text:
    Jay-Bee Realty Corporation, Appellee, v. Agricultural Insurance Company et al., Appellants.
    Gen. No. 42,529.

      Opinion filed September 27, 1943.
    Rehearing denied October 11, 1943.
    Lord, Bissell & Kadyk, of Chicago, for certain appellants.

      Laurence W. Smith, of Grand Rapids, Mich., and McKinney, Folonie & Grear, of Chicago, for certain other appellants; Laurence W. Smith, of Grand Rapids, and Hendrik Folonie, of Chicago, of counsel.
    John L. McInerney and William Jaeee, both of Chicago, for appellee; William Jaeee and Irving Eisenstein, both of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendants, 22 insurance companies, and Underwriters at Lloyd’s, England, hereinafter called Lloyd’s, appeal from a decree fixing and directing payment of their several liabilities totaling, with interest, $226,254.32, under 45 Michigan standard fire insurance policies covering a frame hotel building known as Golfmore Hotel, and the personal property therein; canceling a first mortgage on the hotel premises and contents and the note for $100,000 secured thereby, acquired by defendants after liability under the policies had accrued because of a fire in the hotel on November 20, 1939‘, and enjoining the sale, transfer or assignment of the mortgage and note or institution of any action at law or suit in chancery upon them.

The Golfmore Hotel property comprised a tract of approximately 137 acres, with a lake frontage of about 1,000 feet adjacent to the village of Grand Beach, Michigan. The building proper was of a frame construction with stucco walls, three stories with a high attic and a basement and contained approximately 150 guest rooms, with dining room, dancing facilities, bar, and other accommodations of a modern summer resort hotel. There was an auxiliary building known as the Pinewood Inn, which is not involved in this litigation. The hotel was open from Declaration Day until after Labor Day. It was built in 1923, was operated by the owners for several years, became involved in litigation and was in tbe hands of a receiver, Grand Eapids Trust Co., of Grand Eapids, Michigan, appointed by the Federal Court. In 1935 the property was sold to the receiver as the only bidder for approximately $145,000, being the amount of receiver’s expenses, etc. It was then closed. In February 1937 the Trust company contracted to sell it to Solomon E. Harrison for $175,000 and accrued taxes approximating $30,000. The purchase price was to be paid $50,000 in cash by September 1, 1937, and the balance to be secured by a first mortgage of $100,000 and a second mortgage of $25,000. The latter mortgage represented undisclosed commissions to be paid to Albert Mehlman, a partner of Harrison and owner of 50 per cent of the stock of Golfmore Properties, Inc., to which the contract of purchase was assigned. Mehlman’s interest having been disclosed, the second mortgage was surrendered and discharged in 1938 upon payment to the Trust company and others of various sums aggregating $18,900 in adjustment of the controversy and the elimination of Mehlman from the enterprise. In 1937 the hotel was furnished and certain improvements, including the building and equipping of the Casino and a dining room, and restuccoing of the exterior of the building were made at a cost of more than $50,000. .Harrison and Mehlman were unable or unwilling to meet their September 1937 obligations and open the hotel the following year. Albert E. Berger then be.came the financial backer. The Golfmore Properties, Inc., assigned the contract of purchase to him and he organized plaintiff and assigned the contract to it; payments were made and warranty deed to the property was delivered to plaintiff in the Fall of 1937 and the first and second mortgages executed and delivered. At the time of the fire Berger was secretary, treasurer, director, principal stockholder, principal creditor to the extent of $110,000 and managing head of plaintiff and all its affairs. In 1939 the hotel was a fully-equipped, modern summer resort hotel.

The fire practically destroyed the building. Only a few chimneys, the brick work inclosing the elevator, and a small portion of one of the walls remained standing; All the contents were destroyed. Immediate notice of the fire was given and proof of loss was filed within the 60 days specified in the policies. Although the question of incendiarism in the origin of the fire was raised in the pleadings, no evidence to support the charge was introduced on the trial.

Defendants interpose three defenses in bar of the action. (1) That the action is not cognizable in equity. Defendants contend that since our Civil Practice Act now permits a single action at law against all the defendants to recover the amount due from each, equity should not assume jurisdiction to avoid multiplicity of suits, and that our Supreme Court in Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, erred in assuming that the computations" required in prorating the liability of the respective defendants is an accounting which .gives courts of equity jurisdiction. The Weininger case was instituted under the old Practice Act against sixteen defendants to recover upon nineteen fire insurance policies aggregating $25,000. As in the case at bar the policies there contained a provision for prorating the aggregate loss on the property in the proportion that the insurance written under each policy bore to the total insurance carried. The amount of the loss was contested in each case. In sustaining the equitable jurisdiction the Supreme Court (pp. 589, 590) said: “The liabilities of the defendants here by reason of the controverted issues as to the amount of loss and the pro raía features of the policies are interrelated and interdependent. There is involved herein, therefore, not only the question of multiplicity of suits, but, if there is a recovery by the complainants, the further fact that when the loss is determined some sort of accounting is necessarily required to fix and prorate the amounts for which the defendants are severally liable. We conclude that the case here presented is a proper one for the assumption of jurisdiction by a court of equity, not only upon the ground of avoiding a multiplicity of suits but also because an accounting is likewise involved. Milwaukee Mechanics’ Ins. Co. v. Ciaccio, 38 Fed. (2d) 153; American Central Ins. Co. v. Harmon Knitting Mills, 39 id. 21.” Jurisdiction to avoid multiplicity of suits has. long been exercised by courts of equity. This jurisdiction is not taken from equity by statutes permitting the joinder of many causes of action that formerly were not permitted to be joined in one action at law. 1 Story’s Eq. Jur. (14th Ed.), see. 104, citing Labadie v. Hewitt, 85 Ill. 341. In that case the court after the Legislature had provided for partition by petition, said: “It has been repeatedly held, that when the General Assembly gives a new remedy, by petition, under the statute, it in nowise affects the jurisdiction of the court of chancery; that the new remedy is cumulative; that the court of chancery may proceed under its original jurisdiction as though the cumulative remedy had not been given, unless limited or restricted by statute. The court of chancery has entertained and exercised jurisdiction in cases of partition from quite an ancient period. Courts of law were also invested with jurisdiction to adjudge and make partition, even before it became a source of equitable relief. After chancery assumed jurisdiction, the courts of law continued to make partition, without any change in their mode of procedure. But the practice in the British courts of law was inconvenient and cumbersome, and our General Assembly, to remedy the evil, gave a petition in lieu of the old writ of partition, and prescribed the practice thereunder. But it has never been supposed that, in doing so, they designed to take away the jurisdiction from the courts of chancery, or intended thereby, in any degree, to alter or amend the practice in that court.” In the later case of Chapman v. American Surety Co., 261 Ill. 594, where it was contended that the settlement of guardianship accounts having been placed by statute in the probate court, it was intended to take jurisdiction from a court of chancery, the court (p. 604) said: “Wherever that court (Equity) has, as a part of its inherent powers, jurisdiction in certain matters, such jurisdiction is not, in general lost or abridged where other courts have acquired jurisdiction to grant the same or different relief. (1 Pomeroy’s Eq. Jur. — 3d ed. — sec. 276.) The same author says in section 279: ‘Where the hew power is conferred upon the law courts by statutory legislation, the rule is well settled that unless the statute contains negative words or other language taking away the preexisting equitable jurisdiction, or unless the whole scope of the statute, by its reasonable construction and its operation, shows a clear legislative intent to abolish that jurisdiction, the former jurisdiction of equity to grant its relief under the circumstances continues unabridged.’ Statutes that' abrogate or abridge that jurisdiction are to be strictly construed.” The civil practice act makes available to courts of law certain practices theretofore limited to courts of chancery. It does not and was not intended to narrow or reduce the jurisdiction of equity. Rule 10 of the Supreme Court (Ill. Rev. Stat. 1941, ch. 110, par. 259.10 [Jones Ill. Stats. Ann. 105.10]), provides: “All matters which, prior to January 1, 1934 were within the jurisdiction of a court of equity . . . shall be heard and decided in the manner heretofore practiced in courts of equity.”

Jurisdiction of equity in cases of this nature is based upon more than the avoidance of a multiplicity of suits. In American Cent. Ins. Co. v. Harmon Knitting Mills, 39 P. (2d) 21, the court said: “If equity has jurisdiction of this cause, it is because it will avoid numerous actions at law. Bnt something more is required than the avoidance of a multiplicity of suits. There must be a common interest existing among the individual defendants and between them and the plaintiff in order that a court of equity may interfere. Section 267, Pomeroy, Equity Jurisprudence (4th Ed.). This common interest exists in the present suit, if at all, because of the similar provisions in all of the insurance policies and particularly because of that provision heretofore quoted which makes each appellant liable for only its proportion of the total loss. Is this common interest of such a nature, extent, and object, as to justify the assumption of jurisdiction by a court of equity? We think it is.” This case was cited in Weininger v. Metropolitan Fire Ins. Co., supra, where, as quoted above, the court held that by reason of the controverted issues as to the amount of loss and the pro rata features of the policies, the liabilities of the defendants were interrelated and Interdependent and that not only the question of multiplicity of suits was involved, but also the necessity of some sort of an accounting when the loss is determined to fix the pro rata amounts for which the defendants are severally liable. Necessity for an accounting in the present case is greater than in either of the cases cited. The number of defendants and policies involved, as well as the number and variety of items of personal property destroyed, is greater; the testimony is reported in more than 6,000 pages, and the numerous exhibits' cover about 1,000 additional pages. Fixing the total loss within any reasonable degree of accuracy, or correctly apportioning the loss among the various defendants would be beyond the average jury. “The jurisdiction in equity attaches, unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstances.” 1 Story’s Eq. Jur. (14th Ed.) note on page 38.

(2) That the original complaint failed to state a cause of action, and the necessary amendment having been made after the 12 months limitation period of the policies had expired, the action was barred. To support this contention defendants cite cases decided before the Civil Practice Act in force when this action was brought. These cases need not be considered. In construing the Practice Act governing this action the Supreme Court in Graves v. Needham, 379 Ill. 25, 27, said: “Where a pleading is filed in apt time, section 46 (Ill. Rev. Stat. 1941, chap. 110, par. 170, p. 2423) permits any amendment, after the time for commencing suit, to set up a cause of action on any claim which was intended to be brought by the original pleading, provided only, that it grew out of the ‘same transaction or occurrence, ’ namely, the same action. It is not necessary that the original pleading technically state a cause of action, or that a cause of action set out in the amendment be substantially the same as any cause of action stated in the original pleading. In Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, we said: ‘These changes, together with the judicial construction of the prior statutes, evince the legislative intent to remedy the evils incident to the former legislation and to preserve causes of action against loss by reason of technical rules of pleading.’ ” The original complaint was filed in apt time. It set forth the numbers of the policies sued upon, the defendants issuing the respective policies, the property covered, the date of the fire, etc., and charged “that by the terms of all of said policies of insurance . . . the defendants and each of them promised and agreed to insure the plaintiff.” The change which defendants insist was necessary in order that the complaint state a cause of action, and which plaintiff made by amendment-, was the insertion of the phrase, “the said plaintiff being named as the insured in each of the various policies of fire insurance.” If we concede that this amendment was necessary to the statement of a canse of action, the amendment related back to the filing of the original complaint, and the position of the defendants cannot be sustained.

(3) That false swearing, concealment and misrepresentation by Berger rendered the policies void and bar the action. Each policy contained the following provision. ‘ ‘ This entire policy shall be void if the insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or, in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss.” This provision, common to insurance policies, has been uniformly upheld by the courts and the general rules relating to fraud applied to it. To avoid a policy the fraud must be as to a material matter and must be wilful and with intent to deceive and defraud the insurer. It must be proved by clear and convincing testimony. Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 598. Whether there is fraud is a question of fact to be determined by the jury or the master. Commercial Ins. Co. v. Friedlander, 156 Ill. 595. Where the master’s finding of facts has been approved by the chancellor the reviewing courts are not justified in disturbing the findings unless they are manifestly against the weight of the evidence. Mruk v. Mruk, 379 Ill. 394, 401; Litwin v. Littvin, 375 Ill. 90, 96; A. J. Canfield Co. v. McGee, 306 Ill. App. 226, 230; Zamis v. Hanson, 302 Ill. App. 404, 408. No claim was made for property not destroyed. One item of personal property, relatively unimportant in comparison with the total loss, was duplicated in the proof of claim and eliminated when the duplication was discovered. Berger was twice examined under oath and at all times evinced a willingness to cooperate with defendants in their search for information — books, records, invoices, files, etc., were produced on request.

Defendants charge fraud as to four separate matters. (a) As to the cost of the property purchased from the Trust company and as to the second mortgage thereon. There is no question that Harrison in good faith entered into an agreement to give the Trust company $50,000 in cash, a $100,000 first mortgage and a $25,000 second mortgage for the property. The cash was paid and the 'mortgages given. .After Harrison had discovered that the Trust company and Mehlman had secretly entered into a contract whereby Mehlman, a partner of Harrison’s, was to receive the proceeds of the second mortgage for his services in inducing Harrison to buy the property, efforts were made to procure a surrender and cancellation of the mortgage. Apparently the bank felt that it could not surrender the mortgage without the consent of all claiming an interest in its proceeds. In settling the controversy various sums, aggregating $18,900, were paid to the Trust company and others, including an informer. This amount covered payments for alleged interests in the second mortgage. Defendants insist that the proof in respect to the transaction is not satisfactory, but it is not contradicted and it is not inherently unreasonable. In an examination before the trial Berger testified that Mehlman had no interest in the company or part or share in its profits. On the trial Berger repeated this statement, and on further questioning said that he, Berger, had promised to pay Mehlman $4,200 out of any dividends which might be received on Berger’s stock, at the rate of 25 per cent of such dividends when, as and if paid, and produced a copy of his letter to that effect. Upon these facts, Mehlman did not have' any interest in the plaintiff company or in its profits, as such, which he could assert against plaintiff. His claim against Berger, personally, for a part of what Berger might receive by way of dividends, is not material in determining the amount of loss and damage in this case and defendants’ liability therefor.

(b) That Berger testified falsely in respect to exhibit “AA”. In its proof of loss plaintiff claimed $345,280.81 as the sound value of and loss and damage for the building. This amount, as shown by the evidence, was made up by averaging three general construction bids made by reputable and responsible contractors, in competition with each other and in expectation of getting the job of rebuilding the hotel, and adding thereto the cost of certain equipment and building expense such as surety bond, insurance during construction and architect’s fees at figures given by plaintiff’s architect, making a total cost to rebuild of $383,645.34, and deducting therefrom 10 per cent for depreciation. At the close of one of his examinations before the trial Berger produced the paper in evidence as exhibit “AA” as one of the methods that he used to check back as to whether or not his opinion was correct as to the sound value of the building stated in the proof of loss. The exhibit is confusing, and Berger’s explanation of it was involved and required the introduction of two other exhibits which included estimated figures not shown on the books. It took from, rather than added to, the proof of loss. It was an unsound argument in support of what was a reasonable opinion of replacement cost stated in the proof of loss and based upon competitive bids made in the regular course of business. The sound value of the building on the date of the fire sh'own in the exhibit was several thousand dollars higher than the amount claimed in the proof of loss, but no claim based on the higher figure was ever made.

(c) That Berger fraudulently concealed a chattel mortgage to himself covering all the personal property. This claim is based upon a resolution of a joint meeting of the stockholders and directors of plaintiff on December 28, 1937. At that time Berger had advanced approximately $45,000, and additional working capital was needed to open the hotel the following summer. A resolution was passed authorizing but not directing the president, and secretary (Berger’s employee and Berger) to execute a mortgage or trust deed upon all the property, real and personal, of plaintiff, to secure Berger’s advances and future advances of any stockholder up to $75,000. In subsequent corporation reports signed by Berger and filed with the Secretary of State of Michigan, the indebtedness to Berger is shown as secured by an unrecorded chattel mortgage. No witness testifies that the mortgage was ever executed and delivered. The officers of the corporation testify that none was executed. The auditors who prepared the corporation reports say they never saw a chattel mortgage but relied first upon the resolution and then on the former report. The master was justified in finding that no chattel mortgage was ever executed. Without doubt Berger, with his dominant position in the corporation, could have had the mortgage by asking for it. The resolution left its execution to the discretion of the officers. Defendants claim that the resolution created an equitable mortgage to Berger, and although Berger is not shown to have asserted any right under the resolution, the defendants insist that without Berger’s consent, or even against his will, the defendants can assert his alleged equitable rights against plaintiff in order to escape their legal obligations to pay for the loss and damage caused by the fire. Neither reason nor authority support this contention.

(d) Fraud as to the personal property- — its value, its actual cost, and the fact that some of it had been bought second hand. After the closing of the hotel in September 1939, an inventory was taken of the personal property in the building. After the fire, Albert Bothschild,' a man with wide experience in the furnishing and equipment of hotels, as an employee of Albert Pick & Co., and in the contract department of Mandel Bros., where he handled the equipment of hotels and clubs and made appraisals, fixed the replacement cost of approximately 80 per cent of the items in the inventory. In his business he had visited the hotel from the time Harrison took it over in 1937, selling equipment and going through it with employees before each yearly opening to ascertain if any new equipment or furnishings were needed. Berger supplied the replacement cost of the remainder of the personal property. This inventory, consisting of 48 pages, with the cost plainly indicated as the replacement cost, was submitted to defendants. Thereafter a summary of the inventory and the replacement costs shown thereon was included as part of the proof of loss. Property on which Albert Pick & Co. held a mortgage was deducted, a sales and use tax and drayage and installation costs were added, making a total of $131,777.09, from which was deducted an over-all depreciation of 10 per cent, making a claim for the sound value and loss and damage of the personal property, $118,559.39. At the request of defendants, Berger marked upon the inventory the actual cost price of the property to plaintiff or its predecessors, G-olfmore Properties, Inc., or the Trust company, the year purchased and from whom bought. He also gave information as to the property bought second hand and at auction sales.

Defendants complain of the concealment of a discount on a bill from Samuel Winternitz & Co., auctioneers. The Winternitz purchase was made in 1937 when Harrison was in control and before Berger became the managing director. The purchase consisted of bedroom furniture from the Robb Furniture Company, then out of business, and was billed to Harrison. Berger testified that he got the bills and all information from Mrs. Harrison and did not know about the commission before July 1941. Plaintiff was under no obligation to distinguish between new and used furniture and equipment in the inventory or .proof of loss. Neither was it obliged to give the actual cost of the personal property in these papers. When the information was asked for it was freely given and it was substantially accurate and complete. Questions of value are largely a matter of opinion. Opinions diverge as interests- conflict. . The values presented by plaintiff are high and those presented by defendants are low. In the proof of loss the claim of sound value and loss and damage of personal property is $118,559.39. This is substantially the replacement costs shown on the inventory after allowing for additions of taxes, drayage and installation costs, and deductions of 10 per cent. Rothschild testified that the actual value of the personal property on which he fixed replacement costs in the inventory was $88,000, after allowing depreciation of 20 per cent. Berger fixed the actual value of the remaining personal property at $20,000. This makes a total of $108,000. The difference between the value fixed'by the testimony and in the proof of loss is practically the difference between Berger’s depreciation over-all of 10 per cent and Rothschild’s depreciation of 20 per cent. The master found the value to be $97,000, which is about 20 per cent less than the proof of loss and about 10 per cent less than the value fixed by plaintiff’s witnesses on the trial.

Defendants’ witnesses .placed the values much lower. As to most of the personal property, except bedroom furniture, defendants relied upon the testimony of Fanselow, a store equipment designer and builder of restaurant, hotel and food serving equipment. He based all his replacement values upon second hand or used material. There is a direct conflict in the testimony as to whether or not a second hand market for this material existed in Chicago and whether the great bulb of it could be purchased second hand. Pláintiff based its replacement values on reproduction new, and deducted depreciation. The 30 foot soda fountain and back bar will illustrate the different methods. Plaintiff’s witness testified that this fountain was hand carved. Defendants’ witness said that it was not. Plaintiff bought the fountain at an auction sale for $170.50 and claimed a reproduction value when installed of approximately $3,600. Fanselow placed the replacement value at $900 to $1000, but testified on cross-examination that in 1939 a new outfit could be gotten for about $3,000. The master’s finding as to value of the personal property is well within the range of the testimony. The values claimed by plaintiff are not so grossly exaggerated as to constitute fraud. Commercial Ins. Co v. Friedlander, 156 Ill. 595; Commercial Cabinet Co. v. North British & Mercantile Ins. Co., 220 Ill. App. 453; Campbell v. Great Lakes Ins. Co. of Chicago, 228 Mich. 636. Further detailing of the evidence on this point is unnecessary. A careful examination of the record and a close analysis of Berger’s testimony, in the light of defendants’ charges against him, fails to show that the finding of the master on the question of the alleged fraud of plaintiff is manifestly against the weight of the evidence.

Defendants urge in bar of any action on the insurance covering the personal property, that this property was covered by chattel mortgage to the Grand Rapids Trust Company, and one to Berger, without permission of defendants, and thereby the insurance on the personal property was suspended. The alleged Berger chattel mortgage has been considered and conclusions reached adverse to defendants. The chattel mortgage held by the Trust company is the $100,000 first mortgage heretofore mentioned, which covered both real and personal property. The policies contain the following provision. “Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage to any property insured hereunder while encumbered by chattel mortgage.” As a part of each policy there is a Loss Payable Clause providing that the loss, if any, on personal property is “to be adjusted only with the insured (plaintiff) and payable to the insured and Grand Rapids Trust Company as their respective interests may appear. ’ ’ Attached to and made a part of each policy is a rider which defendants designate as “Mortgage Clause to Grand Rapids Trust Company.” This rider is further entitled, “Standard Mortgage Clause,” and is in part as follows: “Loss or damage, if any, under this policy shall be payable to Grand Rapids Trust Company, mortgagee, (or trustee) as interest may appear.” These provisions bring the case within the decision in Ohio Hardware Mut. Ins. Co. v. Northeast Georgia Land Co., Inc., 79 F. (2d) 753, and must be construed as consent by defendants to the mortgage.

Defendants complain that the master and the chancellor adopted a wrong rule as to actual cash value. Each policy insured plaintiff “to the extent of the actual cash value (ascertained with'proper deductions for depreciation) of the property at the time of lo,ss or damage, but not exceeding the amount which it would cost to repair or replace the same with material of like kind and quality within a reasonable time after such loss or damage.” The meaning of actual cash value, with proper deductions for depreciation, is to be determined by the law of Michigan. An experienced lawyer and an experienced appraiser from that State, called by defendants, testified in substance that the Michigan courts have, not fixed a fast and hard rule as to what is actual cash value; that a plaintiff is entitled to recover such an amount as would restore him to the. same property status he occupied before the property was burned — no more and no less, and that the actual cash value is the sound value of the property, determined by considering market value, economic value, reproduction cost, condition of the 'building, depreciation, including obsolescence, and any other features which might affect the value. Plaintiff produced several witnesses who testified to the reproduction value of the building, less depreciation, and one witness who fixed the actual cash value based upon the reproduction cost, economic and market values, v,ost to plaintiff, etc. His value, less depreciation, was $295,000. Defendants produced three expert witnesses who testified to the actual cash value, less depreciation. Their figures were comparatively close. Each professed to consider all the elements of value mentioned. Palmer, the Michigan expert, testified that his final cash valuation of $210,000 can also be expressed in the terms of the original reproduction cost, minus depreciation, but he “would not want the impression to be conveyed that we say that is how we did it.” Perce, a Chicago appraiser, fixed an actual cash value less depreciation of $218,170.29, which he stated was exactly the same as its reproduction value depreciated under his method. Gueroult, also a Chicago appraiser, fixed a reproduction value less depreciation of $218,315.89, and an actual cash value, with proper allowance for depreciation, of about $210,000, after taking into consideration the reproduction value less depreciation, the purchase price and the economic value of the property as a going hotel, or the earning power value. He then testified that reproduction value less depreciation is an important factor in determining value and that any other value ceases to be a reasonable measure when it is too far removed from reproduction less depreciation; that if he were asked to make a computation or appraisal for the purpose of indemnifying a person for a fire loss and put him back in the same property status, he would use the reconstruction less depreciation method, and the answer would be sound value.

Thus it will be seen that each of the witnesses for defendants had in mind the reproduction cost less depreciation as the prime and controlling factor in determining actual cash value. Plaintiff’s replacement cost, as stated in the proof of loss and testified to by the witnesses, is based upon contractors’ bids in the regular course of business and in competition with each other, when it was expected that the hotel would be rebuilt, plus certain permanent fittings and appliances and construction expense, such as architect’s fees, insurance and bond. According to defendants’ witness who had spent four or five days in examination of the building in October 1937 in making an appraisal for the Grand Rapids Trust Company, the plans from which the contractors’ bids were made were in a general way an honest reproduction of the building in accordance with the notes he had taken. The reconstruction cost used by defendants’ witnesses was based upon conclusions of expert witnesses, arrived at for the purpose of testifying, and were considerably lower than plaintiff’s cost. As is usually the case where opinions become evidence and experts are called, each expert testifies in support of the theory of the party calling him, and there is a wide divergence in the testimony. Generally, somewhere in between is the truth. In this case the testimony as to a proper architect’s fee ranged from 2% to 5 per cent; the depreciation to be deducted, from 16 to 41% per cent; the replacement value before depreciation, from $383,645.24 to $249,270; and replacement cost after depreciation, from $345,280.81 to $210,000. There is nothing in the record to show what particular rule or method the master employed in arriving at his figures, $290,000 for the building and $97,000 for the personal property. Each finding is within the range of the testimony and as it is not manifestly against the weight of the evidence it should not be disturbed by a reviewing court.

The master received in evidence the inventory and proof of loss for the limited purpose of proving that same had been filed with defendants as required by the policies. After Rothschild had testified to the replacement costs fixed by him, and Berger had testified to the cost price of certain articles placed on the inventory at the request of defendants and had testified to the value of the items listed on exhibit 49A, being the items for which Rothschild had not furnished replacement costs, these exhibits were received in evidence without limitation of purpose or effect. These papers were certainly available to the witnesses, to refresh their recollections, and each witness might have been examined separately as to each item appearing on the exhibits and thereby several hundreds of pages of testimony added to the record. In the final result the master in preparing his report would have labored through this additional testimony to get the information concisely stated in the exhibits. If the exhibits were not properly received in evidence for all purposes, no harm has resulted to defendants.

Defendants complain that the court erred in construing the policies against the defendants, but do not point out in what particulars the court erred in so doing or the harm, if any, to the defendants.

By the decree interest is allowed plaintiff from February 12, 1940. Proof of loss was sent to defendants January 10, 1940. By the terms of the policies the loss or damage for which the company may be liable is payable 30 days after proof of loss. The Interest Act (Ill. Rev. Stat. 1941, ch. 74, par. 2 [Jones Ill. Stats. Ann. 67.02]) provides: ‘ ‘ Creditors shall be allowed to receive (interest) at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing . . . .” This part of the statute, except for change in the rate of interest, has been in force since 1845. As early as 1857 our Supreme Court held that interest is recoverable on fire insurance policies. In the case of Peoria Marine & Fire Ins. Co. v. Lewis, 18 Ill. 553, in an action on a policy under which the insurer was obligated to pay the actual cash value of the property, the court said (562, 563): “By the very terms of the policy the insured is required to furnish proofs of the amount of the loss. The assured must liquidate the amount of the loss by his evidence sixty .days before it becomes due by the policy. But by the contract it does become due within sixty days after this proof is made. It is true the amount may be controverted by proof, yet that will not change the principle, because the true amount may be variable. Whatever is due becomes due and payable within the time fixed, after the tender of proofs and will bear interest from that date.” To the same effect are Knickerbocker Ins. Co. v. Gould, 80 Ill. 388, 395; Home Insurance & Banking Co. v. Myer, 93 Ill. 271, 277; Firemen’s Fund Ins. Co. v. Western Refrig. Co., 162 Ill. 322, 323. The decree finds the defendant Lloyd’s liable under the Threefourths Yalue Clause of the policies for $105.75, and for $2,633.25 under the Unearned Premium Clause of the policies. No finding is made as to the amounts due from the other defendants. No objection is made to the finding of Lloyd’s liability or to the amounts found to be due. Defendants’ objection is based upon the claim that the Detroit Insurance Agency, agent for all the defendants other than Lloyd’s, paid plaintiff a sum in excess of the unearned premiums due from its principals and reimbursed' itself by deducting the amount paid from sums owing to it by the defendants other than Lloyd’s, and that if Lloyd’s were now directed to- pay plaintiff the amounts due from it, plaintiff would be obliged to pay out a portion of the money to reimburse Lloyd’s codefendants for overpayments of unearned prefniums, and that the decree is erroneous in failing to provide for this adjustment. The liabilities of the defendants under the clauses now being considered are several, not joint. If plaintiff is indebted to the remaihing defendants because;- of overpayment under these clauses, the indebtedness is a direct and unconditional liability, independent of the amounts, if any, recovered from Lloyd’s. The Detroit agency is not a party to the suit, and the defendants other than Lloyd’s have not by any pleadings claimed this amount.

Furthermore, it does not appear from the record that the defendants other than Lloyd’s have overpaid the plaintiff, if the two clauses are considered. Plaintiff introduced a computation 'showing the liability for unearned premiums of all defendants excepting Lloyd’s to be $4,035.99. The amount due from all defendants under the Threefourths Value Clause is $1,311, according to the figures stated by plaintiff in its brief, and not challenged by defendants. Of this amount the decree charges $405.75 to Lloyd’s, leaving a balance of $905.23. due from the remaining defendants. Thus the amounts due the defendants other than Lloyd’s under the two clauses is $4,941.22, an amount in excess of the $4,916.96 paid by the Detroit agency to plaintiff. The claim is therefore without basis in fact.

On the hearing on exceptions to the master’s report the defendants objected to the master’s fees and asked that the master appear for examination as to his services and fees. The court denied the request and fixed the master’s fees at the amount claimed by him. Defendants objected that there appeared to be an overcharge of 2,000 folios, or $300, in taking evidence. Objection was also made to the charge for 320 hours in actual hearing of the case, and in addition thereto 680 hours in reading and analyzing the pleadings', reading the transcript of testimony and exhibits, preparing the report and examining authorities cited by the parties. If the 320 hours claimed for actual hearing of the case includes time spent in taking testimony, it is an overcharge to that extent. The charge for services should be itemized and the master should have been required to appear for examination as to his fees. Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, 152-157; Litwin v. Litwin, 375 Ill. 90, 97; Gottschalk v. Noyes, 225 Ill. 94, 100-102.

The decree of the superior court is affirmed in all respects except as to the master’s fees. The cause is remanded with directions to hear evidence and determine the services rendered by the master and fix the fees therefor. The costs in this court will be taxed one-fourth against the plaintiff and three-fourths against the defendants, each defendant being taxed with the same proportion of the costs taxed against the defendants that the insurance carried by each defendant bears to the insurance carried by all.

Affirmed except as to master’s fees and remanded with directions, to retax these fees.

O’Connor, P. J., and Matchett, J., concur.


source: Caselaw Access Project

author: Mr. Justice Niemeyer

license: Public Domain

text:
    International Milling Company, Appellee, v. Illinois Doughnut and Cake Company, Appellant.
    Gen. No. 42,570.
    Opinion filed September 27, 1943.

      Henry E. Ayers and Weightstill Woods, both of Chicago, for appellant.
    Allen & Darlington, of Chicago, for appellee; Glynn J. Elliott, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

In an action for the price of flour, defendant admitted liability of $1,000 for flour received in the latter part of 1936, and filed a counterclaim for $2,735.16, representing the processing tax under the Agricultural Adjustment Act of 1933 on flour received and paid for .by defendant before the act was declared unconstitutional on January 6, 1936. The trial court found against the defendant on the counterclaim and entered judgment against it for $1,000. Defendant appeals.

The flour on which the processing tax is sought to be recovered was sold under contracts having identical provisions relating to federal taxes. The parts material in this case are: . . the purchase price named herein includes the present Federal tax (if any) on the processing of the commodities used in manufacturing the product (or products) covered by this contract . . . any decrease (during the life of this contract) in the said present Federal processing tax shall be credited by Seller to Buyer herein, when, as and if Buyer makes payment to Seller of the purchase price named herein but only to the extent that the grain used in manufacturing the product (or products) embraced herein is milled after the decrease in said present processing tax becomes effective and that Seller herein is thereby relieved in whole or part from payment of such processing tax.”

The contracts contain provisions for an increase in the selling price to cover any increases in the federal tax or the imposition of new taxes, the details of which are immaterial in this case. The sales prices ranged from $5.90 to $7.25 per barrel, without designating any part of the price as or for a tax and without any additions to that price for a tax. Defendant'alleged and the testimony tended to prove that defendant did not pass the tax on to its customers but absorbed and paid it, neither increasing its prices nor lessening its product in quantity or quality. There is no charge of fraud or mutual mistake.

The questions involved have been decided in Noll Baking & Ice Cream Co. v. Sparks Milling Co., 304 Ill. App. 624, an action at law to recover processing taxes on flour sold under contracts containing substantially similar provisions as to federal taxes as in the instant case. The complaint was dismissed and recovery denied in the trial court. .That judgment was affirmed. The only difference in the two cases is that in the Noll case the complaint contained no allegation that the tax was not passed on and borne by plaintiff’s customers. In speaking of the right to recover, the court said (629, 630): “While the question of the recovery back of processing taxes has apparently never been passed upon by a court of last resort in Illinois, in the final analysis, this is but an old principle dressed in a new garb, the fundamentals are the same. In a well-considered case in this State, it has been held that where the parties to a contract have completely performed, even though the price paid was greater because of a mistake of law, there can be no recovery. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535. More specifically, where taxes áre voluntarily paid, the courts will not permit a recovery thereof if it appears that the burden was shifted by the taxpayer to others. Richardson Lubricating Co. v. Kinney, 337 Ill. 122. There is no allegation in plaintiffs ’ complaint that the tax was not passed on and borne by their customers.” The failure to allege that the tax was not passed on to the customers could have no material bearing on the decision reached. Examination of the Richardson Lubricating case, cited in the opinion, shows that the passing of the motor fuel tax there involved onto the customers was merely an additional ground for denying relief. Before considering that question the court said (129): “The only fair conclusion that can be reached from the allegations of the bill and answer and the legitimate inferences to be drawn therefrom is that the payment was made voluntarily and not under duress. It is well settled that in the absence of fraud taxes so paid cannot be recovered, even though they are illegal because laid under an unconstitutional law, where there is no statute authorizing such recovery. (Elston v. City of Chicago, 40 Ill. 514; Yates v. Royal Ins. Co. supra; Board of Educacation v. Toennigs, 297 Ill. 469.) No fraud is charged in the bill, and the answer avers that the defendants were advised and believed that the act was valid. It is not claimed that a recovery is authorized by statute.” The court then added that, it appearing plaintiff had collected the tax from its customers but had not returned or offered to return the amount collected, plaintiff did not come into court with clean hands and was not entitled to the equitable relief of an injunction restraining the Director of Finance from paying to the State Treasurer and the Treasurer from receiving the taxes collected from plaintiff. The principle stated above is the general rule governing voluntary payment of taxes assessed under unconstitutional laws.

In the Noll case the court discussed a number of decisions in other States and in the federal courts. It held that the rights of plaintiff were based upon the contracts, and said (632): “In the instant case there is no claim of fraud, or mutual mistake, the parties were dealing at arms’ length, and expressly provided for any increase or decrease, or abatement of this tax, but made no provision whatsoever, for th¿ law under which the tax was levied being nullified by the pronouncement of the courts. It is not the province of the courts to add to contracts of parties, elements which they did not themselves provide, nor to protect one of the contracting parties against a subsequent contingency, which would have been advantageous to him, had he but foreseen it.” The contracts in the case at-bar do not provide for the contingency of the Agricultural Adjustment Act being declared unconstitutional. Furthermore, the provision for the decrease in federal taxes does not cover the refund of taxes paid prior to the decrease, but is applicable only to deliveries and payments after the decrease becomes effective, and then only as a credit on the' contract price. Repayment of taxes already paid is precluded.

Recovery of processing taxes in legal and equitable actions upon contracts essentially similar to those in the present case has been denied in the following cases. Johnson v. Igleheart Bros., Inc., 95 F. (2d) 4; Consolidated Flour Mills v. Ph. Orth Co., 114 F. (2d) 898; Moundridge Milling Co. v. Cream of Wheat Corp., 105 F. (2d) 366; Continental Baking Co. v. Suckow Milling Co., 101 F. (2d) 337; Golding Bros. Co., Inc. v. Dumaine, 93 F. (2d) 162; G. S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861; Mattingly v. G. B. R. Smith Milling Co., 183 Miss. 505; O’Connor-Bills, Inc. v. Washburn Crosby Co., 20 F. Supp. 460; Johnson v. Scott County Milling Co., Inc., 21 F. Supp. 847; City Baking Co. v. Cascade Milling & Elevator Co., 24 F. Supp. 950. These decisions represent the prevailing view. Our attention has been called to but two cases which we consider analogous to the present case, holding a contrary view. Smith v. Sparks Milling Co., 219 Ind. 576, and United States v. American Packing & Provision Co. (10 Cir.), 122 F. (2d) 445. We believe the majority rule is supported by the better reasoning, and we follow it.

Plaintiff suggests that the court erred in denying its claim for $200 for flour sold Nick Thomas, doing business as the Eainbow Doughnut Shop in 1933, payment for which plaintiff claims defendant assumed, and also in not allowing interest on the judgment. The evidence does not support the plaintiff’s contention as to the Thomas account, and, as the counterclaim seems to have been urged in good faith, there is no vexatious delay in the payment of plaintiff’s claim, and the judgment of the municipal court is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.


author: Justice Dove.

text:
    In re Estate of Merton J. Emerson, Deceased, Appellant, v. Elvina Cook, Appellee.
    Gen. No. 9,861.
    opinion filed April 28, 1943;
    rehearing denied October 5, 1943.
    Frank C. Levitón and James J. McCauley, for appellant;
    Charles P. Barnes, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Justice Wolfe.

text:
    Victor Mortvedt, Appellee, v. Western Austin Company, Appellant.
    Gen. No. 9,875.

      opinion filed August 19, 1943;
    rehearing denied October 5, 1943.
    Cassels, Potter & Bentley and Prank J. Jones, for appellant;
    L. H. Vogel, of counsel;
    Donovan, Bray & Gray, for appellee.
   Opinion by

Justice Wolfe.

Not to be published in full.


text:
    Evelyn Howard, Administrator of Estate of Earl Robert Howard, Deceased, Appellee, v. Charles Ind and Raymond Hart, Appellants.
    Gen. No. 9,881.
    opinion filed August 19, 1943;
    rehearing denied October 5, 1943.
    Welsh & Welsh, for appellants;
    C. K. Welsh, of counsel;
    Miller, Thomas & Hickey, for appellee;
    L. C. Miller and Prancis E. Hickey, of counsel.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    Mrs. A. N. Brodt and A. N. Brodt, Appellants, v. Langdon, Inc., Appellee.
    Gen. No. 42,430.

      opinion filed September 27, 1943.
    Erwin W. Roemer, for appellants;
    Milton H. Gray apd Charles T. Shanner, of counsel;
    George D. Sullivan and Mitchell Kilanowski, for appellee;
    Mitchell Kilanowski, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Presiding Justice O ’Connor.

text:
    Alberta Gibbs, Appellant, v. Teslar Gibbs, Appellee.
    Gen. No. 42,474.
    opinion filed September 27, 1943.
    Ellis & Westbrooks and Joseph J. Attwell, Jr., for appellant;
    Joseph J. Attwell, Jr., of counsel;
    Herbert A. Ellis, for appellee.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


text:
    Joseph K. Gorman and Jane Gorman, Appellants, v. General Outdoor Advertising Company, Inc., Appellee.
    Gen. No. 42,583.
    opinion filed September 27, 1943.
    Hubbard, Baker & Rice, for appellants;
    Lord, Bissell & Kadyk, for appellee.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


author: Justice Matchett.

text:
    Lilly Josephs, Appellee, v. Icio Josephs, Appellant.
    Gen. No. 42,465.
    opinion filed September 27, 1943.
    Alex M. Golman, for appellant;
    no appearance for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Walter Szymczak, Individually and as Executor of Estate of Stanley Szymczak, and Theodore Szymczak, Appellees, v. Jean Jawor, Formerly Jean Szymczak, Appellant.
    Gen. No. 42,537.
    opinion filed September 27, 1943.
    Clyde L. Todd and Joseph Steller, for appellant;
    C. S. Prasz and E. C. P. Meier, for appellees.
   Opinion by

Justice Matchett.

Not to be published in full.


author: Justice Niemeyer.

text:
    Joseph Wagner, Trading as Wagner Dairy Products, Appellant, v. Milk Wagon Drivers’ Union, Local 753 et al., Appellees.
    Gen. No. 42,358.
    opinion filed September 27, 1943.
    Joseph C. Kanak and Harvey L. Cavender, for appellant;
    David A. Riskind, for appellees.
   Opinion by

Justice Niemeyer.

Not to be published in fuU.


text:
    Vida Best, Appellant, v. Mid-West Construction Corporation, Appellee.
    Gen. No. 42,483.
    opinion filed September 27, 1943.
    Irving N. Stenn and Philip Rosenthal, for appellant;
    Stuart B. Krohii and Ian P. MacDonald, of counsel;
    Abraham Lepine, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Mr. Presiding Justice O’Connor

text:
    Elizabeth Terry, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,778.
    Opinion filed October 25, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, Louis H. Geiman and L. Louis Hartón, Assistant Corporation Counsel, of counsel.
    Arthur Grossman and Levisohn & Levisohn, all of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the City of Chicago seeks to reverse an order entered by the circuit court of Cook county, awarding plaintiff a. new trial in a personal injury case.

The record discloses that on July 14, 1939, plaintiff filed her complaint against the city to recover damages for personal injuries which she alleged resulted from the city’s failure to keep the sidewalks in a reasonably safe condition for public travel. There was a jury trial which resulted in a disagreement. There was a second trial and a verdict in favor of defendant. Afterward the court awarded plaintiff a new trial. We granted the city leave to appeal.

The evidence is to the effect that about 4 o ’clock, on the afternoon of February 2, 1939, plaintiff was walking east on the south sidewalk of Dakin street, approaching her home at 931 Dakin street. She had been shopping and had a package of groceries in her arms. There had been a great deal of snow from January 28 to the day of the accident. We had occasion to consider the same heavy snow fall in Casper v. City of Chicago, 320 Ill. App. 269, opinion filed September 27, 1943.

The evidence in the instant case further shows that the sidewalk in front of 931-935 Dakin street had been cleared of snow. On each side of the sidewalk, the parkway and the lawn were covered with several feet of snow.

Plaintiff testified that at the time in question she was living at 931 Dakin street, about 40 feet from where she was hurt; that “I caught my heel in a ridge office which threw me,” as a result of which she was injured.

Defendant offered in evidence a photograph showing the sidewalk and its condition at the place plaintiff testified she fell. Plaintiff’s counsel objected to the introduction of this photograph, the' objection was overruled and it was received in evidence. After the verdict was returned in defendant’s favor, plaintiff moved for a new trial and in its motion specified six counts: “1. The verdict is against the weight of the evidence. 2. The verdict is against the law. 3. The verdict is against the law and the evidence. 4. The Court admitted improper and illegal evidence offered by defendant ovér the objection of the plaintiff. 5. The Court improperly admitted into evidence on behalf of defendant, a certain photograph. 6. The attorney for defendant in his argument to the jury made improper remarks.”

The court ou April 18, 1943, disposed of defendant’s motion for a new trial, which was some days after the motion was filed. In doing so, the record discloses the following: “The Court: I have been going over this motion for a new trial. You never told me, Mr. Albert [attorney for the City] when those photographs were taken and I don’t even know now when they were taken. Mr. Albert: The court did not commit any error in admitting it in evidence. The Court: Well, I am not so sure about that and I think the court committed an error in admitting this exhibit in evidence. Why don’t you lawyers get together and settle this case. Mr. Albert-: Judge, this is not the type of a case the city is willing to settle and we don’t believe there is any liability on the part of the city. The Court: Well, I am making up my mind right now, I am going to grant a new trial in this case.”

The only point made by counsel for the city is.that the photograph was properly admitted in evidence.. When plaintiff and another witness were shown this photograph before it was offered in evidence they testified in substance that it correctly represented the condition of the sidewalk at the time of the accident. In this circumstance, obviously it was admissible in evidence regardless of when it was taken.

Plaintiff, after being shown the photograph, testified: “With the exception of the snow and icy ridges which are not there it shows the depression in the slab there. Eight there (marking with a cross) is where I fell.”

The order of the circuit court of Cook county granting plaintiff a new trial, is reversed and the matter remanded with directions .to overrule the motion for a new trial and to enter judgment on the verdict. Scott v. Freeport Motor Casualty Co., 379 Ill. 155.

Reversed and remanded with directions.

Niemeyer and Matchett, JJ., concur.


text:
    Carl Storz, Appellee, v. James Timco, Trading as Sunnyside Club, and Chicago Title and Trust Company, Appellants.
    Gen. No. 42,646.
    Opinion filed October 25, 1943.
    Lord, Bissell & Kadyk, of Chicago, for appellants; Leonard F. Martin, Bruce S. Parkhill and Harold E. Baily, all of Chicago, of counsel.
    Richard James Stevens, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendants appeal from a judgment for $2,000, entered in an action under the Dram Shop Act for injuries 'sustained by plaintiff in a fight in a tavern operated by defendant Timco.

' Plaintiff, as the only occurrence witness in his behalf, testified that he was injured by three intoxicated persons. The bartender, Knight — one of plaintiff’s assailants, four policemen and Timco, witnesses for defendants, testified that none of the persons fighting-plaintiff were intoxicated. Defendants contend that the verdict of guilty, which necessarily included the finding- that the men who injured plaintiff were intoxicated, is against the manifest weight of the evidence.

Plaintiff, a steel worker, quit work around 11:30 p. m. on January 29, 1941; after going to his boardinghouse he went out for a sandwich and arrived at Timco’s tavern at 7515 or 19 Cottage Gfrove avenue about 1:30 a. m. on the 30th; over a period of an hour and a half he had one whiskey and about three beers. It is not claimed that he was intoxicated.. The witness Patrick Knight, his brother John and brother-in-law Dominick Daniels, cab drivers, arrived at the tavern between 2 and 2:30 a. m. They had finished their work at about 1 o’clock and, according to Knight, had nothing to drink before arriving at' Timco’s place. Knight further testified that they had one beer and had ordered a second but had not drunk it before the fight started. The bartender says that beer is all they had to drink — approximately three rounds. Plaintiff’s testimony as to the drinks served them is somewhat confusing. He testified that he saw them have one whiskey and three or four beers; that he did not see them have anything but the whiskey; that they had whiskey and beer but- would not say how many. He further testified that the three were singing, and one went around the bar to play the drum in the orchestra. Plaintiff testified that he was assaulted by four persons ; that three were intoxicated, and the fourth sober. No other witness mentioned more than three persons. Knight testified that only he, his brother and brother-in-law beat the plaintiff. Plaintiff testified that he was sitting near the back end of the bar when each of the three intoxicated men in turn came np to him, inquired why he was patronizing the place and stated that they did not like it and were going to “take it over” and that plaintiff should go along with them; that one wanted to buy him a drink; that the first, two were friendly to him but the third was threatening; that the four were then gathered around him and he picked up a stool but did not throw it; that he ran to the washroom, where the four followed, broke the panel of the door and beat him; that they left the tavern before the police arrived.

Knight testified that the plaintiff asked them to buy a drink and on their refusal threw the stool and hit his brother-in-law; that plaintiff then ran to the washroom, where the three followed and beat him; that they remained until the arrival of the police. The bartender testified that his attention was directed by the thud of the thrown stool, which lay on the floor near the man it hit; that the three men followed plaintiff to the washroom. The bartender, the four police officers and Timco all testified that the three assailants remained until the police came. The police say that none of the persons involved-wanted to swear out a complaint; that they made no arrest but took plaintiff to the hospital in the squad car.

John Knight was in the army and Daniels sick at the time of the trial. None of the three members of the orchestra nor the dicegirl, who were in the tavern, were called as witnesses. Timco testified that he could not get the names of the persons in the orchestra and could not locate the dicegirl.

Defendants argue that the weight of plaintiff’s testimony is greatly lessened by his exaggerated statements as to his earnings prior to his injury. There ■ seems to be a variance between plaintiff’s testimony and the statement of his earnings received in evidence. The witness was testifying more than 18 months after the occurrence and it was mainly a question for the jury and the trial court as to whether he was wilfully testifying falsely.

The evidence is in direct conflict. The testimony of one side is untrue, if not deliberately false. There is nothing inherently improbable in the testimony of the plaintiff. If the fight happened as he says it did it is a fair inference that his assailants were drunk. He is vitally interested in the outcome of the suit. Defendant Timeo is equally interested, and Knight and the bartender, witnesses for defendant, have a lesser interest. The policemen do not appear to have made any serious effort to ascertain whether or not the assailants were intoxicated. The jury were the judges of the credibility of the witnesses. They accepted plaintiff’s testimony and rejected that on behalf of defendants. The trial court, who saw the witnesses and heard them testify, has approved the verdict. The jury and the trial court were in a better position to judge of the truth of the testimony than is this court. We cannot say that the verdict is manifestly against the weight of the evidence.

Plaintiff testified that after John Knight had gone around the bar to the orchestra and played the drum he talked with plaintiff and said, “Are we stiff?” Objection and a motion to strike the remark were made and overruled. No objection to other parts of conversations between plaintiff and the Knights and Daniels is argued. Defendants rely principally upon the case of Lake Erie & W. Ry. Co. v. Zoffinger, 107 Ill. 199. That was .an action for personal injuries sustained at a street crossing. Defendant sought to prove that the plaintiff was intoxicated; it called a witness who saw him in a saloon and testified that he thought the plaintiff was drunk; the defendant also offered to prove by the witness that the plaintiff had asked for more liquor and that the bartender had said, “No, you. have enough.” The Supreme Court held that this testimony was not admissible to prove the plaintiff’s intoxication. That case bears no analogy to the present case. There intoxication was to be proved by testimony stating the opinion of a third person. Here the intoxication of the Knights and Daniels is a material issue. That intoxication must be determined by their condition as evidenced by their appearance and what they did and said. Therefore, the conversation was properly admissible and the presence or absence of Timco was wholly immaterial. The remark was not an admission of intoxication conclusive upon defendants, but a circumstance or incident to be considered by the jury with all the other evidence in determining the question of intoxication, the same as the conduct of the Knights and Daniels in singing and playing the drum, to which no objection is made. If the defendants thought that the jury might have an erroneous impression of the effect of the statement they could have asked for an instruction limiting its effect. These conversations between plaintiff and his assailants were also admissible upon the question of who was the aggressor in the fight.

The judgment of the superior court is affirmed.

Affirmed.

O’Cohhor, P. J., and Matchett, J., concur.


author: Mr. Presiding Justice Dady

text:
    Dwight Mason, Appellant, v. Peabody Coal Company, Appellee.
    Gen. No. 9,391.

      Opinion filed October 25, 1943.
    Edward E. Adams, of Taylorville, for appellant.
    Hershey & Bliss, of Taylorville, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

Plaintiff is the owner of about 245 acres of farm lands in Christian county. Defendant is the owner of the coal and other mineral rights under the surface of such lands.

The complaint contained two counts. The question of the sufficiency of the second count is not before us.

The first count charged that the defendant operated a coal mine in the vicinity of the land, and in removing coal from underneath the plaintiff’s premises defendant did not regard its duty to leave sufficient ribs, pillars and supports to prevent the superincumbent surface from sinking or subsiding, but failed in that regard, and so negligently, conducted its mining operations as to cause a large portion of the surface to subside and be depressed below its usual and natural level. It was further alleged that as a result of such subsidence the crops, buildings, fences and other improvements on the plaintiff’s land were injured, and that portions of the land were rendered less fit for farm purposes, and that the whole of plaintiff’s farm was thereby depreciated in value.

The trial court sustained a motion of the defendant to dismiss the first count. Plaintiff elected to abide by such count and thereupon the trial court dismissed such count and rendered judgment thereon in favor of the defendant and against the plaintiff in bar of the action of the plaintiff on such count.

The plaintiff appeals from such judgment.

By the written motion to dismiss, and as the case is presented to us, it is admitted that on July 16, 1906, Seth Mason a widower, who was then the owner of said premises and was a predecessor in title of the plaintiff, by warranty deed, conveyed to the grantor of the defendant company all of the coal and other minerals underlying the surface of said premises,

“together with the following rights and privileges, to wit: to enter beneath the surface of said premises, and mine, dig and remove the coal and other mineral therefrom . . . hereby for himself, his heirs, legal representatives and assigns forever waiving, releasing and surrendering any and all claims for damages and all liability by reason of damages either to persons or property which may in any way be caused or occasioned at any time hereafter, directly or indirectly, by the mining or removing of coal or other minerals from said premises, or by the enjoyment of any of the rights and privileges hereby granted, and likewise hereby waiving and releasing all right of homestead in said premises.”

The only question presented is whether or not the provisions of said deed constitute a full and complete bar to plaintiff’s action.

It is a general rule, in the absence of. a release or waiver, that the owner of the surface of land subject to a grant or conveyance of the underlying coal and mineral rights has a right to subjacent support for his land. (Wilms v. Jess, 94. Ill. 464.) Where there has been no release or waiver this right is absolute and does not depend upon whether the mining is done with the greatest degree of care or in accordance with the most approved system of mining. (Lloyd v. Catlin Goal Co., 210 Ill. 460.)

It is also equally established that the owner of the surface may, either in the deed conveying the mineral rights or by separate contract, agree to waive and release all damages caused by the loss of subjacent support. (Wesley v. Chicago, W. & F. Coal Co., 221 Ill. App. 427; Cope v. United States Fuel Co., 229 Ill. App. 243.) A waiver or release of this nature is not against public policy and will be fully enforced if the agreement is otherwise binding. (Wesley v. Chicago, W. & F. Coal Co., supra.) Such agreements, however, are to be strictly construed and the courts will not find that there has been a waiver or release of the right of subjacent support unless the intention to give such a waiver or release clearly appears either by express w.ords or by necessary implication from the language used. (Seitz v. Coal Valley Min. Co., 149 Ill. App. 85.)

Where no ambiguity is present in a conveyance, the intention of the grantor must be ascertained from the deed itself (Farnam v. Thompkins, 171 Ill. 519), and a grantor is presumed to intend what his words import. (Duffield v. Duffield, 268 Ill. 29.)

By the language of the deed in question the damages waived and released are “any” and “all” claims for damage and “all” liability by reason of damage either to “persons or .property” in “any” way caused at “any” time “directly or indirectly” by the mining or removing of coal from plaintiff’s premises or by the enjoyment of “any” of the rights and privileges granted by the deed. Such language is plain and unambiguous. It is comprehensive and all-inclusive in its reference to possible claims for damages. Instead of specifying particular damages and injuries, it purports to give a general release of “all” claims, and the general character of the language used is not in any way qualified or' restricted by any other language. In our opinion, the damages set'forth in the plaintiff’s complaint are clearly damages to property caused either directly or indirectly by the mining and removal of coal under plaintiff’s premises.

Although each case must depend upon the particular language employed, a clause less comprehensive in character than the one involved here was considered sufficient to release the right of subjacent support in Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492, 83 Atl. 478, 41 L. R. A. (N. S.) 236.

It is our opinion that the defense of waiver and release as set forth in defendant’s motion constituted a complete bar to the relief sought by plaintiff. The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Hayes

text:
    Walter W. Williams, and Walter W. Williams, Next Friend to Charles W. Williams, Minor, Appellants, v. Janet G. Williams, Appellee.
    Gen. No. 9,387.
    Opinion filed October 25, 1943.
    Stone & Taylor, of Bloomington, for appellants.
    Costigan, Wollrab & Yoder, of Bloomington, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

Walter W. Williams obtained a divorce from Janet Gr. Williams on the ground of desertion in the circuit court of McLean county on July 26, 1940. At the time of the divorce, their family consisted of two children: Arthur, age five, a son of Mrs. Williams by a former marriage who had been adopted by Walter W. Williams, and Charles W., age three, issue of their marriage. The divorce decree granted custody of both children to their mother, but provided for periodic visits to the father’s home. The decree also ordered Williams to pay four hundred and fifty dollars per month for the care, support and education of the children during their minority. On November 6, 1941, Mrs. Williams remarried and her husband is now in the armed service stationed in Washington, D. C. On January 27, 1942 Walter W. Williams filed a petition in the divorce action seeking to modify the decree of divorce to give him custody of both children. This petition was denied by the circuit court of McLean county and an appeal was taken to the Supreme Court by Williams in his own right, and as next friend of his minor son Charles W. The cause was transferred here by the Supreme Court because no ground for direct appeal to that court was established. Williams v. Williams, 381 Ill. 507.

It appears from the record that Mrs. Williams has established a home for herself and two children in an apartment in downtown Blooming-ton, Illinois. No criticism is made of their surroundings except that they are not as extensive nor as finely equipped as the home of the children’s father. It further appears that the children enjoy a normal home life and are healthy, active youngsters. It does appear that during a visit at their father’s home they refused to obey certain of his employees and displayed poor manners and bad eating habits. There is also some evidence that they were not overly affectionate toward their father. It can easily be understood why Mr. Williams is disturbed by these traits and he is to be commended in seeking to suppress them. However it nowhere appears that the children have become incorrigible or have tendencies uncommon to many boys of their age, nor does it appear that Mrs. Williams is neglecting her duties as a mother or is incapable of disciplining her children. It is unfortunate that both father and mother cannot share the responsibility of molding the character and conduct of these children. However the home has been broken and this ideal cannot be achieved. Williams must have foreseen this when he decided upon a divorce.

Much emphasis is placed by Williams upon the effect of a certain conveyance in trust by U. O. Williams, grandfather of Charles W. Williams, of certain real property valued at one hundred and twenty-five thousand dollars. This deed gave a remainder interest to Charles in the entire property, provided his custody should be transferred to his father, Walter W. Williams, by the circuit court of McLean county. In the first place it is apparent that this instrument cannot have -any effect on the issue of who is entitled to the custody of Arthur. As far as Charles is concerned, this court is well aware of the financial advantages that would accrue to this boy if the terms of the deed were complied with. On the other hand, financial considerations, after a certain .point, are entitled to little consideration in the determination of the welfare of a child in a case of this type, especially where it appears that the father is contributing amply to his support.

The circuit court of McLean county has twice decided that Mrs. Williams is a fit person to be entrusted with the care and custody of these children. On questions of this character, much is left to the sound discretion of the chancellor, Gillett v. Bryant, 203 Ill. App. 322, subject of course to review where abuse is shown. Cohn v. Scott, 231 Ill. 556. We do not believe that the chancellor abused his discretion in this case and we do not feel warranted in disturbing his judgment. If, in the future, Williams can show that the children are not being properly cared for or that because of the remarriage of Mrs. Williams their welfare is being jeopardized, the continuing jurisdiction of the circuit court of McLean county over these children will afford him an opportunity to have their custody changed.

The circuit court allowed Mrs. Williams four hundred dollars attorney’s fees for services rendered by her attorneys in this suit, and on an appeal in an earlier phase of 'this case where an accounting was demanded by Williams and successfully resisted by Mrs. Williams, Williams contends that this allowance was improper and cites Gerson v. Mathes, 252 Ill. App. 607. In that case an allowance of attorney’s fees was denied because the petition there filed sought to change the custody of the children involved, not for their welfare, but for the convenience of the parties. In this case, the welfare of the children is directly in issue and their interests were involved in the earlier suit for an accounting. We believe the allowance in this case was proper; Hoffman v. Hoffman, 316 Ill. 204; Thomas v. Thomas, 233 Ill. App. 488.

The decree of the circuit court of McLean county is affirmed.

Decree affirmed.


text:
    People of the State of Illinois, Defendant in Error, v. Francisco Chavez, Plaintiff in Error.
    Gen. No. 42,564.
    opinion filed October 25, 1943.
    W. G. Anderson, for plaintiff in error;
    Francis J. Callahan, of counsel;
    Thomas J. Courtney, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Melvin S. Eembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


text:
    Alvina Solton, Executrix of Last Will and Testament of Anna Zimmerman, Deceased, Appellant, v. Otto Baumgarth and Elsbeth Baumgarth. Otto Baumgarth, Appellee.
    Gen. No. 42,601.

      opinion filed October 25, 1943.
    Otto C. Rentner and Kellam Poster, for appellant;
    no appearance for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Ruth Schikora, Appellee, v. Freeport Motor Casualty Company, Appellant.
    Gen. No. 42,616.
    opinion filed October 25, 1943;
    rehearing denied November 8, 1943.
    Burt A. Crowe, for appellant;
    Joseph P. Elward, for appellee;
    Joseph F. Elward and Philip Conley, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Vito Lucarelli, Appellee, v. Dr. R. A. Winters, Appellant.
    Gen. No. 42,627.
    opinion filed October 25, 1943;
    rehearing denied November 9, 1943.
    Lord, Bissell & Kadyk, for appellant;
    Maurice S. Weinzelbaum, for appellee;
    Maurice S. Weinzelbaum, Mayer Goldberg, Geoffrey Fleming and Arnold F. Berger, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Charles Cutler, Appellee, v. Gustave Vilhelm Lindstrom and Hedvig Esterblom Nordli, Heirs at Law of John Lindstrom, Deceased, Appellants.
    Gen. No. 42,595.
    opinion filed October 25, 1943;
    rehearing denied November 13, 1943.
    Anderson & Anderson, for appellants;
    Black & Beermann and Louis L. Spear, for appellee;
    Benj. H. Black, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Nathan Finder, Appellee, v. Morris Miller and Company, Inc., Appellant.
    Gen. No. 42,607.
    opinion filed October 25, 1943;
    rehearing denied November 13, 1943.
    Morton B. Hochberg, for appellant;
    Harry M. Kroon, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Leo A. Ryan, Administrator of Estate of Chauncey Esch, Deceased, Appellee, v. Chicago and North Western Railway Company, Appellant.
    Gen. No. 42,617.
    opinion filed October 25, 1943.
    Nelson J. Wilcox and Drennan J. Slater, for appellant;
    Ryan, Condon & Livingston, for appellee;
    John M. Tuohy, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Frank Edelman, Plaintiff in Error.
    Gen. No. 42,629.
    opinion filed October 25, 1943;
    rehearing denied November 8, 1943.
    W. G. Anderson and Erancis J. Callahan, for plaintiff in error;
    Thomas J. Courtney, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Armin F. Hillmer et al., Plaintiffs, v. Chicago Bank of Commerce et al., Defendants. Armin F. Hillmer et al., Appellants, v. Karl E. Seyfarth, Appellee.
    Gen. No. 42,597.
    opinion filed October 25, 1943.
    Deneen & Massena and Leonard & Leonard, for appellants;
    Marshall A. Pipin, Gordon MeLeish Leonard and John H. Martin, of counsel;
    Taylor, Miller; Busch & Boyden, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published, in full.


text:
    Robert Megahy, Appellee, v. Thelma Megahy, Appellant.
    Gen. No. 42,611.
    opinion filed October 25, 1943;
    rehearing denied November 8,1943.
    Braden, Hall, Barnes & Blakey, for appellant;
    Houston H. Hall, of counsel;
    David J. Maddox, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice Nieheyer.

text:
    Dominico Selvaggio, Appellant, v. Vincenzo Micci and Rosa Micci, Appellees.
    Gen. No. 42,624.
    opinion filed October 25, 1943;
    rehearing denied November 8, 1943.
    Phil S. Roe, for appellant;
    Stanley A. Wilezynski, for appellees.
   Opinion by

Justice Nieheyer.

Not to be published in full.