author: Mr. Presiding Justice Jones

text:
    Gaitano Mugaviro, Administrator, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 7,592.
    1. Appeal and error — conclusiveness of findings as to< negligence and contributory negligence not manifestly against weight of evidence. The reviewing court will not disturb the findings of the jury-on the issues of negligence and contributory negligence, reached under proper instructions, unless manifestly contrary to the weight of the evidence.
    2. Railroads — sufficiency of evidence of negligence in operation of backing train at crossing. Where in an action for the death of an occupant of an automobile in a collision in the nighttime with a backing freight train at a street crossing the evidence was conflicting as to whether any warning signal was given of the train’s approach, it could not be said, on appeal from a judgment for plaintiff, that the jury was not warranted in finding that the defendant negligently operated its train.
    3. Railroads — sufficiency of evidence as to due care of decedent in action for death by collision at railroad crossing. Testimony in an action to recover damages for the death of an occupant of an automobile in collision in the nighttime with a backing freight train at a street crossing, that the automobile was stopped a short distance from the crossing, with testimony from which the jury could have found that the train gave no warning of its approach, held to sustain the finding of the jury that the decedent was in the exercise of due care for his own safety.
    4. Damages — sufficiency of evidence to support instruction as to measure of recovery by next of kin in action for wrongful death. Where there was proof, in an action for wrongful death, of actual contributions by the decedent to the support of his brothers and sisters, an instruction as to the measure of the damages recoverable which authorized consideration of his probable future contributions to his next of kin, was not erroneous, the right of such brothers and sisters not being limited to nominal damages.
    5. Damages — propriety of verdict for $8,500 for death of boy of nineteen. Where during the three years preceding his death at the age of 19 the plaintiff’s decedent had contributed $5,000 out of his earnings to his father, receiving from him his support and some spending money, the net contribution, totaling nearly half that sum, having been spent for the benefit of the father and .the decedent’s brothers and sisters, a verdict of $8,500 for his wrongful death cannot be said to be excessive.
    6. Death by wbowgfül act — form and distribution of recovery in action by administrator under- statute. An action by an administrator for the wrongful death of his decedent is, under the statute, for the benefit of the next of kin and the recovery must be in gross, the matter of distribution being one within the jurisdiction of the probate court.
    Appeal by defendant from the Circuit Court of Peoria County; the Hon. Chables V. Miles, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed March 3, 1926.
    J. A. Connell and Jack, Irwin & Jack, for appellant.
    McGrath, Stone & Daily, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is an appeal from a judgment for $8,500 and costs rendered against the Chicago, Burlington & Quincy Railroad Company and in favor of the appellee as administrator of the estate of Marion Mugaviro, deceased, on account of the death of said decedent.

Marion was 19 years of age at the time of the accident which resulted in his death. He was riding in a Ford coupé owned and driven "by another young man by the name of Granvel M. Elliot. The accident occurred about 7:15 p. m., December 16,1923, at an intersection of the company’s tracks with Fort street, in the City of Farmington, Illinois. Fort street runs east and west and crosses the railroad company’s tracks at a right angle. The said tracks run in a general north and south direction, but a short distance north of the intersection the tracks curve toward the west. The railroad station and a large building are located on the east side of the tracks at some distance north of the intersection and to some extent obstruct the view of those who come from the east along Fort street. A civil engineer, testifying on behalf of the defendant, made certain measurements and testified that at a distance 85 feet east of the center of the railroad crossing an unobstructed view could be had up the railroad track for 159 feet. At a distance of 57 feet from the center of the track an unobstructed view could be had for 195 feet; and at a distance of 44 feet from the center of the track an unobstructed' view could be had for 294 feet. The railroad tracks extending north from Fort street are laid in a cut which is estimated to be about 6 feet deep with the high bank on the west side of the tracks. On the night in question a train of twenty coal cars was being pushed south along the defendant company’s tracks to be transferred to the M. & St. L. R. R. Co. tracks. The movement necessitated crossing Fort street. The locomotive was attached to the north end of the string of cars and was headed south. The cars were each 40 feet or more in length, so that the total length of the train, including the engine, was between 800 and 850 feet. The headlight on the engine was burning, but because of the curve in the tracks it could not be seen at the crossing. The crossing was lighted by an electric light located 49 feet east of the center of the track and there was another light some distance west of the track. There was stationed at the south end of the farthest car from the engine, a brakeman, with a lantern. He testified that it was his duty to watch the crossing and to give necessary signals. According to his statement, he was standing on the inside of the car, but had one leg over the south end of it resting upon the brake platform. With one hand he held on to the brake wheel and with the other hand he held a lighted lantern. This lantern was the only light on the forward end of the train. He further testified that he first observed the approaching automobile when both the train and the automobile were about 80 feet distant from the crossing; that he was unable to see inside the automobile and determine how many people were in it; that it slowed down until it got within about 35 feet of the crossing, where it stopped for a moment; that he could then tell by the movement of the automobile that the driver let the brakes off; that as soon as he observed it, he held his lantern out over the car end and commenced “hollering” as loud as he could; that when he saw a collision was inevitable, he jumped back into the car and then over the side onto the ground, where he operated the angle cock, setting the air brakes on the train. By that time the train had struck the automobile arid was pushing it forward along the tracks. The train stopped a few feet after the application of the air brakes had been made. It is conceded by all parties that both the train and the automobile were running at a slow and about the same rate of speed. Both passengers of the automobile were killed.

The declaration, by appropriate counts, charges general negligence, the failure to give any warning at all of the approach of the train, the failure to give any sufficient warning of such approach; the failure to give the statutory warnings by ringing a bell and sounding a whistle; and the failure to comply with an ordinance requiring the constant ringing of the bell of the engine while the train is in motion. Proper averments as to due care are contained in the declaration.

Appellant urges that the judgment should be reversed : first, because the verdict was against the manifest weight of the evidence; second, because the court erred in giving instruction No. 14 in behalf of plaintiff ; and third, because the damages are excessive and indicate a manifest prejudice against the defendant.

The question of due care and contributory negligence upon the part of the plaintiff and the question of the defendant’s negligence are ordinarily questions of fact to be determined by the jury, and when they are once determined under proper instructions, courts will not disturb findings of the jury unless they are manifestly contrary to the weight of the evidence, (Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446; Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104.)

It is not disputed that the accident occurred after dark and at a time when it was the duty of the railroad company to give warning of an approaching train by having on it a light which is clearly visible. The company was operating rather a long cut of cars. Its engine was a considerable distance from the car farthest away from it. Because of the curve in the tracks the engineer could not see the crossing. Neither was the light from the headlight of the engine visible to those who were about to pass over the intersection. The engineer was not in a position where he could receive signals direct from the brakeman on the front of the train. Another brakeman was stationed about the center of the cut of cars in order to relay any signals he might receive from his fellow brakemen. The train approached the crossing from around the curve and through the cut at a slow rate of speed. There were several disinterested witnesses who testified that they did not see any light from the brakeman’s lantern until just before they heard the crash of the collision. They testified that they did not hear any bell or whistle. A witness by the name of Crane, who was walking along the street from the east toward the railroad crossing, testified that the train made so little noise as it came upon the crossing, and that it was so dark at the time, that he almost walked into the train before he observed it. His wife corroborated his testimony. Several of the train men, however, testified that an automatic bell was continuously rung and that the whistle was blown. ATI this presented a situation for the decision of the jury, and, under the authorities above cited, we feel that it would be against precedents for us to say that the jury was not warranted in finding that the defendant negligently operated its train.

The testimony of the brakeman, Martin, who was at •the end of the train, disclosed that the automobile slowed down and stopped a short distance from the intersection. We can conceive of no reason for stopping the car, except to permit those in it to attempt to ascertain if a train was approaching. This fact seems to us to indicate the exercise of due care and caution on the part of the plaintiff’s intestate, and so we conclude that the questions of due care and contributory negligence on the part of said intestate were correctly determined by the jury.

The second contention of appellant is that the court erred in giving plaintiff’s 14th instruction, which is as follows:

“The Court instructs the Jury that if you find for the Plaintiff, then it is your duty to find the amount of money, if any, he shall recover, based upon the pecuniary loss, if any, to the next of kin of Marion Mugaviro, deceased, and in arriving at such amount you have a right to take into consideration the relationship of the deceased to the parties for whose benefit this suit is brought, if the same is shown by the evidence, his physical and mental capacity, his age, earning capacity, if any, and habits of industry, if any, if the same are shown by the evidence, and what he likely and in all probability would have contributed to the support of his next of kin, if shown by the evidence, modified by the possibility of other contingencies, which might lessen or destroy the possibility of such benefit, and from all the facts and circumstances in evidence, determine as accurately as may be, the pecuniary loss, if any, sustained by his next of kin by reason of his death, ’ ’ etc.

It is admitted by counsel for appellant that this instruction, in the ordinary case, correctly expresses the law, but it is said that, as applied to the facts in this case, it gives to the jury an opportunity to speculate in regard to contributions which decedent might make to his brothers and sisters in the future, and that the jury must have indulged in such speculation, in order to assess the damages in so large an amount. The contention is based on the fact that the decedent was 19 years old and had been a coal miner for several years; that in the years 1920 and 1921, his employment was steady and he received, as wages, $1,997.76 and $1,526.-02, respectively; that in 1922 his employment as a miner was not steady on account of a strike and he went to Detroit where he procured work; that his wages as a miner during that year were $893.54 and he worked six weeks in Detroit sending home $25 or $30 every two weeks; that in 1923, down to the time of his death, he had earned $879.12; that all of decedent’s earnings were turned over to his father; that the father and two other sons were also employed as coal miners; that the earnings of those sons were turned over to the father; that the amount the father so received for himself and sons sometimes amounted to about $500 every two weeks; that the father paid for decedent’s clothing, boarded him and gave him spending money out of each pay, amounting to $5 to $10 at a time; that the evidence of all of these circumstances shows that decedent did not contribute to the support of any of his brothers and sisters, of whom there were seven; and that the turning over of decedent’s earnings to his father was not a voluntary contribution but a thing required of decedent, because he was an unemancipated minor.

The law will ordinarily presume that a parent has suffered substantial damages by reason of the death of a son 19 years of age, but, in the absence of proof to the contrary, there is no presumption that a brother or sister has suffered more than nominal damages. In Rost v. Noble & Co., 316 Ill. 357, the Supreme Court, in speaking of a surviving brother 14 years old, said: ‘ ‘ There was no evidence of the brother having received any assistance from the deceased or being dependent upon him. It was wholly conjectural whether he would ever receive any pecuniary aid from Ms brother, and under such circumstances it was held in Rhoads v. Chicago & A. R. Co., 227 Ill. 328, that only nominal damages could be recovered in an action by an administrator. The statute authorizes a recovery of such damages, as the jury shall deem fair and just compensation, with reference to the pecumary injury, resulting from the death * * *. The law presumes substantial injury to the parents, but the damages to collateral Mndred are only such actual damages as are proved. ’ ’

But, in the case at bar, there was proof that defendant’s brothers and sisters, nearly all of whom were younger than he, were to some extent dependent upon the earnings of the decedent for their support. The father testified that the money was used toward supporting the rest of the family. It is argued by counsel for appellant that the father’s income, derived from his own earnings and that of his sons, was so large that the earmngs of his deceased son were not needed in the support of the family. In cases of this Mnd no rule can be laid down concerning frugality and economy. If the fact be that the decedent’s brothers and sisters depended in whole or in part upon contributions from the earnings of their brother, .they were entitled to recover more than nominal damages and this is true without regard to the amount of the father’s income. The proof tending to show that they did receive the advantage of such contributions is not demed. Consequently, there is no basis for the contention that the brothers and sisters were entitled only to nominal damages and that the said instruction gave the jury an opportunity to speculate upon what the decedent might have, sometime in the future, contributed to them.

But, even if there had been no proof in the record of actual contributions to the support of the brothers and sisters, the instruction complained of would not have been erroneous. In that case, the trial court would undoubtedly have instructed the jury, under the authority of Rost v. Noble & Co., supra, that the collateral heirs could recover no more than nominal damages. But no such instructions were asked for by appellant, and, as we have observed above, no such instructions should have been given in this case, because there was proof to support the recovery of actual damages.

There is another reason why the said instruction should not be deemed erroneous: it is not within the province of the circuit court to apportion or distribute the damages among the next of kin. Under the statute, the suit is by an administrator for their benefit and the recovery must be in gross. The distribution of the amount recovered is within the jurisdiction of the probate court. (Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535.)

The third contention is that the damages allowed are excessive. The evidence shows that in less than three years’ time the decedent had contributed approximately $5,000 out of his earnings. To be sure there is to be deducted therefrom the cost of his board and clothing, and the amount he was given for spending money. According to the computation made by counsel for appellant, he was contributing at least $70 per month net, or $840 per year. In view of the fact that the evidence shows that the decedent, in his lifetime, was a healthy, industrious and sober young man, it cannot be seriously argued that the damages allowed are excessive. The jury were not confined, in assessing damages, to the value of the services of deceased until he would have arrived at majority, but might have considered the continuance of his life and the benefits to be derived therefrom afterward. (Lichtenstein v. Fish Furniture Co., 272 Ill. 191.)

We perceive no error in this case. Therefore the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    F. D. Pickrel, Appellee, v. Hannah J. Doubet et al., Appellants.
    Gen. No. 7,595.
    1. Vendor and purchaser — acceptance of note for unpaid balance as affecting vendor’s implied lien for purchase price. The implied lien of a vendor of realty for the unpaid balance of the purchase price is not affected by the fact that he accepted a note for the said balance on terms different from those stated in the original contract of sale.
    2. Vendor and purchaser — suit upon note for unpaid balance as affecting right of vendor to enforce implied lien for purchase money. The right of a vendor of realty to enforce his implied lien for the unpaid balance of the purchase money is not affected by the fact that he has theretofore brought suit against the vendee on a note for such balance, where the suit was dismissed following the death of the vendee.
    3. Vendor and purchaser — abortive arbitration agreement as affecting right of vendor to enforce implied lien for purchase money. The right of the vendor of realty to enforce his implied lien for the unpaid balance of the purchase money is not affected by the fact that he has theretofore entered into an arbitration agreement with the vendee as to that matter and others in controversy between them, where such agreement was entered into and revoked without anything having been done thereunder prior to the enactment of Cahill’s St. ch. 19, K 3, and hence was revocable at any time before award.
    4. Vendor and- purchaser — laches as bar to right of vendor to enforce implied lien for balance of purchase money against heirs of vendee. The right of a vendor of realty to> enforce his implied lien for the unpaid balance of the purchase price against the heirs at law of his vendee held not barred by laches.
    5. Vendor and purchaser — failure of vendor to present claim against estate of vendee for balance of purchase money as bar to enforcement of implied lien therefor against heirs. The fact that a vendor of realty did not file a claim against the estate of his vendee for the amount of the unpaid purchase "price or for the note of the vendee for such amount, does not affect his right to enforce such lien against the heirs at law of the vendee, notwithstanding the fact the land in question was inventoried as a part of the assets of the estate.

      6. Vendor and purchaser — assignability of vendor’s implied lien for purchase money. An implied vendor’s lien is in general nonassignable and good only between the parties to the conveyance and their privies in estate.
    7. Vendor and purchaser — rank in priority of vendor’s implied lien for balance of unpaid purchase price. An implied vendor’s lien is superior to the rights of all other persons except bona fide incumbrancers and purchasers without notice.
    8. Reference — sufficiency of affidavit in support of motion for re-reference on account of newly-diiscovered evidence. It was not error to deny leave to defendants in a suit to enforce a vendor’s lien against them as heirs at law of the vendee, to amend their answer and have the -cause re-referred to the master to take additional proofs where the affidavit of counsel seeking such leave, while alleging that the new testimony sought to be developed, did not come to their knowledge until after the hearing before the master, did not show that they were not in possession of such information at all times during the pendency of the suit.
    Appeal by defendants from the Circuit Court of Knox county; the Hon. George C. Hilltbr, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed March 3, 1926.
    Williams, Lawrence, Green & Gale and Riley E. Stevens, for appellants.
    Marsh, Rice & Thompson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is a proceeding to enforce a vendor’s lien by F. D. Pickrel, appellee, against the appellants, who are the heirs at law of Stephen J. Doubet, deceased. Pick-rel conveyed certain lands to Doubet in December, 1916, in consideration of the sum of $35,000. Doubet paid down $24,300 and gave his note to Pickrel for $10,700. This note was not executed and delivered until January 6, 1917. It was made payable March 1, 1917, with interest thereon at 6 per cent per annum after maturity. On March 3,1917, Doubet paid appellant $8,700, leaving a balance due on the note of $2,000.

Prior to the execution of the deed the parties had entered into a contract with respect to the sale of the land, Pickrel agreeing to convey it with a clear title in fee simple. When the deed was executed and delivered, it contained a provision making the conveyance subject to a roadway two rods wide. The deed was accepted by Doubet and placed on record by him. Sometime subsequent to the execution and delivery of the note, a controversy arose between the parties with reference to said provision in the deed and also with respect to other claims and disputes between them. An agreement to arbitrate these differences was entered into but was afterwards revoked and nothing was done thereunder. Appellee endeavored to collect the balance due on the note but Doubet refused to pay it and the note was placed in the hands of an attorney for collection, who brought suit on January 22, 1920. On February 3, 1920, Doubet died intestate, and the suit against him on the note was dismissed. His estate was administered on in the probate court of Knox county and final settlement made. Appellee did not file his note as a claim against said estate.

After the testimony had been concluded before the master in this case-, appellants asked for leave to amend their answer and to have the cause again referred to the master to take additional proofs. The motion for such leave was supported by affidavits to the effect that appellee had told John -H. Forquer and J. IT. Welsh that he had entered into an agreement in the spring of 1917 with Doubet to perfect the title to the said roadway and that Doubet was to keep back a part of the purchase price until a perfect title to the roadway was conveyed to him. A further affidavit was filed by appellants ’ attorneys in which they stated that they had no knowledge of the agreement set forth in the affidavits of Forquer and Welsh until after the taking of testimony before the master had been closed. The court overruled the motion of appellants and its action is assigned as error.

It is the claim, of appellants that appellee waived his lien for purchase money, if any existed, by his conduct in taking a note with terms different from those which were provided for in the original contract, by instituting a suit at law on the note, by entering into an arbitration agreement and by failing to enforce the lien within a reasonable time. The position of appellants is not well taken. It is true that the note for $10,700 contains different terms from those which were contemplated by the original contract but such fact does not affect the situation. The debt was for purchase money and it makes no difference that the instrument evidencing that debt was not executed at the time the deed was delivered, nor that its due date and the rate of interest varied somewhat from the requirements of the contract. By implication of law appellee had a vendor’s lien to secure it. The situation was not affected by the bringing of the suit at law on the note. Appellee had a right to pursue all the remedies he had, provided they were consistent and concurrent remedies. (Jackson v. Industrial Board, 280 Ill. 526; Bradner Smith & Co. v. Williams, 178 Ill. 420.) A creditor holding security may prosecute an action against the debtor and at the same time proceed to realize on the security, and is entitled to follow both remedies until the debt is finally satisfied. (Millhouse v. Krotz, 184 Ill. App. 507; Neff v. Alvin, 182 Ill. App. 41; Waschow v. Waschow, 155 Ill. App. 167.) Nor do we think that submission to arbitration constitutes a waiver, where the arbitration agreement is revoked and nothing done under it. (Paulsen v. Manske, 126 Ill. 72, 80.) The arbitration agreement was entered into prior to the enactment of section 3, ch. 10, Illinois Revised Statutes [Cahill’s St. ch. 10, ¶ 3] and could be revoked by either party at any time before an award was made. Under the circumstances of this case appellee was not guilty of laches in not enforcing his lien at an earlier date.

In Schultz v, O’Hearn, 319 Ill. 244, it is said: “The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense controlled by established considerations, and the lapse of time must be so great and the relations of the defendant to the rights such that it would be inequitable to permit the plaintiff to now assert them.” There is nothing in the record in this case which would justify the chancellor in concluding that it would be inequitable, because of the lapse of time, to permit appellee to assert his lien.

It is further contended by appellants that even if the lien was not waived it is barred because of the failure of appellee to file the note as a claim against the estate of Stephen J. Doubet within one year after letters of administration were issued. It is urged that a failure to file a claim against an estate within the statutory period bars the claim from participating in the inventoried assets of the estate; that the land in question was inventoried; that the lien existed only by reason of the debt and that so far as appellants’ land is concerned (it having been inventoried), the debt has become barred and therefore the lien is barred. The question now arises whether, in order to enforce the lien, it was necessary for appellee to have presented his claim in probate ? We think that such a course was unnecessary. By failing to file his claim in probate, he could not participate in a distribution of the general assets of the estate, but, if he chose to do it, he might look to the land for satisfaction of the debt. Suppose that during the year of administration he had filed this bill to enforce his lien and a hearing had been had within that time, could it be contended that his lien was barred because he had not filed a claim in probate? We surmise that no such contention would be made. Or, suppose he had filed this suit within the year and the hearing was not had until after the expiration of the year, would it be claimed that the lien was enforceable during the year but was barred immediately upon its. expiration? What difference can it make if the hearing be had subsequent to the close of the administration of the estate? We can see none.

A vendor who files and has allowed his claim for purchase money against the estate of the deceased purchaser does not lose his lien; and on the other hand the failure of the holder of a vendor’s lien upon land to present his claim- to the personal representative within the time prescribed by statute does not destroy the lien (39 Cyc. 1842).

We have been referred to the case of Linthicum v. Tapscott, 28 Ark. 267, which holds that a claim secured by a vendor’s equitable lien requires presentation to the personal representative. But it seems to us that the weight of authority is that the lien is not destroyed no matter whether it be a mere equitable lien or a lien expressly reserved in the deed. (Mahone v. Haddock, 44 Ala. 92; Boyd v. Jackson, 82 Ind. 525; Strain v. Walton, 11 Tex. Civ. App. 624.)

So far as this caséis concerned, we can see no reason to distinguish between an implied vendor’s lien and an express lien reserved in a deed. If rights of innocent third persons had intervened, a different situation would present itself. An implied lien is the creature of courts of equity (Boynton v. Champlin, 42 Ill. 57), and rests upon the principle of natural justice, that one who gets possession of the estate of another ought not, in conscience, be allowed to keep it without paying the consideration. (Koch v. Roth, 150 Ill. 212.) An implied vendor’s lien is generally nonassignable and is good only between the parties to the conveyance and their prives in estate. It has been held that if a person purchases land with knowledge of the fact that his vendor is still owing a portion of the purchase money thereof, the land will be subjected to the vendor’s lien in favor of the first vendor, in the hands of such purchaser with notice. (Harshbarger v. Foreman, 81 Ill. 364; Koch v. Roth, supra.)

An implied vendor’s lien is superior to the rights of all other persons except bona fide incumbrancers and purchasers without notice. In this case there is no one in the excepted class. This suit is against the heirs of the vendee. They succeeded to his rights and acquired no greater interest in the land than he had. His interest was subject to the implied lien of the vendor. His heirs acquired nothing more. (39 Cyc. 1815.)

It has been held that mortgages and deeds of trust can be enforced against the land without reference to the filing of a claim in probate against the estate of the deceased. (Kittredge v. Nicholes, 162 Ill. 410.) We are of the opinion that neither the debt nor the lien was barred by the failure to file a claim against Doubet’s estate.

We think the court did not commit any error in refusing to grant leave to appellants to amend their answer and to re-refer the cause to the master. It cannot be ascertained from anything contained in the affidavits of Forquer and Welsh that the alleged admissions of appellee did not pertain to the contract as contained in the so-called arbitration agreement. The said arbitration agreement bears no date, but it is conceded that it was executed and revoked prior to the amendment of section 3 of chapter 10 of Illinois Revised Statutes, which amendment became effective July 1,1919. The alleged admissions are said to have been made in the spring of 1917 and if it be contended that they were made prior to the execution of the arbitration agreement, the reply is, that if such is the case the agreement to which they referred became merged in the arbitration agreement, and was revoked prior to July 1, 1919. Moreover, the affidavit of counsel for appellants, which states that they were not aware of the alleged admissions until after the close of the testimony before the master, is insufficient because it furnishes no proof that the appellants were not in possession of such information at all times during the pend-ency of the suit. Whether or not an amendment to an answer should be allowed at the stage of the proceeding in which the amendment in this case was proposed is a matter within the discretion of the chancellor, and the situation here presented did not warrant the chancellor in allowing the amendment.

There is no substantial error in this case and the decree is affirmed.

Decree affirmed.


author: Mr. Justice Jett

text:
    Charles Doerr, by Charles Doerr, his next friend, Appellee, v. City of Freeport, Appellant.
    Gen. No. 7,501.
    1. Municipal Cobpobations — inapplicability of statute requiring notice before suit for personal injury where plaintiff a minor. A boy twelve years old, injured by reason of a defect in a city street, is not required either to allege or prove, as a prerequisite to a recovery of damages from the city, a compliance with Cahill’s St. ch. 70, 1[ 7, respecting filing notice of accident, his minority and incapacity rendering the statute inapplicable.
    2. Highways — notice to> city of defect in street as question for jury in action for personal injury. Evidence in an action against a city for injuries to a boy by an automobile caused to skid against him by running into a depression in the street held to make the question as to actual or constructive notice to the city of the defect one of fact for the jury.
    3. Highways — proximate cause of injury by automobile skidding after running into depression in street as question for jury. In an action against a city for injury to a boy by an automobile caused to skid against him by running into a depression in the street, the question whether the defect in the street was the proximate cause of the injury was one of fact for the jury.

      4. Highways — admissibility of evidence as to intoxication of driver in action against city for injury by automobile skidding after running into depression in street. In an action against a city for injury to a boy by an automobile caused to skid against him by running into a depression in the street, testimony tending to show that the driver of the car was intoxicated at the time of the accident was immaterial and properly excluded on objection.
    5. Highways — propriety of refusing instruction as to notice to city in action by minor for injury by defect in street. Cahill’s St. ch. 70, j[ 7, requiring the giving of notice to a city prior to bringing suit against it for personal injuries, being inapplicable where the injured person was a boy twelve years old, it was not error, in an action by such a plaintiff, to refuse to give an instruction in the language of the statute.
    6. Highways — propriety of refusing instruction as to effect of notice to police officer of defect in street, in action against city for injwry thereby. Where a city ordinance made it the duty of police officers to report to the mayor defects in the city streets, it was not error, in an action against the city for injuries due to such a defect to refuse to charge that notice to or knowledge of such defect by a police officer was not notice to the city.
    7. Highways — propriety of refusing instruction as to prima facie evidence of negligence of driver, in action against city for injury by defect in street. In an action for injury to a boy by an automobile caused to skid against him by running into a depression in the street, it was not error to. refuse a requested instruction in the language of Cahill’s St. ch. 95a, jj 23, touching the prima facie negligence of one driving at excessive speed, as such instruction would not have enlightened the jury on the issues involved.
    Appeal by defendant from the Circuit Court of Stephenson county; the Hoñ. William J. Emerson, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed March 3, 1926.
    Albert H. Manus and Robert B. Mitchell, for appellant.
    Harry B. North and Oscar R. Zipf, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

On April 9,1922, between five and six o ’clock in the afternoon, appellee, a boy twelve years of age, was seated on the west curb of South Oak avenue, a public street in the City of Freeport, lacing a football when the left rear wheel of an automobile going in a northerly direction struck a depression in the pavement near the center of the street not far from where he was sitting and as a result thereof the car skidded and his left leg was crushed between the automobile and the curb, necessitating its amputation a few inches below the knee. On December 13,1922, this action was begun by appellee against the Freeport Gras Company, the Freeport Water Company and the City of Freeport for the recovery of damages for the injuries he had sustained.

Plaintiff dismissed his suit as to the Freeport G-as Company and recovered a verdict for $11,000 against the two remaining defendants. This verdict was set aside and a new trial awarded. Thereafter the suit was dismissed as to the Freeport Water Company and upon a second trial appellee recovered a verdict for $8,000, and after motions for a new trial and in arrest of judgment had been overruled judgment was rendered upon the verdict and appellant brings the record here for review.

It is first contended by appellant that neither the original declaration, the amended declaration nor the additional counts stated a cause of action against it, inasmuch as it was not alleged that the statutory notice had been served upon the city prior to the institution of the suit. The statute requires any person who is about to bring a suit against a city for damages on account of any personal injury to file in the office of the city attorney and also in the office of the city clerk, within six months from the date of the injury, either by himself, agent or attorney, a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician, if any. Ca- hill’s Stat. 1921, ch. 70, ft 7. This statute was construed in Langguth v. Village of Glencoe, 253 Ill. 505, and it was there held that the filing of this notice was an essential element of the plaintiff’s cause of action which must be averred and proved before a recovery could be had, but in the case of McDonald v. City of Spring Valley, 285 Ill. 52, in holding that this statute did not apply to an infant seven years of age, the court said:

‘ ‘At common law an infant within seven years of age could not be convicted on a criminal charge, as he was conclusively presumed not to be capable of committing a crime, and between the ages of seven and fourteen he was still presumed to be incapable, but between those ages this presumption might be overcome by proof. These rules of law are based upon the well-known fact of the incapacity of children of tender years, and they are not held to the same accountability as are adults. The recognition, by the law, of the status of infants, and of their exemption up to a certain age from liability under the law, is so well known that it must be presumed that the legislature, in enacting such a statute as the one under consideration, did not intend by the general language used to include within its provisions a class of persons which the law has universally recognized to be utterly devoid of responsibility. * * * The act is meant to apply only to those who are mentally and physically capable of comprehending and complying with its terms. We are aware, as appellee has pointed out, that in a number of other jurisdictions a strict construction has been given to similar statutes, and that it has been held in those jurisdictions that it is a matter for the legislature to determine whether there should be any exceptions to such legislation; but in the State of New York, where there is a similar statute, The New York Court of Appeals held that where an infant five years of age was injured by the alleged negligence of a village, its right of action was not barred because it did not file the notice required within the time prescribed by the statute, under the rule that the law does not seek to compel one to do that which he cannot possibly perform, and that the failure of a father or mother to file the notice is not chargeable to the infant. (Murphy v. Village of Ft. Edward, 213 N. Y. 397.) In the State of Washington a similar statute has been construed not to include cases where the person injured was rendered physically and mentally incapable of complying with the statute in the time required, by reason of the extent of his injuries. (Born v. City of Spokane, 27 Wash. 719; Ehrhardt v. City of Seattle, 33 Wash. 664.) Common experience tells us that the cases in which the exception to this statute would be applied are very few, and that in a great majority of cases there is not such disability as would make compliance with the statute impossible. It would be unreasonable to so construe this statute as to make it appear that the legislature intended in these few cases to require that to be done which is utterly impossible of performance. It cannot be controverted that a minor is incapable of appointing an agent, or an attorney, and it cannot be successfully contended that the statute can be complied with by the filing of the required notice by the father, mother or some friend of the child as next friend. While the parent of a minor is its natural guardian he cannot be said to be the agent or attorney for the child. A child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self-constituted next friend to enforce its rights.”

The declaration in the instant case was filed on January 11, 1923, and it fully described plaintiffs injuries and alleged that he was a minor, twelve years of age. Under the reasoning of the McDonald case, supra, we are of the opinion that appellee was relieved from alleging in his declaration or proving upon the trial a compliance with the statutory provisions with reference to notice. Furthermore, in the amended declaration filed June 30, 1923, the minority and incapacity of the plaintiff were amplified and expanded, it being averred that by reason of his youth and inexperience and his physical and mental condition resulting from his injuries he was unable to comprehend his rights for a period of six months after his injury and therefore gave no notice to appellant.

It is next insisted that the evidence does not disclose that the city had either actual or constructive notice of the defect in its street and therefore no recovery can be had against it. Direct notice was proved by the witness Van G-order, a motorcycle officer, who observed the depression about eleven o’clock in the forenoon of the day of the accident and whose duty it was, under a city ordinance, to report it to the mayor of the city. Ten other witnesses testified that they had observed this depression for varying periods of time before the accident. One of these was a letter carrier who traversed the street every morning and every afternoon, another was a physician, two were truck drivers and all were familiar with the street having frequent occasion to travel it. Most of these witnesses testified that they had observed this depression a week or two- before the accident but one fixed the time when he had first observed it as at least four weeks prior to the day appellee was injured while the shortest time was fixed by one witness as the preceding Friday. It is true appellant produced other witnesses who testified that they had not observed this depression but this evidence was negative in character. "Whether the city had either actual or constructive notice of the defective condition of its street was a question of fact for the jury to determine.

It is next contended that the trial court erred in sustaining objections to the offer of appellant to prove that the driver of the car was intoxicated at the hospital a short time after the accident. The condition of the driver of the car at this time was immaterial and the court properly sustained the objection to this offered testimony. Appellant produced one of the occupants of the car as a witness but he was not interrogated along this line. In this connection it is also insisted that the negligence of the driver of the car and not the depression in the street was the proximate cause of the injury. This was a question of fact for the determination of the jury and by the tenth and fourteenth instructions given on behalf of appellant the jury were told that before the plaintiff could recover he must prove by the greater weight of the evidence that appellant was guilty of negligence as charged in the declaration and that its negligence was the cause of or contributed to the injury of appellee. Appellee’s sixth given instruction and appellant’s eighth given instruction defined proximate cause and told the jury that there could be no recovery by appellee unless it appeared from the evidence that the negligence of the city was the proximate cause of appellee’s injury.'

Thirty-three instructions were tendered by appellant and seventeen were given as requested. No criticism is made of any of the instructions given on behalf of appellee but it is insisted that the trial court erred in declining to give four of the sixteen refused instructions. All that was proper in the third refused instruction was covered by appellant’s fourteenth given instruction. The fourth, fifth and thirteenth refused instructions were all properly refused. The fourth was substantially in the language of paragraph 7 of chapter 70 of the Revised Statutes, requiring notice to be given to a city, and we have held this section was not applicable to this action. The fifth refused instruction undertook to tell the jury that notice to or knowledge of a police officer of a city of a defect in the streets is not sufficient to charge the city with notice of such defect. In view of the provisions of the ordinance making it the duty of such officer to report such defect to the mayor and taking into consideration the other evidence in this record, this instruction was properly refused. The thirteenth refused instruction told the jury in the language of the Motor Vehicle Act [Cahill’s St. ch. 95a, [[ 23] that driving a car through the residence portion of an incorporated city at a rate of speed exceeding fifteen miles per hour is prima facie evidence that such person is driving at a speed greater than is reasonable and that such person while so driving is not in the exercise of reasonable care for his own safety or for the safety of others. It was proper to show the rate of speed at which the car was being driven but this instruction would not have enlightened the jury in determining the issues here involved. "What appellee was required to prove, the degree or quantum of proof required, whether appellant was negligent and whether its negligence was the proximate cause of appellee’s injury, were all covered by the given instructions. A few instructions would have fully covered all the law applicable to the facts in this case and counsel should not have overburdened' the trial court by tendering such an unreasonable number of instructions as were offered. People v. Boston, 309 Ill. 77.

The questions of fact in this cause have been passed upon by two juries and both have found appellant guilty of the negligence charged against it.

We understand the rule to be that where two juries have found the issues the same way, on conflicting evidence, the trial or Appellate Court should be slow to set aside the verdict of the jury. Romano v. Rockford City Traction Co., 230 Ill. App. 402-411, 412; Meier v. Cleveland, C., C. & St. L. Ry. Co., 206 Ill. App. 286. Where the evidence is conflicting and two juries have found in favor of plaintiff’s contention, the verdict will not be disturbed on appeal on the ground that it is contrary to the manifest weight of the evidence. Merrill v. Merrill, 215 Ill. App. 602-604.

Where the evidence was conflicting and two juries have heard it and found the facts the same way, and there is evidence tending to sustain the findings, the judgment will not he reversed on the facts. Bates v. Danville St. Ry. & Light Co., 190 Ill. App. 486.

The jury and trial judge are in the best position to consider and pass upon the question of the credibility of the testimony, and the findings of the jury, approved by the trial judge, should not be disturbed on appeal unless they appear to be manifestly against the weight of the evidence. Freeman v. Chicago & J. Elec. Ry. Co., 208 Ill. App. 350.

Where questions of fact are passed upon by a jury, properly and fully instructed as to the law, and a motion for a new trial is considered and refused by the trial court, the verdict will not be disturbed as against the weight of the evidence on appeal, unless it is clearly so on some essential issue involved. Kumorowski v. Armour & Co., 198 Ill. App. 306-311.

Applying the rules as herein announced and as has been frequently held, we are not prepared to say that the verdict of the jury is manifestly against the weight of the testimony. When all -the facts and circumstances are considered, we are of the opinion the finding of the jury cannot be said to be against the manifest weight of tho evidence. On the contrary, taking the testimony as a whole, it sustains the findings. No prejudicial error appearing in this record, the judgment of the circuit court of Stephenson county will be affirmed.

Judgment affirmed.


text:
    Charles P. Taylor, Trustee, Appellee, v. Andrew T. Osman et al. Andrew A. Scowley, Appellant.
    Gen. No. 7,503.

      Mortgages — right of mortgagee to lien upon crops after severance from mortgaged premises. Where pending proceedings to foreclose a trust deed conveying to' the trustee as security “all rentals, rights, interests and appurtenances” appertaining to the premises, and “all right to retain possession of said premises after default or breach of any covenant,” the owner of the equity of redemption quitclaimed the same to defendant, at the same time assigning to him the lease under which a tenant held possession, and the trustee failed to secure the appointment of a receiver to take possession of the premises or of a corn crop then maturing thereon, but permitted defendant and the tenant to sever and divide such crop pursuant to the terms of the lease, such trustee was not entitled to a lien upon the rents and such corn crop.
    Appeal by defendant from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed March 3, 1926.
    R. A. Green and. C. S. Cullen, for appellant.
    McDougall & Chapman, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an appeal by Andrew A. Scowley, appellant, from an order entered by the circuit court of LaSalle county in which it was held that Charles P. .Taylor, trustee, appellee, had a lien upon the rents and the corn crop raised upon the premises covered by the trust deed which was then in process of foreclosure.

It appears that in February, 1920, S. B. Williams and James P. Gatlin were the owners of the lands and premises on which the corn was raised that is involved in this proceeding; that on March 1,1920, Williams and Gatlin executed a mortgage to Duncan McDougall to secure $45,000 and conveyed the said lands owned by them together with all rentals, rights, interests and appurtenances thereunto appertaining, waiving all right to retain possession of said premises by default in payment or breach of any covenant.

Said mortgage also provided that in the case of the filing of any bill to foreclose the court upon application may appoint any competent person receiver, with the usual powers, including the leasing and collecting of rents, issues and profits and the net rentals, until sale to be applied toward the payment of indebtedness secured thereby and after the sale the receiver shall continue to retain possession and collect the rents, issues and profits, which said mortgage was filed for record on March 6, 1920.

On March 1,1921, Williams and Gatlin conveyed the same real estate to Andrew T. Osman and on said date Osman executed a trust deed to Charles P. Taylor, trustee, to secure six notes aggregating $25,000, conveying the same premises together with all rentals, rights, interests and appurtenances thereunto appertaining and releasing and waiving all rights under and by virtue of the homestead exemption laws of the State of Illinois and all the right to retain possession of said premises after default in payment or breach of any covenant therein contained.

Said trust deed provided that in case of default in any covenant, agreement or obligation herein, and such default shall continue for 30 days, all of the indebtedness hereby secured shall, at the option of the trustee, or at the option of the legal holders of said notes, or any of them, become due and collectible at once, by foreclosure or otherwise, without notice, and it is hereby covenanted and agreed that this indenture, and the notes secured thereby, are executed under and are in all respects to be construed in accordance with the laws of the State of Illinois; and it was further provided that in case of the filing of any bill to foreclose the courts shall, upon application, appoint any competent person receiver with the usual powers including the leasing and collecting of rents, issues and profits, the net rentals until sale to be applied toward the payment of indebtedness secured thereby; and after the sale of the premises the receiver shall as a matter of right continue to retain possession thereof and collect the rents, issues and profits and pay the taxes and insurance premiums until the expiration of the period of redemption. Which said trust deed was entered of record in the recorder’s office of LaSalle county on the 5th day of March, 1921.

The record further discloses that the said Andrew T. Osman on June 7,1922, conveyed the said premises to Bichard Powers; that Powers conveyed the same premises to I. Ellis Grlaseman on November 29, 1922, subject to the first mortgage of $45,000, and also subject to the $25,000 mortgage.

It is further shown by the record that Osman, Powers and Grlaseman all failed to pay the interest and the taxes extended against the said lands and premises; that such default in the failure to pay the interest and taxes continued for more than 30 days and that the entire indebtedness for that reason became due and collectible at the option of the trustee and that the appellee was authorized under the terms of the trust deed to institute foreclosure proceedings.

On August 27,1924, Charles P. Taylor, trustee, filed a bill to foreclose the trust deed executed by Osman to him as trustee to secure the said sum of $25,000. While said foreclosure proceedings were pending, Grlaseman, on October 22,1924, conveyed the said lands to Andrew A. Scowley, appellant, by quitclaim deed. The premises were occupied by Elmer Huss, a tenant under a lease from Grlaseman, and his tenancy was from March 1,1924, to March 1,1925. At the time of the receiving of the quitclaim deed by Scowley, Grlaseman assigned him his lease on said premises.

The lease provided that the tenant, Hnss, should give one-half of the crop to the landlord for rent and should haul it to the elevator at Greenridge, Illinois. Huss raised a corn crop on the premises in 1924, and it is one-half of this crop that is involved in this suit, as appellant claims the landlord’s share by reason of his having received the quitclaim deed and lease from Glaseman. Huss began husking his crop about November 1, 1924, and by the 25th of the month he had one-half or more of it gathered and cribbed. Appellant testified that on November 25 he was on the farm and that he and the tenant divided the corn.

Charles P. Taylor, trustee, the complainant in the suit to foreclose the Osman mortgage, made a motion on December 1,1924, for the appointment of a receiver to rent the mortgaged premises and to collect the rents, and on said date an order was entered appointing Frank H. Hook. A bond was filed by the receiver on December 3, 1924. ' A few days after the receiver was appointed he went upon the premises but the record does not disclose that he made any effort to take possession of the land or corn.

Appellant filed a petition in said foreclosure proceedings asking the court to enter an order finding that the corn was his property, and that the receiver be enjoined from interfering in any manner with his removing the corn. A hearing was had on the petition and an order was entered finding that Taylor, trustee, had a lien on the crops grown on the mortgaged lands for the payment of the notes secured by the trust deed, the costs of suit and the taxes.

It is the contention of the appellant that as long as the mortgagor is allowed to remain in possession he is entitled to receive the rents and profits, and even if the rents and profits are pledged to secure the mortgage debt with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents until he takes actual possession or until possession is taken in his behalf by a receiver.

It is further the contention of appellant that the mortgage does not create a lien upon the rents and profits although they be expressly pledged to the same extent that it creates a lien upon the lands. If the mortgagee does not go into possession, as he has a right to do in this State, or take possession by a receiver, there is no method by which he may obtain the rents, as the holder of the equity of redemption is entitled to remain in possession until the master in chancery delivers his deed to the purchaser under the foreclosure sale.

It is the contention of appellee that as the mortgage or trust deed pledged for the purpose of securing the notes, the lands and premises together with all rentals, rights, interests and appurtenances he has a lien upon the crops in question.

It is conceded the Osman mortgage conveyed the described real estate, “together with all rentals, rights, interests and appurtenances thereunto appertaining,” and the mortgagor waived the right to retain possession after default in payment, and agreed that a receiver with usual powers should be appointed. If the mortgagee had caused a receiver to be appointed and such receiver had taken possession of the mortgaged premises before the crops were severed from the soil, appellant, as the owner of the equity of redemption, could not have complained. That was not done. The appellant was permitted to remain in possession by his tenant and to sever his crop of corn from the land, and the crop was divided between the landlord and the tenant, and the tenant thereafter had no interest in or title to the part so set off to appellant. It is not the rule, as we understand it, as is contended for by appellee, that a mortgagor can be called upon to account to the mortgagee for rents and profits of the mortgaged premises while the mortgagor remains in possession. Moore v. Titman, 44 Ill. 367; Mississippi Val. & W. Ry. Co. v. United States Exp. Co., 81 Ill. 534; Silverman v. Northwestern Life Ins. Co., 5 Ill. App. 124; Jones on Mortgages (5th Ed.), sec. 670.

As long as the mortgagor is allowed to remain in possession he is entitled to receive the rents and profits, and even if the rents and profits are pledged to secure the mortgage debt, with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents until he takes actual possession or until possession is taken in his behalf by a receiver. The mortgage does not create a lien upon rents and profits, although they be expressly pledged, to the same extent that it creates a lien upon the land. If the mortgagee does not go into possession, as he has a right to do in this State, or take possession by a receiver, there is no method by which he may obtain the rents, as the holder of the equity of redemption is entitled to remain in possession until the master in chancery delivers his deed to the purchaser under the foreclosure sale. The mortgage in such case merely gives the mortgagee a right to take such steps whereby he can obtain an equitable lien, as it is sometimes called, on the rents and profits; and until such steps are taken,. the mortgagor or the owner of the equity of redemption is entitled to the possession of the mortgaged premises, and to the rents and profits thereof.

In Jones on Mortgages (5th Ed.), sec. 670, it is said:

“So long as the mortgagor is allowed to remain in possession he is entitled to receive profits of the mortgaged estate. His contract is to pay interest, not rent. Although the mortgagee may have the right to take possession, upon a breach of the condition, if he does not exercise that right, he cannot claim the profits. Upon a bill in equity to obtain foreclosure and sale, he may in proper cases apply for the appointment of a receiver to take for his benefit the earnings of the property. He is then confined to the rents and profits accruing during the pendency of the suit. If he neglects to apply for a receiver, the final decree, if silent upon this subject, does not affect the mortgagor’s possession or rights to the earnings in the meantime. It is only after sale under the decree, except where statutes provide otherwise, that the mortgagor is wholly divested of title and consequently of right to possession. Unless restrained by the terms of the mortgage, the mortgagor in possession may work mines or quarries upon the mortgaged property, and whatever he severs from the realty becomes unencumbered personally, and his own property. Even if the rents and profits are expressly pledged for the security of the mortgaged debt, with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents and profits until he takes actual possession, or until possession is taken in his behalf by a receiver.”

In Cross v. Will County Nat. Bank, 177 Ill. 33, at page 38 it is said:

“The rule at common law, and laid down by this court, is that a mortgagor is not required to account to the mortgagee for rents and profits while he remains in possession. Moore v. Titman, supra; Mississippi Val. & W. Ry. Co. v. United States Exp. Co., supra. A mortgagee cannot interfere with the right of a mortgagor to collect the rents until he enters upon the property, or gives notice to tenants in possession thereof, or files a bill for the foreclosure of his mortgage and obtains, in aid of it, the appointment of a receiver.”

A provision in the real estate mortgage entitling the mortgagee to a receiver of rents and profits in an action to foreclose, and assigning them to the mortgagee as a further security in the event of default, does not charge the mortgagee with them from time of default, without some act on his part to secure possession of them. Sullivan v. Rosson [223 N. Y. 217], 4 A. L. R. 1400.

In a note to be found on page 1410, in Sullivan v. Rosson, supra, the following rule is announced:

“A provision giving the mortgagee a lien on such rents and profits, and authorizing the mortgagee to take possession in case of default, and collect and receive the rents and profits, does not vest such rents and profits in the mortgagee without action on his part.”

As sustaining the doctrine announced in the note many cases are cited, including Mississippi Val. & W. Ry. Co. v. United States Exp. Co., supra.

Also on page 1411, Sullivan v. Rosson, supra, in a note we find the following:

“The inclusion of the rents and profits with the appurtenances to the land described is. not enough to deprive the mortgagor of the right to receive the rent to his own use, where the mortgagee neither gets, attempts to get, nor demands possession, either before or after condition broken. Silverman v. Northwestern Mut. Life Ins. Co., 5 Ill. App. 124.”

The rule that a mortgagee has no specific lien upon rents and profits until he has taken possession, or has secured the appointment of a receiver in a suit to foreclose, is clearly set forth in Teal v. Walker, 111 U. S. 242, where at page 248 it is said:

“We believe that the rule is without exception that the mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession. * * * The American cases sustain the rule that so long as the mortgagor is allowed to remain in possession he is entitled to receive and apply to his own use the income and profits of the mortgaged estate; and, although the mortgagee may have the right to take possession upon condition broken, if he does not exercise this right he cannot claim the rents; if he wishes to receive the rents he must take means to obtain the possession. Wilder v. Houghton, 1 Pick. [Mass.] 87; Boston Bank v. Reed, 8 Pick. [Mass.] 459; Noyes v. Rich, 52 Me. 115.”

While there is some language used in the cases relied upon by appellee that would appear to support his contention, yet when the facts in each case are considered and understood it will be found that there is nothing in them in conflict with the conclusion herein reached. The great weight of authority is to the effect that the mortgagee cannot require a mortgagor to account for the rents and profits of the mortgaged premises while he is in possession. In the instant case, Glaseman and his grantee, Scowley, were in possession of the farm and raised the crop in dispute, and the entire corn crop was husked and cribbed before the receiver took any steps towards taking possession, even constructively; and the mortgagee has no right to take the corn raised and removed from the land before he obtained possession.

We are therefore of the opinion that the circuit court erred in entering its order finding that the respondent Taylor, trustee, had a lien upon the corn of appellant for the payment of the notes secured by the mortgage and that appellant was not entitled to the corn; and we are further of the opinion that the court erred in directing the receiver to sell said corn and hold the proceeds and to await the order of the court. The order of the circuit court is reversed and the cause remanded with directions to the court to enter an order finding that appellant, Andrew A. Scowley, is the owner of the corn in question and that he be permitted to remove the corn from the mortgaged premises, unless it has been sold; and in the event the corn has been sold then the court will enter an order directing the receiver to turn the proceeds over to appellant Scowley.

Order reversed and remcmded with directions.


author: Mr. Presiding Justice Matchett

text:
    J. Bannen Swope, Defendant in Error, v. D. T. McClure and W. E. Lenertz, trading as D. T. McClure & Company, Garnishees, Plaintiffs in Error.
    Gen. No. 30,286.
    1. Payment — giving of check as conditional payment. The giving of a check by a debtor to his creditor operates as a conditional payment of the debt, notwithstanding that the check itself does not effect an assignment of any part of the funds to the credit of the drawer with the bank.
    2. Garnishment — nature and limitations of liability of garnishee. The proceeding under the statute by a judgment creditor against a garnishee is one at law brought by the garnisher against the garnishee in the name of the judgment debtor, and ordinarily in such an action, so far as credits are concerned, he can recover only that which could be recovered in a suit in assumpsit or debt brought by the judgment debtor against the garnishee.
    8. Garnishment — return of check given in payment of alleged indebtedness to principal defendant as prerequisite to holding garnishee. Where, prior to the service of garnishment process upon the debtor of the judgment creditor, such debtor had given to the judgment debtor a check for the amount of the debt due to him, the judgment creditor could not recover against the garnishee without procuring a return of the check to the garnishee,• the latter having used due diligence to stop payment thereon upon being served with process.
    Error by defendants to the City Court of Chicago Heights; the Hon. Lee W. Gabbier, Judge, .presiding. Heard in the first division of this court for’ the first district at the October term, 1925.
    Reversed.
    Opinion filed March 2, 1926.
    Rehearing denied March 15, 1926.
    Robert A. Meier, Jr., for plaintiffs in error; Harry A. Goldsmith, of counsel.
    Charles F. McElroy, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The garnishees in the trial court have brought this writ of error to reverse a judgment entered in favor of defendant in error for $218.44.

The original suit was in attachment and was brought by the plaintiff, defendant in error, against Herman Lemke and Rigmor Lemke, residents of the State of Michigan.

The suit was: begun on September 17, 1921, and defendants, plaintiffs in error, were summoned as. garnishees on the same day. There was service by publication and judgment against the debtors, and the garnishees not having answered, a conditional judgment was entered against them on June 5, 1922, and a scire facies, thereupon issued.

The garnishees thereupon appeared and answered in response to the interrogatories theretofore filed that the garnishees were not indebted and had no property belonging to the debtors at the time, of the service of the writ.

August 11, 1923, the garnishees were discharged. A motion for a new trial was entered on September 8, 1923, thereafter and subsequently granted, and upon that trial a judgment against the garnishees was. entered.

The facts are practically undisputed. The plaintiffs in error, McClure and Lenertz, are a copartnership, doing business under the name of D. T. McClure & Company. On September 16, 1921, at 3:30 p. m., Mr. Lenertz delivered to, the defendant, Rigmor Lemke, a check for $221.44, which was, drawn on, the Commercial Bank of Chicago Heights, Illinois, and signed in the name of the copartnership by Mr. Lenertz. This check is in evidence, was made to the order of the defendant, Rigmor Lemke, and is indorsed by him, by one Cornelius DeKeyser, by the First State Bank of Holland, Michigan, to the order of the National City Bank of Chicago Heights and by that bank indorsed “Pay to ourselves, September 19, 1921.” This check was delivered to Rigmor Lemke in the presence of Herman Lemke.

Prior to the time that the check was delivered, Mr. Lenertz of the garnishees told the plaintiff that he would advise him at any time he might learn of Lemke’s leaving Chicago Heights, and immediately after the two. Lemkes left his office, Mr. Lenertz did communicate to the plaintiff that he had given Lemke this check and that the Lemkes had left for the C. & E. I. R. R. depot and that plaintiff could go to the depot and see them. This telephone message was, the result of plaintiff having previously told Mr. Lenertz of the indebtedness which he claimed against the Lemkes.

On September 17, 1921, about 9:30 a. m., a writ of attachment was served on the Commercial Bank of Chicago Heights, Illinois, summoning that bank as, garnishee. The writ was. afterwards withdrawn, and later on the same day was served on Mr. Lenertz, summoning the copartnership as garnishees.

Immediately Mr. Lenertz gave instructions to an employee of the bank in question to stop payment on the check delivered previously* to Rigmor Lemke. He also at that time telegraphed one of the three "banks at Holland, Michigan, notifying this bank that payment had been stopped on the check. He described the check in the telegram and requested this bank to advise the other banks in Holland, Michigan. On September 20, 1921, the check was presented to the Commercial Bank of Chicago Heights and cashed by it, notwithstanding the stop order previously given, and it is agreed that Mr. Lenertz never gave to the bank any further order to cash the check and did not learn that it had been cashed until about September 21,1921, when the plaintiff called and asked him if he had heard from the banks in Holland, Michigan. Mr. Lenertz examined the paid checks of McClure & Company, then in the bank’s possession, and found that the check had been cashed and learned from the cashier of the bank that the stop order had been overlooked.

It is elementary, we believe, that in a proceeding of this character, the action under the statute is one at law brought by the garnisher against the garnishee in the name of the judgment debtor, and that ordinarily in such action, the garnisher, in so far as credits are concerned, can recover only that which could be recovered in a suit in assumpsit or debt brought by the judgment debtor against the garnishees. Webster v. Steele, 75 Ill. 544; Samuel v. Agnew, 80 Ill. 555; Richardson v. Lester, 83 Ill. 55.

We are unable to understand upon what theory the judgment debtors here could have recovered against these garnishees in an action in assumpsit or debt after the delivery of the check. Certainly, they could not have done so without the return of the check to defendants. The delivery of the check to Herman Lemke by the garnishees was a conditional payment of the indebtedness (Heartt v. Rhodes, 66 Ill. 351; Bailey v. Pardridge, 134 Ill. 194; Hooker v. Burr, 137 Cal. 663), and this, we think, notwithstanding the fact that the check itself would not operate as an assignment of any part of the funds to the credit of the drawer with the bank. Cook v. Lewis, 172 Ill. App. 518; Ozburn v. Corn Exchange National Bank, 208 Ill. App. 155; Sar antopoulos v. Mid-City Trust & Savings Bank, 222 Ill. App. 24.

The garnisher cites and relies on Bank of Montreal v. Clark, 108 Ill. App. 163, but that case is, we think, clearly distinguishable. The court there held that the Chicago branch of the Bank of Montreal, which had been duly summoned as garnishee, was negligent in that, having knowledge, it failed to communicate to another branch bank of the Bank of Montreal in Toronto-, Canada, with which the debtor had an account, the fact of the garnishment. The garnishee there was negligent, as the court held. Here the garnishees, on the contrary, gave to- the bank in which the fund was deposited due and timely notice. The garnisher insists that the bank was simply the agent of the garnishees, and that the garnishees were therefore liable for the alleged negligence of the bank. Binkley v. Clay, 112 Ill. App. 336, is cited to this point, but is not applicable for the reason that in that case a draft, which had been drawn upon another bank, was in the possession of and control of the garnishee and undelivered at the time of the service of the writ. In this ca,se the check had been delivered before the garnishees were served.

The garnisher says, that a bank is the agent of its depositors, but does not cite cases so holding. This is not, we think, always true. The relationship generally between a bank and its depositors is that of debtor and creditor. If for some purposes, it may be considered the agent of the depositor, we would still hesitate to say that the depositor was liable for the negligence of the bank. We are not aware that the doctrine of respondeat superior has been carried thus far.

The garnisher was not entitled to recover and the judgment is reversed.

Reversed.

Johnston and McSurely, JJ., concur.


author: Mb. Presiding Justice Matchett

text:
    William Favaro, by Calagio Favaro, Appellee, v. Cherubino Jacobucci, Appellant.
    Gen. No. 30,416.
    1. Directing verdict — propriety of direction for defendant. A motion by defendant for a directed verdict should be denied if there is any evidence in the record on which the jury can reasonably return a verdict for plaintiff.
    2. Negligence — essentials of doctrine of attractive nuisance. The doctrine of an attractive nuisance is that it, must constitute such allurement to children of fender years as to amount to an implied invitation to them to come upon the premises.
    3. Negligence — meat-grinding machine hack of shop counter as attractive nuisance. A meat-grinding machine standing upon a block behind the counter of a shop, the space between the block and the counter being occupied by a meat barrel, cannot be deemed an attractive nuisance.
    4. Negligence — sufficiency of evidence to support judgment for damages for injury hy attractive nuisance. Liability under the attractive nuisance doctrine cannot be predicated upon an injury to a child invitee in a grocery and butcher shop resulting from putting its hands in the cogs and gears of such machine while it was in motion, where the machine stood on a block behind the Counter in such shop, and the space between the block and the counter was occupied by a meat barrel, the nature and location of the machine not amounting to implied invitation to the child to come behind the counter and play with it.
    5. Negligence — sufficiency of evidence to require direction of verdict for defendant in action based upon injury hy alleged attractive nuisance. Where in an action for damages for injury to a child resulting from its placing its fingers in the cogs and gears of a meat-grinding machine in defendant’s grocery and butcher shop, the undisputed evidence showed that the machine was located on a block behind the counter in the shop, with a meat barrel occupying the intervening space, and that the child did not come upon the premises by reason of the attraction of the machine, defendant’s motion for a directed verdict should have been granted.
    Appeal by defendant from the Superior Court of Cook County; the Hon. John J. Sullivan, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 2, 1926.

      Cairoli Gigliotti, for appellant.
    Laramie & Sherwin, for appellee.
   Mb. Presiding Justice Matchett

delivered the opinion of the court.

The plaintiff, a minor, sued defendant in an action upon the case, and upon trial by jury obtained a verdict with damages assessed at $2,000, upon which the court, overruling a motion of defendant for a new trial, entered judgment.

The case has been tried twice, and in the former trial also the jury returned a verdict for the plaintiff in the same amount. That verdict, however, was set aside by the court and a new trial granted.

The declaration alleges that on June 24, 1922, defendant maintained, owned and conducted a retail grocery store and butcher shop at 874 Blue Island avenue in the City of Chicago; that he had upon his premises a certain meat-cutting machine which was attractive to children of plaintiff’s, age while in operation, having what arei known as gears and cogs and being operated by electricity; that defendant negligently permitted said meat-cutting machine and the said cogs to be and remain open and unprotected and unguarded by an inclosure. of some character or in some other manner, although defendant well knew that plaintiff, who. was then and there below the age of discretion, was in the butcher shop with the permission of defendant and in close proximity to the machine; that the machine was of such a character that the operation thereof was liable to attract a child of plaintiff’s age, the cogs of said meat-cutting machine being left in an exposed condition, while in operation, where the movements thereof could be seen and heard; that the plaintiff was. likely to. receive some injury while said machine was being operated; that as the proximate result of said negligence of the defendant, the plaintiff, while on said premises, at or near said meat-cutting machine, was attracted by said meat-cutting machine and while standing near said meat-cutting machine, where the cogs thereof were unguarded and running, his hand was caught by the cogs and so- mangled, crushed and lacerated as to necessitate the amputation of his hand.

At the close of defendant’s evidence and again at the close of all the evidence., defendant made a motion for an instructed verdict in his favor, which was denied by the court, and the refusal to grant this motion is the principal error assigned and argued.

The rule which should be applied is well settled in this State. If there is any evidence in the record from which the jury can reasonably return a verdict for the plaintiff, the motion should be denied. If there is no such evidence, it should be granted. Libby, McNeill & Libby v. Cook, 222 Ill. 212; Devine v. Delano, 272 Ill. 179.

There is no material conflict in the evidence. The defendant on June 21,1922, owned and operated a meat market and grocery at the place alleged, and the plaintiff, who was bom on April 9,1917, lived with his family on the third floor of the building in which the business of the defendant was located. The plaintiff was not offered as a witness in his own behalf. Leo Favaro-, a brother of the plaintiff, twelve years of age at the time of the trial, testified that the accident occurred about twelve o’clock of the day in question; that the mother of the witness sent him to the butcher shop to get some meat; that he did not see his brother, the plaintiff, at the time in question, and discovered his presence in the butcher shop- only when he heard bis cries. The witness said that he asked the meat market clerk, whose name was Louis, to get twenty-five cents’ worth of ground meat; that, at the time, the clerk Was in the front part of the store and back of the counter; that the meat-grinding machine was at the left and on a meat block; that the meat block above which the meat-grinding machine was on was about three feet high; that the clerk, who- was back of the counter, cut off a piece of meat, took it and placed it in the machine ; that he started the machine; that Louis went to wrap the meat of another customer who was in the butcher shop; that when the. plaintiff cried out, he, the witness., turned around and saw him at the machine.

This is the substance of all the evidence offered in behalf of plaintiff as. to the actual occurrence; other members, of the family, the father and a brother, testified that the injured boy’s hand was in good condition prior to the accident, and a physician testified as to the medical treatment given to plaintiff after, but not before, the amputation of four1 of his fingers.

The testimony for the defendant tends to show that there were several persons in the store of defendant at the time of the accident; that the injured boy went into the store and asked for twenty-five cents’ worth of ground meat; that while Louis, the clerk, was. waiting on a lady customer, plaintiff approached the place where the meat-grinding machine was, whereupon the clerk took him by the arm and pulled him to one side of the store, telling him to get away from the machine because, he would get hurt; that the clerk then got the steak for the boy, put it in the grinding machine, and after grinding it went to wrap it up, when he heard the boy’s cries; that Louis, the clerk, had stopped the machine as soon as he finished grinding the meat and was wrapping the meat when he heard the cry and saw that the boy was near the. machine with his hand inside it. The lady customer, who was present at the time, states that she saw the boy near the machine and that the workingman chased him away; that plaintiff went about ten or eleven feet in the center of the store; that the butcher had stopped the machine and was taking a piece, of paper to wrap the meat. She also testified that the button to stop- the machine was beneath or under it.

Photographs in evidence show that the grinding machine was placed upon a table about three feet high to the left of and behind the left end of the counter. There was a space between the counter and the block upon which the machine stood, which was occupied by a meat barrel.

The only conflict in the evidence is with reference to whether the plaintiff’s brother or plaintiff made the purchase of the meat, and this we do not regard as material. We assume that the plaintiff was not a trespasser by reason of entering the store', regardless of whether he went into the store to actually purchase the meat or to accompany his brother while the purchase was being made. There is no evidence from which it can be inferred that, he entered the store on account of the attraction of the machine.

Assuming the evidence of the older brother to be true, there is; nothing from which a jury could infer that the plaintiff was attracted from the street into the building by the meat grinder. The theory of the plaintiff is that this meat grinder was an attractive nuisance, but there is no evidence to indicate that it was other than the fact that this particular child was tempted to operate it and was hurt while doing so. The evidence does not show that the meat grinder was near a public street or that there was anything about it so unusual as to attract children generally. The doctrine of an attractive nuisance is that it must constitute such allurement to children of tender years as to amount to an implied invitation to them to come upon the premises. This machine would not ordinarily attract children, and there is uncontradicted evidence that plaintiff was in fact taken away from it. The attractive nuisance doctrine has been extended very far, but we think it has never yet been held that a meat-grinding machine placed' behind the counter and behind a barrel in a butcher shop amounts to an invitation to children to come behind the counter and the barrel and play with the machine.

Under the doctrine announced in McDermott v. Burke, 256 Ill. 401, we think it clear that the defendant could not be held hable on the attractive nuisance theory.

Holbrook v. Aldrich, 168 Mass. 15, seems to be a case directly in point. There the plaintiff, who was a minor less than seven years old, entered into a shop with her father who was about to make a purchase. She intended to buy some candy,- but in the first place accompanied her father to a part of the shop, at some distance from the candy counter and near to the coffee grinder. He let go her hand to- get his money, and she went over to the coffee grinder, put her hand up to the spout out of which the ground coffee came, and lost her fingers.

In that case, the court directed a verdict for the defendant, and the Supreme Court of Massachusetts held that the direction was proper. It said, if the decision were to be put on the narrowest possible ground, the plaintiff was not within the scope of the defendant’s implied invitation, and therefore was entitled to no protection against such possibilities of harm to herself, but even if she had been buying coffee, the rule would be the same. In such case, the defendant would have been bound to' use due care, but would not have been bound to look out for or to. prevent wrongful acts on the ground that if such act was done, it might hurt the actor. The court said, “Temptation is not always invitation.”

We think that ease cannot be distinguished from this one. There was no. evidence, in our opinion, from which the jury could reasonably find that defendant was guilty of any negligence directly contributing to the injury which the plaintiff received, and the instruction to find for the defendant should have been given.

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

Reversed and remanded.

Johhstoh and McS-urely, JJ., concur.