author: Mr. Presiding Justice Stone

text:
    Jesse W. Mitchell, Appellee, v. Louisville and Nashville Railroad Company, Appellant.

      Culbertson, Jr., J., dissenting.
    Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Rehearing denied June 18, 1940.
    Farmer, Klingel & Baltz, of Belleville, for appellant.
    Jos. B. McGlynn, of East St. Louis, for appellee; John J. Hoban, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Plaintiff, a resident of Covington, Kentucky, while employed as a switchman by defendant in the Decoursey Yards, near Covington, Kentucky, was injured on the 3rd day of July, 1938, by being knocked from the top of a ladder on the side of a freight car that he was then engaged in switching, by the alleged negligence of the defendant; thrown to the ground and injured. He brought suit in the city court of East St. Louis in St. Clair county, under the provision of the Federal Employers’ Liability Act, conferring concurrent jurisdiction upon State and Federal Courts and allowing the plaintiff to lay the venue of such action in the district where the defendant shall be doing business at the time of the commencement of the action.

There was a verdict for $32,400 and the defendant appeals from the judgment for this amount. The suit was tried upon an amended complaint, which charged that plaintiff was injured by the alleged negligence of the defendant company, while it was engaged in interstate commerce and the answer of the defendant thereto, denying that the plaintiff and defendant were engaged in interstate commerce at the time of plaintiff’s injury.

The accident occurred around 2:50 on the morning of July 3, 1938 in the Decoursey Yards of the defendant, near Covington, Kentucky. These yards were known as classification yards, where freight trains were broken up and classified preparatory to being made up into other trains. The general direction of the yards is from north to south. The yards are made up of a number of yards designated as yard “A” “B” “D” or 26 and others. Between yards “A” and “B” are what are called the main hump track and lower hump track, which are in the main parallel, but of inequal distances apart. In yard “B,” starting from the west side, the switch tracks are numbered from 1 to 12; number 12 being an extension of the main hump track and being also known as the lead track. These hump tracks are gravity tracks to which cars are hauled from yard "A” by an engine; the cars are run into various tracks in yard “B” by force of gravity, south of the crest of the hump.

The crews working in this yard are called hump crews, and consist of an engineer, fireman, switch tenders, car riders, and an employee who follows the engine and directs the movements of cars being placed on the various tracks. The movement of the cut of cars involved here was directed by the plaintiff, who was the “follower of the engine” of this crew. It was his duty to signal the engineer and the duty of the engineer to obey such signals. Early on the morning in question one car had been picked up by the engine on track number one, and seven or eight cars on tracks six or seven. There seems to be no controversy that as they came to the lower southbound hump, plaintiff gave a stop signal and the engineer stopped. This signal was given by lantern. The plaintiff then gave a come-ahead signal, which seems to have been for the purpose of taking up the slack that had run out in the train; a stop signal was then given by the plaintiff in order to effect the cut of the seven or eight cars, taken from tracks six or seven. The plaintiff then testified that he gave the engineer a back-up signal, and that the engineer instead, moved the engine forward, causing the cars to run away. Caldwell, the engineer, and Webster and Doming, other members of the train crew, testified that the signal given by the plaintiff was a go-ahead signal. Plaintiff then ran after the cut of cars alleged to be runaways, boarded one of them and started climbing the ladder on the side of the car and had about reached the top of the car, when the cut of cars on which he was then riding, collided with another cut of cars standing stationary on the south end of the track. Plaintiff was thrown over against the crossover rail, and sustained a compression fracture of the first lumbar vertebra.

Defendant contends that there is no liability on its part, because of the doctrine of assumed risk, and contributory negligence on the part of the plaintiff, arguing that he was in a place of safety and voluntarily and unnecessarily went to a place of peril. Plaintiff earnestly contends that the doctrine of imminent peril applies; that he was trying to protect fellow employees alleged to have been down on 26 and the company’s property from injury, and counsel say that if that theory does not apply, then plaintiff has no cause of action. The question of contributory negligence on the part of the plaintiff is a question of fact for the jury. Devine v. Pfaelzer, 277 Ill. 255, aff’g 195 Ill. App. 221; Leiter v. Kinnare, 68 Ill. App. 558; Pienta v. Chicago City R. Co., 284 Ill. 246; Illinois Cent. R. Co. v. Anderson, 184 Ill.294.

The question of assumption of risk by the employee is also a question of fact for the jury. Chicago Screw Co. v. Weiss, 203 Ill. 536; Shoukair v. Sargent Co., 235 Ill. 509; Chicago L. S. & E. R. Co. v. Cukravony, 132 Ill. App. 367; Davenport v. Ziegler Dist. Collieries Co., 179 Ill. App. 552. So, also, is the question of whether plaintiff’s conduct, in time of alleged imminent peril, constituted contributory negligence. Galena & C. U. R. Co. v. Yarwood, 17 Ill. 509; Chicago & A. R. Co. v. O’Leary, 126 Ill. App. 311; Chicago Terminal Transfer B. Co. v. Kotoski, 101 Ill. App. 300, aff’d 199 Ill. 383.

Other questions are raised such as the correctness of instructions, illegality of the panel of jurors drawn, improper conduct of counsel, and the admissibility of certain expert, medical testimony. These we do not deem it necessary to discuss, or to pass upon, as the judgment must be reversed for other reasons.

The burden was upon the plaintiff in this action to establish the fact that the defendant, at the very time when its employee through its alleged negligence received the injuries complained of, was engaged in interstate commerce, the presumption being, in the absence of such proof, that the employer while in the use and operation of its railway within the State of Kentucky, was engaged in intrastate commerce. Terry v. So. Pacific Co., 34 Cal. App. 330,169 Pac. 86; Bradbury v. Chicago R. I. & P. R. Co., 149 Iowa 51, 128 N. W. 1; Osborne v. Gray, 241 U. S. 16, 36 Sup. Ct. 486, 60 L. Ed. 865. In the production of such required proof it was necessary for the plaintiff in this case to show that one or more of the units in the train of cars, which defendant was engaged in moving along its tracks at the time of plaintiff’s injuries had been definitely accepted and designated by said defendant for interstate uses, and was moving at such time along the line of its or their destiny. Johnson v. Southern Pac. Co., 199 Cal. 126, 248 Pac. 501.

Plaintiff testified that he had instructions from the foreman to go down No. 1 track and get a car of perishables, to which, objection was made by the defendant. What plaintiff did and that he did it by the direction of his foreman was evidentiary, but that some one said at the time that one of the cars was a car of perishables was no evidence of what it in truth was. If the statement had been made by a bystander, it clearly would not have been evidentiary. The circumstance that it was made by the foreman, who directed the work to be done did not make it evidentiary. Mirkowicz v. Reading Co., 84 F. (2d) 537; Central R. Co. of N. J. v. Sharkey, 259 Fed. 144. The objection to this testimony should have been sustained. Plaintiff was then asked how he knew it was a car of perishables and in answer thereto testified that “it had a sticker on it, a yellow card, a card that we switch the cars by and it had spelled on it ‘perishable’ in red letters — then it has black letters on there too — the rest of the car is made up with pencil — it was marked ‘Memphis Line, from Cincinnati, Ohio’ is what was on the card.” To which testimony the defendant objected, but which was admitted by the court, apparently upon the theory that notice had been given the defendant to produce certain records; and upon their failure to do so, this alleged secondary proof was admissible. Based upon this card, plaintiff was permitted to testify that being carded, “Memphis Line” meant a car that goes to Memphis, or beyond there, from Cincinnati, Ohio; that its origin was Cincinnati, Ohio, and its destination Memphis, Tennessee and beyond, which was an attempt to prove that this car, was engaged in interstate commerce, at the time of the injury to the plaintiff. Upon no theory was this evidence competent. The giving of notice to produce records and failure to produce them does not justify the admission of incompetent evidence.

Even if this particular car did contain perishables, that raised no presumption as to its being used in interstate commerce. There' is no evidence that it was loaded except the testimony of plaintiff to the effect that he looked on both sides of the car and saw that it was sealed, and that he did nothing more than look at the carding on the car. There was no effort to show the authenticity of said card. There was no evidence to show at what time, at what place or by whose authority said card was placed upon said car, or that said car was being moved at that time by virtue of the instructions upon said card.

There is no evidence that the car was accepted for interstate shipment because of this sticker on the car, with its pencil markings, or that thereby interstate commerce had in any sense begun. Such an inscription by an unknown person, in our opinion falls short of an assignment to interstate shipment sufficient to bring the case within the Federal Employers’ Liability Act. It was not shown when the marks were placed on the car, or whether they had any connection with any present shipment or if it pertained to some previous shipment. This evidence was incompetent and objection by defendant should have been sustained. McCoy v. Southern Pac. Co., 29 Cal. App. (2d) 16, 83 P. (2d) 970; Wise v. Lehigh Valley R. Co., 43 F. (2d) 692; Johnson v. Southern Pacific Co., 199 Cal. 126, 248 Pac. 501.

In the McCoy case, 29 Cal. App. (2d) 16, 83 Pac. (2d) 970, which was brought under the Federal Employers’ Liability Act for injuries sustained when the plaintiff, a switchman fell from a box car, evidence that freight cars, which were being switched at the time of his injuries bore cards, which indicated that destinations of the cars were outside the State, was inadmissible on the issue as to whether plaintiff and defendant were engaged in interstate commerce at the time of plaintiff’s injuries, where there was no evidence showing the authenticity of the cards.

In the case of McCoy v. Southern Pac. Co., supra, the court said with reference to cards on freight cars, “Plaintiff testified that on car 88589, the bad order car, he saw a plain white card marked in pencil, ‘May 21, Portland to Newark, for salt loading’; that on another car which the engine had hold of at the time, there was a plain white card marked ‘Yuma, Arizona’; that on another such car, there was a card marked ‘Kansas City, Mo. ’; and that on another such car there was a plain white or gray card marked ‘D. S. K. for Ogden.’ There was not a particle of evidence showing the authenticity of said cards. There was no evidence to show when, where or by whom said cards were placed upon said cars or to show that said cars were moving under said cards at the time in question. ’ ’ The evidence there submitted was held incompetent.

It was testified to, that the car designated by plaintiff and his counsel as perishables, was picked up on tracks one or two and then seven or eight cars were picked up on tracks eight or nine. These latter were designated as “west enders.” Plaintiff was asked whether or not in the language and parlance of the employees of the railroad company, cars so designated had any particular significance. His answer was, “that cars carded as ‘west enders’ are cars going to connecting lines, maybe the Big Four, the Pennsylvania, the O. and 0., or any connecting line — cars from Cincinnati are called ‘west enders’ and cars intended for Cincinnati.” There is no evidence that any of this string of cars were so carded.

The witness Caldwell, the engineer, testified that he did not know what these seven or eight cars were, that he did not know if they were west enders. The witness Webster was asked if west enders were not cars destined for Cincinnati, Ohio, and his answer was, that part of them go in that direction, that they might go to Covington, Newport or any points north or east. There is no dispute, as to the fact that no through freight or passenger tracks pass through the yard where the plaintiff was engaged in switching at the time of his injury. This was designated as a classification yard, described variously as a yard where cars were classified as to their character, as to being coal cars, high cars, hoppers, gondolas, or box cars, and as a yard where trains were broken up, and classified, and new trains made up, going to points outside the yard.

Plaintiff testified that he would have eventually taken the car described as perishables back to number 12 track. With reference to the cars designated as west enders the following questions were propounded and the following answers given by the plaintiff:

Q: You knew cars were set in those tracks there until they were wanted?
A: At times.
Q: To get them out of the way there, isn’t that right?
A: At times.
Q: Those were empty cars you were setting in there?
A: Yes, sir, west enders.
Q: They were going to be left there, weren’t they?
A: Yes. Page 144 of record.

There is no evidence as to what train either cut of cars would have been attached to, or what the ultimate destination would be. Both plaintiff and his counsel during the course of the trial continued to designate the one car as perishable and the others as west enders, but this record does not show any definite destination as to any part of the train upon which plaintiff was working at the time of his injury, certainly it does not show any destination outside of the State of Kentucky.

In the case of Devine v. C. R. I. & P. Ry. Co., 266 Ill. 248, cited by counsel, the Supreme Court of Illinois indicated that slight evidence, uncontradicted, that the train upon which plaintiff was working at the time of the injury or death complained of, was engaged in interstate commerce, would be sufficient, upon which to base a finding that the case came within the Federal Employers ’ Liability Act. There the conductor of the train, in answer to the question, “Some cars going out of the State and some going to points in the State?” answered in the affirmative. In the instant case there is not even this amount of evidence on that point, that is competent and admissible. The record fails to show any competent evidence, which with all of its inferences, would reasonably tend to show that at the time plaintiff was injured he was engaged in interstate commerce or transportation.

At the conclusion of plaintiff’s case and again at the close of all of the evidence, defendant moved the court to instruct the jury to find the defendant not guilty. These motions were denied. This was error which calls for reversal of the judgment. For the reasons stated the judgment is reversed.

Judgment reversed.

Culbertson, Jr., J., dissenting.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Jefferson Trust and Savings Bank of Peoria, Appellant, v. W. Heller and Son, Inc., et al., Appellees.
    Gen. No. 9,377.

      Heard in this court at the October term, 1938.
    Opinion filed April 26, 1940.
    Rehearing denied June 18, 1940.
    Shelton F. McGrath, Theodore Baer and Bartley & Youngs, all of Peoria, for appellant.
    Knoblock & Sloan, of Peoria, for appellees; John F. Sloan, Jr., of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On September 5, 1933, W. Heller & Son, a corporation, by I. M. Heller, its president, and Sam Heller, its secretary, executed its note payable to the order of Jefferson Trust and Savings Bank of Peoria for the sum of $17,261.87 due 90 days after date, with 7 per cent interest from date until paid. Payment of this note was guarantied by Rufus A. Heller, Sam Heller and Israel M. Heller, who executed a written guaranty and warrant of attorney authorizing a confession of judgment against them on the back of said note. On December 23, 1933, the circuit court of Peoria county rendered judgment by confession on this note against W. Heller & Son, Inc., Rufus A. Heller, Sam Heller and Israel M. Heller for $18,602.05. Subsequently a motion to open up the judgment and allow the defendants to plead was filed and from an order denying that motion the defendants appealed to this court, which reversed the order of the circuit court. Jefferson Trust do Savings Bank v. W. Seller & Son, Inc., 280 Ill. App. 399. After the cause was redocketed in the trial court, pleas were filed and after the issues had been made up a jury trial was had, resulting in a finding and judgment for the defendants, from which the plaintiff has appealed.

From the pleadings and evidence it appears that prior to the 5th day of February, 1931, the State Trust and Savings Bank was a commercial bank organized under the banking laws of this State and doing a general banking business in the city of Peoria, with a capital of $200,000. In this record this bank is referred to as the old bank and will be so called in this opinion. On February 5, 1931, by order of the auditor of public accounts, this bank, being insolvent, closed and never thereafter reopened for business. At this time its assets amounted to $1,864,210.10 and its deposits $1,371,111.74. W. Heller and Son is an Illinois corporation, engaged in the junk and scrap iron business in Peoria, with a capital stock of $50,000, which in 1931 was owned by Israel M. Heller, Rufus A. Heller, George Heller, brothers, and Esther Heller, the wife of Sam Heller, another brother. Each of said stockholders owned 125 shares of the capital stock of said corporation. Its board of directors was composed of Israel M. Heller, Rufus A. Heller and' George Heller. Israel M. Heller was president, Rufus A. Heller, vice-president, Sam Heller, secretary, and George Heller, treasurer.

When the old bank closed 205 shares of its capital stock stood in the name of Sam Heller on the books of that bank, 50 shares of which belonged jointly to Sam Heller and Harry A. Frankel. Albert H. Kahler was also a stockholder in the old bank as was George A. Shurtleff. These men, with others, in order to relieve the stockholders of the old bank of- their stockholders ’ liability and to enable the depositors of the old bank to be paid in full, organized a new bank known as the Jefferson Trust and Savings Bank, appellant herein, and also the Peoria Investment Company, both Illinois corporations. The Investment Company had a capital of $200,000 and the stockholders of the old bank, in lieu of paying their stockholders’ liability of $200,000, subscribed for an equal amount of stock in the Peoria Investment Company. Sam Heller, upon the organization of the Investment Company, subscribed for 155 shares of stock therein, and he testified that when he did so, Harry A. Frankel fully explained the plan to him, that he understood it perfectly and thought the purchase of stock in the Investment Company would be a good investment. He did not have, however, the necessary $15,500 cash to pay therefor and neither did some of the other stockholders of the old bank. According to Sam Heller’s testimony Frankel told him that he could pay for it by executing his personal note, which would be accepted in lieu of cash and on October 17,1931, Sam Heller executed a judgment note for $15,500, payable on demand to the order of John C. Wynd, trustee, said note bearing 6 per cent interest from date until paid. This note was executed by Heller to secure the other makers of the Causey and Kahler notes aggregating $33,500 hereinafter referred to.

On October 23,1931, Sam Heller and nine other persons including Albert H. Kahler, George A. Shurtleff, Harry A. Frankel and John C. Wynd, who had subscribed for stock in the Peoria Investment Company, executed their note payable to the order of E. M. Kahler for $12,500 30 days after date and on the same day Albert H. Kahler, George A. Shurtleff, Harry A. Frankel, John C. Wynd, Chester Swords and Sam Heller executed their note for $21,000 payable 30 days after date to Florine Causey. It was for the makers of these Kahler and Causey notes that John C. Wynd, payee of the note of $15,500 executed by Sam Heller on October 17, 1931, acted as trustee. The proceeds of these Kahler and Causey notes aggregating $33,500 was paid to the Commercial-Merchants National Bank of Peoria and this bank, on October 28, 1931, acting as trustee for the stockholders of the Investment Company and having received the $200,000 from the sale of stock in the Investment Company credited the account of appellant with that sum. On the previous day appellant received its authority to open for business but did not do so until November 25,1931. Under the provisions of the contract dated October 28, 1931, executed by the old bank and by the Investment Company and by appellant, objectionable assets of the old bank having a book value of $693,098.38 were transferred to the Investment Company in consideration of this $200,000 cash. The remaining assets of the old bank, amounting to $1,171,111.74 were acceptable assets both to the State auditor and to the directors of appellant so that when appellant opened for business it had this $200,000 cash received from the Investment Company, together with the approved assets of the old bank, amounting to $1,171,111.74, both aggregating $1,371,111.74, and it had, under the provisions of the contract, assumed all of the deposit liabilities of the old bank, aggregating $1,371,111.74.

After the appellant opened for business E. M. Kahler and Florine Causey sold these notes aggregating $33,500 to appellant, and on December 28, 1931 these notes then in the hands of appellant and belonging to it were paid in part by the transfer of the Heller note of October 17, 1931 for $15,500 by John Wynd, trustee, the payee therein, who indorsed it without recourse and delivered it to appellant, who accepted it and credited the proceeds thereof on the Kahler and Causey notes.

Sam Heller testified that six or seven days after October 17, 1931, Harry A. Frankel informed him that he was having some trouble handling Heller’s personal note of $15,500 and requested him to get the Heller Corporation to sign it. Heller stated that the córporation had nothing to do with it, that the obligation was his personal one and declined. On November 3, 1931, Frankel, Shnrtleff and Albert H. Kahler came to the office of W. Heller and Son and had with them the note Sam Heller had executed on October 17,1931. On this occasion, according to Sam Heller’s testimony, Frankel said “Now, Sam, you are holding the key to the combination. The bank can open up tomorrow if you will get the corporation signature on this note.” To this Heller testified that he replied: “This is a personal matter between the bank and myself and to please keep the corporation out of it.” Kahler then said: ‘ ‘ There is no harm in doing it. It will just help open up the bank that much quicker. A personal note can not be considered bankable. At this time the bank examiners control the situation. We have to do as they say. When the bank opens up we will be the bosses of the situation, at which time you will get the corporation note back and we will take your personal note in exchange. ’ ’ In reply to a statement there made by Rufus Heller to the effect that Frankel, Shurtleff and A1 Kahler were not going to get the Heller corporation to put its name upon this note, Harry Frankel said: “What I am asking the corporation to do has no meaning as far as the corporation is concerned. You are just accommodating the bank to help them open earlier. A personal note is not bankable, the corporation note, if you would sign it, and make it a corporation note would be bankable and let us open up the bank tomorrow, won’t you help us along that way? If you will put the corporation name to this paper, I will sign it to show you that there is nothing wronger no harm can be done and I will get Bob Silberstein to sign it. This note is an accommodation to the bank and you will never have to pay it. It will be exchanged just as soon as the bank opens up for a personal note signed by you (Sam Heller), I don’t understand why you hesitate. You are among friends. You know you have been taken care of before and you will be taken care of, as far as any trouble is concerned, in the future.” Sam Heller thereupon told I. M. Heller that he didn’t see how the company could go wrong in helping the bank to open and I. M. Heller wrote beneath the name Sam Heller appearing thereon the words: “W. Heller and Son, by I. M. Heller, Pres.” At the same place and immediately thereafter Harry A. Frankel placed his name on the back thereof as did also I. M. Heller, and thereafter Robert Silberstein placed his name on the back beneath I. M. Heller’s name, doing so after he had been advised by Frankel that the purpose was to make the note bankable and that after the bank opened up and was out of the charge of the bank examiners it would accept a note signed by Sam Heller only. It was this note so signed originally by Sam Heller on October 17, 1931 and subsequently signed by the corporation and thereafter indorsed by Harry A. Frankel, I. M. Heller and Robert Silberstein that John C. Wynd, trustee, the payee therein, indorsed without recourse and delivered to appellant on December 28, 1931 and the proceeds thereof were credited by appellant on the E. M. Kahler and Florine Causey notes.

G-eorge A. Shurtleff, Albert H. Kahler and Harry A. Frankel were directors of appellant and interested in its organization and Albert H. Kahler was treasurer of the Investment Company. In March, 1932, appellant notified the makers of the $15,500 Heller note of October 17, 1931 that it held this note and that it was due. Rufus Heller and Sam Heller thereupon called at the bank and conferred with E. N. Batchelor, the then-cashier. In this controversialism they stated to the cashier that this note, so far as the corporation and indorsers were concerned, was an accommodation note and what Harry Frankel had told them. Mr. Batchelor advised them that Frankel had nothing to do with running the bank, that he, Batchelor, knew nothing about any such an arrangement, that the bank had purchased the note for its full value on December 28th or 29th and expected to collect the note from the corporation and that he, Batchelor, wanted it determined then and there whether it had a good note or not and that if there was to be any question about it, the bank would put the note in judgment and let the court decide. Shortly thereafter Sam and Rufus Heller met Mr. Batchelor in Mr. Shurtleff’s office and Shurtleff stated to them that he knew of no arrangement which had been made with the Hellers about substituting an individual note of Sam Heller for the corporation note. Mr. Shurtleff then advised'the Hellers that the bank had instructed him, as its attorney, that it would not accept a renewal thereof but for him to take judgment on the note unless the Heller Company would execute a new note, furnish the bank with a corporate resolution, pledge to it the 155 shares of stock in the Investment Corporation and in addition place thereon an indorsement by some of the members of the firm. On March 14, 1932, a renewal note was executed by the corporation as sole maker and payment thereof was guaranteed by I. M. Heller, R. A. Heller and Sam Heller, and a resolution purporting to be executed by Sam Heller, secretary of the corporation, was furnished appellant. This resolution recited that at a meeting of the directors of W. Heller and Son held on March 14, 1932, a resolution was adopted authorizing Sam Heller as secretary of the corporation to execute the name of the corporation on certificate No. 133, evidencing that .said corporation was the. owner of 205 shares of the capital stock of the Peoria Investment Corporation and directing said Peoria Investment Corporation to issue in lieu thereof two certificates, one for 50 shares and one for 155 shares, that said certificate evidencing 50 shares be sold and the certificate for 155 shares be placed as collateral with appellant to secure the payment of the note executed that day by the corporation in the sum of $15,786.75. Subsequently said certificate No. 133 was so indorsed by the corporation and two certificates isued in lieu thereof, and the one for 155 shares issued to the Heller corporation was indorsed in blank by I. M. Heller, its president, acting for and on behalf of said corporation, and by Sam Heller, its secretary, and this certificate was duly delivered to appellant and accepted by it as collateral security for the payment of the $15,786.75 note. Rufus Heller and Sam Heller testified that no such resolution was ever passed by the board of directors of the corporation while Sam Heller testified that he signed the resolution but that it didn’t speak the truth. Frieda Courtney, a former employee of appellant, was called by appellees and testified that as she recalled either Mr. Kahler or Mr. Batchelor dictated the resolution to her in the bank and that she typed it, that she didn’t see it signed by Sam Heller but knew that he did sign it. Mr. Batchelor and Mr. Kahler testified that they never dictated this resolution or had anything to do with it and didn’t know who prepared it. Mr. Kahler testified that he never saw the resolution before the day he testified upon the trial of this case.

On June 12,1932, the corporation by I. M. Heller, its president, and Sam Heller, its secretary, executed a second renewal note in the sum of $16,023.55, the payment of this note was guarantied on the back thereof by Sam Heller, R. A. Heller and I. M. Heller. The note was a collateral note and referred to the certificate for 155 shares of the capital stock of the Peoria Investment Company then standing on the books of that corporation in the name of the Heller Corporation and this certificate was indorsed in blank by the Heller Corporation, its name being signed by I. M. Heller, the president, and by Sam Heller, its secretary. There were subsequent renewals of this note at 90-day intervals and on September 5, 1933, the note upon which this suit is based was executed. Each and every renewal note was executed by the corporation as sole maker, by I. M. Heller, its president, and by Sam Heller, its secretary. Rufus Heller and Sam Heller each testified that each of these renewal notes including the note sued on were executed at appellant’s banking house, and that prior to the execution of each of these notes they advised Mr. Batchelor, the cashier, that Frankel had promised them at the time the original $15,500 note was executed that the corporation note would be surrendered and that the bank would accept the individual note of Sam Heller. Mr. Batchelor testified that the Hellers never made any objection to the execution of any of these renewal notes except the first renewal in March, 1932 and that thereafter nothing was said about it. He further testified that the Hellers were not present in the bank when the note which forms the basis of this suit and which is dated September 5, 1933 was executed but that the renewal was effected by correspondence and this clearly appears from the letter from Mr. Batchelor to the Heller Company dated October 19,1933 and the reply of that company dated October 20,1933 and the letter of appellant to the Heller Company of October 21, 1933 with which the bank returned to the company the former note. While Sam Heller and Rufus Heller each testified that the Heller Company never had any interest in the stock of the old bank which stood on the books of that bank in the name of Sam Heller, it is apparent from a letter written to the old bank by Rufus A. Heller, acting for Sam Heller, on June 11, 1929 that 95 shares of the 205 shares of stock in the old bank which stood on the books of the old bank in the name of Sam Heller belonged to the Heller Corporation and dividends thereafter declared upon this stock were deposited to the credit of the Heller Corporation and the Heller Company used this stock to collateralize some of its loans with the Central National Bank and Trust Company of Peoria. The testimony of Sam Heller and Rufus Heller to the effect that the $15,500 note was executed by the corporation as an accommodation note was contradicted by Albert H. Kahler and George Shurtleff. Harry Frankel was called as a witness by appellees but was not interrogated about this matter. The evidence is further that in March, 1932, when the first renewal note was executed, Eufus A. Heller offered to pay appellant $2,000 if it would accept a renewal note not bearing the signature of the Heller Company. Appellant declined to do so.

It is first contended by counsel for appellant that the evidence discloses that the bank became the holder of the original $15,500 note in due course and it was therefore not subject to the defense that it was merely an accommodation note executed by the Heller Company without consideration and upon the promise that it would be later returned to the company which would accept in lieu thereof the individual note of Sam Heller. In this connection counsel insist that even though Shurtleff, Frankel and Kahler were instrumental in procuring the note and that it was executed by the Heller Company without consideration, still this was not the knowledge of appellant even though they were directors of the bank inasmuch as they were part owners of the note at that time and at the time the bank purchased it and under the law their knowledge of defects therein is not imputable to appellant. The authorities are to the effect that where an officer of a corporation deals with it in his own interest, opposed to its interest he is held not to represent it in the transaction so as to charge it with the knowledge he may possess, but which he has not communicated to it and which it does not otherwise possess of facts derogatory to the title he conveys. Seaverns v. Presbyterian Hospital, 173 Ill. 414. In the instant case this $15,500 note when negotiated to appellant belonged to Shurtleff, Frankel, Kahler and the other makers of the E. M. Kahler and Florine Causey notes and under the foregoing authority their knowledge that this note, so far as the Heller Company was concerned, was an accommodation one executed without consideration is not imputable to appellant. The record also sustains appellant’s contention that when appellant became the owner of this note, it paid full value therefor. The remaining question then in order that appellant may be held to be a purchaser in due course is whether it purchased this note before or after maturity. The evidence is that this note was signed by Sam Heller individually on October 17, 1931 and that it was payable to John Wynd, trustee, on demand. It was thereafter and on December 2 or 3, 1931, executed by the Heller Company and its payment guarantied by others. It was purchased by appellant on either December 28 or 29, 1931. Therefore it was negotiated 56 or 57 days after its execution by the Heller Company.

Section 53 of the Negotiable Instruments Law [Ill. Rev. Stat. 1939, ch. 98, §73; Jones Ill. Stats. Ann. 89.073] provides: “Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.” Section 192 [Ill. Rev. Stat. 1939, ch. 98, §215; Jones Ill. Stats. Ann- 89.215] of the same act provides: “In determining what is a ‘reasonable time’ or an ‘unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business (if any), with respect to such instruments, and the facts of the particular case.” Counsel for appellant contend that the question of what constitutes an unreasonable time in such a case is a question of law for the court. Counsel for appellees insist that it is question of fact for the determination of the jury.

In 10 C. J. S. 797, it is stated that “a transferee who acquires a demand instrument within a reasonable time after issuance may be a holder in due course and conversely, a transferee who acquires a demand instrument an unreasonable length of time after issuance occupies the position of a person to whom the note has been transferred after maturity and is not a holder in due course.” In 8 C. J. 1070 it is said: “Commercial paper payable on demand is not presumptively dishonored until the lapse of a reasonable time after payment thereof may legally be demanded; and what shall be deemed a reasonable time is generally a question of law for the court, although it is sometimes held a question of fact. The better rule, however, would seem to be that it is a mixed question of law and fact. ’ ’

In Nagle v. J. L. Hanson Co., 262 Ill. App. 160, the note upon which suit was brought was dated August 15,1927, and read: “ten days sight after date we promise to pay.” The evidence was that the note was negotiated by the payee to the plaintiff the latter part of November, 1927. On January 8, 1928 the plaintiff, through her bank, presented the note to the defendant and demanded that it be paid 10 days thereafter. Payment being refused, suit was instituted and it' was contended that the note being acquired by the plaintiff more than 10 days after its date, plaintiff acquired it long after it was due, and took it subject to all defenses but the court held that the note became due 10 days after it was presented to the maker for payment, provided the presentation for payment was made within a reasonable time after its date and that what was a reasonable time was a question of fact for the jury. Counsel for appellant insist that this is not a correct statement of the law and cite Stewart v. Smith, 28 Ill. 397. According to the opinion in that case the only question of real importance was whether the instrument declared on was a negotiable instrument under the statute as it then existed. The instrument was dated January 21, 1859, and indorsed January 26, 1859. The court held it was a negotiable instrument and said that it was only five days overdue when negotiated and that the question when a note, payable on demand, is to be deemed subject to every defense existing against it, is a question of law to be determined by the circumstances of each case and that a delay of five days in negotiating the note was not unreasonable nor was a delay of five months unreasonable in demanding payment.

After citing the section of the Negotiable Instruments Act which provides that where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course, the Supreme Court of Missouri, in Franklin Bank v. St. Louis Car Co., 321 Mo. 199, 9 S. W. (2d) 901, 60 A. L. R. 639, said: “The question of what is an unreasonable length of time with respect to a demand note is a mixed question of law and fact, whether the circumstances show an unreasonable length of time is a question of fact to be found by the jury. Whether, if true, such circumstances amount to an unreasonable length of time is a question of law to be determined by the court. 8 C. J. 1070. We are not called upon to determine as a matter of law whether or not a demand was made within a reasonable time. That question was determined by the jury under instructions and by their verdict they found that a reasonable time had elapsed, thus finding that plaintiff was not a holder in due course.” So in the instant case this question was properly submitted to the jury and under all the facts and circumstances as shown by this record we do not think that finding should be disturbed. In re Philpott’s Estate, 169 Iowa 555, 151 N. W. 825, it was held that whether a demand note had been negotiated an unreasonable time after issue.so that the holder was not one in due course, is a question for the jury. To the same effect is the holding of the Supreme Court of Connecticut in Tomlinson Carriage Co. v. Kinsella, 31 Conn. 268, where it is said: “We think we may well hesitate to follow the cases to the extravagant length of holding that a reasonable time is a question of law, depending on the particular circumstances of each case. If there is such a time, and it is a question of law ... it would seem that it ought to be known to the courts; and yet no court to our knowledge has attempted to fix it or declare what it is. But if it is a question of fact, depending upon the agreement and understanding of the parties, it would seem that it should be determined, like all other facts, by a jury, or by the court, where the issue is closed to the court, the court finding it in this case simply as a fact. ’ ’ There is no precise time when as a matter of law a demand note should be deemed to be dishonored. Under the evidence found in this record, we are unable to say that the jury were not warranted in finding that a reasonable time had elapsed at the time appellant became the owner of the original note and therefore not a holder in due course. There was no error committed in refusing to direct a verdict on this ground.

It was the contention of appellees upon the trial that the stock in the old bank and the stock in the Investment Company was the sole property of Sam Heller and that the indebtedness created therefor was solely his individual indebtedness and that the Heller Company executed the original note and all renewals thereof as accommodation maker only, and that it had no interest in the old bank or the Investment Company. The evidence however is that when the old bank closed the Heller Company had on deposit therein $2,200. The evidence is further that certificates evidencing the ownership of 95 shares of the 205 shares of stock in the old bank which stood in the name of Sam Heller had been indorsed by him and the old bank was so advised by a letter from the company dated June 11, 1929. By this letter the company requested that checks for dividends should be made to the company. Inasmuch as no transfer of this stock of record was made, the dividend checks continued to go to Sam Heller but the evidence is that they were indorsed by the Heller Company and credited to its account. Furthermore these certificates were, on or about December 20, 1929, hypothecated by the Heller Company to the Central National Bank and Trust Company as collateral security for a loan to it. The certificate of stock for 205 shares in the Investment Company was, as a matter of fact, originally issued to the Heller Company and by it indorsed and at the written request of the company a new certificate for 155 shares was issued by the Investment Company to the Heller Company and the president of that company, I. M. Heller, and its secretary Sam Heller indorsed it at the time the original note was first renewed on March 15, 1932. At that time it was lodged with appellant as collateral security for the payment of the renewal note and has continued to be held by appellant to secure the payment of each renewal note and was so held by appellant when the instant suit was commenced. Appellees’ explanation as to why the company executed the several renewal notes and why they were personally indorsed by Rufus A., Sam and Israel M. Heller was that Mr. Batchelor insisted upon it and they feared a lawsuit. When the note upon which this suit was brought was executed, Sam Heller testified that Rufus and he went to the bank, saw Mr. Batchelor and asked him how long the corporation would have to keep up signing renewal notes; that Batchelor told them he couldn’t release the corporation; that it was an affair in which Frankel was interested and that the bank was not going to become a party to it; that if there was any misunderstanding between Frankel and myself that then we should pay the note and sue Frankel. Sam Heller further testified: “After that conversation we signed the note and I took the note down to our place of business to have I. M. Heller sign it. I believe I brought it back that same day, and received the canceled note. I personally took this note up and gave it to the bank and they gave me back the canceled note.” Mr. Batchelor denied this conversation and testified that no protests were ever made by the Hellers except at the time the first renewal note was executed in March, 1932 and that the transaction concerning the last renewal in October, 1933 was entirely by correspondence and the letters of Mr. Batchelor, the' cashier of the bank, to the Heller Company of October 19 and 21, 1933 and the reply of the Heller Company inclosing the note sued on corroborate Mr. Batchelor and clearly indicate that Sam Heller was mistaken. We are unable to escape the conclusion that the testimony of Mr. Batchelor, when considered in connection with the documentary evidence found in this record, was entitled to great weight. Just why the note sued on was ever executed in view of Sam Heller’s testimony as to what occurred when it was executed is difficult to understand unless when it was executed appellees intended it to be a valid obligation of the maker and the several indorsers.

Regardless of what the situation was when the original note was executed the evidence found in this record inclines us to the belief that the company, by executing the renewal note in March, 1932, waived any defense it might have had to the original note and that there was a consideration for its doing so. The renewal note was not made to the original payee, John C. Wynd, trustee, but to appellant, as were all subsequent renewal notes. Appellant concededly paid full value for the original note when it acquired it in December, 1931. When the note of March 14, 1932 was executed and the original note surrendered, Sam Heller did not execute it as principal obligor or comaker, but as guarantor only, and he so executed all subsequent renewals. Rufus A. Heller testified that when the first renewal note was executed on March 14, 1932, he advised appellant that if it would accept a- note without the Heller Company being bound, he would pay the bank $2,000. Appellant refused. At this time Sam Heller was at least liable on the original note and appellant was entitled to have as security therefor 155 shares of stock of the Investment Company. The undisputed evidence is that rather than submit to litigation and have the question of the company’s liability then determined, the note of March 14, 1932 was executed. The stock in the Investment Company was issued to the company and by it duly assigned and delivered to appellant. The obligation of the company was thereafter repeatedly recognized. The evidence discloses that the Heller Company was never misled by appellant but that appellees with full knowledge of all the facts relied upon as a defense to the original note, executed the several renewal notes.

In our opinion, while this record is not entirely free from error, there was no reversible error committed by the trial court in the admission or rejection of evidence or in the giving or refusing of instructions, but the verdict of the jury is against the manifest weight of the evidence and the motion of appellant for a new trial should have been granted.

The judgment of the circuit court will therefore be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Wolfe

text:
    J. L. Hallford and B. L. Tockman, Appellants, v. J. E. Bairstow et al., Appellees.
    Gen. No. 9,521.

      Heard in this court at the February term, 1940.
    Opinion filed May 15, 1940.
    Rehearing denied June 18, 1940.
    Herman M. Silverstein, of Chicago, and Gerald C. Snyder, of Waukegan, for appellants; Gerald C. Snyder and William C. Burt, of counsel.
    Chancellor & Chancellor, of Chicago, and Hall & Hulse and John V. Mooradian, all of Waukegan, for appellee J. E. Bairstow; John V. Mooradian, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On April 7, 1937, J. L. Hallford, one of the plaintiffs, purchased from the legal holder, a master’s certificate for the sale of a farm issued in a mortgage foreclosure suit. The owners of the farm, at the time the foreclosure suit was brought, were Katherine E. Mohrmann, Joseph L. Mohrmann, Elizabeth Mohrmann Brewer, Anna J. Mohrmann and Emily L. Mohrmann. The time allowed to them by statute to redeem the farm from the sale expired on February 1, 1938, without redemption having been made by them. On April 30, 1938, defendant, J. E. Bairstow, claiming to be a judgment creditor of the Mohrmanns, paid to the sheriff of Lake county, in which the farm is situated, $11,999.20, the full amount for redemption. The sheriff filed a certificate of redemption levied on the real estate under Bairstow’s judgment and execution, and advertised the farm for sale on May 26, 1938. Shortly thereafter, Hallford presented his certificate of sale to the farm to the master in chancery, and demanded a deed to the premises, which demand was refused because of the purported redemption by Bairstow.

Hallford and the other plaintiff, B. L. Tockman, who admitted to be a judgment creditor of the Mohrmanns with statutory right to redeem the real estate from the foreclosure sale, on May 25, 1938, filed their complaint for an injunction to restrain the sheriff 'from conducting the sale under the alleged redemption by Bairstow. A preliminary injunction was issued, but subsequently the court sustained exceptions to the report of the master to whom the case had been referred, and who had found the equities in favor of the plaintiffs, and dissolved the injunction and dismissed the complaint as being without equity. The plaintiffs appealed to this court, and by order of one of the justices of this court, the injunction was ordered to continue in force until the further order of this court.

Bairstow claims he had the right to redeem from the sale as a creditor of the Mohrmanns under a judgment secured by him against them in the circuit court of Lake county, on April 30, 1938, on their judgment note for $15,000. The plaintiff, Tockman, whose judgment is senior to the judgment of Bairstow, did not redeem from the sale, and the time fixed by statute to redeem by a judgment creditor of the Mohrmanns expired on Monday, May 2,1938.

The plaintiffs charge in the complaint that the defendants, Bairstow and the Mohrmanns, conspired together and executed a confession note dated April 29, 1938, which purported to be for a consideration of $15,000; that in furtherance of the conspiracy Bairstow, on April 30,1938, entered a judgment on said note in his favor as payee of the note for $15,000, together with $100 attorney’s fee and $5 costs; that on the same day an execution was issued and delivered to the sheriff of Lake county; that the note was executed without any consideration, and is based upon a purported indebtedness of $15,000 to Bairstow, which did not exist. That the note was executed and the judgment obtained to extend the time allowed by law for the Mohrmanns to redeem, and contrary to the rights of the plaintiff, Hallford.

The complaint further alleges that the judgment obtained by Bairstow was fraudulent and for a fictitious and exorbitant amount for the purpose of bidding at the sheriff’s sale to be held on May 26, 1938, and thus defeat Tockman of each and every right to a successive redemption from any sale had under a judgment obtained upon a bona fide debt. The complaint alleges that the judgment of Bairstow was not for a bona fide debt actually existing and due Bairstow.

The plaintiff, Hallford, prays in the complaint that the master in chancery be compelled to execute a deed to him under the certificate of sale owned and held by Hallford.

The plaintiff, Tockman, prays in his complaint that the court may determine what amount, if any, was a bona fide debt due Bairstow and actually existing on the date of the entry of the judgment in his favor; that such proceedings may be had whereby, if there was in fact any bona fide debt existing on April 30, 1938, wherein Bairstow was a creditor of any of the Mohrmanns, and in the event of a redemption by Bairstow, he is entitled to, any amount, said amount may be determined and the right of Tockman to make successive redemption according to statute, may be preserved. The complaint is not defective, because it does not allege a tender by Tockman, or allege an offer to redeem by him. (Taylor v. Dillenburg, 169 Ill. 235.)

The title of the Mohrmanns to the real estate is not put in issue by the pleadings. Bairstow paid the redemption money before the expiration of 15 months after the foreclosure sale, and in this suit the plaintiffs contest the right of Bairstow to redeem. Hallford has no legal title to the real estate under his certificate of purchase. (Williams v. Williston, 315 Ill. 178.) It is our opinion that no freehold is involved in this case. (Lennartz v. Boddie, 304 Ill. 484; Kronenberger v. Heinemann, 190 Ill. 17; Wilkinson v. Gage, 133 Ill. 137; Bush v. Caldwell, 224 Ill. 93; Gage v. Busse, 94 Ill. 590.)

It is contended that Hallford has no legal, or equitable rights against Bairstow, because the certificate of purchase only entitled Hallford to receive the redemption money. Hallford may in a court of equity protect his right to a deed, under his certificate of purchase, by showing, as alleged in the complaint, that the Mohrmanns and Bairstow fraudulently and by collusion permitted a judgment to be entered against the Mohrmanns in favor of Bairstow on an alleged debt, which, it is charged, was not a bona fide indebtedness, and done for the purpose of preventing Hallford from receiving a deed. (Sutherland v. Long, 273 Ill. 309; Strauss v. Tuckhorn, 200 Ill. 75, 83; Phillips v. Demoss, 14 Ill. 410.) Although the attack on Bairstow’s judgment is made collaterally by Hallford. (Arnold v. Gifford, 62 Ill. 249; Powers v. Phillips, 166 Ill. App. 407, 413.)

The Mohrmanns had the right to confess judgment for a bona fide indebtedness for the purpose of enabling a creditor to redeem. (Williams v. Williston, supra.) They also had the right to have a creditor, who had the right to redeem, to redeem for their benefit, although 12 months had expired after the foreclosure sale. (Zeman v. Ward, 260 Ill. 93.)

If the redemption was made by a creditor of the Mohrmanns with a judgment obtained on a bona fide debt due the creditor from the Mohrmanns, it is a matter of no concern to Hallford for whom and for what purpose the redemption was made. (Zeman v. Ward, supra.) It cannot be said by either plaintiff that the Mohrmanns and a judgment creditor of the Mohrmanns for a bona fide indebtedness acted fraudulently and collusively from the fact alone that the Mohrmanns arranged with the judgment creditor that he redeem for their benefit. (Zeman v. Ward, supra.)

The plaintiff, Tockman, as above stated, prays in the complaint that the court may determine what amount, if any, was a bona fide debt actually existing on the date of the entry of the judgment in favor of Bairstow. It must be conceded that Tockman’s right to a successive redemption has been impaired if the judgment of Bairstow is for an amount in excess of a bona fide debt of the Mohrmanns. (Sec. 21, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.172].) It is clear that Tockman has the right to prove that the debt in whole or in part, is not a bona fide indebtedness of the Mohrmanns, otherwise the rule that the debt must be bona fide would be nugatory. (Burnham v. Roth, 244 Ill. 344.) If the alleged debt, the basis of Bairstow’s judgment, is in toto a pretense, Tockman’s right to redeem during the 15 months after the foreclosure sale may be safeguarded in a decree finding the debt a false claim by relating the decree back to the time of the redemption by Bairstow. (42 C. J. pp. 393, 394; Ogden v. Stevens, 241 Ill. 556.)

The evidence shows that the Mohrmanns were indebted to Bairstow and the firm of Chancellor & Chancellor for attorneys’ fees to the amount of $2,500 and on April 21,1938, the Mohrmanns executed a judgment note to Justus Chancellor for that amount. That the note was given to these creditors of the Mohrmanns to obtain a judgment and redeem from the foreclosure sale is shown by the evidence. The Mohrmanns were also indebted to four other persons each of whom held a promissory note against them for his debt. These four notes were collected by one of the Mohrmanns (Mrs. Brewer, nee Mohrmann) and placed in the possession of Justus Chancellor who gave them to Bairstow. The sum of the five notes, and a debt of $500 due Bairstow from the Mohrmanns, was $15,000. The Mohrmanns

executed the judgment note for $15,000 which it is claimed by the plaintiffs was not a bona fide indebtedness to Bairstow, the payee. The motive and purpose of the four persons who gave their notes to Chancellor would be of no concern of Hallford, as the full amount of the redemption money has been paid to the sheriff, and Hallford is in no position to insist the said creditors will receive no benefit from the redemption. The five notes were for bona fide debts, and, so far as Hall-ford is concerned, they could consent to have their notes merged in the note for $15,000 in favor of Bairstow and permit a redemption to be for their benefit, or the benefit of the Mohrmanns.

As before stated, the Mohrmanns were indebted on bona fide debts to the amount of $15,000 to various persons including Bairstow. They gave their judgment note to Bairstow for that amount, and he took judgment on the note for its principal amount, plus attorney’s fee and court costs for obtaining the judgment. Bairstow did not purchase the four notes held by creditors of the Mohrmanns. The notes were indorsed in blank and are now held by Bairstow. The evidence is that there is no agreement, or understanding between Bairstow and the four creditors secured by their notes that the redemption was to be made by Bairstow for their benefit, or that they would receive any advantage from the redemption. The four noteholders, however, surrendered their notes to Bairstow, through Chancellor & Chancellor, with the understanding that a redemption of the real estate was to be made. The inference is clearly drawn from the evidence that Bairstow was acting as the attorney for the Mohrmanns, and their said creditors, arranging for and making the redemption. The four notes mentioned were not all signed by all the Mohrmanns, but some of them were individual notes. The note for $15,000 was not void nor without consideration. (Sebastian v. Gorecki, 339 Ill. 393; 8 C. J. 221.)

By the surrender of the notes to Bairstow and the use made of them, Bairstow, or his assignee, is in a position to bid the amount of the redemption at the sheriff’s sale on the execution issued on the Bairstow judgment of $15,000. (Sec. 21, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.172.].) All of the names creditors of the Mohrmanns have contributed to the purchase price of the farm by means of the redemption. This fact, in addition to Bairstow’s relationship to these creditors, raises a constructive trust in favor of the creditors against Bairstow, if he should deny that he acted as the trustee for the creditors in the transaction of making the redemption. (Towle v. Wadsworth, 147 Ill. 80; Neagle v. McMullen, 334 Ill. 168.)

It is admitted by Bairstow in his printed brief filed in this court that, “Even though there were no definite arrangements, what occurred amounted to an implied agreement to make redemption for the benefit of the noteholders and hold the property together for the benefit of them, at least until the deed was issued.” Thus clearly establishing a resulting trust in favor of the creditors of the Mohrmanns in whose behalf Bairstow made the redemption. When the redemption was made Bairstow delivered to the sheriff checks signed by, and drawn on, the funds of one Earl D. Amsler, a banker, in the amount of $11,999.20 required for the redemption from the foreclosure sale, thereupon the sheriff delivered a certificate of redemption to Bairstow. Bairstow also at that time assigned the judgment for $15,000 and the certificate of redemption to Amsler. Amsler gave Bairstow an option to purchase the farm within six months at a price of $13,200.

The assignments of the Bairstow judgment and the certificate of redemption by Bairstow to Amsler could in no way effect the right of Tockman, as a judgment creditor of the Mohrmanns, to the right of successive redemption. (Hack v. Snow, 338 Ill. 28.) Bairstow was not indebted to Amsler and it is clear from the conduct of the parties and the circumstances appearing in record that the assignments were made to secure Amsler for the $11,999.20 advanced by him to make the redemption. Beyond his security, the assignments did not pass any equities to Amsler. (Daly v. Spiller, 222 Ill. 421; Ogden v. Stevens, 241 Ill. 556.)

The injunction restraining the sheriff’s sale upon redemption made by Bairstow is dissolved. If the real estate sells at the sheriff’s sale for more than the redemption money paid, plus interest and court costs, Amsler should receive the $11,999.20 advanced by him with interest, as provided by sec. 22, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.173], and the excess paid to Bairstow as trustee for the creditors of the Mohrmanns whose debts were consolidated or merged in the judgment note of $15,000, and on which judgment was taken by Bairstow, pro tanto as their debts contributed toward the judgment for $15,000.

That part of the decree of the circuit court of Lake county dismissing the complaint for want of equity is reversed. The case is remanded to said circuit court with directions to reinstate the cause, dismiss the complaint as to the plaintiff, Hallford, and in its decree declare that the right of Tockman to successive right of redemption has not been impaired by the redemption made by Bairstow. Such decree should further direct that if the real estate sells at the sheriff’s sale for more than the redemption money now in the hands of the sheriff, interest and costs, the sheriff shall pay to Amsler $11,999.20, with interest as provided by statute, and that the excess shall be paid to Bairstow as trustee for the creditors of the Mohrmanns whose debts were merged in the judgment note for $15,000 pro tanto as their debts contributed toward the judgment of $15,000, and that the said Bairstow, as such trustee, report to the court his distribution of such excess, if there be any.

Reversed and remanded with directions.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    People of the State of Illinois for use of the First National Bank of Chicago, Appellant and Cross Appellee, v. Maryland Casualty Company, Appellee and Cross Appellant.
    Gen. No. 41,030.
    Burke, J., dissenting.
    Opinion filed June 19, 1940.
    Edward H. S. Martin, of Chicago, for appellant.

      Wilson & McIlvaine, of Chicago, for appellee; J. F. Dammann and George Fiedler, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order dismissing the cause of action filed by plaintiff. The suit was an action for $4,400.96 on the general administration bond which had been executed by the Maryland Casualty Company as surety for Mrs. Beatrice May Ransley, administratrix of the estate of Thomas D. Chadwick, deceased. The action was filed by the First National Bank of Chicago as trustee, after it had secured a decree of foreclosure on a mortgage which had been executed by Chadwick in his lifetime.

A motion was made by the plaintiff to strike the answer of the defendant, or parts of said answer. The court carried the motion back to the complaint filed by the plaintiff and dismissed the case. The plaintiff appealed and the defendant Maryland Casualty Company filed a cross appeal.

Plaintiff’s statement of its cause of action is quite voluminous, but we are setting forth the substance thereof:

It appears that in 1919, Thomas D. Chadwick executed a mortgage on certain real estate for $2,500. Plaintiff is the present owner of that mortgage. In 1925, Chadwick sold his equity in the mortgaged property to the Batmans, but it is alleged that Chadwick remained personally liable for the mortgage debt. In 1927, the Batmans entered into an agreement for the extension of the mortgage, but it is alleged Chadwick still remained personally liable for the mortgage debt.

It further appears that in 1930 Chadwick died; that his daughter Beatrice May Ransley was appointed administratrix and she gave bond with the Maryland Casualty Company as surety; that later in 1930, after the death of Chadwick, the Batmans again entered into an agreement for the extension of the mortgage, but according to the complaint, Chadwick or his estate still remained personally liable for the mortgage debt. It is not alleged in the complaint that the administratrix consented to the extension of the mortgage or knew anything about it.

The complaint in the first instance denies that the administratrix published for claims “after filing any inventory.” Later in the complaint it is alleged as a fact that the master in the foreclosure case found that the administratrix did publish for claims. There is no allegation that the plaintiff ever filed a claim against the Chadwick estate in the probate court. After the year of administration had expired, November 27, 1927, the administratrix filed an inventory and an order was entered by the court approving it, and the complaint charges that by reason of the late filing of the inventory, all of the assets listed in the inventory became exposed to the claims of creditors, subject only to the general statute of limitations. The complaint then alleges that subsequently in 1934, Mrs. Ransley filed her final account and report and that an order was thereupon entered by the probate court approving the account and report, declaring the estate settled and discharging the administratrix. The complaint then charges in this proceeding that the orders of the probate court in that proceeding were void and of no effect. There is no allegation of fraud, accident or mistake.

. The complaint further alleges that in 1935, about 18 months after the closing orders had been entered in the probate court, the plaintiff filed a suit in the circuit court of Cook county to foreclose the $2,500 mortgage, and that the suit resulted in a decree of foreclosure for $4,400.96. The decree entered at that time directed that the property foreclosed be sold and that if there was not sufficient funds derived from the sale to pay the full amount named, the master in chancery should specify the deficiency and the plaintiff would then be entitled to a decree for the payment of the deficiency in due course of administration.

There is no claim that there was ever a sale under the foreclosure decree. It also appears that Mrs. Ransley, the administratrix, was made a party to the foreclosure suit in her capacity as administratrix, although prior to that time she had been discharged by the probate court. The Maryland Casualty Company, her surety, was not a party to the suit.

In deciding this case in the trial court it was held that the suit which was brought against the Maryland Casualty Company, defendant herein, was premature. Chapter 103, par. 13, sec. 13, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 92.13] reads as follows:

“13. Suit on bond-executors, etc.] § 13. Whenever the condition of the bond of any public officer shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against such officer, and any or all of the sureties, or against one or more of them, jointly and severally, without first establishing the liability of the principal by obtaining judgment against him alone. The provisions of this section shall extend to the official bonds of executors, administrators, guardians and conservators, and in suits thereon it shall not be necessary to a recovery that a devastavit should have previously been established against the principal. ’ ’

We think the provision of the statute which we have just quoted is controlling and that it is not necessary that in order to recover it must first be established that the principal is liable before suit can be brought against a surety.

On behalf of the defendant it is contended that it has an equitable defense and asks to be heard thereon.

Many questions are raised on this appeal, but inasmuch as the trial court refrained from passing upon several of the points made by defendant, we think we are justified in not discussing them at length at this time. Suffice it to say, we do not think the motion of the plaintiff to strike certain parts of the answer should be sustained, nor should defendant’s motion to dismiss the suit be sustained. The defendant asks on the equity side of the court that it be given an opportunity to make its principal a party to the suit and further asks that an accounting may be had in equity rather than a hearing at law, as to part of the claim. This is permissible under the statute and we think it should be allowed.

We think that justice would more nearly appertain if each side were permitted to present and prove its case in court, and the court could then pass upon the facts as disclosed.

For the reasons herein given the order of the circuit court is reversed and the cause is remanded with directions to place the same at issue and proceed to a hearing.

Order reversed and cause remanded with directions.

Hebel, J., concurs.

Burke, J., dissents.


text:
    Anton Walaite, Appellant, v. Chicago, Rock Island and Pacific Railway Company et al., Appellees.
    Gen. No. 41,151.

      Opinion filed June 19, 1940.
    Julius H. Selinger, of Chicago, for appellant.
    Milton V. Thompson and Daniel Taylor, both of Chicago, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Anton Walaite, an employee of the defendants, brought this suit under the Federal Employers’ Liability Act seeking to recover for personal injuries alleged to have been sustained while in the employ of the defendants. The cause was tried before a judge and jury. The jury returned a verdict for $15,000 in favor of plaintiff and the trial court allowed defendants’ motion and entered an order dated September 28,1939, for judgment for defendants notwithstanding the verdict for plaintiff, from which plaintiff brings this appeal.

It appears that on September 30, 1936, the plaintiff, while employed as a car inspector in the LaSalle Street Station at Chicago, was required as part of his duty to inspect certain trains operated out of the LaSalle Street Station in Chicago and to make such reports as might be necessary; that it was the duty of the defendants to furnish plaintiff with a reasonably safe place to perform his work; that on the day plaintiff was injured he was working under one of the cars of the train known as the Golden State Limited; that the train was undergoing its final inspection in said LaSalle Street Station just before its departure for California; that plaintiff, a car inspector, had been ordered to get underneath a car of said train and replace a loose brake key.

It further appears that the train was put into motion while plaintiff was underneath one of the cars and that plaintiff was violently crushed between the roadbed and parts of the car and thereby severely injured.

It further appears that plaintiff had been employed by defendants for more than 30 years; that he was first employed as a car cleaner and then as a car repairer and for the last 19 years as a car inspector; that his work was performed in the LaSalle Street Station at Chicago; that inspections were always made just prior to the departure of trains; that plaintiff’s duties required him to go between cars, look under the undercarriage of the cars and examine the journal boxes or hot boxes, and replenish the oil supply.

It further appears that for some 14 years prior to September 30, 1936, plaintiff worked on what is called the second shift; that his tour of duty began at 3:30 p.m., and ended at 11:30 o ’clock p.m.; that on September 30,1936, at about 7:30 p.m., the Golden State Limited, sometimes referred to as train No. 3, consisting of an engine and 12 cars, had been backed into and was standing in the LaSalle Street Station at Chicago, Illinois; that passengers, freight and mail were being loaded upon the train and the train was preparing for departure to the State of California and was scheduled to leave at 8:45 p.m.

It further appears that the plaintiff and one Anton Skoda were making an inspection of that train and, as was customary between them, the plaintiff inspected the west side of the train and Anton Skoda, the east side; that while plaintiff was so engaged in his work, Anton Skoda called plaintiff over to the “Bock Bay,” which was the 11th car away from the head of the train and the second last car of the train; that the plaintiff Walaite was told by Skoda that a brake shoe key in the lead wheel of the forward truck of the ‘ Rock Bay ” was loose and sticking up out of its shoe.

It further appears that before calling Walaite, Skoda had been working for approximately 10 minutes in an effort to get the brake shoe key back into its place and had been unable to do so; that Skoda ordered plaintiff to get under the car and manipulate the key from underneath while he, Skoda, did so from above; that before going under the car, Walaite asked Skoda if a blue light had been displayed; that Skoda assured plaintiff that it had been displayed and that it was safe for him to go under the train; that the two men worked together on the key for another 10 minutes when Skoda decided that more help would be needed; that Skoda thereupon called another car inspector, one Lawrence Schuit, to help; that the three men worked for some minutes but were unable to wedge the key in; that Anton Skoda thereupon left for about 10 minutes and returned with a thinner and better fitting key from another nearby car and the three men were in the process of fitting in the new key.

It further appears that while the men were working, the conductor Homer Morris, having completed his check up of tickets at the gate, was going to the front of the train and saw Anton Skoda and Lawrence Schuit working on the wheel ánd knew that the plaintiff was underneath the car; that several other persons, including the station master, stood by watching the men work; that Anton Skoda told the conductor to hold the train and not move it out of the station until the repairs had been completed.

It further appears that at precisely 8:45 p.m., without any warning, bell, whistle or other notice to the men working, the Golden State Limited got under way.

It further appears that plaintiff was caught underneath the train and crushed by its sudden motion, hurtled and turned several times beneath it; that plaintiff succeeded in grabbing a hand hold on some part of the undercarriage and was dragged a distance of about 40 to 60 feet and that another member of the repair crew succeeded in halting the train; that the plaintiff crawled out from under the train and was taken by the station master to his office and there some 15 minutes later was examined by a physician who had been called by the station master; that none of plaintiff’s bones were found to have been broken but there were some bruises on his shoulder, elbow and leg; that when plaintiff recovered sufficiently from the shock of the experience he went back to work and made one round of inspection ; that thereafter, at home that night as well as for the next succeeding several days, he felt stiff and uncomfortable and was massaged with alcohol.

It further appears that from the date of the accident, plaintiff’s health began to fail, he lost his appetite, lost weight and could not sleep nights; that his sleep was disturbed by dreams of the accident and he would awake in fright, bathed in perspiration, and tired easily.

It further appears that on January 17, 1937, which was some 15 weeks after the occurrence of the accident, while plaintiff was performing his duties in the LaSalle Street Station, he became nauseated, weak and ill and vomited a large quantity of blood; that he attempted to continue his work but after another vomiting spell was so weak and shaken by it that when observed by fellow employees he was reported sick to Anton Skoda and left for his home; that the following day plaintiff was examined by a Dr. Kerwin who made a diagnosis of pulmonary tuberculosis and an X-ray of the lungs corroborated the diagnosis.

It further appears that thereafter plaintiff was confined to his bed for a period of approximately four months, with the exception of occasional trips to the dispensaries of the Municipal Tuberculosis Sanitarium where a phrenic operation was performed on him which collapsed his lung; that he received several injections of a gaseous substance into his lungs and in May, 1937, was admitted to the Tuberculosis Sanitarium where he remained a patient from then to and inclusive of the date of the trial, which was about two years after his admission to the hospital and about two and one-half years from the date of the first lung hemorrhage.

A trial was had before a judge and jury in the superior court which consumed about 10 days and a voluminous record of testimony was taken. As heretofore stated the jury returned a verdict in favor of plaintiff in the sum of $15,000 on April 11,1939. Motions for a new trial and in arrest of judgment notwithstanding the verdict were filed. These motions the trial court took under advisement for a period of five and one-half months and on September 28, 1939, the trial court allowed the motion for judgment notwithstanding the verdict and entered an order that plaintiff take nothing for his suit and that plaintiff be taxed costs therefor. It is from that judgment that plaintiff brings this appeal.

Plaintiff’s theory of the case is that the injuries which he sustained were due to the negligence of the defendants in moving the train in question when they knew plaintiff was in a position of danger.

Defendants’ theory of the case is that the plaintiff assumed the risk of his employment and in addition thereto that they were not guilty of negligence in moving said train; that the plaintiff received no injuries and suffered no damage as a result of the accident in question and they further contend in the alternative that, in any event, certain errors were made during the trial of the case which would entitle them to a new trial.

Testimony as to how the train started was given by the engineer and the fireman. Their testimony is not contradicted by any direct evidence. The engineer was a man of 47 years’ experience as an engineer. He had taken the Golden State Limited out of the LaSalle Street Station for about 25 years. He testified that on the night of the accident he sat in his cab awaiting the signal to start; that the usual signal sounded in the customary manner and knowing nothing whatever about the plaintiff being under the train he obeyed the signal, as was his duty, and turned on the headlight of the engine, started the bell to ringing, pulled the throttle and started the train.

The testimony further shows that the fireman had been in the employ of the defendants as a fireman for 26 years and had the rating of an engineer. He testified to the sounding of the usual signal to go and to the ringing of the bell and the starting of the engine as described by the engineer. It was undisputed that neither of these men was aware of plaintiff’s position under one of the rear cars of the train, some 800 or 900 feet away from them. These men had no knowledge that the moving of the train would endanger anyone.

Counsel for defendants stated on oral argument that the conductor alone had the authority to give the signal to go and that the conductor did not give the signal, for both sides admit that he stood on the platform outside the train and was never in a position to pull the communicating whistle cord, and it is further claimed that the brakeman stood beside him.

The position of the defendants appellees as disclosed by the briefs and argument is that the signal was given to the engineer to go ahead, but that nobody that they knew of gave the signal, and in the oral argument counsel said that it was done by some outsider whom they did not know. As a matter of observance of usual and ordinary care, it occurs to us that the jury in considering this phase of the situation, may have thought it would have been a proper exercise of that necessary duty for defendants to have had someone stationed there to see that no one pulled the bell cord without authority.

There was conflicting evidence on both sides. The Rules and Regulations of the Operating Department were offered in evidence. Rule 26, provides as follows:

“A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it. When thus protected it must not be coupled to or moved, nor other cars placed on the same track so as to intercept the view of the blue signals. Workmen will display the blue signals and the same workmen are alone authorized to remove them.” In connection with this rule Skoda testified that he saw the conductor Homer Morris there and he told him to hold the train as they were not ready to go, but he did not testify that he put the blue lights there although he knew that they would hold the train. It is very apparent that Skoda knew that plaintiff was in a position of danger and that if the train started plaintiff would possibly be killed, yet the blue lights were not displayed. Skoda testified that he was there telling plaintiff what to do.

Without reviewing this lengthy record in great detail, we think there was sufficient evidence introduced on behalf of plaintiff to make an issue of fact for the jury. We think the trial court did right in denying the motions for instructed verdicts, but we think the trial court erroneously granted the motion for a judgment notwithstanding the verdict.

In the case of Kinsey v. Zimmerman, 329 Ill. 75, at p. 79, the court said: “It was there held that the trial court has no power, when a jury is not waived, to determine the weight and preponderance of conflicting evidence introduced to establish or disprove the facts, and the trial judge is never authorized to take a case from the jury or direct a verdict for the plaintiff where to do so would involve the determination of the preponderance of the testimony, but that court is limited strictly to determining whether there is or is not any evidence legally tending to prove the fact alleged; and this is true even though it appears that the greater weight of the evidence may be on one side or the other; and as siich power does not exist in the trial court it cannot be conferred upon the Appellate Court. This rule is established in this State.” See also Minnis v. Friend, 360 Ill. 328.

In McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, the court at p. 128, said:

“If it were permissible for a trial judge on a motion non obstante veredicto to weigh the evidence and enter a judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by a jury would be done away with and the judgment of the court substituted therefor. It is only where there is no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict.”

In Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471, wherein the court said at p. 480:

“We are not of the opinion that the present Practice Act in allowing a trial court to give judgment notwithstanding the verdict, in favor of a defendant, has in any way abrogated or modified the above rules of law. The trial court has no more power to weigh and determine controverted questions of fact under the present Practice Act, than it had prior thereto. In furtherance of the general principle that it is preferable that cases involving questions of fact should be disposed of on their merits by a jury, rather than upon formal motions, a trial court after denying a motion for an instructed verdict for defendant, at the close of plaintiff’s evidence and again at the close of all the evidence, should not render nugatory the verdict of a jury returned on disputed questions of fact, by rendering a judgment non obstante veredicto in favor of such defendant;. . . ”

Much evidence was introduced by the parties to this suit as a result of the claim made by plaintiff as to the injuries which he received. These witnesses appeared before the jury who heard them testify upon the witness stand and we think the jury was in a much better position to determine wherein lay the preponderance of the evidence than is a reviewing court. The same principle would apply when considering the question of proximate cause, contributory negligence and other defenses which were interposed which, under the law, are properly left to the consideration of a jury.

In this case the defendants have made a motion in the alternative, that a new trial be had.

Complaint is made as to the instructions given to the jury. We cannot find that the defendants in their written motions for a new trial complain of any erroneous instructions, nor have they, so far as we have been able to find, complained that the trial court gave or refused to give any of the instructions. Cooper v. Safeway Lines, Inc., 304 Ill. App. 302. We have examined the instructions given and we think the court was very liberal to both sides in allowing instructions and that no prejudicial error was committed by the court in this regard. This case is based largely on questions of fact. We think the trial was fairly conducted and that the motions for a new trial were properly overruled. On the motion, however, for a judgment non obstante veredicto, we think the trial court was in error in allowing said motion. It is not the province of a judge to weigh the evidence on such motion. •

Inasmuch as there has been a fair trial in this case and no prejudicial error has entered which would cause ns to reverse the judgment and remand the cause, it is hereby ordered that the verdict of the jury be as returned and judgment is entered here for $15,000 and costs in favor of plaintiff as should have been done when the cause was before the trial court.

Judgment reversed and judgment here for plaintiff for $15,000 and costs.

Hebel and Burke, JJ., concur.