text:
    The Peoria and Pekin Union Railway Company v. The Chicago, Rock Island and Pacific Railway Company.

      Filed at Ottawa January 23, 1884.

    1. Common carríer—a railway company as a common carrier of the cars of another company, hauled, over its line. A railway company engaged in the transportation of freights for hire as a common carrier, is bound to transport or haul upon its road the cars of any other railroad company, when requested so to do, and will hold the same relation as a common carrier to such cars that it does to ordinary freight received by it for transportation, and in case of loss will be held to the same measure and character of liability to the owner of the cars so received for transportation, as would attach in respect to any other property.
    2. In this case the defendant railroad company’s principal business was switching ears for other railroad companies. Its tracks were connected with those of the other railroads by a transfer switch, and with mills, elevators and manufactories in and around the city where its business was transacted. The plaintiff corporation brought a car, loaded with freight, to the city, and placed the same on the transfer track, with orders to the defendant to ship the same to a certain distillery, to which place it was taken and unloaded. „When unloaded it was taken by the defendant, without orders from the plaintiff, to a sugar refinery, to be loaded, and then switched to the transfer track for shipment. On the same day the sugar refinery was burned, and also the car: Held, that the defendant was liable, as a common carrier, to the plaintiff for the value of the car so destroyed.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    This action was brought by the Chicago, Bock Island and Pacific Railway Company, against the Peoria and Pekin Union Railway Company, to recover the value of a freight car destroyed by fire. In the first count of the declaration defendant is charged with having borrowed the car, and with a failure to return, on request; and by the second and third counts defendant is charged as a common carrier,—the delivery of the car, the obligation to return, and the failure to do so, being alleged with the usual formality. Only the general issue was filed to the declaration, but by stipulation it was agreed either party might introduce. any evidence under the general issue that could be introduced under any special plea or replication thereto well pleaded. On the trial in the circuit court plaintiff recovered a judgment for $410.14, which was afterwards affirmed in the Appellate Court for the Second District. A majority of the judges of the latter court having certified that in their opinion the case involves questions of law of “such importance on account of principal interest, as well as collateral interests, that it should be passed upon by the Supreme Court, ” defendant brings the ease to this court on appeal, as it was permitted to do under the order of the Appellate Court. It is also certified by the judges of the Appellate Court that certain propositions, numbered from one to seven inclusive, embodied the “main and particular questions of law involved. ” So far as these propositions are or may be necessary to an understanding of the case, they will be found stated in the opinion of the court.
    Messrs. Stevens, Lee & Horton, for the appellant:
    The car was stored on the track of the Chicago, Rock Island and Pacific Railroad Company, as ordered, and while on the track the obligation of the Peoria and Pekin Union Company, if any existed, in the preservation of the car, bore the same relation only as the law imposes on a warehouseman. Porter v. Chicago and Rock Island R. R. Co. 20 Ill. 407; Richards v. M. S. and N. I. R. R. Co. id. 404; Chicago and Alton R. R. Co. v. Scott, 42 id. 132; Merchants' Dispatch Co. v. Hallock, 64 id. 284; Rothschild v. Michigan Central R. R. Co. 69 id. 164.
    The defendant did not stand in the relation of a common carrier as to the plaintiff. The plaintiff did not pay for the switching, but this was done by the consignees.

      Mr. J. C. Hutchins, Mr. Thomas F. Withrow, and Mr. H. W. Wells, for the appellee:
    A railroad company may become a common carrier of cars. Rolling stock is made personalty, and is the subject of carriage. Mallory v. Tioga R. R. Co. 39 Barb. 488; Railroad Co. v. Flanigan, 77 Ill. 365; Railroad Co. v. Smithson, 1 Am. and Eng. Ry. Cases, 101.
    Such companies are liable, as carriers, for the loss of empty sacks while being returned. Pierce v. Milwaukee R. R. Co. 23 Wis. 387; Aldridge v. Railroad Co. 15 Com. B. (N. S.) 582; “The Hardy,” 1 Dill. 460; Adams Express Co. v. Lesure, 39 Ill. 312.
    A carrier can not become a warehouseman while the property is in transit. McDonald v. Western R. R. Co. 34 N. Y. 497; Ouinitt v. Henshaw, 35 Vt. 605.
    A railway company can not make warehouses out of its cars upon its tracks. Jenks case, 103 Ill. 588; Porter v. Railroad Co. 20 id. 407.
   Mr. Justice Scott

delivered the opinion of the Court:

The defendant in this case is a railroad corporation existing under the laws of this State. By the constitution of the State (sec. 12, art. 11,) all railways are “declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law. ” It is conceded defendant is a common carrier of freights for hire, and as such is bound to carry safely all freights tendered, with the usual and customary fares, or answer in damages for its miscarriage or refusal. Section 10, article 11, of the constitution, provides, “the rolling stock and all other movable property belonging to any railroad company or corporation in this State shall be considered personal property. ” It must also be conceded a common carrier of freights would be compelled to receive and carry this class of property for the usual fares, as well as other personal property. When the'facts of this case shall be stated, it will be seen these constitutional provisions have an important bearing on the decision to be rendered.

It appears from the evidence, defendant’s principal business is switching cars for other railroad companies having their terminal joints at Peoria, together with some work of that class on its own account. Its tracks are situated in the lower part of the city, and thence connecting by lines of track with mills, elevators and manufactories in and about the city. Other companies desiring to have cars switched by defendant would place such cars on its transfer switch, and defendant would transfer them to the consignees whose places of business were on its tracks, as they should be ordered to do by the company placing them there. When such ears were unloaded by the consignees, it was the duty of defendant to return them to the company from which it received them. Mogt generally such cars were returned, empty. There is evidence, however, that tends to show it was the common understanding among the companies doing business at this point, if other shippers desired cars, defendant, without any specific order to that effect, was at liberty to place them at their places of business to be loaded, and when loaded they would be returned to the company owning such cars, to be shipped. At all events it appears ears were so handled, and the companies concerned seem to have acquiesced in that mode of doing business. On the 25th day of October, 1881, ' a car belonging to plaintiff was brought to the city of Peoria loaded by the Peoria and Bock Island railroad,—a railroad operated by plaintiff,—and was placed on the transfer track, and the agent who acted for the Bock Island roads ordered it to be switched to the Monarch mills, or distillery. On the 27th day of that month it was taken by defendant to the distillery, where it was unloaded by the consignees, and on the same day it was taken by defendant from the distillery to the Peoria sugar refinery, on an order from the refinery, to be loaded and then switched to the transfer track for shipment by the Chicago, Bock Island and Pacific Bailway Company. In the afternoon of the same day the refinery was burned, and also this car, which was standing in close proximity. There was no order from plaintiff to take this car to the sugar refinery for any purpose, and it is not shown it had any knowledge defendant intended to do so.

The propositions of law certified by the Appellate Court, when resolved, involve the single inquiry whether defendant in the transaction out of which this action arose bore to plaintiff the relation of a common carrier, or was it that of a bailee, or that of a warehouseman. When the true relation of the parties shall be ascertained, the law fixes the extent of defendant’s liability, if any exists. Unless it shall be found defendant was a common carrier as to this car, no liability would rest upon it for the loss, as no negligence is imputed to defendant.

The question presented is one of first impression in this court. Nor have counsel cited any case where the exact question involved has been considered by any court of last resort. It leaves this court free to determine the law on principle, as shall be thought to best subserve public interests as well as the private interests of corporations concerned. No proof is needed to show the extent and the importance of the interests involved in the decision. It is a matter of so much public concern, that judicial notice may be taken of the fact that cars belonging to different companies are interchangeably used on all the principal railroads in the United States, and that no company could do any considerable freighting business that did not conform to this general usage. Without such usage it would be difficult, if, indeed, it would be possible, to transact the commercial business of the country. Freights for shipment across the continent could not well be stopped at the terminus of each carrier’s line, and re-shipped in cars of the connecting carrier. That would occasion more delay than the necessities of commerce would tolerate. The extent of the usage in regard to the exchange and transportation of cars among so many different railroads would seem to require such exacting rules and regulations as would insure the strictest accountability on the part of companies that may transfer or haul cars over their respective roads.

The statute of this State that forbids “extortion and unjust discrimination” by railroad companies, would seem by its provisions to recognize that railroad corporations may be common carriers of “cars,” as well as of freights, for such a corporation is not only forbidden to make any unjust discrimination in its charges for the transportation of passengers or freights, of any description, but for the use and “transportation of any railroad car” upon its road. And why may there not be such a thing as a common carrier of ears, either with or without its load of freight ? As to the freight the car contains, it will be conceded such carrying roads are common carriers, and are subject to the strict liability of such carriers, and, as has been seen, by a constitutional provision all the rolling stock and other movable property belonging to a railroad corporation in this State shall be considered personal property. What reason exists for discriminating against this class of “personal property, ” and for holding that railway companies carrying it shall not be regarded as common carriers ? The mode of moving it, whether on wheels or in carriages, ought not to be the foundation for any distinction. In either case the property is in the exclusive care and control of the carrier, and there is as much reason arising from public considerations why such a carrier should be held to the strict liability of an insurer for the safety of the property, in the .one case as in the other. The facts in the present ease show a strong necessity for imposing the liability attaching to a common carrier. The car in question was delivered to defendant, to be carried over its road to the warehouse of the consignees of the freight it contained. A charge for the service to be rendered was made, and was paid by the consignees. The undertaking was also to return the car to the company from which it had been received, and the charges collected, or to be paid, included the latter service. Thus it is seen defendant had the exclusive control of the car while on its track while in course of transportation to the consignees, and that control would seem to be as absolute as over any package of freight it might have to carry or otherwise deliver. Plaintiff had parted with the care and custody of the car, and could not, at any point on defendant’s road, interfere for its safety. Its care was intrusted to defendant as fully as was the freight it contained. The undertaking of defendant in regard to moving the car was within the scope of the general business it had engaged to do for the public, and it would seem no reason exists why the liability for the safe delivery of the car should not be the same as to the freight it contains, which, it is conceded, is that of a common carrier. On what principle may defendant be considered a common carrier as to freights on its road and not as to the ear containing it, which it is moving over its road with its own propelling power ?

The law, as has been seen, makes all railways in this State “public highways, ” open to the use of all persons for the transportation of their persons or property, under such regulations as may be prescribed by law, and it is apprehended it is unlawful to make any discrimination as to the property offered to be carried, or as to whether it belongs to a private person or to a corporation. If it is such property as is capable of being carried with the means ordinarily employed by such carriers, the obligation is imperative, and the carrier must receive the property and carry it with safety, in the way such property is usually carried, and any failure to do so will subject the carrier to damages.

The only case to which the attention of the court has been directed having any features like the one being considered, is Mallory v. Tioga R. R. Co. 39 Barb. 488. In that case the defendant company, which, it is conceded, was a common carrier as to freights and passengers, engaged to furnish plaintiff the motive power to draw his cars, loaded with his property, over its road, the plaintiff being obligated to load and unload his cars, and furnish brakemen to accompany them, but who were subject to the control of defendant’s conductor, and it was held defendant assumed the liability of a common carrier, and consequently was liable for injuries to plaintiff’s cars and property not caused by inevitable accident or the public enemies.

But aside from authority, the conclusion reached on principle is, defendant occupied the relation of a common carrier as to the car of plaintiff in its possession, as well as the freight it contained, and as such was liable for its safe return to plaintiff, unless its loss occurred from causes which exempt common carriers, which is not claimed in this case.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Board of Supervisors v. H. S. Magoon.

      Filed at Ottawa March 13, 1884.

    1. Certiorari—at common law—not a writ of right, as to private persons—its proper office. At common law the writ of certiorari was used principally in criminal cases, to remove them from an inferior tribunal to the court of King’s Bench for trial. The writ went as a matter of right on the application of the Crown, but when made by the defendant he was required to show cause. As to a private person, the writ was not a writ of right, but cause had to be shown by the petition.

      2. The writ was also used to bring before the court of King’s Bench the record of commissioners of the poor, and other rates, and in cases where an individual was sued in a court having no jurisdiction, and no appeal or writ of error was given by law, and in cases where the jurisdiction had been exceeded, or it appeared that the. proceeding was against the law.
    3. Same—how far discretionary. The allowance of a common law writ of certiorari is largely a matter of discretion with the court. This discretion, however, is not an arbitrary one, but is one subject to review by a court of review.
    4. Same—at whose instance the writ will lie—as to questioning proceedings instituted by the petitioner. A person who prosecuted a petition to alter a road over his land before the commissioners of highways, and was present at every step taken, will not be allowed by certiorari to question the legality of the proceeding in case the decision is adverse to him. If he acts in the matter as though the proceeding was in conformity to the law, he will be bound by his acts, and estopped from questioning it§ legality or regularity.
    5. Highways—notice—estoppel. A party seeking the alteration of a road over his land, by appearing before the highway commissioners at their meeting to determine whether to grant the application, and is heard by them, admits that proper notice of the time and place of the hearing was given, and he will thereafter be estopped from denying the same.
    6. Where a party appears at the time and place fixed for the hearing by the supervisors, of an -appeal from the highway commissioners, and obtains a continuance of the time of the hearing, and on the day to which the same was continued, he and the other parties appear, and are heard until the final conclusion is reached, he will be estopped from urging afterward that sufficient notice of the appeal was not given.
    7. Same—evidence of notice, by recitals. Where highway commissioners recite, in their order denying the prayer of a petitioner to alter a road, that they met at the time and place named in the notice of the hearing, that will be sufficient evidence that proper notice was given.
    8. Same—continuance, requires no proclamation. The statute does not require the supervisors on an appeal from an order of the highway commissioners, on granting a continuance of the hearing of the appeal, to make proclamation of the continuance or postponement. All persons having an interest are presumed to be present, and to take notice of the adjournments of the supervisors.
    9. Same—time of announcing decision of supervisors, on appeal. The statute does not require the supervisors to whom an appeal is taken from an order of the highway commissioners, to announce their decision within twenty days from their first meeting. It fixes no time in which their decision shall be reached and announced. It is sufficient if the report of the supervisors shall be filed with the town clerk within ten days after it has been made.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    Messrs. D. & T. J. Sheean, for the appellants:
    The finding of the giving of the proper notice by the supervisors in their order, is conclusive in this proceeding. The law does not require the notices to be preserved. Shinkle v. Magill, 58 Ill. 424.
    The averments in the return to the writ are important to be considered. Commissioners v. Supervisors of Carthage, 27 Ill. 142; Commissioners v. Harper, 38 id. 109.
    The commissioners might have received any competent evidence of the posting, and if their order shows that such fact has been proved, it is sufficient. Frizell v. Rogers, 82 Ill. 111.
    An appeal presupposes and is a recognition of jurisdiction, and the finding by the supervisors that the jurisdictional notice was given, is sufficient. Wells v. Hicks, 27 Ill. 345; Frizell v. Rogers, 82 id. 111.
    There is no limit in the statute to the time when the supervisors may hear the appeal, except it shall be in advance of the time they meet, to fix it a sufficient length of time to allow the party appealing to give the three days’ notice be'fore the appeal is heard. The casé of Corley v. Kennedy, 28 Ill. 143, was made under a very different statute.
    In this case all parties met at the time and place fixed by the supervisors, and appellee obtained a continuance of the hearing, and at the adjourned meeting the parties again met, and introduced evidence. This of itself was a waiver of the objection now made. Anderson v. Wood, 80 Ill. 16; Town of Winfield v. Moffatt, 42 id. 49.
    The statute does not require that the supervisors shall make public proclamation of adjournments, or post up notices thereof; but if it did, the omission to do so is not jurisdictional. Allison v. Commissioners, 54 Ill. 170.
    Section 72 of the Road law, limiting the time for a final decision, applies only to the commissioners, and not to the supervisors. If it did, it would be merely directory. Ryan v. Vanlandingham, 7 Port. 424; People v. Cook, 14 Barb. 290; Holland v. Osgood, 8 Vt. 280; Whalin v. City of Macomb, 76 Ill. 52.
    By taking the appeal and obtaining a continuance, the party appealing is estopped from denying jurisdiction in either the commissioners or the supervisors. Heffner v. Vandolah, 57 Ill. 520; Dows v. Naper, 91 id. 44; Frick v. Trustees of Schools, 99 id. 167.
    Mr. M. Y. Johnson, and Mr. E. L. Bedford, for the appellee :
    Nothing was before the court but the question of the regularity of the proceedings as they appeared of record. Doolittle v. G. and G. W. R. R. Co. 14 Ill. 383; Commissioners v. Supervisors, 27 id. 140.
    No trial can be had upon any issue of fact, or anything dehors the record. Commissioners v. Supervisors, 27 Ill. 140; C. and I. R. R. Co. v. Fell, 22 id. 333.
    Notice must be given, as required by statute, of the meeting of the commissioners of highways. A want of it will vitiate their proceedings. It is jurisdictional. Commissioners v. Harper, 38 Ill. 103; Cooley v. Kennedy, 28 id. 143.
    Giving the notice was a jurisdictional fact, as it is nowhere recited in the record they were posted, and no affidavit or evidence of record as to the fact. It could never be presumed to give jurisdiction. Shinkle v. Magill, 58 Ill. 424; Frizell v. Rogers, 82 id. 109.
    A party is never estopped from denying jurisdiction when it does not in fact exist, and the statute referred to is not merely directory, but is mandatory.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee sued out a common law writ of certiorari, to bring before the court the record of the proceedings of the road commissioners of Scoles Mound township, in Jo Daviess county, and of three supervisors, refusing to alter a road in that township. On the application and petition for its alteration, the road commissioners refused to grant the prayer of the petition, and the case was appealed to three supervisors, who, after hearing the evidence for and against, on a protracted trial, lasting a number of days, affirmed the decision of the road commissioners, and to vacate and quash these proceedings appellee sued out the writ. On a hearing in the circuit court the proceeding was quashed. From that judgment an appeal was prosecuted to the Appellate Court for the Second District, which affirmed the judgment of the circuit court, and the case is brought to this court by appeal.

The scope of this writ is quite limited at common law. Its operation was enlarged, or the practice regulated, by acts of parliament never in force in this State. It was used principally in criminal cases, to remove them from inferior tribunals to the court of King’s Bench for trial. The writ went, as a matter of course, on the application of the Crown; but when made by the defendant, he was required to show cause. It, as to the defendant, or a private person or private right, was not a writ of right. (Trustees of Schools v. School Directors, 88 Ill. 100.) Cause must be shown by the petition, or it will not be granted, or if it is granted, it must be quashed. It was also used to bring before the court of King’s Bench the record of commissioners of the poor, and other rates, and in cases where an individual was sued in a court having no jurisdiction, and no appeal or writ of error was given by law, or the jurisdiction had been exceeded, or it appeared that the proceeding was against law. The proceedings on the return of the record were confined solely to the record of the lower court or tribunal, unless it were in criminal cases removed to the King’s Bench for trial, as other criminal cases instituted, to be tried at nisi prius. The purpose of the writ was, in all cases, to prevent injustice. Except in criminal cases it was only allowed where there was no appeal or writ of error, and where there was a wrong and injury that could not be otherwise corrected. It was used to prevent irreparable wrong or injury. Unless the writ was asked in a case involving a private matter, it was required to be sought by the attorney for the Crown, or the prosecutor. In matters in which the rights of the public were concerned, the writ was alone prosecuted by the representative of the public. But whether it shall, or not, be granted, is largely a matter of discretion. The doctrine was so' announced in Hyslop v. Finch, 99 Ill.171, and the same doctrine was recognized in Trustees of Schools v. School Directors, 88 Ill. 100, and they announce that this discretion is not an arbitrary exercise of judicial power, but is one that is subject to review. If the discretion has been improvidently exercised in issuing the writ, the error will be corrected on appeal.

If not the prime mover in this proceeding, appellee was one of its promoters. He signed the petition, and seems to have been active in pressing its allowance, and he, at every step in the proceeding, which was to alter a road running over his land, as we understand the record, pressed the petition precisely as though every step was regular and in exact conformity, in every particular, with the requirements of the statute. He had all the notice, and every right was extended to him, that he was entitled to under the statute. He was pressing the petition, and if there was any material requirement omitted he must have then known it, and should have had it corrected before proceeding further. He had no right to trifle with the process of the law, to speculate on the chances of a favorable result, and when it proved adverse, then to turn and claim that what he did was illegal and void. To permit him to so act would render such proceedings vexatious and expensive to no beneficial purpose. Although a person who took no part in the proceeding, or a person opposing a proceeding of this character, might question the correctness of every material step taken, we think appellee is precluded from saying that what he did was not legal, after having urged all of his acts, or from saying those he caused to be performed are illegal and void. He assisted in the inauguration of the proceeding, and acted upon what he and others did as though in conformity to law, and he must be bound by such acts.

As to the objection that the highway commissioners are not shown by the record to have posted the notices required, of the time set for hearing, the record of the town clerk recites that the notice was given, and names the places where they were posted. By appearing and proceeding to a hearing appellee admitted there was notice, and he is estopped to afterwards deny it. Whether or not there was proper notice, he waived that by appearing and proceeding with his application. He had sufficient notice to enable him to appear and be heard, and he was not injured for the want of notice. Whether others not appearing and participating in the proceeding are estopped, is a question not before us for decision. The commissioners recite, in the order entered at the hearing, that they met at the time and place named in the notice, and that is evidence that notice was given. (See Wells v. Hicks, 27 Ill. 345; Frizell v. Rogers, 82 id. 109.) We are clearly of opinion the record shows that the highway commissioners had jurisdiction.

It is urged that the notice was not given of the time and place of the hearing of the appeal, as required by the statute. It is a sufficient answer to this 'objection to say that appellee appeared at the time, and moved for and obtained a continuance of the time for hearing the appeal, and on the day to which it was continued he and the other parties appeared, and the hearing was entered upon and continued until the final result was reached. He is thereby estopped from urging there was not a sufficient notice given of the appeal. Anderson v. Wood, 80 Ill. 16, is decisive of this question.

It is urged that the record fails to show' that proclamation was made or notice given of the continuance of the hearing from the 13th to the 29th day of March. We fail to find any such requirement of the statute. All parties having any interest in the matter are presumed to be present, and to take notice of the adjournments of the supervisors. Appellee had notice, and appeared on the 29 th, and has no right to complain. He was deprived of no right.

It is urged that the supervisors did not announce their decision whether they would grant or refuse the prayer of the petition, within twenty days of their first meeting. Appellee himself, at the first meeting, procured a continuance for sixteen days, and he was heard by counsel and witnesses, which occupied the time of the supervisors, and as he produced the delay by procuring a continuance of his own case, he surely should not be heard to complain. The only limitation on the time when the appeal shall be heard, seems, by the 99th section of chapter 121, to be, that the person appealing shall give notice of the appeal, to the highway commissioners, and to at least three of the petitioners, and also to the same parties a notice when and where such appeal will be tried, at least three days before such trial, within ten days after such decision has been filed in the office of the proper clerk. The 100th section provides that the supervisors shall fix upon a time and place when such appeal shall be heard by them. The 99th section requires that notice of such time and place shall be given within ten days after the decision of the highway commissioners shall be filed with the town clerk. That section also provides that upon such appeal the supervisors shall have the same power and authority as is conferred on the commissioners of highways, not only in regard to the laying-out, altering, widening or vacating any road, but shall have the same power to cause a jury to be summoned to assess damages, etc. It will be observed that whilst this section confers the same power, it does not limit its exercise to the manner prescribed in previous sections as to its exercise by the highway commissioners. But there is no provision relating to the action of the supervisors in trying the appeal, prescribing the time in which the decision shall be reached and announced. In that regard there is no limitation as to the time when the decision shall be made and announced. The 101st section simply provides that they shall make a report of their proceedings and decision in like manner as is required of the commissioners. The 72d and 73d sections provide for the manner in which the commissioners shall proceed to try the petition. The latter of these sections requires the commissioners to indorse on or annex to the petition a brief memorandum of their decision, which shall be signed by the commissioners and filed in the office of the town clerk, so indorsed or annexed, within ten days after it shall be made. The report of the supervisors complied strictly with this requirement, and it must be held sufficient.

A careful consideration of the record satisfies us that there is no error of which appellee can complain. The circuit court should have quashed the writ and dismissed the proceeding. The Appellate Court erred in affirming the judgment of the circuit court, and the judgment of the Appellate Court is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Craig

text:
    Elizabeth McGovern v. The Union Mutual Life Insurance Company.

      Filed at Ottawa November 20, 1883.

    1. Sale under trust deed—whether made at the time appointed in the notice—as to the fraction of an hour. Under the power given the trustee in a deed of trust, he advertised the property named in the deed, for sale, and in the notice appointed “the hour of eleven o’clock" of a certain day as the time at which the sale would be made. The sale was not made at eleven o’clock, but was made between half-past eleven and twelve o’clock of the day named. This was in apt time, under the notice. For the purposes of the notice, and the sale, it was to be considered eleven o’clock until it was twelve o’clock, and the sale might properly be made at any time between eleven and twelve o’clock.
    2. Usury—what constitutes—interest upon interest. The maker of a note sought an extension of time for payment. In computing the amount then due, the interest, which was past due upon the note, was added to the principal, and a new note given for the aggregate amount thus ascertained, and which was to bear interest. This was not usurious. The interest past due upon the old note might well become a part of the principal of the new note, and as such it might properly bear interest.
    3. Same—commissions. In negotiating a loan of money, one of the persons connected with the transaction charged the borrower three per cent commissions for procuring the loan. The borrower claimed that this three per cent so reserved as commissions was in reality but a part of the interest upon the loan, and that the transaction was usurious. At the time of the loan, interest was allowed to be contracted for at the rate of ten per cent per annum. The loan was made at nine per cent, and for three years,—so that, if the three per cent retained as commissions was really interest, it would be at the rate of only one per cent per annum during the time of the loan, which, added to nine per cent, (the rate expressly reserved,) would not exceed the rate allowed by law to be reserved—that is, ten per cent—so the transaction was not usurious on that ground.
    Writ of Error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. S. K. Dow, and Mr. J. Burnham, for the plaintiff in error.

      Messrs. Swett, Haskell & Grosscup, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by Elizabeth McGovern, in the circuit court of Cook county, against the Union Mutual Life Insurance Conqiany, to set aside two sales made by L. D. Boone, trustee, under the power contained in two certain trust deeds, which had been executed by the complainant to secure the payment of certain promissory notes due the defendant. The cause proceeded to a hearing on bill, answer, replication and proofs, and the court rendered a decree dismissing the bill, and the complainant sued out this writ of error.

The property involved consists of certain houses and lots on Adams and Desplaines streets, in Chicago, and fifty-six acres of land fronting on Fifty-fifth street boulevard, usually known as the “Boulevard property. ” In 1873 the property was incumbered by two trust deeds, of $7500 each, which complainant had given to the defendant, and also a trust deed for some $5000, which John L. Walsh, a former owner, had placed on the property. The interest had not been paid on these claims for near two years, and there were also about two years’ back taxes due, so that the claim of the defendant amounted in the aggregate to something over $23,000. The complainant, for the purpose of paying off the indebtedness, made sale of a portion of the “Boulevard property” to one Weston. A contract in writing was executed, and $500 was paid in cash on the purchase, but when the abstract was brought down it appeared that one B. K. Turner was the owner of the property. The title of Turner, however, was regarded by many as a forgery, but the purchaser refused to consummate his purchase while the title remained of record in Turner. This trade was therefore abandoned, and the complainant then applied to the defendant to negotiate a loan which would liquidate all claims on the property. After some negotiation an arrangement was made, the result of which was, complainant, on June 26, 1873, executed and delivered to the defendant a deed of trust on all the property, to secure the sum of $43,000. The items which* made up the sum of $43,000 are as follows:

Loan dated September 25, 1867, - $7,500.00
Interest and deferred interest, ... 1,452.00
Loan to Walsh, August 18, 1868, ... 5,000.00
Interest and deferred interest on same, - - 793.20
Loan dated May 8, 1871, .... 7,500.00
Interest and deferred interest on same, - - 1,386.00
Insurance advanced September, 1872, - - 73.50
Interest on same,..... 5.50
Paid Weston for contract, .... 500.00
Paid Mrs. Eoe, two notes, .... 420.00
Interest on same,......42.00
Paid for recording trust deed, $2.50; three release deeds, $1.50; recording Turner’s deed, 80 cents, ------ 4.80
Paid Turner for his title, .... 15,000.00
Paid Park tax check, .... 1,030.00
Commissions on this loan, .... 1,290.00
Check, July 7, to balance, - 1,003.00
Total,.......$43,000.00

On the 14th day of July, 1877, in default of payment, all the property embraced in the deed of trust was sold at public vendue, under the power contained therein, and purchased by the defendant.

The two main grounds relied upon to defeat the sale made under the deed of trust are: First, that the $15,000 advanced to Turner for his title, and included in the mortgage, was not authorized by the complainant, and when she executed the deed of trust she was not aware of the fact that it was embraced therein; second, the sale under the trust deed was void, because not made at the time specified in the published notice. These are the principal points relied upon, as we understand the record, to defeat the title acquired by the defendant by virtue of the sale under the deed of trust.

The fact that complainant executed the notes for $43,000 is not denied, nor is there any controversy in regard to the fact that complainant executed and acknowledged the deed of trust which was given to secure the payment of the $43,000. The complainant testified that she did not consent to any trade with Turner, and did not authorize any one to purchase the Turner title, and never assented to paying anything for it. But she was not corroborated by the other evidence in the case. Mr. Boone, who was the agent for the life insurance company, negotiated the loan. He says that he and the complainant called on Mr. Sleeper, and consulted him in regard to the Turner title; that the matter was fully investigated, and it was determined, after mature deliberation, to buy the Turner title. Sleeper was called as a witness. He says the comjilainant and Boone called on him several-times in regard to the Turner title, and the matter was fully considered, and it was finally determined by all of them to buy the title. In addition to this, the complainant admitted, in her cross-examination, that a siiort time after the deed of trust was executed she learned that it was given for.$43,000. But after she obtained this information she never called on Boone for the balance of the money represented by the deed of trust, and due her, which was $15,000, if the Turner claim was not to be purchased with a part of the money she obtained from Boone. This conduct on her part can not well be reconciled with the theory that she did not assent to the purchase of the Turner title. She knew the amount of the deed of trust which she had given on her land. She knew that the amount of the incumbrances on her property which the life insurance company agreed to pay and discharge amounted to only about the sum of §28,000. Now, if the insurance company was not authorized to purchase the Turner title, why is it that she failed to call for the balance of the money she had loaned, of the company, which she had given a mortgage to secure ? The complainant is a person of ordinary intelligence, and if this Turner purchase was not understood or authorized by her, she never would have consented that Boone should keep §15,000 of. her money for nothing. This is too unreasonable to believe for a moment.

We now come to the question whether the sale occurred at the time appointed in the-notice. The advertisement of the sale gave notice that the property would be sold “at the hour of eleven o’clock, ” but the sale did not occur until between half-past eleven and twelve o’clock, and it is claimed that under the notice the trustee was bound to sell the property at eleven o’clock sharp. We do not concur in that view. The law does not recognize fractions of an hour or- fractions of a day, and when a notice says that a sale of land will be made at the hour of eleven o’clock, the practical common sense of the language used is, that the sale will be made during the hour of eleven, or between eleven and twelve o’clock. This is upon the ground that eleven o’clock means from eleven until twelve,—in other words, it is eleven o’clock from eleven to twelve. It would have been impossible for the trustee to have made this sale precisely at eleven o’clock. That is but an instant, and before the trustee could have read two lines of the advertisement the time would have been gone. The law does not expect or require impossible things, and a moment’s reflection is enough to convince any reasonable person that the trustee, under this notice, was not required to appear and sell precisely at eleven o’clock, but the notice gave him the right to appear at any time during the hour and make the sale.

It is also said that the transaction was usurious. We do not so understand it. The fact that the life insurance company computed the amount due it from the complainant in the different mortgages, and took a new note and mortgage for this amount thus due, with interest, which was added to the amount of money advanced, and made up the $43,000, did not render the transaction usurious. When interest upon a note is past due, no reason is perceived which will prevent the holder from taking a new note from the debtor for principal and interest, and make this sum bear the legal rate of interest. Such a transaction is in all respects legitimate.

It appears, from the evidence, that Boone charged the complainant three per cent commissions for procuring the loan of $43,000 from the life insurance company, making the sum of $1290, and it is claimed that this rendered the contract usurious. When this loan was made the legal rate of interest was ten per cent per annum when the contract provided for this amount. The loan in this case was for three years, at nine per cent interest. Now, the three per cent commissions only amounted to one per cent per annum, so that if the commissions are regarded as interest, and added to the interest at nine per cent, provided for in the note, the rate would still be only ten per cent, and not usurious.

It is also claimed that Boone wrongfully failed to record the release of the Walsh trust deed, but subsequently advertised and sold the property in payment of it. We do not regard it necessary to inquire whether the sale under the Walsh deed of trust was authorized or not. If the sale under the $43,000 trust deed was valid, as we have seen it was, all the title complainant had in the property passed under that sale, and it in no manner concerns her whether the sale under the Walsh deed of trust was proper or not, and as no one else is complaining, it will not be necessary to enter upon the discussion of the question.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    William Schroeder v. The Trade Insurance Company of Camden.

      Filed at Ottawa November 20, 1883.

    1. Insurance—construction of policy—most favorably to assured. A policy of insurance will be construed most favorably for the insured in case of uncertainty in its terms, as the language used therein is that of the insurer.
    2. Same—warranty against incumbrances—effect of giving a subsequent mortgage. A policy of insurance issued on personal property on December 17, 1878, contained a clause that a special survey and application made to a different company, dated February 2, 1878, should form a part thereof, and a warranty on the part of the assured of the conditions, situation or occupancy of the property, and making the policy void for any omission to make known every fact material to the risk, etc. On July 11, 1878, the insured had executed a chattel mortgage on the property: Held, that the representation and warranty had reference to the facts and the condition of the property at the date of the application, and not that of the issue of the policy in December, 1878, and hence there was no breach of the warranty against incumbrances.
    3. Same—agreed state of facts—omission to state the value of the property insured. A stipulation of facts for the Appellate Court in an action on a policy of insurance failed to state the value of the property destroyed, but gave a description of the same.-^as, a two-story frame building, with additions, and an engine and boiler house adjoining, used as a planing mill and sash, door and blind factory, and an engine and boiler, and connections, and fixed and movable machinery, shafting, belting, gearing, pulleys and tools, and stock consisting chiefly of lumber and sash, doors and blinds, situated in the town, etc.: Held, that in determining whether the court below erred in finding for the defendant, this court would take judicial notice that there was a value to such property. An appellate court not being called on to assess the damages, it was not necessary the agreed state of facts should state the value of the property.
    4. Same—omission to state the time to be covered by the policy. A policy of insurance on property against loss by fire, in the sum of $500, was silent as to the time the insurance was to cover. Fourteen days after its date the property was destroyed by fire: Held, that proof of the issue of the policy and the loss, made out a prima facie right of action in favor of the assured, and that the insurance would be regarded as being for a reasonable length of time after the issue of the policy.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Richard Prendebgast, Judge, presiding.
    Mr. H. H. Anderson, for the appellant:
    The application must be taken as if made directly to the defendant, and it is made a part of the policy,—its date as well as its other parts.
    In case of ambiguity or uncertainty, a policy of insurance will be construed most favorably to secure the interests of the assured. Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644.
    A relation once shown, it will be presumed that' it continues. This applies to many relations besides that of insurer and insured. 2 Wharton on Evidence, 1284-1289; Wood on Fire Insurance, p. 4, note 2; 1 Greenleaf on Evidence, sec. 41; Starkie on Evidence, (10th ed.) 760, 761; 2 Best on Evidence, see. 405; Eames v. Eames, 41 N. H. 177; Farr v. Farr, 40 Pa. 615; Brown v. Burnham, 28 Maine, 38.
    The court will take judicial notice that property, such as was destroyed, has a value. As to what they will take such notice, see Bouvier’s Law Die.; 1 Greenleaf on Evidence, see. 6; Starkie on Evidence, 735; Solomon v. State, 28 Ala. 83.
    Where a breach of a contract is shown, some damages will be inferred or presumed. 1 Sedgwick on Damages, 71, 81; McAneary v. Jewell, 10 Allen, 151; Rosenbaum v. McThomas, 34 Ind. 331; Burnap v. Wright, 14 Ill. 301; McConnel v. Kibbe, 33 id. 175.
    Mr. H. H. C. Miller, for the appellee:
    The application to the Royal Canadian Insurance 'Company was made a part of the contract, and “a warranty on the part of the assured. ” A warranty by the assured in relation to the existence of a particular fact must be strictly true, or the policy will not take effect, and this is so whether the

      tiling warranted be material or not. Battles v. York County Mutual Fire Ins. Co. 41 Maine, 208; Loehner v. Home Mutual Ins. Co. 17 Mo. 247.
    The inquiry in the application which relates to the condition of the property as to incumbrances, is material, and if the answer given to the inquiry is false, there is a breach of warranty on the part of the assured, and the company is released from all liability under its policy. Cox v. Ætna Ins. Co. 29 Ind. 586; Davenport v. New England Mutual Fire Ins. Co. 6 Cush. 340; Howard v. New England Mutual Fire Ins. Co. 10 id. 444; Brown v. People’s Mutual Fire Ins. Co. 11 id. 280; Draper v. Charter Oak Fire Ins. Co. 2 Allen, 569; Patten v. M. and F. Mutual Fire Ins. Co. 38 N. H. 338 ; Packard v. Insurance Co. 3 Gray, 334; Town v. Fitchburg Mutual Fire Ins. Co. 7 Allen, 51.
    An incumbrance once proved to have existed is presumed to continue, unless payment, or some other discharge, be either proved or established by circumstances. Best on Evidence,' sees. 42, 405—407; 1 Greenleaf on Evidence, sec. 41; Wharton on Evidence, secs. 1229, 1284; Brown v. King, 5 Metc. 173; Farr v. Payne, 40 Vt. 617; Leport v. Todd, 32 N. J. Law, 129; Bell v. Young, 1 Grant, (Pa.) 175; Murphy v. Orr, 32 Ill. 489; Norton et al. v. Joy, 6 Bradw. 406.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of assumpsit, brought by William Schroeder, against the Trade Insurance Company of Camden, New Jersey, to recover for a loss under a policy of insurance against fire. The trial before the county court, without a jury, resulted in a judgment for the defendant, which was affirmed by the Appellate Court for the First District, and the plaintiff appealed to this court.

Neither the pleadings nor the evidence, at the trial, are embodied in the record, but in lieu thereof there is an agreed statement of the pleadings and facts. It is admitted that the plaintiff filed a proper declaration, and that the defendant pleaded the general issue, and a special plea, setting up a. warranty against incumbrances on the property insured, and its breach. It is also admitted that the defendant, by its policy of insurance dated December 3, 1878, insured certain described property belonging to the plaintiff against loss or damage by fire, in the sum of $500; that the policy contained a provision making a certain application for insurance by the plaintiff to another insurance company, bearing date February 2, 1878, a part of the policy, and a warranty on the part of the assured that said application contained a statement that the property was unincumbered; that on the 11th day of July, 1878, the plaintiff had executed a chattel mortgage on the property to one Thomas Bichter, to secure the plaintiff’s promissory note of that date to mature two years thereafter, and that on the 17th day of December, 1878, the property described in the policy was destroyed by fire.

The provision as to making a certain former application part of the policy, is as follows: “It is hereby agreed that the special survey and application, No. 356,740, of the Royal Canadian Insurance Company, on file in the office of John Naghten, Chicago, Illinois, shall form a part of this policy, and a warranty upon the part of the assured. ” The stipulation shows also this condition in the policy: “If an application, survey, plan or description of the property herein insured is referred to in the policy, such application, survey, plan or description shall be considered a part of the contract, and a warranty by the assured of the conditions, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an over-valuation, or any misrepresentation whatsoever, either in the written application or otherwise, * * * then, and in every other such case, this policy shall be void. ”

The application upon which the warranty sued on is founded, is one “referred to in the policy,” viz., an application made to the Royal Canadian Insurance Company, on February 2, 1878. The policy declares what shall be the effect of referring in the policy to an application, and it is, that such application shall be a part of the contract, and “a warranty by the assured of the conditions, situation or occupancy of the property.” The condition, situation or occupancy of the property at what time ? That is the question here. Is it at the time of making the statement in the application, (February 2, 1878,) or at the date of the policy— December 3, 1878? The assured has certainly made no express representation that on December 3, 1878, the property was unincumbered. All his express representation is in his application dated February 2, 1878. He there and then represented that the property at that time was not incumbered. That representation was true. There was no incumbrance until July 11, 1878. Does the making of that application a part of the policy, and a warranty on the part of the assured, give to the representation made in that application the effect of a representation of the condition of the property at the time of the policy ? Not necessarily so. There is thereby, by such adoption of the former application, a warranty, and it is of the truth of the representation in that application that the property was unincumbered on February 2, 1878. The warranty need not, from the language used, be more than that. That may not, perhaps, meet'the intention of the insurance company. It may have supposed the adoption of that former application was making the representation of the condition of the property at the former time a representation of its condition at the time of issuing the policy. But it is far from certain that that would be carrying out the intention of the assured. He knew there were no untrue representations in the former application, and so might have no hesitancy in making that application a part of the policy, not intending to make, and not thinking that thereby he was making, any representation of the present condition of the property. Had he been asked, on December 3, 1878, (the time of making this policy,) whether there was any incumbrance on the property, he doubtless would have answered there was.

To give the adoption into a policy of an application made at some former time, the effect of a representation as to the present condition of the property insured, it would seem but fair to require that there shall be some language which will suggest'to the mind the idea of representation as to present condition, so that the assured may not, by general language of such adoption, be entrapped into the making of representations which he never designed to make. We are of opinion that the representation relied on here should be taken as a representation only that the property was unincumbered on February 2, 1878, (the date of the application,) and not as a representation that it was unincumbered on December 3,1878, and hence, that there is no breach of warranty in the case. We think this the construction justified by the rule applied to these insurance contracts, where the language used is that of the insurer, of construing the policy most favorably for the insured in case of uncertainty in its terms. Niagara Fire Ins. Co. v. Seammon, 100 Ill. 644.

The decision of the Appellate Court appears to have been on the grounds, first, that the term of the policy was not shown by the record to have continued up to the time of the fire; second, the value of the property was not shown. We incline to a different view on both these points. The stipulation shows that the policy was issued December 3, 1878, and it is true that it is entirely silent as to the term of the insurance. But it does state “that the defendant, by its policy .dated December 3, 1878, insured said property against loss or damage by fire, in the sum of $500.” Loss by fire is shown. This certainly was, literally, a breach, making an apparent cause of action, which would seem to make it incumbent on defendant to show, by way of rebuttal, that the insurance did not cover the loss. That was not shown, we incline to think, by the mere facts that the length of time of the insurance was not mentioned, and that the loss occurred on December 17, 1878,—fourteen days after the date of the policy. The making of the contract of insurance was not a mere idle thing—it had a substantial purpose and meaning. There was .certainly insurance for some time, and if for any period of time, might well be taken to have been for so long a time as fourteen days. Some meaning must be given to the insurance, and it must be regarded, we think, as at least for a reasonable time. There is nothing showing the period of fourteen days to be an unreasonable time. Being insured on December 3, 1878, might raise the presumption of a continuance of the insurance on the 17th of that month, there appearing no circumstance to the contrary, under the principle that when the existence of a particular subject matter or relation has once been proved, its continuance is presumed till proof be given to the contrary.

As to the value of the property destroyed not being shown, it is true that it is not shown in express terms. The description of the property affords ground of inference as to its value. The stipulation gives the description of the property as a two-story frame building, with additions, and an engine and boiler house adjoining, used as a planing mill and sash, door and blind factory, and an engine and boiler and connections, and fixed and movable machinery, shafting, belting, gearing, pulleys and tools, and stock, consisting chiefly of lumber, sash, doors and blinds, situated in the town of Sycamore, etc. We may take judicial notice that there is a value belonging to such property, and that where there'is a right of recovery of damages for the destruction of the property, it is a right to recover something more than nominal damages,— to recover substantial damages. It is to be noted that the stipulation was not prepared for the trial court, hut for the Appellate Court, where there would be no assessment of damages. The cause had been tried in the lower court, and judgment rendered for the defendant, and afterward, and after the appeal had been taken, on coming to make up the bill of exceptions, it recites: “In order to condense the record herein, the following statement of facts and pleadings is agreed upon, ” setting out the same; and the bill of exceptions afterwards states, “and the case is now presented to the Appellate Court, on appeal, on the above statement of facts, and that the court is asked to decide whether or not the county court erred in so finding for the defendant.” If there was a right of recovery, plaintiff should have had judgment for at least nominal damages, and the lower court would have erred in finding for the defendant; and whether the court did err in so finding, is what the parties asked the Appellate Court to decide. Had the Appellate Court decided that the judgment for the defendant was erroneous, it would then have remained to have inquired into and assessed the amount of plaintiff’s damages, upon another trial, after the return of the ease to the county court. Thus it would seem to have been the purpose of the agreed statement to present in the' Appellate Court the question only of mere right of recovery.

For the reasons stated, we are of opinion the judgment of the Appellate Court should be reversed, and the cause remanded, which is accordingly done.

Judgment reversed.

Scholfield and Mulkey, JJ.: We are unable to concur either in the reasoning or the conclusion as announced in the foregoing opinion.


author: Mr. Justice Mulkey

text:
    Eugene L. Brown v. The City of Aurora.

      Filed at Ottawa November 20, 1883.

    1. Appeal—“finding of the facts” by the Appellate Court—what so regarded—and what is a recital of the “facts as found." Section 87 of the Practice act provides, that if, in certain cases mentioned, any final determination of any cause shall be made by the Appellate Court, as the result, wholly or in part, of the “finding of the facts” concerning the matter in controversy, different from the finding of the court from which the cause was brought, it shall be the duty of the Appellate Court to recite in its final order, judgment or decree the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.
    2. The “finding of the facts” contemplated in that section, is the finding of the ultimate fact or facts upon the existence or non-existence of which, as set up in the pleadings in the cause, the rights of the parties depend,—it does not mean that the Appellate Court shall find what was the evidence of these facts, or that it shall find those merely subordinate or evidentiary facts, which, when established, contribute to the establishment of the ultimate fact which must exist in order to sustain the alleged cause of action or defence.
    3. As, in the present case, where a person sought to recover against a city, for personal injuries resulting, as was alleged, from the negligence of the city in respect to the condition of its sidewalks, the Appellate Court found, differently from the finding in the trial court, that the sidewalk was in a reasonably safe condition at the time of the accident; that the plaintiff was aware, at the time, of the slipperiness and all other defects of the walk, and did not exercise that ordinary care that a reasonably prudent man would have exercised under the circumstances; and that the defendant did exercise ordinary care in constructing and maintaining said walk, and was in the due exercise of such care in maintaining said walk at the time of the injury. This was considered a sufficient “finding of the facts, ” within the meaning of the statute. The ultimate fact to be established, to enable the plaintiff to recover, was the negligence of the city, and the finding was as to that fact. As to the several subordinate facts which might be proven, and which, when considered together, as to their effect in establishing that ultimate fact, they need not be specifically found by the court, and consequently, need not be recited in its final judgment.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the circuit court of Kane county; the Hon. C. W. Upton, Judge, presiding.

      Mr. Chas. Wheaton, Mr. A. J. Hopkins, and Mr. N. J. Aldrich, for the plaintiff in error.
    Mr. Dallas M. Clapsaddle, City Attorney, and Mr. R. G. Montony, for the defendant in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Eugene L. Brown, the plaintiff in error, recovered a judgment, in the Kane circuit court, against the city of Aurora, for $6000, on account of injuries received by him in a fall upon one of the sidewalks of that city, charged to have been occasioned by the negligence of the city in not keeping the same in repair. On appeal by the city to the Appellate Court for the Second District, the judgment was reversed, on the ground the evidence did not support the verdict of the jury, and for this reason the Appellate Court declined to remand the cause to the circuit court for another trial. Brown thereupon sued out the present writ of error, and the case is now before us for review.

The facts, as specifically found by the Appellate Court, and recited in the final order in the cause, are as follows:

“That the sidewalk upon which the injury was received was, at the time the said injury was received, reasonably safe, as a sidewalk, for the appellee (plaintiff in error) to pass over it, if he exercised ordinary care; that before and at the time appellee passed over said sidewalk on the occasion of receiving said injury, he was fully aware of the condition as to its slipperiness and all other defects in and of said walk, and at the said time of so passing over the said sidewalk, he, the appellee, did not exercise that ordinary care that a reasonably prudent man would have done under the same circumstances ; and we further find that the appellant did exercise ordinary care in constructing and maintaining said walk, and was in the due exercise of such care in maintaining said walk at the time of said injury. ”

It is virtually conceded by counsel for plaintiff in error that if the foregoing is, within the meaning of the statute, to be regarded as a finding of the facts, it is conclusive of the case in this court, and the judgment of the Appellate Court must necessarily be affirmed. It is urged, however, that the findings of the Appellate Court are mere conclusions upon the facts, rather than the findings of the facts themselves. If by “conclusions upon the facts, ” counsel mean “conclusions of fact, ”—or, in other words, inferences drawn from the subordinate or evidentiary facts,—the statement to that extent may be conceded, and yet it does not at all militate against the conclusiveness of the findings. In all cases the ultimate fact or facts to be established in a suit, and upon which the rights of the parties to it necessarily depend, are, when considered with reference to the facts or evidence by which they are established or proved, but the logical results of the proofs,—or, in other words, mere conclusions of fact. Yet these logical results of the proofs or conclusion of facts, when considered with reference to the basis of the judgment to be rendered in the cause, are properly termed the “facts found, ” or ultimate facts in the ease. The case in hand affords as good an illustration of this as any that could be suggested.

Now, what was the main and ultimate fact which the plaintiff was bound to prove in order to recover ? Manifestly the city’s negligence, as charged in the declaration. How was this to be done ? Not by direct proof, for negligence is not an object of any of the human senses. It, like love, anger, or good faith, is an impalpable entity, which exists in contemplation of mind only. While we daily see acts and conduct from which we may unerringly infer negligence, yet no one ever saw negligence itself. It is always a mere inference or conclusion deducible from some other fact or facts, either witnessed or satisfactorily established. When the Appellate Court, therefore, examined all the subordinate facts bearing upon the question of negligence, it found, as an inference or conclusion from such subordinate facts, that the city was not guilty of the negligence charged, and in doing so it was acting strictly in the discharge of a proper and legitimate function, which it, and not this court, is authorized to perform.

Do counsel wish to be understood as maintaining that the facts which the Appellate Court is required to recite in its final order are nothing but the evidentiary facts,—or, more shortly, the evidence in the cause ? And is it only these facts this court is prohibited from considering ? It is manifest the legislature never could have intended anything of that kind. So far as the mere evidence or subordinate facts are concerned, there can never be any controversy as to what they are when once embodied in a bill of exceptions. The great controversy in all cases is, as to whether these subordinate facts prove the ultimate or issuable facts upon which every case must necessarily turn. If this court is bound to reexamine the issuable facts in every case where it is claimed the Appellate Court has erred in its findings, as is insisted on here, would it not necessarily lead to an examination of every case upon the evidentiary facts also ? For how could the conclusions of fact be passed on without considering the testimony upon which they are based ? It is clear there would he no other way of doing it, and this conclusively shows the fallacy of such a position. If the Appellate Court had no right to find there was, or was not, negligence on the part of the city, what should it have found ? Should it merely have gone on and recited that this witness swore to this fact, and that witness swore to that fact, and so proceeded until everything testified to had been gone over? To have done so would really have been finding nothing, for all that would have been apparent upon a mere reading of the bill of exceptions. The Appellate Court, where it differs from the conclusions reached by the trial court, is required to recite in its final order the facts as found by that court. The expression, “facts as found, necessarily implies the drawing of a conclusion or inference from the evidentiary facts embodied in the bill of exceptions, and this conclusion or inference to be drawn is nothing more than the factum probandum, or ultimate fact or facts, upon which the case depends, and which it was the duty of the Appellate Court to find.

The errors assigned do not question any of the rulings of the circuit court. Nor is it claimed that any error of law has intervened, except that which results from the specific findings of the Appellate Court, and the judgment of reversal founded thereon. As to these matters the action of the Appellate Court is conclusive on this court. If its special findings were warranted by the evidence, its judgment of reversal was manifestly proper, and whether the evidence warranted the special findings is not a matter for review in this court.

The judgment will be affirmed.

Judgment affirmed.


text:
    Walter Upstone v. The People of the State of Illinois.

      Filed at Ottawa November 20, 1883.

    1. Criminal law—drunkenness, or insanity produced by intoxication, as a defence. Temporary insanity produced immediately by intoxication, furnishes no excuse for the commission of a homicide or other crime, but a fixed insanity does. Whether a party committing a crime is under the influence of a fixed insanity, or a temporary one induced immediately by intoxication, is a question of fact for the jury, and their verdict mil not be disturbed unless it is clearly against the evidence.
    2. While it is true there must be a joint union of act and intention, or criminal negligence, to constitute a criminal offence, yet when without intoxication the law will impute to the act a criminal intent,—as, in the case of a wanton killing of another without provocation, voluntary drunkenness is not available to disprove such intent, so as to reduce the crime from murder to manslaughter.
    3. Voluntary intoxication furnishes no excuse for crime committed under its influence, even if the intoxication is so extreme as to make the author of the crime unconscious of what he is doing, or to create a temporary insanity.
    4. Same—evidence of defendant’s previous habits of intoxication. On the trial of a defendant for murder, when insanity is set up in defence, and he is shown to have been intoxicated at the time of the homicide, evidence of his previous intoxication will be properly received from the prosecution, as bearing upon the question of intoxication at the time of the killing, and of the conduct of the defendant while in that state.
    5. Same—restraining violence of a prisoner pending motion for a new trial. After the trial and conviction of a prisoner, upon a charge of murder, upon the hearing of a motion for a new trial, which had been continued to a subsequent term, the prisoner broke out into manifestations of rage and violence towards the officers, and attempted to break away. Thereupon handcuffs were placed upon his wrists to restrain him. It was held, there was no error in thus preserving order and protecting the sheriff and his bailiffs from violence, and that it could not affect the justness of the verdict at the preceding term, nor the sentence following the overruling of the motion for a new trial.
    6. Instructions—slating abstract proposition of law. The giving of an instruction stating an abstract principle of law not applicable in a criminal case, is not error unless the principle stated is erroneous.
    7. Same—construed, as excluding defence of insanity. On the trial of one for murder, insanity being relied on as an' excuse, the court instructed the jury that if the killing had been shown by the evidence, beyond a reasonable doubt, to have been the act of the defendant, the law presumes it murder, provided they further believe, from the evidence, that no circumstances existed excusing or justifying the act, or mitigating it so as to make it manslaughter: Held, that the instruction was not liable to the objection of excluding the defence or excuse of insanity, but on the contrary, it recognized the fact there might be an excuse for the act.
    8. And in the same case, an instruction contained a proviso that if the jury further believed, from the evidence, beyond a reasonable doubt, that the blows were struck with malice aforethought, either express or implied, to find the defendant guilty: Held, that the instruction did' not exclude the defence of insanity, which, if it existed, would show an absence of malice aforethought.
    9. Evidence—in rebuttal—time of admission. The time of receiving evidence is so much a matter of discretion with the court trying a case, that it will not be a ground for reversing a judgment that evidence is allowed in rebuttal which in strictness is not properly so receivable.

      10. Same—opinions of persons not experts, as to sanity. On the trial of one for crime, the opinions of neighbors and acquaintances of the defendant, who are not experts, may be given as to his sanity or insanity, founded on their actual observations.
    Writ of Error to the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. John L. Pratt, for the plaintiff in error:
    The felonious intent is essential to a conviction. Commonwealth v. McKie, 1 Gray, 62; Wharton on Homicide, secs. 670, 687; Rev. Stat. chap. 38, see. 140; Ray’s Medical Jurisprudence of Insanity, sec. 514; Ogletree v. State, 28 Ala. 693; Mooney v. State, 38 id. 420.
    While drunkenness does not excuse or palliate any offence, it may produce such a state of mind as to render the party incapable of forming or having any criminal intent. Mooney v. State, 33 Ala. 420; Wharton on Crim. Law, (4th ed.) secs. 32, 41, 43; Pigman v. State, 14 Ohio, 555; State v. Garvey, 11 Minn. 154.
    The quo animus, or state of mind under which the offence was committed, is always a legitimate subject of inquiry. Bishop on Crim. Law, sec. 227; 2 id. sec. 616; Pond v. People, 8 Mich. 150; Burrill on Crim. Evidence, 282; Maher v. People, 11 Mich. 215.
    A reasonable doubt of the sanity of the accused must acquit. Hopps v. People, 31 Ill. 392.
    Non-professional witnesses will not be permitted to give mere opinions, disconnected from the facts on which they are based. 1 Wharton & Stille, sec. 272; Real v. People, 42 N. Y. 270; Wharton on Crim. Law, (8th ed.) sec. 417.
    As to the effect of intoxication in disabling the mind from a purpose, and having an influence on free volition, see Galliher v. Commonwealth, 2 Duv. 164; Swan v. State, 4 Humph. 136; Smith v. Commonwealth, 1 Duv. 225; State v. Schingen,
      20 Wis. 74; Mooney v. State, 33 Ala. 420; Haile v. State, 11 Humph. 154.
    Mr. James McCartney, Attorney General, Mr. Charles A. Works, State’s Attorney, Mr. Charles E. Fuller, and Messrs. Carnes & Denton, for the People:
    Where, without intoxication, the law would impute to the act a criminal intent, as in the case of wanton killing, without provocation, drunkenness is not available to disprove such intent. Rafferty v. People, 66 Ill. 124.
    Wrongful intent to drink coalesces with the wrongful act while drunk. 1 Bishop on Crim. Law, secs. 397, 400, 401; 1 Wharton on Crim. Law, sees. 49-55; United States v. McGhee, 1 Curtis, 1; Flannigan v. People, 86 N. Y. 554.
    The testimony of persons not experts, as to insanity, is proper. Rutherford v. Morris et al. 77 Ill. 397.
    The instructions complained of were correct. The People were not bound in their instructions to anticipate and exclude defences. Mitchell v. Milholland, 106 Ill. 175; Logg v. People, 92 id. 598.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The grand jury of De Kalb county found an indictment against Walter Upstone for the murder of one Peter Melson. A change of venue was taken by the defendant to Winnebago county, and a trial had in the circuit court of that county, at its January term, 1883, resulting in a verdict of guilty, and fixing the punishment at imprisonment in the penitentiary for seventeen years. A motion for a new trial was made and overruled, and sentence was passed upon the defendant in accordance with the verdict. It is insisted that the evidence was insufficient to sustain the verdict.

The homicide occurred under these circumstances: It took place on Sunday, February 5, 1882, in the blacksmith shop of the defendant, situated on the main street and at the most public place in the village of Fielding, in DeKalb county. About two o’clock in the afternoon of that day one of the witnesses, George Clark, passing along the street on horseback, saw the defendant standing in his blacksmith shop door swinging a hammer and singing, and as the witness approached near, the defendant said to him: “George, look here. ” The defendant then went inside the shop, and witness saw him strike somebody on the floor twice with a scoop shovel, and afterwards twice with a sledge-hammer. He then told witness to go and tell some one there was a dead man there. The witness went and gave information of what he had seen, and on his return a crowd had collected, and Peter Melson was found lying on the floor badly bruised, and his skull fractured. The killing was undisputed. The theory of the defence was, that the defendant was insane; that of the prosecution, that he was intoxicated.

It was in evidence, that the defendant and the deceased were intimate friends; that on the day before (Saturday) they went to Monroe, five miles distant, to a pigeon-shoot; that about one o’clock on the Sunday of the homicide, a witness saw the defendant in his yard, and he called to the witness to come over, who did so, and went into defendant’s house; defendant mixed up a drink for them both to take, wdiick was alcohol, as witness thought; witness remarked that his was too warm; defendant replied, perhaps it was not strong enough for him, and put in some more liquor, and then it was too strong; witness could not drink it at all; defendant drank his. Defendant said, “Dutch Pete is in the shop taking a little nap, ” and he would take witness’ glass out and let him drink it; he took it out, and witness went with him to the shop; Melson was there asleep, as the witness judged, his head and shoulders leaning against the shop, and partially sitting on the vice-bench; defendant set the glass on the bench and went up and talked to Melson, pulled him a little, and Melson partially fell, and settled down on the floor among a lot of rubbish, “so drunk he couldn’t stand. ” Witness did not hear him say a word; saw no bruises on him then; witness helped him up and put him on the clean floor, and defendant doubled up his cloth apron and put it under Melson’s head; witness then left them; the glass was left sitting there. About three-quarters of an hour after, the alarm was given that defendant had murdered somebody. Defendant had been seen on that day standing in the doorway of his shop drinking something out of a tumbler, and then stepping back in the shop. An empty quart bottle was found in the .stove, which had contained what the witness thought was alcohol. On Thursday or Friday before, defendant, together with two others, had purchased a gallon of alcohol, one paying for a half gallon, and defendant and the other for one-half, which they divided between them.

There was in evidence a conversation had with defendant some two or more years before, when he said that if he let liquor alone he was all right, and that when he drank liquor it made him “crazy wild.” The concurrent testimony of the many witnesses present on the occasion of the homicide was, that the defendant was intoxicated. The manifestations of conduct on the part of the defendant at the time were of a very strange, wild and irrational character. Very much evidence was given as to insanity in members of the family; that his mother, a sister and three brothers were insane, the mother, sister and one brother dying in insane hospitals; that an aunt of the mother was insane, and two of her sisters died in insane hospitals. Much testimony of neighbors and acquaintances was given,—on one side, that defendant was insane, on the other side, that he was sane. The superintendent of the insane asylum at Elgin, a medical man, gave it as his opinion, as an expert, that from the testimony, taking it to be true, defendant was insane. This was before the rebutting testimony of the prosecution.

The question in the case was, whether there was but a temporary insanity, produced immediately by intoxication, or fixed insanity. If it was the former, it furnishes no excuse. Questions of this kind are peculiarly questions for a jury to determine, and upon settled principle this court should not interfere to disturb the verdict, unless it is clearly contrary to the evidence. We can not say that is so in this case.

Various rulings of the court were excepted to, as, that evidence was received in rebuttal improperly; that opinions as to defendant’s sanity were admitted, and evidence of defendant’s previous habits of intoxication. The time of receiving evidence is much in a court’s discretion, and it would not be ground for reversing a judgment that evidence was permitted to be introduced in rebuttal which in strictness was not properly so receivable. Evidence was given, on both sides, of opinions of defendant’s neighbors and acquaintances as to his sanity, founded upon their own knowledge. Exception is taken to such testimony admitted on the part of the People. We are of opinion that witnesses who are not experts may give their opinions, founded upon observation, on the question of sanity. Wharton on Crim. Evidence, sec. 417; 2 Ired. 78, Clary v. Clary; Wharton & Stille’s Med. Jur. sec. 272; dissenting opinion of Doe, J., in State v. Pike, 49 N. H. 408, where the authorities are extensively collated; Hardy v. Merrill, 56 N. H. 227; Roe v. Taylor, 45 Ill. 485; Rutherford v. Morris, 77 Ill. 397; Carpenter v. Calvert, 83 id. 63. Evidence of previous intoxication on the part of defendant was properly enough admitted, as bearing upon the question of intoxication at the time of the homicide, and of the conduct of defendant when in that state.

The second instruction given to the jury, for the People, was:

“That if the killing of the person mentioned in the indictment has been satisfactorily shown by the evidence, beyond all reasonable doubt, to have been the act of the defendant, then the law presumes it to have been murder, provided the jury further believe, from the evidence, beyond a reasonable doubt, that no circumstances existed excusing or justifying the act, or mitigating it so as to make it manslaughter. ”

It is objected to this, that it tells the jury they must convict the defendant of murder or manslaughter. We do not so read the instruction. It left the jury free to acquit, if there were circumstances which excused or justified the act. It is further said the instruction ignores the question of the insanity of the defendant. We do not think so. The instruction recognizes there might be an excuse for the act, and instructions for the defendant abundantly informed the jury that insanity would be a defence, which the jury would take to be an excuse. It does not matter what may be the technical meaning of excusable, but how the jury would understand it, and whatever was a defence they would understand as matter of excuse.

It is objected to the third instruction, that it states an abstract principle of law not applicable to the case. This would not be error unless the principle stated were erroneous.

It is objected to the fourth instruction, that it substantially instructed the jury to find the defendant guilty, regardless of the question of his mental condition at the time of the homicide. The question of mental condition was covered by the proviso to the instruction, “provided you further believe, from the evidence, beyond a reasonable doubt, that the blows were struck with malice aforethought, either expressed or implied. ” If there was the insanity which was claimed, then there would be the absence of malice aforethought.

The following further instructions were given on behalf of the People:

“7. Although it is the law in this State that a criminal offence consists in a violation of a public law, in the commission of which there must be a union or joint operation of act and intention, or criminal negligence, yet where, without intoxication, the law will impute to the act a criminal intent, as in the case of wanton killing without provocation, voluntary drunkenness is not available to disprove such intent.
“8. That if you believe, from the evidence, beyond a reasonable doubt, that the defendant, when voluntarily intoxicated, committed the' homicide charged in the indictment, under such circumstances as would have constituted such an act, by one not intoxicated, murder, then you are instructed that such intoxication would not reduce the crime of the defendant from murder to manslaughter, nor would such intoxication be any excuse or defence to the act.
“9. The court further instructs you, that if you believe, from the evidence, beyond a reasonable doubt, each of the following propositions, to-wit: that at about two hours before the commission of the alleged, homicide defendant was sane, and had the power to abstain from drinking alcohol; that defendant then knew that the drinking of alcohol by him would have the effect to render him insane or crazy; that defendant, so knowing the effect of alcohol upon him, and being sane, and having the po(wer to abstain from taking alcohol, did then and there voluntarily drink alcohol; that the alcohol so drank by the defendant then and there made him insane or crazy; that while insane or crazy from the effects of such alcohol defendant committed the act charged in the indictment, at the time and place, and in the manner and form, therein charged,—then you should find defendant guilty. ”

The same criticism is made with respect to these first two as before,—that they ignore the prisoner’s defence. There clearly is no foundation for saying this as to the eighth, and as to the seventh, that was only laying down the abstract principle of law as to voluntary drunkenness being an excuse for crime; and in doing that, merely, it was not necessary to incumber the instruction with any exception of the defence that was made for the prisoner. Mitchell v. Milholland, 106 Ill. 176; Logg v. The People, 92 id. 598.

The legal principle asserted in these instructions is disputed. The principle is sustained by the decisions of this court, and is the well settled doctrine of the common law. (Rafferty v. The People, 66 Ill. 124; McIntyre v. The People, 38 id. 514; The People v. Rogers, 18 N. Y. 9; United States v. McGhee, 1 Curtis, 1; Flanigan v. The People, 86 N. Y. 554.) In Bishop on Crim. Law, sec. 400, the author lays it down: “When a man voluntarily becomes drunk, there is the wrongful intent, and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act while drunk, and for this combination of act and intention he is liable criminally. It is, therefore, a legal doctrine, applicable in ordinary cases, that voluntary intoxication furnishes no excuse for crime committed under its influence. It is so, even when the intoxication is so extreme as to make a person unconscious of what he is doing, or to create a temporary insanity. ” Our statute declares that “drunkenness shall not be an excuse for any crime or misdemeanor. ”

We do not think the last above instruction is objectionable in the respect, as claimed, of its partial recital of the evidence, nor in the respect that there is no basis in the evidence for the propositions stated. There was evidence of the defendant’s acts and conduct about an hour before the homicide, affording ground of inference as to his mental state about two hours before. As to his power to abstain from drinking alcohol, there was evidence of his having once abstained for the period of about a year, after signing a pledge not to drink; and as to whether the alcohol drank by the defendant made him insane or crazy, his conduct at the time, and what he had done shortly before, were in evidence for the jury to judge from, as well as his own prior statement “that when he drank liquor it made him crazy wild.”

We perceive no error in refusing or modifying instructions asked by the defendant. The jury were instructed, on the part of the defendant, most fully and most favorably for him upon the subject of insanity as a defence, in all aspects bearing upon the case.

At the next term after the verdict the defendant was brought into open court, when the motion for a new trial, made at the previous term, was disposed of, and as the court was about to pass sentence, the prisoner broke out into manifestations of violence, and had a struggle with the officers to break away from them, and was attempting to commit acts of violence upon them, whereupon they placed a pair of handcuffs on his wrists, and he ceased his struggles. At this treatment defendant’s counsel made objection, but the court overruled the objection, and suffered what had been done, deeming it necessary, to protect the sheriff and his bailiffs from the violence of defendant, and for the preservation of order, in court. This is alleged as error. What was done could have had no influence in the finding of the verdict the term before, nor upon • the sentence, it following as a consequence upon the verdict and the overruling of the motion for a new trial. It did not affect the justness of the verdict or the sentence, and we fail to see why it should be any ground for the reversal of the judgment.

Finding no material error in the record, the judgment must-be affirmed.

Judgment affirmed.