author: Mr. Justice Davis

text:
    Harold Crane et al. Appellees, v. Railway Express Agency, Inc. et al., Appellants.
    Gen. No. 9,072.

      Opinion filed January 17, 1938.
    Remittiturs filed January 20, 1938.
    Hill & Bullington, of Hillsboro, for appellants; K. L. Richmond and A. M. Hartung, of counsel.
    Dryer, Brown & Poos, of Hillsboro, for appellees; Bartlette E. Nutter, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

A complaint was filed by Harold Crane, William Lauscher, Merivel Tucker, Charles E. Baker, Ralph Flynn and Emil Santiago, plaintiffs appellees, against the Railway Express Agency, Incorporated, and Charles M. Thomson, trustee of the estate of Chicago and Eastern Illinois Railway Company, defendants appellants, for the recovery of damages for personal injuries, each plaintiff alleged he had received through the negligence of defendants.

The complaint alleges that the cause of action of each of the plaintiffs arose out of the same transaction and as a result of the same negligent acts of the defendants; that both defendants were engaged as common carriers in interstate commerce, the express agency in the carriage and transportation of express and the railway company in the conveyance and transportation of freight and express; that on September 20, 1935, said railway company was carrying on its passenger train No. 21 a railway express car under a contract between the express agency and Charles M. Thomson, trustee.

That on said date plaintiffs were employed by Motor City Stables in managing, caring for and riding certain race horses owned by said Motor City Stables; that on September 19, 1935, said Motor City Stables applied to defendant express agency, at its Detroit, Michigan, office for the carriage of 15 race horses and traps, including the carriage and transportation of plaintiffs, as servants and attendants to said animals, from Detroit, Michigan, to Dallas, Texas; that said express agency entered into a contract, plaintiffs ’ exhibit A, made a part of the complaint, and thereby agreed with Motor City Stables and plaintiffs to carry said race horses and traps and plaintiffs from Detroit to Dallas upon the payment of $600, which was paid by Motor City Stables to said Railway Express Agency.

In addition to the foregoing allegations of the complaint it contained six counts, in count one of which the plaintiff, Harold Crane, alleges that on September 20, 1935, while he was being transported as a passenger for hire in the express car of the defendant, Railway Express Agency, over the lines of Chicago and Eastern Illinois Railway Company near the village of Schram City, Montgomery county, Illinois, the train which included the express car of the defendant, Railway Express Agency, was so negligently, and carelessly operated and managed by the defendants and their servants, in the control thereof, that the same left the tracks and overturned, and as a result-thereof, through no negligence of his own, he was injured and damaged in the sum of $10,000.

Then follows five additional counts; in which the remaining plaintiffs, in separate counts, make the same allegations as is contained in count one with the exception of the allegation as to injuries and damages sustained.

Exhibit A, attached to and made a part of the complaint, was a uniform live stock contract, for transportation of animals other than ordinary live stock. It was entered into between Railway Express Agency and Motor City Stables and provides for the transportation and shipment of 15 race horses and traps from Detroit, Michigan, to Dallas, Texas. Sec. 7 thereof provides that when animals are accompanied by the owner, or attendant in his employ, the shipper shall load and unload said animals at his own risk, and take care of and feed and water the animals while being transported and the company shall not be under any liability or duty with reference thereto, except in the actual forwarding thereof. Attendants when transported free will be permitted to ride only in the car in which the animals are transported or in smoking cars.

Sec. 8 provides that the shipper, in consideration of the free carriage of a person or persons, as his agent, in charge of said animals, agrees to indemnify and save harmless the company from all claims by reason of personal injuries sustained by said person or persons so in charge of said animals, whether caused by negligence or not.

“Attendants’ Contract,” attached fo exhibit A, provides that, whereas it is necessary that the owner or some person on his behalf shall accompany and take charge of said animals, and in consideration of the free transportation of the attendants, upon the same train upon which the animals are transported, said transportation being performed at the instance and request of the attendants, and it being made known to each of the undersigned that each express company does, by contract, agree, to hold each of the railroad companies, over which the undersigned is being transported, harmless against any injury, or damage to the undersigned while being transported, as therein set forth, each of the undersigned agrees that each of the carriers or railroad companies, mentioned in the foregoing contract as to the transportation of the undersigned attendants, is to perform a service not required of a carrier of passengers and not required of a common carrier, and as to such transportation each of said carriers, express companies and railroad companies, is and shall be liable only as a private carrier, and each of the undersigned attendants does severally agree to assume all risk of accident or damage to himself, and does hereby release and discharge said Railway Express Agency and any connecting express company and any railroad company which may at any time be engaged in transporting or forwarding said animals and said attendants, from all claims, liabilities and demands of every kind, on account of any injury or damage.

Defendants answered the complaint, admitting that Motor City Stables applied to the Railway Express Agency for carriage of 15 horses and traps from Detroit, Michigan, to Dallas, Texas. Alleged they agreed to convey said horses and traps for the consideration authorized to be charged and in the manner set forth in the contract, “Plaintiffs’ Exhibit A,” attached to the complaint. Deny that for any consideration they agreed to carry plaintiffs but that they were permitted to accompany the shipment in accordance with the “Attendants’ Contract,” signed and set forth in “Plaintiffs’ Exhibit A,” and not as a passenger nor for any consideration paid by them, and agreed only to permit said parties to attend the horses so shipped without liability on the part of either defendant, deny the allegations of negligence charged in each count, and deny that plaintiffs are entitled to any judgment for damages or injuries received by them.

Defendants as special matters of defense allege that the plaintiffs, at the time of entering into the contract for the shipment of the horses and traps mentioned in “Plaintiffs’ Exhibit A,” signed a contract with defendant, Railway Express Agency (“Attendants’ Contract” quoted verbatim), and if either of the plaintiffs sustained any injury of any kind, they are, by reason of said contract, barred from recovery.

Defendants also allege in their answer that the plaintiffs entered into a contract, “Plaintiffs’ Exhibit A,” prior to entering into said car or upon the train operated by Charles M. Thomson, trustee, in and by which contract each of said plaintiffs specified and agreed to hold the Railway Express Agency and any railroad, over which said car was to be transported, harmless against any injury or damage to said plaintiffs, and alleging the same special matters of defense, as claimed by reason of the execution of “Attendants’ Contract. ’ ’

Defendants further allege that, while conveying said horses in the express car upon the tracks of said railroad in Montgomery county, Illinois, the train was being operated with due care and caution, and as it was approaching a public road crossing, one Ada Dammann so negligently operated and drove her automobile that it came immediately in contact with the front end of the engine and caused the train to be derailed, including the car in which the horses were carried and plaintiffs were riding, and that any injury caused to plaintiffs, or either of them, was because of the negligence of Ada Dammann and not because of the negligence of the defendants.

Plaintiffs moved the court to strike the two sections of the answer, setting forth special matters of defense, and alleging that if any damage or injury occurred to the plaintiffs, or either of them, the same is barred by the terms and conditions of the “Attendants’ Contract.” The court granted the motion and those portions of the answer were ordered stricken.

In reply to the answer of defendants, plaintiffs denied that the defendants were in the exercise of due care and caution for the safety of plaintiffs, as alleged in paragraph two of defendants’ special defense; that the automobile driven by Ada Dammann, which came in contact with the locomotive of the defendant, did not derail the engine, tender or car in which plaintiffs were riding; that the striking of the automobile by the engine was not the proximate cause of the turning over of the engine and car, but that they turned over through the carelessness and negligence of those in charge of the operation of the engine and train both before and after the engine crossed said public highway.

The jury returned separate verdicts as to each plaintiff, finding defendants guilty and assessing the damages due each. Motions for a new trial and in arrest of judgment were overruled by the court, and separate judgments were entered as to each defendant.

From the evidence it appears that the crossing at which the car of Mrs. Dammann came in contact with the engine of the train on which the car of the express agency was being hauled was what was known as the Codemo or the Smith road crossing, which was at the edge of the village of Schram City, and about a mile north of Hillsboro. The evidence discloses that some 50 or 60 feet south of this crossing there appeared marks on the ties, which were said to have been caused by the wheels of the pony trucks of the engine that had left the rails. From 500 to 600 feet south of the crossing a switch leads off from the southbound main. The train ran on down the track to the switch, and the pony trucks are supposed to have followed the derail and turned the engine over, causing the wreck. Mrs. Dammann, the driver of the car, the engineer and fireman and traveling engineer, who were riding on the engine, were killed. The evidence in the record as to the speed of the train varied from 60 to 75 miles per hour. When the engine came to a standstill the engineer was sitting in the cab with his hands on the bar, the brake valves in emergency position, the sander valves open and the reverse lever was in neutral position. The evidence is also to the effect that the roadbed and track were smooth and straight and were in good repair.

The position of the plaintiffs is that the car in which they were riding was derailed by reason of the negligence of the defendants in the operation of the train, both before and after crossing the public highway, and that the act of Ada Dammann, in driving on said highway in front of the engine, was not the proximate cause of the derailing of the car in which they were riding. On the other hand, the defendants assert that the testimony shows that the engine was derailed wholly and proximately because of the fact that Ada Dammann negligently drove her car immediately in front of the engine.

The evidence tends to show that Smith road, which was much travelled, runs east and west and the railroad runs in a northeasterly and southwesterly direction and crosses the road at a sharp angle. The roadway is lower than the railroad track as you approach the tracks from the west. There is also evidence in the record as to the conditions of the right of way of the railway company in approaching it on the Smith road from a westerly direction, looking in a northeasterly direction towards Irving.

The evidence of the witnesses, on behalf of plaintiffs, tends to show that you could not see a train until you reached the first track; that there was an embankment about three feet high with tall weeds along the side and top, that were higher than a car; that brush and small trees and telephone and signal poles obscured one’s vision and prevented a driver of a car from seeing the approach of a train. The testimony on behalf of the defendants tends to refute this proof. Many witnesses testified on behalf of both parties to the suit on the question as to whether the defendant railroad company, failed to blow a whistle or ring a bell. The evidence is conflicting as to these questions.

Plaintiffs contending that it was by reason of the negligence of the defendant in failing to keep its right of way free of weeds and brush and in running its train at an excessive rate of speed and failing to give the statutory signals as it approached the Codemo crossing and to keep a proper lookout, that the car driven by Ada Dammann was struck by the defendant’s engine and that the negligent striking of said automobile, together with the negligence of the defendant in applying the brakes at the time of the accident, well knowing that the high rate of speed at which the train was traveling, such sudden application of the brakes would cause the locomotive and train to become derailed, and that such negligence of the defendant, both before and after striking the automobile, was the negligence which caused the injury to plaintiffs.

Defendants contend that, until the engine reached the crossing where the automobile was struck, it was running in its usual way on its regular schedule, at a speed not to exceed 60 miles per hour, upon a roadbed and track, the smoothest and straightest and best built and constructed of probably any road in the United States; that it is admitted that the railroad track, roadbed and highway crossing were each and all in good and proper repair; that from the testimony it appears that at no time were the weeds over 18 to 20 inches high, and that they did not reach within 20 feet of the rails and did not obscure a good and proper view of the approach of the train; that the driver of the automobile did actually see the train, and for that reason it was immaterial whether the train whistled or the bell rang; that the automobile driven by Ada Dam-mann, or some part of it, was struck by the engine and caused the pony trucks to get off of the tracks and derail the engine; that this was the proximate cause of the accident; that it was unquestionably proven that the proper signals, both as to blowing the whistle and sounding the bell, were given. The evidence refutes the proof that because of weeds, trees and brush the driver of the automobile could not see the approach of the train; that the engineer did all that could properly be done in attempting to stop the train after it struck the automobile.

We are unable to agree that the evidence, when considered as a whole, fails to support the verdict and judgment of the court. We are of opinion that the verdicts of the jury are not contrary to the manifest weight of the evidence.

It is further insisted that the court erred in striking from the answer of the defendants the special defense that the Railway Express Agency was not a common carrier of passengers and also that by contract the defendant’s liability for damages by reason of negligence was limited. That it is not alleged that the Railway Express Agency was a common carrier of passengers, and that it did not for any consideration agree to carry plaintiffs as passengers but that they were permitted by the terms of the contract, “Plaintiffs’ Exhibit A, ” to accompany the shipment of horses without liability on the part of either of the defendants. That each of the plaintiffs, prior to taking passage in the car of defendant, Railway Express Agency, entered into “Attendants’ Contract,” agreeing to assume all risk of accident or damages and relieving the defendants from all claims of every kind on account of damages sustained, whether by negligence or otherwise.

That since the express agency is not a common carrier of passengers it can enter into any contract it may see fit with such persons who accompany shipments of goods, horses or chattels and it is bound only by the general rules relating to contracts. That the strildng of pars, one and four from the answer deprived defendants of the defense therein pleaded.

While plaintiffs may not have alleged specifically that the Railway Express Agency was a common carrier of passengers, yet the complaint contains statements of facts equivalent to the specific allegation that the Railway Express Agency was a common carrier of passengers in the transporting of. plaintiffs.

Motor City Stables was in the race horse business and wished to have its horses, traps and attendants to such horses, transported from Detroit, Michigan, to Dallas, Texas, without delay and in order to get such transportation the shipper and its helpers and attendants were required to enter into the contracts, “Plaintiffs’ Exhibit A” and the “Attendants’ Contract,” by the terms of which the Railway Express Agency and all express companies and all railroad companies over which the express car might be transported were released from all liability on account of any damages that might be caused them by the negligence of any such companies.

Defendant, Railway Express Agency, in the carriage of express, accepts for transportation animals other than ordinary live stock, among which are reptiles, mice, rats, colts, and on up to zebras, camels, horses and elephants, and because it is-necessary that the owner, or some person on his behalf, shall accompany and take charge of certain of the animals, the owner or his agent is authorized to be transported on the same train on which the express car is carried, riding in the ¡express car or smoking car. In the transportation of such owner or his agent, the Railway Express Agency and railroad company hauling said express car, are common carriers of such person or persons so in charge of such live stock and so being transported.

The evidence discloses that plaintiffs were the agents and servants of Motor City Stables and helped load the express ear at Detroit and were checked in by the agent of the Railway Express Agency, and upon their arrival at Chicago the conductor in charge of the train again checked the attendants;

The uniform live stock contract provides that when the owner or attendant accompanies the animals he shall load and unload, take care of, and feed, and water them and the company shall not be under any liability or duty with reference thereto except in the actual forwarding thereof. By this provision the Railway Express Agency receives valuable services from the attendants. In addition it received the sum of $600 for transporting the race horses, traps and attendants from Detroit, Michigan, to Dallas, Texas.

A person, who is traveling with the consent of the railroad, in charge of stock or goods carried by the company for him, is a passenger for hire, even when he is traveling in charge of cattle on a drover’s pass. The consideration of his passage is the service he renders in taking care of the cattle or the charge made against him or his employer for shipping the cattle. New York C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809; Illinois Cent. R. Co. v. Beebe, 174 Ill. 13, 50 N. E. 1019.

In the case of Railroad Company v. Lockwood, 17 Wall. 357, Lockwood, a drover, was injured while traveling on a stock train of the New York Cent. R. Co. .from Buffalo to Albany. He had cattle in the train and had beén required at Buffalo to sign an agreement ,to attend to the loading, transporting and unloading of them, and received what is called a drover’s pass. The court in its opinion said: “It may be assumed, in limine, that the case was one of carriage for hire; for though the pass certifies that the plaintiff was entitled "to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle.” A person in charge of an interstate shipment of live stock, traveling on a freight train upon a pass issued pursuant to the terms of the contract of shipment, as permitted by the Act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1916, pa.r. 8563) par. 1, which excepts necessary caretakers of live stock from the prohibition against the issuing of any interstate free pass, must be regarded as a passenger for hire. Norfolk Southern R. Co. v. Chatman, 244 U. S. 276, 61 L. Ed. 1131.

The provision of sec. 1 of said Act, among other things, providing in substance, that no common carrier shall issue or give any interstate free pass, with certain exceptions, one of which is that it may issue such pass to necessary caretakers of live stock, poultry, milk and fruits.

The Supreme Court of the United States in this case saying, that live stock contracts providing for the transportation of caretakers on free passes were in use as early as 1859, and that they have continued in use up to this time is apparent from many reported cases, notwithstanding the fact, that such transportation has been declared by a long line of decisions not to be “free” in the popular sense, but to be transportation for hire, with all the legal incidents of paid transportation, the carriers of the country have continued to issue it and to designate it “free.” With this legal and commercial history before us we must conclude that the designation “free pass,” as applied to transportation issued or given by railroad companies to shippers and caretakers óf stock, had acquired a definite and well known meaning, sanctioned by'the decisions of this court and widely by the decisions of the courts of the various States, long prior to the enactment of June 29, 1906, and that, therefore, Congress must be presumed to have used the designation “free pass” in the sense given to it by this judicial 'determination when, in par. 1 of that act, by specific exception it permitted the continuance of the then long established custom of issuing free transportation or passes to shippers or caretakers of live stock. It results that the “settled rule of policy” established by the Lockwood case, and the decisions following it, must be considered, unmodified by the act to regulate commerce, and that the plaintiff in charge of his stock, traveling upon a pass permitted to be issued by that act, was a passenger for hire.

Plaintiffs were not carried free, but were passengers for hire, under the laws of Illinois and of the United States, both before and after the passage of the Hepburn Act.

In the case of Railroad Co. v. Lockwood, supra, it was said by the court: As the duties and responsibilities of public carriers were prescribed by public policy, it has been seriously doubted whether the courts did wisely in allowing that policy to be departed from, without legislative interference, by which needed modification could have been introduced into the law. A common carrier may, undoubtedly, become a private carrier or bailee for hire when as a matter of accommodation or specific engagement he undertakes to carry something which it is not his business to carry. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purposes of the carrying trade, and the carriage of the article is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character.

In this case it is admitted that the Railway Express Agency is a corporation organized under the laws of the State of Delaware and engaged as a common carrier in the carriage and transportation of express in interstate commerce over the lines of numerous railroads. The contract entered into for the transportation of the race horses and plaintiffs as agents and attendants to said animals, from Detroit, Michigan, to Dallas, Texas, was in the form permitted by the Interstate Commerce Commission. It was engaged in the carrying of animals other than ordinary live stock and, because it was necessary that the owner or his agent accompany said animals, he or his agent was permitted to be transported upon the same car on which they were carried.

After having reviewed many cases, the conclusions reached by the court in the Lockwood case were: First. That a common carrier cannot lawfully stipulate for exemption of responsibility, when such exemption is not just and reasonable in the eye of the law. Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter. Fourthly. That, a drover, traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.

A railroad company cannot exempt itself from the exercise of care and diligence in carrying its passengers, cannot, even by contract, limit its liability for injuries to passengers to gross negligence alone. It is responsible for any degree of negligence which is sufficient to cause the injury, whether the negligence be called gross or ordinary. The requirement of such responsibility is demanded upon the grounds of public policy. Illinois Cent. R. Co. v. Beebe, supra.

“Attendants’ Contract,” which was signed by each plaintiff before taldng passage, in which he agreed to assume all risks of accident and relieve the defendants from all claims of damage, is void on the ground of public policy, the defendant, Railway Express Agency, in its relation to plaintiffs being a common carrier of ' passengers and plaintiffs being passengers for hire.

We are therefore of opinion that the court did not err in striking from the answer of defendants the special defense that the Railway Express Agency was not a common carrier of passengers and that by contract the defendants’ liability for damages, by reason of negligence, was limited and that it did not for any consideration agree to carry the plaintiffs as passengers.

Defendants also insist that the court erred in refusing witnesses for defendants to testify and answer questions as to what caused the derailment of the engine and in refusing to admit certain photographs in evidence.

From the brief and abstract of the testimony it is not clear just what questions the court refused to let the witnesses answer. One, William J. Tesch, a road foreman of engines, was produced as a witness on behalf of defendants and was asked to give his opinion, based upon his knowledge and experience and practical operations of railroad engines and of the track, switch and speed of the train, what caused the derailment of the engine. In the abstract the question was as to whether he had an opinion as to what caused the derailment. However, on the theory the witness qualified as an expert and was asked the question as to what caused the derailment of the engine, we are of opinion that the court properly refused to permit the witness to give his opinion.

The claim of defendants is that they were free from negligence, and that Mrs. Dammann negligently collided with the front end of the train, causing the pony trucks under the engine to leave the rails, and that when the switch was reached the pony trucks followed the derail and overturned the engine. The claim of the plaintiffs is that it was the negligent management of the engine by the servants of defendant railway company, both before and after the automobile was struck, that caused the derailment of the engine, that at the high rate of speed at which the train was traveling the sudden application of the brakes by the engineer caused the locomotive and cars to become derailed.

It was the province of the jury to determine as to whether the negligence of the defendant railway company caused the train to become derailed and thus causing the injury to plaintiffs, and the rule is, that a witness cannot be permitted to give his opinion on the very fact which the jury is to determine. Schlauder v. Chicago & Southern Trac. Co., 253 Ill. 154, 97 N. E. 233. Exhibits L and M, which the court refused to admit, were photographs of trains on the track at or near the scene of the accident, and the court did not err in refusing to let them go to the jury.

It is also contended that the court erred in instructing the jury as to the form of verdicts by not giving them an opportunity to find for or against either of the defendants without finding for or against both of them. The form of verdict was given as to each plaintiff separately, instructing the jury that if they find the issues for plaintiff (naming him), and that the defendants (naming both) are guilty, then the form of your verdict may be, etc., and instructing the jury that if they find for the defendants the form of your verdict may be, etc. We fail to find from an examination of the abstract where any instruction, requesting the court to instruct the jury that, as the evidence might warrant, you may find either or both of the defendants guilty, or either or both not guilty. If the defendants had wished to have such an instruction given to the jury it was their duty to have tendered such instruction to the court, and not having done so they cannot now complain.

It is also complained that the court gave six instructions as to form of verdict, one for each plaintiff, which were exact repetitions with the exception of the name of the plaintiff; that frequent repetitions of the same matter in an instruction is condemned by the courts.

Under our present Practice Act it is permissible for all persons to join in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly or severally, or in the alternative, where, if such persons had brought separate actions, any common question of law or fact would arise. No application was made by defendants for separate trials because of the fact that such joinder might embarrass or delay the trial of the action. Bach separate plaintiff and defendant is permitted under the law to produce such competent evidence as he may deem proper to maintain his contention, and is entitled to have the court instruct the jury as to the separate issues raised by him, and in this case, on the question of damages, evidence was introduced as to the damages sustained by each separate plaintiff on behalf of both the plaintiffs and defendants, and we are of opinion that each plaintiff was entitled to have a separate instruction given in his behalf, and that therefore no error was committed by the court in the giving of identical instructions on that subject.

It is also said that there are several defects in the instruction. The jury were told by this instruction that, in determining the amount of damages which the plaintiff is entitled to recover the jury have a right to, and they should take into consideration, all of the facts and circumstances proven by the evidence before them, the nature and extent of such plaintiff’s physical injuries, if any, so far as the same are shown by the evidence, his suffering in body, if any, resulting from such physical injuries, as the jury may believe from the evidence before them in this cause he has sustained by reason of such injuries.

This instruction does not require that the amount should be based on the evidence as to the damages for which the law allows recovery, but authorizes the jury to take into consideration all of the facts and circumstances proven by the evidence before them, and for that reason was improper.

In considering a similar instruction, which authorized the jury to take into consideration all of the facts and circumstances in evidence in determining the amount of damages, our Supreme Court, in Garvey v. Chicago Rys. Co., 339 Ill. 276, 171 N. E. 271, said: “An instruction which does not require the assessment of damages to be based upon the evidence as to damages for which the law allows recovery, is improper. An instruction embodying the above statement is particularly objectionable when there is more than one party defendant.” (The Yellow Cab Co. being a party defendant in the court below, the suit having been dismissed as to it after verdict.) It was further said: 1 ‘ However, this instruction did not stop with the above words, but went on to outline the various elements of injury which may properly be taken into consideration, and the broad generalization of the first statement was, in effect, limited thereby. ’ ’ It was also stated in the opinion, “that the giving of this instruction might not in itself call for a reversal in the case, inasmuch as there must be reversal on other grounds, the error should not be repeated on a new trial.”

The instruction under consideration did not stop with the statement, that the jury could consider all of the facts and circumstances in evidence, but went on to outline various elements of injury which might properly be taken into consideration. Although the court should have instructed the jury that the amount of damages must be based upon the evidence as to damages for which the law allows recovery, yet, we do not consider the giving of this instruction as reversible error, neither did the fact that the instruction informed the jury that compensation may be allowed, etc., “so far as such damages or injuries, if any, are claimed and alleged in the complaint, ’ ’ have a tendency to prejudice the defendants.

Defendants also complained of the action of the court in refusing instructions 1, 2 and 3, offered on their behalf, such complaint however not being urged as to instructions 1 and 2. It is argued, however, that instruction 3 should have been given and that it was error to refuse it. The jury was instructed that unless it found from a preponderance of the evidence that defendants, or either of them, are guilty of the negligence charged, and that such negligence was the cause of the injury to the plaintiff, then they would have no occasion to consider the matter of damages. This instruction might well have been given, but its refusal was not prejudicial to the defendants. Chicago City Ry. Co. v. Hagenbech, 228 Ill. 290, 81 N. E. 1014.

It is argued by the defendants that the verdicts of the jury are excessive and against the weight of the evidence and the result of passion and prejudice.

The fixing of the amount of damages in an action for personal injuries is peculiarly within the province of the jury, there being no legal standard by which to measure the amount of the damages to be awarded. We have carefully considered the evidence pertaining to the injuries received by each of the plaintiffs.

Appellee, Harold Crane, was in a section of the car with six horses, bales of hay and a water barrel on which he was leaning at the time of the accident. He fell into the barrel head first and things fell on top of his shoulders and a horse was standing on top of him and he was unable to get up. He was kicked by a horse and became unconscious and was there for two and one-half to three hours. Finally the horse was pulled straight up with ropes and he was released. Was taken to the Hillsboro Hospital and treated by Dr. Kimball for a period of two months. He was in bed more than four weeks continuously and was unconscious five days and not in his right mind for a period of two weeks. He sustained a severe shock and contusions and concussion of the brain. Terrible contusions of thigh, shoulders, right-side of chest and back, right hip and thigh. Had a fracture of the coccyx, or tail bone. When he left the hospital he could not raise his right arm. He went to Detroit and was treated by Dr. Sterling until after Christmas. From his examination Dr. Sterling was of opinion that he had suffered a concussion of the brain and that the condition of his right arm evidently followed a contusion or laceration of the brachial plexus, a large nerve supplying the arm and forearm. Crane was unable to work at the time Dr. Sterling saw him. He left Detroit the last of January, 1936, and went to Motor City Stables at San Antonio, Texas. He was unable to work. He went to Hot Springs, Arkansas, and was there about three months and was laid up a month and a half and started to work in March. At the time of the trial he was still bothered with pain in his right shoulder and back and if he had heavy work or lifted his arm above his head it would cramp.

When the train hit the crossing appellee, Emil Santiago, felt a lurch as the wheels of the train went over the ties and something hit his head and threw him on the floor. He came to while on the floor but could not breathe very well. He was in the car about two hours when they pulled him out. He was all bloody and a doctor covered him with blankets and gave him a couple of shots in the arm. He was taken to the hospital. He had a hole in the side of his head. His wounds were bandaged and stitches were taken to close them. His ribs and breast were smashed in and he was taped from his shoulder on down about four or five ribs. He was almost scalped and had concussion of the brain and lost a lot of blood and was weak, with some degree of shock, was in the hospital four days and then went to Detroit and then came back to the hospital when the plaster was taken off his head and the stitches taken out. He left the tape on his body and shoulder three or four months. Had pains about six months and could lift nothing heavy, as it hurt his shoulder.

We are of opinion that the verdicts of the jury fixing the damages of appellees, Harold Crane and Emil Santiago, arc not excessive and are not the result of passion and prejudice and that the judgments should be affirmed. •

The judgments of the circuit court of Montgomery county, recovered by plaintiff, Harold Crane, for $5,000 and recovered by plaintiff, Emil Santiago, for $2,500 and against the defendants, Railway Express Agency, Incorporated, and Charles M. Thomson, trustee of the estate of Chicago and Eastern Illinois Railway Company, are each affirmed with costs.

Ralph Flynn had his neck twisted and the back of his head hurt and was kicked by a horse. He could not move his neck very well for three days. He went to the hospital and he testified that Dr. Kimball saw him, although the doctor had no record of having seen him. He suffered for over three weeks with a pain in the back of his neck.

Merivel Tucker had his knee injured and a bump on his head and nicks in his back and was taken to the hospital and saw Dr. Kimball, and then was taken to the Hillsboro Hotel and was there four or five days. His testimony is that when he left he could hardly walk, his leg was bad and his knee swelled up and he could not kneel on it. He was a race horse groom and it was necessary to use his knee to put bandages on horses. He had contusions and lacerations of the leg below the knee with a severe contusion of the left knee.

Charles E. Baker was hurt in the right temple, the right and back side of head, and was bruised all over and his neck was scratched. He had pain four or five months afterwards and at the time of the trial he still had dizzy spells and his neck bothered him. He went to work for two different persons and had to quit. He had severe dizziness when he stooped over and was bothered with his leg.

William Lauscher was bruised on his back and shoulder and was cut on his hand and cheek and had severe bruises. He was taken to the hospital and was there 25 or 30 minutes, when he was sent to the hotel. Was sore for two weeks and when he galloped a horse sharp pains would shoot through his back.

The amount of damages that each particular plaintiff sustained must of necessity be awarded to him individually. Taking the aggregate amount of damages awarded by the jury to each particular plaintiff, $14,325, and comparing that amount with the sum of $300 to $500, which defendants claim would have been the recoveries for all of the plaintiffs, if the cases fell under the workmen’s compensation laws of either of the States of Michigan or Illinois, would not prove that the verdicts were exorbitant and excessive as contended by defendants. ■

While the verdicts of the jury, in our opinion, in the cases of Ralph Flynn, Merivel Tucker, Charles E. Baker and William Lauscher are larger than mere compensation for the injuries each received will warrant, we are unable to find any evidence that the jury were influenced by passion and prejudice.

If appellee, Ralph Flynn, will, within 10 days from the date of the filing of this opinion, file in this court a remittitur of $500, the judgment of the circuit court will be affirmed for the sum of $700, said appellee to pay one-twelfth of the costs of this appeal, otherwise the judgment for $1,200 recovered by said appellee, Ralph Flynn, will be reversed and remanded for a new trial, he to pay one-sixth of the costs of this appeal.

If appellee, Merivel Tucker, will, within 10 days from the date of the filing of this opinion file in this court a remittitur of $1,000, the judgment of the circuit court will be affirmed for the sum of $1,500, said ap-pellee to pay one-twelfth of the costs of this appeal, otherwise the judgment for $2,500, recovered by appel-lee, Merivel Tucker, will be reversed and remanded for a new trial, he to pay one-sixth of the costs of this appeal.

If appellee, Charles E. Baker, will, within 10 days from the daté of the filing of this opinion, file in this court a remittitur of $500, the judgment of the circuit court will be affirmed for the sum of $1,000, said appel-lee to pay one-twelfth of the costs of this appeal, otherwise the judgment for $1,500, recovered by appellee, Charles E. Baker, will be reversed and remanded for a new trial, he to pay one-sixth of the costs of this appeal.

If appellee, William Lauscher, will, within 10 days from the date of the filing of this opinion, file in this court a remittitur of $625, the judgment of the circuit court will be affirmed for the sum of $1,000, said appel-lee to pay one-twelfth of the costs of this appeal, otherwise the judgment for $1,625, recovered by appellee, William Lauscher, will be reversed and remanded for a new trial, he to pay one-sixth of the costs of this appeal.

Judgments in favor of Harold Crane and Emil Santiago affirmed. Remittiturs filed by Ralph Flynn, Merivel Tucker, Charles E. Baker, and William Lauscher and judgments affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    First Trust Joint Stock Land Bank of Chicago, Appellee, v. Luella Cutler et al., Appellants.
    Gen. No. 9,081.

      Opinion filed January 17, 1938.
    Springstun & Springstun, of Pana, for appellants.
    Dove & Dove, of Shelbyville, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

In December, 1922, Elmer Cutler, Clifford Cutler, George Cutler and Ruth Cutler Scheer were the owners as tenants in common, each owning an undivided one-fourth interest of the premises described in the mortgage sought to be foreclosed by the plaintiff in this proceeding, subject to a life estate in Luella Cutler, their mother. Elmer Cutler was a minor, of about the age of 17 years at the time of the execution of the note and mortgage, and Alvin R. Cutler, his father, was his duly appointed guardian by an order of the county court of Shelby county and was empowered by said court to execute the note and mortgage to plaintiff.

On December 21, 1922, Ruth Scheer and Ruby F. Scheer, her husband, George Cutler, unmarried, Luella Cutler and Alvin R. Cutler, her husband, and Alvin R. Cutler, guardian of Elmer Cutler, a minor, Clifford Cutler and Frances Cutler, his wife, executed the note and mortgage. Plaintiff filed a suit to foreclose said mortgage. On November 23, 1935, plaintiff filed its petition for the appointment of a receiver, and on said same day Elmer Cutler and other defendants filed amendments to their respective motions ty dismiss the complaint. A hearing was had on December 3, 1935, on the motions as amended and on the petition for the appointment of a receiver, before the Hon. J. L. McLaughlin, a circuit judge sitting in the circuit court of Shelby county, which motions and petition for the appointment of a receiver were taken under advisement. The court on February 1, 1936, found that the premises were owned by Clifford Cutler, George Cutler, Elmer Cutler and Ruth Scheer, each owning an undivided one-fourth interest therein, subject to the life estate of Luella Cutler, which was on March 12, 1930, conveyed by her to her son, Elmer Cutler. The court found the mortgage as to Elmer Cutler null and void and sustained his motion to dismiss the cause as to him. The motion to dismiss was denied as to the other defendants and the court entered a rule on them to answer by February 1, 1936. W. C. Redham was appointed receiver. This order was filed on February 11, 1936. An appeal and cross appeal were taken to the Appellate Court, and on June 3,1936, the appeal and cross appeal were dismissed.

On October 15,1936, plaintiff amended its complaint. On November 7, 1936, Luella Cutler, Alvin R. Cutler, Clifford Cutler, Ruth Scheer and George Cutler filed an answer to the amended complaint of plaintiff, in which it was alleged that this case was originally filed in the county court of Shelby county to foreclose the same mortgage sought to be foreclosed in this case, the case being filed in that court by Dove & Dove, the attorneys for the plaintiff in this suit, the note and mortgage and the parties being identical with the note and mortgage and the parties, plaintiff and defendants, in this suit; that the case filed in that court was upon motion of defendants given consideration by the county judge of Shelby county, Illinois, and after the matter had been thoroughly discussed by counsel for plaintiff and defendants the court dismissed the case, and that the dismissal of said case in the county court of Shelby county, Illinois, is a bar to this action.

On September 17, 1936, plaintiff filed an amended complaint, and on October 15, 1936, an amendment to the amended complaint. Elmer Cutler, after having had the cause dismissed as to him by an order entered in said cause on February 11,1936, entered his appearance in said cause and filed an answer on November 7, 1936. On November 27, 1936, Elmer Cutler renewed his motion to dismiss. Said cause came on to be heard in open court upon the amended complaint as amended and the answer of Luella Cutler, Alvin R. Cutler, Clifford Cutler, Ruth Seheer, George Cutler and the answer of Elmer Cutler and the motion to dismiss filed by Elmer Cutler, and after hearing said cause the court took the same under advisement. On March 19, 1937, the court found by its decree that on December 11, 1922, Elmer Cutler was a minor and Alvin R. Cutler was his guardian by appointment of the county court of Shelby county, and that said guardian was empowered and directed by the county court of Shelby county to execute, on behalf of said Elmer Cutler, a note and mortgage to the plaintiff; that defendant, Alvin R. Cutler, guardian, and the other defendants executed a note and mortgage; that Elmer Cutler attained his majority several years prior to 1930, and both before and after 1930 he paid plaintiff instal-ments upon the principal and interest due on said note, which were accepted from said Elmer Cutler and the note credited therewith; that Luella Cutler and Alvin R. Cutler, her husband, on March 12, 1930, conveyed by quitclaim deed the life estate of Luella Cutler in said premises to Elmer Cutler; and that at the time of the execution of the mortgage Luella Cutler owned a life estate in all of the premises described in the mortgage and this decree, that the fee, subject to the life estate, was vested in Clifford Cutler, George Cutler, Elmer Cutler and Ruth Scheer as tenants in common, each owning an undivided one-fourth thereof, subject to the life estate; that by virtue of the statute the interest of Elmer Cutler was not conveyed by said mortgage, and said mortgage is not a lien on the undivided one-fourth interest of said Elmer Cutler, but is a lien upon the life estate of Luella Cutler, now owned by Elmer Cutler, in and to all of said premises and a lien upon the three-fourths interest in fee owned by the defendants, Clifford Cutler, George Cutler and Ruth Scheer, and that said defendants are jointly and severally liable for the amount due upon said mortgage. A decree ivas entered directing the sale of an undivided three-fourths of said real estate in fee and the life estate formerly owned by Luella Cutler.

Appellants, Luella Cutler, Alvin R. Cutler, Clifford Cutler, George Cutler and Ruth Scheer, took an appeal from said decree of the circuit court of Shelby county. Appellee filed a notice of appearance and cross appeal from said decree whereby it was adjudged that the interest of Elmer Cutler in the premises was not conveyed by said mortgage and wherein it was provided that cross appellant only had a lien on an undivided three-fourths interest in fee and the life estate of Luella Cutler, and directed the sale of only the three-fourths interest in fee and the life estate.

Appellants contend that the court erred in taking jurisdiction of said cause and in refusing to dismiss Elmer Cutler as defendant to the amended complaint as amended and in entering the decree. Appellee insists that the court has jurisdiction of the subject matter and of all the parties; that the order of the county court authorizing Alvin B. Cutler, guardian, to execute said mortgage is a valid order and the mortgage is valid as to the. interest of Elmer Cutler.

Although the appeal was taken from the decree of foreclosure, entered on March 19, 1937, appellants enter into a long argument, the substance of which is that Judge McLaughlin on December 7, 1935, heard a motion of plaintiff for the appointment of a receiver and motions of defendants to dismiss the complaint, and that on January 11, 1937, he decided the case, and on that day the following minutes appear on the docket: “Motion in behalf of Elmer Cutler to dismiss cause allowed, and said cause dismissed as to said defendant, Elmer Cutler. Motion on behalf of Luella Cutler, et al., denied and rule entered on said defendants to answer complaint in ten days.” On February 11, 1936, a decree was entered which contained matter not covered by his opinion and the minutes entered on January 20, 1936, and finds that a receiver should be appointed, and appointed W. C. Bedham receiver; that there was no evidence offered to support the findings ; that the decree filed February 11, 1936, is ■ illegal in its entirety except in so far as it carries out the decision rendered on the hearing on December 7, 1935.

This matter is not before us for consideration on this appeal. If appellants had wished to contest the correctness of the decree entered by Judge McLaughlin on the appointment of the receiver, they should have taken an appeal from that decree. Under our present Practice Act a decree becomes final after 30 days and cannot be amended or vacated by the court entering the same.

Defendants say in their brief that they denied the allegations of the complaint and alleged that the circuit court of Shelby county, Illinois, had no jurisdiction to try the issues involved in the case, and that the case was formerly tried in the county court of Shelby county, Illinois, and that the note and mortgage were null and void on account of the same being made in violation of the statutory provisions, to which allegations plaintiff filed no replication and no reply was on file when the court proceeded to hear the case. Section 40 (2) of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, §164; Jones Ill. Stat. Ann. 104.040, provides that every allegation, except allegations of damages not explicitly denied, shall be deemed to be admitted.

We fail to find in the answer all of the allegations cl aimer! to have been made by the answer, at the pages in the record referred to, but find other and different allegations. A default admits only that the facts alleged in the complaint or answer are true, and not that they constitute a cause of action or a defense.

It is also claimed that Judge McLaughlin by his decree had dismissed Elmer Cutler out of the case and found the note and mortgage were null and'void as to him and not a lien on his undivided one-fourth interest in said real estate and that the decision has never been reversed or set aside. While this is true, Elmer Cutler, after the filing of the amended complaint as amended, entered his appearance in said cause and filed an answer and is one of the parties before the court on a final hearing of said cause of Judge Wright.

It is also insisted that the findings of Judge Wright that Alvin Cutler as guardian of Elmer Cutler was empowered and directed by the county court of Shelby county, Illinois, to execute on behalf of said Elmer Cutler a note and mortgage to plaintiff, is not supported by any evidence in the record. Although there is no evidence in support of such findings, yet complainant makes such allegation in its complaint and we fail to find in the abstract of the record any denial of such allegation in any of the answers filed by defendants. As to the contention of the defendants that a judgment in bar was entered in the county court of Shelby county in a suit between the same parties and to foreclose the same mortgage, we are unable to find in the allegations of the answer or by the proof in the record that any judgment of dismissal was obtained after a hearing upon the merits of the case, the answer alleging that it was upon the motion of defendants.

Appellants also contend that the circuit court has no jurisdiction of the matter in controversy because of the fact that the statute provides: ‘ ‘ Foreclosures of mortgages authorized by this Act (ch. 64, sec. 26, Ill. State Bar Stats. 1935; ch. 64, 26, Ill. Rev. Stat. 1937; Jones Ill. Stat. Ann. 57.26) shall only be made by petition to the county court of the county where letters of guardianship were granted.”

We are of opinion that the circuit court of Shelby county has jurisdiction of this cause. Art. VI, Sec. 12, Constitution of 1870, provides that: “The Circuit Court shall have original jurisdiction of all causes in law and equity.” In this State a court of equity has jurisdiction of a complaint filed for the foreclosure of mortgages. An act should be so construed as to hold the same constitutional and to hold that by reason of the language contained in said section 26 of ch. 64 of the Illinois Revised Statutes the circuit court is deprived of jurisdiction to entertain a bill to foreclose would be in effect to decide that this section 26, ch. 64, 111. Rev. Stat. 1937, so far as it provides such mortgages should only be foreclosed in the county court, where letters of guardianship were granted, is unconstitutional and void.

It is also contended that the mortgage is void as to the defendant, Elmer Cutler, for the reason that the maturity of the indebtedness is 33 years, a time beyond the minority of the ward, and that the execution of the mortgage in behalf of Elmer Cutler, without authority and for a period unauthorized by law, renders the whole mortgage void, and that it should not be enforced against the other defendants, although it is not denied that the property at the time the plaintiff made the loan was incumbered by a valid first mortgage of $5,000 held by the Pana National Bank, and that said bank received -$5,324.72 of the proceeds of the loan, in full of the amount due it, and the balance, $2,651.28, was paid to the defendants, Luella Cutler, Alvin R. Cutler, guardian of Elmer Cutler, Clifford Cutler, George Cutler and Ruth Scheer. The note and mortgage made by Alvin R. Cutler, guardian on behalf of Elmer Cutler, and joined in by the other defendants, was not null and void, but only voidable by Elmer Cutler or his guardian acting on his behalf during his minority. Anything that is void is null, ineffectual and nugatory, having no legal force or binding effect and unable in law to support the purpose for which it was intended. McGarry v. Village of Wilmette, 303 Ill. 147, 135 N. E. 96. An instrument or transaction is voidable when the imperfection or defect can be cured by the act or confirmation of him who could take advantage of it.

The provision of our statute expressly authorizes the county court to empower the guardian of a minor to mortgage his real estate, and there was, therefore, authority in that tribunal to adjudicate, and at most its orders were erroneous only, and not void. Until reversed on appeal, or set aside by some appropriate proceeding, they were binding. Kingsbury v. Powers, 131 Ill. 182, 22 N. E. 479.

The amended complaint filed by plaintiff alleges that Elmer Cutler was a minor and that Alvin R. Cutler was appointed guardian of such minor, and that such guardian was duly empowered and directed by the county court of Shelby county to execute on behalf of said Elmer Cutler a note and mortgage to plaintiff; that defendants executed or delivered a note and mortgage to plaintiff, that Elmer Cutler long since attainéd the age of his legal majority, and on September 4,1931, and other dates named, made substantial payments on the principal and interest instalments due on said note and paid the taxes for 1931; that default was made in the payment of the instalment due May 1, 1934, and default was made in the payment of taxes and insurance; that the defendants, including Elmer Cutler, be decreed to pay said amount and in default thereof the mortgaged premises be sold. The decree ordered the sale of three-fourths of the real estate, and found that the interest of Elmer Cutler was not conveyed by said mortgage.

It is a settled rule that a decree must conform to the allegations in the pleadings as well as to the proof in the cause and the prayer of the bill, and relief must be granted on the theory of the complaint, or not at all. The relief granted by the decree did not correspond with the theory of the complaint nor with the allegations of the pleadings. Stearns v. Glos, 235 Ill. 290, 85 N. E. 335. The allegations in the complaint and proof that Elmer Cutler, after arriving at his legal majority, made substantial payments upon the instalments of principal and interest due were of no avail to the plaintiff as the complaint was not formulated on the theory of ratification, but upon the theory that the note and mortgage was binding upon Elmer Cutler, while the same under the law was voidable, and such defense could be made by Elmer Cutler in the suit to foreclose the mortgage or by an independent suit in equity. The fact that the note and mortgage are voidable as to Elmer Cutler would not relieve the other makers of the note and mortgage from their obligation to repay the money they borrowed from plaintiff.

The decree of the circuit court of Shelby county is reversed and the cause remanded for a new hearing.

Reversed and remanded.


author: Mr. Justice Riess

text:
    William Strauss et al., Appellants. William Strauss et al., Appellees, v. Sidney Strauss et al., Appellees.
    Gen. No. 9,073.

      Opinion filed January 17, 1938.
    H. Gr. Greenebaum, Cyril A. Burns and A. H. Fell- - hbimer, all of Pontiac, and George C. Weaver, of Pitts-field, for appellants.
    Brown, Hay & Stephens, of Springfield, for appellee Albert Stranss; Albert C. Schlipf and Robert W. Williamson, of Springfield, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellants herein have appealed from an order of the circuit court of Pike county, Illinois, allowing solicitors’ fees in the sum of $1,000 to counsel for defendant appellee Albert Strauss, for services performed in the Supreme Court in a chancery suit filed by the plaintiffs to construe certain provisions of the last will and testament and codicils thereto of one Isaac Strauss, deceased.

It appears that Strauss was a merchant and real estate dealer who had died testate in said county, leaving a last will and testament, with three codicils, providing numerous legacies and trust funds for the benefit of his wife, seven children and certain grandchildren, and for the continuance of certain business enterprises in all of which a brother held an undivided half interest; that the gross value of the property of decedent for inheritance tax purposes was $614,000 (subsequently valued at $500,000 in the hearing in which said solicitors’ fees were allowed), which included a trust fund of $75,000 from which the defendant appellee, Albert Strauss, was to receive a life income, in addition to his claim to a one-seventh interest in the alleged residuary estate and lapsed legacies in question of a value of about $15,000.

Issues were joined on the original and supplemental bills of complaint and answers thereto and tried in the circuit court, and a decree was entered in conformity with the contentions of the defendant appellee, Albert Strauss. The plaintiffs thereupon appealed from said decree, and the Supreme Court, in the case of Strauss v. Strauss, 363 Ill. 442, 2 N. E. (2d) 699, “affirmed in part and reversed in part” the decree of the lower court, and the cause was remanded with directions to the chancellor of the lower court to enter a decree in conformity with the opinion and mandate of the Supreme Court therein. Upon a motion for a rehearing in the Supreme Court, the opinion was modified, and a dissenting opinion was filed by one of the justices.

In passing upon the issues and outline of facts involved in this case, it is not necessary nor will the court undertake to give a full and accurate outline of the .allegations of the pleadings, the evidence in support thereof, nor of the findings, decrees and orders of the courts entered in the disposition of the foregoing litigation.

The case was sharply contested, numerous important interests and questions of law were litigated, and in the hearing of the bill upon its merits in the court below, solicitors’ fees were allowed to both parties. An attorney fee of $750 was so allowed to defendant’s solicitors, from which provision of that decree, no appeal was taken and no objection thereto was made.

The defendant appellee was a son and legatee of the deceased and a necessary party to the proceedings filed by the plaintiff, which sought the construction of the alleged ambiguous provisions of the will and codicils in question. The same attorneys represented the respective parties in contesting the cause in the Supreme Court upon appeal as in the court below. The payment of costs and expenses in the hearing on appeal in the amount of $291.60 was, upon said latter hearing, assessed against the appellee, but no order was entered concerning the allowance or payment of solicitors’ fees.

After the cause had been remanded, the defendant appellee, Albert Strauss, filed a petition in the circuit court praying an allowance of both the expenses assessed in the Supreme Court and of reasonable attorney fees for defendant appellee’s counsel in preparation and trial of the cause while pending in the Supreme Court.

A hearing was had in the circuit court upon this petition; the records and documents in the proceedings in both the circuit and Supreme Courts were introduced in evidence, and two witnesses were heard on the question of the nature, extent and value of the legal services performed. The law firm of Brown, Hay and Stephens had represented the defendant appellee during the entire proceedings, and Logan Hay testified that in the preparation and trial of the cause pending in the Supreme Court, he had given over 400 hours of actual service therein and that the reasonable, usual and customary value and charge therefor was $1,000. H. Gr. Grreenebaum, a plaintiff and acting of counsel for the plaintiff appellants, testified that.the value of the services performed in both the circuit court and Supreme Court was $1,000. The court found in substance that the services had been so performed by appellee’s counsel; that it was necessary for said ap-pellee to appear in the Supreme Court and to defend the decree of the circuit court, wherein he had been made defendant; that he was compelled to and did employ said counsel and had become obligated to pay a reasonable fee for such services necessarily incurred on account of the ambiguities and uncertainties in said will; that the decree had been affirmed in part and reversed in part and remanded by the Supreme Court with directions; that reasonable solicitors’ fees for services so necessarily performed were of the value of $1,000, and decreed that the same should be taxed as part of the costs and paid out of the estate of Isaac Strauss, deceased. No allowance was made therein for recoupment of the costs assessed against the appellee in the Supreme Court.

The principal contentions advanced by the appellants in their assignment of errors are that the circuit court was without jurisdiction to assess solicitors’ fees for services previously performed in the Supreme Court; that the assessment of any such fees, if allowable, should have been prayed for and allowed in the Supreme Court; that the fixing of the costs and expenses in the Supreme Court had rendered the claim for solicitors’ fees res adjudicata, and that the allowance of $1,000 in fees was, in any event, excessive, in view of the nature and extent of the services performed.

The defendant appellee contends that the circuit court was the proper and only court of original jurisdiction in which this question could be heard; that the Supreme Court could only take jurisdiction thereof on appeal and had no original jurisdiction to fix or assess solicitors’ fees for services in said cause, either independent of or as a part of the costs accruing in said court in said proceedings; that such fees were properly and lawfully allowable to appellee as an interested and necessary party defendant, so appearing in a suit to construe a will; that the amount allowed was reasonable, based upon the evidence and so allowed within the sound discretion of the trial court therein.

Under the well settled rule of law of this State in cases where the will of a deceased testator must be judicially construed, reasonable solicitors’ fees of necessary parties may be allowed by the court and taxed as costs payable out of the estate of the deceased. The equitable reason for this allowance is that where a testator has by his will expressed himself so ambiguously as to justify resort to a court of equity to obtain a judicial construction of the will, it is only just that the solicitors ’ fees of necessary interested parties which have been incurred in procuring a judicial construction of the will should be borne by the testator’s estate. Women’s Union Missionary Society v. Mead, 131 Ill. 338, 23 N. E. 603; Lombard v. Witbeck, 173 Ill. 396, 412, 413, 51 N. E. 61; Ingraham v. Ingraham, 169 Ill. 432, 49 N. E. 320; McCormick v. Hall, 337 Ill. 232, 240, 168 N. E. 900; Strickland v. Strickland, 271 Ill. 614, 621, 111 N. E. 592.

In the case of Strickland v. Strickland, supra, involving the construction of certain terms of a will in controversy, the court, at page 621, said: “The trial court refused to allow solicitor’s fees to counsel for appellee out of the estate. Appellee’s counsel have filed cross-errors questioning this part of the decree. The general rule is, that when the testator has expressed his intention in his will so ambiguously as to make it necessary to go into court in order to determine which of two adverse claims to the estate is valid, the cost of the litigation should be borne by the fund or property in question. (Ingraham v. Ingraham, 169 Ill. 432; Kendall v. Taylor, 245 id. 617; Dean v. Northern Trust Co., 266 id. 205.) We think it is apparent from this will and on this record that there was an honest difference of opinion as to the proper construction to be placed on the will, and that reasonable solicitor’s fees should be allowed by the trial court.”

In the case of Ingraham v. Ingraham, supra, wherein a bill to construe a will had been filed and was pending on appeal in the Supreme Court, in which the decree of the lower court had been modified, a petition was filed to retax costs for the purpose of obtaining an allowance for solicitors’ fees and expenses by the Supreme Court on the appeal, the court, at page 472, stated that: “An attempt is thus made to raise an issue between the parties as to the allowance of attorney’s fee and expenses incurred in this court, the determination of which would require us to assume jurisdiction in a matter in the nature of an original action. We have original jurisdiction only in cases relating to revenue, mandamus and habeas corpus. In all other cases the jurisdiction is only appellate.

One of the cross-errors assigned on the appeal was that the circuit court erred in allowing attorneys’ fees for complainant’s solicitors, to be paid out of the estate. We considered that assignment of error and held the case presented was one in which such fees could be properly allowed, but we clearly have no jurisdiction to determine or pass upon the reasonableness of attorneys’ fees not adjudicated upon by the court below. If the petitioner, or party making this motion, could come into this court and urge a claim for reasonable attorney’s fee, the other party would clearly have a right to contest that claim, and we would be compelled to try and determine the issue thus presented. This it will not be seriously claimed we can or should do.”

It thus appears that the Supreme Court was not the proper tribunal in which to file a petition or motion for the allowance of solicitors’ fees and that the court further expressly disclaimed jurisdiction to determine or pass upon the allowance or reasonableness of attorney fees not adjudicated upon by the court below, which was the only tribunal in which the petition could be properly filed and heard in the first instance, and only after the nature and extent of the services rendered by counsel in the Supreme Court could be determined. Appellee followed the approved method of procedure and the only method available to him by filing his petition in the circuit court.

The foregoing method of procedure so recognized by the Supreme Court was also followed and approved by this court in the case of Dimes Savings Bank & Trust Co. v. Watson, 208 Ill. App. 382. There, a testamentary trustee had filed a bill for the construction of a will, certain parts of which were held invalid, and the decree, on appeal, had been affirmed by the Supreme Court. The appellants then filed a petition in the trial court for the allowance of solicitors’ fees and expenses. The petition was dismissed and an appeal was taken to the Appellate Court, which affirmed the order of the lower court on the facts of that case, but held that the manner of presenting the question of allowing solicitors’ fee's was raised properly by filing the petition in the lower court. In its opinion, at page 385, the court said: “It therefore seems that the solicitors’ fees for services to be rendered in the Supreme Court in cases like this cannot be fixed and allowed in advance by the trial court and that the question cannot be determined by motion in the Supreme Court; therefore the question whether they are or are not allowable is here raised in the only available place.” See also Kingsbury v. Powers, 26 Ill. App. 574.

The rule, therefore, is well settled in this State that the proper tribunal in which to petition for the allowance of solicitors’ fees for services rendered in the Supreme Court on appeal in cases involving the construction of a will is the trial court in which the same was heard; that the same could not be properly filed and considered in the court of review for want of original jurisdiction; that the same could only be properly filed in the trial court after the case had been heard and disposed of in the court of review and that after such hearing and allowance or disallowance of the petition in the lower court, the final order became appeal-able and could then and not until then be heard by a court of review upon an appeal from said order.

The costs assessed against the appellee in the Supreme Court upon appeal did not and could not, therefore, for want of jurisdiction, include the allowance or disallowance of any solicitors’ fees of appellee herein, and that question was not before the court of review for adjudication. It is expressly provided by ch. 33, par. 22, of Ill. Rev. Stat. 1937; Jones Ill. Stat. Ann. 107.059, in relation to costs that: “If any person shall . . . take an appeal to the Supreme Court, to review the judgment of any other court . . . and if the judgment be reversed, the appellant . . . shall recover his costs and shall have execution therefor, as in other cases.”

The mandate of the Supreme Court followed this provision of the statute, and since the cause was reversed, the costs incident to the appeal in the amount of $291.60 were so taxed against the appellee. It is apparent that the order of the Supreme Court assessing costs could not be res adjudicata on the question of solicitors’ fees, since that court did not undertake to pass upon and lacked original jurisdiction necessary to pass upon that issue.

The circuit court having properly exercised its jurisdiction in passing upon and allowing the petition for solicitors’ fees, it only remains for this court to pass upon the reasonableness of the fee allowed. There, the nature and extent of the services of appellee’s counsel in the Supreme Court were established by competent legal evidence, the weight and probative force of which was for the trial court to pass upon, and the amount allowed was within its sound discretion. The amount so allowed as solicitors’ fees by the trial court, under the evidence, will not be interfered with on appeal, unless there has been manifest abuse of the trial court’s discretion. Lombard v. Witbeck, supra; Women’s Union Missionary Society v. Mead, supra; Harris Trust & Savings Bank v. Morse, 238 Ill. App. 232. In view of the nature, extent and value of such services, this court is of the opinion that the fee allowed was not unreasonable and that the trial court did not abuse its discretionary power in the allowance thereof.

The court has considered all further assignments of error and is of the opinion that no reversible. error appears in the record. The judgment of the circuit court of Pike county will, therefore, be affirmed.

Judgment affirmed.


text:
    In re Estate of Eli Brown, Deceased. Guy C. Brown, Appellee, v. Katie Brackney, Appellant.
    Gen. No. 9,079.

      Opinion filed January 17, 1938.
    Harvey Gross, of Paris, and Earl M. Mann, of Terre Haute, for appellant.
    5. I. Headley, of Paris, and Acton, Acton & Baldwin, of Danville, for appellee; W. M. Acton and Harvey H. Acton, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Appellant, Katie Brackney, filed objections in the county court of Edgar county, Illinois,, to three items of credit taken ill the final report of Guy C. Brown, execiitor of the last will and testament óf Eli Brown, deceased, wherein she, was named as a legatee. From the order of said court sustaining in part and overruling the remainder of the objections, appeal was taken by her to the circuit court of said county, wherein an order was entered contrary in substance to her contentions, from which order she has appealed to this court.

Eli Brown died testate at Redmon in said county on May 21, 1935, leaving a last will and testament dated March 5, 1929, and a codicil thereto dated September 12, 1934, which were duly admitted to probate. His real estate described in the will and inventory consisted of 240 acres of farm land and a small residence and six-acre pasture lot, which latter were situated in the Village of Redmon in said county. The personal estate, consisting principally of household and farm chattels and products, rentals, and utility stocks, were sold and converted into cash by the executor in the amount of $2,028.39, in addition to a small cash balance in bank. As directed in the will, the executor also sold the house and six-acre tract of land situated in the Village of Redmon which was inventoried at $3,000, but actually so sold for $1,146, and his final report showed gross receipts from the personal estate and Redmon property so converted into cash of $3,197.28. Credits were taken in the executor’s report for $2,235.17, including the three disputed items of credit aggregating $1,173.30 and leaving a controverted balance of $962.11 to be paid to appellant less $79.53 State inheritance tax on an allegedly abated $3,000 legacy.

The county court sustained objections to part of the disputed items and directed the executor to pay appellant $1,814.52 in full payment of said abated legacy. The circuit court, on appeal, overruled the objections to all credits above the amount of $1,146, the proceeds of sale of the Redmon property, which was held to be a special fund out of which said legacy became payable, and further held that the personal estate was primarily liable for the debts and costs of administration of the estate and that the farm lands specifically devised in the will to four children were not ratably chargeable with the payment of said debts as contended by appellant.

No errors were assigned to the action of the circuit court in overruling all objections to payments made by the executor for which credits had been taken in his account, and no cross-errors were assigned thereon. The errors assigned concern only the construction of the provisions of the will relative to the payment of debts of the estate and the legacy payable to appellant under the terms of the will.

Paragraph one of the will of Eli Brown ordered and directed “that my executor hereinafter named pay all my just debts and funeral expenses as soon after my decease as may conveniently be. ’ ’

Paragraph two provided a life estate “subject to provisions of paragraph one” to his wife, Savilla A. Brown, who was then living, in all of his real estate and personal property and then provided that at her death the executor should sell the real estate consisting of the residence and pasture lot in the Village of Red-mon “and all my personalty remaining at the death of my said wife” and out of the proceeds thereof and of money on hand or collected together with $1,000 to be paid by Guy C. Brown, devisee (which latter provision was, however, adeemed in the codicil) and pay to Katie Brackney or her heirs a legacy of $3,000, and from any remaining money, pay any remaining mortgage indebtedness on the farm lands and then divide any remainder “after all debts are paid” among the four children to whom the farm is specifically devised.

Paragraph three specifically devised the 240-acre farm in four separately described tracts to four of testator’s children therein named and further provided that each should contribute $1,000 to each of two sons, who had been missing for several years, in the event that they were still alive and returned within ten years, which payments were made a lien on said lands. It was further provided therein that Guy Brown should pay $1,000 “into the personal and Redmon property fund of my estate from which the bequest of Katie Brackney is paid. ’ ’ Guy Brown was named as executor of the will.

Savilla Brown, the wife of Eli Brown, died on April 17, 1933, and on September 12, 1934, a codicil was executed by Eli Brown providing that Guy Brown (because of services performed in managing the farm and business of testator for several years) should not pay the $1,000 into the personal property fund mentioned in the second paragraph of the will, which was to be diminished to that extent, and all other provisions of the will were to remain in full force and effect, subject only to that change.

Eli Brown, at his death, left four surviving children, Irving J. Brown, Cora E. Lacey, Ethel S. Welch and Guy C. Brown, the executor. He formerly had two sons, Ora E. Brown and Claud Brown, the missing sons mentioned in the will, who had not been heard of for many years and were presumed to be deceased.

It is contended by appellant Katie Brackney that the circuit court erred, first, in failing to find that the fund created by the sale of real estate situated in the Village of Redmon and the proceeds of sale of all personal property and cash on hand at death of Savilla Brown and Eli Brown constituted a fund which was first chargeable with the payment in full of the legacy to appellant in the sum of $3,000 (less inheritance tax) precedent to the payment of any debts of the estate; or secondly, that in the alternative, appellant be paid out of said fund the sum of $3,000 (less inheritance tax) and subject only to the payment of its pro rata share of the debts and cost of administration of the estate of Eli Brown, deceased.

Appellee contends that the provisions of the will and codicil, when construed as a whole, clearly show the intent of the testator to be that the debts of the estate must be first paid from the personal estate and that only the residue remaining thereafter, if any, together with the proceeds of sale of the Redmon property, constitute a specific fund from which appellant’s legacy is payable, and that in so holding, the circuit court did not err. Appellee further contends that if the legacy given to appellant was general, the debts take precedence and must first be paid; that if the same is a demonstrative legacy, it cannot be paid in full unless there remains a residuary estate not specifically bequeathed or devised, after the payment of the debts in full; that if it is a specific bequest, it fails to the extent that there is no estate falling within the definition of the specific bequest out of which it can be paid and that it must therefore abate accordingly.

In passing upon the issues herein it will be necessary to quote the language used in the second and a portion of the third paragraph of the will, which reads as follows:

“Second: To my wife, Savilla Brown, I give and bequeath (subject to the provisions of paragraph one) all of my estate, both real and personal for and during the period of her natural life only; and at her death, I direct that my Executor hereinafter named sell my real estate in the Village of Redmon, Illinois, consisting of my residence property and about six (6) acres of land, and all my personalty remaining at the death of my said wife, at either public, or private sale, as he may see fit, and he is empowered hereby to make good and proper conveyance of title for same. And out of the proceeds of sale and out of money on hand, or otherwise collected from my estate, together with One Thousand ($1000) Dollars to be paid my estate by my son, Guy Brown, as hereinafter provided, my said Executor is to pay to Katie Brackney (who was reared in my family) the sum of three thousand ($3000) Dollars, which I give and bequeath to her and her heirs absolutely, and what money remains after the payment of said three thousand ($3000) dollar bequest shall first be applied to the payment of any mortgage indebtedness that remains unpaid at my wife’s death, on my farm hereinafter described, and on which I now have a small mortgage. And whatever remains after all my debts are paid I desire to be divided equally between my four children, to whom I give my farm, share and share alike.”

‘ ‘ Third: I give and bequeath my two hundred forty (240) acre farm located in the town of Buck in Edgar County, State of Illinois (subject to the life estate of my said wife, and other provisions of this will) to my four children, namely Irving Brown, Guy Brown, Cora E. Lacey and Ethel Welch, as follows:” A specific description of each of the respective tracts devised to each of said named children then follows.

It clearly appears from the will that the devises made in the third paragraph to the four children of the' testator of certain specific tracts and portions of the 240-acre farm are specific devises of said respective tracts of land and are no part of any residuary estate herein.

It also appears that the fund arising from the sale of the Redmon property was not primarily a part of the personal estate nor was the same equitably converted into personal property for the purpose of creating a fund out of which the testator's debts might be paid. The proceeds of the sale of such Redmon real estate was made a specific fund chargeable only with the payment of the specific legacy of appellant, less the amount of inheritance tax lawfully payable out of the same. It was therefore correctly held by the circuit court that the executor could not reduce the amount of such net proceeds and was accountable to appellant for said remainder.

Whether the testator intended to make the personal property primarily chargeable with the payment of the debts and that the remainder only pass into the specific fund from which appellant’s legacy became payable; or whether all of the proceeds of sale of personal property was intended to pass into said specific fund remains to be determined from the language of the will and all reasonable implications therefrom.

It is a cardinal rule of testamentary construction that the intention of the testator is to be ascertained and given effect from a consideration of the language of the entire will and all its parts, unless such intention is contrary to some rule of law or public policy. Dahmer v. Wensler, 350 Ill. 23, 182 N. E. 799; Spatz v. Paulus, 285 Ill. 82,120 N. E. 503; Meily v. Knox, 269 Ill. 463, 466, 110 N. E. 56; Miller v. Brinton, 294 Ill. 177,184,128 N. E. 370.

In all intestate estates the personal estate is primarily chargeable with the payment of debts and costs of administration before the real estate can be charged with or sold for the payment of any part thereof. This same rule applies in both intestate and testate estates, unless, in the latter case, a contrary intention appears from the will. Baker v. Baker, 319 Ill. 320, 150 N. E. 284.

This court, in the case of Showalter v. Showalter, 38 Ill. App. 208, quoted the following language from Heslop v. Gatton, 71 Ill. 528, wherein the Supreme Court held upon authorities therein cited that “when a person dies leaving a will, and personal and real property, debts and pecuniary legacies bequeathed by the will are to be paid from his personal property; and in case of a deficiency of personal property, the legacies must abate unless he charges his real estate with the payment. The charge upon the real estate may be made by the testator either by express direction to that effect contained in the will or the intention thus to charge may be implied from the whole will taken together.” Haynes v. McDonald, 252 Ill. 236, 96 N. E. 823.

The first paragraph of the will of Eli Brown expressly orders and directs “that my executor hereinafter named pay all my just debts and funeral expenses as soon after my decease as conveniently may be.” The second paragraph of the will gives all the real and personal property to his wife for and during the period of her natural life “subject to the provisions of paragraph one.”

It is clear that if the testator’s wife had survived him, she would have taken no personal property under the will until all of testator’s debts had been fully paid as ordered and directed in paragraph one of said will. Neither the subsequent death of the wife nor the express provisions of the codicil reaffirming these provisions in any way lessen or change such liability of the personal property for the payment of such indebtedness. No special trust fund was created out of any personal property by the express terms of the will itself, until after the debts were so paid in full.

In pursuance of this declared intention, the testator further provided in paragraph two of his will that after the termination of said life estate of his wife, the executor was directed to sell the Redmon property, “and all my personalty remaining at the death of my said wife,” was to become a part of the fund from which the executor is ordered to pay the legacy of appellant. That the testator was then under the impression that the fund so created would be sufficient to pay the legacy in question in full is further evidenced by the provision that “what money remains after the payment of said bequest” shall be applied in payment of any balance of a small mortgage indebtedness on the farm and “whatever remains after all my debts are paid, I desire to be divided equally by my four children, to whom I give my farm, share and share alike. ’ ’

Had the testator desired or intended to make any additional change or alteration in the terms of his will after the death of his wife, such intention would appear from the codicil in which the express provisions of the will were reaffirmed and republished. The intention to be sought in construing a will is not that which by inference may be presumed to have existed in the mind of the testator, but that which he has expressed in the will. Bond v. Moore, 236 Ill. 576, 86 N. E. 386; First Trust & Savings Bank v. Olson, 353 Ill. 206, 187 N. E. 282.

It is provided in paragraph three that the testator gives the 240-acre farm “ (subject to the life estate of my said wife and other provisions of this will) to my four children.” Such “other provisions” were properly construed by the trial court to have reference to the subsequent liens against the same to secure legacies in favor of the two missing sons and the $1,000 contribution to be made by Guy Brown toward the above mentioned fund, which latter was subsequently adeemed in the codicil. We hold that no other or further charges or liens against the farm land specifically devised to the children either appears by recital or by reasonable implication from the language of the will.

The personal estate was sufficient to pay the debts, and no part of the same went into the specific fund; hence the rule stated in Baker v. Baker, supra, requiring both specific legacies and specific devises to contribute ratably toward the payment of debts in case of a deficiency does not apply. Appellant expressly states in her reply brief that “we are not arguing that Katie Brackney’s legacy was a lien on real estate specifically devised to the children,” which concedes a correct statement of the rule of law applicable herein. Here, there was no residuary real estate against which the same might have become chargeable as a demonstrative legacy, and since the personal estate was exhausted in the payment of debts, there was no residuary personal estate “remaining” out of which the same might have been so paid, and said legacy of Katie Braclmey must therefore abate accordingly. Haynes v. McDonald, supra.

This court holds that a proper construction of the will shows the intention of the testator to have been that the debts be first paid out of the proceeds of sale of the personal property in accordance with the provisions of paragraph one; that the testator did not provide nor intend that such indebtedness should become a charge upon any real estate until the'personal estate was exhausted; that all of the real estate was either specifically devised to the four children or equitably converted into money for the creation of the special fund out of which appellant’s legacy became payable; and that no language appears in the context of the will or by reasonable implication therefrom which shows an intent to make the payment of ¿ppellant’s legacy a lien on any of the real estate specifically devised to the testator’s four children.

The circuit court did not err in ordering that the executor recast his account and make distribution in accordance with the terms of its order. No reversible error appearing in the record, the judgment of the circuit court of Edgar county will be affirmed.

Judgment affirmed.