, at and immediately prior to the time of the accident, then he cannot recover in this case, even though you may believe from the evidence and the facts and circumstances appearing on the trial that there was a safer mode in which the business that the plaintiff was engaged in at the time of the accident might have been conducted, the adoption of which mode might have prevented the injury.”

This instruction invoked the defense that if appellee knew the hazards of his employment in the manner the business he was engaged in was conducted, he could not recover merely because a safer method of conducting the business might have been adopted, the adoption of which would have prevented the injury. A defense of that kind (stated generally) is a good one in a proper case. Simmons v. Chicago & T. R. Co., 110 Ill. 340, 347; Stafford v. Chicago, B. & Q. R. Co., 114 Ill. 244; U. S. Rolling-Stock Co. v. Wilder, 116 Ill. 100; East St. Louis Ice & Cold Storage Co. v. Crow, 155 Ill. 74; Elgin J. & E. R. Co. v. Myers, 226 Ill. 364; Casey v. Reedy Elevator Mfg. Co., 142 Ill. App. 126. The question whether there was an assumption by appellee of the risk of being injured in the manner he was, was an exceedingly close one in the case. But the instruction referred the jury not only to the evidence, but also to “the facts and circumstances appearing on the trial,” and the jury might be misled into supposing that they were permitted to resort to some other source than the evidence in determining the facts. There are cases where an instruction of this kind has been approved, but it has also been questioned and criticised where attacked on the ground above stated. If the instruction had not contained this misleading element it should have been given, but for the reason stated we do not regard its refusal as reversible error.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Andrew P. Fragd, Appellant, v. Estate of Mary A. Fragd, deceased (John T. Deemar, Appellee).
    Gen. No. 5,662.
    1. Administration of estates—court order construed. A circuit court order concerning a county court judgment allowing an executor’s claim against the estate, which provides that the claim be held in abeyance until the final report is made by the executor and heard on notice to all interested, seems to mean that the claim shall be reheard in the county court, and if so it should have set aside the allowance of the claim.
    2. Administration of estates—order of circuit court 'fixing time of hearing of executor’s claim error. It is error for the circuit court in ordering a rehearing of an executor’s claim against the estate to fix the time when the county court should hear the claim.
    3. Executors and administrators—duties. An executor occupies a fiduciary relation to the heirs and legatees of the estate and it is his duty to protect their interests against claimants, especially when he is a claimant.
    4. Executors and administrators—when under county court’s jurisdiction. Notice to creditors by an executor as to the time for the presentation of claims brings a legatee within the county court’s jurisdiction for that time only.
    5. Executors and administrators—when allowance of claim against estate fraudulent. A holding that the allowance of an executor’s claim against the estate was fraudulent is justified where it seems that it was such executor’s intention to secure its allowance without the knowledge of the residuary legatee, since he filed it after the time fixed for the presentation of claims and without notice to the residuary legatee, though he was aware of its existence at that time and the claim as filed affords no light to any one who might dispute it.
    6. Executors and administrators—allowance of executor’s claim against estate. Presentation and allowance of an executor’s claim against the estate, after the time fixed for such presentation and without notice to the residuary legatee, is a violation of the executor’s duty to the legatee.
    Appeal from the Circuit Court of Henry county.; the Hon. Prank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed with directions.
    Opinion filed October 15, 1912.

      Chester M. Turner, for appellant.
    Charles R. W. Whitman, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Mary Aun Fragd died testate September 20, 1909, leaving no descendants. By her will she made certain gifts to a niece and to an adopted daughter of a former husband, and bequeathed and devised the remainder of her property to her husband Andrew Peter Fragd, for his natural life and after his death the same to become the property of her nephew, Dr. John T. Deemar, or in the event of his death, then to his children, and appointed her husband as executor. The will was duly probated on October 28, 1909, and her husband qualified as executor and as such gave notice to the creditors to file their claims for the January term, 1910, of the County Court of Henry county. On January 18, 1910, he renounced the will and elected to take under the statute, which would give him all the personal estate and the fee to one-half the real estate left by the deceased, subject only to the payment of her just debts. On October 27,. 1910, between nine and ten months after the adjustment day, he filed a claim against the estate for $2,146; $1,500 as cash loaned to deceased to apply on the purchase of property, $600 as cash loaned Oscar Anderson at the request of the deceased on her promise to pay it, and $186 as interest, $140 of which had been paid. One Joseph L. Shaw was appointed as special administrator to defend the estate against said claim. He gave no notice of the pendency of the claim to the residuary legatee who lived in Pennsylvania. On November 21, 1910, the "special administrator consented that the claim be allowed for the full amount and judgment was entered thereon. Afterwards Deemar filed a petition to have the judgment set aside on the ground that it was fraudulently obtained. The County Court denied the petition and Deemar appealed from that order to the Circuit Court of said county. On the trial a stipulation was made as to various facts, and oral proof was offered and the court entered the following order. “It is ordered by the court that the claim he held in abeyance and not paid or credited until the final report is made by the executor and heard upon notice of hearing to all parties interested.” From that order the executor appeals to this court, at least the record recites that the executor excepts and prays an appeal, which was granted on his filing a bond. The bond filed is the personal bond of Andrew P. Fragd and contains no allusion to the fact that he is executor. Treating the appeal, however, as proper, appellee insists that the order is not final and that the appeal should be dismissed, or in case it is not dismissed it be affirmed.

Counsel for appellant say in argument, there is but one question in the case and that is whether or not there was fraud or fraudulent collusion in the allowance of the claim; that no fraud or fraudulent collusion was proven and therefore the court erred in directing the claim to be reopened, and the order should he reversed.

From the wording of the order it is not clear whether it means the claim should be held in abeyance until the final report is heard, or whether it means that there shall he a rehearing in the claim. We are of opinion, however, that the meaning of the order is, in effect, that the claim shall be reheard in the County Court. If our conclusion is right, then the order should have specifically set aside the allowance of the claim, and the Circuit Court erred in fixing the time when the court should hear the claim.

The claim as filed affords no light to one who would, dispute it. It does not show the date when the money was loaned, or what property it helped to purchase. It does not show when the alleged loan of $600 was made to Anderson and in what form deceased agreed to pay the same to appellant. It does not show the rate of interest which appellant employed in computing the item of $186 of alleged interest. It does not show the name of the person from whom the $140 was received.

Anderson may have been paying his own interest to appellant. It does not show whether or not the items of the claim were barred by the statute of limitations. The alleged agreement of the deceased to answer for Anderson’s debt may be void under the statute of frauds. Anderson may be able to pay his own indebtedness. Shortly before the death of Mrs. Fragd she conveyed real estate to the claimant which he has since sold for $48,000.

Appellant, as executor, occupied a fiduciary relation to the heirs and legatees of the Fragd estate. It was his duty to protect the interests of the heirs and legatees against that of claimants and especially so when he himself appears as a claimant. The notice to creditors of the time fixed for the presentation of claims, brought appellee within the jurisdiction of the County Court for that time; and for that time only. Appellant Was, at that time, as fully as at any other time, aware of any existing indebtedness of the estate to him. His neglect to file a claim within the period fixed tends to give rise to the presumption that either his claim is born of an afterthought, or that he was seeking opportunity to obtain a hearing when appellee could not oppose him. The presentation and allowance of his claim, without notice to appellee, was clearly a violation of the duty which appellant as executor owed appellee.. The special administrator acted as attorney for the executor. Apparently this claim, filed at a late day, without notice' to the only interested party except the claimant, was calculated to enable him to absorb all or nearly all of the estate which he did not take under the statute by reason of his renunciation. We are of the opinion that all the circumstances considered, it was the intention of the claimant to secure the allowance of the claim without the knowledge of the residuary legatee who would be bound thereby, so far as the personal estate is concerned, and that the trial court would have been justified in holding that the allowance of the claim in the County Court was fraudulent.

Inasmuch as the order is indefinite and may lead to doubt as to the meaning in the County Court, the order is reversed with directions to the Circuit Court to enter an order-vacating the allowance of the claim by the County Court, and directing that court to proceed to another hearing of said claim after due notice, not only to the special administrator and the claimant, but also to the residuary legatee. The costs of this appeal will be adjudged against appellant.

Reversed with directions.


text:
    E. P. Harney, Appellee, v. Estate of Isaac McCann, deceased (Hubert Lee, Appellant).
    Gen. No. 5,664.
    1. Witnesses—competency. The payee of a check is an incompetent witness on claim based thereon after the death of the maker.
    2. Consideration1—-presumption of for check. It is presumed that a check is given to pay an existing debt or that money was paid for it at the time.
    3. Administration of estates—check as claim. The testator’s check presented as a claim against his estate imports consideration, and the plea of lack of consideration is not sustained in the absence of proof.
    4. Attorney and client—when rule as to dealings between does not apply. Where a claim is made by an attorney against an estate, based on the testator’s bank check, and there is no proof that the check grew out of any transaction in which he was dealing with the testator’s property, the rule as to dealings between attorney and client relating to the client’s property does not apply.

      5. Administration—evidence of claim,. Where testator’s check for $1,000 is presented as a claim against his estate, it is a reasonable inference that a check referred to by the testator in speaking to the claimant was the check in suit, in the absence of proof that any other such check was given and where testator stated that he should have paid the check for $1,000 long ago and that he would pay it soon.
    6. Bills and notes—when drawer of check recognizes indebtedness and promises to pay. Where the drawer of the check states to the payee that he should have paid it before and that he would soon, it appears that he recognizes the indebtedness and that the delay in payment was caused by him, and that he expressly promises to pay.
    7. Bills and notes—when presumed that maker of check is liable. Where a subsequent promise to pay a check is made by the maker thereof with knowledge of the facts, it will be presumed that the promissor was liable and that all conditions necessary to fix his liability were complied with.
    8. Administration op estates—presentation of claims. Where claims are filed in the county court against an estate, all pleas are presumed to be orally interposed.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    W. B. Hunter, L. H. Bancroft and O. M. Clay Buntain, for appellant.
    J. Bert Miller and T. W. Shields, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On March 21, 1910, Isaac McCann died testate. On May 2, 1910, his will was admitted to probate in the County Court of Kankakee County and letters testamentary issued to Jeanette McCann. On May 9, 1910, appellee, E. P. Harney filed a claim against Mc-Cann’s estate, based on a bank check for $1,000, dated June 1, 1900, drawn on the Momence Banking Company. The executrix consented to the allowance of the claim. Appellant, Hubert Lee, residuary legatee under McCann’s will, objected to its allowance, and on a jury trial the court directed a verdict and entered judgment disallowing the claim. Harney appealed to the Circuit Court of said county where he obtained a verdict for $1,000, the face of the check. Judgment was entered on the verdict, and the residuary legatee prosecutes this appeal.

The proof is that appellee was the attorney for Mc-Cann at the time the check was given; that the body of the check is in the handwriting of appellee and signed by McCann as maker; that the hank upon which the check was drawn was solvent; and for a month and twenty days after it was drawn McCann had more than sufficient funds in the bank to pay the check; that McCann was prompt in paying his debts; that the bank continued solvent until it was absorbed by another bank which assumed all its obligations and has always been solvent. There was no proof that the check had ever been presented to either bank for payment. The drawer sustained no loss by the failure to present the check to the hank. The death of McCann made appellee an incompetent witness.

The check was in the possession of appellee. Possession implies ownership. The presumption obtains that a check is given in payment of an existing debt or that money has been paid for it at the time. Kinahan v. Butler, 133 Ill. App. 459.

This being a claim filed in the County Court against an estate, all pleas are presumed to be orally interposed. But the plea of a lack of consideration is am affirmative plea. The check imported a consideration (Martin v. Martin, 202 Ill. 382), and it was for defendant to support its plea, and no proof of a lack of consideration was introduced. That plea therefore was not sustained. Stacker v. Hewitt, 2 Ill. (1 Scam.) 207; McMicken v. Safford, 197 Ill. 540. There is no proof that this check grew out of any transaction in which the attorney was dealing with the property of his client, and the rule relating to' dealings between attorney and client in relation to property of the client, does not apply. Ward v. Yancey, 78 Ill. App. 368. In addition to the presumptions that obtain in favor of appellee, H. E. Vail testified for him that in the summer of 1907 he heard McCann say to appellee: “Ed, I received your letter and I ought to have paid that $1,000 check long ago, but I will pay it soon now,” to which appellee replied: “All right, Isaac, I know you will.” This answer is not completely set out in the abstract. Vail did not tell appellee that he had overheard this conversation until after the trial in the County Court. For appellant one John Shortridge testified that Vail told him a short time after the trial in the County Court that he knew nothing about the check. From Shortridge’s testimony it appears that Vail was intimate with appellee and that Shortridge was not on good terms with appellee and that Short-ridge desired that appellant should prevail in the suit. In the absence of proof that McCann' had ever given appellee another check for $1,000 we think the jury, if they believed Vail’s testimony, might reasonably draw the inference that this conversation referred to the check in suit.. Vail’s testimony if true, shows that McCann recognized "this indebtedness to appellee and shows that the delay in the payment of the check was caused by McCann and also shows his express promise to pay it. The drawer of a check or bill of exchange may waive the presentment of the same. Curtiss v. Martin, 20 Ill. 557; Brower v. Rupert, 24 Ill. 182. A subsequent promise having been made by the maker with a knowledge of the facts on his part, it will be presumed that the promissor was liable and that all conditions necessary to fix his liability have been complied with. Tobey v. Berly, 26 Ill. 426; 29 L. R. A. 306, notes. But such promise is presumptive and not conclusive evidence and raises a question of fact for the jury to determine. 8 Cyc. 242. It is true that Shortridge’s testimony tended to impeach the testimony of Vail so far as it related to the conversation between McCann and appellee. This raised the question, of the credibility of their testimony .which was also for the jury to determine. They evidently believed Vail. The denial of the motion for a new trial shows that the trial judge believed Vail, and from a careful consideration of the testimony as it appears in the record, we cannot say that Vail’s evidence is not credible and of sufficient weight to warrant the jury in their finding!

The instructions were in the main favorable to appellant and the jury having found the facts in favor of appellee, we see no reason for disturbing the judgment, and it is therefore affirmed.

Affirmed.


text:
    D. A. Anderson, Appellant, v. Charles H. Baker et al., Appellees.
    Gen. No. 5,665.
    1. Statutory law—construction. A statute will be given prospective force only, unless a purpose to give it retrospective force is expressed in the act itself, or is to be inferred therefrom by necessary implication.
    2. Attorney and client—Hen law construed. The provision in the attorney’s lien law “that attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection,” creates a lien upon all such claims during the preliminary stages and before suit or action is brought.
    3. Attorney and client—Hen law. The provision in the attorney’s lien law with reference to claims, etc., “or upon which suit or action has been instituted,” continues the lien after the bringing of suit and also gives a lien to a lawyer who comes into a case after suit is begun.
    4. Attorney and client—lien laio. The provision of the attorney’s lien law giving liens for services “rendered or to be rendered” does not express an intention to give the law a retrospective effect, but refers to the time when the lawyer is using the law to enforce his lien.

      5. Attorney and client—liens. The attorney’s lien law providing that attorneys “shall have a lien upon claims which may be placed in their hands” indicates that the subject-matter to be covered by the lien is not past but future.
    6. Attorney and client—liens. The attorney’s lien law was not intended to have retrospective force, although it was intended to cover almost all classes of work done by the attorney from the time the matter is placed in his hands until its termination.
    7. Statutory law—lien act creates new right. An act giving a lien does not give a remedy, but creates a new right in the property of another.
    8. Statutory law—power to enact retrospective laws. Where a contract is. made for legal services at a time when there is no law giving the attorney a lien on any property therefor and no lien is contemplated, the legislature has no power to create a lien under such contract.
    9. Contracts—abridgment by statute. The principle that the legislature cannot abridge contractual relations is subject to no modifications.
    10. Attorney and client—lien. Where a contract is made for legal services prior to the attorney’s lien law and notice is given to the defendants after the enactment thereof as to the terms of the contract, the attorney’s rights rest entirely on the contract, and if he cannot bind his clients under the lien act he cannot bind defendants who are entitled to every defense the clients could interpose.
    11. Attorney and client—lien. Under the attorney’s lien law a lien cannot be enforced for services performed before its enactment, since its enforcement would charge am additional incumbrance upon the property and change contractual relations and not merely extend the attorney’s remedy.
    Appeal from the Circuit Court of Grundy county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    William H. Boys and D. B. Anderson, for appellant.
    C. F. Hanson and Duncan, Doyle & O’Conor, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant entered into a contract with certain heirs at law of Laura A. Groold, deceased, to perform certain legal services.- Thereafter, on May 10, 1907, he filed a bill in the Circuit Court of Grundy county in behalf of said heirs at law to set aside her will, making the devisee, legatees and executor defendants. Later, without the consent of appellant, the parties settled the suit for a certain sum of money. Prior to the settlement, appellant had notified the defendant that he had made a contract with the complainants, whereby he was to have one-half of whatever was recovered on account of such suit, and that he claimed a lien therefor under the attorney’s lien law in force July 1, 1909. After the settlement, and by leave of court, appellant filed an intervening petition asking that the rights arising under the lien be adjudicated and his lien enforced. On notice all the parties appeared and moved the court to dismiss the petition. The motions were granted and the petition dismissed at the costs of appellant, and he prosecutes this appeal.

The only question presented for our consideration is whether an attorney is entitled to a lien upon the property of his client by virtue of a contract entered into prior to the passage of the attorney’s lien act.

The act creating an attorney’s lien provides:

“That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated demands, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands, or causes of action; Provided, however, such attorneys shall serve notice in writing upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands, or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands, or causes of action, from and after the time of service of the aforesaid notice. On petition filed by such attorneys or their clients, any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation.”

Appellant contends that the act, by its express terms, is retrospective; that it is remedial, and that the court erred in dismissing the petition.

Appellant argues that if the legislature had not intended to give a lien based upon contracts entered into prior to the enactment of the lien act, the words, “or upon which suit or action has been instituted” would have been made to read, “or upon which suit or action shall be instituted” and the words, “may have been agreed upon” would have read, “may hereafter be agreed upon” or “may be agreed upon;” that the act also expressly gives a lien for services already rendered, as well .as for services to be rendered, relying upon the words, “for the services of such attorneys rendered or to be rendered,” and that if a lien was intended only for services rendered after the enactment of the law, this clause would have read, “for the services of such attorneys hereafter rendered or to be rendered,” or if the words, “rendered or to be rendered” were intended to mean rendered prior to or subsequent to the notice, the legislature would have so repressed it; that unless retrospective construction is given to the act, the words quoted could be given no meaning in construing the act, and the well known rule of construction that courts must give meaning to every word in the law would be violated, and that to permit any other construction it would be necessary to alter the wording of the act.

Were it the rule that a statute should be construed retrospectively unless a contrary intention is manifested by words of the act itself, then there would be much force in that portion of appellant’s contention. The contrary, however, is the rule, and it is a universal rule of construction that a statute will be given prospective force only, unless a purpose to give it a retrospective force is expressd by a clear and positive command in the act itself, or unless it is to be inferred by necessary, unequivocal and unavoidable implication from the words of the act.

In the case of Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553, it is said: “It is well settled by authority that statutes are not to be given a retrospective operation except where it is manifest the legislature intended they should have such operation; and, as already shown, it is not competent even for the legislature to give such operation to an act where it will affect existing or vested rights.”

In Means v. Harrison, 114 Ill. 248, it was declared to be the general rule “that a statute is to operate in futuro only, and is not to be construed to affect past transactions, and that if it is left doubtful what was the real design as to its having a prospective or retroactive effect, the statute must be so construed as to have a prospective effect only.”

In People v. McClellan, 137 Ill. 358, the court said: “In Potter’s Dwarris on Statutes, p. 162, in a note, it is said: ‘The American authorities are quite uniform on the retroactive effect of statutes. The general rule is, that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, right of action or suits, and especially vested rights, unless the intention that it shall so operate is expressly declared; and courts will apply new statutes only to future cases, unless there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. And although the words of the statute are broad enough, in their literal extent, to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.’ ” Citing Thompson v. Alexander, 11 Ill. 54; People v. Thatcher, 95 Ill. 109. The same rule of construction is announced in Hatcher v. Toledo, W. & W. R. Co., 62 Ill. 477; Jimison v. Adams County, 130 Ill. 563; Porter v. Glenn, 87 Ill. App. 106.

This doctrine is recognized and indorsed in the case of Rock Island Nat. Bank v. Thompson, 173 Ill. 593, where it is said: “Retrospective laws are not looked upon with favor. Statutes are usually construed as operating on cases which come into existence after the statutes are passed, unless a retrospective effect is clearly intended.” Citing Endlich on Interp. of Statutes, secs. 271, 273, 275, 276; Betts v. Bond, Breese, 287; Thompson v. Alexander, 11 Ill. 54; In re Tuller, 79 Ill. 99.

In O’Donnell v. Healy, 134 Ill. App. 192, the court said: “In Endlich on the Interpretation of Statutes, section 271, it is said: 'They are construed as operating only on cases or facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. ’ In the same section the author says: ‘A construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute, taken by themselves and in connection with the subject-matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question of such intention. ’ ’ ’

We think the words, “That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages which may be placed in their hands by their clients for suit or collection,” creates a lien in favor of lawyers upon all claims, demands and causes of action during the preliminary stages and before suit or action is brought. Had there been no further provision, the lien of the lawyer would terminate with the beginning of the suit, or at least there would be a serious doubt whether the lien continued after the institution of the suit or cause of action. The following words of the statute, “or upon which suit or action has been instituted,” continues the lien and makes it operative after bringing the suit. The words last quoted also give a lien to a lawyer who comes into a case after the beginning of the suit. We do not think it can be said that these words clearly and unequivocally express a purpose or intention on the part of the legislature to make this law applicable to contracts entered into by attorneys, and to suits or actions brought by them before the enactment of the law.

It seems to us untenable that the words, “rendered 'or to be rendered” express an intention to give the law a retrospective effect and force. The lawyer has a lien for services rendered or to be rendered. Rendered when? Appellant contends at any time in the past, regardless of the time of the taking effect of the statute. Appellees contend that it means for services rendered at any time after the taking effect of the law and before the time when the lawyer uses this statute as a weapon to collect his compensation. We hold that the words, “rendered or to be rendered” have reference to the time when the lawyer is using this law as a weapon, and if the word “rendered” were omitted, the lawyer could not enforce a lien for services rendered up to the time that he served notice under the statute, but would only have a lien for services “to be rendered” thereafter. Suppose further that the words “to be rendered” were omitted from the statute, then the lawyer would have a lien only for work already performed and if the suit were settled by the client after its institution, without the consent of the lawyer, the lawyer would have a lien only for work actually done up to the time of the settlement. Such a law could afford but. very little protection to the lawyer.

The act provides: ‘“That attorneys at law shall have a lien;” not that attorneys at law have a lien, but “shall have a lien.” The use of the verb clearly indicates that the subject-matter to be covered by the lien is not past but future. Shall have a lien upon what? “Upon all claims, demands, and causes of action, including all claims for unliquidated demands which may be placed in their hands. ’ ’ Placed in their hands when? Before the passage of the act or after the passage of the act? The act states plainly “which may be,” not which have already been placed in their hands.

The legislature, no doubt, intended to make the act broad enough to cover almost all classes of work done by a lawyer for a client, from the time the work is placed in his hands until the termination of the matter by litigation or otherwise. Such an intention would cause the act to operate in favor of the lawyer during the preliminary stag'es of the work, as well as after bringing the suit, and until its termination. It is our opinion, however, that the legislature did not intend that the act should apply to work done and contracts entered into by a lawyer prior to its enactment, but it was intended to apply only to contracts entered into and to work done after the statute went into force. We think there is no warrant for appellant’s contention that the statute gives it a retrospective effect or force.

We come now to the argument that the act is remedial only, and therefore is retrospective. When the legislature enacted the mechanic’s lien law they declared it to be remedial, but the Supreme Court held that it was not remedial where it affected contracts entered into prior to its enactment. Kinney v. Sherman, 28 Ill. 520; Andrews & Johnson Co. v. Atwood, 167 Ill. 249. The wording of that act, to all intents and purposes, was as broad as the act under consideration, yet the legislature declared its intention to make the act remedial by inserting in the act itself a section to that effect. If the legislature intended the act giving attorneys liens to be retrospective or remedial in character, we think it safe to presume it would have made the same declaration. No such declaration was made. We think that no distinction exists between the principles that should apply in construing the attorney’s lien act and those which have been already applied to construing the mechanic’s lien act.

In the Kinney case, supra, there was a contract for the building of a house for a specified figure. The work was to be completed by a definite day stated in the contract, but owing to alterations in the plans the petitioner alleged he was unable to complete the contract on the day specified,. but that the defendants had agreed to permit him to proceed with the work and extended the time of its completion, but failed to specify any definite time. The mechanic’s lien law in effect at that time required as a condition precedent to the validity of the lien that the date of completion should be specifically agreed upon, and it was there held that the lien could not attach unless the contract provided a time within which the work was to be completed—the law would not imply a time for its completion. The petitioner, recognizing the fatality of the lack of this element, urged that his case came within the act amending the lien law passed in 1861 (chap. 65, sec. 179). The contract under which the petitioner sought to establish his lien was entered into October 1, 1858, and the court, in disposing of this contention, said: “If this statute only affected the remedy, the petitioner’s view would be correct, but it affects the original contract. This contract was made in 1858 under which the petitioner had no lien, nor had he any lien at the time of the passing of the act. The act makes a new contract for the parties, entirely different in its character, which it is not in the constitutional competency of the legislature to do. They might as well declare that a promissory note, executed years ago, shall be a lien on the homestead. They can deal with remedies, but not with contracts which parties have voluntarily and understanding^ made. Courts may relieve from their hardships, or enforce them; the legislature can do neither.” We see no distinction between the Kinney case and the facts presented upon this record. At the time appellant entered into the contract there was no law giving him a lien upon the property in controversy, or upon any property belonging either to his client or third parties. He did not contemplate a lien or even a possibility of one at the time the contract was entered into. Neither did his client, and it is not within the power of the legislature to create a lien upon the property of another by the passage of the act. It is not an answer to this position to say that under the contract the money was due and owing him and the act simply gave him another means by which he might recover it. The petitioner in the case just quoted from might contend with as much reason that the act of 1861 was giving him nothing he did not already possess, but simply afforded him a means of enforcing his rights. The giving of a lien is not the giving of a remedy. It is the creation of a right upon the property of someone else.

In the Atwood case, supra, a petition was filed by a sub-sub-contractor to enforce a mechanic’s lien for labor and material furnished in the erection of a certain building. On May 27, 1895, Atwood entered into a contract in writing with the George A. Fuller Company for the erection of a large building. The Fuller people sublet portions of the work and the Andrews & Johnson Company performed part of theworkunder a contract from a sub-contractor. Atwood made no contract with any one except the George A. Fuller Company, and there were no contractual relations existing between him and the petitioners. The mechanic’s lien law, under which the petitioners sought relief, went into effect on June 26, 1895. Prior to the passage of this act a sub-sub-contractor could not maintain a bill or petition to enforce a lien. It was there contended that the passage of the act merely gave to sub-sub-contractors a remedy and that the legislature might properly create it. It was contended by the defendant that the act was not merely remedial, but imposed new duties and created substantial rights and that its application to contracts entered into prior to its enactment would be obnoxious to the constitutional provisions prohibiting the impairing of the obligation of contracts. The court said: “Under the contract between Atwood and the Fuller Company, as the law existed when it was executed and became binding on the respective parties, Atwood became bound to pay the Fuller Company the several amounts provided in the contract, unless that company had al- ■ lowed indebtedness to accrue for labor or materials furnished to it for the building, which might become liens under the law as it existed June 26, 1895. Atwood, to protect himself, was then only required to take sworn statements from the Fuller Company of such persons as had sub-contracts with it, and the Fuller Company was entitled to receive the amount due by the contract, provided it had paid its sub-contractors, disregarding the fact entirely whether its sub-contractors had paid their sub-contractors or not. But the law of 1895 conferred new rights upon sub-sub-'contractors—rights which had never before existed under the laws of this State. They were given a right to a lien, and new obligations were imposed upon the owner of the premises and upon the original contractors.” The creation of a lien in favor of the sub-sub-contractors is here declared to be not the creating of a remedy merely, but the conferring of new rights which never before existed. The attorney’s lien law does precisely the same thing. The court further says in the Atwood case: “The new act confers upon claimants rights heretofore unknown to the law, and at the same time it subjects the property of the owner to new liabilities. But if the construction contended for should be given the Act of 1895, and it should be held to govern contracts entered into before the act was passed, it would be an act impairing the obligation of contracts, and would clearly fall within the inhibition of the constitution. Under the contract as executed on May 27, 1895, the George A. Fuller Company and its sub-contractor, the Charles H. Simmons Company, were entitled to enforce a lien on the premises of Atwood for labor and material furnished under contract in the erection of Atwood’s building, but no other contractors or material-men had any lien whatever. But under the new statute, if it governs this case, not only the Fuller Company and the sub-contractor, the Simmons Company, have liens that may be enforced, but sub-sub-contractors may also come in and enforce liens on the property. Thus the contract of Atwood, by the force of a statute, is changed, and new obligations imposed upon him and his property in favor of others who were strangers to him. The obligation of contracts is too sacred to allow this to be done.” The act in relation to sub-sub-contractors casts upon the owner of the premises no greater burden than the attorney’s lien act did upon the defendants in the original suit. It created substantial rights as does the attorney’s lien act and seeks to incumber property with a lien without any warrant of law. In the Atwood case it is further said, on page 255: “It has been suggested the change in the statute was a mere change in remedy, in which appellee had no vested interest. We do not concur in that view. The change in the law, as said before, if applied to the contract in question, affected the substantial rights of the parties.”

The Atwood case and some others are attempted to be distinguished by appellant on the ground that no contractual relations existed between appellant and the defendants in the original suit. Nor does that, in our opinion, affect the principle considered. There were no contractual relations between Atwood and the sub-sub-contractors, but the petitioners therein were seeldng to hold the defendant’s property liable to a lien when the rights of the petitioners emanated from a contract entered into by Atwood and the Fuller Company.

Obviously if the legislature cannot alter or change contractual relations, it cannot make an entirely new contract without the consent or knowledge of the parties. The fundamental principle that the legislature cannot abridge contractual relations is subject to no modification. Appellant, in the present case, predicated his right upon a contract entered into with his clients before the passage of the lien law, under which he seeks to hold the property of the defendants. If he has any rights, they rest entirely upon the contract, and it is the basis of his petition, and upon nothing else, and if unable to bind his own clients by the lien act on account of the contract, he will not be permitted to bind third parties whom he claims are strangers to the contract. By the terms of the attorney’s lien act, after the service of notice, the party receiving the same, where the contract for a service is entered into after the passage of the act, is a party to the contract, and will be bound by its terms. The defendants are entitled to every defense that clients could interpose upon this or any other hearing in which enforcement of the contract is sought.

The holding in Andrews & Johnson Co. v. Atwood, supra, is also followed in Culver v. Atwood, 170 Ill. 432, and in Kendall v. Fader, 199 Ill. 294.

In the Fader case a solicitor’s fee was allowed by the trial court under the act in force at the time the petition for a lien was filed. The act in force at the time the contract was entered into made no provision for the allowance of attorney’s fees. The Appellate Court of the First District reversed the finding in 99 Ill. App. 104, in so far as the attorney’s fees are concerned, holding that: “Under the contract and the law which entered into and formed a part of it when it was made, no lien for solicitor’s fees was provided. To hold that such lien could be given by the statute subsequently enacted would be not to extend appellee’s remedy, but to charge the property for his benefit with an additional incumbrance.” On appeal, in 199 Ill. at page 308, the Supreme Court said: “The Mechanic’s Lien Law of 1874, as amended in 1887, entered into and formed a part of the contract under consideration, arid inasmuch as that act provided for no lien for solicitor’s fees, such lien could not be given by a statute subsequently enacted. It is true that remedies, which the law provides to enforce contracts, constitute no part of the contracts themselves, and are within the control of the legislature. Smith v. Bryan, 34 Ill. 364; Templeton v. Horne, 82 Ill. 491; Woods v. Soucy, 166 Ill. 407. Here, however, the allowance of such lien for an attorney’s fee, when it was not authorized by the act in force when the contract was made, would not be an extension of appellee’s remedy, but would be a charge of an additional incumbrance upon the property for his benefit. We agree with the Appellate Court that the allowance of the fee was improper.”

Appellant, in support of his contention, invokes the authority of Smith v. Bell, 70 Ill. App. 490; and Jones v. Young, 78 Ill. App. 78, reversed in 180 Ill. 216. Both of these cases involve a construction of section 24 of the lien act which applies solely to public improvements. These cases are clearly distinguishable from the case at bar, and the Supreme Court points out wherein the difference lies in Young v. Jones, 180 Ill. 216, where the court says, on page 219: “While that section undoubtedly creates valuable and substantial rights in those furnishing labor and material for public improvements, it does not in any way materially affect the public, which can only be charged with the original indebtedness. As to the public, no property rights are affected. It follows that, so far as the public is concerned, this section 24, applied to contracts for improvements, is merely remedial, and so far the decision of the Appellate Courts is free from objection.” It is true, as appellant herein contends, that the basis of the Culver v. Atwood, Andrews & Johnson Co. v. Atwood and Kendall v. Fader cases, supra, is an impairment of the contractual obligation and an interference with property. It is also true that the basis of the defendant’s contention here is the same. Property rights and contractual relations will be affected if appellant can avail himself of a lien not in force at the time the contract was made. The only reason section 24 of the mechanic’s lien law was held to attach was on the principle that property rights would not be materially affected. Why was this section 24 held to be remedial and others not! Because the public had no property rights that could be affected. The opinion does not state that the Supreme Court intended to overrule or set aside its former holding, and it not only adheres to its former holdings in considering the same principles in Kendall v. Fader, supra, but cites the Young v. Jones case in support of its position, clearly showing, as we think, that the cases are not in conflict but in perfect harmony. The Supreme Court refused to allow attorney’s fees as part of the lien in the Kendall v. Fader case because the law giving the lien was not in force at the time the contract was entered into, and to do so would be to impose additional rights in remedies. If appellant’s contention is sound, then the power lies vested in the legislature to pass laws declaring the property belonging to parties not parties to any character of contract outstanding, subject to liens or other incumbrances it might seek to impose. Such a doctrine is wholly unsound in our opinion, and the Supreme Court reversed the Young v. Jones case for this very reason and gave full force and effect to this principle.

Invoking the same rules of construction in the ease at bar as employed in the cases above cited, we conclude that to enforce the lien for services performed before the enactment of the attorney’s lien law would not be an extension of appellant’s remedy, but would be a charge of an additional incumbrance upon the property for his benefit, and that the court did not err in dismissing the petition.

The order is therefore affirmed.

Affirmed.


text:
    Nathaniel S. Cutright et al., Appellees, v. Adams Express Company, Appellant.
    Gen. No. 5,669.
    1. Roads and bridges—turning to right. Under R. S. c. 121 § 77, providing that carriages shall turn to the right on meeting, except when the nature of the ground makes it impracticable, one driving a wagon is not required to turn to the right where a pile of bricks is so located in the street that it is impossible to pass on the right side thereof, but under the common law he may turn to the left.
    2. Negligence—when evidence justifies finding as to care exercised By drivers. A verdict that plaintiff was exercising due care and that defendant was guilty of the negligence charged is warranted where, when plaintiff turned his team to the left to pass around a street obstruction, the defendant driving rapidly collided with him and the shaft of his wagon was driven into the body of one of plaintiff’s horses, killing him, and it appears that defendant’s horse could easily have passed between plaintiff’s team and the curb, that defendant saw plaintiff’s team some time before the accident, that because of his low seat plaintiff could not see, that defendant was going rapidly but plaintiff’s team was walking, that plaintiff could not have avoided the accident, and that plaintiff had had fifteen years’ experience but defendant had had only eight months’ experience.
    3. Instructions—repetition. Only one instruction is required on any particular subject.
    Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Stevens, Miller & Elliot, for appellant.
    Page, Wead, Hunter & Scully, for appellees,
   Mr. Justice Willis

delivered the opinion of the court.

On November 12, 1910, one of appellees’ teams collided with one of appellant’s wagons on Depot street at the foot of Oak street in the city of Peoria. Depot street runs northeast and southwest along the Union station and is about sixty-six feet in width, and Oak street runs at right angles therewith. The space southwest of the Union station is used by various express companies having offices there. There is a railroad track running along the middle of Depot street and it is sixteen feet from the southwesterly rail to the curb of Depot street at the corner of Oak street. There is a post about eight inches in diameter, about eight or ten feet from the west corner of the Union station. On the day in question, about twenty feet west of this post, there was a pile of brick on the upper side of Depot street at the intersection of Oak street, which reached to the southerly rail of the track in the middle of the street. At about noon of the day of the collision appellees’ driver was driving in a southwesterly direction down Depot street in the middle of the track. As he reached Oak street he turned his team towards the left in order to pass around the brick pile. Just as he turned to the left, appellant’s horse and wagon came out of the open space, headed up Depot street at an angle of about 45°, and struck the left horse of appellees’ team. One shaft of the wagon punctured it back of the left shoulder and penetrated its body about 22 inches. The horse died as a result of the collision.

Appellees sued appellant in the Circuit Court of Peoria county to recover the value of the horse. The declaration charged that the horse died from the injuries received through the negligence of appellant’s driver while appellees’ driver was in the exercise of due care for the safety of their team. A plea of not guilty was interposed. Upon a trial appellees obtained a verdict and a judgment for $225 from which judgment this appeal is prosecuted.

Section 77 of chapter 121 of the Revised Statutes, entitled Roads and Bridges, is as follows:

“Whenever any persons, traveling with any carriages, shall meet on any turnpike, road or public highway, in this State, the persons so meeting shall seasonably turn their carriages to the right of the beaten track, so as to permit each carriage to pass without interfering or interrupting, under the penalty of five dollars for every neglect or offense, to be recovered by the party aggrieved; Provided, this section shall not be construed to apply to a ease where it is impracticable from the nature of the ground for the driver of the carriage or wagon to turn to the right of the beaten track.”

The proof showed that the pile of bricks above mentioned was so located in the street that appellee could not pass with his team and wagon on the right side of the street as he was going. Therefore under this proviso he was not required to turn to the right, but had a lawful right to turn to the left under the common law applying to such a condition.

There was evidence that appellant’s horse came out of the open space and struck appellees’ horse while going at a trot, and it is clear that appellant’s horse was going at a considerable speed, because the shaft was driven from eighteen to twenty-two inches into the body of appellees’ horse. At the time of the collision there was a space of ground eight to twelve feet between the horse that was struck and the curb on the southerly side of Depot street. Appellant’s wagon was about six feet wide. Clearly appellant’s horse could very easily have passed between appellees’ team and the curbing without touching either one and if, as appellant’s driver said, he had been headed up Depot street, hugging the curbing on the lower side of the street, it would have been impossible for him to have struck appellees’ team. If appellant’s wagon came out from the open space at the southwest end of the depot and headed up Oak street it would be at an angle of about 45° to the line of travel of appellees’ team, and as he struck appellees’ horse in the side it becomes apparent that there was nothing appellees’ driver could possibly have done to avoid the collision.. Appellees’ driver sat low down on a plank laid across the bed of a wagon with a heavy team in front. Appellant’s driver sat on an elevated seat with but one light horse in front of him. Appellees’ team was walking at the time of the injury. Appellant’s driver saw appellees ’ team and driver from the time he started from the open space to the time he struck the team. Appellees’ driver did not see appellant’s horse or wagon until after the collision. The fact that appellees’ driver was seated low behind his horses' and that appellant’s driver saw that fact a considerable period of time before the collision, as he himself testified, imposed upon appellant’s driver the exercise of a high degree of care to avoid the collision. Appellees’ driver was a man of 15 years’ experience, and appellant’s was a young boy under 20 years of age who had had but eight months’ experience. Whether, under the circumstances appearing in evidence, appellees’ driver was exercising ordinary care for the safety of his team, and whether appellant’s driver was in the exercise of reasonable care, and whether it was negligence for him to go ahead under all these circumstances, were questions of fact for the jury. Their finding was to the effect that appellees’ driver was in the exercise of ordinary care and that appellant’s driver was guilty of the negligence charged in the declaration. Applying the rule that each person must use reasonable care to avoid a collision such as the place and circumstances require, and what is reasonable care in any given case being a question for the jury in view of all the circumstances, we see no reason to disturb the verdict of the jury on these questions of fact.

The court refused nine instructions requested by appellant, but it is only urged that the court erred in the refusal of the second, fifth and seventh. The principle of law announced in the second instruction was contained in appellant’s third given instruction. The court is not required to give the jury more than one instruction upon any particular subject. National Enameling & Stamping Co. v. McCorkle, 219 Ill. 557. The fifth ignores the evidence that the situation was not seen by appellees’ driver. This instruction would in effect have told the jury that appellant’s horse and wagon had a superior right to the use of the street over the team of appellee. It does not clearly set forth the law of the road as applied to the conditions existing at that place at the time of the injury. The seventh placed an obligation upon appellees’ driver greater than that placed upon him by the law.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Alexander McLean, Appellee, v. Xenophon Caverne, Appellant.
    Gen. No. 5,681.
    1. Slander and libel—admission of entire article. Where but one sentence published by a newspaper is alleged to be libelous, the defendant is entitled to the benefit of the entire article in determining what would be ordinarily understood therefrom and also to an address, made by plaintiff, referred to by the article, and published in the same issue.
    2. Slander and libel—what statement not libelous per se. A sentence concerning the mayor of the town published in a newspaper which states that “only an expert examination of the books and a grand jury examination could show how poorly he lived up to his promises,” is not libelous per se, where the entire article alleges that the mayor did not live up to the promises made in his inaugural address, which was published in the same issue and in which a business-like administration and a strict enforcement of the laws and ordinances by the city officers was promised.

      Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeboy, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed.
    Opinion filed October 15, 1912.
    Morse & Demerath and Searles & Marshall, for appellant.
    Anderson & Andrews, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee was the mayor of the city of Kewanee and appellant was one of the editors and part owner of a newspaper published in said city. Appellee brought this action on the case against appellant to recover damages for the publication'of an article concerning appellee in said newspaper. The declaration consisted of a first and a second count and of an additional count, filed by leave of court during the trial. The first count was dismissed during the trial. Appellant filed the general issue and .several special pleas to each of which special pleas a demurrer was sustained. The cause went to the jury upon the second count, the additional count and the general issue. Appellee had a verdict for $5,000; a remittitur of $2,500 was entered; a motion for a new trial was denied and appellee had judgment for $2,500, from which judgment defendant below appeals. Appellant contends that the article set out in the declaration is not libelous per se and especially when read in connection with the rest of the article: that the court erred in sustaining the 'demurrers to the special pleas; that the court erred in rejecting testimony offered by appellant in mitigation of damages; and that the rulings of the court upon the instructions were erroneous.

The words set out in the declaration are as follows:

“Only an expert examination of the city’s books and an investigation by the grand jury, can show just how poorly Mr. McLean has lived up to his promises, but we expect to go over his record as it appears in our files and in transactions of which we have knowledge and publish the facts.” •

The second count charged that these words were maliciously published concerning appellee, mayor of the city of Kewanee, and of and concerning his official conduct with respect to moneys and finances in the treasury of the city of Kewanee. The additional count charged that said words were maliciously published concerning appellee and of and concerning his official conduct as mayor. No other facts were charged which would make this language actionable, unless it was libelous per se and charged official misconduct amounting to a crime. Appellee put in evidence the entire editorial, of which the language above quoted is but a single sentence. Said editorial was as follows:

“WORDS AND DEEDS.

We are publishing the inaugural statement, read by Mayor McLean when he assumed the duties of his office. It is a good statement and shows that Mr. McLean understood his duty and his opportunity. We suggest that those of our readers, who are interested in city affairs, cut this out and preserve it for reference. Only an expert examination of the city’s books and an investigation by the grand jury, can show just how poorly Mr. McLean has lived up to his promises, but we expect to go over his record as it appears in our files and in transactions of which we have knowledge and publish the facts. The public will have to be the judge. This will take time and effort, but before we get through with it we trust we will be acquitted by the public of having suppressed any information in regard to city affairs.”

Appellant is entitled to the benefit of the entire article in determining what an ordinary reader would understand from the language set out in the declaration. Moreover, inasmuch as this editorial refers to the mayor’s inaugural address and it was published in the same issue of the paper, we do not doubt that that address also is to be considered in determining the meaning of the words complained of. Appellant put that address in evidence, and we are of opinion that the following extract therefrom contains all that was referred to in the language complained of:

“I fully believe in practicing strict economy in public as well as in private affairs, and at all times be guided by common sense and business methods in the expenditure of the people’s money, at the same time I do not believe that we should economize in such a way as to retard in any respect the development of the city, our main consideration should be, that for every dollar expended, we should receive a dollar’s worth in return.

I shall require of all our officials strict enforcement of the laws of the state and city ordinances as far as the same shall apply to their respective duties, and hold each responsible for the infractions of the law. No favors will be granted to any one all having equal rights which must be respected.”

We are of opinion that this entire language cannot reasonably be so construed as to make it libelous per se. The accounts of a city are not kept by the mayor and the declaration does not so charge, nor would a reader of the article understand that reference was made to books of account kept by the mayor. No one would understand from this language that the writer charged that the grand jury should indict the mayor for any crime. What is charged is that the mayor had not lived up to his promises, and when that is considered in connection with the inaugural address, published in the same issue, and therefore really a part of the article, it is clear that the meaning is that the mayor had not lived up to the promises made in the inaugural address, namely that he would require of all the city officers a strict enforcement of the laws and ordinances and hold each responsible for any breach thereof. The meaning is that if an expert accountant examined the city books, and if a grand jury investigated the conduct of the city affairs, it would be found that laws and ordinaces had been violated and that the mayor had not kept his promises to compel their enforcement. This may charge crime against some city officers, but it does not charge any crime against the mayor. The article does not even charge that the mayor knew that there had been infractions of the laws and ordinances by the other officers of the city, and does not state a case where the mayor would be required to prosecute or remove any city officers. We are of the opinion that the entire article makes no charge that the mayor had performed any act or omitted any duty which would render him liable to a criminal prosecution, and that the publication of the article was not a libel, under the allegations of the declaration. It is therefore unnecessary to consider any of the other errors assigned.

The judgment is reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find that the article published by appellant concerning appellee was not libelous and does not confer any cause of action in favor of appellee against appellant, as charged in the declaration.