text:
    Fred Johnson, Appellee, v. Mildred Duke, Appellant.
    Gen. No. 7,700.
    1. Motor vehicles — sufficiency of evidence of negligent operation. A verdict for plaintiff in an automobile collision case was justified under evidence that he had entered a road crossing before defendant, approaching on the intersecting road at a. high rate of speed with the view obstructed by a hedge, had reached the crossing, although the evidence was conflicting.
    2. Motor vehicles — assumption by driver having right of way. An automobile driver having the right of way on a road crossing has a right to assume that an automobilist approaching on the intersecting road will respect his right, even though such right does not relieve him from using due care.
    3. Motor vehicles — duty not to interfere with driver having right of way. Where an automobile driver is approaching a road crossing with due care and has the right of way, the driver of an approaching car on the intersecting road owes a duty to approach with sufficient care to permit the other to exercise his right of way.
    4. Harmless and prejudicial errors — erroneous instruction not justifying reversal. Error in granting an instruction for plaintiff in an automobile collision case, to the effect that speed in excess of a statutory limit is prima, facie evidence of negligence, will not cause a reversal where - it does not appear that a different verdict would be rendered in the absence of the erroneous instruction.

      Appeal by defendant from the Circuit Court of Warren county; the Hon. Walter C. Frank, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed December 28, 1927.
    Rehearing denied February 6, 1928.
    L. H. Hanna, for appellant.
    Murphy & Kritzer, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Fred Johnson recovered a judgment for $1,750 against appellant, Mildred Duke, for damages growing out of a collision between a Ford truck driven by him and a Cadillac touring car driven by appellant. The first count of the declaration charged general negligence. The second count charged appellant with operating her car at a rate of speed greater than was reasonable and proper having regard for the traffic and use of the way. The third count charged appellant with operating her car at a rate of speed greater than was reasonable, at a place on the highway where her view was obstructed.

The collision occurred at the intersection of two highways about 7: 30 o’clock on the morning of Jifiy 28, 1923. Miss Duke was seventeen years old and with four young lady companions was driving east from Monmouth to Galesburg on a dirt road located about one mile north of the village of Cameron in Warren county. Johnson was driving north on the highway which runs north from Cameron and intersects the road on which appellant was driving. The highways were four rods wide and had smooth, well beaten paths on either side of the center. A hedge fence extended from the southwest corner of the intersection both west and south for several rods and obstructed the view of persons approaching the intersection either from the west or from the south. Appellee’s truck weighed about a ton and was equipped with a tank filled with gasoline of about the same weight. Appellant’s car weighed about 4,300 pounds. The collision occurred a little north and east of the center of the intersection of the two highways. Appellee was thrown from his truck and after the collision was found in an injured and dazed condition. The truck was turned over, badly demolished and was lying about 12 feet northeast of the center of the intersection, headed northwest.

The condition of the truck after the accident showed it had been struck with great force from the left side and near its front end. The Cadillac car was upside down in the ditch close to the hedge on the north side of the east and west road at a point about 73 feet east of the center of the intersection. A number of witnesses testified to having seen marks, as if made by sliding wheels of a car, on the highway west of the point where the collision occurred. These marks extended west 71 feet parallel with and near the center of the east and west road. The right rear door of appellant’s car had a slit or hole punched in it about two inches long. The right rear side of the tonneau was caved in. The right rear fender was flattened up against the body and three or four spokes were broken in the right rear wheel.

The only direct evidence as to the speed of appellant’s car was her own testimony which was to the effect that before she reached the intersection, she was driving about 35 miles an hour, and when she entered the intersection she was driving 20 miles an hour. She admitted that she did not look at the speedometer on her car and that her testimony as to rates of speed was based only on her judgment. She testified that she began sounding the horn and putting on the brakes about 100 or 150 feet from the corner. She also testified that appellee did not sound his horn as he approached the intersection.

Appellee’s truck was geared to a maximum speed of 18 miles per hour when empty. He passed a team and wagon about 500 feet south of the intersection and the evidence tends to show he was then traveling between 12 and 15 miles an hour and that he sounded his horn before entering the intersection. He testified that he also sounded his horn four or five rods south of the intersection and that he slowed down to about eight miles an hour as he attempted to cross the intersection. He further testified that when the front of Ms truck reached the intersection, he looked east and west and could see down the road west a distance of 50 to 75 yards; that he did not see anything and proceeded into the intersection.

Appellant’s testimony as to when and where she first saw Johnson is somewhat confusing. On direct examination she testified that when she reached the corner of the intersection he was about 50 feet back. On cross-examination she stated that when she reached the west line of the intersection, it seemed appellee was coming off the road right on to her; that she didn’t see him until he was almost in the center of the road, because she could not see anything until she got up there; that she did not see him until she was near the middle of the intersection and that the minute she passed the hedge she saw him and it seemed to her he was in the center of the road about 50 feet south of the south line of the intersection.

We think the evidence fairly tends to show appellant was driving at a reckless and dangerous rate of speed; that when she was a short distance west of the intersection she first saw appellee within the intersection and then applied her brakes, sliding the wheels of her car a considerable distance before the impact; that she was travelling so fast she could not stop and her car struck the truck on the left side in front of the driver’s seat, sprung the frame to the right, demolished the cab, crushed the left front wheel and fender, hurled the wreckage, and ran about 68 feet farther where it overturned in the ditch. One of the occupants of the wagon which appellee passed heard the crash and testified that he looked immediately and saw the truck settling on the ground, and that the other car looked like it was going through the air. Another witness who was about half a mile away testified that he heard the collision and that it looked like one of the cars was up in the air coming down.

Appellant claims the truck ran into her car, striking it in the rear door. She was corroborated by one of the girls who ivas riding with her. Some of the evidence is conflicting but the undisputed physical facts give much support to the claims of appellee. Under the facts and circumstances shown to have surrounded the collision the jury was warranted in finding that appellant was guilty of the negligence charged and that such negligence was the proximate cause of the collision and injury. We think the weight of the evidence shows that appellee had entered the intersection before appellant reached the west side of it, and that she was driving at a high and dangerous rate of speed at a place where her view was obstructed. Under the circumstances appellee had the right of way. While this right would not relieve him from the duty of exercising due care, he was entitled to assume that persons approaching on his left would observe the law and respect his right. (Partridge v. Eberstein, 225 Ill. App. 209.)

The record does not show that appellee was guilty of contributory negligence .as claimed by appellant, but on the contrary it shows that he was in the exercise of due care and caution for his own safety and that of his truck at and prior to the time of the accident. Appellant owed him the duty to approach with sufficient care to permit him to exercise his right of way. (Partridge v. Eberstein, supra; Zapf v. Kutten, 229 Ill. App. 406; McCarthy v. Fadin, 236 Ill. 300; Fisher v. Johnson, 238 Ill. 25.)

Several assignments of error are based on instructions given on behalf of appellee and on the modification of a number of appellant’s instructions, but only one is urged. It is directed against appellee’s seventh instruction. This instruction told the jury that under the statute, if a person drives an automobile, designed and used for carrying not more than seven passengers upon a public highway outside the limits of an incorporated city, town or village at a rate of speed to exceed 35 miles an hour, such rate of speed shall be prima facie evidence that the person operating such motor vehicle was travelling at a rate of speed greater than was reasonable and proper having regard to the traffic and use of the way, or so as to endanger the life or limb or injure the property of any person. Because of the holding in Johnson v. Pendergast, 308 Ill. 255, this instruction should not have been given. But to justify a reversal on account of error it must appear from the record that upon another trial, if the same error does not intervene, a different result may be reasonably expected. Where it can be said from the record that the error assigned could not reasonably affect the result of the trial, the judgment of the trial court should be affirmed. Stansfield v. Wood, 231 Ill. App. 586; Ehrenheim v. Yellow Cab Co., 239 Ill. App. 403; People v. Weir, 295 Ill. 268; People v. Heard, 305 Ill. 319.)

We hold the evidence so clearly establishes the negligence and liability of appellant, as charged in the declaration, that the result could not be different upon another trial if the instruction complained of were omitted. The judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Jett

license: Public Domain

text:
    Margaret C. Thomas, Appellee, v. Illinois Power & Light Corporation, Appellant.
    Gen. No. 7,791.
    1. Evidence — opinion of physician as to personal injuries. The opinion of a physician who has not treated an injured person but has made an examination shortly before the trial for the purpose of testifying as to his opinion in regard to the injuries, when based partially upon subjective and partially upon objective symptoms, is not admissible.
    2. Harmless and prejudicial errors — admission in evidence of opinion of physician. The erroneous admission in evidence of the opinion of a physician that the personal injury of the plaintiff was perma.nent is' reversible error, where six physicians testified and he was the only one who gave an opinion that the injury was permanent, and the verdict would be excessive if his opinion was excluded.
    3. Damaqes — when $12,000 for personal injury is excessive. A verdict of $12,000 for injuries to a saleslady who was struck in the back by a movable seat in a collision of street cara which apparently injured her nerves, but caused her to lose comparatively little time from her work where she earned around $1,200 a year, is excessive if the expert evidence is confined to the evidence of five physicians who do not testify that the injury is permanent, and if the evidence is excluded of a sixth physician that the injury is permanent.
    4. Trial — improper argument of attorney. The attorney for the plaintiff in a personal injury ease should not, in his argument to the jury, attempt to have the jury put itself in the position of the plaintiff.
    Appeal by defendant from the Circuit Court of Peoria county; the Hon. Joseph E. Daily, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed January 28, 1928.
    Hunter, Page & Kavanagh, for appellant.
    Todd, Morgan, Pendarvis & Arber, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This action was instituted by Margaret C. Thomas; appellee, against the Illinois Power and Light Corporation, appellant, to recover damages for injuries alleged to have been sustained by the appellee as a result of a collision between two of appellant’s street cars. The cause was tried before the court and jury and a verdict was returned finding appellant guilty and assessing the damages of appellee in the sum of $12,000. A motion for new trial was made by the appellant, which was overruled and judgment rendered on the verdict, and this appeal followed. The declaration consists of one count and charges that appellee was a passenger on a street car of appellant and that appellant’s servants improperly, negligently and carelessly operated its street cars, and that as a result of such careless, negligent and improper operation, a collision between two of appellant’s street cars occurred, and that as a result of that collision appellee sustained injuries.

The record discloses that on the evening of September 26, 1924, Margaret C. Thomas, appellee, boarded one of appellant’s street cars to ride to her home. Upon boarding the car appellee paid the required fare. She occupied the front seat on the right-hand side of the car, which seat was perpendicular to the side of the car and the back of the seat was movable. The street car in question proceeded in a northerly direction on its regular route until it arrived at a side track or switch located on Indiana avenue between Pennsylvania and Illinois avenues in the city of Peoria. The street car in which appellee was riding waited on the side track for a southbound car to pass it. When the southbound car had passed, the northbound car left the switch open and proceeded in a northerly direction. It proceeded a short distance and collided with a southbound street car. Both cars were lighted in the usual manner.

Appellee testified that as a result of the collision she was struck in the small of the back by the movable back of the seat on which she was sitting and that she was thrown out of the seat and on to the floor of the car. The record further discloses that after the collision appellee walked about a block and a half to her home. At the time of the collision appellee was employed by Clarke and Company, operators of a Peoria Department store, as clerk, and she returned to her work on the day after the collision and continued at work for a period of 12 days. The record further discloses that on October 16, 1924, appellee consulted Dr. Sumner Miller, who advised her to go to St. Francis Hospital, where she remained until December 9, 1924. She then worked for Clarke and Company continuously from January 5, 1925, until March 7, 1925, at which time she resigned her position. Immediately thereafter she accepted a similar position with a woman’s clothing store in Peoria, following the same line of employment and working regularly until June 6, 1925. From June 6, 1925, until November 1, 1925, appellee testified that she was not employed. On November 1, 1925, she entered the employ of Block & Kuhl Company of Peoria, a mercantile house, in the capacity of saleslady. Appellee has been so employed by Block & Kuhl Company, continuously since November 1, 1925, except for a period from December 12, 1926 to February 1,1927, during which time said appellee was visiting at the home of her brother in Texas. She was employed by said company at the time of the trial.

The record discloses that the earning capacity of appellee as a saleslady prior to the accident was as follows: During the year 1922, she earned $1,225. During the year 1923, she earned $820.85, although she was absent from her employment from the early part of May to the latter part of September, 1923. For the period from January 1, 1924, to about October 12,1924, she earned $1,015.62; that upon her return to work following the injury complained of she received $25 per week from the date of her return, namely January 5,1925, to January 29,1925, when her drawing account was reduced to $18 per week, and was con-tinned nntil March 7, 1925. Her earnings from March 7, 1925, to June 6, 1925, were $345.80, and from January 11, 1926, to February 12, 1927, she earned $394.61. During the last period she was absent from her employment from December 12, 1926, to February 1, 1927.

The medical evidence as to the condition of appellee, and the cause of such condition, is conflicting. Three physicians were called on behalf of appellee, two of whom treated her and one who examined her just prior to the trial. One of the treating physicans described the condition of appellee as ordinary nerve trunk and extreme nervousness, and the other as traumatic neurosis. Dr. Levitin, a medical witness who specializes in nervous disorders and who had never treated appellee but examined her a few days before the trial for the purpose of testifying, testified that she had a partial paralysis of the left side resulting from a meningeal hemorrhage around the brain. Neither Dr. Farnum nor Dr. Miller, physicians who treated appellee and testified in her behalf, said anything about her condition being permanent. Dr. Levitin testified over appellant’s objection that there was a possibility of appellee’s condition being permanent. The three physicians called on behalf of appellant, all of whom examined her, testified that under the circumstances a meningeal hemorrhage could not result from an injury of the character suffered by appellee and that they did not find from their examination any condition from which a permanent ailment could result.

A number of reasons are assigned for a reversal of the judgment.

Appellant did not controvert the charge of negligence alleged in the declaration of appellee. That there is a liability there is no question because the evidence sustains the averments of the declaration in so far as the question of negligence is involved.

It is first insisted that Dr. Levitin was permitted to base his opinion of appellee’s medical condition upon partially subjective and partially objective symptoms and that the opinion of a physician, who has not treated but merely examined the injured shortly before trial, which is based partially upon subjective and partially upon objective symptoms is not admissible in evidence. ¡¡'From an examination of the record it appears that the testimony of Dr. Levitin constitutes an important and out-standing feature in the case of appellee. There is little evidence of the permanency of the injury aside from what was testified by Dr. Levitin which would justify a verdict for so large an amount as was returned by the jury. In view of the contention of appellant and the prominence of the evidence of Dr. Levitin, it becomes important to examine his testimony. Dr. Levitin apparently made a very thorough examination of appellee from the standpoint of a neurologist by subjecting her to a gre,at variety of tests. He testified, among other things, that he tested all cranial and spinal nerves; tested for responses and motion upon touch of heat; tested position, gait, equilibrium and special senses. The reflexes were tested by a rubber hammer; temperature was tested by very hot and very cold water; pain tested by a sharp-pointed instrument touched with cotton; tested her ability to smell and taste; tested to determine her manner of walking, whistling, twisting the mouth, raising the eyebrows; grasping and extension of fingers and strength. In making his examination of appellee he used certain instruments in addition to the use of his fingers and eyes. As a result of the tests made of appellee Dr. Levitin stated, among other things, that the muscles on the left side of the face did not follow instructions as did the muscles of the right side of the face, such as whistling, twisting the mouth or raising the eyebrows; her tongue was not handled as freely; left upper extremity showed an inability to act as strongly as the right upper „ extremity; grasping, extension of fingers and strength showed one-third of right hand; wrist, elbows, turning forearm out and in, bringing the elbow to the side, pulling it away from the side; raising it to the shoulder and putting hand to the head showed all of these movements were decreased less than the right side. Left lower extremity showed all movements performed with difficulty and with less strength than the right side. Abnormal reflexes present in that the big toe goes up instead of down on the left side. Left side did not respond to heat; cold was not responded to; there was no pulling away due to extreme pain as the electrode was placed on different parts of the body; could not place the electrode on the right side until there would lie an immediate cry and shrinking; different parts of the left side had no response to touch. There was difficulty in controlling the left lower extremity; she sways to the left and backward; could not control her left hand in certain tests with her eyes closed.

It will be observed that many of the tests mentioned by .the witness Levitin must necessarily have relied either upon the word of appellee, the nod of her head or her manifestations of pain or lack of pain. If such was not the fact, the witness could not have determined the ability of appellee to smell, taste, raise the eyebrows, grasp or extend the fingers, move the big toe, exhibit strength or lack of strength of the fingers or indicate to the witness her ability to distinguish between hot or cold water. If the result of the various tests was not made known to the witness by expression or manifestation of the appellee, then they must have been made known by the action of various muscles the control of which was within the power of appellee. The information given to the wit.ness by the appellee either by word of mouth, nod of head or physical manifestation was as much self-•serving as a history of the case would be given when given by her.

After, the doctor had made the tests and stated the results as found by him this question was put to him: “Doctor, from this examination, have you an opinion what her medical- condition is at this time and what her nervous condition is?” Appellant objected to the question. The doctor answered that he had an opinion and over the objection of appellant he made "the following answer: “At some time in the past a hemorrhage or rupture of the blood vessels in the lining of the brain covering that area that controls motion and sensation of the opposite side, a meningeal hemorrhage with that having nerve root involvement producing severe pain in that part of the back. ’ ’ The doctor was then permitted to state that the accident could have been the cause of her condition. He was then asked as to the permanency of the injury. The doctor stated that in his opinion the injury was permanent.

Notwithstanding the fact objections were made by appellant, the court permitted Dr. Levitin, the witness, to answer the above-named questions, together with others of similar character. Thereafter certain hypothetical questions were asked of the doctor by appellee in each of which questions the witness ivas asked to base his opinion on certain facts and suppositions together with what he had learned from his examination.

The record discloses that one or more of the physicians testified to the effect that many of the movements and manifestations obtained by Dr. Levitin in his examination were subjective and. not objective. Without the testimony of such physicians it is apparent from ordinary experience that many of the responses were in fact subjective.. That being true then the question arises, What is the rule? The rule is, as we understand it, that the opinion of a physician who has not treated the injured party but has made an examination shortly before the trial for the purpose of testifying as a witness, when based partially upon subjective and partially upon objective symptoms, is not admissible. This rule is clearly announced in Greinke v. Chicago City Ry. Co., 234 Ill. 564, and on page 571 the court said:

‘ ‘ The rule, however, is well settled that a physician, when called as a witness, who has not treated the injured party but has examined him solely as a basis upon which to found an opinion to be given in a trial to recover damages for the injury sustained by the injured party, cannot testify to the statements made by the injured party to him, or in his presence, during such examination, or base an opinion upon the statements of the injured party.”

In Greinke v. Chicago City Ry. Co., supra, a doctor was permitted to testify over objection that there was a twitching or jerking of hands; a slight drooping of her left leg or left foot as she allowed it to hang over a chair; that the toes of the left foot turned in more than those of her right foot; that the step with the left foot was not as strong as that with the right; that he noticed a difference in the strength of her hands; that one thumb was weaker than the other. Referring to those particular tests, the court at pages 571-572 said:

“An expert witness called under such circumstances must base his opinion upon objective, and not subjective, conditions. If, therefore, it would have been improper for Dr. Cox to have inquired of the appellee as to the relative strength of her hands, or as to whether she could use her left leg as well as her right leg, or whether she could walk without dragging her left leg, and it would have been incompetent for him to have given to the jury the result of such interrogation by detailing to them her replies to said questions, (as clearly it would have been,) we think it equally clear that he could not reach the same result by having her answer his questions by a nod of the head or by the pressure of her hands, or by asking her to sit upon a chair, or to walk, and then giving to the jury the results of his observations. * * * To permit the injured party, while undergoing an examination by an expert in his employ, by jerks and twitches, by a pressure of his hand, by turning his toes in or by dragging one of his legs when walking, to thus make evidence for himself, and then to permit his expert to go before the jury and bolster up and strengthen by his opinion, the self-serving testimony thus manufactured by the injured party, would open up the door wide for the grossest fraud, which might work upon his adversary the most palpable injury.”

In Shaughnessy v. Holt, 236 Ill. 485, on page 488, the court in its opinion considered the admissibility of the testimony of three physicians who had testified in that cause. The court there held that the opinion obtained by the physicians was inadmissible because based upon the following test: Putting hot water in one test tube and cold water in another and touching the test tubes to different parts of the injured’s body. The court in this case followed the rule laid down in Greinke v. Chicago City Ry. Co., supra.

In Wells Bros. Const. Co. v. Industrial Commission, 306 Ill. 191, the court discussed the rule involved in the instant case. On page 195, the court used the following language:

“We think the argument of counsel for plaintiff in error finds support in the record that considerable of the testimony of the physicians testifying for the applicant was based upon a subjective examination, and it may be said that some of the testimony of. the physicians for plaintiff in error was based also on the subjective symptoms as stated to them by the applicant. This court has more than once held that the testimony of physicians is incompetent which is made after examination of the applicant with a view to testifying and is based wholly upon the physicians’ observation of outward manifestations within the applicant’s control, such as pressure or twitching of the hands or turning in of the toes. (Greinke v. Chicago City Railway Co., 234 Ill. 564; Casey v. Chicago City Railway Co., 237 id. 140.) This court has also held that when the physician’s statement is based partly upon his own observation and partly upon the statement of the case made by the injured person such evidence is not admissible. (Chicago Union Traction Co. v. Giese, 229 Ill. 260.) Therefore it is clear that the testimony of Dr. Comes, so far as he testified it was based ‘only on his [Lydon’s] actions and statements,’ was inadmissible. It seems also clear from the reading of Dr. Bydin’s testimony that he based his conclusion as to the applicant’s condition partly upon the statements of the subjective symptoms made to him by the applicant. What was said by this court in Schmidt v. Chicago City Railway Co., 239 Ill. 494, International Coal Co. v. Industrial Com. 293 id. 524, McKenna v. Chicago City Railway Co. 296 id. 314, and Central Illinois Service Co. v. Industrial Com. 302 id. 27, does not in any way modify the conclusions reached by this court in the decisions already cited, as to the physician not being authorized to base his conclusions as to the person’s injury in part upon objective symptoms and in part upon subjective symptoms derived from the patient’s statements to the physician.”

The rule announced in Wells Bros. Const. Co. v. Industrial Commission, supra, is followed in Lehigh Stone Co. v. Industrial Commission, 315 Ill. 431-436, and Madison Coal Corp. v. Industrial Commission, 320 Ill. 65.

In view of the rule as above announced, the court erred in permitting Dr. Levitin to state his opinions based upon the result of his examinations which involved both subjective and objective symptoms and matters. The testimony of Dr. Levitin undoubtedly had much influence with the jury in arriving at a verdict and in determining the amount of damages as found by them. It was the opinion of Dr. Levitin that the injury to appellee was permanent. Dr. Levitin is the only one of the six physicians who testified'that the injuries were permanent.

The verdict of the jury is excessive based on the testimony of the witnesses who testified in the case other than Dr. Levitin.

A number of other reasons are argued for a reversal of the judgment. We have examined them and do not think they constitute reversible error. We are of the opinion, however, counsel erred in his argument in attempting to have the jury put itself in the position of the appellee.

We conclude, therefore, that reversible error was committed in allowing Dr. Levitin to state his opinions based upon the result of his examinations that involved both subjective and objective symptoms.

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

Reversed and remanded.


author: Mr. Justice Boggs

text:
    Leo W. Ruedger, Administrator of the Estate of Henry W. Ruedger, Deceased, Appellant, v. The Toledo, Peoria & Western Railway Company and Samuel M. Russell, Receiver of Toledo, Peoria & Western Railway Company, Appellees.
    Gen. No. 7,849.
    1. Dismissal and nonsuit — propriety in form of motion to dismiss. A motion made pursuant to the Practice Act, section 32, Cahill’s St. ch. 110, ¶ 32, to dismiss an action for failure to file a declaration in time is not improper as not being presented by a plea, of puis darrein continuance as being based on a matter arising after the commencement of the suit,

      2. Dismissal and nonsuit — necessity of formality in motion to dismiss. A motion to dismiss an action for failure to file a declaration in time, which motion is properly entitled and is based on the Practice Act, section 32, Cahill’s St. eh. 110, K 32, is not improper as not having the formality of a plea in abatement.
    3. Dismissal and nonsuit- — denial 'of motion to dismiss as ground against renewal of motion. The mere fact that a motion to dismiss an action for failure to file a- declaration in time is denied is no reason why the motion should not again be presented.
    4. Dismissal and nonsuit — delay in mailing motion to dismiss as tvaiver of right. A defendant does not waive a right to have the action dismissed because of a failure to file the declaration in time by failure to object at the first oqiportunity and waiting until plaintiff’s rights are prejudiced by the statute of limitations.
    5. Dismissal and nonsuit — effect of filing declaration against only one of two defendants. Where an action is commenced by the filing of a praecipe for summons against two defendants, the filing of a declaration against only one defendant amounts to a dismissal of the other defendant.
    Appeal by plaintiff from the Circuit Court of Iroquois county; the Hon. Prank L. Hooper, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 28, 1928.
    A. F. Goodyear and Robert F. Goodyear, for appellant.
    Free F. Morris and Roscoe C. South, for appellee receiver; John M. Elliott, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellant as administrator of the estate of Henry W. Ruedger, deceased, on June 10, 1926, filed a praecipe for summons in the circuit court of Iroquois county against appellees, the Toledo, Peoria & Western Railway Company and Samuel M. Russell, receiver. Summons, returnable to the November term, 1926, was served on appellees. On October 30, 1926, a declaration was filed, running against the Toledo, Peoria & Western Railway Company alone. On November 12, 1926, said company filed a plea of the general issue.

On May 16,1927, being one of the regular days of the March term, appellee receiver, on limited appearance, moved to dismiss said cause as to him, for failure to file a declaration ten days before the second term of the court. On May 28, 1927, appellant asked leave to amend his declaration by adding thereto “the name of the above named defendant, Samuel M. Bussell, as the Beceiver of the Toledo, Peoria & Western Bail-way Company, a corporation,” etc. The court took under advisement both of said motions.

The March term of said court adjourned June 20, 1927, and the June term opened on June 21. On July 15 at said June term, the court denied the motion of appellee Bussell. Thereafter, on July 18, said receiver again moved to dismiss said cause for failure to file a declaration against him ten days prior to the second term of court, as provided by section 32 of the Practice Act, Cahill’s St. ch. 110, Ü 32. On July 20, appellant entered a motion to strike from the files said-motion of the receiver. On July 30, 1927, the court denied appellant’s motion to strike and on the same day allowed the motion of appellee Bussell, filed July 18, to dismiss said cause as to him, for failure to file said declaration, within the time provided by statute. The court also denied the motion of appellant for leave to amend his declaration by adding thereto the name of Samuel M. Bussell, receiver, etc., as a party defendant. To reverse said judgment, this appeal is prosecuted.

It is first contended by counsel for appellant that appellee Bussell’s motion to dismiss was based on a matter arising after the suit had been commenced, “and that under the well-established rules of pleading, should have been presented by a plea of puis darrein continuance.”

This point is not well taken, as the motion of appellee Bussell was made pursuant to section 32 of the Practice Act, Cahill’s St. ch, 110, ¶ 32. The rule contended for by counsel for appellant has no application in matters of this character.

It is next contended that the motion of appellee receiver “did not give color” etc., in other words, that this motion did not have the formality of a plea in abatement. The motion was properly entitled, and was based on the above-mentioned statute. It was sufficient to raise the question as to whether, under said statute, appellee as such receiver was entitled to have said cause dismissed as against him.

It is next contended that this motion was of a dilatory nature and the court having denied the first motion said receiver had no right to file a second motion. It does not clearly appear why the first motion was not allowed, but the mere fact that the court did not allow the same was no reason why appellee should not again present said motion.

It is also contended that appellee as such receiver waived his right to have said cause dismissed “by fading to object at the first opportunity, and until the rights of the plaintiff were prejudiced by the statute of limitations”; in other words, that it was the duty of appellee receiver, if he expected to enter a motion of this character, to have entered it at the earliest possible moment. No authority based on said statute was cited by counsel in support of this contention. In fact, the authorities are the other way. Garnsey v. Schwartz, 154 Ill. App. 154-156; Rubin v. Raynor, 181 Ill. App. 403-404; Beamesderfer v. Cermak, 203 Ill. App. 294-295; Staley v. Illinois Threshermen’s Mut. Ins. Co., 246 Ill. App. 279-281.

Under the holdings of our Supreme and Appellate Courts, the March term of said court would have been the second term, the summons having been made returnable to the November term. English v. Wilkins, 163 Ill. 542-543; Fowler v. Chicago Daily News Co., 207 Ill. App. 162-163.

It is further contended by counsel for appellant that appellee receiver was inadvertently omitted from the declaration and that counsel’s attention was not directed thereto until the motion of appellee receiver in May, 1927, brought the same to his attention. It seems to be counsel’s contention that said receiver had no right to wait until more than one year after the cause of action had accrued and until the statute of limitations had run against the same, before making his motion to dismiss. No authority was cited in support of this contention, and we hold it is not well taken. If a declaration had not been filed as to either of the defendants, it could not be claimed that, even though inadvertently such failure had occurred, it would not be ground for a motion to dismiss for failure to file a declaration as provided by statute. If the rule would apply as to both defendants, we see no reason why it should not apply to one of them.

It should also be observed that appellee railroad company had filed a plea, thereby advising counsel that said receiver had not filed any plea.

The plain reading of the statute supports the position of counsel for the receiver, and the court did not err in dismissing said cause as to him.

Counsel for appellee receiver also insists that appellant, having seen fit to file a declaration against the railroad company alone, it amounted to a dismissal as against appellee receiver. This point is well taken. It has been frequently held that where a plaintiff, in amending his declaration, omits therefrom certain of the defendants sued, it amounts in law to a dismissal of the cause as against such defendants. Black v. Womer, 100 Ill. 328-330; MacLachlan v. Pease, 171 Ill. 527-531; Malleable Iron Range Co. v. Pusey, 244 Ill. 184-200.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Justice Eldredge

text:
    Charles E. Crumbaugh, Trustee, Appellant, v. First National Bank of LeRoy, Appellee.
    Gen. No. 8,093.
    1. Chattel mortgages — contingent liability as consideration. There is no contingent liability on the part of heirs to pay a contingent deficiency on a judgment obtained by the holder of a note against the maker, for which deficiency the decedent is liable as surety on the note, that is a sufficient consideration to support a chattel mortgage given by the maker of the note for the benefit of the heirs.
    2. Descent and distribution — assets of estate taken by heir. An heir can take only such assets of an estate as are left after the debts are paid.
    3. Estates of decedents — liability of heirs for debts. No personal liability is imposed upon the heirs to an estate to pay the debts thereof.
    Appeal by plaintiff from the County Court of McLean county; the Hon. William C. Radliff, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Sigmund Livingston, Earl Huggins and Livingston & Murphy, for appellant.
    David D. McKay and Adlai H. Bust, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Benjamin C. Bees died intestate on the 15th day of, May, 1926, leaving surviving him three daughters, Gertrude Crumbaugh, Katherine Bees, now Katherine Wahls, and Mrs. Nathan Skinner. Charles E. Crumr baugh, appellant, was appointed administrator of his estate, and is the husband of said Gertrude Crumbaugh. Benjamin C. Bees left about 90 acres of land near LeBoy in McLean county, on which there was a mortgage for about $3,000. After his death appellant, as administrator of the estate, discovered that- Bees had executed a note as surety with Nathan Skinner as principal, in the sum of $4,000, payable to appellee. Appellant concluded that Skinner would be unable to pay the full amount of the $4,000 note held by appellee and that there would be a deficit amounting to $2,400, which would have to be paid by the estate of Benjamin C. Bees and that thereby the'shares of Gertrude Crumbaugh and Katherine Bees in said estate would be decreased in the amount of $1,200 each. Appellant then induced Skinner and his wife to execute two notes of $1,200 each, payable to himself as trustee, and also a chattel mortgage to secure the same, covering the property in controversy in this case. Appellant, by his indorsements thereon, transferred one note to his wife, Gertrude Crumbaugh, and the other to Katherine Bees, now Katherine Wahls. Thereafter appellee entered judgment on the $4,000 note against said Skinner and an execution was levied upon the property in question in this case and covered by said chattel mortgage. A trial of the right of property was had in the county court which resulted in a judgment in favor of appellee.

It is contended by appellant that a contingent liability is a sufficient consideration to support a chattel mortgage. Goodheart v, Johnson, 88 Ill. 58. Conceding this proposition of law to be true was there any contingent liability on the part of Gertrude Crumbaugh or Katherine Wahls to pay a contingent deficiency on the judgment of appellee against Skinner? The evidence does not show whether there was any such deficiency, but, assuming that such existed, or would exist, the estate of Benjamin Bees would be liable therefor and not his heirs. There was no personal liability whatever upon Gertrude Crumbaugh or Katherine Bees to pay any part of this indebtedness. While it is true that if the estate of their father should be compelled to pay the unpaid balance of the judgment against Skinner by virtue of their father being surety on the note, the amounts of their shares in the estate would be lessened, yet, in any event, an heir can only take such assets of an estate as are left after the debts are paid, but no personal liability is imposed upon the heirs of an estate to pay the debts thereof. There was no consideration for the chattel mortgage of appellant. It is unnecessary to consider the other questions raised.

The judgment is affirmed.

Affirmed,


text:
    Harlan Gritton, by A. D. Gritton, Appellee, v. Illinois Traction, Inc., Appellant.
    Gen. No. 8,120.
    1. Negligence — allegation in regm'd to attractive nuisance as surplusage in declaration. In an action against an electric railway company for injuries to a boy coming into contact with, a hanging and charged trolley wire at a place outside of a village where children played, allegations in the declaration that the track, poles and wires were an attractive nuisance may be treated as surplusage, where there is liability from violation of a duty to use ordinary care to protect the boy from receiving injury from the maintenance of wires charged with a high voltage of electricity, creating danger to children of tender years with the company’s knowledge that the locality was used as a playground.
    2. Electricity — knowledge that premises were used by children as question for jury. In an action against an electric railway company for injuries to a boy coming into contact with a hanging and charged trolley wire at a place outside a village under evidence that for two years nearly every child in the village had used that particular part of the right of way as a playground, it is a question for the jury whether the company could have known by the exercise of ordinary care that such use was being made of the right of way.
    3. Harmless and prejudicial errors — deprivation of substantial legal right. A judgment should be reversed for an error in the trial of a ease only when a party to the suit has been deprived thereby of some substantial legal right.
    4. Harmless and prejudicial errors — instruction on assessment of damages for personal injuries. In an action for injuries to a boy from coming into contact with a wire charged with electricity, it is harmless error to grant an instruction that the jurors may assess damages regardless of what the evidence pertaining thereto might be, where the injuries are undisputed, serious and permanent, and the verdict is not excessive.
    5. Damages — when $6,000 not excessive for permanent injury to l>oy. A verdict for $6,000 is not excessive for injuries to a boy nine years of age coming into contact with a charged electric wire, resulting in serious and painful wounds to various parts of his body and a loss of all the fingers of one hand.
    Appeal by defendant from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Ju^lge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Rehearing denied January 4, 1927.
    Herbert Haase and Charles Troup, for appellant.
    Alfred A. Johnson, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court:

Harlan Gritton, a minor, who sues by his next friend, appellee, recovered a judgment in the circuit court of Vermilion county in the sum of $6,000, for personal injuries in an action on the case against Illinois Traction, Inc., appellant. The issues were presented by the first and third counts of the original declaration, the first additional count thereto and a, plea of the general issue.

-In the first count it is alleged, in substance, that on August 20, 1926, the defendant was possessed of and using and maintaining a switch track and right-of-way running north from its main line at the village of Til-ton along and near the west boundary limits of said village to the Carbon Hill coal mine; that the right-of-way on each side of the tracks was grown up in a thicket of trees, brush and weeds, só as to shade the track and roadbed and was uninclosed, unguarded and unfencedthat defendant maintained a copper trolley feed,wire, strung on poles and set close to the east rail of the track; that at a point 50 feet south of the over-crossing of the Chicago, Cincinnati, Cleveland & St. Louis Railroad said wire, for, to wit, one week, had been broken or cut and the end hung down to within one foot of the ground; that said track, roadbed, right-of-way and wire were and had been, for, to wit, one week, attractive to children for a place to play and a place of amusement, and were and had been for, to wit, one week, made use of by children of tender years as a playground and place of recreation and amusement and of which defendant knew or by the exercise of reasonable care could have known; that on said date while said wire was hanging as aforesaid, defendant caused a current of electricity, dangerous to life and limb, to pass through it; that it was the duty of the defendant, while maintaining said wire and causing electricity to pass through it, and while in possession of and using said premises, so attractive to children of tender years, to guard said premises and wire from children of tender years coming thereon, but defendant negligently failed so to do and while plaintiff, a boy of tender years, to wit, nine years of age, was on said date attracted to and walking along said track and right-of-way and exercising care and caution for his own safety, in consequence of its failure to fence, guard or protect said wire and premises so attractive to children of tender years, plaintiff came in contact with said wire and was injured, etc.

The third count sets forth the same descriptive matter, inducement, allegation of duty and breach thereof as averred in the first count, and then alleges that while plaintiff, a boy nine years of age, was, on said date, on the invitation of defendant, walking along said track and right-of-way and exercising due care for his own safety, in consequence of defendant’s negligence in maintaining said hanging wire, carrying such current of electricity, plaintiff came in contact with the same and was injured.

In the first additional count the same general averments are made as in the other t#o counts and it is further alleged that said track, roadbed, right-of-way and wire were and had been theretofore made use of by children of tender years, as a playground and place of recreation and amusement and of which defendant knew, or by the exercise of ordinary care could have known, and defendant permitted a current of electricity, dangerous to life and limb, to pass through said broken and hanging wire while it was in possession and using said premises so known to defendant or which might have been known by the exercise of reasonable care, to be used by children of tender years as a playground and place of amusement and recreation; that it was defendant’s duty to protect and guard said wire so the plaintiff, a child of tender years, would not be injured by the same, but in this defendant failed; that while plaintiff, a boy of tender years, to wit, nine years of age, was on said date attracted to and walking along said track and right-of-way and exercising care and caution for his own safety, he, in consequence of defendant’s failure to fence, guard or protect said wire as aforesaid, and carrying such current of electricity, on the premises on which children of tender years were in the habit of playing, and which was a place of recreation and amusement as aforesaid, came in contact with said wire and was injured.

The main line of the Illinois Traction railroad runs east and west through the village of Tilton. Ell street runs north and south, the west line of which marks the western limits of the village. First street runs east and west, the north line of which makes the northern boundary of the village. About a quarter of a mile north of the village is the Carbon Hill coal mine. A branch railroad track runs south from this coál mine and joins the main track just west of Ell street. About 700 feet north of Tilton the branch track is crossed by a trestle overcrossing of the Chicago, Cincinnati, Cleveland & St. Louis Railroad. At this point and for some distance north and south thereof, the branch track runs through a sort of ravine. West of the branch, track and directly west of the western terminus of First street is the plant of the refractory company. First street does not extend westerly across the tracks to this plant, but a passageway has been made and is used by the public coming to and from the plant and the village of Tilton. The right-of-way of the switch track is 100 feet in width, but the track itself does not in all places run in the center of the right-of-way but frequently meanders away from the center. There was no fence of any kind along the eastern side of the right-of-way, and, with the exception of a fence around the refractory plant, there was none on the western side of the right-of-way. The trolley feed wires were carried by brackets fastened to poles erected east of the track from First street north to the overhead crossing mentioned. Along the track on either side was a dense growth of trees, bushes, vines and weeds. Some of the trees were 'red haw trees and there were blackberry, raspberry and gooseberry bushes, strawberry plants, flowers and grapevines. Running along side of the track was a ditch or small stream. Easy access was had to the track from the west end of First street and there was nothing to indicate the boundary lines of the right-of-way. The evidence introduced by appellee tended to show that children residing in Tilton, in the spring and summer of 1926 and for several years prior thereto, had been in the habit of walking north on this branch or switchtrack to the overhead crossing of the Chicago, Cincinnati, Cleveland & St. Louis Railroad, and used the vicinity thereof as a playground; that the boys built huts and caves and played at being cowboys and Indians, made dams in the stream, caught minnows and went in swimming; that the girls also built little houses on each side of the track and visited back and forth, and that all the children picked berries and gathered the red haws and chased each other back and forth across the track.

The evidence further tends to show that on August 20, 1926, a feed wire which stretched along the tracks from pole to pole had been broken or cut and a portion thereof was hanging from a bracket to -within about a foot from the ground. At this time the use of the track had been practically abandoned by appellant, the last car having passed over it some weeks previously. The evidence further tends to show that this wire had been hanging there for several weeks prior to the 20th day of August. On this day appellee, age nine, with his cousin, Lura Marie Gritton, his sister Helen, and his brother Frank, all of- whom were younger than he, went up along the track near the overhead bridge above mentioned. Appellee began cutting in the bushes to get a stick for' a “'nigger shooter” when, seeing the wire hanging down from the bracket attached to the pole, he caught hold of it and was immediately rendered unconscious. His mother was called who pulled him away from the wire and carried him to the hospital. There is no dispute over his injuries, which consisted of a burn on the back of his head about the size of a silver dollar, numerous burns upon the back and a large burn on the calf of the right leg the size of a man’s hand, which left a large raw surface for many days. The most serious injury, however, was to the left hand that had grasped the wire, the fingers of which were completely deadened and all of them later staffed away and were entirely removed. The palm of the hand was also severely burned. He was confined to the hospital for 46 days and after he left the hospital received treatment at the doctor’s office every second or third day for a month or more.

Some of the officers and employees of appellant testified that they had never had any knowledge that children were in the habit of playing on the right-of-way at the place in question. Several other witnesses testified on behalf of appellant that they had never seen any children playing at this place, but there was evidence for appellee to the effect that nearly every child living in the village of Tilton used this locality for a common playground.

The first point made by appellant is that appellee cannot recover because the maintenance of its switch track and the trolley poles and wires did not create an attractive nuisance, and, even if it did, the place where the accident occurred was not visible from any point where appellee had a lawful right to be. McDermott v. Burke, 256 Ill. 401, 402; St. Louis V. & T. H. R. Co. v. Bell, 81 Ill. 76. In our opinion the answer to each of these propositions is, that it is immaterial under the facts in this case whether the conditions mentioned constituted an attractive nuisance or not, and the allegations in the declaration to that effect may be treated as surplusage, because the maintenance of the trolley and feed wires charged with a large voltage of electricity created an agency dangerous to life and limb and appellant had knowledge that the locality where this agency was maintained, was commonly used as a playground for little children under the age of discretion, and it was in duty bound to at least use ordinary care to protect them from receiving injuries thereby. In the case of City of Pekin v. McMahon, 154 Ill. 141, 148, the court cited with approval the following proposition: ‘ ‘ The owner of land, where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in safe condition; for they being without judgment and likely to be drawn by childish curiosity into places of danger, are not. to be classed with trespassers, idlers and mere licensees.” In the case of Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395, the Supreme Court very lucidly and forcibly announces the principle which we believe is applicable to the facts in this case. It is there said: “It is not necessary, to make a defendant liable, that the attractive and dangerous thing should be visible from the street and that children should have been attracted to the premises by it. If an owner maintains dangerous conditions upon his premises to which he permits children to come he must use ordinary care to guard them against danger which their youth and ignorance prevent them from appreciating. There is no implied invitation from the mere existence of a dangerous attraction which is not discoverable off the premises, but if to the knowledge of the owner children habitually come upon his premises where a dangerous condition exists to which they are exposed, the duty to exercise care for their safety arises, not because of an implied invitation but because of his knowledge of unconscious exposure to danger which the children do not realize.”

It is next urged that there is no direct proof that appellant had any actual knowledge of such use of its right-of-way by children and without such actual knowledge on its part it cannot be held liable for the injuries sustained. If appellant’s knowledge of the defective condition of the feed wire only had been involved, direct proof would not have been necessary to show such knowledge, but proof that it had been in such defective condition for such a length of time that appellant, by reasonable or ordinary care, could have discovered its condition, would have been sufficient. We see no reason why another or different rule should be applied to its knowledge of the use of the right-of-way by the children. The evidence for appellee tended to show that for at least two years nearly every child in the village of Tilton used that particular part of the right-of-way as a playground and it was for the jury to determine, as a question of fact, from the evidence, whether appellant by the exercise of ordinary care could have known that such a use was made of its right-of-way.

"What we have heretofore said in regard to the law applicable to this case, disposes of all the errors assigned to the giving or refusal of the instructions except as to instruction number 2, given on behalf of the plaintiff, which is as follows: ‘ ‘ The court instructs the jury that if you find for the plaintiff you will assess his damages at such a sum of money as in your opinion will be reasonable and just compensation for the injuries he has sustained. In estimating the damages, you will take into consideration the pain, if any, he has sustained by reason of such injuries, if any; and if you believe from the evidence that his injuries, if any, are permanent, and that hereafter his ability to labor and earn money will be impaired by reason of such injuries, if any, then you will take this into consideration in estimating the damages.” This instruction informs the jurors that they can assess such damages as, in their opinion, may seem reasonable and just, regardless of what the evidence pertaining thereto might be. There is no principle of law more elementary than that a jury should decide the issues in a case from the facts proven by the evidence. Nothing can be said in favor of this instruction and similar instructions have been so often condemned that it would serve no good purpose to reiterate the cases here, but they are numerous and unanimous. However, it is not the province nor the duty of an appellate tribunal to reverse judgments on every error that may intervene in the trial of a case, but should do so only when a party to a suit has been deprived of some substantial legal right. If there had been any contest as to the extent of the injuries or if the amount of the damages fixed by the verdict had savored of excessiveness, it would be our plain duty to reverse the judgment and remand this case for a new trial. But the injuries in this case are undisputed, serious and permanent. This young-boy, appellee,- besides having received serious and painful wounds to other parts of his body, will have to go through life, so far as the use of his hands is concerned, with a 50 per cent physical efficiency. The amount of the verdict is not excessive for the injuries sustained and the giving of it was harmless error.,

The judgment of the circuit court 'is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    Robert M. Kirkpatrick for use of J. A. James, Appellee, v. H. N. Schuyler, Executor of the Last Will and Testament of Isabelle Bacon Whitlocke James, Deceased, Appellant.
    Gen. No. 8,075.
    Estates of decedents — liability for wife’s funeral expenses as between estates of wife and her husband. The allowance against the estate of a deceased wife of an undertaker’s claim for funeral expenses incurred in her burial is in compliance with Cahill’s St. eh. 3, K 71, and is in conformity with a direction of her will for payment of funeral expenses out of her estate, and therefore it is proper not to file the claim against the estate of her husband, who died after her death.
    Appeal by defendant from the Circuit Court of Christian county; the Hon. Boy P. Dove, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Springstun & Springstun, for appellant.
    A. L. Yantis, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted from an order of the circuit court in Christian county, allowing the claim of Robert M. Kirkpatrick, an undertaker, for the use of the assignee, J. A. James, against the estate of Isabelle Bacon Whitlocke James, deceased. The claim is for funeral expenses incurred in the burial of the deceased. The deceased died testate leaving a solvent estate, and at the time of her death was the wife of Sydney W. James, who afterwards also died leaving an estate. In her will, which has been probated, the deceased wife provided for the payment of her funeral expenses out of her estate. It is contended, on appeal, that the husband or the husband’s estate is primarily liable for the funeral expenses of a deceased wife, and that therefore this claim should have been filed against the estate of the deceased husband, and that the allowance of the claim against the wife’s estate was erroneous. The statute makes provision for the filing and allowance of claims for funeral expenses against the estate of any decedent, regardless of whether the decedent is a husband or wife; and it also provides that such claims shall be entitled to precedence in payment as claims of the first class. Smith-Hurd Rev. St. ch. 3, sec. 71; Cahill’s St. ch. 3, ¶ 71. The order of the court allowing the claim for funeral expenses against the wife’s estate was therefore in compliance with the provisions of the statute, and was also in conformity with the direction given by the deceased wife in her last will and testament. An allowance of a claim against the estate of a deceased wife for funeral expenses is proper. Gustin for use of Atwood v. Bryden, 205 Ill. App. 204, 218. Judgment is therefore affirmed.

Judgment affirmed.


text:
    Louis J. Bremer, Administrator de bonis non of the Estate of Mary Louise Pearl, Deceased, Appellant, v. Chicago & Eastern Illinois Railway Company, Appellee.
    Gen. No. 8,081.
    1. Courts — jurisdiction of action against purchaser at foreclosure sale who assumes liabilities of federal receiver. Under U. S. Comp. Stat. 1901, p. 582, which authorizes suits against receivers without leave of court, an action against one purchasing property of a railroad company at a foreclosure sale under a decree requiring him to assume the liabilities of a federal receiver appointed in the foreclosure suit is properly brought in a State court.
    2. Courts — continuation of suit in federal court after foreclosure sale of property in hands of receiver. Where an action is brought in a State court against a federal railroad receiver for damages for death caused by the operation of the railroad by the receiver, and the railroad property is subsequently under a foreclosure decree requiring the purchaser to assume all liabilities incurred by the receiver in the operation of the property, the provisions of an order discharging the receiver, that the federal court retains jurisdiction to determine claims and demands which are required to be presented by intervention, does not deprive plaintiff of the right to continue the prosecution of the suit in the State court, nor to have the right of recovery, arid the question of liability and the amount thereof determined by that court.
    3. Courts — petition in federal court regarding claim against receiver as not affecting continuation of suit in State court. Where an action is brought in a State court against a federal railroad receiver for damages for death caused by the operation of the railroad by the receiver and, after a foreclosure sale of the property under a decree requiring the purchaser to assume all liabilities incurred by the receiver in the operation of the property, an order, discharging the receiver, provides for the federal court to retain jurisdiction to determine claims and demands which are required to be presented by intervention, a petition by plaintiff merely praying that the claim involved in the suit be held in abeyance by the federal court until final adjudication of the cause in the State court and that leave be granted plaintiff, the administrator, to file his claim in such court for the amount which the State court shall find to be due, is not a bar to the further prosecution of the suit in the State court.
    4. Limitations of actions — amendment changing parties as not new suit or new cause of action. In an action by an administrator against the receiver of a railroad company for damages for death caused by the operation of the railroad by the receiver, an amendment substituting an administrator de bonis non as plaintiff and the purchaser of the railroad at a foreclosure sale as defendant does not amount to the commencement of a new suit nor a new cause of action within the statute of limitations.
    Appeal by plaintiff from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed November 21, 1927.
    Brown, Hay & Stephens, Clark & Hutton and Wilbur R. Wicks, for appellant; Wilbur R. Wicks, of counsel.
    Acton, Acton & Snyder and Homer T. Dick, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This action was commenced in the Circuit court of Vermilion county by Lewis K. Pearl, as administrator of the estate of Mary Louise Pearl, deceased, to recover damages for the benefit of the next of Mn of said deceased, against William J. Jackson, as receiver of the Chicago & Eastern Illinois Railroad Company. The right to recover damages for the death of the deceased was based on alleged negligence of the servants of the receiver in the operation of the railroad passenger train, which it is alleged resulted in a collision at a railroad street crossing in the village of Alvin, Illinois. There was a trial of the case and a verdict and judgment against the receiver of the railroad company in the sum of $2,500; but an appeal was prosecuted from the judgment to this court and the judgment was reversed and the cause remanded to the circuit court of Vermilion county. Pearl v. Jackson, 230 Ill. App. 674. Thereafter, Lewis K. Pearl resigned as administrator, and the probate court of Vermilion county appointed the public administrator, Louis J. Bremer, as administrator de bonis non of the estate, and Bremer as such administrator was substituted as party plaintiff in the suit. Subsequently, on June 26, 1922, William J. Jackson was discharged as receiver by the order and decree of the District Court of the United States for the Northern District of Illinois, and after the discharge of the receiver, by leave of court, the appellee, Chicago & Eastern Illinois Railway Company, which is the successor of the Chicago & Eastern Illinois Railroad Company, was made defendant, and thereupon an amended declaration was filed. The amended declaration charges negligence in the management and operation of the train, which is alleged to have caused the collision, and the death of the plaintiff’s intestate; it also charges a failure to ring a bell or sound a whistle, as required by the statute ; it also charges that the train was running at an excessive rate of speed through the village of Alvin in violation of the speed ordinance of the village, in force at that time. The declaration also contains a count charging a wilful violation and disregard of the speed ordinance of the village. The declaration sets forth in each count the order and decree of the United, States District Court for the Northern District of Illinois, under which the appellee became the owner by purchase of all the property of its predecessor, the Chicago & Eastern Illinois Railroad Company, which decree was entered on May 22, 1917, and expressly provides that the said railroad track right-of-way, rolling stock and train of cars and other property of the Chicago & Eastern Illinois Railroad Company should be sold by the special master of said court and that, in addition to the consideration paid by any purchaser at such sale, said purchaser and his assignees should, as a part of the consideration and purchase price, take such property and receive the deeds or other instruments of conveyance and transfer thereof, upon the express condition that he and they, or his or their successors or assignees, shall pay, satisfy and discharge any unpaid indebtedness and liabilities of the receiver incurred in the management and operation of the property purchased and otherwise in the discharge of his duties as receiver; and the declaration avers that by purchasing and accepting a deed of conveyance under the terms of the decree referred to, the appellee became liable to the appellant, this cause of action and liability being one that resulted during the operation and management of the railroad property sold, by the receiver. To the declaration, the appellee pleaded the general issue and two special pleas in defense of the appellant’s right of recovery, and appellant filed a general demurrer to each of the special pleas. The trial court overruled the demurrers and appellant elected to stand by the demurrers, and the court thereupon entered judgment in bar of the action and for costs against the appellant. This appeal is prosecuted from the judgment.

The question presented on appeal is whether the matters set up in the special pleas, which are admitted by the demurrer, constitute a bar to the appellant’s right of recovery. The matter set up in the first special plea in bar of the appellant’s right of action is contained in an order of the District Court of the United States for the Northern District of Illinois, discharging the receiver, William J. Jackson, which was entered June 26, 1922, after the sale of the railroad property to the appellee had been carried into effect under the previous order of the court, as set forth in the declaration. The order discharging the receiver contains the following matters which are set up in the plea:

“It is further ordered, adjudged and decreed that this cause is retained and kept open and the Court reserves jurisdiction thereof and of all questions heretofore reserved in this cause, whether by the decree of sale entered herein May 22, 1917, the order of confir- . mation entered herein May 3, 1921, the final decree entered herein December 9, 1921,.or otherwise, including jurisdiction to ascertain and determine all claims, demands and liabilities against said Deceiver, or his . predecessors in office, or against the railroad and property delivered by said Deceiver to the assignees of the purchasers thereof and against such purchasers and their assigns which have arisen or may arise out of said receivership and which have not been barred by decrees heretofore entered in this cause. All such claims, demands and liabilities, if not paid in due course by or in behalf of the Chicago and Eastern Illinois Dailway Company, shall be made and presented by intervention in this Court and in this cause, for the purpose of being ascertained and determined, and any orders, judgments or decrees rendered in such proceedings, may be enforced and shall be enforced only against the railroad and property delivered by said Deceiver to said Dailway Company, to the same extent and in the same manner as provided in said Decree of Sale and subsequent decrees relating to said sale. Such intervention proceedings shall be filed as aforesaid on or before September 30, 1922, and after that date no such intervention in this cause shall be permitted, and the rights of any claimants who, on or before such date, shall not have commenced intervention proceedings to avail themselves of the remedies herein provided for their benefit, shall cease and determine as to such railroad and property of said Dailway Company. •
“It is further ordered, adjudged and decreed that Chicago and Eastern Illinois Railway Company, the assignee of said purchaser shall cause brief notice of the contents of this order to be published in daily newspapers published respectively in the cities of Chicago, Illinois, and New York, New York; the publication of such notice to begin not later than thirty days from the date hereof, and to continue once each week for a period of five weeks; and said Railway Company shall also, within thirty days from the date hereof, cause a copy of this order to be mailed or otherwise transmitted to all parties known to it to be asserting claims or demands arising out of said receivership.
“It is further ordered, adjudged and decreed that all such claims and demands filed in this cause pursuant to this order be and the same hereby are referred to Herbert A. Lundahl, Esq., Special Master, heretofore appointed in this cause, who shall hear and report thereon to the Court with his recommendations; that said Chicago & Eastern Illinois Railway Company be, and hereby it is, allowed twenty days from the date of the filing of any such intervening petition, to answer or otherwise plead thereto, and the respective claimants may reply or otherwise plead to such answers respectively within twenty days after the filing thereof.
“It is further ordered, adjudged and decreed that said Chicago and Eastern Illinois Railway Company shall have the right, if it so elects, at its own cost and expense, to be substituted a party in lieu of the said Receiver, in all or any litigation by or against said Receiver now pending on appeal, or otherwise, or to continue such litigation in the name of said Receiver.”

It is contended by the appellee that the order discharging the receiver set up in the plea deprived the circuit court of Vermilion county of further jurisdiction of this case, which was pending therein, and that it barred appellant’s right of recovery for wrongfully causing the death of the plaintiff’s intestate, as alleged in the declaration, except in so far as the order referred to allowed the administrator of her estate to intervene in the United States District Court which entered the order discharging the receiver, and to file a claim or demand pursuant to the order; that upon the entry of the order referred to, the right of the appellant to further proceed with the cause pending in the circuit court of Vermilion county ceased. We cannot agree with this contention. The order under which the appellee purchased the railroad property in question was unconditional in its terms, namely, that any purchaser and his assignees should, as a part of the consideration and purchase price, take such railroad property and the deeds or other instruments of conveyance and transfer thereof, upon the express condition that he and they, or his or their successors or assignees, shall pay, satisfy and discharge any unpaid indebtedness or liabilities of the receiver incurred in the management or operation of the property purchased. We are of- opinion that the unconditional assumption of liability such as the one here involved by the appellee, in its purchase and acquisition of the railroad property in question, was not modified or changed by a subsequent decree of the court entered for the purpose of discharging the receiver. Nor can it be said that such order was intended to operate as a change or modification of such liability assumed by the appellee, but the order should be given the same interpretation which was given such an order in Texas & P. Ry. Co. v. Johnson, 151 U. S. 81, 38 L. Ed. 81, 14 Sup. Ct. 250. In that case the court held that an order like the order in question fairly interpreted, meant that-the court, when about to release the receiver and his bondsmen by a determination of the foreclosure proceedings and a discharge of the receiver, gave an opportunity to those who had claims to present them; but that, after February 1, 1889, the date fixed in the order, those who had not intervened would cease to be entitled to resort to the circuit court in the equity suit, and would be remitted to such other remedies as might be within their reach. The correctness of this interpretation as applying to the present case is made more obvious by the fact that in the order discharging the receiver under consideration, the court provided that the claims and demands which were filed pursuant to the order should be referred to Herbert A. Lundahl, Esq., special master, theretofore appointed, who should hear and report thereon to the court with his recommendations, which justifies the inference that no claims or demands are included in the order, the determination of which could only be legally accomplished by a trial by jury. It may also be pointed out, that “the preservation of general equity jurisdiction over suits instituted against receivers without leave does not, in promotion of the end of justice, make it competent for the appointing court to determine the rights of persons who are not before it or subject to its jurisdiction.” Texas & P. Ry. Co. v. Johnson, supra; Texas & P. Ry. Co. v. Bloom’s Adm’r, 164 U. S. 636, 41 L. Ed. 580, 17 Sup. Ct. 216. Under the Act of Congress every receiver or manager of any property appointed by any court of the United States may be sued in respect to any of his acts or transactions in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed in so far as the same shall be necessary to the end of justice. Section 3, Act of Congress, March 3, 1887, ch. 373, 24 Stat. 554; Act of August 13, 1888, ch. 866, 25 Stat. 436, U. S. Comp. Stat. 1901, p. 582. Under this Act, which authorizes suits against receivers without leave of court, an action against one purchasing property of a railroad company at a foreclosure sale, under a decree requiring him to assume the liabilities of a receiver appointed in the foreclosure suit, is properly brought in a State court. American Brake Shoe & Foundry Co. v. Pere Marquette R. Co., 263 Fed. 237; s. c., 278 Fed. 832; Thompson v. Northern Pac. Ry. Co., 93 Fed. 384. And it has been repeatedly held that where by the local law the obligation assumed by a successor or purchaser, who takes over property or is one of direct liability, and not merely equitable, for the paying of claims chargeable against the property or fund, such local law fixes the nature of the cause of action for the enforcement of such liability in the federal court; and an action at law may be maintained against the purchaser alone to recover for a personal injury for which the property in the hands of the receiver was chargeable. Gray v. Grand Trunk Western Ry. Co., 156 Fed. 736; Gobleman v. Peoria, D. & E. Ry. Co., 179 U. S. 335, 45 L. Ed. 220, 21 Sup. Ct. 171; Norfolk Southern Ry. Co. v. Talbott, 190 Fed. 737. See also Chicago Great Western R. Co. v. Hulbert, 205 Fed. 248; Baltimore & O. R. Co. v. Burris, 111 Fed. 882. In Lassiter v. Norfolk Southern R. Co., 163 N. C. 19, it was distinctly held that where the purchasers of a railroad from the receivers appointed by a federal court agreed to pay all liabilities incurred by the receivers, a provision in the decree confirming the sale, which retained exclusive jurisdiction of the cause in the federal court to enforce the obligations assumed by the grantees, does not deprive the administrator of one killed by the negligence of the employees of the receivers of his right to sue the purchaser for damages in the State court in view of the Act of Congress of March 3, 1887, which permits an action in the State court against receivers without obtaining the permission of the federal court which appointed them. To the same effect is White v. Chicago, P. & St. L. R. Co., 196 Ill. App. 459. In view of the foregoing authorities, we are of opinion that the provision in the order of the United States District Court discharging the receiver, and concerning the matter of claims and demands and liabilities of the receivership, did not deprive the appellant of the right to continue the prosecution of this suit against the appellee in the circuit court of Vermilion county, nor to have the right of recovery and the question of the liability, and the amount thereof, determined in that court; and that therefore the mat-tors set up in the plea cannot be considered as a legal defense to the action, nor as a bar to appellant’s right of recovery. It is also contended by the appellee that the original plaintiff, Lewis K. Pearl, as administrator, submitted himself to the jurisdiction of the District Court by filing the claim for damages here involved by intervening petition in the District Court, as alleged in its plea, and that therefore the matter of the adjudication of his right to a recovery of damages became a matter exclusively within the jurisdiction of the District Court; and that therefore the special plea referred to, which sets up the intervening petition of Lewis K. Pearl, as additional matter of' defense to this suit, was a bar to the further prosecution thereof. In reference to the petition referred to, it will be noted that the petition does not submit the matter of the right of the administrator of the estate of Mary Louise Pearl to recover to the adjudication of the District Court, but merely prays that the claim involved in this suit may be held in abeyance by the District Court until the final adjudication of the cause in the State court; and that leave be granted to the administrator to file his claim in the District Court for the amount which the State, court would finally determine to be due. There is clearly no submission to the jurisdiction of the District Court of the question of the administrator’s right to recover, nor of the amount, if any, he is entitled to recover, nor of a transfer of his right of action from the jurisdiction of the State court to the jurisdiction of the District Court. The second special plea avers that the appellee ought not to have or maintain his aforesaid action against the appellant because Mary Louise Pearl died intestate April 3, 1921, in Vermilion county; and that the cause of action for her death arose more than one year prior to the time that the appellant was made a party defendant in the cause; also, that the cause of action did not arise against the appellee at any time within a year next preceding the time that the appellee was made a party in the cause, nor within one year next before the time plaintiff was appointed and qualified as administrator of said estate. Apparently this plea purports to set up the statute of limitations as a defense. The substitution of new parties in the action, however, does not amount to a new suit, nor is it a new cause of action. Section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, provides that amendments may be made in an action at law of changing the form of the action, or making other parties plaintiff or defendant when necessary to enable the plaintiff to sustain the action. The real parties in interest were the next of kin of the plaintiff’s intestate; and inasmuch as the substitution of a new party plaintiff or another party defendant is not the commencement of a new suit, nor a new cause of action, the limitation invoked by the plea is not effective. Houghland v. Avery Coal & Mining Co., 246 Ill. 609. We conclude, therefore, that the circuit court erred in overruling the demurrer, and the judgment is therefore reversed and the cause remanded with directions to sustain the demurrer to the first and second special pleas.

Reversed and remanded with directions.


author: Mr. Presiding Justice Barnes

text:
    Maiman-Hurwitz Manufacturing Company, Plaintiff In Error, v. David Maiman, Defendant in Error.
    Gen. No. 31,677.
    1. Motions and orders — right to proceed and matters to which motion is confined. The right to proceed by motion implies the pendency of a suit between the parties, and is confined to incidental matters in the progress of the cause.
    2. Discontinuance, dismissal and nonsuit — expunging order to dismiss when jurisdiction lacking to entertain motion to dismiss. Where, prior to the entry of a judgment for defendant abating an action, defendant moved to dismiss the suit but no action is taken on the motion until a subsequent term, the motion to dismiss is merged into the judgment, which has not been disturbed, and the court has lost jurisdiction of the cause and, therefore, an order granting the motion to dismiss is void and should be expunged in accordance with a motion to that effect made by plaintiff after the cause was redocketed upon a reversal of the judgment with a remandment for further proceedings.
    3. Defaults — when motion to default defendant for want of plea should not he granted. Where, prior to the entry of a judgment for defendant abating an action, defendant moved to dismiss the suit but no action is taken thereon until a subsequent term, the motion to dismiss is merged into the judgment, which has not been disturbed, and, after a reversal of the judgment and a remandment of the cause for further proceedings, plaintiff’s motion for a default judgment against defendant for want of a plea should not be granted, although defendant’s motion to dismiss was void and plaintiff’s motion, after the remand, to expunge the order of dismissal was entitled to be granted.
    Error by plaintiff to the Superior Court of Cook county; the Hon. B. B. Fowler, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed January 31, 1928.
    Rehearing denied February 14, 1928.
    Gallagher, Shulman, Abrams & Henry, for plaintiff in error.
    Hoover & Cody, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The action in the court below was in assumpsit. On February 13, 1926, the trial court, on defendant’s motion, “abated” the cause of action and entered a judgment against plaintiff for costs. A writ of error to review such judgment was sued out of this court four days later, February 17, and served on defendant in error on the 19th. Before entry of such judgment defendant moved for a dismissal of the suit for want of authority on the part of plaintiff’s attorneys to file and prosecute it. The motion was denied. Later in the month, on the 25th, the trial court gave defendant leave to file a motion to set aside the order denying that motion, and continued the motion to March 6, 1926, the next term of court, when the court vacated said order and ordered the dismissal of the cause of action for want of such authority. Plaintiff’s attorneys appeared and excepted to the order.

On October 5, 1926, this court rendered an opinion upon the former writ of error reversing said judgment abating the action for error in disposing of the case without a proper presentation of the issues, and remanded the cause for further proceedings not inconsistent with the views therein, expressed. (242 Ill. App. 45, 50.) The mandate of the court to such effect was filed in the court below November 12, 1926, and the cause was redocketed November 29. On December 4, 1926, plaintiff made a motion to expunge from the record the order of March 6, 1926, and for a rule on defendant to plead in accordance with the opinion of this court. It was denied. After such ruling plaintiff moved the court to default the defendant for want of a plea and enter judgment for plaintiff on its declaration and affidavit of claim attached thereto. That motion was not entertained, the order stating “the court considers this case dismissed by the order of March 6, 1926, and refuses to entertain plaintiff’s motion.” A bill of exceptions setting forth such proceedings was properly filed nunc pro tunc as of December 8, 1926, when it was duly presented, and this writ of error was sued out to review the action of the court as aforesaid.

Conceding the trial court still had jurisdiction during the February term to vacate the judgment of February 13 abating the action, no motion to that effect was made and when the term ended that judgment stood and had disposed of the case, and the suit as well as the jurisdiction of the court over it had also ended. Thereafter, no motion therein was availing. “The right to proceed by motion implies the pendency of a suit between the parties, and is confined to incidental matters in the progress of the cause.” (28 Cyc., pp. 4, 5; Hill v. Richards, 11 Smedes M. & M. [Miss.] 194.) When, therefore, the motion to dismiss the suit came up for hearing on March 6, 1926, at the following term, although previously continued to that term, no suit was pending. It had merged into a judgment over which the court had lost jurisdiction to disturb. There being nothing, therefore, to which the motion could attach, the court had no jurisdiction to entertain it. The order granting it was void and should, in accordance with plaintiff’s motion, have been expunged, and such proceedings had as the mandate directed. (People ex rel. Horberg v. Waite, 243 Ill. 156, 161.) Plaintiff’s motion for judgment, however, was not warranted by the record.

The case therefore stands, as it stood on reinstatement, for compliance with the mandate of this court. The order denying plaintiff’s said motion to expunge is, therefore, reversed with direction to allow the same, and for compliance with the previous mandate of this court.

The merits of the motion to dismiss the suit for want of authority to bring it are not before us for consideration.

Reversed and remanded loith directions.

G-ridley and Scanlan, JJ., concur.