text:
    Joseph D. Ryan, Appellee, v. The Pennsylvania Railroad Company, Appellant.
    Gen. No. 35,905.

      Heard in the second division of this court for the first district at the April term, 1932.
    Opinion filed November 22, 1932.

      Loesch, Scofield, Loesch & Burke, for appellant.
    Edmund M. Sinnott and Joseph D. Ryan (pro se), for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This suit was brought to enforce a lien under the Attorney’s Lien Law, Cahill’s St. ch. 13, If 13. From a finding and judgment in favor of petitioner in the” sum of $2,200 respondent has appealed.

The petition alleges, inter alia, that petitioner, Joseph D. Ryan, is a legally licensed attorney and that on March 2,1931, one A. Gf. Meadows entered into a contract with petitioner whereby he retained petitioner to represent him in the prosecution of a claim against respondent for personal injuries sustained by him through the alleged negligence of respondent; that the contract provided that in consideration of legal services rendered and to be rendered him he agreed to pay petitioner 20 per- cent of any amount received or realized from his claim, and further provided that he assign to petitioner 20 per cent of any judgment thereafter recovered and of any sum thereafter paid or agreed to be paid in settlement of the case; that the statutory notice of petitioner’s lien was served upon respondent; that petitioner then instituted a suit at law against respondent on behalf of Meadows and the cause was placed on the court calendar in September, 1931, and assigned for trial; that on October 27, 1931, respondent served a notice on petitioner that on October 28, 1931, it would appear before one of the judges of the court and file a stipulation in the cause, executed by the parties thereto, without the consent of the plaintiff’s attorney, to dismiss the suit; that the notice stated that the suit had been settled and the settlement paid, and that respondent would move the court for an order dismissing the suit; that pursuant to said stipulation, upon motion of respondent, the suit was ordered dismissed; that petitioner had no notice or knowledge of the settlement, and that the same was secretly and collusively made between Meadows and respondent long after the notice of petitioner’s claim for lien had been served upon respondent; that respondent failed and refused to pay or satisfy petitioner’s lien or any part thereof, and that Meadows failed and refused to pay petitioner the moneys due him under the terms of the contract or any part thereof. The answer of the respondent avers, upon information and belief, that the Meadows-Byan contract was not enforceable, inasmuch as it was entered into through the solicitation of petitioner by persons employed by or connected with the Brotherhood of Bailway Trainmen, one of whom was also an employee of petitioner in the solicitation of claims against railroad companies and who was receiving from petitioner for services in that behalf $125 a month; further avers, upon information and belief, that petitioner did not at any time investigate the facts surrounding the accident in question, but that an investigation was made by persons employed by or connected with the Brotherhood and that petitioner paid some of said persons money, and that the facts attending the accident were reported to petitioner by said persons; further avers, upon information and belief, that “the employee” of the Brotherhood was also an employee of petitioner and that said employee together with other employees of the Brotherhood solicited Meadows to employ petitioner to prosecute the action against respondent, and induced Meadows to employ petitioner to prosecute his claim .against respondent; further avers that the manner in which the claim was solicited and petitioner employed is contrary to the ethics of the legal profession and the public policy of this State, and that therefore “attorney’s fees cannot be recovered”; further avers, upon information and belief, that the agreement between petitioner and Meadows did not truthfully set out the compensation-which petitioner was to receive; that under an agreement between petitioner and the Brotherhood the latter was to receive 6 per cent of whatever sum was received by Meadows as a result of the claim or suit and petitioner was to receive for his services only 14 per cent of the sum received by Meadows; that the Brotherhood was not engaged in the practice of law and that because of the said agreement petitioner solicited the claim, and “through the various agencies aforesaid the said Meadows was induced to enter into said contract.”

Petitioner was the sole witness in his behalf. Respondent called only two witnesses, Tom J. McGrath, general counsel for the Brotherhood, and Stephen C. Lush, an investigator for that organization. At the conclusion of the testimony of the last named witness, counsel for respondent stated to the court that the witnesses had stated the facts “just as they were” and that it would therefore be unnecessary for him to call any other witness. It was stipulated that after respondent had received notice of petitioner’s lien it made a settlement with Meadows, about a week prior to October 27, 1931; that respondent paid to Meadows $11,000 in full settlement of his claim, and that the settlement was made without the knowledge or consent of petitioner.

Petitioner had practiced law in Chicago for 26 years. From our records we know that for many years he represented important corporations in the defense of personal injury cases and that for the last few years he has represented the opposite side of such cases. The Brotherhood of Railway Trainmen is a labor organization composed of conductors, switchmen, brakemen, baggagemen and switch tenders employed on steam railroads. It has 125,000 members, all of whom are engaged in hazardous occupations. In 1930 it “paid approximately 500 insurance claims based upon total or permanent injuries and death arising in the course of employment” of certain of its members. In addition, there were “six to eight hundred cases in which men were so seriously injured in railroad service that they were not able to follow- their occupation, but not considered totally and permanently disabled so as to be qualified for insurance.” The idea of organizing a legal aid department was under consideration by the Brotherhood for many years. It was first proposed in 1906, but no plan was adopted until 1928, when the general counsel for the Brotherhood, because of numerous complaints made to the organization that claim agents of the railroads were making inequitable settlements with employees who were members of the Brotherhood, that exorbitant fees were being charged by members’ lawyers, and that cases were frequently placed in the hands of incompetent lawyers and as a result members did not recover in meritorious cases, made an extended investigation of the subject matter of the complaints and “found an intolerable situation . . . the men were getting absolutely no legal, advice and were relying entirely upon the railroads furnishing them with information as to their rights, with the result that settlements were being made which were in my judgment unconscionable.” As a result of the investigation the general counsel made a report to the organization of the conditions he found, together with a recommendation that the Brotherhood create a central department to which the members could write and obtain information concerning their claims. In January or February, 1930, a questionnaire and ballot were sent to all the lodges of the Brotherhood to enable members to vote on the question as to whether a legal aid department should be organized by the Brotherhood, and by a vote of 11 to 1 the members voted ill favor of such a department. The legal aid department of the Brotherhood was then created. Thereafter the general counsel selected regional counsel and investigators throughout the United States, and petitioner was designated to act as regional counsel for the Brotherhood in the Chicago territory. The regional counsel, sixteen in number, were selected from lawyers of character, standing and ability who specialized in personal injury cases, and they were required to subscribe to certain rules and regulations relating to regional counsel that had been established by the Brotherhood. The legal aid department, upon the request of a claimant, or of a dependent in a death case, or a responsible lodge officer writing on behalf of an injured member or his dependents, made an investigation of the facts in cases where members suffered serious accidental injuries, and also provided the member who was injured, or his dependents in a death case, with an opportunity to have legal advice and counsel in the matter of the claim. On November 26,1930, A. G-. Meadows, a member of the Brotherhood, residing in Indianapolis, Indiana, while in the course of his employment by the respondent, sustained accidental injuries which resulted in the loss of an arm above the elbow. He requested the legal aid department of the Brotherhood to investigate his case, and Lush, the investigator, was directed to make the investigation. Lush made an investigation and reported the facts of the case to the general counsel of the Brotherhood. Lush met Meadows on January 9,1931, at the home of the latter and in the course of a conversation explained to Meadows that the'Brotherhood had regional counsel in different parts of the country and that he was privileged to call on any of such counsel for advice free of charge. Meadows then stated that he would be in Chicago shortly and would see petitioner, whereupon Lush stated that he was going to Chicago and would see petitioner on the following day and would talk over the facts of the case with him so that when Meadows called upon petitioner the latter “would be in a position to talle with him intelligently about the case.” Thereafter Meadows called at the office of petitioner in Chicago and discussed the facts of his case with him and asked his opinion as to the liability of the respondent and the costs of a suit, and also inquired as to the fee which petitioner would charge for the prosecution of the claim. Meadows informed petitioner that he had been offered the sum of $6,000 in settlement of his claim, by a claim agent of respondent, and that he intended to take the matter up again with that agent, and if the offer was not raised he would notify petitioner to commence suit. On February 26, 1931, Meadows wrote the following letter to petitioner:

“Mr. Jos. D. Ryan,
“Dear Sir:
“On my return I called on the claim agent, and he informed me that the six thousand was about as good as P. R. R. felt they could pay, and I guess I will have to take such action as may be necessary to force them to pay me a reasonable amount, and I think the quicker we get the ball to rolling the quicker it will be over with.
“Tours truly,
“A. Gr. Meadows.”

Upon the receipt of this letter petitioner mailed to Meadows a form of written contract, which the latter executed and returned to petitioner. Under this contract Meadows retained and employed petitioner to prosecute all suits and claims for damages against respondent on account of the personal injuries he had sustained and agreed to pay him a sum equal to 20 per cent of the amount realized from the claim. The evij dence shows that the usual and customary charge in similar cases is 33 per cent of the amount recovered, but by the agreement between the Brotherhood and its regional counsel, members of the Brotherhood were entitled to the services of any regional counsel for a sum equal to 20 per cent of any amount recovered.

Respondent contends that “the appellee is not entitled to an attorney’s lien because the contract on which his claim is based was secured by unlawful and unethical solicitation and fee-splitting,” that “the proof showed that there was a well organized plan or scheme by which appellee Attorney Joseph D. Ryan obtained many personal injury cases through the solicitation of the Brotherhood of Railroad Trainmen and its investigators,” and that “it is clear that appellee Ryan obtained the Meadows case through the unlawful and unethical solicitation by the Brotherhood of Railroad Trainmen and its investigators”; that it “can see no difference from the standpoint of legality and ethics between an individual ambulance chaser soliciting personal injury claims, and a corporation and its investigators investigating the cases of proposed claimants and influencing said claimants to retain their Regional Counsel.” After a careful consideration of all the facts we are satisfied that these contentions and arguments are without merit, and we feel impelled to say that the assertion that the Brotherhood, through its legal aid department, is akin to an ambulance chaser and that the petitioner was a beneficiary of an unethical and unlawful system of obtaining clients, is unworthy of the able lawyers who made it. The Brotherhood is a labor organization, composed of men engaged in hazardous occupations and who are banded together for mutual protection and advancement. The evidence establishes that it organized the legal aid department for the sole purpose of protecting its injured members or their families in the matter of claims growing out of injuries sustained in the course of employment. The argument that the legal aid department was a solicitation scheme by which petitioner “obtained many personal injury cases” is a most unfair one and entirely unwarranted under the evidence. The evidence, introduced by respondent, shows clearly the worthy purpose of the department and the necessity for its organization and maintenance. The instant case is an illustration of its benefit to the members. Bespondent, prior to the time that petitioner assumed charge of the case, twice refused to pay Meadows a greater sum than $6,000 in settlement of his claim, but when confronted with a trial, in which petitioner, an able and experienced lawyer, would appear as counsel for Meadows, it secretly settled with the latter for $11,000. That the Brotherhood did not intend to make a profit out of the operation of the department clearly appears from the testimony of the general counsel, who stated that it was not anticipated that the department would be self-supporting, and therefore provisions were made that any deficit arising out of the operation of the department should be made up from the Brotherhood’s protective fund, and that at the time of the trial there was a deficit in the sum of $32,000.

Petitioner advanced the costs of starting the suit and respondent contends that while petitioner testified that Meadows was to repay him the costs advanced “it is very significant that there was no written agreement which provided that Meadows was to reimburse By an for the money Byan advanced to pay the costs of the suit,” and argues that this fact is a circumstance tending to support its claim that petitioner was guilty of unethical conduct. Petitioner testified that he and Meadows agreed that petitioner should advance the court costs and that Meadows would repay , the same at his convenience. Such an arrangement iwas not unethical. (See Wallace v. C., M. & St. P. Ry. Co., 112 Ia. 565, 568; Northwestern S. S. Co. v. Cochran, 191 Fed. 146, 152; Christie v. Sawyer, 44 N. H. 298, 303; Molthrop v. New York, C. & St. L. R. Co., 245 Ill. App. 8, 16.)

Petitioner admitted that he made several loans to Meadows, aggregating in all $550, and that he was unable to remember positively whether he took notes or receipts for the amount “without looking it up,” and respondent argues that as petitioner produced neither notes nor receipts at the time of the trial “it would seem a proper inference, we submit, from this state of facts, that the money Eyan gave to Meadows was not a loan but was given to Meadows to influence him not to make a settlement with the appellant,” and it contends that such conduct would be unethical and unlawful. Petitioner testified that some time after he assumed charge of the Meadows case he learned through the general counsel of the Brotherhood that Meadows was “very sorely in need,” and that the Brotherhood had no funds to cover any such situation, and that later a representative of the Brotherhood asked him if he would not help Meadows; that he at first declined to do so, and later it was explained to him that if they did not help support Meadows and his family Meadows would be forced to settle his case, and that the moneys he advanced to Meadows for the support of the latter and his family were loans, and so understood by Meadows. A letter of Meadows to petitioner dated September 28, 1931, shows plainly that the advances were loans. Moreover, the evidence is undisputed that when Meadows made his settlement with respondent he mailed a check to petitioner for $550 in payment of the loans, and that upon the receipt of this check petitioner mailed back to Meadows the notes or receipts the latter had signed at the time the several loans were made. That petitioner,'from a business standpoint, acted unwisely in making the loans may be conceded, but we do not think that his conduct in that regard was unethical or against public policy, especially as he made the loans, not for self-benefit, but solely because of sympathy for the unfortunate client, whose condition might force him to settle .his claim for an inadequate amount through “dire necessity.” It is a not altogether unreasonable inference from the evidence that “dire necessity” finally forced Meadows to the secret settlement. Respondent admits the probability of a verdict for a larger amount had the case gone to trial. In Johnson v. Great Northern Ry. Co., 128 Minn. 365, 369, the court said: “The practice of advancing money to the injured client with which to pay living expenses or hospital bills during the pendency of the case and while he is unable to earn anything, may in a sense : tend to foment litigation by preventing a settlement , from necessity, but we are aware of no authority hold- | ing that it is against public policy, or of any sound S reason why it should be so considered.” What lawyer who has practiced for many years, no matter how exact or conscientious he may have been, could truthfully state that he had never aided a needy client? Where an attorney has furnished assistance to a needy client and a charge of unethical conduct becomes a material issue in the case, the pertinent inquiry is, Was the assistance rendered with the intent of sub- ¡ serving the ends of justice alone? There is not a word of evidence to support the argument that petitioner loaned the moneys to prevent a just settlement of the case, in fact, the proof is that he was willing at all times “to negotiate for an amicable settlement.”

Respondent further contends that petitioner paid, at the request of General Counsel- McGrath, half of the salary of George Riley, a Brotherhood inspector, amounting to $125 per month, and that this is a circumstance that tends to support its charge of unethical and unlawful conduct on the part of petitioner. The general counsel testified that the law firm of Davis, Michel, Yaeger & McKinley, of Minneapolis, was regional counsel for certain roads running between that place and Chicago, and that he, as general counsel, insisted that that firm should maintain a branch office in Chicago and keep a representative there so that members of the Brotherhood located in Chicago and its vicinity would not be required to go to Minneapolis for advice; that thereafter that law firm placed Riley in charge of its Chicago office but later found its maintenance too expensive and sought to withdraw Riley, and that he, the general counsel, would not permit this to be done if that law firm were to retain jurisdiction over the railroads in question; that he finally suggested to the Minneapolis lawyers that if they would permit the Brotherhood to use Riley for part-time work he would make arrangements with the petitioner to advance half of Riley’s salary, and that such an arrangement was made, and- from November, 1930, until July or August, 1931, petitioner advanced one-half of Riley’s salary. Mr. McGrath further testified that his arrangement with petitioner was that the sums so advanced by the latter were to be on behalf of the Brotherhood and that it was distinctly understood that the Brotherhood was to reimburse petitioner for any moneys so advanced, and that when Riley quit the employ of the Brotherhood in July or August, 1931, the Brotherhood paid petitioner in full for the moneys he had advanced on account of Riley’s salary by a check for $665.85. It will be noted that this payment was made to petitioner some time before the respondent settled the Meadows claim. Under the facts we are unable to find any merit in the instant contention.

The final contention of respondent is that the arrangement between the Brotherhood and petitioner, its regional counsel, whereby petitioner agreed to remit 6 per cent of the amount recovered towards the costs of investigation, was a “fee-splitting device” and contrary to the public policy of the State. As we have heretofore stated, the legal aid department maintained certain investigators, and when an' injured employee wrote to the department and made inquiry relative to his rights the department would answer his communication and send one of its investigators to investigate his case. It was the duty of this investigator to ascertain the facts and circumstances surrounding the accident and to make a report to the department. In addition, it was his duty to inform the injured employee that he had the right to go to the regional counsel in that district and obtain legal advice without cost but that if he preferred a regional counsel in any other district he was privileged to go to that counsel. It was further explained to the employee that if he could not effect an amicable settlement with the railroad he had the privilege of obtaining the services of a regional counsel “on a 20 per cent contract basis.” In case of a law suit, the information secured in the investigation was sent to the regional counsel who had charge of the claim. Petitioner, as well as the general counsel, testified that it was agreed between the former and the Brotherhood that 6 per cent of the contract price would go to the Brotherhood to help cover the costs of investigating the case. Petitioner also testified that “it was understood that the money automatically went to the bureau.....If an employee, a member of the Brotherhood, received advice from regional counsel here he knows that twenty per cent of any sum he is paid does not go to the lawyer in its entirety, but six per cent of it goes to the bureau and knows that the lawyer is simply a custodian of that portion, of the sum.” Petitioner argues that in a case like the instant one it is absolutely necessary that an investigation of the facts and circumstances surrounding the accident be made by someone, and that if petitioner were to employ his own investigators he would have to pay them, that in Brotherhood cases it is advisable that the investigators be members of that organization, and that in the instant proceeding it makes no difference, as a matter of ethics or morals, whether petitioner paid for the services directly to investigators or to the legal aid department of the Brotherhood; that in considering the nature of the arrangement by which the petitioner agreed to remit a portion of the 20 per cent the purpose and scope of that department should be borne in mind; that the evidence shows that it was not formed for the purpose of making a profit out of its operation nor_ for _ the benefit of regional counsel, but solely to protect the rights of injured members or their families. The burden of proving the charge made in the answer was upon the respondent, and after considering the material question involved in this appeal in the light of all the facts and circumstances, we have reached the conclusion that we would not be justified in holding that the contract on which the claim is based “was secured by unlawful and unethical solicitation and fee-splitting.” Intemperate and unwarranted argument cannot obscure a record which clearly shows that the purpose of the Brotherhood is a worthy one, planned to prevent possible frauds upon its injured members and to aid them in the assertion of their legal rights, and that as a result of that purpose or plan Meadows, in the instant case, obtained the legal services of a very able and experienced lawyer and at a stipulated fee far below that usually fixed in similar cases. The settlement for $11,000, almost double the amount offered Meadows prior to the commencement of the action, tends strongly to prove the worth of the plan to the members of the Brotherhood. Respondent cites Puls v. Chicago & Northwestern R. R. Co., 233 Ill. App. 625, and People v. Berezniak, 292 Ill. 305, in support of its position, but neither of these cases has any application, upon the facts, to the instant proceeding. The same may be said as to several decisions of sister states that are also cited.

Respondent contends that “the appellee, if entitled to an attorney’s lien, is limited to 14 per cent of $11,000, the sum paid by appellant ... in settlement of the Meadow’s claim, because appellee agreed to give to the Brotherhood of Railroad Trainmen 6 per cent of whatever amount might be realized out of said claim.” There is no merit in this contention, if we are correct in our holding that the contract between petitioner and Meadows is not against public policy, as it is a matter of no concern to the respondent what petitioner may do with the amount of the fee fixed by the contract. Meadows, the undisputed evidence shows, understood the arrangement and agreed to it, and certainly respondent can ask no more than to stand in the shoes of Meadows.

The judgment of the superior court of Cook county should be and it is affirmed.

Affirmed.

Kerner, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    The Beverly Country Club, Appellee, v. Massachusetts Bonding and Insurance Company, Appellant.
    Gen. No. 35,951.

      Heard in the second division of this court for the first district at the April term, 1932.
    Opinion filed November 22, 1932.
    Harold J. Ross and Peter F. Schramm, for appellant.
    Litsinger, Healy, Reid & Bye, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

The Beverly Country Club, a corporation, sued Massachusetts Bonding and Insurance Company, a corporation, in the municipal court of Chicago in a “fourth class contract case.” To an amended statement of claim the defendant filed a motion “to dismiss the cause for want of jurisdiction of the subject matter,” which motion was overruled, and thereupon the defendant moved to strike the amended statement of claim for insufficiency, which motion was also overruled, and the defendant “electing to stand by the motions,” the court assessed the plaintiff’s damages at the sum of $216 “on the plaintiff’s affidavit of claim,” and judgment was entered for that amount. The defendant has appealed.

The plaintiff’s amended statement of claim alleges:

“That on September 13, 1930 ... it carried insurance under a policy issued by . . . the defendant herein, . . . dated October 30, 1929, a copy of said policy being’ attached hereto . . . ; that the policy so issued was the standard workmen’s compensation and employers’ liability policy, and that said defendant company herein agreed with the plaintiff, named and described as employer in the declarations forming a part of said policy as respects personal injuries sustained by employees, as follows:
“ ‘To pay promptly to any person entitled thereto, under the Workmen’s Compensation Law and in the manner therein provided, the entire amount of any sum due and all installments thereof as they become due.
“ 1 (1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen’s Compensation Law, and
“ ‘ (2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen’s Compensation Law’; that it was further agreed . . . and . . . stipulated in said policy, that all of the provisions of the Workmen’s Compensation Law of the State of Illinois shall be and remain a part of the contract between said parties ... as fully and completely as if the provisions of said law were written in said policy of insurance; that one of the provisions of the Workmen’s Compensation Law ... in case of accidental injuries arising out of and in the course of employment is as follows, to-wit:
1 ‘ ‘ The employer shall provide the necessary first aid medical and surgical services and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.’ that on September 13, 1930 one Fred Knipper, an employee of the plaintiff, was injured in the course of his employment, and the said injury received by him grew out of his employment as an employee of the plaintiff ; that following said injury it became and was necessary for the defendant to provide hospital, medical and surgical services and treatment for said injured employee; that an expense of Sixty Six Dollars was incurred at the Illinois Central Hospital . . . and the further expense of One Hundred Fjity Dollars for the services of Dr. Beveridge H. Moore, . . . that the expenses thus incurred were reasonably required to effect a cure or relief from said injury and were properly incurred, in accordance with the aforesaid provision of said Workmen’s Compensation Law of Illinois; that a demand was made upon the defendant company to pay said bills . . . and upon the refusal of said defendant company to pay said bills the plaintiff paid the same and then made a further demand upon the defendant company to reimburse it for the payment thereof; that the defendant company has repeatedly refused and neglected to reimburse the plaintiff on account of the payment of the aforesaid medical, surgical and hospital bills and that the plaintiff therefore brings its suit,” etc.

Attached to the statement of claim is a copy of the policy.

The major contention of the defendant is that “the Municipal court was without jurisdiction to pass judgment on the subject-matter of the claim sued upon, or to determine liability in the ease, or enforce payment of the claim.” In support of this contention the defendant argues that the liability of an employer for medical, surgical, and hospital services did not exist until the passage of the Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq.; that the industrial commission has sole and exclusive jurisdiction to determine the liability of the employer for such expenses; that “the liability of an insurer is exactly co-extensive with, and to be enforced by the Industrial Commission in like manner, as the liability of the employer,” and that “by making the provisions of the Workmen’s Compensation Act part of the policy the insurer and employer gave the Industrial Commission jurisdiction to determine liability for payments due under the Act,” and the defendant further argues that to permit an employer to pass upon the validity of the claims and to secure reimbursement in a court of common law for such as he might decide to pay, would be to place the insurer at the mercy of an unscrupulous or dishonest employer working in collusion with his employee, and that “it was for this reason and to facilitate the disposition of such claims that the Industrial Commission was given jurisdiction to pass primarily and finally upon the liabilities of insurers under the Workmen’s Compensation Law, as well as the liability of employers (Sec. 28 — chapter 48 — Cahill’s Revised Statutes 1931).”

Our Supreme Court has frequently stated that the Workmen’s Compensation Act is designed to protect workmen and compensate them for injuries received while performing any duty necessary to be performed in the course of their employment or incident to it. Under the act, the claim for compensation must be made by the -party or the person entitled to compensation, in person or by or through some person who is authorized as the agent or attorney of such party to make such demand, and “the demand for compensation" by the proper claimant is jurisdictional and that if not made within the time required by the Compensation act the claim for compensation 'is barred.” (Northwestern Malt Co. v. Industrial Com., 313 Ill. 534, 538; Neenan v. Industrial Com., 329 Ill. 48, 55.) Section 28 of the act, which the defendant cites in support of its contention, provides: “In the event the employer does not pay the compensation for which he is liable, then an insurance company, association or insurer which may have insured such employer against such liability shall become primarily liable to pay to the employee, his personal representative or beneficiary, the compensation required by the provisions of "this Act to be paid by such employer. The insurance carrier may be made a party to the proceedings to which the employer is a party and an award may be entered jointly against the employer and the insurance carrier.” Cahill’s St. ch. 48, ¶ 228. In Equitable Underwriters v. Industrial Com., 322 Ill. 462, 468-9, the court said: “The provisions set forth in the first sentence of said section 28, now in force, are plain, unequivocal and positive to the effect that if the employer does not pay the compensation for which he is liable, then an insurance company which may have insured such employer against such liability shall become primarily liable to pay to the employee, his personal representative or beneficiary, the compensation required by the provisions of this act to be paid by such employer. This provision gives the employee a right to proceed directly and solely against the insurance company if the employer insured by it does not pay the compensation for which he is liable. The proceeding should be brought before the Industrial Commission, and it is contemplated by this section that a proceeding has already been brought against the employer insured and his liability established and that the employer has refused or does not pay the compensation for which he is held liable. The plain and unequivocal provisions set forth in the second sentence of that section are, that such insurance carrier may be made a party to the proceedings before the Industrial Commission to which the employer is a party, ánd that an award may be entered jointly against the employer and the insurance carrier if a liability is established against the employer. This right to the employee so injured is unlimited, and we hold that the proceedings may be brought against the insurance carrier either before or after the employer’s liability has been established and an award made against him and the insurance carrier be held liable in a joint award against it and the employer.” (Italics ours.) It is clear, therefore, that before the commission can obtain jurisdiction against an insurance company, a proceeding brought by the employee against the employer under the act, must first be commenced. In the case last cited the court further held (p. 470) that the rights of the employee under a contract of insurance and under the provisions of the act were in no way controlled by the rights of the insured or the employer against the insurance company. In other words, section 28 is intended to aid the employee, not the employer, and unless the commission has acquired jurisdiction through the filing of a claim by the employee in apt time it would have no jurisdiction to proceed in any way against the insurance company. The claim of the plaintiff is not based upon the theory that there has been an award against it before the commission and that it has paid the same and therefore the defendant, under the policy, is obligated to reimburse it for the amount so paid; nor does it proceed upon the theory that the employee ever filed a claim before the commission; nor does the defendant by apt pleading set up that there had been a proceeding of any kind before the commission. On the contrary, the defendant takes the position that the plaintiff, under the act and the contract, could assert its claim only before the commission. The defendant’s position, if sustained, would amount to this: The plaintiff in the instant case, in obedience to the mandate of section 8 (a), par. 208, of the act, provided first aid to the employee, but because the latter did not file a claim before the commission the former has no forum in which it can assert its claim under the policy against the defendant. The act does not contemplate such an unjust consequence, nor does it intend that the commission shall hear and determine claims like the instant one, in which the employee has no financial interest.

The only authority cited by the defendant in support of its contention is Hill v. Kerens-Donnewald Coal Co., 210 Ill. App. 560. There it appears that the employee sued the employer under the Compensation Act, in the circuit court, and the decision has no bearing upon the instant contention. The plaintiff cites Augustus v. Lewin, 224 Ill. App. 376, and Edwards v. Centralia Coal Co., 227 Ill. App. 453, but it admits that these cases “are not exactly in point with the case at bar” but argues that.the principle involved is the same. While the reasoning in these two cases may have some bearing upon the question before us they are, under the facts, not controlling. The argument of the defendant that if its contention is not sustained such ruling would, in effect, ignore that part of the policy which provides that the provisions of the Compensation Act shall be a part of the contract, is without merit, because in the instant proceeding the plaintiff would be obliged to prove that the injured employee came under the act, that he was injured in the course of his employment, etc. Upon a careful consideration of the contention of the defendant, we are satisfied that it is without merit.

The plaintiff sued the defendant in a “fourth" class contract action” and the contention of the defendant that “the amended statement of claim did not set forth a cause of action, and was insufficient, vague, and indefinite,” and should have been stricken, is without merit.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Kerner, P. J., and Gridley, J., concur.


text:
    Frank H. Caraher, Appellant, v. First Guardian Company, Appellee.
    Gen. No. 36,089.

      Heard in the second division of this court for the first district at the June term, 1932.
    Opinion filed November 22, 1932.
    Hogan & Simon, for appellant.
    No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Frank H. Caraher, plaintiff, sued First Guardian Company, a corporation, defendant, in assumpsit. The plaintiff, by leave of court, filed an amended declaration, to which the defendant filed a general demurrer, which was sustained, and the plaintiff electing to stand by his amended declaration, judgment for the defendant was entered, and plaintiff has appealed.

In determining the one contention raised by this appeal it is only necessary to state the following allegations of the amended declaration: That on February 13, 1929, the defendant maintained an office in Chicago and carried on a business within this State, and that by its agents it knowingly sold to the plaintiff a note of the Continental States Utilities, Inc., a corporation, licensed and existing under the laws of Maryland, “for which a certain certificate was issued by the said Continental States Utilities, Inc., for the aggregate sum of $1,000, which the plaintiff . . . paid to the said defendant . . . and that the said sale of the said note being made to the plaintiff by the defendant in the course of a number of continued . . . and numerous transactions of a similar nature, namely, the sale of a great number of notes of the Continental States Utilities, Inc.; that the note herein referred to was commonly known and designated as a One Year 5%% Secured Gold Note — $1,000 Dollars; . . . that the defendant ... at the time of the . . . transaction between the plaintiff and the defendant, nor prior nor subsequent thereto, did not comply with the provisions of an Act of the Legislature of the State of Illinois, entitled: ‘An Act relating to the sale or other disposition of Securities and providing penalties for the violation thereof and to repeal acts in conflict therewith, ’ approved and in force June 10,1919, the said defendant . . . had not theretofore filed or caused to be filed in the office of the Secretary of State of the State of Illinois, a statement or inventory of any kind, character or description as is required by the provisions of the said act, describing the character of any Securities or stock intended to be offered for sale or sold, or a statement giving a detailed statement of the assets and liabilities of said Continental States Utilities, Inc., ... or any other kind of statement or document whatsoever as is required to be filed in the office of the said Secretary of State by the said Act, . . . and the defendant, . . . sold to the plaintiff the said Quid note.” The declaration further alleges that the Continental States Utilities, Inc., “is not and was not a public utilities company and was not at any time engaged in the buying or selling of any commodity to the public; . . . that the said corporation was organized as and was merely a holding company for stocks and bonds of certain corporations, which stocks and bonds were bought, held and sold for a profit; . . . that the aforementioned note . . . does not come within the purview of Subsection 10 of Section 4 of Paragraph 99 of Chapter 121% of Smith & Hurd’s Revised Statutes of Illinois of 1929, in that the aforesaid note was for a period of time running more than 12 months from the date it bears; . . . that by reason of the premises and the statute in such case made and provided, the sale of the said note or security was null and void and in violation of the said Act ... as aforesaid. ’ ’ Attached to the declaration and made a part thereof is a copy of the note in question. The plaintiff sued to recover the amount paid for the note, together with his reasonable attorney’s fees.

The note is dated December 1, 1928, and it recites, inter alia, the following: “Continental States Utilities, Inc., a corporation duly organized and existing under the laws of the State of Maryland, (hereinafter called the' ‘Company’) for value received, hereby promises to pay to the bearer hereof the sum of One Thousand Dollars on the first day of December, 1929.”

The plaintiff, in his brief, states: “At the hearing of the demurrer . . . there was but one issue, namely: Did the note which the plaintiff purchased come within the Statute, Sub-section 10 of Section 4 of Paragraph 99 of Chapter 121% of Smith-Hurd Illinois Revised Statutes of 19291” and his sole contention in this court is that the note runs for “more than twelve months from the date of issue,” and that the trial court erred in holding to the contrary. The plaintiff concedes that if the trial court held correctly in that regard the note came “within the exemption of Sub-section 10 of Section 4 of Paragraph 99 of Chapter 121% Smith-Hurd Statutes of 1929,” and it “need not be qualified (under the act) before being offered to the public for sale.” The plaintiff cites no authorities in support of his contention, and merely argues that it is plain from the terms of the note that the instrument runs for “more than twelve months from the date of issue.” The defendant has not favored us with a brief.

It is not necessary to file any statement in the office of the Secretary of State as to securities in class A (see sec. 4 of the Blue Sky Law, Cahill’s St. ch. 32, ¶ 257), and the various securities that shall be included in that class are enumerated in that section. The plaintiff states that the determination of his contention is governed by subsection 10, of sec. 4, the pertinent part of which reads as follows: “ . . . and promissory notes or commercial paper running not more than twelve months from the date of issue.” Section 86, par. 108 of our Negotiable Instruments Act provides: “Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment.” That section follows, verbatim, sec. 86 of the Negotiable Instruments Act, Cahill’s St. ch. 98, if 108, that now prevails in all of the States of the Union. That act followed the general rule that had been observed in this country for many years. (See Weeks v. Bull, Admr., 19 Conn. 381; Hitchings v. Edmands, 132 Mass. 338, 339; Anderson’s Dictionary of Law, p. 312.)

The language used in sub-section 10, “ . . . and - promissory notes or commercial paper running not more than twelve months from the date of issue,” is also useful in determining the intent of the legislature. “In computing time ‘from’ a day, the rule is to exclude that day.” (Anderson’s Dictionary of Law, p. 481.) “From” is a term of exclusion unless by necessary implication it is manifestly used in a different sense. (Bradley v. Rice, 13 Me. 198, 201.) An officer commissioned to hold office during the term of four years from the 2d day of March, 1845, is in office on the 2d day of March, 1849. The word “from” excludes the day of date. (Best v. Polk, 18 Wall. 112, 119.) In Lewy v. Wilkinson, 135 La. 105, 64 So. 1003, the court held that a note dated December 31, payable in one year, matures on December 31 of the following year. A promissory note runs until the date of maturity, and in the instant case the note ran for only 12 months from the date of issue. If the maker of the instant note had followed the language of subsection 10 and had provided that the note was payable “twelve months from the date of issue,” it would have matured on December 1, 1929, which is the date of maturity fixed by the note. Paragraph 108 states a rule of law that applies to almost countless important transactions in the commercial world, and we must presume that the legislature had that paragraph in mind when it enacted subsection 10. In' fact, the very language used in the subsection indicates plainly, we think, that the rule stated in paragraph 108 was recognized and followed.

After a very careful consideration of the contention raised by the plaintiff we are satisfied that there is no merit in it. The judgment of the superior court of Cook county is affirmed.

Affirmed,

Kerner, P. J., and Gridley, J., concur.


author: Mr. Justice Niehaus

text:
    The Stuyvesant Insurance Company, Plaintiff in Error, v. The Ayers National Bank of Jacksonville, Illinois, Defendant in Error.
    Gen. No. 8,557.

      Heard in this court at the October term, 1932.
    Opinion filed October 17, 1932.
    Rehearing denied January 4, 1933.
    Silber, Isaacs, Silber & Woley, for plaintiff in error; Samuel Levin and Herbert W. Hirsh, of counsel.
    Bellatti, Samuell & Moriarty, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

This suit is an action of trover which was brought by the plaintiff in error, Stuyvesant Insurance Company, in the circuit court of Morgan county to recover the amount of two checks from the Ayers National Bank of Jacksonville which had been issued for insurance premiums, and accepted and cashed by the bank. It appears from the evidence that the checks were for the respective amounts due for the premiums on two policies of insurance which had been secured and written by the Corn Belt Insurance Agency and had been made payable to the order of the Stuyvesant Insurance Company. The insurance company claimed the right to recover the amount of the two checks from the Ayers Bank on the ground that the checks which had been given for an insurance premium for policies to be issued by the insurance company had been made payable to the order of the insurance company, and that the agency had no authority to indorse the checks for the company; and that the Ayers Bank, by accepting and paying the checks without the insurance company’s indorsement, had deprived the insurance company of the money which the checks called for and thereby was guilty of trover in converting the money of the insurance company. The parties to the cause waived a jury trial, and the case was tried by the court. The court, after hearing the evidence, found the issues for the defendant in error, the Ayers National Bank, and rendered judgment accordingly. This writ of error is prosecuted to reverse the judgment.

The following facts are disclosed by the record:

The Corn Belt Insurance Agency was a business organization in the City of Jacksonville; B. E. White was the owner of the agency, and his wife, Hazel Gr. White, was his assistant in conducting the business of the agency. The wife particularly took care of the office work; kept the books, and also had charge of financial matters arising in the agency, looked after the bank account of the agency; made deposits and drew checks on the agency bank account in due course of the business of the agency; and the bank account was kept in the name of the agency. On June 26,1928, the insurance company, for the purpose of securing services of the Corn Belt Agency to secure and write fire insurance policies, entered into a contract with the agency to secure such business. This contract is as follows:

“Memorandum of Agreement, made this 26 day of June 1928 by and between the Stuyvesant Insurance Company and Corn Belt Insurance Agency, Applebee Bldg., Jacksonville, Ill. Agent of said Company, for the territory of Jacksonville, and Vicinity.
“Witnesseth: That in consideration of the compensation hereinafter named, the said Agent hereby agrees to faithfully represent the said Company in all matters pertaining to and within the jurisdiction and scope of the Agency, and with fidelity to serve said Company in the capacity as Agent, using best endeavors to increase the volume and improve the quality of the business written for said Company at the Agency from year to year, and to carry out to the best of his ability all instructions of said Company.
“In consideration of such faithful services the Stuyvesant Insurance Company agrees to allow said Agent a commission on net premiums collected on policies of insurance as follows:—
“Tornado:—
25 per cent.
“Fire :—
“25 per cent on Dwellings and Private Barns in connection therewith and Contents of each: Flat Buildings, Churches, Schools, Colleges, Hospitals, Sanitariums, Homes for the Aged, Children’s Homes and strictly Charitable Institutions and their Contents.
“25 per cent on Buildings and Contents occupied exclusively by Y. M. C. A.
“25 per cent on all risks supported by Public Taxation (including jails) (Excepting, penal and Reformatory Institutions, State and County Fair Ground Property, and risks where Power is used: other than Pumping* and Lighting Stations) and the Contents of buildings not excepted above.
“25 per cent on Buildings of Brick, Stone or Concrete (Cement or Concrete Block, brick veneered or iron-clad buildings class as Frame) occupied for the following purposes: Mercantile, Hotel, Office, Lodge,Telephone Exchange or Public Hall (without stage or scenery). Property of Telephone Exchanges (where occupancy is exclusive, when in Brick, Stone or Concrete buildings).
“20 per cent on Frame, Iron-Clad, Cement Block and Brick Veneered Mercantile Buildings and Contents, on Stock in brick mercantile buildings.
“15 per cent on all other classes.
“10 per cent Contingent commission as per separate contingent commission agreement to be figured on the profits of the entire account combined for each year.
“Accounts will be rendered by the Agent for the business of each month so as to reach the said Company’s office not later than the fifth day of the following month, and the balances thereunder are to be paid not later than the 15th day of the second month succeeding that for which they are rendered.
“It is further understood that this agreement shall continue from year to year unless terminated by either party. The right to resignation or removal at any time being recognized by both parties.
“This agreement takes the place of and abrogates any contract, agreement or understanding, either verbal or written of prior date between the parties mentioned therein.
“In Witness Whereof, This Agreement has been signed in duplicate by the parties hereto, the year and date first above written.
“The Stuyvesant Insurance Company
“F. N. Brown, Supt. of Agencies
“Signature of Agent
“R. E. White.”

In conformity with the above contract, the insurance company issued to the Corn Belt Agency the following certificate of authority to act as its agent:

“Be it known that the Cornbelt Insurance Agency of Jacksonville in the County of Morgan and State of Illinois appointed and by these presents duly constituted Agent of The Stuyvesant Insurance Company
New York Organized 1850
with full power to receive proposals for Insurance against loss and damage by fire in Jacksonville and vicinity to fix rates of premiums, to receive moneys, and to countersign, issue, renew, and consent to the transfer of Policies of 'Insurance signed hy the President and attested by the Secretary of The Stuyvesant Insurance Company, subject to the rules and regulations of said Company, and to such instructions as may from time to time be given by its officers.
“In Witness Whereof, the Stuyvesant Insurance Company, has caused these presents to be signed by its President and attested by its Secretary, this 26th day of June, A. D. 1928.
“J. S. Frelinghuysen,
“President.
“Attest
“G. F. Hutchings Secretary.”

The two checks referred to were part of the business transacted for the insurance company by the Corn Belt Agency. The first check was drawn by the Central Illinois Grain Company June 1, 1929, for $2,063.12, payable to the order of the Stuyvesant Insurance Company and delivered to the Corn Belt Agency in payment of the premium due on a $200,000 fire insurance policy, taken out by the grain company in the Stuyvesant Insurance Company through the Corn Belt Insurance Agency. The second check was drawn by C. B. Lewis, July 2, 1929 for $1,488.75 and made payable to the order of the Stuyvesant Insurance Company; and delivered to the Corn Belt Agency to pay the premium due on a fire insurance policy taken out in the Stuyvesant Insurance Company through the Corn Belt Insurance Agency. The checks, after delivery to the Corn Belt Agency, were indorsed for the agency by Hazel G. White, the wife of B. E. White, and were deposited in the Ayers National Bank in the due course of the business of the agency; and by the Ayers National Bank credited to the account of the Corn Belt Agency. It is the contention of the insurance company that inasmuch as neither B. E. White nor Hazel G. White had any express authority to indorse the name of the insurance company on the checks in question, the indorsement of the checks was wrongfully made and that the checks were wrongfully accepted and paid by the Ayers National Bank; and that the Ayers National Bank, by accepting the checks for deposit and turning over to the Agency the amount of money represented by the checks was guilty of a conversion of the money represented by the checks.

The general rule of law bearing upon the question presented is as contended by the insurance company, namely, that to make an indorsement of commercial paper payable to a principal, valid when made by an agent, the agent must have express authority; but it is also well settled that this general rule of law has a recognized exception. This is pointed out in the case of Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151. In that case the court said:

“When the authority to execute or endorse a negotiable instrument is sought to be deduced from an agency to do certain other acts, it must be made to appear affirmatively, that the signing or endorsement of such an instrument was within the general objects and purposes of authority which was actually conferred.”

Applying the law cited to the facts in this case, it affirmatively appears that under the terms of the contract which the insurance company made with the Corn Belt Agency, the insurance company allowed the agency commissions for insurance written by the agency, only if the premiums were collected by the agency; and that authority was expressly conferred upon the agency by the certificate of authority to collect and to receive the moneys due the insurance company arising from the business transacted by the agency for the company; and it seems apparent that the agency could not have collected the money represented by the premium checks, which they were authorized to collect, without indorsing the checks.

We conclude that the authority to indorse the" name of the insurance company for the purpose of collecting the money was necessarily implied. Moreover, under the contract constituting the Corn Belt Agency the agent of the insurance company to transact its insurance at Jacksonville, the Corn Belt Agency became a general agent of the insurance company; and as such general agent, possessed all the powers of a general agent. A general agent has implied power to do those things necessary and proper to be done to carry into effect the purpose and scope of the agency business and to transact the business of the principal for which an agent is constituted in the usual and customary way; and as the principal could and would usually have done if the principal had been present. 2 Corpus Juris 427; Home Life Ins. Co. v. Pierce, 75 Ill. 426; Phenix Ins. Co. v. Hart, 149 Ill. 513; Mechem on Agency, par. 395.

General authority to conduct a business involving the acceptance of checks will of necessity involve implying authority to take and indorse such paper in the course of the business intrusted to the agent. 2 Corpus Juris, 629 (note a).

It may be further pointed out that one lawfully in the possession of a check may present it for payment; and payment to him will be valid; and the fact that it had not been indorsed by the owner is of no substantial importance if the person to whom payment is made was in fact the agent of the owner to receive payment; and the payment to such agent will be valid without indorsement. 1 Daniels on ’Negotiable Instruments, secs. 572-574. Shaffner v. Edgerton, 13 Ill. App. 132.

For the reasons stated we are of opinion that the finding and judgment of the trial court is in accordance with the law and the evidence, and the judgment is therefore affirmed.

Affirmed.


text:
    Harry Herberger, Appellee, v. Anderson Motor Service Company, Appellant.
    Gen. No. 8,612.

      Heard in this court at the January term, 1932.
    Opinion filed October 17, 1932.
    Rehearing denied January 4, 1933.
    Hoopes & Pefferle, for appellant.
    C. A. Livingstone and L. E. Stone, for appellee.
   Mr. Justice Niehaus

delivered the opinion of .the court.

The appellee, Harry Herberger, commenced this suit in the circuit court of Sangamon county to recover damages from the appellant, Anderson Motor Service Company, which is engaged in the business of operating a large freight truck and “box car trailers” attached, along and upon the hard surfaced highways of the State. The damages sought to be recovered are , for alleged injuries suffered by the appellee as the result of a collision with appellant’s trailer, on the night of September 28, 1930, when the automobile in which appellee was riding crashed into the rear end of one of the trailers mentioned, which at that time the appellant was operating along the hard surfaced highway known as “Boute 4,” one mile south of Virden. There was a jury trial in the case; and it resulted in a verdict and judgment for $6,000 against the appellant. This appeal is prosecuted from the judgment.

The collision referred to occurred about 10 o’clock p. m. at a point on Boute 4 adjacent to the crossing of the C. B. & Q. Bailroad. The circumstances under which the collision was brought about appear in the testimony of Thomas Spiers, the driver of the automobile taxicab in which appellee was riding. Spiers testified as follows:

“We went north and east all of the way until we got a short ways south of the Burlington tracks and turned north again and right there was where the wreck occurred. The last turn is approximately a mile and a quarter or a mile and a half from Virden. As we were approaching the turn I looked down the dirt road to the south and saw the train. ... I was going east until I turned. The dirt road is about a quarter of a mile long from the edge of the hard road up to the railroad track, and is on an angle. As we made the turn we saw the train on the track. This track was approximately a quarter of a mile, two or three blocks away. The train was south of the dirt road, I don’t know for sure but about 200 feet. It was a freight train with a heavy drag. I am familiar with the speed of an automobile. I approached the turn cautiously because it is a real short turn. They got a big danger sign there and I always heed those. I went around the curve about 20 miles an hour.and then picked up to 35 miles an hour. Harry Herberger was sitting beside me in the front seat. George Drop was sitting in the rear seat. They said that the train was coming but I saw it all' the time. I glanced over my shoulder to see the exact location of the train. I tried to keep an eye on it. I wanted to be sure there would be no mistake made and that the train was moving slowly. The train was moving on an angle while I was going straight. I did not see any signal as we approached the place where the railroad track crosses the hardroad. The last time I looked for the train before reaching the railroad track, we were a little over a block away, from where the accident happened. As near as I can remember when I looked back for the train I had to look through glass, that is of the side door, the door leading to the back seat. I saw it over my right shoulder and at that time it was between a quarter and a half mile from where the railroad crosses the hard road. We were traveling 35 miles an hour and I saw that there was no need for me to step on the gas or that there was no need to wait, that the train was a safe distance and just then something loomed up that turned out to be a truck. I put on the brakes but it didn’t' do any good. We were just a yard or two from the truck. I couldn’t tell exactly because it just happened like a flash. When I saw this object I was about two yards from it. There was no light on the object. ’ ’

George Drop, Jr., who was riding in the rear seat of the cab referred to, gave the following account of how the collision happened:

“As we approached that turn I noticed a train. The train was about 250 feet south of the cross road. The cross road is about a block or a block and a half east of the hardroad. I am familiar with the speed of an automobile. We were going between 30 and 35 miles an hour. I was in the back seat on the right hand side. When we went around the turn I noticed the train and I kept looking backwards at the train, and in front of us, all the time looking back and forth, and when we got up to the crossing I look and I look around, I didn’t see any lights flash or anything. It seemed like to me that the train was about 12 or 15 feet from the crossing, and then I looked around and when I looked around I looked up and seen the truck right in front of us. The crossing I have reference to is the hard road crossing, where these railroad tracks are. When we got there I seen the truck right in front of it and I hollered out; that is all I remember. . . . I didn’t see any light on the truck.”

The appellee testified concerning the collision, as follows:

“I was riding at the right side of the driver. Thomas Spiers was driving. George was in the back seat. Tom was driving about 35 miles an hour. I am acquainted with the road from Girard to Virden. I traveled it a great deal when I lived there. . . . On this night I saw a freight train about 250 to 300 feet south of the dirt road. I observed the train. I don’t recall how long it was. The train was traveling between 10 and 15 miles an hour, a very slow train. It is 465 feet from where the dirt road crosses up to the tub that flashes the lights. When we made the turn, the train was south of the dirt crossing. . . . From time to time I looked around to see if the train was coming and I told Tom he had plenty of time to cross without any danger to ourselves. At the time that we came up within a block of the place where the railroad crosses the hard road, the train was then about even with the dirt road, just a little bit north of it. Then I turned around and looked in front. I don’t recall the crash. I recall seeing the truck and the crash about the same time. It was just a matter of seconds from the time I looked at the train the last time, until the crash occurred. When I saw the truck, we were about two or three yards from it. I was looking straight ahead when the crash came.....Tom stepped on his brakes. I could feel the car waver. He was traveling between 30' and 35 miles an hour; before he made the turn he slowed down a little bit at the turn and then he stepped on it. There was no light on the thing we crashed into. The signal lights at the crossing had not begun to flash when we crashed. There is a light there at the crossing, but it had not flashed. ’ ’

The case was tried and submitted to the jury on the issues raised by the charges of negligence made in the first and second counts of the amended declaration. The first count charges that:

“The defendant, by its duly authorized agent and servant was in the use, possession and control of a motor vehicle known as a motor truck and trailer and was operating the same along a public highway known as Eoute 4 of the State System of Durable Hard Surfaced Eoads in the State of Illinois. And it was then and there the duty of the defendant to use care and caution so as not to injure persons driving upon the highway, in the exercise of reasonable care for their own safety; but the defendant disregarding that duty and in the night time, at about 10 o’clock p. m. at a point about one mile south of the City of Virden, Illinois, the defendant, through its agent, carelessly and negligently stopped its motor truck with trailers attached and allowed them to remain standing on the slab of the highway without any lights thereon and without any means of warning travelers, and as the results thereof the defendant, through its servant, did then and there carelessly and negligently create a dangerous condition to persons traveling upon the highway. ’ ’

The second count charges that the collision occurred in consequence of appellant’s negligence in violating section 17 of the Motor Vehicle Act, Cahill’s St. ch. 95a, ¶ 17, in operating its truck and trailers. The section referred to requires that:

“"When upon any public highway in this State, during the period from one hour after sunset to sunrise, every motor bicycle shall carry one lighted lamp and every motor vehicle two lighted lamps showing white lights, or lights of a yellow or amber tint, visible at least two hundred (200) feet in the direction toward which each motor bicycle or motor vehicle is proceeding, and each motor vehicle, trailer or semi-trailer shall also exhibit at least one lighted lamp which shall be so situated as to throw a red light'visible in the reverse direction.”

The injuries suffered by the appellee were very serious and included a fractured knee, a dislocated hip, as well as many serious cuts, contusions, bruises and lacerations all over the body.

One of the errors assigned by appellant relates to the sustaining of a demurrer by the court to the special pleas filed by the appellant as a defense to appellee’s right to recovery in this action. The special pleas set out a certain agreement in writing by virtue of which the appellee is alleged to have received the sum of $1,250 in settlement for the damages sustained by him; and that the sum mentioned was received from certain persons; namely, H. L. Mays, J. E. Spiers and Thos. Spiers, owners, and operators of the automobile taxi in which appellee was riding at the time of the collision. The written instrument referred to is as follows:

“Purchase oe Peace
“In consideration of the payment of One Thousand Two Hundred Fifty and no 100 Dollars to Harry Herberger by H. L. Mays, J. E. Spiers and Thos. Spiers, the receipt and sufficiency of which is acknowledged, it is hereby covenanted and agreed by and between said Harry Herberger and H. L. Mays, J. E. Spiers and T. Spiers, that no action will be instituted or • maintained by said Harry Herberger against said H. L. Mays, J. E. Spiers & T. Spiers because or on account of anything concerning or relating to a certain accident, whereby said Harry Herberger suffered severe and permanent personal injuries and property damage on or about the 28th day of September, 1930.
“It Is Further Covenanted and Agreed That this instrument shall never be construed as a release nor the execution evidenced as an accord and satisfaction.
“Witness My hand and seal this 30th day of October, 1930.
“(Signed) Harry Herberger (Seal)”

It is also assigned as error that the court, on the ' trial of the cause, refused to admit in evidence the written instrument above set forth. It is the contention of the appellant that H. L. Mays, J. E. and Thomas Spiers were joint tort-feasors with the appellant in the tort charged in the declaration which is alleged to have resulted in appellee’s injuries; and that the written instrument shows a settlement of appellee’s cause of action by several parties who were joint tort-feasors with appellant; and that a settlement made by one joint tort-feasor for the injuries and damages sustained by the commission of a tort, operates as a discharge of the liability of the other tort-feasors.

It is sufficient to say concerning this contention that the written agreement referred to does not sustain appellant’s assertion that the parties to the agreement who paid the $1,250 to appellee, which was accepted by him under the agreement referred to, were joint tort-feasors with the appellant. The agreement merely recites that in consideration of the $1,250 the appellee will' not institute nor maintain any action against the parties mentioned on account of or concerning or relating to the accident in question, whereby the appellee suffered severe and permanent personal injuries. The language in the instrument does not imply any joint liability of appellant concerning which the appellee agreed not to sue or maintain the legal action charged in the declaration against the appellant; and it is clear from the declaration itself that the charges of negligence made therein do not refer to the same liability. We are of the opinion, therefore, that the written instrument which was embodied in the special pleas did not contain any matters which would be a defense to the appellee’s right of recovery in this action and that the demurrer was properly sustained to the special pleas and that there was no error in ruling out the written instrument on the. trial.

It is also contended by the appellant that there is no evidence of negligence on the part of the appellant’s servant, the driver of the truck in question; and that therefore the court should have directed a verdict finding the appellant not guilty. The driver of appellant’s truck testified on the trial that he hung a red oil lantern on the rear end of the trailer and that he saw the lantern burning shortly before reaching the scene of the collision. His testimony on this point is as follows:

“We carry a lantern for a tail light. I looked at the rear end of the trailer. This was about a quarter of a mile from the railroad tracks and there was a lantern on the rear trailer and it was burning. There was glass on this lantern and its color was red. It was an oil burning lantern. ... At the time I came around the curve a quarter of a mile from the scene of the collision, the red lantern was hanging on the rear, of the trailer.”

On cross-examination lie said:

“I didn’t get off at the corner to see if this lantern was burning. I could see it plain. I looked around when I turned the corner and made the curve. I could see it from the cab in front. I had two trailers on that night. I am not sure, but I think I put the lantern on at Gillespie. That is the only tail light I had. ’•’

The Motor Vehicle Act requires not only a red light on the rear of the trailer but also a red light on each motor vehicle or trailer and which lights “shall be so situated as to throw a red light visible in the reverse direction.” Cahill’s St. ch. 95a, ¶ 17.

Whether .the red oil lantern testified about by the driver, was burning at the time of the collision; and whether it was so situated as to throw a red light visible in the reverse direction from that which the truck and trailers were going, and-also whether the light testified about was such as complied with the requirements of the law, were questions of fact for the jury to determine; and the court therefore properly overruled the motion to direct a verdict. The evidence in the record shows negligence in failing to comply with the requirements of the Motor Vehicle Act; and tends to show that appellant’s failure to comply with the requirements of the law created a dangerous condition to travelers along the public highway, approaching the rear of appellant’s truck and trailers.

Another contention made by the appellant for reversal of the judgment is that the appellee was guilty of contributory negligence. This was also a question for the jury to determine; and the determination of the jury was .adverse to appellant’s contention. Our conclusion from the evidence is that the jury were warranted in the finding which they made.

Another reason urged by appellant for reversal of the judgment is that a certain part of- the argument of counsel for appellee on the trial was prejudicial. The part referred to is as follows:

“Mr. Stone: Are we going to permit these trucks to use our hard roads ? There should be a law against it. Personally I am opposed to these monstrous trucks being seen upon our hard roads.
“Mr. Pefferle: I object to that as an attempt to create prejudice in the mind of the jury against the truck—
“The Court: Objection sustained. Trucks have the same right on the hard road that automobiles do. Proceed with the argument.”

The court sustained an objection to the statement made by appellee’s counsel, and supplemented its ruling with the remark: “Trucks have the same right on the hard roads that automobiles do.” The remarks of counsel to which the court sustained an objection were merely the expression of opinion, which though improper as a part of an argument in the cause, we conclude were not calculated to prejudice or mislead the jury in the consideration and determination of the real issues submitted for their determination; and therefore there is no reversible error involved in this feature of the case.

The appellant also complains that there is error in the giving of the appellee’s instructions and in the refusal of some of appellant’s instructions. We find, however, that the appellee’s instructions are substantially a correct statement of the law as applicable to the issues presented to the jury for their determination and to the facts proven. We find no error in the refusal of appellant’s instructions, inasmuch as the matter contained in the refused instructions, to which the appellant was entitled, was given to the jury in other instructions. The record does not disclose any reversible error. The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Shurtleff

text:
    The First National Bank of Charleston, Illinois, Plaintiff in Error, v. John M. White et al., Defendants in Error.
    Gen. No. 8,625.

      Heard in this court at the April term, 1932.
    Opinion filed October 17, 1932.
    Rehearing denied, opinion modified, refiled and adhered to January 3, 1933.
    A. C. & Ben F. Anderson, for plaintiff in error.
    Bryan H. Tivnen, for defendants in error; Thomas B. Figenbaum and Carus S. Icenogle, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is a petition or bill of complaint brought by plaintiff in error against appellees, in pursuance of the provisions of sections 27 to 31 of The Uniform Partnership Act, passed in 1917. Cahill’s St. ch. 106a, 1TCI27-31. John M. White and Fred White were co-partners, in Coles county, doing business under the name of The White Heating and Plumbing Company, and on July 21, 1930, plaintiff in error caused a judgment by confession to be entered in the Coles county circuit court, for the sum of $16,962.36, against the said John M. White, and an execution thereon to be placed in the hands of the sheriff of Coles county, on the same day. On July 23,1930, plaintiff in error filed its petition or bill of complaint, in pursuance of the provisions of section 28 of said Uniform Partnership Act, averring that on July 21, 1930, it recovered a judgment against John M. White in the circuit court of Coles county, Illinois, for $16,962.36 with costs; that an execution was issued and delivered to the sheriff of Coles county on that date; that White has no property subject to execution; that the original bill was filed July 24, and is lis pendens, in fact, was filed July 23, 1930; that at the time the judgment was rendered, John M. White and Fred White were copartners, under the name of White Heating and Plumbing Company, and had a large stock of merchandise and accounts receivable amounting to $21,000; that after an adjustment of the equities between the partners and payment of debts there will be.several thousand dollars left as the interest of John M. White in the partnership; that under the Uniform Partnership Act no levy can be made on the interest of John M. White in the partnership, and that this action is the only remedy in the premises; makes John and Fred White, individually and as copartners, defendants, waives answer under oath, prays that the court decree that the partnership existed, on a hearing, and cause an account to be taken with respect to what interest John M. White has in the partnership, and that a receiver he appointed if necessary and proper; that the court decree that the interest of John M. White be charged with the lien of the judgment as the same may be found on an accounting to be taken, and decree that the interest, if not redeemed, be sold, and the proceeds be applied on said judgment as provided in the Uniform Partnership Act..

Defendants, John M. White and Fred White, answered the petition or bill, generally denying all the material allegations in the petition, but specifically stating that when this bill or petition was filed Fred White and John M. White were not partners and denied the relief sought.

Proofs were submitted by which all of the allegations of the petition or bill were established, except the proofs showed that on July 22, 1930, after the execution had been placed in the sheriff’s hands, John M. White and Fred White had entered into a contract for the consideration of $1, by which John M. White had conveyed to his brother Fred White, all of his, John M. White’s, interest in the partnership, and that the copartnership had been, on July 22, 1930, dissolved.

The court dismissed the petition or bill for want of equity, and plaintiff in error has brought the record to this court by writ of error.

The only question in this case, argued or discussed is: Did defendants in error have a right to dissolve the partnership after the execution was placed in the sheriff’s hands and before the bill or petition, under section 28, cited, was presented to the court?

The provisions of the statute having a bearing upon this case are sections 27 to 31 of the Uniform Partnership Act, Cahill’s St. ch. 106a, ¶¶ 27-31, and are as follows:

“27. (1) A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with his contract the profits to which the assigning partner would otherwise be entitled.
“(2) In case of a dissolution of the partnership, the assignee is entitled to receive his assignor’s interest and may require an account from the date only of the last account agreed to by all the partners.
“28. (1) On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him' in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
“(2) The interest charge may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
“(a) With separate property, by any one or more of the partners, or
“(b) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.
• “ (3) Nothing in this Act shall be held to deprive a partner of his right, if any, under the exemption, laws, as regards his interest in the partnership,
“29. The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.
“30. On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.
“31. Dissolution is caused:
“(1) Without violation of the agreement between the partners,
“(a) By the termination of the definite term or particular undertaking* specified in the agreement,
“(b) By the express will of any partner when no definite term or particular undertaking is specified,
“(c) By the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking.”

Under the law as it existed prior to the passage of this act, a creditor having a judgment and execution against an individual member of a partnership could levy his execution against the individual interest of the judgment debtor in the partnership estate and sell such interest, but the purchaser could not, in any manner, interfere with the partnership property until there had been an accounting of the partnership, the partnership debts first were paid and until the partnership affairs were settled and it was determined what the interest of the judgment debtor, as a partner, was. (Rainey v. Nance, 54 Ill. 29; Chandler v. Lincoln, 52 Ill. 74; Sindelare v. Walker, 137 Ill. 43, 45; Swan v. Gilbert, 175 Ill. 204, 211; People v. Zangain, 301 Ill. 299, 304.)

In Chandler v. Lincoln, supra, the court held: “The interest of one partner in the partnership property may be sold under execution against him for his individual debt, and that interest, whatever it may be, will pass to the purchaser, to be held, however, subject to all the rights of the other partner, so that if, upon a settlement of the partnership affairs, the debtor partner would have been entitled to nothing had no sale taken place, then the purchaser will take nothing by his purchase.”

In Swan v. Gilbert, supra, the court held: “In Bates on Partnership (secs. 1111, 1112,) it is said: ‘The buyer at an execution sale cannot acquire a better title than the debtor partner had, and therefore does not acquire an absolute title to the chattels sold nor priority over partnership creditors, but his title is subject to the partnership debts and equities between partners, and he cannot be a partner by reason of the delectus personarum. He becomes a claimant, in common with the co-partners, for a share of the surplus. It follows, that in case the partnership is insolvent, or the debtors’ and co-partners’ equities absorb the debtors’ share, the buyer of the interest gets nothing; hence the sheriff is not liable if he allows the effects to be applied to the payment of the partnership creditor, nor even if he release the levy in case of insolvency, but as he does so at his own risk it is a very unsafe practice. ’ ”

And we see, under the former law, the sheriff could levy upon the partnership interest, but it was very uncertain when, if ever, that interest could be determined. Under the former law, the execution when placed in the sheriff’s hands, becomes a lien against the goods and chattels, lands and tenements of every person against whom any judgment has been or shall be hereafter obtained, in any court of record (sections 9 and 10, chapter 77 of the Revised Statutes, Cahill’s St. ch. 77, ¶¶ 9, 10) and these sections of the statutes have been in no way abrogated or interfered with by the Uniform Partnership Act, Cahill’s St. ch. 106a.

Subsection c of section 25 of that act provides: “A partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.” This means only that the specific partnership property cannot be taken and seized upon attachment or execution. This construction is strongly accentuated by the provisions of subsection c of section 31 cited, supra: “Dissolution (of a partnership) is caused ... by the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking.”

We construe this to mean that when any partner has suffered his interest to become charged for his separate debts by the entry of judgment and the placing of an execution in the sheriff’s hands, he has no right to have a voice or vote in the dissolution of the partnership, but under other sections of the act the partnership is continued and the judgment debtor’s interest in the partnership remains intact, subject to the provisions of section 28 as herein recited, and section 30 expressly that “on dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed. ” It is the opinion of this court that the reasonable construction of the act is that one suffers his interest to be charged for his separate debts when he permits a judgment to be taken against him and execution to be placed in the sheriff’s hands. The interest of the separate partner, under section 26 of the act, is personal property, and the provisions of section 28 of the act merely take the place of the levy and sale, as pursued under the former act. It follows that the contract entered into between John M. White and Fred White, defendants in error, of July 22,1930, may have, by the expressed will of Fred White, dissolved the partnership; it did not release the interest of John M. White from the lien of said execution or pass any interest of John M. White in said partnership to Fred White, except as it may have passed, subject to the payment of said judgment debt.

The decree of the circuit court of Coles county is, therefore, reversed and the cause remanded, with directions to make a full accounting of the interest of John M. White in said partnership, under the statutes as cited, in accordance with the views expressed in this opinion.

Reversed mid remanded with directions.

On petition for rehearing it is only necessary to say that defendants in error tried one case in the circuit court and sought to raise another issue upon review. The bill alleged a'partnership and prayed an accounting. The answer denied the judgment, denied that any execution was issued, denied the defendants in error were partners, denied the operation of the Uniform Partnership Act and stated that when the bill was filed Fred White and John M. White were not copartners. Plaintiff in error fully established its bill and was entitled to an accounting. Upon the proofs, counsel for defendants in error stated: “There is no question but that the partnership existed July 22nd (1930), but that has nothing to do with it. ’ ’ The witness John M. White testified: “I was a partner up to the contract, but all my stuff was used up. In fact I was a partner. I wrote the letter, complainant’s Exhibit 4. Tes, 1 was a partner until Fred and I made this agreement, and we made it to dissolve the partnership. Wanted rid of the thing. This agreement was made after judgment was taken, I believe July 22nd.”

The Whites were asked on the witness stand if they would bring in their books. In the examination of the same witness the following took place:

Q. “Now let us see the Charleston state of the account, before you made the agreement, I want to see the audit.
“Mr. Tivnan: Tell me something else yon want to see with reference to these books.
“Mr. Anderson: I want to see the state of their mutual accounts, to see if there is anything due John White.
“Mr. Tivnan: I can show you the individual accounts of each. The only thing about the accounts is, that the accounts would show these conditions, or things, you are showing orally, and would involve going through several years of work. ’ ’

Mr. Anderson suggested case might go to master. The court so remarked.

“Mr. Tivnan: But there is no partnership.

“Mr. Anderson: I think we still have a partnership notwithstanding the agreement.

‘ ‘ The Court: This is the only issue bef ore the Court, whether the partnership exists.”

Mr. Tivnan says he does not care to cross-examine, and immediately thereafter the record shows: “Upon a hearing the bill is dismissed for want of equity.”

The court refused to require an accounting but held that because the contract dissolving the partnership was entered into on July 22, 1930, before the bill was filed, plaintiff in error stated no equity in its bill, the execution having been issued on July 21, 1930. Nevertheless, counsel for the defendants in error in the petition for rehearing state: “But, a most careful study of the opinion filed in this cause impels us to the conclusion that vital and controlling facts have been overlooked or misapprehended by the court, and that the law announced in the opinion, though accurate, is not decisive upon the facts and leaves us without any decision upon the facts. ’ ’

It is true there never can be a decision upon the facts until there is an accounting, a full accounting of the partnership, which the court refused to permit upon the.insistence of counsel. It is true that John M. White testified he had drawn out all of his interest in the partnership, but he produced no books and the court refused to compel a production of the books, but held that the contract having been entered into before the filing of the bill, there was no equity in the bill.

Objection is made to the language in the opinion as follows: “That the contract of July 22, 1930, may have dissolved the partnership, but did not release the interest of John M. White from the lien of said execution. ’ ’

This conclusion may or might be true under clause b of par. 1 of section 31 of the act: “Dissolution is caused: . . . b. By the express will of any partner when no definite term or particular undertaking is specified.”

It would not follow, however, that the rights of a judgment creditor theretofore attached would be abrogated, whether the personnel of the partnership had been dissolved or not. The- rights of the copartner would nevertheless always remain subject to the satisfaction of the judgment, until such rights were determined and such satisfaction made. This would not compel two or more persons to remain in partnership until every possible judgment and execution, greát or small, had been satisfied and disposed of.'

The only question in this cause is whether the rights of the judgment creditor attach by virtue of the judgment and execution, or whether such rights in the property are wholly dependent upon filing a bill. The Uniform Partnership Act, in the view of this court, has merely done away with the “levy and sale” upon execution and provided a remedy by a receivership.

Plaintiff in error established ample ground for an accounting, but did not get an accounting.

The former opinion is modified by the foregoing and adhered to.