text:
    William E. Schneider, Appellant, v. Fort Dearborn Casualty Underwriters, Inc., Appellee.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Rehearing denied June 23, 1930.
    Louis Beasley and Edward C. Zulley, for appellant.
    Wilbur C. Schwartz and Parmer & Klingel, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an action ex delicto brought by the appellant in the court below against the appellee insurance company. The nature of the action and the facts giving rise to the grievances complained of appear from an examination of the declaration filed in the case, a summary of the declaration being given in the following opinion.

Prom a judgment dismissing the action on a general and special demurrer to the declaration, the appellant appeals. The declaration consists of two counts in general as follows: That the appellee issued to the appellant its policy of insurance providing that the appellee indemnify and insure the appellant against any loss by reason of liability imposed on the appellant for damages on account of bodily injuries accidently suffered, or alleged to have been suffered, while the policy was in force, by any person by reason of the ownership, maintenance or use of' the automobile owned by the appellant; that the appellee defend in the name and on behalf of the appellant any suit brought against him to enforce a claim, whether groundless or not, for damage suffered on account of bodily injuries as aforesaid; and to pay all costs taxed against the appellant in any suit so defended by the appellee.

The declaration further alleges that subsequent to the issuance of said policy one Albert Scheik sustained bodily injuries by reason of the use of appellant’s said automobile and filed his suit for damages against the appellant in the circuit court of St. Clair county, on account of such personal injuries received by Scheik; that the appellee took charge of the defense of said suit, filed pleas therein, conducted the trial and filed a motion for a new trial in said cause; that a judgment in said cause in favor of the said Scheik was entered against the appellant in the sum of $5,000 and costs of suit, on June 22, 1925.

The declaration further alleges that one count of the declaration filed by said Scheik contained an allegation that the appellant wilfully and wantonly operated the said automobile and thereby caused the injuries to said Scheik; that the appellee knew that the declaration filed in the Scheik action contained such count, and that if such judgment against the appellant was not satisfied that the said Scheik would cause an execution to be issued and levied upon the appellant’s body. That appellee knowing such facts failed to pay said judgment or to perfect an appeal within the time provided by the order of court entered in such action; that said appellee retained entire control of said Scheik case against the appellant until the 30th day of September, A. D. 1925, during all of which time appellant relied upon the defendant to protect him from said judgment and from any execution issued thereon.

In the first count of the declaration filed herein it is averred and charged that the said appellee wilfully and wantonly failed, neglected and refused to notify the appellant at any time prior to September 30, 1925, that it did not intend to pay said judgment, or to perfect an appeal in said cause within the time allowed by the order of the court. The second count avers and charges that after the entry of said judgment and prior to the issuance of the execution on said judgment, the said Scheik repeatedly notified the appellee that if the said judgment was not paid, the said Scheik would cause an execution to be issued against the body of the appellant, and the appellee so knowing such facts wilfully and wantonly failed to notify the appellant of its intention not to pay said judgment or to perfect an appeal within the time allowed by the order of the court and the said appellee thus perpetrated a fraud upon the appellant.

Both counts allege that the appellant was on September 30,1925, taken by the sheriff of St. Clair county, Illinois, under a writ of execution issued in the case of Albert Scheik v. Appellant and placed in the county jail at Belleville, Illinois. That prior to September 30, 1925, appellant was a law-abiding citizen and enjoyed the esteem of his friends and neighbors in said St. Clair county; that as a direct result of the wilful and wanton failure of the said defendant to notify the plaintiff of its intention not to pay said judgment, or to perfect an appeal as heretofore alleged, and his incarceration in the said jail, the plaintiff was thereby then and there greatly damaged in his goods and reputation ; that appellant expended, to wit, $535 in order to effect his release from said jail and obtain satisfaction of said judgment; that on account of the said defendant’s .wilful and wanton negligence, as heretofore set out, he has been damaged in the sum of $25,000, etc.

The general demurrer to the declaration in this case presents the issue whether the facts well pleaded in the declaration give a right of action ex delicto sounding, as such actions do, in damages. (People v. Holten, 259 Ill. 219.) In his printed argument filed in this court, the appellant confines himself chiefly to a discussion of the contention that the specific causes of the special demurrer to the declaration are not maintainable nor tenable. After carefully considering appellant’s argument we conclude therefrom that he maintains that the declaration pleads sufficient facts, placing the legal duty upon the appellee to protect the appellant against any execution issued on the judgment entered in the original case in favor of Scheik and against the appellee, by either paying the judgment, or appealing the case; that appellee having failed either to so pay or appeal, after having undertaken the defense in the case, it must respond to the appellant in damages in an action in tort. While the action in some respects is quite novel, an examination of the authorities shows the existence of general principles, and on certain phases of the case, apt precedents, which are controlling on the question whether the declaration states a cause of action ex delicto.

To. determine the form of redress, whether ex contractu or ex delicto, it is necessary to ascertain the source or origin of the duty which it is alleged has been breached. 38 Cyc. 426. The relation of the parties being solely contractual, their duties" arise out of the insurance policy and such other duties which the law imposes upon them because of such relation. We think the general rule applicable to the relation of the parties to this action is well stated in the case of Attleboro Mfg. Go. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 Fed. 573. In this case the U. S. Circuit Court of Appeals say: “It is a well-recognized rule that, where the only relation between the parties is contractual, the liability of one to the other, in an action of tort for negligence, must arise out of some positive duty which the law imposes because of the relationship or because of the negligent manner in which some act which the contract provides for is done, and that the mere breach of an executory contract, where there is no general duty, is not the basis of such an action.” This general rule is recognized in the case of Nevin v. Pullman Palace Car Co., 106 Ill. 222, 223, where it is held that the general principle is, that where the duty for the breach of which the action is brought would not be implied by law by reason of the relation of the parties, whether such relation arose out of the contract or not, and its existence depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract and not in tort.

The appellant relies upon the cases of Attleboro Mfg. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 171 Fed. 495; Anderson v. Southern Surety Co., 107 Kan. 375, 191 Pac. 583, and to which may be added to the same effect: Wynnewood Lumber Co. v. Travelers’ Ins. Co., 173 N. C. 269, 91 S. E. 946, as holding that where an insurer under its liability policy assumes the defense of the insured and is negligent in conducting the suit to insured’s loss, the latter can sue the insurer for a breach of its implied contract to exercise reasonable care in conducting the suit, or in tort for negligence.

There is no allegation in the declaration in this action that the appellee was guilty of any negligence in the conduct of the action brought against appellant by Scheik; no allegation that appellee failed to employ competent counsel, or that counsel employed to defend was guilty of any negligence, the consequence of which was the verdict and judgment against the appellant. So far as the declaration shows, the case was conducted properly and skilfully, although it resulted in a judgment for $5,000 against the appellant. The appellant does not contend that the declaration directly charges the appellee with actionable negligence in the conduct of the defense of the case, as was charged in the Attleboro case cited (supra), but he maintains that the rule laid down in the Attleboro case is applicable to the gravamen of the action set forth in his declaration.

Appellant also cites the cases of Seessel v. New Amsterdam Cas. Co., 140 Tenn. 253, 204 S. W. 428; Rochester Min. Co. v. Maryland Cas. Co., 143 Mo. App. 555, 128 S. W. 204; Pacific Coast Casualty Co. v. General Bonding and Casualty Co., 240 Fed. 36, as holding that when a judgment is rendered against the insured on a claim covered by a policy in which the insurer agrees to defend suits brought against the insured, the obligation is on the insurer to provide the bond for appeal and protect the insured from execution until the suit is terminated. From the rules announced in the foregoing authorities it is urged by appellant that his declaration states a cause of action ex delicto and that the authorities hold, that on account of appellee, by its attorneys having assumed control of the litigation, it thereby became the duty of the appellee to protect appellant from execution and imprisonment until the suit was terminated. With this reasoning of the appellant we cannot agree.

The declaration does not state that the judgment entered in the case in favor of Scheik and against the appellant was erroneous and that the appellant would have succeeded on a second trial. In the case of Wynnewood Lumber Co. v. Travelers’ Ins. Co., 173 N. C. 269, 91 S. E. 946, it was held that a demurrer to a complaint based upon the charge that the insurer failed to appeal where the liability policy gave the insurer the right to defend, was properly sustained where the declaration failed to contain such allegation. The court in that case said: “The fact that the defendant failed to prosecute an appeal does not constitute of itself either a tort or a breach of the implied contract, for the reasons given by the Supreme Court of Iowa in Getchell & Martin Lumber Mfg. Co. v. Employers Liability Assur. Corp., 117 Iowa 180, 90 N. W. 616, 62 L. R. A. 617, viz: ‘in insurer against employer’s liability whose contract gives it the right to defend against suits by employees against the assured, and which, after a judgment in excess of the insurance has been obtained against the assured, agrees to perfect an appeal, is not liable for negligently failing to do so, whereby the judgment is affirmed, in the absence of anything to show that the judgment was erroneous, and that the plaintiff could not have succeeded on a second trial.’ ” (Sterios v. Southern Surety Co., 122 Wash. 36, 209 Pac. 1107; McAleenan v. Massachusetts Bonding & Insurance Co., 232 N. Y. 199, 133 N. E. 444, and Davison v. Maryland Casualty Co., 197 Mass. 167, 83 N. E. 407.) It is apparent, therefore, that the declaration in the instant case does not allege facts showing that the appellee was negligent in not appealing the Scheik case and that the allegation that the appellee wilfully and wantonly failed, neglected and refused to notify the appellant to perfect an appeal are mere conclusions of the pleader.

The cases cited by the appellant to support the proposition that it was the duty of the appellee to protect the appellant against an execution being issued on the judgment until the termination of the suit were all actions ex contractu, holding that under the terms of the insurance policy then in question it was the duty of the insurer to so protect its insured. In none of these cases was the insured allowed to recover damages in excess of the amount fixed in the respective policies plus costs and expenditures made by the insured and necessarily and directly related to the presentation of the defense. These cases do not hold that the positive duty is imposed upon the insurer, independent of the stipulation of the policy, to protect the insured by either appealing the case or paying the judgment nor that the nonperformance of this duty, whether contractual or imposed by law, gives rise to an action sounding in tort.

The declaration does not allege that the appellant by the exercise of ordinary care could not have learned that the appellee did not pay the judgment before the expiration of the time for the perfecting of the appeal, and does not allege that the appellant could not have paid the judgment after the appellee’s failure to file an appeal bond in time, which he had a right to do. (Ferry v. National Motor Underwriters, 244 Ill. App. 241.)

The demurrer to the declaration was properly sustained and the judgment of the lower court dismissing the action is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Otto Hermann, Sheriff for the use of Dale G. Hyle, Appellee, v. William W. Haven and Ruth E. Haven, Appellants.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Byron W. Haven, for appellants.
    J. B. Harris, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On October 17, 1928, W. W. Haven filed suit in the city court of Granite City, Illinois, for the recovery of one set of Supreme Court Reports, 16 sections of bookcases and other office furniture, alleged to be in the possession of one Dale G. Hyle. The said W. W. Haven alleged that the property sought to be recovered was his, and that he was entitled to the possession of the same. The court ordered a writ of replevin, directed to the sheriff of said Madison county, ordering that he should without delay replevin and deliver to said W. W. Haven the said goods and chattels aforesaid. A bond signed by W. W. Haven and Ruth E. Haven was given to the sheriff. Thereupon the sheriff of said county seized the goods mentioned aforesaid and delivered them to said W. W. Haven.

This suit is upon a replevin bond against the principal and surety for failure to return the goods to D. G. Hyle, who had possession of the property at the time they were seized by the sheriff. At the trial of the case a stipulation was entered into between the parties whereby it was agreed that W. W. Haven, one of the defendants in this case, sued out of the office of the clerk of the city court of G-ranite City, Illinois, a writ of replevin against D. G. Hyle, plaintiff in this case, for the recovery of the goods mentioned in the writ of replevin. It was further stipulated that the goods mentioned in the replevin writ were in the office of Dale G. Hyle, the plaintiff, and that the sheriff seized and took possession of the same and delivered them to one of the defendants, W. W. Haven, the plaintiff in the original replevin suit, and that the same has not been returned to the said Dale G. Hyle. It was further stipulated that at the trial of the replevin suit that said trial resulted in a judgment for the defendant Dale G. Hyle, and that the bond sued upon in this case was signed by W. W. Haven and Ruth Haven and is the bond that was given in the replevin case. The trial which resulted in a verdict for the plaintiff was held in the city court of Granite City. The case comes to this court on appeal from said court.

It is the contention of the plaintiff in error that there is not sufficient evidence in the case to justify the jury in finding a verdict for the plaintiff; that the evidence shows that the defendant in error was not the owner of the property in question, but that it belonged to one of the plaintiffs in error, and therefore, the suit could not be maintained.

The defendant in error, Dale G. Hyle, did not claim to be the owner of the property in question, but had the right to the use of the same. The suit was based upon that theory, and we think, if he has shown that he was entitled to the possession of the property at the time of the replevin suit, then he could maintain his action on the bond for the damage he has sustained by reason of being deprived of the use of the property. It was stipulated at the time of the trial that the issues in the replevin case were found in favor of Dale G. Hyle, regardless of who was the owner of the property. The record shows Dale G. Hyle was entitled to the possession of it.

Complaint is made in regard to the evidence as to the value of the use of this property. Mr. Hyle, the plaintiff below, and Harry Faulkner, an attorney at law of Granite City, Illinois, testified that the reasonable rental value of the replevined property would be $9 or $10 per month. This evidence was admitted without objection on the part of the defendants. The defendant offered no evidence to the contrary, therefore, “they are not in a position” to say that it should not be considered by the jury as evidence tending to show the rental value of this property.

The appellants also complain that the court refused to instruct the jury .of the fact that they must not take into consideration, in assessing the damages, the necessary number of counsel employed in the defense of the replevin suit. Mr. Hyle testified that in his opinion it was necessary to employ two attorneys to defend the replevin suit; that the plaintiff had three attorneys employed in the same suit; that in his opinion the reasonable value of services of this kind would be $200. This evidence was also admitted without objection on the part of the defendants. Mr. Harry Faulkner testified that in his opinion $150 would be a reasonable fee for the services rendered. The defendants did not .introduce any evidence to show that the two attorneys were not necessary to defend the suit, or what' such services were reasonably worth. We are of the opinion that the court did not err in refusing to give these instructions. The appellants are in no position to urge this error as the abstract does not show that there was any exception taken to the court’s refusal to give these instructions.

The appellee made a motion to strike from the files the purported abstract of record filed in this case and to dismiss the appeal. After ^considering the case we are of the opinion the judgment of the lower court should be affirmed. We have not passed upon the motion presented by the appellee, but there are many markings on the record that make parts of it unintelligible.

We find no reversible error in the case and the judgment of the city court of Granite City, Illinois, is affirmed.

Affirmed.


author: Mr. Presiding Justice Barry

text:
    King City Building & Loan Association, Defendant in Error, v. William H. Green, Plaintiff in Error.
    Heard in this court at the February term, 1930.
    Opinion filed May 28, 1930.
    Conrad Schul, for plaintiff in error.

      Albert Watson and Gilbert & Gilbert, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error gave defendant in error a mortgage on certain real estate to secure a loan. The mortgage contained a provision by which plaintiff in error authorized any attorney at law to waive the issue, service and return of process and to enter his appearance in any suit brought to foreclose the mortgage, to waive the right of appeal, and to waive and release errors in such proceeding. Defendant in error filed its bill to foreclose the mortgage during the July Term, 1929, of the circuit court and on the day the bill was filed, an attorney, purporting to act under the power in the mortgage, entered the appearance of plaintiff in error and waived the right of appeal and released all errors in the proceedings. The court entered a decree of foreclosure on the day the bill was filed.

The written entry of appearance by the attorney as aforesaid did not purport to authorize the court to hear the cause at the term at which it was filed. The premises were sold under the decree and upon the coming in of the master’s report of sale a deficiency decree for $9,155.31 was rendered against plaintiff in error.

If plaintiff in error had been served with a summons on the day the bill of foreclosure was filed, no one would contend that he could be forced to a trial at the July Term of court. In the absence of an agreement to the contrary the case could not be heard until the succeeding term. That would also be true if plaintiff in error had signed the entry of appearance himself, where the bill and appearance are filed during a term of court, unless he would agree to submit to a trial of the cause at that term. The fact that the appearance of plaintiff in error was entered by an attorney purporting to act under the power in the mortgage, would not in any way change the situation. At the time the decree of foreclosure was entered the court had no jurisdiction over plaintiff in error that would authorize a hearing at the July Term of court. The decree was premature. Flagg v. Walker, 109 Ill. 494; Chatterton v. Chatterton, 132 Ill. App. 31; Dickey v. Dickey, 254 Ill. App. 234.

It has been said, many times, that even though there is a release of errors in a judgment by confession, a defendant may avail himself of jurisdictional defects .by suing out a writ of error. Hinds v. Hopkins, 28 Ill. 344; Burns v. Nash, 23 Ill. App. 552; Little v. Dyer, 35 Ill. App. 85; Krickow v. Pennsylvania Tar Mfg. Co., 87 Ill. App. 653.

In 1887 the legislature passed an act to enable parties to avoid delay in the administration of justice, Cahill’s St. ch. 110, 26. It contained a provision that any two or more persons might appear in any circuit court in Cook county and submit to any judge thereof, orally and without formal pleadings, any matter in controversy, if they would first enter into a written agreement, to be entered of record, and substantially in the form set out in the statute. That form contained a waiver of the right of appeal and a release of all errors that might intervene in the hearing of the matter submitted and in the entering up of the judgment or decree. A case arose under that statute in which the court said: “It is, of course, true, that if the court did not have jurisdiction to render the decree no recital in the record that plaintiff in error had released all errors would avail.” Farwell v. Sturges, 165 Ill. 252-275.

Where a court is without jurisdiction to render judgment on an award, the fact that the submission agreement waives and releases all errors that may intervene in the entry of said judgment, and waives the right of appeal or writ of error, will not deprive a defendant of his right to have the judgment reversed on appeal. Duffy v. Odell, 117 Ill. App. 336; In re Ames Farmer Canning Co., 190 Iowa 1259, 179 N. W. 105.

We find it unnecessary to decide whether the power contained in the mortgage is valid and binding upon plaintiff in error. Assuming, without deciding, that it is valid, the appearance entered in pursuance thereof was wholly insufficient to give the court jurisdiction to hear the cause and enter a decree of foreclosure during the July term of court. It necessarily follows that the decree of foreclosure and the deficiency decree, must be reversed and the cause remanded.

Reversed and remanded.


text:
    Jesse Harris, Appellee, v. Pulverized Manure Company, Appellant.
    Heard in this court at the February term, 1930.
    Opinion filed May 28, 1930.
    Rehearing denied June 23, 1930.
    H. Grady Vien and Winston, Strawn & Shaw, for appellant; J. Sidney Condit and Harold A. Smith, of counsel.
    Pope & Driemeyer, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

In May, 1926, the plaintiff and defendant entered into a written contract, as follows:

“This agreement, made and entered into this 11th day of May, 1926, by and between The Pulverized Manure Company, incorporated under the laws of the State of Maine, having its principal office at Chicago, Illinois, hereinafter called the party of the first part, and J. Harris of 121 Baugh Avenue, East St. Louis, Illinois, hereinafter called the party of the second part.
“Whereas, the party of the first part has throughout each year certain supplies of manure to be removed from barns and loaded into cars and the party of the second part desires to remove this manure from these barns and load it into cars for the party of the first part,
“Now, THEREFORE, THIS AGREEMENT WITNESSETH:
“First, that for and in consideration of the sum of One Dollar ($1), paid each to the other and receipt of which is hereby acknowledged, the party of the first part agrees to employ the party of the second part to remove this manure from barns in which it may be located and load it into cars, from the date first above written to and including September 30, 1929.
“Second, that the party of the second part agrees to remove this manure from barns and load it into cars at any time that the party of the first part shall desire this to be done.
‘ Third, that the party of the first part agrees to pay the party of the second part the following prices for removing this manure from barns and loading it into cars:
(Omitting the rate per ton or carload to be paid.)
“Fourth, that in case the party of the second part acquires manure from anyone for services rendered, such as furnishing sawdust, etc., the party of the first part agrees to pay the party of the second part Twenty-two Dollars and Fifty Cents ($22.50) per car for such manure.
“Fifth, that the party of the second part agrees to load all cars in a manner satisfactory to the party of the first part.
‘ Sixth, that the party of the second part agrees that in consideration of being given the contract for doing the work above referred to for the prices stated, the party of the second part will assign all contracts covering supplies of manure which the party of the second part now holds, and will assign any contracts hereafter obtained, during the term of this contract, to the party of the first part.
“Seventh, that the party of the second part agrees not to load manure for anyone except the party of the first part and the St. Louis National Stock Yards during the term of this agreement.
“This agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
“In witness whereof the parties hereto have caused this instrument to be duly executed in triplicate the day and year first above written.
The Pulverized Manure Company,
By D. L. Harris,
President.”

Under this contract, the defendant purchased large quantities of manure in the yards and barns at the stockyards in East St. Louis, Illinois, .before it was loaded into the cars, and hired the plaintiff to remove and load it in freight cars. The defendant had the plaintiff load and haul all of the manure so purchased. Up to the time of the trial, the defendant had paid the plaintiff for such services approximately $27,500.

The dispute arose over the interpretation of the contract. The plaintiff started suit against the defendant in the city court of Bast St. Louis, Illinois, charging the defendant with violation of the contract, alleging that the defendant neglected and refused to perform its part of the contract; that in violation of its agreement the defendant arranged with other persons to procure and load said manure in the cars, which should have been procured and loaded by the plaintiff, thus making it impossible for the plaintiff to carry out his contract, and thereby wrongfully depriving the plaintiff of large profits. A bill of particulars was filed, which states that the claim of the plaintiff was for loss of profits on cars of stable manure loaded from barns by others than the plaintiff, which should have been hauled and loaded by the plaintiff.

A trial by jury was had, and at the close of the plaintiff’s evidence, the defendant asked the court to instruct the jury to direct the verdict in its favor. The court refused to give such instruction, and the defendant offered evidence in the case. The jury found the issues in favor of the plaintiff, and assessed his damages at $2,000, and judgment was entered against the defendant for this amount.

It is the contention of the plaintiff below that by the terms of the written contract, the plaintiff had the exclusive right to load all manure purchased by the defendant, and that the purchasing by the defendant of manure in carload lots was a violation of the contract. It is the contention of the defendant that the contract provides for the plaintiff alone to load such manure as was purchased by them lying in the barns or sheds, and did not apply to any manure that they might purchase which had already been loaded on the cars and ready for shipment, since they had nothing to do with the loading of the manure in the cars, but bought it f. o. b. tracks at the Stock Yards in Bast St. Louis. We are of the opinion that this contract did not give plaintiff the exclusive right to load all the manure which was purchased by the defendant company, and that it was not a violation or breach of the contract for the defendant to purchase manure which had been loaded in cars by some one else aside from the plaintiff. The legal effect of the language used in any agreement should be decided by the court, and not be submitted to the jury.

We are of the opinion that the evidence in this case does not show a breach of the contract by the defendant, and that the plaintiff was not entitled to damages therefor. The trial court should have given the instruction at the close of the plaintiff’s evidence for a directed verdict in favor of the defendant. There are other errors urged by the appellant to reverse this judgment. We do not deem it necessary to discuss these assignments, as in our opinion, the proper legal construction of the contract bars ■ the plaintiff from any right of action.

The judgment of the city court of East St. Louis is hereby reversed.

jReversed.


author: Mr. Presiding Justice Boggs

text:
    In re Estate of Henry A. Duffield, Deceased. Appeal of Anna R. Riddle and O. A. Smith, Conservator of Joseph H. Duffield.
    Gen. No. 8,173.

      Heard in this court at the February term, 1930.
    Opinion filed May 29, 1930.
    Ira J. Covey and Edwin L. Covet, for appellant O. A. Smith. George B. Sucher, for appellant Anna R. Riddle.
    Robert N. McCormick, for appellee; Joseph W. Maple, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellants prosecute this appeal to reverse the-judgment of the circuit court of Peoria county, approving the final report of Henry L. Duffield, administrator of the estate of Henry A. Duffield, deceased, and overruling the objections of appellants thereto.

The principal ground urged in this court for a reversal of said judgment is that the court erred in failing to hold that the purported claim of appellant for $3,907.01 had been allowed by the probate court and in failing to order its payment by said administrator in so far as the funds in his hands, as shown by said report, would extend. It is not claimed by appellants that they filed said claim as' provided by statute, but that, in a decree to sell real estate to pay debts their claim was in effect adjudicated and entitled to payment.

Henry A. Duffield died intestate in said county on March 16,1926, leaving him surviving appellants Anna R. Riddle and Joseph H. Duffield, his children and only heirs. Appellee, a nephew,' was appointed administrator, and filed an inventory of the real and personal estate of said deceased.

On June 14, a petition was filed by said administrator setting forth that the personal estate of said deceased amounted to $359, that claims had been allowed for $622.11; “that the just claims to be presented and allowed would probably amount to the sum of $7,000; that said deceased died seised in fee of 74% acres of real estate in said county; that on February 26, 1906, said deceased obtained a decree of divorce against his then wife, Ruhamah Duffield, and that in a property settlement he executed a mortgage on some 15 acres of said premises, securing ten promissory notes of that date, payable to the order of said Ruhamah Duffield and her children, in installments of $50 every three months; “that your petitioner is informed and believes that unless all of said notes were paid by said deceased in his life-time, that he has made no payments on any of them within ten years next preceding the date of his death, nor extended the time of payment thereof.” Said petition prayed “that it be ordered and adjudged by said court that the benefits and advantage of the statute of limitations . . . be allowed in behalf of said estate and that ... in the event of the sale of said premises, it be sold free and clear of said mortgage lien.”

Said petition further set forth that on January 8, 1926, the deceased executed a trust deed on all of said inventoried real estate, securing the sum of $5,200, due March 1, 1931. Said petition averred the mental incapacity of Joseph H. Duffield.

On July 7, 1926, a decree was entered, finding that appellant Joseph H. Duffield, Ruhamah Duffield, as Ruhamah Novack, and William S. Prettyman, trustee, had been served with summons; that appellant Anna, R. Riddle and certain other parties had entered their appearance, “consenting that default may be taken against them and that this cause may proceed to an immediate hearing”; that the guardian ad litem appointed for appellant Joseph H. Duffield, had filed an answer neither admitting or denying the allegations of said petition, but demanding strict proof-; that an answer had been filed on behalf of William S. Prettyman, trustee and the holders of the notes secured by the trust deed for $5,200. Appellant, Anna R. Riddle and Ruhamah Novack were defaulted, and a decree pro confesso was entered against them.

Said decree among other things found that “the nature and extent of all liens upon said real estate . . . are as follows: A certain mortgage deed, duly executed and delivered February 26, 1906, by said deceased in his lifetime to said defendant Ruhamah Novack and her children, viz., Joseph H. Duffield and Anna R. Riddle, to secure the payment of $2,000, on a part of the described premises”; that the said Ruhamah Novack assigned all her interest in said mortgage on September 18, 1915, to appellants Joseph H. Duffield and Anna R. Riddle. Said decree ordered said premises sold subject to said trust deed of $5,200, but made no reference to the mortgage of $2,000.

The premises were sold, pursuant to said decree for $2,967.50. A report of such sale was filed in the county court on August 9,1926.

On May 26, 1927, administrator filed his final report, to which appellants filed 25 objections. Certain of these objections were sustained. The administrator recast his account and filed an amended report, to which six objections were filed, designated as 10, 11, 13, 15, 16 and 17. Said objections were overruled, the report was approved and appellants appealed to the circuit court; On the hearing in the circuit court, said objections were overruled and the report was approved.

It is urged here that the circuit court erred in overruling objections 10, 11, 13 and 15, which are as follows:

“Ten. For that these heirs heretofore and now have and hold a joint valid, pre-existing first lien now in full force and effect as joint prior mortgagees, which said lien is now a preferred and prior lien against the entire assets of said estate for the sum of $3,907.01. That by reason thereof these heirs-at-law are, of legal right, entitled to be first paid the amount of their said preferred lien out of the assets of said estate, and that regardless of any other of the claims against said estate.

“Eleven.' For that the rights and interests of these objectors have not, as yet, been determined under the proceedings now on file and yet unheard, still pending and undetermined in said above entitled cause, and a Final Report is not, as yet, proper in said estate.

“Thirteen. For that the interests of these objectors have not, as yet, been duly protected before and by this Court in the matters now in question.

“Fifteen. For that these heirs-at-law and objectors are the joint and absolute owners of a certain real estate mortgage that is a first and prior lien, still in full force and effect and due and unpaid, on and against the premises attempted to be sold to pay debts in said above entitled cause, and that the Administrator of said estate has heretofore wrongfully alleged that said mortgage is barred by the Statute of Limitations, when, in fact, the said Statute has not, in law, run against said mortgage or the debt secured thereby or any part thereof, but, on the contrary, that said mortgage and debt is now due and unpaid and undischarged and is now in full force and effect and a valid, subsisting, prior lien against and upon the premises in question in said above entitled cause.”

Counsel for appellants seek to have us review and pass upon the proceedings in the county court, beginning with the filing of the petition to sell real estate to pay debts. On objections to the final report of an administrator, the circuit court has jurisdiction to hear and determine only such matters as arise directly on that appeal. Curts v. Brooks, 71 Ill. 125-128; Morgan v. Morgan, 83 Ill. 196-197; Millard v. Harris, 119 Ill. 185-191; Whittemore v. Coleman, 239 Ill. 450-452; Peterman v. U. S. Rubber Co., 221 Ill. 581-587; Allen v. Allen, 222 Ill. App. 438-442.

If appellants were dissatisfied with the decree ordering the sale of real estate to pay debts, they could have appealed. Such appeal, however, is to the Appellate Court unless a freehold is involved and, if a freehold is involved, then to the Supreme Court. Lynn v. Lynn, 160 Ill. 307-313; Roberson v. Tippie, 215 Ill. 119-120; Wachsmuth v. Pennsylvania Mut. Life Ins. Co., 231 Ill. 29-31; Atherton v. Hughes, 239 Ill. 632-633; Sifford v. Cutler, 244 Ill. 234-235; Swayer v Wiemers, 182 Ill. App. 651-653.

While counsel concede that appellants’ claim was not filed and allowed in the manner provided by statute, they contend that this omission was cured by reason of the fact that appellee, in his petition to sell real estate to pay debts, set forth the execution of said notes and mortgage under which appellants claim, averring that they were barred by the statute of limitations, and praying the court to so adjudicate the same.

Even if it be conceded that said court determined that said mortgage indebtedness was a lien on said premises it would not obviate the necessity of probating said claim in order to make it payable out of the funds in the hands of appellee as such administrator. Clause 6 of paragraph 71 of chapter 3, Cahill’s Statutes, among other things provides:

“All other debts and demands of whatever kind, without regard to quality or dignity, which shall be exhibited to the court within one year from the granting of letters as aforesaid, and all demands not exhibited within one year as aforesaid, shall be forever barred, unless the creditors shall find other estate of the deceased, not inventoried or accounted for.”

This statute has been uniformly held to require that claimants must, in order to participate in the distribution of the assets of an estate, present their claims, for the purpose of having them allowed. Failing to do so, they can only have their claims satisfied out of property not inventoried. Roberts v. Flatt, 142 Ill. 485-490; Waughop v. Bartlett, 165 Ill. 124-131; Strauss v. Phillips, 189 Ill. 9-23; Morse v. Pacific Ry. Co., 191 Ill. 356-361. Beebe v. Kilpatrick, 321 Ill. 612-617.

In Roberts v. Flatt, supra, the court at page 491 says:

“The statute requires all claims to be exhibited to the court within two years from the granting of letters of administration, and then declares: ‘All demands not exhibited within two years, as aforesaid, shall be forever .barred.’ Under this statute, we think it is plain, that although the administrator may be informed of the existence of a claim, and may state to the court that a certain debt is outstanding, with a view to lay a foundation to institute a proceeding to sell real estate to pay debts, still these facts will not relieve the creditor of the duty to file his claim in the county court for adjustment, if he desires to prevent the running of the statute.”

In Morse v. Pacific Ry. Co., supra, the court at page 361 says: . . . “The knowledge of the executors that there was a claim made by creditors of the Pacific Railway Company would not take the case out of the statute, which requires the claim to be exhibited in a court. It is the duty of the claimant to institute a proper proceeding upon his claim, and the fact that the executors know that a claim is made which is not exhibited in court makes no difference.” Citing Roberts v. Flatt, supra.

The law further is that an administrator is required to protect the estate he represents from the allowance of unwarranted claims, and in this connection it is his duty to insist on the bar of the statute of limitations when that bar is available. See 241 Ill. App. 452-453.

In addition to the authorities above cited, the Supreme Court, in Moore v. Chandler, 59 Ill. 466, in a case where a mortgagee of real estate owned by the deceased at the time of his death, sought, without probating his claim, to reach certain assets in the hands of the administrator, at page 468 says:

“After payment in full of all claims allowed against the estate, there still remained in the hands of the administrator a surplus fund, arising principally from the sale of the land to appellant, which he insists should be applied to the payment of the mortgage. It is not perceived how this can be done. The Chandler debt was never allowed as a claim against the estate, and two years from the granting of letters having elapsed, it is now too late. The estate is therefore discharged from the payment of the debt, and Chandler can only enforce his claim against the mortgaged premises.”

Under the foregoing authorities, we hold that the claim of appellants was not presented or allowed within the time specified in the statute.

The second ground urged is that the finding of the probate court that said mortgage was a lien on the premises, was res adjudícata as to the claim of appellants. What we have already said sufficiently disposes of this contention. The decree, however, simply recites that there was such a mortgage lien on said premises, without an. adjudication of the amount owing, if any, to appellants on said claim.

The third contention is that the real estate was sold subject to said mortgage. If appellants are correct in this contention (which is not before us for determination), not having filed and had allowed their claim in the probate court, so far as the interest of appellant Anna R. Riddle is concerned, she must look alone to said mortgage security. Moore v. Chandler, supra; Waughop v. Bartlett, supra, 131.

It is next insisted that “the appellants are entitled to have allowed an unsecured claim for the amount due them.” In this connection it is said that “in filing their objections that they were entitled to a lien on the funds in the hands of the administrator, in effect sets up that they were entitled to their distributive share with the other creditors out of the funds in the hands of the administrator.”

What we have already said with reference to the failure of appellants to probate and have allowed their claim sufficiently answers this contention.

It is next insisted that, inasmuch as appellant Joseph H. Duffield is a feeble-minded person, and was so from his birth, and at the time of the execution of said mortgage by said deceased, that the statute of limitations did not run against him, and if not as to him, that it would not run against appellant Anna R. Riddle. In view of what we have already said, this question is not before us for determination. That question can only arise in a proceeding to which the purchaser of said premises is a party.

It is next insisted that “the court excluded proper evidence offered by the claimants.” At a term subsequent to the entry of the decree for the sale of real estate to pay debts, appellants made a motion to set aside the default against Anna R. Riddle and for leave to file an answer instanter to the petition to sell real estate to pay debts. This motion was overruled. The evidence which it is contended the court erroneously refused to consider was an affidavit filed by appellant Anna B. Biddle in support of said motion. There was no error in this, ruling. As heretofore stated, the appeal for a review of the rulings of the probate court on the petition to sell real estate to pay debts, was not to the circuit court.

So far as appellant Anna R. Riddle is concerned, not having filed her claim in the probate court within the time provided by law, she is barred from any right or interest in the funds in the hands of said administrator. However, the rights of appellant Joseph H. Duffield are not so foreclosed. Clause 6 of paragraph 71 of chapter 3 of the statute above referred to provides among other things' that “infants, persons of unsound mind . . . shall have the term of one year after their respective disabilities are removed, to exhibit their claims.”

Under the provision of said statute, Joseph H. Duffield, through his conservator, has the right to file in the probate court a claim for his interest in said notes and mortgage, and have the same adjudicated, and whatever amount, if any, is found to be owing him, to have the same paid along with other probated claims of the same class, out of the funds in the hands of said administrator.

It therefore follows that the judgment of the circuit court should be affirmed, not, however, as barring the claim of appellant Joseph H. Duffield, provided the same is filed, adjudicated and allowed in the court and pursuant to the method provided by statute. If so adjudicated, and the finding and judgment thereon be in favor of said claim, then it would be classified and paid out of the funds in the hands of appellee as such administrator, along with the other claims of the same class.

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

Judgment affirmed.


author: Mr. Justice Jones

text:
    Helen Olander, Appellee, v. Tessing S. F. Johnson, Appellant.
    Gen. No. 8,123.

      Heard in this court at the October term, 1929.
    Opinion filed June 11, 1930.
    Donovan, Brat & Gray and Edward W. Rawlins, for appellant.
    Snapp, Heise & Snapp, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

This is an appeal from a judgment for $8,500 and costs recovered by Helen Olander, plaintiff, against Tessing S. F. Johnson, defendant, a physician and surgeon. A suit was instituted to recover damages claimed on account of defendant’s alleged negligence in leaving a laparotomy sponge in plaintiff’s body in the course of an abdominal operation. Plaintiff suffered intensely for several months after the operation and a sponge was finally found in and removed from her abdomen. If she is entitled to a judgment, this one is not excessive.

There is little dispute as to the material facts. Defendant is an experienced surgeon and has practiced his profession in Joliet continuously since 1920. It appears that approximately 60 per cent of his professional work has been surgery, and that he has performed 800 or 900 operations at the hospital hereinafter mentioned. Plaintiff consulted him as to her physical condition, and upon an examination, he concluded she was suffering from an appendix condition and a retroverted uterus, for which he advised an operation. He gave her an admittance slip to St. Joseph’s Hospital, a charitable institution, operated by the Franciscan Order at Joliet. The hospital is recognized by the American College of Surgeons as being modern, and supplied with latest and best equipment.

Upon plaintiff’s arrival at the hospital, she was prepared for the operation, and on the following day was operated on by defendant. In the performance of the operation, he was assisted by the regular operating-room staff of the hospital, consisting of Dr. Chapman, an interne, Sister Antonella, Sister Julia, and Sister Rogaría. Miss Schmitz, an employee of the hospital, was also present. All of said assistants were connected with or employed by the hospital. None of them were in defendant’s employ. Dr. Chapman’s duty was to assist the operating surgeons in all operations. He held the retractors that kept the wound open and handed instruments to the operating surgeons. Sister Antonella administered anaesthetics and made records of sponge counts immediately after each operation. It was the duty of Sister Julia to hand the clean or sterile sponges to the operating surgeon as needed, and to keep count of the sponges. It was the duty of Sister Rogaría to take charge of and keep count of the used sponges.

The method of counting and keeping track of all sponges used at operations was as follows: The sponges were made by the nurses at the hospital, counted, put up in packages, and sterilized. Laparotomy sponges are larger than the other sponges used, and are put in packages of 3. The smaller sponges are put up in packages of 12. Before beginning an operation, the sponges are brought into the operating room by the nurse whose duty it is to handle clean sponges. They are counted by her, and as needed, are handed by her to the surgeon, forceps being first attached to the laparatomy sponges. As the sponges are used, they are thrown into a receptacle by the surgeon and taken charge of by a nurse, who places the small sponges in piles of 12, and the used laparotomy sponges in piles of 3. When the operation is finished, and before the incision is closed, the unused sponges are counted by the nurse in charge thereof, and the used sponges are counted by the other nurse. The total of the two counts is compared with the number brought into the operating-room, in order to ascertain if all sponges are accounted for. The nurse in charge of the clean sponges announces whether or not the count is correct. If announced correct, the anaesthetist immediately makes a written memorandum of the count on the operation record. This method was followed not only by defendant, but by all surgeons operating at St. Joseph’s Hospital, and was used in the instant case. The small sponges are used to sponge up the blood and secretions, and in operations upon the appendix or uterus the large pads, or laparotomy sponges, are placed in the abdomen to keep back the mesentery or contents of the abdomen.

In operating on plaintiff, the testimony shows that Dr. Johnson made the usual midline incision about six inches in length below the navel, and after exposing the contents of the abdomen, packed the intestines away with hot laparotomy sponges. He then removed the appendix and performed an operation upon the womb. Defendant testified that he then inspected the field of operation, saw all of the pads, and after asking for the sponge count, which was reported correct, he had no further occasion to explore the abdomen ; that such further exploration would have been dangerous, in view of the highly inflamed appendix, and that there was also danger of infection; that approximately 15 or 20 sponges had been used, and after asking for the sponge count and finding they had all been removed, he closed the abdomen in the usual manner, and did not intentionally leave a sponge in it.

Sister Julia testified that in the course of the operation she handed the clean sponges to defendant, as he called for them; that when the operation was finished, she counted the clean sponges which had been brought in but not used; that Sister Bogaría counted the used sponges and the two counts agreed with the number brought in at the start of the operation; that she compared the count before defendant sewed up the wound, and the count was correct and all sponges accounted for; that she reported to defendant that the sponge count was correct, and that Sister Antonella, the anaesthetist, made a record thereof. She also testified •that the laparotomy sponges which were used had forceps attached when they were handed to the doctor, which forceps were later removed by the nurse having charge of the used sponges; and that there are no other pads in the operating-room, except those brought in for the particular operation. The sponge or pad later found in plaintiff’s abdomen had no forceps attached.

The testimony shows that in an abdominal operation, it is necessary to use sponges to wall off the bowels; otherwise, an" extensive operation could not be performed; that the sponges become soaked with blood and secretions and may feel like any other tissue; that occasionally they become rolled up in the abdomen behind the bowels; that there are numerous coils of intestines and the sponges cannot be seen or felt readily; and that it is sometimes almost impossible to distinguish the sponges from the tissues of the abdomen or to locate them. A surgeon of large experience testified that when the abdomen is opened in an operation, the surgeon must think fast and quick; that relieving the surgeon of the responsibility of looking after the sponges enables him to concentrate his thoughts upon the operative technique, and thereby do a better, safer, and quicker operation than he could possibly do if he had to account for the sponges. Defendant also testified in substance that when the abdomen is opened, the operating surgeon must devote his entire time to taking care of the conditions that obtain there, and that it would jeopardize the life of the patient for the surgeon to take the time to make and keep a count and make a record of the sponges used.

The duty which a physician and surgeon owes his patient is to bring to the case at hand that degree of knowledge, skill, and care which a good physician and surgeon would bring to a similar case under like circumstances. While this rule, on the one hand, does not exact the highest degree of skill and proficiency attainable in the profession, it does not contemplate merely average merit. (Holtzman v. Hoy, 118 Ill. 534; 21 R. C. L. Physicians and Surgeons, sec. 27.) To this extent he is liable and no further. He is not required to possess the highest, but reasonable skill. The burden of proof is upon the plaintiff in an action for malpractice to show the want of such care, skill, and diligence and also to show that the injury complained of resulted from failure to exercise those requisites. (McKee v. Allen, 94 Ill. App. 147; Goodman, v. Bigler, 133 Ill. App. 301; 21 R. C. L. Physicians and Surgeons, sec. 49.)

Negligence is always a question of fact that must be alleged and proved as averred. It cannot be supported by a mere conjecture or surmise, but must be made referable to some specific cause or defect. (McCormick Harvesting Machine Co. v. Gabris, 130 Ill. App. 624, 631; Pioneer Fire Proof Construction Co. v. Sandberg, 98 Ill. App. 36.)

Before a plaintiff can recover in a malpractice case, it must be shown by affirmative evidence, first, that defendant was unskilful and negligent, and second, that his want of skill and care caused injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of a jury. (Ewing v. Goode, 78 Fed. 442; Moline v. Christie, 180 Ill. App. 334; Wallace v. Yudelson, 244 Ill. App. 320; Sims v. Parker, 41 Ill. App. 284; McKee v. Allen, supra; Phebus v. Mather, 181 Ill. App. 274; Graiziger v. Henssler, 229 Ill. App. 365.)

Mere conjecture or supposition should not be sufficient to overcome the presumption in favor of the attending physician. Alleged negligence and resulting injury must be proved as averred. A physician is not an insurer. (Goodman v. Bigler, supra; Sims v. Parker, supra; Blodgett v. Nevius, 189 Ill. App. 544; Wallace v. Yudelson, supra; Graiziger v. Henssler, supra.) Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. (Sims v. Parker, supra; Moline v. Christie, supra; Blodgett v. Nevius, supra.)

The doctrine of res ipsa loquitur is not applicable to situations like the case at bar (Guell v. Tenney, 262 Mass. 54, 159 N. E. 451; Funk v. Bonham [Ind. App.], 151 N. E. 22; Goodman v. Bigler, supra; Graiziger v. Henssler, supra), for unless the accident or injury sustained by the plaintiff bespeaks the defendant’s wrong, there is no proof of culpable negligence. (Chicago & E. I. R. Co. v. Reilly, 212 Ill. 506.)

As a general rule, there must be expert testimony to show that a bad result was caused by the alleged unskilful or negligent act. (Moline v. Christie, supra; Goodman v. Bigler, supra; Kruger v. McGaughey, 149 Ill. App. 440; Nelson v. Sandell, 202 Iowa 109, 209 N. W. 440; 46 A. L. R. 1447.) The leaving of a sponge by a physician in a patient is not negligence per se. (Funk v. Bonham, supra; Guell v. Tenney, supra; Sims v. Parker, supra.)

The record shows that after Dr. Johnson had removed plaintiff’s appendix and operated upon the womb, he made an inspection of the field of operation, and did not find any sponge left in her body, and that to have made a further exploration would have been dangerous to the patient. The uncontradicted testimony also shows that it is for the patient’s best interests that an operating surgeon be enabled to devote his time and attention almost exclusively to the operation at hand, and to depend in a large measure upon the nurses in attendance for the sponge and instrument count; otherwise, the surgeon’s attention might be distracted from the more vital matters and the life of the patient jeopardized. While defendant testified that in his opinion an operating surgeon was entitled to rely upon the sponge count announced by the nurses in attendance, the testimony does not show that in this case he wholly relied upon the nurses’ report of the sponge count, as he testified he inspected the field of operation himself.

Sister Bogaría did not testify. She had severed her connection with the Franciscan Order, and her whereabouts were unknown at the time of the trial. Sister Julia testified that she counted the unused sponges; that Sister Bogaría counted the used sponges and reported the number to her; that she then checked the counts with the number of sponges brought into the room and all sponges were accounted for.

Notwithstanding the apparent care exercised by the nurses to make an accurate count of the sponges, a mistake was made by one of them. It is immaterial which one made it. The crux of the case is whether or not the defendant is responsible for the mistake and can be mulcted in damages on account of it. In determining the question of liability, it is necessary to inquire as to his duty in the premises. In considering this question, it is important to remember that hospitals are classified in legislation and by text-writers as (1) public hospitals, (2) charitable hospitals, and (3) private hospitals. A public hospital is one owned by the government or some branch thereof, and is devoted chiefly to public uses and purposes, in the absence of statutory provision to the contrary. It is not liable for injuries to a patient caused by the negligence or misconduct of any of its employees or agents. A charitable hospital is one organized not for the purpose of making profit, but is maintained primarily for charitable purposes. Such a hospital is not liable for the torts and omissions of its professional staff, unless it has failed to exercise due care in selecting it. A private hospital is one which is founded and maintained by a private person or corporation. Its liability for damages growing out of negligence is the same as that of natural persons.

Generally an operating surgeon is not legally responsible for the mistake of a nurse not his employee, where an operation is performed at a hospital not owned or controlled by the surgeon. (Funk v. Bonham, supra; Guell v. Terney, supra; Blackburn v. Baker, 237 N. Y. S. 611; Hale v. Atkins, 215 Mo. App. 380, 256 S. W. 544.)

All classes of hospitals have at least one power in common. It is the right to prescribe reasonable rules for the conduct of the institution and may standardize the hospital. (Harris v. Thomas [Tex. Civ. App.], 217 S. W. 1068.) The hospital at which plaintiff was operated was conducted by the Franciscan Order of the Roman Catholic Church. It was a charitable institution, and maintained its own corps of nurses, internes, and staff officers. A physician who used the operating room was required by the rules of the hospital to employ the equipment of the hospital. In the case of the particular operation, it included the nurses in attendance, the sponges supplied, and the records kept. Every physician who avails himself of the privilege of operating in a hospital of this character must conform to the rules of the hospital. Unless he does, he may be deprived of the privilege of practicing his profession at that institution. (People v. Julia F. Burnham Hospital, 71 Ill. App. 246.)

Charitable hospitals being generally established through motives of philanthropy, the right of admission rests solely in the discretion of the hospital authorities. No one has individually a right to demand admission. (McDonald v. Massachusetts General Hospital, 120 Mass. 432.) But if he is admitted, he impliedly consents to abide by the reasonable rules and regulations of the hospital the same as his physician does.

It is indisputable that the operation involved in this case was conducted, so far as the defendant’s conduct was concerned, in strict accordance with the established rules and customs of the hospital. It is not denied that he endeavored to see that the rules of the institution concerning the count of sponges were carefully and correctly carried out. That a mistake was made by one of the nurses was no fault of his and appears to have been made in spite of his caution. He inquired about the count and was informed that it was correct. He made an ocular examination without discovering the error. He followed the approved method of examination unless it is known that a sponge is missing. Under all the circumstances, we do not see how he could have been expected to do more.

The trial court, however, in its instructions to the jury, took the view that it is the absolute duty of the surgeon to know that all sponges have been removed from the patient’s body. In accordance with this view, the court gave a number of instructions, of which plaintiff’s Instruction No. 9 is a type. It is as follows:

“The court instructs the jury that a surgical operation begins when the opening is made into the body of the patient and ends when the opening has been closed. The removal of the sponges inserted by the surgeon is a part of the operation and if the jury believe from the evidence that the defendant inserted and then negligently left a pad or sponge in plaintiff’s body, and if you further find from the evidence that plaintiff thereby sustained damage, then the plaintiff is entitled to recover. ’ ’

This instruction not only directs a verdict, but places a greater duty upon the surgeon than is devolved upon him. It ignores the necessity of his complying with the reasonable rules of the hospital and of the patient’s implied acceptance of the condition of her admission to the hospital.

As we have before said, it is difficult for us to perceive any lack or want of care on the part of defendant, with respect to the removal of the sponges from plaintiff’s body. Because of our view of the case, the judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    George A. Lawrence, Appellant, v. Elmwood Elevator Company, Appellee.
    Gen. No. 8,049.

      Heard in this court at the May term, 1929.
    Opinion filed December 13, 1929.
    Rehearing denied June 24, 1930.
    Lawrence, Nelson & Stuart, Wallace J. Black and Clyde M. West, for appellant.
    Todd, Morgan, Pendarvis & Arber, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Plaintiff instituted this proceeding to recover the market value of 5,767 bushels of corn grown on his land and sold by his tenant to the defendant before rent was paid. The original declaration consisted of a single count in trover. An additional count was filed seeking to recover" because of an alleged landlord’s lien on the crops of the year 1926.

At the close of plaintiff’s testimony the jury was instructed to find defendant not guilty under the first count of the declaration. The case went to the jury on the second count and a verdict was rendered in favor of the defendant. This appeal is from a .judgment rendered thereon.

The record shows that plaintiff leased to his tenant, Clinton Bane, approximately 1,000 acres of land for a term of years beginning March 1, 1918, at $6,500 a year. The tenancy and possession under the lease continued to September 1927. On February 21, 1927, Bane owed plaintiff for back rentals, not including the rent for the year 1926, the sum of $13,500 as evidenced by a promissory note. On that day Bane executed and delivered to plaintiff another promissory note for $9,000, due February 1, 1928. This note included the rent for the year 1926, which had been reduced by agreement to $5,500 and also $3,500 which had been placed as a credit upon the said $13,500 note. The note for $9,000 was secured by chattel mortgage of even date therewith. The mortgage covered numerous items of personal property including a large amount of livestock, as well as the corn and other crops. It contained a provision that until default be made by the mortgagor, it should be lawful for Bane to retain possession of the said goods and chattels and “to use and enjoy the same.”

The testimony discloses that on or about June 15, 1927, Bane sold and delivered to defendant elevator company 5,763 bushels and 20 pounds of corn for the sum of $4,440.79. This grain had been raised on the premises of plaintiff, shelled on his land, and hauled to defendant’s elevator. The number of bushels and its value are not questioned. The grain was delivered by Bane into the bins of the defendant and the testimony shows that when this suit was brought it had been shipped out by defendant and was not in its possession. Some time after the defendant received the grain, the plaintiff foreclosed the chattel mortgage executed by Bane, and realized about $5,000 from the sale thereunder.

Plaintiff cannot recover under the trover count because he had not reduced the grain to possession by levy of a distress warrant or otherwise. (Finney v. Harding, 136 Ill. 573; Frink v. Pratt, 130 Ill. 327.) Nor was his claim of lien under the chattel mortgage good against the defendant because the mortgage expressly gave the tenant the right to use and consume the corn. A chattel mortgage upon property of such nature that it will necessarily be consumed and destroyed by any legitimate use which may be made of it, is fraudulent as a matter of law and void as to third persons if the mortgage contains a provision that the mortgagor may retain possession of the property and use the same. (Tatty v. Schoenholz, 323 Ill. 232; Harris v. Wemple, 63 Ill. App. 577; 11 C. J. 567.) Corn on a farm is of such nature and it is therefore apparent that plaintiff could not recover under the first count. The court properly directed a verdict of not guilty upon that count.

The second count of the declaration raises the question as to the existence of a landlord’s lien for the rent of the year 1926. It is claimed that the plaintiff has no 'cause of action against the defendant because this suit was not begun within a period of six months after the expiration of the lease. The claim is based on section 31 of the Landlord and Tenant Act, Cahill’s St. ch. 80, ¶ 31, which provides that a landlord shall have a lien on the crops for his rent and that such lien shall continue for a period of six months after the expiration of the term. The lease expired March 1, 1927. The lien therefore expired August 31, 1927. Lawrence testified that Buck told him, about the middle of August, 1927, the corn had been shipped out long ago. Buck made no denial of the statement, although he was on the witness stand after Lawrence had testified. Under such circumstances a landlord does not lose his lien and he had a remedy against one who purchases the crops from the tenant with knowledge of the tenancy. (Prettyman v. Unland, 77 Ill. 206.)

The weight of the testimony shows that the agents and officers of defendant knew that Bane was the tenant of Lawrence. If a purchaser of crops knows that they were grown upon rented premises, he is put upon inquiry as to the landlord’s lien for unpaid rent. A landlord’s lien is not defeated by the tenant’s sale of the crop to a person who has notice. One who purchases grain from a tenant with knowledge that he is a tenant is not a bona fide purchaser, but takes subject to the landlord’s lien. (Watt v. Scofield, 76 Ill. 261; Hunter v. Whitfield, 89 Ill. 229; Prettyman v. Unland, supra.) Where one purchases from a tenant with knowledge of a lien, there exists a right of action in the landlord. Case is a proper remedy but it must’ appear that the property or its proceeds has been disposed of so that the lien cannot be enforced against either. (Nelson v. First Nat. Bank of La Harpe, 184 Ill. App. 349.)

The inclusion of $5,500 for the rent of 1926 in the note secured by chattel mortgage did not constitute a waiver of the lien for the rent in the absence of an express agreement to that effect. (Atkins v. Byrnes, 71 Ill. 326; 24 L. R A. 812.)

The fifth instruction told the jury that if they found from the evidence that defendant’s manager purchased the corn in question from Bane in the regular course of business and paid for it without any actual intention to defraud plaintiff of his lien and without notice of the plaintiff’s claim or knowledge of such facts or circumstances as would put a reasonably prudent man upon inquiry as to the nature and extent of plaintiff’s lien, if any, the defendant would be an innocent purchaser and the jury should find the defendant not guilty. The instruction directed a verdict and in effect required the jury to find for defendant, unless they found that defendant’s manager purchased the corn with an actual intent to defraud plaintiff of his lien. This is an erroneous expression of the law. It is not required that the plaintiff prove an actual fraud or even a fraudulent intent on the part of the defendant. (Nelson v. First Nat. Bank of La Harpe, supra.) But to the contrary, where a purchaser has notice of the existence of a tenancy, he is put upon inquiry and the burden is on him to show that he has reasonably discharged his duty in that regard. For the same reason the sixth and seventh instructions given on behalf of defendant are prejudicial. The eleventh instruction given on behalf of defendant correctly informed the jury that the amount realized by Lawrence from the sale under Bane’s chattel mortgage should be credited upon the note secured thereby.

For the errors above pointed out the judgment is reversed and the cause remanded.

Judgment reversed and remanded.


text:
    Leo Mongoven, Appellant, v. Edwin C. Watts et al., Appellees.
    Gen. No. 8,128.

      Heard in this court at the October term, 1929.
    Opinion filed February 3, 1930.
    Rehearing denied June 24, 1930.
    Monahan & Monahan, for appellant.
    Ralph J. Dady and Leslie A. Needham, for appellees. Sidney H. Block, Pro Se.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On April 18,1928, appellant filed a bill in the circuit court of Lake county, setting forth that on December 21, 1921, one Sarah Watts, since deceased, and appellee Edwin Gr. Watts, her husband, executed a promissory note for $20,000, due five years after date, with interest at the rate of 6 per cent per annum, payable to the order of themselves, and by them indorsed; that said notes were secured by a trust deed of even date, conveying certain described real estate, etc., which trust deed was filed for record in the recorder’s office of said county; that appellant was the legal holder and owner of said notes and trust deed; that no part of said principal sum or any interest thereon had been paid, praying foreclosure, etc. Appellee Edwin Gr. Watts, the husband of Sarah Watts, deceased, and appellees, the heirs of Sarah Watts, deceased, and of one Arthur E. Nugent, deceased, were made parties defendant to said bill.

A guardian ad litem was appointed to represent Mary F. Deming, Jr., infant defendant, and filed an answer, praying strict proof, etc. The joint and several answer of the adult defendants to said bill, appellees herein, as finally amended, sets forth in substance that appellant was claiming that in June, 1922, Arthur E. Nugent delivered the trust deed and notes above set forth to appellant, to be held by him as collateral security “upon some indebtedness or open account, not in writing, which complainant claims said Nugent owed complainant at the time of such delivery, or might thereafter owe complainant, . . . but these defendants state that if complainant ever lawfully obtained possession of said trust deed and interest and principal notes (which defendants deny) as such collateral security, such indebtedness, if any, . . . was on an open account, not in writing,” and that the same was barred by the statute of limitations.

A replication being filed to said answer, the cause was referred to a special master to take the evidence and to report the same, with his conclusions thereon. Said special master took and reported the evidence in said cause, with the recommendation that said bill be dismissed. Exceptions thereto by appellant were overruled, and a decree was entered, dismissing said bill for want of equity. To reverse said decree, this appeal is prosecuted.

The evidence discloses, and it is conceded by the parties that the premises covered by said trust deed were purchased by Arthur E. Nugent in 1920, for some $27,000; that on December 21,1921, Nugent with-put consideration, conveyed said premises to his sister, Sarah Watts; that on the same day Sarah Watts and appellee Edwin G-. Watts, her husband, at the request of Nugent, executed the note and trust deed here in question; that the deed from Nugent to his sister, and said trust deed were duly recorded in said county; that said notes and trust deed were drawn by Nugent’s attorney, and upon the execution thereof, were delivered to Nugent; that nothing was due from the Wattses to Nugent at the time of the execution of said notes and trust deed, and that he, Nugent, paid nothing therefor. In June, 1922, said notes and trust deed were delivered to appellant, and have been in his possession or control up to the filing of said bill; that on April 21, 1924, Sarah Watts and her husband, reconveyed said premises to Nugent subject to said trust deed, and without consideration. Counsel for appellant in their brief and argument, at page 13, say:

“The question this court is called on to determine is whether the trust deed and notes in question were placed in the hands of the complainant as collateral security for the repayment to complainant of some sum of money advanced.or to be advanced by him, the. amount of which is not established.”

On the other hand, counsel for appellees insist: (1) That said “securities were pledged; not given in payment or satisfaction of any debt, and Nugent retained general title thereto.” (2) That “the papers having been put up as a pledge, the burden of proving the amount of the indebtedness, if any, is on appellant.”

Two principal questions therefore, arise on the record: First, whether or not said securities were delivered to appellant as a pledge for an existing in- • debtedness or an indebtedness thereafter to be created, and, second, if said securities were delivered to appellant as such pledge on whom rests the burden of proving the amount of the same.

Before considering these questions, it will be necessary to determine the competency of appellant as a witness in his own behalf. Appellant testified, subject to objection, to the effect that in June, 1922, at the time said notes and trust deed were delivered to him, Nugent owed him $21,000, which, with accrued interest to the time of the hearing, amounted to $32,805. Appellees, the owners of the real estate in question, were defending as the heirs of Nugent. Appellant was therefore not a competent witness in his own behalf. Cahill’s St. ch. 51, ¶ 2; Forbes v. Snyder, 94 Ill. 374-378; Michael v. Mace, 137 Ill. 485-496; Harris v. Young, 298 Ill. 319-331; Halladay v. Blair, 223 Ill. App. 609, 611-612.

The only remaining evidence in the record with reference to what was said and done at the time said notes and trust deed were delivered to appellant is contained in the testimony of Rudolph Frankenstein and C. M. Strening, witnesses on the part of appellant.

Frankenstein, an attorney, testified that he saw Sarah Watts and appellee Edwin G-. Watts sign said note and trust deed; that when signed, they were delivered to Nugent; that Nugent turned them over to the witness, and that he caused the trust deed to be recorded. He.further testified: “After I had held the trust deed and notes several months, Mr. Nugent came in my office in the Ashland block with two gentlemen, and the notes and trust deed were turned over to one of the two gentlemen. If my recollection serves me right, one of the gentlemen was Leo Mongoven. . . . At the time Arthur Nugent turned these notes over to Mongoven, Nugent said he was either borrowing money or had received money from Mongoven, and these notes and trust deed were turned over to Mongoven as indemnity or security for the advance. . . . I don’t recall the amount, and I don’t recall what was said about that.”

Strening testified that he was an attorney, and became acquainted with Nugent about 1917 or 1918; that he had known appellant since about 1920; that he first saw the trust deed and notes the latter part of May or the first of June, 1922, in Frankenstein’s office; that Frankenstein handed the notes and trust deed to Nu-gent, “who in turn handed it to me and I gave it to Mongoven. At that time Mr. Nugent said to Mr. Mongoven, ‘In case anything happens to me, these will protect you for the money I owe you.’ ” On cross-examination he further testified: “Nugent said to me that he was indebted to Mongoven and he wanted to protect Mongoven in case anything might happen to him. ... I knew Nugent was protecting Mongoven on money he owed Mongoven. I don’t know anything about how much. I do not know whether it was $100 or $100,000, but I knew it was something more than $100. How I knew that,.... I saw Mongoven give Nugent around $2,500 or $3,000 at that time. That occurred about a year or so before this. That is the only time I ever saw Mongoven give Nugent any money. Neither Nugent nor Mongoven said anything on this day as to how much he was to be protected on this mortgage.”

Eliminating the testimony of appellant, the foregoing is, in substance, all of the evidence with reference to what was said and done at the time said notes were turned over to appellant. Counsel for appellant insist that, in the absence of other proof, it would be presumed that the amount to be secured was the amount of said note.

Appellees’ position that the notes and trust deed were pledged to appellant to protect or secure him for a past or future indebtedness, is well taken. Peacock v. Phillips, 247 Ill. 467; Farson v. Gilbert, 114 Ill. App. 17-19; 21 R. C. L., p. 633, par. 3; 31 Cyc., p. 797, par. 13. Said notes and trust deed having been pledged to appellant, the question next arises as to who has the burden of proof in establishing the amount of the indebtedness for which said pledge is held.

“The lien is measured by the extent of the advances and the amount of the debt.” Freutel v. Schmitz, 299 Ill. 320-323, citing Collins v. Carlile, 13 Ill. 254; Darst v. Gale, 83 Ill. 136. See also Schaeppi v. Glade, 195 Ill. 62-66.

This point is not well taken. The evidence offered by appellant discloses that said notes and trust deed were not delivered to appellant as a pledge or payment for any specific amount; in other words, the evidence discloses that the parties did not undertake at that time to fix. the amount of said indebtedness.

Appellant also insists that he is in the position of a purchaser for value “in the ordinary course of trade.” An examination of the quoted testimony of the witnesses Frankenstein and Strening clearly discloses that this point is not well taken.

Counsel for appellees insist, not only that appellant is not a holder of said notes in due course, but that there is no evidence in the record which would warrant any relief whatever to appellant on his bill filed herein. This position of appellees is untenable. According to the undisputed testimony of Strening, some year or so prior to the delivery of said notes and trust deed to appellant, he “saw Mongoven give Nugent around $2,500 or $3,000. ’ ’ This testimony is in harmony with" appellees’ contention that the securities were pledged, not given in payment or satisfaction of any debt.

'In connection with appellee’s plea of the statute of limitations, it is only necessary to say that no reference whatever was made to said plea in their brief and argument. It will therefore be taken as waived. It might be observed, however, that in view of the fact that Nugent had delivered said securities as collateral or as a pledge to secure appellant for sums advanced or to be advanced by him, and which note did not fall due by its terms until December 21, 1926, the plea of the statute of limitations would not be good.

Appellees also insist against the right of appellant to foreclose said trust deed that the reconveyance by the Wattses to Nugent created a merger and rendered said trust deed of none effect. The evidence discloses that, prior to said reconveyance, Nugent had pledged said notes and trust deed to appellant. There would therefore be no merger, as against appellant. Edgerton v. Young, 43 Ill. 464-468; Dunphy v. Riddle, 86 Ill. 22-28; Farrand v. Long, 184 Ill. 100-108; Moffet v. Farwell, 222 Ill. 543-548.

The law recognizes the right of persons to pledge personal property or securities for past indebtedness, or for future advances. Farson v. Gilbert, 114 Ill. App. 17-19; 21 R. C. L., p. 633, par. 3; 31 Cyc., p. 789, par. 1; 31 Cyc., p. 797, par. 13. A lien of this character “is measured by the extent of the advances and the amount of the debt.” Freutel v. Schmitz, 299 Ill. 320-323, citing Collins v. Carlile, 13 Ill. 254; Darst v. Gale, 83 Ill. 136. See also Schaeppi v. Glade, 195 Ill. 62-66.

The next question to be determined is, for what amount has appellant a lien, and can it be enforced in this proceeding.

The only competent evidence that appellant offered as to the amount of his claim is the testimony of Strening. Under his testimony the amount could not be more than $2,500. Appellant would be entitled to interest on this amount at the rate of 5 per cent, per annum from June, 1921, being one year prior to the delivery of said securities by Nugent. As the date of the month was not fixed by the testimony, June 15, 1921, may be taken as the date from which interest shall be computed.

Under the holding of the Supreme Court in Jenkins v. International Bank, 111 Ill. 462-480, and Peacock v. Phillips, 247 Ill. 467, appellant has the right, as such pledgee, to foreclose said trust deed for the amount of his lien as against appellees, the owners of the premises in question as the heirs of Arthur E. Nugent, deceased, the amount of the recovery, however, to be limited to $2,500, with interest thereon at the rate of 5 per cent per annum from June 15, 1921.

For the reasons above set forth, the judgment of the trial Court will be reversed and the cause will be remanded, with directions to sustain exceptions to the special master’s report in part, and to enter a decree for foreclosure in favor of appellant for the amount above specified.

Reversed and remanded with directions.