author: Mr. Justice Shurtlefe

text:
    Lee McCarty, Executor of the Last Will and Testament of Robert McCarty, Deceased, Appellee, v. Clyde McCarty, Appellant.
    Gen. No. 8,678.
    Opinion filed January 16, 1933.
    Rehearing denied April 5, 1933.
    Funk & McKeene, for appellant.
    Bellatti, S amuele & Moriarty, for appellee.
   Mr. Justice Shurtlefe

delivered the opinion of the court.

This is a proceeding in forcible entry and detainer, brought in the circuit court of Scott county by Lee McCarty, executor of the last will and testament of Robert McCarty, deceased, against Clyde McCarty, to recover possession of the west half of the northeast quarter of section 36 in towmship 14 north and range 12 west of the third principal meridian, Scott county, Illinois, a purely possessory action.

The facts are that Robert McCarty, father of the said Lee McCarty and Clyde McCarty, died testate on or about October 29, A. D. 1929, seized and possessed of the land in controversy and leaving to survive him as his only heirs at law and legatees nine children and six grandchildren, three of said grandchildren being minors. There were sufficient personal assets to pay the debts against his estate, and no necessity to sell land to pay his debts.

By the terms of his will he provided first, for the payment of his funeral expenses and debts; second, he gave to his children at his death all personal property owned by him, share and share alike; ‘1 Third— it is my will and I so direct that my executor hereinafter named sell all of my real estate within three years after my death, at public or private sale, as he may see fit, and in either case I give him full power to make a deed or deeds to the purchaser or purchasers, to vest a good title in either, and the proceeds of said sale after the payment and expenses of the sale to be equally divided between my children then living share and share alike, and the children that may be dead, leaving a child or children, surviving such child or children to take the share of the deceased parent.” Fourth, directs that his personal property be sold and the proceeds with any money after funeral expenses and debts are paid be divided as provided in clause two of the will; lastly, appoints Lee McCarty executor of said will and revokes all former wills.

In the third clause of the will is to be found the only provision or direction concerning the real estate of the testator — simply to sell and divide the proceeds among his children and their descendants.

At the time of the death of the said Robert McCarty, the defendant Clyde McCarty was in possession of the land in controversy under a lease between the said Robert McCarty and himself for the year beginning March 1, 1929, and ending March 1, 1930, and he continued to hold over as a tenant from year to year until the commencement of this suit. On November 28, 1931, the said Lee McCarty, executor of the last will and testament of the said Robert McCarty, deceased, caused to be served on the defendant Clyde McCarty a notice to terminate his tenancy and to deliver up possession of said premises to said executor on March 1, 1932. The defendant not surrendering possession of said premises to the said executor, this action was brought to the April, 1932, term of the circuit court of Scott county, a jury was waived and a trial had before the court. The court found that the plaintiff was entitled to the possession of the real estate described in the complaint filed in said cause and ordered that the plaintiff recover possession of said premises; that the defendant, Clyde McCarty, pay the costs of said proceeding and that a writ of possession issue, to the rendition of which judgment the defendant excepted and the record is brought by appellant to this court for review.

A great many cases in the Illinois reports are cited by counsel on either side and dissected, few of which have any bearing upon the exact issue raised in this case. It was laid down in Hill on Trustees (4th Am. Ed.) p. 732:

“For instance, if a testator devise lands to his executors to sell, the freehold will pass to them by the devise, coupled with the power; but if the devise be merely ‘that his executors shall sell’ the land, the executors take only a power and the freehold vests in the heir by descent, and so it seems to be the better opinion that a devise of land to be sold by the executors, without any words of direct gift, will invest them with a power only and not pass the legal estate.” This rule is supported by a great many English authorities.

The same rule is laid down in Perry on Trusts (6th ed.) vol. one, § 398; Perry on Trusts (6th ed.) volume two, §§765, 769 and 789; and 31 Cyc. 1091. The same principle is enunciated in 40 Cyc. 1820 and 1823. The following cases set out in substance the same rule: Peters v. Beverly, 10 Pet. (U. S.) 532; Olsen v. Weber, 194 Iowa 512; same case 27 A. L. R. 1370; De Charette v. St. Matthews Bank & Trust Co., 214 Ky. 400, 283 S. W. 410, found in 50 A. L. R. 34; and Trustees of Presbyterian Church v. Mize. 181 Ky. 567, 205 S. W. 674, found in 2 A. L. R. 1237.

But the entire question as raised in the case at bar has been passed upon by the Supreme Court of this State in Lambert v. Harvey, 100 Ill. 338, where the court say:

“Catharine S. Harvey and Alma W. Kingsley, defendants in error, obtained a judgment in an action of ejectment in the Pike county circuit court, at its April term, 1880, against James W. Lambert and James Sharp, the plaintiffs in error, for the recovery of certain real estate in said county, to reverse which the present writ of error is prosecuted.

“Defendants in error deraign title to the land in controversy through their father, Silas E. Shepherd, who died seized of the premises on the 12th day of October, 1877, leaving a widow, and defendants in error, his only children and heirs at law. It is claimed by plaintiffs in error, that under the will of the said Silas E. Shepherd, Catharine S. Harvey alone acquired the legal title to the premises in controversy, and hence there was no right of recovery in the names of both defendants in error, and this really is the only question presented by the record which we regard of sufficient importance to consider, — indeed, it may be said that it is the only question about which there is any just ground for controversy.

“The provisions of the will relied on for showing title in Mrs. Harvey alone, are as follows, to-wit:

“ ‘Item 7. As soon after the death of my said wife as it may conveniently and advantageously be done, I direct that all accounts, notes, bonds and judgments be collected, and all property, both real and personal and mixed, be sold, and after defraying the expenses of executing this will, I direct that my daughter Alma W. Kingsley be paid $.1000, and that the remainder of my entire estate shall be given to my daughter Catharine S. Harvey, aforesaid.

“ ‘Item 8. If my daughter Catharine shall not be living at the time this will shall be executed, I direct that which is herein bequeathed to her shall be given to her daughter, Alma Harvey.’

“Her appointment as executrix, and these two items of the will, furnish the only grounds for the position that she took the exclusive legal title to the land in controversy.

“The testator obviously intended that the disposition of his estate made by the will should not take effect until after the death of his wife, — or, in other words, it was his intention that no division of the estate should take place until after her death, and that when that event occurred such division was to be made with reference to the condition of things then existing’, and not with reference to the condition of things at the time of the testator’s death. Whether Mrs. Harvey was to ultimately take any beneficial interest under the will, depended upon the contingency of her outliving the widow; for if the widow survived her, the daughter of Mrs. Harvey was to take under the will what her mother would otherwise have taken had she survived the widow. That the rights of the parties, so far as Mrs. Harvey and her daughter are concerned, were to be determined by the condition of things at the time of the widow’s death, clearly appears from the 8th item of the will above cited. The testator declares, that ‘if my daughter Catharine shall not be living at the time this will shall be executed, I direct that which is herein bequeathed to her shall be given to her daughter, Alma Harvey.’ By the expression ‘at the time this will shall be executed,’ the testator evidently refers to the time of converting the estate into money and distributing it under the will, which could not be done until after the widow’s death, and whether Mrs. Harvey or her daughter would take at this time, depended entirely upon the contingency already stated.

“The will does not, specifically or by necessary implication, give the land of the testator, or any portion of it, to either of the daughters, and hence the legal title devolved by descent on both of them as tenants in common, and the suit was therefore properly brought in both their names.

“It is suggested, however, that inasmuch as the will directs the executrix to sell and convert the real estate into money, Mrs. Harvey, by implication, took the fee. We do not think so. It is true there is a class of cases where executors are held to take the legal estate, by implication. This occurs where they are required to perform certain duties with respect to realty which can only be performed by one clothed with the legal title. But there is no just ground for such a construction in the present case. A mere power to sell is all that was necessary in this case to carry into effect the objects of the will, and such a power only was conferred.”

This same rule has been followed in this state in Drake v. Steele, 242 Ill. 301; Emmerson v. Merritt, 249 Ill. 538; Buckner v. Carr, 302 Ill. 378; Knight v. Gregory, 333 Ill. 643, and Lawson v. Illinois Merchants Trust Co., 337 Ill. 49.

In Buckner v. Carr, supra, the court held: “A power of sale of lands given to executors by a will which expressed no object for the sale was held, where there were not sufficient personal assets to pay the debts and legacies, to be a power coupled with a trust, of which a court of equity has jurisdiction. (Wardwell v. McDowell, 31 Ill. 364.) Where full power is granted to and the duty imposed upon an executrix to sell and convey real estate and distribute the proceeds to legatees a trust is created. (Greenwood v. Greenwood, 178 Ill. 387.) Since the executor is directed to sell and convey real estate and must distribute the proceeds, active duties are imposed on him and the trust is an active trust. It is true that the executor under this will does not take the legal title to the land, for his only duty is to sell the land as directed under the power given him by the will and to distribute the proceeds among the legatees. (Emmerson v. Merritt, 249 Ill. 538; Lambert v. Harvey, 100 id. 338.) However, this is immaterial, because, as was said in Ebey v. Adams, 135 Ill. 80, quoting from Baker v. Copenbarger, supra: ‘ “The legal title to the land is held, in trust for the purposes specified in the will, whether the title is left by the will to descend to the heir by operation of law or by the will it is vested in a trustee.” ... In either event the title would be divested upon the execution of the power of sale. ’ The conversion takes effect at the death of the testator; the gift to his children is a bequest of money; they have no interest in the land, and therefore no title upon which they can maintain a bill for partition. In a similar case it was said that a good reason for sustaining the demurrer and dismissing the bill was that the beneficiaries under the will took the property not as real estate but as personal property. (Burbach v. Burbach, 217 Ill. 547.) In this case, as in that, it was not left to the discretion of the executor to sell or not, but it was the intention of the testator that there should be a sale of the real estate and a division of the proceeds, which would be personal property and not a proper subject for a bill of partition.”

In Greenwood v. Greenwood, cited supra, a part of the power to the executrix was “giving and granting unto her (executrix) full power to take possession of and in all things manage and control my said estate during her executorship, the same as I could if living,” and, of course, effected on active trust.

Buckner v. Carr, supra, arose on a bill by heirs to partition the land, and the real meaning of the opinion of the court in that case is, by the language used, that the legal title, whether in the executrix or the heirs, was held in trust, subject to the direction to sell. The court had already held: “It is true that the executor under this will does not take the legal title to the land, for his only duty is to sell the land as directed under the power given him by the will and to distribute the proceeds among the legatees,” citing Emmerson v. Merritt, supra, and Lambert v. Harvey, supra.

In Lawson v. Illinois Merchants Trust Co., supra, the court held:

“The gift to the children of Iver Lawson was not subject to any intervening estate but was to them directly, the real estate subject to the widow’s right to one-third of the net income. She had no interest in the personal estate given them and the trustees took no title thereto. They were given power to sell and convey to ‘purchasers,’ — not to the devisees, — and to apply so much of the children’s share as may be necessary to provide for them in a proper manner, with power to invest, in their discretion, as will be most advantageous to the interest of testator’s estate. The creation of trustees and the execution of the discretionary powers granted did not require vesting title in them, and the will did not vest them with title. (Defrees v. Brydon, 275 Ill. 530; Drake v. Steele, 242 id. 301; Black v. Bailey, 142 Ark. 201; Ducker v. Burnham, 146 Ill. 9; West v. Fitz, 109 id. 425; Page v. Davidson, 22 id. 111; Lambert v. Harvey, 100 id. 338; Emmerson v. Merritt, 249 id. 538; Knight v. Gregory, 333 id. 643.) The testator’s intention was that title defeasibly pass to his children without any conveyance from the trustees. (Harvey v. Ballard, 252 Ill. 57.) . . .

“As we construe the will no particular estate preceded the devise to testator’s children, except that the widow was to have for life one-third of the net income from the real property.”

Neither has the executor, with a power of sale, any possessory rights in or to the lands. In Ryan v. Duncan, 88 Ill. 144, it is held: “This court has repeatedly decided, that an administrator takes neither an estate, title nor interest in the realty, and that he can not support any possessory or real action, in law or equity, for the recovery or maintenance of possession or title, or to clear up title from clouds from adverse claims; that, if necessary to sell for the payment of debts, he must take the estate as he finds it, and if incumbered, or there be clouds upon the title, sell it subject thereto. Stone v. Wood, 16 Ill. 177; Smith v. McConnell, 17 id. 135; Walbridge v. Day, 31 id. 379; Phelps v. Funkhouser, 39 id. 402; Cutter v. Thompson, 51 id. 390; Le Moyne v. Quimby et al., 70 id. 399; Gridley v. Watson, 53 id. 186.” And in Anderson v. Shepard, 285 Ill. 544, it is held: “An executor has no estate in or power over the real estate of the testator by virtue of the law and has only such estate or power as is granted by the will.” The same rule is laid down in Roberts v. Baker, 65 Ill. App. 111.

From all of this authority it seems to be settled that the courts of this State follow the common law, and where the executor is clothed only with the power of sale and the distribution of the proceeds, with no power of management or other trust powers; he does not take the legal title to the lands, but the legal title descends to the heir and remains in abeyance, subject to the terms of the will.

It results, therefore, that the judgment of the circuit court of Scott county should be and is reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Owen J. Burns, Appellee, v. Bertha Salyers, Appellant.
    Gen. No. 8,701.

      Opinion filed January 16, 1933.
    Rehearing denied April 5, 1933.
    W. A. Doss and Carl I. Glasgow, for appellant.
    Cotton & Nichols, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit was instituted by Owen J. Burns, appellee, against Bertha Salyers, appellant, as a result of a collision between an automobile driven by a son of appellee and one driven by appellant. The collision occurred on what is known as State road number ten of this State, about three miles north and east of the City of Montieello, Piatt county, at 1:30 o’clock p. m., October 31, 1931. The son of appellee was driving appellee’s Buiclc four-door sedan automobile and was coming in a southerly direction, while appellant was driving her husband’s automobile and going in a northerly direction. On a trial by jury a verdict was obtained against appellant for $508.33.

In the front seat, riding with his son, was appellee, while in the rear seat were Irene, a daughter, 18 years old; Tom, a son, 12 years old; and Genevieve, a daughter, 10 years old.

Biding with appellant in the front seat of her husband’s Cadillac automobile was her 10-year-old daughter. No other persons were in this car.

Appellee’s contention is that at the place of the collision the road is not on any curve and is practically straight for some five or six hundred feet, affording a clear view; while appellant contends that there is a substantial and dangerous curve going up a hill and around this curve the view is greatly obstructed. There is no substantial controversy at all as to the place where the actual collision occurred on the pavement as regards the place thereon from a northerly and southerly direction, but there is a dispute on which side of the center of the pavement it occurred. Appellant contends that the cars came into contact on the east side of the black center line of the pavement at least about 11 inches, while appellee contends that the collision occurred about a foot on the west side of the center of the black line.

Appellant offered, but the court refused to admit in evidence, a plat of the pavement and surrounding points, made a day or two after the accident by one Bower, surveyor of Piatt county.

Appellee’s son was driving appellee’s car in a southerly direction and at a rate of speed of 35 to 45 miles an hour when he came upon a farm wagon loaded with coal, pulled by a team of horses driven by witness Darwin Musick, going in a southerly direction also on the west side of the center of the pavement, up a hill and around the curve on which the collision occurred. When appellee’s car went from the west side of the pavement to the east side of the pavement to pass around the wagon and team, but before appellee’s car had passed the team and got on the west side of the black line and center of the pavement, the collision occurred with appellant’s automobile, which was traveling in a northerly direction on the east side of the black line and center of the pavement. The collision occurred by the left front part of appellant’s automobile striking the left front part of appellee’s car.

The result of the collision was that appellant’s automobile traveled along in a northerly direction on the east side of the center of the black line for about 20 feet, and moved backwards down into a ditch on the east side about 10 feet east of the east line of the pavement with the car coming to rest in a westerly direction. Appellee’s car traveled in a southerly direction, slid over to the west side of the pavement and off of the pavement on the west side shoulder thereof. It ran along on the ground parallel with the west edge of the pavement for a distance of 77 feet, turned over on the way and slid on its side practically all-of the way, tearing up the earth and knocking down guide posts.

Appellee’s car was torn to pieces and the occupants thrown in various directions from the car, but none of the occupants was seriously injured.

Appellant’s car was damaged. The left front wheel was crushed, the tire was burst and the end of the left front side of the bumper was cut off or doubled over.

Appellee obtained a judgment against appellant for $508.83 and appellant has brought the record, by appeal, to this court for review.

The principal assignment of error is based upon the court’s refusal to admit in evidence three photographs, a plat and drawing. The witness was placed in one of the photographs by one of appellant’s counsel at a point where it was claimed by appellant that the cars came together. In the second photograph the witness was placed at the spot where it was claimed by counsel the hind wheel of appellant’s car went into the ditch; and in the third the witness was placed where it was claimed the tire on appellant’s car skidded on the hard road. These photographs were taken on the day following the accident and the witness was the driver of the wagon which both cars passed at the time of the accident. The drawing was an engineer’s map of the road, purporting to show by lines the paths and operation of the cars upon the highway at the time of the accident. It was caused to be drawn and produced under the supervision of one of appellant’s counsel. Upon objection by app ellee, the court refused to admit these exhibits in evidence after the testimony was produced outside of the presence of the jury as to the source and nature of the proofs.

Appellee, to sustain this ruling, relies upon Chicago & E. I. R. Co. v. Crose, 214 Ill. 602; Ellis v. Flannigan, 253 Ill. 397; Grant v. Chicago & N. W. R. Co., 176 Ill. App. 292, and Nunnelley v. Muth, 195 Ky. 352, 242 S. W. 622; same case 27 A. L. R. 910. The Illinois court, in Grant v. Chicago & N. W. R. Co., supra, held:

“In the case of Chicago & E. I. R. Co. v. Crose, 214 Ill. 602, it is said that photographs offered in evidence for the purpose of contradicting witnesses or explaining a transaction are only competent when they are shown to have been so taken as correctly to exemplify the actual situation, circumstances and surroundings at the time. ‘When the situation and surrounding circumstances are subject to change, photographs, to be of any value as evidence, must be shown to have been taken at the time when the situation and surroundings are unchanged. ’

“Plaintiff had no power to cause like pictures to be taken; he had no control over the engine and cars, and no one representing him was present at the time the pictures were taken. He did not have (to make use of language similar to that employed in the case of Lake Erie & W. R. Co. v. Wilson, supra) opportunity to offer evidence as to whether the pictures correctly represented the situations as they were severally presented. The record bears out the statement of defendant’s counsel that it was admitted by both parties that an engine and train of cars stood just north of the north sidewalk on Lincoln Avenue; that plaintiff’s witnesses claimed that this engine and train of cars were about ten feet north of said sidewalk, and that defendant’s witnesses stated that the engine and train of cars stood thirty feet north of said sidewalk. It was not admitted, however, by the plaintiff that when the two sets of pictures were taken the engine and train of cars were placed respectively about ten feet north of the sidewalk and thirty feet north of the sidewalk. Defendant’s station agent testified that they were so placed, but the plaintiff had no means of ascertaining the accuracy of this statement.

“In the case of Ellis v. Flannigan, 253 Ill. 397, it was sought to corroborate the testimony of a witness (that the testatrix of a will when sitting in a certain chair could not, by turning her head and body, see any object which was directly behind her) by showing a photograph of the room taken four weeks after the death of the testatrix. The photograph showed the table and the chair in which the testatrix sat, arranged, as the witness testified, in the relative positions which they occupied on the day the will was attested. The witness was the sister of the contestant of the will, and testified that the latter assisted her in arranging the furniture in the position she claimed each piece occupied on the day of the execution of the will. It was held that, made under these circumstances, the photograph was improperly admitted. As we understand the -case, the fact that the witness was a sister of the contestant could have been important only as showing her interest in the matter. We do not understand (as has been suggested) the court in using the phrase ‘under such circumstances’ to base the decision merely upon the fact that the witness was a sister of contestant, and that the contestant assisted in arranging the scene, but upon the broader ground of lack of equal opportunity, as more fully discussed in Chicago & E. I. R. Co. v. Cross, supra.”

In 27 A. L. R. at page 910, the case of Nunnelley, Admr. of Clifton Porter Nunnelley, deceased, v. Pierre Muth et al., is reported. This was an action for personal injuries and photographs were taken at the instance of a witness to show his recollection of the location of moving objects involved in the accident. Without going into great detail as to the facts of the case, we quote from the opinion, beginning on page 911, as follows:

“Parker visited the scene of the accident with a photographer before his deposition was taken, and indicated to the photographer his conception of the respective locations of Nunnelley’s machine and the truck at the time that Clifton Nunnelley first became visible to the driver of -the truck. He also indicated his owm location on the pike with respect to the point, of accident. Photographs were taken showing machines at these locations, also showing a man on horseback where Parker claimed to have been, 'and a boy representing the deceased. These photographs were offered in evidence. The trial court rejected them, and the argument is made that the ruling was erroneous.

“The competency of the photographs is insisted upon, on the idea that they were shown to have been accurately taken and developed, and that they portray, according to Parker’s recollection, the location of the moving objects at the time the boy could first have been seen by the driver of the truck. Upon that hypothesis it is argued that they are certainly as competent as the testimony of the witness himself, and that their admission in evidence would have aided the jury in determining the situation of the parties immediately preceding and at the time of the accident. Numerous decisions from other jurisdictions are cited, as approving the competency of this character of evidence, but many of the authorities relied on, including textbooks, pertain to photographs of the locus in quo or of permanent objects about the location of which there is no dispute. Photographs of the scene of the accident and of permanently located objects, shown to be accurate, are admissible in evidence in this jurisdiction, on the ground that they enable the jury to acquire a more intelligent understanding of the situation than could be obtained from a verbal description by the witnesses. But we have never held, where the question was raised, that photographs taken to show a witness’s recollection of the location of moving objects are competent.

“The latest utterance of this court on the subject is found in Welch v. Louisville & N. R. Co., 163 Ky. 103, 173 S. W. 338, in which it was held that photographs taken after the accident, showing the precise position of a party at the time of the accident, are inadmissible. The decision was based on the ground that a photograph of that kind is self-serving and cannot be used to corroborate a witness or to furnish evidence of the position of the party at the time of the injury. This, in our opinion, is sound, since the photograph does not show the facts with reference to the location of the injured party or other moving objects at the time of the accident, but is merely an ocular demonstration of the witness’s conception of such locations. If such photographs were held competent, then every witness testifying might introduce photographs of his conception of the location of moving objects, and there would be no end to the attempt to corroborate the witnesses by what amount to self-serving statements.”

It cannot be held as error that the court refused admission of these exhibits. They were incompetent and constitute what is termed “posed photography.”

Other assignments of error are made, but none as to the weight of the evidence.

Counsel for appellant seriously criticise the trial judge for what they call “his unfair rulings” and then proceed: “We have excepted to various instructions refused by the court and offered by the Appellant, and also excepted to various adverse rulings of the court on points of evidence against Appellant, and are compelled to refrain now from going into details of each of these, even in a general way, simply because it is too expensive to take up a record of this character. We trust that the Appellate Court, in reading the entire record, will note these points as well as if we had attempted to add the expense to set forth each one of them in detail.”

In Chicago City Ry. Co. v. Van Vleck, 40 Ill. App. 367, at page 368 of the opinion, the court said: “Several pages of objections and exceptions are practically pitch-forked in before the court, with the implied invitation that we look them over, examine the abstract, find out the connection in which each particular question arose, search out the materiality of evidence excluded, ascertain for ourselves the injurious operation or tendency of answers permitted, and say on the whole whether upon some one or more of the exceptions the verdict should not be overturned.

“We decline to enter upon the consideration of alleged errors thus bundled upon us. C. R. I. & P. R. R. Co. v. Moffitt, 75 Ill. 525.”

Again in Chicago, R. I. & P. R. Co. v. Moffitt, 75 Ill. 524, at page 529, the court states: “Counsel operate a drag net, but ask the court to do the sorting.”

Finding in the record no error warranting a reversal, the verdict and judgment of the circuit court of Piatt county are affirmed.

Affirmed.


author: Mr. Justice Shurtleee

text:
    T. W. Doss, Plaintiff in Error, v. Henry L. Evans et al. A. C. Roberts, Defendant in Error.
    Gen. No. 8,704.
    Opinion filed January 16, 1933.
    Rehearing denied April 5, 1933.
    W. A. Doss and Carl I. Glasgow, for plaintiff in error.
    Sentel & Cochran and J. L. Hicks, for defendant in error.
   Mr. Justice Shurtleee

delivered the opinion of the court.

A judgment by confession was entered in vacation during the October, 1931, term of the Piatt county circuit court on December 14, 1931, on a note dated December 17, 1930, due January 1, 1932, for $896.23, the note and power of attorney being signed only by Henry L. Evans and Roy Evans. The. note was signed on the back in blank by the defendant in error A. C. Roberts, who makes the motion on limited appearance to vacate and set aside the judgment as to himself. Defendant in error Roberts is a simple indorser upon the note. Judgment was entered December 14, 1931. The October, 1931, term of said circuit court adjourned on January 22, 1932. The February, 1932, term of said circuit court convened February 1, 1932, at which term motion to vacate was entered.

The judgment was taken before the maturity of the note against both the makers and the indorser, A. C. Roberts. One of the grounds for setting aside said judgment is lack of jurisdiction. The court vacated and set aside said judgment as to A. C. Roberts, defendant in error. This case is brought to the Appellate Court to reverse the order of the circuit court, but defendant in error A. C. Roberts asks that the order be affirmed.

Any person having a debt bona fide due may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process. Ca-hill’s St. ch. 110, ff 88. (Smith-Hurd statute, chapter 110, section 88.) A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicated by appropriate words his intention to be bound in some other capacity. Cahill’s St. ch. 98, If 83. (Smith-Hurd statute, chapter 98, section 83.) Every indorser not an accommodating party who indorses without qualification, warrants to all subsequent holders in due course, as set forth in paragraphs one and two of the Negotiable Instruments Act, Cahill’s St. ch. 98. And, in addition, every indorser engages that on due presentment, it shall be accepted or paid or both, as the case may be, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor be, duly taken, he will pay the amount thereof to the holder, or to' any subsequent indorser who may be compelled to pay it. Cahill’s St. ch. 98, If 86. (Smith-Hurd statute, chapter 98, section 86.) But except as herein otherwise provided by statute, presentment for payment is necessary in order to charge the drawers and indorsers.

There is no other liability upon a simple indorser of a note. Defendant in error in this case signed no power of attorney to confess judgment. His name upon the back of the note is well defined in the Negotiable Instruments Act, as it always has been defined at common law as a simple indorser and is not construed as authorizing the power of attorney to confess judgment any more than if it were a thousand miles away from the note. It has been held that the power to confess judgment must be clearly given and strictly pursued, otherwise the judgment confessed is void. (Wells v. Durst Chevrolet Co., 341 Ill. 108; Hughes v. First Acceptance Corp., 260 Ill. App. 176.) If there is no power of attorney to enter the appearance of the defendant and confess judgment, the judgment is a nullity and binds no one. (Weber v. Powers, 213 Ill. 370; Mayer v. Pick, 192 Ill. 561; Keen v. Bump, 286 Ill. 11; and Dulsky v. Lerner, 223 Ill. App. 228.)

For the reasons stated, the judgment of the circuit court of Piatt county is affirmed.

Affirmed.


text:
    Edward Barnstable, Appellee, v. Jasper Calandro, Appellant.
    Gen. No. 8,712.

      Opinion filed January 16, 1933.
    Rehearing denied April 5, 1933.
    Leslie J. Taylor, for appellant; Vernon W. Foster, of counsel.
    Hershey & Vogelsang, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Christian county, entered upon a verdict of a jury in favor of Edward Barnstable, appellee, against Jasper Calandro, appellant, in the sum of $5,000 and costs of suit.

Appellee sued appellant in an action on the case for damages to his automobile and injuries to his person which resulted from a collision between a motor truck of appellant and a Chevrolet sedan automobile of appellee. The Chevrolet car, operated by appellee, was driven into the rear of the truck of appellant.

The declaration originally consisted of one count. Six additional counts were subsequently filed, to all of which a plea of not guilty was filed. At the close of all the evidence, the trial court instructed for the appellant as to the first or original connt and as to the second additional connt.

The first additional connt charged that on January 13, 1931, Barnstable was driving an automobile on route 24, and Jasper Calandro by his agent, Donald Parks, was in possession of a Ford truck; that the appellant negligently caused his truck to be parked with the left rear wheel upon the paved portion of the roadway and the end of the body protruding for a space of eight feet over the paved portion of the highway on the right-hand side of a person driving in a westerly direction, without displaying on the rear end of said truck a light visible to persons approaching from an easterly direction; that the appellee, in the exercise of due care, without warning, drove into the truck of the appellant; that the impact destroyed the automobile of the appellee, wounded and permanently disfigured appellee, incapacitated him from attending his usual business, subjected him to pain and suffering, and that he had been compelled to pay large sums for doctors, nurses and hospital bills, and would in the future be compelled to make further expenditures to the damage of the appellee of $25,000.

The third additional count charged that the appellant, not regarding the statute, during the nighttime between the hours of one hour after sunset to sunrise, permitted his automobile to stand upon the highway without displaying a light in the rear; that the appellee operating his automobile with due care drove upon and struck the automobile of the appellant, and concluded with the same allegations as to damages to person and property.

The fourth additional count charged that the appellant, not regarding the statute, did not during the period of time of from one hour after sunset to sunrise carry a lighted lamp so situated as to throw a red light visible to persons approaching from the rear; that the appellee exercising due care, without warning, drove his automobile against the automobile of the appellant.

The fifth additional count charged that the appellant about the hour of 6:30 p. m., the night being foggy and rainy, hindering the vision of persons driving upon the road, caused his automobile to stand parked with the left rear wheel upon the paved portion of said road, permitting the body to protrude over the pavement eight feet, and negligently failed to have upon the rear end any light visible to persons approaching from an easterly direction, the truck of the appellant standing upon the right-hand side of the road to persons traveling in a westerly direction; that the appellee so driving with due care, without warning drove upon and struck the automobile of the appellant.

The sixth additional count charged that the appellant’s automobile was parked protruding out and over the paved portion of the highway on the right-hand side, without then and there by any means or method giving warning of the presence of said truck to persons approaching from an easterly direction, and that appellee with due care, without warning, drove upon and struck the automobile of the appellant.

Pleas of not guilty were filed to the declaration, and a trial had before a jury, which returned a verdict of “guilty as charged in the declaration” and assessed appellee’s damages at $5,000. Motion for new trial was filed and argued. The motion was overruled and judgment entered in favor of appellee and against appellant for the sum of $5,000 and costs. Appellant has brought the record to this court by appeal for review.

The collision involved occurred on the evening of January 13, 1931, some time between 6:30 and 7 o’clock p. m., at a point on State highway route No. 24, about a mile and a half east of Taylorville.

Route 24, starting at a point about a half mile east of the scene of the collision, travels generally east and west upon a levee constructed in the river bottom and crosses the Flat Branch of the Sangamon river. After passing the bridge the road goes definitely upgrade and makes a bend to the left at an angle of about 45 degrees. The slope of this hill is about 150 to 200 yards long. The hill has a rounding crest and just before the crest is reached there is a road leading off to the north, referred to in the evidence as the “ T ” road. The road from the crest of this hill slopes abruptly to the west into another hollow.

Running along the north side of the road from the “T” road west just at the edge of the shoulder there is an embankment about four feet high. Extending along the road east and west for about an eighth of a mile west of the “T” road and from the edge of the embankment back from the road to the north there is a heavily wooded area of tall trees.

The day in question had been a rainy, murky day and during the evening there were intermittent drifts of light fog along the roadway, especially in the low lands. The night was dark and the pavement damp.

The truck of the appellant was operated by one Donald Parks, a witness at the trial. His evidence discloses that the truck developed engine trouble as he came up the curving hill from Flat Branch; that he drove it over the crest of the hill, a short way down the western slope and elected to stop the truck at that point.

The evidence definitely discloses that the truck was driven off the road at an angle of approximately 45 degrees with its front end pointed into the embankment, with the truck submerged in the background of overhanging trees and, according to the testimony of Donald Parks at the former trial of this cause, with the left rear wheel upon the pavement.

The evidence discloses that the truck was a model “A” Ford, with a special stake body upon it, which body was covered over almost entirely with a brown tarpaulin. The body of the truck extended back from the rear wheels about four feet. Two sills ran along the length of the body. The tail light of the truck was attached to the left-hand side of the left-hand sill, just back of the rear wheels and at least three feet from the end of the truck.

The driver of the truck testified that the rear light was left burning. The first persons who apparently came along after the truck had been stopped, being the witnesses Dooley and Stroble, and who were the only persons produced at the trial who testified that they were flagged by the waving of the driver’s light, prior to the collision, stated that the tail light was burning when they stopped. They offered to pull the truck to town, but the driver rejected their offer and did not avail himself of the opportunity afforded by their offer to get the truck pulled off the slab.

Two other persons, witnesses Ed Denton and Dean Brewer, separately passed the parked truck earlier and prior to the arrival of appellee in his car. The only light visible to either of these gentlemen as they passed was a dim light at the front of the truck. The driver did not flag either of these gentlemen with his light.

Appellee, coming from Pana, across the Flat Branch bridge, around the curve and up the hill and over its crest on the right side of the black line and at a rate of speed of from 35 to 40 miles an hour, did not see the dark figure of the tarpaulin covered truck against the black dampness of the pavement until he was upon it. He attempted to swerve to the left, caught the left half of the rear end of the truck, the hood of his car was smashed back as the front end of the car went under the stake body and came in contact with the left sill. The middle of his bumper hit the left wheel and tail light. The right side and front of his ear was demolished, the left fender was uninjured.

Appellee testified that to the best of his judgment he was driving within two or three inches of the black line; that he didn’t see anyone about the truck before the collision; that there was nothing between him and the truck to prevent his seeing the truck; that he was driving 35 or 40 miles an hour; that his car was equipped with four-wheel brakes; that on the former trial he had stated that going at that rate he could have stopped the car or at least have gotten it under control within 30 steps; that he couldn’t say that he saw the truck; that an object loomed up in front and about the same instant he crashed into it; that his headlights were burning immediately before the collision ; that on a dark night with his lights working he could see from 175 to 200 yards ahead; that at the point where the collision took place the concrete slab and shoulders are 35 to 40 feet wide. From the “T” road to the point of collision the road is straight. He didn’t recall seeing* any other cars or automobiles immediately before the collision. In reply to the question, “What if anything* was there to prevent your driving to the left of this truck?” he stated, “This object shows up — the only way I can answer I didn’t have time to change the course of my car to go to the left.”

He was then asked, “By that you mean you didn’t see the truck until you hit it?” to which he replied, “I saw it the instant before; there was an object; I didn’t know whether it was a truck or a hay stack or what it might be; there was no way of telling just what it was. I was too near it to have time to figure out what it was.” He stated on the trial that it was somewhat damp and foggy.

Appellant insists that appellee was guilty of contributory negligence in driving into the truck. Numerous cases are cited of a somewhat similar nature, but each case is to be decided upon the facts of the particular case. Upon this question it is impossible to reconcile the variation in the testimony.

The witness Brewer, the only person testifying as to the lights, testified that the only light he saw was one at the head of the truck.

Parks agreed with the witnesses for appellee that his truck was not driven off the slab parallel to it, but that it was driven off at an angle to the northwest. He contended, however, that the body overhung the pavement only a foot. This statement was contradicted by both Brewer and Denton, who stated it overhung about eight feet. He is further contradicted on this point by his own testimony given on the former trial of this case. He testified then that the left rear wheel of his truck was on the pavement four inches.

Parks claimed he flagged every person who came along after he had stopped his truck, but the evidence of Denton and Brewer, the only persons appearing as witnesses who are known to have come along prior to the wreck other than Dooley and Stroble, were not flagged by him. Parks claimed to have attempted to flag appellee, which is inconsistent with his testimony that he was up at the engine when appellee’s car hit the truck. It is inconsistent with the fact that he told the witness Nolan that he was up at the front of the engine trying to find out what the trouble was, at the time of the collision.

There was testimony tending to disclose the following facts: that Parks stopped the Calandro truck just to the west of the crest of the hill where the ground began to slope to the west. Parks claims “All I could do was to pull off the slab,” but the facts are that he didn’t even do that. He was on a down slope and the momentum of the truck would have carried it off if he had permitted it to. Pie doesn’t state that the engine had stopped before he stopped the truck. He didn’t guide the truck off parallel to the slab as he could have done; he ran it off at an angle to the slab, a 45-degree angle one witness said; to the northwest, he testified himself. He left the left rear wheel on the pavement. It is argued that he did this because the shoulder was uncertain footing after a cloudy, rainy day, and he wanted one wheel on a solid footing so that he might be able to back upon the pavement and proceed if, after he had determined the. cause of his engine trouble, he was able to fix it.

Brewer testified: “It was a little bit foggy and misty, misting rain to the best of my knowledge. ’ ’ He says when he got close “There was a dim light on the front of the truck.” Appellee and Brewer in their testimony state that no red light was burning at the rear of appellant’s truck. Appellee, from the crest of the hill, after passing the “T” road going north, was going down hill or incline to the place of the accident, or was sloping to the west.

The question of contributory negligence is ordinarily one of fact to be determined by the jury from all the facts and circumstances shown by the evidence. A court cannot be called upon to say to a jury that contributory negligence has been established as a matter of law, unless the conduct of the injured party has been so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. If the question is open to a difference of opinion, the jury must pass on it. (Toledo, St. L. & W. R. Co. v. Christy, 111 Ill. App. 247; Nugent v. Waters, 266 Ill. App. 377; Illinois Cent. R. Co. v. Anderson, 184 Ill. 294; Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586.)

From all this proof we are not able to hold that appellee was guilty of contributory negligence or that the verdict was against the weight of the evidence,

Appellant presents the case of McDermott v. McKeown Transp. Co., 263 Ill. App. 325, as a case altogether identical upon the facts with the case at bar, in which the court held (p. 328):

‘ ‘ The case was tried on the theory that there was an absolute legal duty on defendant to maintain a red light on the rear of the truck, as required by the statute, Cahill’s St. ch. 95a, H17, if defendant would relieve itself from liability in case one were injured on account of there being no red light, and this is the contention of plaintiff. An instruction was given in the language of the statute, that ‘When upon any public highway in this State, during the period from one hour after sunset to sunrise, . . . each motor vehicle or trailer shall also exhibit at least one lighted lamp which shall be so situated as to throw a red light visible in the reverse direction. ’ But we think the law is not so unreasonable that there might not be circumstances which would relieve one from liability in case the rear light suddenly went out. Toledo, Wabash & Western Ry. Co. v. Beggs, 85 Ill. 80; People v. Kastings, 307 Ill. 92; Berkovitz v. American River Gravel Co., 191 Cal. 195; Yates v. Brazelton (Cal. App.), 291 Pac. 695.”

But in the view of this court driving conditions and lights in Chicago, Evanston and the Lake Shore are entirely different from such conditions on a country road, up hill and down, where there are no lights, upon a wet and dark night. In the McDermott case cited, the complaint was made upon instructions, as stated, which error does not occur in the case at bar. In this case appellee testified he did not see the truck until he was right upon it. The night was dark and misty. There are no- proofs that appellant’s driver in any manner attempted to warn or flag appellee, as he had the others. Appellee had gone to the top of the incline and was proceeding to a lower level. The truck was covered with a brown tarpaulin, a dirt color, and, if it be true, as the jury evidently determined, that no red light was burning at the rear of the truck, or if such light was directed away from the vision of appellee by the angle of the truck, these facts — upon which there was some proof — together with the dirt embankment and overhanging trees, renders it impossible to hold as a matter of law that appellee was guilty of contributory negligence.

Appellant further contends that the court erred in not instructing the jury to find a verdict for appellant, on the ground that there was no testimony tending to show that appellant, by his servant, was guilty of negligence. With appellant’s truck standing at an angle in the line of traffic over on the cement eight feet, as testified to by appellee’s witnesses, or one foot, at least, as testified to by appellant’s servant, the assignment of error should be overruled. There was no occasion for the truck standing in that position. The truck had been traveling on a decline and could as easily have been coasted off from the cement, or it could have been removed from the highway entirely by the men who offered to haul it to Taylorville before the accident happened; but appellant’s servant declined the offered aid.

It was further assigned as error that appellant’s rights were prejudiced by errors in the admission of evidence. Appellant contended that the court erred in permitting the appellee to exhibit to the jury, over the objection of the appellant, the leg which had been broken; that there was nothing about the injury which was not and could not be fully explained by the attending physician and by the appellee himself, and that he was permitted to stand out in front of the jury and to uncover his limb and demonstrate what the leg does.

The law is well settled that the determination of the question as to whether one who is injured may exhibit the injured member to the jury is primarily in the discretion of the trial court, and it is properly exercised in any case where the personal view will aid the jury in understanding the evidence and also where there is no controversy concerning the injury or the extent of it. (Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114; Chicago & A. R. Co. v. Clausen, 173 Ill. 100.) Of like effect, are the cases of Chicago Terminal R. Co. v. Kotoski, 199 Ill. 383; Hunt v. Illinois Southern Ry. Co., 196 Ill. App. 539, and Johnson v. Wasson Coal Co., 173 Ill. App. 414.

The courts have gone even further in permitting as proper more than a mere exhibition of the injured limb. They have held that on a trial of an action for personal injury to allow the witness to move the injured limb to demonstrate the extent to which freedom of movement had been impaired, was not error. (Tindall v. Chicago & Northwestern Ry. Co., 200 Ill. App. 556; C. & A. Ry. Co. v. Walker, 217 Ill. 605; Swalm v. City of Joliet, 219 Ill. App. 123.)

The only evidence offered upon the question of the extent' of the injury was that of the appellee and of Dr. Tankersley, one of appellee’s witnesses. There was no dispute upon this point and the case of Wagner v. Chicago, R. I. & P. Ry. Co., supra, clearly holds that under such circumstances the exhibition of the injured member is always proper.

There was no demonstration before the jury. It is true that appellee, not in response to any question, voluntarily started to flex his leg to show the character of the injury. It would not have been proper under the cases above cited if he had been permitted to continue, but the record discloses that the court promptly sustained the objections of the appellant and advised the jury that a demonstration was not proper. There was no controversy upon this question. The exhibition of the limb was clearly proper. Objections were promptly sustained to the part that the court considered improper and no error was committed in connection therewith.

The court held in Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114, 118: “The court permitted the plaintiff to exhibit his' foot to the jury, and also to exhibit the shoe which he wore at the time of the accident and to offer the shoe in evidence. Whether one who is injured may exhibit an injured member to the jury is primarily in the discretion of the trial court, and it is properly exercised in any case where the personal view will aid the jury in understanding the evidence, and that may be so where there is no controversy concerning the injury nor the extent of it, as was the fact in this case. (Chicago and Alton Railroad Co. v. Clausen, 173 Ill. 100.) Where, however, the only purpose and effect of an exhibition of that kind is to excite feeling rather than to enlighten the jury as to any fact or to aid in settling any disputed question of fact it should not be permitted. In this case there was not only no controversy concerning the injury nor the extent of it, as was stated at the time of the proposed exhibition, hut the evident purpose was to excite in the minds of the jury pity and commiseration for the' condition of the plaintiff and thereby to increase the damages. The exhibition for the purpose which the record shows was intended should not have been allowed, and if it now appeared that, the damages allowed were excessive it would he necessary to reverse the judgment. In view, however, of the amount of the recovery it would seem that substantial injury did not result from what was done.” Nothing is shown in the record to indicate that the jury were prejudiced by this proof.

Appellant further assigns error in that upon the evening of the second day of the trial, the Daily Cou rier of Taylorville published a front page article under leaded caps which was as follows:

“The Daily Courier

“Yol. 36 Fifteen Cents Per Week

“Taylorville, Illinois, Tuesday, January 5, 1932

“$25,000.00 Damage Case On Trial

“A jury in the Circuit Court here today, heard the evidence in the case of Ed Barnstable, who filed suit against Jasper Calandro for $25,000 damages following an automobile accident on the East hard road.

“Mr. Barnstable was returning from Chicago and crashed into the back end of the Calandro truck part of which was parked on the hard road and said to have been without light.

‘1 The case was tried at the August term of court and resulted in a hung jury.

“The case is being tried to determine the amount to be paid by the Insurance Company which carried the Calandro risk.”

The matter was called to the court’s attention and he personally examined all the jurors to ascertain if anyone had seen or read the article. All of the jurors, save one, stated that they had not even seen the newspaper. The one who had seen the paper stated that he had not seen the article and had not read it.

The cases cited by appellant on this point, particularly Trohey v. Chicago City Ry. Co., 168 Ill. App. 1, and West Chicago St. Ry. Co. v. Grenell, 90 Ill. App. 30, recognize the rule that when it is shown that jurors have not read a prejudicial article in a newspaper the publication of the same is no reason for a mistrial. This rule is laid down in the case of City of Chicago v. Dermody, 61 Ill. 431.

It affirmatively appears that no juror had read the article in the Daily Courier and if such is the case it could not have affected their verdict.

It further appears in the proofs by the testimony of the witness Henry Burchfield, the reporter who wrote the article, that he had the statement, substantially as printed, from the appellant. Under all the circumstances of this occurrence, it cannot be held as error that a mistrial was denied.

Appellant assigns error in the giving of appellee’s first instruction, as follows: “The court instructs the jury that the plaintiff is required to make out his case by a preponderance of the evidence to entitle him to recover, and any evidence, either circumstantial or positive, which induces belief is proper to be considered by you in determining whether or not the plaintiff has so made out his case.”

He contends that this instruction does not nor does any other instruction given by appellee define of what the case of the appellee consists. The court held that the original declaration and one of the additional counts should not go to the jury. This instruction did not confine the appellee to making out his case as alleged in the counts of the declaration.

Appellant did set out in his ninth instruction a full . statement of plaintiff’s case. It has been held that a defendant (appellant) had the right and it was his duty, if he so desired, to offer instructions setting forth the elements necessary to be proven to support plaintiff’s cause of action. (Chicago City Ry. Co. v. Foster, 226 Ill. 288; Hannibal & St. J. R. Co. v. Martin, 111 Ill. 219; Mayzels v. Chicago City Ry. Co., 177 Ill. App. 534.)

Appellant further objected to the giving of appellee’s third instruction, as follows: “The court instructs the jury that the lawr of this state requires that upon state highways upon which have been constructed paved or hard surfaced roads having two traffic lanes, any person operating or driving a vehicle shall, whenever practicable keep to the right of the center line of the paved or hard surfaced portion, and shall have the right of way there.”

It is contended that both cars strictly adhered to this rule in the use of the highway, and that the giving of this instruction was prejudicial to the jury. We cannot agree with appellant in this contention. Appellant’s car did not give appellee’s car the right of way upon the pavement to the right of the black line. The fact that an instruction is a mere statement of a rule of law is not ground for reversal. (Chicago City Ry. Co. v. Anderson, 193 Ill. 9.)

In Garvey v. Chicago Rys. Co., 339 Ill. 276, cited by appellant, the same rule is recognized. The instruction in the Garvey case, however, went much further than appellee’s instruction and directed the attention of the jury to a part of the evidence and instructed the jury as to the bearing of this evidence on the question of the appellant’s negligence. Appellee’s instruction does nothing of that kind.

It is further contended by appellant that the damages awarded are grossly excessive. Appellee suffered pecuniary damages in the wrecking of his car, doctor’s bills and loss of time to the amount of about $1,000. He had a leg broken just below the knee; an ankle badly twisted and strained; two bones of his left hand were broken; a cut on his head, running from his eye back, requiring 33 stitches; two other cuts on his head, each four or five inches long, and two scars on his right temple. We are not prepared to say that the amount of the damages is excessive.

Finding nothing in the record that will warrant a reversal, the verdict and judgment of the circuit court of Christian county are affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    John Deere Plow Company of Moline, Appellant, v. Georgia Marie Carmer, Appellee.
    Gen. No. 8,741.
    Opinion filed February 1, 1933.
    N. E. Hutson, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In the above entitled cause, an opinion was filed by this court on April 14, 1931 (263 Ill. App. 307) together with an order reversing the judgment of the trial court and remanding the cause with directions to render a judgment that the right of property was in the appellant.

The Supreme Court granted a writ of certiorari, and on review of the cause, decided, that the direction by this court to render final judgment concerning the rights of property, was error.

In its opinion the Supreme Court makes the following finding:

“The John Deere Plow Company of Moline, a corporation, instituted a proceeding against Georgia Marie Carmer in the county court of Piatt county to determine the right of property in certain chattels. At the close of the evidence introduced by the plaintiff, the defendant made a motion to dismiss the proceeding and to enter judgment in her favor. The motion was granted and judgment was rendered dismissing the proceeding at the costs of the plaintiff. Upon appeal, the Appellate Court for the Third District reversed the judgment and remanded the cause to the county court with directions to render judgment that the right of property was in the John Deere Plow Company. Georgia Marie Carmer thereafter applied to this court for a writ of certiorari. The prayer of her petition was granted and the record is here for a further review.

“Glenn F. Carmer, the husband of Georgia Marie Carmer, was engaged in business at Bloomington, in McLean county. On and prior to May 21, 1930, his indebtedness to the John Deere Plow Company, whose products he had sold, exceeded $8,000. Upon an accounting, he gave the company two notes, — one executed by himself and his father for approximately one-half, and the other, signed by himself, for the remainder of the indebtedness. Shortly after these notes were given, on May 21, 1930, he executed an instrument dated that day, by which, in consideration of one dollar and other good and valuable considerations, he sold and delivered to the company, the party of the second part, a Graham-Paige automobile and' a Sparton radio. The instrument provided ‘that said personal property may be sold by second party at public or private sale, without notice, and that the proceeds of said sale, less the expense of taking, caring for, keeping, fitting, repairing and selling same, shall be applied as a credit on the indebtedness of said first party to said second party, as evidenced by certain promissory notes which said first party admits are unpaid at this date, as follows: One note: Principal $4395.58, Date of note, April 25-30, Date due, demand; . . . that the delivery of said personal property to and the sale of the same by second party shall in no manner relieve or release first party from liability for payment of any part of his said indebtedness upon said notes that may remain unpaid after the net proceeds of the sale of said personal property has been credited as aforesaid; and . . . that the net proceeds realized from the sale of said personal property may be applied by the second party on either or all of said notes as second party may elect, and the application of any money thus received will be considered as a voluntary payment of said first party on said note or notes as of the date on which said personal property is sold.’

“The execution and delivery of the instrument were attested by two witnesses and Carmer acknowledged its execution before a notary public in McLean county. The instrument was recorded in Piatt county on May 22, 1930. The automobile and the radio were in the possession of Georgia Marie Carmer, who lived with her father in the latter county, separate and apart from her husband. The plow company notified Mrs. Carmer that, by a bill of sale from her husband, it had acquired the automobile and the radio and requested her to deliver them to it. She promised to do so in case the differences between herself and her husband were adjusted. The property, however, was not delivered to the company. While these negotiations were in progress, Mrs. Carmer, on July 1, 1930, recovered a judgment by confession against her husband in the circuit court of DeWitt county for $2222.20 and costs. An execution upon this judgment was issued to the sheriff of Piatt county and was levied upon the automobile and the radio on July 5, 1930. Five days later the plow company gave the sheriff notice that it claimed ownership of these chattels and the trial of the right of property in the county court followed.

“The plaintiff in error, Georgia Marie Carmer, seeks a reversal of the Appellate Court’s judgment upon several grounds. Only one of the errors assigned, however, needs to he considered. She insists that the Appellate Court, in reversing the judgment of the county court, erred in remanding the cause to that court with directions to render judgment that the right of property in the chattels was in the John Deere Plow Company because, in the state of the record, she could not, upon a remandment, be deprived of the right to introduce evidence in her own behalf.

“The trial in the county court was conducted without a jury. At the close of the evidence introduced by the claimant, the defendant in error in this court, a motion was made by the plaintiff in error for the dismissal of the proceeding with costs. The motion was granted, the proceeding was dismissed at the costs of the claimant, and exceptions to the court’s ruling and judgment were preserved. In view of the county court’s ruling upon the motion, no evidence was introduced by the plaintiff in error.

“Upon a jury trial, the motion to direct a verdict raises only a question of law respecting the legal sufficiency of the evidence to sustain a verdict against the party making the motion. (Wolf v. Chicago Sign Printing Co., 233 Ill. 501; Angus v. Chicago Trust and Savings Bank, 170 id. 298; Rack v. Chicago City Railway Co., 173 id. 289; Marshall v. Grosse Clothing Co., 184 id. 421; Martin v. Chicago and Northwestern Railway Co., 194 id. 138.) In the event of an adverse ruling on the motion to direct a' verdict, an.exception preserves the question of law for the consideration of an appellate tribunal. The submission of a question of fact to the jury does not waive the question of law already passed upon by the court where the rights of the party have been properly preserved. (Wolf v. Chicago Sign Printing Co., 233 Ill. 501; Chicago Union Traction Co. v. O’Donnell, 211 id. 349; Illinois Central Railroad Co. v. Swift, 213 id. 307; Chicago Terminal Transfer Railroad Co. v. Schiavone, 216 id. 275.) If, on the other hand, the motion to direct a verdict for the defendant is sustained, and the appellate tribunal, -on review, holds that, as a matter of law, the trial court erred in granting the motion, the judgment of the trial court will be reversed and the cause remanded for a new trial. Osgood v. Skinner, 186 Ill. 491; Clarke v. Supreme Lodge Knights of Pythias, 189 id. 639.

“A motion to find for the defendant in a trial before the court without a jury concerns solely the sufficiency of the evidence to sustain a finding against the defendant and therefore raises only a question of law. (Helm v. Commercial Men’s Ass’n, 279 Ill. 570; Mc-Micken v. Safford, 197 id. 540; Conway v. Garden City Paving Co., 190 id. 89; Smith v. Billings, 169 id. 294.) If the court sustains the motion, judgment for the defendant necessarily follows. The allowance of the motion, however, is not an adjudication of the issues of fact. Helm v. Commercial Men’s Ass’n, 279 Ill. 570; Wolf v. Chicago Sign Printing Co., 233 id. 501.

“The motion made by the plaintiff in error in the county court raised a question of law, and the granting of the motion did not settle or determine the issues of fact. Since the county court did not adjudicate those issues, the Appellate Court, upon appeal, could not do so. The plaintiff in error has the right to an opportunity to offer evidence in her behalf before a judgment on the merits may be rendered against her. The Appellate Court, by its opinion, held that the county court’s decision upon the question of law was erroneous and that the error required a reversal of the latter court’s judgment. "When the appellate Court reverses a judgment of the trial court in a common law action for error of law, it must remand the cause to the trial court where the error may he corrected upon further proceedings. (Simon v. Reilly, 321 Ill. 431.) The statute provides that the trial of the right of property shall be conducted in the same manner as other trials before the county court, and may be by a jury if either party demands one. A remandment of the present cause to the trial court with specific directions finally concluding the rights of the parties was therefore not justified.

“The judgment of the Appellate Court is reversed and the cause is remanded to that court with directions to enter such judgment affirming or reversing the judgment of the county court as may seem proper to it, and if it reverses the judgment to remand the cause to the county court for further procedings.” (John Deere Plow Co. v. Georgia Marie Carmer, 350 Ill. 104.)

On reconsideration of the case by this court, in accordance with the Supreme Court mandate, it is ordered that the judgment of the trial court be reversed and that the cause be remanded for further proceedings.

Reversed and remanded.


author: Mr. Justice Baldwin

text:
    Maude Bouslough, Administratrix of the Estate of Marion Bouslough, Deceased, Appellant, v. Helen Schumacher, Appellee.
    Gen. No. 8,521.

      Opinion filed February 23, 1933.
    Fred B. Shearer, for appellant; Walter B. O ’Malley, of counsel.
    Thomas M. Clifpe, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The appellant (plaintiff in trial court) as administratrix of the estate of Marion Bouslough, deceased, filed her suit to the October Term 1930 of the circuit court of DeKalb county against Helen Schumacher, appellee, to recover damages for the alleged wrongful death of plaintiff’s intestate.

The declaration consisted of five counts, each alleging that the injury resulting in the death of plaintiff’s intestate was occasioned by negligence of the defendant and that plaintiff’s intestate exercised due care and caution for her own safety. A plea of general issue was filed by defendant.

Trial was had in the circuit court of such county by a jury, who heard the testimony and returned a verdict in favor of the defendant. Thereafter the court entered judgment upon such verdict against the appellant for costs. This appeal is prosecuted to reverse such judgment.

The accident in question occurred on February 11, 1930, about 7:30 p. m. upon a certain highway designated as the Galena road, a short distance west of the intersection of such road with Western avenue where the same passes through the Village of Sugar Grove. This highway is one of the paved routes of this State and is commonly known as Eoute 71.

Helen Schumacher, a student in her senior year of high school, resides with her mother at Hinckley, Illinois, about 20 miles west of Aurora. Upon the evening of February 11th, a school play was to be given at Aurora. The appellee, together with five other girls, in charge of Mrs. Euth Lenz, started to Aurora in her automobile to attend such play. They had proceeded to a point about three miles west of Aurora when they overtook another car going in the same direction. As appellee was driving the car and as she was passing the car they had overtaken, her car struck the plaintiff’s intestate, who as a result thereof died.

The evidence discloses that plaintiff’s intestate was a woman of approximately 38 years of age, unmarried and living with her father and brother a short distance away from this paved road.

Several causes are assigned as to why the judgment of the circuit court should be reversed. It is said that the verdict is contrary to the evidence. It is true there is some controversy in the testimony as to the point or position of the deceased upon the highway. We believe, however, the evidence tends to show that plaintiff’s intestate, at the time she was struck by the automobile of the appellee, was walking eastward, in the dark, at or near the center of the north one-half of the paved portion of the road. Notwithstanding the conflicting testimony herein, it is our opinion that the preponderance of the testimony supports the verdict of the jury, and that plaintiff’s intestate in walking upon such pavement as is disclosed by the evidence herein, was guilty of contributory negligence and therefore plaintiff could not recover.

We have examined the evidence herein and from a consideration thereof have concluded that the jury was justified in its verdict. It appears from the evidence that the car of the appellee was not being driven at an excessive rate of speed and that the driver thereof upon learning of the presence of the plaintiff’s intestate did every act under the circumstances, appearing at the time, that could have been done to avert the accident. All of the girls in appellee’s car testified in this proceeding that the appellee attempted to stop the car as soon as the presence of the deceased upon the road was discovered. Their testimony discloses that plaintiff’s intestate was walking approximately in the center of the left half of the paved portion of such road and that after the accident, the deceased was yet lying upon the edge of the pavement. Although this evidence is contradicted in a measure, it appears to us that a fair inference from such testi- ■ mony is that the deceased was walking as herein indicated and the verdict of the jury in that respect is reasonably supported thereby.

The evidence herein, as above indicated, is conflicting upon the various issues. In such cases the courts of this State have on numerous occasions held that the verdict of the jury, as to the facts, will not be disturbed unless the verdict is manifestly against the weight of the evidence.

In Chicago City Ry. Co. v. Young, 62 Ill. 238, page 240, the court said: “The weight, to be given to one (witness) more than another, has been, and properly should be, determined by the jury. The attempt of this court to reconcile conflicting evidence, to determine its preponderance when fairly balanced, and to decide as to the credibility of witnesses, would be a usurpation of the functions of the jury. ’ ’

In Mandelkow v. Meyer, 219 Ill. App. 286, page 293, the court said: “It may be conceded as the settled law of this State that the verdict of a jury upon the facts where they are in conflict will not be lightly disturbed by a court of review unless the court is firmly of the opinion from such evidence that the verdict and judgment are clearly contrary to its weight. ’ ’

To the same effect are Lowry v. Orr, 1 Gilm. 70; Halty v. Markel, 44 Ill. 225; Calvert v. Carpenter, 96 Ill. 63, 67; Bradley v. Palmer, 193 Ill. 15, 88; Illinois Cent. Co. v. Gillis, 68 Ill. 317; Lourance v. Goodwin, 170 Ill. 390, 393; Shevalier v. Seager, 121 Ill. 564.

It is urged by appellant that the court erred in admitting in evidence the testimony of the mother of the appellee, as to the fact that there was some mud and blood upon the stockings and some blood on the sleeve of the coat of Helen Schumacher, the appellee. While we do not see any materiality of this testimony and do not know upon what theory it was admitted yet the testimony on this point was identical with that of the appellee and we can see no harm that could have been done by the testimony. No error was committed in admitting the same.

Appellant has also complained that she was not permitted to introduce the clothing and shoes worn by deceased at the time she was struck for the purpose of showing that she had been walking on the side of the pavement and not upon it. So far as disclosed by the evidence no one knew whether the deceased had been walking on the side of the pavement before the accident or where she had been between the time she left her home and the time of the accident. We do not believe the clothing would or could furnish any such proof as claimed and we find that no error was committed in rejecting these exhibits.

Ruth Lenz, a witness produced by appellee, testified that she was with the girls at the time of the accident; that the brothers of the deceased came to the scene of the accident; that a conversation took place between the brothers; that one brother asked the other if cthe sister wasn’t with him and that the other brother answered “No, she ran ahead like a crazy fool like she always does.” A motion to strike out this testimony was denied and such action is urged as error.

The answer to this question and to the preceding-question was given without objection. Although no objection was made the answer was improper and should have been stricken in view of the fact that it did not relate in any way to the issues, yet under the circumstances we are not prepared to say that the denial of the motion to strike was reversible error.

It is urged also that the court committed error in giving instruction No. 7, which the court by inadvertence failed to mark ‘ ‘ Given. ’ ’ The plaintiff makes the point that this question has been passed on in Terre Haute & I. R. Co. v. Hybarger, 67 Ill. App. 480. From an examination of such case we find that in this contention the plaintiff is not justified in her position on that point. In that case the court gave an instruction containing a correct statement of law applicable to and bearing upon one of the important branches to the case but which the court inadvertently marked “refused.” Because of the subject matter of the instruction and of the fact that it was marked “refused, ’ ’ although given to the jury, the Appellate Court reached the conclusion that the jury could have been misled by such instruction, so given to the jury but marked “refused.” However, in this case no such facts appear. The instruction herein was simply given to the jury without having been marked at all and although the court should have marked the instruction “given,” the jury could not have been misled in any particular by any act of the court in connection with the instruction.

Some other complaint has been made as to the refusal of the court to give certain instructions of the plaintiff but we have examined all of the instructions and are of the opinion that as a whole the jury were fully and properly instructed as to the law applicable in this case.

It is contended also that appellee’s attorney made improper remarks to the jury, but that on account of the subtle way in which it was done, appellant could not object to the trial court and request that the jury be instructed to disregard such remarks. We have examined the record on this and see no merit in this contention.

Appellant also urges as error the giving to the jury the ninth instruction of appellee. It is admitted that the instruction is good as a general proposition but it is contended that because of the argument of counsel for appellee the instruction should not have been given. We see no merit in this contention.

The judgment of the circuit court of DeKalb county is affirmed.

Judgment affirmed.