text:
    William Rohn v. Ida Rohn, Adm’x, etc.
    1. Estoppel — Of an Administrator by Acts in a Private Capacity.— One who brings a suit entirely in a representative capacity, as the person appointed by a, probate court to administer, upon the estate of a deceased person, is not estopped as such representative by anything he may have done as an individual unless the appointment relates back to the time of the death of such person and validates all acts done by him prior to his appointment in the interest of and for the benefit of the estate which he is administering.
    2. Administration of Estates — Dufy of One Acting De Son Tort.— Whatever is honestly done by one acting in the character of an executor de sun tort, and not contrary to law, is binding between the parties, and a settlement made in good faith with such an executor is valid.
    3. Same — Executor De Son Tort Not Protected by Taking Out Letters of Administration. — A person who is sued as an executor de son tort can not defeat the action by taking out letters of administration pending the suit, but he may render legitimate all his acts ah initio.

    4. Same — Servants of an Executor De Son Tort. — A person, as the mere servant of another, who is acting as an executor de son tort, can not be held responsible as such executor.
    5. Executor De Son Tort — Duties, etc. — A person acting as executor de son tort is bound to exercise such diligence in regard to the estate he is so representing as prudent men ordinarily bestow upon their own affairs.

      Trespass on the Case, for the conversion of the effects of a deceased person. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Mr. Presiding Justice Freeman dissenting.
    Opinion filed November 26, 1901.
    Statement. — This was an action of trespass on the case, brought by Ida Rohn as administratrix of the estate of her husband, William Rohn, Jr., deceased, who died October 10, 1893. Letters of administration were issued to plaintiff January 26, 1897, and this suit was begun January 19,1899. The defendant was the father of the deceased. The deceased left a widow and two children and $11,000 wrorth of property, and no debts.
    The first count of the amended declaration alleges that defendant intermeddled with the affairs of deceased and acted as executor de son tort of the estate, in that he on the 17th day of October, 1893, extended the time of payment of an indebtedness of $1,500 of George Wildner to said estate for a period of three years, and, at the expiration of said period, said Wildner was solvent, and he might, by the exercise of due care and diligence, have collected said sum of money from said Wildner, but negligently did not collect said indebtedness, but negligently permitted the same to stand uncollected; and afterward the said Wildner became insolvent and said defendant was unable to collect said money, and plaintiff, by reason of said negligence of defendant, has been unable to collect the same or any part thereof, and defendant, though often requested, has refused to pay plaintiff said sum of $1,500; further alleges that, had defendant exercised due care and diligence at any time after the death of deceased and up to and including the maturity of said extended period of three years for the collection of said sum, said money could have been collected by defendant from said Wildner.
    The third count alleges that shortly prior to his decease, William Rohn, Jr., had sold to Wildner his partnership interest in a firm consisting of William Rohn, Jr., and said Wildner, for $8,500; that said $8,500 had not been paid by Wildner to said William Rohn, Jr., at the time of his decease; that defendant intermeddled with the affairs of said deceased and acted as executor de son tort of deceased’s estate; that, prior to his decease, William Rohn, Jr., had drawn up a bill of sale of his said interest in said partnership business to Wildner for the consideration of $8,500, which said bill of sale had not been delivered at the time of his death; that defendant, acting as executor de son tort, negligently delivered to Wildner said bill of sale without collecting from him $1,500 of the consideration of $8,500 expressed in .said bill of sale; that said $1,500 could have been collected by defendant had he exercised due care and diligence; that Wildner has since become insolvent, and plaintiff has been unable to collect the same or any part thereof; that by reason thereof said $1,500 and interest thereon has been lost to the estate of William Rohn, Jr., deceased.
    Upon issue joined the cause was submitted to a jury who returned a verdict of $1,762.50 for the plaintiff, upon which there was judgment, from which the defendant therein presents this appeal.
    Louis A. Heile, attorney for appellant.
    Christensen & Heizer, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Upon the trial it appeared that William Rohn, Jr., being aware that he was about to die, consulted with Mr. Louis Heile, Mr. Adolph Heile and his father, concerning a proper and judicious disposition of his affairs; that Mr. William Rohn, Jr., objected much to having his estate probated, saying that it would make a great deal of trouble, especially with a partnership which he then had with one George Wildner; that Mrs. Ida Rohn was present at this conversation in which Mr. Rohn told Mr. Adolph Heile that Wildner, his partner, was willing to buy him out at the sum of $8,500, which had substantially been agreed upon between them; that Mr. Adolph Heile advised them that it would be a good thing for him to dispose of his interest in the business during Ms lifetime. William Bohn, Jr., at that time said he wanted to leave all his effects in the care of his father, in whom he had perfect confidence; that at that time the amount Hr. William Bohn would have in case he made the contemplated sale was figured out and amounted to $11,000. As to this he said: “Mv wife is the next to me and I want to secure to her $5,000 of that and to each of my two children $3,000;” that within a week or two after the death of William Bohn, Jr.-, William Bohn, his father, Ida Bohn and a friend of hers by the name of Schultz, came to Mr. Heile’s office and Ida Bohn said that her husband was dead and it would be better to get things into proper shape in accordance with the wish of her husband, expressed by him when he was last at Mr. Heile’s office, and she wanted Mr. Heile to draw up some kind of a document to show that she was to have $5,000, and each of the children $3,000, of her husband’s estate. Whereupon Mr. Heile prepared a declaration of trust from memoranda submitted to him at that time. This declaration of trust was afterward signed by William Bohn, the father of William Bohn, Jr. This declaration acknowledges that he has received from his son, William Bohn, Jr., deceased, $11,000, in notes partly secured and partly unsecured, and that he holds the same in trust for Ida Bohn and her two children, $5,000 for her and $3,000 for each of the children; that be agrees to collect interest on all and pay same to Ida Bohn during the minority of the children and agrees to turn over to Ida Bohn in notes her $5,000 upon.demand, and to turnover $3,000 to each of the children when they become of age, and agrees to collect said notes and to re-invest the proceeds according to his best judgment, and directs his administrators, executors and heirs to turn over , what securities he may have at the time of his death for said minors to some other person to be named as trustee by Ida Bohn.

Upon this declaration of trust there is indorsed as follows :

“ I have this day received as administratrix of the estate of William Bohn, deceased, for the property described herein, the amount of $9,500 in cash and all interest thereon to date.
Chicago, August 13, 1897.
Ida Bohn,
Individually and as administratrix of the estate of William Bohn, Jr., deceased.”

It also appeared upon the trial that some weeks prior to William Bohn, Jr’s., death, it had been agreed between him and his partner, Wildner, that a sale of his partnership interest should be made to Wildner for $8,500; that a bill of sale of such partnership interest had been drawn up, signed by Wm. Bohn, Jr., and left with his wife, who after his death gave it to William Bohn for delivery to Wildner, which delivery William Bohn made; that Wildner, to make up the $8,500 agreed to be paid by him, as had been arranged before the death of William Bohn, Jr., gave two $800 mortgages and $400 in cash, making $2,000, which Wildner, without assistance, was able to raise; that Wildner’s mother loaned him $2,000, receiving his note therefor, and Budolph Bohn, a brother of William Bohn, also loaned Wildner $2,000, taking his note therefor, so that Wildner was able, as he did after the death of William Bohn, Jr., and in accordance with the agreement made with him, to turn over in payment, mortgages amounting to $1,600, and $4,400 in cash. For the balance he gave two notes, one for $1,000 maturing in one year and one for $1,500 maturing in three years. These were judgment notes, dated October 17,1893, payable to the order of Mrs. William Bohn, Jr., with interest at seven per cent per annum.

Wildner, about 1896, came to be owing “Budolph Bohn a good deal of money, and to secure the same gave to Budolph Bohn a chattel mortgage upon his stock of goods and material, for $3,000.” The $1,000 note given by Wildner, which matured October 17, 1895, was paid. Wildner not having paid the $2,000 he owed to his mother, she took judgment against him therefor, whereupon Budolph Bohn paid his mother the amount of the same and took Wildner’s property upon his chattel mortgage.

Wildner has, since the foreclosure of the chattel mortgage, been, it appeared, financially irresponsible, working for a salary of $50 per month.

Some time after the entry of judgment against Wildner and the foreclosure of the chattel mortgage given by him, letters of administration were issued to Ida Eohn upon the estate of her husband, William Eohn, Jr., and this suit was begun January 19, 1899.

Appellant urges that appellee is estopped from insisting that he is an executor de son tort because that all he did in the way of taking possession of any of the estate left by his son was at her request. If this suit were prosecuted by Ida Eohn in her own right, such insistence might be well taken.

The suit is not by Ida Eohn, for her own benefit, but entirely in a representative capacity, as the person appointed by the Probate Court to administer upon the estate of her deceased husband; and as such representative she is not estopped by anything that she may have done as an individual, unless her appointment relates back to the time of the death of William Eohn, Jr., and validated all acts by her done prior to her appointment, that were in the interest of and for the benefit of the estate of which she is now administratrix.

It appeared upon the trial that the note for $1,500, out of which this suit has grown, as indeed all of the money, notes and mortgages given by Wildner upon his purchase of the partnership interest, were not given until after the death of William Eohn, Jr., although in pursuance of the agreement previously made and in accordance with the bill of sale, signed by William Eohn, Jr., left with his wife, Ida, and by her after his death handed to William Eohn for delivery to Wildner upon reception from him of the notes, money and mortgages, which he was to and did give therefor.

The situation existing at the time of the death of William Eohn, Jr., was that while an agreement of sale had been made, it had not been carried out. Eone of the written documents to be transferred had actually been delivered. Wildner, as the surviving partner, a person of very limited means, was by law entitled to administer upon the partnership effects. The position was one in which it is evident it "was for the interest of the estate of William Rohn, Jr., that the contemplated -sale should be carried out as speedily as possible.

That an administration of the partnership assets by Wildner, or any other person, would have realized for the estate of William Rohn, Jr., §8,500, there is no evidence and is quite improbable. What, therefore. Ida Rohn did in the way of handing over the bill of sale, signed by her husband, although an intermeddling with the estate and constituting her an executrix de son tort, was undoubtedly in the interest of and for the'benefit of the estate. What she did in the way of having a declaration of trust drawn up and signed by William Rohn was ineffectual to determine the interest of her children or her own in said estate. The law fixed that and no act of either appellant or appellee could change the disposition which the law made.

In Riley v. Loughrey, Administrator, 22 Ill. 99, it is said substantially :

“Whatever is honestly done by one acting in the character of an executor do son tort and not contrary to law, is binding between the parties. A settlement made in good faith with such an executor is valid.”

And in Camp v. Elliott & Brewster, 38 Ill. App. 337, the court sa3rs :

“The acts of Camp before he was appointed administrator would be the acts of an executor do son tort and would be held good in so far as they would have been had he at the time been actually the administrator of the estate.”

In taking from Wildner the notes, money and mortgages given b3T him, appellant acted by the direction of appellee, who was then entitled to take out letters, and to whom letters of administration were, some three years thereafter, issued.

In Vaughan v. Browne, Str. 1106, the Court of King’s Bench laid down the doctrine that a person who is sued as an executor do son tort can not defeat the suit by taking out letters of administration, pending the suit, because such suit was well commenced, yet such an administration will legitimate all acts db initio. „ A report of this case will'be found in Andrews, 328, and it was approved in Curtis v. Vernon, 3 Term Rep. 587.

This doctrine is also approved in Rattoon v. Overacker, Executor, 8 Johnson, 127; also in Shillaber v. Wyman, 15 Mass. 322, and in Magner v. Ryan et al., 19 Mo. 197.

One who acts as the mere servant of another who is an executor de son tort, can not be held. If appellant had done nothing more than to follow the directions of Ida Rohn when she assumed to intermeddle with the property of the estate, we are not prepared to hold that a. recovery could have been had against him in the present action by her as administratrix. The evidence shows that he did niore. He and she, doubtless with the best intentions, but in disregard of the statutory law of this State, assumed to create a trust over the effects of the estate, and he thereby undertook to collect the notes so intrusted to him. Such being the case, we think that as the court below instructed, he was bound to exercise such diligence in regard to the note for $1,500, as prudent men ordinarily bestow upon their own affairs. It was a judgment note, and notwithstanding the chattel mortgage then existing upon the goods of Wildner, he might have had judgment entered thereon.

It may well be said, as is urged, that the note being payable to Ida Rohn, it was as much her duty to see that proper steps were taken to enforce its payment as his, and that, save by her consent, no judgment could be obtained thereon.

We are not, however, in this case dealing with the negligence of Ida Rohn, but rather with the rights of the estate of William Rohn, Jr., and the conduct of appellant.

We think the evidence such that the jury had a right to find that appellant did not, in respect to the collection of this note, exercise such diligence as prudent men ordinarily bestow upon their affairs, and this, although, when it became due, Wildner asked him to wait until after the election and he would try and get a partner and make a stock company and would see that the note was protected.

The judgment of the Superior Court is affirmed.

Mr. Presiding Justice Freeman dissenting.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    City of Chicago, William D. Kerfoot, Comptroller, et al., v. People, etc., ex rel., etc., et al.
    1. Mandamus — Notice to Interested Persons. —When, after the filing of a petition for a writ of mandamus, it appears that any person other than the original defendant has or claims to have any right or interest in the subject-matter of the action, such person may be made a defendant and summoned to appear, plead, answer or demur in the same manner as if he had been made a defendant to the original petition.
    8. Assignment — Of Salaries by Municipal Officers. — The doctrine is well settled that a municipal officer can not assign his unearned salary, and his undertaking to do so is but an undertaking, unenforcible and of no validity. The law prohibits an assignment of a salary by indirection or to be effected by having the official appoint an attorney authorized to receive the salary and turn it over to an assignee.
    3. Municipal Corporations — Purpose of Their Existence. — A municipal corporation exists for the public welfare only, and it can not be forced into a position by which its duty to its officials in respect to their salaries shall be, not to pay them in accordance with their lawful right, but to pay debts which they may be owing to creditors, or their stipend to those to whom such officers may have assigned it.
    4. Sam® — Effects of Judgments Against. — A judgment against a municipal corporation is in effect a mere adjudication of a claim. It does not bring the claimant any money; he can not have an execution issued upon it and levy it upon the property of the corporation. His only right is to sue out a writ of mandamus to compel its payment.
    Mandamus. — Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.
    Affirmed.
    Opinion filed November 26, 1901.
    ICraus, Alsciiuler & Holden; Moran, Mayer & Meyer; Charles M. Walker, William Howard Fitzgerald and Henry E. Mason, attorneys for appellants.

      L. B. Lang worthy and C. A. Williams, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

The relator, John D. Connell, a policeman of the city of Chicago, sued out a writ of mandamus against the city of Chicago, William D. Ilerfoot, as comptroller, and Adam Ortseifen, as treasurer.

In his petition the relator asserts that pay checks had been duly issued by the proper officers of the city of Chicago to pay him his salary as a policeman for the months of June, July and August, 1900, but that the respondents, Ilerfoot and Ortseifen, wrongfully refused to deliver the said checks to the relator. The petition states that one H. Moss claims some interest in the salary and check of the relator for August, 1900, which claim is declared to be without foundation.

The answer of the comptroller sets up the notice by the appellant Panush of an assignment to him of the June salary claimed by the relator and that the refusal to deliver the check for said salary was in consequence of said notice.

The answer of Kerfoot shows that on August 18, 1900, the relator recovered a judgment against the city of Chicago for the June salary. In the replication to this answer the recovery of said judgment is admitted.

The answer of the treasurer sets up that he had received a notice of an assignment to H. Moss of the August salary and by reason thereof had refused to pay the August salary to the relator.

There was no issue and no judgment as to the September salary, which was averred to have been assigned to one Hubbell, as to whom the petition was dismissed.

On October 11th, on motion of the respondents, Panush and Moss were made parties defendant and it was ordered that a writ of summons upon the petition be issued against them.

Thereafter an order of default was entered against Panush and thereafter the demurrer of Moss to an amended. petition was overruled and he was ordered to answer in three days, and for want of answer his default was taken on October 23d. A jury was impaneled, who returned a verdict for the relator on October 26th. The original respondents, H. Moss and Morris Panush, prosecute this appeal.

Panush and Moss contend that they were improperly made parties to the proceeding.

Section 7 of the statute concerning mandamus proceedings provides that if, after the filing of a petition of mandamus, any person, other than the original defendant, shall appear to the court to have or claim any right or interest in the subject-matter, such person may be made a defendant, and may be summoned and appear and plead, answer and demur in the same manner as if he had been made defendant to the original petition.

It is also contended by appellants that the- petition does not present a case properly calling for relief upon mandamus and that upon the issues joined no relief should have been granted.

It is also claimed by Panush that the judgment obtained by the relator for his salary for the month of June, claimed by Panush, precludes the forming of any issue in this proceeding as to the right of Panush to such salary.

Appellants Panush and Moss urge that the question under consideration is not only whether the city could refuse to recognize the assignments of salary made by the relator on the credit of which he had received money, but whether the relator, in view of said assignments, is entitled to a writ of mandamus to compel the payment to him of that which he had assigned to others. And they quote from Spelling on Extraordinary Legal Kemedies, section 1380, in which it is said that “the relator in such a proceeding must come into court with clean hands.”

In this case the question of whether the relator, as between him and his assignees, is equitably entitled to the salary on account of which he has sued out a writ of mandamus, is not involved. The rule as to non-assignability of the unearned salary of public officers does not rest at all upon equitable considerations, as between the official and his assignees, but upon grounds of public policy.

The doctrine is well settled that a municipal officer can not assign his unearned salary. His undertaking so to do is but an undertaking, unenforcible and of no validity. The law also prohibits assignments of salary being had by indirection or effected by having the official appoint an attorney authorized to receive the salary and turn the same over to an assignee.

The performance of public service is secured by protecting those engaged in performing public duties, and it is not upon the ground of their private interests, but upon the necessity of securing an efficient public service, by seeing to it that the funds provided for the maintenance of government officials should be received by them at such periods as the law has appointed for their payment.

If assignments of the salaries of public officers were permitted, then the assignees would be entitled to receive the salaries directly, and thus to take the place of the assignors in respect to the emoluments, leaving the duties to be discharged by said officers, a barren charge, to be borne by the assignees. Such a condition of affairs would inevitably produce results disastrous to the efficiency of the public service.

In this case, with the private equities and good faith between the relator and those to whom he has assigned his salary, the court has nothing to do.

The position of the relator is sustained and the city officers are commanded to give to him the checks, and the money to wrhich he is entitled, not because it commends his conduct toward the assignees from whom he has obtained money, or holds that' he ought not to pay them as he has promised, but because the public interests are such that the assignment by a public officer of his unearned salary can not be permitted or treated by the courts, otherwise than as void.

It would be in the highest degree harmful to the public that municipal corporations should be permitted to be turned into agencies through which the collection of private debts might be enforced.

A municipal corporation exists for the public welfare only, and it -can not be forced into a position by which its duty as to its officials in respect to their salaries shall be, not to pay them in accordance with their lawful right, but to pay the debts which they may be owing to creditors, or their stipend to those to whom they might have assigned it. Bliss v. Lawrence, 58 N. Y. 442; Schwenk v. Wyckoff, 46 N. J. Equity, 560; Am. & Eng. Ency. of Law (2d Ed.), Vol. 2, p. 1033; King v. Hawkins, 16 Pac. Rep. 434; Merwin v. City of Chicago, 45 Ill. 133; Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580; State v. Williamson, 118 Mo. 146; People v. Omaha, 2 Neb. 169; Wallace v. Lawyer, 54 Ind. 501; Hightower v. Slayton, 54 Ga. 108; Schloss v. Hewlett, 81 Ala. 266; Johnson v. Pace, 78 Ill. 143.

It is urged that the relator, having obtained a judgment against the city for his June salary, can not maintain, as to it, this action. The judgment had by the relator is in effect a mere adjudication of his claim. It does not bring him any money; he can not, upon it, take out execution and levy upon the property of the city. His only right is to sue out a writ of mandamus to compel the city to pay such judgment.

It is also urged as to the June salary that the assignment of it was not made until after it had been earned; that is to say, that the power of attorney to collect the unearned salary of the relator having been made, the particular salary was not designated, but left blank; and that “ June, 1900,” thus making the power of attorney applicable to the salary of that month, was not inserted until June 29. This was but an attempt to do by indirection what the law prohibits. The power of attorney, though irrevocable in terms, does not amount to an assignment when no assignable interests exist at the time the power is made. Lehigh Valley R. Co. v. Woodring, 116 Pa. St. 513-517.

While it is true that the writ of mandamus will not be awarded unless the relator shows a clear legal right to have the thing sought out to be done and in the manner asked, (Swigert v. County of Hamilton, 130 Ill. 549,) we regard the case of the relator as being within the rule. That he had earned the salary and that payment therefor was past due was undisputed. The only pretense for not paying him were the unlawful claims thereto set up by persons to whom he had made, in form, assignments, which pretended assignments were and are void and of no effect.

The judgment of the Circuit Court is affirmed.


author: TV!re.. Justice Shepard

text:
    Joseph H. Strong v. Lu J. Smith.
    1. Promises — Made by an Attorney — Sufficiency of Proof. — Where a suit pending between two parties was dismissed and the plaintiff subsequently brought another suit, upon a promise which she alleged was made to her by the attorney of the defendant in consideration of the dismissal of the suit, although the evidence failed to show any express authority from the defendant to his attorney to make the promise, but it was shown that he and his attorney had a conversation about what he was willing to do in case such suit was dismissed, and the evidence showed plainly that the suit was dismissed under the belief that the defendant was to perform the promise made by his attorney, as there were no instructions given to the jury, they were left at liberty to draw the inference that the attorney had express authority to make the promise.
    Assumpsit. — Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Statement. — This was a suit in assumpsit brought in the Saperiqr Court of Cook County by Lu J. Smith, plaintiff, against Joseph H. Strong, defendant. The usual common counts were filed as a declaration, including one special count. In the special count it was declared that there had ■been some differences arising between the plaintiff and-defendant in regard to the purchase of a certain piece of real estate, and that a compromise had been effected wherein and whereby it was agreed that the defendant should pay the plaintiff in settlement the sum of five hundred dollars. Upon the trial of the case the whole case was presented upon the special count, namely, that an agreement had been entered into for a full settlement by which the defendant agreed to pay plaintiff the sum of five hundred dollars.
    H. C. Benhett, attorney for appellant; Crews & Crews, of counsel.
    Clark Yarnum, attorney for appellee.
   TV!re.. Justice Shepard

delivered the opinion of the court.

The facts shown in evidence were that the appellee agreed with the appellant to furnish part of the purchase price of certain lots of land, she to have a one-half interest therein, and her daughter, the wife of appellant, to have the other half.

After furnishing about five or six hundred of the amount she commenced suit against the appellant to recover it back. While her suit in that behalf was pending, negotiations between herself and appellant’s attorney for a settlement were had, which resulted in the alleged agreement of appellant to pay her the money now sued for, and the dismissal of her said suit.

The promise to pay her this money, if any promise was made, was made by the attorney of the appellant in that suit, and it was after the alleged promise was made that appellee dismissed her suit.

Although it may be conceded that the evidence fails to show any express authority from appellant to his attorney to compromise or settle the suit with appellee, the appellant was in court at the time of the trial and testified in the case as to other matters, and it was shown that the attorney and the appellee talked together about what appellant would or might do in case that suit was dismissed.

The evidence plainly showed that appellee dismissed her suit in the belief that she was to receive the money then, as she claims, promised to her, and the inference is quite as plain that she would not have done so except she supposed the attorney had authority to make the promise.

Ho instructions on either side were offered, and the jury were left at liberty to draw the inference that the attorney did have express authority to make the promise, from the fact that appellant was present at the trial and testified in the case, without in any manner denying the authority of his attorney to make the promise for him. The judgment is right and it will be affirmed.


author: per Curiam:.

text:
    Eva Aurand v. Ambrose J. Aurand et al.
    1. Appeal Bonds — Effect of One Given on Appeal from the Appellate to the Supreme Court upon One Given on an Appeal from the Circuit to the Appellate Court. — The giving of an appeal bond on an appeal from the Appellate to the Supreme Court, does not operate to supersede and discharge the obligation created by a bond given on appeal from the Circuit to the Appellate Court, nor does the payment of the amount secured by one satisfy the amount due upon the other. The two securities are cumulative.
    Debt, on appeal bonds. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.
    Reversed and.remanded.
    Opinion filed November 26, 1901.
    Joseph J. Simmons, attorney for plaintiff in error.
    Ho appearance by defendants in error.
   Opinion

per Curiam:.

Two actions of debt on appeal bonds for $1,000 each were begun. The two cases were consolidated and heard together in the Circuit Court (Hos. 156,011 ■ and 186,723), being, respectively, to assess damages on breach assigned on the bonds given on appeal to this court from the Circuit Court, and on appeal from this court to the Supreme Court.

The Circuit Court held', in effect, that there was a satisfaction of both bonds by the showing that one of them had been paid.

We do not think so. The decree was for $30 a month alimony due the wife, and was for a sum constantly being augmented, as fast as the installments of alimony matured.

The giving of the appeal bond on the appeal from this court to the Supreme Court, did not operate to supersede and discharge the obligation created by the bond given on the appeal from the Circuit Court to this court, nor did the payment of the amount secured by the first satisfy the amount due on the last. The two securities were cumulative and were liable until paid. Aurand v. Aurand, 87 Ill. App. 29; Becker v. The People, 164 Ill. 267.

Huntington, the surety, who signed both bonds, will continue liable until payment of both bonds is made.

The judgment of the Circuit Court will therefore be reversed and the cause remanded.


author: per Curiam.

text:
    Augusta Middeke, Adm’r, etc., v. Rose Balder.
    1. Practice — Where a Decree is Reversed and Remanded. — Where a decree is reversed and the cause remanded for further proceedings consistent with the decision, and such further proceedings have been had and a decree entered accordingly, from which another appeal is prosecuted, no new evidence being introduced and the record in all material respects being the same as when the cause was previously reviewed, the decision then made, so far as this court is concerned, is binding and conclusive.
    Bill of Interpleader. — Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.
    Affirmed.
    Opinion filed November 26, 1901.
    Geo. F. Ort, attorney for appellant.
    Thos. H. Joyce, Dent & Whitman and W. O. Bindley, attorneys for appellees.
   Opinion

per Curiam.

The facts in this cause will be found stated in Balder v. Middeke, 92 Ill. App. 227. The decree then under consideration was reversed and the cause “remanded for further proceedings consistent wTith this decision.” Such further proceedings have been had and a decree entered accordingly, from which this appeal is prosecuted. Ho new evidence was introduced, and the record in all material respects is the same as when the cause was before reviewed in the Appellate Court.

The decision then made and the views then expressed, so far as this court is concerned, are binding and conclusive.

The judgment of the Circuit Court is affirmed.


author: Mr. Presiding Justice Freeman

text:
    George Harper et al. v. John Mangel.
    1. Statutes— Construction of Sec. 19, Chap. £2, R. S.— Section 19, Chapter 33, R. S., entitled Chancery, and providing, in substance, that when a defendant not summoned or served with a copy of the bill, shall within a year after notice in writing given him of a decree against him, or within three years, if no such notice has been given him, appear in open court and petition to be heard touching such decree, was intended to give an additional remedy and not to limit or take away those already in existence.
    3. Same. — Applicability of the Statute. — Where the allegation of a bill is that the return indorsed upon a writ as served upon the defendant is false, and that such writ never was in fact served upon him by any one in any manner, it may well be doubted if the statute (Sec. 19, Chap. 23, ti. S.) is applicable to a decree obtained upon such a return.
    3. Returns— Of Service — Remedy When False. — If a sheriff or other officer, by fraud and collusion with a party, or by mistake, makes a false return, a court of equity has full power and jurisdiction to interpose and give the appropriate relief, and to permit the party injured to aver against the truth of the return and to show it to be false, although it is a matter of record.
    Interlocutory Decree, granting an injunction. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1901.
    Affirmed.
    Opinion filed November 26, 1901.
    Flower, Vroman & Musgrave, attorneys for appellants.

      Eugene E. Prussing, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from an interlocutory order granting a temporary injunction. Appellants filed a bill seeking to restrain appellee from maintaining a fruit stand which it was claimed constituted a nuisance. The summons was returned with an indorsement stating that appellee had been duly served, which return, it is now claimed, was false. It appearing, therefore, upon the face of the papers, that appellee had failed to appear after due summons, default was entered and a permanent injunction issued at the April term of the Circuit Court in accordance with the prayer of the bill. ■ It was not until after the expiration of the term in which that injunction decree was obtained, that appellee, as it is claimed, received the first intimation of what had occurred by service upon him of the final writ. Thereupon he filed the bill now under consideration and obtained at that June term of said court the temporary injunction now appealed from, enjoining appellants herein from proceeding under the former decree, and staying the permanent writ of injunction issued in accordance therewith.

The order now appealed from was issued in the same court by the same judge who granted the original injunction now stayed. It was entered in order to preserve the status until the bill can be heard upon its merits. It is urged the original decree, which is now stayed, even though entered without service of process, should not be vacated or enjoined unless facts showing a good defense, and that the decree in question is inequitable, are clearly pleaded and proved; and it is contended that the bill in the case at bar does not allege facts showing the original injunction to be inequitable or unjust. That injunction restrained appellee from conducting his business at a stand which it appears from his bill of complaint he was occupying under a lease and by municipal permit, and which he alleges was not prejudicial to appellants and was not a public nuisance. We think these-allegations make out aprima facie case of rightful occupation justifying the temporary restraining order, and its issuance certainly shows no abuse of judicial discretion.

It is, however, contended that the bill can not be maintained, even if it be assumed that appellee has a meritorious defense and has shown diligence, because the statute gives a clear and adequate remedy. (E. S., Chap. 22, Sec. 19.) That statute provides, in substance, that when any defendant not summoned or served with a copy of the bill, shall within a year after notice in writing given him of a decree against him, or within three years, if no such notice has been given him, appear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court may deem reasonable, he may appear and answer the bill as if no decree had been made. This provision was intended to give an additional remedy, not to limit or take away those already in existence. Wellington v. Hermans, 110 Ill. 564 (574). It is applicable in cases such as Martin v. Gilmore, 72 Ill. 193 (199), where service was had only by publication upon the party defendant, who was subsequently granted leave to answer the bill after decree. As the court there said, “ such decree is rarely interlocutory.” But -the case before us is based upon a different showing. Here the allegation is that the return indorsed on the summons to the effect that such summons had been served on appellee “ was and is false or mistaken or untrue,” and that the writ was never served upon appellee by any one in any manner. It may Well be doubted whether the statute in question is applicable to a final decree obtained upon a return regular upon its face, but false in fact. Such decree is not merely interlocutory. It purports to be final. It is said in Owens v. Ranstead, 22 Ill. 161 (169), “Who can doubt that it is unjust and unconscientiou's to enforce a judgment so obtained? We think in all cases, if a sheriff or other officer, by fraud and collusion with a party, or by mistake, makes a false return, a court of equity has full power and jurisdiction to interpose and give the appropriate relief, and to permit the party injured, so that the remedy, may be effective, to aver against the truth of the return and show it to be false, although it is a matter of record.” To compel the defendant to enter his appearance in a case where he had not been summoned as a condition of relief against a false return, might in many cases afford an inadequate remedy, and “ a judgment obtained without notice, and without appearance, is an injury to the rights of a party, for which he should have adequate remedy.” Owens v. Eanstead, supra.

In the case of Loyd v. Malone, 23 Ill. 41, it was held that an original bill by an infant to impeach and set aside an order of partition and sale of lands, could be maintained. It is true, however, that equity has no jurisdiction to enjoin a judgment at law merely because the process of that court was not served on the defendant, unless it is further shown the judgment is inequitable or unjust. Burch v. West, 134 Ill. 258 (26S); Colson v. Leitsch, 110 Ill. 504, (508). But where a prima facie case is made showing such inequity or injustice, a temporary injunction against a judgment at law is certainly proper pending further inquiry by the court. And if at law, why not also a decree in chancery ? In the case of Davis v. Fresback, 81 Ill. 393, a bill was entertained to set aside a sale under a decree of foreclosure on the ground that no service had been had and the sheriff’s return on the summons was false and fraudulent, although afterward upon the evidence relief -was not granted.

We regard the doctrine as stated by Mr. High in his work on Injunctions, Sec. 270, as applicable to the case before us. He says: “Upon the question of the extent to which relief by injunction may be granted against proceedings under a decree in chancery the authorities are somewhat conflicting and not wholly reconcilable. Upon principle it is difficult to perceive any satisfactory reason why the jurisdiction should not be extended to restraining the enforcement of decrees in chancery upon the same grounds and for like reasons as those which underlie the jurisdiction in restraint of the enforcement of judgments at law. A decree being the final and formal embodiment of the judicial action qf a court of equity, as a judgment is that of law, no higher degree of inviolability is perceived to attach to the one judicial determination than attaches to the other.”

We find no error in the interlocutory order of the Circuit Court complained of, and it is affirmed.


author: Me. Justice Waterman

text:
    Ella S. Leonard v. Warren Springer.

      Deeds — Reasons for Stating the Consideration — Estoppel.—The reason for stating a consideration in a deed is that where the instrument acknowledges the receipt of the consideration, the grantee and all parties claiming under him are estopped from denying that it was paid for the purpose of destroying the effect and operation of the instrument, although they may disapprove the payment of it for the purpose of recovering the consideration mentioned. 1.
    2. Same — Statement of a Valuable Consideration. — The statement of a valuable consideration in a deed is of service, because a court of equity, in respect to contracts concerning lands, acts upon valuable considerations and representations.
    3. Same — Effect of the Statement of a False Consideration. — While it is true that the mere false statement of the consideration of a deed does not of itself necessarily vitiate the instrument, yet .there may be cases where a false statement of a consideration may of itself destroy the whole transaction.
    4. Same — Where the Consideration is Untruthfully Stated — Fraud. —If the transaction upon which a deed purports to be founded and the consideration for which it was executed is made to appear to be untruthfully stated in the instrument, if the intent operates fraudulently, such instrument may lose all its binding qualities in equity even though it may be conclusive at law.
    5. Same — Where No Consideration is Expressed — General Rule in Equity. — The general rule in equity, where no consideration is expressed in a deed, is that a party may aver and prove a consideration in support of the instrument and where a consideration is expressed, he may still aver and prove other considerations, not inconsistent with those therein already expressed.
    Action for Fraud and Deceit. — Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Alden, Latham & Young, attorneys for appellant.
    W. E". Gemmill, attorney for appellee.
   Me. Justice Waterman

delivered the opinion of the court.

The declaration in this case alleges that the appellee, Warren Springer, being the owner of a leasehold interest in the premises known as 188 East Monroe street, in Chicago, which was and is well known to him to be of no value, for the purpose of cheating and defrauding the plaintiff and others, conspired with one John E. McGinness and the defendant-Charles Z. Miller, whereby on July 29, 1897, Springer and his wife conveyed said leasehold interest to said McGinness without any consideration therefor, and on the 6th day of August, 1897, the said McGinness conveyed his interest in said real estate to Charles Z. Miller, who was a man of no financial means or responsibility, the said McGinness and the said defendant Miller, being mere tools in the hands of said Springer. That the consideration stated in the deed from McGinness to Miller ivas $100,000, but in fact there was no consideration for said deed. That as a part of the transaction and for the purpose of cheating and defrauding the plaintiff and others, Springer had Miller execute to the Chicago Title <fc Trust Company “ a trust deed of his interest in said leasehold securing the payment of eleven notes for the sum of $500 each, ten notes for the sum of $750 each, all due in one year after date, and sixty-two notes for the sum of $1,000 each, all due in fifteen months after date; all of which notes were executed by Miller, payable to his own order and by him indorsed, and were then and there, in pursuance of said design to cheat and defraud the plaintiff and others, turned over to Springer.” And in consideration of the services so rendered by Miller to Springer and the use of the name of Miller, Springer then and there, paid to Miller the sum of $500 in cash, which was all the money ever paid by Springer, or received by Miller in the transaction. That Springer, for the purpose of carrying out his scheme to cheat and defraud the plaintiff and others, caused the deed executed by himself and his wife to McGinness to be filed for record in the recorder’s office of Cook county, and for the same purpose caused the deed from McGinness to Miller to be filed for record in the same office,and also the trust deed from Miller to the Chicago Title and Trust Company, and that Springer caused the Chicago Title and Trust Company to be named as trustee in the trust deed and in the notes, for the purpose of committing a fraud upon the plaintiff and other parties, who might, in investigating the value of said notes and said security, believe that the transactions represented by them were Iona fide transactions, when in truth said property was never sold to McGinness nor to Miller for any sum. That Springer caused the trust deed aforesaid, to be made in such a manner that it would appear to be given upon the entire premises known as 188 East Monroe street, Chicago, as security for an indebtedness of $75,000, when in fact, the only interest Springer or McGinness or Miller had in said premises was a leasehold interest, which Springer then well knew was entirely worthless. That afterward Springer took possession of said notes and obtained an abstract showing a title to said property, including the trust deed, and well knowing that said notes had no security and that McGinness was utterly worthless financially, and that Miller was utterly worthless financially, Springer placed the notes on the market in the city of Chicago for sale, and the plaintiff avers that subsequently she was desirous of investing $4,000 in good real estate security and for that purpose applied to a broker in Chicago, and that she was thereupon shown an abstract of title showing that the property herein described had been sold by Springer through the said McGinness to the defendant Miller, and that the Chicago Title and Trust Company was the trustee named in the trust deeds for $75,000, given by Miller to secure a series of notes for that sum, and that she inferred therefrom that the amounts stated in the deeds were correct and that the purchase price of said property was $100,000 and that upon examination of the trust deed to the Chicago Title and Trust Company she was thereby made to believe that one-quarter of the purchase money had already been paid and therefore concluded that said premises were worth $100,000, and that the trust deed upon the same was ample security to any party owning such notes as aforesaid, and thereupon she was shown four of said $1,000 notes, which notes were drawn by the defendant Springer under his direction, and which notes were all printed, except the signature, and were caused by Springer to be printed, and the Chicago Title and Trust Company named as trustee in said notes, written across the end thereof, and each of which said notes had indorsed on the back as follows:

“ For and in consideration of the interest being paid in full, the time is extended to May 1st, A. D. 1899. Charles Z. Miller.”
And-the following:
“Trustee’s Certificate.
This is to certify that this note is one of the following eighty-three notes for the aggregate amount of seventy-five thousand dollars: Eleven notes for $500 each, ten notes for $750 each, sixty-two notes for $1,000 each, secured by trust deed to Chicago Title and Trust Company, trustee, recorded in the recorder’s office of Cook county, 111., as document FTo. 2,586,840.
Chicago Title and Trust Company,
By Win. C. Mblack, Sec’y.”

And the plaintiff avers that relying on the truth in the statement in said deeds from Springer through McG-inness to Miller and upon the truth of the statement in said trust deed from Miller to the Chicago Title and Trust Company, and upon the statement and representation appearing upon the face of said notes, she then and there invested her monev in said securities and then and there paid the sum of $4,000 for said notes; and the defendant avers that on the 10th day of August, 1896, she was informed and has since learned it was the truth, that the pretended sale by Springer through McGinness to Miller was a bogus transaction, and that the trust deed to the Chicago Title and Trust Company was without consideration, "and that the entire transaction from the drawing and having printed said notes to the recording of said trust deed, was a scheme to cheat and defraud the plaintiff and done for the purpose of placing upon the market notes that were fraudulent and of no value whatever, and that said notes so purchased by the plaintiff were and are worthless, and that the property was and is worthless, and the leasehold interest of Springer was and is worthless, and thereby the plaintiff says she has been damaged to the extent of §6,000, and therefore brings suit.

A general demurrer for the defendant Springer to this declaration was sustained. That the allegations of the plaintiff’s declaration, if true, constitute a very immoral transaction, there can be doubt.

The question presented to the court is, whether her declaration states a good cause of action, not whether she may not have a remedy in some other proceeding or- action. Appellant’s declaration, as the brief of her counsel in this case, proceeds upon the theory that the statement of consideration mentioned in a deed is a representation not merely that the deed was made upon a good or valuable consideration, but that the consideration mentioned in the deed wa.s actual; and that if it be not so, any person deceived by said statement and sustaining loss by being so misled, has a cause of action against the person who placed in the deed made by him a statement of consideration variant from the actual fact.

Counsel have referred us to no case so holding, and we are not aware of any.

As a matter of practice it is notorious that very frequently little care is taken by grantors to state with accuracy, the exact consideration for making a deed. It is quite customary in the making of deeds upon mortgaged property to fail to exclude the amount of the mortgage from the statement of consideration, although the grantee may not assume the same. The deed of the Astor House in Hew York City from John Jacob Astor to his son William is said to have had an expressed consideration of one dollar only, the element of love and affection which undoubtedly was a part of the consideration, not being set forth.

If the public have a right to rely upon a statement of consideration in a deed, being in accordance with the fact, we see no reason why, if the consideration mentioned should be less than that given, and any one is thereby misled to his injury, a cause of action would not arise as much as in a case where the consideration is overstated. The consideration named in a deed is not placed there for the purpose of giving information or making a representation to the public. It is simply for the purpose of showing or representing that the deed was.made upon a good or valuable consideration. Prior to the statute of uses enacted, created in the reign of Henry the VIII., a gift of land to a person and his heirs accompanied by livery of seizin, that is, a transfer by feoffment, was effectual in law to convey the entire estate without any consideration. The law did not require a consideration; and if a deed of feoffment was delivered, its seal raised a conclusive presumption of a consideration. Only by presumption established by courts of equity was the rule created that if a conveyance for a fee was made without any use being declared and without any consideration, although the legal title passed to the feoffee, a use arose in favor of the feoffor, so that having parted with the legal estate, he remained possessed of all the equitable interests, and rights; and thereby a court of chancery gave to the cestui que trust the equitable estate in fee vested in him. Pomeroy’s Equity Jurisprudence, Sec. 981.

The reason for stating a consideration in a deed is that where a deed acknowledges the receipt of a consideration, the grantee and all claiming under him are estopped from denying that one was paid for the purpose of destroying the effect and operation of the deed, although they may disprove the payment for the purpose of recovering the consideration mentioned. 2 Washburn on Eeal Property, 401.

And by the ordinary deed in modern use the acknowledgment by the grantor of a consideration received by him avoids a raising of a resulting use in favor of the grantor.

The statement of a valuable consideration in a deed is also of service, because á court of equity in respect to contracts concerning lands acts upon valuable considerations, representations and acts. Pomeroy’s Equity Jurisprudence, sections 1294,1405 and section 370.

While it is true that a mere false statement of the consideration of a deed does -not of itself necessarily vitiate a deed, yet there may be cases where a false statement of a consideration may of itself destroy the whole transaction.

The general rule in equity is that where no consideration is expressed in a deed, a party may aver and prove consideration in support of it, and where a consideration is expressed a man may still aver other considerations, not inconsistent with those expressed.

If the transaction on which a deed purports to be founded and the consideration for which it was executed is made to appear to be untruthfully stated, the instrument may, if the intent would operate fraudulently, lose all its binding qualities in equity, even though it would be conclusive at law. Watt & Grove, 2d Sch. & Lef. 492, 500, 501; Clarkson v. Ranway, 2d Peere Williams, 202; Hartopp v. Hartopp, 17 Ves. 192; Kerr on Fraud and Mistake, 191.

The declaration does not show that the abstract of title was in any respect false. The plaintiff was by said abstract informed what the property was upon which the notes purported to be secured. She, by said abstract, was afforded the means of ascertaining what title had been conveyed to the Chicago Title and Trust Company for the purpose of securing the notes and she had at her command the ordinary and usual means of ascertaining, not only the value of said title, but the value of the premises themselves. That property is often convejmd under an honest but mistaken belief that it is adequate security for that which it purports to be, is wTell known.

Counsel for appellant cite the 14th volume of the 2d edition of the Am. and Eng. Ency. of Law, page 22, in which it is said, “ that many individual judges have gone so far as to lay down the rule broadly, that a person is entitled to relief on the ground of fraud in the case of positive false representations, intended to be relied upon and to deceive, notwithstanding he had a present opportunity of discovering that the representations were false, and might have known the truth by a proper examination and inquiry, and notwithstanding his means of knowledge were equal to those of the other party.”

It will be observed the statement is as to positive' false representations.

In the present case no positive false representations were averred, but merely that the plaintiff took the statement of consideration contained in the deed as a representation that such consideration had actually been paid therefor. Nor is the case of representations made by circulars and advertisement put forth by corporations and promoters applicable. In such case the representation is actual and positive, as well as one concerning which those who make it are necessarily much better informed than others can be, and usually one concerning which the public can learn the actual facts only by inquiry of those who make the statement. •

The declaration fails to allege that the trust deed bv which the notes purported to be secured contained any false statement, nor is it alleged that the defendant ever knew the plaintiff or made any representations to her. Nor is it charged that the broker from whom the plaintiff purchased the notes, was then, or ever, the agent of the defendant, or that the defendant obtained any of the money paid by the plaintiff, or in any way or wise derived any benefit from the sale of the notes to her.

The demurrer was properly sustained and the judgment of the Superior Court is affirmed.


author: Mb. Justice Seabs

text:
    Western Stone Co. v. Frederick O. Earnshaw.
    1. Limitations — As a Defense to an Amended or Additional Count. —To an amended or additional count, filed subsequently to the commencement of the suit, which is merely a re-statement of the cause of action set up in the original declaration, the statute of limitations does not present a defense.
    2. Recovery — For Damages Not Reasonably to be Anticipated.— For a result so unusual and extraordinary as the heat in an engine shed of a manufacturing company, from the lack of ventilation in such shed, when constructed in the usual manner, the company can not be held liable.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Donne, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed December 12, 1901.
    Statement. — Appellee brought this action to recover damages for personal injury sustained by him while in the employ of appellant, and caused, it is alleged, through the negligence of appellant. The particular negligence which it is sought to establish as the ground of the action is a failure of appellant to place a sufficient number of openings as windows of a building in which appellee was obliged to work while operating an engine for appellant. The building in question was a wooden shed, twelve by eighteen feet in dimensions, situated upon the edge of a stone quarry, in which shed there was an engine used to operate a hoisting derrick. This house or shed was built of wood, the sides being boards nailed straight up and down. The floor was two and one-half feet above the ground and about seven feet below the eaves .inside. From the floor to the apex of the roof the distance was about eleven feet. The openings in this building consisted of two doors, one on the east side and one on the south side, and four windows, two on the north side, one on the east side and one on the south side. The two doors were each two feet and four inches by six feet and four inches in dimensions. The window on the east side of the building was three feet by five feet and eight inches. The window in the south side was two feet and five inches by three feet. The two windows in the north side were each two feet nine inches by two feet ten inches. The window on the east side was located so that its longer side was parallel with the floor, and the bottom, of it about four feet and six inches above the floor. Appellee, who was the engineer in charge of the engine in this building, stood upon a platform about twenty-one inches above the floor and several feet from the boiler of the engine. A brother of. appellee was employed as superintendent of appellant’s works. To him appellee presented a request that there be additional ventilators put in the building, and appellee testified that his brother said that he would do it in a day or so. The time of this promise is fixed by the testimony as two or three days before the injury in question. The superintendent, appellee’s brother, was not called as a witness by either litigant.
    At the time of the injury the weather was unusually hot. Appellee testified:
    “ I begun work there the 23d of March (1895). The weather was rather cool when I started to work there. Along about the 25th of June the weather got intensely hot, and I got a pail of water in there and used to have m'v handkerchief in it and wring it out to wash my face and wash the perspiration out of my eyes. I did that, for I couldn’t see; the perspiration ran into my eyes and smarted so. I couldn’t see the derrick outside. * * * It was the hottest weather I ever experienced. * * * I asked the superintendent to put some ventilators in the building. I asked him to put a window up near, the eaves so asT could get some of the west breeze, and also to put another opening on the outside of the building east of where the - boiler stood, so that what breeze blew through from the south would blow on me, and would not blow more hot air over to me, and he said he would do that. The carpenter was busy, but he said that he would do it in a day or so.”
    On the 28th of June, 1895; while appellee was engaged in his work as engineer in the engine shed, he was overcome by heat, fell, and was severely injured by the fall, and probably also by coming in contact with some of the moving machinery or belting. One of appellee’s arms is permanently crippled as a result of the injury.
    The evidence discloses that upon the day of the injury the wind was from the northeast.
    The original narr. set up as ground of action negligence of appellant in failing to furnish to its employe, appellee, suitable and safe place in which to-perform his work.
    On January 15. 1900, which was more than two years after the injury, appellee filed an amended or additional count, setting up the same negligence as that alleged by the original narr., and in addition an allegation of complaint by appellee as to the insufficient and unsafe ventilation and a promise by representative of appellant to provide ventilation and a failure to comply with the promise.
    The statute of limitations was pleaded to this additional count. A demurrer thereto by the appellee was sustained by the court.
    The issues were submitted to a jury, and a verdict was returned finding the appellant guilty, and assessing appellee’s damages at $10,000. From judgment upon this verdict this appeal is prosecuted.
    F. J. Canty and A. B. Melville, attorneys for appellant; J. C. M. Clow, of counsel.
    Phelps & Cleland, attorneys for appellee.
   Mb. Justice Seabs

delivered the opinion of the court.

We are of the opinion that the learned trial court properly sustained the demurrer of appellee to the plea of the statute of limitations which was interposed to the additional count of the declaration.

The gist of the negligence set'up as a ground of action was the same in the additional count as in the original declaration. The addition in the former of an allegation of complaint by appellee and promise to repair by appellant, did not present a new cause of action. The additional count was merely a re-statement of the cause of action set up by the original declaration. Therefore the statute of limitations did not present a defense and the demurrer to it was properly sustained. Pardridge v. Gilbridge, 98 Ill. App. 134.

The important and controlling question presented upon this appeal is as to a right of recovery upon the facts disclosed by the evidence. The appellant contends that the evidence shows no actionable negligence. We are of opinion that this contention is sound. The facts as established are that upon an extremely hot day the appellee was overcome by the heat. Doubtless the jury might infer from the evidence that this heated condition of the air in the engine shed was due partly to the heat generated by the boiler furnace and partly to the heat of the outside atmosphere. The jury were also warranted in finding from the evidence that the superintendent of appellant had promised appellee a day or two before the injury that additional ventilation should be provided in the engine shed within a day or so. But all these facts and inferences therefrom fall short of establishing a valid ground of action. There is still an essential element lacking, viz., a defective condition in the engine shed which was permitted through negligence of appellant, and which operated as a proximate cause of the injury. There is no evidence whatever which would warrant a conclusion that the engine shed was not ordinarily safe for use by the engineer. Neither appellee nor appellant are shown to have even considered a danger as arising from the condition of the house. It is true that appellee asked for more openings to provide further ventilation, but that this was merely for comfort and convenience is as inferable as that it was to obviate an existing peril. There was no suggestion of a complaint or a notice of danger in the request made by appellee for additional openings — nothing from which the employer might learn that his employe was exposed to peril by reason of a lack of sufficient openings. It was merely a request — neither a complaint nor a notice.

There were two doors' and four windows in the shed, furnishing a considerable amount of opening for a building twelve by eighteen feet in dimensions. The additional openings suggested by appellee in his request to his brother, were for the west and south sides of the building, so that appellee “ could get some of the west breeze and so what breeze blew through from the south would blow on him and would not blow on the boiler and blow more hot air over to him.” The wind, upon the day when the injury occurred, was in the northeast. Juries are not confined to the facts directly established by the evidence, but may also make inferences, fairly deducible from facts directly established, a basis of their verdict. But there must be some foundation of fact from which such inference can be fairly drawrn. Here there is absolutely no ground for inferring that either appellee’s or appellant’s representatives regarded the shed as being in any degree dangerous as a place to work. Hor is there any evidence which, in our opinion, warranted a jury in concluding that the shed was in fact dangerous. Hence there can be no conclusion that appellant was lacking in ordinary care in this regard.

That there could be any danger to any one employed in the engine shed from lack of ventilation, as the shed was constructed, could not, we think, be anticipated. For a result so unusual and extraordinary as not reasonably to be anticipated, the appellant can not be held liable. Fent v. T. P. & W. Ry. Co., 59 Ill. 349; Craven v. Braun, 73 Ill. App. 189; Braun v. Craven, 175 Ill. 401.

In the Fent case, supra, the court said, speaking of liability for negligence:

“Every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the results of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration.”

The promise to add openings for more ventilation does not aid appellee’s case, for the promise was not shown to have been made to obviate a danger or in view of any danger known to either appellant or appellee. The time within which the additional openings were to be made, as promised bv appellee’s brother, had scarcely elapsed, and it is apparent from the evidence that had they been made they would upon this day have afforded none of the additional westerly or southerly breezes, to obtain the benefit of which they were intended, for upon that day the wind was from another quarter. Appellee, while attending to his duties, was stationed in the northeast part of the building. He testified : ,,

“ This platform I stood on was about three or four feet from the east end of the building and a little bit to the north side. It was nearer the north side than the south side. The north side of the building was already furnished with two windows, each two feet nine inches by two feet ten inches; and the east side of the building was provided with a door two feet four inches by six feet four inches, and a window three feet by five feet eight inches.”

There is no suggestion in the evidence and no ground for inference that these four openings in a building twelve by eighteen feet in dimensions, were inadequate to give appellee the benefit of all the breeze which came from the northeast, and upon that day there was no other breeze. Ho additional openings were requested by appellee upon the north or east.

Appellee suffered what is commonly called a “heat stroke,” or prostration from heat, which, so far as the evidence discloses, was caused by uncommonly hot weather, and was in no manner caused by any lack of ordinary care upon the part of his employer. The mere relationship of employer can not of itself be made a ground for imposing the burden of appellee’s misfortune upon appellant.

The judgment is reversed.


author: Mr. Justice Adams

text:
    Frank H. Hebard v. Abram E. Mabie, Adm’r, etc.
    1. Drivers — Of Vehicles in Public Streets — Duties.—It is not the duty of a driver of a vehicle moving along a public street or highway, to keep a lookout behind so as to see whether children or adults are riding on the rear end of his vehicle;, on the contrary, the duty of such driver is to look ahead, so as to avoid collisions with other vehicles or with persons.

      2. Instructions — Requiring a Driver to Look Backward, etc. — In an action against the driver of an omnibus for personal injuries, an instruction which assumes that the exercise of ordinary care requires such driver to look backward toward the rear steps of the bus, etc., is erroneous.
    3. Children — Duties of Drivers of Vehicles Totvard. — The driver of a vehicle in the public streets does not owe to children the duty of preventing them from climbing upon his vehicle, which by its rumble or movement may excite a childish desire to mount and ride.
    4. Negligence — Not to be Imputed to a Child. —Personal negligence is not to be imputed to a child five and one-half years of age.
    Trespass on the Case, for death by negligent acts. Appeal from the Circuit Court of Cook County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 12, 1901.
    F. J. Canty and J. B. Brady, attorneys for appellant; J. O. M. Clow, of counsel.
    Waters, Johnson & Pegler, attorneys for appellee; Vincent G. Gallagher, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

The declaration avers, in substance, that June 13, 1896, the defendant (appellee here) was in possession of two busses, which were coupled together and were being drawn along Winchester avenue, in the city of Chicago, by a team of horses driven by defendant’s driver; that plaintiff’s intestate, a child-about five and one-half years of age, was riding on the step at the rear end of the front bus, and that the driver carelessly ordered said intestate to get off the bus and carelessly struck back at him with a whip, by reason of which careless conduct of the driver, said intestate became alarmed, jumped off, was knocked down and run over by the second or rear bus, and so injured, that, to wit, June 15, 1896, he, by reason of said injuries, died.

We have carefully considered the evidence and find it very conflicting, so much so that had a verdict been rendered for appellant, we would not feel warranted in setting it aside. In this state of the evidence the instructions should be accurate. Chicago C. Ry. Co. v. Canevin, 72 Ill. App. 81, and cases cited.

The court instructed the jury as follows :

“ The court instructs the jury that if you believe and find from a preponderance of the evidence, that the steps bn the rear end of the first bus were an attractive place for children of tender years, and that the driver knew that fact, or in the exercise of ordinary care might have known it, and that the plaintiff’s intestate was a child of tender years and was attracted to said steps and was riding thereon, and that the driver knew that fact, or by the exercise of ordinary care might have known it, and also knew that it was dangerous for plaintiff’s intestate to get off from said bus while the busses were in motion, and nevertheless ordered plaintiff’s intestate to get off from said bus while the busses were in motion, and that pursuant to said order, plaintiff’s intestate did get off from said bus. and in doing so, exercised that care and caution which might reasonably be expected from a child of his intelligence and discretion to avoid injury, and if you further believe and find from a preponderance of the evidence, that such conduct upon the part of the driver was wanton or willful negligence which caused the injuries to plaintiff’s intestate, and that by reason of said injuries, plaintiff’s intestate died, then you should find the defendant guilty,”

Whether the steps on the rear end of the first bus were, or not, an attractive place for children, is not a material question in the case. It is not the duty of a driver of a bus or other vehicle, moving along a public street or highway to keep a look-out behind so as to know whether children or adults are riding on the rear end of the bus or other vehicle. On the contrary, the duty of such driver is to look ahead, so as to avoid collisions with other vehicles, or with persons. Suppose the driver in the present case had been looking back, watching the steps on the rear end of the bus (assuming that he could see the steps, which on the evidence is at least doubtful), and suppose that while he was so looking back the busses or the front bus had, by reason of his failure to look ahead, collided with a person, while the latter was in the exercise of ordinary care for his-safety, can there be any doubt that the defendant would be liable for the driver’s negligence in failing to look ahead ! We think not. It was so expressly held in Heldmaier v. Taman, 88 Ill. App. 209. If exercise of ordinary care by a driver requires him to look ahead while driving, and also requires him to look behind him, an owner, in order to escape liability, must employ an Argus as driver, if such can be found. The instruction assumes that the exercise of ordinary care required the driver to look backward toward the rear steps of the bus. Such is not the law. In C. W. & I. R. R. Co. v. Roath, 35 Ill. App. 349, the plaintiff attempted to get upon the rear end of a moving railroad train, at a street crossing, and was injured. The court, Moran, J., delivering the opinion, says:

“If steam roads owe the duty of preventing children from climbing on their moving trains at crossings, then the operator of the street car, or the driver of a farmer’s cart, or any other vehicle which runs upon the street, and by its movement or its rumble excites a childish desire to mount and ride, must in logic and in reason owe a similar duty, and be alike liable for its non-performance. Such a doctrine is not founded in justice or reason, and is without the support of legal sanction.”

In Chicago W. Div. Ry. Co. v. Hair, 57 Ill. App. 587, the plaintiff, a boy between five and six years old, either in attempting to get on the rear platform of a street car, or having got on it, fell off and was injured. The car was on its way to a repair shop, was not being run for the purpose of conveying passengers, and the plaintiff was not a passenger nor did he intend to become one. In these respects the case was similar to the present one. The court say:

“Unquestionably passenger cars as well as teams of all kinds, do afford an enticemént to children to jump on, ‘hitch on,’ make use of the vehicle in play, but we are aware of no rale making it the duty of those in charge of cars or carriages to be all the while so stationed that boys can not jump or hitch thereon in mere sport. As to this, see Chicago & W. I. Ry. Co. v. Roath, 35 Ill. App. 349. It is a favorite amusement of boys to jump on a car, ride a short distance and jump off. Also to jump on and ‘ring up fares on the conductor.’ Car companies are bound at all times not only to exercise ordinary care, but ofttimes great care, that no one in the street is ran over or injured, but this care is due not so much to trespassers as to those making use of the street or car in an orderly and proper manner.”

The conclusion which the instruction leaves the jury at liberty to deduce from the hypothetical facts stated in it, is that the driver was guilty of wanton or willful negligence. There is a distinction between negligence and wanton or willful wrong-doing, and wanton or willful conduct is not averred in the declaration. E. St. L., etc., Ry. v. Jenks, 54 Ill. App. 91; L. N. A., etc., Ry. Co. v. Wurl, 62 lb. 384.

In C. & A. R. R. Co. v. Robinson, 106 Ill. 142, the court say:

“ Reither the declaration nor the ascertained facts show any willful intent on the part of the defendant’s servants to inflict an injury upon the plaintiff. That element is absolutely wanting, in any view that can be taken of the case. Indeed, defendant is not charged with any such intent, and no such issue could be rightfully submitted to the jury.”

Appellant’s counsel urge that the modification of appellant’s twenty-eighth instruction was erroneous. The following is the instruction as given :

28. “ If the jury believe from the evidence that the plaintiff’s intestate was negligent, and that his negligence, if any, was the sole cause of the death of the plaintiff’s intestate herein complained of, and that the driver of the horses drawing the bus did not act willf%d or wanton, then you should find the defendant not guilty.”

The instruction asked was exclusive of the italicized words, which words the court added. The instruction as asked was erroneous. Personal negligence is not to be imputed to a child five and one-half years of age. C. & A. R. R. Co. v. Becker, 84 Ill. 483, 486; Chicago C. Ry. Co. v. Twohy, 95 Ill. App. 318.

And, for the reason stated, and the additional reason that it submitted the question of willful conduct of the driver to the jury, the instruction is erroneous. Appellant, however, is precluded from objection to the modification of an erroneous instruction requested on his behalf.

We find no reversible error in the record, urged in the argument of appellant’s counsel, except the giving of the instruction first above quoted. For the error in giving that instruction, the judgment will be .reversed and the cause remanded.