author: Mr. Presiding Justice Eldredgb

text:
    Wabash Railway Company, Appellee, v. William Lindsey, Appellant.
    Gen. No. 8,695.
    Opinion filed January 16, 1933.

      Luther W. Adamson, for appellant.
    Homer Hall, Walter Bellatti and Paul D. Moriarty, for appellee; 1ST. S. Brown, of counsel.
   Mr. Presiding Justice Eldredgb

delivered the opinion of the court.

The Wabash Railway Company, appellee, filed its bill in the circuit court of Morgan county to enjoin the prosecution by appellant, William Lindsey, a resident of said Morgan county and State of Illinois, of a civil suit for damages for personal injuries against said railway company, pending at the time the bill was filed in the circuit court of Daviess county, State of Missouri, sitting at the City of Gallatin. A temporary injunction was issued, whereupon appellant filed a demurrer to the bill which was overruled and appellant abiding by his demurrer, the temporary injunction was made permanent and the cáse comes to this court on appeal to review the action of the chancellor.

It is alleged in substance in the bill that appellee was organized under the laws of the State of Indiana and operates its railway tracks in Indiana, Illinois, and numerous other States in the United States; that it carries passengers and freight and United States Mail for hire and under its contract with the United States Government, it must carry said mail with speed and dispatch or suffer large penalties on account of failure so to do; that it has complied with the laws of Illinois to authorize it to operate its railroad in this State and that its lines extend from Decatur, Macon county, Illinois, into and through the Village of Alexander, Morgan county, Illinois, into and through the City of Jacksonville, Morgan county, Illinois and to East Hannibal, Pike county, Illinois, and that it also operates its lines through other counties in Illinois, in all of which counties in said State it maintains railway stations, offices, freight houses and railway yards for the transaction of its business, and employs clerks, servants and employees, through whom legal service could at all times be had; that William Lindsey (appellant) was on November 29,1929, an employee of the railway company (appellee) and was a member of a section crew working upon said railway and was injured in a collision between a motor car operated by a gasoline engine and a vehicle at an intersection of a road crossing with said railway; that said Lindsey is a citizen and resident of said Village of Alexander and has been for 20 years; that said railway company is informed and believes and charges the truth to be, that prior to and at the time of the aforesaid accident, Lindsey’s attorneys were engaged in the practice of law in Kansas City, Missouri; that in some manner unknown to said railway company, Lindsey was induced to employ said attorneys and prosecute a claim for damages for said injuries and said attorneys were permitted to select a forum for the institution and trial of said suit in a place remote from the place of accident and far removed from claimant’s residence, where the railway company would be put to unnecessary and unjust hard-; ships in the production of its witnesses and would be at a serious disadvantage in the production of necessary documentary evidence to establish its defense; that in Jacksonville, Morgan county, Illinois, in which county said Lindsey resides, there are regularly held terms of the circuit court; that in each of the other counties in the State of Illinois, through which said railroad passes, there are regularly held terms of the circuit court annually and that in each of said counties there were numerous agents and employees upon whom service of summons could be had by said Lindsey in any suit brought by him to recover damages on account of his injuries, and that said facts were well known to Lindsey and to his attorneys; that on October 7, 1930, without any reason, except to harass and inflict unjust hardship and to secure an unjust and unfair advantage over said railway company, said attorneys instituted suit in Gallatin, Daviess county, Missouri, which is situated in the western part of Missouri, approximately 250 miles from Alexander; that said Town of Gallatin has approximately 1825 people, with meager hotel accommodations; that the railway company’s witnesses would have to travel approximately 200 to 275 miles from their homes in Illinois to Gallatin and that each witness would be compelled to consume approximately 24 hours in traveling to and from his home to said Gallatin; that said Lindsey and his attorneys knew of the disadvantage and burden to the railway company for the purposes aforesaid and that said suit was brought for the sole and only purpose of placing said burden on the railway company; that on information and belief it is charged that Lindsey and his attorneys conspired and agreed that they would select a forum in a small town remote from the State of Illinois and far removed from the place of accident and at a point where it would be difficult for the railway company to produce its material witnesses and evidence for the trial, and that in so doing the railway company would be at a disadvantage, and that rather than pay out larg'e sums of money necessary for transportation of its necessary witnesses, it would settle and compromise said claim and that in the event said claim was not settled, the railway company being unable to produce certain of its witnesses, a verdict would be rendered for said Lindsey; that Lindsey never resided in the county of Daviess and the State of Missouri and is without friends, associates or acquaintances in said locality, and that the institution of the suit in Daviess county was a scheme and device to force the railway company to compromise said claim; that the petition setting forth the pretended cause of action of said Lindsey charges that said motor hand car, by reason of the carelessness and negligence of the defendant and its servants and agents other than the plaintiff, was caused, suffered and permitted to collide violently with an automobile, and that the plaintiff does not allege therein more particularly wherein the defendant’s negligence lay, for the reason that the plaintiff was sitting with his back in the direction in which said motor hand car was going, etc.; that said charge of negligence is general and vague and the railway company cannot know or be advised as to what evidence will be produced on the trial by the plaintiff as to the specific acts of omission or commission constituting the negligence complained of; that the burden of preparing to meet such vague and indefinite charge of negligence is greater upon the railway company, when the forum is 250 miles from the scene of the accident, than it would be if brought at the home of William Lindsey; that said petition charges that the collision occurred “at a much used and greatly travelled road crossing” whereas, it is the contention of the railway company that the crossing was a private road, and said fact will be an issue on the trial of said case; in either event, the obligations, duties and rights of the railway with respect to said crossing are controlled by the laws of Illinois and not by the laws of Missouri; that it will be an unjust hardship upon the railway to be compelled to have the laws of the State of Illinois determined by the courts of Missouri and to transport to Missouri necessary witnesses to testify as to the laws of the State of Illinois; that the railway company will be unable to secure the personal attendance of numerous witnesses before the jury in Missouri because there is no process by which such witnesses could be compelled to leave the State of Illinois to testify in Missouri; that among the witnesses whose testimony would be of great value to the railway company are:

“ (a) Witnesses who knew of the origin and nature of the road crossing and tracks of the railway at which the said accident occurred.

“ (b) Witnesses who were personally present at the time and place of the accident; all of whom reside in or near Morgan County, Illinois.

“(c) Witnesses who know the duties, responsibilities and care required to be used and exerted by the operator of said motor hand car and by William Lindsey, as an occupant of said car under the rules, regulations and instructions promulgated by the railway, and witnesses who know that such rules and regulations were well known to William Lindsey; all of whom reside in Morgan County, Illinois.

“(d) Witnesses familiar with the weather conditions at the time and place of accident, including the official weather bureau records of the United States Department of Agriculture kept at Jacksonville, Illinois ; all of said witnesses residing in the counties of Morgan and Sangamon.

“(e) The doctors and surgeons who attended William Lindsey in Jacksonville, Illinois, and Decatur, Illinois, all of which witnesses live in Illinois.

“(f) Witnesses who observed the progress of the recovery of William Lindsey, all of whom reside in Morgan County, Illinois.

“(g) The fellow employees of William Lindsey who observed the progress of his recovery and his ability to work when he returned to work on the 16th day of March, 1930; all of whom reside in Morgan County, Illinois.

“(h) The witnesses' who attested a certain release hereinafter mentioned; all of whom reside in Alexander, Morgan County, Illinois.” That on the 5th day of April, 1930, at Alexander, Illinois, said Lindsey, for a good and valuable consideration, executed and delivered to said railway company a full and complete release under seal of the cause of action upon which said suit was brought in Missouri, a copy of which release is attached to the bill and made a part thereof; that under the laws of Illinois said release is a complete bar to said action and could not be impeached unless the plaintiff was deceived or tricked into signing the same when he thought he was signing something else; that there was no deceit or trickery practiced; that under the law of Missouri said release can be impeached and overcome for alleged fraud or mistake not amounting to deceit or trickery as to the character of the instrument executed; that under the law of Illinois 12 jurors are required while under the law of Missouri nine jurors can render a verdict; that papers and records not in the possession and control of the railway company are necessary for its proper defense; that the commissioner authorized to take depositions is not under the laws of Missouri authorized to compel the production of such books, papers and records which comprise among other things hospital records, X-ray pictures of plaintiff’s legs and anides, weather reports and-documents affecting the status of said road crossing as a public or private road; that said railway company should not be compelled to present its case to a jury in Missouri on written depositions, but should be entitled to try it where it can compel the personal attendance of its witnesses; that said railway company has a good and meritorious defense to said action; that said action so brought in Missouri, in view of the. facts set forth, violates the public policy of the State of Illinois, and is against morals, natural justice and the legal interests of the railway; that said action in Missouri is set for trial February 4, 1931, and that unless restrained from doing so, said Lindsey will leave the jurisdiction of the courts of Illinois, and continuously remain in Missouri, thereby evading the process of the courts of Illinois; that the cost of transporting said witnesses and their maintenance would he $20 to $30 per day and if said witnesses were required to stay one week the total cost would be in excess of $2,000; that if said suit were tried in Illinois, 80 per cent of said costs would be saved to the railway company, etc.

In 1876 in the case of Harris v. Pullman, 84 Ill. 20, the following doctrine was announced: “There is no question as to the right to restrain a person, over whom the court has jurisdiction, so that he can be proceeded against, by a personal attachment, from commencing suit within a foreign State; and the English practice was to allow the prosecution of suits already commenced to be thus enjoined. But it has been held in this country, that, after suits are commenced in one of the States, it is inconsistent with inter-State harmony that their prosecution shouldbe controlled by the courts of another State. Mead v. Merritt, 2 Paige 404; Bicknell v. Field, 8 id. 443.” Since then the same question involved in the case at bar has been before the courts of this State on several occasions. It was very aptly said by the court in Motile & Ohio R. Co. v. Parrent, 260 Ill. App. 284: ‘ ‘ Practically all of the courts agree that a resident of a State may be enjoined, in a proper case, from prosecuting a suit in the courts of another State. The courts differ on the question as to what constitutes a proper case for the exercise of such jurisdiction. No general rule can be laid down as to when the court ought to enjoin a party from prosecuting a suit in a foreign jurisdiction. Each case must be ruled by its own facts. 14 R. C. L. 414; 32 C. J. 116. That is recognized by all the courts.” In Royal League v. Kavanagh, 233 Ill. 175, the court held that there is no question as to the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign State as the State has the power to compel its own citizens to respect its laws even beyond its own territorial limits and to restrain a citizen from prose-outing in the courts of a foreign state an action against another which will result in a fraud or gross wrong or oppression, but it was also held: “But the court will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice. It is not enough that there may be reason to anticipate a difference of opinion between the two courts, and that the courts of the foreign State would arrive at a judgment different from the decisions of the courts in the State of the residence of the parties. (Carson v. Durham, 149 Mass. 52.) It is not inequitable for a party to prosecute a legal demand against another in any forum that will take legal jurisdiction of the case, merely because that forum will afford him a better remedy than that of his domicile. To justify equitable interposition it must be made to appear that an equitable right will otherwise be denied the party seeking relief. Thorndike v. Thorndike, 142 Ill. 450.

“A person has the right to select such tribunal having jurisdiction as he chooses for the prosecution of his rights, and the court which first obtains jurisdiction will retain it. Such jurisdiction cannot be defeated because the defendant may prefer another tribunal in which he supposes the decision will be more favorable to him. ’ ’

In the case of Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, 384, it was alleged in the bill as the basis for an injunction many of the reasons appearing in the bill here under consideration: (1) that if the cause was tried in Missouri the complainant would be deprived of a right of trial by jury as guaranteed to the citizens of Illinois in that the Constitution of Missouri provides that in trials of civil cases three-fourths of the members of the jury concurring can render a verdict; (2) that it is the intention of the defendant by the institution of a suit in Missouri to harass and annoy the complainant and obtain an unjust advantage to which the defendant is not entitled under the laws of Illinois; (3) that in order to adequately present its defense it will be necessary for complainant to produce a large number of witnesses, some of them being public oficiáis and employees, others being medical experts, and others being business men and other persons not concerned in the litigation and strangers to complainant; (4) that all the witnesses who complainant knows would be necessary and procurable for its defense are residents of Illinois; (5) that some persons whose testimony is necessary will .be unwilling witnesses and others wholly indifferent and it will be impossible to procure the attendance at the trial in Missouri of some of these witnesses; (6) that to procure the attendance of those who will be willing to go will put complainant to great and unnecessary expense and cause great inconvenience to the witnesses themselves; (7) that it will be impossible to procure and offer certain books and records in the possession of third parties and transport them to Missouri. The court in that case held: “A party has the legal right to bring his action in any court which has jurisdiction of the subject matter and which can obtain jurisdiction of the parties. . . . While the doctrine announced in the Kavanagh case, supra, is now applied in every jurisdiction of the Union, this power is sparingly exercised, and it is only where it clearly appears that the prosecution of an action in a foreign State will result in a fraud, gross wrong or oppression, that a court of equity will interfere with the general right of a party to press his action in any jurisdiction which he may see fit and in as many of thein as he chooses and restrain him from the prosecution of such a suit. . . . Appellant has the legal right to bring his action against appellee on this policy of insurance in the State of Missouri, and this right will not be interfered with unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injury. The bare fact that a suit on this policy has been begun and is now pending in this State, in the absence of equitable considerations, furnishes no ground to enjoin appellant from suing his claim in a foreign jurisdiction, although the cause of action is the same and arises out of the contract of insurance involved in the litigation in the circuit court of Cook county. (Ambursen Hydraulic Construction Co. v. Northern Contracting Co., 140 Ga. 1; Mutual Life Ins. Co. v. Harris, 96 U. S. 588.) Before the prosecution of the second suit in a foreign jurisdiction will be enjoined the propriety and necessity of confining the litigation to the court in which the first suit is instituted must appear. That it may be inconvenient for appellee to go to a foreign State to try the suit, or that the maintenance of two suits will cause double litigation and added expense, is insufficient cause for an injunction against prosecuting the suit proposed to be brought in the State of Missouri and does not justify any interference by a court of equity. Freick v. Hinkly, 122 Minn. 24; Mutual Life Ins. Co. v. Harris, supra; Mason v. Harlow, 84 Kan. 277; Ambursen Hydraulic Construction Co. v. Northern Contracting Co. supra. . . . The principal contention made by appellee is, that the bringing of the suit against it in the State of Missouri, both parties being citizens of the State of Illinois, would be a violation of the right guaranteed to it by section 5 of article 2 of the constitution of 1870, which is, in part, as follows: ‘The right of trial by jury as heretofore enjoyed, shall remain inviolate. ’ Appellee treats and regards this as a right guaranteed to citizens of Illinois. It is a right guaranteed to litigants who may become involved in litigation in the courts of Illinois, whether such litigants be citizens of Illinois or elsewhere. It is not until a citizen of Illinois becomes a litigant in the courts of Illinois that this guaranty contained in the bill of rights applies to him, and should his adversary be a citizen of some other State or country the same guaranty applies to him as well. . . . In its capacity as a defendant to a suit upon a policy of insurance issued by it appellee is no more a citizen of the State of Illinois than it is of the State of Missouri. It is doing business in each of these States. . . . Appellee relies upon the line of cases which hold that the bringing or prosecuting such suits will be enjoined where it appears the suits are brought or threatened to avoid or defeat the operation of the laws of the State where both parties to the suit reside. . . . Appellee is simply complaining- here that if it is compelled to defend in the State of Missouri it will not be entitled to the same procedure in the trial there which is followed in the courts of this State. This is not depriving it of any substantial right that would result in wrong or oppression. ’ ’

Although it is not alleged in the bill in the case at bar that the Wabash Railway Company operates its railway in the State of Missouri, it seems to be conceded by both parties that such is the case and there are some averments in the bill which tend to confirm that fact. It is alleged in the bill that appellant instituted its suit against appellee in the court in Daviess county, Missouri, and there is a further averment that said case has been set for trial. This implies that personal service was obtained in that State. Obviously, unless appellee did in fact do business in the State of Missouri, then no court in Missouri would obtain jurisdiction of the person of appellee and no suit could be maintained in said State against appellee and there would be no occasion or ground for restraining the prosecution of a suit that could not be prosecuted. Courts cannot take judicial notice that certain railroads run through certain States and unless there exists the inference that the Wabash Railway Company operates its line through the State of Missouri or, at least, transacts business in that State through its agents therein, then the bill would be bad for the reasons above stated. If there exists the inference that it does do business in the State of Missouri and has agents there on whom service has been obtained, then it is as much a resident of Missouri as it is of Illinois or Indiana or any other State through which it operates or in which it does business, as it is subject to the jurisdiction of the courts in any State in which it operates its railroad or maintains its agent for the transaction of business therein. In accordance with the principles of law as adopted by the courts of this State, in our opinion the chancellor erred in overruling the demurrer to the bill and in granting the permanent injunction; therefore, the decree of the circuit court is reversed and the cause remanded with directions to dissolve the injunction and to sustain the demurrer to the bill.

Reversed and remanded with, directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    George Meece, Jr., By Ruth O. Meece, his Next Friend, Appellee, v. Holland Furnace Company, Appellant.
    Gen. No. 8,698.

      Opinion filed January 16, 1933.
    Bracken, Livingston & Murphy, for appellant.
    Daniel D. Tuohy and Maurice B. Stern, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

George Meece, Jr., appellee, who sues by Ruth O. Meece, his mother and next friend, recovered a judgment in an action on the case in the sum of $4,000 against Holland Furnace Company, appellant.

In the declaration it is charged that the defendant was possessed of a certain automobile which was being driven through its duly authorized agent on the premises known as 1312 West Locust street, Bloomington, Illinois, and that the said George Meece, Jr. was then and there a minor of the age of seven years and was on and about the premises aforesaid; that the defendant through its agent was then and there driving said automobile on and about said premises in a backward direction and did so in such a careless and negligent manner that he ran into and struck the plaintiff with great force and violence; that the defendant, in driving the said car, through its agent, did not ascertain whether anyone was on the premises aforesaid, and the premises was the home of the plaintiff; that it was the defendant’s duty to ascertain whether the premises were clear and free of any occupants therein and to use due care and caution; that the defendant did not regard its duty in that behalf or exercise due care and diligence, but so negligently operated and propelled said motor vehicle that by reason of said negligence said motor vehicle of said defendant ran into and struck the plaintiff who was knocked down and injured, etc. To this declaration the defendant filed four pleas. The first plea was that of the general issue; the second plea denied that defendant was possessed of said automobile ; the third plea averred that the automobile was not at said time in the care, charge and management of a servant or agent of the defendant; the fourth plea denied that said automobile was then and there used by any servant or agent of the defendant in and about the course of defendant’s business with the knowledge and authority of the defendant. Subsequently an additional special plea was filed which averred that the plaintiff ought not to have or maintain her aforesaid action against the defendant because the said motor vehicle was in the control and management of George Meece, Sr., who is the father of George Meece, Jr. at the time of the alleged injuries, and that the home of said George Meece, Jr. is at 1312 West Locust street, Bloomington, Illinois, and is furnished and maintained by said George Meece, Sr. A demurrer was sustained to this last special plea.

The facts as developed by the evidence prove that the plaintiff George Meece, Jr., was the son of George Meece, Sr., who was driving the car in his own yard at his own home and on his own premises when the accident happened. The evidence further shows that on these premises was a garage used by the father of plaintiff for the purpose of housing his automobile and that the plaintiff was accustomed to play in this garage and kept his toys there which his father well knew, and that while his father was backing the automobile into the garage it struck his son, the plaintiff, broke his leg and otherwise bruised him. The automobile was owned by the father of plaintiff and was his own private property. The accident happened between 7 and 7:30 o ’clock on the evening of July 8, 1931, and the father of plaintiff had come home for the purpose of eating his supper.

The defendant, the Holland Furnace Company, sold and installed furnaces and George Meece, Sr., within a certain territory assigned to him by the Holland Furnace Company, was working under what was termed a heating engineers’ contract, a salesman’s job. His duty was to go among the people and get them to buy furnaces. He was the sole judge of his hours of work and when and where he worked. He received no salary but a commission on any contract he might procure. He could use an automobile in his work if he so desired. The defendant did not own the automobile which he used nor pay for its upkeep. His means of locomotion in the progress of his work was entirely in his own discretion, and the witness Jones, who was the local manager of the defendant in Bloomington and a witness placed upon the stand for the plaintiff to testify in his behalf, stated positively that none of his expenses in the prosecution of his work were paid by the defendant. His own testimony in regard to this subject is evasive and uncertain. He was asked the following question: “Q. How were you paid on July 8th? A. I couldn’t say. Part of the time we were on drawing accounts and part of the time we were on straight commission. ’ ’ It would have been a very simple matter to prove whether he had a drawing account for his expenses with the defendant or not, and in the face of such an answer we must conclude that the testimony of plaintiff’s witness Jones, the general manager, that he had no such drawing account and the defendant did not pay any of his expenses in the prosecution of his work is true. He testified that he intended to go to Chenoa that evening after supper to try and get a contract from a prospect living in that city. The defendant had no control whatever over the plaintiff’s father in the prosecution of his work nor the method of locomotion which he might take in the prosecution of such work and was only interested in the results thereof. Under such circumstances he was a subcontractor and not a servant. An independent contractor is one who renders service in the course of his occupation representing the will of the person for whom the work is done, only as to the result of his work and not as to the means by which it is accomplished. La May v. Industrial Commission, 292 Ill. 76; Aldrich v. Tyler Grocery Co., 206 Ala. 138; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574; Howitt v. Hopkins, 220 N. Y. S. 462; Dohner v. Winfield Wholesale Grocery Co., 116 Kan. 237; McCraner v. Nunn, 129 Kan. 802, 284 Pac. 603.

If it be conceded for the sake of argument that the father of plaintiff was an employee of the defendant at the time of the accident and that said accident happened while he was in the discharge of his duties as such employee, the question arises, Has a minor child a cause of action against the employer for injuries received through the negligence of his own father! It is a rule of common law based upon public policy that a minor child cannot sue his father in tort unless a right of action is authorized by statute. 46 C. J. 1324, sec. 159; 20 R. C. L. 631, sec. 36; Matarese v. Matarese, 47 R. I. 131, 131 Atl. 198; Elias v. Collins, 237 Mich. 175; Small v. Morrison, 31 A. L. R. 1135; Wick v. Wick, 192 Wis. 260; Foley v. Foley, 61 Ill. App. 577. It is also an established rule of law that a servant is liable to his master for damages which the latter has been compelled to pay to third persons because of the negligence of the servant, where the master is not considered at fault. 39 C. J. 1313. Under these circumstances, can the defendant be liable to the plaintiff upon the grpund of respondeat superior ? In the case of Hayes v. Chicago Tel. Co., 218 Ill. 414, the suit was brought against the City of Chicago and the Chicago Telephone Co. Upon the trial the City of Chicago was found not guilty and the Chicago Telephone Co. was found guilty and damages assessed at $3,500. The evidence disclosed that the negligence which caused the injury, if any, was that of the City of Chicago. The court held: “In the trial below the City of Chi-' cago, which, under appellant’s contention, occupied the position of agent, was found not guilty. No appeal was taken from that judgment, and it must be deemed to have settled the fact that the City of Chicago was not liable for the death of appellant’s intestate. It necessarily follows that if the agent charged with the commission of the act complained of be not guilty, a judgment could not be recovered against appellee, the principal, upon the ground of respondeat superior. The judgment in this case in favor of the City of Chicago is a complete bar to an action against the appellee for its negligence in exercising any permissive rights appellee may have granted it. To make appellee liable upon the theory under discussion, a case must have existed against the city. ’ ’ To the same effect are Anderson v. West Chicago St. R. Co., 200 Ill. 329; Larson v. Hines, 220 Ill. App. 594; Bunyan v. American Glycerin Co., 230 Ill. App. 351. In the last case cited the court held: “In this State the law is well settled that where an action on the case is brought against two defendants and one of them is liable only on account of the rule of respondeat superior for the negligence of the other, if the latter is found not guilty such finding is a complete bar to the action against the former. Hayes v. Chicago Tel. Co., 218 Ill. 414; Anderson v. West Chicago St. R. Co., 200 Ill. 329; Antrim v. Legg, 203 Ill. App. 482; Larson v. Hines, 220 Ill. App. 594; Billstrom v. Triple Tread Tire Co., 220 Ill. App. 550. The weight of authority outside of Illinois seems to be to the same effect. Doremus v. Root, 23 Wash. 710, 54 L. R. A. 649; Hayes v. Chicago Tel. Co., 218 Ill. 414, 2 L. R. A. (N. S.) 764; McGinnis v. Chicago, R. 1. & P. Ry. Co., 200 Mo. 347, 9 L. R. A. (N. S.) 880; Southern Ry Co. v. Harbin, 135 Ga. 122, 30 L. R. A. (N. S.) 404; Hobbs v. Illinois Cent. R. Co., 171 Iowa 624, L. R. A. 1917E 1023. ’ ’ This doctrine has been applied to cases where the facts are similar to those in the case at bar. The same principle which supports the rule that a minor child cannot sue its parent in tort applies to the relationship of husband and wife,,, neither of which can sue the other for a tort in the absence of a statute authorizing such action. In the case of Riser v. Riser, 240 Mich. 402, the defendants, Martin L. Biser and his wife, owned an automobile and invited the plaintiff and her husband to ride therein. On the return trip plaintiff’s husband drove the automobile and through his negligence ran into a ditch causing injuries to his wife. She sued Martin L. Biser and his wife who were the owners of the car. The court held: “Plaintiff might not recover in tort damages against her husband for her injuries occasioned by his negligence. See Harvey v. Harvey, 239 Mich. 142, where the matter is considered at length. As plaintiff may not recover against her husband, the driver of the car, she cannot recover against the owners, defendants, for whom he drove.” In the case of Horgan v. Boston Elevated Railway, 208 Mass. 287, the plaintiff sued the defendant for damages for false arrest. After he was arrested he voluntarily asked that he be discharged without arraignment. The court, after stating that the law of that State was that if one arrested voluntarily asked to be released without arraignment and his discharge follows, he impliedly waives any claim for damages which otherwise he might have had against the officer, held further: “If for the reasons stated the plaintiff could not prevail against the officer, or the officer’s fellow servant, he cannot recover against the defendant.” In the case of Alabama G. S. R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, the court said: “Obviously, whenever the master, whether a corporation or an individual, is guilty of a tort through the misfeasance or willfully wrongful conduct of a servant, the servant is for the same conduct personally guilty and liable. . . . And, vice versa, when the conduct of the servant does not render him personally liable, it cannot impose liability upon the master under the doctrine of respondeat superior.” In the case of Maine v. Maine & Sons Co., 198 Iowa 1278, the plaintiff was injured while riding in an automobile with her husband who was driving the same and by his negligence in so doing. The court held: “While so much is not conceded by appellant, we may assume, for the purpose of the case, that the evidence showed that, at the time of the accident, Kenneth Maine was .engaged in the business of appellant, and was acting within the scope of his employment; that the corporation, through its officers, had consented to appellee’s accompanying her husband in the company’s car; that the accident and injury to appellee were proximately caused by the negligence of Kenneth Maine in the respects alleged in the petition; and that appellee was not guilty of contributory negligence. That proof of such facts would ordinarily warrant a recovery against the employer is, of course, plain. The fundamental question in the case is whether the fact that the employee for whose negligence the employer would be liable is the husband of the person injured, will defeat her recovery.

“It is, as, of course, it must be, conceded that a wife could not recover at common law against her husband for a tort committed by him against her person. 30 Corpus Juris 714. . . . The common-law freedom of the husband from liability to the wife for a tortious or negligent injury to her person does not rest merely upon a lack of remedy, — the inability of the one to sue the other. It arises out of the very relationship itself, and the incapacity to sue is but an incident to it. . . . The liability of the employer for the negligent acts of his servant is based upon the familiar doctrine of respondeat superior. Unless the servant is liable, there can be no liability on the part of the master. This has been repeatedly held in cases where both were sued and the verdict was against the employer only. ... Where there is no right of aption in the wife for a wrongful or negligent personal injury inflicted upon her by her husband, there can be no liability therefor on his part; and, since there is no liability on his part, we see no escape from the conclusion that his employer cannot be made to respond in damages to her for his negligent act.” In the case of Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, the plaintiff was injured through the negligent driving by her husband of an automobile that was the property of the defendant and was being operated in the conduct of its business by her husband as an employee and agent of the defendant, who also knew that she was accompanying her husband and consented thereto. The court, after stating the law that a wife cannot sue her husband in tort, held: “If recovery may be had by the wife against the employer, and he in turn may recover from the husband-employee, then the family wealth remains the same save as diminished by the expenses of the litigation. It would seem that to permit a recovery against the employer results simply in countenancing an encircling movement where a frontal attack upon the husband is inhibited. Maine v. Maine & Sons Co., 198 Ia. 1278.

“Suits between spouses should be confined as heretofore to those having contractual elements or where there is direct statutory authorization, and suits by a spouse against third persons grounded upon the tort of the other spouse, and without contractual elements, fall in the same category.”

The courts of some States apparently hold a contrary doctrine, notably Schubert v. Schubert Wagon Co., 249 N. Y. 253, but the decision in that case appears to rest largely upon the rights of married women under the New York statute. In most States which have passed upon this question, the courts thereof have held that the statutes in their respective States enlarging the rights of married women should be construed as applying only to her contractual rights and should not be invoked as an aid to sustain actions of this character. We deem it unnecessary to discuss this phase of the question for the reason that our attention has not been called to any statute of any State which even attempts to enlarge such rights of minor children. No cause of action exists in favor of the plaintiff: against the father in the case at bar and the defendant could not recover against him for the damages caused by his negligence, and under the plain principles of law, if the servant is not liable, then the principal camiot be unless he was directly connected with or directed the actions of the servant and was thereby primarily liable as an active joint tort-feasor. The fact that if such actions are permissible the gates would be open to unlimited fraud should also have its influence.

Also, if the father had been in fact the servant of defendant, the defendant would not be liable unless the father was at the time of the injuries acting within the scope of his employment. In the case of Clark v. Wisconsin Cent. Ry. Co., 261 Ill. 407, the court held: “The fact that Tollinger was employed to work certain hours for defendant did not, of itself, render defendant liable for ,his every negligent act. When not engaged in his line of employment but in pursuing purposes of his own the master would not be liable for his negligence, even though he was at the time using instrumentalities furnished him by the master to perform the duties of his employment.” In support of this doctrine the court cites with approval the rule laid down in Shear-man & Redfield on Negligence, “If the act complained of be committed by the servant while at liberty from the service of the master and while pursuing his own interests exclusively, there can be no question of the master’s freedom from liability, even though the injury would not have been committed without the facilities afforded the servant by his relation to the master.” In Johanson v. Johnston Printing Co., 263 Ill. 236, the rule is announced as follows: ‘1 Outside of the scope of his employment the servant is as much a stranger to his master as any third person, and an act of the servant not done in the execution of services for which he was engaged cannot be regarded as the act of the master. If the servant step aside from his master’s business for some purpose wholly disconnected with his employment the relation of master and servant is suspended. The act of the servant during such interval is not to be charged to his master. This doctrine is established by substantially all of the authorities. (Higgins v. Western Union Telegraph Co., 156. N. Y. 75, 50 N. E. Rep. 500; Standard Oil Co. v. Anderson, 202 U. S. 215.) The same rule has often been recognized by this court. (Pawlak v. Smith, 233 Ill. 401; Kehoe v. Marshall Field & Co., 237 id. 470; Harding v. St. Louis Nat. Stock Yards, 242 id. 444.) ” The defendant had no control of appellee’s father as to the hours in which he should work, the method he pursued in doing it, when or how he should do it, or the instrumentalities he should use in its performance. The defendant did not own the automobile nor did it require appellee’s father to use an automobile in the conduct of the business. The accident happened on the premises owned or possessed by appellee’s father which was his home. Appellee’s father while he was at home was not acting or pursuing any duty that he owed to the defendant and the defendant had no control of any kind, direct or implied, over his actions while he was at home on his own premises. The backing of the car into the garage was not an act which was-done for the benefit of the defendant but for the protection of the alleged employee’s own property with which he could do as he pleased, and his act in driving the car while it was on his own premises into his own garage cannot by any stretch of the imagination, under the circumstances, be held to come within the scope of his employment. If the defendant is to be held liable under the facts in this case, then it would also have been liable if the father had kicked the child and broken his leg, as his own legs were as much an instrumentality in the business in which he was employed as his own automobile.

What we have said disposes of many of the errors assigned in regard to the giving and refusing of instructions ; however, some announcing other propositions of law require comment. Instruction No. 2 given at the request of the plaintiff stated that if the jury believed from the evidence that the plaintiff at the time of the accident was a child between the ages of 7 and 14, then the question of his being capable of contributory negligence is an open question of fact and is for the jury to determine, taking into consideration his age, intelligence, capacity and experience. One objection to this instruction made by appellant is that it omits the words “under similar circumstances.” It is intimated in the United Breweries Co. v. O’Donnell, 221 Ill. 334, that the omission of such words would make the instruction erroneous. Another objection thereto is the fact that there was no evidence whatever in the record as. to the age of appellee. Plaintiff’s. instruction No. 4 is as follows: “The Court instructs the jury that if you find for the plaintiff you will be required to determine the amount of his damages. In determining the amount of damages plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should, take into consideration all the facts and circumstances as proven by the evidence before them, the nature and extent of plaintiff’s physical injuries and resulting from the collision in question, if any, so far as the same are shown from the evidence; his suffering in body and mind, if any, resulting from such physical injuries and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case, he has sustained or will sustain by reason of such injuries, disfigurement of his person as a result of his injuries, if any, and may find for him such sums as in the judgment of the jury under the evidence and the instructions of the Court in this case, will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages and injuries, if any, are claimed or alleged in the declaration. ’ ’ The declaration charged that plaintiff was obligated to pay $500 in and about endeavoring to be healed of his said wounds. And the court, over the objection of the defendant, permitted evidence to be introduced to the effect that the doctor’s fees for his services to appellee were $300 and that the hospital charges were $102 and that a nurse was required for about three weeks. In numerous cases it has been held by the Appellate Courts of this State that where a minor child resides in the household of his father, who is entitled to the custody and services of the child, and who is legally accountable for its support and maintenance, the parent having in no way lost his right of recovery of the items of damages accruing to him upon his child being injured, it is error in an action brought by the child for personal injuries to permit proof of the expenses necessarily incurred in curing the injuries as the parent, and not the child, may recover such expenses. Chicago & Alton R. Co. v. Lammert, 12 Ill. App. 408; Heimsoth v. Anderson, 16 Ill. App. 151; Baltimore & O. S. W. Ry. Co. v. Keck, 89 Ill. App. 72. The inclusion of such items of expenses would not bar the parent from recovering them in a different suit and thus there might be a double recovery. The same principle has been held in an action by a minor for personal injuries where it has been sought to recover damages for loss of ability to labor during minority, in the absence of any evidence from which it can be reasonably inferred that the father had emancipated such minor and relinquished his right to the minor’s earnings. Donk Bros. Coal & Coke Co. Retzloff, 229 Ill. 194; American Car & Foundry Co. v. Hill, 226 Ill. 227. The rule is thus stated in 31 C. J. 1114, sec. 252: ‘ ‘ Since the parent is entitled to the services and earnings of the child so long as the latter is legally under his custody or control, ordinarily an infant suing for personal injuries cannot recover for the impairment of his earning capacity during infancy, or for loss of time, or for expenses in curing his injuries, when, and only when, he is under the control of his parents. ’ ’ The instruction specifically refers to the damages claimed in the declaration and in view of the fact that the court admitted proof of the expenses mentioned the jury would have every reason to believe that the plaintiff was entitled to recover the father’s expenses in attempting to have him cured. The admission of this evidence and the giving of this instruction was’ error.

The judgment of the circuit court is reversed and this court makes the following findings of fact: (1) we find as a fact from the evidence that George Meece, Sr., at the time the acts of negligence complained of were committed by him was not a servant of defendant ; (2) that if such servant, he was not at that time acting within the scope of his employment.

Beversed with findings of fact.


text:
    J. C. Haines, Appellee, v. T. W. Doss, Appellant.
    Gen. No. 8,703.
    Opinion filed January 16, 1933.
    W. A. Doss and Carl I. Glasgow, for appellant.
    Green & Palmer, for appellee; William G. Palmer, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This appeal involves á trial of the right of property, instituted by appellee, J. C. Haines, against appellant, T. W. Doss, in the county court of Piatt county.

On December 22, 1930, Haines sold to William H. Dubson an automobile for the purchase price of $575.50 under a written conditional sales contract, wherein the purchaser, Dubson, paid in cash to Haines $255.50 and agreed to pay the $320, balance due on the purchase price, in two instalments, one of $220 on the first day of March, 1931, and the other, $100, on the first day of September, 1931. In this conditional sales contract it was provided that the title to, ownership and right of possession of said automobile was retained by and vested in Haines, the seller, until the entire purchase price shall have been paid in full in money, at which time the ownership of the automobile shall pass to the purchaser. Dubson never made the payments in the amounts and at the times provided for in the contract but did make several small payments thereon up to December 9, 1931, and paid the interest on the balance of the amount due up to March 4, 1932.

On April 19,1932, appellant, Doss, recovered a judgment by confession in the county court of Piatt county against said Dubson in a sum exceeding $400 and on July 19, 1932, caused an execution to be levied upon said automobile to satisfy said judgment.

The last payment under the conditional sales contract became due September 1, 1931, and Haines, appellee, permitted Dubson to retain possession of the car for 10 months thereafter and for seven months after the last payment was made thereon. It has been frequently held that if a mortgagee permits a mortgagor to retain possession of chattel property embraced in a chattel mortgage an unreasonable length of time after the mortgage becomes due the lien provided thereby will expire as to subsequent purchasers and judgment creditors of the mortgagor. Bower v. Popp, 241 Ill. App. 568; Albert Pick Co. v. Spoor, 212 Ill. App. 612; Dayton Scale Co. v. General Market House Co., 248 Ill. App. 279. Chattel mortgages are required to be recorded and the public are charged with notice thereof. Conditional sales contracts are secret or private liens of which the public can generally have no knowledge. We can see no reason why the secret liens of conditional sales contracts should be endowed with greater potency than liens provided by chattel mortgages. To hold that the vendor in a conditional sales contract should be protected with a perpetual lien until the article sold is completely paid for would open the doors to unlimited fraudulent transactions and might extend its protection to the vendor and also to the vendee in such a contract against other creditors of the vendee for at least the period provided by the statute of limitations. It is our opinion that a vendor should assert his rights under a conditional sales contract within a reasonable time after the expiration of the time of the final payment thereunder.

Counsel for appellee rely largely upon the case of Silverthorne v. Chapman, 259 Ill. App. 289. However sound the reasoning in that case may be, the rule there announced is inapplicable to the facts in the case under consideration. In that case the proofs show that while defaults in some of the payments provided by the contract had been made, yet the time for making the final payment under the contract had not expired when the execution was levied upon the automobile. The court in that case held: “In the instant case the last instalment had not become due under the terms of the contract when the seizure of the automobile was made, and according to the provisions of the conditional sales agreement it was not incumbent on Silverthorne to exercise any of his rights until the full maturity of the debt.” In the present case the maturity of the debt had expired 10 months prior to the levy of the execution and in our opinion appellee, having failed to exert his rights under the contract with Dubson for such a period of time, is now estopped from doing so as against the rights of appellant as a judgment creditor.

Appellant is the wife of W. A. Doss who is an attorney-at-law and acted as her attorney in taking the judgment against Dubson. Dubson’s son, three days before the execution was levied upon the automobile, told W. A. Doss that Haines, appellee, had a mortgage on the car and wanted his money and asked W. A. Doss to loan him the money with which to pay Haines. It is now claimed by appellee that appellant was charged with notice that Haines had some rights in the car through the information received by her husband as her attorney. Appellee had no mortgage on the car, and, while a client is chargeable with notice of all material facts coming to the knowledge of her attorney in connection with the subject of his employment, the erroneous information he received from Dubson’s son would not be sufficient to charge her with notice of appellee’s claim by virtue of the conditional sales contract.

The judgment of the county court is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Merle Stump, Plaintiff in Error.
    Gen. No. 8,720.

      Opinion filed January 16, 1933.
    J. D. Templeman, for plaintiff in error.
    Oscar E. Carlstrom, Attorney General, J. J. Neiger, Assistant Attorney General, and Wallace A. Walker, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

The case has been transferred to this court by the Supreme Court.

Plaintiff in error pleaded guilty to an information charging him with selling liquor contrary to the laws of this State, whereupon he was sentenced to confinement in the Illinois State Farm for a period of six months and to also pay a fine of $300 and costs and after the expiration of said term of imprisonment to stand committed to said farm until the whole of said fine and costs shall have been worked out by him at the rate of $1.50 per day. While plaintiff in error has assigned 14 errors on the record he states in his brief and argument that he relies upon only four of them to reverse the judgment.

The first error presented is that the statute relating to the Illinois State Farm is unconstitutional. Cahill’s St. ch. 23, ¶¶248-254. This statute has been frequently held to be a valid enactment (People v. Welch, 331 Ill. 20; People v. Landers, 329 Ill. 453; People v. Callicott, 322 Ill. 390); however, this court has no jurisdiction to pass upon the constitutionality of a legislative enactment.

The second error is that the county court had no jurisdiction to sentence plaintiff in error to the State Farm for the reason that said institution is not a penitentiary. This proposition has been decided adversely to such contention. People v. Callicott, supra.

The third error assigned is to the effect that the court erred in sentencing the defendant to work out a fine and costs. This proposition has also been decided in the negative. People v. Lavendowski, 329 Ill. 223; People v. Welch, supra.

The fourth error on which plaintiff in error relies is that the county court was without jurisdiction to sentence defendant to the State Farm as the judgment failed to find or state the age of the defendant. There is ho such error of fact assigned on the record and the question is not properly before us for review; however, the record contains no bill of exceptions and it will be presumed the court found the age of the defendant and properly sentenced him. People v. Simmons, 299 Ill. 201; People v. Liedecker, 258 Ill. 395; People v. Lavendowski, supra. The failure to prove defendant’s age will not work a reversal unless it appears from the record he was prejudiced thereby. People v. Rogers, 303 Ill. 578.

The judgment of the county court is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    Charles H. Crawford, Administrator of the Estate of Charles Crawford, Deceased, Defendant in Error, v. Bauer-Johnson & Company, Plaintiff in Error.
    Gen. No. 8,631.

      Opinion filed January 16, 1933.
    James P. Nielson and C. H. Wood, for plaintiff in error.
    John E. Wall, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case Charles H. Crawford, as administrator of the estate of Charles Crawford, deceased, brought suit against Bauer-Johnson & Company, plaintiff in error herein, in the circuit court of Adams county for the benefit of the next of kin of the deceased, under the Injuries Act, Cahill’s St. ch. 70, to recover damages for pecuniary injuries resulting to the next of kin by the death of the deceased which the declaration charges was caused by the negligence of a servant of the plaintiff in error in driving a truck, owned and operated by the plaintiff in error, along Maiden Lane street in the City of Quincy.

The plaintiff in error filed the plea of the general issue to the declaration, and also a special plea denying ownership,, control, management and operation of the automobile truck, and the employment of the operator of the truck. A jury trial of the case resulted in a verdict finding the plaintiff in error guilty, and assessing the damages at $1,500. The plaintiff in error made a motion for a new trial which was denied; and thereafter also made a motion in arrest of judgment, which was also denied, and a judgment was rendered upon the verdict. A writ of error is now prosecuted for reversal of the judgment.

There is no bill of exceptions in the record and therefore the only matters that are properly before this court for consideration are those which are disclosed by the common law record. The only question presented for review is based upon the denial of the motion in arrest of judgment; and it is contended by counsel for the plaintiff in error that the declaration does not state a cause of action under the Injuries Act, Cahill’s St. ch. 70. In support of this contention several special grounds are urged, namely: That there is no allegation in the declaration of the date when the alleged accident occurred; also that there is no allegation in the declaration or in any count thereof, that the suit was commenced within, one year after the death of the deceased.

In reference to the contention as to the date of the accident, it is pointed out that the date of the accident appears in both the first and second counts of the declaration; and by proper and necessary intendment it connects up with averments in the declaration relating to the facts upon which the defendant in error’s cause of action is based. The first count recites that, ‘ ‘ Charles Crawford, who brings this action in his representative capacity as Administrator of the Estate of Charles II. Crawford, deceased, plaintiff, by John E. Wall, his attorney, complains of Baner-Johnson & Co., a corporation, defendant, of a plea of trespass on the case. For that whereas there was on to-wit June 23,1930, and for a long time prior thereto, a certain public thoroughfare within the corporate limits of the City of Quincy, Illinois, running in an easterly direction from to-wit: Third Street, to to-wit, Fourth Street, in said City of Quincy, and commonly known as Maiden Lane Street . . . and over which part of said public thoroughfare, used for vehicular traffic, as aforesaid, the defendant by and through its servant then drove a large number of automobile trucks. And the plaintiff avers that on the south side of said thoroughfare and abutting the said south sidewalk, there then was a large tract of ground upon which a public school building stood that occupied approximately one-third of said tract, the remainder thereof being used by school children for playground purposes, etc. . . . And on the east end of said north sidewalk of the public thoroughfare abutting on said Fourth Street on the east and said Maiden Lane Street on the south, there then stood a 'small building running, to-wit, thirty feet east and west which was flush with said Maiden Lane Street, while immediately west of said building there then was a concrete driveway running north and south and gradually rising upward from said Third Street to said Fourth Street in said City five feet above the surface of said sidewalk, which concrete driveway was clearly visible and easily seen by persons driving and operating automobile trucks or other vehicles while they were moving easterly from said Third Street to said Fourth Street in said City of Quincy, Illinois, and children riding small wagons up and down said concrete driveway were likewise visible for a distance of more than fifty feet west thereof, aA%d were in plain view of the drivers of automobile trucks of the defendant while they moved in cm easterly direction upon said Maiden Lane Street, etc. . . . And the plaintiff avers, that at the time of the happening of the casualty to the plaintiff’s intestate, as hereinafter mentioned, and for one hour continuously thereto, plaintiff’s intestate, Charles H. Crawford, who was then ahoy four years of age, was pushing a small child’s wagon to the top of said concrete driveway and then riding on the same down the slope of such driveway over the said sidewalk and out into that portion of said Maiden Lane Street used for vehicular traffic, as aforesaid, all of which ivas known to the said defendant and its servants in charge of its said automobile trucks, or by the exercise of ordinary care would have been known to them and at the same time a great number of children were playing in said street and on said sidewalks of said Maiden Lane Street, etc. . . . By reason of the premises it then and there became the duty of the defendant by and through its servants in charge of said automobile trucks, to exercise reasonable care in the management of said trucks and to exercise a like degree of care in anticipation of the presence of said children on said Maiden Lane Street at the place aforesaid and to exercise a like degree of care in anticipation of the presence and action of the plaintiff’s intestate on'said concrete driveway, as aforesaid; and to exercise a like degree of care in keeping a lookout ahead and guarding against the likelihood of said intestate while riding down said concrete driveway in the manner aforesaid. . . . Yet the defendant not regarding its duty in the premises then and there by and through its servants so in charge of said automobile trucks as aforesaid so carelessly, negligently and improperly drove and managed its said trucks at the place aforesaid that by and through said carelessness and negligence it failed to keep a lookout ahead; and then and there failed and neglected to anticipate the presence of the plaintiff’s intestate playing upon said concrete driveway, as aforesaid, and the likelihood of said intestate while so playing there, in getting out into said Maiden Lane Street in the way of said trucks, and thereby being seriously injured; so that the plaintiff’s intestate who was then four years of age and legally not chargeable with contributory negligence, while riding down said concrete driveway, in the manner aforesaid, was carried in his said child’s wagon across said sidewalk and out into said Maiden Lane Street in the way of one of said automobile trucks of said defendant in charge of one of its servants, and by reason of said carelessness of said defendant, was run over by said truck and killed.”

We are of opinion that the foregoing allegations, which are substantially the same in both counts of the declaration, fix both the time and place of the fatal injury and death of the deceased.

Another contention of counsel is that there is no allegation in the declaration, that the suit was commenced within a year after the death of the deceased. We deem it sufficient to say on this point that such an allegation was not necessary inasmuch as a bar by limitation to an action is a matter of defense. If it were a fact that the suit was not brought within the period limited by the statute, ■ such fact should and could have been pleaded in defense, but no question of limitation to bar the defendant in error’s right of recovery was raised by the plaintiff in error’s pleas. The record discloses that not only was the action brought within a year after the deceased was killed according to the averments of the declaration, but also that the trial as well as the judgment rendered were within the year.

With reference to the absence of an affirmative allegation in the declaration to the effect that the next of kin of the deceased exercised due care for the safety of the deceased, it is clear that no legal inference of contributory negligence on the part of the next of kin can reasonably be drawn from the fact that deceased was playing with his wagon at the time and place and under the circumstances described in the declaration; and hence an affirmative allegation of due care on the part of the next of kin was not necessary as a matter of law.

. For the reasons stated, we conclude that the motion in arrest of judgment was properly denied; and the judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Eva Tidrick, Plaintiff in Error.
    Gen. No. 8,715.
    Opinion filed January 16, 1933.
    J. D. Templeman, for plaintiff in error.

      Oscar E. Carlstrom, Attorney General, J. J. Neiger, Assistant Attorney General, and Wallace A. Walker, State’s Attorney, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an information was filed against the plaintiff in error, Eva Tidriek, charging her with violation of the State Prohibition Act, Cahill’s St. ch. 43, ¶ et seq., namely, by the unlawful sale of intoxicating liquor. The plaintiff in error entered a plea of guilty to the charge contained in the information and was sentenced by the court to confinement in the State Reformatory for Women for six months; and to pay a fine of $200; and it also was ordered that she be committed to the reformatory until the fine assessed against her and the costs be paid.

The sufficiency of the information was not questioned; nor was there any question raised as to the form of the judgment in the county court. The judgment recites that the defendant was arraigned, waived her right to a trial by jury, and that she entered her plea of guilty to the charge contained in the information; and that she was admonished as to the consequences of her plea of guilty before her plea was accepted; and that thereupon her plea was accepted; that the court found her age to be over 18 years. She was thereupon sentenced to the State Reformatory for Women as above stated.

The record in this case does not contain any bill of exceptions, and therefore only such matters are properly before this court for review as are disclosed by the common law record.

After judgment and sentence, the plaintiff in error sued out a writ of error to the Supreme Court; and the Supreme Court passed upon the main question involved in the cause, People v. Pointer, 348 Ill. 277. It appears from the opinion of the court that by stipulation of all the parties, three other cases were consolidated with this case; and all the cases were considered and determined by the court under the stipulation, upon the abstracts and briefs filed in the Tidriek case, and transferred to this court. The opinion of the court, transferring thé consolidated cases, is as follows:

“Nos. 21175, 21176, 21177 and 21184 have been considered together. The abstracts and briefs were filed in People v. Tidriek, No. 21177. The plaintiffs in error were separately charged "by informations in the county court of McDonough county with selling intoxicating liquor contrary to the Illinois Prohibition Act. -Pleas of guilty were entered and a judgment in each case was rendered sentencing the respective plaintiffs in error to six months’ imprisonment in the State Reformatory for Women and to pay the costs. Bessie Lyons Stroh was also ordered to pay a fine of $300 and to stand committed until the fine and costs are fully paid. Eva Tidriek was ordered to pay a fine of $200 and to stand committed until the fine and costs are fully paid. Writs of error were sued out from this court to review the respective judgments.

“There are thirteen assignments of error, only a few of which are argued in the briefs. The ostensible reason for suing out the writs of error from this court is to question the validity of the several acts of the General Assembly which provide for the commitment of a female convicted of a misdemeanor to the State Reformatory for Women. Briefly stated, the point is made that by section 5 of ‘An act to establish and provide for a State Reformatory for Women,’ and by clause 4 of section 3 of the Parole Act (Smith’s Stat. 1931, ch. 38, par. 803), every female person above the age of eighteen years adjudged guilty of an offense punishable by imprisonment in the penitentiary shall be committed to the State Reformatory for Women. It is contended that inasmuch as this provision deals only with felonies it makes the institution a penitentiary. It is pointed out that the same clause further provides that every female over the age of sixteen years adjudged guilty of any offense whose sentence or commitment is for six months or longer may be committed to the State Reformatory for Women. Thus female felons and misdemeanants are to be-committed to the same penal institution. A felony is an offense punishable by death or imprisonment in the penitentiary. Every "other offense is a misdemeanor, punishable by a fine or imprisonment in a penal institution other than a penitentiary.

“It is argued that a female convicted of a misdemeanor cannot be committed to an institution to which felons are committed, for the reason that a prison cannot be a penitentiary, for one and not a penitentiary for another. Whether or not the point is well taken cannot be determined by us in this proceeding, because the validity of said statutory provisions was not called in question in the trial court. No motion for a new trial or in arrest of judgment was made. No objection was made to any ruling, finding or judgment of the court. Under section 118 of the Practice Act a writ of error will not issue from this court in criminal cases below the grade of felony unless the validity of a statute or a construction of the constitution is involved, and even then this court will take jurisdiction only when the validity of the statute or a construction of the constitution has been presented to the trial court for decision. People v. Maffei, 315 Ill. 226.

“Inasmuch as the validity of the statute was not presented to the trial court in any of the.cases here involved this court is without jurisdiction to review the judgments, and the causes will be transferred to the Appellate Court for the Third District. ’ ’

The Supreme Court disposed of all the questions raised by the plaintiff in error concerning the legality of the commitment of the plaintiff in error for the commission of the offense to the State Reformatory for Women. The only matter which remains for consideration and determination in this court is the validity of the order which the county court annexed to the sentence for the purpose of continuing the commitment in the reformatory of the plaintiff in error until the fine assessed against her and the costs were paid.

In reference to this assignment of error, it must be pointed out, that section 2 of the Parole Act, Cahill’s St. ch. 38, ¶ 796, provides: “No person shall by any court be committed to the penitentiary, reformatory or other State institution for the recovery of a fine or costs.” In the case of People v. Stavrahas, 335 Ill. 570, the court said in reference to the provision above quoted:

“The evident intention of the legislature by said provision of the statute was to prevent a defendant’s sentence to the penitentiary, reformatory or other State institution being extended by compelling him to submit to further imprisonment to pay his fine and cdsts. This is shown to be the true construction of that section by reason of other provisions of the Criminal Code.”

We conclude, therefore, that the order extending the imprisonment in the reformatory of the plaintiff in error for the purpose of compelling the payment of the fine and costs assessed against her is in conflict with section 2 of the Parole Act, and therefore void.

For the reasons herein set forth, the judgment and sentence committing the plaintiff in error to the State Reformatory for Women as punishment for the offense of which she stands convicted, is affirmed; but the order of commitment until the fine assessed against her and costs are paid, is reversed.

The mandate of affirmance and reversal applies to each of the other three cases, which are consolidated with this cause; and which in this court bear the numbers 8714, 8716 and 8717.

Affirmed in part and reversed in part.


author: Mr. Justice Shurtleff

text:
    Home Building & Loan Association of Paris, Illinois, Defendant in Error, v. William F. Gaumer et al., Plaintiffs in Error.
    Gen. No. 8,663.
    Opinion filed January 16, 1933.

      O’Hair & McClain, for plaintiffs in error.
    Dyas & Redman and Jones, McIntire & Jones, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

By this writ of error plaintiffs in error seek to reverse a decree of the circuit court of Edgar county, ordering foreclosure of a trust deed which defendant in error, Home Building & Loan Association, of Paris, Illinois, the complainant in the suit, held as collateral security for a loan made by it to one Edgar E. Gregg.

On December 21, 1908, William F. Gaumer and Ella Gaumer, his wife, being indebted to E. E. Gregg in the sum of $6,000, made and delivered to said E. E. Gregg, a promissory note of that date for said sum, payable to the order of themselves in 10 years after date, with interest at six per cent per annum, payable on January 1, 1909, and then semiannually. This note was duly indorsed by the makers and delivered to said Edgar E. Gregg who became the legal owner and holder therof. A copy of this note was attached to the bill of complaint.

To secure the payment of said note, said William F. Gaumer and Ella Gaumer executed and delivered to Edgar E. Gregg, trustee, a trust deed in the usual form dated December 21, 1908, conveying a part of lot 44 in the original town (now city) of Paris, Illinois. Said trust deed was duly filed for record and recorded in the office of the recorder of deeds of Edgar county, Illinois, on December 24, 1908. A copy of this trust deed was attached to the bill of complaint.

On January 15, 1912, said William F. Gaumer and Ella Gaumer, his wife, conveyed the real estate above mentioned to one William H. Bull, and in the deed of conveyance the grantee assumed and agreed to pay the indebtedness secured by said trust deed. On or about the 15th day of November, 1916, the conservator of said William H. Bull, by virtue of an order and decree of the county court of Edgar County, sold said real estate at a judicial sale and Edgar E. Gregg purchased said premises for the amount of his debt represented by the note and trust deed, and received a conservator’s deed therefor.

On January 1, 1919, said Edgar E. Gregg, then being the owner of the real estate covered by the trust deed, signed an extension agreement, extending the time of payment of the said note and trust deed until the first day of January, 1929.

On December 31, 1927, said E. E. Gregg borrowed from the complainant, Home Building & Loan Association, of Paris, Illinois, the sum of $5,000 and to secure said loan, gave to the complainant his promissory note of that date for said sum, payable one year after date. A copy of this note was attached to the bill of complaint. To secure the payment of said note, said E. E. Gregg also delivered to the complainant, as collateral security, the note and trust deed executed by the Gaumers and also the extension agreement executed by Gregg, above mentioned.

E. E. Gregg died testate on June 12, .1930, and The First National Bank and Trust Company, of Paris, Illinois, was appointed administrator with the will annexed of his estate. Said Gregg left surviving him as his only heir at law Evelyn A. Gregg, his sister, who was also named as sole legatee and devisee under his will.

Gregg’s note to the Home Building & Loan Association was not paid when due and the bill in this case was filed to foreclose the trust deed which he had pledged to the complainant as collateral security.

The above facts were alleged in the bill of complaint, in the amended plea filed and were stipulated on the hearing before the special master. It was further stipulated that the amount due on the note from Gregg to the Home Building and Loan Association for principal and interest was the sum of $4,820.04, and that the amount due and owing on the Gaumer note secured by the trust deed was $7,222.12.

William F. Gaumer and Ella Gaumer were made defendants and, filed a plea setting up the statute of limitations and no relief was decreed against them.

The First National Bank and Trust Company, as administrator with the will annexed of the estate of Edgar E. Gregg, deceased, The First National Bank and Trust Company of Paris, Illinois, individually, Roscoe Rives, sheriff of Edgar county, Illinois, successor in trust, and Evelyn Gregg also filed a plea. The Terre Haute National Bank and Trust Company of Terre Haute, Indiana, asked and was granted leave to adopt the plea filed by the last named defendants. The First National Bank and Trust Company individually is not interested in this appeal. It was originally a party defendant to the bill for the reason that it held a second mortgage on a part of the real estate described in the deed of trust and upon which it was stipulated that the deed of trust was no lien for the reason that that particular real estate continued to be owned by the Gaumers and the trust deed was barred by the statute of limitations as to them. Roscoe Rives, as sheriff of Edgar county, Illinois, was made party defendant to the bill for the reason that the trust deed provided that in case of the death of the trustee named therein, then the acting sheriff of Edgar county should be successor in trust. The Terre Haute National Bank and Trust Company was not made a party defendant to the bill but it intervened and adopted the plea of the administrator, as above stated, as a creditor of the estate of Edgar E. Gregg, deceased, but it does not appear from the stipulation or from any other part of this record that it is a creditor or what interest it has, if any, either in the estate of Edgar E. Gregg, deceased, or in this litigation. Later, the First National Bank and Trust Company, as administrator, the First National Bank and Trust Company, individually, Boscoe Bives, sheriff, and Evelyn Gregg filed an amendment to their plea. The original plea of these parties, as amended, being deemed insufficient by the complainant, the same was set for hearing by the court and upon the hearing was overruled, and then an amended plea was filed by the First National Bank and Trust Company, as administrator, O. M. Sizemore, sheriff, Evelyn A. Gregg and Terre Haute National Bank and Trust Company. No other plea or answer was filed by any of them. O. M. Sizemore, mentioned in said plea, had succeeded Boscoe Bives as sheriff of Edgar county, at the time the amended plea was filed. The complainant filed a replication to this amended plea.

The cause was referred to a special master, who found the facts as above stated and recommended that the complainant have a decree of foreclosure for $5,120.04, the same being the amount due on the note of Gregg to the complainant, together with a solicitor’s fee of $300, authorized by the trust deed. Objections and exceptions to the special master’s report being overruled, a decree was entered' ordering that The First National Bank and Trust Company, of Paris, Illinois, as administrator with the will annexed of the estate of Edgar E. Gregg, deceased, pay to the complainant within 20 days the sum of $5,120.04 and costs, and that in default thereof 'the premises be sold.

The only proofs in the record consist of the so-called extension agreement, executed by Edgar E. Gregg in his lifetime, as follows:

“Paris, Illinois, January 1st, 1919

“The undersigned hereby covenants that he is the legal owner of the real estate conveyed to Edgar E. Gregg, Trustee, by a trust deed dated December 21, 1908, made by William F. Gaumer and Ella Gaumer, his wife, and given to secure the payment of a note or bond for the sum of $6,000, payable January 1st, 1919 to the order of Themselves and by them indorsed and delivered upon which note or bond it is hereby acknowledged there is due and unpaid the sum of $6,000 of principal money; and in consideration of the extension of the time for the payment thereof, the undersigned hereby promises and agrees to pay the principal sum due on said note or bond at the office of E. E. Gregg, Paris, Illinois, on the first day of January, 1929, and also the interest thereon at the rate of six per cent per annum, in semi-annual payments during said term of extension, according to the tenor and effect of the ‘extension coupons’ hereto attached; and all conditions, covenants and agreements contained in said trust deed are hereby continued in force and ratified, and this agreement shall bear the same relation thereto and be construed therewith in the same manner as the original note or bond hereby extended; and in case of default in payment of any of said ‘extension coupons’ or in case of non-payment of taxes on said real estate, or breach of any of the covenants contained in said trust deed, it shall be optional with the legal holder of said note or bond to declare said principal sum immediately due and payable.

Edgar E. Gregg.”

and a stipulation in the record as to the devolution of the title of the lands, the trust deed indebtedness, the loan made by Gregg from the complainant on December 31, 1927, and that at the time of making said loan Gregg transferred and delivered to the complainant the above mentioned note and trust deed of the Gaumers and the extension agreement.

It was further stipulated: “6. That the said note of the said Edgar E. Gregg to the Home Building and Loan Association of Paris, Illinois, is past due and unpaid, and that the amount due on said note for principal and interest is the sum of $4,820.04.

“7. That by resolution of its board of directors the complainant has authorized its attorneys to file the bill of complaint in this cause to foreclose the said trust deed executed by William F. Gaumer and Ella Gaumer, his wife.

“8. It is agreed that if the Court should find upon the hearing upon the bill and the pleas of the defendants William F. Gaumer, Ella Gaumer, Fred Rhoads, trustee, Propst Lumber Company, a corporation of Paris, Illinois; First National Bank and Trust Company of Paris, Illinois, administrator with the will annexed of the estate of Edgar E. Gregg, deceased, and the First National Bank and Trust Company of Paris, Illinois, Roscoe Rives, Sheriff of Edgar County, Illinois, successor in trust, Evelyn Gregg and Terre Haute National Bank and Trust Company, in favor of the complainant and against said defendants, and that the note executed by the Gaumers and the trust deed was not paid prior to its delivery by the said Edgar E. Gregg to the complainant, and was not merged in the fee simple title, and the force and effect were not destroyed, and the same are held valid, that in such case there is a default, and the amount due, according to the terms of said instrument, is $7,222.12, including principal, interest and solicitor’s fees.

“9. That said Edgar E. Gregg died testate on or about the 12th day of June, 1930, and that the First National Bank and Trust Company of Paris, Illinois, is the duly appointed, qualified and acting administrator with the will annexed of the estate of said deceased; that said Edgar E. Gregg left surviving him as his only heir at law and as the sole legatee and devisee under his said will, Evelyn A. Gregg, his sister.

“10. It is further stipulated and agreed that the mortgage mentioned in the bill of complaint is not a lien on that portion of the real estate described in the bill as parts of lots Nos. 55 and 56 in the original town, now City of Paris.

“11. It is further stipulated and agreed that on or about January 15, 1912, the said William F. Gaumer and Ella Gaumer, his wife, then being the owners of the said real estate described in the bill of complaint as a part of lot No. 44 in the original town, now City of Paris, Illinois, conveyed the fee simple title thereof to one William P. Bull, and that the purchaser in and by said deed of conveyance assumed and agreed to pay the amount of said mortgage indebtedness.

“12. It is further stipulated and agreed that on or about the 15th day of November, 1916, by virtue of an order and decree of the County Court of Edgar County, Illinois, B. H. Pinnell, conservator for the said William P. Bull, sold the said lot No. 44 at judicial sale, and that the said Edgar purchased said premises for the amount of said mortgage indebtedness of which he was then the legal holder and owner, and that the said Edgar E. Gregg paid no money or other consideration for said premises, and that he received a conservator’s deed from the said B. H. Pinnell for the same.”

The court found a decree establishing the indebtedness of Gregg to the complainant in the sum of $5,120.04, and decreed that the administrator of the Gregg estate should pay said sum within 20 days and that in default of payment the said Gaumer mortgage be foreclosed and the lands sold, etc. It was further ordered that the defendants, and all persons claiming by, through or under them since the commencement of this suit, be forever barred and foreclosed from all equity of redemption and claim of, in and to said mortgaged premises, or any part thereof, if not redeemed according to law, etc. There was no decree entered against the Gaumers, except as above set out.

The plaintiffs in error have brought the record to this court, by writ of error, for review.

There is much contention in the briefs as to the merger of the Gaumer trust deed title with the title obtained by Gregg through the probate court in the estate of "William H. Bull, deceased. Bull, in purchasing the lands from Gaumer, assumed and agreed to pay the mortgage debt. Gregg, in purchasing the lands at the sale by the conservator of the Bull estate, bid the amount of the mortgage debt for the lands and received a conveyance in fee therefor without making any payment, but the bid and purchase canceled the mortgage debt. William H. Bull and his estate were thereby relieved from the assumption of the mortgage debt made by Bull in his lifetime with the Gaumers. This transaction also, made on November 15, 1916, relieved the Gaumers from the payment of the mortgage indebtedness as evidenced by the note and trust deed indebtedness executed in 1908, and the indebtedness having been fully paid the trust deed became a dead pledge. By the terms of said instrument the said trustee, Gregg, had covenanted to reconvey the said lands to the said William E. Gaumer and Ella Gaumer, their heirs or assigns. If the covenants of the trust deed had been carried out, Gregg, trustee, would have reconveyed to Gregg, absolute owner. The payment of the Gaumer indebtedness left no virtue in the mortgage or trust deed indebtedness to execute. So far as the Gaumer indebtedness is concerned, by the original note and trust deed the statute of limitations had fully run on December 21, 1928, 10 years after the note became due, and so far as the Gaumers were concerned the obligation became defunct and was ended. Gregg had no power to give it life as to anyone other than himself, possibly by way of an equitable mortgage, good between complainant and himself. Tn 1916, when Gregg purchased the land at conservator’s sale, he agreed to pay the mortgage debt as the purchase price of the land and it was payable to himself. The relationship is fully described in vol. 40, Corpus Juris, page 650, as follows: “Bights are said to be merged when the same person who is bound to pay is also entitled to receive. This is more properly called a confusion of rights or extinguishment. When there is a confusion of rights and the debtor and creditor become the same person, there can be no right to be put in execution; but there is an immediate merger. ‘Merger’ is said to be the equivalent of confusion in the Boman law, and, when used with reference to demands, indicates that, where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights, which extinguishes both qualities; whence, also merger is often called ‘extinguishment.’ ” This rule is elucidated in Donk Bros. & Co. v. Alexander & Taussig, 117 Ill. 330, 338, where the court say: “Abbott, in his Law Dictionary, vol. 2, title ‘Merger,’ says: ‘Merger is the equivalent of confusion in the Boman Law, and (when used with reference to demands), indicates that where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence, also, merger is often called extinguishment.’ Bouvier, in his Dictionary, vol. 2, title, ‘Merger,’ under the head of ‘Bights,’ says: ‘Bights are said to be merged when the same person who is bound to pay is also entitled to receive. This is more properly called a confusion of rights, or extinguishment. When there is a confusion of rights, and the debtor and creditor become the same person, there can be no right to put in execution.’ The same rule is recognized in Pomeroy’s Equity, vol. 2, secs. 789, 790. The extinguishment is complete at law, though in equity, under certain circumstances, a merger or extinguishment will be prevented.” The same rule is also laid down in Clark v. Glos, 180 Ill. 556, 566.

Whether the circumstances in this case would permit a merger in equity does not arise upon this record, as defendant in error made no such case by its bill. It presented a bill to foreclose a mortgage indebtedness executed by the Graumers, and upon which it averred that the said William F. Graumer and Ella Graumer were liable upon said note to defendant in error in the full sum of $6,000 and the unpaid interest. This is not in accordance with the proofs. Defendant in error cannot make one case by its bill and a different case by its proofs. (Butter v. Brown, 205 Ill. 606; Rice Co. v. McJohn, 244 Ill. 264; Lewis v. Lewis, 316 Ill. 447.) In Letvis v. Lewis, supra, the court held: “Relief can be granted only in accordance with the allegations of the bill, sustained by proof. A decree cannot be rendered upon facts shown by the evidence which would warrant relief, unless those facts are alleged in the bill. Higgins v. Higgins, 219 Ill. 146.”

Whether defendant in error has an equitable mortgage or not is not before the court in this case to decide. What the rights of the plaintiffs in error would be as against an equitable mortgage as distinguished from a regular, recorded mortgage, is not involved in this case. It is sufficient to hold that the testimony submitted does not establish the case set out in defendant in error’s bill. It follows that the decree of the circuit' court of Edg'ar county is reversed and the cause remanded for such further proceedings as may be taken, not inconsistent with the views set out in this opinion.

Reversed and remanded.