text:
    Boris Wasilevitsky, Appellee, v. City of Chicago, Appellant.
    Gen. No. 38,071.

      Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Joseph J. Sullivan and Edmund J. Mulcahy, Assistant Corporation Counsel, Samuel Allen, Lionel J. Berg and Robert E. Dowling, Jr., Assistant City Attorneys, of counsel.
    Mitgang & Baskin, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for personal injuries claimed to have been sustained by him through the negligence of one of defendant’s employees in driving a garbage motor truck to which three trailers were attached.

May 22, 1934, there was a jury trial, and at the close of plaintiff’s evidence defendant’s motion for a directed verdict yas sustained and a ¡verdict rendered accordingly. June 2nd following plaintiff’s motion for a new trial was allowed and the following November there was another trial and a verdict and judgment in plaintiff’s favor for $6,000, and defendant appeals.

The record discloses that about eight o’clock on the morning of October 20, 1932, plaintiff, a peddler, was putting some of Ms goods into Ms automoMle parked in front of Ms home at 1448 North Campbell avenue, a north and south street, preparatory to departing for the day to peddle or sell Ms goods; he was at the curb side of the automobile when a garbage motor veMcle, to which were attached three trailers, was being driven south in Campbell avenue; the rear trailer, which was tipped toward the west, struck plaintiff’s automobile with such force as to severely injure plaintiff.

Louis Kornfeind, called by plaintiff, testified that lie saw the accident; that a truck to wMch were attached three trailers was being driven south in Campbell avenue; that one of the trailers seemed to be tipped over toward the west; that it struck plaintiff’s automobile which was standing at the curb and threw plaintiff against the railing around the lawn in front of the house. Some man came along with a car, picked up plaintiff, who seemed to be unconscious, and took him to a hospital. He further testified that he lived about a half block from the scene of the accident and was out looking for a job; that after the collision the trailer “went down to about the middle of the block until he stopped after he hit the car”; that the words “City of Chicago” were on the side of the trailer.

Max Koltz, who lived at the same address as plaintiff, testified that he was plaintiff’s landlord; that the accident happened about eight o’clock in the morning; that he was in front of his house coming back from the grocery store; that he saw a city garbage wagon with three trailers coming south in Campbell avenue “making a racket coming down there”; that he heard a crash; that one of the trailers struck plaintiff’s car; that plaintiff was standing on the curb side of his car and was knocked down and fell against the railing around the grass parkway; that he was dragged about three feet; that witness walked over, picked plaintiff up and put Mm on a bench; that he rang a bell and plaintiff’s son and wife came out and a salesman came from a grocery store and took plaintiff in Ms automobile to a hospital; that it was a city garbage truck;' that he thought it had letters on the side, “City of Chicago.”

Bruno Borucki, who lived next door to plaintiff, testified that he saw the accident; that a garbag’e truck with three trailers came south on Campbell avenue; -that the last trailer, which was tipped toward the west, struck plaintiff’s car and he was knocked down and injured; that “a couple of fellows grabbed ahold of him and put him on a bench”; that “the trailers puffed up about seventy-five feet away south from the accident”; that on the side of the truck were the words “City of Chicago.”

Plaintiff testified that at the time in question he was peddling “shoemakers’ supplies” all over Chicago; that on the morning in question he parked his car in front of his house; that he was standing on the running board with his body inside the car putting merchandise, which he expected to sell that day, into the automobile; that the truck hit his car and he did not remember anytMng until he found himself in the hospital.

TMs was all the evidence as to how the accident occurred. The City called no witness except a draftsman, who testified to notMng concerMng the accident. The City did not call the driver of the garbage truck or any other person and no explanation is made why he was not called, nor is there any evidence in the record as to what the driver of the truck did except that he stopped about 75 feet:' south of the place of the accident.

X-ray pictures of plaintiff are in the record. Dr. Diamond, who treated plaintiff, testified that he examined plaintiff on October 20th at the hospital, found he was tender on the left side of the chest, and ordered X-ray pictures taken, from which it appeared that plaintiff had sustained a fracture of the 8th, 9th, 10th, and 11th ribs of the left side; that there were some bruises on the left leg below the knee and ankle. He further testified about certain percentages of displacements of the ribs; that the vertebrae and spinal column showed some arthritic changes; that plaintiff had some form of arthritis prior to the accident; that he gave plaintiff opiates and electric treatment; that he was in the hospital four weeks and was then taken home and confined to his bed four weeks more; that the patient then came to his office two or three times a week for about four months; that he was still coming on an average of about once or twice a month at the time of the second trial, which was in November, 1934, about two years after the accident; that he was of opinion that plaintiff’s injured condition was permanent ; that he rendered a bill of $425 and had been paid but $45 or $50.

Plaintiff testified that in his business as peddler he would visit about 80 or 90 customers once a week; that he kept a record of his daily sales and took in about $100 a day.

Defendant complains of instructions No. 6 and No. 8, given at plaintiff’s request. Neither of the instructions is in the brief and we might therefore ignore the point. General Platers Supply Co. v. L’Hommedieu & Sons Co., 228 Ill. App. 201; Roy Iverson Co. v. U. S. Lloyds, 251 Ill. App. 150. But the objection by defendant seems to be that each of the instructions “ignored the fact that the evidence showed that at the time of the accident the City was engaged in a governmental function,” and therefore there was no liability. There is no merit in this contention. Whether the defendant City was operating a garbage truck and trailers in a governmental or ministerial capacity was a question for the court and not for the jury.

A further point is made by defendant that the judgment is excessive. We have above set forth the substance of the evidence as to the nature and extent of plaintiff’s injuries, which the doctor testified were permanent. He was confined to his bed about eight weeks, suffered four fractured ribs and other injuries, and incurred considerable expense in doctor and hospital bills. Upon a consideration of all the evidence we are unable to say that the verdict is so excessive as to warrant interference on our part.

Defendant makes a further contention that the evidence is insufficient to show ownership and operation of the truck and trailers by the City in the removal of garbage. We think this was a question for the jury. Plaintiff’s evidence tended to show that the truck and trailers were used for the disposal of garbage by the City, and there was no evidence to the contrary. No attempt was made on behalf of the City to account for the failure to call the driver of the truck or any other witness.

Defendant further contends that even if the truck and trailers were being operated by the City for the removal of the garbage at the time in question, there was no liability because the City was engaged in a governmental function and therefore it was not liable for the negligence of its servant in driving the truck.

Whether the City was acting in a governmental capacity at the time in question, in which case there would be no liability, or whether it was acting in a ministerial capacity, in which case there would be liability, is a question not free from difficulty. Somewhat similar questions have been before the courts of this country on numerous occasions and the opinions and decisions are irreconcilable. And as pointed out by this court in Bedtke v. City of Chicago, 240 Ill. App. 493, we think the reason for such diversity of opinion has “arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a municipal corporation for negligence in affirmative conduct, should be abandoned. 34 Yale Law Journal, 229; 4 Dillon, Mun. Corp., p. 3002.

“ ‘Injuries caused by negligence of municipal employees are proper items of expense to be borne by the community. For omission to perform public duties running to the community as a whole there should of course be no municipal liability to private individuals. But in the undertaking of an affirmative course of conduct it is immaterial that the duty being performed is a public one from which the municipality derives no profit. Liability should be based upon the exaction of the law that everyone, in the performance of an affirmative course of conduct, must at his peril measure up to a standard of due care. ’ 34 Harv. Law Rev., p. 66.”

In the Bedtke case we held that the City of Chicago was liable for the negligence of its servants in the use of a portable incinerator in an alley back of plaintiff’s premises which caused the destruction by fire of certain personal property belonging to plaintiff. Certiorari was denied by the Supreme Court (241 Ill. App. XV). In that case we discussed a number of authorities, among them Johnston v. City of Chicago, 258 Ill. 494, in which it was held that the City was liable for an injury sustained by Johnston through the negligence of the driver of an automobile used to deliver books from the public library. The court there said (p. 497): “Counsel for appellant insist that the City of Chicago, in establishing and carrying on a public library, is simply exercising a public or governmental function as distinguished from a strictly municipal function, and therefore it is not liable for the negligent acts of its employees. . . . (499, 500). The organization of this public library is for the exclusive benefit of the territory of the City of Chicago and not for the State at large. It has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens. . . . When a city under no obligation to light its streets voluntarily undertakes to do so, it has been held liable for negligence in the management of its corporate property when used for such purpose.” And continuing the court said (p. 501): “In most jurisdictions in this country, however, a municipality is liable for failure to keep its streets in safe condition for public use. . . . This is the rule, as we have seen, in this State.”

In Hanrahan v. City of Chicago, 289 Ill. 400, plaintiff was injured as a result of a wooden awning, which extended over the sidewalk, falling and striking him. It was held that the City was acting in its ministerial capacity in repairing or removing obstructions from the street and for any negligence in this respect it was liable. In that case the court discussed a number of authorities and said (p. 405): “Where a municipal corporation is acting, within its authority, in a ministerial capacity in the management of its property or in the discharge of its duties in repairing or removing obstructions from streets, or is negligent in failing to discharge its, duties of keeping its streets in repair and in safe condition for travel, it is liable for all injuries caused by such negligence when the party injured is exercising due care for his safety. Johnston v. City of Chicago, 25.8 Ill. 494.

“A municipal corporation acts judicially when it selects and adopts a plan for the construction of a public improvement, but in carrying out such plan or in removing obstructions or dangers from its streets it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. (City of Chicago v. Seben, 165 Ill. 371.) ”

In Roumbos v. City of Chicago, 332 Ill. 70, the City was held liable for the death of a child which was caused by its clothing having caught fire from a fire set by a street cleaner to a pile of rubbish he had negligently left burning without watching it. The court there said (p. 74): “The division of municipal functions into public and governmental on the one hand and private and corporate on the other is not well defined, but is vague and indefinite. No definition of the terms has been declared which is of much practical value or ‘which will precisely embrace torts for which a civil action will lie, in the absence of a statute declaring the liability against a municipal corporation. ’ ... It has been said that all that can be done with safety is to determine each case as it arises.” And continuing said (p. 75): “The reason and essence of this rule is clear and easily to be understood, but its application to the specific cases is often of great difficulty. . . . (p. 76.) The grounds upon which the liability of the municipal corporation proper is usually placed are, that the duty is voluntarily assumed and is clear, specific and complete, and that the powers and means furnished for its proper performance are ample and adequate”; that if the work done was for the benefit of the “general public (the people of the State at large) ” there was no liability “but so far as their acts concern merely the interest of the particular locality and its inhabitants they are responsible, the same as private corporations. . . . ‘The rule of law is a general one that the superior or employer must himself respond civilly for the negligence or want of skill of his agent or servant in the course or line of his employment by which another who is free from contributory fault is injured. ’ (2 Dillon on Mun. Corp., sec. 968.) The application of this rule to municipal corporations in cases of torts by their employees and servants tends more to the securing of justice than the release of the corporations from the results which follow for private corporations or individuals.”

In Gebhardt v. Village of LaGrange Park, 268 Ill. App. 556, we held that the Village was liable for injuries suffered by a child through the negligence of the servant of the Village in driving an automobile which was used to transport children from the Village to a swimming pool located about seven miles outside the Village, which pool was being operated privately by a man and his wife. The basis of our decision was that since what was done by the Village was for the benefit of the inhabitants of the Village and not for the people of the State at large, the Village, in transporting the children to and from the swimming pool, was not acting in its governmental capacity. This holding was wrong. Gebhardt v. Village of LaGrange Park, 354 Ill. 234. One of the reasons for the reversal by the Supreme Court seems to have been that transporting the children to and from the pool was not specifically limited to the children of the Village. The court there said (p. 239): “Among the aims of government are those to foster and promote health, comfort, recreation and sanitary conditions for the public, and unless specifically limited to certain classes of persons or to citizens of the Village itself such benefit extends to the public generally. ’ ’ The court there discussed the case of Roumbos v. City of Chicago, 332 Ill. 70.

Counsel for the City, in its brief, cite the case of Consumers Co. v. City of Chicago, 313 Ill. 408, and many other authorities and contend that the Consumers case is controlling here. In that case a bill was filed by a taxpayer against the City and its officials to restrain the purchase of a tract of land to be used by the City as a dumping ground for garbage and other waste matter; and it was contended that a city ordinance which authorized the purchase of the property was invalid and that the City was limited by certain acts of the legislature. The question of the liability of a city for the negligence of its employees in the street cleaning department was not considered.

In a number of jurisdictions it has been held that the cleaning or sprinkling of streets or the removal of garbage is a corporate function to which the benefit to the public health is a mere incident, and that the municipality is liable for the torts of its employees engaged in such work. City of Denver v. Porter, 126 Fed. (C. C. A.) 288; City of Pass Christian v. Fernandez, 100 Miss. 76; Missano v. Mayor of New York, 160 N. Y. 123; Silverman v. City of New York, 114 N. Y. S. 59; Quill v. New York, 36 N. Y. App. Div. 476, 55 N. Y. S. 889; Flasmagan v. Bloomington, 156 Ill. App. 162; Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909 ; Denver v. Maurer, 47 Colo. 209,168 Pac. 857.

There are authorities holding to the contrary on the theory that cleaning streets and the removal of garbage are health measures and are therefore governmental. But, so far as we are advised, the collection and removal of garbage even as a health measure has never been adopted as a function of the general government. If a State does not owe the duty to the public to remove garbage, it is not clear how a municipality can be its agent exercising the delegated powers of the State in its performance. In the cases just cited it is held that the removal of garbage is directly for the benefit of the city’s residents in which the State, if at all, has only an indirect interest — a secondary consideration. We think this latter view is in accordance with common sense and sound reasoning and in line with the authorities of our own State, some of which are Johnston v. City of Chicago, 258 Ill. 494; Bedtke v. City of Chicago, 240 Ill. App. 493 — certiorari denied by the Supreme Court, 241 Ill. App. XV — and Roumbos v. City of Chicago, 332 Ill. 70.

We might also say, as evidencing the tendency of Illinois in holding municipalities liable for injuries caused by the negligence of its employees, that the legislature in 1931 passed an act mailing municipalities liable for injuries caused by the negligence of its firemen in the operation of a motor vehicle in the performance of their duties. (Par. 987(1), eh. 24, p. 593, Cahill’s 1933 Stats.) Heretofore we think it had been almost uniformly held that municipalities were not liable for injuries to persons caused by the negligence of its firemen, while engaged in the performance of their duties as such.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Roche Pharmacy, Inc., for Use of McKesson-Fuller-Morrisson Company, Appellant, v. Campus Pharmacy, Inc., and Edwin K. Roche, Appellees.
    Gen. No. 38,052.

      Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    Rehearing denied July 2, 1935.
    Siebel, Tell & Siebel, of Chicago, for appellant ; A. F. W. Siebel, William K. Tell and Arthur F. Siebel, of counsel.
    I. J. Berksch and John F. Shea, both of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

McKesson-Fuller-Morrisson Co., judgment creditor of Boche Pharmacy, Inc., caused Edwin K. Boche and Campus Pharmacy, Inc., to be summoned as garnishees. The garnishees answered severally, denying that they were indebted to the judgment debtor and asserting that they did not have in their possession any of its property, etc. The cause was heard by the court. There was a finding for the garnishees, and an order discharging them.

It is argued that Edwin K. Roche was liable by reason of his subscription to the capital stock which was unpaid of Roche Pharmacy, Inc. The charter for that corporation was offered in evidence. It appears to have been issued by the secretary of state October 17, 1932, upon a statement filed by the incorporators in his office on that date. The charter shows that the incorporators were Edwin K. Roche, Gerald C. Roche and Francis E. Phalen; that the capital stock of the corporation consisted entirely of common stock to the amount of $5,000 — 50 shares of the par value of $100 each; that Edwin K. Roche subscribed for 48 of these 50 shares. The charter also discloses that no cash was paid in for the capital stock and indicates that it was paid for in property consisting of a stock of drugs, chemicals, etc., located at 8109 North Cicero avenue. This charter was filed in the office of the recorder of deeds of Cook county, October 21, 1932.

Edwin K. Roche testified that the stock of drugs, etc., mentioned in the charter was never in fact turned in to the corporation; that he never received any shares of its stock; that the corporation never did any business, and that it abandoned the use of its charter.'

The judgment creditor contends that under the evidence E. K. Roche is indebted to the Roche Pharmacy, Inc., to the amount of $4,800, and that the indebtedness to the corporation can be reached by its creditors through garnishment.

Several sections of the Business Corporation Act, Laws of 1933, p. 308; Cahill’s Ill. Rev. St. 1933, ch. 32, are cited. "While the Business Corporation Act of 1933 repealed the General Corporation Act of 1919 (Cahill’s Ill. Rev. St. 1931, ch. 32, sec. 167, 158, p. 758), it also provided that its enactment should not affect the rights accrued under the prior General Corporation Act of 1919 (Cahill’s Ill. Rev. St. 1933, ch. 32, sec. 163, |f 158 (5), p. 757). The Act of 1933 is therefore not applicable to this proceeding, but on the contrary it is governed, by the General Corporation Act of 1919. Sections 51 to 53 of the last named act (Cahill’s Ill. Rev. St. 1931, ch. 32, secs. 51-53, JK 51-53, p. 744) seem to provide a proceeding by which creditors of a corporation may reach debts due to the corporation on subscriptions to capital stock which excludes the collection of the same by means of garnishment.

Section 51 provides that stockholders shall not be held liable for the debts of a corporation (incorporated under the laws of this State) because of any unpaid portion of stock liability, until the corporation has been adjudged bankrupt, or an execution upon a judgment or decree of a court of record for the payment of money, after demand made by the officer, has been returned “no property found” or has remained unsatisfied for 10 days after such demand, or the corporation has dissolved or ceased doing business, leaving debts unpaid. Section 52 provides that after such adjudication, or after the execution has been so returned, or after such dissolution or cessation of business, the officer of the corporation who has charge of the stock records, on request of any creditor of the corporation, or his attorney, shall furnish to him a certified list of the names and addresses of the officers and directors of the corporation and of all persons who were stockholders at the time the liability to be enforced against them personally accrued, the number and character of shares held by each stockholder and the amount remaining unpaid on their respective shares; that in case of failure to furnish such list within three days after such demand, a petition may be presented to the judge of any court of general jurisdiction of the county in which thq principal office of such corporation is located, who shall have jurisdiction, after two days’ notice to such officer, to enter an order directing the delivery of such list, and that a failure to comply with such order may be treated as contempt and punished accordingly. Section 53 provides that after such preliminary proceedings any creditor may bring suit in equity in any county in which the principal office of the corporation is located on behalf of himself and all other creditors against all persons who are liable in any way for the debts of the corporation, by joining the corporation in the suit, and that after exhausting the assets of such corporation, each stockholder will be required to pay his pro rata share of the debts and liabilities to the extent of the unpaid portion of the stock, etc.

The statute manifests the legislative- intention to provide a complete and exclusive method by which the liability of a stockholder for unpaid subscriptions to the capital stock of a corporation may be ascertained and appropriated by creditors of the corporation to the satisfaction of their debts. Section 51 provides that stockholders shall not be held liable upon their subscriptions until the conditions set forth in the statute have been met. It also seems to vest exclusive jurisdiction in the equity court. It is apparent garnishment which is in the nature of a special proceeding will not lie ag’ainst a subscriber to the capital stock on account of any unpaid subscription to the capital stock of a corporation organized under the G-eneral Corporation Act of 1919. For this reason, E. K. Boche was properly discharged. However, if the construction of the statute were otherwise, the evidence here was insufficient to show a liquidated indebtedness from E. K. Boche to the debtor corporation which would render him liable as garnishee since he never received the stock for which he subscribed and the company never functioned.'

As to the garnishee Campus Pharmacy, Inc., the judgment creditor argues that it was liable by reason of receiving goods in violation of the Bulk Sales Act (Cahill’s Ill. Rev. St. 1933, ch. 121a, fifí 1-3, P- 2462). Cases such as Cohn v. Malo, 198 Ill. App. 538, and Superior Plating Works v. Art Metal Crafts Co., 218 Ill. App. 148, are cited. These cases state unquestioned rules of law, which cannot be applicable, for the reason that the uncontradicted evidence is to the effect that the judgment debtor did not at any time transfer any property to the Campus Pharmacy, Inc.

For the reasons indicated the orders of the trial court are affirmed.

Affirmed.

O’Connor, P. J., and McSurely, J., concur.


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    Lena Rogers, Administratrix of the Estate of Leonard Ingstrom, Appellant, v. The Western and Southern Life Insurance Company, Appellee.
    Gen. No. 38,076.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed June 17, 1935.
    David S. Chesrow and Samuel L. Golan, both of Chicago, for appellant; Samuel L. Golan and Egbert S. Greenfield, of Chicago, of counsel.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellee; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff administratrix brought suit on a combined accident and life insurance policy issued to Leonard Ingstrom. The statement of claim alleged that while the policy was in force and sometime after August 22, 1934, Ingstrom came to his death as a result of bodily injuries sustained solely through external, violent and accidental means; that there were no defaults in the payment of the premiums; that the death of Ingstrom occurred within 90 days of the date of the bodily injury which caused his death and due proof of death was made by plaintiff and payment refused by defendant; that under the terms of the policy there was due to her $868.

Defendant filed an amended affidavit of merits denying that Ingstrom came to his death while the policy was in force and premium payments not in arrears, or that he died as a result of and within 90 days immediately following bodily injuries occurring on or after the date of the policy and caused by external violence and purely accidental means. The amended affidavit further denied liability on the ground of a provision in the policy to the effect that no obligation was assumed by the company, unless on the date and delivery thereof the insured was alive and in sound health, and averred that the insured was not alive and in sound health on the date of the delivery of the policy, and that, therefore, the policy was never in full force. The cause was tried by the court. There was a finding for defendant, upon which the court, overruling plaintiff’s motion for a new trial, entered judgment, which plaintiff asks us to reverse.

There is practically no conflict in the evidence. Leonard Ingstrom in August, 1931, was an unmarried man about 37 years old. He had for some time lived at 219 South Throop street, rooming in the home of the administratrix, plaintiff, Mrs. Rogers. He was about five feet, seven inches tall and weighed about 135 or 140 pounds; he usually wore a belt with his initials “L. I.” He was engaged in the exterminating business in co-operation with a man named Schwer.

The home office of the defendant insurance company is at Cincinnati, Ohio. It was represented in Chicago by an agent named Bucci. Between Bucci and Ingstrom (upon whose initiative it does not appear) negotiations were begun for the sale of insurance to Ingstrom. August 4, 1931, Bucci received from Ingstrom a deposit of $1.08, together with an application made by him on that date for an industrial life insurance policy on his life. Bucci gave Ingstrom a receipt for the money which stated that the amount was to be applied on account of premium in the event the policy issued, otherwise to be returned, adding:

“Provided the insured be in sound health and over six months of age on the date of said application the company’s liability under such policy, if and as issued, shall commence as of the date of said application.” The receipt directed attention to a notice printed on the right hand side of it to the effect, “Return this receipt if you get a policy, and see that the payment is entered in your book. ’ ’

The evidence tends to show that the insurance for which Ingstrom applied required a medical examination; that the physician for the company called several times for the purpose of making such examination without finding Ingstrom, and that it was finally suggested that Ingstrom should take a different policy which would not require a medical examination. August 10, 1931, Bucci took another application of Ingstrom for insurance on a printed form supplied by defendant, insurance company. At the top of the application under the designation “for home office use only” appear in red ink the numbers 8 24, immediately thereunder 1931, without any lines between them, and also 9,228,796, which is the number of the policy upon which this suit is based. The application is signed by Leonard Ingstrom and underneath is an agent’s certificate signed by Bucci, bearing the date of “8/10/1931.” On the reverse side of this application appears the certificate of defendant’s assistant under date of “8/11/31” to the effect that he personally made an inspection of the application and recommended that the policy applied for be issued. August 10, 1931, Bucci issued to Mrs. Rogers for Ingstrom a “temporary and conditional receipt” for 31 cents, which the receipt says is accepted on the statement that the premiums on the policy for which the deposit is made are not in arrears exceeding four weeks, the premium receipt book not being presented at the time of the deposit; that if the premiums are not in arrears exceeding four weeks, the deposit will be entered in the premium receipt book on presentation and surrender of the receipt, but if premiums are more than four weeks in arrears, the policy is lapsed and all previous payments are forfeited to the company according to the conditions of .the policy, and the company will be liable only for the return of the amount of the deposit.

Otto Miroff, the district manager of defendant company, testified that it was customary for the local agent to receive the application and send it to him (the witness) for approval; that he would send it on to Cincinnati; that at Cincinnati the policy would be sent back to his office, and that he would deliver the policy to the insured, “and that completes the transaction”; asked if that was what happened in this case, he replied, “Tes.”

The evidence shows that on August 22, 1931, the policy was delivered to Ingstrom at his home at 219 South Throop street; that at that time his hearing, sight, and general bodily health appeared to be good. The policy issued is on the form used by defendant company, bears the number 9,228,796, and in red letters under the designation “date of policy” appears “August 24, 1931.” It contains the following provision: “No obligation is assumed by the Company unless on the date and delivery hereof the Insured is alive and in sound health,” etc.

Mrs. Rogers last saw Ingstrom alive at his home on the 22nd day of August, 1931. No other witness saw him alive after that date. September 2, 1931 (11 days thereafter) the coroner of DuPage county, Dr. Paul A. Isherwood, who was a physician and surgeon, drove out to 79th street on the county line road, in company with the State’s attorney of that county and an investigator from the State’s attorney’s office. They found the body of a man lying face downward in the weeds. He was clothed and his hands were tied behind his back with a necktie. Upon going through the clothes they found a bank book of the Mid-City Trust & Savings Bank of Chicago bearing the name “Leonard Ingstrom,” a contract of the Supreme Exterminating Company on which was the name of the insured’s associate, Theodore Schwer, and a belt buckle of white metal with the initials “L. I.” thereon. The body was that of a male person, the doctor says about 30 to 35 years of age and about five feet, eight inches in height, weighing about 130 to 145 pounds. In the opinion of Dr. Isherwood the body had been dead about a week. He found nothing to indicate the cause of death. He says there is no way in medical science whereby it can be determined within a day or two how long a body in the condition of that of deceased had been dead; that it might have been less than a week, or more than 10 days. His best opinion was that the person had been dead about 7 to 10 days. The death certificate admitted in evidence gives the date of death as unknown. It is not disputed that the body was that of the insured.

The premiums paid on the policy were retained by defendant company, but after the beginning of the trial and before its end, a tender of their return, not including costs of suit, was made.

The contention of defendant company is that as the policy was dated August 24, 1931, it did not become effective until that date, and defendant says that there is no proof in the policy tending to show that the insured was alive on that date, and that it is therefore not liable under the terms of the policy; that the delivery alone was not sufficient to put the policy in force. With other cases defendant cites Union Bank of Chicago v. Metropolitan Life Ins. Co., 266 Ill. App. 345. In that case the policy bore the date of June 24, 1929, and the insured died June 22, 1929. There was proof tending to show that the policy was, in fact, executed on June 17th. The policy provided that the company assumed no obligation if the insured was not alive or was not in sound health “bn the date hereof.” The court there held that was a valid and subsisting condition, but that in view of the fact that the testimony was conflicting as to when the policy was delivered, it was error for the trial court to direct a verdict for the defendant. The opinion states: “The date of the policy was not in itself conclusive but was susceptible of extraneous proof for the purpose of showing the actual date of delivery.”

The proof here as to the actual date of delivery is uncontradicted, and plaintiff argues (plausibly, we think) that all the facts and circumstances in evidence indicate, in the absence of a provision stating the precise date upon which the policy should go into effect, that it was the intention of the parties it should become effective upon the date on which it was delivered to Ingstrom. The evidence shows that the delivery was absolute and by a duly authorized agent of the company ,• that nothing remained to be done by either of the parties, and that the contract of insurance was therefore complete at the time of the delivery on August 22nd. It is true, the policy bears the date of August 24th, but under all the circumstances we think its delivery by an authorized agent on August 22nd after the payment of premiums indicates the intention of the parties that the insurance contract should be effective as of that date. If we are correct in this interpretation of the insurance contract, the judgement must be reversed, and plaintiff is entitled to recover.

However, if we assume that the insurance contract did not become effective on the 22nd of August but on the 24th (and this is defendant’s contention), the question then arises whether plaintiff may recover in the absence of proof tending to show that deceased was alive and in sound health on that date. The provision of the policy is: “No obligation is assumed by the company, unless on the date and delivery hereof the insured is alive and in sound health. ’ ’ Although by its affidavit of merits defendant assumed the burden of proving the absence of life and health of the assured at delivery, it now earnestly contends that it was for plaintiff to prove that the insured was alive and in good health on August 24th, and says there is no such proof in the record, and for that reason plaintiff cannot recover. It is true that there is no direct proof that the assured was alive and in good health on August 24th, although we think it was a necessary inference from the uncontradicted proof that he was alive and in good health on August 22nd in the absence of evidence tending to show the contrary.

Defendant, however, contends otherwise and cites a large number of cases, some of which hold that a provision that the insured must be alive and in good health on the date of delivery of the policy is a condition precedent to liability, and that the burden is upon plaintiff to prove these facts in order to recover.

These cases purport to follow Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226. Some of the cases undoubtedly hold that such proof by plaintiff is a condition precedent to recovery. Such are Lewandowski v. Western & Southern Life Ins. Co., 241 Ill. App. 55; Dumara v. Western & Southern Life Ins. Co., 268 Ill. App. 626 (Abst.). In others, the court weighing the evidence, which was conflicting upon this point, held that the plaintiff could not recover. The language used was therefore not necessary to a decision. Sulski v. Metropolitan Life Ins. Co., 196 Ill. App. 76; Kunickas v. John Hancock Mut. Life Ins. Co., 253 Ill. App. 617 (Abst.); Dashner v. Federal Life Ins. Co., 259 Ill. App. 632 (Abst.). In others, the issue concerned the question of whether a policy, while yet in the hands of the agent of the insurance company, and, in fact, not physically delivered to the insured, was under the evidence delivered to the agent for the beneficiary. This was the case in Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226 (a well considered opinion) which opinions in some other cases purport to follow although it was (we' think) not applicable. Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83.

Murphy v. Metropolitan Life Ins. Co., 106 Minn. 112, cited by defendant and also cited in many of the cases upon which defendant relies, is, in fact, against defendant. The beneficiary there was afflicted with cancer at the time the insurance policy was delivered, and the court held that under the evidence the plaintiff could not recover, but said, “The burden of alleging and proving such fact was on defendant.”

There is conflict on this question in the decisions of the Appellate Courts of Illinois. In Middleton v. North American Protective Ass’n, 260 Ill. App. 288, the plaintiff sued upon an insurance certificate issued by the defendant insurance company, which had a by-law to the effect that no liability would arise against the association or benefit to the applicant until the delivery of the certificate while the applicant was in good health. The declaration did not aver such facts, and the trial court sustained a demurrer interposed to it. It was argued on appeal that the by-law created a condition precedent which must be averred and proved by the plaintiff, but the Appellate Court, recognizing the conflict in the decisions, said, ‘ The true rule based upon reason and justice must be that the provision in question does not create a condition precedent but is a matter of defense that must be pleaded and proven.” We are inclined to hold that this is an accurate statement of the law. To the same effect Is Luke Grain Co. v. Illinois Bankers Life Ass’n, 263 Ill. App. 576, 580.

In Swanson v. Prudential Ins. Co., 271 Ill. App. 309, this court, through Justice McSurely, said: has the burden of proving that the insured was in good health at the date the policy was issued. Dashner v. Federal Life Ins. Co., 259 Ill. App. 632 (Abst.) ; Dumara v. Western Southern Life Ins. Co., 268 Ill. App. 626 (Abst.). Plaintiff asserts that this is a matter of defense, citing Johnson v. Royal Neighbors of America, 253 Ill. 570; Fahey v. Chicago National Life Ins. Co., 263 Ill. App. 637 (Abst.), and other cases. We think the better reasoning supports this latter view. Manifestly, when an insurance company accepts a risk it will be presumed that it is satisfied with the physical condition of the insured. If it has been misled in this respect, this can be presented in defense.”

“Defendant asserts that it was a condition precedent to recovery that plaintiff prove that the insured on ■March 23, 1931, was in sound health, citing certain supporting cases which seem to hold that the plaintiff

The above rule becomes decisive of this case. Even if we assume (which is defendant’s position) that the insurance contract did not go into effect until the 24th day of August, 1931, under the pleadings the burden of proof was upon defendant to establish, if it could, that the insured was not alive and in good health on that date. There is no proof in this reg-ard from which the court could so find, and the finding of the trial court was therefore not sustained by the evidence. Upon the uncontradicted evidence we hold that plaintiff is entitled to recover.

The question of whether the death of the insured was accidental is not argued in the briefs. The statement of claim alleges that the death was accidental. That allegation is not specifically denied in the affidavit of merits. There is well considered authority to the effect that death under circumstances such as were proved here is accidental within the meaning of that term as used in accident insurance policies. Hutchcraft v. Travelers’ Ins. Co., 87 Ky. 300,12 Am. St. Rep. 484; Joyce on Insurance, vol. 3, secs. 2863, 2864, pp. 2810-2814.

We hold as a matter of fact and law that plaintiff under the evidence is entitled to recover the sum of $868, which we find to be due from defendant to plaintiff under the terms of the policy, upon which the suit is brought. The judgment of the trial court will therefore be reversed with judgment in this court against Western & Southern Life Insurance Co., and in favor of Lena Rogers, administratrix of the estate of Leonard Ingstrom, for $868.

Reversed with finding of fact and judgment here.

O’Cohnor, P. J., and.McSurely, J., concur.


author: Mb. Justice Matchett

text:
    The People of the State of Illinois for Use of Charles L. Seaman, Appellant, v. Annie Tawney and Elinore Wood, Appellees.
    Gen. No. 38,101.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.

      Louis Jaffe, of Chicago, for appellant; Hershenson & Hebshenson, of Chicago, of counsel.
    John A. Bloomingston, of Chicago, for appellees ; Stagy W. Osgood, of Chicago, of counsel.
   Mb. Justice Matchett

delivered the opinion of the court.

In an action apparently based on two bonds executed by Annie Tawney and Elinore Wood, there was a judgment that plaintiff take nothing by the suit, and from that judgment plaintiff has appealed. The facts aré not in dispute.

On December 1, 1933, Seaman recovered a judgment for $1,500 and costs against Elinore Wood in the superior court of Cook county. Upon this judgment a capias ad satisfaciendum was issued against Elinore Wood and she was taken into custody by the sheriff. Elinore Wood thereupon filed her petition in the county court under the Insolvent Debtors’ Act, Ca-hill’s St. ch. 72, praying that she might be discharged. Later she filed her bond to the People in the sum of $3,000, conditioned that she would appear before the county court on December 19, 1933, and from day to day and would surrender herself to the officer into whose custody she might be directed by the court and abide the order of the court.

February 16, 1934, the court heard the petition and found that malice was the gist of the action, wherein the judgment was obtained, and entered an order remanding petitioner to the sheriff. She was again taken into custody by the sheriff and remained in his custody until February 20, 1934, when she prayed an appeal to this court from the judgment of the county court; she filed in that court her bond to Charles L. Seaman in the sum of $2,000. The bond recited the judgments of the superior court and county court and was conditioned that if Elinore Wood would prosecute her appeal with effect and in case the appeal was dismissed, or the order or judgment of the county court affirmed, she would perform the same and would appear before and abide by whatever decision the Appellate Court should make in the premises; that she would not sell or dispose of any of her estate; then the obligation was to be void, otherwise to remain in full force and effect.

June 29,1934, her appeal to the Appellate Court was dismissed and the cause was remanded to the county court. July 12, 1934, the remanding order was filed in the county court directing a procedendo to issue on due notice to Elinore Wood’s attorney. Elinore Wood has not since July 12, 1934, surrendered herself in open court nor to the sheriff of Cook county, and the sheriff has not as yet taken her into custody and is unable to locate her. It appears that on June 25, 1934, four days before the appeal was dismissed in the Appellate Court, Annie Tawney as surety on the bond surrendered the body of Elinore Wood to the sheriff of Cook county, who accepted the surrender and took her into custody. On the same day, June 25th, while in his custody she filed her petition for writ of habeas corpus before Hon. Stanley Klarkowski, one of the judges of the circuit court who after a hearing thereon, on June 28,1934, entered an order discharging her. The amount of the judgment and costs against Elinore Wood and in favor of Charles L. Seaman is $1,650.

In Whipple v. People, 40 Ill. App. 301, Judge Gary said that a bond given in such case as this was to all intents a bail bond, and citing Blackstone, also declared, “Bail have their principal always upon a string, and may pull the string whenever they please, and render him in their own discharge,” and “When a party is bailed, the bail have a right, to go into the house of the principal, as much as he has himself; they have a right to be constantly with him, and to enter when they please, to take him.” In People v. Hathaway, 206 Ill. 42, which was also a case under the Insolvent Debtors’ Act, the Supreme Court of this State said:

“The obligation of the bail in this class of cases is to produce the principal before the court upon demand, and at any and all times surrender him up in accordance with its mandates. But this obligation is one of which the bail may be relieved at any time by a voluntary surrender of the principal. In contemplation of law -the principal is in the custody of his bail, who may take him where he pleases, and detain him or surrender him in court into the custody of the sheriff who has process against him, or, if the bail concludes his principal meditates flight, or for any reason desires no longer to be held responsible for the appearance of the principal, he may cause him to be imprisoned in the common gaol of the county and thus exonerate himself from his obligation. ’ ’

That the rights of bail to secure their discharge in this respect are the same in criminal as in civil cases is held in Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. Ed. 287. Again, in Keyes v. Bennett, 218 Ill. 625, our Supreme Court said :

“Upon the execution of the bail bond said Chewning became the prisoner of the bail, who had legal authority to keep the principal in his custody and terminate his liability at any time by surrendering his prisoner to the court or to the sheriff. . . . The right of custody and the power to seize and surrender his principal is an incident of the relation of bail and principal, and when the right of the bail to seize and surrender his principal has been taken away by the discharge of the principal from all liability to pay the debt which the bail bond was given to secure, the relation of bail and principal is at an end as is also the liability of the bail.”

In Crane v. Shaw, 13 Mass. 213, the Supreme Court of Massachusetts said:

“In contemplation of law the principal is always in the legal custody of the bail. They may at pleasure bring him within the precinct of the officer holding the execution and offer him to the officer to be taken.” To the same effect are People v. Paulsen, 146 Ill. App. 534; Florence v. Shumar, 34 N. J. L. 455, 460. We hold that by delivering Elinore Wood to the custody of the sheriff of Cook county, the bail in this case was exonerated, and that the judgment in favor of defendants was right. Moreover, neither bond was conditioned to pay the judgment plaintiff obtained in the superior court and for which he sought to recover in this case. Under no circumstances could he recover that amount.

The judgment is affirmed.

Affirmed.

O’Conhor, P. J., and McSubely, J., concur.


author: Mr. Presiding Justice Edwards

text:
    Theodore H. Schrader et al., Appellees, v. Emma Schrader et al., Appellants.

      Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    J. Fred Gilster, of Chester, for appellants.
    E. H. Wegener, of Chester, for appellees.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

In March, 1928, Julius Schrader, a resident of Randolph county, departed this life, leaving certain real estate in Shiloh Hill in said county. He left a last will, which gave a life estate in all his property to his widow, Sophia Schrader, and then, after certain bequests, the remainder in fee, in equal shares, to the heirs of his children E. J. Schrader, Otillie Brelge, Oscar H. Schrader and Theodore H. Schrader. The widow died on August 15, 1932, and one son, Oscar H. Schrader, also passed away after the death of his father, leaving him surviving his widow, Emma Schrader, and his two infant children, Bernice Schrader and Viola Schrader, as his only heirs at law.

In 1932 said Theodore H. Schrader, Otillie Brelge and Ed J. Schrader, appellees, instituted a suit to partition the real estate of Julius Schrader, deceased, making as parties defendant, Emma Schrader, widow of Oscar H. Schrader, deceased, both individually and as administratrix of his estate, and his said minor children.

The bill, in addition to the usual averments as to the real estate and to its partition, also set forth that Oscar H. Schrader had executed to his mother a note, upon which some $1,700 remained unpaid, which note the mother had indorsed and delivered to appellee, Theodore H. Schrader, who had filed the same against the estate of his deceased brother. No further allegations were made respecting the note, except that the parties to the suit had certain interests therein, and no specific relief was prayed in relation to it. Defendants answered the bill by general denial that the interests of the parties were correctly set forth therein. Appellees took leave to file ah amended bill, which they later did by redrafting the original bill, but omitting any reference to the Oscar H. Schrader note.

Between the time when leave had been granted to file such amended bill, and its actual filing, appellants filed their cross-bill setting up that Oscar H. Schrader had executed a chattel mortgage in favor of Theodore H. Schrader, who had foreclosed thereon, following the death of the former, and made sale of the goods secured thereby, but had wholly failed to make report in writing of such sale to any of the appellants, as required by the statute, and praying that Theodore H. Schrader be ordered to pay the administratrix of the Oscar H. Schrader estate the amount realized from such sale; that same be decreed to be a lien upon the chattels, and also upon the interest of said Theodore H. Schrader in the real estate in question, and that in default of payment thereof, that such property be sold and the proceeds brought into court to abide its orders.

A demurrer was filed to the cross-hill, which the court sustained. Appellants electing to stand by their cross-hill, appellees had a decree granting the relief sought in the amended bill of complaint, and this appeal is prosecuted therefrom.

Appellees’ contention is that the cross-bill raised a claim which was not germane to the cause of action set forth in the original and amended bills of complaint, while appellants assert that by averring in the original bill the facts concerning the note of Oscar H. Schrader, the way was thereby opened for them to file their counterclaim by way of cross-bill.

That the allegations concerning said note had no proper place in the original bill, will not be disputed. No specific aid was asked for in regard to it, nor could the court properly have decreed any, under the general prayer for relief, even though the defect was not challenged, for the all sufficient reason that two of the appellants were minors who could consent to nothing, and who were powerless to waive any defenses in their favor. It was the obligation of their guardian ad litem to fully protect their every interest, in the pursuit of which, duty required him to urge every defense in their behalf. Stunz v. Stunz, 131 Ill. 210; Cartwright v. Wise, 14 Ill. 417. If the guardian ad litem proved remiss in this respect, it would have been incumbent upon the court, of its own motion, to intervene and protect the rights of the infant defendants. Mason v. Truitt, 257 Ill. 18; Stark v. Brown, 101 Ill. 395. There could have been no legal award in favor of appellees, respecting the matter of the note of Oscar H. Schrader, against the infant appellants, and, at least as to them, the averments concerning it were immaterial and called for no answer. Whitehouse Eq. Pr., sec. 266; Costello v. Tasker, 227 Mass. 520,116 N. E. 573.

In Patterson v. Northern Trust Co., 231 Ill. 22, the rule was stated to be: “Matters in the cross-bill must be germane to the matter involved in the original bill. The new facts which it is proper for the defendant to introduce thereby are such, and such only, as are necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which complainant rests his right to aid or relief.”

• The charge of the cross-bill is that of a legal demand, given by the statute under par. 28, Cahill’s Rev. St. ch. 95, as a penalty for failure to comply with the statute in the foreclosure of a chattel mortgage — a subject which is wholly unrelated to the partition of the real estate sought in the original and amended bills, and not called for by anything in the original bill respecting the division of the real estate. It was a cause of action properly cognizable in a court of law, where there existed a complete remedy for the wrong. A jury trial was the right of either party, to determine the questions of fact involved. In such situation, unless there be alleged some special ground of equity jurisdiction, the parties will be relegated to their remedy at law, and equity will not interfere. Fuller v. Davis’ Sons, 184 Ill. 505, 513.

A cross-bill is akin to the original bill when, and only when, the cross complainants cannot otherwise obtain the aid which they thereby seek, and where the cross complaint will, if it be sustained, preclude the relief which the complainant seeks by his bill. Hutson v. Wood, 263 Ill. 376.

Tested by the rule last cited, the cross-bill of the instant case is not germane to the original complaint. The cross complainants have a full and adequate remedy at law; moreover, even if their cross-bill were sustained, it would in nowise prevent the court from adjudicating upon the partition of the real estate in question.

We think the demurrer to the cross-bill was properly sustained, and the decree should be affirmed.

Decree affirmed.


text:
    Will Orange, Appellee, v. Norman B. Pitcairn et al., Appellants.

      Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Kramer, Campbell, Costello & Wiechert, of Bast St. Louis, for appellants; N. S. Brown and Homer Hall, both, of St. Louis, of counsel.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Will Orange brought suit in the city court of East St. Louis against Norman B. Pitcairn and Frank C. Nicodemus Jr., receivers for the Wabash Railway Company, to recover for injuries sustained on the right of way of said railway. There was a jury trial and a verdict for defendants, which the court set aside and awarded a new trial; from which order the defendants below have, after leave granted by this court, perfected an appeal.

The declaration charged that plaintiff below was employed by defendants as a section hand upon their right of way; that they were at the time engaged in interstate commerce; that while riding to work upon a certain car pulled by a gasoline motor car, on the main .track of defendants, owned and operated by them, where plaintiff and other section hands were engaged in raising the said track, reballasting and putting new ties under the rails, the coupling between the motor car and the car upon which plaintiff was riding-broke, due to the fault or negligence of the defendants, and that as a result plaintiff was thrown from the car upon which he was riding, and severely injured.

To the declaration was pleaded the general issue, and also two special pleas, the first of which averred that at the time of the accident plaintiff was not in the employ of defendants, and the second plea alleged that at such time they were not the owners of, nor operating, the car in question. Plaintiff replied to the pleas, asserting, as to the first, that he was in the service of defendants when injured, and that as regards the second, defendants were the owners and operators of such car at such time. The injury occurred on July 21, 1932, and plaintiff had been employed on the work for about three weeks prior to the accident.

It does not appear to be seriously disputed that at the time of such occurrence the Wabash Railway Company was engaged in interstate commerce, and under the ruling- of Kusturin v. Chicago & A. R. Co., 287 Ill. 306, work of repairing an interstate railroad is a part of interstate commerce; hence the action was properly brought under the Federal Employers’ Liability Act.

The proof shows that on March 25, 1932, defendants entered into a contract with the Industrial Construction Company to do all work, and furnish all equipment, in connection with relaying- rails, applying- ballast and surfacing tracks at such point or points on the Wabash Railway Company’s right of way as defendants should designate, and to be paid therefor at a specified rate. The contract further provided that defendants should have a general supervision over the work, to see that the contract was performed according to its terms; that the contractor should take out, at its own expense, all necessary indemnity insurance, required by any legal regulations, and expressly provided that it (the contractor) assumed all liability for injury to its property, its employees or to third persons.

At the trial the court admitted, over the objection of the plaintiff, three checks from the construction company to the plaintiff, for payment of his services during such employment; also seven receipts signed by plaintiff, on forms of the industrial commission of Illinois, showing that he received from said Industrial Construction Company compensation due for the periods of time covered by the receipts, “for accidental injuries sustained by the said Will Orange on July 21, 1932, while in the employ of the Industrial Construction Company.” The court likewise admitted, against plaintiff’s objection, the contract previously referred to. He asserts that the admission of such exhibits, and each of them, was error, which justified the setting aside of the verdict and the award of a new trial.

Having brought the action under the Federal Employers’ Liability Act, and having averred that plaintiff, at the time of sustaining the injury, was employed by and in the service of defendants, the former assumed the burden of proving the existence of the relation of master and servant, as an integral and.material element of his case. Standard Oil Co. of Indiana v. Allen, 189 Ind. 398, 126 N. E. 674; 39 Corpus Juris, p. 989, sec. 1208.

Where the issue raised by the defendants is that 'they did not employ the plaintiff, it is proper to admit proof of payments by others for the services rendered, to show that such parties, and not the defendants, were considered, by him, as his employers. 39 Corpus Juris, p. 53, sec. 29. The acceptance of pay checks of the Industrial Construction Company, by the plaintiff, for services rendered before the accident, and his execution of receipts for sums of money after such event, which recite that they are compensation for accidental injuries sustained while in the employ of such construction company, are circumstances which tend to show that the Industrial Construction Company was his employer; as it is common knowledge, and general practice, that the wages of a laborer are paid by his employer, likewise his compensation for accidental injuries received in such service. The checks and receipts, in our opinion, were properly admitted in evidence.

As to the contract, when offered, the plaintiff objected generally that it was incompetent and immaterial, and specifically that it contained no mention about work at Reddick, where the accident occurred, or pertaining to the work that plaintiff was doing.

By reference to the contract it is seen that it provides for work ‘ ‘ at such point or points on the line of the railroad of the Company as may hereafter from time to time be designated by the chief engineer of the Company. ’ ’ The proof is that the work in which plaintiff was engaged, at the time of injury, had been so designated, hence the specific objection was untenable. The contract was a circumstance tending to show by whom the work was to be done, and who was to pay the laborers therefor, and when taken in conjunction with the checks a!nd receipts indorsed or signed by plaintiff, bore with convincing force upon the question as to whose servant he was at such time. It was both competent and material, and not obnoxious to the general objection.

Plaintiff contends that the 'contract, by its terms, shows that defendants were in direct and immediate control of every act to be performed, and every employee, through its chief engineer. We do not so understand it. The agreement reserves to defendants the right of supervision, and confers upon them certain powers calculated to, and the purpose of which was to insure the performance of the work punctually and in accordance with the terms of the contract. These appear to have been prudent precautions, necessary in view of the purpose and scope of the agreement, and while it was, in a sense, a control, it was not a detailed control of the actions of the contractor or its employees. It was a judgment over the results alone.

The defendants did not retain the right to direct the method of work, or the manner in which it should be done, but only the authority to supervise, to the extent of assuring its performance in accord with the covenants of the contract; and where such is the case, the relation thus created is that of independent contractor, and not master and servant. Foster v. City of Chicago, 197 Ill. 264, 267; Casement & Co. v. Brown, 148 U. S. 615.

It is further asserted that the contract is ineffectual as a defense for the reason that the work which it covers involves the exercise of a power conferred by its charter upon the Wabash Railway Company, and that being such, it cannot be delegated to an independent contractor and thereby relieve the railroad from liability.

The general rule governing such situations is stated in Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332, 336, as follows: “A railway corporation will be held liable for the wrongful act of a contractor while exercising, with the assent of the corporation, some chartered power or privilege of the corporation which he could not have exercised independently of its charter, but it will not be liable for 'the wrongful act of an independent contractor not exercising any special power derived from the charter. ’ ’

In the case just referred to, a track laborer working within a railway right of way, in the preparation of a roadbed for a railroad track, was killed by the falling of overhanging clay, while shoveling gravel into a car. The court, on page 337, observed: “The question in this case is whether the construction of a railway by a contractor upon the right of way and property of the railway corporation is the exercise of chartered powers or privileges by the contractor, and it is answered in the negative by the decision in the case of West v. St. Louis, Vandalia and Terre Haute Railroad CVo., 63 Ill. 545. In that case the railway company contracted with a firm of contractors to construct its railroad and appurtenances. A servant of the contractors was injured by the use of a poisonous mixture upon the timbers of a freight house. It was decided that the railway company, in letting the contract, did not commit the execution of any of its franchises to the contractors, and that the contractors, in hiring the plaintiff, were only exercising their private and natural right, and not any special power derived from the charter of the corporation.”

In other jurisdictions a similar conclusion has been reached. The case of Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161, 13 S. E. 277, at page 279, enunciates the rule: ‘ ‘ The authorities all hold that a railroad company has the right to contract with others for the construction of its road, and it is held that a contract of this character is not such a delegation of its chartered rights as to render the company liable for unauthorized wrongs committed by the contractor or his servants while engaged in the work.”

In Cunningham v. International R. Co., 51 Tex. 503, 513, the rule is stated to be: “The principle that a railroad company cannot delegate to an employee its chartered rights and privileges, so as to exempt it from liability, does not extend to the use of the ordinary ways and means for the construction of the road, but to the use of such extraordinary powers only as the Company itself could not exercise without having first complied with the conditions of the legislative grant of authority. Thus, after having first procured the right of way, the Company can delegate to another lawful authority to enter upon the same and make its roadbed and perform other proper acts of construction, but it cannot delegate lawful authority without having first secured the right of way by donation, purchase or the exercise of the right of eminent domain.”

The well considered case of Hughes, v. Cincinnati & S. Ry. Co., 39 Ohio St. 461, 477, declares: “The question in this case, however, is this: If a railroad company, by the exercise of its power of eminent domain, acquires all the land necessary to the construction of its road, and sends its contractors to construct its road thereon, is it necessarily liable for a trespass committed by them while engaged upon the work! We think not. The work of constructing a railroad is not corporate work unless it is done by a corporation through its agents and servants, and a person may contract with a railroad company to construct its road, without becoming its agent or servant.”

The rule appears to be well settled that a contract for the construction, or for the reconstruction, of a railroad within the right of way previously acquired, is not a delegation of a chartered power or privilege, and that a railroad company may enter into such contract without constituting the contractor its servant.

In the instant case the work in question, which was really a reconstruction of a section of railroad track, was being done on the land of the Wabash Eailway Company, and was of such a nature that it might be done by any property owner on his own premises. It required no powers of charter, either to enter upon the right of way, or to perform the work then being done ; hence it was the subject of delegation, and the contract constituted the Industrial Construction Company an independent contractor, and not the agent or servant of the defendants.

Lastly, it is claimed that the contract is a shift or device to evade the liabilities imposed by the Federal Employers’ Liability Act, and as such is without force, under section 5 of the act, which section provides that “any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void.”

The Supreme Court of the United States, in the case of Chicago, R. I. & P. Ry. Co. v. Bond, 240 U. S. 449 (Vol. 36 Sup. Ct. 403), ruled that such section 5 is not violated by a contract of an interstate railway company under which certain work on its right of way, such as handling coal at the company’s chutes, loading wood, cinders and sand from cars to storage and vice versa, is to be performed by an independent contractor, who expressly assumes all liability for injury to himself or his property, or his employees or third persons.

The decision in Erie R. Co. v. Margue, 23 F. (2d) 664, is cited to the contrary. In that case, however, the facts were different from those in the pending cause. There the railway company was furnishing all materials and equipment for track maintenance; required the contractor to take out insurance to comply with Ohio State Compensation Laws, and the railway company was to pay the premiums and also pay the contractor any sums adjudged against it for the death of or injuries to its employees. The court held, logically, that the purpose of the contract was to substitute the liabilities of the Ohio State Compensation Act for those created by the Federal Employers’ Liability Act, and as such was void by the terms of said section 5.

A careful reading of the contract in the present case convinces us that there was no purpose or intent to circumvent the provisions of the Federal Employers’ Liability Act, but that it was entered into as an ordinary business transaction and without design to evade any responsibilities, or escape any liabilities, imposed by any competent lawful authority. Hence we are of opinion that the Margue case, supra, is not controlling here; but that the decision of the United States Supreme Court, in Chicago, R. I. & P. Ry. Co. v. Bond, supra, is authority for our holding* that the contract in question is not void under said section 5. Our conclusion is that the cause was fairly submitted to the jury; that the verdict was warranted by the law and the evidence, and that the court erred in setting it aside.

The order awarding the new trial is reversed, and the cause is remanded with directions to the trial court to enter judgment on the verdict.

Beversed and remanded with directions.


text:
    Columbus C. Van Horne, Appellee, v. Herbert L. Harford and George E. Wilkinson, Defendants. George E. Wilkinson, Appellant.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.

      Wm. P. Boynton, of Alton, for appellant.
    O’Neill & O’Neill, of Alton, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee, on December 18, 1913, was awarded a judgment in the city court of Alton, against Herbert L. Harford, now deceased, and appellant George E. Wilkinson, in the sum of $980.40 damages and costs. On July 19, 1915, a transcript of this judgment was filed in the office of the clerk of the circuit court of Madison county. Desiring to revive the judgment, appellee, on May 11, 1931, filed a praecipe for scire facias in the office of the clerk of said court, and the writ was thereupon issued. The death of Herbert L. Harford, one of the judgment debtors, being suggested of record, his heirs were, upon motion, made parties defendant to the proceeding. Thereafter, and following a rather lengthy course of litigation, judgment was entered reviving the original judgment in said sum of $980.40, against appellant alone, who moved in arrest of judgment and for a rehearing, and same being overruled, has prosecuted this appeal.

The reason assigned why the trial court erred in thus reviving the judgment and overruling the motions last mentioned, is that the original judgment, having-been rendered in the city court of Alton, could only be revived in such court, and that the circuit court of Madison county, in which a transcript of such judgment had been filed, was without jurisdiction to revive the judgment.

In par. 379, Cahill’s St. ch. 37, as the act was in force in 1913 and 1915, relating to judgments and decrees of a city court, it is provided that “such judgments and decrees shall be a lien upon the real estate in such city from the time of their rendition; and in the county wherein such city court is situate, after a certified transcript of the same shall have been filed in the office of the clerk of the circuit court of the said county.”

The quoted act makes no attempt to do other than constitute the judgment, as transcribed, a lien upon realty within the county, and provides for enforcing the judgment by execution. It is thus seen that by filing the transcript in another jurisdiction, its purpose and function is the enforcement of the original judgment, respecting which the statute makes provision for a lien, and for execution to effectuate its collection, but does not confer any power or authority for its revivor.

We have been cited to no decision in this State, nor have we been able to find 'any, which decides the precise question here involved. In Challenor v. Niles, 78 Ill. 78, where the proposition was somewhat indirectly involved, the court said: “We are aware of no practice that would authorize a writ of scire facias to issue to revive a judgment from a county other than that in which the judgment was rendered, and if the writ could not be sent for service to another county, in many cases the object of the writ would be defeated.” However, the question has arisen in other jurisdictions, and the current of authority is that the court in which the judgment was rendered is the only one in which a proceeding for its revival can be conducted.

The court held, in Conner v. Neff, 2 Ind. App. 364, 27 N. E. 645: “While the proceeding is, for some purposes, regarded as an action, it is not considered as a new suit, but the continuation of an old one. Freeman on Judgments, secs. 442-444. The application must be made in the court where the judgment was rendered, regardless of the place of residence of the judgment defendants.”

In McRoberts v. Lyon, 79 Mich. 25, 44 N. W. 160, 163, it was ruled that “the writ is not an original, but a judicial, one, and when brought to revive a judgment, can only issue out of the court where the judgment was given, or, if the judgment has been removed, out of the court to which it has been removed.”

The suit of J. I. Case Threshing Mach. Co. v. Edmisten, 85 Neb. 272, 122 N. W. 891, was one where a judgment, obtained in the district court of Nemaha county, was transcribed to the same court of Custer county, where it was subsequently revived. An attack being made upon the authority of the district court of the latter county to enter judgment of revivor, the Supreme Court declared the law to be that a district court in which the transcript of a judgment, rendered by the district court of another county, is filed, is without authority to revive the judgment, and that the court of original jurisdiction is the only one possessing such power.

Barron v. Pagles, 6 Ala. 422, holds that a proceeding to revive a judgment rendered by a nisi prius court, and affirmed on error in the Supreme Court, must be brought in the lower court, and not in the higher.

34 Corpus Juris, p. 664, sec. 1021, states the rule that a proceeding to revive a judgment must be instituted in the court wherein it was rendered, even though the statute permits a transcript of the judgment to be filed in a different court, unless the statute authorizing the transfer confers the power of revivor upon the court to which the transfer is made.

The statute which granted the right to transcript the judgment from the city court of Alton to the circuit court of Madison county, did not grant authority to the latter court to revive the judgment; for which reason we are of the opinion that, within the rule of the authorities cited, such circuit court had no power to revive a judgment of the former court, which had been transcribed to the latter.

The praecipe in the instant case requested of the clerk of the circuit court the issuance of a scire facias to revive a judgment of the city court, later filed by transcript in the circuit court, and the writ, issued pursuant thereto, which serves the office of both process and pleading (Peacock v. People, 83 Ill. 331), set forth the same facts.

Upon the record as thus made, the court was without authority to enter the judgment of revivor, and the same will be reversed.

Judgment reversed.


author: Mr. Justice Stone

text:
    Margery Stricklin and Dennis Stricklin, Appellants, v. Eldorado Building and Loan Association and James E. Raiburn, Appellees.

      Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    D. F. Moore, of Benton, and S. D. Wise, of Harrisburg, for appellants.

      Charles H. Thompson, of Harrisburg, and Harry Anderson, of McLeansboro, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

Appellants, Margery Stricklin and Dennis Stricklin, were plaintiffs in a bill to redeem a mortgage and cross defendants in a suit to foreclose the mortgage. Appellees, Eldorado Building and Loan Association and James E. Eaiburn, were plaintiffs in the bill to foreclose and defendants in the bill to redeem. The court below entered a decree declaring the sum of $3,442.86 due the association and granting* the foreclosure of the mortgage. The items of account in dispute are many, and the findings in the decree are not specific with respect to all items composing* the account and the court has not allowed the sum claimed by the association. It is therefore impossible to tell what items make up the decree. However, the amount of the decree could not be made up without certain of the larger items involved. As this court is of the opinion that the decree must be reversed, and a new accounting-taken, and as it does not appear in every case whether an item in evidence has been allowed or disallowed, it will be necessary to state with respect to the items in evidence, about which a question has been raised, whether they may be properly included in a decree.

Appellants became members of the association on June 11, 1924, at which time they agreed to purchase 50 shares of stock of a par value of $100 each, and at which time they borrowed the sum of $5,000 from the association, giving* a mortgage on their home to secure the loan, and giving their note by which they agreed to pay the association as follows: “$25 monthly dues upon said shares of stock aforesaid, the sum of $25 monthly premiums and also the sum of $25 interest monthly, upon said loan, all on or before the first Monday of each and every month thereafter, until said loan and interest shall have been liquidated under the charter and by-laws of said Association by the shares of stock aforementioned having reached its par value.”

At the time the loan was made the by-laws then in force among other things provided:

“The money in the treasury shall be loaned at a premium of six per cent, which premium shall be paid in equal installments, and in addition to the premium such loan shall bear interest at the rate of six per cent per annum, which premium and interest shall be due and payable in advance on the first Monday of each month at the same time the dues on such stock are due and payable, and which payment of premiums and interest shall be made during the existence of the shares of stock borrowed upon or until such loan is repaid. ’ ’

The most serious objection to the decree relates to the allowance of the premium charged on the loan. Appellants contend that the loan, which provides for a premium of $25 per month until the stock reaches par value, is not in accordance with the by-law quoted which, they contend, provides for a premium of six per cent of the loan, or $300 to be paid in instalments. We think this position is correct.

Building and loan associations are exempted from the usury laws, and are permitted to charge premiums to borrowers for the privilege of obtaining loans, so long as such premiums conform to the statute and the by-laws of the association. However, since such associations are made a special class, and exempted from the salutary usury laws it is essential that they be held to strict compliance with the statute and their by-laws. The by-laws must clearly justify the premiums charged. A premium not fixed by the by-laws under the former rule, or board of directors (after bids have been abolished by by-laws) under the present rule, is not fixed in accordance with the statute. The exemption from usury laws given these associations follows only from strict observance of the statute. Anna Loan & Improvement Co. v. Dorris, 342 Ill. 567, 572.

Here the premium provided in the by-law is “six per cent.” It is not stated that the premium shall be at the “rate” of six per cent, nor that it shall be six per cent per annum. Six per cent does not mean six per cent per annum. Certain corporations are permitted by our statutes to lend money at the rate of three and one-half per cent per month, but it would hardly be contended that “interest at the rate of three and one-half per cent” in a note .payable to such a corporation meant “three and one-half per cent per month.” The premium provided in this by-law is to be paid in “equal instalments.” The natural meaning of instalment is a portion of a whole, a part of a definite sum. Perhaps a stronger indication of the meaning of the language used in connection with the premium fixed by this by-law can be obtained from the contrast between it and the language used in the same by-law to describe the interest charged. The by-law provides: “Such loan shall bear interest at the rate of six per cent per annum.” The difference between the premium described and the interest described is clear. Appellees stress the fact that under the by-law premiums were to be paid during the existence of the shares of stock. It would seem to be a satisfactory explanation that the by-law contemplated repayment in accordance with its terms thus making the number of instalments definite and the premium definite. In any event, if there is an ambiguity in the by-law it should be resolved against the association where it seeks to impose an exorbitant rate of interest.

Since there was a contract for the illegal premium and since there was no agreement to pay a premium in accordance with the by-laws, all charges for premium must be expunged from the account. The interest charge, however, will be allowed to stand except as to interest for 11 days hereinafter referred to. Where parts of a contract are severable and legal interest is separately provided for, a court of equity will not follow the rale at law of forfeiture of all interest for usury, but will permit that part of the contract providing a legal rate of interest to stand. Lurton v. Jacksonville Loan & Bldg. Ass’n, 187 Ill. 141.

Appellants contend that they were charged interest for 11 days in June, 1924, before the loan was actually made, and for one month after the association had, by resolution of the board of directors, elected to terminate the loap and forfeit the stock. They also charge that fines were imposed for two months following the forfeiture of the stock. We think the contention correct with respect to the interest charged prior to the making of the loan. Appellants are likewise correct in their position with respect to fines charged subsequent to the forfeiture of the stock. Armstrong v. Douglas Park Bldg. Ass’n, 176 Ill. 298, 301; Juergens v. Cobe, 99 Ill. App. 156, 160. On the other hand there seems to be no valid reason why interest on the unpaid loan may not be charged after the stock is forfeited. The obligation to pay interest on the money borrowed is not dependent on membership in the association. In this respect it differs from the obligation to pay fines which is dependent on such membership.

Appellants further contend that the provision in the by-law requiring interest at the “rate of six per cent per annum” means six per cent per annum on the unpaid balance, and therefore the interest charge of $25 per month is not in accordance with the by-law. Even supposing this construction of the by-law is the normal one it does not follow that the charge of $25 per month is incorrect. Appellants make the false assumption that the $25 which is paid each month for “dues” goes to reduce the principal of the loan. The “dues” are partial payments on stock, and entitle the member to earnings on stock. If the dues were applied to the principal of the loan there would be nothing to apply in payment of the stock. The balance of the loan remains the same until the stock reaches its par value, at which time the stock is canceled and applied in payment of the loan.

Appellants make a similar contention with respect to dues charged on the stock. They say that to charge them with the full principal of the loan and with $25 per month arrears in dues is to duplicate charges of principal. Here again it is necessary to make a distinction between the loan and the contract to purchase the stock. The dues go hand in hand with membership in the association. They increase the value of the stock. Should appellants be entitled to credit for full value of their stock which value, is made up of dues of members and other earnings of the association, and at the same time be permitted to apply their dues toward payment of the principal of the loan? We think this would be unfair to other members. The chancellor was correct in not permitting payments of dues to be credited to the principal of the loan. It follows also that no dues can be charged after forfeiture of the stock.

It is next argued that the association should not be entitled to penalties paid in the redemption of taxes for the reason that the by-laws of the association require it to pay the taxes when due and unpaid, and charge interest thereon. We do not think that this by-law amounts to a contract with the borrower that the association will prevent tax defaults. The association is entitled to interest on whatever amounts were necessary to redeem the tax defaults, unless it shall appear upon the new accounting that at- the time the taxes were paid the association had on hand money of the borrower in the form of overpayments. It is also contended that there is no evidence to support a certain tax item of $186.04 alleged to have been paid September 29, 1933. This item does appear in that part of Exhibit I designated the loan account. There is testimony that that account is correct. This would seem to be sufficient to support the finding in the absence of any evidence to the contrary.

Appellants charge that the audit showing the value, of the stock was improperly admitted because it was not made in accordance with the by-laws in that it is not based upon any proper accounts and in that it is certified by a committee who are directors of the corporation. This method of making the audit is technically incorrect. However, a reliable public accountant was hired and it does not appear that appellants suffered from the book value given the stock. We find no error in the action of the chancellor in relying on this estimate of book value.

The decree will have to be reversed for the errors mentioned and an account taken in accordance with the principles herein set forth.

Reversed and remanded.