author: Mr. Justice Wilson

text:
    Checker Taxi Company, Appellant, v. David B. Turkington, Appellee.
    Gen. No. 36,503.

      Opinion filed December 13, 1933.
    Stebbins & L’Amoreaux, for appellant; John M. Allen, of counsel.
    Herbert J. Ferguson and Lee E¡. Daniels, for appellee ; Herbert J. Ferguson, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff, Checker Taxi Co., brought its action in replevin to recover a taxicab from the defendant Turkington. From the return of the bailiff of the municipal court it appears that the property in question was in the possession of one Dan B. Weller who entered his appearance as a defendant and filed cross errors in this case. The trial court found that Weller had no interest in the taxicab replevined and from an examination of the testimony we are in accord with this finding.

The draft judgment order found that the defendant Turkington was indebted to the Checker Taxi Co. in the net sum of $137.22 and entered what appears to have been a conditional judgment finding the right of property in the Checker Taxi Co., but ordering the return of the property upon payment by Turkington to the plaintiff the sum of $137.22. This amount was tendered to the plaintiff in open court and refused and the money was deposited with the clerk of the court subject to the order of the plaintiff. It was thereupon ordered that the defendant have and recover of and from the plaintiff the property replevined and that a writ of retorno habendo issue therefor.

In this State, as the. rule existed at common law, a replevin action was one brought to obtain possession of property, and set-off or counterclaim has not been ordinarily regarded as allowable in such an action. The rule is found in Corpus Juris, Vol. 54, p. 418, as follows:

“(§4) C. As Possessory Action. Replevin is a possessory action. The property is the subject of the action. The gist of the action is plaintiff’s right to immediate possession and defendant’s wrongful taking or wrongful or unlawful detention. The issues to be determined are plaintiff’s present right to possession of the property and defendant’s unlawful detention or possession; and the question of title is not necessarily involved in such an action, although it may be put in issue. The primary object of the action is the recovery of the property itself with damages for- the taking and detention, and secondarily the recovery of a sum of money equivalent to the value of the property taken and detained, with interest thereon. Being purely possessory, replevin is not a proper remedy for the collection of a debt, nor for money due on account, nor to enforce a mere contractual duty, nor to enforce delivery of a deed, nor to determine defendant’s liability as indorser of a note, and it cannot be sustained for the purpose of trying the right of property. . . .”

Plaintiff’s right to possession arises under a bill of sale from Turkington to the plaintiff and a driver’s contract with the right to hold said possession so long as the defendant was in the employ of the company and thereafter until any indebtedness owing from the defendant to the-company should have been paid. The defendant admits owing the plaintiff the sum of $137.22, so that the plaintiff was entitled to the right to possession at the time of the bringing of the action in replevin.

The only provision made in the statute for an alternative judgment is found in section 22 of the act entitled Replevin, chapter 119, ¶ 22, Cahill’s Ill. Rev. St. 1933, which reads as follows:

“. . .if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the same was rightfully held, with proper damages, within a given time, or make return of the property in case such property has been delivered to the plaintiff.”

The property in this case was not held by the defendant Turkington for the payment of any money inasmuch as it is admitted that the plaintiff did not owe Turkington anything but, on the other hand, Turkington was indebted to the plaintiff. If the property in question had been in the possession of the Checker Taxi Co. and Turkington had brought the replevin action, there might have been a conditional judgment directing the Checker Taxi Co. to return the property upon the payment by Turkington of the amount due to him. In the case at bar, however, the facts are just the converse. The order of the trial court should, therefore, have been in favor of the plaintiff, leaving to the defendant the. right to proceed on his own initiative to recover the taxicab after the tender of whatever amount he owed that company.

We have examined the cases cited to the effect that such indebtedness may be set off in replevin and find that these cases arise under very dissimilar statutes of the various States from which decisions are quoted. Under these statutes the distinction between laiy and equity is abolished, or additional rights are given to defendants in replevin actions by such statutes. The new Practice Act, Cahill’s St. 1933, ch. 110, ¶ 129 et seq., may provide for a complete remedy between the parties. As the law now stands in this State, however, the defendant was not entitled to a set-off in this action.

In view of the position of this court in regard to the replevinaction, it becomes unnecessary to discuss the other questions raised. The cross errors assigned are overruled, and the cause will be remanded with directions to the trial court to expunge the order directing the return of the property and to find in favor of the plaintiff with directions to return the money deposited by the defendant with the clerk of that court.

Judgment reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ludwig Cohen, Trading as Maywood Tobacco Company, Appellee, v. Southern Railway Company, Appellant.
    Gen. No. 36,523.
    Opinion filed December 13, 1933.

      Nelson J. Wilcox, Nelson Trottman and I. C. Belden, for appellant.
    Maurice L. Davis, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This was an action brought to recover for loss alleged to have been caused by reason of the failure to deliver a shipment of cigarettes, which had been turned over to the defendant Southern Bailway Company, at Beidsville, North Carolina, for transportation and delivery at Maywood, Illinois. The cause was tried by the court without a jury and resulted in a finding in favor of the plaintiff and judgment upon the finding against the defendant, Southern Bailway Company.

The goods were shipped under a bill of lading issued to the American Tobacco Company with an undertaking on the part of the defendant to deliver said goods at Maywood, Illinois and to notify plaintiff, Maywood Tobacco Co., at that place. We gather from the record that no notice of the arrival of the goods in question was given to the plaintiff by the defendant carrier.

The trial court found as a matter of fact that the goods, were shipped from Beidsville, North Carolina, on June 28, 1929, and consigned to the order of the American Tobacco Co., to notify the Maywood Tobacco Co. at Maywood via Southern Railway Company, and were transported to Chicago and delivered to the Chicago and Northwestern Bailway at its Proviso Yards on July 2,1929; then transported to Melrose Park station (which served Maywood) on July 3, 1929, and unloaded and placed in the freight house of the Chicago and Northwestern Bailway Company. The court also held as a matter of fact that five days from June 28, 1929, was a reasonable time for a shipment of such goods from Beidsville, North Carolina to Melrose Park, Illinois.

The claim of the plaintiff for loss occasioned by the nondelivery of the goods was filed with the initial carrier January 6,1930. It is defendant’s contention that plaintiff’s claim was not “filed within six months after a reasonable time for delivery had elapsed. ’ ’ This defense is based upon the fact that the shipment was one in interstate commerce and transported under the regular form of bill of lading on file with the Interstate Commerce Commission, which contained the limitation clause as hereinbefore stated. The bill of lading also contained a provision to the effect that the carrier’s liability should be that' of a warehouseman only for “loss, damage, etc., occurring after the expiration of the free time allowed by the tariffs lawfully on file.” It was stipulated by the parties that this free time was 48 hours. It is plaintiff’s contention that this 48-hour period of free time extended the responsibility of the defendant as carrier and that, if the goods reached Melrose Park on July 3rd, the following day was July 4th, which was a holiday and therefore should not be computed, and that the 48-hour free time allowance extended the time of delivery to July 6th. If this contention was correct, then the notice of loss was filed within six months after a reasonable time for delivery had elapsed and that this would be a compliance with the requirement for the filing of claim as provided in the bill of lading.

We are referred by counsel for the defendant to the case of Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209. It was there held that the provision in the bill of lading for claim of loss in case of failure to deliver must be made within six months after the lapse of a reasonable time for delivery is authorized by federal statute and is valid. In that case, the claim for loss was not made until the expiration of six months and 20 days after the shipment and it was held that eight days was a reasonable time for the delivery of the car to the consignee. The court in its opinion, however, stated that what was a reasonable time was dependent upon the circumstances of' each particular case and should be considered in the light of the circumstances and conditions surrounding the transaction. However, the court stated that the lapse of 20 days, after allowing eight days for transportation was too great to be considered a reasonable time. From a reading of the case, however, it would appear that the 48-hour free time was computed as part of the time allowed the carrier for delivery. In its opinion, the court said:

“It sufficiently appears that the time reasonably necessary for completion of delivery to the Bowman warehouse after the receipt of the shipment at petitioner’s yards would, in no event, exceed forty-eight hours.

“Not only is the estimate of the agent reasonable upon its face and in accordance with probability; and not only is it wholly unchallenged by other evidence or circumstances; but it is so completely corroborated by the undisputed facts in respect of this very shipment as to put it beyond the reach of a fair doubt. The movement of the car from the point of origin to the yards of petitioner in Richmond actually was made in six days; and if there be added full forty-eight hours thereafter for completing delivery to the Bowman warehouse, the testimony of the agent as to time stands verified by indubitable test. In the face of this record the conclusion of the court that it was still open for the jury to say that not eight days merely, but twenty days, fell short of being a reasonable time for delivery is so clearly erroneous as to cause the ruling of the court, in effect, to rest upon nothing more substantial than the power of a jury arbitrarily to disregard established facts.” Thus it appears that the court added the full 48 hours as part of the time allotted the carrier for delivery.

January 5, the day preceding that upon which notice of claim was given by the plaintiff, was Sunday. In the view we take of the matter, however, it is not necessary to consider the question as to whether or not this day should have been deducted as one of the days to be considered in the question of the computation of the time limitation provided for in the bill of lading.

We have examined the case of Chicago & Northwestern Ry. Co. v. Durham Co., 271 U. S. 251, and find that it dwelt solely with the question of garnishment. In that case consignee had given up his bill of lading and started to unload the goods. This unloading had started before the 48-hour free period had elapsed. It was held in that case that the question as to whether or not garnishment proceedings would lie against the carrier was dependent upon the law of the State of Michigan. In our opinion it is not applicable to the facts in this case. The Uniform Bill of Lading Act provides that the carrier shall not be compelled to deliver goods until the bill of lading is surrendered. In that case the bill of lading had been surrendered and the consignee had begun to unload from the side track.

The case of Michigan Cent. R. Co. v. Mark Owen & Co., 256 U. S. 427, cited in the briefs, holds that the liability of the carrier attaches after the goods have reached their destination, for a period of 48 hours, and that after that time the responsibility of the carrier is that of warehouseman only. This period of time, as was held in that case, is to cover any contingency which might arise after the property had reached its destination and notice of the arrival of the property had been given.

From our interpretation of the reasoning in the case of Chesapeake & Ohio Ry. Co. v. Martin, supra, it would appear that the court considered that the 48-hour free time period should be added to the time for delivery before computing the six-months’ period during which notice of loss should be given to the carrier.

From our examination of the cases, it is not clear that this precise question has been decided, but in view of the fact that a bill of lading should be interpreted most strongly against the carrier, and because of the fact that the trial'court has found the facts to be that the notice of loss was given by- the plaintiff within six months after a reasonable time for delivery had elapsed, and for the other reason's expressed in this opinion, the judgment of the municipal court is affirmed.

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


text:
    P. R Mockler, Appellant, v. David F. Thomas & Company et al., Appellees.
    Gen. No. 36,533.

      Opinion filed December 13, 1933.
    Alfred M. Loeser, for appellant; George Yellen, of counsel.
    Chapman & Cutler, for appellees; Dayton Ogden, of counsel.
   Mr. Justice Wilson

delivered the opinion of the , court.

Plaintiff, P. E. Moekler, brought this action against the defendant David F. Thomas & Company, and others, to recover the value of two principal notes in the amount of $500 each, issued by the Associated Utilities, Inc., an Arkansas corporation, and claimed by the plaintiff to have been sold to the plaintiff in violation of the Blue Sky Law, Cahill’s St. ch. 32, ¶ 254 et seq.

The cause originally appeared before the Honorable William E. Helander, one of the judges of the municipal court, on a motion to strike the statement of claim. The cause next appeared before the Honorable Francis B. Allegretti, one of the judges of the municipal court, on a motion pertaining to a settlement of the pleadings. The cause next appeared before the Honorable John J. Lupe, one of the judges of the municipal court, on a motion to settle pleadings. The cause later, on July 11th, appeared upon the calendar of the Honorable Eobert E. McMillan and was postponed until August 1, 1932. On August 1, 1932, apparently for the first time it appeared upon the trial call of the Honorable Edgar A. Jonas, one of the judges of the municipal court of Chicago. On that day plaintiff presented a petition for a change of venue signed by the petitioner, Moekler, stating that she feared she would not receive a fair trial if the cause was tried before his Honor Edgar A. Jonas, because she believed the judge to be prejudiced against her, the petitioner.

The petition further charged that the prejudice first came to the knowledge of the petitioner on August 1, 1932. This petition was duly verified. The plaintiff moved for a change of venue based upon the petition, which was refused and the parties were ordered to proceed with the trial on the following day, August 2,1932.

From the statement of the court, which was incorporated in the bill of exceptions, it appears that on August 1st, counsel for plaintiff requested a continuance, which was denied. No motion, however, to this effect appears in the record nor in the bill of exceptions other than as it appears from the statement of the court.

It is insisted on behalf of the defendant that the petition was evidently filed for a delay and that under the statute it became necessary to have served notice within a reasonable time before the trial of said cause. From the record, however, it appears that the cause had been on the trial call of Judge McMillan until August 1st, at which time it appeared upon the call of his Honor Edgar A. Jonas. If such was the fact, there was no opportunity of serving notice prior to the time of the filing of the petition which was August 1st, which was the day it was called for trial by his Honor, Judge Jonas of the municipal court of Chicago. The petition was filed at the earliest opportunity and was regular in form and properly verified. It was not the function of the trial court to pass upon the question as to whether or not the allegation of prejudice was true or not. Upon the filing of the petition it became his duty to transfer the cause to some other court for trial.

An examination of the cases cited on behalf of the defendant discloses the facts to be that the cause had been pending before the trial court for some time and that the party making the application had not made his application in apt time or upon reasonable notice. In the case at bar, however, it appears from the record that the application was made immediately and should have been granted.

The Supreme Court of this State in the case of People v. Scott, 326 Ill. 327, in its opinion, said:

“The legislature has prescribed the cases wherein a change of venue may be had in this State. Section 1 of our statute entitled ‘Venue’ provides that a change of venue in any civil suit or proceeding in law or -equity, including proceedings for the exercise of the right of eminent domain, may be had where the judge is a party to or interested in the suit, or his testimony is material to either party, or he is related to or shall have been counsel for either party to the controversy, or where either party shall fear that he will not receive a fair trial because the judge is prejudiced against him. The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge should think of presiding* in a case in which his good faith in'so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and should be construed so as not to defeat the right attempted to be attained therein. . . . The defendant’s petition for a change of venue was in proper form and duly verified as required by the statute. Under the statute no discretion is given to the court where a petition for a change of venue is made on account of the prejudice of the trial judge. (Walsh v. Ray, 38 Ill. 30; Knickerbocker Ins. Co. v. Tolman, 80 id. 106.) This court has never recognized the doctrine stated by the trial court in passing upon this motion, that public policy urgently demands that motions for a change of venue should be denied in cases where the petitions are unjustified. The decisions of this court have at all times been to the effect that the presiding judge has no right to pass judgment upon the truth of the facts stated in the petition or upon the question whether or not he is, in fact, prejudiced against the petitioner. The statute gives an absolute right to a change of venue to the petitioner when his petition is duly made and verified and filed in accordance with the statute. ’ ’

The case of Wendt v. City of Elgin, 264 Ill. App. 433, is very similar in fact to the case at bar. There a petition for a change of venue was filed May 20th, the day upon which a motion to dissolve an injunction came on for hearing. The petition for a change of venue was denied. The court in that case after reviewing a number of authorities bearing on the subject reached the conclusion that it was imperative that the trial court should grant the petition and had no discretion in the matter. To the same effect see Simpson v. Simpson, 165 Ill. App. 515, and Davies v. Davies, 247 Ill. App. 313. It was held in these two latter cases cited that the proceedings of the trial court, after the refusal to grant the petition for a change of venue, where the petition was regular in form and charged prejudice, were a nullity and that all subsequent proceedings therein were void. Such being the rule this court is precluded from considering the cause on its merits. In some jurisdictions it has been held that where it appears from the record that a fair trial was had, a court of review has the right to consider the facts and render a judgment thereon, even though the petition for a change of venue was denied, but such does not appear to be the rule in this State. It may be that the new Practice Act going into effect January 1, 1934, Cahill’s St. 1933, ch. 110, ¶ 129 et seq., may remedy this situation. It may be a fact as the trial court apparently believed that the petition was filed for delay. It appears to have been filed on the first day the case appeared for trial before the particular judge called upon to try the cause in the municipal court. It is apparent that it could not have been filed at any earlier date in so far as that particular judge was concerned. What was in the mind of the petitioner at the time of the filing of the petition is not for us to determine.

The judgment of the municipal court is, therefore, reversed and the cause remanded for a new trial with directions to grant the petition for a change of venue.

Judgment reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


text:
    John Greenebaum, Appellant, v. Jay L. McCormick et al., Appellees.
    Gen. No. 36,552.
    Opinion filed December 13, 1933.
    Ringer, Wilhartz & Hirsoh, for appellant; Arthur Wolf, of counsel.

      No appearance for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

Complainant, John Greenebaum, filed his bill in chancery to foreclose a first mortgage trust deed on certain premises situated in the City of Chicago and improved with a three-story brick apartment building containing three six-room apartments. One of these apartments was occupied by the mortgagors, Jay L. McCormick and his wife Cleo McCormick. The suit proceeded to foreclosure and a decree entered finding a deficiency in the sum of $3,000 against the defendants and in favor of the complainant. The receivership which had been created was continued after the confirmation of the sale under the foreclosure proceeding and the entry of the deficiency decree. After the confirmation of sale complainant filed a petition before the chancellor asking that the defendants be required to pay rent for the premises in said building occupied by them. The receiver also joined in this petition. The prayer of the petition was denied and the chancellor refused to require the defendants to file an answer to the petition. From this order the complainant appealed.

The trust deed contained all the usual provisions in regard to the mortgaging of the rents, the right to a' receiver and the right to possession of the premises after default.

The Supreme Court of this State in the case of Rohrer v. Deatherage, 336 Ill. 450, expressly holds that npon default in the condition of the mortgage, the mortgagee has the right to possession as against the mortgagor, as grantee, lessee, or any one claiming under him by any right. Under the facts in the case at bar the complainant was entitled to the possession of the premises, or, in lieu thereof, to rents from the occupants, the defendants in the foreclosure proceeding. We are of the opinion that the court should have protected the rights of the mortgagee, the complainant in this proceeding, either by placing the receiver in actual possession for the benefit of the complainant, or directing the defendants to pay rent for the premises.

We are asked to enter an order here requiring the McCormicks to pay $90 a month, which it is insisted is a fair rental for the premises in question. We are asked to direct this payment to be made from November 10, 1932. This court is not advised as to the conditions existing after the appeal and for that reason the only order entered will be and is one reversing the order of the superior court and remanding the cause for further proceedings in accordance with the views expressed in this opinion.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts, v. Citizens Trust and Savings Bank et al. In re Petition of Warren A. Johns, Trading as W. A. Johns Paper Company, Appellee. Appeal of Erwin J. Zuehls, Receiver of Citizens Trust and Savings Bank, and the United States Fidelity and Guaranty Company, Appellants.
    Gen. No. 36,577.

      Opinion filed December 13, 1933.
    Eugene P. Kealy and Edward J. Hess, for appellants ; Eugene P. Kealy and Edward J. Hess, of counsel.
    Otto Ade Arnston, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from an order of the superior court directing the United States Fidelity and Guaranty Company to pay petitioner, Warren A. Johns, doing business as W. A. Johns Paper Company, $4,703.10, with interest from November 20, 1931.

The claim is based on a judgment of the circuit court in favor of petitioner and against the Citizens Trust & Savings Bank for that amount for a. loss incurred by reason of the forging of the- name of petitioner to certain- checks which were .paid or cashed by the bank. At the time of the loss the bank was covered by a blanket policy of insurance, issued by the respondent, United States Fidelity and Guaranty Company, which defended the action in the circuit court through its own attorney.

Petitioner asks that its claim against the bank be allowed and the judgment paid out of the funds in the hands of the receiver or, in order to avoid circuity of action, that the insurance company pay the amount of the judgment directly to petitioner. Both the receiver and the insurance company have appealed from the order.

The receiver denies liability on the ground: (1) that he was not made a party to the proceeding in the circuit court; and (2) that by an order dated September 15,1930, all claims against the receiver should have been filed on or before December 17, 1930.

The answer to the first objection is obvious, viz.: that there was no receiver when suit was started, and the receiver could, if he cared, have intervened and defended on behalf of the bank. Moreover, the insurance company continued in the defense of the action to its final determination, evidently with the consent and knowledge of the receiver. Petitioner is not seeking to satisfy his judgment out of funds in the hands of the receiver, but against the policy, 53 O. J. 349, 23 R. C. L. p. 48. To the second objection it is sufficient to say that the court, which made the order limiting the time in which claims should be filed, could by the same power extend it or permit the filing of additional claims.

We are in fact at a loss to understand the reason for the position taken by the receiver. He is an officer of the court and ordinarily is supposed to carry out the orders of the chancellor and not oppose them. Again it is to his interest as well as that of the creditors to have this claim satisfied out of the fund created by the policy and not out of the general assets. In the latter case the claims of other creditors would be decreased by just so much. If this claim should be paid out of this special fund, then the amount payable to other creditors would remain the same. Those other creditors have no interest in any amount payable out of the policy to satisfy this judgment, nor would such an? order amount to giving a preference to petitioner as a creditor as urged by respondent, the insurance company. _

_ No point is made that the respondent United States Fidelity and Guaranty Company is not rightfully brought into this proceeding. It is in fact a debtor to the bank to the extent, if any, under its liability as shown by its policy of insurance. The extent of this liability has been established by the judgment in the circuit court from which no appeal was perfected.

But one of the grounds urged for reversal appears to this court to merit consideration, viz.: that the policy is one of indemnity and not to pay for liability, and that it does not appear that the bank has suffered loss.

The policy does not contain what is known as a “no action clause” which is to the effect that the insurer will pay only for loss sustained and paid out by the insured.

The provision in the policy involved in this proceeding is to the effect that the insurer undertakes to indemnify and “hold harmless” the insured. The company attempted to hold the bank harmless when it undertook to and did defend the action. It is now in a court of equity asked to complete performance and pay the judgment in conformity with the terms of its policy. The receiver should be in the position of demanding that he be clothed with all the rights of the bank and requiring the insurance company to hold him, as receiver, harmless against the judgment. He should be protecting the rights of creditors and not those of debtors. The chancellor by his order has avoided the useless waste of time by directing payment to the receiver and by him to the petitioner. This is permissible in equity. Beacon Lamp Co. v. Travelers’ Ins. Co., 61 N. J. Eq. 59.

Under the theory of marshaling assets, he has directed this particular creditor to be paid out of the particular fund against which his claim, and his only is collectible. Beckman v. Alberts, 346 Ill. 74; Boone v. Clark, 129 Ill. 466.

We are of the opinion that the entry of the judgment against the bank was such as to create a liability against the bank and to at once impair its financial position and therefore become a loss within the meaning of the clause to hold harmless. So long as the judgment remained a lien the insurer was not performing its obligation under this clause of the policy. Under the terms of the policy the insurance company agreed to indemnify the bank and hold it harmless against loss and when the judgment was entered the loss or liability provided against in the policy was sustained. As stated in the case of Ravenswood Hospital v. Maryland Casualty Co., 280 Ill. 103:

“When Mrs. Appel was injured the liability was incurred and when the court entered judgment against it the loss on account of such liability was sustained. (Stephens v. Pennsylvania Casualty Co., 135 Mich. 189.) True, the loss had not been paid, but it had been definitely ascertained and fixed, and if no appeal had been taken appellee would have been required to pay it at that time. ’ ’ Policies of insurance are interpreted by the courts most favorably to the beneficiaries.

The right of the petitioner is fortified in this case because it is a proceeding in equity and, as has been stated, in order to avoid circuity of action the court will direct that to be done which should have been done. Chancery will decree its performance directly in order to do equity and without requiring the doing of a useless thing, such as directing it to be paid to a third person for the benefit of one who is already in court and before the chancellor. The equities of the case amply sustain the decree of the chancellor. The rule at law as hereinbefore announced will be followed in a court of equity, as was done here.

For the reasons stated in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    Samuel Heisler, Plaintiff in Error, v. Gordon C. Kauffman, Trading as Kauffman’s Auto Livery, Defendant in Error.
    Gen. No. 8,642.
    Opinion filed September 20, 1933.
    Rehearing denied and opinion modified December 26, 1933.
    Frank M. Ryan and Shelby E. Hood, for plaintiff in error.

      Hyer & Gill and Knight & Lupton, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Samuel Heisler, plaintiff in error, brought suit in the circuit court of Winnebago county against Gordon Kauffman, doing business as Kauffman’s Auto Livery. The declaration consists of one count and charges that the defendant in error operated an auto livery and rented motor cars to plaintiff’s minor son Robert B. Heisler and continued to do so after notice from said Samuel Heisler to the defendant not to rent motor cars to his said son. The declaration further alleges that contrary to such notice from the father and in disregard thereof, the said defendant did, on or about the eighth day of July, 1929, negligently rent and place in the hands and control of the minor son a certain automobile and that while said son was driving said motor car upon a public highway the same overturned and that the son sustained serious injury thereby. Samuel Heisler, the father, claims damages in the sum of $10,000 for the loss of services of the son and money by him expended for medical treatment for the son.

The case was tried before a jury and a verdict rendered in favor of the plaintiff for the sum of $2,265.15. The defendant entered a motion for a new trial which was overruled. He then made a motion in arrest of judgment, which motion was sustained, and the court ordered that said plaintiff take nothing and that the defendant have judgment against the plaintiff non obstante veredicto. From this judgment the plaintiff below brings the case to this court on a writ of error.

It was urged by the defendant in error that the court properly set aside the verdict of the jury for the reason that the declaration does not state a good cause of action, and concedes if the declaration does state a good cause of action, then it was error for the trial court to set -aside the verdict. An examination of the declaration discloses that nowhere does it allege that the plaintiff’s son was in the exercise of ordinary care for his own safety at the time he was driving the car; nor does the declaration allege that the plaintiff’s son was not a skilful driver or that the defendant had knowledge that the plaintiff’s son was not a skilful driver, but the count is based solely on the negligence of the defendant in error in renting the automobiles to plaintiff’s son.

In the case of Callies v. The Reliance Laundry Co., 188 Wis. 376, 206 N. W. 198, the court in. passing upon a case very similar to the one we have for consideration used the following language: “Our attention is called to cases in our own court and in other courts in which relations different from that of husband and wife or parent and child have existed, and in which it has been held that the negligence of the one has not been imputed to that of the other. Counsel frankly concedes that indirectly, or at least by implication, our court has consistently held that where the relation of parent and child exists the parent cannot recover for loss of services, if the minor has been found guilty of contributory negligence.

“When a parent sues to recover for the loss of service of his child who has been injured by the concurrent negligence of the child and a third person, the bar of the child’s contributory negligence is not due to the application of the doctrine of imputed negligence. The parent is by law required to support and care for his child. In return for the performance of such obligation, the law gives to the parent the right to a part of the child’s cause of action in case he is negligently injured by another. So also since the husband is required to support his wife the law likewise gives him a part of the wife’s cause of action in case she is negligently injured by another. This splitting up of the cause of action resulting in some of the damages being given the child and some to the parent, or some to the wife and some to the husband, is due solely to the parental and marital relations existing between the parties. A part of the damages are given the parent or husband as the case may be because of the obligations he is under to the child or wife. But for such relations and obligations the entire damages would belong to the child or wife; for when an adult, not under coverture or disability, is injured by the negligence of another, and he is free from contributory negligence, he can recover (1) for pain and suffering, and disfigurement, if any, (2) for loss of permanent or temporary earning capacity, and (3) for reasonable medical and nursing expenses. If he is guilty of contributory negligence he cannot recover at all. But when a minor child is injured by the negligence of another and he is free from contributory negligence, he can recover (1) for pain and suffering and disfigurement, if any, and (2) for loss of temporary or permanent earning capacity after majority. And in such case, the parent can recover (1) for loss of the minor’s earning capacity during minority and (2) for reasonable medical and nursing expenses during minority. If the minor is guilty of contributory negligence, neither minor nor parent can recover, for their rights spring out of the same transaction — the same cause of action. The parent takes by operation of law a part of the child’s cause of action, and he must take it as the child leaves it. For the reasons stated growing out of the relation, the law assigns to the parent a part of the cause of action, and he takes it subject to any defenses that could be urged against the child in whom the whole cause of action, but for the law, would vest.”

Other cases that support this ruling are: Wueppesahl v. Connecticut Co., 87 Conn. 710, 89 Atl. 166; Benton v. Chicago, R. I. & P. R. Co., 55 Iowa 496; Vorrath v. Burke, 63 N. J. L. 188, 42 Atl. 838.

It is our opinion that where the father of a child who has been injured is suing for loss of services of the child and money expended for medical attention in curing him of injuries he sustained, caused by the negligence of a third party, the negligence of the child would bar an action for a recovery. In this case it was incumbent upon the plaintiff in error to allege in Ms declaration and prove that at the time his son was injured he was in the exercise of ordinary care for Ms own safety in the operation of the car at the time he was injured. This declaration does not charge such facts and is defective and cannot support a verdict based on the same.

The appellant has cited cases that support Ms contention that it is erroneous for the court to enter a judgment, non obstante veredicto, in favor of the defendant in a suit. This is the general rule followed by the courts. In this case the defendant did not ask for a judgment non obstante veredicto but the court sustained the defendant’s motion in arrest of judgment. In the order signed by the court in sustaining this motion, he used the words “non obstante veredicto,” but the use of such words was not necessary for a proper disposition of defendant’s motion in arrest of judgment. In sustaimng the motion in arrest of judgment, the court would have to set aside the verdict in favor of the plaintiff and enter judgment in favor of the defendant. The trial court properly sustained the motion in arrest of judgment and in entering judgment in favor of the defendant. The judgment of the circuit court of Winnebago county is affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. Joliet Trust and Savings Bank (J. M. Killpack, as Receiver, Etc., Appellant). J. E. Morrison, Receiver, Appellee.
    Gen. No. 8,648.
    Opinion filed December 6, 1933.
    Brown, Hay & Stephens, for appellant; Robert A. Stephens, Jr., of counsel.
    William A. Murphy, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Will county, denying appellant’s claim for preference in the, distribution of the assets of the defunct Joliet Trust & Savings Bank. The claim in question is based upon a draft in the sum of $8,583.34 drawn by .the said Joliet Trust & Savings Bank on the Federal Reserve Bank of Chicago'. When the draft was drawn by the aforesaid Trust & Savings Bank, the party procuring said draft had on deposit in said bank a sum of money in excess of the amount of the draft. Certificates of deposit had issued by the Trust & Savings Bank for this deposit. These certificates were properly surrendered at the time of the issuance of the aforesaid draft. The draft was drawn on January 20, 1932, and made payable to the order of W. E. Lancaster. It was promptly deposited, and in the process of clearance reached the First National Bank of Chicago, on January 25, 1932. This bank presented the draft in due course of business, to the Federal Reserve Bank of Chicago. The Joliet Trust & Savings Bank in the jneantime, and on January 23, 1932, had suspended business and subsequently appellee herein, J. E. Morrison, was appointed receiver.

The facts in this case are not in dispute and but a single question of law presents itself to this court. The question is whether the payee of a draft drawn by one bank on another is entitled to preference over general creditors of the issuing bank, where the issuing bank goes into receivership before the draft is paid, the draft having been issued in return for the surrender of certificates of deposit of the issuing bank, and when the claimant for preference is a legal holder of such draft, other than the person to whom the same issued.

Appellee urges two reasons to sustain the ruling of the lower court. First, that pars. 25-39 inclusive, ch. 16a, Cahill’s St. 1931, do not apply to this transaction; and second, that appellant is not entitled to preference under the common law. The claim of appellant for a preference rests upon the provisions as contained in sec. 13 of the above Act, Cahill’s St. 1931, ch. 16a, ¶ 37. The second paragraph of said section reads as follows:

“When a drawee or payor bank has presented to it for payment an item or items drawn upon or payable by or at such bank and at the time has on deposit to the credit of the maker or drawer an amount equal to such item or items and such drawee or payor shall fail or close for business as above, after having charged such item or items to the account of the maker or drawer thereof or otherwise discharged his liability thereon but without such item or items having been paid or settled for by the drawee or payor either in money or by an unconditional credit given on its books or on the books of any other bank, which has been requested or accepted so as to constitute such drawee or payor or other bank debtor therefor, the assets of such drawee or payor shall be impressed with a trust in favor of the owner or owners of such item or items for the amount thereof, or for the balance payable upon a number of items which have been exchanged, and such owner or owners shall be entitled to a preferred claim upon such assets, irrespective of whether the fund representing such item or items can be traced and identified as part of such assets or has been intermingled with or converted into other assets of such failed bank.”

It will be observed by the above section that when a drawee or payor bank has presented to it for payment an item or items drawn upon or payable by or at such bank, and at the time has on deposit to the credit of the maker or drawer an amount equal to such item or items, and such drawee or payor shall fail or close for business, after having charged such item or items to the account of the maker or drawer thereof, or otherwise discharged its liability thereon, but wdthout such item or items having been paid or settled for by the drawee or payor, that in such case, the assets of such drawee or payor shall be impressed with a trust in favor of the owner or owners of such item or items for the amount thereof. When the draft in this case was issued by the Joliet Trust & Savings Bank (the drawee and payor), more than sufficient funds were on deposit with said bank to equal the amount of the draft, and the amount of the draft was charged against such person’s account with the said Trust & Savings Bank, and its obligation to such person was at that time discharged to that extent, but the draft was not paid in money. By thus charging the account with the amount of said draft, such sum was to all effect and purposes taken from this account and held by the Joliet Trust & Savings Bank, in trust for the legal holder of such draft, to be paid to such holder when the same was presented for payment.

Appellant herein duly filed its claim with the receiver of the Joliet Trust & Savings Bank for a preferred lien or claim upon the assets of said bank because of such draft, claiming thereby a preference over general creditors in the distribution of such assets. We believe that such a procedure constituted due presentment for payment under the provisions of said sec. 13 of the above act, Cahill’s St. 1931, ch. 16a, ¶ 37. This was the only method that was open to the holder of the draft, because before the same again came into his possession, the aforesaid Joliet Trust & Savings Bank had closed, and the holder took the only means available to him under the circumstances for the payment of such draft.

The trial court erred in denying appellant’s claim for a preference in the distribution of the assets of the Joliet Trust & Savings Bank. Since the filing of this appeal the parties hereto by their attorneys have filed their written stipulation to the effect that appellee has paid to appellant the sum of $858.34 upon said claim, which has reduced the total of such claim to the sum of $7,725.

The decree of the circuit court of Will county is reversed and the cause is remanded to that court, with directions to enter a decree herein, granting to the appellant a preference upon its claim, subject to a deduction of $858.34.

jReversed and remanded with directions.


author: Mr. Presiding Justice Edwards

text:
    J. M. Pruett and Albert G. Pruett, Defendants in Error, v. C. D. Midkiff et al., Plaintiff in Error.
    Opinion filed December 26, 1933.
    James B. Lewis (deceased), and Finney & White-side, for plaintiff in error.
    Miley & Combe, for defendants in error.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

This is a suit filed by J. M. Pruett and F. M. Pruett for the strict foreclosure of two mortgages upon a certain business block in the City of Harrisburg, Saline county.

The averments of the bill disclose that on July 1, 1925, Mary B. Midkiff and C. D. Midkiff, her husband, executed a mortgage upon the premises in question, in favor of the International Life Insurance Company, to secure a series of promissory notes aggregating $25,000, which notes and mortgage, by assignment, became the property of the complainants; that on August 16, 1928, said Mary B. Midkiff departed this life, and that the premises, which had belonged to her, became the property of her said husband; that the latter, on September 26, 1931, mortgaged the same to the First Trust & Savings Bank of Harrisburg, to secure an indebtedness of $5,000, as evidenced by his promissory note of even date, to the order of said bank, and that the last mentioned mortgage was duly assigned to the complainants by the bank.

The bill further sets forth that the mortgages were in default as to certain items; that the premises were of less value than the mortgage indebtedness; that C. D. Midkiff was insolvent, as was the estate of Mary B. Midkiff; that complainants were willing to take the premises in satisfaction of their debt, and praying for a strict foreclosure.

C. D. Midkiff answered the bill, denying, generally, its allegations; issues having been joined, the cause was referred to the master to take and report proofs and findings. After a hearing before the latter, he reported, finding in favor of complainants, and recommending a decree in accordance with the prayer of the bill. Objections to the report being overruled, the exceptions thereto were heard by the chancellor, who overruled same, approved the master’s report, and entered a decree for strict foreclosure of the mortgages, to reverse which decree, C. D. Midkiff has sued out this writ of error.

Pending the litigation, complainant, F. M. Pruett, died. This fact being suggested of record, his heirs, J. M. Pruett and Albert G-. Pruett, to whom his estate passed by law, were substituted in his stead as parties to the cause.

There was a stipulation of record by the parties, to the effect that the objections and exceptions to the evidence heard before the master would be reserved, and same might be made on the hearing before the chancellor, to the same extent and purpose as if made at the hearing before the master. The amount found due from the defendant C. D. Midkiff, to the complainants, on account of such mortgage indebtedness, was $27,335.23.

It is contended, as ground for reversal, that there is no competent evidence showing said C. D. Midkiff to be insolvent, and that same must be proven in order to warrant a decree of strict foreclosure.

The law which governs the strict foreclosure of mortgages, in Illinois, is tersely stated in Farrell v. Parlier, 50 Ill. 274, where the court, in declaring the rule, said: '“In our State, and in view of our statute, it is only in strong cases, which form exceptions, that there should be decreed strict foreclosure, or a sale without redemption. It may be, in rare cases, when it appears the property is of less value than the debt for which it was mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of his debt, that a strict foreclosure may be allowed.”

The rule, so declared, has been since adhered to, and is the settled law of the State. Carpenter v. Plagge, 192 Ill. 82; Boyer v. Boyer, 89 Ill. 447; Sheldon v. Patterson, 55 Ill. 507.

As an essential of complainants’ case, it was necessary to aver and prove that the mortgagor was insolvent, and being required to prove such element, it was obligatory upon complainants, who had the affirmative of the issue, to establish same by the greater weight of the evidence. Singer v. Jennison, 60 Ill. 443; Proudfoot v. Wightman, 78 Ill. 553.

Upon the question whether the mortgagor was insolvent, but little testimony was offered. It appears that the only proof bearing upon this proposition was that of complainant J. M. Pruett, and defendant C. D. Midldff. Complainants below deemed the original abstract filed in this court insufficient, and supplied the defects, as they conceived them, with a supplemental abstract of the record, on page 3 of which appears the testimony of Mr. Pruett, relative to this subject, as follows: “I don’t know of any other property Dr. Midldff has, out of which we could make any part of this debt. He has signed all his property and personal property away. I have been acquainted with Dr. Midldff since about 1908. I think I am acquainted with his financial condition. He is insolvent.”

On page 10 of the supplemental abstract, in the cross-examination of C. D. Midldff, he is shown to have testified: “Taxes on my other property have become delinquent. I suppose they were sold for taxes.”

Defendant insists that the testimony of Mr. Pruett, relative to his insolvency, was incompetent, and that such fact has not been established by the evidence. It will be observed that the witness did not testify to any fact or circumstance bearing upon such question, before he expressed his opinion thereon. Such opinion was, necessarily, his conclusion, and predicated upon nothing, except his further statement that C. D. Midkiff had conveyed away all his property, which was also a conclusion, and based upon no stated facts from which such a deduction might be drawn; and further, that he thought he was acquainted with his financial condition. No circumstance was mentioned from which it might be inferred that he was familiar with, or knew, his financial state, hence this was also his conclusion.

It thus appears that on this record the testimony relating to Dr. Midkiff’s insolvency was the conclusion of Mr. Pruett, based upon two other conclusions. That such testimony is incompetent, and without any probative force, is sustained by the authorities, which hold that solvency or insolvency cannot be established by' the mere opinion or conclusion of a witness. The witness should first detail the facts and circumstances, within his knowledge, which bear upon the financial condition of the party, so that the court may see whether or not the items, as stated, have relevancy to the question of solvency, before he may express an opinion thereon. Martin v. Hertz, 224 Ill. 84; Freeman v. State, 108 Miss. 818, 67 So. 460; State v. Myers, 54 Kan. 206, 38 Pac. 296; State v. Stevens, 16 S. D. 309, 92 N. W. 420; Wolfson v. Allen Bros. Co., 120 Iowa 455, 94 N. W. 910.

The stipulation of the parties reserved to each the right' to object to any testimony offered before the master, upon the further hearings before the court; hence they can properly urge the objections now. Such testimony was improper, and should not have been considered by the chancellor. Without it there is no evidence bearing upon the insolvency of C. D. Midkiff.

Moreover, it appears on page 10 of the supplemental abstract that during the cross-examination of the latter, he testified: “Taxes on my other property have become delinquent. I suppose they were- sold for taxes. ’ ’ Here is evidence that, instead of being devoid of assets, except the mortgaged premises, he had other holdings. It is manifest that if he had allowed taxes on his other property to become delinquent, he must have been owner of, or at least had some interest in, such possessions, though as to their location, character or value, the record is silent.

Mr. Pruett further testified that he had examined the records of Saline county, and did not find any judgments against Dr. Midkiff.

Insolvency signifies the financial condition of a person whose entire estate, if converted into money without unreasonable haste or sacrifice, would not suffice to discharge his debts. 32 Corpus Juris 805; Chicago & S. E. Ry. Co. v. Kenney, 159 Ind. 72, 62 N. E. 26; Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, at page 426.

The legal presumption is that a person is solvent, and whoever asserts the fact of insolvency assumes the burden of proving it. 7 Ency. of Ev., 482; State Bank of Clinton v. Barnett, 250 Ill. 312, 319.

Here the burden rested upon the complainants, who charged Dr. Midkiff with being insolvent, to prove same. As we have seen, they offered .no competent proof of the fact. The conclusions of Mr. Pruett were not proper evidence, had no probative force, and should be disregarded; without which, there was no evidence upon which to base a finding that C. D. Midkiff was insolvent. Upon this record, we are constrained to hold that complainants have failed to establish, by the greater weight of the testimony, the fact of the mortgagor’s insolvency, for which reason, a decree of strict foreclosure was not warranted.

The evidence establishes that complainants are entitled to the ordinary foreclosure, by sale of the mortgaged premises, with the statutory right of redemption. In fact, we do not understand that the defendant contends to the contrary. The proof, in our opinion, does not justify a decree.for strict foreclosure, for which reason, the decree is reversed and the cause is remanded.

Beversed and remanded.


text:
    Edgar H. Little, Jr., Appellee, v. Chicago National Life Insurance Company et al., Appellants.
    Opinion filed December 26, 1933.
    E. R. Elliott and James K. Moran, for appellants.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee, Edgar H. Little, Jr., filed a creditor’s bill in the circuit court of St. Clair county against the appellants, Chicago National Life Insurance Company and Pacific States Life Insurance Company, together with the American Life Re-Insurance Company, by which he sought to subject assets of the Chicago National Life Insurance Company, which he charged had wrongfully been turned over to, or otherwise acquired, by Pacific States Life Insurance Company, to the payment of two judgments which he had previously obtained against said former named company, and which, with interest and costs, aggregated in the neighborhood of $23,000.

The Chicago National Life Insurance Company did not answer the bill. However, the Pacific States Life Insurance Company duly made answer, whereupon appellee filed his petition for the appointment of a receiver of the assets of the Chicago National Life Insurance Company. After notice, a hearing was had upon the bill, answer and petition, no testimony being taken. The chancellor entered an order appointing Elmer C. Weihl as such receiver, and waiving the complainant’s bond. From this order appellants have perfected this appeal, and assert that the appointment, as thus made, was unwarranted and erroneous.

The abstract filed by appellants, in relation to the order appointing the receiver, shows: “It appearing that after due notice and full hearing, sufficient cause exists for the appointment of a receiver, and that such receiver shall be appointed forthwith, without requiring the complainant herein to give bond, and that Elmer C. Weihl is a suitable person, it is ordered . . . ”, etc.

Appellee states that the abstract, in this respect, is incorrect and incomplete, and refers this court to the record to ascertain the facts relative thereto. It is the rule that a party, who considers his adversary’s abstract of the record insufficient, has the right, and it is his duty, to file a supplemental abstract, supplying the deficiency, and not seek by complaints to impose upon the court the burden of reading the whole record. Hand v. Waddell, 167 Ill. 402. No supplement to the abstract having been filed, we shall, within the rule as stated, assume the abstract is correct, and consider it in that light.

Cahill’s St. ch. 22, ¶ 55 (sec. 54, ch. 22, Smith-Hurd R. S. 1933), which governs the appointment of receivers, requires that before such appointment is made, the complainant shall give bond to the adverse party, conditioned to pay all damages sustained as a consequence, should the receiver’s appointment be subsequently revoked or set aside; the section further stating : ‘ ‘ Provided, that bond need not be required, when for good cause shown, and upon' notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.”

It thus appears that before the court may lawfully waive the complainant’s bond, there must- be a full hearing, after notice, and the chancellor must be of opinion that because of good cause shown, the receiver ought to be appointed without such bond.

This section of the statute has been repeatedly construed by the courts, and the uniform holding has been that the order which excuses the giving of such bond must affirmatively include the various elements which the statute requires, to justify such waiver.

In Sherman Park State Bank v. Loop Ofice Bldg. Corp., 238 Ill. App. 450, the order complained of set forth: “It is further ordered, upon good and suffi'cient showing, that the bond of the complainant herein be, and the same is, hereby waived.” The court held the order objectionable; first, in that it did not show affirmatively that the court was of opinion that the receiver should be appointed without giving bond; secondly, in that it was not enough to state that the bond was waived upon good and sufficient showing, but that the facts must be set out which would excuse the giving of the bond; and thirdly, the specific reason for appointing a receiver, without bond, must be recited in the order. ;To the same purport are Chicago Title & Trust Co. v. Bickley, 255 Ill. App. 45, 49; Davis v. Blair, 252 Ill. App. 417, 422.

The order in the instant case is worded very similarly to that in the Sherman Park State Bank case, supra, and, it will be observed, does not contain any of the essentials, enumerated in that opinion, as are necessary to constitute a valid order. There is no recital that the court is of opinion that the appointment should be made without bond, nor can it be inferred that the court must have been of such opinion, from the fact that it arrived at such conclusion. It must affirmatively state that the court was of such opinion. Chicago Title & Trust Co. v. Bickley, supra.

Further, within the rule of the Sherman Park State Bank decision, while it recites that “sufficient cause exists, ’ ’ it does not proceed to set forth what the sufficient cause was, nor state any facts from which it might be deduced that such good cause was shown as would excuse the giving of a bond. It also utterly fails to recite the specific reason which moved the chancellor to waive the bond, as required by the rule in the case last cited.

The occasion for the rule requiring such statements of fact, and the reason for making the appointment without bond, to be recited in the order, is obvious. While such an order is interlocutory, it is one from which an appeal may be taken. Cahill’s St. 1933, ch. 110, ¶ 122 (App’x); sec. 122, ch. 110, Smith-Hurd R. S. 1933. It is therefore important that the order state the “good cause shown, ’ ’ which would warrant the court in waiving bond. The court being required to find “good cause shown, ’ ’ in order to base its opinion that a bond should be waived, and its action in so doing being the subject of review, the Appellate Court must know the reason which moved the chancellor in excusing the bond, in order to determine whether or not such reason was a “good cause shown,” as required by the statute. Hence the reason, and the facts upon which it is based, must be set out in the order, otherwise it could not be known what the trial court found to be the good cause which impelled him to the opinion that the bond be waived.

As said in Chicago Title & Trust Co. v. Bickley, supra, at page 48: “No receiver should be appointed unless and until the statutory requirements have been strictly complied with.” In the present case there was not compliance with several of the prerequisites enumerated by the statute, to justify excusing the bond.

The order was insufficient, and improperly entered.

Order reversed.


text:
    Joe Ingram, Appellee, v. Hammar Brothers White Lead Company, Appellant.

      Opinion filed December 26, 1933.
    Kevin Kane and Frank A. Wesley, for appellant.
    Frank M. Summers, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Joe Ingrain, appellee, in his suit against Hammar Brothers White Lead Company, a corporation, appellant, alleged in his declaration that he had, prior to June 1,1925, been in the employ of appellant, and that while so engaged he became afflicted with lead poisoning, which malady arose out of and in the course of such employment; in consequence of which he was entitled to seek remuneration under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq.; that he entered into an agreement with appellant, whereby the latter was to pay him the sum of $8 weekly during the remainder of his life, and he was to relinquish any rights which he might have, under the statutes, to compensation; that appellant made such payments until June 30, 1931, after which it refused to further carry out the agreement or make payments in accordance with its terms; and that the accrued and unpaid amount due thereunder was $720.

To the declaration, as finally amended, there was pleaded the general issue. There was a trial by jury, and a verdict and judgment for $720, to reverse which this appeal is prosecuted.

Appellant contends that the declaration is not sufficient to sustain the judgment. It, however, appears that such ground is not named in the assignment of errors as a reason for reversal. It is the settled rule that a contention not covered by any assignment of error, is not open for review upon appeal. Anglo-Wyoming Oil Fields v. Miller, 216 Ill. 272; Thayer v. Peck, 93 Ill. 357. The alleged error, not being among those enumerated in the assignment, cannot be considered by this court.

It is next urged that appellee has failed to prove that he was disabled by lead poisoning, or that the disease arose out of and in the course of his employment.

The proof shows that he worked for appellant from 1904 until June, 1925, when he was obliged to discontinue because of illness. He testified that he handled white lead; that is, kept the wet lead and dry lead apart, and kept the trash out of it; that during his employment he became leaded, felt cramps in his stomach, sickness and vomited; that Dr. Brennan, the regular company doctor of appellant, treated him; that during the winter of 1925 he became ill; that it went on until the summer, after which he did not go back to work; that Mr. Stegman, superintendent of appellant, sent for him and stated that the company would pay him $8 per week the rest of his life; that he had intended to sue appellant for his disability, but accepted its offer and forbore to bring any legal proceedings; that it paid him each week until June 30, 1931.

Dr. Brennan, called by appellee, testified that on various dates between 1921 and 1924, he treated appellee for lead poisoning, and from January 26 to. February 27, 1925, he again treated him for the same disorder; that he did so upon subjective symptoms. He, however, stated that among the symptoms of lead poisoning were those appellee testified he was afflicted with during such time. The doctor, later called by appellant, stated that in September, 1925, several months after appellee had ceased work, and the agreement in question had been entered into, he examined the latter at the hospital, by blood test and otherwise, and found no indication of lead poisoning, but did discover syphilitic infection.

It seems strange that the doctor should have treated appellee at intervals over a long period of time for lead poisoning, if he were not satisfied and convinced that he was so afflicted. He further testified that he communicated the fact of discovering the syphilitic condition to the officials of appellant; yet they continued to make the payments for nearly six years, after being apprised of such disorder.

That the appellant, paying to appellee a weekly pension because of lead poisoning, occasioned by his employment in their service, should for several years have continued to make such payments, after being advised to the effect that he was suffering from a venereal disorder, instead of illness as a result of being leaded, seems improbable. We think the jury were warranted, from the proof, in finding that appellee had lead poisoning, growing out of and in the course of his employment, as a servant of appellant, and that, had he presented a claim before the industrial commission for same, he would have been entitled to an award therefor; hence there was a valid and sufficient consideration for the agreement. Makarewicz v. Hoyt Metal Co., 262 Ill. App. 327.

Appellant complains of certain rulings of the court in permitting appellee to testify to his conclusions as to being poisoned by lead. It appears that the latter testified, without objection on the part of appellant, in response to the question: “Ques.: “During your employment with the Hammar Brothers White Lead Company, did you ever become leaded?” Ans.: “Yes.” Ques.: “Just state to the court and jury how you felt.” Ans.: “I was cramping in my stomach, sickness and I vomited.” Ques.: “Were you treated by a doctor?’’ Ans.: “Yes.” Ques.: “What doctor?” Ans.: “Dr. Brennan, the company doctor.” Ques.: “Calling your attention to the year 1925, do you remember being sick in that year?” Ans.: “Yes.” Ques.: “How did you feel at that time?” Ans.: “The same thing, the effect of lead.”

To which last question and answer, appellant objected as being a conclusion. The court, however, ruled that it might stand. We think the answer, or at least the latter part of it, should have been stricken as being the conclusion of the witness. In the state of the record, however, the ruling was harmless. As before observed, appellee had just previously testified that he had been leaded while in the employ of appellant, and the latter did not object to the question or answer; nor did it move to strike the answer. Where improper evidence is taken without objection, it is to be considered and given its natural probative effect the same as if, in law, it was admissible. Ascher Bros. Amusement Enterprises v. Industrial Commission, 311 Ill. 258, 261. Having failed to object when the question was asked and answer made, and not having moved to strike the answer, appellant cannot now urge an objection which might have been obviated, if made at the trial. Bartlow v. Chicago, B. & Q. B. Co., 243 Ill. 332, 334.

The latter answer, to which objection was made, was but a reiteration of. the answer to a former question, to which appellant did not object; hence its only effect was to again bring out what was already before the jury without objection. Later, appellee was asked: Ques.: “State how you felt.” Ans.: “I had cramps in my stomach; I had vomiting; it makes you sick any time any one is poisoned.” To which appellant objected. It does not appear, however, that the court ruled upon the objection; while still later, appellee, in response to the question: ‘ Try and tell us how you vomited,” answered: “I was sick from being leaded; I had severe pains.” Appellant did not object to the answer, nor move to strike same.

A party who fails to object to the admission of testimony waives objections to the subsequent admission of the same or similar evidence. New Amsterdam Casualty Co. v. Saloman, 165 Ill. App. 264; Andrews v. Western Asphalt Paving Corp., 193 Iowa 1047, 188 N. W. 900; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657. Appellant was not harmed by the ruling.

Lastly, it is contended that there was no proof of authority on the part of Stegman to bind appellant, by the agreement in question. It is undisputed that he was superintendent of the company; also, it is not denied that appellant, for nearly six years, made its weekly payments thereunder. Hence, regardless of whether or not he did have such authority, appellant, by its conduct and continued payments, ratified the contract which its superintendent entered into with appellee, and is bound by the terms thereof. St. Louis & Memphis Packet Co. v. Parker, 59 Ill. 23.

The jury made its award of $720, which, at $8 per week, would represent 90 weeks. The payments ceased June 30, 1931. Suit was started March 2, 1933, 87 weeks later. The verdict, therefore, could not exceed $696.

If appellee will, within 15 days, file a remittitur in the office of the clerk of this court, in the sum of $24, judgment will be affirmed for $696; otherwise reversed and remanded.

Affirmed upon remittitur; otherwise reversed and remanded.


text:
    First National Bank of New Paris, Ohio, Appellant, v. Minnie C. Royer, Appellee.
    Opinion filed December 26, 1933.
    Parker & Eagleton, for appellant.
    Jones & Lowe, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On April 19, 1931, appellee, Minnie 0. Boyer, and Harvey H. Boyer executed and delivered to appellant, First National Bank of New Paris, Ohio, their judgment note, due on demand, for the sum of $650, with seven per cent interest. The warrant of attorney authorized a confession of judgment, after the obligation became due, and the release of all errors, with waiver of all rights of appeal.

Oh January 3, 1933, in vacation, appellant caused the note to be placed in judgment in the circuit court of Crawford county. The papers filed consisted of the declaration, note, warrant of attorney and proof of execution, together with the cognovit, which released all errors incident to the entry of the judgment.

The declaration properly described the note, except as to date, alleging that it was executed on August 19, 1931, instead of April 19, 1931.

Thereafter appellee filed her petition to vacate the judgment as invalid, averring, among other reasons, that the note was not due at the date of bringing suit; that the record failed to show any demand upon appellee for payment, before entering judgment, and hence the action was prematurely brought; that the declaration set forth that the note was executed on August 19, 1931, and that the note filed in support was dated April 19, 1931; that same constituted a fatal variance, in consequence of which the judgment was void.

Appellant demurred to the petition, which being overruled, it then filed its answer denying that judgment was prematurely taken; averring that the note was due on the date it was made; that no further demand was necessary, and that the declaration expressly alleged that appellee had failed and refused to make payment, though often requested so to do. Also, that the variance, as to date of the note’s execution, as set forth in the declaration, and the date upon the note filed, is immaterial, and is an error which was waived by the power of attorney, expressly authorizing a release of all errors in the entry of judgment.

Appellee’s demurrer to the answer was sustained. Appellant refused to further plead. Order was entered, vacating the confessed judgment of January 3, 1933, and this appeal is for the review of such order.

Appellee urges that the warrant of attorney only authorized a confession of judgment, after the obligation “became due”; that, being payable on demand after date, appellant must first make demand for payment, and allege such fact in the declaration, in order to warrant bringing the action. It will be noted that the declaration expressly avers that the defendants (appellee and Harvey H. Royer), “although often requested,” have not paid the amount of the note, or any part of same, “but refuse to pay.” This is a distinct allegation that demand for payment was repeatedly made and settlement refused, and is a sufficient averment of demand, if one were necessary.

The most important question in the case is the effect of the variance between the date of execution of the note, and the date averred in the declaration, as to such fact. Appellee insists that such is a fatal defect, and renders the judgment void in its inception, while appellant contends that it is immaterial, and was waived by the express release of errors in the cognovit, executed pursuant to authority granted in the warrant of attorney.

The rule, as to release of errors, in confessed judgments, appears to be that where the cognovit, following a power granted in a warrant of attorney, expressly releases all errors which may occur, incident to the entering of the judgment, the effect is to waive or release all errors in such proceedings, except those which go to the lack of jurisdiction to enter the judgment, or to the power under the warrant to confess same. Hall v. Hamilton, 74 Ill. 437; Krickow v. Pennsylvania Tar Mfg. Co., 87 Ill. App. 653; 34 Corpus Juris, 108, sec. 287.

The extent to which the rule has been applied is illustrated by numerous decisions in this State. In Hall v. Jones, 32 Ill. 38, where the note upon which judgment was confessed was for the principal sum of $2,000 and the declaration averred it to be for $1,000, the court held the variance was such an error as was released by the cognovit. Hall v. Hamilton, supra, was a case where the declaration claimed damages to the amount of $614; the cognovit confessed $634 and judgment was entered for the latter amount; also, the cognovit was entitled in the circuit court of Cook county, while it was filed in the superior court of such county. The court ruled that the release of errors in the confession was conclusive upon the maker of the instrument, and precluded him from raising the questions. The case of Adam v. Arnold, 86 Ill. 185, was one where the note in question (upon which judgment was confessed) was a sealed instrument, payable at a particular place, yet was described in the declaration as unsealed, and payable generally. The court decided it was, at most, but a variance, and did not affect the validity of the proceedings.

In Carpenter v. First Nat. Bank of Joliet, 119 Ill. 352, 356, the judgment confessed was upon a note dated June 19; the declaration counted upon a note dated July 19. Judgment was opened upon motion, and leave granted to amend the declaration, to speak the truth. Objection was made that the judgment was void because of such variance, and that the court was powerless to permit the amendment. The court held otherwise, stating that the papers showed it to be but a clerical error, which the court had power to correct, and further said: “It was, moreover, such an error, as was waived by the agreement, in the warrant of attorney and in the cognovit, to release errors. ’ ’

In Mumford v. Tolman, 54 Ill. App. 471, a declaration, in confession, averred the note to be “payable on demand,” while the note in fact was “payable on demand after date.” The court ruled: “If this constitutes a variance, it is not such an one as could be taken advantage of by motion after judgment; moreover, the error in this regard, if such there was, is one which is released by the release of errors.” This decision was affirmed by the Supreme Court, Mumford v. Tolman, 157 Ill. 258.

That there was power, under the warrant of attorney, to confess judgment, in the instant ease, cannot be denied. That the court had jurisdiction of the subject matter and of the person of appellee, by virtue of the confession, pursuant to the authority of the power of attorney, cannot be contravened. Hence, within the rule as above stated, and the holdings of the cases cited, the error in the declaration, as to the date of execution of the note in question, was one which was released by the cognovit, following the power conferred by the warrant of attorney. The judgment was not void.

Appellee has cited the decisions in Spangler v. Pugh, 21 Ill. 85, and Streeter v. Streeter, 43 Ill. 155, 158, as announcing a different rule, where there is a variance in the amount of the note sued upon, and the amount as stated in the declaration. It will be observed that both of these cases were trials upon the merits, and the question in both arose upon objection to the notes, when offered in evidence. There was no question of release of errors by cognovit, hence they are not in point in the instant case.

Chase v. Dana, 44 Ill. 262, 263, is also referred to. Examination of this decision reveals that the note was dated April 24, 1856. The warrant of attorney, evidently upon a separate paper, was dated June 4, 1858, or nearly two years later. The warrant authorized confession of judgment upon a note described as dated April 24,1846, and bearing six per cent interest; whereas the note in question was for the principal sum with interest, without specifying the rate. Here the authority was to confess judgment upon a note of different date, and a different provision as to interest. There was nothing to show that the power granted was to confess on the note actually entered in judgment. This decision does not in anywise conflict with ,the other cited cases.

It is manifest, from a consideration of all the files in the case, that judgment was confessed upon the note executed by appellee, and that the date, as charged in the declaration, was a clerical error, which, within the rule as before stated, was released by the cognovit.

Appellee has not been harmed. The filing of the note in question was a surrender of it. No longer is it an outstanding obligation, nor can appellee be subjected to any further liability on its account. Gilmore v. German Sav. Bank, 89 Ill. App. 442, 447.

For the reasons indicated, we are of opinion that the answer stated a defense to the petition to vacate the judgment.

The judgment is reversed, and the cause is remanded, with directions to overrule the demurrer to appellant’s answer.

Reversed and remanded with directions.


author: Mr. Justice Stone

text:
    Jacob Deitz, Appellee, v. Belleville Co-operative Grain Company, Appellant.
    Opinion filed December 26, 1933.
    Farmer & Klingel, for appellant.
    Louis J. Grossmann, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This was an action on the case brought by Jacob E. Deitz, appellee, to recover damages for personal injuries sustained by him on October 28, 1932, by falling in a parking lot or yard forming a part of appellant’s premises.

The declaration consists of one count and one additional count. Both counts charge, in substance, that appellant, at and prior to the said date, was possessed of certain premises in Belleville, Illinois, which it used as its place of business. Here it bought from and sold to the public, grain, poultry and other articles of merchandise; thereby it then and there held out to the general public an implied invitation to come upon its premises for the purpose of trading with it; that by reason thereof, it owed to the public the duty of keeping said premises in a reasonably safe condition to avoid injuring persons coming upon its premises as aforesaid.

The original declaration then charges that appellant negligently and carelessly maintained a part of said premises in a careless and negligent manner, in this, that certain debris, iron or obstructions were allowed to be in and upon the premises, whereby appellee, while he was on said premises, at appellant’s invitation and while in the exercise of due care for his own safety, walked upon a certain iron bar obstruction and in so doing was tripped, by means of which he fell and broke his left hip.

The additional count after alleging due care on the part of appellee and his reason for being upon the premises, etc., alleges that “defendant negligently maintained and allowed the premises to be and become in an unreasonably unsafe condition, in this, that said debris, sheet metal, iron or other obstructions were allowed to be upon the premises aforesaid by reason of which said obstructions, appellee was tripped thereon; fell and received the injuries above described. ’ ’ To this declaration a plea of general issue was filed and a trial was had.

Appellant was engaged in buying from the farmers in said community all kinds of farm produce and in selling these articles at retail to the general public. It conducted its business in a large L-shape building. Adjoining the two sides of this building, which was on the inside of this L appellant maintained a parking lot for the benefit of its patrons. Many vehicles enter and stop there daily. This yard is about 100 feet long by 60 feet wide and slopes slightly downward from a side of the longer wing of the building. In the shorter wing of the building, near to the corner formed by the union of the two wings, there is a doorway by which vehicles can enter the building, to be loaded and unloaded and to drive upon the scales there. This doorway is reached also by a driveway in the yard which adjoins the longer wing of the building. The entire surface of this yard is made of chat about 12 inches deep. This chat was put down about nine years ago and was smooth and very hard.

Appellee is a man about 64 years of age. He had previously been an iron molder by occupation. He was somewhat unsteady on his feet and walked at times with the aid of a cane. On the morning in question he came to appellant’s place of business in company with his son. They drove the son’s automobile into appellant’s yard and parked there. The son got out and went into the building. About five minutes later appellee got out of the car with intention of entering the large doorway. After stopping between the car and the door to talk to certain people, he took two or three steps and then fell upon the chat and broke his left hip. The place where he fell was in appellant’s parking yard about 10 or 15 feet from each of the two wings of the building. No one saw him fall though several saw him immediately afterwards. Appellee testified that while he was in the act of taking a step the heel of his right foot struck the obstruction lying on the chat which was afterwards found to be a piece of sheet metal. The piece of metal was about one-sixteenth of an inch in thickness, 18 inches to two feet long and three or four inches wide in the middle and tapering at the ends. Several witnesses, including appellee, saw it while it was being tossed in the air by appellee’s feet. It lay two or three feet from his foot after he had fallen.

Appellee offered no proof as to where he was looking, what direction he was facing or how he was walking at the time he received the fall. Neither did he offer any evidence on the question of appellant’s knowledge of the piece of sheet metal in the yard, nor the length of time it had been there. No witness had ever seen the piece of sheet metal until after appellee’s fall. There was no evidence offered to the effect that the sheet metal .lying upon the chat constituted a dangerous condition except the fact that appellee struck it with his foot and fell as a result thereof. Neither was there evidence that this piece of metal constituted hidden danger, trap, snare or pitfall.

At the close of appellee’s evidence and again at the close of all the evidence, appellant moved the court for a directed verdict but the court denied the motion.

The jury returned a verdict in the sum of $2,200. A motion for a new trial was denied and judgment was entered upon the verdict. The case is brought here on appeal.

The presence of this piece of sheet iron two feet long, two inches wide and one-sixteenth of an inch thick lying in an open lot in broad daylight does not seem to us to create a condition which comes within or near that line of decisions which hold that the owner of premises is responsible for injuries to invitees upon his premises, received because of dangerous conditions allowed to exist there. Not only was this piece of metal not a hidden danger trap or pitfall but it is such a thing as by its very nature does not create a dangerous condition.

It is the duty of persons who invite others upon their premises to keep such premises in a reasonably safe condition so that their invitees will not be injured by reason of any unsafe condition of the premises, yet the law does not make the owners of premises insurers of persons thereon. To hold that defendant was guilty of negligence because this piece of sheet iron was on this open lot where anyone might see it would in our judgment be carrying the definition of negligence to an unreasonable extreme. Even were we ready to go to that extreme we would still have to hold that the evidence in this case shows affirmatively that defendant had no knowledge of the condition. Nor would he have had knowledge in the exercise of reasonable care in that behalf. There is no evidence of lack of reasonable care.

Another trial of this case even though it might show that defendant knew of this piece of metal being upon its premises would not change our minds and lead us to believe that the said piece of metal, where it was and such as it was created a dangerous condition upon these premises. There was no evidence in this case which fairly tended to show that defendant was guilty of any negligence which caused plaintiff’s injuries. The trial court erred therefore in not allowing defendant’s motion and in refusing' to instruct the jury to find the defendant not guilty. The judgment is therefore reversed.

Judgment reversed.