text:
    In re Estate of Leonardo Melone, Deceased. Giulio Grieco, Appellee, v. Chicago Title & Trust Company, Appellant.
    Gen. No. 31,869.
    1. Estates op decedents — what constitutes trust claim on failure to transmit money. Where a person receives a certain sum of foreign money under an agreement to transmit it directly to a foreign bank for the sender regardless of any rate of exchange, and he has no banking connection or credit with the foreign bank, a claim against his estate by the sender, after his conversion of the money to his own use, is properly allowed as claim within the fifth class under section 70 of the Administration Act, Cahill’s St. ch. 3, ¶ 71, as money received in trust.
    2. Estates op decedents — use of directions on hack of receipt of money in determining nature of claim. Where a person receives a certain sum of money under an agreement to transmit it directly to a foreign bank for the sender regardless of any rate of exchange, and he has no banking connection or credit with the foreign bank, little weight should be given to the directions on the back of the receipt in determining whether the sender’s claim against his estate, after his conversion of the money to his own use, should be allowed as a claim within the fifth class as money received in trust or within the sixth class as mere business transaction, where the receipt is a mere blank form in general use referring to the decedent as a bank and he did not comply with the ordinary rules of banking surrounding a banking corporation or the statutory requirements of such a business.
    3. Estates op decedents — when failure to transmit money as not resulting m “technical trust” claim. Where a person receives a certain sum of foreign money under an agreement to transmit it directly to a foreign bank regardless of any rate of exchange, and he has no banking connection or credit with the foreign bank, upon converting the money to his own use he does not hold it as a “technical trust,’’ which would require the sender’s claim against his estate to be allowed as a claim under the sixth class rather than under the fifth class.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Kickham Scandan, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed;
    Opinion filed January 18, 1928.
    Rehearing denied January 30, 1928.
    Dawson & Dawson, for appellant; Mitchell Dawson, of counsel.

      Robert F. Kolb and Henry M. Tufo, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The facts in this case show that the deceased, Leonardo Melone, had conducted a so-called private banking business in his grocery store at 602 West Taylor street, in Chicago (adopted from statement of facts in appellant’s brief). He also accepted money for deposit, giving a form of deposit book showing entries and withdrawals: He died on March 5, 1925, and the claimant, Giulio G-rieco, filed his certain claim in the probate court against the estate of the deceased, claiming it to be a trust fund, and asking to have his claim classified as of the fifth class. It appears that on December 31, 1924, he had on deposit with the deceased certain moneys, and on the day in question he withdrew $2,300 in cash. The deceased then asked him what he was going to do with the money and he told him he was going to send it to Italy. The deceased then asked him why he could not transmit it for him; and there seems to have been a discussion as to whether or not the deceased would send it as cheaply as the claimant could have it transmitted through some other source, and thereupon an agreement was entered into by which the deceased agreed to give the claimant 55,000 lire for the sum of $2,337, and to send it to the Banca Popolare Cooperativa at the post office of Alfadena, Province of Aquila, Italy. The claimant, thereupon, gave the deceased the $2,300, which he had just withdrawn and which he had in his possession, together with $37 which he took from his pocket and added to the $2,300. The deceased then issued a certain receipt which on its face contained the amount of the lire received — namely 55,000 — the date and the place to which it was to be sent. On the back of the receipt there appear certain conditions tending to limit the liability of the deceased, referring to himself as a bank, and stating that in case payment could not be made, reimbursement would be made on the basis of the rate of the Chicago and New York Stock Exchange for the foreign value specified, following notice from the foreign country. It stated further that in executing said remittance the bank would act merely as an agent of the sender and was not assuming any liability for errors, mutilations, omissions, etc., in its transmission and delivery, or for any loss caused by any other agency outside of the one controlled by the bank. There does not appear to be anything in the record indicating that" the deceased had any foreign banking connections or any domestic banking relations, and, so far as the record discloses, the money was to be sent directly to the Banca Popolare Cooperativa at the address named in the receipt. The nature of the transaction itself precluded any question of change of rate of exchange, as it appears definitely that the 55,000 lire purchased at the time was to be sent directly, regardless of any change in the rate of exchange. It was agreed Melone never sent the money to Italy. The natural inference to be drawn from all the facts would be that the money was converted by him, to his own use.

On the hearing in the trial court the claim was allowed as a claim coming within the fifth class under section 70 of the Administration Act of Illinois, Cahill’s St. ch. 3, if 71. That part of this section which is applicable to this case reads as follows:

“Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not, accounted for.”

It is insisted by counsel for the" estate that, firstly, this transaction did not in fact create a trust but was a mere business transaction and consequently the claim against the estate should have been classified under the sixth section of the Administration Act, Cahill’s St. ch. 3, if 71, which is applicable to all other debts and demands of any kind or character whatsoever; and, secondly, that this is not such a trust as was intended by this particular section of the Administration Act.

Our attention has been called to a number of cases involving transactions with banks, where the banks agreed to transmit, at the request of depositors, moneys to the depositors’ credit in banks in foreign countries. In this connection counsel cite the cases of Beecher v. Cosmopolitan Trust Co., 239 Mass. 48, and Legniti v. Mechanics’ & Metals Nat. Bank of New York, 230 N. Y. 415. In the Massachusetts case it appears that the bank involved had a correspondent at the point in Europe where the delivery was to be made and that, as a matter of fact, the Cosmopolitan Trust Company had a credit with said bank and had drawn against that credit in satisfaction of the claim of Beecher, so that the transaction was a business transaction transferring a credit from one bank to another. The court in its opinion says that there being no contention that the trust arose through the fraud or bad. faith of the company or its officers in receiving the money of the plaintiff with knowledge of its insolvency, the argument that there was a trust created by the delivery of the money to the trust company for remittance must stand or fall upon the facts, or the absence of fact, that the money was received by the defendant trust company as a special deposit for transmission tó its correspondent bank in Roumania. We do not believe that the principles involved in that case are applicable to the facts disclosed by the evidence in the case at bar.

In the New York case, Legniti v. Mechanics’ & Metals Nat. Bank of New York, supra, it was held that the transaction on the part of the plaintiff was a purchase of credit and not the transfer of specific money, and that therefore no trust attached to the proceeds of the check in the hands of the bank,

As we have already stated, there does not appear to be any evidence indicating that the deceased had any banking connections or credit at the bank where the money was to be sent, nor was there any issuance of any drafts; but the facts clearly indicate that the transaction involved merely the transmission of the exact amount of money or lire to the particular bank designated in Italy. The money in the hands of the deceased was converted and embezzled by him, and immediately a situation arose which created a trust fund in his hands for the benefit of Grieco. Our Supreme Court in the case of Blair v. Sennott, 134 Ill. 78, in its opinion at page 87, says :

“Money of the principal in the hands of the agent is still the money of the principal, and the agent has no right to use it or pay it out for his own private purposes. While he has this money, he is not, technically, the creditor of his principal, but simply his trustee. (Mechem on Agency, sec. 780.) It is, in such case, therefore, always the legal presumption that the money in the hands of the agent is the identical money that he received, and he will not be heard to allege his embezzlement or breach of trust to escape a liability arising from that presumption. Mechem on Agency, sec. 785; Story on Agency, secs. 229, 230; Trustees v. McCormick, 41 Ill. 323; Cottom v. Holliday, 59 id. 176.”

We cannot say that much weight should be given to the directions on the back of the receipt issued by the deceased, as it appears, in the first place, that the transaction was a direct transaction involving the sending of the money to Italy and there could be no question of exchange that could arise; and further the instrument appears to' have been a blank form in general use referring to the deceased as a bank, when there is no evidence in the record to support the proposition that he was in any way complying with the ordinary rules of banking surrounding a corporation incorporated for the particular purpose of banking, nor with the requirements regulating such a business as required by the statutes.

For the reasons stated, we believe the money in question was a trust fund and could have been recovered, as such, from Melone immediately upon his failure to transmit it in accordance with the terms of the trust. Counsel for the defendant argues, however, that by reason of the death of Melone the trust thereupon fails to come within the provisions of the Administration Act when filed as a claim against the estate; that while the act itself provides that where a deceased has received money in trust for any purpose, nevertheless, this means only where it is in fact a technical trust and not an implied trust. Trusts in the law are resulting or constructive trusts, express or implied trusts, and we are unfamiliar with the so-called “technical trusts” except as we learn of them in the decisions of this State where it is attempted to create a technical trust for the purpose of distinguishing the statute in regard to the administration of estates. This court in the case of Witwer v. Ruth, 214 Ill. App. 477, says in its opinion at page 479:

“ ‘Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his own estate the amount thus received and not accounted for.’ Counsel for the Rippel estate contends that this classification applied to ‘technical trusts only.’ This observation we are unable to fathom. Trusts arise from the relationship of the parties either expressed of by implication from such relationship.”

The Supreme Court of this State has in several cases referred to the character of trusts indicated by section 70 of the Administration Act, Cahill’s St. ch. 3, ¶ 71, as “technical trusts,” and indicates in its opinion that such a trust is one that does not arise from implication or from a contract, but should be construed in a more restrictive sense. A careful reading of these cases, however, would show that it is the intention of the courts of this State, in claims of this character, not to permit trusts to arise under the Administration Act, Cahill’s St. ch. 3, where the transaction is an ordinary business transaction between principal and agent or persons occupying a business relationship. We are of the opinion that the facts in this case are such that it does not come within the meaning of the definition of “technical trusts” as applied by courts of this State for the following reasons: The transaction between the parties, as shown by the oral testimony and the instrument in writing, would create a situation by reason of which a trust was created which was more than a trust implied by contract. There was only one duty devolving upon the deceased, namely, to transmit the money in his hands which was given to him for the purpose of transmission and which involved no matter of discretion on the part of the deceased, nor any obligation or duties in that regard, except the one expressly required of him. Moreover, the money so intrusted to him was embezzled and fraudulently converted to his own use, and the deceased himself would have been estopped to deny a trust; and for the same reason his estate should be estopped to deny the trust. We find this distinction is recognized in the case of Svanoe v. Jurgens, 144 Ill. 507, in which case the court at some length attempts to define the terms “special” or “technical” trusts as distinguished from those which the law implies from a contract; and after a lengthy opinion, citing the cases dealing with this question in this State, at page 515, the court says:

“We agree with counsel for appellee, that an agent, who receives the money of his principal, holds the same in trust, and must be held strictly to the liability of a trustee as between himself and the man for whom he acts. (Blair v. Sennott, 134 Ill. 78, and authorities cited). But the trust in the present case is one which arises out of an ordinary agency, and therefore does not come within the meaning of the statute above quoted.”

We believe the distinction made in the case above cited is applicable to the case at bar. The facts in the case at bar show that it was not an ordinary transaction of agency but that Melone received the money of the claimant, in trust, for the specific purpose of transmission and not in the ordinary course of business, as in a transaction between principal and agent.

For the reasons stated in this opinion, the judgment of the circuit court is affirmed.

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    In re Estate of John V. Burke, Deceased, Appellant, v. Mary A. Sullivan, Claimant, Appellee.
    Gen. No. 31,886.
    1. Negotiable instruments — when plaintiff has burden to prove execution and delivery. A plea that the alleged maker of a note did not make and deliver it to the holder requires the holder to prove execution and delivery.
    2. Negotiable instruments — evidence making prima fade case. The holder of a note makes out a prima facie ease in an action on the note by proof that defendant’s decedent executed it and delivered it to the holder.
    3. Negotiable instruments — evidence of mental incapacity of maker as overcoming prima facie case. Evidence that the maker of a promissory note was of unsound mind at the time he executed and delivered it to the holder did not overcome the holder’s prima facie ease and require the holder to introduce evidence of the consideration, where the holder had no knowledge of any insanity prior to or at the time of the execution and delivery and there was no proceeding to declare the maker insane. i
    4. Insane persons — validity of note. A note is not necessarily void merely because it was made, executed and delivered by a person of unsound mind.

      ■ -5. Insane person — right to rely upon presumption of sanity. In the absence of a proceeding to declare an individual insane, persons dealing with such an individual have the right to rely upon the legal presumption that the person is sane and capable of transacting business.
    6. Insane person — knowledge of insanity as affecting validity of transaction. In the absence of a proceeding to declare an individual insane, a transaction with such a person is valid unless knowledge is brought home at or prior to the transaction that the person with whom the transaction is made is of unsound mind.
    7. Negotiable instruments — admissibility of evidence of insanity of maker. In an action at law on a note against the administrator of the maker, evidence was properly stricken out that the maker was of unsound mind at the time of the execution and delivery, there being no proceeding to declare 'the maker insane and the holder having no knowledge of any insanity of the maker at or before the execution and delivery of the note.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed January 18, 1928.
    Jacob Berg, and James C. O’Brien, for appellant; John Owen, of counsel.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This cause originated on a claim in the probate court,"based upon a promissory note signed by the deceased, John Y. Burke, in favor of the claimant, Mary A. Sullivan, for the sum of $50,000. The claim was allowed in the probate court and thereupon the administrator, Greenebaum Sons Bank & Trust Company, perfected their appeal to the circuit court of Cook county; and filed therein a certain plea, to the effect in substance, that the deceased, John Y. Burke did not make and deliver the note in question to the said Mary A. Sullivan. The cause came on to be heard in the circuit court before a jury, with the result that the jury found the issues in favor of the claimant and assessed her damages at the sum of $50,000, with interest in the further sum of $5,683. Judgment was entered on the verdict and from that judgment this appeal has been perfected.

Certain testimony was introduced by the estate of the deceased on the hearing before the trial court, and at the close of the evidence, on motion of counsel for claimant, this evidence was stricken out by the court, and this action of the court is the only question for our consideration.

The testimony shows and the jury so found, that the note in question was signed by the deceased in December, 1924, in the presence of a Mrs. Nellie Gregory and a David Simon, both of whom testified to that fact in the proceedings. The testimony further shows that the note in question, after having been signed, was, later on the same evening in December 1924, given to the claimant at her home in the city of Chicago.

By the filing of the plea it devolved upon the claimant to prove the execution and delivery of the note. This was done and there is no evidence in the record disputing this particular fact. The note itself imports consideration, and after the proof of the making and delivery, claimant had made out a prima facie case. The Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 44; Grimm v. Lienemann, 196 Ill. App, 620; Allen v. Estate of Allen, 217 Ill. App. 260.

The estate introduced no testimony on the question of consideration, nor did it introduce any evidence in contradiction of the execution and delivery of the note.. The only evidence introduced by the estate was certain evidence — as; already stated — bearing on the question- of the mental condition of. the deceased, at the time of the execution and delivery of - the note. It is argued by counsel for the estate that by the introduction of this testimony the prima facie case of the claimant was overcome and it became necessary for the claimant to thereupon introduce evidence of consideration. With this we cannot agree. In the first place, it was not the province of the court to decide, under the issues, when it became the duty of the claimant to prove consideration; and in the second place, if the question was left to the jury, with the record in this condition, it would have been impossible for the jury to pass upon the question, because, even though the deceased might have been of unsound mind at the time of the execution and delivery of the note, it nevertheless may have been given for a good consideration and would have been good under the law. The mere fact that a note is made, executed and delivered by a person of unsound mind, does not necessarily make the note void. Moreover, the note was given in December, 1924, and there is nothing in the testimony on behalf of the estate which shows that the deceased was incapable of transacting business prior to December of that year. In the absence of proceedings to declare an individual insane, persons dealing with such an individual have the right to rely upon the legal presumption that such individuals are sane and capable of transacting business. Persons dealing with such an individual, under such conditions, have the right to rely upon this legal presumption and their transactions are valid unless knowledge is brought home to them at or prior to the transaction that the person with whom the transaction is made is not of sound mind. There is no evidence in the record, whatever, that such knowledge was brought home to the claimant in this proceeding, prior to or at the time of the giving and the execution of the note. Walton v. Malcolm, 264 Ill. 389. If the administrator of the estate was of the opinion .that the note had been given by the deceased at a time when he was non compos mentis, the proper procedure would have been for the administrator to have filed a proper bill in a court of chancery, setting up these facts and offering to return what, if anything, had been received by the deceased as a consideration for the note, or charging specifically that nothing had been received by the deceased; and asking to have the note cancelled and the claimant restrained from transferring or attempting to negotiate the same. The case of Walton v. Malcolm, supra, we believe is decisive of the case at bar. In that case it appears that the plaintiff, Walton, brought an action of ejectment in the circuit court of Coles county against the heirs of the defendant. The plaintiff claimed possession under a deed executed by the deceased under whom the heirs then in possession claimed. The heirs attempted to set up in defense of this ejectment action, that the grantor to the plaintiff was of unsound mind at the time that he executed the deed. Counsel for plaintiff in error contended that the deeds could not be attacked by evidence as to the lack of competency to execute them, and that the only remedy, if there was a remedy, was an action in equity. The court in its opinion holds that the legal presumption is that persons of mature age are sane until found otherwise, and further, that a contract made with a lunatic, in good faith, and without any advantage taken of his condition, and for his own benefit, is valid both in equity and at law; and that under such circumstances even a court in equity would not set aside such a transaction. The court in its opinion at pages 396-397 says:

"The reasons usually urged why a court of law, in ejectment proceedings, should not permit evidence of the person’s mental incompetency is, that the interests of all the parties cannot be adjudicated in that proceeding as they can be adjusted and protected in a proceeding in equity. In an ejectment proceeding the court can only find for the plaintiff or the defendant. It cannot place the parties in their original position by settling the question of rents and profits or by inquiring into the question of consideration paid. A court of equity can do all these things and see that complete justice is done between the parties, according to the circumstances of the case.
“Counsel for the defendants in error insist that there is no question of consideration in this case. The deeds recite consideration, and that recital is prima facie evidence that the grantor received the amount named. (Howell v. Moores, 127 Ill. 67; see, also, Redmond v. Cass, 226 id. 120.)”

We are of the opinion that the learned trial judge did not err in striking the testimony as to the mental condition of the deceased from the record and submitting the cause to the jury on the only competent testimony there was for their consideration.

We have examined the cases cited by counsel for the estate and find that in most instances they are cases which have arisen on a bill or cross-bill in chancery or cases where the defense has been made by a minor and which of course would not be governed by the same rules of procedure as would arise under facts such as are involved in this case.

For the reasons stated in this opinion, the judgment of the circuit court will be affirmed.

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.


text:
    Harry Buckley, Appellee, v. Edgewater Beach Hotel Company et al., on Appeal of Edgewater Beach Hotel Company, Appellant.
    Gen. No. 31,929.
    1. Master, and servant — right of hotel guest to maintain joint action against hotel and, its officer for assault by officer. A hotel guest cannot maintain a joint action on the ease against the hotel corporation and its officer, who was employed to maintain order, for an assault committed upon him by the officer, since the liability of the corporation is predicated solely upon the doctrine of respondeat superior.

    2. '. Agency — right to maintain joint action against principal and agent for tort of agent. A principal cannot be joined in an action on the ease with the agent for a tort committed by the agent where the principal is liable solely upon the doctrine of respondeat superior; but the principal may be joined with the agent where he is liable on the theory of respondeat superior, provided he is further liable as a joint tort feaser by reason of some direct action or participation by him as principal.
    3. Master and servant — right to maintain, joint action against master and servant for tort of servant. A master and servant cannot be joined in an action on the case for a tort by the servant where the liability of the master is predicated solely upon the doctrine of respondeat superior, although either may be sued separately.
    4. Master and servant — sufficiency of evidence that hotel acquiesced in assault on guest by servant. The mere fact that a hotel officer, who was employed to maintain order, was retained in his employment as a servant after his assault upon a guest is not sufficient to show that the hotel company acquiesced in the assault.
    Taylor, P. J., dissents.
    Appeal by defendant from- the Circuit Court of Cook county; the Hon. Harry .M. Fisher, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed January 18, 1928.
    Brundage, Landon & Holt and Foreman, Blhford, Steele & Schultz, for appellant; Benson Landon, of counsel.
    Litsinger, Healy & Reid, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The facts in this case show that Harry Buckley, plaintiff below, was, on September 30, 1924, a guest at the Edgewater Beach Hotel, located in the city of Chicago, and had been living there for six or seven, weeks prior thereto. It appears that on the evening in question the plaintiff had dinner with his mother, who was also a guest at the hotel, and in company with one Mr. Snyder and a Miss Stix, remained in the lobby of the hotel until about 12:00 o’clock, at which time the mother retired, and the plaintiff went to a waffle shop nearby with Mr. Snyder and Miss Stix. They returned to the hotel about an hour later. It is further shown that the defendant corporation, Edgewater Beach Hotel Company, employed a number of people in the management and operation of its hotel, and, among others, employed James McAlvany, one of the defendants herein, for the purpose of maintaining peace and quiet throughout the hotel, and to have charge of the bellboys and porters. He was at one time a police officer for the city of Chicago, but on the date in question had no commission to act as a police officer. He had, however, been instructed by the hotel management, particularly, to see that no liquor was used upon the premises and that all persons thereon acted in an orderly and proper manner, and if they did not, he had instructions to eject them. Among all other duties he was to take all necessary precautions on behalf of the corporation, to protect its guests. The defendant below Pierse R. Lynch appears from the testimony to have been employed by the hotel company in the capacity of house service man and was acting as an assistant to McAlvany. On the trial of this cause Lynch did not appear, nor was he represented by counsel, and he’ has ■ perfected no appeal in this case. It will not be necessary to refer to him further in this opinion. It appears from the testimony that Buckley and McAlvany were not on very good terms. On the night in question, when he returned from the waffle shop, Buckley, upon entering the hotel, spoke to McAlvany, and thereupon an argument took place, which increased until it culminated in what appears to have been a free-for-all fight between Buckley on the one side and McAlvany and his assistant on the other. As a result, the police department was notified and the parties were taken to the police station, where a warrant was sworn out against Buckley charging him with disorderly conduct. The warrant was signed by McAlvany. On the trial of this cause the plaintiff was discharged and this action was brought against the defendants below, based on the ground of malicious assault and false imprisonment. The action was an action of trespass on the case and the trial resulted in a verdict of the jury, finding the defendants guilty and assessing the plaintiff’s damages at the sum of $10,000. There was a remittitur by the plaintiff of $5,000 and judgment was thereupon entered on the verdict in the sum of $5,000.

It is insisted on behalf of appellant, Edgewater Beach Hotel Company, that its liability, if any, was predicated solely on the fact that McAlvany was its servant, and that the corporation was liable, if at all, solely on the doctrine, of respondeat superior; and that this being the fact, it follows as a matter of law that the plaintiff could not maintain a joint action against the corporation and its servants, and for that reason this cause should be reversed.

It is insisted by counsel for plaintiff, first, that the right exists at law to sue a master and servant jointly, even though the master is liable only on the ground of respondeat superior; second, that the master is liable as a joint tortfeasor because of the fact that the servant was employed by it for the particular duty that was performed by him in the case at bar; and third, that the master had acquiesced and approved of the conduct of the servant by continuing to retain him in its employ. The question of whether an action of case would lie against a master and servant jointly for the injury sustained by reason of the negligence of the servant in the course of his employment was considered in the case of Johnson v. Magnuson, 68 Ill. App. 448, and it was there held that the master and servant might be joined. The question again came on for consideration before this court in the case of Berghoff Brewing Co. v. Przbylski, 82 Ill. App. 361. In that case the court stated in its opinion that its attention had been called to the case of Johnson v. Mdgnuson, supra, and that it refused to follow that opinion, and for that reason discussed the cases fully and at length. In summing up, on page 374 of its opinion the court said:

“A judgment cannot be sustained against the master and servant jointly in a case where the master is liable only upon the doctrine of respondeat superior. The act of a servant is not the act of the 'master unless the act complained of is directed or adopted by the master. The master is not liable as' if he had done the act himself, but because it is the policy of the law to protect the public by making him liable for the negligent acts of his servant, while the servant is acting within the scope of his' employment. It is believed that this has been most generally held to be the law since it was so clearly stated by Lord Kenyon, C. J., in McManus v. Crickett, 1 East, 106.”

The question was also considered in the case of Republic Iron & Steel Co. v. Lee, 227 Ill. 246. In that case, however, the court apparently held that thé company and its agent, Worker, were joint tort-feasors, and that the defendant, Republic Iron and Steel Company, was not liable solely on the doctrine of respondeat superior. The court in its opinion expressly stated that the cases based on the doctrine of respon deat superior cited were not applicable to that particular case. At page 253, the court says:

“We do not consider those cases applicable here. The declaration charged that Worker and Peterson gave appellee a negligent order and that his compliance therewith resulted in the accident. Worker stood to appellee in the relation of a vice-principal. He, personally and individually, owed to appellee the duty not to give him any order negligent in character. The same duty rested upon the appellant. Consequently, if a negligent order was given by Worker it was an affirmative wrong done by him in violation of a common duty owed by appellant and Worker to appellee and constituted Worker and appellant joint tort feasors, and they were therefore properly joined.”

Our attention has also been called, by counsel for the plaintiff, to the case of Van Meter v. Gurney, 240 Ill. App. 165. The facts in this case show that one Michael O’Rourke was killed by reason of being struck by an automobile which was being driven by one De Forrest ; that one, Gurney, was a captain in the police department of the city of Chicago and De Forrest was a patrolman in the department designated as a chauffeur and assigned to drive for Gurney. That at the time of the accident Gurney was riding in the car which was being driven by De Forrest. Judgment in that case was obtained against the parties jointly, in the trial court, and the judgment was affirmed in this court; but the court in its opinion expressly distinguishes that case from the cases where the principal is held on the ground of respondeat superior. At page 183, the court says:

“We are of the opinion that the evidence is sufficient to support a finding of the jury that Gurney and De Forrest were joint tort feasors, and further that the evidence is sufficient to hold Gurney liable on the doctrine of respondeat superior. However, as the declaration states a cause of action on the theory of joint tort feasorship only, and not a cause of action on the doctrine of master and servant, or in other words, respondeat superior, G-urney can be held liable only on the ground of tort feasorship.”

Furthermore, the facts in that case disclose that the principal was present at the time of the accident and in control and management of the car. The final result of the analysis of the case of Van Meter v. Gurney, supra, is that the principal cannot be joined with the agent where the principal is liable solely upon the doctrine of respondeat superior-, but that the principal may be joined with the agent where he is liable on the theory of respondeat superior, provided that he is further liable as a joint tort-feasor by reason of some direct action or participation by him, as principal. This court again, in the case of McHale v. Mc-Quigg, 236 Ill. App. 295, clearly recognizes the present rule to be that the principal and agent cannot be joined where the principal is liable solely upon the doctrine of respondeat superior. This court in the case of Wisniewski v. Michigan Cent. R. Co., 218 Ill. App. 636, had occasion to pass on this question, upon a set of facts very similar to the case at bar. It appears in that case that the defendant, Michigan Central Railroad, had in its employ one McCary, whose duty it was to guard the property of the company and to make arrests for thefts committed thereon. It appears further that his duties were that of a police officer of the company, employed for a purpose somewhat similar to that for which McAlvany was employed in the case at bar. The suit was brought against the Michigan Central Railroad Company and McCary jointly, charging thát they were guilty of assault and false arrest. In discussing the Wisniewslci case, the court in its opinion says:

“If the testimony presented on behalf of the plaintiff be true, then there can be no doubt that an unlawful assault was committed upon plaintiff and that he was unlawfully detained and imprisoned.”

The court again in its opinion says:

“The evidence does not disclose that the alleged tort was jointly committed by the defendants. The Bail-road Company’s responsibility, if any, results from the rule that the master is responsible for tortious acts of a servant committed within the scope of the servant’s employment. It is not based upon any theory of direct wrong-doing on the part of the master, and he cannot be jointly sued with the servant for damages resulting from a trespass committed by the servant for the reason that the master’s liability results solely from a contractual relationship which he bears toward the servant.”

In the case at bar, it is admitted that McAlvany was employed as an officer, for the purpose of protecting the interests of the hotel company, and it cannot be assumed that he was employed for the purpose of intentionally inflicting injury upon anyone, but that, in the course of his duty, he was expected to do those things which an officer occupying such a position as he did with the hotel company, would be ordinarily expected to do. While the rule is different in some jurisdictions, nevertheless, there is a well-defined rule which has been adopted in the Federal Court and in a number of states, to the effect that the servant cannot be joined with the master, where the sole liability of the master is based upon the doctrine of respondeat superior. After a consideration of the cases, we must come to the conclusion that this rule has been well settled in this jurisdiction, regardless of what the rule may be elsewhere.

As to the argument that the servant in this case was employed for the particular purpose of using force and therefore he was expressly authorized to do the thing charged by the plaintiff to have been done, there is no evidence that he was employed for the particular purpose of assaulting Buckley, and from the facts in evidence we can go no further than to conclude that he was employed for the purposes for which an officer would ordinarily be employed in discharging the duties of such an officer in and upon the premises of a hotel, and with full regard for the rights of those on the premises. It is insisted, however, that the defendant hotel company acquiesced in the assault, by reason of its retention of McAlvany as a servant of the company for a period of time after the occurrence in question. It is true that a principal, while not present, may ratify the acts of his servant so as to become personally liable. In our opinion there must be some such affirmative act as would indicate an expressed intention to concur in the acts of the servant. We do not believe that the mere retention of a servant alone would be sufficient. As a matter of fact, if the servant had been discharged immediately after the cause of action accrued to the plaintiff it would be argued, and with force, that it was a recognition by the defendant of the illegality of the act of its servant, and would amount to a practical admission of liability on the part of the corporation. Moreover, the corporation in this case denies that the servant was responsible, and asserts that the plaintiff was to blame for the occurrence in question, and that in its opinion he was not entitled to recover. This opinion may have been held by the company in good faith from the reports which it had from its agent, and others, and it could not be said, as a matter of law, that it acquiesced in the act of its agent by retaining bim in its employment, unless it was specifically brought home to it that the servant was at fault, and it then persisted in retaining him in spite of such information, which could be held to show that it was clearly the fault of the servant.

This court in the case of Neville v. Chicago & A. R. Co., 210 Ill. App. 168, says:

“While it is alleged in the declaration that the defendant company had ratified and acquiesced in the alleged wrongful conduct of the defendant Conway, there is no proof in the record to sustain this averment. The evidence shows that Conway continued in the employ of defendant after the occurrence complained of by the plaintiff, but this fact in and of itself was not sufficient to charge the defendant with knowledge of or acquiescence in whatever wrongful acts, if any, may have been committed by him.”

In that case the facts showed that one Conway, employed by the defendant company as a watchman, had assaulted the plaintiff, and the suit was brought against the Chicago & Alton Railroad Company and Conway, jointly. After verdict it was dismissed as to Conway. From a -review of the authorities in this state, we are of the opinion that the rule is well defined that the master and servant cannot be joined in an action on a case where the liability of the master is predicated solely upon the doctrine of respondeat superior. Either may be sued separately, but not jointly. • „

For the reasons given in this opinion, the judgment of the circuit court will be reversed and the cause remanded.

Judgment reversed and rema/nded.

Holdom, J.,- concurs.

Mr. Presiding Justice Taylor dissenting: I am not convinced that it is the law in this State that where a paying guest of a hotel company is illegally and brutally assaulted by one of its chief employees, within the confines of the hotel, the guest is not entitled to sue them both at law in one suit as joint tort feasors.

The hotel company is a going concern only by and through the acts of its officers and .employees; and they are not only the representatives of the hotel company, but, as far as the guest is concerned, they are, it might be said, the company incarnate.

Where, as here, it is practically admitted that every blow struck was a tort committed by each, that is, the hotel company and McAlvany, why require that each should be sued in a separate action?


author: Mr. Presiding Justice Barry

text:
    Roesch Enamel Range Company et al., Defendants in Error, v. Edward Carbine, Plaintiff in Error.
    1. Injunctions — necessity that order he plain. An injunction should be so worded that the party enjoined may know from a reading of the order what he is restrained from doing.
    2. Trade unions — validity of picketing. All picketing is not unlawful.
    3. Contempt — violation of injunction against picketing. Only persons who resorted to, or who aided, abetted or assisted in the commission of acts of violence should be held in contempt of court for violating an injunction against unlawful picketing, where an ordinary layman might reasonably understand from the terms of the injunction that he would not be violating it unless he committed' acts of violence.
    4. Contempt — assault as violation of injunction against picketing. A person who, after following in an automobile a workman driving others home, strikes the workman, and others accompanying the striker in their automobiles, who aid and abet him by their presence, were guilty of contempt of court in violating an injunction against unlawful picketing, where an ordinary layman might reasonably understand from the terms of the injunction that he would be violating it by committing acts of violence.
    5. Contempt — assamlt hy group as violation of injunction against picketing. Where four persons accost a workman on a street and one of them strikes him, although it is not shown which one struck the blow, all were guilty of contempt of court in violating an injunction against unlawful picketing, where an ordinary layman might reasonably -understand from the terms of the injunction that' he would be violating it by committing acts of violence.
    Error by defendant to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1927.
    Judgments as to part of defendants affirmed and as to part reversed.
    Opinion filed January 20, 1928.

      James O. Miller, for plaintiff in error.
    Farmer & Klingel, for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error and 27 others were found guilty of contempt of court for the violation of an injunction previously procured against them by defendants in error. The cases were consolidated and heard on the same briefs and arguments and this opinion will apply to each case.

Defendants in error procured a temporary injunction against these parties restraining them from unlawfully picketing the complainants’ premises and from unlawfully doing various specified acts. An injunction should be so worded that the party enjoined may know from a reading of the order what he is restrained from doing. Congress adopted the Clayton Act on October 15, 1914, and our legislature adopted an act relating to disputes concerning terms and conditions of employment which became effective July 1, 1925, Cahill’s St. ch. 22, ¶ 58. Each of these acts expressly prohibited the issuance of a restraining order or injunction in certain enumerated cases. Some of the things therein referred to would ordinarily be regarded as falling within the term “picketing.” The acts indicate that congress and the legislature were of the opinion that there may be such a thing as peaceful and lawful picketing. In American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, the court used language which seems to recognize the fact that all picketing is not unlawful. The court said: “Each case must turn on its own circumstances. It is a case for the flexible remedial power of a court of equity which may try one mode of restraint, and, if it fails or proves to be too drastic, may change it. We think that the strikers and their sympathizers engaged in the economic struggle should be limited to one representative for each point of ingress or egress in the plant or place of business, and that all others be enjoined from congregating or loitering at the plant or in the neighboring streets by which access is had to the plant; that such representatives should have the right of observation, communication and persuasion, but with special admonition that their communication, arguments and appeals shall not be abusive, libelous or threatening, and that they shall not approach individuals together but singly, and shall not in their single efforts at communication or persuasion, obstruct an unwilling listener by importunate following or dogging his steps. This is not laid down as a rigid rule, but only as one which should apply to this case under the circumstances disclosed by the evidence, and which may be varied in other cases. * ® * The purpose should be to prevent the inevitable intimidation of the presence of groups of pickets, but to allow missionaries.”

In view of the statutes aforesaid and the decision of the Supreme Court of the United States, we are of the opinion that the ordinary layman might reasonably understand that as he was enjoined from unlawful picketing he would not be acting in violation of the terms of the injunction unless he committed acts of violence. From the language of the injunction he was to determine, at his peril, what acts would be unlawful. We are of the opinion, in view of the wording of the injunction, that none of the plaintiffs in error should be held in contempt of court other than those who resorted to, or who aided, abetted or assisted in the commission of acts of violence.

Walter Schaffer and some others were living atMascoutah and were working for defendants in error at the time of and during the strike. Schaffer had a car and was taking some of his fellow-workmen home at the close of their day’s work. James Paxson, Paul Seibert, William Keim, Lester Mahan, Bryan Becker, Morris Bade and Edward Grandcolas were in other cars and followed Schaffer’s car for some distance beyond the city limits of Belleville and finally turned in front of the Schaffer car and stopped it. Schaffer wanted to drive on but was not permitted. Paxson got out of the car in which he was riding, jumped on the running-board of Schaffer’s car and then and there assaulted Schaffer. While Paxson was the only one who struck Schaffer, yet the others above named were then and there present aiding and abetting and made no effort to prevent the assault. We are satisfied that the wording of the injunction should not afford these men an excuse for their conduct on that occasion and the judgments in their cases will be affirmed.

Boy McGaw and Lawrence Tost were employed in the plant of Boeseh Enamel Company and had left the plant at the close of their day’s work. They were accosted on the street by Charles Miller, Paul Seibert, George Hemmer and Tony Hemmer. On that occasion one of the four persons last mentioned struck McGaw in the eye. Tony Hemmer was the only one of the plaintiffs in error who testified to that occurrence. He testified that some one of his crowd hit McGaw but he didn’t know which one; that he would have done it himself if the other party had not. He says that Mc-Gaw called them a vile name and that was the reason he was struck. McGaw says that at the time he was struck he had not said anything to them. We would not be warranted in reversing the judgments against Charles Miller, Paul Seibert, George Hemmer and Tony Hemmer. It is evident that one of them struck the blow and .that the others were present aiding and abetting and that the wording of the injunction would not excuse such conduct.

The court found that after the issuance of the injunction, bricks and stones were thrown through the windows of three or four of the homes of employees of defendants in error; that these occurrences were at night and that the persons who committed the acts were unknown. The petition for citation did not aver, nor did the court find, that all of these plaintiffs in error were engaged in a conspiracy. The wording of the decree is not such as to indicate that the court intended to hold any of these plaintiffs in error responsible for the throwing of bricks and stones as aforesaid.

' Our conclusion is that the judgments against James Paxson, Paul Seibert, William Keim, Lester Mahan, Bryan Becker, Morris Bade, Edward Grandcolas, Charles Miller, George ITemmer and Tony Hemmer should be and they are hereby affirmed.

We find no evidence in the record tending to show that any of the other plaintiffs in error were guilty of any violence or in aiding or abetting the commission of any act of violence.

The judgments against Edward Carbine, Frank Riesenberger, Henry Dawson, Frances Schultz, Eugene Finklein, Martha Schultz, Lucinda Keim, Lester Groom, Eugene Schmidt, Edward Hottenroth, Peter Diehl, William Heeley, Esther Keim, George Klincar, Irene McEwen, Paul Noll, Henry Stiffler and Pierre Klotz are reversed.

Judgments as to part of defendants affirmed and as to part reversed.


text:
    Benton State Bank, Defendant in Error, v. R. Shad Bennett et al., Plaintiffs in Error.
    1. Appeal and error — duty to preserve in record evidence justifying decree. In a chancery suit it is incumbent upon the party in whose favor a decree granting affirmative relief is entered to preserve in the record the evidence justifying the decree.
    2. Appeal and error — insufficiency of finding to sustain decree. A general finding that all the material allegations in a bill in equity arc proved, and that the equities are with the complainant, will not sustain a decree granting affirmative relief where there is no finding of specific facts and the evidence is not preserved in the record by a certificate of evidence, the report of the master or the verdict of a jury.
    3. Appeal and error — presumption, as to depositions from recitals m decree. A reviewing court will not presume from a recital in a decree granting affirmative relief, to the effect that the trial court ordered the clerk to publish all depositions on file, that such depositions were sufficient to support the decree.
    4. Appeal and error — necessity of incorporating depositions in certificate of evidence. Depositions taken and filed in a chancery cause are a part of the record without being incorporated in a certificate of evidence.
    Error by defendant to the Circuit Court of Franklin county; the Hon. ,1. C. Keen, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed January 20, 1928.
    R. Shad Bennett, for plaintiffs in error.
    M. Pulverman and Hart & Hart, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Defendant in error procured a decree setting aside certain conveyances and subjecting the land to the payment of its judgments. The facts upon which the decree is based were not preserved in a master’s re-" port, a certificate of evidence, depositions or otherwise. The nearest approach to a preservation of the evidence is found in the following recital: “And now, on October 19, 1926, the same being another one of the judicial days of said September Term, A. D. 1926, of said Court, after having heard the evidence herein and arguments of counsel, and being fully advised in the premises, the Court finds that the Court has full and complete jurisdiction of the subject-matter of this proceeding and of the parties thereto in the amended bill herein, both complainant and defendants herein, and that the equities of'this cause are with the complainant, and that the complainant is entitled to the relief prayed for in its amended bill of complaint herein, and that the matters and things contained in the said amended bill of complaint herein are true as therein' stated.”

The law is well settled that in chancery it is incumbent upon the party in whose favor a decree granting affirmative relief is entered to preserve in the record the evidence justifying the decree, and the general finding that all the material allegations in the bill are proved, and that the equities are with the complainant will not sustain such a decree where there is no finding of specific facts and the evidence is not preserved in the record by a certificate of evidence, the report of the master in chancery or the verdict of a jury. Gengler v. Hooper, 324 Ill. 47; Feyerabend v. Feyerabend, 312 Ill. 559.

The decree also contains a recital to the effect that the court ordered the clerk to publish all depositions on file in the case. In the original transcript of the record no depositions were shown and defendant in error insisted that by reason of the said recital in the decree this court should presume that the depositions on file were sufficient to support the decree. Under section 81 of the Practice Act, Cahill’s St. ch. 110, ¶ 81, we ordered an additional transcript of the depositions to be filed in this court and the same was duly filed. Depositions taken and filed in a chancery cause are a part of the record without being incorporated in a certificate of evidence. The depositions in this cause, however, do not in any way tend to support the decree. Defendant in error having procured a decree for affirmative relief, should have preserved the evidence in some manner recognized by law and having failed, to do so there is no alternative and it is our duty to reverse and remand the cause.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Burton Waddell, Plaintiff in Error.
    1. Parent and child — nonsupport of child Tcept away by wife. A father cannot be said wilfully to neglect and refuse to support his minor child where his wife, without reasonable excuse, keeps the child away from him.
    2. Parent and child — nonsupport of child away from father’s home. A. father has a right to maintain his minor children in his own home, and cannot be compelled, against his will, to do so elsewhere, unless he had refused or failed to provide for them where he lives.
    3. Parent and child — criminal liability for nonsupport of child. A father is not criminally liable for not supporting a minor child in the absence of a demand for support, where his wife left him without reasonable cause and a child was born six months thereafter and he furnished some clothing, etc.
    4. Parent and child — criminal liability for nonsupport of child. It is an essential element of the crime of neglect or failure to support a minor child that the child was in destitute and necessitous circumstances.
    Error by defendant to the County Court of Payette county; the Hon. C. R. Torrence, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed.
    Opinion filed January 20, 1928.
    T. M. Guinn, for plaintiff in error.
    Will P. Welker, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The first count of the indictment charged that plaintiff in error did, on April 20, 1927, without reasonable cause, neglect and refuse to provide for the support and maintenance of Ethel Waddell, his wife, etc. The second count charged that he did, on the same day, without any lawful excuse, desert, neglect and refuse to provide for the support and maintenance of his minor child, then and there under eighteen years of age, in destitute and necessitous circumstances.

The jury found the plaintiff in error guilty under the second count and not guilty as to the first count. The parties were married December 13, 1924, and on March 2,1926, the wife left her home, without any reasonable cause, and went to live with her parents, where a child was born to her in September, 1926. Soon after the birth of the child plaintiff in error provided clothing, etc., to the amount of $17.50. No demands were made upon him for anything more in the way of support for the child but it was properly cared for in the home of the grandparents. While the wife had no funds or property of her own, yet there is no showing that the child was in destitute and necessitous circumstances.

In People v. Honaker, 281 Ill. 295, the court said:

“The statute makes it an offense to desert or neglect or refuse to provide for the support or maintenance of a child under the age of eighteen years, in destitute and necessitous circumstances. The defendant was - charged with that offense, but there was no evidence tending to prove him guilty of desertion, the fact being that the child was taken away by his wife. It is also an offense to neglect or refuse to provide for the support and maintenance of a wife who is in destitute and necessitous circumstances, and there was no evidence tending to prove that offense. The defendant provided a home for his wife and provided for her support and maintenance there, and there was no evidence, * * * that the defendant was called upon and refused to contribute to her support or the support of the child, although she was dependent for maintenance on her own family, where she had voluntarily gone. Even if there was ample justification for her leaving him, the statutory offense of which he was convicted was not proved.”

A wife -left her home without cause in October, 1919, and went to her parents’ home where a child was born to her in March, 1920. Thereafter she continued to live with her parents. The first count of the indictment charged that her husband, on or about May 20, 1920, refused and neglected to support and provide for his wife. The second count charged that on or about May 26, 1920, he abandoned his said child and neglected and refused to support and provide for the same. The court directed a verdict for the defendant under the first count and he was found guilty of the charge in the second count. The judgment was reversed and the court said: “There is no testimony that any specific demand for money was made on the defendant for the support or maintenance of the child, * * *. There is no testimony that the child needed additional shelter, clothing, a nurse, or anything else. * * * There is no evidence tending to show that any request was made of the defendant for money, apart from that which the prosecuting witness was to use for herself. There was no excuse for Mrs. Preston leaving her Kearney home. * * * Of course, the defendant owes the child the duty ‘to provide for’ it; but, to convict him, it was necessary to prove that it was in necessitous circumstances. ’ ’ Preston v. State, 106 Neb. 848, 184 N. W. 925.

One is not within the operation of the statute providing for the punishment of a father who refuses or neglects to furnish necessary food, clothing and lodging to his infant child, if the child is being supplied therewith as far as is necessary by the wife’s parents, to whose house she had taken the child upon separating from her husband, the child’s father. State v. Thornton, 232 Mo. 298, 134 S. W. 519. In that case the wife left her husband’s home in February, 1909, and took her only child with her and another child was born to her at her father’s home in September of the same year.

A man cannot be said wilfully to neglect and refuse to support his child where his wife, without reasonable excuse, keeps it away from him. A man has a right to maintain Ms cMldren in Ms own home, and cannot be compelled, against Ms will, to do so elsewhere, unless he had refused or failed to provide for them where he lives. Butler v. Commonwealth, 132 Va. 609, 110 S. E. 868. We are aware of the fact that some courts hold that a father may be held criminally liable for a neglect or refusal to provide for his child even though the child is properly cared for by its grandparents. In a large measure each case depends upon and must be decided in the light of the peculiar facts incident thereto. In the case at bar the jury found that the wife left her husband without any reasonable cause. About six months thereafter the cMld in question was born and the father furMshed some clothing, etc. No demand was made upon him for anything more. Under the circumstances of the case he should not be held criminally liable in the absence of a demand. Then, again, an essential element of the crime charged is that the child was in destitute 'and necessitous circumstances. We find no evidence in the record to support that averment. It is the duty of the father to support and provide for his child. That does not necessarily mean that he should turn the money over to his wife. He may, in some other way, make proper provision therefor. Preston v. State, supra. In any event it will be time enough to prosecute him criminally if he fails hereafter to maintain his child.

We have not overlooked the case of People v. Howell, 214 Ill. App. 372. In that case the parents were married on December 23, 1917, and lived together until September 7, 1918, when a separation occurred. A child was born on September 24, 1918, and the husband and father was indicted October 15, 1918. The indictment consisted of two counts, as in the case at bar. A jury was waived and the court found the defendant not guilty under the first count but found him guilty of neglecting to provide for the support of his child under the second count. There the indictment was returned about twenty days after the birth of the child and there was no showing that the father was requested to provide for its support, nor does it appear from the opinion that the child was in destitute or necessitous circumstances. We think the conclusion reached in that case is not in accord with People v. Honaker, supra, and the cases above cited. The judgment is reversed.

Reversed.


text:
    John Roberts et al., Appellants, v. Roy Perrine, Appellee.
    1. Replevin — filing of affidavit as beginning of suit. The filing of an. affidavit is the beginning of a suit in replevin.
    2. Replevin — when bond becomes part of files in the case. A replevin bond does not become a part of the records and files of the cause until the officer makes a return of the writ and the bonds.
    3. Pleading — supplying lost files. Before a court permits or requires lost files in a case to be supplied it should be satisfied that the original files have been lost.
    4. Dismissal and nonsuit — failure to file replevin bond. A motion to dismiss an actipn of replevin because of plaintiff’s failure to, file a bond comes too late after a. lapse of three years and after a plea.
    5. Damages — amount im, replevin for detention of goods. Under Cahill’s St. ch. 119, Ü 22, upon failure of the plaintiff in replevin to maintain the action, damages should not be awarded for the full value of the property and attorney’s fees in favor of one who merely had possession of the property as agent of a chattel mortgagee to foreclose.
    Appeal by plaintiffs from the City Court of West Frankfort; the Hon. Robert T. Cook, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed January 20, 1928.
    Moses Pulverman, for appellants.
    F. E. Trobaugh, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This action in replevin was begun on March 1, 1923. The issues were settled and the cause was set for hearing before a jury on October 25, 1926. When reached for trial the parties waived'a jury and the hearing was set for October 29, 1926. On that day appellee moved the court to dismiss the suit for the reason that appellants had not filed a replevin bond, and thereupon the court ruled appellants to file a good and sufficient replevin bond instanter, if no replevin bond was filed at the time of the commencement of the suit, and if a replevin bond was filed when the suit was begun, then appellants should supply the files with a new bond instanter. Thereupon counsel for appellants informed the court that a good and sufficient replevin bond was duly executed and presented to the coroner and that appellants had no further control over the said replevin bond and had no knowledge as to the disposition thereof by the coroner and that they refused to execute any other or further bond.

Appellants then moved the court to dismiss the cause. The bill of exceptions states that the court then examined the files and records of the case and found that the same did not show that any replevin bond was ever filed in the cause; that there is no replevin bond now on file and a part of the files in the cause. The court then granted the motion of appellee and entered an order dismissing the suit at the costs of appellants.

The court then proceeded to a hearing on the question of damages and found that the damages sustained by appellee amounted to $1,200 for which a judgment was rendered in favor of appellee.

The filing of an affidavit is the beginning of a suit in replevin. The statute does not provide for the filing of a bond with the clerk of the court before the issuance of the writ. After the writ is issued the officer who is to serve it is required to take a good and sufficient bond before he makes the levy. The statute, sections 10 and 11 of the Replevin Act, Cahill’s St. ch. 119, ¶ 10, 11, makes it the imperative duty of the officer to take a bond and return it with the writ into court. Section 12 of the same act, Cahill’s St. ch. 119, ¶ 12, provides that if the officer fails to take and return the bond, as required by the act, or returns an insufficient bond, he shall be liable to the party injured for all damages he may sustain by reason of such neglect which may be recovered in an action on the case, or by an action upon his official bond. It was so held in People v. Robinson, 89 Ill. 159.

The praecipe for the record filed by appellants in the case at bar called for a full and complete transcript of the record. The transcript filed herein purports to be a full, true and complete transcript in the cause. The affidavit for the writ appears therein but it fails to show that a writ of replevin was issued by the clerk of the court. The writ of replevin, the officer’s return thereon, or the replevin bond do not appear in the record. A replevin bond does not become a part of the record and files in the cause until the officer makes a return of the writ and the bond. After the delivery of the replevin bond to the officer and his acceptance thereof, the plaintiff has no further control over the same, nor is he responsible for the failure of the officer to perform his duty.

It will be observed that this cause was pending more than three years before it occurred to appellee to move for a dismissal on the ground that no replevin bond had been filed. The motion to dismiss a replevin suit for want of a sufficient affidavit comes too late after the defendant has appeared and pleaded. Frink v. Flanagan, 6 Ill. 35; Bishop v. American Preservers Co., 51 Ill. App. 417. An objection to the sufficiency of a replevin bond should be made at the return term of the writ and a motion to dismiss the suit on that ground cannot be entertained after the return term. 23 R. C. L. 894. The failure .to take a bond, or the talcing of an insufficient bond must be taken advantage of at the earliest opportunity, and by neglecting this and pleading, the opportunity is lost. 23 R. C. L. 894; 34 Cyc. 1449; Burrier v. Cunningham Piano Co., 135 Md. 135, 108 Atl. 492.

.When the court undertook to ascertain whether the bond had been filed the officer was not called to show what he had done with the writ or the bond. The court simply examined the files and records in the case. If the officer never returned the writ or bond they would not be found among the files or the records. We have no doubt that in a proper case the court may permit or require lost files to be supplied, but before doing so the court should be satisfied that the original files have been lost. Troy v. Beilley, 4 Ill. 259. In any event, appellee’s motion to dismiss the case came too late and the court erred in its ruling thereon.

The court also erred in the allowance of damages. Section 22 of the act, Cahill’s St. ch. 119, ¶ 22, provides that if the plaintiff in an action of replevin failed to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, etc. It will be observed that the only damages the court is permitted to allow, in a replevin suit, are damages for the use of the property from the time it was taken until a return thereof shall be made. In the case at bar the court allowed the full value of the property, $1,000, and $200 for attorney’s fees. Even if the court had properly dismissed the suit the damages allowed were without authority of law. A mortgagee of chattels having the right to possession only for the purposes of foreclosure cannot recover the value of their use if they are taken and detained from him. 23 R. C. L. 912. In the case at bar appellee had taken possession of the property in question as an agent of the mortgagee for the purpose of foreclosing the mortgage.

A replevin bond is for the protection of the defendant and the officer who is to levy the writ, and in case there is a breach of the terms of the bond the defendant in the replevin suit may bring a suit thereon and recover such damages and costs as may have been sustained in consequences of the breach of such condition, under section 25 of the act. In the case at bar the court entered a judgment against appellants for all that could have been recovered in an action upon the bond, whereas by virtue of section 22 of the act, appellee was not entitled to recover, in the replevin suit, any damages other than for the use of the property from the time it was taken until a return thereof.

For the reasons aforesaid the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Jesse R. Brown, Appellant, v. William H. Bauer et al., Appellees.
    Appeal and error- — when order dissolving temporary injunction is not appealable. An order dissolving a temporary injunction without an order dismissing the bill of complaint is not appealable, although a demurrer to the bill for want of equity was sustained.
    Appeal by plaintiff from the Circuit Court of Madison county; the Hon. Henry G-. Miller, Judge, presiding.
    Heard in this court at the October term, 1927,
    Appeal dismissed.
    Opinion filed January 20, 1928.

      Alvin C. Bohm, for appellant.
    J. B. Harris, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant procured a temporary injunction. Appellees moved to dissolve the injunction and also demurred to the hill for want of eqúity. The demurrer was sustained and the motion to dissolve the injunction was allowed. There was no order of the court dismissing the bill for want of equity.

An interlocutory order dissolving a temporary injunction without an order dismissing the bill, is not appealable. Warner v. Wagner, 201 Ill. App. 260. Where an appellant is willing to rest his case upon a motion to dissolve a temporary injunction, he must, when the order dissolving the injunction is made, move the court to dismiss the bill, thus obtaining a final order of dismissal from which an appeal or writ of error will lie, although neither would lie from a mere decision on demurrer or motion to dissolve. Springfield Gas & Electric Co. v. City of Springfield, 206 Ill. App. 575. Where the only relief sought by the bill is an injunction, the complainant upon the dissolution of the injunction, which is in effect a final order denying all relief, may dismiss his own bill and take an appeal. Williams v. Chicago Exhibition Co., 188 Ill. 19. The bill of complaint has never been dismissed and the ease is still pending in the trial court. No final appealable order having been entered, the appeal must be dismissed.

Appeal dismissed.


author: Mr. Justice Newhall

text:
    George Lancey, Defendant in Error, v. Charles Traubel, Individually and as Administrator of the Estate of Julia Emma Traubel, Deceased, Plaintiff in Error. Barbara Newton and Emile W. Eggmann, Defendants in Error.
    1. Vendors and purchasers — title and rights under contract to convey. Where land is sold by a contract to convey, as between the parties, the vendor is regarded in equity as trustee of the naked legal title for the benefit of the vendee, and the vendee as the trustee of the unpaid purchase money for the benefit of the vendor.
    2. Vendors and purchasers — rights of grantee of land received subject to contract of sale. Where a vendor, under contract to convey land, afterwards conveys the land to a third person subject to the contract, the second grantee is entitled to the purchase money outstanding on the contract, unless there is an agreement to the contrary.
    3. Vendors and purchasers — right to convey land subject to contract, of sale. A vendor, by having executed a contract of sale of his land, does not deprive himself of the right to convey the land subject to the contract.
    4. Trusts — equitable action as affected by existence of remedy at law. A court of equity is not necessarily deprived of jurisdiction of a suit involving a trust by the existence of a remedy at law.
    5. Saving questions por review — necessity of urging ■ adequacy of remedy at law. An objection that the complainant in an equitable action had an adequate remedy at law cannot be raised for the first time in the Appellate Courts
    6. Execution op instruments — delivery of deed in escrow to be delivered at grantor’s death. Where a grantor executes a deed and places it in the control of a third person to be delivered to the grantee, after the grantor’s death, reserving no right to recall or revoke the same,, such facts constitute a valid delivery; and the fact that. the. grantor, was entitled to the rents and use of the land, arid that the deed was not to be recorded until after the grantor’s death, does not affect the delivery.
    7. Estates op decedents — right to proceeds from contract for sale of land. Where land is sold by a contract of sale, the fact that - the vendor did not specifically assign the contract to the purchaser does not; operate to constitute the unpaid purchase money the personal property belonging to the administrator of the vendor’s estate, where.the vendor had conveyed the land, subject to the contract, by deed to a second grantee.

      Error by. defendant to the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. .
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    E. W. Eggmann, for plaintiff in error.
    O. L. Voigt and M. V. Joyce, for defendants in error.
   Mr. Justice Newhall

delivered the opinion of the court.

This is a writ of error prosecuted by Charles Traubel, individually and as administrator of the estate of Julia Emma Traubel, deceased, to reverse a decree of the city court of East St. Louis, confirming the title of George Lancey, defendant in error, to certain real estate, and directing certain payments to be made by the defendants to complainant in the court below.

George Lancey, as complainant, filed a bill in chancery against Charles Traubel, Barbara Newton and Emile W. Eggmann. Later, Charles Traubel, as administrator of the estate of Julia Emma Traubel, deceased, by leave of court, was made party defendant.

The bill alleges that one Julia Garrison, being the owner of certain described real estate, made a deed of the same to complainant, and later delivered the same to a third person, in escrow, to be delivered to him after the death of the grantor; that, after the death of the grantor, the deed was delivered by the escrow agent to the complainant; that the grantor, prior to the deposit of said deed in escrow, had made an instalment contract of sale of the property to the defendant, Barbara Newton, and at the death of the grantor there was due $436. t

The bill prayed for an accounting, and that fee title be confirmed in complainant, subject to said contract. Answers were filed and a cross-bill by Charles Traubel and Barbara Newton seeking to remove the deed- as a cloud on their title, as being fraudulently made without consideration. Proofs were heard before the court, and a decree entered according to the prayer of the bill, dismissing the cross-bill for want of equity.

The evidence shows that on April 22, 1924, Julia Garrison married the plaintiff in error, Charles Traubel, and lived with him about five months, when she separated from him and lived alone until her death on December 28, 1924; that on March 6, 1922, Julia Garrison and her then husband executed a deed to George Laneey; that in April, 1923, this deed was delivered to Etta May Schmulbach, sister of the grantee and niece of the grantor, with instructions to deliver the same to George Laneey after the death of the grantor; that the deed was delivered by the grantee’s sister to him after the grantor’s death and placed on record.

The evidence further shows that on March 8, 1923, Julia Garrison sold' said real estate to Barbara Newton, and executed a bond for deed providing for the payment of monthly instalments of $12, and, at the time of the death of Julia Garrison, there was a balance unpaid on the contract of $436, the vendee having-paid, in the lifetime of Julia Garrison, the sum of $364. After the death of Julia Garrison Traubel, her surviving husband, Charles Traubel, collected from Barbara Newton on said contract the sum of $264, and she refused to pay to complainant any monies on said contract.

Plaintiff in error raises two questions upon this record. First, that the complainant has an adequate remedy at law; second, that the decree is not supported by the greater weight of the evidence.

The bill alleges facts showing that Barbara Newton, as vendee in a contract of sale, holds unpaid purchase monies as trustee for the use of the vendor or her lawful grantee. As between the vendor and the vendee, equity regards the vendee as the owner of the land, and the vendor as the owner of the purchase money. The vendor is regarded as trustee of the naked legal title for the benefit of the vendee, and the vendee as the trustee of the purchase money for the benefit of the vendor. (Knights v. Knights, 300 Ill. 618.)

Where a vendor, under contract to convey land, afterwards conveys the land to a third person, subject to the contract, the second grantee is entitled to the purchase money outstanding on the contract, unless there is an agreement to the contrary. (39 Cyc. 1664; D’Wolf v. Pratt, 42 Ill. 198; Steele v. Biggs, 22 Ill. 643.)

The vendor, by having -executed a contract of sale, does not deprive himself of the right to convey the land subject to the contract. (39 Cyc. 1663.)

Where a trust relation exists between the parties, and the duty rests upon the defendant to render an account, a suit in equity for accounting is proper, and, where a trust is involved, a court of equity is not necessarily deprived of jurisdiction by the existence of a remedy at law. (People v. Bordeaux, 242 Ill. 327; Dorenkamp v. Dorenkamp, 109 Ill. App. 536.)

The objection that complainant had an adequate remedy at law is raised for the first time in this court, and, where, as here, the subject matter is not. wholly foreign to the jurisdiction of equity, the defendant, by not objecting in apt time, waives his right to now question the jurisdiction of the trial court. (Comstock v. Henneberry, 66 Ill. 212; Village of Vermont v. Miller, 161 Ill. 210; McIntyre v. McIntyre, 287 Ill. 544.)

The testimony in the record on behalf of complainant is not seriously disputed as to the main facts, but counsel seek to draw conclusions which are not capable of being sustained when carefully' analyzed.

The evidence of Etta May Schmulbach as to the deposit of the deed in question with her by the grantor for delivery to the grantee after the death of the grantor is undenied. She states that she received the deed with instructions to keep the same in her deposit box and deliver the same to complainant after her death; that she wanted to be sure he would have the place after her death, and that he was to have the payments, and that she (Mrs. Garrison) told her that she had sold the property under a contract.

Where a grantor executes a deed and places it in the control of a third party to be delivered to the grantee after the grantor’s death, reserving no right to recall or revoke the same, such facts constitute a valid delivery; and the fact that the grantor was entitled to the rents and use of the land, and that the deed was not to be delivered or recorded until after the death of the grantor, does not affect the delivery. (Kirkwood v. Smith, 212 Ill. 395; Bogan v. Swearingen, 199 Ill. 454; Kelly v. Parker, 181 Ill. 49.)

It is contended that, because Mrs. Garrison did not specifically assign the contract of sale to Mrs. Newton, the same constituted personal property belonging to the administrator of Mrs. Garrison’s estate, held for the purpose of paying debts and making distribution according to the law of descent, and the case of Hayne v. Fenton, 321 Ill. 448, is cited in support of counsel’s claim.

In this case the court said: “It is well settled that the proceeds due upon a contract for the sale of real estate made by the vendor during life, no deed having been executed, are a part of his personal estate.” But in the case at bar a deed was executed by the grantor in her lifetime, the legal effect of which was to vest in the grantee the right to the unpaid purchase money due" at the time of the death of grantor. (D’Wolf v. Pratt, supra; Steele v. Biggs, supra.)

Counsel contend that the evidence shows that Mrs. Garrison had executed a deed to Barbara Newton, which had become lost, but, after careful consideration of all the testimony, we find there is no substantial evidence which sustains counsel in this claim.

For the reasons above stated, we are of the opinion that the decree of the court below should be affirmed, which is accordingly done.

Decree affirmed.


text:
    Ruth O. Munden, Appellee, v. East St. Louis Light & Power Company, Appellant.
    1. Negligence — when (Tweeted verdict proper. The jury in an action for negligence should be directed to return a verdict for the defendant where there is no conflict in the evidence and the court can clearly see that the injury was the result of the negligence of the person injured.
    2. Negligence — contributory negligence im, not avoiding Tcnown danger. A person knowingly exposing himself to danger cannot recover for an injury which he might have avoided by the use of reasonable precaution.
    3. Negligence — liability for unforeseen consequences. A person is liable for all of the consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and is, therefore, under no moral obligation to take them into consideration.
    4. Negligence — failure of sales demonstrator to release housewife’s fingers from electric wringing machine. A sales demonstrator is not negligent in not promptly releasing the fingers of a housewife from the revolving rolls of an electric wringing machine in her home, which fingers were caught upon her placing them on the rolls to inspect the same without warning of her intention and with nothing in. her conduct or speech which would suggest or require warning or watching, the salesman being engaged nearby in folding a rug for use in the machine.

      5. Negligence — want of care of housewife placing fingers on rolls of electric wringing machine. A housewife placing her fingers on the revolving rolls of an electric wringing machine to inspect the same in dim light during a sales demonstration in her home, and who knew what function the wringer was performing and that the motor was running and the rolls operating a short time prior to her action, is injured by her own want of ordinary care.
    Appeal by defendant from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed with finding, of facts.
    Opinion filed January 20, 1928.

      McGlynn & McGlynn, for appellant.
    Farthing & Farthing, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a judgment of the city court of East St. Louis rendered against appellant for the sum of $1,000 for personal injury suffered by appellee.

The declaration charged that appellant so carelessly, negligently and improperly managed, operated and used a certain electric driven wringer, attached to a washing machine, that appellee, while using due care and diligence for her safety, caught her hand in said wringer and injured the same.

Plea of general issue was filed and, upon trial before a jury, a verdict was rendered in the sum of $1,250, and, upon motion for a new trial, the court required a remittitur of $250, and judgment was entered for $1,000.

Appellee, 32 years of age, was living with her husband at East St. Louis, Illinois. The injury to appellee occurred in the basement of her home. Appellant sent its agent, Mr. Bahr, to the home of appellee for the purpose of demonstrating to appellee a used electric washing machine and wringer for the purpose of trying to make a sale thereof to appellee.

Prior to the accident the electric current had been turned on, and the wringer attachment was being operated by an electric motor. The wringer consisted of two rubber rolls mounted on an iron shaft, and by means of a lever the rolls could be operated in either direction. Appellee furnished Bahr with a rag rug for the purpose of demonstrating the ability of the wringer to take large objects backward and forward through the rolls, while the same were being turned by the electric motor.

During the demonstration of the machine, Bahr was standing close to the machine, operating the various levers thereon, and explaining the same to appellee, who was sitting on a bench about 10 feet from the machine. Just prior to the injury, Bahr had drawn the rug through the rolls of the wringer, and was in the act of folding the same for the purpose of running it again through the revolving rolls, when appellee arose from the bench, on which she was sitting, walked over to the wringer, and stuck her finger on the rolls, which immediately pulled it through, causing a serious injury thereto.

Appellee testified that, while she was sitting on a bench observing Bahr passing the rug backward and forward through the rolls of the wringer, she noticed that the rug caught and would not go through; that she thought there was a hole in the rubber roll, or a spot two or three inches wide, and she immediately, without saying anything to Bahr, who was standing on the opposite side of the machine, walked over to it, placed her index finger on the roll, and that it was jerked into the wringer; that she screamed, and her husband, who was some distance away in the basement, came over and released the wringer; that the accident occurred about nine o’clock in the morning, in July, and there was not sufficient light in the basement for her to determine whether the rolls were actually moving; that she had observed Bahr manipulate the levers to reverse the operation of the rollers while putting the rug through; that she knew just before she walked to the machine that -the rolls were operating in a direction toward Bahr; that Bahr had explained how the wringer could be reversed on the vertical shaft that it was fastened to, and she knew how to turn the current on and off from the electric motor from what Bahr told her; that she deliberately put her finger on the rolls for the purpose of determining the cause of the dark spot; that, before doing so, she made no inquiry or advised Bahr in any way what she was about to do; that she knew that, if her finger became caught in the rolls while moving, she would be liable to be hurt.

Bahr testified that he explained to appellee the various levers and manner of operation; that just before the accident he had pulled the rug through the moving rolls, and, while the machine was operating toward him and he was in the act of again folding the rug for the purpose of putting it through the rolls, appellee, without saying anything to him, walked toward the machine, and got her finger caught in the rolls before he had finished folding the rug; that she hollered, and he immediately released the clasp, which holds the rollers together; that there was sufficient light in the basement to see the operation of the machine.

At the close of appellee’s evidence, and again at the close of all the evidence, appellant offered its peremptory instruction to find it not guilty, which the court refused, and the question is presented of whether or not appellee is guilty of such contributory negligence that bars recovery.

Although it is true that the question of contributory negligence is ordinarily a question for the jury, yet, when there is no conflict in the evidence, and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant. (Beidler v. Branshaw, 200 Ill. 425.)

A party has no right to knowingly expose himself to danger, and then recover damages for an injury which he might have avoided by the use of reasonable precaution. (Lovenguth v. City of Bloomington, 71 Ill. 238; North Chicago St. R. Co. v. Cossar, 203 Ill. 608.)

Appellee ,knew, prior to the accident, what function the wringer was performing, for she had observed the operation of the. rug being pulled backward and forward through the rolls. She knew that the motor was running, and that the rolls were operating a short time before she placed her finger thereon, and even if, as she says, the light was dim, it is all the more reason why she should use more caution about placing her fingers upon moving machinery, and why she should use due care to ascertain if the particular part she desired to inspect was in motion. Common prudence required that inquiry should have been made by her to ascertain if it were safe to make manual inspection.

It is clear that either appellee’s carelessness or inadvertence caused her finger to be caught between the rolls, and for conduct of this kind appellant would not be liable.

The rule is that every defendant shall be held liable for all of those consequences which might have been foreseen 'and expected as the results of his conduct, but not for those which he could not have foreseen, and is, therefore, under no moral obligation to take into consideration. (Braun v. Graven, 175 Ill. 401, Cleveland, C., C. & St. L. Ry. Co. v. Lindsay, 109 Ill. App. 533.)

Appellee gave no warning of her intention to do what she did when she placed her finger upon the roll. There was nothing in her conduct or speech which would suggest or require warning or watching. There was no evidence tending to show any negligence or improper conduct upon the part of appellant prior to appellee placing her finger in a dangerous place, and appellee’s charge of subsequent failure of appellant’s agent to more promptly release appellee from her predicament cannot reasonably be said under the evidence in this record to establish negligence against appellant.

For the reasons above stated, the judgment of the city court is reversed, and the clerk directed to include the following finding of facts in the judgment, viz:

The court finds that the injuries received by appellee were not caused by reason of the negligence of appellant, and that appellee was injured by reason of her own want of ordinary care.

Reversed with finding of facts.