source: Caselaw Access Project

license: Public Domain

text:
    Alice Juckins, Also Known as Alice Pozen, Appellee, v. Professional Service Corporation, Appellant.
    Gen. No. 42,385.
    Opinion filed March 10, 1943.
    A. Henry Goldstein and Herbert A. Ellis, both of Chicago, for appellant; A. Henry Goldstein, of Chicago, of counsel.
    Raymond F. Hayes, of Chicago, for appellee; J. Glenn Shehee and John A. Quigley, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On September 24,1941 Alice Juckins, also known as Alice Pozen, filed a statement of claim in the municipal court of Chicago against the Professional Service Corporation, asking judgment in the sum of $74.33 for wages due for services rendered to defendant as a typist and relief switchboard operator, and for a reasonable sum for attorney’s fees. The defendant filed its appearance on October 8, 1941. The record shows that on April 22, 1942 the case was called for trial at 10:00 a. m., that both sides answered “ready”; that the case was again called at 11:30 a. m., when defendant moved for a continuance; that such motion was overruled; that defendant then presented its petition for a change of venue, which was denied; that the case was tried before the court without a jury; and that the court found the issues and entered judgment against the defendant for $64.33, including $15 allowed for plaintiff’s attorney’s fees. The judgment order found that plaintiff’s claim was for wages. Defendant appeals.

, Defendant contends that the court erred in denying its motion for a change of venue. Plaintiff insists that the motion for a change of venue was properly denied. The petition for a change of venue recites that the authorized agent making the petition for the defendant “fears that defendant will not receive a fair and impartial trial in said court if said cause will be tried before the Honorable Thomas A. Greek, one of the judges in said court, because said judge is prejudiced against said defendant so that he cannot expect a fair trial by said judge,” and that “said prejudice first came to the knowledge of this defendant on April 22, 1942 at the hour of 11:00 o’clock a. m.” When the case was called at 10:00 a. m. both parties answered that they were ready for trial. The case was again called at 11:30 a. m., when the defendant moved for a continuance. On this motion being overruled, the defendant presented a petition for a change of venue, which was overruled. The second paragraph of section 1 of an act to revise the law in relation to change of venue (sec. 1, ch. 146, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 107.316]) provides that a change of venue in any civil suit or proceeding in law or equity may. be had where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending because the judge is prejudiced against him. Section 3 provides that every application for a change of venue shall be by petition setting forth the cause of the application, and praying a change of venue, which shall be verified by an affidavit by the applicant. Section 5 states that the application maybe made to the court in which the case is pending, or to the judge thereof in vacation, reasonable notice thereof having been given to the adverse party or his attorney. Section 6 provides that no application for a change of venue shall be allowed more than 30 days after the return date on which the defendant is required to appear unless the party applying shall have given to the opposite party 10 days previous notice of his intention to make such application, except where the causes have arisen or come to the knowledge of the applicant within less than 10 days before the making of the application. Section 7 states that no change of venue shall be granted more than 30 days after the return day on which the defendant is required to appear unless the party applying shall show that the causes for which the change is asked have arisen or came to his knowledge since the expiration of such 30 days. Our courts of review hold that the provisions for a change of venue should receive a broad and liberal rather than a technical and strict construction, so as not to defeat the right attempted to be attained. Sections 5, 6 and 7 show that the legislature intended to guard against the use of a petition for a change of venue for the purpose of delaying the trial. This is in accordance with the declaration of section 19 of the Bill of Rights (sec. 19, Art. II, Constitution of 1870) that every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation promptly and without delay.

The petition in the instant case states that knowledge of the prejudice "of the judge first came to the defendant at 11:00 a. m. on the day the case was called for trial. In Binga v. Martin, 174 Ill. App. 217, it appears that when the case was called for trial, defendant moved for a continuance, supporting her motion by an affidavit as to the absence of a witness and what such witness would testify, if present. Counsel for plaintiff admitted that if the witness were present she would testify as stated in the affidavit. The motion, for a continuance was then denied. Immediately following this denial, defendant presented a petition praying for a change of venue, which was denied. On appeal, this court said (218):

“Considering the time when, and the manner in which, this motion was made, we are of the opinion, by reason of the statutory provisions relative to a change of venue in civil cases, that the court’s ruling was proper.”

In Mockler v. David F. Thomas & Co., 273 Ill. App. 121, an opinion by Mr. Justice Francis Wilson, it was held that the trial court erred in denying a motion by plaintiff for a change of venue. The motion was filed on August !, 1932. In that case the defendant insisted that the petition was filed for a delay. The court said (123):

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

The reasonable inference is that if the record showed that Moclder, the plaintiff, requested a continuance on August 1, 1932, the action of the court in denying his subsequent motion for a change of venue would have been sustained. In view of the fact that the record did not show that plaintiff made such a motion, the Appellate Court held that the petition for a change of venue should have been granted, and reversed the judgment, with directions to grant such petition.

The defendant filed its appearance in the instant case on October 8, 1941. The trial of a wage claim should not be unduly delayed. The record does not show why trial was delayed until April 22, 1942. In its brief defendant states that the case was continued several times and was finally set for trial before Judge Mason Sullivan for April 22, 1941 in room 1109, city hall; that on that date Judge Sullivan was absent and Judge Green came from his courtroom to make Judge Sullivan’s call of cases; that Judge Green made the call of cases and set the cause to be heard by himself; that this occurred about 10:00 a. m. on April 22, 1942 and was the first time the defendant learned that Judge Green was to hear the case; that defendant immediately prepared and presented a petition for a change of venue; that when the case was called within the hour before Judge Green, counsel for defendant suggested that the cause be sent to the chief justice for reassignment to another judge; that Judge Green stated: “You are going to go to trial here,” and denied the petition for a change of venue. The statements made in defendant’s brief are not supported by the record. The record shows that when the case was called for a second time at 11:30 a. m., defendant asked for a continuance. This motion being overruled, the defendant presented its petition for a change of venue. The petition for change of venue states that “such prejudice first came to the knowledge of this defendant on April 22, 1942 at the hour of 11:00 a. m.” Hence, the record before us shows that at 11:00 a. m. defendant had knowledge of the alleged prejudice; that at 11:30 a. m. defendant moved for a continuance and that on denial of that motion defendant presented its petition for a change of venue. If the defendant had asked the court to delay the trial for an hour or some such reasonable period in order to permit the defendant to prepare a petition for a change of venue, the situation might be different. We have disregarded all the statements and arguments not supported by the record. The record before us brings this case within the rule announced in Binga v. Martin, 174 Ill. App. 217.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


author: Mr. Justice Dady

text:
    In re Estate of Margaret O’Donnell, Deceased, R. R. Funk, Administrator.
    Gen. No. 9,367.

      Opinon filed February 24, 1943.
    Rehearing denied May 4, 1943.
    A. M. Fitzgerald and Walter T. Day, both of Springfield, for appellant.
    B. M. Biggs, of Winchester, and A. W. Schimmel, of Pittsfield, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

On April 21, 1938, the county court of Scott county entered an order revoking letters of administration in the estate of Margaret O’Donnell, deceased, which letters had theretofore been issued out of said court to B. B. Funk, as public administrator. Funk as such administrator attempted to take an appeal from such order to the circuit court of Scott county. Appellees state in their brief, and as the record shows nothing to the contrary, we will assume that the attempted appeal was taken without any order from the county court granting leave to appeal and fixing the amount of the appeal bond, but simply by the filing in the county court of the appeal bond hereinafter set forth and having the same approved by the judge of the county court, and by thereafter filing in the circuit court the transcript on appeal, including such bond.

On May 10,1938, there was filed in said county court and approved by the then judge of said court, in the matter of said estate, an appeal bond in words and figures as follows:

“Know all men by these presents, That we B. B. Funic and A. M. Fitzgerald and Walter T. Day as principal, are held and firmly bound unto A. M. Fitzgerald and Walter T. Day as sureties, in the penal sum of $100.00, for the payment of which . . . we . . . bind ourselves . . . jointly and severally, firmly by these presents. ...

“The condition of. the above obligation is such, that whereas, the said Cletus O’Donnell and Kathryn Green did on the 21st day of April, 1938, in the county court . . . obtain a certain judgment or order therein revoking letters of administration heretofore issued to said R. R. Funk, administrator, from which said order the said R. R. Funk, as administrator has prayed for and obtained an appeal to' the circuit court of said county. ...

“Now, if the said R. R. Funk, administrator, shall prosecute his appeal with effect and shall pay all costs occasioned by said appeal, then the above obligation to be void, otherwise to remain in full force and effect.

R. R. Funk (Seal)

A. M. Fitzgerald (Seal)

Walter T. Day (Seal)”

On May 11, 1938, a transcript of the proceedings in the county court, together with such appeal bond, were filed in the circuit court. No further proceedings appear to have been had in the circuit court until February 19,1942, on which date the two sole heirs-at-law of the decedent, who are the appellees herein, filed and entered in the circuit court their special appearance for the sole purpose of moving to dismiss the appeal for the reason that “1. No appeal bond was ever filed in said cause, 2. No appeal bond was filed within the time prescribed by statute to perfect said appeal.” On the same day Funk, as administrator, as appellant, entered in the circuit court his cross motion for leave to. file a proper bond.

On April 30,1942, the circuit court entered an order dismissing, the appeal on the gound that no appeal was taken or perfected by R. R. Funk, as administrator for the estate of the decedent.

Funk, as administrator, brings this appeal from such judgment of the circuit court.

While such order of dismissal did not expressly state that the cross motion for leave to file a proper bond was denied, the effect of such order was to deny the cross motion.

• Appellees contend that the appeal was properly dismissed because the record does not show any prayer for appeal to the circuit court or any order of the county court allowing such appeal or setting forth the conditions of the appeal bond.

The only case cited by appellees as authority for the proposition that an appeal cannot be taken without a prior order of court allowing the same is Knox v. Maher, 261 Ill. App. 159. The Knox case involved an appeal from an order of the probate court, the procedure in which was expressly governed by section 11 of the Probate Courts Act (par. 309, ch. 37, Ill. Rev. Stat. 1939). Such section concerns only appeals from the probate court and has no reference to appeals from the county court in probate matters.

The appeal in the present case was taken-from an order of the county court sitting in probate, and at the time the appeal was taken there were two statutes setting forth the procedure which might be followed in perfecting the appeal. Section 124 of the Act of 1872 on “Administration of Estates” (par. 126, ch. 3, 111. Rev. Stat. 1939), as amended in 1937, provided that “Appeals shall be allowed from all judgments, orders, . . . of the county court, in all matters arising under this act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order ... of such court ... as in other civil cases, and bonds with security to be fixed by the county . . . court.” Section 122 of the County Courts Act of 1874 (par. 294, ch. 37, 111. Rev. Stat. 1939 [Jones 111. Stats. Ann. 36.176]) provided that “Appeals may be taken from the final orders ... of the county courts to the circuit courts ... in all matters . . .• upon the appellant giving bond and security in such amount and upon such conditions as the court shall approve, except as otherwise provided by law. ...”

The first question to be determined is whethér the procedure laid down for the taking of appeals under section 122 of the County Courts Act, which act was passed two years after the Administration of Estates Act, superseded the procedure provided for under section 124 of the Administration of Estates Act. In Lewis v. Flowree, 32 Ill. App. 314, the court considered this precise question and stated at page 316 ‘ ‘ There is no necessary repugnance between sec. 124, ch. 3, and the section last quoted (being sec. 122 of the County Courts Act). Both may stand and either may be invoked in taking an appeal from the county to the circuit court. Bruce v. Schuyler, 4 Grilm. 221; Fowler v. Pirkins, 77 Ill. 271; Steele v. Steele, 89 Ill. 51.”

We do not regard the case of Hall v. First Nat. Bank of Pittsfield, 330 Ill. 234, as opposed to the doctrine laid down in the Lewis case. In the Hall case the court was concerned only with an unsuccessful attempt to perfect an appeal which had been initiated under section 122 of the County Courts Act. The opinion contains no discussion of section 124 of the Administration of Estates Act or of any of the prior-decisions of our courts of review on the question involved and we do not regard it as overruling the express holding of the Lewis case, supra.

Where an appeal is taken under section 124 of the Administration of Estates Act no order of court is required granting the appeal and fixing the conditions of the appeal bond. (Mundy v. Mundy, 230 Ill. App. 266.) In taking appeals under section 124, the same procedure applies as in appealing from justices of the peace. (See Hepner v. Hepner, 112 Ill. App. 598, and cases there cited.)

Under the authority of the Mundy case, supra, we think that the filing of the appeal bond by the appellant without securing any order of court was sufficient to perfect the appeal provided that the appeal was in other respects regular.

We now come to the appellees’ contention that the bond in question was not a sufficient bond on which to base the appeal but was in fact a nullity. Appellees criticise the bond in these respects: 1. The bond does not name any proper obligees as Funk and the two individuals signing the bond as obligors are also named as obligees in the bond, instead of appellees;

2. the bond fails to refer to any estate whatever; and,

3. the bond names Funk individually as principal instead of Funk, as administrator.

Although the bond in this case is extremely informal, it has been the uniform policy of our courts of appeal to be liberal in the granting of a cross motion to file a proper appeal bond, especially where the appeal was apparently taken in good faith and a fair endeavor was made to perfect the appeal.

The following are only a few of the many cases which enunciate this policy:

In Schofield v. Thomas, 231 Ill. 114, an appeal was taken by Schofield from the probate court to the circuit court. In the circuit court Thomas moved that the appeal be dismissed for want of jurisdiction, which motion the circuit court denied. On appeal to the Supreme Court, that court said that the appeal bond was insufficient because it was payable to the People of the State of Illinois instead of to Thomas, but that “as .an attempt was made to file a bond the proper course would have been to have ruled Thomas to file a new bond and only to dismiss the appeal upon a failure to do so.” The Supreme Court reversed and remanded the cause to the circuit court with directions that Schofield be given leave to file a new bond.

In Dunaway v. Campbell, 59 Ill. App. 665, three administrators appealed to the circuit court from an order of the county court in probate which directed them to make a restatement of their account. On motion of the appellee the circuit court dismissed the appeal because of the insufficiency of the appeal bond. On review the Appellate Court said: “The appeal bond

was defective, in form at least, but the executing and filing it within the twenty days fixed by the order, was an honest attempt to comply therewith, and brought the plaintiffs in error within operation of the rule announced in the cases cited and entitled them to the benefits of its application in support of their cross-motion. In our judgment the court erred in overruling the same and in dismissing the appeal.”

In re Estate of Boening, 274 Ill. App. 434, an appeal was taken to the circuit court from an order of the probate court allowing a claim. The claimants entered their special appearance in the circuit court and moved that the appeal be dismissed because of the insufficiency of the appeal bond. The circuit court struck the first bond but allowed the filing of a new bond over the objection of the claimants, who still appeared specially. On appeal the Appellate Court held the second bond insufficient, but reversed and remanded the cause with directions to permit the filing of a new appeal bond in the circuit court.

In Ford v. First Nat. Bank of Stuart, Iowa, 201 Ill. 120, it appears that in a probate matter Ford had appealed from the county court to the circuit court. On review, the Supreme Court said: “The contention that the court did not have jurisdiction of the case and that the executor was not a party to the bill is insisted upon. This contention is based on the fact that when the bond was filed in the county court to take the case to the circuit court, Trimble, executor, was not mentioned as an obligee in the bond, and it is insisted, therefore, that he was not a party to the appeal. . . . There was a bond given in proper form and in the amount required by the court, and the omission of the name of the executor, Trimble, as one of the obligees, was but an imperfection or defect that could have, and doubtless would have, been cured had the proper steps been taken.”

In Griswold v. Smith, 116 Ill. App. 223, Smith was one of the executors of an estate. After an order had been entered discharging him he moved the probate cotirt to set aside the order and allow his fees as one of the executors; this motion was denied and he appealed to the circuit court. On review the Appellate Court said: “As a further reason why the circuit court should have dismissed the appeal it is said that the appeal bond to that court is not in conformity with the order granting the appeal in that it allows an appeal to Willis D. Smith, executor, etc. in his representative capacity, whereas the bond is executed by him as an individual. . . . Furthermore, the precise point is made in this court for the first time. Had it been made in the court below, a new bond might have been filed.” On further appeal this holding was affirmed by the Supreme Court in 221 Ill. 341.

We think that appellant has at least shown an attempt made in good faith to execute an appeal bond, and that the circuit court erred in refusing to grant appellant’s cross motion for leave to file a good and sufficient bond within a reasonable time.

Appellees make the further point that the bond was improperly approved by L. Allen Watt as county judge instead of by Lee Capps as county judge,' the latter judge having heard the cause on a change of venue from Judge Watt, and Judge Capps having signed the order of dismissal. No authority is cited on this question by either party. Notwithstanding the change of venue, the fact remains that Judge Watt was the judge of the county court at the time he so approved the bond, and under the authorities already cited we believe such approval was at most a mere irregularity that could be cured by the filing of á proper bond, and not such an irregularity as would justify the dismissal of the appeal. No specific objection was made on this point in the circuit court and if this was such a defect as could have been cured had objection been made, any irregularity, if there was one, will be considered as waived. (Griswold v. Smith, supra.) In Hepner v. Hepner, 112 Ill. App. 598, an appeal was taken under section 124 of the Administration Act and under the direction of the court the bond was erroneously approved by the clerk of the court rather than by the court itself. When a motion was made to dismiss the appeal by reason of this irregularity, the appellant made a cross motion to correct the irregularity and the court held that such cross motion should have been allowed.

For the reasons indicated the judgment of the circuit court is reversed, and the cause is remanded to that court with directions to that court to allow the cross motion of appellant to file a good and sufficient appeal bond within a reasonable time to be fixed by such court, and if such bond is filed and approved to then deny the motion to dismiss the appeal.

Reversed and remanded with directions.


author: Me. Justice Hates

text:
    William R. Houston, Trustee, Appellant, v. Whitney Ingels and Mary C. Ingels, Appellees.
    Gen. No. 9,343.
    Opinion filed February 24, 1943.
    Rehearing denied May 4, 1943.
    Brown, Hay & Stephens, of Springfield, for appellant; Robert W. Williamson and Albert C. Sohlipf, both of Springfield, of counsel.

      Thomas W. Hoopes, of Springfield, for appellees.
   Me. Justice Hates

delivered the opinion of the court.

Plaintiff, William R. Houston, trustee in bankruptcy of A. P. Rodewald' and George Dyson, copartners, and A. P. Rodewald and George Dyson, individually, filed a complaint in the circuit court of Schuyler county on August 1, 1940, - alleging that defendants executed a certain promissory note at Rushville, Illinois on March 1, 1929, payable to Rodewald and Dyson, which note was in the sum of $2,320, and contained a power of attorney to confess judgment thereon waiving and releasing all errors. Said complaint also alleged that William R. Houston is now acting as trustee of the estates of A. P. Rodewald and George Dyson, copartners and individually, in bankruptcy No. 7762, and as such has succeeded to all of the right, title and interest which the said partnership or which the said individuals had in and to said promissory note, and that the amount due and owing, including principal, interest and attorney’s fees, was stated to be $3,452.35. The original note was attached to the complaint.

An affidavit of George Dyson, filed "with the complaint, stated that the affiant was acquainted with the handwriting of the defendants, the makers of the note and power of attorney, and that the signatures were the genuine signatures of the defendants, and that the defendants were still living. Defendants, answering by way of cognovit, appeared by their attorney, and confessed judgment and further agreed “to waive and release all errors which may havé intervened in any such proceeding, and consent to immediate execution upon such judgment.” Judgment by. confession in vacation was entered by the clerk and execution issued thereafter which was returned not satisfied.

On September 21,1940 the defendants limiting their appearance for the sole purpose of the motion, filed a motion to vacate the judgment theretofore entered against them and to quash the execution. On November 6, 1941 defendants, by their attorney, obtained leave of court to amend their motion to vacate to include among the other grounds for said motion that the complaint filed by plaintiff did not show that defendants resided in Schuyler county, Illinois, or had property in that county, or that the note was executed in Schuyler county. On December 4, 1941, the circuit court of Schuyler county entered an order vacating the judgment and dismissing the suit, and plaintiff has appealed to this court to reverse said order of the circuit court.

The principal controversy here is over the effect of the failure of plaintiff to allege in Ms complaint that defendants resided or had property in Schuyler county where the action was brought or that the note was executed in that county. Section 50, paragraph 5, chapter 110, Ill. Rev. Stats. 1941 [Jones Ill. Stats. Ann. 104.050], of the Civil Practice Act provides that an “application to confess judgment, whether made in term time or vacation, shall be made in the county in which the note or obligation was executed or in the county where one or more of the defendants, reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants. A judgment entered by any court in any county other than these herein specified shall have no force or validity, anything in the power to confess to the contrary notwithstanding.”

It appears from the face of the note that it was executed at Rushville and this court can take judicial notice that Rushville is located in Schuyler county, Illinois, and is the county seat. Thus, as a matter of fact, this action was brought in the county where the note was executed. Defendants contend, however, that the judgment here was entered by the clerk in vacation, and that in entering the judgment the clerk performed only ministerial duties and that he could not take judicial notice that Rushville was in Schuyler county. They therefore argue that he had no authority to enter up the judgment.

We do not agree with this argument. As was pointed out in Long v. Coffman, 230 Ill. App. 527, “The action of a clerk in entering a judgment by confession in vacation is wholly ministerial. His duties are imposed upon him by the statute and he has no discretion in the performance of them. He is given no power to interpret or to construe the language employed in a note, nor has he the power to pass upon the legal sufficiency or aptness of such language. When he is presented with what purports to be a declaration, a warrant of attorney and a cognovit with such affidavits as may be required, he cannot question the validity or sufficiency of any instrument so presented to him. It is mandatory upon him to file the papers and to enter the judgment. If any of the papers are insufficient, the remedy is to be found in the court, where application can be made to vacate the judgment or to open it up and for leave to plead.” Thus it was clearly the duty of the clerk to enter the judgment in this case when the. necessary papers were presented to him.

Nor do we believe that the judgment so entered was void under the provisions of section 50 quoted above. As we interpret that section, a judgment by confession has no force or validity where as a matter of fact it does not comply with the requirements therein set forth. Thus, defendants on their motion to vacate were required to assert not only that there was no allegation that the note was made in Schuyler county, but also that as a matter of fact it was not made there. It is significant that nowhere in defendants’ motion is there any averment that said defendants did not reside in Schuyler county or that they did not execute the note in that county.

The defendants make the contention that the judgment was only entered against one of the defendants, and this is based on the fact that in writing up the judgment the word “defendant” is used in the singular rather than the plural. This point was not raised in the lower court and cannot now be asserted here.

We have examined very carefully the other grounds assigned for error by the defendants in support of their claim that the judgment is void, but find them without merit. They are of such nature that they were waived by the cognovit under the warrant of attorney included in said note. For the reasons herein indicated, the judgment of the circuit court of Schuyler county is reversed and remanded to said court with directions to enter an order vacating its judgment of December 5, 1941, and in lieu thereof enter an order denying the motion of the defendants to vacate said judgment.

Reversed and remanded with directions.


author: Presiding Justice Riess.

text:
    People of the State of Illinois, Defendant in Error, v. William A. Doss, Plaintiff in Error.
    Gen. No. 9,373.
    opinion filed February 24, 1943;
    rehearing denied May 4, 1943.
    William A. Doss, pro se;

    A. M. Fitzgerald and William T. Day, for plaintiff in error;
    Oliver D. Mann, Special State’s Attorney, for defendant in error.
   Opinion by

Presiding Justice Riess.

“Hot to be published in full.”


author: Justice Dady.

text:
    Virginia Ziegler et al., Appellants, v. Arthur Perbix et al., Appellees.
    Gen. No. 9,374.
    opinion filed February 24, 1943;
    rehearing denied May 4, 1943.
    M. J. Brown and Herbert W. Dey, for appellants;
    L. C. Arnold, Vaught, Foreman & Cleary, W. R. Bellatti and Albert W. Hall, for appellees;
    O. N. Foreman and E. W. Cleary, of counsel.
   Opinion by

Justice Dady.

“Not to be published, in full.”


author: Justice Hayes.

text:
    Ollie E. Goodman, Appellee, v. Tri-State Mutual Life Association, Appellant.
    Gen. No. 9,366.
    opinion filed February 24, 1943;
    rehearing denied May 4, 1943.
    T. Mac Downing, Samuel Naylor and Samuel J. Naylor, for appellant;
    Melburg & Love, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


text:
    Marshall Feggett, Appellee, v. Chicago and Eastern Illinois Railroad Company, Appellant.
    Gen. No. 9,369.
    opinion filed February 24, 1943;
    rehearing denied May 4, 1943.
    Acton, Acton, Baldwin &
    Bookwalter, for appellant;
    D. S. Baldwin, of counsel;
    Alfred A. Johnson, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


author: Mr. Presiding Justice Riess

text:
    Launa McNaghten and Stuart E. Kelley, Appellees, v. Northwestern Mutual Life Insurance Company, Appellant.
    Gen. No. 9,357.

      Opinion filed February 24, 1943.
    Opinion modified and rehearing denied May 4, 1943.

      Scott, MacLeish & Falk, of Chicago, and Wirt Herrick, of Clinton, for appellant; Wendell J. Brown, of Chicago, of counsel.
    Frank K. Lemon and Grover W. Watson, both of Clinton, for appellees.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Northwestern Mutual Life Insurance Company, a corporation, defendant herein, has appealed from a judgment of the circuit court of DeWitt county which was entered on March 3,1942, in the sum of $2,000 and accrued interest and costs, in a suit at law upon a life insurance policy issued by said company. The judgment was recovered by the plaintiffs appellees, Launa MeNaghten as the beneficiary, and Stuart E. Kelley as assignee of a half interest in the policy contract which had been duly issued by the defendant company on September 15, 1923, to Ralph Waldo MeNaghten, the husband of said beneficiary. The suit was filed more than seven years after the disappearance of the assured on December 11, 1926, and was based upon the actual or presumptive death of the assured. Motions for a directed verdict and for new trial were interposed by the defendant and denied by the court, and after judgment, defendant perfected its appeal to this court.

The verified complaint, as amended, set forth that the policy sued on was so issued at an annual premium rate of $70.18, which was regularly paid in advance by the assured to the date of September 15, 1927; that on December 11, 1926, the assured disappeared from his home and family at Farmer City, Illinois; that he wrote a postal card from Chicago to his youngest son on that date, but was never thereafter seen nor heard from by any member of the family, friends, acquaintances or other persons, so far as plaintiffs knew or were able to ascertain after diligent inquiry and effort to locate him; that the annual premium due and .payatóle in advance on September 15, 1927, was not paid when due nor within the 30' days grace period thereafter ; that under the terms of paragraph 12 of said policy, the insurance had become automatically converted into nonparticipating term insurance for its face amount for the extended period from September 15,1927, to January 10,1934; that at the expiration of seven years and within the term of said extended insurance, the assured in fact died or became presumptively dead; that a half interest in the policy was duly assigned to coplaintiff Stuart E. Kelley on January 14, 1938; that due proof of death of the assured was made and all conditions precedent were performed by assured and plaintiffs and after refusal of defendant company to pay the policy claim, suit was filed for the recovery thereof.

Defendant’s answer admitted issuance and delivery of the policy, payment of premiums in advance to September 15, 1927, and conversion of the policy into nonparticipating term insurance for the extended period from September 15,1927, to January 10,1934; denied due proof of death and averred lack of knowledge as to the alleged disappearance of the insured on December 11, 1926; denied diligent inquiry in relation thereto by plaintiff and friends or other persons for them, or that McNaghten was actually or presumptively dead; averred that certain persons had seen McNaghten since his disappearance and denied plaintiffs’ right of recovery on the policy. Plaintiffs’ verified reply traversed the new matter set up in defendant’s answer.

The policy sued upon contained the usual provision that “Except for non-payment of premium this policy shall be incontestable after one year from its date of issue if the Insured be then living; otherwise after two years from its date of issue.”

At the beginning of the trial, it was stipulated into the record by the parties that “The whole question to be considered by the jury in this case is whether or not Ralph W. MeNaghten, the insured, was presumptively dead on or before January 10,1934.”

The assured and beneficiary were lawfully married on September 1, 1901, and had reared a family of two boys, both now surviving. Assured first worked as a farm hand for one year and then engaged in tenant farming on his own behalf until 1922. He then quit farming and moved into Farmer City, having previously served two terms as a township highway commissioner. Before leaving the farm in 1922, he became an agent for the sale of road machinery for the firm of Lockett & Spencer, of Peoria, representing them in territory comprising several Illinois counties. He continued in that occupation after leaving the farm until his final disappearance from Farmer City on December 11, 1926.

The testimony of Launa MeNaghten, her sons and other of plaintiffs’ witnesses tended to show that the assured was not a drinking man, was not cross, but had a good disposition, did not quarrel with his wife and that they had no serious disagreements; that he . helped her with the household and laundry work while on the farm; that on Friday before the Saturday morning on which he left home, he went to Champaign on business and was accompanied by his wife, who did shopping there with money which he gave her, and that evening they attended a picture show together upon their return to Farmer City; that he was affectionate to his family, gave sons a pony and automobiles and spending money and always had supported his family; that he spent the nights at home when possible, attended basket ball games and athletic events with his sons and apparently lead a normal and congenial family life; that on Saturday morning of December 11, 1926, he left on the morning train on an alleged business trip to Iroquois county in pursuit of his employment, stating that he expected to return home by train that evening; that he was driven to the train by his youngest son, Leslie, aged 17, in a car which had been given to the latter, by his father in which to attend high school; that there had been no quarrel between the parents nor with either of the sons and the father bade his wife an affectionate good-bye on that morning as usual; that their oldest son, Lyle, aged 24 years, was married, had a small son of whom assured was very fond and that Lyle was employed as caretaker of the Le Roy Country Club; that assured was born in 1880, health “alright,” had “bad eyes,” wore glasses, worked “right along”; that assured had three sisters and a father living in Indiana; that when he left home, he owed two principal notes for $2,800 and interest thereon to the First National Bank of Le Roy, but that the bank was not pressing him for payment of his obligations at that time; that he owed certain accounts for garage, labor and repairs and for clothing and other necessaries aggregating $307.63; that aside from his commissions on sales, which were alleged to be substantial, his personal property consisted of household goods, two automobiles, a cow and a calf, a small balance in a checking account in the bank against which his wife had been permitted to check, together with some earned commissions due from his employer which were later paid to the wife; that he left three life insurance policies then in force, being one for $3,000 in defendant company in addition to the policy sued on and a $2,500 policy in the Bankers Life, in all of which his wife was named as beneficiary, Testimony was also given by the beneficiary, her two sons, Stuart Kelley, and certain other witnesses -for plaintiffs, concerning various inquiries made to post offices, associates, bank, insurance agents, employers, relatives and other persons in efforts to locate or learn what had become of the assured after his disappearance, all of which were unsuccessful. We need not set forth in detail the evidence of various efforts made to locate the assured or ascertain what became of him. Much evidence was heard thereon. It appears that neither the plaintiffs nor the defendant were ever able to learn what became of the assured after his disappearance.

Defendant company offered certain testimony by witness Roy Bryan to the effect that in the fall of 1927 or 1928, he had seen and spoken to the assured at a machinery exhibit tent at 'the Peoria exposition. Cross-examination developed that it was uncertain whether the time was before or after the date of disappearance, and the witness stated that he did not remember whether or not he had previously testified that “it could have been in 1926.” In rebuttal, Charles Spencer, of the firm of Lockett & Spencer of' Peoria, by whom the assured had been employed as a salesman since 1922 and who had been in attendance at the firm’s annual fair exhibit in 1926 and previous years, testified that the firm had an exhibit at the exposition both in 1927 and 1928 at which Spencer spent many hours of his time and that he did not see Mc-Naghten either at the exhibit tent or on the fair grounds either year. The alleged incident does not appear to have been reported to Mrs. McNaghten or the children.

Wilbur Forbes testified that he thought he saw assured driving a Ford car on two occasions while passing in opposite directions along a highway between Le Roy and Farmer City when the respective cars were traveling about 30 or “35 or 40 miles” an hour, “but was never positive” whether it was after .the date of his disappearance. This witness also admitted that he had testified at a previous trial that he “did not believe that I ever really was sure that it was Ralph,” that it looked like Ralph, but for me to say that I think it was Ralph, I would not be sure; that there were four men in the car when witness passed them and he only had a glance and had testified at the former trial that he “did not have time enough to look at him and be positive. ’ ’

Witness Arthur Giles testified to his introduction by the assured to a woman at the exhibit tent at the Peoria fair which he stated to be either in the year 1923, 1924, 1925 or 1926, but that he could not say which, and that assured had several rooms at the Metzger Hotel for use of prospective customers and friends; that witness and others slept in the rooms; that the witness took the woman to dinner and to a theatre in the evening and left her at the hotel that night and on the following morning, after speaking to assured, took the woman, whose name he could not give, to a depot of one of the railroads, but which of the railroads he could not recall, bought her a ticket to a destination which he could not remember, paid for her ticket and later got the money back from the assured ; that he was shown a letter from the woman by assured in the summer or fall before the latter left home in which she had invited assured to come to Milwaukee, and assured suggested that he and witness go there, but they did not go. Objections to oral proof of the contents of this letter and its materiality were made and sustained. It is conjectured that the assured may have later met this woman. Whether that is a reasonable inference from the evidence or whether the vague and uncertain statements of this witness were credible, reasonable or worthy of belief, when considered with all other facts and circumstances in evidence, was a matter for the jury to determine. Launa McNaghten testified that she attended the fair in 1923, was with her husband and he returned home at night with her.

The postal card referred to was received on the morning of December 13, 1926, by the son Leslie and had been mailed from Chicago on December 11th at 12:00 p. m. addressed to the son, which read “Am in Chicago. Don’t know when I will be home. Don’t worry. Dad.” That appears to have been the last that was ever heard from him by any member of his family or by any other person so far as the testimony shows. Much favorable testimony was given concerning the father’s treatment and filial attitude toward his family; his work as a successful and satisfactory salesman of road machinery; the fact that the wife knew that he had once gone away to Rockford for a brief period in 1905 when confronted by financial difficulties; that the defendant company had corresponded with plaintiff’s counsel after letters of administration were taken out by the wife in 1939 following proof of presumptive death in the probate court; that in the course of the company’s correspondence and inquiries, they gave addresses of men of similar names to that of the assured who had taken out automobile licenses in Dakota and Indiana, which proved upon inquiry, not to have been the assured but to be other persons; that the company finally disclaimed liability under the policy and the suit then followed. In view of the conflicting and voluminous testimony offered as to whether assured was or was not seen; the lapse of time, vague memories, uncertain and inherently contradictory nature of the testimony of those who claimed to have seen or spoken to him either before or shortly after his disappearance, which recitals materially varied from their testimony at a previous trial; the nature and extent of numerous inquiries made by the assured’s beneficiary, family and friends in seeking to locate the assured and the measure of diligence exercised in so doing, became controverted questions of fact under the evidence herein. The credibility of the witnesses and the preponderant weight and probative value of the testimony were peculiarly matters for the consideration of the jury which saw and heard the witnesses testify. Certainly, the period of fifteen years which had elapsed after assured’s disappearance and before the date of the trial, coupled with the vague, conflicting and partially impeached statements of witnesses, whose testimony was offered by the defendant to rebut and overcome any presumption of death prevailing at the end of seven years and before the expiration of the extended insurance period on January 10, 1934, rendered the credibility and probative value of all such evidence, when considered with plaintiffs ’ testimony in relation thereto and of all that transpired before and after such disappearance, questions of fact which were found and considered by the jury and by the trial court adversely to the contentions of the defendant.

The applicable and controlling rule of law concerning the presumption of death after seven years of unexplained absence of the assured from his home and usual place of abode, followed by diligent efforts to ascertain his whereabouts, is fully considered in a case wherein the facts were in many respects similar to ' those in the case at bar and wherein a judgment of the trial court was affirmed by this court and by the Supreme Court, as set forth in Kennedy v. Modern Woodmen of America, 149 Ill. App. 471; 243 Ill. 560, 566, 90 N. E. 1084, in the following language: “The law is well settled in this State that where a person leaves home with the expectation of returning thereto within a short time and he remains away and his absence is unexplained and unaccounted for and no intelligence is received from him and he is not heard from, and his whereabouts cannot be ascertained although diligent search and inquiry are made in the vicinity of of his home and at such places as he would be likely to go and from such persons as he would be likely to meet and know and nothing is heard from or of him, and he . remains away from his family and home for the period of seven years, a presumption arises from these facts that he is dead, unless there are other facts and circumstances shown which will rebut and overcome such presumption of death.” Proof of such inquiry made both before and after the expiration of seven years of absence may be made, and proof of further inquiry .made thereafter is not improper. Kennedy v. Modern Woodmen, supra. The rule of law is well established that the continuous absence of a person from his home or place of residence for seven years, during which period nothing is heard from or concerning him, raises the presumption of his death for all legal purposes. Tegtmeyer v. Tegtmeyer, 348 Ill. 434, 439, 181 N. E. 297; Eddy v. Eddy, 302 Ill. 446, 134 N. E. 801; Reedy v. Millizen, 155 Ill. 636, 40 N. E. 1028.

An examination of the Illinois cases indicates that the prerequisites which justify a presumption of death after seven years of continuous absence are: (1) that the person whose death is in question has disappeared from his last known abode, domicile or place of residence; (2) that he has neither returned thereto nor communicated with those with whom he would naturally communicate, if alive, during the ensuing" period of seven years; (3) that diligent inquiry has been made at his last known place of abode of the persons who would naturally hear from him without obtaining information indicating that he is alive. Out of such proof, a presumption of death arises for all legal purposes, which presumption is rebuttable and may be disproved by competent evidence that the party so presumed to be dead is in fact alive. Carey v. Metropolitan Life Ins. Co., 305 Ill. App. 308, 27 N. E. (2d) 634; Piersol v. Massachusetts Mut. Life Ins. Co., 260 Ill. App. 578; Eddy v. Eddy, supra.

We hold that defendant’s assigned error that the verdict is contrary to -the manifest weight of the evidence is not sustained by the record. Concerning defendant’s motion for a directed verdict in its favor, we hold the applicable rule of law to be that when it appears that plaintiff has introduced material and relevant evidence which, with all reasonable inferences arising therefrom, when viewed in the light most favorable to the plaintiff, fairly tends to prove the material allegations of the complaint setting forth plaintiffs’ cause of action, the motion for a directed verdict should be denied. We find and hold from the evidence that the trial court properly denied defendant’s motion for a directed verdict herein.

Error is assigned in the admission of testimony concerning a certain alleged self-serving statement of assured by witness McKinley to the effect that the assured was giving up the farm because there was too much work for Mrs. McNaghten, that there was no tenant house and help was too hard to keep. This was merely cumulative of testimony of Mrs. McNaghten given without objection thereto on a matter not controverted by other evidence, was of minor import and could not, in our opinion, have been in any way prejudicial to the defendant. An offer was made to show by witness Spencer that in 1923 at the Peoria fair, the time not being specified, but apparently prior to issuance of the policy on September 15th of that year— McNaghten made some remark about having some woman at the hotel, whose identity was not disclosed. This purported remark or alleged statement against interest was offered as corroborating Giles, who spoke of some woman being there in either 1923, ’24, ’25 or ’26. It might have tended to reflect on the morals of the defendant who became insured that year under the policy containing an incontestible clause, but containing no provision concerning assured’s moral conduct. Although the policy contained a clause reserving right to change beneficiary, and hence the latter had no vested interest in the policy, the offered evidence did not thereby become admissible as an exception to the hearsay rule as contended by defendant, since it was not an admission or declaration against McNaghten’s pecuniary interest in the policy, and in no way concerned nor affected any of the terms or provisions of the policy contract nor any interest thereunder. We hold that it was not error to exclude the purported statements under the circumstances indicated. The same is true concerning proof" of the purported contents of a letter which Giles said he read in the summer or fall of 1926 and for the introduction of which no proper foundation had been laid. In the trial court’s rulings on the admission or refusal to admit testimony, we find no prejudicial error.

Further error is assigned in the giving and refusal of certain instructions, which we have carefully examined and considered, but such instructions, when considered as a series, fairly instruct the jury as to the law applicable to the evidence herein and contain no prejudicial nor reversible error. All of the proof fixed the date of the insured’s disappearance from his home and place of abode as December 11, 1926, and the verdict of the jury negatives defendant’s contention that the insured was seen thereafter. The time when the extended term of insurance expired was stipulated by the parties and so read to the jury, as being January 10, 1934. Plaintiffs’ given instruction number 5 and defendant’s instructions numbers 14, 15, 16, 17, 20 and 21 all set forth the necessity of seven years unexplained absence to establish the presumption of death. Defendant’s instructions numbers 16 and 17 expressly required proof of such unexplained absence and that the jury believe from the evidence that the assured was not seen alive by any person for a period of more than seven years prior to January 10, 1934 or in default thereof that a verdict be returned for the defendant. In addition thereto, the respective pleadings alleged said date and the court read to the jury the stipulation that ‘ ‘ The whole question to be considered by the jury is whether or not Ralph W. MeNaghten, the insured, was presumptively dead on or before January 10, 1934.” We deem the jury to have been fully and fairly instructed and advised in writing by the court as to the law governing the issues joined in the pleadings and stipulations by the parties herein.

Concerning alleged prejudicial statements in argument of counsel, which were either based upon the evidence, made in answer to statements of defendant’s counsel or to which objections were sustained and the jury instructed to disregard the same, we likewise find no prejudicial nor reversible error. Defendant’s motion to set aside the verdict and grant a new trial was properly denied.

Believing that the case was fairly tried; that the record is free from reversible error and that substantial justice was done between the parties, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Dady Per Curiam.

text:
    Elsie Springer, Executrix of Will of James Eugene Springer, Deceased, Appellee, v. Illinois Transit Lines, Inc., Appellant.
    Gen. No. 9,359.

      Opinion filed February 24, 1943.
    Supplemental opinion filed and rehearing denied May 4, 1943.
    Griffin, Winning, Lindner, Newkirk & Jones, of Springfield, for appellant; C. Terry Lindner and Montgomery' S. Winning, both of Springfield, of counsel.
    Michael Eckstein, of Springfield, for appellee.'
   Mr. Justice Dady

delivered the opinion of the court. In a trial without a jury, the plaintiff, Elsie Springer, as executrix of the estate of her deceased husband, James E. Springer, recovered a judgment against the defendant, Illinois Transit Lines, Inc., for the sum of $10,495, the court stating that $10,000 thereof was for the alleged wrongful death of the deceased, and $495 for damages to the truck which decedent was driving at the time of his death.

The defendant brings this appeal.

No question of pleading is involved.

The evidence is undisputed.

The evidence shows that the injuries which caused the death of the decedent were received by him on a public highway while he was delivering to a customer, by means of a tank truck, merchandise received by him from a bulk station of the Sangamon Farmers’ Oil Company, a corporation. Such evidence also shows that such company, hereafter referred to as “Oil Company,” and the defendant were at all of the times in question subject to and bound by the provisions of the Illinois Workmen’s Compensation Act.

The only contention of the defendant on this appeal is that the decedent at the time of receiving such injuries was an employee of the Oil Company, as distinguished from an independent contractor, and that therefore the plaintiff cannot recover. It is conceded by both sides that if the decedent was at such time such an employee then there can be no recovery for the personal injuries because of the provisions of the Compensation Act, but that if he was not an employee and only an independent contractor then the judgment should stand.

The Oil Company was engaged in the business of selling petroleum products, such as gasoline, oil, etc., in Sangamon county, Illinois, where it had five bulk stations. Springer was at the time of receiving the injuries and for several years immediately prior thereto had been a tank truck salesman, — that is he sold and distributed to customers by means of a tank truck the products of the Oil Company. Apparently he had no other occupation. There was no written contract of employment between him and the Oil Company. He could be dismissed by the Oil Company at any time, and he in turn could also discontinue the relationship at any time. He was not required to come to or report for work at any particular place of business of the Oil Company at any particular time, but he could come or leave at his will.

The truck belonged to Springer. The tank and other accessories on the truck belonged to the Oil Company. The name “James E. Springer” appeared-on the door of the cab, and the name of the Oil Company appeared on the tank and on the cab above the windshield. Springer was paid no salary, but received from the Oil Company only a straight commission on the merchandise he sold or delivered. This commission was paid him on each Monday. Of such commission 40 per cent was allowed him for the use of the truck and 60 per cent for his work. The 40 per cent was the amount allowed him by'the revenue department in computing his income tax. He paid all of his business expenses out of his own funds. In doing such work he sometimes had helpers, whom he selected and hired and discharged at his will, and such helpers were paid their compensation by Springer from his own funds.

The Oil Company had assigned to Springer certain territory in which he sold and delivered such merchandise, but Springer was permitted to sell in other territory if he made arrangements with the regular tank truck driver in such other territory. The Oil Company had several other tank truck drivers doing similar work under similar circumstances and conditions.

The procedure was that Springer would start out from his home with his tank truck and drive the truck to one of such bulk stations where, without the help of any attendant, he would take on a load of merchandise. He would then make opt and leave at the bulk station a ticket showing the quantity of merchandise which he took out. He might take on four or five of such loads in a single day, depending on the volume of business. After loading the truck Springer would sell and distribute the merchandise in his territory. He had nothing to do with fixing the prices at which the merchandise was sold, but he sold such merchandise at prices fixed and designated to him by the Oil Company. The Oil Company frequently received orders direct from customers which were turned over to Springer and filled by him. Springer solicited customers either on his own initiative or with the help of a representative of the Oil Company. All the merchandise that he took on his truck was charged to him by the Oil Company, not in dollars and cents on the day he took it, but in quantity. The Oil Company furnished him with printed sales tickets which he used in making sales and deliveries. The printed sales tickets, with blanks to be filled in, were headed “Bought of Sangamon County Farmers’ Oil Company,” then followed “Customer’s name,” followed by a blank space; then an itemized list of the merchandise, followed by blank spaces for the amounts sold or delivered and the prices. There was printed on such tickets “Drivers must account for all tickets, — spoiled tickets must be returned with delivery reports”; also the words, “Goods received by -, Purchaser.” There was at the bottom the words, “Received Payment, Sangamon Oil Company, By-, Agent.” On making a delivery to a customer Springer would insert in the blank spaces the name of the customer, the date of the sale, the quantity and the price. If the customer paid cash Springer signed the receipt of payment and delivered the original copy to the customer, and thereafter returned a copy to the Oil Company; if the customer did not pay cash, the customer signed the part of the ticket providing for acknowledgment of receipt of the goods, and he.was then given a copy, and a copy was delivered by Springer to the Oil Company.

Each day Springer was supposed to make and send or deliver to the Oil Company a daily report of his sales, with copies of sales tickets, and to turn in to the Oil Company his cash receipts. This he generally did each day, but sometimes three or four of such reports were turned in at one time. The daily report showed what actually happened to the products obtained at the bulk station. Springer was not permitted to keep his commissions out of his receipts, but had to turn in all receipts to the Oil Company. If the unpaid accounts were not paid within 30 days, Springer then paid them to the Oil Company out of his own funds, or they were charged by the Oil Company against his earned and unpaid commissions. In a few instances the Oil Company assumed the credit risk without charging the same against Springer, but these were exceptions. At the end of each month the Oil Company sent out on its bill heads bills to the customers for unpaid goods, and if payments were made thereon they were credited to the account of Springer.

The Oil Company carried, and paid for from its own funds, compensation insurance on all of its tank truck drivers, including Springer, but such insurance did not cover the helpers hired by Springer. Such helpers were covered by compensation insurance carried and paid for by Springer from his own funds. Springer carried liability insurance on his truck and paid therefor from his own funds.

The Oil Company paid a social security tax with respect to the commissions paid Springer and deducted same from his commissions, to which procedure Springer made no objection.

The Oil Company carried under its name an advertisement in two telephone books covering part of the territory assigned to Springer, which'' advertisements listed Springer as the representative of the Oil Company in such territory.

The foregoing is a fair resumé of the facts. The question for us to determine is whether these facts show Springer to have been an independent contractor or an employee of the Oil Company.

In arguing that the deceased was an employee, the defendant contends that the customers to whom Springer sold merchandise were customers of the Oil Company and not of Springer. If Springer was an independent contractor the customers could be considered as his customers. If on the other hand he was only an employee, then the company would be justified in claiming patrons to be their customers and not Springer’s.

Defendant also attaches some significance to the fact that the Oil Company carried compensation insurance covering Springer. However, the evidence also shows that the Oil Company did not carry such insurance on Springer’s helpers, and that Springer himself paid for and carried such insurance on his helpers. All of the compensation insurance may be considered and in fact was a matter of protection, and we do not consider that the carrying of this insurance by the company oh Springer was conclusive as to the question of Springer’s status.

After the present suit was filed plaintiff filed a petition with the State industrial commission in which it was alleged, among other things, that the decedent was injured by an accident “arising out of and in the course of his employment” by the Oil Company. The petition prayed for an award from the industrial commission. The defendant complains of the action of the trial court in excluding this evidence. In our opinion the evidence was properly excluded as immaterial. The allegation in such petition as to employment did not tend to establish or change the actual status of the decedent at the time he received the injuries.

In a case of this nature we believe it necessary to consider all of the evidentiary facts without singling out any isolated facts or circumstances before coming to a conclusion. By reason of variations in facts in particular cases passed on by courts of review, it is difficult to cite any exact precedent. The case which we consider most nearly in point on the question to be decided by us is the recent case of Postal Telegraph Sales Corp. v. Industrial Commission, 377 Ill. 523. In that case one Lewis was injured while employed in selling clocks on a commission basis. The details of his employment closely resembled those of Springer in the present case. Lewis’ first employment was on a commission basis entirely and he was to pay all his expenses of transportation. The clocks were delivered to him but did not belong to him and he did not pay for them. Later he was appointed a supervisor and was still paid a commission and still paid his expenses. He then had the right to and did appoint subsalesmen and received an additional commission on their sales. He had the right to discharge such subsalesmen. He worked independently of supervision and ultimately participated in the earnings of the subsalesmen. The company defined his territory and he was made responsible for any property delivered to him. The company gave him no directions as to how to sell or to whom.

Upon the basis of these facts the court held that Lewis was an independent contractor and not an employee. In arriving at this conclusion the court said at pages 526 and 527 of the opinion: “In a given case, under the facts, whether a person is an employee or an independent contractor is sometimes difficult to determine. This results from the fact that elements pertaining to both relationships may occur without being determinative of the relationship, and no specific rule has been adopted by this court applicable to the facts of all cases. An independent contractor has been defined as one who renders service in the course of the occupation, and represents the will of the person for whom the work is done only with respect to the result, and not the means by which that result is accomplished. . . . It has also been held that if the person for whom the service has been rendered retains the right to control the details of the work and the method or manner of its performance the relation of employer and employee exists. . . . The right to control the manner of doing the work, not the actual control, is an important if not the principal consideration which determines whether the worker is an employee or an independent contractor. . . . Some of the earlier cases define an independent contractor as one who undertakes to produce a given result without in any way being controlled as to the method by which he attains that result. . . . So, also, it has been held that if in the performance of the work hé is not under the control of the employer he is an independent contractor.” In such case three Appellate Court cases- are cited, each of which holds that the relationship there shown was that of independent contractor and not of employee. (Meece v. Holland Furnace Co., 269 Ill. App. 164; Burster v. National Refining Co., 274 Ill. App. 104; Trust v. Chicago Motor Club, 276 Ill. App. 289.)

Defendant cites a number of cases which we believe are distinguishable, particularly on the facts, from the case at bar. In Katsinas v. Colgate-Palmolive-Peet Co., 299 Ill. App. 347, the court merely held that the question of whether a salesman was an employee or independent contractor was properly submitted to the jury as a question of fact. In Flood v. Bitzer, 313 Ill. App. 359, it was not contended that the salesman was not a regular employee, nor was it contended that he was an independent contractor, but the'question was whether at the time of the accident such salesman was acting within the scope of his employment. In Darner v. Colby, 375 Ill. 558, Colby and the Johnson Oil Refining Company were sued for personal injuries. Colby at the time of the accident was driving a truck. The plaintiff contended that Colby was an employee of the refining company, while the company claimed that Colby was not an employee but merely an independent contractor. The Supreme Court held that Colby was an employee and not an independent contractor. It will be noted that the contract of employment between Colby and the company stated that “In accepting employment with the Johnson Oil Refining Company, . . . as its local manager at its bulk station,” and that by such contract Colby agreed to perform the duties in the course of “my employment.” In Kehrer v. Industrial Commission, 365 Ill. 378, the court merely held that the question whether the injured workman was an employee, was a question for the determination of the industrial commission, there being evidence tending to show such fact.

Defendant makes the further contention that the payment by the Oil Company of a social security tax on Springer’s earnings shows that Springer was an employee and not an independent contractor. The case of Postal Telegraph Sales Corp. v. Industrial Commission, supra, expressly holds that the payment of such a tax is not conclusive in determining the status of the person for whose benefit the tax is paid.

The evidence in the case before us shows these salient facts: Springer’s territory was defined in advance. He had the right to hire and discharge his helpers at will. When he had loaded merchandise on his truck such merchandise was immediately charged to him and as a matter of fact thereupon became and thereafter was his merchandise. He could sell such merchandise anywhere and to anyone in his territory. No directions were given to him as to how he was to sell or to whom. He did not report for work to anyone or at any time, but his time was his own so long as he produced results. He received no salary but only a commission depending upon his accomplishments. He was, in fact, .engaged in his own business and paid his own expenses. In our opinion the cumulative effect of this evidence was sufficient to justify the trial court in finding as it did, in effect, that Springer was an independent contractor and not an employee of the Oil Company.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

Supplemental Opinion.

Per Curiam.

A petition for rehearing has been filed calling our attention especially to the recent opinion in Murrelle v. Industrial Commission, 382 Ill. 128.

In the Murrelle case the liability of the defendant company depended on whether Murrelle, the decedent, was an employee or an independent contractor. The Industrial Commission found he was an employee and accordingly made an award in favor of the widow and against the company. On appeal, the Supreme Court affirmed such finding and award. In the Murrelle case some of the facts material to the particular issue were quite similar and some not similar to the facts in the instant case. It will be noted that in the Murrelle case the Supreme Court said that “. . . the existence of the right of control ... is the determining factor in deciding whether deceased was an employee or an independent contractor,” and such opinion states that a former sales manager of the defendant company testified to having hired the deceased, and further testified (apparently without objection) that the deceased was under his direction and control as such sales manager, and that he had the right to control deceased’s work. It will also be noted that the opinion states that the president of such company, when called as an adverse witness by the widow, testified that the decedent “was employed” by such company, and that when such president was thereafter called as a witness for the company the attorney for the company stated of record that the sole purpose of his calling such witness was to show the nature and scope of decedent’s employment by such company. No such evidence or admission appears in the record in the instant case.

In the Murrelle case the question of employment was a disputed question of fact; The Supreme Court there said: “We have repeatedly said the findings of the Industrial Commission on contested-fact issues will not be disturbed unless manifestly against the weight of the evidence. ... It is not for this court to weigh the evidence.” After reviewing the facts, the court said:.“In the light of the entire record we are of the opinion that the Commission was clearly justified in finding that Murrelle was an employee of Organ Brothers Company, . . . within the Workmen’s Compensation Act.”

In the instant case the question of employment of Springer was also a disputed question of fact. It is impossible to lay down a hard and fast general rule by which the status of men can be definitely defined in all cases as employees or independent contractors. Each case must depend on its own facts, and, ordinarily, no one feature of the relation is determinative but all must be considered together (Bristol & Gale Co. v. Industrial Commission, 292 Ill. 16).

In the instant case we are still of the opinion that the trial court was justified in finding that Springer was an independent contractor and not an employee, and we do not consider the Murrelle case to be in conflict with this opinion.

The petition for a rehearing is denied.


author: Mr. Presiding Justice Culbertson

text:
    Allied Coal and Mining Company, Appellant, v. Tyler L. Andrews, Appellee.
    Opinion filed March 2, 1943.
    Rehearing denied April 20, 1943.
    McKinney, Folonie & Grear, of Chicago, for appellant; George H. Grear and Jeffrey Shedd, both of Chicago, of counsel.
    Fred W. Gee and Tohill & Gosnell, all of Lawrenceville, for appellee; Fred W. Gee, Noah M. Tohill and M. E. Gosnell,- all of Lawrenceville, of counsel.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment entered in the circuit court of Lawrence county, in favor of Tyler L. Andrews, appellee (hereinafter called defendant), and against Allied Coal and Mining Company, a corporation, appellant (hereinafter called plaintiff).

Before going into the facts and a consideration of the cause before us, we shall give brief consideration to a motion filed on behalf of defendant to dismiss the appeal, which motion was taken with the case for consideration. The motion to dismiss the appeal is based upon the ground that the sole and only placita appearing in the record was the organization of the May Term, 1938, of the circuit court of Lawrence county, ,and that the order appealed from was entered on the'3rd day of November, 1941, in such circuit court, which is stated to be one of the judicial days of the October Term, 1941, and that the record contains no placita of the October Term, 1941, or a convening order, or that the court was, in fact, in session on the 3rd day of November, 1941.

The office, or purpose, of a placita is to show that the proceedings which are to be reviewed were had before a regularly and properly constituted, and convened, court (Truitt v. Griffin, 61 Ill. 26). Where the record contains a placita of any date prior to the daté of judgment and the recital shows that other proceedings were had in said court, no further placita is necessary (Paul v. Weber, 223 Ill. App. 257; Leafgreen v. Leafgreen, 127 Ill. App. 184).

In the instant case, the placita in the record is at the very beginning of the proceedings which are to be reviewed. There is nothing in the statutes, or rules of court, applicable to appeals in this State, or in any of the precedents which we have been able to discover, which makes it either necessary or desirable that more than one placita appear in the record. The placita at the commencement of all the proceedings is certainly adequate. The motion to dismiss the appeal is, accordingly, denied.

The action of plaintiff was filed against defendant upon certain written agreements, to which reference will be made hereafter, on the theory that there was a direct and personal obligation on part of defendant to pay a minimum trackage rental to Southern Railway Company, and to repay plaintiff for the amount advanced to cover such trackage rental, in the sum of $1,392.50, but the principal basis of the action was for damages as against defendant upon what is asserted as a contract of guaranty by which defendant had guaranteed complete performance of a coal mining contract by certain individuals comprising a copartnership doing business as Kixmiller Coal Mining Company. It is the contention of plaintiff that such guaranty likewise inured to the successqr of such co-partnership, Coal Spur Mining Corporation, a corporation.

The evidence discloses that on December 15, 1934, the defendant Andrews, as first party, and Fred Kixmiller and Edward F. Kixmiller, doing business as Kixmiller Coal Mining Company, as second parties, and the plaintiff, Allied Coal & Mining Company, a corporation, as third parties, entered into a contract by which the Kixmillers, as lessees of a certain-mine from the defendant Andrews, agreed to operate such mine and produce and sell to plaintiff, as third party, the entire output thereof. Plaintiff agreed to purchase such entire production of coal from the Kixmillers at the market price, less a certain percentage. That contract was to cover a period of five years. In such contract it was provided that Andrews “hereby guarantees and agrees, as part of the consideration for this contract running to the third party, and as an inducement to the third party to enter into this contract, that the second parties (the Kixmillers) shall and will at all times during the life of this contract, abide by and faithfully perform and fulfill, according to the letter and spirit thereof, all of the terms, covenants and conditions therein provided to be performed and fulfilled by second parties.” It was likewise provided in such contract that in the event of a deficiency becoming due the Southern Railway Company, Andrews, or the second parties, agreed to promptly pay such amount, and if not paid, then the plaintiff, Allied Company (the plaintiff herein) shall have the right to pay the same and deduct the amount thereof from any amounts which at such time might be due to the defendant Andrews, or to the Kixmillers, from the plaintiff.

On September 24, 1935, a written agreement was made and executed between defendant Andrews, Coal Spur Mining Corporation, a corporation “as successor and assign” of the Kixmillers, and the plaintiff corporation. This agreement provided, among other things, “the rights, duties and obligations of the second parties, ‘the Kixmillers’ in the said agreement . were taken over and assumed by Coal Spur Mining Corporation, a corporation, with the consent of the ‘first party’ (defendant Andrews), and, ‘third party’ (plaintiff corporation) in said agreement.” Such agreement further provided that it was agreed by the parties thereto, that the amendment to the agreement ‘ ‘ should be and is as fully a part of the original agreement as though its terms had been originally incorporated in said agreement. ’ ’ At the time the amendment was made and executed, an instrument was likewise signed by all the parties, by which they mutually released each other from any and all causes of action for damages and suits arising out of any breach of the . terms of the original agreement, up to and including the date of the amendment, September 24, 1935. Approximately a month after the execution of the amendment to the agreement, Coal Spur Mining Company closed and abandoned the mine, ahd this action was begun on May 31,1938, to recover from the defendant, on the theory that he was a guarantor, the damages suffered by the plaintiff corporation by reason of the failure of Coal Spur Mining Corporation to perform its undertakings contained in the contract as amended, and, likewise, to recover $1,392.50 in damages suffered by plaintiff as the result of the failure of defendant to make payment of the deficiency arising in trackage charges herein referred to.

The evidence discloses that after the original agreement had been in force for some time there were contentions made that the plaintiff corporation had defaulted in failing to take all of the coal produced by the Kixmillers. In the spring of 1935 it became apparent that the Kixmillers would not have sufficient funds with which to operate the mine, and plaintiff was advancing funds to them from time to time. In June of that year the Kixmiller partners began to discuss with the plaintiff and defendant the question of organizing a corporation to take over the operation of the mine in substitution for the existing Kixmiller partnership. The contention is made by defendant that the organization of such corporation was in pursuance of a provision of the original contract, which gave the plaintiff corporation the privilege of taking over the operation of the mine through the organization of a corporation. The evidence is disputed on this point, but it does appear that on July 19 of 1935, a corporation was organized with the name “Coal Spur Mining Corporation” with one of the Kixmillers acting in conjunction with the vice president and secretary of plaintiff corporation in the organization of the new mining corporation. The representatives of the plaintiff corporation received .qualifying shares of stock, but additional stock was assigned by the Kixmillers and delivered to the plaintiff corporation as security. The two Kixmillers and the two representatives of the plaintiff corporation were directors of the new corporation. After the incorporation of the new mining company, when conditions at the mine did not improve, the plaintiff corporation telegraphed the defendant Andrews, requesting that he attend a meeting in Chicago to discuss the entire situation. As the result of such conferences the written amendment to the original agreement and the release herein referred to, were executed. At such time the representatives of the plaintiff corporation tendered their written resignation as directors and officers of the new mining company (this was done upon the advice of plaintiff’s attorneys, who insisted that the resignations must be accepted by the new mining company before the amendment and release were executed). After the execution of the amendment, the. Coal Spur Mining Corporation operated the mine for a period of about one month, and after it had ceased such operation the mine was never thereafter reopened.

The plaintiff corporation made good the deficiency on the minimum guaranty of trackage rental to- the Southern Eailway Company. At such time a balance of advancements was owed by the Coal Spur Company to the plaintiff of approximately $6,981.29, and plaintiff likewise claimed damages for nondelivery of coal by such corporation in the sum of $41,849.63. The plaintiff corporation seeks in this action to recover from defendant Andrews, the lessor, of the mine, the total sum of $50,223.42, occasioned by the default of the Coal Spur Mining Corporation.

The court below, in determining the issues before it, without intervention of jury, concluded that the amendment and the release should be considered together, and that the contention of plaintiff that defendant Andrews is liable, as guarantor, for the acts and doings of Coal Spur Mining Corporation, to the same extent that he would have been responsible for the acts and doings of the Kixmillers, could not be maintained. It was pointed out by the trial judge that all that was done in the executed amendment to the contract was that it was agreed that Coal Spur Mining Corporation had taken over the rights and obligations of the Kixmillers, but that there was nothing in the amendment relative to a guaranty by the defendant Andrews of the Coal Spur Mining Corporation, as such. It was concluded that a contract of guaranty must be strictly construed and that before the defendant Andrews could be held as guarantor of the Coal Spur Mining Corporation, there should have been a provision to that effect in the amendment. As stated by the. court below, in his remarks made in conjunction with the rendition of judgment in favor of defendant, “Coal Spur Mining Corporation was not only different in name, but consisted of parties other than those comprising Kixmiller Mining Company.” The court concluded that there, was nothing in the amendment by which the court could say that the defendant Andrews guaranteed fulfilment of the mining contract by Coal Spur Mining Corporation, and the issues were thereupon, found for the defendant Andrews. Nothing was stated separately with reference to the question of the guaranty of the trackage rental.

We have given careful consideration to the language contained in the amendment referred to, and to the original agreement. We have, likewise, considered the respective arguments made by the parties in this cause with reference to the issues. We have reviewed the contention of the defendant that the organization of the Coal Spur Mining Corporation was pursuant to the provisions of one of the paragraphs which gave plaintiff the right to elect one of two remedies that it would pursue in event of default by the Kixmillers, that is, hold the defendant on his guaranty, or designate some other corporation to operate the mine. The fact that the plaintiff’s officers aided in the creation of the Coal Spur Mining Corporation and in the direction of its operations, within certain limits, need not be considered by us, for the reason that we believe that the judgment of the lower court should be affirmed for reasons more fundamental, and we are, accordingly, not discussing other matters which might otherwise have had a bearing on the determination of this cause.

Under the facts, as disclosed by the record, the defendant Andrews had nothing to do with the organization of the Coal Spur Mining Corporation from its creation in July of 1935, until September 24, 1935 (other"than oral conversation with reference .thereto). It is apparent that the only thing that defendant Andrews was asked to do was to consent that the lease of the mine be assigned to Coal Spur Mining Corporation. A consent that rights, duties and obligations of the Kixmillers, under the lease, be taken over by the Coal Spur Mining Corporation, does not, in our opinion, carry with it a guaranty of the obligations of such corporation in the operation by it of the mine. The guaranty in the original contract was of performance by the Kixmillers. A contract of guaranty must be strictly construed and can never be extended by implication (Gilbert v. Estate of Yunk, 214 Ill. 237; Dupee v. Blake for use of Metropolitan Nat. Bank, 148 Ill. 453).

In the instant case the guaranty is one of performance on part of the Kixmiller brothers. The only manner in which the Coal Spur Mining Corporation could be included in that guaranty would be by implication from the general language of the amendment, which seems to relate simply to a consent that the Coal Spur Mining Corporation operate the mine. There is no justification for extending the guaranty, by implication, to the Coal Spur Mining Corporation. The conclusion of the court below that such guaranty was not operative as to the Coal Spur Mining Corporation, under the facts, was proper.

For similar reasons we believe that the plaintiff is not entitled to recover the amount claimed for deficiency in trackage rental. The original agreement between the plaintiff, the defendant, and the Kixmillers, simply provided that the Kixmillers and the defendant were to pay the amount of any such deficiency, and that the plaintiff could deduct the amount thereof from any amounts which were due to the Kixmillers or the defendant. By the execution of the release hérein referred to, on September 24, 1935, any obligation based on deficiency at that time between the various parties, was released.

In view of the fact that there is no guaranty of performance of further operations by the Coal Spur Mining Corporation by defendant, we find no basis in the record for allowing recovery of the amount of trackage rentals from defendant by plaintiff.

The judgment of the circuit court of Lawrence county was, therefore, proper, and is, accordingly, af7 firmed.

Judgment affirmed.