text:
    Emily A. Pfeffer, Appellee, v. Farmers State Bank of Schaumburg, Appellant.
    Gen. No. 35,257.

      Opinion filed November 9, 1931.

      Boos & Boeger and Church, Haft, Bobertsoh & Crowe, for appellant.
    Wettest, Pegler & Dale, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by defendant from a judgment in the sum of $5,211 entered upon the finding of the court in an action in the case.

The original declaration named as defendants the bank and its cashier, W. C. Kreft. Upon trial the court found both defendants guilty, whereupon plaintiff dismissed the cause as to Kreft and filed an amended declaration charging the bank alone. To this the defendant bank filed a plea of the general issue and a special plea setting up the statute of limitations. Plaintiff demurred to the special plea, and the court sustained the demurrer. Propositions of law were submitted by the parties and the court made a finding and entered judgment as heretofore stated.

The principal contention of defendant is that the court erred in sustaining plaintiff’s demurrer to the plea of the statute of limitations.

There is no dispute as to the facts. On May 22,1924, plaintiff purchased a store with dwelling rooms in Schaumburg, Illinois. The property was incumbered by a trust deed made to secure an indebtedness of $7,000 which had been placed thereon by a former owner. This incumbrance had been passed on to successive purchasers who from time to time took title. The trust deed, the notes, the insurance policy, etc., were in the possession of the defendant bank which made the original loan and its renewals.

In her purchase of the premises plaintiff was represented by her agent, Bobert McNair. On the day following her purchase, May 23, 1924, McNair went to defendant bank to get the insurance policy for the purpose, of talcing it to an officer of the insurance company in order that the consent of the insurance company for the assignment of the policy to plaintiff might be executed. He found Kreft in sole charge of the bank. Kreft told McNair he would not let the insurance policy' go out of the bank but said he would take care of getting the consent of the insurance company to the assignment. A week later McNair again called at the bank and again found Kreft in sole charge and asked if the consent to the assignment had been executed. Kreft told him it had been executed and showed him the policy bearing the purported signature of the secretary of the insurance company signed in proper form. Kreft then returned the policy to the vault of the bank where it remained for several months.

September 17, 1924, the building in question was totally destroyed by fire resulting in a loss of more than $12,000. Proof of loss was served on Pfingsten, secretary of the insurance company. The company denied liability on the ground that the consent to the assignment had not been signed by its secretary. Plaintiff sued the insurance company, and the case was twice tried. She was unable to make out a prima facie case because the proof showed that the consent of the insurance company to the assignment had not' been in fact executed by an officer of the insurance company and that as a matter of fact the name of the secretary of the insurance company was signed thereto by Kreft without authority.

The insurance policy was issued March 22, 1920, and it was in the possession of the bank for several years. While the papers were in the possession of the bank Kreft signed the name of Pfingsten to the mortgage clause on the face of the policy, and May 5, 1923, he signed Pfingsten’s name to a form of consent to the assignment of the insurance policy from one Hoffman to Jordan and a year later signed Pfing-sten’s name to the consent requested by plaintiff. Besides being secretary of the insurance company, Pfingsten was a director of the defendant bank and a member of its finance and auditing committees; during the year 1923 he was vice president.

Defendant says the amended declaration states a new cause of action; that the original declaration charged both defendants with joint negligence, while the amended declaration charges negligence against the bank alone upon the theory of respondeat superior. Defendant cites cases which recognize the difference in the nature of such classes of actions. Defendant says that if Kreft was not guilty then the bank could not be guilty. If Kreft was guilty, then the bank, if found guilty, would have a right of action over against •him, while in cases of joint negligence one joint tortfeasor is not- liable over in an action by the other feasors. Defendant states that the books are full of authorities where each of several defendants is charged with separate acts which, it is alleged, combined to bring about the injury complained of, and that in such cases the courts have quite uniformly held that if any of the acts complained of would in itself be sufficient to have caused the injury, then a recovery may be had against the defendant whose act in itself was the cause of the injury, even though it appears from the evidence that the other defendants are not guilty, in consequence of which they are so found and dismissed out of the case. In such case, defendant argues, a sufficient cause of action is alleged in the declaration in each instance against each of the several defendants, and that consequently the amendment of the declaration so as to charge one defendant alone with the act complained of against him in the original declaration, does not state a new cause of action because a sufficient cause of action was stated against him in the first pleading. Such, it is said, is not the case here. No individual' acts of the two defendants, Farmers State Bank of Schaumburg and Kreft, are charged in the declaration, but a single act is charged and they are together alleged to have performed that single act. In other words, defendant relies upon the distinction between concurrent and joint negligence pointed out in many 'of the cases. Cleveland, C., C. & St. L. Ry. Co. v. Eggmann, 71 Ill. App. 42; St. Louis, B. & S. Co. v. Hopkins, 100 Ill. App. 567; Anderson v. West Chicago St. R. Co., 200 Ill. 329; Hayes v. Chicago Telephone Co., 218 Ill. 414; Buck v. Rosenthal, 273 Ill. 184, with other cases, are cited.

The precise question has been presented and the contrary held in Skala v. Lehon, 343 Ill. 602, after a careful review of the authorities. It appeared in that case that the plaintiff - filed suit against three defendants, charging negligence on their part in the operation of an automobile owned and operated by them, by reason of which a collision occurred with the automobile in which the plaintiff was riding. A declaration of six counts was filed. The cause came on for trial, and after the evidence was heard the suit was dismissed as to two of the defendants. There was then filed an amended declaration of two counts, one of which charged the remaining defendant liable upon the doctrine of respondeat superior. As here, to this amended declaration defendant filed a. general issue and a, plea of the statute of limitations, to which the court sustained a demurrer, and there was a verdict for plaintiff with judgment thereon.

The opinion of the Supreme Court states that the only issue involved is whether the trial court erred in sustaining the demurrer to the plea of the statute of limitations, the amended declaration having been filed more than two years after the date of the injury, and that the correctness of the ruling of the trial court depended on whether the declaration charging negligence of defendant by his agent was a different cause of action from the original declaration charging negligence against the three defendants. It was there argued by defendant that a master or servant could not be jointly charged as tort-feasors, and that since the original declaration charged the three defendants as joint tort-feasors and the amended declaration charged one alone as liable on the doctrine of respondeat superior, the causes of action were not the same. The court states that the question had not theretofore been squarely presented to the court, but after reviewing many authorities from different jurisdictions says:

“It may not-be perceived, then, in the case at bar, that the cause of action against Lehon in the original declaration is a different cause of action from that presented in the amended declaration. Even though it appear on proof that Briner, who was named as joint tort-feasor with Lehon and who committed the injury, was the servant of Lehon, the liability of Lehon is none the less proved as charged by the allegations of ultimate fact in the declaration. An amendment to meet such proof does not amount to a different cause pf action against Lehon but is the same cause of action. The amended declaration charges the same act against Lehon through his agent or servant acting within the scope of his employment and states no different cause of action from that in the original declaration, which makes no reference to such relationship. We conclude that the rule announced in the cases last cited not only represents the weight of authority in this country but is based upon sound reason.”

Defendant in its reply brief states with reference to this case that “. . . the Supreme Court inadvertently overlooked the exception to the rule, prevailing where a master and servant were sued jointly for the act of the servant for which it was sought to hold the master upon the principle of respondeat superior.” And adds: “As your Honors will note none of the cases cited by us are referred to in the opinion in the Skala case. They were all overlooked by both court and counsel.”

Where a decision of the Supreme Court is squarely in point, as is this, it is for this court to follow the rule as announced by our highest judicial tribunal, leaving to that court itself any corrections it may deem necessary. Moreover, the rule as announced in this decision seems.now to be the law by virtue of the amendment to section 39 of the Practice Act enacted in 1921 (see Cahill’s Ill. St. ch. 110, If 39, and Zister v. Pollack, 262 Ill. App. 170). Defendant in its reply brief argues that this amendment is void as violating section 13 of article 4 of the Constitution of 1870 because the subject of the amendment is not expressed in the title of the amendatory act nor is the amendatory matter germane to the original matter contained in said section 39. Many cases are cited which it will be unnecessary to review. Obviously, that question cannot be successfully raised in this court. We hold the trial court did not err in sustaining the demurrer.

Defendant next contends that if there is any liability it is that of Kreft alone. It points out the evidence (which is not contradicted) to the effect that the dealings of McNair, plaintiff’s agent, with reference to the insurance policy were altogether with Kreft; that Kreft alone had physical possession of the documents; that he said he would personally attend to the matter of getting the consent of the insurance company, and that he personally put the purported signature of Pfingsten, the secretary of the insurance company, on the policy. Defendant points out that the court held as a matter of law that there was no necessity for taking the insurance policy from the bank in order to procure the written consent of the insurance company, and that if it appeared from the evidence that plaintiff or her agent dealt with Kreft personally, defendant should be held not guilty; further, that as a mixed question of law and of fact the court held in substance that in signing the name of Pfingsten to the assignment, Kreft was not acting as the agent of defendant. Hence, defendant argues, the undertaking was entirely personal to Kreft and that the acts in connection therewith in no sense were those of the defendant bank; that Kreft says that he acted with the honest belief that he had authority to sign Pfingsten’s name and that he was the agent of plaintiff and not the agent of the defendant bank in the transaction. Moores v. Citizens’ Nat. Bank, 111 U. S. 156, and Jemison v. Citizens Savings Bank, 9 L. R. A. (Texas) 708, are cited as applicable.

"We have not been convinced by the arguments or the citations. There is not a scintilla of evidence in the record from which the court could have reasonably found that Kreft had any personal interest in this transaction. He was the cashier of the bank and at times had sole charge of its affairs. He, personally, had no interest in the mortgage. The bank did have such an interest in it. Kreft’s possession of the papers was the possession of the bank, not his individually. That the cashier of a bank is the general agent for the transaction of the business of the bank has been held in numerous well-considered cases. (Squires v. First Nat. Bank, 59 Ill. App. 134; First Nat. Bank v. Seass, 158 Ill. App. 122; Hansel v. First Nat. Bank, 158 Ill. App. 127; Ryan v. Dunlap, 17 Ill. 40.)

Moreover, in this case the by-laws of defendant bank are in evidence, one of which in substance provides that the cashier shall insure the interest the bank may have in any building or property liable to loss by fire and windstorm and protect its interest in "all tax sales or foreclosures. Kreft was therefore the sole officer of the defendant bank clothed by general law and by-laws of the bank with authority to transact such business as was committed to the bank by plaintiff’s agent. Indeed, so far as this record indicates, the' bank functioned through Kreft alone. The bank had a substantial interest in the property. It had held that interest through many years and under successive owners. The transaction with plaintiff was for the bank, not Kreft individually. It is true, as defendant contends, that Kreft was not authorized by the bank to forge Pfingsten’s name to the consent. New torts of that kind by servants are ever authorized. A corporation is not usually organized for the purpose of committing torts. Nevertheless, in a proper case a corporation is liable for the torts of its servants and employees if the same are committed by them while acting within the scope of authorized business. The false representations here were torts of that character, and for such representations of Kreft the bank is in this case liable.

Defendant next contends that the consent of the insurance company to the assignment of the insurance contract was not necessary in order to protect plaintiff’s interest. This contention is based on the well known rule that a contract of insurance is construed most strongly in favor of the insured. Defendant cites Budelman v. American Ins. Co., 297 Ill. 222; American Smelting & Refining Co. v. Bunker Hill & Sullivan Min. & Con. Co., 248 Fed. 172, with many other cases. It is, we think, wholly unnecessary to ’ review these cases. Not one of them holds (and we doubt whether a case can be found in the books holding) that in a case like this an insurance company would be bound unless it gave- consent to the assignment. This policy expressly provides that the insurance company shall not be bound without its consent. (See 16 Am. & Eng. Ency. of Law, 843; 2 Cooley’s Briefs on Insurance, 1765; 26 Corp. Jur. 130.)

Defendant makes the further point that as the supposed consent of the assignment to plaintiff’s vendor, one Jordan, was also made by Kreft and was unauthorized and therefore invalid, Jordan had no interest to assign to plaintiff and that defendant is therefore not liable. This contention, we think, can hardly be urged seriously. Irrespective of the fact that plaintiff’s vendor did not have a valid interest, the consent, if it had been obtained, would have created a new and valid contract between plaintiff and the insurance company which would have given her full protection. (East St. Louis Lumber Co. v. United States Branch of London Assur. Corp., 246 Ill. App. 574; 14 R. C. L. 1007, 1429.)

It is next urged that the court erred in refusing to hold as requested that Pfingsten ratified the act of Kreft in signing Pfingsten’s name to the consent. Kreft testified in substance that the morning after the fire he told Pfingsten that he had placed his name on the assignment and asked him whether it was all right; that Pfingsten replied in a casual way, “I guess so.” He also testified that at a meeting of the board of directors of the bank held after the fire, Pfingsten said that Jordan, plaintiff’s vendor, had not paid his assessment. From this evidence, it is argued that Pfingsten ratified Kreft’s act in signing his name and that the insurance company is liable to plaintiff. When the conversation between Pfingsten and Kreft took place the loss had already been incurred and the rights of the parties fixed, and Pfingsten could not at that time by such a casual conversation place on the insurance company the liability to pay a loss for which it was npt liable. Action by the board of directors, at least, would have been necessary to bring about that result.

Defendant’s next point is stated to be: “The acts complained of are ultra vires the defendant bank, and for that reason, among others, the bank is not liable.” Most torts, we observe, are ultra vires corporations, but a principal is liable to third persons for frauds, deceits, misrepresentations, torts, negligence, and other malfeasances or misfeasances and omissions of duty, by an agent in the course of his employment, although the principal did not participate in or know of the particular wrong. Indeed, the principal would in some cases be liable even if he had disapproved of or forbidden the act. (Gallagher v. Singer Sewing Machine Co., 177 Ill. App. 198; Moir v. Hopkins, 16 Ill. 313; Keedy v. Howe, 72 Ill. 133; Chicago City Ry. Co. v. McMahon, 103 Ill. 485; Faber-Musser Co. v. Dee Clay Co., 291 Ill. 240, 242.)

It is further contended that the acts of Kreft did not constitute either fraud or fraudulent representations for the reason that Kreft, as it is said, believed that he had authority to sign Pfingsten’s name and that at the most it can only be said that he made an hpnest mistake in judgment. Murphy v. Murphy, 189 Ill. 360; Grubb v. Milan, 249 Ill. 456; Keithley v. Mutual Life Ins. Co., 271 Ill. 584, and many other decisions from the Supreme and Appellate Courts of this State are cited. These decisions hold in effect that to constitute fraud in law a representation must be the affirmance of a fact and not a mere promise or an intention. Such cases are not applicable to the facts here. It will be remembered that plaintiff’s agent returned a week after receiving defendant’s promise to obtain the consent, and at that time defendant, through Kreft, showed the consent to him apparently properly executed and told him that it had been so executed. Such was not the fact. Defendant, through its cashier, knew the representation was not true. It was made with the intention to deceive, and it did deceive. Plaintiff relied upon it and was damaged through such reliance. If this is not fraud, it is very difficult to understand what would be.

Defendant again says that plaintiff has not been damaged; that the record shows that she could sue again and recover. We have already disposed of this contention. Plaintiff has twice sued and failed, and the record does not disclose a request by defendant to assist her in maintaining the suit or in establishing the liability of the insurance company.

Finally, defendant contends that the court erred in allowing plaintiff to recover interest and cites section 2, chapter 74 of the revised statute, Cahill’s St. ch. 74, U 2; that defendant has defended this suit in the utmost good faith, and that it is not guilty of vexatious delay of payment. We do not think the trial court allowed interest upon that theory. While this action is in form in tort, the damages disclosed are liquidated and easily ascertainable. For that reason the interest was properly allowed. (Schwitters v. Springer, 236 Ill. 271; Laughlin v. Hopkinson, 292 Ill. 80; Genslinger v. New Illinois Athletic Club, 252 Ill. App. 298.)

The judgment of the trial court is affirmed.

Affirmed.

O’Connor, P. J., and McSurely, ,J„ concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Gustav E. Seegren, Appellant, v. Theodore F. Decker et al., Appellees.
    Gen. No. 35,606.

      Opinion filed November 12, 1931.
    Ernest A. Eiclund and Frederick J. Bertram, for appellant.
    Pritzker & Pritzker, for certain appellee; Arthur J. Goldberg, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

This is an appeal from an interlocutory order extending : a receivership to protect the interests of Herman S. Strauss, complainant, in a certain other cause pending in the circuit court of Cook county as case No. B-212247, wherein said Strauss sought to foreclose a prior incumbrance on the same property.

On October 17, 1929, Gustav E. Seegren, as complainant, filed his verified bill of complaint in the .circuit court as case No. B-189957 to foreclose a trust deed dated May 15, 1929. The bill alleges that the trust deed sought to be foreclosed is subject to the lien of a prior trust deed made by Clarendon Club Building Corporation to Herman S. Strauss, trustee, securing an indebtedness aggregating $250,000; that the makers of said prior indebtedness have defaulted in payment of monthly deposits on account of the principal and interest; that on the first day of October, 1929, there was past due and unpaid, on account of said principal, $2,500 and interest amounting to $1,506.25; that the premises are scant security for the payment of the first mortgage indebtedness secured thereby. Incidental to the main relief sought, there is a prayer for the appointment of a receiver pendente lite.

On October 18,1929, the Union Bank of Chicago was appointed receiver on complainant’s motion. Thereafter Herman S. Strauss, trustee, petitioner herein, served notice on complainant’s solicitors that he would appear before the chancellor, to whom the instant case was assigned, and present a petition asking that an order might be entered extending the receivership to case No. B-212247, also pending in the circuit court. The petition is verified and alleges in substance that petitioner is complainant in the case entitled Herman S. Strauss v. Clarendon Club Building Corporation, and seeks therein to foreclose a trust deed on the same property involved in the instant case; that said trust deed provides that in the event of a default of any of the conditions contained therein, a receiver might be appointed to take charge of the premises and the rents, issues and profits therefrom; that the premises are scant security for the lien of the trust deed being foreclosed by petitioner in case No. B-212247, and that the signers of said trust deed and bonds are not-responsible for any deficiency decree that might be entered.

To this petition, complainant filed an answer, setting up that the trust deed therein sought to be foreclosed is a first mortgage upon the real estate in question, and that petitioner, as complainant, is entitled to have the premises sold in said proceedings for the use and benefit of such trust deed free and clear of all other mortgages or liens, and sets out facts tending to show that the actual value of the premises securing both petitioner’s and complainant’s trust deeds at the time of the filing of said petition was in excess of the mortgage indebtedness, and, therefore, ample security for the lien of Herman S. Strauss, as trustee.

On July 31, 1931, upon the hearing of the motion, Seegren offered to prove that the real estate in question was ample security for the trust deed of Herman S. Strauss, as trustee, but the court refused to consider the evidence, holding it to be irrelevant and immaterial. The chancellor then entered the order extending the receivership to the case entitled Strauss v. Clarendon Club Building Corporation, for the benefit of the complainant and the holders and owners of the bonds and interest coupons secured by the trust deed therein being foreclosed.

As ground for setting aside this order, it is first urged that (1) the petition of Herman S. Strauss was insufficient in form to entitle the petitioner to relief because it did not contain the requirements of a bill of complaint or of any regular chancery pleading, and that (2) petitioner was not a party to the suit, and, therefore, not entitled to obtain relief or participate-in the proceeding until or unless he became a party by leave of court and the filing of appearance and pleadings in the case. A similar situation existed in the recent case of Goldberg v. Hoffman, 262 Ill. App. 112, wherein this court sustained an order for the extension of a receivership upon an unverified petition at the instance of one who was not a party to the proceeding, and with reference to the contention that one not a party in interest may not intervene, said: “Parties in interest may assert their rights by intervention, notwithstanding that they may be neither necessary nor proper parties complainant or defendant to the main cause in which the receiver has been appointed. ’ ’

It is next urged that the petition of Herman S. Strauss was insufficient in substance to entitle him to relief, in that it alleged only the provisions of the trust deed for the appointment of a receiver “to take charge of the premises and the rents, issues and profits therefrom, ’ ’ in the event of a default, and that the premises being foreclosed in the instant case are scant security for the lien of the trust deed foreclosed in case No. B-212247. In this connection it is urged that the order for the extension of a receivership is, in legal contemplation and effect, equivalent to an ordinary appointment, and that all the necessary requirements, statutory and otherwise, which are prescribed in the making of an original appointment, must be fulfilled. This contention was also made in the case of Goldberg v. Hoffman, supra, and there held to be untenable. Complainant’s argument is evidently predicated on the erroneous assumption that an order appointing a receiver and an order extending the receivership are the same and are governed by identical principles. This is obviously not true. An order appointing a receiver is an extraordinary remedy, taking the property out of the custody of the owner. The law, therefore, imposes certain requirements appealing to the equitable consideration of the chancellor as conditions precedent to the granting of the relief sought. In this case a receiver had already been appointed and the court had already taken custody of the owner’s property. The extension order merely gave notice to all1.parties that the petitioner claimed an interest in the funds being collected by the receiver which would later be given effect if petitioner established his asserted prior lien, and if, at any time it became necessary to resort to the rents, issues, and profits. It would, therefore, follow from what has heretofore been stated, that the court properly refused to consider evidence on petitioner’s motion as to the value of the security, that question being irrelevant to the issue presented upon petitioner’s motion.

In the course of this appeal, Herman S. Strauss, by his attorneys, filed a motion herein to dismiss the appeal upon the ground that the statute providing for appeals from interlocutory orders is not sufficiently broad to include an appeal from an order extending a receivership. Inasmuch as briefs were filed by both of the parties to this appeal and the propriety of the order appealed from considered upon its merits, we find it unnecessary to pass upon appellees ’ motion.

We are of the opinion that there was no error in entering the order of July 31, 1931, extending the receivership, and the order is, therefore, affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


author: Mr. Presiding Justice Niehaus

text:
    Lantie Underwood, Appellee, v. W. V. Deahl and Ethel Deahl, Appellants.
    Gen. No. 8,453.
    Opinion filed November 4, 1931.
    H. J. Buxbaum, for appellants.
    A. O. and Ben F. Anderson, for appellee. '
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an appeal from a decree rendered in conformity to a creditor’s bill filed by the appellee, Lantie Underwood, against the appellants Wv Y. Deahl and Ethel Deahl. On a previous appeal this cause was reversed and remanded because of the failure to make L. Y. Cole, who held a first mortgage lien upon the real property involved, a party to the proceeding, which was brought to subject the premises involved to the lien of a judgment recovered by the appellee against the appellant W. Y. Deahl and others in the circuit court of Clark county. Upon the reinstatement of the cause in the court below, the bill was amended and Cole was made a party defendant; and he afterwards came into court and filed an answer; setting forth the rights and the interest he had in the premises in question; and claiming a prior lien to the alleged lien of the appellee. The decree finds that Cole’s lien is prior; and this is conceded by all the parties, and that the findings of the decree in that respect are correct. An amendment to the bill of complaint to make Cole a party defendant was first made and allowed by the 'circuit judge in vacation, and a summons' was issued thereupon returnable to the succeeding term of the court. Upon the coming in of court at the following term, on motion of the solicitor for the appellee, an amendment was again made and allowed by the court to the bill of complaint, for the purpose of making Cole a defendant to the bill. Solicitors for the appellant thereafter made a motion and raised the question on the validity of a vacation order for the issuance of the summons on the ground no notice had been given them of the application to amend the bill to make new parties. The court denied the motion and the ruling of the court in that respect is assigned as error. It is sufficient to say concerning this alleged error, that the order for the summons concerned only defendant Cole, who did not in any way question the order, but entered his appearance by filing an answer and thereby submitting himself to the jurisdiction of the court for the adjudication of his rights and interests in the subject matter of the suit. Any errors there may have been in this feature of the case were thereby waived by him; and the motion of the appellants to strike the motion of the appellee to amend the bill was properly denied by the court.

Appellants also made a motion to stay the proceedings in the court below until the appellee paid the costs incurred in this court on the previous appeal, which the court denied; also made a motion to compel the appellee to give a cost bond which was denied by the court. Error is assigned on the action of the court in denying the motions.. It is obvious that the errors assigned have no bearing upon the merits of the controversy, nor upon the substantial question involved in this appeal; and it is not necessary for the purposes of this opinion to discuss them.

The only substantial question presented for review is the legal propriety of the decree setting aside an alleged fraudulent conveyance of the real property which is the subject of this litigation, and described in the bill of complaint; the conveyance in question having been made by W. Y. Deahl to his wife Ethel Deahl, which the appellee seeks to set aside in order to subject the premises involved to an execution and to sale in satisfaction of her judgment in whole or in part.

The material facts alleged in appellee’s bill are that she recovered the judgment referred to for $2,073.37, in the circuit court of Clark county, on the 25th of September, 1925, for a pre-existing indebtedness due her from the appellant W. Y. Deahl. The recovery of this judgment is not denied; nor is it denied that this judgment was opened at the instance of the parties defendant including* the defendant Deahl; and that the court preserved the lien of the judgment until the merits of the defense were determined and that after the controversy arising from the defense pleaded, the judgment was sustained as originally entered on the 10th day of November, 1926.

The bill of complaint alleges that afterwards, while the judgment was in full force and effect and unsatisfied, an alias execution was duly issued to the sheriff of Clark county and was levied by the sheriff upon the real property in question. It is further alleged in the bill, that prior- to the recovery of appellee’s judgment, but after the indebtedness for which it was rendered had accrued, that the appellant W. V. Deahl was the owner of the property in question, and that he made a pretended conveyance of the property to his wife Ethel Deahl, and that this conveyance was made with the intention to defraud the appellee and other creditors of the appellant W. V. Deahl; that the appellant Ethel Deahl paid no consideration for said conveyance; and that the same was made to prevent a levy and sale of the property in question to satisfy appellee’s judgment.

The bill of complaint also alleges that the appellant W. V. Deahl at the time of the conveyance of the real property referred to, also conveyed to his wife all of his personal property, including all his stock of merchandise; and everything which was included in a restaurant which he was then operating in the City of Martinsville, as well as his household goods and chattels. The bill also alleges that appellant W. V. Deahl is a man of no pecuniary responsibility and was possessed of little or no property other than the property conveyed to his wife; and that he is involved in debt.

In their joint answer under oath to the allegations of the appellee’s bill of complaint, the appellants admit the recovery of appellee’s judgment as averred in the bill; and that on December 20, 1926, at the time of the issuance of the alias execution to the sheriff, the judgment was in full force and effect and unsatisfied; and admit that the appellant was the owner in fee simple of the real property in question previous to the rendition of appellee’s judgment. Appellants also admit in their answer that the appellant W. V. Deahl had become “a man of no pecuniary responsibilities and possessed of little or no property,” but deny, “that he is in embarrassed circumstances and involved and largely in debt because of any fraudulent conveyance.” They also admit in the answer that W. Y. Deahl “on said 15th day of September, 1925, being the day that defendant W. Y. Deahl conveyed the above described real estate to his wife, Ethel Deahl, the said W. Y. Deahl by a bill of sale consigned and transferred to his wife Ethel all the stock of merchandise and everything including the restaurant which he was operating or conducting in the City of Martinsville, Illinois, including his household goods.” But they deny that these conveyances of practically all of the real and personal property owned and possessed by the appellant W. Y. Deahl were fraudulent or made to hinder or delay creditors in the collection of their claims against the appellant W. Y. Deahl; but aver that they were made “in consideration of the sum of $1,400 received from said Ethel Deahl by the said W. Y. Deahl.” The answer does not explain why the deed of conveyance recites the consideration for the conveyance to be the nominal sum of one dollar, if a valuable consideration as stated in the answer really passed between the parties.

The only controverted question of fact in the case and arising upon the hearing before the circuit court was whether or not the conveyance of his real and personal property to his wife under the circumstances shown by the pleadings and the evidence should be regarded as fraudulent. We are of opinion that upon consideration of the averments in the bill, the admissions in the answer and the circumstances surrounding the transactions between the parties to the conveyanees, as shown by the evidence in the case, the court was warranted in its findings that the conveyance of the real estate was fraudulent and that the appellee was entitled to have the same subjected to lien of her judgment and execution; and to a sale for the satisfaction of her judgment in whole or in part as provided by the decree. The decree is therefore affirmed.

Decree affirmed.


text:
    Cora Lowdermilk, Plaintiff in Error, v. Harvey Gibbel, Defendant in Error.
    Gen. No. 8,466.
    Opinion filed November 4, 1931.
    James H. Murphy, for plaintiff in error.
    Jesse Peebles, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit was brought by Cora Lowdermilk, plaintiff in error, against the defendant in error Harvey Gibb el, in the circuit court of Macoupin county, to recover damages in the sum of $6,000, alleged to have been sustained by the plaintiff in error as the result of injuries suffered by her while riding in defendant in error’s car. The causes of action alleged in the different counts of the declaration are practically the same; and are predicated on the so-called “family purpose doctrine.”

The first count alleges in substance that the defendant in error was the owner of and in possession of a certain automobile which he had purchased and kept for the use, purpose and comfort of himself and the members of his family, including his wife; and that the wife was authorized and permitted by him to drive the automobile for her pleasure; and that on or about the 28th day of September, 1928, the plaintiff in error rode in the defendant in error’s automobile by the invitation of Norma Gibbel, defendant in error’s wife, who was then and there driving the automobile for her own pleasure on the hard surfaced road known as Route No. 4, near the City of Girard, that being one of the purposes for which the automobile had been purchased, kept and was owned by the defendant in error; and that while thus driving the automobile with the knowledge, consent and permission of the defendant in error, said wife was guilty of negligence in the management of the automobile which resulted in a collision with another automobile that was driving along the same road and resulted in injuring her. It is not charged in any of the counts of the declaration, nor does it appear in evidence, that the plaintiff in error was riding in the automobile at the instance of the defendant in error; or at his invitation or request ; or that the automobile was driven by the wife at the time of the injury, while she was performing some service for, or driven in connection with, the business of the defendant in error; nor that the plaintiff in error was in the automobile by the direction of the defendant in error, to carry into effect some purpose or undertaking of the defendant in error; nor that the defendant in error was in any way connected with or participated in the negligence charged against the wife in the declaration. Under section 4 of chapter 68 of our statute concerning joint and several rights gmd liabilities of husband and wife, Cahill’s St. ch. 68, If 4, it is provided that the husband is not liable for any civil injuries committed by a married woman; and that he shall not be responsible therefor except in cases where he would be jointly responsible with her if the marriage did not exist. Minasian v. Poff, 217 Ill. App. 8; Meyer v. Howlett, 233 Ill. App. 475, 478.

The “family-purpose doctrine” as a basis of liability of the owner of an automobile kept for family use and pleasure alone is not legally sufficient to involve the owner of an automobile in liability for the negligence of the members of his family. White v. Seitz, 342 Ill. 266.

We conclude, therefore, that under the facts as alleged in the declaration and the charges of negligence contained therein, the plaintiff in error had no cause of action against the defendant in error, and that a demurrer was properly sustained to the declaration. The judgment is therefore affirmed.

Judgment affirmed.


text:
    Modern Woodmen of America, Plaintiff in Error, v. Pearl Gregory Blair, Defendant in Error.
    Gen. No. 8,495.
    Opinion filed November 4, 1931.
    George G. Perrin, Punk & McKeene and George H. McDonald, for plaintiff in error.
    O. C. Carter and S. H. Cummins, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a writ of error is prosecuted by the plaintiff in error, Modern Woodmen of America, to review the action of the circuit court of Scott county in the rendition of a judgment non obstante veredicto in favor of the defendant in error, Pearl Gregory Blair, beneficiary in the fraternal beneficiary certificate for $2,000 which had been issued to Ernest H. Gregory in his lifetime by the “Order of Modern Woodmen of America.” The judgment is for the sum of $2,230.93. The defendant in error filed a motion, which was taken with the case, to strike the purported bill of exceptions from the record, for the reason that the bill of exceptions was not signed and sealed nor certified as a bill of exceptions by the trial judge, nor within the time allowed by the court for certifying and filing the same. A bill of exceptions which is not signed and sealed by the trial judge is fatally defective. Magill v. Brown, 98 Ill. 235, 238; Pieser v. Minkota Milling Co., 222 Ill. 139; People v. Powers, 200 Ill. App. 536, 540.

For the reasons above stated, the bill of exceptions referred to in this case never properly became a part of the record, and it is therefore stricken from the record. Inasmuch as the bill of exceptions is not a part of the record, the question arises whether there still remains a complete record in this court for review of the errors assigned. The record remaining is the common law record which includes the pleadings and rulings of the court concerning them, and the verdict of the jury and the judgment of the court. It is well settled that the matter of the right to a judgment non obstante veredicto must be determined from the pleadings. Manufacturers Finance Trust v. Stone, 251 Ill. App. 414; Tribune Co. v. Dunlap Mfg. Co., 201 Ill. App. 408; 11 Ency. of Pleading and Practice, p. 912; Teehan v. Union Bridge Co., 84 Ill. App. 532; Woods v. Hynes, 3 Ill. (Scam.) 103. The record in this case, therefore, must be regarded as complete for the purposes of review of the errors assigned. The declaration in this case avers that the right of recovery is based upon a benefit certificate issued to Ernest H. Gregory by the plaintiff in error; and that the defendant in error is named as beneficiary in the certificate; and that Ernest H. Gregory died on February 29, 1928; and that at the time of his death, he was a member of Modern Woodmen of America in good standing; and that in his lifetime he had kept, performed and complied with all the terms, provisions and conditions of the benefit certificate. The plaintiff in error pleaded in defense to these averments of the declaration which were material to the defendant’s right to recover, that the decedent Ernest H. Gregory was not a member in good standing at the time of his death; but had forfeited his right of membership and had been suspended as a member before his death for failure to pay his membership dues and benefit assessments to the Camp of which he was a member, and that thereby he became suspended as a member; and that since his suspension and at the time of his death, he had not been reinstated to membership as required by the provisions of the by-laws of the plaintiff in error in force and effect at that time.

To the pleas presenting the plaintiff in error’s defenses the defendant in error replied that prior to his death Gregory had paid all the membership dues and benefit assessments which were in arrears to the clerk of the Camp of which the deceased was then a member ; and that the clerk had received the same; and that thereby the deceased had become properly reinstated as a member of the order and the Camp to which he had belonged, in good standing.

The defendant in error also replied that by calling for proofs of the death of the deceased and the acceptance of them by the plaintiff in error it had waived its right to contest a recovery on the benefit certificate.

The matters pleaded by the respective parties pertaining to the right of recovery and in denial of such right are embodied in the declaration and the pleas, the legal sufficiency of which are not in question. The issues resulting therefrom, were submitted to a jury and the jury found these issues in favor of the plaintiff in error. It is evident that the trial court took a different view of the evidence adduced on the trial than the jury, and therefore rendered the judgment referred to, notwithstanding the verdict of the jury. It is well settled law, however, that the evidence cannot be considered in passing upon this question of the legal propriety of entering a judgment non obstante veredicto. “Since a judgment non obstante veredicto must be granted, if at all, upon the record, it follows that the evidence cannot be looked to in determining a motion for such judgment.” 11 Ency. Pleading and Practice, 917; Aldrich v. Mathias, 141 Ill. App. 590.

The practice of rendering such a judgment can be availed of only where the defendant has failed to plead any sufficient defense; 2 Tidds Practice, 920; 1st Chitty, 688; Stephens on Pleadings, 98; Black on Judgments, sec. 16; Freeman on Judgments, sec. 7; Hitchcock v. Haight, 7 Ill. (Gilm.) 604; German Ins. Co. v. Frederick, 58 Fed. 144; Teehan v. Union Bridge Co., 84 Ill. App. 532; Hartje v. Keeler, 133 Ill. App. 461.

“A judgment non obstante veredicto will not be rendered where there is substantially a material issue or a good defense although the pleading is technically defective.” 11 Ency. Pleading and Practice, 919, supra. “It is only in cases where it is very clear, that the defendant has no merits under whatever form his plea may be pleaded that the court will give judgment non obstante veredicto.” Aird v. Haynie, 36 Ill. 174. In this case the pleadings show a material issue and a good defense is pleaded by the plaintiff in error. Therefore under the authorities cited, we conclude that the entry of the judgment non obstante veredicto was erroneous and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Peoples Savings and Loan Association, Plaintiff in Error, v. Phoza M. Brinkoetter et al., Defendants in Error.
    Gen. No. 8,519.
    Opinion filed November 4, 1931.
    Carl N. Weilepp, for plaintiff in error.
    Deck, Jack & Boggess, for certain defendants in error; Thomas B. Jack and Jacob L. Walden, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a writ of error was prosecuted from a decree of the circuit court of Macon county by the plaintiff in error, Peoples Savings & Loan Association. There is no dispute in this case about the facts. Plaintiff in error makes the following statement in regard to the facts:

“This is a writ of error to review the action of the Circuit Court of Macon County in refusing to the complainant in foreclosure proceedings a deficiency decree against Joel B. Williams, Clara A. Williams or Delmar P. Belden, subsequent purchasers after the execution of a mortgage on property purchased by them from Phoza M. Brinkoetter and Alois L. Brinkoetter. There is no dispute as to the facts regarding the mortgage itself, the right to foreclose or any of the proceedings except in relation to the deficiency decree prayed for.

“The defendants in error, the Brinkoetters, on March 25, 1925, borrowed under its usual terms, from the plaintiff in error $4,800 and executed an obligation and mortgage therefor, and were assigned forty-eight shares of stock in the stock of plaintiff in error, according to its by-laws.

“The mortgage was on Lots 15 and 16 in Block 5 of Starr & Mill’s First Addition to the City of Decatur, and thereafter while the property was still owned by the Brinkoetters a payment of $400.00 was made on the mortgage and a partial release executed for the North 31 feet.

‘ ‘ The mortgage, among other tilings, provided :•

“ ‘It Is Also Agreed, that this mortgage is given by the Mortgagors and accepted by the said Association on the further express condition that in case of a sale of said described premises by the Mortgagors the purchaser thereof, and all persons claiming thereafter under or through such purchaser, shall be deemed to have assumed and to have become bound to pay to said Association the amount which may then be due, or that may hereafter become due, on said Obligation and this Mortgage; provided, however, that nothing in this paragraph contained shall release the said Mortgagors from personal liability on said Obligation and this Mortgage. ’

“After obtaining the partial release on October 21, 1926, the Brinkoetters conveyed all of these lots by warranty deed to the defendants in error, Joel B. Williams and Clara A. Williams as joint tenants, the deed to the Williams reciting: ‘Also subject to a mortgage of ($5050) and a lumber bill to Lyons Lumber Company for $350.’ The proof showed that this $5050.00 was the complainant’s mortgage and a second mortgage thereon.

“Thereafter on February 24, 1927, the Williams conveyed this property by warranty deed to the defendant in error, Delmar P. Belden, and recited in the deed as follows: ‘This deed is made subject to a mortgage to the Peoples Savings and Loan Association the unpaid portion of which is $4143.73.’

“When the Brinkoetters conveyed this property to Williams, he traded for other properties, both the properties of the buyer and the seller being taken at an agreed value, and when Williams conveyed this property to Belden, they entered into a contract of exchange by which it was stated that Belden took the property subject to a loan of $4143.73, held by the Peoples Savings and Loan Association, payable $55.20 per month. Also subject to a straight loan of $800.00 held by the Millikin National Bank on the store building on the rear of said lots. (This was the property for which the partial release was obtained.) Williams paid Belden $50.00 in cash to adjust the difference in values between the two properties.

“There was actually due to the Association at this time the said sum of $4143.73, which fact was ascertained by Williams and Belden.

“Belden took possession of this property and continued in the record ownership of the same until the foreclosure. He thereafter sold part of this property, described as ‘The South 121 feet of Lot 15 and the West 8 feet of the South 121 feet of Lot 16 in said Block 5,’ on September 26, 1927, to Carrie A. Hill, reciting in this contract that it was to be conveyed by good and sufficient warranty deed, free and clear of all encumbrances whatever, upon payment by Mrs. Hill as specified. He reserved the right to put a lien on said property and deliver the deed subject to the loan and when the contract had been paid down to the amount of the loan, Mrs. Hill took possession of this property and continued to pay regularly $42.50 on the first of each month until February 1, 1930, and thereafter by written cancellation she and Belden cancelled the contract. Belden made payments to the Loan Association of interest at various times and on one payment, on August 6, 1929, paid $110.00 which was the interest and a payment of $8.51 on the principal of the mortg’ag’e.

“The testimony shows that Belden was informed of the mortgage at the time of the execution of his deed. That inquiry was made and the exact amount due on the mortgage was ascertained and inserted in the deed. That he took the deed and recorded it. That he received the pass book furnished by the complainant with the mortgage, and his various payments were entered in such pass book as made by him. That the pass-book provided for a monthly payment of $55.20. That the pass book stated that for a copy of the charter and the by-laws or other desired information, application should be made at the office of the Association.

“Belden never kept up the payments as provided in the mortgage, and upon the date of default of the mortgage, there was due $300.04 more than the amount due when he accepted his deed and it was defaulted by the Board of Directors on March 17,1930 in the sum of $4423,77. In addition, Belden insured the property in his name and on or about July 16,1929, he made application to the complainant for a new mortgage on said premises in the name of Thomas and Carrie Hill, signed by himself, which application was refused by the complainant. He thereafter requested the complainant at various times for a partial release on this mortgage but never obtained same.

“This whole case now brings up the question as to whether the knowledge of the clause in the complainant’s mortgage and the taking of the property subject to the mortgage, and the acts of Belden thereafter, are sufficient to constitute a personal liability against Belden for the deficiency judgment which occurred upon the sale of this property under foreclosure.”

The covenant in the mortgage involved in the foreclosure proceeding referred to in the foregoing statement, namely, that in case of a sale of the mortgage premises by the mortgagor, the purchaser thereof and all persons claiming the premises thereafter through or under such purchaser, shall be deemed to have assumed and to have become bound to pay the plaintiff in error the amount which may then be due or thereafter become due on the mortgage, was a contract entered into solely between the mortgagor and the mortgagee; and yet was intended to bind third persons not parties to the contract. It is elementary law that third persons cannot be bound by a contract thus made which is personal in its character and effect, unless such third persons have become parties to it, either by expressly or impliedly assuming the obligations thereof. The plaintiff in error insists that the defendants in error became bound by the covenant referred to as a matter of law by the mere fact that they became purchasers of the premises, and as such purchasers respectively accepted the deeds conveying the premises and which deeds provided by a clause inserted therein that the conveyance was made subject to the mortgage of the plaintiff in error for the unpaid portion of the mortgage indebtedness; and that the defendants in error had notice of covenant by the record of the mortgage, which contained the provision that each of them would incur a personal liability to pay the mortgage indebtedness. It is conceded by the plaintiff in error that that was no express assumption of the obligation by the defendants in error to pay the mortgage indebtedness ; but it insists that such assumption of the obligation to pay the indebtedness is legally implied from the fact that they respectively became partners and accepted the deed of conveyance of the premises. We cannot agree with this contention. In Siegel v. Borland, 191 Ill. 107, the Supreme Court said:

“Neither in the contract nor in the subsequent deed to the Siegels, was there any assumption whatever of the debt secured b"y the trust deed or any agreement to pay it or any part of it. The deed was to be made and was made subject to the trust deed. The contract and deed not only failed to imply any assumption of the debt, but rather excluded the implication. Complainant can only establish the liability of appellants by proving a contract to assume and pay the debt or some part of it. To sustain the decree the facts proved must amount to an agreement to pay the $25,000 upon the debt secured by the trust deed. It is true that a contract may be implied, and that if the amount of an encumbrance is included in and forms a part of the consideration which a grantee promises to pay for premises, and he retains that part of the purchase price, the law will create a personal liability against him, on the ground that he has agreed to pay such indebtedness. In such a case the law presumes that the grantee has agreed to apply the money so retained for the purpose of paying the encumbrance. Either there must be an express assumption of the indebtedness, or the amount must be allowed in the purchase price so that the law will imply the promise. ’ ’

It is not contended, and the evidence does not show, that the mortgage indebtedness was included in or formed any part of the consideration for the purchase price of the mortgaged premises, which would form a legal basis for an implied assumption of the mortgage indebtedness. We conclude, therefore, that the court did not err in refusing to enter a deficiency decree against the defendants in error.

The decree is therefore affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    R. A. Watson Orchards, Inc., Appellant, v. The New York, Chicago & St. Louis Railroad Company, Appellee.
    Gen. No. 8,401.

      Opinion filed November 4, 1931.
    W. C. Greathouse, A. F. Bussard, C. C. Lee and Craig & Craig, for appellant.

      . Charles M. Connor and Pope & Driemeyer, for appellee ; Walter A. Eversman, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.

This case was originally brought in the circuit court of Coles county. Upon a trial in that county a verdict and judgment were rendered in favor of appellee. Upon appeal to this court that judgment was reversed and cause remanded. Orchards v. New York, C. & St. L. R. Co., 250 Ill. App. 22. After the remanding order was issued the suit was dismissed in that county and recommenced in the county of Cumberland where upon a trial a similar verdict and judgment were rendered in favor of appellee. Both the pleadings and the evidence are somewhat different from what appeared in the former case. The declaration in the present case consists of but two counts, in the first of which it is averred in substance that the defendant was possessed of a certain railroad extending in an easterly and westerly direction along and near the south side of a cold storage plant of appellant at a distance of, to wit: 50 feet and operated divers locomotive engines upon said railroad; that it became and was, then and there, the duty of defendant to use reasonable care to keep and maintain said engines in suitable order and repair, and to so operate the same so that fire or sparks would not be liable to escape or be thrown therefrom to or upon property adjacent or near to the right of way; that said defendant notwithstanding its duty in that behalf wholly failed therein and did not use such reasonable care but while a certain locomotive engine of the defendant on the 10th day of October, 1925, at the hour of, to wit: 10:45 p. m. was passing along and upon said railroad in a westerly direction past the said cold storage plant, divers sparks and brands of fire then and there escaped and were thrown from said locomotive engine by and through said negligence and carelessness of the defendant in and upon said cold storage plant and buildings of the plaintiff and said sparks and brands of fire then and there set fire to said storage plant and buildings and fire was thereby communicated thereto by said locomotive engine whereby said cold storage plant, buildings, appurtenances, apparatus, machinery, equipment, material, surplus equipment, cider and apples being of the value of, to wit: $275,000 were then and there consumed by said fire and wholly destroyed and lost to the plaintiff ; that at the time of the fire plaintiff carried insurance on said real estate and contents of the cold storage plant to the extent of $79,500; that the total amount of insurance was paid to the plaintiff after the loss and thereby said insurance companies became subrogated to plaintiff’s claim against defendant to recover for said loss by fire; that afterwards said insurance companies assigned their rights and causes of action against defendant to the plaintiff; that as to that portion of the loss amounting to $79,500 suit is brought by plaintiff as assignee and bona fide owner of said claims against said defendant of said insurance companies, and as to the remainder of the loss, suit is brought to recover for loss directly suffered by plaintiff and not covered by the insurance in the amount of $195,500.

The second count is identically the same as the first count with two exceptions. The date of the fire is fixed as of the 11th day of October, 1925, and the engine which caused the fire is alleged to have been one which passed along the tracks at 12:30 o’clock a. m.

A general description of the cold storage plant and its buildings and the location thereof with respect to the railroad tracks of appellee and of the Illinois Central R. R. Co. are set out in our former opinion and need not be repeated herein.

The first error brought to our attention is that the verdict is contrary to the manifest weight of the evidence. The evidence in this case is not substantially different from that in the former case in regard to which we held that a jury could have found a verdict for either party to the suit and a further discussion of this question is unnecessary.

It is urged that the court erred in permitting proof of the results of experiments made by appellee’s witnesses, Professor Young and Ralph Toensfeldt as to the inflammability of regranulated cork, there being no proof made that said experiments were made under substantially the same conditions that existed at the time of the fire. We held in our former opinion that testimony as to the inflammability or combustibility of cork and granulated cork and its action, subjected to fire or heat was competent testimony but we also held that the evidence of the experiments testified to by the witnesses in that case was incompetent because they were not made under the same conditions as existed at the time of the fire. On the trial of the present case, however, this objection was obviated. In introducing its evidence in chief appellant produced the witness Andrew Stiff who testified that he was superintendent of the plant of L. Mundet and Son, manufacturers of granulated cork at Hillside, New Jersey; that such cork runs from dust to a quarter of an inch and is the same kind of regranulated cork that Mundet and Son furnished for plants like appellant’s and is used for insulation of such plants. He was then asked to tell from his experience the reaction of granulated cork to flame and when objection was made to the offered testimony counsel for appellant stated that this court held that testimony as' to inflammability or combustibility of granulated cork is competent. The objection was overruled and the witness was permitted to state that “oftentimes there may be a piece of wire from the cork bales — sometimes a nail might get into it from the machinery working around there, and by this cork going through the finishing machine and underneath the emery wheel and coming in contact with the emery wheel, it will throw sparks. These sparks drop in the cork around the machine and start a fire, probably not right away you won’t see fire coming from it, it will probably be a half an hour or so. The spark will get into it and insulate it, it will keep on generating heat, finally you will see smoke coming where the sparks fell. . . . The cork will form around these sparks and forms a little ball. . . . That will keep on heating up and finally you will see some smoke coming from there. If you don’t put it out and anything around there such as paper or bags or wood, you will have a flame. I have seen this thing occur in our plant in New Jersey.” In answer to the question: “Did you ever have any experience with sparks?” the witness answered: “I have seen sparks come out of a smoke stack in our plant and light in this granulated cork. . . . The sparks come out of the stack and if the wind is blowing in the direction where we are sacking this granulated cork, it gets down around the granulated cork that is spread on the ground or bag* is opened, and falls in one of the bags and starts to burn. No, it will not- burn immediately, in a bag like that it will not start immediately. Probably it will be half an hour or an hour before you will see any fire. If it comes in contact with one of the sacks, or paper around, straw, any foreign materials, wood, then it will blaze, have a flame. . . . The spark from the stack gets into this granulated cork and it will start burning. ... I have seen fire keep on burning* after the cinder was all consumed. I have seen it burn there probably five or six feet in diameter. . . . it keeps on until it strikes some other material as I have described, then she g*oes up in flame. . . . I have seen it spread out, that keeps on heating up, getting hotter, and larger as it goes along*. If there is a big* pile of cork, would burn longer, smoulder away, smaller quantity wouldn’t burn so long. I have seen this cork flame when it would come in contact with wood, sacks, or paper. These instances I have told about, the sparks would land in the granulated cork, and the fire started from that spark lighting in the granulated cork.”

To rebut the above testimony the witness Young was placed on the stand by appellee. Professor Young had been connected with Purdue University for over 30 years and at the time he gave his testimony was head of the school and in charge of the work in the mechanical engineering department, and after testifying that he was familiar with various materials used for insulation and that cork was used because it provided good insulation and had the ability to resist the flow of heat either way through it, was asked the question: “Will cork, either regranulated or cork board, support combustion without the continuous application of external heat?” Counsel for appellant objected to this question and the objection was overruled. The witness answered. ‘ ‘ Granulated cork will not support combustion of its own ability.” The witness did not attempt to testify to any experiments of any kind but simply as an expert to the scientific fact that granulated cork will not support combustion of its own ability.

The witness Toensfeldt was a consulting engineer and had been employed by the American Telephone and Telegraph Company and by the City of St. Louis as chief electrical engineer of the Department of Public Utilities; had a great deal to do with cork in various uses and purposes; had built a refrigerating plant all insulated with cork. He testified that he knew whether cork was combustible and that regranulated cork is a fire retarder, that it will burn under conditions of a continuous application of external heat but when the external heat is removed the cork will not continue to burn. He further testified that he had made experiments with regranulated cork and was asked the question: “Have you put cinders in them?" To this question appellant objected and the court announced that this testimony was admitted on the same theory' that the testimony was admitted on behalf of the plaintiff, and overruled the objection. The witness’s answer to the question was: “Yes." The witness further testified that he had observed the effect on cork when heated cinders were put into it and that he had heated cinders to a temperature of approximately 2,800 degrees arid that the cinder when dropped into the cork ignited a small area, immediately surrounding; that the cinder continued to burn for a while, gradually got cooler and finally went out leaving a crust of cork that had been in immediate contact with it but didn’t communicate it to the rest of the cork. The above evidence was also objected to by appellant and the objection overruled. Appellant having persuaded the court to admit testimony in regard to the combustibility of cork with much greater latitude on the part of appellant is not in position now to object to similar testimony on the part of appellee in rebuttal.

Appellant also complains that the court admitted evidence in regard to the character of the netting used on the engines of appellee for arresting sparks. The evidence of these witnesses showed that appellee’s engines were equipped with a device known as the Master Mechanics Standard front end which was developed at Purdue University in conjunction with the American Railway Association and adopted in 1906 as standard and since then has been in general use in the United States, Canada and Europe. The evidence of these witnesses tends to show that in addition to the above type of netting there is another type generally known as “Draftac." They testified as to the difference between the two types and to their experiences and observation of the results obtained from actual use of both types of netting. We can see no objection to this testimony. The only way of acquiring knowledge of the efficiency of a spark arresting device is by testing the same and this was recognized in the case of Illinois Cent. R. Co. v. Bailey, 222 Ill. 480, wherein it was said: “The defendant was not required by the law to purchase or adopt every new invention to prevent the escape of fire which might be in the nature of an experiment, but it was bound to exercise the highest degree of diligence in equipping its engines with the best and most approved appliance which had been proved by actual test. ’ ’

Appellant objected to the admission in evidence of certain exhibits offered by appellee, being pages from the books containing the records of the inspections of the front ends of locomotives No. 888 and No. 909. Witnesses had already testified as to such inspections and the objection was that as they had already testified in regard thereto, that the admission of the records of such inspections would be simply incumbering the record. The court might have sustained the objection on the ground stated but its failing to do so was not error. The court admitted in evidence certain exhibits offered by appellee being the train dispatcher’s train sheets for October 10 and 11, 1925, which tended to show that no train of appellee passed through the Town of Neoga between 12 o’clock p. m. October 10 and 1:30 o’clock a. m. October 11. Also the train dispatcher’s train sheet of the Illinois Central R. Co. for the same period of time was introduced. The objection urged is that the train sheets were incompetent because they were made up from reports from operators at 13 or 14 different stations and the train dispatchers had no direct knowledge of the truth of the entries. We believe that this contention of appellant is opposed to the great weight of authority prevailing in this country. In the case of Hitchner Wall Paper Co. v. Pennsylvania R. Co., 158 Fed. 1011, in passing upon the competency of such evidence, it was held: “The objection is that the evidence is not competent, because the information which he recorded on his train sheet was supplied to him by somebody else, and it was not written there by reason of any knowledge which he had in regard to it, other than the reported information from others. The train dispatcher, in the modern conduct of a railroad, has a certain division of track over which he has a certain supervision and from various points of which he receive^ telegraphic communication as to the whereabouts, of every train running on his section. Upon the accuracy of this information depends the safe conduct of the road, and the lives of hundreds of people depend upon the care with which this information is communicated, received and utilized by the dispatcher in charge of the division. There is every inducement for each person taking part in the accumulation of this information to be sure of its accuracy, and the dispatcher recording it has every incentive to be certain that, he is receiving correct information and making an accurate record of that received. He has telegraphic communication along his whole section and receives dispatches from different persons at different points as to the exact whereabouts of each train to or from his central point. This, to some extent, provides him with a method of checking up the accuracy of the information received, and, as has been said, this information received from these train experts- along the line of a well-conducted railroad is certainly as reliable as reports made of salesmen, draymen, porters and wharfingers to bookkeepers, who make original entries, which are afterward introduced in evidence as books of original entries and admitted as competent evidence. (Louisville & Nashville R. R. Co. v. Daniel, 91 S. W. 691, 28 Ky. Law Rep. 1146, 3 L. R. A. (N. 8.) 1190; Insurance Co. v. Railroad, 138 N. C. 42, 50 S. E. 452).”

The same rule was announced in the case of Chesapeake & Ohio Ry. Co. v. Stojanowski, 191 Fed. 720: “The safe operation of the railroad depended upon the accuracy of the train sheets. Every interest demanded that the entries should be accurate and there was every incentive to employes to make them so. ’ ’

In the case of Currie v. Davis, 130 S. C. 408, it was said:

“We know of no class of records made in ‘the regular course of duties or business’ which are more convincingly verified by the circumstances under which they are made, and the character of the entries themselves.”

This same doctrine was followed in Donovan v. Boston & Maine R. R., 158 Mass. 450; French v. Virginian R. Co., 121 Va. 383; Wigmore on Evidence, section 1530; and by analogy the same principle is held in Harts v. Chicago & Alton R. Co., 184 Ill. App. 123 and Kenna v. Calumet, H. & S. R. Co., 206 Ill. App. 17.

Some other objections are made to the admission of evidence which, without discussing the same, in our opinion are without merit.

The criticisms to the instructions given in behalf of appellee cannot be sustained except as to the fifth instruction which is as follows:

“And if you believe from a preponderance of the evidence in this case that defendant’s locomotives in question were equipped with the best and most approved spark arresting devices and that at the time in question they were in good order and repair and that the said locomotives were carefully managed by competent servants, then the Court instructs you that the plaintiffs would not be entitled to recover any damages in this case and you should find the defendant, railroad company, not guilty, even though you may believe that a spark from a locomotive engine of defendant caused the fire. ’ ’

The second count in the declaration charged that the fire was set by sparks emitting from an engine which passed through Neoga at 12:30 a. m. October 11. There was no evidence as to the condition of the spark arresters on any engine that passed through Neoga at that time but counsel for appellee attempt to justify this instruction on the ground that the evidence conclusively shows by the train dispatcher’s sheets that no such engine passed through Neoga at that time, therefore no evidence could be introduced in regard to any spark arrester on such an engine. While the train dispatcher ’s sheets were competent evidence it cannot be held that they were absolutely conclusive. The witness Stewart who testified on behalf of appellant stated that it was close to 12:30 a. m. when he saw an engine passing the warehouse in question emitting sparks. The witness Wildman testified that he was a conductor on the Illinois Central It. It. and on the night of October 10 he arrived at Neoga about 11:40 p. m. with his train which train was stopped for the interlocker at the crossing of the two roads because a train of appellee was using the crossing and that he saw the train on the Nickel Plate track and that his best recollection was that it was about 12:20 to 12:30 a. m. October 11. Appellant had a right to have this evidence considered by the jury notwithstanding that the train dispatcher’s sheets and the evidence of the tower man tended to show that no train passed over appellee’s tracks at 12:30 a. m. This instruction directs a verdict and tells the jury they should find appellee not guilty if they believe from the evidence that defendant’s locomotives in question were equipped with the best or most approved spark arresting* devices and should have been limited to those engines which the evidence showed passed the warehouse on appellee’s tracks prior to 12:30 a. m. and should not have directed a verdict. As the question whether an engine was operated on said tracks at about 12:30 a. m. on that night was a material and vital question of fact in the case and as the instruction ignored such an engine it was erroneous and the giving of it reversible error.

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

We granted a petition for rehearing in this case and have again fully considered the points raised therein. The main contention of appellee is that the evidence so conclusively shows that no engines passed over its track at the time in question, that the giving of the fifth instruction was harmless error. To this we cannot agree. To so hold would be in effect eliminating the evidence introduced by appellant in reg'ard thereto. We held, on the former appeal of this case, that the evidence was such that would sustain a verdict for either party, and such being the case, the giving' of the fifth instruction on behalf of appellee is reversible error and we must adhere to our former opinion, which is refiled herein.

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

Reversed and remanded.


text:
    Edward Kibbat, Appellee, v. May Clokey, Appellant.
    Gen. No. 8,503.
    Opinion filed November 4, 1931.
    Elizabeth Mayo and David O. Williams, for appellant.

      L. T. Graham, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action brought to recover the cost of erecting appellant’s portion of a division fence dividing the lands of the latter from those of appellee, and wherein appellee recovered a judgment for $67.50. The suit is based upon paragraph 11, ch. 54, Cahill’s Rev. Stat. as amended in 1917 entitled “An Act to revise the law in relation to fences.” Sec. 11 is as follows :

“If any person who is liable to contribute to the erection or reparation of a division fence shall neglect or refuse to make or repair his proportion of such fence, the party injured, after giving sixty days’ notice, in writing-, that a fence should be erected, or ten days’ notice, in writing, that the reparation of a fence is necessary, may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him, with costs of suit, before a justice of the peace or any other court of competent jurisdiction; and the party so neglecting or refusing, after notice in writing, shall be liable to the party injured for all damages which shall thereby accrue.”

Insofar as the rights of the parties are concerned in this suit they have not been substantially changed by statute since the original act was passed in 1874. A number of errors have been assigned by appellant as cause for the reversal of the judgment which was rendered in the court below in favor of the plaintiff or appellee. Section 8 of the Act, Cahill’s St. ch. 54, 8, provides that when any of the above mentioned matters (fence) shall be submitted to fence viewers, each party shall choose one; and if either neglect, after eight days’ notice in writing, to make such choice, the other party may select both, and for all purposes of notice under the Act it shall be sufficient to notify the tenant or person in possession of said adjoining premises, when the owner thereof is not a resident of the town in which such fences are situated. The only evidence pertaining to the giving of any notice to appellant to select fence viewers was the oral testimony of appellee: “I gave notice to select fence viewers.” Section 8 specifically provides that eight days’ notice in writing must be served upon the adjoining landowner before the fence viewers can be selected, and such notice is jurisdictional. In the case of Hale v. Andrews, 75 Ill. 252, it was held: “Appellee’s claim is based on the award of the fence viewers, and, inasmuch as their jurisdiction is exceptional and limited, it can only be upheld to the extent it affirmatively appears they had jurisdiction of the person and the subject matter.

“The notice served by appellee on appellant, pursuant to which the viewers were selected, is jurisdictional, and they could not, without the express consent of the parties interested, act upon any other or different question than that expressed in the notice, and without notice they could not be selected to act at all.”

There was no evidence that any written notice was ever served upon appellant, the owner, or upon her tenant or any person in possession of the premises for the appointment of fence viewers. The testimony of appellee above quoted is but a pure conclusion and evidence of nothing. The fence viewers under these circumstances had no jurisdiction to act. We might mention in this connection that the only evidence of the finding of the fence viewers is a purported uncertified copy thereof written by a former town clerk which was admitted in evidence over the objection of appellant. There was no evidence that the original finding of the fence viewers signed by them was destroyed or lost nor that the exhibit was a true copy of said report. The admission of this copy was error.

There is no evidence in the record as to the exact date that appellee constructed the fence in question. His own testimony is to the effect that he constructed the fence in the winter of 1924 or early in January, 1925. The bill for the barbed wire fencing, staples, posts and labor rendered to appellant is dated January 8, 1925, thus conclusively showing that appellee had constructed the fence prior to that time. This suit was not brought until May 12, 1930, when it was instituted before a justice of the peace on that date. No written pleadings are required before a justice of the peace but appellant orally pleaded the statute of limitations. If appellee had had a cause of action it was barred by the statute of limitations under sec. 15, ch. 83, Cahill’s Rev. Stat. f 16.

The judgment of the county court is reversed with findings of facts.

Reversed 'with findings of facts.

The court makes the following findings of facts which are to be incorporated in the judgment of the court in this case:

(1) The court finds that the fence viewers had no jurisdiction of the subject matter of this suit nor of the person of appellant.

(2) The court further finds that the cause of action alleged is barred by the statute of limitations.