text:
    Robert D. Sheppard, Appellee, v. Berkshire Life Insurance Company et al., Appellants. On Appeal of Orville P. Curran. Robert D. Sheppard, Appellee, v. Berkshire Life Insurance Company et al., Appellants. On Appeal of Berkshire Life Insurance Company.
    Gen. No. 15,439.
    Gen. No. 15,445.
    Consolidated for Hearing.
    1. Chancery—when has jurisdiction to entertain appeal to determine right to surplus arising from foreclosure sales. If a mortgagee is secured with respect to its indebtedness by several mortgages, one of which is collateral in character, and conducts foreclosure proceedings and sales under such mortgages, receiving more than sufficient to satisfy all claims, chancery has jurisdiction to entertain a proceeding to ascertain the surplus and to distribute the same among the parties entitled thereto.
    2. Res judicata—when decree of foreclosure does not bar bill to determine right to surplus arising from foreclosure sales. If several mortgages are foreclosed by a mortgagee to obtain satisfaction of his indebtedness the decrees entered therein are not res judicata of the right of the mortgagor, who had transferred his equity prior to the institution of such proceedings and who was made a party thereto, subsequently to file a bill to determine his right to a surplus arising from the sales made upon the ground that one of the mortgages foreclosed was merely collateral security, inasmuch as in the foreclosure proceedings no issue was made as to such mortgage being collateral in character.
    3. Laches—when does not bar bill to determine right to surplus arising from foreclosure sales. A delay of a year will not bar such a proceeding where there is no evidence justifying the conclusion that it would be inequitable to allow the complainant'to proceed.
    4. Mortgages—obligations of grantee taking subjqct to mortgage. Whenever the mortgage debt forms a part of the consideration of the purchase price, although the purchaser has not entered into covenant or agreement to pay it, he is bound to the extent of the property to indemnify the grantor. The law implies a promise to that effect from the nature of the transaction, but this obligation to indemnify does not, in the absence of contract, extend to attorney’s fees and expenses incurred in prosecuting and defending litigation.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 5, 1911.
    Rehearing denied May 19, 1911.
    Statement by the Court. These two cases, consolidated for hearing in this court, are separate appeals by Orville P. Curran and the Berkshire life Insurance Company, severally, from a decree of the Superior Court of Cook county, in favor of Robert D. Sheppard, in a suit brought by him against the Berkshire Life Insurance Company, in which he made Cur-ran a party defendant, and in which Curran filed a cross-bill. The bill filed by Robert D. Sheppard (appellee in this court), avers that prior to September 17, 1904, Curran was the owner of certain real estate, known as lots 1, 2, 3 and 4, in O. P. Curran’s subdivision, in the city of Chicago; that in September, 1892, Curran borrowed of the Berkshire Life Insurance Company the sum of $60,000, for which he gave his three promissory notes, each for $20,000, with interest coupon notes attached, and to secure which Curran executed three several mortgage deeds, each to secure one of the $20,000 notes, with interest, and conveying lots 2, 3 and 4 respectively; that these several principal notes became due September 27, 1902, whereupon, after some negotiations, the Berkshire Life Insurance Company and Curran entered into an extension agreement dated March 27, 1903, by which the time for the payment of the said three several notes was extended for five years from September 27, 1902; that in consideration of this extension Curran executed and delivered to the Insurance Company his four additional promissory notes, aggregating $15,000, all of which said notes were secured by a mortgage on all of lots 2, 3 and 4, and upon lot one except the north fifty-six feet thereof. This mortgage was a collateral mortgage, given as further security for the payment of the notes already secured by mortgages on lots 2, 3 and 4.
    It was further provided in the extension agreement that if Curran should pay said collateral notes promptly when due he should have the right to pay the balance remaining on the three $20,000 notes on or before September 27, 1907, and the rate of interest on said last mentioned notes should be five per cent, instead of seven per cent., as originally provided; that when said collateral notes were paid the amounts thus paid should be applied as payment on the three principal notes in the ratio of $5,000, $6,000 and $4,000, respectively, upon the notes secured by mortgage on lots 2, 3 and 4 respectively.
    The bill further avers that on September 17, 1904, Curran conveyed said lots 1, 2, 3 and 4 to William J. Anable, who, by the terms of the warranty deed under which he took, assumed and agreed to pay said mortgages; that on or about the same day Anable conveyed all of said lots to the complainant Sheppard by warranty deed, which specified that the conveyance was subject to the above mortgages, but that complainant did not assume and agree to pay any of them.
    It is further averred that default was made in payment of interest on the three promissory notes, and on December 6, 1904, the Insurance Company filed three several bills for the foreclosure of said several mortgages on lots 2, 3 and 4, respectively, as a result of which, by appropriate decrees, the lots were sold, leaving a deficiency aggregating $5,000.
    It is further averred that on March 22, 1905, the Insurance Company filed its bill to foreclose the last mortgage covering a part of lot 1, etc.; that complainant, Sheppard, was made a party defendant in all of said foreclosure suits, but that, relying upon said agreement between the Insurance Company and Cur-ran, he believed that the Insurance Company was seeking only to realize the sum of $60,000, and interest thereon, being the amount of the principal notes secured on lots 2, 3 and 4, and so believing that the last encumbrance was held by the Insurance Company only as collateral security for the other three obligations, he entered no appearance in the suit to foreclose it, but allowed himself to be defaulted.
    It is further averred that in this last foreclosure suit the property was sold by decree of court on November 2, 1906, to the Insurance Company for $19,-751.22, of which amount $266.50 was deducted for Master’s fees and $816.05 for the fees of the solicitors for the Insurance Company and costs, thus leaving a balance of $18,668.67; that on November 27, 1905, the Insurance Company purchased a prior outstanding mortgage (hereinafter referred to as the Hair mortgage), which represented a total indebtedness of $1,109.03; that accordingly the Insurance Company was entitled to deduct from said sum of $18,668.67 said sum of $1,109.03, plus the aggregate of the deficiency upon the sale of lots 2, 3 and 4 ($5,000), and that the complainant, Sheppard, is entitled to the difference.
    The Berkshire Life Insurance Company and Orville P. Curran filed separate answers to the bill, in each of which the defendants admitted most of the allegations of the bill.
    The Berkshire Life Insurance Company claimed in its answer that Sheppard had been served and defaulted in the suit brought to foreclose upon lot 1, and that Curran offered no evidence in support to sustain the answer filed by him; that the Master found in that proceeding that the Insurance Company was the legal holder and owner of the notes and mortgage; that it was the only bidder, and neither delivered to nor received from the Master any money as the result of the sale, and insisted that Sheppard was estopped to contend that this mortgage was collateral only, and to claim from it any of the proceeds. It further averred that neither Sheppard nor Curran had offered to redeem from the sales or to pay the indebtedness due to it.
    After filing his answer, Curran filed a cross-hill claiming, that from the surplus of $12,559.64 which Sheppard claims from the Insurance Company, he (Curran) should be paid a considerable sum. He averred that Sheppard derived his interest in the property solely through a deed to him from William J. Anable, dated September 16, 1904; that Anable acquired title from Curran and wife by deed dated September 17, 1904, in consideration of which, and as a part of the consideration therefor, Anable expressly assumed and agreed to pay Curran’s indebtedness; that the deed to Anable was in terms subject to the three mortgages to the Berkshire Life Insurance Company above mentioned, to taxes and assessments of 1903, and a trust deed for $938.50 to Hair, as trustee, and also to a trust deed for $8,000 to Howell, as trustee, all of which by the terms of the deed to him Anable assumed and agreed to pay; that by reason of the failure of Sheppard and Anable to make payments when due the Howell trust deed was foreclosed by Matilda McLean, its owner, and that on May 21, 1907, when the property was sold under this foreclosure proceeding, in which both Sheppard and Anable were defendants, a deficiency decree was rendered against Curran (whose liability was in the nature of a surety), for $1,175.63, which deficiency should be paid by Sheppard, who is a mere volunteer under the deed from Anable; that Anable is insolvent; that Curran is entitled to be subrogated to the rights of Anable against Sheppard in said surplus.
    In his cross-bill Curran prays that he may be reimbursed from said surplus, not only for the $1,175.63, the amount of the deficiency decree, but also for $491.25, which amount he was required to pay for attorney’s fees and costs in a suit at law against him by the Berkshire Life Insurance Company, upon his notes which Anable had assumed and agreed to pay, but which, on account of the default of Anable and that of Sheppard, the property was obliged to pay, and also for his defense in the several foreclosure proceedings, above referred to, covering lots 1, 2, 3 and 4.
    In its answer to the cross-bill of Curran The Berkshire Life Insurance Company admitted the various mortgages, and the suits, and the purchase by it under the last foreclosure for the amount stated; that no money passed between it and the Master, but that the Master had given to it a Master’s certificate of sale for the property, and that by virtue of the decree Curran and Sheppard are estopped.
    Curran, by amendment to his cross-bill then alleged that in the transactions, resulting in the conveyance of lots 1, 2, 3 and 4 to Anable and from Anable to Sheppard, that Anable acted as the agent of Sheppard, and that Sheppard took the deeds to the lots with full knowledge of the assumption by Anable of the various mortgages and trust deeds, and that no actual consideration passed between them.
    Sheppard answering the cross-bill denied that Cur-ran was put to any expense in defending the law suit in question because of any default on his part or that of Anable’s, or that he should have protected Curran from said suit; denies that he is a volunteer, and alleges that Curran gave no notice to Sheppard of the suit at law brought against him, and that the defense thereto was of no benefit to Sheppard; that the deficiency decree of .$1,175.63 entered against Curran was in another cause, wherein the property and trust deed were different from those referred to in the bill filed in this cause, and also that Curran does not allege he has paid the deficiency.
    The court dismissed the cross-bill of Curran, and decreed that the Insurance Company should pay to Sheppard the surplus $12,559.64, as prayed in the bill.
    The Berkshire Life Insurance Company contends that the court below erred in its findings and decree against it, and in favor of Sheppard, and insists that the court below should have dismissed the bill for want of equity, and because Sheppard had an adequate remedy at law.
    Curran contends that the court below erred in dismissing his cross-bill, and in not allowing his claims, and providing for a subrogation as to a part of the surplus fund, and in not protecting him against the deficiency decree in the foreclosure of the Howell or McLean trust deed.
    Sheppard assigns cross-errors, contending that the court below erred in not declaring void that portion of its decree in the case of the last foreclosure, which purports to approve that part of the Master’s report referring to the distribution and payment to the Berkshire Life Insurance Company of $18,668.67; also in finding that the charge of fraud against the Berkshire Life Insurance Company, or its agents or solicitors, was not sustained.

      Dent & Jackson, for appellant, Orville P. Curran.
    Thoman, Harnwell & Pearsons and Edwin White Moore, for appellant, Berkshire Life Insurance Company.
    John H. S. Lee, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

Considering at the outset the contention of the Berkshire Life Insurance Company, that the case was not one within equitable jurisdiction, because there was an adequate remedy at law, it seems clear to us that in no other forum could the questions involved be properly disposed of. This suit is, in effect, a bill of review as to that portion of a decree previously entered, which purported" to approve a part of the Mas-. ter’s report referring to the disposition and payment to the Insurance Company of the proceeds of a foreclosure sale.

In the last of the four foreclosures the Master reported his distribution to the Insurance Company of the entire proceeds of the sale, and this report was confirmed. This suit attacks that portion of the report, and seeks to have the court modify the order or decree so as to show that the Insurance Company was not entitled to the surplus, because the last foreclosure was on a mortgage which was merely collateral to an existing indebtedness, and that the act of the Insurance Company in securing payment to itself of this surplus constituted in law a fraud upon complainant and the court.

Upon the case made by the bill, the action of the Company in getting the court to approve the payment to and the retention by it of more than $12,000, after it had been fully paid the amount owing to it, together with" all costs and expenses would, even if free from wrongful intent, constitute such fraud in law as to confer jurisdiction upon a court of equity. Sargent Co. v. Baublis, 127 Ill. App. 631.

Besides, upon the allegations of the bill and cross-bill, the Company is in legal contemplation a trustee, with funds in its possession, which are subject to a trust in favor of others, thus imposing a duty upon it like that of pledgee toward the owner. Colebrook on Collateral Securities, sec. 87; Wetherell v. Johnson, 208 Ill. 247; Union Trust Co. v. Rigdon, 93 Ill. 458; Iron Co. v. Brick Co., 82 Ill. 548.

The Berkshire Life Insurance Company had three separate mortgages upon lots 2, 3 and 4, respectively, and a subsequent additional mortgage upon a part of lot 1, and covering also these three lots, and it clearly appears that this last was merely collateral. The Company had the undoubted right to proceed at the same time to foreclose both the principal and the collateral security. Colebrook on Collateral Security, Par. 113; Furness v. Union Mat. Bank, 147 Ill. 570.

The sale upon the last or collateral mortgage having brought more.than the amount due the Company, the surplus belonged not to it, but to Sheppard, the owner of the equity of redemption, or, under the circumstances in this case, to him and to Curran. Colebrook on Collateral Sec., par. Ill, etc.; Hopkins v. Hemm, 159 Ill. 416, 418.

The fact that the Berkshire Life Insurance Company was itself the purchaser at the foreclosure sale does not change the situation, it being the same as if a third party had thus purchased. The Company thereby became obligated to pay the amount bid for the property. Haigh v. Carroll, 209 Ill. 576, 580; Lightcap v. Bradley, 186 Ill. 510, 524.

From the whole record, including the instructions given by the Berkshire Life Insurance Company to the Master, as to the amount due it, we cannot say, that Sheppard and Curran are precluded from asserting and relying upon the fact that the last mortgage was merely collateral, and though they might not prevent its foreclosure, they were clearly entitled to prevent more than one satisfaction of the Company’s claim. Nor can we agree with the contention made by the Insurance Company that the record in the last foreclosure case constituted an adjudication to the effect that the amount shown by the decree was justly owing to it, and that the foreclosure was entirely independent of, and bore no relation to the other foreclosure suits, which would be binding upon Sheppard and Curran. No issue was presented by the pleadings in that case which made it a material issue, so far as the right of foreclosure was concerned, as to whether the mortgage was or was not a collateral one. Russell v. Epler, 10 Ill. App. 304; Voge v. Breed, 14 Ill. App. 538, 542. Nor do we think the relief sought in this bill is barred by laches. The order of distribution complained of was entered December 12,1906, and the bill herein was filed December 26, 1907. No circumstances are shown in the evidence justifying a conclusion that it would be inequitable to allow complainant to proceed in his effort to procure the relief prayed for.

We are satisfied from the entire record that the Berkshire Life Insurance Company is not entitled to retain the balance or surplus of $12,559.64, but that it equitably belongs to Sheppard, or to Sheppard and Curran.

As between Sheppard and Curran, the contention of Curran is, in effect, that Sheppard acquired title to the property subject to a distinct and clear charge upon it; that if he held the lots now they would be subject to the encumbrance for which, as between Sheppard and Curran, the property would be primarily liable, and accordingly that the surplus fund of $12,-559.64, which stands in lieu of the property, is likewise so charged.

In September, 1892, Curran was the owner of lots 1, 2, 3 and 4. He then mortgaged lots 2, 3 and 4, severally, to secure $20,000 upon each. These several mortgages were extended by an extension agreement, dated March, 1903, at which time he gave, as collateral thereto, a fourth mortgage covering these three, and a portion of lot 1, except the north fifty-six feet thereof. In September, 1892, he had encumbered the north fifty-six feet of lot 1 by a trust deed to Hair, trustee, (which was subsequently acquired by the Berkshire Life Insurance Company), and on September 20,1893, the same property was conveyed to Howell, trustee, to secure $8,000, with interest, owing to Matilda McLean. Then in September, 1903, Curran conveyed all of lots 1, 2, 3 and 4 to Anable, subject to all these encumbrances, which by the terms of the warranty deed to him Anable expressly assumed and agreed to pay.

Sheppard acquired the property with notice of the encumbrances upon it, and the conveyance to him, made practically contemporaneously with the deed to Anable, was expressly subject to them. Therefore, his equity of redemption, as it is called, was the ownership of whatever there should be left of the property after these liens had been paid, and Sheppard should not be allowed to take the fund in its entirety to the exclusion of Curran. To allow this would be inequitable. Chicago D. & V. R. R. Co. v. Field, 86 Ill. 270, 273; Home Savings Bank v. Bierstadt, 68 Ill. App. 656, 660. The law is clear, that whenever the mortgage debt forms a part of the consideration of the purchase, although the purchaser has not entered into any covenant or agreement to pay it, he is bound to the extent of the property to indemnify the grantor. The law implies a promise to that effect from the nature of the transaction. 1 Jones on Mortgages, Par. 751, with citations. . Curran should be protected against the Howell trust deed, in the foreclosure of which a deficiency decree of $1,175.63 against him was entered on May 20, 1907, in the foreclosure suit brought by Matilda McLean. In other words, Matilda McLean should equitably obtain payment of her claim from the fund. Hempstead v. Watkins, 6 Ark. 317; Marsh v. Pike, 10 Paige, 595.

Curran also claims that he should be reimbursed the sum of $491.25, that being the amount paid out by him in part in defending a suit at law, prosecuted against him by the Insurance Company, upon some of the notes secured by the collateral mortgage, and in part for his defense in the four foreclosure suits. The record shows that the amount claimed by Curran is a reasonable amount, if the property is subject to this charge.

Curran bases his contention upon the ground that since the property, and, because of the sale, now the fund, is primarily liable for the indebtedness, he should be protected against all costs and expenses incurred by him by reason of the failure of Anable and Sheppard to pay the notes in question. If they had been promptly paid, he would not have been sued, and compelled to incur this expense.

We 'do not find any sufficient authority to sustain this contention. We are holding, in this case, that the fund is' liable as a principal for the payment of the original indebtedness, with interest, but it does not appear that, in the conveyance to Anable, in which he assumed and agreed to pay the encumbrances therein stated, there was any clause or covenant by which Anable agreed to indemnify Curran, his grantor, and save him harmless from any suits which might be brought against him on account of his having given the original notes and mortgage. Such a liability could only be created by contract. In any event, Sheppard should have been notified and asked to defend by Cur-ran, and this was not done.

The decree of the court below is reversed and the cause remanded, with instructions to enter a decree in conformity with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baldwin

license: Public Domain

text:
    Robert D. Sheppard, Appellee, v. Berkshire Life Insurance Company et al., Appellants. On Appeal of Berkshire Life Insurance Company,
    Gen. No. 15,445.
    This case is controlled by the decision in Sheppard v. Berkshire Life Insurance Company, ante, p. 467.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 5, 1911.
    Rehearing denied May 19, 1911.
    Thoman, Harnwell & Pearsons and Edwin White Moore, for appellant, Berkshire Life Insurance Company.
    Dent & Jackson, for appellant, Orville P. Curran.
    John H. S. Lee, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The subject-matter of the appeal in this case has been fully covered in the opinion filed this day in the case of Sheppard v. The Berkshire Life Insurance Company et al. (ante, p. 467), which was the appeal of the Berkshire Life Insurance Company from the same decree as that from which Curran appeals in this case. The two appeals were consolidated for hearing-in this court.

For the reasons given in that opinion, the decree appealed from must be reversed and the cause remanded, with instructions to the court below to enter a decree in conformity with the views in said opinion expressed.

Reversed and remanded.


author: Mr. Justice Clark

text:
    Louis Friedman, Plaintiff in Error, v. Pratt Food Company, Defendant in Error.
    Gen. No. 15,403.

      Negligence—when ordinances incompetent. ■ Ordinances providing for the construction and maintenance of an elevator and shaft in a particular manner are not competent unless it he shown that the violation thereof proximately resulted in the injury complained of.
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed May 5, 1911.
    Blum; & Blum, for plaintiff in error.
    H. L. Howard, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Louis Friedman, plaintiff in error, brought suit for injuries received on the roof of a building occupied by the defendant in error, the plaintiff in error at the time of the accident being sixteen years of age.

On the roof a cable was running over a wheel, the wheel and cable being connected with a freight elevator that was operated in the building. The plaintiff in error had been engaged during the time of his employment—a period of from two to two and a half years-—■ in packing boxes and doing general work around the establishment. On the day of the accident he was sent to the roof with another employe of the defendant in error to shake dust out of some feed bags. He had been on the roof once before. He testified that the wheel was about thirty-six inches in diameter, and that there were beams' on either side, about twelve inches wide; that there was a board on top of it and tin over the wheel to protect the cable from rain. His explanation of the manner in which the accident occurred is that while shaking the bags he got some of the dust in his eyes, and went backwards over to the wall of the skylight for the purpose of getting in the shade while he was wiping the dust out of his eyes, and that while he was removing one of the suspend.ers of his overalls his hand got between the cable and the wheel.

The court, on the motion of the defendant at the close of plaintiff’s case directed the jury to find the defendant not guilty. This is alleged by the plaintiff in error to be cause for reversal, and the case of Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, is cited to us as a controlling authority. That case, however, was of very different character. In that case an employe fourteen years of age was injured while in an elevator in the building of Siegel, Cooper & Co. The court found that there was evidence tending to sustain the contention that there was a defective construction of the entrance to the shaft of the elevator, and held that while the accident was due in part perhaps to the negligent act of another boy who was riding with Trcka, the accident would not have happened had the master not been negligent in permitting such a construction of the entrance.

Error is also alleged in the case before us because of the refusal of the trial judge to permit the introduction of certain ordinances of the city of Chicago with respect to the construction of elevators, being sections 35, 115, 200, 201 and 203, which were set forth in the plaintiff’s declaration: The particular sections which plaintiff in error deems of importance are not mentioned in the brief, but it is stated that the ordinances require an elevator to be enclosed from the foundation to a height of six feet above the roof, and that the enclosure of the machinery on the roof should, on buildings over sixty feet in height, be made of incombustible material. Just what the failure on the part of the defendant in error to comply with these requirements had to do with the accident is not stated. The trial court evidently regarded the accident as dne to the negligence of the plaintiff in error, and not to any negligence on the part of the defendant in error.

Eeference is made in the abstract to a plan which was referred to as having been prepared for the use of the plaintiff in error at the trial, and the bill of exceptions contains a statement that the plan is attached to the bill of exceptions as “Exhibit A.” It was not, however, so attached. A photograph was also referred to in the examination of witnesses, which apparently was made by the defendant in error. While the court stated that both the plan and the photograph might be considered as in evidence, neither one of them is produced for our inspection.

The case as disclosed by the declaration and the proof is not founded on the idea of “attractive nuisances,” although the argument of counsel for defendant in error would seem to indicate that in their opinion this principle is involved. The age of the boy and the period of his service were such that he would probably be held in any event responsible for the result of his own negligence. Careful review of the evidence has convinced us that the accident was not due to any negligence with which the defendant in error is chargeable, but rather to the carelessness of the plaintiff in error himself.

It follows, therefore, that the court properly instructed the jury to find the defendant not guilty. North Chicago St. Ry. Co. v. Cossar, 203 Ill. 608; Joliet Steel Co. v. Shields, 146 Ill. 603.

Affirmed.


text:
    Willis D. Smith et al., Appellants, v. Mary C. B. Griswold et al., Appellees.
    Gen. No. 15,404.
    1. Administration of estates—what not waiver of executor’s fees. For an executor to file his final account without claiming therein certain fees, is not to waive the same. An executor cannot fix his own fees. It is quite proper for an executor to file his final account, leaving the question of fees thereafter to be fixed by the court. This is especially true where the executor expressly by language negatives an intention to waive his fees.
    2. Administration of estates—when order of discharge entered as result of fraud, accident or mistake. If a final account is delivered by an executor to an attorney representing the beneficiaries under the will with the accompanying statement that he expects remuneration and is willing to accept such fees as may be -fixed by the court, an order of discharge made without fixing the fees of-such executor should at his petition be set aside.
    3. Res judicata—when judgment of Supreme Court so operates. If upon an application to set aside an order discharging executors the question as to whether or not the order of discharge was entered by fraud, accident or mistake was presented by affidavits, all parties in interest being represented, and the Supreme Court subsequently holds that the order of discharge was entered by fraud, accident or mistake, that question becomes one of res judicata.

    4. Statute of Limitations—when does not bar relief in equity. Held, under the facts in this case, that the Statute of Limitations did not bar the right of an executor to recover his fees from beneficiaries under a will where an order of discharge had been entered through fraud, accident or mistake, and that even though the Statute of Limitations had run, the defense thereof would not be recognized in equity in view of the fact that to enforce the Statute of Limitations would be to work a hardship against the complainant.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with directions.
    Opinion filed May 5, 1911.
    Samuel A. Lynde and Sherman M. Booth, for appellants.

      Henry S. Shedd, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

In this proceeding Willis D. Smith, one of the appellants, seeks to recover by a bill in equity filed for that purpose in the names of himself and the other two executors of the estate of Edward B. Griswold, deceased, from the four appellees named as defendants in the bill, the sum of $2,000, the appellees being the residuary legatees under the will of the said Edward B. Griswold, said sum having been allowed him by an order of the Probate Court entered May 21, 1906, as his fees as executor.

On January 31, 1901, the Probate Court of Cook county approved the final report of the executors, by which it appeared that all of the debts of the estate had been paid and distribution of the estate had been made to the widow and all legatees under the will.

The appellant, Smith, claims that two or three days before the final account was so approved he presented the same to John Schwender, an attorney of the city of Chicago; that the final account had been partly prepared by him, and that Mr. Schwender finished the preparation of the account and that thereupon it was signed and sworn to by the appellant, Smith, and the other two executors.

Mr. Schwender, after the death of the testator, and while the estate was in probate, had married one of the residuary legatees, Mary Maud Griswold, one of the daughters of the testator.

The appellant, Smith, testified that at that time he told Mr. Schwender that he expected to be paid fees, and asked him to present the final report to the Probate Court and at the same time ask the probate judge what fees he, the appellant Smith, should rightly be paid, stating to Mr. Schwender that he would be satisfied with whatever allowance the Probate Court made. There is some dispute between Mr. Schwender and the appellant, Smith, as to just what was said, but it is undisputed that no allowance was fixed by the Probate Court at that time of the fees of the appellant, Smith, or the other executors.

On February 6, 1901, the appellant, Smith, applied through other attorneys, to the Probate Court to have the order of January 31, 1901, set aside and an allowance made to himself of $2,000 as fees. The Probate Court refused to enter an order setting aside the order approving the final account, and at that time made no order with regard to the fees. An appeal was thereupon taken to the Circuit Court of Cook county, and upon a hearing had in that court the ruling of the Probate Court was reversed and the Probate Court was instructed to set aside the order and allow the appellant, Smith, the amount asked for. From this order an appeal was taken to this court. The decision appears in 116 Ill. App. 223. By reference to that opinion it will be found that the order of the Circuit Court was affirmed, excepting that part of the order making a separate finding of fees in favor of the appellant, Smith. The concluding paragraphs of the opinion in that case are as follows:

“The order appealed from is therefore reversed in so far as it fixes appellee’s fees at $2,000, and the cause is remanded to the Circuit Court with directions to ascertain and allow jointly the fees of the three executors of the estate of Edward B. Griswold, deceased, for their services as such, unless one or more of them waive or relinquish his or their right thereto or fail to make an application in that regard within thirty days after the redocketing of this cause in the Circuit Court. If at the end of the thirty days appellee be the only executor who applies for compensation, said court shall allow him $2,000. In all other respects said order is affirmed.
“In disposing of this cause we do not wish to be understood as expressing an opinion as to the nature or character of the proceedings to which the Probate Court may resort for the purpose of providing the means with which to pay the fees of the executors, as we do not regard that question as being before us for decision. ’ ’

A writ of error was sued out from the Supreme Court by Mary C. B. Griswold and Edward B. Gris-wold, who with the appellant Smith were the executors of the estate, but was dismissed on the ground that the judgment of the Appellate Court was not final. Griswold v. Smith, 214 Ill. 323. When the case was re-docketed in the Circuit Court an order was entered in conformity with the opinion of this court, as above set forth. Thereupon, in pursuance of the order of the Circuit Court, the Probate Court on May 21, 1906, entered an order vacating the order of January 31, 1901, which approved the final account and discharged the executors; the said Probate Court at the same time making the further order that the appellant Smith be paid $2,000 for executor’s fees, which the court found to be reasonable and proper, the other executors having waived their right to any fees. In the order a recital was made of the amount the widow and the four residuary legatees had received from the estate, and the further recital that the executors had distributed to the said widow and legatees all estate assets, and ordered the residuary legatees to pay to Smith or the executors for him, the said $2,000; that if they failed to refund $500 each, which the court found to be the proportionate share of each, on or before May 31, 1906, the executors should bring actions at law or in equity to compel the refund and the paying over by the legatees all necessary sums to pay him the amount of $2,000; that said Smith, appellant herein, should have the right to employ attorneys to prosecute such suits in behalf of the executors, and to control the prosecution thereof in the names of the executors.

It should be stated that prior to the order of the Probate Court of May 21, 1906, there had been an appeal taken from the order of the Circuit Court above referred to, to this court, and that upon the application of the appellants there was a pro forma order entered here, affirming the said judgment of the Circuit Court entered -May 9, 1905. From this affirmance by this court an appeal was taken to the Supreme Court and the judgment of the Circuit Court and the judgment of this court were affirmed. Griswold v. Smith, 221 Ill. 341. In affirming the judgment, Mr. Justice Magruder, speaking for the court, used the following language:

“The allowance of fees to the executors is a duty, which is imposed by law upon the Probate Court. The amount is to be determined by the court upon the application of the executor. It appears clearly from the record that, before the appellee made his motion to set aside the order of January 31, 1901, and to fix the allowance of his fees, he gave written notice to John Schwender, attorney for the executors. It is not denied that Schwender was the attorney of all three executors, and acted for them in the administration of the estate. He was also the husband of one of the heirs of the estate. In the present case, he must be held to have represented the widow, the heirs and legatees, as well as the executors. The final report of the executors was entrusted to Schwender to be presented to the Probate Court, and was by him presented to the Probate Court and approved. Upon that report was endorsed an entry of appearance, signed by the widow and all the heirs and legatees of the deceased testator, in which they waived notice and ratified the final report of the executors. Schwender was entrusted, not only with the final account of the executors to be presented to the Probate Court, but he was also entrusted with the written entry of appearance and ratification of said account or report, signed by the heirs and legatees of the deceased. He is, therefore, to be regarded in this case as representing not only the executors, but the heirs and legatees. He acted for the heirs and legatees in presenting their ratification of the final report, as well as for the executors in obtaining, the approval of that report. As Schwender had written notice of appellee’s motion to fix his fees and set aside the order of January 31,1901, it must be held in this case that the widow and heirs and legatees, as well as the two executors besides appellee, had notice of the motion. The order of the Probate Court, entered on March 8, 1901, denying the motion of appellees, contains the following recitation: ‘All parties in interest being present in open court or represented by counsel, on hearing had it is ordered by the court that the prayer of said motion be and the same is hereby denied. ’ This recitation, that all parties in interest were present in open court. or represented by counsel, refers as well to the widow, heirs and legatees, as to the executors, all of whom were represented by Schwender. We are, therefore, of the opinion that, even if notice of the motion in question to the widow, heirs and legatees was required, such notice was in fact given. But, as is well said by the Appellate Court in their opinion: ‘The heirs will have their day in court whenever the court will again be asked to discharge the executors and approve their final report and account. ’
“It is said, however, that the order of January 31, 1901, approving the final report and account of the executors, together with the ratification thereof by the widow, heirs and legatees, was a decree entered by consent, and could not therefore be set aside or vacated except for fraud, accident or mistake. The court certainly had jurisdiction to entertain the motion to set aside the order. The order was made on January 31, 1901, and the motion to set it aside, and fix the allowance of the executor’s fees, was made on February 6, 1901, during the January term of the court. In other words the motion to set aside the order was made at the same term, at which the order was' entered. Inasmuch as the motion was made before the expiration of the term, the Probate Court still had jurisdiction to fix the amount of the executor’s fees, and to make the proper order for its allowance and payment. When the court entered the order, approving the final account of the executors and discharging them, the matter of the allowance of fees to the executors was not brought to the attention of the court, and was not passed upon. Even if the rigid rule, that the order of January 31, 1901, was a consent decree, and could not be set aside or vacated except for fraud, accident or mistake, be applied to this case, we are of the opinion that such order was entered either through fraud, accident or mistake. The attorney, John Schwender, who represented the executors, was presented with the account and the ratification thereof by the heirs, and was requested by appellee, one of the executors, to call the attention of the court to the executor’s fees, and to have the fees allowed. The affidavits show that Schwender- agreed to present the matter to the Probate Court, but failed to do so. He took the final account of the executors, with the endorsement thereof of the heirs, to the Probate Court, and handed it to an assistant of the Probate Judge, but neglected to present it to the judge. After his first presentation of the report he was again requested by appellee, after the latter had learned that the attention of the court had not been called to the subject of the fees, to bring up said subject before the Probate Court, and have the amount of the fees fixed and allowed. The appellee told Schwender that he was willing to take such fees as the Probate Court might fix upon. It appears clearly to us from the record that Schwender violated his promise, and neglected, without any good excuse, to call the attention of the Probate Court to the matter in question. There was certainly a case made out under the admitted facts, which will come either under the head of fraud, or of accident, or of mistake. There was no waiver by appellee of his claim for fees, nor any consent on his part to a discharge without the allowance of fees. The question of fees not having been passed upon by the court, the allowance thereof was not adjudicated, nor determined by the order of January 31, 1901, and, therefore, it cannot be said that appellee is concluded by that order, as if entered by his consent, from asking for an allowance of a fair and reasonable fee.
“Appellee, as executor, could not fix his own fee, which was to be determined by the court. Therefore, he was not to blame for making no entry in the final account prepared by him for the executors in reference to the amount of such fee. In the absence- of an express waiver by appellee of his fees, it was the duty of the Probate Court to determine the amount to be allowed to him, and such amount would have undoubtedly been fixed, if the attention of the court had been called to the subject.”

The bill in the case before us was filed February 6, 1907, and is based upon the order of May 21,1906. The learned chancellor who heard the case evidently did not regard the opinion of the Supreme Court in Griswold v. Smith, 221 Ill. 341, as conclusive upon the proposition that the order of January 31, 1901, was entered in the Probate Court through fraud, accident or mistake, and allowed testimony to be taken in regard thereto, and found that there was no mistake of fact and no fraud so far as the payment of the moneys to the legatees was concerned. He found further that the conduct of Mr. Schwender could not affect the situation “because at the time that he was to have asked for the allowance of fees the executors had nothing on hand; the money had all been distributed by them.” Thereupon an order was entered dismissing the bill. From this order the present appeal is prosecuted.

In our opinion, the Probate Court, the Circuit Court, Appellate Court and the Supreme Court all had before them the facts with reference to this question of fraud, accident or mistake in the proceeding which finally resulted in the judgment of the Supreme Court in Griswold v. Smith, 221 Ill. 341. We think, therefore, that the Circuit Court was concluded by the opinion from which the foregoing lengthy excerpt is taken, on the question whether or not there was fraud, accident or mistake in entering the order of January 31, 1901, in the Probate Court.

In the trial in the court below, the testimony of Mr. Schwender was taken. We have read it carefully, as well as the testimony of the appellant, and we think that in justice to Mr. Schwender it should he said that no charge of fraud in procuring’ the entry of the order of January 31, 1901, can properly be lodged against him. We think, however, that the order was entered by mistake, ánd that therefore the appellant was justified in filing the bill of complaint which he did file in the names of himself and the other two executors, in pursuance of the order of the Probate Court entered on May 21, 1906. The Supreme Court held, as will be noticed, that because Mr. Schwender was entrusted not only with the final account of the executors, to be presented to the Probate Court, but also with the written entry of appearance and ratification of the report, signed by the heirs and legatees of the deceased, he must be regarded as representing not only the executors but also the heirs and legatees, and that he acted for the heirs and legatees in their ratification of the final report, as well as for the executors in obtaining the approval of that report.

We think it is more than probable that Mr. Schwender was of the opinion when he was requested by the appellant to ascertain from the Probate Court what the fees of the appellant, Smith, as executor, should be, that it was merely for the purpose of fixing the amount, and that said appellant and the residuary legatees would adjust the matter without a formal order of the Probate Court. From this we think it clearly appears that the order was entered by a mistake, which probably would not have occurred if the appellant, Smith, the other executors and the legatees had been represented by separate counsel. On the other hand the appellant Smith when he found that Schwender had not obtained from the Probate Court the information that he wanted, and had had no order entered by the Probate Court fixing the amount of fees, immediately filed his petition to have the order of January 31, 1901, set aside, and fee allowed him. His petition in this behalf was filed in the Probate Court on February 6, 1901, and should have been granted. Since this time, by repeated appeals and writs of error taken to and from this court and the Supreme Court, there has been constant resistance to the setting aside of the order approving the executors ’ final account and the entry of the order fixing the amount of the appellant Smith’s fees as executor. The chancellor held that no fraud or mistake of fact existed when payment of legacies was made to the four residuary legatees, and based thereon his conclusion that no recovery could be had against them. If the Probate Court had entered the order fixing the fee in February, 1901, as it has been held by the Supreme Court it should have done, it at the same time could and should have ordered restitution by the legatees of the excess amount paid them respectively, and on their failing to do so could, as he later did, order the executors to file a suit against them for that purpose.

We think that the Circuit Court should have found that the order of January 31, 1901, in the Probate Court was entered by mistake, and should have entered a decree and judgment against the four residuary legatees, as prayed for in their bill.

It is urged that the complainants may not maintain their bill because more than five years elapsed between the order of January 31,1901, and the date of the filing of the bill, namely, February 6, 1907: Inasmuch, however, as the appellant Smith could not maintain his bill until after the amount of his fees had been fixed by the Probate Court, and inasmuch as the Probate Court erred in not granting the relief prayed for by the appellant Smith in his petition of February 6, 1901, and because of the delay caused by the repeated hearings in this and the Supreme Court, we think the Statute of Limitations would not in any event begin to run until the entry of the order of May 21, 1906. But courts of equity will grant relief after the Statute of Limitations applicable to actions at law has run, where it is necessary to prevent hardship. Carlock v. Carlock, 249 Ill. 330.

The cause will be reversed and remanded with a direction to the Circuit Court to enter a decree in favor of the appellants and against the four residuary legatees in accordance with the prayer of the bill.

Reversed and remanded with directions.


text:
    John Riley, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,433.

      Instructions—when upon question of negligence erroneous. Held, that the following language, “and that as a direct result of such negligent management of the car, if such there was, the car ran into and struck the wagon on said crossing,” was improper in that the instruction did not specify the particular acts of mismanagement which were relied upon in the declaration.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 5, 1911.
    Statement by the Court. Appellee was injured in July, 1906, in a collision between a wagon, in which he was riding, and an electric car of appellant, at or near the intersection of Twenty-third street and State street. State street runs north and south, and has upon it a double-track car line; the southbound cars run on the west track, and the northbound cars on the east track. Appellee was driving east on Twenty-third street. He had a loaded wagon, the load consisting of ten barrels of soda ash, aggregating 3,300 pounds in weight. The car which struck the wagon was on the west track going south. There was a conflict in the testimony as to just where the accident occurred. Appellee testified that he knew there was a car going south on the west track; that he started to turn north on State street and when he got across all the tracks but one the collision occurred. On the part of the appellant there was testimony to the effect that appellee after leaving Twenty-third street drove north in State street a considerable distance; that when, the car was forty or fifty feet from him he suddenly turned his horse to the east and attempted to drive across the track.
    , There was a trial before a court and jury, resulting in a verdict of $2,000, on which judgment was rendered.
    John E. Kehoe and Watson J. Ferry, for appellant.
    Sears, Roos & Boeger and Lawrence W. Potter, for appellee; Quin O’Brien, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

We are asked to reverse the judgment on the grounds, first, that it was against the weight of the evidence; second, that improper instructions were given; and third, because the damages are excessive;

We have carefully examined the record, and feel that the case was properly tried and properly submitted to the jury excepting as to one instruction given on behalf of the appellee, which was as follows:

‘ ‘ The court instructs yon that the defendant in running its street car has no better or greater right to use the street or the tracks on the crossing of State street and Twenty-third street than the plaintiff, John Biley, had to use them. Their rights there in that regard were equal and they each owed to each other the duty to exercise reasonable care and caution to avoid a collision and injury. Therefore, if you believe from the evidence that the accident happened on the public crossing of those streets, and that in driving on the crossing and across the track in question the plaintiff was exercising ordinary care and the defendant by its servants in charge of the car failed to exercise reasonable care to avoid injuring the plaintiff, and that as a result of such negligent management of the car, if such there was, the car ran into and struck the wagon on said crossing and thereby injured plaintiff without his fault, then you should find the defendant guilty.”

In the case of Ratner v. Chicago City Ry. Co., 233 Ill. 169, the following instruction was complained of:

“If you shall believe, from all the evidence in this case, that on the 15th day of May, 1903, the plaintiff became a passenger upon a car of the defendant, the Chicago City Bailway Company; that the plaintiff was in the exercise of ordinary care and caution for his own safety; that a collision occurred between said car and a wagon on the track of the defendant; that the plaintiff was injured by such collision, and that the defendant, the Chicago City Bailway Company, could have avoided such collision by the exercise of the highest degree of care consistent with the practical operation of the road, then you should find the defendant, the Chicago City Bailway Company, guilty.”

The Supreme Court say:

“It is urged that this instruction is erroneous because it does not limit the negligence of the defendant to that charged in the declaration. Without question the instruction tells the jury that the appellant company would be held liable if it was guilty of negligence under the circumstances in the instruction, whether it was charged in the declaration or not. It is elementary that recovery can only be had on the negligence charged in the declaration. (Crane Co. v. Hogan, 228 Ill. 338). In Chicago, Burlington and Quincy Railroad Co. v. Levy, 160 Ill. 385, it was held that an instruction, in an action for personal injuries, allowing recovery if the defendant ‘was guilty of negligence contributing to the injury’ was erroneous, as failing to confine the recovery to the particular negligence alleged in the declaration. In Camp Point Manf. Co. v. Ballou, 71 Ill. 417, in an action for an injury sustained by reason of certain named defective machinery, it was held that the right of recovery must be confined to accidents occurring from the defects specified in the declaration, and that it was error to instruct the jury that the plaintiff was entitled to recover for those arising from any defect in the machinery. In Chicago and Alton Railroad Co. v. Rayburn, 153 Ill. 290, this court held that an instruction was erroneous which permitted a verdict upon negligence not charged in the declaration.
“Appellee, however, contends that the error of this instruction, if any, was cured by the series of instructions given for appellant, which most fully covered the question. The same argument was made in the Levy and Ballou cases, supra, and in both those cases it was held that the other instructions given for the defendant restricted the recovery to the cause of action alleged in the declaration and did not cure the error. This instruction substantially directed a verdict. While it is not required that one instruction should state all the law, and instructions may supplement each other, yet when an instruction directs a verdict it should state all the essential facts and conditions. (Pardridge v. Cutler, 168 Ill. 504; Illinois Central Railroad Co. v. Smith, 208 id. 608; Illinois Iron and Metal Co. v. Weber, 196 id. 526). The giving of this instruction was error.”

It is urged by the appellee in the case before us that because the instruction given contained these words, “and that as a direct result of such negligent management of the car, if such there was, the car ran into and struck the wagon on said crossing,” etc., the instruction is not erroneous as containing the vice stated by the Supreme Court to have been in the instruction given in the case of Ratner v. Chicago City Ry. Co., supra.

The first count of the plaintiff’s declaration charges negligence as follows:

“The defendant then and there by its servants so carelessly and improperly drove and managed the said motor-car that by or through the negligence, mismanagement and unskillfulness of the defendant by its servants in that behalf, the said motor and train of cars then and there ran into and struck the said wagon,” etc.

In the second count it is alleged:

“It then and there became and was the duty of said defendant to use by its servants and agents in that behalf ordinary care toward affording plaintiff time and opportunity to cross said State street, and therein said defendant did by its servants and agents make default and carelessly and negligently cause said car to be run at a rapid rate of speed without warning, so carelessly and improperly drove and managed the said motor-car that by or through the negligence, mismanagement and unskillfulness of the defendant by its servants and agents in that behalf the said motor-car then and there ran into and struck with great force and violence upon and against said wagon,” etc.

It will be noted that the instruction does not give the particular acts in the mismanagement of the car which the jury must find the defendant to have been guilty of; that is to say, that the car was running at too rapid a rate of speed, or that no warning was given, or that the motorman did not use skill in applying the brakes or in doing or omitting to do some other act that might have prevented the accident. In the case of Pardridge v. Cutler, 168 Ill. 504, the Supreme Court stated:

“But if an instruction directs a verdict for either party, or amounts to such a direction in case the jury shall find certain facts, it must necessarily contain all the facts which will authorize the verdict directed. ’ ’

The instruction before us does not pretend to set out the facts which the jury must find in order to come to the conclusion that the negligence averred in the declaration was proven. While the point is perhaps technical, we are convinced that under these decisions of our Supreme Court the instruction is bad, and that it would be so held by the Supreme Court if the case were presented to that tribunal.

Reversed and remanded.


text:
    Theophile Becker, Appellee, v. Illinois Improvement & Ballast Company, Appellant.
    Gen. No. 15,459.
    1. Pleading—when declaration will not support recovery. If the declaration does not contain averments of negligence to support the proof of negligence made, no recovery can he sustained.
    2. Master and servant—when latter cannot recover for injury occurring from obedience to order of foreman. An experienced driver who had worked about horses for many years and was as fully cognizant of the danger attendant upon an attempt to stop a runaway team as his foreman, cannot recover for an injury resulting from this attempt, pursuant to an order of such foreman, to stop a runaway team.
    3. Master and servant—when doctrine of assumed rislc applies. No recovery may be had for a risk assumed by the servant in attempting to perform what he regards as his duty upon the master’s order, where he has not been misled by such order of the master.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of fact.
    Opinion filed May 5, 1911.
    Statement by the Court. The appellee, hereinafter called the plaintiff, brought suit against the appellant, hereinafter called the defendant, for injuries sustained in November, 1904. The declaration contained several counts, which set out in different verbiage two acts of negligence asserted to have been committed by the defendant. It was averred that the plaintiff was in the employ of the defendant as teamster; that the defendant by its servants and agents in that behalf was then and there engaged in unloading a wagon on Seventy-fourth street, the unloading being under the control and management of the defendant’s foreman, who was not a fellow servant of the plaintiff; that the defendant by its foreman so negligently, carelessly and improperly managed the unloading of the wagon that the horses attached to the wagon were struck by portions of the contents of the wagon and were caused to run away; that while so running away the horses knocked down and trampled upon the plaintiff. In other counts the negligence alleged was the same except that the additional statement was made that plaintiff was injured in attempting to stop the horses which were so running away.
    The case was tried before a court and jury, the verdict of the jury being for $7,000. On motion for a new trial being made, a remittitur of $2,000 was required by the court, and thereupon judgment was rendered for the sum of $5,000.
    Follansbee, McConnell & Follansbee, for appellant; Mitchell D. Follansbee and Clyde E. Shorey, of counsel.
    Brandt & Hoffman, for appellee; Leo V. Roeder and Samuel R. Markman, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The grounds on which it is asserted the judgment in this case should be reversed are, first, that the plaintiff assumed the risk of his employment; second, that he was guilty of contributory negligence; third, that the negligence of the foreman, if any, was not the proximate cause of the injury; fourth, that the verdict was against the weight of the evidence; fifth, that there were errors in the rejection and admission of testimony; sixth, that unfounded remarks of counsel influenced the jury improperly; and seventh, that the damages are excessive.

The proof shows that the plaintiff was driving a team of horses attached to- a wagon loaded with crushed stone; that a foreman of the defendant superintended the unloading of the stone. Plaintiff stated that he was ordered by the superintendent to get off the wagon and help him; that he obeyed the order, thus leaving his horses unhitched—so violating, as alleged by plaintiff, an ordinance of the city of Chicago; that as the foreman and the plaintiff were lifting the side of the wagon box it became loosened from its support and thus loosened the front end so that the front end fell over against the hind legs of the horses and some of the crushed stone came about their feet; that the horses ran away. The plaintiff contends that he was ordered by the foreman to catch the horses, and that while endeavoring to obey the order he was run over by the wagon and seriously injured.

The foreman denies that he gave instructions to the plaintiff to try to stop the horses, but on the other hand insists that he told him not to try to do so.

In our opinion, the proximate cause of the accident was not alleged in any count of the declaration. Arguments of counsel for plaintiff are directed principally and necessarily to what is claimed to have been the wrongful act of the foreman in directing the plaintiff to stop the horses after they started to run; and in this regard the testimony is directly conflicting, as heretofore stated. The declaration no where charges the defendant with negligence in respect to this order so alleged to have been given, but we discuss the question as though such act of negligence were alleged, although in our opinion no recovery could be had if the declaration had contained the proper averments.

In Republic Iron Co. v. Lee, 227 Ill. 246, the Supreme Court had before it a case in which plaintiff recovered a judgment for injuries alleged to have been caused by a defect in machinery of which defect the defendant had notice. The declaration alleged that the plaintiff knew of the defect and had made complaint thereof, and was continuing in the service under a promise of the master to repair; and the court says, on page 257:

“When he alleged, as in the third count, that he knew of the defect, had made complaint thereof, and was continuing in the service under a promise of the master to repair at the time he was injured, he should not have been permitted to recover under proof that he did not know of the existence of the defect, unless the declaration was amended to conform to such proof. If such procedure as "was here followed were to be permitted, then, as said in Wabash Western Railway Co. v. Friedman, 146 Ill. 583, ‘A declaration would be a delusion, and instead of affording a defendant notice of what he was called upon to meet, it would be a deception.’ ”

In the same case, in commenting upon the doctrine of assumed risk, the court says, at page 258:

“An exception to the doctrine of assumed risk exists where a servant is ordered by his master to do certain work which is attended with danger of which he is not fully cognizant, and he relies upon the order to do the work as an assurance that he may safely perform the task. This case, as stated by the first two counts of the narr., is not within the exception, however, because appellee had full and .complete knowledge of all the dangers attendant upon and resulting from the negligence charged by those two counts, in so far as the evidence tended to prove the same. It is only where the servant has been misled by the order of the master that the exception existsSee also the case of Crane Co. v. Hogan, 228 Ill. 338.

In the case before us there can be no contention that the plaintiff, who was an experienced driver and who had worked about horses for many years, was not as fully cognizant of the danger attendant upon an attempt to stop a runaway team as the defendant could possibly have been. The evidence tended to show that the plaintiff endeavored to stop the team by catching hold of the breeching on one of the horses, in that way expecting to be pulled along so that he could catch hold of the bridle, thus enabling himself by throwing his weight upon the bridle to force the team to stop.

We are satisfied from the reasoning in the foregoing opinions of the Supreme Court, and in the decisions therein rendered, that judgment in this case may not be permitted to stand without violating two principles of law, the first one being that no recovery may be had except for negligence averred in the declaration; and the second, that no recovery may be had for a risk assumed by a servant in attempting to perform what he regards as his duty upon the master’s order, where he has not been misled by such order of the master.

For the reasons stated, the judgment will be reversed and a judgment rendered in this court in favor of the appellant, with a finding of fact.

Reversed with finding of fact.


author: Mu.. Justice Clark

text:
    Max Simon, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 15,463.
    Passenger and carrier—what question of negligence for fury. Whether a carrier is guilty of negligence in permitting the platform of one of its cars to become slippery, held, under the evidence in this case, to he a question of fact to he determined hy the jury from all the facts and circumstances shown.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy; Judge, presiding.

      Certiorari denied hy Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed,
    Opinion filed May 5, 1911.
    Rehearing denied May 19, 1911.
    ■Judah, Willard, Wolf & Reichman and William H. Haight, for appellant; Cecil Page, of counsel.
    Edward Maher and H. E. Wyhekoop, for appellee; Morse Ives, of counsel.
   Mu.. Justice Clark

delivered the opinion of the court.

Suit was brought by the appellee against the appellant for injuries sustained on a platform of its railroad, on May 3, 1907, at what was known as Center avenue and Sixty-third street station. The accident happened shortly before seven o’clock in the evening.

The testimony of the plaintiff was that in getting off a train he walked slowly toward the exit stairway and that when about three feet from the stairway he slipped and fell, striking his right hip, which resulted in an impacted fracture of the neck of the femur. It was a stormy day, unusually cold for that time of the year. The testimony of the plaintiff tended to show that the snow began to fall in the morning and that it continued to fall during the day until after the accir dent happened; that there were snow and ice of about two or three inches in thickness upon the platform.

On the part of the appellant it was shown by the officer in charge of the United States Weather Bureau that the snow began to fall at 3:34 p. m. ; that it was slushy snow and melted as it fell; that up to seven o’clock only eight-tenths of an inch had fallen, and that it melted so rapidly that only two-tenths of an inch remained on the ground.

While the appellee claimed there was ice upon the platform, it is probable from all the testimony, which showed among other things that it had been warm for several days previously, that the platform was covered with snow and slush and not with ice.

At this station there were two platforms, each about eight feet wide and one hundred and fifty feet long. A dispatcher for the appellant testified that one porter had the duty of cleaning and sweeping the platforms and the steps; that he used a snow broom and swept the south platform, where the accident occurred, perhaps an hour before the accident.

We think there is no question as to the appellant’s ' duty in the premises. In Hutchinson on Carriers, section 935, it is said:

“Thus it is negligence on the part of a railroad com-party to permit its platforms to remain covered with snow and ice, so as to be unsafe for passengers alighting from trains. The railway company ought to remove it or, if that cannot be done, to take precautions against injury to persons passing over the platforms by covering them with ashes, salt or some substance which would render them less dangerous.” Citing Railroad Co. v. Smith, 162 Ill. 185.

In the case of Illinois Central Railroad Co. v. Keegan, 210 Ill. 150, the court held the following charge to the jury to be proper:

“The defendant is bound to be on the' alert during cold weather, and to see whether there is ice upon the platform and to remove it, or make it safe by sanding it or putting ashes upon the platform or in some other manner.”

Whether the platform became slippery from snow or slush or ice is not particularly material. Timpson v. Manhattan Ry. Co., 52 Hun 489.

In our opinion, the trial court did not err in refusing to direct a verdict for the defendant. The court gave to the jury ten instructions as requested by the appellee, and thirty-two requested by the appellant, and no error is alleged as to its action in that regard. The jury found a verdict of $2,000, upon which judgment was awarded. We do not regard this as excessive.

'Affirmed.


text:
    Thomas Durkin, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 15,489.

      Negligence—when maintenance of defective railing does not constitute. If an injury results from the use of a railing for a purpose for which it was not intended, negligence is not shown.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Aethgr H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of fact.
    Opinion filed May 5, 1911.
    Frank P. Leffingwell, for appellant.
    Quin O’Brien and Lawrence W. Potter, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellee, Thomas Durkin, was on the 19th day of November, 1906, employed as a common laborer by the firm of McNulty Bros., of Chicago, a corporation engaged in the plastering, cementing and decorating business.

At the time of the accident McNulty Bros, had a contract for work on the twelfth and thirteenth floors of the building of Marshall Field & Co., used as a retail store. Proof shows that there were many elevators running to the twelfth floor for the carrying of passengers in this building, but only one of them that went higher than the twelfth floor. This one elevator was used for the carrying of freight and ran to the thirteenth floor. There was a narrow stairway which ran between the twelfth and thirteenth floors, a distance of fifteen to eighteen feet. There was a turn in the stairway, and the evidence seems to indicate that at the turn it was about thirty inches wide and at its broadest part about three feet wide. At the head of the stairway there was a railing which Thomas Gallagher, one of the witnesses for appellee, spoke of in his testimony as “a kind of a screening * *' * it was like a guide for keeping people or anything else from falling down the stairs; it was a kind of guide and was a kind of hand rail.”

Appellee was ordered by the foreman of McNulty Bros, to take a wheelbarrow from the thirteenth-floor to the first floor. There was a dispute in the testimony as to whether he was directed by the foreman to use the stairway or to use the freight elevator. The appellee, with the assistance of another man, placed the wheelbarrow on his shoulders and attempted to go down the stairs. It is quite apparent that the stairs were so narrow as to make this a very difficult thing to do. The probability is that the foreman expected him to use the freight elevator. In going down the .stairway, the appellee stumbled and caught hold of the pipe constituting the “screening” or “guide.” It seems from the testimony that this pipe had been broken and was fastened with a wire.

The declaration' in the first count charges the defendant, Marshall Field & Co., with having “carelessly and negligently, on the day aforesaid, and for a long time prior thereto, maintained said stairway in a defective and dangerous condition in that on the side of said stairway which was steep there was then and there a certain handrail which was weak and defective, and was unfastened and unsupported at its upper end, at, to-wit: the top of said stairway,” etc.

■ “ The second count is practically the same as the first, and recites that the stairway was in a defective and dangerous condition “in that on the side of the stairway which was steep there was then and there a certain handrail which was weak and defective, and insecurely and improperly fastened and supported at its upper end at to-wit: the top of said stairway. ’ ’

Tn our opinion, the negligence charged in the decíaration was not proved. The declaration was evidently drafted with the expectation that the facts would disclose that there was a handrail on the side of the stairway, whereas the fact is that the rail which was shown to have been out of order was not intended for the same purposes as a handrail, but was at the top of the stairway to serve as a sort of a warning. It was not intended to be grasped by a person who was using the stairway, as is the purpose of the ordinary handrail.

We do not wish, however, to base our decision upon the want of proper allegation in the declaration, for the reason that even if an allegation properly setting out the facts were in the declaration, the appellee, in our opinion, should not be allowed to recover, because the mere fact that this railing, when used for a purpose for which it was not intended, gave way, is not sufficient ground upon which to base a charge of negligence of the defendant.

It is unnecessary for us to discuss the many other questions raised by the appellant in its brief. The charge is made that the plaintiff was intoxicated. It was his first day’s employment at this place, and he admitted that he had taken a drink with the foreman a short time before the accident occurred, but insisted he was not intoxicated. Several of the defendant’s witnesses testified that in their opinion he was under the influence of liquor. Dr. Wheeler, who attended him in the appellant’s store, testified that “his actions were that of a drunken man. For one particular thing when I attempted to make an examination of him he combatted me, and he talked in a peculiar manner, like a drunken man. When I applied the dressing to his side he threw himself about and tried to resist me in every manner possible. In fact, when I applied the dressing on his side there were two men held his arms for me.”

It is further urged that in attempting to go down this narrow, winding stairway, with a wheelbarrow on his shoulders, appellee was guilty of contributory negligence. The stairway was built of iron, and while the declaration charges that it was in an unsafe condition, there was no proof but that in every particular it was absolutely solid and capable of holding any weight which it would be called upon at any time to sustain.

It is also claimed by the appellant that the damages were excessive. Internes and nurses of the hospital were placed upon the stand, and their records of his condition shown. If their testimony is to be believed, it is quite apparent that the appellee was not injured and did not suffer to the extent he claimed in his testimony. It is also apparent that the jury did not entirely credit him, as the amount of the award in their verdict was but $1,200.

The judgment will be reversed with a finding of fact.

Reversed with finding of fact.


text:
    Carleton Hudson, Appellant, v. Sarah G. Riddle, Executrix, Appellee.
    Gen. No. 15,980.
    1. Appeals and errors—when appealable interest does not appear. A trustee who does not show that a decree has injuriously afEected his interests has no appealable interest and an appeal by him will be dismissed on motion especially where it appears that the only parties for whom such trustee could claim to have been acting were before the court and have not upon their own behalfs prosecuted an appeal.
    2. Trustee—when order directing money to be paid to his grantor not erroneous. Held, under the facts and evidence in this case, that the order which directed the payment of the money in question in this case to the grantor, rather than to his trustee, was proper.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Appeal dismissed.
    Opinion filed May 5, 1911.
    Rehearing denied May 19, 1911.
    Joseph O. Morris and Darrow, Masters & Wilson, for appellant.
    William Sherman Hay, Almon W. Bulkley and John A. Henry, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellant filed a hill of complaint against Francis A. Riddle in his lifetime, joining as defendants a large number of persons and corporations who were alleged to be creditors of Riddle or in some way interested in the subject-matter, also a number of persons against whom Riddle was alleged to have claims.

It appears that on February 23, 1906, Riddle executed a power of attorney to Hudson, authorizing him to execute and perform, orally or in writing, any and every act and deed he, Riddle, “could or can” in his own proper name and person; and particularly authorizing and empowering him to collect any moneys due Riddle, whether the same be in form a mere claim or account, or acknowledgment of indebtedness, promissory note, judgment or otherwise. It further authorized bim to give receipts for moneys paid to him, and to sign and execute in Riddle’s name, all papers, contracts, deeds, etc., which might be necessary or proper in order to set over, assign and transfer to the wife of Riddle any property, real, personal or mixed, that Riddle was possessed of. It authorized Hudson to pay all taxes and charges against his property, also fire and life insurance premiums. It further authorized Hudson “to pay and receive to himself all money which has been, or at any time hereafter may be advanced by bim on my account, with legal interest thereon, and the balance and remainder to pay over to my beloved wife, Mrs. Sarah Biddle, for her and my own use and support.”

On the same day a judgment rendered in the Circuit Court of Cook county against the West Chicago Par^ Commissioners for $20,583.33 and costs was assigned by Biddle to Hudson. On March 10, 1906, Hudson executed an instrument, referring to the foregoing assignment of judgment and declaring that he held the same—

“First: To pay to himself any and all sums now due, or that may become due from said Francis A. Biddle to himself, or any further sums of money that may be loaned to said Biddle, or be disbursed on said Biddle’s account or for his said benefit, or any liability incurred for him or his benefit by the undersigned.
1 ‘ Second: To pay to the attorneys of record of said Biddle in said suit against the West Chicago Park Commissioners their reasonable and proper fees or charges in conducting said litigation in the recovery of above mentioned judgment.
“Third: To pay and satisfy in full all legal and proper indebtedness owing by said Biddle to his creditors, on proof of the same, the undersigned to be held harmless for any erroneous payment.
“Fourth: To hold the remainder of the-proceeds of said judgment, after satisfying the foregoing, in trust for the wife of said Francis A. Biddle, Sarah Gr. Biddle, and apply the same to said Sarah Gr. Biddle for her support and for the support of said Francis A. Biddle, as the same may be required.
“Any expense whatsoever incurred by the undersigned caused by litigation or otherwise, growing out of the assignment of said judgment to him is to be paid first out of the proceeds of said judgment, so that the undersigned is to be held harmless in the premises.”

On the same 'day, March 10, 1906, another power of attorney was executed by Biddle to Hudson, authorizing him to borrow' money and to execute notes, and to deliver as collateral thereto mortgages upon any real or personal property of Biddle, to hypothecate any of the personal property of any kind which Biddle might possess, and to transfer any and all shares of stock standing in his name on the books of corporations.

Also on the said March 10th another power of attorney was executed by Biddle to Hudson, authorizing him to sell or mortgage any and all real, personal or mixed property possessed by Biddle, particularly mentioning a farm in Sangamon county.

The prayer of the bill is that the court cause an accounting to be made as to the amount owing to Hudson by Biddle, and for the appointment of a new trustee, and that said Biddle and his said wife, be required to join in whatever instruments may be necessary to convey or release the said trust premises to such new trustee and for the discharge of Hudson from the trusts created in the said instruments.

Answers were filed by some of the defendants and other defendants were defaulted. Cross bills were also filed by certain of the defendants. Hearing was had upon the issues joined between the complainant Carleton Hudson and the defendant Francis A, Biddle (other than the question of accounting between them), and upon the several motions of the defendant, Francis A. Biddle, to (1) strike from the files the cross-bill of the Natural Guano Company, to (2) strike from the files the cross-bill of Benjamin F. Miles, to (3) dismiss the original bill of complaint as to the defendant, Marquette Safety Deposit Company, to (4) dismiss the bill of complaint as to the defendants, Connecticut Mutual Life Insurance Company of Hartford, Connecticut, and State Mutual Life Assurance Company of Worcester, Massachusetts, and George Pasfield, to (5) dismiss the bill of complaint as to defendants, Western Bank Note & Engraving Company, Jenny & Mundie, Benjamin F. Miles, George H. Weitz, Anna D. Nickerson, administratrix or executrix of the estate of Boland C. Nickerson, deceased, and Stockdale Fertilizer Company, and a decree was entered July 16, 1909, dismissing the cross-bill of the Natural Gruano Company and Benjamin F. Miles, dismissing the bill as against a large number of other defendants, and decreeing that the cause, both the original bill as amended and the cross-bill of Francis A. Biddle, be referred to a master in chancery, to state a just and true account between the complainant and the defendant, Francis A. Biddle, and to report the same to the court with his conclusions of law and fact thereon; ordering that Carleton Hudson within ten days file a true and just statement with the master, as to moneys owing to him and paid out by him in the matter prior to February 23, 1906.

From this decree an appeal was prayed to this court by the complainant Carleton Hudson and a large number of the defendants and cross-complainants. The only one who has perfected an appeal, however, is the complainant Carleton Hudson.

A motion was made before this court to dismiss the appeal, on the ground that the decree was not final, and was reserved until the hearing of the cause. We are of the opinion that the motion to dismiss should be allowed.

The appellant insists that he has an appealable interest because by the power of attorney he was empowered first, to collect all moneys due Biddle; second, to execute all receipts, papers, contracts and deeds for Biddle necessary to set over to Mrs. Biddle all Biddle’s property; third, to pay all taxes and charges against Biddle or his property now due or thereafter due; fourth, to pay himself (Hudson) out of the proceeds of any property of Biddle’s all moneys now due him, or which might hereafter be advanced by Hudson on Biddle’s account; fifth, to pay the remainder to Mrs. Biddle for her support and Biddle’s support.

We do not think the instrument created a trust in Hudson which could be asserted by any of the creditors of Biddle. It could possibly be asserted by Mrs. Biddle, but Mrs. Biddle, as the record shows, is now a party to the cause as executrix of her husband’s estate. She has prosecuted no appeal to this court, nor have any of the many creditors who were made defendants to the bill and who were by decree of the court dismissed from the cause.

The appeal by Hudson is apparently in his individual capacity, and although twenty-three assignments of error are made, we find none of them based upon claims that he was injuriously affected by the decree. The case of Press v. Woodley, 160 Ill. 433, is cited as an authority that the appellant in the case before us has an appealable interest. We should follow that case and affirm the decree in the present case, on the ground that the assignments of error did not call in question the correctness of any ruling of the court below affecting the appellant, were it not for the fact that in our judgment the case differs from Press v. Woodley, supra, in that the only parties for whom Hudson could claim to have been acting as trustee were before the court and have not seen fit to prosecute any appeal from the decree.

When a hearing is had before the master on an accounting, the complainant will have ample opportunity to obtain credit for any debts of Biddle that he has paid pursuant to his power of attorney, for any money advanced by him, and for fees if he is entitled to any, and the court upon the coming in of the report of the master will have ample power to protect him in the distribution of whatever sums may have come into his hands in pursuance of the rights vested in him by the power of attorney.

Appeal dismissed.