text:
    John Flis, Administrator of the Estate of Bruno Flis, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 31,803.
    1. Negligence — attractive nuisances on private property and on public streets. The policy of the law to require a trespassing child to make out a very clear ease of attractive nuisance on private property does not apply to a child, having a right to be on a street, who may be attracted to a tar boiler placed on a street by a city.
    2. Negligence — question for jury whether tar boiler on public street was attractive nuisance. Where a city places on a public street a tar kettle for boiling tar for street repairs, and a 5-year-old boy is killed by tar from the tilting of the kettle through his play, hold the question whether the kettle was an attractive nuisance was for the jury and that their verdict for plaintiff’s intestate should be sustained.
    3. Negligence — necessity of proving all the grounds alleged. A plaintiff alleging several acts of negligence in his declaration is not requited to prove all of them but only enough to make out a case.
    4. Negligence — contributory negligence of young child. A boy five years old is incapable of such conduct as will constitute negligence.
    5. Negligence — hoy as trespasser in street. A child killed while playing on a public street by an alleged attractive nuisance, a tilting tar boiler, is not a trespasser.
    6. Negligence — sufficiency of evidence of parents’ care for the safety of child. Where a city places on a public street a tar kettle for boiling tar for street repairs near the home bf a 5-year-old boy who is killed by tar from the tilting of kettle through his play, evidence that his father had closed a gate leading to the street with a hook four feet above the ground and then returned to painting his house; that the mother was engaged in housework; that the boy was playing in the yard five minutes before the accident, and that the father had instructed the child to remain off the street and play iu the yard, is sufficient to sustain a finding that the parents used ordinary care for the boy’s safety prior to the accident.
    7. Death by wrongful act — evidence that death was caused by injury. There is evidence that a boy died in consequence of injuries he received at the time a tilting tar kettle deposited boiling tar on him, where the attorney for the defendant admits the death of the boy and that the burns he received at the time of the accident caused his death, and the father testifies that the boy died on the day after the accident.
    Appeal by defendant from the Superior Court of Cook county; the Hon. L. P. Harriss, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 27, 1927.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, and Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
    John H. Kay, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

John Flis, administrator of the estate of Bruno Flis, deceased, appellee, hereinafter called the plaintiff, sued the City of Chicago, a municipal corporation, appellant, hereinafter called the defendant, in an action on the case to recover damages for the benefit of the next of kin for the alleged wrongful death of plaintiff’s intestate. The case was tried before the court, with a jury, and a verdict was returned finding the defendant guilty and assessing the plaintiff’s damages at $5,500. Judgment was entered on the verdict and this appeal followed. The record discloses that the City of Chicago had been repairing spots in the street pavements in the vicinity of Forty-first street and Albany avenue and that on August 9, 1924, at the ■intersection of these streets the repair gang had a portable iron tar kettle — or boiler, as some witnesses call it — about four or five feet high and three feet in diameter. The kettle rested on two wheels that were about two and one-half to three feet high. “It had a bar to hitch up to when it was drawn.” It had a little smokestack. There was a handle attached to the kettle that extended outward, and to keep the boiler in an upright position and stationary a stick or iron bar was placed underneath the handle. This stick or bar was the only means by which the kettle was held in an upright and stationary position. Without the support of the stick or bar it would tip over. There were no guards or barriers around it and there was no one watching the kettle at the time of the accident. The foreman of the gang testified that “at the time of the accident no one was at the kettle — I will admit that.” The defendant contends that there were barricades at the intersection in question to stop traffic on the street. According to the plaintiff’s evidence there were no barricades at the street intersection at the time of the accident and several of the defendant’s witnesses testified that they were unable to say positively whether the barricades were there at that time. It is admitted that there were no barricades to prevent persons from leaving the sidewalks and going upon the street. At the locus in quo many children of immature age played upon the streets. Witnesses for the defense admitted that young children were attracted to the kettle and played around it; that they would climb up on the wheels and put sticks into the tar; that on several occasions children were chased away from the kettle but that when the tar was cold the men in charge of the kettle did not object to children playing around it. Witnesses for the plaintiff testified that boys touched the handle of the kettle once in a while; that they would “stick around the kettle or watch the men work”; that children would pick up lumps of tar and throw them into the kettle; that children would chop up tar, break it into pieces and throw it,into the kettle. At the time of the accident there was a fire at the bottom of the kettle, smoke was coming out of the smokestack, and 50 gallons of tar were being boiled in the kettle. The plaintiff’s intestate, Bruno Flis, a child of five years of age, with his younger brother left the sidewalk and went to the kettle. Bruno took hold of the handle and began to swing on it. Then he went back to the sidewalk and stayed there a few seconds. Then he walked back to the kettle, took hold of the handle and began to swing on it again. The stick supporting the handle fell down or was kicked down by the boy and he fell to the pavement. The kettle tipped over and the tar poured over him. His younger brother tried to pull him out of the tar and a neighbor ran out of a store and picked up Bruno and took him to the sidewalk. He died the next day. Two witnesses for the plaintiff testified that the foreman of the gang, about the time of the accident, was asleep on the steps of a house located a few doors from the place of the accident. The foreman denied that he was asleep on the steps at the time of the accident, but he admitted that he might have been sitting there the day before the accident.

The defendant contends that the verdict of the jury cannot be sustained on the theory of an attractive nuisance, and cites in support of his contention Szymczak v. Schlinger Bros. Co., 197 Ill. App. 585, and Newman v. Barber Asphalt Paving Co., 190 Ill. App. 636. The number of so-called attractive nuisance cases has increased greatly in Illinois during the past ten years, but in nearly every case where the question has been'passed upon by the upper courts the locus in quo was privately owned property and the child injured or killed a trespasser. In the present case the accident happened in a public street and the deceased was not a trespasser at the time he was injured. (Deming v. City of Chicago, 321 Ill. 341; Stedwell v. City of Chicago, 297 Ill. 486.) In the recent case of Holmberg v. City of Chicago, 244 Ill. App. 505, 514, the court said: ‘‘ Many physical conditions on a highway might exist which would be attractive and dangerous to children, and a ground for liability in case of injury, which would be looked upon as entirely innocuous if on private property.” In a trespass case involving an alleged attractive nuisance, the plaintiff seeks to excuse the trespass on the ground that there was an attractive nuisance on the premises of the defendant and it is the policy of the law to require the plaintiff in such a suit to make out a very clear case of attractive nuisance. But a distinction must be drawn between such cases and the instant one where children playing upon the public street, as they lawfully might, would be more apt to be attracted by the tar kettle placed on the street than if it had been located upon private property.

In Szymczak v. Schillinger Bros. Co., supra, plaintiff’s intestate with other children used the lot of the defendant as a playground and on the day of the accident, while the children were playing on the premises, they noticed a barrel containing tar that was being allowed to cool, and the court held that as the barrel of tar was not the means of attracting the children upon the premises the doctrine of attractive nuisance could not be applied to the case. It is true that in the opinion it is said that the court was not willing to extend the doctrine of attractive nuisance to a barrel of tar, but this language, if it is not obiter, at least must be interpreted in the light of the facts of that case. In Newman v. Barber Asphalt Paving Co., supra, the plaintiff’s intestate was injured by reason of a team suddenly starting forward, and the court held that under the facts of the case the driver of the team was not guilty of negligence and the judgment of the lower court was reversed with a finding that the defendant ivas not guilty of negligence. The team in question was hauling tar and the court in its decision stated that “no case has been cited, and a careful search has disclosed none, wherein the doctrine of ‘ attractive nuisance ’ has been extended to a team and wagon or other like vehicle standing or moving upon the street.” This case is the only one cited in Szymczak v. Schillinger Bros. Co., supra, in support of the statement of the court in that case that the court was not willing to extend the doctrine of attractive nuisance to a barrel of tar.

Unless the facts in the present case are such that all reasonable minds would draw therefrom no other inference than that the tar kettle and the manner in which it was used did not constitute an attractive nuisance, the question became one of fact for the jury to determine. (City of Pekin v. McMahon, 154 Ill. 141, 147-152; True & True Co. v. Woda, 201 Ill. 315, 318; Stollery v. Cicero & P. St. Ry. Co., 243 Ill. 290, 292; Stedwell v. City of Chicago, supra; Anderson v. Karstens, 218 Ill. App. 285, 292; Holmberg v. City of Chicago, supra.) The jury found that the kettle, under the circumstances of this case, was an attractive nuisance, and we are satisfied that we would not. be justified in overriding that verdict. In our judgment, common experience and common sense justify the finding of the jury. In Holmberg v. City of Chicago, supra (certiorari denied by the Supreme Court), the plaintiff’s intestate, an 11-year-old boy, was smothered in a sand pile into which he had dug and which the city had allowed the defendant contractor to pile some eight feet high in a public street. The court held that the question as to whether the sand pile constituted an attractive nuisance was a question of fact for the jury to determine and that the court was not justified in setting aside the finding of the jury that it was an attractive nuisance. In our opinion, the facts before us make out a stronger case of an attractive nuisance.

The defendant apparently assumes that if the theory of attractive nuisance is not sustained by the evidence the plaintiff’s case falls. This contention is not warranted by the pleadings or the evidence in the case. The declaration consists of three counts. The sufficiency of the declaration or any of its counts is not challenged. It is true that in each of the counts the plaintiff charges that the kettle or boiler was attractive to children of tender age, but each count contains other charges of negligence, viz, that there was no proper brace or device used to prevent the kettle from tilting over or upsetting; that there were no guards, barricades or other precautions for safety surrounding the boiler; that the defendant neglected to have a person watching the' kettle to prevent children of immature age from approaching and coming in contact with the same; that the top of the boiler was left open, with no cover or lid over it, so that when the boiler was caused to be tilted its contents would quickly and freely flow and spill out. The plaintiff had the right to allege in his declaration as many grounds of recovery as he saw proper, but it was not necessary that he prove all of these. If he proved enough of the acts of negligence charged to make out a case it was sufficient. (Weber Wagon Co. v. Kehl, 139 Ill. 644, 658; Devine v. Delano, 272 Ill. 166; Wood v. Illinois Cent. R. Co., 185 Ill. App. 180, 184; Reivitz v. Chicago Rapid, Transit Co., 327 Ill. 207, 209.) Plaintiff’s intestate was only five years of age at the time of the accident and was therefore incapable of such conduct as would constitute contributory negligence (Maskaliunas v. Chicago & W. I. R. Co., 318, Ill. 142, 149), and he was not a trespasser (Deming v. City of Chicago, supra; Stedwell v. City of Chicago, supra), and in our judgment, even if it be held that the kettle did not constitute an attractive nuisance, nevertheless, under the pleadings and the evidence in the case, the plaintiff made out a clear case of negligence against the defendant. The attractive nuisance charge, if proved, would be but a circumstance bearing upon the question of the alleged negligence of the defendant.

The defendant contends that the court permitted the counsel for the plaintiff to put leading questions to his witnesses. The counsel calls our attention to three alleged instances in support of his contention and an examination of the same shows that the present contention is without the slightest merit.

The defendant next contends that the evidence does not show that the next of kin of the plaintiff’s intestate were exercising ordinary care for his safety prior to the accident. The evidence shows that repair work was being done in front of the home of the intestate and that the kettle was but a few lots from said home; that there were five young children in the family and that just prior to the accident the father was painting the upper rear part of the house from a porch and the children were standing on the porch watching the father, and he being fearful that the children might fall off the porch made them go down to the back yard. There was a fence around the yard and a gate opening into the alley and one opening into the front. These gates had hooks that were about four feet from the ground. The father closed the gates and hooked them and then, a few minutes before the accident, went upstairs and continued with his painting. The mother was in the house at the time engaged about her work. The evidence shows that Bruno was in the back yard five minutes before the accident happened playing on a swing with an older brother. It further appears that the father had instructed the small children to remain off the street and to play in the back yard. The jury have found that the parents of Bruno were in the exercise of ordinary care for his safety prior to the accident, and we see no good reason for disturbing this finding.

The defendant contends that there is no evidence that Bruno died in consequence of the injuries he received at the time of the accident. There is no merit, in this contention, and we are somewhat surprised that counsel should see fit to make it. The record, not the abstract, shows that counsel for the city at the time that the plaintiff called Dr. Reddick as a witness, stopped the examination of the witness by admitting the death of the boy and that the burns he received at the time of the accident caused his death. The father testified that Bruno died August 10,1924.

The defendant next contends that the damages awarded, $5,500, are' excessive. We have carefully considered this contention and we are of the opinion that we would not be justified in disturbing the amount fixed by the jury.

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

Affirmed.

Barnes, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Harold G. McKey, Trustee in Bankruptcy of Paul Morton, Inc., Bankrupt, Appellee, v. The Davis Company, Appellant.
    Gen. No. 31,862.
    1. Appeal and error — review of instruction in absence of evidence. Alleged error in the granting of instruction cannot be considered where none of the evidence is preserved by a bill of exceptions.
    2. Municipal courts — jurisdiction of action by trustee in banlsruptcy. Under Cahill’s St. 1925, ch. 37, ¶ 390, the municipal court of Chicago has jurisdiction of the subject matter of an action of the first class by a trustee in bankruptcy upon a claim of the bankrupt based on a contract for goods sold and delivered, in view of the Federal Bankruptcy Act of 1898, § 23(b) and §47, subds. 2 and 3, notwithstanding the defendant contends that section 70 of the act precludes the municipal court’s jurisdiction, and although the defendant contends that plaintiff’s affidavit of merits, setting up section 68(b) of the act, to the defendant’s claim of set-off, brought the action within section 68(b) of the act and thereby precluded the court’s jurisdiction.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 27, 1927.
    Frank P. Leffingwell, for appellant.
    Culver, Andrews & King, for appellee; Charles J., Clusman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

The plaintiff, Harold G. McKey, trustee in bankruptcy of Paul Morton, Inc., bankrupt, sued the defendant, The Davis Company, a corporation, in the municipal court of Chicago in an action of the first class. The case was tried before the court with a jury. There was a verdict returned in favor of the plaintiff in the sum of $2,000, upon which the court entered judgment. This appeal followed.

Paul Morton, Inc., sold merchandise to the value of $2,095.38 to the defendant for which payment had not been made. The defendant, in its affidavit of merits, admitted receiving merchandise to the amount stated but claimed by set-off that on July 9, 1924, .Paul Morton, Inc., was indebted to Marshall Field & Company in the sum of $3,104.95 for merchandise purchased and that on said date, for a good and valuable, consideration, said company assigned to the defendant its claim, and that therefore the defendant was not. indebted to Paul Morton, Inc., in any sum whatsoever,' The plaintiff, in his affidavit of merits to the defendant’s set-off, stated that the defendant within four months before the filing of the petition for adjudication in the bankruptcy proceeding, and with knowledge or notice that the bankrupt was insolvent, purchased, the account of Marshall Field & Company, and that therefore the said account could not be used as a set-off against the claim of the plaintiff; that to allow such set-off would be contrary to section 68(b) of the Bankruptcy Act of 1898.

The defendant in its brief contends that the court erred in giving to the jury certain instructions requested by the plaintiff, but as none of the evidence in the cause was preserved by a bill of exceptions, this contention cannot be considered by us. Counsel for the defendant in the oral argument before this court admitted that the defendant, because of the state of the record, could not urge the present contention.

The defendant contends that the municipal court did not have jurisdiction of the subject matter of the action.

The plaintiff brought his suit in the municipal court of Chicago as an action of the first class. The statute defining the jurisdiction of that court as to .actions of the first class, so far as it is applicable to the present appeal, reads as follows:

“First. Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).” (Cahill’s St. 1925, ch. 37, If 390.)

The defendant contends that the plaintiff’s action was based upon section 70 of the Federal Bankruptcy Act of 1898 and that therefore the municipal court had no jurisdiction of the subject matter of the action. Section 70 is very lengthy but its scope and purpose is thus stated: “It is chiefly important (a) for its provisions fixing what property of a bankrupt vests in his trustee and the time when it vests, and (b) as adopting as a part of the bankruptcy system the respective state statutes providing a remedy against fraudulent transfers. It also includes nearly all that is in the law relative to the method of selling a bankrupt’s property. Besides, it provides for the appointment and reports of appraisers. The other subdivisions, c, d, and f, have to do either with minor matters of practice or else refer directly to and would have been more appropriately incorporated in other sections.” (Collier on Bankruptcy, 4th Ed., p. 552.) It is clear that this section has no application to the question of jurisdiction in the instant case.

The second clause of section 23 of the Bankruptcy Act reads as follows: “b. Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recovery of property under section sixty, subdivision b, and section sixty-seven, subdivision e.” (Amendment of 1903 in italics.)

Before the amendment of 1903, the Supreme Court of the United States, in the case of Bardes v. Hawarden Bank, 178 U. S. 524, 537-538, interpreted section 23 and held that Congress by the second clause “clearly manifested its intention that controversies, not strictly or properly part of the proceedings in bankruptcy, but independent suits brought by the trustee in bankruptcy to assert a title to money or property as assets of the bankrupt against strangers to those proceedings, should not come within the jurisdiction of the district courts of the United States, ‘unless by consent of the proposed defendant. ’ * * * One object in inserting this clause in the act may well have been to leave such controversies to be tried and determined, for the most part, in the local courts of the state, to the greater economy and convenience of litigants and witnesses.” Later, in Wall v. Cox, 181 U. S. 244, this interpretation was reaffirmed. “The only change accomplished by the amendments (the amendments of 1903) is to give jurisdiction of suits at law and in equity to recover property to the district courts as well as to the courts of the State.” (Collier on Bankruptcy, 4th Ed., p. 269.)

There is no force in the contention of the defendant that the plaintiff, by his affidavit of merits to defendant’s set-off, brought himself within the provisions of section 68(b) of the Bankruptcy Act of 1898 and that therefore the municipal court did not have jurisdiction of the subject matter. Section 68(b) reads as follows: “A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or transferred to him after the filing of the petition, or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy.” This section has no bearing on the question of jurisdiction.

Plaintiff’s claim was for merchandise sold and delivered to the defendant by Paul Morton, Inc., before it became a bankrupt. This claim was based upon a contract. Had there been no bankruptcy proceeding, Paul Morton, Inc., might have brought suit in the municipal court of Chicago and that court would have had jurisdiction of the subject matter of that suit. Under subdivisions 2 and 3 of section 47 of the Bankruptcy Act it was the duty of the trustee to collect the assets of the bankrupt and, if necessary, to enforce the payment of accounts by suit (Collier on Bankruptcy, 13th Ed., p. 1045), and under the second clause of section 23 he had the right to sue the defendant in a State court, and as the claim was based upon a contract the municipal court of Chicago had jurisdiction of the subject matter of the suit.

The judgment of the municipal court of Chicago is affirmed^

Affirmed.

Barnes, P. J., and Gridley, J., concur.


author: Mr. Justice Boggs

text:
    Thomas McClay, Plaintiff in Error, v. James R. Williamson and Mary B. Williamson, Defendants in Error.
    Gen. No. 7,760.
    1. Equity — when order of dismissal is not void. An order dismissing a suit for want of prosecution on the general call of the docket through inadvertence in overlooking that the cause had been referred to a- master is not void, the court having jurisdiction of the parties and the subject matter of the suit.
    2. Calendar — stage of canse as to trial docket. A cause on the chancery docket which has been referred to a master cannot be said to be on the docket for trial until the master has made his report.
    3. Equity — when dismissal for want of prosecution is improper. It is reversible error to order the dismissal, on the general call of the docket without notice to either party, for want of prosecution of a suit which is not set for trial as contemplated by the Practice Act, § 21, Cahill’s St. ch. 110, If 21, but which had been referred to a master to take evidence and report, although a rule of court limits the time in which to take the evidence, where the master, with the acquiescence of both parties, extended the time without fixing a definite time limit.
    4. Harmless and prejudicial error — when dismissal of meritorious hill for want of prosecution is error. Error in dismissing a bill for want of prosecution was prejudicial where a bill to foreclose a mechanic ’s lien set up a meritorious cause of action.
    Error by plaintiff to the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed January 12, 1928.
    Sidney H. Block, for plaintiff in error.
    E. V. Orvis, for defendants in error.
   Mr. Justice Boggs

delivered the opinion of the court.

On February 25, 1921, plaintiff in error filed a bill in the circuit court of Lake county against defendants in error, to foreclose a mechanic’s lien. Defendants in error answered said bill and subsequently filed a cross-bill, to which plaintiff in error filed an answer. On October 11, 1921, said cause was referred to William A. Deane as special master to take and report the evidence with his conclusions.

On October 6, 1926, on the general call of the chancery docket, the court dismissed said cause for want of prosecution. Thereafter, at the December term, plaintiff in error entered a motion to vacate said order and to reinstate said cause. On the hearing the court denied said motion. Plaintiff in error prosecutes this writ of error to reverse said order denying his motion to reinstate, and to reverse said order of dismissal.

The circuit clerk testified on said hearing that on October 11, 1921, said cause had been referred to a special master; that he had given bond, which had been approved by the court; that on October 6, 1926, being the third day of the October term “there was a general call of the docket of all the cases pending and when this case was called by the Judge, neither party appeared in court, either in person or by solicitor, and it was dismissed by the Court at that time ’ ’; that according to the records on October 6, 1926, said cause was pending before said special master; that Mr. Orvis, during all of the time that the case was on reference to the special master,, represented defendants in error; that at the December term, 1926, said special master presented his report, to the filing of which defendants in error objected on the ground that said cause had been dismissed; that prior to the dismissal of said cause, no notice was given to either of said parties so far as shown by the record.

Said special master testified that after said cause was referred to him, ‘1 There were at least five hearings had at my office and there were about the same number of continuances. Sidney H. Block appeared as solicitor for the complainant, and E. V. Orvis, present solicitor for defendants James B, Williamson and Mary B. Williamson, appeared as solicitor for these defendants. At the last hearing there was a brief of the propositions of law involved, which had been previously submitted by counsel, argued, after the proofs in said cause were declared closed. * * * After this hearing I prepared my report on the proofs taken before me and my conclusions thereon, and submitted a report of the same to the Court on December 13,1926, Avhereupon it was discovered that the case had been previously dismissed for want of prosecution.”

In addition to the foregoing testimony, it was stipulated that “about the 15th day of October 1926, E. V. Orvis, solicitor for defendants, and William A. Deane, the Special Master in Chancery in this case in a conversation had between them in the circuit courtroom, while Mr. Block, solicitor for complainant, was in said courtroom * * * and during a recess * * *, the said William A. Deane stated, ‘I want to get that McClay matter closed up.’ Thereupon I, E. V. Orvis, stated, ‘All right, draw up the report as suggested.’ That subsequently, on November 23, 1926, the said Special Master in Chancery did prepare his report of proofs, findings and conclusions and presented it to the Court on December 13, 1926. That the parties were not present before the said Special Master in Chancery except as herein otherwise stated, after June 28, 1926. That on the date of the presentation of the report, that is, December 13, 1926, was the first information that either of the parties or their solicitors had that the court had dismissed the cause for want of prosecution on October 6, 1926.”

In addition to the foregoing, defendants in error offered rules 1 and 11 of said circuit court, rule 1 being as follows:

“Rule 1. Whenever a reference shall be made to the master in chancery of this Court, to take testimony and report the same with his conclusions thereon to the court, the court may in such order of reference direct the time within which such testimony must be taken, and in case no rule is made for the closing of proofs in said order of reference, then the complainant must complete the taking of his testimony within sixty days after such order of reference is made. Defendants shall then take and close their testimony within thirty days thereafter. Rebutting testimony shall be taken and closed within ten days thereafter and if the taking of further testimony shall by the master in chancery be deemed necessary and proper, the same shall be taken within such time as shall be fixed by the master.”

The court, in denying said motion stated among other things:

“In dismissing this case for want of prosecution I did not take into consideration the fact that it was pending before a master at the time, and * * * inadvertently overlooked this fact, but under the authorities cited (Weil v. Mulvaney, 262 Ill. 195), it appears that this order can only be set aside on a writ of error or appeal, and the motion to vacate and set aside the order of October 6, 1926, and reinstate the cause, is therefore denied.”

The order dismissing said cause was not a void order, as the court, notwithstanding said reference, had jurisdiction of the parties to the suit and of the subject matter thereof. Weil v. Mulvaney, 262 Ill. 195-201; Bill Board Pub. Co. v. McCarahan, 180 Ill. App. 525-537.

While error was assigned on the order denying the motion to vacate said order of dismissal, counsel for plaintiff in error practically concedes in his brief and argument that this assignment is not well taken. In other words, this assignment of error has been abandoned.

The question for our determination therefore is as to whether the court committed reversible error in entering said order of dismissal.

Section 21 of the Practice Act, Cahill’s St. ch. 110, ¶ 21, provides among other things that “no suit, action or proceeding, at law or in equity, shall be dismissed for want of prosecution at any time except when such cause shall be actually reached for trial in its order as set for trial, or upon the short cause or daily trial calendar of the court; but in any suit in equity the court may, on motion and notice to the complainant for the cause shown, make an order according to the state of the suit to speed the cause within a reasonable time to be fixed in such order, and on failure to comply therewith may dismiss the suit for want of prosecution. ’ ’

Said cause was not set for trial, as contemplated by said statute, and no order was made or applied for to speed the hearing thereof.

A cause on the chancery docket which has been referred to a master cannot be said to be on the docket for trial until the master has made his report.

Counsel for defendants in error insist that, under rule 1 above set forth, there was a time fixed in which to take the evidence. However, that rule also provides that “if the taking of further testimony shall by the master in chancery be deemed necessary and proper, the same shall be taken within such time as shall be fixed by the master. ’ ’

Evidently the master, with the acquiescence of both parties, extended the time for the taking of the evidence, without fixing a definite time in which the same should be closed.

In Weil v. Mulvaney, supra, the trial court had dismissed a bill for want of prosecution while it was pending before the master in chancery. The court in discussing a question of this character at page 201 says:

“The circuit court had the power to enter the order of May 1, 1912, dismissing the case, but being entered without notice to either party, with the clear understanding on the part of both that the matter was still pending before a master in chancery, it was plainly a misuse or abuse of the power of the court and therefore erroneous. If application had been made to the trial court to set it aside at the same term at which this order was entered such application should have been allowed, but after the term had passed it could only be set aside on writ of error or appeal.” Citing Gould v. Root, 4 Hill (N. Y.) 554; Levin v. Berlin, 141 App. Div. 119, 125 N. Y. Supp. 761; Dexter v. Young, 40 N. H. 130; Cooke v. Gwyn, 3 Atk. 689; Willey v. Durgin, 118 Mass. 64; Phillips v. Shipley, 1 Bland’s Ct. (Md.) 516; Tyson v. Robinson, 25 N. C. 333; Knapp v. Fisher, 49 Vt. 94.

In Bill Board Pub. Co. v. McCarahan, supra, the trial court had dismissed a cause while pending on reference to the master, and in discussing this action, the court after quoting from the Practice Act above set forth, at page 537 says that within provision of this act “can in reason be held to mean that a judge finding, on reaching a chancery case on the docket, that it has been referred to a Master, may not pass it without action and proceed to dispose of eases beyond it. * * *

“If this order was not entered by inadvertent mistake, then it was entered as an exercise of the discretion of the court, and, in our opinion, if this was the case, was an abuse of discretion. It is needless to discuss this point, as the facts speak plainly for themselves.”

And in Leonard v. Garland, 252 Ill. 300, the court in discussing the matter of the dismissal of cases for want of prosecution, at page 303 says:

“While the power to dismiss a cause for want of prosecution, where there has been long and unexplained delay, is conceded, the power should be exercised reasonably and with due regard to the rights of litigants. Where a case is reached for trial regularly on the call and the plaintiff fails to appear and the defendant is present insisting upon a disposition of the cause, the court may properly dismiss the case for want of prosecution. (Delano v. Bennett, 61 Ill. 83.) The court may also dismiss a cause for noncompliance with a rule entered against the plaintiff to file a pleading or take some other step in the cause, where no sufficient excuse is given. * * * No rule had been entered against plaintiffs in error requiring them to take any steps looking toward the final disposition of the case. The action of the court below cannot be sustained on the alleged ground of a failure to prosecute the suit with due diligence. The court erred in dismissing this bill.”

It is also insisted by counsel for defendants in error that no sufficient showing is made that plaintiff in error had a meritorious cause of action. The bill of complaint set up a meritorious cause of action. That being true, it was error to dismiss said bill. Leonard v. Garland, supra, 303.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded, with directions to the trial court to set aside said order of dismissal, entered on October 6 ,1926, and to reinstate said cause.

Reversed and remanded with directions.


text:
    Edward H. Cooper, Appellee, v. El Louise Schoeberlein, Appellant.
    Gen. No. 7,865.
    1. Brokers — weight of evidence as to procuring cause of sale. A real estate broker is not shown to be the procuring cause of a sale where he testifies that the owner was willing to sell but would not agree to pay-commission or close a deal until she consulted with her attorney; that at a meeting with the attorney the intending purchaser stated, in answer to a question by the attorney, that the seller pay commissions; that no deal was then consummated; and that the land was sold to the intending purchaser two months later; which evidence is substantially denied by the owner, her attorney and the purchaser who testify in effect that the broker did not effect the sale.
    2. Brokers — excuse for not having certificate of registration. Where a real estate broker claims to have effected a sale but did not have a certificate of registration required by Cahill’s St. ch. 17a, ¶ 1, a letter from the issuing department acknowledging receipt of the fee and application, and stating that a certificate would be issued as soon as they could get around to it does not show a substantial compliance with the law, the certificate being issued one week after the application and there being no showing that the issuance had been unreasonably delayed.
    3. Statutes — no retroactive effect of statute requiring registration of broleer. Cahill’s St. ch. 17a, f 1, requiring a real estate broker to have a certificate of registration, should not be construed so as to give a certificate a retroactive effect.
    4. Brokers — necessity of certificate of registration. In order for a real estate broker to recover commissions he must have the' formal certificate of registration required by Cahill’s St. ch. 17a, ¶ 1, at the time he performs the services for which he seeks compensation, unless he is without the certificate for some proper cause connected with the administration of the issuing department, such as absence of blanks and the like.
    5. Evidence — necessity of foundation before testifying as to letter. A person cannot testify as to the contents of a letter he received unless a proper foundation is laid.
    Appeal by defendant from the Circuit Court of Kane county; the Hon. William J. Pulton, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed January 12, 1928.
    Donovan, Bray & Gray, for appellant.
    N. J. Aldrich and E. L. Lyon, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellee instituted suit in the circuit dourt of Kane county against appellant to recover, commissions alleged to be due him as a real estate broker on the sale of certain lands belonging to appellant. The declaration consists of the common counts, accompanied by an affidavit of merits. To said declaration appellant filed a plea of the general issue with affidavit of merits. A jury was waived and a trial was had, resulting in a finding and judgment in favor of appellee for $2,430. To reverse said judgment, this appeal is prosecuted.

It is first contended by appellant that the finding in this case is against the manifest weight of the evidence, for the reason that the proof fails to show that appellee was the procuring cause of the sale of appellant’s land.

The record discloses that appellant was the owner of some 80 acres of land near the city of Aurora, and that some time between the 15th and 20th of March, 1925, appellee inquired of appellant as to whether she would be interested in selling the same. In this connection, among other things, appellee testified that appellant “wanted to know what I could get for it (the land) and I told her I did not know, but the Evans farm adjoining it had sold for $1,000 an acre”; that he inquired of appellant if she would object to paying commissions and that she replied, “ ‘Why I don’t imagine I would, because I would have to pay it no matter who sold it. ’ She wanted to know what the commission would be and I said the general commission is three and five; * * * however, I told her three per cent would be all right with me. I told her perhaps I could bring her a man within a short time, or two or three that were talking about taking it to subdivide, and she said, ‘Well, before completing the deal in the land I want to call Mr. Alschuler, my attorney, in,’ and I said that was all right and I sug-. gested that we have a meeting in Mr. Alschuler’s office.”

Appellee arranged a meeting in Mr. Alschuler’s office between Mr. Alschuler, appellant, and a Mr. Walsh. The evidence tends to show that this meeting was on March 21st. Appellee testified that Walsh was a prospective purchaser of the land, and that Mr. Alsclxuler asked him who was to pay the commissions if a deal was consummated, and that Mr. Walsh replied, “Why you are a fine one talking about who is to pay the commission in this. Of course a commission is due Cooper and the seller pays it.” He further testified that the meeting terminated and nothing more was said about commissions. The evidence is also to the effect that another meeting was had in Alschuler’s office on March 24th, at which all of said parties were present. No deal was consummated at this time.

Thereafter, on May 16th, Walsh secured an option for the purchase of said premises, and, some weeks thereafter, he elected to and did purchase the same.

On cross examination, appellee testified: “She (appellant) did not make any definite agreement with me to sell the property or list it with me. She made no definite agreement with me as to how much commission she was to pay, nothing more than that I have said. She did not at any time agree to pay any commission except where the commission question came up in Mr. Alschuler’s office. I am basing my entire claim for commission on the remark made in her home and what was said in Mr. Alschuler’s office.”

It is not contended that Mr. Alschuler stated that appellant would pay any commission, but only that he remained silent after Mr. Walsh had made the statement he did, in answer to Mr. Alschuler’s question as to who would pay the commissions if a deal was consummated.

On the other hand, appellant testified with reference to the conversation at her home that “Mr. Cooper spoke to me about a commission and I told him I was not in a position to make a statement about commissions until I talked to my attorney. I did not know but perhaps I would have to pay them. He told me that the customary price was five per cent but on a big deal like that he would be satisfied with two. I did not agree to pay him any commission on that basis. I told him I could not make any statement to him about commissions until I had talked to Mr. Alschuler. I do not remember anything further being said by either Mr. Cooper or myself with reference to commissions.” She further testified that she did not remember as to anything being said with reference to commissions at the meeting in Mr. Alschuler’s office.

Mr. Alschuler and Mr. Walsh both specifically denied that the conversation testified to by appellee occurred between them. Mr. Alschuler testified that he told appellee before the first meeting in his office that appellant would not pay any commissions, and that he also stated in his office at the time of said meeting that the sale, if made, must be net to appellant.

Mr. Walsh testified: “Mr. Cooper told me that Mrs. Schoeberlein would not pay him any commission for the sale of this tract. This statement was made previous to the interview with Mr. Cooper and Mrs. Schoeberlein and Mr. Alschuler. That statement might have been made at my office in Aurora.” He further testified that he agreed at this meeting on March 24th, if the sale were consummated at that time, that he himself would pay the commissions.

Appellee testified that after the last meeting in Mr. Alschuler’s office, he from time to time conferred with Mr. Walsh ánd with appellant, and tried to get them together on a price for said real estate, but that he failed to do so.

Appellant testified that she had no conversation whatever with appellee with reference to selling said premises, after the meeting in Mr. Alschuler’s office on the 24th of March. Mr. Walsh testified that he had no communication with appellee after said meeting on March 24th with reference to the purchase of said property; that he gave no further attention to the matter of buying the property, until a Mr. Bryan took the matter up with him, about the middle of May.

We therefore hold that the finding of the court on which said judgment is based is against the manifest weight of the evidence.

It is next contended by counsel for appellant that appellee was not a registered real estate broker at the time he was seeking to effect a sale of said property.

Appellee testified that he sent in an application for a license on March 18th, that he, “sent the money to Boyd Brothers * * * a real estate firm in Aurora. I paid them by cash. It was through them that the application was sent to the department of education and registration. They mailed the letter. I did not see them mail it. I do not know that it had been mailed on the 18th of March, 1925. ’ ’ He further testified that he received a letter from the department of registration and education; that he could not definitely say just when he received the letter, that it might not have been received until the 24th or 25th of March; that he looked through his files and was unable to find it. Over the objection of appellant, appellee was allowed to testify that the letter acknowledged the receipt of the fee and application, and “stated that the certificate would be issued as soon as they could get to it, and mailed to me, and that I was authorized to act as a broker from that time. * * * I don’t remember who it was signed by.” The certificate in question was offered in evidence by appellee and, among other things, states that appellee was “duly registered and entitled to act as a registered real estate 1925 broker, under the provisions of an Act ‘in relation to the definition, registration and regulation of real estate brokers and real estate salesmen,’ from the date hereof until February 1, 1926.”

The director of said department also states in his certificate, among other things, ‘ ‘ That the fee required by law for such application was received in my office on the 20th day of March, 1925, and that the said application for registration as a registered real estate broker was approved by the real estate commission on the 27th day of March, 1925, and that the certificate was issued on said 27th day of March, 1925.”

The certificate therefore discloses that the application was not approved until March 27th, the date on which the certificate was issued, and that it authorized, appellee to do the business of a real estate broker from that date until February 1, 1926.

While counsel for appellee practically concedes that this is the state of the record, he insists that, having received the above-mentioned letter from the department of education and registration, and said certificate having been issued on said application, that it in effect authorized him to transact the business of a real estate broker from March 18th, the date be deposited his application and fee with Boyd Brothers to be forwarded to said department.

To adopt the construction contended for by appellee would give the certificate a retroactive effect.

Cahill’s St. ch. 17a, If 1, provides:

“That on and after January 1, 1922, it shall be unlawful for any person to act as a real estate broker or real estate salesman, or to advertise or assume to act as such real estate broker or real estate salesman, without a certificate of registration issued by the Department of Registration and Education.”

Counsel for appellee cite and rely on Lucas v. Adomaitis, 236 Ill. App. 254. That case involved a transaction happening shortly after the Registration Act went into effect. In that case the applicant made an informal application and on receipt of it the department wrote him that his application had been received; that at a meeting of the registration department it had been duly approved; that it would be impossible to furnish a certificate for six weeks or two months, be, cause the blanks had not been received; that the applicant’s record was clear in that office and that he should have no hesitancy in practicing his profession pending the receipt • of his certificate of registration. This letter was signed by the head of the department. The court there held that the production of the letter showed a substantial compliance with the law.

The record in this case, however, fails to show a substantial compliance with the law. The certificate in this case was issued just one week after the application was received, and there is nothing to show that the issuance of the certificate was unreasonably delayed.

Statutes and ordinances of this character should not be construed to be of a retroactive character. Wisniewski v. Wiszowaty, 242 Ill. App. 631; Kirk v. Henry M. Rich & Co., 156 Ill. App. 483-484; Eckert v. Collot, 46 Ill. App. 361. In Kirk v. Henry M. Rich & Co., supra, the court at page 485 says:

“The services of plaintiff were rendered before he obtained a license. It is immaterial that after the services were rendered and before the lease was executed, he took out a license. Plaintiff performed his part of his contract with defendant when he procured a person willing and able to accept a lease on the terms offered by defendant, but his acts in the performance of the contract being unlawful, they cannot be the basis of a recovery.
“The license took effect from the date it was issued and cannot be given a retroactive effect so as to make valid acts ,of the plaintiff done between May 1 and October 30, 1907.” Citing Eckert v. Collot, supra; Elsberry v. State, 52 Ala. 8; State v. Pate, 67 Mo. 488; Haworth v. Montgomery, 91 Tenn. 16. This case was cited and approved in Wisniewski v. Wiszowaty, supra.

It might be observed also with reference to Lucas v. Adomaitis, supra, being a first district case, that the same division of the Appellate Court for that district, and the same judge of that division who wrote the opinion in that case, wrote the opinion in Wisniewski v. Wiszowaty, supra, thereby disclosing that that court was not intending, by its decision on the facts in the former case, to construe said statute as giving to certificates issued under it a retroactive effect.

The case of Prather v. People, 85 Ill. 36, cited by appellee, involved a liquor dealer’s license. In that case, application had been made and filed, the license fee paid and receipted for, the bond filed and approved, and the clerk had been directed to issue the license. Nothing remained to be done except the ministerial act of delivering the license. The court properly held that there had been a substantial compliance by the applicant with the requirements of the ordinance.

The case of Zanone v. City of Mound City, 11 Ill. App. 334, is another liquor case involving the arbitrary refusal of a city to grant a license, and is not in point here.

In order for a real estate broker to recover commissions, he must have the formal certificate required by the statute, at the time he performs the services for which he seeks compensation unless for some cause connected with the administration of said department as in Lucas v. Adomaitis, supra.

This holding is in harmony with the holding of the Supreme and Appellate Courts of this State. Wisniewski v. Wiszowaty, supra; Hendricks v. Richardson, 233 Ill. App. 130; Kirk v. Henry M. Rich & Co., supra; Eckert v. Collot, supra; Douthart v. Congdon, 197 Ill. 349.

It was also insisted by appellant that the court erred in admitting the testimony of appellee as to the contents of the above-mentioned letter. The court erred in admitting the same, for the reason that the proper foundation therefor was not laid. It will not be necessary for us to discuss the ruling of the court on the propositions of law as the law in reference thereto is sufficiently set forth in this opinion.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Jones

text:
    Alva Collins, Appellee, v. Fred Kurth et al., Appellants.

    Gen. No. 7,488.
    1. Master and servant — actual knowledge of danger as dispensing with duty to warn. Recovery cannot be had by a farm hand for the loss of his hand duo to its being caught in the knives of an ensilage cutter on the ground of failure of the master to warn him of latent dangers in the machine, where the evidence shows that the employee had actual knowledge of the dangerous character of the machine and was aware of the source of danger that existed and of what it consisted.
    2. Appeal and error — when court should reverse without remanding. Where the trial court should have directed a verdict because the evidence did not tend to establish a cause of action, and refused to do so, the Appellate Court should reverse the judgment, with a finding of facts, and not remand the ease.
    Appeal by defendants from the Circuit Court of Kankakee county; the Hon. Arthur W. DeSelm, Judge, presiding.
    Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed October 10, 1925.
    E. P. Harney, A. L. Granger and C. M. Granger, for appellants.
    Luther B. Bratton and John A. Mayhew, for appellee.

      Publication of the opinion in this caso was withheld until this time by direction of the court,

   Mr. Justice Jones

delivered the opinion of the court.

The appellee, Alva Collins, as plaintiff below, brought an action of trespass on the case against the appellants for the loss of his hand through injuries received in an ensilage cutter. Appellee was 47 years of age and had been engaged as a farm hand, doing general farm work, since he was 9 years of age. Until a little over a year prior to the accident his home had been in Hamilton county, Illinois, where he had worked for his sister. While so engaged he was considered “first man,” that is, there were two farm hands employed and appellee directed what work should be done. He went to Woodford county and obtained employment as a farm hand. In May, 1922, appellant Fred Kurth hired him at a wage of $30 per month. He had very little education.

Fred Kurth and the other three appellants are neighbor farmers. There was a system prevailing in their neighborhood of trading work among the farmers while filling silos. Appellants were the owners of an ensilage cutter. In cutting corn for silos appellants’ ensilage cutter was used. As a general proposition, the farmer whose com was being cut furnished a tractor for motive power. Work had thus been going on for approximately two weeks when the outfit went to Kurth’s farm to fill his silo and it Avas at his place where appellee was injured.

The ensilage cutter was admittedly of the latest type and was known as a “self-feeder.” It was so-called because it had a carrier, upon which the corn stalks were thrown and moved toward a pair of floating rollers Avhich partially crushed the stalks and corn. The carrier then moved the stalks to a second pair of rollers, the latter being stationary rollers which further crushed the corn. After going through these rollers the corn passed on to the cutters, consisting of a series of large knives, Avhere it Avas shredded and put in condition to be placed in the silo.

The corn Avas brought to the machine in wagons and then thrown on the carrier. It was not ■ always necessary for anyone to assist the feeder, but if the corn Avas rough or in such condition that it did not properly lie in the carrier, it Avas necessary for someone to stand beside the carrier and straighten the stalks in it. On the day of the accident the corn was being so straightened, Kurth and appellee took turns in performing this work. During one of the times appellee was so employed his hand became caught in the knives and he received the injury complained of.

The declaration contained an original count and an additional count. No evidence having been offered in support of the original count, the court peremptorily instructed the jury to disregard that count and the cause was then submitted upon the evidence in sup-, port of the additional count. This count averred that appellee .was working about the said machine under appellants’ orders and with their knowledge; that the work he was doing was outside the scope of his duties and employment; that he was inexperienced in the use of said machine; that the machine was dangerous; that he could not foresee the danger nor was he warned or instructed as to it, or in the' use of the machine; that it was the duty of appellants to so warn and instruct him and that his injury was the result of such negligent failure, etc.

Appellee testified that he had been at work with the ensilage cutter for about eight days; that he had not fed the machine at any time prior to the day of the accident; that he had taken his turn in feeding four or five times during that day; that he knew the corn was being placed in the machine for the purpose of having it crushed and cut; that he had, on several occasions, assisted in taking out the knives for the purpose of sharpening them; that after they had been sharpened he had assisted in replacing them, and that he had assisted in tramping the ensilage in the silo. It therefore appears that he had knowledge of the character of the work he was performing and the mechanical method employed in doing it.

Appellee further testified that the manner of placing the corii on the carrier was for a wagon to drive alongside the carrier and the man in charge of such wagon would throw the corn from the wagon upon the carrier: that this corn was usually in bundles of various sizes; that the bundles were thrown over the head of the man at the feeder, and on to the carrier, where the corn was straightened out by him; that while appellee was so engaged, something struck him on the back of the head; that he involuntarily threw up his hand and it was then caught by the knives, inflicting his said injury, and that he does not know what it was that struck him. The driver of the wagon testified that he was not struck by a bundle of corn and that he did not know what, if anything, did strike him.

It is fundamental that a plaintiff must recover, if at all, upon proof of the averments in his declaration. There is no charge in this case that appellee was injured by reason of any act of his,.done as a result of his being struck by a bundle of corn. The precise charge is that his injury was received because of the negligent failure of appellants to warn him of latent ■ danger in the machine, and unless the proof supports that charge he cannot recover. Proof that the injury was caused by some other agency or through some other negligence would not warrant a recovery, in this case.

It is the duty of a master to warn and instruct his servant as to dangers of which he knows, or, in the exercise of reasonable care, ought to know, and of which the servant has no knowledge, either actual or constructive. But it is not necessary that the servant should be warned of dangers that are as obvious to him as to the master. (Chicago & A. R. Co. v. Pettigrew, 82 Ill. App. 33.) Even though a master be negligent in not giving his servant instructions as to the dangers of his employment, still, if the servant received such information from other sources, whether from other persons or from his own observation, and is thereafter injured, the master is not liable, since his negligence is not the proximate cause of the injury. (26 Cyc. 1170.) The reason for requiring a master to warn a servant against a latent danger is to advise the servant of peril which he might not anticipate and which through casual misadventure or inadvertence he might encounter, in the absence of warning. A master is not required to warn his servant of dangers the servant knows about, and has means of avoiding. (Mohr & Sons v. Martewicz, 139 Ill. App. 173; Thompson on Negligence, vol. IV, sec. 4061.) The proof in this case shows that appellee had actual knowledge of the dangerous instrumentality which caused his injury and that he knew of its existence and location with absolute precision and definiteness.

The undisputed evidence shows that appellee had-sufficient warning of the dangerous character of the machine he was operating and was aware of the source of the danger that existed and of what it consisted. It is obvious that there can be no recovery upon the declaration in this case. Therefore the trial court should have given a peremptory instruction in favor of appellants. In view of this conclusion it is not necessary for us to discuss the errors assigned as to the admission of testimony or as to the instructions given or refused by the court.

Where the trial court should have directed a verdict because the evidence did not tend to establish a cause of action and refused to do so the Appellate Court should reverse the judgment, with a finding of facts, and not remand the ease. Mirich v. Forschner Contracting Co., 312 Ill. 343, 357.

We find that appellee was not inexperienced in the use of the machine in question; that he had actual knowledge of and could forsee the dangers inherent in said machine; that he had actual knowledge of the dangerous character of the machine and of the existence and location of the knives which lacerated his hand, and that his injuries were not due to any failure on the part of appellants or either of them to warn and instruct appellee in the use of the machine or as. to any latent danger therein. This judgment is reversed.

Judgment reversed.


text:
    Arnot L. Ellsworth, Appellee, v. The Peoples Life Insurance Company, Appellant.
    Gen. No. 7,803.
    1. Malicious prosecution — liability of corporation. A corporation. is not liable for a malicious prosecution instituted without its authority or ratification.
    2. Corporations — ratification of tort of agent. A corporation, although not originally responsible for the tort of its agent, may pursue a course of conduct which will amount to a ratification.
    3. Malicious prosecution — advice of counsel as defense. If, notwithstanding the advice of counsel, a criminal prosecution is instituted for the purpose of forcing the collection of a debt without probable cause appearing that a crime has been committed, the party so prosecuting cannot shield himself behind the advice of counsel when sued for malicious prosecution.
    4. Malicious prosecution — probable cause defined. Probable cause exists where the circumstances are such as to induce a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person against whom the prosecution is brought is guilty of the crime charged.

      5. Malicious prosecution — want of probable cause as shown by acquittal. Want of probable cause in a criminal prosecution is not .shown alone by the acquittal of the accused.
    6. Malicious prosecution — authority of agent to prosecute as question for jury. In an action of malicious prosecution against a life insurance company by a district manager who, on not turning over premiums collected, was arrested for larceny on a warrant sworn out by the State manager, whether the State manager was acting as the agent of the company and with its knowledge and consent at the time he swore out the warrant was, under the evidence, a question of fact for the jury.
    7. Malicious prosecution — ratification of agent’s act as question for jury. In an action of malicious prosecution against a life insurance company by a district manager who, on not turning over premiums collected, was arrested for larceny on a warrant sworn out by the State manager, whether the company ratified the action of the State manager was, under the evidence, a question for the jury.
    8. Malicious prosecution — probable cause as question for jury. In an action of malicious prosecution against a life insurance company by a district manager who, on not turning over premiums collected, was arrested for larceny on a warrant sworn out by the State manager, whether there was probable cause for such action was, under the evidence, a question of fact for the jury.
    9. Malicious prosecution — sufficiency of evidence of want of probable cause. In an action of malicious prosecution against a life insurance company by a district manager who, on not turning over premiums collected, was arrested for larceny on a warrant sworn out by the State'manager, evidence that the State manager, when conferring with the State’s attorney, did not state all the facts, especially with reference to his permission to the district manager to apply premiums to the payment of commissions of subagents, and that a signed statement by the district manager merely admitted he had collected a certain amount of premiums, showed, with other facts, a want of probable cause and that the warrant was sworn out with malice for the purpose of collecting an alleged debt.
    10. Malicious prosecution — stifficiency of evidence that agent in prosecuting acted with hnowledge and consent of corporation. In an action of malicious prosecution against a life insurance company by a district manager who, on not turning over premiums collected, was arrested for larceny on a warrant sworn out by the State manager, a finding that the State manager acted with the knowledge and consent of the company is justified from evidence that the attorney for plaintiff notified the company by letter, after the preliminary examination, as to what had been done by the State manager; that the reply of the company by tetter showed it was in possession of the facts and desired the law to take its course; that the State manager obtained an indictment by the grand jury, and that the company knew the warrant was to be sworn out and advised such action.
    11. Harmless and prejudicial error — failure to refuse instructions unduly emphasising correct rule of law. Where a correct rule of law as to the institution of á criminal prosecution on the advice of counsel is unduly emphasized by being stated in three instructions for the plaintiff in malicious prosecution, the failure of the court to refuse two of the instructions did not amount to reversible error, particularly where the defendant was guilty of a similar offense in its instructions.
    Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Arthur E. Fisher, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 25, 1927.
    Rehearing denied February 6, 1928.
    Stedman, Kesler & Dingle, for appellant; J. E. Goembel and Frank H. Hall, of counsel.
    Gus S. Brown and Knight & Swenson, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Appellee, Arnot L. Ellsworth, began suit for malicious prosecution and false imprisonment in the circuit court of Winnebago county against Walter A. Milder and The Peoples Life Insurance Company. The suit was dismissed as to Milder. There was a trial by jury, verdict and judgment against appellant, The Peoples Life Insurance Company, for $4,000, and an appeal has been prosecuted to this court.

As grounds for reversal, it is urged that the evidence does not show that appellant was guilty of maliciously prosecuting appellee or causing him to be falsely imprisoned ; that the prosecution of appellee was not instituted by authority of appellant, or ratified by it, and that the evidence was sufficient to show probable cause for the prosecution.

The evidence shows that appellee had a wife and three children. For several years he had been in the insurance business. He was assistant superintendent for the Western and Southern Insurance Company with offices in Rockford, Illinois, with 21 employees under him. His salary of $50 per week and commissions amounted to almost $4,000 a year. Milder was the State manager for the appellant company. In January, 1925, he began negotiations with appellee, Ellsworth, to enter the employ of appellant as district manager. During these negotiations Ellsworth and Milder went to Chicago and had a conference with E. J. Cotter, an assistant secretary of the company.

Appellee testified that in that conversation Cotter said that Milder had charge of the territory and anything he said or did was all right with the company. He also testified that Milder said he would pay $1,000 to open an office, together with certain office expenses including salary of a stenographer or bookkeeper, with advances for five men as solicitors or agents. On February 16, 1925, a written contract was entered into between appellant and appellee, by the terms of which appellee was appointed to canvass for insurance personally and through agents. All collections were to be forthwith paid over to the appellant, and appellee was to securely hold all money belonging to appellant in trust, separate and distinct, and in no case whatsoever to make any personal or other use of said- funds. Appellee was to have a drawing account of $50 per week for six months, together with commissions.

Appellee opened an office in Rockford and employed a stenographer and three solicitors who had previously worked for him. He testified that Milder afterwards told him he might use the money collected on premiums to pay advances to his agents on business written by them, the amounts to be $85 per week and divided between three agents. Milder and three solicitors corroborated appellee in his statement. Appellant loaned appellee $350 evidenced by two notes, one for $200 and the other for $150. This money was used to pay advances to agents, and a book account was kept of the payments, all of which were made to four agents, except $70 which was paid to the stenographer. Milder claimed that the stenographer was not an agent and that appellee was not authorized to pay any part of this money to her. He also claims that appellee paid out a total of $379.18; that he collected $147.53 in premiums, which together with the $350 borrowed made a total of $497.53, leaving a balance in his hands of $118.35, for which no account had been made, and that appellee did not devote his entire time to the business of appellant as provided for by the contract.

On the evening of April 14, 1925, Milder, without the knowledge of appellee, went to appellee’s officé and got possession of certain books and accounts. The next morning Milder called appellee to a room in the Kelson Hotel. Three of appellee’s agents were in the room. Milder told appellee he was at the end of his rope and demanded a check up on receipts and disbursements. Milder asked each of the agents what they had received. After each had stated what he had received, a written statement was signed by appellee in which he admitted he had received the $147.53 due appellant and that no remittance had been made to appellant. Of this amount $49.18 ivas for premiums on policies issued on members of appellee’s own family, leaving $98.35 on which appellee claimed he was entitled to commissions. Milder demanded payment of the balance due and told appellee he would give him until 10 o’clock that night to pay. He testified that he told appellee he did not wish to make it impossible for him to go into business; that he did not wish to injure-him, and for this reason he would let appellee resign, which appellee did in writing. Two days later Milder sent appellee a telegram in which he stated that he did not intend to chase him for the money due, but unless prompt restitution was made he would be compelled to take such action as was necessary to make an example of him, and that unless appellee acted quickly ‘ ‘he would sure live to regret it. ’’ Milder testified that he called Mr. Cotter up on the ’phone and talked to him before he sent this telegram.

On July 13, 1925, Milder called at appellee’s home for payment and appellee ordered him to get out. The next day Milder called on the State’s attorney and told him that appellee had collected money for which he had not accounted. The State’s attorney told him it was a difficult case to prosecute and that he ought to have some paper or statement. Later Milder showed the State’s attorney the statement signed by appellee in which he admitted the collection of $147.53, and the State’s attorney said the statement was sufficient and Milder could take out a warrant. Milder swore out a warrant charging appellee with larceny of $98.35. Appellee was arrested and confined in jail over night. A second warrant was issued charging appellee with embezzlement of $98.35. There was a preliminary hearing before a justice of the peace on this second warrant and appellee was bound over. Milder testified before the grand jury. Appellee was later tried and acquitted, and this suit was commenced.

On the day after the preliminary hearing before the justice of the peace, appellee’s attorney wrote a letter to appellant in which he told appellant of the arrest of appellee and of his having been bound over; that it seemed to the attorney that this should not have been a criminal prosecution; that there was a sharp difference between Milder and appellee as to the expenses of the office and commissions on one policy; that there was evidence corroborating appellee’s contention; that in view of the dispute a great injustice had been done'appellee; that there was so much feeling between appellee and Milder that there was no chance for them to get the matter settled, so the attorney was writing to appellant; that appellee felt sure that there was money due him from appellant, but that if, after an accounting, it was found that appellee owed the company he would pay it; that the writer would be glad to co-operate with appellant in an effort to have the matter fully settled, and asked for a reply. On July 23, 1925, appellant replied that it did not believe it should interfere with the trial, and that it appeared to appellant that the issues ought to be determined in court.

Two of the agents of appellee testified to two telephone conversations which Milder had with Cotter with reference to the shortage of appellee, in one of which Milder told Cotter that appellee had been 'arrested, and in the other Milder told Cotter that he thought the best thing to do was to get a warrant for appellee’s arrest, and the witness heard Milder say: “You want me to go ahead and do whatever I think best.” Milder and Cotter admit talking over the ’phone but deny that the arrest of appellee was mentioned.

In Glenn v. Lawrence, 280 Ill. 581, on page 585, it was said: “The facts which will sustain an action for malicious prosecution are (1) the commencement or continuance of an original, criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff.” A corporation is not liable for a malicious prosecution where it is instituted without its authorty or ratification. (Hancock v. Singer Mfg. Co., 174 Ill. 503.) A corporation, though not originally responsible for the tort of its agent, may pursue a course of conduct which will amount to a ratification. (Schramko v. Boston Store of Chicago, 243 Ill. App. 251.) If, notwithstanding, the advice of counsel, a criminal prosecution is insti. tuted for the purpose of forcing the collection of a debt, without probable cause appearing that a crime has been committed, the party so prosecuting cannot shield himself behind the advice of counsel. (Bortfeld v. Rippetoe, 222 Ill. App. 504.) Probable cause exists where the circumstances are such as to induce a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person against whom the prosecution is brought is guilty of the crime charged. (Chicago, R. I. & P. Ry. Co. v. Pierce, 98 Ill. App. 368; Harpham v. Whitney, 77 Ill. 32.) Want of probable cause is not shown alone by the acquittal of the accused. (Anderson v. Friend, 85 Ill. 135.)

Whether Milder was acting as the agent of appellant and with its knowledge and consent at the time he swore out the warrant for appellee; whether appellant later ratified his action in that respect; and whether there was probable cause for such action, were all questions of fact for the jury under proper instructions from the court. Milder was the State agent of appellant and was in charge of its business throughout the State. He negotiated the contract with appellee and signed it on behalf of appellant. After the contract was signed, appellee was under the jurisdiction of Milder. The contract provided that the premiums should be sent directly to appellant who was to pay the commissions. Milder took it upon himself to authorize appellee to disregard this provision and to pay commissions out of the premiums.

According to the written statement made on the day appellee resigned, he had collected $147.53; yet he had paid out $379.18, of which amount $350 was borrowed by him from appellant. It is apparent that Milder was extremely hostile to appellee. When he went to the State’s attorney he did not state all of the facts, especially with reference to his permission to appellee to apply premiums to the payment of commissions. He was first told by the State’s attorney that his case would be hard to prove. Milder then produced the signed statement of appellee. We do not see that this writing added much to the facts already disclosed. It simply admitted that fees of $147.53 had been collected. We are of the opinion that all of the evidence shows a want of probable cause and that the warrant was sworn out more in a spirit of malice and for the purpose of collecting an alleged debt, rather than for the purpose of punishing a violation of the law. This is apparently the view taken by the jury. This view is strengthened by the fact that immediately after the warrant was sworn out, Milder visited two newspaper offices for the purpose of seeking publicity against appellee. There is evidence tending to show that he stated he would like to stay in town and see appellee after he had been arrested, and he told one of appellee’s agents to be at a certain place at a certain hour to witness that spectacle.

Even if there was no probable cause, appellant is not liable unless Milder, in swearing out the warrant, was acting for appellant, or unless appellant later ratified his acts. The letter written by the attorney for appellee, the next day after the preliminary, showed a willingness for an accounting and an agreement to pay if anything was found due. This letter was at least a notice to appellant as to what had been done by Milder. The reply of appellant shows that it was in possession of the facts and.that it was acquiescing in Milder \s acts and desired to let the law take its course. Afterwards Milder went before the grand jury and secured the indictment. There is evidence tending to show that appellant knew the warrant was to be sworn out and had advised such action. This evidence was sufficient to justify the jury in finding that Milder acted with the knowledge and consent of appellant.

Instructions 9, 13 and 14 given on behalf of appellee announce the rule of law as to the institution of criminal prosecution on the advice of counsel. It is not claimed that these instructions are erroneous, but it is claimed that the same rule of law is stated in each instruction and that it was unduly emphasized. There is force to this objection and the trial court could well have refused at least two of said instructions, but its failure to do so in this instance did not amount to reversible error. Our attention is called to the fact that appellant was also guilty of the same offense. Error is assigned on the sixteenth instruction given on behalf of appellee. This instruction was apparently copied from Neufeld v. Rodeminski, 144 Ill. 83, where it was held that it did not constitute reversible error. There was no error in the fourth instruction as modified.

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

Judgment affirmed.


author: Mr. Justice McSurely

text:
      McDougall Company, Appellee, v. R. F. Woods, Appellant.
    Gen. No. 32,068.
    1. Appeal and error — purpose of statute permitting appeals from interlocutory orders. The primary purpose of the statute permitting appeals from interlocutory orders is to permit a review of the exercise of the chancellor’s discretion to determine whether the orders probably were necessary to sustain the status quo and preserve the equitable rights of the parties, and it is not the purpose to provide for a review of the rulings of the trial court on demurrers or to secure from the reviewing court its judgment on demurrers before the trial court has ruled thereon.
    2. Appeal and error — matters reviewable on appeal from interlocutory orders for temporary injunction and receiver pendente lite. On an appeal from interlocutory orders granting a temporary injunction and appointing a receiver pendente lite upon averments of a bill that the agent to collect money for the complainant, having under his control the only books showing such collections and accounts of sales, refuses to account for money collected, refuses to allow the complainant to examine the books and has not truthfully disclosed the names of the purchasers nor the statement of their accounts, the court will not pass upon the demurrability of the bill or the merits of the cause, and will merely determine whether the bill presents circumstances which lead to a belief that probably the complainant will be entitled to the relief.
    3. Injunctions — when temporary injunction against agent collecting principal’s funds is proper. Under the averments of a bill that the agent to collect money for the complainant, having under his control the only books showing such collections and accounts of sales, refuses to account for money collected, refuses to allow the complainant to examine the books and has not truthfully disclosed the names of the purchasers nor the statement of their accounts, it is proper temporarily to enjoin the defendant from collecting or receiving any money which equitably belongs to the complainant and from using any of said funds for his own use.
    4. Receivers — when appointment of receiver pendente lite to collect funds under agent’s control is proper. Under the averments of a bill that the agent to collect money for the complainant, having under his control the only books showing such collection and accounts of sales, refuses to account for money collected, refuses to allow the complainant to examine the books and has not truthfully disclosed the names of the purchasers nor the statement of their accounts, it is proper to appoint a receiver pendente lite with power only to collect and receive all funds belonging to the complainant and to discover assets belonging to it.
    5. Injunctions — when granting temporary injunction without notice is proper. It is not error to grant an order for temporary injunction without notice where it appears that defendant could not be served with notice because his place of business was closed and no one was in charge, and that attorneys who had represented the defendant in matters set forth in the bill of complaint stated, upon service of the notice on them, that the defendant was out of the jurisdiction of the court and that they had no interest in the litigation.
    6. Receivers — when appointment of receiver pendente lite without notice is proper. It is not error to grant an order for the appointment of a receiver pendente lite without notice where it appears that defendant could not be served with notice because his place of business was closed and no one was in charge, and that attorneys who had represented the defendant in matters set forth in the bill of complaint stated, upon service of the notice on them, that defendant was out of the jurisdiction of the court and that they had no interest in the. litigation.
    7. Appeal and error — bonds for temporary injunction and receiver pendente lite as not subject to review. On an appeal from interlocutory orders granting a temporary injunction and appointing a receiver pendente lite, it was not the province of the court to pass on questions concerning the amount of the bonds.
    Hatchett, J., dissents.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed January 16, 1928.
    Rehearing denied and opinion modified January 28, 1928.
    Baker, Holder & Schmidt and Moses, Kennedy, Stein & Bachrach, for appellant; Walter Bachrach, Leroy W. Holder and Isaac E. Ferguson, of counsel.
    O’Connell, Herr & Arvey, for appellee; Simon Herr and K. B. Czarnecki, of counsel.

      Motion by appellant for leave to file petition for mandamus directing the Appellate Court to change its opinion denied by Supreme Court February 15, 1928.

   Mr. Justice McSurely

delivered the opinion of the court.

This is ail appeal from interlocutory orders appointing a receiver and granting a temporary injunction entered upon the recommendation of a master in chancery. The hill was filed July 2, 1927, and defendant demurred thereto, which demurrer, we are informed, is still pending.

Briefly summarized, the bill alleges a contract between the complainant, an Indiana corporation, and defendant, a resident of Chicago, whereby defendant was to sell in Cook county, Illinois, certain kitchen equipment shipped to him by complainant. The accounts of sales by defendant were to be assigned to complainant, but when requested defendant was to make these collections.' Defendant was to keep books showing such accounts and complainant was given the right to examine the same at any time for the purpose of ascertaining the names of purchasers. The bill asserts that the defendant has not truthfully disclosed the names of such purchasers nor the statement of their accounts and refuses to forward monies collected by him and refuses to permit complainant to examine his books. The contract, in terms, made defendant the agent of complainant with reference to collections, and the bill alleges that defendant has a considerable sum of money in his hands belonging to complainant, for which defendant refuses to account. The bill prayed for an accounting and an injunction and the appointment of a receiver. Interlocutory - orders were entered, enjoining the defendant from collecting any monies which belonged to the complainant and from using any of said funds for his own use, and also appointing a receiver for the purpose of collecting any funds belonging to complainant.

Defendant argues that the bill states no cause of action; that chancery has no jurisdiction over the defendant and like matters, all of which questions are raised by the demurrer filed.

In appeals from interlocutory orders it is not our province to determine the rights of the parties in the subject matter of the litigation, but simply to determine from the averments of the bill whether the party probably is entitled to the relief sought. Where such an order is improvidently granted without notice, in a case where notice should have been given, or where the statute requires a bond as a condition precedent and none has been given, the interlocutory orders so improvidently granted will be reversed without reference to the merits of the cause.

In Railton v. People, 83 Ill. App. 396, it was said:

“Counsel confuse the interlocutory control of the property, by appointment of a receiver pendente lite, with a final order determinative of the rights of the litigants. It is true that the interests of appellant could not be finally disposed of in this suit until she had been given her right to be heard in defense. But here there is no final adjudication. The court merely sought by its interlocutory order to preserve the estate until a final determination might be had.”

In Love v. Love, 145 Ill. App. 150, opinion by Mr. Justice Adams, it was held that an interlocutory appeal does not bring the merits of the controversy before the reviewing court:

“It is not intended or contemplated by the statute authorizing appeals from interlocutory orders appointing receivers, that on such appeals questions relating to the merits of the causes in which the interlocutory orders are entered shall be considered and passed on by the reviewing court. ’ ’

See also High on Injunctions, 4th Ed., p. 9.

In Alleanza Italiana v. Papa, 199 Ill. App. 401, it was held that on appeal from an interlocutory injunction the Appellate Court will .not pass upon the sufficiency of the bill or whether it will be obnoxious to a demurrer.

In Baird v. Community High School Dist. No. 168, 304 Ill. 526, it was held that it was not sufficient ground for refusing a preliminary injunction, that it is not absolutely certain that complainant has the right he claims, but that if the bill of complaint states facts which prima facie give a right to such relief, the courts should grant a temporary injunction, which will have no more effect than the mere maintenance of the status quo. In High on Receivers, chapter 1, section 8, it is said that the reviewing court, without forestalling or anticipating the final decision of the cause, will give consideration in reviewing an interlocutory order to the probability that the plaintiff will ultmately be entitled to a decree in his action.

The statute permitting appeals from interlocutory orders was not intended primarily to provide for a review by this court of the rulings of the trial court on demurrers or to secure from this court its judgment on demurrers before the trial court has ruled thereon. A bill, when first filed, is frequently demurrable, especially bills for injunctions which are usually hurriedly prepared, but which may be made good by proper amendments which the first court has power to allow. We have no such power. The primary purpose of the statute is to permit á review of the exercise of the discretion lodged in the chancellor with the purpose of determining whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties.

We do not feel called upon to pass upon the demurrability of the bill or the merits of the cause. It is enough to say at present that the bill presents circumstances which lead to a belief that probably the plaintiff will be entitled to relief. The essence of the bill is the averment of a fiduciary relationship between the parties, in which defendant in the matter of collections made by him was the agent of complainant, having under his control the only books showing such collections and the accounts. There was no impropriety fin temporarily enjoining the defendant from collecting or receiving any monies which equitably belonged to the complainant and from using any of said funds for his own use. The receiver is not a general receivership, but is given the power only to collect and receive all funds belonging to the complainant and to discover assets belonging to it.

It is said that it was improper to enter the orders without notice. The record shows an affidavit, by a law clerk in the office of complainant’s solicitors, that an effort was made to serve the defendant with notice, but defendant’s place of business was closed and no one was in charge; that the following day a notice of the pendency of the motion was served by leaving a copy with the attorneys who had represented the defendant in negotiations relative to matters set forth in the bill of complaint, and that said attorneys told affiant that the defendant was out of the jurisdiction of this court and that they had no interest in the litigation. Under such circumstances it was not error to grant the orders without notice.

Some question is raised concerning the amount of the bonds, but such questions should be addressed to the chancellor.

No grounds, which we can now consider, appear for holding that the orders were improvidently entered and they are therefore affirmed.

Affirmed.

O’Connor, J., concurs.

Mr. Justice Matchett dissenting: I think the order appointing the receiver should be reversed.