text:
    Harman Coal Company, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Company and Chicago and Northwestern Railroad Company, Plaintiffs in Error.
    Gen. No. 16,711.
    1. Depositions — affidavit for taking. The provisions of revised statutes Chap. 51, § 25, requiring a satisfactory affidavit to be filed when depositions are sought of witnesses residing in a different county Should be substantially complied with unless the deviation is waived by the consent of the parties.
    2. Costs — when on failure to take depositions properly denied. Under revised statutes Chap. 51, § 29, providing for certain costs when depositions upon oral interrogatories are not taken, after notice, such costs, cannot be taxed in a case where the depositions were not taken, because a proper affidavit had. not been made, and where this omission was known and not waived by opposing counsel before he had incurred the expenses in question.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Glennon, Cary, Walker & Howe, Charles A. Vilas, H. T. Ballard and W. J. Coleman, for plaintiffs in error; L. J. Hackney and Edward M. Hyzer, of counsel.
    Seitz, Bryan & Wilber, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This action was commenced in the Municipal Court of Chicago, February 3, 1910, by Harmon Coal Company, defendant in error and hereinafter called plaintiff, against the two railroad companiés, as defendants,'to recover loss and damage to a certain carload of coal in transit. On February 16, 1910, the attorney for. plaintiff served upon the attorneys for the defendants a notice that the depositions of certain witnesses upon oral interrogatories would be taken on March 7, 1910, beginning at 10 o’clock a. m., before a notary public, at the office of the Eldorado Coal & Mining Company, in the city of Eldorado, Illinois. After the receipt of said notice and before the time fixed for the taking of said depositions, the attorneys for the defendants ascertained that plaintiff’s attorney had failed to file in said court a “satisfactory affidavit,” as provided by Section 25 of Chapter 51 of the statutes of this state. Knowing this to be so, the attorneys for the defendants nevertheless left Chicago, appeared at Eldorado at the time and place set for the taking of said depositions, and there entered an objection to the taking of the testimony of the witnesses on the .ground that the notice was insufficient and invalid, and not according to the statute, in that no “satisfactory affidavit” had been filed. Plaintiff’s attorney then endeavored to get the defendants’ attorneys to waive their objection, saying that the witnesses were present and that he was ready to proceed with the taking of their testimony, but defendants’ attorneys refused to do so. Whereupon plaintiff’s attorney decided not to take the depositions and the same were not taken. On April 1, 1910, the attorneys for the defendants entered a motion in the case to tax costs, supported by the affidavit of one of the attorneys for the Chicago & Northwestern Bail-road Company, in which it was stated that affiant appeared at the time and place mentioned in said notice, that the depositions were not taken, that in going to Eldorado and returning to Chicago affiant had traveled a distance of 622 miles, and was entitled under the statute (Sec. 29, Chap. 51, Rev. Stat. Ill.) to an attendance fee of $2.00 and mileage, at six cents per mile, amounting to $37.32, or a total sum of $39.32. A similar affidavit was filed by one of the attorneys for the Cleveland, Cincinnati, Chicago & St. Louis Eailroad Company, in which the same amount was claimed. Counter affidavits were filed, and after hearing and argument before one of the judges of the Municipal Court, the motion to tax as costs said attendance fees and mileage was denied. Plaintiffs in error seek by this writ to reverse that ruling.

We think that the ruling was correct. Section 25 of Chapter 51 of the statutes of this state requires that a “satisfactory affidavit” be filed when it is sought to take the depositions of witnesses residing in this state but in a different county from that in which the court is held. And the provisions of such a statute should be substantially complied with, and no material deviation therefrom will be allowed “unless by the agreement and consent or waiver of the parties to the suit.” Corgan v. Anderson, 30 Ill. 95; Pickard v. Bates, 38 Ill. 40. In this ease the attorneys for the opposite parties expressly refused to waive one of the plain requirements of the statute, and because of their refusal the depositions were not taken. Section 29 of Chapter 51 provides that “when a party to a suit shall give the opposite party notice to take a deposition upon oral interrogatories, - and shall fail to take the same accordingly, unless such failure be on account of the non-attendance of the witness, not occasioned by the fault of the party giving the notice, or some other unavoidable cause, the party notified, if he shall attend himself or by attorney, agreeably to the notice, shall be entitled to $2 per day for each day lie may attend, under such notice, and to six cents per mile,” etc. We do not think that by virtue of the provisions of this section of the statute costs should be imposed upon the plaintiff under the facts in this case. Defendants’ attorneys knew before they made their trip to Eldorado that one of the statutory requirements for the taking of the depositions had not been complied with. If it was not their intention to waive that statutory requirement, it was unnecessary for them to go to Eldorado, Illinois, merely for the purpose of making their objections. The objection as to the lack of the affidavit could have been made to the Municipal Court, after the receipt of the notice, either before the time set for the taking of the depositions, or within apt time thereafter. “Statutes, which impose costs, are to he construed strictly, as such statutes are penal in their character, and are regarded as creating liabilities which did not exist at common law” (Gehrke v. Gehrke, 190 Ill. 166). The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Richard Guthmann Transfer Company, Plaintiff in Error, v. Bryant & Stratton Business College, Defendant in Error.
    Gen. No. 16,725.
    1. Appeals and errors — when plaintiff cannot complain that case was tried without a jury. The plaintiff cannot complain on appeal from a Municipal Court judgment in a ease of the fourth class that the case was heard without a jury, where no jury was demanded by him, at the commencement of the suit, as allowed in such cases by Municipal Court Act, § 30.
    2. Municipal Court — demand for jury trial. Under the Municipal Court Act, § 30, the defendant in a case of the fourth class may withdraw a demand for a jury trial at any time before trial.

      Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Adolph Marks, for plaintiff in error; Elijah N. Zoline, of counsel.
    Harris F. Williams, for defendant in error; Eldon M. Votaw, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On February 9, 1910, the Eichard Guthmann Transfer Company, plaintiff in error and hereinafter called plaintiff, commenced a fourth class suit in the Municipal ' Court of Chicago to recover of the Bryant & Stratton Business College, defendant in error and hereinafter called defendant, the sum of $25, the same being a balance due it, as it was claimed, on a, contract for moving certain property and effects of the defendant from one location in the city of Chicago to another location, and also to recover for the value of three trunks alleged not to have been returned by defendant to plaintiff, and also for certain extra work done, making a total claim of $61. At the time of commencing the suit plaintiff did not demand a jury. On February 15, 1910, the appearance of the defendant was entered and a demand, in writing, of a trial by jury filed. At the same time the defendant filed a statement of set-off or counter-claim, in which it admitted that it had paid only $525 on. the $550 contract made with plaintiff, denied any liability on plaintiff’s claim for extra work, and as to the three trunks said that they were held by defendant subject to plaintiff’s order, and that plaintiff could have them at any time. The defendant further claimed the sum of $262 of the plaintiff for damage occasioned by plaintiff to the property of the defendant in moving the same under said contract. The items of this counter-claim were set forth in the statement filed. On May 10,1910, the ease was called for trial, but no attorney or representative of the plaintiff appeared. Whereupon the defendant withdrew its demand for a jury, and the court, after hearing the evidence and argument of counsel, and being fully advised, found the issues for the defendant on its counter-claim and assessed defendant’s damages at the sum of $237, upon which finding judgment was entered. On May 31, 1910, plaintiff appeared by attorney- and moved the court to set aside said judgment. This motion was supported by affidavits, and a counter-affidavit was also presented. The court, after considering the affidavits and the arguments of the respective counsel, denied the motion and the case is before us on this writ of error.

Counsel for plaintiff contends that the refusal of the court to set aside the judgment was a manifest abuse of its discretion. We have examined the record with considerable care, and cannot agree with the contention. Hartford Life Insurance Co. v. Rossiter, 196 Ill. 277; Bowman v. Wood, 41 Ill. 203; Pitzele v. Lutkins, 85 Ill. App. 662.

Counsel for plaintiff further contends that the court erred in allowing the defendant, after it had demanded a jury, to withdraw that demand in the absence of plaintiff, and in hearing evidence without a jury. Under Section 30 of the. Municipal Court Act, plaintiff could have demanded a jury trial at the time its suit was commenced, but plaintiff did not do so and therefore it cannot now complain. While it is true that defendant demanded a trial by jury, it was defendant’s privilege, under said section of the act, to withdraw that demand at any time before the trial, which was done. The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Oscar T. Griffith, Defendant in Error, v. The Prudential Insurance Company of America, Plaintiff in Error.
    Gen. No. 16,746.
    1. Insurance — right to sue on policy. It is error to refuse to direct a verdict for the defendant, where on action by the son of insured on a policy payable to the executor or administrator of insured, and providing further that the company might make payment to certain others described who may appear to be equitably entitled by reason of having incurred expense on behalf of deceased, it does not appear that the son is the executor or administrator or that he incurred any expense on behalf of the deceased.
    2. Insurance — who may sue. A provision in an insurance policy, that the company may make any payment provided for thereby to any relative of the insured, or anyone appearing to the company to be equitably entitled, is a mere privilege which the company is not obliged to exercise.
    3. Insurance — when tender hack and refusal of premium does not affect rights of parties. An action by the son of insured on an insurance policy which provides for payment to the executor or administrator and that payment may be made to certain others if equitably entitled, the rights of the parties are not changed by the fact that the company denied liability and made an offer to return the premium, which was refused.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Hoyne, O’Connor, Hoyne & Irwin, for plaintiff in error; Carl J. Appell, of counsel.
    No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ was sued out by The Prudential Insurance Company of America, a corporation, plaintiff in error and hereinafter called the company, to reverse a judgment rendered against it, June 7, 1910, for $122.50, in the Municipal Court of Chicago, in favor of Oscar T. Griffith, defendant in error. The action was brought on a life insurance policy issued by the company insuring the life of Mary E. Griffith, the mother of plaintiff. No appearance has been entered in this court by defendant in error, hereinafter called plaintiff.

The material facts are as follows: In November, 1909, Mary E. Griffith, at Breckenridge, Missouri, made application for insurance and, on November 22, 1909, a policy was issued to her by the company. The policy provided that the amount of insurance specified therein should be paid by the company at its home office in Newark, New Jersey, “unto the executors or administrators of the insured,” unless settlement should be made as provided in another clause of the policy, immediately upon receipt of due proof of the death of the insured during the continuance of the policy. The other clause of the policy is as follows:

“The company may make any payment provided for in this policy to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his or her burial or, if the insured be more than fifteen years of age at the date of this policy, for any other purpose, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.”

The policy contained this further provision, to-wit:

“The company’s liability under this policy shall be limited to a return of the premiums paid hereon if the insured die before the date hereof, or if on said date the insured be not in sound health.”

The insured died on December 17, 1909, less than one month after the date of the policy, at the home of one of her sons in Breckenridge, Missouri, with whom she had been living. Plaintiff was also a son of the deceased residing in Chicago, Illinois, and the deceased left her surviving a third son, residing at St'. Joseph, Missouri. Shortly after her death plaintiff made a demand upon the company for the payment to him of the amount claimed by him to be due under the policy. The company claimed that the insured was not in sound health at the date of the issuance of the policy, wherefore, under one of the provisions of the policy above mentioned, the company’s liability was limited to the return of the premiums received, and on January 31,. 1916, a superintendent of the company in Chicago, wrote plaintiff as follows:

“I am in receipt of a communication from our Claim department authorizing me to adjust claim under policy on the life of Mary E. Griffiths by the return to you of the premium paid thereon which amounts to $2.10, which I will be glad to do if you will call at my office. If it is not convenient for you to call, kindly advise me where and the most convenient time one of our representatives could call on you.”

Plaintiff did not accept the offer and shortly thereafter commenced this suit. It was not claimed at the trial that plaintiff was the executor or administrator of the deceased. Nor did the testimony show that he incurred any expense on behalf of the insured for her burial or for any other purpose. It was admitted that all premiums due on the policy had been paid.

At the close of plaintiff’s evidence a motion was made to direct a verdict for the company because the evidence did not show any right in the plaintiff to maintain the action. The court denied this motion, and, the company electing not to offer any evidence, the court instructed the jury to find for the plaintiff for the full amount of his claim. The jury returned a verdict in accordance with the instruction and judgment was entered on the verdict.

We think the court erred in refusing to direct a verdict for the company and in entering the judgment. The policy being payable by its terms to “the executors or administrators of the insured,” they alone, under the facts of this case, were entitled to bring suit. Bailey v. New England, etc. Ins. Co., 114 Mass. 177; Massachusetts, etc. Ins. Co. v. Robinson, 98 Ill. 324; Heubner v. Metropolitan, etc. Ins. Co., 146 Ill. App. 282. The provision in the policy that “the company may make any payment * * * to any relative * * *' of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for her burial or * * * for any other purpose,” is a mere privilege or option which the company is not obliged to exercise, and which it did not exercise in this case. Ferretti v. Prudential Ins. Co., 49 Misc. (N. Y.) 489. Plaintiff did not show that he incurred any expense for the burial of the insured or for any other purpose. Heubner v. Metropolitan, etc. Ins. Co., supra. And the fact that the company offered to return to plaintiff the $2.10, paid as premiums thereon, which offer he did not accept, cannot change the rights of the parties. The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Anton W. Radomski, Defendant in Error, v. The E. R. Stege Brewery, Plaintiff in Error.
    Gen. No. 16,764.
    1, Statute of frauds — when contract not within. Where plaintiff performed within a year his agreements to execute a three years’ lease of certain saloon premises to a prospective tenant under a provision, that only defendant’s heer was to he sold thereon hy the lessee, which provision the lessee performed, and further to repair the premises at plaintiff’s expense, and nothing remained to be done but the payment by defendant to plaintiff of 50 cents per barrel on all such beer sold on such premises during the life of the lease, the statute of frauds is not available as a defense.
    2. Contracts — when do not lacle mutuality. Plaintiff who was under contract, binding on his grantees, lessees and assigns, to sell only the defendant’s beer on certain premises, agreed to lease the premises to a third person and repair them and defendant agreed to pay plaintiff fifty cents on every barrel of beer sold on the premises during the life of the lease. Held, that the contract was not lacking in mutuality because, since there was danger of the premises becoming vacant, defendant was interested in having the business continue.
    McSurely, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Simeon Straus and Ira E. Straus, for plaintiff in error.
    Bert D. Wing, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Anton "W. Radomski, defendant in error and hereinafter called plaintiff, brought suit in the Municipal Court of Chicago against the E. R. Stege Brewery, a corporation, plaintiff in error, and hereinafter called the brewery, to recover from it the sum of $458.50, which he claimed was due him by virtue of a verbal contract entered into a few days prior to February 21, 1908. A trial was had before a jury, which resulted in a verdict in favor of plaintiff for the full amount of his claim. Judgment was entered upon the verdict and this writ is prosecuted to reverse that judgment.

The material facts are as follows: In April, 1907, plaintiff purchased a piece of property, improved with a brick building, situated at the corner of West Twenty-Third place and Oakley avenue in the city of Chicago. At the time of the purchase he borrowed $3,000 from the brewery, securing that loan by a trust deed on the property, signed by himself and wife, and running to Eichard Gr. Stege, trustee, which provided for the payment of the said $3,000 three years after date, with interest at the rate of 5 per cent, per annum, payable semi-annually. By said trust deed, the grantors covenanted and agreed, among other things, to maintain upon the premises at all times until the full payment of said indebtedness, a -reputable lager beer saloon, to promptly pay all license fees therefor, to keep on hand for sale, and to sell, on said premises domestic beer adequate to the demands of the trade at said place, to purchase all such beer used at said place from the E. E. Stege Brewery, its successors and assigns, only, not to purchase, sell, use, "give away or dispose, and not permit to be purchased, sold, used, given away or disposed of, at said place, during said time, such beer of any other person, persons or corporation, not to lease or convey said premises except subject to the above agreements, and to enforce the observance of such agreements by the grantees, lessees and assigns of said grantors, which agreements, by the terms of said trust deed, were to be binding upon such grantees, lessees and assigns. From May 1, 1907, to about February 21, 1908, a son of plaintiff conducted a saloon business on said premises, but the same proved unprofitable. Plaintiff received no rent for the premises from his son during said period for the reason that the son did not make sufficient mopey out of the business to pay him rent, and plaintiff, as he testified, was “all the time donating money into it.” During February, 1908, they finally decided', if possible, to sell the saloon business and lease the premises. A prospective tenant was found who would lease the premises for saloon purposes for three years at a rental of $35 per month, providing certain necessary repairs were made upon the building, and would buy his beer from the Stege brewery. A few days prior to February, 21, 1908, according to the testimony of both plaintiff and his son, plaintiff, accompanied by said son, called upon George E. Stege, president of the brewery, at his office, informed him of their decision to sell the saloon business and to lease the premises, of the prospective tenant and under what conditions the latter would sign a three years’ lease for the premises, that the repairs necessary to be made to satisfy said tenant would cost plaintiff about $1,000, that plaintiff could not afford to disburse such a large amount in repairs and only receive in rent the sum of $35 per month, which was the highest monthly rental said prospective tenant would pay; that plaintiff then told Stege what improvements plaintiff proposed to make on the premises, whereupon Stege called attention to the cost of other interior improvements which would be necessary to make the place attractive and which he figured would cause an additional expense of about $360, over and above what plaintiff had mentioned; that after further conversation, Stege said to plaintiff, “If you go ahead and do these things I will make an arrangement whereby you can come out right on it; we can give you fifty cents a barrel on every barrel of beer sold there during the life of the lease. Go ahead and sigh that lease with these people for that amount of money;” and that, thereupon, plaintiff agreed to execute the proposed three years’ lease of the premises to said prospective tenant and further agreed to pay for all the repairs, including those mentioned by Stege, and Stege agreed to make settlements with plaintiff each month on the basis of fifty cents for each barrel of beer delivered by the brewery to said tenant on said premises. The testimony further shows that on February 21, 1908, plaintiff made a written lease of said premises, with the consent of the brewery, to said prospective tenant for three years from that date, at a monthly rental of $35, in which it was provided that plaintiff would make the improvements on the premises agreed upon during June, 1908, with an allowance of five dollars on the rental “for time no improvements made,” and in which it was further provided that “the beer shall not be changed unless with consent of the owner of the property;” that said tenant immediately after the execution of said lease entered into the possession of the premises and commenced running a saloon business; that from February 21, 1908, to March 1, 1908, eight barrels of beer were sold and delivered to said tenant on said premises by the brewery, for which plaintiff received from the brewery the sum of $4, which is at the rate of fifty cents per barrel; that from March 1, 1908, to October 1, 1909, 917 barrels of beer were sold and delivered to said tenant at said premises by the brewery; that plaintiff at no time has received from the brewery any money on account of said 917 barrels so delivered, which at fifty cents per barrel amounts to $458.50; that plaintiff had completed all of the improvements to said premises which he agreed to make at the time of the said conversation with Stege, at a cost of about $1,500, and had otherwise complied with his part of said verbal contract, all within one year from the date of said verbal contract, which was, as we have seen, a few days prior to February 21, 1908; that the president of the brewery, Stege, while admitting that he had a conversation with plaintiff and his said son, substantially as above outlined, and that he told plaintiff to go ahead and make the improvements, and that while the son of plaintiff was running* said saloon the brewery had allowed said son a discount of fifty cents per barrel for beer sold and delivered said son, denied that at said conversation, or at any subsequent time, he had agreed to allow plaintiff fifty cents per barrel for beer delivered to said tenant at said premises during the life of said lease, or any other amount.

The main contention of counsel for the brewery is that, considering that said verbal agreement was established by the evidence, said agreement by its terms was not to be performed within the space of one year from the making thereof, and is, therefore, void under the Statute of Frauds, and the judgment is erroneous. We do not agree with this contention. Plaintiff fully performed his part of the verbal contract. He executed a written lease to the proposed tenant, and that tenant immediately took possession of the premises and commenced operating a saloon. The tenant by the terms of the lease, as well as by the terms of the trust deed, was required to purchase his beer from the brewery, and did so. Plaintiff, also, made the improvements, which he had agreed to make, within the space of one year. Nothing remained to be done but the payment by the brewery to plaintiff of the money at the rate of fifty cents per barrel, for such beer as should be sold and delivered to said tenant at said premises during the period mentioned. “The Statute of Frauds cannot be interposed as a defense where the contract is fully performed on the part of the plaintiff; in other words, the Statute of Frauds cannot be availed of for the purpose of perpetrating a fraud.” MacDonald v. Crosby, 192 Ill. 283, 289; see also Hodgens v. Shultz, 92 Ill. App. 84, 86; Curtis v. Sage, 35 Ill. 22; Fraser v. Gates, 118 Ill. 99; Hulse v. Hulse, 155 Ill. App. 343, 348.

It is further contended by counsel for the brewery that the agreement lacked mutuality, in that the brewery could enjoy no benefits as a result of the performance of the agreement on the part of plaintiff, and that if the judgment stands, it in effect compels the brewery to partially pay for betterments to plaintiff’s property, made by plaintiff for his sole benefit. We think the brewery received benefits. The brewery was engaged in the business of selling lager beer. It had sold a considerable amount of beer to this saloon in the past at a profit. It was interested in having the saloon business and its deliveries of beer to said premises continue. There was danger of the place becoming vacant. If the improvements were not made, in all probability neither the proposed tenant nor anyone else would conduct a saloon business there. While it was a financial benefit to plaintiff to obtain a tenant for his property, it was also of financial benefit to the brewery to make the arrangement with plaintiff, whereby he was induced to agree to make the improvements demanded, thereby enabling the brewery to continue its sales and deliveries of beer to said premises. The judgment of the Municipal Court is affirmed.

Affirmed.

Mr. Justice McSurely dissents.


text:
    Charles B. Wingate, Defendant in Error, v. Pere Marquette Railroad Company, Plaintiff in Error.
    Gen. No. 16,788.
    1. Common carriers — wJiat is baggage. Photographs carried by a furniture salesman are baggage for which recovery may be had, where they cover the entire line, which is not covered by catalog or otherwise, and contain valuable memoranda, as to the woods and prices and where they were to be used at a furniture exposition.
    ' 2. Common carriers — questions for jury. It is for the jury to determine what may properly be regarded as baggage within the rule.
    Error to the Municipal Court of Chicago;' the Hon. MIax Eberhardt, Judge, presiding. Heard in the Branch Appellate Court' at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Glennon, Cary, Walker & Howe, for plaintiff in error.
    Mayer, Meyer, Austrian & Platt, for defendant in error; Bills, Streeter & Parker, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action in tort in a fourth class case brought in the Municipal Court of Chicago by Charles B. Wingate, defendant in error and hereinafter called plaintiff, against the Pere Marquette Railroad Company, a corporation, plaintiff in error and hereinafter called the company. Plaintiff’s claim was “for the loss of a suit case of the value of $6, 1,000 photographs of the value of $250, one shirt of the value of $1, one pair of pajamas of the value of $1,” which plaintiff in his statement of claim, alleged that he delivered into the custody of a parlor car porter of the company, while he was traveling from Grand Rapids, Michigan, to Chicago, Illinois, on June 30, 1909, as a passenger on a train of the company, hut which suit case the company failed to return to him at the end of his journey, the same having been lost through the failure of the company to use due care. The cause was tried by a jury and a verdict was returned assessing plaintiff’s damages at the sum of $207, upon which verdict the court entered judgment. This writ is prosecuted to reverse that judgment.

Upon the trial the following facts were disclosed: Plaintiff was the manager of the Boston branch of S. Karpen & Bros., manufacturers of furniture. He arrived at Grand Bapids on June 27th from Boston, going to Grand Bapids to see furniture buyers and interest them in the articles of merchandise manufactured by his employers, intending subsequently to go to Chicago for the same purpose. He testified that it was the custom of all furniture houses to ship their sample lines to Grand Bapids and also to Chicago for expositions held at both places from the 20th of June until the latter part of July in each year; that he went to Grand Bapids first because he knew that certain buyers attending said expositions were accustomed to go to Grand Bapids prior to going to Chicago; that when he went to Grand Bapids he had with him the photographs mentioned in Ms statement of claim for the purpose of showing same to prospective buyers there and elsewhere; that when he left for Chicago he had finished the business which had called him to Grand Bapids and that he took said photographs with Mm to Chicago for the additional purpose of having the same there revised. He further testified that there were jotted down on the backs of said photographs memoranda of the woods of the furniture and of the prices thereof; that said photographs containing said memoranda were sometimes used because the samples of all of the goods would not always be on the floor; that S. Karpen & Bros, employed ten or twelve salesmen; that each salesman had a set of these photographs, the cost of which was paid by his employers, and the same were their property; that his employers also published a printed catalogue, but that the same did not cover the entire line, while the photographs did so completely, and that said photographs were made in February, 1909, the original negative costing $1.50 and each photograph 25 cents. He further testified that he left Grand Rapids for Chicago late in the afternoon of June 30, on a train of the company; that he was in the parlor car; that he had two dress suit cases with him, one containing his “personal belongings,” and the other containing the 1,000 photographs mentioned, together with a shirt costing new $2.50, pajamas costing new $2.50, and the suit case $8.00. It appeared that just as the train was entering the station at Chicago, the porter of the parlor car took both suit cases to the vestibule of the ear and came back into the car without the suit cases to call the passengers, and that when plaintiff went, and the porter returned, to said vestibule, the suit case containing said photographs was missing and could not be found, and has not since been returned to plaintiff.

Counsel for the company in their brief state that “the remaining evidence is not material to the sole question which the company desires to raise on the record, that is, whether or not the photographs in question were properly personal baggage of a passenger in a parlor car, for the loss of which the company wonld be liable to respond in damages.” We will, therefore, limit ourselves in this opinion to a discussion of this question.

After a careful examination of the record, of the exhaustive briefs filed by counsel for the respective parties and of many authorities, we have reached the conclusion that under the facts in this case the photographs in question were the baggage of the plaintiff, and that the company is liable to respond in damages for their loss.

“A common carrier of passengers is responsible for the baggage of a passenger. Bnt what shall be deemed baggage becomes, under some circumstances, a question of doubt.” Chicago, etc., R. R. Co. v. Collins, 56 Ill. 212, 217; 6 Cyc. 662.

In 4 Elliott on Railroads, Sec. 1646, it is said:

“It is somewhat difficult to give an accurate definition of the term baggage. In its broadest sense it denotes those things which a passenger takes with him on his journey, either for his use while in transit or to accomplish the ultimate purpose of his journey, and may include not only things taken for the personal convenience of the passenger, but also merchandise knowingly received and carried along with the passenger as baggage. In its strictest sense it may be defined as meaning those things which passengers of the same class usually or fittingly carry with them for their personal use or convenience on similar journeys. * * * In determining whether or not any particular article is baggage many things are to be considered, such as the station which the person who owns the baggage occupies in life, the length and duration of his journey, the period of his stay at the place to which he may be traveling, the purpose of his journey and often the business in which the person may be engaged.”

In Macrow v. Great Western Ry. Co., 6 L. R. (Q. B.) 612, 622, it was said:

“We hold the true rule' to be that whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose, of the journey, must be considered as personal luggage. This would include not only all articles of apparel, whether for use or ornament, * * * but also the gun case or the fishing apparatus of the sportsman, the easel of the artist on a sketching tour, or the books of the student, and other articles of an analogous character, the use of which is personal to the traveler, and the taking of which has arisen from the fact of his journeying.”

In Woods v. Devin, 13 Ill. 746, it was held that a common carrier of passengers was liable for the loss of a pocket pistol and a pair of dueling pistols contained in the carpet bag of a passenger, which was stolen out of the possession of the carrier. In this case the court (p. 750) said that the term “baggage” includes ‘ ‘ such articles of necessity and convenience as are usually carried by passengers for their personal use, comfort, instruction, amusement or protection,” and that “regard might, with propriety, be had to the object and length of the journey, the expenses attending it, and the habits and condition in life of the passenger.” See also Parmelee v. Fischer, 22 Ill. 212; Lake Shore, etc., Ry. Co. v. Hochstim, 67 Ill. App. 514.

In Illinois Central R. R. Co. v. Copeland, 24 Ill. 332, it was decided that a reasonable amount of bank bills might be carried in a trunk and their value recovered as lost baggage.

In Werner v. Evans, 94 Ill. App. 328, this court decided that a valise containing articles of personal apparel and certain record books used by appellee “in her vocation as nurse” was baggage, and that the value of said valise and contents could be recovered in an action against parties doing an express and storage business, in whose hands the same had been given for conveyance, and while' in their hands had been lost.

In Atwood v. Mohler, 108 Ill. App. 416, it was held that a camera and its belongings contained in a grip were baggage, such as a common carrier of passengers would be responsible for.

In Hannibal, etc., R. R. Co. v. Swift, 12 Wall. 262, it was held that surgical instruments in the case of a surgeon in the army traveling with troops, constituted a part of his baggage.

In Staub v. Kendrick, 121 Ind. 226, where a valise, which was given in charge of the agent of one engaged in transferring baggage to be conveyed from one depot to another, was lost through the agent’s negligence, it was held that the carrier was liable for the value of the contents of the valise, including a traveling salesman’s catalogue, which was a book carried by him for his personal use and convenience, and used by him in his business and in the discharge of his duty.

In Gleason v. Goodrich Transportation Co., 32 Wis. 85, it was held that a manuscript “price book,” which plaintiff carried about with him in his valise while engaged as traveling agent in selling Sheffield goods, and which contained the prices of the component parts of such goods, and which was used by him when making sales to ascertain values which he could not carry in his memory, was a part of his personal baggage.

In Hopkins v. Westcott, 6 Blatch. (U. S.) 64, it was held that manuscript books, the property of a student and necessary to the prosecution of his study, are to be regarded as baggage.

In Kansas City, etc., R. R. Co. v. Morrison, 34 Kan. 502, it was held that a reasonable quantity of the tools of a mechanic working as a watch maker and jeweler was baggage. See also Missouri, etc., Ry. Co. v. Meek, 33 Tex. Civ. App. 47.

In Runyan v. Central R. R. Co., 61 N. J. L. 537, the court held that while a traveler cannot take with him as personal, baggage mere merchandise, the use of which is not personal to him in accomplishing the purpose of his journey, nevertheless a satchel, containing a pair of gloves, some catalogues and memoranda carried for the business purposes of his journey and which had been in use by him, was personal baggage. In this case the court said (p. 541):

“He was entitled to take with him for use his personal baggage appropriate to the journey and its object — that is, not only wearing apparel for use and ornament, but also other articles, all within reasonable limit, the use of which was personal to him during his journey and in accomplishing its purposes. To illustrate the character of such articles, other than wearing apparel, it is settled that a sportsman journeying for sport may take his gun or fishing apparatus (Hawkins v. Hoffman, 6 Hill 586); an artist may take his easel when he is on a sketching tour (Merrill v. Grinnell, 30 N. Y. 594); etc.”

In Voss v. Wagner Palace Car Co., 16 Ind. App. 271, it was held on a rehearing that, where the porter of a sleeping car, in pursuance of his duties and custom took charge of a passenger’s baggage, for the purpose of removing it from the car at the passenger’s destination, the car company became liable therefor if such baggage was lost or stolen through the negligence of its employees. See also Voss v. Wagner Palace Car Co., supra; Kinsley v. Lake Shore, etc., R. R. Co., 125 Mass. 54.

We are not unaware of the fact that there are to be found cases decided by the courts of other states which are seemingly at variance with the current of authority as above outlined. See McElroy v. Iowa Central Ry. Co., 133 Iowa, 544; Yazoo, etc., R. R. Co., v. Georgia Ins. Co., 85 Miss. 7.

This case was tried by a jury and in our opinion the jnry were properly charged by the court. And “the question of whether any particular article, * * * may properly be deemed baggage, in view of the nature of the journey and the circumstances and condition of the passenger, is for the jury” (6 Cyc. 667). “The question what articles of property, as to quantity and value, contained in a trunk, may be deemed baggage within the rule, is to be determined by the jury according to the circumstances of the case, subject to the power of the court to correct any abuse.” Oakes v. N. P. R. R. Co., 20 Ore. 392, 397; see also Railroad Co. v. Fraloff, 100 U. S. 24; Dibble v. Brown, 12 Ga. 217; Ouimit v. Henshaw, 35 Ver. 605; Brock v. Gale, 14 Fla. 523; Kansas City, etc., Co. v. Morrison, supra; Missouri, etc., Ry. Co. v. Meek, supra. The jury in effect found by their verdict that the photographs in question were baggage, and that verdict should not be disturbed under the law as applied to the facts of this case.

For the reasons indicated, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Rustler Ditch & Mining Company, Appellee, v. Frederick H. Herhold, Appellant.
    Gen. No. 16,805.
    1. Evidence — not error to strike out where subsequently admitted. Error is not committed in striking out testimony where full latitude is subsequently allowed in the examination as to the matter stricken.
    2. Assumpsit — evidence. A finding and judgment in assumpsit that defendant is indebted to plaintiff is not contrary to the evidence where there is strong evidence that the defendant in his personal capacity received money in trust for the plaintiff as indicated by a receipt and not as president of a company from which he has retired.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Ira C. Wood, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action of the first class in assumpsit, brought in the Municipal Court of Chicago, November 11, 1909, by the Rustler Ditch & Mining Company, a corporation, appellee and hereinafter referred to as the Rustler Co., against Frederick H. Herhold, appellant and hereinafter referred to as defendant, to recover the sum of $1,000, aud interest, received by defendant in June, 1906, which, moneys, as it was claimed, should have been paid to the Bustler Co. by defendant, but had not been. The defendant pleaded the general issue and filed an affidavit of merits, in which it was stated that defendant was not and never had been indebted to the Bustler Co. in any sum whatsoever. The cause was submitted to the court without a jury, resulting in a finding by the court for the Bustler Co. for $1,000, upon which finding judgment was entered. This appeal is prosecuted to reverse that judgment.

The material facts are as follows: For several years prior to January 3,1908, and at the time defendant received the $1,000 in question, he was the president and treasurer of the Campion Mining & Trading Company, a corporation hereinafter called the Campion Co., and was the owner of about three-fourths of its capital stock and his father was the owner of a portion of the remaining fourth. The Campion Co. owned about one fourth of the capital stock of the Bustler Co. The defendant was also a member of the firm of F. Herhold & Sons, chair manufacturers, with office and factory located in the city of Chicago. C. W. Hamilton, residing in Milwaukee, Wisconsin, was the president of the Bustler Co., the mining operations of which company had not proven profitable. In the summer of 1905, John E. Heston, acted as agent for the Bustler Co. at Nome, Alaska. He sold some mining supplies for the company, receiving therefor the sum of $2,000, did some assessment work for the company, expending therefor the sum of $1,000, and early in the year 1906 brought back to Chicago the balance of $1,000, which he held in trust for the Bustler Co., called on defendant at his chair factory and told the latter that he had $1,000 to turn over to either Hamilton or the Bustler Co. On March 6, 1906, the defendant wrote Hamilton, “I saw Heston some time ago. He told me what he had done with the property of the Bustler Co. * * * that he had in his pocket $1,000 to turn over to you. I told him to be sure * * * and turn it over to you only, that I thought you were the only proper person to receive the money. I was sorry afterwards that I did not induce him to turn it over to me, and I could then send it to you.” On June 2, 1906, Heston again called on the defendant and turned over the $1,000 in currency to him, and defendant at that time signed and delivered to Heston the following receipt:

“Chicago, June 2, 1906.
Beceived from John E. Heston one thousand dollars ($1,000), being the money that he has held in trust for the Bustler Ditch & Mining Company.
F. H. Herhold.”

According to Heston’s testimony (taken by deposition) as to what occurred at this interview, Heston told the defendant that Hamilton had requested him to turn over this $1,000 to defendant as he understood defendant was going to Milwaukee shortly and could then turn over the money to Hamilton; that defendant said that he believed Hamilton was entitled to this money, as Hamilton was the only party who had put up any money for the Bustler-Co., and that he was going to Milwaukee in a day or two and would turn over the money to Hamilton.

As to the defendant’s version of what occurred at this interview of June 2, 1906, he testified at the trial in April, 1910, as follows:

“In the course of the conversation the question came up about the money he was carrying around with him, and he reached down in his pocket, produced the currency, laid it on my desk, and said, ‘The Campion Co. is one of the largest stockholders in this thing. Suppose you credit this up, give me credit for it, and, in the Spring when I do the assessment work again, send it to me. ’ I refused to take it at first. He' said that I might as well credit him up with it and give him a receipt for it. * * * I finally said I would give Mm, or the Rustler Ditch, credit for the money on the Campion books, and he said that was all right; * * # I jqien dictated the receipt to a stenographer. * * * The receipt is not as I dictated it. * * * I dictated it, ‘Campion Mining & Trading Company,’ and the line ‘President,’ and I signed it while we were sitting there and talking, and so didn’t read it. * * * I have tried to find the shorthand book, and our stenographer cannot read it. It is another system. I don’t think the stenographer I dictated the receipt to is in Chicago any more. We tried to locate him last week, but could not find him. I did not tell Mr. Heston I was going up to Milwaukee in a day or two and was going to turn over the thousand dollars to Mr. Hamilton. I did not tell Mr. Heston that Mr. Hamilton was entitled to this thousand dollars, instead of the Rustler Co.; that question never came up. * * * I saw Heston again a few days afterwards at my house, which was the last time I ever saw him.”

On June 9, 1906, the defendant wrote Hamilton at Milwaukee, “I have the $1,000 from Heston. * * * Some day next week will come up to see you.” On June 11th, the defendant again wrote Hamilton, “As I wrote you Saturday, I have the $1,000, and expect to be in Milwaukee some time this week, when I will call on you.” In neither of these letters did the defendant mention, (as he testified on the trial had been done on June 5, 1906), that he had deposited said $1,000 in the bank account of the Campion Co. to the credit of the Rustler Co. At the trial, the defendant offered in evidence a page of a book, which he testified was a memorandum cash book which he personally kept at his office in the chair factory for the Campion Co., as treasurer of that company; that the entries therein were in his own handwriting, made at or about the time of each transaction, and were true and correct; that it was a book of original entry, from which the bookkeeper of the Campion Co. posted the entries therein into the general books of the Campion Co.; that the particular entry on said page of said memorandum book was, “Dr. — Cash—6-5-1906—Rustler Ditch Co., $1,000,” that this entry was posted into the books of the Campion Co. about that date by said bookkeeper, and that he personally saw the bookkeeper so post this particular entry, being present at the time at the office of the Campion Co. in the Merchants’ Loan & Trust Building in Chicago. The page of said memorandum book was admitted in evidence. On cross-examination of the defendant it developed that said entry had been mutilated by an apparent erasure and substitution, that said memorandum book did not contain solely the transactions of the Campion Co.; that defendant had some old individual memoranda in the front part of the book, relative to other companies he was interested in, and that in making the Campion Co. entries therein defendant had started from the back of the book and worked toward the front.

On July 13, 1906, Hamilton, in reply to the defendant’s letter in which defendant suggested that more money be raised to prevent the Rustler Co. losing all its rights, wrote defendant, “I have been the only one that has put up the cash and have held the bag ever since the company was started and am through putting up money. The company is out of debt and, in fairness to me, any money that is on hand should be turned back to me and the company wound up.” On September 8, 1906, Hamilton again wrote the defendant, “Have not seen anything of you since you wrote you had $1,000 of the Co.’s money rec’d from Heston. * * * It looks like a dead duck, and I would like to have some action by the Co., authorizing the return of that $1,000 to me, which is only giving me back part of my * * * money.”' On October 4, 1906, Hamilton again wrote the defendant saying he had not received any reply to his letter of September 8th. On October 30, 1906, Hamilton again wrote the defendant, “You might send the check for the balance of the money turned over by Heston.” But defendant did not send the money, and in the fall of 1906, Hamilton went to Chicago and saw the defendant. Up to this time, notwithstanding Hamilton’s numerous requests for the money, Hamilton had not been advised by defendant that the latter had deposited the money in the funds of the Campion Company to the credit of the Enstler Company.

Hamilton and the defendant agree in their testimony that subsequently to October, 1906, they had three interviews in Chicago, relative to this money; one in the fall of 1906, one in the winter of 1907, about two months later, and one in November 1909, shortly before' the beginning of this action. As to the first interview, Hamilton testified that he asked defendant for the money, that defendant said he was willing to turn it over to Hamilton, but that Heston had given it to defendant and he could not afford to take the chance of giving it to Hamilton or the Eustler Company, and then have Heston make a demand oh him for the money, and that, therefore, he would not, without direct authority from Heston, pay the money to either Hamilton or the Eustler Company. The defendant in his testimony practically corroborates Hamilton’s statement, as above, as to what was said at this first interview, only he says' that he also told Hamilton that he had deposited the $1,000 in the funds of the Campion Company, and had given the Eustler Company credit for the same on the books of the Campion Company. And Hamilton says that defendant told him this at either the first or second interview, and he replied to - defendant that that fact did not interest him, as he was looking solely to defendant for the money and wanted it immediately. Both Hamilton and defendant testify that at the second interview, in the winter of 1907, Hamilton made another demand for the money, but defendant again refused to pay over the same without an order from Heston, and defendant said he would write and see if he could locate Heston and endeavor to get the order from Heston. Defendant testified he wrote several letters to Heston but that these letters were returned to defendant, that he was unable to locate Heston and never at any time heard from him by mail, and he further testified that at the times of said first and second interviews he was president and treasurer of the Campion Company, and could have, as such, paid the money over if he had desired to. Subsequently to said second interview, on February 25,1907, Hamilton, as president of the Bustler Company, wrote defendant, “Have you heard from Heston, or has he sent an order to turn the $1,000 over to the Bustler Co. ? I wrote him but have no reply as yet,” to which defendant replied on the following day to the effect that he had not succeeded in locating Heston, that recently he wrote Heston to a new address, which he had obtained, and that defendant would advise Hamilton as soon as he heard from Heston. On April 23, 1907, Hamilton, as president, again wrote defendant, inquiring if the latter had succeeded in locating Heston, to which defendant replied that he had not. On January 10, 1908, Hamilton again wrote defendant to the effect that Hamilton had been endeavoring to ascertain the address of Heston, but that his letters addressed to Heston at Denver and Nome, Alaska, had been returned, and that Hamilton could not understand why defendant should not forward the money to the Bustler Company, so that the winding up of its affairs might be facilitated, and requested a prompt reply. No reply to this letter was received. Defendant testified that on January 3, 1908, he resigned his position as president and treasurer of the Campion Company and on that date ceased having any connection with or interest in that company.

Heston was finally located in Denver, Colo., in October, 1909, by George C. Weiss, vice-president of the Bustler Company. Heston testified that he there delivered to Weiss an order on defendant, dated October 19, 1909, directing and demanding defendant immediately to turn over the money to either Hamilton or the Eustler Company. Weiss brought that written order to Chicago. Heston further testified that about October 19, 1909, he deposited in the mail at Denver, Colorado, a registered letter, dated October 19, 1909, addressed to the defendant, care of the chair factory, Chicago, in which Heston wrote that he had just recently learned that defendant had not turned over the money, which he had paid defendant in the spring of 1906, either to the Eustler Company or to Hamilton, and in which Heston further stated, “It was our understanding at the time that you would immediately turn over that money” to Hamilton, president of the company. “I hold your receipt for same. * * * You know, very well, that you would not have been paid this money under any other circumstances, and your holding it is a betrayal of trust. ’ ’ Heston further testified that said letter, so registered, was returned to him unopened at Denver, with the outside of the envelope marked by the postal authorities, “Eeturned to Writer * * * Eefused.” This original envelope, so marked, also bore on its face, when it was mailed to defendant, the words “John E. Heston, Denver, Colo.,” and the same was attached to Heston’s deposition as an exhibit. Heston further testified that immediately after the return to him of said registered letter unopened, he opened the envelope and enclosed the letter in a plain envelope, without any return address thereon, addressed to defendant, care of the chair factory, Chicago, and that the same was never returned to him.

In November, 1909, Hamilton called at defendant’s office in Chicago. George C. Weiss was with him. Hamilton had with him the order which Heston had given Weiss, and he showed said order to defendant and demanded the money, but defendant said that he could not no'w pay over the money; that he was no longer president and treasurer of the Campion Company; that he had sold out all of his interest therein on January 3, 1908; that the money was in the hands of the Campion Company, and that he now had no control over it. Hamilton replied to this that it made no difference to him what defendant had done with the money, and that he looked to defendant, personally, for it, but defendant again refused to pay the money and Hamilton and Weiss left the office and shortly thereafter this action was commenced. Weiss testified that in the fall of 1907, he had a conversation with defendant about getting an order from Heston for the money, and that at that conversation defendant said that if an order to pay'the money was procured from Heston, he, the defendant, would turn over the money. The defendant admits. having this conversation, but says that he used the word “we,” meaning that upon getting said order the Campion Company would turn over the money.

Among the several errors assigned, but two are argued by counsel for appellant in their brief, viz., (a) that the judgment is contrary to the evidence, and (b) that the court erred in refusing to admit certain offered testimony of the defendant in reference to the giving by him of the receipt to Heston.

As to this alleged error of the court in not admitting said testimony of the defendant, it is true that on the direct examination of the defendant his testimony, as to his having dictated the receipt as the receipt of the Campion Company, to be signed by him as president of that company, instead of by himself personally, was on motion of counsel for plaintiff stricken out by the court. But, on re-direct examination of the witness, the court allowed the fullest latitude to the witness in stating all the circumstances relative to the signing of said receipt. We do not think any error was committed in this particular.

We are also of the opinion that the finding and judgment of the court are not contrary to the evidence. Counsel for defendant argue that the defendant “vas always ready and willing” to turn over this $1,000 to the Rustler Company upon an order from Heston at any time up to January 3,1908, when defendant ceased to be an officer and stockholder of the Campion Company. We cannot agree with counsel. . Furthermore, we think that the entire record of the case clearly shows that the money was left with the defendant, personally, in trust, to be paid over on demand to the Rustler Company or to Hamilton, president of that company, and that it should immediately upon demand made have been so paid over by defendant.

The judgment of the Municipal Court is affirmed.

Affirmed.