author: Mr. Presiding Justice Jett

text:
    Eugene Bolle, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 7,375.
    1. Master and servant — necessity that employee under Federal Employers’ Liability Act be engaged in interstate commerce. In order for an injured employee to recover again'st a railroad company under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq.. it is essential for him to show that he was employed by the company in interstate commerce at the time of the injury.
    2. Master and servant — test whether employee engaged in interstate commerce under Federal Employers’ Liability Act. The true test of whether a railroad employee was engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., is, was he at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?
    3. Master and servant — employee heating station buildings from locomotive engine as engaged in interstate commerce under Federal Employers’ Liability Act. The fact that a railroad employee, who was hired to fire a locomotive engine to generate heat for station buildings, was putting coal into the tender at the time of injury and that the boiler generated steam for the station buildings does not show that he was actually engaged in work so closely related to interstate commerce as to be practically a part of it under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq.

    4. Master and servant — employee working on engine coupled with interstate engine as being engaged in interstate commerce under Federal Employers’ Liability Act. The fact that the locomotive engine used to generate heat for station buildings, which engine was being fired by an employee who was putting coal into the tender at the time of his injury, was coupled with other engines being prepared for interstate transportation and that he was directed to accompany his engine to another point for coal and water, does not show that he was acting in furtherance of interstate commerce under the Federal Employers’ Liability Act, ch. 114, ¶ 321 et seq.

    Appeal by defendant from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.
    Heard in this court at the April term, 1924.
    Reversed and remanded.
    Modified opinion filed June 27, 1927.
    Rehearing denied October 19, 1927.
    (Original opinion see 235 Ill. App. 380, reversed and remanded with directions by the Supreme Court in 324 Ill. 479.)
    Nelson J. Wilcox, Nye F. Morehouse and I. C. Belden, for appellant.
    Ryan & Rosenthal and Paul MacGuffin, for appellee; Joseph D. Ryan, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

On November 15, 1922, appellee entered the employment of appellant, his duties being to watch engines, sand them, operate turntables and perform other like services in the roundhouse of appellant near Waukegan, Illinois. He was also engaged to fire either the stationary boiler or a locomotive engine which supplied heat for appellant’s passenger depot, the baggage room in the depot, the roundhouse, the foreman’s office, the engineer and fireman’s register and lock room, the bunk house, and other like buildings and offices of appellant. On December 4, 1922, the stationary boiler was temporarily out of repair and appellee was firing the locomotive engine which supplied heat to these various buildings. On this particular day appellee went to work about four o’clock in the afternoon and about nine o’clock of the same evening he was directed to accompany his engine to Beach for coal and water. Beach was in the yards of appellant four miles north of appellant’s Waukegan station. The engine and tender of appellee were thereupon attached to three other engines and the four engines being so coupled together were propelled northward by the most northerly engine, which engine was immediately north of the engine upon which appellee was riding. These four engines so coupled together arrived at Beach and the engine of appellee took water, but before the tank was completely filled the engines were moved north to a side track in order to permit a through train to pass. The engines remained on the side track only a few minutes and then started back to the water tank and coal chutes, the motive power at that time being furnished by the most southerly engine. The engines stopped and the engine farthest south was filled with coal. Again the four engines moved southward, the most southerly engine furnishing the power and the second engine toward the south and also the third one (upon which was appellee) were both placed opposite coal chutes. Appellee saw the man on the engine immediately south of him jerk the chain and start taking coal on his engine and appellee followed his example and did likewise. Appellee had no duties to perform with reference to the operation of any of the engines, not even his own, nor was it his duty to coal his engine although he mistakenly thought it was and while so engaged in taking coal the engine immediately north of him, without notice or warning, moved northward suddenly and appellee’s leg was crushed between the cab of his engine and the coal chute and he received injuries as a result of which it became necessary to amputate his right leg above the knee. Upon the trial a jury returned a verdict awarding the plaintiff damages in the sum of $20,000.00 and from the judgment rendered upon that verdict appellant has perfected this appeal.

Appellee brought this suit basing his right to recover upon the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., and the controlling question for decision in this case is, was appellee at the time of the injury employed in interstate' commerce within the meaning of the Federal Act?. The Federal Act declares: " Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,” and in order to recover it was essential for appellee to show not only that appellant was engaged in interstate commerce at the time of the injury but also that he was then employed by appellant in such commerce, and the true test of employment in such commerce in the sense intended is, was appellee at the time of the injury engaged in interstate transportation or in work so closely related to it-as to be practically a part of it? Shanks v. Delaware L. & W. R. Co., 239 U. S. 556.

It is apparent that appellee was not at the time he was injured engaged in interstate transportation but was his work so closely related to it as to be practically a part of it? His general employment was to fire the locomotive which was then being used as a substitute for a stationary boiler and which furnished heat for appellant’s station and other buildings, and it is insisted that this depot and other buildings were instrumentalities of interstate commerce and his work was so closely related to the work of interstate commerce as to be practically a part of it. Appellee concedes that the character of his general employment is not controlling but that the service that was being rendered at the time the injury was suffered must determine whether or not appellee was under the provisions of the act. Shanks v. Delaware L. & W. R. Co., supra.

We regard the decision of the United States Supreme Court in reversing the judgment of the Supreme Court of Minnesota in the case of Illinois Cent. R. Co. v. Cousins, 241 U. S. 641, as controlling authority in this case. In the Cousins case it appeared that the plaintiff was a laborer employed by the railroad company in its yards and shops and was injured while wheeling a barrow full of coal intended to be used in heating stoves in a shop where other employees of defendant were engaged in repairing cars, many, if not all, being cars that moved only in interstate commerce. The Minnesota Supreme Court upon the authority of Pedersen v. Delaware L. & W. R. Co., 229 U. S. 146, held the plaintiff was engaged in interstate commerce but this judgment was reversed by the Supreme Court of the United States upon the authority of Delaware L. & W. R. Co. v. Yurkonis, 238 U. S. 439, and Shanks v. Delaware L. & W. R. Co., supra. In the Yurkonis case, supra, it was held that an employee of a railway company who received injuries while mining coal in a colliery owned and operated by the railway company such coal being intended to be used by the company in its conduct of interstate commerce could not invoke the provisions of the Federal Act, and an action based upon such allegations was not within the terms of such act. In the Shanks case, supra, it was held that an employee in a machine shop, operated by a railway company, in which parts of locomotives used in interstate and intrastate transportation were repaired, was not employed in interstate commerce within the meaning of the Employers ’ Liability Act, it appearing that he was injured while engaged in taking down and putting into a new location an overhead countershaft through which power was communicated to some of the machinery used in the repair work.

We are unable to distinguish the facts in the instant case from the facts in these cases. Appellee was hired to perform the duties of fireman of a stationary boiler and of a locomotive which was being used as a substitute therefor. At the time he was injured he was putting coal into the tender from which he would later shovel it into the firebox. We do not think that the fact that this boiler generated steam which heated the passenger station and other buildings of appellant shows that he was actually engaged in work so closely related to interstate commerce as to be practically a part of it. This work was too remote from interstate transportation to be practically a part of it and therefore appellee is not in a position to invoke the benefits of the Federal Act but must look for redress to the laws of this State wherein the accident occurred.

It is conceded by appellant that the three engines coupled to the engine upon which appellee was at the time of the injury were being prepared for interstate transportation, and it is insisted by appellee that when his engine was coupled with the three engines and he was directed to accompany his engine to Beach for coal and water, he became a necessary and essential part of that movement; that he was actually assisting and co-operating with the other servants of appellant and that this movement was a necessary preparatory movement in aid of interstate transportation. In support of this contention appellee cites the case of New York Cent. & H. River R. Co. v. Carr, 238 U. S. 260, where it was held that a brakeman on a freight train running between points in the same State, the freight train containing some cars loaded with interstate freight, was injured while attempting, in the course of his employment, to set the brake on an intrastate car which had been cut out of the train and backed into a siding, was employed in interstate commerce where the setting of such brake was necessary in order that the engine to which the car was attached might, when uncoupled, return to the train and proceed on its journey. Appellee also relies upon the case of Louisville & N. R. Co. v. Parker, 242 U. S. 13, where it appeared that a railway fireman of a switching-engine was killed when his engine struck a caboose while transferring an empty car from one switch to another, such movement being simply for the purpose of reaching and moving an interstate car, and the court held that the purpose would control and the business would be interstate.

Appellee also cites Pedersen v. Delaware L. & W. R. Co., 229 U. S. 146; North Carolina R. Co. v. Zachary, 232 U. S. 248; New York Cent. & H. River R. Co. v. Carr, supra, which hold that where one is injured while preparing an engine for an interstate trip he is entitled to the benefits of the Federal Act, although the accident occurred prior to the actual coupling of the engine to the interstate cars.

Appellee also relies upon the case of Erie R. Co. v. Collins, 253 U. S. 77, where it is held that a railroad employee operating a pumping station which consisted of a water tank and an engine for pumping purposes, through which instrumentalities water was supplied to engines engaged in interstate and intrastate traffic, was engaged in interstate commerce while in attendance at the pumping station.

All of these cases, in our opinion, are clearly distinguishable from the case under consideration. At no time was appellee engaged in interstate work, while in the cases cited and relied upon by appellee the parties at the time of their respective injuries were doing work incidental to their interstate employment. Under the authority of the cases heretofore cited appellee cannot be said to have been engaged in interstate commerce by virtue of his general employment in heating the depot and other buildings of appellant. The fact that his engine had a physical connection at the time of his injury with three other engines which were being prepared for interstate transportation cannot be said to have been in furtherance of interstate transportation. Appellee was not preparing his engine for interstate transportation nor was he doing anything in any way related to interstate transportation. His engine was being provided with fuel not for motive power but simply to generate heat to warm appellant’s depot and other buildings.

Our Supreme Court in Heed v. Industrial Commission, 287 Ill. 505, held that a janitor who was injured while splitting kindling wood for the purpose of building fires in the stoves which warmed the shops and roundhouse in which machinery and engines were housed and repairs there made on interstate engines, was not engaged in interstate commerce within the meaning of the Federal Act.

Being of the opinion that appellee, from the facts disclosed in this record, was not engaged in interstate commerce "within the meaning of the Federal Act at the time he was injured, it is not necessary for us to prolong this opinion or discuss the other errors assigned. The judgment of the court below is reversed, and the cause remanded to the circuit court of Lake county for a new trial.

Reversed and remanded.

Addenda. This opinion as modified in compliance with the mandate of the Supreme Court is ordered to be refiled.


source: Caselaw Access Project

license: Public Domain

text:
    Peoria Life Insurance Company, Appellee, v. International Life and Annuity Company, formerly International Life and Trust Company, Appellant.
    Gen. No. 7,739.
    1. Corporations — what acts ultra vires. Acts ultra vires are those not within the powers conferred upon the corporation "by the act of its creation, and even though not unlawful or beyond a corporation’s powers violate the trust reposed in the managing board by the shareholders to manage affairs and funds for the object for which the corporation was created.
    2. Corporations — when ultra vires not defense. The defense of ultra vires will not avail a corporation against enforcement of a contract of which it has had the benefit of good faith performance by the other party.

      3. Corporations — when bound by irregular contract. A corporation is bound by a contract, even though made in an irregular way by those acting for the corporation, if it is within the corporate powers and the other party has no reason to suspect the irregularity.
    4. Corporations — validity of irregular acts. Providing an act is not ultra vires for want of power in the corporation, it may be valid as to third persons although ultra vires for want of power in the corporate agent or officer, or from disregard of legal formalities, or from improper use of enumerated powers.
    5. Corporations — estoppel, to deny irregular acts. A corporation acting within its general powers and those contracting with it may be estopped to deny compliance with legal prerequisites to its existence or its action.
    6. Corporations — misapplication of proceeds as defense to good faith loan. That a corporation uses a loan in a way not authorized by its directors, though not illegally or immorally, is no defense to a suit by the lender who knew of the unauthorized use but did not participate therein.
    7. Corporations — presumption of authority for president’s act. A president’s act as business head of a corporation within the scope of his powers as such and for its benefit will be presumed, without contrary proof, to have been done by its authority.
    8. Corporations — note repurchase agreement as binding. A corporation cannot question an agreement made by its president to repurchase notes sold by him and for which it received the money if the transaction appears to have been in the corporate interest.
    9. Corporations — implied power to make note repurchase agreement. A corporation in making a sale of notes to obtain money for corporate purposes has an implied and incidental power to make the sale conditional upon an agreement for repurchasing the notes.
    10. Corporations — conversion of proceeds of loan as affecting corporate liability. A check by way of a loan, made payable to a corporation and indorsed by it and its officer, is received by the corporation even though the officer converts the proceeds to his own use.
    11. Corporations — estoppel by course of conduct to dewy president’s authority. A corporation is estopped to deny its president’s authority to borrow by note assignments, after recognizing similar transactions and repaying the loans.
    12. Corporations — when inquiry as to president’s authority unnecessary. A corporation’s holding out its president as authorized to borrow for it, on former occasions, makes further inquiry as to his authority unnecessary by the lender in making another good faith loan.
    13. Corporations — when loan agreement not ambiguous. No ambiguity exists in a contract made up of a clear and definite offer by letter of a corporation president to repurchase notes if another would buy and the latter’s clear acceptance by letter of the proposition to make the loan,

      Appeal by defendant from the Circuit Court of Rock Island county; the Hon. C. J. Searle, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 24, 1927.
    Rehearing denied November 8, 1927.
    Stebbins, Garey, L'Amoreaux & Hurtubise, for appellant.
    Connelly, Weld, Walker, Searle & Crampton and J. B. Wolfenbarger, for appellee; H. A. Weld, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

Peoria Life Insurance Company, appellee, instituted this suit against International Life and Annuity Company, formerly International Life and Trust Company, a corporation, appellant, to recover the sum of $10,000 and interest thereon, for money advanced and which appellant promised to repay.

A trial was had without the intervention of a jury and a finding in favor of appellee and against the appellant for $11,175 and costs of suit and this appeal followed.

For the purposes of this opinion appellee will be called “plaintiff” and appellant, “defendant.”

The declaration consists of three counts together with an affidavit of claim. The first count alleges in substance that the defendant requested plaintiff to furnish it $10,000 to enable it to buy a certain promissory note and mortgage secured by real estate in Shedburne County, Minnesota, and agreed with the plaintiff that if plaintiff would furnish said funds, it, the defendant, would assign the note and mortgage and repay the plaintiff the sum so advanced on March 1, 1925; that the plaintiff, relying upon the promise, loaned said money and the defendant did deliver the note and mortgage as security for said loan and that defendant did not repay said money. The second count charges that the defendant made a certain contract with the plaintiff whereby it agreed that if plaintiff would buy until March 1, 1925, a promissory note in the sum of $10,000 and the mortgage securing the same, the defendant would repurchase said promissory note and interest on it March 1, 1925; that plaintiff, relying upon this promise, did buy from and carry for the defendant said note and mortgage which the defendant indorsed and delivered to the plaintiff; that the defendant failed to take up and repurchase said note. The third count contains the common counts to which is attached an affidavit setting up, among other things, that said claim of plaintiff was for money advanced by plaintiff to defendant to enable it to make a loan and to purchase the property representing a loan of $10,000 known as the Albrecht loan, secured by mortgage on real estate in Shedburne county, Minnesota ; that the defendant contracted and agreed to pay to the plaintiff on March 1, 1925, the said sum of $10,000 with interest at the rate of six per cent.

To the declaration the defendant pleaded the general issue and filed notice of special defenses under said plea. The special defenses relied upon were that the defendant never authorized any officer to carry on negotiations with reference to the matters alleged in plaintiff’s declaration; that if any officer or agent of the defendant purported to carry on said negotiations, said acts and doings were not and are not the acts of the defendant; that the defendant never had any knowledge of the matters alleged in plaintiff’s declaration; that it never affirmed, ratified, nor approved any of the alleged acts; that it never received any benefit from said acts, pecuniary or otherwise; that it never authorized either expressly or impliedly any of its officers or agents to represent the defendant in connection with the matter complained of; that defendant never had any knowledge, either actual or constructive, of the transactions.

The affidavit of merits filed by the defendant contains substantially the same matters as set forth in its notice of special defenses relied upon.

The record discloses that on June 24, 1924, J. O. Laugman, president of the defendant insurance company, wrote Emmet C. May, president of plaintiff company, a letter which is in words and figures as follows:

“June 24, 1924
Mr. Emmet C. May, President
Peoria Life Insurance Company
Peoria, Ill.
Dear Mr. May:
“You always have been much like a big brother to me and I rather regret that I persistently call on you for favors and I am not permitted to do anything real in return.
“Sometime ago, I made the promise to a man that we would handle a mortgage loan for him amounting to $10,000. I have been all over the property and know it well and am satisfied with it — but owing to heavy death losses and failure to collect quite a bit of mortgage loan interest, we are quite reduced in cash.
“I wonder if you can carry this for us until March 1, 1925. I shall greatly appreciate it if you can, it being understood that we take the loan up at that time.
“It is a full fifty per cent loan. I insisted that the appraisal be kept down to $100.00 an acre as I wanted to be conservative although the land across the road sold for $125.00. However, I kept it down so no one could say I had allowed any inflation in value.
There is a commission of $300.00 and I am willing to give up every cent of this to get the loan taken care of and make my word good.
“I am enclosing a description of the property and if you can handle it, I will have the papers all completed and sent you in accordance with the terms of this letter.
“Assuring you of my appreciation of what you have done in the past and what you possibly can do for me at the present time, I am
Sincerely yours,
JOL:N J. O. Laugman.”

The record also shows that on July S] 1924, Emmet C. May, president of the plaintiff company, wrote Laugman in reply to his favor of June 24, 1924, which is as follows:

“July 3, 1924
Mr. J. O. Laugman,
President, International Life & Trust Company,
Moline, Ill.
My dear Mr. Laugman:—
“I have been delayed in answering your letter because I have been out of the city part of the time. Referring to the same will say that while we do not loan in Minnesota, and while I believe from the appearance of the application this is not a loan that we would make, yet we want to grant you every favor that we can and will carry your loan if you desire to make it yourself and endorse the note over to us. If you care to you may make the endorsement in pencil so you can erase it when it comes back. You had better make assignment to us which we will, of course, not record, but in case of an examination from the Department, we would have the papers all intact.
“I assume that the loan draws 6%. We do not want any of your commission. When the papers are ready you may send them along and we will give it proper consideration.
Yours very truly,
Emmet May
ECM:T President.”

Other correspondence discloses that the note and mortgage were delivered to the plaintiff company and the check for $10,000 was mailed to J. O. Laugman, President, International Life and Trust Company. The evidence shows that a demand was made by the plaintiff on the defendant to take up said note and mortgage, as is alleged in the said first count of the declaration, or to repurchase the- same, as set forth in the second count of the declaration, and on its failure to do so, plaintiff instituted this suit with the result as aforesaid.

A number of reasons are assigned by the defendant for a reversal of the judgment. It is the contention of the defendant that Cahill’s St. 1925, ch. 73, ¶¶ 368 and 370, are a part of the charter of the defendant corporation. By the provisions of the statute all moneys and investments must have the approval of the board of directors or some committee thereof charged with the duty of supervising investments and loans. It is argued that the acts of J. O. Laugman, president of the defendant company, with reference to the loan in question were ultra vires and beyond and in excess of the charter powers of the corporation; that J. O. Laugman, its president, had no authority to enter into the agreement set forth in the declaration. In other words it is contended by the defendant that because of the fact that it did not, by its loan committee or board of directors, first pass upon and approve the loan in question, that the action of Laugman, its president, in procuring the assignment of said loan by Schwab to the defendant and its reassignment to the plaintiff with an agreement to take up or repurchase the same on March 1, 1925, with interest, is ultra vires and for that reason no recovery can be had against the defendant.

Where acts of a corporation are spoken of as ultra vires, it is not intended that they are unlawful, or even such as a corporation cannot perform, but merely that they are not within the powers conferred upon the corporation by the act of its creation, and are in violation of the trust reposed in the managing board by the shareholders, that the affairs shall be managed and the funds applied solely by carrying out the object for which the corporation was created. Kadish v. Garden City Equitable Loan & Building Ass’n, 151 Ill. 531-537.

It is well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party and the corporation has had the full benefit of the performance of the contract. Kadish v. Garden City Equitable Loan & Building Ass’n, supra.

Where a party deals with a corporation in good faith — the transaction is not ultra vires — and he is unaware of any defect of authority or other irregularity on the part of those acting for the corporation, and there is nothing to excite suspicion of such defect or irregularity, the corporation is bound by the contract, although such defect or irregularity in fact exists. If the contract can be valid under any circumstances, an innocent party in such a case has a right to presume their existence and the corporation is estopped to deny them. Merchants’ Nat. Bank of Boston v. State Nat. Bank of Boston, 10 Wall. (U. S.) 604; Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552-572, 573.

The distinction between the doing by a corporation of an act beyond the scope of the powers granted to it by law on the one side and an irregularity in the exercise of the granted powers on the other is well established and has been constantly recognized by this court. Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., supra, 552-570.

Where an act is not ultra vires for want of power in the corporation, but for want of power in the agent or officer, or because of the disregard of formalities which the law requires to be observed, or is an improper use of one of the enumerated powers, it may be valid as to third persons. National Home Building & Loan Ass’n v. Home Sav. Bank, 181 Ill. 35-44.

When a corporation is acting within the general scope of the powers conferred upon it by the legislature, the corporation, as well as persons contracting with it, may be estopped to deny that it has complied with the legal formalities which are prerequisites to its existence or to its action because such prerequisites blight in fact have been complied with. National Home Building & Loan Ass’n v. Home Sav. Bank, 181 Ill. 35-45; Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24.

While it may be true as contended by the defendant that the statute requires the approval of the board of directors or a loan committee appointed by the board of directors and that the officers of the company acted irregularly in making the loan, it does not follow that it was ultra vires for the defendant company to make the loan in question. In other words we have merely the irregular exercise of the unquestioned power of the defendant company.

We might inquire in passing, What difference does it make in this cause whether the loan to Albrecht by the defendant company was ultra vires or not? This suit is not brought upon the Albrecht loan. The plaintiff company did not participate in making the loan by the defendant company to Albrecht. It assumed no responsibility for it. It was not consulted about it.

In Bradley v. Ballard, 55 Ill. 413, a bill in chancery was filed for the purpose of enjoining the prosecution of a suit pending in the circuit court of Cook county against a corporation called “The North Star G-old and Silver Mining Company,” in which complainant was a stockholder, upon certain promissory notes given by said company, and also to cancel certain other notes not yet in suit. It appeared that a corporation was organized in the city of Chicago in 1856 for the purpose of carrying on the business of mining in the city of Chicago. The company borrowed large sums of money and spent them in mining in Colorado which was ultra vires the corporation. It was not claimed that the notes were not given for a full and fair consideration, but their cancellation was sought upon the ground that they were given for money borrowed to enable the company to prosecute a business which it had no power to prosecute, and that this purpose was known to the lenders of the company. The court in its decision on page 417 said:

“It is said by counsel for complainant, that a corporation is not estopped to say, in its defense, that it had not the power to make a contract sought to be enforced against it, for the reason, that if thus estopped, its powers might be indefinitely enlarged. While the contract remains unexecuted on both sides, this is undoubtedly true, but when, under cover of this principle, a corporation seeks to evade the payment of borrowed money, on the ground that, although it had power to borrow money, it expended the money borrowed in prosecuting a business which it was not authorized to prosecute, it is pressing the doctrine of ultra vires to an extent that can never be tolerated, even though the lender of the money knew that the corporation was transacting a business beyond its chartered powers, and that his money would be used in such business, provided the business itself was free from any intrinsic immorality or illegality. ’ ’

To the same effect is Darst v. Gale, 83 Ill. 136, which quotes extensively from Bradley v. Ballard, supra, and fully supports the doctrine that where money is loaned in good faith the fact that the borrower uses the money in an illegal manner or for an unauthorized purpose, even though the lender knew it was going to be so used is no defense so long as such use was not participated in by the lender, or was not intrinsically immoral or illegal. There was nothing immoral or illegal in and of itself in making the Albrecht loan by,the defendant company and it is equally certain that the plaintiff company took no part in making it. This is made clear by Mr. May’s first letter, already set out in this opinion, in which he says his company did not loan in Minnesota, and from the looks of the application the proposed loan was not one his company would make. “Yet,” he said, “we want to grant you every favor that we can and will carry your loan if you want to make it yourself and endorse the note over to us.”

If it was within the corporate powers of the defendant company when regularly acting by its board of directors or loan committee to approve the Albrecht loan, then the act of Laugman, its president, in conjunction with Johnson, its secretary, in making the regular assignment of the mortgage to the plaintiff company and the act of Laugman in indorsing and transferring the $10,000 note made by Albrecht and the agreement to repurchase the said loan was not ultra vires because it was within the corporate powers of the defendant company when regularly acting through its loan committee or board of directors. Furthermore, corporations act only through their agents. The president of a corporation is by virtue of his office recognized as the business head of the company and any contract executed by the president on behalf of the corporation pertaining to corporate affairs within the general powers of the corporation, will, in the absence of proof to the contrary, be presumed to have been done by authority of the corporation and will be binding upon the' company. Quigley v. W. N. Macqueen & co., 321 Ill. 124.

A corporation can act only through its agents and the president of a corporation, as the agent and corporate representative, has the power, in the ordinary course of business and in furtherance of the corporate interests, to execute contracts and to bind the company in so doing. He is, by virtue of his office, recognized as the business head of the company, and any contract, pertaining to the corporate affairs within the general powers of such officer, executed by the president on behalf of his corporation, will, in the absence of proof to the contrary, be presumed to have been done by authority of the corporation. George E. Lloyd & Co. v. Matthews, 223 Ill. 477; Atwater v. American Exchange Nat. Bank of Chicago, 152 Ill. 605; Bank of Minneapolis v. Griffin, 168 Ill. 314; Anderson v. South Chicago Brewing Co., 173 Ill. 213; Anderson Transfer Co. v. Fuller, 174 Ill. 221-225; Williams v. Harris, 198 Ill. 501-504. It necessarily follows, therefore, that if the contract had to do with the corporate affairs of the defendant corporation and was within its general powers, such contract, being executed, by its president, on its behalf, would be presumed to be done by authority of the corporation. It is for the defendant company to show that such act was without authority. It is insisted by the defendant that even though it be conceded that J. O. Laugman, as president of the defendant company, could bind it in the sale of the note and mortgage in question, he would have no authority to bind it in an agreement to repurchase said note and mortgage. Where a corporation through its president sold. notes and received the money paid therefor, it is in no position to question the authority of its president to sell the notes or the validity of his agreement to repurchase them, where the transaction appears to have been in furtherance of its corporate interests. Flodin v. W. H. Lutes Co., 191 Ill. App. 195.

Where a sale of notes is made by a corporation to obtain money for corporate purposes, there is an implied and incidental power to make the sale conditional upon an agreement for repurchasing the notes. Flodin v. W. H. Lutes Co., supra.

The second count of the declaration is framed upon the theory that the transaction in question was a sale with a contract to repurchase. A contract to repurchase would bind the company as well as a contract to repay the company. Flodin v. W. H. Lutes Co., supra; Quigley v. W. N. Macqueen & Co., supra.

Moreover, the record discloses that the check of the plaintiff in the sum of $10,000 which was issued at the time of this transaction was not payable to Laugman, president of the defendant company, but was made payable to the defendant. The defendant, therefore, if the transaction was one which was within its corporate powers, would be held in law to have received the proceeds of the transaction, even though its president, in breach of his duties as such, converted the proceeds to his own use. Although the defendant contends that it did not know of this particular transaction and did not receive the money, it will be remembered that the only way that a corporation can act is through its agents and officers and the knowledge of Laugman was the knowledge of the defendant company and when Laugman received the check for $10,000, the defendant received it. The check being made payable to the defendant company and indorsed by it and its own officer, elected and empowered to act in that capacity, the defendant is now in no position to say that it did not receive the money from the plaintiff. Welsh v. Bruce Sewing Machine Co., 223 Ill. App. 467-469; also Kadish v. Garden City Equitable Loan & Building Ass’n, supra.,

The evidence shows that on two prior occasions transactions of a similar character as the one in controversy did take place between the plaintiff and the defendant, known as the Kunkle and Sollo loans. We are not unmindful of the fact that the defendant insists that these two loans should not be considered here for the reason that’ the record of the defendant corporation discloses that the committee 'appointed to pass on loans made by the defendant passed on these two particular loans. At the time the Kunkle and Sollo loans were made Laugman was president of the defendant company. The Kunkle and Sollo loans were handled in the same way as the Albrecht loan. The defendant held Laugman out to the plaintiff as possessing the power and authority to act in the way that he did act which estops the defendant in this proceeding from claiming that he did not have and possess the same authority in reference to the Albrecht loan that the defendant had held him out and recognized him as possessing in the Kunlde and Sollo loans. The Kunlde and Sollo loans were handled by the plaintiff company for the defendant company as accommodations the same as the Albrecht loan with an agreement to repurchase or to take up, which was complied with in the Kunkle and Sollo loans. As far as the Peoria Life Insurance Company was concerned no more authority for Laugman to act for defendant in handling the Kunkle loan or handling the Sollo loan was communicated to it than was his authority to act in handling the Albrecht loan.

We are of the opinion that since the record discloses that the loan in controversy was obtained in the same manner as were the Kunkle and the Sollo loans and no information was communicated to the plaintiff by the defendant of any different state of facts existing in the subsequent loan than existed in the former that the said defendant is now estopped from claiming that Laugman, its president, did not have and possess the same authority in reference to the Albrecht loan which the defendant held him out and recognized him as possessing in the other two instances.

A number of other questions are urged by the defendant in support of its contention for a reversal of the judgment. Among them is that the plaintiff was guilty of negligence as a matter of law in its dealings with the then president of the defendant company, J. O. Laugman, and in remitting when it did its funds to Laugman, president of the defendant company. Counsel for defendant has evidently overlooked the fact that the plaintiff did not remit any funds to Laugman. The check for the Albrecht loan was made payable to the defendant as in the Kunkle and Sollo loans and said checks in each of the three instances were indorsed in the same identical way by the defendant company by its president. The plaintiff in each instance dealt with the defendant through its recognized highest officer.

The defendant seeks to invoke the rule that a person dealing with an agent is bound at his peril to ascertain not only the effect of the agency but the extent of the agent’s authority. That rule cannot be invoked in this cause. Not only did Laugman as president of the defendant company have apparent authority to act but was held out and recognized by the defendant as having full and complete authority in two prior like transactions between the parties to this litigation and which led the plaintiff in good faith to believe that he possessed the authority defendant had recognized him as possessing in the other two instances and therefore plaintiff was not required to make any further inquiry as to Laugman’s authority but had a right to rely on what defendant had in the other two instances represented and recognized him as possessing and the question of the plaintiff acting at its peril is not in this case as far as plaintiff is concerned.

Other questions have been suggested and argued. We have examined them and believe there is no merit in them.

The contract between the parties is not ambiguous. While in some respects it is informal it is clear and definite and is embodied in the correspondence of Laugman to May and May to Laugman. These letters embody the contract between the parties and show that this was a temporary loan to be repaid on March 1, 1925, and was not an outright purchase as contended for by the defendant.

Numerous findings were submitted to the court and were passed upon on the hearing of said cause. In view of the conclusion we have reached we do not deem it necessary to discuss the numerous propositions and findings submitted.

We think that justice has prevailed in this cause. We believe that the law arising out of the facts as disclosed in this proceeding is with the plaintiff. We are of the opinion, therefore, that the judgment of the circuit court of Rock Island county should be affirmed, which is accordingly done.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Cecil R. Lull, Plaintiff in Error.
    Gen. No. 7,750.
    1. Intoxicating liquor — burden to prove sale was made without a doctor’s prescription. A drug store clerk who seeks to justify his alleged illegal sale of intoxicating liquor, by urging the absence of proof that the liquor was sold without a doctor’s prescription, should prove that he or the proprietor was authorized by a permit to sell intoxicating liquor.
    2. Intoxicating liquor — necessity of showing liquor was fit for beverage purposes. In a prosecution of one under an information for the illegal sale of “intoxicating liquor,” it is not necessary to prove that the liquor was fit for beverage purposes, since under Cahill’s St. ch. 43, ¶ 2, the term “intoxicating liquor” signifies that it is potable or fit for beverage purposes.
    3. Intoxicating liquor — necessity of alleging knowledge of seller. An information charging unlawful sale of intoxicating liquors need not allege that the accused knowingly sold the liquors for beverage purposes, except where it is charged that the liquors are proprietary or patented articles, such as mentioned in Cahill’s St. ch. 43, ¶ 4.
    4. Criminal procedure — harmless error in not identifying intoxicating liquor. It cannot be successfully urged on review of a conviction for an illegal sale of intoxicating liquor that there was no actual offer of proper identification of the liquor attempted to be used in evidence, where it is not pointed out by the accused wherein he was injured, and where counsel for the accused assumed, in the cross-examination of a witness, that the liquor had been taken from the accused.

      5. Criminal procedure — identification of accused with person mentioned in information. There is sufficient proof that "Cecil Robert Lull" is the same person mentioned as "Robert Lull" in an information charging an illegal sale of intoxicating liquor, where the accused testifies that his name is "Cecil Robert Lull" and that he was known as "Robert or Bob Lull,” and he was called "Bob Lull" throughout the trial.
    6. Criminal procedure — waiver of right to have information verified. The constitutional right of one accused on information of the illegal sale of intoxicating liquor that the information should be verified is waived by proceeding to trial without objection.
    7. Intoxicating liquor — right to prosecute illegal sale by an information. The selling of intoxicating liquor is a misdemeanor that can be prosecuted by the filing of an information.
    Error by defendant to the County Court of Kendall county; the Hon. Arthur G. Larson, Judge, presiding.
    H eard in this court at the April term, 1927.
    Affirmed.
    Opinion filed September 24, 1927.
    William C. Mooney, for plaintiff in error.
    R. O. Leitch, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

The State’s attorney of Kendall county filed an information, consisting of three counts, against Cecil E. Lull, plaintiff in error. The first count charged that the plaintiff in error, on the 10th of October, 1926, did unlawfully sell intoxicating liquor containing in excess of one-half of one per cent by volume of alcohol, and being then and there fit for beverage purposes, without having a permit so to do. The second charged that the plaintiff in error did, on the same date as alleged in the first count, possess intoxicating liquor containing in excess of one-half of one per cent by volume of alcohol and being then and there fit for beverage purposes, without having a permit so to do. The third count charged that the plaintiff in error did, on the date as alleged in the first count, unlawfully fail to make a record of a certain sale of intoxicating liquor containing in excess of one-half of one per cent by volume of alcohol and then and there being fit for use for beverage purposes, by him then and there made to one Edward Fanning.

A motion to quash the information and each count thereof was made and overruled. Subsequently, the second and third counts in the information were nolled by the State’s attorney. A jury trial was had and the plaintiff in error was found guilty of selling intoxicating liquor in manner and form as charged in the first count of the information. A motion to set aside the verdict and for a new trial was made by plaintiff in error which was denied. Motion in arrest of judgment was made and denied, and the plaintiff in error was thereafter sentenced by the court to pay a fine of $250 and costs, and to be confined in the county jail of Kendall county for 60 days, from which judgment and sentence plaintiff in error prosecutes this writ of error.

The plaintiff in error urges a reversal because (1) he was employed in a bona fide drug store and there is no proof that the liquor was sold without a doctor’s prescription; (2) that there is no proof that the liquor sold was fit for beverage purposes; (3) that there is no proof that the purchase and sale were not made for medicinal purposes; (4) that there is no proper identification of the liquor attempted to be used in evidence; (5) there is no proof that the plaintiff in error was the same person mentioned in the information and charged with the crime. We will consider the reasons in the order as stated herein by the plaintiff in error.

While the record discloses that the plaintiff in error was employed in a bona fide drug store, the Prohibition Act requires a druggist to have a permit for the sale of whisky. Although plaintiff in error was employed in a drug store, yet if he seeks to justify his act in the sale of intoxicating liquor, it was incumbent upon him to make proof of the fact that he, or the proprietor for whom he worked and for whom he was clerking, was authorized by a permit to sell intoxicating liquor.

It is urged, next, that there is no proof that the liquor sold was fit for beverage purposes. It will be observed that the indictment uses the term “intoxicating liquor” in the first count, and such liquor includes brandy, whisky, rum, gin, beer, ale and wine, and in addition thereto, any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary or patented, and by whatever name called, containing one-half of one per cent or more of alcohol by volume, which are fit for use for beverage purposes, as defined in section 2 of the act. (Cahill’s St. ch. 43, ¶ 2.) Under such a definition, when a liquor is designated as “intoxicating liquor” that designation signifies that it is “potable as a beverage,” or “fit for beverage purposes.” State v. Brown, 151 Minn. 340, 186 N. W. 946, a decision of the Supreme Court of Minnesota. The case of State v. Brown, supra, finds support in State v. Hosmer, 144 Minn. 342, holding in substance that when a liquor is described as “intoxicating liquor” that designation of it signifies that it is potable as a beverage or fit for beverage purposes, as a liquor can intoxicate only when used as a beverage. To the same effect see People v. San Filippo, 243 Ill. App. 146-148-149. A count in an indictment charging unlawful possession of intoxicating liquor for the purpose of sale need not allege that the liquor was fit for beverage purposes, as the term “intoxicating liquor” signifies that it is potable or fit for beverage purposes. People v. Cioppi, 322 Ill. 353. Furthermore, a charge of a violation of the Prohibition Act in the possession and sale of intoxicating liquor need not specify the kind of liquor sold nor allege that it was fit for use as a beverage, as the statute has defined the term “intoxicating liquor” and a defendant so charged with the violation of the statute is sufficiently informed of the nature of the charge. People v. Alfano, 322 Ill. 384.

It is next urged that the information does not charge that the plaintiff in error knowingly sold the liquor for beverage purposes. We are of the opinion that such an averment is unnecessary except where it is charged in the information that the intoxicating liquors are proprietary or patented articles, such as are mentioned in section 4 of the Prohibition Act, Cahill’s St. ch. 43, 4. It is no offense to sell patented medicines, lemon extracts and the like without a permit or a doctor’s prescription, but if the druggist knows, or under the circumstances ought to know, that such articles are being sold for beverage purposes, he then becomes liable, under the law, but his knowledge must be both averred and proven.

It is next contended that there was no proper identification of the liquor attempted to be used in evidence. The record discloses that the People’s Exhibits “1” and “2” and “1A” and “IB” were identified and throughout the trial of the cause were treated as though they had been offered, but the record fails to disclose that the offer was actually made. It is not pointed out by the plaintiff in error wherein any injury was occasioned to him on the trial of the case by reason of this circumstance of which he complains. In other words, there was nothing in this circumstance which worked any injury to the plaintiff in error. The record also shows that counsel for the plaintiff in error, during the cross-examination of a witness, put this question: “In the Exhibits offered here who put the memo” taken from the auto of Ed Fanning “and other wording on the bottles?” We therefore conclude that there is nothing under the fourth reason assigned for a reversal that caused an injury to the rights of the plaintiff in error.

Lastly, it is urged that there is no proof that plaintiff in error is the same person as mentioned in the information and charged with the offense of selling intoxicating liquor. The information was filed against the plaintiff in error under the name of Eobert Lull. The record discloses that when he took the stand and was examined by his counsel on direct examination, he stated that his name was Cecil Eobert Lull. He was then asked by his counsel this question: “You go by the name of Eobert or Bob Lull?” and his answer was: “Yes, sir.” Throughout the trial the plaintiff in error was called Bob Lull- The only information we have been able to find, after a careful examination of the record, ran against Eobert Lull and it was properly verified by Eichard 0. Leitch. The information was filed by Eichard 0. Leitch, State’s attorney. The plaintiff in error was arrested by the name of Eobert Lull.

The record fails to disclose that anything was said relative to the information in the motion for a new trial, nor was the question raised in so far as the record discloses, by the motion in arrest of judgment.

We think the record fully discloses that the plaintiff in error is the same person as mentioned in the information and charged with the violation of the Prohibition Act therein.

It is finally argued in the reply brief of the plaintiff in error, although it does not seem-to have been raised in the trial court, that there was no verification of the information. This, evidently, is based upon a misapprehension of the facts. In his reply brief, plaintiff in error claims that the information was amended and, as amended, was not verified. We have already stated that there is only one information in the record' and' that runs against the defendant by the name of Robert Lull, and he was arrested by that name and it was to this information that he entered a plea of not guilty and entered upon a trial without raising any question of any kind or character relative to the name by which he was charged. If one is charged with a misdemeanor in an information and he enters upon the trial without raising any objection as to the verification, he waives his constitutional right. In People v. Honaker, 281 Ill. 295-299, it was said:

“Without doubt a defendant may waive the benefit of the constitutional provision and would waive it by failing to make any objection.”

By bringing the cause to the Appellate Court for review, one found guilty of an assault and battery waives the objection that the information on which he was arrested and tried was verified by the State’s attorney upon information and belief only, notwithstanding the question was preserved by proper motions in the court below. People v. Vaughn, 215 Ill. App. 452. In a discussion of the case of People v. Vaughn, supra, at page 453 the court, among other things, said:

“The information on which he was arrested and tried was verified by the State’s attorney upon information and belief only. Vaughn argues that this was a violation of his constitutional rights, under People v. Clark, 280 Ill. 160, and People v. Honaker, 281 Ill. 295. He preserved this question by proper motions in the court below, which the court denied. But by bringing the cause to the Appellate Court he has waived the defect, if any. People v. Powers, 283 Ill. 438; People v. Reed, 287 Ill. 606.”

Since the plaintiff in error proceeded to trial upon the information in which he was charged, under the name of Bobert Lull, and raised no question as to the verification, he waived his constitutional right and cannot now be heard, even though his position was true, that he assumes at this time.

The bill of rights provides for a trial by a jury, yet one accused of crime may waive the right to a trial by jury; also one who is charged with a misdemeanor, as is done in the case at bar, may waive his constitutional right to a trial by jury. A jury may be waived in a case involving a misdemeanor and such waiver may be oral or in writing and no particular form is necessary. People v. Fisher, 303 Ill. 430. The misdemeanors.in which a trial by jury may be waived are such as may be prosecuted otherwise than by an indictment. Paulsen v. People, 195 Ill. 507. The selling of intoxicating liquor is a misdemeanor that can be prosecuted by the filing of an information. Whatever may be the contention of the plaintiff in error, the fact remains that the record discloses but one information and that was the one in which the plaintiff in error was charged with the selling of intoxicating liquor under the name of Robert Lull. It is the one to which he interposed a plea of not guilty and entered upon the trial, and it is the one under which he was convicted and sentenced.

We conclude, therefore, that there are no reversible errors disclosed in the record, and that the judgment of the county court of Kendall county should be affirmed, which is accordingly done.

Judgment affirmed.


author: Mr. Justice Boggs

text:
    George R. S. Hoffman, Appellee, v. Lydia Hoffman, Appellant.
    Gen. No. 7,756.
    1. Former adjudication — same fact in different causes of action by same parties. When some specific fact has been adjudicated in a former suit, and the same fact is again put in issue on a subsequent suit between the same parties, the determination in the former suit is conclusive upon the parties in the latter suit without regard to whether or not the cause of action is the same in both suits.
    2. Former adjudication — facts in wife’s suit for separate maintenance is res ad judicata in husband’s suit for divorce. An adjudication in a wife’s suit for separate maintenance that her husband was not guilty of cruelty and that she had left him without good cause, and an adjudication in a second suit of the wife for the same cause that she had not offered in good faith to return, to her husband, prevents the wife from showing, in a subsequent suit by the husband for divorce on the ground of desertion, cruelty of the husband and her offer to return to him at any time prior to the rendition of the second decree in separate maintenance.
    3. Evidence — admissions in dill for separate maintenance. An allegation in' a wife’s suit for separate maintenance, based on her offer to return to her husband, that she was not justified in leaving him and living apart is an admission of record that at the time she was not justified in living separate and apart from him.
    4. Divorce — desertion as a ground. A husband is entitled to a decree of divorce for desertion where his wife has wilfully absented herself or deserted him for more than two years prior to the filing of his bill.
    Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Edward D. Shurtleff, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed September 27, 1927.
    North, Linscott, Gibboney & North, for appellant.
    Hall & Dusher, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellee filed a hill in the circuit court of Winnebago county on June 22, 1922. As finally amended, said bill alleges that appellee was intermarried with appellant on November 17, 1921; that they cohabited together as husband and wife until February 20, 1922, when appellant wilfully deserted appellee without any reasonable cause therefor; that said desertion had continued until the filing of said bill; that on February 20, 1922, appellant filed a bill against appellee for separate maintenance; that appellee filed an answer to said bill, as amended, and thereafter, on June 27, 1922, a decree was entered dismissing said bill for want of equity. Said bill further alleges that on November 14, 1922, appellant instituted another suit for separate maintenance, and by leave of court an amended bill therefor was filed on March 28, 1923, to which amended bill, on the same day, appellee filed an answer. On hearing on April 6, 1923, a decree for separate maintenance was rendered, awarding appellant alimony and solicitor’s fees; that, upon appeal to this court, said decree was affirmed; and that, on certiorari to the Supreme Court, the judgment of the circuit court and of this court was reversed without remanding. Copies of all of said pleadings and of the decrees rendered by the circuit court, and the judgment and opinion of the Supreme Court above mentioned were attached to said bill as exhibits and made a part thereof.

To said bill appellant filed an answer on October 4, 1926, in which answer she admits the marriage of herself and appellee and that they separated on February 20, 1922; that the court proceedings set forth in appellee’s bill were correctly set forth, but “states the fact to be that said record matter is immaterial, irrelevant and is in no way any bar to any of the rights of this, defendant to defend herself against the unreasonable and unjust charge of desertion as set forth in said complainant’s amended bill of complaint.” Said answer denies the right of appellee to a divorce for desertion, and sets forth as a reason therefor that “the said complainant, within a few days after said marriage as above set forth, commenced a course of unkind, inhuman and cruel conduct toward this defendant ; * * * that he became so cruel and harsh and violent toward this defendant that it was impossible for this defendant to sleep with or remain in the same bed in the same room, and specifically, and in furtherance of his desire and design to drive this defendant from his bed and board, he at various times beat, struck and lacked this defendant in his efforts to drive this defendant from his home; * * * that on or about the 20th day of February, 1922, the complainant cruelly assaulted and beat this defendant and threatened her life, whereupon this defendant was obliged to leave in the nighttime and seek protection and help and shelter from her neighbors,”

Appellant further avers in said answer that after said separation she “did, during the month of June, 1922, go to said home of the complainant as the wife of said complainant, and advise the said complainant that she was ready, willing and desirous of reassuming her position in the home of the said complainant, and that she was truly sorry for all that had happened, * * * but the said complainant refused to recognize her or to speak to her or to make suitable or proper provision for her support or maintenance,” and that he thereafter leased said home to tenants and abandoned the same. Appellant further avers “that she is now and at this time desires to return to the said complainant and to do all on her part as his wife to make his home comfortable and happy, and to live with him as a husband and wife should live together.”

Exceptions were filed to such portions of said answer as charged cruelty on the part of appellee toward appellant, and of her offer to return to appellee, prior to April 6, 1923, the date of the rendition of said decree for separate maintenance. On hearing, the exceptions to said portions of the answer were sustained.

On the trial of said cause, on objection by counsel for appellee, appellant was limited in the examination of witnesses on the charge of cruelty and on the offer by appellant to return to appellee to live with him as his wife, so far as the same pertained to a time prior to the rendition of said decree. A verdict was returned, finding that appellant had been guilty of desertion as charged in said bill, and a decree was rendered thereon dissolving said marriage relation. To reverse said decree, this appeal is prosecuted.

Counsel for both parties devote practically the whole of their arguments and citations of authority to the question of the correctness of the rulings of the trial court in so limiting the admission of evidence and the cross-examination of witnesses to a time subsequent to April 6, 1923, and that is practically the only question before this court.

In the first suit instituted by appellant against appellee for separate maintenance appellee was charged with extreme and repeated cruelty, failure to properly support appellant, and the use towards her of harsh and uncalled for language. As stated, that suit was dismissed for want of equity. In the amended bill on the second suit for separate maintenance appellant makes no charge of cruelty against appellee, but bases her prayer for relief on the ground that she had in good faith offered to return to him after the rendition of said decree, and that appellee had wrongfully refused to receive her.

The Supreme Court in passing on said cause goes into the pleadings and the testimony, and recites the same at some length. (Hoffman v. Hoffman, 316 Ill. 204.) After such review, the court at page 212 says:

“In order to support the decree for separate maintenance it is necessary that the complainant allege and prove first that she has a good cause for living separate and apart from her husband, and second that such living apart was without fault on her part. (Decker v. Decker, 279 Ill. 300; Johnson v. Johnson, 125 Ill. 510.) A hearing was had on the bill filed in February, 1922, on the charge of cruelty and misconduct toward her and a finding against her on that charge was made. That decree was binding upon her and was res judicata of all her charges of cruelty and misconduct toward her and upon the question whether up to that time she had been living separate and apart from plaintiff in error by reason of his fault. In effect it was a finding that she had left him without good cause.”

If the statement of the court to the effect that the dismissal of the first suit for separate maintenance was an adjudication on the question of the alleged cruelty and misconduct charged against appellee and on the question as to whether or not appellant was not living separate and apart from appellee by reason of his fault, and in effect that she left him without good cause, then it would seem to follow as a logical conclusion that inasmuch as the court further holds that where a wife voluntarily abandons her husband or does so without good cause, she is not entitled to separate maintenance, for the reason that she is not living separate and apart from her husband with good cause and without fault on her part. Citing Deke v. Huenkemeier, 289 Ill. 148; Hutchinson v. Hutchinson, 250 Ill. 170; People ex rel. Arns v. Rickert, 159 Ill. 496; Wahle v. Wahle, 71 Ill. 510; Jones v. Smith, 13 Ill. 301.

The court discusses the evidence with reference to appellant’s offer to return, and says: “We are convinced in this case, on a review of the record, the situation of the parties and what had transpired before then, that defendant in error has not sustained the burden resting upon her to prove an offer to return in good faith, and that she is not entitled to a decree for separate maintenance. ’ ’

It would seem to follow as a logical conclusion from the holding of the Supreme Court to the effect that the decree dismissing the first suit brought by appellee was an adjudication that appellee was not guilty of cruelty and misconduct toward appellant, and that the appellant “had left him without good cause,” and from the finding of said court on the second suit for separate maintenance that appellant had not sustained the allegation, of good faith in her offer to return to appellee and resume marital relations, that the decree in the instant case should be affirmed.

When some specific fact has been adjudicated and determined in a former suit, and the same fact is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied upon, will be. conclusive upon the parties in the latter suit, without regard to whether or not the cause of action is the same in both suits. Pillsbury v. Early, 324 Ill. 562; Winkelman v. Winkelman, 310 Ill. 568-572-573; McNamara v. McNamara, 303 Ill. 191-197; Public Utilities Commission v. Smith, 298 Ill. 151-161; Mahannah v. Mahannah, 292 Ill. 133-138.

A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined, is conclusively settled by a judgment therein, so far as it concerns the parties to that action, and cannot be again litigated in a future action between the same parties in the same court, or in any other court of concurrent jurisdiction, upon either the same or a different cause of action. Winkelman v. Winkelman, supra; People v. Locklin, 273 Ill. 106-108.

All of the pleadings, decrees and judgment of the Supreme Court reversing the separate maintenance suit, and the opinion, were offered in evidence, and as stated, the answer of appellant admitted the correctness of these records. In Standard Brewery Co. v. Creedon, 283 Ill. 474, the court in discussing a question of this character, at page 485, says:

“The pleadings and the decrees in the other cases in which plaintiff in error was a party were competent evidence.” Citing Prescott v. Fisher, 22 Ill. 390. In Schaefer v. Wunderle, 154 Ill. 577, the court in discussing the effect of a decision of the Supreme Court reviewing a decree of a lower court, at page 583, says: “It would seem that, when the court of last resort has affirmed or reversed a decree, its decision should be an end of the litigation; and a bill to review such a decree is very much like an attempt to appeal from the decision affirming or reversing it. (Felty v. Calhoon, 147 Pa. St. 27.) The decision so affirming or reversing ought to be regarded as res judicata, as between the parties to the suit in which it is rendered. (Abrams v. Lee, 14 Ill. 167; Lazell v. Francis, 4 Scam. 421.) ”

It would seem, from the exhaustive review by the Supreme Court of the pleadings and facts in the separate maintenance proceeding between appellee and appellant, and its very clear and conclusive statement as to the effect of the same, the doctrine above announced ought to apply in this case as to all matters litigated prior to the rendition of the decree of April 6, 1923, and we hold that it does.

An examination of the original bill filed by appellant in the second maintenance proceeding discloses that she had been advised by her counsel that the effect of the decree of April 6, 1923, was that she was not justified in living separate and apart from her husband. In the amended bill thereafter filed by her in said proceeding, she specifically states “that thereafter (after the dismissal of her bill for separate maintenance on June 27, 1922) being desirous of correcting on her part any errors or mistakes or conduct on her part against said defendant, and realizing that she was not justified in leaving the defendant and living apart and separate from him,” etc. This in effect is an admission of record that at that time appellant was not justified in living separate and apart from her husband. Schaefer v. Wunderle, supra, 591; Prescott v. Fisher, supra, 393; Blackburn v. Bell, 91 Ill. 434-444; Cronk v. Trumble, 66 Ill. 428-432.

We have carefully examined the case of Umlauf v. Umlauf, 117 Ill. 580, relied on by appellant, and are of the opinion and hold that the language used by the Supreme Court in that case does not militate against our holding here. In that case it was not fully disclosed as to what the issues of fact and the evidence supporting the same were. In that case the court held that the question of the wilfullness of the wife in living apart from her husband was not determined in the separate maintenance proceeding; that the question there involved and determined was that she was not living separate and apart from her husband without her fault. The court in discussing the case stated that the husband might have been guilty of conduct which would have warranted the wife in living separate and apart from him, but that such conduct might have been provoked by the wife, and if that were true she would not be living separate and apart from her husband without her fault.

In the instant case the conduct of appellee as well as of appellant, so far as that conduct was involved prior to the rendition of the decree on April 6, 1923, was passed upon as above set forth, and under the authorities cited has" been adjudicated. Our holding that the rendition of the decree of April 6, 1923, is to be taken as the time back of which said matters have been determined is supported by Baker v. Salzenstein, 314 Ill. 226-233-234.

It should also be observed that appellant in her amended bill in the second maintenance suit admits that at the time she was not justified in living separate and apart from appellee, her husband. The Supreme Court has found that her offer to return as alleged in said bill was not in good faith. As the bill in the instant case was filed more than two years after appellant’s admission of record that she was not justified in living apart from her husband, it would follow as a legal conclusion that she had wilfully absented herself or deserted her husband for more than two years prior to the filing of said bill. This being true, without reference to any other matters involved, the decree of the court was correct.

A husband is entitled to a divorce from his wife where she voluntarily leaves him and remains away for two years and does not -within that time, in good faith and with a sincere desire to effect a reconciliation, return to him or offer to return. Stevens v. Stevens, 210 Ill. 362. A husband whose wife has absented herself from him for a period of two years without reasonable cause is entitled to a divorce on the ground of desertion. Carter v. Carter, 62 Ill. 445; Frank v. Frank, 178 Ill. App. 557-558; Mathews v. Mathews, 227 Ill. App. 465-469. Desertion and absence are treated as synonymous in the decisions of this State. Elzas v. Elzas, 171 Ill. 632-639; Carter v. Carter, supra, 439; Fritz v. Fritz, 138 Ill. 436.

For the reasons above set forth, the decree of the circuit court will be affirmed.

Decree affirmed.


text:
    Charles F. Hoobler, Appellee, v. Frank B. Voelpel, Appellant.
    Gen. No. 7,789.
    1. Directing verdict and demurrers to evidence — when variance between proof and declaration does not warrant. The court rightly refuses to direct a verdict in a tort action on the ground of variance between proof and declaration where no objection had been made to the evidence on such ground at the trial.
    2. Saving questions for review — necessity of moving for directed verdict at close of all evidence. A defendant in a tort action cannot complain on appeal of the court’s overruling his motion for a directed verdict on the ground of variance between proof and declaration when he fails to renew his motion at the close of all the evidence.
    3. Highways and streets — negligence in accident as jury question. Sharply conflicting evidence as to the location of a collision of an automobile with a pedestrian, the speed of defendant’s car and the care of the plaintiff makes a jury question of whether plaintiff exercised due care and whether defendant was guilty of negligence which was the proximate cause of the injury.
    4. Highways and streets — due care of injured ordinance violator as jury question. The jury has the right to decide whether one injured by an automobile running against him exercised due care in crossing a street at a point contrary to ordinance.

      5. Highways and streets — when recovery for injury from automobile not barred by ordinance violation. A plaintiff is not barred from recovery for injuries from an automobile by his crossing a street where not allowed by ordinance if his act did not proximately contribute to the accident.
    6. Damages — $3,000 as not excessive for personal injuries. Three thousand dollars is not excessive damages for the breaking of his collar bone and of two ribs and a permanent heart enlargement resulting from an automobile striking a postal clerk who was earning $175 monthly with $15 to $20 extra in December and whose expenses as a result of his injuries amounted to some $425.
    7. Damages — employment of help as element of. A plaintiff in a suit to recover for personal injuries from being run against by an automobile, may be allowed as damages the cost of extra help in his home made necessary by his injuries.
    8. Damages — not mitigated by another’s payments to injured party. Payments by the government to a postal clerk during the time he could not work due to injuries received from an automobile running upon him and which he swore were for accumulated sick leave and vacations, could not be used to lessen the damages he should receive from the automobile owner.
    Appeal by defendant from the Circuit Court of Peoria county; the Hon. Joseph E. Daily, Judge, presiding.
    Heard in this court at the April, term, 1927.
    Affirmed.
    Opinion filed September 27, 1927.
    Rehearing denied November 8, 1927.
    Eagleton & Eagleton, for appellant.
    Todd, Morgan, Pendarvis & Arber, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

On December 8, 1925, appellee, while attempting to cross Main Street in the City of Peoria, at or near its intersection with Monroe Avenue, was struck by an automobile driven by appellant, and received the injuries for which this suit was brought. The suit as originally instituted was against appellant and his employer, the Joyce-Laughlin Company. Main Street runs in a northwesterly and southeasterly direction through said city, and Monroe Avenue crosses it at right angles. On the trial it was stipulated that for the purposes of the trial, Main Street would be referred to as an east and west street, and Monroe Avenue as a north and south street. Two sets of streetcar tracks run along Main Street, one for the eastbound and one for the westbound travel.

The declaration consists of two counts. In the first count appellee avers that just prior to and at the time of said collision he was crossing Main Street at its intersection with Monroe Avenue. In the second count he charges that at said time he was walking on Main Street. Both counts aver due care on the part of appellee, and that the said Joyce-Laughlin Company by its agent, and appellee, then and there so negligently and carelessly drove, operated and managed said motor vehicle that by reason thereof the same was caused to run against and strike appellee, alleging damages, etc. The second count also charges the operation of said automobile at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the way.

To said declaration the Joyce-Laughlin Company filed a plea of the general issue and pleas setting forth that the act complained of was the sole act of appellant. Appellant filed a plea of the general issue and a plea denying joint liability. At the close of appellee’s evidence, the court directed the jury to return a verdict of not guilty as to the Joyce-Laughlin Company. Thereupon appellant moved the court to instruct the jury to find him not guilty, which motion was denied. A verdict was returned finding appellant guilty and assessing the appellee’s damages at $3,000, upon which verdict judgment was rendered. To reverse said judgment, this appeal is prosecuted.

It is contended by appellant that the court erred in not directing a verdict in his favor at the close of the evidence, because of variance between the proof and the declaration.

No objection was made on the trial to the evidence on the ground of variance. This being a tort action the court did not err in said ruling. Swift & Co. v. Rutkowski, 182 Ill. 18; Westville Coal Co. v. Schwartz, 177 Ill. 272; Swift & Co. v. Madden, 165 Ill. 41; Illinois Cent. R. Co. v. Foulks, 191 Ill. 57-69-71; Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249-265.

It might also be observed that appellant’s motion for a directed verdict was made and denied at the close of appellee’s evidence. The motion was not renewed at the close of all the evidence, and appellant is therefore not in a position to complain of this ruling. Langan v. Enos Fire Escape Co., 233 Ill. 308-312; Reavely v. Harris, 239 Ill. 526-528; Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491-501.

The principal ground relied on by appellant for a reversal of said judgment is that the verdict is against the manifest weight of the evidence, it being the contention of counsel that the evidence fails to prove due care on the part of appellee, and also fails to prove negligence on the part of appellant.

The testimony of appellee and of his witnesses, with reference to what occurred just prior to and at the time of said collision, the speed of appellant’s car, etc., is in substance as follows:

Appellee, who is an employee of the post office in said city, testified that about 5:45 p. m. on the day in question, he left the post office, and that when he got to the Peoria Drug Store, at the northwest corner of the intersection of said streets, “there was a line of cars going up Main Street between the street car track and the curb, and I had to wait for an interval in the line. As soon as I saw I had room to cross the street I started to cross; that is, smith, across Main Street. I proceeded across and parallel with Monroe Street in the regular foot crossing.” He was then asked: “Where were you when you first saw the car that struck you?’’ He answered: “In the car track.” He further testified: “The car was going up Main Street west, coming toward me. I then proceeded straight across the street. When I was struck I was right in the center of the two car tracks. I saw this car coming and I went right across as fast as I could. After I was struck I do not know what happened. * * * In my judgment the car approaching me was coming at least twenty-five miles an hour; no warning was sounded by the driver of the car.”

Simon Fern, a witness on behalf of appellee, corroborated appellee with reference to the line traveled by appellee in crossing said street, and as to the speed of appellant’s automobile.

Mrs. L. A. Bross testified on behalf of appellee that she, with her husband, was in an automobile proceeding south on Monroe Street; that she “saw the car that was being driven by Frank Voelpel just prior to the accident. Voelpel’s car was about the middle of the street car tracks. We were approximately halfway across Monroe Street on Main Street. The Voelpel car came around our car. It passed our car right in the middle of Monroe Street. I was attracted to the car because it swerved out in the street in the beginning and attracted my attention because it acted so peculiar, and the next thing I saw was the man’s body fly in the street.”

L. A. Bross, husband of the above-named witness, testified: “I saw a Ford coupe cut around me. At that time I was about halfway across Monroe on Main, going up Main. My car was about three feet from the outside rail. I was driving my car at that time ten or twelve miles an hour. The Ford coupe was going a whole lot faster than me in order to cut around me, possibly twice as fast as I was.”

David Schaffer testified he was standing in front of his store at 602 Main Street, “getting ready to go home. A nephew of mine that was here yesterday hollered out loud and I looked around and saw Hoobler turn around about two or three times. I did not see the car strike him. I saw him roll a couple or three times, that is, somersault. * * * I did not see the car (appellant’s) moving. I noticed a slide mark on the pavement, I judge about eighteen feet.”

The evidence on the part of appellant and his witnesses tended to show that said collision took place some 40 or 50 feet west of the west line of Monroe Avenue at its intersection with Main Street, and that appellant’s car was being operated at a speed of from six to ten miles per hour. Appellant testified that he proceeded up Main Street “and as I was crossing the intersection * * * the first thing that was called to my attention was the fact that I was about to hit a man, and tried to prevent hitting him by turning to the right; that was above the intersection I should judge fifty feet. * * * There were two cars parked. One parked in the proper parking space along Main Street and the other car double parked, and I proceeded across the intersection, and turning out to avoid the double parked car, found it necessary to drive around it. It was at that time in pulling around the double parked car that I first saw the man that I struck. * * * "When I first saw Hoobler, he was right at the front end of the double parked car. * * * He was so near the front end of that car that it was impossible for me to see him in time to avoid striking him. * * * In attempting to avoid striking him, I turned to my right and tried to stop, shut off the gas and used the brakes. * * * My car was traveling I would say eight or ten miles an hour.”

A Mrs. Lindensfelser, who was riding with appellant, testified: “I would say that the accident occurred * * *, between sixty and seventy feet west of the pedestrians’ sidewalk crossing of Main and Monroe Street on the west side of Monroe. After we had crossed Monroe Street we met those cars double parked and Mr. Voelpel turned to his left to pass them, * * * the car that was double parked was just a little to the front of us when Mr. Hoobler came out directly in front of that car, directly in front of Mr. Voelpel’s car. * * * and he (appellant) applied his brake and I would say that car didn’t move over a car’s length after he saw Hoobler. * * * Hoobler was going diagonally down Main Street. That would be east on Main. He did not look toward our car before the impact. He did not hasten his speed while Voelpel was trying to stop his car and avoid the accident. * * * The car traveled about a car length after the impact.” This witness also testified “that * * * appellant’s car was being operated at from six to ten miles per hour.”

Bert L. Church, a witness for appellant, testified: “The first I noticed was the man (appellee) was just finishing his roll on the ground, and the car that hit him was in the act of stopping, and hadn’t moved over a foot when I saw him. * * * The back end of the Voelpel car might have been anywhere between forty-five to sixty-five feet west of the west sidewalk line of Monroe Street crossing Main Street.” This witness also testified that on that same evening, after appellee was taken to the hospital, the witness inquired of appellee “if he was cutting diagonally across the street off the intersection, and he said that he did not remember, that he might have, as he sometimes did that. ’ ’

This, in substance, was the testimony with reference to how said collision occurred, the line traveled by appellee in crossing Main Street just prior to and at the time of said collision, and the speed at which appellant’s car was being operated at said time, etc. Appellant offered in evidence an ordinance of said city, section 25 of which provided that “In the congested district pedestrians crossing any street must do so in the most direct line from curb to curb, or where lines are designated, or painted by the police department, or Commissioner of Public Works, pedestrians must keep within said lines, going to and from curb to curb, and must not cross diagonally or obliquely, or cross any street except on a cross walk.” It was stipulated on the trial that the intersection here in question “is a very busy corner, and in the business district of the city of Peoria. ”

The evidence as to the location of said collision, the speed of appellant’s car and the due care of appellee was sharply conflicting.

It was therefore a question for the jury, as to whether appellee was in the exercise of due care, and as to whether appellant was guilty of negligence which was the proximate cause of the collision and injury to appellee. We are of the opinion and hold that the jury were warranted in their finding, and that the verdict was not against the manifest weight of the evidence.

Even though, as contended by appellant, -appellee was crossing said street diagonally and not on the direct line of travel, in violation of said ordinance, it is still a question for the jury as to whether at said time he was in the exercise of due care for his own safety. '

In Lerette v. Director General of Railroads, 306 Ill. 348, the court at page 352 says:

“Violation of a law at the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact that plaintiff was violating a law at the time he was injured ought not to bar his right to recover any more than the fact that- defendant was violating a law at the time plaintiff was injured ought to conclusively establish plaintiff’s right to recover. Where the defense is that plaintiff’s unlawful conduct at the time of the accident was the proximate cause of the accident, the difficult question presented for determination is whether the unlawful conduct was a direct and proximate cause contributing, with others, to the injury or whether it was a mere condition of it. The mere fact that plaintiff was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. (Star Brewery Co, v. Hauck, 222 Ill. 348; Graham v. Hagmann, 270 id. 252; Ensley Mercantile Co. v. Otwell, 142 Ala. 575, 4 Ann. Cas. 512; Munroe v. Hartford Street Railway Co., 76 Conn. 201, 56 Atl. 498.)”

It is also contended by appellant that the verdict of the jury is excessive. The testimony discloses that appellee was rendered unconscious; that he suffered a fracture of the left collar bone and of the fifth and sixth ribs on the left side, over the region of the heart, with numerous bruises on different parts of the body. The doctor who attended appellee testified, among other things, that “his heart action was irregular and his heart was enlarged. In my opinion he will not recover from this irregular heart action. I think that is a permanent condition.”

Appellee was confined in the hospital 15 days and was away from his work on account of the injury six weeks lacking one day. He was earning $175 per month in his position as postal clerk, and during the month of December, on account of the holiday trade, he would earn from $15 to $20 additional, for extra work. His doctor bill was $75, hospital bill $103, and he suffered damages to his clothing and effects amounting to $50.50. He further testified that by reason of this injury he was compelled to employ extra help in the home, which cost him $200.

In North Chicago St. R. Co. v. Zeiger, 182 Ill. 9, in discussing a question of similar character, the court at page 12 says:

“The expense necessarily incurred by a plaintiff so disabled, in procuring competent help in his business to do the work which would have been performed by himself had he not been disabled, was a proper subject of allowance for damages in this character of suit. Ashcraft v. Chapman, 38 Conn. 230.”

Under the holding in this case the court did not err in admitting evidence as to the employment of such help.

The evidence also discloses that appellee received pay from the post office for the time in which he was away on account of said injury. He insisted, however, and offered evidence to the effect that he was allowed a certain time for vacation each year, and also for side leave, and that if he did not use his sick leave one year, which was ten days each year, it carried over to the next, and that in receiving his pay as he did, it exhausted six weeks of his accumulated sick leave and vacation periods.

In Consolidated Coal Co. of St. Louis v. Shepherd, 112 Ill. App. 458, the court at page 461 says: “The testimony offered by defendant, that plaintiff received money of an accident association during disability, was properly excluded by the court. It had no legitimate bearing as evidence either in defense or rebuttal. Cox v. City of Chicago, 83 Ill. App. 540.”

In Cox v. City of Chicago, supra, the court at page 542 says: “At the time of his injury appellant was carrying an accident insurance policy. Appellee was allowed to prove, against the objection of appellant, that the insurance company paid to appellant $150 on account of his injury. * * * The admission of such testimony * * * are clearly erroneous unless waived or cured by stipulations or admissions.”

“There is a conflict of authority as to whether the right of the injured party to recover for loss of time is affected by the fact that his employer has continued to pay him his wages or salary during his disability. On this question the general and more reasonable rule is that the gratuitous payment in such case will not preclude a recovery for such loss of time, on the theory that the wrongdoer can have no concern with the transaction between the employer and the employee, and the amount so paid is not to be "regarded, under the circumstances, as in any sense compensation for lost time but rather as a gratuity given by one to the other out of relations of friendship or sympathy between them. And so it is held that amounts so paid, regardless of whether they are paid pursuant to contract or as a gratuity, cannot operate to reduce the damages recoverable against a tortfeasor. ” 8 R. C. L. p. 556, sec. 107; Nashville, C. & St. L. R. Co. v. Miller, 120 Ga. 453 ; Illinois Cent. R. Co. v. Porter, 117 Tenn. 13. Appellant should not be permitted to take advantage of the contract under which appellee was employed to mitigate the damages caused by his act.

We are of the opinion and hold that the damages are not excessive.

No complaint is made of the rulings of the court on the instructions.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.