text:
    Walter W. Payne, Receiver of Citizens State Bank of Hidalgo, Appellant, v. H. A. Hutson et al., Appellees.

      Opinion filed February 1, 1932.
    Albert E. Islet, for appellant.
    Kassermah & Kassermah, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellant, as receiver of the Citizens State Bank of Hidalgo, filed his hill to set aside a deed to 80 acres of land in Jasper county, dated April 14, 1930, executed by Mayme Hutson and H. A. Hutson, her husband, to Allie Hoggins, alleging same was for the purpose of hindering and defrauding said bank in the collection of an indebtedness of the grantors to the bank, in the form of a judgment, amounting to $2,004, rendered in the circuit court of said county on October 11, 1930.

Appellees answered that grantor, Mayme Hutson, was not the owner of such land, but held same as trustee for the grantee; that she obtained title to same by deed from Allie Hoggins, dated July 10, 1924, and that a written agreement to reconvey to Mrs. Hoggins, upon demand, was by her and her husband executed the same day. That Mrs. Hutson had never been in possession or control of the farm so conveyed; that Allie Hoggins continued in the possession of same down to the time suit was brought, collected the rents therefor and paid the taxes thereon. The answer further averred that the deed in question was executed pursuant to the written agreement to reconvey, and denied any fraudulent purpose. The cause was heard befoie the chancellor, who decreed a dismissal of the bill for want of equity, and this appeal has been perfected to review such decree.

It is shown by the proof that Allie Hoggins, on July 10, 1924, conveyed these premises to Mayme Hut-son, her daughter, taking back, the same day, a written agreement to reconvey to her, upon demand. It is undisputed that the grantor remained in possession of the farm, received all the rents, paid all taxes assessed against same, and that the Hutsons never occupied nor possessed'any portion thereof, and did not exercise any control over the land. Mrs. Hoggins testified that her purpose in making the deed was to protect herself against a possible future loss, which she feared might result from certain, business eng*agements in which she had previously become involved, though there is no showing that she was actually indebted at the time.

When this deed was executed, the Hutsons were indebted- to said bank in an amount of approximately $1,500, which was carried along, — at times diminished by payments, and on other occasions slightly increased by further loans, or by the bank’s purchases of their outstanding notes. The bank’s president testified that he examined the land records of Jasper county, some four or five years prior to the hearing, found the title to the farm to be in Mrs. Hutson, and on the strength of the record, extended credit to her and her husband.

On April 14,1930, the cashier of the bank called upon the Hutsons and requested them to execute a new note for the amount of their indebtedness, to be secured by a mortgage upon this farm. This they refused to do. The deed forming the subject matter of this suit was executed the same day, and two days later was filed for record.

The tenants who had occupied the farm from 1915 to 1930 testified that they had rented from Mrs. Hog-gins, had paid the rent to her, and that they, had never had any dealings with Mrs. Hutson relative to the rentals. It is thus seen that Mrs. Hutson was at no time in possession of the farm; never asserted any claim of ownership to it; had no part in its management or control, and was in nowise connected with it, except as the record disclosed the title to he apparently in her.

It is manifest that by the deed of July 10, 1924, and the written contract for reconveyance, of the same date, a trust relation was created by the parties to such instruments; that Mrs. Hutson held the title to this land in trust for her mother; and regardless of whether or not the last mentioned deed could have been attacked as fraudulent by creditors of Mrs. Hoggins, if such there were, it was competent for Mrs. Hutson to reconvey the premises back to her mother, and her deed to that effect would invest Mrs. Hoggins with a valid title, unless in the meantime rights of innocent third parties had intervened. Springfield Homestead Ass’n v. Roll, 137 Ill. 205, 212.

The controlling question in this case is whether the bank in extending credit, solely in reliance upon the fact that the title appeared to be in Mrs. Hutson, thereby became invested with such equities as will avoid the deed from Mrs. Hutson back to her mother.

It is urged that Mrs. Hoggins is estopped from asserting that she is the real owner, as against the indebtedness to the bank. Before a party may claim the benefit of an estoppel, two elements must concur: first, he must have been in ignorance of the true facts; and, second, must have been devoid of means, either ready or convenient, for ascertaining the real situation. 21 Corpus Juris, 1129, sec. 131; Gallagher v. Northrup, 215 Ill. 563.

Mrs. Hoggins was the equitable owner of the land, in possession and control of same through her tenants. The land was not far distant from the bank, and accessible to its officers. They might have readily and conveniently inquired of the tenants of whom they were renting, and thereby have learned of her claim to its ownership. It appears they also knew the Hut-sons did not reside upon the farm. They relied solely upon the land records of the county. Under the authorities of this State, such is not sufficient, where the party holding the record title is not in the possession or occupancy of the land.

Where land is occupied by a tenant, his possession is that of his landlord, and is constructive notice to the world of the legal or equitable rights of the landlord under whom he holds, and to whom he pays rents, even though the record title stand in the name of another. Gallagher v. Northrup, supra; Smith v. Heirs of Jackson, 76 Ill. 254.

By inquiry of the tenants in possession, the officials of the bank would have elicited the information that such tenants were holding under, and paying rent, to Mrs. Hoggins, and upon being so informed, they could easily have learned from either Mrs. Hoggins or Mrs. Hutson, — both of whom were residing near the bank at the time its officers examined the records,— the character and extent of the former’s claim to the farm. This it was their duty to do before they mig’ht successfully contend for an estoppel as against.Mrs. Hoggins. (Whitaker v. Miller, 83 Ill. 381, 386.) Possession by her tenants charged the bank with notice and knowledge of all facts, concerning her claim of ownership, which it could have ascertained by inquiry of her, the ready means being at its command, but of which it failed to avail itself; hence it is not in position to assert estoppel. Gallagher v. Northrup, supra.

In our opinion Mrs. Hutson reconveyed the farm in question to her mother before the Citizens State Bank of Hidalgo had acquired any equitable rights in the premises. The chancellor therefore correctly dismissed the bill for want of equity.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Edwards

license: Public Domain

text:
    The People of the State of Illinois on Relation of Oscar Nelson, Complainant, v. Dahlgren State Bank, Defendant, Appellant. Joe De Witt et al., Appellees.

      Opinion filed February 1, 1932.
    Gilbert & Gilbert and Harry Anderson, for appellant.
    Creighton & Thomas, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On July 23, 1930, the auditor of public accounts closed the Dahlgren State Bank, appellant, as insolvent. Subsequently, Claud Crocker, on September 5, 1930, was appointed receiver. The appellees, by intervening petitions filed in the circuit court of Hamilton county, in proper proceedings there pending, asked that they be decreed preferred claims on the assets of the bank, to satisfy the value of certain Liberty Bonds previously left with the bank for safe-keeping. The chancellor, upon hearing, held in their favor and decreed that they have preferred claims on the general assets of the insolvent bank, from which decree the appellant has prosecuted this appeal.

The material facts, with one exception concerning bonds to the amount of $600, are not disputed. Appellees deposited Liberty Bonds, amounting to $18,100, with the bank, taking certificates therefor, which stated that the bonds were to be returned to the several owners upon demand and the surrender of the certificates properly endorsed.

The bank, on November 30, 1929, borrowed from the Citizens National Bank of Evansville, Indiana, the sum of $8,000, giving its note therefor, and as collateral security notes aggregating $11,058 face value, secured by real estate mortgages. On February 10, 1930, a second loan, in the sum of $7,000, was obtained from such Citizens National Bank, and $10,000 of the bonds in question were deposited as collateral therefor. On March 4, 1930, a renewal note, to replace the one of $8,000, was executed, and the Citizens National Bank demanding that the collateral therefor be bonds instead of notes secured by mortgages, the Dahlgren State Bank deposited with said Citizens National Bank $5,000 more of appellees ’ bonds, the renewal note stating on its face that the collateral for same was $5,000 Fourth Liberty Bonds and $3,000 on other note. Whereupon said mortgage notes, in such sum of $11,058, were returned to the Dahlgren State Bank, placed in its files, and in such condition came into the possession of the receiver. The proceeds of both loans were deposited in the Citizens National Bank to the credit of the Dahlgren State Bank, and by the latter bank drawn against from time to time, in the course of its business, to cover- clearings with other correspondent banks.

From the time of securing the first loan to the date of its closing, the Dahlgren State Bank received deposits in ordinary course, and made loans aggregating $5,847.19, of which amount $2,884.40 was loaned after February 10,1930. Certain bonds, aggregating $2,500, owned and deposited by appellee Ben Konert, were sold by the bank at his direction, and certificates of deposit executed therefor in his name. About these last mentioned bonds there is no dispute, and they are not involved in this controversy.

At the time the bank closed it held unsecured loans of $82,650.44, and loans secured by real estate mortgages amounting to $24,101.57. Cash in the bank and its correspondents, according to the receiver’s schedule, amounted to the sum of $829.15. On September 18, 1930, the Citizens National Bank sold the bonds deposited with it on account of said loans, for $15,740.41, deducted the amount due it on the two loans, and deposited the balance, or $654.45, to the credit of the Dahlgren State Bank.

It appears from the testimony that $15,600 of appellees’ bonds were sent to the Citizens National Bank. As before shown, $15,000 were deposited as collateral for the two loans respectively of $8,000 and $7,000. What became of the remaining $600 of bonds is not shown by the evidence. All the bonds, sent to the Evansville bank are described in the testimony, as to ownership, number and denomination; however, there is no word of proof as to the time of their transmission or delivery, nor as to which appellees were the owners of the bonds deposited to collaterally secure the different loans, nor as to which appellees were the owners of the $600 bonds sent for some purpose not disclosed by the record.

It is conceded that the Dahlgren State Bank had no title to any of such bonds, nor right to use them for its own purposes; that appellees gave it no authority to do so, and that its conversion of the bonds was unwarranted and wrongful.

The question involved is whether appellees are entitled to have a trust impressed upon the assets of the Dahlgren State Bank which entitled them to a preferred lien thereon as against the general creditors. The relation of appellees to said bank, regarding these bonds, was that of trust, and hence fiduciary in character. Woodhouse v. Crandall, 197 Ill. 104. Furthermore, as a consequence of such relationship, whatever proceeds resulted from the sale or hypothecation of the bonds were impressed with a trust. Leach v. Sanborn State Bank, 203 Iowa 401, 212 N. W. 694, 697, and cases cited.

In order that a preferential claim, based upon the theory of a trust, be enforced against the assets in the hands of the receiver of an insolvent bank, the trust funds must be traced into the assets. In Woodhouse v. Crandall, supra, the rule in Illinois is stated to be: “So long as it can be identified, either as the original property of the cestui que trust, or as a product of it, equity will follow it, and the right to reclaim it fails only when the means of ascertaining its identity fails.”

In cases where the trust property has been converted, and the proceeds can be traced into specific funds or specific identified property, the preferred claim cannot be allowed against the general assets of the trustee, but only as to such fund or assets as it is shown the proceeds of the trust property went into, and only to the extent they were placed therein. Woodhouse v. Crandall, supra, at page 116; Macy v. Roedenbeck, 227 Fed. 346; Cavin v. Gleason, 105 N. Y. 256, 11 N. E. 504; Drovers’ & Mechanics’ Nat. Bank v. Roller, 85 Md. 495, 36 L. R A. 767.

At the time of making the $8,000 loan on November 30, 1929, the Dahlgren State Bank took from its assets notes secured by real estate mortgages of the face value of $11,058, and deposited same as collateral for the loan. On March 4, 1930, this note was renewed; at which time there was deposited $5,000 more of such bonds, which, together with $3,000 of the amount deposited with the $7,000 loan, was stated on the face of the renewal note to be its collateral. Upon this being done, the Citizens National Bank returned to the Dahlgren State Bank such notes in the sum of $11,058. The consideration for the. return of these notes was the deposit of the Liberty Bonds. In other words, by turning over to the Citizens National Bank the bonds belonging to certain of appellees, the Dahlgren State Bank redeemed its own notes which had passed from its control when the $8,000 loan was originally made. The bonds were exchanged for the notes, which found their way back to the files of the Dahlgren State Bank, and thus came into the possession of the receiver. The effect of the transaction was that the latter bank converted such bonds, arid received in return the said notes. It thereby changed the form of the trust property, which, in its altered state, came into the custody of the receiver. A preferred claim should therefore be allowed against said notes, or their collectible value, to the extent of the bonds which were deposited in their stead, in favor of such of appellees as are the owners of such bonds, — the unfortunate feature of which is that the record is devoid of any evidence bearing upon the question as to which of appellees owned said bonds; hence the chancellor, being unable to find the ownership of such bonds, could not decree a preferred claim against the avails of the notes for which they were substituted.

The proceeds of the bonds, collaterally deposited to secure the $7,000 loan, were passed to the credit of the Dahlgren State Bank, and by it used in ordinary course of business. They were mingled with the general funds of the bank; however, they did not lose their character as trust funds, and were to be regarded, in equity, as in the form of cash on hand in such bank and its correspondents, and under the authority of Woodhouse v. Crandall, supra, such of appellees as were the owners of the bonds represented by such fund in its converted state could have priority against the amount of cash on hand in such bank and its correspondents at the time it was closed as insolvent, which the proof shows to be $829.15.

To establish such priority it would be necessary to prove the ownership of the bonds collaterally securing said $7,000 loan, and as before stated, there is nothing in the proof to show which of appellees were such owners. The $600 bonds, or their proceeds, not being traced into any specific fund or property, no preferred claim could be allowed their owners because of their conversion.

Appellees urge that from November 30,1929, to date of the bank’s closing, it made loans to its customers, and that they should have a preferred claim against the notes representing such loans, or their collectible avails. It appears that during this time the bank was taking general deposits to a considerable amount from its customers. Whether the loans in question were made from such general deposits, or from the funds derived from the placing of the bonds as collateral, does not appear in the proof. Moreover, the presumption exists that the officers of the bank did not loan the trust funds. Leach v. Sanborn State Bank, supra. There is nothing in this contention.

As to the $654.45 deposit in the Citizens National Bank, being the balance remaining after deducting its claims against the Dahlgren State Bank from the sum realized from the sale of the $15,000 of bonds, this of course belongs to- such of appellees as were the owners of the bonds so sold. However, as previously observed, $15,600 of bonds belonging to appellees were sent to the Citizens National Bank, of which amount $15,000 were sold. There.were 14 appellee owners of the gross amount of bonds so delivered to such Citizens National Bank. Which ones were the owners of the amount sold has not been shown; hence there is no way of determining which of the 14 owners is entitled to such sum now on deposit with the latter bank, nor which person or persons owned the $600 bonds as to whose disposition the record is silent.

The chancellor decreed that appellees have preferred claims against the general assets of the insolvent bank, to be paid by the receiver thereof. Under the authorities heretofore cited, no power existed to declare preferred claims against the general assets, but only against such of the assets as were shown to be the altered form of the converted trust property.

There was no proof as to who owned the bonds deposited as collateral for the $8,000 loan; no evidence as to whose bonds were pledged to secure the $7,000 loan. The funds or property against which these were chargeable as preferred claims were not shown, nor would the avails as to each be the same; neither was there any testimony as to who owned the $600 of bonds. Without these items of proof no decree could be entered as to the preferred claims of the respective appellee owners, as the chancellor could not determine which fund or property to charge with the individual claims of the various bond owners.

The decree is reversed and the cause is remanded.

Reversed and remanded.


text:
    Anna Craig, Appellant, v. Mabel Tucker, Administratrix of the Estate of Henry Tucker, Deceased, Appellee.

      Opinion filed February 1, 1932.
    John W. Freels, for appellant; Ropiequbt & Freels, of counsel.
    T. A. G-asaway and Ben M. Creamer, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Mabel Tucker, administratrix of the estate of Henry Tucker, deceased, appellee, obtained a verdict and judgment for $3,000 in the city court of East St. Louis, against Anna Craig, appellant, for the death of her son, the said Henry Tucker, his death being caused, as she claimed, by reason of the negligence of a servant of appellant in driving an automobile.

The declaration, which was in case, consisted of three counts; the first charging general negligence; the second and third averring wilful and wanton misconduct. To this the appellant filed the general issue, together with a special plea denying possession, control or operation of the car, either directly or by agent.

The facts, as shown by the proof, are that on December 27,1930, appellant, a visitor at the home of Bertha Rochus, her sister, in East St. Louis, at about nine o’clock p. m., directed her nephew, Charles Rochus, to deliver a message to her aunt in Collinsville, and to use her Chrysler sedan. Decedent, Henry Tucker, was present at the time, and was to accompany Rochus. Appellant directed her nephew, in the presence of Tucker, to drive carefully, not too fast, to hurry home, and not to be out late.

Rochus and Tucker took the car, rode around East St. Louis for a time, during the course of which they met and took into the car two young women, Laura Bankston and Adele Zepart; then, instead of driving northerly to Collinsville, to fulfill the errand, they drove southerly, in the opposite direction, to Maple-wood, where they stopped and attended a dance for awhile; then driving still further south towards Dupo, and turning around about 10:15 p. m., driving then to East St. Louis, thence northerly to Collinsville, through Collinsville, to the end of the cement pavement, on what is known as the Lebanon road, where they stopped, and where Rochus is said to have remarked they were on the wrong road.

It appears they then turned around and started southwesterly, driving at a high rate of speed, — in the neighborhood of 50 miles an hour, — toward the business section of Collinsville. At a sharp curve in the Lebanon road, near its intersection with the Blackjack road, Rochus, who was driving, ran into a telephone pole, wrecking the car, causing his own death almost instantaneously, and inflicting injuries on Tucker from which he in a few moments died.

It further appears that during their driving, after they started, Rochus sat in the front seat with one young lady, while Tucker and the other girl occupied the back seat. Also, that another car, — a Peerless coupe, driven by one George Kosydor, and occupied by him, two young women and another young man, had been driving around with the car in which Rochus and Tucker were riding, for about two hours prior to the accident, and that at the time of its occurrence the Kosydor car had stopped and was waiting at a curve for Rochus ’ car to come up.

. The aunt to whom the message was to have been delivered lived on a cross street, a few blocks north of the Lebanon road. The car in question had run past such street, going easterly, and on its return was, — at the scene of the accident, — about 10 or 12 blocks distant from the aunt’s home.

The principal question in the case is whether, at the time of the collision, Eochus was acting as the servant of appellant, or was pursuing his own interests exclusively. The law governing the question is well understood, though somewhat difficult of application. It must appear that the person inflicting the injury was, at the time, in the employ of the person sought to be charged, and engaged in the business of the master, as well as acting within the scope of his employment. If the servant, at such time, was pursuing, exclusively, a purpose of his own, the master would not be liable for his negligence, though it appears he was, at the time, using instrumentalities provided by the master, necessary to discharge the functions of his agency. Cohen v. Fayette, 233 Ill. App. 458.

“If the servant step aside from his master’s business for some purpose wholly disconnected with his employment, the relation of master and servant is suspended. The act of the servant, during such interval, is not to be charged to his master.” Johanson v. Johnston Printing Co., 263 Ill. 236, 240.

That Eochus, accompanied by Tucker, who had heard the directions of appellant, had departed from the business of his principal, when they .procured the company of the young ladies, went in an opposite direction, to a different town, attended a dance and rode around for two hours in company with another car containing a quartette of young people, cannot be doubted, and in fact appears to be conceded by appellee, who contends that when Eochus finally started for Collins-ville, the suspended agency was resumed, and that he was then acting within the scope of his employment.

It was incumbent upon appellee to show that the pleasure ride had ceased, and that at the time of the accident the suspended agency had been resumed. Johanson v. Johnston Printing Co., supra.

The two young women in the Eochus car, who knew all that transpired, do not testify to any fact showing either an intention or effort to reach the house of the aunt and deliver the message. It is as probable, or more so, that Eochus was still bent upon further pleasure driving. This would seem to follow from the fact that he was driving along one of the principal city streets, when the accident happened, at the rate of approximately 50 miles an hour. This excessive speed precludes the inference that he was looking for the residence of the aunt; also, that the other car, which had accompanied them for two hours, and which had turned at the pavement’s end ahead of them, was waiting, at the curve, to rejoin them. This indicates that the drivers of the cars had in mind a continuance of their pleasure trip.

We do not think that appellee has shown, by the greater weight of the evidence, that the suspended employment had been resumed at the moment of the accident. In our opinion the trial court should have awarded a new trial.

Reversed and remanded.


author: Mr. Justice Fulton

text:
    Guy C. Rogers, Defendant in Error, v. Albert N. Guthrie, Plaintiff in Error. Consolidated with Albert N. Guthrie v. Guy C. Rogers.
    Opinion filed February 1, 1932.

      Curtis' Williams and Conrad Schul, for plaintiff in error.
    E. M. Peavler, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.

Defendant in error filed a bill in chancery against plaintiff in error for an accounting and a dissolution of an alleged partnership. Shortly after, the plaintiff in error brought a suit in replevin against defendant in error for some cattle and both suits were returnable at the same term of the circuit court.

The parties to the suits are brothers-in-law and by agreement of both, the two suits were consolidated and referred to the master in chancery to hear proofs and report his conclusions.

The proof shows that on or about October 25, 1924, defendant in error Rogers moved to a small farm owned by plaintiff in error Guthrie. Rogers took with him his household goods, three cows and a couple of horses. About January 1, 1925, the parties entered into an arrangement whereby Guthrie was to furnish the farm and the capital and Rogers was to do the work and furnish the feed for the cows. Rogers was to receive 60 per cent of the profits derived from a milk or dairy business and Guthrie the remaining 40 per cent. Shortly afterwards' Rogers became dissatisfied with this contract and they entered upon a new agreement, whereby Rogers was to receive 75 per cent of the profits and Guthrie 25 per cent.

About July 1, 1925, Rogers became dissatisfied with this arrangement and announced that he was getting nothing out of the business. After that and up until about April 1, 1928, Rogers remained on the farm under the rather indefinite understanding that he was to go ahead and turn over to Guthrie what he could. Rogers milked the cows, marketed the milk, took out of the proceeds sufficient to support himself, wife and six children and turned over various amounts to Guthrie at irregular intervals.

Guthrie furnished the farm, paid the taxes, both real and personal, furnished the cows, bought hogs for the place and furnished the capital for running the business. Rogers kept no books and his testimony as to dates and amounts was either from memory or from memoranda made long after the transactions occurred. Guthrie kept books on the amounts he received and paid out, but had no detailed account of the business affairs. After Rogers left the farm he had a meeting with Guthrie and no settlement was made of their partnership affairs, although Guthrie claimed that Rogers owed him $363.96.

The master heard the proofs and found that a partnership existed; attempted to state an account; found that Rogers was entitled to $75 per month for work and labor; that he was entitled to one-half of the cattle and the hogs and that he should be charged with $30 per month for the support of himself and his family. With slight variations the circuit court approved the master’s report and entered a decree in accordance with the same.

There is no evidence upon which to sustain or base the finding of the master that allowed Rogers $75 per month for work and labor, or to charge him $30 per month for the support of himself and family. Neither is there any evidence that warrants finding one-half of the cattle and hogs to belong to Rogers. Indeed, the evidence leaves the partnership accounts in such doubt and uncertainty that it is impossible from the record to determine the true state of the account, or to do justice between the parties. It is apparent that the master did his best to state an account and to do justice between the parties, but it is equally apparent that his conclusions are largely the result of conjecture, and an anxiety to adjust the controversy, rather than to state an exact account. In the case of Donaldson v. Donaldson, 237 Ill. 318, the court said, “In a case of this kind, if the evidence leaves the state of the account in such doubt and uncertainty that a court is unable to say whether anything is due from either partner, and how much, it is manifestly impossible to do justice between the parties and the only course open is to dismiss the bill for want of equity.”

There is nothing in the testimony of any witness that suggests an agreement whereby Rogers should acquire ownership to any portion of the cows.

For the reasons herein stated, the ownership of the cattle should be decreed to be in the plaintiff in error, and the bill of the defendant in error dismissed for want of equity.

Reversed with instructions.


text:
    Amanda Spies, Appellee, v. David E. Sussman, Appellant.

      Opinion filed February 1, 1932.
    Warnock, Williamson & Burroughs and Mann & Coleman, for appellant.
    Philip Gr. Listeman and Harold J. Bandy, for appellee ; Keefe & Listeman, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an action on the case for personal injuries suffered in an automobile collision. There was a trial before the court and jury, which resulted in a verdict in favor of appellee for the sum of $1,950. Motions for a new trial and in arrest of judgment being made and overruled, judgment was entered on the verdict for $1,950, from which judgment appellant prosecutes this appeal.

Although the appellant assigns several reasons why the case' should be reversed,' two main questions are urged and argued in the briefs. It is first contended there was no proof of agency sufficient to justify a verdict.

Ellis Sussman, brother of the appellant, was driving the latter’s car at the time of the accident, and plaintiff’s principal proof of agency was the testimony of Clarence Spies, the husband of the appellee. He testified to a conversation with appellant at the hospital shortly after the accident, and in referring to appellant said, “He said he was the owner of the car and he sent his brother in for some merchandise and he wanted to know who was injured so he could report. ’ ’ Again he answered, still referring to appellant, “He said he was the owner of the car and he sent his brother to St. Louis. ’ ’

When appellant was on the stand he was asked about this conversation and answered that he could not remember. He did not positively deny making the statements above outlined.

.Appellant seeks to discredit the above testimony of Clarence Spies, because it was shown that in two previous trials growing out of this accident he did not testify to such an admission by appellant. The criticism would have greater force if appellant had not almost wholly failed to deny making the statements testified to by Spies. The further argument that Ellis Sussman was not the agent of appellant, but was the agent of some corporation in which David Sussman was a stockholder is without weight in the light of the testimony in this case.

We believe the testimony developed sufficient facts to submit to the jury the question of whether or not the relationship of principal and agent existed, and it was for them to say what testimony they gave greatest credence.

The other important question in the case, assigned as error by appellant, wa,s the denial of the motion to withdraw a juror and continue the case because on -redirect examination of Clarence Spies the following occurred:

“Q. Mr. Spies, with reference to this conversation between you and Mr. David Sussman, you can tell the jury just what Mr. David Sussman said there.
“Mr. Mann : That has been gone over; we object to the repetition.
“Q. What was the purpose of Mr. Sussman coming there?
‘ ‘Mr. Mann : I object to that. He couldn’t know his purpose for coming there.”

Objection overruled.

“A. He said he came there to make a report of the accident to the insurance company.”

The court was then asked to instruct the jury to disregard the answer and motion made to withdraw a juror and continue the case.

“The Court: Motion denied. The jury will disregard the answer of the witness.”

The appellant contends that in an action to recover for personal injuries, caused by the negligence of a defendant, it is reversible error for the plaintiff tó inform the jury, either directly or indirectly, that the defendant is protected by casualty insurance against" liability, and cites authorities to the effect that 11 any reference to the fact that a party sued is protected by an insurance policy from the payment of damages, is improper” and that so doing is reversible error. McCarthy v. Spring Valley Coal Co., 232 Ill. 473, and other cases to a like effect.

In a case where there was a close question on the facts, or in a case where the verdict seemed excessive, testimony similar to that given in this case might be cause for reversal, but we are inclined to think that the cases of Smallen v. Aronson, 253 Ill. App. 540, and Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586, are more like the instant case than any other brought to our attention. In the Smallen casé it seems to us the opportunities for the jury to infer that the defendant was protected by insurance were greater than in this case, and in the case of Eldorado Coal & Coke Co. v. Swan, the court said:

“Appellant asks that the judgment be reversed because appellee’s counsel, after adverse rulings of the court, asked questions which implied that the appellant was insured in a casualty company, and that the judgment, if one should he rendered, would be paid by such company. Error is usually assignable only on the rulings of the court. The court promptly ruled against appellee’s right to inquire into the irrelevant matter suggested by the questions, but the questions were repeated to other witnesses. The conduct of counsel in thus seeking to place before the jury matters not involved in the issue is censurable in the highest degree, and if the amount of the verdict were such as to raise a suspicion in our minds that the jury had been influenced by this misconduct, or if the case were a close one on the facts, we would not hesitate to reverse the judgment for this reason alone. But since the verdict was rather below the usual amount awarded where the injury has been sustained such as the evidence shows here, and the case is reasonably clear on the facts, there is no reason to suspect that the jury were actuated by prejudice or passion. ’ ’

We believe the above analysis fits the facts in the present case. The verdict was not large or excessive; the case was reasonably clear on the facts, and the judgment of the circuit court was proper and is affirmed.

Affirmed.


text:
    Mary Mabel, Administratrix of the Estate of John Dooling, Deceased, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railroad Company, Appellant.

      Opinion filed February 1, 1932.
    Pope & Driemeyer, for appellant; Samuel W. Baxter, of counsel.
    D. H. Mudge, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal by appellant from a judgment against it for $3,000, entered upon the verdict of a jury in an action by Mary Mabel, as administratrix of the estate of John Dooling, deceased, to recover damages for the death of the said John Dooling.

The declaration contained three counts, each charging the operation by appellant of its railroad extending through the Village of Madison and across Market street, and the death of John Dooling resulting from a collision between one of appellant’s trains and an automobile in which he was riding.

The usual allegations of due care on the part of the decedent were contained in "each count. The first count charged a violation of the statutory duty to blow a whistle or ring a bell. The second count charged general negligence in the operation of the train and the court properly directed a verdict as to the third count which charged violation of a speed ordinance of the Village of Madison.

The appellant seeks reversal on the grounds that the decedent was guilty of contributory negligence and that the verdict was manifestly against the weight of the evidence.

The accident happened to decedent while he was riding in an automobile being driven by one Rudy Gibson, at the Market street crossing in the Village of Madison. Appellant’s trains are operated through the village on tracks running north and south and immediately west of, and parallel to State street. This street and appellant’s tracks are crossed by Market street which runs east and west. The intersection of Market street and appellant’s southbound train track is approximately 75 feet west of the west line of State street. State street is paved and is also designated as Route Four of the Illinois State Highway System.

Appellee’s theory is that the car hi which decedent was riding drove south on State street and turned west on Market street; that no signal was sounded by the train for the crossing, and that the crossing watchman was standing at Ms shanty on the south side of the crossing and did not attempt to indicate that a train was approaching.

These facts are testified to by two witnesses, Walter Lintz and James Robertson. Lintz testified that as he drove south on State street he was racing appellant’s train and that when he was about two or three hundred feet away he saw the flagman standing at the side of Ms shanty talking to another fellow, but did not see any disc or stop sign in Ms hands. He also testified that the whistle did not blow and the bell did not ring. Robertson testified he saw two men standing at the shanty conversing and did not see any crossing watchman in the street. He also testified that he did not hear any bell sounded or any whistle blown.

As opposed to this eight eyewitnesses testified positively that the watchman stood in the center of the crossing with his stop sign raised indicating that a train was about to pass. Five of these witnesses were entirely disinterested, and were in a better position to see what happened than were appellee’s witnesses. Four or five of the witnesses testify that the bell was ringing and the whistle sounded.

All the witnesses agree that after the car in wMch decedent was riding turned off of State street and went west on Market street for 75 feet to the point of the accident, the occupants of the car had a clear view to the north, from which direction the train was approaching.

While a court of review is reluctant to set aside the verdict of a jury, yet, where after giving consideration to the variant stories of the witnesses, it is of the opimon that the verdict is clearly against the weight of the evidence, it is its duty to set it aside and reverse the judgment. “A performance of tMs duty is absolutely essential for the preservation of the rights of citizens and property owners.” Chicago & Erie R. Co. v. Meech, 163 Ill. 305.

Many decisions might be cited in support of this well recognized doctrine. In view of the somewhat unsatisfactory testimony of- appellee’s witnesses and the very definite and positive statements of appellant’s witnesses that the flagman was in the center of the crossing attempting to give the customary warning and that the bell was sounded and the whistle blown, coupled with the further fact that the occupants of the car in which decedent was riding had a clear and unobstructed view of the approaching train for a distance of at least 75 feet, we find that the testimony clearly established contributory negligence on the part of the decedent and that the verdict is manifestly against the weight of the evidence.

11 One who has an unobstructed view of an approaching train is not justified in closing his eyes ... in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law or negligence of others and offer such assumption as an excuse for failure to exercise care. ’ ’ Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627.

“It is the duty of a passenger in a vehicle, where he has an opportunity to learn of danger and to avoid it, to warn the driver of such vehicle of approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger.” Dee v. City of Peru, 343 Ill. 36.

For the reasons indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Martin C. Reichmann, Appellee, v. Robertson’s, Inc., Appellant.

      Opinion filed February 1, 1932.
    Kramer, Campbell, Costello & Wieohert, for appellant.
    Farthing & Farthing and John S. Marsalek, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Martin C. Beichmann sued to recover for personal injuries charged to have been caused by specific negligence of the agents and employees of the appellant in allowing a ladder or stairway to be in an unsafe and unattached condition at the time the appellee attempted to use it in coming down from a loft in the warehouse of appellant. A plea of not guilty was filed to the declaration. At the close of all the evidence the appellant moved for a directed verdict which was denied. Appellee then presented a written motion asking the court to give the jury a peremptory instruction finding appellant guilty, and directing them to assess appellee’s damages. This motion was granted and after reading the written motion and instruction, the court then orally instructed the jury as follows:

, “Under the testimony in this case, gentlemen, there can be but one verdict, and that in favor of the plaintiff, so the court will allow the motion, and instructs you to return that verdict, and the only question in the case for you to consider is the amount of damages; if the attorneys desire, they may proceed to argue the question of damages.”

There was a verdict for $12,500, motion, for new trial denied and judgment entered oh the verdict.

Appellant urges as grounds for reversal that the court erred in giving the peremptory instruction, in orally instructing the jury, because the appellee failed to prove knowledge on the part of the appellant of the dangerous condition of the ladder and that the verdict was excessive.

Appellant was the owner of a general store in East St. Louis, with a warehouse just a few feet in the rear of the main building. Across the rear end of the warehouse was a loft seven or eight feet above the cement floor. Access was had to the loft by a movable stairway which was not attached to the floor of the building. The ladder or stairway could be moved back and forth on an I-beam on which it rested, fastened by an iron hook. Several times a day the employees would remove this hook and take the stairway down to permit trucks driven into the building to be unloaded.

On April 21, 1930, appellee, who was a farmer, brought a load of hogs to town and on his way home stopped at appellant’s store to buy some feed. He had traded in the store before, but had never been in the warehouse where the feed was kept. "When he made his wants known he was waited upon by a salesman by the name of Chaplin. He took appellee and his young son back to the warehouse where they met another of appellant’s salesmen by the name of Rein-hart. Chaplin took appellee up to the loft to show him the feed. This was the first time appellee had ever used the ladder or stairway and the hook was not visible to him when he ascended the stairway. After about 10 minutes in the loft, appellee started back to the first floor. When he stepped on the first step of the ladder it skidded out from under him and he fell with it to the first floor, a distance of seven or eight feet. He suffered a compound fracture of the right elbow and was otherwise injured. He was taken to the hospital and remained there 13 days under the treatment of a doctor. He made frequent trips to the doctor’s office for treatment after he left the hospital. His right elbow is permanently injured, but he has substantially recovered from the other injuries.

No testimony was introduced on the part of appellant and it is clear that the injury to appellee was due to the negligence of appellant in allowing the ladder or stairway to be in an unsafe and unattached condition at the time appellee attempted to use it in coming down from the loft, and while appellee was in the exercise of due care for his own safety.

In our opinion there is no basis upon which reasonable minds could disagree as to that conclusion. That being true, the court did not err in directing the jury to assess damages in favor of appellee. Richardson v. Moore, 254 Ill. App. 511.

Appellant was charged with the duty of providing reasonably safe premises for its patrons, and proof that it had actual knowledge of the dangerous condition of the stairway was not. necessary.

Generally speaking, a mercantile establishment, open to the public for the transaction of business, impliedly invites all persons having business with such establishment to enter upon such premises, and impliedly warrants the premises to be reasonably safe for the purpose for which they are designed. Pauckner v. Wakem, 231 Ill. 276.

The action of the court in orally instructing the jury was not in accordance with the Practice Act, Cahill’s St. ch. 110, U 73, but the judgment should not be reversed on that account and a new trial awarded if the verdict and judgment were clearly right and the plaintiff could not succeed upon another trial. Daily v. Boudreau, 231 Ill. 228.

The verdict was large but was not so excessive as- to warrant a reversal of the case. The judgment is affirmed.

Affirmed.


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    Dr. R. F. Stanton, Appellee, v. American Zinc Company, Appellant.
    Opinion filed February 1, 1932.
    Rehearing denied February 22, 1932.
    Whitnbl & Browning, for appellant.

      McGlynn & McGlynn, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

The appellee, Dr. B. F. Stanton, sued and recovered a judgment in justice court against American Zinc Company, appellant herein.

On appeal to the circuit court of St. Clair county and on trial before a jury, the appellee recovered a verdict for $350. Motion for new trial was denied and judgment entered on the verdict. This appeal is prosecuted to reverse such judgment.

It is contended by appellant that the record does not disclose any testimony in support of either an expressed or implied contract on its part to pay for the services of appellee, who rendered medical and surgical services to John Becklein, one of appellant’s employees.

The appellee introduced evidence to show that John Becklein received a rather serious injury to his right arm and hand in appellant’s plant. He received some first aid treatment in the office of appellant and was immediately taken to St. Mary Hospital for further medical and surgical aid. The appellee received a call from someone and went immediately to the hospital where he performed a major operation on Becklein’s arm and hand- and afterwards attended him regularly for five months. No question is raised as to the reasonableness of appellee’s bill for services. Appellant had a contract with the United States Fidelity & Guaranty Company for the payment of compensation to injured employees. After the injured man had been discharged from the care of the doctor he was told by Mr. Hagen, the cashier of the American Zinc Company, to see a Mr. Stanford about the settlement of his claim. Stanford was the representative of the Surety Company and made the settlement with Becklein.

At the time the claim was adjusted Recklein asked about the payment of the hospital bill and also the bill of appellee for medical and surgical services. He was told by Stanford that the aforesaid bills would be paid by them.

The chief controversy arises over the calling of appellee at the time of the injury. William Recklein, brother of the injured employee and a foreman of appellant, testified that he went into the main office of the company and told Mr. Hagen to call Dr. Stanton, the appellee, and not to let anybody work on his brother until Dr. Stanton got there; that he did not personally call the appellee, nor did he know who did actually send the message to the doctor. Hagen testified that Martin Recklein, another brother of the injured employee, insisted on them calling Dr. Stanton; that he told Martin he would call Dr. Griffith; that he did call Dr. Griffith and he was out, but that he did not call Dr. Stanton. Dr. Griffith testified to receiving a call; that he went to the hospital and notified John Recklein that if he had any other doctor he would have to pay the bill himself. His statements are denied by Recklein, by Dr. Stanton and one of the Recklein brothers. In this state of the proof can it be said that there was an implied promise on the part of appellant to pay for service of appellee?

It was the province of the jury to determine whether or not there was any protest made by appellant as to the calling of appellee and his continued services rendered to Recklein where there was a direct conflict of testimony on that point. Appellee supplied the needed medical and surgical attention to the employee continuing over a period of five months with the knowledge of appellant and without protest. When Recklein applied for settlement they sent him to the surety company, with whom they had a contract. There he was told that the bill of appellee would be paid by them.

We think that the evidence tends to establish the fact that appellee understood that he was employed by appellant through the call received at the time of the injury and the circumstances are such that if that was not the understanding’ of appellant they should have given him notice. Pardridge v. La Pries, 84 Ill. 51.

We think the surety company under the circumstances proven in this case was plainly the agent of appellant in making settlement with Recklein and further ratified the implied contract in their statements to him at the time settlement was made.

The judgment of the circuit court will therefore be affirmed.

Affirmed.


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    In re Estate of Maggie Ingram Clark, Deceased.

      Opinion filed February 1, 1932.
    John H. Meyer and K. D. Cummins, for appellant; W. C. Kane, of counsel.
    Lloyd H. Melton and Charles H. Thompson, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Maggie Ingram Clark died on the second day of February, A. D. 1931, a resident of Saline county, and seized and possessed of real and personal estate. On February 6, 1931, Mollie Tavender, appellee herein, filed a petition in the county court of Saline county setting up that she was the sister and sole and only heir at law of the said decedent, and asked that she be appointed administratrix of the estate. She was duly appointed, filed her oath and bond and letters of administration were thereupon issued to her. On the same day L. R. Clark, the appellant, filed a petition in said court representing himself to be the husband of Maggie Ingram Clark, that letters had been issued to Mollie Tavender upon fraudulent representations, that the same should be revoked and that under the law he, as the surviving husband, was entitled to be named administrator of his wife’s estate. He also filed a relinquishment of his right to be appointed administrator, and filed a petition asking that Grace M. Meyer be appointed administratrix. ,

On February 21, 1931, on a further hearing the county court found that L. R. Clark was the husband of Maggie Ingram Clark at the time of her death, and was entitled to nominate the administratrix. By the same order the county court revoked the letters of administration theretofore issued to Mollie Tavender and named Grace M. Meyer administratrix of said estate.

An appeal was taken from the decision of the county court to the circuit court of Saline county. After the tailing of testimony and a full hearing, the circuit court found the issues in favor of appellee and dismissed the cross petition of L. R. Clark, who prosecutes the appeal from that order to this court.

Two primary questions arise on the record in this case. First, was the marriage of L. R. Clark and Maggie Ingram Clark proven by competent evidence ; and second, the validity of a divorce decree - granted to Maggie Ingram Clark from Lewis Clark in the city court of the City of Harrisburg, Illinois.

The appellant sought to prove the marriage by introducing in evidence the bill for divorce filed by Maggie Ingram Clark against Lewis Clark, in the city court of the City of Harrisburg, and a transcript of the testimony taken at the hearing on said bill; also by oral proof on the part of L. R. Clark, who testified to his marriage with Maggie Ingram Clark and the fact that he had resided with her up until the time of her death. He testified to the date and place of his marriage and where they had lived since the marriage. He also offered in evidence a marriage certificate which he says was issued to him at the time of the marriage, but the court properly refused its admission because it did not properly, identify the parties. The names of the contracting parties in the marriage certificate were given as Joseph Clark and Anna Ingram. Mollie Tavender, the appellee, was also called as a witness in behalf of appellant and testified to being present in the house where L. R. Clark and Maggie Ingrain Clark were living together, and to hearing a conversation between the two during a quarrel, where Mrs. Clark told L. R. Clark that she had procured a divorce from him.

The appellee insists that the statements in an unsworn bill in chancery are not admissible as evidence of admissions in another proceeding, but we believe there is ample authority to the contrary in cases of this character, — Prescott v. Fisher, 22 Ill. 390, and Schmisseur v. Beatrie, 147 Ill. 210. Both cases hold that the filing of a bill for divorce is evidence against the complainant of the admissions which it contains. In the case in the city court of Harrisburg Maggie Ingram Clark followed the filing of the bill with her sworn testimony concerning the marriage. The oral testimony given by Mollie Tavender contained further admissions on the part of Maggie Clark as to the marriage.

Record evidence of marriage is not required and the admissions of the party may be sufficient to prove marriage. Lowery v. People, 172 Ill. 466. Conceding that some of the testimony offered on the part of L. R. Clark is not competent, we believe there is sufficient testimony in this record to prove the marriage between L. R. Clark and Maggie Ingram Clark.

The appellee introduced evidence to sustain the validity of the divorce decree entered in the city court of Harrisburg and while the appellant points out irregularities in the affidavit of nonresidence, the main question was whether or not the city court acquired jurisdiction of the person of Lewis Clark through publication, no other service being secured in the cause, and no attempt being made to subject any property of appellant to any lien or charge. Prior to 1929, our courts held:

“An action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature.” Bushnell v. Cooper, 289 Ill. 260. “A city or municipal court can only acquire jurisdiction in actions in personam by the service of original process when such service is had within the territorial limits of the city or municipality.” Adams v. Adams, 251 Ill. App. 45; Wilcox v. Conklin, 255 Ill. 604.

The city court of Harrisburg never acquired any jurisdiction of the person of L. It. Clark and therefore the-decree in the divorce proceedings in that court was void and did not sever the marriage relation between the parties. .

It is our judgment that the order of the county court of Saline county was correct and that the judgment of the circuit court should be reversed with directions to enter a judgment for appellant in accord with the views herein expressed.

Reversed with directions.


text:
    Albertine Hertel, Appellee, v. Elizabeth Rebhan, Appellant, and Walter J. Ruediger.

      Opinion filed February 1, 1932.
    W. E. Knowles, for appellant.
    Farmer & Klingel and Turner & Holder, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Judgment was entered by confession against the appellant and Walter J. Ruediger on a note dated July 3, 1929, for $1,000, the instrument being payable to Fred Hertel and by him duly assigned to his wife, the appellee. The judgment was afterwards opened and the defendant given leave to plead.

The declaration was in the usual form of narr. and cognovit with copy of note attached. The appellant filed the general issue and eight special pleas. The special pleas interposed two defenses, one that the note was procured by unlawful duress, the other that the consideration for the note was the compounding of a felony.' Replication to each special plea, denying the allegations thereof, was filed by appellee.

The facts show that Ruediger had collected and embezzled $2,600 belonging to Fred Hertel on a note and mortgage given Ruediger to collect. Shortly before the execution of the note in controversy the appellee and her husband learned that Ruediger had collected on the loan and promptly appeared at his office to demand payment of the money to them. Ruediger sought further time and was given until July 3, 1929, to make settlement. On the morning of that date appellee and her husband went to the office of Ruediger who again asked for further time to raise the money, and was told that he could have until 11:30 that morning to make settlement and if he failed to have the money at that time, appellee and her husband would take the matter to the State’s attorney. Ruediger finally offered to pay them $1,600 in cash and to deliver to them a note for $1,000 signed by himself and appellant. Appellee and husband left the office, but came back later and said they would accept the offer, providing it was ready for settlement by 11:30 that morning. Later the $1,600 was paid in cash and the note for $1,000, which is now the basis for this suit, was delivered to appellee and her husband in satisfaction of the money embezzled.

Ruediger testified in a deposition that he went to appellant’s home and got her to sign the note with him. Otwell, who was Ruediger’s attorney at the time, testified that appellee spoke to him about the $2,600 Ruediger had collected on their loan and told him that “unless he made payment of it she would see the State’s attorney.”

Appellant offered to testify that when Ruediger brought the note to her for signature he told her that appellee and her husband were threatening to send him to the penitentiary unless appellant signed the note and that she signed it at his request to save him from criminal prosecution. She also offered to prove by her own testimony and that of other witnesses that several months after the execution, of the note, appellee said that it was her intention to prosecute Ruediger if he had not given the note in question.

Objection to all of this proffered testimony was sustained and the evidence excluded. At the close of all the proof the appellant moved for a directed verdict which was denied.

The court then allowed the motion of appellee and directed a verdict for her in the sum of $1,094.28.

The main questions in the case are whether or not the note was executed under duress and whether or not the appellee was guilty of compounding a felony.

In support of these defenses appellant relies largely on the cases of Johnson v. Lind, 217 Ill. App. 360, and Kronmeyer v. Buck, 258 Ill. 586. In the Johnson case the court found there was no evidence from which a reasonable inference couldi be drawn that Johnson took the money he was accused of stealing, and therefore the court was fully warranted in finding that the note and mortgage were without consideration and that the evidence tended to show they were executed under duress.

In the Kronmeyer case the court in passing on the testimony said there Was nothing in the surrounding circumstances that supported the theory that Kronmeyer was guilty of embezzling a considerable sum of money. Kronmeyer testified that he was called into the lawyer’s office, charged with embezzlement, jail pointed out to him, told he would be sent there unless the matter was adjusted, told that a police officer was outside the door and threatened with immediate prosecution. He was led to convey away his home, was urged to get someone to sign a note with him for $1,500 and the lawyer got in the buggy and drove with Kronmeyer until the note was signed by his sister almost in the presence of the lawyer. In that case the court properly held that if Kronmeyer was, in fact, innocent, and when confronted with a charge of embezzlement by a lawyer whom he had always regarded as a friend, executed the instruments in question to avoid prosecution for a crime he had not committed, then there was both fraud and duress and a total failure of consideration.

This case presents no such situation. Here Buediger admits the collection of the $2,600 for appellee and her husband and the failure on his part to pay it over to them. When they learned that he had collected the money, and when he asked for time, they became more insistent and told him if it was not paid they would take it to the State’s attorney. It was his own suggestion that he pay them part cash and the balance in a note signed by himself and Mrs. Rebhan, his mother-in-law.

Here the note was given, not as a reward for not prosecuting, but for a debt acknowledged to be due from Ruediger to Hertel.

In Farmers Nat. Bank of Princeton v. Rosenkrans, 240 Ill. App. 230, the court said: “The true rule seems to be that, notwithstanding the pendency of criminal proceedings against a wrongdoer* one whose money or property has been fraudulently obtained may contract for repayment of the money or satisfaction for the loss sustained and take security therefor, without invalidating the contract, unless there be included therein, as a part of the consideration therefor, some promise or agreement, express or implied,- that such prosecution shall be suppressed, stifled or stayed.”

We are of the opinion that the note was not executed under duress and that appellee was not g’uiltv of compounding a felony. There was no reversible error in refusing the offers of proof made by appellant at the time of trial.

The judgment, therefore, of the circuit court of St. Clair county will be affirmed.

Judgment affirmed.


text:
    Rose Silberman and Manuel Silberman, Appellants, v. Martha L. Connole et al., Appellees.
    Opinion filed February 1, 1932.
    James K. Moran, for appellants; Karch, Hendricks & Moran, of counsel.
    Philip G. Listeman, for appellees.
   Mr. Justice Fulton

delivered the opinion. of the court.

This is an appeal from an order entered by the circuit court of St. Clair county, denying appellants a temporary injunction and dismissing their bill for want of equity.

The bill of complaint alleged that Martha Connole, as administratrix of the estate of Samuel Krutansky, deceased, filed suit at law against appellants and others, upon three promissory notes which were executed by appellants and Ben Shatzman, Louis Kramer and the Shatzman and Silberman Grocery Company, as makers thereof; that note number one was for the sum of $2,000, note number two for the sum of $5,000 and note number three for the sum of $4,000; that the declaration contained three counts and the common counts and that the appellants had filed their plea of general issue and a special plea of payment to the declaration of appellee.

The bill further sets up that the appellants, together with the other parties above named, were joint makers upon the notes; that all of said notes were fully, paid and delivered up to the principal debtor, the said Shatzman and Silberman Grocery Company and remained in their hands until the 26th day of September, 1926, upon which date the said Samuel Krutansky died intestate.

The bill then alleges the appointment of Martha L. Connole as administratrix of the estate of Samuel Krutansky; that the assets of said estate were turned over to the said administratrix by Lena Krutansky, widow of Samuel Krutansky, and also an heir and beneficiary of his estate; that among the alleged assets of said estate, turned over to the administratrix by the widow, were the three notes in controversy; that the notes were not the lawful property of said estate but belonged to the Shatzman and Silberman Grocery Company and that said notes were wrongfully and fraudulently taken from the premises of the said grocery company and by some unknown person.

The bill further sets forth knowledge of these facts by Lena Krutansky and the institution of the suit by the administratrix. It alleges that Louis Kramer and Ben Shatzman, in addition to the complainants, are the only persons that know all the facts pertaining to the payment of said notes and they would be precluded from testifying in a suit at law, whereas it is alleged that they would be competent witnesses in behalf of the appellants in a court of equity.

The bill prays for a full, just and equitable inquiry into the account of the several parties to the suit and for a temporary injunction restraining the said administratrix from prosecuting the suit at law above described. The bill was presented to the court upon notice to appellees, whereupon the administratrix moved to dismiss the bill for want of equity. After a hearing, the court refused the temporary injunction prayed for by appellants and dismissed the bill for want of equity.

It is the contention of appellants that, with reference to the payment or the manner of the acquisition of the notes, any of the makers of said notes would be competent witnesses in a chancery suit. In support of this theory they cite, first, the case of Bradshaw v. Combs, 102 Ill. 428. In that case the court held that the principal on a promissory note, on a bill filed against an administrator or executor by the surety, was a competent witness, but the conclusion of the court is that a party, whose interest would be affected by the suit, is incompetent to testify, either in chancery or a suit at law. To the same effect is the case of Dodgson v. Henderson, 113 Ill. 360, and the other cases presented by appellants. In each of the cases cited, the suits were brought by the surety on the note to show his discharge from payment, because of some agreement between the principal on a promissory note and the payee for an extension of time for payment, without the consent of the surety. In those oases the principal on the note had no interest and therefore was a competent witness in an equitable proceeding.

In this case the two persons the appellants propose to use as witnesses are joint makers of the notes and ,their interests would be directly affected by the result of the suit. They are, therefore, incompetent to testify on their own behalf or on behalf of appellants, either in chancery or a suit at law. If parties were permitted to testify under such circumstances, the very purpose of the limitation contained in section 2 of the Evidence Act, Cahill’s St. ch. 51, if 2, would be defeated.

The contention of appellants that the suit involves an intricate accounting is without merit, because the liability, if any, of appellants is fixed by the terms of the notes to which their signatures are attached, and no set of facts is alleged in the bill which would warrant the interference of a court of equity on the ground of an accounting.

It is our judgment that the circuit court, in denying the temporary injunction and dismissing the bill for want of equity, committed no error and. its order should be affirined.

Affirmed.


author: Mr. Justice Eldredge

text:
    Mrs. Ernest Wever, Appellee, v. J. H. Staggs, Appellant.
    Gen. No. 8,529.

      Opinion filed February 1, 1932.
    Boyd, Ratcliff & Weber, for appellant.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellee.-
   Mr. Justice Eldredge

delivered the opinion of the court.

In an action on the case appellee recovered a judgment against appellant for the sum of $2,571 for personal injuries received by her resulting from an automobile accident.

Appellee, a woman 51 years of age at the time of the accident, resided at Calata, a small village in the State of Montana where her husband was the station agent for the Creat Northern R. R. Co. Before the accident she and her husband had driven in an automobile from their home in Montana to Mount Vernon, Illinois, to attend the wedding of their son at that place. On their way back to Montana they stopped to visit a relative by the name of Bowman living about four or five miles east of Lewistown, Fulton county, Illinois. On the morning of the accident they left Mr. Bowman’s place shortly after seven o’clock. Her husband was driving the automobile at a speed of about 20 miles per hour, according to the testimony of appellee, on the State highway No. 41, proceeding north and as they approached the Village of Avon, a car, driven by appellant, came out of a side road hidden by an embankment eight feet high and collided with the car in which appellee was riding whereby she received the injuries for which she is attempting to recover damages. The side road led to a cemetery on the top of a hill or bluff and ran through a cut to the State highway. The evidence shows that a person driving from the cemetery through this cut to the State highway could not see any car approaching the cemetery road until he had passed the embankment which was but a few feet from the main road. Cahill’s St. ch. 95a, If 34(3), provides that motor vehicles entering upon or crossing a highway designated by law as one of Routes 1 to 46 inclusive shall come to a full stop as near the right-of-way lines as possible before driving onto the paved portion and regardless of direction.

Appellant testified that in going down the bill he drove his car very slowly and not faster than a man could walk; that when he got down to the pavement he looked and saw the car in which appellee was riding coming about the time he drove onto the pavement and that it was then about 250 feet south of him and he should judge it was coming at a speed of at least 45 miles an hour; that he turned right around on the pavement as quick as he could and hadn’t hardly got around when the approaching car struck the front wheel and front fender of his car; that the other car ran up the side of the bank within four feet of the top and turned over; that just before coming out of the embankment he did not stop and he was right on the pavement when he looked up and saw the other automobile coming. It is clear from his own testimony that in coming out from behind the embankment appellant did not stop his car nor look to see if another car might be coming on the State highway in compliance with the command of the statute but drove onto the State highway without looking and without stopping in front of the automobile in which appellee was riding. If the car in which appellee was riding was in fact approaching the side road at a speed of 45 miles per hour, as he testified, all the more reason why he should not have taken the chance of driving out in front of it. The collision occurred almost instantly as he drove upon the pavement and it is very doubtful whether he had any opportunity to judge the speed of the approaching car. However, a speed of 45 miles an hour on a paved road under the circumstances shown was not unreasonable, even if the car in which appellee was riding was going at that speed. The liability of appellant is clear.

Where the liability of a. defendant is conclusively shown and the jury could not have found any other verdict under the evidence, the court will not reverse the judgment on technical errors but only when substantial and material errors have intervened by which his rights under the law have been jeopardized.

One of the errors assigned is that there was no evidence tending to show that appellee was in the exercise of due care for her own safety. She was riding in the automobile driven by her husband at a reasonable rate of speed along the paved highway where the car in which she was riding had the rig’ht of way over cars approaching the highway from side roads. The cemetery road was hidden from view and she had no knowledge thereof and could not see an automobile on that road. The law did not compel her to anticipate that there might be a side road hidden from view and that a car might be driven from said road onto the pavement in front of the car in which she was riding and under these circumstances no duty involved upon her to warn her husband that such might be the case. It was for the jury to determine from all the evidence in the case whether- she was exercising due care for her own safety.

The principal contention of counsel for appellant is that the court erred in giving certain instructions for appellee and in refusing to give certain instructions offered on behalf of appellant. Some of the instructions given on behalf of appellee quote different sections of the statute under the Motor Vehicle Act, Cahill’s St. ch. 95a, If 1 et seq., as abstract propositions of law without applying them to the facts in the case. While the rule is that such instructions are erroneous, yet it has also been held that the giving of them is not always reversible error. Under the facts in the present case there was no conflict in the evidence as to the liability of the defendant and he could not have been harmed by these instructions.

Instructions 13 and 14 given on behalf of appellee inform the jury that in estimating her damages they might take into consideration whether her injuries are permanent or temporary and it is contended that there is no evidence that her injuries were of a permanent character. No doctor testified in the case. Appellee testified that her left knee was cut open to the bone and that ligaments thereof were torn; that she was internally injured on the right side commencing with the breast bone and extending around to the rear; one wrist was dislocated; her right knee was dislocated and crushed and her left one was bruised but not broken; that after the accident she was taken to a doctor’s office in Avon who reduced the dislocations, sutured the left knee with eight stitches, bandaged it up and gave her medicine to take internally; that she was then taken to a hotel where she stayed until afternoon when she was taken to the railroad station to take the train for her home in Montana; that she had to change railroads at Galesburg and again at St. Paul; that they took her from one train to the other in a wheel chair; that on the different trains she stayed in the Pullman berths; the accident happened on Tuesday and she reached home on the following Friday; when she arrived in Galata, Montana, she was taken from the station to her home where she was put to bed and remained in bed three weeks during which time she had a neighbor lady take care of her and paid her $1 a day for her services; G-alata was a small'village having about 50 inhabitants and is 24 miles from the City of Selby, Montana; there was no resident doctor at Calata and the nearest doctor lived at Selby; she visited a doctor in Selby once to have the stitches taken out of her knee; this doctor gave her some medicine and rebandaged, her wrist; she wore this bandage about a month; after she was able to get out of bed she had to sit in a chair for about three or four weeks before she was able to walk on crutches because the pain in her chest kept her from using them and also her shoulder couldn’t stand the weight on the crutches; it was three or four weeks after she left her bed before she was able to use the crutches; she used crutches for three or four more weeks and after that occasionally when she had to go down town; from the time she received the injury she has suffered pain every day from the knee which pain keeps her from sleeping; she has difficulty with the knee in walking and if she gets a little overbalanced she falls down; she cannot bear the weight of her body on that limb without pain; that she cannot take a deep breath without pain; her arm 'is very weak and she cannot lift a pail of water; she can’t do any scrubbing or washing nor sew very long at a time; since the time of her accident she has been almost a nervous wreck; these conditions do not improve and her knee in particular seems to get worse instead of better; it has a dead, numb sort of feeling but if anything accidently touches it, it pains severely.

The accident occurred June 26, 1928. The trial took place in February, 1930. Nearly two years had elapsed between the time of the injury and the trial. The testimony of appellee which is entirely uncontradicted shows that she has during that time continually suffered pain and that the injury to her knee is getting worse instead of better. The evidence shows that appellee was in good health before the injury and had none of the impairments of her health that she has suffered since the accident. In the case of North Chicago Street R. Co. v. Shreve, 171 Ill. 438, the court held:

“It is not contended that this instruction fails to state the law correctly, but the objection is that there is no evidence of permanent injury upon which it can be based. It is true, no medical expert testified as to the injury being permanent, but the plaintiff testified on the trial of the case nearly three years after the injury was received and after the miscarriage occasioned by the injury as follows: ‘Before that time I was always very healthy, and since that time my health has been almost a total wreck. . . . It is a complete nervous shock. It has left me that I am very seldom or ever without a headache. It is always in the top of my head and right down the back of my neck at the base of the brain. Before this fall I never had a spell of sickness in my life. ... I have headaches also, and my strength isn’t what it used to be.’ This testimony was uncontradicted and at least tended to prove that the injury was permanent. . . . The language of the plaintiff that since the time of the accident ‘my health has been almost a total wreck, ’ conveys the idea that her health has been ruined or destroyed. These are the words of the plaintiff who received the injury — the only person who could describe her sufferings and injuries, and the effect the injuries had had upon her health so long a time after the accident. The jury saw the witness upon the stand and had an opportunity to form some estimate of her condition of health from her appearance in connection with her testimony as to its serious and permanent character. The physician who attended her after the accident and during the miscarriage testified that she suffered a great deal of pain. . . . This testimony, if true, when all considered, in our opinion was sufficient to justify the instruction. Moreover, under the instruction the question of permanent injury was to be taken into consideration in assessing plaintiff’s damages.”

Under the authority of the above case we are of the opinion that there was sufficient evidence on which to base these instructions insofar as they informed the jury that they might determine from the evidence whether the injuries were permanent or not which was all that the instruction assumed to do.

It is also urged that these instructions were erroneous because there was no allegation in the declaration that the injuries were permanent. It has frequently been held that a declaration need not describe the injury in all its seriousness but it is sufficient if the injury is merely described generally without pointing out its permanency. Springer v. Schultz, 205 Ill. 144; Chicago v. Sheehan, 113 Ill. 658; Chicago City Ry. Co. v. Hastings, 136 Ill. 251; North Chicago Street Ry. Co. v. Brown, 178 Ill. 187; Chicago & Alton R. Co. v. McDonnell, 194 Ill. 82; Little v. Peoria Ry. Co., 215 Ill. App. 385.

The thirteenth instruction, however, also informs the jury that they may take into consideration any loss of time, loss of wages or employment. In this respect this instruction was clearly erroneous as there was no evidence of loss of time, wages or employment. Appellee was not employed or receiving any wages at the time of the injury but was simply a housewife attending to her duties as such. However, analogous instructions have not always been held to cause reversible error. In the case of Little v. Peoria Ry. Co., supra, it was said: “The fifth and eleventh instructions, given for plaintiff, allow the damages to be fixed by the jury without any witness estimating the amount, but the jury were to act upon the proof in connection with their own observation and experience. It is argued that the amount expended by plaintiff for the services of her physician and her loss by reason of inability to attend to her business affairs were susceptible of direct proof, and that it was error to permit the jury to estimate those items of injury by their own observation and experience. We think these instructions in that respect were incorrect. Cases where such an instruction were given have been reversed on that account by the Supreme Court and by several of the Appellate Courts, including this court, but the modern tendency is to regard such an incorrect instruction as not necessarily reversible error.”

In the above case the cases of North Chicago Street R. Co. v. Fitzgibbons, 180 Ill. 466, Keokuk & Hamilton Bridge Co. v. Wetzel, 228 Ill. 253, and Thompson v. Northern Hotel Co., 256 Ill. 77, are cited in this connection. In the Fitsgibbons case an instruction was given that to enable the jury to estimate the amount of damages it is not necessary that any witness should have expressed an opinion as to the amount of such damages but the jury may themselves make such estimate from the facts and circumstances in proof and by considering them in connection with their knowledge, observation and experience in the business affairs of life. The objection to the instruction was that it authorized the jury to act upon facts not in evidence but within their knowledge. The court held in that case: “We do not think the jury would understand from the instruction that they might consider injuries outside of the evidence, which they might individually know of.”

In the Wetsel case, supra, a similar instruction was given and the objection urged to it was that certain damages were charged in the declaration, such as medical attendance, loss of time, etc., to which the rule announced in the instruction should be held to apply and it was held that the giving of it was not reversible error, because while the instruction given should have been limited so as to apply only to the physical injury which was sustained by the appellee, in view of the severe character of appellee’s injury and the amount of the verdict, the jury were not misled by the instruction.

In the Thompson case, supra, an instruction was given to the effect that if from the evidence the jury shall find the issues for the plaintiff and that the plaintiff has sustained damages as charged in the declaration, then, to enable the jury to estimate the amount of such damages it is not necessary that any witnesses should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof, relating to the subject of the extent of plaintiff’s damages. The court held: “The objection urged against this instruction is that it permits a recovery for an item of $500 claimed in the declaration to have been expended in endeavoring to cure the defendant in error of her injuries. In other words, it is contended that this instruction permitted the jury to go outside of the evidence and determine damages which were susceptible of exact determination from the evidence. If there was no evidence of expenditures by defendant in error in endeavoring to be healed of her injuries, then the jury could not find as to that item, from the evidence, that she had sustained damages as charged in the declaration, as the instruction requires, in its first sentence, shall be done before the jury would be warranted in awarding her any such damages. In other words, the instruction requires proof of the injury, as charged in the declaration, from the evidence, and the absence of any evidence as to the amount of her expenditures would indicate an abandonment by her of that item of damages. A similar instruction was criticised in North Chicago Street Railway Co. v. Fitzgibbons, 180 Ill. 466, and the instruction was sustained, and similar instructions have been approved often by this court. (Richardson v. Nelson, 221 Ill. 254; Keokuk Bridge Co. v. Wetzel, 228 id. 253.) We do not think that the instruction would be understood by the jury as authorizing- them to estimate and allow damages capable of pecuniary measurement without any evidence upon which to base such estimate. ’ ’

This thirteenth instruction in the case at bar, while it permits the jury to take into consideration loss of time, wages or employment, also limits their consideration to only such damages as were shown by the evidence. As there was no evidence of any damages from loss of time, wages or employment, in view of the amount of the verdict, it will not be presumed that the jury took into consideration any damages therefor as the verdict is not excessive for the injuries actually received. In view of the facts and circumstances shown by the evidence in this particular case, we are of the opinion the judgment should not be reversed for this error in the instruction.

It is also urged that the court erred in refusing to give the second and eighth refused instructions offered on behalf of appellant. The second refused instruction tells the jury that if they believe from the evidence that the defendant stopped his car near the right of way line of State highway No. 41 and that in driving his said car upon said highway he acted in a manner such as a reasonably prudent man would have acted under the same or similar circumstances then they should find the defendant not guilty. The eighth refused instruction told the jury that if they believed from the evidence that defendant stopped his car as near the right of way line of State highway No. 41 as possible then the jury should find him not guilty of having been negligent in failing to stop his car before entering upon the paved portion of the1 road even though they might believe the defendant failed to stop immediately before entering upon the concrete slab which constituted the paved portion of the highway. The evidence shows conclusively that appellant never stopped his car at any time or place after he started down the hill until he collided with the car in which appellee was riding on the State highway. There was no evidence on which to base these instructions and it was not error to refuse them..

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Grace Belle Black, Appellee, v. Cosmopolitan Life Insurance Company, Appellant.
    Gen. No. 8,533.

      Opinion filed February 1, 1932.
    Miles A. Tipsword, Eufus M. Potts and C. W. Armstrong, for appellant.
    A. 0. & Ben F. Anderson and Herbert S. Anderson, for appellee.
   Mr. Justice Eldredge

delivered the opinion .of the court.

Grace Belle Black, appellee, recovered a judgment against Cosmopolitan Life Insurance Co., appellant, on a policy of life insurance issued.to Vernon Asa Black, her husband, in his lifetime, as the beneficiary therein in the sum of $1,217.

On August 17, 1927, the assured made his application for insurance in the American Benefit Life Insurance Co. and paid his premiums to that company until July 1, 1929, when he received a policy from the Cosmopolitan Life Insurance Co., appellant. This latter policy contained the following provisions:

“This policy is issued and accepted in lieu of American Benefit Life Insurance Company policy No. 84601-H and the payment of the premiums as herein-before stated shall constitute substitution and acceptance by the insured of the policy as of July 1,1929, for the said American Benefit Life Insurance Company policy. ’ ’
“The Contract: This policy and the■ application, a copy of which is attached, constitute the entire contract between the parties.”

The assured accepted the new policy and continued to pay the premiums thereon until January 14, 1930, when he died of influenza and pneumonia.

But two pleas were filed to the declaration, one being the general issue and the other a special plea in which it is averred that the assured obtained defendant’s policy by fraud and circumvention in that he warranted in the application that he did not have or had not had or had never been treated for any liver disease; that he had in fact had a liver disease and had been treated for the same.

Defendant in the court below made a motion to quash the summons for an irregularity as to the date of service. The court overruled the motion and it is strenuously insisted that the court had no jurisdiction over the person of the defendant. Whatever merits there may be in this contention they cannot be availed of for the reason that defendant filed its pleas and submitted its person to the jurisdiction of the court.

The application for the original insurance in the American Benefit Life Insurance Co. was signed “Vernon Asa Black by- Grace Belle Black.” This was the only application made and was attached to and made a part of the policy issued by appellant. It is claimed that appellee cannot recover because no proof was made establishing her authority to sign the assured’s name to the application as his agent. There was no'plea denying the execution of the application. The only person who can question the authority of his agent is the principal. The agency was fully proved by the fact that the policy was issued on the application to the assured who received it and paid premiums thereon; also section 19 of “An Act to organize and regulate the business of life insurance,” Cahill’s St. ch. 73, H 342 (Smith-Hurd Stat. ch. 73, paragraph 231) provides: “It shall be lawful for any married woman, by herself and in her own name, or in the name of any third person, with his assent as her trustee, to cause to be insured for her sole use, the life of her husband, for any definite period or for the term of his natural life, etc.”

It is next urged that the assured made a false statement as to his having had, and being treated for, some disease of the liver. The basis for this contention is the death certificate issued by the doctor who attended him during his last illness. This death certificate is not abstracted but by going to the record (which we are not required to do) we find that the cause of death was certified as follows: “Influenza, gastro intestinal type. Pneumonia, last 3 days and Cardiac failure. (Duration) 28 ds. Contributory (Secondary) Cirrhosis of Liver. Estimated (Duration) 3 yrs.” There was no autopsy. The witness who executed this certificate, in answer to the question what did he base his estimate of three years on testified: “I estimated the three years because I don’t know by actual knowledge, because I didn’t examine him to tell by actual knowledge whether he had cirrhosis of the liver before or he didn’t. I couldn’t tell the difference, that is always— these cases develop in a short time and sometimes takes a long time. I couldn’t tell. I just merely put the estimate, that is all. The liver had become smaller, but he didn’t exhibit or show any of the usual symptoms exhibited in advanced cases of cirrhosis, and was no symptom evident at that time, even though during this last illness, I have no knowledge of the presence of cirrhosis before. It may have developed in a short time, or may have taken a long time, so that it hasn’t advanced far enough to be effective in his death, not causing his death. As to the fact the liver was smaller, being sufficient on which to diagnose the fact he had cirrhosis of the liver, at that time it may have been, some of those symptoms may have been due to it, or may not, I was not certain about it. ’ ’

■ Another physician who examined the assured in consultation stated he made a thorough examination of the patient and found no indication of cirrhosis of the liver. The evidence further showed that the duration of cirrhosis of the liver varied from several years to a few months and that the liver in a human body normally varies on an average of 40 to 50 ounces in the male adult and that in cirrhosis of the liver the size of the liver might become smaller or might become larger due to different causes. In fact the statement in the certificate of death in regard to the assured having cirrhosis of the liver seems to have been a voluntary statement unsubstantiated by any recognized symptom or proven fact.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.