text:
    Hugh Rager, Trading as First United Broadcasters, Appellee, v. Western Union Telegraph Company, Appellant.
    Gen. No. 41,950.

      Opinion filed March 18, 1942.
    West & Eckhart, of Chicago, and Francis R Stark, General Solicitor, for appellant; Paul- Hassell and Owen A. West, both of Chicago, of counsel.
    Benjamin F. Morrison, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This was an action by plaintiff for damages alleged to have resulted from defendant’s failure to deliver a telegram canceling a contract. Defendant denied receipt of the message and denied that damages resulted from failure to deliver. Judgment was entered for plaintiff in the sum of $390 and costs. No point is raised with respect to the pleadings.

Plaintiff’s theory is that defendant is liable to plaintiff for failure to deliver a telegram to WLW, Cincinnati, a broadcasting station, canceling a contract with a radio station representative.. Defendant’s theory of the case is that the rights and duties of the parties are controlled by the company’s rules, regulations, classifications and tariffs published and filed in accordance with the acts passed pursuant to the commerce clause of the United States Constitution, article 1, section 8, subsection (3), particularly the Interstate Commerce Commission Act of June 18, 1910, 36 Stat. at L. 539, and the Communications Act of 1934, 48 Stat. at L. 1064, and the acts supplemental thereto and in amendment thereof; that provision 5 of the aforesaid tariff rules and regulations provides in substance that when a messenger boy picks up a message, he acts, for that purpose, as the agent of the sender; that the message is, therefore, not received by the Telegraph Company until it reaches one of its transmitting offices; and that, since, in the case at bar, the message was delivered to the messenger boy and was not received at one of the company’s transmitting offices, it was never received by the Telegraph Company; and that plaintiff is bound by this tariff provision because his message was an interstate message. It is further suggested that provision 6 of the aforesaid tariff rules and regulations provides that the company shall not be liable for damages in cases in which the claim therefor is not presented in writing within 60 days after the message in question is filed with the company for transmission; and that in the instant case, plaintiff did not file his claim in writing within said 60-day period, and is bound by said tariff provision because his message was an interstate message.

It is further suggested by defendant that plaintiff did not have a contract with WLW, the addressee of the message, his contract being with the TransAmerican Broadcasting and Television Corporation; that the telegram requesting cancellation to WLW, even had it resulted in canceling the broadcast by WLW, would not relieve plaintiff of his liability under his contract with the TransAmerican Broadcasting and Television Corporation; that it was necessary in plaintiff’s case to prove WLW would have accepted the cancellation, as per request of telegram, it being under no contract with plaintiff and plaintiff’s contract with Trans-American Broadcasting and Television Corporation containing no provision for a cancellation; and that it was, also, essential for plaintiff to prove that Trans-American Broadcasting and Television Corporation would have concurred in WLW’s cancellation.

Plaintiff suggests that defendant’s statement of the plaintiff’s and defendant’s theories of the case are inaccurate. It is suggested that defendant’s statement that “plaintiff’s theory of the case is that defendant is liable to plaintiff for failure to deliver a telegram to WLW, a broadcasting station, canceling a contract with a radio station representative” is not an accurate statement ; but that plaintiff’s contention is that the defendant is liable to plaintiff for failure to transmit or deliver a telegram canceling a contract with a broadcasting station, WLW; that the contract was with the station and was made for and on behalf of the station by the station representative, TransAmerican Broadcasting and Television Company; and that the defendant neither transmitted nor delivered the telegram to station WLW. Plaintiff also points to defendant’s statement that plaintiff did not file his claim in writing' within “said 60 day period” and says that this is not correct, as the evidence and exhibits introduced show that a claim in writing was given to the defendant within the 60 days after the message was given to defendant for transmission and delivery. However, plaintiff does not and did not (by giving such alleged written notice of claim) recognize any responsibility on him to conform to provision 6 of the company’s rules, regulations, classifications and tariffs.

Plaintiff suggests that the facts of the case are inaccurately stated, and in his restatement of the facts says that on December 25, 1939, Matilda Marx, secretary for plaintiff, pushed the buzzer connected with the office of the Telegraph Company and shortly thereafter a Western Union messenger responded at plaintiff’s office and the message on which suit was instituted was given to the messenger. The message canceled a contract with Radio Station WLW for broadcasting' time. On Saturday, December 29, 1939, plaintiff received information that WLW had not received his telegram and was still broadcasting the program. Plaintiff thereupon immediately canceled the program but was compelled to pay for 4 days’ additional broadcasting. Plaintiff also telephoned the local office of the Telegraph Company and was informed that they had not received his telegram.

On January 8, 1940, plaintiff wrote a letter to the Telegraph Company informing them that the failure of the company to transmit his telegram was causing him considerable financial loss and that the Western Union Company should make an investigation with a view toward making an adjustment. The Telegraph Company answered this letter by mail on February 14, 1940, saying they would continue to investigate the matter. On March 2, 1940, plaintiff again wrote the Telegraph Company informing them that he had had to pay for the four days’ additional broadcasting and he expected the company to reimburse him for the loss he had sustained. The Telegraph Company thereupon disclaimed responsibility.

The defendant suggests that the tariff provisions under which messages are accepted by the company are binding upon the plaintiff, and urges that the tariff provision that “no responsibility attaches to the Company concerning messages until the same are accepted at one of its transmitting offices, and, if a message is sent to such office by one of the Company’s messengers, that he acts for that purpose as the agent of the sender,” is valid and binding upon plaintiff. The defendant cites Wernick v. Western Union Telegraph Co., 290 Ill. App. 569, where this court held that the Telegraph Company, in its interstate business, was subject to the regulations of the Federal Communications Commission, which, through rules, classifications and tariffs published and filed with the commission by the Telegraph Company fixed the liability of the carrier and superseded what had previously been a matter of common-law liability. The court in its opinion said:

“It is apparent that the telegraph company prepared its new rules and tariffs many years ago in accordance with an order of the Interstate Commerce Commission. In the case of Cultra v. Western Union Telegraph Co., 61 I. C. C. 541, where, pursuant to an investigation, it was held that the existing rules and rates of the telegraph company limiting its liability for negligence were unreasonable, and new rules and rates were prescribed and discussed by the commission.” The decision of the court in the Wernick case was approved by the United States Supreme Court in Western Union Telegraph Co. v. Nester, 309 U. S. 582, 60 Sup. Ct. 769. That the Telegraph Company in its interstate.business is subject to its rates, rules and regulations being prescribed by the Federal Communications Commission seems to be no longer open to controversy. This provision is a part of the company’s published tariff regulations. The plaintiff is attempting to aviod the effect of these rules and regulations by claiming not to have seen or read the conditions to be found on the reverse side of the telegram blank or in the tariff book. This is immaterial, and the plaintiff is bound by them.

The U. S. Supreme Court, in Western Union Telegraph Co. v. Esteve Bros. & Co., 256 U. S. 566, which case was cited by this court in the Wernick decision, stated: “Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not, as before, a matter of contract, by which a legal liability could be modified, hut a matter of law by which a uniform liability was imposed. Assent to the terms of the rate was rendered immaterial, because, when the rate is used, dissent is without effect.”

In answer plaintiff denies that the tariff provision that “no responsibility attaches to the company con-corning messages until the same are accepted at one of its transmitting offices, and if a message is sent to such office by one of the company messengers that he acts for that purpose as the agent of the sender” is binding on the sender where the messenger boy was dispatched to the sender by the telegraph company for the purpose of securing a message for transmission by the company. In support of his contention plaintiff cites Walton v. Western Union, 189 Ill. App. 606, where the court said:

“We may concede that there are, many reasons why the Company, sending messenger boys at call for compensation flowing to the Company should not be held under some varying circumstances liable for the loss resulting from the boys absconding with valuable packages entrusted to them. It is not necessary to decide any such question here. This package was one quite in the line of the business which the messenger boys are held out by the Company to do. It was written document and not differing in essence from a letter or a written message.

“As for the point that the boy was agent only of the sender, it is sufficient to say that the Company gets the compensation which the sender pays. It seems to us that common sense and right reason demand that in this case the Company should be held liable to repair the damage caused by the carelessness and incompetency of the boy they sent on hire to perform the service.” The further case of Baker v. Western Union Telegraph Co., 221 Mo. App. 616, is cited, where the court said:

“The company thus constitutes the messenger its own agent and is liable for his failure to deliver the message at the company’s office.”

The plaintiff states the rule of law applicable herein to be that “The parties’ rights and duties are controlled by the common law relating to the law of negligence and agency upon which the state courts’ pronouncement is final.” The suggestion is offered by defendant, with, some force, that this is not the law where the message sued upon in interstate, but would only be so if the message in question had been an intrastate message. State courts in intrastate message cases, may or may not uphold the tariff provisions according to its idea of public policy. It appears from the brief of defendant that the case of Postal Telegraph Cable Co. v. Warren-Goodwin Lumber Co., 251 U. S. 27, was the first of a long line of decisions in which the United States Supreme Court has specifically held that the State courts’ pronouncements are not final in interstate message cases, but that the “act (of 1910) was an exertion by Congress of its authority to bring under federal control the interstate business of telegraph companies, and, therefore, was an occupation of the field by Congress which excluded state action. ’ ’ The authorities called to our attention by the plaintiff are cases which from an examination appear to have involved intrastate messages, and, therefore, would not be applicable in a case such as the instant one involving an interstate message. The authority submitted by defendant on this question (the Western Union Telegraph Co. v. Esteve Bros. & Co. case, supra) appears to be the first decision of the United States Supreme Court regarding the effect of the Western Union Telegraph Company’s rules, regulations, classifications and tariffs and the relation of the same to the Telegraph Company and its patrons, as a matter of law rather than as a matter of contract, and held the stipulations to be binding although the message was not written on a blank containing the stipulations. The rule set forth in that case has since been upheld in numerous other cases by the United States Supreme Court and supported by the case of Wernick v. Western Union Telegraph Co., 290 Ill. App. 569, to which we have already referred.

There is still one subject to be passed upon and that is the clause appearing on the reverse side of defendant ’s message blank in these words:

“The Company will not be .liable for damages or statutory penalties in any case where the claim is not presented in writing to the company within sixty days after the message is filed with the company for transmission.” Upon the facts as appear in this record as we have heretofore set out in part, plaintiff states that his letter of January 8th — which read “ . . . we believe that an investigation on your part is essential to an adjustment.” — is sufficient to constitute a claim. Defendant suggests, however, that this letter merely calls for an investigation. It appears from the authority, 62 C. J. 187, that:

“The authorities seem to agree that the claim must identify the message, state the negligence complained of and the nature and extent of the damages sustained; and that it is insufficient if it merely gives notice of the negligence complained of or if it simply complains thereof and demands an explanation.” Plaintiff’s letter of January 8th does not purport to be a claim, but only a request for an investigation on the part of the company. His letter of March 2nd, which date is more than 60 days from the date of the alleged nondelivery of the telegram, states “We are accordingly filing claim with you.” The provision for the filing of claim is valid, binding and effective on plaintiff and he was obliged to comply with it. Having failed to file his written claim within 60 days, he cannot now recover. Those who do business with the Telegraph Company are as much bound by the rules and regulations approved by the commission as the Telegraph Company is to change its rules and regulations by order of said commission.

For the reasons stated in this opinion, it is our conclusion that the court erred in entering a judgment on the findings for the plaintiff for $390 and costs. The judgment is, therefore, reversed, and judgment here for defendant and costs.

. Judgment reversed and judgment here for defendant and costs.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Lawrence A. Barrett, Successor Liquidating Trustee for Madison-Kedzie Trust and Savings Bank, Appellant, v. Alice Shanks, Administratrix of Estate of Mark Shanks, Deceased, Appellee.
    Gen. No. 41,122.

      Opinion filed March 18, 1942.
    Rehearing denied April 1, 1942.
    William H. Dillon, Rudolph F. Bostelman and Austin G. Rigney, all of Chicago, for appellant.
    Gustav E. Beerly, of Chicago, for appellee; John F. Diffenderffer, Jr., Maurice J. Costello and Gustav E. Beerly, Jr., all of Chicago, of counsel.
   Rehearing Opinion.

Mr. Justice Kiley

delivered the opinion of the court.

This is an action in assumpsit upon the guaranty of Mark Shanks, deceased, hereinafter called the defendant. The action was commenced prior to the effective date of the Civil Practice Act. The trial court directed a verdict for defendant, judgment was entered thereon October 21,1939, and plaintiff has appealed.

There was a prior appeal in this case. In the original trial plaintiff had summary judgment and the defendant appealed to this court. The judgment was reversed here and the cause was remanded for a trial on the merits.

The record shows that on April 11,1927, the defendant and several other persons signed a written guaranty of obligations of the Midwest Athletic Club of Chicago, Illinios, owing to the Madison-Kedzie State Bank, also of Chicago. The guaranty contained the following limitation:

“This guarantee applies to and covers specially and only a loan of Seventy Five Thousand Dollars $75,000 made this date or any renewal in whole or in part.” Defendant’s guaranty obligation was limited to $5,000.

The guaranty was executed simultaneously with the promissory note of the Club for $75,000, payable to the Madison-Kedzie State Bank and with an assignment by the Club of certain of its accounts receivable to the defendant, his co-guarantors and the said bank.

' Upon delivery of the note, assignment and guaranty to Madison-Kedzie State Bank, a loan of $75,000 was made to the Club. On September 12, 1930, the Club renewed the loan for the balance then due and executed a sixty day promissory note for $50,000. Thereafter the Madison-Kedzie State Bank endorsed and delivered said last note to the Madison-Kedzie Trust & Savings Bank, the original plaintiff hereinafter referred to as the Bank, and assigned to it the contract of guaranty.

On October 25,1930, the sum of $3,080 was paid by the Club on its note, but thereafter default was made in payment of the balance. Subsequently, demand was made upon Mark Shanks for payment of his proportion of the guaranty obligation. He refused to pay. This suit was filed and Shanks filed a plea of non-assumpsit, an affidavit-of meritorious defense and a notice of special matters to be relied upon for defense. The defenses in the latter two pleadings mentioned are substantially the same and state that the defendant was induced to sign the guaranty by collusion, fraudulent'and false representations. The defendant also alleges therein that it was represented to him that the Club had net assets of more than $500,000; that its liabilities were not in excess of $25,000; that guarantors of the Club’s obligation to Foreman & Co. for $250,000 were released; that the Club had not borrowed money for which it had pledged as security its membership accounts receivable. The defendant further alleges that the Madison-Kedzie State Bank accepted as security for the principal indebtedness of the Club all of its accounts receivable for unpaid memberships due or to become due after March 31, 1927, until the note was paid; that such pledge was accepted contemporaneously with the guaranty; that the pledge gave the said assignor power to ask, demand, collect, receive, compound and give acquittance for the accounts.

The pleadings of the defendant then charge that the Bank’s assignor collected and received a sum from said accounts sufficient to discharge the Club’s debt and by reason thereof he was discharged from his guaranty obligation; that the pledge was an indemnity and that the pledgee did not manage and collect the collateral properly and diligently but wasted it and that he was thereby caused a loss; that the Club paid more than sufficient to extinguish its principal debt; that the renewals of the debt were made without his knowledge and acquiescence and after the death of one or more of his co-guarantors ; and, finally, that plaintiff is not a bona fide owner of the guaranty sued upon.

The original declaration was filed in the name of Madison-Kedzie Trust & Savings Bank, a corporation, against Mark Shanks. Subsequently, on July 8, 1937, Lawrence A. Barrett, as successor liquidating trustee of the Bank, was substituted as plaintiff by order of court. Mark Shanks, the original defendant, died following this appeal, his death was suggested in the record in this court and Alice E. Shanks, administratrix of his estate, was substituted as defendant.

An amended declaration was filed by Barrett. The additional allegations covered the appointment of a receiver for the Bank, the receiver’s possession of the note herein; that the receiver became liquidating trustee; that the receiver died and that plaintiff Barrett was named successor liquidating trustee; that Barrett as such trustee is now the bona fide owner and holder of the note. The amended declaration also states the amount unpaid and due on the note as $46,920. To this amended declaration also the defendant filed a plea of non-assumpsit, an affidavit of defense and a notice of special matters of defense, which pleadings are the same as defendant’s original pleadings. Under the pleadings, filed by the parties in addition to proof of the instruments involved, proof was made without dispute that the accounts receivable of the Club had been assigned as security for the note; that those accounts were collected by the Club in an amount sufficient to pay the note; that the Club deposited the proceeds collected in its checking account with the Bank; that the proceeds so deposited were withdrawn by the Club, applied to construction costs and not applied in payment of the note; that the Club withdrew these funds from its checking account for the purpose of paying for its new Club building then under construction; and that the defendant guarantor as the Vice President and a Director of the Club made no objections to these transactions.

The trial court also, over objection of the plaintiff, admitted testimony offered by the defendant to prove that the guaranty and assignment were executed in contemplation of an application by the Bank of the proceeds of the collateral to payment of the obligations secured. At the close of the evidence the trial court out of the presence of the jury heard arguments of counsel and thereupon directed the jury to find for defendant. The verdict was returned on October 11, 1939 and on October 21, the trial court denied the motions of plaintiff for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict for the defendant.

The trial court in directing the verdict referring to the assignment, stated: “. . . and I find these to be the salient and essential words of that document— ‘until such note for $75,000, or any renewal of the whole or any part thereof, shall have been fully paid. ’ ’ ’ The trial court further stated that the assignment was “the dominating memorandum” in the case under which Smith, as Treasurer of the Midwest Athletic Club and as President of the Madison & Kedzie State Bank, was bound to apply the proceeds of the accounts receivable in liquidation of the loan. The trial court also found that as a matter of law the guarantors could not be held liable. Plaintiff contends that the trial court did not construe the language correctly and that the correct interpretation of the provisions of the assignment clearly imposed no obligation upon the Bank to so apply the proceeds of the collateral assigned. Defendant argues that the provisions of the. instruments here are ambiguous and that parol evidence admitted sustains the ruling of the trial court.

The pertinent language of the assignment with the disputed clause in italics, is: “. . . the . . . Club ... in order to secure payment of its note for Seventy Five Thousand ($75,000.00) Dollarsj . . . does hereby assign to Mark Shanks, . . . and to the Madison & Kedzie State Bank ... all the accounts receivable ... of the Club . . . being for unpaid memberships due or to become due after March 31, 1927, ... or until such note for Seventy Five Thousand ($75,000.00) Dollars, or any renewal of the whole or any part thereof, shall have teen fully paid. . . .” The disputed clause standing alone is meaningless. It depends on other language. A study of the above pertinent language of the assignment in which the clause appears will readily disclose that it modifies either “assign” in the principal clause or the words “due” in the phrase which commences, “being for unpaid memberships, etc.” There is no other alternative. The only reasonable arrangements of these sentence elements, are, therefore, as follows: “. . . the . . . Club . . . does hereby assign . . . accounts receivable . . . until such note . . . shall have been fully paid.” and “. . . the . . . Club . . . does hereby assign accounts receivable . . . being for unpaid memberships due or to become due after March 31, 1927, ... or ‘until such note . . . shall have been fully paid. ’ ” The first alternative disregards the word “or” which precedes “until.” That word should be given effect, if possible. It is given effect in the second alternative. We are, therefore, constrained to conclude that the clause in dispute modifies the words “due” in the manner set forth in the second alternative. The clause, properly construed, accordingly established a limit of time beyond which accruing accounts receivable were not to be assigned.

We must now decide the meaning of the entire sentence in the light of our conclusion as to the proper function of the clause discussed above. To arrive at the meaning we must, if we can, determine from the language, why the accounts receivable were assigned. The trial court has decided and the defendant contends that the accounts were assigned to be collected by the Bank and paid by it on the note. Plaintiff insists that they were to be neither collected nor applied by the Bank, but held by it only as collateral to the Club’s obligation to pay its note. The assignment reads: “. . . the Club ... in order to secttre payment of its note . . . does hereby assign, etc.”

It is clear from that, the words ‘ ‘ to secure ’ ’ control the reason for the assignment. The word “secure” is defined (Webster’s New International Dictionary, 2d Ed.) in the sense used here, as follows:

“To give adequate pledge of payment to (a creditor) of or an (obligation).” The word “pledge” as a noun is defined in the same dictionary in the sense used here, as:

“A chattel or object of personal property, delivered by a debtor or obligor to a creditor or obligee to be kept by the latter until the debt or obligation is satisfied. ’ ’ To attain the meaning for which the defendant strives, would require that we refuse to give effect to the meaning of the word “secure.” We hold that the assignment was not made in payment or for payment of the note, but as collateral to be kept by the Bank until the Club paid the note. We are of the opinion that the trial court did not correctly construe the instrument. We believe the assignment is unambiguous; and that by it, accounts receivable — accruing after March 31, 1927, and up to the time the Club paid its note, — were assigned as collateral to secure such payment. It is clear from the undisputed evidence of the actions of the several parties involved in this transaction, that they, themselves, construed the instrument as we have.

The trial court erred in admitting parol evidence in aid of the interpretation of the instruments involved in the proceeding. The language of each instrument is clear and the two are not inconsistent or repugnant, as will readily appear from a comparison of the provisions of the assignment hereinbefore set forth with those of the guaranty, which follows: . . the liability hereunder shall in no wise be affected or impaired by . . . any sale, pledge, surrender, compromise, release, renewal, extension, indulgence, alteration, exchange, change in or modification of any of said indebtedness, ... or any security or collateral therefor. . . . Said Bank shall have the exclusive right to determine how, when and what application of payments and credits . . . shall be made on said indebtedness. ... In order to hold the Guarantors liable hereunder there shall be no necessity or duty on the part of said Bank to resort at any time for payment to said Debtor ... or to any collateral or security . . . lohatsoever. . . . All diligence in collection . . . and notice ... of default and of non-payment of any note, . . . are hereby expressly waived.” These conclusions make it unnecessary to consider the various points and authorities which have to do with rules of construction of several ambiguous instruments involved in the transaction.'

The undisputed facts in the record set forth herein-above dispose of further "contentions of the defendant that the Bank was not diligent in collecting, and was wasteful in wrongfully misapplying, the proceeds of the account; and that the Bank by misapplying such proceeds diminished the indemnity, in the form of the accounts, of the guarantors. Those facts show that the Club, and not the Bank, withdrew the proceeds from the Club bank account and applied the same to its construction costs. It seems obvious the Bank could not have been guilty of the charges made, and the contentions of the defendant, therefore, cannot be sustained. These considerations also dispose of the question whether the defendant waived his right to object to a misapplication of the funds; and whether, once the Bank assumed to apply the proceeds, its application was limited to the purpose of the assignment. We have decided as a matter of law that there was no obligation on the Bank to so apply the proceeds and that the facts show no such application was made.

The defendant contends that the plaintiff has shifted his position in this court from that occupied by him in the trial court. The record shows that the plaintiff argued the precise question in the trial court that he urges here. The defendant further contends that the original guaranty was not'produced at the trial nor its absence accounted for; and that plaintiff is not a bona fide holder of the guaranty. The record discloses that a photostatie copy of the guaranty was admitted in evidence by agreement of the parties and that proof of plaintiff’s possession of the instrument is not controverted. Finally, the defendant’s answer to plaintiff’s petition for rehearing urges that the cause should be retried on the question of fraud in procuring the guaranty: That question is one which this court held in its prior appeal was made an issue of fact by the pleadings. There is no evidence of fraud in the record. Plaintiff apparently abandoned this issue at the trial. The question is not properly presented here.

For the reasons herein given the judgment is reversed and the cause remanded with directions to the trial court to enter judgment for plaintiff and against the defendant Alice Shanks, as administratrix of the estate of Mark Shanks, for $4,265.98, such judgment to be paid in due course of administration.

Judgment reversed and cause remanded with directions to enter judgment for $4,265.98.

Burke, P. J., and Hebel, J., concur.


text:
    Harold Rossiter, Appellant, v. Taylor G. Soper, Appellant, Walter A. Davis, Sr., Appellee, Josephine Salzer Elsner, Defendant.
    Gen. No. 41,654.

      Opinion filed January 7, 1942.
    Rehearing opinion filed March 18, 1942.
    March & Bossiter, of Chicago, for appellants; Benjamin F. March, Lyle II. Bossiter and W. D. Sellers, all of Chicago, of counsel.
    Lloyd M. Brown and C. W. Armstrong, both of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from that part of a decree of the Circuit Court of Cook county which found that the Probate Court did not have jurisdiction, upon the petition of an executrix to sell property for debts, to determine that a homestead estate did not exist in the property; and that the Probate Court did not have jurisdiction to sell the property free and clear of such homestead estate except as provided in the Exemptions Act. Appeal is also taken from the decretal order finding that the defendant still owns a homestead in the property and that plaintiff has only an equitable estate, subject to such homestead. The decree appealed from was entered pursuant to issue made on plaintiff’s partition suit and reference to a master and confirmation of the master’s report. The plaintiff Bossiter and the defendant Soper have joined in this 'appeal.

Marie Salzer Davis died October 20, 1935, and left her husband Walter A. Davis, Sr., and her sister Josephine Salzer Eisner, both defendants, her only heirs-at-law. At the time of her death she owned in fee certain real estate occupied by her and her husband ° as a residence. The property was located at 4551 North Lowell avenue, Chicago, Illinois, and was stipulated to be worth about $4,500. Her will provided, among other things, as follows:

“I give, devise and bequeath unto my beloved sister, Josephine Salzer Eisner, all my property, both real and personal, of which I may be possessed at the time of my decease, except such property as my husband, Walter A. Davis, Sr., is entitled to under the Inheritance Laws of the State of Illinois, which I give, devise and bequeath to him.”

The will was admitted to probate and letters testamentary issued to Josephine Eisner, October 29, 1935. She, as executrix, filed a petition in the Probate Court on June 8, 1937, for leave to sell the property to pay debts of the estate. On August 8,1937, such leave was given and September 8, 1937, the property, free and clear of homestead but subject to taxes, was sold to Taylor Gf. Soper for $2,200. The sale was approved by the Probate Court. The executrix then executed a deed to Soper and the latter subsequently conveyed a one-fourth interest to Harold Rossiter, the plaintiff.

Rossiter filed this partition suit alleging that Davis claimed an interest. Davis answered that he owned a homestead in the property, and had no notice of the proceedings in the Probate Court. He deified the jurisdiction of the Probate Court to sell the property free and clear of the homestead without his written assent and averred that he had not assented. He filed a cross-complaint praying for a decree for payment to him of $1,000 for his estate in the property. After the answer was filed plaintiff amended his complaint, praying that should he be directed to pay Davis $1,000, that he be reimbursed by the executrix.

The decree of sale in the Probate Court found that Davis was served with summons, did not appear and was defaulted; that the decedent owned the property in fee; that Davis failed to renounce under the will and took, in lieu of dower and homestead, an undivided one-third of the property, subject to debts, etc. The decree further found there were no other liens and ordered a sale subject to taxes.

The partition decree, subject of this appeal, found that Davis did not renounce under the will; that he took no beneficial interest under the will and took nothing in lieu of homestead. The decree further found that he has a homestead interest in the property; that the Probate Court had no jurisdiction to order the sale free of the homestead interest of Davis; that the plaintiff should pay Davis $1,000, value of the homestead estate, within 60 days from the entry of the decree, otherwise plaintiff’s prayer for partition to be denied.

It is the theory of Rossiter and Soper that section 101 of the Administration Act, gives the Probate Court full jurisdiction to determine whether Davis had a homestead estate; that the Probate Court having found that he did not, it had the power to order the property sold free and clear of any homestead; that written assent by the owner of the homestead is needed only when such an estate is found to exist; that the court having determined Davis had no homestead, the remedy which Davis had was in a direct appeal from the Probate Court and not in a collateral attack such as is made here. David contends, however, that the Probate Court has not the power to determine that a homestead does not exist; that it cannot order property sold unless the owner of the homestead therein gives written assent; that the law protects his homestead and that he need not have renounced under the will to protect it; that the Probate Court lacking jurisdiction, the question of the validity of its order is properly raised here.

The briefs present many points for both parties, but we believe those points are properly resolved into the following essential questions:

1. Did the Probate Court have power to determine whether Davis had a.homestead estate in decedent’s property; and

2. Did the Probate Court have power to order a sale of the property free of homestead in the absence of compliance with the provisions of the Exemptions Act, ch. 52, Ill. Bev. Stat. 1939 [Jones Ill. Stats. Ann. 107.124].

There is apparently, no disagreement between the parties upon the law that if the Probate Court had jurisdiction to enter the order of sale, such order may not be attacked in this collateral proceeding; that if the Probate Court did not have jurisdiction, the validity of the order of sale may be decided herein; that purchasers at such sale in the latter event are not protected against jurisdictional defects in the order of sale; that if Davis owned a homestead estate in the property, the Probate Court did not have jurisdiction to sell the property except in compliance with the provisions of the Exemptions Act.

In our search for the appropriate rule in this case we will not consider the question of the jurisdiction of the person of Davis. That question is not before us. The master made no finding with respect thereto and Davis did not object to the master’s report nor file exceptions before entry of the decree nor in anywise preserve that question for review. The only jurisdictional question before us, therefore, is as to the subject-matter.

For the answers to the questions set forth above, we must look to certain statutes and the Constitution of the State of Illinois. The Constitution of 1870 provides in section 20 of Article VI, for the establishment of Probate Courts; and that when established, those courts shall have jurisdiction of cases of the sales of real estate of deceased persons for the payment of debts. These provisions are repeated substantially in the Probate Court Act, ch. 37, par. 303, Ill. Bev. Stat. 1939 (Smith-Hurd) [Jones Ill. Stats. Ann. 110.157]. When the Probate proceedings herein were had, the Administration of Estates Act, ch. 3, par. 99, Ill. Rev. Stat. 1939 (Smith-Hurd) then in force gave power to the Probate Court to sell real estate where personalty is insufficient to satisfy the claims and expenses of the estate. Paragraph 100 establishes the mode of proceeding to such sale by petition of executor or administrator and provides -that persons having or claiming interest therein, in possession or otherwise, shall be made parties; paragraph 101 prescribes the form of such petition; paragraph 102, section 101 [Jones Ill. Stats. Ann. 110.102], provides in part:

“. . . The court may direct the sale of such real estate, disincumbered of all mortgage, judgment or other money liens that are due, and may provide for the satisfaction of all such liens out of the proceeds of the sale, and may also settle and adjust all equities, and all questions of priority, between all parties interested therein, and may also investigate and determine all questions of conflicting or controverted titles arising between any of the parties to such proceeding, and may remove clouds from the title to any real estate sought to be sold and invest purchasers with a good and indefeasible title to the premises sold. The court may, with the assent of any mortgagee of the whole or any part of such real estate, whose debt is not due, sell such real estate disincumbered of such mortgage, and provide for the payment of such mortgage out of the proceeds of such sale; and may also, with the assent of the person entitled to an estate in dower, or by the curtesy, or for life or for years, or of homestead to the whole or in part of the premises, who is a party to the suit, sell such real estate with the rest. But such assent shall be in writing and signed by such person and filed in the court wherein the said proceedings are pending. . . .

Rossiter and Soper contend that under a proper construction of the constitutional provision and the statutes above referred to, the Probate Court had jurisdiction to determine the validity of the claim of Davis to a homestead estate. In support of their contention they cite Schottler v. Quinlan, 263 Ill. 637, wherein the Supreme Court upheld the power of a Probate Court to remove a tax lien from real estate upon a proceeding to sell decedent’s real estate to satisfy debts. The decree of the Probate Court was reversed in that case but only because of lack of proof of decedent’s ownership. Eossiter and Soper further refer ns to Bauer v. Benton State Bank, 258 Ill. App. 332, wherein the Appellate Court for the Fourth District upheld-the power of a County Court, in a proceeding to sell decedent’s real estate for the payment of debts, to remove a mechanic’s lien as a cloud on the title of decedent’s real estate. In that case the Appellate Court advanced the theory upon which the power of the County and Probate Courts to exercise equitable action is based: “The theory is that the estate in the land which it is proposed to sell can be sold more advantageously and with the expectation of realizing a better price, after the interests of all parties have been determined so that the purchaser may know precisely the nature and extent of the estate for which he is bidding.”

Davis, to meet these contentions, urges the holding of the Supreme Court in Utes v. Utes, 260 Ill. 362. The court there held that the Probate Court had no jurisdiction to determine the homestead rights of certain heirs and that the question could be determined only in a court of equity. To distinguish that case from the one at bar and from those relied upon by plaintiff, it will suffice to say that in the TJtes case, the proceeding was not an application to sell decedent’s real estate for the payment of debts. The most recent Supreme Court decision upon the equitable jurisdiction of the Probate Court is London & Lancashire Indemnity Co. v. Tindall, 377 Ill. 308. The court there considered a decision of the Appellate Court, Fourth District, which reversed a decree of the Circuit Court upon the ground that the latter was without jurisdiction to entertain the action for subrogation and equitable assignment. The Indemnity Company sought subrogation to the share of a defaulting original administrator who was also an heir in the estate. The Supreme Court reversed the Appellate Court, but held that it is beyond the power of a Probate Court to exercise original equi-' table jurisdiction, except in the zone created by section 20, Article YI of the Illinois Constitution of 1870 which includes matters affecting the administration of estates of decedents.

The instant appeal rests upon an order of the Probate Court entered pursuant to an application by the executrix to sell decedent’s real estate for debts. The order found that the defendant had no homestead estate. Such a determination required the application of equitable powers. It seems unreasonable that the constitutional and statutory provisions conferring the powers hereinabove discussed should be construed so as to require the representative of an estate in an application to sell decedent’s real estate for debts, to proceed first in equity in a separate court before invoking the power of the Probate Court to sell the property. Our courts hold that in such proceedings, Probate Courts properly exercise equitable powers. Schottler v. Quinlan, 263 Ill. 637; Bauer v. Benton State Bank, 258 Ill. App. 332. We are of the opinion, therefore, that the Probate Court in this case properly exercised its equitable jurisdiction in finding that decedent’s property was free of defendant’s claim of homestead. The action taken by that court was within the equitable zone created by the Constitution and provisions of the Probate and Administration of Estates Act.

We come now to the question of the jurisdiction of the Probate Court to sell the property without complying with the provisions of the Exemptions Act. It is agreed that Davis did not abandon or give up the homestead estate; nor did he assent in writing to the sale thereof; neither did the court set-off the estate nor require payment to Davis of the value of the homestead. It is evident, therefore, that the requirements of the Exemptions Act for extinguishing a homestead estate were not fulfilled. These requirements, however, presuppose the existence of a homestead estate. Obviously, when no such estate exists, no action is necessary to extinguish it. We have held that the Probate Court exercised its appropriate and lawful power in determining that Davis had no homestead estate in the property of the decedent. That decision of the Probate Court was not properly reviewed by the Circuit Court in this partition suit and the trial court erred in finding that Davis has a homestead in decedent’s property and in finding that the sale to Soper was subject to that estate. Under the circumstances, the provisions of the Exemptions Act did not apply and nothing remained for the Probate Court to do after its finding on the claim of Davis except to order the sale of the property free of any homestead claim or estate. It ordered the sale, and rightfully so.

The decree of the Circuit Court is reversed and the cause is remanded with directions to enter a decree with findings not inconsistent with the views expressed in this opinion and granting the relief prayed for by plaintiff in his complaint and amended complaint for partition.

Reversed and remanded with directions.

Burke, P. J., and Hebel, J., concur.

On Rehearing.

This cause was before this court on a former appeal, and on January 7, 1942, an opinion was filed by this court in which the judgment of the Circuit Court was reversed and the cause remanded with directions.

We have carefully considered the points presented by counsel on rehearing and have decided to adhere to the decision in our former opinion. The judgment is, therefore, reversed and remanded with directions.

Reversed and remanded with directions.

Burke, P. J., and Hebel, J., concur.


text:
    Victor Anderson, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,731.

      Opinion filed March 18, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Bussell Bundesen and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Peden, Melaniphy, Ryan & Andreas, of Chicago, for appellee; John C. Melaniphy and Gerald Ryan, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action under An Act to Suppress Mob Violence (ch. 38, secs. 512-517, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann., 37.481-37.486]), in force at the time of the incident subject of the complaint. The jury returned a verdict in plaintiff’s favor for $7,500. The trial court denied defendant’s motion for a judgment notwithstanding the verdict and entered judgment for plaintiff. The defendant City of Chicago has appealed.

On May 26, 1937, a strike was called at the Republic Steel plant at 118th street and Burley avenue in the City of Chicago. In the afternoon of May 30th, several thousand people gathered near “Sam’s place,” a tavern at 113th street and Greenbay avenue north and east of the plant. There were speeches, a distribution of placards bearing slogans in support of the strike and a distribution of some clubs, rocks, iron slugs and gas pipe among persons in the gathering. This activity was observed by a member of the Chicago police who reported the same to his superior. At about 3: 30 or 4: 00 o’clock, several hundred people commenced to march south on Greenbay avenue toward the plant. At this time plaintiff, who denies going to the scene to participate in the demonstration, drove up to Greenbay avenue and 112th street and parked his car in that vicinity. He lived at 9919 Ewing avenue, Chicago, and testified that he and his companion Hilding Engdal were going to a cemetery in Hammond, Indiana “to visit the grave of some friend of my sister-in-law”; that he had never been to 113th street and Greenbay avenue before and did not know “Sam’s place” was there; that he intended to drive to Hammond by Avenue “ O, ” one block east of Greenbay avenue, and had driven west over 112th street from Ewing avenue, after driving south on Ewing from his home; that reaching avenue “0” he saw the gathering and went over to see if it was a picnic; that he went to the cemetery several times but not always to see the grave of the friend of his sister-in-law, but sometimes only for the ride; that when going there he did not always go by way of 112th street and avenue “0”; that he did not know there was to be a meeting of strikers around “Sam’s place” and did not know the Republic Steel Company’s plant was at 117th street and Burley avenue.

After parking his car, plaintiff conversed with Engdal for some minutes and then started walking after the marching crowd, but never approached closer than 200 feet of it. The march continued south on Green-bay avenue to 114th street, then across the prairie toward 117th street and Burley avenue with many of the marchers carrying the placards, clubs, rocks, iron slugs and pieces of hollow pipe distributed near “Sam’s place.” Between 115th street and 116th street, about 200 policemen under the supervision of Captain Mooney of the Chicago Police Department stood in skirmish formation. The police had been on strike duty since May 26th and there had been clashes near the plant. As the marchers advanced they were commanded by the police to disperse. The command was followed by threats of the marchers, a barrage of missiles thrown at the police, tear gas bombs thrown by the police, and the firing of shots. Plaintiff says he heard a whistle blow and then the sound of shots; that he and his friend turned and started running north; that after a few steps he received a bullet in the back of his left knee; that he was paralyzed and fell into a ditch where he lay for 20 minutes or a half hour; that other bullets struck against the ditch above him; that people ran over the ditch pursued by policemen clubbing them down, shooting and throwing bombs; that he lay there bleeding until two policemen came upon him and one cursed him, jumped on his left leg, kicked him several times in the crotch, dragged him out by the hair, stood him up, cursed him again, commanded him to walk, clubbed him, kicked him in the ribs and was finally restrained by the other policeman from inflicting further punishment on plaintiff.

There is no question but that the plaintiff was seriously, painfully and brutally injured. Medical testimony showed the bullet entered the rear of plaintiff’s left knee joint and caused a comminuted fracture of the left femur at its juncture with the knee joint and, as a result of his injuries following the shooting, his left testicle wasted away. He was treated in various hospitals for several months and, at the time of the trial, walked with the aid of a cane with a limitation of over 25 per cent in the action of his left knee. At the trial he had an enlarged knee joint, the lower one-third of his left thigh was diminished in size and the testimony was that the injuries were permanent.

The complaint here is founded upon section 4 of the Act — (ch. 38, secs. 512-517, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.481-37.486]) which provides :

“ § 4. Any person or persons composing a mob under the provisions of this act, who shall by violence inflict material damage to the property or serious injury to the person of any other person upon the pretense of exercising correctional powers over such person or persons, by violence and without authority of law, shall be deemed guilty of a felony, and shall suffer imprisonment in the penitentiary not exceeding five years; and any person so suffering material damage to property or injury to person by a mob shall have an action against the county, park district or city in which such injury is inflicted for such damages as he may sustain, to an amount not exceeding ten thousand ($10,000) dollars.” Plaintiff charges in the complaint that the marching strike sympathizers constituted a mob within the meaning of the act; that he was injured as a result of the mob’s violence and that the City is liable for such injuries. The City answered that it was not liable under the Act and that the plaintiff was injured by City police engaged in suppressing an unlawful assembly. The defendant contends that the plaintiff did not prove that the marchers were assembled for either of the purposes set forth in Section 1 of the Act, so as to constitute a mob thereunder. Plaintiff refers us to many cases which define the word “mob.” We have not considered the cases because the Act itself defines the word for its purposes. Section 1 reads as follows: “§ 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That any collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of any one supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers or regulative powers over any person by violence, and without lawful authority, shall be regarded and designated as a ‘mob.’ ” Plaintiff claims that the evidence shows that the marchers had the purpose of exercising correctional or regulative powers over the strikebreakers in the plant. This claim, he says, is supported by the testimony of shouts of marchers that they were going “to get them men out who were working there” and “get them finks out of the mill.”

The question is whether such a purpose brings the marchers within the definition of Section 1. Because of plaintiff’s claim, a knowledge of the meaning of the words “correctional” and “regulative” as used in Section 1 is essential for determining whether the marchers in this case were a mob.

No Illinois case has been cited which defines the words, “correctional” and “regulative” as used in the Act. The case of Reynolds v. Lathrop, 133 Ohio St. 435, decided in 1938, involved consideration, of a statute which defined a mob as:

“A collection of people assembled for an unlawful purpose and intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence and without authority of law.” In that case plaintiff was injured by the violence of ten or twelve strikers who mistook him for a “scab.” The Supreme Court of Ohio held that the trial court properly dismissed plaintiff’s action, and said:

“If the mob, in assaulting and injuring him, is attempting to administer justice with its own hands in the interest of the public good and is not acting for its own selfish or personal ends, then the assailants exercise correctional power by force and without authority of law.” And further: “A group composed of persons sympathetic to the element supporting the strike attacked a supposed scab or strikebreaker in the interest of the strikers. This conduct did not constitute the exercise of correctional power within the meaning of the statutes.v In an Indiana case, Shake v. Board of Com’rs of Sullivan County, 210 Ind. 61, 1 N. E. (2d) 132, an action was brought by injured strikebreakers under the Indiana Mob Violence Act and the Supreme Court of Indiana held that the words “correctional” and “regulative,” “refer to violence offered for the purpose of exercising correctional and regulative powers vested by law in the government, for we cannot conceive of the Legislature taking cognizance of other rule or law-making authority.” Plaintiff points out that in that case the late Justice Treanor in a dissenting opinion held that the terms “correctional” or “regulative” powers also included acts of violence to compel conformity to the ideas and standards of the persons using the violence, even though the ideas and standards of the persons using the violence, might be contrary to the law of the State. Justice Treanor, however, concluded his dissenting opinion with the following words: 1 ‘ The evil aimed at in these statutes is the substitution of the exercise of irresponsible power of private individuals for the orderly exercise of power by the state.”

In other words, plaintiff contends that since the evidence would indicate that the assemblage had the purpose of taking the strikebreakers out of the plant, that it was thereby purposing to make the strikebreakers conform to the conduct of the strike sympathizers ; to exercise correctional powers over the strikebreakers. Determination of this interesting point requires consideration of the context of the entire act. The purpose of the act is to impose upon municipalities, to which the State has delegated police power, the responsibility of protecting its residents against the unlawful exercise, by unauthorized groups of persons, of powers delegated. Section 1 declares that any such group collected for the purpose of offering violence to a person supposed to have committed a crime or exercising correctional or regulative power over others by violence, is a mob. Section 3 declares that any person or persons composing a mob with intention to injure a person charged with a crime, or pretending to exercise correctional powers over such person by violence and without authority of law shall be guilty of a misdemeanor. The word “such” in Section 3 refers to “a person charged with a crime.” Section 4 provides a penalty for persons forming a mob who materially damage the property or seriously injure (as defined in section 2) any other person under pretense of exercising correctional powers over such person, and also provides a remedy for any person whose property is so damaged or person so injured. Section 5 provides a cause of action for dependent survivors of any “such other person” suffering death by lynching at the hands of a mob. Thus it appears that while Section 1 would indicate the Act had as its purpose imposing upon municipalities the responsibility of protecting persons whether charged with, or supposed to have committed, crime or not, Section 3 clearly limits the responsibility to persons charged with crime, and while Section 4 apparently gives no relief for injuries, from a mob, to a person charged with or supposed to have committed a crime, Section 5 provides a remedy for the dependent survivors of any such person if the mob killed him. Agreement with plaintiff’s contention that the marchers here constituted a mob under the Act would require disregarding the words, “without lawful authority” which in each section of the Act excludes from the definition “mob” authorised groups assembled to exercise correctional powers. “Without lawful authority” implies the possibility that some group could have lawful authority to do the act purposed, and it is inconceivable that in this State any persons should be lawfully authorized to exercise correctional powers over other persons, with violence, to make the latter conform to standards of conduct other than those established by law; or that the strike sympathizers here could be lawfully empowered to use violence to coerce non-strikers to conform. It seems clear, therefore, that the intention of the legislature, as expressed in the Act, was to impose upon municipalities in Illinois the responsibility of preventing-mobs from interfering with the orderly processes of established law and of preventing mobs from arrogating to themselves the powers given by this State to its municipalities, to force people into compliance with that law. We are of the opinion, therefore, that the crowd that gathered at “Sam’s place” and marched toward .the plant and against the police, was not a mob within the meaning of the Act.

The evidence before us does not tend to prove that plaintiff was the intended victim of a mob nor that his injuries were inflicted by it. We think the language of Section 4 of the Act, set out hereinabove, clearly requires such proof. Pertaining to that point, Section 4 reads: “. . . upon the pretense of exercising correctional powers over such person. . .” The words, “such person” refer to “injury to the person of any person” preceding the former in the same sentence and describing the person injured by a mob. It follows that plaintiff must have been the object of the mob’s purposed correctional powers to meet this requirement of the Act. For these reasons, therefore, plaintiff’s theory that the crowd’s purpose was to correct the strikebreakers, invoked to aid his cause under Section 1 is harmful to his cause under Section 4. Plaintiff further contends that a correct construction of Section 4 does not limit the action therein provided to any person injured by a mob and that the phrase, “any person so suffering ., . . injury” is referred by the word “so” to Section 2 of the Act, wherein serious injury is defined. We cannot agree with this contention. Under “the last antecedent clause” doctrine, Stevens v. Illinois Cent. R. Co., 306 Ill. 370, “so” must relate to its nearest antecedent unless the context of the entire Act requires a more remote relationship and the Act under discussion does not so require. We believe that under the true construction of section 4, the word “so” relates to “any other person” in the same sentence. Our view is, therefore, that the plaintiff must have been injured by a mob to bring his suit within the Act. There is no dispute as to the source of the injuries to plaintiff except as to the shooting. Plaintiff’s brief does not indicate his position as to who shot him, but he does contend that Lieutenant Eyan’s testimony indicated that others beside the police had fired shots. A reading of Eyan’s entire testimony and considering the improbability of the marchers shooting in the direction they were running from the police, will readily give support to our finding that no inference is justified from the record that there was shooting by any one other than the police. As we have said, however, even if the marchers shot plaintiff, another inconsistency in his case arises because plaintiff claims the marchers were purposing to correct the strikebreakers and not him. It was necessary to show that a mob pretending to exercise correctional powers by violence over plaintiff, injured him. Plaintiff was not the object of the strike sympathizers’ purpose, the strikebreakers were; plaintiff was not a strikebreaker, he was a bystander ; and he was not injured by the strike sympathizers.

It is our opinion that the plaintiff was required to prove that the marchers constituted a mob as defined by the Act; that the mob assumed the powers lawfully authorized in other persons and sought to exercise such powers over the plaintiff, and in pursuance of such unlawful purpose injured the plaintiff.

The evidence before us, considered in the light most favorable to plaintiff, together with the reasonable inferences drawn therefrom in his favor, does not tend to establish these essentials. The trial court should have granted defendant’s motion for a judgment notwithstanding the verdict.

For the reasons herein given the judgment of the superior court is reversed and judgment is entered here for costs for the defendant and against plaintiff.

Judgment reversed and judgment here for defendant and against plaintiff.

Burke, P. J., and Hebel, J., concur.


author: Mr. Justice Kilby

text:
    Hazel Mangrum Gray, Appellant, v. Guy Richardson and Walter J. Cummings, Receivers, et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 41,732.

      Opinion filed March 18, 1942.
    Lawrence C. Mills, of Chicago, for appellant.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellees; William J. Flaherty and John ft. Guilliams, both of Chicago, of counsel.
   Rehearing Opinion.

Mr. Justice Kilby

delivered the opinion of the court.

Leave was given plaintiff to appeal from an order of the circuit court granting a new trial to the defendants.

Plaintiff sued for damages for injuries suffered by her when she was thrown to the street while alighting, she claims, from one of defendants’ street cars in the

City of Chicago. The jury returned, a verdict for plaintiff and awarded her damages in the amount of $6,500. The court entered judgment on the verdict and later, on defendants’ motion, vacated the judgment and granted the defendants a new trial.

It appears from the evidence that on December 17, 1936, plaintiff, her then husband Fred Mangrum, her daughter and niece, boarded a southwest bound Archer avenue street car at Van Burén and State streets in Chicago. Plaintiff then resided at 3315 South Wood Street, Chicago. As the car approached Wood Street plaintiff pressed a buzzer signaling her desire to have the car stop. She then left her seat, looked to see that her companions were following, and then proceeded to the front platform of the car. As the car neared the intersection the motorman opened the front door and plaintiff, grasping the hand bar, started to alight. At this point a conflict begins in the evidence as to what else happened. Plaintiff alleges and offers evidence to show that while she was alighting, she was thrown to the street by a sudden jerk of the car, either after the car stopped or as it was coining to a stop. The defendants claim that plaintiff had alighted while the car was in motion and, after taking a few steps, fell to the street. The evidence shows that her husband, the conductor and motorman picked her up, and her husband and niece helped her to her home, not quite a block away.

Plaintiff contends that she was thrown first on her hands and knees and in some way during the fall injured her back, her ankles and right instep. Defendants say that when the plaintiff fell, after having alighted, she bruised her hands and knees; and that any other injuries suffered were the result of beatings inflicted by her then husband upon her before and after the accident here complained of and also the result of an automobile accident shortly thereafter. A verdict was returned by the jury on February 14, 1941 and on February 17, 1941, the trial judge entered judgment on the verdict. On February 28, 1941, the court vacated the judgment and sustained defendants’ motion for a new trial.

■There were thirty-six grounds contained in defendants ’ written motion and the motion was sustained, according to the trial court, “on all the grounds set forth in defendants’ motion, . . .

Plaintiff relies on three points to reverse the order of the trial court, that the verdict is not excessive; that all of defendants’ grounds in the motion for a new trial are without merit; and that the record sustains plaintiff’s case and the motion should have been overruled. The defendants to sustain the order of the trial court urge that the verdict is excessive; that the verdict is contrary to the manifest weight of the evidence; that there are errors in the instructions; that medical testimony given as to future treatments is speculative; and that the doctor’s opinion upon subjective symptoms invaded the province of the jury.

For convenience we shall first consider the vital question of the instructions. The defendants insist that plaintiff’s given instruction No. 6 is erroneous. That instruction reads as follows:

“The care and caution required of the plaintiff was such conduct and care and caution for her own personal safety in alighting from the car in question as a reasonably prudent and cautious person would have exercised under the same conditions and circumstances, before and at the time of the alleged injury. She was not required to exercise extraordinary care or diligence.”

As we have pointed out plaintiff alleged and offered evidence to show that she was injured while alighting. The defendants’ answer averred and the evidence in their behalf was offered to prove that the injury occurred after she had alighted. Thus the point is controverted in the pleadings and the evidence thereon is in conflict. The instruction, therefore, in assuming that she was alighting from the car was highly prejudicial and our courts have held under similar circumstances that the giving of such an instruction constituted reversible error. Lavander v. Chicago City R. Co., 296 Ill. 284; Grifenhan v. Chicago Rys. Co., 299 Ill. 590. The Supreme Court has also held that no other instruction given could remove that error. People v. Harvey, 286 Ill. 593.

Defendants also complain of instruction No. 3, given on behalf of plaintiff. It reads as follows:

“While as a matter of law, the burden of proof in this case is upon the plaintiff and it is for her to prove her case by a preponderance of the evidence, still, if the jury finds the evidence in this case, Avhen considered altogether, preponderates in her favor, it would be sufficient for the jury to find the issues in her favor.” This instruction is susceptible to the criticism made of an instruction in Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 171, although the instant instruction is free from the objectionable lan-. guage which made the instruction in that case vulnerable for another reason. The Supreme Court there held that right to recovery must be limited to the negligence charged in the complaint. There is no limitation in instruction No. 3 to guide the jury, but other instructions given furnish such a guide, consequently, under the ruling of this court in Garlinski v. Chicago City Ry. Co., 257 Ill. App. 414, no error was committed in given instruction No. 3.

During the trial the court overruled defendants ’ motion to strike the following answer of plaintiff’s witness Dr. Drago:

“Well, she has received infra-red radiation, that is, our lamp treatment which penetrates, which she received before. She may come back in case the pain becomes severely painful. She may come back. It is helpful.” Our courts have held that a mere possibility of future pain or suffering is not sufficient to warrant an assessment of damages. Stevens v. Illinois Cent. R. Co., 306 Ill. 370. The answer should have been stricken as were similar indefinite answers given by the witness.- The court also overruled defendants’ objection to the following question put to the same witness:

“Based upon a reasonable medical certainty, have you an opinion as -to whether or not her condition in any way affects her ability to stand in order to do her work?” The rule upon such a question appears to be that a witness can not be permitted to give his opinion on a fact which the jury is to decide, where there is a conflict in the evidence as to the manner and cause of plaintiff’s injury, or as to whether plaintiff’s injury was caused by the accident in question. In the case at bar, both points are controversial, the question was not a medical or scientific one, the province of the jury was invaded by it and the trial court should have sustained the objection. Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154; People v. White, 365 Ill. 499, 513.

Defendants’ motion for a new trial was properly sustained by the trial court because error was committed in the trial by the giving of the instruction and making the rulings on evidence hereinbefore discussed.

In aid of a new trial we have examined plaintiff’s given instructions Nos. 1, 5 and 10, also defendants’ refused instructions Nos. 34 and 35. We have found no error committed in the court’s rulings on those instructions. Further, because the order granting defendants a new trial must be affirmed, we shall not pass upon the question as to whether plaintiff’s damages as assessed by the jury were excessive.

For the reasons herein given the order of the circuit court granting defendants a new trial is affirmed.

Order affirmed.

Burke, P. J., and Hebel, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Adolph C. Bydalek, Plaintiff in Error.
    Gen. No. 41,750.

      Opinion filed March 18, 1942.
    Rehearing denied April 1, 1942.
    Cameron Latter, James E. Daniels and Ode L. Rankin, all of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Julius L. Sherwin, Assistant State’s Attorneys, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a writ of error from a judgment upon the verdict of a jury in the Criminal Court of Cook County, under which defendant was sentenced to the penitentiary for a term of from one to five years and fined $1,000 for conspiracy. Defendant was indicted together with Gloodsell F. Henke, James Enssell and Joseph Kelly for conspiring with them to obtain money by forging and uttering a will of one Carl Krzysko, deceased, and thereby committing an illegal act injurious to the administration of public justice. Defendant Bydalek was tried alone and the principal witness for the State against him was the co-defendant Henke who was, at the time of the trial, a lawyer and had practiced in Chicago, Chicago Heights and Grant Park, Illinois, for a number of years.

Defendant urges that the verdict and judgment are against the manifest weight of the evidence; that the trial judge committed error by instructing the jury orally in violation of the Illinois statutes; that error was committed in limiting defendant’s cross-examination of Henke and in giving improper instructions; that the State’s Attorney made prejudicial statements to the jury, and that the court erred in overruling defendant’s objections thereto; and that the conviction rests on the uncorroborated testimony of Henke and should be set aside because of the errors. The State answers that this court cannot reverse the judgment on the evidence unless the proof is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt; that the trial judge with propriety directed the jury orally as to the forms of possible verdicts in the case; that defendant’s cross-examination was not limited; that the instructions given have been approved in the Supreme Court and that any question or instruction has been waived because the record does not show on whose behalf the instructions were given; and that the testimony of an accomplice alone can properly convict a defendant and that in this case there was ample corroboration of the testimony of Henke, the accomplice.

The defendant complains that the verdict and judgment are against the manifest weight of the evidence. I_i_i8 test is whether the charge in the indictment was proved beyond a reasonable doubt. Carl Krzysko died in Chicago Heights, Illinois in June 1938. He had come to this country from Poland 35 years before and settled in Kankakee County. It appears that he was related to the family of defendant Bydalek and spent his time in the beginning of his residence here, between the Bydaleks and a Johnson family; that he later moved to Chicago Heights wherein he roomed for many years with the family of William Liesenfelt and took his meals with the family of Peter Bantz; that at the time of his death his only living relations were in Kankakee County. Following the death of Krzysko, the defendant engaged Henke to represent the defendant and the Bydalek family in getting control of the estate. Henke and the defendant thereupon investigated the matter of defendant’s relationship with the decedent among friends and relatives of both the decedent and defendant. Following the investigation a petition was prepared, signed and sworn to by the defendant, asking'that letters of administration in the estate of Carl Krzysko be issued to him. Henke engaged an attorney in Chicago who presented the petition to the Probate Court of Cook County and from which, said letters of administration issued to Bydalek. Copies of the letters were obtained and Henke and the defendant began their search for the assets of the decedent’s estate in order to reduce them to the possession of Bydalek as administrator. Subsequently, a petition was filed in the Probate Court to remove the defendant as administrator, but, after a hearing thereon, the petition was denied. Henke and the defendant discovered that the estate of the decedent approximated $20,000, several times more than the amount they had anticipated. It appears from the evidence that the design for a spurious will had its origin in this discovery. Henke drew a false will which provided $10,000 for the defendant; various bequests for those who had a claim on his bounty by reason of blood relationship or friendship; and, in order to make the will look genuine, $1,000 for a sister of the decedent and certain of his nieces and nephews, possible heirs rumored to be still living in Poland; likewise a bequest to the church in Chicago Heights of which decedent was a member. The will appointed as executor Conrad Linder, one of the decedent’s closest advisers and friends who died prior to the drafting of the will; and as Linder’s successor, the defendant Bydalek with surety for executor’s bond waived. Henke obtained Russell and Kelly, residents of Chicago, to witness the spurious and forged will which was filed for probate on September 1, 1938 by Henke, who this time did not employ a correspondent in Chicago hut handled the matter in his own name. The will was never probated, for its validity was questioned, and the indictment here followed.

Henke says that he and the defendant conspired to make and forge the false will and that the latter, after some discussion, gave Henke directions with respect to the provisions of said will. Bydalek denies any guilt. He claims that Henke informed him that he, Henke, had represented Krzysko at one time and had drawn a will for him; that Henke later told defendant that he had located the will; that defendant believed everything Henke told him with reference to what he did in court and elsewhere, and that he relied upon Henke.

The will, subject of the indictments, is admittedly a forgery and the only question under this point is whether the evidence justified the verdict rendered. Henke is admitted by the State’s Attorney to be a scoundrel and perhaps a liar. Opposing counsel claim the defendant was a simple country man, the innocent dupe of the wily Henke. Several witnesses testified to Henke’s bad reputation and many to Bydalek’s good reputation.

On motion for a new trial and in this appeal, the defendant assigns error in the action of the trial court instructing the jury orally with reference to the form of their verdict in violation of the Civil Practice Act. It appears from the record that four" written forms of possible verdicts were given to the jury. On one appeared a direction in writing limiting, to the maximum provided by law as penalty for conspiracy, the amount of any fine assessed by the jury. The record does not disclose that any oral instructions were given. The trial court, according to the record, introduced with a few appropriate words, the forms of verdict read to the jury. There is nothing in the record to indicate that the trial court attempted to orally instruct the jury as to the law, as the trial court did in the case of Ellis v. People, 159 Ill. 337, on which the defendant relies. Direction as to the form of verdict is not an instruction on the law of the case. Illinois Cent. R. Co. v. Wheeler, 149 Ill. 525; Ill. Rev. Stat. 1941, ch. 110, sec. 192. [Jones Ill. Stats. Ann. 104.067]. Defendant’s counsel contends that the Illinois Central Railroad case cited hereinabove should not control because it was a civil case decided earlier than the Ellis case. The Illinois Central case though earlier, is not inconsistent with the Ellis case, and though the former was a civil proceeding, the rule for instructions is the same in civil and criminal proceedings. We find no error in this action of the trial court.

Complaint is also made by the defendant that his cross-examination of the accomplice Henke was unduly limited. He claims that he was not permitted to cross-examine Henke as to why Henke had a correspondent attorney in the intestate proceedings while Henke acted alone in the proceeding to probate the will. He refers this court to page 30 of the abstract wherein it appears that objection was made and sustained to a question directed to Henke on cross-examination and it also appears that following the court’s ruling on this question, the question was fully answered thereafter. The objection to and the ruling on the question was directed to its form and since the testimony sought was later developed, we find no prejudice to defendant. Defendant further complains of rulings on objections to questions at pages 36 and 37 of the abstract. The record shows that there was considerable discussion between counsel and the trial court following the rulings, as a result of which the main question objected to was withdrawn. Again the record shows that the testimony, sought by these questions, was given; that is, that Henke was dissatisfied with the distribution of certain fees allowed in the case. We are further directed to alleged errors in rulings on page 46 of the abstract, wherein objections were made to certain questions on the ground that the same had theretofore been answered. The objections were sustained and an examination of the record discloses that the questions had theretofore been asked and answered and required no repetition. We agree with counsel that in this case where the State’s principal witness is an accomplice, the defendant was entitled to full play in cross-examination, especially where such witness was the ingenious Henke. We believe, however, that defendant had every opportunity in cross-examination consistent with orderly and expeditious procedure. The defendant’s cross-examination of the witness Henke begins on page 128 of the record and continues to page 248 and is resumed and finished on page 250, and we find no limitation of the cross-examination prejudicial to the defendant’s case. We conclude, therefore, that this point is not sustained by the record.

The defendant further complains of alleged prejudicial argument to the jury by the attorney for the People. We have read the cases cited by the defendant in support of his point. In the Melnick case, 263 Ill. 24, wherein the remarks objected to are similar to those here, the court held that the trial court improperly overruled defendant’s objections to such remarks but the reversal of the case was not alone on such improper rulings. In the case at bar, however, the trial court sustained objections to the improper remarks and ordered them stricken. We cannot say, under all the circumstances in this case, that the argument complained of, prejudiced the jury against the defendant Bydalek.

The defendant complains of certain instructions. Instructions 9 and 10 he says are identical and by repetition unduly emphasize the rule stated therein. Instruction No. 10 is a much lengthier instruction than No. 9 and in addition to the paragraph stating the rule, subject of No. 9, contains other paragraphs some of which limit the meaning of the rule in the interest of the defendant and we believe remove any emphasis which might otherwise have been given such rule. Another objection to instruction No. 10, is that it is inconsistent with the theory of the State’s case. We consider that the instruction was justified by the evidence in the case, and properly given. Instruction No. 7 is complained of as having no basis in the evidence; that instruction, partially set forth in defendant’s brief, considered in its fullness, simply defines the crime charged in the indictment, and the giving of it was proper. We find, therefore, no error in the instructions given as complained of by the defendant.

ITenke was the principal witness for the State, but the evidence discloses that though the defendant had previously engaged reputable attorneys in the community for his private business, he engaged Henke in the Krzysko matter when he must have known of Henke’s unsavory reputation at the time; that following the search for assets of the Krzysko Estate, Henke asked for a specimen of decedent’s signature at the home of Peter Bantz and the defendant did not then inquire why the request was made and at the trial testified that he did not know why; that though he seemed indifferent to “Uncle Carl’s” welfare for years preceding the latter’s death, the defendant, following the search for assets, requested a photograph of “Uncle Carl”; that though he and Henke had heard rumors of a will soon after Krzysko’s death and had searched futilely together for a will, the defendant learned later that Henke had once drawn a will for Krzysko; that though he had discussed possible fees from Kryzsko’s estate prior to “Uncle Carl’s” burial, the defendant testified that he did not ask Henke what provisions were in the alleged will which Henke had since “found”; that defendant further testified that Henke would not discuss the will with defendant because of the attorney-client privilege, this, despite Henke’s obvious disregard of' professional ethics; that subsequent to the filing of the spurious will defendant signed a petition and an affidavit therein, in connection therewith not knowing the will was false, though he was the administrator in the intestate proceedings and in more or less constant association and discussions with Henke thereafter; that defendant also testified that he relied upon and believed in Henke during the period in which he must have known of the latter’s ill repute and that he was a “simple country man” despite his several years as owner of a tavern in Grant Park, Illinois.

Having in mind the suspicion with which Henke’s testimony should be regarded, but in consideration of Bydalek’s testimony, all viewed in the light of the reasonable inferences drawn from the other testimony in the case, we are of the opinion that the evidence sustains the verdict and judgment.

For the reasons herein given, therefore, the judgment of the Criminal Court is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.