author: Mr. Justice Shurtleff

text:
    In re Estate of William H. Healea, Deceased, Nellie D. Verne, Appellant, v. John Healea et al., Appellees.
    Gen. No. 8,276.

      Opinion filed April 17, 1929.
    Rehearing denied May 31, 1929.
    Charles A. Zweng, Adlai H. Rust and Hall, Martin, Hoose & Depew, for appellant; Edward Barry, Jr., of counsel.
    Chas. M. Peirce, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal by Nellie D. Verne, appellant, from an order of the circuit court of McLean county, Illinois, finding- that John Healea and others, brother, nephews' and nieces of William H. Healea, deceased, appellees, are heirs at law of the said William H. Healea, and that Nellie D. Verne, appellant, is not William H. Healea’s daughter.

The case was tried in the circuit court on appeal from the probate court. The probate court had originally granted letters of administration to Nellie D. Verne upon the estate of the said William H. Healea, deceased, and entered an order finding that Nellie D. Verne was his only heir at law. John Healea, a brother, and Obe S. Healea, a nephew of the deceased, filed a petition asking the court to set aside the orders appointing Nellie D. Verne as administratrix and finding her to be the heir at law. The probate court, after a hearing upon that petition, granted the prayer thereof and set aside its previous orders and the respondent, in that petition, appellant here, appealed to the circuit court of McLean county, Illinois.

The testimony of a great many witnesses was heard in the circuit court and some documentary evidence was introduced. There were no propositions of law submitted to or found by the trial court and at the conclusion of the trial the court aErmed the decree of heirship found and entered in the probate court and the order of that court removing appellant, Nellie D. Verne, from the oEce of administratrix, from which orders she has appealed.

The facts in this case as presented by the proofs are somewhat more involved in obscurity than in some of the cases passed upon by the courts, but nevertheless must be passed upon in this case.

The evidence shows without controversy that Mary Catherine Livingston taught school at the Healea schoolhouse near Empire, Illinois, during the fall and winter of 1875 and 1876; that William H. Healea, the deceased, who was then about 13 or 14 years old, was one of her pupils at that time; that Mary Livingston, while she taught there in 1875, stayed at the home of Ed.- Healea, the father of William H. Healea and that the latter was at home at that time. This was the beginning of the acquaintanceship between William Healea and Mary Livingstno who were married in 1889, and we find that Mary Livingston again taught the Healea school in 1887 and 1888, when she also stayed at the Ed. Healea home. Mary Livingston was the daughter of Durham Livingston, was born in 1852 and became a school-teacher at the age of 14. She had two sisters, Sarah, also called Sadie, who married William Williams, and Julia, who married Taylor Goddard, and one brother, Johnny Livingston. Mary Livingston married William H. Healea in 1889 at Peoria, Hlinois, and later she and her husband moved to Bloomington. She died in 1916 and her husband died in 1927. Sarah Williams also died several years ago. The evidence is also undisputed that Nellie, the appellant, when about 4 weeks old, on May 12, 1884, was left on the doorstep of the home of Sarah and William Williams, who proceeded to adopt her at the May term, 1884, of the county court of McLean county and that appellant lived with the Williams family until she was approximately 16 years of age.

The fact that Mary Livingston was the mother of appellant was shown by the following: Charles Razor testified that he first saw Nellie when she was 4 or 5 years old with Mary Livingston Healea, who was showing the child the store windows on the west side of the courthouse in Bloomington; that Mary Livingston, after her marriage to William H. Healea, told witness frequently that appellant was her child and always spoke of Nellie as her daughter; that William Healea told him in 1917 or 1918 that Mary Livingston (when she returned to Bloomington in 1884) got off the train, heavily veiled, and had a hack driver drive her to the Williams home to leave the baby, but that it did not suit her to leave appellant that night and so they went to the St. Joseph’s Hospital in Bloomington and stayed and then the next night she left Nellie in a basket on the Williams porch. The witness also tallied with Mary Healea at different times about the' parentage of appellant in the presence of her husband.

Charles Razor also testified that Johnny Livingston, the brother of Mary Livingston Healea, told him once in 1914 that he had to spend $500 for his sister Mary to go to have an operation for a kid; that the witness then said to Johnny, “Now you have told me all this, is she Mary and Will’s child?” and he said, “It is absolutely their child, nobody else’s. ”

Dr. John W. Fulwiler testified that he was the attending physician for Mrs. Mary Healea at the time of her death in 1916; that she died of cancer of the uterus; that witness first saw appellant in 1906 or 1907 in the poormaster’s office in the courthouse with her mother, Mrs. Healea; that Mrs. Healea always spoke of Nellie as her daughter.

Grace Deane testified that she worked at Sarah Williams’ dressmaking shop as a dressmaker for 2 or 3 years about 20 years ago; that Mrs. Williams was a half sister of Mary Healea and witness asked Sarah, while working there, why she was interested in appellant, and she said because Nellie was her half sister’s daughter and also said in response to a question that Nellie’s mother paid for her clothes. She also said that Nellie was left on her doorstep and that she did not fully know whose child she was until Nellie was 12 years old and left home. Mrs. Williams also told witness that the morning after Nellie was left there that Mary Healea came to her house and picked the baby up and kissed it and loved it, that a letter was left in the basket with the baby telling how it should be educated and that money would be furnished the Williams in gold. She also said Nellie was born at St. Joseph’s hospital in Bloomington.

Phil A. Karr testified that while he was superintendent of the county farm, Mrs. Healea filled out the unexpired term of her father as poormaster; that she sent a young woman who was expecting confinement out to the farm and came out to look after her; that on the way back to town Mary Healea said she had sympathy and felt sorry for unfortunate girls because she had had a like experience of her own.

Mrs. Anna Baldwin testified that she was intimately acquainted with Sarah Williams who died in 1922; that the latter stayed at the home of the witness in 1909 and 1910 and during that time told the witness more than once that Mary Healea came and confessed to her that she was appellant’s mother.

Mrs. Mayme Ulbrich testified that before her marriage she was a dressmaker and worked for Sarah Williams in 1903; that the latter wanted to adopt witness and told witness about adopting appellant, and that appellant was left on her doorstep when a baby with a note telling her name and that money would be left to help support her, and she said money was left through the window at different times. She said Mary Healea came to her house and acted surprised to see the baby and tears rolled down her cheeks and she picked it up and said if Sarah would keep it she would help take care of it. Mrs. Williams told witness later that she knew Mary Healea was the mother of appellant.

Ethel Manning testified that in 1903, at her home, the mother of witness told Mary Healea, in the presence of witness, that appellant “looks enough like you to be your daughter,” and that Mrs. Healea said appellant was her daughter.

Dr. E. 0. Williams testified that Sarah Williams was his mother’s cousin- and sister-in-law; that during Sarah’s last sickness the witness asked her why she did not have appellant come and take care of her and she said she did not want to because Nellie had left her when she needed her. Sarah Williams said she wanted to make a will and that she would not remember appellant and that the latter had no claims on her; that Mary Healea was appellant’s mother and was in a position to take care of appellant. Sarah also told witness that Nellie had been offended at her ever since she found out who her mother was; that appellant found it out at school and was upset because Sarah had not told her, and that appellant’s attitude had changed toward Sarah Williams after she discovered Mary Healea was her mother. Sarah also told witness that Nellie was born over- east some place.

Mrs. Margaret Razor testified that she met Mary Healea 2 or 3 years before her death in 1916 and told her she had heard that she was appellant’s mother and said, “Now, Mary, is it true that you are? I am just asking you this because I want you to defend yourself,” and Mrs. Healea said, “Yes, it is true, she is my child.” Witness also told Sarah Williams she would like to know who Nellie’s mother was and Sarah said, “Hasn.’t Aunt Caroline'told you?” and witness said, “Yes, but I wanted to know your opinion of it and who you thought she was.” Sarah then said, “Why, it is Mary Healea’s and Mary made a full confession to me and cried about it.” Mrs. Sarah Williams also said she could never feel right toward Mary for putting the burden on her to raise the child.

Copies of pictures were made of Mary Livingston Healea taken at the time of her marriage and presented to the witness Mary Baton, whose deposition was taken at Brownsburg, Indiana, and Mrs. Baton testified that she has been living in Brownsburg since 1878, and that in the spring of 1884 a woman shown in the photograph was there under the name of Madge Arndt and lived next door to the witness with a Mr. and Mrs. Evans who are both dead; that witness saw Mary Livingston there at the Evans home and at church and on the street in Brownsburg; that Mrs. Evans told witness her name was Madge Arndt and witness heard Mrs. Evans call her by that name; that there never was any family in or around Brownsburg, Indiana, by that name; that the woman — Mary Livingston or Madge Arndt — wore a dolman, a long wrap with sleeves and loose in front; that witness never saw a baby there but that Mrs. Evans was the kind of a woman who would conceal the fact.

Mrs. Eaton also attended a turkey dinner at the home of the Evans where Mary Livingston was staying in 1884, and saw her there at that time. In 1884 Mrs. Evans made a hair wreath for the witness, which she still has, and it was at that time she saw Mary Livingston or Madge Arndt at the hoine of Mrs. Evans. Witness also saw this woman sitting upstairs sewing at the front window in the Evans home, and she fixes the date by the hair wreath, as she had a record in a book of the time it was made, which book she burned with some rubbish after reading it two years ago. To connect up this testimony and render it further material, appellant proved that Mary Livingston or Madge Arndt gave birth to a child at Brownsburg on April 15, 1884. This was shown by the testimony of Sherrill May, who testified that he is the town clerk of the town of Brownsburg,'Indiana, and has in his possession a book containing the records of vital statistics of said town for the year 1884; that the book contains an entry showing the birth of a white, female child to a woman who gave the name of Madge Arndt, on April 15, 1884; that the record shows that this child was born in Brownsburg on that date and was the first child of the mother; that the father’s name was C. C. Arndt and his nationality German; that the mother was American, born in Illinois, and her maiden name was given as Madge Lyons and her residence given as Brownsburg, that the medical attendant was Dr. John S. Marsh and that the child was not illegitimate. The witness also testified that the book in which this record is contained was turned over to him by his predecessor in the office of town clerk and that witness is the custodian of the clerk’s records, among which is the book testified about. The fact that this record was in proper custody is shown by the copy of sections 8, 9 and 10 of the laws of Indiana, approved March 7, 1881, certified under the hand of the secretary of state of Indiana and under the seal of said State.

•The proofs submitted tending to show that William H. Healea was the father of appellant were about as follows:

Charles Bazor testified that he saw appellant in the Healea home frequently, almost every time he was there; that after Healea’s wife died, witness asked him why he did not have appellant keep house for him and he said the reason he did not was the way the child came into the world; he thought it best for her to go away so it wouldn’t make her so embarrassed and then he couldn’t stay at home and that she could make something and help with the expenses; that witness asked Healea if Nellie was his daughter and he said “Yes”; that this was in 1916; about two years after Mary Healea died, and he was sighing and moaning about his folks never coming to see him; that once when Healea was sick he told witness if he got any worse to call Nellie; that witness knew Healea since the latter was a boy and they both took music lessons at the same place as early as 1873 or earlier. Witness also testified that when Mary Livingston was teaching at the Healea school and staying at Ed. Healea’s home there was no one there but Will Healea’s mother and father and Will Healea and Mary Livingston; that Will Healea roomed at the home of the witness the third year after Mary Healea died and one night they were all sitting around the table and Healea was writing something and witness asked if he was writing a will and he said “Yes.” He said he did not want John to have anything but wanted Obe to have $1,000 and his nieces and nephews $500 apiece; that witness asked him a question and he got up and tore the paper up and said he couldn’t make a will and didn’t want John to have anything, and he threw the paper in the wastebasket and said Nellie was entitled to it, all of it.

Charles Razor also testified that he had a conversation in 1914 with Johnny Livingston, the brother of Mary Livingston Healea, in which conversation the latter told the witness that he had had to spend $500 for his sister Mary Healea to go to have an operation for a kid; that the witness then said to Johnny, “Now you have told me all this, is she (appellant) Mary and Will’s child?” and Johnny said, “It is absolutely their child, nobody else’s.”

William Ernest testified he had known William Healea for 35 years, lived the second door from him and saw him every day; that he saw appellant at the Healea home often; that Healea put a fence around witness’s place and a roof on his house in 1909 or 1910, and that they worked on it together; that at that time witness asked him what had become of appellant and he said that she was at some of their relatives; that witness then asked him who appellant was and he said that she was their daughter — Healea said that Nellie was his daughter.

Mrs. Margaret Razor testified that when Mrs. Sarah Williams, sister of Mary Healea, told her that Mary Healea was appellant’s mother, the witness said, “Now, Mrs. Williams, you have told me who the mother was, I want to know, if you will tell me, who the father was?” and that Mrs. Williams said, “Will Healea is”; that a day or. two later the witness told Will Healea that she had been to see Mrs. Williams and had heard a whole lot and he said, “I was expecting to hear from her”; that witness then told him what Mrs. Williams had said about him being appellant’s father and Mr. Healea said, “Well, I am.”

Dr. J. Witfield Smith testified that on March 1,1922, William Healea brought a lady, who gave her name as Nellie Williams, to his office and witness fitted her with a pair of glasses and that Mr. Healea paid the bill; that this is shown by his books.

Dr. John W. Fulwiler testified that William Healea brought appellant to his office and said, “You remember Nellie, she lived at our house a long time,” and witness said he remembered her; that Healea then said, “My daughter has been to Chicago for some little time and has been down visiting and she wants to talk a little about how she feels”; that witness prescribed for appellant and Healea paid the bill. Witness also testified that after Healea’s wife died in 1916 witness met Will Healea and appellant at the Commercial Hotel, where they ate; that at that time Healea introduced appellant, saying: “My daughter, you remember her.” Witness also testified he saw appellant at the Healea home 35 or 40 times.

Appellant offered to prove by Mrs. Anna Baldwin that Mrs. Sarah Williams, deceased, sister of appellant’s mother, told the witness shortly after Mrs. Healea’s death that Will Healea came to her and told her that he promised his wife just before her death that he would always take care of their child, the appellant.

Henry Larson testified that he was a very close friend of William and Mary Healea and knew the latter ever since he was old enough to remember anything ; that he lived next door to them and saw appellant at their home both before and after Mrs. Healea died; that at the time of her death the home was made up of Mr. and Mrs. Healea and appellant; that Mrs. Healea always called appellant Nellie Healea.

Walter G-. Miller testified that Mr. Healea came in the jewelry store operated by witness and his father, Charles L. Miller, and said: “I come in to purchase a watch for the girl, she lost her watch or it was stolen”; that the watch was mailed to Chicago.

Oscar Olson testified he knew Healea for 25 years; that he saw appellant at the Healea home many times in 1912, when he visited there often; that Will Healea used to say “off and on” after his wife died that he had sent some money to Chicago to “the girl”; that witness had seen Healea and appellant go by his house together after Mrs. Healea died and has seen appellant at the Healea home seven or eight times since Mrs. Healea’s death; that appellant was living in 1912 part of the time at Healea’s and part of the time in Chicago.

F. L. Warner testified that Will Healea spoke to him a number of times about appellant; that he would say, “I got a letter from my daughter” or “got a letter from my girl”; that Healea told witness a number of times he had a letter from his daughter. James W. Cundiff testified that he had a conversation with William H. Healea in which the latter referred to “his daughter or the girl,” as being a musician and playing in an orchestra away from home most of the time. Charles L. Miller testified he knew Healea for 25 years; that witness sold him a watch and his son sold him a second watch; that at the time of both purchases Mr. Healea said he was buying it “for the girl” in Chicago.

Oscar Anderson testified he lived six doors east of William Healea and has known the latter and his wife, Mary Livingston Healea, all his life; that he never knew appellant to be anything but Nellie Healea that he saw appellant throughout his school days at thé Healea home for a period of 13 years and has seen her with her mother, Mrs. Healea.

Mrs. Elmore Wolff testified that she knew William and Mary Healea for 35 years and lived right across the street from them part of the time and about 6 or 7 houses east of the Healea home part of the time; that she knows appellant only as Nellie Healea and first became acquainted with her when appellant was about 12 years old; that appellant was about 16 years old when she came to live with the Healeas; that witness has seen appellant going into and coming out of the Healea home frequently, and going out in the morning and coming back in the afternoon, and with Mr. and Mrs. Healea. Ethel Manning testified that one afternoon she went to the Healea home to get appellant to go skating, and appellant told Mr. Healea she wanted some money and he opened a pocketbook and gave her some change; that witness has seen appellant and Mr. Healea together 6 or 8 times in 1902 and 1903 when she called at Healea’s home.

There are a number of other facts and circumstances which, taken together and examined in the light of the testimony in this case, strengthen and corroborate appellant’s evidence to a considerable degree and bear out her contention that she is the child of William and Mary Healea. They treated Nellie as their child. She was seen going to and coming from the Healea home frequently after she went there to live; and several of the neighbors knew her as Nellie Healea and saw her frequently with her parents. Mr. Healea bought watches for her and they paid for her clothes. He took her to the doctor when she was sick, and paid for prescriptions and glasses for her. He gave her money even after she had become a musician and was playing at Chicago. They furnished her with a musical education at the Wesleyan College of Music, which was natural in view of the fact that her mother, Mary Healea, was a music teacher and schoolteacher.

Photographs from the family album have been certified to this court of Mary Livingston Healea and William H. Healea and various original checks for money given by William H. Healea to appellant after the death of Mary Livingston Healea for moderate sums at different times, bearing the. indorsement of appellant, are before this court.

Numerous witnesses testified in behalf of appellees, some of the testimony being of a negative character and in some instances it was of a positive nature.

Joseph Rutledge testified that he never saw Healea and his wife with a child, but that he never lived in Bloomington and saw William H. Healea probably only two dozen times in the last 25 years. Mrs. Lila Hammond says she never saw Will Healea and Mary Livingston together after 1900. Mrs. Ora Vance said she attended a Christmas dinner at Will Healea’s house in 1897 or 1898 and was there only the once and there was no child there. That would be when appellant was about 13 years old and was at Sarah Williams.’ Roy Thompson testified that Mary and Will Healea visited the Ed. Healea homestead only 3 or 4 times a year from 1891 to 1907 when Ed Healea died, and that they did not bring any children with them. George E. Dooley testified that he met Will Healea frequently after 1900 alone, and has seen Healea and his wife together, but not frequently, and never saw them with a child; that after Mary died he had a conversation with Will Healea on Main Street in which the witness spoke about Mary Healea’s death and that Healea said that he was alone and didn’t have any children and was living alone in the southwest part of Bloomington. W. S. Irvin testified that he bought some property from William H. Healea and at that time asked him if he had any heirs and he said no; that witness asked him if he had any children and he said no; that he said he had $1,000 in the Modern Woodmen and didn’t know who to leave it to because he did not have any blood relations; that this conversation was two years ago on the curb at the east side of the courthouse.. J. M. Taylor testified that in the fall of 1927 he asked Will Healea where he had been and he said to the Atlanta fair; that witness then asked him if he wasn’t getting a little reckless and he said, “I and you are in the same fix; we have no children to leave our money to and we might as well spend it.” Willis Haison testified that he spent the night with William' H. Healea once four or five years after the latter’s wife died and there was nobody else there; that Healea told the witness he had heard that people that never had any children never got along very well and said that he and his wife never had any children and they got along as -well as anyone. Witness said he saw Healea and his wife once out at the farm- and once at the cemetery and there was no child with them on those two occasions; that one time he was' walking down the street with Healea and they met a woman whom Healea introduced as his wife’s niece; that witness cannot identify appellant as that woman.

Taylor Goddard testified that he is the husband of Julia Livingston Goddard, a sister of Mary Livingston; that about the 15th day of March, 1884, Mary Livingston came to the farm of witness near Arrow-smith and stayed a day or two; that while there the witness, his wife and Mary went to a- dance at Arrow-smith and that Mary danced with several men but not with the witness. In answer to a question asking him to describe her appearance with reference to carrying a child or otherwise, the witness said he couldn’t see any difference from her than he ever did before or since. Witness also said that Mary Livingston was again at his place about the 16th day of May, 1884, on a Tuesday or Wednesday with her mother, and that at that time she showed no indications of having been sick with child. The witness also testified that he never knew of Will Healea going with Mary Livingston prior to 1884 and never heard any rumors in 1884 or shortly thereafter that the child left on the Williams’ doorstep was Mary Livingston’s.

The witness could not remember his own age within several years or the age of his son, who was born on May 22 or 27, 1884, and stated he was either 42 or 43 years of age in December, 1927. The witness evidenced great interest in the cause on behalf of appellees and had come from Indiana with his wife to assist appellees.

Julia Livingston Goddard testified that she is the wife of Taylor Goddard; that her second son, Claude was born on May 26, 1884, and not May 22 or May 27, or in December as her husband testifies; that witness did not go to the dance at Arrowsmith with her husband and Mary Livingston as her husband testified she did. She- admits on cross-examination that in the probate court she testified she was at the dance, but says that when she answered in the circuit court on direct examination that she was not at the dance, that she was not testifying about the dance in 1884; witness then says again that she was not at the dance in 1884. Then the witness was recalled and says she was at the dance but did not dance. She says she never thought of such a thing as Mary Livingston carrying a child at the time of the dance and says Mary showed no evidence of having been sick when she saw her in May, 1884; that she never heard in her family anything about Mary having a child; that she did not know Will Healea ever went with her sister Mary and she and her family were surprised when she heard they were married; that she has heard appellant call William H. Healea “Uncle Will.”

Other witnesses were produced who testified they had heard deceased say that he had no children and A. L. Lemons testified he was at a dance at Arrow-smith on a Thursday night in the middle of March, 1884, and was introduced to a Miss Livingston by Taylor Goddard who said she was his wife’s sister; that she had her coat off and it didn’t look like she Was carrying a child, but witness says he cannot tell whether a woman is pregnant or not by looking at her. The witness also remembers that Mrs. Goddard did not dance that particular night 44 years ago, and did not take her coat off but that she got out of the vehicle.

Witnesses testified that deceased had told them that he had no will and when he died one-half of his property would go to his brother John and one-half to the children of a brother. Appellee produced the testimony of Dr. J. H. Copenhaver who testified that he is a physician practicing in Belleflower, Illinois, and was physician for Mary Healea in 1916, and made an examination of her pelvic-abdominal organs; that she was suffering from fibroid tumor of the uterus breaking down to a cancerous condition; that the witness does not say she had a cancer; that she was having a serious discharge and the uterus and tumor combined were three-quarters the size of a man’s head; that he found no scarred tissue indicating lacerations from childbirth, and expresses the opinion that Mary Healea had never given birth to a child. Dr. J. H. Fenelon testified that he read Dr. Copenhaver’s testimony and that in his opinion a physician, making’ such an examination of a woman in the condition described, would be able to tell whether or not that woman had ever given birth to a child. Dr. H. L. Howell testified that he also read Copenhaver’s testimony and his opinion is that in a vast majority of cases the physician could tell from such an examination of such a woman whether or not she had ever given birth to a child.

On the other hand, Dr. John W. Fulwiler and Dr. E. M. Stevenson both testified in answer to a hypothetical question based on the evidence, that a physician, making such an examination of a woman in the condition described, could not tell whether or not the woman had ever given birth to a child. Both of these doctors testify that they have known of cases of childbirth without there being any lacerations and consequently without leaving any scarred tissue; that in a majority of cases of birth of a first child there are lacerations in the mouth of the womb, but it is by no means the rule.

Appellant assigns error upon the admission in evidence of certain exhibits purporting to be two photostatic copies of letters written by William H. Healea on or about June 1, 1920, to A. N. Bort, head clerk of the Modern Woodmen at Bock Island in regard to a policy of insurance held by Healea in said company. These copies are not shown to have been written or signed by the deceased and are certified by said head clerk under section 15 of the Evidence Act, Cahill’s St. ch 51, jf 15, as part of the books, papers, correspondence and records of the Modern Woodmen of America without further proof. The purport of the letters was that his wife was dead and he desired to have the policy transferred to appellant, who was dependent upon him but not of his own blood;

that she was his wife’s nieee. He also inquired if he could leave the fund to his executor, though if he should marry again he would want to leave it to his wife. In connection with this also there was an application of considerable length purporting to have been made and signed by Healea, answering numerous questions along the same line, showing a relationship and care that the insured had over appellant and his solicitation for her welfare, in which he states that she is not related to him by blood but by marriage, she being his niece. He states her age in 1920 as 24. This paper is certified in the same manner by the head clerk as a part of the books, papers, correspondence and records of the company. There is no other proof of these matters and nothing to show that Healea signed the instruments other than the certificates. Whatever may be the effect of section 15 of the Evidence Act, Cahill’s St. ch 51,1i 15, as it may pertain to the business of the Modern Woodmen and its affairs in connection with its corporate business and its policyholders, it should be elementary that the certificate of such a corporation or its officers under seal cannot change the fules of evidence or settle the rights of parties in outside matters where the rights and interests of the corporation are in no manner involved. The certificate proves no more than that such a paper is among the papers and memoranda of the company. It may be that in a cause between the Modern Woodmen and Healea the certificate might establish prima facie that Healea wrote the documents. As between the heirs at law of Healea it is a mere document or memoranda which proves nothing. The nature of the memoranda here produced was defined in Mandel v. Swan Land & Cattle Co., 154 Ill. 177, and the court say on page 190 :

“The evidence of Eeed was as to mailing notice and the entries as to his mailing letters, etc., are a mere memorandum to which he could refer to refresh his recollection, and not a record of which copies must be made.”

Again the court say in this same case: “The original books, and the evidence provided for by sections 15 and 18 of the statute, are original evidence and evidence of a secondary nature is not to be resorted to,” etc. The same rule was adhered to in Chicago, B. & Q. R. Co. v. Weber, 219 Ill. 372, 382, and the full purpose and intent of the statute was discussed. Appellant Chicago, B. & Q. R. Company introduced a lease in evidence by certificate between it and another railway company in a suit where a third party was interested, and to its introduction appellee strenuously objected. The court say: “If the question were- as to the contents of the lease or its provisions, and as between the parties to it, the position taken by the appellee would certainly be sound. But such is not the situation, as we view it. The terms and conditions of the lease were not material or controlling.” What is meant by original evidence must be construed as original evidence in some matter in which the corporation is interested. The documents in question were of no more interest or concern to the Modern Woodmen, corporation, than any other possible narrative of purported facts to be gleaned from the daily press or any other source of information. It was error to receive the documents in evidence or to consider them on the hearing in this cause. It is of interest to note that in this application Healea was asked to state:

Q. “Give the names and relationship of the nearest blood relatives of said proposed beneficiary.
A. “Has none.”

Healea further states in the application that appellant “always made my home her home as long as my wife was living.” At this time he was furnishing appellant from one to $600 per year and when appellant worked she earned $18 per week,

The proofs in this case are very potent that Mary Livingston Healea was the mother of appellant. Was William H. Healea her father ? There is proof in the record that he acknowledged her to various persons to be his child. To consider the evidence of the letters and application made to the head clerk of the Modern Woodmen, which we have held it was error to admit, we are persuaded more strongly to the conclusion that appellant was his child. In 1920, when Healea wrote Bort that appellant was 24 years of age, she was in fact 36 years of age. Why this false statement unless he feared if he gave her correct age it would be making a record that she was born out of wedlock, for the edification of those who knew? He stated that she had no blood relation. The statement is convincing that he had full knowledge of her parentage and knew that her mother was dead. Mary Livingston Healea was born in 1852. Healea was born in 1861. She was 9 years his senior. At appellant’s birth the mother was 32 years of age and Healea was 23. At the time of marriage the mother was 37 and Healea was 28 years of age. The disparity of their ages at marriage is a matter of note and may be some corroboration of the history that had passed before. It is argued that appellant addressed the deceased as “Uncle Will,” and witnesses testified that he spoke of her as “his wife’s niece.” .This could easily be accounted for from the fact that she lived in the home of her mother’s sister until she was 12 years of age and learned to call her own father and mother “uncle” and “aunt.” In Champion v. McCarthy, 228 Ill., 87, 101, the court say:

“Appellants offered a number of witnesses who were well acquainted with Susan Champion during her lifetime, some of whom had been on very intimate terms with her, and they all testified they had never heard her mention Henry McCarthy as being her son or relative. They also offered in evidence several letters written by Henry McCarthy to Lydia Cheshire between April 7, 1898 and January, 1905. What these letters contained is not shown by appellants ’ abstract, except they were addressed to Lydia Cheshire as ‘Dear Friend’ and ‘Dearest Friend,’ and signed by Henry McCarthy.” Yet the court found he was her son.

In Bellinger v. Devine, 269 Ill. 72, 85, the court stated:

“The testimony of the appellants that their brother had stated to them that he had never been married is explained by the testimony of Mrs. Wail, who says that when Raven first asked her, immediately after the death of his wife, to take charge of the baby, Frances, and she asked him why he did not ask his sisters to take charge of her, he replied that he did not want his sisters to know he had been married. For some reason he evidently desired to conceal from his family the fact of this marriage, and this may account for the mis-statements as to his parentage in the application for the marriage license.”

In the ease at bar it cannot be doubted but that William H. Healea did hesitate and refuse to make a matter of record the full facts as to the birth and parentage of appellant and thus arouse the passions and dissensions in his father’s family that such an act would do. It cannot be doubted either but that he did acknowledge appellant to be his child to various persons, and to the end of his life had a care and solicitude for her comfort and happiness that only a parent could have. The testimony is replete with the statements of various witnesses that Healea said appellant was his child, and they are too numerous to be accounted for in this record on any theory that the proofs are manufactured or otherwise than voluntary.

Are the proofs sufficient to establish heirship ? Under section three of the chapter on Descent, Cahill’s St. ch. 39, U 3, it is provided:

“An illegitimate child, whose parents have intermarried, and whose father has acknowledged him or her as his child, shall be considered legitimate.”

The consensus of authority in this State on the subject matter is laid down in Miller v. Pennington, 218 Ill. 220, in which the court holds at page 226:

‘ ‘ Our statute ... is similar to the Indiana statute, which provides that if the father shall marry the mother of a bastard child and acknowledge it as Ms own, the child shall be regarded as legitimate. In construing that statute the Supreme Court of Indiana has held that an acknowledgment by the father removes from the child the status of illegitimacy, no matter what the purpose of the acknowledgment was or whether the father intended to make the child his heir, and that it fixes the status of the child, which cannot be changed by anything the father or mother might afterward say. The court said: ‘Having removed the “bar sinister” they cannot replace it.’ That seems to us to be the correct interpretation of our statute, the purpose of which is to fix the status of the child as legitimate. It seems to us that it would be an unjust and unwarranted construction of the law to say that the father Of an illegitimate child, who has legitimated it by marrying its mother and acknowledged it to be his, can thereafter change its status by any subsequent declaration.”

The court also held in the same case: “An oral acknowledgment, when clearly and satisfactorily proved, is sufficient. . . . All that the statute requires in respect to the acknowledgment is that the father shall own or admit the child to be his.”

But it is contended by appellees in this case that to establish appellant’s contention it is necessary to establish that appellant was born out of wedlock; that Mary Livingston Healea was her mother and that the deceased was her father; that thereafter Mary Livingston Healea and deceased married and that the father acknowledged appellant as his child and it is insisted that the proofs fail to establish any of these contentions except the marriage.

There is proof in the record that Mary Livingston was delivered of a child in Indiana in 1884; that she went under the name of Madge Arndt and the birth of a female child is recorded at Brownsburg as having been born April 15 of that year. The father’s name was given as C. C. Arndt, a salesman, and it is shown that no such person as C. C. Arndt was ever known to have lived in that part of Indiana. The woman Mary Livingston is positively identified by the photographs and the fact that she simulated her own name lends color to the conclusion that the other names were simulated and that no such person as 0. C. Arndt existed. The association between Mary Livingston and William H. Healea in 1875 and 1876 and again in 1887 and 1888 and their living in the same home, is shown, and that they married in 1889. We have read the full testimony of the witness Mary Eaton, now 87 years of age, and it bears the stamp of truth upon its face. Mrs. Eaton gives dates and occurrences that fixed the matter in her mind. The rule laid down in Welch v. Worsley, 330 Ill. 172, as to declarations in regard to pedigree is: “that before such declarations are "admissible in evidence it must be established that the declarant is dead; that the declarations were made before the controversy arose and that the declarant was related by blood or marriage to the family to which the declarations refer.” Appellees contend under this rule that no declarations can be shown after appellant left the home of her aunt, Sarah Williams, because she and her aunt Sarah had some controversy about her birth. We cannot agree with appellee’s contention. No controversy arose in this case until the death of William H. Healea and there was an estate to administer and distribute. Any declarations made by relatives, either by blood or marriage, to Mary Livingston Healea and William H. Healea, her husband, prior to the death of William H. Healea are competent in evidence in this cause. All statements made by Mary Livingston Healea and her husband, William II. Healea, in their lifetime, are competent as to the parentage of appellant. The same is true as to Sarah Williams and her husband ánd as to Charles Razor and his wife. The same rule would be applied to the Goddard family and the immediate family of William H. Healea, deceased. There is proof that a female child was born to Mary Livingston on April 15, 1884, under such circumstances and surroundings as to preclude the'presumption of legitimacy. This situation is strongly corroborated by the placing of the child upon the doorsteps of a half sister, its adoption and after 12 years, when the child finds and comes to know its true mother, the repeated and continual assertion by Mary Livingston Healea that it is her child. The child looks like its mother, its training and musical proclivities follow its mother’s accomplishments and there can be no reasonable explanation why Mary Livingston Healea should, during her whole life, so persistently claim a child not her own.

William H. Healea also acknowledged appellant as his child. The proofs show that after his wife’s death he did not desire appellant to remain in Bloomington and keep house for him, as it would embarrass her and doubtless would embarrass him; but he stated to many people, and especially to his wife’s relatives, that appellant was his child. It is more than likely that this was not his attitude among the Healea family and his letters and application to the Modern Woodmen are simple in explanation and strongly corroborative of appellant’s contention. He made no application of his Woodmen insurance. He executed no will to aid his collateral relation among the Healea family. He even forebore to make a record that could bring one tinge of disrespect upon his own child. As the court said in Metheny v. Bohn, 160 Ill. 263, 268: “Samuel Bohn for more than eight years thus spoke of and evidenced affection for his son. He spoke of his children, saying he had an adopted daughter and a son, — his own son. With a right of disposition of his property by will it is difficult to conceive a purpose or motive for such declarations and expressions if they were untrue. It is incomprehensible, when all the facts are considered, that such declarations were untrue. That falsehood, deception and feigned affiection were indulged in by Samuel Bohn for years, without motive, necessity or reason, must be found if the claims of appellants are sustained. The deduction can be fairly drawn from this evidence that Samuel Bohn was a man of probity and morality, and as applicable here we cite Gaines v. New Orleans, 6 Wall. 642, where the court said; in passing on a somewhat similar question: ‘The inquiry naturally arises, what motive had he to declare his child legitimate if he knew the facts were otherwise?’ ”

In the opinion of this court the testimony preponderates in favor of appellant under the law of this State and the order and decree of the circuit and probate courts of McLean county should be reversed and a decree entered in said probate court finding and determining that appellant, Nellie D. Verne, is the sole heir at law of William H. Healea, deceased.

Reversed and remanded with directions.

Additional Opinion on Denial op Petition por Rehearing

Appellees present a petition for rehearing and argue cross-errors, said to be assigned, but no cross-errors are shown by the abstract to have been assigned, and many matters of proof offered and the rulings thereon are discussed, but the proofs and such rulings do not appear in the abstract, and appellees have presented no supplementary abstract. As to the letters and application purporting to have passed from the deceased, William H. Healea, in his lifetime and the Modern Woodmen of America, it is elementary that in a collateral matter between third parties, such instruments cannot be certified under section 15 of the Evidence Act, Cahill’s St. ch. 51, U15 but their authenticity must be established. Appellees criticise some of the language used in Miller v. Pennington, supra, and cite Welsh v. Worsley, 330 Ill. 172, 200, in holding: “But whatever the fact may.be as to Swigart’s purpose or intention in making any or all of the declarations aforesaid, if he did make all of them, the evidence for defendants in error establishes beyond all question that she is not the, daughter and heir of Swigart.” The language used in Miller v. Pennington, supra, stated the law as it applied to the facts in that case. The language used in Welch v. Worsley, supra, applied to a different state of facts. The law must be applied to the particular facts in each case.

It is contended by appellees, that many of the statements of relatives proven were statements made after controversy had arisen over the parentage of appellant and appellees cite Sugrue v. Grilley, 329 Ill. 458, 465, holding: “Pedigree may be proved by hearsay evidence, but it seems to be well settled that a declaration concerning kinship reproduced as hearsay, to be admissible, must have been made by a person, since deceased, before a controversy arose, and who was related by blood or affinity to some branch of the family the pedigree respecting which is ■ in question. (Jarchow v. Grosse, 257 Ill. 36; Aalholm v. People, 211 N. Y. 406 L. R. A. 1915 D 215.) While the authorities are not in harmony respecting all of the elements of this rule, there seems to be no difference of opinion upon the proposition that such declarations are admissible only when the circumstances show they are the natural effusions of a party who is in a position to know the truth and who speaks upon an occasion when his mind is free from bias and without temptation to exceed or fall short of the truth. ’ ’ Appellees contend, in their petition for a rehearing, that a controversy arose over this matter, when appellant was about 16 years of age, at the time her Aunt, Sarah Williams, informed her that Mary Livingston Healea was her own mother. This contention is based upon the testimony of Dr. E. 0. Williams, who stated, that in a conversation with Sarah Williams, she said to him: “that Nellie had been offended at her ever since she discovered who her mother was; that she thought she found out at school and came home very much upset because Mrs. Williams hadn’t told her that before,” etc.

This difference does not represent a “controversy,” such as was contemplated by the language of the court and in fact this cause never was in controversy, until the death of William H. Healea. From the issues and proofs, as submitted to this court, we are satisfied with the conclusion arrived at on the former hearing and the petition for rehearing is denied.

Denied,


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Regina Wolfstein, Appellee, v. Illinois Power & Light Corporation, Appellant.
    Gen. No. 8,230.

      Opinion filed April 17, 1929.
    LeForgee, Black & Samuels, for appellant.
    McDavid, Monroe & Mann, for appellee.
   Per Curiam.

Regina Wolf stein, appellee, and plaintiff in this suit recovered a judgment in the circuit court of Macon county, at the October term, 1927, thereof, against the Illinois. Power & Light Corporation, appellant here and defendant in the suit, for the sum of $1,800, in an action on the case for damages received in consequence of a collision between an automobile in which she was riding and a street car operated by appellant.

The issues under which the case was tried were presented by the first amended count of the declaration and the plea of the general issue. It is very forcibly contended by counsel for appellant that this count does not state a cause of action. The sufficiency of the count is preserved by motions to direct a verdict for the defendant at the close of the evidence introduced on behalf of plaintiff and at the close of all the evidence and also by a motion in arrest of judgment. The criticism made to the first amended count is that no duty or breach thereof is alleged therein. It is averred in the count:"

“For That Whereas, the plaintiff on to wit: the 23rd day of January, A. D. 1927, in the city of Decatur, in the County aforesaid, was riding in a certain automobile driven and operated by one Irving Bright, in and along a certain street or public highway in the City of Decatur aforesaid, to wit: a certain street or public thoroughfare extending Bast and West and known as West Main Street, which said automobile was being so driven on and along said West Main Street between the intersection thereof with Oakland Avenue, and the intersection thereof with Fairview Avenue in said City, and near said Fairview Avenue, upon which street was a certain line of street railway of the defendant; And the defendant was then and there possessed of a certain electric chr, operated and propelled by electricity, commonly known as a street car, which said street car was then and there under the care and management of the certain then servant, or servants, of the defendant, and said servant or servants were then and there driving the same upon and along the said street, West Main Street, between the intersection thereof with Oakland Avenue and the intersection thereof with Fairview Avenue, and near said Fairview Avenue in said City, as aforesaid, and while the plaintiff with all due care and diligence was then and there riding in said automobile along and on said West Main Street, between the intersection thereof with Oakland Avenue and the intersection thereof with Fairview Avenue, and near said Fail-view Avenue, as aforesaid, upon the said public highway there, being then, and at all times herein mentioned, in the exercise of due care and caution for her own safety, the defendant then and there, by its said servant or servants, so carelessly and improperly drove and managed the said street car, that by and through the negligence and improper conduct of the defendant, by its said servant or servants in that behalf, the said street car then and there ran into and struck, with great force and violence, upon and against the said automobile, and did by said force and violence then and there throw the plaintiff with great force and violence upon and against the windshield of said automobile, causing the glass thereof to become broken, and thereby then and there, tearing, mutilating, and greatly damaging and destroying clothing of the plaintiff, then and there owned and worn by her. And by means thereof, etc.”

The sufficiency of such a count, which has become generally known in practice as a “general negligence” count, was first brought to the attention of the Supreme Court in the case of Chicago City Ry. Co. v. Jennings, 157 Ill. 274. In this case a general and special demurrer to the count was overruled by the trial court, which action was sustained by the Appellate Court and the judgment affirmed by the Supreme Court. While the criticism advanced in the Jennings case,' supra, seems to have been confined to the insufficiency of the count in not alleging specific acts of negligence on the part of the defendant, and the opinion of the court seems to be directed wholly to this point and does not include any discussion of the lack of any averment charging a duty, yet the demurrer was general and special and applied to the whole count which was approved by the court. The court was undoubtedly largely influenced in its judgment by the precedents established by long recognized authorities on common law pleading. Thus in 2 Chitty on Pleading '710, substantially the identical form as the count in this case, is set out as a proper precedent. The same form is also approved in 2 Humphreys on Precedents, 807, 8 Wentworth on Pleadings 396, and Yates on Pleadings 396. Similar counts have been approved in Chicago, & A. R. Co. v. Redmond, 171 Ill. 347; Illinois Cent. R. Co. v. Shefner, 209 Ill. 9, and Chicago City R. Co. v. Pural, 224 Ill. 324. It must be conceded, however, that in none of these cases was the sufficiency of such a count challenged on the ground of the failure to allege a duty and a breach thereof. It is an elementary rule of pleading in actions of this character that the pleader must state facts from which the law will imply a duty and a violation thereof. Do the facts set out in the first amended count in this case raise or imply a duty owed to appellee by appellant and a breach thereof by the latter ? The facts averred are in substance, that the plaintiff was riding in an automobile along a certain street or public highway in the City of Decatur and that the defendant operated an electric street railway upon and along said street over which electric cars were propelled for the carriage of passengers, and while so riding in said automobile and in the exercise of due care for her own safety, the defendant, through its servants, so negligently operated said electric street car that it collided with the automobile in which plaintiff was riding, thereby injuring her. While, as a matter of law, street cars in cities have a superior right of way to the general public traveling thereon at places other than crossings, still the general public has the right to use and travel upon the entire street including that portion of it on which the street car tracks are laid and cannot be treated as trespassers. North Chi cago St. R. Co. v. Smadraff, 189 Ill. 155. In the case of Swanson v. Chicago City R. Co., 242 Ill. 388, it was held: “Much of the argument of counsel seems to be based upon the mistaken assumption that the defendant, in operating a street car in public streets, is charged with no greater degree of responsibility and owes no greater duty to the public than does a steam railroad company on its private right of way to a person who is a mere trespasser thereon. ... A street railway in the city, or a steam railroad along a public highway or at a public crossing in the city, is charged with a responsibility entirely different from that of a steam railroad on its private right of way. . . . A street railway, electric road or steam railroad, in the running of its trains, is required to exercise ordinary care and prudence to avoid injuring a person rightfully using the public streets and highways, regardless of statutory regulation on the subject.” In our opinion the allegation that the plaintiff was rightfully upon a public street in the City of Decatur, in the exercise of due care for her own safety, is sufficient to raise a duty on the part of the street railway company to so operate its cars as not to negligently or carelessly injure her, and upon this theory the sufficiency of the count should be sustained.

The next contention made by appellant is that the manifest weight of the evidence proves that the motorman who operated the street car which collided with the automobile in which appellee was riding was not guilty of any negligence. At about 8 o’clock on the evening of January 23, 1927, Irving P. Bright, who resided at 174 Oakdale Street in the City of Decatur was driving a Buick coupe east on West Main Street in said city, which had room for three people. The driver’s seat was advanced a short distance in front of the other seat. Accompanying him and sitting on that portion of the seat in his rear were his mother, Mrs. Pearl Bright, and his sister, Regina Wolfstein, appellee, the latter sitting on the south or right-hand side next to the door. The street car tracks of appellant ran east and west along the center of the street. There was heavy ice on the street with deep ruts therein to a depth of eight or ten inches, and deep ruts along the street car tracks and the street was in a very slippery condition. Between the south rail of the street car track and the south curbing of the street was a distance of 17 feet. The evidence on behalf of- appellee tends to show that the automobile was being driven at about 12 miles per hour in the grooves or ruts outside of the railroad tracks and that by reason of the icy and rough condition of the street the front end of the automobile turned or jumped so that the left front wheel swung to the left and passed over the south rail of the railroad track; the driver attempted to get the automobile off of the track and back on to the side of the street where he had been proceeding but was unable to do so; he stopped the automobile and sounded his horn as he saw that a street car was approaching from the east and was distant about450 feet; his lights on the automobile were lighted;' that the street car was running between 30 and 35 miles an hour and failed to stop and thereby collided with the automobile; between 15 or 20 seconds elapsed between the time when he first saw the street car and the collision; the street car ran 3 or 4 car lengths past his automobile before it was brought to a stop. The evidence for appellant tended to show that the motorman did not see the automobile until it jumped on to the track directly in front of the street car about 20 feet distant therefrom; that he immediately applied the brakes on the street car and did all he could to stop it but was unable to do so within that short distance; that the speed of the street car was between 15 and 16 miles per hour. The credence of the witnesses was a matter for the jury to consider and it was for them to reconcile the evidence and determine with whom was the preponderance or greater weight thereof.

It is most strenuously insisted, however, that the evidence conclusively shows that the appellee was guilty of contributory negligence in that she did not exercise due care for her own safety. The testimony of appellee herself is somewhat conflicting, as to whether she saw the street car or when she saw it if she did see it. The point raised is that when her brother’s automobile became stalled upon the street car track and she saw the street car approaching, or, by the exercise of due care could have seen it, she should have left the automobile and proceeded to a place of safety. She testified that she was talking to her mother and did not see any street car approaching and had no occasion to notice the street car until her brother’s automobile jumped on to the tracks and that she never saw the street car until they were in danger; that there was nothing to prevent her view of the approaching street car while she sat in the automobile as she could see on all sides through the glass. "While the negligence of Bright, her brother and driver of the automobile, if any, cannot be imputed to appellee, yet she was bound to exercise ordinary care for her own safety. Flynn v. Chicago City R. Co., 250 Ill. 460; Pienta v. Chicago City Ry. Co., 284 Ill. 246; Opp v. Pryor, 294 Ill. 538; Grifenhan v. Chicago City Rys. Co., 299 Ill. 590. The evidence tending to show that but 15 or 20 seconds elapsed after the automobile jumped on to the tracks, the time intervening between the first knowledge appellee had of the approach of the street car and the collision was necessarily very short for her to weigh the situation and determine the best way to prevent injury to herself and to exercise her judgment and act thereon. The evidence further tends to show that if she had attempted to leave the automobile from the side on which she was sitting, she would have placed herself upon an icy, slippery street in front of the approaching street car. Whether she would have had time and opportunity if she had done so to have es-' caped being injured is open to doubt. She testified that she expected the street car to stop and avoid the. collision. From all the evidence it became a question of fact for the jury also to determine whether she acted, under the circumstances, as a reasonably prudent person would have acted for her own safety, by not attempting to leave the automobile.

The physical injuries received by appellee so far as shown by the evidence were all confined to the head. They consisted principally of lacerated wounds on her face, one of which extended to the eye, and bumps and swollen places on the head. She was attended by her family physician, Dr. Bachrach, who, after testifying to the physical injuries on the head, further testified that 7 or 8 months after the accident he discovered that she had the disease known as leucorrhea, which is caused by an inflammation in the vagina; that in his opinion such inflammation was brought about by a' nervous shock and that the shock occurred on January 23, 1927, at the time of the accident. The evidence very conclusively shows that this disease is very common among women, that it is a germ disease, and the greater weight of the evidence is that the injuries received by appellee and her nervous shock resulting therefrom, could not create this disorder'. However, the greater vice in the admission of this testimony is the fact that there was no proof whatever that appellee did not have this disease before the accident happened to her. Without proof that appellee had not been afflicted with the disease before the accident it was error to permit the doctor to testify from discovering its existence 7 or 8 months after the accident, that, in his opinion it was caused by the accident. Appellee was not asked by her counsel and did not testify to anything in regard to the subject of leucorrhoea. There was no foundation laid for this testimony. Dr. Bachrach was further permitted to state what the course of treatment would be to cure her of the disease, the length of time it would take and the possibility of the necessity for an operation, consisting of a curettaging, and the removal of one ovary. The whole testimony of Dr. Bachrach on this subject was purely speculative and conjectural, incompetent and erroneous. Lauth v. Chicago U. T. Co., 244 Ill. 244; Chicago City Ry. Co. v. Henry, 62 Ill. 142; Lyons v. Chicago City Ry. Co., 258 Ill. 75; Chicago City Ry. Co. v. Henry, 218 Ill. 92. This testimony, however, only tended to prove the damages. Appellant in the court below filed points in support of its motion for a new trial, among which there was none raising the question that the damages were excessive. It is a familiar and elementary rule that where a party files a written motion for a new trial and specifies therein the grounds or points upon which he relies, all questions not embraced in the points so filed, are waived. Chicago City Ry. Co. v. Smith, 226 Ill. 178; Yarber v. Chicago & A. Ry. Co., 235 Ill. 589; Erikson v. Ward, 266 Ill. 259. It has been expressly held that the point that the verdict is excessive must be stated as one of the grounds so filed or it is waived. Jones v. Jones, 71 Ill. 562; Ottawa, O. & F. R. Val. R. R. Co. v. McMath, 91 Ill. 104; Mc-Claren v. City of Gillespie, 250 Ill. App. 53. It was held in the case of Danley v. Hibbard, 123 Ill. App. 666, (affirmed 222 Ill. 88) that a party cannot complain that the court erred in the rejection of competent evidence which pertained to the amount of the damages where the excessiveness of the verdict was not made one of the grounds for a new trial. So also the propriety of an instruction pertaining solely to the question of damages will not be considered on appeal if the party complaining did not urge as a ground for a new trial that the damages awarded were excessive. Linck v. Scheffel, 32 Ill. App. 17; City of Paxton v. Frew, 52 Ill. App. 393; Wettrick v. Martin, 164 Ill. App. 273.

Complaint is also made to some of the instructions. There was no reversible error therein.

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice Niehaus

text:
    George Pate, Appellee, v. Robert R. Rodman, Appellant.
    Gen. No. 8,300.

      Opinion filed June 11, 1929.
    Rehearing denied October 9, 1929.
    Dyer & Dyer, for appellant.
    Miles S. Odle, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court. '

George Pate, the appellee, brought this suit in replevin in the circuit court of Vermilion county, to recover certain chattel property which he claimed to own, namely, one Dayton player piano, one black gelding horse 9 years old, one black gelding horse 11 years old, one roan mare .9 years old, one Deering binder, one John Deere gang plow, one Peoria corn dump, one red and white spotted cow, one Hoosier oats seeder, one brown cultivator, one half interest in John Deere corn planter, having a total value of $672. This chattel property together with other property had been described in a chattel mortgage held by the appellant, Robert R. Rodman, as the property of Charles Wood and Dolly Wood, his wife; and had been taken by the appellant under his chattel mortgage.

The issue in the case involves the ownership of the appellee, and appellant’s right to the property under the chattel mortgage referred to. The trial resulted in a verdict finding that the appellee had the right of possession of the property in question; and fixing appellee’s damages at $50 for detention of the property. Judgment was rendered on the vérdiet of the jury and this appeal is prosecuted from the judgment.

It is contended by the appellant for reversal of the judgment, that the verdict of the jury is contrary to the evidence and the law. It is contended, that a portion of this chattel property was acquired by the appellee from Charles and Dollie Wood, in violation of the provisions of the Bulk Sales Law, Cahill’s St. ch. 121a, ljl et seq.; and that it constituted the major part of live stock and machinery,used on the farm operated by Charles Wood, the mortgagor at the time of the sale of the property to the appellee.

The evidence shows that the appellee previous to the sale of the property referred to, to him, had worked for Wood as a farm hand for a number of years; and was living on the farm with the Woods at the time of the sale; and that at the time of the sale, which was on December 22, 1926, Wood was indebted to the appellee in the sum of $600 for work and labor; and that to satisfy this demand and indebtedness which is not disputed, Wood executed a bill of sale for the property to the appellee. The property sold to the appellee remained on a farm then operated by Wood, where both the appellee and Wood were living, to March 1, 1927, whereupon it was moved to another farm which had been taken possession of by the .appellee and Wood and was farmed by them jointly. In the joint operation of the farm referred to, the property which the appellee claimed to own, as well as other property "owned by him, and chattel property owned by Wood, was jointly used for their joint farming enterprise; and the appellee and the Woods continued to live together on this latter farm and operate it together.. So far as the record shows, the appellee after the sale of the property to him always claimed to own the property in question and exercised such acts of ownership over the same as appeared to be necessary or incidental to his acquisition of the same; and his ownership was undisputed and recognized by Wood is so far as there was any occasion to do so.

The Bulk Sales Law, Cahill’s St. ch. 121a, fí 1 et seq was enacted to protect the rights of creditors of vendors of property in the sale and transfer of personal property. The evidence does not show that at the time of the sale and transfer of the goods and chattels in question there were any other creditors of Wood whose rights could have been affected by the transfer; and unless the sale and transfer was in conflict with the rights and interests of some other creditor or creditors of Wood, the title to the property passed to the appellee by the bill of sale, and he became the owner of the same; and the Bulk Sales Act, Cahill’s St. ch. 121a, 1J1 et seq. would have no application to the transaction. The appellant did not become a creditor until after the parties had removed from the farm on which the sale and transfer of the property took place, to the farm operated by them jointly. The chattel mortgage was not executed until May 27, 1927, some time after they had moved to the other farm which the Woods and appellee were jointly operating.

The appellant insists that he has a lien on the property, because when the chattel mortgage was executed in his office as security for a loan of money, that the property in question was listed on the list of property which Wood had handed to him to be included in the chattel mortgage. While this is a controverted question of fact in the case, it clearly appears that if Wood did so, the appellee had no knowledge of the fact that this would be done; and had no knowledge that the property had been included in the mortgage; and never authorized or consented to its being included therein. The fact merely, that it was included in the mortgage by direction or with the consent of Wood would not deprive the appellee of any rights of ownership or possession which he had in the property; nor would the fact that the appellee and Wood used each other’s property and chattels in their joint operation of the farm deprive. the appellee of any rights of ownership in the chattels in question; Wood could not by such joint use of the property acquire any right of ownership in appellee’s property; neither could the appellee acquire any right of ownership in Wood’s property by this joint use of their respective properties.

The evidence warranted the jury in finding that at the time of the replevin of the property in question, the appellee was entitled to the possession of the chattel property in question.

Error is also assigned because the court failed “to mark ‘given’ or ‘refused’ on certain instructions tendered by the defendants.” The record does not show that the instructions tendered were not given. The mere failure to mark them “given” or “refused” is not ground for reversal of the judgment; nor does it bring to this court for determination the question of the legal propriety of the giving or refusing of the instructions. Tobin v. People, 101 Ill. 121; People v. Bopp, 279 Ill. 184; Winslow v. Guthrie, 113 Ill. App. 50.

The record does not disclose any reversible error, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    City of Staunton et al., Appellees, v. Cole & Fauber et al., Appellants.
    Gen. No. 8,303.
    Opinion filed June 11, 1929.
    Rehearing denied October 9, 1929.
    Paul J. Luker, and Cobbs, Logan & Alexander, for appellants,

      Charles S. Andrus, H. H. Willoughby, E. D George, Omer Poos and Jesse Peebles, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Macoupin county on a bill in chancery in the nature of an interpleader, brought by the City of Staunton as complainant.

The bill sets out that a contract had been let by the city to Cole & Fauber, contractors, for the construction of a water supply system; that the Federal Surety Company signed the contractors’ bond; that the original contractors, after working about a year, had defaulted and abandoned the work; that the Surety Company had continued with the work, and had substantially completed it; that the city had paid to the contractors $190,815.18, and to the Surety Company $7,300 and that it had on hand, applicable to the contract, and in the bank the sum of $28,024.14; that various persons had filed lien notices under the statute, claiming to have furnished labor and materials to the contractor and claiming rights in the fund; that the contractors and the Surety Company were claiming some interest in the fund; and prayed that the court decree' the rights of the parties.

The defendants named in the bill included, in addition to the contractors and the Surety Company, the claimants who up to that time had filed notices of liens with the city.

In a supplemental bill filed by the city the same allegations were made; but additional lien claimants, those filing after the time of the first bill, were named as additional defendants. From time to time various others not named as defendants in either bill filed inter-veiling petitions or voluntarily entered their appearance; Neither the contractor .nor the Surety Company made any claim to the fund.

The cause was referred to the master in chancery, who took the evidence and filed a report of his findings and conclusions, and which report, with one exception (wherein the master had recommended a judgment against the Federal Surety Company), was approved and confirmed. This appeal is by two of the defendants — lien claimants.

The appeal of the Alton Brick Company is based solely on the fact that the master and the court allowed participation in the fund to various claimants who were not entitled to participation.

The allowances appealed from on the grounds that they were not for lienable items, or that they are for improper amounts, came under four heads:

1. Staunton National Bank, $4,539.37, given lien for money loaned to the contractors.

2. Doctors D. L. Bley, C. H. Zohlen and A. C. G-off given liens totalling $91.50 for medical services rendered to employees of contractors.

'3. A. C. Kurz, a lien in the amount of $16.50 for printing and stationery; Staunton Telephone Company, a lien in the amount of $55.60 for telephone service.

4. James P. Clow & Sons, claim excessive by $400. It is claimed the effect of the above allowances is to reduce materially the share of the appellants and of other valid lien claimants in the funds in the hands of the city.

, The appeal of the Mount Olive Oil Company is based on three grounds:

1. The allowance ox a lien against the fund to the Staunton National Bank for money loaned to the contractor.

2. The recognition by the master and the court of an assignment by one Danklef, a subcontractor (to whom the Mount Olive Oil Company sold gasoline, etc.)) to one C. Clavin of Danklef’s participation in the account to the exclusion of the Mount Olive Oil Company’s claim.

3. Failure of the master to allow a lien claim to the Mount Olive Oil Company for gasoline, etc., sold to Danklef, the subcontractor.

As to the claims of Dr. D. L. Bley, Dr. C. H. Zohler and Dr. A. C. Groff, given liens amounting to the sum of $91.50 for medical services rendered to employees of contractors, the court was in error in allowing each of these items, as liens are not allowed by statute .for services of that kind. (McMillan v. Casey Co., 231 Ill. App. 422, 311 Ill. 584; Hoier v. Kaplan, 313 Ill. 448; Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549 and Siemer Milling Co. v. Moritz, 227 Ill. App. 459.)

It was likewise error to allow the claim of A. C. Kurz, amounting to $16.50, for printing and stationery, and the claim pf the Staunton Telephone Company, amounting to $55.60, for telephone service.

As to the- claim for a lien by the Mount Olive Oil Company, appellants ’ statement in their brief as to the facts is unchallenged by appellees. That statement is as follows:

The evidence with respect to the Mount Olive Oil Company is that this company had furnished oils, greases and gasoline to William J. Danklef, who had a contract with Cole & Fauber for moving the earth for the reservoir dam. Their evidence established an undisputed balance due from Danklef to the amount of $1,156.39. It was also undisputed from the evidence that Danklef did this work on the job and that the materials sold by the Mount Olive Oil Company had been consumed on the job in the process.

However, an assignment from Danklef of all of his claim out of the fund (which the master found to be $5,295.65) to one C. Clavin appears. This assignment finds its way somehow in the exhibits attached to the master’s report. There is no place in the transcript showing that it was introduced. There was no evidence concerning it whatsoever. The assignment is dated March 10, 1927, which is a date long after Cole & Dauber quit the contract, and long after Danklef had done the work, and long after the indebtedness to the Mount Olive Oil Company from Danklef accrued.

The master recognized this assignment, holding in his report and being sustained by the trial court, that Clavin was entitled to receive this money.

As to this claim appellees contend that the Mount Olive Oil Company, being merely a subcontractor and having had no dealings with Cole & Dauber, is not entitled to any allowance and that the claim in full was properly allowed to Clavin, assignee of William J. Danklef. In this, counsel and the court below are in error. (Siemer Milling Co. v. Moritz, supra; Alexander Lumber Co. v. Farmer City, 272 Ill. 264, 275.) The full claim of William J. Danklef amounted to $5,295.65 and by the decree was ordered paid to his assignee, C. Clavin. This.was error. The claim of the Mount Olive Oil Company, amounting to $1,156.39, should have been allowed and the same amount deducted from the Danklef claim allowed to Clavin.

A claim was allowed to James B. Clow & Sons in the sum of $3,916.35. It is substantially conceded by all parties that this was the amount of the claim of James B. Clow & Sons as originally submitted, and that there should be a deduction of $400 from this allowance which is hereby ordered.

Appellants assign error upon the allowance of the sum of $4,539.37 to the Staunton National Bank. As to the situation surrounding the merits of this claim the record shows the following state of facts

At the time Cole & Dauber were awarded the water supply contract they entered into negotiations with the bank officials supposedly looking toward temporary financing. They opened a regular customer’s account, depositing some of their own money (not out of this contract), and depositing from time to time other sums not derived from this contract. They also deposited sums derived from another contract with the City of Staunton for work going on at the same time, but which is not included in this suit. Out of this amount checks were drawn in payment of labor and‘materials and for other purposes, on both contracts.

At the same time the checking account was opened, another account was created, known as “The City of Staunton in escrow for Cole & Fauber.” This account apparently was opened by joint agreement of Cole & Fauber, the bank, the city, and one Watson of Chicago, to whom the contractor had sold the water certificates which were to be issued to him in payment for the work on this particular contract.

When a portion of the work was done, the engineer for the city would issue his “estimate,” of the amount of labor and material finished or in place; it would be approved by the city council, through recommendation of the board of local improvements, and water certificates equal in face value to the net amount of the estimate, which was 85 per cent, would be issued. These certificates would be sent by the bank to the Chicago Title & Trust Company, where Mr. Watson would pay the agreed purchase price for same (85 per cent of the face) to the Trust Company. The Trust Company would deposit the amount with the Chicago correspondent of the bank to the credit of the bank. Upon notification of this transaction, the bank would credit the escrow account with a like amount. The city would then issue its voucher or order payable to Cole & Fauber for the amount thus deposited, and this sum, upon deposit of the order or voucher, would be credited to the Cole & Fauber’s customers’ accounts where it was mingled with Cole & Fauber’s own money and the money received from the other contract.

Whenever the contractors ran short of funds they would borrow money from the bank, giving their unsecured demand notes. The proceeds of these notes, in each instance the face value, were deposited to Cole & Fauber’s customers’ accounts. When funds would reach the customers’ accounts through the city’s orders on the escrow account, enough of the customers’ account would be appropriated to pay the notes with interest at 6 per cent from date.

There was evidence introduced that at the beginning Cole & Fauber had given an assignment of the sums to be received by them from the city under the contract as security to the bank; but neither the bank’s original intervening petition nor its notice of lien served on the city, nor the notes themselves make any reference to this assignment.

When the contractors failed on January 8, 1927, there were three unpaid demand notes of the contractor in possession of the bank totaling $9,500. There was a balance in the Cole & Fauber’s customers’ account of $5,107.81. This amount was appropriated by the bank and credited to the notes, one note being credited with $3,000; one wdth $2,107.81; and one receiving no credit, leaving a balance on that day of $4,392.19.

Suit was thereafter brought in the circuit court by the bank against Cole & Fauber on the notes and judgment entered for $4,539.37 on May 27,1927. The claim made in this proceeding is on the notes, not on the judgment, and on the strength of the alleged assignment for the right to withhold this total sum from the escrow account, and prior to the rights of the claims of material, men, labor, etc. The master and the court allowed this claim in full with the interest which had accrued up to the date of the judgment, with interest thereafter at 5 per cent and as a prior lien on the fund ahead of all others except court costs.

As to the merits of this claim, it is elementary that Cole & Fauber’s assignment to the bank could not have passed title to the bank of any funds or parts of the contract price that Cole & Fauber did not earn. The original contract price for constructing the improvement was $229,936.06, of which Cole and Fauber had been paid $190,815.18 at the time they abandoned the uncompleted work about one year after the commencement thereof. Thereupon the Federal Surety Company, being surety for Cole & Fauber, had completed the improvement and had been paid by the city the sum of $7,300 to apply upon the contract price. This left in the hands of the City of Staunton the sum of $28,024.14 to apply upon said contract, some minor items having been expended in some other way. Nothing in this record shows or tends to show the proportionate amount of the work completed under the contract by Cole & Fauber at the time of the abandonment other than that the payments made were estimated to be 85 per cent of the work completed. The record is absolutely bare of any proof as to the cost and expenses of completing the contract after the failure of Cole & Fauber, and there is nothing in the bill of complaint or in the proof tending to show what portion of this improvement had been completed by Cole & Fauber at the time of their failure or at what cost and expense any surety would be in completing the work. Plainly nothing could pass by Cole & Fauber’s assignment to the bank until some increment had been earned upon the contract, and it is equally plain that if the bank had permitted Cole & Fauber to draw out all of the escrow account or all the moneys they had earned upon the contract there would be nothing upon which the assignment could operate. Certainly Cole. & Fauber could not assign the proceeds of what they had failed to do, and this record does not show any funds earned upon which the assignment could operate. The whole course of dealing between the bank and Cole & Faube^, tne entering of the notes in judgment — into which the notes became merged— shows that the bank was making loans to the contractors and relying upon their personal security. This is a mere attempt to establish a lien for money loaned and it was error for the court to allow the claim of the Bank of Staunton. (Cairo & V. R. Co. v. Fackney, 78 Ill. 116; 40 Corpus Juris, page 77, note 47.)

The Federal Surety Company was made a party to the intervening petition. This company was surety for Cole & Fauber to the City of Staunton by bond in which it agreed “to stand to and abide by and well and truly keep and perform all the agreements, terms and conditions of said contract on his part to be kept and performed, and shall also pay for all labor performed or furnished and for all materials and equipment used in the carrying out of said contract,” etc. The Federal Surety Company made no claim to any part of said funds. The fund brought into court by the City of Staunton will only pay about 60 per cent of the allowed and unpaid claims. Certain of the creditor defendants contended that a decree should be entered in this cause against the Federal Surety Company for the balance of the unpaid claims. The master recommended that such a decree be entered and.overruled the objection of the Surety Company. The exception made before the chancellor by the Surety Company was sustained and cross-errors have been assigned by certain creditors thereon to the decree as entered. The question is therefore raised on this appeal whether such a decree should have been entered against the Federal Surety Company.

As we understand the rule in this State in an inter-pleader suit the only question is the ownership of the identical fund brought into court, and independent questions and accountings among defendants will not be entered upon. (Dyas v. Dyas, 231 Ill. 367, 374; Galpin v. City of Chicago, 269 Ill. 27; Byers v. Sansom-Thayer Comm. Co., 111 Ill. App. 575, 577; O’Connell v. National Surety Co., 185 Ill. App. 458, 459.)

In Dyas v. Dyas, supra, the court said: “In a proceeding of this character the question before the court is, “Who is entitled to the identical property brought into court ? ” It is not the province of the court in such a proceeding to permit a general accounting between the defendants and decree the payment of the balance found due out of the money so brought into court, which is, in fact, the property of the debtor, in the absence of. any equitable claim thereon in favor of the creditor. For example: If the son in this case owed the father $500 for borrowed money, evidenced by an unsecured promissory note, the father could not bring that note into court and obtain a decree that it should be satisfied out of the proceeds of the sale going to the son. The mother here has no claim against the bank for any part of the $6,300, which by the contract is to be paid to the son. Any claim which she has against her son which might otherwise be an equitable charge upon this sum of $6,300 ceased so to be when she entered into the contract of November 8, 1905. It follows that it was not the duty of the court to determine whether or not her son was indebted to her. Sherman v. Partridge, 4 Duer (N. Y.) 646; Willson v. Salmon, 45 N. J. Eq. 131; 4 Pomeroy’s Eq. Jur. (3d ed.) sec. 1320.

“This precise question has not before been determined by this court, but it was considered by the Appellate Court for the First District in the case of Byers v. Commission Co., 111 Ill. App. 575, where a like conclusion was reached.”

The court did not err in dismissing the Federal Surety Company from the case as it claimed no interest in the fund,

For the errors pointed out, the decree of the circuit court of Macoupin county is reversed and the cause remanded to that court with directions to enter a decree in accordance with the views expressed in this opinion.

Reversed and remanded with directions.