author: Mr. Justice O’Connor

text:
    Beatrice Creamery Company, Appellee, v. Missouri Pacific Railroad Company, Appellant.
    Gen. No. 31,779.
    1. Carriers — right of one not holding hill of lading to recover damages from delay in carriage. Under the provision of the Carmack Amendment, section 20, paragraph K, of the Interstate Commerce Act, that the liability of a common carrier is “to the lawful holder” of a bill of lading, a plaintiff is not prevented from recovering damages from a railroad company for delay in transporting a. shipment because he does not produce the bill of lading, where the consignor surrendered the bill of lading to the carrier so that the purchaser, the plaintiff, could obtain the goods.
    2. Stipulations — discretion in refusing to strike. In an action for damages against a railroad company for delay in transporting a shipment, the court properly exercised its discretion in refusing to strike a written stipulation- entered into by counsel for both parties prior to the trial, and which tended to show that the car was not transported within the time provided by the schedule for trains, it not being contended that the stipulation did not state the facts correctly.
    3. Harmless and prejudicial errors — striking evidence of absence of negligence in action against carrier. In an action for damages against a railroad company for delay in transporting a shipment, it- was not materially prejudicial to the defendant for the court to strike out testimony of the witnesses that the derailment of cars might have been brought about by weather conditions, where the finding of the court that the defendant had not sustained the burden cast upon it to show the delay was not caused by its negligence was warranted by all the evidence. .
    4. Damages — delay by railroad in transporting shipment. In an action for damages against a railroad company for delay in transporting a carload of eggs, a finding of damages as the difference between the market price of eggs at the time the car should have arrived and the lower price at the time the car was delivered, with interest; was warranted by the evidence.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. James J. O’Toole, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed January 30, 1928.
    Rehearing denied February 11, 1928.
    John Gibson Hale, for appellant.
    George H. .White and Donald J. DeWolfe, for appellee; Hopkins, Starr & Hopkins, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On a trial in the municipal court of Chicago before the court without a jury there was a finding and judgment in plaintiff’s favor for $2,348.62 and the defendant appeals.

Plaintiff’s claim was for damages alleged to have been sustained by reason of the failure of the defendant to transport, within a reasonable time, a carload of eggs from Concordia, Kansas, to Chicago.

The record discloses" that on January 26,1921, W. M. Evert of Concordia, Kansas, delivered a carload of eggs to the defendant to be shipped by it to Pittsburgh, Pennsylvania. A bill of lading was issued by the defendant and given to Evert, who was named as consignor and consignee, with directions to the railroad company to notify the Beatrice Creamery Company of Pittsburgh. About the time the car reached Kansas City, Missouri, it was diverted by Evert to Chicago to be delivered to the Beatrice Creamery Company of Chicago. At the time the diversion order was given Evert surrendered the bill of lading to plaintiff and it does not appear whether a new bill of lading was issued. Evert was paid for the eggs by the plaintiff and the plaintiff also paid the freight for the transportation of the car to Chicago. It further appears from the record that the car of eggs was about 24 hours late in arriving at St. Louis, Missouri, and while the ear was en route from that place to Chicago, the car in question and two other cars were derailed at Decatur, Illinois, where there was a further delay of about 40 hours. The eggs were taken from the car at Decatur and placed in another car and they did not arrive in Chicago so as to be available to plaintiff until February 2nd. The evidence further shows that there was a sharp drop in the market and that the eggs were worth considerable less on the 2nd of February than they were on the 29th, 30th and 31st of January, and it is to recover the loss plaintiff claims it has sustained by reason of such delay that this suit was instituted.

The defendant contends that the judgment is wrong and should be reversed because plaintiff did not produce the bill of lading and that he therefore cannot recover because, it is said, that under the Carmack Amendment, section 20, paragraph K, Interstate Commerce Act, the liability of a carrier is “to the lawful holder” of the bill of lading. Paragraph “K” above mentioned provides that a common carrier, such as the defendant in the instant case, shall issue a bill of lading for goods delivered to it for transportation and that such common carrier “shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or any common carrier * * * to which such property may be delivered.” In the instant case the defendant issued its bill of lading for the car of eggs. Aftenvards the bill of lading was surrendered to the defendant by the consignor at Kansas City, and when surrendered the agent of the defendant at Concordia, Kansas, wired its agent at Chicago to deliver the car “To Beatrice Creamery Co. direct. I hold original bill of lading. Will mail to you.” And as stated, the eggs upon arrival at Chicago were delivered to the Beatrice Creamery Company, as directed by defendant’s agent, without the production of any bill of lading. It is obvious that it was not intended by the provision of the Federal Act, above quoted, to relieve a common carrier who was liable to the owner of merchandise merely because the owner of the goods surrendered the bill of lading to the carrier so as to obtain his property. It is equally obvious that the owner of the goods being transported by a common carrier, and to whom a bill of lading has been issued, must, in the ordinary course of business, surrender it before he can obtain the goods. And it is clear that the law never intended that if the bill of lading was surrendered so that the owner could obtain his goods, he could not recover against the carrier where it otherwise would have been liable to him. The bill of lading having been surrendered to the defendant and the goods having been delivered to plaintiff at the defendant’s request, no other person can have any claim for damages against defendant. It is protected because there is no bill of lading outstanding. There is no merit in the defendant’s contention.

Complaint is also made by the defendant that the court erred in refusing to strike a stipulation entered into by counsel for the parties some time prior to the actual beginning of the trial. The stipulation covered the movement of the car in question from Concordia, Kansas, to St. Louis, Missouri, and tended to show that it was not transported within the time as provided by the railroad schedule for trains. This stipulation was signed by counsel for plaintiff and the then counsel for the defendant. It ivas reduced to writing and filed in the case. Afterwards the present counsel for the defendant came into the case. There is no contention, so far as we are able to ascertain, that the stipulation did not state the facts as they were. We think the discretion of the court was properly exercised in refusing to strike the stipulation.

A further contention is made that the court erred in striking out the testimony of certain of its witnesses who testified, by deposition, concerning the derailment of the car in question at Decatur. The testimony of these witnesses was offered by the defendant as tending to show that there was no negli-' gence in the operation of the train, but that the derailment of the cars was brought about by weather conditions. We think the ruling of the court was not materially prejudical to the defendant. The conductor' was not called nor was any member of the train crew.' The witnesses that were called gave • testimony that the train parted on account óf the' rainy weathér and that they found no defect in the track nor Apparently with the cars except' that the couplers came apart. We have examined the testimony of these witnesses.' Ochiltree, the train master, testified "that the weather conditions might have contributed to the accident. He further testified that at the place of the wreck “There was no grade there and the track was absolutely straight.” The witness Young, who was.fore-. man of the wrecking crew, testified that in his opinion the wreck was caused by “weather conditions and the condition of the track * * * — the track there is around a curve and- its being slippery the engine might have slipped on the track.” Stumpf testified that he was superintendent of the Decatur division of the railroad company and that “The only contributory thing that he could assign in this particular case was the weather conditions and the fact that the train was rounding a curve.” We think the court aptly observed, during the reading of the deposition of one of these witnesses, “How does he (the witness) know that it wasn’t the sudden jerk of the engine starting and stopping, something like that,” that caused the accident? The burden being upon the defendant to show that the delay in the arrival of the car at Chicago was not brought about by its negligence, and it having failed to call any of the men who were in charge of the train at the time the car was derailed, and even considering only the testimony of the witnesses as it appears in the record, we are clearly of the opinion that we would not be warranted in disturbing the finding of the trial judge to the effect that the defendant had- not sustained the burden cast upon it. We are unable to say that the finding is against the manifest weight of the evidence, but on the' contrary we are of" the opinion that the evidence warrants the finding.

Plaintiff offered evidence to show that the market price of eggs was 65% cents a dozen at the time the car should have arrived and that the market price of eggs at the time the car was available on February 2nd was much lower, -and that this difference amounted to $1,846.82. On this sum the court allowed $501.80 interest, making a total of $2,348.62, the amount of the judgment. Upon a careful consideration of all the evidence in the record, we are of the opinion that the finding was warranted. It is certain that we would be unable to say that the finding on this question is against the manifest weight of the evidence. So far as we have been able to ascertain, no argument is made that the court was not warranted in allowing the interest item.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett, P. J., and McSurely, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    George Albert Hogan, by G. J. Hogan, Appellant, v. Chicago Lying In Hospital and Dispensary, Appellee.
    Gen. No. 32,010.
    1. Courts — decisions in own State as precedents. The decisions of the Illinois courts and not those of a sister State will be followed in determining whether a person who pays an adequate fee for services rendered by a purely charitable hospital can maintain an action against the hospital for damages for injuries caused by the hospital negligence.
    2. Asylums and hospitals — right of action for injuries by person paying adequate hospital fee. A person who pays an adequate fee for services rendered by a purely charitable hospital cannot maintain an action against the hospital for damages from injuries caused by the hospital negligence.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed January 30, 1928.
    Olds & LaRue, for appellant; Milford H. Olds and John F. Bellair, of counsel.
    H. L. Howard and William Greene, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, an infant, by his father and next friend brought suit against the defendant to recover damages alleged to have been sustained by him by reason of the defendant’s negligence. To the declaration the defendant filed three pleas, the séfeond of which set up as a defense that the defendant was incorporated under the laws of this State, as a corporation not for pecuniary profit; that the object for which it was formed was the establishment and maintenance of a hospital and dispensary and other works of charity; that all of its purposes were charitable purposes and not for pecuniary profit; that it had no capital stock and did not declare any dividends and at the time in question was maintaining a hospital and dispensary for charitable purposes. Plaintiff interposed a demurrer to this plea and it was overruled. He elected to stand by his demurrer and the suit was dismissed at his costs and this appeal followed.

The allegations of the declaration, so far as it is necessary to notice them here, are that on February 17, 1926, plaintiff’s mother was admitted to the hospital for confinement upon payment of an admission fee of $75; that plaintiff was born at the hospital on that date and five days later, when he was placed in a nursery room of the hospital where no one was allowed to be or appear except the agents and servants of the defendant, his feet were severely burned by reason of the fact that he was placed under a therapeutic lamp, and that his injuries were, caused by .the negligence of the defendant; that plaintiff’s mother was not a poor woman and did not seek charity, but on the contrary she was charged and paid for the ¿'services rendered $193.60 exclusive of doctor’s, fees, which was an adequate fee for the services rendered.

Counsel for plaintiff contend that “Where an institution organized for charitable purposes undertakes to assume a duty to an individual for an adequate money consideration, it should be held liable in damages for its neglect or default of said duty”; and that where an adequate fee is paid to such an institution for services, it ought to be held liable for the torts of its servants and agents, and that the rule announced by some authorities to the contrary is not logical or supported by reason. We have been favored with an exceptionally able and lucid brief filed by counsel for plaintiff and have carefully considered the many authorities there cited and the argument made. And while the precise point — whether a person who pays an adequate fee for services rendered by a charitable organization, such as the one in the instant case, can maintain an action against such charitable organization on account of the latter’s negligence — so far as we have been able to ascertain.has not been passed upon by the courts of this State, yet we are of the opinion that the effect of the decisions of our courts are that no recovery can be had in such case. Parks v. Northwestern University, 218 Ill. 381; Tollefson v. City of Ottawa, 129 Ill. App. 139, aff’d 228 Ill. 134; Johnston v. City of Chicago, 258 Ill. 494; Armstrong v. Wesley Hospital, 170 Ill. App. 81; Marabia v. Mary Thompson Hospital of Chicago, 224 Ill. App. 367; Curtis v. City of Paris, 234 Ill. App. 157.

In the instant case the averments of defendant’s plea which are admitted by the demurrer to be true are that the defendant is a corporation organized under the laws of this State, not for pecuniary profit ; that its purpose is the maintenance and establishment of a hospital and dispensary for charitable purposes and not for profit; that it was conducting such a hospital at the time plaintiff was injured, and that it has no capital stock and does not declare any dividends.

Counsel for plaintiff contend that the rule exempting a ■ charitable institution from liability for the torts committed by its agents or servants is found in McDonald v. Massachusetts General Hospital, 120 Mass. 432, which case relied upon the authority announced by the early English case of Holliday v. St. Leonard’s, 11 C. B. (N. S.) 192, and that the latter case had been overruled by the House of Lords in 1866 and again in 1870-1871, in the case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93, and Foreman v. Mayor of Canterbury, Q. B- L. R. 214; and that both of these cases were decided before the McDonald case, but that this fact was apparently not brought to the attention of the Massachusetts court. Whatever may be the reason for the rule, we feel that the decisions of the courts of this State above referred to must be followed in the instant case. .

In the Parks case, supra, a dental student attending the Northwestern University alleged that he lost an eye through the negligence of one of the professors employed by the university, and it ivas there held that he could not recover because it was the law that charitable institutions were exempted from liability for the negligence of their servants upon the ground that to do so would result in a diversion of the trust funds of the institutions. It was there pointed out that the university was created by a special charter and that it could hold property solely for the purpose of education and not for the benefit of individuals; that it must accept all persons that might apply to it. for education provided they met the educational requirements and were of good moral character. The court said (p. 383): “The appellant insists that the appel-' lee university is not a public charity, within the meaning of the rule that exempts such institutions from liability for the negligent acts of its servants, ’ and further: “These reasons for exemption apply as well to private as to public charitable corporations,” and-also said (p. 385): “That the appellee, though a private and not a public corporation, being a purely charitable institution, is not answerable for the negligent acts of its employees, is held but with little diversity of opinion.” Although the facts in the Parks case are not the same as those in the case before us, yet we are of the opinion that they are not distinguishable so far as the legal principle under consideration is involved.

In the Tollefson case it was held that a municipal corporation maintaining a hospital pursuant to its police power is not liable for injuries resulting from the negligence of its servants in conducting the hospital. In that case the court said (228 Ill. 136): “If the purpose be charitable, then the city is not liable for the negligent acts of its employees in the institution. (Parks v. Northwestern University, 218 Ill. 381.) ” And in the Johnston case (258 Ill. 494) the court used this language (p. 498): “A purely charitable corporation is by the weight of authority held not liable for the torts or neglect of its servants in the performance of their duties in carrying on the work of such corporation.” Citing Parks v. Northivestern University, supra. And in the late case of Curtis v. City of Paris, supra, the court, speaking by Mr. Justice Heard, now Chief. Justice of the Supreme Court of this State, held that a city was not liable for the negligence of its board of health in erecting a barrier across a street to establish a quiet zone for the benefit of a sick person. On page 161 of that case the following quotation appears: “A purely charitable corporation is by the weight of authority held not liable for the torts or neglect of its servants in the performance of their duties in carrying on the work of such corporation.” Citing a number of authorities.

In view of the authorities above ref erred, to in this State, we are of the opinion that the demurrer to the special plea of the defendant was properly overruled. It follows, therefore, that the judgment of the superior court of Cook comity must be affirmed.

Affirmed.

Hatchett, P. J., and HcSubely, J., concur.


text:
    Stephan Ivanhoe, Appellee, v. The Buda Company, Appellant.
    Gen. No. 32,071.
    1. Evidence — admissibility of army discharge to show health of soldier at later time. An army discharge stating that the health of the soldier was good at that date is inadmissible on an issue as to the condition of his health seven years later.
    2. Fraud and deceit — admissibility of records of decisions in regard to claim before industrial commission. In an action by a former employee against his employer for fraud and deceit in inducing him to refrain from' applying in proper time for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq., a notice of an award in his favor by an arbitrator of the industrial commission, and decisions of review in his favor by the industrial commission, are admissible in evidence only to the extent that they show a claim had been filed, the result thereof, -etc.; and an opinion of the Supreme Court that the claim had not been filed in time is inadmissible.
    3. Trial — propriety of reading statute to jury. In an action by a former employee against his employer for fraud and deceit in inducing him to refrain from applying in proper time for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq., it is error to read to the jury paragraph 8 of section 3 of the act, showing that the parties were operating thereunder, and section 6, abolishing the common-law right of action for the injury, although the jury may be told the material provisions of the law by proper instructions. ,
    4. Fraud and deceit — authority of representatives of defendant to malee statements as question for jury. In an action by a former employee against his employer for fraud and deceit in inducing him to refrain from applying in proper time for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., the authority of representatives of the defendant to bind it by their representations to the plaintiff ivas, under the evidence, a question for the jury.
    5. Former adjudication — court decision s'etting aside award under Workmen’s Compensation Act as bar to action for fraud. An action by a former employee against his employer for fraud and deceit in inducing him to refrain from applying in proper time for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq., was not barred by a decision of the Supreme Court setting aside an. award for plaintiff on the ground that the claim had not been filed in proper time.
    6. Discontinuance, dismissal and nonsuit — withdrawal of juror because of conduct of plaintiff in court. The discretion of the court was proxierly exercised in refusing to withdraw a juror during the trial of a cade concerning personal injuries because plaintiff, in the presence of the jury on two occasions, either feigned an attack of hysteria or had an uncontrollable twitching of the muscles with rolling of the eyes.
    7. Fraud and deceit — negligence of defrauded person. A person who is guilty of fraudulent conduct which induced another to act to his detriment will not bo allowed to impute negligence to the defrauded person.
    8. Evidence — necessity of expert evidence to show condition of person resulted from injury. A recovery of damages for disability resulting from an electric shock should be supxiorted by some expert evidence on the question whether the person’s condition resulted from the injury, where plaintiff began to have fits and fainting spells a considerable time qftor the injury.
    9. Damages — $7,500 as excessive in an action for fraud m connection with personal injuries. A verdict for $7,500 was not sustained in an action by a former employee against his employer for fraud and deceit in inducing him to refrain from applying in proper time for compensation under the Workmen’s Comx>ensa.tion Act, Cahill’s St. ch. 48, If 201 et seq., for injuries from an electric shock.
    Ax>peal by defendant from the Superior' Court of Cook county; the Hon. B. B. Fowler, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Reversed and remanded.
    Opinion filed January 30, 1928.
    Dent, Dobyns & Freeman, for appellant.
    Joseph A. Weber, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action to recover damages claimed to have resulted from the alleged fraud and deceit of the defendant. There was a verdict and judgment in his favor for $7,500 and the defendant appeals.

The record discloses that plaintiff was employed by the defendant at its factory located in Harvey, Illinois, and on January 5, 1917, while he was at work he received an electrical shock and was permanently injured. Plaintiff’s declarations alleged that he and the defendant were operating under the provisions of the Illinois Workmen’s Compensation Act, Cahill’s St. ch. 48, if 201 et seq., and that he was entitled to compensation under that act for the injuries received; that in March, 1917, he was paid by the defendant $51.20 as compensation for temporary disability and shortly thereafter returned to work for the defendant, but was unable to work continually, being ' afflicted with frequent fainting spells which, as time went on, increased in frequency and intensity until láter he became permanently disabled from doing any kind of physical work; that within six months of the date when he returned to work for the defendant he made numerous. requests of the defendant for compensation under the law; that the defendant, through its superintendent, frequently and for the purpose of inducing plaintiff to refrain from taking the necessary legal steps to obtain compensation, told him that it was not necessary for plaintiff to take any steps in the matter because the defendant had made application for him, that the proceedings were pending before the industrial commission and that it would advise him of the time and place of the hearing.

It was further alleged that on October 25, 1920, plaintiff having received none of the relief promised by the defendant, made inquiry of the industrial commission and then, learned for the first time that his claim had. not been received; that thereupon he filed his claim with the commission; that a hearing was had and an award made allowing him compensation for partial incapacity; that the award of the arbitrator was confirmed by the industrial commission and that afterwards he made a further application that he be allowed compensation for total disability; that there was a hearing on this question and he was allowed compensation for total disability; that the allowance was affirmed by the circuit court of Cook county and later the matter was taken to the Supreme Court of this State) where the award was set aside on the ground that plaintiff’s claim had not been filed within the time required by the statute. Further allegations of the declaration are to the effect that plaintiff relied upon statements frequently made by the defendant that his claim for compensation had been filed and for this reason he did not make claim within the time required by the statute. After the issue was made up the case was tried before the court and a jury with the result as above stated.

It further appears from the record that after the reversal of the award allowing him compensation by the industrial commission, by the Supreme Court, plaintiff filed a bill in chancery. This was afterwards transferred to the law side of the court and plaintiff then filed his declaration for fraud and deceit. Since there must be a reversal of the judgment, we will not discuss the evidence in detail, but it is sufficient to say that plaintiff offered evidence tending to sustain .the allegations of his declaration, while on the other hand, the defendant offered evidence to the effect that no misrepresentations had been made to plaintiff by the defendant.

In support of his case plaintiff,, over objections of the defendant, offered in evidence a written document showing that he had been honorably discharged from the United States Army on December 2, 1910. This was offered for the purpose of showing that plaintiff was in good health prior to the time he was injured on January 5, 1917. The document was received in evidence; it gives plaintiff’s age, occupation, the time when and place where he enlisted and the- services rendered by him in the United States Army; that he was honorably discharged and that his health was “good.” Under proper circumstances this document would be admissible in evidence (3 Wigmore on Evidence § 1675-A, 2nd Ed.), but we think it inadmissible in the instant case, even if it contained nothing except the statement as to defendant’s health at the time of his discharge, because it purported to show the state of plaintiff’s health on December 2, 1910, which was about seven years before plaintiff was injured. The fact that plaintiff was in good health on December 2, 1910, would be of no probative value as to the state of his health on January 5, 1917, the date he was injured. The document was inadmissible and prejudicial to the defendant and should have been excluded.

Plaintiff also offered in evidence a notice of the decision of the arbitrator issued by the industrial commission of Illinois on February 8, 1921, also a certified copy of the decision of the arbitrator dated January 28, 1921, a decision of review rendered by the industrial commission of Illinois, dated April 28, 1921, and a further' decision rendered by the same commission dated June 28, 1922. He also offered in evidence the decision of the Supreme. Court of this State, wherein that court held that, his claim, for compensation had not been fifed, within.they,time. provided by the Compensation Act, Cahill’s,. St. ch. 48, ¶ 201 et seq. (Buda Co. v. Industrial Commission, 306 Ill. 188.) He further offered certain sections of the Compensation Act of this State and read them to the jury, and a printed document containing the entire act was given to the jury when they retired to consider their verdict. All of these documents were received in evidence over objections, and we think all of them should have been excluded. Plaintiff testified that he had filed his claim with the industrial commission; that an arbitrator had made an award; that it had been approved by the industrial commission; that later he applied for an increase in compensation on the ground of total disability; that a hearing was had before the commission and an award made, and that the circuit court had confirmed the award. Further evidence was offered by the plaintiff that the award had been set aside by the Supreme Court, and the case seems to have been tried on the theory that there was no dispute as to these facts. The documents issued by the industrial commission above referred to ought not to have been given to the jury, because there were many recitations and findings that had no proper place in the trial of the case. The consideration of them by the jury could only have misled the jury and have been prejudicial to the defendant. Only so much of the records as would show that the claim had been filed, the result thereof, etc., would be proper evidence. Moreover, the Supreme Court in setting aside the award held that the industrial commission was without jurisdiction, and therefore the proceeding before the commission was without warrant of law and obviously the finding of the commission was not competent evidence of any fact. Nor was there'warrant in offering in evidence the opinion of the Supreme Court, which could have been of no assistance to the jury^especially when there was proof of the fact that plaintiff’s award had been set aside by that court. It was also error to read to the jury paragraph 8 of section 3 and section 6 of the Compensation Act, Cahill’s St. ch. 48, ft 202, subd. 8, and ft 206. Paragraph 8 simply tended to show that plaintiff and defendant on January 5, 1917, were both operating under the Compensation Act, and section 6 of that act, Cahill’s St. ch. 48, 1Í 206, abolished the common-law right of ■ action for such injuries as plaintiff claimed he had sustained. The law, should not have been read to the jury. They might have been told in proper instructions the material provisions of the law.

The defendant contends that there should have been an instructed verdict in its favor because plaintiff did not prove the essential elements of his declaration, and in support of this it is said: “The essential elements of an action on the case for fraud and deceit are that the defendant made representations that were false; that they were known by the defendant to be false and made to deceive the plaintiff; that the plaintiff believed the representations; that the plaintiff reasonably relied thereon and suffered damages as a result thereof.” The argument seems to be that the evidence fails to show that the defendant knew of the alleged false representations made by its representatives to plaintiff and, moreover, that the statements, even if made by the representatives of the defendant, as testified by plaintiff, were insufficient because the representatives had no authority to bind it by any statement that the defendant had filed plaintiff’s claim for compensation with the industrial commission. We think the contention cannot be sustained. Faber-Musser Co. v. William E. Dee Clay Mfg. Co., 291 Ill. 240. The question was for the jury. Plaintiff testified that Hermanson, who was defendant’s employment manager, told him that he would take care of the matter of plaintiff’s claim, and further that the defendant had done so. And there is further testimony by the plaintiff that he talked a number of times with Viles, the vice president, of the defendant, at its plant in Harvey and that' Viles promised to look after the matter for him.

Defendant further contends that recovery in the instant case is barred because the matter was adjudicated, as appears from the decision of the Supreme Court when it set aside plaintiff’s award. (Buda v. Industrial Commission, supra.) The argument seems to be that the same misrepresentations which plaintiff claims the defendant made to him could have been shown before the industrial commission at the time it heard his application for compensation. No argument is made that if it appeared to the industrial commission that the defendant had made the false representations complained of, this would obviate the provisions of the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., requiring plaintiff to file his claim within the time mentioned in the act. In this view of the case, we think the point is not properly before us. Moreover, as above stated, the Supreme Court held that the industrial commission was without jurisdiction.

A further point is made by the defendant that the court erred in overruling its motion to withdraw a juror during the trial and to continue the case because plaintiff in the presence of the jury on two occasions either feigned an attack of hysteria or had an uncontrollable twitching of the muscles, rolling of the eyes, etc., and this caused the jury to be prejudiced against the defendant. Matters of this kind must, to a large extent, be left to the discretion of the trial judge, and we do not think we would be warranted in saying that the discretion of the court was not properly exercised under the circumstances. Complaint is made of two instructions given at the request of plaintiff because, it is said, both of them directed a verdict for plaintiff and made no reference to the fact that plaintiff was required to use reasonable care to prevent himself from being defrauded. The objection made is untenable. The law is that where a party is guilty of fraudulent conduct which induced another party to act to his detriment, the guilty party will not be allowed to impute negligence to the latter. The party guilty of fraud can take no benefit of his own wrong. Leonard v. Springer, 197 Ill. 532; Carr v. Harnstrom, 207 Ill. App. 31. Moreover, the court gave at defendant’s request instructions Nos. 2, 3, 16 and 17, which contained no reference to the reasonable care to be exercised by the plaintiff to prevent himself from being defrauded.

Defendant further contends that the damages are not supported by the evidence for the reason that there is no medical testimony to the effect that plaintiff’s alleged disability resulted from the electric shock. While it has been held that where it appears from the evidence that the plaintiff, in a personal injury case, was in good health before he was injured but in bad health afterwards, this may be sufficient to submit the case to the jury as to whether the disabilities complained of resulted from the injuries received (Chicago Union Traction Co. v. May, 221 Ill. 530; Rehthaler v. Crane Co., 218 Ill. App. 267), yet we are of the opinion that in the instant case, where the evidence shows that a considerable period after plaintiff was injured he began to have fits and fainting spells, some expert evidence ought to be adduced on the question as to whether his condition resulted from the injury. Rose v. Chicago City Ry. Co., 207 Ill. App. 345.

We are further of the opinion that, under the evidence in the case, the amount of the verdict cannot be sustained. No proper instruction was offered or given on. this subject, but the instructions given on the question of damages seem to be the usual ones given in personal injury cases. As we said in the case of Carr v. Harnstrom, supra, which was an action for fraud and deceit (p. 35): “The real question in such a case is as to how much the plaintiff is actually out of pocket by reason of the transaction. (See Sigafus v. Porter, 179 U. S. 116.)”

For the reasons stated the judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and HcSurely, J,, concur.


author: Mr. Justice Jones

text:
    Maude M. Ely, Administratrix of the Estate of William R. Ely, Deceased, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 7,637.
    1. Insurance — necessity of showing waiver of nonpayment of premiums. In an action on a life insurance policy based on a presumption of the death of the insured after seven years’ absence there can be no recovery without proof that there was a valid waiver of nonpayment of premiums becoming due after the insured’s disappearance, no premiums having been paid after such disappearance.
    2. Insurance — forfeiture for nonpayment of premium. A forfeiture of a life insurance policy cannot be declared for nonpayment of a premium until the premium is over due.
    3. Election and waiver — necessity that a right exists. In order for facts to constitute a waiver, it is essential that, there be an existing right, benefit or advantage.
    4. Insurance — validity of waiver of payment of premium. An agreement of a life insurance company to waive the payment of premiums becoming due after the insured’s disappearance and for a period of seven years is invalid as in violation of Cahill’s St. eh. 73, If 353, which forbids discrimination.
    5. Evidence — presumption of continuance of marital relation. The relation of husband and wife will be presumed to have continued for seven years after his disappearance, in the absence of proof of his death at a particular time.
    6. Witness — competency of wife to testify in action on husband’s life insurance policy. In an action on a life insurance policy, based on a presumption of the death of the insured after seven years ’ absence, the wife of the insured is not competent to testify under Cahill’s St. ch. 51, Iflf 1 and 5, that an agent of the company told her shortly after his disappearance that she need not pay any more premiums, and that at the end of seven years it would be the duty of the company to produce the insured or to pay the amount of the policy.

      Appeal by defendant from the Circuit Court of Grundy county; the Hon. Edgar. B. Eldredgb, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed October 25, 1927.
    Rehearing denied February 6, 1928.
    Hoyne, O’Connor & Rubinkam, H. B. Smith and O. R. Middleton, for appellant.
    Everett Jennings and Jay Stough, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

' This is a suit on a policy of life insurance and the cause was before us on a former occasion when a judgment in favor of appellee was reversed and remanded. (Ely v. Prudential Ins. Co., 238 Ill. App. 638.) Upon a second trial in the circuit court, a jury returned a verdict in favor of appellee for $32,400. From a. judgment on the verdict this appeal is prosecuted.

The first count of the declaration avers that the insured died in Chicago, October 29, 1912. The second count avers the disappearance of the insured on that day and other facts necessary to raise a presumption of death within seven years. The pertinent facts appear in our former opinion. We held that there is in plaintiff’s evidence but little to raise a suspicion .of the insured’s death at the time of his disappearance on October 29, 1912, and much to rebut a presumption that he died on that date. Such statement is applicable to the facts in this record. The testimony does not fairly tend to support the averments of the first count of the declaration, therefore the judgment must be tested by the evidence admitted in support of the second count. There can be no recovery under that count, unless the proof establishes that there was a valid waiver of all premiums becoming due after the insured’s disappearance. (37 C. J. 484, § 215.) He paid the first year’s premium and the policy was delivered to him two days before his disappearance. Ho premium was thereafter paid. Appellee was his wife and on the trial was permitted to testify over objections that shortly after his disappearance an agent' of the appellant company told her she need not pay any more premiums, and that at the end of seven years it would be up to the company to either produce the insured or pay the amount of the policy. This testimony is relied on as constituting a waiver of payments of premiums to become due in the future. No question of waiver is raised under the first count, and such testimony, if competent, was admissible under the second count only.

At the close of all the evidence, separate motions were made by appellant to exclude all the evidence of appellee on the first count, and to instruct the jury to find for defendant on that count. The same motions were also made as- to the second count. Proper instructions were tendered with the motions, but the motions were each denied.

It is the contention of appellee that her testimony is competent and that the proofs are sufficient to establish a presumption of fact that her husband is dead; that he died on the day of his disappearance; that if such presumption obtains, her testimony is competent because it relates to a conversation which took place after her husband’s death, and that even if the proof is not sufficient to raise a presumption of death on the particular day mentioned, her testimony is nevertheless competent under sections 1 and 5 of chapter 51, Revised Statutes, Cahill’s St. ch. 51, ¶¶ 1 and 5.

Appellee contended on the former appeal, as well as on this one, that while as a general rule there is no presumption that death occurred at the time of disappearance or at any particular time during the seven years, still, there is evidence in the record sufficient to raise a presumption of fact that her husband died on the day of his disappearance. We reviewed the authorities as well as the testimony and decided the contention adversely to appellee. We concluded that the evidence was wholly insufficient to raise a presumption of fact that death occurred on the day of Dr. Ely’s disappearance. There is nothing in the record on this appeal or in the cases cited to cause us to change that ruling.

The only testimony in support of the alleged waiver was that of appellee. She testified that shortly after Dr, Ely’s disappearance she wrote to the home office of appellant in reference to the policy her,e involved, and received a reply acknowledging receipt of her letter, and stating they were sending a representative in regard to the policy; that three or four weeks later a representative of the company called on her and at that time made the statements which are the sole basis of the alleged waiver. She does not claim that there was any subsequent statement or declaration on the part of appellant.

No premium other than the first one having been paid, appellant insists that the policy lapsed according to its terms at the end of the grace period succeeding the due-date of the second premium; that there was no waiver or attempted waiver of the payment of future premiums; and that if there had been such an attempt, it was ineffective because of the statute and the public policy of this State.

At the time of the alleged waiver, appellant had no existing right to declare a forfeiture for nonpayment of a premium as no premium was past due. It is well settled that ari insurance company is estopped to insist upon a forfeiture of a policy, if the acts of estoppel or waiver take place after the cause of forfeiture arises. (Bennett v. Union Cent. Life Ins. Co., 203 Ill. 439.) No case has been cited which holds that an insurance company can waive a cause of forfeiture before the happening of such cause. To constitute a waiver, it is essential that there be an existing right, benefit or advantage. (27 E. C. L. 908, Waiver, § 5.) For an acceptance of rent to constitute a waiver, it is necessary that at the time of such acceptance there shall have been such a breach of the covenant or condition as will give the lessor a present right to enforce the forfeiture. The receipt of rent will not operate as a waiver of a cause of forfeiture thereafter arising. (16 R. C. L. 1133, Landlord and Tenant, § 654.) The general rule seems to be that attempted waivers of future causes of forfeiture are invalid. No reason is apparent why the doctrine should not be applied to life insurance contracts.

The substance of appellee’s version of the alleged waiver is that the company agreed to waive the payment of all future premiums, even though Dr. Ely were not dead. To sustain the contention of appellee would be to ignore paragraph 353, chapter 73, Revised Statutes, Cahill’s St. ch. 73, ft 353, which provides that no life insurance company shall make or permit any distinction or discrimination between insurants of the same class and equal expectation of life; nor in charging, collecting, demanding or receiving of the amount of premiums; nor in the terms and conditions of the contract between the company and the insurants. To permit an insurance company to waive the payment of premiums as they become due in the future, would open the door to favoritism and discrimination, and its application without limitation would tend to destroy the uniformity established by the statute. Our insurance statutes declare a principle of public policy regulating all life insurance and endeavoring to put that business on a sound financial basis. (Keller v. North American Life Ins. Co., 301 Ill. 198.) It is undeniable that a party may waive the advantage of a statute intended for his sole benefit, but there are grave reasons why a law enacted from public considerations should not be abrogated by mere private agreement. (Phelps v. Phelps, 72 Ill. 545.) It is said in Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252, “A valid excuse for not paying promptly on the particular day, is a different thing from an excuse for not paying at all. ’ ’ For these reasons we think the alleged agreement was not sufficient to constitute a valid waiver.

But even if it is not against public policy and the declared law of this State, and even if it is not insufficient to constitute a waiver because it relates to a nonexisting right, still, we come squarely up to the question as to whether the agreement has been shown by any competent proof. No attempt was made to establish it except by the testimony of appellee. She was the wife of the insured and that relation, in the absence of proof of his death at a particular time, is presumed to have existed for a full period of seven years after the time of his disappearance. It therefore existed at the time of the alleged waiver and the competency of appellee as a witness must be tested by the rules of evidence as applied to husband and wife. At common law the rule was that a husband and wife could not testify for or against each other in any legal proceeding in which the other was a party, or which involved the other’s' pecuniary interest. This was because husband and wife were one, and as no one could testify for or against himself, neither, the husband nor wife could testify for or against the other, and as a matter of public policy, it was considered that it would endanger the harmony and confidence of the marriage relation to permit one to testify against the other. This rule was subject only to certain, exceptions. They could testify against each other in a prosecution of one for a criminal injury to the other. Dying declarations, of one, who has been wounded by the other, were admissible. Declarations of one, while acting as the agent of the other, were also admissible and in trials for treason, one was. compelled to testify against the other. (Am. & Eng. Ency. of Law, vol. 9, p. 806.)

The common-law rule has been modified in some particulars by statutes. In Illinois the chief modification is found in section 5 of the act on Evidence and Depositions, Cahill’s St. ch. 51, ¶ 5. It is there provided that no husband or wife shall be competent to. testify for or against each other as to any transaction or conversation occurring during the marriage. In the instant case the testimony of appellee related to a conversation between her and a third party concerning the pecuniary interests of her husband. The conversation was had while her husband was presumed to be alive. Said section 5 contains certain exceptions, but none of them are broad enough to include such a conversation as the one now involved. Under one of the exceptions it seems that a husband and wife are competent to give testimony where the other is a party in actions upon policies of insurance of property. It will be seen that this exception is .expressly limited to suits involving property insurance and does not extend to those involving life insurance. It will also be observed that even in cases of property insurance the husband and wife can give testimony only regarding the value of the property injured or destroyed.

It was held in Schreffler v. Chase, 245 Ill. 395, that the provisions of sections 1 and 5 of the Evidence Act, Cahill’s St. ch. 51, ¶¶ 1 and 5, do not render the husband and wife competent witnesses, except in the cases enumerated in the exceptions found in section 5, and that the inhibition against their testimony extends to conversations not only between the husband and wife, but between either of them and a third person. Under the rule so announced, the appellee was not a competent witness to prove the alleged waiver; and with her evidence excluded, there is a complete. absence of testimony tending to show that the defendant company waived the payments of premiums which became due and payable under the policy during the seven years immediately following the disappearance of Dr. Ely. We are therefore of the opinion that there is no competent proof in the record tending to establish a waiver of snclr payments.

In view of the position we have taken with respect to the insufficiency of proofs in this case, it is unnecessary for us to comment upon the instructions complained of by appellant. It is enough tb say that we find no serious error in them.

The judgment of the circuit court is reversed and remanded.

Reversed and remanded. •


text:
    Lorenzo Moscarelli, Administrator of the Estate of Nick Migliori, Deceased, Appellee, v. Fannie P. Sheldon, Appellant.
    Gen. No. 7,772.
    1. Evidence — photographs of scene of accident. Photographs of the scene of an accident where a laborer in a ditch was killed by an automobile were admissible in evidence although taken on the following day, where there had been very little, if any change, in the physical conditions between the time of the accident and the time the photographs were taken, and the pictures were substantially a true representation of conditions as they existed at the time of the accident.
    2. Motor, vehicles — instruction to he read as a whole. In an action against an automobilist who ran over a laborer in a street ditch, a statement in an instruction that if the deceased “was then and there, and immediately prior thereto, in the exercise of due care for his own safety,” etc., is not objectionable in that the quoted words do not state at what time and place deceased should have exercised due care, and that the words “then,” “there,” and “immediately prior thereto” are not connected with the time and place of the accident, where the instruction is not susceptible of such interpretation when read as a whole.
    3. Workmen’s Compensation Act — common-law action of employee against third person. The personal representative of a city laborer has the right, regardless of the Workmen’s Compensation Act, Cahill’s St. eh. 48, ¶ 201 et seq., to prosecute his common-law action against one causing the death of the decedent, where the defendant is not under the statute.

      4. Workmen’s Compensation Act — negligence of employer as defense to employee’s action against third person. In a common-law negligence action by the personal representative of a city laborer against an automobilist causing his death, negligence of the city in not protecting the employee is not available to the defendant as a defense by virtue of the Workmen’s Compensation Act, Cahill’s St. eh. 48, If229, the defendant not being under the statute.
    5. Workmen’s Compensation Act — admissibility of evidence in action against third party of compensation received by employee. In a common-law negligence action by the personal representative of a city laborer against an automobilist causing his death, evidence was inadmissible as to the amount of compensation which had been paid by the city under the Workmen’s Compensation Act, Cahill’s St. eh. 48, 1f 201 et seq.

    6. Highways and streets — negligence of city as defense for negligent automobilist injuring city laborer. Where the negligence of an automobilist is the proximate cause of the death of a city laborer exercising due care while working in a street ditch, it is no defense that the city was negligent in not barricading the ditch and in not giving some warning of its existence.
    Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Edward D. Shurtleff, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 25, 1927.
    Rehearing denied February 6, 1928.
    Lathrop, Lathrop & Brown, for appellant; John A. Bloomingston, of counsel.
    Hall & Dusker, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Appellee, Lorenzo Mosearelli, administrator of the estate of Nick Migliori, deceased, obtained a judgment for $10,000 against appellant, Fannie P. Sheldon, in the circuit court of Winnebago county for the death of appellee’s intestate, and an appeal has been prosecuted to this court.

National avenue in the city of Rockford extends north and south, is 28 feet wide and has a macadam pavement with a tarvia binder or top. On the morning of April 23, 1925, three workmen employed by the city, including Migliori, started to dig a hole in the center of this street. At the time of the accident the hole was about 6% feet long north and south, 2 feet 8 inches wide east and west and about 2 feet deep. The dirt which was taken out of the excavation was thrown on all sides of it, except to the east, there being a clear space of almost 14 feet from the east side of the opening to the east curb of the street. The dirt on the west side of the excavation was in a pile, about 10 feet long, 1% feet high and 5 feet wide. On the north side, it was 5 feet long, 3% feet wide and 1 foot high. Just before the accident all of the men left the job, except Migliori who remained at work. About 2:30 o’clock p. m. appellant drove a Packard automobile north on this street at the rate of about 20 miles per hour. When she got in front of the Atwood house which was being erected on the east side of the street about 150 feet south of the excavation, her attention was attracted to that building. When she next looked north in the street she saw the black hair of a man who was working in the ditch. The automobile straddled the ditch, went 12 or 15 feet before it was stopped, struck Migliori and he received injuries from which he died.

The declaration charged general negligence. Appellant filed the general issue and a special plea alleging that the deceased and the city were subject to the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq.; that appellant was not under the act ; that the death was caused proximately by the negligence of the city in not barricading the excavation or giving some notice or warning that the street was being excavated, and as a consequence of such failure, appellant had no warning or notice of such excavation, or that the deceased was working therein. A demurrer was sustained to this plea, and appellant filed an amended special plea which was substantially the same as the original. A demurrer was likewise sustained to the amended plea. Appellant asked the court to submit to the jury a special interrogatory whether the death was proximately caused by the negligence of the city, but the court refused to submit it.

There was admitted in evidence four photographs of the scene of the accident taken at 10 o’clock the next morning after the accident. Appellant objected on the grounds that there was no evidence to show the location of the camera at the time the pictures were taken and that they were not properly identified. We think there is no merit in this contention. The evidence shows that there had been very little, if any, change in the physical conditions between the time of the accident and the time the pictures were taken; and that the pictures were substantially a true representation of conditions as they existed at the time of the accident. The preliminary proof complied with the rule as laid down in Stevens v. Illinois Cent. R. Co., 306 Ill. 370, and Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89. If there was any change in the conditions, it was in the amount of the dirt on the sides of the excavation. However, the dirt was measured a few minutes after the accident and the amount of it was not in serious dispute.

The second instruction on behalf of appellee relates to the duty of appellant to reasonably use her faculties to avoid injury to the deceased at the time and place of the accident. It states that if the deceased “was then and there, and immediately prior thereto, in the exercise of due care for his own safety,” etc. The objection is that the words quoted do not state at what time and place deceased should have exercised due care; that the word “then” and the word “there” and the words “immediately prior thereto” are not connected with the time and place of the accident and immediately prior thereto. When this instruction is read as a whole, it is not susceptible of the interpretation sought to be placed upon it. The words “then” and “there” refer to the time and place last specified which in this case was the time and place of the accident. (Vogrin v. American Steel & Wire Co., 263 Ill. 474.)

The sixth refused instruction relates to the burden of proof and was fully covered by the fifth and seventh given instructions. The substance of the seventh refused instruction was fully covered by the third, sixth and seventh given instructions. Appellant’s second, third, fourth and fifth refused instructions were tendered upon the theory that negligence on the part of the city constitutes a defense which should have been submitted to the jury under section 29 of the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 229. The court’s refusal of these instructions, its refusal to submit to the jury the special interrogatory, and its action in sustaining the demurrer to the amended special plea are assigned as errors and will be considered together. Section 29 of the Compensation Act has two divisions. The first applies to cases where all of the parties are under the act. The second relates to cases where some of the parties are under the act, and where a third party not under the act has been guilty of negligence. In O’Brien v. Chicago City R. Co., 305 Ill. 244, the Supreme Court construed the said section contrary to the contention of appellant. It held that the common-law right of action of an employee against any person other than his employer, where such other person was not bound by the Compensation Act, is not affected-by the act; that his right of action is preserved in full force and effect; that the employer, who is free from negligence, is entitled to be indemnified from the proceeds of such cause of action for such compensation as he is bound to pay; that the cause of action may be prosecuted in the name of either the employer or the employee for the benefit of both, in accordance with their respective rights; and that the injured employee is not put to an election between compensation under the statute and damages at common law, but may prosecute both remedies at the same time. Under this authority appellee had the right to prosecute his common-law action against appellant regardless of the Compensation Act, therefore the demurrer to the amended special plea was properly sustained, and the special interrogatory as well as the second, third, fourth and fifth instructions offered by appellant were properly refused. No error was committed in refusing to admit evidence as to the amount of compensation which had been paid by the city.

Appellant claims that the city was negligent in not barricading the excavation and in not giving some warning of -its existence. If the preponderance of the evidence showed that appellant was guilty of the negligence as alleged in the declaration; that such negligence was the proximate cause of the death, and that the deceased was in the exercise of due care, then appellant was liable regardless of the negligence of the city. ■

Objections were sustained to questions put to the city engineer and another witness relative to alleged declarations of the city engineer about flags having been bought by the city for use in protecting excavations of this kind. Both witnesses had been called by appellee and the questions asked were not proper on cross-examination.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Boggs

text:
    Frank B. Brown, Appellee, v. Mary Hamsmith and Earle W. Brown, Administrators of the Estate of James P. Brown, Deceased, et al., Appellants.
    Gen. No. 7,729.
    1. Judgments and decrees — sufficiency of evidence for entry nunc pro tuno at subsequent term. A docket entry by a court reciting an order “that a decree be and the same is hereby granted” is not a sufficient minute or memorial paper of record to give the court jurisdiction to order the filing of a decree nunc pro tunc at a subsequent term.
    2. Judgments and decrees — right to enter nunc pro tunc at subsequent term. A court has no right to enter a judgment nunc pro tunc at a subsequent term unless the judgment was in fact rendered at the previous term and was not entered of record through some fault, neglect or oversight. ' »
    3. Judgments and decrees — necessity of minutes for entry nunc pro tunc at subsequent term. The fact that a court gave judgment at a previous term, or the basis for the entry of a judgment nunc pro tuna at a subsequent term, can be proved only by some minute or memorial-paper in the case made at the previous term.
    4. Judgments and decrees — settling of decree at subsequent term. The settling of a decree is a. judicial act and cannot be performed by a judge in vacation or at a subsequent term.
    5. Appeal and error — appeal bond recital not operating as estoppel to question decree. An appellant, having directly attacked a purported decree for lack of jurisdiction of the court to enter it nunc pro tunc at a subsequent term, is not estopped to question the validity of the decree because of the- recital in the appeal bond that a decree was obtained.
    '6. Abatement and revival — pendency of another suit in court of different jurisdiction. The pendency of a petition to the county court by the administrators of the estate of a mortgagee for a citation under the Administration Act, sections 81 and 82, Cahill’s St. ch. 3, ¶¶ 82 and 83, to require the holder of notes and mortgages to account for the same to the estate, is not a bar to a subsequent bill in equity by the holder, claiming the notes and mortgages as a gift, to require the administrators to release the mortgages as a cloud on title, although the amendment in 1925 of the Administration Act, section 81, Cahill’s St. ch. 3, ¶ 82, subsequent to the filing of the petition for the citation, gave the county court power to adjudge controverted questions of title.
    7. Courts — concurrent jurisdiction. Where a court of equity has concurrent jurisdiction with a court of law, the court which first acquires jurisdiction must hold and exercise it until the litigation is ended.

      8. Quieting title — equitable nature of proceeding. A bill in equity by one claiming mortgages as a gift to require the administrators of the deceased mortgagee to release the mortgages as being a cloud on title is proper, as such relief is not offered by courts of law.
    9. Quieting title — unreleased mortgages as cloud on title. Where a father makes a gift of notes and mortgages to- a son, the mortgagor, but does not, because of feeble health, carry into effect his intention to release the mortgages, the son is entitled to a decree on a bill in equity to require the administrators of the father’s estate to release the mortgages as being a cloud on title.
    10. Gifts — unindorsed note. An unindorsed promissory note is a subject of gift.
    11. Gifts — delivery of notes and mortgages by father to son. The delivery by a father of notes and mortages to a son, who had executed the documents, with the statement that they were turned over to the son so that the son would have the property clear and be out of debt was a valid gift.
    12. Appeal and error — leave to answer and take testimony after remand. Where a court rules that defendants’ plea does not bar the suit and decrees relief upon defaulting the defendants for not filing an answer mstanter, upon reversing the decree because of error in entering it nunc pro tunc, the cause was remanded with directions to let the defendants answer the bill and take evidence, it not appearing that defendants had an opportunity to answer after their plea had been held to be insufficient.
    Appeal by defendants from the Circuit Court of Boone county; the Hon. Edward D. Shurtleff, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 28, 1927.
    Petition for rehearing withdrawn.
    Thomas M. Cliffs and G. E. Stott, for appellants.
    William L. Pierce and Alexander J. Strom, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellee filed a bill in the circuit court of Boone county against appellants, setting forth that he was the owner and in possession of certain real estate located in the town of Belvidere; that he acquired title thereto by warranty deed on February 20, 1912, and that on said date he, with his wife joining him, executed, acknowledged and delivered to his father, one James P. Brown, a mortgage securing a note in the sum of $4,600 due five years after date; that thereafter on March 2, 1914, appellee, with his wife joining him, executed, acknowledged and delivered to his said father another mortgage on said premises, securing two promissory notes of even date therewith for the principal sum of $3,000 each, given by said mortgagors to said mortgagee; that thereafter, on the 4th day of November, 1923, the said James P. Brown departed this life intestate, and that appellants Mary C. Ham-smith and Earle W. Brown were by the county court of said county appointed administrators of the estate of said deceased.

It is further averred in said bill that, prior to the death of the said James P. Brown, he delivered to appellee said notes and mortgages, stating at the time of said delivery, “Now, Frank, here are the mortgages and notes on your barn in Belvidere I have decided to turn them over to you now so that you will have your barn clear and you will be out of debt”; that complainant came into possession of said notes and mortgages at that time, and retained the same until after the death of his said father; that the said James P. Brown departed this life as above set forth, without having released said mortgages, and that complainant thereafter requested said administrators to release the same tendering proper releases therefor to be executed by them, with the necessary funds to cover the expenses incident thereto, and that said administrators had failed and refused to execute the same.

Said bill further averred that the complainant “is ready, willing and able to pay said administrators any sum or sums of money that may be adjudged by this Honorable Court to be due or payable from him to the estate of James P. Brown, deceased, and he tenders his willingness, readiness and ability to pay over or to amply secure payment of any sum or sums of money that this Honorable Court may ascertain, if any, and determine that your orator owes to said estate or to the said administrators representing said estate.”

Said bill avers that said mortgages constituted a cloud on his title, and prays that said administrators be ordered to execute proper releases of said mortgages, and that in default thereof a commissioner be appointed to execute the same.

To said bill of complaint, appellants Carrie R. Reed and James L. Brown, daughter and son of said deceased, filed answers, denying the material allegations of said bill. Appellants Mary Hamsmith and Earle W. Brown, administrators of said estate, filed a plea setting forth that Mary Hamsmith as such administrator had filed a petition for citation against appellee in the county court of DeKalb county on the probate side, under sections 81 and 82 of the Administration Act, Cahill’s St. ch. 3, ¶¶ 82 and 83, and charging in said petition for citation “that the complainant in the above entitled cause, Frank B. Brown, had in his possession the notes and mortgages described in the bill of complaint therein, claiming the same by an alleged gift from the deceased, “ * * that she is informed and believes that Frank B. Brown, one of the heirs of said estate, has in his possession or has concealed goods, chattels, moneys, effects, * * * belonging to said deceased in his lifetime * * *; and that said Frank B. Brown refuses to give to said administrators such knowledge or information, or to account for property of said deceased in his possession or control,” praying that appellee be cited into court, examined under oath, etc., and that the court “may make such order in the premises as the case may require.” It is further averred in said plea that appellee came into court “and submitted himself in person to the jurisdiction of said court and was sworn and examined under said citation as to the ownership of said notes and mortgages described in said bill of complaint, and the proceedings by way of citation and this said action is still pending and undetermined in the county court of DeKalb county. ’ ’ ‘

A replication was filed to the answer of appellants Carrie R. Reed and James L. Brown and it was ordered that the hearing on said plea be set for Saturday, November 28, 1925.

Said cause was subsequently reallotted for December 19, 1925, June 19, 1926, and July 24, 1926. It is conceded that no action was taken on July 24, 1926, and that there was no court on that day, and that on July 29 the following entry was made by the court, “that all defendants be and they are hereby ruled to answer instanter. It is further ordered that defendants not heretofore defaulted, being Mary Hamsmith and Earle W. Brown, are now held in default, and the court after hearing all the evidence orders that a decree be and the same is hereby granted.”

It is conceded and the record discloses that on September 27,1926, the presiding judge signed the following order: “The above and foregoing decree is hereby ordered and directed to be entered and filed, nunc pro tunc as of the 29th day of July, 1926; and the clerk of this court' is ordered and directed to so file the same, and thereupon said decree is to have the same force and effect and full force and validity as of the date of filing thereof.” . ,

An order appears, following the last-mentioned order, granting to the defendants in said proceeding, jointly or severally, an appeal to the Appellate Court “upon filing their bond in the penal sum of $200 with sureties to be approved by the clerk of this court within 30 days from the date of this order, and 60 days time allowed to file a certificate of evidence.”

An appeal bond was filed by appellants Mary Hamsmith, Earle W. Brown, James L. Brown and Thomas M. Clift, on August 18, 1926. The record discloses that the certificate of evidence was filed on September 9, 1926. The decree as filed held that the plea of former suit pending was not a bar to the relief prayed in said bill, and found in detail the facts averred in said bill, and that the said James P. Brown, father of appellee, had delivered to appellee said notes and mortgages in his lifetime as a gift to him as averred in said bill, granted the relief prayed for in said bill, and ordered that said administrators release said mortgages of record.

It is first contended by counsel for appellants for a reversal. of said cause that the court was without jurisdiction on September 27,1926, being the first day of the September term of the Boone county circuit, to enter an order directing the clerk to file the purported decree appearing in said record nunc pro tunc as of July 29, 1926, one of the days of the April term of said court, for the reason that there was no sufficient memorial paper or docket entry in the record or files of said court on which to base the findings and decretal order therein appearing.

The record discloses and it is conceded that the only docket entry made by the court on July 29 was the following: “It is ordered by the court that all defendants be and the same are hereby ruled to answer instanter. It is further ordered that defendants not heretofore defaulted, being Mary Hamsmith and Earle W. Brown, are now held in default, and the court after hearing all the evidence orders that a decree be and the same is hereby granted,” and that the decree in fact was not filed until September 27,1926. This being conceded to be the state of the record, we are of the opinion and hold that the court was without jurisdiction to enter the decree in question and to order the same filed nunc pro tunc as of July 29, 1926.

It is well settled that a court has no right to enter a judgment nunc pro tunc at a subsequent term, unless the judgment was in fact rendered at the previous term, and was not entered of record through some fault, neglect or oversight; and in such case the fact that the court did give judgment at the previous term can only be proved by some memorial paper or minute in the case made at such former term. Chicago, B. & Q. R. Co. v. Wingler, 165 Ill. 634-635; Dougherty v. People, 118 Ill. 160-164; Tynan v. Weinhard, 153 Ill. 598-606; Stein v. Meyers, 253 Ill. 199-205.

The judgments and decrees of courts cannot rest in parol or upon so uncertain a foundation as the personal recollections of the judge or any other person, and the fact that a judgment was rendered at a former term cannot be determined from the memory of the witnesses or the personal recollections of the judge himself. Where there is no minute or memorial paper in the records of the court to show that judgment was in fact pronounced, it cannot be so entered. Chicago, B. & Q. R. Co. v. Wingler, supra, 635, citing Coughran v. Gutcheus, 18 Ill. 390; Dougherty v. People, supra; Ayer v. City of Chicago, 149 Ill. 262; Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607; Tynan v. Weinhard, supra.

In Cameron v. Clinton, 259 Ill. 599, the court in discussing a question of this character at page 603 says: “ ‘Where there is no minute or memorial paper in the records of the court to show that judgment was, in fact, pronounced, it cannot be so entered.’ Paragraph 65 of chapter 67 of Hurd’s Statutes of 1911 authorizes a judge of the circuit court or superior court of Cook county to enter a judgment or decree in vacation when the' cause is taken under advisement and decided in vacation, and paragraph 66 provides that if it is stipulated of record that a judgment or decree so entered of record (i. e., in vacation,) shall be final, such judgment or decree shall have the same force and effect as if it had been entered at the term preceding, subject to the right of appeal or writ of error.

“Defendants in error make no denial that the decree was, in fact, not entered of record until August 2, but insist that as it is entitled as of the April term it would be, in effect, impeaching the record to say it was not entered at that term. With this we cannot agree. As we view it, the record shows the decree was not entered until August 2, which was long after the adjournment of the April term, at which the cause was heard. The decree contains no order for a certificate of evidence or for an appeal, and we cannot give our approval to a practice that would be so prejudicial to a defeated litigant.” Hughs v. Washington, 65 Ill. 245-249; Moore v. Shook, 276 Ill. 47-52.

The settling of a decree is a judicial act, and one that cannot be performed by a judge in vacation, or at a subsequent term. Bruce v. Doolittle, 81 Ill. 103-108; Cameron v. Clinton, 259 Ill. 599; Blair v. Reading, 99 Ill. 600-609.

This court in Augustine v. Doud, 1 Ill. App. 588, in passing on a question of this character at page 594 says:

“It has not escaped our observation that appellee denies the right of appeal from the decree in this case, rendered at the March term, because.it was not allowed until the following November. The appeal, it should be borne in mind, was prayed at the March term when the decree purports to have been rendered. Though it is said and not denied, that the reason no action was taken upon the prayer arose from the fact that the decree was not rendered at that term, but was after-wards signed in vacation. If such was actually the case it would have been a good reason for setting it aside. For we are not aware of any authority in the Circuit Judge to sign a decree in vacation, unless where the case is taken under advisement, according to sec. 47-332 of the revised laws of 1874, or by consent of the parties to the suit, including those in default as well as all others. The position assumed that the court after a case has been decided may direct the attorney to draw up a decree, and that it can be signed in vacation by the judge, while those objecting to the decision cannot appeal at that term because there is no decree to appeal from, and that any appeal taken from the decree rendered in vacation at a subsequent term would be of no avail, is not only a singular but an anomalous one. The court, it is said, declared the ground of its decision; the defendants prayed an appeal, but the court refused to allow it because there was no decree to appeal from. A decree was prepared and signed by the judge in vacation when there was no power to grant the prayer except by consent; then if it was too late at the next term to allow it, the right of appeal was entirely lost. This would be a construction of the law calculated to abridge one of the most important rights secured to every suitor.” The order entered on July 29, “that a decree be and the same is hereby granted,” is wholly insufficient as a minute or memorial on which to base a decree. There is nothing to show in whose favor the decree is granted, what its findings are to be, or what the decretal order should be.

Counsel for appellee insist that appellants are in effect estopped to raise this question by virtue of the appeal bond filed by them on August 18,1926, in which bond it is recited that appellee obtained a decree against “the above bounden Mary Hamsmith and Earle W. Brown in a suit in chancery to quiet title.” In. support of this contention, counsel cite certain cases, holding that the principal and sureties on an appeal bond are estopped to raise the question that a valid judgment was not entered, in a suit at law to recover-on the bond. Those cases do not reach this' situation. In those cases suit was on the appeal bond, and the attack on the judgment was a collateral one, which the obligees on the bond could not make. No authorities were cited, and we are convinced none can be found, holding that in a direct attack on a purported judgment or decree, an appellant would be estopped to question the validity of such judgment or decree, by reason of having entered into an appeal bond.

In Bruce v. Doolittle, 81 Ill. 103, the court in passing on the right to appeal from a judgment which the court entered without authority, on page 108 says: “Upon a careful examination of the evidence, we are satisfied that the facts found by the court were fully authorized by the testimony, and that order entered was proper. But after the court had heard the evidence, the court adjourned for the term, and the judgment of the court was entered in vacation. Appellant was not present nor did he consent.

“The rendition of the judgment in vacation was error, for which the judgment must be reversed and the cause remanded. The court is, however, directed to enter the judgment when court again convenes. ’ ’

“Judgments entered without jurisdiction are void, and will be so held in a collateral proceeding. ’ ’ Ayer v. City of Chicago, 149 Ill. 262-269, citing 12 Am. & Eng. Ency. of Law, p. 1470.

For the reasons above stated, the cause will have to be reversed and remanded, in order that the court may enter a proper decree, as the court was without authority to order the filing of the decree in question nunc pro tunc as of July 29, 1926. There are other questions arising on the record which we feel should be passed on in reversing the cause.

It is seriously contended by counsel for said administrators that the court erred in not setting down their plea for argument as to its sufficiency. While under the practice in this State, pleas of this character should be set down for argument as to their sufficiency, at the same time we are of the opinion and hold that the fact that the same was not so set down for argument prior to the hearing on said cause was not prejudicial to appellants, said administrators, for we are of the opinion and hold that said plea, setting forth said proceedings in the county court of DeKalh county, was not a bar to the relief sought under the bill in this case.

Prior to the amendment to section 81 of the Administration Act, Cahill’s St. ch. 3, ¶ 82, which went into effect July 1, 1925, the courts have held that the county court was without jurisdiction to adjudicate the title'to property involved. Moore v. Brandenburg, 248 Ill. 232; Day v. Bullen, 226 Ill. 72; Martin v. Martin, 170 Ill. 18; Dinsmoor v. Bressler, 164 Ill. 211; Bates v. Lutz, 220 Ill. App. 54; Hicks v. Monahan, 209 Ill. App. 516; Hays v. State Bank of Saybrook, 202 Ill. App. 535; Rone v. Robinson, 188 Ill. App. 438.

The courts had held prior to said amendment that proceedings under sections 81 and 82 of the Administration Act, Cahill’s St. ch. 3, ¶¶ 82 and 83, are neither proceedings at law or in chancery, but are purely statutory proceedings. Williams v. Runyon, 230 Ill. App. 199-202; Hannah v. Meinshausen, 299 Ill. 525; Nadig v. Turner, 291 Ill. 513; People v. Hill, 163 Ill. 186; Sullivan v. Areola State Bank of Areola, 334 Ill. 40; Sebree v. Sebree, 293 Ill. 228; People v. Seelye, 146 Ill. 189; Joseph Davis, Cory & Co. v. Chicago Dock Co., 129 Ill. 180; Preston v. Spaulding, 120 Ill. 208.

They have been defined to be summary proceedings to compel persons alleged to have in their possession or to have concealed property belonging to an estate, to discover and disclose under oath such property.

Counsel for appellants practically concede.that prior to the amendment which went into effect July 1, 1925, and which added these words: “The court shall have power to hear, settle and adjudge all controverted questions of title and claims of adverse title and to determine the right of property.

“Such questions of title and of rights of property, and such claims of adverse title shall be determined, upon the demand of either party, by a trial by jury. ’ ’ A probate court would not have jurisdiction to determine questions of title, but contend that said amendment did not disturb vested rights but had only to do with remedies, and that effect should be given thereto, even though such statute might have been passed and gone into effect after a proceeding had been instituted, and cite in support thereof Otis Elevator Co. v. Industrial Commission, 302 Ill. 90.

We have examined this authority, and are of the opinion that it does not support the contention of appellants. The petition filed in the probate court of DeKalb county was filed on the 5th day of January, 1925, nearly six months prior to the passage and taking effect of the amendment to section 81, Cahill’s St. ch. 3, ¶ 82. The bill for relief herein was filed on the 17th day of April, 1925. The plea filed to said bill avers that at the time of the filing of the bill in this case the county court had jurisdiction to determine the questions sought to be litigated by the bill filed in this case. Under the authorities above cited, the county court of DeKalb county at the time of the filing of said petition for citation did not have jurisdiction to adjudicate the title to the property here in question. The bill was filed more than two months prior to the taking effect of said amendment. It is conceded that, but for the petition for citation in the county court of DeKalb county, the circuit court of Boone county, under the bill filed in this case, would have jurisdiction to adjudicate the questions involved in the chancery proceeding. We therefore hold that, inasmuch as the relief sought by the bill in this case was of a character of which a court of chancery had jurisdiction, and inasmuch as, at the time said bill was filed, the county court of DeKalb county did not have jurisdiction to adjudicate the title to the property involved, even though it be conceded that under the amendment to section 81 the county court would have had jurisdiction to have determined the title to said property, the jurisdiction of a court of equity would not be thereby taken away, once having been acquired.

In cases where a court of equity has concurrent jurisdiction with a court of law, the court which first acquired jurisdiction must hold and exercise it until the litigation is ended. Whitney v. Stevens, 97 Ill. 482-487. The jurisdiction of the court first acquiring it excludes that of all other courts to the end of the controversy. St. Louis Merchants’ Bridge Co. v. Eisele, 263 Ill. 50-53. It is elementary that the court first lawfully obtaining jurisdiction will retain it until the end of the controversy, and to the exclusion- of all others; also that no other court, even of concurrent jurisdiction, can or will make findings or orders which have any . bearing upon the issues in the court originally entertaining the cause. Nolan v. Barnes, 268 Ill. 515-520, citing Mail v. Maxwell, 107 Ill. 554-561.

The removal of clouds from a title to real estate is a subject of equity jurisdiction, and relief of that character is not afforded by courts of law. Application to the court of equity was proper. Schnellbacher v. Jobst, 271 Ill. 319-325.

We are further of the opinion and hold that the petition filed in the county court, and which was not afterwards amended, did not purport to adjudicate the title to the property in question, but was for the purpose of compelling appellee to disclose property and estate which the administrators of said estate were claiming as assets thereof.

The amendment to section 81 provides for a trial by jury. There is no right to a trial by jury in a court of chancery, unless the same is provided by statute. It cannot therefore be said that this amendment took away the jurisdiction of the court of equity to entertain a bill of this character, even though a citation proceeding might be pending at the time.

While the entry made by the circuit court of Boone county, setting the hearing of said cause for July 24, 1926, that the parties, if they desired, might offer additional testimony, the purported certificate of evidence discloses that the appellee had rested his case,- and that the appellants submitted the same without offering evidence. If no additional testimony be offered, and the cause be submitted on the testimony heard we are of the opinion and hold that the evidence fully warrants a finding in favor of appellee to the effect that his father had given him the notes and mortgages in question, and that he had contemplated releasing the same of record prior to his death, but on account of his feeble health, did not carry such intention into effect, and that appellee was entitled to the relief prayed.

Some question was raised with reference to the making of a gift of unindorsed notes so as to pass the title thereto to the donee. Unindorsed negotiable instruments are subject of gift, and the delivery and possession of such securities is as effectual as if they were indorsed and assigned. Rothwell v. Taylor, 303 Ill. 226-230; Martin v. Martin, 174 Ill. 371.

The undisputed evidence in this record is to the effect that the father of appellee had delivered the notes and mortgages to appellee with the intention of making him a gift thereof, and that the delivery thereof was completed in appellee.

Other errors were assigned on the record, but it will not be necessary for us to pass on the same. It does not satisfactorily appear as to whether or not on July 29, 1926, the day the court ruled all the defendants to the bill, not having answered, to answer the same instanter, that appellants,. the administrators of said estate, were present and had the opportunity of answering said bill after the court held their plea insufficient, and as to whether or not they desired to offer any evidence on the merits of said cause. This being the state of the record, we think, on the remandment of said cause, that appellants, administrators of said estate, should be given leave to ansiver said bill and to offer testimony, if they so desire. If they elect not to offer testimony, or to answer said bill, then a decree should be entered on the evidence taken, granting the relief to appellee as prayed for in said bill. This holding is supported by Bruce v. Doolittle, supra.

For the reasons above set forth, said cause will be reversed and remanded with directions.

Reversed and remanded ivith directions.